Barge Site Lawsuit - savary island committee

tfo.
Vancouver Registry
In the Supreme Court of British Columbia
Between
and
ANN WEST, JOHN LAWRENCE, JOHN MCINTOSH, CANDACE
MCINTOSH, STEPHANIE MARY YORATH and JAVA SEA
INVESTMENTS INC.
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF
BRITISH COLUMBIA, REPRESENTED BY THE MINISTER OF
AGRICULTURE AND LANDS and POWELL RIVER REGIONAL
DISTRICT
NOTICE OF CIVIL CLAIM
Plaintiffs
Defendants
This action has been started by the Plaintiffs for the relief set out in Part 2 below.
If you intend to respond to this action, you or your lawyer must
(a)
(b)
file a Response to Civil Claim in Form 2 in the above-named registry of this Court
within the time for Response to Civil Claim described below, and
serve a copy of the filed Response to Civil Claim on the Plaintiffs.
If you intend to make a counterclaim, you or your lawyer must
(a)
(b)
file a Response to Civil Claim in Form 2 and a Counterclaim in Form 3 in the
above-named registry of this Court within the time for Response to Civil Claim
described below, and
serve a copy of the filed Response to Civil Claim and Counterclaim on the
Plaintiffs and on any new parties named in the Counterclaim.
JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the Response to
Civil Claim within the time for Response to Civil Claim described below.

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Time for response to civil claim
A Response to Civil Claim must be filed and served on the Plaintiffs,
(a)
(b)
(c)
(d)
if you reside anywhere in Canada, within 21 days after the date on which a copy
of the filed notice of civil claim was served on you,
if you reside in the United States of America, within 35 days after the date on
which a copy of the filed notice of civil claim was served on you,
if you reside elsewhere, within 49 days after the date on which a copy of the filed
notice of civil claim was served on you, or
if the time for response to civil claim has been set by Order of the Court, within
that time.
Part 1: STATEMENT OF FACTS
The Plaintiffs
1. The Plaintiff, Ann West, is an individual with an address for service of 3000 — 1055
Georgia Street, Vancouver, British Columbia.
West
2. At all material times to these proceedings, Ann West was the registered owner in fee
simple of the following property located at 3014 Malaspina Promenade, Savary Island,
British Columbia:
Parcel Identifier: 005-097-240
Legal Description: Lot 13, Block 8, Plan 2732, District Lot 1372
Group 1, New Westminster Land District
3. Ann West and her family use this property as a residential/recreational property.
4. The Plaintiff, John Lawrence, is an individual with an address for service of 3000 — 1055
West Georgia Street, Vancouver, British Columbia.
5. At all material times to these proceedings, John Lawrence was the registered owner in
fee simple of the following property located at 3130 Malaspina Promenade, Savary
Island, British Columbia:

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Parcel Identifier: 013-452-444
Legal Description: Lot 24, Block 2, Plan 2732, District Lot 1372
Group 1, New Westminster Land District
6. John Lawrence and his family use this property as a residential/recreational property.
7. The Plaintiffs, John Mcintosh and Candace Mcintosh (the “Mclntoshes”), are individuals
with an address for service of 3000 — 1055 West Georgia Street, Vancouver, British
Columbia.
8. At all material times to these proceedings, the Mcintoshes were the registered owners in
fee simple of the following property located at 3120 Sherman Walk, Savary Island,
British Columbia:
Parcel Identifier: 01 3-461-591
Legal Description: Lot 20, Block 7, Plan 2732, District Lot 1372
Group 1, New Westminster Land District
9. The McI ntoshes and their family use this property as a residential/recreational property.
10. The Plaintiff, Stephanie Mary Yorath, is an individual with an address for service of 3000
— 1055 West Georgia Street, Vancouver, British Columbia.
11. At all material times to these proceedings, Stephanie Mary Yorath, was the registered
owner in fee simple of the following property located at 3064 Malaspina Promenade,
Savary island, British Columbia:
Parcel Identifier: 002-780-1 78
Legal Description: Lot 5, Block 7, Plan 2732, District Lot 1372
Group 1, New Westminster Land District
12. Stephanie Mary Yorath and her family use this property as a residential/recreational
property.
13. The Plaintiff, Java Sea Investments Inc., is a company incorporated under the laws of
the Province of British Columbia with an address for service of 400-110 Cambie Street,
Vancouver, British Columbia.

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14. At all materials times to these proceedings, Java Sea Investments Inc. was the
registered owner in fee simple of the following properties on Savary Island, British
Columbia located at 3134, 3140 and 3146 Malaspina Promenade respectively:
(i) Parcel Identifier: 002-762-960
Legal Description: Lot 23, Block 2, Plan 2732, District Lot 1372
Group 1, New Westminster Land District
(ii) Parcel Identifier: 027-677-427
Legal Description: Parcel B, Block 2, Plan 2732, District Lot 1372,
Group 1, New Westminster Land District, BEING A CONSOLIDATION OF LOTS
3,4,21 & 222
(iii) Parcel Identifier: 027-677-40 1
Legal Description: Parcel A, Block 2, Plan 2732, District Lot 1372,
Group 1, New Westminster Land District, BEING A CONSOLIDATION OF LOTS 5 &
20
15. Java Sea Investments Inc., uses the properties located at 3140 and 3146 Malaspina
Promenade as residential/recreational properties. The property located at 3134
Malaspina Promenade is a vacant lot.
16. Ann West, Stephanie Mary Yorath, John Lawrence, John Mcintosh, Candace Mcintosh
and Java Sea Investments Inc. are together referred to herein as the “Plaintiffs”. The
seven properties owned by the Plaintiffs, as referenced in paragraphs 2, 5, 8, 11 and 14
of this Notice of Civil Claim, are together referred to herein as the “Properties”.
The Defendants
17. The Defendant, Her Majesty the Queen in Right of the Province of British Columbia,
represented by the Minister of Agriculture and Lands (the “Province”), has an address for
service of P.O. BOX 9044 Stn. Provincial Government, Victoria, British Columbia.
18. The Defendant, Powell River Regional District (the “Regional District”), is a regional
district incorporated under the Local Government Act, R.S.B.C. 1996, c. 323 and has an
address for service of 5776 Marine Avenue, Powell River, British Columbia.

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Savarv Island
19. Savary Island is located in the Strait of Georgia, northwest of Powell River and six
kilometres offshore from the Village of Lund on the Sunshine Coast of British Columbia.
It is part of the Regional District.
The Barge Service
20. There is a barge service to Savary Island (the “Barge Service”) that is operated by a
number of entities and lands at the intersection of Malaspina Promenade and Sherman
Walk on Savary Island (the “Barge Landing Site”).
21. The Barge Service began operating in the early 1990’s, unlicensed and unregulated, as
a way of transporting building supplies, bulk fuel, service vehicles and other heavy items
from the Village of Lund to Savary Island. The Barge Service continued to operate in
this way until October 4, 2005, when the Province issued License of Occupation No.
239843 (the “License”) to the Regional District, permitting it to use and occupy the Barge
Landing Site. The License has remained in effect since it was issued in 2005, and
remains in effect as of the date of this Notice of Civil Claim.
22. Since the License was issued to the Regional District, as set out in paragraph 21, the
Barge Service has been operated in breach of the License, particulars of which include
the following:
(a) The Barge Service regularly transports all manner of goods including building
supplies, bulk fuel, service vehicles, recreational vehicles and the personal
belongings of passengers.
(b) The Barge Service regularly transports large numbers of passengers.
(c) There have been no restrictions placed on the months, days and hours of operation
of the Barge Service and, at times, the Barge Service operates seven days per week
from 7:00 A.M. until dusk.
(d) Cars, boats and other materials are stored at or near the Barge Landing Site
throughout the year.
(e) The Barge Landing Site is used for the launching of private recreational vessels.

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(f)
The Regional District has not imposed a landing fee on any of the barge landings.
The License
23. Articles 4.1 of the License provides that the Regional District must, inter alia:
(c) observe, abide by and comply with:
(i) all applicable laws, bylaws, orders, directions, ordinances and
regulations of any government authority having jurisdiction in any way affecting
[its] use or occupation of the [Barge Landing Site], and
(ii)
the provisions of [the License];
(e) not commit any wilful or voluntary waste, spoil or destruction on the [Barge Landing
Site] or do anything on the [Barge Landing Site] that may be or become a nuisance or
annoyance to an owner or occupier of land in the vicinity of the [Barge Landing Site]; and
(p) adhere to the Management Plan dated June 16, 2005 held on file by [the Province];
24. Article 4.2 of the License provides that the Regional District must not permit any person
to do anything that it is restricted from doing under Article 4.
25. Article 11.3 of the License states as follows:
The grant of a sublicence, assignment or transfer of [the License] does not release [the
Regional District] from [its] obligation to observe and perform all the provisions of [the
License] on [its] part to be observed and performed unless [the Province] specifically
releases [it] from such obligation in [the Province’s] consent to the sublicense,
assignment or transfer of [the License].
The Management Plan
26. The License refers to a “Management Plan” held on file by the Province. This
Management Plan requires the Regional District, amongst other things, to take specified
steps to alleviate the impact of the Barge Service on upland property owners, which
would include each of the Plaintiffs.

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The Sublicense
27. Sometime after issuing the License to the Regional District, the Province gave written
consent to the Regional District to issue a sublicense to each of a number of entities to
operate the Barge Service at the Barge Landing Site (the “Sublicense”).
28. The Plaintiffs have not seen or reviewed the Sublicense, however, the Plaintiffs have
previously been provided with a draft of said Sublicense (the “Draft Sublicense”).
29. Article 4 of the Draft Sublicense reads as follows:
The Barge Operator will use the [Barge Landing Site] solely for barge landing purposes
specifically for egress and ingress to and from Savary Island and transporting people,
material (including dangerous goods) and equipment (including vehicles) to and from
Savary Island.
30. Article 6 of the Draft Sublicense provides that the Barge Operator acknowledges having
received and read a copy of the License and covenants and agrees with the Regional
District, inter alia:
(a)
(b)
(c)
to be bound by the terms of the [License];
to perform all of its obligations under the [Sublicense];
not to do or omit to do any act in or around the [Barge Landing Site] which would
cause a breach of the Regional Districts obligations as Barge Operator under the
[License];
(f)
to operate in a manner which will keep the [Barge Landing Site] in a clean and
sanitary condition;
(g)
not to do anything on the [Barge Landing Site] that may become a nuisance or
annoyance to an owner or occupier of land in the vicinity of the [Barge Landing Site],
except as may be reasonably required in the operation of the [Barge Service];
(h)
to carry on and conduct its activities on the [Barge Landing Site] in compliance
with any and all statutes, enactments, bylaws, regulations and orders from time to time in

8
force and to obtain the required approvals and permits thereunder and not to do or omit
to do anything upon or from the [Barge Landing Site] in contravention thereof.
31. Article 7 of the Draft Sublicense provides as follows:
The Barge Operator shall not store any goods, including vehicles, on the [Barge Landing
Site] and shall advise customers to deliver or pick up goods specifically at the time of the
scheduled arrival or departure of the barge.
32. Article 10 of the Draft Sublicense states as follows:
The Barge Operator shall use the [Barge Landing Site] in accordance with all rules
posted at the site and with such other reasonable rules and regulations as the Regional
District may establish from time to time.
33. Article 11 of the Draft Sublicense provides as follows:
The Barge Operator shall prepare Operation Plans setting out procedures to be followed
to mitigate the impacts of the use and to ensure its compliance with the covenants under
Article 6.
The Official Community Plan
34. On February 22, 2007 the Regional District adopted the Savary Island Official
Community Plan (the “OCP”) as Bylaw No, 403. The OCP sets out a vision as to how
the Savary Island community wishes to evolve in the future. The stated purpose of the
OCP is to provide direction to government agencies, businesses and private landowners
concerning future land use and the provision of services. The principal aim of the OCP
is to maintain Savary Island’s unique character and rustic island lifestyle while protecting
the island’s groundwater resources, its sensitive ecosystems and its unique biophysical
characteristics.
35. Section 2 of the OCP is concerned with environmental, marine and heritage resources.
Section 2.2, which deals exclusively with marine resources, states that the marine
foreshore is fragile and highly vulnerable to the effects of inappropriate upland
development and foreshore intrusions. It notes that nearshore habitat may be physically
impacted or disrupted by increased boat use and moorage.
36. Section 2.2. lists the following four objectives:

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2.21 To recognize the importance of the marine and foreshore environment to the
quality of life on Savary Island and protect these features from detrimental
use and the negative impacts of development.
2.2.2 To protect the natural and scenic values of the coastline which provide the
Island with its rural marine character.
2.2.3 To minimize the impact of foreshore uses on upland property owners and
vice versa.
2.2.4 To limit human interference with the drift sector movement of sediment along
the foreshore.
37. Section 2.2. also lists four policies. Theseinclude, amongst other things:
2.2.c
2.2.d
The Savary wharf and, if appropriate, the [Barge Landing Site], will be zoned
marine transportation. No buildings or structures except for those facilities
required to facilitate marine transportation shall be permitted.
The Regional District, should evaluate the range of options available to
accommodate increased boat presence and use in the foreshore water off
Savary.
38. Section 6 of the OCP is concerned with transportation planning. Section 6.1, which
deals with transportation generally, lists several objectives. These include, amongst
other things:
6.1.2 To support appropriate modes of water, land and air transport to and on
Savary Island which ensures public safety, minimizes the environmental
impact and do not detract from the peaceful enjoyment of the Island while
taking into account the dramatic increase in people arriving and staying on
the Island during the summer months
6 1 5 To ensure good channels of communication exist to keep appropriate
government bodies including Ministry of Transportation and [the Regional
District] officials well informed regarding the transportation priorities and
concerns of Island residents and property owners.
6.1.6 To accommodate goods and equipment shipped to the Island by barge and to
attempt to limit the number and types of vehicles permitted to gain access to
the Island. However, the Ministry of Transportation cannot limit licensed
vehicles on the roads.
39. Section 6.3, which deals with marine transportation, lists seven policies. These policies
include, amongst other things:

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6.3.c
6.3.d
6.3.e
In order to limit the impact of barge landings on residences in the vicinity of
[the Barge Landing Site] and to restrict excessive vehicle traffic on the Island,
the [Regional District] is encouraged to use its authority to regulate the
months, days and hours of operation and impose a landing fee on all barge
landings.
The [Regional District] should work in conjunction with the Savary Island
Committee and the local barge operator(s) to reduce or discourage the
number of vehicles transported to Savary Island.
A study to identify alternative barge landing sites may be considered.
The Characterof the Neighbourhood & The Sensitivity of the Plaintiffs’ Use
40. The Properties are located along Malaspina Promenade and Sherman Walk, within
close proximity to the Barge Landing Site. The neighbourhood in which the Properties
are located is an established recreational home area with a unique character and a
rustic island lifestyle.
41. The Plaintiffs purchased the Properties because, among other things, the Properties
offered a safe, quiet, peaceful and aesthetically pleasing location to live.
The Nature. Severity and Duration of the Interference
42. The Province is not requiring the Barge Service to be operated in accordance with the
License or the Management Plan.
43. The Regional District is not requiring the Barge Service to be operated in accordance
with the License, the Management Plan or the Sublicense. In breach of the
Management Plan, the Regional District has failed to take all of the specified steps
contained in the Management Plan to alleviate the impact of the Barge Service on
upland property owners, including the Plaintiffs.
44. Vehicle traffic before, during and after the operation of the Barge Service has caused,
and continues to cause, increased noise, pollution and dust around the Barge Landing
Site and along Malaspina Promenade and Sherman Walk. This vehicle traffic, combined
with permanent storage of cars, boats and other materials at the Barge Landing Site,
has a serious negative impact on each of the Properties and each of the Plaintiffs,

11
including but not limited to, blocking some of the Plaintiffs’ views from the Properties and
reducing the value of the Properties.
45. In addition, increased vehicular traffic in and around the Barge Landing Site poses a risk
to the safety of the Plaintiffs and their families who live and play in close proximity to the
Barge Landing Site.
46. The actions of the Defendants, as described in this Notice of Civil Claim, and the
resulting damage caused to the Plaintiffs and the Property, have created a private
nuisance actionable by the Plaintiffs.
47. The Barge Service has both social utility and social costs. The Barge Service has social
utility for all of the residents of Savary Island. However, the Plaintiffs and the other
residents who live in the vicinity of the Barge Landing Site bear the entire social cost of
the Barge Service.
48. As a result of the private nuisance, the Plaintiffs have suffered loss, damage and
expense, including a loss in the value of the Properties.
Part 2: RELIEF SOUGHT
The Plaintiffs seek the following relief:
1. interim and permanent injunctive relief against the Regional District prohibiting the
conduct creating the private nuisance, including but not limited to, prohibiting the
conduct referred to in paragraph 22 (a) through (e) of Part I of this Notice of Civil Claim,
or in the alternative, a mandatory injunction requiring the Regional District to take all
necessary steps to ensure the Barge Service is operated in accordance with the
License, the Management Plan and the Sublicense;
2. a declaration that the operation of the Barge Service to the Barge Landing Site is
inconsistent with the OCP, contrary to subsection 884(2) of the Local Government Act,
R.S.BC. 1996, c. 323;
3. general damages;
4. special damages;

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5. costs;
6. interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79;
7. such further and other relief as to this Honourable Court may seem just.
Part 3: LEGAL BASIS
Private Nuisance
1. The interference caused by the operation of the Barge Service, as set out herein, is
unreasonable and is intolerable to an ordinary person. The operation of the Barge
Service is an unreasonable interference with the Plaintiffs’ use and enjoyment of the
Properties, and thus constitutes an unlawful private nuisance.
Inconsistency with the OCP
2. The operation of the Barge Service to the Barge Landing Site is a work undertaken by
the council, board or greater board of the Regional District after the adoption of the OCP.
3. The operation of the Barge Service to the Barge Landing Site by the Regional District is
inconsistent with the OCP because it:
(a)
(b)
(c)
(d)
(e)
fails to recognize the importance of the marine and foreshore environment to the
quality of life on Savary Island and fails to protect these features from detrimental
use and the negative impacts of development;
fails to protect the natural and scenic values of the coastline which provide
Savary Island with its rural marine character;
fails to minimize the impact of foreshore uses on upland property owners and
vice versa;
fails to limit human interference with the drift sector movement of sediment along
the foreshore;
allows structures which are not required to facilitate marine transportation to be
located at the Barge Landing Site;

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(f)
(g)
(h)
(i)
fails to support appropriate modes of water transport to Savary Island which
ensures public safety, minimizes the environmental impact and does not detract
from the peaceful enjoyment of Savary Island;
fails to ensure that good channels of communication exist to keep appropriate
government bodies well informed regarding the transportation priorities and
concerns of Savary Island residents and property owners;
fails to attempt to limit the number and types of vehicles permitted to gain access
to Savary Island;
fails to regulate the months, days and hours of operation of the Barge Service;
fails to impose a landing fee on all barge landings;
(k)
(I)
fails to work in conjunction with the Savary Island Committee and the local barge
operators to reduce or discourage the number of vehicles transported to Savary
Island; and
fails to undertake a study to identify alternative barge landing sites.
4. There is an absolute and direct collision between the OCP and the operation of the Barge
Service to the Barge Landing Site by the Regional District. As a result, the current operation
of the Barge Service is unlawful.
Plaintiffs’ address for service:
Fax number address for service (if any):
E-mail address for service (if any):
Place of trial:
The address of the registry is:
3000 - 1055 West Georgia Street
Vancouver, British Columbia
V6E 3R3
None
None
Vancouver
The Law Courts
800 Smithe Street
Vancouver, British Columbia
V6Z 2E1

_______________________
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Bull, Housser & Tupper LLP
Date:
25/Jun12012
Sint of
D jØ1tiffs
Lawyers for the Plaintiffs
James H. Goulden
Rule 7-1 (1) of the Supreme Court Civil Rules states:
1, Unless all parties of record consent or the court otherwise orders, each party of record to
an action must, within 35 days after the end of the pleading period,
(a)
prepare a list of documents in Form 22 that lists
(I)
(ii)
all documents that are or have been in the party’s possession or control
and that could, if available, be used by any party at trial to prove or
disprove a material fact, and
all other documents to which the party intends to refer at trial, and
(b)
serve the list on all parties of record.
APPENDIX
Part 1: CONCISE SUMMARY OF NATURE OF CLAIM:
The Plaintiffs claim injunctive relief and damages for a private nuisance created by the operation
of a barge service to a barge landing site on Savary Island. The Plaintiffs seek a declaration
that the same barge service is inconsistent with Savary Island’s official community plan,
contrary to subsection 884(2) of the Local Government Act, R.S.B.C. 1996, c. 323.
Part 2: THIS CLAIM ARISES FROM THE FOLLOWING:
A personal injury arising out of:
a motor vehicle accident
LI
medical malpractice

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LI
another cause
A dispute concerning:
LI
LI
contaminated sites
construction defects
real property (real estate)
LI
LI
LI
LI
LI
LI
personal property
the provision of goods or services or other general commercial matters
investment losses
the lending of money
an employment relationship
a will or other issues concerning the probate of an estate
a matter not listed here
Part 3: THIS CLAIM INVOLVES:
LI
LI
LI
LI
LI
a class action
maritime law
aboriginal law
constitutional law
conflict of laws
none of the above
LI
do not know

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Part 4:
1. The Plaintiffs plead and rely on subsection 884(2) of the Local Government Act,
RS.BC. 1996, c. 323.

_________
No.
Vancouver Registry
In the Supreme Court of British Columbia
Between:
ANN WEST, JOHN LAWRENCE, JOHN MCINTOSH,
CANDACE MCINTOSH, STEPHANIE MARY YORATH
and JAVA SEA INVESTMENTS INC.
and
Plaintiffs
HER MAJESTY THE QUEEN IN RIGHT OF THE
PROVINCE OF BRITISH COLUMBIA,
REPRESENTED BY THE MINISTER OF
AGRICULTURE AND LANDS and POWELL RIVER
REGIONAL DISTRICT
Defendants
NOTICE OF CIVIL CLAIM
BULL, HOUSSER & TUPPER LLP
Barristers & Solicitors
3000 - 1055 West Georgia Street
Vancouver BC V6E 3R3
Telephone: (604) 687-6575
Attention: James H. Goulden
JHG/jvl Matter #11-4455
EL1J3565093