Ainsworth Lumber Co. v. Canada (Attorney General) et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Cumming, Newbury and Hall, JJ.A.
• Citation: 2001 BCCA 105,(2001), 149 B.C.A.C. 263 (CA)
• Date: 11 January 2001

Ainsworth Lumber v. Can. (A.G.) (2001), 149 B.C.A.C. 263 (CA);

    244 W.A.C. 263

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MR.111

Ainsworth Lumber Co. Ltd. (plaintiff/respondent) v. The Attorney General of Canada and Paul Martin (defendants/appellants)

(CA027732; 2001 BCCA 105)

Indexed As: Ainsworth Lumber Co. v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Cumming, Newbury and Hall, JJ.A.

February 12, 2001.

Summary:

The plaintiff bid on, was awarded and began a certain construction project in the belief that it would qualify for a special investment tax credit. Before construction, the federal Minister of Finance announced the discontinuance of the tax credit, but with a transition period which the plaintiff believed applied to it. After con­struction, the government bill used a differ­ent wording than previously announced, resulting in the plaintiff's dis­qualification for the transitional relief. The plaintiff sued the government and the fed­eral Minister in the B.C. courts for dam­ages for negligent mis­representation. Meanwhile, the plaintiff's claim to the tax credit was disallowed. It appealed to the Tax Court. The defendants applied for a tempo­rary stay of the B.C. proceedings pending determination of the litigation in the Tax Court.

The British Columbia Supreme Court, in a decision reported in [2000] B.C.T.C. 694, dismissed the application for a stay of the B.C. action. The court found that the de­fen­dants would not be prejudiced in their ability to defend the B.C. action or the Tax Court action. The two actions were not determina­tive of the same matter. Further, the parties in the two actions were not the same. The added costs involved in having the two actions was not per se an abuse of process. The result in the Tax Court action would only affect the possible damages in the B.C. action. The Tax Court was not an appropri­ate forum to determine the plain­tiff's dam­ages dispute. Therefore, the pro­ceedings were not "parallel". The plaintiff would suffer a juridical disadvantage of not having its claims resolved if the B.C. action was stayed. The defendants appealed, with leave.

The British Columbia Court of Appeal allowed the appeal and stayed the B.C. action until a decision was rendered by the Tax Court.

Editor's Note: For another related case, see [2000] B.C.A.C. Uned. 226.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - The plaintiff negotiated a con­struction project, be­lieving it qual­ified for a special invest­ment tax credit - Before construc­tion, the federal Minis­ter of Finance announced the dis­continu­ance of the tax credit, but with a transi­tion period which the plain­tiff believed applied to it - After con­struc­tion, the government bill used dif­ferent wording, disqualifying the plaintiff from the tran­sitional relief - The plaintiff sued the govern­ment and Minis­ter in B.C. for negli­gent misrepre­senta­tion - Meanwhile, the plaintiff appealed to the Tax Court the disallowance of its claim to the credit - The British Colum­bia Court of Appeal stayed the B.C. action pending deter­mi­nation of the tax case - The actions sought to attain the same economic result against the gov­ernment by different routes - See para­graphs 4 to 15.

Practice - Topic 5277.1

Trials - General - Stay of proceedings - Abuse of process - [See Practice - Topic 5277 ].

Cases Noticed:

Bennett et al. v. British Columbia Securi­ties Commission (1992), 18 B.C.A.C. 191; 31 W.A.C. 191; 69 B.C.L.R.(2d) 171 (C.A.), not appld. [para. 7].

Westec Aerospace Inc. v. Raytheon Air­craft Co. (1999), 122 B.C.A.C. 18; 200 W.A.C. 18 (C.A.), not appld. [para. 7].

472900 B.C. Ltd. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233; 57 B.C.L.R.(3d) 332 (C.A.), refd to. [para. 9].

Delsom Estates Ltd. v. Delta (District), [1994] B.C.J. No. 1917 (S.C.), appld. [para. 11].

Counsel:

M. Ciavaglia, for the appellants;

M.R.V. Storrow, Q.C., and B. Elwood, for the respondent.

This appeal was heard before Cumming, Newbury and Hall, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on January 11, 2001. The decision of the court was delivered by Hall, J.A., on February 12, 2001.