COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

P. Kiewit Sons Co. v. Perry,

 

2006 BCCA 259

Date: 20060523


Docket: CA034086

Between:

Peter Kiewit Sons Co. &

Sea-To-Sky Highway Investment Limited Partnership

Respondents

(Plaintiffs)

And

Dennis Perry, Bruce McArthur,

John Doe & Jane Doe

Applicants

(Defendants)


 

 

Before:

The Honourable Madam Justice Levine

(In Chambers)

Oral Reasons for Judgment

D.C. Harbottle

J. Thayer

Counsel for the Applicants

P.L. Rubin

Counsel for the Respondent Sea-To-Sky Investment Limited Partnership

D.A. Brindle, Q.C.

Counsel for the Respondent Peter Kiewet Sons Co.

N.E. Brown

Counsel for the Attorney General of British Columbia

Place and Date:

Vancouver, British Columbia

23 May 2006

 

 

[1]                LEVINE, J.A.: On May 15, 2006, Mr. Justice Grist made an order enjoining the applicants, Messrs. Perry, McArthur and others, from interfering with the construction of a five-kilometre portion of the Sea-to-Sky Highway over the Eagleridge Bluffs near Horseshoe Bay in West Vancouver. The applicants oppose any highway construction in the area of the Eagleridge Bluffs because of adverse environmental effects. They seek an interim stay of proceedings until their application for leave to appeal and a stay of proceedings pending appeal can be heard in approximately a week. 

[2]                The respondents, Peter Kiewit & Sons Co. and Sea-to-Sky Investment Limited Partnership, applied for the injunction after the applicants blocked access to and obstructed construction in the area. The Eagleridge Bluffs & Wetlands Preservation Society, of which the applicants are directors, applied by petition for an interim injunction preventing the respondents from proceeding with construction.  After six-and-a-half days of hearing both applications, which included viva voce cross-examination on affidavits, Grist J. granted the respondents’ application for an injunction and dismissed that of the Society (his reasons for judgment are indexed at 2006 BCSC 815).

[3]                The applicants claimed that the respondents have not followed the procedure for obtaining approvals mandated in the Environmental Assessment Certificate issued in June 2004 under the Environmental Assessment Act, S.B.C. 2002, c. 43, to the Ministry of Transportation for the Sea-to-Sky Improvement Project.  They raise two requirements which they describe as “pre-conditions” to construction of the section of the Project that includes the Eagleridge Bluffs. (The whole of the Project extends from Horseshoe Bay to Whistler; the section that includes the Eagleridge Bluffs extends from Horseshoe Bay to Sunset Beach, and is called “DB1” in the relevant documents.)  The applicants claim that the Certificate requires that an Environmental Management Plan (“EMP”) for all of the DB1 section of the Project, and a Compensation Plan for the threatened ecosystems in the Horseshoe Bay area, be developed before construction starts. 

[4]                When these proceedings commenced, neither an EMP for the DB1 section of the Project, nor a Compensation Plan, had been made available to the public. The respondents had prepared two “phased”, or what the applicants term “fractured”, EMP’s for specific aspects of the construction in a portion of DB1. 

[5]                On the basis of these alleged failures to comply with the Certificate, the applicants defended the respondents’ injunction application on the ground that the respondents were acting unlawfully in proceeding with construction. In its petition, the Society sought orders quashing the Certificate and the decision of the Ministry of Transportation to proceed with construction of the highway instead of a tunnel; a declaration that the phased EMP’s do not comply with the Act or the Certificate; and injunctions restraining construction until these legal issues could be determined.

[6]                During the course of the hearing, it was disclosed, in the affidavit of Ms. Isobel Doyle, the Environmental Manager of the Project for the Ministry of Transportation, that a Compensation Plan existed, and that the respondents and the authorities responsible for reviewing and accepting compliance with the Certificate had determined that phased EMP’s would be more effective to manage the environmental issues than one plan for an entire section.

[7]                The chambers judge considered on the merits the claims of the applicants and the Society that the respondents were acting unlawfully in proceeding with construction. He concluded that the Society had not satisfied the first test for granting an interim injunction: that there is a serious question to be tried: see RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

[8]                The chambers judge rejected outright (at para. 7) the claim that either the process leading to the issuance of the Certificate or the decision of the Ministry to construct the highway as opposed to a tunnel were subject to challenge.  He concluded (at para. 10) that the phased EMP’s were not contrary to the conditions of the Certificate and (at para. 11) that the uncontroverted evidence showed that a Compensation Plan was in place. He also concluded (at para. 13) that there was no triable issue or significant harm in respect of clearing an access road (the “Black Mountain Trail”), an issue that arose during the hearing.

[9]                There was no dispute that the applicants were acting unlawfully in blocking access to and obstructing construction. Mr. Justice Grist found (at para. 17) that they were contravening s. 64(1) of the Transportation Act, S.B.C. 2004, c. 44:

64  (1)  A person must not

(a) directly or indirectly interfere with or obstruct the planning, design, acquisition, holding, construction, use, operation, upgrading, alteration, expansion, extension, maintenance, repair, rehabilitation, protection, removal, discontinuance or closure of a provincial public undertaking, or of any related land or improvement, that is authorized under this Act, another enactment or at law, or

. . .

[10]            Having rejected the applicants’ defence and the Society’s application on the merits, the chambers judge did not expressly consider the other two matters an applicant must establish on an application for an interim injunction: that it would suffer irreparable harm if the injunction were not granted; and that the balance of convenience favours granting the injunction: see RJR-MacDonald, at paras. 43, 57-60, 62-74, 78-81. He did, however, note (at para. 10) that the evidence that the phased EMP’s better dealt with “time-sensitive concerns individual to project stages” and the Society had not shown that any harm resulted from the change (that is, from not providing an EMP for all of DB1), bore on the “balance of inconvenience”.

[11]            The orders granting the injunction to the respondents and dismissing the Society’s application were entered May 18, 2006.

[12]            On an application for a stay in this Court, the applicant must establish the same three matters as must be established on an application for an interim injunction: that there is a serious question to be tried; that the applicant would suffer irreparable harm if the stay was not granted; and that the balance of convenience favours a stay: see Coburn v. Nagra, 2001 BCCA 607 at para. 3. Other principles applied in this Court (summarized in Roe, McNeill & Co. v. McNeill (1994), 49 B.C.A.C. 247,  quoted in Coburn at para. 11) include that a successful plaintiff is entitled to the fruits of his judgment and should not be deprived of them unless the interests of justice require that they be withheld; the court’s power to grant  a stay is discretionary and should only be exercised where it is necessary to preserve the subject matter of the litigation or to prevent irremedial damage or where there are other special circumstances; the court may weigh the interests of the parties, the balance of convenience and any prejudice that may arise; a first step is to consider whether the appeal is without merit or has no reasonable prospect of success.

[13]            In considering the merits of an appeal on an application for a stay, (that is, whether there a serious question to be tried), it is relevant to bear in mind that this Court, on an appeal of a discretionary decision of a chambers judge on an injunction application, will only interfere if the chambers judge has erred in principle or made an order which is not supported by the evidence, or it appears that the order appealed from will result in an injustice: see Mikado Resources Ltd. v. Dragoon Resources Ltd. (1990), 46 B.C.L.R. (2d) 352 at 357 (C.A.), Wood J.A. (In Chambers).

[14]            On the other hand, as Sopinka and Cory JJ. said in RJR-MacDonald (at para. 49):

What then are the indicators of "a serious question to be tried"?  There are no specific requirements which must be met in order to satisfy this test.  The threshold is a low one.  The judge on the application must make a preliminary assessment of the merits of the case.  The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious:  see Metropolitan Stores, supra, at p. 150. …

[Underlining added.]

[15]            In my opinion, the applicants and the Society have raised only one legal question worthy of consideration; that is, whether the phased EMP’s comply with the Certificate. The chambers judge concluded, from a review of the relevant documents and evidence, that they did.  The applicants contend that he exceeded his function in deciding that question in the context of an application for an interlocutory injunction, where the consideration of legal questions is meant to be of a more preliminary nature.

[16]            In this case, however, the hearing extended over a period of six-and-a-half days, an extraordinary length of time for an application for an injunction. The question of whether the staged EMP’s satisfied the conditions set out in the Certificate was essentially a matter of interpreting the Certificate and the Concession Agreement entered into by the respondents with the Province.  It is the Concession Agreement that expressly sets out the intention to develop an EMP for an entire section of the Project. The applicants contend that the chambers judge was wrong in concluding that the parties to the Concession Agreement have the authority to amend that Agreement and develop phased EMP’s, because, they say, the Agreement reflects the (implicit) terms of the Certificate.

[17]            In my opinion, there is little chance of success on appeal, but I cannot say that the appeal is frivolous or completely without merit. I will therefore move on to consider the latter two considerations on an application for a stay.

[18]            The applicants claim that irreparable harm will occur if the respondents are allowed to proceed with construction. The land will be laid bare in five days, thus, they say, destroying the subject of the litigation. They also invoke the public interest, claiming that public confidence in environmental legislation in Canada and the U.S. will be compromised, leading to the public taking matters into their own hands.

[19]            These are serious claims. On the applicants’ side, it cannot be disputed that every human interference with an existing ecosystem can be considered irreparable: once a tree is cut or a plant species disturbed, it cannot be replaced as it was. On the other hand, the suggestion, or threat, to the Court, that citizens will be moved to disobey the law if the remedy they seek is not granted, is inflammatory and inappropriate.  If citizens seek the intervention of the Court, the rule of law requires that they adhere to its orders and seek alternative, legal, relief if they are dissatisfied with the outcome.

[20]            On the respondents’ side, they have expended and continue to incur considerable sums in obtaining approval for the Project and complying with its conditions. They say that their damages are not fairly capable of calculation, and could not be satisfied by the applicants if the appeal fails in any event.

[21]            The Court’s consideration of whether interference with the environment will cause irreparable harm is necessarily not as black and white as that of the applicants, but must consider the legal context in which the conditions for interfering with the environment by construction of the highway were developed.  Whether “paving over Paradise and turning it into a parking lot” (or a highway) will ultimately cause irreparable adverse environmental effects is a question, phrased differently, that the Legislature has confided to an agency, the Environmental Assessment Office, which has authority under the Act to determine whether a significant adverse environmental effect can be mitigated. If it can, then legally, the effect of that finding is that there is no “irreparable harm”. 

[22]            In this case, the evidence is that there is a Compensation Plan for mitigation of the adverse environmental effects of construction in the area of the Eagleridge Bluffs that has been accepted by all of the responsible authorities of the federal and provincial governments. As the chambers judge noted (at para. 11), the mitigation accepted in the Compensation Plan involves creating replacement habitats away from the construction site, requiring no halt to construction. 

[23]            In the context of this dispute, I am of the opinion that in the legal sense, the applicants have not shown that denying the stay will cause “irreparable harm”.

[24]            That leads to the question of the balance of convenience.

[25]            The applicants complain that they have not been given the opportunity for ‘meaningful public consultation in respect of the EMP’s or Compensation Plan” because they were not posted on the websites for the Project.  In their submissions to the chambers judge, they suggested “dual injunctions” that would accommodate a hearing of the Society’s petition while continuing construction away from the environmentally sensitive areas. At bottom, however, the applicants oppose the construction of a highway through the Eagleridge Bluffs and seek remedies that would stop it. They claim to represent the public interest. This is relevant to the question of the balance of convenience.

[26]            There are differing views of the public interest in this dispute: that of the applicants, who seek to preserve the Eagleridge Bluffs ecosystem; that of the respondents, who refer to improved safety of the new highway; and that of the Ministry and government, who have made public commitments to improve the highway within a budget and to whom delays in construction will result in considerable public cost. The Ministry says that a tunnel is not a viable alternative, and there is no merit to any argument that the chambers judge erred in determining that that is a political decision not subject to review by the courts.

[27]            In RJR-MacDonald, the Supreme Court defined (at para. 66) the “public interest” as including “both the concerns of society generally and the particular interests of identifiable groups”, and assessed the onus of showing the balance of convenience where the public interest is invoked (at para. 71):

…In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

[Underlining added.]

[28]            The evidence supports the conclusion that the activities of the respondents and the Ministry have been undertaken in accordance with the requirements of the applicable legislation, including mitigation of the adverse environmental effects. That weights the balance of convenience in their favour.

[29]            It is my opinion that the applicants have not shown that the balance of convenience favours granting the stay.

[30]            In the result, for the reasons given, I dismiss the application for an interim stay of proceedings.

“The Honourable Madam Justice Levine”