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Settlement appeal dismissed in case of destroyed Bowen boat

Judge rules $5,000 was enough for municipality to pay in damages after salvaging error
Mannion Bay
Mannion (Deep) Bay in 2021.

The BC Court of Appeals has upheld a provincial Supreme Court decision in the case of an unlawful boat destruction.

The June 14 Appeals Court decision came just over two years after a June 4, 2021 BC Supreme Court judge awarded Bowen resident Joel Lepage $5,000 in damages from Bowen Island Municipality (BIM). Justice Peter Edelmann determined BIM improperly destroyed Lepage’s boat, a 32-foot sailboat named Celeste, in January 2016.

Lepage appealed this amount to the provincial Appeals Court, claiming several points of error by the Supreme Court judge. Lepage had sought $200,000 in damages in the original case.

The dispute dates back to Jan. 19, 2016 when the Celeste broke free from her mooring in Mannion Bay (Deep Bay) and ran aground, later sinking. Lepage was living aboard another boat at the time, Zen State, which was also moored in Mannion Bay.

The BIM bylaw officer at the time, Bonnie Brokenshire, investigated the wreck and notified Transport Canada, expressing concern about environmental damage to eelgrass in Mannion Bay as well as potential damage to a nearby resident’s dock. A search returned no records indicating an owner of the boat. As a result Transport Canada authorized BIM to salvage what remained of the Celeste, which was carried out on Jan. 20. The next day the boat was fully destroyed and all its parts and contents shipped off-island to be disposed.

Justice Edelmann found that while the salvaging was legal, and approved by Transport Canada, the subsequent destruction and disposal of the entire boat was not. BIM conceded this was an error on their part, and the case moved on to determining damages.

While Lepage did not have official documents proving he was owner of the boat, Justice Edelmann found “Mr. Lepage had physical possession of the sailboat from 2004–2016 and that he personally occupied it for many of those years,” adding that Lepage never abandoned it. Lepage said he paid $40,000 for the boat, but couldn’t prove this.

The fact the boat had already sunk factored into the judge’s decision. An expert testified that a similar sailboat in good condition could be worth up to $10,000. But for a sunken version, “the market value would diminish to virtually zero”. Edelmann concluded the Celeste therefore “had no realistic market value after it was salvaged.”

The judge also considered claims from Lepage seeking sentimental damages and compensation for work he’d performed on the boat over the years. Edelmann dismissed the sentimental value argument, and concluded that since the boat had already sunk prior to salvaging, BIM was not responsible for any damages to that point. He found $5,000 “would adequately compensate Mr. Lepage for the loss he proved at trial that was directly attributable to the wrongful conduct of Bowen Island.”

In his appeal of the Supreme Court finding, Lepage argued that the judge erred by finding the sailboat had already sunk, that he wasn’t the legal owner of the boat, and that sentimental value was not considered. Justice Joyce DeWitt-Van Oosten of the BC Appeals Court heard the case and rendered her decision this summer.

On the matter of whether the boat was sunk or not prior to salvaging, photographs were provided that showed Celeste underwater with only part of a mast protruding on Jan. 19, 2016. Lepage acknowledged the pictures were of his boat but claimed the salvage company “dragged it… over the rocks and sunk it and then barged it.” Since Transport Canada had approved the salvaging based in part on the same photos provided, DeWitt-Van Oosten concluded the boat was already sunk prior to the salvage company’s involvement with the matter.

Regarding ownership of the boat, the judge found that even if Lepage could prove ownership it wouldn’t have affected damages because the boat had already sunk when BIM became involved. She added that regardless, the original settlement already factored in the destruction of both the boat and its contents.

Finally, dealing with claimed sentimental value, DeWitt-Van Oosten said “Mr. Lepage asserted a sentimental attachment in his testimony, but it is unclear to me how that could have been measured with any degree of certainty on this evidentiary record… Mr. Lepage cites no authority in support of his position that the failure to account for sentimental value in an action for conversion constitutes a clear error in principle.”

Justice DeWitt-Van Oosten ultimately determined “This was not a complicated trial. The judge (Edelmann) was alive to the issues raised by Mr. Lepage, including his position on ownership of the sailboat and whether the evidence established that the sailboat sank before salvaging.”

“Mr. Lepage has not established a proper appellate basis on which to interfere with the damages award. Accordingly, I would dismiss the appeal,” concluded DeWitt-Van Oosten.

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