The legal battle over Vancouver Park Board’s 2017 bylaw banning cetaceans continues with Vancouver Aquarium filing a lawsuit against the park board and City of Vancouver this week claiming breach of contract and millions in financial losses.

The lawsuit, filed in B.C. Supreme Court May 14, almost two years to the day since the ban was imposed, outlines several claims, including a 13 per cent decline in attendance in 2017 and 2018. Based on 2016 admission rates, the suit claims, the decline equals a loss of nearly $4 million in revenues each year.

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According to court documents, since 1955 the aquarium in Stanley Park has operated under a series of licence agreements. The latest agreement has been in place since 1999, but was amended in 2009 and 2011 to allow for a planned $100-million expansion project, which included renovating and expanding the cetacean area.

Ocean Wise Conservation Association (parent organization of Vancouver Aquarium) claims the keeping and display of cetaceans at the aquarium is allowed under the agreement and by enacting the cetacean ban in 2017 the park board interfered with the permitted uses of the agreement and with the aquarium’s “ability to carry out the day-to-day administration if the Marine Science Centre without interference from the Park Board.”

Under the amended agreement, the aquarium pays two licence fees — a fixed annual fee of $150,000, which increases by $25,000 every five years, and a monthly fee based on a percentage of food and beverage sales. Prior to the 2009 amendment, the aquarium paid a single fixed annual fee of $40,000.

The lawsuit states, since 2012 the total annual fee paid by the aquarium has exceeded $1.5 million.

“Despite changes to its permitted uses under the Licence Agreement, the Vancouver Aquarium has continued to pay combined annual licence fees to the Park Board and City in excess of $290,000.”

Expansion project

The first phase of the $100-million project, which included $2.75 million spent on improving facilities and system for cetaceans, was completed in 2014. The second phase, which included the expansion of cetacean habitats, was scheduled to begin in the fall of 2017.

Vancouver Park Board commissioners voted 6-1 on May 15, 2017 to ban the importation of new cetaceans to city parks and prohibit performances.

Ocean Wise claims that as a result of the cetacean ban that spring, the aquarium had to write off $2.2 million in design and consulting costs in planning for a “Canada’s Arctic” habitat for cetaceans; lost a $7.5-million private donation that had been previously committed in support of the new exhibit; and, incurred additional costs to alter the plans for the second phase of the expansion and repurpose existing facilities to be used by other aquatic animals.

The lawsuit claims the City of Vancouver had “actual or reasonable knowledge” of the park board’s impending bylaw and failed to take steps to prevent its enactment.

“As a result of the Bylaw Amendment, together with the City’s acquiescence or failure to prevent the Wrongful Interference, the Vancouver Aquarium has suffered and continues to suffer loss and damage…”

Ocean Wise is seeking an unspecified amount in damages.

None of the claims have been proven in court and the city and park board have not yet filed a response.

“The Park Board is reviewing the claim with legal counsel and considering its options going forward,” the board said in an email to the Courier. “The Park Board will have no further comment while this matter is before the courts.”

Ocean Wise issued a similar statement when contacted by the Courier.

"As this matter is currently before the B.C. Supreme Court, Ocean Wise is not in a position to provide additional details on this proceeding at this time."

Previous legal decisions

The lawsuit is just another step in the legal battle that ensued after park board commissioners approved the ban two years ago.

The aquarium launched legal proceedings in June 2017 in an effort to have the ban overturned. And in February 2018, a B.C. Supreme Court judge ruled in favour of the aquarium, striking down the bylaw stating the park board does not have the power to enact the bylaw amendment as it conflicts with the licence agreement.

The park board appealed the decision arguing that the ruling posed a real and substantial challenge to the legal power and authority of the elected board. B.C. Court of Appeal agreed, ruling that the judge erred in his decision, and upholding the ban.

The aquarium announced last year that it will stop displaying cetaceans.

Helen, a Pacific white-sided dolphin, is the only cetacean left living at the aquarium.

This story has been updated since it was originally posted.

@JessicaEKerr

jkerr@vancourier.com