Court denies province's appeal to reject Greengen lawsuit

The B.C. Court of Appeal recently dismissed an appeal filed by the provincial government’s Ministry of Forests, Lands and Natural Resource Operations; regional water manager; and the Ministry of Environment against Greengen Holdings Ltd., thus setting the stage for a trial this spring.

This dispute started back in August 2009 after Greengen was denied a permit by the provincial government for a hydropower project in Fries Creek, a stream that leads into the Squamish River near Judd Slough. That decision by the province was partially due to a land use agreement it had with the Sḵwx̱wú7mesh Úxwumixw (Squamish Nation).

In 2016, Greengen filed a civil claim against the province and against the Nation.

The claim against the Nation has since been dismissed, but the case against the province has been ongoing ever since.

In 2017, an initial judge stayed Greengen’s civil claim, which Greengen subsequently appealed. The B.C. Court of Appeal sided with Greengen in 2018 and ruled that the company had pleaded a valid civil cause of action for misfeasance in public office, which means the wrongful exercise of authority.

From then onward, the province has attempted to have the claim dismissed a few times, but has failed each time.

In 2019, the province demanded Greengen provide the individual public officers that allegedly misused their authority. Greengen provided three names initially and later added a fourth who “knew or were recklessly indifferent to the possibility” that the decisions made on its project were invalid, unlawful and beyond the scope of their power.

Later in 2019, the province applied to dismiss Greengen’s pleading but was denied. Twice in 2021, the province applied for dismissal under two separate rules, both of which were denied.

Most recently, the province attempted to have Greengen’s pleadings dismissed based on the argument that the company had not named individual officials at fault. However, Justice John J.L. Hunter ruled in his decision published on Jan. 18, 2023,  that individuals must only be named as defendants when a resolution is sought against them personally, which was not the case in this claim.

“While Greengen would be required to claim against the particular public officials as defendants if they sought a remedy against them, it is not a requirement that a plaintiff do so when the misfeasance claim is made directly against public authorities,” reads the written summary judgment.

“In such a claim, the plaintiff must identify the relevant public officials, to the extent that their identity is known, in order to ensure that the defendant knows the case it has to meet, and to ensure that the public officials whose conduct is questioned can be defended by the public authority for which they worked.”

The judgment concludes that Greengen sufficiently did so through its claim, although the company was asked to change “ministry” to “minister” and directly name the public authority figures from here onward to avoid confusion.

The trial is now scheduled to proceed for 60 days starting in April.

“It is in the interests of justice that the trial proceed without further interlocutory applications seeking to derail the proceedings,” the decision states.