Executive Summary: Key Legal and Evidentiary Issues

• Two adjacent resort operators near Malakwa, British Columbia, have spent several years disputing the interpretation of a 2011 easement governing access to a shared suspension bridge over Crazy Creek.
   
• A 2024 application by CCR for an interlocutory injunction was dismissed by Justice A. Ross, who found a serious issue to be tried but no irreparable harm and a balance of convenience favouring Jaff.
   
• Jaff's third-party claim against Barry Siebenga and Crazy Creek Developments Ltd. alleges negligent misrepresentation concerning ownership of the suspension bridge at the time the Jaff Lands were sold.
   
• Efforts by the third parties to have their claim heard separately by summary trial were rejected by Justice Hoffman, who found this would not assist the efficient resolution of the litigation.
   
• Evidentiary gaps surrounding the easement's creation, including unattended examinations for discovery of Alice Bates on behalf of Crazy Creek Developments Ltd., led Justice Hardwick to adjourn rather than decide CCR's 2026 summary trial application.
   
• Jaff was awarded costs in both the 2024 and 2026 decisions, while a preliminary view favouring a costs award to Jaff in the third-party proceeding remained subject to further submissions, and the underlying dispute over the parties' easement rights remains unresolved ahead of a scheduled 2027 trial.
   

Facts of the case

CCR Resort Ltd. and Jaff Family Resort Holdings Ltd. own adjacent parcels of land near Malakwa, British Columbia, each operating a tourism business centred on a suspension bridge spanning Crazy Creek. The bridge, built around 2004, was originally accessed only from what is now the Jaff Lands. In 2011, a pedestrian overpass was constructed connecting a portion of the CCR lands, known as "CCR North," to the bridge, and two easements were registered against the CCR Lands in favour of the Jaff Lands as dominant tenement. At the time, both properties were owned by related entities, and the source decisions differ on who signed the easements and controlled those entities at that time: the 2024 decision identifies Barry Siebenga as the operating mind of both companies and the signatory on the easements, while the 2026 decision identifies Victor (Vic) Bates, principal of Crescent Ridge Holdings Ltd. (later reorganized as Crazy Creek Developments Ltd., or "CCD"), as the signatory [source documents conflict on this point]. Jaff acquired the Jaff Lands in 2020, and CCR acquired the CCR Lands in 2021. For several years afterward, ticket revenue from the bridge attraction was shared between the two businesses under informal arrangements, but this broke down by early 2024 when Jaff began requiring all visitors, including CCR's customers, to purchase a Jaff ticket to cross into CCR North. CCR commenced an action seeking injunctive relief and damages, and Jaff filed a response, a counterclaim, and a third-party notice against Barry Siebenga and CCD, alleging that Siebenga made misrepresentations about ownership of the bridge and boardwalks when the Jaff Lands were sold.

Policy and legislative provisions at issue

The central instrument in dispute is the Bridge Easement (also called the Improvement Easement), registered December 20, 2011, together with a companion Parking Easement registered the same day. The Bridge Easement designates Jaff's lands as the dominant tenement and the CCR lands as the servient tenement, granting Jaff's owners, agents, and invitees rights to enter, pass, and repass over the easement area for access to the suspension bridge and related improvements, and to maintain signage and improvements there, while requiring CCR not to obstruct that access. The parties disagreed over whether this language permits Jaff to exclude CCR's paying customers from CCR North, as opposed to merely protecting Jaff's own physical access. Procedurally, the applications engaged Rule 9-7 of the Supreme Court Civil Rules governing summary trials, including the tests for adjourning or dismissing a summary trial application under Rule 9-7(11) and for granting judgment under Rule 9-7(15), as well as Rule 3-5(15) on third-party issues and Rule 22-5(7) on severance of proceedings. CCR's earlier injunction application was assessed under the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General).

Reasoning and analysis

In the first decision, Justice A. Ross found that CCR had met the low threshold of a serious issue to be tried regarding the proper scope of the easement, but concluded that CCR was not suffering irreparable harm because Jaff had not sought to exclude CCR itself, its owners, agents, or employees from CCR North, and because CCR's losses from lost ticket sales could be calculated from Jaff's ticket-booth revenue records. The balance of convenience favoured Jaff given that bridge ticket sales represented the majority of its income and its ongoing obligation under the easement to insure and maintain the improvements. In the second decision, Justice Hoffman addressed an application by Jaff to adjourn or dismiss a summary trial sought by the third parties, Siebenga and CCD, on their misrepresentation exposure. She held that the third-party issues were factually intertwined with the main action's questions about how the lands were divided, marketed, and sold, creating a risk of duplicated evidence and inconsistent findings between two different triers of fact, and that no urgency or prejudice justified hearing the claims separately. In the third decision, Justice Hardwick considered CCR's own application for a declaration and permanent injunctive relief on the easement's proper interpretation. While acknowledging that easement interpretation is often suitable for summary determination, she found the evidentiary record on the surrounding circumstances of the easement's creation was thin and incomplete, particularly given CCD's limited document disclosure and Alice Bates's repeated failure to attend examinations for discovery. Applying the "modern approach" to contractual interpretation, which requires consideration of surrounding circumstances, she concluded it would be unjust to decide the application on the current record.

Ruling and overall outcome

None of the three decisions resolved the underlying dispute over the parties' rights under the easement. Jaff was the successful party in both the 2024 injunction application and the 2026 summary trial application: Justice A. Ross dismissed CCR's injunction and awarded Jaff its costs of that application at Scale B, payable forthwith, while Justice Hardwick adjourned rather than dismissed CCR's later summary trial application under Rule 9-7(11)(a) and awarded Jaff costs in the cause, assessable on Scale B if necessary — the quantum of those costs was not specified in either decision. In the third-party dispute, Justice Hoffman dismissed the third parties' summary trial application and indicated a preliminary view that Jaff, as the successful party, was entitled to costs, though she invited further submissions before finalizing that award, meaning no specific amount was ordered. No damages have yet been awarded to either CCR or Jaff, as the main action — including CCR's claims for general, special, and punitive damages, and Jaff's counterclaim — remains outstanding and was, at the time of the last decision, scheduled for a 14-day trial in Kelowna commencing in January 2027.