February 22, 1995, E.C.B. No.: 73/91/84 (55 L.C.R. 125)

Between: Bayview Builders Supply (1972) Ltd.
Claimant
And: Her Majesty The Queen in Right of the Province of British Columbia
as represented by the Minister of Transportation and Highways
Respondent
Before: Susan E. Ross, Board Member
Sharon I. Walls, Board Member
Appearances: R. Brian McDaniel, for the Claimant
Sarah Macdonald, for the Respondent

 

1. APPLICATION

The respondent, the Crown Provincial as represented by the Minister of Transportation and Highways, has brought a motion for an order striking paragraph 4 (p) (e) of the Amended Form A of the claimant, Bayview Builders Supply (1972) Ltd., as disclosing no reasonable cause of action. The respondent has helpfully cited to the board several leading and recent decisions by the Courts and by the board on the test to be applied on a Rule 19 (24) application under the Supreme Court Rules. In a related argument, the respondent has also asked the board to determine that the board has no jurisdiction to entertain the claim set forth in paragraph 4 (p) (e). Paragraph 4 (p) (e) is a claim under ss. 30, 33 and 39 of the Expropriation Act for the recovery of relocation costs relating to Bayview's building supply business, the corner of the property for which was the subject of a partial taking by the Ministry. The respondent maintains that the relocation costs claim is a claim for reinstatement and that such claims are only permitted by s. 34 of the Act, which is clearly not applicable here. The respondent also says that because Bayview's business has not yet been relocated, the relocation costs claim is too speculative and remote to be a reasonable cause of action.

In the alternative, the respondent seeks an order severing the quantum in respect of paragraph 4 (p) (e) from the determination of liability on all issues and quantum on all issues except paragraph 4 (p) (e).

In the further alternative, the respondent seeks orders for particulars of the paragraph 4 (p) (e) claim and an adjournment of the hearing of the compensation claim scheduled to commence on March 6, 1995. Finally, the respondent's motion seeks orders relating to the claimant's claim of "constructive expropriation"; this aspect of the motion was adjourned generally by the board at the request of the respondent and with the consent of Bayview.

 

2. RELOCATION COSTS

The Patterson case, cited by the respondent, does present factual parallels to the case at hand. In Patterson, the Board determined that relocation costs in the sense of compensation for reinstatement were not disturbance damages under ss. 30 and 33 of the Act, because they were neither directly attributable to the disturbance caused by the partial taking, in that case, nor were they costs necessarily incurred in acquiring a similar interest or estate in other land than the land taken. The ratio in this decision appears to have been significantly fact driven. The Board in Patterson was not satisfied that the evidence established that the Patterson's relocation had indeed been necessary or directly attributable to the partial taking in issue. The Board did not decide that relocation costs could never be recovered, in whole or in part, as losses under ss. 33 or 39.

It is also significant that s. 33 (3) was not considered in Patterson as the claim there was for personal not business losses. The question remains open whether or not business losses under s. 33 (3) can be claimed in respect of a partial taking. Coates, J.A., New Law of Expropriation, states at p. 35 - 98.2:

In British Columbia, the plain language of subsection (3) would indicate that the provision does include compensation for reasonable business losses on a relocation directly attributable to the expropriation where only part of an owner's land is taken.

This is not to say that the board has decided that Mr. Coates is correct in his interpretation, but it does suggest that it is not plain and obvious that the claimant's claim under s. 33 must fail.

In the course of argument, the board also raised s. 39 (2) to counsel (s. 33 (2) may also be relevant). Counsel for the respondent adopted the position that, even if relocation costs could be claimed as business losses under s. 39, they had not yet been sustained in this case because the Bayview business has not yet been relocated at all and the Ministry is not consenting under s. 39 (2) to such a claim being determined before at least 6 months after the loss is sustained. This is consistent with the respondent's contention that the paragraph 4 (p) (e) claim is speculative and remote or, in the words of counsel for the claimant, "not yet crystallized". Counsel for the claimant submitted in reply that the business loss claimed has been sustained and it is only relocation "costs" that have not yet been incurred. The board is reluctant to opine on the effect of s. 39 (2) (or s. 33 (2)) as they were not raised or fully argued by the parties on this motion; however, the board does regard this to be a live issue that is linked to the respondent's submission that the relocation costs claim is too speculative and remote to be a reasonable claim. The board has decided that in these circumstances, this aspect of the respondent's motion should be adjourned for determination, should the respondent choose to continue to pursue it, by the panel that hears that compensation claim commencing on March 6, 1995.

In conclusion, the board is not satisfied, that the test for striking pleadings has been met in respect of the claim for relocation costs under ss. 30, 33 and 39. The board does not find it necessarily plain and obvious that relocation costs could never be a component of losses under ss. 30, 33 or 39. It follows that it is also not plain and obvious that the board has no jurisdiction to entertain such claims. It is necessary, however, for the claimant to amend its Form A to plead that the relocation is necessary and the board so orders.

 

3. SEVERANCE

Counsel for the claimant candidly, though reluctantly, conceded that in all the circumstances he could not strenuously object to the respondent's motion for severance of the determination of quantum on the relocation costs claim. Those circumstances include the fact that the hearing of the compensation claim is scheduled to commence on March 6, 1995, but the Form A was only amended in late January to add the claim for relocation costs. A relocation has not yet occurred and the amounts being claimed under paragraph 4 (p) (e) continue to change.

The board agrees and orders that quantum for the relocation costs claim is severed from the determination of all other issues, liability and quantum, which will go forward at the hearing of the compensation claim on March 6, 1995.

 

4. OTHER MATTERS

In view of the order for severance, it is unnecessary for the board to deal with the respondent's alternative prayers for particulars or for an adjournment of the hearing of the compensation claim.

 

 

Government of British Columbia