Province wins appeal on Seawatch nuisance claim

The BC Court of Appeal has overturned a lower court ruling that the province was liable for nuisance claims made by two sets of Seawatch homeowners. 

In a decision released March 2, Appeal Court Justices Patrice Abrioux, James Fitch and Karen Horsman unanimously overturned the B.C. Supreme Court’s January 2022 decision that provided nuisance damage awards to two sets of homeowners, Carole Rosewall, and Gregory and Geraldine Latham. The earlier decision ruled that the province’s almost three-year extension of the SOLE that barred the homeowners from living in or accessing their properties had ceased to be lawful.

“Assuming that the conduct of the Province was unlawful … the narrow legal question that arises is whether that unlawfulness equates to liability under the tort of private nuisance,” Abrioux wrote.

“The tort of nuisance cannot be expanded to hold a governmental body liable for the exercise of its statutory powers where it does not own, occupy, or use the land from which the nuisance allegedly emanates,” the decision stated. 

In its appeal, the province argued that the lower court trial judge erred in finding that it was liable in nuisance after it provided funds to the District of Sechelt for security fencing around the area that was closed through a state of local emergency (SOLE) pertaining to risks posed by subsurface instability. It asserted that funding decisions cannot give rise to “liability in nuisance,” as those involve competing uses of land rather than “administrative action where the government holds no interest in the land at issue.”

 It also put forward the claim that the trial judge erred in finding that the province’s repeated renewal of the SOLE was unlawful. The  Court of Appeal did not rule on that matter, as it determined that the province was “not a proper defendant” in the nuisance claim. 

Another appeal possible

Lawyer for those homeowners, Jason Gratl told Coast Reporter “We are not entirely satisfied with the legal analysis that closed an action of nuisance against the province.  We’re not satisfied that analysis would survive appellant scrutiny.” He said an appeal to the Supreme Court of Canada was possible and noted that his clients had 60 days to finalize that decision.  

Gratl would not confirm if his clients had received the award payments ordered by the lower court. When asked if they will be allowed to retain those awards given the appeal ruling, he said it “is a matter that could be in dispute.”  

Rosewall was awarded $108,265.78 in special and non-pecuniary damages. The award to the Lathams was non-pecuniary damages of $131,200 plus additional special damages for moving and storage costs incurred after May 17, 2019.  That was the date that the lower court fixed for its judgment of nuisance against the province for its continued renewal of Sechelt’s SOLE.  

In May 2022, the province unsuccessfully requested a stay from the Court of Appeals to delay making those payments. 

Not an endorsement of the province’s actions

Despite its successful appeal, the province was not awarded its court costs with the decision. It also did not emerge from the action without the court commenting on the role it played in the situation that barred the owners from their homes. 

“This should not be seen by the Province as an endorsement of its conduct in extending the SOLE,” the decision said. “It is not.

“In the circumstances of this case, the District’s [of Sechelt’s] requests for the SOLE extensions obligated the Minister to provide some independent, ongoing assessment of the declared emergency at Seawatch, especially in light of the evacuation order’s obvious drastic effect on the residents and their properties.”

Gratl stated he found that statement “quite gratifying”. 

Along with the emotional impacts of losing their homes, the effects included leaving those high-end residences abandoned and subject to vandalism for three years. The assessed values of the properties were reduced to $1 for the lands and $1 for the improvements as of the 2020 taxation year.  The 14 properties were each assessed at more than $1 million in 2018. 

“We are pleased the Court of Appeal recognized that there is a serious problem with the way the Province of British Columbia used its powers in this context," said Gratl.

Background

A number of parties were granted intervener status at the appeal hearing.  Those included the Canadian CIvil Liberties Association and owners of seven other Seawatch properties.  

Feb. 19 marked the fourth anniversary of the declaration of Sechelt’s State of Local Emergency (SOLE) order that called for the evacuation of the homes and closed public access to the site.  That action followed its receipt of a geotechnical report on risks relating to the daylighting of a large sinkhole on Christmas Day 2018. Previous sinkholes had opened up in the subdivision dating back to 2012. 

The order was lifted Feb. 11, 2022, after the province denied the district’s 153rd weekly request for a renewal. 

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.