Decision Date: December 8, 2017

Court: B.C.S.C., Justice Brundrett

Citation: 2017 BCSC 2267

The City of Burnaby (“Burnaby”) sought a judicial review by the BC Supreme Court of a decision issued by the Environmental Appeal Board (the “Board”) regarding Burnaby’s standing to appeal a certificate of compliance issued to Suncor Energy Inc. (“Suncor”) regarding remediation of property owned by Suncor.

Suncor’s property was adjacent to property owned by Burnaby. In 1995, both properties were found to be contaminated with petroleum hydrocarbons that originated on Suncor’s property. From 1996 to 2005, Suncor voluntarily remediated both properties to risk-based standards.

From 2008 to 2015, Suncor’s environmental consultant conducted additional investigations of both properties. Suncor’s consultant identified volatile organic compounds (VOCs) in the deep groundwater on both properties, and concluded that these compounds had likely originated from another site, and not from Suncor’s property. As a result, Suncor did not delineate or remediate the VOCs on Burnaby’s property. Subsequently, Suncor applied for certificates of compliance for both properties.

In December 2015, the Director, Environmental Management Act (the “Director”), Ministry of Environment, issued certificates of compliance for both properties pursuant to section 53 of the Environmental Management Act (the “Act”). In issuing the certificates, the Director accepted Suncor’s position that it was not responsible for delineating or remediating the VOC contamination on Burnaby’s property.

In January 2016, Burnaby appealed both certificates of compliance. Among other things, Burnaby submitted that the two properties were one contaminated site, the two certificates were interrelated, there was insufficient evidence to support a conclusion about where the VOC contamination had originated, and the Director ought to have required Suncor to delineate and remediate all contamination that was sourced from Suncor’s land.

Before the appeals were heard, Suncor requested that the Board dismiss Burnaby’s appeal of the certificate issued for Suncor’s land. Suncor argued that Burnaby was not a “person aggrieved” by the issuance of that certificate within the meaning of section 100(1) of the Act.

To determine whether Burnaby was a “person aggrieved” by the certificate for Suncor’s property, the Board applied the legal test that it had applied in previous cases, which was confirmed in Gagne v. Sharpe, 2014 BCSC 2077. Specifically, the Board considered whether Burnaby had provided sufficient evidence to establish, on a prima facie basis, that the certificate for Suncor’s land prejudicially affects Burnaby’s interests such that it was a “person aggrieved” under section 100(1) of the Act.

The Board found that Burnaby had not demonstrated, on a prima facie basis, that the issuance of the certificate for Suncor’s property prejudiced Burnaby’s interests. The Board found that Burnaby’s concerns were only relevant to its appeal against the certificate for Burnaby’s land. In its appeal against that certificate, Burnaby could still present evidence and arguments regarding whether there were flaws in the investigation, delineation and remediation of Suncor’s land. Furthermore, if contaminants on Burnaby’s land were not addressed by Suncor’s remediation, Suncor may be subject to further regulatory action by the Director. There was no evidence that the issuance of the certificate for Suncor’s land prejudicially affected Burnaby’s interests. Accordingly, the Board dismissed Burnaby’s appeal against the certificate for Suncor’s land.

Burnaby sought a judicial review of the Board’s decision by the BC Supreme Court, and requested that the decision be set aside.

The Court held that the reasonableness standard applied to its review of the Board’s decision, meaning that the Court would not interfere with the Board’s decision as long as the decision fell within the range of possible, acceptable outcomes. The Court held that it must approach the Board’s decision with a high degree of deference, because the Board is an expert tribunal and the decision under review involved the Board’s interpretation of one of its “home” statutes, with which the Board has particular familiarity.

The Court found that the Board’s decision was reasonable. The Court held that the Board’s decision was not contrary to the objectives underlying the statutory regime for remediating contaminated sites. Also, it was not unreasonable for the Board to have considered that essentially the same remedies were available to Burnaby through its appeals against either certificate. In assessing Burnaby’s standing to appeal the certificate pertaining to Suncor’s property, the Board considered the adequacy of the potential relief available to Burnaby if the Director’s analysis underlying the issuance of that certificate proved to be wrong. All of these considerations involved the interpretation and application of a statute within the Board’s purview, and the Board’s findings were reasonable.

Accordingly, the Court confirmed the Board’s decision, and dismissed Burnaby’s petition for judicial review.