In the recent decision of Rosewall v. Sechelt (District of), 2022 BCSC 20, Justice Gomery of the BC Supreme Court has found the Province liable in nuisance arising from circumstances related to the exercise of statutory authority contained in the Emergency Program Act (“EPA“). In his decision, Justice Gomery concluded that the EPA contemplates an emergency as only being “of a temporary nature, as opposed to a usual and enduring state of affairs”. The decision has potential implications for any local governments with states of local emergency that are regularly being extended.
Under the EPA, a local authority may declare a State of Local Emergency (“SOLE”), which expires after 7 days unless extended by the Minister of Public Safety (the “Minister”) or Provincial Cabinet. An extension allows for the SOLE to remain in effect for another 7 days, after which time it must then be renewed.
On the facts of this case, the Court found that, in the absence of additional information beyond the engineering reports which supported the initial declaration of the SOLE, “renewal of the SOLE ceased to be reasonable after three months”. While every emergency and the necessary response to it should be determined on a case-by-case basis, in light of this decision it is anticipated that the Province (and the Minister, as the statutory decision-maker) will be taking a closer look at its approach to renewing SOLEs in order to, in the words of the Court, “consider whether the event or circumstance that inspired the SOLE in the first place continues to qualify as an emergency”.
What the decision did not address, and which is left as an unresolved issue, is how the EPA and the Court’s interpretation of the EPA addresses emergencies which are of a long duration and are not practically repairable – possible examples might include: properties buried by large landslides, properties impacted by the deposit of toxic materials and, perhaps ultimately, rising ocean levels that make neighbourhoods uninhabitable. For some of these scenarios it is possible that the circumstances which gave rise to the emergency will not improve, and so the identified hazards will not be temporary.
The plaintiffs in this case each purchased properties around 2008 in a new development in Sechelt, BC known as “Seawatch at the Shores” (“Seawatch”).
Prior to construction or development approval, geotechnical engineers deemed the area of the development safe for the construction of single-family dwellings, notwithstanding prior land instability. In approving the development, the District of Sechelt (the “District”) required that a covenant be registered against title to each of the lots in Seawatch pursuant to s. 219 of the Land Title Act. This covenant put the property owners on notice of the potential for land instability issues by appending the geotechnical reports to the covenant. The covenant also included indemnity and release clauses, requiring the developer and subsequent purchasers to hold the District harmless against losses arising from subsidence connected to the construction of the development or use of the land.
In 2012, sinkholes began daylighting in the Seawatch development. Two additional sinkholes appeared in 2015 and another on December 25, 2018.
2.0 State of Local Emergency
Following the December 2018 sinkhole, the District retained an engineering firm to investigate the stability of the Seawatch lands. In a February 6, 2019 report, geotechnical engineers recommended that the District no longer permit occupancy of the properties and buildings within Seawatch due to land subsidence and geological instability which posed a risk of loss of life and damage to property.
The District quickly issued an evacuation order for the residents of Seawatch, including the plaintiffs, effective February 15, 2019 and a temporary fence was constructed around the subdivision. The District declared a SOLE pursuant to ss. 12 and 13 of the EPA.
The Province later provided funding to the District towards the construction of a higher, fixed fence in order to better support the evacuation order. The District’s SOLE has been continually renewed by the Minister every 7 days since it was made on February 15, 2019. The fence remains in place and access to Seawatch continues to be prohibited.
3.0 The Civil Action
In July 2019, the plaintiffs began their lawsuit against the District and the Province alleging, among other things, that the continued extensions of the SOLE were unlawful and that the defendants did not have authority to continue to prevent the plaintiffs from accessing their homes.
The plaintiffs discontinued their claims against the District shortly before trial. They took this step following a decision of the BC Court of Appeal that dismissed actions brought by other Seawatch residents against the District based on the release contained in the s. 219 covenant registered against title – and which was found to give rise to a release of all claims advanced in the litigation.
Therefore, at trial, the primary issue for the Court to determine was whether the Minister’s practice of approving the extensions of the SOLE at 7-day intervals since February 15, 2019 was lawful.
4.0 The Court’s Decision
In assessing the validity of the Province’s conduct, the Court concluded that the Province’s purported exercise of authority to approve the renewals of the SOLE was to be reviewed by the court on the standard of “reasonableness” as opposed to strict “correctness”, pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
In its analysis, the Court confirmed that while “protecting and securing people and property against urgent threats that require collective action is a fundamental responsibility of government” (para. 25), any ambiguity in statutes which interfere with property rights will be construed in favour of preserving the rights of the individual (para. 23).
Justice Gomery held that it was reasonable for the Minister to initially approve extensions of the SOLE as the circumstances in February 2019 could reasonably be characterized as an emergency as defined in the EPA. However, according to Justice Gomery, the EPA contemplates an emergency as a temporary condition resulting from the forces of nature. The Justice commented that “not every risk to public safety constitutes an emergency justifying the continuation of a SOLE under the EPA… the emergency powers under the EPA are exceptional and not to be exercised in the ordinary course” (para 83).
While the plaintiffs were lawfully evacuated on February 15, 2019, Justice Gomery found in this case that the renewal of the SOLE ceased to be reasonable after three months. As further investigations into the geotechnical issues had not been conducted since February 2019, Justice Gomery concluded that in the absence of any developments, after three months the circumstances could no longer be characterized as an emergency under the EPA. The Court reasoned, “by that time, it was no longer reasonable to approve renewal of the SOLE in the absence of evidence of a reasonable plan to investigate and address the risks to public safety and property in Seawatch” (para 85).
It is noteworthy that the issue of whether the Province (or District, for that matter) owed a legal duty to abate the subsurface conditions in the subdivision which gave rise to the emergency was not before the Court.
As the SOLE renewals were considered unauthorized after three months, the Province was exposed to a claim in nuisance for its actions after that date. The common law tort of nuisance is intended to compensate property owners when a defendant has substantially and unreasonably interfered with the use and enjoyment of their property. Justice Gomery observed that under the tort of nuisance, the focus is on the harm suffered by the plaintiff rather than any purported benefits of the defendant’s conduct. In this case, Justice Gomery held that the Province’s actions in unlawfully maintaining the SOLE after the initial three-month period and in encouraging and funding the fixed fencing which prohibited access to Seawatch unreasonably interfered with the plaintiffs’ use and enjoyment of their properties. Normally nuisance arises from the use of the defendant’s lands which interferes with the plaintiff’s use and enjoyment of their lands. As the Provinces actions (regulatory decisions and funding the fencing) were unconnected to the use of Crown land, this potentially represents a new extension to the tort of nuisance.
Unfortunately, and although advanced by the Province at trial, the reasons do not include an analysis of s. 18 of the EPA, which provides immunity from liability to the Minister and local authorities “for any loss, cost, expense, damage or injury to person or property” resulting from acts or omissions done in good faith under the EPA. In theory, this statutory provision could have provided a defence to the plaintiffs’ claims.
Ultimately, the plaintiffs were awarded special damages consisting of the costs of rental accommodation, moving costs, furniture replacement costs and storage costs. The plaintiffs were also awarded $40,000 each in general damages. While the Court acknowledged that the plaintiffs would have suffered some dismay and disruption in any event as a consequence of the lawful evacuation, the Province’s actions “made things much worse for them than they would otherwise have been” (para 119).
The introduction of a possible time-limit on “emergencies” under the EPA has important implications for both the Province and local governments across BC. While the reasonable length of any particular emergency ought to be determined in the circumstances, the takeaway point from this decision is that public authorities should not use “the continuing renewal of the SOLE [as] an excuse for inaction” (para 84). As observed above, the Court does not address what “action” might be required so as to address emergency conditions and, furthermore, did not address any general or specific statutory duty or common law duty to abate hazardous conditions on lands. Nonetheless, in the circumstance of local governments seeking ongoing renewals of SOLEs under the EPA, consideration should be given, at a minimum, to supporting the documentation provided to the Minister (as decision-maker) with updated information as to the nature and continued currency of the hazardous conditions which gave rise to the emergency.