Background
Nova-BioRubber Green Technologies Inc. (Nova), a company whose principal is research scientist Dr. Buranov, applied in 2019 for scientific grants from the Investment Agriculture Foundation British Columbia. The Foundation declined the applications. Nova petitioned for judicial review, and although the petition was dismissed at first instance, the Court of Appeal allowed it in 2022 BCCA 247, finding that the Foundation had breached procedural fairness by rejecting the applications on the basis of two concerns never communicated to Nova. The Court remitted the matter to the Foundation for a procedurally fair rehearing, expressly stating it was not directing the Foundation to approve the applications and that no misconduct by Foundation employees had been established.
On reconsideration in August 2022, the Foundation again declined to award grants to Nova. Nova then commenced a civil action in April 2023 seeking a minimum of $900,000 in damages under five heads: lack of transparency and conflict of interest, negligence, breach of public confidence and duty, breach of statutory duty under the Financial Administration Act and Conflict of Interests Act, and breach of the Canadian Human Rights Act and Canadian Charter of Rights and Freedoms.
Trial began on October 27, 2025. Dr. Buranov represented Nova, gave evidence, and was cross-examined. After Nova closed its case, the Foundation applied under Rule 12-5(4) of the Supreme Court Civil Rules for dismissal on the ground that there was no evidence to support the claims. The trial judge granted the motion, dismissed the action in its entirety, and subsequently awarded the Foundation double costs on the basis that Nova ought to have accepted the Foundation’s earlier $25,000 offer to settle.
The Court’s Holding
A unanimous three-judge panel (Fenlon, Winteringham, and Iyer JJ.A.) dismissed the appeal. Writing for the court, Justice Fenlon found that Nova had not established any error in the trial judge’s reasoning or decisions. The judge had applied the correct legal standard under Rule 12-5(4) — asking whether a reasonable trier of fact, properly instructed, could find for the plaintiff — and had read Nova’s pleadings generously before concluding that the essential elements of the causes of action were not made out and that no evidence had been adduced in support of them.
The court rejected each of Nova’s additional grounds in turn. The no-evidence motion was procedurally available to the Foundation under the Rules, and Nova had been given the opportunity to oppose it. There was nothing in the record to support the allegation of judicial bias, and the trial judge’s reasons were found to be clear and concise. The court also corrected Nova’s central misapprehension: the 2022 judicial review decision granted only a procedurally fair rehearing, not damages and not a direction to approve the applications. Damages are not available as a remedy on judicial review.
Nova’s attempt on appeal to raise entirely new compensation claims for low salary and development expenses from 2012 to 2019 was rejected on the ground that the Court of Appeal does not hear matters at first instance and cannot consider claims not pleaded or argued below. The double-costs award was also upheld; the court clarified that an offer to settle is not an admission of liability but simply reflects a party’s willingness to avoid the costs and burden of litigation.
Key Takeaways
- A successful no-evidence motion under Rule 12-5(4) of the Supreme Court Civil Rules properly ends a plaintiff’s case where no evidence has been adduced on which a reasonable trier of fact could find in the plaintiff’s favour, regardless of how many grounds of claim are pleaded.
- A prior finding of procedural fairness breach on judicial review does not entitle a party to damages in a subsequent civil action; the only remedy available on judicial review is a procedurally fair rehearing, and the reviewing court’s remittal order does not dictate the outcome of that rehearing.
- An offer to settle carries no admission of liability and failure to accept a reasonable offer can attract double costs even where the offeree ultimately loses at trial.
- New claims not pleaded at trial cannot be raised for the first time on appeal, as a court of appeal reviews the proceedings below rather than hearing matters at first instance.
Why It Matters
This decision reinforces the limited scope of judicial review as a remedy in Canada. Parties who succeed on procedural fairness grounds obtain a fair reconsideration — nothing more. A decision-maker who again reaches an adverse outcome after a proper rehearing does not thereby expose itself to a civil damages action, and plaintiffs who conflate the administrative and civil law regimes risk having their claims dismissed summarily on a no-evidence motion.
The case also serves as a practical reminder about litigation economics: an offer to settle is a risk-management tool, not a concession of fault, and courts will hold parties to the cost consequences of unreasonably rejecting such offers. For litigants appearing without full legal counsel, the decision underscores the importance of properly pleading all intended causes of action before trial, as appellate courts will not entertain entirely new claims raised for the first time on appeal.