Delay of Seawatch damage awards dismissed

With a May 25 BC Court of Appeals decision setting aside the province's request for a stay to delay payments, two sets of beleaguered Seawatch homeowners have been paid some money for being kept out of their homes due to the long-standing situation related to sinkholes in their subdivision. Whether they will keep those funds remains an issue before that court. 

The province asked for a 'stay' to delay payments to Seawatch owners as it argued the implications could have impacts in other areas under extended emergency orders.

Costs were awarded to Carole Rosewall and Gregory and Geraldine Latham in March by BC Supreme Court. That ruling said the province’s almost three-year extension of a state of local emergency (SOLE) that barred the homeowners from living in or accessing their properties had “ceased to be lawful." 

Jason Gratl, lawyer for Rosewall and the Lathams, provided Coast Reporter with a copy of appeals court Honourable Madam Justice Gail M. Dickson’s reasons for judgment on the stay application, issued in Vancouver. 

While its request for a stay was not successful, the province's appeal of the Supreme Court ruling is slated to be heard in October, according to Cara Zwibel, a lawyer representing the Canadian Civil Liberties Association (CCLA). That group has been granted intervenor status in the action.

Why the Province wanted a 'stay'

The wider implications of the court award were at the centre of the province's application for a stay. It hinged its request on evidence provided to the court by executive director of special projects for Emergency Management BC, William Bates. He testified that as of March 15 of this year, the minister had extended 14 SOLE orders in different areas of the province, which remained in effect, including one in Lytton, as a result of a wildfire that destroyed that community. His testimony was that the province cannot always resolve a hazard that leads the minister (of public safety) to renew a SOLE for an extended period.

Summarizing that testimony, Dickson wrote in her decision document that the province’s position on the award of the costs was that they “dramatically change the lay of the land for managing emergencies going forward and, unless a stay is granted, the judge’s finding of invalidity will put the public at risk, and hamper disaster and emergency responses.” She also wrote, “I am not persuaded by the Province’s submissions."

The award to Rosewall included special damages of $68,265.78 and $40,000 in non-pecuniary damages. The Lathams were awarded non-pecuniary damages of $80,000 and special damages of $51,200. They were awarded additional special damages for an undisclosed amount for moving and storage costs incurred after May 17, 2019.  That was the date that court fixed for a judgment of nuisance against the province for its continued renewal of the District of Sechelt’s SOLE. 

The amounts awarded were “double costs” given that B.C. refused the homeowners' request to settle the matters out of court.

In written statements to Coast Reporter, both the Province and the Lathams declined to comment further, as the matter remains before the courts. The District of Sechelt also declined to comment.

Action is of interest to others

Owners of seven other Seawatch properties, currently represented by Vancouver-based lawyer Jeff Scouten, have been granted party status in the action. Legal representatives for that group and the CCLA were in attendance at the hearing and as the reasons for the decision were released. Gratl stated that the two groups were added to the action by an earlier order issued by the Honourable Madam Justice De Witt-Van Oosten.

Zwibel who is also the director of the CCLA's fundamental freedom program, told Coast Reporter on Aug. 5 that that organization's interest in the case is in the interpretation of the legislation, not the awards to the homeowners.  "We're interested in the legal question of whether there is an endpoint to an emergency, or if an emergency is a state of affairs that can persist forever if the government chooses not to do something to address it by taking some form of affirmative action," said Zwibel. 

"Having the experience with a lot of emergency legislation being used during the pandemic, we sort of wanted to weigh in on this question as to whether an emergency has to have an end or can it go on indefinitely." 

While any BC Court of Appeal decision would only be binding in this province, she said it would be a "persuasive authority" for decisions in other provinces and territories. Intervenor status allows the CCLA to file an eight-page brief to be considered by the appeals court. That brief must be submitted by Aug. 12 and Zwibel stated the CCLA will also be requesting the opportunity to present oral arguments before the court.  

"With emergency legislation and when you are in a state of local emergency, you are overriding the usual democratic checks and balances. It is all done by executive order and that diminishes the extent to which you can have real democratic accountability for decisions. One of the reasons we asked to make submissions in this case is that there should be some guard rails and safeguards around how long a state of emergency can persist and how long you can be in that suspended state where you don't have the normal check and balances working."

Background

The subdivision, located in Sechelt's West Porpoise Bay neighbourhood, was approved in 2006. In June 2012 a sinkhole opened up on one of its roads. Over the following years, more sinkholes would emerge, rendering one completed home uninhabitable and forcing partial road closures. A large one daylighted on Dec 25, 2018. Following a review of the site by contracted geotechnical personnel, the District of Sechelt issued a warning to subdivision residents, some who had lived there since 2008, regarding site instability. It issued a SOLE on Feb. 15, 2019, evacuating 21 homes and closing public access to the site.

With financial assistance from the province, Sechelt had security fencing installed around the subdivision. Despite those efforts, unauthorized individuals entered the site, and several homes were looted and vandalized. Residents of the neighbouring subdivision of The Shores have expressed ongoing concerns about the impact on their lives related to illegal activities occurring in and around the abandoned site.

That SOLE was renewed by the province on a weekly basis until Feb. 11, 2022, when the province declined to sign a renewal requested by Sechelt. Since that date, the municipality has kept roads accessing the site closed, and the fencing, which displays warning signage about ground instability in the area, in place. Owners have been offered keys to the locked gate to access their properties should they choose to do so at their own risk.  

Property owners started a variety of legal actions against the province, the district and other parties involved in the subdivision dating back to 2013. The Lathams and Rosewall withdrew claims filed against the District of Sechelt after the BC Court of Appeal dismissed nuisance claims filed against the municipality by other Seawatch owners. That ruling said that a restrictive covenant filed on the titles of the subdivision properties alerting prospective purchasers to the geotechnical conditions protected the local government from such claims.