Decision Date: February 3, 2000

Panel: Toby Vigod, Dr. Robert Cameron, Ken Maddox

Keywords: Waste Management Act – s.31; Environment Management Act – s.11(14.2); res judicata; issue estoppel; privies; reconsideration, costs

This was an appeal against a decision of the Assistant Regional Waste Manager to issue a Pollution Abatement Order that required the Appellants to remove 55,000 m3 of demolition waste dumped at an unauthorized site. The Assistant Manager named the five companies, stating that they were “run as one” for a common purpose and shouldn’t hide behind a corporate veil. The Appellants argued that the site was zoned for the purpose that required it to be filled and that, in any event, the Order should be stayed until the court proceedings against it are decided. It also argued that the Order should be cancelled against Burns Industrial Park Ltd. (“BIPL”) and Fauna Landfill because these companies were not involved in the landfilling activities, and asked the Panel to reconsider an earlier decision of the Board regarding the boundaries of the site. The Respondent and Third Party requested an order for costs against the Appellants.

The Panel found no evidence to substantiate the Appellants claim that the land in question was zoned for a purpose that allowed it to be filled. The Panel also found that the doctrine of issue estoppel prevented it from reconsidering an earlier Board decision on the boundary of the site. Based on expert evidence and the Board’s previous finding, the Panel concluded that the landfilled materials constitute pollution, and that the requirements in the Order were necessary and reasonable for the rehabilitation and protection of the environment. It found that BIPL controlled access to the unauthorized site from its adjoining property and was, therefore, properly named under section 31 of the Act. However, the Panel held that Fauna Landfill should not have been named – it was only named because it was associated by common ownership with the other Appellants.

Finally, the Panel rejected the Appellants request for a stay pending a decision by the courts as, even if the court arrives at a different conclusion than the Board, the court’s decision is based on a higher standard of proof and would not affect the Board’s decision.

The Panel denied the requests for costs, as the appeal was found not to be frivolous or vexatious. The appeal was allowed in part. The application for costs was dismissed.