Oral Decision

IN THE MATTER OF THE EXPROPRIATION ACT
R.S.B.C. 1996, Chapter 125

ECB CONTROL No.: 41/01/207

June 8, 2001
Victoria, B. C.

Between:	Rascal Trucking Ltd. Claimant
And:	The City of Nanaimo Respondent
Before:	Sharon Walls, Vice Chair
Appearances:	Hans Heringa, P.Eng. For the Claimant Guy McDannold For the Respondent

VICE CHAIR: The claimant Rascal Trucking Ltd. brought an Application for Determination of Compensation under the Expropriation Act R.S.B.C. 1996, c. 125 ("the Act") for expropriation or injurious affection of its property under ECB file number 71/00. An application was brought by the respondent Nanaimo that this claim be dismissed on the grounds that the Expropriation Compensation Board had no jurisdiction. I granted Nanaimo's application on the basis that the taking of the topsoil under section 936 of the Municipal Act R.S.B.C. 1979, c. 290 did not constitute an expropriation as defined in section 1 of the Act nor did it constitute an injurious affection for which compensation is payable to the claimant under section 41 of the Act. Reasons for this decision were released on December 28, 2000 and are reported at Rascal Trucking Ltd. v. Nanaimo (City) (2000), 71 L.C.R. 241. I understand that Rascal has filed a notice of application for leave to appeal that decision.

[2] Rascal has now brought a second Application for Determination of Compensation under ECB file number 41/01. The respondent Nanaimo has brought a Notice of Motion in this file for an Order that the Expropriation Compensation Board does not have jurisdiction and that the second application 41/01 is res judicata vis a vis the reasons provided by the board in the December 28, 2000 reasons in ECB file number 71/00.

[3] Nanaimo's position is that the second Application for Determination of Compensation in ECB # 41/01 makes essentially the same claim for compensation as contained in the first Application for Determination of Compensation in ECB # 71/00. The only difference is that Rascal Trucking has now given up its claim that an expropriation has occurred. Instead Rascal bases its claim in the second Application for Determination of Compensation, ECB # 41/01, on section 312 of the Local Government Act. Nanaimo says that this section merely replaces section 544 of the Municipal Act R.S.B.C. 1979, c. 290 on which Rascal relied in the prior application. Nanaimo submits that the principle of res judicata applies because this board has already considered the same questions and issues that are raised in ECB #41/01, in ECB # 71/00 and these questions were answered in the reasons dated December 28, 2000. Even if section 312 of the Local Government Act was not a replacement section for section 544 of the Municipal Act, the principle of res judicata requires Rascal to make all of the arguments open to it during its initial claim. It is not open to Rascal to bring a second claim dealing with the same questions and issues based on a new argument.

[4] Rascal's position is that section 312 of the Local Government Act was not specifically discussed in the prior application. Rascal interprets section 312 as providing a basis for a claim to be determined by this board, which was not dealt with in the prior application. Rascal attempted to make submissions about a number of other facts as to its ongoing dispute with Nanaimo but whatever the merits of these submissions might be, they are not relevant to the issue before me on this application.

[5] The issue that I have to decide is whether the principle of res judicata applies or whether the questions and issues raised in the second Application for Determination of Compensation in ECB # 41/01 for determination by this board are different from those contained in the first Application for Determination of Compensation in ECB # 71/00.

[6] Section 544 of the Municipal Act R.S.B.C. 1979, c. 290 which was relied on by Rascal in its first application provided:

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.

There were amendments to the Municipal Act in 1996 whereby section 324 replaced section 544 as follows. I was not provided with the date when section 324 came into force. Section 324 provided:

324

A council must make adequate compensation 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, for any damages necessarily resulting from the exercise of those powers beyond any advantage which the claimant may derive from the contemplated work.

Finally section 312 of the Local Government Act, on which Rascal now relies, replaced section 324 at some date in 1998. Again I was not provided with the information as to the precise date when this section came into force and replaced section 324. It provides:

312 (1)	If a municipality
	(a)	exercises a power to enter on, break up, take or enter into possession of and use any property without the consent of the owners of the property, or injuriously affects property by the exercise of any of its powers, and
	(b)	exercises a power referred to in paragraph (a) that does not constitute an expropriation within the meaning of the Expropriation Act, compensation is payable for any loss or damages caused by the exercise of the power.
(2)	For the purposes of subsection (1), compensation must be as determined and paid as soon as reasonably possible in an amount set
	(a)	by agreement between the claimant and the municipality, or
	(b)	if no agreement is reached, by the Expropriation Compensation Board.

[7] Res judicata is a principle to prevent the relitigation of issues that have already been addressed by the parties in a court or tribunal hearing. J. Sopinka, S.N. Lederman & A.W. Bryant, in The Law of Evidence in Canada, 2nd ed. (Toronto and Vancouver: Butterworths, 1999), at p 1078 set out the following principles:

There are two principles subsumed under the heading res judicata. The first is that any action or issue which has been litigated and upon which a decision has been rendered cannot be retried in a subsequent suit between the same parties.... This principle prevents the contradiction of that which was determined in the previous litigation by prohibiting the relitigation of issues already actually addressed.

The second principle makes it mandatory that a plaintiff asserting a cause of action must claim all possible relief in respect thereto, and prevents any second attempt to invoke the aid of the courts in the same cause. It is sometimes called "merger" because the plaintiff's cause of action becomes "merged" in the judgment. .... This principle prevents the fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.

[8] This board in Denault v. Barclay (2000), 71 L.C.R. 185 considered the question of res judicata and the principles as set out in Sopinka, Lederman and Bryant. In that case the Chair reviewed the pleadings and the judgment that had been rendered in the earlier court decision and concluded that all of the issues raised for the board's consideration in the Application for Determination of Compensation had not been already determined in the earlier court proceedings. As a result the principle of res judicata did not apply and the Application for Determination of Compensation was not dismissed.

[9] In this case the first Application for Determination of Compensation in file ECB# 71/00 dated October 2, 2000 sought compensation for Nanaimo's removal of the topsoil in terms of the market value of the topsoil and the reduction in market value pursuant to sections 31 and 40 of the Act, and injurious affection pursuant to section 41 of the Act. See paragraphs 4(a), (e) and (f). Rascal made specific reference to sections 544 and 557 of the Municipal Act and its reliance on these sections as a basis for compensation at paragraph 3(b). It also made ancillary claims for disturbance damages, interest and costs. See paragraphs 4(b), (d), (e), (g), (h), and (i). The second Application for Determination of Compensation in file ECB# 41/01 also seeks compensation for injurious affection and for various types of disturbance damages, interest and costs. See paragraphs 4(b), (d), (e), (g), (h), (l) and (m). Paragraph 4(a) now seeks a claim for compensation for the market value of the topsoil or for the loss of the topsoil under section 312 of the Municipal Act (in fact I understand it is the Local Government Act). Rascal says that this latter claim is a non-expropriation claim as provided for in section 312. It also claims for frustration of a Permit with Nanaimo, loss of reputation and goodwill, loss of ability to Tender to Nanaimo and for an indemnity from Nanaimo for damage claims of Kismet Enterprises Inc., the owner of the property on which the dirt pile was originally located. See paragraph 4(c), (i), (j), and (k).

[10] The Expropriation Compensation Board's jurisdiction is governed by legislation and does not include the ability to provide compensation for claims for frustration of a Permit, loss of reputation, loss of ability to Tender, nor an Indemnity except as these might fit within the heading of disturbance damages and business losses as provided in sections 34 and 40 of the Act. The primary claim in both proceedings is for the market value of the topsoil or for the loss of the topsoil, (as an expropriation claim under sections 31 and 40 of the Act in the first proceeding and under section 312 of the Local Government Act in the second proceeding), for injurious affection as a result of the taking of the topsoil under section 41 of the Act and for the ancillary claims for disturbance damages, interest and costs. We conclude that the questions and issues that are raised in the second pleadings are fundamentally the same as those on which a final decision of this board has been made in the earlier application 71/00 on December 28, 2000.

[11] Rascal says that section 312 provides a basis for a claim to be determined by this board, which was not dealt with in the prior application. I do not interpret section 312 as offering a new basis for a claim that was not available under section 544. Section 544 provides for the municipal council to make compensation to owners or occupiers where land has been "entered on", "taken", "expropriated", or "used" by the municipality, or injuriously affected. Section 312 provides that compensation is payable if the municipality "enters on", "breaks up", "take or enters into possession of", and "uses" the property without consent or injuriously affects the property. The main difference between the sections is that "expropriate" is gone in section 312 and "breaks up" and "enters into possession of ... without permission" is added. Both cover circumstances that fall into the category of expropriation and those that do not (eg injurious affection).

[12] In the reasons dated December 28, 2000 I stated at par 27:

Section 936 of the Municipal Act authorized the removal of the topsoil as a nuisance. [It also specifically authorized the council to remove the nuisance in case of default by the owner or occupier and to effect the removal at the expense of the defaulting person.] When this section is read together with sections 544 and 577 of the Municipal Act there can be no finding of injurious affection for which compensation is payable to Rascal arising from the taking of the topsoil under section 936.

I do not see any basis for this reasoning not applying equally to section 312 of the Local Government Act. I was not provided with the current equivalent section for section 936 of the Municipal Act. I would note that this reasoning would continue to apply even if section 936 has now been repealed since it authorized Nanaimo's actions at the time that they occurred. In any event, any argument based on section 312 was open to Rascal at the time of the earlier application. It is not open for the board to consider the second application on fundamentally the same questions and issues as has been finally determined in the earlier proceedings, merely because Rascal has come up with what it regards as a new argument. It is only through an appeal that Rascal has any further remedy. The principle of res judicata applies and as a result the Application for Determination of Compensation in the second proceeding, 41/01, is dismissed.

COSTS

[13] Nanaimo has specifically sought its costs in this application as well as its costs in the prior application 71/00. Costs were not addressed in the December 28, 2000 decision and remain outstanding.

[14] The principles in awarding costs are different in expropriation matters than in civil litigation. There is some discussion of these principles in El & El Investments Ltd. v. Board of School Trustees of School District # 36 (Surrey) (1996), 60 L.C.R. 41, at p. 52, where the Chair stated:

The principle that costs follow the event is not dominant in expropriation matters in the same way that it is in civil litigation matters. The objective of the compensation scheme under the Act is to make an expropriated owner economically whole, and indemnification for costs is part of that scheme. Under section [45(3)] of the Act, an owner whose interest or estate in land is expropriated is, with certain exceptions designed to discourage inflated or frivolous claims, entitled to be paid the costs which the owner necessarily incurs for the purpose of asserting a claim for compensation.

[15] The relevant parts of section 45 provides:

45 (3)	Subject to subsections(4) and (6), a person whose interest or estate in land is expropriated is entitled to be paid costs necessarily incurred by the person for the purpose of asserting his or her claim for compensation or damages. ....
(6)	On a claim under section 41 (3), the board may award, in its discretion, costs to the claimant or the expropriation authority.

In both proceedings Rascal made claims for market value of the topsoil and for injurious affection under section 41. The first application was dismissed in part on the basis that there was no expropriation. Thus the claimant has no basis for being awarded its costs under section 45(3). The first application was also dismissed on the basis that there was no injurious affection. The second application in which the claimant emphasized its non-expropriation or injurious affection claim, has been dismissed on the basis that res judicata applies. As a result of the claims for injurious affection I have discretion as to awarding costs to either party.

[16] Although Rascal's first Application for Determination of Compensation was dismissed, I am not inclined to award Nanaimo its costs of that application. As indicated above, the principle of costs is different in expropriation proceedings. The test is whether in the particular circumstances there were justiciable issues which reasonably warranted being brought to the board for determination. See Baines v. British Columbia (Minister of Transportation and Highways) (No 2) (1997), 62 L.C.R. 210 (B.C.E.C.B.) and Daflos v. School District No. 42 (Maple Ridge-Pitt Meadows) (1999), 68 L.C.R. 167 (B.C.E.C.B.). In all the circumstances, each side should bear its own costs in that application.

[17] However, with respect to the second application, I do not think that there was a justiciable issue that reasonably warranted being brought to the board. The principle of res judicata raised a significant hurdle on which there was very little chance of success. Mr. Heringa was representing the claimant Rascal Trucking himself and he has no legal training. However, this is not sufficient excuse for bringing the application. Nanaimo is to have its costs of this application at Scale 2 as prescribed in the Tariff of Costs Regulation, B.C. Reg 189/99. Nanaimo has submitted its draft Bill of Costs and an affidavit and asked that I fix the costs in order to avoid further unnecessary expense. Under section 45 I allow Nanaimo 4 units at Scale 2 plus GST and PST for a total of $638.40 and its disbursements as claimed including photocopying at $0.15 a page and faxing at $0.20 a page for a total of $31.57 including GST for a total of $669.96.

[18] Finally Nanaimo asked that I settle the orders of both applications. In the circumstances Rascal Trucking's approval of the orders are not necessary although the draft and the final signed order should both be delivered to Rascal.

"Approved by the Vice Chair"