British Columbia’s Environmental Management Act sets out a comprehensive scheme with respect to the remediation of contaminated sites. Central to that scheme is section 47 of the Act, which permits a party who has incurred the cost of remediating a site to bring a court action to recover the costs of remediation. In a typical Environmental Management Act action, the party who has incurred the cost will seek contribution from the property’s previous owners and operators. Even though the mechanisms in the Act are designed around the principle of “polluter pays”, the provisions of the Act make it difficult for parties who have owned or operated a site to escape liability, as the burden of proof is on those parties to show that they fall within one of the Act’s limited exceptions found in section 46 of the Act. As a result, actions under the Act can often involve parties that have had no involvement with the property for decades. As a result, a frequent question asked by parties finding themselves in such a dispute is whether or not the BC Limitation Act applies, or whether there are any time limits associated with bringing such a claim.
Although the Act does apply retroactively in the sense that all previous owners and operators the property can be found liable for the cleanup, a plaintiff does not have an indefinite time in which to bring their action. In First National Properties Ltd. v. Northland Road Services Ltd., 2008 BCSC 569, the court confirmed that the BC Limitation Act does apply to remediation claims pursuant to the Environmental Management Act. In that case, the court found that the limitation clock started running once the Plaintiff was aware of the cost to remediate. In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, the court confirmed that the six year limitation pursuant to the 1996 Limitation Act was applicable.
Prior to the passage of the 2012 Limitation Act, it appeared that an amendment would be made to the Environmental Management Act to the effect that an action could be brought at any time. However, when that legislation was passed, no consequential amendments were made to the Environmental Management Act, so it remains at this time that the Limitation Act applies. Thus, a plaintiff who incurs remediation costs ought to bring their cost recovery action swiftly, as the Act’s two year limit will likely come into play. Further, it remains to be considered in a future case what effect, if any, the discoverability provisions of the new Limitation Act have in respect of a cost recovery claim.
About the Author:
W. Eric Pedersen is a lawyer practicing in the civil litigation department at Velletta & Company. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal. Find out more about Eric by clicking HERE.