Decision Date: March 6, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – s. 101(1); preliminary application; remediation order; contaminated site

Seaspan ULC (“Seaspan”) appealed a January 2013 decision issued by the Director, Environmental Management Act, Ministry of Environment, with respect to a contaminated site located in North Vancouver.

In April 2010, the Director issued a remediation order that requires Domtar Inc. (“Domtar”) and Seaspan to prepare a remediation plan, and remediate the site to certain standards. However, Seaspan and Domtar were unable to agree on a remediation plan for the site. In particular, they disagreed on the appropriate design for a barrier wall, a key component of the remediation. As a result, they submitted separate plans for the Director’s consideration.

In January 2013, the Director decided that the two remediation plans were both acceptable, and the Director left it to those two parties to decide which plan would be implemented at the contaminated site. The Director also advised that the requirement in the 2010 remediation order to implement a site remediation was in effect immediately.

Seaspan and Domtar filed separate appeals of the January 2013 decision.

The Board proposed to hear the two appeals together with two previously filed appeals by Domtar and Seaspan against the 2010 remediation order, and two additional appeals filed by Seaspan against other decisions regarding the contaminated site. A joint hearing of all appeals related to the site was scheduled for four weeks in the Fall of 2013. Previously scheduled hearings had been cancelled while the parties waited for the Director’s 2013 decision; the last cancellation was initiated by Seaspan.

In February 2013, Seaspan applied to have its appeal of the January 2013 decision heard separately from the other appeals related to the contaminated site, on an expedited basis, and by way of written submissions.

The Director, Domtar, and Fibreco Export Inc. and 602534 BC Ltd. (the “Fibreco Parties”) opposed Seaspan’s application. The Attorney General of British Columbia took no position on the application, and the Vancouver Fraser Port Authority did not respond to the application.

The Board found that Seaspan’s appeal raised an issue that went to the very jurisdiction of the Director to accept both remediation plans for implementation. Therefore, if Seaspan’s appeal is heard first and the Board finds that the Director did not have jurisdiction to accept both plans, his decision will be reversed. As a result, he will be required to reconsider the remediation plans and make a new decision. This would provide clarity and greater certainty going into a full hearing on the merits of all of the appeals.

In addition, the Board held that if Seaspan’s appeal is heard first and is dismissed, there would be one less appeal to address at the Fall hearing. In terms of the potential for increased complexity and/or delay, the issues and evidence to be presented in relation to Domtar’s appeal would not change if Seaspan’s appeal is heard first. Further, the Board held that if Seaspan’s appeal is successful and the matter is returned to the Director, any ultimate finding by the Director that Domtar’s plan is the preferred plan would obviate that need to hear many of the matters to be heard in the Fall.

Finally, the Board held that Seaspan’s appeal raised a fundamental question of the Director’s jurisdiction to make the January 2013 decision. It is a preliminary question of jurisdiction that should be decided before turning to the merits of the individual site remediation plans.

Accordingly, the Board granted Seaspan’s application to have its appeal of the January 2013 decision heard separately and on an expedited basis, in writing.