North Fraser Harbour Commission, et al. v. Attorney General of British Columbia, et al.

(British Columbia) (Civil) (By Leave)




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The Appellant, North Fraser Harbour Commission ("NFHC") is the owner of property contaminated with highly toxic coal tar. The Appellant, General Chemical Canada Ltd. is the successor to the Barrett Company which owned and operated a roofing plant on the property between 1923 and 1966. Pursuant to a "Ruling Regarding Responsible Persons" and a remediation order made by the Deputy Director of Waste Management pursuant to the Waste Management Act, R.S.B.C. 1996, c. 482 (the "WMA") the Appellants, along with several other parties were named as "responsible persons" in connection with the contamination of the property. As responsible persons, they were liable for the costs for the clean up of the site. The Appellants applied before the Deputy Director for an order that BC Hydro also be found a responsible person.

The Respondent, BC Hydro, was formed by the 1965 amalgamation of BC Electric Company Limited ("BC Electric"), BC Power Commission ("BC Power") and BC Hydro and Power Authority. A predecessor of BC Electric produced, sold and transported the coal tar to the property that was alleged to have caused the contamination. The amalgamation was effected by way of an agreement between the parties and authorized pursuant to the British Columbia Hydro and Power Authority Act, 1964, S.B.C. 1964, c.7. The amalgamation agreement was attached as an appendix to and ratified by s. 3 of the Power Measures Act, 1966, S.B.C. 1966, c. 38.

The Deputy Director concluded that the final words in clause 1(c) of the agreement, "immediately before the amalgamation", created a legislative gap so that BC Hydro could not be named a responsible person for the contaminating activities of BC Electric, as the amalgamation agreement limited the obligations of the amalgamated entity to those that existed at August 20, 1965, when the agreement took effect. The Environmental Appeal Board overturned this decision, finding that the amalgamated BC Hydro could not avoid liability absent clear legislative language to that effect. This ruling was upheld on judicial review. The majority of the Court of Appeal overturned the lower court order, reinstating the decision of the Deputy Director.

Lower Court Rulings

April 6, 2000
Supreme Court of British Columbia

Respondent BC Hydro's application for judicial review to quash Board's decision dismissed
July 29, 2003
Court of Appeal for British Columbia (Vancouver)

Appeal allowed: BC Hydro not a "responsible person"