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29971

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

(British Columbia) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2005-03-23 Record returned to the Registrar of the Court of Appeal
2005-02-16 Appeal closed
2005-02-02 Transcript received, (31 pages)
2005-01-21 Judgment on appeal and notice of deposit of judgment sent to all parties
2005-01-20 Judgment on the appeal rendered, CJ Ma Ba Bi LeB De F Abe Cha, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA027158, 2003 BCCA 436, dated July 29, 2003, was heard this day and the following judgment was rendered:
The Chief Justice (orally) – The appeal is allowed for the reasons of Justice Rowles, dissenting in the Court of Appeal, with costs.
Allowed, with costs
2005-01-20 Supplemental document, Condensed book submitted in Court (14 copies) Attorney General of British Columbia
2005-01-20 Acknowledgement and consent for video taping of proceedings, From all parties
2005-01-20 Hearing of the appeal, 2005-01-20, CJ Ma Ba Bi LeB De F Abe Cha
Judgment rendered
2005-01-12 Notice of appearance, Nancy E. Brown and Elizabeth Rowbotham will be present at hearing. Attorney General of British Columbia
2005-01-10 Correspondence received from, J.W. Beedell re: supplemental authority Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2005-01-10 Book of authorities, (SUPPLEMENTAL), Completed on: 2005-01-10 Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2005-01-07 Notice of appearance, Robert V. Wright and Margot A. Venton will be present at hearing. Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2005-01-06 Notice of appearance, John R. Singleton and David G. Perry will be present at hearing. British Columbia Hydro and Power Authority
2005-01-05 Notice of appearance, North Fraser Harbour Commission will take 40 minutes and AG of BC (Respondent) will take 20 minutes in the splitting of time for oral arguments of the appellants. North Fraser Harbour Commission
2005-01-04 Notice of appearance, Michael P. Carroll, Q.C. and Monika B. Gehlen will be present at hearing. North Fraser Harbour Commission
2004-12-24 Correspondence received from, Mrs. Brown dated Dec. 23/04 re: she has no objection to sharing her time with the appellant Attorney General of British Columbia
2004-12-23 Correspondence received from, P. Wilson re: consent to order of appearance North Fraser Harbour Commission
2004-12-16 Correspondence received from, Mrs. Wilson re: timetable - she will respond as soon as she review the reply factum. North Fraser Harbour Commission
2004-12-14 Respondent's book of authorities, Supplemental, Completed on: 2005-01-06 British Columbia Hydro and Power Authority
2004-12-14 Reply factum on appeal, to the AGBC - see order of Dec. 3/04, Completed on: 2005-01-06 British Columbia Hydro and Power Authority
2004-12-09 Reply factum on appeal, to Friends of the Earth - see order of Sept. 9/04, Completed on: 2004-12-09 British Columbia Hydro and Power Authority
2004-12-07 Correspondence received from, David Perry re: counsel sheet speaking arrangement. cc to all parties British Columbia Hydro and Power Authority
2004-12-03 Order on motion to file a reply factum on appeal
2004-12-03 Decision on the motion to file a reply factum on appeal, of the respondent, British Columbia Hydro and Power Authority, (20 pages) on or before December 14/04, Ba
Granted
2004-12-02 Submission of motion to file a reply factum on appeal, Ba
2004-11-29 Response to motion to file a reply factum on appeal, (Letter Form), from Patricia J. Wilson dated Nov. 26/04, Completed on: 2004-11-29 North Fraser Harbour Commission
2004-11-26 Response to motion to file a reply factum on appeal, e-mail from Burke-Robertson dated Nov. 26/04, Completed on: 2004-11-26 Attorney General of British Columbia
2004-11-25 Correspondence received from, Patricia J. Wilson dated Nov. 25/04 North Fraser Harbour Commission
2004-11-25 Notice of hearing sent to parties
2004-11-25 Appeal hearing scheduled, 2005-01-20
Judgment rendered
2004-11-03 Motion to file a reply factum on appeal, (to the factum of the respondents), Completed on: 2004-11-17 British Columbia Hydro and Power Authority
2004-11-01 Order by, F, UPON APPLICATION by Friends of the Earth / Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association, for leave to intervene in the above appeal and pursuant to the order of September 3, 2004;
IT IS HEREBY FURTHER ORDERED THAT the said intervener is granted permission to present oral argument not exceeding fifteen (15) minutes at the hearing of the appeal.
Granted
2004-10-29 Book of authorities, Completed on: 2004-10-29 Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2004-10-29 Intervener's factum, Completed on: 2004-10-29 Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2004-10-19 Respondent's factum, Completed on: 2004-12-02 Attorney General of British Columbia
2004-10-18 Respondent's book of authorities, Completed on: 2004-12-02 Attorney General of British Columbia
2004-09-20 Order on motion to extend time
2004-09-20 Decision on motion to extend time, to serve and file the respondent, Attorney General of British Columbia's factum, record and book of authorities to Oct. 19/04 and to present oral argument at the hearing of the appeal, Ba
Granted
2004-09-20 Submission of motion to extend time, Ba
2004-09-14 Correspondence received from, (by fax) D.G. Perry, dated Sept. 13 re: deadline to file the reply British Columbia Hydro and Power Authority
2004-09-13 Reply to motion to extend time, (Letter Form), from Robert E. Houston, Q.C. dated 09/10/04, Completed on: 2004-09-13 Attorney General of British Columbia
2004-09-08 Appeal perfected for hearing
2004-09-07 Respondent's book of authorities, (service coming - rec'd Sept. 15), Completed on: 2004-09-21 British Columbia Hydro and Power Authority
2004-09-07 Respondent's record, (service coming - rec'd Sept. 15), Completed on: 2004-09-21 British Columbia Hydro and Power Authority
2004-09-07 Respondent's factum, (service missing - rec'd Sept.15), Completed on: 2004-09-21 British Columbia Hydro and Power Authority
2004-09-07 Response to motion to extend time, (additional response), Completed on: 2004-09-21 British Columbia Hydro and Power Authority
2004-09-03 Order on motion for leave to intervene, (BY FISH J.)
2004-09-03 Decision on the motion for leave to intervene, F, The motion for leave to intervene of the applicant, Friends of the Earth / Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length.
The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the intervener.
The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.
Pursuant to Rule 59(1)(a) the intervener shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their intervention.
IT IS HEREBY FURTHER ORDERED THAT:
The respondent, British Columbia Hydro and Power Authority, is granted leave to file a factum not to exceed 5 pages in reply to the factum of the intervener Friends of the Earth / Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association.
Granted
2004-09-02 Submission of motion for leave to intervene, F
2004-08-31 Response to motion to extend time, (Letter Form), from Frank Falzon dated Aug. 25, Completed on: 2004-08-31 Deputy Director of Waste Management
2004-08-31 Response to motion to extend time, (Letter Form), from David Perry dated Aug. 20 (see additional response filed 09/07/04), Completed on: 2004-08-31 British Columbia Hydro and Power Authority
2004-08-31 Response to motion to extend time, (Letter Form), from Monika Gehlen dated Aug. 24, Completed on: 2004-08-31 North Fraser Harbour Commission
2004-08-31 Motion to extend time, to serve and file the factum, record and book of authorities of the respondent A.G. - B.C. to Oct.19/04, Completed on: 2004-08-31 Attorney General of British Columbia
2004-08-27 Reply to the motion for leave to intervene, to B.C. Hydro's response, Completed on: 2004-08-27 Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2004-08-20 Response to the motion for leave to intervene, (bookform), Completed on: 2004-08-30 British Columbia Hydro and Power Authority
2004-08-20 Response to the motion for leave to intervene, (Letter Form), (fax) fr. Patricia Wilson, Completed on: 2004-08-20 North Fraser Harbour Commission
2004-08-20 Response to the motion for leave to intervene, Completed on: 2004-08-20 Attorney General of British Columbia
2004-08-10 Motion for leave to intervene, (bookform), Completed on: 2004-08-10 Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association
2004-08-10 Correspondence received from, Frank A.V. Falzon dated 08/05/04 re: WILL NOT BE SUBMITTING A FACTUM Deputy Director of Waste Management
2004-07-13 Appellant's book of authorities, Completed on: 2004-07-13 North Fraser Harbour Commission
2004-07-13 Appellant's record, Completed on: 2004-07-13 North Fraser Harbour Commission
2004-07-13 Appellant's factum, Completed on: 2004-07-13 North Fraser Harbour Commission
2004-05-14 Correspondence received from, M. Gehlen dated May 14, 2004 (fax copy) re: further to her letter dated May 7, 2004 North Fraser Harbour Commission
2004-05-07 Correspondence received from, M. Gehlen dated May 7, 2004 (fax copy) re: requesting to remove the Respondent, Environmental Appeal Board from the style of cause North Fraser Harbour Commission
2004-05-07 Correspondence received from, M. Rankin dated April 20, 2004 and addressed to the parties (fax copy) re: does not intend to participate in the appeal Environmental Appeal Board
2004-05-05 Appeal court record, (1 large envelope)
2004-04-23 Notice of appeal, Completed on: 2004-04-23 North Fraser Harbour Commission
2004-04-05 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted)
2004-03-26 Judgment on leave sent to the parties
2004-03-25 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA027158, dated July 29, 2003, is granted with no order as to costs.
Granted, no order as to costs
2004-02-16 All materials on application for leave submitted to the Judges, Ia Bi Arb
2003-11-03 Applicant's reply to respondent's argument, (to B.C. Hydro and Power Authority's response), Completed on: 2003-11-03 North Fraser Harbour Commission
2003-10-27 Respondent's response on the application for leave to appeal, Completed on: 2003-10-27 Attorney General of British Columbia
2003-10-24 Respondent's response on the application for leave to appeal, Completed on: 2003-10-29 British Columbia Hydro and Power Authority
2003-10-20 Letter acknowledging receipt of an incomplete application for leave to appeal
2003-09-29 Application for leave to appeal, (C/A Order filed Nov. 3/03 with service), Completed on: 2003-11-03 North Fraser Harbour Commission

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
North Fraser Harbour Commission Appellant Active
General Chemical Canada Ltd. Appellant Active

v.

Main parties - Respondents
Name Role Status
Attorney General of British Columbia Respondent Active
Canadian Pacific Railway Respondent Active
Deputy Director of Waste Management Respondent Active
British Columbia Hydro and Power Authority Respondent Active

Other parties

Other parties
Name Role Status
Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association Intervener Active

Counsel

Party: North Fraser Harbour Commission

Counsel
Michael P. Carroll, Q.C.
Monika B. Gehlen
Davis & Company
2800 Park Place
666 Burrard St
Vancouver, British Columbia
V6C 2Z7
Telephone: (604) 687-9444
FAX: (604) 687-1612
Agent
Patricia J. Wilson
Osler, Hoskin & Harcourt
1500 - 50 O'Connor St
Ottawa, Ontario
K1P 6L2
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: pwilson@osler.com

Party: General Chemical Canada Ltd.

Counsel
Michael P. Carroll, Q.C.
Monika B. Gehlen
Davis & Company
2800 Park Place
666 Burrard St
Vancouver, British Columbia
V6C 2Z7
Telephone: (604) 687-9444
FAX: (604) 687-1612
Agent
Patricia J. Wilson
Osler, Hoskin & Harcourt
1500 - 50 O'Connor St
Ottawa, Ontario
K1P 6L2
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: pwilson@osler.com

Party: Attorney General of British Columbia

Counsel
Nancy W. Brown
Elizabeth J. Rowbotham
Attorney General of British Columbia
1301 - 865 Hornby Street
Vancouver, British Columbia
V6Z 2G3
Telephone: (604) 660-3093
FAX: (604) 660-2636
Agent
Robert E. Houston, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Party: Canadian Pacific Railway

Counsel
Peter A. Spencer
Gourlay Spencer
300 - 744 Hastings St W
Vancouver, British Columbia
V6C 1A5
Telephone: (604) 687-6637
FAX: (604) 687-7035

Party: Deputy Director of Waste Management

Counsel
Frank A.V. Falzon
520 Comerford Street
Victoria, British Columbia
V9A 6K8
Telephone: (250) 384-3995
FAX: (250) 384-4924

Party: British Columbia Hydro and Power Authority

Counsel
J.R. Singleton
David G. Perry
Singleton Urquhart
1200 - 1125 Howe Street
Vancouver, British Columbia
V6Z 2K8
Telephone: (604) 682-7474
FAX: (604) 682-1283
Agent
Sean R. Giovannetti
Hewitt, Hewitt, Nesbitt, Reid
Fuller Building
Suite 604, 75 Albert Street
Ottawa, Ontario
K1P 5E7
Telephone: (613) 563-0202
FAX: (613) 563-0445

Party: Friends of the Earth/Les Ami(e)s de la Terre, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association

Counsel
Robert V. Wright
Margot A. Venton
Sierra Legal Defence Fund
Suite 900
30 St. Patrick Street
Toronto, Ontario
M5T 3A3
Telephone: (416) 368-7533 Ext: 31
FAX: (416) 363-2746
Email: rwright@sierralegal.org
Agent
Jeffrey W. Beedell
Lang Michener
300 - 50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 232-7171
FAX: (613) 231-3191
Email: jbeedell@langmichener.ca

Summary

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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

A992600

Respondent BC Hydro's application for judicial review to quash Board's decision dismissed

July 29, 2003
Court of Appeal for British Columbia (Vancouver)

CA027158

Appeal allowed: BC Hydro not a "responsible person"

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

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Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

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Webcasts

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Date modified: 2025-02-27