The owner of a waterfront home in West Vancouver is not entitled to buy or lease a part of the shoreline from the province, the BC Supreme Court has ruled.
In a decision issued late last month, Justice Heather MacNaughton dismissed a petition by property owner Heyan Wan, who sought to have the title to a section of the foreshore – the area of the shore between the high and low tide marks – transferred to her under BC’s Property Law Act.
The petition came about because of a unique feature of Wan’s property: An outdoor swimming pool that juts out onto the foreshore, surrounded by a stone seawall. At high tide, the pool is surrounded on three sides by seawater, according to MacNaughton’s decision.
The pool was built by the property’s previous owners in 1949. When Wan bought the property in 2015, the pool had developed some leaks.
The new owner hired contractors to demolish the old home on the property and build a new one. According to the court decision, the scope of that work also included repairs to the pool, which is what eventually led to the litigation.
In British Columbia, the foreshore is publicly owned. The foreshore of the Burrard Inlet where Wan’s property is located is managed by the District of West Vancouver, which leases it from the province.
The pool and seawall are considered “encroachments” on the foreshore. In November 2014, before Wan completed her purchase of the property, the district reached out to her offering a license for the encroachments, which Wan signed, according to MacNaughton’s decision.
“Paragraph 6 of the license requires Ms. Wan to keep the encroachments in a safe condition at all times, and prohibits her from replacing, expanding, altering, adding to, or substantially repairing the encroachments without the permission of the District’s Risk Manager, which permission could be withheld at the manager’s sole discretion,” the court decision reads.
The license also allows the district to terminate it with 30 days’ notice, which the district sent to Wan in October 2018 after reviewing the work that she had proposed to do on the pool.
In a letter accompanying the notice, district risk manager Clay Nelson wrote the following, according to MacNaughton’s decision:
“The district’s current policy approach to encroachments in the foreshore is not to penalize owners who may have acquired properties with unauthorized additions, by granting temporary licenses, where appropriate, to allow encroachments to remain until the end of their natural useful lives.”
“Where unnecessary encroachments have reached the stage where they would require investment in replacement, expansion, alteration, additions or substantial repair for their continued use, the district’s approach is to rescind existing licenses and require removal.”
Wan applied for a judicial review of the district’s decision to rescind her license and require demolition of the pool, and – separately – filed the Property Law Act lawsuit that MacNaughton ultimately dismissed.
Wan’s petition sought the right to purchase the foreshore from the province or, failing that, the right to secure a 30-year easement for the part of the foreshore where the pool is located.
In dismissing the petition, MacNaughton concluded there was no way Wan could have had an honest, but mistaken belief that the foreshore was part of her property, since she signed the license offered by the district.
“(Wan) cannot argue that she relied on any representations from the province, or for that matter the district, about the nature of the interest she was entitled to with respect to the encroachments,” MacNaughton wrote in her decision. “It could not have been clearer.”
MacNaughton noted that Wan’s petition indicates that she is not fluent in English and signed the license without seeking any legal advice before doing so. Despite this, however, Wan’s petition did not say that she did not understand the license or any of its terms, the justice wrote.
“While living in China, Ms. Wan purchased a $7.2 million property in Canada, demolished the home on it, and built a new one,” MacNaughton wrote.
“Given the size of that investment, Ms. Wan should have exercised due diligence signing the licence. A reasonable person making such an investment would have ascertained exactly what her rights were with respect to the encroachments and the terms of the licence. Having not done so, she cannot now say that she did not understand it or is not bound by its terms.”
MacNaughton further ruled that – given the size of Wan’s investment and the available estimates for the cost of removing the pool – it would not be cumbersome for her to remove it. Nor is it clear that removing the pool would significantly negatively impact the future value of the property, the justice wrote.
Thus, MacNaughton dismissed the petition in its entirety, awarding the province and district court costs.
She noted, however, that the district had rescinded its cancellation of the license pending the outcome of Wan’s legal cases. If the district considers Wan’s submissions and decides to cancel the license again, Wan is entitled to challenge that decision in court, according to MacNaughton.
Wan’s property was assessed at more than $12.6 million in 2021.