A BC Supreme Court justice has sided with a group of eight Seawatch property owners in a ruling that blunts one of the District of Sechelt’s possible defences against a lawsuit filed by the former residents of the evacuated subdivision.
But the same judge has also ruled that the property owners’ claims against a former Sechelt planner should not go forward.
In the introduction to his Aug. 24 written ruling, Justice George Macintosh paints a stark picture of the situation at Seawatch, calling it a “ghost subdivision” and saying, “It appears at this stage to be a geotechnical disaster.”
The Seawatch owners, including Rod Goy in whose name the June 25 application was filed, went to court seeking a decision on the validity of a “new and different defence” presented in an amendment to the district’s response to the lawsuit.
According to the owners, a covenant on the Seawatch properties does not release the district from “any potential future claim arising out of or connected in any way to the geotechnical conditions” as the district was arguing, and that the legislation governing covenants does not “authorize the inclusion of a release of liability.”
In their application, the Seawatch owners said the court should rule on whether the covenant “affords a defence to all, or any, of the claims,” because “if the issue is decided in the district’s favour, it will significantly narrow the issues involved in the case by eliminating the district altogether as a defendant.”
They also argued that, “Knowing ahead of trial that this ‘trump card’ excusing the district from liability for acts or omissions for which it would otherwise be liable does not exist will enhance the prospects of settlement before trial.”
Macintosh agreed with the property owners’ arguments, writing, “I was told that estimates for the length of trial are in the range of 100 days. If the release is binding, the plaintiffs’ eight actions against the district, as the principal defendant, would be for nothing. In light of that reality, it is sensible to decide now.”
Macintosh’s decision goes on to say that the provincial legislation around such covenants does not authorize such releases, and in any case the “release” in the covenant could only be interpreted as covering damage “arising from or in connection with the construction of any structures on the lands or use of the lands” and that the Seawatch owners’ claims are for things other than that type of damage.
Macintosh also ruled on another application related to the wider lawsuits, which name the district, the province, developer Concordia Seawatch Ltd., several engineering firms and Ray Parfitt, who was a planner with the district at the time the Seawatch subdivision was approved.
Parfitt and the District of Sechelt applied to the court to have the claims against him struck, arguing that in his role as approving officer he did not owe a “duty of care” to the property owners and that he is also protected from individual liability under the Local Government Act because he was a “local public officer.”
On that application the judge found in favour of Parfitt and the district and ordered that the claim against him be dismissed.
Jeff Scouten, lawyer for the group of eight Seawatch owners involved in the lawsuits at issue, said they are considering whether to appeal that part of the decision.
The District of Sechelt said it has no comment on the court ruling.
