Vancouver Aquarium parent body sues City of Vancouver and park board, alleging millions in lost revenue

by Charlie Smith on May 18th, 2019

 The Ocean Wise Conservation Association has filed another legal action against two local governing bodies.

The parent organization of the Vancouver Aquarium has alleged breach of contract in a lawsuit naming the City of Vancouver and Vancouver park board as defendants.

Ocean Wise alleges that it has lost $4 million in annual revenues in each of the past two years as a result of the previous park board's 6-1 vote in 2017 to ban the display of cetaceans in captivity.

In its 2017 filings with Canada Revenue Agency, Ocean Wise reported $46,017,194 in revenues.

In its 2016 filings with Canada Revenue Agency, total revenues were slightly higher: $46,512,527. Ocean Wise's filings for the 2018 calendar year have not yet been posted on the Canada Revenue Agency website.

The revenue numbers from 2016 and 2017 include everything from gifts to government grants to amounts received from other charities.

It remains to be seen if the lawsuit could open the door for the city or park board to obtain information about any subsidiary companies that might be fully or partially owned by Ocean Wise.

It will be intriguing to see if lawyers for the city and park board try to determine whether current and former executives of the Vancouver Aquarium may have received compensation from those subsidiaries in addition to what they receive from the Vancouver aquarium.

Two of the commissioners who voted for the ban—Stuart Mackinnon and John Coupar—were reelected in 2018. A third, Casey Crawford, was defeated.

Two others, Michael Wiebe and Sarah Kirby-Yung, were elected to Vancouver city council in 2018. A sixth, Catherine Evans, lost her bid to be elected to city council.

The only commissioner to vote against the majority was Erin Shum, who was defeated in 2018 as an independent candidate for Vancouver city council.

The board passed this measure while the Vancouver Aquarium was in the midst of a $100-million expansion to its footprint in Stanley Park.

In its lawsuit, Ocean Wise has alleged that this has led to a 13 percent decline in attendance in each of the last two years.

None of the plaintiff's allegations have been proven in court. The city and the park board have not yet filed statements of defence.

Previous ruling upheld city and park board appeal

Earlier this year, a three-judge panel on the B.C. Court of Appeal unanimously ruled in favour of the City of Vancouver and Vancouver park board in another action filed by Ocean Wise.

In that case, the court upheld the park board's authority to regulate the display of cetaceans in Stanley Park, which overruled an earlier decision in B.C. Supreme Court.

Cetaceans include whales, dolphins, and porpoises.

Ocean Wise had argued that its licensing agreement with the park board precluded commissioners from imposing their will in this area.

In the new lawsuit, Ocean Wise alleges that its agreement with the park board allows for the display of cetaceans.

The B.C. Court of Appeal remitted the case back to B.C. Supreme Court to issue a ruling on three other grounds brought forward by the aquarium:
* the bylaw amendment "offended procedural fairness";
* the bylaw amendment should be voided for "vagueness";
* and that the bylaw amendment infringed on the aquarium's right to freedom of expression under the Canadian Charter of Rights and Freedoms.

After the B.C. Court of Appeal issued its ruling, Vancouver park board chair Stuart Mackinnon said in a media release that the amendment was "thoughtful and reflective of public opinion".

The aquarium's recently retired CEO, John Nightingale, announced in 2018 that the organization planned to phase out the display of whales and dolphins.

"The ongoing discussions about whales and dolphins in our care have been a distraction from real threats to the ocean and have sidelined the critical work we lead," he wrote on the organization’s website. "We aim to inspire people in every corner of the planet to participate in creating healthy oceans, and it’s time to get on with it."

That statement came after the deaths of several marine mammals at the aquarium over a three-year period.

The fatalities included a harbour porpoise named Jack, a dolphin named Hana following bowl surgery, a false killer whale named Chester, and beluga whales named Aurora and Qila.

(2019) The Georgia Straight