B.C. Supreme Court rejects Stanley Park businesses' bid to overturn park board's bike lane decision

A B.C. Supreme Court justice has rejected a petition from two businesses based in Vancouver's Stanley Park that sought a judicial review of the Vancouver Park Board's decision to reinstate a controversial bike lane in the park.

The park board decided in a 5-2 vote back in March to close one lane of Stanley Park Drive for the summer, shifting the road to one-way traffic and using the second lane as a bike lane.

The traffic pattern is similar to the one that was in place from June to September 2020, following a full closure of the road in April 2020 that was intended to allow more space for physical distancing among park users at the outset of the COVID-19 pandemic.

Businesses that operate in the park found the 2020 road closure and bike lane highly disruptive, and were strongly opposed to the reinstatement of the traffic pattern in 2021. 

Ferguson Point Restaurant Inc., which owns and operates the Teahouse restaurant, and Stanley Park Operations Ltd., which owns and operates the Stanley Park Pavilion and Prospect Point Bar and Grill, petitioned the B.C. Supreme Court, arguing that the park board's decision was "not reasonable, rational or logical.

Justice Sheila Tucker disagreed with the companies' arguments about the reasonableness of the board's decision, and dismissed their petition earlier this week

The businesses presented two main arguments for their case, according to Tucker. First, they argued that the park board's decision was intended to reduce carbon emissions, but would, in fact, have the opposite effect, by forcing park users with vehicles to spend more time idling in traffic or to drive to another park farther away.

Second, they argued that the survey of Stanley Park users that park board commissioners referenced during discussion of the resolution was presented as representative of the general population, when, in fact, it wasn't.

Park board Commissioner Camil Dumont, who brought forward the motion to reinstate the bike line in 2021, described climate change as a major reason for his proposal.

“The main driver of this is the realization that we have to decentre the automobile from our way of life and that’s a very difficult thing to do and it comes with lots of challenges,” Dumont said during discussion of the motion.

Despite this, Tucker was unconvinced that reducing emissions was the sole reason for the decision. Rather, the justice noted that the bike lane plan was part of a larger climate change strategy from both the park board and the city as a whole.

"The resolution is a small and exploratory component in a wide-ranging policy response to a social dilemma, not an operational solution to emission volumes," Tucker wrote in her decision.

"The resolution does not rest on an empirical assumption. That being the case, its rationality does not hinge on an empirical result."

The justice also rejected the petitioners' argument that the "whereas" statements in the preamble to the resolution constituted the reasons for the resolution itself. Rather, she accepted the park board's framing of the issue, which she described as follows:

"The park board frames the question before me as whether, on consideration of the entire record on review, the resolution is a decision a reasonable board could make in light of all of the social, economic, political and other non-legal factors that the commissioners were entitled to and did consider."

Tucker wrote that neither of the petitioners' arguments could be characterized as "a central or significant consideration" in the board's decision-making process, based on her review of the record.

"The record indicates that all of the votes were multi-factoral and that each Commissioner’s vote was an individual judgment call," Tucker wrote.

"More fundamentally, however, the record does not support the petitioners’ assertion that the particular bases posited were bases for decision," she added. "That is, the record does not disclose that the 2021 bike lane was intended to directly reduce carbon emissions or that the commissioners were led to believe the Stanley Park survey results were representative of public opinion."