IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: FORCOMP Forestry Consulting Ltd. v.

British Columbia,
2017 BCSC 1157

2017 BCSC 1157 (CanLII)

Date: 20170707
Docket: S165177
Registry: Victoria

Between:
FORCOMP Forestry Consulting Ltd. and Martin Watts
Plaintiffs

And:

Her Majesty the Queen in right of the Province of British Columbia,

Albert Nussbaum, Jon Vivian, Patrick Martin and Sam Otukol
Defendants

Before: Master Bouck

Reasons for Judgment

Counsel for the Plaintiffs: P.I. Waldmann

Counsel for the Defendants Her Majesty the A. Dalmyn

Queen in right of the Province of British M. Butler
Columbia, Albert Nussbaum, Jon Vivian and
Patrick Martin:

Place and Date of Hearing: Victoria, B.C.

May 11, 2017
Place and Date of Judgment: Victoria, B.C.
July 7, 2017
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 2

The Application

[1] The plaintiffs commenced this action on December 15, 2016. According to the
registrys record, no responses have been filed, although presumably the notice of

2017 BCSC 1157 (CanLII)

civil claim (the NOCC) has been served on at least one defendant, Her Majesty the
Queen in the Province of British Columbia (the Crown). The Crown now applies
pursuant to SCCR 9-5(1) (a) for an order striking the whole of the NOCC and
dismissing the action. The Crown also seeks its costs of this application and the
action as a whole1.

The Pleading

[2] The NOCC consists of 54 paragraphs and purports to describe the dealings
between the plaintiffs and the Crown and its agents and employees between the
years 1993 and 2016. The pleading describes the plaintiffs business as providing
consulting services to public and private sector operations and businesses,
particularly in connection with compliance requirements with various government
and legislative standards in the forestry related enterprises. Martin Watts is
identified as the principal of FORCOMP. The personal defendants are described as
present or past employees of the Forest Analysis and Inventory Branch (FAIB).
FAIB is said to operate under the auspices of the Ministry of Forests, Lands, and
Natural Resource Operation (the Ministry).

[3] The statement of facts goes on to describe FAIBs mandate and the contracts
performed by FORCOMP for the collection and analysis of data to be used by FAIB.
The pleading does not identify whether FAIB or the Ministry or some other entity was
the contracting party with FORCOMP. Regardless, FORCOMPs contractual
engagement came to an end in 2002 due to what the plaintiffs say were budget
cuts. The NOCC describes ongoing interactions between the plaintiffs, FAIB, the
personal defendants and other individuals over the next 14 years. The NOCC pleads
that the plaintiff and/or Mr. Watts are blacklisted from any further contractual

1
The notice of application is brought solely by the Crown but counsel appearing advised that they
represent all other defendants except Sam Otukol.
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 3

arrangements or dealings with the Crown. The NOCC describes mostly Mr. Watts
efforts to correct what he says is a wrong in the accuracy of the information collected
and used by FAIB in its mandate.

2017 BCSC 1157 (CanLII)

[4] In the final two paragraphs of the statement of facts, the plaintiffs plead that:

53. The Defendants by this reprisal and actions of blacklisting against the
Plaintiffs for expressing their opinions and positions violated the Plaintiffss
[sic] s. 2(b) Charter rights to the fundamental freedoms of thought, belief,
opinion and expression.
54. The misuse, corruption and inaccuracy of forest and carbon data,
analysis and forecasting using growth projection models calibrated with such
data due to a deficient systems in this sector has potentially multiple
cascading and compounding consequences, including financial, and are
contrary to the purpose and intent of the statutes, regulations and guidelines
designed to safeguard the forest resources and carbon issues of the province
of British Columbia.

[5] The Legal Basis for the plaintiffs claim is described as follows:

1. Misfeasance in public office by the Defendants.

2. Conspiracy by the Defendants to harm the Plaintiffs and destroy their
livelihood and professional reputations.
3. Canadian Charter of Rights and Freedoms, s. 2(b) and s. 24(1).
4. Foresters Act, SBC 2003, c 19; Forest Act, RSBC 1996, c 157, Forest and
Range Practices Act, SBC 2002, c 69.
5. The vicarious responsibility of the Defendant Ministry for the acts of the
individual Defendants and other staff in FAIB and other branches of the
Ministry.

Legal Framework

[6] In Wang v. Epoch Press Ltd., 2017 BCSC 136, Verhoeven J. provides this
comprehensive statement of the law that is to be applied on this type of application:

[6] Rule 9-5 of the Rules provides in part as follows:

(1) At any stage of a proceeding, the court may order to be struck out
or amended the whole or any part of a pleading, petition or other
document on the ground that
(a) it discloses no reasonable claim or defence, as the case
may be,

FORCOMP Forestry Consulting Ltd. v. British Columbia Page 4

(2) No evidence is admissible on an application under subrule (1) (a).

[8] I adopt my comments in Lessor v. Toll Estate, 2015 BCSC 427:

.

2017 BCSC 1157 (CanLII)

[15] Pleadings must clearly define the issues of fact and law. Rule
3-1(2) requires that a notice of civil claim must:
(2)
(a) set out a concise statement of the material facts giving rise
to the claim;
(b) set out the relief sought by the plaintiff against each named
defendant;
(c) set out a concise summary of the legal basis for the relief
sought;

[16] I adopt my comments in Stoneman v. Denman Island Trust
Committee, 2010 BCSC 636 concerning the purpose of pleadings:
16 The purpose of pleadings is to clearly define the issues of
fact and law to be determined by the court. The issues must
be defined for each cause of action relied upon by the plaintiff:
Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at
paras. 59-60, citing Homalco Indian Band v. British Columbia,
[1998] B.C.J. No. 2703 (S.C.); and Keene v. British Columbia
(Ministry of Children and Family Development), 2003 BCSC
1544.
17 In Homalco, K. Smith J. stated at para. 5:
The ultimate function of pleadings is to clearly define the
issues of fact and law to be determined by the court. The
issues must be defined for each cause of action relied upon by
the plaintiff. That process is begun by the plaintiff stating, for
each cause, the material facts, that is, those facts necessary
for the purpose of formulating a complete cause of action.
[17] Chief Justice McLachlin emphasized in R. v. Imperial Tobacco
Canada Ltd., 2011 SCC 42 [Imperial] that the plaintiff must clearly
plead the facts upon which it relies in making its claim:
[22] A claimant is not entitled to rely on the possibility that
new facts may turn up as the case progresses. The claimant
may not be in a position to prove the facts pleaded at the time
of the motion. It may only hope to be able to prove them. But
plead them it must. The facts pleaded are the firm basis upon
which the possibility of success of the claim must be
evaluated. If they are not pleaded, the exercise cannot be
properly conducted.
[Emphasis added.]
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 5

[18] As observed by Justice Frankel in British Columbia (Director of

Civil Forfeiture) v. Flynn, 2013 BCCA 91 at para. 10, the test for
striking pleadings because they fail to disclose a reasonable cause of
action is well-known. In Imperial, McLachlin C.J.C. enunciated the test
in these terms:
[17] The parties agree on the test applicable on a motion to

2017 BCSC 1157 (CanLII)

strike for not disclosing a reasonable cause of action under r.
19(24)(a) [now Rule 9-5(1)(a)] of the B.C. Supreme Court
Rules. This Court has reiterated the test on many occasions. A
claim will only be struck if it is plain and obvious, assuming the
facts pleaded to be true, that the pleading discloses no
reasonable cause of action: Odhavji Estate v. Woodhouse,
2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of
putting the test is that the claim has no reasonable prospect of
success. Where a reasonable prospect of success exists, the
matter should be allowed to proceed to trial
[19] In Cimaco International Sales Inc. v. British Columbia, 2010
BCCA 342 at para. 40, Justice Kirkpatrick provided the following
guidelines for determining whether it is plain and obvious that a
claim will fail:
(1) whether there is a question fit to be tried regardless of
complexity or novelty;
(2) whether the outcome of the claim at trial is beyond a
reasonable doubt;
(3) whether serious questions of law or questions of general
importance are raised or if facts should be known before rights
are decided;
(4) whether the pleadings might be amended; and
(5) whether there is an element of abuse of process.
[20] A successful application under Rule 9-5(1)(a) can lead to an
order striking the pleadings with leave to amend, or an order
dismissing the claim outright. If the defect in the pleading may be
cured by amendment, the court may grant leave to amend: Henry v.
British Columbia (Attorney General), 2012 BCSC 1401 at para. 38. If,
however, the claim is without legal foundation regardless of how it is
pleaded the court may dismiss the claim: Henry at para. 38; Extra Gift
Exchange Inc. v. Ernest & Twins Ventures (PP) Ltd., 2007 BCSC 426
at para. 22.

[10] The modern view is that novel claims should not be struck at the
pleadings stage: Mohl v. University of British Columbia, 2006 BCCA 70 at
para. 40, citing Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 6

[7] Subsequent to the parties appearance, the Court of Appeal has described
the purpose and application of SCCR 9-5(1) in this way:

[51] Although there is no dispute over the test to be applied in striking

pleadings for not disclosing a reasonable cause of action, it is helpful to recall
its rationale as explained by the Chief Justice in R. v. Imperial Tobacco

2017 BCSC 1157 (CanLII)

Canada Ltd., 2011 SCC 42. In brief, the test is designed to weed out claims
that have no reasonable prospect of success to ensure that only those claims
that have some chance of success go to trial: paras. 17 and 19.
[20] This promotes two goods efficiency in the conduct of the
litigation and correct results. Striking out claims that have no
reasonable prospect of success promotes litigation efficiency,
reducing time and cost. The litigants can focus on serious claims,
without devoting days and sometimes weeks of evidence and
argument to claims that are in any event hopeless.
[52] This important gatekeeping tool is to be used with care, so as not to
hinder the development of the law. Hence, the court assumes the facts
pleaded are true and asks whether there is a reasonable prospect the claim
will succeed. It is, however, incumbent on a plaintiff clearly to plead the facts
relied on. A court can evaluate the possibility of success only on the firm
basis of the pleaded facts: para. 22. It is, I think, also clear that the exercise
of evaluating the prospects of success does not reduce to a mechanical
exercise of checking whether the material elements of a recognized cause of
action have been set out. The exercise must examine whether the pleaded
facts underlying the cause of action establish a reasonable prospect of
success.
(Chingee v. British Columbia, 2017 BCCA 250.)

[8] Lastly, as the court has observed, when properly drawn, pleadings precisely
define the issues the court will be asked to decide, advise the other party of the case
to be met, determine the extent of pre-trial procedures and guide the trial process.
When they are disorganized, prolix, or confusing, or when they raise irrelevancies,
pleadings impede litigation in contradiction to their mandate: The Owners, Strata
Plan LMS3259 v. Sze Hang Holding Inc., 2012 BCCA 196.

Discussion

[9] The courts further comments in Wang v. Epoch Press are particularly apt
here:

[34] the plaintiff has chosen to attempt to pursue a plethora of causes of

action against numerous defendants in varying capacities based upon many
factual allegations stretching over several years. The difficulties inherent in
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 7

properly pleading such claims are self-made. No matter how complex the
facts and causes of action the plaintiff wishes to assert may be, she is not
relieved of the responsibility of properly pleading them. Indeed, the approach
taken by the plaintiff only serves to emphasize the need for intelligible,
coherent pleadings.

2017 BCSC 1157 (CanLII)

[10] Similarly, the NOCC is a defective pleading for many reasons, not the least of
which is that it fails to clearly and concisely define the issues of fact and law to be
decided by the court. The pleading is verbose and confusing. The NOCC is more
akin to a narrative of the evidence that might be presented at a trial, although not
necessarily a trial on the causes of action identified in the Legal Basis. There are
suggestions of a breach of contract claim, but damages are not being sought by the
plaintiffs on that basis. The NOCC improperly describes the emotions of, or
attributes motives to, the individual defendants. The statement of facts includes
conclusions of law and makes legal argument.

[11] In its notice of application, the Crown describes the several ways in which the
NOCC fails to disclose essential elements of the causes of action alleged by the
plaintiffs. The Crowns notice of application identifies the necessary elements of
those causes of action and notes the omissions in the pleading. The Crown further
submits that some of the claims brought by the plaintiff are statute-barred. The
Crown submits that there is no such cause of action as blacklisting in
British Columbia law. I accept all of the Crowns submissions, with a few
observations. First, any application of the Limitation Act (whether the 1996 or the
2012 version) only arises when pled as a defence to a claim: Jensen v. Ross,
(2014), 58 B.C.L.R. (5th) 28 at para. 44. Second, the law allows a party at least the
opportunity to establish a novel cause of action.

[12] When the NOCC is read as a whole, it is plain and obvious to this presider
that all of the plaintiffs claims as pled are bound to fail at trial.

[13] What then is the proper result? The NOCC cannot be left to stand in its
present form. Nonetheless, the plaintiffs ought to be given an opportunity to properly
plead their case. The difficulty is that the NOCC is so flawed that any amendments
FORCOMP Forestry Consulting Ltd. v. British Columbia Page 8

will be essentially a re-write of the entire pleading, save and except the identification
of the parties. While it is tempting to perform a more precise analysis of the NOCC in
these reasons in order to clearly delineate the expectations of the court with respect
any new NOCC, such an exercise would essentially put the court in the position of

2017 BCSC 1157 (CanLII)

drafting the plaintiffs pleading. By virtue of these reasons, the plaintiffs have been
told that the Crowns objections to the NOCC are legitimate. It behooves the
plaintiffs to present a pleading that addresses all of the defects and omissions
identified by the Crown and this court. In doing so, the plaintiffs should be also
mindful of putting forward a pleading that is concise and otherwise conforms to the
requirements of SCCR 3-7.

[14] Accordingly, save for the style of cause and paragraphs 1 through 4 under
Part 1 (statement of facts), the NOCC is struck in its entirety, with liberty to the
plaintiffs to file an amended notice of civil claim on or before August 31, 2017.

[15] The Crown is entitled to its costs incurred in bringing this application fixed at
$750.

C.P. Bouck
Master C.P. Bouck