The British Columbia Supreme Court has allowed two plaintiffs to amend their civil claim – which alleged that the province had expropriated their jade mining interests through deferral orders and committed misfeasance in public office – to reflect recent developments.
In Cassiar Jade Contracting Inc. v British Columbia, 2025 BCSC 1566, the civil claim of the plaintiffs, Cassiar Jade Contracting Inc. and Glenpark Enterprises Ltd., requested damages arising from BC’s jade mining bans. The plaintiffs alleged the following facts.
The plaintiffs were long-time holders of free miner certificates, mineral claims, and leases under BC’s Mineral Tenure Act, 1996. Cassiar was a large jade producer, while Glenpark was a family-owned business that explored and developed placer and hard rock jade deposits.
The Tahltan Central Government (TCG), as the Tahltan nation’s administrative body, made Aboriginal title claims in lands that included the area where the plaintiffs ran their nephrite jade mining businesses in northwest BC.
In June 2018, the TCG issued a press release stating that it had notified BC to suspend all jade extractions and placer mining activities within its claimed territory, subject to its consent.
In July 2019, the TCG issued the plaintiffs an eviction notice and made a public statement to BC and its minister of energy, mines, and petroleum resources to demand immediate steps to cease jade mining activities on its claimed territory.
The plaintiffs maintained their mining activities, as BC’s permitting officer advised. BC and the TCG then signed a shared prosperity agreement, which the plaintiffs alleged lacked consultation or an opportunity to consult with them.
In May 2020 and July 2021, orders in council made jade permit deferral orders. These orders imposed or extended moratoria over placer jade mining.
In their civil claim, the plaintiffs argued that the bans prevented them from conducting their mining activities or acquiring the permits required to work on their existing tenures. They alleged an expropriation of their rights, titles, and interests without compensation.
The plaintiffs also asserted that BC’s conduct amounted to misfeasance. They added that the province failed to communicate with them and refused to engage with them without a confidentiality agreement.
The plaintiffs contended that Public Servant #1 (currently unnamed) improperly and unlawfully slowed down the processing of permits so that the bans would cover the plaintiffs and prevented their business activities from being grandfathered out of the prohibitions. At the same time, BC allegedly kept making them pay annual licensing fees.
Amendments allowed
The plaintiffs applied to amend their civil claim to reflect the subsequent issuance of order in council 242/2024 (OIC 242/2024). They said BC committed additional misfeasance by permitting others to continue jade mining while banning the plaintiffs from doing so.
The Supreme Court of British Columbia decided that the plaintiffs’ proposed amendments sufficiently stated the necessary elements of the cause of action, informed the defendant of the case it should meet, and enabled discoveries to obtain further particulars.
The court ruled that the claim included the required elements for misfeasance. Specifically, the claim alleged misfeasance in managing the bans, including those arising from OIC 242/2024. The claim also asserted that the conduct was deliberate and likely harmful to the plaintiffs.
The court acknowledged that the claims were general in nature and that the individual parties involved were unknown, as the claim failed to specify which employee or officer decided to enforce the bans and which companies, if any, the bans did not bind. The court accepted that a further amendment might be necessary after completing the discoveries.
However, the court held that the proposed amendments raised factual issues determined from publicly known information, including the issuance of OIC 242/2024, and the general knowledge that other parties continued mining jade despite OIC 242/2024.
The court noted that, at this stage, only the defendant could identify the ministry employee or officer who might have breached their duties when managing the bans.