The family owners of a ranch (the “Chivers”) were unsuccessful in their appeal from certain aspects of a decision of the Expropriation Compensation Board (the “Board”) which had fixed compensation for the effect upon their ranch of the expropriation of a portion of that land for highway widening project

Administrative law – Decisions of administrative tribunals – Expropriation Compensation Board – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Chivers v. British Columbia, [2005] B.C.J. No. 1227, British Columbia Court of Appeal, June 3, 2005, Esson, Prowse and Lowry JJ.A.

The Chivers property was bisected by a highway such that the northern portion of the ranch contained hayfields, two residences, outbuildings, a horse riding ring and some other fields. Access to that property was by a driveway constructed in the 1950s. The Chivers had access to that portion of the property without a highway access permit since the purchase of the property in 1988.

The southern portion of the property contained a large amount of gravel and land that was not suitable for farming. Access to the southern portion of the property from the highway had been by way of a public road called Badger Creek Road. Although it was meant to be a public highway, there was a locked gate at the intersection of the road with the highway to which the Chivers held the key.

The three issues on appeal were:

1. whether the Board erred in finding that the Chivers had an equitable right of access to the southern portion of their property after the expropriation;
2. whether the Board erred by placing the onus on the Chivers to establish that access to the southern portion of the property was less safe after expropriation than before; and
3. whether the Board erred in finding that the Chivers’ access to the southern portion of the property was “not less safe” after the expropriation.

The Court of Appeal applied the standard of correctness to the first two grounds, given that they were questions of law, and the standard of reasonableness to the third issue.

The Court then considered whether the Chivers had a legal right of access to the southern part of the property prior to the taking which was no longer effective after the expropriation of the property. The former Highway Act in section 54, which applied to the Chivers read:

Unless the person holds a valid and subsisting permit from the Minister, a person must not construct or use a private road, entrance, way, gate or other structure or facility as a means of access to a controlled access highway.

The Court reviewed the decision in Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69 in which the Province promised Mr. Hill access to the highway. In that case, Mr. Hill relied on those representations and the Supreme Court of Canada held that Mr. Hill was to have an equitable interest in the expropriated land as an integral and essential part of the compensation paid for those lands. That is, a statutory provision such as section 54 does not invariably operate to prevent the private landowner whose property adjoins a controlled access highway, and who does not hold an access permit, from exercising access to his property.

The Chivers had taken the position that they would not rely on the government’s assurances that they would be entitled to equitable access to the southern portion of the property after the expropriation. The Chivers attempted to maintain this position despite the fact that the government had reconstructed the southern access, including the gate to which the Chivers were given the key. It was also clear that the Chivers had continued to use the southern property since the expropriation, selling gravel from it and moving cattle as they had previously. There was no error in the Board’s decision that the Chivers had an equitable right of highway access to the southern part of the property, running with the land, since the expropriation.

The Court then moved on to the question whether the Board erred in placing the onus on the Chivers to establish that access to the southern portion of the property was now “less safe”. The Court did not accede to this ground of appeal, because upon reviewing the Board’s decision, it was clear that the Board considered the evidence as a whole. The question of who bore the onus of proof did not play a determining role in the decision that crossing the highway was not less safe after the expropriation than before.

Finally, the Chivers argued that the Board erred in finding, as a fact, that the southern access was not less safe than the former Badger Creek Road access. The conclusion reached by the Board with respect to safety was held to be supported by the evidence, including expert evidence, and to be reasonable. The standard of review on the finding of fact was one of reasonableness, and the Court quoted from the decision in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 for the proposition that the test on reasonableness does not mean that every element of the reasoning must independently pass that test. The question is whether the reasons, taken as a whole, are tenable as support for the decision.

The Chivers’ appeal was dismissed on all three issues.

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