West Moberly First Nations v. British Columbia

2018 BCSC 270 West Moberly First Nations v. British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: West Moberly First Nations v. British Columbia, 2018 BCSC 270 Date: 20180223 Docket: 18-0247 Registry: Victoria Between: West Moberly First Nations, and Roland Willson on his own behalf and on behalf of all other West Moberly First Nations Beneficiaries of Treaty No. 8 Plaintiffs And: Her Majesty the Queen in Right of the Province of British Columbia, the Attorney General of Canada and British Columbia Hydro and Power Authority Defendants Before: Master Bouck Ruling at Case Planning Conference Counsel for the Plaintiffs: R. Mogerman S.A. Morgan K. Duke Counsel for Her Majesty the Queen in Right of the Province of British Columbia (the "Province"): E.K Christie A.D Cochran Counsel for the Attorney General of Canada ("Canada"): J.E. Hoffman S. Miller Counsel for British Columbia Hydro and Power Authority ("Hydro"): M.D. Andrews, Q.C. E.A.B. Gilbride Place and Date of Hearing: Victoria, B.C. February 19, 2018 Place and Date of Ruling: Victoria, B.C. February 23, 2018 Introduction [1] In this proceeding, the plaintiffs seek declarations that the construction of what is described as the Site C Dam project[1] is an infringement on treaty rights and that any decisions allowing for that construction are unconstitutional. The plaintiffs will be asking the court to issue an interlocutory injunction stopping part or all of the

construction of Site C pending a final determination of those issues at trial. [2] The plaintiffs initiated this action on January 15, 2018. The application for the interlocutory injunction was filed on January 31st for a hearing date of March 26, 2018. That notice of application also seeks an order for an expedited trial date. All of the defendants have been served with these processes but no responses are entered. [3] The parties now ask the court to order a schedule with respect to certain steps in this proceeding. While the parties' case plan proposals address a variety of steps that might be the subject matter of a case plan order, the oral submissions focused on the processes leading up to and including the hearing of the interlocutory injunction application. [4] There is no indication in the court record as to when the defendants were served with the notice of civil claim. Even if the document was filed and served on the same day, the notice of this case planning conference was taken out before any responses were required from the defendants. Thus, neither the request for a conference nor the filing of a Form 19 were done in compliance with Supreme Court Civil Rule 5-1 (1). As well, not all of the parties filed a case plan proposal in compliance with that Rule. The parties were asked by the court to address the question of non-compliance at the commencement of the

conference. The concern of the court is that the parties had "jumped the queue" ahead of other litigants equally entitled to judicial time and resources. After hearing submissions, I chose to treat the non-compliance as irregularities. However, that decision is not intended to set a precedent that non-compliance with SCCR 5-1 is readily excused. [5] Another wrinkle with this conference is the fact that the plaintiffs wrote to Chief Justice Hinkson on January 18, 2018, requesting both the assignment of a case management judge and the scheduling of an expedited case planning conference. In subsequent correspondence to the court, Hydro and the Province took issue with some of the content of the January 18th letter. At least Hydro took the position that a request for case management ought to be made pursuant to Practice Direction 4[2], that is, at this case planning conference. These letters form part of the court record. There is no record of any direction from the Chief Justice allowing for an expedited case planning conference. [6] Without questioning the plaintiffs' motives in corresponding with the Chief Justice about these matters, there is no justification for circumventing Practice Direction 4. That being said, the Province has been told by either the Victoria registry or Supreme Court Scheduling that the process for the assignment of a case management judge has been

initiated. This does not mean that a case management judge will be assigned. The possibility of such an assignment does, however, influence some of the results from this conference and led me to the conclusion that a written decision on those results ought to be available to subsequent presiders and the parties. [7] Lastly, this case planning conference was scheduled be heard concurrently with a conference in a related action brought by the Prophet River First Nation and others against the same defendants: Victoria Registry no. 180248. That conference has been ordered adjourned generally: Prophet River First Nation v. British Columbia, 2018 BCSC 271. Relevant Facts [8] Most of the relevant facts that inform the case plan order are found in the plaintiffs' injunction application material. These facts were supplemented by the oral submissions of all counsel. In addition, no objection was taken to the court receiving some unfiled additional documents from Hydro and counsel's speaking notes. Those documents will be returned to Hydro's counsel for a determination as to whether some or all ought to be filed in the proceeding in some fashion. [9] The parties agree on most of the salient facts but disagree on what those facts should dictate in terms of a case plan order. [10] The Site C construction project has been ongoing since July 2015. It is common knowledge that the project has

been a point of controversy in both the courts and the political arena of this province. [11] On September 15, 2015, this court dismissed a petition brought by the West Moberly and Prophet River First Nations that sought judicial review of administrative decisions allowing the Site C Dam project to proceed: Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682. The court found that an action commenced by notice of civil claim was the proper forum to determine the question of infringement of treaty rights. That same finding had been made by the Federal Court of Canada on August 28, 2015: Prophet River First Nation, West Moberly First Nations v. Attorney General of Canada and others, 2015 FC 1030. [12] Thus, arguably, the plaintiffs knew by the fall of 2015 that a notice of civil claim must be filed if they intended to pursue their remedy. However, the plaintiffs in the judicial review proceeding chose instead to appeal both decisions. The outcome of the appeals was finally resolved when the Supreme Court of Canada declined to grant leave on June 29, 2017. The plaintiffs then awaited the policy announcements from the newly-elected provincial government, holding out some hope that this government would re-visit the Site C construction plan. It was not until December 11, 2017 that the political situation became clear: construction of Site C would

continue. [13] Since the service of the notice of civil claim, Hydro and the plaintiffs have exchanged correspondence addressing the issue of urgency in having the injunction application heard. Hydro has given assurances that certain work in "critical areas" will not proceed until October 1, 2018, or a decision of the court on the injunction application, whichever is earlier. The plaintiffs are not particularly assuaged by this suggestion as they are concerned that construction plans might suddenly change and Hydro will not be able or willing to stand by this commitment. The plaintiffs say that the injunction application must be heard as soon as possible. In the meantime, the plaintiffs have asked Hydro to provide at least 21 days' written notice of any changes in the construction plan for the identified critical areas. [14] According to Hydro, the project's "inundating" or flooding of the Peace River Valley, which will be irremediable, will not occur until the fall of 2023. [15] The parties agree that the outcome of the injunction application could have repercussions beyond the rights and interests of the parties involved in this proceeding. The parties also agree, for the most part, that the hearing of the injunction application alone will consume ten days of court time. The plaintiffs' material alone comprises about 4,300 pages and includes 12 expert reports (supported by 14

experts) and 13 affidavits as to fact. [16] The plaintiffs' case plan proposal seeks a direction that an early trial date be set in the proceeding. The plaintiffs suggest that 90 to 100 days will be required for trial and have proposed that the trial start in October 2019. The defendants are not able to give an accurate estimate of trial time at this stage in the proceeding, but believe that more than 100 days will be required. Terms of the Case Plan Order [17] The defendants' respective case plan proposals align on the major steps in the litigation. The difference between the plaintiffs' and the defendants' proposals is that the former advocates for a more aggressive schedule, while the latter say that theirs is the more realistic and rational plan. Essentially, the plaintiffs' proposal has the parties focusing on an early date for the injunction hearing and either deferring or having other steps only partially completed until after the injunction hearing is concluded. Under the defendants' proposals, the injunction application would be set down for hearing sometime between July 24 and September 30, 2018. [18] Having considered the submissions of counsel and more carefully reviewed the case plan proposals, I find that the most prudent schedule for the steps leading up to the injunction application is that proposed by Hydro albeit with some modest changes. The injunction

application should commence by no later than September 10, 2018. As well, I have set deadlines for the hearing of certain other interlocutory applications. Nevertheless, I am mindful that a case management judge might have a different view of the appropriate schedule as this proceeding evolves. The case management judge can always amend this order pursuant to SCCR 5‑3(1) (b). [19] As for the reasons behind the resulting case plan order, I am unable to find that the plaintiffs are prejudiced if the injunction application is heard as late as in September 2018. There is an agreement in place that Hydro will notify the plaintiffs of any change in the construction plan. While the plaintiffs and Hydro are adversaries in this litigation, there is no factual basis for the court to conclude that Hydro will not abide by that agreement. Nonetheless, the October 1, 2018 date looms large presently. The injunction hearing should not go beyond or bump up against that date as this would leave the presiding judge with no time to deliberate before construction in the critical areas begins again. [20] The schedule proposed by Hydro is less likely to lead to an adjournment of the injunction application. An adjournment should be avoided as, in my experience, judicial schedules are not so flexible as to allow a ten-day hearing to be put over for a few weeks or a few months, even if a case management

judge is presiding. [21] Contrary to the plaintiffs' submissions, I find that the pleadings should be finalized well in advance of the injunction application. Both Hydro and the Province say that the plaintiffs' claim is outside of existing jurisprudence and both have demanded further particulars before filing their responses. At least Hydro is not satisfied with the plaintiffs' answer to the demand leaving open the possibility of an interlocutory application on that issue. [22] The court hearing the injunction application will need to determine whether the plaintiffs have a prima facie claim based on the pleadings. It is not for me to say whether that test is met on the notice of civil claim as it now stands. However, in order to address that test, the defendants must be able to understand the case pled by the plaintiffs. [23] The pleadings will also dictate the type of evidence presented at the injunction hearing. In that regard, Hydro and the plaintiffs agree that there will be cross-examination of some affiants in advance of the hearing. Before that cross-examination occurs, Hydro will seek an order excluding some portions of the plaintiffs' evidence from the hearing's record. Hydro proposes that the timing of that application be determined by the case management judge. The plaintiffs say that the admissibility issue is better argued as part of the injunction application.

The plaintiffs suggest that the injunction hearing could be set for 12 or 13 days to accommodate such submissions. [24] In my view, the defendants' admissibility/exclusion application should take place before the cross-examination of affiants occurs. The evidentiary record will dictate the scope of that cross-examination and indeed the legal arguments made at the injunction hearing. It is possible that the presider hearing the admissibility/exclusion application will defer the matter to the injunction presider but that is not a given, particularly if a case management judge hears both applications. [25] I also agree with Hydro's position that not only will the court benefit from the parties' delivering written submissions in advance of the injunction hearing, but the parties are more likely to obtain a speedy result if this step is taken. [26] Another step that should precede the injunction application is Hydro's proposed application to transfer these proceedings, in part or in whole, to the Vancouver registry. The outcome of that application may influence the assignment or reassignment of a case management judge and will certainly impact the judicial resources to be reserved for the injunction application. It is far better to have that matter resolved early in the proceedings, even if it means taking time away from the parties' preparation for the injunction application. [27]

In terms of a trial date, I am not persuaded that the parties are ready to give a reasonable time estimate. In addition, it would be unfair to other litigants to direct that the court's schedule be blocked for the proposed 90 to 100 days, especially when the trial might need to be coordinated with the schedule of a case management judge. [28] In the result, the case plan order pronounced is as follows: Pleadings a) Application for further and better particulars: Applications by any of the defendants to be filed by February 28, 2018 and set to be heard on a mutually convenient date prior to April 13, 2018. b) Defendants to file responses to civil claim: Hydro and the Province to file response to civil claim within 21 days of receipt of the court's decision on the particulars application if no particulars ordered, or within 21 days of the receipt of any further and better particulars ordered by the court. Canada to file its response to civil claim by April 30, 2018. c) Plaintiffs to file reply to responses to civil claim, if any: Within 21 days of service of responses. Interlocutory Injunction Application a) Defendants to serve notices of applications in relation to any issues of admissibility of the plaintiffs' affidavits that the defendants consider ought to be determined as a preliminary matter: By March 16, 2018 with application set to be heard on a mutually convenient date

prior to April 13, 2018. b) Defendants to file responses to Injunction application and responding affidavits: By April 30, 2018. c) Plaintiffs to serve notices of application in relation to any issues of admissibility of the defendants' affidavits that the plaintiffs consider ought to be determined as a preliminary matter, if any: Timing of the filing and the hearing of application to be discussed with a case management judge if assigned, or otherwise as agreed between counsel. d) Plaintiffs to file reply affidavits, if any: Within 21 days of receipt of the defendants' affidavits or by May 21, 2018. e) Cross-examination on affidavits: Parties to complete cross-examinations, as agreed or ordered, within four weeks of receipt of Plaintiffs' reply affidavits, or between May 22 and June 18, 2018. f) Exchange of written submissions: Plaintiffs' written submissions to be filed and served by July 2, 2018. Defendants' written submissions to be filed and served 14 days following receipt of plaintiffs' written submissions or by July 16, 2018 at the latest. Plaintiffs to file and serve written reply, if any, by July 23, 2018. Submissions of all parties are to include identification of, and submissions on, the admissibility of any evidence to which objection is taken but has not already been dealt with in a court order or agreement between the parties. g) Hearing of Injunction

application: To commence on a mutually agreeable date after July 23, 2018 but no later than September 10, 2018. Time estimate: 10 days. Other a) Any application for a change of venue for part or all of this proceeding be filed before April 30, 2018 for hearing on a mutually convenient date. b) The case planning conference is otherwise adjourned generally. [29] It is assumed that the Province will draw the case plan order as that defendant took out the notice of the conference. The order as drawn should conform with Form 21 of the SCCR. "C.P. Bouck" Master C.P. Bouck [1] Together with the Bennett and Peace Canyon Dams, but the focus of submissions was Site C. [2] PD-4 addresses the early assignment of a trial judge and the appointment of a case management judge. As I read PD-4, a case management judge may not necessarily be the trial judge. In this case, the parties are seeking the early assignment of a trial judge to case manage the proceedings.