Zamani v. Ma Date:, 2015 BCPC 366

Citation: Zamani v. Ma Date: 20151119 2015 BCPC 0366 File No: 1424346 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: KIAN ZAMANI CLAIMANT AND: LI PING MA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing in person: K. Zamani

Counsel for the Defendant: O. Devries Place of Hearing: North Vancouver , B.C. Dates of Hearing: June 8 and 9, 2015 Date of Judgment: November 19, 2015 [ 1 ] This claim is brought under the Environmental Management Act for the cost of remediation of soil from a residential property which the Claimant says was contaminated by migration of hydrocarbons from a heating oil tank (UST) which is or was on the property owned by the Defendant at the relevant time. [ 2 ] The Defendant has now sold the subject property.

She says that the contaminated soil did not result from migrating oil or any other cause related to her property. She also says the evidence is insufficient to establish that any part of the Claimant’s property is a contaminated site. Alternatively, if the site is found to be a contaminated site and the contamination was from her property, she says she should be found to be a minor contributor and further that the Claimant’s costs for remediation are unreasonable. [ 3 ] The Defendant is counterclaiming for damage she says was caused to her property during the development of the Claimant’s new residence.

Specifically, she says a gate was damaged and her driveway and some sidewalks were cracked. [ 4 ] The Claimant’s property is located at 1715 22 nd Street in West Vancouver. It abuts the Defendant’s property at 1755 22 nd Street which is up gradient to the north from it. Mr. Zamani commenced development of a new home in January of 2014 at which time an older home was demolished and excavation for a new foundation commenced. In late March contaminated soil was located and the Claimant retained Ambleside Consulting, an environmental engineering firm, to assess the situation.

The soil affected by the contamination was removed. Claimant’s Evidence [ 5 ] A report was prepared by Ambleside and filed in these proceedings. Ms. Wilkinson, the supervising engineer, testified. In

summary, various soil samples were tested and the level of hydrocarbons increased moving toward Ms. Ma’s property. Based on the pattern of hydrocarbons found, the nature of the soil and their location in the soil, the opinion of the engineer was that there had been migration of oil from the Defendant’s property into the soil of the Claimant’s property. [ 6 ] Two kinds of testing were performed. Two field screening samples were taken on March 28 th 2012. These samples detect total petroleum hydrocarbons (TPH) and are qualitative rather than quantitative for concentrations of TPH’s greater or less than 500 ppm.

These tests showed concentrations of LEPH of 483 ppm and 439 ppm and concentrations of HEPH of 166 ppm and 147 ppm. These levels are below the levels set out in

Schedule 4. As a result, the soil was determined to be “hydrocarbon odorous nuisance soil” and was removed. [ 7 ] There are photographs which depict the soil in question. The field screening samples were taken from the edge of the excavation done to that point which was approximately 1.5 meters from the property line. The samples were taken at a depth of 3.1 and 3.2 meters from the surface. This is relevant as at depths of greater than 3 meters Commercial Land Use Soil Remediation Standards apply.

The nuisance soil was odourous for petrocarbons and appears from the photographs to be dark grey in color. [ 8 ] No samples were taken as the nuisance soil was stockpiled and removed. A total of 86.26 metric tons of nuisance soil were taken for treatment. [ 9 ] Four closure samples were taken which were fully analyzed. The sample labeled “North Wall East” contained LEPH at 3800 ppm which is 1800 ppm over the allowable level and 1700 ppm of HEPH which is 3300 under the allowable level.

All three of the other samples contained minimal amounts of LEPH and HEPH. [ 10 ] The “North Wall East” sample was taken at the north property line approximately ¼ of the way along the area which had been excavated to remove the nuisance soil. The entire excavation was approximately 16 meters long by 1.5 meters wide to 3 meters wide. The specific depth of the excavation is not in evidence except as depicted in the photographs and I estimate it to be approximately 2 meters. [ 11 ] According to the Ambleside report and the evidence of Ms.

Wilkinson, West Vancouver municipal records show there was a 325 gallon oil tank reported to be on the Defendant’s property at 1755 22 nd Street. The same records show there was no reported tank on the Claimant’s lot at 1715 22 nd Street. Those records also show that in 2013 a metal detection test was conducted on 1715 22 nd Street which was negative. [ 12 ] Due to the depth of the contamination Ms. Wilkinson said the contamination was not the result of a spill of oil on the surface. She also said that the contamination could have resulted from oil in the soil around a tank which has since been removed.

She said there was no evidence that she could see to indicate there had ever been a tank located on the Claimant’s property in the area where the

contaminated soil was found. [ 13 ] Ms. Wilkinson said that the West Vancouver Fire Department has been collecting information about the existence of underground oil storage tanks since the 1980’s. The database began with existing records and the municipality also began seeking information from individual property owners about the presence of any tanks, whether they were removed and any certificates as to removal (or presumably if they were decommissioned but not removed). She believes the program is voluntary. In her experience to date, the data base has proved to be accurate. [ 14 ] Ms.

Wilkinson said that natural gas became available in West Vancouver in the late 1960’s or early 1970’s. She said there are still some properties which have active underground oil tanks for oil furnaces. [ 15 ] The Claimant followed the advice of the environmental engineers at Ambleside with respect to what soil needed to be removed. The total cost, including the engineer’s services and report, is $14,120.14. He said that the soil removed and claimed for was not soil that would otherwise have had to be removed for the new foundation to be constructed. [ 16 ] The Claimant also called Mr.

Young who was the geo-technical engineer responsible for the shoring of the up gradient side of the excavation. He said the ground was properly shored up and the cracks to the driveway and other areas on the Claimant’s property were not likely caused by the excavation. They were too far away and were found in various areas of her property and so were more likely due to settling or improper preparation of the subsoil. He said there would have had to have been massive earth movement to have caused such damage and that her home itself would have been effected.

He did not observe any movement of the earth in the bank. Defendant’s Evidence [ 17 ] Ms. Ma said she purchased the property in 2012 and believes her home was built in 1991 according to what her realtor told her. The Home Inspection report lists the age of the home as “unknown”. There is nothing in the evidence to suggest that the driveway, sidewalks, stone and mortar garden beds or fence and gate are not original. [ 18 ] Ms.

Ma said she knew nothing of any oil tank or oil on her property and relied entirely on the property disclosure statement provided by the seller which states “Are you aware of any past or present underground oil storage tank(

s) on the Premises?” to which the seller answered “No”. There is no evidence she made any further inquiries in this regard until after the issue was raised with her by the Claimant. [ 19 ] The Defendant filed a document showing that on May 23 rd 2014 a surface metal detection inspection was conducted on 1755 22 nd Street to search for any underground tank in the areas outside of the footprint of the home or cemented areas and none was detected. This was done after the contamination was discovered. [ 20 ] Ms.

Ma said she did not remember any cracks to her sidewalks or driveway prior to the Claimant excavating on his lot. However, during the trial Ms. Ma was directed to produce the home inspection report she received prior to purchasing the property. It states that there were already cracks and settling observed on the sidewalks and driveway in 2012. [ 21 ] She also said that the cracks grew larger from September 2014 to February 2015. Mr. Young said any soil movement would have occurred at the time of the excavation and would not continue over time. [ 22 ] The Defendant called Mr.

Davies, a geo-technical engineer, as an expert. He did not attend to her property until February 22 nd 2015. His opinion was based on information he received from Ms. Ma that there were no cracks prior to the excavation. He also relied on photographs from 2012 which do not show any cracks to the sidewalks or driveway but was not told about the cracks and settling referred to in the home inspection. He agreed with the proposition that any cracking would have appeared at the time the excavation was underway and would not continue to expand over many months.

Finding on the Counterclaim [ 23 ] I find that the opinion of Mr. Davies as provided in his report is not reliable and accept the evidence of Mr. Young and the evidence of Mr. Davies in cross examination on the issue of the cause of the cracks. [ 24 ] In evidence it became clear that although there was a great deal of communication between the parties at the time of the excavation about allegations of damage being caused to the Defendant’s gate and to some cedar hedging (now conceded to be on the Claimant’s property), Ms.

Ma did not bring the cracks to the attention of the Claimant until he commenced this action in July of 2014. I do not accept that a homeowner would have observed significant cracking to their sidewalks and driveway coincident with an excavation on the property next door and not have immediately brought it to the attention of the person responsible for that excavation. [ 25 ] The alleged damage to the gate is a dropping of one side such that it scrapes the walkway. No other problem with the gate was apparent in the photographs and Ms. Ma was not able to describe any other damage.

At best the cost to repair would be under $100 to re- hang the gates and yet Ms. Ma claimed that the cost for repair would be $1500.00. I do not accept the balance of the evidence which Ms. Ma relied on to establish her damages which, as claimed, were excessive and unreasonable. [ 26 ] As a result of the forgoing matters, I find that Ms.

Ma’s evidence with regard to the timing and likely cause of the cracks or damage to her gate is not credible or reliable. [ 27 ] I find that she has failed to prove to the balance of probability that any damage was caused to her property as a result of the development of the Claimant’s property. Her counterclaim is dismissed.

Responsibility to Pay for the Soil Remediation [ 28 ] The Claimant relies on the provisions of the Environmental Management Act (the Act ). [ 29 ] The relevant provisions of the Act are:

Definitions and

Interpretation 39

(1) In this Part and

Part 5 "contaminated site" means an area of the land in which the soil or any groundwater lying beneath it, or the water or the underlying sediment, contains (

a) a hazardous waste, or (b another prescribed substance in quantities or concentrations exceeding prescribed risk based or numerical criteria or standards or conditions; "contamination" means the presence in soil, sediment, water or groundwater of (

a) a hazardous waste, or (

b) a substance prescribed for the purposes of paragraph (

b) of the definition of "contaminated site" in quantities or concentrations exceeding the criteria, standards or conditions prescribed for the purposes of the definition of "contaminated site"; "minor contributor" means a responsible person determined under

section 50 [minor contributors] to be a minor contributor; "owner" means a person who (

a) is in possession, (

b) has the right of control, or (

c) occupies or controls the use of real property, and includes, without limitation, a person who has an estate or interest, legal or equitable, in the real property, but does not include a secured creditor unless the secured creditor is described in section 45 (3) [persons responsible for remediation of contaminated sites] ; "responsible person" means a person described in

section 45 [persons responsible for remediation of contaminated sites] ; "site registry" means the site registry established under

section 43 [site registry] ; Persons responsible for remediation of contaminated sites 45

(1) Subject to

section 46 [persons not responsible for remediation] , the following persons are responsible for remediation of a contaminated site: (

a) a current owner or operator of the site; (

b) a previous owner or operator of the site;…

(2) In addition to the persons referred to in subsection (1), the following persons are responsible for remediation of a contaminated site that was contaminated by migration of a substance to the contaminated site: (

a) a current owner or operator of the site from which the substance migrated; (

b) a previous owner or operator of the site from which the substance migrated;… Persons not responsible for remediation 46

(1) The following persons are not responsible for remediation of a contaminated site:… (

d) an owner or operator who establishes that (

i) at the time the person became an owner or operator of the site,

(

A) the site was a contaminated site, (

B) the person had no knowledge or reason to know or suspect that the site was a contaminated site, and (

C) the person undertook all appropriate inquiries into the previous ownership and uses of the site and undertook other investigations, consistent with good commercial or customary practice at that time, in an effort to minimize potential liability, (ii) if the person was an owner of the site, the person did not transfer any interest in the site without first disclosing any known contamination to the transferee, and (iii) the owner or operator did not, by any act or omission, cause or contribute to the contamination of the site; …(

j) a person who owns or operates a contaminated site that was contaminated only by the migration of a substance from other real property not owned or operated by the person; …

(3) A person seeking to establish that he or she is not a responsible person under subsection (1) has the burden to prove all elements of the exemption on a balance of probabilities. General principles of liability for remediation 47

(1) A person who is responsible for remediation of a contaminated site is absolutely, retroactively and jointly and separately liable to any person or government body for reasonably incurred costs of remediation of the contaminated site, whether incurred on or off the contaminated site. (2) Subsection (1) must not be construed as prohibiting the apportionment of a share of liability to one or more responsible persons by the court in an action or proceeding under subsection (5) or by a director in an order under

section 48 [remediation orders] .

(3) For the purpose of this section, "costs of remediation" means all costs of remediation and includes, without limitation, (

a) costs of preparing a site profile, (

b) costs of carrying out a site investigation and preparing a report, whether or not there has been a determination under

section 44 [determination of contaminated sites] as to whether or not the site is a contaminated site, (

c) legal and consultant costs associated with seeking contributions from other responsible persons, and (

d) fees imposed by a director, a municipality, an approving officer or the commission under this Part.

(4) Liability under this Part applies (

a) even though the introduction of a substance into the environment is or was not prohibited by any legislation if the introduction contributed in whole or in part to the site becoming a contaminated site, and

(5) Subject to section 50 (3) [minor contributors] , any person, including, but not limited to, a responsible person and a director, who incurs costs in carrying out remediation of a contaminated site may commence an action or a proceeding to recover the reasonably incurred costs of remediation from one or more responsible persons in accordance with the principles of liability set out in this Part.

(6) Subject to subsections (7) and (8), a person is not required to obtain, as a condition of an action or proceeding under subsection (5) being heard by a court, (

a) a decision, determination, opinion or apportionment of liability for remediation from a director, or (

b) an opinion respecting liability from an allocation panel.

(7) In all cases, the site that is the subject of an action or proceeding must be determined or considered under

section 44 [determination of contaminated sites] to be or to have been a contaminated site before the court can hear the matter.

(8) Despite subsection (7), if independent remediation has been carried out at a site and the site has not been determined or considered under

section 44 [determination of contaminated sites] to be or to have been a contaminated site, the court must determine whether the site is or was a contaminated site.

(9) The court may determine in accordance with the regulations, unless otherwise determined or established under this Part, any of the following: (

a) whether a person is responsible for remediation of a contaminated site; (

b) whether the costs of remediation of a contaminated site have been reasonably incurred and the amount of the reasonably incurred costs of remediation; (

c) the apportionment of the reasonably incurred costs of remediation of a contaminated site among one or more responsible persons in accordance with the principles of liability set out in this Part;

(

d) such other determinations as are necessary to a fair and just disposition of these matters. Minor contributors 50

(1) A director may determine that a responsible person is a minor contributor if the person demonstrates that (

a) only a minor portion of the contamination present at the site can be attributed to the person, (

b) either (

i) no remediation would be required solely as a result of the contribution of the person to the contamination at the site, or (ii) the cost of remediation attributable to the person would be only a minor portion of the total cost of the remediation required at the site, and (

c) in all circumstances the application of joint and separate liability to the person would be unduly harsh.

(2) If a director makes a determination under subsection (1) that a responsible person is a minor contributor, the director must determine the amount or portion of remediation costs attributable to the responsible person.

(3) A responsible person determined to be a minor contributor under subsection (1) is liable for remediation costs in an action or proceeding brought by another person or the government under

section 47 [general principles of liability for remediation] only up to the amount or portion specified by the director in the determination under subsection (2).

(4) If a director has determined that a responsible person is a minor contributor for a site, the site is considered to be a contaminated site at the time of that determination, despite the absence of a determination under section 44 (1) [determination of contaminated sites] . [ 30 ] The relevant provisions of the Contaminated Sites Regulation (the Regulation) are: Definition of contaminated site 11

(1) Subject to

section 12 and subsections (2), (3) and (4) of this section, the following substances, standards and conditions are prescribed for the purposes of the definition of "contaminated site" in

section 39 of the Act: (

a) the land use of the site is agricultural, commercial, industrial, urban park, wildlands or residential and the concentration of any substance in the soil is greater than (

i) the applicable generic numerical soil standard, or (ii) the lowest value of the applicable matrix numerical soil standards; (a.1) the land use of the site is wildlands land use and (

i) the concentration of any substance in the soil at a depth of less than 3 metres is greater than the numerical standards for soil that would apply if the land use of the site were urban park land use, or (ii) the concentration of any substance in the soil at a depth of 3 metres or more is greater than the numerical standards for soil that would apply if the land use of the site were commercial land use; 15

(1) The numerical standards must be applied in determining whether a site is a contaminated site.

Schedule 4 Generic Numerical Soil Standards 1 COLUMN I Substance COLUMN II Agricultural (AL) COLUMN III Urban Park (PL) COLUMN IV Residential (RL) COLUMN V Commercial (CL) COLUMN VI Industrial (IL) Miscellaneous Inorganic and Organic Substances petroleum hydrocarbons VPHs 7 200 200 200 200 200 LEPHs 8 1 000 1 000 1 000 2 000 2 000 HEPHs 9 1 000 1 000 1 000 5 000 5 000 Persons not responsible — clarification of innocent acquisition exemption

28 When judging whether an owner or operator has, under section 46 (1) (d) (i) (

C) of the Act, undertaken all appropriate inquiries into the previous ownership and uses of a site and undertaken other investigations consistent with good commercial or customary practice at the time of acquisition of the property, consideration must be given to all of the following: (

a) any personal knowledge or experience of the owner or operator respecting contamination at the time of the acquisition; (

b) the relationship of the actual purchase price to the value of the property if it was uncontaminated; (

c) commonly known or reasonably ascertainable information about the property at the time of the acquisition; (

d) any obvious presence of contamination or indicators of contamination or the feasibility of detecting such contamination by appropriate inspection at the time of the acquisition. Determining compensation under section 47 (5) of the Act 35

(1) For the purposes of determining compensation payable under section 47 (5) of the Act, a defendant named in a cost recovery action under that

section may assert all legal and equitable defences, including any right to obtain relief under an agreement, other legislation or the common law.

(2) In an action between 2 or more responsible persons under section 47 (5) of the Act, the following factors must be considered when determining the reasonably incurred costs of remediation: (

a) the price paid for the property by the person seeking cost recovery; (

b) the relative due diligence of the responsible persons involved in the action; (

c) the amount of contaminating substances and the toxicity attributable to the persons involved in the action; (

d) the relative degree of involvement, by each of the persons in the action, in the generation, transportation, treatment, storage or disposal of the substances that caused the site to become contaminated; (

e) any remediation measures implemented and paid for by each of the persons in the action; (

f) other factors relevant to a fair and just allocation.

(3) For the purpose of

section 47 of the Act, any compensation payable by a defendant in an action under section 47 (5) of the Act is a reasonably incurred cost of remediation for that responsible person and the defendant may seek contribution from any other responsible person in accordance with the procedures under

section 4 of the Negligence Act . Applicability of the Legislative Scheme [ 31 ] According to the Ministry of Environment overview the net of liability is first broadly cast with specific provisions for exemption. The remediation liability provisions are based on the “polluter pays principle” in that those who cause contamination should be responsible for clean-up costs. These principles are reflected in the relatively few cases which have interpreted and applied the Act. (See Gehring et al v.

Chevron Canada Limited et al. 2006 BCSC 1639 at para 31 and 32 .) [ 32 ] At paragraph 133 of Gehring the court said: “The scheme of the EMA, like environmental statures in many jurisdictions, removes the burden of proving causation or fault-based conduct. It takes the practical approach that the contamination exists, and must be remediated. The legislation imposes responsibility even though a party may have acted consistently with the standards which existed at the time the contamination occurred or spread.” [ 33 ] In First National Properties Ltd. v.

Northland Road Services Ltd. 2008 BCSC 569 at para 50 the court found that an owner need not seek a determination under the regulatory process set out in the Act as a prerequisite to a cost recovery action; [50] In allowing the appeal, the court held there was no such prerequisite to an independent cost-recovery action under the Waste Management Act .

In the course of addressing the requirements of the Waste Management Act , Huddart J.A., for the court, made the following comments at ¶41, 43, 44, 46, 61 and 70, regarding the legislation: Fundamental to the new scheme were three principles: absolute liability, retroactivity, and joint and several liability, all in aid of the underlying governmental policy of “polluter-pay”… … … The policy underlying the new scheme is to strive to hold those who benefited economically from that contamination responsible for

its remediation. As Professors Tollefson and Belevsky noted at p. 58 of their final report “External Review of Remediation Liability Provisions: The Waste Management Amendment Act, 1993” (31 July 1996), … traditional common law analysis was thought insufficient to allocate the costs of pollution remediation properly. Limitation periods were considered to pose a significant barrier to the recovery of damages at common law for historical pollution. Contract analysis focuses only on current and immediately previous owners of a site.

Negligence imposes a burden on those bringing an environmental action to establish causation as well as the failure to meet the appropriate standard of care. This is a difficult burden when contamination is the result of the activities of many businesses over many years.

At page 60, they noted that the principle of retrospectivity is important to ensure the net can be cast sufficiently widely to capture all previous polluters, not just the current of penultimate owners or operators of the land. … The concepts of absolute and joint and several liability facilitate actions against alleged polluters, make recovery of damages from multiple defendants more likely, and remove the burden of proving causation or fault-based conduct. … …On a plain reading, it [now s. 47(5) of the Act ] creates a statutory cause of action for any person who has remediated a contaminated site, -- defined in s. 26(1) [now s. 39(1) of the Act ] to mean an area of land in which the soil or any groundwater lying beneath it, or the water or the underlying sediment, contains a special waste or other prescribed substance -- to recover its “reasonably incurred” clean-up costs from other “responsible persons”. … Simply put, s. 27 [now s. 47 of the Act ] is not ambiguous when read alone.

It does not become so when read in the context of

Part 4, or its object or its purpose. It creates a new civil cause of action, entire unto itself, as a means of requiring the polluter to pay and encouraging an owner to remediate. … [55]

Section 47 creates a new statutory cause of action that is status based, not fault based. The object of the legislation is to encourage prompt remediation of contaminated sites. It does not impose a statutory obligation to remediate a contaminated site but rather provides a right to recover reasonable remediation costs from a “responsible person”, if ordered to do so by a government official or by the Court pursuant to s. 47(5).

Under the Act it is not an offence to contaminate a site, only to fail to remediate if ordered to do so. [56 The cause of action is absolute, retroactive, and imposes separate liability on all “responsible persons” that are very broadly defined. It does not limit its retroactive (i.e., retrospective) application to actions where a plaintiff’s knowledge of the material facts arose within the limitation periods provided by ss. 3(2) or 3(5) of the Limitation Act and that would have been statute-barred on April 1, 1997.

Workshop confirms the Court cannot make an order for the recovery of remediation costs until those costs are known (see ¶26 and 27). [ 34 ] In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc. 2014 BCSC 1619 at paragraphs 60 and 111 the Court said: [60 ] The EMA is a complete code for dealing with contaminated sites ( Workshop , at para. 70).

Part 4 of the EMA , particularly s. 47 , establishes a foundation for liability for the costs of remediating contaminated sites that is not predicated on a breach of a common law or statutory duty. Such cost recovery actions are not claims for “damages” within the meaning of s. 3(2)(

a) of the 1996 Limitation Act . [111] The whole purpose of the EMA regime is to ensure that the person who pollutes the land pays for the cost of its restoration. This is the so-called “polluter pays” principle that animates the regime. The subsequent land-owners’ motives for remediation are largely irrelevant. So long as the remediation methodology and the associated costs are reasonable, the polluter can held liable for those costs.

[ 35 ] A potential or actual contaminated site may be dealt with through the procedures set out in the Act which give the Director authority. Alternatively, owners may proceed with a cost recovery action in court to recover costs of remediation. [ 36 ] S. 47(5) sets out four requisite elements of a cost recovery action. S. 47(7) and (8) provide that the Court may make a determination as to whether a site is or was contaminated unless that determination has already been made by the Director.

The latter provision is aimed the practical realities of independent remediation efforts such as that undertaken in the matter before the court. [ 37 ] S. 39 defines what a contaminated site is and refers to numerical standards set out in s. 11 and, in particular,

Schedule 4 to the Regulation. [ 38 ] In Simpson et. al. v. Chapman et. al. 2009 BCPC 28 at paragraph 12 the court observed: “The presence of an underground oil tank and oil soil does not necessarily lead to the conclusion that the site meets the legal definition of contaminated site.” [ 39 ] In Aldred v. Colbeck 2010 BCSC at para 61 the court found: [61 ] The EMA does not define a contaminated site by reference to property boundaries. The size of the area is not determinative. A contaminated site is an area of land in which contamination is found. This conclusion flows from the reasonable

interpretation of s. 44 of the EMA which empowers the director to determine “the boundaries of the contaminated site”. [ 40 ] S. 45(1) (

b) sets out who is responsible for clean-up. Any past owner may be found to be a “responsible person” and there is no time limitation for pursuing any previous owner. In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc. 2014 BCSC 1619 at paragraphs 47 and 48 the Court said: [47] Any

interpretation and application of the statutory liability imposed by the EMA “should advance not hobble the integrity” of that regime. The EMA expressly adopts as “general principles of liability for remediation” an exposure to liability that is both “absolute” and “retroactive” ( s. 47(1) ).

Further, ss. 47(1), (3), and (5) combine to ensure liability is for all costs of remediation reasonably incurred, which by the very nature of the exercise can include costs incurred over many years. [49] This holding will not, if applied in other EMA cost recovery cases, result in “indeterminate liability” on the part of “responsible persons” as suggested by ICI. Such persons can immunize themselves against liability for future remediation costs through the certificate of compliance regime contemplated by the Act .

Exposure in the meantime for all reasonable remediation costs regardless of when they were incurred, is consonant with the “polluter pays” and retroactivity principles that are the primary drivers behind the cost recovery regime set out in the Act . (See also First National as quoted above.) [ 41 ] If someone is found to be a “responsible person” their liability for clean-up is absolute, retroactive and joint and separate. The costs may be allocated among responsible persons according to s. 47 (9) (

c) of the Act and s. 35 of the Regulation. [ 42 ] In Aldred v. Colbeck 2010 BCSC the court noted at para 51: [51] The descriptions of responsible persons are disjunctive. Any person who is described in any of paragraphs (

a) through (

e) is potentially liable for the remediation of a contaminated site. The liability among those who are responsible persons is joint and several… [ 43 ] With respect to a making a determination of how to allocate the costs at paragraphs 118 and 134 the court in Gehring found: [118] The reference in s. 35(2) of the Regulations is to factors to be considered when determining the reasonably incurred costs of remediation.

However, as a matter of principle, these factors also ought to be considered when determining the allocation of reasonably incurred costs among responsible persons. [134] There is no precise formula for allocating responsibility among the "responsible persons"…. [ 44 ] S. 46 sets out the majority of exemptions from responsibility including what is referred to as innocent acquisition. The onus of proof of all of the elements of any exemption is upon the person asserting the exemption. The provisions for exemption are conjunctive and all must be proven to the balance of probability.

[ 45 ] In Dolinsky v. Wingfield 2015 BCSC 238 at paragraphs 69 and 70 the court said: [69] In other words, the defendant bears the onus, and in order to take advantage of any of the statutory defences, a defendant must establish each and every element of the defence, and the defence will fail if that defendant fails to prove even one aspect of the defence. [70] When interpreting and applying the statutory defences raised by the defendants, it is also important to remember the underlying principles and purposes of the EMA , which together urge the casting of a wide net of liability and a correspondingly narrow

interpretation of any exemptions or defences. [ 46 ] S. 47 and s. 28 of the Regulation provide that an owner who meets the burden of proof under the innocent acquisition provisions including the making of all appropriate inquiries at the time they acquired the property is exempt from liability. [ 47 ] In Aldred the Court was addressing s. 46 and in particular the provisions respecting innocent acquisition in s. 46(1)(d). At paragraph 54 the court said: [54] Section 46(3) provides that the party seeking to avoid liability must prove the elements in s. 46(1)(

d) on a balance of probabilities. In that regard, it is important to recognize that the word “and” is used conjunctively in relation to subparagraphs (i), (ii) and (iii), and in relation to clauses (A), (B), and (

C) of subparagraph (i). Failure to prove any of the factors enumerated in subparagraphs (

i) through (iii) will result in liability. [ 48 ] It is clear that the relevant time period for making the requisite “reasonable inquiries” is prior to the acquisition of the property by the responsible person seeking to rely on this exemption. [ 49 ] Relevant to the matter before this court is s. 46(1) (

j) which provides that an owner is not a responsible person and therefore liable to pay for any clean-up if the substance migrated from another property. [ 50 ] S. 50 provides that a person may apply to the Director for a determination that they are a “minor contributor”.

S. 50 of the Act and s.38 of the Regulation refer only to the Director making such a decision, however the Ac t has been interpreted in the case law to allow the Court to also make such a determination. ( See Dolinsky and Gehring. ) [ 51 ] A finding that a responsible person is a minor contributor exempts them from absolute, joint and several liability and they are responsible only for the amount of clean-up costs they are determined to be responsible for. (See: Gehring at paras 89 and following.) [ 52 ] In Gehring the court found at paragraph 102 that : “The EMA does not define what is “minor’ but, in my view, it must be relatively insignificant or immaterial”. [ 53 ] An owner may apply for certificate of compliance following remediation.

Once issued, the certificate exempts that owner from any future liability. In some circumstances further remediation may occur by a subsequent owner and without a certificate any previous owner, even those who undertook remediation, could be found to be a “responsible person”. [ 54 ] The EMA also established a site registry, which is open to the public, where all information relating to any sites found to be contaminated or remediated must be filed.

Issues to be determined Did the contamination of the Claimant’s property migrate from the Defendant’s property? [ 55 ] I find as fact that the LEPH detected in the North Wall East sample migrated from the Defendant’s property. The only material or probative evidence before the court bearing on this issue is that of Ambleside Consulting in its report and the evidence of Ms. Wilkinson. Her opinion is corroborated by the records of the municipality which indicate there was a UST on the Defendant’s property and there was no record of it having been removed.

Is the Claimant’s property a “contaminated site”? [ 56 ] The North Wall East sample is sufficient to establish that the Claimant’s property is a contaminated site. The Defendant did not contest the methodology or accuracy of the analysis of that sample. What the boundaries of a “contaminated site” are is left to the court to determine from all the evidence.

Is the Defendant a “responsible person”? [ 57 ] As the owner of the property from which the contamination migrated, the Defendant is prima facie a responsible person. The Claimant is not a responsible person pursuant to s. 46(1) (j). Did the Claimant incur costs for remediation? [ 58 ] The costs claimed by the Claimant are all within the enumerated categories of costs allowed to be recovered under s. 47(3) and also for removal of the contaminated and nuisance soil which I find to be all directly related to the migration of the hydrocarbons from the Defendant’s property.

Has the Defendant proven any exemption from liability? [ 59 ] The Defendant says she is exempt from liability under s. 46(1)(d). Having found that the contamination migrated from her property and given the age of her home and that it is heated by natural gas, I find that her property was contaminated at the time she purchased it. I also find that she did not cause or contribute to the contamination of the site. [ 60 ] I also find that Ms. Ma had no knowledge or reason to know her property was contaminated.

However, her lack of knowledge is the result of her failure to make all appropriate inquiries or investigations as set out in 46(1)(d)(i)(C). [ 61 ] At the time Ms. Ma purchased the property in 2012, she relied entirely on the property disclosure statement with respect to any potential issues arising from an UST. She failed to make any inquiry with the municipality or the Site Registry. The issues and costs associated with UST removal, soil contamination and remediation are now, and certainly as of 2012 were, well known in the residential real estate field. Ms.

Ma was represented by a realtor at the time of her purchase. I find that the record of the presence of the UST on her property would have been commonly known and reasonably ascertainable information as set out in s. 28(

c) of the Regulation. [ 62 ] The court found in Dolinsky at paragraph 104 that: [104 ] In that respect, it is important to note that it is not the specific knowledge of a UST that is required, but rather simply the knowledge that the property might be contaminated in some manner. [ 63 ] It is trite law that the onus is on the purchaser of real property to exercise due diligence and satisfy him or herself as to the quality of the property being sold. ( See: Cardwell v.

Perthen 2007 BCCA 313 at paragraph 22 ) The presence of a UST on a property which has apparently been redeveloped after the time when oil heating was commonly used would not be apparent on inspection.

The only means to determine whether there could be an issue in this regard is to make inquiries of the municipality or the site registry. [ 64 ] In Aldred the court found at para 70: [70] Apart from the fact that the Colbecks had reason to suspect that there may have been contamination on the site, I cannot conclude that they undertook all appropriate inquiries into the previous ownership and uses of the site, or that they undertook other investigations, consistent with good commercial or customary practice at that time, in an effort to minimize potential liability. The introductory words in s. 46(1)(d)(

i) indicate that the phrase “at that time” refers to the time of purchase by the party claiming the protection of the exemption. The Colbecks led no evidence of good commercial or customary practice in 1998. What is clear is that they were warned about the possible problems associated with the presence of an oil tank and did nothing to avoid any problems that had arisen from its presence. [ 65 ] In this matter Ms. Ma did not lead evidence of what the good commercial or customary practice was in 2012.

Furthermore, it is clear from the evidence before me that there were avenues of inquiry open to her that she did not pursue. [ 66 ] There is also no evidence as to whether Ms. Ma disclosed the issue of the contamination in issue at the time she sold the property. [ 67 ] I find that Ms. Ma has not met the onus upon her to establish the innocent acquisition exemption. Is Ms. Ma a minor contributor under s. 50? [ 68 ] On all the evidence, Ms. Ma’s property was the sole contributor to the contamination. There is no issue as to allocation of liability or joint or separate liability.

I find that this provision of the Act and s. 35 (2) of the Regulation are not applicable to the circumstances before the court.

What are the boundaries of the “contaminated site”? [ 69 ] I infer from the evidence of Ms. Wilkinson regarding the composition of the soil and the likely flow of hydrocarbons that the boundaries of the “contaminated site”, specifically soil containing contaminants over the allowable limit, was within a meter to two meters on a plane extending out laterally from where the North Wall West sample was taken. A sample taken approximately a meter below did not contain any significant amounts of contaminants. Samples taken approximately 5 meters to the west also did not contain significant amounts of contaminants.

What are the Claimant’s reasonable incurred costs? [ 70 ] I find that the costs for removal of all of the soil which was either over the allowable levels or that which was directly related to the migration of odorous hydrocarbons and categorized as nuisance soil is reasonable. Ambleside remained on site during the excavation and stockpiling of the contaminated soil. The area of soil on the Claimant’s property which was excavated was all patently odorous for hydrocarbons. The southern edge of the area of contamination field tested at just less than one half the allowable limits of the residential standards.

The only possible source for those hydrocarbons was migration from the Defendant’s property. [ 71 ] The overarching principles of the Act require that “the polluter pays” for remediation. I find it would not be reasonable to interpret the Act to require an owner to have engineers on site to take samples and send those samples for analysis, using as an example, for every square meter of soil which is removed during a remediation. This would cause inordinate delay and expense. Seepage is the mechanism by which the hydrocarbons migrate.

Thus, the concentrations will diminish the further the contaminants travel. [ 72 ] There is nothing in the Act itself or in the cases which have considered and applied the Act , which supports the argument that the polluter is responsible only for the costs of the remediation of soil which contains contaminants over the prescribed limits. Furthermore, the removal of the nuisance soil was required in order for the Claimant to obtain and file a certificate of compliance. [ 73 ] Finally, with respect to the issue of whether it is fair to require Ms.

Ma to pay for the remediation costs incurred by the Claimant, it was open to her to pursue the person who sold the property to her and open to that person to join the person who sold to them and so on. Finding and Order [ 74 ] I find Ms. Ma liable to pay the Claimant Mr. Zamani all of the costs associated with remediation of the soil on his property which was contaminated by migration of hydrocarbons from the Defendant’s property in the amount of $14,120.14. There will be pre- judgement interest to be calculated by the Registry from June 1 st 2014.

The Claimant is also entitled to his filing and service fees in the amount of $176.00. _____________________________ The Honourable J.C. Challenger Provincial Court Judge