The province has been ordered to pay financial damages to owners of two homes in Sechelt’s Seawatch subdivision. The subdivision has remained closed since Feb.15, 2019 due to a provincially approved State of Local Emergency (SOLE) because of risks from sinkholes and subsurface instability.
BC Supreme Court Justice Geoffrey B. Gomery’s decision was released Jan. 10. He ruled that in the absence of additional supporting evidence, the province’s weekly renewals of the District of Sechelt declared SOLE, ceased to be “reasonable” three months after it was initially declared.
He awarded a judgment against the province for nuisance to homeowner Carole Rosewall. She was awarded $108,265 in non-pecuniary damages and special damages related to rent and moving costs incurred after being forced to leave her residence. Similar awards totalling $131,200 were made to homeowners Gregory and Geraldine Latham. The court ruled the Lathams were also entitled to further special damages equal to their moving and storage expenses. In addition, the homeowners were declared eligible for awards of their legal costs.
The decisions are subject to appeal.
Jason Gratl, lawyer for the homeowners told Coast Reporter, “My clients are relieved with the decision and are grateful that there may be a path forward to resolving the issues around their properties.”
“At this stage, the Court has declared that using the Emergency Preparedness Act (EPA) to perpetuate an indefinite state of emergency is unreasonable, but the Court has not indicated what, in law, ought to be the ultimate fate of the subdivision." Considering the ruling, Gratl said he believes that the province, the district and the property owners should all sit down and consult with one another about the available options consistent with the law and consistent with an appropriate ethical approach to the contributions, losses and obligations of each side. “In my view, the judgment is reasonable and quite consistent with the province’s own internal reckoning of the scope of its powers under the EPA,” he stated.
In his reasons for decision, Gomery wrote that provincial renewal of the SOLE ceased to be reasonable after May 17, 2019. “By that time, it was no longer reasonable to approve renewal of the SOLE in the absence of evidence of a reasonable plan to investigate and address the risks to public safety and property in Seawatch. What was required was something more than just an indefinite evacuation of the subdivision.”
“The award in this case covers only the period from May 17, 2019 until judgment. If the Province continues the nuisance following issuance of these reasons for judgment, there may be further litigation in which any future loss would fall to be compensated.”
The homeowners had originally also named Sechelt as a defendant in their court action. They discontinued that claim in 2021 after the BC Court of Appeal dismissed claims of nuisance against Sechelt in connection with the evacuation order in another case.