James Archibald operates a Tug Service called Snow Valley in the Kitimat Habour and Douglas Channel. For years he has experienced difficulty with the Regional District Kitimat Stikine (RDKS) and more specifically, the Manager of the MK Bay Marina, Richard Smeal. When the Alcan owned Moon Bay Marina announced they were closing Archibald attempted again to get moorage at the RDKS owned marina in the Village of Kitamaat. When he was denied moorage, Archibald determined he would buy boats already moored with contracts for the space. This was a heavy expense, over $100,000, but due to his business contracts, involving almost $3 million in the Kitimat economy, he felt this was his only option to stay in business.
After he purchased the vessels he moved them out and moved his Tug boats in. That is when the real troubles began. Smeal untied the tugs and demanded he leave, Archibald however stood his ground claiming he now owned the spots. The RDKS backed Smeal with a lawyer who wrote letters demanding he remove his tugs and the Kitimat Council refused to get involved. Threatened with having someone else tow his tugs out and further hardship to his business, Archibald started a legal action against the RDKS.
Today, November 26, 2010, the Judge hearing the case in Vancouver ruled against the RDKS in four significant areas.
First the RDKS argued the court had no jurisdiction to rule on this issue that the RDKS was free to manage its affairs as it saw fit. The judge dismissed this application and awarded Archibald ‘costs’ for having to argue his case against the application.
Second the RDKS was withholding documents they were relying on for making their decisions and the Court ordered them to produce all the documents in their possession relating to the refusal of providing moorage to Archibald.
Third the Court considered the refusal to provide moorage might be related to issues of bias and discrimination and therefore all persons directly involved in the dispute are to be available for cross examination on their affidavit statements. This includes Bob Marcellin, the Administrator of the RDKS and Richard Smeal along with Archibald and others who wrote affidavits to support both Archibald’s and the RDKS claims.
The last and most important decision made in favour of Archibald is the order to return his access card for the Marina with an injunction to prohibit the RDKS from taking any further action to restrict Archibald and his Tugs from making use of the Marina facilities.
The Court has ordered the cross examinations to take place before the end of February 2011 and the trial date will be set following their conclusion. In the meantime Archibald will be free to conduct his business via MK Bay Marina. Presently he had moved his tugs to a marina inaccessible during low tide water creating serious hardship for his enterprise.
The RDKS has heard many complaints regarding Richard Smeal and the MK Bay Marina. Stories published are still available online along with picture that include a sunken boat and various hazards and damage at the facilities.
At the time of publication our call to the RDKS for comment has not been returned.
Previous stories HERE