



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Vesuna v. Drysdale,









2013 BCCA 10




Date: 20130108

Docket: CA039247

Between:

Rumi Vesuna

Appellant

(Plaintiff)

And

Alec Drysdale, Her
Majesty the Queen in Right of

The Province of
British Columbia, Sea-Mait Investments Ltd.

and M.L. & H.
Holdings Ltd.

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Low





The Honourable Madam Justice D. Smith





The Honourable Madam Justice A. MacKenzie




On appeal from: Supreme
Court of British Columbia, July 13, 2011
(
Vensuna v. British Columbia (Transportation)
, 2011 BCSC 941,
Powell River Docket S1992)

Oral Reasons for Judgment




Appellant appearing In Person:









Counsel for the Respondents, A. Drysdale & the
  Province of British Columbia:



K. Wolfe and A.
  Davies





Counsel for the Respondent:



I. Fleming





Place and Date of Hearing:



Vancouver, British
  Columbia

January 8, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 8, 2013








[1]

LOW J.A.
:
In
2005, the appellant purchased a fifty-acre land-locked parcel of property near
Powell River, B. C. for $90,000, well below the list price of $175,000. There
was no road access to the property but there was a dedicated road allowance on
adjacent property to the south connecting the property with Highway 101 that
runs east and west. Title to the road allowance by law vests in the Province of
British Columbia. Before purchase, the appellant saw a 1996 plan indicating the
location of the road allowance but it was apparent to the appellant that no
road had been built.

[2]

The
appellant took steps after purchase to obtain the necessary governmental
approval for construction of a road on the allowance to give him road access to
his property. A government representative suggested that there were some
environmental difficulties with the approval he sought because of federal
fisheries law. This arose because the road allowance intersects a
salmon-spawning creek near Highway 101. The government representative suggested
to the appellant that he attempt to obtain an easement over the property to the
east to gain the access he required. That property is owned by the two corporate
respondents, whom for convenience I will describe jointly as Sea-Mait.

[3]

The
appellant was unable to negotiate an easement with Sea-Mait so he brought this
action against Sea-Mait, the Province and Alex Drysdale who is the Provincial
Approving Officer.

[4]

The
appeal is from an order made by Madam Justice Griffin dismissing his action
against all the respondents following a nine-day trial. Her reasons are indexed
at 2011 BCSC 941.

[5]

The
trial judge described the broad issues at trial thus:

[11]      Mr. Vesuna asserts a variety of allegations,
from which emerge two key issues which I will first address:

1.         Is the road or driveway that
runs diagonally across the southwest corner of Lot 3836, from the south border
of Lot 3836 to the west border of Lot 3836, intersecting with the road
allowance, a public or a private road?  For ease of reference, I will refer to
this as the Disputed Road;

2.         Was the Crown negligent in
approving the subdivision that led to the creation of the plaintiffs parcel of
property in 1960, because it is impossible to build a road on the road
allowance?

[6]

In
a rambling factum, the appellant purports to identify, by my count, some 37
legal and factual errors he says were made by the trial judge. Many of these
are merely observations unsupported by analysis that would permit us to
identify arguable error. With considerable validity, both pairs of respondents
contend that the arguments made by the appellant are no more than re-argument
of the case he attempted to make at trial, accompanied by some
mischaracterization of the evidence and assertions of primary facts or
inferences of fact not accepted by the trial judge. They say the appellants
argument is based on the case as he sees it, not as objectively viewed by the
trial judge, and without identification of error by the trial judge.

[7]

The
appellant brought an application for this court to receive fresh evidence
consisting mainly of government documents to add to numerous such documents put
into evidence at trial. This proposed new evidence was available before trial,
it adds nothing of significance to an understanding of the recorded history of
the development and use of the two properties in question and, if received into
evidence, would be incapable of having affected the outcome of this case at
trial. This proposed fresh evidence does not meet the test set out in
R. v.
Palmer
, [1980] 1 S.C.R. 759.

[8]

The
appellant owns District Lot 3504 less Block A that was subdivided out of the
lot in 1960. Highway 101 runs east to west at the south end of Block A and
Block A abuts District Lot 3836 to the east. Sea-Mait owns District Lot 3836. The
road allowance extends north from the highway on the eastern side of Block A to
the appellants property. The eastern edge of the allowance is the western boundary
of District Lot 3836. Sea-Mait is not interested in the allowance and is not
affected by its development or use.

[9]

Access
to Sea-Maits property is gained by an existing road located entirely on
District Lot 3836. It begins at Highway 101 near the southwest corner of the
lot. . It goes northwest from the highway to a point where it abuts the road
allowance on Block A. It is this section of road for which the appellant sought
an easement from Sea-Mait. The trial judge referred to this section of road as
the Disputed Road, as will I. From where it abuts the road allowance, the
road turns to the east and extends deep into District Lot 3836. There is no
dispute that this second section of the road is private.

[10]

As
against Sea-Mait, the appellant claimed that the Disputed Road is a public road
available for regular use by him and by other members of the public.

[11]

The
trial judge cited
Brady v. Zirnhelt
(1998), 57 B.C.L.R. (3d) 144 (C.A.)
in which it was held as follows:

A highway can come into being
in four ways:

1.         exemption from a Crown grant
(now
Highway Act
, R.S.B.C. 1996, c. 188, s. 2 and
Land Act
,
R.S.B.C. 1996, c. 245, ss. 13 and 57);

2.         expenditure of public money on
a travelled road (now
Highway Act
, R.S.B.C. 1996, c. 188,
s. 4) or entry on lands by the Minister of Highways and Public Works for
the purpose of establishing a highway (now
Highway Act
, R.S.B.C. 1996,
c. 188, s. 5(1));

3.         common law dedication of a road
by owner, whether a private owner or the Crown;

4.         dedication by deposit of a
subdivision plan showing a portion of the land as a highway (now
Land Title
Act
, R.S.B.C. 1996, c. 250, s. 107).

[12]

The
appellant claimed that the road in question became a public road under each of
the first three of these ways.

[13]

The
trial judge found that there was no exemption from the Crown grant of District
Lot 3504 in 1913 because a survey sketch attached to the grant did not show any
roads on it.

[14]

District
Lot 3836 was Crown granted in 1949. The trial judge described the evidence on
which the appellant relied to support an argument that there was a common law
dedication of the Disputed Road:

[23]      The key piece of evidence the plaintiff relies on
was found in copies of archival documents that set out an affidavit by Henry
Rhodes, a qualified land surveyor for the Province of British Columbia, sworn
January 6, 1912. His affidavit states that he conducted a survey of Lot 3504 on
December 9-10, 1911. His affidavit attaches his survey notes and drawing.

[24]      The Henry Rhodes 1911 survey notes and drawing
illustrate two short roughly parallel dotted line skid roads crossing from the
southwest corner of what became Lot 3836 into Lot 3504 on the eastern boundary
of Lot 3504, just east of Jefferd Creek, which runs through Lot 3504. The most
southerly of these two skid road markings is noted as being 5.60 chains from
the south boundary of the lot.

[25]      The plaintiff claims
that the southerly skid road marking on Henry Rhodes survey is in the same
location as the Disputed Road.

[15]

The
trial judge then found as a fact that the skid roads did not extend south on
District Lot 3836 far enough to intersect with what is now Highway 101. She
then referred to the records of a survey done in 1960 by a qualified land
surveyor, Victor Cecchi, now deceased. His work was explained to the court by
Rick Rae, a qualified land surveyor with the same firm. The trial judge
described this evidence:

[29]      Mr. Cecchis
survey identifies a logging road with a gate on it, which is the Disputed
Road, running diagonally from Highway 101, at the southern boundary of Lot
3836, across Lot 3836 to the road allowance on the west boundary of Lot 3836,
where it borders Lot 3504. Mr. Rae visited the site and checked and
confirmed the measurements of the logging road. He concluded that point where
the logging road intersected with the road allowance, north of the southeast
corner of Lot 3504, was approximately the same distance and location where the
southern skid road shown in Henry Rhodes survey intersected at the same
boundary of Lot 3504 and Lot 3836. The location was not exact but was within a
couple of metres of Mr. Rhodes 5.60 chains.

[16]

The
judge rejected the argument of the appellant that because the skid roads
apparently were created on public land prior to either Crown grant, they became
and remained public roads. The trial judge in the
Brady
case ([1996]
B.C.J. No. 969) rejected this argument and this court agreed, at para. 20.

[17]

The
Brady
case turned on the use of public funds to build the road in
question and the purpose for which it was built. It was built not only to
benefit the Crown as owner and the pre-emptor, but all those who wished to use
the road, including those who used the old west side road to gain access to
properties beyond.

[18]

The
trial judge found the evidence in the case at bar to fall well short of
establishing what had been established in
Brady
. She said this:

[40]      In contrast, in this case there is no evidence as
to what was the basis for the two skid roads noted on Mr. Rhodes 1911
survey. There was no evidence that the purpose of the skid roads was to provide
access to owners of properties beyond.

[41]      There was also no evidence as to general practices
with respect to skid roads on Crown lands in or around the same period as the
Crown grant for Lot 3504. It is possible that skid roads were for the sole
purpose of skidding logs harvested from Crown lands, and a private party paid
for the use of that Crown land as part of a licence from the Crown. In other
words, skid roads could have been for the purpose of facilitating timber
harvesting, but that commercial purpose might not have amounted to dedication
of the road as a public road.

[42]      There was some evidence
called as to more recent practice regarding skid roads. Essentially, a skid
road is an area which is only partially cleared and through which felled timber
is dragged to take it out of the woods and ultimately to market. The limited
evidence at trial suggested that such a road is more aptly described as a rough
trail to permit skidding and logging equipment to pass through.

[19]

The trial judge discussed at some length the history of the use of
District Lot 3836 before and since it was Crown granted in 1949. This
discussion was based on various Forestry Department documents and other
documents relating to the property, as well as evidence from a couple of
witnesses who had been involved in logging in the area. All this evidence
pointed to the lack of use of the skid roads as a road for members of the
public to cross the lot to get elsewhere. The judge concluded this part of her
analysis as follows:

[68]      As I have mentioned above, the 1911 survey notes of
Henry Rhodes do not show the skid road to run continuously from Lot 3504 across
the corner of Lot 3836, down to the boundary of Lot 1521 (or present day
Highway 101).

[69]      While it is likely that some roads in this province
that started out as skid roads became cleared more extensively, used over time
by the public, and became public roads, that does not mean that every skid road
pre-Crown grant became a public road. Yet this is really the effect of the
plaintiffs argument, without the evidence to support it.

[70]      The Court requires evidence before coming to the
conclusion that a skid road shown on pre-Crown grant land is a public road. Given
the extensive logging history of this province, concluding that a historical
survey showing a skid road is proof that the road is a public road, without
more evidence, could adversely affect many private property owners on whose
lands were once skid roads.

[71]      I conclude that there
is insufficient evidence for me to find that there was a public road existing
across the southwest corner of Lot 3836 into Lot 3504, in the same area as the
Disputed Road, at the time of the Crown grant of either lot.

[20]

The appellant has shown no basis for this court to interfere with the
above conclusion. There was a paucity of evidence capable of supporting the
conclusion that the skid roads were used for anything but the removal of logs.
There is no evidence that they were used by anybody for access across District
Lot 3836 to any other property, including District Lot 3504.

[21]

The trial judge turned to the question of whether any owner after the
date of the Crown grant of District Lot 3836 dedicated the Disputed Road. The
evidence was that one owner, Mr. Henninger, used the road for access to his
house on the property, kept a wire cable across it to block access and required
that permission be obtained for use of the road for logging on District Lot
3504. A subsequent owner replaced the wire with a steel gate that has remained
in place since then.

[22]

The appellant claimed that members of the public, such as occasional
pickers of salal or mushrooms, used the road. But the judge found that this
evidence was extremely weak and, in any event, such use was at best extremely
rare. At para. 77, the judge concluded: The greater weight of the evidence was
that if anyone sought to use the Disputed Road, they recognized it as a private
road and sought and obtained the permission of the owner ... first. There was
no common law dedication of the road to public use.

[23]

In this court the appellant simply repeats the weak arguments he made at
trial without demonstrating any misapprehension of the evidence or any other
error by the trial judge.

[24]

The next topic for the trial judge was the expenditure of public money
on the Disputed Road. Section 42(1) of the
Transportation Act
, S.B.C.
2004, c. 44 provides: ... if public money is spent on a travelled road that is
not a highway, the travelled road is deemed and declared to be a highway.

[25]

In 2006, Sea-Mait granted the Province, represented by the Minister of
Forests and Range a right-of-way over existing roads on District Lot 3836 to
construct certain works on the property as necessary for the operation and
maintenance of an undertaking of the Forest Service. This was accompanied by a
road maintenance agreement, the terms of which included road maintenance by
forestry, the provision to forestry of keys to the gate and the maintenance by
Sea-Mait of drainage structures along the roadway unless damage thereto was
caused by the Ministry of Forests or its agents.

[26]

The contract price to be paid to Sea-Mait was $3,500 annually. The trial
judge concluded that it was likely that public monies were expended on the
Disputed Road.

[27]

The argument of the appellant that this expenditure of public monies for
maintenance of the Disputed Road made the road a highway and, therefore, a
public road under s. 42(1) of the
Transportation Act
is fully answered
by s. 24 of the
Forest and Range Practices Act
, S.B.C. 2002, c. 69. That
section reads:

24        Despite section 42 of
the
Transportation Act
, a road constructed or maintained under this Act,
the
Forest Act
, the former Act as defined in section 1 of the
Forest
Act
or the
Forest Practices Code of British Columbia Act
is not a
public highway unless the Lieutenant Governor in Council declares it to be by
an order in council that he or she may make under this Act.

[28]

There was no evidence of an order in council having been passed to make
the section inapplicable.

[29]

The trial judge analysed the agreements between the Province and
Sea-Mait. She concluded that the parties clearly intended that the forestry
legislation would apply and not the
Transportation Act
. She said this:

[112]    It was clear by the terms of the Right of Way
Agreement that the Crown considered that the road remained a private road, and
not open to public use. The access to the Disputed Road was gated and locked. Also,
the annual fees associated with the Right of Way Agreement were nominal and not
of great benefit to the owner. In light of these circumstances, I find that the
Crowns use of the Disputed Road did not result in the road being travelled
within the intended meaning of s. 42 (1) of the
Transportation Act
.

...

[116]    In the case at bar, there is a contract
demonstrating an intention as between the Crown and corporate defendants to
keep the road private. Failure to give effect to such intention would tread
closely to sanctioning an expropriation without compensation. I find that the
effect of the Right of Way Agreement is to acknowledge that the Crown use of
the private road does not, in and of itself, make the road a travelled road
for the purposes of s. 42(1) of the
Transportation Act
.

Conclusion - Crown Expenditures on
Disputed Road

[117]    On the whole of the evidence, I find that any
expenditures on the Disputed Road by the Crown were pursuant to s. 24 of
the
Forest and Range Practices Act
, and that therefore s. 42(1) of
the
Transportation Act
does not apply to deem the road a public highway.

[118]    Further, in the
circumstances of this case, where the Crown has expressly agreed with the
private property owner that its expenditures and use do not transform an
otherwise private road into a public highway, and where there is no evidence
that the road has been generally used by the public, I find that the Disputed
Road is not a travelled road pursuant to s. 42(1) of the
Transportation
Act
, and so that section does not apply to deem the road a public highway.

[30]

The appellant has presented no argument that calls into question the
conclusion at trial that he failed to prove that the Disputed Road was a public
road on the basis of public expenditure.

[31]

The appellant alleged that the Crown was negligent in approving the
subdivision of District Lot 3504 in 1960 to create Block A with reservation of
the road allowance. On that issue, the judge said this:

[178]    I conclude that the
plaintiff has failed to call evidence that would support a finding that the
Crowns approving officer was negligent in approving the 1960 subdivision plan
concerning Lot 3504.

[32]

The appellant again has not presented any argument that would allow for
appellate interference with this conclusion. There was no evidence of such
negligence. In any event, as the judge found, the appellant led no evidence to
establish that the property, without easy road access, was worth any less than
the amount he paid for it. He paid considerably less than the list price and
property assessments subsequent to the purchase were considerably more than the
amount the appellant paid for the property.

[33]

It should be noted also that the appellant is not without opportunity to
secure access by development of the road allowance. In that regard, the trial
judge made this observation:

[171]    Secondly, the plaintiff
has adduced no evidence to establish that it would be impossible, from an
engineering design perspective, to have constructed a road at the site of the
road allowance in 1960. There has been no expert opinion provided on this point.
In the absence of such evidence, I am unable to accept the plaintiffs argument
that it would be practically impossible or highly dangerous to build a road at
the junction of Highway 101 and the road allowance.

[34]

The trial judge discussed other issues raised by the appellant as follows:

[179]    In addition to the two key issues I have addressed,
the plaintiff raised a number of additional issues, for which the factual
foundation to a large degree overlapped with the facts I have already reviewed,
as follows:

1.         If the Disputed Road is not
public but instead is a private road, does the plaintiff have any enforceable
agreement with the corporate defendants to allow him to use the Disputed Road,
and if so, did the corporate defendants breach that agreement, causing the
plaintiff damages?

2.         Does the Plaintiff have any
kind of easement which would allow him to use the Disputed Road?

3.         Did the corporate defendants
commit an actionable tort, such as nuisance, by locking their gate across the
Disputed Road, preventing the plaintiff from accessing his property via that
road in January 2006?

4.         Did the Crown negligently
misrepresent to the plaintiff that the road allowance provided access to Lot
3504?

5.         Did an employee of the Crown,
Mr. Drysdale, make and then breach an agreement with the plaintiff that
the Crown would engage in a land swap to solve the problem of the use of the
Disputed Road? and,

6.         Did the Crown breach a
fiduciary duty owed to the plaintiff, or did the conduct of its employee,
Mr. Drysdale, in dealing with the plaintiff amount to bad faith or an
abuse of public office?

[180]    The evidence was clear that the plaintiff did not
reach any agreement with the corporate defendants to allow him to use the
Disputed Road. He admitted this in his correspondence with the Crown and in his
evidence at trial.

[181]    The plaintiffs argument that an easement exists
over the Disputed Road appeared to be based on the same factual allegations he
advanced with respect to common law road dedication, or, the existence of an
enforceable agreement with the corporate defendants. These allegations were not
proven.

[182]    There was no evidence to support any duty on the
part of the corporate defendants to have the gate access on their private
property, across the Disputed Road, unlocked so as to allow the plaintiff to
use it in January 2006.

[183]    There were no negligent representations by the Crown
relied upon by the plaintiff to his detriment.

[184]    Mr. Drysdale did
not make any agreement with the plaintiff. There is also no evidence to support
any allegation that Mr. Drysdale dealt with the plaintiff any way that
might found a cause of action. There is no basis in the evidence for any claim
by the plaintiff that the Crown owed a fiduciary duty to him and then breached
that duty.

[35]

No basis has been shown for appellate interference with any of these
conclusions.

[36]

There was evidence that after negotiations with Sea-Mait for an easement
failed, the approving officer invited the appellant to commission an
engineering plan for the building of a road on the road allowance that would
address the environmental problem. It is clear that the appellant is far from
exhausting all administrative options for obtaining physical as well as
dedicated road access to his property. Instead of following up on the approving
officers suggestion, the appellant chose to bring this action based on
extremely weak evidence. He can still explore engineering options for
developing the road allowance.

[37]

The trial judge received written submissions from the parties with
respect to costs. She ordered that the successful defendants recover ordinary
costs from the appellant at Scale B. She also gave certain directions with
respect to the recoverability of certain disbursements. Her costs judgment is
indexed at 2011 BCSC 1618.

[38]

Although the costs judgment led to a second order, the appellant did not
file a separate notice of appeal. He did file an amended notice of appeal to
raise an issue with respect to the costs ordered. The provincial respondents
objected to this approach as being procedurally defective. I do not find it
necessary to address the procedural concern because I find no merit in the
appellants argument with respect to costs.

[39]

The appellant says the trial judge erred in approving certain fairly
substantial disbursements presented by the provincial respondents. In that
regard, the judge said this:

[37]      The Crown defendants claim the travel costs for one
lawyer on their legal team to attend the various interlocutory and trial court
proceedings. I find that the costs claimed in this regard are reasonable. The
proceeding by the plaintiff advanced complicated legal arguments and delved
into the distant historical past. The Crown defendants were entitled to use the
lawyers they considered most suitable to defend the proceeding, even if that
meant that counsel for the Crown defendants had to travel from Victoria to
Powell River to attend court.

[38]      I also note that the Crown has claimed for only one
lawyers travel expenses, even though the complexity of the matter required the
assistance of additional counsel, as well as a legal assistant.

[39]      Pursuant to Rule 14-1(7), I direct that these
travel costs as claimed in the draft Bill of Costs submitted to me by the Crown
be allowed.

[40]      The Crown also claims for the cost of reports
prepared by Mike Hansen, surveyor, and Otto Langer, fisheries biologist. These
reports were served upon the plaintiff before trial. Mr. Hansens report
was introduced into evidence. Mr. Langers report was not. However, the
Crown advises as to the nature of his expert opinion, namely that it concerned
whether or not, at the time the plaintiffs property was subdivided in 1960,
existing fisheries statutes and regulations would have provided a practical
impediment to construction of a driveway on the plaintiffs property.

[41]      I find, based on the claims advanced by the
plaintiff, that it was entirely reasonable for the Crown defendants to seek an
opinion on this issue. Given that the plaintiffs own evidence fell short, it
is not surprising that in the end the Crown defendants elected not to call this
expert evidence. I find that the disbursements incurred by the Crown defendants
in retaining these experts and obtaining their reports, as set out in the draft
bill of costs, are reasonable, and I direct that these costs be allowed.

[42]      In addition, the Crown
defendants claim the tariff item cost of retaining and consulting three
experts, Mr. Langer and Mr. Hansen as aforesaid, and Sharon Goddart. Since
Ms. Goddart is an employee of the Provincial Government, there was no
extra disbursement incurred in retaining her. However, she is an engineer
employed by the Ministry of Transportation and Highways, and she provided an
expert opinion on the issue of whether there were any engineering design
impediments to constructing a driveway from Highway 101 to the plaintiffs
property. I find that this was relevant evidence for the Crown defendants to
obtain in light of the plaintiffs allegations in the case. I find that it was
reasonable for the Crown to retain and consult with these experts, and
therefore I direct that the tariff item 17 costs of doing so be allowed.

[40]

The trial judge was in a much better position than we are to determine
reasonable disbursements in the context of the entire case and I am not persuaded
that there is any basis on which we can set aside the determinations she made
in the above paragraphs.

[41]

In my opinion, this appeal is without merit and I would dismiss it with
costs to both pairs of respondents.

[42]

D. SMITH J.A.:
I agree.

[43]

A. MACKENZIE J.A.
: I agree.

[44]

LOW J.A.
: The appeal is dismissed with costs to both pairs of
respondents.

The
Honourable Mr. Justice Low


