A B.C. Supreme Court justice has ruled that provincial officials had no authority to make an Oak Bay homeowner pay for an archeological survey of her property.
Justice Laura Gerow also ruled that the archeological branch’s treatment of Wendi Mackay, who lives at 2072 Esplanade along Willows Beach, constituted a nuisance.
According to court documents, Mackay said permits, costs associated with the resulting delay in construction and the property’s loss of value cost her about $600,000 — a total she said is now closer to $750,000, excluding legal fees.
The province may choose to appeal this decision. If it doesn’t, an arbitrator will consider the court’s findings in determining whether Mackay will be compensated.
“We needed this interpretation in order to go back to the arbitrator and say what [the archeology branch] did was a nuisance to the property and they didn’t have the statutory authority to do so,” said Brian Wallace, Mackay’s lawyer.
Mackay and her late husband purchased the property from her parents in 2006 with the intention of building a new house on the footprint of the old, with a small addition. There was nothing on the property’s title to indicate that there was anything of heritage value there, she said.
She found out later that, in 1971, archeological digs had taken place on her property. More than 850 artifacts were removed and a report was filed with the archeology branch.
Despite this earlier work, an architect hired by the Mackays was told by the branch that a site alteration permit would be required. To obtain the permit, the Mackays had to hire a archeologist to conduct a heritage inspection and file a report for the branch.
A heritage inspection cost Mackay close to $6,000, and indicated that excavation by hand would be required. Mackay hired an archeologist to obtain the permits and do the necessary work for $51,000.
Construction of the house was delayed for a year, increasing Mackay’s costs.
She brought a claim against the branch that was dismissed by an arbitrator. Mackay appealed to B.C. Supreme Court and lost. She took the matter to the B.C. Court of Appeal, which granted her leave to appeal.
Gerow’s ruling is the result of that appeal.
“In my opinion, the arbitrator failed to consider the relevant factors in this case, such as whether it is reasonable to require the petitioner to pay more than her fair share of the costs associated with providing a public benefit, being the collection and preservation of artifacts on the site,” Gerow said in her ruling.
Requiring Mackay to pay for a heritage inspection or investigation is outside the province’s statutory authority, Gerow said.
Wallace said the case sets a precedent.
“If it’s a public good, then one would think the public should have to pay for it,” the lawyer said.
Mackay said she feels that she no longer lives in a house that has a cloud over it.
“You feel like somebody is watching over your shoulder,” she said.
“I feel really relieved, much more comfortable with my house.”
