Steveston Harbour Authority v. Ridge Fishing Ltd.

2025 BCSC 2154 Steveston Harbour Authority v. Ridge Fishing Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Steveston Harbour Authority v. Ridge Fishing Ltd., 2025 BCSC 2154 Date: 20251031 Docket: S220314 Registry: Victoria Admiralty Action In Rem against the Ship "San Juan", the Ship "Venturous", the Ship "Bernice C", the Ship "Catalina Adventure", the Ship "Orca Spirit II", the Ship "Orca Spirit", the Ship "SHA 146", the Ship "Ex-Coast Guard", the Ship "Ex-Coast Guard 2", the Ship "King Salmon", the Ship "Coastal Express" and In Personam Between: Steveston Harbour Authority Plaintiff And Ridge Fishing Ltd., Orca Spirit Adventures Ltd., Cuda Marine Adventures Inc., Walter Cadwallader, the Ship "San Juan", the Ship "Venturous", the Ship "Bernice C", the Ship "Catalina Adventure", the Ship "Orca Spirit II", the Ship "Orca Spirit", the Ship "Sha 146", the Ship "Ex-Coast Guard", the Ship "Ex-Coast Guard 2", the Ship "King Salmon", the Ship "Coastal Express", Their Owners, and All Others Interested in the Ship "San Juan", the Ship "Venturous", the Ship "Bernice C", the Ship "Catalina Adventure", the Ship "Orca Spirit II", the Ship "Orca Spirit", the Ship "Sha 146", the Ship "Ex-Coast Guard", the Ship "Ex-Coast Guard 2", the Ship "King Salmon" and the Ship "Coastal Express" Defendants And Steveston Harbour Authority Defendant by Counterclaim Before: The Honourable Mr. Veenstra Reasons for Judgment Counsel for the Plaintiff: D. Williams V.

Syrma G. Lockhart, Articled Student Counsel for the Defendants, Ridge Fishing Ltd., Orca Spirit Adventures Ltd., Cuda Marine Adventures Inc. and Walter Cadwallader: B.D. Hughes Place and Dates of Hearing: Victoria, B.C. March 5-6, 2025 Place and Date of Judgment: Victoria, B.C. October 31, 2025 Table of Contents Introduction.. 4 The SHA.. 5 The Defendants. 7 The Licenses of Occupation and Moorage and Vessel Storage Agreements. 9 Events Leading to Termination Notice. 12 Events After Termination Notice. 16 Events After Commencement of Litigation.. 20 Progress of the Litigation.. 23 Positions of the Parties. 26 The Plaintiff 26 The Defendants. 26 Appropriateness for Summary Trial 26 Ongoing Contract 28 Proprietary Estoppel 29 Duties Owed to Indigenous Business. 29 Good Faith and Contractual Discretion. 32 The SHA's Reply. 34 Legal Context. 37 Appropriateness for Summary Trial 37 Contract Principles. 39 Proprietary Estoppel 42 Administrative and Aboriginal Law Principles. 43 Good Faith in Contractual Discretion and Renewals. 50 Analysis. 60 Appropriateness for Summary Trial 60 Ongoing Invoices. 61 Promissory Estoppel 62 Judicial Review.. 63 Duty of Good Faith. 66 Remedy. 69 Introduction [1] This is a summary trial application by which the plaintiff, Steveston Harbour Authority ("SHA"), seeks a final order for a permanent injunction that would restrain the four first-named

defendants from storing vessels, fishing gear and other belongings within the Steveston Harbour. The SHA leases the Steveston Harbour from the federal government, through the Department of Fisheries and Oceans ("DFO"). The SHA alleges that the defendants are trespassing and a nuisance. [2] Although the notice of civil claim initially sought in rem relief against those vessels listed in the style of cause, that relief is not now being pursued and the plaintiff seeks relief only against the three corporate defendants plus Mr. Cadwallader. [3] The defendants say that the case is not appropriate for summary trial, and with respect to the merits argue that: a) There is an ongoing agreement that they can remain on the SHA property, or alternatively, the SHA is estopped from seeking their removal; b) The SHA is an agent of the Crown and failed to provide procedural fairness in its decision-making, and the defendants have the option to seek judicial review in the Federal Court; and c) As Indigenous-owned businesses, the duty of good faith owed to them by the SHA as an agent of the Crown is infused with duties to consider more than just commercial interests in exercising a contractual discretion to either terminate or fail to renew their licenses. [4] The defendants have also filed a counterclaim alleging that they, or a company that was formerly under common ownership, improved the property. They seek compensation based on breach of contract and unjust enrichment. The SHA [5] The SHA was incorporated in 1990 under the Canada Not-for-profit Corporations Act, S.C. 2009, c.

23. It leases the Steveston Small Craft Harbour, which is an area comprised of both waterlot and upland property, pursuant to the Fishing and Recreational Harbours Act, R.S.C. 1985, c. F-24 [FRHA]. The authority for such a lease is provided by ss. 4 and 8(a) of the FRHA, which state: 4 The use, management and maintenance of every scheduled harbour, the enforcement of regulations relating thereto and the collection of charges for the use of every scheduled harbour are under the control and administration of the Minister. 8 The Minister may, subject to the regulations, (a) lease any scheduled harbour or any part thereof to any person; [6] As noted by Justice Young in Steveston Harbour Authority v. Medanic Fisheries Ltd., 2019 BCSC 304 [Medanic]: [14] Small Craft Harbours is a nation wide program run by DFO using volunteer organizations to keep harbours that are critical to the fishing industry open and in good repair. The objective of the program is to sustain a national network of safe, accessible harbours that are fully operational, in good working condition and managed and maintained by self-sufficient harbour authorities. [15] The Steveston Small Craft Harbour is considered a Core Harbour owned by DFO, but managed by the Steveston Harbour Authority. [7] The SHA has been operating the Steveston Harbour since 1990. The current head lease was made on October 1, 2008 (the "Head

Lease"), and was for a five-year term. It has been renewed from time to time, with the current renewal in place until May 31, 2028. In s. 6, it states that: The [SHA] shall use the Leased Area and the Leased Equipment for the purpose of operating, maintaining and managing a public commercial fishing harbour at Steveston Gulf site and Steveston Paramount site. [8] The Head Lease provides in s. 7(1) that the SHA will, at all times, ensure access by the public to the harbour without any discrimination against any person in any manner. The balance of s. 7 provides that: (2) Notwithstanding s. 7(1) in this Lease, the [SHA] may refuse the access or the use of the Harbour to any person or vessel where such access or use would be contrary to the interest of the public frequenting the Harbour and, without limiting the generality of the foregoing, would render the use of the Harbour unsafe to persons or property thereon or would impede, interfere with or render difficult or dangerous the use of the Harbour, or obstruct the maintenance of order thereon. (3) Further, the [SHA] may refuse access to any person or vessel with outstanding charges payable to the [SHA]. [9] Further provisions of the Head Lease referenced by the parties in submissions are: 13. The Lessor, Her officials, employees, agents, and contractors may have reasonable access to the Leased Area or any part of it at any time for any purpose.

14. The [SHA] shall not assign any of its rights and obligations under this Lease or sublet the whole or any part of the Leased Area without the prior written consent of the Lessor, which consent may be unreasonably withheld.

17. The [SHA] must comply with all applicable federal and provincial laws, regulations and rules and all municipal bylaws. [10] The SHA is governed by a board of directors comprised of volunteer members of the fishing industry and the local community (the "Board"), including a member of Richmond City Council and a Council member of the Musqueam Indian Band. [11] The SHA's general manager has deposed that there is "strong demand for moorage and upland storage by commercial fishing vessels, particularly large fishing vessels, in the Steveston Harbour", and that berthage and upland storage are "prioritized for active, paying commercial fishing vessels". [12] The SHA has adopted Operations Directive #21 - Berthage, which provides guidelines on the criteria for berthing vessels at the SHA. It provides that priority will always be given to commercial fishing vessels ("CFV"), which are defined as currently licensed vessels displaying current DFO fishing license plates and species tabs. The directive says that vessels which are not CFVs will be accommodated when and where possible, with the understanding that they will have 24 hours to vacate a berth should a CFV require the spot for any reason. [13] The SHA has also adopted Operations Directive #6 - Operational Guidelines, which provides that: Harbour users who violate SHA directives or accrue an unreasonable amount of debt to the SHA

may be subject to cancellation of berthage and storage privileges and / or the detention or removal of their vessel(s) or gear. [14] The SHA's general manager, Ms. Jaime Gusto, deposed that: 13. The SHA has limited staff and funding. When staff are occupied with following up on outstanding accounts or pursuing boat owners to account for the scheduling of their moorage, they are diverted from their other responsibilities in the Steveston Harbour.

14. The SHA's operations are impacted by customers who do not advise the SHA which vessel they own and when they wish to start and stop mooring a vessel. This lack of communications results in dock spaces that could be used by other customers remaining vacant, or dock space that is intended for scheduled customers being taken up by unscheduled customers. In my experience, this causes confusion and disorder between the Steveston Harbour users and the SHA.

15. In the last five years the SHA has removed at least twelve customers, their vessels and/or gear from the SHA Property, for failing to comply with the SHA's rules. This includes customers who do not pay their accounts, fail to maintain safe vessels, or interfere with the safety and operations of the Steveston Harbour.

16. The SHA relies on the assistance of civil courts to remove a non-complying customer from the SHA Property, as no employee of the SHA has been appointed an Enforcement Officer under the Fishing and Recreational Harbours Act, R.S.C. 1985, c. F-24. [15] The nature and jurisdiction of the SHA was reviewed in the Medanic case, in which a permanent injunction was granted requiring relocation of certain vessels from the SHA. The Defendants [16] The three corporate defendants are all incorporated in British Columbia. Ridge Fishing Ltd. ("Ridge") operates a commercial fishing business. The other two companies are involved in the whale-watching industry, with Cuda Marine Adventures Inc. ("Cuda") owning tour vessels and Orca Spirit Adventures Inc. ("Orca") operating them. [17] Mr. Cadwallader is the general manager of all three companies. All three of them are under the majority ownership of Mr. Cadwallader's wife, Mabel Wilson, who is the sole director and shareholder of each company (other than Orca, for which there are two minority shareholders who each own a 20% interest). However, Ms. Wilson is not directly involved in operations. She deposed that she is an Indigenous person, a member of the Kwakiutl Fort Rupert Band and a registrant under the Indian Act. She is 74 years old and a member of a multigenerational fishing family. [18] The traditional territory of the Kwakiutl Fort

Rupert Band is at the northern end of Vancouver Island, in and around Port Hardy. [19] Mr. Cadwallader is 79 years old and has operated fishing and other businesses out of Steveston Harbour for over 40 years. He says that as the fishing industry shrunk, they expanded into eco-tourism and passenger vessels. He says that all three companies operate their business from and moor their vessels at Steveston Harbour, and that the businesses were developed around having access to the facilities at the Steveston Harbour. [20] Mr. Cadwallader and Ms. Wilson had two other companies that previously had operations at Steveston Harbour. Their previous operating company, Trites Marine Services Ltd. ("Trites Marine"), had subleases of Building 24 from 1999 to 2014. Mr. Cadwallader says that Trites Marine made significant improvements to Building 24B in about 2002 and 2003. Trites Marine also had licenses to make use of what are now known as floats "X" and "W" for the moorage of their commercial vessels beginning in about 2002. [21] Records from the BC company registry indicate that Trites Marine was dissolved in January 2012 as a result of a failure to file annual reports. Beginning in late 2014, as its existing agreements came to an end, new licenses of occupancy were issued in the name of Ridge. [22] Mr. Cadwallader says that Ridge and the other corporate defendants have, in more recent

years, used Building 24B as an office and workshop for their business operations. Mr. Cadwallader says that Ridge has also made other improvements to buildings and floats at Steveston Harbour, which he described as: a) Professionally installed mezzanine 2nd floors and commercial racking in various lockers; b) Complete office space including individual offices, boardroom, kitchen and washroom facilities; and c) Installed a complete machine shop below the office space including office space. Mr. Cadwallader's affidavit does not indicate when these improvements were made, or what costs were involved. [23] Mr. Cadwallader says that the three current companies employ approximately 65 individuals, approximately 82% of whom identify as Indigenous. [24] Ridge owns two vessels: the Bernice C, which is registered as a CFV, and the Venturous. The evidence indicates that the Venturous is not currently registered with DFO as a CFV. [25] The Bernice C is authorized under seining licenses issued by DFO under s. 4 of the Aboriginal Communal Fishing Licences Regulations, SOR/93-332, which are held by the Kwakiutl Indian Band, located in Port Hardy, and the Cowichan Indian Band, located in Duncan, and include seine fishing for food, social and ceremonial purposes. The fishing areas identified in the Cowichan licenses include areas that are relatively close to Steveston. The Licenses of

Occupation and Moorage and Vessel Storage Agreements [26] The SHA allocates various harbour facilities to users through the use of licenses of occupancy and moorage agreements, which largely use standard form language. [27] With respect to Building 24B, Ridge's licenses of occupancy were: a) For a five-year term from December 2014 to November 2019; and b) For a two-year term from December 2019 to November 30, 2021. [28] With respect to moorage space on the "X" and a portion of the "W" floats, Ridge's licenses of occupancy were: a) For an 18-month term from April 2017 to September 2018; b) For a two-year term from October 2018 to September 2020; and c) For a two-year term from October 2020 to September 30, 2022. [29] Ridge also had a license of occupancy for Building 39, locker 3903AA, which was issued in October 2020 for a one-year term expiring September 30, 2021. [30] The most recent license of occupancy issued to Ridge for the use of Building 24B provided for monthly payments of $3,170. It stated that the purpose of the license was: To occupy the premises for the purpose of supporting the Licensees fishing operation and for no other purpose whatsoever. [31] The General Conditions of the license for Building 24B included at s. 1 a requirement that all lawful rules, regulations and by-laws of municipalities and other governing bodies be complied with. With respect to

cancellation, General Condition 7 provided: That this License may be cancelled at any time by either party: (a) by the Licensee giving thirty days (30) notice in writing and delivered to or mailed addressed to: [the SHA office] (b) by the [SHA] giving thirty days (30) notice in writing and delivered to or mailed addressed to the Licensee, or mailed addressed to the last known place of business or office of the Licensee [32] With respect to renewal, General Condition 18 provided: If at the expiration of the term of this License, the Licensee shall desire a renewal for a further term, the Licensee shall at least two months before such expiration give notice in writing of such desire to the [SHA]. Renewals may be granted by the [SHA] if the Licensee has met all the terms and conditions contained in this License to the full satisfaction of the [SHA]. [33] Finally, I note that non-waiver and entire agreement clauses are found in General Conditions 20 and 22: 20. No waiver, alteration or amendment to this agreement shall be binding unless it is in writing and signed by both parties.

22. It is agreed that the whole contract and agreement between the parties is set forth herein, that no representations, warranties or conditions have been made other than those expressed or implied herein and that no agreement collateral hereto shall be binding on the [SHA] unless it is made in writing and signed by the [SHA]. [34] The other licenses of occupancy issued to Ridge that were in effect in early 2021 included the same standard terms as noted above. These licenses were: a) A floats license for the north and south sides of 'X' float and 21.10 metres of 'W' float, for purpose of "berthing licensed harvesting commercial fishing/packing vessels and tour vessels and for no other purpose whatsoever", for which the annual payment was $17,600 plus sediment management and environmental fees; and b) A license of Building 39, Locker 3903AA, for purpose of "net and fishing gear storage, and for no other purpose whatsoever", for which the annual payment was $9,000 plus sediment management and environmental fees. [35] In addition to the licenses, the summary trial record included a number of "Moorage and Vessel Storage Agreements". Each identified a specific vessel. With respect to the Bernice C, the agreement was dated March 29, 2021. Relevant provisions include: 2. Payment of Fees: In consideration of the payment of moorage fees, at such rates as the [SHA] may from time to time

specify, the [SHA] grants solely to the Licensee, the non-assignable permission to moor / store the Vessel as directed by the [SHA] on property controlled by the [SHA] and subject to the terms and conditions of this Agreement. a. If the moorage / storage fees are prepaid, the license granted hereby is for the term of the prepaid fees specified for each particular premises. Before the expiry of the license for any particular premises, the Licensee may tender moorage fees and the acceptance of such fees by the [SHA] shall renew the license for the particular premises under the then current Moorage and Vessel Storage Agreement as may have been amended by the [SHA]. c. Licensee agrees that the [SHA's] rates may change reasonably from time to time, and any amended rates are binding on the Licensee from the date which the amended rates were established.

4. Termination: The [SHA] may terminate this Agreement: (a) immediately for non-compliance on the part of the Licensee or the Licensee's invitees with any term of this Agreement or the [SHA's] rules, directives, policies or procedures; (b) on 7 days written notice when, in the sole discretion of the [SHA], the Vessel's moorage is contrary to the best interests of other Licensees or the [SHA]; or otherwise (c) on 30 days written notice. The Licensee may terminate this Agreement by providing 30 days written notice to the [SHA].

6. Moving Vessel: The Licensee, if not mooring an active commercial fishing vessel, agrees that the [SHA] may give one day notice to the Licensee to remove / relocate the Vessel if an active commercial fishing vessel requires the berth. [36] Moorage and Vessel Storage Agreements with respect to other vessels belonging to the corporate defendants used the same form. Events Leading to Termination Notice [37] Ms. Gusto says that there have been ongoing problems with timely payment of invoices by various companies associated with Mr. Cadwallader and Ms. Wilson dating back to 2001. Her affidavit attaches some 53 demand letters from the SHA's files. Of those demand letters, four are from 2018, three are from 2019, and seven are from 2020 (four of which were issued in December 2020). [38] With respect to 2020, Mr. Cadwallader deposed that: In early 2020, when the Covid-19 pandemic hit British Columbia, the fishing operations of Ridge, and the passenger ferry and eco-tourism operations of Cuda and Orca were significantly impacted. Additionally, Fisheries and Oceans Canada closures of the certain fishing areas and poor catches in the areas that were open to commercial fishing, caused Ridge's commercial fishing business to falter. During this time, Ridge, Cuda and Orca suffered significant financial hardship but made concerted efforts to continue to pay licenses fees to the SHA in a

timely manner. Ridge, Cuda and Orca have always eventually paid their licence fees in full and late payments were, in part, attributable to time and effort spent reconciling invoices and the impacts of the Covid-19 pandemic. [39] Ms. Gusto gave evidence of an incident that began in 2021: In January 2021, the Defendants parked their vessel "San Juan" at the Steveston Harbour upland property without permission, taking up two spaces in the yard. When the SHA made a demand for the vessel to be moved, Mr. Cadwallader moved the vessel onto (on top of) a Steveston Harbour dock. I am aware that the SHA Operations Directive #6 prohibits storage of anything on piers or floats: Mr. Cadwallader advised that the "San Juan" vessel would only be there for a "couple of days". In July 2021, the SHA had to retain counsel to force Mr. Cadwallader to remove the "San Juan" vessel, which was finally removed in February 2022. [40] Ms. Gusto gave evidence of a telephone conversation she had with Mr. Cadwallader on February 2, 2021: I called Mr. Cadwallader regarding the consistent delinquency in the Defendants' accounts. I told Mr. Cadwallader that the defendants needed to pay their accounts on time, or the SHA would cancel the Defendants' licenses and moorage agreements. He replied "Whatever" and hung up on me. [41] This is one of the few areas of conflict in the evidence, as Mr. Cadwallader in his

affidavit responded to the evidence as follows: I do not recall this conversation or whether I have ever spoken to Ms. Gusto on the telephone at all, but I deny saying "whatever" to Ms. Gusto as I do not use the term "whatever" in conversation and would not have been so discourteous if we had a telephone conversation. [42] On February 8, 2021, Ms. Gusto wrote to Ridge stating: This letter is further to our phone conversation of February 2, 2021. As discussed, Ridge Fishing's account is regularly in arrears far past the point of acceptability. This has been a recurring issue for years and simply cannot continue. The majority of these charges are for buildings/areas under license with SHA. As you are aware, per the license agreements, payments for licensed areas are payable in advance. Please remit payment for the entire balance owing ($11,225.02) no later than February 15, 2021. Additional, moving forward, all invoices must be paid in full within 30 days of issuance. Failure to do so will result in SHA invoking the 30-day cancellation clause on your License of Occupancy (Building 24A, X&W Float, and locker 3903A). [43] The next day, Ridge paid $9,570.28. Mr. Cadwallader said that Ridge did not pay the full amount owing because it had "questions about the charges comprising the balance of $1,654.74". Mr. Cadwallader did not say that Ridge ever asked the SHA about those charges,

and Ms. Gusto (in her reply affidavit) said that she and her staff had searched their records and found no record of any correspondence seeking any clarification about that amount. [44] On February 10, 2021, Ms. Gusto wrote Mr. Cadwallader noting: Your payment of $9,570.28 is acknowledged. However, there are still outstanding invoices dating back as far as November 12, 2020. I have attached all invoices past 30-days overdue to this letter. Please remit payment for the entire balance owing ($1,654.74) no later than February 15, 2021. Failure to do so will result in SHA invoking the 30-day cancellation clause on your Licenses of Occupancy (Building 24A, X&W Float, and locker 3903A). Furthermore, the whale watching vessel San Juan (C04340BC), which was brought into Richmond Camp without notifying anyone at SHA, is parked improperly such that it is taking up multiple spaces. Space in that yard is at a premium and we require that you make arrangements to reconfigure the vessel such that it is aligned with the other vessels in the row (bow facing east, see attached photo). Failure to do so by the end of the day on Friday, February 12, 2021 will result in SHA billing the vessel for 2 slips. In the future, you must notify SHA prior to bringing a new vessel into the harbour so that we may assign it a space. [45] Mr. Cadwallader said that Ridge paid the outstanding $1,654.74 on either

February 15 or 16, 2021, although no documents were placed in evidence with respect to this. [46] As noted above, the SHA distributed its standard Moorage and Vessel Storage Agreements to Steveston Harbour users in March 2021. Agreements were signed and returned on March 29, 2021, by Ridge in respect of the "Bernice C" and the "Venturous". Agreements were signed and returned on May 4, 2021, by Cuda in respect of the "Catalina Adventure", the "Europa Spirit", the "Ex Coast Guard", the "Orca Spirit" and the "Orca Spirit II". [47] Ms. Gusto's evidence is that: Between March and July, 2021, the Defendants' accounts continued to be in arrears and the Defendants continued to fail to respond to the SHA's instructions about where to place its vessels. [48] In July 2021, the SHA retained counsel. On July 20, 2021, a Mr. Anderson of League and Williams Law Corporation wrote to Ridge, to the attention of Mr. Cadwallader, addressing all three companies (Ridge, Orca Spirit and Cuda), with a "Re" line stating: "Cancellation of Licence of Occupancy". The letter said: You are receiving this letter as our client's formal notice of it's contractual right to cancel the licences granted to you in respect of Building 24B, Building 39 (Locker 3903A), North and South sides of "X" Float and the 21.10 meters of "W" Float... [49] The letter also demanded removal of property currently situated in other

areas, not subject to a license of occupancy, and demanded removal of the vessels Bernice C, Venturous, Catalina Adenture, Europa Spirit, Ex-Coast Guard, Orca Spirit, Orca Spirit II, SHA 146, Ex-Coast Guard 2, San Juan, and Orca Mist. [50] The letter referenced the three Licenses of Occupancy then in place, and noted that: It is an express term of each of the contracts for the Licensed Area that payment shall be paid monthly in advance, and in full. As indicated in our client's most recent letter to you dated 10 February 2021 you were put on notice that your account was in arrears dating back to 12 November 2020. A previous letter dated 08 February 2021 notified you that moving forward, all invoices must be paid in full within 30 days of issuance, the failure to comply with which will result in SHA invoking the 30-day cancellation notice on your Licenses of Occupancy. We are informed by our client that payment is often made months after such monies were due and owing by you, despite our client's correspondence in respect of this very issue. [51] The letter also noted that the vessel San Juan remained on a dryland storage area where it was not permitted to be. [52] The letter demanded that all property owned by the companies be removed from SHA premises by 5:00 p.m. local time on September 30, 2021. It also attached account statements for each of the three companies and demanded

that the $13,712.95 reflected on those statements be paid within 14 days of the letter, failing which the SHA would take steps to evict the companies and their properties prior to September 30, 2021. The letter concluded: We trust that this date of 30 September 2021 will give you ample time to secure storage and moorage facilities for the property and Vessels currently on SHA Property, as well as provide you with time needed to settle all outstanding accounts under past invoices. Should you fail to comply with this demand, we will seek legal action to commence litigation in rem and in personam against yourself, the herein mentioned companies and individuals, and the Vessels for trespass, nuisance and damages for breach of contract. Events After Termination Notice [53] Financial management services for the corporate defendants are provided by Cindy MacKay, an independent contractor, who said in her affidavit that she had been working for Mr. Cadwallader, Ms. Wilson and their various companies since 1996. [54] On July 26, 2021, Ms. MacKay sent an email to Ms. Gusto, stating: Walter has received a letter from a Lawyer in Victoria, in a round about way. Being a salmon fisherman he can't make these types of arrangements that quickly and would like to have a conversation with you. There has never been any intention of not paying, this has been a very difficult time with covid for the

companies financially. He is hoping there is a way to meet and resolve these matters in the next few days. Please advise your availability. [55] Ms. Gusto replied the next day, stating: Thank you for your email. The issue of late payments has been an ongoing issue for many years with well over 40 letters being sent in this regard. On February 2, 2021 I warned you that if you did not keep your account current moving forward, your agreements would be cancelled. This conversation was followed by two letters warning you of such. Be advised that the Executive Committee of the Board reviews overdue accounts and based on your history and the numerous warnings you have received, they resolved that your licenses be cancelled so that the space could be reissued to paying customers. Please ensure that you remove all of your vessels and gear by September 30, 2021 or further legal action will be taken to ensure compliance. Any further correspondence should be directed to my lawyer [56] Ms. MacKay responded that same day: We acknowledge receipt of below. We have not engaged a Lawyer. We acknowledge we have been late on our payments in the past. These payments have always been rectified and will be so again. [57] On August 3, 2021, Ms. MacKay wrote to Mr. Anderson, stating: The reconciled invoices on the 3 Statements have been paid in full as of today. We are writing to request an extension

beyond the date of September 30/21. We are not agreeing to anything and need to hire a Lawyer. An extension will hopefully provide time for our legal counsel to review this and to provide an opportunity for us to reach a mutually beneficial decision that will not cause financial hardship to all parties involved. [58] The record does not indicate any response to that email. Mr. Cadwallader's evidence is that: After receiving the July 20, 2021 eviction notice, I made efforts to speak with members of the Board of Directors of the SHA and requested the opportunity to appear before the Board of Directors to address the issue. I was denied the opportunity to present my case before the Board of Directors and was told to deal directly with the Lawyer for the SHA. To date, I have not been provided with the opportunity to present my case to the Board of Directors of the SHA. [59] In the course of litigation, Mr. Cadwallader requested copies of the SHA's Board minutes with respect to this matter and tendered some of them in evidence. Those minutes include the following discussion from a Board meeting on September 8, 2021: 4. Water Cadwallader Robert Kiesman informed the Board that Staff are in the process of removing Walter Cadwallader's companies from site due to a long-standing pattern of delinquency. He noted that the majority of Mr. Cadwallader's businesses are not fishing related,

which is something that the SCH tracks much more closely nowadays when reviewing SHA's tenants and the purpose clause stated on their leases. Jaime Gusto commented that she has already spoken with the majority of the Board regarding this issue. She asserted that she believes it is important to have businesses on site that are not only fishing related by also who pay on time. [portion redacted] Jordan Riley asked if there was a clause in their license agreements which allows for SHA to evict them after they are in arrears for a specified period of time. Jaime Gusto advised that there was a stipulation that leases and licenses are to be paid in advance. She noted that SHA is technically not cancelling 2 of his 3 agreements, rather SHA has advised Mr. Cadwallader that it will not be renewing the agreements expiring on September 30, 2021 and November 30, 2021 respectively. Robert Kiesman reminded the Board that this matter was up to Staff, but felt it was important to apprise the Board of what was happening as Mr. Cadwallader is one of SHA's larger tenants. [60] Ms. Gusto says that by September 30, 2021, there were no active Licenses of Occupancy or Moorage Agreements in place because they had either expired (in respect of Building 39, Locker 3903AA) or been terminated (in respect of the others). However, the defendants did not remove any of their property from the Steveston

Harbour and continued to operate their business as usual. She said that the SHA stopped billing the defendants in advance, but that given that the defendants continued to occupy the premises, the SHA began billing in arrears and on a monthly basis only. [61] On October 15, 2021, the SHA issued an invoice to Ridge for "1 Month License October 2021" for "X&W Float" and for "Bldg 39", and on October 25, 2021, the SHA invoiced Ridge for "1 Month License September 2021" and "1 Month License October 2021", each with reference to "Bldg 24B". Further invoices, each referring to a "1 Month License" were issued on November 9, 2021, for November 2021, December 9, 2021, for December 2021, and January 11, 2022, for January 2022. [62] On November 1, 2021, Ms. MacKay wrote a letter addressed to the SHA "Board of Directors and Management", stating: I am writing this letter on behalf of the employees of all the various companies owned by Mabel (Mac) Wilson and operated by herself and Walter Cadwallader to plead with the [SHA] Board of Directors and Management Staff to ask that you reconsider renewing the license of Ridge Fishing Ltd., Orca Spirit Adventures Inc. and Cuda Marine Adventures Inc. for moorage and storage areas at the Harbour. We understand that the decision not to renew the license is based on Ridge and group being late in making payments in a timely fashion and the administrative

overhead this created. Is there not a way that the [SHA] can come to a mutually beneficial agreement that will eliminate these concerns and allow the businesses to continue to operate in the Harbour? There are 9 individuals in the fishing industry who directly stand to lose our employment This will also significantly impact the over 50 employees of the whale watching companies Notwithstanding the individual people impacted, this will also take revenues away from the many local businesses in the Harbour who gain work from these companies Over the past few years the significant down turn in the fishing industry, together with the Indigenous reconciliation program, residential schools and Covid 19 have caused financial and mental hardship that is beyond understanding for many, however, through this time Walter and Mac have been tireless in their efforts to keep their people employed. Yes, the government has been offering many programs that provide some relief for which we are grateful, however, while the government on the one hand is supporting the tragedy that has unfolded on the other hand we have the [SHA] which has decided during these troubling times not to renew the license of a long time tenant over what sounds like, to us, to be an accounting annoyance. We don't understand this approach and we would like to ask that you please consider our plight. This isn't just about

moving boats and gear to another location this is about people's livelihoods and futures. [63] Minutes of a meeting of the Executive Finance Committee of the SHA on January 28, 2022, referenced a discussion of the situation with the defendants. Ms. Gusto reported that no vessels or gear had been moved, that zero progress had been made, and that a court filing had been prepared. The minutes note that: Robert Kiesman thanked Jaime for the update and instructed Staff to continue ahead with the eviction process. He instructed Jaime Gusto to ask SHA's lawyers to see if there is any message that should be added to future invoices. He explained that SHA must make sure that nothing on the invoices can be construed as an invitation to remain in the harbour. Jaime Gusto advised that SHA is only billing Mr. Cadwallader's businesses for services that have already been rendered. Events After Commencement of Litigation [64] The present action was commenced on February 1, 2022. [65] An invoice was issued to Ridge on February 7, 2022, for "1 Month Licence February 2022" for each of "Bldg 39", "X&Y Float" and "Bldg 24B". This invoice, and all future invoices, include the following note: Payment of this Invoice does not constitute a license of occupancy for storage or moorage of gear & vessels on [SHA] property, as such licenses were revoked and/or expired September 30, 2021. [66] Ms. Gusto's

evidence is that after this action was commenced, the defendants: a) Continued to leave their property at the Steveston Harbour without SHA permission; b) Continued to be late in paying invoices; c) Damaged SHA property - sometimes without advising the SHA; and d) Caused oil pollution on the SHA property. [67] With respect to leaving property at the Steveston Harbour without permission, Ms. Gusto deposed as to one specific incident when on October 11, 2023, the defendants moored the "Catalina Adventure" (a 23-metre tour vessel) "without the SHA's permission or without checking in with the SHA", and that it was there from October 11 to November 13, 2023. [68] In support of these assertions, the SHA tendered SHA "Incident/Occurrence Reports", which are said to have been created in the ordinary course of business. The report with respect to the Catalina Adventure was completed by a Victor Hau, whose position with the SHA is not identified. It indicates that one of Cuda's employees had actually approached Mr. Hau to ask if it was okay to bring in the Catalina Adventure, to which Mr. Hau responded that because it was not a commercial fishing vessel, he could not give permission and that the employee would have to contact the SHA office. This evidence does not, strictly speaking, support Ms. Gusto's evidence that there was not even an inquiry made, although it does support that no

permission was given. [69] Ms. Gusto's allegations that payments continued to be late are supported by an email of October 9, 2024, in which the SHA reminded the defendants that the July and August 2024 invoices needed to be paid "ASAP". [70] With respect to the allegation of damage to SHA property, there was evidence from multiple witnesses about an incident on March 18, 2024. Ms. Gusto said that: the SHA did not grant permission to moor "Catalina Adventure", yet the defendants moored the vessel regardless. On this occasion, the vessel did not check in, and struck equipment on one of the SHA piers, damaging the bull rail, rupturing a water line and damaging and emergency rescue ladder. Part of the damage caused by the "Catalina Adventure", and not reported by the Defendants to the SHA, included an emergency ladder that was sheared off the dock. This ladder is used by people who fall off the pier and need it to climb out of the water. If the ladder is not there, or is unusable, it is my experience a threat to people's safety because it becomes difficult to get out of the water. [71] An affidavit from a Mr. Jones, the SHA's Director of Operations and Maintenance, reports responding to a call about the broken water line. He said that he: went to the top of the ramp at 3rd Avenue Pier and met Kim Anderson one of the employees of Cuda Marine Adventures Inc. I understood from Mr.

Anderson that the "Cataline Adventure" had struck the dock and ruptured the waterline. I was not made aware in anyway about the damage to the emergency ladder. My conversation with Mr. Anderson lasted less than a minute. The following day I learnt from my repair crew that the emergency ladder had been sheared off the dock. [72] Mr. Cadwallader's evidence with respect to this incident was that: Jim Jones of the [SHA] Staff was there and we had a discussion of what had happened and I understood that the matter was closed and we were not given any instructions as to further involvement by ourselves. The SHA Staff did not indicate that there was any issue with mooring the Catalina Adventure on March 18, 2024 at the location in question. Further, the damage to the access ladder was a result shifting of the vessel due when the bull rail holding the vessel's lines came loose. [73] A further incident report dated November 20, 2023, was completed by Glenn Chow, the SHA's Operations and Security Manager, who reviewed CCTV footage to find out who had, without permission, dropped multiple mattresses in a 40-yard dumpster belonging to the SHA, and based on that review, identified the individual as Mr. Cadwallader. There was no explanation given as to why Mr. Chow could not have been asked to provide an affidavit himself with respect to this incident. [74] With respect to the allegation of

oil pollution, Ms. Gusto deposed that: In August 2022, the SHA was notified by the Canadian Coast Guard ("CCG") of an oil spill in the Steveston Harbour, the confirmed source was the "Venturous" vessel. Having worked at the SHA for over 24 years, it is my experience that the CCG reports are generated in the CCG's ordinary course of business (the "CCG Report") and provided to the SHA for notification purposes. [75] The CCG Report was attached to Ms. Gusto's affidavit. It notes a report received on the evening of August 10, 2022, an assessment conducted on August 11, 2022, and that on the afternoon of August 12, 2022 "CCGER Richmond and [SHA] were able to locate and confirm the source this afternoon. Source has been confirmed to be the 75FT F/V VENTUROUS." It notes that the "Owner" was contacted and "was able to have someone visit the vessel this afternoon and plug the line". An update on August 15, 2022, records that a CCGER duty officer had visited the vessel, and that: Owner has removed the product from the bilge and has repaired the loose line, repairs are effective. Owner is going to have the waste picked up and disposed of properly this week. [76] Ms. Gusto also deposed that on October 11, 2024, the SHA was notified by the Canadian Coast Guard that air reconnaissance had detected a spill or leak from the "Pacific Explorer I", a vessel owned by Cuda. With respect to this

allegation, Mr. Cadwallader deposed that: I communicated with the Canadian Coast Guard and provided evidence that the silver sheen in question did not originate from the Pacific Explorer 1. Mr. Cadwallader did not include any of that "evidence" in his materials or even describe how the evidence showed what he says it showed. [77] Ms. Gusto noted that part of her role as manager of the SHA is to report to an Enforcement Officer at the DFO. The person she reports to is a Brenda O'Hara, Manager, Harbour Development, Small Craft Harbours, Pacific Region. On February 26, 2024, Ms. O'Hara emailed Ms. Gusto stating: Regarding the vessels and gear owned or controlled by Ridge Fishing Ltd., Orca Spirit Adventures Ltd., Cuda Marine Adventures Inc. or Walter Cadwallader, which I understand have been moored and stored at the [SHA] for many months without permission. I confirm as per section 7.6 of the Head Lease in the case of non-compliance to the Fisheries and Recreational Harbours Act you have Small Craft Harbour's permission to consider these vessels and other property a nuisance and take steps required to remove them from the lease area. [78] Mr. Cadwallader says that: I have searched for alternative locations available to operate Ridge, Cuda and Orca, but there is no availability of reasonable and proximate moorage, office space, workshop and storage. Where inquiries were made, the

waiting list is significant and none of the facilities could moor our vessels and handle our storage, shop and office space requirements. As well any facilities that have space are too far away. If Ridge, Cuda and Orca are evicted from Steveston Harbour, the likely outcome will be a winding up of the businesses. [79] Mr. Cadwallader was asked on discovery about efforts to find alternative sites for the defendants' businesses. He stated that there are no written records of the inquiries he made. He did not keep a list of who he made inquiries of, and said that most were just made by telephone. He was unable to provide any further details. Progress of the Litigation [80] As noted above, this action was commenced on February 1, 2022. The Notice of Civil Claim asserts that the various licenses granted to the defendants had either expired or been terminated, that the defendants had refused to remove their items from the Steveston Harbour, and that the defendants were thus trespassing. It also pleaded that: The Defendant Ships and associated gear constitute a nuisance on the Plaintiff's Property by preventing the Plaintiff from use its property, interfering with the Plaintiff's effective operation and management of it's property in accordance with the DFO head lease, and interferes with the Plaintiff's ability to issue moorage/storage licenses to active commercial fishing vessels and

their owners. [81] The original response to civil claim was filed on March 8, 2022. It asserted, among other things, that there was an oral agreement (a) that the corporate defendants' vessels were entitled to use any available moorage without SHA oversight, (b) that the SHA waived compliance with any deadlines for payments of invoices, and (c) that the corporate defendants would be given reasonable notice prior to any modification to its rights of occupation, to provide sufficient time for the defendants to adjust their business models. A similar agreement was alleged with respect to Buildings 24B and 39 and the "X" and "W" floats. The corporate defendants also pleaded an ongoing duty of good faith. [82] The corporate defendants thus pleaded that the termination of their rights of occupation as of September 30, 2021, was ineffective as being contrary to these alleged oral agreements. Alternatively, they pleaded that the acceptance of payments in respect of their ongoing occupation created a new ongoing agreement for occupation. [83] The defendants pleaded that there was no basis for the individual defendant, Mr. Cadwallader, to be made personally liable. [84] Part 3 (Legal Basis), included a pleading of proprietary estoppel, as well as the following: 4. The [SHA's] conduct towards the Corporate Defendants in specifically targeting the Corporate Defendants and the Corporate Defendants' Ships for removal is a breach of the Agreements between the Plaintiff and the Corporate Defendants, as well as the Plaintiff's mandate and purpose.

5. Further, such conduct is in violation of the principles of natural justice and/or procedural fairness, as the Plaintiff has consented for many years to the moorage of the Corporate Defendants' Ships at the Steveston Harbour and the use of the Plaintiff's Property by the Corporate Defendants. [85] The defendants filed an amended response to civil claim on June 28, 2024. It added pleadings that there is an implied term in the Head Lease that the SHA would manage the Steveston Harbour in accordance with: a) The DFO-Coast Guard Reconciliation Strategy, which has as one of its action items an increase in "involvement of Indigenous peoples in the Harbour Authorities Process"; and b) The United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 [UNDRIPA]. [86] The defendants also pleaded that the oral agreement asserted in the original response to civil claim included a term that the SHA would not modify, cancel, terminate or refuse to renew the agreement except in accordance with the DFO-Coast Guard Reconciliation Strategy and UNDRIPA. [87] Finally, the defendants pleaded that any decision to cancel, terminate, modify or refuse to renew an agreement with them could only be effected by a proper resolution of the SHA's Board recorded in its meeting minutes. [88] The corporate defendants also filed a counterclaim on March 8, 2022, claiming an equitable

interest in Building 24 based on improvements to that building, or alternatively, damages for the value of those improvements. This claim was said to be advanced, at least in part, on the basis of proprietary estoppel. It also includes a claim for general damages, based on breach of contract, breach of duty of good faith, and unjust enrichment. [89] In the response to counterclaim, the SHA asserted among other things that the defendants "have been given no representation and/or assurance that they would enjoy some right or benefit in the [SHA's] Property beyond that which was stated in the respective licenses of occupation". [90] The notice of application presently before the Court was filed on November 8, 2024 - more than four months after the amended response to civil claim. The application response was filed on December 13, 2024, and the application was heard on March 5-6, 2025. Positions of the Parties The Plaintiff [91] The plaintiff says that this is a straightforward case of license agreements having either expired or been terminated in accordance with their terms. The plaintiff says that the corporate defendants have refused to remove their property from the plaintiff's property and have continued to operate their businesses there. The plaintiff says that the corporate defendants are trespassing and are also creating a nuisance by interfering with the SHA's use of its

property. [92] The plaintiff relies on the decision of Young J. in the Medanic case and says that the facts are similar and that the same legal principles applied in that case should lead to the same result in this case. [93] The plaintiff says that there are no significant facts in dispute, the parties' legal rights are appropriately determined based on the written record, and this is a case that is clearly appropriate for determination by summary trial. The Defendants Appropriateness for Summary Trial [94] The defendants say that this case is not appropriate for summary trial. They say that the evidentiary record is insufficient, the legal issues raised are complex, and that in any event, it would be unjust to determine the parties' claims. The defendants say that, to the extent the Court concludes that this is an appropriate case for summary trial, the plaintiff's claims should be dismissed. [95] The defendants say that this matter is complex, as it involves Indigenous rights and interests in relation to the management of lands of the federal government. The defendants also advance claims of duty of good faith and fair dealing in respect of contracts in which Indigenous rights are claimed, as well as claims based on the UNDRIPA - both areas in which there is little to no legal authority. The defendants say that with respect to such issues, the law is best advanced based on a

full record after trial. [96] The defendants say that they are now contemplating seeking judicial review of the SHA's July 2021 decision to terminate or not renew their licenses of occupancy. The basis for this is discussed below. They say that dismissing the summary trial application and having the matter go to trial will permit them time to pursue that option. [97] The defendants say that the consequences of an injunction like that, sought by the SHA, would be significant for the defendants as they face the prospect of having to wind up their business, leaving Mr. Cadwallader and Ms. Wilson (who are at relatively advanced ages) with a loss of connection to the community they are part of and serve through providing employment. [98] The defendants say that the costs of taking this matter to trial, when measured against the substantial consequences to the defendants including loss of a longstanding business, are proportionate, and there is minimal urgency and no prejudice to the SHA as the corporate defendants continue to pay the monthly fees billed to them. [99] The defendants say that the June 2024 amendments to the response to civil claim give rise to new issues that will require further disclosure relevant to their claims of Indigenous rights that impact the SHA's performance of its agreements. [100] More generally, the defendants say that they have not had an opportunity to

have their voices heard - all their efforts to meet with the Board have been rebuffed, and the SHA is now seeking to have their rights disposed of on a summary basis. The defendants acknowledge that this is not a factor traditionally raised on a summary trial application, but say that it is significant in a case involving Indigenous rights infusing contractual rights that are terminated without consultation. Ongoing Contract [101] The defendants distinguish the Medanic case on three primary bases: a) The SHA refused to accept payment tendered by the defendants in that case, and did not issue invoices to them; b) The vessels in Medanic were not seaworthy and not insured; and c) There was no assertion of Indigenous rights. [102] With respect to the first of these points, the defendants submit that the continued issuance of invoices and acceptance of monies after September 30, 2021, shows an ongoing agreement for the use of SHA facilities that is binding on the SHA. They say that the issuance of an invoice reflects an offer, while the payment reflects an acceptance, and together these create a binding contract for the continued use and occupancy of the buildings and floats referenced in the invoices for the time periods referenced in the invoices. The defendants submit that, in light of the ongoing contracts created by the issuance of invoices and acceptance of payment, their

occupancy of SHA premises does not constitute a trespass. [103] With respect to the reservation of rights language on many of the invoices, the defendants say that language did not appear until 2022, and that it was not used consistently thereafter - they point to an invoice dated August 28, 2023, that does not appear to include such language. In any event, the defendants say that the reservation of rights language creates an ambiguity, as each invoice seems to recognize a license while at the same time saying that it does not create a license. The defendants say that the contra proferentem rule should apply and the invoices interpreted in favour of their proposed interpretation. [104] Given that the ongoing occupation of the SHA premises is authorized through these ongoing contracts, the defendants say as well that no nuisance has been established. They say that any interference with the SHA's operations is neither substantial nor unreasonable in the circumstances. Proprietary Estoppel [105] The corporate defendants rely on proprietary estoppel. They say that they relied on representations from the SHA, both through its ongoing contractual dealings with them and through implied representations from their conduct, that they should develop their businesses at Steveston Harbour and invest in premises there, on the understanding that they would be able to continue operating from

there in the long term. In reliance on that, the defendants (and predecessor companies) invested in improvements and developed their businesses and an employee base that were all reliant on ongoing access to SHA facilities. [106] In response to questions about how the corporate defendants can rely on actions of Trites Marine, when it was dissolved in 2012, the defendants say that it was always understood that they were "stepping into the shoes" of Trites Marine. [107] The corporate defendants say that, having relied on the representations, they are now faced with the prospect of having to seek to relocate their business operations with no available reasonable and proximate moorage, office space and storage, with the likely outcome being the winding up of their businesses. They say that they have foregone the opportunity to establish their business operations, invest in improvements and develop their businesses in an alternative location. [108] In response to questions about the lack of any specific evidence of efforts to find an alternative location, the defendants submit that Mr. Cadwallader is an elderly gentleman who has been in the business a long time, relies on others for email communication, works primarily through telephone conversations, and is not a note-keeper. They say that the fact that he did not document any of his efforts is more a matter of his business

practices than a reliable indicator of any lack of effort to find a new location. Duties Owed to Indigenous Business [109] The defendants say that the SHA operates pursuant to a delegation of authority from the Government of Canada, through Fisheries and Oceans Canada. They refer to the FRHA, including s. 4 which is quoted above. The defendants note as well that the Head Lease in this case is made pursuant to s. 8(a) of the FRHA, which permits the Minister to lease any scheduled harbour to a person. The defendants then say - relying on Archer v. Canada (Attorney General), 2012 FC 1175 - that the leasing of the Steveston Harbour is an act of delegation by the Minister, that the SHA in exercising delegated powers must act in accordance with principles of natural justice and procedural fairness, and that decisions made by it that are integral to its public interest mandate are subject to judicial review. [110] The defendants note that Ridge and Cuda are both owned entirely by Ms. Wilson, who is Indigenous, and that she is also the majority owner of Orca. The defendants note that among the business activities of Ridge are commercial fishing pursuant to two Aboriginal communal fishing licenses - one issued by the Kwakiutl, the other by the Cowichan. The defendants note that the Cowichan permit includes areas just to the west of Steveston Harbour. The defendants say that Ridge, Cuda

and Orca are "fixtures" of the fishing and ecotourism industries in Steveston, and that their operations are relied on for employment by some 65 people - approximately 82% of whom identify as Indigenous. [111] The defendants submit that a decision to terminate or not renew Ridge's licenses is integral to the ability of Ridge to operate a commercial fishery business, and must be made in accordance with principles of natural justice and in accordance with the DFO's broader policies and legal obligations. They say that the SHA failed to act in accordance with principles of natural justice, including through its refusal to permit the defendants with an opportunity to make their case to the SHA's Board of Directors. [112] The defendants acknowledge that the usual deadline to seek judicial review is 30 days after being advised of the decision, and that they have not yet exercised a right to seek judicial review of the decision to terminate or not renew their licenses (of which they were given notice in July 2021), but say that they should be given the opportunity now to seek such review. [113] The defendants made submissions about the impact of various federal government commitments to reconciliation and to the United Nations Declaration on the Rights of Indigenous Peoples. The defendants say that these matters inform their claim for judicial review (discussed above) as well as the

duties of good faith performance that they rely on (which I will discuss below). [114] The first document referred to is the DFO-Coast Guard Reconciliation Strategy, published in 2019. It includes among its long-term objectives "reduced socio-economic gaps", and among the more specific goals is that "Indigenous people have the capacity to participate in a variety of economic opportunities". Among a number of "Action Areas" identified in the strategy is the following: Small Craft Harbours · increase involvement of Indigenous people in the Harbour Authorities process [115] The second document is an "Action Plan" published by the Government of Canada in 2023, which is identified in the Introduction as being adopted in furtherance of the adoption of the UNDRIPA in June 2021. The defendants noted that s. 5 of UNDRIPA requires the Government of Canada to "take all measures necessary to ensure that the laws of Canada are consistent with the Declaration", while s. 6(1) of UNDRIPA requires the government to "prepare and implement an action plan to achieve the objectives of the Declaration". [116] I was referred to three specific provisions of the Action Plan that relate to Fisheries and Oceans Canada: 36. Pursue amendments and reforms to fisheries legislation, regulation, or policies to support self-determination and the meaningful implementation and exercise of Indigenous fishing

rights, including Aboriginal and treaty rights. (Fisheries and Oceans Canada) 37. In a manner that is measurable, enhance collaborative tools agreements and transparent approaches to better deliver on the collaborative design, development, delivery and management of fisheries, as well as conservation and protection of fish habitat. Fisheries and Oceans Canada and Crown-Indigenous Relations and Northern Affairs Canada will continue to pursue fisheries-related collaborative governance opportunities through nation-to-nation, Inuit-Crown and government-to-government negotiations. (Fisheries and Oceans Canada) 43. Establish effective mechanisms and processes to address systemic racism in the enforcement of fisheries laws and regulations. (Fisheries and Oceans Canada) [117] The defendants say that these are broad-ranging commitments that played no part in the SHA's decision-making process. The defendants note the examination for discovery evidence of Ms. Gusto, indicating that the SHA: a) has no specific policies or guidelines about dealing with Indigenous businesses versus non-Indigenous businesses; b) has no policies, directives or guidelines relating to its commitment to the Truth and Reconciliation initiatives of the federal government; and c) does not, in making decisions, take into account whether a business is Indigenous or non-Indigenous, and treats businesses the same

whether they are under Indigenous ownership or not. [118] The defendants also reference evidence that the SHA's Board considers itself to be a policy board, which does not involve itself directly in the day-to-day operations of the SHA. The defendants say that the decision to either not renew or terminate their licenses of occupation was made without a formal board resolution, and that the SHA has no formal process to permit a licensee to appeal such decisions. They note Ms. MacKay's letter of November 1, 2021, to the SHA Board of Directors and Management, to which the SHA did not respond, and which is not specifically referenced in the subsequent Board minutes. Good Faith and Contractual Discretion [119] The defendants say that the SHA had a contractual discretion to terminate or not renew the licenses granted to the defendants. The defendants say that the SHA was required to exercise that discretion in good faith. The defendants rely on the principles recently reviewed in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. Specifically, they say that based on Wastech: a) The touchstone for measuring whether a party has exercised a discretionary power in good faith is the purpose for which the discretion was created. b) Where discretion is exercised in a manner consonant with the purpose, that exercise may be characterized as

reasonable according to the bargain the parties had chosen to put in place. c) A party who does not exercise a contractual discretion in a good faith manner is in breach. [120] The defendants say that the discretion to either terminate or not renew a license was delegated to the SHA by the federal government under the Head Lease. The exercise of such a discretion by the SHA must be informed by the purpose - which the defendants say is to manage and operate the small craft harbour in a manner consistent with the policy and legislative obligations of the DFO. Those policies and legislative obligations guide and constrain the SHA in exercising its discretion. [121] The defendants say that the SHA's exercise of discretion in this case was rendered without an established decision-making process and without consideration of the delegating authority's policy obligations towards Truth and Reconciliation and the obligations under the UNDRIPA Action Plan. Here, there was no reason or system; rather, the decision was made on an ad hoc basis without any system in place and without consideration of these factors. As a result, the defendants say that the SHA's decision to evict them was unreasonable and arbitrary, and in breach of its duty of good faith. [122] The defendants say that because of the potential impact of the SHA's decision on their businesses, damages are not an adequate remedy

for breach of contract and the proper course is for the Court to refuse to accept the purported termination and require the SHA to permit the defendants to continue to operate in accordance with their previous licenses. [123] When asked about how these legal principles apply to the license of occupancy with respect to Building 39, which was simply allowed to expire on the contractual expiry date of September 30, 2021, the defendants submit that there was still a discretion exercised with respect to that license - that being a decision not to renew the contract, and that notice of such decision was given on July 20, 2021. The SHA's Reply [124] With respect to appropriateness, and the suggestion that further discovery could occur, the SHA says that a party responding to a summary trial application cannot fail to take pre-trial steps, or fail to "put their best foot forward", and then claim that a trial is necessary to fairly adjudicate a proceeding: Hallat v. Couturier, 2024 BCSC 901 at para. 19; Anglo Canadian Shipping Co. v. Pulp, Paper and Woodworkers of Canada, Local 8 (1988), 27 B.C.L.R. (2d) 378, 1988 CanLII 2879 at paras. 19-20 (C.A.) [Anglo Canadian Shipping]. [125] With respect to the alleged ongoing contract arising from monthly invoicing, the plaintiff says that the invoices were all issued well into the month, after it was clear that the defendants were not complying

with the demand that they move, and each specified that it was a one-month license only. The SHA submits that no reasonable bystander looking at the situation would conclude that these facts gave rise to a forward-looking contract for new ongoing rights of occupancy for months or years in the future. [126] With respect to proprietary estoppel, the SHA says that in order to found estoppel, an assurance must be clear enough to create an unambiguous promise that appears to have been intended to be taken seriously: Cowper-Smith v. Morgan, 2017 SCC 61 at para.

26. The SHA says that there is, in this case, essentially no evidence about any actual representation or assurance. The SHA says that Young J.'s comment in Medanic is apposite in this case as well: [58] It cannot be the case that the defendants can assert a right of berthage in perpetuity because they have been there a long time and because it is inconvenient for them to move. [127] The SHA says that the fact that the licenses had been renewed from time to time over several years is not sufficient to give rise to an estoppel, and that this is particularly so when the documents in question impose specific rights and obligations, include termination clauses, and are issued by an organization (the SHA) whose policies clearly state that agreements could be cancelled if parties do not comply with their obligations. [128] The plaintiff says even with the Indigenous law issues raised by the defendants, this case is at its root a commercial owner-licensee dispute, apt for summary determination. The plaintiff says that, upon close examination, it is clear that the defendants are not relying on Aboriginal rights per se; rather, they are saying that as an Indigenous business, they are entitled to fair dealing. The SHA says that it has been fair. [129] The SHA notes that there is no evidence that defendants made the SHA aware at any time prior to litigation that they were relying on

obligations under the DFO-Coast Guard Reconciliation Strategy. The SHA notes that the Action Plan relied on by the defendants was adopted in 2023 - two years after the events in issue. [130] The SHA says that, to the extent issues of Indigenous rights were raised at the hearing of this application, they were not expressly pleaded in the amended response to civil claim, and were raised only tangentially in the defendants' application response. [131] The SHA notes that Ms. Wilson is a member of the Kwakiutl Fort Rupert Band, the traditional territory of which is on northern Vancouver Island. The SHA says that, based on the authority of Behn v. Moulton Contracting Ltd., 2013 SCC 26 [Behn], Aboriginal rights are collective rights and owed to the Aboriginal group that holds them. An individual Indigenous person cannot claim Aboriginal rights unless authorized to advance that claim by such group: MacDonald v. British Columbia, 2022 BCCA 381 at para.

16. There is no evidence either that the Kwakiutl Fort Rupert Band asserts Aboriginal rights with respect to the Steveston Harbour or that it has authorized Ms. Wilson to claim such rights on its behalf. [132] With respect to the existence of Aboriginal fishing licenses, the SHA submits that the fact that the Cowichan Band is leasing a ceremonial and food fishing license to Ridge does not mean that Ridge is exercising its own Aboriginal right to fish; rather, it is simply acting as a contractor to help the Cowichan Band exercise its Aboriginal right. [133] With respect to the defendants' raising the question of whether they can seek judicial review of the decision of the SHA, the SHA notes that the deadline to seek judicial review in the Federal Court is 30 days after the decision was communicated. The defendants have been represented by counsel since early 2022, and filed their original response to civil claim in March 2022. The SHA submits that to argue that there be further delays in order to facilitate judicial review, three years after filing its pleading in this action and nearly four years after the decision in issue, is an abuse of process. [134] The SHA says that, if it is a Crown agent, and the federal government policies apply, then the SHA is in compliance with the DFO-Coast Guard Reconciliation Strategy. The SHA notes that its Board includes a representative of the

Musqueam First Nation, which it says reflects a step taken in respect of this strategy, and in particular the identified "Action Area" of increasing "involvement of Indigenous people in the Harbour Authorities process". [135] With respect to Mr. Cadwallader's suggestion that the SHA's Board of Directors should have involved itself in the SHA's dealings with him, the SHA says that it is not inappropriate for a large harbour operated by a not-for-profit corporation with a volunteer board to place day-to-day issues like managing licenses of occupancy in the hands of paid staff. In any event, the Board minutes do disclose fact that this matter was before the Board on numerous occasions. The SHA says that there was no obligation on it to give Mr. Cadwallader the right to attend a meeting to make representations to the Board. [136] With respect to the principles of good faith in the exercise of a contractual discretion, the SHA submits that in this case, as in Wastech, the contract clearly provided a mechanism for either party to give notice of termination. The SHA says that it acted in accordance with the contract, that it did so after multiple warnings to the defendants, and that the reasons given for its termination relate directly to the SHA's mandate under the Head Lease and the purpose of the licenses of occupancy. [137] The SHA agrees that this is a case in which damages are

not a realistic remedy. The SHA says that the only effective remedy in this case is to give force to the termination clause and permit the SHA to exercise its right to its property, and that the only realistic way to do that is through granting a permanent injunction. Legal Context Appropriateness for Summary Trial [138] Rule 9-7(15) of the Supreme Court Civil Rules provides that: On the hearing of a summary trial application, the court may (a) grant judgment in favour of any party, either on an issue or generally, unless (i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application, [139] There are thus two parts to the analysis of appropriateness for summary trial: (a) whether the court is able to find the facts necessary to decide the issues, and (b) whether it would be unjust to decide the issues summarily. [140] The underlying general principle was summarized by Chief Justice McEachern in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, 1989 CanLII 229 (C.A.): [53] If the chambers judge can find the facts, then he must give judgment as he would upon a trial unless for any proper judicial reason he has the opinion that it would be unjust to do

so. [54] The test for Rule 18A, in my view, is the same as on a trial. Upon the facts being found the chamber judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to law unless he has the opinion that it will be unjust to give such judgment. [55] In deciding whether the case is an appropriate one for judgment under Rule 18A the chambers judge will always give full consideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient for adjudication. For example, the absence of an affidavit from a principal player in the piece, unless its absence is adequately explained, may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do, so. But even then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue. [141] If adequate notice is given to an opposing party that a summary trial application is going to be brought on, then there falls on that party an obligation to take every reasonable step to complete as much of the pre-trial procedures as is necessary to put them into the best mastery of the facts that is reasonably possible before the

summary trial proceedings are heard. A party cannot, by failing to take every reasonable step to prepare for the application, frustrate the benefits of the summary trial rule. This principle, enunciated in Anglo Canadian Shipping, has been repeated more recently in Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34 and Universe v. Fraser Health Authority, 2022 BCCA 201 at para. 18. [142] With respect to the question of whether it is unjust to decide a matter by way of summary trial, relevant factors have been found to include the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings, the cost of the litigation and the time of the summary trial, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create unnecessary complexity in the resolution of the dispute, and whether the application would result in litigating in slices: Gichuru v. Pallai, 2013 BCCA 60 at paras. 30-31 and Dahl v. Royal Bank of Canada, 2005 BCSC 1263 at para. 12, aff'd 2006 BCCA 369. Contract Principles [143] As noted, the SHA relies on the judgment of Young J. in Medanic, which the plaintiff says is on all fours with the present case (other than the

Aboriginal law issues raised by the defendants in the present case). Medanic involved two former fishing vessels that had used the Steveston Harbour since the 1980s. Although they had not been actively fished since 2005, they retained fishing quotas of significant value. The SHA gave notice in November 2017 for the defendants to remove the vessels, but inadvertently issued a new invoice for a one-year period ending September 2018 which the defendants paid. The defendants attempted to pay for another year of moorage in October 2018, but the SHA refused to accept payment. [144] The licenses in issue in Medanic had effectively the same termination provisions as the licenses in the present case. [145] Justice Young considered the SHA's claim in trespass beginning at para. 51: [51] At common law, trespass can be established by proving that the plaintiff has an interest in property and that the defendant is occupying the space without authorization: Vancouver (City) v. O' Flynn-McGee, 2011 BCSC 1647. [52] The plaintiff holds a leasehold interest in the Steveston Small Craft Harbour, docks and storage facilities and has the right to manage that property. Under its authority to manage the harbour, it adopted operations directives which prioritize active commercial fishing vessels. With this change in policy, the Western Breeze and the Neekis no longer fit the berthage criteria for the

Paramount Site. [53] The defendants were given notice in November 2017 that they would no longer be permitted to keep their vessels and stored gear at the Paramount Site and that the plaintiff would no longer accept money for berthage. Since then, the ships have occupied the harbour without a legal right to do so. [54] I find that the plaintiff has established that the defendants are trespassing. [146] Justice Young considered the claim in nuisance beginning at para. 55: [55] As an alternate claim, the plaintiff alleges that the defendants are creating a nuisance because they are substantially interfering with the plaintiff's use or enjoyment of the harbour or interest in the harbour and where, in light of all the surrounding circumstances, the injury or interference is held to be unreasonable. [56] The defendant vessels are occupying a prime deep water berthage slip which is ideal for large commercial fishing vessels and they are not actively fishing. Their occupation of that space prevents the plaintiff from renting this base to commercial fishing vessels which do fit its policy. In that regard, the continued occupation by the defendant ships is causing a nuisance to the plaintiff. [57] In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, Justice Cromwell defined the elements of private nuisance at para. 19 as follows: [19] The elements of a claim in private

nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner's use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances. This two-part approach found favour with this Court in its most recent discussion of private nuisance and was adopted by the Court of Appeal in this case, at para. 80: St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 77; see also St. Pierre v. Ontario (Minister of Transportation and Communications), [1987] 1 S.C.R. 906, at pp. 914-15, quoting with approval H. Street, The Law of Torts (6th ed. 1976), at p. 219; Susan Heyes Inc. v. Vancouver (City), 2011 BCCA 77, 329 D.L.R. (4th) 92, at para. 75, leave to appeal refused [2011] 3 S.C.R. xi; City of Campbellton v. Gray's Velvet Ice Cream Ltd. (1981), 127 D.L.R. (3d) 437 (N.B.C.A.), at p. 441; Royal Anne Hotel Co. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756 (B.C.C.A.), at p. 760; Fleming's The Law of Torts (10th ed. 2011), at s. 21.80; J. Murphy and C. Witting, Street on Torts (13th ed. 2012), at p. 443; L. N. Klar, Tort

Law (5th ed. 2012), at p. 759. [58] The defendants' continued occupation of prime berthage slips is creating a substantial interference with the plaintiff's right and enjoyment of the property. It cannot be the case that the defendants can assert a right of berthage in perpetuity because they have been there a long time and because it is inconvenient for them to move. The plaintiff has the right to manage the harbour and to set its own priorities and insist that those renting berthage comply with the new priorities. For that reason, I find the ongoing occupation by the defendant ships to be unreasonable and to create a nuisance. [147] With respect to remedy, Young J. said beginning at para. 69 that: [69] I grant a declaration that the Western Breeze and the Neekis are trespassing on the plaintiff's property and are causing a nuisance. [70] The plaintiff seeks a permanent injunction against the ships from mooring at the plaintiff's property and otherwise storing personal property on the plaintiff's property. [71] In Cambie Surgeries v. British Columbia, 2010 BCCA 396, Justice Groberman said at para. 28: [28] In order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final

injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief. [72] I have assessed the merits of the plaintiff's case. I have determined that since there is no contractual remedy available to the plaintiff, an injunction is the appropriate remedy. [73] I will, however, take into consideration the difficulty the defendants have had finding alternate moorage for the Western Breeze and the Neekis. [74] Clearly, the Western Breeze will need to be towed given that her engines are not functioning. It appears from the marine survey and modifications done to the Neekis that she is seaworthy. [75] The defendants say that they have been looking for moorage in the lower mainland, close to their residences, to enable them to continue to check on the vessels. They have not been able to find moorage. [76] I agree with the plaintiff's submission that the defendants have been overly selective, looking in very popular highly sought-after locations. They will have to expand their search to perhaps less convenient locations. [77] In fairness to the defendants, I will give them until June 30, 2019 to relocate the vessels on the condition that they pay the moorage and storage fee from November 1, 2017 to the

date when the Western Breeze and the Neekis cease to occupy the Paramount Site. In addition, they will continue to monitor the vessels at a minimum of every two weeks to ensure that they are not creating a hazard. The parties have liberty to apply back to court to review these terms if the need arises. [148] Justice Young's decision was issued on March 7, 2019, meaning that the time she found reasonable for the vessels to be relocated was just under four months. Proprietary Estoppel [149] With respect to proprietary estoppel, both parties relied on the statement of the law in Cowper-Smith. Chief Justice McLachlin explained the governing principles as follows: [15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word: . The representation or assurance may be express or implied: . An inchoate equity arises at the time of detrimental reliance on a representation or assurance. It is not necessary to determine, in

this case, whether this equity is personal or proprietary in nature. When the party responsible for the representation or assurance possesses an interest in the property sufficient to fulfill the claimant's expectation, proprietary estoppel may give effect to the equity by making the representation or assurance binding. [16] Proprietary estoppel protects the equity, which in turn protects the claimant's reasonable reliance: see S. Bright and B. McFarlane, "Proprietary Estoppel and Property Rights" (2005), 64 Cambridge L.J. 449, at p.

452. Like other estoppels, proprietary estoppel avoids the unfairness or injustice that would result to one party if the other were permitted to break her word and insist on her strict legal rights: see Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co., [1981] 1 All E.R. 897 (Ch.), at pp. 909, 915-16 and 918. As Lord Denning M.R. put it in Amalgamated Investment & Property Co. (In Liquidation) v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 (C.A.), at p. 122: When the parties to a transaction proceed on the basis of an underlying assumption -- either of fact or of law -- whether due to misrepresentation or mistake makes no difference -- on which they have conducted the dealings between them -- neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. See also Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at para. 51; MacDougall, at pp. 15-16. [17] Where protecting the equity of the case may demand the recognition of "new rights and interests . . . in or over land" (Crabb v. Arun District Council, [1975] 3 All E.R. 865 (C.A.), at p. 871, per Lord Denning M.R.), proprietary estoppel can do what other estoppels cannot -- it can found a cause of action: see MacDougall, at p. 424;

McGhee, at pp. 330-33. Where the ingredients for a proprietary estoppel are present, the court must determine whether it is appropriate to satisfy the equity by recognizing the modification or creation of property rights "in situations where there is want of consideration or of writing": Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)), by A. W. La Forest, at p. 28-3. [150] Chief Justice McLachlin also discussed principles governing determination of an appropriate remedy, beginning at para. 46: [46] Where a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances [47] Still, "the court must take a principled approach, and cannot exercise a completely unfettered discretion according to the individual judge's notion of what is fair in any particular case" A claimant who establishes the need for proprietary estoppel is entitled only to the minimum relief necessary to satisfy the equity in his favour Since the equity aims to address the unfair or unjust detriment the claimant would suffer if the owner were permitted to resile from her inducement, encouragement, or acquiescence, "there must be a proportionality between the remedy and the detriment which is its purpose to avoid" Administrative and Aboriginal Law Principles [151] The defendants' submissions with respect to their potential

ability to seek judicial review are based on the judgment in Archer, which involved another harbour authority operating pursuant to a lease from the federal government made pursuant to the FRHA. The underlying facts were set out in the judgment as follows: [1] The applicant seeks to set aside a decision of the False Creek Harbour Authority (FCHA) not to renew his lease of a storage locker at the False Creek Fishermen's Terminal (Harbour) in Vancouver, British Columbia. [6] On March 9, 2010, the Harbour Manager of the FCHA notified the applicant by letter that it appeared that he did not meet the eligibility requirements for occupying a locker because he had not been active as a commercial fisher over the past three years. [9] On January 17, 2011, counsel for the FCHA sent an email to the applicant's counsel advising that the applicant had not established that he met the eligibility requirements for a locker and that he must vacate his locker within seven days. The applicant seeks judicial review of this decision. [152] At para. 11, Justice Rennie (as he then was) noted that judicial review is only available for decisions or actions of "a federal board, commission or other tribunal". At para. 12, he noted that the test for whether a decision-maker fits this definition is two-fold, in that "First, it must be determined what jurisdiction or power the body or person seeks to

exercise. Second, it must be determined what is the source or the origin of the jurisdiction or power which the body or person seeks to exercise". At para. 13, he commented that: [13] Construed at its narrowest, the power the FCHA sought to exercise in this instance was the power to decide whether or not to renew a lease to a gear storage locker, which is an incidental aspect of its more general authority to operate and manage the Harbour. [153] Having considered the provisions of the FRHA, Rennie J. commented that: [22] Thus, the Minister is not permitted to simply lease a harbour to an individual for his or her private enjoyment, nor can the Minister lease it to a corporation to run in whatever manner it chooses. Rather, any lessee of a harbour must operate it in a way that ensures access to the public. In my view, these provisions, when read together, imply authorization for the Minister to sub-delegate his authority over the use, management and maintenance of a harbour to its lessee. The lessee is, in effect, authorized to operate and manage all aspects of the harbour as if the Minister had retained control over it. Indeed, the wording of the Lease mirrors, almost precisely, the authority granted to the Minister by Parliament under section 4 of the FRHA: [28] Therefore, I find that the FRHA does impliedly authorize the Minister to delegate his authority over the use,

management and maintenance of the Harbour, and I further find that the Minister has delegated that authority to the FCHA. [154] Justice Rennie noted that: [36] To characterize the FCHA as something other than a federal board simply by reason that the instrument of delegation was a lease would allow for a triumph of formalism over substance. However, as the Court of Appeal makes clear and as will be discussed below, a finding that an entity is a federal board does not mean that all decisions of the FCHA are made in that capacity. [155] As a result, he went on to consider whether the decision not to renew Mr. Archer's locker lease was reviewable under s. 18.1 of the Federal Court Act: [37] A finding that the FCHA is a federal board, commission or tribunal does not mean that all its decisions or actions are justiciable. Stratas JA explained this distinction in Air Canada v. Toronto Port Authority, 2011 FCA 347, at paragraph 52: Every significant federal tribunal has public powers of decision-making. But alongside these are express or implied powers to act in certain private ways, such as renting and managing premises, hiring support staff, and so on. In a technical sense, each of these powers finds its ultimate source in a federal statute. But, as the governing cases cited below demonstrate, many exercises of those powers cannot be reviewable. For example, suppose that a

well-known federal tribunal terminates its contract with a company to supply janitorial services for its premises. In doing so, it is not exercising a power central to the administrative mandate given to it by Parliament. Rather, it is acting like any other business. The tribunal's power in that case is best characterized as a private power, not a public power. Absent some exceptional circumstance, the janitorial company's recourse lies in an action for breach of contract, not an application for judicial review of the tribunal's decision to terminate the contract. [38] Thus, the relevant question at this stage is whether the decision not to renew the locker lease was part of the FCHA's public power, or whether it was acting in its private, commercial capacity. In Toronto Port Authority, the Court of Appeal observed that the answer to this question requires a weighing of all the circumstances. Applying those factors to this case, I find that the FCHA's power is a private, commercial power, and therefore not subject to judicial review. The character of the matter for which review is sought [39] The matter in this case is the decision to whom to rent gear storage lockers at the Harbour. The FCHA characterizes this as a private commercial matter, while the applicant frames it as closely linked to the FCHA's statutory mandate to operate a public commercial fishing harbour. [40] The

answer to this question is rooted in the evidence. It was undisputed that having the use of or access to a locker was not necessary to the carrying on of business as a commercial fisher. It was a convenience, but it was conceded that other fishers, both at False Creek and elsewhere, actively fish without the benefit of a locker. This fact, that the locker is not integral to the mandate of providing moorage for fishers is critical in the determination that the decision is not part of the public mandate of the FCHA. [41] As noted by Stratas JA in White Bear First Nations v Canada (Indian Affairs and Northern Development), 2012 FCA 224, para 40, it is important to consider the decision itself apart from its effect: This is not to say that the effects of the decision do not enter the analysis. They can: they may be relevant to the assessment of the correctness or reasonableness of the decision. But it is the decision itself that is being reviewed. [42] Here, neither the decision, nor its consequence, have a public character. While the applicant would prefer to have a locker, it is not, on the clear evidence before the Court, essential to the operation of a commercial fishery. [43] Ultimately, I find it important to note that the objective in renting out storage lockers is to attract commercial fishers to use the Harbour. Fishers have informed the FCHA that they would be more likely

to use the Harbour if they could use a storage locker. Therefore, this decision can be characterized as commercial in the sense that the FCHA is trying to attract greater business to its Harbour to ensure its financial viability. However, given my finding that it is not integral to the operation of a commercial fishery, it has no public character and is beyond judicial review. ... [54] The applicant has also made several submissions on alleged breaches of procedural fairness all of which are without merit. The duty of fairness owed by the FCHA in this context is minimal and was amply discharged by providing the applicant the opportunity to prove that he was an active commercial fisher and therefore entitled to continue leasing a locker. The FCHA provided him with written notice and several opportunities to present evidence, including a meeting. The applicant did not provide such proof and, indeed, could not have done so, since by his own account he is not an active commercial fisher. The FCHA reasonably sought proof of income from fishing. When the applicant objected to disclosure of his tax returns on the basis of confidentiality, counsel made reasonable efforts to ensure protection of his personal information. [156] The defendants assert that the SHA failed to give appropriate consideration to an action plan established pursuant to UNDRIPA. There is a useful discussion of

that statute in Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319 [Kebaowek], although it should be noted that in Kebaowek, the court used "UNDA" to refer to what I have referred to as UNDRIPA, and "UNDRIP" to refer to the United Nations Declaration itself: [74] The UNDRIP is an international human rights instrument that sets out the collective and individual rights of Indigenous peoples and underscores the importance of self-determination. The rights set out in the UNDRIP represent the "minimum standards for the survival, dignity and well-being of Indigenous peoples around the world" (UNDA, Preamble, at para 2). The UNDRIP emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, cultures, and traditions, and promotes the pursuit of social and economic development aligned with the collective aspirations. The UNDRIP also advocates for the right of Indigenous people to full and effective participation in matters that concern them within states. [75] The UNDRIP was adopted by the United Nations General Assembly on September 13, 2007. At the time, four states voted against its adoption: Australia, Canada, New Zealand, and the United States. In November 2010, following a change in position by New Zealand, Australia, and the United States, Canada conditionally endorsed the UNDRIP in a manner "fully consistent with Canada's

Constitution and laws." In May 2016, Canada officially removed its conditional endorsement and announced that it is "now a full supporter of the [D]eclaration, without qualification" and that Canada would "adopt and implement the [D]eclaration in accordance with the Canadian Constitution." There were attempts to pass federal legislation to implement the UNDRIP between 2016 and 2021. The UNDA was officially passed and became apart of Canadian law on June 21, 2021. [76] The UNDRIP may be relied on to interpret Canadian law (Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5 [Reference] at para 4; R c Montour, 2023 QCCS 4154 [Montour] at para 1287). The UNDRIP does not create new law or statutory obligations; rather, it is an interpretive lens to be applied to determine if the Crown has fulfilled its obligations prescribed at law. A review of the jurisprudence confirms that courts have not found that the UNDRIP created or is a source of Aboriginal or Treaty rights. However, the Supreme Court has indicated that the rights set out within the UNDRIP exist, suggesting that the UNDA has codified pre-existing rights (Reference at para 17; see also Senwung Luk, "UNDRIP is now part of Canada's "domestic positive law". What does this mean?" (April 4, 2024), online:

<https://www.oktlaw.com/undrip-is-now-part-of-canadas-domestic-positive-law-what-does-this-mean/>). [77] Importantly, the Supreme Court has clarified that the UNDRIP is the foundational framework for the "reconciliation initiative by Parliament" (Reference at para 3). The UNDA is the legislative measure that provides a framework for the implementation of the UNDRIP (Reference at para 4). However, the Supreme Court was clear that like the UNDRIP, the UNDA is not a source of rights, "but rather proceeds on the premise that these rights exist" (Reference at para 17). [78] Recently, the Supreme Court found that "[w]hile the Declaration is not binding as a treaty in Canada the Declaration has been incorporated into the country's positive law by the [UNDA]" (Reference at para 4; see also Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 [Dickson] at para 317, per Martin J. and O'Bonsawin J., dissenting). Parliament's enactment of the UNDA in 2021 "[affirmed] the Declaration 'as a universal human rights instrument with application in Canada law'. It is therefore through this Act of Parliament that the Declaration is incorporated into the country's domestic positive law" (Reference at para 15). Finally, I note that Parliament clarified that "[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian Law" (UNDA, subsection 2(3)). [79] While the

Respondent is correct that Canada "must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration" (UNDA, section 5); that the Minister must prepare and implement an action plan (UNDA, section 6); and prepare an annual report on the progress of the same (UNDA, section 7), it is clear that neither the necessary measures and work to ensure consistency of laws nor the development of an action plan are intended to delay the implementation of the UNDRIP into Canadian law (UNDA, subsection 2(3)). [80] To summarize, the UNDRIP was incorporated into Canada's positive legal framework on June 21, 2021, through the UNDA. Accordingly, the UNDRIP may be used to interpret Canadian law and legal obligations. This is consistent with some recent observations of the Supreme Court in the context of the interpretation of section 25 of the Charter: [section] 25 was intended to operate as an interpretive prism based on its nature, purpose, and history. This approach is most consistent with the way in which competing rights under the Charter are balanced and best reflects the needs of all Indigenous people, the final recommendations of the Royal Commission, and the rights enshrined in UNDRIP. It provides a respectful and responsive path forward into a future in which Charter rights and Indigenous

conceptions of rights will be integrated in a variety of legal fora. [Dickson at para 289.] [157] In Behn, individual defendants (the Behns) attempted to defend a claim against them for wrongful interference with logging operations by asserting that the license authorizing the logging operations was void because it was issued in breach of the duty to consult and violated treaty rights. The courts below had concluded that the Behns lacked standing to assert what were collective rights that the Behns had not been authorized to advance. The Supreme Court of Canada affirmed this decision. [158] Justice LeBel concluded with respect to the standing issue that: [30] The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights [31] In this appeal, it does not appear from the pleadings that the FNFN authorized George Behn or any other person to represent it for the purpose of contesting the legality of the Authorizations. I note, though, that it is alleged in the pleadings of other parties before this Court that the FNFN had implicitly authorized the Behns to represent it. As a matter of fact, the FNFN was a party in the

proceedings in the courts below, because Moulton was arguing that it had combined or conspired with others to block access to Moulton's logging sites. The FNFN is also an intervener in this Court. But, given the absence of an allegation of an authorization from the FNFN, in the circumstances of this case, the Behns cannot assert a breach of the duty to consult on their own, as that duty is owed to the Aboriginal community, the FNFN. Even if it were assumed that such a claim by individuals is possible, the allegations in the pleadings provide no basis for one in the context of this appeal. [159] This principle was applied by Justice Grauer in MacDonald. Mr. MacDonald, who was not a member of the Haida Nation, sought to argue that land he occupied was Haida land and only the Haida Nation could evict him. Justice Grauer noted at paras. 12-15 that: [12] Mr. MacDonald's problem is that the nature of the issue he seeks to raise makes it inappropriate for consideration in the context in which he seeks to raise it. [13] That context distinguishes this situation from that considered by the Supreme Court of Canada in Canadian Egg Marketing Agency v Richardson, [1998] 3 SCR 157. There, the question was whether the "Big M Drug Mart exception" (from R v Big M Drug Mart Ltd, [1985] 1 SCR 295) applied in a civil case to the corporate respondents who, as corporations, were generally not

entitled to invoke provisions of the Charter. In Big M Drug Mart, the Court concluded that any accused could defend a criminal charge by arguing that the legislation under which the charge is brought is constitutionally invalid (at 313). [14] In the Canadian Egg Marketing Agency case, the Court extended that exception to give standing as of right to the corporate respondents in relation to a claim by the appellant marketing agency against them for damages and injunctive relief as a result of the illegal interprovincial marketing of eggs: [40] They have been put in jeopardy by a state organ bringing them before the court by an application for an injunction calling in aid a regulatory regime. Success of that application could result in enforcement by contempt proceedings. If the foundation for these remedies is an unconstitutional law, it appears extraordinary that a defendant cannot be heard to raise its unconstitutionality solely because the constitutional provision which renders it invalid does not apply to a corporation. [15] Mr. MacDonald is in a different position altogether. He has not been charged under a statute he maintains is unconstitutional. In order to succeed in his defence and counterclaim, Mr. MacDonald must clear the hurdle of invalidating the Crown's title to the Property. As the trial judge observed at para 29, in law the land is Crown land until proven

otherwise: see, for instance, Tsilhqot'in Nation v British Columbia, 2014 SCC 44 at paras 115 -117, where the Supreme Court of Canada confirmed the status of land under claims for Aboriginal title as Crown land until such time as Aboriginal title is confirmed by agreement or court order. [160] Justice Grauer concluded that the principle in Behn was applicable: [16] Consequently, Mr. MacDonald can only succeed by establishing the Aboriginal title and rights of the Haida Nation to the Property by court order. But as this Court held in Moulton Contracting Ltd v Behn, 2011 BCCA 311, any such rights belong collectively to (in this case) the Haida Nation, and only a person or entity authorized by the Haida Nation may speak on its behalf. Mr. MacDonald neither pleaded nor established any such authority. He is therefore barred from asserting title on behalf of the Haida Nation, which is asserting its rights in its own litigation. Indeed, both the CHN and the Haida Nation Hereditary Chiefs Council have confirmed that they do not support Mr. MacDonald's case. The CHN maintains that it alone has the authority and mandate to advance litigation in relation to Haida title and rights. Good Faith in Contractual Discretion and Renewals [161] A series of Supreme Court of Canada judgments in recent years have recognized good faith as an organizing principle of contract law, and also developed the

legal principles governing good faith in respect of specific types of cases. [162] In Bhasin v. Hrynew, 2014 SCC 71, an education saving plan firm contracted with Mr. Bhasin to act as an "enrollment director" by way of a contract that was to automatically renew at the end of its three-year term unless one of the parties gave six months' notice to the contrary. The firm was not honest with respect to its dealings with Mr. Bhasin, particularly as it related to its interactions with a competitor, Mr. Hrynew. Ultimately, the firm gave Mr. Bhasin six months' notice of non-renewal. [163] After a comprehensive survey of the law, Justice Cromwell concluded (at para. 63) that "there is an organizing principle of good faith that underlies and manifests itself in various more specific doctrines governing contractual performance. That organizing principle is simply that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily." At paras. 66 and 70, he explained: [66] This organizing principle of good faith manifests itself through the existing doctrines about the types of situations and relationships in which the law requires, in certain respects, honest, candid, forthright or reasonable contractual performance. Generally, claims of good faith will not succeed if they do not fall within these existing doctrines. But we should also

recognize that this list is not closed. The application of the organizing principle of good faith to particular situations should be developed where the existing law is found to be wanting and where the development may occur incrementally in a way that is consistent with the structure of the common law of contract and gives due weight to the importance of private ordering and certainty in commercial affairs. [70] The principle of good faith must be applied in a manner that is consistent with the fundamental commitments of the common law of contract which generally places great weight on the freedom of contracting parties to pursue their individual self-interest. In commerce, a party may sometimes cause loss to another -- even intentionally -- in the legitimate pursuit of economic self-interest . Doing so is not necessarily contrary to good faith and in some cases has actually been encouraged by the courts on the basis of economic efficiency . The development of the principle of good faith must be clear not to veer into a form of ad hoc judicial moralism or "palm treeˮ justice. In particular, the organizing principle of good faith should not be used as a pretext for scrutinizing the motives of contracting parties. [164] One of the existing classes of cases recognized by Justice Cromwell involved a requirement of good faith in some situations in which a party to a contract had a discretion to exercise. With respect to such cases, he noted that: [50] Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada, [1995] 2 S.C.R. 187, is an example of the second type of situation (exercise of contractual discretion). The lease of a helicopter included an option to buy at the "reasonable fair market value of the helicopter as established by Lessor": para.

2. This Court held, at para. 34, that, "[c]learly, the lessor is not in a position, by virtue of clause 32, to make any offer that it may feel is appropriate. It is contractually bound to act in good faith to determine the reasonable fair market value of the helicopters, which is the price that the parties had initially agreed would be the exercise price of the option." The Court did not discuss the basis for implying the term, but suggested that in the absence of a reasonableness requirement, the option would be a mere agreement to agree and thus would be unenforceable, which means that the implication of the term was necessary to give business efficacy to the agreement. [165] However, Justice Cromwell concluded that Mr. Bhasin's claim could not succeed on that basis, noting at para. 72 that: Classifying the decision not to renew the contract as a contractual discretion would constitute a significant expansion of the decided cases under that type of situation. After all, a party almost always has some amount of discretion in how to perform a contract. Rather, Justice Cromwell concluded that Mr. Bhasin was entitled to compensation as a result of the firm's failure in its duty of honest performance. [166] A similar approach was taken in C.M. Callow Inc. v. Zollinger, 2020 SCC 45 [Callow]. The appellant Callow had a maintenance contract that included a provision giving Baycrest

the right to terminate the contract on 10 days' notice if, for any reason, Callow's services were no longer required. Callow advanced its claim on two bases: a breach of the duty of honest performance and an unreasonable exercise of the discretion to terminate. The Court concluded that Baycrest had misled Callow about its intentions, and was thus in breach of the duty of honest performance. As a result, there was no need to decide whether there was a duty of good faith in respect of the discretion to terminate. [167] Both Justice Kasirer, for the majority, and Justice Brown, for a concurring minority, commented on the question of whether good faith would apply to a contractual discretion to exercise a termination clause. Justice Kasirer said: [43] I begin by recognizing the debate as to the extent to which good faith, beyond the duty of honesty, should substantively constrain a right to terminate, in particular one found in a contract (see, e.g., W. Courtney, "Good Faith and Termination: The English and Australian Experience" (2019), 1 Journal of Commonwealth Law 185, at p. 189; M. Bridge, "The Exercise of Contractual Discretion" (2019), 135 L.Q.R. 227, at p. 247). For some, the right to terminate is in the nature of an "absolute right" insulated from judicial oversight, unlike the exercise of contractual discretion (see E. Peel, The Law of Contract (15th ed. 2020), at para.

18‑088). To this end, I recall that Cromwell J. observed that "[c]lassifying the decision not to renew the contract as a contractual discretion would constitute a significant expansion of the decided cases under that type of situation" (Bhasin, at para. 72). I need not and do not seek to resolve this debate in this case. I emphasize that Cromwell J. himself recognized that, regardless of this debate, the non‑renewal clause could not be exercised dishonestly (para. 94). Whatever the full range of circumstances to which good faith is relevant to contract law in common law Canada, it is beyond question that the duty of honesty is germane to the performance of this contract, in particular to the way in which the unilateral right to terminate for convenience set forth in clause 9 was exercised. [168] Justice Brown similarly noted that: [136] Callow also argues that Baycrest's decision to terminate the winter service agreement was a discretionary decision that it was required to make in good faith. He relies on the good faith duty that arises "where one party exercises a discretionary power under the contract", and which was affirmed by this Court in Bhasin (para. 47). As a preliminary matter, I note that not every decision that involves a degree of discretion is subject to this duty . The extent to which it applies to unfettered termination rights remains unsettled, and I do not

purport to resolve that controversy here . [137] This duty limits the exercise of certain contractual powers that may appear to grant one party unfettered discretion. For the purposes of this appeal, it is unnecessary to express a firm view on the standard that applies to a breach of this duty. It is sufficient to note that where a plaintiff relies on this duty, its complaint is not about dishonesty; rather, it is that the defendant was not entitled to make the decision that it made. The wrongful behavior is the very exercise of discretion [169] A few weeks after Callow was decided, the Supreme Court issued its decision in Wastech. In Wastech, a contract between a district and a waste removal contractor gave the district the contractual power to decide where waste would be allocated in the region. The contractor said that the district exercised that power in a way that made it impossible to earn the level of profit it had bargained for. [170] Justice Kasirer noted at para. 3 that the question was not so much whether a duty to exercise contractual discretion in good faith exists, but rather the basis on which it exists and the standard applied to determine whether it is breached. At paras. 4-7, he summarized the applicable legal principles and the decision he reached: [4] The duty to exercise contractual discretion is breached only where the discretion is exercised unreasonably,

which here means in a manner unconnected to the purposes underlying the discretion. This will be made out, for example, where the exercise of discretion is arbitrary or capricious, as Cromwell J. suggested in Bhasin in his formulation of the organizing principle of good faith performance. According to Bhasin, this duty is derived from the same requirement of corrective justice as the duty of honest performance, which requirement demands that parties exercise or perform their rights and obligations under the contract having appropriate regard for the legitimate contractual interests of the contracting partner. Like the duty of honest performance observed in C.M. Callow Inc. v. Zollinger, 2020 SCC 45, [2020] 3 S.C.R. 908, the duty recognized here is one that applies in a manner Cromwell J. referred to as doctrine in Bhasin, i.e., the duty applies regardless of the intentions of the parties (Bhasin, at para. 74). [5] Carefully considered, the appellant's case does not rest on allegations that it fell prey to lies or deception. There is no claim that the respondent exercised its discretion capriciously or arbitrarily. The appellant does not point to, under the guise of allegedly unreasonable conduct, any identifiable wrong committed by the respondent beyond seeking its own best interest within the bounds set for the exercise of discretion by the agreement. The duty of good faith at

issue here constrains the permissible exercise of discretionary powers in contract but, in so doing, it does not displace the detailed, negotiated bargain as the primary source of justice between the parties. [6] Importantly, the good faith duty at issue does not require the respondent to subordinate its interests to those of the appellant, nor does it require that a benefit be conferred on the appellant that was not contemplated under the contract or one which stands beyond the purposes for which the discretion was agreed. Here, the appellant decries conduct that is self-interested, to be sure, and that, it says, made it impossible to achieve the fundamental benefit for which it had bargained. But in seeking damages for this loss, the appellant does not allege that the respondent committed any actionable wrong in exercising the discretion provided for under the contract. While it is true the arbitrator characterized the long-term contract here as a relational one, he found that the situation giving rise to this dispute, however unlikely it may have appeared to the parties, was a risk that the parties had specifically considered in drafting their detailed agreement. In that context, whatever trust and cooperation that the parties might owe one another arising out of the long‑term relational character of the contract cannot resolve this case in favour of the appellant by

requiring the respondent to act as a fiduciary. [7] When the contours of good faith performance in this context are properly identified, it is plain that the respondent did not exercise its power to reallocate waste in breach of a good faith duty. In point of fact, in its call to be paid damages on the basis of the contractual duty of good faith owed to it by the respondent, the appellant is asking the Court to award it an advantage not provided for in the agreement between the parties in the absence of any appreciable breach of contract or identifiable wrong. This seems to me to confuse the requirements of good faith performance with an injunction to act selflessly in a way that stands outside the ordinary compass of social ordering by contract, in service of a notional solidarity between the parties based on a different theory of justice. Accordingly, I would dismiss this appeal. [171] At para. 58, Kasirer J. agreed with the parties that "the duty to exercise contractual discretionary powers in good faith is well-established in the common law". At para. 59 he identified the underlying question before the Court as to "determine what constraints the duty to exercise discretion in good faith imposes on the holder of that discretion". Wastech argued that this principle requires a consideration of the "reasonableness" of the exercise of discretion. Justice Kasirer disagreed,

commenting at paras. 62-63 that: [62] One may well ask -- as courts and scholars have on occasion -- how the exercise of an apparently unfettered contractual discretion could ever constitute a breach of contract since one could argue that a party, in exercising such a discretionary power, even opportunistically, is merely doing what the other party agreed it could do in the contract (D. Stack, "The Two Standards of Good Faith in Canadian Contract Law" (1999), 62 Sask. L. Rev. 201, at p. 208). The answer can best be traced to the "standard" that underpins and is manifested in the specific legal doctrine requiring that where one party exercises a discretionary power, it must be done in good faith. Expressed as an organizing principle, this standard is that parties must perform their contractual duties, and exercise their contractual rights, honestly and reasonably and not capriciously or arbitrarily (Bhasin, at paras. 63-64). Accordingly, a discretionary power, even if unfettered, is constrained by good faith. To exercise it, for example, capriciously or arbitrarily, is wrongful and constitutes a breach of contract. Even unfettered, the discretionary power will have purposes that reflects the parties' shared interests and expectations, which purposes help identify when an exercise is capricious or arbitrary, to stay with this same example. Like the duty of honest performance

considered in Bhasin and Callow, the duty to exercise discretionary power in good faith places limits on how one can exercise facially unfettered contractual rights. When the good faith duty is violated, the contract has been breached. The question is what constraints this particular duty puts on the exercise of contractual discretion. [63] Stated simply, the duty to exercise contractual discretion in good faith requires the parties to exercise their discretion in a manner consistent with the purposes for which it was granted in the contract, or, in the terminology of the organizing principle in Bhasin, to exercise their discretion reasonably. [Emphasis added.] [172] Justice Kasirer acknowledged that there have been numerous judicial statements to the effect that contractual discretionary powers must be exercised reasonably. With respect to this use of "reasonableness", he explained: [68] I think it best to note at the outset that I do not refer to reasonableness in an administrative law sense. Rather, I agree with Professor McCamus' view that reasonableness for this good faith duty is understood by reference to purpose: ". . . where discretionary powers are conferred by agreement, it is implicitly understood that the powers are to be exercised reasonably. The concept of reasonableness in this context implies a duty to exercise the discretion honestly and in light of the

purposes for which it was conferred" ((2020), at p. 937). [69] Thus, beyond the requirement of honest performance, to determine whether a party failed in its duty to exercise discretionary power in good faith, one must ask the following question: was the exercise of contractual discretion unconnected to the purpose for which the contract granted discretion? If so, the party has not exercised the contractual power in good faith. [70] The touchstone for measuring whether a party has exercised a discretionary power in good faith is the purpose for which the discretion was created. Where discretion is exercised in a manner consonant with the purpose, that exercise may be characterized as reasonable according to the bargain the parties had chosen to put in place. Perforce, the exercise of power consonant with purpose may be thought of as undertaken fairly and in good faith on the parties' own terms. As such, barring issues such as unconscionability not raised in this appeal, that exercise is best understood, as a general matter, to be insulated from judicial review as a matter of fairness. [71] But where the exercise stands outside of the compass set by contractual purpose, the exercise is unreasonable in light of the agreement for which the parties bargained and, as such, it may be thought of as unfair and contrary to the requirements of good faith. [Emphasis added.] [173] The

distinction between the concept of reasonableness in a good faith analysis as compared to its use in administrative law was the subject of comment in B. Kain, Good Faith in Canadian Contract Law (LexisNexis, 2024) at §6.03(1)(a): This focus upon the parties' own purposes differentiates Wastech reasonableness from "reasonableness in an administrative law sense", since the objective bench mark that governs the inquiry is internal to the parties themselves: i.e., their contract. [Footnote omitted.] [174] It should not be surprising that the concept of reasonableness will have different connotations in these different senses. As noted by Justice Binnie in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 at para. 24: Judicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actions taken by government decision makers. It is designed to enforce the rule of law and adherence to the Constitution. Its overall objective is good governance. These public purposes are fundamentally different from those underlying contract and tort cases or causes of action under the Civil Code of Québec, R.S.Q., c. C-1991, and their adjunct remedies, which are primarily designed to right private wrongs with compensation or other relief. [175] That said, as noted by Mr. Kain at §6.03(1)(b) of Good Faith in Canadian Contract Law: While the Wastech

definition of unreasonableness is, no doubt, different from the concept of unreasonableness in public law - and there are important reasons not to conflate the two standards - it would be a mistake to completely ignore their parallels. As in the law of contract, courts have long imposed constraints upon the exercise of statutory discretion through judicial review, including that "any exercise of discretion must accord with the purposes for which it was given", i.e., "with the rationale and purview of the statutory scheme under which it is adopted". This basis of review is, of course, very similar to the one which underpins the Wastech duty to exercise contractual discretion reasonably. An analogous approach to the exercise of discretion is also found in equity, where one of the constraints imposed upon powers given to trustees, executors or appointors is that they be exercised in a manner consistent with their purposes [Footnotes omitted.] [176] Returning to the Wastech decision, Kasirer J. distinguished the notion of contractual "purpose" from the pursuit of self-interest: [73] the role of the courts is not to ask whether the discretion was exercised in a morally opportune or wise fashion from a business perspective. The common law recognizes that "[c]ompetition between businesses regularly involves each business taking steps to promote itself at the expense of the other. . .

. Far from prohibiting such conduct, the common law seeks to encourage and protect it" . As a general matter, good faith should not be used as a pretext for scrutinizing motive (Bhasin, at para. 70). [74] Not only does this deferential approach ensure "some elbow-room for the aggressive pursuit of self-interest" , but it also prevents good faith from veering into "a form of ad hoc judicial moralism or 'palm tree' justice" (Bhasin, at para. 70). In this context, then, courts must only ensure parties have not exercised their discretion in ways unconnected to the purposes for which the contract grants that power. [75] To this end, it is helpful to keep in mind that, generally speaking, a range of outcomes flows from the choices that may be considered a reasonable exercise of discretion when considered in light of the purposes identified by the contract. Some of these choices may properly be thought of as connected to the purposes of the discretion. Others will be demonstrably unconnected to the contemplated purposes. Wherever a party is granted discretion, there may be differing yet legitimate ways in which that party can exercise its power that is itself part of the bargain. In a contractual context, these choices are ascertained principally by reference to the contract, interpreted as a whole -- the first source of justice between the parties. Good faith does not eliminate the

discretion-exercising party's power of choice. Rather, it simply limits the range of legitimate ways in which a discretionary power may be exercised in light of the relevant purposes . Where discretion is exercised for an improper purpose, as against that which was intended by the parties, one that is "ulterior or extraneous" to their intentions, it is exercised in bad faith . [76] With this approach in mind, I stress that what a court considers unreasonable is highly context-specific, and ultimately "depend[s] upon the intention of the parties as disclosed by their contract" . Demonstrating a breach will necessarily centre on an exercise of contractual interpretation. It is in properly interpreting the contract and the purposes for which discretion was granted that the range of good faith behaviour comes into focus and breaches can be identified. [177] Thus, at paras. 86-88: [86] I agree with the parties that the jurisprudence supports a conclusion that the good faith duty at issue does not permit a party to exercise its discretion capriciously or arbitrarily. [87] Although capriciousness and arbitrariness have sometimes been referred to independently of improper purpose, I agree with the Supreme Court in Telefónica that a capricious or arbitrary exercise of a discretionary power is an example of such a power being exercised contrary to that standard. When seeking to

demonstrate that discretion was exercised capriciously or arbitrarily, one necessarily considers contractual purposes by showing that discretion was exercised in a manner unconnected to the underlying contractual purposes for which the power was conferred. [88] In sum, then, the duty to exercise discretion in good faith will be breached where the exercise of discretion is unreasonable, in the sense that it is unconnected to the purposes for which the discretion was granted. This will notably be the case where the exercise of discretion is capricious or arbitrary in light of those purposes because that exercise has fallen outside the range of behaviour contemplated by the parties. The fact that the exercise substantially nullifies or eviscerates the fundamental contractual benefit may be relevant but is not a necessary pre-requisite to establishing a breach. [Emphasis added.] [178] As noted above, both Bhasin and Callow questioned the extent to which a duty to exercise a contractual discretion in good faith could apply where a contract appeared on its face to give a party unfettered discretion. In Wastech, however, Kasirer J. confirmed that the duty applied generally in contract law: [91] In my view, it is appropriate to recognize the duty to exercise discretion in good faith as a general doctrine of contract law. Like the duty of honest performance, it need not find its source

in an implied term in the contract, but rather it operates in every contract irrespective of the intentions of the parties (see Bhasin, at para. 74). This brings conceptual clarity to the law of good faith by analyzing the duty to exercise discretion in good faith in line with the Bhasin duty. [92] Further, recognizing this general duty interferes very little with freedom of contract for two reasons. First, just as parties will rarely expect that their contract permits dishonest performance (Bhasin, at para. 76), contracting parties rarely if ever expect discretion granted by the contract to be exercised in a manner unconnected to the purposes for which it was conferred. For example, on the facts of this case, a duty on Metro to exercise its discretion in good faith was necessary to give business efficacy to the Contract. As the arbitrator rightly observed, absent a duty of good faith constraining the exercise of Metro's discretion, "Metro theoretically ha[d] the discretion to reduce the volume of waste directed to the [Cache Creek Landfill] to zero" (A.F., para. 94). It is absurd to think the parties intended for Metro to have such untrammelled power given that it would have left Wastech subject to Metro's "uninhibited whim" (The "Product Star", at p. 404, per Leggatt L.J.). Indeed, it is difficult to imagine any party wishing to confer such untrammelled power on its

contracting partner. For this reason, when contracting parties confer a discretionary power, even without any apparent constraining criteria or conditions, courts have long recognized that the "natural inference" is that they intend some minimum constraints on the exercise of the discretion (Sales, at p. 387; see also Swan, Adamski and Na, at §8.304; Bhasin, at para. 45). In my view, those minimum constraints include the expectation that the parties will not exercise their discretion in a manner unconnected to the purposes for which it was granted, for example in a capricious or arbitrary manner. Given that parties will very often expect minimum constraints of this nature, recognizing that these constraints apply to all contracts by virtue of the duty to exercise discretionary power in good faith interferes little with their freedom of contract. [94] Overall, then, like the duty of honest performance, the duty to exercise contractual discretion in good faith is not an implied term, but a general doctrine of contract law that operates irrespective of the intentions of the parties (Bhasin, at para. 74). This places the two duties on the same footing, and conforms to the general assumption that parties do not intend discretion to be completely unconstrained (see Bhasin, at para. 45). Just like the duty of honest performance, the duty to exercise contractual discretion in good

faith, as described herein, should be understood to be obligatory in all contracts. Parties who provide for discretionary power cannot contract out of the implied undertaking that the power will be exercised in good faith, i.e., in light of the purposes for which it was conferred. This holding will impinge on freedom of contract but only in those rare cases in which parties seek to authorize the exercise of contractual discretion in a manner unconnected with its underlying purposes or otherwise immunize such conduct from judicial review. [Emphasis added.] [179] With respect to the application of this duty of good faith in cases in which discretion seems to be unfettered, Mr. Kain proposed at §6.03(2)(b)(ii) of his text the following approach: It is suggested that the preferable approach to defining contractual discretion is not to attempt a distinction between true "discretion" and "absolute rights", but rather to accept that: (1) all contractual rights are subject to the discretion duty; and (2) the closer the right approximates an absolute entitlement (like, e.g., the "without cause" termination right in Callow), the more it should be regarded as relating to matters that are not readily susceptible of objective measurement (such that the range of reasonable outcomes is correspondingly increased). After all, the purpose of granting a party something like a "without cause"

termination right is to give them a largely unrestricted freedom to make decisions for reasons of their own choosing (or even for no reasons). The factors that may influence a party in making these determinations are inherently subjective. Therefore, consistent with the Wastech framework, the range of reasonable outcomes that will flow from the exercise of such rights can be expected to be extremely large. The application of the discretion duty to provisions of this kind would not be excluded entirely, but as a practical matter, the circumstances in which it would play a prominent role are likely to remain rare, particularly since many cases involving the improper exercise of contractual rights will already engage one of the other situational duties of good faith (as Callow recognized of the duty of honest performance, and Bhasin recognized of the evasion duty). This approach would preserve the Wastech framework, while eliminating a source of unnecessary legal confusion in a way that gives effect to the basic contextualism which underpins the organizing principle of good faith. [Footnotes omitted.] [180] At §6.03(2)(a) of his text, Mr. Kain noted what was said in Wastech as well as the subsequent comments of Justice N. Smith in Eisler v. Connor, Clark & Lunn Financial Group Ltd., 2021 BCSC 1280 at para. 64, and proposed the following analytical framework for cases in which a

duty of good faith in exercising contractual discretion was in issue: a) Has a party made a decision that could be classified as an exercise of "discretion" under its contract with the other party? b) Did the contract grant that discretion for particular purposes? c) Did the manner in which the party exercised the discretion fall outside the range of choices reasonably connected to those purposes? Analysis Appropriateness for Summary Trial [181] I am satisfied that this matter is appropriate for summary trial. The action has been outstanding for multiple years. Both parties have availed themselves of discovery mechanisms. I was not advised of any specific discovery requests that had not been responded to. There were few conflicts in the evidence and none of substance. There was no suggestion that any key witness was not available to the parties. While I have concerns about some of the evidence as to matters described in the SHA's incident reports, I do not see that evidence as necessary in order to establish the rights in issue. [182] There was a general suggestion that there might be further discovery arising from the defendants' amended response to civil claim which was filed in June 2024. However, there was no evidence before me of specific discovery requests that were made and not responded to, and there were several months between the pleading amendment and the filing of

the summary trial application for the defendants to pursue any necessary discovery. As I have noted above, there is an onus on a party responding to a summary trial application to have done everything they can to prepare for the summary trial. Here, there was adequate notice of this application, and the onus was on the defendants to be ready for it. [183] In my view, I am able to find the facts necessary to decide this application, and it would not be appropriate not to proceed with summary trial just on the possibility that something else might come out if there was a traditional trial. In my view, the facts and legal issues are ripe for determination, and it would not be unjust to decide this matter by way of a summary trial. Ongoing Invoices [184] The defendants argue that the ongoing issuance of invoices created a new ongoing agreement for their use of SHA property for their businesses. The argument was advanced primarily on the basis that the invoices created an offer, and the payment reflected acceptance. The argument could also have been made on the basis of estoppel. [185] There are many issues with this argument. The invoices that were issued were all issued part-way through a month, after it had become clear that the defendants were not imminently moving out. From the beginning, the invoices have been clear that they are only for one month, and only for the particular

calendar month in which they were issued. The invoices on their terms at best create a license that expires within two to three weeks. [186] The defendants argue that a new agreement has been created, but nothing in their submissions identifies a term for this new agreement (other than the series of partial-month licenses that one might conclude were granted part-way through each month). Nor could the invoices sent out at the middle of each month be interpreted as somehow providing an assurance that there was a new long-term agreement in place. [187] In my view, the defendants' position with respect to these invoices issued from the fall of 2021 to date is without merit. I come to this conclusion without reference to the reservation of rights language, as I do not see that language as making a material difference. Promissory Estoppel [188] The law requires that, in order to found a promissory estoppel, there be (a) a representation or assurance made, on the basis of which the claimant expects that he will enjoy some right or benefit over property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go

back on her word. [189] In my view, there is no representation or assurance established on the facts of this case. There is simply nothing specific identified in the evidence to suggest that there were representations or assurances of any rights above and beyond what was set out in the license agreements the parties made from time to time. The only specific act of the SHA referenced by Mr. Cadwallader was the SHA's approval of work performed on Building 39 by Trites Marine in 2002 and 2003. References to other work on that building were vague as to both nature and timing. [190] In my view, even if it could be said that the SHA allowing work to be done in 2002 and 2003 gave rise to some sort of assurance, that assurance could not be expected to be effective some 20 years later. [191] In any event, it seems clear from the materials that the terms of the various licenses were longer earlier on - for example, the Building 24 license granted in 2014 was for a five-year term. It would make sense for the defendants, if they were investing funds in adapting the building for their use, to negotiate for a term reflecting a longer commitment within which they could adequately benefit from the investment they were making. They appear to have done so. The most recent license was for a shorter, two-year term expiring in November 2021. [192] Nor am I satisfied that there has been any

detriment flowing from any reliance. The defendants had the use of Building 24 for many years, so even if they performed work on that building with a view to recovering their investment over time, they appear to have done so. [193] Finally, the law requires that a remedy for proprietary estoppel reflect the minimum relief necessary to satisfy the equity in the claimant's favour. In this case, even if I had concluded that a proprietary estoppel had been established, it seems clear to me that the appropriate remedy would not have been an indefinite right to continue in occupation. Rather, the available remedy would have been some amount of time to allow the defendants to find a new location for their businesses. In this case, the summary trial application was heard more than 3½ years after the defendants were given notice that their rights would cease on September 30, 2021. They have been able to operate from the Steveston Harbour for those 3½ years knowing that the court action was working its way through the system. [194] In my view, even if the defendants were able to establish an equity, that equity has long since been satisfied. Rather, I would draw the same conclusion as drawn by Young J. in Medanic - that the fact of the defendants using the SHA's property for a long time does not mean they can assert a right to use the SHA's property in perpetuity. Judicial Review [195] I

note that my analysis of both the judicial review issues and the duty of good faith focuses on the licenses because as I read the moorage agreements, they are framework agreements that do not contain a specific term or fee. [196] In my view it is useful to begin with somewhat of a chronology with respect to both the licenses and the government policy documents said to impact upon the SHA's decision-making. Important dates include the following: a) September 2019 - DFO-Coast Guard Reconciliation Strategy; b) October 27, 2019 - License of Occupancy issued with respect to Building 24B for the time period beginning December 1, 2019, and ending November 30, 2021; c) July 24 and September 22, 2020 - License of Occupancy issued with respect to X and W floats for time period beginning October 1, 2020, and ending September 30, 2022; d) September 22, 2020 - License of Occupancy issued with respect to Building 39, locker 3903AA for time period beginning October 1, 2020, and ending September 30, 2021; e) June 21, 2021 - UNDRIPA enacted; f) July 20, 2021 - Letter from lawyers for the SHA regarding termination of licenses and removal of property as of September 30, 2021; g) February 2022 - this action commenced; and h) 2023 - Action Plan adopted pursuant to UNDRIPA. [197] In light of the timing of events, it is my view that the 2023 Action Plan cannot be said either to inform the contractual

purposes with respect to contracts made in 2019 and 2020, or to be something that should have been considered by the SHA when making the decisions it made in July 2021. [198] The defendants argue that the decision of the SHA to terminate or not renew their respective license and occupancy agreements is subject to judicial review. [199] The parties agree that if the decisions are subject to judicial review, that would be a matter for the Federal Court. I note in that regard that the Federal Court's exclusive jurisdiction is reflected in s. 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, which states: (1) Subject to section 28, the Federal Court has exclusive original jurisdiction: (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. [200] The SHA argues that Aboriginal rights are collective rights and can only be advanced by a First Nation. As I read Grauer J.'s reasons in MacDonald, whether that is the case may well depend upon the nature of the rights being

asserted. In this case, the defendants are not asserting that the Kwakiutl Fort Rupert Band has a claim of Aboriginal rights giving rise to a duty to consult or a right to deal with lands at Steveston Harbour. Rather, the claim is that as an Indigenous business, the Crown and its delegates are subject to an obligation to give due consideration to questions of reconciliation and of any rights recognized in UNDRIPA, even in the context of what may on their face appear to be commercial relationships. [201] As noted above, the DFO-Coast Guard Reconciliation Strategy - which has been in place since before the licenses in issue were agreed to - includes objectives that apply to Indigenous people generally, including reducing socio-economic gaps and advancing the "capacity" of Indigenous people "to participate in a variety of economic opportunities". These specific goals are not on their face necessarily tied to territorially based Aboriginal rights. [202] The claims that the SHA should have been influenced by these goals in its dealings with the defendants seem to me to be fundamentally public law issues, of the sort that might form a basis for judicial review. At the same time, they are very general in nature and may not bee seen as justiciable. Given, however, that the Federal Court has exclusive jurisdiction over any such judicial review, I do not think it would be appropriate for

me to comment further on this issue. All I can say is that it is not plain and obvious to me that the positions advanced are entirely without merit. Nor would it be appropriate for me to comment on whether the Federal Court might entertain judicial review this long after the decision in issue. Duty of Good Faith [203] I now turn to consider issues surrounding the contractual duty of the good faith. In dealing with this issue, I will use the analytical framework proposed in the Kain text. [204] The first question is whether a party has made a decision that could be classified as an exercise of discretion under the contract. In my view, the decisions of the SHA to terminate two of the licenses and the decision not to renew the other are decisions made as to matters as to which the SHA is given discretion under the contracts. [205] The second question is whether the contract granted that discretion for particular purposes. A starting point for that consideration will be the wording of the contract provisions governing termination and non-renewal. With respect to termination, the relevant provision states: That this License may be cancelled at any time by either party: (a) by the Licensee giving thirty days (30) notice in writing and delivered to or mailed addressed to: [the SHA office] (b) by the [SHA] giving thirty days (30) notice in writing and delivered to or mailed to the

Licensee, or mailed addressed to the last known place of business or office of the Licensee [Emphasis added.] [206] With respect to the non-renewal of licenses, the relevant provision states: If at the expiration of the term of this License, the Licensee shall desire a renewal for a further term, the Licensee shall at least two months before such expiration give notice in writing of such desire to the [SHA]. Renewals may be granted by the [SHA] if the Licensee has met all the terms and conditions contained in this License to the full satisfaction of the [SHA]. [Emphasis added.] [207] The cancellation provision in particular is, on its face, an unfettered termination right. Its use of the words "may be cancelled at any time" makes that clear. The renewal provision also uses the words "may be granted", although it also references the licensee having met "all the terms and conditions to the full satisfaction" of the SHA. [208] In this case, it was clear that Ridge had not met the terms and conditions of its licenses. With respect to the satisfaction of the SHA, it is clear that not only was the SHA not fully satisfied, it was dissatisfied to the extent that it was issuing warning letters. [209] Wastech directs the court to consider contractual purposes that may be found in the terms of the contract itself. In my view, the termination and renewal provisions are the key relevant

provisions, along with the payment provision (General Condition 4), which requires that payment be made "monthly in advance". [210] I am of the view as well that regard can be had to the SHA's policies, including the provisions of Operations Directive #6 which provides that users who "accrue an unreasonable amount of debt" shall be "subject to cancellation" of their privileges. [211] The more difficult question is whether the purpose is also informed by the provisions I have quoted above of the DFO-Coast Guard Reconciliation Strategy. The goals that I have noted as arguably relevant (i.e. reducing socio-economic gaps and advancing the "capacity" of Indigenous people "to participate in a variety of economic opportunities") are expressed in a very general manner. They are, in effect, high-level public policy goals. In my view, to the extent they are justiciable, they are the type of goals more appropriately evaluated in the context of judicial review. [212] Notwithstanding this view, for purposes of analysis, I will consider those purposes as well in the context of the third part of the analysis. [213] The third question to consider is whether the manner in which the SHA exercised its discretion to terminate or not renew the licenses falls outside the range of choices reasonably connected to those purposes. In considering this question, I note the tension between the comments of

both Kasirer J. and Brown J. in Callow about the appropriateness of a court reviewing the good faith of the exercise of an unfettered termination right. At the same time, it is clear from Wastech that the duty of good faith continues to operate at least to some degree even with respect to such terms. [214] In my view, there is no basis on the evidence to conclude that the decision of the SHA to terminate or not renew the licenses in this case was arbitrary or capricious. There is no allegation of lies or deception. There is no allegation that the decision was made in pursuit of some objective not connected to the agreements. This is a case in which the record establishes long-standing issues with prompt payment, the SHA having terminated the rights of several other users with payment issues, advance notice having been given to either ensure prompt payment or be at risk of termination, and finally termination. [215] This issue then turns on whether the exercise of contractual discretion here can be said to be unreasonable because it was done in a manner that is not consistent with the contractual purposes. In my view, it was not. Rather, the exercise of the contractual power is clearly tied in the facts to the contractual purpose of ensuring prompt payment of the SHA's charges. [216] In my view, the contractual right to terminate or not renew the licenses in this case is one

that is unfettered on its face, and it was exercised for a purpose that is contemplated by the contract. Even if it can be said that there is another contractual purpose, flowing from the Reconciliation Strategy, of encouraging Indigenous businesses, it is my view that where the exercise of the power is clearly tied to one undoubted contractual purpose, the fact that it may not be justified by another contractual purpose does not result in a finding of a lack of good faith. [217] The decision that the SHA made was within the range of reasonable outcomes in this case. Remedy [218] In my view, apart from any determination that might ultimately come on judicial review, the defendants' licenses are no longer in effect. [219] As a result, the defendants have no further rights to use SHA property, and the case is effectively indistinguishable from Medanic. The corporate defendants are continuing to locate their vessels and equipment on the SHA's property, and their staff continues to access the SHA's property. The SHA has established that those actions constitute trespass. [220] I turn to questions of nuisance. The SHA relied on multiple bases for its allegations of nuisance. Its allegations that the corporate defendants continued to leave their vessels and equipment at the Steveston Harbour without SHA permission were generally acknowledged - subject to such permission as may be

found in the one-month licenses issued part-way through each month. That, in my view, is sufficient to establish a nuisance. I accept that it is a substantial interference with the SHA's use and enjoyment of the harbour and its ability to make use of the harbour. [221] There were also allegations of damage to SHA property, the dumping of mattresses and oil spills. There were issues with some of the evidence tendered, given that this is a summary trial and hearsay evidence is not permitted. I see the evidence with respect to the mattresses, for example, as evidence that should have been tendered through a witness with actual knowledge. The evidence with respect to the incident on March 18, 2024, is more in keeping with trial evidence, as Mr. Jones reports on what is said to be an admission made by the responsible Cuda official at the scene, and the only response from Cuda is Mr. Cadwallader's suggestion that he "understood that the matter was closed". [222] In my view, given my conclusion that nuisance is established by the continued and substantial interference with the SHA's operations arising from the ongoing presence of the corporate defendants' vessels and equipment at the harbour, there is no need for me to draw any conclusions about these specific incidents. [223] For the same reasons as set out in Medanic, I conclude that the granting of a declaration and an injunction

is the appropriate remedy in all of the circumstances. [224] I note that the SHA has claimed not only against the corporate defendants but also against Mr. Cadwallader. I was not provided specific authorities about when it is appropriate to claim against a principal of corporate defendants in respect of claims in tort. The evidence did not point to any specific acts of Mr. Cadwallader; rather, the claims against him appear to be premised on the assumption that as the general manager of the company, he should be presumed to have participated in the torts of trespass and nuisance. In my view, that is not an adequate basis to grant injunctive relief against him in his personal capacity. [225] I have concluded that I cannot dismiss out of hand the possibility that the defendants might succeed in a judicial review application. They will of course first have to obtain an extension of time. If they bring a judicial review application and are successful, then that will significantly impact the claims of trespass and nuisance. It is obviously concerning that the defendants did not bring such application prior to the summary trial hearing. I do not know if they have since brought such an application. [226] In my view, it is appropriate that I stay the effect of the declaration and injunction that would otherwise be granted for a period of six months. That stay serves two purposes: a) it

provides the defendants with an opportunity to seek leave to bring their judicial review; and b) it gives the defendants an opportunity, knowing the result of this action, to seek another location for their businesses. [227] The defendants have liberty to apply to extend the stay in the event the Federal Court grants them leave to bring a judicial review application despite the delay. [228] More generally, I would provide that the parties are at liberty to apply for further directions with respect to implementation of the injunction I have granted. If the parties are unable to resolve questions of costs, they may make application with respect to that issue as well. "Veenstra J."