Is there any reason to question the correctness of Whittaker J. in Certain Lands?
British Columbia, Canada
The following excerpt is from Shadybrook Resort Ltd. v. British Columbia (Ministry of Transportation and Infrastructure), 2012 BCSC 1171 (CanLII):
Although Certain Lands was not overturned on appeal, there is, in any event, some reason to question its correctness. In MacDougall v. Lake Country (District), 2011 BCSC 1684, Cole J. dismissed, on the basis that the issues were res judicata, applications for a declaration that the strip of lakeshore was not dedicated as a public highway or park by the same subdivision plan and a declaration that the defendant municipality had no interest in the strip. In reaching his conclusion, Cole J. commented that the decision of Whittaker J. in Certain Lands “may very well have been wrong” (para. 27) but the remedy lay in an appeal which was not taken, rather than attempting to retry the same issue.
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