Federal Court - Christian Aboriginal Infrastructure Developments ...

Federal Court - Christian Aboriginal Infrastructure Developments ... Federal Court - Christian Aboriginal Infrastructure Developments ...

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Page: 176 we’ve been looking for.” He believed this to be in relation to the regulatory changes that favoured local production. [689] At this meeting the Plaintiffs’ witnesses, Mr. Fehr, Mr. Spencer and the Kerr Brothers, all agreed that DIAND had indicated that if they built a mill they would be given access to the necessary timber to operate it. 2010 FC 495 (CanLII) [690] It is clear from the Plaintiffs’ witnesses that it was on the strength of this assurance that mill construction proceeded. Their evidence was not challenged on cross-examination or by the evidence of any of the Defendant’s witnesses. [691] There were more meetings and more letters between the LPL and the Defendant. On the totality of the evidence, I find that these meetings occurred for the mutually beneficial purpose of establishing a sawmill in Watson Lake. In plain terms, this project was important to DIAND; see also Exhibit P-79, Tab 109. [692] A meeting was held on April 9, 1998, between LPL and 391605 B.C. Ltd., then the parties to the joint venture that was operating the mill. Minutes of this meeting were entered as Exhibit D- 11, Tab 111. [693] Timber supply was the topic of conversation. It was discussed that the joint venture would be “getting 20,000 m 3 in short order, at the expense of local permit holders (they are apparently not

Page: 177 happy with this decision)”. I note that this document is part of Exhibit D-11 and was entered for the truth and accuracy of its contents. [694] In July of 1998, Mr. Brian Kerr, on behalf of LPL, contacted Mr. Fillmore about a possible THA site in an area near the Hyland River where there had been a forest fire, such areas are known as “burns”. As a result Mr. Kennedy, a Professional Forester employed by the Department in 2010 FC 495 (CanLII) Whitehorse, went and personally conducted an aerial reconnaissance of the Hyland River burn. This reconnaissance was conducted to determine the feasibility of a long-term supply of timber for SYFC in that area. Mr. Kennedy noted that the burn was “[n]ot economical unless used as bait or enticement in THA option.” (Emphasis added) [695] This was a relationship with aligned and intertwined interests. It was a relationship of sufficient proximity that a prima facie duty of care should be recognized if there was foreseeability of harm to this Plaintiff. [696] There is evidence that some of the Defendant’s servants were not aware that LPL was involved in the Watson Lake mill. That is not surprising given the constant turnover of employees in Whitehorse. [697] However, it is surprising that they did not take appropriate actions to make themselves aware. The knowledge of newly arrived employees is not the question. The question is “did the Defendant herself know that LPL was involved in the construction and operation of the mill”

Page: 176<br />

we’ve been looking for.” He believed this to be in relation to the regulatory changes that favoured<br />

local production.<br />

[689] At this meeting the Plaintiffs’ witnesses, Mr. Fehr, Mr. Spencer and the Kerr Brothers, all<br />

agreed that DIAND had indicated that if they built a mill they would be given access to the<br />

necessary timber to operate it.<br />

2010 FC 495 (CanLII)<br />

[690] It is clear from the Plaintiffs’ witnesses that it was on the strength of this assurance that mill<br />

construction proceeded. Their evidence was not challenged on cross-examination or by the evidence<br />

of any of the Defendant’s witnesses.<br />

[691] There were more meetings and more letters between the LPL and the Defendant. On the<br />

totality of the evidence, I find that these meetings occurred for the mutually beneficial purpose of<br />

establishing a sawmill in Watson Lake. In plain terms, this project was important to DIAND; see<br />

also Exhibit P-79, Tab 109.<br />

[692] A meeting was held on April 9, 1998, between LPL and 391605 B.C. Ltd., then the parties<br />

to the joint venture that was operating the mill. Minutes of this meeting were entered as Exhibit D-<br />

11, Tab 111.<br />

[693] Timber supply was the topic of conversation. It was discussed that the joint venture would<br />

be “getting 20,000 m 3 in short order, at the expense of local permit holders (they are apparently not

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