Decision Date: February 5, 2004

Panel: Alan Andison

Keywords: Waste Management Act – s. 43 definition of “decision”; jurisdiction; appealable decision; amended order;

Beazer East Inc. (“Beazer”) appealed an amended remediation order issued by the Assistant Manager that changed the identification of responsible persons in the original order.  The amended order used the word “persons” in place of the word “companies,” and required all responsible persons Beazer, Michael Wilson, Atlantic Industries Ltd. (“Atlantic”) and Canadian National Railway (“CNR”), to prepare a performance-monitoring program and post financial security for the replacement costs and operating and maintenance costs of the remediation work.  Beazer appealed on a number of grounds, including whether the Assistant Manager erred in failing to name the Provincial Crown (the “Province”) and the North Fraser Port Authority (“NFPA”).  Among other things, Beazer requested that the Board further amend the order to add the Province and NFPA as responsible persons.

The issues in this preliminary decision were: whether the Assistant Manager’s failure to name the Province and NFPA in the amended order was an appealable “decision” within the meaning of section 43 of the Waste Management Act (the “Act”); and if so, whether the Board had the jurisdiction to add the Province and NFPA to the order.

The Board found that the failure to name, and the failure to consider naming, additional parties in the amended order was not an appealable “decision” within the meaning of section 43 of the Act.  In particular, the Board found that the reasoning in Canadian National Railway Company v. Regional Waste Manager (Appeal No. 2001-WAS-025) applied to this appeal. That is, the meaning of “decision” in section 43 is exhaustive, and a decision must fall under one of the categories listed in section 43 in order to be appealed. The Board held that the failure or refusal to amend an order to include new previously unnamed parties was not the “imposition of a requirement,” an “exercise of a power” or the “inclusion of a requirement or condition,” and was therefore, not an appealable decision.

The Board noted that the issues of whether to name the Province or NFPA in the amended order were not before the Assistant Manager and were not addressed in the amended order.  The Board found, therefore, that those issues cannot form the basis of an appeal of the amended order.  The Board also noted that the issue of whether to include additional parties had already been addressed by the Director of Waste Management, who had refused to add the parties on the basis that he was not convinced it was necessary to ensure the remediation objectives were achieved.  Furthermore, the Director’s decision was appealed and the Board dismissed that appeal on the basis that there was no appealable decision.

The Board found that it had no jurisdiction over these grounds of appeal or the remedy requested.  Therefore, these grounds for appeal were dismissed.  However, the appeal may proceed on the remaining grounds for appeal.