November 25, 2002 E.C.B. Control No. 22/02/228

REASONS FOR DECISION

1.  INTRODUCTION

[1]  The applicant, the Corporation of Delta, has brought a Notice of Motion pursuant to section 11 of the Expropriation Act, R.S.B.C. 1996, c. 125 ("the Act"), for an Order that Jamaica Developments Ltd.'s Notice of Request for Inquiry filed on August 16, 2002 is frivolous, vexatious, or not made in good faith and that accordingly the Request for Inquiry should be denied.

[2]  Jamaica Developments Ltd. owns a parcel of vacant land located at 10897 River Road in Delta, British Columbia. Several affidavits were filed which set out the background evidence.

[3]  An affidavit of Randy Roper, Project Technologist with the Corporation of Delta, states that in January 2002 Delta was informed by a third party that a stretch of the north retaining wall that supported River Road in McAdam Ravine had failed. Delta's consulting engineer, Golder Associates Ltd. (geotechnical engineers), visited the site, supervised emergency repairs and prepared a technical report on the bank failure. Golder's report dated January 14, 2002 was attached to the affidavit. It set out the recommendations for emergency repair and short term repair that had already been provided as well as some considerations for long term solutions. The recommendations for repair include that the drainage system be cleaned and inspected, that coarse quarry rock be added as backfill in eroded areas, and that the road embankment be monitored frequently for stability. If additional instability is observed (examples of what would demonstrate instability are provided), consideration should be given to closing the westbound lane of River Road. The long term solutions for the wall and drainage system include a backup drainage system as well as stabilization works for the lower slopes.

[4]  Delta filed an Expropriation Notice in the New Westminster Land Title Office on July 18, 2002 in which it set out its intention to expropriate a strip of Jamaica Developments Ltd.'s land running along its boundary with River Road. This expropriation was approved by Certificate of Approval signed July 30, 2002 and completed with the vesting of rights by Vesting Notice filed in the New Westminster Land Title Office on August 8, 2002. The Expropriation Notice says that the work was for "highway improvement". Jamaica Developments Ltd. filed a Notice of Request for Inquiry on August 16, 2002 on the basis that the improper construction of a culvert by Delta caused the flooding and that stabilization of the slope could be achieved without an expropriation and without the introduction of a fish ladder.

[5]  An affidavit was filed from James Barr, principal of Jamaica Developments Ltd., which states that at some earlier time the sidewalk and the north retaining wall supporting River Road were installed by Delta on Jamaica Developments Ltd.'s property at 10897 River Road without compensation. A photograph of a drainage culvert was attached and Mr. Barr stated that it showed faulty installation. The alleged improper installation of the drainage culvert had apparently contributed to the drainage problems and the failure of the retaining wall. Mr. Barr stated that he was advised that Delta wanted to enter Jamaica Developments Ltd.'s land to carry out slope stabilization rather than highway improvement. Mr. Barr attached a letter from Delta that stated the work on Jamaica Developments Ltd.'s property was "to carry out reconstruction of the slopes of McAdam Creek." A plan of the works that Delta intended to do showed a fish ladder. Mr. Barr stated that he refused to consent to Delta's work because it included a fish ladder. A third affidavit from Gerald Denenfeld, realtor for Jamaica Developments Ltd., stated that no spawning fish had been seen in this area. Mr. Denenfeld also detailed areas of Jamaica Developments Ltd.'s property at 10897 River Road that had failed, which he stated was as a result of drainage problems caused by Delta's faulty drainage system.

Delta's Position

[6]  The Expropriation Notice stated that it was for "highway improvement" and section 10 of the Act sets out that a Notice of Request for Inquiry cannot be made where the expropriation notice is in respect of a linear development. Delta says that there was no reason to look further than the wording in the Expropriation Notice. In any event the affidavit evidence established that the expropriation was for River Road and the retaining wall that supported River Road and is thus for a linear development.

Jamaica Developments Ltd. Position

[7]  Jamaica Developments Ltd. says that the expropriation of its land is not for a linear development but in fact to repair a design flaw made by Delta that has damaged Jamaica Developments Ltd.'s land at 10897 River Road. It refers to the affidavit evidence that was filed to support this position.

Analysis and conclusion

[8]  Section 10 of the Act provides that an owner may request an inquiry if it is not in respect of an Expropriation Notice for an expropriation for the construction, extension or alteration of a linear development. Linear development is defined in the section to include a highway. River Road is a highway. The Expropriation Notice in this case states that the land that is intended to be expropriated is required for "highway improvement". Under the principle set out in Pacific Forest Products Ltd. v. British Columbia (Minister of Transportation and Highways) (1994), 53 L.C.R. 198 (B.C.E.C.B.) there is no reason for the board to go behind the stated purpose in the Expropriation Notice unless there is an allegation that the expropriating authority is mistaken or, when the expropriating authority is not one vested with ministerial powers, that it has inappropriately described the purpose.

[9]  If as Jamaica Developments Ltd. asserts, Delta has mischaracterized the purpose, following Pacific Forest Products, I have jurisdiction to consider the affidavit evidence on whether the expropriation is for a project that is linear or non-linear. I note that in OPB Realty (Lougheed) Inc. v. British Columbia Transit, unreported oral decision, February 2, 2000, ECB 03/00, the parties agreed that notwithstanding the decision in Pacific Forest Products, the board should go behind the stated purpose in the Expropriation Notice. The board in that case considered the affidavit evidence and concluded that an expropriation for a station for the rapid transit project was included in the definition of linear development.

[10]  Having reviewed the affidavit evidence in this case I agree with Delta that the evidence establishes that the expropriation was for work that was for a linear development. The plan attached to the Expropriation Notice shows the expropriated land was a linear strip of Jamaica Development Ltd.'s land adjacent to its boundary with River Road. Mr. Roper's affidavit and Golder's report make clear that the retaining wall supported River Road and that the repair of the drainage system, the repair of the retaining wall and the stabilization of the slope were all necessary in order to maintain the integrity of River Road. Whether or not the need for the work was as a result of faulty installation of a drainage system is irrelevant to the issue of the work being for a highway or linear development. Further, when one reviews section 14 and the scope of an inquiry if one is held, section 14(2) of the Act specifically says that the necessity for the project or work for which the expropriation is sought must not be considered at the inquiry.

[11]  Accordingly, Jamaica Developments Ltd.'s request for an inquiry must be denied. The appropriate forum for Jamaica Developments Ltd.'s concerns about the damage to its lands, depending on how the damage was caused, may be a compensation hearing rather than an inquiry. An application to the board to determine compensation can be made pursuant to the Act so long as it is made within the limitation period set out in section 25.

[12]  In conclusion I grant Delta's application that the Request for Inquiry be denied on the basis that the land was expropriated for the construction, extension or alteration of a linear development.