Decision Date: September 24, 2019

Panel: Darrell Le Houillier

Keywords: Administrative Tribunals Act – ss. 14(c), 47.1; contaminated site; remediation plan; independent remediation; summary dismissal; mootness; security for costs

In 2017, the Gibsons Alliance of Business and Community Society and Marcia Timbres (the “Appellants”) appealed a letter (the “2017 Letter”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy, to The George Gibsons Development Ltd. (the “Developer”). The 2017 Letter pertained to the Developer’s proposed plan and schedule for remediating a contaminated site located on the waterfront in Gibsons, BC. The Developer owns part of the site and wants to develop it.

The Appellants appealed the Director’s statement in the 2017 Letter that the Ministry was “supportive of the [Developer’s proposed] plan and schedule for the investigation and remediation”, and that the proposed plan and schedule was the “accepted remedial plan and schedule”. Among other things, the Appellants were concerned that the 2017 Letter failed to address the presence of tributyltin (“TBT”) in foreshore sediments and the suspected presence of TBT in soil at the site, and that the Director purported to approve a remedial plan that failed to adequately protect the environment, including the Gibsons aquifer.

The appeal hearing that was originally scheduled in 2018 was postponed by consent of the parties, after amendments were made to the Contaminated Sites Regulation. The amendments included establishing numerical standards for TBT in soil. In light of these changes, the Developer’s environmental consultant recommended additional site investigations for the presence of TBT and other metals in order to fully delineate the contaminants. New hearing dates were scheduled in Fall 2019 to allow the additional site investigations.

In July 2019, the Developer’s environmental consultant completed a new detailed site investigation report (the “2019 DSI”), containing updated information about the contamination at the site. The 2019 DSI also contained a new recommended remedial plan (the “2019 Remedial Plan”). According to the Developer, the 2019 Remedial Plan was materially different from the 2017 remedial plan, because it did not call for off-site disposal of contaminated soil and sediment.

In August 2019, the Developer requested that the Board summarily dismiss the appeal of the 2017 Letter on the basis that it was moot. The Developer submitted that the 2017 remedial plan, which was the subject of the appeal, was not being implemented. Instead, the Developer would be implementing the 2019 Remedial Plan, and unlike the situation in 2017, the Developer would not be asking the Director to review the 2019 Remedial Plan. Alternatively, if the appeal proceeded to a hearing, the Developer requested an order of security for costs, requiring the Appellants to deposit money sufficient to cover the Developer’s anticipated appeal costs, pursuant to section 47.1 of the ATA. The Developer also requested an opportunity to apply for costs.

To determine whether the appeal was moot, the Board applied the two-step test endorsed by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski]. First, the Board considered whether there was still a “live controversy” between the parties regarding the appeal, and concluded that there was not. The Board found that the subject matter of the appeal was the Director’s review and approval of the 2017 remedial plan, but it was not being implemented. Also, if the appeal was heard, any remedy granted by the Board would be theoretical or academic.

Next, the Board considered whether to exercise its discretion to hear the appeal even if it was moot. The Board found that nothing would be gained by hearing the appeal. There was no compelling reason to consider the merits of the 2017 remedial plan, which was now obsolete. In addition, the 2019 Remedial Plan was a new plan and was not the subject of a decision by the Director. Therefore, the Board had no jurisdiction to consider the merits of the 2019 Remedial Plan.

For those reasons, the Board concluded that the appeal should be dismissed. Since the appeal hearing was cancelled, there was no need to consider the application for security for costs. The Developer was at liberty to file an application for costs.