The Ladysmith Maritime Society is no longer the steward of the community marina after its application for a court injunction to halt its eviction was denied.
On Dec. 27, the Supreme Court of B.C. denied the application from the society, which was trying to avoid having to vacate the water lot by Dec. 31 as it pursues other legal avenues.
Throughout 2023, the marina was a pressing topic in town as the society held town hall meetings, a protest, and community talks with the goal of continuing operations at the marina, which was owned by the province, leased to the Town of Ladysmith, and was scheduled to be sub-leased to the society until 2029 before Stz’uminus First Nation and the province signed a reconciliation agreement to transfer the title of the water lot.
According to the injunction decision, in the fall of 2022, the society and the First Nation’s economic development corporation discussed the role LMS would play after the transfer; however, after an exchange of draft agreements, negotiations ended.
Soon after, the town discussed with the province the transfer of the lease, and the province indicated that non-compliant structures, like the café, required fresh application and approval. The town decided not to pursue that option and instead gave the society notice of eviction.
In the spring of 2023, the province wrote to the town that the sub-lease granted to the water lot’s holding corporation was void, so the status of the licence held by the society was “questionable,” according to the court’s decision. The province later decided to write a new lease for Stz’uminus instead of transferring the current lease, and in July, the town chose to abandon its lease effective Dec. 31.
The society alleged in the injunction application that the defendants – the town, the holding corporation, and the province – were liable for breach of contract, conspiracy and breach of duty of procedural fairness for passing the abandonment resolution without notice. Those claims have not been proven in court.
“LMS says that the [town, Stz’uminus, and the province] agreed with one another to terminate LMS’ tenure at the water lot prematurely, without lawful justification, in order to facilitate the transfer of tenure to [Stz’uminus]. LMS also says that the defendants carried out overt acts directed at LMS, and which could reasonably be foreseen to result in injury to LMS,” noted the decision.
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The defendants argued that the society failed to demonstrate that it would suffer irreparable harm without an injunction, that LMS “overstated the consequences of the loss,” and that there are other parts of its mandate that it could continue to pursue elsewhere in the harbour. The town offered to provide moorage for the museum and the Ladysmith Dragon Boat Society, and suggested loss of moorage fees and other benefits could be compensated if LMS were to succeed in other legal action.
In an affidavit, Stz’uminus Chief John Elliot wrote that any delay of plans regarding Ladysmith Harbour would be an enormous setback to reconciliation efforts.
“The reconciliation agreement was supposed to result in immediate benefits to the SFN community. That includes financial benefits but separate from any dollar amounts, there is tremendous importance within the SFN community for us to regain control of additional parts of our territory,” he noted. “Our members have been waiting for decades for the return of the land and water areas in Oyster Bay. The reconciliation agreement was supposed to ensure real action without further delay.”
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Judge Warren Milman, in his decision, acknowledged that not granting the injunction would cause irreparable harm to the society.
“I agree with LMS that the loss with which it is threatened is not one that could readily be compensated in damages,” he noted. “Although the term of the licence was due to expire in 2029 in any event, the value that LMS will lose over the next six years in the absence of an injunction goes beyond the moorage fees and any other revenue streams that would be lost during that period. LMS will effectively be gutted and its centrepiece asset will be lost.”
However, the judge added that although the society “demonstrated a serious question to be tried on each of its claims,” none of the claims were “particularly strong.”
He also mentioned that while the province and the town were “less than entirely transparent with LMS,” the society had received notice in the fall of 2022 of the town’s intention to abandon its lease and thereby void the sub-lease.
The judge added that further delay of the scheduled transition would “undermine the integrity of the reconciliation process” and complicate plans to revitalize the waterfront by postponing “urgent work” there. Citing the “balance of convenience,” he refused the application for the injunction, and ruled that the parties will bear their own court costs.
After the court decision, the society began cleaning out the marina, and is working on securing moorage for floating assets such as the café and museum. The corporation has provided moorage rates for boaters staying in the marina.
“Despite the challenges, we believe that the Ladysmith Maritime Society will continue to flourish with the collective efforts and enthusiasm of our members,” noted an e-mail to LMS members from the society’s president, Marnie Craig.
The marina is now called Oyster Bay Marina.
bailey.seymour@nanaimobulletin.com
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