On October 18, 2002, Justice Grant Burnyeat of the Supreme Court of British Columbia granted Golden Hill Ventures Ltd., a declaration of builders lien in the amount of $6,521,177.57, plus GST and costs against the Kemess South gold and copper mine in northern B.C.
Golden Hill was the successful tenderer for the site preparation work at the mine. It undertook this work in 1996-97, but terminated its contract with the defendant Kemess Mines Inc., when it failed to pay a certified progress certificate. Golden Hill filed a lien against the mine in late 1997 and sued Kemess for, inter alia, breach of contract, negligent misrepresentation and intimidation.
Kemess was found to be negligent for failing to ensure that the nature of the work was accurately described in the tender documents. The court also found that Kemess negligently represented that there were adequate sources of good granular soil material at the site for the earthworks construction. As construction proceeded, it became apparent that the soils were in fact very silty, and when unexpectedly high levels of precipitation were experienced, the nature and cost of the earthworks performed by Golden Hill changed dramatically.
The court found that Kemess failed to disclose some critical geotechnical reports to Golden Hill. Kemess also breached its contract with Golden Hill by repeatedly interfering with Golden Hill’s ability to control the workfor the mine’s development. Finally, the judge found that Kemess was in breach of its duty to act in good faith in fulfilling some of its obligations under the contract and was guilty of the tort of intimidation by compelling Golden Hill to work through false promises and threats, including threats to seize Golden Hill’s equipment, to dismiss Golden Hill from the site and to withhold payment of a certified progress draw, when it had no lawful right to do so.
Golden Hill was represented by Karen Martin, Tanya Rothe and Andrew Mackay of Bull, Housser & Tupper in Vancouver. Kemess was represented by James Hall, Michael Demers and Heather Maconachie of Owen Bird in Vancouver.
Golden Hill was the successful tenderer for the site preparation work at the mine. It undertook this work in 1996-97, but terminated its contract with the defendant Kemess Mines Inc., when it failed to pay a certified progress certificate. Golden Hill filed a lien against the mine in late 1997 and sued Kemess for, inter alia, breach of contract, negligent misrepresentation and intimidation.
Kemess was found to be negligent for failing to ensure that the nature of the work was accurately described in the tender documents. The court also found that Kemess negligently represented that there were adequate sources of good granular soil material at the site for the earthworks construction. As construction proceeded, it became apparent that the soils were in fact very silty, and when unexpectedly high levels of precipitation were experienced, the nature and cost of the earthworks performed by Golden Hill changed dramatically.
The court found that Kemess failed to disclose some critical geotechnical reports to Golden Hill. Kemess also breached its contract with Golden Hill by repeatedly interfering with Golden Hill’s ability to control the workfor the mine’s development. Finally, the judge found that Kemess was in breach of its duty to act in good faith in fulfilling some of its obligations under the contract and was guilty of the tort of intimidation by compelling Golden Hill to work through false promises and threats, including threats to seize Golden Hill’s equipment, to dismiss Golden Hill from the site and to withhold payment of a certified progress draw, when it had no lawful right to do so.
Golden Hill was represented by Karen Martin, Tanya Rothe and Andrew Mackay of Bull, Housser & Tupper in Vancouver. Kemess was represented by James Hall, Michael Demers and Heather Maconachie of Owen Bird in Vancouver.
Lawyer(s)
Firm(s)
Norton Rose Fulbright Canada LLP
Owen Bird Law Corporation