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No.

S169064

Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA


BETWEEN:

BRITISH COLUMBIA HYDRO AND POWER AUTHORITY


PLAINTIFF
AND:

KEN BOON, ARLENE BOON. VERENA HOFMANN, ESTHER PEDERSEN also


known as Rachel Blatt, HELEN KNOTT, YVONNE TUPPER, JANE DOE, JOHN
DOE and all other persons unknown to the Plaintiffoccupying, obstructing, blocking,

physically impeding or delaying access, at or in the vicinity of the area in and around
the south bank of the Peace River upstream (west) of the Moberly River, including
the area in and around the heritage site known as Rocky Mountain Fort
DEFENDANTS

APPLICATION RESPONSE

Application response of: the Defendants Ken Boon, Arlene Boon, Esther Pedersen,
Helen Knott and Yvonne Tupper.
THIS IS A RESPONSE TO the notice of application of the Plaintiff British Columbia

Hydro and Power Authorityfiled January 29,2016.


Part 1: ORDERS CONSENTED TO

The application respondents consent to the granting of none of the orders set out In Part
1 of the notice of application.
Part 2: ORDERS OPPOSED

The application respondents oppose the granting of all of the orders set out In Part 1 of
the notice of application.

Part 3: ORDERS ON WHICH NO POSITION IS TAKEN

The application respondents take no position on the granting of the none of the orders
sought in Part 1 of the notice of application.
Part 4: FACTUAL BASIS
Overview

1. The Piaintiffhas not met any part of the three-part test for an injunction. The
Plaintiff purports to prove interference with its activities through contradictoryand
often unsourced hearsay and double hearsay. The Plaintiffs evidence of harm
and irreparable harm consists of inadmissible opinion evidence and the Plaintiffs
evidence is contradicted by four expert opinions filed by the Defendants. The
four expert opinions filed by the Defendants authoritativelydemonstrate that no
net loss to 80 Hydro or its ratepayers will arise from construction deiay.
The Parties

2. The Plaintiff, 80 Hydro and Power Authority, is a government corporation that


reports to the Minister of Energy and Mines.

3. On January 19,2016, the Piaintiff filed a Notice of Oivil Oiaim alleging that the
defendants have committed trespass and other torts, and seeking injunctive relief
and damages.

4. On January 29,2016, the Plaintiff filed a Notice of Appiication seeking "an


interlocutory injunction. Including enforcement provisions, restraining the
defendants and anyone having notice of the order from obstructing or interfering
with the construction of the Site 0 Clean Energy Projecf until the trial of the
action, on broad terms set out in a draft Order ("Injunction Application").
5. The Plaintiffhas set the InjunctionApplication down for a one day hearing on
February 22,2016.

6. The application respondents Ken 8oon, Arlene 8oon, Yvonne Tupper, Helen
Knott and Esther Pedersen (the "Defendants") are named as defendants in the
Notice of Civil Claim and named as respondents in the Injunction Application.
The remaining defendant, Verena Hofmann, is represented by separate counsel
and Is not participating in this application.

7. On February 15,2016, the Defendants filed a joint Response to Civil Claim.

8. On February 15,2016, the Defendants filed a Notice of Application seeking


various procedural reliefincluding an order aliowing the cross-examination of
Michael Savidant; an order requiring document production of contracts, project
schedules and other documents relied upon by the Plaintiff; and an order striking
hearsay and opinion evidence.
On the material issue of whether the Defendants trespassed or interfered with the
Plaintiffs activities, the Plaintiff relies almost entirelv on hearsav evidence

9. The Plaintiff relies almost entirely on hearsay affidavit evidence on the material
issue of whether the Defendants trespassed or interference with the Plaintiffs
activities. On that issue, the Plaintiffoffers only two affidavits containing hearsay.

10.Affidavit #1 of Patrick Hayes, swom January 29,2016 ("Hayes Affidavif) is given


by one of the Plaintiffs counsel team in support of his client's Injunction
Application. The Hayes Affidavit is tendered primarily to demonstrate that the
Respondents trespassed or interfered with the Applicant's activities.
11.The Hayes Affidavit is entirely unsourced hearsay. Mr. Hayes provides no
evidence as to how the exhibits to his affidavit were compiled, or by whom. In

some cases, the Hayes Affidavit is unsourced double hearsay. One cannot
ascertain, upon reading the Hayes Affidavit, whether Mr. Hayes personally
conducted online investigations leading to the discovery of news media articles
and Facebook posts. Mr. Hayes does not aver that he personally located this
information online, and, if he did so, when he did so. It is reasonable to conclude

that other people located the information online and provided Mr. Hayes with
copies.

12.The Affidavit #1 of Douglas Powell, sworn January 28,2016 ("Powell Affidavit") is


tendered for the purpose of demonstrating that the Defendants trespassed or
interfered with the Plaintiffs activities.

13.The Powell Affidavit is almost entirely hearsay. Mr. Powell relays observations
that he alleges were made by security contractors on the Site C project site. In
paragraphs 7-68 and 72-91 of his affidavit, Mr. Powell relays observations that he
claims were made by other people. Exhibits B-BB comprise recordings, in note
and video form, of those observations said to have been made by other people.

14.With the exception of paragraphs 69-71, Mr. Powell made none of these
observations himself. He has no direct knowledge of the Respondents' or
security contractors' activities. Mr. Powell relies on verbal statements and on
daily shift reports, of events that he himselfhas not witnessed, that have been

provided to him by securitypersonnel. He avers that he refers to these reports


"forthe truth of the facts set out in those documents" [Powell Affidavit, para 8].

15.Video recordings supplement, insome instances, the reports provided by Mr.


Powell's informants. However, the Plaintiff has chosen to put only some of the

video recordings made by security contractors into its evidence on the Injunction
Application, it has withheld others videos taken by securitystafffrom Exhibit B to
the Powell Affidavit [Powell Affidavit, para. 7].
16.Some of the videos within Exhibit B to the Powell Affidavit are inconsistent with or

do not support the claims made by security staff in their dailystaff reports or their
verbal statements to Mr. Powell. In his affidavit, Mr. Powell does not address or
explain these inconsistencies.

17.There is no evidence that the people who allegedly made these observations,
and that wrote daily reports or made video recordings, were unable or
unavailable to provide direct evidence.
On the material issue of whether the Respondents trespassed or interfered with the
Applicant's activities, the Applicant also reiies on unsourced hearsav

18.In addition to the Hayes Affidavit and Powell Affidavit, three additional affidavits
relied on by the Plaintiff in its application contain hearsay on the material issue of
whether the Defendants trespassed or interfered with the Plaintiffs activities. The
hearsay evidence in the three affidavits on this issue is unsourced.
19.The Affidavit #1 of Cameron Penfold, affirmed January 28,2016 (Tenfold

Affidavit") contains unsourced hearsay on this material Issue.

20.Atparagraphs 7-10 of his affidavit, Mr. Penfold uses the defined term "Clearing
Contractor", without ever identilying the person or the company to which he is

referring to. Mr. Penfold gives evidence about actions taken and reported by this
unidentified Clearing Contractor. Among other things, he claims that "two
Individuals"stood in front of a machine on January 4,2016. However, Mr.
Penfold did not witness this alleged event, and he does not identify the source of
his information and belief as to this alleged event.
21.There is no evidence that the unidentified people who provided Mr. Penfold with
the information at paragraphs 7-10 were unable or unavailable to provide direct
evidence. Further, in contrast to paragraphs 7-10, at paragraphs 11-12 of his
Affidavit, Mr. Penfold identifies a source of the latter information.

22.At paragraphs 14>16 of his affidavit, Mr. Penfold offers opinions based upon
hearsay evidence of his "discussions withthe Clearing Contractor". Again, he
never identifies the Clearing Contractor or any actual person whom he allegedly
had these discussions. At paragraph 16, he reaches an opinion based upon
hearsay discussions with unidentified persons.

23.At paragraph 17 of his affidavit, Mr. Penfold avers that:


17
I am informed by the General Manager of the Clearing Contractor,
and verily believe, that as a result of the presence of persons in the Lower
Reservoir Area interfering with the work under the Clearing Contract
(shown in Drawings 1 to 4 of the Clearing Contract),

a) the Clearing Contractor has been unable to conduct clearing or


access development under the Clearing Contract as planned;
b) since January 4,2016, the Clearing Contractor has not received
any revenues for clearing or access development under the
Clearing Contract;

c) the clearing contractor has fourteen pieces of equipment


standing by (including the three pieces of equipment which have
been moved across the MoberiyWinter Bridge), as well as
supervisors, labourers and support staff waiting and available to
perform the work.

24.In so testifying, Mr. Penfold givesevidence based on an unidentified source. He


again does not disclose who the Clearing Contractor is or who its General
Manager is. He does not indicate that he believes it is necessary to keep this
person's name confidential. There is no evidence that the General Manager,
whoever he or she is, was unable or unavailable to provide direct evidence of the
hearsay statements at paragraph 17.
25.The Affidavit #1 of Andrew Watson, affirmed January 29,2016 ("Watson

Affidavit") contains unsourced hearsay on this material issue.

26.Atparagraph 56 of his affidavit, Mr. Watson gives this double hearsay evidence:
56
I am advised by Doug Powell, BC Hydro Safety and Security who
has been to the camp set up by the Defendants on the south bank, that the
location of the camp as plotted by BC Hydro security personnel, using GPS
coordinates, lies directly in the path where the retention dike will be built.

27.At paragraph 56, Mr. Watson gives information from Mr. Poweli, who himself
based the information he gave Mr. Powell on GPS plotting done by others.
Neither Mr. Watson nor Mr. Poweli affixes that GPS work, conducted by

unidentified BC Hydro security personal, to their affidavits. The Defendants are


left unable to assess the accuracy of those GPS coordinates.
28.There is no evidence that Mr. Poweli was unable or unavailable to provide this
information, including the GPS work, as direct evidence.
29.The Affidavit #1 of Siobhan Jackson, affirmed January 29,2016 ("Jackson
Affldavif) contains unsourced hearsay on this material issue.

30.At paragraphs 23 and 24 of her affidavit, Ms. Jackson avers that:


23
... I am advised by Doug Powell, Manager of Safety and Security
for the Project, that the two cabins and other temporary structures erected
by the protestors at the Rocky Mountain Fortsite, including firepits and
holes that have been dug, are located within and around Block E and
directly in the way of the future archeological workat the site. Now
produced and shown to me and marked as Exhibit "G" is a map showing
the location of BlocksA to G (as identified by Golder), overlaid with the
location of the camp area and cabins erected by the protestors that was
prepared by a member of the Project's GIS (mapping) group under my
supervision. The camp structures have been plotted using GIS
coordinates collected by BC Hydro security personal who visited the site
on January 14,2016."

24
I have provided a copyof the overlay map (attached as Exhibit 'G")
to D'Arcy Green (Senior Archeologist, Golder), and he advises me that all
of the camp infrastructure would need to be removed to complete the
archaeological work in Block E.

31 .Atparagraph23, Ms. Jackson gives as "hearsayopinion evidence" the views of


Mr. Poweli. She tenders Exhibit G without identifying the person who prepared it.

Further, Exhibit G is itselfsaid to be based upon GIS work done by unidentified

BC Hydro security personnel, which GISwork is withheld from evidence.The


Defendants are left unable to assess the accuracy of those GPS coordinates.
32.There is no evidence that Mr. Powell was unable or unavailable to provide direct

evidence of his opinion that structures are "directly in the way" of future

archeological work at the site, or was unable to provide Ms. Jackson with the
GSP work underlying Exhibit G.

33. At paragraph 24, Ms. Jackson gives as "hearsay opinion evidence" the opinion
of Mr. Green. Mr. Green's alleged opinion is stated by Ms. Jackson to be based
on Exhibit G, the document prepared by unidentified BC Hydro staff that itself
was based on the undisclosed GIS work of unidentified security personnel.
There is no evidence that Mr. Green was unable or unavailable to provide direct
evidence of his opinion that ail camp infrastructure would need to be removed to
complete archaeological work in Block E.
Facts relevant to the failure to enforce the Land Act

34. The Plaintiffand the Ministry of Forests, Lands and Natural Resource Operations
have failed to take any appropriate steps to pursue statutory remedies. The

Ministry of Forests, Lands and Natural Resource Operations is the ministry


responsible for administering and enforcing the Land Act
35. The Defendants have a right to be present on Crown land.
36. Neither the Plaintiffnor the Ministry of Forests, Lands and Natural Resource

Operations has ever notified the Defendants that they are trespassing under the
Land Act or othenA/ise contravening the Land Act

37.The Ministry of Forests, Lands and Natural Resource Operations does not take
the position that the Defendants' presence at the Rooky Mountain Fortsite is
unauthorized under the Land Act On January 20,2016, in an email to an
employee ofthe Plaintiff, a Ministry employeewould only take the position that
the structures that have been erected at the protest camp have not been
authorized.

38.The structures at the Rocky Mountain Fortsite are one small cabin placed at the
site on December 31,2015, a covered tent area created by a tarp, and another

small cabin placed at the site In mid-January 2016. These two cabins are small,
not fixed to the ground, temporary and very simple.

39.Ministry staff have never communicated to the Defendantstheir position that the
structures are unauthorized under the Land Act The Respondents have not

been told by either the Applicant or the Ministry that Ministry staff determined that
the structures are unauthorized under the Land Act

40.The Plaintiff has not posted any signs that are compliant with the Land Act
limiting access to the Rocky Mountain Fortsite or adjacent Crown lands. Ithas
not posted any signage advising that access to that site was limited.

41.The Plaintiffs security contractors posted a sign at the site on December 31,
2015. However, that sign did not say that peopie could not be present at the
Rocky Mountain Fort site or that access to the site was limited. That sign did not
direct anybody to vacate or stay offthat Crown land. Itdid not say that peopie's
presence on Grown land was unauthorized.
42.The December 31,2015 sign did not direct a sheriff or a pubiicofficerto seize
any improvements, goods, chatteis or other materials. The sign did not state any
time or place of any contravention of the LandAct, did not state any detaiis of
any contravention of the Land Act, and did not othenvise compiy with s. 59(2) the
Land Act.

43. The Defendants have not been notified of any aiieged La/idiAcf violations in a
manner consistent with s. 59(1) of the Land Act They were not served with any
Land Act notice in person or by registered mail.

44. The Ministry of Forests, Lands and Natural Resource Operations has numerous
processes In place for reporting any misuses of Crown land to Natural Resource
Officers with its Compiiance and Enforcement Program, including trespassing
and constructing unauthorized structures on Crown iand. These processes
include electronic reporting forms, the Natural Resource Violation reporting iine,
and other avenues set out in a brochure providing guidance on reporting
vioiations to Natural Resource Officers.

45. Neitherthe Plaintiff nor the Ministry of Forests, Lands and Natural Resource

Operations has made any effort to apply the enforcement provisions ofthe Land
Act The Plaintiff has not asked the Ministry or its enforcement staff to enforce s.
60 against the Defendants, by following any of the Ministr/s processes or
othenvise.

46.The Ministry has made no independent effort itself to enforce the LandAct
against the Defendants, despite being aware ofthe structures at the Rocky
Mountain Fort site [Thome Affidavit, Exhibit A].

47. Further, the Plaintiff has not asked the Minister of Forests, Lands and Natural

Resource Operations to delegate to the Plaintiff the powerto enforcess. 59 and


60, or any otherprovisions ofthe LandAct Under s. 97 ofthe LandAct, the
Minister maydelegate the power to act on the Minister's behalf respecting any of
the minister's powers or functions underthis Act to a "government corporation as
defined in the Financial Administration Act" The Applicant BC Hydro is a

"government corporation" as thatterm is defined in the Financial Administration


Act The Applicant is an agent ofthe govemment under s. 3 ofthe Hydro and

PowerAuthorityAct, RSBC1996, c 212; its powers may be exercised oniy as an


agent of the government The government is the Applicants sole shareholder.
The Applicant Is controlled by the government
The Plaintiff has failed to demonstrate Harm and Irreparable Harm

48. The Plaintiff has failed to demonstrate harm and irreparable harm. The PiaintifPs
evidence of irreparable harm is set out in the Affidavit #1 of Michael Savldant
affirmed on January 28,2016 ("Savident Affidavif).

49. The Savidant Affidavit is unqualified opinion that does not comply with Rule 11,
and is based upon contractual dccuments that have been withheld from
evidence.

50. The Savidant Affidavit is controverted in material respects by four expert


affidavits tendered by the Defendants, namely Affidavit #1 of Robert McCuilough,
affirmed February 9,2016 ("McCuilough Affidavif), Affidavit #1 of Dr. Man/in
Shaffer, affirmed February 10,2016 ("Shaffer Affidavit"), Affidavit #1 of Phillip

Raphais, affirmed February 11,2016 ("Raphals Affidavit") and Affidavit #1 of


Marc Eiiesen, affirmed February 14,2016 ("Eiiesen Affidavit") (collectively, "the
Defendants' Expert Evidence").

51 .Specifically, the SavidantAffidavit estimates the cost of delaying construction for


one year at $420 million [Savident Affidavit, paras. 4-5]. The Defendants' Expert
Evidence contradicts this conclusion. Mr. McCuilough, Dr. Shaffer, Mr. Raphais
and Mr. Eiiesen have the advantage over Mr. Savidant of actually being experts,
and their affidavits comply with Rule 11.

52.The Respondents' Expert Evidence demonstrates that a delay in construction


activities would not result in a net financial cost to the Plaintiff or its ratepayers.

For example, as put by the Shaffer Affidavit:

To demonstrate that a delay in construction and the in-service date of Site C


would result in a net cost to BC Hydro, Mr. Savidant would have had to

compare the cost Impacts of delay that he has identified in his Affidavits with
estimates of the benefit that BC Hydro would realize from the deferral of

expenditures with a revised schedulefor Site C. The Affidavits do not provide


such a comparison. Consequently, the Affidavits do not demonstratethat
there would in fact be a net cost.

53. Further the Defendants' Expert Evidence, and in particular the McCullough
Affidavit, demonstrate that a delay in construction activities would result in a net
financial benefit to the Plaintiff and Its ratepayers.

54. Mr. McCullough concludes that a delay in construction of the Site 0 project, and
corresponding delay of the in-service date of the project, would amount to a net
savings to British Columbia. He estimates the net savings of a one year delay, in
present value terms, would be $267.68 million; he estimates the net savings of a
two year delay at $519.44 million; and he estimates the net savings of a five year
delay at $1,187.47 million. Given the magnitude of these savings, inclusion of
ongoing costs of delay would almost certainly result in the same conclusion
[McCullough Affidavit, Exhibit B, p. 33].
55.Additionally, Dr. Shaffer concludes that the benefit of deferring remaining

expendituresfor four years would be in the order of $0.9 billion to over $1.1
billion. Depending on the additional project costs of such a delay, that suggests
that a four year (or longer) delay in the development of the Site C project could
result in significant savings and net benefits for BC Hydro and its customers
[Shaffer Affidavit, Exhibit D, p. 35; see also Elisen Affidavit, para. 15]

56.As adjudication of irreparable harm and the balance of convenience requires


findings of fact in respect of the net costs and benefits of construction delay, the
Defendants have sought leave to cross-examine Mr. Savidant on his affidavit
[Defendants' Notice of Application for various procedural relief, filed on February
15,2016]. Cross-examination of Mr. Savidant is likely to yield further evidence
that will be of assistance in determining the contested issue of the anticipated
costs and benefits of delays in construction of the Site C project.
The Plaintiffs Omit Kev Documents from their Affidavits

57.The Defendants omit key documents, upon whichthey rely heavily, from their
Affidavits. Noexplanation for these omissions is given by the Plaintiff.
58.The Plaintiff has omitted from its affidavits a complete copy of the "Clearing
Contract" and a complete copy of the "Main Civil Works Contract", including parts
of the Main Civil Works Contract that govern the project schedule and delay and

liquidated damages provisions in the contracts. The Clearing Contract and Main
Civil Works Contract are central to this application; three of the Plaintiffs affiants

rely on them.^ The Plaintiff relies heavily on these contracts in its Notice ofCivil
Claim and Notice of Application, and in its affidavit materials.
1. With respect to the Main Civil WorksContract, twoof the Plaintiffs affiantsreferto or rely upon
the Main Civil Works Contract in their affidavitevidence [Watson Affidavit paras. 26-27 and 60-62;
10

59.The contractual and regulatory scheduling documents are expected to have


significant probative value for the issues of irreparable harm and balance of
convenience. Ifthe contracts do not require what the Plaintiffclaims they require,
or ifthe contracts include terms that contemplate delays of the type complained
of by the Plaintiff, the Plaintiffwill not be able to demonstrate irreparable harm.

60. For example, at paragraph 61 of the Watson Affidavit, Mr. Watson opines and
speculates that changes to construction plans:
''would be considered a significant change to critical path activities set out
in BC Hydro's contract with PRHP and therefore PRHP is likely to claim
additional costs. In particular, this change would cause acceleration of
other work, re-planning logistics and re-allocating equipment, labour and
associated resources in order to meet its contractual obligations related to

critical path activities. BC Hydro expects the cost of a change of this


magnitude would have to be negotiated with PRHP.
61. This speculative evidence at paragraph 61 is based upon the contractual
obligations in the Main Civil Works Contract. Those contractual obligations have
not been disclosed in full or in material part by the Plaintiff on this application.
62. Further, the Plaintiff has withheld both contractual and regulatory evidence about
the project schedule from evidence. It has pleaded reliance on and its

"preliminary construction schedule"from its Environmental Impact Statement; this


preliminary construction schedule was not included in the project's Environmental
Assessment Certificate issued in October 2014 [Watson Affidavit, Exhibit D].
63. Further, after that Certificate was issued, the provincial government made a
decision in December 2014 to revise the project schedule. The Plaintiff submitted

a revised project schedule to provincial regulators in March2015. The revised


construction schedule was submitted to provincial regulators in March 2015 in

Appendix A to the Applicant's Construction Activity Plan - Dam Site Area and
Moberiy River. The Plaintiff has excised Appendix A from the exhibit containing
the Construction Activity Plan and none of its pleadings or affidavits in the
Injunction Application mention the revised project schedule submitted to
provincial regulators [Watson Affidavit, Exhibit J, pp. 276 and 290].
SavidantAffidavit paras. 4-11].-With respect to the Clearing Contract, reliance is found in the
WatsonAffidavit, paras. 25 and 57-59,the SavidantAffidavit paras. 4-11, and the Penfbid
Affidavit, paras. 5 and 17.

11

64.The ConstructionActivity Plan recognizes that the construction schedule may


change or be delayed, based on permitIssuance, weather or other Project
changes.

65. Rather than disclose the project schedules submitted to regulators, the Plaintiff
relies on unsourced, self-serving hearsay for evidence of Its project schedule. At
paragraph 24 of his affidavit, Mr. Watson purports to tender a map at Exhibit S.
He claims that "the schedule of the clearing Is more speclflcaily shown on the

map that Is now produced and shown to me and marked as Exhibit S". Mr.
Watson does not Indicate the source of this map. He remains silent on who

created the map, for what purpose, or how he obtained it. Indeed, Exhibit S is
dated January 29,2016, the same day that Mr. Watson affirmed his affidavit.
These facts create the Impression that the map was created only to bolster Mr.
Watson's claim, otherwise unsupported by the evidence filed by the Plaintiff, that
there exists a specific, fixed "clearing schedule".

66.The evidence Is to the contrary, even on the Incomplete contractual evidence


provided to date by the Plaintiff. The Clearing Contract expressly contemplates
that clearing work may not be completed by March 31,2016, In which case the
Parties will meet to reviewprogress on the work [PenfoldAffidavit, Exhibit A, p.2].
67.To remedy these omissions, the Defendants have sought an order requiring the
Plaintiff to produce three types of documents relevant to Irreparable harm and the
balance of convenience:

a. contracts relied upon by the Plaintiff, which are referenced Inthe Plaintiffs
affidavits and Its Injunction Application, but that It has not disclosed.
Including but not limited to complete copies of the Clearing Contract and
the Main Civil Works Contract;

b. portions of regulatory documents containing project construction


schedules, which portions were excised from the Plaint'iffs exhibits; and
c. documents referred to or relied upon by Andrew Watson In giving his
evidence regarding waste rock storage at paragraph 23 of his Affidavit.
68. The Plaintiffs construction activities will destroy old growth and near-old growth
forests on the south bank of the Peace River, In the Lower Reservoir Area.
The Administration of Justice

69. There are currently three appeals and one judicial review underway Infour
separate legal proceedings challenging the environmental assessment decision

12

and alleging breaches of the duty to consult First Nations regarding the Site C
project.

70.The Peace Vailey Landowners Association has appealed to the British Columbia
Court of Appeal the decision of Justice Seweli of this Court, reported at Peace
Valley Landowner Association v. British Ck)lumbia (Environment), 2015 BCSC
1129. Its appeal is scheduled to be heard on April 4 and 5,2016. The strength of
the Peace Vailey Landowner Association's appeal Is evident from that party's
factum.

71.A judicial reviewof the licences issued has been argued in the British Columbia
Supreme Court by the West Moberly First Nations and Prophet River First
Nation. Arguments concluded on February 2,2016, and reasons are under
reserve. The issue Is whether the Province breached a Consultation Negotiation

Agreement by proceeding to issue licences without negotiating a consultation


agreement with the First Nations.
72. The West Moberly First Nations and Prophet River First Nation have appealed to
the British Columbia Court of Appeal the decision of Justice Seweii of this Court,

reported at Prophet River First Nation v. British Columbia (Environment), 2016


BCSC 1682. This appeal is not yet scheduled.
73.The West Moberly First Nations and Prophet River First Nation have also
appealed a decision of the Federal Court, reported as Prophet River First Nation
V. Canada (Attorney GeneraO, 2015 FC1030, to the Federal Court of Appeal.
Their appeal is not yet scheduled.
Parts: LEGAL BASIS

1. The Plaintiff has not satisfied the three>step common law test for an interlocutory
injunction: RJR-MacDonald Inc v. Canada (Attomey General), [1994] 1 SCR
311.

The Applicant has not tendered anv non-hearsav evidence of a serious issue

2. The first question to be addressed in the test for an interlocutory injunction Is


whether there is a serious issue to be tried: RJR - MacDonald Inc v. Canada

(Attomey General), [1994] 1 SCR 311.

3. The Plaintiff pleads that there is a serious issue of whether the Defendants have
committed torts and other legai wrongs by interfering with the Plaintiffs rightto
clear trees in the "Lower Reservoir Area" of the Site C project.
13

4. However, the Plaintiffhas tendered no direct evidence of the Defendants' aiieged


behaviour or activities at the Rocky Mountain Fort site. The onlyevidence that
the Plaintiff has provided of the Defendants' activities is hearsay evidence,
including unsourced and double hearsay.
5. In the case of the Powell Affidavit, Mr. Powell's hearsay evidence is partial,
unreliable and inaccurate in material respects. His evidence describes shift

reports or verbal statements given to him by the Plaintiffs contractors, which


reports and statements are often inconsistentwith or unsupported by video
footage taken by those contractors. Further, that video footage is incomplete and
selective. His hearsay evidence is also unnecessary, as the Plaintiffs contractors
who made direct obsen/ations are surely able to give direct evidence.
The Court should aoolv Litchfield and decline to relv on hearsav evidence on the issue
of whether the Defendants have trespassed or interfered with the Plaintiffs activities

6. The Court should disregard hearsay evidence on the material issue of whether
the Defendants have trespassed or interfered with the Plaintiffs activities.

7. While litigants are permitted by the Rules of Courtto relyon hearsay evidence on
an interlocutory application, this rule"is more nuanced on injunction
applications": P.O. v. British Columbia^ 2010 BOSC 290.
8. The Defendants rely on the Court's decisions in Litchfield v. Darwin (1997), 29
BCLR (3d) 203 (BCSC) and in Le SoieiiRestaurant inc. et ai v. NomanI et ai,
2005 BCSC 1804. in those decisions, the Court refused to grant interlocutory

injunctions due to concerns about the applicants' heavy reliance on hearsay


affidavit evidence.

9. In Litchfieid, De Weerdt J. dismissed an application for an interlocutory injunction.


He did so for the reason that it was sought only on hearsay, and the applicant did
not show that evidence from original sources was unavailable. He held that, while
the Rules of Court permit litigants to rely upon hearsay on an interlocutory
application for an injunction, a judge hearing such an application must still
exercise his or her discretion as to whether Injunctive relief should be granted on
the basis of hearsay. He held that it should not: Litchfield v. Darwin (1997), 29
BCLR (3d) 203 (BCSC) at paras. 4-6.
10.The Litchfieid 6ec\s\on was applied and elaborated on in Le Soieii Restaurant
inc. et ai v. Nomani et ai, 2005 BCSC 1804. Justice Baliance refused to grant an
14

interlocutory injunction where "substantiaiiy all" of the applicant's evidence on a


material issue was hearsay or double hearsay. For the Court, she held that:
o It is always a matter of Judicial discretion as to whether an interlocutory
order ought to be admitted on the basis of hearsay evidence (para 47);
o Double hearsay should never be admitted (para 47);
o Affidavits on information and belief may not be used in all circumstances
(para 47);

o Utchfield does not stand for the proposition that the court ought to decline
to grant an interlocutory injunction only in circumstances where all of the
evidence presented is hearsay. The vital point identified by the court
in Utch^eld was that the pertinent material and facts in issue did not go
beyond statements based on information and belief (para 49);

o It is especially problematic to rely only on hearsay so when terms of the


proposed injunction are expansive, such the plaintiffs would, in effect, be
given substantially ail of the benefits of a judgment at trial as against the
defendants. Such a far-reaching outcome should alert the court to
exercise extreme caution in admitting hearsay on pivotal issues especially
where there is no compelling reason given for the omission of the
evidence from the original sources (para 52);

o Injunctive relief is drastic and extraordinary, such that the court ought to
receive direct evidence on essential facts in dispute on interlocutory
applications of this kind wherever it is reasonably practicable and
obtainable and in the absence of urgency". To apply a less rigid
evidentiarythreshold runs the danger of compromising a meaningful
consideration of the test for granting an interlocutory injunction (para 55).
11 .The Defendants submit that the Court should follow Utchfield and Soleil and

decline to grant the requested injunction. Almost the entirety of the evidence on
the material issue of whether the Defendants have trespassed or interfered with
the Plaintiffs activities is hearsay, including unsourced and double hearsay.

12.The hearsay evidence dealing withthe Defendants' activities is provided in three


afRdavits.

13. First, the Penfold Affidavitcontains unsourced hearsay on this Issue, at

paragraphs 7-10 and 14-17, that is contrary to Rule 22-2(13) and is inadmissible.
This Court should strike or disregard those portions of the Penfold Affidavit.
15

14. Further, both the Powell Affidavit and Hayes Affidavit consist of hearsay evidence
on the material issue of whether the Defendants have trespassed or interfered
with the Plaintiffs activities.

15.With one exception, Mr. Powell does not offer any directevidence on the material
Issue of whether actions constituting trespass or interference have occurred.
Almostthe entirety of his evidence on this material Issue is hearsay.

16.The exception is that Mr. Powell offers direct evidence in paragraphs 69-71 of his
Affidavit. Mr. Powell's three paragraphs of direct evidence is very limited and is
manifestly insufficient to obtain the injunctive relief sought.
17.The hearsay evidence comprising the remainder of the Powell Affidavit neither
bears the hallmarks of reliability (being contentious and adversarial) or necessity
(there being no evidence that persons who made direct observations are not
availableto give evidence), it is not even plausibleto suggest that it would be
inconvenient for the Plaintiffs contractors and employees who allegedly made
the observations to make their own affidavits.

18.In particular, in Exhibit B, Mr. Powell has affixed only some of the video footage
taken by the Plaintiffs contractors. He has excluded other videofootage from
Exhibit B. The video footage is selective and incomplete.

19.Further, some of the video footage in Exhibit B is inconsistent with or does not

supportthe contents ofthe daily shift reports exhibited to the Powell Affidavit.
Mr. Powell's description of what happens in the videos is (a) sworn on
information and beliefand (b) is inaccurate in material respects. Mr. Powell
cannot be effectively cross-examined about these inconsistencies, however, as
he did not make any of the observations documented in the dailyshift reports.
20.The Plaintiff has not provided any evidence suggesting that its staff and
contractors who allegedly observed the Defendants, according to Mr. Powell, are
unable or unavailable to give any direct evidence.

21.This Court should disregard paragraphs 7-68 and 72-91, and Exhibits B-BB, of
the Powell Affidavit.

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22.Mr. Hayes also does not offer any directevidenceon the material Issue whether
actions constituting trespass or Interference have occurred. All of his evidence on
this Issue Is hearsay.

23. Further, It appears that Mr. Hayes* evidence Is, In whole or In part, double
hearsay. Mr. Hayes does not appear to have personally gathered the evidence
affixed as exhibits to his affidavit. He does not aver that he did so. He does not

aver that he personally located the news articles online. He does not aver that he
personally Investigated the social media webpages or that he personally
accessed the Defendants' Facebook accounts. He remains silent, In his affidavit,

on which person or persons located, obtained and collected the vast majority of
exhibits to his affidavit.

24.Mr. Hayes is legal counsel to the Plaintiff. Mr. Hayes is presumed to be familiar
with the applicable lawgoverning this application. Including this Court's decisions
in Utchfield and Soleil. The Defendants respectfully submit that It would be

inappropriateto rely on an affidavit of counsel, which affidavit comprises


evidence that is entirely hearsay and apparentlydouble hearsay, on the material
issue of whether actions constituting trespass or Interference have occurred.

25.This Courtshould strike the Hayes Affidavit or disregard It In Itsentirety.

26.Finally, the remaining evidence on the material Issue of whether actions


constituting trespass or Interference have occurred Is ali unsourced hearsay.
27.The Penfold Affidavit gives hearsay evidence on this material Issue at

paragraphs 7-10 and 14-17. He does notdisclose the names ofthe persons with
whom he had discussions, or the names of the Clearing Contractor or its General
Manager who were the source of his Information and believe
28. The Watson Affidavit gives double hearsay evidence on this material Issue at

paragraph 56. Mr. Watson's information comes Mr. Powell, which Is Itself based
on untendered information gathered by unidentified BC Hydro security personnel.
This has the effect of shielding GPS work conducted by these unidentified

personnel. The Respondents are leftunable to assess the accuracy of those


GPS coordinates. This prejudicially denies the Defendants of a defence to the
hearsay allegation that they are interfering with the Plainttffs work due to their
alleged proximity to equipment.

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29. Likewise, the Jackson Affidavit gives unscurced hearsay on this material issue at

paragraphs 23-24. As with the Watson Affidavit, Ms. Jackson's information also
comes from Mr. Powell as well as from Exhibit G - which was created by

unidentified BC Hydro staff using untendered GIS coordinates collected by


unidentified BC Hydro security personnel. Further, she gives as "hearsay
opinion" evidence the opinion of Mr. Green, which opinion Is also based on
Exhibit G and thus on the undisclosed GIS work of unidentified security

personnel. Again, this prejudicially denies the Defendantsof the ability to assess
the accuracy of those GPS coordinates and to defend themselves against the
hearsay allegation that they are interfering with the Plaintiffs work.
The Plaintiff has provided no direct evidence of anv tortious or illegal behaviour

30.The Plaintiff has not provided any direct evidence of any tortious behaviour,
amounting to nuisance, intimidation, inducement of breach of contract,
interference with economic relations by unlawful means or conspiracy.
31. Indeed, the Plaintiffhas not provided any hearsay evidence of any tortious
behaviour. The hearsay evidence - which, following Utchfield and So/e//, should
not be relied on in any event - merely indicates that the Respondents are

present in the area. The hearsay evidence does not show that the Defendants
have behaved in an obstructionist, intimidating or interfering manner whatsoever.

32. In no way does the Defendants' presence at the Rocky Mountain Fort remotely
equate to intimidation or mischiefunder ss. 423 or 430 of the Criminal Code. In
no way does the Defendants' presence at the Rocky Mountain Fort site amount
to a breach of section 13 of the Heritage Conservation Act

33.The Defendants have no knowledge of the existence or content of the Plaintifrs


contracts beyond selective extracts of the Clearing Contract and the Main Civil
Works Contract affixed to the Plaintiffs affidavits in this application.
34.The Defendants' mere presence at the Rocky Mountain Fort site is not a violation
of section 60 of the Land Act. The structures are two small, non-permanent,

transitory cabins and a tented area created by a tarp. There is no evidence of


"flouting" the law.

35. On January 20,2016, the Plaintiff asked the Ministry of Forests, Land and
Natural Resources Operations to opine that that the "occupation"of the Rocky
Mountain Fort site was unauthorized under the Land Act. However, the Ministry
18

declined to take the position that the "occupation" ofthe Rocky Mountain Fort site
was unauthorized under the Land Act Instead, the Ministry would only take the
position that the structures at that site were unauthorized.
The Plaintiff, a oovemment corporation, should not be Granted inlunctive relief when the
government has avoided pursuing statutory remedies under the Land Act

36. The Defendants submit that the Piaintiff, as a govemment corporation, should
first pursue its statutory remedies under the Land Act, before seeking to enlist
this Court in an extraordinary exercise of equitable jurisdiction.

37. Reiying on Ontario case law, the Plaintiff argues that it is entitled to an injunction
as of right to enjoin an unlawful act.
38. However, in British Columbia, this Court has rejected that argument in the

preciselythe same context as exists here, namely alleged trespasses to Crown


land under section 60 of the Land Act Attorney General v. Sager, 2004 BCSC
720 at para. 13.

39. The Land Act sets out the rights and responsibilities of the Crown In the
administration of public land. The procedures in s. 59 are intended to ensure that
adequate notice is given to the public of limits placed by the Crown on access to
such lands. The remedies and procedures provided in therefore intended to

provide due process for those accused of trespass on Crown lands - Sager, at
para. 33.

40.The equitable jurisdiction of this Court ought not to be invoked to restrictthe


rights of both the Defendants and ail members of the publicto enter on Crown
land through the use of a Jane/John Doe injunction, where the govemment has
chosen not to utilizethe offence provisions of the Land Act Sager, para 16.
41.The government's resort to the courts for injunctive relief ought to be a final step
and not merely a convenient alternative to the application of criminalor other
available sanctions: Sager, paras. 21-22; British Columbia (Attomey General) v.
Perry Ridge Water Users Assn., [1997] BCJ No. 2348 (SC) (QL); Alliford Bay
Logging (Nanaimo) Ltd v. Mychajlowycz, 2001 BCSC 636.
42. While the Plaintiffis not the Attomey General, it is a govemment corporation. By
law, it may exercise powers only on behalf of the government. By law, it is

19

controlled bythe government; FinancialAdministration Act^ definition of


"govemment corporation".

43.The Ministry of Forests, Lands and Natural Resource Operations has apparently
elected not to enforce or assign the power to enforce the LandAct at the Rocky
Mountain Fort site, despite meeting with the PlaintifTs representatives.

44. The Plaintiff may exercise delegated statutory powers under the Land Act,
including powers regarding trespass under ss. 59 and 60 of the Land Act,
because it is a govemment corporation referred to in s.97. However, there is no
indication that the Plaintiff has sought these powers from the Ministry. It also
prefers to turn to this Courtfor an extraordinaryand broad exercise of equitable
relief, affecting all members of the public, rather than exercising statutory powers.
45. In these circumstances, to issue a Jane Doe/John Doe injunction and bypass the

provisionsof the Land Acfwould deprive those individuals, who might othenArise
be accused of offences under the Act, of due process. Granting of interlocutory

Injunction reliefis not just and equitable In allthe circumstances of the case Sager, para. 36.
The status quo will not cause the Plaintiff irreparable harm in the form of
increased costs

46.The second question to address under the RJR - MacDonaid test is whether
irreparable harm will result ifthe injunction sought is not granted. On this
question, the Court should conclude that the status quo will not cause the Plaintiff
irreparable harm In the form of increased costs.

47. Relying on Ontario case law, the Plaintiff argues that it need not demonstrate any
irreparable harm to be entitled to an injunction, it argues that it is entitled to an
injunction as of right to enjoin an uniawful act.
48. In British Columbia, this Court has rejected that argument in the same context of
alleged trespasses to Crown land under section 60 of the Land Act Sager, para.
13.

49. The Defendants submit that Ifthe Court decides to exercise its equitable

jurisdiction and issue an interlocutory injunction, it may only do so after applying


the usual three-step test.

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SO.The Defendant has filed the Affidavits of Mr. McCullough, Dr. Shaffer, Mr.

Raphals and Mr. Eliesen, all ofwhom are qualified to give opinion evidence of
the net cost of delay. Theiropinions concur that construction delays will not
result in net costs for BC Hydro or its ratepayers:

McCuliough
Affidavit, Exhibit B,
Ex. p.33

A delay in construction of Site C, amounting to a


delay of the in-service date of Site C, would
amount to a net savings to British Columbia, not
a net cost The net savings of a one year delay,
in present value terms, is $267.68 million; for a
two year delay it is $519.44 million; for a five
year delay, the net savings is $1,187.47 million.
... given the magnitude of the net savings by
delaying, inclusion of [ongoing]costs would
almost certainly result Inthe same conclusion.

Shaffer Affidavit,

The benefit of deferring remaining expenditures


four years would be in the order of $0.9 to over
$1.1 billion. Depending on the additional project
costs of such delay, that suggests a four year (or
longer) delay in the development of Site 0,
could result in significant savings and net
benefits for 80 Hydro and its customers.

Exhibit D. Ex. p.35

Raphals Affidavit

The additional costs of delay identified in the


Savidant Affidavit, when combined with the very
substantial positive ratepayer impacts that delay
would produce priorto commissioning and in the
very first decades thereafter, are not significant.
Delaying commissioning will tend to reduce the
losses that result from selling Site C surplus
power in the expert market at prices far below its
productioncost. This benefit tends to reduce
the increased capital costs resulting from the
delay.

Eliesen Affidavit,

Michael Savidant's alleged construction cost


delays are effectively iilusionary because he
relies on an unsubstantiated need for the project
based on long term forecasts that have not been
properlyvetted. Delay of the project is likely to
save British Columbia ratepayers more than the
alleged estimated $420 million costs Itemized by
Michael Savidant. This situation is Increasingly
obvious given current developments in load

para.15

demand.

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51.In contrast, the SavidantAffidavit makes no effort to comply with Rule 11.
Moreover, his curriculum vitae, released In other legal proceedings, casts doubt
on those qualifications. The Savidant Affidavit is inadmissible opinion evidence
and should be struck.

52. In contrast to the McCuliough Affidavit, the Shaffer Affidavit, the Raphals Affidavit
and the Ellesen Affidavit, the Savidant Affidavit estimates the cost of delaying

constructionfor one year at $420 million. At page 2 of the Report attached as


Exhibit "B" to the McCuliough Affidavit (the "McCuliough Report"), Mr.
McCuliough assesses that "Mr. Savldant's affidavit contains no description of his
updated calculations, displays a very limited understanding of project cost
estimation, and contains a number of errors of fact."

53.The McCuliough Report identifies the following specific difficulties with Mr.
Savldant's estimate, among others:

a. At paragraph 5 of his Affidavit, Mr. SavidantIdentifies a construction cost


increase of $60 million over his August 12,2015 estimate of $100 million;
yet at paragraph 6, Mr. Savidant Identifies an increase of $50 million over
that August 12,2015 estimate. Mr. Savidant has provided no details that
would account for this discrepancy;

b. Mr. Savidant appears to use an assumption of 18% interest rate, which is


not a credible assumption in today's financial markets and contradicts the
rate he appears to use for other calculations;
c. Mr. Savidant Identifies payments under the Main Civil Works contract as a
basis for Increased costs even though the contractor is not due to mobilize
until early February of 2016. The McCuliough Report Indicates that non
existent progress payments should not attract interest charges; and
d. Mr. Savidant identifies an unsigned contract (the Turbine Generator

contract) as a reason for Increased direct costs at paragraph 6(a)(iv). The


McCuliough Report describes these alleged costs as "speculative at best"
and questions whether the Main Civil Works and Turbine Generator
contracts were mistakenly listed as causes for increases costs.
54.The Plaintiff has not disclosed evidence, such as the revised project schedule

that itsubmitted to regulators in March 2015 or the terms of its contracts that
relate to projectscheduling, relevant to meeting its burden of proofon the issue
of irreparable harm. The Savidant Affidavit appears to rely on these documents.
22

55. On the whole of the evidence, the continuance of the status quo would not cause
the Plaintiff Irreparable harm.
The balance of convenience favours denial of the requested injunction

56.The third question under the RJR - MacDonaldtest is whether the balance of
convenience favours the granting of an Interlocutory Injunction. This involves a
consideration not just of the parties' interests, but of various public Interests.

57.In light of the evidence that delaying construction would create a net financial
benefit for British Columbian ratepayers, the public interest weighs against the
granting of an injunction.

58. Other public Interests would also be strongly served by refusing the injunction.
59.The Plaintiffs construction activities will destroy old growth and near-old growth
forests on the south bank of the Peace River, in the Lower Reservoir Area. This

destruction cannot be quantified monetarily and would be an irreparable loss to


the Respondents and to the public.

60. One judicial reviewand three appeals are currently underway. The hearing of
the judicial review concluded on February 2,2016, and reasons are in reserve.
One of the appeals is set for April 4 and 5,2016. The other two appeals are
expected to be heard In the fall.

61.The strength of these appeals Is substantial. In particular, the strength of the


Peace Valley Landowner Association'sappeal is clearly evident from that party's
compelling factum: LaxKv/alaams Indian Band v. British Columbia (Minister of
Forests), 2004 BOCA 306 at paras. 16-20.
62. The contents of the Peace Valley Landowner Association appeal dovetails with
the expert opinion evidence filed by the Defendants on this application. In their
appeal, the Association argues that Site C should have been referred to the BC
Utilities Commission to assess the need for and cost of the project. Mr. Eliesen,
Mr. Raphals, Mr. Shaffer and Mr. McCullough concur with that suggestion.

63. Further, the West Moberly First Nations and Prophet River First Nation, whose
appeals to the BC Court of Appeal and Federal Court of Appeal are ongoing,
would suffer irreparable harm from the Applicant's tree clearing activities which
would undermine their ability to exercise their constitutionally-protected traditional
23

rights. The harm to the West Moberly First Nations' and Prophet River First
Nation's rights should be assumed to be irreparable: Yahey v. British Columbia,
2015 BCSC 1302 at paras. 41-45.

64.The Plaintiff has shown itself to be piling shortcut upon shortcut with this project
Itshortcut due dilligence by bypassing the BC Utilities Commission, it shortcut
the First Nations by failing to consult, it shortcut the administration of justice by
failing to wait for the results on appeal before trammelling over First Nations
territory, it shortcut the Land Act requirements for notice on Grown land, it
shortcut the Rule 11 requirements for expert evidence and it shortcut the
Utchfield limits on hearsay evidence for interlocutory injunctions. Especially
here, where the Defendants have demonstrated that the status quo is of net
benefit to BO Hydro and Its ratepayers, an injunction should be denied.
65. These considerations tip the balance of convenience against issuance of an
interlocutory injunction.
Part 6: MATERIAL TO BE RELIED ON

1. Plaintiffs Notice of Civil Claim filed January 19,2016;

2. Plaintiffs Notice of Application for an injunction filed January 29,2016;


3. Plaintiffs affidavits in support of its application, including:
a.
b.
c.
d.
e.
f.

Plaintiffs Affidavit#1
Plaintiffs Affidavit#1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1
Plaintiffs Affidavit #1

of Patrick Hayes, swom January 29,2016;


of Cameron Penfold, affirmed January 28,2016;
of Andrew Watson, affirmed January 29,2016;
of Douglas Powell, sworn January 28,2016;
of Siobhan Jackson, affirmed January 29,2016;
of Michael Savidant, affirmed January 28,2016;

g. Plaintiffs Affidavit #1 of Edie Thome, affirmed January 20,2016;


4.
5.
6.
7.
8.
9.

Affidavit#! of Robert McCullough, affirmed February 9, 2016;


Affidavit#! of Dr. Marvin Shaffer, affirmed February 10,2016;
Affidavit#! of Phillip Raphals, affirmed February 11,2016;
Affidavit#! of Marc Eliesen, affirmed February 14,2016;
Affidavit #1 of Shauna Stewart, affirmed February 15,2016; and
Such further material as this Court may accept.

24

The application respondents estimate that the application will take three days.

The application respondents have filed in this proceeding a document that contains the
application respondents' address for service.

Date: February 15,2016


Counsel for the Re

Jason GratI
ndents / Defendants

GratI & Company


Barristers and Solicitors

601-510 West Hastings St.


Vancouver, BC V6B 1L8
604-694-1919 (office)
604-608-1919 (fax)

25