January 13, 1997, E.C.B. Control No. 03/94/132 (60 L.C.R. 211) 

 

Between: Dale Todd McEachern
Claimant
And: City of Nanaimo
Respondent
Before: Robert W. Shorthouse, Chair
Fiona M. St. Clair, Vice Chair
Susan E. Ross, Board Member
Appearances: Robert S. Cosburn, for the Claimant
Robert C. Macquisten, for the Respondent

 

1.0 INTRODUCTION

This is a companion case to the decision of the board in McEachern v. British Columbia Hydro and Power Authority, E.C.B. Control No. 01/94/131 (the "Hydro decision"). The Hydro decision determined that the presence of a hydro pole and lines on Mr. McEachern's land, without any acts or intended acts of statutory occupation or taking, was not, in law, a de facto expropriation of or other compulsory interference with his land. The board therefore concluded it had no jurisdiction under the Expropriation Act, S.B.C. 1987, c. 23 (the "Act") or s. 16 of the British Columbia Hydro and Power Authority Act, R.S.B.C. 1979, c. 188, to hear and determine that compensation claim.

This decision concerns the same claimant and the same land, which is in the City of Nanaimo and is owned by McEachern, but instead of being aimed at the Hydro authority and its pole and lines, this compensation claim is aimed at the City of Nanaimo for the presence on the land of its water lines and meters and sewer lines. The intrusion of part of an adjacent road, called Short Avenue, is also alleged.

The board has considered the pleadings, which consist of the compensation claim form and Nanaimo's reply to it, and both parties' written submissions. As in the Hydro decision, we have assumed that the facts in this compensation claim can be established, and have not found it necessary to weigh or resolve contested facts. Nanaimo's submissions included two plans, one of which shows water and service lines on the land. McEachern accepted the accuracy of that plan for the purposes of this decision.

Nanaimo's submissions also included copies of registered documents (including driveway access easements) affecting the title to the land, a statement from a previous owner of the land about the location of Short Avenue vis-a-vis the property, and that previous owner's apparent consent to the installation of water and sewer lines. With respect to the alleged prior consent McEachern's position before us was that, even if such consent was given, it is irrelevant because:

[i]n the absence of registration of a statutory right of way or other appropriate charge, successors in title to any persons who may have earlier "consented" to the installation of the works are not bound by any such consent.

These materials have not had any critical bearing on our determination of whether, as a matter of law, the presence of Nanaimo's works on the claimant's land constitutes a de facto expropriation or other compulsory interference, compensable in proceedings before the board.

 

2.0 FACTS

McEachern purchased his property in July 1993 and shortly thereafter his title was registered in the Land Title Office. Water lines and meters and sewer lines belonging to Nanaimo were already on the land at the time of the purchase. It appears that the works were installed around 1965 by a preceding local authority, when the land was part of the Harewood Improvement District and before it came within Nanaimo's boundaries. McEachern says that he has never consented to or been paid any compensation for the presence of the works on his land and that they interfere with its use and development capability and reduce its value. He acknowledges, however, that no bylaws have been passed under the Municipal Act, R.S.B.C. 1979, c. 290 to formally effect an expropriation or other interference with McEachern's land under that legislation.

Nanaimo admits that, though water lines have been on McEachern's land for many years, it has never had any registered interest in the land. There is no evidence that Nanaimo ever paid compensation to anyone in respect of these works, or complied with statutory procedures or formalities for interference with or taking of this land. In fact, Nanaimo, like Hydro, has pled and argues, without contest from the claimant, that despite the presence of its works on McEachern's land it has never intended, or undertaken by its actions, to exercise any statutory machinery or powers for compulsory taking or interference with the land.

 

3.0 COMPENSATION CLAIM

McEachern claims compensation for the value of land taken or occupied, injurious affection to the remainder of his land, disturbance damages, costs and interest. He says that his land has been de facto expropriated, or entered upon, possessed and used, by Nanaimo under ss. 529 (1), 544, 578 (3.1), 611 (4.1) and 635 (3) of the Municipal Act. The relevant parts of those provisions are set out below:

529. (1) The council may, subject to the restrictions in this Act, acquire for municipal purposes any real property or rights, easements, rights of way or privileges in and to it from Canada or the Province, or from any person.

544. (1) The council shall make owners, occupiers or other persons interested in real property entered on, taken, expropriated or used by the municipality in the exercise of any of its powers, or injuriously affected by the exercise of any of its powers, due compensation for any damages necessarily resulting from the exercise of those powers beyond any advantage which the claimant may derive from the contemplated work.

578. (1) The council may by bylaw

(a) authorize the establishment, widening, alteration, relocation or diversion of a highway or a portion of it;

***

(2) The council may

(a) lay out, construct, maintain and improve highways or any portion of them;

***

(3) In addition to any other powers dealing with the acquisition of real property which the council may exercise, the council may by bylaw enter on, expropriate, break up, take or enter into possession of and use any real property in any way necessary or convenient for any purposes mentioned in subsections (1) and (2) without the consent of the owners of the real property.

(3.1) Where the council exercises a power under subsection (3) that does not constitute expropriation within the meaning of the Expropriation Act, compensation, determined by the Expropriation Compensation Board, is payable for any loss or damages caused thereby.

611. (1) The council may by bylaw provide for the establishment of a system of sewer works for the collection, conveyance and disposal of sewage, or drainage works for the impounding, conveying and discharging of surface and other waters, or both, or a combination of them ... .

(4) In addition to any other power to acquire property which the council may exercise, the council, by its servants, may enter on, and council may by bylaw expropriate, break up, take or enter into possession of and use, any property within or without the municipality in any way necessary or convenient for any of the purposes mentioned in this section without the consent of the owners of the property.

(4.1) Where the council exercises a power under subsection (4) that does not constitute an expropriation within the meaning of the Expropriation Act, compensation, determined by the Expropriation Compensation Board, is payable for any loss or damages caused thereby.

635. (2) In addition to any other power to acquire property which the council may exercise, the council, by its servants, may enter on, and the council may by bylaw expropriate, break up, take or enter into possession of and use, any property in or out of the municipality in any way necessary or convenient for any purposes mentioned in subsection (1), and sections 632 and 633, without the consent of the owners of the property.

(3) Where the council or an employee of the council exercises a power under subsection (2) that does not constitute an expropriation within the meaning of the Expropriation Act, compensation, determined by the Expropriation Compensation Board, is payable for any loss or damages caused thereby.

 

3.0 THE PARTIES' POSITION

3.1 Position of Nanaimo

In its Form B Nanaimo admits that it has a sewer line on McEachern's land, but not the presence of a water line or meters. However, the plan tendered with Nanaimo's written submissions to us show a sewer line and a water line and meters. Nanaimo denies that Short Avenue encroaches on McEachern's land, but also says that, in any event, McEachern's title would be subject to such an encroachment under s. 23 (1) (e) of the Land Title Act, because Short Avenue is a public highway under s. 4 of the Highway Act.

Nanaimo says that it has never intended to take any part of McEachern's land without his consent and that McEachern is estopped from making this compensation claim because the works and services and road were installed with the knowledge and consent of previous owners of the land. Like Hydro, Nanaimo maintains an expropriation, in this case what McEachern claims is a de facto expropriation, cannot exist when Nanaimo:

... has taken no action or steps whatsoever to take any land, nor has it ever evidenced any intention to do so ... something that never was an expropriation, does not simply become an expropriation through the revocation of consent without any further or other steps or action having been taken or any further or other evidence of any intention to take or expropriate. As per the White case [White v. City of Prince George (1993), 50 L.C.R. 260 (B.C.E.C.B.)], the Board must be satisfied that an expropriation in some form has in fact occurred.

Again like Hydro, Nanaimo says that the cases relied upon by McEachern for the de facto expropriation concept (The Queen (British Columbia) v. Tener, [1985] 1 S.C.R. 533, 32 L.C.R. 340, Casamiro Resource Corp. v. British Columbia (Attorney General) (1991), 55 B.C.L.R. (2d) 346, 45 L.C.R. 16 (B.C.C.A.), B.C. Gas Inc. v. Lansdall (1992), 48 L.C.R. 209 (B.C.E.C.B.) and A.L.M. Investments Ltd. v. Strata Plan NW 2320 (Owners) (1989), 42 L.C.R. 269 (B.C.C.A.)) are vastly removed from this case on their facts and thus distinguishable:

As the Supreme Court of Canada stated in the Tener decision, a diminution of rights does not always amount to a taking which, as a matter of law, is equivalent to expropriation. Whether in any given case the acts done by the government are so equivalent is a question of mixed fact and law. There is no evidence what so ever to indicate that in the present case the City has, in fact, taken any positive steps or taken any actions or acts to deprive the Claimant of any property interest. At no time did the City adopt an expropriation bylaw or issue an expropriation notice as there was at no time any intention or action take by the City of Nanaimo to deprive the owner of the property of an interest or right in respect of that property without the property owner's consent. This is one of the critical differences and differentiating characteristics in the authorities relied upon by the Claimant.

 

3.2 Position of the Claimant

McEachern takes the same position on the breadth of the board's jurisdiction as he did in the Hydro case. He says that the board has an obligation to determine its jurisdiction over this compensation claim, which in this case means deciding:

(a) whether, despite Nanaimo's non-compliance with expropriation formalities under the Act or the Municipal Act, the presence of Nanaimo's works is a de facto expropriation of McEachern's land, giving the board jurisdiction to determine compensation ss. 1, 25 (1) (b), and 29 (1) of the Act and ss. 578 (3.1), 611 (4.1) and 635 (3) of the Municipal Act;

(b) alternatively, whether, despite Nanaimo's non-compliance with formalities for exercising its statutory powers of compulsory interference with land, there has been de facto interference, short of expropriation, giving the board jurisdiction to determine the claim under s. 25 (1) (c) of the Act and ss. 578 (3.1), 611 (4.1) and 635 (3) of the Municipal Act.

Again like the Hydro case, McEachern says that Nanaimo must pay compensation determined by the board not only when Nanaimo follows formal procedures for expropriation or other interference in the Act or the Municipal Act, but also when Nanaimo engages in activities which have the same effect on the land owner as an expropriation or other compulsory interference, regardless of compliance with statutory procedural requirements. Because Nanaimo has statutory powers of expropriation and occupation and its works are installed on the claimant's land, the board, not the courts, is the compensation forum for this claim.

 

4.0 ANALYSIS

4.1 The Board's Determination of its Jurisdiction

Nanaimo does not contest that the board can explore the boundaries of its own jurisdiction, and that in this case we must be satisfied that an expropriation within the meaning of the Act, or some other compulsory interference compensable in proceedings before the board, has indeed occurred before we can proceed to determine the merits of the compensation claim. We adopt our reasons on this issue in the Hydro decision.

 

4.2 Other Issues

The board agrees with Nanaimo's framing of the issues in its submissions:

... the question is not ... what is the appropriate remedy. The question is simply whether or not an expropriation has taken place in this case. That determination will identify the remedy or remedies available to the Claimant, but the Board does not need to make a determination as to whether or not what the City has done constitutes a trespass ... , but simply whether or not it is an expropriation under the meaning of its legislation.

We adopt our analysis and application of the de facto concept of expropriation or other compulsory interference in the Hydro decision. Since, on that issue, this case is on all fours with the Hydro decision, we reach the same conclusion here as in the former case. We would only supplement our conclusion by saying that because this claim alleges the de facto exercise of Municipal Act powers to take or interfere with land, the judgment of Dorgan J. in Purchase v. Terrace (City) (1995), 26 M.P.L.R. (2d) 126 (B.C.S.C.) is additionally on point with this case where she states:

Under s. 1 of the [Expropriation] Act, an "expropriating authority" is defined: "'expropriating authority' means a person, including the Crown in right of the province, empowered under an enactment to expropriate land" (emphasis added). Not all expropriating authorities are enabled in the same way as the municipal Council, and because every expropriating authority is not subject to the same restrictions on empowerment, context is important.

Municipal Councils only have power to act in accordance with their empowering legislation. A municipal Council is not "empowered" under the Municipal Act to expropriate without a bylaw. In my view, a municipality is not an "expropriating authority" until it is "empowered" as such.

 

5.0 DETERMINATION AND ORDER

The presence of Nanaimo's sewer line and water line and meters on McEachern's land is not an expropriation or other form of compulsory use because, as a matter of law, there has been no taking or interference under the Municipal Act. To the extent that Nanaimo may have acted to unlawfully interfere with McEachern's land, his remedy is to commence an action to recover damages and restrain or remove Nanaimo's works, not a compensation claim to the board.

The board is not in a position, on the materials before us, to decide whether the part of Short Avenue said to encroach on McEachern's land is a public highway under s. 4 of the Highway Act. However, given our conclusions on the main issue, it is not necessary for this question to be resolved and we make no findings with respect to Nanaimo's assertion that Short Avenue is a public highway.

The compensation claim for the value of land taken or occupied, injurious affection to the remainder, disturbance damages and interest is therefore dismissed. Costs may be spoken to at the instance of the parties.

 

Government of British Columbia