September 30, 1999, E.C.B. No. 30/94/174 (68 L.C.R. 137)

REASONS FOR DECISION

1.  INTRODUCTION

The claimant, William P. Harshenin, is the registered owner in fee simple of land located at 2011 Broadwater Road near Castlegar, B.C., legally described as Parcel Identifier 011-959-657, Lot 21, Block 18, District Lot 237, Kootenay District, Plan 2933 ("Lot 21"). Lot 21 is situated in Robson, B.C., just north of Castlegar, on the north side of the Columbia River, at the corner of Broadwater Road and Pass Creek Road. In the early 1970s the claimant built and occupied a home on Lot 21. He continues to reside there with his wife, Diane Harshenin. The claimant is also the registered owner of a life estate in land located at 2021 Raspberry Road, legally described as Parcel Identifier 011-937-904, Lot 20, Block 18, District Lot 237, Kootenay District, Plan 2933 ("Lot 20"). Lot 20 is contiguous to and west of Lot 21. The claimant's daughter, Darlene Harshenin, is the registered fee simple owner of Lot 20. She lives in a mobile home situated there. Additionally, the claimant has a life estate in and easement over land legally described as Lot 22, Block 18, District Lot 237, Kootenay District, Plan 2933 ("Lot 22"). The claimant's son, Matthew Wayne Harshenin, is the registered fee simple owner of Lot 22 and lives on the property.

In 1994 the respondent, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Transportation and Highways, embarked on a project to construct and improve highway accesses to the new Robson Bridge spanning the Columbia River, which opened for traffic in November 1994. During September 1994 the respondent formally expropriated a small portion of Lot 21 in order to improve the intersection of Broadwater Road and Pass Creek Road in connection with that project. Broadwater Road (sometimes also referred to as the "Robson Access Road") provides the main access to the Bridge from the east. Paving work began on Broadwater Road in the vicinity of Lot 21 in the fall of 1994 but was left uncompleted until the spring of 1995.

The claimant filed with the board an application for determination of compensation (the "Form A") on October 6, 1994, asserting claims for, among other things, the market value of that portion of Lot 21 which was taken, diminution in value to the claimant's remaining land, and disturbance damages. Subsequent discussions between the parties resulted in last minute settlement of a number of the claims originally in contention. What the board has been left to determine primarily is the claimant's claim for compensation for damages to his residence on Lot 21 allegedly caused by the action of heavy vehicle traffic over the partially repaved surface of Broadwater Road in late 1994 and early 1995. A secondary issue remaining is the claimant's claim for what is described as "injurious affection" to his life estate in Lot 20. To avoid any confusion in terminology under the applicable legislation, I prefer to characterize this claim as being one for reduction in market value. No claim was pursued with respect to the claimant's interests in Lot 22.

I heard these compensation claims alone in my capacity as chair of the board and in exercising the powers and jurisdiction of the board pursuant to section 26(5) of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act"). Mr. Harshenin gave evidence on his own behalf and acted as his own counsel in the proceeding. The other witnesses for the claimant were two building contractors, Harold Nevokshonoff and Mike Makordoff, who had provided contract proposals for repairs to the claimant's residence. Witnesses for the respondent were the highway project supervisor, Michael Newton, who testified concerning the roadwork adjacent to Lot 21, and a professional engineer, Elmer Verigin, who testified concerning an inspection report he prepared on the claimant's residence.

2.  BACKGROUND

2.1  The Claimant and His Property

The claimant is a qualified carpenter who has worked in the construction industry for more than 30 years, initially in Victoria and the Lower Mainland of British Columbia but predominantly in the Castlegar area. He testified that he has a good general knowledge of residential construction and, in addition to carpentry, has some experience in wiring, plumbing, bricklaying and other associated trades. At the time of the compensation hearing, the claimant was unemployed.

The lands which are the subject of these proceedings were purchased by the claimant's father, Pete Sam Harshenin, about 1960. Fee simple title to the lands, including Lot 21, was transferred to the claimant by his father in October 1971. At that time the claimant was living and working in Surrey, British Columbia, but moved back to the Castlegar area with his family in or about July 1972. In September 1988, the claimant transferred title to Lot 22, subject to a life estate and easement in his favour, to his son. In October 1988, the claimant transferred title to Lot 20, subject to the life estate in his favour, to his daughter.

2.2  The Claimant's Residence

The claimant constructed a two-level wood frame, single family residence on Lot 21, beginning in the fall of 1972. The residence is located at the rear of Lot 21, well back from the driveway access point to Broadwater Road. The main floor living area consists of three bedrooms, a bathroom, kitchen, dining area and living room with a brick fireplace in the living room. There is also a covered walkway and enclosed sundeck on this level. A large portion of the full basement is above ground. The finished portion consists of a recreation room, bedroom, bathroom and laundry room plus a furnace room. There is a brick fireplace in the basement to which a wood air tight stove is connected. Two partly finished rooms adjacent are used as a workshop and a garage. There is also an attached carport.

The evidence was that the claimant did most of the work on the residence himself with the assistance of his immediate family in order to save costs. He testified that, apart from the excavation of the site, the spraying of the ceiling, and the necessary electrical and natural gas connections, he had made use of his considerable practical experience to select the construction materials and build the home. Among other tasks, he poured the foundations and slab, framed, roofed and insulated the residence, secured the floor joists and flooring, and did the drywalling, painting, panelling and tiling. He had, he said, also installed the kitchen cabinets, built the double fireplace, applied a waterproof coating to the sundeck, and prepared and applied the exterior stucco. The claimant during his testimony gave a detailed account of all the construction materials and methods he employed. However, a consideration of these, where relevant, might more usefully be deferred to that section of the decision which will examine the claimant's claims for damages to his residence.

The construction of the residence continued from the fall of 1972 until the early fall of 1973, when the claimant and his family moved in. At that point and in some cases for years thereafter, certain interior and exterior finishing work still remained to be done. For example, the bathroom plumbing work was not complete, slate tiles had not been installed on the fireplace hearth and windows had not been inserted in the workshop. On the exterior, the stucco work remained unfinished. No final coat of stucco has ever been applied.

2.3  The Expropriation and Subsequent Roadwork

On September 9, 1994, the respondent issued an expropriation notice and a certificate of approval of expropriation with respect to its partial taking of Lot 21 for the purpose of constructing and improving highway access to the Robson Bridge. Title to the lands which were taken, amounting to some 404 square metres (0.0998 acres) adjacent to Pass Creek Road, vested in the respondent on September 27, 1994. The respondent made an advance payment with respect to the land taken on September 14, 1994.

According to the evidence of Mr. Newton, the respondent's project at the intersection adjacent to Lot 21 involved widening the shoulders and creating a pass lane on Broadwater Road, improving the turning radius on Pass Creek Road, and paving the reconstructed portions. The highway approaches closer to the new Robson Bridge were already paved to finished grade when the bridge opened to traffic on November 1, 1994. However, the timing of the project in the immediate vicinity of Lot 21 was such that, with the onset of winter weather, the respondent was only able to complete a bottom lift of asphalt pavement in October 1994 and had to defer paving the top lift until the following late spring. This left a difference in elevation between the pavements which the respondent says amounted to 5.0 cm. but which the claimant says was more like three inches (7.62 cm.) In any event, it was necessary for the respondent to create a construction joint in the nature of an asphalt ramp or taper which would tie in the new bottom lift to the finished pavement on Broadwater Road in front of Lot 21 and minimize the impact on vehicle traffic. According to Mr. Verigin, whose evidence on this point was not disputed, the construction joint was located about 80 feet west of a perpendicular line through the centre of the claimant's residence and intersecting the roadway south of the residence.

It is clear from the evidence that, at some point during the succeeding winter, the taper began to wear out and pot holes developed causing the "bump" in the construction joint to become more pronounced. The claimant testified that the situation worsened particularly with the spring thaw. He also introduced photographic evidence to support his assertion that the respondent had put in two tapered ramps across the width of the roadway, leaving an untapered gap measuring perhaps eight feet between them. In a letter to the editor of The Castlegar Sun published in early March 1995 and entered in evidence at the hearing, the claimant described what he said was the effect on heavy truck traffic at that location as follows:

"The trucks were hitting the ramp with all their wheels 50 percent of the time and the rest of the time with 50 percent of their wheels. The other wheels would hit the space between the two ramps (like a speed bump)."

In turn, the claimant described what he said was the impact on his residence and his family life:

"Now, not only are the dishes rattling, the whole house is rattling. Sleep as we knew it is a thing of the past. The house is getting cracks in the drywall, stucco and fireplaces."

The claimant brought his complaints to the attention of the respondent, which made efforts during late March to do some temporary patching. However, the permanent final lift of asphalt pavement was not completed until some time in May 1995.

2.4  The Partial Settlement of Claims

During the week preceding the start of the compensation hearing, the parties reached a settlement respecting a number of the claimant's claims. In addition to the sum of $13,618 previously advanced, the respondent on July 7, 1998 delivered to the claimant a cheque for $26,439.82. However, the respondent initially misstated the monetary terms of settlement in an accompanying letter to the claimant and in a partial release of claim which, together with a consent dismissal order, it prepared and which the claimant mistakenly signed. The respondent corrected its error in a letter of July 9, 1998, but that error appears to have left a lingering suspicion in the mind of the claimant who, by the conclusion of the compensation hearing, was still reluctant to sign a new and corrected partial release of claim. During the compensation hearing, it also became clear that the parties disagreed somewhat as to the scope of the settlement since the claimant continued to advance at least one claim which the respondent said had already been settled.

In these circumstances, I consider it necessary to set out my view with respect to the settlement. I find as a fact that the parties did reach a binding settlement of all claims in dispute in this matter, except those which are expressly excluded in the partial release of claim. The respondent provided to the claimant an itemized list of all those claims which were encompassed by the settlement. They included compensation for the market value of the land taken, for the reduction in market value to the remainder, for disturbance damages to trees, a culvert, the drainage system and the driveway on Lot 21, for certain costs incurred by the claimant for engineering services, telephone and travel, and for accrued interest on the claims which were settled.

Those claims expressly excluded from the partial release of claim which were not settled and in respect of which no compensation has been paid concern the alleged damages to the improvements (that is to say, the residence) on Lot 21, alleged reduction in market value to the claimant's life estate in Lot 20, interest on the two foregoing items, and reasonable legal, appraisal and other costs (other than, presumably, the costs already paid on account of engineering services, telephone and travel). Each of the outstanding claims will be addressed in turn.

3.  DAMAGE TO THE RESIDENCE ON LOT 21

3.1  Observed Defects

There is ample evidence from both parties to confirm that various portions of the finishes to the claimant's residence on Lot 21 exhibited defects in the period leading up to the compensation hearing. Those defects are not expressly addressed in the claimant's statement of claim or the respondent's reply, both of which were filed with the board prior to the time when it is now alleged that the damage occurred. The pleadings have not since been amended. However, the list of observed defects is perhaps most succinctly set out in the inspection report prepared by Mr. Verigin. That inspection was carried out on June 3, 1998 in the presence of the claimant and in my view captures with reasonable accuracy what the claimant subsequently testified to as being the scope of the damage to his residence. The list is as follows:

(1)	Loosening or lifting of the floor, underlay and/or sheathing of the main floor assembly, causing creaks in the floor and damage to the linoleum flooring.
(2)	Similar movement in the floor assembly of the west deck and north walkway causing cracks in the seams of the waterproof deck coating with resulting leaks.
(3)	Cracks in the interior finishes including walls, ceilings and gypsum board valances.
(4)	Loosening and cracking of exterior stucco finishes on the residence.
(5)	Damage to the drainage system which carries site drainage, foundation drainage and roof drainage away from the residence.
(6)	Cracking of the masonry core and finish face of the fireplace.
(7)	Lifting of the floor tile in the basement hallway adjacent to the recreation room.
(8)	Drooping of the ceiling tile along the north wall of the recreation room.

During the compensation hearing the claimant referred in passing to other items of damage he attributed to the respondent's roadwork but in respect of which he said he was making no claim, notably leaks in the entry roof to his residence and in the roof of a detached woodshed on Lot 21, and cracks in the chimney and in a shower stall. It should also be noted that the fifth enumerated item dealing with the drainage system is one which was settled prior to the commencement of the hearing.

3.2  The Issues

Two issues for determination arise from the claimant's claim for compensation in respect of the observed defects. The first is a question of causation. Is the evidence sufficient to prove, on a balance of probabilities, that they were not the result of pre-existing problems of house design and construction but were instead caused by impact vibrations set off by heavy truck traffic hitting the construction joint in the surface of the roadway? If the first issue is resolved in the claimant's favour, the second issue to be addressed is one of quantum. Is there sufficient evidence upon which to quantify the claimant's damages?

3.3  The Claimant's Case

The claimant's case rests primarily on the testimony of the claimant himself about the construction of his residence in the early 1970s, the effect of truck traffic on Broadwater Road during the respondent's uncompleted highway project in late 1994 and early 1995, and the defects in his residence which he says he began to observe during the period when the temporary construction joint was in place. Unlike the respondent, the claimant did not commission an independent expert to inspect the residence and report on observable deficiencies or damage. He did not have at his disposal any studies in the nature of traffic counts or seismic readings at the location. Although the claimant did retain an engineering firm to conduct soil analyses in order to determine whether impact vibrations of the kind complained of could have been transmitted, the engineering report which resulted was not tendered in evidence at the hearing. The claimant did, however, introduce a number of photographs which he had taken both during and after the period of the roadwork depicting damage to his residence to support his assertion that there was a direct causal link between the two. He also submitted in evidence a scholarly article on construction vibrations published in a geotechnical journal.

The thrust of the claimant's testimony regarding his residence was to endeavour to prove that it had been well constructed in compliance with, and in some cases exceeding, building code requirements and that it exhibited no significant faults prior to the period of the respondent's roadwork. It is, in my view, sufficient to focus on construction details pertaining to those elements of the residence where defects were identified for which compensation has been claimed, notably the tiled floor and ceiling of the recreation room, the main floor area, the covered deck, the gyproced walls, ceilings and valances, the fireplace, and the exterior stucco. The claimant's evidence with respect to each of these elements is summarized in turn.

The claimant described the care he had taken in pouring the eight inch thick foundations and the four inch thick concrete slab on four inches of compacted gravel under the main portion of the house to avoid cracks from developing.

He explained that he had salvaged the main floor joists from a nearby breakwater and, to give added strength and stability, had installed them on 12 inch rather than 16 inch centres as required by the building code. He had used special "ardox" nails to fasten the diagonally sheeted shiplap to the floor joists and, in turn, to nail particleboard through the shiplap directly into the floor joists. He had, he said, laid down heavy flooring paper to separate the subfloor from the underlay. The object was to avoid any later "nail pops", lifting of the floor, and resulting squeaks.

With respect to the covered deck which also provided the roof over the workshop area, the claimant testified that he had used similar construction materials and techniques before applying a waterproof deck finish known as "spantex".

In constructing the walls and ceiling of the residence, the claimant indicated that he had used standard framing and sheathing materials and had insulated those areas with paperbacked fibreglas batt insulation under a 1/2 inch drywall finish. Even though he acknowledged that the building code required it, the claimant testified that he did not install a polyethylene vapour barrier in the walls or ceiling out of concern that it would seal in the house too tightly.

The claimant said little about the construction of the double fireplace, other than to confirm that he had had previous masonry and bricklaying experience. Similarly, in doing the exterior stucco work, the claimant had drawn on his experience in an earlier project. He testified that he had prepared the exterior walls in the usual way, using building paper and stucco wire before mixing the masonry cement, sand, and water in a wheelbarrow and applying a first "scratch" coat. He said a second coat was applied a year or two later. The finish coat has never been applied.

Although the claimant did acknowledge some cracks, squeaks or other small defects in the finishes to the residence prior to the respondent's roadwork, he testified that it was only when heavy vehicle traffic began pounding the construction joint on Broadwater Road opposite his residence that he began to observe real damage. As the claimant explained it, the opening of the new Robson Bridge had the effect of redirecting the flow of truck traffic past his residence that previously went through downtown Castlegar -- much of it enroute to a major pulp mill in the area. At first, the claimant testified, he experienced light bulbs blowing out, floor tiles in the recreation room beginning to lift, and ceiling tiles beginning to sag. He began to notice the occasional squeak in the floor and cracks in the joints of the waterproof deck coating where rain and blowing snow could enter.

By March of 1995, he said, the greater volume and speed of this traffic was contributing to the breakup of the tapered ramps, creating more drastic "bumping", and in turn, generating vibrations strong enough to do significant damage to his residence. According to the claimant, it was after a four square foot section of exterior stucco near the main entry door to his residence fell off, on or about March 15, 1995, that the claimant telephoned the respondent's highway manager to complain. By early April, he said, hairline cracks that had formed around the door frames and windows some time after the construction joint was initially created had opened drastically.

At the outset of the hearing the claimant submitted that his claim for compensation for damages to his residence on Lot 21 was in the sum of $16,650 together with an additional 10 per cent or $1,666 for inconvenience. The claimant later sought to put in evidence three contract proposals he had obtained for repairing the damages to his residence. However, the respondent objected to the admissibility of those proposals unless the contractors who had prepared them were made available for cross-examination. Ultimately, two of those contractors attended at the hearing as witnesses and were qualified as experts in the field of house construction and repair. Their contract proposals were entered in evidence.

The first witness, Harold Nevokshonoff of Nevo Construction Ltd., had prepared a contract proposal dated December 4, 1996. It proposed to replace existing carpet and vinyl flooring as well as 3/8 inch plywood, screw down the flooring in the entire house, fill cracks in and repaint the walls and ceilings, seal joints in and repaint the sundeck, and replace the stucco which had fallen off. The quoted price for this work was $10,200. Mr. Nevokshonoff appeared to have little recollection of the nature and extent of the damage, did not provide a breakdown of the costs of these various items, and was not certain whether the quotation included an amount for goods and services tax.

The second witness, Mike Makordoff of Shermak Construction Co. Ltd., had provided a proposal dated December 2, 1996. His quotation included repairing the stucco where required, filling and sanding all cracks on the walls and applying one coat of paint to those areas, and sealing the joints on the sundeck floor and walkway and applying a coat of spantex. Mr. Makordoff's proposed remedial work to the floors differed from that of Mr. Nevokshonoff. With respect to the carpeted areas, his proposal was to remove all underlay and carpet, install black building paper under 3/8 inch plywood, screw down the plywood to the existing joists, and then reinstall (but not replace) the underlay and carpet. With respect to the existing linoleum, Mr. Makordoff proposed installing 3/8 inch plywood over the affected areas, screwing the plywood down to the existing joists, and laying new linoleum. The quoted price was $16,000 plus goods and services tax of $1,120 for a total of $17,120. Mr. Makordoff testified that, since having provided the quotation, he had closed his company and disposed of his business records. Therefore, he also was unable to give a breakdown of the costs for the various proposed items of repair.

3.4  The Respondent's Case

The respondent says the claimant bears the onus of proving that the observed defects in his residence were the result of the respondent's roadwork and not some other underlying factor. According to the respondent, this is not a situation where the fact of damage points clearly to its cause. Rather, it is one where probative evidence is required. In the respondent's submission, the claimant has failed to adduce such evidence, either with respect to the state of his residence both before and after creation of the temporary construction joint in the highway or with respect to the alleged impact of traffic hitting that joint. The respondent says the claimant had every opportunity to marshall expert evidence on these matters but chose not to do so.

The respondent's case relies primarily on the inspection report of Mr. Verigin, who was qualified at the hearing as an expert in residential wood frame construction. The respondent submits that the inspection report provides more plausible explanations than those offered by the claimant for the various defects observed in the claimant's residence.

Mr. Verigin testified that his approach had been to inspect the residence in company with the claimant, confirm the construction materials and methods which the claimant said he had used, listen to the claimant's explanations for the defects noted, and make his own observations as to their nature and probable cause. Mr. Verigin said that all investigations under the finishes of the residence were made with the claimant removing the finish and that all photographs which appear in the report were made with the knowledge of the claimant. No destructive investigations were made and no instrumentation readings of any kind were taken.

A central focus of the inspection report was on moisture content in the residence both during and after its construction. For example, the report questioned the use of floor joists which had earlier formed part of a breakwater. The claimant confirmed that they had been under water for approximately 10 years previously. Mr. Verigin observed that wood in contact with water evaporating from a water surface and from the elements such as a wharf would have a high water content and would need to be adequately dried before use. Beyond that, the report notes the claimant had only activated the furnace after the residence was completed and he and his family had moved in. This was nearly a year after construction began. According to Mr. Verigin, it is standard building practice to have heat in the residence during the later stages of construction in order to bring all the moisture content of materials to the same level as that which will occur in the finished use of the residence. The object is to avoid shrinkage which could result in lifting of the floor system with resulting squeaks and cracking at the corners of framed walls, windows and ceilings.

The report also identifies the claimant's acknowledged lack of a vapour barrier on the heated side of insulation next to the drywall finishes as a likely source of observed defects in the walls and ceilings. As the report explains it, heated air moving to the exterior would result in condensation in the wall and ceiling spaces as it came in contact with the cold. This, in turn, would cause seasonal expansion and contraction of the finish material as well as the framing. In Mr. Verigin's opinion, the absence of a vapour barrier in the ceiling over the workshop, combined with lack of ventilation of the dead air space between the insulation and underside of the covered sundeck, would have created a particularly acute problem. It would, he said, have resulted in a great deal of movement in the joists, shiplap and underlay, undermining the integrity of the joints in the waterproof membrane on the deck and perhaps also causing the ceiling finish in the workshop to fail. Mr. Verigin reported that the claimant told him cracks had already developed in the joints of the spantex waterproofing in 1989 and that he had simply applied more spantex over the failed joints without further preparation.

According to Mr. Verigin's inspection report, other faulty construction techniques also likely contributed to the defects which he observed. His additional comments on those elements of the residence exhibiting damage may perhaps best be dealt with in the same order followed when summarizing the claimant's case.

Although the claimant, as he testified, may have taken care in pouring the concrete slab in the basement, Mr. Verigin suggests that the failure to install an expansion joint where the slab meets the downstairs hallway to allow for the normal shrinkage of concrete may account for the lifting of floor tiles in the recreation room.

With respect to the main floor area, the unusual practice of nailing the particleboard underlay through the shiplap directly into the floor joists made "nail pops" and lifting of the floor more probable with shrinkage of the joists.

With respect to the sundeck, failure to follow the customary practice of either providing drains in the middle of the floor or sloping the deck to a scupper at the edges left water standing which over time probably deteriorated the surface.

The vertical cracks which Mr. Verigin noted at the top of each window indicated to him that the drywall joint was also located there rather than, as is normal practice, at a stronger point some distance over the header. The cracks visible at the edges of the valances were also said to be, in part at least, the likely result of lack of proper support in their construction. As for sagging ceiling tiles, the inspection report observed that the tiles appeared to be unsupported at the joint of ceiling to wall.

Mr. Verigin said he was unable to determine the age of the vertical cracks in the rough masonry core of the fireplace and the hairline cracks in the brick facing. However, since the claimant evidently advised him that it was his practice to "hot fire" the chimney to remove the accumulation of soot from time to time, Mr. Verigin concluded that this practice might be the cause of the cracks. As he explained it, when chimneys are "hot fired", the temperature becomes too hot for the normal expansion of the surrounding masonry.

Finally, with respect to the exterior stucco, Mr. Verigin stated that he had been told by the claimant that every corner of the stucco wall already had a vertical crack prior to the time when the respondent began its highway construction in the vicinity. According to the inspection report, such cracks are normal to a stucco finish in non acrylic applications. Beyond that, the report suggested that improper mixing and application of the first or "scratch" coat, improper bonding of the second coat to the first, and the absence of a final stucco coat application might all have contributed to a natural action whereby a portion of the second coat ultimately failed. Mr. Verigin speculated that, if the highway construction was the source of the failure, he would have expected considerably more of the stucco to have fallen off.

Since Mr. Verigin had not inspected the residence prior to 1994, he said he could only draw on his experience of deficiencies in other buildings constructed under his supervision in order to reach conclusions as to their likely cause in the present instance. He testified that, although he had done no seismic testing, he had turned his mind to the question of whether vibrations emanating from the highway could reasonably have loosened structures in the house or caused it to settle. He reached the conclusion that this was not a viable explanation in the circumstances.

The respondent submits that, even if a causal link could be proven between the roadwork and some elements of damage to the residence, the claimant has failed to quantify his reasonable damages in such a way as to make an award of compensation feasible. Neither of the contractors who provided quotations for repair and testified at the hearing concerning them made any allocation of costs as between the various items of damage claimed. Neither quotation referred to repair of the masonry core and finish face of the fireplace while one of them, that of Mr. Nevokshonoff, contemplated replacement of existing carpet, vinyl flooring and underlay even though the claimant at the hearing did not appear to be suggesting that such replacement was needed. Furthermore, in the respondent's submission, the claimant's monetary claim for the cost of repair has failed to make any adjustment either for those pre-existing defects in the residence which the claimant himself acknowledged or for any betterment to the residence which would result. As to the additional claim for 10% of the cost of repair for inconvenience, the respondent says this is a claim in the nature of non-pecuniary damages which is unknown to the law. In support of that proposition, the respondent cites the judgment of the British Columbia Court of Appeal in Patterson v. British Columbia (Ministry of Transportation and Highways) (1997), 62 L.C.R. 89 at pp. 103-107.

3.5  The Board's Determination

After considering all of the evidence and argument on the question, I conclude that the claimant has failed to prove, on the balance of probabilities, that the observed defects in his residence were the result of the respondent's roadwork. Because I agree with the respondent that the claimant has the onus of proof, it is unfortunate, in my view, that the claimant did not avail himself of independent expert evidence concerning his residence and the alleged effect on it of impact vibrations from the highway. It is also unfortunate, given the difficulties in presenting a case of this nature, that the claimant was not legally represented at the compensation hearing. The claimant had retained legal counsel from the time of the expropriation but that counsel had ceased to act two weeks before the hearing was set to begin. The claimant explained his decision not to retain new counsel by saying that he did not wish at that point to do anything which might delay getting his case before the board.

In reaching my conclusion, I accept as a general proposition that impact vibrations could cause damage to a residential structure of the kind observed here. This is confirmed by John F. Wiss, the author of "Construction Vibrations: State-of-the-Art" in the February 1981 number of the Journal of the Geotechnical Engineering Division, an article tendered in evidence by the claimant. The author identifies the type of building, type of soil, distance from the source of vibrations, and the cumulative effect of vibration as being among the criteria to be considered. Although damage is more often the observed result of heavy construction work such as pile driving and excavation blasts, it is clear that the action of heavy machinery and of traffic may also do damage in some circumstances. What is lacking in the present instance, however, is some evidence to demonstrate the probability that impact vibrations caused by trucks hitting a two or three inch high construction joint in the highway would be transmitted through the soil with sufficient strength and frequency so as to cause various items of damage to a residence situated some 80 feet away.

It is not always the case that expert evidence is required to prove damage to property associated with highway construction. In Bill's Frontier Restaurant Ltd. v. British Columbia (1994), 53 L.C.R. 175 at pp. 191-192, the board considered a claim for roof repair to a restaurant building situated in the immediate vicinity of highway work. The owners' allegation, which was unsupported by any formal report, was that vibrations from highway machinery caused the four year old roof to crack from one end to the other, resulting in leaks and water damage in the restaurant. However, there was evidence that the roof had not leaked prior to the time that heavy machinery was working in the area. Furthermore, the resident superintendent of the construction project testified to the presence of heavy caterpillar tractors and pneumatic compactors weighing from 13 to 40 tons, working within 30 feet of the restaurant. The anticipated effect was such that owners, he said, were often warned of the vibration and were told to remove glasses and other items from their shelves. He added that he had known footings to crack as a result of the vibration. The board found the superintendent to be an informed and neutral witness and accepted his evidence of the vibration caused by heavy machinery working close to the restaurant. It held that the owners in this case had met the onus of proving their loss and awarded them compensation for the roof damage. However, in my view, the Bill's Frontier Restaurant decision is clearly distinguishable from the present matter both in its factual context (for example, the proximity of the building to the roadwork and the nature of heavy equipment in use) and in the supporting evidence which the owners were able to adduce.

Only the respondent produced an expert report in these proceedings and that report set out alternative explanations for every one of the items of damage which the claimant has attributed to the respondent's roadwork. Although some of Mr. Verigin's conclusions entered the realm of speculation, I found his evidence on the whole to be well documented and highly persuasive. In my opinion, the report provides cogent reasons for not holding the respondent liable, on a balance of probabilities, for the itemized damages to the residence. The claimant appeared not always to be in agreement with what Mr. Verigin reported him as having said, particularly about earlier defects in the residence -- for example, pre-existing wall and ceiling cracks, cracks in the waterproof decking, and cracks in the exterior stucco. However, on such matters, I prefer the evidence of Mr. Verigin over that of the claimant. The earlier defects, while not in themselves fatal to the claimant's case, did create a difficulty which only better evidence might have helped to overcome.

Because the threshold question of causation has not been answered in the claimant's favour, it is unnecessary to consider the second question of quantum of damage. Assuming that quantum had remained an issue, however, I have already noted the deficiencies in the evidence provided by the claimant going to such matters as the itemized cost of repair and any adjustments for pre-existing defects and for betterment. What has not been noted thus far, but should perhaps be added, is that the two contractors called to testify by the claimant about their quotations for repair were not especially helpful to the claimant's case, particularly when under cross-examination. They tended, in fact, to support Mr. Verigin's opinions in some matters. Mr. Nevokshonoff said working with stucco required specialized skill and he expressed some doubt as to whether the claimant in this instance had properly applied the stucco coats. Mr. Makordoff agreed with the respondent that it was inappropriate to use wet wood from a breakwater for floor joists rather than kiln-dried lumber. He also confirmed the standard practice, not followed by the claimant, of putting heat in the residence prior to occupancy in order to dry out the various elements. Both contractors identified the lack of a proper vapour barrier in the house as being the possible source of some of the claimant's problems.

Accordingly, the claimant's claim for compensation from the respondent in respect of the defects to his residence situated on Lot 21 is denied.

4.  REDUCTION IN VALUE TO THE LIFE ESTATE IN LOT 20

4.1  Scope of the Claim

At the outset of the compensation hearing, the claimant asserted two distinct monetary claims arising out of his interest as the registered owner of a life estate in Lot 20. The first claim was, in effect, for the reduction in market value of Lot 20 which the claimant says was diminished by $4,000 as a result of the respondent's highway project. The second claim was for damage to the mobile home on Lot 20 occupied by his daughter. The amount claimed by the claimant in this respect was $1,850.

The respondent took issue with the claimant's assertion of a claim in respect of the mobile home. In the respondent's submission, this claim was encompassed within the partial settlement which occurred shortly before the hearing began. The claimant, as I understood him, ultimately agreed that this was the case and did not pursue the claim. Accordingly, the claim to be determined is based simply on reduction in market value as described above.

4.2  The Issues

Potentially, several issues for determination arise from the claimant's claim for compensation in respect of his life estate in Lot 20. First, since the parties agree that the respondent did not take any steps pursuant to the Act to expropriate Lot 20 or any part of it, the threshold question becomes whether in these circumstances there is any right to compensation. This, in turn, appears to require a consideration of section 40(6) of the Act. Second, assuming there is a right to compensation, does the claimant's life estate have a market value? Third, if it does, is there evidence to prove that there has been a reduction in that value? Finally, does the evidence show, on a balance of probabilities, that any such reduction was caused by the respondent's highway project in the vicinity?

4.3  The Claimant's Case

Since at the compensation hearing the claimant himself did not address a number of the issues identified above, I have referred where necessary to his Form A application. With respect to the threshold question of entitlement to compensation, it would appear that the claimant relies on the assertion that Lot 20 and Lot 21 as well as Lot 22 are adjoining and contiguous and are used for residential purposes by the claimant to provide homes for himself and his family. Presumably, these allegations of fact form a basis for contending that the claimant's case falls within section 40(6) of the Act which provides:

40.	(6)	For the purposes of this section, expropriation of part of the land of an owner occurs only if
		(a)	he or she retains land contiguous to the expropriated land, or
		(b)	he or she owns land close to the land that was expropriated, the value of which was enhanced by unified ownership with the land expropriated.

The claimant did not suggest that his life estate interest in Lot 20 was marketable in the conventional sense, nor did he commission a market appraisal of that interest. He appeared to be proceeding in the belief that the life estate provided him with some reversionary right to the fee simple of Lot 20 should his daughter predecease him.

With respect to the claimant's claim that his interest in Lot 20 has been reduced in value as a result of the expropriation from Lot 21 and the construction of the works by the respondent, the Form A makes reference to a number of alleged consequential effects. These include more difficult, dangerous and restricted access, loss of privacy, the loud and constant noise of increased heavy truck traffic, the adverse effect of a high and unsightly gravel bank replacing previous views of forest and the Columbia River, and the impact of the respondent's future snow removal activities and use of chemicals on or near the highway. It is also alleged that the expropriation, in addition to resulting in a smaller parcel size for Lot 21, adversely impacts the usability, developability and value of the other lands owned by the claimant's family, including Lot 20.

The claimant produced in evidence a copy of a decision notice issued by the court of revision with respect to the 1996 property assessment for Lot 20. Originally the assessment had been fixed at $40,900 for the land and $37,700 for the buildings resulting in a taxable value of $78,600. On appeal by the claimant the court of revision reduced the assessment to $38,400 for the land and $36,200 for the buildings resulting in a taxable value of $74,600. It is the $4,000 difference between the original and revised assessments on which the claimant relies in his claim for reduction in market value.

4.4  The Respondent's Case

The respondent contends that, because there has been no expropriation from Lot 20, no compensation is payable in relation to the claimant's claim for reduction in market value to his life estate. What occurred in this instance was a partial taking of Lot 21 and, according to the respondent, any claim for compensation with respect to Lot 20 must first meet one of two alternative tests set out in section 40(6). The respondent submits that neither test is met. First, although it is an agreed fact that Lot 20 is contiguous to Lot 21, the respondent says that Lot 20 is not contiguous to the expropriated portion of Lot 21 and therefore fails to satisfy section 40(6)(a). The respondent relies on the following interpretation of "contiguous" provided by the Manitoba Court of Queen's Bench in Re Municipal Act Re Assessment Appeal of Vermeulen (1958), 65 Man. R. 308 at p. 312:

Contiguous must be given its ordinary meaning which is "touching, in contact; meeting or joining at the surface or border; in actual contact."

Second, although Lot 20 is close to the land that was expropriated, satisfying the first part of section 40(6)(b), the respondent says there is no evidence that its value was enhanced by unified ownership with the land expropriated. Therefore, the second part of that test is not met. The respondent relies on discussion of the applicable principles by the Judicial Committee of the Privy Council in Sisters of Charity of Rockingham v. The King (1922), 67 D.L.R. 210.

The respondent casts doubt on whether a life estate such as that held by the claimant in Lot 20 has a market value in the sense that such an interest could be sold or traded. Even if it does, the respondent submits there is no useful evidence here upon which to value that interest or any alleged reduction in its value that is directly attributable to the taking or that has resulted from the construction or use of the works for which the expropriated land was acquired. As in the case of damages to the residence, the respondent says the claimant has failed to discharge his onus of proof. Although the claimant could have instructed an appraiser to consider the question, no appraisal evidence was produced.

According to the respondent, the only evidence of quantum, which is that derived from the decision of the court of revision, should be accorded no weight. That decision, the respondent maintains, related only to the re-assessment of Lot 20 for taxation purposes, had nothing to do with the life estate interest, and provided no indication as to why the taxable value was reduced by $4,000.

4.5  The Board's Determination

I have concluded that, whether or not the claimant at law has a right to compensation under section 40(6), his claim arising from an alleged reduction in market value to his life estate in Lot 20 cannot succeed in any case because of a lack of probative evidence on the valuation issues involved.

That being so, it is not strictly necessary for me to decide whether, for the purpose of section 40(6)(a), Lot 20 could be said to be "contiguous" to the expropriated land. In that respect I would merely observe that there is some case authority to suggest that the language of that provision may be given a broader interpretation in the expropriation context than that adopted in Re Vermeulen: see Wilson v. City of Sudbury (1971), 1 L.C.R. 37( Ont. L.C.B.) at pp. 381-2; McPhail's Equipment Co. v. Surrey (City) (1995), 57 L.C.R. 57 (B.C.E.C.B.) at pp. 67-69.

Equally, it is unnecessary to decide whether, for the purpose of section 40(6)(b), the value of Lot 20 could be said to have been enhanced by unified ownership with the land expropriated. Given the nature of a life estate, it is at least arguable that Lots 20 and 21 are held under something like unified ownership and that some increment of value to Lot 20, reflected perhaps in highest and best use, results from its combination with Lot 21. However, the question of enhanced value is one upon which, in my view, relevant valuation evidence would be needed.

On the question of valuation, I am satisfied from my reading of appraisal authorities that the claimant's interest in the nature of a life estate possesses value, although not for the reason indicated by the claimant. As I endeavoured to point out during the hearing, the claimant was mistaken at law in his apparent belief that the value of his interest derives primarily from his right to fee simple ownership in the event his daughter predeceases him. In that case, I am of the view that the fee simple would pass in accordance with the terms of his daughter's will or, alternatively, in accordance with the law of intestacy.

A "life estate" has been defined as "the total rights of use, occupancy, and control, limited to the lifetime of a designated party" who is referred to as the "life tenant": see Appraisal Institute, The Appraisal of Real Estate, Canadian Edition (1992), p. 114. Where the life tenant is in occupation of the property and pays no rent, the value may be based on rent savings to the tenant over the tenant's predicted remaining life, using actuarial tables and an appropriate discount rate. Life estates can be mortgaged. There may also be income accruing to the holder of a life estate from the property. The curious feature of the life estate enjoyed by the claimant in this instance is that there was nothing to suggest that the claimant has actually exercised the rights of use or occupancy over Lot 20. That property appears to have been exclusively occupied and used by his daughter since the late 1980s. Nevertheless, the life estate undoubtedly gives the claimant a large measure of actual control over Lot 20 during his lifetime, including the prospect of occupancy and use should he so wish in the future.

What is at issue here is the "market value" of the claimant's interest, as that term is defined in the Act, and any reduction in that value. Section 32 of the Act provides:

32.	The market value of an estate or interest in land is the amount that would have been paid for it if it had been sold at the date of expropriation in the open market by a willing seller to a willing buyer.

Although I am inclined to agree with the respondent that there is likely not much of a market for life estates in the real world, this does not preclude a market valuation using accepted appraisal techniques. The definition of market value in the context of an expropriation presupposes the presence of notional buyers and sellers in a notional open market. As I understand it, the appraiser would normally proceed to estimate the market value of Lot 20 as its unencumbered fee simple value but, because in this instance the property is encumbered by a life estate, the market value of the fee simple interest would necessarily be discounted. The difference between the encumbered and unencumbered fee simple value would represent the market value of the life estate. A similar appraisal exercise might be undertaken to estimate any reduction in market value such as has been alleged in this instance.

Unfortunately for the claimant, his claim for reduction in market value of his life estate, however small, appears not to have been referred to a qualified expert in real estate appraisal for consideration and, consequently, no appraisal evidence was produced. The only evidence brought to bear on the issue of valuation by the claimant is the property assessment information contained in the decision of the court of revision. I agree with the respondent that this information is not a reliable indicator of fee simple market value and is no indicator at all of the market value of a life estate. There is also a complete absence of evidence to link the downward revision in taxable value of Lot 20 by the court of revision to the impact of the respondent's highway project. As for the various alleged negative impacts of that project set forth in the claimant's Form A, no evidence was led at the hearing to support those allegations.

For all of the foregoing reasons, the claimant's claim for compensation for reduction in market value to this life estate in Lot 20 is denied.

5.  INTEREST

Because the claimant has been awarded no compensation for the two claims which he pursued to hearing -- damages to his residence and injurious affection to his life estate -- it follows that no interest is payable by the respondent to the claimant with respect to those claims under section 46 of the Act.

6.  COSTS

As I indicated earlier, the parties have not settled the issue of costs. The claimant maintains his claim for reasonable legal, appraisal and other costs necessarily incurred for the purpose of asserting his claim for compensation or damages pursuant to section 45 of the Act. The claimant, in pursuing his claim, ultimately succeeded in obtaining through settlement additional compensation beyond the amount of the initial advance payment. Nevertheless, the claimant having failed to obtain an award of compensation with respect to those remaining claims which he pursued to hearing, I am of the view that section 45(5) applies to this matter, giving the board a discretion as to costs. In my opinion, those claims should never have been brought before the board without better evidence and preparation. However, neither party addressed the issue of costs during the compensation hearing, and I am reluctant to fix an award in all of the circumstances without first giving the parties an opportunity to present evidence and argument on point. Accordingly, I make no order as to costs, pending a further application should one become necessary.