Executive Summary: Key Legal and Evidentiary Issues

• The YMCA applied to dismiss the plaintiffs' action for want of prosecution under Rule 22-7(7) of the Supreme Court Civil Rules, citing approximately 15 years of delay since the action was commenced in 2010.
• Despite finding the delay inordinate and largely inexcusable, the court declined to dismiss the action, holding that the interests of justice favoured allowing the case to proceed on its merits.
• Prejudice to the YMCA was found to be limited, given that the case is expected to rely heavily on historical documents, records, and expert evidence rather than oral testimony.
• Separately, the plaintiffs applied for an interim injunction requiring the YMCA to open, and refrain from closing, a gate on Glinz Lake Road; the court characterized the relief sought as mandatory in substance.
• Applicants failed to establish a strong prima facie case or irreparable harm, both of which are required for a mandatory interlocutory injunction to issue.
• Costs in respect of both applications were ordered in the cause, with the YMCA's bid for special costs dismissed.

Facts of the case

The plaintiffs, Jaico Corp. ("Jaico") and 1352115 Alberta Ltd. ("1352115"), are registered owners of Section 59 of the Goldstream District, a parcel of land located north of Glinz Lake in British Columbia's Capital Regional District. They are also owners and operators of Victoria Teleport Corporation ("VTC"), a company that wishes to install a wireless telecommunication antenna on Section 59. The defendant, YMCA – YWCA of Greater Victoria, Inc. ("YMCA"), is a charitable society incorporated under the Societies Act, S.B.C. 2015, c. 18. It owns seven properties in the Goldstream and Sooke Districts, purchased between 1935 and 1960, and also occupies Section 58 under a long-term lease with the Province dated March 10, 1988. These lands collectively form the Y Outdoor Centre and Camp Thunderbird (the "Camp"), which the YMCA has operated since approximately 1935.

The central dispute concerns the plaintiffs' attempt to access Section 59 via a road passing through Sections 53, 54, 56, 57, and 58 — referred to in the pleadings as "Settler's Road" or "Glinz Lake Road" depending on the relevant segment. It is undisputed that the YMCA erected a gate on the Road at Block A, Section 59, Sooke District, and has maintained it for more than 50 years. In the underlying action, the plaintiffs seek a declaration that the Road is a public highway 20 metres in width, an injunction prohibiting the YMCA from blocking it, and damages for trespass or nuisance. In the alternative, they seek a grant of easement of necessity or an easement by prescription over the Road.

The action was commenced on December 17, 2010 by Jaico, 1352115, I.M. Sherwin Ltd., and 1353067 Alberta Ltd. against the YMCA, the District of Metchosin, the Capital Regional District ("CRD"), and the Province. The litigation proceeded slowly: four trial dates were set and adjourned between 2012 and 2021, and no substantive steps were taken between November 2015 and October 2019, and again between March 2021 and mid-2024. The action against Metchosin and Sooke was discontinued in June 2014. In July 2025, the two defunct plaintiffs — I.M. Sherwin and 1353067 — and two non-responsive defendants were removed from the action. The plaintiffs filed a notice of discontinuance against the CRD on June 3, 2025, following a settlement. A 15-day trial has been scheduled to commence in April 2027.

Relevant statutory provisions and correspondence at issue

Section 42 of the Transportation Act, S.B.C. 2004, c. 44, is engaged by the plaintiffs' allegation that public funds were expended on the Road, which would deem it a highway under that provision. Also relevant is a letter dated April 11, 1997 from the Minister of Transportation and Highways to former plaintiff Mr. Sherwin, in which the Minister confirmed that a portion of the Road is classified as a public road from its intersection with Sooke Road to Glinz Lake within the YMCA property, and that the YMCA was given permission to erect a gate in order to control vandalism, with assurances that public access to the lake and roads beyond would not be denied.

Court's reasoning and analysis

Two applications were before the court: the YMCA's application to dismiss the action for want of prosecution, and the plaintiffs' application for an interim injunction.

On the want of prosecution application, the court applied the three-part test from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473, as summarized in Kaur v. Residential Tenancy Branch, 2025 BCSC 473: (a) whether the delay was inordinate; (b) if so, whether it was excusable; and (c) whether the interests of justice nonetheless favour allowing the action to continue. The court had no difficulty finding the delay of approximately 15 years inordinate. On inexcusability, the court accepted that approximately one year of delay was excusable — attributable to counsel changes and internal case review — but found the majority of the delay unexplained, particularly the period between 2015 and 2019. The court rejected the YMCA's characterization of the plaintiffs' pursuit of parallel mineral tenure proceedings as a deliberate tactical decision, finding the record insufficient to support that inference.

On the interests of justice analysis, the court weighed several factors. Prejudice to the YMCA was found to be limited: while the YMCA's witness Martin Chambers, who attended the Camp in the 1940s and early 1950s, passed away in 2022, the plaintiffs' case is expected to rely primarily on historical records, maps, and correspondence rather than oral testimony. The court found that the loss of the plaintiffs' own witnesses generally worked in the YMCA's favour rather than against it. The advanced stage of the litigation — including voluminous document production, multiple amended pleadings, notices to admit, examinations for discovery, and a scheduled 2027 trial — weighed against dismissal. The court also noted that the YMCA itself contributed to delay by causing the adjournment of the Second Trial Date through late amendments, and consented to adjournments of the Third and Fourth Trial Dates. The non-expiry of limitation periods on the declaratory and easement claims was an additional factor, as dismissal would not preclude the plaintiffs from simply refiling. Balancing these factors, the court concluded that the interests of justice did not support depriving the plaintiffs of an adjudication on the merits.

On the injunction application, the court considered whether the relief sought was mandatory or prohibitive. The plaintiffs framed the injunctions as prohibitive — requiring the Gate not to be closed — but the court found them mandatory in substance, as their overall practical effect would require the YMCA to alter a 50-year practice of monitoring Camp access by opening and keeping the Gate open. The modified RJR-MacDonald test therefore applied, requiring the plaintiffs to establish a strong prima facie case. The court found they had not done so: while the YMCA had made admissions in response to notices to admit regarding a public road segment beyond the Gate, the precise northern terminus of any public road remains a live trial issue, and Section 59 lies significantly farther north than either the Camp's entrance or Glinz Lake. The court was therefore not satisfied of a strong likelihood of success at trial. Separately, the court found that irreparable harm had not been established. No evidence of damage or loss from the Gate's continued operation was tendered, the Gate was already in existence when the action commenced in 2010, and the plaintiffs' own discovery evidence confirmed that their expert surveyor had in fact been granted access beyond the Gate and completed a survey. The court found that the balance of convenience favoured preserving the status quo, noting that the YMCA tendered evidence of its ability to satisfy any eventual damages award whereas no equivalent evidence was provided by the plaintiffs.

Ruling and overall outcome

The Honourable Justice Laurie dismissed both applications. The YMCA's application to dismiss the action for want of prosecution was refused, with the court holding that despite inordinate and largely inexcusable delay, the interests of justice favoured allowing the action to proceed. The plaintiffs' application for an interim injunction was likewise dismissed for failure to establish a strong prima facie case, irreparable harm, or a favourable balance of convenience. The YMCA, as the successful party on both applications, did not obtain an award of special costs; the court declined the YMCA's request for special costs in relation to the injunction application, finding that although the plaintiffs' reference to criminal intimidation in their notice of application was unsupported and misguided, it was not advanced in oral argument. Costs in respect of both applications were ordered in the cause — meaning no specific monetary amount was awarded at this stage, and the costs will be determined in accordance with the outcome of the trial.