August 7, 2001 E.C.B. Control No. 28/00/208

REASONS FOR DECISION

Introduction

[1] This Notice of Motion, heard on August 1, 2001, was brought by the claimant seeking discovery of documents and answers to interrogatories.

[2] The claim is for a partial taking for the widening of Columbia Avenue in Cranbrook, British Columbia. The property is a corner lot that is presently used as a residential rental property. Both appraisers agree that the property has some potential for commercial, although they differ on the imminence of this potential. The claimant has pled that the respondent has indicated that it will not restore access to Columbia Avenue and that the remainder of the property suffers injurious affection as a result. The respondent has pled that it has restored access to Columbia Avenue by constructing a drop curb to line up with the existing driveway on the property.

Discovery of Documents

[3] Following examination for discovery of the respondent's representative in May 2001, claimant's counsel by letter dated May 18, 2001 detailed 12 documents or series of documents the claimant was seeking, arising out of the examination for discovery. It is these 12 items that are sought in the Notice of Motion. The respondent indicates that it is in the process of locating nine of these documents or series of documents. With respect to the first three series of documents specified in the Notice of Motion at 1(a), (b), and (c), documents that involve access permits and settlements made with two other nearby owners of corner properties, the respondent indicates that because of the issue of confidentiality it seeks consents from the respective property owners or an order of the board before releasing them. No consents from the owners have been obtained.

[4] The claimant submits that the three series of documents which involved other owners of corner properties are relevant to this case. Access to the subject property is in issue and access permits and access arrangements for properties with a similar corner location could help to advance the claimant's case. The respondent took no issue with respect to the board ordering that these documents be produced. I accept that these documents relate to a matter in question in the proceeding and I order that any documents that fit within the description of the first three items in paragraph 1(a), (b), and (c) of the Notice of Motion be produced.

[5] With respect to the remaining documents, counsel for the claimant does not ask for them to be produced by a specific date, and I appreciate that some time might be needed to collect these documents from a number of different files in different locations. Nonetheless, the total number of documents or series of documents that were requested is not particularly high and they were requested in mid May, some two and a half months ago. I note that the matter is set down for a compensation hearing beginning on November 19, 2001. I order that all the requested documents be produced by no later than Tuesday September 4, 2001.

Interrogatories

[6] On May 18, 2001, the claimant requested that Peter Milburn, Regional Director of the Kootenay Regional Office, Ministry of Transportation, answer Interrogatories under Rule 29 of the Rules of Court. Mr. Milburn formally answered the Interrogatories sometime prior to July 20, 2001. At issue were three interrogatories that Mr. Milburn had not answered to the satisfaction of the claimant.

[7] The first interrogatory in dispute asked:

2. Does the use of the works for which part of Lot 6 was expropriated include the legal right of Lot 6 to access Columbia avenue at any point where Lot 6 fronts on Columbia Avenue?

Mr. Milburn replied:

In response to the second Interrogatory, the works for which part of Lot 6 was expropriated was a widening of Columbia Avenue. The use of Columbia Avenue is for a public highway. I am advised by counsel for the Respondent that the issue of whether the use of Columbia Avenue as a public highway includes the "legal right of Lot 6 to access Columbia Avenue at any point where Lot 6 fronts on Columbia Avenue" is a question of law and is not a question which I am required to answer.

[8] The claimant submits that it is not a question of law. She says that the question defines legal right to mean access of Lot 6 to Columbia Avenue at any point where Lot 6 fronts Columbia Avenue. Mr. Milburn is to answer whether the use of the works includes this right or not. The claimant cited Nikolay v. George (1995), 16 C.P.C. (4th) 5 (B.C.S.C.) a case in which Master Horn held that the scope of interrogatories could be wider than admissions of fact which it is necessary for the party interrogating to prove.

[9] The respondent says that this interrogatory is not clear and the respondent should not have to guess at its meaning. It is also not a factual question: it is either a question of law or one of opinion. As such it should be dealt with in argument or expert evidence rather than by interrogatory. By providing a definition of legal right and posing a question that assumes this definition it is in the nature of cross-examination and the case authorities establish that interrogatories should not be in the nature of cross-examination. The claimant relied on Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92.

[10] The next question that is in issue is:

7. What permit does the Ministry of Transportation and Highways intend to grant to the owner of Lot 6 to access Columbia Avenue?

Mr. Milburn's answer was:

In response to the seventh Interrogatory, I am not aware of any application for a permit to access Columbia Avenue by the owner of Lot 6. It is my understanding that the Respondent does not issue access permits except on application by the owner. Accordingly I am unable to answer this Interrogatory.

[11] The claimant says that this question is relevant to the loss of market value to the remainder. The degree of access is an important factor in that determination. She referred me to two cases which underline this point. If, as the respondent claimed, permits were issued in relation to a specific use, then Mr. Milburn could answer in the alternative: different types of permits for different specified uses.

[12] The respondent says that the question of a permit for access is always done on an individual basis related to a particular use for a specific property after an application by the owner. The respondent indicated that issuing a permit involves a consideration of public safety, and that this can only be done in the context of the specified use in a given location. Three examples of permits that were in evidence for other property owners showed the use for which the access was granted. In two cases the number of parking spots for the use were also specified and in two cases the permit specified that it was a temporary permit. In one case the type of access was limited to right in and right out. The respondent says that this question should properly be addressed as a matter of expert opinion.

[13] The last Interrogatory that was in issue was:

8. Attached as Schedules A, B and C are [specified] permits. Under what authority were these permits issued? Please include a reference to the specific legislation including a regulation or bylaw, and any section and subsection relied upon.

Mr. Milburn replied:

In response to the eighth Interrogatory, I am advised by counsel for the Respondent that the issue of the authority of the Respondent to issue the permits attached to the Interrogatories is both a question of law, and not relevant to the issues in this claim. Accordingly I am unable to answer this Interrogatory.

[14] The claimant submitted that in relation to the issuance of permits, she was asking for the authority under which MoTH purported to act and that this was more akin to a fact than a legal question put to a lawyer. As such it should be answered.

[15] The respondent stated that it was a legal question and as such should not be answered by Mr. Milburn. It was providing documents that had been requested in this Notice of Motion on the related issue of the "purported practice or policy of MoTH not to provide access to an arterial highway where the lot in question also fronts onto a city street". The respondent suggested that these documents would provide the claimant with information on this point.

[16] I conclude that I generally agree with the respondent's position on these Interrogatories. With respect to Interrogatory seven, this is not a factual question. The claimant suggests that Mr. Milburn could answer it assuming various hypothetical uses that the owner might have in a future application after rezoning to commercial. Mr. Milburn is not required to say what he guesses MoTH's opinion might be with respect to access for some hypothetical use for this property at some future unspecified time. I would add that an answer with all these qualifications would have little weight and therefore would be of little assistance to the board. Interrogatory two is on its face a legal question that is inappropriate for Mr. Milburn to answer. I do not accept the claimant's attempts to construe the question as similar to a question of fact. McLachlin and Taylor, British Columbia Practice (2nd ed.) cites Martin v. British Columbia (1986), 3 B.C.L.R. (2d) (S.C.) as authority for the rule that questions requiring consultation with an expert are not permissible. I also agree that Interrogatory two is in the nature of cross-examination and as such is not permissible. See Tse-Ching v. Wesbild Holdings Ltd.

[17] However, with respect to Interrogatory eight, I think that issue is somewhat different. MoTH has issued the specified permits. Although these permits are not for the subject property in this case, I agree that the claimant is entitled to an answer as to under what authority MoTH purported to issue these specified permits. It is not clear to me if Mr. Milburn is the person who approves or issues these permits but in any event, Mr. Milburn has an obligation to inform himself (except with respect to expert opinion). It may be that this information would be in the documents referred to by counsel for the respondent at paragraph 1(i) of the Notice of Motion but since these documents have not yet been provided I order the respondent to answer this Interrogatory as construed.