The B.C. Supreme Court has granted an injunction allowing local helicopter company Spearhead Aviation to continue using the Whistler Municipal Heliport.
On Friday, Sept. 20, Judge Justice Church granted the injunction prohibiting the Whistler Heliport Society (WHS), which governs and operates the heliport on behalf of the municipality, from excluding or interfering with Spearhead's occupation or use of the property until a later trial.
The case stems from a fractious dispute that has engulfed Whistler's heliport for months. A public asset, the heliport was originally divided into five zones that are leased to certified helicopter operators. In 2014, Spearhead, which was then owned by local aviator Mike Quinn, entered into an agreement with the WHS to sublet a sixth zone at the heliport that was originally created for the Canadian military to use during the 2010 Winter Olympic and Paralympic Games. In December 2017, Denis Vincent, owner-operator of Coast to Coast Holding Ltd., became the principal shareholder of Spearhead.
At the root of the issue is the WHS' contention that Spearhead's continued use of the heliport constitutes trespassing. The society takes the position that Spearhead was not in compliance with its lease because it was not a member in good standing at the WHS. The society submits that Spearhead failed to lease or own a helicopter, failed to provide a certificate or registration and did not hold an Air Operators Certificate, all criteria for membership.
"I am not persuaded by the submissions of WHS that 'the evidence leaves no doubt as to the existence of a prima facie case of trespass.' On the contrary, it is not clear from the evidence that Coast to Coast has, in fact, been occupying the property," Judge Church said in her ruling. "Spearhead asserts that it is the entity occupying the property and if Coast to Coast is on the property, it is there as an invitee rather than as a subtenant, which is not prohibited under the terms of the lease."
The judge also found that the evidence WHS provided "as to the occupation of the property is not strong," appearing to be limited to a statement in the affidavit of WHS president Dylan Thomas that Coast to Coast had used a portion of the heliport continually since Dec. 26, 2017, the same date a helicopter owned by Helispar Inc. was moved onto the WHS property sublet by Spearhead.
"As I have already noted there is a joint venture agreement between Helispar Inc., Coast to Coast and Spearhead with respect to helicopter operations at Whistler. There is nothing in the Spearhead lease restricting it from carrying on business on its leased property in a joint venture or having another company's helicopter located on its property," the ruling reads.
On May 16, 2017, Spearhead was dissolved for failure to file its annual return. The WHS contends that Spearhead ceased to be a member in good standing as a result. Spearhead's status was restored in January 2018.
"... (I)f Spearhead had remained dissolved there is no question that its membership in WHS would terminate ... However, where restoration occurs, the corporation is revived and deemed to have existed throughout. If that is the case here, Spearhead has a strong prima facie case that as a result of its restoration in January 2018, its membership in WHS continued uninterrupted to the present and that it did not breach the terms of its lease on this ground," Judge Church ruled.