City turns to courts again in rail row
Mayor says lawsuit necessary to ensure disused tracks become a ‘greenway’
Vancouver is seeking both interim and permanent injunctions against CP Rail to prevent it from reactivating its Arbutus corridor rail tracks while the city challenges the company’s constitutional right to use the spur line, the city said Friday.
The two-stage civil suit against CP includes a “direct constitutional challenge” to prevent the railway from ever running rail cars on it again.
A second part seeks an interlocutory or temporary injunction to halt the company’s ongoing efforts to clear the line of community gardens as it prepares to reactivate the line, including the use of herbicides.
This is the second time the city has taken CP to court over the future of the Arbutus corridor, a century-old line that runs from False Creek to the Fraser River. In 2006, the Supreme Court of Canada sided with the city’s argument that it has the right to decide zoning and future non-railway uses along the line. But the court also held that CP continues to have the right to use the line for purposes allowed under the Railway Act of Canada.
But after more than a decade in disuse, the question the city wants the courts to answer now is whether CP has given up its right to operate the corridor as a rail line, especially since the company continues to seek to develop the land or sell it to the city for development purposes.
The city’s decision to go to court comes two weeks after CP and the city broke off negotiations over a potential sale of the 11-kilometre line. The city had offered $20 million, based on the current zoning of the land as a railway, but CP said the land is worth as much as $400 million, based on the current zoning of surrounding properties. It had offered the line for less than that amount, but would not say publicly what it was asking.
Mayor Gregor Robertson said the city needed to protect the corridor as a greenway and that CP had been unreasonable in trying to mediate the dispute.
“Today’s action in B.C. Supreme Court is a reflection of the city’s longstanding commitment to ensuring the corridor is protected as a greenway for the benefit of all Vancouver residents,” he said in a statement.
“The refusal by CP to reach a reasonable agreement on the future of the Arbutus corridor is tremendously disappointing and frustrating, but the city will continue to responsibly advocate for citizens’ interests and strongly oppose the reactivation of the rail line. The city will not do a disservice to taxpayers by reacting to threats and bullying on the corridor by spending tens of millions of dollars more than the land is worth.”
He told reporters later the city had hired well-known lawyer Joseph Arvay to handle the action, which was officially filed in B.C. Supreme Court on Friday morning. Arvay was a member of the city’s legal team that previously took CP to court.
Earlier this year, CP began to make public statements about reactivating the railway for its permitted use.
It is currently restoring the entire right-of-way, parts of which have been infringed upon by community gardeners.
But Robertson insisted the railway’s rights under the 2006 decision should now be challenged since it has not maintained the line.
“The railway has been inactive for a dozen years now, and the work that will be done through these legal arguments will be in advancing the city’s case that we don’t want to see destruction along that corridor and that the long-term interests should prevail that this is a greenway,” he said.
“We want that ( clearing) work stopped while the courts are able to rule on the bigger case related to the constitutional challenge.”
Breanne Feigel, a spokeswoman for CP, said the company was reviewing the city’s statement and was withholding comment.
The railway had already started clearing unauthorized gardens from its right of way, but halted the work in late August to allow for negotiations.
After the two sides met and failed to come to an agreement on Sept. 12, the railway announced it would resume plans to return the corridor to an operating rail line.
The city has rejected that as a possible use, noting that there is no economic activity along the line that would justify its return to service.
CP has long wanted to redevelop portions of the valuable right-of-way, and had proposed some residential and commercial development. Vancouver, however, created a special official community plan that considers the railway spur as only being available as a greenway, for pedestrian and biking purposes, light rail and public transportation, or for railway services.
As recently as a week ago, Robertson had told media that he didn’t see a civil action against CP as being productive. But outside City Hall on Friday he said he now felt differently.
“In this case, what has emerged is an opportunity to pursue a constitutional challenge and to pursue injunctions in the meantime to protect that land,” he said.