Forest Glen Wood Products Ltd. v. British Columbia (Minister of Forests), (2009) 277 B.C.A.C. 297 (CA)

• Judge: Huddart, Levine and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 20, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 277 B.C.A.C. 297 (CA);2009 BCCA 492

Forest Glen Wood Products v. B.C. (2009), 277 B.C.A.C. 297 (CA);

    469 W.A.C. 297

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. NO.036

Forest Glen Wood Products Ltd. (appellant/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Forests (respondent/defendant)

(CA034915; 2009 BCCA 492)

Indexed As: Forest Glen Wood Products Ltd. v. British Columbia (Minister of Forests)

British Columbia Court of Appeal

Huddart, Levine and Tysoe, JJ.A.

November 6, 2009.

Summary:

The defendant applied under Supreme Court Rules 18 and 19(24) for an order striking the plaintiff's statement of claim.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. B70, struck out those paragraphs of the plaintiff's statement of claim which pleaded breaches of contract and negligence as disclosing no reasonable claim. That left negligent misrepresentation as the only remaining cause of action. The plaintiff sought to appeal the order and restore the struck claims. An issue arose as to whether leave to appeal was required.

The British Columbia Court of Appeal, per Finch, C.J.B.C., in a decision not reported in this series of reports, held that leave was not required. The defendant applied under s. 9(6) of the Court of Appeal Act to discharge or vary Finch, C.J.B.C.'s order. There were three issues on the application: 1) were rule 19(24) orders inherently matters of "practice or procedure" under s. 7 of the Court of Appeal Act, and hence required leave; 2) which was correct - the application or the order approach; and 3) was Hayes Forest Services Ltd. v. Weyerhaeuser Co. (2008, B.C.C.A.) correctly decided?

The British Columbia Court of Appeal in a decision reported at (2008), 262 B.C.A.C. 183; 441 W.A.C. 183, dismissed the application. The court held that not all rule 19(24) orders were matters of practice or procedure and should be treated as interlocutory; those having a dispositive effect on a substantive part of the action, as in the present case, were final; the order approach should govern and the reasoning in Hayes was affirmed.

The British Columbia Court of Appeal held that it was plain and obvious that the plaintiff had no reasonable cause of action for breach of contract, negligence, or restitution, and the chambers judge correctly struck out those claims under rule 19(24).

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - General - [See second Forests and Forest Products - Topic 4647 ].

Forests and Forest Products - Topic 4647

Sale of timber - Stumpage fees - Calculation of - Reappraisal - The plaintiff sued the Province for breach of contract, negligence and restitution, in connection with the reappraisal of the stumpage fee payable by the plaintiff under a timber sale licence - A chambers judge struck out the claims under rule 19(24) on the ground that the plantiff's remedies in respect of all matters concerning stumpage fees were governed by the appeal provisions of the Forest Act and it was an abuse of process to use civil proceedings where a statutory process was available - The British Columbia Court of Appeal agreed with the chambers judge that all matters concerning stumpage fees fell within the statute, including the procedure for objection.

Forests and Forest Products - Topic 4647

Sale of timber - Stumpage fees - Calculation of - Reappraisal - The plaintiff sued the Province for breach of contract, negligence and restitution, in connection with the reappraisal of the stumpage fee payable by the plaintiff under a timber sale licence - A chambers judge struck out the claims under rule 19(24) - The British Columbia Court of Appeal upheld the decision - The court stated that "An analysis of the [plaintiff's] claims, in the context of the statutory scheme [Forest Act], leads to the conclusion that it has no common law claims and there are no common law remedies available to it. The licence contains no contractual promises with respect to the determination of stumpage, nor could there be. The statutory scheme governs. Thus there can be no claim for breach of contract. Nor are there any common law duties of care with respect to the determination of stumpage. A negligent breach of the statutory duty to determine, redetermine, and vary stumpage does not fall within any known category of negligence, and if there were sufficient proximity between the government and licence holders to recognize potential liability, policy considerations would negate it ... Further, there can be no free-standing claim for repayment of stumpage allegedly overpaid, without establishing that there was no juristic reason for the government to collect it. The question of whether the government properly imposed the stumpage falls within the statutory scheme." - See paragraphs 29 and 30.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See second Forests and Forest Products - Topic 4647 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See second Forests and Forest Products - Topic 4647 ].

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - [See second Forests and Forest Products - Topic 4647 ].

Torts - Topic 9165

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Forest authorities - [See second Forests and Forest Products - Topic 4647 ].

Cases Noticed:

Canadian Forest Products Ltd. v. British Columbia et al., [2009] B.C.T.C. Uned. 1040; 2009 BCSC 1040, refd to. [para. 5].

MacMillan Bloedel Ltd. et al. v. British Columbia (Minister of Forests) et al. (2000), 138 B.C.A.C. 290; 226 W.A.C. 290; 2000 BCCA 351, refd to. [para. 7].

International Forest Products Ltd. v. British Columbia, [2004] B.C.T.C. 387; 2004 BCSC 387, refd to. [para. 17].

Gemex Developments Corp. v. Coquitlam (City) et al., [2002] B.C.T.C. 412; 2002 BCSC 412, affd. (2002), 176 B.C.A.C. 314; 290 W.A.C. 314; 2002 BCCA 573, refd to. [para. 17].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, dist. [para. 21].

Rawluk v. Rawluk, [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81, refd to. [para. 22].

Holland v. Saskatchewan et al., [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 30].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 30].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 31].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Counsel:

J.M. Duncan, for the appellant;

A.K. Fraser and B. Bandechha, for the respondent.

This appeal was heard at Vancouver, B.C., on October 20, 2009, by Huddart, Levine and Tysoe, JJ.A., of the British Columbia Court of Appeal. Levine, J.A., delivered the following reasons for the court on November 6, 2009.