Professional Documents
Culture Documents
S169064
Vancouver Registry
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 the Plaintiff British Columbia
The application respondents consent to the granting of none of the orders set out In Part
1 of the notice of application.
Part 2: ORDERS OPPOSED
The application respondents oppose the granting of all of the orders set out In Part 1 of
the notice of application.
The application respondents take no position on the granting of the none of the orders
sought in Part 1 of the notice of application.
Part 4: FACTUAL BASIS
Overview
1. The Piaintiffhas 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 Hydro or its ratepayers will arise from construction deiay.
The Parties
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 injunctive relief
and damages.
6. The application respondents Ken 8oon, Arlene 8oon, Yvonne Tupper, Helen
Knott and 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.
9. The Plaintiff relies almost entirely on hearsay affidavit evidence on the material
issue of whether the Defendants trespassed or interference with the Plaintiffs
activities. On that issue, the Plaintiffoffers only two affidavits containing hearsay.
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 online and provided Mr. Hayes with
copies.
13.The Powell Affidavit 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, of events that he himselfhas not witnessed, that have been
video recordings made by security contractors into its evidence on the Injunction
Application, it has withheld others videos taken by securitystafffrom Exhibit B to
the Powell Affidavit [Powell Affidavit, para. 7].
16.Some of the videos within Exhibit B to the Powell Affidavit are inconsistent with or
do not support the claims made by security staff in their dailystaff reports or their
verbal statements to Mr. Powell. In his affidavit, Mr. Powell does not address or
explain these inconsistencies.
17.There is no evidence that the people who allegedly made these observations,
and that wrote daily reports or made video recordings, were unable or
unavailable to provide direct evidence.
On the material issue of whether the Respondents trespassed or interfered with the
Applicant's activities, the Applicant also reiies on unsourced hearsav
18.In addition to 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 interfered with the Plaintiffs activities. The
hearsay evidence in the three affidavits on this issue is unsourced.
19.The Affidavit #1 of Cameron Penfold, affirmed January 28,2016 (Tenfold
20.Atparagraphs 7-10 of his 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 gives evidence about actions taken and reported by this
unidentified Clearing Contractor. Among other things, he claims that "two
Individuals"stood in front of a machine on January 4,2016. However, Mr.
Penfold did not witness this alleged event, and he does not identify the source of
his information and belief as to this alleged event.
21.There is no evidence that the unidentified people who provided Mr. Penfold with
the information at paragraphs 7-10 were unable or unavailable to provide direct
evidence. Further, in contrast to paragraphs 7-10, at paragraphs 11-12 of his
Affidavit, Mr. Penfold identifies a source of the latter information.
22.At paragraphs 14>16 of his affidavit, Mr. Penfold offers opinions based upon
hearsay evidence of his "discussions withthe Clearing Contractor". Again, he
never identifies the 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.
26.Atparagraph 56 of his affidavit, Mr. Watson gives this double hearsay evidence:
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I am advised by Doug Powell, BC Hydro Safety and Security who
has been to the camp set up by the Defendants on the south bank, that the
location of the camp as plotted by BC Hydro security personnel, using GPS
coordinates, lies directly in the path where the retention dike will be built.
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
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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 Block E.
evidence of his opinion that structures are "directly in the way" of future
archeological work at the site, or was unable to provide Ms. Jackson with the
GSP work underlying Exhibit G.
33. At paragraph 24, Ms. Jackson gives as "hearsay opinion evidence" 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 BC Hydro staff 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 opinion that ail camp infrastructure would need to be removed to
complete archaeological work in Block E.
Facts relevant to the failure to enforce the Land Act
34. The Plaintiffand the Ministry of Forests, Lands and Natural Resource Operations
have failed to take any appropriate steps to pursue statutory remedies. The
Operations has ever notified the Defendants that they are trespassing under the
Land Act 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 Land Act On January 20,2016, in an email to an
employee ofthe Plaintiff, a Ministry employeewould 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 placed at the site In mid-January 2016. These two cabins 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 told by either the Applicant or the Ministry that Ministry staff determined that
the structures are unauthorized under the Land Act
40.The Plaintiff has not posted any signs that are compliant with the Land Act
limiting access to the Rocky Mountain Fortsite or adjacent Crown lands. Ithas
not posted any signage advising that access to that site was limited.
41.The Plaintiffs security 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
Rocky Mountain Fort 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 other materials. The sign did not state any
time or place of any contravention of the LandAct, did not state any detaiis of
any contravention of the Land Act, and did not othenvise compiy with s. 59(2) the
Land Act.
43. The Defendants have not been notified of any aiieged La/idiAcf violations in a
manner consistent with s. 59(1) of the Land Act They were not served with any
Land Act notice in person or by registered mail.
44. The Ministry of Forests, Lands and Natural Resource Operations has numerous
processes In place for reporting any misuses of Crown land to 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 made any effort to apply the enforcement provisions ofthe Land
Act The Plaintiff has not asked the Ministry or its enforcement staff to enforce s.
60 against the Defendants, by following any of the 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
48. The Plaintiff has failed to demonstrate harm and irreparable harm. The PiaintifPs
evidence of irreparable harm is set out in the Affidavit #1 of Michael Savldant
affirmed on January 28,2016 ("Savident Affidavif).
49. The Savidant Affidavit is unqualified opinion that does not comply with Rule 11,
and is based upon contractual dccuments that have been withheld from
evidence.
compare the cost Impacts of delay that he has identified in his Affidavits with
estimates of the benefit that BC Hydro would realize from the deferral of
53. Further the Defendants' Expert Evidence, and in particular the McCullough
Affidavit, demonstrate that a delay in construction activities would result in a net
financial benefit to the 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 $267.68 million; he estimates the net savings of a
two year delay at $519.44 million; and he estimates the net savings of a five year
delay at $1,187.47 million. Given the magnitude of these savings, inclusion of
ongoing costs of delay would almost certainly result in the same conclusion
[McCullough Affidavit, Exhibit B, p. 33].
55.Additionally, Dr. Shaffer concludes that the benefit of deferring remaining
expendituresfor four years would be in the 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 in the development of the Site C project could
result in significant savings and net benefits for BC Hydro and its customers
[Shaffer Affidavit, Exhibit D, p. 35; see also Elisen Affidavit, para. 15]
57.The Defendants omit key documents, upon whichthey rely heavily, from their
Affidavits. Noexplanation for these omissions is given by the Plaintiff.
58.The Plaintiff has omitted from its affidavits a complete copy of the "Clearing
Contract" and a complete copy of the "Main Civil Works Contract", including parts
of the Main Civil Works Contract that govern the project schedule and delay and
liquidated damages provisions in 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 on these contracts in its Notice ofCivil
Claim and Notice of Application, and in its affidavit materials.
1. With respect to the Main Civil WorksContract, twoof the Plaintiffs affiantsreferto or rely upon
the Main Civil Works Contract in their affidavitevidence [Watson Affidavit paras. 26-27 and 60-62;
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60. For example, at paragraph 61 of the Watson Affidavit, Mr. Watson opines and
speculates that changes to construction plans:
''would be considered a significant change to critical path activities set out
in BC Hydro's contract with PRHP and therefore PRHP is likely to claim
additional costs. In particular, this change would cause acceleration of
other work, re-planning logistics and re-allocating equipment, labour and
associated resources in order to meet its contractual obligations related to
Appendix A to the Applicant's Construction Activity Plan - Dam Site 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 mention the revised project schedule submitted to
provincial regulators [Watson Affidavit, Exhibit J, pp. 276 and 290].
SavidantAffidavit paras. 4-11].-With respect to the Clearing Contract, reliance is found in the
WatsonAffidavit, paras. 25 and 57-59,the SavidantAffidavit paras. 4-11, and the Penfbid
Affidavit, paras. 5 and 17.
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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 now produced 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, for what purpose, or how he 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".
a. contracts relied upon by the Plaintiff, which are referenced Inthe Plaintiffs
affidavits and Its Injunction Application, but that It has not disclosed.
Including but not limited to complete copies of the Clearing Contract and
the Main Civil Works Contract;
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 alleging breaches of the duty to consult First Nations regarding the Site C
project.
70.The Peace Vailey Landowners Association has appealed to the British Columbia
Court of Appeal the decision of Justice Seweli of this Court, reported at Peace
Valley Landowner Association v. British Ck)lumbia (Environment), 2015 BCSC
1129. Its appeal is scheduled to be heard on April 4 and 5,2016. The strength of
the Peace Vailey Landowner Association's appeal Is evident from that party's
factum.
71.A judicial reviewof the licences issued has been argued in the British Columbia
Supreme Court by the West Moberly First Nations and Prophet River First
Nation. Arguments concluded on February 2,2016, and reasons are under
reserve. The issue Is whether the Province breached a Consultation Negotiation
1. The Plaintiff has not satisfied the three>step common law test for an interlocutory
injunction: RJR-MacDonald Inc v. Canada (Attomey General), [1994] 1 SCR
311.
The Applicant has not tendered anv non-hearsav evidence of a serious issue
3. The Plaintiff pleads that there is a serious issue of whether the Defendants have
committed torts and other legai wrongs by interfering with the Plaintiffs rightto
clear trees in the "Lower Reservoir Area" of the Site C project.
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6. The Court should disregard hearsay evidence on the material issue of whether
the Defendants have trespassed or interfered with the Plaintiffs activities.
7. While litigants are permitted by the Rules of Courtto relyon hearsay evidence on
an interlocutory application, this rule"is more nuanced on injunction
applications": P.O. v. British Columbia^ 2010 BOSC 290.
8. The Defendants rely on the Court's decisions in Litchfield v. Darwin (1997), 29
BCLR (3d) 203 (BCSC) and in Le SoieiiRestaurant inc. et ai v. NomanI et ai,
2005 BCSC 1804. in those decisions, the Court refused to grant interlocutory
o Utchfield does not stand for the proposition that the court ought to decline
to grant an interlocutory injunction only in circumstances where all of the
evidence presented is hearsay. The vital point identified by the court
in Utch^eld was that the pertinent material and facts in issue did not go
beyond statements based on information and belief (para 49);
o Injunctive relief is drastic and extraordinary, such that the court ought to
receive direct evidence on essential facts in dispute on interlocutory
applications of 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).
11 .The Defendants submit that the Court should follow Utchfield and Soleil and
decline to grant the requested injunction. Almost the entirety of the evidence on
the material issue of whether the Defendants have trespassed or interfered with
the Plaintiffs activities is hearsay, including unsourced and double hearsay.
paragraphs 7-10 and 14-17, that is contrary to Rule 22-2(13) and is inadmissible.
This Court should strike or disregard those portions of the Penfold Affidavit.
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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 direct evidence in paragraphs 69-71 of his
Affidavit. Mr. Powell's three paragraphs of direct evidence is very limited and is
manifestly insufficient to obtain the 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 direct observations are not
availableto give evidence), it is not even plausibleto suggest that it would be
inconvenient for the Plaintiffs contractors and employees who allegedly made
the observations to make 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 in the 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 of the observations documented in the 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 Affidavit.
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22.Mr. Hayes also does not offer any directevidenceon 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 whole or In part, double
hearsay. Mr. Hayes does not appear to have personally gathered the evidence
affixed as exhibits to his affidavit. He does not aver that he did so. He does not
aver that he personally located the news articles online. 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, obtained and 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 It would be
paragraphs 7-10 and 14-17. He does notdisclose the 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 work conducted by these unidentified
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29. Likewise, the Jackson Affidavit gives unscurced hearsay on this material issue at
paragraphs 23-24. As with the Watson Affidavit, Ms. Jackson's information also
comes from Mr. Powell as well as from Exhibit G - which was created by
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 evidence of anv tortious or illegal behaviour
30.The Plaintiff has not provided any direct evidence of any tortious behaviour,
amounting to nuisance, intimidation, inducement of breach of contract,
interference with economic relations by unlawful means or conspiracy.
31. Indeed, the Plaintiffhas 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 in the area. The hearsay evidence does not show that the Defendants
have behaved in an obstructionist, intimidating or interfering manner whatsoever.
32. In no way does the Defendants' presence at the Rocky Mountain Fort remotely
equate to intimidation or mischiefunder ss. 423 or 430 of the Criminal Code. In
no way does the Defendants' presence at the Rocky Mountain Fort site amount
to a breach of section 13 of the Heritage Conservation Act
35. On January 20,2016, the Plaintiff asked the Ministry of Forests, Land and
Natural Resources Operations to opine that that the "occupation"of the Rocky
Mountain Fort site was unauthorized under the Land Act. 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 only take the
position that the structures at that site were unauthorized.
The Plaintiff, a oovemment corporation, should not 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 Land Act, 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
39. The Land Act sets out the rights and responsibilities of the Crown In the
administration of public land. The procedures in s. 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 in therefore intended to
provide due process for those accused of trespass on Crown lands - Sager, at
para. 33.
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43.The Ministry of Forests, Lands and 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 it is a govemment corporation referred to in s.97. However, there is no
indication that the Plaintiff has sought these powers from the Ministry. It also
prefers to turn to this Courtfor an extraordinaryand broad exercise of equitable
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 Land Acfwould deprive those individuals, who might 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 status quo will not cause the Plaintiff irreparable harm in the form of
increased costs
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 it need 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. In British Columbia, 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
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SO.The Defendant has filed the Affidavits of Mr. McCullough, Dr. Shaffer, Mr.
Raphals and Mr. Eliesen, all ofwhom are qualified to give opinion evidence of
the net cost of delay. Theiropinions concur that construction delays will not
result in net costs for BC Hydro or its ratepayers:
McCuliough
Affidavit, Exhibit B,
Ex. p.33
Shaffer Affidavit,
Raphals Affidavit
Eliesen Affidavit,
para.15
demand.
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51.In contrast, the SavidantAffidavit makes no effort to comply with Rule 11.
Moreover, his curriculum vitae, released In other legal proceedings, casts doubt
on those qualifications. The Savidant Affidavit is inadmissible opinion evidence
and should be struck.
52. In contrast to the McCuliough Affidavit, the Shaffer Affidavit, the Raphals Affidavit
and the Ellesen Affidavit, the Savidant Affidavit estimates the cost of delaying
53.The McCuliough Report identifies the following specific difficulties with Mr.
Savldant's estimate, among others:
that itsubmitted to regulators in March 2015 or the terms of its contracts that
relate to projectscheduling, relevant to meeting its burden of proofon the issue
of irreparable harm. The Savidant Affidavit 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 public Interests.
57.In light of the evidence that delaying construction would create a net financial
benefit for 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 the Peace River, in the Lower Reservoir Area. This
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.
63. Further, the West Moberly First Nations and Prophet River First Nation, whose
appeals to the BC Court of Appeal and Federal Court of Appeal are ongoing,
would suffer irreparable harm from the Applicant's tree clearing activities which
would undermine their ability to exercise their constitutionally-protected traditional
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rights. The harm to the West Moberly First Nations' and Prophet River First
Nation's rights should be 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 shortcut with this project
Itshortcut due dilligence by bypassing the BC Utilities Commission, it shortcut
the First Nations by failing to consult, it shortcut the administration of justice by
failing to wait for the results on appeal before trammelling over First Nations
territory, it shortcut the Land Act 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
benefit to 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 BE RELIED ON
Plaintiffs Affidavit#1
Plaintiffs Affidavit#1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1
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The application respondents estimate that the application will take three days.
The application respondents have filed in this proceeding a document that contains the
application respondents' address for service.
Jason GratI
ndents / Defendants
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