Hotel Eldorado won round two of a legal battle with the City of Kelowna to keep the public off its patio when it's open for business.

(ROB MUNRO / iNFOnews.ca)

The City of Kelowna has once again failed to convince a judge that a lakeside hotel and restaurant must not block the public from a public walkway.

Last October a judge ruled in favour of the Hotel Eldorado closing public access to a waterfront boardwalk along Okanagan Lake that runs through its outdoor patio.

The City of Kelowna had sought an injunction to prevent the boardwalk being closed. B.C. Supreme Court Justice Paul Riley ruled, at that time, the boardwalk could be closed for the full day if the patio was open for patrons citing concerns about public health orders for COVID-19.

The City appealed that ruling. That appeal was heard on Dec. 1 by Justice Riley who issued a written version of his verbal decision today, Jan. 5. In it, he upheld the right of the Eldorado to close access but with some refinements.

READ MORE: Eldorado gate staying closed on Kelowna boardwalk because people can still dine outside

Key issues in the dispute revolve around orders from the Provincial Health Officer restricting access to restaurants because of COVID.

“I found that the combination of physical distancing concerns, maximum occupancy limits, and requirement to prevent congregation of patrons, collectively gave rise to a genuine concern that public health officials could require the defendant to shut down or modify its outdoor dining operations during a period when the defendant is potentially more dependant on outdoor dining than it normally would be were it not for the pandemic,” Riley wrote in his decision.

Even though some of those rules were relaxed since the original hearing, the unusual set-up at the Eldorado made it difficult to remain open since rules like mandatory vaccine passports remain in place.

“We are dealing here with a rather unique space, with no physical separation between the walking public and patrons of the defendant’s outdoor dining area, making it difficult for the defendant’s staff to distinguish between patrons and the public so as to comply with its obligations under the PHO (Provincial Health Officer),” Riley wrote.

“The defendant’s employees have an obligation to confirm the vaccination status of anyone who wishes to patronize the restaurant. If a patron or potential patron does not have proof of vaccination, the defendant is obliged to ensure that they do not remain in the premises. This is relatively easy to do in a normal indoor setting. It is also relatively easy to do in an outdoor setting with physical barriers, or controlled access, or a clear geographical boundary between the public space and the restaurant space.

"It is much more challenging in the context of an outdoor space with no physical barriers, no controlled access, and no geographic boundary between members of the public simply using the lakeside walkway and those who intend to patronize the defendant’s outdoor dining area. It is true that the PHO (Provincial Health Officer) obligations do not apply to members of the public not intending to patronize the defendant’s establishment, but the defendant’s employees will have no practical way of distinguishing between potential patrons and members of the public.”

READ MORE: Here’s the part of Kelowna's Hotel Eldorado story you may not know

The City of Kelowna’s lawyer argued that Eldorado staff were not acting in good faith following the October ruling.

In the 39 days following the earlier ruling, the boardwalk access was closed for 23 days, but six were due to construction and a film shoot.

Of the remaining 15 days, the Eldorado served patrons on eight of those days but no one sat out there on the other seven days, mostly due to bad weather.

"I am not convinced that the defendant or its agents are acting in bad faith," Riley ruled.

Riley refined his order to say that Eldorado staff were to make a preliminary decision on whether to open the patio by 7 a.m. and a final decision by 11 a.m.

The City is allowed to appeal the ruling if COVID restrictions change sufficiently but must give three days notice to the Eldorado first.

Still to be resolved at trial is whether the City’s right-of-way across the Eldorado patio is enforceable.

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