State of emergency renewal provided excuse for inaction, judge rules in B.C. sinkhole case

British Columbia has been ordered to provide compensation to homeowners forced from their residences by sinkholes, with the judge in the case admonishing the province for continually renewing a state of the emergency in the area while taking little action to fix the problem.

The affected homeowners have property in a subdivision called Seawatch in the municipality of Sechelt, which is approximately 50 kilometres northwest of Vancouver. In February 2019, the municipality issued a state of local emergency (SOLE) and evacuation order after erosion and sinkholes made the homes unsafe to live. The province subsequently approved an extension of the state of emergency 138 times under the terms of B.C.’s Emergency Program Act.

Residents Carole Rosewall and Gregory and Geraldine Latham took the province and district of Sechelt to court, arguing the extensions have put them in a state of limbo — their houses have not been taken away, but they cannot occupy, or even visit, them.

And now B.C. Supreme Court Justice Geoffrey Gomery has ruled the plaintiffs must be compensated to the tune of nearly $200,000 for the expenses they have accrued since 2019. He held that the initial state of emergency was justified, but subsequent extensions were not.

“In this case, the continuing renewal [of the state of emergency] has provided an excuse for inaction on the part of the District [of Sechelt] and the province,” he wrote in Rosewall v. Sechelt (District of) 2022 BCSC 20, which was issued Jan. 10. “It seems that there has been no incentive for anyone to take steps to address the geotechnical instability of the subdivision while it remains the subject of a SOLE and under an evacuation order. Nor have steps been taken to decommission the subdivision.”

At the time of the neighbourhood was evacuated, many of the homes had a value of more than $1 million. But the province recently valued them at $2.

Justice Gomery noted Rosewall and the Lathams have each moved into rental accommodation and paid rent “that they would not have had to pay if their homes were available to them.”

“The province has contributed to the present state of affairs in two ways: by encouraging and funding construction of a permanent fence to prevent people from entering Seawatch since May 2019; and by purportedly and unlawfully maintaining the SOLE in force since May 17, 2019,” he wrote. “While the province’s actions might best be characterized as administrative in nature, the effects on the plaintiffs are no less real for that.”

Jason Gratl, who represented the plaintiffs, said the decision was a “great relief” for his clients because it not only offers them compensation for the expenses they have accrued but now offers an opportunity to move forward addressing the long-term fate of the subdivision and its properties.

“My personal hope is that the province, the homeowners and Sechelt sit around a table with the developer and others who should have known better and come to a long-term resolution that represents and fair and equitable compromise between the parties to do something about these luxury homes lying fallow in an evacuated subdivision,” he said.

Gratl said he and his colleagues were unable to find any cases throughout Canada that interpreted emergency powers such as the kind the province used under the Emergency Program Act.

“States of emergency are powers of an extraordinary nature which are temporally and geographically limited and entail a positive obligation on those exercising them to prepare for a cessation of the emergency,” he said. “Across Canada you see the common exercise of emergency powers and the implication of the case is at that the law requires a return to the old normal — emergency powers are set up to deal with extraordinary situations, but at some point the government must within a reasonable framework return to their usual powers.”

In a statement, B.C.’s Minister of Public Safety and Solicitor General Mike Farnworth said he “acknowledge[d] the difficult situation that property owners of this development are facing.”

“The province is taking time to review this decision and consider our response,” he said.

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