The court hearing to debate an application by Montrose Properties to reopen the Cowichan Tribes land title case is being delayed.
David Rosenberg, the lawyer representing the Cowichan Tribes, first wants to ascertain how much the company knew of the case before it was decided last August.
Montrose argues it knew little and was unaware of the potential impacts to its land, so it deserves a chance to be added as a defendant and have a say in court.
In an attempt to prove otherwise, Rosenberg is filing an application to force the company and the province to turn over a large trove of correspondence from the years leading up to the case.
Montrose’s application to reopen the case was set to be heard on Feb. 11 and 12. Instead, B.C. Supreme Court Justice Barbara Young will now consider Rosenberg’s document request application in a hearing in Victoria on Feb. 13.
Rosenberg summarized his argument for the release of information in a case conference hearing on Tuesday, Feb. 3.
His side wants to know what Montrose knew about the case, and when, contending that if the company was aware of the details of the case before it was decided, it is an “abuse of process” to let the company suddenly be added as a party and reopen the case after it is already decided.
“We seek this documentation in order to understand where, when and how the applicants Montrose became aware of the litigation,” he said.
The trial took more than 500 days, and Young’s decision stretched beyond 800 pages.
The Aug. 7 decision confers Aboriginal title and rights to an area of Richmond with both public and private parcels of land. Title and rights were declared on the public portions, while the province is ordered to reconcile “in good faith” the private land, in which the judge found both Aboriginal and fee-simple title exist.
A 2017 order declared the court had no obligation to inform private property owners in the area, although it does not prohibit the province, federal government or the city from contacting landowners independently.
Montrose complains that private property owners were not included as defendants in the case, even though the eventual decision does affect them.
Premier David Eby said on Tuesday that the province decided not to inform property owners because it would be taking on liability if it did. If the province provided inaccurate or misunderstood information, it could be sued, he said.
“In addition, we had assurances from the court that their interest would not be affected,” he said. “So when we put all those factors together, we made the decision we did.”
The province also did not want to close the door to a possible appeal.
“Had we provided notice, those property owners would not have the right of appeal that they have right now to challenge this decision to say that they weren’t provided notice and to say that the judge was wrong in the final decision,” he said.
Montrose’s application to reopen the case says the company only knew as much about the case as the general public, but was not aware of the potential implications for private property rights.
Rosenberg argues this is a dubious claim because Montrose was involved in numerous developments that would have required the province to inform the company as part of due diligence in those matters. This, he argues, would include evaluating the strength of the Cowichan claim.
“Their documentation is very thin,” Rosenberg said in the Tuesday case conference hearing. “They don’t offer any explanation about how they knew, what steps they took — and these are factors that will have some impact on the merits of whether they should be added as a party.”
His request includes seven categories, mostly relating to specific developments or permit applications that may have required correspondence about the case.
The request also seeks “Any other documents that the province sent to [Montrose] regarding the Cowichan legal proceedings between 2014 and 2025.”
In the hearing on Tuesday, Keith Bergner, the province’s lawyer, said there were “thousands” of pages of correspondence between the province and Montrose on these matters. After conferring with colleagues, he said it would likely take two weeks to gather the documents.
Both Montrose and the province argue that the correspondence is “neither necessary nor relevant” to the application to reopen the case.
Montrose opposed providing it altogether, while the province agreed to release documents that would already be publicly available through a freedom of information request.
Joan Young, the lawyer for Montrose, opted to save her arguments against providing the documents for the Feb. 13 hearing.