The gate on the City of Kelowna boardwalk through the Hotel Eldorado patio area remains locked despite a court injunction. The sign on the gate says "Due to COVID-19 social distancing and safety protocols, please use the detour shown below."

(ROB MUNRO / iNFOnews.ca)

A written court ruling is now out that explains why the gate on the public boardwalk through the Hotel Eldorado’s outdoor patio can be locked most days, even when no one is dining outside.

B.C. Supreme Court Justice Paul Riley granted the City of Kelowna an injunction on Oct. 13 that says the gate allowing access to the boardwalk must be unlocked on days when the patio is not being used.

That was an oral ruling and the written ruling was not issued until yesterday, Oct. 26.

The ruling grants the injunction pending a full trial where the city wants to enforce its right of way along the lakefront through the hotel’s patio area. The Hotel Eldorado was identified in the ruling as 1004364 BC Ltd.

The hotel’s lawyer argued that the right of way is not enforceable because it contains a “positive obligation” on the company’s part. That is, the hotel is required maintain the boardwalk and keep it in good repair.

That issue still has to go to trial.

The city, while waiting for the trial, sought an injunction so people could walk along the boardwalk that runs from the south end of Rotary Beach Park, past Manteo Waterfront Hotel (which is part of the Eldorado Resort) and the Eldorado Hotel.

The hotel argued that there was no reason to grant the injunction while waiting for the trial because, for one thing, the city itself had locked the gate during COVID lockdowns and, for another thing, the walkway did not actually lead anywhere.

JoAnne Adamson, the city's Urban Planning Manager, told iNFOnews.ca today that that statement was not true. She is working with city lawyers to determine the next course of action the city will take. While there is no court date set to hear the right of way issue, this a top priority for the city, she said, adding that the right of way has been in place for more than 20 years.

The gate on the south end of the patio is locked and the boardwalk extends for a short distance south of the locked gate to the boat launching area of the Cook Road Boat Launch. The patio itself has a row of tables perched on the edge of the boat launching area along with tables on the land side of the boardwalk.

Justice Riley noted that the area under dispute is less than half a city block long and could be crossed in 30 to 40 seconds.

Regardless, he ruled, the closure causes irreparable harm to the public.

“Although it might fairly be said that denial of public access to a short stretch of lakeside walkway for the period of time necessary for this action to come to trial is a harm of a different magnitude than complete denial of access to a public body of water, I would not want to trivialize the public interest in unimpeded access to the lakeside walkway in the interests of recreation and tourism as well as the City's ability to advance its planning and land use objectives,” Riley wrote.

That was a key justification for him in granting the injunction.

COVID restrictions, on the other hand, offer support to the hotel for keeping the public out.

“The defendant's concern, which in my view is a fair one, is that a public health inspector may not consider the current configuration of outdoor dining sufficiently safe if members of the public, some of whom are fully vaccinated and others of whom are not, and some of whom are wearing masks while walking outdoors and others of whom are not, are prepared to walk down the length of the boardwalk dining area within a metre of or perhaps less of the defendant's patrons,” Riley wrote.

Therefore, he struck a balance between the two.

“The appropriate balance can be achieved by an order that: (a) prevents the defendant from denying public access to the lakeside walkway during periods of time (full days) when the defendant's outdoor dining area is not open for business; and (b) allows the defendant to block public access to the lakeside walkway during periods of time (full days) when the defendant's outdoor dining area is open for business,” Riley wrote.

Hotel General Manager Mark Jeanes did not return phone calls from iNFOnews.ca by publication time.

But, staff on site when iNFOnews.ca visited today said the patio was, in fact, open and has been open year round in the past.

They said they could not be quoted but did mention that, on particularly foul or rainy days when it was clear no one would want to sit on the patio, that the gate is unlocked.

The wording of Riley’s decision gives the hotel the right to lock the gate for a full day when the patio is open. That applies even if no one is using it.

READ MORE: Plan Kelowna calling for boycott of Eldorado Hotel following court ruling

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