MDG Contracting Services Inc. v Mount Polley Mining Corporation

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

MDG Contracting Services Inc. v. Mount

Polley Mining Corporation,

2022 BCSC 1078

Date: 20220628

Docket: S2110069

Registry: Vancouver

Between:

And

MDG Contracting Services Inc.

Mount Polley Mining Corporation

Petitioner

Respondent

Before: The Honourable Justice E. McDonald

Reasons for Judgment

Counsel for the Petitioner:

D.G. Volk

S. John

Counsel for the Respondent:

B.J. Greenberg, Q.C.

O.L. Leung

Place and Date of Hearing:

Place and Date of Judgment:

Vancouver, B.C.

February 15-16, 2022

Vancouver, B.C.

June 28, 2022

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 2

Table of Contents

INTRODUCTION ....................................................................................................... 3

THE ALLEGED ERRORS ......................................................................................... 4

ISSUES...................................................................................................................... 5

FACTUAL BACKGROUND....................................................................................... 5

The Background in the Award ................................................................................ 5

The Dispute............................................................................................................ 8

The Award.............................................................................................................. 9

ANALYSIS............................................................................................................... 12

Has MDG met the statutory requirements for granting leave to appeal?.............. 12

The threshold requirement – identification of a question of law ........................ 13

The failure to find Mount Polley liable to MDG for negligent misrepresentation 16

The failure to find that Mount Polley breached its good faith contractual duty of

honest performance.......................................................................................... 21

Should the Award be set aside because MDG has shown that the Arbitrator

committed an arbitral error? ................................................................................. 22

DISPOSITION.......................................................................................................... 26

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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Introduction

[1]

On November 29, 2017, the petitioner, MDG Contracting Services Inc.

(“MDG”), and the respondent, Mount Polley Mining Corporation (“Mount Polley”),

entered into a contract for MDG to provide dredging work to remove tailings from an

area within the Mount Polley Mine (the “Agreement”). The Agreement as a result of

Mount Polley issuing a request for proposals and MDG responding to the request

with a proposal.

[2]

MDG’s work removing tailings did not go as planned and a dispute arose

concerning the Agreement. The work required by the Agreement was not

completed. Mount Polley terminated the Agreement for cause. MDG believes that

the problems giving rise to the dispute were caused mainly by Mount Polley’s

negligent representations, coupled with its wrongful failure to disclose relevant

information to MDG about the nature of the tailings to be dredged.

[3]

MDG commenced a notice of civil claim (the “Claim”) alleging that Mount

Polley breached and wrongfully terminated the Agreement and it made actionable

misrepresentations regarding the tailings. Mount Polley counterclaimed against

MDG and alleged that MDG breached the Agreement on numerous grounds,

including by refusing to complete the work.

[4]

MDG also issued a notice of arbitration. The parties agreed to use their

Supreme Court pleadings as their arbitration pleadings and they appointed

Mr. Murray Clemens, Q.C., as the sole arbitrator (the “Arbitrator”).

[5]

In 2021, the parties attended a lengthy arbitration hearing that they agreed

would address questions of liability only. That initial hearing resulted in a partial final

award of the Arbitrator dated October 20, 2021 (the “Award”). The outcome was that

MDG’s claim alleging liability on the part of Mount Polley was wholly unsuccessful,

while Mount Polley’s counterclaim against MDG was wholly successful.

[6]

In a matter before me, MDG seeks leave to appeal from the Award pursuant

to s. 31 of the Arbitration Act, R.S.B.C. 1996, c. 55 [Act]. MDG also seeks, pursuant

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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to s. 30 of the Act, to set aside the Award on the basis that the Arbitrator made an

arbitral error by failing to observe the rules of natural justice (the “Amended

Petition”).

The Alleged Errors

[7]

In seeking leave to appeal, MDG submits that the Arbitrator erred on

numerous grounds. The Amended Petition sets out the following alleged errors of

law:

i.

failing to find Mount Polley liable for negligent misrepresentation by

misapplying the duty of care analysis, misapplying the law regarding when an

omission may constitute misrepresentation, and, failing to consider the

element of reliance: Amended Petition, Part 1, para. 1(a);

ii.

failing to find Mount Polley liable for negligent misrepresentation by omission

by failing to consider the elements of MDG’s negligent misrepresentation

claim: Amended Petition, Part 1, para. 1(b);

iii.

failing to find Mount Polley liable for breach of its good faith contractual duty

of honest performance by misapplying the test for breach of the duty of

honest performance and failing to consider Mount Polley’s failure to disclose

material information: Amended Petition, Part 1, para. 1(c);

iv.

v.

failing to consider or misapprehending evidence relevant to MDG’s claims for

negligent misrepresentation by omission and breach of duty of honest

performance: Amended Petition, Part 1, para. 1(d);

in holding that MDG had overbilled Mount Polley and that Mount Polley had

overpaid for MDG’s dredging services: Amended Petition Part 1, para. 1(e);

and

vi.

in holding MDG liable for negligent misrepresentation by mischaracterizing

statements made by MDG as actionable misrepresentations: Amended

Petition, Part 1, para. 1(f).

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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[8] MDG further alleges that the Arbitrator committed arbitral error by failing to

observe the rules of natural justice with respect to his summary conclusion that MDG

owed a duty of care to Mount Polley when he failed to set out his “chain of reasoning

to explain how the Arbitrator reached that conclusion”.

[9]

Mount Polley opposes MDG’s Amended Petition mainly on the grounds that

MDG is unable to meet the threshold for leave to appeal. Mount Polley points out

that MDG lost the arbitration on every factual and legal point that was in issue.

Issues

[10] The issues to be addressed are whether MDG meets the requirements of the

Act for granting leave to appeal from the Award, including whether it appeals “to the

court on any question of law arising out of the Award” or whether the Award should

be set aside on the grounds that the Arbitrator erred by failing to observe the rules of

natural justice.

[11] For the following reasons, I have determined that MDG’s application must be

denied.

Factual Background

The Background in the Award

[12] The Award described the background of the parties and the Agreement in the

following way:

[1]

MDG Contracting Services Inc. (“MDG” or the “Claimant”) is a British

Columbia company with its main place of business in Sparwood, British

Columbia. MDG did not have prior experience in dredging but planned to

expand its operational profile to include dredging by hiring Hugo Vergara as

MDG’s newly appointed Operations Manager – Dredging, to assist MDG in

responding to the Request for Proposal issued by Mount Polley Mining

Corporation.

[2]

The Respondent, Mount Polley (“Mount Polley” or the “Respondent”)

is the owner and operator of the Mount Polley gold and copper mine located

in British Columbia near the towns of Williams Lake and Likely. This dispute

arose following the breach of a dam associated with the mine’s tailings pond,

causing a massive escape of tailings and fluid materials in August 2014.

Following the closing of the tailings pond, the mine continued operations

using the Springer Pit, then an active open pit mining operation, as a

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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temporary holding facility for tailings while the tailings storage facility (TSF)

was rebuilt or replaced. The achievement of that goal led to Mount Polley’s

need to have the tailings removed from the Springer Pit so that the mining

operations could be resumed, and the remaining ore could be mined and

milled to extract the copper, gold and silver.

[3]

The Agreement was made as of November 29, 2017 between the

Claimant and the Respondent under which MDG agreed to “…furnish all

supervision, tools, equipment, labour and materials to perform all work

necessary to fully complete the work outlined in the Scope of Work (the

Work) and the other contract documents.”

[4]

[5]

The Scope of Work is defined as:

4.0 The Scope of Work shall entail dredging up to 3,600,000 m3 of

tailings from the Springer Pit to the Tailings Storage Facility (TSF), a

distance of up to 8.0 km. The Contractor is to supply all mechanical

and electrical components to convey the tailings slurry from the

Springer Pit to the TSF, except for the pipeline, which shall be of a

size and rating as specified by the Contractor, and supplied by Owner.

Pursuant to Article 3 of the Agreement, MDG agreed that it would

perform the Work during the period commencing no later than March 1, 2018

with final completion by February 28, 2019.

[13] Regarding the background to the Agreement, the Arbitrator stated as follows:

[38]

The uncontradicted evidence of Don Parsons, the Chief Operating

Officer of Mount Polley’s corporate parent, was that so long as the tailings

remained in the Springer Pit it could not be mined and it was critical to Mount

Polley to carry out active mining operations in the Springer Pit to return the

mine to economic viability, a fact well known to the Claimant.

[39]

Mount Polley issued a Request for Proposal (“RFP”) dated January

10, 2017 to a number of proponents. MDG was not on the Mount Polley list of

invited proponents, but upon hearing of the RFP, asked to be and was

included in the process.

[40]

I accept the Respondent’s evidence that it issued a RFP because it

was not experience [sic] with dredging (as a general contractor might be

issuing requests for tenders of sub-contractors) and sought proposals from

experienced dredging companies with technical experience, specialized

capability and resources who would be in a better position to make their best

efforts to make a technical and financial proposal to attract the interest of the

requesting party with the possibility of being chosen to negotiate a contract.

[41]

The RFP invited the proponents “to submit your proposal for the

supply of labour, equipment and materials required for dredging the tailings

from the Springer Pit...in accordance with requirements” set out in the RFP.

The deadline for submissions was on or before 2 p.m. February 1, 2017. The

RFP included the following relevant instructions and guidelines:

a) A statement that “it is MPMC’s intention to consider the proposals

submitted pursuant to this process and to negotiate with one, or more

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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than one, of the Proponents whose proposals MPMC finds

favourable.”

b) A statement that “there is no guarantee or representation as to the

accuracy of the Request for Proposal documents.”

c) A statement that “MPMC is not obliged to request clarification or

substantiation of a proposal even if it is apparent additional

information is required. It is the Proponent’s responsibility to ensure all

required information is provided to MPMC.”

d) A statement in the Proposal Submission Guidelines at Part 3 of the

RFP:

3.2

ASSUMPTIONS AND CONSTRAINTS

a) Provide assumptions made in the development of the

proposal, specifically relating to any project timelines,

works, or Services to be provided by the Proponent and

MPMC not explicitly outlined in this Request for Proposal

and attached documentation:

e) A statement concerning pricing as follows:

3.5

PRICING

a) Pricing based on a cubic metre or per tonne basis;

b) Defined method for measuring payment, as per Section #2

article 6;

c) Standby rates and considerations.

f) A statement in Section 2, Scope of Work, at section 1.1:

1.1 PREAMBLE

The Mount Polley Mine is planning to relocate approximately 3.6

million cubic meters of tailings from the Springer Pit to the tailings

storage facility (TSF), a distance of 8.0 km. The methodology outlined

in this Scope of Work is that of a dredging system. The Proponent is

to supply all mechanical and electrical components to convey the

tailings slurry from the Springer Pit to the TSF, except for the pipeline,

which shall be supplied by MPMC based upon the system’s

requirements. Additionally, all free water reporting to the TSF must be

pumped back to the Springer Pit.

g) A statement in the Scope of Work at section 3.0:

3.0

SCOPE

The Scope of Work shall entail dredging up to 3,600,000 cubic meters

of tailings from the Springer Pit to the TSF.

h) A statement in section 3.1 “Specifications”:

3.1

SPECIFICATIONS

Total Volume to be removed:

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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 Up to 3.6 million m3 of submerged mine tailings and all water

required to re-animate and transport it.

i) A payment provision as follows:

6.0

PAYMENT

Proposals should be structured such that payment is based upon the

volume or mass of the solids transported. For the purpose of the

Proposal, solids density is 2.7 tonnes/m3; saturated unit weight of the

(is-situ) tailings is 1.85 tonnes/m3 (1.35 tonnes/m3 solid; 0.55

tonnes/m3 water). Tracking Systems are to be provided by the

Proponent and progress payments shall be made based upon

Tracking System results, so long as they can be reasonably confirmed

by MPMC to be accurate.

At the end of the project, a survey shall be completed by MPMC to

determine the final tailings geometry. This survey shall be compared

to the initial geometry, which will be completed prior to the start of the

Work (a current survey is provided). The volume of solids to be

removed will be determined and the average, in-situ bulk density will

be calculated based upon the reported mill tonnage that went into the

pit. Full payment shall be made less the sum of the progress

payments. If bid is based upon tonnage, the calculated Bulk Density

shall be utilized to determine the tonnage of the solid portion.

j) The Request for Proposal also contained a Schedule of Appendices

which confirmed that:

The following documents are enclosed:

 Springer Pit Profile (Sections)

 Tailings Pipe Curve

 Reclaim Pipe Curve

 Mount Polley Area Map

The Dispute

[14] The Arbitrator quoted from MDG’s description of the dispute that arose

between the parties:

[18]

In the Notice of Arbitration, MDG, in describing the nature of the

dispute, made the following statements which are relevant to the matters

dealt with at the hearing:

The procurement and Contract documents indicated that the tailings

which the Claimant was to encounter consisted of very loose tailings

with a high percentage of water content. The Claimant developed its

unit price for removal of the tailings on that basis.

…

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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In early April 2018, the Claimant discovered that the water levels in

the pit were higher than anticipated, such that “slimes” needed to be

pumped in order to actually access tailings in the pit which were to be

dredged. That the Claimant would need to pump slimes and related

materials was not indicated anywhere in the procurement or Contract

documents, which documents induced the Claimant to enter into the

Contract for its original contract price. On April 8, 2018, the Claimant

put the Respondent on notice of this issue. The Claimant and

Respondent then negotiated the claims but no settlement was

reached.

…

By June 2018, the Claimant became concerned as it was becoming

apparent that the composition of the tailings in the Springer Pit was

not as disclosed and represented to it in the procurement or Contract

documents. Instead of encountering the slurry-like tailings with a

high-water content, the Claimant found itself dealing with:

- tailings with a clay-like composition;

- larger grain sizes than anticipated; and

- contamination with rocks having a particle size 6-8 inches in

diameter.

…

The Claimant immediately gave notice of this issue to the

Respondent, and the Respondent was consistently and repeatedly

informed of this issue, and related issues, through the Claimant’s

weekly reporting on the Project.

…

[15] The Arbitrator also noted that MDG revised and further refined its claims in

the Claim. He quoted from the Claim, including paragraphs in which MDG alleged

actionable misrepresentations by Mount Polley, unpaid amounts owing under the

Agreement and wrongful termination of the Agreement by Mount Polley.

[16] The Arbitrator also quoted from the pleadings filed by Mount Polley in respect

of its counterclaim.

The Award

[17] Following the arbitration, the Arbitrator released the Award dismissing MDG’s

claims for misrepresentation and breach of contract including breach of “good faith

duty” and for liens under the Builders Lien Act, S.B.C. 1997, c. 45. The Arbitrator

found MDG liable to Mount Polley in damages for breach of contract due to

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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overbilling, failing to complete the scope of work and misrepresentations contained

in the response to the RFP. By agreement, the damages are to be assessed in the

next phase of the arbitration.

[18] The Arbitrator summarized the material evidence of each witness and he

made numerous findings throughout the Award. In submissions responding to the

petition, counsel for Mount Polley provided me with a summary of the Arbitrator’s

key factual findings.

[19] As they are described in MDG’s petition, I understand that MDG disputes the

correctness of some of the Arbitrator’s findings. However, I do not understand that

MDG disputes that the particular findings identified by counsel for Mount Polley were

actually made.

[20] In my view, the following list provided by counsel for Mount Polley accurately

summarizes the Arbitrator’s main findings:

a) MDG had no prior experience in dredging (Award, para. 1).

b) So long as tailings remained in the Springer Pit it could not be mined,

and the removal of the tailings was essential to returning the Mine to

economic viability, which was well known to MDG (Award, para. 38).

c) MDG was unknown to MPMC and was not invited to submit a

proposal, but became involved after it inserted itself in the RFP

process. MPMC issued an RFP because it was not experienced with

dredging and was seeking technical guidance from expert proponents,

which is the commercial purpose of an RFP, distinct from a tendering

relationship (Award, paras. 39-40, 226-229).

d) MDG visited the Mine before responding to the RFP, and was offered

an opportunity to look at and take samples of the tailings. It declined

this opportunity, even after it was told “the tailings were very hard to

deal with”, MDG’s representatives stating “it did not matter to the

dredges” (Award, paras. 43-45).

e) MDG did not identify any of the assumptions or conclusions it alleged

it subjectively drew on the basis of the alleged misrepresentations in

its response to the RFP, and there was no documentary evidence to

support Mr. Vergara’s after-the-fact assertions of reliance (Award,

paras. 51-52).

f) It was industry practice to state and incorporate such assumptions,

and each of the other bidders who responded to the RFP did so or

included other industry standard conditions. MDG did not. (Award,

paras. 59-61).

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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g) MDG did not prove the actual characteristics of the tailings, which it

claimed had been misrepresented to it (Award, para. 53).

h) The assumptions Mr. Vergara allegedly drew “had no basis in reality”

(Award, para. 54). Contrary to his ex post facto claims in litigation,

Mr. Vergara did not take any steps to include the alleged

“representations” in the Contract (Award, para. 68).

i) MDG’s proposal delivered in response to the RFP contained the

representations MPMC sued upon (Award, paras. 56-57). There was

no controversy these representations were made (Award, para. 259).

j) While the RFP was not incorporated into the Contract, MDG’s

proposal and its representations were (Award, paras. 65, 80-82).

k) MPMC relied upon these representations (Award, para. 145), and if

MDG had complied with reasonable industry practice it would have

acted consistently with the representations it had made (Award, para.

161).

l) Mr. Vergara, the only individual at MDG who had dredging experience

of any sort, had no experience dredging a tailings pond at a hard rock

mining pit (Award, para. 99). Fundamental errors were made by MDG,

which the Arbitrator found were the sole cause of its alleged

misfortune (Award, paras. 100-105):

m) There was no actionable misrepresentation communicated by MPMC

to MDG (Award, para. 142).

n) There was no “debate” within MPMC as to the composition of the

tailings (Award, para. 158).

o) “[F]or reasons unconnected with any perceived misrepresentation,

MDG was bound to fail in its performance of this contract because of

the failure to prepare, follow, or implement a detailed dredging plan,

use GPS and employ functioning density meters or dredging software

and technology which is accepted industry practice and failed to meet

a reasonable standard for a dredging contractor to ‘perform a detailed

site investigation of their own before bidding on a project. This should

include a site visit, questions about the material type, and taking their

own samples to [verify] material conditions before bidding’.” (Award,

para. 161).

p) Mr. Vergara and MDG did not actually draw the assumptions they

claimed were the product of a misrepresentation “until this dispute

arose”. In other words, they were a post facto invention. (Award, para.

170).

q) MPMC did not make the representations pled and advanced by MDG

- “I find as a fact that no representations were made either by direct

statement or by omission” (Award, para. 204, 208).

(emphasis added)

r) On the evidence accepted by the Arbitrator, MPMC could not

reasonably have foreseen that MDG would rely on the representations

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 12

alleged, or that the reliance of MDG would be reasonable in the

circumstances (Award, para. 207).

s) “Rather than evidence of negligence, the conduct of [MPMC] in the

RFP process demonstrates that it exercised reasonable care by

expressly warning the proponents that ‘there is no guarantee or

representation as to the accuracy of the Request for Proposal

documents’, and by inviting them to take samples and conduct their

own analysis of the materials, an opportunity that Mr. Vergara rejected

for the reasons described earlier in this award” (Award, para. 210).

t) MDG did not rely on the misrepresentations alleged to have been

made by MPMC (Award, para. 213).

u) If there was reliance, which was not proven, it would not be

reasonable reliance (Award, para. 219).

v) As a factual matter, including based on the language of the

documents in evidence before the Arbitrator, an RFP is not a contract

or tender (Award, para. 226).

w) “I found no evidence of bad faith conduct on the part of [MPMC] at all

in its dealings with MDG, let alone related to its performance of its

contractual obligations” (Award, para. 249).

x) “On the evidence”, the Arbitrator found each of the representations

MPMC sued upon, which MDG admitted it made, were false, and that

each of the elements of the Queen v. Cognos (JBOA, Tab 30) test

was satisfied (Award, paras. 259-261),

Analysis

[21] I will begin by considering MDG’s request for leave to appeal on the basis that

it has identified an error of law.

Has MDG met the statutory requirements for granting leave to appeal?

[22] The parties agree that the Act, not the current Arbitration Act, S.B.C. 2020, c.

2, is the governing legislation because the arbitral proceeding at issue was

commenced on March 13, 2020.

[23] MDG requires leave from the court to appeal a question of law arising out the

Award: s. 31(1)(b), Act.

[24] Subsection 31(2) of the Act provides that the court may grant leave if any of

the following criteria are established:

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 13

(a) the importance of the result of the arbitration to the parties justifies the

intervention of the court and the determination of the point of law may prevent

a miscarriage of justice,

(b) the point of law is of importance to some class or body of persons of

which the applicant is a member, or

(c) the point of law is of general or public importance.

[25] In Allard v. The University of British Columbia, 2021 BCSC 60 at paras. 14-15

[Allard], Justice Douglas discussed the high bar required for leave to appeal

established in the leading authorities and the intention behind it:

[14]

The test for leave to appeal an arbitration award is not easily met:

Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras. 38-40

[Sattva]. Courts must show due respect for the parties' decision to arbitrate

and the commercial arbitral process: TELUS Communications Inc. v.

Wellman, 2019 SCC 19 at paras. 54-56 [TELUS]. The modern "hands off"

view is that arbitration is an autonomous, self-contained, and self-sufficient

process where parties agree to have their disputes resolved by an arbitrator,

not the courts: TELUS, at para. 56.

[15]

The limited jurisdiction of courts to hear arbitral appeals promotes

efficiency and finality, the central aims of commercial arbitration: Teal Cedar

Products Ltd. v. British Columbia, 2017 SCC 32 at para. 1 [Teal Cedar]. As

noted by our Court of Appeal in Boxer Capital Corp. v. JEL Investments Ltd.,

2015 BCCA 24 at para. 3 [Boxer], commercial arbitration is intended to

provide a speedy and, in the vast majority of cases, final determination of the

parties' dispute.

The threshold requirement – identification of a question of law

[26] In Allard, at paras. 16-17 and 21, Douglas J. summarized the principles that

apply to determining whether a petitioner has met the threshold requirement for

leave to appeal of identifying a question of law arising from an arbitration award:

[16]

Identifying a question of law for appellate review is a threshold

requirement for granting leave: Arbitration Act, s. 31(1); Teal Cedar, at para.

1. This Court has no jurisdiction to review questions of either fact or mixed

fact and law. Delineating a question of law is particularly important in the

context of an arbitral review in BC "because it goes beyond the question of

standard of review to the very jurisdiction of the court to embark on the review

process": [MSI Methylation Sciences, Inc. v. Quark Venture Inc., 2019 BCCA

448], at para. 62. A court must grant leave only when questions of law can be

clearly perceived and delineated: Elk Valley Coal Partnership v. Westshore

Terminals Ltd., 2008 BCCA 154 at para. 17; Teal Cedar, at para. 45; Sattva,

at para. 54. Finding that the questions on appeal are not questions of law

wholly disposes of this Court's jurisdiction to review them: Teal Cedar, at

para. 42.

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

[17] Legal questions are questions "about what the correct legal test is".

Page 14

Factual questions are "about what took place between the parties". Questions

of mixed fact and law are about whether the facts satisfy the legal test" (i.e.,

the application of a legal standard to a set of facts): Teal Cedar, at para. 43;

Sattva, at para. 49; Canada (Director of Investigation and Research) v.

Southam Inc., [1997] 1 S.C.R. 748 at para. 35 [Southam]; Housen v.

Nikolaisen, 2002 SCC 33 at paras. 26-27.

…

[21]

Where the legal principle is not readily extricable, the matter remains

one of "mixed fact and law": Sattva, at paras. 54-55. The leave judge must

ultimately ensure that the proposed ground of appeal has been properly

characterised. Only questions of law or extricable questions of law will meet

the statutory threshold under s. 31(1) of the Act.

[27] In Hotel Georgia Development Ltd. v. The Owners, Strata Plan EPS849, 2021

BCSC 1236 at paras. 91-95 [Hotel Georgia], Justice MacNaughton considered an

application for leave to appeal brought by a petitioner following an arbitration. In

respect of the threshold question, MacNaughton J. noted as follows:

[91]

Questions of mixed fact and law are immune from appeal under s. 31

of the [Act] because they involve consideration of the factual matrix in which a

contract was formed.

[92]

The Supreme Court of Canada determined, in Sattva at paras. 47 —

50 and in Teal Cedar at para. 47, that the evolution of the approach to

contractual interpretation, means that, typically, issues of contractual

interpretation involve application of legal principles to a set of facts which

include the particular words of a contract, considered in light of the factual

matrix.

[93]

However, both Sattva and Teal Cedar explained that the application of

an incorrect legal principle, the failure to consider a required element of a

legal test, or the failure to consider a relevant factor, may give rise to an

extricable question of law: Sattva at para. 53 and Teal Cedar at paras. 63 —

64. If an arbitrator ignores a specific and relevant provision in construing a

contract, that would be a question of law that would be extricable from a

finding of mixed fact and law: Sattva at para. 64.

[94]

The errors alleged in HGD's petition track this language. However, as

Sattva warns at paras. 53-55, in seeking leave to appeal, aggrieved parties

often strain to frame alleged errors as questions of law. Extricable questions

of law are rare, and reviewing courts should be wary of parties trying to frame

a question of mixed fact and law as a question of law for the purposes of

reaching the high threshold for leave to appeal. A similar warning was

repeated in Teal Cedar at paras. 63-64.

[95]

I agree with the Residential Strata's position that the cases establish a

process to ensure that the threshold question in the [Act]— identifying a

question of law — is met first. To dive into the merits of an arbitrator's

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 15

contractual analysis, and consider whether the standard of review is

reasonableness or correctness, is to "put the cart before the horse". The

analysis must first be characterized as raising a legal question for review:

Allard v. The University of British Columbia, 2021 BCSC 60 at para. 39, citing

Teal Cedar at para. 60. To the extent that a review of the evidence is required

to make the argument that an error of law occurred, the error cannot be said

to be on the face of the award.

[28] In Chriscan Enterprises Ltd. v. St. Pierre, 2016 BCCA 442 at para. 29, the

Court of Appeal held that for purposes of granting leave to appeal from an arbitral

award, an error of law must be discernable “on the face of the award”:

[29]

The scope to appeal arbitral awards is narrow because arbitration is

intended to be an alternate dispute resolution mechanism rather than one

more layer of litigation. Thus, an applicant for leave to appeal must identify an

error of law on the face of the award, the standard of review in the context of

commercial arbitrations is almost always the deferential standard of

reasonableness, there is a discretion to deny leave even when an appeal is

technically permitted by the Act, and the normal 'palpable and overriding

error' standard does not apply to the arbitrator's factual findings, which are

"absolute": Sattva, at paras. 75, 85, 92 and 104.

[29] MDG states that the errors of law in the Award “relate to the law of negligent

misrepresentation, the law of contractual interpretation and the contractual duties of

good faith and honest performance”. MDG submits that the Arbitrator’s conclusions

that Mount Polley was not liable for negligent misrepresentation or breach of

contractual duty of honest performance and that MDG was liable for negligent

misrepresentation were “premised on errors of law”.

[30] To determine whether the Court has jurisdiction to grant leave to appeal, I will

begin by considering each alleged error to see whether MDG has identified a “clearly

perceived and delineated” question of law, or, a rare extricable question of law:

Allard at para. 16; and Hotel Georgia at paras. 93-94. Although MDG has listed six

individual alleged errors of law, I have considered them in two categories: alleged

errors relating to MDG’s claim of negligent representation, and alleged errors

relating to MDG’s claim of breach of the duty of honest performance.

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 16

The failure to find Mount Polley liable to MDG for negligent

misrepresentation

[31] The parties agree that the Arbitrator correctly identified and set out the

appropriate test for establishing negligent misrepresentation. The Arbitrator was

required to determine whether Mount Polley was liable to MDG for negligent

misrepresentation by way of direct statement, omission, or both.

[32] The Arbitrator considered MDG’s claim regarding Mount Polley’s alleged

misrepresentations before concluding that the “alleged misrepresentations, raised in

argument, are not proven”: Award, para. 204.

[33] MDG alleges that the Arbitrator erred in law by holding that Mount Polley was

not liable to MDG for negligent misrepresentation by omission arising from Mount

Polley’s failure to disclose “all reasonably material in its possession which may have

had a bearing on MDG’s response to the RFP” and its conduct after the parties

entered into the Agreement. MDG submits that the Arbitrator erred in law by:

(a) misapplying the duty of care analysis; (b) misstating and misapplying the law on

when an omission may constitute a misrepresentation; and (c) failing to consider the

elements of reliance in respect of MDG’s misrepresentation by omission claim.

[34] Counsel for Mount Polley submits that since the Arbitrator correctly cited the

test before finding that MDG had failed to satisfy “any of the five elements of the test

for actional misrepresentation”, MDG is actually arguing that the Arbitrator ought to

have reached a different conclusion as he applied the correctly stated legal test to

the facts. In other words, Mount Polley argues that MDG is essentially raising

questions of fact or, questions of mixed fact and law, and as such the Court lacks

jurisdiction to grant leave to appeal.

[35] In Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, at para. 45,

Justice Gascon warned that courts must, especially when faced with strategic

drafting designed to frame the issue as a legal question, remain alert to the

important difference between a party alleging that “a legal test may have been

altered in the course of its application” (which is an extricable question of law) and a

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 17

party alleging that “a legal test, which was unaltered, should have, when applied,

resulted in a different outcome” (which is a mixed question of fact and law). The

significance of that difference is that in the latter circumstance, the threshold for

leave to appeal will remain unsatisfied.

[36] MDG submits that “had the Arbitrator properly considered the elements [of

negligent misrepresentation] and the relevant evidence, each the elements would

have been established …”: Amended Petition, para. 142 [underline added]. MDG’s

submission confirms the need for vigilance and, in my view, it supports a conclusion

that MDG is raising a question of mixed fact and law because MDG’s complaint is

essentially that the unaltered legal test should have, when applied by the Arbitrator,

resulted in a finding that Mount Polley was liable to MDG for negligent

misrepresentation.

[37] First, MDG submits that the Arbitrator failed to properly apply “the duty of care

analysis necessary to establish the first element of negligent misrepresentation”. In

MDG’s view the Arbitrator did not consider whether the relationship between the

parties falls within, or is analogous to, an owner and tenderer relationship which is a

previously established category.

[38] Many of the authorities relied on for the proposition that Mount Polley owed

MDG a duty of care arose in the context of bidding and tendering situations. I was

directed to no authority stating that a party who issues a RFP owes a duty of care to

the parties who may receive or respond to it.

[39] In considering MDG’s contractual claims (which overlap with MDG’s negligent

misrepresentation claims), the Arbitrator discusses the legal framework surrounding

RFPs, as compared to a request for tenders. The Arbitrator notes that the

circumstance of a request for tenders typically creates a contractual relationship

between the party seeking tenders and the party who answers the request. The

Arbitrator also considers Guysborough (Municipality) v. Resource Recovery Fund

Board Inc., 2011 NSSC 15 at paras. 37-38 [Guysborough] where the court

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 18

distinguishes the RFP, with its mere “invitation to propose” and “very general

guidance”, from the creation of the “Contract A” resulting from a tender call.

[40] After reviewing the law, the Arbitrator concludes that the RFP issued by

Mount Polley does not form part of the Agreement between Mount Polley and MDG.

He reaches this conclusion after considering Powder Mountain Resorts Ltd. v. British

Columbia (1999), 47 C.L.R. (2nd) 32 (BCSC) at para. 72, aff’d 2001 BCCA 619 and

noting the express instructions to proponents contained in the RFP. It is clear that

the Arbitrator accepts the statement in Guysborough (at para. 38) that “the RFP

represented an invitation to propose and nothing more” to conclude that as far as

MDG and Mount Polley are concerned, there was no intention to create contractual

relations.

[41] MDG’s position is that the Arbitrator erred in the applying the duty of care

analysis by failing to consider whether the relationship between MDG and Mount

Polley falls within, or is analogous to, an owner and tenderer relationship which is a

previously established category. More specifically, MDG points to the Arbitrator’s

failure “to properly apply the body of law recognizing an owner’s obligation to

disclose all relevant information to proponents” both during an RFP process and

after the parties entered into the Agreement : Amended Petition, Part 1, para.

1(a)(i)(1) and (b).

[42] However, as I noted above, the Award makes clear that the Arbitrator

considered the differences between requests for proposals versus requests for

tenders, as well as the factual context that was before him, to conclude that the RFP

is not part of the Agreement and that Mount Polley owed no duty of care to MDG.

Although a failure to consider this step in the duty of care analysis could be

characterized as an extricable question of law, the petitioner has not established an

error on the face of the Award in this regard.

[43] Second, MDG says the Arbitrator misstated and misapplied the law on when

an omission may constitute a misrepresentation.

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 19

[44] MDG alleged that Mount Polley made negligent misrepresentations by

omission when it failed to disclose information, namely certain engineering reports

and surveys, related to the nature of the tailings listed in the RFP. MDG’s complaint

regarding the Award is that the Arbitrator “failed to apply all the components of the

test for negligent misrepresentation, in particular those related to representations by

omission, and failed to consider certain facts and ignored evidence that was relevant

to the application of the test”: Amended Petition, para. 90.

[45] However, it must be kept in mind that the Arbitrator found that Mount Polley

made no misrepresentations and MDG did not, reasonably or at all, rely on the

alleged misrepresentations.

[46] An Arbitrator’s conclusions as to whether misrepresentations were made and

relied upon are findings of fact: Kaiser v. Schuttler, 1999 ABQB 11 at para. 4;

McKay Career Training Inc. v. Baker, 2018 SKCA 83 at para. 20.

[47] In the Award, the Arbitrator considered MDG’s claims of misrepresentation by

omission and he dismissed the allegations, stating as follows:

[221] Two allegations of misrepresentation by omission relates to the

density in the water content of the tailings. The first allegation was that the

Respondent had a duty to inform the Claimant of the actual density and water

content of the tailings because numbers stated in the RFP were unreliable.

[222] The description of density and water content of the tailings in Article

6.0 of the RFP which I have held are not representations of fact but rather

representative values to be used only for the purposes of progress payments

this allegation that those figures were “uncertain” runs contrary to the

Claimant’s assertion that the Respondent had expressly represented a 1.35

dry bulk density and a 0.50 water content of the tailings. The allegation that

the numbers stated in the RFP were unreliable does not stand with my finding

that no such representation was made and that it would be unreasonable to

rely on those numbers.

[223] The second allegation related to two surveys in the possession of the

Claimant, the results of which directly contradicted the density in the water

content numbers stated in the RFP, at section 6.0 of the “Scope of Work”

titled “Payment” which were not disclosed.

[224] Both allegations of misrepresentation by omission are dismissed on

the basis that there was nothing stated in the Payment clause 6.0 of the RFP

which required clarification as that provision, as explained earlier, did not

convey a representation of fact.

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 20

[225] In the result, MDG’s claim for damages in negligent misrepresentation

is dismissed.

Award, paras. 221-225

[48] MDG submits that the Arbitrator focussed excessively on the contents of the

RFP without considering “the special relationship between owners and bidders that

is rooted in a fundamental policy in construction law … that owners cannot withhold

relevant information to bidders.” Again, I was referred to no authority stating that

“the general principles applying to the standard of care owed to bidders in

construction projects” apply in the context of a RFP.

[49] Third, MDG submits that the Arbitrator erred by failing to consider the

elements of reliance in respect of MDG’s representation by omission claim. MDG

says that it reasonably relied on “an unstated key assumption of MDG that Mount

Polley had completed a thorough analysis of the tailings prior to issuing the RFP”

because Mount Polley was a “tailings expert”.

[50] The difficulty with MDG’s submission on this point is that it conflicts with

numerous factual findings made by the Arbitrator, including his conclusion that

Mount Polley issued the RFP due to its dredging inexperience and because it

wanted technical guidance from expert proponents: Award, paras. 39-40, 226-229.

[51] As for MDG’s submission that the Arbitrator failed to consider evidence, the

Award discusses the evidence of both parties at length, including the expert

evidence. The Arbitrator sets out his detailed findings regarding the evidence.

[52] In my view, MDG’s submission that the Arbitrator failed to consider evidence

is really a complaint that the Arbitrator preferred the evidence of Mount Polley over

the evidence of MDG for reasons that the Arbitrator explained. This complaint is not

a basis for granting leave to appeal in the present circumstances.

[53] I am unable to accept MDG’s submission that it has identified a question of

law related to the Arbitrator’s holding that Mount Polley was not liable to MDG for

negligent misrepresentation by omission on any of the specific grounds raised. In

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 21

my view, it is clear from a reading of the Award as a whole, that MDG is raising

questions of fact or mixed fact and law which are not subject to review.

[54] For the reasons that I have explained, I find that the issues raised by MDG

essentially come down to” whether the facts satisfy the legal test", or, put another

way, the application of a legal standard to a set of facts which fails to meet the

statutory threshold for granting leave to appeal: Hotel Georgia at paras. 89-90. My

conclusion that MDG is raising only questions of fact or mixed fact and law is, in my

view, supported by the notable focus in its submissions on the particulars of the

evidence that was before the Arbitrator.

The failure to find that Mount Polley breached its good faith contractual

duty of honest performance

[55] MDG alleges that when the Arbitrator concluded that Mount Polley had not

breached its good faith contractual duty of honest performance he erred in law by

misapplying the legal test and by improperly limiting the scope of the duty of honest

performance to statements in the RFP documents.

[56] MDG agrees that the Arbitrator correctly articulates the law in respect of the

duty of good faith; however, MDG submits that following this correct articulation of

the law, the Arbitrator “did not include any further discussion of the principles that

apply”: Amended Petition, para. 147-148.

[57] A key concern raised by MDG in respect of this issue is the allegation that

after MDG alerted Mount Polley to the difficulties it was having dredging the tailings,

Mount Polley continued to withhold relevant information from MDG.

[58] The Arbitrator was aware of MDG’s allegations that Mount Polley withheld

information and after considering the evidence presented by the parties, he found

“no evidence of bad faith on the part of Mount Polley at all in its dealings with MDG,

let alone related to its performance of its contractual obligations”: Award, para. 249.

[59] At para. 251, before dismissing MDG’s contractual claims, the Arbitrator

refers to the relevant authorities and states as follows:

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

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[251] As I have noted that the RFP was not included in the Contract

Documents and accordingly was not incorporated into the contract. Further,

as the misrepresentations were not incorporated into the contract, it cannot

be said that Mount Polley failed to correct its misrepresentations, exposing it

to liability for reach of the contractual duty of good faith identified in Bhasin v.

Hrynew, 2015 SCC 71, [2014] 3 S.C.R. 494, C.M. Callow Inc. v. Zollinger,

2020 SCC 45 or Wastech Services Ltd. v. Greater Vancouver Sewage and

Drainage District, 2021 SCC 7.

[60] In light of these findings, it is clear that the Arbitrator considered and then

rejected the allegation raised by MDG that Mount Polley had knowingly misled it for

the reasons the Arbitrator explained.

[61] In my view, MDG is once again raising a mixed question of fact and law by,

essentially, submitting that despite the Arbitrator making a correct statement

regarding the law, it should have, when properly applied, resulted in a different

outcome on the issue of whether Mount Polley breached the duty of honest

performance. As such, the threshold is unmet and leave to appeal is not available.

Should the Award be set aside because MDG has shown that the

Arbitrator committed an arbitral error?

[62] Section 30(1) of the Act provides that an arbitral award may be set aside or

remitted where the arbitrator commits an arbitral error.

[63] In this case, MDG alleges an arbitral error in the course of an arbitration due

to the Arbitrator’s “failure to follow the rules of natural justice”: s. 1 “arbitral error”

(d), Act. More specifically, MDG describes the arbitral error as the Arbitrator’s failure

to set out his chain of reasoning for the conclusion that MDG owed a duty of care to

Mount Polley.

[64] In the context of an arbitration, which is a form of private dispute resolution,

the requirements of natural justice are described by our Court of Appeal in 0927613

B.C. Ltd. v. 0941187 B.C. Ltd., 2015 BCCA 457 at paras. 59-60, as follows:

[59]

Natural justice requirements in arbitration have been broadly stated to

require the arbitrator to act in good faith (or stated otherwise to be unbiased),

fairly listen to both sides, and to give a fair opportunity to those who are

parties to make representations, including to correct or to contradict any

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 23

relevant statement prejudicial to their view. See Kane v. Board of Governors

of the University of British Columbia, [1980] 1 S.C.R. 1105 at 1113; and

Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 at 195.

[60]

Natural justice will require an arbitrator to act with procedural fairness,

the requirements of which will depend on the subject-matter of the dispute,

the circumstances of each case, the nature of the inquiry, and the rules under

which the parties have agreed to arbitrate their dispute. See Zaleschuk Pubs

Ltd. v. Barop Construction Ltd. (1992), 68 B.C.L.R. (2d) 340 at para. 47;

Arbutus Software Inc. v. ACL Services Ltd., 2012 BCSC 1834 at para. 81;

and Farrar v. Bojan High End Kitchens Inc., 2013 BCSC 1881 at para. 24.

The duty of fairness is not a “one size fits all” requirement but is molded by

the circumstances of each case. Its most basic requirement is “simple

fairness” or “fair play in action”. See Canada (Attorney General) v. Mavi, 2011

SCC 30 at para. 42; Ridge v. Baldwin, [1962] 1 All E.R. 834 (C.A.) at 850,

Harman L.J., cited in Kane at 1113.

[65] Where a party alleges a breach of natural justice in respect of an arbitral

award, the applicable legal principles were recently set out as follows by

MacNaughton J. in Hotel Georgia:

[64]

On an application to set aside an arbitral award for a breach of natural

justice, the arbitrator is granted a high degree of deference, and courts

should not be concerned with the fairness or correctness of the award itself.

This is because the provisions for setting aside an award “deal with the

procedural matters, not the legal correctness of the decision”.

[65]

As explained in Mungo v. Saverino, [1995] O.J. No. 3021 at paras.

72—73, the courts will endeavour not to second-guess an arbitrator’s

decision on jurisdiction or procedural fairness grounds.

[66]

Justice Dickson, when a member of this Court, outlined the

requirements of natural justice in the arbitral context, and the recognized

breaches of natural justice, in Arbutus Software Inc. v. ACL Services Ltd.,

2012 BCSC 1834 at paras. 81—82. Natural justice requires an arbitrator to

act with procedural fairness and may require processes tailored to meet a

particular case.

[67]

The party alleging a breach of natural justice, in this case, HGD, bears

the onus of establishing the facts necessary to prove the breach.

[68] Where an arbitrator considers an approach to an issue that has not

been raised by either party, natural justice requires the arbitrator to give the

parties an opportunity to comment on the approach. The fact that a party

does not make sufficient use, if any, of the opportunity given by the arbitrator

is not a breach of natural justice and, accordingly, not a basis for setting

aside an arbitral award.

[69]

In this case, the Arbitrator sought submissions on the issue of his

ability to make a quantum meruit award.

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

[70] An arbitrator is required to give comprehensible reasons, but such

Page 24

reasons need not recite every submission and outline why every submission

was accepted or rejected.

[66] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador

Treasury Board), 2011 SCC 62 at paras. 14 and 16, Justice Abella noted, in the

context of judicial review, that the “adequacy” of the reasons is not a stand-alone

basis for quashing a decision and that reasons need not include all arguments,

statutory provisions, jurisprudence or explicit findings on each constituent element

leading to the final conclusion; rather, the issue is whether the reasons enable the

reviewing court to “understand why the tribunal made its decision and permit it to

determine whether the conclusion is within the range of acceptable outcomes”. At

para. 17, the Court also noted that the existence of a different interpretation of an

agreement to the one provided by an arbitrator does not automatically mean the

decision should be set aside.

[67] MDG referred me to Economical Mutual Insurance Company v. Intact

Insurance Company, 2021 BCSC 1772 [Economical Mutual] as support for its

submission that the Arbitrator provided no reasoning regarding the application of the

law to the dispute as to whether MDG was liable to Mount Polley for negligent

misrepresentation, especially in relation to the duty of care analysis.

[68] In considering whether the principles of natural justice had been complied

with in Economical Mutual, Justice MacDonald identified the problem with the

reasons of the arbitrator in the following terms:

[47]

Here, the Arbitrator provided no reasoning regarding the application of

the law to the dispute. He simply reviewed a number of cases and set out the

principles they stood for. He then stated his conclusion. In reaching his

conclusion, he did not demonstrate that he applied the legal principles to the

facts before him. There is no chain of reasoning to explain how the Arbitrator

made his Decision.

[48]

I appreciate that the Arbitrator stated that he reviewed the law as it

applied to the facts and considered the parties’ submissions. However, there

is no analysis provided so that the parties or this Court can understand how

he came to his conclusion. Specifically, it is unclear whether or not he

considered s. 148.1(9) of the Regulation, a central argument before him. It is

also unclear whether, since Economical was obliged to provide UMP

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 25

coverage pursuant to the BC legislative scheme, Economical “stepped into

the shoes” of ICBC in doing so. The parties should not have to guess or

speculate regarding how the Arbitrator came to his Decision.

[49]

The Arbitrator’s lack of analysis pertains to a central issue. In my

view, this renders the reasons inadequate. While the Arbitrator made findings

of fact and set out the legislative provisions and legal principles, he did not

apply the legislation and legal tests to the facts before him. By not applying

the legal tests to the facts when reaching his conclusion, the Arbitrator made

it impossible for the parties and a reviewing court to understand how and why

he reached his Decision. Essentially, the Arbitrator detailed the “what” of his

decision but not the “why”: Conmac Enterprises Ltd. at para. 71.

[50]

I find the Arbitrator failed to provide sufficient reasoning in his decision

and failed to consider all relevant legislation. His reasons do not enable the

parties and a court on appeal to determine how he reached his conclusion.

His lack of reasons and failure to address all the primary issues before him

results in a failure to observe the rules of natural justice: Arbitration Act, s. 1.

[69] In my view, the Award before me is distinguishable from the award under

consideration in Economical Mutual. In the present case, the Award contains ample

detail regarding the Arbitrator’s findings, his consideration of the relevant authorities

and his reasoning for deciding that MDG was liable to Mount Polley for negligent

misrepresentation, including with respect to the duty of care element.

[70] I have reached this conclusion because the Award, for example, sets out in

para. 40, the Arbitrator’s acceptance of Mount Polley’s evidence that it issued the

RFP seeking proposals from parties who would be better placed than Mount Polley

(in terms of technical experience and specialized capability/resources) to make a

technical and financial proposal for the dredging work.

[71] I agree with counsel for Mount Polley that as a result of this finding it is

reasonable to infer that the Arbitrator agreed the whole point of the RFP was to allow

Mount Polley to obtain and rely on the expertise of proponents who responded to the

RFP. This is not a situation, as was the case in Economical Mutual, where the

Award leaves the parties or the court unable to determine how the Arbitrator reached

his conclusion.

[72] I am supported in my assessment by the Arbitrator’s ample findings that MDG

made representations to Mount Polley that it was qualified, experienced and capable

MDG Contracting Services Inc. v. Mount Polley Mining Corporation

Page 26

of doing the work, which he concluded were misrepresentations that Mount Polley

had relied upon: Award, paras. 145, 259 and 261.

[73] For the reasons that I have explained, I do not agree with MDG’s allegation

that Arbitrator committed an arbitral error. As a result, I decline MDG’s request to

set aside the Award pursuant to s. 30 of the Act.

Disposition

[74] The relief sought in paras. 1-3 of part 1 of the Amended Petition is dismissed,

with costs to the respondent, Mount Polley.

“E. McDonald”