A North Okanagan couple have been denied the right to maintain access to their dock on Kalamalka Lake, which has been separated from their property by the Okanagan Rail Trail.
Myles and Catherine McGovern sought a determination against the Regional District of North Okanagan (RDNO) to preserve their right to use the dock on the west shore of the lake, adjacent to what is now the Rail Trail property owned by the RDNO.
But in a BC Supreme Court Decision issued Wednesday, Nov. 22, Justice Allan Betton sided with the regional district.
The McGoverns bought their Highridge Road property in 2005, before the dock was constructed. The previous owner was the developer of the property, Kestrel Global Properties, which had obtained a licence for the private crossing of the railway corridor property prior to the McGoverns’ purchase. The 10-year licence gave the owner of the property access to the foreshore of Kalamalka Lake (owned by the province). The agreement expired in October 2014.
Also in 2004, Kestrel applied for a foreshore licence to build the dock, which was granted by the RDNO. That licence lasted 10 years and was renewed for another two years in 2014.
The RDNO then acquired the rail corridor property in 2015 and converted it for public use as part of the Okanagan Rail Trail. The next year, the RDNO resolved that it would work with property owners to minimize the impact of the Rail Trail on them, but said its main objective was to develop and operate the trail and “only actions that contribute to this objective will be undertaken at this time.”
The RDNO refused to support crossings for the sole purpose of access to docks and waterfront licences.
A few months later, the RDNO passed a policy to not support applications to the province for private dock licences along the corridor.
The McGoverns said the RDNO had previously supported their foreshore licence, but reversed course upon acquiring the railway corridor.
“Although the RDNO is not actively asking us to take enforcement action, for removal of the dock, they will not be providing consent for the dock to remain in place. As the dock cannot be authorized without their consent, it will still need to be removed,” the Ministry of Forest, Lands and Natural Resource Operations said in December 2017.
The McGoverns retained legal counsel and argued they were entitled to support from the RDNO for their dock licence, based on proprietary estoppel, since the regional district had changed its position on the matter after taking ownership of the railway corridor.
The province then took enforcement action with respect to the dock, handing the plaintiffs a trespass notice in April 2021. The notice required the dock to be removed by July 31 of that year. That date was then extended to June 30, 2023.
The McGoverns filed a notice of civil claim May 19, 2021, based on estoppel.
“The McGoverns received assurances from the RDNO, acted on those assurances reasonably and now stand to suffer loss because the RDNO seeks to go back on its word. In all of the circumstances it is unjust for the RDNO to block the McGoverns’ renewal of the foreshore license for the Dock,” reads their argument.
However, the McGoverns’ claims were found to be statute-barred, as they took place more than two years after being discovered.
“There is simply nothing indicating any expectation of a right or benefit over the Rail Trail corridor if and when the RDNO became the owner of it,” Betton wrote.
“The plaintiffs’ evidence of a representation or assurance by the RDNO is inadequate. Further, the evidence that the alleged assurance gave rise to an expectation of a right or benefit over property is inadequate. On the evidence in relation to the substantive claim of proprietary estoppel, I conclude the plaintiffs have failed to establish a representation or assurance was made to them that was the basis for an expectation they would enjoy some right or benefit over property.”
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