Kamloops

17-Jun-16

No. KAM-S-S-52967
Kamloops Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:
DISTRICT OF LILLOOET
PLAINTIFF
AND:
GRANT EUGENE ARTHUR LOYER
DEFENDANT

RESPONSE TO CIVIL CLAIM

Filed by:

Grant Loyer

Part 1: FACTS
Division 1 Defendant's Response to Facts
1.

The facts alleged in paragraph 1, 2, 4, 10, 13, 15, 17 and 21 of Part 1 of the
Notice of Civil Claim are admitted.

2.

The facts alleged in paragraphs 3(a), 5, 6, 7, 9, 11, 12, 14, 15, 19 and 20 of Part
1 of the Notice of Civil Claim are denied.

3.

The facts alleged in paragraphs 1, 3(b), 8, 13, 16, 18 of Part 1 of the Notice of
Civil Claim are outside the knowledge of the defendant.
Division 2 Defendant's Version of Facts

4.

Any reference to defined terms which are not defined in this Response refer to
the defined terms in the Notice of Civil Claim (the Claim).

5.

The inclusion of the Indemnity Provision was proposed by the defendant and
other employees of the plaintiff in early 2012 and was originally proposed to be
included in the employment contracts of several senior managers employed by
the plaintiff.

6.

In response to paragraph 3(a), the defendant admits that he owed the plaintiff a
fiduciary duty including, inter alia, duties of loyalty and utmost good faith but
denies that such duties required him to put the interests of the plaintiff above his
own in the circumstance of negotiating changes to his employment contract

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including the inclusion of the Indemnity Provision. The defendants duty in this
regard was to disclose the plaintiff all material facts relating to the transaction.
7.

In response to paragraphs 5,6 and 7 of the Claim, the defendant represented to

members of the Plaintiffs Council, including the mayor, before it voted to approve
the inclusion of the Indemnity Provision that he had not sought a legal opinion on
the amendment of his contract and that such a legal opinion could be obtained.
At no time did the defendant make any representations about the whether the
plaintiff had or did not have legal authority to enter into the Indemnity Provision.

8.

In response to paragraph 9, Karl Kempfle was not a plaintiff when this action was
commenced.

9.

In response to paragraph 11 of the Claim, there was no agreement to terminate

the defendants employment. The plaintiff terminated his employment contract
unilaterally on August 29, 2013 and sent a letter to him on that date notifying him
of the termination of his employment (the Termination Letter).

10.

In response to paragraph 12, the Agreement was not executed on or about

October 2013 but rather several months later.

11.

In response to paragraph 15 of the Claim, the defendant did not owe the plaintiff
a duty to make the alleged recommendations in the adversarial context of the
negotiation of his severance entitlements.

12.

In response to paragraphs 19 and 20 of the Claim, the plaintiff has received the
benefit of the plaintiffs work in exchange for the Indemnity Agreement and has
received a release from a potential breach of contract lawsuit by the defendant in
exchange for the inclusion of the Indemnity Provision in the Agreement.
Furthermore, the defendant has received no direct benefit as he would not have
commenced the defamation action in the absence of the Indemnity Provision.

13.

In response to the all of the claims set out in the Claim, the Indemnity Provision
was within the plaintiffs statutory powers to enter into and is enforceable.
Division 3 Additional Facts

14.

The Indemnity Provision initially provided that 100% of any Court awarded costs
and 50% of any damages recovered by the defendant would go the Lillooet
Community Foundation (the Foundation), an endowment fund established to
improve the social, cultural, artistic, educational, and recreational well-being of
the residents of Lillooet.

15.

On July 2, 2013, with the parties agreed to amend the defendants employment
contract so that 50% of any damages recovered by the defendant would go to

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the Foundation and the remaining 50% would go to the plaintiff for coaching and
advisory programs for the Plaintiffs Council and employees.
Part 2: RESPONSE TO RELIEF SOUGHT
16.

The defendant DOES NOT consent to the granting of the relief sought in Part 2
of the Notice of Civil Claim.

17.

The defendant opposes the granting of ALL of the relief sought in Part 2 of the
Notice of Civil Claim.

18.

The defendant takes no position on the granting of relief sought in NONE of the
paragraphs of Part 2 of the Notice of Civil Claim.

Part 3: LEGAL BASIS

19.

At all material times the plaintiffs powers to enter into contracts were governed
by the Community Charter which provides that the plaintiff had capacity, rights,
powers and privileges of a natural person of full capacity.

20.

The plaintiff acted within its statutory powers when it agreed to include the
Indemnity Provision in the defendants employment contract in 2012 and when it
agreed to amend the Indemnity Provision in 2013 and when it agreed to include
the Indemnity Provision in the Agreement.

21.

The plaintiff does not allege any facts which could establish that the plaintiff
acted outside this statutory grant of power.

22.

The plaintiff has failed to disclose a cause of action which would render the
Indemnity Provision ultra vires.

23.

In the alternative, the Indemnity Provision is not contrary to section 2 of the

Canadian Charter of Rights and Freedoms.

Defendants address for service:

Chris Forguson Employment Law

1500-701 West Georgia Street
Vancouver, British Columbia
Canada V7Y 1C6
Attn: Chris Forguson

Fax number address for service (if any):

N/A

E-mail address for service (if any):

N/A

Dated

June 17, 2016

Signature of Lawyer for filing Defendant
Chris Forguson

Rule 7-1 (1) of the Supreme Court Civil Rules states:

(1)

Unless all parties of record consent or the court otherwise orders, each
party of record to an action must, within 35 days after the end of the
pleading period,
(a)

(b)

prepare a list of documents in Form 22 that lists

(i)

all documents that are or have been in the partys

possession or control and that could, if available, be used by
any party at trial to prove or disprove a material fact, and

(ii)

all other documents to which the party intends to refer at

trial, and

serve the list on all parties of record.