Executive Summary: Key Legal and Evidentiary Issues

• Application to stay a tree removal project in Stanley Park was dismissed twice — first by Justice Horsman and then on a variation application by a three-justice panel

• Competing claims of irreparable harm were central, with the appellants arguing that felling and removing trees is irreparable and the respondents arguing that failing to remove trees causes irreparable harm

• The three-part RJR-MacDonald test governed both applications, requiring a serious question to be tried, irreparable harm, and balance of convenience

• Balance of convenience favoured the respondents due to potential park closures during peak tourist season, financial disruption, and interference with the Park Board's statutory mandate

• Cross-examination of the respondents' affiant was denied at both hearing levels, with the Court confirming that parties do not have a right to cross-examine in the Court of Appeal

• On the variation application, the appellants failed to demonstrate any error in law, principle, or misconception of the facts in the original order

The Hemlock Looper Moth outbreak and the tree removal project

Beginning in 2019, a Hemlock Looper Moth infestation significantly impacted the forest in Stanley Park from 2019 to 2022, killing many trees. The Hemlock Looper Moth devours the leaves of conifer trees that are common in Stanley Park. In response, the City of Vancouver and the Vancouver Board of Parks and Recreation authorized a tree removal project based on concerns that dead or dying trees in Stanley Park threaten public safety due to falling trees or branches and increase the risk of wildfire. In September 2023, Park Board staff negotiated a supply agreement, on behalf of the City, with a third-party contractor, B.A. Blackwell & Associates Ltd., to commence tree removal, which began in October 2023. Approximately 7,000 trees were removed from Stanley Park under this first supply agreement, referred to as Phase 1 of the project. In January 2024, Blackwell submitted a report that contemplated the removal of up to 160,000 trees from Stanley Park over the following three to five years in two further phases. In June 2024, following a request for proposals, the City entered into a second supply agreement with Blackwell to do further tree removal work contemplated in the Blackwell Report.

The Park Board resolutions and public process

The Park Board passed three key resolutions at public committee meetings: a resolution on October 8, 2024, approving Phase 2 as set out in the Blackwell Report and initiating a competitive procurement process for Phase 3; a resolution on December 9, 2024, accelerating the Phase 3 work following a November 2024 windstorm; and a resolution on July 21, 2025, authorizing the Phase 3 work and authorizing the City to contract with Blackwell to do this work. The record on each occasion included multiple reports and presentations on the appropriate response and mitigation plan, as well as representations by members of the public including the appellants. Phase 2 of the tree removal project and the accelerated Phase 3 work approved on December 9, 2024, was completed between January and April 2025. The remaining Phase 3 work authorized by the Park Board was scheduled to begin in October 2025 but was delayed pursuant to an agreement between the parties to temporarily halt the work during the currency of the petition. On November 3, 2025, the Park Board approved the monetary amount of the contract that the July 21, 2025, resolution directed staff to negotiate.

The judicial review and appeal

The Stanley Park Preservation Society, along with individual petitioners Michael Robert Caditz, Katherine Rose Caditz, Anita Ahlmann Hansen, and Jillian Margaret Maguire, applied for judicial review in the British Columbia Supreme Court. They sought declarations that the contracts for the first two phases of tree removal were not authorized, and orders quashing two Park Board decisions made in 2025 respecting completion of the third phase of the project that had not yet occurred. On December 17, 2025, the chambers judge dismissed the judicial review application. He found the first two phases of tree removal were authorized, the Park Board did not breach a duty of procedural fairness to the applicants, and its July 21, 2025, resolution was reasonable. The chambers judge concluded that the Park Board's decision was "clearly intelligible, justified based on the extensive record, and was made transparently during a public meeting." The appellants appealed only the chambers judge's refusal to set aside the July 21, 2025, Park Board resolution.

The stay application before Justice Horsman (2026 BCCA 21)

On January 9, 2026, Justice Horsman heard the appellants' application to prohibit the respondents from continuing Phase 3 of the tree removal project pending the determination of their appeal, applying the RJR-MacDonald test. The respondents conceded that the appeal met the low "not frivolous" standard, though Justice Horsman noted that the appeal would be a difficult one for the appellants and would not assess their appeal as a strong one, given that the impugned resolution was passed by an elected body tasked with making decisions in the public interest, and there was an extensive record before the Park Board. On irreparable harm, the appellants argued that "it is self-evident" that felling and removing trees is irreparable, while the respondents argued there was a countervailing and overwhelming harm to the public if the Phase 3 work was halted. Justice Horsman determined this form of harm was best assessed at the balance of convenience stage of the RJR test. The appellants relied on affidavits from Norman Oberson, a professional arborist, and Rhonda Lorraine Millikin, who has a Ph.D. in physics and environmental sciences and holds a certification for soil biology assessments. Each of these individuals conducted a single site visit to Stanley Park in late December 2025. Mr. Oberson opined that the risk to public safety would not increase if the Phase 3 work was stopped, provided that Park Board staff conduct tree risk assessments and mitigation in the normal course. Ms. Millikin opined that wildfire risk will decrease if the Phase 3 work is suspended. The respondents provided an affidavit of Amit Gandha, the Director of Parks for the Park Board, who detailed that further delay would necessitate closure of areas of Stanley Park to limit public safety risks at a time when demand for park access is at its peak, that Phase 3 mitigation work cannot be undertaken from April to October 2026 because it will interfere with the bird-nesting season, and that the Phase 3 contract with Blackwell has been executed and is valued at approximately $4.5 million. The appellants sought an order directing cross-examination of all three affiants, but Justice Horsman was not prepared to order cross-examination, noting that the appellants were asking the Court to effectively override the Park Board's assessment based on opinion evidence that does not form part of the record of judicial review, which would take the Court beyond its limited role in the context of a judicial review proceeding. Justice Horsman concluded the balance of convenience weighed against issuing a stay and dismissed the application.

The variation application before the Court of Appeal panel (2026 BCCA 85)

The appellants then applied to vary Justice Horsman's order before a three-justice panel of Justices Iyer, Gomery, and Brundrett, heard on February 11, 2026. They argued Justice Horsman erred in three ways: relying on the impugned decisions of the Park Board in weighing the balance of convenience; denying cross-examination of Mr. Gandha; and giving greater weight to Mr. Gandha's evidence than to the evidence of their affiants. Justice Iyer, writing for the unanimous panel, noted that an application to vary under s. 29 of the Court of Appeal Act is not a re-hearing of the original application, and the reviewing court may not intervene unless the applicants show the judge was wrong in law, wrong in principle, or misconceived the facts. On the first issue, the Court found that the decision of the Park Board under appeal was not irrelevant to the consideration of the balance of convenience, as the Supreme Court of Canada said in RJR that the existence of a risk to public harm is a relevant consideration, and the Park Board had determined that such a risk exists. On cross-examination, the Court confirmed that while cross-examination is available under Rule 44 of the Court of Appeal Rules, it is rarely ordered, and as a discretionary decision, the standard of review is very deferential. The Court stated that parties do not have a right to cross-examine in the Court of Appeal and found no basis to interfere with Justice Horsman's exercise of discretion. On the weighing of evidence, the Court held that the appellants' argument that Justice Horsman should have weighed the evidence differently does not show an error in law or principle, or a misconception of the facts.

The ruling and outcome

The variation application was unanimously dismissed on February 13, 2026, with all three justices agreeing. The Vancouver Board of Parks and Recreation and the City of Vancouver prevailed as the successful parties in both interlocutory applications. The Court acknowledged the appellants' deeply felt opposition to the tree removal project and noted that they have engaged all legal mechanisms to advance their cause, including the ongoing appeal. The dismissal of their variation application does not address the merits of the appeal. No specific monetary award was ordered in favour of either party in these interlocutory proceedings, though the Phase 3 contract at issue was valued at approximately $4.5 million.