A lawsuit alleging wrongful exercise of lawful authority by former B.C. Liberal environment minister Mary Polak and the provincial government may proceed, a B.C. Supreme Court judge has ruled.
The case involves the contentious cancellation of a permit allowing a Cobble Hill Holdings quarry near Shawnigan Lake to accept contaminated materials. However, the quarry quarrel is part of the glue that binds the NDP-Green alliance together.
The project started in 2011 and involved filling a disused quarry with remediated soil rather than shipping it to the Lower Mainland. The company sought ministry approval and won it in December 2013 with provision of a $220,000 security.
Local government and residents, though – among them the Cowichan Valley Regional District and the Shawnigan Residents Association – launched an Environmental Appeal Board appeal and applied for a court injunction. Both were unsuccessful.
Ultimately, the permit was cancelled in 2017 after numerous ministry allegations of non-compliance, the court said in its Feb. 6 ruling.
The minister said Cobble Hill Holdings’ failure to provide an updated security was the reason for cancellation.
But the company didn’t seek a judicial review of the minister’s decision to cancel the permit. Instead, it decided to abandon the project and filed suit, alleging defendants’ negligence and misfeasance in public office.
While the court found the company had not sufficiently argued either point, Justice Jennifer Power allowed for amended pleadings on misfeasance in office while striking the negligence claim.
What that means, Power said, is that the company “must prove both that Minister Polak engaged in deliberate and unlawful conduct in her capacity as Minister of the Environment, and that she was aware that her conduct was unlawful and that it was likely to harm the plaintiff.”
Power said Cobble Hill Holdings asserts Polak cancelled the permit for given reasons the company does not accept and which it says are unsupported by the evidence.
The defendants argued Cobble Hill Holdings failed to show a deliberate unlawful act by them. They said the claim should have been dismissed as an abuse of process.
The Ministry of Environment would not comment on the case, saying it remains before the courts, and Polak was in transit to Victoria and could not be contacted.
Cobble Hill lawyer Lorenzo G. Oss-Cech declined to discuss the decision.
Among those who opposed the project is now-Green MLA Sonia Fursteanau. It was her opposition to the quarry near her community’s drinking supply that led her to seek public office.
And, it was her distrust of the BC Liberals’ behaviour in the case that spurred her to push for Green support of the NDP, resulting in the 2017 Confidence and Supply Agreement by which the Greens support Premier John Horgan’s government.