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CIVIL PROCEDURE - Disposition without trial - Stay of action - Another proceeding pending

Tuesday, July 10, 2018 @ 10:36 AM  


Appeal by the plaintiff, Greengen, from an order staying its civil claim against the Province pending disposition of a parallel judicial review proceeding. In 2005, the plaintiff, a developer of sustainable hydropower projects, sought a water licence and land tenure to support a particular project located within the traditional territory of the Squamish Nation. In 2007, the Province and the Squamish First Nation reached a land use agreement that involved, among other things, the Province’s agreement not to issue new Crown land tenures within certain protected cultural sites. In 2009, the Province denied the approvals sought by the plaintiff, citing the land use agreement and concerns of the project’s impact on certain Aboriginal rights and spiritual bathing practices. In 2016, the plaintiff sought judicial review of the Province’s refusal to grant the water licence and land tenure, and an Environmental Appeal Board decision affirming denial of the water licence. Two months later, the plaintiff filed a notice of civil claim against the Province and Squamish Nation that alleged misfeasance in public office. The chambers judge found that the plaintiff’s claim was an abuse of process as an impermissible collateral attack on the governmental decisions at issue. The judge ordered a stay of the action pending completion of the judicial review proceeding. The plaintiff appealed.

HELD: Appeal allowed. A civil action constituted an impermissible collateral attack where it sought to invalidate a governmental decision or avoid its consequences, or failed to plead a valid private law cause of action for damages. The plaintiff's civil action did not seek orders to set aside the Province’s decision or require it to issue a land tenure or water licence. The action was founded on the refusal decisions and the financial losses consequent upon them. The chambers judge erred in her analysis of the plaintiff's pleadings by focusing only on the facts and the issue of unlawfulness of the government decision-making without considering whether a proper civil cause of action for misfeasance in public office was pled. Although the action’s allegation of unlawfulness touched on issues of jurisdiction and process, it raised a fundamental issue about the substantive basis for the decisions that was distinct from the type of unlawfulness supporting a judicial review remedy. The chambers judge erred in ordering a stay of the action pending conclusion of the judicial review. There was no reason why the plaintiff should be restricted from pursuing a valid civil cause of action before deciding whether to proceed with its judicial review. Neither proceeding was necessarily determinative of the disposition of the other. The stay of the plaintiff’s action was set aside.

Greengen Holdings Ltd. v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), [2018] B.C.J. No. 1034, British Columbia Court of Appeal, M.V. Newbury, S.D. Frankel and B. Fisher JJ.A., June 1, 2018. Digest No. TLD-July92018004