Citation:

Sequoia
          Springs West Development Corp. v. British Columbia (Minister of Transportation
          and Highways)

Date:
          20030103

2003
          BCCA 8

Docket:

CA026942

CA028227

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

SEQUOIA SPRINGS WEST DEVELOPMENT CORP.

CLAIMANT/APPELLANT

(RESPONDENT
          ON CROSS APPEAL)

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE

OF BRITISH COLUMBIA AS REPRESENTED BY THE

MINISTER OF TRANSPORTATION AND HIGHWAYS

RESPONDENT/RESPONDENT

(APPELLANT
          ON CROSS APPEAL)

Before:

The
          Honourable Mr. Justice Esson

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Saunders

L.J.
          Alexander and C.E. Hanman

Counsel
          for the Appellant

A.V.W.
          Hincks and F. Crowhurst

Counsel
          for the Respondent

Place
          and Date of Hearing:

Victoria,
          British Columbia

May
          23 and 24, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January
          3, 2003

Written
    Reasons by:

The
    Honourable Madam Justice Saunders

Concurred
    in by:

The
    Honourable Mr. Justice Esson

The
    Honourable Mr. Justice Donald

Reasons for Judgment of the Honourable
    Madam Justice Saunders:

[1]

Sequoia Springs West Development Corp. appeals a compensation award
    made by the Expropriation Compensation Board on February 15, 2000 under the
Expropriation Act
, R.S.B.C. 1996, c. 125.  The Minister of Transportation
    and Highways ("MoTH"), representing the Provincial Crown, cross
    appeals the award and the order for payment of costs made in favour of Sequoia
    Springs.

[2]

The compensation award was made in respect of the taking by the Provincial
    Crown of approximately 29 acres of Sequoia Springs' property for the construction
    of the portion of the Inland Island Highway on Vancouver Island known as the
    Campbell River Bypass.

[3]

The lands taken were part of a 234 acre property.  Before the taking
    Sequoia Springs was in the process of developing the property as a residential
    golf course community.  The taking bisected the property from the southwest
    to the northeast corner.  The remaining two parcels, separated by highway,
    were approximately 91 acres and 114 acres.  It was said that after the taking
    they were unsuited to development of a golf course.  Sequoia Springs said
    that in addition to compensation for the partial taking, it was entitled to
    compensation for costs thrown away, diminution in value of the remaining lands,
    disturbance damages and damages for delay in development caused by the taking.

[4]

Because the expropriating authority and Sequoia Springs had made an
    agreement under s. 3 of the
Act
whereby Sequoia Springs agreed
    to the transfer of land but did not agree to the compensation to be paid,
    the Expropriation Compensation Board was required to determine the amount
    of compensation payable.  The hearing proceeded on the basis that the expropriating
    authority had paid Sequoia Springs $1,425,000 as advance payments under s.
    20 of the
Act
.  After the Board issued its decision it was determined,
    in a matter relevant to the cross appeal on costs, that MoTH had paid Sequoia
    Springs an additional $54,500, bringing the total of advance payments to $1,479,500.

[5]

The Expropriation Compensation Board ordered MoTH to pay Sequoia Springs:

1.   compensation under s. 40 of the
Act
for the market
    value of the land that was acquired and the reduction in market value of the
    remaining land, in the sum of $1,480,000;

2.   compensation under s. 40 of the
Act
for business
    losses in the sum of $200,000; and

3.   its actual reasonable legal, appraisal and other costs to June
    28, 1999 and its costs as prescribed in
The Tariff of Costs Regulation
,
    B.C. Reg. 189/99 after that date.

A.
The Grounds of Appeal

[6]

Sequoia Springs contends that it should be awarded a greater sum.
    It contends the Expropriation Compensation Board erred:

1.   in using after acquired evidence to determine a significant and
    substantial downward adjustment to a comparable property, thereby negatively
    affecting the market value of the lands;

2.   in failing to award damages for costs thrown away in developing
    the halted golf course project;

3.   in failing to award damages for work done and costs incurred between
    May 1993 and the actual taking in July 1, 1995, because of the prospect of
    expropriation.

[7]

The Minister of Transportation and Highways contends in the cross appeal
    that the Expropriation Compensation Board erred:

1.   in awarding any disturbance damages;

2.   in its conclusions with respect to the highest and best use; and

3.   in its award of costs to Sequoia Springs, particularly in giving
    effect to an offer to settle made shortly before commencement of the hearing
    (the
Calderbank
letter issue).

B.
The Statutory Scheme

[8]

The
Expropriation Act
establishes the procedures to be
    followed and the criteria to be used in establishing the amount of compensation
    for expropriated property
.

[9]

The compensation scheme is established in Part 6 of the
Act
.
    The sections relevant to this appeal are:

30
(1) Every owner of land that is expropriated is entitled to compensation,
    to be determined in accordance with this Act.

...

31
(1) The board must award as compensation to an
    owner the market value of the owner's estate or interest in the expropriated
    land plus reasonable damages for disturbance but, if the market value is based
    on a use of the land other than its use at the date of expropriation, the
    compensation payable is the greater of

(a)
    the market value of the land based on its use at the date of expropriation
    plus reasonable damages under section 34, and

(b)
    the market value of the land based on its highest and best use at the date
    of expropriation.

...

32
The market value of an estate or interest in land is the amount that would
    have been paid for it if it had been sold at the date of expropriation in
    the open market by a willing seller to a willing buyer.

Exclusions
    from market value

...

34
(1) An owner whose land is expropriated is entitled to disturbance damages
    consisting of the following:

(a)
    reasonable costs, expenses and financial losses that are directly attributable
    to the disturbance caused to the owner by the expropriation;

(b)
    reasonable costs of relocating on other land, including reasonable moving,
    legal and survey costs that are necessarily incurred in acquiring a similar
    interest or estate in the other land.

...

40
(1) Subject to section 44, if part of the land of an owner is expropriated,
    he or she is entitled to compensation for

(a)
    the market value of the owner's estate or interest in the expropriated land,
    and

(b)
    the following if and to the extent they are directly attributable to the taking
    or result from the construction or use of the works for which the land is
    acquired:

(i)
    the reduction in the market value of the remaining land;

(ii)
    reasonable personal and business losses.

...

(3)
    If part of the land is expropriated, the amount of compensation payable in
    respect of the matters referred to in subsection (1) (a) and (b)
    (i) may be established by determining the market value of the area of all
    of the land before the date of expropriation and subtracting from it the market
    value of the land remaining after the expropriation occurs, but in no case,
    subject to section 44, must compensation be less than the amount determined
    by multiplying the ratio of the area of the land taken to the area of all
    of the land before it was taken, times the value of the land before it was
    taken with the appropriate reduction if the interest expropriated is an easement,
    right of way or similar interest less than the fee simple interest.

(4)
    For the purposes of the second calculation referred to in subsection (3),
    the value of the land before it was taken is the value of the land only, having
    no regard to improvements on the land.

(5)
    If, in the case of a partial taking, the character and use, or potential use,
    of the land before it was taken varies such that the land that was taken was,
    before the taking, more valuable or less valuable than the average value of
    the land that was not taken, the board may, after making a determination under
    subsection (3), make an adjustment to reflect that value accordingly.

[10]

An
    appeal from a decision of the Expropriation Compensation Board is brought
    directly to this Court under s. 28 of the
Act
:

28
(1) An appeal lies to the Court of Appeal from a determination or order of
    the board with leave of a justice of the Court of Appeal.

(2)
    On an appeal, the court may

(a)
    refer the matter back to the board, or

(b)
    make any determination or order that the board has the power to make.

C.
The Standard of Review

[11]

The appeal and cross appeal engage issues of fact and law.  In
Golden
    Valley Golf Course Ltd. v. British Columbia (Minister of Transportation and
    Highways)
2001 BCCA 392 this Court considered a previous decision
,
Actton Petroleum Sales Ltd. v. British

Columbia (Minister of
    Transportation and Highways)
, (1998), 64 L.C.R. 161 (B.C.C.A.) in
    light of
Pushpanathan v. Canada (Minister of Citizenship and Immigration)
,
    [1998] 1 S.C.R. 982.  Madam Justice Newbury, writing for the Court, concluded
    that
Actton
correctly set out the relevant principles as follows:

In my view,
except
    for matters of pure law (such as the interpretation of a constituent

statute)
,
    the proper standard of review is that of "reasonableness". . . .
    In order to succeed on factual issues, or on issues of mixed fact and law
    the complainants must show that the Board's award is unreasonable, or is supported
    by reasons which cannot bear scrutiny, either for lack of an evidentiary foundation
    or for some defect in the process by which conclusions were drawn from the
    evidence. [para. 12; emphasis added.]

[12]

Thus,
    in questions of interpretation, the standard of review is correctness.  On
    issues of fact or mixed fact and law the proper standard of review is reasonableness.
    In considering issues of fact, in particular, it is useful to bear in mind
    the standard applied by this Court in appeals from orders in civil litigation,
    for as Madam Justice Southin noted in
Casamiro Resource Corp. v. British
    Columbia
, 2000 BCCA 407 at para. 16, "This Court, under the
Expropriation
    Act
, has no greater power to review the decisions of the Expropriation
    Appeal Board than it has to review judgments of the Court below in ordinary
    civil litigation."

D.
    Discussion

Issue 1  Did the Expropriation Compensation Board err in
    its application of the comparable method to               determine market
    value?

[13]

In
    this issue the appellant contends that the Expropriation Compensation Board
    erred in determining the market value of the land taken.  Under s. 40(3),
    where, as here, there is a partial taking, the value to be determined is the
    market value of the land taken plus injurious affection to the remaining land.
    Determination of this value may be effected by comparing the value of the
    entire parcel before the taking to the value of the parcels remaining after
    the taking.  Those values may be determined by differing methods.  Where the
    evidence allows, however, one expects before and after values to be determined
    using the same method, e.g. comparison or development value approach.

[14]

The
    appraisers called by each party had utilized both the comparison and the development
    methods in their before taking appraisals, but only the development approach
    in the after taking appraisal.  The Expropriation Compensation Board held
    that the highest and best use, both before and after the taking, was for

...
    a residential development with single and multi-family sites, with substantial
    park and green space, to be phased in over a number of years.  In both cases
    development was contingent on zoning approvals and the adoption of a CDP for
    the property.

It
    determined the before taking value by comparing the entire parcel to comparable
    properties, the best of which was acknowledged to be the Hilchey Road property,
    and checking it against values generated by the developmental approach.  It
    determined the after taking value by considering the value of the remnants
    based on a development approach.

[15]

In
    discussing its approach on the before taking value, the Board said:

[49]
    There is much commentary on the lack of reliability of the Development Approach
    to derive value.  One of the principal objections to the method is the hypothetical
    nature of the exercise.  E.C.E. Todd in
The Law of Expropriation and Compensation
    in Canada
, 2
nd
ed. (Carswell Co. Ltd, Toronto, 1992) says at
    page 219:

...
    unless a proposed subdivision has actually been officially approved there
    is always some degree of uncertainty as to whether, and under what conditions,
    the subdivision would ever have materialized.

[50]
    The approach requires an estimation of numerous subjective factors such as
    the number of lots, engineering and other development costs, absorption rate,
    developer's profit and overhead, and the discount rate. ...

[53]
    In this case, we do have an approved plan for the
after
scenario.
    There is some difficulty in establishing a plan for the
before
scenario,
    as a variety of layouts might have been approved.  We also have the benefit
    of engineering evidence based on the approved plan and other plans derived
    from the approved plan. However, despite these factors, the volatility inherent
    in the Development Approach means that the Direct Comparison Approach is to
    be preferred except where there is insufficient evidence to support a comparative
    approach.

...

[55]
    Faced with no evidence in the
after
scenario but that from the Development
    Approach we reluctantly rely on this approach to reach a valuation of the
    property after the taking.  See
Double Alpha Holdings
.  In the
before
scenario, we have evidence based on both the Direct Comparison Approach and
    the Development Approach; however, the two appraisers conclude relatively
    similar value from each approach.  For the reasons outlined above we give
    more weight to the Direct Comparison Approach.

...

[61]
    Both appraisers have provided a detailed analysis with much information.
    We are assisted by the three comparables selected by Parkhill, which were
    considered by both appraisers, although all three are considerably smaller
    than the subject.  A number of the other comparables were much smaller, at
    less than 20 acres, and we do not find them useful.  We agree with Parkhill
    that the 75 acre Hilchey Road property is the best of the three selected comparables.
    It is true that this sale was not sold on the open market, a portion of it
    being part of a trade with the Crown.  However, both appraisers, after their
    various enquiries, were satisfied with the sale price that had been established
    by two appraisals. ...

[62]
    A large percentage of the subject property, approximately 25%, is set aside
    for park and dedicated greenways.  Another 10% of the land is in covenanted
    greenways that will form part of the residential lots.  For the purposes of
    comparison, both appraisers deducted the dedicated greenways from their calculations
    of developable land, as they are an unusual feature of the property and cannot
    be sold.  For the same reason, they also deducted the detention pond from
    the Hilchey Road comparable.  Parkhill deducted the park area from the subject
    and the proposed park and school sites from the comparables.  The
Municipal
    Act
provides for municipalities to require a developer to transfer a certain
    percentage of land for parks and schools, or to pay monies in lieu of the
    land.  We do not see any reason to disagree with Davies' approach of deducting
    only the unusual features of the properties that could not be developed.
    The parks and school dedication provisions for all development land are negotiated
    between the developer and municipality under the same statutory and bylaw
    framework.

[63]
    In justifying the adjustment for location, Parkhill analysed a wider range
    of lot sales than Davies. We agree with his conclusion that there is no reason
    to make an adjustment for location between the subject property and developments
    in south Campbell River.  Similarly, we agree with Parkhill's reasons for
    making a 5% zoning adjustment.  We disagree with Davies' treatment of the
    adjustments in separate stages, which has the effect of compounding the adjustments.
    After the time adjustment is made, the other adjustments should be applied
    concurrently.

[64]
    There was a significant discrepancy between the two appraisers with respect
    to the cost of off-site services for the Hilchey Road comparable, the primary
    sale relied on by Parkhill.  Davies used $1,215,000 while Parkhill used $567,000.
    The actual costs appear to have been approximately $520,000.  There was not
    much support for the $1,215,000 figure, although it appears that potential
    costs of this magnitude had been a possibility at some point during the negotiations.
    Although the knowledge of the purchaser at the date of purchase is relevant,
    in this case we do not have sufficient evidence of the purchaser's expectations
    at the time of purchase to accept the higher amount.  While developers have
    to consider various risks in determining the price they are willing to pay
    for a property, we do not accept that they always estimate their price on
    the most pessimistic assumptions.  We prefer Parkhill's figure for off-site
    servicing as being closer to the actual costs.  Applying Parkhill's figure
    for the off site servicing to Davies' analysis, the final value for the Hilchey
    Road property with this correction only is approximately $34,000 rather than
    $43,416 per acre.

...

[67]
    After considering all of the evidence, we find Parkhill's analysis to be the
    superior of the two appraisals: it is well researched and supported by the
    data.  We do, however, accept Davies' use of a developable area to include
    allowances for parks and schools. Parkhill's final adjusted price for the
    Hilchey Road property is $31,382 per acre for 67.32 developable acres. If
    this is recalculated using a developable area of 72.57 acres, which includes
    the park but excludes the detention pond, the final adjusted price for the
    Hilchey Road property is just over $29,000.  If we add Parkhill's estimate
    for the contribution of dedicated greenways we conclude a value for the subject
    property before the taking using the Direct Comparison Approach of $30,000
    per acre for 187 acres, or $5,610,000.  We note that this value is supported
    by the adjusted per acre value for the other two selected comparables, especially
    the Galerno Road property.  The value per acre for the Island Highway property
    is somewhat lower, perhaps because of the uncertainty surrounding potential
    development at the time of the sale.

...

[77]
    There were two significant differences in the method of determining costs
    of development.  Parkhill's layout utilized a higher percentage of multi-family
    housing than Davies' plan, requiring less road construction.  Davies applied
    a per unit development cost charge ("DCC") to all 864 units, while
    Parkhill contended that the multiple family lots only generated a single DCC
    prior to being built out.  Davies'
before
value by the Development
    Approach was $7,810,000; Parkhill concluded $5,485,000.

...

[91]
    With respect to other aspects of the
before
valuation, we accept Parkhill's
    analysis for the same reasons as in his
after
scenario.  We find the
    appropriate
before
value by the Development Approach to be $5,840,000.

[16]

In
    discussing the after taking value the Board said:

[79]
    Based on Plan B and the resulting development costs, Davies concluded an
after
value of $4,720,000.  However, he offered an alternate calculation based on
    Lanarc's Plan D, which resulted in an
after
value of $5,845,000.  Taking
    the mid point of the values indicated by the two different project schemes,
    Davies came to a final conclusion of $5,200,000 for the
after
value
    by the Development Approach.

[80]
    Parkhill concluded an
after
value for the subject lands of $4,220,000.

...

[87]
    We have accepted Parkhill's valuation on these main points in the
after
scenario.  In general, we prefer his evidence for this scenario and thus,
    we find the
after
value of the property to be as the concluded: $4,220,000.

[17]

In
    the result, the Expropriation Board concluded:

[94]
    From the Direct Comparison Approach we have found the
before
value
    of the subject property to be $5,610,000.  Using the Development Approach
    we have concluded the
before
value to be $5,840,000.  We have decided
    that more weight should be given to the Direct Comparison Approach.  We acknowledge
    that there are some weaknesses in the comparable sales: the three most appropriate
    sales are much smaller than the subject property and there has been some disagreement
    with respect to the cost for off-site services on the Hilchey Road sale.
    However, we accept Parkhill's analysis of these factors as described above.
We conclude a
before
value of the subject property of $5,700,000.

[95]
Using the "before and after" method, the difference between our
    value conclusions for the
before
value of $5,700,000 and the
after
value of $4,220,000 is $1,480,000. The board finds this amount to represent
    both the market value of the land taken together with the reduction in the
    market value of the remaining land.
The compensation amount of $1,480,000
    exceeds the minimum value calculation for the land taken as set out in section
    40(3) of the
Act
.

(Emphasis added.)

[18]

The
    appellant contends that these passages, in particular para. 64, demonstrate
    that the Expropriation Compensation Board used information only available
    long after the sale of the best comparable property, and thereby demonstrate
    error.  It says that the effect of referring to after acquired information
    was to decrease the value per acre of the property by approximately $9,500,
    or a total of approximately $1.5 million.  They contend that this error became
    determinative of the value of the land taken because the Board gave more weight
    in determining the before taking value to the comparison approach but used
    a different method which did not incorporate this error for the after taking
    value.  It says that the result was a comparison of apples and oranges, producing
    inadequate compensation.

[19]

The
    issue centers on the adjustment made by the Expropriation Compensation Board
    to the sale price of the Hilchey Road property.  As evident in paras. 62-67
    quoted above, that price was adjusted by the Board for the effects of time,
    property size and off-site costs that were required to be expended by the
    developer of that property.  In particular, the owner of the Hilchey Road
    property was able, because of a municipal bylaw, to require financial contribution
    by other property owners, thereby effectively lowering its cost of the property
    by nearly $9,500 per acre, from $43,416 per acre to $34,000 per acre.  The
    appellant contends that a purchaser would not have known it could recover
    some of its costs, and must be found willing to pay the entire purchase price
    without adjustment for contributions from others, i.e. that the property had
    a market value to a purchaser of the entire purchase price amount.  The information
    that the purchaser recovered some costs from others was referred to by Sequoia
    Springs as "hindsight" evidence relied upon in error by the Expropriation
    Compensation Board.

[20]

The
    Expropriation Compensation Board, by comparing the subject property to the
    Hilchey Road property which it valued at $34,000 per acre, assessed the subject
    property at $30,000 per acre or $5,610,000 for the entire parcel.  Sequoia
    Springs contends that based on a higher amount for the Hilchey Road property,
    the subject property should have been valued at $39,416 per acre, or $7,290,000.
    It takes no issue with the Board's finding that the after taking value was
    $4,220,000 for the two remnants parcels.

[21]

So
    the question for this Court is whether it was reasonable for the Expropriation
    Compensation Board to consider that a purchaser buying the Hilchey Road property
    would not have estimated the price on, in its words, "the most pessimistic
    assumptions".  In other words, was it reasonable on the evidence for
    the Expropriation Compensation Board to conclude that it should adjust the
    price of the Hilchey Road property for possible contributions from others
    to its off-site expenses, such receipt of monies effectively lowering the
    actual cost to the purchaser of the property?

[22]

Although
    Sequoia Springs vigorously contends that the Expropriation Compensation Board
    demonstrated error in considering events that would mitigate a purchase price,
    in my view that is not so, provided that it is reasonable on the evidence
    to conclude both that some consideration would have been given by parties
    to a transaction to the possibility of recovery and that the possibility would
    be reflected in the purchase price.  Where the evidence establishes that a
    purchaser could expect such receipts to mitigate its cost, that contingency
    should be reflected in the decision, consistent with the evidence that was
    accepted.

[23]

Although
    Sequoia Springs says that the off-site contribution to costs was an unexpected
    windfall to the Hilchey Road purchaser, there was, in my view, sufficient
    evidence to support the Board's conclusion that a purchaser would not make
    the most pessimistic assumption.  This included evidence that in addition
    to off-site cost sharing in the Hilchey Road property, there was off-site
    cost sharing in a development between 1992 and 1995 on another parcel of land
    used as a comparable property (Galerno Road frontage) and evidence that Sequoia
    Springs itself contemplated some off-site cost sharing in its development
    proposal (the pedestrian overpass).  A valuation of the subject property performed
    for Sequoia Springs by the same appraiser used in the subject proceedings,
    for purposes of valuing land to support a gift of space to the public, used
    a lower off-site costs figure ($166,284) than used in the report prepared
    for these proceedings ($1,215,000).  And an excerpt in evidence from an earlier
    appraisal put the off-site cost adjustment for Hilchey Road at $405,000.

[24]

In
    light of the evidence before the Board and the evidence of the nature of the
    off-site costs required for development of the Hilchey Road property and their
    benefit to other property owners, it was not unreasonable, in my view, to
    conclude that a purchaser would not assume the most pessimistic view of its
    burden on off-site costs.  The Expropriation Compensation Board modestly increased
    the cost of off-site improvements related to the Hilchey Road property, although
    not to the level of most pessimistic.  In my view, it was within the exercise
    of its specialized mandate in doing so.

[25]

I
    further note that the single comparable of Hilchey Road, while influential,
    was not the only basis for the Board's before taking valuation.  The Expropriation
    Compensation Board also considered the evidence of before value based on a
    development approach.  In doing so, it accepted a value closer to that presented
    by the expropriating authority than that presented by Sequoia Springs.  That
    was, in my view, within the ambit of its discretion.  It is trite to observe
    that the task assumed by the Expropriation Compensation Board is not susceptible
    to precise calculation and is, as the word assessment connotes, not application
    of science.

[26]

I
    conclude, therefore, that the alleged error in valuing the market value of
    land taken and diminution in value of the remaining lands is not established.

Issue 2  Disturbance Damages and Work Prior to the           Taking

[27]

This
    is an issue both on the appeal and the cross appeal.

[28]

Sequoia
    Springs was awarded $10,000 for costs thrown away in the development work
    of the project, $65,000 for costs thrown away on a sewer extension and $125,000
    as damages for delay.  Sequoia Springs contends that the sum of $10,000 is
    inadequate compensation for costs thrown away, and advocates, as it did before
    the Expropriation Compensation Board, that these damages measure over $2,000,000.
    It asks that the issue be remitted to the Board to hear additional evidence
    on the measure of damages and, in any event, to assess damages for equipment
    rental in work upon the property for residential golf course development,
    labour to operate the equipment, expenses for materials such as gravel, engineering
    costs, costs of a consultant and compensation for the owner's time spent on
    the unfruitful project.

[29]

MoTH
    contends, as it did below, that the expenditure of funds on the lands taken,
    and in respect of work on the remnant lands which was of no value once the
    residential golf course project became impractical, was not proven.  In the
    appeal, the respondent says that the amount of $10,000 should not be increased
    and in its cross appeal, contends that the award of $10,000 is in error.

[30]

The
    Expropriation Compensation Board referred to ss. 34 and 40 of the
Act
,
    noting that s. 40 provides for compensation "for losses related to the
    construction or use of the works for which the land was acquired, as well
    as for losses related to the taking".  It described the claim and the
    issues in these terms:

[98]
    A number of expenses and losses claimed by Sequoia Springs predate the taking
    on March 31, 1995.  These include work done on the subject property which
    the claimant says were thrown away on golf course development that could not
    proceed because of the taking. ...

[99]
    MoTH takes the position that none of the costs and losses incurred prior to
    the taking can be compensated under either section 34 or 40. It submits that
    the proper interpretation of these sections is that costs that have arisen
    before the acquisition cannot be directly attributable to the disturbance
    of leaving the land nor can they be directly attributable to the taking.
    They also can not result from the construction of the highway. ...

[101]
    ... in our opinion, if disturbance damages or business losses are otherwise
    recoverable, the fact that they occurred before the taking does not preclude
    their being awarded.

[102]
    Sequoia Springs claims approximately $2,370,000 for costs thrown away.  The
    basis for the claim is that the residential golf course development was rendered
    impractical by the highway.  As a result, all the work and expenses incurred
    in the preparation of this development should be recoverable. ...

[107]
    The threshold question is whether the abandonment of the golf course development
    can be attributed at all to the acquisition for the highway.  If it cannot,
    then all the relevant disturbance damages claimed by Sequoia Springs must
    be disallowed, and it becomes unnecessary to consider individual categories
    of those damages on their own merits.

...

[109]
    In this case, the fact that the highway raised a serious hurdle for golf course
    extension means that we are prepared to accept that Sequoia Springs has met
    the threshold test for claiming disturbance damages that were wasted on golf
    course development, even if there were other reasons that contributed to the
    golf course being abandoned.  We will not reject any and all costs thrown
    away on the golf course out of hand because the highway may not be the sole
    reason that the golf course was abandoned.

[31]

The
    Expropriation Compensation Board then addressed the particulars of the claim:

[113]
    Sequoia Springs' claim for wasted land preparation work on the subject property
    appears to cover essentially all of its development expenses between its acquisition
    of the property in 1993 and the opening of the highway in 1997.  The large
    claim for equipment rentals consisted, in fact, of amounts recorded as paid
    to another of Brown's companies, which owned the earthmoving equipment.  Sequoia
    also claimed the wages and benefits paid to the operators of the equipment
    over the same period.  Finally it had accumulated some 200 invoices from its
    books for the period which Brown said were related to the development.

[114]
    The difficulty with all of this evidence was that there was little or nothing
    to show why the expenses should be considered disturbance damages under section
    34 or business losses under section 40.  The question for the board is not
    whether the expenses were incurred (the board has no reason to doubt that
    they were); rather it is whether they constitute reasonable financial losses
    which are directly attributable to the taking, to the highway, or to the disturbance
    caused by the taking.  If they were expenses that Sequoia Springs might have
    incurred in any event for purposes other than golf course development, then
    they ought not to be chargeable to MoTH.  Given that any development of the
    property would have involved clearing, fill, compacting, and grading, the
    board has to have some basis for deciding which expenses were clearly wasted,
    and which were not.  Evidence on which the board could make such distinctions
    was simply not provided.

[115]
    We accept that Brown intended to put a golf course on the subject at some
    point.  The issue is how much of the money that Sequoia Springs spent on developing
    the subject property, including development of a golf course, was, in the
    end, thrown away because of the highway.  With respect to work on golf course
    construction, there were only two very schematic and dissimilar drawings before
    February 1995, by which date most of the work claimed for golf course development
    was complete. There were no contemporary documents or plans that showed in
    any detail what was done or what was planned for any golf course residential
    development on the subject.  The only evidence we had was Brown's testimony
    describing two or three locations where he said work was done developing a
    particular fairway.  We have no evidence identifying specific work or a specific
    time frame for the development of these proposed fairways.  Instead, Sequoia
    Springs has claimed what seems to be all of the development work on the property
    until mid 1995 as costs thrown away on the golf course.  We note that the
    highway route was certain from May 1994.  Without more concrete evidence,
    we do not believe that Brown would have carried on with work on the subject
    for the whole of the following year if that work would have no value because
    of the highway.  Sometime in the spring of 1995 Brown wrote on a draft copy
    of a Highland Engineering report about the impact of the highway "Would
    we not be better off to go for fill and cuts rather than overpass as far as
    return on investment".  We found Brown's evidence with respect to the
    extent of the development work on the golf course vague.  Stephens of Highland
    Engineering agreed that, in late 1994, 60,000 to 100,000 cubic metres of sand
    removed from the right of way was being used as structural fill for roads
    and housing, not for golf course fairways.  None of Highland Engineering's
    invoices in evidence for 1994 or 1995 refers to work on the golf course.
    In re-examination, Stephens stated that during this period he was not retained
    for surveys for a golf course on the subject property, but for physical development
    work on the property.  Thus, we do not have any evidence to link any development
    costs on the property specifically to a golf course.  Further, after considering
    the evidence that we do have, it appears to us that there is no indication
    that any of these claimed costs would have been avoided if there had been
    no highway.

[32]

After
    further discussion the Board concluded as to equipment rentals, operation
    of equipment and invoices said to relate to the development:

[118]
    The onus is on the claimant to prove its damages. Unfortunately it has failed
    to prove that any of these expenses would fit within sections 34 or 40 of
    the
Act
.

[33]

On
    the claim for equipment and materials relating to removal of timber and sand,
    the Board noted that the value of those materials had not been disclosed and
    denied the claim.  It awarded $10,000 only for compensation for the salary
    of a consultant, the equivalent of about two months' salary, and it denied
    the claim for compensation for the principal of Sequoia Springs, holding:

[127]
    ... In this case there is no evidence of any loss to Sequoia Springs as a
    result of Brown's time spent on golf course development.  In any event, we
    note that there was no evidence of Brown's time spent in any development work
    that was thrown away.

[34]

In
    conclusion on costs thrown away the Board held:

[129]
    We have only awarded $10,000 for costs thrown away.  Although we were given
    voluminous invoices for what appears to be most, if not all, of the development
    work on the subject property between 1994 and 1997, there was effectively
    no effort to show causation between any of the invoices and the taking or
    the highway.

[35]

In
    Sequoia Springs' submission, the finding that golf course construction had
    commenced and that the golf course construction is no longer practical is
    a finding of loss as it related to all the work done on the remnants and on
    land now under the highway.  It relies upon
B & A Bobcat and Excavating
    Ltd. v. Sangha
(1999), 43 C.L.R. (2d) 167 (C.A.); 1999 BCCA 49; and
B.C. Hydro & Power Authority v. Marathon Realty Co.
(1992),
    89 D.L.R. (4th) 419 (B.C.C.A.), and says that the Board must quantify the
    loss, difficult as it is to do so.

[36]

Sequoia
    Springs contends there was ample evidence that work had been undertaken on
    land now under the highway right of way, including a document from MoTH saying
    that the area of "the alignment had been extensively cleared in preparation
    for Mr. Brown's development".  It says, too, that work on the remnants
    was established and points to photographs showing fairways and tee areas obliterated,
    submitting that work on the subdivision was effectively wasted because the
    subdivision has not proceeded.  In its submission, the Board erred in suggesting
    that proof was required that costs would have been avoided had there been
    no highway, observing that its position was and is that the costs would still
    have been incurred, but would not have been thrown away but for the expropriation.

[37]

MoTH
    contends that the costs thrown away issue concerns only an assessment of the
    evidence and thus is an issue of fact.  They refer to the high onus on the
    appellant on a factual issue and say that the onus has not been met in this
    case.  They say further in the cross appeal that the amount of $10,000 should
    not have been awarded because it is double recovery, the highest and best
    use being other than a residential golf course development.

[38]

This
    issue should be seen, in my view, in two parts, by considering the claim for
    costs thrown away on the lands taken, and the claim for costs said to be thrown
    away on the lands still owned by Sequoia Springs.  In case of the lands taken,
    any expenses incurred by Sequoia Springs on lands taken are surely costs thrown
    away (apart from the issue of double recovery which I address below).  In
    the case of the remnant parcels, the question is whether the costs are indeed
    thrown away, that is, whether it is established that the monies spent are
    without present benefit.

[39]

Most
    of the claim for costs thrown away related to the remnant lands.  The Expropriation
    Compensation Board concluded that monies spent on the remaining lands were
    not proven to be lost, observing that any development would have required
    clearing, fill, compacting and grading.

[40]

In
    my view, this conclusion is not unreasonable.  Despite able submissions on
    behalf of Sequoia Springs, the conclusion of the Expropriation Compensation
    Board that these expenses, for the various reasons given, are not established
    losses is not a decision with which this Court, in my view, should interfere.

[41]

I
    have come to a different conclusion, however, on those costs expended on the
    lands taken.

[42]

The
    Expropriation Compensation Board did not address, expressly, costs incurred
    on the lands taken.  However, from the photographs in evidence and review
    of the path of the highway right of way, it is, I consider, clear that some
    work had been done by Sequoia Springs on the land that was taken.  Disregarding
    for the moment the issue of double recovery, Sequoia Springs is entitled to
    be paid for expenses incurred on the lands taken as reasonable business losses
    caused by the taking.

[43]

Although
    it may be difficult to quantify that loss, this is no reason to deny the claim
    in its entirety.  In
B.C. Hydro and Power Authority
,
supra
,
    Mr. Justice Seaton for this Court held at p. 424:

This
    is not a case of there not being proof of a loss.  There is proof of a loss
    but it is one that is difficult to quantify.   The court has an obligation
    to do so, keeping in mind that the onus is on the plaintiff.   Reference is
    often made to Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), where it is said
    that if a loss has been established and the quantum is not capable of specific
    proof it is not only permissible but necessary for the trial judge to do the
    best he can.

[44]

The
    principle of
B.C. Hydro and Power Authority
, in my view, is
    applicable to expropriation, to the effect that upon proof of a reasonable
    business loss, some award must be made in compensation.

[45]

I
    turn now to the cross appeal.  MoTH contends that the award of $10,000 is
    in error because it represents double compensation, because the expense was
    incurred prior to the expropriation and does not fit within ss. 34 and 40,
    and because it was not proved that the expenses were incurred.  I would give
    no effect to the latter submission as it challenges a conclusion of fact which,
    for reasons expressed earlier as to other factual matters, is not a matter
    with which this Court should interfere where, as here, there is evidence to
    support the conclusion.

[46]

I
    turn to the question of double compensation.  The respondent contends that
    the Expropriation Compensation Board found that the highest and best use for
    purposes of compensation for the partial taking was as "a residential
    development with single and multi-family sites, with substantial green spaces,
    to be phased in over a number of years".  It says this is inconsistent
    with its conclusion that the highest and best use of the subject could include
    a residential golf course development.  It refers to
Horn v. Sunderland
    Corporation
, [1941] 2 K.B. 26 (C.A.) and
Vision Homes Ltd. v.
Nanaimo (City)
(1994), 54 L.C.R. 103 (B.C.E.C.B.), affirmed 59 L.C.R. 106 (B.C.C.A.).
    In essence, MoTH says that compensation for the taking was based upon a more
    valuable use than residential golf course development, and thus damages arising
    from costs thrown away on golf course development work are not recoverable.

[47]

In
    my view this submission cannot succeed.  The Board concluded that the highest
    and best use was as:

...
    a residential development with single and multi-family sites with substantial
    park and green space, to be phased in over a number of years.

It
    also held at para. 111:

...
    In any event, in our opinion, comprehensive development with mixed used, upon
    approval for rezoning and subdivision, is a general enough use that it might
    include mixed housing with greenways or parks or a golf course.  This would
    mean the highest and best use at the date of acquisition is the same as the
    existing use.

This
    conclusion is a finding of fact and should not be lightly disturbed.  Unless
    that finding of fact is disturbed by this Court, the rule against double recovery
    referred to in the cases and legislated in s. 31 has no application.  I would
    not interfere with the finding of highest and best use, it being well founded
    in the evidence of the nature of the residential development planned before
    the expropriation.  It follows that I would not accede to the contention that
    the award of $10,000 or other disturbance damages for work thrown away represents
    double recovery.

[48]

MoTH
    also argues that costs incurred before the expropriation are not recoverable
    as disturbance damages under ss. 34 and 40.

[49]

Section
    40(1) provides:

40
(1) ... if part of the land of an owner is expropriated, he or she is entitled
    to compensation for

...

(b)
    ... to the extent they are directly attributable to the taking ...:

(ii)
    reasonable personal and business losses.

[50]

Section
    31 provides:

31
(1) .. the compensation payable is the greater
    of

(a)
    the market value of the land based on its use at the date of expropriation
    plus reasonable damages under section 34, and

(b)
    the market value of the land based on its highest and best use at the date
    of expropriation.

[51]

Section
    34 provides:

34
(1) An owner whose land is expropriated is entitled to disturbance damages
    consisting of the following:

(a)
    reasonable costs, expenses and financial losses that are directly attributable
    to the disturbance caused to the owner by the expropriation;

[52]

The
    claim for expenses thrown away, in this case, is a claim for expenses that
    have no benefit to the land owner because of the taking.  In this case, unlike
    the expenses incurred on the lands retained which may have benefit to Sequoia
    Springs and thus not represent loss, the monies spent on salary for advice
    as to the golf course (the $10,000 awarded), now abandoned because of the
    taking, and monies spent improving the land now under the highway, will bring
    no benefit to Sequoia Springs.  They are, in my view, disturbance damages
    under s. 34 or business losses under s. 40(1).  Their characterization as
    a loss is consistent with the reasoning of this Court in
Patterson v.
    British Columbia (Ministry of Transportation and Highways)
(1997),
    62 L.C.R. 89 (B.C.C.A.), see also
Bayview Builder's Supply (1972) Ltd.
    v. British Columbia (Ministry of Transportation and Highways)
, 1999
    BCCA 144.  In other words, monies proved to have been spent to improve property
    under development for its highest and best use, to the extent they are thrown
    away by the expropriation, represent recoverable loss.

[53]

Lastly
    on this issue is the question whether costs incurred prior to the actual taking
    but after knowledge of the impending expropriation, are recoverable.  That
    is, are the losses reasonable?

[54]

The
    Expropriation Compensation Board concluded that the salary of $10,000 was
    a reasonable expense that was recoverable.  I would not interfere with that
    finding.

[55]

To
    the extent this issue may be raised concerning monies spent on the expropriated
    land, and I observe the findings of fact have not been made which would reveal
    the timing of such work, I would observe that work proven to have been done
    in furtherance of the existing use, found to be the highest and best, should
    be compensable. Until the taking occurred, Sequoia Springs was the owner entitled
    to advance the property's intended use, and the taking, as probable as the
    parties may have believed it to be, was until the date of taking no more than
    a plan that could be scuppered by a change within the expropriating authority.

[56]

It
    follows that I would remit the matter of costs thrown away to the Expropriation
    Compensation Board for assessment of damages for business loss relating to
    the lands taken.  On this, Sequoia Springs has asked for an order that it
    be allowed to adduce further evidence.  That is a question, in my view, for
    the Board to decide.

Issue 3  Costs

[57]

MoTH
    cross appeals the order for costs, saying that because the amount awarded
    is less than 115% of that paid prior to the hearing, and because an offer
    was made in the form of a
Calderbank
letter, which was for a
    sum greater than that awarded, the Expropriation Compensation Board erred
    in awarding costs in favour of Sequoia Springs.

[58]

Section
    45 of the
Act
deals with costs:

45
...

(3)
    Subject to subsections (4) to (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.

(4)
    If the compensation awarded to an owner, other than for business losses, is
    greater than 115% of the amount paid by the expropriating authority under
    section 20 (1) and (12) or otherwise, the authority must pay
    the owner his or her costs.

(5)
    If the compensation awarded to an owner is 115% or less of the amount
    paid by the expropriating authority under section 20 (1) and (12)
    or otherwise, the board may award the owner all or part of his or her costs.

...

[59]

The
    costs issue was first decided on the premise that the award exceeded 115%
    of the advance payments.  The parties subsequently discovered that more had
    been paid than was known to the Board when it made its order for costs, bringing
    the sum awarded to 113.6% of the advance payment and under the 115% referred
    to in s. 45(4).  This made the settlement offer (the
Calderbank
letter) relevant in the eyes of MoTH and it sought to re-open the issue.
    The Board held that it would exercise its discretion to award costs in favour
    of Sequoia Springs:

[8]
    If the mistake in the advance payment is corrected then the total compensation
    awarded is only 113.6 % of the advance payment. Therefore under section 45(5)
    we have discretion with respect to costs.

...

[10]
    The issue of Calderbank settlement letters in expropriation cases was fully
    addressed by this board in
Baines v.
British Columbia (Minister of Transportation and Highways) (No 2)
(1997), 62 L.C.R. 210. The board concluded at p. 220 in that case:

a
    Calderbank letter may be one factor in assessing the reasonableness of the
    owner in pursuing his claim for compensation, keeping in mind the different
    cost principles applicable in expropriation cases.

The
    board went on to consider the range of market value put forward by the two
    appraisers. Since the settlement offer was less than the market value (plus
    agreed disturbance damages) put forward by the claimant's appraiser the board
    stated it was "unable to say that the claimant's rejection of the offer
    ... in the Calderbank letter was unreasonable".

[11]
    In the present case we note that the market valuation set out in the claimant's
    appraiser's report was $2,600,000. There were also two substantial claims
    for disturbance damages. We did not accept the market valuation nor either
    of the claims for disturbance damages as presented. In fact, in the original
    February 15, 2000 decision, we were critical of the claimant's evidence and
    assumptions on a number of points. However, after considering all the circumstances
    we conclude that there was some reasonable basis for the claimant to expect
    to obtain more than the $2,300,000 offer to settle in the Calderbank letter.
    We also note that the settlement letter was received only two working days
    before the compensation hearing was scheduled to commence. Similar to the
    board's finding in Baines we are "unable to say that the claimant's rejection
    of the offer ... in the Calderbank letter was unreasonable".

[12]
    Further, we note that Sequoia Springs achieved compensation close to the minimum
    percentage for obtaining full costs as a matter of right. Most importantly
    it is our opinion that there were justiciable issues in this case which reasonably
    warranted being brought to the board for determination. See
Daflos v.
School
    District No. 42 (Maple Ridge-Pitt Meadows)
(1999), 68 L.C.R. 167 (B.C.E.C.B.) at 222. We conclude that the claimant
    is entitled to its actual reasonable legal, appraisal, and other costs until
    June 28, 1999 and to its costs as prescribed in the
Tariff of Costs Regulation,
B.C. Reg 189/99 after that date.

[60]

Subsequent
    to the decision on costs, the Ministry and Sequoia Springs settled the costs
    issue.

[61]

In
    its cross appeal MoTH contends that the Board erred in law in awarding costs
    to Sequoia Springs.  Alternatively, it contends that the order was an unreasonable
    exercise of the Board's discretion, contending that the Board unlawfully fettered
    its discretion with respect to costs by failing to consider relevant factors,
    and that the Board failed to exercise the proper legal principles.  MoTH contends
    that the Board was obliged to give effect to the
Calderbank
letter, in the same way courts have given recognition to
Calderbank
letters.  They say that the Board erred in its consideration of the timing
    of the letter, its failure to negatively view Sequoia Springs' exaggerated
    claim, its consideration of the degree to which advance payments fell below
    115% of the advance payments, and its view that there were "justiciable
    issues".

[62]

Sequoia
    Springs contends firstly that the cost issue is moot.

[63]

In
    my view, there remains a live issue between the parties on the issue of costs,
    as I would refer the matter back for reconsideration on the question of costs
    thrown away on the taken lands.  In any case, I see this as a question which
    satisfies the criteria for hearing established in
Borowski v. Canada
    (A.G.)
, [1989] 1 S.C.R. 342.  I would not give effect to this submission.

[64]

I
    turn then to the substance of the costs issue.

[65]

On
    the premise that the error is one of law, MoTH contends that the standard
    of review is correctness.  Alternatively, if seen as an error in the exercise
    of discretion, it says the standard of review is reasonableness.  Either way,
    MoTH contends that the Board erred in the factors it did refer to and in failing
    to accede to the effect of the letter offering settlement.

[66]

Sequoia
    Springs answers that the costs issue engages the Board's exercise of discretion
    and that the order should not be disturbed unless the Board was clearly wrong
    or misdirected itself.

[67]

In
    my view the costs order engaged the discretion of the Board, and the appeal
    concerns the exercise of discretion.  In
Baker v. Canada (Minister of
    Citizenship and Immigration)
, [1999] 2 S.C.R. 817, Madam Justice L'Heureux-Dubé,
    for the Court, held that the pragmatic and functional approach to review discussed
    in
Pushpanathan
is equally applicable to discretionary decisions,
    concluding at para. 56:

56
    Incorporating judicial review of decisions that involve considerable discretion
    into the pragmatic and functional analysis for errors of law should not be
    seen as reducing the level of deference given to decisions of a highly discretionary
    nature.  In fact, deferential standards of review may give substantial
    leeway to the discretionary decision-maker in determining the "proper
    purposes" or "relevant considerations" involved in making a
    given determination.  The pragmatic and functional approach can
    take into account the fact that the more discretion that is left to a decision-maker,
    the more reluctant courts should be to interfere with the manner in which
    decision-makers have made choices among various options.  However,
    though discretionary decisions will generally be given considerable respect,
    that discretion must be exercised in accordance with the boundaries imposed
    in the statute, the principles of the rule of law, the principles of administrative
    law, the fundamental values of Canadian society, and the principles of the
Charter
.

[68]

In
    determining the appropriate stance on reviewing the order, a useful point
    of reference is this Court's review of cost orders made by a court of law.
    It is frequently said that appellate courts accord considerable deference
    to an order of costs, looking only to see that the order fits within the
Rules
    of Court
and that the discretion has been exercised judicially to
    avoid injustice, bearing in mind factors articulated over the years.

[69]

In
    my view, a similar high level of deference to the Board's exercise of its
    discretion is appropriate given that the discretion established in s. 45(5)
    is broad, that the issue impacts upon practice before the Board and that the
    issue engages policy considerations underlying expropriation compensation
    in this province.

[70]

I
    turn then to the specific complaints levelled at the decision.  First, it
    is said, that the Board erred in failing to give effect, as a court might
    have done, to a
Calderbank
letter [so called in reference to
Calderbank v. Calderbank
, [1975] 3 All E.R. 333].

[71]

MoTH
    has referred us to the English authorities developing the law on such letters,
    and
Martel v. Peetoom
(1996), 27 B.C.L.R. (3d) 160 (B.C.S.C.)
    describing the development of the law of costs in British Columbia as it is
    affected by offers of settlement.  In short,
Calderbank
letters
    were given effect in civil litigation in the absence of a rule adequately
    recognizing efforts to settle in an order of costs.  They continue to have
    effect in British Columbia, although their application is now somewhat restricted
    because of changes to the
Rules of Court
.

[72]

MoTH
    also referred to
Director of Buildings and Lands v. Shun Fung Ironworks
    Limited
, [1995] 2 A.C. 111 (P.C.) wherein the court held that a
Calderbank
letter should be given effect in a proceeding for compensation for lands that
    reverted to the Crown (effectively an expropriation).  I would not disagree
    that an offer of settlement contained in a
Calderbank
style
    letter may be given weight by the Expropriation Compensation Board.  However,
    to the extent MoTH urges application of the reasoning in that case to the
Act
at hand and these circumstances, I would not agree that
    the existence of the
Calderbank
letter is, by itself, determinative
    of the costs issue.

[73]

The
    Board, in this case, referred to its prior decision in
Baines v.
British
    Columbia (Minister of Transportation and Highways) (No. 2)
(1997), 62 L.C.R. 210:

. .
    . a Calderbank letter may be one factor in assessing the reasonableness of
    the owner in pursuing his claim for compensation ...

[74]

In
    my view, this approach is one within the Board's discretion to take.  The
Expropriation Act
is a compensatory scheme.  Its first premise
    for compensation is that a claimant will be made whole.  It includes a provision
    for advance payments, and for reimbursement of actual reasonable legal, appraisal
    and other costs where the award is 115% or more of the advance payments.
    In this context, the Board concluded that a letter offering settlement is
    not determinative.  It is obviously, however, a factor to be considered in
    determining whether all or a portion of costs will be awarded to a person
    achieving less than 115% of the advance payments.

[75]

MoTH
    contends that the Board's conclusion that late timing made the offer less
    worthy of weight, is in error.  I do not agree.  In the context of impending
    proceedings and the
Act's
requirement of early advance payments,
    it was fair to call the offer late and to give it less weight in the balancing
    process.  Likewise, it was appropriate to consider the extent to which advance
    payments fell short of the award, the strength of the complainant's case and
    the reasonableness of the claim in the context of the offer.

[76]

MoTH
    further contends that the reference to "justiciable issues" is in
    error, imposing a standard which will rarely be missed by a claimant.  The
    entire passage from the Supplementary Reasons on the issue of costs read:

Most
    importantly it is our opinion that there were justiciable issues in this case
    which reasonably warranted being brought to the board for determination.

MOTH's
    submission, in my view, misses the import of the qualifying words used by
    the Board: "which reasonably warranted being brought to the Board for
    determination".

[77]

I
    conclude that the Board's decision displays an appropriate exercise of its
    broad discretion awarding costs provided by s. 45(5) in the context of the
Act
as a whole.

[78]

It
    follows I would dismiss the cross appeal.

Summary

[79]

I
    would allow the appeal to the extent only of remitting for assessment the
    issue of costs thrown away on the taken lands.  I would dismiss the cross-appeal.

The Honourable Madam Justice Saunders

I
    AGREE:

The
    Honourable Mr. Justice Esson

I
    AGREE:

The
    Honourable Mr. Justice Donald

CORRECTION:
    January 20, 2003

The
    docket number noted on the front page of the above noted judgment should include
    the addition of docket number CA028227 directly beneath CA026942.


Citation:

R. v. Homer

Date:
20030106

2003 BCCA 15

Docket:

CA030119

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Madam Justice Huddart

January 6, 2003

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

LORNA HOMER

APPELLANT

P.E. Briggs

appearing
  for the Appellant

J. DeWitt-Van Oosten

appearing
  for the (Crown) Respondent

[1]

MACKENZIE, J.A.
:
  This is an appeal from the sentence of 3 years imprisonment imposed on the
  appellant Lorna Homer following her plea of guilty to a charge of impaired
  driving causing death.  Seventeen year old Aimee Labatt was struck by a van
  driven by the appellant in Port Hardy B.C. at about 9:30 p.m. on the evening
  of 8 December 2000.  Ms. Labatt never regained
  consciousness and she died several days later in a Vancouver hospital.

[2]

Aimee Labatt was walking home from work and was
  within a block of her home on Duval Avenue when the accident occurred.  The
  appellant was proceeding westbound up Park Drive when she lost
  control of her vehicle.  It skidded sideways across Duval, then went onto a
  lawn and came to rest against a hedge.  At some point in the skid the vehicle
  struck Ms. Labatt and her body was either dragged or thrown onto the lawn.  She
  was struck by the side of the vehicle at the pillar in front of the drivers
  side door.  She suffered skull fractures and a closed head injury.

[3]

Park Avenue has an 8 to
  9 percent uphill grade for westbound traffic in the block before Duval and
  a 50 kmh speed limit.  The speed of the appellant's vehicle could not be determined
  but accident reconstruction indicated that the vehicle had been traveling
  sideways uphill and skidding for almost a block.  The tire marks indicated that
  the van was under acceleration the whole time and a resident of a nearby house
  heard the engine racing.  The appellant said in her statement to police that
  she tried to brake but the sentencing judge concluded that she did not realize
  that she still had her foot on the accelerator and not on the brake.

[4]

The appellants breathalyzer readings following
  the accident about two hours later were 230 and 224 milligrams.  She told the
  police that she had taken three Tylenol 3s and consumed 9 or 10 beers at the
  nearby residence of a friend over the course of 3 hours before the accident.
  She returned home and then decided to go for a drive, apparently without any
  particular destination in mind, and was on Park Drive when she lost control
  of the vehicle.  Road conditions were poor.
  Rain and hail had fallen previously leaving a rough slippery road surface.  However,
  drivers of other vehicles attending the scene of the accident did not have
  difficulty keeping their vehicles under control.

[5]

Ms. Labatt was a recent high school graduate who
  was working in a food store to earn money to further her education.  She lived
  with her family in Port Hardy and frequently walked back and forth to work.  On
  this occasion she left work to walk home about 15 minutes before her father and
  stepmother stopped by the store to offer her a ride home.  This became a
  terrible if only that has haunted the family since. The parents driving home
  were the first on the scene of the accident.  Her father saw a body lying on
  the lawn, went to give assistance, and discovered to his horror that it was
  his daughter.

[6]

The family members have been emotionally
  shattered and the community of Port Hardy shocked by this senseless fatality.  Her
  father suffers from a post traumatic stress disorder and the familys life has
  been disrupted.  They have sold the family house and moved to another location
  because of the pain of association with the accident scene.

[7]

The appellant was 37 at the time of the
  accident.  She was married with 3 children, ages 14, 12 and 8.  Her husband
  committed suicide for unrelated reasons shortly after the accident.  She
  suffers from back pain and takes Tylenol 3, with codeine, from 3 to 6 tablets at
  a time, to relieve the pain.  The appellant is of aboriginal ancestry but she
  was adopted by a non-aboriginal family and had a conventional family upbringing
  in quite remote locations on the B.C. coast.  Her adoptive father died some
  years ago but she maintains good contact with her mother who is now 80.  She
  knows the identity of her natural family but she has not maintained contact
  with them.

[8]

The appellant has no prior criminal record.

[9]

The sentencing judge referred to the principles
  of sentencing set out in s. 718 of the
Criminal Code
.  He
  emphasized denunciation and deterrence, guided by observations of this Court
  in
R. v. Johnson
, [1996] B.C.J. No. 2508(C.A.).  In
Johnson
, Ryan J.A. referred to
R. v.
  C.A.M.,
[1996] 1 S.C.R. 500, where Lamer C.J., stated (at p 558-9):

The object of denunciation mandates that a
  sentence should also communicate societys condemnation of that particular
    offenders conduct.  In short, a sentence with a denunciatory element represents
    a symbolic, collective statement that the offenders conduct should be punished
  for encroaching on our societys basic code of moral values as enshrined within
  our substantive criminal law.

Ryan J.A.
  added:

Drinking driving causing death or bodily harm
  offences are senseless crimes because they are so easily avoided and at the
  same time they are so easily committed by ordinary citizens.  They are unlike
  any other crimes in the sense that nothing much can be offered to justify
  driving drunk.  Crimes of theft may be motivated by poverty, crimes of assault
  may be motivated by fear, but what excuse can be offered for driving drunk,
  except that alcohol allowed the offender to lose all sense of judgment?  It is
  for this reason that communities rightfully express outrage when victims are
  killed or injured as a result of such conduct.  It is for this reason that
  both deterrence and denunciation are legitimate objectives to pursue for this
  type
  of offence.

[10]

In
    my respectful view, the sentencing judge was justified in his emphasis on
    denunciation in this case.  He noted that the offence occurred in a
  small community where it was likely to have a longer effect than in larger
  communities where the collective memory would fade more quickly.  He also
  acknowledged the devastating impact on the victims family.

[11]

The
    judge concluded that imposition of a conditional sentence would bring the
    administration of justice into disrepute.  In that respect, I think
  that his conclusion is consistent with
R. v. Proulx
(2000), 140
  C.C.C.(3d) 449 (S.C.C.), where Lamer C.J., in the judgment of the Court, upheld
  a custodial 18 month sentence for dangerous driving causing death and concluded
  that impaired driving and dangerous driving may be offences for which harsh
  sentences plausibly provide general deterrence because these crimes are often
  committed by otherwise law-abiding persons.  Trial judges should be given deference
  because they are closer to their community and know better what would be
  acceptable to their community.

[12]

The standard of review on a sentence appeal was succinctly stated in
C.A.M.
(at para. 90) and repeated in
Proulx
and
Johnson
:

Put simply, absent an error in principle,
  failure to consider a relevant factor, or an overemphasis of the appropriate
  factors, a court of appeal should only intervene to vary a sentence imposed at
  trial if the sentence is demonstrably unfit.

[13]

The
    appellant submits that the sentencing judge made unreasonable findings of
    fact in the course of his reasons for sentence.  In particular, the
  appellant submits that the judge erred in concluding that the appellant had
    no remorse for her actions, that she had a substance abuse problem, and that
    she
  made no effort to seek counselling or support for her substance abuse
  problems.

[14]

The
    judge did comment that the appellant has shown no remorse.  Earlier
  in his reasons, he referred to a post- offence incident where the appellant was
  observed shaking hands with people in a bar and saying: Hello, I am Lorna
  Homer.  I killed Aimee.  Did you read about it?  It was in the paper.  The
  appellant was drunk at the time.  It is not clear what implication the
  sentencing judge took from this incident. I do not think that the incident
  necessarily supports that conclusion that the appellant was not remorseful.  It
  may have been no more than a drunkenly inept attempt to share guilt and remorse
  and seek consolation from strangers.  Her counsel at sentencing submitted that
  Ms. Homer was inhibited from expressing remorse by the hostility of Ms. Labatts
  family and her effective ostracism by the outraged community.  In my view,
  the evidence on the question of remorse was at most equivocal but I do not
  think
  that the judges reference to lack of remorse in its context was a significant
  factor in the sentence imposed.

[15]

The
    sentencing judge concluded that the appellant had a substance abuse problem
    with alcohol and perhaps a codeine dependency as well.  He
  concluded that she had failed to come to grips with these problems and, indeed,
  the pre-sentence report indicates that she does not acknowledge that she has
    these problems. I think that the bar incident does supports the conclusion
    that the
  appellant has a substance abuse problem.

[16]

This
    conclusion appears to have influenced the decision to impose a custodial
    sentence and the judge added: It is my hope that while you are
  incarcerated that much attention will be given to addressing these problems.  I
  do not think that this hope was misplaced and I think that the record, with
  allowance for the factual errors in the pre-sentence report pointed out to
  the judge by the appellants counsel, supports his conclusion that there was
  a
  problem of substance abuse that the appellant did not fully acknowledge.

[17]

The appellant submits that the sentencing judge failed to take
  account of the appellants circumstances as an aboriginal offender before
  imposing a custodial sentence, as required by s. 718.2(e) of the
Code
and
R. v. Gladue
(1999), 133 C.C.C.(3d)385(S.C.C.).  The
  sentencing judge expressed some remarks with respect to possible implications
  of s. 718.2(e) which I do not endorse and do not think it necessary to repeat.  However,
  I think he applied the correct test from
Gladue
and his
  conclusion that there were no unique background or systemic factors of the
  appellant as an aboriginal offender which may have played a part in bringing
  her before the courts was supported by the evidence before him.  I do not think
  that there was any error under this ground of appeal which would permit us
  to interfere with the sentence imposed.

[18]

There
    being no error in principle that would permit this Court to vary the sentence
    imposed, the only issues remaining are whether the sentencing
  judge overemphasized denunciation and deterrence or whether the sentence can
    be otherwise said to be demonstrably unfit.  The sentencing judge acknowledged
  that the case was a difficult one and observed that it had given him more than
  one sleepless night.  He recognized that a custodial sentence would compound
  the tragedy to the extent that the appellant would be removed from her
  children.  The appellant does not have the support of extended family who could
  step in as substitute care-givers.  His emphasis on denunciation is supported
  by the authorities and I cannot say he overemphasized it in the tragic
  circumstances of this case.  The culpability of the appellant was not as great
  as that of the offender in
Johnson
but the three year sentence
  is substantially lower than the five year sentence imposed there on each count
  of
  impaired driving causing death.  The sentence is within the range of sentences
  for similar offences.  I cannot conclude that it is otherwise an unfit sentence
  and accordingly there are no grounds for this Court to vary it.

[19]

Leave to appeal having previously been granted, I would dismiss the
  appeal.

[20]

HUDDART, J.A.
: I agree.

[21]

THACKRAY, J.A.
: I agree.

[22]

HUDDART, J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Mackenzie