



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Shuswap Lake Estates Ltd. v.
British Columbia (Transportation and Infrastructure),









2018 BCCA 6




Date: 20180105

Docket: CA44008

Between:

Shuswap Lake
Estates Ltd., Shuswap Lake Utilities Ltd. and
Shuswap Sanitation Inc.

Appellants

(Plaintiffs)

And

Her Majesty the
Queen in right of the Province of British Columbia as represented by the
Minister of Transportation and Infrastructure

Respondent

(Defendant)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Fisher




On appeal from:  An
order of the Supreme Court of British Columbia, dated September 28, 2016 (
Shuswap
Lake Estates Ltd. v. British Columbia (Transportation and Infrastructure)
, 2016
BCSC 1779, Kamloops Registry S47374).




Counsel for the Appellants:



R. Burke





Counsel for the Respondent:



P. Phan

T. Quirk





Place and Date of Hearing:



Vancouver, British
  Columbia

October 2, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 5, 2018









Written Reasons by:





The Honourable Chief Justice Bauman





Concurred in by:





The Honourable Mr. Justice Hunter

The Honourable Madam Justice Fisher

















Summary:

The appellants challenge an
order dismissing their claims for business losses as a result of a highway
improvement project. The appellants argue that the project affected lot sales
in a nearby housing development, and that they are entitled to costs to relocate
water and sewer utilities located on the highway right-of-way. Held: Appeal
dismissed. The trial judge made no palpable and overriding error in finding
that the appellants had not proven the underlying assumptions of the expert
evidence they relied upon to establish that the project caused the decline in
lot sales. Nor did the trial judge commit an error in holding that the permits
under which the appellants used the right-of-way barred the appellants claim
for utility relocation costs.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

Overview

[1]

This appeal concerns an issue of compensation for certain alleged
business losses arising out of highway improvement works in and about the Shuswap
Lake area in the provinces interior.

[2]

While the appellants complain of the trial judges treatment of the
expert evidence led below, they overlook what essentially derailed their claims
for compensation: their failure to prove causation and the terms of the permits
under which they installed certain utilities within the highway right-of-way.

[3]

I would dismiss the appeal for the reasons that follow.

Facts

[4]

The appellants  Shuswap Lake Estates Ltd. (SLEL), Shuswap Lake
Utilities Ltd. (SLUL), and Shuswap Sanitation Inc. (SSI)  are related
companies (the Shuswap Lake Companies) that own and operate a real estate
development called Shuswap Lake Estates. SLEL is a land development company.
SLUL supplies water to the various lots in the development. SSI operates a
sewer and treatment system for the development.

[5]

In 2006, the real estate market in the Shuswap Lake area was booming and
the Shuswap Lake Companies developed a new residential subdivision called the
Highlands. The first phase of the Highlands sold quickly. However, towards the
end of 2008, a global financial slowdown occurred. Only three sales contracts
were entered into in all of 2008.

[6]

On 29 September 2009, the Shuswap Lake Companies entered into a written
agreement (the Agreement) with the Province of British Columbia (the
Province) that provided for the acquisition of land owned by SLEL, as part of
a project to expand and improve the TransCanada Highway (the Project). The
purchased land included some water and sewer lines and so SLUL and SSI were
parties to the Agreement. The Agreement set out the compensation to be received
by the Shuswap Lake Companies and provided that the three companies would
retain the right to pursue a claim for business losses pursuant to the
Expropriation
Act
, R.S.B.C. 1996, c. 125 [
Act
]. The terms of the Agreement
included:

a)  The
Province acquired certain lands (the Lands) from the Shuswap Lake Companies
for the sum of $999,087 (the Purchase Price).

b)  The Shuswap
Lake Companies agreed to relocate utilities on the Lands (the Land Utilities)
and on the existing highway right-of-way (the Road Utilities). The Shuswap
Lake Companies were paid $84,180 for the cost of relocating the Land Utilities.
The estimated cost of relocating the Road Utilities was $253,432. The Shuswap
Lake Companies retained the right to claim damages in respect of costs to
relocate the Road Utilities pursuant to the
Act
.

c)  The sum of
$317,412 was held back by the Province from the Purchase Price pending
completion of the Land Utilities and Road Utilities work to the Provinces
satisfaction. The full amount of the holdback was released by the Province to
the Shuswap Lake Companies on 17 November 2010.

d)  The Shuswap
Lake Companies were paid $38,000 in respect of the cost of removing and
relocating signage.

e)  The Shuswap Lake Companies retained
the right to pursue a claim of business loss pursuant to the
Act
.

[7]

Construction of the Project commenced April 2010 and was completed August
2011.

[8]

From 1994 to 2012, SLELs real estate sales staff consisted of a sales
manager, Lois Barker, and part-time sales staff. Mrs. Barker was away from
the sales office approximately 30% to 40% of the time in 2009 while dealing
with an illness in her family. Terry Barker, Mrs. Barkers husband and the
Vice President of SLEL who is currently in charge of its operations, admitted
her absence definitely had an influence on sales. From 2012 to early 2016
SLEL hired a number of other sales managers who did not apparently have much
impact in improving SLELs sales. The sales manager SLEL hired in April of 2016
has apparently made some changes that have assisted SLEL in increasing its
sales.

[9]

In June 2012, the Shuswap Lake Companies filed a notice of civil claim.
They sought compensation for (1) business losses, (2) the costs of moving the
Road Utilities and (3) the costs of a water bypass that ensured SLULs
customers water supply was not interrupted during installation of the
utilities. During trial, the Shuswap Lake Companies abandoned their claim for
future business losses and their business loss in respect of the loss of
multi-family lot sales. Accordingly, at the conclusion of trial, the Shuswap
Lake Companies claim for business loss was limited to the loss of sales of
lots in the Highlands prior to 2016.

[10]

On 10 June 2014, the parties agreed that the Shuswap Lake Companies
claims were all settled by the Agreement, other than the claim for business
losses (which was to be decided as though the lands had been expropriated)
(the Partial Settlement Agreement).

Expert Witnesses Who Testified at Trial

[11]

The Shuswap Lake Companies called two expert witnesses in support of
their business loss claim. The first was Danny Grant, a real estate appraiser.
The trial judge admitted Mr. Grants evidence concerning the decline in
value of SLELs lot inventory as a result of the Project, but found that Mr. Grant
was not qualified to opine on the question of how many lots SLEL would have
sold but for the Project. The trial judge further found that Mr. Grants
opinion on this point usurped the function of the court.

[12]

The Shuswap Lake Companies second expert was Don Spence, a chartered
accountant and business valuator who was qualified as an expert in the field of
business valuation to opine on the business losses suffered by the appellants. Mr. Spence
valued the delay in SLELs cash flow by assuming, among other facts, that there
were 38 lot sales that would have occurred but for the Project. Mr. Spence
estimated the resulting loss was $3,960,832.

[13]

The Province called three expert witnesses. Brett Garnett, a real estate
appraiser, was qualified to provide opinion evidence regarding the
reasonableness of models used by the Shuswap Lake Companies experts to value
unsold lots. Mr. Garnett opined that the use of Shuswap-wide statistics by
the Shuswap Lake Companies experts potentially distorted their analyses and
concluded that the available market data did not support the assertion that the
decline in sales of the Highlands lots was caused by the Project. Instead, Mr. Garnett
opined that the reduced sales activity and pricing was more consistent with the
broader market slowdown following the worldwide credit crisis, the stronger
Canadian dollar, the reduction in global oil prices and the weak Alberta
economy than it was with the timing and effect of the Project. Mr. Garnett
also opined that the sale of the Highlands lots was impacted by SLELs
marketing program and pricing. Accordingly, he questioned whether the assumed
number of but for lot sales relied upon by Messrs. Spence and Grant would
have occurred.

[14]

Richard Wozny, a real estate development economist, was qualified as an
expert in pricing and timing of real estate development projects and the
financial impact of transportation and infrastructure projects on adjacent
business. Mr. Wozny assessed whether the change in access to SLELs sales
office during and after construction of the Project had an impact on SLELs
business. Mr. Wozny did not consider changes to signage or the visibility
of the sales office from the highway. Mr. Wozny noted the diminished
importance of sales offices as a result of the rise of information available on
the Internet and explained that direct access to a sales center is not a
significant driver of real estate sales. Ultimately, Mr. Wozny opined that
the Project had no detrimental effect on SLELs market share or lot sales.

[15]

Paul McEwen, an accountant and business valuator, was qualified to give
opinion evidence regarding the methodologies used and business losses
calculated by the Shuswap Lake Companies experts Messrs. Grant and Spence. Mr. McEwen
assumed (as did Mr. Spence) that 38 more lots would have sold from
2010-2015, but for the Project. Using a different discount rate than Mr. Spence,
he calculated the resulting loss was $903,000.

Decision under appeal

[16]

After outlining the background to the claim and the evidence provided by
each of the experts, the trial judge began his analysis by noting that the
Shuswap Lake Companies claims were limited to business losses to be
adjudicated as though the lands purchased by the Province under the Agreement
had been expropriated. The trial judge reproduced s. 40(1) of the
Act
and noted that no Canadian court had previously interpreted the phrase
business losses in the context of expropriation legislation. The trial judge
set out the principles governing compensation for business losses before
setting out the three heads of business loss claims at issue:

a)       loss of sales of the Highlands
lots;

b)       the costs of relocating
the Road Utilities; and

c)       the costs of installing water bypasses.

[17]

The trial judge allowed the water bypass claim, which is not subject to
this appeal.

Loss of sales of the Highlands lots

[18]

On the loss of lot sales head, the trial judge set out that the burden
fell on the Shuswap Lake Companies to prove that any loss of sales was causally
connected to the Project. The trial judge found that the Shuswap Lake Companies
failed to establish the effect of any disruption in signage on SLELs real
estate sales, describing the evidence on this point as ill-prepared, confused,
uncertain and generally incomprehensible: para. 76. While access to the
sales office may have been reconfigured, access was not lost. There was also no
evidence that the publics perception of the Project had any detrimental effect
on SLELs ability to sell lots. The trial judge concluded that the Shuswap Lake
Companies had failed to put forward any direct evidence that the Projects
construction affected SLELs business and highlighted the absence of any
evidence that more visible signage and convenient access to SLELs sales office
were relevant considerations for potential purchasers. The trial judge agreed
with the Province that the timing of lot sales is a good indication of
causation and that the evidence established that the beginning of the decline
in sales began well before the Project commenced.

[19]

The trial judge placed no reliance on the opinions of Messrs. Grant and
Spence, as the opinions were based on factual assumptions that the Shuswap Lake
Companies had failed to prove, including that lot sales would have continued
consistent with SLELs historical market share but for the Project, as well as
certain assumptions related to lot pricing: paras. 93-95. In contrast, the
trial judge found the opinions of each of the Provinces experts to be
objective, sensible andof great assistance: para. 97. In particular, he
accepted Mr. Woznys opinion regarding the lack of importance of a real
estate sales office and the fact that the Project actually improved the
infrastructure in the vicinity of SLELs sales office.

[20]

Ultimately, the trial judge concluded that the evidence fell woefully
short of establishing the requisite causal link between the decline in the Highlands
lot sales and construction of the Project: para. 98. This was a case where
loss had not been proven rather than one where loss was difficult to quantify.
The trial judge found that three factors contributed to the decline in sales:
(1) SLELs slow reaction to the decline in the real estate market caused by the
2008 credit collapse; (2) Lois Barkers departure from the sales team during
2009; and (3) the ineffectiveness of SLELs other sales staff: paras. 99-100.

The costs of relocating the Road Utilities

[21]

Turning to the Road Utilities claim, the trial judge held that there was
no contractual basis on which the Shuswap Lake Companies could recover
relocation costs. The trial judge examined Schedule C of the Agreement, and
found that the plain language of the Schedule as well as the surrounding
circumstances of the Agreement demonstrated that it was the intention of the
parties that the holdback amount of $317,412 was an estimate of the cost of
relocating both the Land Utilities and the Road Utilities. Therefore, the
Agreement did not create a collateral obligation for the Province to pay
relocation costs over and above the holdback amount. The discrepancy between
the holdback amount and the sum of the estimates for relocation costs within
the Agreement was a result of inadvertence after the parties failed to update
the holdback amount when new estimates for relocation costs were handwritten
into the Agreement. The trial judge concluded that, in any event, the Shuswap
Lake Companies bargained away their right to pursue a contractual claim as a
result of signing the Partial Settlement Agreement, which limited the
Provinces liability to claims for business losses to be adjudicated as
though the lands purchased by the defendant had been expropriated.

[22]

However, the trial judge held that Shuswap Lake Companies claim also
failed under the
Act
. The trial judge found that the Road Utilities
costs were not business losses, but disturbance damages within the meaning of
s. 34(1) and therefore barred by the Partial Settlement Agreement.

[23]

The trial judge also held that the
Act
only applies where a
taking occurs without the consent of an owner and the Shuswap Lake Companies
did not fall under the definition of owner in the
Act
, a prerequisite
for compensation. Owner is defined as a person who has an estate, interest,
right or title in or to the land and counsel for the Shuswap Lake Companies
conceded that the permits granted by the Province under which the Road
Utilities were placed did not grant the Shuswap Lake Companies an estate,
interest, right or title in or to the Highway right-of-way.

[24]

Finally, the trial judge held that the permits under which the
plaintiffs were granted the right to construct, use and maintain the Road
Utilities expressly stipulated that any move or alteration of the utilities
would be at their own expense.

Submissions


[25]

The Shuswap Lake Companies seek to have this Court set aside that
portion of the trial judges order dismissing their claim for costs associated
with relocating the Road Utilities and their claim for lost lot sales. They
seek to have this Court award them $244,168.87 for relocating the Road
Utilities and order a new trial to hear the claim for lost lot sales.

[26]

They raise the following issues on appeal:

a)  Did the
trial judge err in dismissing the Shuswap Lake Companies claim to compensation
for the Road Utilities costs?

b)  Did the
trial judge err in refusing to admit Mr. Grants opinion evidence
regarding the number of lots that would have sold but for the Project?

c)  Did the trial judge err in admitting
and relying upon the Provinces expert evidence?

Alleged Errors Regarding Compensation for the
Road Utilities Costs

[27]

The Shuswap Lake Companies do not appeal the trial judges decision that
there was no basis for the Road Utilities costs under the Agreement. Instead,
the Shuswap Lake Companies offer three bases on which they say the judge erred
in determining their claim is not compensable under the
Act
.

[28]

First, the Shuswap Lake Companies

submit that their claim to Road
Utilities costs was a business loss pursuant to s. 40(1)(b)(ii) of the
Act
and that the trial judge erred in characterizing them as disturbance damages
under s. 34(1) in a way that disqualified the losses from also falling
under s. 40(1)(b)(ii).

[29]

Second, the Shuswap Lake Companies submit that they had sufficient
interest in the land to be considered an owner within the meaning of the
statute, relying, as they did in the court below, on
R. v. Imperial Oil Ltd
.,
[1974] S.C.R. 623. They also rely on the recent decision of
Caven v. British
Columbia Hydro and Power Authority
, 2016 BCSC 122.

[30]

Finally, the Shuswap Lake Companies argue that the permits did not
provide a defence to their claim because the need to relocate was directly
attributable to the Project.

[31]

The Province responds, firstly, by saying it does not take issue with
the proposition that business losses are a subset of disturbance damages.
However, not all disturbance damages are business losses. The trial judge
properly relied on the plain nature of these costs  they were not business
relocation costs  and the intent of the parties in determining that they were
not business losses.

[32]

Second, the Province submits that the Shuswap Lake Companies had no
interest in the highway pursuant to which they could claim damages under the
Act
.
The permits expressly said the permissions enjoyed by the Shuswap Lake
Companies could be extinguished unilaterally by the Province.
Imperial Oil
is distinguishable as the appellant there had a sufficient ownership interest
in the land by virtue of its 21-year easement. Further, in
Caven
the
handshake deal allowing Mr. Caven to use his neighbours lands created a
right tantamount to an interest in land. In the alternative, the Province
submits that
Caven
was wrongly decided and failed to make reference to
Re
Frankel Steel

Construction Ltd. and Metropolitan Toronto
(1966), 58
D.L.R. (2d) 578 (Ont. C.A.) at paras. 5-7, affd [1970] S.C.R. 726, on the
nature of ownership and its relationship to entitlement to compensation. The
Shuswap Lake Companies have no tenure so they would receive no indemnity for
relocation costs.

[33]

Finally, the Province argues that the judge correctly relied on clause
ten of the permits to find that the Shuswap Lake Companies are obliged to
remove the Road Utilities at their own expense.

Error in Refusing to Admit Mr. Grants
Opinion on Lot Sales

[34]

The Shuswap Lake Companies do not take issue with the trial judges
findings concerning contributing causes to the decline in sales, but say these
factors related to the decline in 2008 and 2009, not the time period at issue
in their claim. The Shuswap Lake Companies argue that Mr. Grants opinion
should be relied on in this respect and say he was qualified to give the
opinion that he did. They note that Mr. Garnett was also an appraiser who
opined on the number of lots that would likely have sold but for the Project,
yet the trial judge did not exclude his evidence. The Shuswap Lake Companies
argue that probable lot sales must be the subject of an opinion and cannot be a
fact proven by other witnesses. They further submit that Mr. Grants
evidence did not usurp the role of the court and, even if it did, it was not
inadmissible simply because it addressed the ultimate issue.

[35]

The Province submits that, by his own admission, Mr. Grant was not
qualified to opine on the alleged business loss and was uncomfortable with
portions of his assignment. When Mr. Grant nevertheless went on to render
opinions that exceeded the scope of his qualifications it properly caused the
trial judge to question his reliability. By contrast, Mr. Garnetts
professional qualifications were superior to those of Mr. Grant and, in
any event, the trial judge did not rely on Mr. Garnetts evidence to limit
the quantum of the business loss claim. The Province submits that the argument
made by the Shuswap Lake Companies either misunderstands the causation
requirement or the trial judges finding on causation. The trial judge found
that the factual assumption concerning causation on which Mr. Grants
reports were premised was not proven by direct evidence. In any event, it
submits that this ground of appeal is moot because the Shuswap Lake Companies
themselves did not rely on Mr. Grants opinions in advancing their claim
for lost lot sales. They opted to rely on Mr. Spences evidence, but
failed to prove the assumptions underlying his business loss estimate.

Error in Assessing the Provinces Expert
Evidence

[36]

The Shuswap Lake Companies submit that the trial judge failed to apply
the legal principles governing the admissibility of expert evidence to the
Provinces expert opinions. They argue that the evidence of Messrs. Garnett and
Wozny offend these principles by,
inter alia
, expressing opinions they
were not qualified to give and expressing opinions on the legal and general
merits of the appellants claim. Further, they say they were prejudiced by late
delivery of these reports, which went beyond merely responding to their own
expert reports. Finally, they argue that the trial judge erred in concluding that
their opinions were objective, sensible and of great assistance.

[37]

The Province submits that the reports were not late because they were
responsive to the Shuswap Lake Companies expert reports, the second set of
which were themselves served late. In the alternative, if this Court determines
that the reports went beyond responding to the Shuswap Lake Companies reports,
the Province argues that the trial judge properly exercised his discretion to
admit them because the Shuswap Lake Companies were unlikely to suffer any
prejudice. The Province notes the high degree of deference to be accorded to
the trial judges exercise of his gatekeeping function.

[38]

More broadly, the Province submits that all of the above errors are
immaterial to the outcome of the case. The Province takes the view that the
trial judge dismissed the business loss claim because (1) the Shuswap Lake
Companies failed to prove the factual underpinnings of the claim (in
particular, that the Project caused a decline in lot sales); (2) that the
Shuswap Lake Companies did not rely on Mr. Grants evidence in their final
submissions; and (3) that the trial judges decision did not turn on his acceptance
of the Provinces experts. The Province also argues that the Shuswap Lake
Companies have not raised an error of law such that the standard of review is
one of palpable and overriding error.

Analysis

[39]

I will deal in turn with the two heads of business loss still extant.

(i)
Loss of
Sales of the Highlands Lots

[40]

Under this head, the Shuswap Lake Companies advanced two alleged errors
in the judgment below:

1.       The trial judge erred in
refusing to admit Mr. Grants opinion evidence regarding the number of lots
that would have sold but for the Project cap piece; and

2.       He erred in admitting
and relying upon the provinces expert evidence.

[41]

In my view, this search for error is misguided. As the province submits,
the appellants challenge in making out its case under this head is not limited
to successfully arguing the admissibility of all of Mr. Grants reports
and impugning the reliability of the experts called by the Province.

[42]

Fundamentally, the appellants failed to meet their burden in proving
that the Project caused the decline in the Highlands lot sales. Despite his
ruling, the judge did consider Mr. Grants opinion in this regard: para. 33.
And he noted Mr. Spences evidence, based as it was upon assumptions that
were given to him regarding the numbers of lots that would have sold, and at what
price, had the Project not occurred. But the judge made critical findings of
fact that fatally contradicted these assumptions.

[43]

The trial judge found that there was no direct evidence that the Projects
construction affected the business in any way: para. 86. The judge
referred to the lack of anecdotal evidence suggesting an effect of the Project
on lot sales (at para. 87):

Without any of this evidence, it
is pure conjecture and speculation to claim that lots would have been sold but
for the change in eastbound access to the Project. If lot sales were lost as a
result of the Projects construction or its aftermath, even a modicum of
evidence would likely have been available from any one of the number of
prospective purchasers that visited [SLELs] sales office after the Project was
announced.

[44]

The judge concluded that the appellants evidence regarding business
losses was at best speculative; that Messrs. Grant and Spence relied on
assumptions founded on an educated guess by Mr. Barker: para. 91.

[45]

The judge noted the obvious: opinions of experts are only as good as the
facts upon which they are based; those facts must be proven: para. 93.

[46]

The judge concluded (at paras. 94, 95 and 98):

[94]      The following is a list of some of the more
fundamental facts that were relied upon by Messrs. Grant and Spence and which
were not proven in evidence:

a)         lot sales would have
continued at a level consistent with SLEs historical OMREB market share had
the Project not been constructed;

b)         but for the Project, the
average single family lot selling price would have ranged from $160,000 to
$183,000; and

c)         the discount from
listing price to final selling price would have been 25%.

[95]      The opinions of Messrs. Grant and Spence were
undermined by the plaintiffs failure to prove the truth of these assumptions
on the balance of probabilities. Moreover, their opinions were a somewhat
convoluted attempt to deal with assumptions they were directed to make that
were, in my view, both unreasonable and unsupportable. In the circumstances, Mr. Grants
comment that he was uncomfortable with portions of his assignment is not
surprising.



[98]      In my view, the
evidence falls woefully short of establishing on the balance of probabilities
that the decline in Highlands lot sales was attributable to or resulted from
the change in signage and access to the Shuswap Lake Estates development during
or as a result of construction of the Project. This is not a case where a
proven loss is difficult to quantify. Rather, this is a case where a loss has
not been proven.

[47]

The judge found the following factors contributed to the decline in the Highlands
lot sales (at paras. 99 and 100):

·

The company was slow to react to the general decline in the real
estate market commencing in 2008;

·

The company did not match price reductions implemented in the
broader Salmon Arm market; and

·

The absence of Lois Barker during 2009, and the ineffectiveness
of their other sales staff, combined with the economic downturn.

[48]

These are findings of fact. It has not been shown that the judge made
any palpable and overriding error in arriving at these conclusions.

[49]

The appellants argue the trial judge confused the causes of the decline
in lot sales during 2008-2009 with the causes of the decline during the claim
period of 2010-2015. However, the failure of the Shuswap Lake Companies to
react to the market decline, to reduce prices, or to hire effective sales
staff, all continued during the claim period.

[50]

It was open on the record before the trial judge to find that these were
the real causes of the decline in lot sales during the claim period, not the
Project. These findings are the basis for the dismissal of this aspect of the
claim for business losses by the judge. The evidentiary ruling affecting a
portion of Mr. Grants report was the least of the appellants problems at
trial.

[51]

In any event, that ruling was, in my view, inevitable when one
appreciates that Mr. Grant frankly admitted to a complete lack of
qualifications as an expert in estimating general business losses (as distinct
from agricultural business losses) and that he was uncomfortable with the
assignment.

(ii)
Road
Utilities Costs

[52]

In my view, this claim was properly dismissed by the judge on the basis
of the terms of the permits under which the appellants initially constructed,
used and maintained the Road Utilities within the highway right-of-way.

[53]

The permits authorized the works subject to clause 10 thereof:

10.       That after receiving
notice in writing of the intention on the part of the [defendant] to construct,
extend, alter, or improve any public work, the person or persons responsible
for the maintenance of the works for which permission is hereby granted shall
within six weeks move or alter such work at his or their own expense to such
new position or in such manner as may be necessitated by the construction,
extension, alteration, or improvement proposed to be carried out by the [defendant].

The required notice was given.

[54]

The appellants response to this formidable provision is the submission
that it does not provide a defence to their claim because the need to relocate
the works was directly attributable to the Project.

[55]

The need to relocate was directly attributable to the Project and clause
10 expressly contemplates the relocation of the works if the authority has the
intention to construct, extend, alter, or improve any public work. The
appellants rely on the Supreme Court of Canadas decision in
Imperial Oil
to
still ground their claim. But there the permitted works were removed at the
direction of the minister under the
Navigable Waters Protection Act
.
There was no unambiguous language in that legislation or the federal
Expropriation
Act
of the day empowering the minister to do so without the payment of compensation.

[56]

At bar, there is. Clause 10 of the permits under which the very works
were installed expressly contemplates their movement or alteration at the
appellants own expense. The appellants are simply bound by the terms of the
permits they agreed to and under which they accessed the right-of-way in the
first place.

[57]

I do not read the current
Act
as allowing compensation for
business losses despite the clear language limiting liability under the
permits. Nor do I read the Partial Settlement Agreement as a waiver by the
Province of its right to invoke clause 10 of the permits to deny a claim for
compensation.

[58]

In my view, the permits are a complete answer to this particular claim
and it is not therefore necessary to consider the remaining submissions under
this head.

[59]

In the result, I would dismiss the appeal.

The Honourable Chief Justice Bauman

I agree:

The Honourable Mr. Justice
Hunter

I agree:

The Honourable Madam Justice
Fisher


