For those interested in the law of riparian rights and foreshore
use, the case of Arbutus Bay Estates Ltd. v. Canada (Attorney
General) is one to watch as it unfolds this year. This
case is about the intersection of private property rights and the
right of the general public to access a public wharf.
The dispute relates to a wharf on Mayne Island known as the
Horton Bay Wharf and a public road leading to the Wharf –
known as the Wharf Access Road. The Road is situated on Lot
A, which is owned by Arbutus Bay Estates Ltd.
("Arbutus Bay"). The Wharf is
situated on the water lot adjacent to Lot A. There is an
easement (dating back to 1959) and a right of way (dating back to
1960) which grant to the Province certain rights to construct and
operate access to the Wharf through Lot A.
In 2013, Arbutus Bay initiated legal proceedings against Capital
Regional District, the Attorney General of Canada and the Province
of British Columbia alleging (among other things) the
"8 The plaintiff alleges that
Canada has "expanded and extended" the wharf since 1960
to increase the size of the facilities by over 250% in area, and
has built "structures and gangways which it located on and
anchored to Lot A without the consent of the plaintiff". To
the extent the structures and gangways are located on Lot A, the
plaintiffs allege the structures and gangways constitute a trespass
on Lot A.
9 The plaintiff alleges that the
right-of-way does not authorize use of the right-of-way by
"the public at large, or by other invitees or
10 The plaintiff's claims are for
"declarations and damages arising out of alleged nuisance,
trespass, and interference with riparian rights occasioned by the
use and operation of Horton Bay Harbour", an injunction
restraining the defendants from trespassing on Lot A, a declaration
that the right of way is invalid or unenforceable, and other
The matter was initially set for trial in April, 2014, but was
adjourned to October, 2015. At that time, Arbutus Bay sought
to re-open its case in order to adduce further evidence. In a
recent decision, the Court allowed Arbutus Bay to reopen its
case for the purpose of adducing limited expert evidence. The
trial is now set for September, 2016.
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