Fix the problem or pay the price. That is the message delivered to the province of British Columbia last week by BC Supreme Court Justice Mark McEwan in response to a lawsuit filed by a couple who reside and operate a bed and breakfast on Goat Canyon Road.
Whether there is a pot of gold at the end of a years-long battle for litigants Scott and Caroline Mynott won’t be determined until next fall, McEwan said in his ruling.
“The proper course, in my view, is to adjourn this matter to await the defendant’s (province’s) abatement during the next summer season,” he wrote. “If an effective end has been put to the activities, it will then be possible to estimate the Mynotts’ damages on a one-time basis. I emphasize that it is completely up to the defendant to work out the means by which a remedy is effected.”
The defendant in the case, the provincial government, owns the right of way to the popular swimming hole in the Goat River.
Frustrated by the behaviour of visitors to the swimming hole — many of whom are migrant fruit-pickers from Quebec — the Mynotts turned to the courts after their other attempts to solve the problem failed. The Erickson couple attempted to purchase the right of way (which once led to a bridge) and even installed a barricade to block the road, which was removed by the Ministry of Transportation.
The couple produced photos and video evidence of offensive activities.
“They complain of noise and foul language down at the beach,” McEwan wrote. “They have witnessed (and videotaped) episodes of public drinking and public nudity and indecency, including explicit sexual activity. They have gathered evidence suggesting drug use.”
McEwan said that providing signage and parking restrictions, placing a portable toilet dumpster at the top of the path that leads to the river, and relying on volunteers to clean debris from the area has not been sufficient to demonstrate the government is taking its responsibility for the land seriously.
“The users of the point have shown a marked disregard for these measures. The parking signs have been uprooted, and the portable toilet was upended. The dumpster simply appears to have added a new locus for obnoxious smells and litter without mitigating the mess on the beach,” he said.
“The overriding public policy consideration motivating the defendant is the conservation of government resources: it does not want to spend money. This is manifest not only in its answer to the plaintiffs’ claim on its face — an assertion that there is no duty on the government to control ‘trespassers’ and a suggestion that the plaintiffs look to law enforcement — but even more obvious in its highly developed defence at the second line — that the Mynotts cannot expect help from law enforcement, because the police lack the resources. Catch-22 comes irresistibly to mind.”
Acknowledging the efforts made by the Cherry Growers’ Association, which include volunteer cleanup efforts and attempts to influence pickers’ behavior, the judge said the responsibility falls squarely on the shoulders of the provincial government.
“It flatly submits that it is a valid exercise of public policy to allow public access to water on government held rights-of-way and to then take no interest when there is wholesale abuse of the privilege,” he said.
On Sept. 19, the court will reconvene in Cranbrook. At that time, McEwan will assess the success of the province to mitigate the problems over the summer and determine a suitable award to the Mynotts. He could also issue a court order requiring the government to clean up the site.