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In the courts: B.C. judge greenlights class action over provincial grizzly hunt ban

The plaintiffs showed the province’s alleged misrepresentations were common ground among proposed class members
The B.C. Supreme Court in Vancouver

Businesses who provided guide services for grizzly bear hunting have been certified as a class action against the B.C. government over its 2017 decision to ban the practice.

Ronald Gordon Fleming and Love Bros. & Lee Ltd. are the named plaintiffs in a claim naming the B.C. government – specifically the Ministry of Forests, Lands, Natural Resource Operations and Rural Development – and the former MLA in charge of the ministry at the time of the ban.

In a recent decision, the B.C. Supreme Court certified class status to the defendants and others who “are guide outfitters who, prior to the ban, had the ability to guide people in hunting grizzly bears.”

The plaintiffs claim they relied on the provincial system that placed quotas on how many bears the plaintiffs could kill in certain areas during certain times to offer non-resident hunters the ability to hunt grizzly bears and that the businesses made more money on tours when clients killed a grizzly bear.

Fleming held a 25-year licence from the province granting him “exclusive control over guiding privileges” in part of the province, as well as a five-year licence granting him the ability to kill a certain number of animals classified as big game species – including grizzly bears and mountain goats – in the Skeena and Omineca regions between 2017 and 2021, McDonald noted.

The other named plaintiff, a company run by Fleming known as Love Bros., currently holds a certificate for guiding hunts but didn’t at the time the ban was ordered in 2017.

The plaintiffs claim the grizzly hunts were a “lucrative component” of their guide business and the ban has caused them to suffer economically.

“The plaintiffs are careful to point out that the claim is not an attempt to reinstate the grizzly bear hunt. The claim does not allege that a class action arises just because of the plaintiffs’ disagreement with a change government policy or a political decision,” Justice Elizabeth McDonald wrote in her March 1 decision to grant class status.

“The plaintiffs submit the action is not really about hunting at all, rather, it is a claim for compensation for the loss of the grizzly bear hunt for guide outfitters who relied on the province’s representations that the province would protect their interests. The plaintiffs say that the province failed to protect the interests of guide outfitters and the province’s wrongful conduct is actionable.”

However, the plaintiffs do claim the minister who implemented the ban, former MLA Doug Donaldson, acted beyond his authority because the ban was not about conservation but about public opinion around grizzly bear hunting.

They also argue he knew he was acting beyond the scope of the Wildlife Act by bypassing the requirement for a wildlife management reason before implementing the ban.

But McDonald determined this was not done in bad faith and that a “response to public pressure is not, without more [evidence], evidence of bad faith or conduct inconsistent with the obligations of office.”

She further found that, even if the plaintiffs proved Donaldson acted beyond his powers, they hadn’t shown he did so intentionally, and as such, claims of misfeasance by Donaldson were “doomed to fail.”

Among the affidavits filed by the plaintiffs is that of Tim Sheldan, the former deputy minister of forests, lands, natural resource development and rural development under Donaldson.

Sheldan stated in his affidavit that he would be able to testify in trial on information “relevant to the allegations in the claim” but that some of it may be considered privileged information.

McDonald found that the plaintiffs argued well enough that the proposed class members were united in claims the province made misrepresentations to them regarding commercial grizzly hunting activities. However, she found they were overly vague in tying economic losses to those misrepresentations, noting that “not all economic loss is necessarily compensable.”

She further found that the plaintiffs didn’t adequately argue that damages could be awarded on a class-wide basis.

While McDonald granted class status to sue the B.C. government, she denied the plaintiffs class status to sue Doug Donaldson, the minister of forests, lands, natural resource development and rural development.

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