defendant response to bc hydro site c injunction
TRANSCRIPT
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No S169064
Vancouver
Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
BRITISH COLUMBIA HYDRO AND PO WE R AUTHORITY
PLAINTIFF
AND:
KEN BOON, ARLENE BOON. VERENA HOFMANN, ESTHER
PEDERSEN
also
known
as
Rachel
Blatt, HELEN KNOTT, YVONNE
TUPPER
JANE
DOE,
JOHN
DOE and all other
persons
unknown to the Plaintiffoccupying, obstructing, blocking,
physically impeding or delaying access, at or in
the
vicinity of
the area
in and around
the
south
bank
of
the
Peace River upstream west of
the
Moberly River, including
the
area
in and
around
the heritage site known as Rocky Mountain Fort
DEFENDANTS
APPLICATION RESPONSE
Application response of: the Defendants Ken Boon, Arlene Boon, Esther Pedersen,
Helen Knott and Yvonne Tupper.
THIS IS A
RESPONSE
TO the notice of application of
th e
Plaintiff British Columbia
Hydro and Power Authority file January 29 2016
r t
1: ORDERS
CONSENTED
TO
The
application
respondents consent
to
the
granting
of none
of
the
orders
set
out
In
Part
1 of the notice of application.
r t 2: O RDERS O PPO SE D
The application respondents oppose the granting of all of the orders
se t
out nPart 1 of
the notice of application.
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Part
3:
ORDERS ON WHICH NO POSITION
IS
TAKEN
The application respondents take no position on the grantingof the none ofthe orders
sought in Part 1 of the notice of application.
art 4: FACTUAL
BASIS
Overview
1. The Piaintiff
has
not met any part of the three-part test for
an
injunction. The
Plaintiff purports to prove interference
with
its activities through contradictoryand
often unsourced hearsay and double hearsay.
The
Plaintiffs evidence of harm
and irreparable harm consists of inadmissible opinion evidence and the Plaintiffs
evidence is contradicted by four expert opinions filed by
the
Defendants. The
four expert opinions
filed
by the Defendants authoritativelydemonstrate that no
net loss to 80 Hydroor its ratepayers will arise from construction deiay.
he Parties
2. The Plaintiff 80 Hydroand PowerAuthority is a government corporation that
reports to the Minister of Energy and Mines.
3. On January 19,2016, the Piaintiff filed a Notice of Oivil Oiaim alleging that the
defendants have committed trespass and other torts, and seeking injunctiverelief
and
damages
4. OnJanuary 29,2016, the Plaintiff filed a Notice ofAppiication seeking an
interlocutory injunction. Including enforcement provisions, restraining the
defendants and anyone having notice of the order fromobstructing or interfering
with
the
construction of
th e
Site 0 Clean Energy
Projecf
until
the
trial of the
action, on broad terms set out ina draft Order InjunctionApplication ).
5. The Plaintiffhas set the InjunctionApplication down for a one day hearing on
February 22 2016
6. The application respondents Ken 8oon, Arlene 8oon, YvonneTupper, Helen
Knottand Esther Pedersen the Defendants ) are named as defendants in the
Notice of
Civil
Claim and
named as
respondents in
the
Injunction Application.
The remaining defendant, Verena Hofmann, is represented by separate counsel
and Is not participating in this application.
7. On February15,2016, the Defendants filed a jointResponse to Civil Claim
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8. On February15,2016, the Defendants filed a Notice ofApplication seeking
various procedural reliefincluding an order aliowing the cross-examination of
MichaelSavidant;
an
order requiring document production of contracts, project
schedules and other documents relied upon by
the
Plaintiff; and an order striking
hearsay and opinion evidence.
On
the material
issue of whether the
Defendants
t respassed
or interfered with
the
Plaintiffs
activities
the Plaintiff relies almost entirelv o n h ea rs av
evidence
9.
The
Plaintiff relies almost entirely on
hearsay
affidavit evidence on
the
material
issue of whether
th e
Defendants
trespassed
or interference with
the
Plaintiffs
activities. On that issue,
the
Plaintiffoffers only two affidavits containing hearsay.
10.Affidavit 1 of Patrick Hayes, swom January
29 2016
( HayesAffidavif) is given
by
one
of
the
Plaintiffs counsel team insupport of his client's Injunction
Application. The Hayes Affidavit is tendered primarily to demonstrate that
the
Respondents trespassed or interfered with the Applicant's activities.
11.The Hayes
Affidavit
is entirely unsourced hearsay.
Mr.
Hayes provides no
evidence as to how
the
exhibits to his affidavit
were
compiled, or by whom. In
some cases the
Hayes Affidavit is unsourced double hearsay. One cannot
ascertain, upon reading the Hayes Affidavit, whether
Mr.
Hayes personally
conducted online investigations leading to the discovery of news media articles
and Facebook posts. Mr. Hayes does not aver that he personally located this
information online, and, if
he
did
so when he
did
so
It is
reasonable to
conclude
that other people located the information onlineand provided
Mr.
Hayes
with
copies.
12.The Affidavit 1 of Douglas Powell,sworn January28 2016 ( Powell Affidavit is
tendered for
the
purpose of demonstrating that
the
Defendants trespassed or
interfered with the Plaintiffs activities
13.The PowellAffidavit is almost entirely hearsay. Mr. Powell relays observations
that he alleges were made by security contractors on the Site C project site. In
paragraphs 7-68
and
72-91 of his affidavit,
Mr.
Powell relays observations that he
claims were made by other people. Exhibits
B-BB
comprise recordings, in note
and
video form, of those observations said
to
have been made by
other
people.
14.With the exception of paragraphs 69-71, Mr. Powell
made
none of these
observations himself. He has no direct knowledge of
the
Respondents' or
security contractors' activities.
Mr.
Powell relies on verbal statements and on
daily shift reports, ofevents that he himselfhas not witnessed, that have been
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provided to
him
bysecuritypersonnel. Heavers that he refersto these reports
for
the
truth of th e facts set out in
those
documents [Powell Affidavit, para 8].
15.
Video
recordingssupplement, insome instances, the reports provided by
Mr.
Powell's informants. However, th e Plaintiff ha s chosen to
pu t
only some of th e
video recordings made bysecurity contractors into itsevidence on the Injunction
Application,
ithas withheld others videos taken bysecuritystaff
from Exhibit
Bto
the Powell Affidavit [Powell
Affidavit,
para. 7].
16.
S o m e
of
th e
videos
within Exhibit B to
the Powell
Affidavit
a r e inconsistent
with
or
do not support the claimsmade bysecurity staff intheir dailystaff reports or their
verbal statements to Mr. Powell. In his affidavit, Mr. Powell does no t a d dr es s o r
explain
these
inconsistencies.
17.There is no evidence that
th e
peoplewho allegedly made
these
observations,
and that wrote daily reports ormade video recordings,were unable or
unavailable to provide direct evidence.
O n
the material i ss u e o f whether th e Respondents t r es p a ss e d o r interfered with the
Applicant s activities th e
Applicant
also
reiies
on unsourc e d hearsav
18.Inadditionto the Hayes
Affidavit
and
Powell Affidavit,
three additional affidavits
relied on by the Plaintiff in its application contain hearsay on the material issue of
whether the Defendants trespassed or interferedwith the Plaintiffs activities.The
hearsay evidence inthe three affidavits on this issue is unsourced.
19.TheAffidavit 1 of Cameron Penfold, affirmed
January 28 2016
(Tenfold
Affidavit
contains unsourced hearsay on thismaterial Issue.
20.Atparagraphs 7-10 ofhis
affidavit,
Mr. Penfold uses the defined term Clearing
Contractor , without ever identilying the person or the company to which he is
referring
to. Mr. Penfold givesevidenceabout actions taken and reported bythis
unidentified Clearing Contractor. Among other things, he claimsthat
two
Individuals stood infront of a machine on
January
4 2016. However, Mr.
Penfold did not witness this alleged event, and he does not identify th e source of
his information
an d
belief as to this alleged event.
21.There is no evidence that
th e
unidentified people who provided Mr. Penfold with
the informationat paragraphs 7-10 were unable or unavailable to provide direct
evidence. Further, incontrast to paragraphs 7-10,
at
paragraphs 11-12 of his
Affidavit,
Mr.
Penfold identifies a source of
th e
latter information.
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22.Atparagraphs 14>16 of his affidavit, Mr. Penfoldoffersopinionsbased upon
hearsay evidence of his discussions withthe ClearingContractor . Again, he
never identifies th e Clearing Contractor or any actual person whom he allegedly
had
these
discussions. At paragraph 16, he
reaches an
opinion
based
upon
hearsay discussions with unidentified persons.
23.At paragraph 17 of his affidavit,
Mr.
Penfold avers that:
17 Iam informed by the General Manager of
the
Clearing Contractor,
and verily believe, that
as
a result ofthe presence of persons inthe Lower
Reservoir
Area
interfering with
the
work under
the
Clearing Contract
(shown in Drawings 1 to 4 of
the
Clearing Contract),
a) the ClearingContractor has been unable to conduct clearing or
access
development under
the
Clearing Contract
as
planned;
b) since January
4 2 16
the Clearing Contractor has not received
any revenues for clearing or
access
development under the
Clearing Contract;
c) the clearingcontractor has fourteen pieces ofequipment
standing by (including the three pieces of equipment which have
been
moved across
the
MoberiyWinter Bridge),
as
well as
supervisors, labourers and support staff waitingand available to
perform the work.
24.In so testifying,
Mr.
Penfold givesevidencebased onan unidentified source. He
againdoes notdisclosewhothe Clearing Contractor is orwhoitsGeneral
Manager is. Hedoes not indicate that he believes it is necessary to keep this
person's name confidential. There is no evidence that the General Manager,
whoever he or she is,
was
unable or unavailable to provide direct evidence of
the
hearsay statements at paragraph 17.
25.The Affidavit 1 of Andrew Watson, affirmed
January 29 2 16
( Watson
Affidavit
contains unsourced hearsay on this material issue.
26.Atparagraph56 of his
affidavit,
Mr.
Watsongivesthis double hearsay evidence:
56 I am advised by Doug Powell, BCHydro Safety and Securitywho
has been to the camp se t up bythe Defendants on the south bank, that the
location ofthe camp as plotted byBCHydro security personnel, usingGPS
coordinates, lies directlyin the path where the retention dike
will
be
built.
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27.At paragraph 56,
Mr.
Watson gives information from
Mr.
Poweli, who himself
based the
information he gave Mr. Powell on GPS plotting done by others.
Neither Mr.
Watson
nor Mr. Poweli affixes that GPS work,
conducted
by
unidentifiedBCHydro security personal, to their affidavits. The Defendants
are
leftunable to
assess
the accuracy of those GPS coordinates.
28.There is no evidence that Mr. Poweli was unable or unavailable to provide this
information, including the GPS work, as direct evidence.
29 The
Affidavit 1 of Siobhan
Jackson
affirmed January
29 2016
( Jackson
Affldavif) contains unsourced hearsay on this material issue.
30.Atparagraphs 23 and 24 of her affidavit, Ms. Jackson avers that:
23 ... Iam advised by Doug Powell, Manager of Safety and Security
for the Project, that the two cabins and other temporary structures erected
bythe protestorsat the
Rocky
Mountain Fortsite, including firepits and
holes that have
been
dug,
are
located withinand around BlockE and
directly in the wayof the future archeological work
at
the site.
Now
producedand shown to me and markedas
Exhibit
G is a map showing
the locationof BlocksA to G (as identified byGolder), overlaid
with
the
locationof the camp area and cabins erected by
the
protestors that was
prepared bya memberofthe Project'sGIS (mapping) group undermy
supervision.The camp structures have been plotted using GIS
coordinates collected by BCHydrosecurity personal who visited the site
on January 14,2016.
24 I have provided a copyof the overlay map (attached as Exhibit 'G )
to
D Arcy
Green (Senior
Archeologist, Golder),
and he advises me that all
of the camp infrastructure
would
need to be removed to complete the
archaeological work in BlockE.
31
.Atparagraph23, Ms. Jackson givesas hearsay
opinion
evidence the
views
of
Mr.Poweli. She tenders Exhibit G without identifying the person who prepared it.
Further,
Exhibit
G is itselfsaid to be based upon GISworkdone by unidentified
BC Hydro security personnel,
which
GISwork iswithheld
from
evidence.The
Defendants are left unable to
assess
the accuracy of
those GPS
coordinates.
32 There is no evidence
that
Mr. Powell
was
unable or unavailable to provide direct
evidence of his opinion that structures
are
directly in the way of future
archeological
work
at the site, orwas
unable
to
provide Ms.
Jackson
with
the
GSP work underlying Exhibit G.
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33. Atparagraph 24, Ms. Jackson gives
as
hearsay opinionevidence the opinion
of
Mr
Green.
Mr
Green s alleged opinion is stated by Ms. Jackson to
be based
on Exhibit G, the document prepared by unidentified BCHydrostaff that itself
was based
on
the
undisclosed GIS work of unidentified security personnel.
There is no
evidence
that Mr.
Green
was unable or unavailable to provide direct
evidence of his opinionthat ail camp infrastructure would need to be removed to
complete archaeological work in Block E.
Facts relevant to the failure
t o e n fo rc e
the Land Act
34.
The
Plaintiff
and the
Ministry
of
Forests, Lands
and
Natural Resource Operations
have failed to take any appropriate steps to pursue statutory remedies. The
Ministry
of Forests, Lands and Natural Resource Operations is the
ministry
responsible for administering and enforcing
the
Land
Act
35.The Defendants have a right to be present on Crown land.
36.Neither
the
Plaintiffnor
the
Ministry of Forests, Lands and Natural Resource
Operations has ever
notified
the Defendants that they are trespassing under the
LandAct or othenA/ise contravening
the
Land
Act
37.The Ministry of Forests, Lands and Natural Resource Operations does not take
the position that the Defendants presence at the
Rooky
Mountain Fortsite is
unauthorized under the LandAct On January 20 2016 in an email to an
employee ofthe
Plaintiff
a
Ministry
employee
would
only
take the
position
that
the
structures that have
been
erected at
the
protest
camp have
not
been
authorized
38.The structures at the Rocky Mountain Fortsite are one small cabin placed at the
site on December
31 2015
a covered tent area created by a tarp,
and
another
small cabin placedat the site In mid-January 2016.These twocabins are small
not fixed to the ground, temporary and very simple.
39.Ministry staff have never communicated to the Defendantstheir
position
that the
structures
are
unauthorized
under
the
Land
Act
The Respondents have
not
been toldbyeither the Applicant or the Ministry that Ministry staffdetermined that
the
structures
are
unauthorized
under t he L an d
Act
40.The Plaintiff has not posted any signs that are compliant with the LandAct
limiting access to the
Rocky Mountain
Fortsite or adjacent Crown lands. Ithas
not posted any signage advising that access to that sitewas
limited
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41.The Plaintiffssecurity contractors posted a sign
at
the site on December 31,
2015. However, that sign did not say that peopie could not be present at the
RockyMountainFort site or that
access
to the site was limited. That sign did not
direct anybody to vacate or stay offthat Crown land. Itdid not say that peopie s
presence on Grown land
was
unauthorized.
42.The December 31,2015 sign did not direct a sheriff or a pubiicofficerto seize
any improvements, goods, chatteis or othermaterials. The signdid not state any
timeor place ofany contravention ofthe Land
Act,
did not state any detaiis of
any contraventionof the Land
Act,
and did not othenvise compiy with s. 59(2) the
Land ct
43.The Defendants have not been notifiedof any aiieged La/idiAcfviolations in a
manner consistent
with
s. 59(1) ofthe LandAct They were not served
with
any
Land Act notice inperson or by registered mail.
44.
The
Ministry
of Forests, Lands and
Natural
Resource Operations has numerous
processes
place forreporting anymisuses of
Crown
landto Natural Resource
Officers
with
its Compiiance and Enforcement Program, including trespassing
and constructing unauthorized structures on
Crown
iand.These processes
include electronic reporting forms, the Natural Resource Violation
reporting iine,
and other
avenues set
out in a brochure providing guidance on reporting
vioiations
to
Natural
Resource Officers
45.Neitherthe Plaintiff nor the
Ministry
of Forests, Lands and Natural Resource
Operations has madeanyeffort to apply the enforcement
provisions
oftheLand
Act The Plaintiff has not asked the Ministry or its enforcement staff to enforce s.
60 against the Defendants, by
following
anyofthe Ministr/s processes or
othenvise
46.The Ministry has made no independent effort
itself
to enforce the LandAct
against the
Defendants,
despite being aware ofthe structures at the Rocky
Mountain Fort site [Thome
Affidavit,
Exhibit
A].
47. Further,the Plaintiff has not asked the Minister of Forests, Lands and Natural
ResourceOperations to delegate to the
Plaintiff
the powerto enforcess. 59and
60,oranyother
provisions
oftheLandAct Under s. 97 ofthe LandAct, the
Minister
maydelegatethe power toact onthe
Minister s
behalf respecting anyof
theminister s powers or functions underthis
Act
to a government corporation as
defined in
the
FinancialAdministrationAct The Applicant BCHydro is a
government corporation as thatterm isdefined in theFinancial Administration
ActTheApplicant isan agent ofthe govemment under s. 3 oftheHydro and
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PowerAuthorityAct, RSBC1996, c 212; its powers may be exercised oniyas an
agent of the government The government is the Applicants sole shareholder.
The Applicant Is controlled by the
government
The
Plaintiff
has failed to demonstrate Harm and
Irreparable
Harm
48. The Plaintiff
has
failed to demonstrate harm
and
irreparable harm. The PiaintifPs
evidence of irreparable harm is set out in theAffidavit 1 ofMichael Savldant
affirmedon January
28 2016
( SavidentAffidavif).
49. The SavidantAffidavit is unqualified opinion that does not comply with Rule 11,
and is based upon contractual dccuments that have been withheldfrom
evidence
50.The SavidantAffidavit is controverted inmaterial respects by four expert
affidavits tendered by the Defendants, namelyAffidavit 1 of Robert McCuilough,
affirmed February 9,2016 McCuilough Affidavif), Affidavit 1 ofDr. Man/in
Shaffer, affirmed February 10,2016 ( ShafferAffidavit ), Affidavit 1 ofPhillip
Raphais, affirmed February11,2016 ( Raphals
Affidavit )
and
Affidavit
1 of
MarcEiiesen, affirmed February 14 2016 ( EiiesenAffidavit ) (collectively, the
Defendants' Expert Evidence ).
51 .Specifically,
the SavidantAffidavit estimates the cost of
delaying
construction for
one year at $420 million [SavidentAffidavit, paras.
4-5].
The Defendants' Expert
Evidence contradicts this conclusion.
Mr.
McCuilough, Dr. Shaffer, Mr. Raphais
and Mr. Eiiesen have the advantage over Mr. Savidant of actually being experts,
and their affidavitscomplywithRule 11.
52.The Respondents' Expert Evidence demonstrates that a delay inconstruction
activities would no t result in a net financial
cost
to the Plaintiff or its ratepayers
Forexample,
as
put bythe ShafferAffidavit:
Todemonstrate that a delay inconstruction and the in-service date ofSite C
would result in a net cost to BCHydro,
Mr.
Savidantwould have had to
compare the cost Impacts ofdelay that he has
identified in
his
Affidavits
with
estimates of the benefit that BCHydro would realize fromthe deferral of
expenditures
with
a
revised
schedule
for
SiteC. The
Affidavits
do not
provide
such a comparison. Consequently, the
Affidavits
do notdemonstratethat
there would in fact a
net
cost
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53.Further
the
Defendants' Expert Evidence, and in particular
the
McCullough
Affidavit demonstrate that a delay in construction activitieswould result ina
net
financial benefit to
th e
Plaintiff and Its ratepayers.
54.
Mr.
McCullough concludes that a delay in construction of the Site 0 project, and
corresponding delay of the in-service
date
of the project, would amount to a
net
savings to British Columbia. He estimates the
net
savings of a one year delay, in
present value terms, would
be
267.68million; he estimates the net savings of a
twoyeardelay at 519.44 million; and he estimates the net savings of a fiveyear
delay at 1,187.47million. Given the magnitude of these savings, inclusion of
ongoing costs of delaywould almost certainly result in the
same
conclusion
[McCulloughAffidavit, Exhibit B, p. 33].
55.Additionally, Dr. Shaffer concludes that the benefit of deferring remaining
expendituresfor fouryears
would
be inthe order of 0.9 billion to over
1.1
billion. Depending on the additional project costs of such a delay, that suggests
that a four year (or longer)delay inthe development of the Site C projectcould
result in significant savings and net benefits for BCHydro and its customers
[ShafferAffidavit Exhibit D, p. 35; see also ElisenAffidavit para. 15]
56.As adjudication of irreparable harmand the balance ofconvenience requires
findings offact in respect ofthe net costs and benefits of constructiondelay, the
Defendants have sought leave to cross-examine
Mr.
Savidant on his affidavit
[Defendants' Notice ofApplication forvariousprocedural relief filed on February
15,2016]. Cross-examination ofMr. Savidant is likely to yield further evidence
that will be ofassistance in determining the contested issue of the anticipated
costs and benefits of delays in construction of
the
Site C project.
The
Plaintiffs
Omit
Kev Documents from their Affidavits
57.The Defendantsomitkeydocuments, uponwhichthey relyheavily from their
Affidavits. Noexplanationfor these omissions is givenby the
Plaintiff.
8 ThePlaintiff
has
omitted from its affidavits a complete copy of
the
Clearing
Contract and a complete copy of
the
MainCivil Works Contract , including parts
of the Main Civil Works Contract that govern the project schedule and delay and
liquidated damages provisionsin the contracts. The Clearing Contract and Main
Civil Works Contract are central to this application; three of
the
Plaintiffs affiants
rely
on them.^ The
Plaintiff
relies heavily onthese contracts
in
itsNotice of
Civil
Claimand NoticeofApplication, and in its affidavitmaterials.
1.
With
respect to theMain Civil WorksContract, twoof the Plaintiffs affiantsreferto or
rely
upon
the MainCivil Works Contract in their affidavitevidence [Watson Affidavit paras. 26-27 and 60-62;
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59.The contractual and regulatory scheduling documents are expected to have
significant probative value for the issues of irreparable harm and balance of
convenience. If
the
contracts do not require what
the
Plaintiffclaims they require,
or if
the
contracts include terms that contemplate delays of the type complained
of by
the
Plaintiff, the Plaintiff
will
not be able to demonstrate irreparable harm.
60.Forexample,
at
paragraph 61 ofthe Watson
Affidavit
Mr.
Watson opines and
speculates that
changes
to construction plans:
would be considered a significant change to criticalpath activities
set
out
in BCHydro s contractwith PRHP and therefore PRHP is likely to claim
additional costs. In particular, this change would cause acceleration of
otherwork, re-planning logistics and re-allocating equipment, labour and
associated resources in order to
meet
its contractual obligations related to
critical
path activities. BCHydro expects the cost of a change of this
magnitude
would
have to be negotiated
with
PRHP.
61.This speculative evidence at paragraph 61 is based upon the contractual
obligations in
the Main
Civil Works Contract. Those contractual obligations have
not
been
disclosed in full or in material part by
the
Plaintiff on this application.
62. Further,
the
Plaintiff
has
withheld both contractual and regulatory evidence about
the project schedule fromevidence. Ithas pleaded reliance on and its
preliminary
construction schedule
from
itsEnvironmental Impact Statement; this
preliminary construction schedule was not included in the project s Environmental
Assessment Certificate issued inOctober 2014 [Watson Affidavit, Exhibit
D].
63. Further, after
that
Certificate
was
issued, the provincial government
made
a
decision in December2014 to revise
the
project schedule.
The
Plaintiff submitted
a revised project schedule to provincial regulators inMarch2015. The revised
construction schedule was submitted to provincial regulators inMarch 2015 in
AppendixAto the Applicant s Construction
Activity
Plan - DamSite Area and
Moberiy
River. The Plaintiff has excised Appendix A from the exhibit containing
the Construction Activity Plan and none of its pleadings or affidavits in the
Injunction
Application mentionthe revised project schedule submitted to
provincial regulators [Watson Affidavit Exhibit J, pp.
7 and
290].
Savidant
Affidavit
paras.
4-11].-With
respect to the Clearing Contract, relianceis foundin the
Watson
Affidavit
paras. 25 and 57-59,the Savidant
Affidavit
paras. 4-11, and the Penfbid
Affidavit
paras. 5 and 17.
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64.The ConstructionActivity Plan recognizes that the constructionschedule may
change or be delayed, based on permitIssuance, weather or other Project
changes
65.Rather than disclose the project schedules submitted to regulators, the Plaintiff
relies on unsourced, self-serving hearsay for evidence of Its project schedule. At
paragraph 24 of his affidavit,
Mr
Watson purports to tender a map
at Exhibit
S.
He claims that the schedule of the clearing Is more speclflcaily shown on
the
map that Is nowproduced and shown to me and marked as
Exhibit
S .
Mr
Watson
does
not Indicate
the
source of this map. He remains silent on who
created the map, forwhat purpose, or howhe obtained it. Indeed,
Exhibit
S is
dated January 29,2016, the same day that
Mr
Watson affirmed his
affidavit
These facts create
the
Impression that the map
was
created only to bolster Mr
Watson s claim, otherwise unsupported by the evidence filed by
the
Plaintiff, that
there exists a specific, fixed clearing schedule .
66.The evidence Is to the contrary, even on the Incompletecontractual evidence
provided to date bythe Plaintiff The ClearingContract expressly contemplates
that clearing workmay not be completed byMarch 31,2016,
In
which case the
Parties
will
meet to reviewprogress on the work[Penfold
Affidavit
ExhibitA,p.2].
67.To remedy these omissions, the Defendants have sought an order requiring the
Plaintiff to produce three types ofdocuments relevant to Irreparable harm and the
ba lan ce o f convenience
a. contracts relied upon by the
Plaintiff
which are referenced Inthe Plaintiffs
affidavits and Its Injunction Application, but that Ithas notdisclosed.
Including
but not
limited
to complete copies ofthe ClearingContract and
the Main CivilWorks Contract;
b. portionsof regulatorydocuments containing project construction
schedules, which portionswere excised fromthe Plaint iffs exhibits;and
c. documents referred to or relied upon by Andrew Watson In giving his
evidence regarding waste rock storage at paragraph 23 of his Affidavit
68. The Plaintiffs construction activities
will
destroy old growth
and
near-old growth
forests on th e
south
bank
of
the Peace River, In the Lower Reservoir Area
The Adminis tra tion o f Jus ti c e
69.There
are
currently three appeals and
one
judicial review underway Infour
separate legal proceedings challenging the environmental assessment decision
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and allegingbreaches ofthe dutyto consult First Nations regarding the Site C
project.
70.The
Peace
Vailey LandownersAssociationhas appealed to the
British
Columbia
Court ofAppeal the decision of Justice Seweli of this Court, reported at Peace
Valley LandownerAssociation v.British Ck lumbia (Environment), 2015 BCSC
1129. Itsappeal is scheduled to be heard onApril 4 and 5,2016. The strength of
the
Peace
VaileyLandownerAssociation s appeal Is evident fromthat party s
factum
71.A judicial reviewof the licences issued
has
been argued in the
British
Columbia
Supreme Court bythe West
Moberly
First Nations and Prophet RiverFirst
Nation.
Arguments concluded on February2,2016, and reasons are under
reserve. The issue Iswhether the Province breached a Consultation Negotiation
Agreement byproceeding to issue licences without negotiating a consultation
agreement
with
the
First Nations.
72.
The West
Moberly First Nations and Prophet River First Nation have appealed to
the
British Columbia Court ofAppeal the decision of Justice Seweii of this Court,
reported at ProphetRiverFirst Nationv.British Columbia (Environment), 2016
BCSC1682. This appeal is not yet scheduled.
73.TheWest
Moberly
First Nations and Prophet RiverFirstNationhave also
appealed a decision ofthe Federal Court, reported as ProphetRiverFirstNation
Canada (Attorney
GeneraO
2015 FC1030, to the Federal CourtofAppeal.
Their
appeal
is not yet scheduled.
Pa r t s :
LEGAL BASIS
1. The Plaintiff
has
not satisfied
the
three>step common law
test
for
an
interlocutory
injunction:
RJR MacDonald
Inc v. Canada (AttomeyGeneral), [1994]1 SCR
311
The
Applicant
has
no t
t endered
anv non hearsav ev idence
o f
a se r iou s i s sue
2. The first question to be addressed inthe test for an interlocutory injunction Is
whether
there is a serious
issue
to
be
tried: RJR - MacDonald
Inc
v.
Canada
(Attomey General), [1994] 1
SCR
311.
3. The Plaintiff pleads that there is a serious issue ofwhether the Defendants have
committed torts and other legai wrongs by interferingwiththe Plaintiffs rightto
clear
trees
in the Lower ReservoirArea of th e Site C project.
3
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4. However,
the
Plaintiff
has
tendered no direct evidence of
the
Defendants aiieged
behaviouror activitiesat the
Rocky Mountain
Fortsite. The onlyevidence that
the Plaintiff has providedof the Defendants activities is hearsay evidence,
including unsourced and double hearsay.
5. In the case ofthe Powell
Affidavit,
Mr. Powell s hearsay evidence is partial,
unreliable and inaccurate inmaterial respects. His evidence describes shift
reports or verbalstatements given to him bythe Plaintiffs contractors, which
reports and statements are often inconsistent
with
or unsupported byvideo
footage taken by those contractors. Further,that video footage is incompleteand
selective. Hishearsay evidence is also unnecessary, as the Plaintiffs contractors
who made direct obsen ations are surely able to give direct evidence.
The Court
should
aoolv Litchfield and decline
to
relv on hearsav
evidence
on
the
issue
of
whether the Defendants have
trespassed
or interfered
with
the Plaintiffs
activities
6. The Court should disregard hearsay evidence on the material issue ofwhether
the Defendants have trespassed or interferedwith the Plaintiffs activities.
7.
While
litigants are permitted bythe Rules ofCourtto relyon hearsay evidence on
an interlocutory application, this rule ismore nuanced on
injunction
applications : P.O. v.
British Columbia^
2010
BOSC
290.
8. The Defendants relyon the Court s decisions inLitchfield v.
Darwin
(1997), 29
BCLR
(3d)203 BCSC and inLeSoieiiRestaurant inc.et ai
v. NomanI
et ai,
2005 BCSC
1804. in those decisions, the Court refused to grant interlocutory
injunctions due to concerns about the applicants heavy reliance on hearsay
affidavit evidence
9. In
Litchfieid,
DeWeerdt J. dismissed an application for an interlocutory injunction.
Hedid so for the reason that itwas sought only on hearsay, and
the
applicant did
not
show
that evidence from original
sources was
unavailable. He held that, while
the Rules of Court permit litigants to relyupon hearsay on an interlocutory
application for an injunction, a judge hearing such an application must still
exercise his or
her
discretion
as
to whether Injunctive relief should
be
granted on
the basis of hearsay. He heldthat itshould not:Litchfield v.Darwin (1997),29
BCLR(3d) 203 (BCSC) at paras. 4-6.
10.The Litchfieid6ec\s\on
was
applied and elaborated on in Le Soieii Restaurant
inc.
et
ai v. Nomani et ai,
2005
BCSC 1804. Justice Baliance refused to grant an
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interlocutory
injunction where substantiaiiy all ofthe applicant s evidenceon a
material issue was hearsay or double hearsay. For the Court,she held that:
o It is always a matter of
Judicial
discretion
as
to whether an interlocutory
order ought to be admittedon the basis of hearsay evidence (para 47);
o Double hearsay should never be admitted (para 47);
o Affidavits on information and belief may not be
used
in all circumstances
(para 47);
o Utchfield does not stand for the proposition that the court ought to decline
to grant an interlocutory injunction onlyin circumstances where all ofthe
evidence presented is hearsay. The vital point identified by
the
court
inUtch^eld was that the pertinentmaterial and facts in issue did not go
beyond statements based on information and belief (para 49);
o Itis especially problematicto relyonlyon hearsay
so
when terms of the
proposed injunction are expansive, such the
plaintiffs would
ineffect, be
given substantially ail of the benefits of a judgment at trial
as
against the
defendants
Such a far-reaching
outcome
should
alert
the
court
to
exercise extreme caution inadmitting
hearsay
on pivotal
issues
especially
where there is no compelling reason given for the omission of
the
evidence from
the
original
sources
(para 52);
o Injunctive relief is drastic and extraordinary, such that the court ought to
receive direct evidence on essential facts in dispute on interlocutory
applicationsof this kind wherever it is reasonably practicable and
obtainable
and
in
the absence
of urgency . To apply a
less
rigid
evidentiarythreshold runs the danger of compromising a meaningful
consideration of the
test
for granting an interlocutory injunction (para 55).
11TheDefendants
submit
that the ourt
should
follow Utchfield
and
Soleil and
decline to grant the requested
injunction.
Almost the entiretyofthe evidence on
the material issue of
whether
the Defendants have trespassed or interfered with
the
Plaintiffs activities is hearsay, including unsourced
and
double hearsay.
12.The hearsay evidence dealing with
the
Defendants activities is provided inthree
afRdavits
13. First,
the
Penfold Affidavitcontains unsourced hearsay
on
this Issue, at
paragraphs 7-10 and 14-17, that is contraryto Rule 22-2(13)and is inadmissible.
This Court should strike or disregard those portions ofthe PenfoldAffidavit.
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14. Further, both the Powell
Affidavit
and Hayes
Affidavit
consist of hearsay evidence
on
the
material
issue
of whether the Defendants have
trespassed or
interfered
with
the Plaintiffs activities
15.
With
one exception,
Mr.
Powell does not
offer
any directevidence on the material
Issue of whether actions constituting
trespass
or interference
have
occurred.
Almostthe entirety of his evidence on this material Issue is hearsay.
16.The exception is that Mr. Powell offers directevidence in paragraphs 69-71 of his
Affidavit.
Mr. Powell s three paragraphs of direct evidence is very limited and is
manifestly insufficient to obtainthe injunctive relief sought.
17.The hearsay evidence comprising the remainder of the Powell Affidavit neither
bears the hallmarks of reliability being contentious and adversarial) or necessity
there being no evidence that persons who made directobservations are not
availableto giveevidence), itis not even plausibleto suggest that itwould be
inconvenient for
the
Plaintiffs contractors and employees who allegedly
made
the observations to mak e
their own
affidavits
18.In particular, in
Exhibit
B
Mr. Powell
has
affixed only
some of the video footage
taken by the Plaintiffs contractors. He has excluded other videofootage
from
Exhibit B.
The
video footage is selective
and
incomplete.
19.Further, some of the video footage in Exhibit B is inconsistent
with
or does not
supportthe contents ofthe daily shift reports exhibited to the Powell Affidavit.
Mr.
Powell s description of what happens inthe videos is a) sworn on
information and beliefand b) is inaccurate in material respects. Mr. Powell
cannot be effectively cross-examined about these inconsistencies, however,as
he did not make any ofthe observations documented inthe dailyshift reports.
20.The Plaintiff has not provided any evidence suggesting that its staff and
contractors who allegedly observed the Defendants, according to Mr. Powell are
unable or unavailable to give any direct evidence.
21.This Court should disregard paragraphs 7-68 and 72-91, and Exhibits
B BB
of
the
Powell ffidavit
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22.Mr. Hayes also does not
offer
anydirectevidenceon the material Issue whether
actions constituting trespass or Interference have occurred.
All
of his evidence on
this
Issue
Is hearsay
23.Further It appears that Mr.
Hayes
evidence Is In wholeor In part double
hearsay.
Mr.
Hayes does not appear to have personally gathered the evidence
affixed
as
exhibits
to
his affidavit.
He
does no t
aver
that he did so He does no t
aver that he personallylocated the news articlesonline. He does not aver that he
personally Investigated the social media webpages or that he personally
accessed the
Defendants
Facebook
accounts
He
remains
silent In his affidavit
on which person or persons located obtainedand collected the vast majority of
exhibits
to
his
affidavit
24.
Mr.
Hayes is legal counsel to the Plaintiff.
Mr.
Hayes is presumed to be familiar
with the applicable lawgoverning this application.
Including
this Court s decisions
in Utchfield and Soleil.
The
Defendants respectfully submit that Itwould be
inappropriateto relyon an affidavit of counsel which affidavit comprises
evidence that is entirely hearsay and apparentlydouble hearsay on the material
issue of whether actions constituting trespass or Interference have occurred.
25.This Courtshould strikethe Hayes
Affidavit
or disregard
It In
Itsentirety.
26.
Finally
the
remaining
evidence on the
material
Issue of whetheractions
constituting trespass or Interference have occurred Is ali unsourced hearsay.
27.The Penfold
Affidavit
gives hearsay evidence on this material Issue at
paragraphs 7-10 and 14-17. He does not disclosethe names ofthe persons with
whom he had discussions or
the names
of
the
Clearing Contractor or its General
Manager who were the source of his Information and believe
28. The Watson Affidavit gives double hearsay evidence on this material Issue at
paragraph 56.
Mr.
Watson s
information
comes
Mr.
Powell which Is Itself based
on untendered information gathered by unidentified BC Hydro security personnel.
This has the effect of shielding GPS workconducted by these unidentified
personnel. The Respondents are leftunable to assess the accuracy of those
GPS coordinates. This prejudicially denies the Defendants of a defence to the
hearsay allegation that they are interfering
with
the Plainttffs
work
due to their
alleged proximity to equipment.
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29.
Likewise
the Jackson
Affidavit
gives unscurced hearsay on this materialissue at
paragraphs
23-24.
Aswith theWatson
Affidavit Ms.
Jackson s information also
comes
from Mr. Powell as well as from Exhibit G - which
was
created by
unidentified
BC
Hydro
staff using untendered GIScoordinates collectedby
unidentified BCHydrosecurity personnel. Further,
she
gives
as
hearsay
opinion evidencethe opinion ofMr. Green,which opinion Isalso based on
Exhibit G and thus on the undisclosed GIS work of unidentified security
personnel.
Again
this prejudicially denies the Defendantsof the
ability
to assess
the accuracy of those GPS coordinates and to defend themselves against the
hearsay allegation that they are interfering with the Plaintiffs work.
The
Plaintiff
has
provided no direct ev idence of anv tortious or
illegal
behaviour
30.The
Plaintiff
has not providedany directevidence ofany tortious behaviour,
amounting to nuisance, intimidation inducement of breach of contract,
interferencewith economic relations by unlawful
means
or conspiracy.
31. Indeed,
the
Plaintiff
has
not provided any hearsay evidence of any tortious
behaviour. The hearsay evidence - which, following Utchfield and So/e//, should
not be relied on in
any
event - merely indicates that the Respondents are
present inthe area. The hearsay evidencedoes not showthat the Defendants
have behaved in
an
obstructionist, intimidating or interfering manner whatsoever.
32. Innoway does the Defendants presence at the RockyMountain Fort remotely
equate to intimidation or mischiefunder ss. 423 or 430 of the Criminal Code. In
nowaydoes the Defendants presence at the RockyMountain Fortsite amount
to a
breach
of section
13
of
the
Heritage Conservation
Act
33.The Defendants have no knowledge of
the
existence or content of
the
Plaintifrs
contracts beyond selective extracts of the Clearing Contract and the Main Civil
Works Contract affixed to the Plaintiffs affidavits in this application.
34.The Defendants mere presence
at
the RockyMountain Fort site is not a violation
of
section 60 of
the Land Act.
The structures are
two small,
non permanent
transitory cabins and a tented area created by a tarp. There is no evidence of
flouting the law.
35.On January 20,2016, the Plaintiff asked the
Ministry
of Forests, Land and
NaturalResources Operations to opine that that the occupation of the Rocky
Mountain Fort site was unauthorized under
the
LandAct. However,
the
Ministry
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declined
to take the
position
that the
occupation
ofthe
Rocky Mountain Fort
site
was unauthorized under the Land
Act
Instead, the
Ministry
would onlytake the
position that the structures at that site were unauthorized.
The Plaintiff, a oovemment corporation
should
no t be Granted inlunctive relief
when
the
government has
avoided
pursuing statutory
remedies under
the
Land
Act
36.The Defendants submit that
the
Piaintiff, as a govemment corporation, should
first
pursue its statutory remedies under the LandAct, before seeking to enlist
this Court in an extraordinary exercise of equitable jurisdiction.
37.
Reiying
on Ontario
case
law,the Plaintiff argues that it is entitled to an injunction
as of right to enjoin
an
unlawful act.
38. However, in British Columbia, this Court has rejected
that
argument in the
preciselythe
same
context
as
exists here, namely alleged trespasses to
Crown
land under section 60 of the Land
Act
Attorney General v. Sager, 2004 BCSC
720
at
para 13 .
39.The
Land
Act sets
out the
rights and responsibilities of the Crown Inthe
administration of public land. The procedures ins 59
are
intended to
ensure
that
adequate notice is given to
the
public of
limits
placed by
the
Crown on access to
such lands. The remedies and procedures provided intherefore intended to
provide due process for those accused of trespass on Crown lands - Sager,
at
para. 33.
40.The equitablejurisdiction of this Courtought not to be invoked to restrictthe
rights of boththe Defendants and ail members ofthe publicto enter on
Crown
land through the
use
of a Jane/John Doe injunction, where the govemment
has
chosen not to utilizethe offence provisions of
the
LandAct Sager, para 16.
41.The government s resort to the courts for injunctiverelief ought to be a final step
and not merely a convenient alternative to
the
application of criminalor other
available sanctions: Sager, paras. 21-22; British Columbia Attomey General) v.
Perry Ridge Water Users Assn., [1997] BCJ No. 2348 SC) QL); Alliford Bay
Logging Nanaimo) Ltd v. Mychajlowycz, 2001 BCSC 636.
42. While the Plaintiffis not
the
Attomey General, it is a govemment corporation. By
law, it may exercise powers onlyon behalf of the government. By
law,
itis
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controlled
bythe government; Financial
Administration Act^ definition
of
govemment corporation .
43.The
Ministry
of Forests Landsand Natural Resource Operations has apparently
elected not to enforce or assign the power to enforce
the
LandAct at
the
Rocky
Mountain Fort site despite meeting with the PlaintifTs representatives.
44.The Plaintiff may exercise delegated statutory powers under the Land
Act
including powers regarding trespass under ss. 59 and 60 of the Land
Act
because itis a govemment corporation referred to ins.97. However there is no
indicationthat the Plaintiff has sought these powers from the Ministry Italso
prefers to turn to this Courtfor an extraordinaryand broad exercise ofequitable
relief
affecting all members of the public rather than exercising statutory powers.
45. In
these
circumstances to
issue
a Jane Doe/John Doe injunction
and bypass the
provisionsof the LandAcfwould deprive those individuals whomight
othenArise
be accused of offences under the Act of due process. Granting of interlocutory
Injunction
reliefis not just and equitable
In
allthe circumstances of the case -
Sager para. 36.
The s ta t us quo
will
not use the Plaintiff i r reparable harm in the form of
in re sed
o s t s
46.The second question to
address
under the RJR - MacDonaid
test
is whether
irreparable harm
will
result ifthe injunction sought is not granted. On this
question the Court should conclude that the status quo will not
cause
the Plaintiff
irreparable harm In
the
form of increased costs.
47.
Relying
on Ontario case law the Plaintiff argues that itneed not demonstrate any
irreparable harm to be entitled to an injunction it argues that it is entitled to an
injunction
as
of right to enjoin an uniawful act.
48. InBritishColumbia this Court
has
rejected that argument in
the
same
context of
alleged trespasses to Crown land under section 60 of the Land Act Sager para.
13
49.The Defendants submit
that
Ifthe Court decides to exercise its equitable
jurisdiction and issue an interlocutory injunction itmay only do
so
after applying
th e
usual three step
test
20
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SO.The Defendant
has
filed
th e
Affidavitsof
Mr
McCullough, Dr. Shaffer,
Mr
Raphals
andMr Eliesen all of
whom
are
qualified
to
give opinion
evidence of
the net cost ofdelay. Theiropinions concurthat construction delayswill not
result in
net costs
for BC Hydro or its ratepayers:
McCuliough
Affidavit, Exhibit B,
Ex. p.33
Shaffer
Affidavit,
Exhibit D. Ex. p.35
Raphals Affidavit
Eliesen
Affidavit,
para.
15
A delay in construction of Site C, amounting to a
delay ofthe in-servicedate ofSite C,would
amountto a
ne t
savings to BritishColumbia, not
a
ne t
cost Th e net savings of a on e year delay,
in present value terms, is 267.68
million;
for a
two year delay itis 519.44
million;
for a five
year delay, the net savings is 1,187.47
million
... given the magnitude ofthe net savings by
delaying, inclusionof [ongoing]costs would
almost certainly result Inthe same conclusion.
Th e benefit of deferring remaining expenditures
four years would
be
in the order of 0.9 to over
1.1 billion Depending on the additional project
costs of such delay, that suggests a four year or
longer) delay in the development ofSite
0
could result in significant savings
an d
net
benefits for
8 0
Hydro
an d
its customers.
Th e additional costs of delay identified in th e
Savidant Affidavit,
when
combined with
th e
very
substantial positive ratepayer impacts that delay
would produce priorto commissioning and in the
very firstdecades thereafter, are not significant.
Delayingcommissioning
will
tend to reduce
th e
losses
that result from selling Site C surplus
power inthe expert market at prices far below its
productioncost. This benefit tends to reduce
the increased capital costs resulting fromthe
delay.
Michael Savidant s alleged construction cost
delays
ar e
effectively iilusionary
because he
relies on
an
unsubstantiated
need
for
th e
project
based on long term forecasts
that
have not been
properlyvetted. Delay ofthe project is
likely
to
save British Columbia ratepayers more than the
alleged estimated 420
million
costs Itemized by
Michael Savidant. This situation is Increasingly
obvious given current developments in load
d e m a n d .
2 1
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51.
In
contrast, the Savidant
Affidavit
makes no
effort
to comply
with
Rule11.
Moreover
his curriculum vitae, released
In
other legal proceedings, casts doubt
onthose qualifications. TheSavidantAffidavit is inadmissible
opinion
evidence
and
should
be
struck
52. In contrast to the
McCuliough
Affidavit
the ShafferAffidavit the Raphals Affidavit
and the Ellesen Affidavit,
the
Savidant Affidavit
estimates
the
cost
of delaying
constructionfor one year at 420 million. Atpage 2 ofthe Report attached
as
Exhibit B to
the
McCuliough Affidavit (the McCuliough Report ),Mr.
McCuliough assesses that
Mr.
Savldant's affidavit contains no descriptionof his
updated calculations, displays a very limited understanding of project cost
estimation, and contains a number of errors of fact.
53.The
McCuliough
Report identifies the
following
specific difficulties
with
Mr.
Savldant's estimate
among
others:
a. Atparagraph5 ofhisAffidavit Mr. Savidant
Identifies
a construction cost
increase of 60
million
over his August 12,2015 estimate of 100 million;
yet at paragraph 6, Mr. Savidant Identifies an increase of 50
million
over
that August 12,2015 estimate. Mr. Savidant has provided no details that
would
account
for this discrepancy;
b.
Mr.
Savidant appears to use an assumption of 18% interest rate, which is
not a credible assumption in today's financial markets and contradicts the
rate he appears to
use
forother calculations;
c. Mr. Savidant Identifiespayments under the Main CivilWorks contract
as
a
basis
for Increased
costs
even though
the
contractor is not due to mobilize
until
early Februaryof2016. The McCuliough Report Indicates that non
existent progress payments should not attract interest charges; and
d. Mr. Savidant identifies an unsigned contract (the Turbine Generator
contract)
as
a reason for Increased direct costs at paragraph 6(a)(iv). The
McCuliough Report describes these alleged costs
as
speculative at best
and questions whether the Main
Civil
Works and Turbine Generator
contracts
were
mistakenly listed
as causes
for
increases costs
54 The
Plaintiff
has not
disclosed evidence,
such
as
the
revised project
schedule
that itsubmitted to regulators in
March
2015 or the terms of its contracts that
relate to projectscheduling, relevantto meeting its burden of proofon the issue
of irreparable harm. The SavidantAffidavit appears to rely on
these
documents.
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55. On the whole of
the
evidence,
the
continuance of
the status
quo would not
cause
the Plaintiff Irreparable harm.
The
balance
of
convenience
favours
denial
of
the
requested
injunction
56.The third question under the RJR - MacDonaldtest is whether the balance of
convenience favours the granting of an Interlocutory Injunction This involves a
consideration not just of the parties interests, but of various publicInterests.
57.
In
light
of the evidence that delaying construction
would
create a net
financial
benefitfor
British
Columbian ratepayers, the public interest weighs against the
granting of an injunction.
58. Other public Interests would also
be
strongly served by refusing
the
injunction.
59 The Plaintiffs construction activities will destroy old growth and near-old growth
forests on
the south bank
of
th e
Peace
River, in th e Lower
Reservoir
Area.
This
destruction cannot
be
quantified monetarily and would be an irreparable loss to
the Respondents and to the public.
60. One judicial reviewand three appeals are currently underway. The hearing of
the judicial review concluded on February
2 2016
and reasons are in reserve.
One of the appeals is
set
for
April
4 and 5,2016. The other two appeals are
expected to be heard In the fall.
61.The strength of these appeals Issubstantial. In particular, the strength ofthe
Peace
Valley
Landowner Association sappeal is clearly evident from that party s
compelling factum:
LaxKv/alaams Indian Band
v
British
Columbia Minister
of
Forests , 2004
BOCA
306 at paras. 16-20.
62. The contents of the Peace Valley Landowner Association appeal dovetails with
the expert opinion evidence filed by the Defendants on this application.
In
their
appeal, the Association argues that Site C should have been referred to the BC
Utilities Commission to assess
the need
for and
cost
of
the
project. Mr. Eliesen,
Mr
Raphals,
Mr
Shaffer and Mr McCullough concur with that suggestion.
63. Further, the West Moberly First Nations and Prophet River First Nation, whose
appeals to the BCCourt ofAppeal and Federal Court ofAppeal are ongoing,
would suffer irreparable harm from the Applicant s tree clearing activities which
would undermine their ability to exercise their constitutionally-protectedtraditional
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rights. The harm to theWest Moberly First
Nations
and Prophet River
First
Nation s rights shouldbe assumed to be irreparable: Yahey v. British Columbia
2015 BCSC 1302
at
paras. 41-45.
64.The Plaintiff
has
shown itself to be
piling
shortcut upon shortcutwiththis project
Itshortcutdue dilligence by bypassing the BC Utilities Commission, itshortcut
the FirstNations by
failing
to consult, itshortcut the administration ofjustice by
failing
to waitfor the results on appeal before trammelling over FirstNations
territory, it shortcut the LandAct requirements for notice on Grown land, it
shortcut
the
Rule 11 requirements for expert evidence and it shortcut the
Utchfield
limits
on hearsay evidence for interlocutory injunctions. Especially
here,
where the
Defendants have demonstrated
that
the status
quo is of net
benefitto
BO
Hydro and Its ratepayers, an injunction should be denied.
65.
These
considerations tip
the
balance of convenience against issuance of an
interlocutory injunction.
Part
6:
MATERIAL TO B E RELIED ON
1. Plaintiffs Notice of
Civil
Claim filed January
19 2016;
2. Plaintiffs NoticeofApplication for an injunction
filed
January 29,2016;
3. Plaintiffs affidavits in support of its application, including:
a. Plaintiffs Affidavit 1 of Patrick Hayes,
swom January
29 2016;
b. Plaintiffs Affidavit 1 of Cameron Penfold, affirmed January
28 2016;
c. Plaintiffs Affidavit 1 of AndrewWatson, affirmed January 29 2016;
d. Plaintiffs Affidavit 1 of Douglas Powell, sworn
January 28 2016;
e Plaintiffs Affidavit 1 of Siobhan Jackson, affirmed
January 29 2016;
f. PlaintiffsAffidavit 1 of Michael Savidant, affirmed January
28 2016;
g. Plaintiffs
Affidavit
1 ofEdieThome, affirmed January 20,2016;
4. Affidavit of Robert McCullough, affirmed February 9, 2016;
5. Affidavit of Dr. Marvin Shaffer, affirmed
February
10 2016;
6. Affidavit of PhillipRaphals, affirmed February
11 2016;
7. Affidavit of Marc Eliesen, affirmed February 14 2016;
8. Affidavit 1 of
Shauna
Stewart, affirmed February 15 2016; and
9. Such further material
as
this Court may accept
-
7/24/2019 Defendant response to BC Hydro Site C injunction
25/25
The ppli tion respondents estimatethat the application
will
take three days.
The application respondents have
filed in
this proceedinga documentthat containsthe
application respondents address for service.
Date: February 15 2 16
Counsel fo r the
Re
Jason GratI
ndents / Defendants
GratI
Company
Barristers
and
Solicitors
601-510West Hastings St.
Vancouver
BC V6B 1L8
604-694-1919 (office)
604-608-1919 (fax)