Decision Date: February 19, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – s. 53; contaminated site; remediation; certificate of compliance; consent order

Park Oakview Holdings Ltd. (the “Appellant”) appealed a Certificate of Compliance issued in May 2013, by a delegate of the Director (the “Director”), Environmental Management Act. The Certificate of Compliance provided that the Shell Canada Limited (“Shell”) had satisfactorily remediated the petroleum hydrocarbon contamination which had migrated from a Shell service station into the soil of neighbouring property owned by the Appellant. The Certificate of Compliance also imposed risk management conditions upon future use of the remediated property.

In its Notice of Appeal, the Appellant submitted that the Director had breached her duty of procedural fairness by issuing the certificate without adequately consulting the Appellant, and by failing to provide the Appellant with a draft of the Certificate of Compliance for review and comment prior to issuing the Certificate. Further, the Appellant alleged that the risk management conditions included in the Certificate of Compliance imposed an unreasonable burden on the Appellant.

As a remedy, the Appellant sought to have the Certificate of Compliance varied such that Shell would be responsible for complying with the conditions, and would indemnify the Appellant against loss, damages and costs arising from the contamination. In the alternative, the Appellant requested that the Director be ordered to consult with the Appellant about Shell’s remediation of the property and future management of the contamination that had remained on the property.

The Appellant, with the consent of all other parties, requested that the scheduled hearing date of the appeal be held in abeyance for three months in order to allow the parties to discuss a resolution to the issues in the appeal. The Board granted this request.

Through these discussions, the parties negotiated an agreement with respect to the appealed orders. With the parties’ consent, the Board rescinded the Certificate of Compliance, ordered the Director to re-consider Shell’s application for a Certificate of Compliance, and dismissed the other forms of relief sought by the Appellant without costs awarded to any party. Further, the Board ordered that the consent order did not preclude a future appeal on the same or similar grounds of appeal.