A Fernie real estate agent has been ordered to pay a Calgary businessman over $1.5 million for negligence according to a B.C. Supreme Court ruling.

In a Feb. 3 ruling, Todd Fyfe of Fernie Real Estate was found to be negligent in failing to alert Calgary businessman Kevin Dunn that a large property between Fernie and Sparwood that Dunn eventually bought was being considered for inclusion in the Agricultural Land Reserve (ALR) – which is land in B.C. that protects agriculturally suitable land for agricultural use.

Dunn used Fyfe as his agent when researching the property, at 1 Beese Rd, and claimed that Fyfe should have informed him that there was an ALR land review for the area, and the property was being considered for inclusion.

The entire property – all 160 hectares of it – was included within the ALR shortly after Dunn closed on the purchase for $775,000 in late 2013.

Dunn claimed that Fyfe didn’t tell him about the review, or that he had the option to avoid having the property included by opting out.

Dunn had purchased the property in order to construct a $3-million ski lodge, and when plans progressed he ran into obstacles due to the ALR, which largely prohibits commercial development.

In mid-2014, Dunn’s plans to construct an 8,000 sq. foot lodge were denied by the Regional District of East Kootenay (RDEK) on the basis of the property being newly within the ALR. The denial began a back-and-forth process for Dunn as a compromise was sought. A building permit was eventually issued by the RDEK in Sept. 2016, and a bed and breakfast called Brooks Creek Ranch opened on the property in August 2018, with further plans still on pause.

While Dunn said in the ruling that he did not hold Fyfe responsible for all the problems the development came up against in regards to the ALR, he sought over $2.6 million in damages due to having to throw away development plans and develop new ones as a result of the ALR, the difference in capital costs between the two plans, for associated costs in seeking professional advice and for the loss of profits “as a result of construction delays.”

Fyfe was found liable for failing to inform Dunn of the ALR boundary change and the possibility of opting out.

In the ruling, Dunn’s claims were deemed too high, and he was instead awarded a little over $1.5 million in damages.

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