Decision Date: October 18, 2006

Panel: Alan Andison

Keywords: Waste Management Act – ss. 26.5(1), 26(1); owner; real property; chattel; liability for remediation; contaminated site.

Canadian Pacific Railway (“CPR”) appealed a decision of the Deputy Director of Waste Management (the “Director”), Ministry of Environment, Lands and Parks (the “Ministry”) which named CPR as a responsible person in a remediation order.  The Director’s decision was based on a finding that CPR was a “past owner” of rail spurs on the contaminated site.  Before proceeding to a hearing on all issues in the appeal, the parties agreed to deal with the following legal question:

Does the ownership of personal property situated on someone else’s real property make the owner of the personal property an owner of the real property under the Waste Management Act?

CPR submitted that railway sidings placed on land were chattels, not fixtures, and as a result ownership of the sidings was not the same as ownership of real property.  It also submitted that the Legislature intended for “owner” to be given its ordinary meaning and to only encompass persons possessing established incidents of ownership of real property at common law.  BC Hydro supported CPR’s submissions and added that the intent of the Legislature was to capture those owners who had the opportunity to affect whether a site becomes contaminated.

General Chemical Canada and the North Fraser Port Authority submitted that the definition of “owner” under the Act is much broader than the common law definition and is intended to encompass all persons responsible for polluting a site.  They submitted that it was irrelevant whether the railway sidings were chattels or fixtures, and that the real issue was whether CPR “occupied”, “possessed”, or “controlled the use of” the site.

The Board held that the definition of “owner” in the Act can be broken down into four components:

• Possession of real property
• Right of control of real property
• Occupation of real property
• Control of the use of real property

A person need not meet all four components in order to be an “owner”; it is sufficient for a person to fall into any one of the categories.  Although some of these elements are incidents of ownership of real property, there is no requirement under the Act for ownership of real property.

The Board further held that the meaning of “owner” must be determined in a manner consistent with the purposes and objective of the Act.  To effect remediation of contaminated sites, the Act casts a broad net of liability to capture those who cause or contribute to pollution and those who may have benefited from the polluting activities of others on their property.  Thus, there must also be some connection between a person’s possession, right of control, occupation, or control of the use of real property and the pollution for the person to be named as an “owner” in a remediation order.

For these reasons, the Board found that the definition of “owner” in the Act is broader than the common law meaning of owner, and that legal ownership of real property is not required for a person to be an “owner”.  It answered the question of law posed by the parties in the affirmative.

CPR’s request to dismiss the appeal was denied.