
2/25

Part

3:

ORDERS ON WHICH NO POSITION

IS

TAKEN

The application respondents take no position on the grantingof the none ofthe orders

sought in Part 1 of the notice of application.

art 4: FACTUAL

BASIS

Overview

1. The Piaintiff

has

not met any part of the three-part test for

an

injunction. The

Plaintiff purports to prove interference

with

its activities through contradictoryand

often unsourced hearsay and double hearsay.

The

Plaintiffs evidence of harm

and irreparable harm consists of inadmissible opinion evidence and the Plaintiffs

evidence is contradicted by four expert opinions filed by

the

Defendants. The

four expert opinions

filed

by the Defendants authoritativelydemonstrate that no

net loss to 80 Hydroor its ratepayers will arise from construction deiay.

he Parties

2. The Plaintiff 80 Hydroand PowerAuthority is a government corporation that

reports to the Minister of Energy and Mines.

3. On January 19,2016, the Piaintiff filed a Notice of Oivil Oiaim alleging that the

defendants have committed trespass and other torts, and seeking injunctiverelief

and

damages

4. OnJanuary 29,2016, the Plaintiff filed a Notice ofAppiication seeking an

interlocutory injunction. Including enforcement provisions, restraining the

defendants and anyone having notice of the order fromobstructing or interfering

with

the

construction of

th e

Site 0 Clean Energy

Projecf

until

the

trial of the

action, on broad terms set out ina draft Order InjunctionApplication ).

5. The Plaintiffhas set the InjunctionApplication down for a one day hearing on

February 22 2016

6. The application respondents Ken 8oon, Arlene 8oon, YvonneTupper, Helen

Knottand Esther Pedersen the Defendants ) are named as defendants in the

Notice of

Civil

Claim and

named as

respondents in

the

Injunction Application.

The remaining defendant, Verena Hofmann, is represented by separate counsel

and Is not participating in this application.

7. On February15,2016, the Defendants filed a jointResponse to Civil Claim


3/25

8. On February15,2016, the Defendants filed a Notice ofApplication seeking

various procedural reliefincluding an order aliowing the cross-examination of

MichaelSavidant;

an

order requiring document production of contracts, project

schedules and other documents relied upon by

the

Plaintiff; and an order striking

hearsay and opinion evidence.

On

the material

issue of whether the

Defendants

t respassed

or interfered with

the

Plaintiffs

activities

the Plaintiff relies almost entirelv o n h ea rs av

evidence

9.

The

Plaintiff relies almost entirely on

hearsay

affidavit evidence on

the

material

issue of whether

th e

Defendants

trespassed

or interference with

the

Plaintiffs

activities. On that issue,

the

Plaintiffoffers only two affidavits containing hearsay.

10.Affidavit 1 of Patrick Hayes, swom January

29 2016

( HayesAffidavif) is given

by

one

of

the

Plaintiffs counsel team insupport of his client's Injunction

Application. The Hayes Affidavit is tendered primarily to demonstrate that

the

Respondents trespassed or interfered with the Applicant's activities.

11.The Hayes

Affidavit

is entirely unsourced hearsay.

Mr.

Hayes provides no

evidence as to how

the

exhibits to his affidavit

were

compiled, or by whom. In

some cases the

Hayes Affidavit is unsourced double hearsay. One cannot

ascertain, upon reading the Hayes Affidavit, whether

Mr.

Hayes personally

conducted online investigations leading to the discovery of news media articles

and Facebook posts. Mr. Hayes does not aver that he personally located this

information online, and, if

he

did

so when he

did

so

It is

reasonable to

conclude

that other people located the information onlineand provided

Mr.

Hayes

with

copies.

12.The Affidavit 1 of Douglas Powell,sworn January28 2016 ( Powell Affidavit is

tendered for

the

purpose of demonstrating that

the

Defendants trespassed or

interfered with the Plaintiffs activities

13.The PowellAffidavit is almost entirely hearsay. Mr. Powell relays observations

that he alleges were made by security contractors on the Site C project site. In

paragraphs 7-68

and

72-91 of his affidavit,

Mr.

Powell relays observations that he

claims were made by other people. Exhibits

B-BB

comprise recordings, in note

and

video form, of those observations said

to

have been made by

other

people.

14.With the exception of paragraphs 69-71, Mr. Powell

made

none of these

observations himself. He has no direct knowledge of

the

Respondents' or

security contractors' activities.

Mr.

Powell relies on verbal statements and on

daily shift reports, ofevents that he himselfhas not witnessed, that have been


4/25

provided to

him

bysecuritypersonnel. Heavers that he refersto these reports

for

the

truth of th e facts set out in

those

documents [Powell Affidavit, para 8].

15.

Video

recordingssupplement, insome instances, the reports provided by

Mr.

Powell's informants. However, th e Plaintiff ha s chosen to

pu t

only some of th e

video recordings made bysecurity contractors into itsevidence on the Injunction

Application,

ithas withheld others videos taken bysecuritystaff

from Exhibit

Bto

the Powell Affidavit [Powell

Affidavit,

para. 7].

16.

S o m e

of

th e

videos

within Exhibit B to

the Powell

Affidavit

a r e inconsistent

with

or

do not support the claimsmade bysecurity staff intheir dailystaff reports or their

verbal statements to Mr. Powell. In his affidavit, Mr. Powell does no t a d dr es s o r

explain

these

inconsistencies.

17.There is no evidence that

th e

peoplewho allegedly made

these

observations,

and that wrote daily reports ormade video recordings,were unable or

unavailable to provide direct evidence.

O n

the material i ss u e o f whether th e Respondents t r es p a ss e d o r interfered with the

Applicant s activities th e

Applicant

also

reiies

on unsourc e d hearsav

18.Inadditionto the Hayes

Affidavit

and

Powell Affidavit,

three additional affidavits

relied on by the Plaintiff in its application contain hearsay on the material issue of

whether the Defendants trespassed or interferedwith the Plaintiffs activities.The

hearsay evidence inthe three affidavits on this issue is unsourced.

19.TheAffidavit 1 of Cameron Penfold, affirmed

January 28 2016

(Tenfold

Affidavit

contains unsourced hearsay on thismaterial Issue.

20.Atparagraphs 7-10 ofhis

affidavit,

Mr. Penfold uses the defined term Clearing

Contractor , without ever identilying the person or the company to which he is

referring

to. Mr. Penfold givesevidenceabout actions taken and reported bythis

unidentified Clearing Contractor. Among other things, he claimsthat

two

Individuals stood infront of a machine on

January

4 2016. However, Mr.

Penfold did not witness this alleged event, and he does not identify th e source of

his information

an d

belief as to this alleged event.

21.There is no evidence that

th e

unidentified people who provided Mr. Penfold with

the informationat paragraphs 7-10 were unable or unavailable to provide direct

evidence. Further, incontrast to paragraphs 7-10,

at

paragraphs 11-12 of his

Affidavit,

Mr.

Penfold identifies a source of

th e

latter information.


5/25

22.Atparagraphs 14>16 of his affidavit, Mr. Penfoldoffersopinionsbased upon

hearsay evidence of his discussions withthe ClearingContractor . Again, he

never identifies th e Clearing Contractor or any actual person whom he allegedly

had

these

discussions. At paragraph 16, he

reaches an

opinion

based

upon

hearsay discussions with unidentified persons.

23.At paragraph 17 of his affidavit,

Mr.

Penfold avers that:

17 Iam informed by the General Manager of

the

Clearing Contractor,

and verily believe, that

as

a result ofthe presence of persons inthe Lower

Reservoir

Area

interfering with

the

work under

the

Clearing Contract

(shown in Drawings 1 to 4 of

the

Clearing Contract),

a) the ClearingContractor has been unable to conduct clearing or

access

development under

the

Clearing Contract

as

planned;

b) since January

4 2 16

the Clearing Contractor has not received

any revenues for clearing or

access

development under the

Clearing Contract;

c) the clearingcontractor has fourteen pieces ofequipment

standing by (including the three pieces of equipment which have

been

moved across

the

MoberiyWinter Bridge),

as

well as

supervisors, labourers and support staff waitingand available to

perform the work.

24.In so testifying,

Mr.

Penfold givesevidencebased onan unidentified source. He

againdoes notdisclosewhothe Clearing Contractor is orwhoitsGeneral

Manager is. Hedoes not indicate that he believes it is necessary to keep this

person's name confidential. There is no evidence that the General Manager,

whoever he or she is,

was

unable or unavailable to provide direct evidence of

the

hearsay statements at paragraph 17.

25.The Affidavit 1 of Andrew Watson, affirmed

January 29 2 16

( Watson

Affidavit

contains unsourced hearsay on this material issue.

26.Atparagraph56 of his

affidavit,

Mr.

Watsongivesthis double hearsay evidence:

56 I am advised by Doug Powell, BCHydro Safety and Securitywho

has been to the camp se t up bythe Defendants on the south bank, that the

location ofthe camp as plotted byBCHydro security personnel, usingGPS

coordinates, lies directlyin the path where the retention dike

will

be

built.


6/25

27.At paragraph 56,

Mr.

Watson gives information from

Mr.

Poweli, who himself

based the

information he gave Mr. Powell on GPS plotting done by others.

Neither Mr.

Watson

nor Mr. Poweli affixes that GPS work,

conducted

by

unidentifiedBCHydro security personal, to their affidavits. The Defendants

are

leftunable to

assess

the accuracy of those GPS coordinates.

28.There is no evidence that Mr. Poweli was unable or unavailable to provide this

information, including the GPS work, as direct evidence.

29 The

Affidavit 1 of Siobhan

Jackson

affirmed January

29 2016

( Jackson

Affldavif) contains unsourced hearsay on this material issue.

30.Atparagraphs 23 and 24 of her affidavit, Ms. Jackson avers that:

23 ... Iam advised by Doug Powell, Manager of Safety and Security

for the Project, that the two cabins and other temporary structures erected

bythe protestorsat the

Rocky

Mountain Fortsite, including firepits and

holes that have

been

dug,

are

located withinand around BlockE and

directly in the wayof the future archeological work

at

the site.

Now

producedand shown to me and markedas

Exhibit

G is a map showing

the locationof BlocksA to G (as identified byGolder), overlaid

with

the

locationof the camp area and cabins erected by

the

protestors that was

prepared bya memberofthe Project'sGIS (mapping) group undermy

supervision.The camp structures have been plotted using GIS

coordinates collected by BCHydrosecurity personal who visited the site

on January 14,2016.

24 I have provided a copyof the overlay map (attached as Exhibit 'G )

to

D Arcy

Green (Senior

Archeologist, Golder),

and he advises me that all

of the camp infrastructure

would

need to be removed to complete the

archaeological work in BlockE.

31

.Atparagraph23, Ms. Jackson givesas hearsay

opinion

evidence the

views

of

Mr.Poweli. She tenders Exhibit G without identifying the person who prepared it.

Further,

Exhibit

G is itselfsaid to be based upon GISworkdone by unidentified

BC Hydro security personnel,

which

GISwork iswithheld

from

evidence.The

Defendants are left unable to

assess

the accuracy of

those GPS

coordinates.

32 There is no evidence

that

Mr. Powell

was

unable or unavailable to provide direct

evidence of his opinion that structures

are

directly in the way of future

archeological

work

at the site, orwas

unable

to

provide Ms.

Jackson

with

the

GSP work underlying Exhibit G.


7/25

33. Atparagraph 24, Ms. Jackson gives

as

hearsay opinionevidence the opinion

of

Mr

Green.

Mr

Green s alleged opinion is stated by Ms. Jackson to

be based

on Exhibit G, the document prepared by unidentified BCHydrostaff that itself

was based

on

the

undisclosed GIS work of unidentified security personnel.

There is no

evidence

that Mr.

Green

was unable or unavailable to provide direct

evidence of his opinionthat ail camp infrastructure would need to be removed to

complete archaeological work in Block E.

Facts relevant to the failure

t o e n fo rc e

the Land Act

34.

The

Plaintiff

and the

Ministry

of

Forests, Lands

and

Natural Resource Operations

have failed to take any appropriate steps to pursue statutory remedies. The

Ministry

of Forests, Lands and Natural Resource Operations is the

ministry

responsible for administering and enforcing

the

Land

Act

35.The Defendants have a right to be present on Crown land.

36.Neither

the

Plaintiffnor

the

Ministry of Forests, Lands and Natural Resource

Operations has ever

notified

the Defendants that they are trespassing under the

LandAct or othenA/ise contravening

the

Land

Act

37.The Ministry of Forests, Lands and Natural Resource Operations does not take

the position that the Defendants presence at the

Rooky

Mountain Fortsite is

unauthorized under the LandAct On January 20 2016 in an email to an

employee ofthe

Plaintiff

a

Ministry

employee

would

only

take the

position

that

the

structures that have

been

erected at

the

protest

camp have

not

been

authorized

38.The structures at the Rocky Mountain Fortsite are one small cabin placed at the

site on December

31 2015

a covered tent area created by a tarp,

and

another

small cabin placedat the site In mid-January 2016.These twocabins are small

not fixed to the ground, temporary and very simple.

39.Ministry staff have never communicated to the Defendantstheir

position

that the

structures

are

unauthorized

under

the

Land

Act

The Respondents have

not

been toldbyeither the Applicant or the Ministry that Ministry staffdetermined that

the

structures

are

unauthorized

under t he L an d

Act

40.The Plaintiff has not posted any signs that are compliant with the LandAct

limiting access to the

Rocky Mountain

Fortsite or adjacent Crown lands. Ithas

not posted any signage advising that access to that sitewas

limited


8/25

41.The Plaintiffssecurity contractors posted a sign

at

the site on December 31,

2015. However, that sign did not say that peopie could not be present at the

RockyMountainFort site or that

access

to the site was limited. That sign did not

direct anybody to vacate or stay offthat Crown land. Itdid not say that peopie s

presence on Grown land

was

unauthorized.

42.The December 31,2015 sign did not direct a sheriff or a pubiicofficerto seize

any improvements, goods, chatteis or othermaterials. The signdid not state any

timeor place ofany contravention ofthe Land

Act,

did not state any detaiis of

any contraventionof the Land

Act,

and did not othenvise compiy with s. 59(2) the

Land ct

43.The Defendants have not been notifiedof any aiieged La/idiAcfviolations in a

manner consistent

with

s. 59(1) ofthe LandAct They were not served

with

any

Land Act notice inperson or by registered mail.

44.

The

Ministry

of Forests, Lands and

Natural

Resource Operations has numerous

processes

place forreporting anymisuses of

Crown

landto Natural Resource

Officers

with

its Compiiance and Enforcement Program, including trespassing

and constructing unauthorized structures on

Crown

iand.These processes

include electronic reporting forms, the Natural Resource Violation

reporting iine,

and other

avenues set

out in a brochure providing guidance on reporting

vioiations

to

Natural

Resource Officers

45.Neitherthe Plaintiff nor the

Ministry

of Forests, Lands and Natural Resource

Operations has madeanyeffort to apply the enforcement

provisions

oftheLand

Act The Plaintiff has not asked the Ministry or its enforcement staff to enforce s.

60 against the Defendants, by

following

anyofthe Ministr/s processes or

othenvise

46.The Ministry has made no independent effort

itself

to enforce the LandAct

against the

Defendants,

despite being aware ofthe structures at the Rocky

Mountain Fort site [Thome

Affidavit,

Exhibit

A].

47. Further,the Plaintiff has not asked the Minister of Forests, Lands and Natural

ResourceOperations to delegate to the

Plaintiff

the powerto enforcess. 59and

60,oranyother

provisions

oftheLandAct Under s. 97 ofthe LandAct, the

Minister

maydelegatethe power toact onthe

Minister s

behalf respecting anyof

theminister s powers or functions underthis

Act

to a government corporation as

defined in

the

FinancialAdministrationAct The Applicant BCHydro is a

government corporation as thatterm isdefined in theFinancial Administration

ActTheApplicant isan agent ofthe govemment under s. 3 oftheHydro and


9/25

PowerAuthorityAct, RSBC1996, c 212; its powers may be exercised oniyas an

agent of the government The government is the Applicants sole shareholder.

The Applicant Is controlled by the

government

The

Plaintiff

has failed to demonstrate Harm and

Irreparable

Harm

48. The Plaintiff

has

failed to demonstrate harm

and

irreparable harm. The PiaintifPs

evidence of irreparable harm is set out in theAffidavit 1 ofMichael Savldant

affirmedon January

28 2016

( SavidentAffidavif).

49. The SavidantAffidavit is unqualified opinion that does not comply with Rule 11,

and is based upon contractual dccuments that have been withheldfrom

evidence

50.The SavidantAffidavit is controverted inmaterial respects by four expert

affidavits tendered by the Defendants, namelyAffidavit 1 of Robert McCuilough,

affirmed February 9,2016 McCuilough Affidavif), Affidavit 1 ofDr. Man/in

Shaffer, affirmed February 10,2016 ( ShafferAffidavit ), Affidavit 1 ofPhillip

Raphais, affirmed February11,2016 ( Raphals

Affidavit )

and

Affidavit

1 of

MarcEiiesen, affirmed February 14 2016 ( EiiesenAffidavit ) (collectively, the

Defendants' Expert Evidence ).

51 .Specifically,

the SavidantAffidavit estimates the cost of

delaying

construction for

one year at $420 million [SavidentAffidavit, paras.

4-5].

The Defendants' Expert

Evidence contradicts this conclusion.

Mr.

McCuilough, Dr. Shaffer, Mr. Raphais

and Mr. Eiiesen have the advantage over Mr. Savidant of actually being experts,

and their affidavitscomplywithRule 11.

52.The Respondents' Expert Evidence demonstrates that a delay inconstruction

activities would no t result in a net financial

cost

to the Plaintiff or its ratepayers

Forexample,

as

put bythe ShafferAffidavit:

Todemonstrate that a delay inconstruction and the in-service date ofSite C

would result in a net cost to BCHydro,

Mr.

Savidantwould have had to

compare the cost Impacts ofdelay that he has

identified in

his

Affidavits

with

estimates of the benefit that BCHydro would realize fromthe deferral of

expenditures

with

a

revised

schedule

for

SiteC. The

Affidavits

do not

provide

such a comparison. Consequently, the

Affidavits

do notdemonstratethat

there would in fact a

net

cost


10/25

53.Further

the

Defendants' Expert Evidence, and in particular

the

McCullough

Affidavit demonstrate that a delay in construction activitieswould result ina

net

financial benefit to

th e

Plaintiff and Its ratepayers.

54.

Mr.

McCullough concludes that a delay in construction of the Site 0 project, and

corresponding delay of the in-service

date

of the project, would amount to a

net

savings to British Columbia. He estimates the

net

savings of a one year delay, in

present value terms, would

be

267.68million; he estimates the net savings of a

twoyeardelay at 519.44 million; and he estimates the net savings of a fiveyear

delay at 1,187.47million. Given the magnitude of these savings, inclusion of

ongoing costs of delaywould almost certainly result in the

same

conclusion

[McCulloughAffidavit, Exhibit B, p. 33].

55.Additionally, Dr. Shaffer concludes that the benefit of deferring remaining

expendituresfor fouryears

would

be inthe order of 0.9 billion to over

1.1

billion. Depending on the additional project costs of such a delay, that suggests

that a four year (or longer)delay inthe development of the Site C projectcould

result in significant savings and net benefits for BCHydro and its customers

[ShafferAffidavit Exhibit D, p. 35; see also ElisenAffidavit para. 15]

56.As adjudication of irreparable harmand the balance ofconvenience requires

findings offact in respect ofthe net costs and benefits of constructiondelay, the

Defendants have sought leave to cross-examine

Mr.

Savidant on his affidavit

[Defendants' Notice ofApplication forvariousprocedural relief filed on February

15,2016]. Cross-examination ofMr. Savidant is likely to yield further evidence

that will be ofassistance in determining the contested issue of the anticipated

costs and benefits of delays in construction of

the

Site C project.

The

Plaintiffs

Omit

Kev Documents from their Affidavits

57.The Defendantsomitkeydocuments, uponwhichthey relyheavily from their

Affidavits. Noexplanationfor these omissions is givenby the

Plaintiff.

8 ThePlaintiff

has

omitted from its affidavits a complete copy of

the

Clearing

Contract and a complete copy of

the

MainCivil Works Contract , including parts

of the Main Civil Works Contract that govern the project schedule and delay and

liquidated damages provisionsin the contracts. The Clearing Contract and Main

Civil Works Contract are central to this application; three of

the

Plaintiffs affiants

rely

on them.^ The

Plaintiff

relies heavily onthese contracts

in

itsNotice of

Civil

Claimand NoticeofApplication, and in its affidavitmaterials.

1.

With

respect to theMain Civil WorksContract, twoof the Plaintiffs affiantsreferto or

rely

upon

the MainCivil Works Contract in their affidavitevidence [Watson Affidavit paras. 26-27 and 60-62;


11/25

59.The contractual and regulatory scheduling documents are expected to have

significant probative value for the issues of irreparable harm and balance of

convenience. If

the

contracts do not require what

the

Plaintiffclaims they require,

or if

the

contracts include terms that contemplate delays of the type complained

of by

the

Plaintiff, the Plaintiff

will

not be able to demonstrate irreparable harm.

60.Forexample,

at

paragraph 61 ofthe Watson

Affidavit

Mr.

Watson opines and

speculates that

changes

to construction plans:

would be considered a significant change to criticalpath activities

set

out

in BCHydro s contractwith PRHP and therefore PRHP is likely to claim

additional costs. In particular, this change would cause acceleration of

otherwork, re-planning logistics and re-allocating equipment, labour and

associated resources in order to

meet

its contractual obligations related to

critical

path activities. BCHydro expects the cost of a change of this

magnitude

would

have to be negotiated

with

PRHP.

61.This speculative evidence at paragraph 61 is based upon the contractual

obligations in

the Main

Civil Works Contract. Those contractual obligations have

not

been

disclosed in full or in material part by

the

Plaintiff on this application.

62. Further,

the

Plaintiff

has

withheld both contractual and regulatory evidence about

the project schedule fromevidence. Ithas pleaded reliance on and its

preliminary

construction schedule

from

itsEnvironmental Impact Statement; this

preliminary construction schedule was not included in the project s Environmental

Assessment Certificate issued inOctober 2014 [Watson Affidavit, Exhibit

D].

63. Further, after

that

Certificate

was

issued, the provincial government

made

a

decision in December2014 to revise

the

project schedule.

The

Plaintiff submitted

a revised project schedule to provincial regulators inMarch2015. The revised

construction schedule was submitted to provincial regulators inMarch 2015 in

AppendixAto the Applicant s Construction

Activity

Plan - DamSite Area and

Moberiy

River. The Plaintiff has excised Appendix A from the exhibit containing

the Construction Activity Plan and none of its pleadings or affidavits in the

Injunction

Application mentionthe revised project schedule submitted to

provincial regulators [Watson Affidavit Exhibit J, pp.

7 and

290].

Savidant

Affidavit

paras.

4-11].-With

respect to the Clearing Contract, relianceis foundin the

Watson

Affidavit

paras. 25 and 57-59,the Savidant

Affidavit

paras. 4-11, and the Penfbid

Affidavit

paras. 5 and 17.


12/25

64.The ConstructionActivity Plan recognizes that the constructionschedule may

change or be delayed, based on permitIssuance, weather or other Project

changes

65.Rather than disclose the project schedules submitted to regulators, the Plaintiff

relies on unsourced, self-serving hearsay for evidence of Its project schedule. At

paragraph 24 of his affidavit,

Mr

Watson purports to tender a map

at Exhibit

S.

He claims that the schedule of the clearing Is more speclflcaily shown on

the

map that Is nowproduced and shown to me and marked as

Exhibit

S .

Mr

Watson

does

not Indicate

the

source of this map. He remains silent on who

created the map, forwhat purpose, or howhe obtained it. Indeed,

Exhibit

S is

dated January 29,2016, the same day that

Mr

Watson affirmed his

affidavit

These facts create

the

Impression that the map

was

created only to bolster Mr

Watson s claim, otherwise unsupported by the evidence filed by

the

Plaintiff, that

there exists a specific, fixed clearing schedule .

66.The evidence Is to the contrary, even on the Incompletecontractual evidence

provided to date bythe Plaintiff The ClearingContract expressly contemplates

that clearing workmay not be completed byMarch 31,2016,

In

which case the

Parties

will

meet to reviewprogress on the work[Penfold

Affidavit

ExhibitA,p.2].

67.To remedy these omissions, the Defendants have sought an order requiring the

Plaintiff to produce three types ofdocuments relevant to Irreparable harm and the

ba lan ce o f convenience

a. contracts relied upon by the

Plaintiff

which are referenced Inthe Plaintiffs

affidavits and Its Injunction Application, but that Ithas notdisclosed.

Including

but not

limited

to complete copies ofthe ClearingContract and

the Main CivilWorks Contract;

b. portionsof regulatorydocuments containing project construction

schedules, which portionswere excised fromthe Plaint iffs exhibits;and

c. documents referred to or relied upon by Andrew Watson In giving his

evidence regarding waste rock storage at paragraph 23 of his Affidavit

68. The Plaintiffs construction activities

will

destroy old growth

and

near-old growth

forests on th e

south

bank

of

the Peace River, In the Lower Reservoir Area

The Adminis tra tion o f Jus ti c e

69.There

are

currently three appeals and

one

judicial review underway Infour

separate legal proceedings challenging the environmental assessment decision


13/25

and allegingbreaches ofthe dutyto consult First Nations regarding the Site C

project.

70.The

Peace

Vailey LandownersAssociationhas appealed to the

British

Columbia

Court ofAppeal the decision of Justice Seweli of this Court, reported at Peace

Valley LandownerAssociation v.British Ck lumbia (Environment), 2015 BCSC

1129. Itsappeal is scheduled to be heard onApril 4 and 5,2016. The strength of

the

Peace

VaileyLandownerAssociation s appeal Is evident fromthat party s

factum

71.A judicial reviewof the licences issued

has

been argued in the

British

Columbia

Supreme Court bythe West

Moberly

First Nations and Prophet RiverFirst

Nation.

Arguments concluded on February2,2016, and reasons are under

reserve. The issue Iswhether the Province breached a Consultation Negotiation

Agreement byproceeding to issue licences without negotiating a consultation

agreement

with

the

First Nations.

72.

The West

Moberly First Nations and Prophet River First Nation have appealed to

the

British Columbia Court ofAppeal the decision of Justice Seweii of this Court,

reported at ProphetRiverFirst Nationv.British Columbia (Environment), 2016

BCSC1682. This appeal is not yet scheduled.

73.TheWest

Moberly

First Nations and Prophet RiverFirstNationhave also

appealed a decision ofthe Federal Court, reported as ProphetRiverFirstNation

Canada (Attorney

GeneraO

2015 FC1030, to the Federal CourtofAppeal.

Their

appeal

is not yet scheduled.

Pa r t s :

LEGAL BASIS

1. The Plaintiff

has

not satisfied

the

three>step common law

test

for

an

interlocutory

injunction:

RJR MacDonald

Inc v. Canada (AttomeyGeneral), [1994]1 SCR

311

The

Applicant

has

no t

t endered

anv non hearsav ev idence

o f

a se r iou s i s sue

2. The first question to be addressed inthe test for an interlocutory injunction Is

whether

there is a serious

issue

to

be

tried: RJR - MacDonald

Inc

v.

Canada

(Attomey General), [1994] 1

SCR

311.

3. The Plaintiff pleads that there is a serious issue ofwhether the Defendants have

committed torts and other legai wrongs by interferingwiththe Plaintiffs rightto

clear

trees

in the Lower ReservoirArea of th e Site C project.

3


14/25

4. However,

the

Plaintiff

has

tendered no direct evidence of

the

Defendants aiieged

behaviouror activitiesat the

Rocky Mountain

Fortsite. The onlyevidence that

the Plaintiff has providedof the Defendants activities is hearsay evidence,

including unsourced and double hearsay.

5. In the case ofthe Powell

Affidavit,

Mr. Powell s hearsay evidence is partial,

unreliable and inaccurate inmaterial respects. His evidence describes shift

reports or verbalstatements given to him bythe Plaintiffs contractors, which

reports and statements are often inconsistent

with

or unsupported byvideo

footage taken by those contractors. Further,that video footage is incompleteand

selective. Hishearsay evidence is also unnecessary, as the Plaintiffs contractors

who made direct obsen ations are surely able to give direct evidence.

The Court

should

aoolv Litchfield and decline

to

relv on hearsav

evidence

on

the

issue

of

whether the Defendants have

trespassed

or interfered

with

the Plaintiffs

activities

6. The Court should disregard hearsay evidence on the material issue ofwhether

the Defendants have trespassed or interferedwith the Plaintiffs activities.

7.

While

litigants are permitted bythe Rules ofCourtto relyon hearsay evidence on

an interlocutory application, this rule ismore nuanced on

injunction

applications : P.O. v.

British Columbia^

2010

BOSC

290.

8. The Defendants relyon the Court s decisions inLitchfield v.

Darwin

(1997), 29

BCLR

(3d)203 BCSC and inLeSoieiiRestaurant inc.et ai

v. NomanI

et ai,

2005 BCSC

1804. in those decisions, the Court refused to grant interlocutory

injunctions due to concerns about the applicants heavy reliance on hearsay

affidavit evidence

9. In

Litchfieid,

DeWeerdt J. dismissed an application for an interlocutory injunction.

Hedid so for the reason that itwas sought only on hearsay, and

the

applicant did

not

show

that evidence from original

sources was

unavailable. He held that, while

the Rules of Court permit litigants to relyupon hearsay on an interlocutory

application for an injunction, a judge hearing such an application must still

exercise his or

her

discretion

as

to whether Injunctive relief should

be

granted on

the basis of hearsay. He heldthat itshould not:Litchfield v.Darwin (1997),29

BCLR(3d) 203 (BCSC) at paras. 4-6.

10.The Litchfieid6ec\s\on

was

applied and elaborated on in Le Soieii Restaurant

inc.

et

ai v. Nomani et ai,

2005

BCSC 1804. Justice Baliance refused to grant an


15/25

interlocutory

injunction where substantiaiiy all ofthe applicant s evidenceon a

material issue was hearsay or double hearsay. For the Court,she held that:

o It is always a matter of

Judicial

discretion

as

to whether an interlocutory

order ought to be admittedon the basis of hearsay evidence (para 47);

o Double hearsay should never be admitted (para 47);

o Affidavits on information and belief may not be

used

in all circumstances

(para 47);

o Utchfield does not stand for the proposition that the court ought to decline

to grant an interlocutory injunction onlyin circumstances where all ofthe

evidence presented is hearsay. The vital point identified by

the

court

inUtch^eld was that the pertinentmaterial and facts in issue did not go

beyond statements based on information and belief (para 49);

o Itis especially problematicto relyonlyon hearsay

so

when terms of the

proposed injunction are expansive, such the

plaintiffs would

ineffect, be

given substantially ail of the benefits of a judgment at trial

as

against the

defendants

Such a far-reaching

outcome

should

alert

the

court

to

exercise extreme caution inadmitting

hearsay

on pivotal

issues

especially

where there is no compelling reason given for the omission of

the

evidence from

the

original

sources

(para 52);

o Injunctive relief is drastic and extraordinary, such that the court ought to

receive direct evidence on essential facts in dispute on interlocutory

applicationsof this kind wherever it is reasonably practicable and

obtainable

and

in

the absence

of urgency . To apply a

less

rigid

evidentiarythreshold runs the danger of compromising a meaningful

consideration of the

test

for granting an interlocutory injunction (para 55).

11TheDefendants

submit

that the ourt

should

follow Utchfield

and

Soleil and

decline to grant the requested

injunction.

Almost the entiretyofthe evidence on

the material issue of

whether

the Defendants have trespassed or interfered with

the

Plaintiffs activities is hearsay, including unsourced

and

double hearsay.

12.The hearsay evidence dealing with

the

Defendants activities is provided inthree

afRdavits

13. First,

the

Penfold Affidavitcontains unsourced hearsay

on

this Issue, at

paragraphs 7-10 and 14-17, that is contraryto Rule 22-2(13)and is inadmissible.

This Court should strike or disregard those portions ofthe PenfoldAffidavit.


16/25

14. Further, both the Powell

Affidavit

and Hayes

Affidavit

consist of hearsay evidence

on

the

material

issue

of whether the Defendants have

trespassed or

interfered

with

the Plaintiffs activities

15.

With

one exception,

Mr.

Powell does not

offer

any directevidence on the material

Issue of whether actions constituting

trespass

or interference

have

occurred.

Almostthe entirety of his evidence on this material Issue is hearsay.

16.The exception is that Mr. Powell offers directevidence in paragraphs 69-71 of his

Affidavit.

Mr. Powell s three paragraphs of direct evidence is very limited and is

manifestly insufficient to obtainthe injunctive relief sought.

17.The hearsay evidence comprising the remainder of the Powell Affidavit neither

bears the hallmarks of reliability being contentious and adversarial) or necessity

there being no evidence that persons who made directobservations are not

availableto giveevidence), itis not even plausibleto suggest that itwould be

inconvenient for

the

Plaintiffs contractors and employees who allegedly

made

the observations to mak e

their own

affidavits

18.In particular, in

Exhibit

B

Mr. Powell

has

affixed only

some of the video footage

taken by the Plaintiffs contractors. He has excluded other videofootage

from

Exhibit B.

The

video footage is selective

and

incomplete.

19.Further, some of the video footage in Exhibit B is inconsistent

with

or does not

supportthe contents ofthe daily shift reports exhibited to the Powell Affidavit.

Mr.

Powell s description of what happens inthe videos is a) sworn on

information and beliefand b) is inaccurate in material respects. Mr. Powell

cannot be effectively cross-examined about these inconsistencies, however,as

he did not make any ofthe observations documented inthe dailyshift reports.

20.The Plaintiff has not provided any evidence suggesting that its staff and

contractors who allegedly observed the Defendants, according to Mr. Powell are

unable or unavailable to give any direct evidence.

21.This Court should disregard paragraphs 7-68 and 72-91, and Exhibits

B BB

of

the

Powell ffidavit


17/25

22.Mr. Hayes also does not

offer

anydirectevidenceon the material Issue whether

actions constituting trespass or Interference have occurred.

All

of his evidence on

this

Issue

Is hearsay

23.Further It appears that Mr.

Hayes

evidence Is In wholeor In part double

hearsay.

Mr.

Hayes does not appear to have personally gathered the evidence

affixed

as

exhibits

to

his affidavit.

He

does no t

aver

that he did so He does no t

aver that he personallylocated the news articlesonline. He does not aver that he

personally Investigated the social media webpages or that he personally

accessed the

Defendants

Facebook

accounts

He

remains

silent In his affidavit

on which person or persons located obtainedand collected the vast majority of

exhibits

to

his

affidavit

24.

Mr.

Hayes is legal counsel to the Plaintiff.

Mr.

Hayes is presumed to be familiar

with the applicable lawgoverning this application.

Including

this Court s decisions

in Utchfield and Soleil.

The

Defendants respectfully submit that Itwould be

inappropriateto relyon an affidavit of counsel which affidavit comprises

evidence that is entirely hearsay and apparentlydouble hearsay on the material

issue of whether actions constituting trespass or Interference have occurred.

25.This Courtshould strikethe Hayes

Affidavit

or disregard

It In

Itsentirety.

26.

Finally

the

remaining

evidence on the

material

Issue of whetheractions

constituting trespass or Interference have occurred Is ali unsourced hearsay.

27.The Penfold

Affidavit

gives hearsay evidence on this material Issue at

paragraphs 7-10 and 14-17. He does not disclosethe names ofthe persons with

whom he had discussions or

the names

of

the

Clearing Contractor or its General

Manager who were the source of his Information and believe

28. The Watson Affidavit gives double hearsay evidence on this material Issue at

paragraph 56.

Mr.

Watson s

information

comes

Mr.

Powell which Is Itself based

on untendered information gathered by unidentified BC Hydro security personnel.

This has the effect of shielding GPS workconducted by these unidentified

personnel. The Respondents are leftunable to assess the accuracy of those

GPS coordinates. This prejudicially denies the Defendants of a defence to the

hearsay allegation that they are interfering

with

the Plainttffs

work

due to their

alleged proximity to equipment.


18/25

29.

Likewise

the Jackson

Affidavit

gives unscurced hearsay on this materialissue at

paragraphs

23-24.

Aswith theWatson

Affidavit Ms.

Jackson s information also

comes

from Mr. Powell as well as from Exhibit G - which

was

created by

unidentified

BC

Hydro

staff using untendered GIScoordinates collectedby

unidentified BCHydrosecurity personnel. Further,

she

gives

as

hearsay

opinion evidencethe opinion ofMr. Green,which opinion Isalso based on

Exhibit G and thus on the undisclosed GIS work of unidentified security

personnel.

Again

this prejudicially denies the Defendantsof the

ability

to assess

the accuracy of those GPS coordinates and to defend themselves against the

hearsay allegation that they are interfering with the Plaintiffs work.

The

Plaintiff

has

provided no direct ev idence of anv tortious or

illegal

behaviour

30.The

Plaintiff

has not providedany directevidence ofany tortious behaviour,

amounting to nuisance, intimidation inducement of breach of contract,

interferencewith economic relations by unlawful

means

or conspiracy.

31. Indeed,

the

Plaintiff

has

not provided any hearsay evidence of any tortious

behaviour. The hearsay evidence - which, following Utchfield and So/e//, should

not be relied on in

any

event - merely indicates that the Respondents are

present inthe area. The hearsay evidencedoes not showthat the Defendants

have behaved in

an

obstructionist, intimidating or interfering manner whatsoever.

32. Innoway does the Defendants presence at the RockyMountain Fort remotely

equate to intimidation or mischiefunder ss. 423 or 430 of the Criminal Code. In

nowaydoes the Defendants presence at the RockyMountain Fortsite amount

to a

breach

of section

13

of

the

Heritage Conservation

Act

33.The Defendants have no knowledge of

the

existence or content of

the

Plaintifrs

contracts beyond selective extracts of the Clearing Contract and the Main Civil

Works Contract affixed to the Plaintiffs affidavits in this application.

34.The Defendants mere presence

at

the RockyMountain Fort site is not a violation

of

section 60 of

the Land Act.

The structures are

two small,

non permanent

transitory cabins and a tented area created by a tarp. There is no evidence of

flouting the law.

35.On January 20,2016, the Plaintiff asked the

Ministry

of Forests, Land and

NaturalResources Operations to opine that that the occupation of the Rocky

Mountain Fort site was unauthorized under

the

LandAct. However,

the

Ministry


19/25

declined

to take the

position

that the

occupation

ofthe

Rocky Mountain Fort

site

was unauthorized under the Land

Act

Instead, the

Ministry

would onlytake the

position that the structures at that site were unauthorized.

The Plaintiff, a oovemment corporation

should

no t be Granted inlunctive relief

when

the

government has

avoided

pursuing statutory

remedies under

the

Land

Act

36.The Defendants submit that

the

Piaintiff, as a govemment corporation, should

first

pursue its statutory remedies under the LandAct, before seeking to enlist

this Court in an extraordinary exercise of equitable jurisdiction.

37.

Reiying

on Ontario

case

law,the Plaintiff argues that it is entitled to an injunction

as of right to enjoin

an

unlawful act.

38. However, in British Columbia, this Court has rejected

that

argument in the

preciselythe

same

context

as

exists here, namely alleged trespasses to

Crown

land under section 60 of the Land

Act

Attorney General v. Sager, 2004 BCSC

720

at

para 13 .

39.The

Land

Act sets

out the

rights and responsibilities of the Crown Inthe

administration of public land. The procedures ins 59

are

intended to

ensure

that

adequate notice is given to

the

public of

limits

placed by

the

Crown on access to

such lands. The remedies and procedures provided intherefore intended to

provide due process for those accused of trespass on Crown lands - Sager,

at

para. 33.

40.The equitablejurisdiction of this Courtought not to be invoked to restrictthe

rights of boththe Defendants and ail members ofthe publicto enter on

Crown

land through the

use

of a Jane/John Doe injunction, where the govemment

has

chosen not to utilizethe offence provisions of

the

LandAct Sager, para 16.

41.The government s resort to the courts for injunctiverelief ought to be a final step

and not merely a convenient alternative to

the

application of criminalor other

available sanctions: Sager, paras. 21-22; British Columbia Attomey General) v.

Perry Ridge Water Users Assn., [1997] BCJ No. 2348 SC) QL); Alliford Bay

Logging Nanaimo) Ltd v. Mychajlowycz, 2001 BCSC 636.

42. While the Plaintiffis not

the

Attomey General, it is a govemment corporation. By

law, it may exercise powers onlyon behalf of the government. By

law,

itis


20/25

controlled

bythe government; Financial

Administration Act^ definition

of

govemment corporation .

43.The

Ministry

of Forests Landsand Natural Resource Operations has apparently

elected not to enforce or assign the power to enforce

the

LandAct at

the

Rocky

Mountain Fort site despite meeting with the PlaintifTs representatives.

44.The Plaintiff may exercise delegated statutory powers under the Land

Act

including powers regarding trespass under ss. 59 and 60 of the Land

Act

because itis a govemment corporation referred to ins.97. However there is no

indicationthat the Plaintiff has sought these powers from the Ministry Italso

prefers to turn to this Courtfor an extraordinaryand broad exercise ofequitable

relief

affecting all members of the public rather than exercising statutory powers.

45. In

these

circumstances to

issue

a Jane Doe/John Doe injunction

and bypass the

provisionsof the LandAcfwould deprive those individuals whomight

othenArise

be accused of offences under the Act of due process. Granting of interlocutory

Injunction

reliefis not just and equitable

In

allthe circumstances of the case -

Sager para. 36.

The s ta t us quo

will

not use the Plaintiff i r reparable harm in the form of

in re sed

o s t s

46.The second question to

address

under the RJR - MacDonaid

test

is whether

irreparable harm

will

result ifthe injunction sought is not granted. On this

question the Court should conclude that the status quo will not

cause

the Plaintiff

irreparable harm In

the

form of increased costs.

47.

Relying

on Ontario case law the Plaintiff argues that itneed not demonstrate any

irreparable harm to be entitled to an injunction it argues that it is entitled to an

injunction

as

of right to enjoin an uniawful act.

48. InBritishColumbia this Court

has

rejected that argument in

the

same

context of

alleged trespasses to Crown land under section 60 of the Land Act Sager para.

13

49.The Defendants submit

that

Ifthe Court decides to exercise its equitable

jurisdiction and issue an interlocutory injunction itmay only do

so

after applying

th e

usual three step

test

20


21/25

SO.The Defendant

has

filed

th e

Affidavitsof

Mr

McCullough, Dr. Shaffer,

Mr

Raphals

andMr Eliesen all of

whom

are

qualified

to

give opinion

evidence of

the net cost ofdelay. Theiropinions concurthat construction delayswill not

result in

net costs

for BC Hydro or its ratepayers:

McCuliough

Affidavit, Exhibit B,

Ex. p.33

Shaffer

Affidavit,

Exhibit D. Ex. p.35

Raphals Affidavit

Eliesen

Affidavit,

para.

15

A delay in construction of Site C, amounting to a

delay ofthe in-servicedate ofSite C,would

amountto a

ne t

savings to BritishColumbia, not

a

ne t

cost Th e net savings of a on e year delay,

in present value terms, is 267.68

million;

for a

two year delay itis 519.44

million;

for a five

year delay, the net savings is 1,187.47

million

... given the magnitude ofthe net savings by

delaying, inclusionof [ongoing]costs would

almost certainly result Inthe same conclusion.

Th e benefit of deferring remaining expenditures

four years would

be

in the order of 0.9 to over

1.1 billion Depending on the additional project

costs of such delay, that suggests a four year or

longer) delay in the development ofSite

0

could result in significant savings

an d

net

benefits for

8 0

Hydro

an d

its customers.

Th e additional costs of delay identified in th e

Savidant Affidavit,

when

combined with

th e

very

substantial positive ratepayer impacts that delay

would produce priorto commissioning and in the

very firstdecades thereafter, are not significant.

Delayingcommissioning

will

tend to reduce

th e

losses

that result from selling Site C surplus

power inthe expert market at prices far below its

productioncost. This benefit tends to reduce

the increased capital costs resulting fromthe

delay.

Michael Savidant s alleged construction cost

delays

ar e

effectively iilusionary

because he

relies on

an

unsubstantiated

need

for

th e

project

based on long term forecasts

that

have not been

properlyvetted. Delay ofthe project is

likely

to

save British Columbia ratepayers more than the

alleged estimated 420

million

costs Itemized by

Michael Savidant. This situation is Increasingly

obvious given current developments in load

d e m a n d .

2 1


22/25

51.

In

contrast, the Savidant

Affidavit

makes no

effort

to comply

with

Rule11.

Moreover

his curriculum vitae, released

In

other legal proceedings, casts doubt

onthose qualifications. TheSavidantAffidavit is inadmissible

opinion

evidence

and

should

be

struck

52. In contrast to the

McCuliough

Affidavit

the ShafferAffidavit the Raphals Affidavit

and the Ellesen Affidavit,

the

Savidant Affidavit

estimates

the

cost

of delaying

constructionfor one year at 420 million. Atpage 2 ofthe Report attached

as

Exhibit B to

the

McCuliough Affidavit (the McCuliough Report ),Mr.

McCuliough assesses that

Mr.

Savldant's affidavit contains no descriptionof his

updated calculations, displays a very limited understanding of project cost

estimation, and contains a number of errors of fact.

53.The

McCuliough

Report identifies the

following

specific difficulties

with

Mr.

Savldant's estimate

among

others:

a. Atparagraph5 ofhisAffidavit Mr. Savidant

Identifies

a construction cost

increase of 60

million

over his August 12,2015 estimate of 100 million;

yet at paragraph 6, Mr. Savidant Identifies an increase of 50

million

over

that August 12,2015 estimate. Mr. Savidant has provided no details that

would

account

for this discrepancy;

b.

Mr.

Savidant appears to use an assumption of 18% interest rate, which is

not a credible assumption in today's financial markets and contradicts the

rate he appears to

use

forother calculations;

c. Mr. Savidant Identifiespayments under the Main CivilWorks contract

as

a

basis

for Increased

costs

even though

the

contractor is not due to mobilize

until

early Februaryof2016. The McCuliough Report Indicates that non

existent progress payments should not attract interest charges; and

d. Mr. Savidant identifies an unsigned contract (the Turbine Generator

contract)

as

a reason for Increased direct costs at paragraph 6(a)(iv). The

McCuliough Report describes these alleged costs

as

speculative at best

and questions whether the Main

Civil

Works and Turbine Generator

contracts

were

mistakenly listed

as causes

for

increases costs

54 The

Plaintiff

has not

disclosed evidence,

such

as

the

revised project

schedule

that itsubmitted to regulators in

March

2015 or the terms of its contracts that

relate to projectscheduling, relevantto meeting its burden of proofon the issue

of irreparable harm. The SavidantAffidavit appears to rely on

these

documents.


23/25

55. On the whole of

the

evidence,

the

continuance of

the status

quo would not

cause

the Plaintiff Irreparable harm.

The

balance

of

convenience

favours

denial

of

the

requested

injunction

56.The third question under the RJR - MacDonaldtest is whether the balance of

convenience favours the granting of an Interlocutory Injunction This involves a

consideration not just of the parties interests, but of various publicInterests.

57.

In

light

of the evidence that delaying construction

would

create a net

financial

benefitfor

British

Columbian ratepayers, the public interest weighs against the

granting of an injunction.

58. Other public Interests would also

be

strongly served by refusing

the

injunction.

59 The Plaintiffs construction activities will destroy old growth and near-old growth

forests on

the south bank

of

th e

Peace

River, in th e Lower

Reservoir

Area.

This

destruction cannot

be

quantified monetarily and would be an irreparable loss to

the Respondents and to the public.

60. One judicial reviewand three appeals are currently underway. The hearing of

the judicial review concluded on February

2 2016

and reasons are in reserve.

One of the appeals is

set

for

April

4 and 5,2016. The other two appeals are

expected to be heard In the fall.

61.The strength of these appeals Issubstantial. In particular, the strength ofthe

Peace

Valley

Landowner Association sappeal is clearly evident from that party s

compelling factum:

LaxKv/alaams Indian Band

v

British

Columbia Minister

of

Forests , 2004

BOCA

306 at paras. 16-20.

62. The contents of the Peace Valley Landowner Association appeal dovetails with

the expert opinion evidence filed by the Defendants on this application.

In

their

appeal, the Association argues that Site C should have been referred to the BC

Utilities Commission to assess

the need

for and

cost

of

the

project. Mr. Eliesen,

Mr

Raphals,

Mr

Shaffer and Mr McCullough concur with that suggestion.

63. Further, the West Moberly First Nations and Prophet River First Nation, whose

appeals to the BCCourt ofAppeal and Federal Court ofAppeal are ongoing,

would suffer irreparable harm from the Applicant s tree clearing activities which

would undermine their ability to exercise their constitutionally-protectedtraditional


24/25

rights. The harm to theWest Moberly First

Nations

and Prophet River

First

Nation s rights shouldbe assumed to be irreparable: Yahey v. British Columbia

2015 BCSC 1302

at

paras. 41-45.

64.The Plaintiff

has

shown itself to be

piling

shortcut upon shortcutwiththis project

Itshortcutdue dilligence by bypassing the BC Utilities Commission, itshortcut

the FirstNations by

failing

to consult, itshortcut the administration ofjustice by

failing

to waitfor the results on appeal before trammelling over FirstNations

territory, it shortcut the LandAct requirements for notice on Grown land, it

shortcut

the

Rule 11 requirements for expert evidence and it shortcut the

Utchfield

limits

on hearsay evidence for interlocutory injunctions. Especially

here,

where the

Defendants have demonstrated

that

the status

quo is of net

benefitto

BO

Hydro and Its ratepayers, an injunction should be denied.

65.

These

considerations tip

the

balance of convenience against issuance of an

interlocutory injunction.

Part

6:

MATERIAL TO B E RELIED ON

1. Plaintiffs Notice of

Civil

Claim filed January

19 2016;

2. Plaintiffs NoticeofApplication for an injunction

filed

January 29,2016;

3. Plaintiffs affidavits in support of its application, including:

a. Plaintiffs Affidavit 1 of Patrick Hayes,

swom January

29 2016;

b. Plaintiffs Affidavit 1 of Cameron Penfold, affirmed January

28 2016;

c. Plaintiffs Affidavit 1 of AndrewWatson, affirmed January 29 2016;

d. Plaintiffs Affidavit 1 of Douglas Powell, sworn

January 28 2016;

e Plaintiffs Affidavit 1 of Siobhan Jackson, affirmed

January 29 2016;

f. PlaintiffsAffidavit 1 of Michael Savidant, affirmed January

28 2016;

g. Plaintiffs

Affidavit

1 ofEdieThome, affirmed January 20,2016;

4. Affidavit of Robert McCullough, affirmed February 9, 2016;

5. Affidavit of Dr. Marvin Shaffer, affirmed

February

10 2016;

6. Affidavit of PhillipRaphals, affirmed February

11 2016;

7. Affidavit of Marc Eliesen, affirmed February 14 2016;

8. Affidavit 1 of

Shauna

Stewart, affirmed February 15 2016; and

9. Such further material

as

this Court may accept


25/25

The ppli tion respondents estimatethat the application

will

take three days.

The application respondents have

filed in

this proceedinga documentthat containsthe

application respondents address for service.

Date: February 15 2 16

Counsel fo r the

Re

Jason GratI

ndents / Defendants

GratI

Company

Barristers

and

Solicitors

601-510West Hastings St.

Vancouver

BC V6B 1L8

604-694-1919 (office)

604-608-1919 (fax)

Documents

Defendant response to BC Hydro Site C injunction