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Pacific Centre Limited v. Creative Energy Vancouver Platforms Inc., Westbank Projects Corp. and others, 2020 BCSC 676

reasons for judgment 

Cadillac Fairview Limited and its property, Pacific Centre mall, were unsuccessful in their efforts to stop a massive redevelopment of 720 Beatty St., site of the Creative Energy steam heat plant which serves the energy needs of over 200 commercial and residential buildings throughout downtown Vancouver.   Our clients, Creative Energy and Westbank Projects Corp., are teaming up to build an architecturally novel office tower and entertainment facilities bridging Vancouver’s Yaletown district with BC Place Stadium, along with two state-of-the-art steam generation plants designed to help the City to significantly improve compliance with its greenhouse gas emissions targets. 

Pacific Centre, Vancouver’s largest shopping mall, brought legal proceedings against Creative Energy, Westbank Projects and others  to halt the project and to instead force Creative Energy to offer the property to Cadillac Fairview’s subsidiary at a price alleged to be more than $100 million below fair market value.   Pacific Centre claimed this right to purchase based on a 1970 covenant registered against the land.   That covenant was expressed to be triggered should Creative Energy decide to sell the whole of its property, assets, business and undertaking or such part of it as is required to generate and deliver steam to Pacific Centre mall. 

The Supreme Court of British Columbia found that the main purpose of the covenant was to ensure a continuous supply of steam heat to the Pacific Centre Mall.  If Creative Energy were to decide to offer its utility assets for sale, thereby posing a threat to Pacific Centre’s security of supply, the mall would have the right to match an existing offer.   In this case, however, the Court agreed with Kornfeld litigators Dan Parlow’s and Shane Coblin’s submission that the right of purchase had not been triggered by either the proposed corporate reorganization or any element of the proposed project, the deal having been structured so that Creative Energy maintains ownership over the steam generation assets and undertaking.  Accordingly, the Court dismissed the Plaintiff’s action.     

Dan and Shane were supported by litigators Devin Lucas and Susan Smith. 

This exciting new Creative Energy / Westbank project at 720 Beatty Street and 701 Expo Blvd, together with the new steam plant at BC Place Stadium, have received regulatory approval from the British Columbia Utilities Commission and are the subject of a rezoning application before the City of Vancouver. 

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