Executive Summary: Key Legal and Evidentiary Issues

• Nova-BioRubber Green Technologies Inc. appeals the dismissal of its civil action following a successful no evidence motion brought by the respondent at trial.
   
• Central to the appeal is whether the trial judge erred in granting the no evidence motion under R. 12-5(4) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.
   
• Nova filed six legal bases for its damages claim, including negligence, misfeasance in public office, breach of statutory duty, and breach of the Canadian Human Rights Act and Canadian Charter of Rights and Freedoms.
   
• Prior judicial review proceedings (2022 BCCA 247) had established that the Foundation breached procedural fairness, but that finding did not entitle Nova to sue for damages.
   
• Additional grounds raised on appeal — including judicial bias, procedural unfairness at trial, inadequacy of reasons, and new claims for financial compensation — were all rejected as unsupported or misguided.
   
• An offer to settle of $25,000 made by the Foundation early in the proceedings below resulted in the trial judge awarding double costs against Nova.

Facts of the case

Nova-BioRubber Green Technologies Inc. ("Nova"), a company whose principal is Dr. Buranov, a research scientist, applied in 2019 for scientific grants administered by the Investment Agriculture Foundation British Columbia (the "Foundation"). The Foundation declined the applications. Nova petitioned for judicial review of that decision, which was dismissed at first instance but subsequently allowed by the BC Court of Appeal in 2022 BCCA 247. The Court of Appeal found that the Foundation had breached procedural fairness by rejecting Nova's applications on the basis of two concerns it had not communicated to Nova, and remitted the matter for reconsideration. The 2022 decision expressly stated that the remittal order was not an indication that the Foundation must grant the applications; its sole purpose was to allow Nova's applications to be adjudicated in a procedurally fair manner. Following the remittal, the Foundation reconsidered the applications, gave Dr. Buranov an opportunity to address the additional concerns, and in August 2022 again determined that grants should not be awarded to Nova.

In response, Nova filed a notice of civil claim in April 2023, identifying six legal bases in support of a claim for a minimum of $900,000 in damages: (a) intentional interference with economic relations; (b) lack of transparency and conflict of interest; (c) negligence; (d) breach of public confidence and duty; (e) breach of statutory duty under the Financial Administration Act and Conflict of Interests Act; and (f) breach of the Canadian Human Rights Act and Canadian Charter of Rights and Freedoms. Nova eventually abandoned its claim for intentional interference with economic relations and proceeded on the five remaining bases.

Procedural rule at issue

The trial began on October 27, 2025, and lasted two days. Dr. Buranov represented Nova and, after making an opening statement, gave evidence and was cross-examined. After Nova closed its case, the Foundation applied to have the claims dismissed under R. 12-5(4) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which provides that at the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case. The trial judge granted the application, finding that Nova had led no evidence to support its claims, and dismissed the case in its entirety. Following written submissions, the judge also awarded the Foundation double costs, concluding that Nova should have accepted the Foundation's offer to settle of $25,000 made early in the proceedings.

Reasoning and analysis

The trial judge applied the correct analytical framework under R. 12-5(4), asking whether Nova had failed to adduce evidence upon which a properly instructed trier of fact, acting reasonably, could find for the plaintiff — specifically, whether a reasonable trier of fact "could" find in Nova's favour, not whether one "would" do so, citing Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242. To identify the causes of action in issue, the judge read Nova's pleading generously — for example, recasting the claim for "breach of public confidence and duty" as a claim for misfeasance in public office. He reasoned that many of the claims sought relief available only on judicial review, and that for those claims capable of supporting an award of damages, such as misfeasance and negligence, the causes of action were not made out on the pleading and, in any event, no evidence had been led in support of them.

On appeal, Nova raised 23 grounds of appeal. The Court of Appeal addressed each in turn. The court rejected Nova's assertion that the trial was procedurally unfair because Dr. Buranov was "taken by surprise" by the no evidence motion, noting that the Foundation brought the motion in accordance with the Rules, that a no evidence motion is available to defendants when a plaintiff fails to prove essential elements of its claim, and that Dr. Buranov was invited to make submissions on the motion and did so. The court also rejected Nova's allegation of judicial bias, finding nothing in the record to support it and observing that an adverse ruling does not demonstrate bias. The court found the trial judge's reasons clear and concise, contrary to Nova's submission that they were inadequate. The court further rejected Nova's argument that the 2022 BCCA 247 decision directing a rehearing entitled Nova to damages, explaining that the only remedy granted on judicial review was a rehearing of the applications, and that damages are not available on judicial review. The court also declined to entertain Nova's new claim for financial compensation for low salary and development expenses from 2012 to 2019, as the claim had not been pleaded or raised at trial. Finally, the court dismissed Nova's argument that the Foundation's offer to settle constituted an admission of wrongful conduct, clarifying that an offer to settle is not an admission of liability.

Ruling and outcome

Finding no basis on which to interfere with the trial judge's decision, the BC Court of Appeal unanimously dismissed the appeal. The Foundation was the successful party across all proceedings. No exact monetary amount was ordered in the Court of Appeal decision itself; however, the trial judge's award of double costs to the Foundation — flowing from Nova's failure to accept the $25,000 settlement offer — remained undisturbed.