March 23, 2016
Almost 9 months have passed since the Skaha Lake Park waterslide proposal first raised its ugly head, and almost 6 months since we filed our Civil Claim in BC Supreme Court challenging the City’s authority to approve this agreement. What has been going on? Why haven’t we heard more? Why haven’t we been campaigning more aggressively? Does the delay harm us? Can we still win the battle to save Skaha Park? We will answer these questions. But we want to state up front that despite the long delay we have been busy in many ways, always focussed on winning; that our lawyer is confident we have a strong case; and that the SSP Advisory Group is more confident than ever that we can and will prevent the commercial development of Skaha Park.
The legal world operates differently for government affairs than it does for private sector. The process has been a learning experience for us.
BC Supreme Court rules state that the defendant named in a civil claim has 3 weeks to respond. Our lawyer, an expert in municipal law, has introduced us to a different reality. Civil claims against government bodies often take much longer, and this is tolerated by the courts, which are (understandably) reluctant to rule against elected bodies without being certain they have been clearly heard. Beyond the statement of claim, there are many steps to the claim process, including the defendant’s response to the claim, filing of documents for discovery, and finally, the trial. We assumed that this might take a while, but, like you, we expected there would be steady progress toward resolution.
The City has not yet filed its response. Our lawyer continues to reassure us that this is not a problem. There may be many reasons, none of which put us at a disadvantage. Meanwhile, the Advisory Group and several of our loyal volunteers have clocked hundreds of person-hours in the Penticton museum archives, where we have uncovered a wealth of locally available information that will support our case in discovery.
The path to success isn’t always linear or simple
Our primary goal is to prevent implementation of the waterpark agreement that was approved by the City in a blatantly undemocratic process. The civil claim was our only recourse at the time. The passage of time creates a changing reality for both the City and the developer. From this, alternative steps, not initially considered by the City or developer, may well emerge that could achieve our goal without compromise at significantly less cost to taxpayers and to our supporters. While we will remain open to such potential developments, we will not let up in pursuing and preparing for the possibility of discovery and a trial.
Time has always been on our side.
As long as the civil claim is before the Court, the waterpark agreement is stalled and the City operates under a cloud of public mistrust, resentment and even contempt. This cannot be a good thing for either the developer or the City. While we have no wish to delay a resolution to this dispute, if the City chooses to delay the process, we will be patient but ever resourceful and determined
Our position is strong
First, our legal case has a strong underpinning that defines the many ways in which the City has made a commitment to the developer that exceeds its authority or violates its own rules and bylaws. In support of this, our research has identified historical facts that strongly reinforce our claim. Second, the petition signed by over 5200 residents and 3200 non-residents makes it clear to the City that the movement to save Skaha Park from commercialization represents dominant public opinion. This fact clearly has not yet led them to re consider their role as public servants, but it certainly must give them cause to pause and reflect on their chances of getting re-elected. They must also be aware that a City that has lost the trust of its electors is not an attractive place to invest. Surely, as this reality becomes apparent, it must motivate them to find an off ramp.
We need to show our strength: Strength in numbers.
Don’t let the relatively quiet time over winter months lead to false conclusions that we are weak or have lost motivation. One hugely disappointing challenge we faced in reaching out to our community was the refusals by all of the shopping malls to allow us to set up a booth to meet the public. This includes Cherry Lane, Walmart, Safeway and Superstore. Without these venues, it was very difficult to reach out to our public, and easy for observers to think we’re weak. We owe deep gratitude to David Prystay for allowing us to sell memberships at the Lakeside last November; we were inundated with supporters who happily joined us.
But now our most important objective must be to translate the huge support for saving Skaha Park that we know exists into paid memberships. The reason is simple, but extremely important: Petition signatures are one thing, but Society members are a much firmer indicator of our depth of support. And it is this measure of support that will both weigh heavily in a judicial decision, and also reinforce to our Council the hard reality they face.
We know the support is there. Members can join on line or by completing a membership form. Many of our supporters prefer the latter, and as well, the personal contact makes a big difference in catching attention. So, the Advisory Group has placed a top priority in organizing a membership blitz and in creating the events and other opportunities to make it happen. We now have 1354. Knowing how strongly our citizens feel about preserving Skaha Park, we are confident that a target of 10,000 SSPS members is both realistic and achievable.
- Why has the City taken so long to respond to our claim?
We can only speculate. Possibilities include: they think we will lose interest and fade away; they feel our claim is strong and are having trouble refuting it; there may be issues between the City and the developer of which we are unaware; the PIB demands for an environmental and archeological assessments may further complicate their options.
- Why haven’t we pushed the Court to declare a default judgement?
The BC Supreme Court is always very cautious about overturning a municipal government decision because they were elected to make decisions and they will often be unpopular with a segment of the voters. If we appear aggressive and strident that could work against us. Besides, time really is on our hands. The longer the pall of civil action hangs over Council’s head the harder it will be for them to do business and to get re-elected.
- Why haven’t we heard more from SSP leaders about what’s going on?
We have sent out periodic newsletters. But with the civil claim on hold while we await a response from the City, there is not much we can say that is newsworthy. But a big reason you haven’t heard more is that we have been denied access to all of our malls, greatly limiting our ability to meet the public during winter weather. We have some great plans for the spring. Stay tuned.
- Is the developer still committed to the waterpark?
We don’t know the answer. Rumors abound that there have been significant changes at Trio, and we can only wait and see.
- Is there any indication some Councillors are having second thoughts about the waterslides?
Not to our knowledge. Given the civil claim, we and they have been understandably cautious in initiating dialogue due to the risk of miscommunication.
- Why didn’t the City terminate the agreement with Trio when they defaulted last October?
We don’t know all the reasons, but one reason was that the controversy is over the waterpark agreement, but it was the marina improvement agreement that faced a financing deadline, and none of us are opposed to the marina. Another factor could have been the surprise action by PIB to seek environmental and archeological assessment.
- The City’s lawyer said the City’s response to our claim would be filed by the end of February and we are still waiting. What are you doing about it?
We are advised by our lawyer that this should not be an issue for us. As previously stated, time is our friend. Our goal is to see an end to the Skaha Park Waterpark agreement. That could occur by the court proceedings, but it could occur in other ways at less cost to all and as time passes, the likelihood of that happening increases.