Why the B.C. attorney general is suing West Vancouver

North Shore News

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The attorney general of B.C. is taking the District of West Vancouver to court, alleging the municipality has broken an agreement it made with two residents who donated their property on the promise it would be turned into a park.

West Vancouver resident Paul Hundal stands at the base of a massive tree growing on land donated for park use but never converted to a park. File photo by Mike Wakefield/North Shore News

In the late 1980s, Pearley and Noreen Brissenden bequeathed their property at 2519 and 2539 Rosebery Ave. to the district, according to court documents, “to be used and maintained by it for public park purposes.”

Noreen died in 1990 and the district became the trustee of the land later that year, but the district never followed through on the promise, the suit filed in B.C. Supreme Court earlier this month alleges.

In 2017, the district applied to the courts for permission to vary the trust, intending to subdivide the southern 43 per cent of the property into three lots, which would then be sold to fund the purchase of more waterfront land for public use in Ambleside. In their court documents, the district argued the Brissenden’s land was not well suited to be a park because of its steep terrain and lack of parking and transit access. The AG’s office opposed the sale at the time but is now asking the courts to force West Van to live up to the terms it agreed to more than 25 years ago.

“None of the physical characteristics of the property, such as topography or location, have changed since the late 1980s when the Brissendens made their intention to make the bequest known to West Van and West Van communicated to the Brissendens the bequest would be welcome and that the property would be appropriate for a neighbourhood park,” the AG’s court documents state.

Instead of converting it to a park, West Vancouver rented the Brissenden’s home out from 2001 to 2018. The municipality characterized the renter as a caretaker for the property, but “the property did not require a caretaker” the claim states.

The rent provided “at least” $498,219 to the district, the ministry estimates in its claim, none of which was spent for the purposes of the park trust.

“West Van treated the rent as its own money and not as trust money of the park trust,” the claim states.

The attorney general goes on to allege the person who lived there “received a reduction in rent or some form of remuneration from West Van” although the documents state AG does not know what the particulars of the arrangement were.

Despite four requests, the district has not passed its accounts – a formal presentation of a trustee’s books – as required and only provided “incomplete financial information” about the trust to the AG, the claim states.

In the suit, the AG is asking the courts to declare the district in breach of the trust for failing to make it a park and for profiting from the rent. Any rent money collected from the property should be accounted for and handed back to the trust, the claim adds. And the AG is asking the court to order West Van to make the property into a park.

“The property was bequeathed to West Van more than 25 years ago and West Van has not used or maintained the property as a public park since it accepted the bequest,” the claim states. “West Van breached its duty as a trustee to act in good faith and to carry out the terms of the park trust for the benefit of and in the best interests of the charitable purpose of the park trust.”

As of Monday, district spokeswoman Donna Powers said the municipality had not yet been served with the civil claim although they have picked up copies from the court registry.

“Our legal council is reviewing it,” she said.