Young v. British Columbia et al., (2016) 382 B.C.A.C. 46 (CA)

• Judge: Chiasson, Frankel and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 26, 2015
• Jurisdiction: British Columbia
• Citations: (2016), 382 B.C.A.C. 46 (CA);2016 BCCA 25

Young v. B.C. (2016), 382 B.C.A.C. 46 (CA);

    660 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JA.050

Timothy Young and Seamus Young (appellants/plaintiffs) v. Her Majesty the Queen in Right of the Province of British Columbia and The Minister of Environment (respondents/defendants)

(CA42529; 2016 BCCA 25)

Indexed As: Young v. British Columbia et al.

British Columbia Court of Appeal

Chiasson, Frankel and Fitch, JJ.A.

January 22, 2016.

Summary:

In June 2008, the Province expropriated 12 of the appellants' 28 adjoining mineral claims. It was assumed that this seriously impacted the appellants' ability to access the remaining 16 claims. The Province and the appellants settled the compensation payable for the 12 expropriated mineral claims. It was agreed that the associated release was "not intended to apply to the [the appellants'] common law claims for injurious affection". The appellants filed a notice of civil claim seeking judgment for damages for injurious affection. They subsequently filed a summary trial application seeking judgment in the amount of $3,000,000 or alternatively "for a determination that [they] are entitled, as a matter of law, to compensation to the extent that the unexpropriated mineral titles sustained injurious affection, with damages to be proved subsequently". At the hearing of the application, the appellants limited their remedy to the alternative position.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 2445, dismissed the application. The judge held that s. 5(5) of the Mining Rights Compensation Regulation evidenced a clear legislative intention to deny compensation for injurious affection as "consequential damages" to an expropriated mineral title holder. The appellants appealed. They contended that the judge misconstrued s. 5(5) of the Compensation Regulation.

The British Columbia Court of Appeal dismissed the appeal. There was no conceptual reason to conclude that damages for injurious affection were not included in consequential damages. The judge correctly concluded that the appellants were not entitled to a declaration that they were entitled to advance a claim for injurious affection.

Expropriation - Topic 113

Right to compensation - Compensable interests - Mining claims - See paragraphs 24 to 46.

Expropriation - Topic 177

Right to compensation - Injurious affection - Scope of right - See paragraphs 24 to 46.

Expropriation - Topic 188

Right to compensation - Injurious affection - Severance resulting in restriction of access - See paragraphs 24 to 46.

Expropriation - Topic 1200

Measure of compensation - Injurious affection or damage to unexpropriated portion - General - See paragraphs 24 to 46.

Expropriation - Topic 3024

Compensation awards - Particular awards - Mines and mining claims - See paragraphs 24 to 46.

Cases Noticed:

Rock Resources Inc. v. British Columbia (2003), 183 B.C.A.C. 246; 301 W.A.C. 246; 229 D.L.R.(4th) 115; 2003 BCCA 324, refd to. [para. 11].

Adroit Resources Inc. v. British Columbia, [2010] B.C.A.C. Uned. 61; 6 B.C.L.R.(5th) 244; 2010 BCCA 334, refd to. [para. 11].

British Columbia Medical Association v. R. in Right of British Columbia (1984), 58 B.C.L.R. 361 (C.A.), refd to. [para. 25].

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), [2013] 1 S.C.R. 594; 441 N.R. 342; 301 O.A.C. 281; 2013 SCC 13, refd to. [para. 35].

Adroit Resources Inc. v. British Columbia, [2009] B.C.T.C. Uned. 841; 2009 BCSC 841, refd to. [para. 36].

Statutes Noticed:

Mineral Tenure Act, R.S.B.C. 1996, c. 292, sect. 17.1 [para. 14].

Mineral Tenure Act Regulations (B.C.), Mining Rights Compensation Regulation, B.C. Reg. 19/99, sect. 5(1), sect. 5(5) [para. 15]; sect. 6 [para. 30].

Mining Rights Compensation Regulation - see Mineral Tenure Act Regulations (B.C.).

Park Act, R.S.B.C. 1996, c. 344, sect. 11(2)(c) [para. 14].

Counsel:

D.B. Kirkham, Q.C., and P.J. O'Neill, for the appellants;

B.A. Carmichael and E.L. Ross, for the respondents.

This appeal was heard on October 26, 2015, at Vancouver, B.C., before Chiasson, Frankel and Fitch, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Chiasson, J.A., on January 22, 2016.