Moulton Contracting Ltd. v. British Columbia et al., 2014 BCCA 134

• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 10, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 134;(2014), 353 B.C.A.C. 289 (CA)

Moulton Contracting Ltd. v. B.C. (2014), 353 B.C.A.C. 289 (CA);

    603 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. AP.010

Moulton Contracting Ltd. (appellant/plaintiff) v. Sally Behn, Susan Behn, George Behn, Richard Behn, Greg Behn, Rupert Behn, Lovey Behn, Mary Behn, Chief Liz Logan on behalf of herself and all other members of the Fort Nelson First Nation, and the said Fort Nelson First Nation (respondents/defendants) and Her Majesty the Queen in Right of the Province of British Columbia (defendant)

(CA041508; 2014 BCCA 134)

Indexed As: Moulton Contracting Ltd. v. British Columbia et al.

British Columbia Court of Appeal

Chiasson, J.A.

April 9, 2014.

Summary:

The Province of British Columbia granted a licence to Moulton Contracting Ltd. to harvest timber. Timber was cut, but the Behns, who were members of the Fort Nelson First Nation (FNFN), blockaded the access road to the harvesting area. Moulton sued the Province, the Behns and the FNFN. The FNFN issued a third party notice against the Province seeking indemnification if it were held vicariously liable for the actions of the Behns. The action against the Behns and the FNFN was dismissed because Moulton had not secured legal access to the road and the Behns' use of the road, which was Crown land, was not "unauthorized by law". The Province was held liable based on negligent misrepresentation and breach of an implied contractual obligation to inform Moulton that Behn had threatened to blockade the road. Moulton's damages were its loss of opportunities it would have pursued had it known of the potential blockade. Moulton filed a notice of appeal. The Province was not named as a respondent. The relief sought was an order setting aside the dismissal of Moulton's action against the Behns and the FNFN and judgment against them. The Province initiated an appeal naming Moulton, the Behns and the FNFN as respondents. The Province sought an order dismissing the action against it or alternatively varying the quantum of damages. The Province applied to be added as a respondent in Moulton's appeal and for an order that Moulton's appeal be heard consecutively to and by the same division that heard the Province's appeal.

The British Columbia Court of Appeal, per Chiasson, J.A., allowed the applications.

Practice - Topic 721

Parties - Adding or substituting parties - Respondents - General - See paragraphs 9 to 15.

Practice - Topic 9138

Appeals - Hearing of appeal - Consolidation of appeals for hearing or hearing of appeals together - See paragraphs 16 to 28.

Cases Noticed:

Strata Plan LMS 1751, Owners v. Scott Management Ltd. et al. (2010), 286 B.C.A.C. 123; 484 W.A.C. 123; 2010 BCCA 192, refd to. [para. 7].

Romfo et al. v. 1216393 Ontario Inc. et al. (2008), 250 B.C.A.C. 195; 416 W.A.C. 195; 2008 BCCA 45, affd. (2008), 253 B.C.A.C. 174; 425 W.A.C. 174; 2008 BCCA 106, refd to. [para. 11].

British Columbia Ferry Corp. et al. v. T & N plc et al. (1994), 52 B.C.A.C. 156; 86 W.A.C. 156; 2 B.C.L.R.(3d) 26 (C.A.), refd to. [para. 11].

Boe v. Murphy et al. (2013), 346 B.C.A.C. 284; 592 W.A.C. 284; 2013 BCCA 498, refd to. [para. 12].

Behn v. Moulton Contracting Ltd. - see Moulton Contracting Ltd. v. British Columbia et al.

Moulton Contracting Ltd. v. British Columbia et al., [2010] B.C.T.C. Uned. 506; 2010 BCSC 506, affd. (2011), 309 B.C.A.C. 15; 523 W.A.C. 15; 335 D.L.R.(4th) 330; 2011 BCCA 311, affd. (2013), 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 14].

Counsel:

C.F. Willms, for the appellant;

K. Horsman and A. Peacock, for the respondent, Her Majesty the Queen in Right of the Province of B.C.;

K. Brooks, for the Behn respondents;

A. Rana, for the respondents, Chief L. Logan and the Fort Nelson First Nation.

These applications were heard in Chambers at Vancouver, B.C., on March 10, 2014, by Chiasson, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment on April 9, 2014.