Prince George lumber manufacturer John Brink will be standing on broader ground when his legal battle with BCR Properties Ltd. over a failed land deal heads to court.
In a decision issued Thursday, B.C. Supreme Court Justice Marguerite Church found he can add allegations of fraudulent misrepresentation to his claim.
The sides are at odds over the state of a property in the BCR Industrial Site where a partially-completed sawmill now stands.
Brink alleges the work stopped after a landfill was discovered on the site. He says it covers 22 acres of the 100-acre site, is up to 30 feet deep and contains deleterious materials, including arsenic, mercury, PCBs, and PCPs.
By the time he found out about the landfill, Brink has said he had spent $10 million pouring a foundation for the new sawmill. He also contends it will cost nearly $14.5 million to properly remediate the landfill, which he has said is located within 100 metres of the Fraser River.
The plan was to build a two-line sawmill that would have employed 200 people at 1077 Boundary Rd. location, once home to one of the old Netherlands sawmills.
Church also found the claim can be amended to allege 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.
During submissions on the proposed amendments in late February, counsel for BCR had argued Brink is trying to relitigate a claim previously dismissed by the court.
Matters came to a head when the parties' respective consultants produced "diametrically opposed" environmental reports. While BCR's consultant found there was no need to remove the landfill, Brink's consultant found there was.
Brink refused BCR's request for a second appraiser and for another environmental consultant to be brought in to test the site. In a 2010 decision, the court agreed Brink could refuse further testing.
A five-week trial on the matter had been set to start in January but was put on hold when Brink's lawyer, Jon Duncan, applied to have the claim amended. Dates for a new trial have not been set, but it will likely be held early next year.
By April 2011, his option to purchase had expired and that same year, a B.C. Supreme Court Justice dismissed Brink's allegation that BCR had breached the option by not completing the appraisal.
