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WATER - Licensing and permits

Wednesday, July 17, 2019 @ 6:24 AM  


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Appeal by the defendants from a judgment finding them liable for misfeasance in public office and unlawful means tort. In the 1980s, the respondent obtained a foreshore licence of occupation over Crown land and licences to acquire provincial water for its bulk water export business. It failed to pay the rentals due for the licences, or made late payments, and did not make use of them. In response, the government terminated the licences in 1990 and 1991. The respondent commenced the action in 1996. The trial judge found the appellants gave favourable treatment to one of the respondent’s competitors and that the respondent was not given the opportunity to compete for the right to acquire water from Ocean Falls. The respondent’s principal testified that the respondent decided not to pursue that opportunity. The trial judge rejected the appellants’ limitations defence based on delayed disclosure of documents.

HELD: Appeal allowed; action dismissed. The trial judge made several material errors of fact. He made adverse inferences against the appellants without conducting an inquiry into the surrounding circumstances or identifying the precise nature of the proposed inferences. He erred in concluding the causes of action in relation to certain acts were not time-barred. No documents were willfully concealed by the appellants. There was no basis to find the limitation period had been postponed. The trial judge misapplied the tests for liability for misfeasance in public office and the unlawful means tort. The respondent’s foreshore licence was cancelled for proper reasons. The cause of the water licences cancellation was the respondent’s persistent failure to pay rentals, not the cancellation of its foreshore licence. The trial judge erred by permitting the respondent to re-open its case and provide further evidence on damages, effectively allowing the respondent to split its case. Given the pleadings, law and record, there was no evidence capable of supporting the respondent’s allegations and the action was dismissed in its entirety.

Rain Coast Water Corp. v. British Columbia, [2019] B.C.J. No. 1011, British Columbia Court of Appeal, G. Dickson, G.J. Fitch and B. Fisher JJ.A., June 6, 2019. Digest No. TLD-July152019007