January 19, 2021

NOTICE OF CIVIL CLAIM – FACT SUMMARY SHEET

The notice of civil claim was filed in the Supreme Court of BC (Vancouver Registry)
COURT FILING at approximately 4:00 pm the afternoon of January 18, 2021 by Malcolm
Macpherson, a partner at Clark Wilson LLP.

The Defendants named are:

DEFENDANTS
• PEACE RIVER REGIONAL DISTRICT;
• CITY OF FORT ST. JOHN
• HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH
COLUMBIA (MINISTRY OF ENERGY, MINES AND PETROLEUM
RESOURCES, AND THE MINISTRY OF TRANSPORTATION AND
INFRASTRUCTURE);
• DEASAN HOLDINGS LTD.; AND
• BRITISH COLUMBIA HYDRO AND POWER AUTHORITY

The Old Fort community is a rural residential community located downhill and to the
south of the City of Forth St. John (the “City”) within the Peace River Regional
THE OLD FORT
District (the “PRRD”).
COMMUNITY
(GEOGRAPHY) Old Fort is accessible by only one road, the Old Fort Road, which leads south from
the City and curves east into Old Fort. When the Old Fort Road becomes
impassable, the residents of Old Fort are prevented from accessing groceries,
amenities, schools, employment and hospitals and medical services. The majority
of the residents of Old Fort are employed in the City or have employment with mining
or other energy facilities located near or around the City or in other areas of the B.C.
interior.
Immediately north of Old Fort, and north of a southeast curve in the Old Fort Road,
is a steep slope (the “Slope”). A gravel mine, the “Blair Pit Mine”, owned and
operated by Deasan, is located at the top of the Slope. Deasan began operating the
Blair Pit Mine in August 2018 pursuant to certain permits issued by the Ministry of
Energy, Petroleum and Mines Resources (“MEMPR”) and real property covenants
registered by the Peace River Regional District (the “PRRD”). Slightly east of the
Blair Pit Mine, the City operates sewage lagoons which flow down the eastern slide
of the Slope towards the eastern side of Old Fort and ultimately to the Peace River
(the “Sewage Lagoons”).
British Columbia Hydro and Power Authority (“BC Hydro”) has commenced
construction on the Site C Clean Energy Project, a dam and hydroelectric generating
station located on the Peace River approximately six kilometers west of the Old Fort
community (“Site C”).

On or about September 28, 2018, a landslide event occurred on or around the Slope,
causing significant damage to the Old Fort Road and blocking access into Old Fort
LANDSLIDE
(the “September 2018 Landslide”). The September 2018 Landslide persisted over
EVENTS
a period of at least seven days, with sub-surface movements persisting for a period
of approximately twenty-five days.

CW16121572.1
 The residents of Old Fort, and residents of properties located adjacent to the Blair
Pit Mine, including the Homeowners, were evacuated as a result of the September
2018 Landslide pursuant to an evacuation order issued by the PRRD on or about
September 30, 2018 (the “Evacuation Order”). An evacuation alert was also issued
by the PRRD on or about October 1, 2018 (the “Evacuation Alert”). The Evacuation
Order and the Evacuation Alert have been periodically revised since they were first
issued and remain in place in connection with certain areas of Old Fort (including in
connection with the June 2020 Landslide).
On or about June 18, 2020, the September 2018 Landslide reactivated (the “June
2020 Landslide”). During the June 2020 Landslide, approximately one hundred
(100) meters of the Old Fort Road was destroyed and shifted approximately two
hundred and thirty five (235) meters south towards the Peace River. The MOTI
completed a temporary reconstruction of the Old Fort Road to permit access into the
Old Fort Community on or about July 17, 2020.

The Homeowner Properties are accessible by only one road, the Old Fort Road. The
Old Fort Road has become unsafe or unpassable, or unreliably safe and passable.
LOSS OF
As a result, the Homeowner Properties are unusable.
STABILITY,
LOSS OF Lack of access prevents the Homeowners from being able to obtain services, shop
ACCESS, LOSS for essential items such as groceries, access essential and necessary items,
OF VALUE including garbage disposal services and access to potable water which is required
by a majority of the Homeowner Properties, hospitals and medical care and, for a
majority of the Homeowners, to attend their place of employment.
It is highly unlikely that a property that is inaccessible or at significant risk of
becoming inaccessible, will be sold, be capable of being insured, or, will hold any
objective value.
The lack of assured, reliable access to essential services and items is a risk to the
health, safety and security of the Homeowners and has caused and continues to
cause financial and economic harm to the Homeowners.

Negligence of the MEMPR:

CAUSES OF The Province owed a duty of care to the Homeowners in connection with its
ACTION permitting, monitoring and enforcement of human activity at the Blair Pit Mine. The
AGAINST Province was, or should have been aware that:
THE PROVINCE: (a) mining activity at the Blair Pit Mine could cause or contribute to a landslide
or, in the alternative, could materially contribute to a risk of the landslide
NEGLIGENCE
occurring; and
BREACH OF
TRUST (b) a landslide caused or contributed to by mining activity on the Blair Pit Mine
would cause loss, damage, injury and expense to people, including in
particular the Homeowners who owned interests in real property located
near the Blair Pit Mines and accessible by the Old Fort Road.
The Province breached the duty of care it owed to the Homeowners by:
(a) prior to issuing mining permits at the Blair Pit Mine:
(i) failing to adequately and directly warn the Homeowners of
potential hazards, risks and damages to the Old Fort Road and
/ or the Homeowner Properties associated with mining activities
at the Blair Pit Mine;

CW16121572.1 Page 2
 (ii) failing to adequately and directly provide the Homeowners with
notice of and an opportunity to make submissions on the permit
application in respect of the mine;
(iii) failing to ensure that the Blair Pit Mine was suitable for Deasan’s
intended use;
(iv) failing to impose conditions on the 2018 Permit sufficient to
ensure the protection of the Old Fort Road and the Homeowner
Properties from the risk of a landslide caused by operation of the
Blair Pit Mine;
(b) alternatively, failing to decline to issue the mining permits; and
(c) (after issuing the mining permit at the Blair Pit Mine) failing to:
(i) conduct reasonable, appropriate and adequate inspection and
monitoring of the Blair Pit Mine in order to ensure Deasan’s
compliance with the conditions of the Mining Permit and to
identifying any activities occurring at the Blair Pit Mine that
could cause or contribute to a landslide or materially contribute
to an increased risk of a landslide.
(ii) enforce all applicable statutes, regulations, codes, terms and
conditions in respect of Deasan’s operation of the Blair Pit Mine
pursuant to the 2018 Permit; and
(iii) pursuant to s.15(5) of the Mines Act, take immediate remedial
action, and suspend work until remedial action is taken, or close
the Mine if delay in remedying a hazard would be dangerous to
persons or property; and
(d) permitting the resumption of the mining activities at the Blair Pit
Mine knowing of the increased risk to the Slope stability and
potential for landslide activities after September 2018 Landslide and
the July 2020 Landslide.
Negligence of the MOTI
The Province owed a duty of care to the Homeowners in connection with the access
to and maintenance of the Old Fort Road. The Province knew, or should have been
aware that:
(a) failure to adequately plan, design, operate, upgrade, maintain, repair,
rehabilitate and protect the Old Fort Road would leave the Homeowners,
vulnerable to the impacts of the risk of lack of access; and
(b) failure to ensure safe and secure access to Old Fort was likely to cause loss,
damage, injury and expense to the Homeowners, who owned interests in
real property accessible only via the Old Fort Road.
The MOTI also has responsibility for rural subdivision approvals for areas such as
Old Fort and accordingly owed a duty to the Homeowners in connection with the
approvals of subdivisions.
The Province breached the duty of care it owed to the Homeowners in connection
with such subdivision approvals by:
(a) failing to ensure that the Old Fort Road was properly planned and designed
for reliable and assured access to Old Fort, particularly given its proximity
to the Slope and the risk of stability issues with the Slope;

CW16121572.1 Page 3
 (b) failing to plan or design an alternate access route into Old Fort after the
stability issues with the Slope became known and, in particular, after the
September 2018 Landslide Event;
(c) failing to ensure that the Old Fort Road received reasonable and timely
upgrades, maintenance, repairs and rehabilitation, in particular, after the
September 2018 Landslide Event;
(d) prior to approving and subdivision of lands at Old Fort for residential use:
(i) failing to adequately and directly warn the Homeowners of potential
hazards, risks and dangers associated with stability of the Slope
and access to and from Old Fort via the Old Fort Road;
(ii) failing to adequately and directly notify the Homeowners of the
stability issues with the Slope and accessibility issues to and from
Old Fort via the Old Fort Road; and
(iii) failing to ensure that the Homeowner Properties were suitable for
the intended residential uses;
(e) failing to impose conditions sufficient to ensure the protection of the
Homeowner Properties from the risk of landslides caused by stability issues
with the Slope and accessibility issues relating to the Old Fort Road; and
(f) failing to decline to approve any subdivision of the Homeowner Properties
where conditions that could sufficiently ensure the protection of the
Homeowner Properties from potential landslide events related to stability
issues with the Slope and accessibility issues relating to the Old Fort Road
could not be met or maintained.
The Province’s Breach of Fiduciary Duties and Trust
The Province holds certain of the physical environment of British Columbia in trust
for the benefit of the public. The Province breached its fiduciary and public trust
obligations in respect of the environment and subsurface, at, near and adjacent to
the Slope, the Old Fort Road, the Homeowner Properties and Old Fort including by,
among other things:
(a) prior to granting the 2018 Permit, failing to conduct all reasonable,
appropriate and adequate investigations into the effect that the proposed
mining activities would have on the structural integrity of the subsurface in
the surrounding area (and in particular the Slope);
(b) failing to impose all reasonable, appropriate and adequate conditions in
respect of the 2018 Permit in order to protect the integrity of the subsurface
in the surrounding area (and in particular the Slope);
(c) in the alternative, in granting the 2018 Permit even though the mining
activities it authorized threatened or posed an unreasonable and
unacceptable risk of damage to the integrity of the subsurface in the
surrounding area (and in particular the Slope); and
(d) failing to appropriately plan, design, maintain, repair or rehabilitate the Old
Fort Road even though it was in a vulnerable position given its proximity to
the Slope.

Negligence of the PRRD

CAUSES OF The PRRD, as the local government responsible for the Old Fort Community, owed
ACTION a duty of care to the Homeowners in connection with its approval of zoning bylaws
AGAINST and development permits, including but not limited to approval of and development

CW16121572.1 Page 4
 THE PRRD: permits respecting the Blair Pit Mine. The PRRD breached the duty of care owed to
the Homeowners by:
(a) failing to ensure that the Blair Pit Mine was suitable for the intended
NEGLIGENCE
use or purpose prior to approving zoning bylaws and/or issuing
development permits in relation thereto;
(b) failing to ensure that the proposed use of the Blair Pit Mine was
consistent with the Official Community Plan prior to approving
zoning bylaws and/or issuing development permits in relation
thereto;
(c) failing to conduct all reasonable, appropriate and adequate
inspections of development at the Blair Pit Mine;
(d) failing to enforce all statutes, bylaws, terms and conditions
applicable to the Blair Pit Mine;
(e) failing to enforce the Mine Covenant; and
(f) failing to adequately and directly warn the Homeowners of potential
hazards, risks and dangers concerning the Homeowner Properties
caused by mining activities at the Blair Pit Mine.

Negligence of Deasan
CAUSES OF Deasan, as the owner and operator of the Blair Pit Mine, owed a duty of care to the
ACTION Homeowners (as neighbours to the Blair Pit Mine Properties). Deasan was, at all
AGAINST material times, required to exercise the standard of care required of a reasonable
DEASAN: and prudent mine operator in the circumstances. Deasan breached this duty of care
by:
NEGLIGENCE,
NUISANCE & (a) failing to take reasonable care in operating the Blair Pit Mine in
BREACH OF order to prevent foreseeable harm to the Old Fort Road, the
RIGHT TO Homeowners and the Homeowner Properties relating to
SUPPORT geotechnical instability in the Slope caused by mining activity;
(b) failing to comply with the relevant statutes, bylaws, regulations,
permits and covenants;
(c) failing to immediately report to the MEMPR and rectify any breach
of the conditions of applicable statutes, bylaws, regulations, permits
and covenants; and
(d) failing to adequately and directly warn the Homeowners of any
increased risk of landslide on the Slope and / or the Old Fort Road
created by Deasan’s activities at the Blair Pit Mine.
Nuisance Caused by Deasan & Breach of Right to Support
In operating the Blair Pit Mine, Deasan disturbed the subsurface in the vicinity of the
Blair Pit Mine, causing a substantial, non-trivial and unreasonable damage to the
Slope, the Old Fort Road, the Homeowner Properties and/or interference with the
Slope, the Old Fort Road and the Homeowner’s occupation and enjoyment of the
Homeowner Properties, including the right of the Homeowners to have their soil
supported in its natural state by its neighbour.

Negligence of the City

CAUSES OF The City, as the owner and operator of the Sewage Lagoons owed a duty of care to
ACTION the Homeowners, as neighbours of the Sewage Lagoons. The City breached the
duty of care by:

CW16121572.1 Page 5
 AGAINST THE (a) failing to take all reasonable, appropriate and adequate steps to
CITY: ensure that the Sewage Lagoons did not compromise the
geotechnical stability of the Slope, the Blair Pit Mine, the Old Fort
NEGLIGENCE &
Road and the Homeowner Properties;
BREACH OF
RIGHT TO (b) failing to comply with all statutes and bylaws applicable to the
SUPPORT operation of the Sewage Lagoons;
(c) failing to conduct reasonable, appropriate and adequate
inspections of the Sewage Lagoons; and
(d) failing to adequately and directly warn the Homeowners of potential
hazards, risks and dangers that the Sewage Lagoons created in
respect of the Slope, the Old Fort Road and the Homeowner
Properties.
Breach of Right to Support
The City in establishing, operating and maintaining the Sewage Lagoons
compromised the geotechnical stability of the Homeowner Properties and in doing so
breached the right of the Homeowners to have their soil supported in its natural state
by its neighbour.

Negligence of BC Hydro
CAUSES OF BC Hydro, as owner and operator of Site C, owed a duty of care to the Homeowners
ACTION (as neighbours of Site C). BC Hydro breached the duty of care owed to the
AGAINST BC Homeowners by:
HYDRO:
(a) failing to take all reasonable care and appropriate and adequate
steps to ensure that the construction and excavation occurring at
Site C did not compromise the geotechnical stability of the
NEGLIGENCE,
surrounding area including the Old Fort community;
NUISANCE &
BREACH OF (b) failing to comply with relevant statutes, bylaws, regulations, permits
RIGHT TO and covenants; and
SUPPORT
(c) failing to adequately and directly warn the Homeowners of the
increased risk of landslide that the construction activities and
excavation at Site C undertaken by BC Hydro created in respect of
the Slope, the Old Fort Road, Old Fort and the Homeowner
Properties.
Nuisance Caused by BC Hydro & Breach of Right to Support
BC Hydro, in causing or permitting excavation of earth and diverting water at Site C
disturbed the subsurface in the vicinity of Site C and, in doing so, caused a
substantial, non-trivial and unreasonable damage to the Homeowner Properties
and/or interference with the Homeowner’s occupation and enjoyment of the
Homeowner Properties, including the right to have their soil supported in its natural
state by its neighbour.

The actions of the Province, the PRRD and the City have infringed upon each
individual plaintiff’s right under section 7 of the Charter to not be deprived of security
CAUSES OF
of the person. In particular, these actions or omissions have caused the
ACTION:
Homeowners to fear living at the Homeowner Properties, resulting in serious
INFRINGEMENT interference with each individual Homeowners’ psychological integrity, which is not
OF CHARTER in accordance with the principles of fundamental justice.
RIGHTS

CW16121572.1 Page 6
 1. Damages for nuisance and negligence.
RELIEF 2. Special damages.
SOUGHT
3. Equitable compensation.
4. Interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c.79, as
amended.
5. Costs.
6. Such further and other relief as the Honourable Court deems just.

Media Contact:

Malcolm Macpherson
Partner, Clark Wilson LLP
O: 604.928.4202
E: MMacpherson@cwilson.com

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