Decision Date: September 25, 2019

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – ss. 91.4, 99; Administrative Tribunals Act – s. 31(1)(a); preliminary decision; jurisdiction; spill cost recovery; appealable “decision”; summary dismissal; Unifor Local 2301 v. Rio Tinto Alcan Inc., 2017 BCCA 300

On December 30, 2018, a truck overturned in a river near Clearwater BC. According to a report from the Environmental Emergency Program, Ministry of Environmental and Climate Change Strategy (the “Ministry”), the truck’s trailer had ripped open, some frozen meat spilled into the river, and vehicle fluids and diesel may have spilled into the river. In Division 2.1 of the Environmental Management Act (the “Act”), section 91.4(2) provides a director with the discretion to respond to a spill and manage the spill. Ministry staff responded to the spill.

Sections 91.4(3) to (7) of the Act address liability for, and recovery of, the government’s costs of responding to a spill. The Ministry considered MSP to be a “responsible person” who had “possession, charge or control of” the substances that spilled, for the purposes of section 91.4 of the Act.

In March 2019, the Ministry sent an “Intent Letter” to MSP, stating that the Ministry intended to recover the government’s cost incurred for responding to the December 30, 2018 spill, pursuant to section 91.4(3) of the Act. The Intent Letter also stated that the Ministry intended to issue a Letter of Demand for Cost Recovery, and the amount specified in that letter would be a debt due to the government.

In May 2019, the Director signed a “Demand Letter” that was sent to MSP, stating that MSP owed the government a debt of $3,576.82 for actions undertaken to address the December 30, 2018 spill. The Demand Letter stated that payment should be made by cheque to the Minister of Finance, and interest would be charged on any amount unpaid after 30 days. In addition, the Demand Letter stated that it “…may be filed with a court that has jurisdiction for the purpose of recovering costs in accordance with section 91.4(6) of the Act.” The Demand Letter also provided MSP with 30 days to contest the letter by contacting the Environmental Emergency Program’s Cost Recovery Clerk.

MSP appealed the Demand Letter to the Board.

The Director raised a preliminary objection to the appeal. The Director submitted that the Demand Letter did not contain an appealable “decision” as defined in section 99 of the Act. The Director requested that the appeal be summarily dismissed for lack of jurisdiction.

The Board held that it must take a liberal approach to interpreting section 99 of the Act, as directed by the BC Court of Appeal in Unifor Local 2301 v. British Columbia (Environmental Appeal Board), 2017 BCCA 300 [Unifor]. Unifor also requires that in order for there to be an appealable “decision”, there must be some exercise of authority under, or derived from, the Act that falls within the types of “decisions” defined in section 99 of the Act.

The Board reviewed the provisions in Division 2.1 of the Act. The Board found that the quantum and liability for the government’s spill response costs appeared to be created by operation of sections 91.4(3) to (5), without any “decision” by a director. However, section 91.4(6) states that a director “may” file a certificate in court to recover the debt. It does not say that a director “must” do so. The Board held that, when deciding to exercise the discretion provided under section 91.4(6), a director would have to decide to sign and issue a certificate that contains the specific information required under subsection (7).

Turning to the Demand Letter, the Board found that unlike the Intent Letter, the Demand Letter was not simply informative in nature. In the Demand Letter, the Director imposed requirements to pay a specific amount within a specific timeframe, using a specific method of payment. MSP had no way of knowing the amount of the debt, when it was due, or how to make payment until it received the Demand Letter. The Demand Letter also stated that failure to comply with those requirements would trigger the calculation of interest, and the Demand Letter “may be filed with a court … for the purpose of recovering costs in accordance with section 91.4(6)”. By communicating the amount owed by MSP and the repercussions under section 91.4(6) for not voluntarily paying within a specific timeframe, the Director imposed a requirement to pay the debt. The Director also made a decision on how to attempt to collect that debt. As such, the Demand Letter contained a substantive decision that was made under, or derived from, sections 91.4(6) and (7) of the Act.

The Board also noted that section 88 of the Act provides the BC Supreme Court with the power to review the amount claimed by the government in a cost recovery certificate issued by a minister, but no such power is provided to a court under section 91.4 of the Act. Although the Demand Letter stated that it may be contested by contacting the Environmental Emergency Program’s Cost Recovery Clerk, the Demand Letter and the legislation were silent about what remedies the clerk could provide, and it seemed unlikely that a clerk could rescind or vary a letter signed by a director. Thus, if the Board interpreted section 91.4 to mean that the Demand Letter could not be appealed to the Board, MSP would have no clear way to challenge whether the costs in the Demand Letter were a reasonable, necessary, or appropriate response to the spill.

In summary, the Board concluded that the contents of the Demand Letter constituted “imposing a requirement” and/or “exercising a power” as defined in sections 99(b) and (c) of the Act, respectively, and was an appealable “decision” within the meaning of section 99.

Accordingly, the application to dismiss the appeal was denied.