Workshop Holdings Ltd. v. CAE Machinery Ltd.

The respondent, CAE, is alleged to have operated an iron and brass foundry at 1216 – 1224 East Pender Street, Vancouver, B.C. between 1924 and 1949. Subsequent owners of that property incorporated Workshop in 1997 to develop the site into commercial strata titles. Section 26.1 of the Act requires any person seeking approval for a subdivision of land that has been used for industrial or commercial activity to provide a site profile to the approving officer, and in some circumstances to the Regional Waste Manager. Workshop retained an environmental consulting firm to carry out a site investigation and prepare a site history. Copper and zinc pollution was found, likely caused by the dumping of those components of brass when the foundry was operated on the site. Faced with the need to remediate this pollution in order to develop its property, Workshop considered its options under the Act. It saw two possible avenues to remediation: the independent remediation route or the administrative route. There were conflicting decisions by the Supreme Court, particularly on the issue of whether or not the Manager had to take various administrative steps before a cost recovery action could be commenced. The Courts divided on the issue of whether or not the statutory cause of action created in s. 27 of the Waste Management Act, R.S.B.C. 1996, c. 482 (the “Act”), was integrally linked to administrative powers or whether they were distinct procedures. The Court of Appeal approved an interpretation of the Act that encouraged the administrative powers of the Ministry to compel remediation to be exercised independently of the voluntary and independent remediation procedures which could precede a cost recovery action. The Court, in effect, said that these were two different methods of obtaining the same end, namely the speedy remediation of contaminated sites. If a property owner chose to proceed with indipendent remediation and then attempt to obtain the costs of that remediation from other responsible persons, the Court said that was to be encouraged as it meshed with the aims of the Act. The amendments to the Act of May 2002 make it clear that there must be some minimal Ministry involvement before a cost recovery action may proceed. Even if the Ministry does not designate the site as contaminated, a party proceeding with remediation would be advised to use the voluntary remediation reporting requirements in the Act as s. 27(7) implies that the Ministry must be at least notified through the independent remediation process outlined in s. 28 before remediation takes place.