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Judge orders B.C. to pay damages for ‘unlawful’ state of emergency caused by sinkholes

Justice Geoffrey Gomer wrote that a state of emergency cannot be used to delay action indefinitely
B.C. Judge Geoffrey Gomery has ordered the province to pay damages to homeowners for a nuisance claim over a long-term state of local emergency. (Image courtesy Creative Outlet)

A B.C. judge has ordered the province to pay damages to Sechelt homeowners who have been blocked from accessing their properties for three years after a local state of emergency was declared due to the threat of catastrophic sinkholes in their neighbourhood.

Sechelt’s Seawatch subdivision was built on an area that offers sweeping views of the Sechelt inlet on the Sunshine Coast. The homes, built in the late 2000s, are sizeable and sit in a highly valued region of the province.

There’s just one problem: the area is prone to sinkholes due to underground streams. The District of Sechelt allowed the subdivision to be built with a covenant on title that cleared the District of liability for allowing a subdivision to be built on land prone to instability.

READ MORE: Developer, government deny negligence in Sechelt sinkhole lawsuit

Several sinkholes have plagued the Seawatch neighbourhood over the years. In 2012, Seawatch residents and the District were startled by the sudden appearance of a large sinkhole in the middle of a roadway, immediately after a resident had passed through in her vehicle. Then in 2015, two more sinkholes appeared — one of which was so close to a home that it had to be abandoned.

On Christmas Day 2018, a 12-metre deep sinkhole formed in the neighbourhood. The sinkhole was investigated by Thurber Engineering Ltd. Thurber reported back to the District of Sechelt, saying that Seawatch should be evacuated as a “precautionary closure” to implement sinkhole risk management measures.

In response, the district placed residents on evacuation alert on Feb. 7, 2019, before residents were ordered to leave on Feb 15. The district declared a local state of emergency. The order was meant to last seven days but could be extended by B.C.’s public safety minister. Since then, the state of local emergency has been extended 138 times.

READ MORE: Fourteen ‘dream’ homes ordered evacuated as sinkholes open in Sechelt

Justice Geoffrey Gomery wrote that the initial state of emergency was justified for the first three months. He said the province was “unlawfully” extending the state of emergency as an excuse to allow inaction on the sinkhole issue.

“At present, almost three years later, in the absence of any additional information or developments, the circumstances can no longer reasonably be characterized as an emergency,” Gomery wrote.

He added that rather than extending the state of emergency, the District should have come up with a plan to address the geotechnical instability of the subdivision. Gomery found that the province’s involvement in constructing a fence to keep residents out of their homes constituted a nuisance.

Carole Rosewall and Gregory and Geraldine Latham were named plaintiffs in the case. Rosewall and the Lathams have been living in rental accommodations since the state of emergency was enacted. Both had significant investments and memories tied into their properties.

Rosewall moved into her Seawatch home with her father and nursed him through his final illness. Similarly, the Lathams nursed a close friend who was dying of cancer until he died in their house. The Lathams spent their life savings to purchase their home and described it as “the heartbeat of where we thought we’d be for the rest of our lives”.

Today, their homes are valued at just $2 according to BC Assessment.

Gomery awarded Rosewall special damages of $68,265.78 for rent paid from June 1, 2019, through January 1, 2022, and non-pecuniary damages of $40,000 for the loss of use and enjoyment of her home. The Lathams were awarded special damages of $51,200 and were each awarded $40,000 in non-pecuniary damages.


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