Use of CP railway takes priority over gardens, judge rules
A judge has refused to grant the City of Vancouver a court injunction to stop CP Rail from using the Arbutus corridor for railway operations.
In dismissing the application, B.C. Supreme Court Chief Justice Christopher Hinkson noted that gardeners, pedestrians and cyclists had no right to use the corridor.
The city, which has been locked in fruitless talks to buy the corridor from CP, filed the injunction after the firm began dismantling gardens along the roughly nine-kilometre line last year.
City lawyers argued that the company, which now wants to use the corridor to store railway cars, had effectively abandoned the line and it no longer fell under federal jurisdiction. They argued that the line was unfit to carry trains and that there would be substantial and expensive repairs needed, not to mention safety concerns.
CP Rail lawyers responded that the company had never discontinued operations on the line and had never abandoned it for use as a railway. They argued that those who are now using the corridor — including the gardeners — are trespassers.
The city said any demolition or clearing of the gardens was against an official community development plan, but the judge said he was unable to accept that clearing the corridor is contrary to that plan. The judge said the city had failed to make a serious question to be tried regarding any preservation of the gardens.
He noted that CP Rail had made an undertaking that it would get the appropriate federal approvals for any future use of the corridor: “In light of this undertaking, I find that the city will suffer no irreparable harm if the trains do not run until the required statutory approval is forthcoming.”
In contrast, CP Rail would suffer irreparable harm if it is unable to do the preparation work to resume using the corridor before the approvals, added the judge.
Mayor Gregor Robertson told reporters he was disappointed by the court ruling and said the city “will continue to use all of our tools to ensure the federal government and the regulators address this issue.”
He said: “We do have ongoing safety concerns on the corridor, and we want to be sure the Canadian Transportation Agency and the minister of transportation understand our opposition to the reactivation of the Arbutus corridor. “
Martin Cej, a spokesman for CP Rail, said he applauded the decision, but added the company didn’t wish to rush into anything at this point.
He emphasized the judge’s point that the gardeners have no right to be using the corridor.
Cej said the company will take a couple of weeks to review its next steps and will keep in mind the sensibilities of the residents and advise them in advance of any actions the firm plans to take.
Last August the company removed about 150 metres worth of gardens along the corridor, sparking a wave of public protest. The company agreed to stop any further destruction of the gardens pending the outcome of the court case.