A man walks past a community garden along the CP Rail tracks near West 6th Avenue and Cypress Street in Vancouver on July 3, 2014.Darryl Dyck/The Globe and Mail
The City of Vancouver plans to take CP Rail to court in what's sure to be another epic battle over a prized piece of CPR-owned land that has sat unused by the railway for over a decade.This time, using an argument sure to be of interest to other Canadian cities with unused track within their boundaries, lawyer Joe Arvay is arguing that CPR effectively discontinued use of the corridor as a railway and so has no legal right to reactivate it.
The 11-kilometre Arbutus Corridor line "has long since ceased to be a railway in fact and law," says the statement of claim filed by the city in B.C. Supreme Court on Friday by Mr. Arvay, a private-practice lawyer acting for the city.
The claim also says CPR notified the federal government, as required by the Canada Transportation Act, in 1999 and 2003 that it planned to discontinue the line.
But the rail company never then made an offer to sell the line back to government or filed a plan for continued use – important steps in the process that the act also requires, according to the statement.
The statement also says that CPR's recent efforts to clear out community gardens near the track are not a serious attempt to reactivate the line for rail use, but just a pressure tactic to get a high price.
"Such a purpose is manifestly contrary" to the city's official city plan and the Vancouver Charter, Mr. Arvay argues.
The city and CPR have already been through one six-year legal war that cost the city $5-million in legal fees. That ended in 2006, when the Supreme Court of Canada ruled that the city had the legal right to rezone the land as a transportation corridor. The court said, at the time, that CPR still had the right to use the corridor as a rail line.
This new lawsuit challenges even that right.
The case comes within weeks of a civic election and has spurred a disagreement among mayoral candidates about whether Mayor Gregor Robertson has handled the issue the right way.
Non-Partisan Association mayoral candidate Kirk LaPointe said the last-ditch lawsuit is just a sign of desperation by the Vision Vancouver council in advance of the Nov. 15 election.
"This is yet another legal battle between the City and a stakeholder in Vancouver that diverts time and tax dollars away from citizens, the Aquarium, community centres, a railway company," said a statement from Mr. LaPointe in a news release. "How many more expensive court cases will there be?"
But the case is also likely to be watched by cities elsewhere.
"This could be a very important case for cities across Canada," said Mr. Robertson, as he talked about why the city had launched itself into a lawsuit once again. "It's unfortunate we have to take this step … but we won't be bullied. The city is seeking to ensure that citizens' interests are represented."
He said the city will be seeking injunctions to halt any clearance work or herbicide spraying, a violation of city laws, while the case is pending.
The city and CPR started tussling in 1999 when CPR, seeing that it was not going to be using the line much longer, started exploring development options for the land. It also sold one small lot near Granville Island to Starbucks for an outlet.
The city, realizing that some sections of track were vulnerable to being sold off in the same piecemeal fashion, moved aggressively to have the whole line rezoned as a transportation corridor in 2000. CPR then began a legal battle to get that zoning overturned, but ultimately lost in 2006.
Throughout, CPR and the city have talked about having the city buy the corridor land outright, but have never been able to agree on a price.
The issue lay dormant until early May of this year, when CPR began advising people who had created community gardens along the line over the past two decades that they needed to remove any plants and structures.
It emerged that new negotiations had resulted in the two sides stalling again over price. CPR was asking for $100-million, based on the high values of residential land on that side of the city. The city was offering $20-million, saying it was comparable to what Richmond paid, per kilometre, in 2010 when it acquired a section of CPR line to use as a greenway.
The rail company sent out crews to tear some of the gardens out in August, then stopped while the city and CPR tried to negotiate. But talks broke off again two weeks ago, with CPR saying the city was offering an unreasonably low price.
Mr. Robertson confirmed that city negotiators offered CPR a share of any future profits if a future council decided to develop any of the land but CPR turned that down.
The challenge to CPR is also likely to engender some sympathy from other cities that have been struggling with rail companies. Many mayors have expressed frustration with companies' seeming lack of interest in community concerns.
When a train derailed and a bridge partly collapsed during the floods in Calgary two years ago, Mayor Naheed Nenshi was furious with CPR.
"How is it we don't have regulatory authority over this, but it's my guys down there risking their lives to fix it?" the mayor said at the time.
Saskatoon Mayor Don Atchison said CP Rail's trains often pass through his city at rush hour, tying up traffic. He said that's not only an inconvenience to citizens, but a concern for first responders.
"All I know is across Canada, from talking to many of the mayors, that the rail lines going through their communities is a concern to them," he said.
Frances Bula