Decision Date: January 17, 2006

Panel: Alan Andison

Keywords: Contaminated Sites Regulation – sections 48 and 50; Waste Management Act – section 27.6(2), (3) and 28(6); indemnity clause; contamination; jurisdictional authority; conditional certificate.

Petro-Canada appealed a conditional certificate of compliance (the “Conditional Certificate”), issued by the Assistant Regional Waste Manager (the “Regional Manager”), Ministry of Water, Land and Air Protection (now the Ministry of Environment) (the “Ministry”) as well as a certificate of compliance (the “Certificate”) issued by the Deputy Director of Waste Management for the Ministry.  Both the Conditional Certificate and the Certificate pertain to lands owned by Petro-Canada that have been remediated to address soil and groundwater contamination.

Petro-Canada submitted that an indemnity clause in favour of the Crown in the Conditional Certificate and the Certificate is void and unenforceable due to a lack of jurisdiction.  Petro-Canada requested that the Board remove the indemnity clauses or, alternatively, declare them void and unenforceable.

The Board considered whether any authority to include the indemnity clauses in the Conditional Certificate and the Certificate may be found in sections 27.6(2) or 28.6 of the Waste Management Act (the “Act”).  The Board also considered section 27.6(3)(e) of the Act and sections 48 and 51 of the Contaminated Sites Regulation (the “Regulation”), which empower managers to require a responsible person to register a restrictive covenant under section 219 of the Land Title Act with regard to sites remediated in accordance with risk-based standards.

The Board concluded that express or implied jurisdiction to include the indemnity clauses in the Conditional Certificate and the Certificate cannot be found in the relevant sections of the Act or the Regulation.

Finally, the Board considered whether authority may be implied based on the ancillary powers provisions in section 27 of the Interpretation Act.  The Board addressed whether it was necessary for the Respondents to have the power to include the indemnity clauses in the Certificate and the Conditional Certificate in order to enable them to exercise their powers under the Act.  The Board found that it was not “necessary” within the meaning of section 27(2) of the Interpretation Act, to deem that the Respondents had the power to include the indemnity clauses in the Certificate and the Conditional Certificate.

For all of these reasons, the Board found that the Respondents had no authority under the Act or the Regulation to include the indemnity clauses in the Certificate and the Conditional Certificate.

Accordingly, the appeal was allowed.