Seven months after their appeal was heard, more than two years after the B.C. Supreme Court originally dismissed their suit, and 16 years after they were awarded approval in principle to develop Powder Mountain, Nan and Dianne Hartwick may finally be out of chances.
Three B.C. Court of Appeal judges last week dismissed the Hartwicks appeal of Justice David Tysoes ruling in a 1999 trial.
In the 1999 trial the Hartwicks alleged that former Premier Bill Vander Zalm interfered with the public proposal process for developing Powder Mountain as a ski area. They alleged that former forest minister Jack Kempf was about to approve the Hartwicks Powder Mountain Resorts proposal when Vander Zalm overruled him and awarded development rights to Callaghan Resorts. The Hartwicks sought $2.3 million in damages plus interest, for a total of approximately $5 million.
After a multi-week trial which saw testimony from Kempf, Vander Zalm, former cabinet minister Grace McCarthy and former NDP MLA Moe Sihota, B.C. Supreme Court Justice Tysoe ruled the Hartwicks failed to make their case. Among Justice Tysoes findings was that Powder Mountain Resorts Ltd. was never in a contractual situation.
Last March the Hartwicks presented their appeal in a two-day hearing. Judgment was released Oct. 24.
"In summary, I do not believe it is open to this court to interfere with the trial judges findings of fact, based as they are on a careful consideration of the credibility of the witnesses, and the voluminous testimony and hundreds of documents that were adduced during the course of this long trial," Madam Justice Newbury wrote. "As regards the applicable law, I am of the opinion that the facts found by the trial judge do not begin to support a finding of targeted malice i.e., that any of the officials was motivated by a desire to injure PMR (Powder Mountain Resorts) or benefit CRI (Callaghan Resorts), as opposed to a wish to serve the best interests of the Province Finally, I agree with the trial judge that since the proposal was rejected on its merits by Cabinet, acting lawfully, there is no causal link between the actions of the officials and PMR's injuries. Nor was there any compensable loss suffered by PMR: its proposal would have been rejected in any event, quite apart from the existence of CRI's proposal. Mr. Vander Zalm's placing the matter on the Cabinet's agenda in February 1987 did nothing more than forestall the waste of further time and money by PMR; and Mrs. McCarthy's acquiescing in giving PMR a second chance in July of the same year is hardly something of which PMR can legitimately complain."
There have been at least two studies done of the Powder Mountain area which suggest it would not be suitable terrain for an alpine ski resort. The area is now frequently used by snowmobilers and heli-skiers. Commercial backcountry recreation tenures have been issued for heli-skiing, snowmobiling and cross country skiing businesses in the Callaghan.
Whether the Hartwicks will let the matter go, however, remains to be seen.