The Petitioner (“Ms. Mackay”) successfully appealed a decision of an arbitrator who had rejected her claim for nuisance in respect of her dealings with the Respondent, Archaeology Branch. Those dealings involved the Branch requiring her to obtain a heritage inspection on her property as a condition to obtaining a site alteration permit.

Administrative law – Decisions of administrative tribunals – Ministerial orders – Permits and licences – Arbitration – Heritage sites – Inspection – Nuisance – Test – Judicial review – Compliance with legislation

Mackay v. British Columbia, [2013] B.C.J. No. 1121, 2012 BCSC 945, British Columbia Supreme Court, May 30, 2013, L.B. Gerow J. (In Chambers)

The Petitioner, Ms. Mackay, purchased a property at 2072 Esplanade Avenue in Victoria, BC (the “Property”) from her parents in 2006. The Petitioner and her husband planned to demolish the existing house and build a new one.

The Property was the site of an archeological dig by a master’s degree student (“Mr. Kenny”) and his team in 1971. At that time, the Property was part of the adjacent property. The team found more than 850 artifacts. Mr. Kenny’s report was filed with the Respondent, Archeology Branch of the Ministry of Tourism, Sport and the Arts (the “Branch”). In 1985 the Petitioner’s parents purchased the Property and built a house on it. There were artifacts found during the construction of the new house but no permits were required in connection with the demolition or construction done by the Petitioner’s parents.

When the Petitioner purchased the house, she had no knowledge that the Property had archeological significance. She retained an architect and they contacted the Branch to see if a heritage-related permit was required for the demolition and construction. The Branch told the architect that the Property was an unprotected heritage site and the Petitioner required a site alteration permit under section 12 of the Heritage Conservation Act. The Petitioner engaged a research company who conducted a section 14 investigation pursuant to instructions by the Branch. That inspection ended with a recommendation of extensive additional testing. The Petitioner then hired an archaeologist to help her obtain a site alteration permit under section 12. She spent several thousand dollars in this process.

The Petitioner brought a claim against the Branch seeking compensation. She alleged that the Branch did not have the statutory authority to require her to obtain and pay for a heritage inspection under section 14 for her to obtain a section 12 permit. She also alleged the Branch’s requirements constituted a nuisance because they interfered with her enjoyment of the Property. The parties agreed the matter would be decided by arbitration. The arbitrator dismissed the Petitioner’s claim on the basis that she failed to prove any liability against the Branch.

The Petitioner sought leave to appeal to the BC Supreme Court. The chambers judge dismissed the application for leave to appeal and then the Petitioner appealed to the BC Court of Appeal. The Court of Appeal set aside the order of the chambers judge and granted leave to appeal on the two questions posed by the Petitioner.

The first question on appeal was whether the arbitrator erred in law in failing to apply the correct test necessary to establish nuisance. The second question on appeal was whether, if nuisance was established, did the arbitrator err in finding that the Branch had statutory authority to require the Petitioner to engage archaeologists to conduct a heritage inspection and a heritage investigation on the Property, as preconditions to granting a site alteration permit under section 12 of the Act.

The Court referred extensively to the recent Supreme Court of Canada decision in Antrim Truck Centre Ltd v. Ontario (Transportation), 2013 SCC 13, which recently clarified the law of nuisance.

In its analysis, the Court first found that the arbitrator erred in his interpretation of the law of nuisance. Specifically, he considered the tort only to be made out if there was a nuisance to the land, rather than the person. In Antrim Truck, the SCC stated that the tort of nuisance may include interference with the health, comfort or convenience of the owner or occupier of the land.

The Court then considered whether the arbitrator applied the correct test. The Court held the arbitrator did not undertake the requisite balancing of interests (weighing the gravity of the harm to the Petitioner against the utility of the Branch’s conduct). The Court answered “yes” to the first question; namely, that the arbitrator erred in applying the correct test for nuisance.

The Court then considered the second question. The Court held that section 12 of the Act was the applicable section because the Petitioner wanted to build a new house on the Property. There is no express provision in section 12 allowing the Branch to impose a heritage inspection or investigation as a condition to obtaining a site alteration permit. Section 14 is the section that authorizes the Branch to order a heritage inspection or require a heritage permit. The Court considered this express provision in contrast to the absence of an express provision in section 12. The Court concluded that the Branch did not have the statutory authority to require the Petitioner to complete a heritage inspection as a condition of her obtaining a site alteration permit under section 12. The Court therefore answered “yes” to the second question.

The Petitioner had also attempted to seek a judicial review to obtain a declaration that the Branch had no authority to require her to obtain a heritage inspection. The Petitioner’s attempted judicial review application was allegedly related to past conduct and to ongoing assertion of statutory authority. However, the Court found there was no order or decision in place that the Petitioner was seeking to have reviewed. The Court found it was an abuse of process for the Petitioner to attempt to bring a petition dealing with the same issues as were being dealt with in the arbitration and the appeal.

The Court found on the appeal that the arbitrator had erred. The Court awarded costs to the Petitioner for the appeal.

The Court dismissed the petition for judicial review. The Court awarded costs to the Branch for the petition.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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