A B.C. judge has ordered the province to pay hundreds of thousands of dollars to Sunshine Coast residents forced from their homes by the threat of giant sinkholes and an endless state of emergency no one seems to be trying to fix.
According to a ruling issued Tuesday, neighbours Carole Rosewall and Gregory and Geraldine Latham have been left in "limbo" by a 2019 evacuation order and a provincially-funded fence that kept them away from their properties while squatters and vandals moved in.
The state of local emergency that justified the initial order was supposed to expire in seven days and could only be renewed with the approval of B.C.'s Public Safety Minister — something that has happened at least 138 times since February 2019.
Justice Geoffrey Gomery says the first order was justified but after about three months, the continued renewal of the emergency order "has provided an excuse for inaction" on the part of the District of Sechelt and the province.
"It seems that there has been no incentive for anyone to take steps to address the geotechnical instability of the subdivision," Gomery said.
The judge found that by "unlawfully" maintaining the state of emergency and by "encouraging and constructing" a fence barring access to the properties, the province caused a nuisance to Rosewall and the Lathams.
"Ms. Rosewall and the Lathams have each moved into rental accommodation and paid rent that they would not have had to pay if their homes were available to them," Gomery wrote.
"[They] eloquently describe the dismay, disruption and unhappiness they have suffered because of the loss of the use and enjoyment of their homes and the ongoing uncertainty as to when, if ever, they will reacquire possession."
Homes assessed at $2
Gomery's ruling is the latest chapter in the saga of the 'Seawatch' subdivision.
Graced with "splendid" views of the Sechelt Inlet, the large, modern, comfortable homes Rosewall and the Lathams bought with their life savings in 2008 should be worth millions today.
Instead, they were recently assessed at just $2 a piece — one dollar for the land and one for the buildings.
The titles on the retirees' homes contained covenants that B.C.'s Court of Appeal would release the District of Sechelt from liability for approving development in an area prone to instability from underground streams.
The first sinkhole appeared in 2012, followed by two more which forced the abandonment of a home in 2015.
On Christmas Day in 2018, a 12 metre-deep sinkhole opened up on the roadway, leading to the evacuation order, which was grounded in the district's declaration of a state of local emergency under B.C.'s Emergency Power Act.
The province argued that the concept of an emergency should not be restricted by a time limit. But Gomery disagreed.
"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.
The judge said that after 13 weeks it was no longer reasonable to keep approving the state of emergency without evidence of a plan "to investigate and address the risks to public safety."
"What was required was something more than just an indefinite evacuation of the subdivision," Gomery wrote.
'A tragic tale of covenants on title'
Jason Gratl, the lawyer for Rosewall and the Lathams, said the decision was timely given the heat, fire, floods and cold weather that have battered B.C. in recent months.
"The government has a lot of resources to respond to crises and can do so without activating emergency powers indefinitely," Gratl said.
"So the implication is that when it comes to crises, even including emergency, unpredictable and unforeseen crises the government should consider using the ordinary powers available to them to respond to those problems rather than indefinitely invoking emergency powers."
The judge ordered the province to pay Rosewall more than $68,000 and the Lathams $51,200 to cover rent, moving and furniture costs from June 1, 2019 to January 2022.
He also awarded each individual $40,000 in special costs for the loss of use and enjoyment of their homes.
"The plaintiffs lived in their houses from 2008 to February 15, 2019. Ms. Rosewall moved in with her father and nursed him there in his final illness. Similarly, the Lathams nursed a close friend who was dying of cancer until he died in their house," Gomery wrote.
"[They] collected memories in their homes, and expected to continue doing so. Mr. Latham describes the home he shared with Ms. Latham as 'the heartbeat of where we thought we'd be for the rest of our lives.'"
Ron Usher, general counsel for the Society of Notaries Public of B.C., uses the Seawatch case to teach young notaries about the dangers of overlooking significant clauses hidden in sales contracts and land title paperwork.
"It's such a tragic tale of covenants on title and the devastating effect they might ultimately have for you," Usher told the CBC.
"It's so easy in our enthusiasm for real estate purchase to overlook and I just can't think of a more tragic tale than the Seawatch subdivision."