Okanagan Lake Boardwalk will remain blocked by the restaurant door

The city of Kelowna has yet to convince a judge that the Eldorado Hotel shouldn’t prevent the public from using the waterfront promenade that runs through its outdoor patio.

This is the second time the city has taken the case to a judge, the first time in October 2021 after the hotel restaurant blocked public access to the walkway along the shores of Okanagan Lake for approximately 18 months.

The hotel claimed it was a response to COVID-19 health orders, when the city brought them to justice without success to reopen the doors.

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Judge Ruling On Legal Dispute Between City Of Kelowna And The Eldorado Hotel

British Columbia Supreme Court Justice Paul Riley authorized the closure based on, among other things, provincial health orders and ruled the boardwalk could be closed all day if the patio was open to customers.

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The city asked the court to reconsider that decision in a December 1, 2021 hearing for a variety of reasons – in part due to the relaxation of health orders and what they argued was a misunderstanding of the law. and a misperception of what the Eldorado was facing in terms of customer volume.

The judge was not swayed by their point of view, emphasizing that restaurant workers are obligated to ensure that a customer has proof of vaccination for fear of being fired.

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“It’s relatively easy to do in a normal indoor environment. It’s also relatively easy to do in an outdoor setting with physical barriers, or controlled access, or a clear geographic boundary between public space and restaurant space, ”Riley said in part of her ruling.

“It’s much more difficult in the context of an outdoor space without physical barriers, controlled access and no geographic boundaries between members of the public simply using the lakeside walkway and those intending to frequent the venue. outdoor dining of the accused. “

The city also claimed that the restaurant was not always as busy as it had claimed and that the initial decision did not follow the instructions given in good faith.

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The hotel offered a series of reasons that Riley widely accepted.

In the Jan. 5 decision, however, Riley adjusted the directions set for the Eldorado.

“The defendant is authorized to block public access to the lakeside walkway on days when the defendant’s outdoor dining room is open for business,” Riley said in its decision.

“In this regard, the defendant’s staff must make a preliminary decision on whether or not to open the outdoor dining room for business before 7 a.m. each day, and whether the decision is not to open for business. business, the defendant should promptly ensure that public access to the Lakeside Walkway is not restricted.

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A judge rules on a legal dispute between the city of Kelowna and Eldorado

A judge rules on a legal dispute between the city of Kelowna and Eldorado – October 13, 2021

Eldorado staff will also need to make the final decision whether or not to open the Outdoor Dining Room for business by 11:00 a.m. each day, and if the final decision is not to open business, Eldorado will promptly ensure that. that public access to the lakeside walkway is not restricted.

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The judge also said that the Eldorado must at all times ensure that the signage at each end of the lakeside walkway is in place when public access is blocked under this order, and that it is deleted when public access is authorized under this ordinance.

The case should still go to trial, according to the judge, where the focus is on whether the Eldorado is legally obliged to provide public access to the promenade.

The company claims that the right of way declaration is invalid and unenforceable.

The city says it gave the previous owner permission to develop the marina under an agreement where one of the conditions was that a public right-of-way walkway be developed.

If the two sides move forward in the legal battle, the judge said he expected a trial to take place in a year.

© 2022 Global News, a division of Corus Entertainment Inc.

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