Decision Date: June 11, 2007

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99, s. 48(12); appealable decision; contaminated site.

In 2003, a remediation order (the “Order”) was issued to BC Hydro and Power Authority, BC Rail Ltd. (“BC Rail”), the City of Quesnel, Shell Canada Products Limited (“Shell”) and Imperial Oil Limited (“Imperial”) for a contaminated site located in Quesnel, BC. The parties named in the Order coordinated compliance and dealt with liability among themselves. As a result, BC Rail took over remediation of the site and all of the parties, except the City of Quesnel, reached individual settlements with BC Rail. Consequently, BC Rail asked the Director to remove the settled parties from the Order pursuant to his powers under section 48(12) of the Environmental Management Act (the “Act”). The request was denied. Shell and Imperial filed separate appeals alleging that the Director erred when he refused to remove their names from the Order. Imperial asked the Board to make a preliminary ruling on the issue of whether the Director’s refusal is an appealable decision.

In order for the Board to consider the appeals of Imperial and Shell, the Director’s refusal must fall within one of the subsections set out in the definition of “decision” in section 99. Imperial argued that when the Director refused to amend the Order, he was “exercis[ing] a power”, which is specified in subsection 99(c) as appealable.

The Board had previously considered whether refusing a request to remove named parties from a remediation order is an appealable decision in Canadian National Railway Company v. Regional Waste Manager, Appeal No. 2001-WAS-025, May 24, 2002; [2002] B.C.E.A. No. 31 (Q.L.) (“CNR”) . In that case, the Board determined that the detailed definition of “decision” found in the Act was not meant to include failures or refusals to act unless such an intent was made explicit, as was the case in one subsection only. The Board found that the Legislature sought to limit the types of decisions that would be subject to a right of appeal to the Board, and it chose to do so by carefully wording the definition of “decision” in terms of positive acts and negative acts. As there was no reference to a negative act in the subsection defining an “exercise of power” as an appealable decision, the Board concluded that the refusal to amend the order did not constitute an “exercise of power” and was not an appealable decision. The Board noted that this interpretation was adopted in subsequent decisions by the Board and received general support in the 2005 decision of the Supreme Court of British Columbia in Houweling Nurseries v. District Manager of the GVRD et al., 2005 BCSC 894.

As a result, the Board adopted its reasoning in CNR and found that the failure or refusal to amend an order to remove named parties is not an “exercise of power” and is, therefore, not an appealable decision under section 99(c) of the Act. Accordingly, both appeals were dismissed for lack of jurisdiction.