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By NanaimoNewsNOW Staff

longstanding dispute

Court of Appeal orders graduated fines if unsanctioned Mudge Island seawall remains standing

Jul 31, 2023 | 7:02 AM

NANAIMO — A Mudge Island waterfront seawall built to stop erosion must be torn down by this fall before graduated fines kick in.

A recent BC Court of Appeal judgment followed a contempt of court ruling against Joaquim Fonseca, who was ordered a $2,500 fine and further $7,500 penalty if the seawall structure isn’t removed by Oct. 31.

The decision rendered by Court of Appeal Justice Gregory Fitch is in response to an ignored a January 2021 removal order, which overturned a prior Supreme Court ruling preventing local government enforcement of its land use bylaw.

At issue is a 37 foot long, two foot high seawall, which the Gabriola Island Local Trust Committee (GILTC) began enforcement action against in 2012 to preserve environmental protection objectives and ensuring the scenic beauty of shoreline areas.

Various shore protection designs to reduce erosion and preserve the natural shoreline are favoured by GILTC.

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Justice Fitch wrote Fonseca consistently argued he was not in contravention of the local bylaw and he’s not obliged to comply with the court’s order.

“The position Mr. Fonseca advanced prior to the initiation of contempt proceedings was reiterated by him at the first case management appearance post-dating the contempt finding. He did not assert, at any point prior to sentencing, that he did not understand what the terms of the order required him to do.”

Fonseca is 87-years-old with vision and hearing deficiencies, who is represented by legal counsel.

His primary home is in Burnaby.

Upon hearing her father and since deceased mother were found in contempt of the Supreme Court seawall removal order, Fonseca’s daughter moved from Toronto to oversee the structure’s removal.

The July 26 Court of Appeal judgment noted Fonseca’s daughter reported she heard back from 10 contractors regarding the desire to remove the seawall, with most of them refusing due to financial feasibility and liability concerns.

She also attempted to remove the seawall herself by using a sledgehammer and jackhammer — efforts which were confirmed by local bylaw personnel during a site visit.

The seawall consists of poured concrete and cobblestone.

Justice Fitch stated removing the seawall will likely require barging heavy equipment to the site and ensuring the task does not result in unnecessary damage.

“While this might come at a considerable cost, that is, unfortunately, the position Mr. Fonseca has put himself in,” he wrote.

Fonseca was also ordered to pay special litigation costs.

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