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Trouble in the air

Fractious legal dispute engulfs Whistler's municipal heliport
municipal heliport Whistler's municipal heliport is governed and operated by the Whistler Heliport Society, a non-profit that is led by seven directors. photo by dave buzzard / <a href=""></a>

The Whistler Municipal Heliport has, for months, been at the centre of a fractious dispute between its governing body and a local helicopter company that has recently spilled into B.C.'s Supreme Court.

The municipal heliport is a community asset that was built with federal and provincial funds. It was originally divided into five zones that are leased to certified helicopter operators.

It is governed and operated by the Whistler Heliport Society (WHS) board, which is made up of seven directors.

Currently, Blackcomb Helicopters (a division of Blackcomb Aviation) controls three of the five original leases, while Whistler Heli-Skiing controls the other two. Whistler Heli-Skiing, however, does not own nor lease any helicopters and instead hires Blackcomb Helicopters for its clients. In order to be considered a society member in good standing, the original WHS bylaws required members to meet one of the following criteria: to own or lease a helicopter in B.C., or be certified to operate a helicopter.

In February, the WHS filed a notice of claim in B.C. Supreme Court against Coast to Coast Holding Ltd. (CTC) and owner-operator Denis Vincent, asking for an injunction against Vincent and CTC from using the heliport.

In its statement of claim, the WHS alleges that Vincent's use of the heliport beginning on or about Dec. 26 of last year constitutes trespassing, arguing that his company had no valid lease and is not a WHS member in good standing.

The statement claims that Vincent and CTC were using a portion of the heliport formerly leased by Spearhead Aviation, and that since the lease was "expressly non-transferable," it considers the terms of the lease to have been broken. The statement also argues that Spearhead's rights to use the heliport expired when the company was dissolved in May 2017 because the company had failed to file annual reports for two years.

"As a result of the trespass on the property by Vincent and CTC, WHS has suffered and continues to suffer loss and damage," the claim states. The WHS is seeking general and special damages in its suit.

On March 27, CTC and Vincent filed a response with the court, arguing Vincent has not used any part of the heliport property or, if he did, it was pursuant to Spearhead's lease in Vincent's capacity as operator of Spearhead.

According to the response, Spearhead was originally owned by Mike Quinn, former owner of Whistler Air, and in 2014 it entered into an agreement with the WHS to sublet a sixth zone at the heliport that was originally created for the Canadian military to use during the 2010 Winter Olympic and Paralympic Games.

Quinn transferred his shares in Spearhead to Washington-based pilot Will Graven in December of 2015. Vincent purchased Spearhead from Graven in December 2017.

Vincent and CTC's filing also claimed the dissolution of Spearhead was due to "accident, surprise or mistake" and that Spearhead was restored as a company in B.C. in January 2018.

The CTC response filed with the court also alleges that the WHS has been operating the municipal heliport as a "monopoly" on behalf of Blackcomb Helicopters.

"The WHS has its genesis in public funds and occupies public lands which are expected to be managed by the WHS for the public benefit of the Whistler community. The WHS has been captured and is under de facto control by the incumbent dominant helicopter company Blackcomb Helicopters Ltd. ("Blackcomb")," the response asserts.

"This lawsuit is part of an ongoing campaign by Blackcomb, under the guise and cloak of the WHS, to maintain a monopoly within the geographic Whistler commercial helicopter market. The foregoing conduct is designed to lessen competition for helicopter services in the Whistler corridor, to the detriment of the Whistler community and the tourism operators and tourists that are key to the economy of that region."

Bylaws amended

On March 8, Spearhead filed its own civil suit against the WHS, seeking damages and requesting that the court declare that the company's lease was not cancelled and remains in effect.

Spearhead's statement contends that the Society amended its 27-year-old bylaws at its Dec. 20, 2017 AGM—just days after Vincent took over Spearhead—in an effort to "deny Spearhead's claim that it is a member of the WHS."

One of the amendments added new criteria requiring WHS members to have an operating address within B.C.; Vincent's company, Coast to Coast Holding, is based in Alberta.

Because air operator certificates are issued by Transport Canada, a federal agency, Spearhead contends in its statement that requiring WHS members to be based in B.C. "purports to confer a provincial advantage and provincial restriction in an area of purely Federal domain."

In its response to the claim, the WHS denied several of Spearhead's assertions, including: that Spearhead had a valid air operator certificate after July 29, 2015; that Spearhead had entered into a lease for a helicopter in B.C.; and that Spearhead had paid all applicable rent pursuant to the lease. WHS also claimed in its response that it had sent written notice of the termination of the lease to Spearhead on Aug. 21, 2017.

WHS also responded to Spearhead's claims that it had dissolved as a corporation due to "accident, surprise or mistake," alleging that the company had failed to file annual returns for two consecutive years because it was no longer operating.

None of the allegations in this story have been proven in court.

Both civil suits remain before the courts.

The municipality's role

Whistler's heliport is distinct in the Sea to Sky as the only municipal airport in the region that is entirely managed and operated by a non-profit society.

"The municipality doesn't have any expertise in heliport management or operations, and that was the whole reason to set up the society in the first place, so that people who know the business could actually operate the heliport," said Mayor Nancy Wilhelm-Morden in explaining the rationale behind the RMOW relinquishing control over its heliport more than a quarter-century ago.

Former Spearhead owner Quinn, who has decades of experience in the local aviation market and was one of the original tenants at the heliport, believes the current legal battle could have been avoided had the municipality not "washed its hands" of the heliport.

"It seemed like a good idea at the time. In hindsight, there has to be some accountability, and there's absolutely none," he argued. "The municipality has basically washed their hands of the place and said, 'Well, it's their problem.' That's just not good enough."

In defence, Wilhelm-Morden said that, as long as the society is following the letter of the law, there's nothing the municipality can do.

"To my knowledge, since 1990, (the heliport) has been operating very well. Now, if the position is that one company effectively has a monopoly now, I don't know if that's our fault—in fact, I'm sure it's not the fault of the municipality," she said. "We set up a lease with the society and they are complying with the terms of the lease, and that's the extent of our involvement."