BY BILL PHILLIPS
A Supreme Court Justice has ruled in favour of J.A. Brink Investments Inc. in its ongoing battle with BCR Properties.
Supreme Court Justice Church ruled Wednesday that Brink can amend a civil claim, originally filed in 2013. The case in question involves a landfill located within 100 metres of the Fraser River and a major city water intake. In 2005, Brink Forest Products signed a lease-to-purchase agreement for the 100-acre site with BCR Properties. Brink had planned to build a new two-line sawmill on the site, which would have employed 200 people. Construction came to a halt when the Ministry of Environment highlighted environmental concerns with the property. A subsequent 2009 environmental report determined the landfill is 22 acres, 30 feet deep in places, and contains “deleterious” materials, including arsenic, mercury, PCBs, and PCPs.
Brink launched a civil suit against BCR Properties in 2013.
Supreme Court Justice Church ruled Wednesday that Brink can add claims of fraudulent misrepresentation; that each party had a “duty of honest performance or good faith performance;” that BCR Properties had a duty to disclose the presence of the landfill, which created an unacceptable risk to human health and the environment; and that it failed to comply with its obligations under the Waste Management Act or the Environmental Management Act, to its 2013 civil suit.
“There are many individuals, like our local MLAs, who were briefed about these issues from the beginning, however chose to stand in silence,” said John Brink, owner of Brink Group of Companies, of his 12-year battle with BCR Properties. “Now a moment has arrived where BCR must be held accountable.”
In its civil claim Brink alleges BCR Properties indicated, prior to entering into the lease, that the property was “clean and did not require any further environmental remediation.” Brink claims BCR Properties knew of the landfill, failed to disclose it, and that Brink has subsequently suffered damages as a result of the landfill. The discovery of the landfill has made it impossible to finish construction of the sawmill.
BCR Properties’ counsel Tom Moran argued before Justice Church March 8 that, “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 to do his own “due diligence” on the site.
Madam Justice Church was blunt in her disagreement:
“I agree with the submission of counsel for (Brink) that a conscious failure to disclose a latent defect (the landfill) constitutes a fraudulent misrepresentation … I do not agree with the submission of the counsel for (BCR Properties) that the proposed amendments lack sufficient particulars of the alleged fraud and fraudulent misrepresentation. On the contrary, the proposed amendments … add particulars regarding dates, persons and documents which were not in the previous pleadings.”
“The ongoing lack of disclosure of documents by BCR Properties is very troubling,” said Brink.
A trial date has not been set, however it will likely be in early 2018.
Read Justice Church’s ruling