Tuesday, July 28, 2009

 

BCRail Properties, the Defendant

.
Our friend, Gary E, has a startling posting up at his place today:

BCRP Fails to Give Evidence of Government Mandate

Gary E writes:

Anonymous has supplied us with a very interesting piece of information in a case involving BC Rail Properties in Prince George Court.

[Click HERE to see the full "Reasons for Judgment" in a case involving the lease-sale of land owned by BC Rail Properties. Binks Forest Products Ltd., of Prince George, B.C., is the Plaintiff. BCRail Properties is the defendant. The hearing in chambers took place on April 15, 2009.]

After reading this judgment I [Gary E] found a couple of interesting submissions and reasons for judgment. Not the least of which involves the following:

[39] The only harm that I [Judge Meiklem] can infer would accrue to the defendant from a preservation of the plaintiff’s option to purchase pending a hearing of the issue on the merits is that the defendant would be delayed or hindered in marketing the premises in the intervening period of time. The defendant states in submissions that an injunction would prevent the defendant from dealing with the premises in accordance with its mandate from the provincial government to divest itself of all its real property. There is no evidence as to the terms of any such mandate or what losses may occur if there are delays experienced. The defendant also suggests that an injunction would be in place for some time as this action is unsuitable for Rule 18A summary disposition given the conflicts in evidence the require findings of credibility to resolve.

So BCRP tells the court that an interim interloculatory injunction prevents them from doing the government's bidding ie : divesting itself of all real properties. They say this has been mandated. Yet they fail to show evidence in court?

It will be interesting to see the final results of this interim injunction.

""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

BC Mary says:

We tried, didn't we ... to get either an injunction "or other means" to hold back further benefits rolling out into CN pockets on the 5th anniversary of the BCR-CN agreement.

Mr Krog (when he finally got around to having his assistants send us form letters the day before the 5th anniversary when it was too late to act) said an injunction couldn't be done. Mr Krog said that the Opposition (or maybe the people of B.C.) had no standing. Or, said Mr Krog on the day before the 5th anniversary, if it could be done, it would cost too much.

I don't buy that.

Compare Krog's words to the creativity going on in the Prince George case:


The Application

[1] The plaintiff has applied under Rule 18A and Rules 45 and 46 of the Rules of Court for certain declaratory and injunctive relief in connection with an option to purchase contained in a lease of industrial property adjacent to a railway track in Prince George, British Columbia. Short leave was granted for the hearing of the application, but upon the return of the motion it was agreed that a summary trial on the merits was premature and outside the bounds of Rule 18A because neither a statement of claim or defence had yet been filed. The matter proceeded as a limited application for an interim interlocutory injunction to preserve until a hearing on the merits of the plaintiff’s claim that for various reasons, the option to purchase has not expired.

[2] The application was not initially framed as a stand-alone injunction application, so the affidavits in support of the application did not address the question of irreparable harm and other matters relating to the balance of convenience. Leave was granted to the plaintiff to file further evidence by affidavit and to the defendant to respond with affidavits. These have been received, together with further submissions from the defendant. [end of excerpt]


I don't agree that something couldn't -- or can't -- be done to pause the BCR-CN deal.

I don't agree that the people of British Columbia who were the previous owners of BC Rail, would not qualify for "standing" in a case seeking to pause the BCR-CN deal until we SEE the deal.

I don't agree that compelling evidence couldn't be provided showing the losses incurred by the people because of the deal, but that the options for redress are being kept secret from the people.

I can't agree that there aren't sufficient grounds, for innovative lawyers willing to find a way to seek a fair reappraisal at this opportune time ... if not by injunction, then by other means.

But I've stopped watching Mr Krog for any sign of action. Instead, I'll be watching what happens next with Brink vs. BCR Properties in Prince George.

Special thanks to Gary E, and his Anonymous contributor, for this insight. - BC Mary

""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

This further contribution adds to the BCRP story:


Mary, I left that court case @ Gary's, I am good at finding stuff, just not posting it very coherently.

Here is a court case that will blow your socks off, I was doing further research to the Co. involved, which I will put in my next post ( word limits) The statement below might exlain why they call it a lease.

In the 2009 BCRC financial report

BCRC also held a number of dormant subsidiary companies, of which all have been voluntarily dissolved since 2004, with the exception of the following remaining dormant subsidiaries:

Vancouver Wharves Ltd. and Vancouver Wharves Limited Partnership
These are no longer operating entities, since the May 30, 2007 transaction with Kinder Morgan, but cannot be dissolved until resolution of any outstanding litigation matters.

---
In the Supreme Court of BC
May 14, 2003
Vancouver, B.C.

[2] The plaintiff, International Container Terminal Services Inc. (ICTSI), is incorporated pursuant to the laws of the Philippines and is engaged in the business of managing, operating and developing container ports and terminals. It is not registered as an extra-provincial corporation in British Columbia.

[3] The defendant, British Columbia Railway Company (BCRC), is a Crown Corporation, which included among its holdings Casco Terminals, Vancouver Wharves, and Canadian Stevedoring.

[4] In 2002 BCRC embarked on a process to sell some or all of the components of BC Marine. ICTSI was a bidder on the Casco Terminals part of the offering. ICTSI’s proposal was not accepted and Casco, along with Canadian Stevedoring, was sold to another party in January, 2001. Put in the most general terms, ICTSI claims that the bidding process was unfair and that it has suffered damages including loss of the contract for the purchase of Casco Terminals and the costs and expenses incurred in preparing the bid.....

(h) the determination of value by BCRC would be conducted in good faith and using a process which ensured that no bidder would receive preferential treatment or a competitive advantage;

links and further info - next comment

EM

"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""


Follow up to EM's comment

The 2003 case


[18] I see no prejudice to the plaintiff in directing that such particulars be provided to the extent they are known. That is to say that the particulars of its dealings with CIBC and BCRC, which would give the defendant notice of any issues that may arise in its communication with its agent and of which it may not be aware, should be given. A pleading expressed to include such information without limiting the allegations, would leave the plaintiff ample room to explore acts or omissions internal to the defendant’s activities or those of its agent which may have a bearing on what occurred but of which the plaintiff may not be aware.

[19] Paragraph 5 of the Statement of Claim reads:

Prior to completing the confidentiality agreement, ICTSI sought and received from BCRC an assurance that the process would be fair and transparent, and that all information made available to any bidder would be supplied to ICTSI.

[20] In paragraph 5(b) the defendant has sought the following particulars:

(i) the person or persons who gave the alleged assurance;

(ii) the person or persons who received the alleged assurance;

(iii) whether the alleged assurance was made or given orally, or in writing or both;

(iv) if the alleged assurance was made wholly or partly in writing, the date and description of the writing;

(v) when the assurance was given; and

(vi) particulars of the alleged assurance;

[21] I do not think it inappropriate or prejudicial to the plaintiff to ask, at this stage, for such details as to the actual assurances alleged, and I order the particulars sought.

forward to February 2009 in BCSC

International Container Terminal Services Inc.,

Plaintiff

And

British Columbia Railway Company and CIBC World Markets Inc.

1] The defendant British Columbia Railway Company (“BCRC”) seeks an order compelling answers to certain discovery questions and production of certain documents. The plaintiff says that the information sought is protected by solicitor-client privilege. The issue on this application is whether the plaintiff has waived privilege.

[2] This action arises out of the sale by BCRC of its marine operations, which consisted primarily of three companies—Vancouver Wharves Ltd., Casco Terminals Ltd. and Canadian Stevedoring Ltd. BCR issued a request for proposals from potential purchasers and the plaintiff was an unsuccessful bidder for one of those assets—Casco Terminals.

[3] The plaintiff alleges that BCR provided a number of assurances about the bidding process, including that it would be “fair and transparent” and that the plaintiff would not be at a competitive disadvantage if it bid for only one of the three major assets. These assurances are alleged to amount to a contract that governed the bidding process and the plaintiff claims damages for breach of that contract. The terms of the alleged contract are set out in paragraph 19 of the statement of claim:

[4] The plaintiff’s alleged damages are set out in para 25:

25. As direct consequence of the breaches of contract by BCRC as set out herein, ICTSI has suffered damages including the loss of the contract for the purchase of Casco Terminals at the price and on the terms contained in its October 8, 2002 bid. In the alternative, ICTSI has suffered damages in the amount of the cost and effort of conducting extensive due diligence investigations on Casco Terminals over a five month period and in preparing and presenting its preliminary and final bids.

http://www.courts.gov.bc.ca/jdb-txt/SC/09/01/2009BCSC0150err1.ht

EM

""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""


Comments:
Thanks Gary and Mary! So, perhaps everything isn't quite as cut and dried as the government would have us believe? At least, that's how I'm reading this...

Mary, Mr. Krog confuzzles me - he claims that the former OWNERS (not the government, the owners) would not qualify for standing in a court of law IF an injunction were sought on our behalf? If that's the case, then what the heck is the point of an injunction on any issue before the courts? WE owned the railway, the interest WAS and IS ours! The interest is STILL ours because we have NO idea what the sales contract says! Were OUR best interests served in this sale, did we get the BEST possible price (hell no),...the list goes on but you can see what I mean. Mr. Krog - who ARE you working for?!

Mr. Krog appears to view the deal in pretty much the same light as Campbell! That being; that the public who owned it don't matter, and their opinions and feelings on this issue don't matter enough to worry about. That's what it seems like to me. By not being willing to at least TRY for an injunction (or other means as you say), by not throwing it "out there" where John Q. Public can see that they are indeed TRYING to do their jobs...the NDP are now seen as being in agreement with what has happened. Would the NDP have done anything different if they had been faced with selling BC Rail? For some reason, my gut is saying no - their democratic ways are quickly becoming autocratic.

Honestly, I see very little if ANY difference between the sitting government and its opposition. Who are the opposition there to support? Well, they would like the public to believe its us - my eyes are telling me they are there to serve themselves to an excellent wage/benefits package, and a stellar pension. The NDP are proving themselves to be liberal lites, and therefore worthless when it comes to standing for us.

Yes, that sounds harsh - but I find there inaction and rhetorical blatting even worse.

Anyway, good on you two for getting this out where we can see it.
 
Hi Mary,

As I've already discussed with Laila, history demonstrates that the NDP does not feel any responsibility to the people of the Province as a whole when they are not in power. Their only concern is the betterment of the Party itself. This case is typical in that allowing the egregious act to occur would seem to do more to promote the fortunes of the Party than to actually prevent the act from occurring.

I strongly believe that the only way to prevent such actions is to elect people who actually believe that the power should be retained by the people as a whole, and are willing to allow the people to decide directly via recall, Citizen Grand Juries, and the direct election of judges. As well, the repudiation of unlawful debt would allow a future government to reclaim our properties and resources.

Today's drop in Plutonic's share price could be the start of the recovery of our resources.

Ian Vaughan
 
Direct election of officials other than judges also seems more than warranted; it may be the only way to guarantee the independence of the police and prosecution branch, and there are cases where cabinet portfolios should also maybe be directly elected. It was the case in the old days that newly-appointed cabinet ministers resigned their seats, and byelections were held to confirm them in their positions; some were rejected. That tradition bridged the era of the show-of-hands ballot and the paper ballot, by the way.

At present, technically, we only elect MLAs, and the first minister is "elected" by them (before the fact), and then whoever gets that job gets to appoint whomever they want to damn near everything; that's not a democracy, it's an elected monarchy.

More and more I understand the yanquito reasons for separate executive, legislative and judiciary. The old British traditions of honour and responsibility which were necessary for the parliamentary system to run properly are so dead in the water, those waters should be labelled toxic waste. What we're left with, without the old honour code, is a system of abuse of power that's all too easy to exploit for those who can buy their way into office with mass advertising and p.r. campaigns which are totally deceptive. And once in, they can't be gotten out easily, likewise all those they've appointed.....

We all know this, I suppose......but how to change it??
 
Mary, I left that court case @ Gary's, I am good at finding stuff, just not posting it very coherently.

Here is a court case that will blow your socks off, I was doing further research to the Co. involved, which I will put in my next post ( word limits) The statement below might exlain why they call it a lease.

In the 2009 BCRC financial report
BCRC also held a number of dormant subsidiary companies, of which all have been voluntarily dissolved since 2004, with the exception of the following remaining dormant subsidiaries:
Vancouver Wharves Ltd. and Vancouver Wharves Limited Partnership
These are no longer operating entities, since the May 30, 2007 transaction with Kinder Morgan, but cannot be dissolved until resolution of any outstanding litigation matters.

---
In the Supreme Court of BC

May 14, 2003
Vancouver, B.C.
[2] The plaintiff, International Container Terminal Services Inc. (ICTSI), is incorporated pursuant to the laws of the Philippines and is engaged in the business of managing, operating and developing container ports and terminals. It is not registered as an extra-provincial corporation in British Columbia.

[3] The defendant, British Columbia Railway Company (BCRC), is a Crown Corporation, which included among its holdings Casco Terminals, Vancouver Wharves, and Canadian Stevedoring.

[4] In 2002 BCRC embarked on a process to sell some or all of the components of BC Marine. ICTSI was a bidder on the Casco Terminals part of the offering. ICTSI’s proposal was not accepted and Casco, along with Canadian Stevedoring, was sold to another party in January, 2001. Put in the most general terms, ICTSI claims that the bidding process was unfair and that it has suffered damages including loss of the contract for the purchase of Casco Terminals and the costs and expenses incurred in preparing the bid.....

(h) the determination of value by BCRC would be conducted in good faith and using a process which ensured that no bidder would receive preferential treatment or a competitive advantage;
links and further infonext comment

EM
 
Follow up to EM's comment

The 2003 case
[18] I see no prejudice to the plaintiff in directing that such particulars be provided to the extent they are known. That is to say that the particulars of its dealings with CIBC and BCRC, which would give the defendant notice of any issues that may arise in its communication with its agent and of which it may not be aware, should be given. A pleading expressed to include such information without limiting the allegations, would leave the plaintiff ample room to explore acts or omissions internal to the defendant’s activities or those of its agent which may have a bearing on what occurred but of which the plaintiff may not be aware.

[19] Paragraph 5 of the Statement of Claim reads:

Prior to completing the confidentiality agreement, ICTSI sought and received from BCRC an assurance that the process would be fair and transparent, and that all information made available to any bidder would be supplied to ICTSI.

[20] In paragraph 5(b) the defendant has sought the following particulars:

(i) the person or persons who gave the alleged assurance;

(ii) the person or persons who received the alleged assurance;

(iii) whether the alleged assurance was made or given orally, or in writing or both;

(iv) if the alleged assurance was made wholly or partly in writing, the date and description of the writing;

(v) when the assurance was given; and

(vi) particulars of the alleged assurance;

[21] I do not think it inappropriate or prejudicial to the plaintiff to ask, at this stage, for such details as to the actual assurances alleged, and I order the particulars sought.

forward to February 2009 in BCSC

International Container Terminal Services Inc.,

Plaintiff

And

British Columbia Railway Company and CIBC World Markets Inc.

1] The defendant British Columbia Railway Company (“BCRC”) seeks an order compelling answers to certain discovery questions and production of certain documents. The plaintiff says that the information sought is protected by solicitor-client privilege. The issue on this application is whether the plaintiff has waived privilege.

[2] This action arises out of the sale by BCRC of its marine operations, which consisted primarily of three companies—Vancouver Wharves Ltd., Casco Terminals Ltd. and Canadian Stevedoring Ltd. BCR issued a request for proposals from potential purchasers and the plaintiff was an unsuccessful bidder for one of those assets—Casco Terminals.

[3] The plaintiff alleges that BCR provided a number of assurances about the bidding process, including that it would be “fair and transparent” and that the plaintiff would not be at a competitive disadvantage if it bid for only one of the three major assets. These assurances are alleged to amount to a contract that governed the bidding process and the plaintiff claims damages for breach of that contract. The terms of the alleged contract are set out in paragraph 19 of the statement of claim:

[4] The plaintiff’s alleged damages are set out in para 25:

25. As direct consequence of the breaches of contract by BCRC as set out herein, ICTSI has suffered damages including the loss of the contract for the purchase of Casco Terminals at the price and on the terms contained in its October 8, 2002 bid. In the alternative, ICTSI has suffered damages in the amount of the cost and effort of conducting extensive due diligence investigations on Casco Terminals over a five month period and in preparing and presenting its preliminary and final bids.

http://www.courts.gov.bc.ca/jdb-txt/SC/09/01/2009BCSC0150err1.ht

EM
 
makes ya wonder how many other bidding processes are tainted in the last eight years huh?

I wonder - do you think EDS Advanced Systems had to bid on the contract for being the government's digital shredding office? Or was it just another plum contract for the party faithful?

It would be interesting to know the full details on how EDS, Maximus etc got into the game of taking over government services, i.e. were these by tender, or are they "On Her Majesty's Appointment"? Ditto Accenture re Hydro....was there a bidding process or tenders when that arm of the company was outsourced to Anderson/Accenture? Or was it, like CN, another chosen recipient of the redistribution of the Crowns' wealth to the wealthy?
 
Geeze Mary anything to do with,bc rail ,naturally comes with the preamble ,failure to give evidence what a shady cast of characters!
 
Anon 12:09,

I can't quite figure what you mean ... could you re-phrase that?
 
I meant all the players on the side of bc rail and government,which in my mind reminded me of one of your earlier works which was in reference to paying high wages to some people like the president of bcr and other like hann etc...which is tantamount to give me a high wadge and I'll not divulge what I know has transpired ?
 
Post a Comment

Links to this post:

Create a Link



<< Home