



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Vancouver 
          Fraser Port Authority v. Canadian Forest Products Ltd.,







2009 
          BCCA 17



Date: 20090121

Docket: CA036616

Between:

Vancouver 
    Fraser Port Authority

Respondent

(
Plaintiff
)

And

Canadian 
    Forest Products Ltd.

Appellant

(
Defendant
)

And

Greater 
    Vancouver Sewerage and Drainage District

Respondent

(
Defendant
)

And

The 
    Attorney General of British Columbia and

The 
    Attorney General of Canada

Respondents




Before:


The 
          Honourable Madam Justice Prowse




(In 
          Chambers)








H. 
          Poulus, Q.C.

A. 
          Sabur


Counsel for the Appellant




R.W. 
          Grant


Counsel for the Respondent

Vancouver Fraser Port Authority






R.G. 
          Hildebrand


Counsel for the Respondent

Greater Vancouver Sewerage

and Drainage District






No 
          one appearing on behalf of

The 
          Attorney General of British Columbia or The Attorney General of Canada


Counsel for the Respondents

The Attorney General of

British Columbia
and

The Attorney General of Canada




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 15, 2009




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 21, 2009



Reasons 
    for Judgment of the Honourable Madam Justice Prowse:

[1]

Canadian Forest Products Ltd. (Canfor) is applying for leave to appeal 
    from the decision of a chambers judge, made October 24, 2008, granting Vancouver 
    Port Authority (the Port Authority) an injunction enjoining the Greater 
    Vancouver Sewerage and Drainage District (the GVSDD) from filing a vesting 
    notice in the land title office in respect of certain lands in the City of 
    New Westminster owned by Canfor until the final disposition of this action, 
    further Order of this Court, or until March 1, 2009, whichever occurs first.  
    The order provides for liberty to apply, and also provides that the Port Authority 
    provide the usual undertaking as to damages.  I was advised that there was 
    some initial dispute as to the content of the order, which was settled on 
    January 6, 2009.

[2]

The trial of the action between the parties has been expedited and 
    is set to be heard for three days commencing February 18, 2009.

[3]

By way of brief background, the Port Authority and Canfor entered into 
    a contract on April 11, 2008 whereby Canfor agreed to sell waterfront property 
    it owns along the Fraser River which is zoned for industrial use (the property) 
    to the Port Authority for a total purchase price of $47.5 million.  That offer 
    was subject to certain conditions which had been removed by the time of the 
    hearing on October 28, 2008.

[4]

It is common ground that the Port Authority had been looking for land 
    of this description to accommodate the increasing demand for interregional 
    distribution facilities in the Lower Mainland for goods coming and going by 
    ship, and that there are few remaining waterfront properties in the Lower 
    Mainland suitable for its purposes.  The chambers judge observed that the 
    Port Authoritys operations are an important foundation to the economy of 
    the Lower Mainland, British Columbia and Western Canada.

[5]

At approximately the same time as the Port Authority was evidencing 
    an interest in Canfors property, the GVSDD was also attempting to acquire 
    the property for the possible future construction of a solid waste management 
    infrastructure, including a new transfer station, a waste energy facility, 
    an organic management facility, a re-use centre, and an education centre.  
    In March 2008, the GVSDD offered to purchase the Canfor property for $34.5 
    million.  When Canfor did not accept that offer, and knowing of the Port Authoritys 
    interest in the property, the GVSDD attempted to negotiate a Section 3
Expropriation 
    Act
agreement with Canfor.  When this failed, the GVSDD then proceeded 
    with an expropriation of the property.

[6]

On June 25, 2008, the Port Authority commenced an action naming the 
    GVSDD as a defendant, claiming that it has a binding enforceable contract 
    with Canfor pursuant to which it has a unconditional right to acquire the 
    legal and beneficial interest in the property and seeking, amongst other relief, 
    an interlocutory and permanent injunction restraining the GVSDD from filing 
    a vesting notice in relation to the property.

[7]

The GVSDD is defending the action, denies that the Port Authority has 
    a legal or equitable interest in the property, and ultimately seeks to have 
    the action dismissed and to proceed with its expropriation of the property 
    pursuant to the
Expropriation Act
, R.S.B.C. 1996, c. 125 (the 
Act
).

[8]

Canfor was added as a party to the action, and opposed the granting 
    of the injunction primarily on the basis that, in the present economic circumstances 
    where the real estate market is falling, the injunction could result in it 
    receiving a lower price for the property, or being deprived of any sale should 
    the GVSDD decide at some point not to proceed with the expropriation.

[9]

It was in these circumstances that the chambers judge granted a four-month 
    injunction precluding the GVSDD from finalizing its expropriation of the property 
    and vesting title in its own name, pending the determination of the action 
    which is now set to be heard in mid-February.

[10]

At the outset of the hearing, I raised with counsel the timing of this 
    application for leave to appeal.  I observed that two and a half months had 
    elapsed since the injunction was granted and that the matter did not appear 
    to have been treated with any degree of urgency.  Further, it was only one 
    month until the hearing of the action and less than two months before the 
    injunction expired according to its terms.  Counsel for Canfor agreed that, 
    even if I were to grant leave to appeal, there was little prospect of the 
    appeal being heard before the date set for the hearing of the action.  In 
    his view, however, there was a likelihood that the injunction would be continued, 
    or a new injunction granted, after the date of the hearing and, possibly, 
    after the present termination date, given what he viewed as the likelihood 
    of the matter ultimately proceeding to appeal from whatever decision is ultimately 
    rendered.

[11]

Counsel for the Port Authority took the position that any appeal of 
    the order would likely be moot by the time any appeal was heard and that there 
    was little utility in granting leave to appeal in the circumstances.  He also 
    submitted that the application did not meet the standard criteria for the 
    granting of leave.

[12]

I note that the other parties to the action took no position on this 
    application.

[13]

Having now had a further opportunity to consider this matter, I have 
    concluded that this is not a proper case in which to grant leave to appeal.  
    Assuming, without deciding, that the usual criteria for granting leave have 
    been met, this is not the usual case.  I am satisfied that the appeal would 
    be moot by the time it was heard (within the meaning of the decision in
Borowski 
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342) and that it is unlikely 
    that this Court would be moved to decide the appeal, since the factual landscape 
    would have changed.  The action would have been heard, and a decision likely 
    rendered.  The injunction may have expired or been modified.  Canfor may or 
    may not have continued to suffer prejudice as a result of being unable to 
    complete a sale of the property or to receive monies pursuant to the expropriation 
    process.  In that regard, I note that the expropriation process is still ongoing, 
    and that the injunction only precludes the GVSDD from vesting title in its 
    own name; it does not impede the rights or duties of the GVSDD to proceed 
    with the expropriation in accordance with the
Act
.

[14]

I am not persuaded that it would be appropriate to grant Canfor leave 
    to appeal based on the possibility that the injunction may be extended in 
    the future.  If a new injunction is issued, or if the present injunction extended 
    by further order of the court, it will be open to Canfor to seek leave to 
    appeal at that time, based on the facts as they then stand.

[15]

In the result, and for these reasons, I would dismiss the application 
    for leave to appeal.

The 
    Honourable
Madam Justice Prowse


