B.C. Court of Appeal sides with park board in spat with Vancouver Aquarium

Dispute centres around whether the aquarium has the right to keep cetaceans in captivity

Vancouver Aquarium is B.C.'s fifth largest tourist attraction | Chung Chow

The dispute between the Vancouver Aquarium and the City of Vancouver over the Vancouver Park Board’s ban on whales, dolphins and other cetaceans in captivity continues in the wake of a B.C. Court of Appeal judgment that sides with the city.

Three B.C. Court of Appeal judges on February 19 overturned a B.C. Supreme Court judge’s ruling that sided with the Vancouver Aquarium and declared the city’s revising of a bylaw to forbid cetaceans in captivity as being void.

The judgment, however, does not end the dispute.

The B.C. Court of Appeal judgment only related to one of the Vancouver Aquarium’s four reasons for wanting the city’s bylaw change to be quashed.

The Vancouver Aquarium had argued that because it has a licence agreement with the Vancouver Park Board, the park board is unable to make the change to the bylaw in a way that changes that licence agreement.

Former Vancouver Aquarium CEO, the now-retired John Nightingale explained to Business in Vancouver last year that if the park board can unilaterally change a contract without participation of the other party, there would be nothing stopping the board from suddenly deciding that restaurants in the park can no longer serve hamburgers. City council, similarly, could arbitrarily decide that city art galleries are no longer allowed to display paintings of nude models, he said.

The B.C. Court of Appeal judgment said in its dismissal of Nightingale’s arguments that a city “cannot fetter its legislative powers" in a licence agreement unless expressly authorized by a law, and there is nothing in the Vancouver Charter that contains express authorization permitting the Park Board to fetter its by-law making power.

The result is that the case is being sent back to B.C. Supreme Court, where a justice will consider several other arguments from the Vancouver Aquarium:

• that the enactment of the by-law amendment offended procedural fairness;

• that the relevant part of the by-law amendment was void for vagueness; and,

• that the by-law amendment infringed the Vancouver Aquarium’s right to free expression under Canadian Constitution.

Nightingale said last year that the Vancouver Aquarium had no plans to keep cetaceans on an ongoing basis regardless of the outcome of the court action.

The Vancouver Aquarium said in a release on February 19 that it appreciated that the court was quick in issuing a judgment, and that it would be reviewing the judgment with its legal counsel to consider implications on the organization before determining its next step.

The Vancouver Park Board, in contrast, is “pleased by today’s decision,” said chair Stuart Mackinnon. “The amendment to our bylaw is thoughtful and reflective of public opinion. The court’s decision upholds our legislative powers to regulate activities and operations within our parks.”

gkorstrom@biv.com

@GlenKorstrom