Nan and Dianne Hartwick were back in court again last week, appealing a 1999 B.C. Supreme Court ruling that dismissed their Powder Mountain Resorts suit against the province and former Premier Bill Vander Zalm.
After a two-day hearing, a panel of three judges from the B.C. Court of Appeal reserved judgment.
In 1985 the Hartwicks were awarded approval in principle to develop an alpine ski area at Powder Mountain, in the Callaghan Valley. That approval was overturned two years later when the Social Credit cabinet awarded the right to develop Powder Mountain to Callaghan Resorts Inc., a company which involved former Social Credit attorney general Les Peterson.
In the 1999 trial the Hartwicks alleged that Vander Zalm interfered with the public proposal process, that forest minister Jack Kempf was about to approve the 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 NDP MLA Moe Sihota, B.C. Supreme Court Justice David 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.
In last weeks appeal, lawyers for Powder Mountain Resorts sought to show that Justice Tysoe erred in his 1999 ruling. Among the evidence presented at appeal was a 1994 letter of apology to Powder Mountain Resorts, drafted by an assistant to then-employment and investment minister Glen Clark, which expressed concern about delays in reviewing the Powder Mountain proposal. The letter was never sent.
In 1996 Sihota also wrote a letter, to then-environment minister Paul Ramsey, which suggested the Hartwicks had a pre-existing right to develop Powder Mountain.
Lawyers for the province argued at appeal that there was never any contract with Powder Mountain Resorts, and therefore there could be no breach of contract or further obligation to the company or the Hartwicks.
Despite winning exclusive rights to Powder Mountain in 1987, Callaghan Resorts never submitted a development plan for the proposed destination resort.
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.