



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bryans Transfer Ltd. v. British
  Columbia,









2010 BCCA 89




Date: 20100126

Docket:
CA037508

Between:

Bryans
Transfer Ltd.

Respondent

(Plaintiff)

And

Her
Majesty the Queen in Right of the Province of British Columbia

Appellant

(Defendant)

And

City
of Trail and Regional District of Kootenay Boundary

Respondents

(Defendants)




Before:



The Honourable Mr. Justice K. Smith





(In Chambers)




On
appeal from: British Columbia Supreme Court, September 1, 2009
(
Bryans Transfer Ltd. v. Trail (City)
, 2009 BCSC 1198, Kamloops Reg.
39822)

Oral Reasons for Judgment




Counsel for the Appellant:



K.
  Horsman





Counsel for the Applicant Intervenor:
  Surveyor General of British Columbia



A.R.Westmacott





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  26, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  26, 2010






[1]

K. SMITH J.A.
:
This is an application by the Surveyor General to intervene in an appeal
between Her Majesty the Queen in Right of the Province as appellant and Bryans
Transfer Ltd., the respondent and the plaintiff in the action below. The City
of Trail is not opposing the application, nor is Her Majesty the Queen. The
respondent Bryans Transfer Ltd., however, does oppose the application,
although its counsel has not appeared in response to the motion today.  Rather,
he has filed a letter setting out in point form objections to the intervention
and a short memorandum of argument.

[2]

The question in the action involves the accretion
of what was formerly Crown land covered by the Columbia River.  The land, which
was uncovered on a reasonably permanent basis after a dam was constructed
upstream on the River, is adjacent to land owned by Bryans Transfer Ltd.,
which claims title to the land under the common law principle of accretion. Since
it was uncovered, the land has been used by the City of Trail and by the
Province for their purposes and the action below claims against them for
trespass.

[3]

In the trial court, the Province argued that the
statutory scheme established by the
Land Title Act
, R.S.B.C. 1996, c.
250 and the
Land Title Inquiry Act
, R.S.B.C. 1996, c. 251, have altered
or abrogated the common law, and that ss. 94, 95, and 96 of the
Land Title
Act
are a complete code dealing with the accretion of Crown land formerly
covered by water into an upland owners title.

[4]

Bryans Transfer Ltd. was successful below but
on a ground that was not argued by either party and I gather is not supported
by either party on appeal.

[5]

The Surveyor General takes the position that the
judgment adversely affects his ability to carry out his statutory functions and
that he is directly affected by the judgment and, as well, that he has a useful
perspective to bring to the appeal from the public interest point of view.

[6]

The Surveyor General is appointed under s. 34(1)
of the
Land Title and Survey Authority Act
, S.B.C. 2004, c. 66, to administer
the Surveyor General Division of the Land Title and Survey Authority of British
Columbia, which has separate legal existence from the Provincial Crown. It is
responsible for managing, operating and maintaining the land title and survey
systems of British Columbia. It is a statutory delegate responsible under the
Land
Act
and the
Land Title Act
for adjudicating various applications
brought under those statutes, including applications affecting natural
boundaries submitted under s. 94(1) of the
Land Title Act.

[7]

I am satisfied that the Surveyor General has a
direct interest in the appeal. It raises a fundamental issue with respect to
the scope of his jurisdiction, and the interpretation of the applicable
provisions of the statute adopted by the learned chambers judge has had a
significant impact on the applicants operations. It was restricting his
ability to process accretion and natural boundary adjustment applications that
do not involve the deposit of a subdivision plan. That effect of the order has
been stayed pending disposition of the appeal by an order made earlier in this
proceeding by Madam Justice Neilson. Of course, if the appeal is unsuccessful,
those effects will continue and, as a result, the survey community and land
owners will be deprived of an administrative process for clarifying the
boundaries of waterfront properties and will be left to common law principles.

[8]

Bryans Transfer Ltd. sets out several
objections to the intervention.

[9]

It objects that the Surveyor General took no
position with respect to the matter when it was in Supreme Court and, by
implication, asserts it therefore should not be allowed to take a position on
the appeal. I am advised by counsel for the Surveyor General that the Surveyor
General held a watching brief at trial and did not participate.  As I have
already noted, the ground of appeal that has caused such concern for the
Surveyor General was not argued by either party at the trial and there was
therefore no occasion for the Surveyor General to take a position on that
ground.

[10]

Bryans Transfer Ltd. is also concerned that the
Surveyor General will attempt to adduce fresh evidence on the appeal. I am
assured by counsel for the Surveyor General that he has no such intention.
There is afoot some thought of introducing fresh evidence relevant to this
issue but that is an initiative that Her Majesty the Queen may take, rather
than the Surveyor General.

[11]

Bryans Transfer Ltd. also objects that the
position the Surveyor General wishes to take will be adequately covered by the
Provincial Crown and there is no need for the Surveyor General to intervene. 
However, I am advised by counsel that the Surveyor General does not intend to
argue any points made by the Provincial Crown but simply to adopt what the
Provincial Crown has to say, that the Surveyor General wishes to make submissions
as to the effect of the judgment on his statutory duties and responsibilities
as opposed to the merits of the issues as between the parties.

[12]

I repeat that I am satisfied that the Surveyor
General has a direct interest in the appeal and will bring a useful and unique
perspective to an issue of public law.  Accordingly, I grant leave to the
Surveyor General to intervene.  The Surveyor General will have leave to file a
factum that does not exceed 20 pages. The Surveyor General asks for an order
that it be permitted to make oral submissions at the hearing. I will leave that
request to the division hearing the appeal.

(discussion
with counsel)

[13]

K. SMITH J.A.
:
The intervenors factum is to be submitted by March 5, 2010, and the respondent
Bryans Transfer Ltd. will file his factum by March 19, 2010.

The Honourable Mr. Justice K. Smith


