Okanagan Lake boardwalk to remain blocked by restaurant gate

The City of Kelowna has failed again to convince a judge that the Hotel Eldorado shouldn’t block the public from using the waterfront boardwalk that runs through its outdoor patio.

It’s the second time the city has brought the matter before a judge, the first time being in October 2021 after the hotel restaurant blocked public access to the walkway along the shores of Okanagan Lake for around 18 months.

The hotel claimed it was a response to COVID-19 health orders, when the city unsuccessfully took them to court to have the gates reopened.

B.C. Supreme Court Justice Paul Riley allowed for the closure based on, among other things, provincial health orders and ruled the boardwalk could be closed for the full day if the patio was open for patrons.

The city asked the court to reconsider that ruling in a Dec. 1 2021 hearing for a variety of reasons — in part due to easing health orders and what they argued was a misapprehension of the law and a misperception of what the Eldorado was contending with in terms of customer volume.

The judge wasn’t swayed by their view, putting emphasis on the fact that the restaurant’s employees are obliged to ensure that a patron has proof of vaccination lest they be removed.

“This is relatively easy to do in a normal indoor setting. It is also relatively easy to do in an outdoor setting with physical barriers, or controlled access, or a clear geographical boundary between the public space and the restaurant space” Riley said in part of his ruling.

“It is much more challenging in the context of an outdoor space with no physical barriers, no controlled access, and no geographic boundary between members of the public simply using the lakeside walkway and those who intend to patronize the defendant’s outdoor dining area.”

The city also claimed that the restaurant wasn’t always as busy as it had claimed and since the original decision had not followed the directions given in good faith.

The hotel offered a raft of reasons which Riley largely accepted.

In the Jan. 5 ruling, though, Riley did adjust the guidance set out for the Eldorado.

“The defendant is permitted to block public access to the lakeside walkway on days when the defendant’s outdoor dining area is open for business,” Riley said in his decision.

“In this regard, the defendant’s staff shall make a preliminary decision on whether to open the outside dining area for business by 7 a.m. each day, and if the decision is not to open for business, the defendant shall promptly ensure that public access to the lakeside walkway is not restricted.

1:53 Judge rules on legal spat between City of Kelowna and Eldorado

Eldorado staff will also have to make a final decision on whether to open the outside dining area for business by 11 a.m. each day, and if the final decision is not to open for business, the Eldorado shall promptly ensure that public access to the lakeside walkway is not restricted.

The judge also said the Eldorado shall at all times ensure that the signage on each end of the lakeside walkway is in place when public access is being blocked under this order, and is removed when public access is permitted under this order.

The case is still expected to head to trial, according to the judge, where the focus would be on whether or not the Eldorado is legally obligated to provide public access to the boardwalk.

The business claims the right of way declaration is invalid and unenforceable.

The city says it gave the previous property owner permission to develop the marina as part of a deal where one of the conditions was that a public right-of-way walkway was developed.

Should both parties move forward in the legal battle, the judge said he expected a trial would be held within a year.