Country
Canada
Sources
InforMEA
Tagging
Liability, Contract, Property, Taxation, Torts, Criminal, Permits, Cooperation, Jurisdiction, Standing
Abstract
A roofing products manufacturing plant operated at the foot of Oak Street in Vancouver, adjacent to the Fraser River, from about 1920 to the 1980s. The primary feedstock for the roofing products was coal tar until about 1957.BC Electric operated a gas plant in downtown Vancouver during this period and shipped its waste coal tar from the gas plant to the roofing plant. The Oak Street site, and the adjacent Fraser River sediments, were severely contaminated by coal tar from the plant. The current owner of the site, the North Fraser Harbour Commission ("NFHC"), and some of the previous site owners, have incurred millions of dollars to remediate the site. In 1965 an amalgamation of British Columbia Electric Company Limited ("BC Electric") and two other parties, was made to create the British Columbia Hydro and Power Authority ("BC Hydro"), the primary generator of electricity in the province. The Amalgamation Agreement provided that BC Hydro would acquire all of the assets, and be liable for all of the liabilities, of the three amalgamating entities, "immediately before the amalgamation". Under the Waste Management Act (British Columbia) (now the Environmental Management Act), a "responsible person" is jointly and severally liable for the costs of remediating a contaminated site. "Responsible person" is broadly defined to include each current and previous owner and operator of a contaminated site and certain producers and transporters of the contaminating substance. The issue was whether BC Hydro was a responsible person under the Waste Management Act as a result of the actions of BC Electric prior to the 1965 amalgamation. BC Hydro conceded that, if BC Electric were in existence today, it would be a "responsible person" as a result of its involvement with the Oak Street site. A remediation order was issued under the Waste Management Act against NFHC and other past owners and operators of the Oak Street site, but not BC Hydro. On appeal, the Environmental Appeal Board held that BC Hydro was a "responsible person" as it was determined not to be a "responsible person". BC Hydro’s judicial review application to the British Columbia Supreme Court was unsuccessful but BC Hydro was subsequently successful at the B.C. Court of Appeal. The majority in the B.C. Court of Appeal, while accepting the general law regarding amalgamations as set out in R v. Black & Decker, distinguished that case on the basis of the provision in the Amalgamation Agreement that BC Hydro assumed liability for obligations of BC Electric existing "immediately before the amalgamation". The Court held that this phrase was intended to limit the liabilities that BC Hydro assumed to liabilities that existed at that time. Since the Waste Management Act did not come into effect until 1997, BC Electric could not have had liabilities under that Act immediately prior to the 1965 amalgamation. Therefore, there were no such liabilities for BC Hydro to assume at that time.