BY BILL PHILLIPS
BCR Properties was under no obligation to disclose that a piece of property it was about to lease to a local business had a landfill on it.
That’s the assertion of the Crown agency’s lawyer Tom Moran, who was arguing against amending a civil suit, brought forward by Brink Forest Products, in a Prince George courtroom Wednesday.
“BCR Properties doesn’t make representation, ever, when it disposes property,” he said, adding the lease-to-purchase agreement was for the property “as is” and that BCR Properties urged Brink Forest Products owner, John Brink, to do his own “due diligence” on the site.
The issue goes back to 2005 when Brink Forest Products leased 100 acres in the BCR Industrial site with an option to purchase after three years. Brink planned to build a sawmill and consolidate its River Road finger-joint plant on the site. In 2008, with the sawmill half-built but waiting for subdivision approval so Brink could purchase the land, a 22-acre landfill, in places 30 feet deep, was discovered on the site.
It had been covered over, contoured, and replanted. Brink and BCR Properties seem to agree on the fact that the presence of the landfill was not disclosed. Brink is alleging civil fraud, in a case that goes back to 2013. Five weeks had been set aside for a trial earlier this year, however Brink changed lawyers in November and his new lawyer, Jon Duncan, amended the original claim to include civil fraud. That prompted Wednesday’s hearing, which will determine whether the amendments should be allowed.
“Failure to disclose a latent defect that renders the property unusable is an act of fraudulent misrepresentation,” Duncan argued before B.C. Supreme Court Justice Marguerite Church.
Duncan also stated that the landfill, located in the middle of the 100-acre parcel of land, contained toxic and non-biodegradable material.
“BCR Properties was aware of the landfill and that Brink couldn’t build on it (at the time the lease was signed),” Duncan said.
He said Brink spent $10 million pouring the foundation for the new mill and erecting the superstructure.
Moran said it was BCR Properties’ practice not to make any representations as to the conditions of property it sells.
The two parties have been before the courts several times over the past few years. In April 2009, Brink’s option to purchase the property had expired, even though he continued to lease the land. He alleged that BCR Properties had breached the option to purchase because it had failed to get the property appraised, which would have determined a purchase price.
An appraiser had looked at the property but was stymied because he was required to use environmental reports from both Brink and BCR Properties which Moran argued were “diametrically opposed,” with BCR’s environmental report suggesting there was no need to remove the landfill and Brink’s determining there was, at a cost of about $14.5 million.
Brink then refused a request from BCR for another appraiser and another environmental consultant to examine the property.
In 2011, BCR Properties petitioned the courts for a ruling, arguing the terms of the option to purchase allowed the appraiser to retain an environmental consultant and perform a site investigation, and that Brink was required to pay the costs of the environmental consultant if he purchased the property.
Justice Laura Gerow, given that Brink has refused another appraiser, ruled in favour of BCR Properties.
Moran argued Wednesday that Brink is trying now to re-litigate that case. There is a limitation period of six years to bring such a matter back to court which Moran argued has expired. However, part of Duncan’s amendments to the civil case that was that limitation period should start in 2012 when Brink obtained information from the city of Prince George and the Ministry of Environment, through Freedom of Information requests, regarding the delay in subdividing the land.
“John Brink (in an affidavit) says facts pertinent to this case did not come into his possession until 2012,” said Duncan. “(The year) 2012 is the day of discovery.”
Duncan also pointed out that information obtained in 2012 came from third parties, not BCR Properties.
“Yes there was document production,” countered Moran. “But it didn’t bring forward evidence (to support Brink’s claim) … The limitation period has long expired.”
Moran pointed out that the matter has been before the courts long enough.
“At some point this has to end,” he said. “Our client has had to defend this, in multiple forms, for eight years. This is the third amendment in these proceedings.”
Justice Church said the two sides “have given her lots to consider” and she will issue a written ruling, but did not say when that would be. No date has been set for the trial either.
