Decision Date: March 18, 2010

Panel: Robert Wickett

Keywords:  Recycling Regulation – ss. 4, 5(1), 5(3), 7; electronics product recycling; stewardship plan; approval

The Western Canada Computer Industry Association (the “Association”) appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment, to rescind the Association’s stewardship plan approval.  The approval was granted on October 10, 2007, and authorized the Association to undertake electronics product recycling on behalf of the Association’s members, which include computer wholesalers and retailers.

When the approval was issued, the Association intended to undertake recycling in competition with the Electronics Stewardship Association of BC (the “ESABC”), which had received a stewardship plan approval from the Director in 2006.  However, the Association faced an immediate obstacle to soliciting members to use its services.  As the ESABC had received its approval many months before the Association, and as the ESABC was the only electronics recycler at that time, it has signed up virtually all of the electronics manufacturers who sell or distribute their product in British Columbia under the manufacturer’s own brand.  Under the Recycling Regulation (the “Regulation”), all “producers” are required to have recycling plans in place, and definition of “producers” included manufacturers, wholesalers and retailers.  Manufacturers who became members of the ESABC signed an agreement with ESABC which required them to pay a recycling fee, which they would charge to non-members upon the purchase of an electronic product from them, and then they would remit the fee to the ESABC.  The object was to ensure that retail purchasers only paid one recycling fee.  However, non-members of the ESABC who were “producers”, which included electronics wholesalers and retailers, remained liable under the Regulation to perform their own recycling duties, and this was at the heart of the appeal.

The Director had recognized the obstacle faced by the Association, and he had initiated a series of discussions and negotiations with the Association and the ESABC, but nothing was resolved.  In March 2009, the Director sent an advisory notice to the Association alleging various issues of non-compliance with the Association’s stewardship plan.  In June 2009, the Director issued a warning notice to the Association, indicating that the Association’s stewardship plan may be rescinded.

On July 31, 2009, the Director rescinded the Association’s approval on the basis that audits of the Association’s recycling facilities showed a failure to comply with the approval’s conditions, and a substantial failure to ensure a functional return-collection system for electronics products.

The Association appealed the Director’s decision on numerous grounds, including that the Director’s findings of non-compliance were incorrect, and that the Ministry of Environment had not provided a “level playing field” and had not acted impartially.  The Association requested that the Board reverse the Director’s decision and make certain orders to “level the playing field” with the ESABC.

The Board found that the Association admitted that it had not complied with several conditions of its approval, and the evidence clearly established that the Association was unable and unwilling to comply with various aspects of its stewardship plan.  The Board concluded that the Association’s non-compliance with its approval and the Regulation provided sufficient grounds to rescind the approval.

The Board next considered whether the orders requested by the Association should be granted on the basis that the Director essentially acted in bad faith by promulgating an “uneven playing field” such that it was impossible for the Association to comply with its stewardship plan.  The Board considered its powers on appeal, as set out in section 103 of the Environmental Management Act, and found that the Board has no jurisdiction to grant the relief sought by the Association.  The Board’s powers would be limited to reversing the Director’s decision to rescind the approval, and referring the matter back to the Director with directions to amend the conditions in the approval, but the Board found that these remedies would be of no assistance to the Association.  The Board also noted that the Association’s complaint goes to issues of policy and legislative intent, which are matters for the Legislature and the Director, but not the Board.

Accordingly, the appeal was dismissed.