Decision Date: August 7, 2013

Panel: Alan Andison

Keywords: application for adjournment; remediation plan; contaminated site

Domtar Inc. (“Domtar”) requested that the Board grant an adjournment of part of its appeal in relation to a remediation order issued in 2010, in which Domtar and Seaspan ULC (“Seaspan”) were both named as responsible persons. Domtar and Seaspan filed separate appeals of the remediation order. They also appealed some subsequent decisions that the Director made regarding the contaminated site. In total, five appeals related to the contaminated site were scheduled to be heard together.

Approximately two months before the joint appeal hearing was scheduled to commence, Domtar requested that the Board adjourn its appeal of the remediation order. Specifically, Domtar advised that it and Seaspan had agreed to jointly proceed to implement a remediation plan for the contaminated site. Domtar requested that its appeal of the remediation order be adjourned indefinitely, rather than withdrawn, so that its appeal could be heard at a later time, if necessary.

The Director, Seaspan, and the Vancouver Fraser Port Authority opposed Domtar’s application. Fibreco Export Inc. and 602534 BC Ltd. opposed the application to the extent that it pertained to the financial security requirements in the remediation order. The Attorney General of BC took no position on the application.

Subsequently, Domtar withdrew its application to the extent that it pertained to Domtar’s appeal of the financial security requirements in the remediation order. As a result, Domtar’s adjournment application was then restricted to the issue of whether Domtar should have been named in the remediation order.

The Board found that the issue of who should have been named in the remediation order was raised in both Seaspan’s and Domtar’s appeals. Thus, their appeals overlapped in that regard, and Seaspan would be making submissions on that issue at the joint appeal hearing even if Domtar’s application for an adjournment of its appeal was granted. The Board also found that granting the adjournment would result in severing a key aspect of Domtar’s appeal of the remediation order; i.e., the issue of whether Domtar should be named in the remediation order, and this could affect not only Seaspan’s interests, but also the Board’s ability to reach a final decision on the merits of the remediation order. Further, the Board found that granting the adjournment may result in the duplication of arguments and evidence, if that aspect of Domtar’s appeal was heard at a later date.

Accordingly, Domtar’s application to adjourn part of its appeal of the remediation order was denied.