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December 17, 2002,  E.C.B. 68/01/229

Between:Wayneroy Holdings Ltd.
Claimant
And:Her Majesty the Queen in right of the
Province of British Columbia as represented
by the Minister of Transportation and Highways
and the Ministry of Transportation and Highways
Respondent
Before:Sharon I. Walls, Vice Chair
Appearances:Robert J. Harvey, Q.C., Counsel for the Claimant
Fran Crowhurst, Counsel for the Respondent

REASONS FOR DECISION

 

Introduction

[1]   The claimant, Wayneroy Holdings Ltd. (Wayneroy), brings an application to further amend its Form A and the respondent, Her Majesty the Queen as represented by the Minister of Transportation and Highways and the Ministry of Transportation and Highways (the Ministry), brings an application that the claimant draft and file its proposed amendments to the Form A in accordance with Rule 24 of the Supreme Court Rules.

[2]   The background to this claim is that Wayneroy owns two adjoining parcels, one approximately 65 hectares (160 acres) and one approximately 25 hectares (61 acres) near Courtenay, British Columbia. A significant portion of the two parcels is forested. On February 7, 2000 the respondent, the Minister of Transportation and Highways and the Ministry of Transportation and Highways (the Ministry), expropriated 6.58 hectares (16.26 acres) from the 65 hectare parcel and 1.26 hectares (3.11 acres) from the 24 hectare parcel for the Island Highway under the Expropriation Act, R.S.B.C. 1996, c. 125 (the Act). These partial takings totalled approximately 8 hectares (20 acres) and formed a strip that was approximately 115 metres (378 foot) wide and bisected the two parcels.

[3]   Two separate Form As were initially filed by Wayneroy on January 19, 2001. On June 28, 2001 a consolidated Form A was filed by consent. Wayneroy filed an amended Form A on September 24, 2001. A hearing date for May 2003 was set by consent on August 7, 2002.

[4]   Four affidavits were filed in this application: one was from Wayne Leakey, one of the principals of Wayneroy and three were from Hugh Trenchard, a legal assistant with the Ministry of Attorney General. Two of Mr. Trenchard's affidavits had been filed in June and July 2002 when earlier hearings of the respondent's motion had been initially scheduled.

[5]   In 2000 Wayneroy commenced an action in the Supreme Court against five personal defendants who are water license holders and Her Majesty the Queen in Right of the Province of British Columbia, represented by Minister of Lands, Parks and the Environment. In an earlier affidavit of Mr. Leakey, this action was characterized as one in nuisance for back flooding of a substantial part of the subject property in connection with creating a salmonid fish habitat. In October 2002 the defendant, Her Majesty the Queen in Right of the Province of British Columbia brought an interlocutory application in the Supreme Court action seeking inter alia an order that the fourth Amended Statement of Claim be struck out (as against Her Majesty the Queen) in its entirety under Rule 19(24) or in the alternative that the action be stayed. In reasons released October 30, 2002 Mr. Justice Romilly refused to strike out the fourth Amended Statement of Claim but granted the order that the Supreme Court action be stayed under Rule 19(24) "until such time as [this board] has had the opportunity to hear this matter in its entirety".

 

2.   Wayneroy's position

[6]   Wayneroy's position was that the proposed amendments were necessary because of Romilly J.'s reasons staying the Supreme Court action until the expropriation matter had been completed. Several of the proposed amendments were related to the back flooding matter and a claim under section 41 of the Act for injurious affection without a taking. As to the requirements under Rule 24 of the Supreme Court Rules Mr. Harvey, counsel for Wayneroy pointed out that Rule 24 was not formally adopted in the board's Practice and Procedure Regulation, B.C. Reg. 452/87. The only specific instructions as to how claimants are to frame their expropriation claim are within the prescribed Form A: "the claimant should set out … clearly and concisely in subparagraphs lettered consecutively 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". There is no requirement for the claimant to set out causes of action. In any event, Wayneroy submits, claimants in expropriation matters should have some latitude on how the pleadings are drafted. The requirement in rule 24(2) that amendments in the pleadings should be underlined is subject to the qualification "unless the court otherwise orders". In this case the claim had been so recast that underlining was of no constructive use. Wayneroy relied on the case of Reti v Sicamous (District) (1999), 66 L.C.R. 57 (B.C.E.C.B.); leave to appeal on other grounds dismissed, 66 L.C.R. 235 (B.C.C.A.) where an amendment of the Statement of Claim was allowed.

 

3.  Ministry's position

[7]   The Ministry's position was that the proposed amendment should not be allowed. This position was related to the Ministry's application that the claimant draft and file its proposed amendments to the Form A in accordance with Rule 24 of the Supreme Court Rules. While the Ministry had a number of objections, they could be categorized into two basic groups. First the format of the proposed Form A was not as specified in Rules 19 and 24. The paragraphs were not brief, they were not numbered consecutively, and the changes were not underlined. Secondly specific paragraphs of the proposed Form A were objectionable for various reasons, including the fact that they contained unnecessary material such as repetition, evidence and argument, as well as the fact that they contained inconsistent claims and claims that failed to disclose a cause of action known to law. Because of some of these alleged failings, certain of the paragraphs in the proposed Form A were subject to a subsequent application that they be struck under Rule 19(24). The general result was that the Form A was confusing and as a result it was prejudicial.

[8]   The Ministry relied on Homalco Indian Band v. British Columbia, [1998] BCJ No. 2703 (BCSC) in which the chambers judge, Smith J., set aside the Statement of Claim under Rule 19(24) as its construction was confusing and it appeared to contain unnecessary material. The Plaintiff was given leave to substitute a Statement of Claim that was in accordance with the principles for drafting pleadings set out in his reasons and the authorities.

 

4.  Analysis and conclusion

[9]  While it is true that neither Rule 19 governing pleadings generally, nor Rule 24 governing amendments to pleadings, has been expressly prescribed in the board's Practice and Procedure Regulation, the board has frequently referred to the Supreme Court Rules for guidance in general and to these specific rules in particular in other proceedings. See for example Chivers v. British Columbia (Minister of Transportation and Highways) (2001), 76 L.C.R. 49 (B.C.E.C.B.). Given that the Form A has already been amended once in September 2001 and a hearing date has now been scheduled for May 2003 it has consistently been the board practice under Rule 24 to require that the Form A be amended by consent of the parties or by order of the board. (I am ignoring the consolidated Form A that was filed in June 2001 by consent following the separate Form A's for the two parcels in January 2001.)

[10]  While this proposed Further Amended Form A would only be the second formal amendment to the Form A if it is granted, the affidavits filed by Mr. Trenchard attached numerous drafts of proposed Further Amended Form A's starting in May 2002 that had been forwarded to the Ministry for its information. Further amendments are expected when Wayneroy receives its appraisal report, which it has been expecting since September. It informed us on November 29, 2002, that the report should be delivered within a very short period of time: within days rather than weeks.

[11]  The Ministry referred us to a quote from Smith J. in Homalco Indian Band at para 5 as to the function of pleadings:

The ultimate function of pleadings is to clearly define the issues of fact and law to be determined by the court. The issues must be defined for each cause of action relied upon by the plaintiff. That process is begun by the plaintiff stating, for each cause, the material facts, that is, those facts necessary for the purpose of formulating a complete cause of action: Troup v. McPherson (1965), 53 W.W.R. 37 (B.C.S.C.) at 39. The defendant, upon seeing the case to be met, must then respond to the plaintiff's allegations in such a way that the court will understand from the pleadings what issues of fact and law it will be called upon to decide.

[12]  Another authority provided by the Ministry referred to Madam Justice McLachlin's comments on the principles to be followed in the amendment of pleadings in Victoria Grey Metro Trust Company v. Fort Gary Trust Company, 26 January 1982, Vancouver Registry No. H791797, (B.C.S.C.). She said:

The basic rule … is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. … These provisions arguably support a generous approach to the question of amendments. However, the Court will not allow useless amendments. … Similarly, it seems to me obvious that the Court will not give its sanction to amendments which violate the rules which govern pleadings. These include the requirements relating to conciseness; material facts; particulars; and the prohibition against pleadings which disclose no reasonable claim or are otherwise scandalous, frivolous, or vexatious.

[13] As indicated by these authorities the function of pleadings is to clearly define the issues so that, ultimately, the board will know what it has to decide. The rationale for allowing amendments is to enable the real questions to be determined. The need for amendments may arise as a result of new facts being discovered or new issues of law being raised. Sometimes as late as during the hearing amendments may be necessary to better reflect the facts as they have come out in the evidence (although at this stage any amendments are usually relatively minor ones). However, amendments are not allowed where prejudice is demonstrated as a result of, for example, unnecessary material or confusing construction. Similarly, amendments are not permitted where they are too far outside the rules for pleadings set out in Rule 19 of the Supreme Court Rules. In each case the requirement for the proposed amended pleadings to meet these criteria is to better enable the board to know the questions that have to be answered.

[14]  At the hearing it was recognized by everyone that the proposed Form A contained a typographical error in that several paragraphs were repeated twice. This needs to be corrected and Mr. Harvey indicated that he would do that. There also were two other layout problems. One was a two inch space on almost every page in the middle of a paragraph, presumably generated by the computer. The other was the paragraph numbering which went as follows: 1, 2, 3, 4, a, b, c, d, e, f, g, iii, iv, v, vi, 5, 6, 7, etc through to 23. At an earlier time the proposed Form A had contained paragraphs numbered i and ii but these have been subsumed into g in subsequent drafts and the paragraphs had not been renumbered. Proceeding from numbers to letters to roman numerals and back to numbers in this manner is confusing. While there are a variety of ways of setting out the Statement of Claim within the Form A I would suggest that in drafting this relatively long Further Amended Form A that all the paragraphs in the Form A be renumbered from the first page starting with 1 and proceeding through 2, 3, 4, 5, 6, 7, etc. Subparagraphs should only be used where logical organization dictates and one common method should be adopted for labelling all the subparagraphs. I would also suggest omitting the instructions contained in the form beginning with the title "Statement of Claim" presently found at paragraph 4 of the proposed Further Amended Form A. The readers of the Form A do not need this heading nor the instructions. All of these typographical and layout corrections will make the Further Amended Form A easier to follow.

[15]  There are a number of amendments in the proposed Further Amended Form A compared to the last Form A that was filed in September 2001. While some of these amendments are for new claims such as a claim for methane or natural gas and for a special economic benefit, other amendments are a redrafting of the earlier claims. Some of this redrafting specifies the earlier claim more narrowly: for example the claim for severance of both parcels appears now to be limited to the severance of the smaller parcel. The proposed Form A also has less unnecessary repetition about the disturbance damages with respect to the timber and gravel.

[16]  I agree with Wayneroy that in principle it should be able to amend the Form A to better clarify the issues to be decided. As I have indicated, some of the proposed amendments are an improvement over the filed Form A as there is less unnecessary repetition and some issues are more narrowly defined. However, I must consider whether any of the proposed amendments are useless in the sense of being unnecessary or whether they are sufficiently in conformance with the principles set out in the Supreme Court Rules that the Ministry is not prejudiced in making its response.

[17]   One of the reasons that was emphasized as the justification for the proposed amendments to the Form A was Romilly J.'s ruling in the related Supreme Court action. There were several new paragraphs and subparagraphs in the proposed Further Amended Form A related to section 41 of the Act and back flooding of some of the subject lands. However, the earlier filed Form A made a claim under section 41. One of the requirements of pleadings under Rule 19 is that they be as brief as the nature of the case will permit. The claimant made clear that it sees the most likely forum for this claim as the Supreme Court. Romilly J. has ruled that the matter be stayed until the expropriation claim has been heard in its entirety. But that does not necessarily mean that the expropriation claim should now proceed in a different fashion. While I agree that the proposed paragraph 3 sets out the claim more clearly than paragraph iv of the filed Form A, I do not see that any of the other paragraphs relating to the section 41 claim in the proposed Form A add anything to the claim. The issue of a claim for any back flooding of the claimant's lands under section 41 is already raised in the proposed paragraph 3. Amendments that are unnecessary can be refused. See Forrest v Johnson, unreported, June 10, 1998, No.S029346, New Westminster (BCSC). As a result I specifically refuse the following paragraphs in the proposed Further Amended Form A: paragraph 4(b), (c), (d), (e) (f).

[18]  While the proposed Further Amended Form A has been edited and contains less unnecessary repetition than the filed Form A, I agree with the Ministry that paragraphs g, iv, v, vi and 14 overlap and appear to be duplicative. I would suggest that these paragraphs be scrutinized to see if the claims for timber, gravel and methane can be stated more concisely. If there is a claim that is in the alternative it should be clearly stated as such (In the alternative the claimant claims…) rather than making inconsistent claims. I also agree that paragraph 19 raises a claim already decided by the Supreme Court and the Court of Appeal and therefore it should not be raised again. Keeping in mind that the pleadings should be as brief as the nature of the case will permit, the pleadings do not need to contain unnecessary statements such as "until [the Claimant obtains appraisal evidence] the claim in the dollar amount of the section 40 claim cannot be described" (proposed para 5) and "subject to interrogatories and other discovery process" (proposed para 12). I would refer the claimant to Chivers and in particular para 72.

[19]  I agree with Wayneroy that underlining the proposed Further Amended Form A is difficult when there are so many changes and I do not require that that step be done at this time. If there are any further amendments they will have to be underlined.

[20]  Wayneroy is to draft a new proposed Further Amended Form A substantially in compliance with the principles and suggestions set out in these reasons. Since the appraiser's report was expected in December and in any event the claimant is able to discuss with the appraiser what the report will say it is strongly urged that this new proposed Further Amended Form A contain the amendments about the claims relating to market value. Although I recognize that I may not have a complete understanding of Wayneroy's total claim, in my view, the claimant should concentrate on its primary claims rather than making frequent draft amendments containing new peripheral claims that are already included or have already been eliminated. Given that the matter is scheduled to be heard in May 2003, I direct that the proposed Further Amended Form A (unfiled) is to be provided to the Ministry and the Board by January 10, 2003. The board will convene a brief case management of this matter by teleconference in the following week (assuming that this time frame is feasible for counsel) to discuss any procedural matters arising from this Further Amended Form A. The Registrar will contact counsel to arrange this case management. The parties may wish to attend the teleconference and if so the Registrar can arrange for extra lines to be available.

 

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