Heywood v. Songhees Nation

2026 BCCA 150 Heywood v. Songhees Nation COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Heywood v. Songhees Nation, 2026 BCCA 150 Date: 20260415 Docket: CA50838 Between: Geraldine Heywood in her capacity as Executrix of the Estate of Hector Proulx, Tina Leonard, Cecile Halsey, Darian Sernoski, Daniel Sernoski, Peter Vergouwen, David Vergouwen, Doreen McClusky, Andrew Grant, James Humphreys, Bonnie Sutton, Shawn Orchin, George Doran, Barbara Sherring, Philip Pretoruis, and Ilana Pretoruis Appellants (Plaintiffs) And Songhees Nation Respondent (Defendant) Before: The Honourable Justice Griffin The Honourable Justice Gomery The Honourable Justice Mayer On appeal from: An order of the Supreme Court of British Columbia, dated July 30, 2025 (McEwen v. Songhees Nation, Victoria Docket 213686). Counsel for the Appellants: M.L. Drouillard T.J. Gervin Counsel for the Respondent: K.J. Unrau N.J. Surkan Place and Date of Hearing: Vancouver, British Columbia February 9, 2026 Place and Date of Judgment: Vancouver, British Columbia April 15, 2026 Written Reasons by: The Honourable Justice Griffin Concurred in by: The Honourable Justice Gomery The Honourable Justice Mayer Summary: The appellants were owners of homes in a manufactured home park located on the respondent Songhees Nation reserve land. Songhees Nation terminated the tenancies of residents in the park. The appellants' claim against Songhees Nation for various relief, including a right to continue to occupy the site, was dismissed. The appellants appeal from the judge's order requiring them to move the homes off the site and from the dismissal of their claim for damages based on unjust enrichment. Held: Appeal allowed in part. The judge erred when she determined that the homes were chattels and therefore had to be moved by the appellants. The homes had become fixtures, and therefore the appellants are not required to move them. The judge did not err in dismissing the claim for damages based on unjust enrichment. Songhees Nation gave three years' notice of the termination of the tenancy and permitted the appellants to remove their homes. It did not act unconscionably. Reasons for Judgment of the Honourable Justice Griffin: Overview [1] The appellants were evicted from their manufactured home residences located in a long-established manufactured home park on the respondent Songhees Nation's reserve. Songhees Nation gave three years' notice of the end of the residents' tenancies. Songhees Nation wishes to regain its own use of the land in order to fulfill its members' needs for housing. The residents are not members of Songhees Nation. [2] The appellants brought a claim advancing various legal theories with a goal of seeking a right to continue occupying their residences on the land, and Songhees Nation brought a summary trial application seeking dismissal of the claim. The chambers judge granted Songhees Nation's application and dismissed the claim. The appellants were ordered to vacate the lands. [3] The chambers judge gave an initial set of reasons dismissing the appellants' claim, indexed as 2025 BCSC 1167 ("Reasons"), and then a subsequent set of reasons made on July 30, 2025, that ordered the appellants to remove their manufactured homes from the lands by September 30, 2025. [4] The appellants do not appeal from the order that required them to vacate the lands by September 30, 2025. It is therefore unnecessary to go into many of the background facts and arguments regarding the various causes of action they advanced seeking a right to remain on the property. [5] Rather, the appellants appeal from orders relating to their interests in the manufactured homes. They say the judge erred in ordering the appellants to remove the manufactured homes from the lands. This issue turns on the judge's finding that the homes were chattels, which the appellants say was in error. [6] The appellants also submit the judge erred in not awarding them damages for unjust enrichment. They say Songhees Nation is unjustly enriched by the homes remaining on the lands after the residents vacated them, and the appellants are unjustly deprived of the value of the homes. [7] When I refer to the appellants herein, I am referring to the extant appellants and not those former residents who have since abandoned the appeal. Did the Judge Err in Finding that the Manufactured Homes Were Not Fixtures? [8] The manufactured home park has existed since the 1970s, established by members of Songhees Nation. The manufactured homes were placed on the land with the consent of Songhees Nation. Some were placed by prior owners. [9] The appellants paid monthly site fees that included rent, water supply, sewage disposal, garbage collection, and use of facilities. When they purchased their homes from prior owners of the homes, typically the lease was transferred to them along with the home on the site. [10] During the currency of the manufactured home park, Songhees Nation and the appellants did not discuss what might happen if Songhees Nation wanted to reclaim the use of the land, including what might happen to the homes. Now that it is no longer in issue that Songhees Nation had a right to terminate the tenancies, the question as to what might happen with the homes needs to be determined by the common law, specifically, the law as to when an item placed on land is a chattel or becomes a fixture. Chattels Must be Removed, Fixtures May Stay [11] The common law is well-established as to when a tenant must remove property that has been placed on land with the landowner's consent. [12] If a chattel is placed on the land by a tenant, and the tenancy is terminated, the tenant has an obligation to remove it or be liable in trespass. However, if an object is placed on property with the property owner's consent, and it becomes a fixture, it has essentially become part of the property, and the tenant has no obligation to remove it when the tenancy ends (subject to an exception for trade fixtures). [13] These concepts were explained in Bartlett v. Corner Brook (City of), 2003 NLCA 10 at paras. 34-40. That case involved a landowner, Mr. Bartlett, who had consented to the city placing fill on his property. He later demanded that the city remove the fill. It refused so he brought a claim of trespass against the city. In upholding the trial judge's dismissal of the trespass claim, the Court held: [36] The passage in The Law of Torts on which Bartlett relies is set out at page 49: Likewise, if the chattel was initially placed on the land with the possessor's consent, termination of the licence creates a duty to remove it; and it seems that, according to modern authority, a continuing trespass is committed by failure to do so within a reasonable time. [37] This statement does not apply to the situation under appeal. Rather, it clearly is limited to circumstances where, after the property owner has originally consented to having material or an object placed on his or her property, it is reasonable to conclude that the consent could be withdrawn at some future time, with the requirement that the material or object be removed. For example, a property owner may consent to having a vehicle parked on the property. However, if the consent is withdrawn, the property owner may pursue a claim of continuing trespass if the vehicle is not then removed. The same result cannot obtain where the material placed on the property essentially becomes part of the property, having been put there with the property owner's consent. In that situation, the proposition stated in Clerk & Lindsell On Torts (18th edition, 2000, London, Sweet and Maxwell), at point 18-61, would apply: A licence, even though gratuitous, is also irrevocable in the sense that a licensee cannot be compelled, after he has acted on or executed the licence, to undo what he has lawfully done. Thus Lord Evershed M.R. has said "if A gives authority to B for the doing of an act on A's land, and the act is done and completed, then whatever be the strict description of the authority, whether it be called a permission or a licence, it is, generally speaking at any rate, too late for A, who gave the authority, to complain of it". A licensor cannot complain of that which he allows; on the other hand, when he properly and validly revokes the licence, he acquires a right to sue for any continuing or subsequent trespass. But it may be that "owing to some supervening equity the licence has become irrevocable". So a licensor who induces the licensee to believe that the licence will not be revoked and allows him to spend money on works on the licensor's land may find himself restrained by injunction from revoking his licence. [38] As applied to this appeal, a person who consents to having fill placed on his or her property, with the anticipation that it will become part of the property, cannot, after the fill has been placed, reasonably expect to withdraw that consent and require the person who placed the fill to remove it. Bartlett consented to placement of the fill for the purpose of establishing a parking area. The City was entitled to rely on this consent. It would not be reasonable to expect that, when Bartlett withdrew his consent, the City should be required to remove the fill. [Emphasis added.] [14] The chambers judge below cited Bartlett and understood that the question of whether the appellants must remove the manufactured homes turns on whether the homes became fixtures. Stack Test for Fixtures [15] The parties to this appeal agree that the question of whether an object on land is a fixture is governed by the factors set out in Stack v. T. Eaton Co. (1902), 4 O.L.R. 335, [1902] O.J. No. 155 (Div. Ct.) [Stack]. The Court held: [16] I take it to be settled law: (1) That articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as shew that they were intended to be part of the land. (2) That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to shew that they were intended to continue chattels. (3) That the circumstances necessary to be shewn to alter the prima facie character of the articles are circumstances which shew the degree of annexation and object of such annexation, which are patent to all to see. (4) That the intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation. (5) That, even in the case of tenants' fixtures put in for the purposes of trade, they form part of the freehold, with the right, however, to the tenant, as between him and his landlord, to bring them back to the state of chattels again by severing them from the soil, and that they pass by a conveyance of the land as part of it, subject to this right of the tenant. [16] This approach to determining whether an object placed on land is a chattel or a fixture has been adopted in British Columbia, including in Chemainus Gardens RV Resort Ltd. v. British Columbia, 2020 BCSC 478 at para. 36 [Chemainus Gardens], aff'd 2021 BCCA 402 [Chemainus Gardens CA]; 77 Veterinary Holdings Ltd. v. Maricle, 2023 BCSC 1194 at para. 77; Scott v. Filipovic, 2015 BCCA 409 at para. 18 [Scott]; Zellstoff Celgar Ltd. v. British Columbia, 2014 BCCA 279 at para. 9 [Zellstoff]. Approach of the Chambers Judge [17] The chambers judge below properly cited the Stack test and acknowledged that it equally applies to structures on reserve lands: Reasons at paras. 81-82. [18] The chambers judge's analysis of the facts relevant to the question of whether the homes became chattels is set out at paras. 86-89 of the Reasons, as follows: [86] I find the following facts. The Homes are attached to the ground by more than their weight. They are also attached to underground sewer, water, and electrical services. Many of the Homes have additions. They have an appearance of permanence, including support to strengthen their stability and permanence, and several have concrete foundations. Songhees Nation has conceded that moving the Homes from the Lands, whether by the Plaintiffs or by Songhees Nation if the Homes are abandoned, would involve considerable time, effort, and expense. They are mobile homes and are not intended to be moved in the way one might expect of a recreational vehicle or trailer. Songhees Nation's own zoning bylaw recognizes the distinction and degree of permanence between mobile homes on the one hand and trailers and modular homes on the other: Zoning Bylaw, By-Law No. 2001-11 of the Songhees First Nation, s. 2.1. Prima facie, the Homes are fixtures. [87] However, in my view there are additional facts and circumstances which reflect that the Homes were at all times intended to remain, and continue to be, chattels. First, I find the Homes can be moved. The Plaintiffs' expert, Casjen Cramer, who has extensive experience in moving manufactured homes, confirms that even the double wide Homes can be moved, albeit that such relocations involve "practical and logistical considerations", including planning, municipal permissions, and cost. Several of the Homes have been sold and moved out of the Park. There is no evidence the removal caused damage to the Homes or to the Sites. Even though permission of the Company, or later Songhees Nation, was required to enable the Homes to remain situated on their respective Sites, the Homes were owned by and at all times property capable of being sold by their owners, separate from any legal right connected to the land: Chemainus Gardens RV Resort Ltd. v. British Columbia, 2020 BCSC 478 at para. 37. The Homes were treated as chattels by commercial financial institutions (and various Plaintiffs), as evidenced by the chattel mortgages several Plaintiffs obtained to purchase their Homes. These chattel mortgages did not grant any security in or encumber the Plaintiffs' Sites or the Lands. Although Ms. McClusky's mortgage is with respect to an unregistered leasehold interest, it is not at all clear to me that enforcement of the mortgage debt as against such an interest in the Land would be available. [88] The Plaintiffs rely on Sanderson v. Campsall et al, 2000 BCSC 583, in which Justice McEwen held that a mobile home, later converted to a bungalow style home, placed by a couple on property owned by the husband's parents with their permission was a fixture: at para. 7. However, Sanderson is distinguishable on its facts from the case before me. In Sanderson the mobile home had been placed on land which the husband's parents owned. I agree with Songhees Nation that the fact that the Homes are located in the Park which is on Reserve land is a significant and relevant fact that ought to be taken into account in undertaking the Stack analysis, and that it also favours a finding that the Homes are chattels. [89] For all these reasons I conclude the Homes are chattels, not fixtures. Though Songhees Nation operated the Park and allowed the Homes on the Sites, these actions did not amount to consent to affix permanent fixtures. These actions did not amount to an assurance by Songhees Nation of an ongoing or long-term tenancy. [Emphasis added.] Factors Considered [19] The judge's finding that the manufactured homes were chattels, not fixtures, was a finding of mixed fact and law. This Court may not interfere, absent a showing that the judge made a palpable and overriding error: Chemainus Gardens CA at para. 27. [20] It is clear on all the evidence that the manufactured homes were attached to the land, as indicated by the facts summarized in para. 86 of the Reasons, set out above. These were not mobile homes on wheels of the sort that can easily be moved from location to location. They were manufactured homes with supports attaching them to the land or foundations, with attachments to underground services and additional amenities attaching them to the land. The evidence before the judge, including photographs of the homes, showed that the homes were attached to the land to a considerable degree. [21] Had the judge ended her analysis at para. 86, her conclusion would have been that the homes were fixtures. [22] However, the judge went on to consider several additional factors at paras. 87 and 88 of the Reasons as weighing in favour of a finding that the homes were "intended" to remain as chattels: that the homes could be moved with some considerable effort and a great deal of logistical planning, without damaging the homes or the sites; the homes could be owned and sold by their owners separate from any legal rights connected to the land; some financial institutions loaned money to home buyers secured by chattel mortgages; the homes are on reserve land, and Songhees Nation did not consent to the homes being affixed as permanent fixtures. [23] Respectfully, these additional factors weighed by the judge were a misapplication of the Stack test. [24] It was not helpful to the chattel/fixture analysis in this case to observe that the homes could be removed. In Stack itself, the objects found to be fixtures were shop fittings, namely shelving screwed to the wall, and gas and electric fittings consisting of chandeliers, all of which the Court found were readily removable without damage. [25] As is made clear in the authorities, an item that is affixed to a building or land meets the second element of the Stack test, even if the affixation is not permanent and can be displaced: see for example the discussion in Zellstoff at para. 23. [26] The judge erred in finding the movability of the homes indicated that they were chattels. It is possible to consider the movability of an object from the standpoint of determining the degree and object for which an item is annexed to the land. But here, doing so would substantiate the appellants' arguments that the homes were significantly affixed. Moving the homes was possible only with some considerable effort and planning. From an objective viewpoint, the old age of these homes (some of which were built in the 1970s) and the cost of moving would be a disincentive to doing so in most cases. As well, some of the homes were penned in by other homes, trees, rocks, and obstacles. The significant degree of annexation and the difficulty of moving the homes, combined with the character of this neighbourhood, demonstrate that the homes were intended to provide long-term housing. [27] On the facts as found by the judge, there was sufficient annexation of the homes to the land in this case to satisfy the second element of the Stack test and to require the judge to move on to the third element. Again, these elements are: (2) That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to shew that they were intended to continue chattels. (3) That the circumstances necessary to be shewn to alter the prima facie character of the articles are circumstances which shew the degree of annexation and object of such annexation, which are patent to all to see. [28] As the homes were affixed to the land, they are prima facie fixtures unless, under the third element of the test, there is something about the "degree" and "object" of annexation, there for all to see, that alters this character. Often the authorities pose the question relevant to this third element as what was the object of the annexation: is it to improve the land or building's use or is it to enhance the use of the item itself? In this regard, see the discussion in Zellstoff at paras. 20-27. [29] Here, the chambers judge did not expressly refer to the object of the annexation, and it is not apparent that she implicitly did so. Had she done so, she would have needed to acknowledge that the whole of the evidence indicated that the long-standing character of the manufactured home park was a mature, established, and well-cared for residential neighbourhood where people lived in the homes as residents. The homes did not have wheels and were affixed to the individual lots by various means, such as carports, additions, oil tanks, hot water tanks, decks, and outbuildings like sheds and workshops. The evidence was that the neighbourhood is quiet, well-cared for, with immaculate yards and mature trees, and in a convenient location close to public transit and other amenities. [30] Objectively, the fact that many homeowners enhanced the sites with additions and outbuildings is consistent with the notion they were enhancing the land on which they were living. I have little difficulty in concluding that the object of affixing the manufactured homes to the land was to enhance the use of the land as an established residential neighbourhood. In my view, the judge erred in failing to consider this important factor. [31] In considering the homes to be chattels, the judge gave weight to the fact that the residents could buy or sell the homes separate from any legal rights to the land, and the fact that some financial institutions loaned money to home buyers with the security of a chattel mortgage over the manufactured home: Reasons at para. 87. Further, the judge relied on the observations made by the chambers judge in Chemainus Gardens at para. 37, to the effect that it would be unlikely for a buyer to pay significant sums for a trailer (in that case, on wheels), expecting their investments would become fixed to and part of the land. [32] The observations in Chemainus Gardens as to expectations of the buyers of trailers on wheels are distinguishable from the evidence in this case as to the nature of the homes, which are not on wheels. As the judge otherwise acknowledged, it would take "considerable time, effort, and expense" and involve "practical and logistical considerations", to move these homes: Reasons at paras. 86-87. Further, the observation in Chemainus Gardens regarding the expectations of buyers of trailers on wheels is at odds with the evidence of the nature of the manufactured home park here, which, again, was a mature, established, and well-cared for residential community. People buying a home were obtaining an ability to live in this attractive community on sites which were often enhanced through various improvements. [33] Further, there is also no evidence the lenders who obtained chattel mortgages as security examined the degree to which the homes were attached to the land. Even if they did, their opinions would be no substitute for the Court's analysis under the Stack test. [34] I am also of the view the judge erroneously gave weight to the manufactured homes being on reserve lands and Songhees Nation's lack of consent to the homes becoming permanent fixtures as reasons for finding that what otherwise appeared to be fixtures were instead chattels. [35] In the circumstances of this case, the fact that the manufactured home park was on reserve lands is a neutral fact. In many cases involving a dispute over whether an object is a chattel or fixture, the object has been placed on the land by a tenant who has no underlying ownership interest in the land. The fact that a tenant does not have an ownership interest in the land does not make a fixture a chattel. [36] If the judge was implicitly suggesting that the residents anticipated from the homes' location on reserve lands that their leases could be cancelled at any time and therefore their homes would not become fixtures, such a finding would be at odds with the evidence. The evidence was that the residents who purchased homes and lived in them expected to have a long-term right to live there (even if this expectation was based on mistaken assumptions). There was evidence that the cost of the homes they purchased reflected this common expectation. Indeed, the judge held at para. 193 of the Reasons that "[i]t appears that for many years, purchasers of the Homes operated under the erroneous assumption that there was a right to occupy the Sites in perpetuity". [37] Further, the chambers judge's finding that Songhees Nation did not consent to the homes becoming permanent fixtures is irrelevant to the issue of whether the homes are fixtures or chattels. Nor is there any evidence that Songhees Nation ever considered the issue or the degree to which the homes were affixed to the land at the time it allowed the manufactured home park to be built and operated over the decades it was on their reserve lands. [38] The judge's comment about Songhees Nation's lack of consent to the homes becoming permanent fixtures perhaps relates to the judge's consideration of what the parties "intended" as stated in the first sentence of para. 87 of the Reasons. However, the parties' subjective intentions are not a proper aspect of the Stack analysis. The fourth element of the Stack test disclaims subjective intention in favour of intention that can be presumed, i.e., objectively, from the degree and object of annexation: Scott at para. 19. As I have already indicated, the judge did not expressly consider the object of annexation. [39] Songhees Nation does not assert that the common law does not apply to the issue of whether the homes were chattels or fixtures on its land. Both parties rely on the Stack test as governing the issue. The Stack test has also governed similar chattel versus fixture issues involving structures on First Nations' reserve land, as the judge observed at para. 82, citing Boxrud v. Canada, [1996] F.C.J. No. 1602 at paras. 2, 14, 17-19, 1996 CanLII 3926 (F.C.) (pool and building were fixtures; docks and smaller structures were not); Beattie v. Squamish Indian Band, 2005 FC 314 at paras. 9, 15 (manufactured home was a fixture); and Seguin v. Pelletier, [2001] O.J. No. 1678 at paras. 30-31, 2001 CanLII 28460 (S.C.) (service station and part of a residence were fixtures). [40] In fairness to the chambers judge, I note that her analysis of the issue of whether the homes were fixtures was part of her analysis of the appellants' claim to a right to stay and occupy the homes. The appellants argued that Songhees Nation gave an implicit assurance that the appellants would enjoy a continuing right of occupation and that this was in part evidenced by the fact that Songhees Nation allowed the homes to become fixtures. The judge's statement at para. 89 of the Reasons, that Songhees Nation did not consent to the homes becoming fixtures, is understandable as a finding against the appellants' claim in this context. However, in my view, the judge erred in finding this subjective lack of consent relevant to the question of whether the homes were in fact fixtures. [41] The judge's errors in misapplying the Stack test at paras. 87-88 of the Reasons, including in failing to consider the object of the annexation, are palpable and overriding errors which affected her conclusion that the homes were chattels and that the appellants were required to remove them. Absent these errors, in my view, the conclusion compelled by the evidence and applying the Stack test is that the manufactured homes became fixtures. For this reason, it was an error for the judge to order the departing residents to remove their homes on termination of the tenancy. Did the Judge Err in Rejecting the Claim for Unjust Enrichment? [42] A claim for damages based on unjust enrichment must establish three elements: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of any juristic reason for the enrichment: Garland v. Consumers' Gas Co., 2004 SCC 25 at para. 30. The judge properly cited the applicable legal principles at paras. 161-165 of the Reasons. [43] The appellants claimed that termination of their tenancy forced them to leave their manufactured homes behind on Songhees Nation's reserve land, as it was too difficult or economically unfeasible to move them. They claimed that they were thereby unjustly deprived of the value of these homes, and Songhees Nation benefited by retaining the value. [44] The judge rejected the appellants' claim for unjust enrichment, in part based on her conclusion that the homes were chattels and so would not have to be left behind by the appellants. [45] The judge went on to consider the unjust enrichment claim on the alternative theory that the homes were fixtures. Recognizing that the law requires a showing of "incontrovertible benefit", she found there was a benefit gained by Songhees Nation from the homes left behind, described as the homes' "curbside value", and retention of the homes would result in a corresponding detriment to the appellants. [46] However, the judge found a juristic reason for the enrichment, as follows: [172] Based on the evidence before me, if the Homes are left behind, I conclude there would be a juristic reason for the enrichment, namely abandonment of the Homes by the Plaintiffs. Songhees Nation has told the Plaintiffs to remove the Homes. This is analogous to the situation in Imperial Oil v. Bulani Agro Inc., 2002 SKQB 231, aff'd 2004 SKCA 129. In Imperial Oil, Bulani Agro Inc. placed fixtures on the land of Imperial Oil to be used exclusively in connection with Bulani Agro's own herbicide business. When the relationship between the parties disintegrated, Bulani Agro sought reimbursement for its improvements, which Esso resisted. Esso offered Bulani Agro a right to remove the fixtures within a reasonable time. The Court held Imperial Oil had not been unjustly enriched since it "had not purported to appropriate unto itself the fixtures": Imperial Oil at para. 41. The Court further held that even if Imperial Oil had been unjustly enriched, there was a juristic reason for the enrichment, namely "chattels were placed on Esso's land which chattels became fixtures and, according to real property law, thereupon became part of the land": Imperial Oil at para. 42. Songhees Nation has acknowledged the Homes belong to the Plaintiffs and has told the Plaintiffs, in no uncertain terms, it does not want to retain them. [47] The judge weighed the facts that the appellants were able to regain the homes as chattels and that Songhees Nation's conduct, in giving more than three years' notice, was far from unconscionable: Reasons at para. 171. [48] I agree with the judge's rejection of the unjust enrichment claim for two reasons. First, contrary to the judge's reasoning, I would find that retention of the manufactured homes does not confer an incontrovertible benefit on the Songhees Nation. The Nation was not enriched. Second, I agree with the judge that, if there was enrichment, there is a juristic reason for it. [49] The judge recognized the correct legal principles: Reasons at para. 162. Unjust enrichment requires a finding that there is an incontrovertible benefit to the defendant, as established by Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 at 794-795, 1992 CanLII 21; see also Stevested Machinery & Engineering Ltd. v. Metso Paper Ltd., 2014 BCCA 91 at paras. 30 and 59. Further, as held by the chambers judge, "[i]f the benefit is not clear and manifest, it would be wrong to make the defendant pay given they may have preferred to decline the benefit if given the choice", citing Peel at 795. [50] While the chambers judge cited the correct legal principles, in my respectful view she failed to properly apply them. The judge's alternative finding that the homes' realizable, market, curbside value (as determined by an appraiser) would constitute an incontrovertible benefit overlooked her own finding, quoted above, that the homes are of no value to the Songhees Nation, which has "told the Plaintiffs, in no uncertain terms, it does not want to retain them". This was a palpable and overriding error. [51] I agree with the judge that the common law rule permitting the Songhees Nation to retain the homes as fixtures at the conclusion of the tenancy is a juristic reason for any enrichment that may have occurred. The appellants seem to accept that the Imperial Oil case relied upon by the chambers judge in her Reasons at para. 172, cited above, is good law but they seek to distinguish it based on the equities of the circumstances here. They say Songhees Nation taxed the appellants on their housing for decades, in effect allowing the homes to be treated as though they were "perpetual improvements". Instead of terminating the tenancies, the appellants submit that Songhees Nation could have expropriated the homes and thereby provided compensation. They also emphasize that the appellants did not legally "abandon" the homes but were forced to move out. [52] Respectfully, I do not find these arguments persuasive. [53] The judge recognized that the appellants had no choice but to move off the site. As I read her Reasons, her use of the word "abandonment" simply meant that if the appellants left their homes on the site, it would be their own choice because Songhees Nation wanted the homes removed. [54] As for the Songhees Nation taxing the appellants on their housing, in my view, given that the Songhees Nation owned the underlying land, this cannot be seen as unconscionable. Nor did Songhees Nation mislead the appellants about their legal rights. [55] I agree with the chambers judge that Songhees Nation did not act unconscionably and that it gave considerable notice and opportunity for the appellants to move their homes. There is, with respect, nothing unfair or inequitable about Songhees Nation exercising its legal rights to reclaim this part of its reserve land for the use of its members. I would dismiss this ground of appeal. [56] It follows that it is unnecessary to consider the appellants' arguments regarding the measure of compensation for unjust enrichment. Disposition [57] I would allow the appeal in part by varying term 5 of the judge's order made July 30, 2025, so that the plaintiffs are ordered to vacate the lands and remove their personal property only and are not ordered to remove their manufactured homes. "The Honourable Justice Griffin" I AGREE: "The Honourable Justice Gomery" I AGREE: "The Honourable Justice Mayer"