Victory in the Supreme Court

Docks Bylaw Lawsuit Dismissed

(April 4th, 2016) It’s been almost a year since Bowen Municipal Council passed the Docks Bylaw, preventing applications for new docks at Cape Roger Curtis. It was a controversial decision, taken under threat of a lawsuit. It’s a great time to thank Council for their decision, and congratulate them on weathering the storm so far.Write a message to all the councilors at once. Though not all councilors voted in favour of the bylaw, it reminds everyone of your support for it.

On March 31st, The Honourable Mr. Justice Punnett delivered his judgement on the case Shu Lin Dong and Zhen Wang vs. Bowen Island Municipality. He dismissed the lawsuit and awarded costs to the Municipality. For supporters of our current council and Stop the Docks, this is a clear victory and vindication of several years of effort.

The two Cape Roger Curtis waterfront property owners challenged the bylaw, claiming that:

  • the bylaw was inconsistent with the Official Community Plan,
  • therefore it was beyond the Council’s authority (‘ultra vires’),
  • it was passed too fast and in bad faith,
  • it was discriminatory,
  • public consultation on the bylaw was inadequate,
  • disclosure to the public before the bylaw was passed was deficient,
  • when the bylaw was passed, some councillors failed to consider the matter 
  • and there was a lack of procedural fairness when the bylaw was passed.

Mr. Justice Punnett dismissed every one of these grounds. He upheld the bylaw and Council’s right to pass such a bylaw. See excerpts below.

In the 45-page B.C. Supreme Court decision, Justice Punnett explains the story behind the lawsuit, the applicable precedents, and his findings on each point.
View the decision (PDF)
or on the Courts of British Columbia website.

[79] While the petitioners assert they have been targeted or singled out, the evidence is that after the first three docks were built public concern grew and the petitioners’ applications to build docks increased that concern. In the context of the Official Community Plan and the prospect of numerous and substantial docks in the area, such concerns are understandable. This does not mean the petitioners were targeted. …

[81] In my opinion Bylaw No. 381 was within the jurisdiction of the Municipal Council under the Islands Trust Act, R.S.B.C. 1996, c. 239, the Islands Trust Policy Statement and the Local Government Act. The petitioner has failed to show that the public interest was not the basis for the decision of the majority of the Municipal Council who voted to adopt Bylaw No. 381. The petitioner has not shown there was some other motive or basis for adopting that bylaw. …

[82] The petitioner alleges that by refusing permission to Cape Roger Curtis property owners to build moorage structures Bylaw No. 381 is discriminatory and therefore illegal. [83] Zoning bylaws are by their nature inherently discriminatory, in that some uses are permitted and some are not. Section 479(4), formerly 903 (3) of the Local Government Act expressly authorizes bylaws that may be different for different zones. …

[93] There is no evidence that the councillors voting in favour of Bylaw No. 381 did so without regard for the public interest. Indeed the level of interest in the issue and the comprehensive information provided to the public and to council would accentuate the public interest. The evidence does not show that the council members ignored or failed to consider all relevant factors and issues. …

[97] … I find no discrimination in law. The evidence does not establish any improper motive, purpose or other irrelevant considerations by Municipal Council.

[125] There is no evidence that the Municipality limited or attempted to limit public debate. There is no evidence that anyone was prevented from saying anything at the public hearing. All who wished to speak were permitted to do so. …

[129] With respect to the allegation that the Municipality passed the bylaw as quickly as possible, which the petitioners say leads to the inference that they were trying to trump the tenure approvals and limit public debate, the evidence does not indicate that to be the case.

[133] The “legitimate expectation” relied on by the petitioners is that the existing regulatory framework would not be changed from the time they initially applied to build a dock and their approval and completion. The doctrine’s application however does not have the substantive effect the petitioners suggest.

[135] Because the decision in question was legislative as opposed to administrative the doctrine does not apply. As a result not only did the petitioners not initially have a “right” to the zoning that permitted a private moorage for every lot nor do they have a “right” to that zoning never being altered.

[137] I do not accept the petitioners submission that the overall situation is that the petitioners are “victims of a ruthless bylaw that was passed to target the petitioners for no justifiable reason”. In my view the bylaw, while prompted by concerns raised by the grandfathered docks and the petitioners’ proposed docks, does not target the petitioners nor is there “no justifiable reason”. The Official Community Plan encompasses broader issues affecting the public interest, an interest that is clearly of significance given the subject is the construction of moorage facilities on the foreshore and into the sea, areas that are Crown property and are open to public access. …

[138] Nor do I accept that the Municipal Council prejudiced and deprived the petitioners of rights because “subjectively” they did not like the view and on a “whim” they deprived the petitioners’ of substantive rights attached to their land. That characterization ignores the fact that the Official Community Plan includes the issue of viewscapes and public access.

[139] The petitioners’ argument in essence, as noted in para. 16(d) of the petition where they allege the Municipality “failed to come to a reasonable solution,” is that the Municipality was obliged to behave reasonably in a manner that favoured the petitioners. It is not for this Court to substitute its decision for that of the Municipal Council where they have acted lawfully and within their authority. As noted in Pollard at para. 51:
… A municipal council acting within its statutory powers is answerable to the electorate and to the Legislature. It is not answerable to this or any other Court.

[140] The petition is dismissed with costs to the respondent.

NOTE: an additional lawsuit filed by Zongshen (Canada), owner of lots 1 and 14 at the Cape, is still pending. Because it is based on very similar grounds to the previous actions, we’re optimistic that it too will be rebuffed.

Presentation to Islands Trust by Melissa Harrison

Read her insightful and articulate exposé on the Stop The Docks website.


The dock at Lot 11, now complete, dramatically impacted the recreation area at Pebble Beach. The float appears right in the middle of the bay, and reduced the previously unobstructed view from the public beach by about half. Click on the map for a larger version.

The new view for kayakers at Cape Roger Curtis

The new view for kayakers at Cape Roger Curtis

Hard at work on the 'untouched shores' of Cape Roger Curtis

Hard at work on the ‘untouched shores’ of Cape Roger Curtis

Cape Roger Curtis had long been considered the “jewel in the crown” of the southern fjord waters called Howe Sound. The property is on Bowen Island, accessible from Vancouver by 15 minute ferry ride. This area is part of the Howe Sound viewscape enjoyed by millions of BC Ferry passengers, cruise ship tours, boaters and kayakers each year. Cape Roger Curtis is the gateway to silhouetted islands, rising to the majestic mountains of Whistler and Garibaldi Provincial Park.

Photo of the little lighthouse out on the point at Cape Roger Curtis

The lighthouse at Cape Roger Curtis. One of the four giant docks will appear in the middle of this iconic landscape. How could we say or do nothing?     Photo © Will Husby

The Cape Roger Curtis public beaches and tidepools are highly valued by thousands of Bowen Island residents and visitors. The shoreline and intertidal habitat feature a unique and sensitive environment.

The owners applied through proper channels to approve their dock applications. Docks on Bowen Island are not uncommon. What is uncommon in this case is the quality of the public property and the effect the structures would have upon this singular seascape. To date over 1,385 people have signed the petition to stop the dock projects.

At the end of April 2013, the owners of the property, Edwin Lee and Don Ho, began erecting four giant docks, the largest as long as the Queen of Capilano, the ferry which connects Bowen Island to the mainland. With wharf, ramp and float on end, it would be similar in height to Vancouver’s third tallest building.

Photo of a ferry.

The Queen of Capilano, our local ferry, is 315 feet long. One dock in particular will be over 400 feet long including wharf, ramp and float.

The Stop the Docks Campaign has been created to explore every avenue to prevent the construction of these docks.  We respect the environmentally sensitive aspiration expressed on the owners’ website, We feel that leaving the shoreline as it is would prove the sincerity of their mission statement and we are asking them to do so.

At the same time, we tried to convince both the province of BC and Bowen Council to use their powers to stop the dock construction and ban private docks on the public waterfront at Cape Roger Curtis, as this project may be the first of many. A municipal election eventually brought in a more sympathetic council which enacted a ban on more docks at the cape, though by then several had been approved and the docks have indeed marred the experience of Cape Roger Curtis. The docks have been disabled several times by the rough surf, and several of the docks are built from properties that still have no houses on them – they were built mainly for the investment value.

See videos of four locations – prior to dock building

NEWS and Recent Additions to the site

  • Victory in Supreme Court Docks Bylaw Lawsuit Dismissed THANKS TO COUNCIL (April 4th, 2015) It’s been almost a year since Bowen Municipal Council passed the Docks Bylaw, preventing applications for new docks at Cape Roger Curtis. It was a controversial decision, taken under threat of a lawsuit. It’s a great time to thank Council for their decision, and congratulate them on ...
  • Giant Docks – Coming to a Beach Near You? By Melissa Harrison Bowen Island, BC – March 10, 2015 Presented to Islands Trust I think we will all agree that beaches and shorelines are of prime importance to our enjoyment of our island homes. Many of us, especially those with young children, spend many hours on public beaches each year. Beaches are not only important for our ...
  • Summer 2014 Update Summer 2014 Update Time for Phase 2 of the Docks Bylaw What is Cape Roger Curtis like now? There is a dock at Lot 13. It broke apart in a mild early summer storm. There is a dock at Lot 11, Pebble Beach. It has been modified with additional pylons, presumably to reduce the likelihood of it ...
  • Protest against the Dock at Pebble Beach Continues The following letter from Dr. Richard Wiefelspuett was sent on February 13, 2014, to Bowen Island Municipality, Transport Canada, and the Province of BC (Forest, Lands and Natural Resources and the reponsible minister). It was published in part in the Undercurrent (February 21 issue). Dear Ladies and Gentlemen, The Bowen Island Municipality Land Use Bylaw regulates water ...
  • Amended Dock Bylaw Passes – No Protection for Cape Roger Curtis Bowen Island Municipal Council passed an amended dock bylaw on Nov. 25. For details, including the Stop The Docks Nov. 26 letter to Minister Thomson, see dock bylaw passes despite widespread opposition. Two important and positive amendments were made in third reading. 1. The maximum length of a dock was reduced from 60m to 40m. 2. The purpose ...
  • Benefit at the Bowen Island Pub Come enjoy a cup of cheer, good company and great music and help support our campaign. Adam Woodall will join us with his guitar and rich repertoire of popular music. Drop in for a while or stay for the evening. Tuesday, December 10, 7 to 10 p.m. Bowen Island Pub Suggested donation at the door: $10 Proceeds will be ...
  • Dock Bylaw Passes Despite Widespread Opposition Bowen Island Municipal Council gave third and final reading to the dock bylaw on Mon., Nov. 25, enacting a dock bylaw that fails to protect Cape Roger Curtis. In a letter sent Nov. 26, Stop The Docks again appealed to Mr. Steve Thomson, Minister of Forests, Lands and Natural Resources Operations, because our municipal government has ...
  • Video: CRC 20 Chains This short film shows the problems associated with the long anchor chains for the dock floats — chains that will scour the sea floor — and documents the rich marine life that will be affected by the chains and boat use at the Lot 13 dock. Thank you to Neil Hammond for editing the footage. CRC 20 ...
  • Public Comments re: Proposed Docks Bylaw Public comments closed at the end of the hearing on November 12. On this page are comments that were sent through our site by the public to Bowen Island Municipal Council regarding the proposed Docks Bylaw. You can find out more about it on our home page, and the  Zoning for Private & Group Moorages page ...
  • The Orcas Return September brought back the whales and the surf scoters: