B.C. Supreme Court Issues Major Award For Remediation Of Contaminated Site

The B.C. Supreme Court issued a key decision in the area of contaminated sites in August, awarding $4.75 million in "reasonably incurred" remediation costs to the plaintiff, JI Properties, Inc. The award compensated JI Properties for money it spent remediating contamination on James Island, B.C. This award is the largest of its kind to date. The decision is potentially precedent-setting, contributing to the development of B.C.'s contaminated sites law in a number of areas. The decision:

reiterates that "polluter pays" underpins the entire Environmental Management Act contaminated sites regime, by finding the defendant polluter responsible for paying all of the plaintiff's reasonably incurred remediation costs; found the limitation period for cost recovery actions under the 1996 Limitation Act is six years and does not begin until all of the costs of remediation are incurred; held that comfort letters issued to landowners by the Ministry of Environment prior to the introduction of the EMA are not the same as Certificates of Compliance under the EMA and do not protect a responsible person from liability for remediation costs; and applied a broad, purposive approach to evaluating the reasonableness of remediation costs, and accepts that reliance on expert consultants is a strong indicia of reasonableness. In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, JI Properties brought a cost recovery action to recover $5.25 million it incurred remediating contamination on James Island. JI Properties was the island's current owner, which discovered and remediated contamination on the island in 2004-2006.

The defendant was the island's historic polluter, having owned and/or operated explosives manufacturing and storage operations on James Island for at least 30 years.

After a five-week trial, the court awarded JI Properties $4.75 million for its reasonably incurred remediation costs. Key aspects of this decision are as follows:

Polluter pays underpins regime

The court's decision is another in a series of cases in which the courts note that the "whole purpose of the EMA regime is to ensure that the person who pollutes the land pays for the cost of its restoration." In that regard, the court also held that the subsequent land-owners' motives for remediating the land are "largely irrelevant. So long as the remediation methodology and the associated costs are reasonable, the polluter can [be] held liable for those costs." In...