Sunshine Village and Parks Canada were back in federal court last week to argue about what parts of its access road the ski hill should be able to use to park vehicles.
The access road to Sunshine has 10 historical avalanche paths along it that users of the hill have to drive through to reach the base. During about 25-35 days of the ski season, parking overflows onto the road, potentially placing parked vehicles and pedestrians in avalanche paths.
A controlled avalanche by Parks Canada that went far beyond the historical avalanche path in March 2012 resulted in the federal agency reviewing where parking is allowed, and when, along the access road.
At the end of September, Superintendent Dave McDonough issued an interim decision and significantly changed the parking situation for the ski hill as a result of a review of a 2006 protocol the two parties adopted, and updated mapping of the avalanche zones by an expert. Sunshine reviewed that decision and submitted a response to Parks before a final decision was made in December, which altered some of the areas where restrictions were in place, but for the most part continued to significantly restrict parking along 3.5 kilometres of road.
Sunshine challenged the decision in front of Federal Court Justice Michael Phelan last Wednesday (Jan. 22), calling it unreasonable.
Sunshine lawyer Kent Anderson argued Parks Canada put in place a blanket prohibition on parking when in fact the two parties were engaged in a successful mitigation program.
Anderson said Sunshine’s lease with Parks grants it right of access and that “includes all uses reasonably necessary for the use and enjoyment of the lease lands and whatever else is ancillary of that use.”
He said to have effective access when the parking lot is full, Sunshine has an entitlement to be parking on the access road.
“Ultimately, I submit the lease grants that right and it also obligates her majesty to provide comprehensive avalanche control on all lands affected,” Anderson said. “We have a right to use that road and, I submit, a right to park there.”
Laura Dunham and Christine Ashcroft, lawyers for the Department of Justice representing Parks Canada, disagreed.
“Throughout these submissions there has been a suggestion of entitlement of Sunshine to park on that road,” Ashcroft said. “In our respectful submission, we suggest no such entitlement exists.”
Dunham called a 2012 size four avalanche, which brought down 150 metres of debris on the road while it was closed, a wake up call for the federal agency.
“The so-called controlled avalanche was not controlled at all – it was a wake up call,” Dunham said, adding four experienced avalanche forecasters were involved that day. “They got it wrong and they had over 20 years of experience on that road.”
She said Parks Canada assumes the risk of what happens on that access road and as a result Sunshine has no entitlement or right to parking on the road.
“The lease provides right of general access and that is qualified by the superintendent’s reasonable rules and expectations,” Dunham added. “Sunshine can access their land, they simply cannot allow patrons to park on Parks Canada’s highway in avalanche paths.
“In Parks Canada’s view, this was a wake up call to all the risks it was facing; it reminded forecasting is inherently unpredictable and forecasting avalanches is not a direct science.”
Since 2006, parking and avalanche control on the road was done in partnership betwen Parks Canada and the ski hill under the guidance of an agreed upon protocol that makes it clear vehicles can only park in certain sections when the avalanche danger is low and that Parks would be in charge of avalanche control work.
It designated areas that are restricted from parking at all times due to risk and others that are prohibited if the avalanche risk assessed is high. Parks was in charge of assessing risk and communicating closures to the ski hill.
That partnership, according to Parks Canada, has always been meant to be short term until Sunshine can complete its ski area guidelines and long-range plans, as required by the federal agency. Those planning processes would include addressing the shortage of parking at the base of the hill.
Anderson argued the superintendent’s letters to Sunshine, which included language to consider exploring off-site parking options, could indicate the decision to restrict parking was made to pressure the ski hill into completing its statutory plans.
“It is suggestive to me at least that Superintendent McDonough is perhaps through this decision trying to exert some additional leverage for a longer term solution,” Anderson said.
Dunham responded the superintendent was trying to be helpful and do his job “because at the end of the day, the root problem is lack of parking.”
Anderson said the review done by Sunshine shows no major avalanche has reached the road since 1990 and that the 2006 protocol in place works well. He said the review found the risk low due to the level of avalanche management being conducted by Parks Canada.
“All experts concluded with active mitigation and protocols the residual risk is low and it has been successful since 2006,” he said. “And the fact is, nothing has come onto the road when it was open since 1990.”
Sunshine also argued that it was not provided with a copy of a memorandum from Parks employees involved in avalanche control and mountain risk given to McDonough that served to inform his final decision.
Anderson argued the memo misinformed the superintendent about the significance of the 2012 avalanche and overstated the risk, which contributed to the unreasonable decision.
“To turn that into a wholesale indictment of the 2006 strategy and call it a close call and that there was not enough margin for error is a gross mischaracterization,” he said.
Anderson argued the 2012 avalanche is an example of how the system works, because the road was closed at the time and there was no risk to the public.
Sunshine lawyer Sarah Hanson argued because Sunshine was not provided with a copy of the memo, it was not able to address the issues raised in it and as such was denied procedural fairness.
