Decision Date: May 2, 2016

Panel: Alan Andison

Keywords: Recycling Regulation – ss. 2, 4, 5, Schedule 5; preliminary decision; product stewardship plan; agency; jurisdiction; statutory interpretation

Multi-Material British Columbia (“MMBC”) challenged the Board’s jurisdiction over an appeal filed by StewardChoice Enterprises Inc. (“StewardChoice”) against a decision of the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”). The Director had refused to approve a product stewardship plan submitted by StewardChoice in relation to packaging and printed products under the Recycling Regulation (the “Regulation”).

Section 2(1)(a) of the Regulation requires producers of certain types of products to have, or comply with, an approved product stewardship plan. Sections 2(1.1) through (5) of the Regulation contemplate that producers may appoint an “agency” to carry out their duties in relation to product stewardship plans. Section 1 of the Regulation defines “agency” to mean “a corporation appointed by a producer to act an as agent on behalf of the producer”.

Section 4 of the Regulation requires a producer to submit a product stewardship plan “at the time specified in the applicable Schedule, if any….” In May 19, 2011, Schedule 5 was added to the Regulation. As a result, producers of packaging and printed paper products became subject to the Regulation, including the requirement to have an approved product stewardship plan. Section 3 of Schedule 5 specified two timelines for completing certain requirements: 18 months after May 19, 2011 to submit a product stewardship plan for approval; and, 36 months after May 19, 2011 for compliance with an approved plan. Section 3 of Schedule 5 imposed those requirements on “A person who, on the date that this section comes into force, is a producer of a product within the packaging and printed paper product category”.

MMBC has been appointed by many producers of packaging and printed paper products to carry out their responsibilities under the Regulation. On November 19, 2012 (i.e., 18 months after May 19, 2011), MMBC submitted a stewardship plan for packaging and printed paper products to the Director. On April 15, 2013 (i.e., less than 36 months after May 19, 2011), MMBC’s stewardship plan was approved.

In late 2013, StewardChoice began discussions with the Ministry about submitting a stewardship plan for packaging and printed paper products. In June 2014, it submitted an initial plan, which was subsequently revised. The final plan was submitted to the Director for approval in December 2015.

In January 2015, the Director issued his decision refusing to approve StewardChoice’s stewardship plan. The Director found that the plan did not meet certain requirements in section 5 of the Recycling Regulation. As a result, MMBC’s stewardship plan was the only approved plan for packaging and printed paper products in BC.

In February 2016, StewardChoice appealed the Director’s decision. StewardChoice submitted that the Director made various errors in refusing to approve its stewardship plan, and it requested that the Board approve its plan or remit the matter back to the Director for reconsideration.

Before the appeal was heard, MMBC applied to the Board to have StewardChoice’s appeal dismissed on the grounds that the Board had no jurisdiction over the appeal of the Director’s decision. Specifically, MMBC submitted that the Director had no authority to consider StewardChoice’s plan for approval, because the plan was submitted long after the deadlines specified in section 3 of Schedule 5 of the had expired, and because StewardChoice was not an “agency” within the meaning of the Regulation.

First, the Board considered whether it was without jurisdiction on the basis that either StewardChoice’s plan was submitted after the deadlines specified in section 3 of Schedule 5. The Board applied the approach to statutory interpretation that has been adopted by the Supreme Court of Canada; namely, that the words in a statute are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the statute and the intention of the Legislature.

The Board found that although it is mandatory for a producer to have an approved stewardship plan, the timelines specified in section 3 of Schedule 5 are intended to be transitional and to have limited application. Specifically, the timelines were intended to apply to a person who was a producer as of May 19, 2011 and who remained a producer at the end of the timelines. This allowed a period of transition for producers who were operating when Schedule 5 came into force on May 19, 2011, so that they were not immediately in contravention of the Regulation when Schedule 5 came into force. The Board also found nothing in the Regulation expressly prevents a person who does not fit within that specific category from submitting a stewardship plan after the timelines had expired.

Moreover, the Board held that it would be contrary to the purposes of the legislation to interpret section 3 of Schedule 5 to mean that no new stewardship plans could be submitted for approval after those timelines expired. For example, such an interpretation would prevent the Director from considering a new product stewardship plan in the event that MMBC’s approved plan was rescinded by the Director under section 6.1 of the Regulation, which he may do “at any time”. If that occurred, this interpretation would mean that there would be no approved plan for producers of packaging and printed paper products in BC, and all such producers would be in contravention of section 2(1) of the Regulation.

Applying this interpretation to StewardChoice, the Board found that it is not a producer captured by section 3 of Schedule 5, and it had not been appointed as an agency on behalf of a producer at any time within the transitional period. Consequently, section 3 of Schedule 5 did not apply to StewardChoice.

Next, the Board considered whether StewardChoice had submitted its stewardship plan as an “agency” within the meaning of the Regulation. Based on the language in section 2 of the Regulation, together with the definition of “agency” in the Regulation, the Board found that, if a producer appoints an agency to submit a stewardship plan on its behalf, the appointment will occur before the plan is submitted for approval. However, the Regulation is silent on how a producer may go about appointing an agency. After considering the common law principles on how an agency relationship may be created between a principal (in this case, the producer) and an agent, the Board concluded that an agency relationship may be implied by the parties’ actions, and may be constituted retrospectively by the principal’s subsequent ratification of acts done on its behalf by the agency.

Turning to the facts, the Board found that StewardChoice had provided a letter dated August 15, 2014, in which a producer stated its intention to appoint StewardChoice to act as its agency for the purposes of the Regulation as soon as StewardChoice’s plan was approved. In the letter, the producer also requested that StewardChoice notify the Director of its interest in exploring the option of appointing StewardChoice to carry out its obligations under the Regulation. The Board found that this indicated a course of action by the producer and StewardChoice whereby an agency relationship would form retrospectively, upon approval of StewardChoice’s plan. To the extent that StewardChoice had submitted a plan that would be adopted by at least one producer upon approval, StewardChoice had been appointed to act as an agent for the producer under the Regulation.

Consequently, the Board concluded that neither of MMBC’s arguments provided a basis for concluding that the Board was without jurisdiction over the appeal. The Board denied MMBC’s application to dismiss the appeal.