Executive Summary: Key Legal and Evidentiary Issues

• Partial expropriation of the plaintiff's property was effected by statutory right-of-way and covenant rather than by fee simple acquisition, which the plaintiff contested as improper for highway purposes.

• Under s. 4(2) of the Expropriation Act, a party may not dispute the right of an expropriating authority in compensation proceedings, barring the plaintiff's challenge in the current action.

• Judicial review was the proper avenue to challenge Council's expropriation method, but the plaintiff failed to file within the 30-day limitation period under s. 51 of the Expropriation Act.

• The plaintiff's reliance on ss. 107 and 115 of the Land Title Act was rejected, as s. 115 permits but does not mandate use of a statutory right-of-way to register fee simple.

• No jurisdiction exists for the court to direct the Registrar to "restore title" under s. 383 of the Land Title Act, which governs the registrar's discretion rather than the court's authority.

• Costs of the application were awarded to the Township at Scale B, payable in any event of the cause, as the application was deemed misconceived and improperly brought.

The property and the expropriation

Xing Chen owned property at 20790 72 Avenue, located at the intersection of 208 Street and 72 Avenue in Langley, British Columbia. In November 2023, the Corporation of the Township of Langley carried out a partial expropriation of Mr. Chen's lands for the purpose of the 208th Street widening greenway and public infrastructure project. Mr. Chen did not dispute the expropriation itself and, in fact, filed a notice of civil claim on August 19, 2024, seeking compensation under s. 40 of the Expropriation Act. He received an advance payment of $264,000 from the Township via letter dated November 6, 2023, which he acknowledged in his pleadings.

Council's decision on the method of expropriation

On June 13, 2023, the Township's council considered two methods for carrying out the expropriation: acquiring a fee simple interest in the affected lands, or proceeding by way of a statutory right-of-way and s. 219 covenant. Other affected property owners preferred the statutory right-of-way approach because it allowed them to retain density from the expropriated areas for future redevelopment. Council opted for the statutory right-of-way and covenant method. A notice of expropriation was filed with the Land Title Office on September 22, 2023, and Council formally approved the expropriation on October 23, 2023. Vesting notices were signed on October 31, 2023, and subsequently filed with the Land Title Office on November 21, 2023.

The plaintiff's challenge and the orders sought

Mr. Chen, appearing on his own behalf before the Honourable Justice J. Hughes, took issue not with the expropriation itself but with the method by which it was carried out. He argued that because the lands were expropriated for highway purposes, the Township should have acquired a fee simple interest and removed the expropriated portion from his title. He sought several orders, including correction of the land title under s. 384.1 of the Land Title Act to remove the Form C registration, a declaration that the Township's filing of Form C was invalid under the Expropriation Act, and an order directing the Registrar of Land Titles to restore the title to the correct post-vesting state.

Statutory restrictions on challenging the expropriation

The court found that the plaintiff's application was fundamentally misconceived. Under s. 4(2) of the Expropriation Act, a person may not, in any proceedings under the Act, dispute the right of an expropriating authority to have recourse to expropriation. Since the underlying proceeding was a compensation claim predicated on the expropriation having occurred, the plaintiff could not use that proceeding to effectively challenge the method of expropriation. The court drew on the precedent of Seaside Acres Ltd. v. Pacific Coast Energy Corporation to reinforce that the proper means of challenging Council's decision was judicial review. Under s. 51 of the Expropriation Act, any such application had to be brought within 30 days after the order subject to review was made, and legal proceedings challenging the validity of an expropriation could not be brought after the land had vested under s. 23. Mr. Chen's window for judicial review closed, at the latest, on November 21, 2023, when the vesting notices were filed.

The court's analysis of the Land Title Act arguments

Even addressing the merits for completeness, the court rejected each of the plaintiff's submissions. Mr. Chen's argument that the Township improperly expropriated a fee simple interest before registering the statutory right-of-way was based on a misconception of the facts and a misinterpretation of s. 23 of the Expropriation Act. The evidence established that s. 23(3)—governing interests less than fee simple—applied, and the timing discrepancy between signing and filing vesting notices did not produce the legal effect the plaintiff claimed. The plaintiff conceded that s. 107 of the Land Title Act did not apply, and the court found that s. 115 provided only an option, not a mandate, to use a statutory right-of-way to register fee simple. Additionally, s. 383 of the Land Title Act, upon which the plaintiff relied to seek direction to the Registrar to restore title, was found inapplicable, as it governs the registrar's limited discretionary power rather than conferring authority on the court to grant such relief. The court cited Basque Improvement District v. Lischka to confirm that there is no appeal from a registrar's refusal to exercise discretion under that provision.

Ruling and outcome

Justice Hughes dismissed the plaintiff's application in its entirety, finding it misconceived and improperly brought within the underlying compensation claim. The Township of Langley was the successful party and was awarded costs of the application at Scale B, payable in any event of the cause. The court noted that Mr. Chen's separate claim for compensation under s. 40 of the Expropriation Act remains extant and is set for trial in June. No specific monetary amount beyond costs at Scale B was awarded on this application, as the exact quantum of Scale B costs was not determined in the decision.