GreenIsle Environmental Inc. v. New Brunswick (Minister of the Environment and Local Govern­ment), 2007 NBCA 9

• Judge: Turnbull, Deschênes and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 08, 2007
• Jurisdiction: New Brunswick
• Citations: 2007 NBCA 9;(2007), 311 N.B.R.(2d) 161 (CA)

GreenIsle Env. Inc. v. N.B. (2007), 311 N.B.R.(2d) 161 (CA);

    311 R.N.-B.(2e) 161; 803 A.P.R. 161

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.B.R.(2d) TBEd. FE.010

GreenIsle Environmental Inc. (applicant/appellant) v. Her Majesty The Queen in Right of the Province of New Brunswick, as represented by the Minister of the Environment and Local Government (respondent/respondent)

(69/06/CA; 2007 NBCA 9)

Indexed As: GreenIsle Environmental Inc. v. New Brunswick (Minister of the Environment and Local Govern­ment)

New Brunswick Court of Appeal

Turnbull, Deschênes and Robertson, JJ.A.

February 8, 2007.

Summary:

Under the Beverage Containers Act and its Regulations, New Brunswick purchasers paid a 10 cent deposit on beverage containers and received five cents per can upon redemption. The Regulations precluded the payment of refunds for containers on which no deposit was paid in N.B. Prince Edward Island had no similar deposit and refund system in place for beverage cans. GreenIsle collected beverage cans in P.E.I. at the curbside and transported them to N.B., where they were redeemed for five cents a can. The Minister forced redemption centres to refuse to accept the beverage cans from GreenIsle, because it could not be ensured that the cans were containers on which a deposit had been paid in N.B. Also, the Minister determined that the cans were "waste" under the Clean En­vironment Act, and GreenIsle could not transport them to N.B. without complying with the Environmental Impact Assessment Regulation. GreenIsle sought declaratory relief challenging the Minister's decisions.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment re­ported (2006), 306 N.B.R.(2d) 90; 793 A.P.R. 90, dismissed the application where the Minister's decisions were not patently unreasonable. Neither decision was arbitrary or made in bad faith. GreenIsle appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 3308

Judicial review - General - Bars - Col­lateral attack - [See Pollution Control - Topic 8083 ].

Pollution Control - Topic 8083

Land - Waste disposal - Authorizations - Waste or waste disposal defined - Under the Beverage Containers Act and its Regu­lations, New Brunswick purchasers paid a 10 cent deposit on beverage cans and received five cents per can upon redemp­tion - The Regulations precluded refunds for cans on which no deposit was paid in N.B. - Prince Edward Island had no de­posit and refund system - GreenIsle col­lected cans in P.E.I. and shipped them to N.B. for refunds - The Minister's policy directive forced redemption centres to refuse to accept the P.E.I. cans from GreenIsle, because it could not be ensured that a deposit had been paid in N.B. - The Minister determined that the cans were "waste" under the Clean Environment Act, and that GreenIsle could not ship them to N.B. without complying with the Environ­mental Impact Assessment Regulation - GreenIsle sought declaratory relief chal­lenging the Minister's decisions - The trial judge dismissed the application - The New Brunswick Court of Appeal dismissed GreenIsle's appeal - First, GreenIsle's application did not constitute an impermis­sible collateral attack on the Minister's decisions, as there was no decision or order issued against GreenIsle for which judicial review could have been sought - Whether the cans were "waste" involved statutory interpretation by the Minister (question of law), for which the standard of review was correctness - The Minister's decision was correct - Even though the cans were not "useless" or "unsaleable", they still constituted "waste" - The Min­ister had legislative authority to require proof of payment of a deposit in N.B. before refunds were paid, which extended to the Minister's policy directive that presumed that no deposit had been paid in N.B. on the cans brought into N.B. from P.E.I. by GreenIsle - The policy directive did not discriminate against GreenIsle in the administrative law sense.

Trade Regulation - Topic 6130

Manufacturers - Packaging and containers - Beverage containers - Deposit refund programs - [See Pollution Control - Topic 8083 ].

Words and Phrases

Waste - The New Brunswick Court of Appeal discussed the meaning of the word "waste", as found in s. 1 of the Clean Environment Act, R.S.N.B. 1973, c. C-6 - See paragraphs 20 to 23.

Cases Noticed:

Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environ­ment and Local Government) (2004), 274 N.B.R.(2d) 340; 718 A.P.R. 340; 2004 NBCA 69, dist. [para. 1].

O'Dell v. New Brunswick (Minister of the Environment and Local Government) (2005), 286 N.B.R.(2d) 115; 748 A.P.R. 115; 2005 NBCA 58, appld. [para. 2].

Tremblay v. Canada (Procureur général), [2004] 4 F.C. 165; 327 N.R. 160; 2004 FCA 172, refd to. [para. 12].

Paszkowski v. Canada (Attorney General) et al. (2006), 287 F.T.R. 116; 2000 FC 198, refd to. [para. 12].

Wood Producers' Association of Ontario et al. v. Ontario, [2005] O.T.C. 105 (Sup. Ct.), refd to. [para. 12].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 15].

R. v. Hawkins Bros. Fisheries (2006), 308 N.B.R.(2d) 163; 797 A.P.R. 163; 2006 NBCA 114, refd to. [para. 15].

Prentice v. Royal Canadian Mounted Po­lice, [2006] 3 F.C. 135; 346 N.R. 201; 2005 FCA 395, refd to. [para. 15].

Western Stevedoring Co. et al. v. Workers' Compensation Board (B.C.), [2005] B.C.T.C. 1650; 2005 BCSC 1650, refd to. [para. 15].

Dhalla et al. v. Canada (Minister of Citi­zenship and Immigration) (2006), 286 F.T.R. 255; 2006 FC 100, refd to. [para. 15].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, dist. [para. 18].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, dist. [para. 18].

Crevier v. Quebec (Attorney General) et al., [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 19].

R. v. Jopp Ventures Corp. et al., [2001] B.C.T.C. 1051 (S.C.), refd to. [para. 23].

R. v. Valley Paper Cycle Ltd., 2005 BCPC 483, refd to. [para. 23].

Forget v. Québec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 35].

Grace v. British Columbia et al., [2000] B.C.T.C. 390; 2000 BCSC 923, refd to. [para. 35].

Counsel:

Rosemary Scott, Q.C., and Debora M. Lamont, for the appellant;

Krista L. Colford, for the respondent.

This appeal was heard on September 27, 2006, before Turnbull, Deschênes and Rob­ertson, JJ.A., of the New Brunswick Court of Appeal.

On February 8, 2007, Robertson, J.A., delivered the following judgment in both official languages for the Court of Appeal.