August 28, 1995, E.C.B. Control No. 90/92/93 (57 L.C.R. 45)

Between: Norman Nast
Claimant
And: Regional District of Okanagan-Similkameen
Respondent
Before: Jeanne Harvey, Chair*
Robert W. Shorthouse, Chair**
Suzanne K. Wiltshire, Board Member
Appearances: Jeffrey Frame for the Claimant
Grant Anderson for the Respondent
* Jeanne Harvey did not participate in the reasons for decision.
** Robert W. Shorthouse heard this application in his capacity as Vice-Chair,
prior to his appointment as Chair.

 

1. APPLICATION

This proceeding was commenced by notice of motion brought by the respondent pursuant to section 7 of the Expropriation Compensation Board Practice and Procedure Regulation, B.C. Reg. 453/87 (the "Regulations").

The application pursued by the respondent seeks the following orders:

A. That the claimant's application for compensation be dismissed as sections 544 and 786 of the Municipal Act, R.S.B.C. 1979, c. 290 do not authorize the claim in relation to the powers exercised by the respondent.

B. That the claimant's application for compensation is barred by section 2 (2) (a) of the Expropriation Act, S.B.C. 1987, c. 23 (the "Act").

C. In the alternative, that the claimant's application for compensation is barred by section 41 of the Act.

D. In the further alternative, that:

i) that portion of the claimant's application for compensation set out in paragraph 3. e. iii. of the statement of claim is not within sections 544 and 786 of the Municipal Act and thus the board has no jurisdiction to award such compensation; and

ii) that portion of the claimant's application for compensation set out in paragraph 3. f. of the statement of claim is not within any statutory provision for compensation and thus the board has no jurisdiction to award such compensation.

The compensation sought by the claimant is set out in paragraphs 3. e. and 3. f. of the statement of claim which read:

3. e. the claimant claims compensation pursuant to s. 544 and 786 of the Municipal Act for the entry onto the property and for the confiscation of all chattels and materials, including:
  i. compensation for the use and occupation of the claimant's land during May, September and October of 1991 by the respondent and its contractors $200
  ii. compensation for the entry by the respondent and its servants, agents and employees in entering the claimant's property for purposes of taking photographs and other purposes without the claimant's consent; $200
  iii. compensation for the value of the chattels and materials confiscated; $40,000
3. f. compensation for enacting and enforcing Bylaw 1027 and prohibiting the claimant from using his property to store discarded materials. The claimant claims diminution in the value of the property to him in the sum of: $30,000.

 

2. BACKGROUND

The motion was argued solely on the pleadings and, with the exception of copies of the Supreme Court orders of December 17, 1990 and September 27, 1991 and Bylaw No. 1027 all of which were referred to in the pleadings, no evidence was adduced.

The claimant's Form A Application for Determination of Compensation states:

a) The claimant was at all relevant times the owner in fee simple of Lot 3, D.L. 3929, ODYD, Plan 31767 as shown on Plan A15610 (the "land"). The land consisted of 8.65 acres located on Fish Lake Road, near Summerland, B.C. The land was within the boundaries of the respondent and was zoned LH (Large Holding);

b) The claimant purchased the property in June of 1990 for the purpose of constructing a home and some outbuildings for purposes of keeping some animals and establishing a home occupation;

c) In anticipation of constructing the various buildings, the claimant accumulated on his property timber and other material required by him. The claimant kept the materials on the land, although they were stored in a manner some considered to be unsightly;

d) On or about May, 1991 and September and October 1991, the respondent lawfully entered the claimant's property pursuant to the authority vested in it by:

i) the respondent's bylaw 1027; and

ii) an order of the Supreme Court pronounced December 17, 1990.

On entry the respondent loaded up and confiscated all of the claimant's chattels and materials.

The respondent pleads in paragraph 4 of its Form B Reply:

a) The respondent's Board enacted "Regional District of Okanagan-Similkameen Prohibition of Untidy and Unsightly Premises Bylaw No. 1027, 1988" on March 15, 1989.

b) The claimant subsequently accumulated a large volume of waste material on the land described in the Application for Determination of Compensation ("Lot 3"), in contravention of Bylaw No. 1027.

c) Pursuant to Bylaw No. 1027 and pursuant to an Order of Mr. Justice Arkell of the Supreme Court of British Columbia made December 17, 1990, the respondent's employees and contractor entered Lot 3 in mid-1991 and removed some of the waste material.

d) The claimant interfered with the respondent's attempt to enforce Bylaw No. 1027 and to carry out the Order and on September 27, 1991 the claimant was held in contempt of Court by Mr. Justice Oliver of the Supreme Court of British Columbia.

e) On October 3, 1991 the claimant transferred title to Lot 3 to third parties.

f) In October, 1991 the respondent's employees and contractor again entered Lot 3 and removed the balance of the waste material.

g) The material removed from Lot 3 was of no value and was disposed of in a waste disposal ground, upon payment of dumping charges by the respondent.

h) The claimant has failed to comply with Orders of Mr. Justice Arkell and Mr. Justice Oliver that he pay the costs of removing the waste material and court costs to the respondent.

In addition the respondent directed the board's attention to the Supreme Court order of December 17, 1990, noting that, in accordance with such order, the respondent entered on the land pursuant to bylaw 1033 (dealing with rural land use) as well as bylaw 1027 and that both of these bylaws were enforced in the proceedings whereby the respondent lawfully entered the claimant's property. The respondent also advised that, with the exception of the value of the chattels and materials removed from the land, it did not dispute the facts set out in the claimant's Form A.

 

3. JURISDICTION

As a preliminary objection, the claimant raised several arguments concerning the board's jurisdiction to hear the respondent's application. The claimant characterized the respondent's application as being akin to an application under either rule 18 of the Rules of Court seeking summary dismissal, or rule 19 (24) to strike out a statement of claim, or rule 39 (29) to sever the issue of liability from quantum.

The relevant portions of rule 18 provide:

(2) On the hearing of an application under subrule (1), the court may exercise any of its powers under Rule 52 (8) and may

(a) grant judgment for the plaintiff on the whole or part of the claim and may impose terms on the plaintiff, including a stay of execution of any judgment, until the determination of a defendant's counterclaim or third party proceeding,

(b) allow the defendant to defend the whole or part of the claim either unconditionally or on terms relating to the giving of security, time, the mode of trial or otherwise, and may give directions under Rule 40 (44) and (52) for the hearing of evidence at trial,

(c) with the consent of all parties, dispose of the action finally in a summary way, with or without pleadings,

(d) award costs, or

(e) grant any other order it thinks just.

(6) In an action in which an appearance has been entered, the defendant may, on the ground there is no merit in the whole or part of the claim, apply to the court for judgment on an affidavit setting out the facts verifying the defendant's contention that there is no merit in the whole or part of the claim and stating that the deponent knows of no facts which would substantiate the whole or part of the claim.

(7) On the hearing of an application under subrule (6) the court may

(a) dismiss the action,

(b) make any order referred to in subrule (2),

(c) grant any other order it thinks just.

The claimant takes the position, firstly, that the board does not have jurisdiction to summarily dismiss a claim for compensation, and that only upon hearing all the evidence and the legal arguments can the board properly determine the claimant's entitlement to compensation. The claimant argues that s. 26 (1) of the Act prohibits the board from establishing procedures which are inconsistent with the Act and that the use of a summary procedure to dismiss a claim would be inconsistent with s. 4 of the Regulations, which reads:

4. (1) Where the respondent alleges that a claimant is not entitled to any compensation it shall state the allegation in its reply specifying any enactments and relevant facts on which it relies in support of the allegation.

(2) Where the respondent fails to comply with subsection (1), it shall not without leave of the board make such an allegation at the hearing of the application to determine compensation.

The claimant argues that regulation 4 specifically contemplates the hearing of those issues raised in the respondent's present application before the board at the hearing of the application to determine compensation. The claimant's position is that the existing remedy under regulation 4 would be lost if an expropriating authority were allowed to bring the same allegations forward in a preliminary hearing. The claimant also impressed upon the board that it must take care with respect to onus in the present circumstances, pointing out that in an application for summary dismissal the onus is on the respondent to convince the board that there is no reasonable cause of action.

Rule 19 (24) provides:

(24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

The claimant argues, secondly, that the board does not have jurisdiction to strike pleadings since such a procedure is not necessary to enable the board to perform its functions. The board rejects this argument, having since determined that it does have such jurisdiction in the appropriate circumstances: see Roadmaster Auto Centre Ltd. v. City of Burnaby (1994), 53 L.C.R. 161

Rule 39 (29) states:

(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

The claimant argues, thirdly, that, although the board may have jurisdiction to determine the question of liability separate and apart from that of quantum, it would be improper to proceed on the merits of liability where there has been no order for separation of the issues of liability and quantum.

Despite the claimants attempts to characterize the respondent's application as falling within one of the above Rules of Court, the respondent submits that the board has long since determined that it has jurisdiction to set its own procedures subject to any contrary statute or regulation. It argues in particular that there is no existing regulation which governs the particular type of motion presently before the board. The respondent notes that the board has previously held that the Rules of Court are a valid guide to the types of procedural orders the board can make. The respondent says further that there has been no failure by it to comply with regulation 4 as there is a clear denial of the right to compensation stated in its Form B Reply.

The respondent urges the board to proceed with the application on the basis that it would be pointless to proceed to a full compensation hearing if the claimant cannot in fact succeed on the pleadings and the information already before the board. In this regard the respondent referred to the case of Country Style Holdings Inc. v. British Columbia (1993), 51 L.C.R. 1 where the board concluded that it had jurisdiction to hear and determine an application for severance of issues and that that application might take the form either of a two stage compensation hearing or a preliminary application on the issue of liability. In that case, the board said at page 10: "As determining the question of liability is integral to the substantive jurisdiction of the board, the procedures on how such decisions should be made are within the jurisdiction of the board."

With respect to section 7 of the Regulations, the board also stated at page 9 of the Country Style decision:

Section 7 provides one means by which a party may seek a preliminary determination of some matter, or on some issue, other than a determination of compensation. In pursuing a determination by this means the party clearly has not commenced the compensation hearing, but the result may be that a substantive issue has been severed from what otherwise could nevertheless form part of the compensation hearing.>

In the board's view it is unnecessary to determine whether the respondent's application is one akin to a particular Rule of Court. It is clear that what the respondent seeks in this instance is a severance of the claim. The respondent seeks to have the board determine whether or not there is a legal basis for the claim as advanced by the claimant under the Act. The board, having reviewed the criteria governing severance set out at page 10 of the Country Style decision, is satisfied that this is a proper instance for the board to determine as a preliminary matter whether or not the Claimant's Form A discloses a reasonable claim in the sense of asserting liability over which the board has jurisdiction.

 

4. DISCUSSION: THE LIABILITY ISSUE

The respondent's arguments arise from the claimant's position that the respondent's entry on the land constitutes an expropriation over which the board has jurisdiction.

The claimant relies on what it submits is the interrelation between section 25 (1) (c) of the Act and section 544 (1) of the Municipal Act which read, respectively:

25. (1) The board shall determine

(c) compensation to be paid, or any other matter to be determined, where jurisdiction is given to it under any enactment,

544. (1) The council shall make to 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.

The claimant does not dispute the respondent's right to enter on the land, but rather says that, since the respondent's entry on the land was lawful, the respondent was in legal occupation of the land and by definition under the Act became an owner in relation to the land. The claimant asserts that the respondent by its entry thus acquired an interest in the land and this interest, although limited in nature and time, constitutes an expropriation as contemplated under section 6 (4) (e) of the Act. In support of its position the claimant referred the board to the definition of the term "expropriate" in section 1 of the Act which reads:

"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 Crown of an interest, right, privilege or title referred to in section 47 of the Land Act;

During the course of the hearing claimant's counsel, while maintaining that what had occurred was an expropriation, conceded that any claim for injurious affection under section 40 of the Act was now statute barred. That being the case, the board sees the essence of the application before it to be that to sustain a claim the board must find there was or might have been an actual expropriation. The claimant indicated agreement with this view.

In support of its position the respondent advanced several arguments, some of which involve provisions of the Municipal Act. To assist the narrative, those sections are set forth in Appendix A to these reasons.

Firstly, the respondent maintains that sections 544 and 786 of the Municipal Act do not authorize the claim in relation to the powers exercised by the respondent. The respondent argues that:

(i) except as provided by section 786 of the Municipal Act, section 544 of that act is not applicable to the respondent since it is a regional district and not a municipality;

(ii) the respondent has not expropriated any interest in the land pursuant to subsection 786 (1) (e) of the Municipal Act, nor has it exercised a power under subsections 786 (1) (f) or (g) of that act, and, therefore, section 544 of that act does not apply in this instance;

(iii) the respondent's power to control unsightly premises and unwholesome or noxious materials is conferred by section 789 (1) (b) of the Municipal Act and its entry on the land was made pursuant to sections 789 (2) (b) and 932 (h.1) (ii) of that act, whereby it is authorized "at reasonable times and in a reasonable manner, to enter on the property and effect the removal at the expense of the person who has failed to comply".

Since its right to enter the land was conferred by sections 789 and 932 of the Municipal Act and not by any of subsections 786 (1) (e), (f) or (g) the respondent says that section 544 has no application to its entry under bylaws 1027 and 1033. The respondent says further that there is no other statutory provision, as contemplated by s. 25 (1) (c) of the Act, which empowers the board to award compensation in respect of the respondent's entry under such bylaws. Therefore, the respondent asserts, the claims in section 3. e. of the statement of claim made pursuant to sections 544 and 786 of the Municipal Act are not within the jurisdiction of the board.

To this argument the claimant replies that entry under section 932 is not stated to be without compensation and that while section 972 of the Municipal Act exempts certain municipal actions from compensation there is no such exemption for this entry. The claimant did not address how, in circumstances where section 544 of the Municipal Act does not apply, the board might then derive jurisdiction.

Secondly, the respondent submits that its entry onto the land pursuant to sections 789 and 932 of the Municipal Act to enforce bylaws 1027 and 1033 is an entry as contemplated by section 2 (2) (a) of the Act and the claimant's Application for Determination of Compensation is therefore barred. Section 2 (2) (a) reads:

2. (2) This Act does not apply in respect of

(a) an entry on land for the purpose of exercising a power of inspection, investigation or enforcement in the course of administering an enactment,

The respondent argues that, since its entry was for the purpose of exercising a power of enforcement under the Municipal Act, any alleged damages arising are not compensable by virtue of section 2 (2) (a) of the Act.

The respondent further says that entry for the purpose of enforcement necessarily includes actions taken on the land to execute the enforcement proceedings. In the present instance, argues the respondent, there was no use or occupation or assertion of possessory rights by it; its activities were limited to removal of chattels. Accordingly, the respondent says, there was no taking of land and therefore no expropriation.

The board notes that section 2 (2) (a) of the Act was subsequently considered in the Roadmaster decision. In that case the board held an award of compensation for alleged losses arising from the removal and storage of the chattels of the claimant in the course of enforcement of an enactment and pursuant to the execution of a writ of possession to be outside its jurisdiction.

Finally, the respondent says, in the alternative, that the board has no jurisdiction to award the compensation sought by the claimant in paragraphs 3. e. iii. and 3. f. of the statement of claim since:

(i) even if s. 544 of the Municipal Act were applicable, that section does not extend to compensation for chattels as sought by the claimant in paragraph 3. e. iii. of the statement of claim; and

(ii) no authority exists for the claim set forth in paragraph 3. f. of the statement of claim since bylaw 1027 is a statutory enactment regulating specific activity on land throughout the regional district and as such is not an expropriation. In support of this argument the respondent cites the cases of British Columbia v. Tener [1985] 3 WWR 673 (S.C.C.), Genevieve Holdings Ltd. v. Kamloops (1988) 42 M.P.L.R. 171 (S.C.B.C.) and Steer Holdings Ltd. v. Manitoba [1992] 2 WWR 558 (Man. Q.B.).

To this the claimant replies that pursuant to section 33 of the Act a claimant is entitled to compensation for financial losses, including those relating to chattels.

 

5. CONCLUSION

The board agrees with the respondent that, since the respondent is a regional district, section 544 of the Municipal Act is not applicable to the respondent except as provided by section 786 of that statute.

The board finds that section 786 (5) of that statute does not apply to the respondent's entry since such entry was neither in connection with the operation of a service as specified in subsection (1) (f) of that section nor in connection with the exercise of a power as specified in subsection (1) (g) of that section. Nor does the claimant make any assertion that the entry was made pursuant to the exercise by the respondent of its powers under subsections 786 (1) (f) or (g).

For section 544 of the Municipal Act to apply the board must therefore find there was or might have been an actual expropriation pursuant to subsection 786 (1) (e) and (4) of that statute. The board finds that the entry of the respondent on the land is not an expropriation as contemplated by the Act. There has been no "taking" in the Tener sense. The board finds the following statement from Genevieve Holdings Ltd. at p. 176 to be applicable to the facts in the present case:

"It is perhaps overstating the obvious, that in the facts before me there has not been any denial of interest or property right, to the petitioner here, in the Tener sense; there has been no denial of access; the land continues to be capable of use, albeit of a limited nature, and no apparent benefit has been extended to the respondent, insofar as the petitioner's lands are concerned, as a result of the resolution."

Accordingly, section 786 (1) (e) and consequently section 544 of the Municipal Act do not apply to the entry by the respondent. No other enactment was put forward by the claimant by which the board could derive jurisdiction pursuant to the Act to determine compensation in the present instance.

Additionally, the board finds that the entry by the respondent on the lands pursuant to sections 789 and 932 of the Municipal Act to enforce bylaws 1027 and 1033 was, as in Roadmaster, an entry as contemplated under section 2 (2) (a) of the Act. Accordingly, the Act does not apply in respect of the respondent's entry on the land and the board is without jurisdiction to determine this claim.

The claimant has conceded that any claim by it for injurious affection pursuant to section 40 of the Act is now barred pursuant to section 41 of the Act by the passage of time.

There is, therefore, no basis on which any of the claims set forth in the claimant's Application for Determination of Compensation can be sustained under the Act and the board dismisses the Application for Determination of Compensation. Having dismissed the claimant's Application on these grounds, the board does not find it necessary to consider the further arguments of the respondent and makes no finding in respect of them.

 

APPENDIX A

786. (1) Subject to this Act, a regional district has, for the purpose of exercising its powers and performing its duties, the right

(e) to expropriate real property or any interest in real property in the manner provided for in the Expropriation Act,

(f) when operating a service under section 788 (1) (a), (b) or (c.1) or under a regulation under section 790, to authorize its agents or servants to enter on, break up, take or enter into possession of and use real and personal property without the consent of the owners of the property,

(g) to exercise the same powers, subject to the same conditions, that are conferred on a council by section 557,

786. (4) Where a regional district exercises a power under subsection (1) (e), (f) or (g), sections 544 and 569 apply.

786. (5) Where a regional district exercises a power under subsection (1) (f) or (g) 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.

789.(1) A regional district may, by bylaw, establish and operate one or more of the following extended services:

(b) control of pollution, nuisances, pests, noxious weeds, noise, unsightly premises, unwholesome or noxious materials, odours and disturbances;

789.(2) The following provisions of this Act apply to the regulation and enforcement by a regional district of services established under subsection (1):

(b) in relation to the control of pollution, nuisances, pests, noxious weeds, noise, unsightly premises, unwholesome or noxious materials, odours and disturbances, section 932 (b) to (e) and (g) to (l);

932. The council may by bylaw

(h.1) for the purpose of remedying unsightliness on real property,

(i) require the owners or occupiers of real property, or their agents, to remove from it unsightly accumulations of filth, discarded materials, rubbish or graffiti,

(ii) provide that, where a person fails to comply with a requirement for removal referred to in subparagraph (1), the municipality, by its employees or other persons, at reasonable times and in a reasonable manner, may enter on the property and effect the removal at the expense of the person who has failed to comply, and

(iii) provide that, where the person at whose expense removal is carried out under subparagraph (ii) does not pay the cost of the removal on or before December 31 in the year that the removal was done, the costs shall be added to and form part of the taxes payable on the property as taxes in arrears;

 

 

Government of British Columbia