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ENVIRONMENTAL LEGISLATION - Approvals, licences and orders - Amendment, revocation or suspension

Friday, May 08, 2020 @ 9:24 AM  

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Appeal by the plaintiff, Cobble Hill Holdings, from an order striking its pleadings in part. The plaintiff owned and operated a mining quarry. The Ministry of Environment cancelled the plaintiff’s permit that had allowed acceptance of contaminated soils and discharge of waste. The Ministry found ongoing non-compliance with the terms of the permit and a failure to provide requested financial security. The plaintiff consequently sued the Province and the former Minister of Environment for damages for negligence and misfeasance in public office. The defendants applied to strike the plaintiff’s pleadings. The chambers judge conducted the Anns/Cooper analysis to find that policy considerations militated against finding the existence of a duty of care. Accordingly, the claims in negligence were struck and dismissed. The plaintiff was granted leave to amend its pleadings to meet the requirements for misfeasance in public office. The plaintiff appealed the order striking its negligence claim.

HELD: Appeal dismissed. Although the trial judge correctly dismissed the claim based on the residual policy considerations stage of the Anns/Cooper analysis, the claim could and should have been struck at the proximity stage. Even if the parties’ prior alignment in regulatory proceedings had been pleaded, it did not support a special relationship creating a private law duty of care. Similarly, the factors inherent in administering the regulatory scheme were insufficient to create a relationship of proximity. There was no allegation that the defendants exceeded their role as regulator, giving rise to a duty of care. With respect to the residual policy considerations, the trial judge correctly concluded that a duty of care would conflict with the Minister’s responsibilities to the public that would render it unable to effectively accomplish the protection purpose of the Environmental Management Act in favour of promoting a permit holder’s business interests.

Cobble Hill Holdings Ltd. v. British Columbia, [2020] B.C.J. No. 405, British Columbia Court of Appeal, G. Dickson, S.A. Griffin and P. Abrioux JJ.A., March 16, 2020. Digest No. TLD-May42020010