Bich c. Harpur  
2022 QCCS 2066  
DATE: May 31, 2022  
THE LEGAL QUESTIONS ...........................................................................................3  
FIRST ISSUE IN DISPUTE..........................................................................................4  
2.1 Conclusion.......................................................................................................4  
2.2 Facts relevant to the issue...............................................................................4  
2.3 Legal principles .............................................................................................29  
2.4 Discussion.....................................................................................................31  
SECOND ISSUE IN DISPUTE...................................................................................56  
3.1 Conclusion.....................................................................................................56  
3.2 Facts relevant to the issue.............................................................................56  
3.3 Legal principles .............................................................................................56  
3.4 Discussion.....................................................................................................56  
Third ISSUE IN DISPUTE ..........................................................................................58  
4.1 Conclusion.....................................................................................................59  
4.2 Discussion.....................................................................................................59  
FOURTH ISSUE IN DISPUTE ...................................................................................60  
Fifth issue in dispute...................................................................................................60  
6.1 Conclusion.....................................................................................................60  
6.2 Legal Principles.............................................................................................61  
6.3 Facts Relevant to the Issue...........................................................................62  
Sixth issue in dispute..................................................................................................63  
7.1 Conclusion.....................................................................................................63  
7.2 Discussion.....................................................................................................63  
Judicial Costs.............................................................................................................67  
FOR THESE REASONS, THE COURT:........................................................................67  
The Kenauk property (Kenauk), a large tract of land near the tourist area of  
Montebello, Quebec, was listed for sale in 2013 by its owners, Oxford Properties. A  
number of groups of investors were interested in the property. Two of these are the object  
of the present judgment.  
One group was initially composed of Defendants Patrick Pichette and Doug Harpur  
(the Pichette group), to be joined later by Defendants Michael Wilson and Domenico  
Monaco. The other was made up of Plaintiff Charles Bich, André Desmarais and Dr.  
Francesco Bellini (the Bich group).  
Certain members of each group had been made aware of the impending sale of  
Kenauk by the agents for Oxford Properties. The groups entered into discussions as to  
whether they might be able to find common ground to purchase the property together.  
Charles Bich represented the Bich group and both Patrick Pichette and Doug Harpur were  
involved in the discussions for the Pichette group. In the end, the Pichette group  
purchased the property, to the exclusion of the Bich group.  
The members of the latter believe that they were misled by Defendants and seek  
redress, including disgorgement from them of the land that Plaintiffs believe they would  
have obtained if Defendants had acted in good faith and respected their contractual  
The Court is called upon to determine whether Defendants breached an agreement  
to submit a joint bid to purchase the property together with Plaintiffs and, if so, to apply  
the appropriate remedy. The quantum of damages has been disjoined and will be  
considered in a separate hearing if necessary.  
A sub-issue to this debate is whether Defendants Pichette and Harpur agreed to  
discuss and prepare a bid solely with Plaintiffs and whether this alleged exclusivity  
agreement was breached.  
The proof will show that Defendants ultimately made their own bid, but Mr. Bich  
posits that even after moving forward alone, the Pichette group agreed to sell him the  
land that he wanted. The Court will also have to consider this affirmation and its relevance  
to the outcome of the dispute.  
Plaintiffs argue that Defendants were in bad faith and duplicitous, preventing Mr.  
Bich and his partners from participating in the bidding process, including from making  
their own bid. If so what are the consequences of this conduct.  
[9] Defendants believe that it is so clear that there was no agreement between the  
parties that Plaintiffsaction is abusive, such that they should be able to recover all or  
some of their extra-judicial costs.  
[10] A sub-issue that the Court will need to consider is who had the right of action  
following the events of 2013. Were the right people in the court room?  
[11] The principal issue is whether there was an agreement between Plaintiffs and  
Defendants to make a joint bid for Kenauk.  
[12] The sub-question that will be considered at the same time is whether, during the  
course of the discussions, an exclusivity agreement was concluded preventing either side  
from seeking other partners to join with them in the transaction.  
2.1 Conclusion  
[13] The Court concludes that there was no exclusivity agreement and no agreement  
between Plaintiffs and Defendants to make a joint bid for Kenauk.  
2.2 Facts relevant to the issue  
2.2.1 The Kenauk Property  
[14] The property is well described in the offering document published by the real estate  
brokers mandated to assist in its sale, Sotheby’s International Reality and Jones Lang  
Kenauk represents a unique investment opportunity to acquire one of the largest  
and most pristine privately held parcels of land in Canada and North America.  
Sprawling over an impressive 65000 acres Kenauk lays claim to over 70 private  
Lakes and is home to a private and secure gated community with 13 luxury chalets  
and an exclusive marina. A pristine river winds through the land and flows for 15  
kilometres from picturesque Lake Papineau towards the Ottawa River. Add over  
102 kilometres of unparalleled Lake front vistas on Lake Papineau, hundreds of  
kilometres of existing roads, the diversity and abundance of fauna and wildlife and  
the possibilities are endless.1  
[15] The biodiversity, the private lakes and perhaps the opportunity to recoup all or  
some of their investment attracted certain individuals to the opportunity. Others were  
attracted to Kenauk with a view to conserving it, essentially without real estate  
Exhibit P-910, p. 4.  
[16] It is not without some interest to briefly consider how Kenauk has evolved since  
the purchase from Oxford in 2013, if only to better understand the intentions of  
Defendants when they purchased it. They have not developed the property other than to  
purchase some of the cottages and to build some others that are rented to the general  
public for hunting, fishing and other outdoor activities, such as hiking.  
[17] Kenauk Properties L.P. holds and manages the real estate, including the rental of  
the cottages.  
[18] Kenauk Canada ULC has the forestry rights.  
[19] Another Kenauk entity manages hunting and fishing over the entire property.  
[20] The partners have formed the Kenauk Institute that carries out active research on  
the flora and fauna with various partners.  
[21] Finally, a significant portion of the property has been transferred to the National  
Conservancy Canada (NCC) and other portions have been designated for transfer in the  
future. The overriding idea is to create a nature corridor right to the Parc National de Mont  
2.2.2 The Individuals Charles Bich  
[22] Charles Bich is a well-educated resident of upstate New York with what he  
describes as an interest in wildlife conservation. His family is the controlling shareholder  
of the Bic group of companies, which sell consumer products such as razors, pens and  
lighters, to name the best known ones.  
[23] He and his apparent partner in the purchase, André Desmarais, have business  
interests in an area just north of the Kenauk property, where they own a farm breeding  
red deer and elk. They also own a pourvoirie, Laurentian Wildlife Estate (LWE) where  
guests can hunt these animals, although at the time of the trial it was not operating due  
to disease in the breeding stock.  
[24] These partners were particularly interested in the parcels of Kenauk that are  
located on its Western edge. These are close to the LWE operation and the farm and  
would allow LWE to offer a much larger area in which the animals could roam and be  
hunted. The guest experience would be enhanced. They also offered easier road access  
to the LWE site and the breeding farm.  
[25] Mr. Bich, who describes himself as an experienced business person of moderate  
sophistication, took the lead in the negotiations for Plaintiffs. From the beginning, his  
interest was to put a group or groups together to purchase the entire property. Mr. Bich  
considers himself as having access to high net worth individuals. Perhaps one such  
person was Dr. Francesco Bellini (Dr. Bellini). Bich was in contact with his son Roberto  
Bellini (Mr. Bellini) throughout the negotiations, but there was no formal agreement  
between the Bellini family and Messrs. Bich and Desmarais. The Bellinis did provide Mr.  
Bich with the conditions under which they would participate in a deal. Roberto Bellini  
[26] Roberto Bellini is one of the sons of Dr. Bellini who built the company Biochem  
Pharma, in which a controlling interest was later sold to Shire Pharmaceuticals.  
[27] The Bellini family was interested in acquiring a private estate for its exclusive use.  
Lake Maholey on Kenauk offered a unique opportunity as it was private and uninhabited.  
In addition, it offered world class bass fishing. Lac des Cèdres and Lake Collins were also  
of interest to the Bellini family for its estate, as they offered world class trout fishing.  
[28] The responsibility for representing the Bellini’s interest was delegated to Mr. Bellini  
by his father, although any deal would ultimately have to be approved by the latter. He  
was ultimately introduced to Mr. Bich who was both the face and the voice of their  
common interests during the discussions with Mr. Pichette and Mr. Harpur. Mr. Bellini did  
not liaise with them or Mr. Desmarais and relied on Mr. Bich for the information related to  
the possible offer to purchase Kenauk, save for some discussions with Mr. Herbert  
Ratsch, a real estate broker.  
[29] Plaintiff Picchio International Inc. is a holding company of which Dr. Bellini is the  
principal shareholder. Mr. Bellini describes it as the central hub of the Bellini family office.  
This said Picchio was never identified during the negotiations.  
[30] Following the failure of Mr. Bellini’s effort to secure Kenauk, and particularly Lake  
Maholey, the family purchased another large estate. Patrick Pichette  
[31] The former CFO of a large multi-national, he owned a home on Lake Papineau.  
His interest in the purchase was in preserving the low density around the Lake Papineau  
portion of the Kenauk property. He described his interest as 100% conservation, but  
wanted to preserve controlled public access to the property, so that others could continue  
to enjoy it. The small outfitting and tourist operation might continue but, for long term  
viability, he believes that Kenauk should attain a break even position.  
[32] Like one of his ultimate partners Domenico Monaco, in the winter of 2012 he had  
been approached by a developer, Phil Bourque, who had an exclusive purchase option  
and was talking about building 250 houses on Lake Papineau. Mr. Pichette was mortified  
as development would destroy the pristine nature of the property. At that point he and Mr.  
Harpur made a couple of offers to Oxford that were not accepted.  
[33] He continued to follow the developments around the sale of the property and  
became involved again in the early summer of 2013, all the while coping with a heavy  
work schedule at his then employer. Doug Harpur  
[34] Mr. Harpur was born in Montréal and has been involved in various aspects of agri-  
business and forestry since early in his working life. Some of the businesses are operated  
in conjunction with his wife and her family. One is a deer farm near the north-eastern limit  
of Kenauk that he was interested in expanding with some of the Kenauk land. The family  
had a dock on Lake Papineau and enjoyed hiking in Kenauk.  
[35] At the outset Mr. Harpur was an advisor to Mr. Pichette, but became a partner as  
the project evolved. The partnership was cemented (a hand-shake deal) following a  
luncheon at his farm on August 18, 2013, where he agreed to commit $5 million to the  
purchase. He was particularly focused on a conservation plan. Michael Wilson  
[36] Mr. Wilson is currently a corporate director for whom family values and the  
outdoors are very important.  
[37] At the time of the Kenauk transaction he was the CEO of Agrium and was very  
interested in land conservation having acquired large tracts of land in various areas of  
Canada. Some of these have been donated as conservation areas.  
[38] George Hasenberger and Mr. Ratsch both approached him about Kenauk in  
September 2013, and he eventually met with Mr. Harpur and visited the property. Mr.  
Ratsch provided him with the presentation booklet2 and informed him of the interest of  
others, including Mr. Bich, Mr. Pichette, Dr. Bellini and Mr. Desmarais.  
[39] His interest was in a parcel known as Lake Mills, as well as Baie Noire. Domenico Monaco  
[40] Mr. Monaco is a Montreal businessman with significant links to Kenauk. His father  
was a member of the Seigneury Club3 and the family had a home on the property in the  
mid-1970’s. He was very sad when the Club was sold, but since then he has been a  
regular visitor to Kenauk; sometimes several times per year.  
[41] He had discussions with Robert MacDougall, one of Oxford’s brokers in August  
2012. Mr. Monaco thought the property would be parcelled and sold, which made him  
Exhibit P-910.  
Prior to the beginning of the operations of the Fairmont Chateau Montebello, the building and  
surrounding lands were operated as a private club.  
uncomfortable, actually sad, as he described his emotions. On January 2013, he provided  
a letter of interest to Mr. MacDougall stating that he was prepared to commit up to $4.5  
million toward a potential purchase with like-minded people.4  
[42] Mr. Pichette was an acquaintance of Mr. Monaco. The latter expressed his interest  
in the property to Mr. Pichette early in 2013.Yet, it was only in the fall that Mr. Pichette  
solicited his interest in participating in a deal.5 Herbert Ratsch  
[43] Mr. Ratsch is a broker affiliated to Sothebey’s and was retained by Oxford to assist  
in the sale of the property. He had taken members of the Bellini family on a helicopter  
tour6 of the property and in subsequent discussions with Mr. Bich informed him of their  
interest in the Lake Maholey sector of the property. Mr. Ratsch also informed Mr. Bich of  
the interest of Mr. Pichette and Mr. Harpur in the Lake Papineau sector.7  
[44] He remained one of the vendor’s brokers throughout the discussions leading up to  
the purchase by Plaintiffs’ group.  
[45] Mr. Bich and the Bellini family may be considered as having been introduced to  
the transaction by him. Michael Wilson is another person who he introduced to the  
property. Robert MacDougall  
[46] He is a real estate broker with Jones Lang Lasalle and was also retained by  
Oxford. He describes his role as having a joint mandate with Mr. Ratsch. Mr. Pichette and  
Mr. Harpur were introduced to the opportunity by him.  
[47] Several others, including Lyme Timber, National Conservancy Canada (NCC), and  
Dominic Monaco were introduced to the property and the opportunity by him.  
2.2.3 The Discussions Introduction  
[48] What were the real interests of the parties to the present dispute? The answer to  
this question is important as, in the Court’s view, the actual underlying interests of the  
parties, although not always apparent to the other party, were the root cause of their  
failure to make an offer together.  
Exhibit P-94.  
Exhibit P-388.  
Exhibit P-352.  
Exhibit P-60.  
[49] Throughout his testimony Mr. Bich underlined that his overriding interest was not  
development. He was also well aware of the conservation goals of Mr. Pichette. But, what  
was Mr. Bich’s real interest?  
[50] The answer to this question will be important as there is no doubt when considering  
the evidence as a whole that the interest of the Pichette group was conservation of the  
entire property, even if their initial interest was preserving Lake Papineau.8  
[51] Despite his knowledge of the goal of the Pichette group, Mr. Bich continued to  
question their intentions for Lake Papineau, in addition to proposing scenarios where his  
group would obtain potentially important amounts of land on the lake.  
[52] The particular land interests of the various protagonists, that the Court had  
described, were eventually discussed. However, it took some time to get to this point and  
to identify all of the initial players, as this really only began to be somewhat clear on  
August 13, 2013, at the offices of Heenan Blaikie.  
[53] What happened before is also important as it gives insight into the real thoughts  
of the parties. 2012 to August 2013  
[54] Mr. Bich was initially approached by Mr. Ratsch, who had been the seller’s agent  
for the LWE purchase in October 2012. Mr. Ratsch underlined the break-up value of  
Kenauk for Mr. Bich following an initial purchase.9  
[55] Mr. Pichette and Mr. Harpur became interested in the property in 2012, after Mr.  
Pichette was approached by Mr. Bourque.  
[56] After his and Mr. Harpur’s second aborted offer in 2012 Mr. Pichette “parked” his  
interest in Kenauk. Then, in the fall of 2012, he was advised by Mr. MacDougall that  
Oxford would start a bidding process for the property. Although they were not partners in  
early 2013, Mr. Pichette and Mr. Harpur continued to discuss the property and Mr. Harpur  
continued to discuss it with Mr. Bich.  
[57] Within a similar timeframe to Mr. Pichette, Mr. Monaco had also been approached  
by Mr. Bourque. He was not impressed with the proposal (or it seems the individual) and,  
moreover, his vision was to keep the property whole.  
[58] Mr. Harpur had also sent an email to Mr. Bich on November 25, 2012, advising  
that he wanted to have a discussion with him. Apparently, Mr. Pichette had asked him to  
Their ultimate partners, Mr. Monaco and Mr. Wilson also firmly believed in conservation. The  
partnership with the NCC is also a testament to their belief that the conservation of Kenauk was  
Exhibit P-52.  
do this. Mr. Harpur and Mr. Bich had met earlier, likely in July 2012, in connection with  
Mr. Bich’s deer farming operation and LWE. Meetings took place both at LWE and at Mr.  
Harpur’s own farm. This initial discussion focused largely on their perceptions of the value  
of the land.  
[59] In January 2013 Mr. Ratsch sent Mr. Bich an appraisal report that mentioned the  
possibility of 250 lots on Lake Papineau and a value of $145 million for the entire  
property.10 The report referred to the “Highest and Best Use” of the land. The economic  
value of the lots on Lake Papineau was a recurring reference point for Mr. Bich throughout  
the discussions with the Pichette group.  
[60] Mr. Rastch, although on Plaintiffs’ witness list, did not testify on the report or his  
communications with Mr. Bich. As for Mr. Bich, he never shared the report with the  
Pichette Group.  
[61] Mr. Bich then inquired with Mr. Harpur on January 19, 201311 if Mr. Pichette would  
be interested in selling lots on Lake Papineau, the crown jewel of the property. This was  
not the case, as Mr. Harpur informed Mr. Bich that Mr. Pichette wanted the entire lake  
and would like to hold on to it.12  
[62] This did not seem to deter Mr. Bich who continued to see the development  
potential, including of numerous lots on Lake Papineau. Having contacted Dr. Bellini on  
January 18, following his exchange with Mr. Harpur on that day, Mr. Bich emailed Dr.  
Bellini again on January 23, underlining that there were private lakes to sell and lots to  
sell on the large lake.13 He also pitched his friend Mr. Desmarais, suggesting that for a  
purchase price of under $50 million the numbers would work.14 Here is the part of the  
exchange with Mr. Desmarais, despite Mr. Desmarais having advised Mr. Bich that he did  
not want to do a real estate play:  
I can explain how I was trying to put this together when I am closer.  
It would actually be a structure where we could get the land for free and we would  
not need to put more than we discussed.  
It is not ready yet though as I want to make certain that the numbers work but  
There is about 110M of asset when broken up into roughly 37 parcels and if the  
property can be purchased for under 50 then the numbers work.  
Exhibit P-83.  
Exhibit P-87.  
Exhibit D-11.  
Exhibit P-92; see also exhibit D-15.  
Exhibit P-91; see also exhibit D-14.  
[63] This note is perhaps not surprising, as in the Re-amended Originating Application  
Mr. Bich confirms his interest in the development potential of the property:  
24. Bich knew that Oxford was interested in selling the Property quickly and that  
there could be the possibility of economic gain for anybody who would have the  
financial strength to purchase and carry the Property;  
25. Bich was interested in the Property because of the real estate value that could  
be left on the table by Oxford in the context of its "bulk sale" approach, and he  
sought more particularly the Western portion of the Property;  
114. From the time Bich became interested in purchasing the Property, he had  
carried out a due diligence process to ascertain how the Property could best be  
developed, the areas that could be the most marketable, and how to market  
(The Court’s underlining)  
[64] On February 7, Mr. Bich was back in contact with Mr. Harpur, setting out the  
difficulties in moving forward if Mr. Pichette wanted the entire lake:  
My issue is still that the lake is the land with the most potential for resale value and  
based on my calculations worth a bit over ½ the entire property if only developed  
with approximately 25 lots no more. There would need to be restrictions on the  
lake as I do not want to be part of this at all if there is a possibility of 250 houses  
on the Lake.16  
[65] The discussion with the Bellini’s was different. To them, on February 11 Mr. Bich  
raised the possibility of the sale of 40 100 lots on the property,17 which in his testimony  
he acknowledged as meaning 27 to 66 lots on Lake Papineau.  
[66] And, there was yet another scenario raised with Mark Smith, an acquaintance and  
seemingly an advisor to Mr. Desmarais and Mr. Bich. This time the vision was for 25, 300  
acre, lots on Lake Papineau and a total of 55 lots on the property.18  
[67] Then on March 9, in the context of the LWE discussions with Mr. Desmarais,  
considered more fully below, Mr. Bich pitched the idea of 50 100 house sites of 50 acres  
each on Lake Papineau.19  
Re-amended Originating Application, November 29, 2016. He also claims loss of developer’s profits in  
the application. Further in his deposition of May 11, 2016, he admits that he wanted to recover his  
capital by selling lots on the lake; pp. 128 and 135.  
Exhibit D-211.  
Exhibit D-15.  
Exhibit D-259.  
Exhibit P-133.  
[68] Moreover, although in March Mr. Ratsch had made Mr. Bich aware20 of Mr.  
Pichette’s concerns around development, even for the 25 lots on Lake Papineau, Mr. Bich  
housing ideas were kept quiet and he even asked his partners not to talk about what he  
was thinking.21 However, as these exchanges show, during the period prior to August  
2013, within the Bich group, the possibility of development was very much front and  
[69] Through Mr. Ratsch, Mr. Pichette did have some knowledge of the idea to develop  
25 lots on Lake Papineau, but had he been fully aware of the Bich group’s idea to sell  
numerous lots, it is unlikely that any discussions would have commenced.  
[70] Given his limited knowledge of Mr. Bich intentions, during the period leading up to  
August 2013, Mr. Pichette was interested in discussing scenarios with Mr. Bich and in the  
spring had told Mr. Ratsch that the former could call him. Mr. Bich did not make the call  
and the two only met in August.  
[71] Yet, curiously, on May 22 Mr. Bich told Mr. Desmarais that they were much further  
along with the plan to purchase the property with the “Google guy”.22  
[72] On May 25, Mr. Bich’s potential deal was with “a group of people”,23 even if the  
Bellinis had not formally expressed their interest. This only happened on June 5.24 Their  
vision was for some development and common access to Lake Papineau, but was never  
shared with Mr. Pichette.25  
[73] Discussions between Mr. Bich and the Bellinis continued during July. Mr. Bich  
envisaged the following structure, which he communicated to the Bellinis on July 2:  
Acquisition Price and breakdown.  
Laurentian up to 10M = 20% (Lot 7, 8, 11, 12, 19)  
Your Family up to 10M = 20 % (Lot 1, 2, 3, 4, 5)  
Pichette up to 30M = 60% (they would get lots D1 D2, P1, P2, P3, P4, P5, P6, P7,  
and 20)  
Lot 6 would be under common ownership entire homeowners association  
Exhibit D-364.  
Exhibit D-191.  
Exhibit D-192.  
Exhibit P-167.  
Exhibit P-175.  
Mr. Pichette described Mr. Bich as being very secretive about who he was working with throughout the  
process. Mr. Harpur likened the dealings to serving the tennis ball and not getting it returned.  
Lot 9, 10, 13, 14, 15, 16, 17 and 18 would be Your family and Laurentian only so  
that we can sell  
If we sell these lots with an approximate target of $12,500,000 sales then what we  
keep would have cost us 3,750,000 which is a really good deal.26  
[74] Mr. Pichette and Mr. Harpur were of course unaware of their contribution, as this  
proposal was not communicated to them.  
[75] Following this, on July 19, the Bellinis communicated another formal document,  
prepared by Roberto Bellini, confirming their agreement to move forward with the  
purchase and the sought after financial and other terms. The Bellinisfinancial  
contribution was $10 million on a $50 million purchase price. Part of the proposal was  
access to Lake Papineau and a sharing of lot 20, which was also part of the land coveted  
by Mr. Pichette.27 For the Bellinis, however, it was the Lake Maholey portion of the  
property that was important. This exchange was not shared with the Pichette group,  
despite its interest in preserving Lake Papineau and the contiguous lots, including lot 20.  
[76] The subsequent discussions between the Bellinis and Mr. Bich were verbal or by  
email. The terms and conditions of the July 19 document were not revised in writing. Mr.  
Bich represented the Bellinis’ interests to the Pichette group throughout the process,  
during which Mr. Bellini remained in agreement with a 60/40 split on capital.  
[77] Finally, around the same time it seems that Mr. Bich may have been telling Mr.  
Ratsch that there was a meeting in the works with Mr. Pichette and Mr. Harpur, although  
they clearly did not know about it!28 It took Mtre Heenan to set up that meeting. August 13 to the Bid Date  
[78] The late Roy Heenan facilitated a meeting at the offices of Heenan Blaikie on  
August 13 between the Pichette group and the Bich group.  
[79] The meeting was attended by Mtre Heenan, his partner Bruce McNiven, who was  
Mr. Bich lawyer, Mr. Bich, Mr. Harpur, Mr. Pichette and Gram Ramshaw, an LWE  
employee. Although the proof lacks clarity, the Court will try to resume what was  
[80] The division lines, meaning the parts of the property that interested each group  
were discussed, but seemingly at a very high level. As to whether the actual financial  
contribution of each group (or group member) was discussed at this meeting the parties  
Exhibit P-185.  
Exhibit D-196; an earlier proposal spoke of a $5 million contribution to a 44.5 million offer, exhibit P-  
Exhibit P-197.  
have different versions. Maps may have been looked at, but no lines were physically  
drawn on the maps.  
[81] According to Mr. Bich, his group expressed a willingness to contribute to a level of  
40% of the purchase price, based on the assumption of a $50 million offer. It viewed the  
Lake Papineau area that the Pichette group wanted as being more valuable. This was the  
basis for the initial 60/40 financial split that the documentary evidence raises on numerous  
occasions. For Mr. Bich, this 60/40 proposal he claims to have made constituted an offer  
to the Pichette group. According to Mr. Bich, it was insistent on a 50% financial  
contribution from the Bich group.  
[82] It was clear to Mr. Bich that Mr. Pichette’s interest in Lake Papineau was  
[83] Both Mr. Harpur’s and Mr. Pichette’s recollections of the scope of the meeting differ  
from Mr. Bich’s. They describe the meeting as a meet and greet. There was also an  
element of trying to improve the relationship between Mr. Harpur and Mr. Bich who were  
far from being on the same page.  
[84] Mr. Harpur recalls that the focus of the meeting was around the value of the land.  
For him there was no discussion of capital contributions or the division of the property.  
Mr. Pichette shares Mr. Harpur’s recollection of the meeting; it was high level, with no  
discussion of respective contributions, or of a role for NCC, and certainly no discussion  
of a 60/40 split. He does recall some discussion of the areas that each group was primarily  
interested in. In addition, he left the meeting thinking that Mr. Bich had the financial  
backing to purchase the entire property on its own.  
[85] On August 16 Mr. Bich set out his vision that there should be clear areas defined  
for all of the investors.29  
[86] The discussions continued. Mr. Bich wanted to bridge the gap between the land  
each group coveted and, more particularly the percentage of capital that he believed that  
each group was prepared to contribute. The issue of timber rights was raised and Mr.  
Bich made it clear that he did not wish to sell them.  
[87] On August 19, 2013 Mr. Harpur sent a map (Pichette map #1) showing the land  
around Lake Papineau that he and Mr. Pichette wanted exclusively, still looking for a  
50/50 split on the capital contribution, according to Mr. Bich.30 Mr. Pichette disputes this  
characterisation, as he was working in dollar amounts and not percentages. Moreover,  
the email with the map does not refer to any split.  
Exhibit P-245.  
Exhibit P-247; the map is exhibit D-94.  
[88] Mr. Harpur put together a very preliminary joint venture agreement31 on the same  
day. It was really a document that set out issues that would need to be discussed in the  
context of any eventual agreement with Mr. Bich.  
[89] The response of Mr. Bich on August 19 included the following: “I think we would  
be open to a 50/50 split in the acquisition but in this case we would want 50% across all  
assets of the property…. Which would mean that we each own 50% of the shoreline of  
Papineau, Lakes and forest land.”32 This was not acceptable to Mr. Harpur, as the Bich  
group would get 50% of Lake Papineau. It was certainly not a real follow-up to the ideas  
that Mr. Harpur had put forward earlier in the day. Mr. Pichette was very surprised as the  
proposal was a long way from the map that his group had just sent. Moreover, up to that  
time Mr. Bich had not shown any interest in Lake Papineau.  
[90] Mr. Bich’s next proposal on August 20 was that they all be partners at 25% each  
over the entire territory and set out what parcels would be attributed to each partner.33  
This was also the first time that the Bellini interest had been disclosed in writing34 and  
again the idea was a far cry from Pichette map #1. The proposal also referred to: “Mr.  
Pichette's idea that we sell enough land to get all of our capital back”, a notion that Mr.  
Pichette categorically denies putting forward as being totally contrary to his vision for the  
property. This Bich proposal did not move forward. In fact, Mr. Pichette was disappointed  
and surprised by it as he had understood that Mr. Bich was not interested in Lake  
Papineau. However, the discussions continued.  
[91] At this juncture Mr. Bich also began35 exploring the option of seeking other  
investors with his partners. He was frustrated as he did not believe that Mr. Harpur was  
making a serious effort to address the differences between the two groups. This said, on  
August 21, 2013, Mr. Harpur communicated that he believed that the parties were not far  
off.36 He had reviewed the values assigned to the lakes by Mr. Bich and believed that  
they were largely acceptable.  
[92] Mr. Bich was not so sure that the groups might be close as he was again reaching  
out to Mark Smith to find investors.37  
[93] A call occurred on August 22 between Mr. Bich, Mr. Harpur and Mr. Pichette, but  
there was still no full meeting of the minds. In addition the recollection of the participants  
Exhibit P-248.  
Exhibit P-269.  
Exhibit P-277; also part of D-19.  
There is some disagreement as to whether it was raised at the Heenan Blaikie meeting.  
Exhibit D-36.  
Exhibit P-287.  
Exhibit P-281.  
[94] For Mr. Bich an exclusivity agreement was entered into, without a term. His  
understanding was that the two groups agreed that they would negotiate exclusively with  
one another in relation to the land that each wanted. Mr. Bich could not speak to anyone  
regarding the Papineau area and Mr. Harpur could not speak to anyone regarding either  
the Western portion or Lake Maholey. There was to be no discussion with timber interests  
or developers. The intent was to make a joint bid if the terms could be agreed upon.  
[95] Mr. Bich also testified that there was still a gap in the respective capital  
contributions, and denied that there was any discussion of same during the call.  
[96] Mr. Harpur stated that a frustrated Mr. Pichette agreed to increase the Pichette  
contribution to $25 million for the entirety of Lake Papineau. The Bich group would pay  
$20 million for the rest. Mr. Harpur denies any discussion of exclusivity or of the Bich  
group wanting two lots on Lake Papineau.  
[97] Mr. Pichette also presented a very different perspective on the call. Following the  
communication of his map #1, he and Mr. Harpur had received two proposals from Mr.  
Bich that bore no resemblance to it. His goal was to bring the parties back to Pichette  
map #1 and to nail down an amount that he and Mr. Harpur were prepared to put into the  
transaction for the land they wanted. Mr. Pichette confirms that it was during this call that  
he agreed to contribute an extra $5 million for the entirety of Lake Papineau, to the chagrin  
of Mr. Harpur.  
[98] On the financial aspect, Mr. Pichette understood that Mr. Bich personally was fine  
with the newly proposed capital split, but he still had to discuss it with his partners, whose  
identity was still unclear, although the Bellini name was known, as was Mr. Desmarais’  
association with LWE.  
[99] As to exclusivity, the basic issues of the capital contributions and the boundaries  
would have to be ironed out before there could be discussion of exclusivity. He described  
the discussion on August 22 as the first inning of a much longer process and that the  
parties were nowhere close to the point where exclusivity might have been agreed to. He  
did allow, however that while they were waiting for Mr. Bich to revert with the position of  
his partners that his group had a moral obligation not to seek out other investors.38  
[100] No document was produced setting out an undertaking not to negotiate with other  
interested parties. Mr. Bich did not mention exclusivity in his written communications to  
his co-investors Mr. Desmarais and Mr. Bellini on the same day.39 With the exclusivity  
agreement supposedly in place, Mr. Bich reported that he had made good progress on a  
deal with Mr. Pichette, but wanted one more concession, which Mr. Bellini understood to  
See exhibit P-305 as an indication of Mr. Pichette’s understanding that Mr. Bich had to consult with his  
Exhibits D-22 and D-23.  
be lots on Lake Papineau. The “concession” had not been mentioned during the August  
22 call.  
[101] Nor was there any discussion of exclusivity in his email to Mr. Desmarais the  
following day. Tellingly, there was discussion of the $25 million that the Pichette group  
would be prepared to pay.40  
[102] Following this call Mr. Bich wrote to Messrs. Pichette and Harpur at 3:08 p.m. on  
August 23:  
I hope you agree that yesterday's call was very constructive. Provided we can get  
clarity on a few points that I think can be resolved, there is clearly an opportunity  
here for our two groups to submit an offer between us that is well valued and also,  
as between us, fairly valued.  
Working together is also the best approach at this stage, since we each have the  
capacity to come to timely decisions quickly and we share the same underlying  
philosophy about the property. That said, if you feel the need to seek other  
participants in your group, I have no objection if it helps you in your funding.  
But it seems to me there is a difference between that and speaking to others at  
this stage whose interests may not be as aligned as ours, such as timber  
companies or developers.  
I also think at this stage it is counter-productive to look for other players that might  
have an interest in one or other of our respective portions of the whole. As I have  
said before, our own numbers have been calculated on what we think is a fair  
balance of values on the portions of the property we would have versus those that  
you would have. Bringing in a third party who might have an interest in a part of  
your portion or ours will skew the equation.  
Based on good faith, we are not pursuing discussions with other parties (such as  
developers) who could be interested in those parts of the property that are not part  
of our own plans, since we think that your group and ours represent the best future  
for the property in its integrity  
I suggest that we maintain focus now on the last details of the property division  
between our two groups, along the lines we have been discussing.  
Please let me know when we can convene again with the hope of finalizing to then  
allow us to map out next steps of an offer.41  
(The Courts underlining.)  
Exhibit D-24.  
Exhibit P-305.  
[103] Mr. Harpur agreed with large portions of the email, including working together, but  
did not agree that his group should not speak to timber companies.  
[104] Mr. Harpur followed this up by verifying whether it was okay to speak to Mr.  
McQuat, a contact with whom he had previously discussed the property. He referred to a  
tentative agreement. This communication is also important, as it refers to an overspend  
of $5 million, which gives credence to his and Mr. Pichette’s version of the August 22  
[105] Later in the day, Mr. Pichette sent an email confirming that he agreed that they  
should work together. His email also confirmed his understanding that Mr. Bich had to  
discuss the matter with his partners and revert.43 Following this he expected Mr. Harpur  
and Mr. Bich to work together on the framework of an agreement.  
[106] Mr. Bich did not inform the brokers of an exclusivity agreement either. In fact on  
August 27,44 and again in September 4,45 Mr. MacDougall reported to Oxford that he was  
expecting an independent offer from the Bich group. This was based on information  
received from Mr. Ratsch, who was disappointed to learn later in the process that the Bich  
group would not make an independent bid.46  
[107] As for Mr. Bellini, he indicated that he was made aware of the exclusivity  
agreement during a call with Mr. Bich on August 26. He did not ask for written confirmation  
as he trusted Mr. Bich. He cannot recall Mr. Bich using the words “agreement in principle”  
or “tentative agreement”. On the other hand on August 28 he suggested shopping around  
with others,47 although he stated that he did not do so. He was concerned that the 60/40  
capital split was still on the table. Mr. Bich felt that he would prefer to work with the  
Pichette group, although developers were likely interested.  
[108] The call was followed up by an email to Mr. Desmarais where Mr. Bich indicated  
that there is only one outstanding issue with Mr. Pichette.48 Mr. Bich stated that this was  
in relation to the capital contribution of each party.  
[109] But, it was not only a potential Kenauk deal and exclusivity that was preoccupying  
Mr. Bich. So was LWE. On August 25 he prepared a draft letter to pitch memberships for  
LWE where he said: “We are looking at being part of a group to buy the Fairmont Kenauk  
property near Montebello”.49 The Court will return to LWE later.  
Exhibit P-303.  
Exhibit P-305.  
Exhibit P-329.  
Exhibit P-367.  
Exhibit P-585.  
Exhibit P-335.  
Exhibit P-291.  
Exhibit P-309.  
[110] On August 27, 2013 Mr. Bich wrote to Messrs. Pichette and Harpur suggesting yet  
another approach.50 The idea this time was for Messrs. Bich/Desmarais and Bellini to  
increase their contribution to 44% on a $45 million offer. This, in fact still represented the  
initial $20 million that they had always been prepared to commit on a 60/40 $50 million  
offer, although Mr. Bich maintains that he always spoke in percentages, not amounts. Be  
that as it may, during the course of the discussions, he and Mr. Desmarais were never  
prepared to contribute more than $10 million between them.  
[111] Mr. Bich drew a new map,51 but added that his group wanted two buildable lots on  
Lake Papineau. Some parcels of land might be sold to recover part of the investment.  
The new map was also quite different from Pichette map #1, Mr. Bich wanting to obtain  
some of the land that was coveted by Mr. Pichette.  
[112] Mr. Harpur was very surprised to receive this as he was waiting for them to accept  
Pichette map #1 and to commit to a $20 million contribution on a $45 million offer. For  
him this new proposal negated any tentative agreement that had been made on August  
22, including any exclusivity agreement, although he does not believe that one had been  
agreed to. He viewed this new proposal as a land grab, particularly given a potential value  
of $5 million for each lot on Lake Papineau.52  
[113] Mr. Pichette had the same sentiment. In addition to the two lots on Lake Papineau,  
the new map took large parts away from Pichette map #1. If, for arguments sake, these  
had a value of $1 million, the Bich group was effectively getting the portion that had been  
discussed with that map for $9 million. Mr. Pichette was deflated, as the discussions were  
back to square one, save for the apparent agreement of the Bich group on a financial  
contribution of $20 million on a $45 million offer.  
[114] The wording of this new approach also gives pause. Mr. Bich talks about the  
“moving parts of a potential deal” and of having reviewed them with “the other parties for  
whom I speak”. In addition it refers to his hope that they could proceed to a joint offer.  
[115] In addition, on the same day, Mr. Bich reached out to Dr. Bellini to try to pique his  
interest in the hunting venture. It seems that he was still seeking financing.53  
[116] The next day Mr. Harpur nonetheless sent a new proposal for the property lines  
(Pichette map #2).54 Essentially two additional lakes were carved out to give more value  
to the Bich group’s portion of the property. Perhaps curiously, Mr. Bich did not forward  
this new map to Mr. Bellini or Mr. Desmarais. In addition, Mr. Bich stated that he  
understood that a 50/50 capital split was still on the table, which does not appear to have  
been the case, given the August 22 phone call.  
Exhibit P-320.  
Part of exhibit P-320.  
In paragraph 8 of exhibit P-359, Mr. Bich attributed this value to lots on Lake Papineau.  
Exhibit P-323.  
Exhibit P-327.  
[117] Around this time the possible participation of Lyme Timber also appears to have  
been considered by the Pichette group,55 its representative having done a site visit on  
August 29. They were introduced by Mr. MacDougall via his contact at the NCC, Joel  
Bonin. Mr. Bich believed that Lyme was primarily interested in the same area as himself  
and Mr. Desmarais, although Lyme expressed the possibility of making an independent  
bid.56 However, Mr. Bich was not aware of their interest until after the closing of the deal  
when it was reported in the press.  
[118] On August 29 there was still no deal on the two building lots on Lake Papineau for  
the Bich group. Mr. Pichette wanted to agree on boundary issues first and then discuss  
the cost matters.57 He was hoping that Mr. Harpur and Mr. Pichette would make progress  
on those issues while he was on a very busy travel schedule.58  
[119] It is also fair to say that at this point the Pichette group was less inclined to continue  
discussions with Mr. Bich, as it appeared that Lyme’s participation might help bridge the  
financial gap between the expected offer price and the capital that it had available.59 Mr.  
Harpur was also tired of working with Mr. Bich. He added that even if he finally did a deal  
with Mr. Bich, there might still be a place for Lyme.  
[120] Nor was there agreement on August 31 and Mr. Bich felt the need to send an email  
reviewing the discussion since the outset.60 He still believed that their negotiations were  
exclusive at that time. Mr. Pichette viewed this email as Mr. Bich “cramming the August  
27 proposal down his throat”. For him the email gave the impression that Mr. Bich was  
interested in development (he was still insisting on two lots on Lake Papineau), or, at the  
least, adding value. This was not the mindset of the Pichette group.  
[121] The Pichette group was worried that it was being played by Mr. Bich. Yet, his group  
made yet another overture to Mr. Bich on September 3:  
I spoke to Patrick briefly about your email. We are prepared to go with a 60/40 split  
IE on a $45,000,000 offer $27,000,000 would be from us and $18,000,000 would  
be from you. We would follow the boundary that Patrick identified. I might point out  
that this could be considered as a conservation servitude line and the actual  
ownership line might be different. Patrick is out of contact for the next 7-8 days and  
will confirm this arrangement on his return.61  
[122] For Mr. Bich this was acceptable as long as his line was for ownership purposes.62  
There would be no building between his ownership line and Mr. Pichette’s conservation  
Exhibit P-346.  
Exhibit P-481.  
Exhibit P-342.  
Exhibit D-412.  
Exhibit P-358.  
Exhibit P-359.  
Exhibit P-362.  
Exhibit D-382.  
line, which was slightly to the west of his proposed line. He told the Court that he advised  
Mr. Harpur of his agreement with this concept during a phone call on that date and that  
Mr. Harpur said that they were good to go, but reiterated that Mr. Pichette was travelling.  
[123] For Mr. Bich, this 60/40 split was the basis for what he believed to be the  
agreement between the parties.63 His understanding of the indication that Mr. Pichette  
would confirm the arrangement upon his return is that only the issue of the conservation  
line had to be confirmed, not the 60/40 split of the purchase price.  
[124] Mr. Harpur denies any phone call on September 3.  
[125] His understanding was that the entire arrangement was subject to Mr. Pichette’s  
approval. He underlined that the email also referred to specific fixed dollar amounts. He  
also assumed that Mr. Bich would need the approval of his partners. He asked Mr. Bich  
for a terms sheet that he never received.  
[126] Mr. Pichette was aware that Mr. Harpur would move ahead with this offer and had  
authorized him to add $2 million to the group’s capital contribution to avoid losing Lake  
Papineau. The offer was contingent on Bich’s agreement with Pichette Map #2. If Mr.  
Bich’s partners agreed, he wanted to see progress on an LOI between the two groups.  
[127] Mr. Bich communicated his understanding of the September 3 exchanges to Mr.  
Bellini verbally. He never showed Mr. Bellini the email of September 3 from Mr. Harpur or  
the map prepared by Mr. Pichette with his proposed new lines. Apparently, dollar figures  
were not discussed.  
[128] He also sent an email to Mr. Harpur in the minutes that followed Mr. Harpur’s  
proposal, the text of which reads:  
Thanks for getting back to me.  
How many house sites would you want to conserve for this?  
So that I have all of the information to give to the others.64  
[129] Mr. Harpur did not understand why Mr. Bich was still asking about building lots on  
Lake Papineau. His answer was vague, advising that the question will evolve with the  
conservation plan.65  
[130] Mr. Bich explained that he was curious and that the Bellinis were asking.  
In an email dated October 8, 2013, he refers to a gentleman’s agreement, without specifying when it  
was agreed to.  
Exhibit P-364.  
Exhibit P-381.  
[131] The supposed conclusion of an agreement on September 3 was not shared with  
Mr. MacDougall. It seems unlikely that it was shared with Mr. Ratsch either, as he did not  
react to the report from Mr. MacDougall to Oxford on September 16 that Mr. Harpur was  
prepared to do the deal with Lyme.66 Mr. Harpur calls that report premature, as the deal  
with Lyme was only finalized on September 26. (On September 26, he was still awaiting  
a formal response from Mr. Bich on the September 3 proposal.)  
[132] Then, on September 13, there was another email to Mr. Harpur where Mr. Bich  
I still need to sit down with our parties to finalize something.  
Have you figured on how many house sites you would want to conserve on your  
portion of land?67  
[133] It is perhaps significant that this was the first communication since September 3.  
[134] Mr. Harpur did not answer; he no longer wanted to do business with Mr. Bich. In  
addition, Mr. Pichette was travelling, had a heavy work schedule and was difficult to  
contact. When informed of the September 13 email, Mr. Pichette did not see any progress  
following the communication of September 3.  
[135] At the same time Mr. Bich and his attorney were meeting independently with  
Oxford’s in-house counsel to obtain independent information on the bid process.68  
[136] He was having internal conversations with his partners, including Mr. Bellini, who  
had some questions about building density, for him still an unresolved issue on  
September 13.69 For Mr. Bellini the common understanding was that any development  
would be low density, but the meaning of low density for him was not the same  
understanding as the Pichette group had. They would have considered very minimal  
development as a last resort.  
[137] Mr. Bich was also trying to keep Mr. Desmarais in the loop. On September 13, he  
emailed him pointing out that “We are very close to the time when we need to make  
[138] And, he said this in an email of September 14:  
Exhibit P-441.  
Exhibit P-406.  
Exhibit P-441.  
Exhibit P-409.  
Exhibit P-410.  
Spoke to Oxford yesterday and most of my small issues with the property have  
been cleared. The question regardless is will our bid (if we make one) be the most  
attractive. Would have liked to have more time. 71  
[139] On September 17 he was looking for clear direction from Dr. Bellini before moving  
forward.72 And, on September 20, he confided to Mr. Desmarais that they might not move  
forward if there are insufficient partners for the new hunting venture.73 The latter wanted  
a commitment from Dr. Bellini on the hunting venture to move forward, going so far as to  
say that if Dr. Bellini did not commit: “we are not in”.74 He was obviously referring to the  
Kenauk purchase, as he referred to Dr. Bellini losing his deal.  
[140] Then, on September 23 Mr. Bich asked Mr. Desmarais if he had spoken to Dr.  
Bellini to see if he was in, reiterating that they would only move forward if there were more  
owners in LWE.75  
[141] Even so, Mr. Bich maintains that there was an agreement to participate in a 60/40  
bid. Yet, it appears that the alleged agreement was falling apart. Mr. Bich acknowledged  
the need for a back-up plan76 and, apparently, the Bellini’s were interested in going in  
50/50 with Mr. Bich and Mr. Desmarais.  
[142] On September 15, Mr. Bich tried to contact Mr. Harpur by email about how to put  
a partnership agreement together and received no response.77 Mr. Harpur admits that he  
was trying to stall by this point. He was also talking to lawyers from Stikeman Elliott about  
ways to move forward without telling Mr. Bich.78 He was looking for ways to do the deal  
without Mr. Bich and working with a timber company was a possibility. He also needed to  
ensure that Mr. Pichette was on the same page. The latter was very busy and this added  
to the delay in getting back to Mr. Bich.  
[143] There were discussions with Ontario Log at this point, albeit of a short duration.  
[144] Mr. Harpur spoke to Mr. Bich on September 19 and advised him that the 60/40  
split was off the table as the Pichette group could not afford it. Mr. Harpur also asked if  
the Bich group would accept only 10,000 acres, a non-starter for them.  
[145] Mr. Bich spoke to Mr. Bellini and refers to going backwards with the other parties.79  
Despite this, Mr. Bellini believes that the exclusivity agreement was still in place.  
Exhibit D-145.  
Exhibit P-457.  
Exhibit P-473.  
Exhibit D-149.  
Exhibit D-283.  
Exhibit P-510.  
Exhibit P-421.  
Exhibit P-427a.  
Exhibit P-467.  
[146] At this time, however, Mr. Harpur was working on a deal with other investors,  
including Lyme, Dominic Monaco and Michael Wilson.80 He did not advise Mr. Bich of  
these discussions.  
[147] Finally, during a call on September 22, Messrs. Pichette and Harpur advised Mr.  
Bich that they were not prepared to work with him anymore and that he should make his  
own offer. That was the last time Mr. Harpur spoke to Mr. Bich. It was Mr. Pichette that  
lead the call, as Mr. Harpur was still doing some deer business with LWE.  
[148] Mr. Bich and Mr. Pichette disagree about what was said around the possibility of  
land for Mr. Bich during this call. Mr. Pichette indicated that there might be an option for  
Mr. Bich to buy a parcel from his group if it was successful; this was before the  
composition of the Pichette group was fully firmed-up. There was certainly no promise  
and it was made clear that Mr. Pichette did not want to sell other land to any of Mr. Bich’s  
partners. There was no discussion of Lake Maholey during this conversation.  
[149] From the conversation, Mr. Bich understood that Mr. Pichette would bid with some  
friends and a bank loan and that it would not be a problem for him to get the land that he  
wanted in the Western sector of the property. However, Lake Maholey would not go to  
the Bellini family. Mr. Bich was upset and felt that Mr. Harpur had not been honest. For  
the future, he wanted to deal solely with Mr. Pichette.81  
[150] Later in the day Mr. Pichette confirmed that his group would keep most of the land  
and might do a carve-out for Mr. Bich.82  
[151] As to the Pichette’s group, in early September, Michael Wilson, was introduced to  
it by Mr. Ratsch. Following a call with Doug Harpur on September 12 he confirmed his  
interest if he was included upfront and the price was reasonable. He told Mr. Harpur the  
portion that he was interested in and that he was prepared to make a financial  
commitment of between 5 and 10 million dollars. Mr. Wilson described the call as “high-  
[152] On September 25 Mr. Wilson visited the property with Mr. Harpur. He also wanted  
to get a feel for what kind of a partner Mr. Harpur would be so he brought his 5 year old  
granddaughter along for the visit. It was at this juncture that he felt comfortable enough  
to be part of the acquisition group with Mr. Harpur and Mr. Pichette, subject to the right  
terms and conditions.  
[153] Mr. Pichette also approached Mr. Monaco in mid-September. He and his wife met  
Mr. and Mrs. Harpur for dinner. The rapport was good and discussions moved forward  
Exhibit P-492.  
Exhibit P-502.  
Exhibit P-496.  
and a further meeting took place on September 19, this time with a land-use planner, Mr.  
Randall Arendt. Mr. Monaco was very pleased with the vision for the property.  
[154] Mr. Monaco did not need to visit. He knew the property well.  
[155] Mr. Wilson did not know Mr. Bich. Nor did Mr. Monaco, but he was aware of his  
plan to fence off a portion of the property for commercial deer hunting and was unhappy  
about this potential use of the land. Fencing is also a non-starter for the NCC.  
[156] Mr. Wilson and Mr. Monaco only became aware of Lyme’s role very late in the  
process.83 Both Mr. Wilson and Mr. Monaco described it as being to provide a bridge in  
the capital needed to close the transaction. They understood that the NCC would  
ultimately have an important role in the management of the Kenauk lands, including the  
parcel acquired by Lyme, which the NCC had an option on.84  
[157] As to Lyme’s (and the NCC’s) participation, Mr. Harpur pursued the discussions in  
September, more seriously after the Pichette group suggested that the Bich group make  
its own offer. The mechanics of Lyme’s participation were only finalized after the bid  
deadline and the offer to Oxford.  
[158] Mr. Bich did not give up and continued to have discussions with Mr. Pichette, but  
there was no meeting of the minds. On September 24 Mr. Pichette went to the point of  
asking Mr. Bich for two options of what his group wanted, one with Lake Maholey and  
one without. He did not provide an option without Lake Maholey, as this was the area that  
the Bellinis wanted.85  
[159] Mr. Bich’s group did not put its own bid together. There had been a call on  
September 23 with the principals of the Bellini family where it indicated its preparedness  
to put up $25 million, but the Bich/Desmarais’ contribution remained at $10 million.  
[160] On September 27 the Bich group submitted a letter of interest that refers to the  
interest of LWE and other associates.86 It wanted to position itself for a possible second  
round of bidding:  
We understand that the Vendor has advised that, at this time, it will only entertain  
offers under its bid process that it receives prior to 4 p.m. Eastern Time today,  
September 27, 2013.  
The undersigned and the other members of its group remain very interested in the  
Property, and believe that we would be well placed to complete an acquisition that,  
from every perspective, including the Vendor's interests, is attractive as to our  
Exhibit P-492.  
It is also worth noting that Mr. Monaco and Mr. Wilson only became aware of each other’s participation  
a few days before the bid deadline.  
Exhibit P-523.  
Exhibit D-386.  
demonstrated capacity to honour the financial commitments, and as to price,  
conditions, and proposed future use of this extraordinarily important conservation  
and recreational area.  
The purpose of this letter is to advise you that in light of its arrangements with other  
possible bidders in the current sale process undertaken by the Vendor, it does not  
propose to submit an offer prior to the bid deadline.  
The undersigned may, however, submit an offer at a subsequent date in the event  
that for whatever reason, the arrangements with other possible bidders are not  
completed, or, if, for whatever reason, such possible bidders withdraw from the  
sale process.  
[161] Even with this letter having been sent, Mr. Bich reached out again to Mr. Pichette  
the next day.87 This prompted a call from the latter where he underlined (amongst other  
things) that with his group’s offer having been made his partners would have to authorize  
him to speak to Mr. Bich. Mr. Pichette underlined the role of the NCC and how it might  
affect potential dealings with Mr. Bich.  
[162] On September 29 there was further discussion of a post bid offer, but Mr. Bich and  
Mr. Desmarais were still only prepared to commit $10 million between them and Mr. Bich  
felt that the Bellini’s would only contribute up to $25 million.88  
[163] On September 30 the Bich group submitted a more formal letter of intent at a price  
of $50 million, although, it gave little information on the financing of the offer.89  
[164] This was to no avail, as in early October the brokers advised Mr. Bich that Oxford  
would be working with one bidder. Mr. Bich reached out to Mr. Pichette again trying to  
salvage his part of the property.90  
[165] Mr. Bich sent an email to Mr. Pichette on October 1 looking for feedback and  
underlining that his group had the capital to buy the whole property.91  
[166] However, to use the words of Mr. Bellini, on October 2, the Bich group was still  
scrambling for capital and even with an anticipated $5 million from an acquaintance it was  
$10 million short.92 This is also confirmed by Mr. Bich’s email of the same day where he  
pitched a development scenario to Mr. Bellini, almost exactly like the one put forward on  
July 2, 2013, “so that we can find capital to come in with us”.93  
Exhibit P-593.  
Exhibit P-597; see also exhibit D-50, an email exchange the next day.  
Exhibit P-613.  
Exhibit P-661.  
Exhibit P-631.  
Exhibit P-651; see also exhibit D-363, where Mr. Bellini wants to approach a developer in the UK.  
Exhibit D-186.  
[167] The Pichette group was not scrambling, having submitted a formal letter of intent  
with an offer to purchase for $47.5 million on September 27, 2013. It was amended and  
a new letter was submitted on October 2, with an offer price of $50,500,000.94  
[168] The objectives of the Pichette group were also clearly set out in its introduction  
We have had many conversations with many different individuals over the last  
several months about possible partnership arrangements and have settled on this  
particular group for the primary reason that we are all committed to the long term  
conservation of this unique property and have the financial capability and expertise  
to achieve this Although many other individuals of means have expressed an  
interest in working with us the members of this group are unique in sharing a  
common view as to the future of this property remaining substantially the same as  
it is now and securing that future by entering into an enduring relationship with the  
Nature Conservancy Canada NCC as a partner In order to implement a solid  
conservation plan we have retained the services of Mr. Randall Arendt http www. an internationally acclaimed land use planner.  
He will coordinate and consolidate the individual aspirations of the partners and  
NCC into a comprehensive land use plan that will result in what would appear to  
be the largest private land conservation project in Canadian history Your  
contribution by selecting us as the preferred purchaser would of course be  
recognized I have known and worked with Mr. Arendt for twenty years and when  
the proposed partners agreed to work together I did not hesitate to invite Mr. Arendt  
to spend four days on the property last week We all look forward to working  
together on this project.95  
[169] The conservation bent of the group remains in place today. LWE  
[170] Perhaps LWE was the elephant in the room. Even prior to the Bich group becoming  
serious about part of Kenauk, in December 2012 Mr. Bich was pitching Mr. Desmarais  
with an idea of turning it into a private equity club with 13 members at $2 million each,  
which would have allowed them to recoup their investment, make some money on it and  
finance the purchase of some new land and the building of infrastructure. Notably, he  
pointed out to Mr. Desmarais that “[N]either of us are really wanting to put a bunch more  
money into this venture…”96  
[171] The discussion continued in January:  
Exhibit D-45; see also exhibit D-46.  
Exhibit P-579a.  
Exhibit P-76.  
12 equity memberships x 2.5M = 30M  
15M would be to buy our company so we would get all our loans back and  
approximately double our equity  
15M for new land at Kenauk, fencing, high end lodge and other improvements:  
guide quarters, managers house, shop, butcher facility, equipment etc.  
[172] The concept evolved, but it became clear that Mr. Desmarais continued to want  
members for the hunting venture at $5 million each to recoup some of the investment that  
he and Mr. Bich had made in LWE and to use some of the money for the Kenauk  
purchase. On February 1 he went as far as saying that he did not want Mr. Bich to acquire  
the land until he found the required members as he could not afford to put up the money  
needed for the land.97  
[173] Another element of Mr. Bich’s February 1 discourse around LWE, but in respect of  
the land purchase, bears mention:  
As for the land, I have different ideas and need to speak to the other people  
interested to see if they agree.  
I would obviously never do anything without discussing it with you.98  
(The Court’s underlining)  
[174] The discussion around members continued. On July 7 Mr. Bich suggested that  
they move forward with three. Mr. Desmarais wanted four.99  
[175] Mr. Bich, clearly charged with finding members, had no success. The search for  
members or a club concept100 continued to be a recurring part of the discussion between  
Mr. Desmarais and Mr. Bich throughout the relevant time period.101  
[176] It also seems that Mr. Bich and Mr. Desmarais viewed this scenario as a way of  
potentially financing the purchase of the land that they wanted, without the need to invest  
capital of their own. At the very least, this might have been a way for each to limit their  
capital contribution to $5 million, a number that they never deviated from.  
[177] The Bich group’s idea of financing the project in this way was not disclosed to the  
Pichette group at any time during their discussions.  
Exhibit P-98.  
Exhibit P-191.  
Exhibit D-327.  
Exhibits D-14, D-263, P-97, P-170 and P-591 are examples.  
[178] Nor was this element of the Bich/Desmarais partnership shared with the Bellini  
family. Mr. Bellini never understood that the Bich/Desmarais contribution to the purchase  
was contingent on LWE securing hunting memberships.  
[179] In fact, as of September 28 Mr. Desmarais had found two members at $5 million  
each, which apparently might have allowed the Bich group to make an offer if there was  
a second round of bidding.102 But, as we have seen, there was no second round.  
2.3 Legal principles  
[180] In this most important part of the legal syllogism proposed by Plaintiffs, the  
principals of contract will need to be applied to determine both whether there was an  
exclusivity agreement or an agreement to make a joint bid.  
[181] The basic article in the analysis of both agreements is article 1385 C.C.Q.:  
1385. A contract is formed by the sole 1385. Le contrat se forme par le seul  
exchange of consents between persons échange de consentement entre des  
having capacity to contract, unless, in personnes capables de contracter, à moins  
addition, the law requires a particular form que la loi n’exige, en outre, le respect d’une  
to be respected as a necessary condition forme particulière comme condition  
of its formation, or unless the parties nécessaire à sa formation, ou que les  
subject the formation of the contract to a parties n’assujettissent la formation du  
solemn form.  
contrat à une forme solennelle.  
It is also of the essence of a contract that Il est aussi de son essence qu’il ait une  
it have a cause and an object. cause et un objet.  
[182] Plaintiffs argue that there need not be a writing for a contract to be formed and  
they are correct. However, there still needs to be a meeting of the minds on the essential  
elements of the contract.  
[183] Plaintiffs further put forward that the party who enters into a contractual negotiation  
must intend to conclude the contract and must act in good faith:  
Par ailleurs, la personne qui s'engage dans un processus de négociation doit avoir  
la ferme intention de conclure le contrat projeté. Il est contraire à l'obligation de  
bonne foi d'entrer dans les négociations d'un contrat sans avoir l'intention de le  
signer, mais dans le seul but de nuire à l'autre partie ou d'obtenir des  
renseignements privilégiés. Les deux parties doivent agir dans un esprit de  
coopération et se retirer des négociations dès qu'elles perdent l'intérêt de passer  
ledit contrat.  
Exhibit D-155.  
Le droit civil reconnaît que la règle selon laquelle les parties doivent négocier de  
bonne foi comporte deux obligations, soit l'interdiction de s'approprier des  
renseignements confidentiels échangés lors des pourparlers et l'obligation de  
mettre fin aux négociations dès qu'il paraît certain qu'elles sont vouées à l'échec.103  
[184] For Plaintiffs, and a corner stone of their argument, is that the essential conditions  
of the agreement to submit a joint bid were present on September 3. This argument flows  
from article 1388 C.C.Q.:  
1388. An offer to contract is a proposal 1388. Est une offre de contracter, la  
which contains all the essential elements proposition qui comporte tous les éléments  
of the proposed contract and in which the essentiels du contrat envisagé et qui  
offeror signifies his willingness to be indique la volonté de son auteur d’être lié  
bound if it is accepted.  
en cas d’acceptation.  
[185] Defendants strongly dispute that the essential elements were present.  
[186] A contract might still be formed even if “and even though the parties have agreed  
to reserve agreement as to certain secondary elements”.104  
[187] Plaintiffs’ next argument is that at the very least, there was a bilateral promise to  
contract, as provided for in article 1396 C.C.Q.:  
1396. An offer to contract made to a 1396. L’offre de contracter, faite à une  
determinate person constitutes a promise personne déterminée, constitue une  
to enter into the proposed contract from promesse de conclure le contrat envisagé,  
the moment that the offeree clearly dès lors que le destinataire manifeste  
indicates to the offeror that he intends to clairement à l’offrant son intention de  
consider the offer and reply to it within a prendre l’offre en considération et d’y  
reasonable time or within the time stated répondre dans un délai raisonnable ou  
dans celui dont elle est assortie.  
A mere promise is not equivalent to the La promesse, à elle seule, n’équivaut pas  
proposed contract; however, where the au contrat envisagé; cependant, lorsque le  
beneficiary of the promise accepts the bénéficiaire de la promesse l’accepte ou  
promise or takes up his option, both he lève l’option à lui consentie, il s’oblige  
and the promisor are bound to enter into alors, de même que le promettant, à  
the contract, unless the beneficiary conclure le contrat, à moins qu’il ne décide  
decides to enter into the contract de le conclure immédiatement.  
Vincent Karim, “La règle de la bonne foi prévue dans l’article 1375 du Code civil du Québec : sa portée  
et les sanctions qui en découlent", 41 :3 (2000) p. 453.  
Article 1387 C.C.Q.  
2.4 Discussion  
2.4.1 Credibility and corroboration  
[188] There are two questions around the administration of the evidence that bear  
mention at the outset. The first is corroboration, which the Court will consider as it comes  
up in the analysis of the evidence.  
[189] The other matter is the credibility of the various witnesses. The two in respect of  
whom this has the greatest bearing are Mr. Bich and Mr. Harpur.  
[190] This said, this is not a matter that will ultimately be decided solely on the basis of  
the credibility of the witnesses, although the Court must consider it in its evaluation of the  
evidence. The discussions which give rise to possible issues of contradiction all occurred  
in 2013, some eight years before the trial, so some lapses of memory are understandable.  
Happily, many of the discussions were followed up by contemporaneous emails, which  
are perhaps a more accurate source of information about what was actually happening  
at the time.  
[191] Mr. Harpur’s memory was far from perfect and there were some discrepancies with  
his pretrial examination. One element is weather Mr. Pichette was with Mr. Harpur for the  
call on August 22 or on the phone. Another is whether the Pichette group made an offer  
to the Bich group that it would buy Lake Papineau alone if that could be negotiated with  
[192] To the extent there are contradictions, the Court does not view them as material.  
It is the content of the August 22 call that matters, not the physical whereabouts of the  
[193] And, while the parties do not have the same view of the content, the idea of  
exclusivity between the parties is contradicted by the emails from Mr. Bich himself.  
Moreover, the other most important part of that discussion was the amount that the  
Pichette group was prepared to pay and the version of Mr. Harpur and Mr. Pichette is  
clearly more probable than Mr. Bich’s version.  
[194] As to the purchase of Papineau, it is clear that this is what the Pichette group was  
looking at from the outset. The suggested contradiction is immaterial.  
[195] Another contradiction is whether Mr. Harpur spoke to Mr. Bich on September 3.  
Whether he did or not does not change the fact that Mr. Bich was still trying to get part of  
Lake Papineau even after this alleged agreement and this despite knowing that Mr.  
Pichette wanted all of the lake for his group.  
[196] There was also a paucity of clarity in Mr. Harpurs recollection of phone  
conversations between him and Mr. Pichette during the timeframe between September  
15 and 19. Again here, the Court does not view the lack of clarity as material. It is crystal  
clear that Mr. Harpur was trying to stall the discussions with Mr. Bich and his poor recall  
around the discussions with Mr. Pichette during this time period does not change this.  
This said, the freezing out of Mr. Bich at that juncture may well be material, a question  
that the Court will discuss below.  
[197] Nor could Mr. Harpur recall when he spoke to Mr. Wilson. Based on emails, it  
appears to have been around September 16,105 but in any event this was already at the  
time contact between Mr. Bich and Mr. Harpur had essentially ended. We also know that  
Mr. Wilson became interested in part of the project around the same time. Given the  
Court’s conclusion that there was no exclusivity agreement, the precise moment of the  
discussions with Mr. Wilson is not material in any event.  
[198] Mr. Harpur’s description of when he knew about the Bellini’s involvement also  
gives pause. He remembers seeing the name in some of the emails he received from Mr.  
Bich, but did not know the background of the family. It is also not clear what he knew  
about the Bellini’s proposed financial contribution, but this information does not appear to  
have been shared by Mr. Bich. He was aware of the areas of Kenauk that interested them.  
In any event, any discrepancy around Mr. Harpur’s knowledge of the Bellini’s involvement  
in inconsequential, because if there was an agreement on September 3, it was with Mr.  
Bich and Mr. Bich alone.  
[199] What about the credibility of Mr. Bich?  
[200] Certainly, compared to Mr. Harpur, there were fewer questions to which he had no  
recall of the event, but his testimony was largely document assisted with various emails  
and documents being shown to him as he testified and before he answered.  
[201] The Court is also troubled by his demeanour throughout the period that he was  
interested in the land. His stories were often different depending who he was speaking  
to; some differences between what he was telling Mr. Bellini and what he was saying to  
Mr. Desmarais; and big ones between what he was telling his partners and what he was  
telling Mr. Harpur or Mr. Pichette.  
[202] Respectfully, there were also moments in his testimony where, he tried to pull the  
wool over the Court’s eyes. He continually stated that his interest in Kenauk was not  
development, whereas, from the outset of the discussions with his partners development  
was seen as a way of financing the purchase. As the evidence was administered, it  
became crystal clear that conservation became Mr. Bich’s path of convenience only when  
it became evident that the Pichette group would not allow development on Lake  
Papineau. So to some degree, he tried the same double discourse on the Court as he  
had used throughout his attempt to buy the land.  
[203] Now some of the inconsistencies that give pause:  
Exhibit P-440.  
[204] Paragraph 54 of Plaintiffs’ Re-amended Originating Application provides an  
inaccurate description of the discussions prior August 13:  
54. From July to the end of August 2013, Plaintiffs worked in confidence and in  
good faith with the Defendants in pursuing discussions to submit a joint bid for the  
purchase of the Property, and never during such time did Defendants Pichette or  
Harpur give any indication that negotiations were not evolving in a positive way or  
that they were considering alternate plans with other investors;  
[205] This affirmation was maintained at trial by Mr. Bich, despite the fact that there was  
no substantive contact between the parties from the beginning of July until the August 13  
meeting, let alone discussion of a joint bid. Even after the meeting, negotiations seems a  
strong word, as the evidence really demonstrates, at best, different exchanges of ideas.  
[206] The versions he provided of the August 13 meeting are also important, as Plaintiffs  
have made what happened there seminal to their case. First, on the lines for the property  
of each partner, here is what he said on May 12, 2016 in his pre-trial examination:  
[…] My question to you is, what level of specificity was discussed with respect to  
the allocation of the property? Was it discussed specifically who would get what in  
terms of property at Heenan Blaikie?  
A- Yes, we went over the maps with each party’s main interest property and what  
the lines could look like.  
Q- Could look like?  
A- Yes.106  
(The Court’s underlining)  
[207] Mr. Bich says a bit later that they put lines on the map with their fingers but  
acknowledges that there was no agreement on territory:  
Q- We agree there was no agreement made at that meeting, right?  
A- On the exact specific line?  
Q- Yes.  
A- No.107  
[208] He came back to this later to state that the line was fairly well set.108  
May 12, 2016 pre-trial examination, page 73.  
Ibid. page 77.  
Ibid. page 112.  
[209] Finally, in his testimony, he denied putting lines on the map the first specific map  
having been received on August 19.  
[210] As to the discussion around land values at the Heenan meeting, here is what he  
Q- What was the discussion regarding the capital investment?  
A- The discussion was speaking about the difference in land values based on the  
assets on the property and what each party would have to contribute for those  
areas that we wanted.  
Q- And how did the meeting conclude on that aspect?  
A- That we would be working together to reach an agreement.  
Q- So, again, on the capital contribution, an agreement was not reached at the  
A- No.109  
[211] This testimony became much more detailed at trial, where in his direct testimony  
Bich gave the following account what he said at the Heenan meeting:  
The Bellinis were prepared to contribute $10 million for the Lake Maholey  
His group was prepared to contribute $10 million for his area of interest.  
His group would contribute 40% of the capital and the Pichette group would  
contribute 60% of the capital, specifically discussing a capital contribution  
of $30M expected from the Defendants, given that there would have been  
a discussion to the effect that Lake Papineau was the main asset and most  
valuable asset.  
He would have presented this 60/40 split as a “fair breakdown”, but the  
Defendants would have countered by specifically mentioning that they were  
closer to a 50/50 split.  
[212] In cross-examination, Mr. Bich was more nuanced when pressed on some of his  
answers. He talked about discussing $45 million as a good entry price and reiterated  
raising his 60/40 position and the Pichette group’s reaction of a 50/50 split with all of Lake  
Papineau. As to whether dollar amounts of capital contributions were actually discussed  
at this introductory meeting, Mr. Bich had a different version from his direct testimony.  
Ibid. pages 7778.  
While underlining that only percentages were discussed, he mentioned the price for the  
property at $45 or $50 million, but denied saying that his group would contribute $20  
million and that the Pichette group should pay $30 million.  
[213] What strikes the Court is that at many moments during his testimony Mr. Bich said  
that he only spoke in percentages and not dollars, when the documentary evidence  
clearly shows the contrary.  
[214] Perhaps more curious was his communication of the day following the Heenan  
meeting, where Mr. Bich thanked everyone for the meeting and said that he would work  
on the numbers and concept a bit more;110 This is hardly confirmation of the specificity  
that he now attributes to the meeting.  
[215] As to his affirmation that the interest of the Bellinis was disclosed his email of  
August 16 belies this:  
We and our friends were initially looking at putting $5,000,000 each into the deal  
and decided to increase to $10M as we felt there were more chances to get this  
done if we did.111  
Why continue to talk of friends, if the Bellini name had been disclosed?  
[216] In the same email chain there was a part addressed to Mtre Heenan:  
Do you think any of the current owners would be interested in buying more acres  
around their house which could help raise so more capital?  
[217] Why would Mr. Bich care if he had been so specific about his interest and the  
capital contributions of each group at the Heenan meeting?  
[218] Mr. Bich’s testimony around a call between him and Mr. Harpur during the morning  
of August 19 is also not credible. During his direct testimony, Mr. Bich testified that Mr.  
Harpur would have told him during that call “we are still at 50/50” and that he would have  
“reworked the map”, which does not seem possible, given that the Defendants had just  
agreed between themselves the previous evening on the precise area of land they were  
seeking, represented by the Pichette map #1 which Mr. Harpur submitted to Mr. Bich for  
the first time later that morning at 11:53 AM.112  
[219] In cross-examination, he was further questioned about that call and first asked  
counsel to see the “document given” and have time to review same before answering any  
question about his recollection of it. The Court then highlighted the fact that counsel had  
Exhibit P-242.  
Exhibit P-245.  
Exhibit P-247.  
not referred Bich to any document, which eventually led to him stating that the call was  
not important.  
[220] August 19 provided some other contradictions. During his direct testimony at trial,  
Bich presented the Pichette map #1 as allegedly being “a reply to my 50/50 proposal”.  
This is not the case Mr. Bich’s 50/50 scenario was submitted to the Defendants during  
the evening of August 19, 2013 at 9:14 PM,113 only after map #1 had been communicated.  
[221] The 50/50 scenario of August 19 also gives rise to another major concern with Mr.  
Bich’s testimony. Did he have the authority to make it? He said that he must have received  
the okay from Mr. Bellini. The Court thinks not. On an initial offer of $45 million, this would  
have meant a $22.5 million contribution from the Bich group. Mr. Bich would have had to  
discuss an increase in their capital contribution to $11.25 million with the Bellinis given  
the formality of their July 19 LOI. There is no writing where they committed to an extra  
$1.25 million before August 19. As to Mr. Desmarais there is also no writing where he  
indicated a willingness to contribute more than $5 million, and on August 19 (and  
thereafter) his participation was contingent on new memberships in LWE.  
[222] On this issue, there clearly was no call with Mr. Bellini on August 19, as he had  
fallen asleep.114  
[223] Another email to Mr. Desmarais on August 20 raises questions. Mr. Bich asked his  
friend if he knew anyone who might have capital to assist in the purchase.115 In cross-  
examination he seemed to say that he was looking for capital to assist the Defendants  
with their part of the purchase, which does not make sense.  
[224] His email to Mr. Desmarais on August 23 also gives pause about the integrity of  
his testimony. He raises as his idea the payment of $25 million by the Pichette group  
when everything points to the Mr. Pichette having raised this himself in the call of August  
22. Mr. Bich also floats the idea of a forestry plan, having previously told Mr. Harpur that  
he was opposed to forestry. Getting new partners for LWE and using the membership  
fees to buy the land was also reiterated, although Mr. Harpur and Mr. Pichette had no  
[225] In short, Mr. Bich’s proposed scenario to his partner was very different from the  
one that had been discussed with Mr. Pichette and Mr. Harpur on August 22!  
[226] Again at the risk of repetition, the conversations that Mr. Bich was having with his  
partners were also at times different than the ones that he was having with the Pichette  
group. An example is found in the exchanges of August 27. With Mr. Bellini he spoke of  
Exhibit P-269.  
Exhibit P-261.  
Exhibit P-271.  
Exhibit D-24.  
two 250 acre lots on Lake Papineau in a prime location,117 whereas with Mr. Pichette, the  
size and the location were to be agreed upon.118  
[227] Even more puzzling is the email that Mr. Bich sent to Mr. Bellini the next day where  
he reported that the Pichette group were still holding their ground on land and capital.119  
That was clearly not true, as on August 22 Mr. Pichette had upped their contribution to  
$25 million. He also testified that the representation to his partner was made in light of  
Pichette Map #2, when in fact he had not received it yet.  
[228] One of the most glaring inconsistencies in Mr. Bich’s position is found at  
paragraphs 75 and following of the Re-amended Introductory Application to Institute  
75. Between September 3 and September 22, 2013, Bich attempted to  
communicate with Pichette and Harpur to push forward their apparent joint bid  
agreement and its implementation;  
79. It is in that context that on September 22, 2013, having been pursued and  
tracked down by Plaintiffs, five days before the bid deadline, that Pichette informed  
Bich of the following:  
a) Pichette and Harpur no longer intended to respect their agreement  
as stated at paragraph 74 of the present Motion to submit a joint bid  
with Plaintiffs for the purchase of the Property;  
b) Defendant Pichette intended to submit a single bid for the purchase  
of the Kenauk property with the help of "a couple of friends and a bank  
loan"; and  
c) that despite this alternate purchase arrangement, Pichette would  
turn over to Plaintiffs the portions of the Property Plaintiffs were  
interested in, should Defendants be successful in getting their bid  
accepted by Oxford;  
[229] These affirmations are misleading as the evidence is that Mr. Bich did not try to  
contact the Pichette group between the end of the day on September 3 and September  
13 and he certainly did not pursue them and track them down, at least until September  
13, at the earliest. There was also no agreement by Mr. Pichette to turn property over to  
Plaintiffs. And yet, when offered the opportunity to clarify these allegations at trial, Mr.  
Exhibit P-322.  
Exhibit P-320.  
Exhibit D-27.  
Bich refused to do so.120 Mr. Bellini only agreed that paragraph 79 c) was untrue in cross-  
[230] The exchange with Will Griffiths, the executive assistant of HRH the Crown Prince  
of Bahrain, on September 16 in relation the LWE memberships is another troubling  
example of a lack of forthrightness. When asked who the other LWE members might be,  
Mr. Bich referred to Dr. Bellini,121 who had yet to commit to a membership and never did.  
[231] His testimony about disclosure to the Pichette group of the equity club concept for  
LWE was, at best, disingenuous. He says that he disclosed the equity club concept, but  
not its role in the financing of the Kenauk purchase. If he did disclose the club concept,  
which the Court does not believe, there would have been no reason to keep the financing  
aspect quiet, save for the reality that he had not yet found the members and that Mr.  
Desmarais had always maintained that he did not want to go forward without them.  
[232] And, the disingenuousness of Mr. Bich continued right up to the bid deadline. On  
September 27 he wrote to Mr. Pichette stating that he was “getting pushed by the brokers  
to submit an offer of our own today but I said that I would not do that since I believe it  
would be a breach of our good faith ongoing discussions.”122 Of course, by this time there  
were no ongoing discussions, save for the opening that Mr. Pichette had given to Mr. Bich  
to describe a small area of land that he might be interested in, to which Mr. Bich’s answers  
were unresponsive. Moreover, Mr. Bich did not have the required capital as Mr.  
Desmarais’ contribution was contingent on the sale of LWE memberships.  
[233] To conclude, the Court views the version of the events, as described by Mr.  
Pichette and Mr. Harpur, as being generally more credible than Mr. Bich’s version.  
2.4.2 The Alleged Exclusivity Agreement  
[234] As the Court has said, it concludes that there was no exclusivity agreement  
entered into on August 22, 2013.  
[235] The Court cannot rely on a written agreement; there is not one. This makes the  
analysis whether there is the alleged exclusivity agreement challenging, as the judicial  
interpretation of exclusivity clauses is that they are to be interpreted narrowly. Justice  
Mayer considered an exclusivity clause in a lease context in Jean bleu inc. c. Boutique  
Le Pentagone inc.:  
[78] Thirdly, there is extensive doctrine and jurisprudence that teaches us that  
exclusivity clauses are to be construed restrictively since they are provisions that  
The same can be said for Mr. Bellini, Certainly no one on the Picchio side had attempted to track down  
Mr. Pichette. In addition, in the September 22 conversation, there was no discussion of a post-bid  
transfer of Lake Maholey.  
Exhibit P-436.  
Exhibit P-582.  
limit free trade and competition. They are an exception to the general rule favouring  
the free use of property.  
[79] Finally, in order to be enforceable, an obligation must be determinate or  
determinable. To ensure enforceability, an exclusivity clause should be narrow,  
precise, clear, concise and restrictive.123  
[236] These principles would also apply here and given that there is no writing, it is hard  
to find a precise agreement.  
[237] The Court can only rely on the testimony of three people, Mr. Bich, Mr. Pichette  
and Mr. Harpur. The latter two are clear in their testimony that there was no such  
agreement. Mr. Pichette was eloquent. The August 22 call was an “early inning”  
discussion; the parties were not even close to an exclusivity agreement. Yet to his credit,  
he acknowledged that the August 22 discussion did provide a framework of a potential  
deal to move forward with and while the details of what was discussed on that day were  
being perfected there was a moral obligation to work only with Mr. Bich on the potential  
[238] For Mr. Bich there was exclusivity.  
[239] However, the Court prefers the testimony of Mr. Harpur and Mr. Pichette on the  
question of the exclusivity agreement. A pivotal detail of that call escapes the recollection  
of Mr. Bich, namely the additional $5 million that the Pichette group was prepared to  
commit. Both Mr. Harpur and Mr. Pichette had a specific recollection of the discussion of  
the capital contributions of each party on a $45 million offer and on how Mr. Pichette  
increased his group’s contribution to $25 million, on the fly and without consulting with  
Mr. Harpur in advance.  
[240] The subsequent email of Mr. Harpur asking to speak to Mr. McQuat provides  
confirmation of the increased capital contribution of the Pichette group.124  
[241] Moreover, in a contemporaneous email to Mr. Desmarais, Mr. Bich talks about a  
$25 million contribution from the Pichette group.125 His testimony that no increase in the  
Pichette group’s capital contribution occurred during that call is simply not credible and  
this taints his testimony on the supposed exclusivity agreement.  
[242] In addition, his conduct and written communications following that call belie the  
existence of an exclusivity agreement.  
2011 QCCS 782, upheld in appeal 2011 QCCA 1083.  
Exhibit P-303.  
Exhibit D-24.  
[243] He did not discuss same with his partners, Mr. Desmarais and Mr. Bellini. The  
alleged agreement is not even mentioned in contemporaneous emails to them.126  
[244] His follow-up email to Mr. Pichette and Mr. Harpur is not illustrative the words of  
someone who believed that he had just concluded an exclusivity agreement. The most  
important line of that email is the following: “Based on good faith, we are not pursuing  
discussions with other parties (such as developers) who could be interested in those parts  
of the property that are not part of our own plans,…”127 Tellingly the decision not to discuss  
with others was to show good faith, not because of an agreement. This was exactly the  
same view that Mr. Pichette had! Yet curiously, this is the email that Plaintiffs put forward  
as confirming the exclusivity agreement.  
[245] Mr. Bich’s draft letter of August 25128 shown to Mr. Desmarais referring to “looking  
at being part of a groupis hardly a ringing confirmation of an existing exclusivity  
agreement with the Pichette group.  
[246] As the Court has said, he did not tell the brokers about exclusivity.  
[247] Finally, his subsequent conduct in September removes any doubt. On September  
21 he asked Mark Smith if he knew of investors for the main lake.129  
[248] On the same day, he wondered if Mr. Desmarais might put him in touch with one  
Ned Goodman, a potential investor for Lake Papineau.130  
[249] Then, on September 23, Mr. Bich wrote the following to Me Heenan:  
I had a call with Patrick and Doug yesterday.  
I am really not comfortable with what is going on.  
Out of respect to Patrick I did not look at other potential parties so I do not have a  
backup plan.131  
(The Court’s underlining)  
[250] It was out of respect for Mr. Pichette that he did not look for other partners, not  
because of an exclusivity agreement!  
[251] Mr. Bellini’s testimony does not assist Mr. Bich. On this issue, it was vague at best  
and he does not remember Mr. Bich using words leading to the idea that there was an  
Exhibits D-24 and P-292.  
Exhibit P-305.  
Exhibit P-309.  
Exhibit D-35.  
Exhibit P-483.  
Exhibit P-508.  
agreement in principle on exclusivity. And, shortly after the alleged agreement, Mr. Bellini  
was prepared to look for other partners.  
[252] In addition, did Mr. Bich even have the ability to agree to exclusivity? One can  
conclude from his email to Mr. Pichette and Mr. Harpur of August 27, 2013 at 10:57  
A.M.132 that it seems unlikely that he had discussed the possibility of exclusivity with his  
partners prior to August 22. Two days later he was discussing the many moving parts of  
the deal with them, only to submit something completely different from what had been  
tentatively agreed to as a basis for discussion on August 22.  
[253] What is also clear is that this email would have ended any exclusivity agreement,  
which if one had been agreed to, could only have been in relation to the August 22  
discussion, of which the fundamental condition to any potential joint bid agreement and  
exclusivity was the Pichette Map #1.  
[254] The map that Mr. Bich sent with his new proposal on August 27 was a significant  
encroachment on the land divisions that were the basis for the understanding of August  
22. On August 22 Lake Papineau was off the table; on August 27 Mr. Bich put it back on.  
[255] Then, on August 28, Mr. Bich said this to Mr. Bellini in an email: “I did discuss that  
a bit with them today. Told them that we could bring our deal to any developer if we were  
looking to get the best deal for us but that we would prefer to work with them especially  
as we are so close.”133  
[256] These are hardly words of an individual who thought he was bound by an  
exclusivity agreement that he would have had to terminate! Moreover his partner did not  
believe that there was an exclusivity agreement either having written the following just  
earlier: “Ok My first impression is that we can shop around to test the waters for a joint  
bid with one of the developers already interested in the project. If those options are not  
as interesting we can always go back to Pichet (sic) Harper.”134  
[257] And then, on August 31, Mr. Bich again raised the possibility of talking to  
[258] To be fair to the position of Plaintiffs, it is true as they set out that there was  
inconsistency between the testimony of Mr. Pichette and Mr. Harpur on the Pichette  
group’s reaction after Mr. Bich’s new proposal of August 27. Contrary to the former’s  
testimony it seems that Mr. Harpur did not write Mr. Bich to advise him that it was not  
acceptable and that exclusivity was off the table. However, this does not change the  
Court’s view on this issue, as for the reasons outlined above, it concludes that there was  
no exclusivity agreement.  
Exhibit P-320.  
Exhibit P-335.  
Exhibit P-359.  
2.4.3 The Alleged September 3 Agreement  
[259] Mr. Bich’s position, is that the email of September 3 that he received from Mr.  
Harpur was an acceptance of his 60/40 offer made at the Heenan meeting of August 13,  
and reiterated in his email of August 31.136  
[260] The idea that an offer was made at the Heenan meeting was only clearly put  
forward in closing argument and seems curious, as during his testimony this was not the  
scenario that Mr. Bich put forward. Rather he characterized it as an acceptance of the  
60/40 proposal set out in his email of August 31.  
[261] Yet in their written arguments, Plaintiffs posit that the August 31 email was “was to  
reiterate the different scenarios that were tabled since the Heenan meeting, as well as to  
reiterate the parties’ shared conservationist approach.”137 They further state that the  
September 3 email from Mr. Harpur was an unambiguous acceptance of Mr. Bich’s “60/40  
Proposal”,138 which had been made at the Heenan meeting.139  
[262] It is useful to consider how the allegations of an agreement are framed in the Re-  
amended Originating Application:  
46. From February to the end of August 2013, Bich and Defendants exchanged  
many e-mails, spoke numerous times, and eventually concluded an agreement to  
partner in a joint and exclusive bid to buy the Kenauk property from Oxford;  
57. In August of 2013, both Plaintiffs and Defendants came to an agreement to  
partner together in a joint and exclusive bid in the following circumstances;  
58. At a meeting held at the offices of Heenan Blaikie on August 13, 2013, Plaintiff  
Bich, and Defendants Pichette and Harpur, discussed participation in a joint bid  
addressed to Oxford and what it would entail: the Plaintiffs and Defendants  
becoming partners, allocation of sections of the Property between them should  
their bid be successful, capital investment by each of them and exclusivity  
commitments to each other, meaning not competing with each other to purchase  
the Property;  
71. On August 31, 2013, Bich, still being kept in the dark about the Defendants  
alternate plans, formally proposed to the Defendants that they contribute 60% of  
the purchase price, with 40% to be supported by the Plaintiffs, the whole as  
Plaintiffs’ Plan of Argument par. 142.  
Ibid. par. 155.  
Ibid. par. 145.  
appears from an e-mail dated August 31, 2013, communicated in support of the  
present Motion as Exhibit P-9;  
73. On September 3, 2013, Defendant Harpur on behalf of himself and Pichette,  
notwithstanding the fact that they were already pursuing to close a deal with Lyme,  
confirmed to Bich that both Defendants agreed with the 60/40 split and confirmed  
the areas around Lake Papineau that Defendants would acquire should the joint  
bid be accepted by Oxford, the whole as appears from an e-mail dated September  
3, 2013, communicated in support of the present Motion as Exhibit P-10140;  
73.1 E-mail Exhibit P-10 sent to Plaintiffs by the Defendant Harpur was obviously  
crafted so that the Plaintiffs would believe they had struck a deal with Defendants  
while keeping hidden the fact that both he and Pichette were then intent on  
finalizing an alternate bid arrangement with Lyme;  
[263] Briefly unpacking both these allegations and the affirmations made in closing  
argument, one sees that the position put forward at the argument stage of the trial was  
certainly not clearly set out in the Re-amended Originating Application.  
[264] In addition, there are several problems with the affirmation that a 60/40 proposal  
was presented at the meeting of August 13.  
[265] Firstly, what were its terms? Here is what Plaintiffs say in their argument:  
75. These terms, which Bich presented to Harpur and Pichette during the Heenan  
Meeting, were a scenario under which Bich and his partners would acquire all of  
Kenauk, except for Lake Papineau, for 40% of the purchase price, and Harpur and  
Pichette would acquire Lake Papineau in return for 60% of the purchase price (the  
“60/40 Proposal”).141  
[266] However, there was no definition of the precise meaning of “except for Lake  
Papineau”. What about the lands around it? The scope of what Mr. Pichette wanted to  
conserve around Lake Papineau only became clear on August 19, when Pichette map #1  
was communicated.  
[267] It seems trite to say, but in the Court’s view here could not have been a formal  
offer made by Mr. Bich absent a more precise understanding of the land that each party  
wanted and the boundaries thereof at the August 13 meeting.  
[268] Article 1388 C.C.Q. requires an offer to contain the essential elements of the  
proposed contract :  
Also exhibit 362.  
Plaintiffs’ Plan of argument, par. 75.  
1388. An offer to contract is a proposal 1388. Est une offre de contracter, la  
which contains all the essential elements proposition qui comporte tous les éléments  
of the proposed contract and in which the essentiels du contrat envisagé et qui  
offeror signifies his willingness to be indique la volonté de son auteur d’être lié  
bound if it is accepted.  
[269] It was considered by the Court of Appeal in Howick Apparel Ltd. c. Champoux :  
[13] Il est important qu'une offre soit sérieuse, ferme et précise. C'est ce qui  
en cas d’acceptation.  
permet de distinguer l'offre véritable, qui lie la personne de qui elle émane, de la  
simple invitation à contracter ou à entrer en pourparlers. Il faut également que  
l'offre comporte tous les éléments essentiels du contrat envisagé. La raison est  
simple : il faut que le destinataire de l'offre puisse prendre une décision éclairée  
quant à un éventuel contrat qui le liera.  
Dans leur ouvrage Les obligations, 6ième éd., les auteurs Baudouin et Jobin  
abondent dans ce sens, aux pages 253 et 254 :  
L'offre, tout d'abord, doit être sérieuse, ferme et précise. L'offre faite pour  
plaisanter, pour explorer un terrain d'une entente éventuelle ou qui est trop  
imprécise n'est pas la manifestation d'une volonté claire de conclure un contrat.  
L'offre, ensuite, doit contenir tous les éléments essentiels du contrat projeté pour  
permettre l'adhésion de l'acceptant. Si la proposition oblige la personne à qui elle  
est faite à une négociation, à une demande de renseignements ou de précisions  
sur ces éléments, elle ne constitue pas alors une offre véritable, mais une simple  
invitation; […]  
C'est l’aspect des « éléments essentiels » qui n’a pas été considéré avec  
justesse par le premier juge. […]142  
[270] The judgment in Société en commandite de Copenhague c. Corporation  
Corbec,143 provides another example of the need for a document to contain the essential  
elements in order to be considered a formal offer. It also provides an interesting parallel  
with the present matter, as the contract in question was for the lease of part of an industrial  
building. The Court of Appeal said this:  
Il est acquis qu'une offre de location doit contenir tous les éléments  
essentiels du contrat envisagé pour constituer une offre de contracter Il en va de  
même pour la promesse de contracter.  
La Société soutient que les éléments essentiels d'un contrat de location  
« se limitent à la description du bien loué, à la durée du bail et au montant du  
loyer ». Cela est certes vrai de la description du bien loué et du montant du  
loyer. Mais les éléments dits essentiels peuvent varier d'un contrat de louage à  
2007 QCCA 674.  
2014 QCCA 439.  
un autre. Les éléments que constituent la description du bien loué et le montant  
du loyer ne sont qu'un minimum requis.  
Les auteurs Grammond, Debruche et Campagnolo expriment bien cette  
idée :  
It flows from art. 1388 C.C.Q. that it is not necessary that an offer contain all the  
terms of the proposed contract, but only its “ essential elements ”. In this  
connection, art. 1387 C.C.Q. allows the parties to “ reserve agreement as to  
secondary terms ”. The essential elements ” which must be contained in the offer  
vary with each contract. When a nominate contract is contemplated, the essential  
elements must at least include those obligations that define the nominate contract  
in question. For example, art. 1851 C.C.Q. defines lease as a contract where the  
enjoyment of certain property is provided in exchange for a rent. It follows that an  
offer to conclude a contract of lease must identify the property to be leased as well  
as the rent.  
In addition, the context or the conduct of the parties may indicate that other  
elements of a proposed contract must be considered essential.144  
(References omitted)  
[271] The boundaries, an essential part of any agreement were not fully discussed at  
the Heenan meeting. Their importance to the transaction can be seen from the fact that  
they remained a topic of discussion throughout the negotiations. In fact, they were never  
fully agreed upon.  
[272] In addition, the conduct of the parties following the Heenan meeting shows that  
the essential conditions for any offer had not been set out.  
[273] Mr. Bich never accepted Pichette map #1. He submitted a new map on August 27,  
and Mr. Pichette countered with map #2 the next day. The September 3 email was  
contingent on the boundaries set out in map #2 although the email left open the possibility  
of a conservation line between Mr. Pichette’s line and Mr. Bich’s, so it can hardly be an  
acceptance of some undefined proposal tabled on August 13. Plaintiffs’ statement that  
they understood the land each party wanted145 is, with respect, disingenuous as on  
August 13 there was at best a very high level understanding of each party’s interest.  
[274] Another obstacle is that neither Mr. Pichette nor Mr. Harpur recollect any specific  
offer being made on August 13. Their testimonies are consistent. Mr. Bich could have  
corroborated his version of the meeting, but chose not to call available witnesses, such  
as Bruce McNiven or Gram Ramshaw.  
Plaintiffs’ Plan of argument par. 76.  
[275] The Court concludes that the meeting was a meet and greet, very general in scope  
where a potential transaction was discussed in the very big picture. Even if Mr. Bich might  
have said that his group would contribute 40 % to the price of the transaction, and spoken  
in the most general terms about what he wanted, he did not provide a sufficiently precise  
indication of the land divisions for an offer to have been made.  
[276] In fact, the parties were not even close to a meeting of the minds on land divisions,  
as the different communications leading up to September 3 demonstrate. One of the most  
poignant is the exchange of emails immediately following the Heenan meeting.146 Mr.  
Bich wrote Mr. Heenan on August 14 to enquire if some of the current owners on Lake  
Papineau would want to buy more land. In the same email he says that he will work on  
numbers and concept. Two days later he wrote that he was “giving some thought on  
different options”. This is hardly indicative of his having made a formal offer two days  
[277] While that exchange does conclude on August 20 with Mr. Pichette referring to a  
50/50 offer, which Plaintiffs posit was made at the Heenan meeting, that is not a possible  
interpretation of Mr. Pichette’s words:  
This is somewhat of an unfortunate turn of events. From our meeting last week we  
understood that Charles was not interested in the lake and just wanted his section.  
Hence doug tabled an offer to simply buy the lake and let them acquire the entire  
rest of the property at 50-50 split.  
(The underlined portion is relied on by Plaintiffs)  
[278] Clearly this refers events after the Heenan meeting.  
[279] In addition in their own characterization of Mr. Bich’s August 23 email to Mr.  
Pichette and Mr. Harpur, Plaintiffs state: “This email also shows that there was no  
agreement on property division during the call of August 22, 2013.”147 If there was no  
agreement on August 22, it seems completely improbable that the 60/40 proposal that  
Plaintiffs posit was made at the Heenan meeting was precise enough to be an offer. Each  
side had to know who was getting what.  
[280] While Mr. Bich’s primary interest may well have been the Western portion of the  
property, he was never satisfied with it alone. He always wanted a piece of Lake  
Papineau, and, in fact, this desire did not disappear with the supposed agreement on  
September 3.  
[281] As for the Lake Maholey portion, the precise boundaries of the Bellini’s interest  
were never agreed to either.  
Exhibit P-269.  
Plaintiffs’ Plan of argument par. 104.  
[282] In addition, in his deposition, referring to his August 27 proposal,148 he admitted  
that there were many moving parts to any potential deal, as this exchange shows:  
Q- Oh, so the moving parts are not necessarily issues?  
A- They’re not deal breakers.  
Q- I understand they’re not deal breakers, but what are they? I want to have the  
list of the moving parts because we may have a different opinion from yours, with  
all due respect, so I’d like to know what is the full list of those moving parts. In other  
words, those parts that were still uncertain and moving around.  
A- No, they are things that could change on the property, it’s... it’s an endless  
[283] So, what was the September 3 email from Mr. Harpur? It was not an acceptance  
an offer made in the August 31 email of Mr. Bich.150 That email called for several  
concessions from the Pichette group, including two building lots on Lake Papineau, which  
it had never been prepared to accept. In the Court’s view, the August 31 email was not  
an offer. There were too many different scenarios put forward.  
[284] And, even if it was an offer, it included:  
3. This includes, to be clear, a return to the Western line, that I presented and two  
prime lots on Lac Papineau for our use (ie to be clear again our interest in Lac  
Papineau lots is not a speculative acquisition).  
(The Court’s underlining)  
[285] One might conclude that these were essential conditions for Mr. Bich.  
[286] However, giving the Bich group lots on Lake Papineau was never in the cards for  
the Pichette group and was certainly not contemplated in the September 3 email. In  
addition, that email did not clearly accept a return to the Western line. Therefore, the  
September 3 email was not an acceptance of what was proposed in Mr. Bich’s August 31  
[287] This also addresses Plaintiffs’ argument that because the specific boundaries of  
the Pichette group’s ultimate offer were not fully defined when their offer was made to  
Oxford, the same principle should hold true when looking at the September 3 document.  
Given that the return to the Western line was a condition precedent for Mr. Bich to move  
forward, the fact that the approach of Mr. Wilson, Mr. Monaco and Lyme Timber was more  
flexible is of no help to him and his partners.  
Exhibit P-320.  
Pre-trial examination of Mr. Bich of May 12, 2016, p. 141.  
Exhibit P-359 (or P-9).  
[288] So, the September 3 email can be characterized as a response to the August 31  
email of Mr. Bich. Mr. Pichette wanted to get the file moving in a positive way while he  
was travelling in Africa. He gave Mr. Harpur some latitude to move forward by increasing  
the capital that his group was prepared to put up to $27 million. However, he gave Mr.  
Harpur clear instructions that any agreement was conditional on Mr. Bich accepting Map  
#2, which was not the proposal made by Mr. Bich on August 31.  
[289] Mr. Harpur ran with the ball and sent the September 3 email, but the whole  
proposal was conditional on Mr. Pichette’s final approval when he returned from his trip.  
[290] It is also clear that the email was not an acceptance of an offer that Mr. Bich made  
at the Heenan meeting as Pichette map #2 was not even being dreamed about at that  
time. It’s was rejected by Mr. Bich right up to September 3. The map that he presented  
on August 27,151 was very different from Pichette map #1 particularly as regards the  
eastern boundary of his coveted portion. Pichette map #2 made only a minor concession  
to that boundary. While Mr. Pichette’s western line might have been confirmed as a  
conservation line, this was not confirmed on September 3 and, as the Court has said, Mr.  
Bich was categorical that a condition for him was that he own the area between Mr.  
Pichette’s western line and his eastern one.  
[291] When Plaintiffs posit that the lack of final agreement on the boundary did not  
preclude the formation of a contract they are wrong, as they invite the Court to ignore the  
evidence. Clearly the boundaries were an essential element for Mr. Bich, so no contract  
was concluded on September 3.  
[292] In sum, the Court considers that the email was an invitation to continue the  
discussions. If it were to be characterized from a juridical perspective, at best, it would  
have been a conditional offer from the Pichette group to move forward on the basis of  
Pichette map #2 with the capital contributions being $27 million from the Pichette group  
and $18 million from the Bich group. However, the conditional offer was withdrawn before  
Mr. Bich accepted it.  
[293] Mr. Harpur understood that Mr. Bich would need to discuss the proposal with his  
partners. This was not an unreasonable assumption given the documentary evidence.  
Several examples support this, going right back to his February 1 email to Mr.  
Desmarais.152 There are others around September 3. On August 22, Mr. Bich felt the  
need to speak to Mr. Desmarais to get his approval on the deal he was close to.153 On  
August 26 he informed Mr. Harpur that he still needed to hear back from the Bellini  
family.154 Then on September 3, after getting the proposal, he continues to talk about  
building lots, “[s]o that I have all of the information to give to the others”.155  
With exhibit P-320.  
Exhibit P-98.  
Exhibit D-24.  
Exhibit P-316.  
Exhibit P-364.  
[294] This email to Mr. Harpur on September 3 that Mr. Bich wrote minutes after  
receiving the former’s proposal is perhaps the most poignant. Mr. Bich was still focused  
on how many housing sights there would be. Mr. Harpur answered, saying that it would  
depend on the conservation plan.156  
[295] As to the alleged phone call between Mr. Bich and Mr. Harpur on September 3,  
the Court finds Mr. Harpur’s version that there was no call more credible. Mr. Bich would  
not have needed to send the email on the building lots if there had been a call. In addition,  
the call was not alleged in the Re-amended Originating Application. And, why carry out  
the most important part of the discussion by phone when everything else was  
documented on paper?  
[296] In any event, even if there was a call, the evidence shows that contrary to his  
testimony about the call, Mr. Bich and his partners were not good to go”. However, for  
arguments sake, even if the Court accepted that there was a call with Mr. Harpur on  
September 3, this would not change the conclusion of the Court that there was no  
agreement on September 3. Clearly Mr. Bich did not have the agreement of his partners  
to accept the September 3 proposal and he required it to move forward.  
[297] The communication of September 13157 from Mr. Bich to Mr. Pichette and Mr.  
Harpur is a clear indication of this. Mr. Bich was still worried about building sites and had  
to finalize something with his partners. Moreover, contrary to what Mr. Bich said at trial,  
this was not merely informational. Mr. Bellini was specifically enquiring about it, asking  
for an update on resolving the last few points, including building density.158 So, as we  
have seen throughout the narrative, Mr. Bich needed the consent of his partners to bind  
them and he did not have that on September 3.  
[298] His communications to Mr. Desmarais on September 13 and 14 that there were  
decisions to make also provide clear indication that there was no deal.159 The September  
14 one gives pause, as Mr. Bich refers to having an agreement with Mr. Pichette when  
the latter had in fact not confirmed his agreement with the proposal of September 3 made  
by Mr. Harpur.  
[299] On September 13, Mr. Bich was also meeting with the brokers. He did not advise  
them of an agreement having been concluded on September 3. He wanted clarifications  
on the bid process. What is more, the impression of Mr. MacDougall was that Mr. Bich  
was putting his own group and bid together.160 Moreover, at this meeting Mr. Bich did not  
disclose his partners; curious if he had agreed to a deal with Mr. Pichette and Mr. Harpur!  
The Court does not have a finite idea of Mr. Ratsch’s impression as he did not testify.  
Exhibit P-406.  
Exhibit P-409.  
Exhibits P-410 and D-145.  
Exhibit P-441, email of September 16, 2013 at 12:30 PM.  
[300] Mr. MacDougall testified that Mr. Bich also wanted information on the chalet rental  
business, something that, based on their July 19 document, the Bellinis wanted to  
terminate. This was a significant divergence from the approach of the Pichette group  
which was prepared to maintain that business. These late inning inquiries of Mr. Bich are  
another indication that he did not think he had a deal on September 3.  
[301] Another demonstration of same is that on September 15 he wrote to Mr. Harpur  
musing “…if and how we put an offer together”. It is also worth pointing out that this email  
was not answered in a substantive way, an indication that the Pichette group did not think  
they had made a deal either.  
[302] Mr. Harpur telling Mr. Bich on September 19 that the 60/40 proposal was off the  
table does not change this. For him the September 3 proposal had never been finalized,  
as Mr. Pichette had never confirmed the property line.  
[303] It is true that between September 15 and 19, Mr. Harpur was doing his best not to  
talk to Mr. Bich, but the Court does not view this as bad faith. He and Mr. Pichette were  
trying to put a deal together with Mr. Bich and set out a framework on September 3. At  
the risk of repetition, Mr. Bich did nothing to move the deal ahead and when he surfaced  
on September 13 was still not ready. Any reasonable business person would have been  
reluctant to treat in these circumstances.  
[304] This also explains Mr. Pichette’s reaction. When he went to Africa, he was aware  
of the general tenure of what Mr. Harpur was going to propose on September 3, the first  
inning for him. He expected progress upon his return and there was none. In the Court’s  
view, the cause of the lack of progress sits squarely with Mr. Bich, who did nothing to  
move the deal forward.  
[305] Mr. Pichette thought that he was being strung along by three billionaires and was  
worried that they might do a deal without him. Indeed, Mr. Bich’s interactions with the  
brokers during this timeframe give some credence to the possibility that Mr. Bich might  
have been trying to do his own deal. The Court cannot fault him for asking Mr. Harpur to  
come forward with a “plan B”.  
[306] Nor is it surprising that Mr. Pichette never reverted on the September 3 proposal,  
as Mr. Bich never confirmed that he had presented the September 3 proposal to his  
[307] In fact, he did nothing to move the deal forward and there are no written  
communications in the record to demonstrate that he did. This belies common sense. In  
a file where there are hundreds upon hundreds of exhibits, the supposedly key document  
and agreement was not presented to Mr. Bich’s partners in writing?  
[308] That some progress occur while Mr. Pichette was travelling was essential for him  
to consider moving forward with Mr. Bich. There was none; Mr. Bich did not even try to  
communicate with the Pichette group before September 13.  
[309] Discussion of the price is also important. The testimony of Mr. Bellini is instructive  
of the lack of complete agreement on this aspect of the deal. He talked about a deal of  
between $45 and $50 million, with the Bich group putting up a maximum of $20 million.  
He does not believe that they were prepared to commit to an un-capped amount based  
on a 60/40 split. This is not without importance, as given the final price it was not  
demonstrated that the Bellinis would have committed additional funds for the Lake  
Maholey sector. In the context of a deal with the Pichette group, the terms of the Bellini’s  
agreement to participate, communicated on July 19, limited their contribution to $10  
million161 and these terms were not changed.  
[310] It is true that when the deal with the Pichette group had clearly fallen apart, Dr.  
Bellini offered to put up $25 million in an independent offer, for the whole property, but  
the evidence does not show that he would have put up more to secure his initial interest.  
[311] The funds of Mr. Desmarais were not secured either, so one wonders if Mr. Bich  
really had his financing in order. This is all the more clear when one considers his  
deposition around the need to finalize something with his partners:  
Q- And you say:  
“I still need to sit down with our parties.” “Our parties”; who do you mean by that?  
A- That would probably be André Desmarais, and I do not know if it would include  
Roberto Bellini or Francesco Bellini.  
Q- And what’s the “something”?  
A- The “something”? It’s the details.  
Q- Of what?  
A- Of the transaction.  
Q- Could you be more specific?  
A- Where we want to go with the transaction now that we have an agreement to  
sixty/forty (60/40), where are we going.  
Q- Well, I’m not sure I understand you. Are you going or you’re not going?  
A- No, were we going... our details on our side.  
Q- What needs to be finalized there? Remember, you’re telling that to Doug  
Harpur, you’re telling that to the Defendants...  
Exhibit D-196.  
A- Right.  
Q- “I still need to sit down with our parties to finalize something.” So there seems  
to be something else that’s still up in the air and needs finalizing.  
A- No, I think it speaks to the details that we know are not deal breakers, is the  
term I’ve used, and that we need to finalize these details.  
Q- But do you know what they are? Because we could have a different opinion  
from you as to whether they’re deal breakers or not.  
A- For us, only left on our side would be for André and I, the membership, if we’re  
doing members or putting capital ourselves. And that’s all I can think of as things  
(The Court’s underlining)  
[312] The most plausible conclusion that one can retain from this testimony is that Mr.  
Bich needed the agreement of his partners to conclude any deal. However, an even more  
important element is that he had not obtained a commitment from Mr. Desmarais that the  
latter was prepared to commit funds, even in the absence of the sale of memberships to  
[313] For Mr. Demarais, the refinancing of LWE was a condition precedent to moving  
forward from the outset and remained so on September 21163 and even as late as  
September 23, 2013.164 Given the absence of new members on September 3, Mr. Bich  
could not affirm that Mr. Desmarais would actually commit $5 million. The contrary seems  
to be the case.  
[314] What’s more there is no conclusive evidence that Mr. Desmarais would have  
ultimately put up his $5 million, as post September 3 no one, including Dr. Bellini, had  
subscribed to memberships in LWE.165 The testimony of Mr. Desmarais might have  
clarified this issue, but it was not offered.  
[315] This element of the evidence also goes to the very heart of good faith in contractual  
dealings and to Plaintiffs’ argument that “Les deux parties doivent agir dans un esprit de  
coopération et se retirer des négociations dès qu'elles perdent l'intérêt de passer ledit contrat ”.166  
[316] For the Court, not disclosing this condition of the Plaintiffs’ financing to the Pichette  
group demonstrates that it was actually Mr. Bich who was in bad faith in its contractual  
Pre-trial examination of Mr. Bich of May 12, 2016, pp. 168-169.  
Exhibit D-149.  
Exhibit D-283.  
On the issue of the LWE memberships, one might also consider Mr. Bich’s entreaties to Mark Smith on  
September 14, looking for help to finalize this element of the transaction, found in Exhibit D-277.  
Plaintiffs’ Plan of argument, par. 334.  
dealings. It also gives much credence to Mr. Harpur’s analogy of not getting the tennis  
ball returned.  
[317] The evidence also demonstrates that after the Bich group missed the bid deadline  
that Mr. Desmarais did not rush to offer to contribute additional capital, preferring a wait  
and see approach.  
[318] Despite this overwhelming evidence, Plaintiffs state:  
164. As testified by Bich, considering the unique opportunity Kenauk represented,  
and although AD would have preferred for Bich to find partners prior to the  
acquisition, Bich would have made the acquisition whether or not he was able to  
find members for the hunting club prior to the bid deadline.167  
[319] The Court cannot accept this. Throughout his testimony Mr. Bich repeated that he  
and Mr. Desmarais only had $5 million each to put into the venture and were not prepared  
to borrow.168 In fact, an oft repeated idea that he pitched to Mr. Desmarais was that if they  
sold enough memberships, neither would have to put up any capital. There is not one iota  
of evidence that Mr. Desmarais would have proceeded without the sale of memberships  
or that Mr. Bich had the resources to do the deal without him. Mr. Bich inference that Mr.  
Desmarais would have gone ahead is disingenuous and unsupported by the evidence.  
[320] Finally, on this element, the Court agrees with Defendants that it can draw a  
negative inference from the absence of Mr. Desmarais as a witness. Justice Duprat  
discussed this in Informatique Côté Coulombe inc. c. Produits chimiques Magnus ltée:  
[61] M. Robitaille n’a pas été appelé comme témoin lors du procès. Il est certain  
que son témoignage aurait pu fournir au Tribunal des éclaircissements précieux.  
Il a été l’un des principaux acteurs de l’installation et du déploiement pour Magnus.  
[62] Le Tribunal est d’avis qu’il est approprié de tirer une inférence négative de  
cette situation, particulièrement alors qu’ICC établit un doute sérieux sur la  
compétence de M. Robitaille. Le juge Louis Crête dans 6891055 Canada inc. c.  
3561704 Canada inc., rappelle :  
70 Il existe une règle jurisprudentielle en droit de la preuve en matière civile  
voulant qu'il faille tirer une conclusion défavorable à une partie lorsqu'elle omet de  
faire entendre un témoin qui pourrait venir fournir une information importante et  
pertinente et, le cas échéant, contredire une preuve faite par la partie adverse:  
(ii) Failure to Testify or to Call a Material Witness or Other Evidence  
6.449 In civil cases, an unfavourable inference can be drawn when, in the absence  
of an explanation, a party litigant does not testify, or fails to provide affidavit  
Ibid. par. 164.  
Mr. Bich did say at one point that thy might be prepared to put in slightly more, say $5.2 million,  
depending on the bids.  
evidence on an application, or fails to call a witness who would have knowledge of  
the facts and would be assumed to be willing to assist that party. In the same vein,  
an adverse inference may be drawn against a party who does not call a material  
witness over whom he or she has exclusive control and does not explain it away.  
Such failure amounts to an implied admission that the evidence of the absent  
witness would be contrary to the party's case, or at least would not support it.  
6.450 An adverse inference should be drawn only after a prima facie case has been  
established by the party bearing the burden of proof.»  
71 Ce principe avait été énoncé au Canada dans la cause fréquemment citée  
de Murray v. Saskatoon, cause où la Cour d'appel de la Saskatchewan se réfère  
elle-même à Wigmore on Evidence:  
The failure to bring before the tribunal some circumstance, document, or witness,  
when either the party himself or his opponent claims that the facts would thereby  
be elucidated, serves to indicate, as the most natural inference, that the party fears  
to do so, and this fear is some evidence that the circumstance or document or  
witness, if brought, would have exposed facts unfavourable to the party. These  
inferences, to be sure, cannot fairly be made except upon certain conditions; and  
they are also open always to explanation by circumstances which make some  
other hypothesis a more natural one than the party's fear of exposure. But the  
propriety of such an inference in general is not doubted. [Soulignements du  
(References omitted) Was there a Bilateral Promise to Contract  
[321] The Court will now briefly address Plaintiffs’ contention that if there was not a  
contract concluded on September 3, there was a bilateral promise to contract. Central to  
Plaintiff’s argument is that the September 3 document contained all of the essential  
conditions for the formation of a contract.  
[322] This concept was considered by Justice Matteau in Dumoulin c. Hydro-Québec:  
[65] Contrairement aux prétentions de la défenderesse, la preuve non contredite  
est à l'effet que tous les éléments essentiels à un engagement contractuel valide  
étaient arrêtés entre les parties.  
[66] Avec égards, conclure, comme le souhaiterait la défenderesse, que toutes  
les discussions, rencontres et communications écrites qui ont eu lieu entre les  
parties, de même que tous les faits et gestes posés par Hydro-Québec, n'auraient  
été que des pourparlers ou des préliminaires à la conclusion éventuelle d'un  
contrat qui, par ailleurs, ne se serait jamais formé, ne résiste pas à l'analyse de la  
2018 QCCS 1494.  
[67] En effet, la décision d'Hydro-Québec était à ce point arrêtée qu'un décret  
émis par le Gouvernement du Québec, en mars 1996, l'autorisait à aller de  
l'avant. Elle ira même jusqu'à signer avec la Municipalité un protocole d'entente  
pour prévoir, entre autres, les modalités de la construction du chemin d'accès au  
poste électrique.170  
[323] Justice Matteau held that there was a formal promise to contract on the part of  
[324] The situation is different here. Firstly, the arrangement proposed by Mr. Harpur  
needed to be confirmed by his partner, Mr. Pichette. Secondly, ownership of the possible  
conservation area was an essential condition for Mr. Bich. Finally, despite what he alleges  
to have said on September 3, Mr. Bich never confirmed that his partners were prepared  
to move forward. On September 13 he still had to sit down and finalize something with  
[325] In sum, the Court cannot find that there was a binding promise to contract.  
2.4.4 Did Defendants Commit a Fault When they Terminated  
[326] When it is clear that discussions are going nowhere, a party may end them. This  
is made clear by the Court of Appeal in Singh c. Kohli:  
[71] This oft-cited sentence must be read in context, however, and it is worth  
repeating that 1) except in circumstances which are themselves the result of the  
freedom to contract (or not to contract), no one has to enter into a contract or make  
a promise to contract, and 2) that there is a correlative right to terminate  
negotiations. That such negotiations are generally undertaken with the anticipation  
that a contract will ensue does not mean that one party cannot change his or her  
mind along the way, even at the last minute. Good faith, in that sense, is not meant  
to limit freedom to contract or not to contract but to ensure that parties act honestly  
and loyally during the negotiations.172  
[327] These words are very “à propos” here, given that following the September 3 email,  
Mr. Bich had done nothing to move the matter forward.  
[328] As to the good faith of Mr. Pichette, he felt that he was being played, given the lack  
of feedback. It turned out that he was being played, given the lack of financing on the Bich  
group’s side and given Mr. Bich’s constant return to the number of building sites on the  
2003 33244 (QC CS).  
Exhibit P-406.  
2015 QCCA 1135.  
[329] Following the failure to conclude a joint bid, did the Pichette group agree to provide  
the Western lands to Mr. Bich?  
3.1 Conclusion  
[330] There was no agreement to do so.  
3.2 Facts relevant to the issue  
[331] The Court can be brief on this issue as the conclusions of Plaintiffs’ application ask  
for Mr. Bich to be declared owner of a large tract of land set out in Exhibit P-30a,  
essentially the entire portion of the lands that he and Mr. Desmarais had coveted from  
the outset of the discussions.  
[332] The relevant facts will be considered in the discussion below.  
3.3 Legal principles  
[333] Here, the Court must determine whether Mr. Pichette agreed to transfer this land  
to Mr. Bich in the event that his group’s bid was accepted. The general principles of  
contract apply.  
3.4 Discussion  
[334] There was clearly no agreement concluded, whereby, the Pichette Group would  
transfer the Western portion to Mr. Bich if it successfully acquired the land.  
[335] Following the September 22 phone conversation, Mr. Bich wrote the following:  
Will be working on what land we would be interested in but wanted to ask you a  
question first. Would you want to keep as much as possible or would us offering to  
take on more so you have less to manage be better?173  
[336] In the same email exchange Mr. Pichette confirmed that he would keep of the land  
as possible and that Mr. Bich’s portion would be a carve-out.  
[337] Yet, on September 24, Mr. Bich presented two options, both of which included  
Lake Maholey and a large part of the Western lands.174 They were refused by Mr.  
Pichette, as he wanted Mr. Bich to present an option with Lake Maholey and one without  
Exhibit P-496; This email of Mr. Bich is also interesting as it does not raise the breach of any agreement.  
Exhibit P-544.  
[338] This was never done as the Bellinis had asked Mr. Bich to make one offer, which  
included Lake Maholey.176  
[339] More importantly on this issue, the idea of a carve-out did not suit Mr. Bich, as it  
did not give him the critical acreage that he was looking for to make LWE world class. Mr.  
Pichette never offered more, so there was never an agreement on the essential elements  
of the transfer of the Western lands. There was not even an agreement on price.  
[340] As late as September 30 Mr. Bich said the following:  
I was thinking about the minimum hunting area we could use if it is really a problem  
for us to get 25,000 acres. Map attached is about 18,500 acres and as you have  
always asked me to put $ to the areas I was thinking 6M.  
If you can please let me know if something like this or ideally the other map with  
25,000 or the 30,000 acre would work I would appreciate it.  
If we could find an arrangement that would work for us to be included with area we  
would like it would reduce the amount of capital you and the others involved need  
to put in.177  
[341] This document shows two things. First, there was no agreement that Mr. Pichette  
would concede land to Mr. Bich and, second, Mr. Bich continued to press for much more  
land than Mr. Pichette was ever prepared to consider transferring to him.  
[342] Nonetheless, Mr. Pichette and Mr. Bich kept talking even after the Pichette group  
submitted its bid. Mr. Bich was still desperate to get the land that he wanted, although Mr.  
Pichette was trying to get him to understand that following the submission of the bid that  
the decision on a piece of land for Mr. Bich would need to be considered by his new  
partners. There was no agreement.  
[343] There is one exchange that gives pause, being Mr. Pichette’s email to Mr. Harpur  
of September 30. Following his group’s decision to increase its bid by $3 million he writes:  
We are now in a great position. Well done +/- a Million or two.  
I thought it important to tell Charles that it was guaranteed he would have a deal  
with them. Life is long and we need to stay good partners in the community.  
[344] Plaintiffs would like this to be interpreted as a guarantee from Mr. Pichette to Mr.  
Bich that he would get his land.  
Exhibit P-523.  
Exhibit P-609; there are a significant number of additional communications post September 22 where  
Mr. Bich also acknowledges that there was no agreement by Mr. Pichette to concede land to him.