Wait begins for judge's decision in asphalt trial

Whistler Aggregates lawyer argues petition against plant should go to full trial or be thrown out

A B.C. Supreme Court judge reserved her decision Tuesday (Nov. 22) on Whistler's asphalt plant petition.

Justice Deborah Kloegman heard arguments in chambers from lawyers for the Resort Municipality of Whistler and Whistler Aggregates over two days at the Law Courts in Vancouver about whether the dispute should go to trial.

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RMOW filed a petition against Whistler Aggregates on June 20, seeking a permanent injunction against the plant under the IP1 zoning. The municipality claims the zoning only allows the manufacture of gravel and aggregate, but not asphalt, and storage of industrial machinery, equipment and supplies for the gravel and aggregate process. RMOW based its case on the Zoning and Parking Bylaw, Community Charter, Environmental Management Act and Asphalt Plant Regulation.

Whistler Aggregates president Frank Silveri claims RMOW officials allowed the asphalt plant to exist beside Cheakamus Crossing, the former 2010 Winter Olympics athletes' village, but behind closed doors expressed concerns about the smell and its impact on neighbours.

The July 12 filed response by Whistler Aggregates said one of the Alpine Paving plant's major customers is RMOW and the company had municipal blessing to make asphalt by mixing aggregate from granite with sand and bitumen.

Municipal subsidiary Whistler 2020 Development Corporation worried in 2007 about the proximity of the asphalt plant to the housing project, two years before buyers complained. Silveri's affidavits include minutes of WDC meetings that said the plant should be moved after the Games.

As the hearing waned on Tuesday afternoon, Silveri's lawyer Charles Willms argued that the adversarial process used in court is based on the rules of disclosure among the parties, but in a petition setting, you get "what they think you should get."

Willms said he was provided the bylaw file, but doesn't know if it contains all the relevant documents.

"What else might there be other than the bylaw file?" Willms asked the court. "We cannot be sure that the whole picture is before this court with respect to zoning."

Willms said three-quarters of Silver's affidavit was gained through Freedom of Information requests and internet searches.

"Who knows what else is there," he said.

RMOW lawyer Randall Hordo said files were thoroughly searched for relevant documents.

"I don't know what we would do if we had a demand for discovery of documents," Hordo said.

Said Kloegman to Willms: "When we're talking about the early stages, it's what it is. What you're hoping to find on a fishing expedition is maybe someone contradicted themselves."

Willms ultimately wants the action dismissed or put to trial.

Willms claimed in court filings that Whistler Aggregates decided April 12, 1997 to move to the property and Silveri disclosed the intention to make asphalt to RMOW. He was told May 7, 1997 that asphalt was permitted under IP1 zoning. Not until April 11, 2011 did RMOW assert that asphalt was not permitted on the property. The next month behind closed doors, RMOW council authorized the civil action against Whistler Aggregates.

Kloegman offered no hint about when she will render a decision.

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