Judge sides with homeowners in B.C. sinkhole case against the province

Moving trucks could be seen outside a home in the evacuation alert zone in Sechelt, B.C. on Thursday, Feb. 14, 2019.

A judge sided with three B.C. homeowners who took on the provincial government in a nuisance case stemming from a series of sinkholes in their subdivision in Sechelt.

Fourteen properties located on two streets in the Sunshine Coast municipality had to be evacuated in 2018 after a massive, 12-metre-deep sinkhole opened up on Christmas Day.

According to the District of Sechelt at the time, "geotechnical instability" in the Seawatch Concordia subdivision resulted in multiple sinkholes, not just the first one.

Residents of North Gale Avenue and Seawatch Lane were forced to leave because of the danger.

Among those residents were Greg and Geraldine Latham, who spoke to CTV News in February 2019. In an emotional interview, the couple said their home was their nest egg, and the last house they planned to own.

"Everything we had was invested in it," Greg said at the time, at one point breaking into tears.

"This loss, if we can't get it corrected, will impact us for the rest of our life."

Court documents from Tuesday's hearing suggest a study of the area determined the geological instability was associated with "underground stream activity," despite a geotechnical engineering firm determining it was suitable for the construction of houses described by the judge as "large, modern, comfortable and (boasting) a splendid view of the inlet."

More than three years later, the subdivision remains closed. Squatters are living in the area, and the homes have been vandalized.

The Lathams were among the homeowners who went to court over the devastating situation. Their neighbour Carole Rosewall was also a plaintiff in a similar civil case against the province of British Columbia. The Lathams and Rosewall were the first of 14 families to buy homes in the subdivision, and say that since the sinkholes, "government action has cast them into a state of limbo."

They filed a claim against the province for nuisance and compensation for the impacts of that inaction.

"Their primary position is that they have been forced from their homes by an unlawful and abusive purported exercise of statutory authority. They say there is no evidence that their homes and their safety were or are at risk," summarized Justice Geoffrey B. Gomery, who made a judgment in the case earlier this week. 

The province denied liability, saying its only role was to renew the state of local emergency declared by the district, and it was justified in doing so, and maintaining it since that time.

In a detailed outline of the reasoning for his decision, Justice Gomery explained how he weighed the issues in the case, including whether the public safety minister's renewals of the state of local emergency were unlawful, as well as an absence of the presentation of evidence from experts in the case.

"In the absence of any additional information or developments, the circumstances can no longer reasonably be characterized as an emergency… There has been ample time to secure public safety in Seawatch by alternative means," the judge said in part.

He said that he did feel the province encouraging and funding a fence blocking homeowners from their homes constituted nuisance, and noted that the plaintiffs only asked for special damages to cover out-of-pocket expenses they've had to take on as a result.

They weren't looking to claim capital losses for the damage to their homes, but did ask for money for rent since June 2019, damages the judge found Rosewall and the Lathams were entitled to.

For Rosewall, that sum, including the cost of moving and new furniture as well as rent, is $68,265.78. For the Lathams, it's $51,200, and Gomery said they're actually entitled to more than that, for their moving and storage expenses.

All three were awarded $40,000 per person for non-pecuniary damages as well, as they've been "entirely deprived of the use and enjoyment of their homes," he said.

The district was named as a defendant, but the plaintiffs discontinued their claims against it before trial. That decision was made following a Court of Appeal decision in a case against the district involving other residents of the neighbourhood.