Last summer, the Supreme Court of British Columbia held that a mining regulator may, in limited circumstances, owe a duty to pay a mine owner for its losses suffered as a result of a breach of a duty owed. This spring, the same court applied the same test to find liability on a regulatory authority.
In Imperial Metals Corporation v Knight Piesold Ltd. et al,1 two engineering firms brought a third party proceeding against the BC Ministry of Energy, Mines and Petroleum Resources ("MEM"). They alleged that MEM owed a duty of care to the mine owner, Imperial Metals, to provide the technical advice and directions it supplied as a part of the approval process for the mine permit, with reasonable care. MEM was also alleged to owe a duty to take all reasonable steps within its regulatory authority to reduce or eliminate known risks of imminent danger at the mine.
The Province applied to strike the claims on the basis that they had no merit, alleging the Government did not owe a duty to the mine owner.
Justice Branch determined that the claim alleged against the regulator had enough merit to proceed to trial.2 Specifically, he decided that the Province:
- had a duty to perform its responsibilities outlined by statute as mandatory; and
- may have created an independent duty to the mine owner if the Province or its agents performed acts taking it beyond its responsibilities imposed by statute, such as actively participating in the design or construction of the tailings storage facility of the mine.
Justice Branch further set out a list of "Accepted Exceptions" of particular conduct which could attract liability to an otherwise immune regulator:
- where the regulator steps outside the role of the regulator and assumes the role of the designer, developer or advisor to the regulated party;
- where the regulator acquires knowledge of serious and specific risks to the person or property of a clearly defined group of the class that the statutory scheme was intended to protect;
- where the regulator makes a specific misrepresentation to the regulated party – apart from a regulatory statement – that invites reliance, and the regulated party relies on the misrepresentation for the purpose for which is was made; or
- where interactions between the regulator and the regulated party give rise to a clear set of expectations that the regulator will consider the interests of the regulated party, and the statute does not expressly or implicitly exclude consideration of those interests.
The significance of this decision to the mining industry is evident from the facts of the case from which it arose. The litigation related to the 2014 breach of the tailings storage facility at the Mount Polley mine near Likely, BC.
In Wu v Vancouver (City),3 a case decided after Imperial Metals, the BC Court of Appeal made it clear that statutory duties do not in and of themselves give rise to private duties, especially where interactions with the public are inherent in the statute. More is required. A private duty of care will only arise where the public authority and claimant have a relationship of proximity over and above the regulatory relationship, either by the nature of specific interactions or from the context of the statute.
In Waterway Houseboats Ltd. v British Columbia,4 the court found a duty of care was owed by the regulator by applying the test from Imperial Metals. At issue was the Province's approval of a permit for a privately owned bridge, the improper construction of which caused flooding to adjacent property. The Court found the Province breached a private law duty of care to the property owners created when the Province's engineer:
- stepped outside the role of regulator by providing advice regarding the construction of the bridge and channel beneath it, including its required height;
- acquired knowledge of serious and specific risks of flooding to the adjacent property; and
- made specific representations to the owners about the required bridge height.
The potential for mine owners to claim against regulators is particularly noteworthy in an industry where limitation of liability clauses often limit the mine owner's ability to recover from other parties to a fraction of the mine owner's loss. Mine owners may continue to look at their interactions with their regulator to assess whether there is another party who may have responsibility to help allay their financial losses.
Footnotes
1 2018 BCSC 1191.
2 The nature of the decision in an application to strike the claim necessarily meant that Justice Branch's did not make a final determination on whether a duty of care was in fact owed or whether the Province breached their duty of care. Rather, the question was whether the claim had a chance of success at trial, if it were to proceed.
3 2019 BCCA 23.
4 2019 BCSC 581.
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