November 24, 2000, E.C.B. No. 41/00/191
(71 L.C.R. 185)
and Mary Dawson Barclay
W. Shorthouse, Chair|
Appearances: E. Sigurd Ruud, Counsel For The Claimant|
Thomas R. Humphries,
Counsel For The Respondents
The claimant, Eugene Deneault, is the registered owner in fee simple of a parcel
of land located near Kaslo, British Columbia, the legal description of which is
PID 014-216-701, Lot 1, District Lot 819, Kootenay District, Plan 6168 ("Lot
1"). The claimant is also the registered holder of two conditional water
licences nos. 39288 and 39724 authorizing the diversion and use of water from
a creek known as Curle Brook for domestic and irrigation purposes. The respondents,
Winston Churchill Barclay and Mary Dawson Barclay, are the registered owners in
fee simple of an adjacent parcel of land to the west of Lot 1, the legal description
of which is PID 009-486-887, Lot A, District Lot 819, Kootenay District, Plan
15632 ("Lot A").
 In April, 2000, pursuant
to section 27 of the Water Act, R.S.B.C. 1996, c. 483, and section 26 of
the Water Regulation, B.C. Reg. 204/88, the claimant filed with the comptroller
of water rights in Victoria and the registrar of land titles in Kamloops a notice
of intent to acquire an interest in the respondents' land in the form of an easement,
a plan showing the area to be acquired, a draft of the proposed instrument, and
a statement of the amount of compensation offered. These documents were also served
on the respondents.
 On July 18, 2000, pursuant to section
30 of the Water Regulation, the claimant filed an application for determination
of compensation with the Expropriation Compensation Board, requesting that an
order be made determining the following:
the nature and terms of the conveyance or instrument required to give effect to
the expropriating licensee's right under section 27 of the Water Act to
expropriate the land reasonably required in accordance with that section; and
the amount of compensation to be paid for the affected land.
By notice of motion filed on November 2, 2000, the respondents have applied to
the board for an order quashing the notice of intent to acquire an interest in
land and the application for determination of compensation in this matter as being
barred by the doctrine of res judicata. The respondents also seek an order
 The respondents' motion was heard by teleconference
on the morning of November 8, 2000. I heard the application alone in my capacity
as chair of the board and in exercising the powers and jurisdiction of the board
under section 26(5) of the Expropriation Act, R.S.B.C. 1996, c. 125. The
hearing lasted approximately two hours.
 It is common ground that the claimant is
a "licensee" for the purposes of the Water Act. Subsections 27(2) and
(5) of the Water Act provide as follows:
licensee has the right to expropriate any land reasonably required for the construction,
maintenance, improvement or operation of works authorized under his or her licence.|
owner of land expropriated under this section must be compensated for it by the
licensee, and the procedure to be followed in expropriating land and the method
of determining the compensation is the prescribed procedure and method.|
It follows on its face that the claimant
in this matter has the rights of an expropriating licensee, including the right
to apply to the board for the order sought in his application for determination
 The issue of res judicata arises
out of the fact that there is already a registered water easement across Lot A
in favour of Lot 1 and that the terms of that easement have been the subject of
several court applications and judgments since 1994. The question is whether these
prior judicial decisions have the effect, as the respondents contend, of already
finally determining the fundamental issues which would otherwise be before the
board so as to bar the claimant from bringing his application.
Since June 30, 1950, there has been registered on title to what is now Lot A under
no. 35243 an easement in favour of Lot 1. The easement is stated to be "for
a pipeline". It allows the owner of Lot 1, and his, her or their heirs or
assigns in perpetuity, "to occupy and use a strip 10 feet wide for the purpose
of constructing, reconstructing, operating and maintaining the aforesaid pipes,
ditches, flumes or other water conduits". The easement, which is appurtenant
to Lot 1, is a charge not only upon the respondents' land but also upon land adjacent
to Lot A to the west, the current registered owner of which is one Vincent Kana.
The claimant's water pipeline, which appears to pass nearly through the middle
of the respondents' land but is buried to a depth of six feet, is connected to
a water box situated on the Kana land.
 The easement
was already in place when the claimant and the respondents purchased their respective
lands. The claimant purchased Lot 1 in 1967 and the respondents purchased Lot
A in 1985. Over the ensuing years after 1985, conflict arose between the parties
over the frequency and manner of the claimant's entry onto the respondents' land
for the ostensible purpose of inspecting and maintaining his water pipeline and
accessing the water box on the Kana land. Eventually, this conflict, described
in one legal decision as a "festering problem", led to litigation in
 Based on a review of the materials provided
by the respondents on this application, I would summarize the chronology of proceedings
relevant to my determination as follows:
March 3, 1994, the respondents applied in the Supreme Court of British Columbia
to modify easement no. 35243 to restrict, except for the purpose of actually repairing
the water pipeline, the frequency with which the claimant could enter onto the
respondents' land to inspect the pipeline area. The application was made pursuant
to section 31 of the Property Law Act, R.S.B.C. 1979, c. 340.
May 16, 1994, Cooper J. in written reasons modified the easement by limiting the
claimant's access for the purpose of inspecting the water pipeline or the water
box to one day per month. The claimant would continue to have access at any time
for repairing or replacing the pipeline. Each entry was to be made without undue
disturbance of the owners or occupiers of the land. See Winston Churchill Barclay
and Mary Dawson Barclay v. Eugene Denault, unreported, May 16, 1994, No. 3883,
On June 8, 1994, the claimant
filed a notice of appeal in the British Columbia Court of Appeal, seeking an order
that the judgment of Cooper J. be set aside.
October 10, 1995, the claimant's appeal from the judgment of Cooper J. was heard,
and dismissed, by the Court of Appeal. See Winston Churchill Barclay and Mary
Dawson Barclay v. Eugene Denault, unreported, October 10, 1995, No. CA018968,
On August 26, 1999, the
claimant filed a notice of motion in Supreme Court seeking an order that he be
allowed to exercise his rights in accordance with the order of Cooper J. The respondents
in turn filed a notice of motion for an order dismissing the claimant's application.
On October 12, 1999, the foregoing notices of
motion were heard by Neilson J. In oral reasons for judgment pronounced at the
conclusion of the hearing, Neilson J. dismissed the claimant's motion on the basis
that it was unnecessary, pursuant to Rule 19(24)(b) of the Supreme Court Rules.
See Winston Churchill Barclay and Mary Dawson Barclay, unreported, October
12, 1999, No. 3884, Nelson (BCSC).
 To complete
the picture, I should also note that on two occasions the respondents brought
applications in Supreme Court for an order that the claimant was in contempt of
court for having disregarded the terms of the order of Cooper J. On June 12, 1995,
the claimant was found to be in contempt. However, while the past conduct of the
parties may become relevant if the board finds that it has jurisdiction to determine
the nature and terms of the instrument under section 30 of the Water Act,
it is not in my view relevant to the threshold issue of res judicata which
is before me on this application.
 In paragraphs (i)
through (o) of the statement of claim forming part of the application for determination
of compensation filed with the board, the claimant makes certain allegations of
fact which I consider sufficiently relevant on this motion to set out fully here.
They read as follows:
"(i) The present
easement, as modified, has proven over the past six years to be insufficient for
the Claimant to effectively exercise his rights under the water licences to maintain
and improve the water box and pipeline.
(j) The water box
is in serious need of repair and will require machinery to be brought to the location
of the water box.
(k) There are serious difficulties encountered
in the Fall, Winter, and Summer months with debris such as leaves, sticks, rocks,
and as well, with freezing, that require the Claimant to inspect the water box
approximately every 2 to 3 days. The present easement does not allow for this.
The Claimant is nearly sixty years of age and suffers health problems which make
it difficult to inspect the water box and pipeline and he requires the ability
to carry out inspections and maintenance with the use of a motor vehicle. This
will require an easement of 15 feet width in order to construct a road. A small
bridge will have to be constructed on the easement at a point on the Respondent's
property where Curle Brook intersects the easement.
The circumstances of the Claimant have changed over the past six years to the
extent that the Claimant reasonably requires an easement of 15 feet width with
motor vehicle to effectively construct, maintain, improve and operate the works
under the water licenses.
(n) Pursuant to s. 27 of the
Water Act and s. 26 of the Water Regulation, the Claimant has served
Notice of Intent to expropriate an expanded easement of 15 feet in width across
the Respondent's land for the purpose of constructing, reconstructing, operating
and maintaining pipes, ditches, flumes or other water works on the Respondent's
land, and the water box on the property adjoining the Respondent's land and to
include motor vehicle access and the right to build a road and bridge, and with
such easement rights to be exercised reasonably and without undue disturbance
to the Respondents.
(o) The Claimant has offered the sum
of $500.00 as compensation on the basis of the value of the additional five foot
strip of land being expropriated beyond the current 10 foot wide easement. The
Claimant is willing to pay for a legal survey of the expanded easement."
 The respondents submit that,
in an expropriation proceeding before the board under the Water Regulation,
the fundamental issue to be determined would be the nature and terms of the instrument
required by the claimant to give effect to his right to access his water pipeline
and water box for the purpose of constructing, reconstructing, operating and maintaining
them. This fundamental issue, the respondents say, is precisely the issue which
has already been before the courts and which has been finally determined by them.
From the claimant's notice of intent and statement of claim the respondents identify
the particular issues raised by the claimant as being his need to make water box
repairs, his concern about crossing the adjacent Kana property to access the water
box, his need for vehicular access, his health problems, and his concern generally
that the easement as modified has proven insufficient to allow him effectively
to exercise his rights. The respondents refer to the affidavit and factum material
filed in various court proceedings concerning the existing easement as well as
the judgments of the courts themselves, all of which were placed before me, as
evidence that each of these issues has been frequently addressed and disposed
of in the prior litigation. The respondents argue that the claimant, under the
guise of an expropriation proceeding, is seeking to re-open those issues and,
in effect, undo what the Supreme Court and the Court of Appeal have already decided.
Respondents' counsel summarized the principle of estoppel by res judicata
as containing the following three constituent elements:
There has been a final judicial decision pronounced by a court of competent jurisdiction;
The judicial decision was, or involved, a determination of the same question as
that sought to be controverted in the present litigation; and
The parties to the judicial decision were the same persons as the parties to the
Mr. Humphries argues that
all of these constituent elements have been met in the present instance and, accordingly,
the claimant is barred from launching proceedings before the board which call
into question issues which have already been decided between the parties. In support
of those submissions, respondents' counsel referred to the judgment of the Supreme
Court of British Columbia in Bank of B.C. v. Singh (1987), 17 B.C.L.R.
(2d) 256, and the cases cited therein, as well as to the commentary on the principle
of res judicata in J. Sopinka, S.N. Lederman & A.W. Bryant, The
Law of Evidence in Canada, Second Edition (Toronto and Vancouver: Butterworths,
1999), at pp. 1068-1092.
5. THE CLAIMANT'S
 The claimant submits that, in making
application to the board, he is properly exercising his rights as an expropriating
licensee under the provisions of the Water Act and the Water Regulation.
The issues to be determined by the board are dictated by section 30 of the Water
Regulation, namely, the nature and terms of the instrument required to give
effect to the claimant's rights as an expropriating licensee and the amount of
compensation to be paid. These issues, the claimant argues, are different from
the issues which were before the courts. Those issues involved, in earlier proceedings,
the frequency with which the claimant could exercise his right of access under
an existing registered easement, and in later proceedings, whether the respondents
were interfering with the claimant's right of access under the easement as modified
by the court. None of these court proceedings considered the expropriation provisions
of the Water Act and the Water Regulation and, consequently, there
has been no final decision of any court or tribunal determining the claimant's
rights or obligations under them. Indeed, the claimant says, his application before
the board will be the first and only time that the rights of the parties under
these enactments are to be determined.
 The claimant
says that, by relying upon the affidavit and other material filed by the parties
in the earlier court proceedings, the respondents are confusing the determination
of issues by the courts with the evidence heard in those proceedings. Those proceedings,
he argues, clearly dealt with different issues. The claimant acknowledges that
some of the evidence that was before the courts would also be before the board
but this does not prevent the board from determining, for the first time, issues
which fall to be decided under the Water Act and the Water Regulation.
Claimant's counsel, Mr. Ruud, therefore submits that the first two of the three
constituent elements of estoppel by res judicata, as summarized by respondents'
counsel, are not satisfied in the present instance and the tests set out in the
Singh case have not been met.
The authors of The Law of Evidence, at p. 1078, point out that there are
two principles subsumed under the heading res judicata. The first is that
any action or issue which has been litigated and upon which a decision has been
rendered cannot be retried in a subsequent suit between the same parties. This
principle, they note, prevents the contradiction of that which was determined
in the previous litigation by prohibiting the relitigation of issues already actually
addressed. The second principle makes it mandatory that a plaintiff asserting
a cause of action must claim all possible relief in the first instance and prevents
a second attempt to invoke the aid of the courts in the same cause. It is the
first of these principles which is engaged on this application.
The Singh case involved a foreclosure action wherein the bank applied for
and obtained an order approving a sale of the foreclosed property at a specified
price. The property resold less than a year later for a much higher price. The
mortgagors, who had opposed the bank's application for approval of the sale, later
brought an action against the bank and its appraisers alleging negligence and
breach of fiduciary duty arising from the sale. Hardinge L.J.S.C. (as he then
was) held that the fundamental issue in the previous proceedings was the fair
value of the property and whether the sale was prudent. This was precisely the
issue now raised by the mortgagors. The mortgagors were therefore barred by the
doctrine of res judicata, and more particularly by issue estoppel and cause
of action estoppel, from relitigating the issue.
germane to the application before me is the question of issue estoppel. Issue
estoppel precludes a litigant from rearguing an issue that was before the courts
previously. With reference to decisions from both the House of Lords and the Supreme
Court of Canada, the Court in Singh pointed out at p. 261 that an issue,
to give rise to an estoppel, must have been "fundamental to the decision
arrived at" in the earlier proceeding. The Court quoted from the judgment
of Huddart L.J.S.C. (as she then was) in Hamada v. Northguard Mtge. Corp.
(1985), 67 B.C.L.R. 115, who said as follows at p. 119:
I understand it, issue estoppel requires that the 'issue' which 'has been decided',
on which it is sought to found the estoppel, be so fundamental to the earlier
substantive decision that the decision could not stand without it. If such is
the case, then both parties are estopped from raising that issue in any subsequent
proceedings whether the same cause or any other is raised.
At p. 1069 of the The Law of Evidence, the authors make the further point
that, although the principle of res judicata is sometimes referred to as
a rule of substantive law, the better view is that it is a rule of evidence. Accordingly,
they say, at p. 1092:
In order to determine
the identity of the actions or issues, the court should consult the pleadings,
judgments, reasons for judgments and other formal documents relating to the previous
proceedings. These documents are admissible without formal proof.
A review of such documents in the court proceedings involving the claimant's registered
easement reveals that they did not in any way address the issue of what rights
or obligations the claimant may have as an expropriating licensee under the Water
Act and the Water Regulation. The focus was entirely upon the existing
easement which predated the claimant's acquisition of Lot 1 and his obtaining
the conditional water licences.
 The reasons for judgment
of Cooper J. in May, 1994 note that the claimant is the holder of water rights
under licence. However, the fundamental issue before the court was whether the
registered easement should be modified pursuant to what was then section 31 of
the Property Law Act to restrict the claimant's access to the easement
area. The judgment is principally concerned with changes in the character of the
neighbourhood and the properties in question since 1950 when the easement was
registered which, in the learned judge's opinion, made the claimant's unrestricted
right of access granted by the easement unreasonable and his exercise of that
right excessive in the circumstances. The claimant's appeal from the judgment
of Cooper J. was dismissed by the Court of Appeal in October, 1995 without reasons
 The reasons for judgment of Neilson
J. in October, 1999 flowed from the claimant's application for an order that he
be allowed to exercise his rights pursuant to the earlier order of Cooper J.,
and the respondent's application that the claimant's motion be dismissed pursuant
to Rule 19(24) of the Supreme Court Rules. The claimant alleged that the respondents
were interfering with those rights by harassing and assaulting him when he entered
their property to access his waterline and water box, erecting a satellite dish
and growing trees on the easement area, preventing him from erecting a bridge
across Curle Brook, and placing a no trespassing sign on the easement. Neilson
J., without going into the merits of the claimant's allegations all of which the
respondents denied, held that the claimant's application should be dismissed under
Rule 19(24)(b) as "unnecessary" since there were "other remedies
available to Mr. Denault, in particular under the Water Act", in view
of the fact that the claimant also had a water licence as well as the easement.
The remedies to which Neilson J. referred were those of contempt, an injunction,
or both civil and criminal proceedings which are allowed by the Water Act.
Again, there was no consideration of the claimant's "remedies" in the
nature of expropriation proceedings.
the question remains whether the issues which would be before the board in an
expropriation proceeding are fundamentally those which the courts have already
finally determined. To assist in answering this question, it is useful to refer
to the decision of this board in Spur Valley Improvement District v. Checkman
Holdings (Calgary) Ltd. (1999), 67 L.C.R. 106. This is the only case in which
the board has thus far actually applied the provisions of section 30 of the Water
Regulation. The board expressed the view that proceedings under section 30
logically require a two-stage hearing and went on to state at p. 108:
In the first stage the board determines the nature and terms
of the instrument, including the legal nature of the interest taken, the precise
area of the taking, the character of the works to be constructed and maintained,
and the governing terms and conditions. Once those matters have been decided,
and the parties are then able to marshall appraisal and other evidence based upon
them, the board in the second stage determines the amount of compensation to be
 The first issue for determination
identified by the board is "the legal nature of the interest taken".
In Spur Valley the board observed at p. 114 that the parties were
in agreement that, to the extent required, the appropriate legal interest would
be by way of statutory rights of way creating easement areas "rather than,
for example, by way of mere licence or fee simple transfer". In the present
instance, the claimant has given notice of intent to acquire an interest in the
respondents' land in the form of an easement, a legal interest identical to that
which he already possesses. However, it does not necessarily follow that this
is the interest which the board, on hearing the claimant's application, would
determine to be appropriate. The issue of legal interest, to the extent that it
is or might become an actual issue, is not one which was canvassed in any of the
prior court proceedings which simply dealt with the parties' rights under the
existing registered easement.
 The second issue for
determination identified by the board is "the precise area of the taking".
The existing easement is of a strip 10 feet wide, the precise location of which
appears not to have been identified by metes and bounds description within the
easement document or in any survey plan prepared and registered in connection
with it. The claimant as expropriating licensee seeks an amended easement agreement
which, for reasons set out in the statement of claim as noted above, expands the
easement area from the present 10 feet to 15 feet in width. He proposes to have
its precise location determined by legal survey.
respondents concede that the proposed widening of the easement area is not an
issue which was directly before the courts on any previous application. However,
they also say that the claimant's stated need for vehicular access, which appears
to be the primary reason for the proposed widening and also for a proposed bridge
across Curle Brook, has been addressed frequently in the past litigation. The
claimant's stated health problems which partly underlie his stated need for vehicular
access, the respondents note, were also put in issue.
While I agree that these matters are raised in some of the affidavit material
which was before the courts, in my view it is not accurate to say that they were
addressed, much less disposed of, in any of the judgments rendered. It is perhaps
open to question whether a circumstance personal to the claimant such as his stated
health problems would be a relevant consideration by the board in fixing the dimensions
of an easement area but, in any case, the matter of the precise area of the taking
has not previously been the subject of a judicial decision.
The third issue for determination identified by the board is "the character
of the works to be constructed and maintained". Insofar as the works comprise
a water pipeline and a water box, there was no real issue before the courts as
to their character except inasmuch as the claimant's replacement of the original
steel pipeline with a 4 inch plastic pipeline buried to a depth of 6 feet in about
1984 led Cooper J. to conclude that this change in circumstance was a factor which
rendered unnecessary the claimant's constant inspection of the pipeline. The proposed
construction of a road on the easement was not an issue which was before the courts.
The claimant deposed in an affidavit in support of his application before Neilson
J. that a bridge was required on the easement to cross the creek, and the respondents
through an affidavit produced documentation indicating that such a proposed structure
had not met with the approval of the Ministry of Environment, Lands and Parks.
However, neither this matter nor any other was decided on its merits in the judgment
 The fourth issue for determination
by the board concerns "the governing terms and conditions". Some of
the foregoing issues would likely have a bearing on the terms and conditions in
any conveyance or instrument which the board might determine as reasonable and
appropriate in the circumstances. The judgment of Cooper J., the appeal from which
was dismissed, dealt only with the issue of frequency of access by the claimant
onto his easement on the respondents' land, with the added proviso that each entry
was to be made without undue disturbance of the owners or occupiers of the land.
It is with respect to frequency of access that the principle of issue estoppel
has some application to this matter. The board is being asked, in the context
of an expropriation proceeding, to reconsider the issue of frequency of access
to the water box for both inspection and maintenance and repair. The order of
Cooper J. limited access across Lot A to both the pipeline and the water box for
the purpose of inspection to one day per month. Although the order provided unrestricted
access to the pipeline for the purposes of repairing or replacing it, the order
was silent as to access to the water box for those same purposes. In his statement
of claim the claimant asserts a need to inspect the water box approximately every
2 to 3 days during certain seasons of the year. He made very similar assertions
in an affidavit which was before Cooper J., and it must be assumed that the learned
judge, by the order made, was not persuaded by that evidence.
In these circumstances I am of the opinion that the board is foreclosed by the
prior judicial decision from reconsidering that particular issue at least insofar
as access across Lot A to inspect the water box is concerned. To find otherwise
would be to open to possible contradiction that which has already been decided
as between the parties. Although the claimant seeks a determination by the board
of his rights as an expropriating licensee rather than as the owner of an existing
easement, I consider the reasoning of Madam Justice Huddart in Hamada to
apply and that "both parties are estopped from raising that issue in any
subsequent proceedings whether the same cause or any other is raised."
 The final issue for the board's
determination, which as indicated above would be dealt with in the second stage
of the hearing, is the amount of compensation to be paid by an expropriating licensee
to the owner or owners whose land has been affected by the taking. It is obvious
that no issue of compensation has arisen in any of the prior proceedings before
the court which concerned an existing perpetual easement, registered on title
prior to when the parties acquired their respective lands. Because the claimant
already has a 10 foot wide easement registered in favour of Lot 1, he evidently
takes the position that any compensation to be awarded to the owners of Lot A
would only be in respect of the proposed 5 foot widening of the easement area.
In that regard I would merely observe that section 31 of the Water Regulation
makes applicable to this determination all of the provisions on compensation contained
in sections 31 through 44 of the Expropriation Act.
Upon reviewing the evidence and submissions of the parties in light of the applicable
law, I conclude that the claimant's notice of intent to acquire an interest in
land and his application for determination of compensation before the board are
not barred by the doctrine of res judicata. The parties to the previous
judicial proceedings in question are the same as the parties to the present proceeding,
and some of the evidence adduced in those proceedings will undoubtedly be germane
here. However, except with respect to frequency of access for inspection purposes,
the judicial decisions pronounced are not, in my view, a determination of all
the fundamental issues which would be before the board, as I have described them,
in respect of the claimant's rights and obligations as an expropriating licensee
under the Water Act and the Water Regulation. Accordingly, the respondents'
application for an order quashing the claimant's notice of intent and application
for determination of compensation is dismissed.
unnecessary to the decision I have reached, I feel obliged to observe that the
claimant's application to the board in its present form fails to address a central
fact, which is that part of the claimant's water system, and in particular his
water box, is not located on the respondents' Lot A but on the adjacent Kana land
to the west. The claimant's stated concern about inspection and repair of the
water box is clearly a major factor in his application to the board. In the past,
as his own affidavit evidence attests, he has frequently accessed the water box
by crossing the Kana land from a public roadway lying adjacent to it and with
the permission of the owner. It is difficult to see how a proper determination
of the claimant's rights and obligations as the holder of conditional water licences,
entitled to expropriate land reasonably required for the works authorized under
them, can be made without directly addressing that fact. The owner of the adjacent
Kana land is not a party to these proceedings. If the claimant intends to proceed
with his application, I would urge him to consider making amendments to overcome
this potential difficulty accordingly.
 The respondents
were largely unsuccessful on this application and in the circumstances I make
no award of costs. However, the parties will be at liberty to make submissions
as to the costs of this application at the conclusion of these proceedings pursuant
to section 32 of the Water Regulation.