We are pleased to have helped our clients win their battle with a trespasser after a 2-week trial in BC Supreme Court.
From the article:
‘Court evicts corporate squatters from Okanagan Indian Band land — after 26 years!’
The B.C. Supreme Court has finally ended a staggering act of trespassing that saw developers brazenly erect a trailer park on Okanagan Indian Band land and operate it for nearly 30 years.
In an 11,000-word decision that beggars belief, Justice Gary Weatherill said the dispute was the result of a bitter family feud, a skein of complicating court orders and the Byzantine rules governing reserve land.
The ruling ended a three-decades-long squabble over the 40-acre mobile home park just east of Highway 97N on the Duck Lake Indian Reserve No. 7 on the outskirts of Kelowna.
“Without a valid head lease in place (662777 B.C. Ltd. and Braunfel Construction Ltd.) have been operating Creek Run Park illegally,” the justice said. “To add to the insult, the companies have habitually failed to properly compensate (those who had rights to the land), have failed to maintain the Creek Run Park in accordance with safety, sanitary and electrical standards, and have taken advantage of the Simpson family.”
Weatherill maintained the lengthy suit was a prime example of the importance of complying with the complex processes, procedures, protections and rules set out in the Indian Act when non-band members seek to do business on reserve lands.
“Despite discussions, arrangements and interim agreements over the past 26 years, the companies have never obtained a registered head lease from the minister of Indigenous Services (as it is now called) on behalf of the federal Crown authorizing the Creek Run Park to operate on the lands,” Weatherill concluded.
He ordered the companies removed and the Simpson family — members of the Okanagan Indian Band — compensated although that is unlikely.
“In classic fashion of someone who sets up a business to siphon the money and profit, it’s all disappeared,” their lawyer, Jaimie Kidston, complained. “You can see from the decision they didn’t provide financial documentation, they had multiple different numbered companies to try and avoid the consequences of this. It was bad faith all along. Still, the family is really happy with the result. They can’t even express it with words.”
The litigation has long, tangled roots — hundreds of documents provided the chronology, and the parties filed a detailed agreed-statement-of-facts about the saga that began in late 1989.
While Indian lands are held for the band as a whole, lots of reserve land may be granted to band members through a “certificate of possession” issued under the Indian Act after a decision by the band council and the Crown’s approval.
A member of the Okanagan Indian Band, the late Herbert Simpson, had such a certificate for the land and, in 1989, he and his daughter Maureen Ziprick reached a deal to share it between them.
But they fell out and Simpson, who died in 2011, sued Ziprick to have the deal set aside.
He lost. The pact was valid, though the court concluded the one-half share given to Ziprick was actually a trust for her and her three sisters — Leona, Roberta and Karen.
Each sister held a one-quarter share of the half interest and, in July 2007, Herbert executed a will leaving his interest to two of Karen’s children.
The complications began in 1993 after Simpson and Ziprick signed a letter of intent with two brothers from Alberta, Larry Hrabchuck and Ron Swetz, and their company, Braunfel Engineering and Construction Ltd. (BECL), to develop a mobile home park.
Under the Indian Act, however, a valid lease required input from the band and the Crown’s approval.
The father and daughter fell out over the $30,000 down payment because Ziprick thought it too low.
In November 1993 she resiled from the letter of intent and sought an injunction to stop BECL from proceeding.
Nevertheless, the company built a ramp off Highway 97, a bridge, roads, mobile-home pads, and water, sewer and electrical infrastructure, triggering more litigation.
In 2003, shares in BECL were transferred to a related firm, 662777 B.C. Ltd., owned by Swetz and his wife, Vicki O’Brien, who operated the park until June 2011.
The companies were sold in 2011 to Gordon DeFehr and BECL’s name was changed to Braunfel Construction Ltd.
DeFehr reputedly paid $2,500 down for the trailer park, which then had 34 pads, and promised to pay the balance of the $1.2-million purchase price from rent receipts.
In summer 2014, in spite of continuing disagreements, DeFehr significantly expanded Creek Run, almost tripling its size to its current 81 lots.
Representing the companies at trial, DeFehr argued the park was developed based on assurances from the Simpsons.
Weatherill said the initial development should never have proceeded: “The original discussions that took place between Herbert and (BECL) in 1993 resulted in a tentative buckshee agreement at best.”
DeFehr shouldn’t have got involved without ensuring a lease was in place, the justice added: “I conclude that Mr. DeFehr is the author of his own misfortune. It should come as no surprise to him that sooner or later, he would have to vacate the lands.”
He awarded $250,000 plus interest in damages for trespass and loss of the use of the lands, but Kidston held out little prospect of collecting given the financial sleight-of-hand.
Weatherill found DeFehr ran the park into the ground and siphoned off as much money as possible pending the predictable outcome of the suit.
“It is apparent that the companies have no assets and are effectively judgment proof,” Weatherill pointed out.
Kidston said the park, which needs significant repairs, was operating under a receiver.
“It’s quite likely in the short term there are going to be no changes, the status quo, the tenants can keep living their lives, but we don’t know what the plan will be for the whole area at this time,” Kidston said.
DeFehr couldn’t be reached for comment.
Originally posted on the Vancouver Sun: https://vancouversun.com/opinion/ian-mulgrew-court-evicts-corporate-squatters-from-okanagan-indian-band-land-after-26-years/wcm/a30ef084-224c-42ea-a787-b39a1fba0054/