Judge reserves decision in ski hill/golf course battle
SYDNEY — A Nova Scotia Supreme Court judge has reserved decision, without day, on whether to grant an injunction application by a Cape Breton ski hill to halt the sale of a nearby golf course.
The Cape Breton Ski Club, which operates Ski Ben Eoin, filed its application claiming it has first refusal rights to lands owned by Ben Eoin Golf Ltd., which operates the 18hole, The Lakes Golf Course.
In February, shareholders of the golf club voted to sell the operation to Ben Eoin Development Group in a no cash sale with the development group assuming all liabilities and assets.
A day after the vote, the ski club served notice it had first refusal rights and wanted 60 days in which to present the golf club with an alternate proposal.
The result was a four-day hearing before Justice Frank Edwards who heard testimony from five witnesses.
Edwards must now decide whether there is a serious legal issue that must now proceed to a full trial.
In her closing address to the court Wednesday, lawyer Michelle Kelly, who represents the ski hill, said the court does not need to decide whether there is a first refusal right but whether there is enough evidence to grant an injunction and allow the ski club to develop another offer.
Much of the testimony focused on the drafting of a memorandum of understanding (MOU) between the ski hill and the golf course and a subsequent 50-page lease agreement between the two groups. The lease covers lands owned by the ski hill and used by the golf course.
Ski hill officials were the only ones to sign the MOU but both sides signed the lease.
Kelly argued the MOU was a commitment between the two parties while lawyers for the golf course and development group suggested the MOU was simply a framework for co-operation from which the lease was a product.
Kelly said golf officials used the MOU to assure potential funding partners that the two sides were cooperating with each other.
“The promises made need to be upheld. The Cape Breton Ski Club simply wants the opportunity to be heard,” said Kelly, adding her clients would be harmed in not being able to make an offer.
Lawyer Chris Conohan, representing the golf course, said when it comes to land transactions, such deals need to be put in writing and there is no written document showing the ski hill has first refusal rights.
Conohan said it was incumbent on the ski hill to have any such deal registered with the provincial land registry.
He also questioned why ski hill
officials came forward claiming first rights only after the vote for sale was approved. He said the hill representatives knew as early as July 2018 of the intentions of the development group and had attended two meetings of golf shareholders during which the sale was discussed.
He cautioned that the future of the ski hill’s operations is not in jeopardy while the future of golf course is in jeopardy, given its nearly $5 million liabilities.
In his final summation, lawyer Tony Mozvik, representing the development
group, said when parties wish to bind themselves they form contracts, noting the MOU talks mainly about the ski hill.
He also questioned why ski hill officials only showed up at the eleventh hour, holding out a document claiming first refusal which he described as mean-spirited.
“If the ski hill was interested in doing business with the development group then they should have been upfront,” he said, further describing the actions of the ski group as “sneaky.”
The development group partners include Rodney Colbourne, president/secretary, and directors Mike Kenny, Troy Wilson, Steve MacDougall, Siva Thanamayooran and Glen Brann.
It is the group’s vision to create a four-season recreation destination featuring a golf course, ski hill, marina, cabins and a variety of other amenities.
The group has already purchased land for housing units overlooking the course for $445,000, the land on which sits the Ben Eoin Yacht Club and Marina for $150,000 and a former hotel (The Birches) for $675,000.
The former hotel is now undergoing extensive renovations and will become a clubhouse for the course along with providing an restaurant, locker facilities and other features.
The ski hill, golf course and marina are all located in Ben Eoin located some 20 minutes west of Sydney on Route 4.