Sequoia Springs West Development Corp. v. British Columbia (Minister of Transportation and Highways), (2003) 176 B.C.A.C. 124 (CA)

• Judge: Esson, Donald and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 03, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 176 B.C.A.C. 124 (CA);2003 BCCA 8

Sequoia Springs West Dev. v. B.C. (2003), 176 B.C.A.C. 124 (CA);

    290 W.A.C. 124

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. JA.065

Sequoia Springs West Development Corp. (claimant/appellant/respondent on cross-appeal) v. Her Majesty The Queen in Right of the Province of British Columbia as represented by the Minister of Transportation and Highways (respondent/respondent/appellant on cross-appeal)

(CA026942; 2003 BCCA 8)

Indexed As: Sequoia Springs West Development Corp. v. British Columbia (Minister of Transportation and Highways)

British Columbia Court of Appeal

Esson, Donald and Saunders, JJ.A.

January 3, 2003.

Summary:

The province expropriated 29 of 234 acres for construction of a portion of a highway. The property was in the process of being devel­oped as a residential golf course com­munity. The owner received an advance payment totalling $1,479,500. The Expropri­ation Compensation Board awarded the owner compensation for the market value of the expropriated land, the reduction in mar­ket value of the remaining land, business losses and actual reasonable legal, appraisal and other costs to June 28, 1999, and its costs prescribed under the Tariff of Costs Regula­tion after that date. The owner appealed. The province cross-appealed. Leave to appeal was granted by the Court of Appeal. See 141 B.C.A.C. 303; 231 W.A.C. 303.

The British Columbia Court of Appeal allowed the appeal in part, remitting the issue of costs thrown away on the taken lands for assessment. The court dismissed the cross-appeal.

Expropriation - Topic 1036

Measure of compensation - Methods of valuation - Comparative sales or market data method - 29 of 234 acres of land in the process of being developed as a resi­dential golf course community were expro­priated for a highway - The owner alleged that the Expropriation Compensation Board erred in its application of the comparable method in determining market value - The Board adjusted the sale price of the most comparable property for possible contribu­tions from others to its off-site expenses, such receipt of monies effectively lowering the actual cost to the purchaser of the property - The British Columbia Court of Appeal held that where the evidence es­tablished that a purchaser could expect such receipts to mitigate its cost, that contingency should be reflected - See paragraphs 13 to 26.

Expropriation - Topic 1040

Measure of compensation - Methods of valuation - Before and after method - [See Expropriation - Topic 1036 ].

Expropriation - Topic 1060

Measure of compensation - Factors or considerations affecting valuation - Con­tingencies - [See Expropriation - Topic 1036 ].

Expropriation - Topic 1083

Measure of compensation - Evidence of value - Comparable sales - [See Expro­priation - Topic 1036 ].

Expropriation - Topic 1218

Measure of compensation - Injurious affection or damage to unexpropriated portion - Evidence and proof - 29 of 234 acres of land in the process of being de­veloped as a residential golf course com­munity were expropriated for a highway - The British Columbia Court of Appeal held that with respect to a claim for costs said to be thrown away on the remnant parcel, the issue was whether the costs were indeed thrown away, i.e., whether it was established that the monies spent were without present benefit - The court refused to disturb a finding by the Expropriation Compensation Board that monies spent on the remaining lands were not proven to be lost - See paragraphs 38 to 40.

Expropriation - Topic 1306

Measure of compensation - Elements of compensation - Business disturbance - 29 of 234 acres of land being developed as a residential golf course community were expropriated for a highway - The British Columbia Court of Appeal held that expenses incurred on lands taken were costs thrown away - The owner was entitled to payment for expenses incurred on the lands taken as reasonable business losses caused by the taking - Monies spent on salary for a consultant's advice, and monies spent improving the land now under the highway, were disturbance dam­ages under s. 34 of the Expropriation Act, or business losses under s. 40(1) - Monies proven to have been spent to improve property under development for its highest and best use, to the extent they were thrown away by the expropriation, repre­sented recoverable losses - See paragraphs 27 to 38, 42 to 44, 48 to 52.

Expropriation - Topic 2207

Practice and procedure - Appeals - Stan­dard or scope of review by courts of deci­sions of boards - The British Columbia Court of Appeal referred to the standard of review of deci­sions of the Expropriation Compen­sation Board - See paragraphs 11 to 12.

Expropriation - Topic 2322

Practice and procedure - Costs - Discre­tionary power - The Expropriation Com­pensation Board awarded an owner com­pensation which was less than 115 percent of the advance payments to it prior to the compensation hearing, and less than an amount offered in settlement prior to the hearing - The Board also awarded costs to the owner - The British Columbia Court of Appeal held that the costs order engaged the dis­cretion of the Board, and the expro­priating authority's appeal con­cerned the exercise of discretion - A high level of deference should be accorded to the Board's exercise of discretion - See para­graphs 66 to 67, 69.

Expropriation - Topic 2339

Practice and procedure - Costs - Effect of offers to settle - The Expropriation Com­pensation Board awarded an owner com­pensation which was less than 115 percent of the advance payments to it prior to the compensation hearing, and less than an amount offered in settlement prior to the hearing - The Board also awarded costs to the owner - The British Columbia Court of Appeal held that an offer of settlement contained in a "Calderbank" letter may be given weight by the Board - However, the exist­ence of the "Calderbank" letter was not, by itself, determinative of the costs issue, but was a factor in determining whether all or a portion of costs be awarded to a party receiving less than 115 percent of the advance payments - See paragraph 72.

Cases Noticed:

Golden Valley Golf Course Ltd. v. British Columbia (Minister of Transportation and Highways) et al. (2001), 154 B.C.A.C. 42; 252 W.A.C. 42 (C.A.), refd to. [para. 11].

Actton Petroleum Sales Ltd. v. British Columbia (Minister of Transportation and Highways) (1998), 108 B.C.A.C. 119; 176 W.A.C. 119; 64 L.C.R. 161 (C.A.), refd to. [para. 11].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 11].

Casamiro Resource Corp. et al. v. British Columbia (2000), 139 B.C.A.C. 261; 227 W.A.C. 261 (C.A.), refd to. [para. 12].

B & A Bobcat and Excavating Ltd. v. Sangha et al. (1999), 118 B.C.A.C. 186; 192 W.A.C. 186; 43 C.L.R.(2d) 167 (C.A.), refd to. [para. 35].

British Columbia Hydro and Power Authority v. Marathon Realty Co. et al. (1992), 11 B.C.A.C. 185; 22 W.A.C. 185; 89 D.L.R.(4th) 419 (C.A.), refd to. [para. 35].

Horn v. Sunderland Corp., [1941] 2 K.B. 26 (C.A.), refd to. [para. 46].

Vision Homes Ltd. v. Nanaimo (City) (1994), 54 L.C.R. 103 (B.C.E.C.B.), affd. (1996), 77 B.C.A.C. 276; 126 W.A.C. 276; 59 L.C.R. 106 (C.A.), refd to. [para. 46].

Patterson et al. v. British Columbia (Minister of Transportation and Highways) (1997), 95 B.C.A.C. 2; 154 W.A.C. 2; 41 B.C.L.R.(3d) 117; 62 L.C.R. 89 (C.A.), refd to. [para. 52].

Bayview Builder's Supply (1972) Ltd. v. British Columbia (Minister of Transportation and Highways) (1999), 120 B.C.A.C. 30; 196 W.A.C. 30; 66 B.C.L.R.(3d) 94 (C.A.), refd to. [para. 52].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 63].

Baker v. Canada (Minister of Citizenship and Immigration), [1998] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 67].

Calderbank v. Calderbank, [1975] 3 All E.R. 333, refd to. [para. 70].

Martel v. Peetoom (1996), 27 B.C.L.R.(3d) 160 (S.C.), refd to. [para. 71].

Director of Buildings and Lands (Hong Kong) v. Shun Fung Ironworks Ltd., [1995] 2 A.C. 111; 182 N.R. 361 (P.C.), refd to. [para. 72].

Baines v. British Columbia (Minister of Transportation and Highways) (No. 2) (1997), 62 L.C.R. 210 (B.C.E.C.M.), refd to. [para. 73].

Statutes Noticed:

Expropriation Act, R.S.B.C. 1996, c. 125, sect. 31(1) [para. 50]; sect. 34(1)(a) [para. 51]; sect. 40(1)(b) [para. 49]; sect. 45(3), sect. 45(4), sect. 45(5) [para. 58].

Counsel:

L.J. Alexander and C.E. Hanman, for the appellant;

A.V.W. Hincks and F. Crowhurst, for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 23 and 24, 2002, before Esson, Donald and Saunders, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following judgment for the Court of Appeal on January 3, 2003.