B.C. Court of Appeal overturns $10M damage ruling against the province

B.C.'s highest court has set aside $10 million in damages that was to be paid by the government after a lower court found that two public officials had acted unlawfully in denying a company's water licence.

The case revolves around an application from Greengen Holdings, a company that had sought to set up a hydroelectric project at Fries Creek near Squamish, B.C., within the territories of the Squamish First Nation.

Greengen's proposal meant it had to seek land tenure and a water licence for the project, which involved going through the then Agriculture and Lands Ministry, as well as the Environment Ministry.

However, the company's applications for both were denied in August 2009, following a call it had with two deputy ministers in November 2008, as well as resolutions against the project by the Squamish First Nation.

Shortly thereafter, the company filed a lawsuit against the province, alleging the civil servants who denied the applications in August 2009 had not done so on the applications' merits.

The suit alleged that conduct was unlawful and harmed Greengen, and the decision to deny the licences had been made unlawfully months before.

The B.C. Supreme Court found in Greengen's favour after a 51-day trial in 2023, awarding the company $10.125 million in damages and finding that the "misfeasance of government representatives was a legal cause of [Greengen's] loss."

However, the Court of Appeal has now set aside those damages, finding that the lower court made errors in saying one of the bureaucrats who denied the water licence did so unlawfully and was aware of it.

"British Columbia has persuaded me that the judge's causation analysis is demonstrably flawed, and had a proper analysis been conducted ... it would have invariably led to dismissal of Greengen's civil claim," wrote the decision from Justice Joyce DeWitt-Van Oosten.

A lawyer for Greengen, Arden Beddoes, said his clients had no further comment on the judgment itself.

He said the next steps for the company would be an appeal to the Supreme Court of Canada, which he said was currently being considered.

In a statement, a spokesperson for the B.C. attorney general said the province was reviewing the appeal court judgment and would not comment further.

The November 2008 call

Greengen first applied to set up a hydroelectric project in 2003 near Fries Creek. In 2006, it secured an agreement with B.C. Hydro for its plan, contingent on obtaining land tenure and a water licence.

However, beginning in 2007, the Squamish First Nation began expressing opposition to Greengen's plan, saying the project would infringe on culturally significant sites.

On Nov. 21, 2008, Greengen was informed by two deputy ministers — who are senior bureaucrats within the B.C. government — that its land and water applications would be denied, with formal letters from decision-makers to follow.

Even as the company tried to delay the letters, the land tenure and water licences were formally denied by two different bureaucrats the following August.

The lower court ruled that those bureaucrats had not made the decision on their own.

But the Court of Appeal found the lower court made an error in judgment, as the civil servant who denied the water licence had no knowledge of the November 2008 deputy ministers' call when she issued the denial letter.

"According to the judge's factual findings, [the civil servant] issued an independent, and importantly, an unfettered decision in the proper exercise of her regulatory role," the judgment reads.