Decision Date: June 11, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 46(1)(d), 48(4), 93(11); Administrative Tribunals Act – s. 34(3)(b); application for document disclosure; remediation plan; contaminated site; possession; control; relevance

Seaspan ULC (“Seaspan”) and Domtar Inc. (“Domtar”) filed separate applications requesting the production of documents from one another, in relation to their appeals of a remediation order. Specifically, Seaspan requested that the Board order Domtar to produce certain categories of documents, and Domtar requested that the Board order Seaspan to produce certain classes of documents. Both Seaspan and Domtar claimed that the other party had possession or control of the documents, and that the documents were relevant to their respective appeals. They sought disclosure of the documents before the hearing of their appeals.

The appeals relate to a contaminated site located in North Vancouver, adjacent to Burrard Inlet. Domtar previously owned part of the contaminated site. Between 1923 and 1965, Domtar (and its corporate predecessors) operated a wood preserving facility on part of the site. Since 1965, Seaspan (and its corporate predecessor) has owned part of the site. Seaspan leases other parts of the site from the Vancouver Fraser Port Authority. Seaspan operates a shipyard on part of the site.

In 1995, Seaspan notified the Ministry of Environment (the “Ministry”) that contamination was found at the site. The contamination consists of creosote, creosote-derived substances, metal, and organometal substances, resulting from Domtar’s historical wood-preserving activities and Seaspan’s shipyard activities. The contamination is found in the soil, groundwater, and sediments at the site.

In 1997, Seaspan informed the Ministry that it would work with Domtar to address the contamination. Since that time, the site was the subject of various investigations and reports, but Seaspan and Domtar have been unable to agree on a remediation plan.

In April 2010, the Ministry’s Director, Environmental Management Act, issued a remediation order that named Domtar and Seaspan as persons responsible for remediating the contamination at the site. The order requires Domtar and Seaspan to finalize a site remediation plan for the Director’s review, implement a site remediation plan subject to any conditions imposed by the Director, and remediate the site to certain standards.

Domtar and Seaspan filed separate appeals of the remediation order. Domtar appealed on the basis that only Seaspan should have been named on the order. Seaspan appealed on the basis that it should not have been named as a responsible person with respect to some or all of the contaminated site, and that it did not contaminate some or all of the site.

Domtar and Seaspan also appealed some subsequent decisions that the Director made regarding the contaminated site. However, the parties’ document disclosure applications related to the appeals of the remediation order only.

Domtar applied to the Board for an order compelling Seaspan to produce seven classes of documents. Domtar submitted that the requested documents were relevant to its argument that only Seaspan should be named in the order, and to the issue of whether Seaspan exercised due diligence with respect to the contamination, which is consideration under section 48(4)(b)(ii) of the Environmental Management Act.

Seaspan applied to the Board for an order compelling Domtar to produce seven categories of documents. Seaspan submitted that the requested documents were relevant to question of whether Domtar is properly named on the order, and whether Domtar rather than Seaspan should be responsible for remediating some or all of the site.

First, the Board determined the test for ordering the production of documents. Section 34(3)(b) of the Administrative Tribunals Act provides the Board with the discretion to order a person to produce a document or thing “in the person’s possession or control” that is “admissible and relevant” to an issue in an appeal. The Board found that parties need access to relevant documents before a hearing begins, so that they can properly prepare, and effectively argue, their respective cases. Therefore, in the context of pre-hearing disclosure, “relevant” means documents which, it is reasonable to suppose, may be relevant to proving or responding to an issue in the appeal. With regard to “possession or control”, the Board found that evidence of whether a person has possession or control of the document(s) sought will be evaluated in terms of reliability and weight before deciding whether an order for production will be made.

Next, the Board determined the issues that were raised by the appeals, based on the grounds for appeal and the remedies sought in each party’s Notice of Appeal. The Board also considered the issues that each party would have to address in defence or response to the other party’s appeal. The Board found that Domtar’s appeal raised issues with respect to some aspects of section 48 of the Environmental Management Act, but not with respect to section 48(4)(b). Specifically, Domtar’s Notice of Appeal did not rely on or raise Seaspan’s contribution to the contamination, Seaspan’s prior knowledge of the contamination, or Seaspan’s due diligence, to make Domtar’s case that only Seaspan should be named in the order. With respect Seaspan’s appeal, the Board found that Seaspan’s grounds for appeal relied on the “innocent purchaser” exemption in section 46(1)(d) of the Environmental Management Act.

Finally, the Board determined whether to order Domtar to produce the documents that were requested by Seaspan, and vice versa. In both cases, the Board found that it should order the disclosure of some, but not all, of the requested documents, as some were irrelevant to the issues raised by the appeals. In addition, although Domtar asserted that it no longer had possession or control of some of the documents requested by Seaspan, the Board found that Domtar’s affidavit evidence was so vague regarding the search it had conducted that the Board could not determine whether Domtar had performed an adequate search for the documents. The Board ordered, therefore, that Domtar should perform a further search for, and disclose, those documents that the Board had found to be relevant. In the event that those documents were not in Domtar’s possession or control, the Board ordered Domtar to provide a summary of its efforts to locate the subject documents.

Accordingly, both of the applications were granted, in part.