A dispute over whether the Hotel Eldorado has the right to lock this gate during daylight hours is expected to take five days in court.

(ROB MUNRO / iNFOnews.ca)

The long simmering dispute over a public boardwalk across the Hotel Eldorado’s outdoor patio on Okanagan Lake in Kelowna is now being fought in a courtroom.

The fight started back in 2020, at the height of the COVID-19 pandemic, when provincial restrictions limited the number of people who could sit in restaurants and on their patios.

A public boardwalk crosses the hotel’s patio so the Hotel Eldorado locked that gate, barring public access along the waterfront.

The city filed a Notice of Civil Claim on March 30, 2021, demanding that the gate be kept open during the day.

The hotel owners countered that claim, asking that the right-of-way be declared as invalid and unenforceable “as it amounts to a positive obligation to maintain a boardwalk.”

Since it was going to take months before that issue got to trial, the city sought an injunction to stop the hotel from locking the gate. In October 2021, a judge ruled that the gate could be locked on days when the patio was open to diners but it had to be left open when the patio was not being used.

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

The current trial deals with the question of whether the city actually has a legal right-of-way across the hotel’s patio.

The city’s claim said that in 1989 the previous owner of the hotel, R93 Enterprises Ltd., wanted to build a marina and put fill into Okanagan Lake where the land had been eroded in the past.

“The area filled was substantially larger than had been proposed to be filled and for which approval had been obtained by the province,” the statement of claim said.

In discussions with the province, R93 said it “desired” to dedicate a public walkway along the Okanagan Lake frontage of the Hotel Eldorado property, the city’s document said.

The province eventually approved a tenure for the entire 515 square metres that had been filled.

It wasn’t until Feb. 17, 1999, that the province offered a cCrown grant for the area. That required R93 to survey a right-of-way/easement through the fill area so a public walkway could be established “in favour of the City of Kelowna.”

On March 15, 1999, R93 was issued a development permit by the City of Kelowna to build a fuel facility. It also required that the right-of-way be registered in favour of the city.

The permit also said the hotel could not “install or maintain any building or structure, patio or ‘other condition’ that would interfere with, damage or prevent access to the perpetual right-of-way.”

But it also allowed the hotel to cut off access from sundown to sunrise each day.

Had it not been for COVID and the daytime closing of the gate, the city would not have raised the issue of access and the fight over the legality of the right-of-way itself likely would never have happened.

The trial, which got underway today, Jan. 26, is expected to take five days.

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