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January 27, 2020
Ian Mulgrew: High court ends decades-old water dispute
West Vancouver entrepreneur Colin Beach’s 30-year-old lawsuit to hold former Premier Bill Vander Zalm accountable has ended not with a bang but a whimper.
The Supreme Court of Canada dismissed his case without so much as an explanation, as is its want.
Beach was shattered — sending passionate emails to his lawyers crying foul about litigation dating back to the days of the negotiations of the first North American Free Trade Agreement, when the bulk export of Canadian freshwater was a red-hot political potato.
In the 1980s, Beach dreamed of exporting water from B.C. to parched California via his firm Rain Coast Water Corp.
But the flamboyant, aptly named businessman was thwarted by Vander Zalm’s now-defunct Social Credit Party administration, which scuttled his plans in 1991 by adopting a moratorium on bulk water exports.
Rain Coast sued.
“I do not believe justice has been served,” Beach lamented.
“The Supreme Court of Canada appears to have abrogated its authority to properly address obvious miscarriage of justice — e.g., how could it fail to overturn the B.C. Court of Appeal with respect to its finding that there was no evidence of misfeasance in relation to the constitutional issues, in particular with respect to the planning and recommendation of the enactment of the Water Protection Act?”
He was incredulous.
“The cabinet submissions in that regard provided incontrovertible evidence of reckless indifference to probable exclusive federal power over water export, and to prospective damages or compensation in the tens of millions of dollars being payable,” he insisted.
There were several national issues bobbing around, Beach maintained: “constitutional authority over the export of Canadian water, access to justice, the proper interpretation of the tort of misfeasance in public office (a.k.a. abuse of office), and whether the government is bound by its own statutes, such as the B.C. Land Act, the B.C. Water Act and the B.C. Crown Proceeding Act.”
“I am concerned that we have no reasons for the SCC decision,” he griped. “In the interest of justice, fairness, due process, etc., aren’t we entitled to receive reasons?”
Short answer: No. The court uses its discretion to hear appeals it deems of public importance and does not usually provide reasons for those it rejects.
Beach was beached, high-and-dry, marooned — the ghosts of long-dead provincial administrations from the last century could finally rest.
It was the end of a quixotic, decades-long legal battle.
After Beach launched his suit, it took him over a decade to obtain more than 2,000 government documents, which caused him in 2009 to amend and re-file the claim, and a year later a judge ruled Rain Coast’s foreshore licence was unlawfully cancelled.
Retired B.C. Supreme Court Justice Peter Leask conducted a trial and issued a stinging 2016 decision lambasting the government.
He found the case “a clear example of giving favourable treatment to one competitor at the expense of others, including the plaintiff, and against the public interest.”
In June, however, the appeal court roasted Leask.
It found he made material factual errors, allowed causes of action that were filed too late, misapplied the tests for liability for misfeasance in public office and the unlawful means tort, and erred by permitting Rain Coast to reopen its case and provide further evidence on damages.
“In my view, Rain Coast’s action must be dismissed in its entirety,” concluded Justice Gail Dickson, dismissing the abuse-of-power claims. “A thorough review of the pleadings, the law and the record reveals no evidence capable of supporting Rain Coast’s allegations of targeted malice or deliberate unlawfulness in the execution of their public duties against the Crown defendants.”
Beach, who once wanted to be a lawyer — he gave up after Osgoode Hall rejected him in 1974 — considered the division’s ruling fatally flawed.
He wanted the country’s highest bench to review it and consider among other errors what he claimed were misleading assertions from government lawyers that the aging pols were too old to testify.
Beach believed at least one bureaucrat’s age was inflated by 20 years.
“There are other issues,” he fumed.
“One of them obviously relates to the 2010 decision by Justice Leask that our foreshore licence was unlawfully cancelled. That decision was not appealed. It is etched in stone. We were improperly denied the opportunity to have damages assessed after Leask found multiple instances of intentional tortious conduct by the Crown and others took place from 1984-1991.”
Beach, who turned 70 in October, wanted the SCC to restore Leask’s verdict or order a new trial.
Instead, the top judges refused to disturb the appeal court verdict and assessed costs against Beach — which he said would probably total tens-of-thousands.
He was dumbfounded: “I believe there has been a gross miscarriage of Justice.”