Powder Mountain Resorts v. B.C., (2001) 159 B.C.A.C. 14 (CA)

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Lambert and Newbury, JJ.A.
• Neutral Citation: 2001 BCCA 619
• Citation: (2001), 159 B.C.A.C. 14 (CA),2001 BCCA 619,[2001] 11 WWR 488,94 BCLR (3d) 14,159 BCAC 14,[2001] CarswellBC 2225,[2001] BCJ No 2172 (QL),159 B.C.A.C. 14,[2001] B.C.J. No 2172 (QL),(2001), 159 BCAC 14 (CA)
• Date: 24 October 2001
• Court: Court of Appeal (British Columbia)

Powder Mountain Resorts v. B.C. (2001), 159 B.C.A.C. 14 (CA);

    259 W.A.C. 14

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. NO.008

Powder Mountain Resorts Ltd., Powder Mountain Resorts Limited Partnership, Annie Evelyn Hartwick and Dianne Hartwick (plaintiffs/appellants) v. Her Majesty The Queen in Right of the Province of British Columbia and William N. Vander Zalm (defendants/respondents)

(CA026268; 2001 BCCA 619)

Indexed As: Powder Mountain Resorts Ltd. et al. v. British Columbia et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Lambert and Newbury, JJ.A.

October 24, 2001.

Summary:

Hartwick incorporated Powder Mountain Resorts (PMR). PMR submitted a proposal to the Province to develop a ski facility at Powder Mountain. In 1985, the Province advertised for further proposals. No other proposals were submitted. PMR and the Province commenced negotiations. In late 1986, while negotiations were still ongoing, the Hohenwater Group expressed an interest in developing Powder Mountain to Vander Zalm, the newly elected premier. Cabinet rejected PMR's proposal. PMR sued the Province and Vander Zalm for breach of contract, breach of the duty of care, abuse of public office, deceit, negligent misrepresen­tation and unlawful interference with eco­nomic interests and contractual relations.

The British Columbia Supreme Court, in a decision reported in 19 B.C.T.C. 241, dis­missed the plaintiffs' action. The plaintiffs appealed.

The British Columbia Court of Appeal dismissed the appeal.

Building Contracts - Topic 1302

Tender calls - General - Duty of care - Fairness - [See Crown - Topic 1012 ].

Contracts - Topic 1106

Formation of contract - General principles - Duty to negotiate in good faith - [See Crown - Topic 1012 ].

Crown - Topic 1001

Contracts with Crown - General principles - General - What constitutes - The plain­tiffs alleged wrongful deprivation by the Province of their opportunity to pursue a ski resort development - The British Columbia Court of Appeal held that the Prov­ince's invitation for expressions of interest and the plaintiffs' response did not give rise to a contract - There was nothing approaching an invitation to tender, or a tender for work or materials of a certain scope, that could have given rise to a contract - See paragraphs 3 to 4, 10 to 60, 72.

Crown - Topic 1012

Contracts with Crown - General principles - Tenders - Duty of Crown - The plain­tiffs alleged wrongful deprivation by the Prov­ince of their opportunity to pursue a ski resort development - The British Col­umbia Court of Appeal held that the Prov­ince's invitation for expressions of interest and the plaintiffs' response did not give rise to a contract - There was nothing approaching an invitation to tender, or a tender for work or materials of a certain scope, that could have given rise to a contract - In the absence of a contract, no free-standing enforceable duty of fairness arose - See paragraphs 3 to 4, 10 to 60, 72.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The British Columbia Court of Appeal discussed the tort of abuse of public office - See paragraphs 7 to 9.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The plaintiffs alleged wrongful deprivation by the Province of their opportunity to pursue a ski resort development - They alleged, inter alia, that the Premier and other officials abused their public office, making the Province vicari­ously liable - The British Columbia Court of Appeal affirmed the action's dismissal -The court found no targeted malice or unlawful or ultra vires act or a willful disregard of a risk their conduct was un­lawful - Cabinet lawfully rejected the plaintiffs' proposal, and there was no causal link between the officials' actions and the plaintiffs' damages - Nor was there any compensable loss suffered by the plaintiffs; their proposal would have been rejected anyway - See paragraphs 29 to 71.

Cases Noticed:

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [paras. 1, 78].

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [paras. 3, 77].

Three Rivers District Council et al. v. Bank of England, [2000] 3 All E.R. 1; 257 N.R. 1 (H.L.), affing. [2000] 2 W.L.R. 1 (C.A.), affing. [1996] 3 All E.R. 558 (Q.B.), refd to. [paras. 5, 79].

Alford et al. v. Canada (Attorney General) et al., [1997] B.C.T.C. Uned. 123; 31 B.C.L.R.(3d) 228 (S.C.), refd to. [paras. 6, 78].

Northern Territory of Australia v. Mengel (1995), 185 C.L.R. 307 (Aust. H.C.), consd. [para. 7].

Garrett v. Attorney General, [1997] 2 N.Z.L.R. 332 (N.Z.C.A.), consd. [para. 7].

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 63 B.C.A.C. 81; 104 W.A.C. 81; 10 B.C.L.R.(3d) 121 (C.A.), leave to appeal refused (1996), 203 N.R. 390; 78 B.C.A.C. 240; 128 W.A.C. 240 (S.C.C.), refd to. [para. 8].

First National Properties Ltd. et al. v. Highlands (District) et al. (2001), 152 B.C.A.C. 83; 250 W.A.C. 83; 198 D.L.R.(4th) 443 (C.A.), refd to. [para. 8].

Bradford Corp. v. Pickles, [1895] A.C. 587 (H.L.), refd to. [para. 8].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 10].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 64].

Francoeur et al. v. Canada (1994), 78 F.T.R. 109 (T.D.), refd to. [para. 65].

Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (C.A.), refd to. [para. 67].

A & B Sound Ltd. v. Future Shop (1995), 25 C.C.L.T.(2d) 1 (B.C.S.C.), refd to. [para. 90].

No. 1 Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia et al. (2000), 141 B.C.A.C. 1; 231 W.A.C. 1; 80 B.C.L.R.(3d) 61; 1 C.C.L.T.(3d) 1 (C.A.), refd to. [para. 90].

Authors and Works Noticed:

Allott, Phillip, EC Directives and Mis­feasance in Public Office (2000), 59 Camb. L.J. 4, p. 6 [para. 2].

McBride, Jeremy, Damages as a Remedy for Unlawful Administrative Action (1979), 38 Camb. L.J. 323, generally [para. 1].

Counsel:

S.B. Hankinson and P.H. Young, for the appellants;

N.E. Brown and B.A. Carmichael, for the respondents.

This appeal was heard on March 8-9, 2001, at Vancouver, British Columbia, by Finch, C.J.B.C., Lambert and Newbury, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on October 24, 2001, and the following opinions were filed:

Newbury, J.A. (Finch, C.J.B.C., concur­ring) - see paragraphs 1 to 74;

Lambert, J.A. - see paragraphs 75 to 90.