Decision Date: June 1, 2022

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – ss. 53, 64(4), 99, 101(1); Administrative Tribunals Act – s. 31(1)(a); remediation; contaminated site; Protocol 6, appealable decision; person aggrieved; jurisdiction; summary dismissal

Beacon Pacific Properties Ltd. (“Beacon”) appealed a decision issued by the Director, Environmental Management Act (the “Director”), granting a preapproval (the “Preapproval”) to apply for a certificate of compliance (“Certificate”) for part of a contaminated site (the “Site”). The Site consisted of three parcels of land. Canadian Tire Real Estate Limited (“Canadian Tire”) owned the land believed to be the source of the contamination. Two adjacent properties impacted by the contamination that migrated from Canadian Tire’s land. One was owned by Beacon, and the City of Victoria (the “City”) owned the other.

Before seeking the Preapproval, Canadian Tire made some effort to investigate and delineate contamination on Beacon’s property. Canadian Tire also supplied Beacon with information about the contamination on Canadian Tire’s and the City’s properties. Canadian Tire and Beacon signed an access and indemnity agreement (the “Agreement”), in which Canadian Tire agreed to indemnify Beacon for “… all reasonable costs and expenses …” incurred by Beacon investigating and remediating Beacon’s property. However, Beacon and Canadian Tire disagreed about how much money was reasonable to cover legal services associated with the Agreement and/or with investigating and remediating Beacon’s property. Beacon claimed that Canadian Tire had breached the Agreement. Beacon did not allow Canadian Tire to access Beacon’s property to confirm the extent of the contamination.

Canadian Tire then applied for a preapproval because it wanted to proceed with remediating the City’s property and its own property, despite the impasse with Beacon.

The Director issued the Preapproval after finding that Canadian Tire had taken steps to adequately engage with Beacon about the contamination affecting Beacon’s property. The Preapproval stated that Canadian Tire’s communications with Beacon met the requirements in Protocol 6 for a preapproval, and that Canadian Tire may apply for separate Certificates for parts of the Site after conducting remediation: first, for its property and the City’s property; and later, for Beacon’s property.

On appeal, Beacon submitted that Canadian Tire unreasonably refused to pay legitimate expenses incurred due to the contamination of Beacon’s property. Beacon argued that the Director failed to appreciate that Canadian Tire had breached the Agreement, and failed to apply the “polluter pay” principle.

As a preliminary matter, Canadian Tire applied to the Board for an order dismissing Beacon’s appeal on the basis that: (1) the Preapproval was not an appealable “decision” within the meaning of section 99 of the Environmental Management Act (the “Act”); and (2) Beacon was not a “person aggrieved” by the Preapproval within the meaning of section 100(1) of the Act.

First, the Board found that the Preapproval involved the exercise of a power, which was a “decision” under section 99(c) of the Act. In granting the Preapproval, the Director exercised his authority under section 64(4) of the Act, which states that “a director may refuse to accept anything governed by the protocol that is not in compliance with it.” Section 4 of Protocol 6 specifies the information and documents required for an application for a preapproval. Assessing whether those requirements were met required a substantive assessment of the adequacy of the information provided with the application. In the Preapproval, the Director found that Canadian Tire’s application met the information requirements in section 4 of Protocol 6, and he authorized Canadian Tire to apply for two separate Certificates. As such, the Preapproval was a substantive decision, and not merely a procedural step.

However, the Board found that Beacon failed to show that it was “aggrieved” by the Preapproval. Beacon had to provide some evidence, beyond mere assertions, to establish on a prima facie basis that the Preapproval prejudicially affected its interests. Beacon failed to do so. Regardless of the Preapproval, Canadian Tire remained responsible for delineating and remediating contamination on Beacon’s property that originated from Canadian Tire’s property. There was evidence that the contamination was stable. The prejudices that Beacon alleged were caused by delaying delineation and remediation of contamination at its property were unrelated to the Preapproval. The Preapproval did not address whether Canadian Tire had compensated Beacon for reasonable expenses associated with the contamination on Beacon’s property. Beacon could appeal any Certificate that may be issued in the future for the remediation of its property, if Beacon was “aggrieved” by that Certificate.

The Board concluded that that the appeal was not within its jurisdiction, given that Beacon, the only appellant, lacked the standing to advance the appeal. Therefore, the Board summarily dismissed the appeal.