A bid to make the provincial government a defendant in a lawsuit over erosion and land slippage in the Quesnel area has been rejected by a B.C. Supreme Court Justice, largely because the plaintiff took too long to bring the matter to court.
The Cariboo Regional District is already a defendant in an action brought by Kenneth Wayne Byrd that dates back to February 2006. Byrd is claiming the CRD breached its duty of care by approving building permits when it ought to have known the property was subject to erosion or landslides.
Byrd had purchased the property in 1999 and declared in court documents that between November 2005 and July 2014, he had spent nearly $390,000 to stabilize the creek slope on the land to prevent it from collapsing.
Byrd said that he began the process of trying to name the provincial government as a defendant in August 2014 after he was advised the province could also be held liable and learned the CRD planned to blame the province for the trouble.
Byrd filed an amended notice of claim, alleging the provincial government breached its duty of care by failing to make a report on landslides in the Quesnel area available to the CRD; removing land from the property and so, creating a need to use till to extend the property's developable area; failing to examine the property prior to approving the subdivision and failing to require a geotechnical study prior to obtaining a building permit when the subdivision was approved.
Although he exceeded the six-year limitation period for bringing the matter to court, Byrd's counsel argued he had valid reasons for the delay in trying to name the province in the lawsuit.
The legal action had been proceeding slowly because Byrd could only periodically finance the lawsuit and it took a considerable amount of time for his lawyer to understand the issues, the positions of the parties and the various geological reports.
However, those reasons were not good enough for Justice Catherine Bruce, who noted Byrd's counsel knew of the report as early as October 2010 and found there was no satisfactory explanation for the further four-year delay.
Bruce noted it took more than eight years from the day he first filed the lawsuit to start the process of trying to bring the provincial government in as a defendant, a delay she said cannot be condoned despite the litigation costs.
"This is not a case where the plaintiff chose to be self-represented," Bruce said in a reasons for judgment issued Friday. "He retained counsel to pursue the action on his behalf and, as a consequence, must accept the onus on him to prosecute the case with due diligence."
A trial on the matter is set to begin on Monday in Quesnel, but Bruce expressed doubt it will go ahead, saying Byrd "will likely continue to prosecute his claim in a piecemeal fashion due to a lack of finances" resulting in further delay.
