Decision Date: August 23, 1999

Panel: Toby Vigod, Don Cummings, Judith Lee

Keywords: Waste Management Act – s. 26.5, 27, 27.1, 54; Power Measures Act – BC Hydro Amalgamation Agreement; remediation order; contaminated site; applications on preliminary issues; “responsible person”; liability; retrospective application; retroactive application; residency; extraterritorial jurisdiction

The Board heard two applications in regard to preliminary issues of law and jurisdiction relating to a Remediation Order issued by the Deputy Director of Waste Management on May 20, 1998. The Order was issued to address coal tar contamination at a property and in adjacent lands and waters in Vancouver.

The first application was made by the North Fraser Harbour Commission and General Chemical Canada Ltd., who submitted that the Deputy Director erred when he found that the B.C. Hydro and Power Authority could not be named as a “responsible person” to the Order as per the contaminated site provisions of the Waste Management Act. The applicants sought an order remitting the matter back to the Deputy Director for a determination whether, on the facts, this was an appropriate case in which to find that B.C. Hydro was a responsible person. The second application was made by Thomas Lawson, who sought an order setting aside the Order insofar as it named him as a responsible person. He submitted that the Deputy Director had no authority to issue a remediation order against a person not resident in British Columbia.

The Board examined the 1965 amalgamation legislation relating to BC Hydro, and found that the intention of the B.C. legislature was to combine three commercial entities (including B.C. Electric, a company which was one of the parties responsible for the contamination of the property before 1965) in such a way that the entities continued to exist as one unified entity under the name of BC Hydro. The Board also found that the amalgamated BC Hydro could not avoid liability for the past acts of a part of itself, BC Electric, unless there was a clear legislative intent to stop this liability from flowing to BC Hydro.

The Board found further that amendments to the applicable legislation since the amalgamation clearly show a legislative intention that BC Hydro may be a responsible person liable under the Waste Management Act. The Board therefore found, based on these and other considerations, that BC Hydro could be named a responsible person under part 4 of the Waste Management Act and that the Deputy Director had erred in law when he found otherwise.

With regard to the issue of whether the Deputy Director has the authority to issue a remediation order against a person not resident in British Columbia, the Board found that Mr. Lawson admitted that he and any other non-resident could be a responsible person under the Waste Management Act and can be subject to a civil action brought by any person to recover reasonable costs of remediation. The Board also found that the language of section 27(1) of the Act dealing with the civil cause of action applies to any responsible person, and that it does not restrict the definition to a resident of B.C. The Board concluded that there is no statutory or constitutional limitation to a non-resident responsible person being named in a remediation order.

The Board held that BC Hydro can be named as a responsible person under the Waste Management Act, and ordered that the matter be remitted to the Deputy Director for a determination as to whether, on the facts, this was a case in which BC Hydro should be named a responsible person to the Order and subsequent amendments. The Board also held that the Deputy Director has the authority to issue a remediation order against a person not resident in B.C., and therefore affirmed that the Deputy Director had the authority to issue a remediation order against Mr. Lawson.