July 5, 2000, E.C.B. No. 34/99/186 (70 L.C.R. 137)
|| Vancouver Marina
|| Her Majesty the Queen in Right of the Province of British Columbia
as Represented by the Minister of Transportation and Highways
|| Sharon I. Walls,
Firoz R. Dossa, Board Member
Susan E. Ross, Board Member
|| Thomas W. Barnes,
Counsel for the Claimant
Nerys Poole, Counsel for the Respondent
Reasons for Decision
 The Claimant, Vancouver Marina (1971) Ltd., has
operated a marina at 8331 River Road, in Richmond, British
Columbia since 1971. The Claimant operates its business
on waterlots 6822 and 8698 that it sublets from Regent
Holdings Ltd. ("Regent").
 The Claimant brings an application for:
|| a determination
that a portion of its leasehold interest in waterlot
6822 has been expropriated or, alternatively,
injuriously affected by the Respondent Her Majesty
the Queen as represented by the Minister of Transportation
and Highways ("MoTH");
|| an order that the
Claimant is entitled to compensation in accordance
with the provisions of the Expropriation Act,
R.S.B.C. 1996, c. 125 (the "Act").
 The Respondent, MoTH, also brings an application.
It seeks an order under Rule 19(24) of the Rules of
Court that the Claimant's Form A be struck and dismissed
as disclosing no claim under the Act or, alternatively,
that the board make a determination that it lacks jurisdiction
under the Act to consider the claims set out in the
 The background facts are set out in the affidavit
of John Norman Short, Vice-President and Operating Manager
of the Claimant, filed on July 14, 1999 and the affidavit
of David Twining filed by consent on October 28, 1999,
after the hearing.
 The Claimant has conducted its marina business
on waterlots that it leases from Regent pursuant to
a series of renewable sub-leases. The current sub-lease
(the "Regent/Claimant Lease") runs from February
1, 1990 to January 31, 2000 and is, at the Claimant's
option, renewable for a further term of ten years to
January 31, 2010. It should be noted that Regent is
a part owner of the Claimant.
 Regent owns the lands and premises at 8331 River
Road, Richmond, British Columbia and leases the waterlots
which adjoin its land from the North Fraser Harbour
Commission ("NFHC"), a body corporate established
pursuant to the Harbour Commissions Act, R.S.C.
1999, c. H-1. The current waterlot lease between Regent
and NFHC ("the NFHC/Regent Lease") runs from
December 1, 1994 to November 30, 2004 and is, at Regent's
option, renewable for a further term of five years to
November 30, 2009.
 NFHC, in turn, leases the waterlots and other parcels
of foreshore lands and lands covered by water from the
Province of British Columbia, pursuant to a lease for
a term of 30 years from January 1980 (the "Head
Lease"). This Head Lease was not in evidence.
 The Province of British Columbia plans to build
a new connector bridge to Sea Island in Richmond. In
order to construct the new bridge, the Province requires
a portion of waterlot 6822, which has been used by the
Claimant's business (the "Waterlot"). On July
9, 1998 NFHC gave notice to Regent in the following
The Province of British Columbia (the "Province")
plans to construct a new connector bridge to Sea
Island (the "Project"). … In order to
proceed with the Project, the Province will require
certain lands which are currently leased to you
under the lease.
In accordance with section 7.01 of the lease, the
North Fraser Harbour Commission (the "Commission")
gives you notice that the lands identified by the
bold black dash outline in the attached Schedule
1 (the "lands") are being resumed by the
In the notice NFHC required the Claimant to vacate
the Waterlot by January 8, 1999. This was later extended
to April 1, 1999. The Claimant did remove all of its
trade goods and chattels from the designated area by
April 1, 1999 in compliance with the notice.
 The Claimant's solicitor wrote a letter dated
July 15, 1998 in reply to the notice. The Claimant filed
its Form A on July 14, 1999.
 The Form A pleads that MoTH is responsible for
the acquisition of the land for the bridge and is doing
so as an "expropriating authority" in accordance
with the statutory authority provided to it by the
Highway Act, R.S.B.C. 1996, c. 188. The Claimant
also pleads that the loss of the Waterlot will cause
a loss in the annual income from the marina business
of $70,000. The Claimant pleads that once construction
of the new bridge commences sailboats will no longer
have access to the marina and as a result the business
must be converted to service motor boats. Furthermore,
the marina needs to install some device or structure
that will protect the marina from river-borne debris
as construction of the bridge requires removal of one
of the floats that is currently designed as a breakwater.
In order to carry on business on the remainder of the
waterlots, the Claimant pleads that the necessary reconfiguration
will cost at least $500,000.
 In its Form B MoTH admits that it is responsible
for assembling the land for the new bridge project,
but pleads that there has been no expropriation. MoTH
says that the Claimant is not an owner under the Act
because the Regent/Claimant lease is not valid. In addition,
MoTH denies that the Province has taken any actions
under the Highway Act. Paragraphs 12 and 13
of the Form B say that the Province provided notice
to NFHC with respect to the Waterlot pursuant to the
Head Lease. MoTH also denies that there has been any
injurious affection. As a result, MoTH pleads that the
Claimant is not entitled to any compensation under the
 NFHC was established pursuant to section 5 of
the Harbour Commissions Act and sections 3 and
15 of the Harbour Commissions Act provide in
| 3 (1)
is hereby declared that the objective of the national
ports policy for Canada is to create a port system
|| is an effective
instrument of support for the achievement of Canadian
international trade objectives and of national,
regional and local economic and social objectives;
|| is efficient
|| provides harbour
Commissions with a high degree of autonomy for
the management and operation of the ports for
which they are established, consistent with the
responsibility of the Minister to ensure the integrity
and efficiency of the national ports system and
the optimum deployment of resources…
||A Commission may administer
and develop on behalf of Her Majesty in right
of Canada or any province, or on behalf of any
municipality adjoining the harbour, any property
owned by Her Majesty in right of Canada or that
province or owned by that municipality, as the
case may be, within the limits of the harbour
or in the immediate vicinity thereof.
Thus, NFHC is a Canada Crown corporation with statutory
responsibility for managing the "port" and
for administering and developing the harbour or any
property in the immediate vicinity of the harbour on
behalf of any one of the three levels of government.
 The issues in this hearing are as follows:
|| Does the Claimant
have a valid lease and is it therefore an owner
under the Act?
|| If the Regent/Claimant
lease is valid, has there been an expropriation
of the Claimant's interest in the Waterlot?
|| If there has been
no expropriation, does the Claimant satisfy the
various tests for injurious affection with no
4.1 Is the Claimant an Owner?
 Section 1 of the Act defines owner as follows:
in relation to land, means
|| a person who
has an estate, interest, right or title in or
to the land including a person who holds a subsisting
judgment or builders lien……or
|| a person who
is in legal possession or occupation of land,
other than a person who leases residential premises
under an agreement that has a term of less than
 MoTH submits that the Claimant is not an owner
as it is not in legal possession of the Waterlot. Under
the NFHC/Regent Lease, Regent is required to apply for
NFHC's written consent prior to entering into a sub-lease.
Regent entered into a sub-lease with the Claimant (the
Regent/Claimant Lease) without written consent from
NFHC. MoTH says that this breach renders the Regent/Claimant
Lease invalid and as a result the Claimant is not a
legal tenant of the Waterlot.
 MoTH points to paragraph 10.01 of the NFHC/Regent
Lease which provides as follows:
10.01 The Tenant shall not assign this Lease or
sublet the Lands in whole or in part or transfer
or convey any of the privileges and rights hereby
conferred, or any part thereof, or grant any right
of occupancy, or charge or encumber any of the Improvements
or its leasehold interest hereunder without the
prior written consent of the Landlord, which consent
may be arbitrarily withheld and which consent may
if given, be subject to such terms and conditions
as the Landlord may determine.
MoTH also points to paragraphs 8.02 and 12.01 of the
NFHC/ Regent Lease which require, inter alia,
compliance by Regent with the by-laws of the landlord.
Paragraph 19(2) of the NFHC by-laws also stipulates
that the holder of a lease from the Commission shall
not assign, sublet or part with possession of land without
the written consent of the Commissioners.
 The Claimant cites Mackusick v. Carmichael,
 2 K.B. 581 in response to MoTH's submission.
In Mackusick, the Court held that where a lessee,
who has covenanted that he will not sub-let without
the consent of the lessor, nonetheless does sublet,
and if the sub-lessee further sub-lets without his consent,
the landlord cannot complain of such further sub-letting
as a breach of covenant by the sub-lessee. A sub-lessee
is not, for that purpose, an assign. While the facts
of Mackusick are not directly on point, the
Court arrives at its conclusion on the basis that there
is no privity of contract between the Head lessor and
 It is clear from the Short affidavit and the Twining
affidavit that NFHC had actual notice of the Regent/Claimant
Lease. It authorized aspects of the Claimant's operation
and accepted rent payments required under the NFHC/Regent
Lease directly from the Claimant.
 It is true that Regent failed to obtain NFHC's
formal written consent to the sub-lease to the Claimant.
This failure could give rise to a claim by NFHC against
Regent for breach of contract or other remedy. However,
NFHC may well be met with a successful defence of acquiescence
or estoppel because it has had actual notice of the
Regent/Claimant Lease and has apparently acquiesced
in the arrangement for a period of twenty-eight years.
The Province, which does not have privity of contract
with either Regent or the Claimant, cannot be in a better
position than NFHC with respect to the Claimant.
 In these circumstances, we cannot accept MoTH's
submission that Regent's failure to obtain written consent
from NFHC makes the Regent/Claimant Lease invalid. In
our opinion, at a minimum, the Claimant is in legal
possession of the land. We find that the Claimant is
an owner under subsection (c) of the definition in the
4.2 Has there been an expropriation of the waterlot
4.2.1 Claimant's position
 Having determined that the Claimant is an owner
of the Waterlot, the board must now consider whether
it has been expropriated. The definition of "expropriate"
in section 1 of the Act is:
"expropriate" means the taking of land
by an expropriating authority under an enactment
without the consent of the owner, but does not include
the exercise by the government of any interest,
right, privilege or title referred to in section
50 of the Land Act;
 The Claimant says that the acquisition of the
Waterlot for a bridge is a taking. It referred us to
the definition of "taking" in Black's Law
Dictionary, 6th Edition, p. 1454 which states:
There is a "taking" of property when
government action directly interferes or substantially
disturbs the owner's use and enjoyment of the property
….To constitute a taking, within constitutional
limitation, it is not essential that there be physical
seizure or appropriation, and any actual or material
interference with private property rights constitutes
The Claimant says that at no time has it consented
to the taking of the Waterlot by MoTH. It also submits
that MoTH is an expropriating authority that could only
have acquired the Waterlot for the bridge under the
provisions of the Highway Act, which explicitly
stipulates that the Expropriation Act applies.
Finally, the Claimant relies on Skillion PLC v.
Keltec Industrial Research Ltd.,  1 E.G.L.R.123
(Ch.D.) and Manitoba Fisheries Ltd. v. Her Majesty
the Queen,  1 S.C.R. 101.
4.2.2 MoTH's position
 MoTH, on the other hand, says that there has been
no expropriation within the meaning of the Act. It points
out that NFHC gave notice to Regent pursuant to paragraph
7.01 of the NFHC/Regent Lease which provides as follows:
If the Lands or any portion thereof shall
in the opinion of the Landlord [defined as
NFHC] be required for government or public
purposes, possession of the same may
at any time during the Term or any renewal thereof
be resumed by the Landlord upon Ninety (90)
days notice in writing by the Landlord to
the Tenant [defined as Regent] in which event
the Landlord shall pay to the Tenant the fair
value of the Fixed Improvements on the portion
of the Lands resumed as at the time of the giving
of such notice. The fair value of those Fixed
Improvements shall in no case exceed the initial
cost thereof to the Tenant, depreciated for the
period which shall have elapsed between the installation
of those Fixed Improvements and the date of resumption
of the Lands (or a portion thereof) by the Landlord,
on the basis of an assumed rate of depreciation
on a straight line basis to zero over the shortest
|| the normal life
of those Fixed Improvements;
|| the term of the
Lease remaining unexpired at the date of installation
of those Fixed Improvements; or
|| 10 years;
less any residual or salvage value to the Tenant
and less any encumbrances on those Fixed Improvements.
Any dispute regarding the designation of an Improvement
as a Fixed Improvement or the value of a Fixed
Improvement shall be resolved pursuant to the
provisions of Section 20.01. (emphasis added)
 Although MoTH does not claim that this case involves
an easement or a right of way, it also points to paragraph
15.05 of the NFHC/Regent Lease. This paragraph provides
that NFHC and the Province reserve the right to grant
easements or rights of way across any portion of the
leased land and if this right of way unreasonably interferes
with the tenant's rights or improvements, compensation
shall be set at the sole discretion of NFHC whose decision
as to compensation shall be final.
 MoTH relies on two Alberta decisions in support
of its submission that there has been no expropriation:
Minute Muffler Installations Ltd. et al. v. Minister
of Housing and Public Works (No 3) (1984), 30 L.C.R.
125 (Alta. C. A.) and Re City of Calgary and Richmond
Service Ltd. (1982), 27 L.C.R. 94, a decision of
the Land Compensation Board of Alberta.
 The facts which underlie this claim developed
at two levels. We find it helpful to reflect this in
our analysis of whether there has been an expropriation.
Accordingly we will examine:
|| the acquisition
of the Waterlot by the Province or MoTH from NFHC;
|| the acquisition
of the Waterlot by NFHC from the Claimant.
 We will deal first with the acquisition of the
Waterlot by MoTH from NFHC. The definition of expropriation
requires a number of elements, whether the action has
occurred under the formal procedures under the Act or
whether it is an indirect taking.
i under an enactment
 One requirement is that a taking of property must
be "under an enactment". Section 1 of the
Interpretation Act, R.S.B.C. 1996, c. 238 defines
"enactment" as an Act [of the Legislature]
or a regulation or a portion of an Act or regulation.
The Claimant has plead that MoTH must have taken the
Waterlot from NFHC pursuant to its expropriating authority
under the Highway Act. However, there was no
evidence before us that this was the case. MoTH has
plead that the Waterlot was acquired under the provisions
of the Head Lease. We do not have that Head Lease in
evidence. Nor do we have any evidence of the procedures
by which MoTH acquired the Waterlot from NFHC. Therefore,
we have no evidence at all as to how the Province acquired
the Waterlot and cannot say whether or not the acquisition
was under an enactment.
ii  a taking of property
 Another requirement is that there be a taking
of property. There is no question that MoTH has acquired
the Waterlot. However, E.C.E. Todd in The Law of
Expropriation and Compensation in Canada, 2nd ed.
(Carswell Co. Ltd., Toronto, 1992) distinguishes the
concept of taking of property in an expropriation from
other legal concepts of taking. At p. 21 he distinguishes
the concept of resumption from expropriation as follows:
In making an original grant of land the Crown may
have reserved the right to take back or "resume"
the land, or some part of it, for certain purposes,
such as road making. … A public authority may acquire
land subject to rights reserved in the grantor upon
the land until such time as it is needed for public
purposes. When the authority subsequently assumes
the land for such purposes it is not "acquiring"
land within the meaning of expropriation legislation
so as to found a claim for compensation or damages.
If anything is acquired it is with the consent of
the owner by virtue of the terms of the reservation
in the grant.
In this case, because we have no evidence, we do not
know whether MoTH acquired the Waterlot from NFHC by
a taking that is an expropriation or by a taking that
may be a resumption.
iii without the consent of the owner
 The Waterlot is part of the Fraser River and is
owned by the Province which has a Head Lease with NFHC.
NFHC has a statutory duty to administer the public land
in and around the harbour for the different levels of
government. It is not clear to us whether NFHC's relations
with the Province with respect to the Waterlot are governed
solely by the Head Lease or whether they are also governed
by the Harbour Commissions Act. We do not have
any evidence as to whether NFHC consented to the acquisition
 In summary, because there is no evidence on how
the Province acquired the Waterlot from NFHC we are
unable to find either that there has been an expropriation
by MoTH or that an expropriation by MoTH has been excluded.
 We will now turn to the acquisition of the Waterlot
by NFHC from the Claimant and consider again the requirements
for an expropriation by MoTH.
i under an enactment
 There is no evidence that the acquisition of the
Waterlot by NFHC from the Claimant was under any enactment.
ii a taking of property
 NFHC has acquired the Waterlot from the Claimant.
However, as indicated at paragraph 30, property may
be acquired by other means than expropriation. In this
case, NFHC's letter of July 9, 1998 states that the
Province required the land for a bridge and that in
accordance with paragraph 7.01 of the NFHC/Regent Lease,
NFHC gave notice that it was resuming the designated
part of the land. Paragraph 7.01 of the NFHC/Regent
Lease permitted NFHC to resume the waterlot at any time
if in NFHC's opinion the land was "required for
government or public purposes". The Province requiring
the land for a bridge was a government or public purpose.
The notice requirement in paragraph 7.01 appears to
have been met. All the conditions for a resumption or
a taking under the NFHC/Regent Lease appear to have
iii without the consent of the owner
 The Claimant says it did not consent to this taking
back of the Waterlot. However, the Claimant did enter
into a sub-lease with Regent that is subject to Regent's
lease with NFHC. As indicated above, the NFHC/Regent
Lease permitted NFHC to resume the waterlot at any time
if in NFHC's opinion the land was required for government
or public purposes. Thus, the Claimant consented to
the taking by NFHC as set out in the lease. Whether
the Claimant consented to the Province's acquisition
of the Waterlot from NFHC is a separate question.
 We find that NFHC's acquisition of the Waterlot
from the Claimant was pursuant to the NFHC/Regent Lease
and was not an expropriation. However, depending on
the precise circumstances of the acquisition of the
waterlot by MoTH from NFHC, a point on which there is
a gap in the evidence before us, the Claimant's interest
in the Waterlot may have been expropriated by MoTH and
the Claimant may be entitled to compensation.
 MoTH's position was that if the acquisition of
the Waterlot from the Claimant was under the NFHC/Regent
Lease, then Minute Muffler and Re City of
Calgary were authority for precluding the Claimant
from any compensation for any expropriation. In
Minute Muffler the government of Alberta expropriated
the fee simple of certain lands. On the date of expropriation,
Minute Muffler was a tenant of the lands and there was
an unexpired term of the tenancy. A clause in the lease,
In the event that the premises are expropriated,
or sold, this lease shall be cancelled without further
recourse by either party.
Kerans, J.A., delivering the judgment of the Court
of Appeal, stated at p. 125:
The Land Compensation Board refused to take up
the case, saying that there can be no expropriation
unless the formalities in the Expropriation
Act, R.S.A. 1980, c. E-16 are complied with.
We hesitate to agree with this proposition. Those
formalities are there for the benefit of the citizen,
not a malefacting government.
However, we need not deal with the issue because,
in view of the term of the lease, the appellant
had already ceased to have any interest in the lands
before the supposed de facto expropriation
occurred, and any subsequent disruption came as
a consequence of the termination of the lease, which
in turn came as a consequence of the expropriation
of the fee simple. We therefore agree with the dismissal
of the claim by the Land Compensation Board, but
on the ground that no loss was suffered.
 In our view this decision relies on the particular
wording in the lease that provided for it to be cancelled
in the event of an expropriation. This is to be distinguished
from the present case where the lease provides for the
right of the landlord to "resume" all or part
of the land in certain circumstances. Furthermore, this
decision is not binding upon the board and we do not
believe that a full consideration of the conclusion
of the Alberta Court of Appeal or its broader implications
should be undertaken in the absence of evidence before
us as to how MoTH acquired the Waterlot from NFHC.
 MoTH also relied on the case of Re City of
Calgary. In this case, Calgary, instead of proceeding
by way of expropriation, negotiated with the claimant's
landlord for the purchase of the lands. The landlord
notified the claimant that it would not renew the lease
at the end of the term. The claimant was advised by
the landlord that the reason for not renewing the lease
was that the City required the land for road construction
purposes. The Alberta Land Compensation Board relied
on its own earlier decision in Minute Muffler
which turned on the fact that the formal expropriation
procedures had not been followed, and found that the
City had not expropriated any interest of the claimant
in the lands. This reasoning was rejected by the Alberta
Court of Appeal in Minute Muffler and we do
not find it of any assistance in this case.
 The Claimant urged us to find its situation similar
to that of the appellant company in Manitoba Fisheries
Ltd. v. Her Majesty the Queen. In that case a company
had its business of exporting fish from Manitoba shut
down when the Freshwater Fish Marketing Act,
R.S.C. 1970, c. F-13 created a Crown corporation with
a commercial monopoly for the export of fish from participating
provinces. The Crown took the position that while the
effect of the legislation was to extinguish the appellant's
goodwill, nevertheless, the goodwill was not "taken
away" by the Crown or the newly created Crown corporation.
In delivering the judgment of the Court, Ritchie J.
stated at p. 118:
It will be seen that in my opinion the Freshwater
Fish Marketing Act and the Corporation created
thereunder had the effect of depriving the appellant
of its goodwill as a going concern and consequently
rendering its physical assets virtually useless
and that the goodwill so taken away constitutes
property of the appellant for the loss of which
no compensation whatever has been paid. There is
nothing in the Act providing for the taking of such
property by the Government without compensation
and as I find that there was such a taking, it follows,
in my view, that it was unauthorized having regard
to the recognized rule that "unless the words
of the statute clearly so demand a statute is not
to be construed so as to take away the property
of a subject without compensation" per
Lord Atkinson in Attorney-General v. De Keyser's
This case supports the presumption of statutory intent
to compensate where there has been a "taking"
of property, even if the taking is indirect. However,
in Manitoba Fisheries, all the elements of an
expropriation were present: a taking of property by
the federal Crown, under an enactment (the Freshwater
Fish Marketing Act), and without the consent of
the owner. There was also no issue of the effect of
an agreement with the claimant that contemplated a taking
for public purposes. In our view, we do not have sufficient,
or sufficiently similar facts before us at this time
to apply the reasoning in Manitoba Fisheries.
 The Claimant also asked us to consider the case
of Skillion PLC v. Keltec Industrial Research
that involved the interpretation of the words "mechanical
devices" in a lease. At p. 126, Knox J. said:
The contra proferentem rule does not mean
that one has to decide the case, if one possibly
can, against the landlord's interest in every particular
circumstance. The contra proferentem rule
is that in approaching the construction of a clause,
in this case in a lease, one construes the clause
in its context against the interest of the person
who put it forward and had it included in the lease.
As a result, the interpretation of the words "mechanical
devices" was given a wider rather than a narrower
construction, so that the tenant's permitted activities
under the lease were greater.
 In the present case, MoTH is not a party to the
NFHC/Regent Lease. In such a situation the contra
proferentem rule would not normally operate. However,
there is a Head Lease to which the Province is a party.
It is conceivable that the Province put forward some
wording that appears in the NFHC/Regent Lease. The possibility
that NFHC may have been administering the Waterlot for
the different levels of government under the Harbour
Commissions Act may also be relevant to the applicability
of the contra proferentem rule to a clause of
the NFHC/Regent Lease which the Claimant says is ambiguous.
The board is unable to resolve the contra proferentum
issue raised by the Claimant on the factual record that
is before us on these applications.
 NFHC has exercised its rights under the NFHC/Regent
Lease to resume the Waterlot required for government
or public purposes. The Claimant agreed to this taking
by NFHC when it entered into the Regent/Claimant Lease
which contained this right of resumption. We find that
NHFC's exercise of this right was not an expropriation.
While the Claimant's lands have been resumed by NFHC
pursuant to the NFHC/Regent Lease we have no evidence
with respect to the Province's acquisition of the Waterlot
from NFHC. We are therefore unable to find either an
expropriation by MoTH or an exclusion of an expropriation
4.3 Has there been injurious affection with no
4.3.1 Statutory basis
 In the alternative, we were asked to find that
the Claimant is entitled to compensation for "injurious
affection" with no land taken within the meaning
of section 41 of the Act:
Injurious affection if no land taken
||In this section, "injurious affection"
means injurious affection caused by an expropriating
authority in respect of a work or project for which
the expropriating authority had the power to expropriate
|| The repeal of the Expropriation Act,
R.S.B.C. 1979, c. 117, and the amendments and repeals
in sections 56 to 128 of the Expropriation Act,
S.B.C. 1987, c. 23, are deemed not to change the law
respecting injurious affection if no land of an owner
is expropriated, and an owner whose land is not taken
or acquired is, despite those amendments or repeals,
entitled to compensation to the same extent, if any,
that the owner would have been entitled to had those
enactments not been amended or repealed.
 The first consideration is whether the circumstances
in this case fit within the wording of the section.
Section 41 sets out the prerequisites for an owner to
claim compensation for injurious affection with no land
taken. The Claimant alleges potential damages, some
of which may be caused by NFHC in requiring the Claimant
to vacate the Waterlot. But some of the Claimant's alleged
damages may also be injurious affection caused by MoTH
when it constructs the bridge. MoTH is an expropriating
authority with the power to expropriate land. However,
in subsection 41(2) it is only an owner "whose
land is not taken or acquired" who is potentially
entitled to compensation under this section. In this
case the Claimant has had land taken back or resumed
under a lease. While there may be disagreement as to
how the word "taken" ought to be interpreted,
in our view there is some difficulty with the Claimant
making a claim for injurious affection under section
41 when it has incurred a taking under a lease.
 Be that as it may, this board has previously considered
whether there was a statutory basis for a claim for
injurious affection with no land taken when the project
is for a road or bridge constructed by MoTH. See
Warlow and Foste v. MoTH (1997), 60 L.C.R. 218 (B.C.E.C.B.).
On the basis of the decision in Re Ministry of Transportation
and Highways Act (1982), 38 B.C.L.R. 370 (S.C.),
the board in Warlow concluded that there was
no provision for compensation for injurious affection
with no land taken under the legislation in effect when
the present Act came into effect in 1987, namely, the
Highway Act, R.S.B.C. 1979, c. 167 and the Ministry
of Transportation and Highways Act, R.S.B.C. 1979,
c. 280. In Tener v. The Queen in Right of British
Columbia (1982), 24 L.C.R. 266 (B.C.C.A.), Lambert
J.A., speaking for the majority, considered certain
provisions of the Ministry of Highways and Public
Works Act, R.S.B.C. 1960, c. 109 and concluded in
obiter dicta, that the provisions contemplated compensation
for injurious affection with no land taken. The Supreme
Court of Canada decided Tener on different grounds
(32 L.C.R. 340) but did not reject Lambert J.A.'s interpretation
of the statutory provisions. In Re Ministry of Transportation
and Highways Act (1982), Lambert J.A.'s interpretation
of one of the equivalent statutory provisions was considered
and specifically rejected. In view of the differing
judicial interpretations of the statutory provisions,
we consider the decision in Re Ministry of Transportation
and Highways Act (1982) a troubling one, and believe
a further appellate ruling on the issue would be desirable.
However, we can identify no grounds for distinguishing
the Re Ministry of Transportation and Highways Act
(1982) decision from the present case. We believe
the board in Warlow was required to follow the binding
authority of this Supreme Court decision and we do the
 The board concludes that the Claimant does not
have a statutory basis to advance a claim in respect
of the new bridge project under section 41 of the Act.
4.3.2 Common Law tests for injurious affection
 As a result of our finding that the Claimant does
not have a statutory basis for bringing a claim for
injurious affection with no land taken, the board does
not have to consider whether the Claimant meets the
four common law tests for injurious affection set out
by the Supreme Court of Canada in R. v. Loiselle,
 S.C. R. 624, at p. 627.
 However, we would note that in the board's opinion
the Claimant would face the greatest difficulty in meeting
the third test, the "Nature of the Damage Rule".
It is established law that for a claimant to be entitled
to compensation for injurious affection where no land
has been taken, the damage must be an injury to the
land itself and not a personal injury or an injury to
business or trade. In the present case, the claims in
the Form A relate in part to loss of business income
that is not compensable under this Rule. The Claimant
would be entitled to damages only to the extent that
it could show a diminution in the market value of the
remaining waterlot interest as a result of the construction
of the new bridge.
 The Claimant has applied for a determination that
a portion of its leasehold interest in waterlot 6822
has been expropriated or alternatively injuriously affected.
We have found that the Claimant is an owner, but it
has not provided us with sufficient evidence to establish
that there has been an expropriation. We have concluded
that there is no statutory basis for a claim for injurious
affection with no land taken. The Claimant's applications
are therefore dismissed.
 MoTH has requested a determination that the board
lacks jurisdiction to consider the claims set out in
the Form A. MoTH has not provided us with sufficient
evidence to exclude an expropriation and therefore we
deny this application. MoTH has also applied for an
order that the Claimant's Form A be struck under Rule
19(24) of the Rules of Court. The test for the applicability
of this rule is to assume that the facts set out in
the pleadings are true. On its face the Form A pleads
that there has been an expropriation. If we assume that
this can be proved there is no basis for striking the
Form A under Rule 19(24). As a result this application
is also denied.
 In summary, both parties' applications are denied
and the Form A stands. The lack of evidence on how the
Province acquired the Waterlot from NFHC was critical
to this result. This matter may be set down, on further
evidence, for a hearing on the issue of whether the
Claimant's interest in the Waterlot was expropriated
by MoTH or, in the alternative, whether an expropriation
of the Claimant's interest has been excluded.