OPINION: 'Certainly they were not too old to come to court and make some attempt to explain away their alleged misconduct.'
Old dreams die hard and Colin Beach, the aptly named West Vancouver entrepreneur behind Rain Coast Water Corp., refuses to let his go.
In February, the B.C. Court of Appeal appeared to drive a stake through the heart of his hoary litigation, which has haunted the courthouse since 1996.
But the man who mounted a quixotic decades-long legal war over the scuttling of his vision to ship B.C. water to parched California is battling on.
Invoking ghosts from the dead Social Credit Party and an NDP administration from the last century, Beach continues to insist governments screwed him out of the profits from slaking California’s thirst.
After digesting the lengthy appeal ruling putting the boots to the trial judge in his case, Beach concluded the justices ignored an important fact — a key figure wasn’t as old as they thought he was!
Jack Farrell, the former deputy comptroller of water rights, who canceled the water licences but who was not a party to the suit, was described as “approaching 90 years old” with no recollection and so was never called as a witness.
Former Premier William Vander Zalm and other aging pols from his generation also didn’t appear, and Beach smells a rat: “Was Vander Zalm also too old to testify?”
Since 1982, Beach had nursed his dream of exporting water to the U.S. from pristine Freil Lake, east of Powell River.
He launched the lawsuit after a last-minute moratorium on bulk water exports adopted by the Socred administration in 1991 left him — dare I say it? — high and dry, beached!
Rain Coast claimed it was frozen out of the market by the government in favour of a rival and filed its initial statement of claim on Nov. 25, 1996.
After obtaining over 2,000 documents, which took about a decade, Beach amended and re-filed his claim on Aug. 14, 2009. In 2010, he won a judgment that the firm’s foreshore licence was unlawfully canceled.
During a 26-day trial in 2012 and 2013, Crown lawyers explained to then B.C. Supreme Court justice Peter Leask that the aged politicians and some other witnesses would not be called.
He was told given the passage of time and their advanced age, none was likely to have any first-hand memory “30 years after the event,” B.C. government lawyer Graham Underwood said according to transcripts.
Leask was skeptical: “”Well, so far you haven’t said anything about anybody except Mr. Farrell, who you said is 90 years old and has a failing memory.”
“No, I, I — my Lord, I shouldn’t say he’s 90 years old, I should say he’s approaching 90 years old,” Underwood responded.
Leask wasn’t impressed, and Beach won a historic judgment on May 12, 2016.
Leask said the case was a “clear example of giving favourable treatment to one competitor at the expense of others, including the plaintiff, and against the public interest.”
The age of witnesses again came up during the appeal in 2018.
Underwood told the division: “I know that when we did the trial Mr. Farrell, for example, was approaching 90 and was in very frail mental health. I don’t even know if he’s still alive.”
Beach was incensed: “Farrell was not ‘almost 90 years old’ and it was not ‘30 years after the event.’”
“The fact is, Farrell, Vander Zalm and (Dick) Roberts were not all that old at the time of the trial,” Beach fumed. “Certainly they were not too old to come to court and make some attempt to explain away their alleged misconduct.”
After the appeal hearing, Beach remembered he had interviewed Farrell on March 7, 2003.
The recorded meeting was not mentioned during the trial, but Beach attached the 41-page transcript as an exhibit to a 111-page affidavit he submitted to the province’s high bench on May 23, 2018.
Asked in the interview about his age and lack of grey hair, Farrell laughed.
“Sixty,” he replied.
“Are you 60?” Beach replied. “Boy, you’re looking good for 60.”
Still, Farrell also stressed he couldn’t remember much — because, as he put it after a pause to set up the joke, there’s been “a lot of water under the bridge and so on — I mean, we’re talking about events that happened 12, 13, 14 years ago.”
Beach sent Farrell an email on April 26, 2018 to confirm what he said in the interview: “In my phone conversation with Mrs. Farrell on April 20, 2018 she indicated that you are about 75 now. That is consistent with your having told me you were 60 in 2003. … It would be particularly virtuous of you if you would send me a copy of your birth certificate…”
Farrell ignored him (and did not reply to requests for comment).
In his affidavit, Beach said “thus I concluded that on Mach 6, 2013, he was only 69 or 70 years old, not “approaching 90 years old.”
The appeal court, however, overturned Leask’s judgment because he made numerous errors and mistakes.
“In my view, Rain Coast’s action must be dismissed in its entirety,” concluded Justice Gail Dickson, clearing Vander Zalm’s administration of abuse of power. “A thorough review of the pleadings, the law and the record reveals no evidence capable of supporting Rain Coast’s allegations of targeted malice or deliberate unlawfulness in the execution of their public duties against the Crown defendants.”
Beach, however, has not given up.
“I decided to try to obtain independent evidence of Farrell’s age, so I hired Kelly Gushue, a private investigator, and within days she obtained a document from TransUnion (a large credit rating agency) indicating that Farrell was born on July 11, 1942 — and he would have been 60 in 2003,” he explained.
“Farrell would only have been 70 at the time of trial, not almost 90. He was not too old to testify!”
Beach, who turns 70 in October, now pins his hopes on the Supreme Court of Canada to correct the “gross exaggeration or intentional misrepresentation” of Farrell’s age and restore Leask’s verdict or order a new trial.
He refuses to believe the courts are the graveyard of broken dreams and no country for old men.