J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., (2015) 379 B.C.A.C. 231 (CA)

• Judge: Bennett, Garson and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 20, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 379 B.C.A.C. 231 (CA);2015 BCCA 472

JI Prop. v. PPG Architectural Coatings (2015), 379 B.C.A.C. 231 (CA);

    654 W.A.C. 231

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. NO.030

J.I. Properties Inc. (respondent/plaintiff) v. PPG Architectural Coatings Canada Inc. / PPG Revetements Architecturaux Canada Inc. (formerly ICI Canada Inc.) (appellant/defendant)

(CA42195; 2015 BCCA 472)

Indexed As: J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc.

British Columbia Court of Appeal

Bennett, Garson and Harris, JJ.A.

November 20, 2015.

Summary:

At issue was whether, under the Environmental Management Act, S.B.C. 2003, c. 53 (EMA), the defendant, which had previously owned and contaminated land, but remediated it to standards accepted as satisfactory by the regulator at the time, might escape or reduce liability for the costs of remediation incurred by the plaintiff, the current owner. The remediation standards applicable to the previous owner fell below current standards, but there was no suggestion that the current owner, the plaintiff, did not know anything that was material about the contamination of the land or the remediation of it by the prior owner, the defendant, in the mid-1980s.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 1619, concluded that s. 46(1)(m) of the EMA, which in certain circumstances exempted a former owner from liability for the costs of remediation, did not apply to the defendant. Section 46(1)(m) exempted a former owner from liability for remediation costs where a former owner had a certificate of compliance, as defined by the EMA, and the current owner incurred remediation costs in changing the use of the land. The court held that a "comfort letter" to the defendant from the regulator provided before the enactment of the legislation did not qualify as a certificate of compliance and the defendant remained liable for the remediation costs. Second, there was no evidence that would support apportioning the cost of remediation between the former polluting owner (the defendant) and the current non-polluting owner (the plaintiff), which incurred remediation costs as part of a process to comply with regulatory requirements to develop the land. Third, the plaintiff's action to recover the cost of remediation was not barred by operation of the Limitation Act, R.S.B.C. 1996, c. 266. The relevant limitation period was six years and, in any event, the cause of action had not accrued until within two years of the date the action was started, if a two-year limitation period applied. The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - See paragraphs 68 to 72.

Limitation of Actions - Topic 1911

Actions - General - Cost recovery action - See paragraphs 82 to 90.

Pollution Control - Topic 4

General principles - General - Environmental legislation - Interpretation - See paragraphs 1 to 90.

Pollution Control - Topic 9317

Enforcement - General - Clean-up - Cost of - Liability for - See paragraphs 1 to 81.

Cases Noticed:

Workshop Holdings Ltd. v. CAE Machinery Ltd. (2003), 177 B.C.A.C. 70; 291 W.A.C. 70; 2003 BCCA 56, refd to. [para. 29].

No. 158 Seabright Holdings Ltd. et al. v. Imperial Oil Ltd. et al. (2003), 177 B.C.A.C. 98; 291 W.A.C. 98; 2003 BCCA 57, refd to. [para. 29].

Workshop Holdings Ltd. v. CAE Machinery Ltd. et al., [2005] B.C.T.C. 631; 2005 BCSC 631, refd to. [para. 30].

Dhillon v. Pannu et al. (2008), 263 B.C.A.C. 142; 443 W.A.C. 142; 2008 BCCA 514, leave to appeal denied (2009), 398 N.R. 385 (S.C.C.), refd to. [para. 68].

Cardwell v. Perthen (2007), 243 B.C.A.C. 135; 401 W.A.C. 135; 2007 BCCA 313, refd to. [para. 79].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 87].

First National Properties Ltd. v. Northland Road Services Ltd. et al., [2008] B.C.T.C. Uned. B90; 2008 BCSC 569, refd to. [para. 87].

Statutes Noticed:

Contaminated Sites Regulation, B.C. Reg. 375/96, sect. 35 [para. 40].

Environmental Management Act, S.B.C. 2003, c. 53, sect. 46(1)(m) [para. 37]; sect. 47(9) [para. 39]; sect. 53(3)(a) [para. 48].

Counsel:

S.B. Armstrong, Q.C., K.C. Bourchier, A.M. Nathanson and W.J. Shaw, for the appellant;

D.R. Bennett, Q.C., and J.K. McLean, for the respondent.

This appeal was heard at Vancouver, B.C., on September 29 and 30, 2015, by Bennett, Garson and Harris, JJ.A., of the British Columbia Court of Appeal. Harris, J.A., delivered the following decision for the court on November 20, 2015.