March 7, 1997, E.C.B. No. 94/95/136
(61 L.C.R. 38)
Columbia Packers Limited|
Majesty The Queen in Right of the Province of|
British Columbia as represented
by the Minister of
Transportation and Highways
M. St. Clair, Vice Chair|
P. Taylor, Q.C., for the Claimant|
Ian M. Brindle
Robert J. Musto, for the
two applications in this matter on February 19, 1997, in my capacity as vice chair
of the Expropriation Compensation Board ("the board") and in exercising, pursuant
to s. 25 (5) of the Expropriation Act, S.B.C. 1987, c. 23 ("the Act"),
the powers and jurisdiction of the board. The first application was brought by
the respondent, Her Majesty The Queen in Right of the Province of British Columbia,
as represented by the Minister of Transportation and Highways ("MoTH"), for the
1. "that the Claimant,
within 10 days, deliver to the Solicitor for the Respondent, further and better
particulars of the amount claimed under each element of compensation, the basis
on which each claim is calculated and the facts in support of each element of
2. that the claimant deliver a
List of Documents within 10 days; and
3. that a sentence
in the Amended Application for Determination of Compensation be struck.
The second application was brought by the claimant, British Columbia Packers Limited
("BC Packers"), for an order that MoTH deliver a List of Documents within 10 days.
At the hearing, MoTH abandoned its application to strike part of the Amended Application.
In addition, both parties consented to orders that each deliver a List of Documents
to the other within 21 days of the date of the hearing. These reasons, therefore,
will deal only with MoTH's application for particulars.
At the time of the expropriation in 1995, BC Packers was in the business of acquiring,
processing and marketing fish and seafood. It operated the Queensborough Shipyard
on 0.7 hectares of land fronting the Fraser River. Its shipyard also included
a 2.41 hectare waterlot leased from the Fraser River Harbour Commission and a
moorage lease fronting Patrick Island. MoTH expropriated part of BC Packers' land
and a portion of its waterlot lease for the purpose of constructing a crossing
of the Fraser River. As a result of the expropriation, BC Packers says that it
lost a number of moorage spaces, as well as its fabrication/electrical shop, and
a large portion of its storage yard.
BC Packers' Amended
Application for Determination of Compensation is six single-spaced pages long.
The headings of damages referred to in it are market value of land, business losses,
"business losses: alternatives", disturbance damages, "injuries [sic] affection
on partial taking" and legal, appraisal and professional fees. The Amended Application
makes reference to a 46 page written submission that BC Packers made to MoTH in
September of 1995. This submission includes a further 29 pages of what are referred
to as "alternative cost estimates." It also incorporates two appraisal reports,
and refers to two engineering reports. At the hearing of this application, counsel
for BC Packers also referred to these alternative estimates as "mitigation options."
MoTH says that, despite its length, the Amended Application lacks particularity
and fails to make any particular claim. For example, at paragraph 3.I, the Amended
Application reads that BC Packers "reserves the right to tender evidence showing
that the Appraisal underestimates the total market value of the expropriated land,
including the Severed Area, improvements and temporary construction easements,
particularly given the special economic advantage to BCP arising out of its use
of the land." It does not specifically claim more compensation for the market
value of the land, and does not indicate what the special economic advantage referred
to might be.
In the portion of the Amended Application
dealing with disturbance damages, MoTH points to the following language which
it says is lacking in particularization:
3.Q. BCP claims compensation for ... including the cost of relocating on other
land where applicable.
3.R. BCP's claim for compensation
... includes, but is not limited to, damages described in Paragraphs T to DD below.
3.S. BCP has estimated that the capital costs of the reconstruction of lost facilities
... range from $530,000.00 to $2,465,000.00 ...
has estimated that the total incremental on-going costs as a result of the Expropriation
range between nil and $500,000.00, depending on the alternative adopted. (MoTH's
MoTH has identified quite a number
of other examples of this type of pleading. MoTH's counsel, Robert Musto, contends
that the Amended Application essentially seeks $10 million in compensation under
the Act, and refers to nine possible ways in which BC Packers' losses might be
mitigated. The precise nature of the claims, however, the elements of compensation
under the and the facts upon which the claims will be based, he says, are not
Mr. Musto has been corresponding with BC Packers'
counsel, James Taylor, Q.C. and Ian Brindle, since September 12, 1996, about his
concerns regarding the lack of particularity. On February 3, 1997, after a number
of letters back and forth, Mr. Taylor wrote to Mr. Musto enclosing draft particulars.
He indicated in his letter that they were "continuing to work on this" and that
the final particulars would be longer, and would alter the way in which the business
loss was expressed.
Mr. Musto says that the draft particulars
seem to indicate that the basic claim is no longer a minimum $10 million arising
from a loss of dislocated fishers, as originally indicated in the Amended Application.
He now believes, based on the draft particulars, that BC Packers' basic claim
is "alternative #2" from the submission, along with a business loss claim as set
out in paragraph 3.L., which appears to him to be "alternative #9" from the submission.
He points out that one of the claims made for business loss in the draft particulars
says simply "etc.", and also that the draft particulars do not make any reference
to an "agreement" alluded to in Mr. Taylor's letter to him of January 23, 1997.
This reference reads as follows:
I also confirm
that we discussed the fact that in our opinion in order to present our case we
are going to have to deal with the history between B.C. Packers and MoTH going
back to the earliest stages of this matter (I believe it commenced in 1991) because
some of the particular items of cost incurred by B.C. Packers (as an example,
option and lease payments) were incurred as a result of dealings, and we would
say an "agreement", between MoTH and B.C. Packers which predates the present Expropriation.
At the hearing of this application, Mr. Taylor acknowledged that the claim is
now for about $4.4 million, and that he intends, prior to the compensation hearing,
to file a Further Amended Application which, among other things, will abandon
the previous claim for between $10 million and $12 million.
Mr. Taylor also outlined the applicable heads of damage claimed by BC Packers
under the Act. The first he described as losses related to the taking, encompassing
loss in value to the remaining land and special market value. These, he said,
would be proven through the appraisal report, which is not yet completed but which
will be adduced in evidence. The second head he referred to was disturbance damages,
including relocation costs. These, he stated, are set out in the draft particulars.
Finally, he said that BC Packers would be making a business loss claim, which
will be proven through their business valuation report that will highlight their
strongest position. Mr. Taylor indicated that he is not in a position to provide
a figure for the property loss, as he will not be able to obtain the appraiser's
report until much closer to the time limited for its production prior to the compensation
hearing. He stated that the business valuer's report was "essentially" provided
to MoTH in November, 1995, through the submission already referred to. The formal
report that will be used at the compensation hearing, however, I gather has not
yet been finalized.
I was somewhat confused by Mr. Taylor's
explanation of the use of the various mitigation options in the Amended Application.
He explained that, without pursuing some form of mitigation, BC Packers' losses
flowing directly from the expropriation would be in the order of $10 million.
However, in pursuance of its perceived duty to mitigate, BC Packers drew up the
previously referred to submission setting out the details, including costs, of
various mitigation options. Some of the options, he stated, would involve the
purchase of two nearby properties. This, in his view, might not "come within the
four corners of the Act", and he stated that he "did not think" BC Packers would
be presenting the case on that basis. He pointed to the draft particulars relating
to paragraph 3.L of the Amended Application as setting out what they consider
to be the most reasonable mitigation option. This option apparently involves the
acquisition of more land, but does away with the extra costs connected with offsite
moorage. Mr. Taylor stated that he "did not think" that BC Packers would put forward
the other mitigation options at the compensation hearing, and that the details
of the claim for special market value would be set out in the Further Amended
Application to be filed at some point in the future.
law regarding demands for particulars, especially as it relates to proceedings
before the board, has been canvassed thoroughly by the chair Robert Shorthouse
in an interlocutory decision in Greatbanks v. British Columbia (Minister
of Transportation and Highways) (1996), 59 L.C.R. 185, at pages 190 and 191.
Mr. Shorthouse, drawing upon the decision of Master Bishop of the Supreme Court
of British Columbia in Yewdale v. Insurance Corp. of British Columbia
(unreported, August 16, 1994, No. C936567, Vancouver) summarized the applicable
principles as follows:
(1) any steps legitimately
taken to clarify the issues and reduce the length of the trial must be encouraged;
(2) parties to an action must frame their pleadings with certainty ... and must
set out the facts but not the evidence on which they intend to rely to prove their
claim or defence;
(3) the purpose of particulars is to
require a party to clarify the issues raised by the pleadings so that the opposite
party may be able to properly respond to the pleadings and to properly prepare
for an examination for discovery and for trial;
examination for discovery is not a substitute for an order for particulars and
an application for particulars should not be defeated by an argument that the
applicant can get the same particulars by way of conducting an examination
(5) if the particulars applied for are
generally only known to the party making the application, that party may be required
to give discovery [prior] to particulars being ordered;
(6) the order for delivery of particulars is one of discretion to be exercised
in a judicial manner and in exercising that discretion, the court must be mindful
of the state of the proceedings when determining whether or not sufficient particulars
have been given and whether particulars should be delivered forthwith, particulars
should be given following an examination for discovery, or some particulars should
be given forthwith and others given later following discoveries.
I agree with the chair's analysis of the case law in this area, and adopt his
summary as applicable to this case.
Unlike the Greatbanks
case, counsel applying for particulars is not seeking responses to a specific
list of questions. Rather, Mr. Musto seeks a more generally worded order for "further
and better particulars of the amount claimed under each element of compensation,
the basis on which each claim is calculated and the facts in support of each element
of compensation claimed." He points out that this is the very language used in
the prescribed Form A Application for Determination of Compensation under the
board's Practice and Procedure Regulation. Mr. Musto did deliver a lengthy list
of questions to Mr. Brindle on January 27, 1997, but he does not seek answers
to those questions at this point in light of what appears to be the claimant's
altered position as set out in its draft particulars.
It is certainly not satisfactory that the "draft" particulars delivered to Mr.
Musto in February have not yet been finalized. Mr. Musto cannot reasonably be
expected to proceed to prepare for examinations for discovery and for the compensation
hearing on the basis of draft pleadings that may yet be altered further. In addition,
I find the Amended Application and the draft particulars to be quite perplexing
and unclear in terms of defining the relief that BC Packers will be seeking at
the compensation hearing. In many ways the draft particulars, as Mr. Taylor pointed
out and as Mr. Musto acknowledged, go into far more detail than would be required
by an order for particulars. In some cases what has been provided can be characterized
as constituting the evidence by which the claim may be proven, as opposed to the
facts upon which the claim is based. It is laudable that counsel has voluntarily
provided more information than required, in an apparent effort to minimize any
element of surprise at the final hearing. However, it is unfortunately still the
case, in my view, that despite the detail provided on some topics, the pleadings
are not sufficiently particularized in terms of defining the basic elements of
compensation claimed, the basis of calculation and the essential facts upon which
the elements of compensation are claimed. I, myself, do not understand exactly
what claims will be put forward after reading the Amended Application and the
draft particulars, and if I were counsel for the respondent, I would be at a loss
as to how to prepare for either examinations for discovery or the compensation
hearing without further particularization.
On this basis,
then, I grant the order for particulars on the terms sought. In addition, I would
like to note that, given the apparent complexity of this case and the present
state of the pleadings, it would almost certainly assist the board greatly if
Mr. Taylor were to do as he has indicated he intends to, and file a Further Amended
Application prior to the compensation hearing, encompassing the particulars. Finally,
I order, by the consent of the parties, that each party will deliver a List of
Documents to the other within 21 days of February 19, 1997.