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Whistler shot down in appeal of Rainbow Park expropriation suit

B.C. Court of Appeal will not grant appeal of $1.3 million award to Saxton family

Whistler Mayor Ken Melamed is disappointed at a B.C. Court of Appeal ruling in the expropriation of Rainbow Park that puts the municipality on the hook for $1.3 million.

Speaking to Pique on Monday, the mayor said that lawyers working for the Resort Municipality of Whistler on a case that has dragged on for over 20 years represented it "quite well" in what he called a "very challenging case," adding an appeal was denied because it was "bound to fail."

"We have to abide with the decision of the court," he said. "We followed the legislation of the day and had the appropriate valuations done. We've been defending that process and that decision, one of the things we can observe is you never know what the outcome is going to be when you go to court."

There is contingency money available for the court case, but the municipality is still working out how payment will be done.

Last Thursday morning three B.C. Court of Appeal judges determined that the Resort Municipality of Whistler could not appeal the dismissal of an appeal that would have allowed them to challenge a $1.3 million award granted to the Saxton family for the expropriation of Rainbow Park.

Justice Kenneth Mackenzie, writing for the court, ultimately concluded that an appeal by Whistler would have no reasonable prospect of success, agreeing with an earlier appellate court judgment that dismissed the municipality's appeal because it was believed abandoned.

The judgment concerns the 1987 expropriation of Rainbow Park, a public park that is located on a property that used to belong to the Saxton family, whose son, Andrew Saxton, is now campaigning for re-election as the Member of Parliament for North Vancouver.

The municipality initially compensated the owners for an advance payment of $367,000 that came as part of a settlement agreement that was finalized in January 1988. The agreement held a provision that allowed the owners to pursue a claim for additional compensation.

The Saxton family challenged the agreement in hearings that took place between 1988 and 1995. In 1991, the municipality paid most of the $367,000 into court.

The Saxton family later filed a claim for additional compensation that was dormant until 2003/2004. That claim was eventually tried in September and October of 2009 and the Supreme Court of British Columbia agreed, saying at the time that the market value of the property was actually $1.3 million when it was expropriated.

The municipality's lawyer filed a notice of appeal within the time allotted and its factum, a legal document outlining a statement of facts, was due in July 2010. According to the judgment, it was not filed despite repeated requests by counsel for the Saxton family.

A lawyer with the Resort Municipality of Whistler did not return a request for comment but the communications department did issue a statement at 1:42 p.m. on Thursday.

It merely stated that the Court shot down Whistler's appeal and that the $1,300,000 award to the Saxtons would stand. The release went on to say that a date has yet to be set in BC Supreme Court relating to matters of "interest and costs."