Summary

Keywords

Expropriation - Limitation of actions - Expropriation — Limitation of actions — Injurious affection — Whether the limitation provision in Canadian expropriation legislation require that the claim for injurious affection be made before construction of the public works has completed — What knowledge of the impact of construction of the public work is the owner of an impacted property interest required to have in order to trigger the one year limitation period — Who has the burden of proof concerning the knowledge necessary to trigger the limitation period under Canadian expropriation legislation?.

Summary

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South Coast British Columbia Transportation Authority (TransLink) began construction on the Canada Line rapid transit in Vancouver, BC in the fall of 2005. A portion of the construction passed through Cambie street, disrupting businesses there. On November 10, 2008 Gary Gautam (Cambie General Store) started an action under the Class Proceedings Act, RSBC 1996 c. 50, seeking damages for nuisance caused by the construction. The action was certified as a class proceeding and common issues were established in 2015. The action proceeded to a summary trial against TransLink, the only named defendant with expropriating powers. The trial judge awarded compensation to the applicants for injurious affection. However, a majority of the Court of Appeal for British Columbia ordered a new trial for two of the applicants, due to the trial judge’s incorrect interpretation of the limitation period, analysis of unreasonable interference, and improper assessment of damages. A dissenting judge at the Court of Appeal would have ordered a new trial on the limitation period and not altered the trial judge’s assessment of damages.