The B.C. Court of Appeal has overturned a court decision holding the province liable “in nuisance” after Sunshine Coast residents were forced from their homes by the threat of giant sinkholes in 2018.

According to the court, nuisance is defined as a tort or civil wrong that arises from conduct by a defendant that substantially and unreasonably interferes with the use and enjoyment of their property.

According to a ruling issued Thursday, the province of B.C. cannot be held liable for blocking residents from accessing their homes because “there is no suggestion that the province owned, occupied, or made use of [the] land.”

The province had launched an appeal after a lower court judge ordered it to pay hundreds of thousands of dollars to homeowners in the Sechelt neighbourhood of Seawatch to compensate them for rent, moving and furniture after they lost the use of their homes. 

The lower court ruling stated that neighbours Carole Rosewall and Gregory and Geraldine Latham had been left in “limbo” by a 2019 evacuation order and a provincially-funded fence that kept them away from their properties while squatters and vandals moved in.

The District of Sechelt issued an evacuation order and declared a state of local emergency under B.C.’s Emergency Power Act in February 2019 after a 12-metre-deep sinkhole opened up on the roadway.

A rudimentary graphic showing a house on the edge of a hole with people and vehicles falling in.
A sign in Sechelt warns of the risk of sinkholes. (Rafferty Baker/CBC)

The Minister of Public Safety renewed the state of local emergency weekly for almost three years until last February, shortly after the ruling holding the province liable “in nuisance.”

The lower court judge agreed with the Lathams that the province was liable in nuisance for encouraging and funding construction of a permanent fence that, since May 2019, has prevented people from entering Seawatch.

It also found it was liable for “unlawfully” maintaining the state of local emergency for three years.

Province argued administrative action, not nuisance

In its appeal, the province argued that the judge was wrong to expand the tort of nuisance to include a “purely administrative action.”

The appeal judge accepted the province’s argument.

“Nuisance requires, at minimum, that the defendant engage in some kind of use of the land from which the interference emanates,” wrote Justice Patrice Abrioux. “There is no suggestion that the Province owned, occupied, or made use of land from which a nuisance emanated.”

The lawyer representing the Lathams says his clients reacted with mixed feelings to the ruling.

On the one hand, Jason Gratl says his clients are “gratified and pleased” that the Court of Appeal recognized that the province has a responsibility not to abuse or misuse its jurisdiction in renewing the state of local emergency.

“My clients are less enthusiastic about the finding that the province Is not liable in nuisance for substantially interfering with their property,” said the Vancouver lawyer.

Gratl says his clients have 60 days to decide whether or not to appeal the ruling to the Supreme Court of Canada. He says it’s yet to be seen what happens with the close to $100,000 awarded to the Lathams by the lower court.

The Court of Appeal did not award the province court costs in its decision.

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