Docket: CACV2173 EnviroGun Ltd. v. Clint Kimery, 2012 SKCA 73

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 73 Date: 20120724 Between: Docket: CACV2173 EnviroGun Ltd. and Clint Kimery (Appellants) Appellants - and - Province of Saskatchewan, as represented by The Minister of the Environment (Respondent) Respondent Coram: Klebuc C.J.S., Vancise & Richards JJ.A. Counsel: David McKay for the Appellant Charita Ohashi for the Respondent, Province of Saskatchewan Merrilee Rasmussen, Q.C. for the Respondent, R.M. of Sherwood

Appeal: From: 2011 SKQB 339 Heard: June 1, 2012 Disposition: Dismissed Written Reasons: July 24, 2012 By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Richards Vancise J.A. I. Introduction [ 1 ] The appellant, EnviroGun Ltd. operated a hazardous waste transfer station on property located in the R.M. of Sherwood from 1996 to 2010. The appellant, Clint Kimery, is the sole shareholder and director of EnviroGun Ltd.

EnviroGun collected, contained, stored and treated hazardous wastes including used oil, antifreeze and autobody waste on the property located in the R.M. of Sherwood. [ 2 ] The Minister of the Environment issued an Environmental Protection Order (“EPO”) dated January 11, 2011 pursuant to s. 47 of The Environmental Management and Protection Act, 2002 [1] (“ E.M.P.A. ”) to the appellants, EnviroGun and Clint Kimery, which stated in relevant part: WHEREAS the Minister is of the opinion that Clint Kimery and EnviroGun Ltd.: 1.

Has done, or is doing anything or carrying out any activity and specifically the improper storage of hazardous substances and waste dangerous goods at the EnviroGun Ltd. facility that may cause, is causing, or has caused an adverse effect as defined in The Environmental Management and Protection Act, 2002 . 2. Are a person responsible for a discharge as set out in

Section 2 (

w) of The Environmental Management and Protection Act, 2002 . [ 3 ] In the EPO, the Minister gave a number of directions to the appellants which were to be completed by March 31, 2011. [ 4 ] The appellants appealed the decision of the Minister to the Court of Queen’s Bench pursuant to s. 54 of the E.M.P.A. which is limited to a question of law. That appeal was denied by the Court of Queen’s Bench and the appellants appeal to this Court. [ 5 ] For the reasons that follow, I find that the appeal must be dismissed. II.

Facts [ 6 ] The appellants operated the business of a hazardous waste transfer station on the subject property, located in the Rural Municipality of Sherwood (the “R.M.”). The business involved the collection, containment, storage and treatment of hazardous wastes including oil, antifreeze and other automotive waste materials. The appellant, EnviroGun Ltd., had initially been issued a permit under the E.M.P.A. in 1996.

It had obtained a renewal of the approval of its operation on May 30, 2008, and at that time was requested by the Minister of Environment (the “Minister”) to provide a reclamation and decommissioning plan. The appellants never provided the requested plan to the Minister. [ 7 ] As a result of failure to pay tax arrears over a period of many years, the R.M. took title to the subject property on August 27, 2009. A Notice to Vacate was served on the appellants, requiring them to vacate the property on or before January 30, 2010.

The appellants requested additional time and the R.M. agreed to extend the deadline to February 17, 2010.

[ 8 ] The appellants vacated the property as required by the R.M., but did not advise the Minister and did not request or receive approval of the Minister as required by s. 17 of The Hazardous Substances and Waste Dangerous Goods Regulations [2] (the “ Regulations ”). [ 9 ] By the letter dated October 21, 2010, both the appellants were provided with a Notice of Intent to issue an Environmental Protection Order. The appellants did not respond to the Notice of Intent within the 30-day period prescribed in clause 49(2) (

b) of the E.M.P.A. , but did respond after the 30-day period had expired by saying no more than that the Envirogun Ltd. site had been in good condition when the R.M. took possession of it.

All of the issues to which the appellants refer in their outline of the facts contained in their factum were known to them at the time that the Notice of Intent was issued. [ 10 ] On January 11, 2011, the Environmental Protection Order (“EPO”) was issued to the appellants by the Minister. [ 11 ] By Notice of Motion dated February 10, 2011, the appellants appealed the EPO pursuant to the statutory right of appeal provided in s. 54 of the E.M.P.A. and named the Province as the respondent. The R.M. was added as a party in the Court of Queen’s Bench by consent of the appellants and the Minister of Justice.

The matter was heard on June 16, 2011 by Madam Justice J.E. McMurtry. Her written decision was issued on September 16, 2011. The appellants have appealed from that decision by Notice of Appeal October 11, 2011. III. Issues [ 12 ] The following issues are raised by the appellants on this appeal. 1. Should the appellate court judge have conducted a judicial review in this matter instead of a statutory appeal? 2. What is the appropriate standard of review? 3. What is the record, including whether the appellate court judge erred in considering matters not specifically mentioned in s. 54 of the E.M.P.A ? 4.

That the appellate court judge erred in finding that the principle of polluter-pays applies in this circumstance. 5. That the appellate court judge erred in finding that the appellant Kimery was personally liable as a person responsible for a discharge pursuant to the EPO issued by the Minister. A. Appeal or Judicial Review [ 13 ] The appellants argue that the appellate court judge erred in not conducting judicial review of the matters in question instead of conducting an appeal pursuant to s. 54 of the E.M.P.A . [ 14 ] The E.M.P.A . provides a right of appeal in s.54 as follows: 54

(1) Any person aggrieved by an environmental protection order may appeal on a question of law to a judge of the Court of Queen’s Bench within 30 days after the date of the order.

(2) The record of an appeal pursuant to subsection (1) consists of: (

a) the environmental protection order; (

b) the written representations made to the minister by the person named in the environmental protection order; (

c) the minister’s decision pursuant to subsection 49(4); and (

d) the notice of motion commencing the appeal to the Court of Queen’s Bench.

(3) A person with respect to whom a certificate has been entered as a judgment pursuant to

section 53 may appeal against the amount of the costs and expenses set out in the certificate to a judge of the Court of Queen’s Bench within: (a) 30 days after the date of the filing of the certificate; or (

b) if the person has made representations to the minister pursuant to

section 53, within 30 days after the minister has issued a decision.

(4) On hearing an appeal pursuant to this section, the judge of the Court of Queen’s Bench may issue an order: (

a) confirming the environmental protection order or the amount of costs and expenses set out in the certificate;

(

b) amending or varying the environmental protection order or the amount of costs and expenses set out in the certificate; (

c) quashing the environmental protection order or the certificate; or (

d) doing any other thing that the judge considers appropriate.

(5) In an order issued pursuant to subsection (4), the judge of the Court of Queen’s Bench may specify the period within which the order must be complied with. [ 15 ] The right of appeal exists only because it is provided for in the statute. There is no inherent right of appeal and the appellants in this case appealed pursuant to the right of appeal granted in s. 54 of the E.M.P.A .

They now contend however that the trial judge erred in not conducting judicial review on an expanded record including affidavits submitted by the appellant Kimery and others. [ 16 ] They contend that, by including the Notice of Intent and the appellant’s response to the Notice of Intent issued by the Minister in the material she considered, the appellate court judge had implicitly agreed to the availability of judicial review but then had failed to do so.

This ignores the fact that the appellants themselves requested the inclusion of these documents so that the matter could be fairly decided by the appellate court judge, a subject on which I will have more to say later. [ 17 ] The E.M.P.A. provides that any person may appeal by way of a notice of motion on a question of law to a judge of the Court of Queen’s Bench.

The question is therefore did the appellate court judge err in not conducting judicial review. [ 18 ] The appellants having filed a notice of motion to initiate an appeal under s. 54 cannot now argue that the judge should have conducted a judicial review. In my opinion, having elected the method by which they should proceed, they cannot now resile from it. If they are entitled to judicial review, that is a matter which can be argued if and when an application for judicial review is made. B.

The Record [ 19 ] The appellants contend that the appellate court judge erred in admitting into evidence the Notice of Intent of the Minister because it is not included as one of the items to be included in the record of appeal pursuant to s. 54(2) of the E.M.P.A. [ 20 ] They argue that the Notice of Intent cannot be part of the record because s. 54(2) specifically sets out what the record is to contain.

However, the appellants themselves argued that the Notice of Intent should be included as part of the record so the trial judge could fairly decide the allegations that the EPO was substantially different from the Notice of Intent. The appellants having argued for the inclusion of the material cannot now complain. In any event, I am not persuaded that the inclusion of the Notice of Intent adversely altered the result. [ 21 ] I find the appellate judge committed no error warranting the intervention of the Court in her attempt to fairly decide the issue. C.

Standard of Review [ 22 ] An appeal can be brought under s. 54 of the E.M.P.A. to the Court of Queen’s Bench on a question of law alone. The appellants contend the appellate court judge erred in finding that the standard of review was reasonableness and not correctness. She noted that all parties agreed that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick [3] sets out the guiding principles for appellate or judicial review of administrative action.

She noted that Justices Bastarache and LeBel, for the majority, summarized the important factors for determining the appropriate standard of review for tribunals acting in an administrative capacity as follows: 64 The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [ 23 ] The majority then noted that deference should be shown to an administrative tribunal when the decision-making under review is closely connected to the day-to-day functions of the tribunal (see: paras. 51-56). [ 24 ] In our opinion the appellate court judge did not err in finding that the appropriate standard was reasonableness. In the

circumstances of this case, however, it matters not, because the decision is not only reasonable but it is correct. D. Polluter-pay Principle [ 25 ] The appellants contend that the appellate court judge erred in finding that the Minister’s action was consistent with the polluter-pay principle which assigns responsibility for contaminants to the original polluter. The judge noted the principle has been found by the Supreme Court of Canada in Imperial Oil Ltd. v.

Quebec (Minister of the Environment) , [4] to be firmly entrenched in Canadian environmental law (see: paras. 22-25). [ 26 ] The appellants contend that Imperial Oil was distinguishable because, while Imperial Oil was no longer the owner of the property, it was found responsible for the actual contamination of the environment. The appellants argue that they were not responsible for the contamination of the lands in question.

They contend that the R.M. was responsible and that the subsequent purchaser was responsible for the contamination of the lands and in any event, they are not financially able to comply with the order by reason that the R.M. by demanding possession of the property for failure to pay taxes drove them out of business. However, it is noteworthy that the Minister disagreed with that claim in the “reasons” of the EPO. [ 27 ] An abstract discussion of the polluter-pay principle does not assist the appellants in this appeal.

The E.M.P.A. must be applied according to its specific terms, not by way of resort to a general concept like “polluter pays”. This idea might be something which informs the

interpretation of the E.M.P.A. but it is not something that directly determines the liability of actors like Envirogun Ltd. and Mr. Kimery. In order to succeed with their appeal, they must demonstrate an error of law in the

interpretation or application of the specific terms of the E.M.P.A. This they have not done. E. Individual Responsibility [ 28 ] The appellant Kimery contends that he is, as a matter of law, not properly subject to the EPO and that the appellate court judge erred in finding otherwise. [ 29 ] The EPO states: WHEREAS the Minister is of the opinion that Clint Kimery and EnviroGun Ltd.: 1.

Has done, or is doing anything or carrying out any activity and specifically the improper storage of hazardous substances and waste dangerous goods at the EnviroGun Ltd. facility that may cause, is causing, or has caused an adverse effect as defined in The Environmental Management and Protection Act, 2002 . 2. Are a person responsible for a discharge as set out in

Section 2 (

w) of The Environmental Management and Protection Act, 2002 . [ 30 ] The appellate court judge in considering this matter stated: [34] The appellants’ claim that Clint Kimery is not personally liable is also faulty. The E.M.P.A. , in s. 47, allows the Minister to direct the EPO to any person. “Person” is not defined in the E.M.P.A. , although “person responsible for a discharge” is, at s. 2 (w). Under that sub-section, “person” includes, at ss. (ii), “every person … who has or had possession, charge, management or control of the substance … and … whose actions or omissions caused or contributed to the discharge”.

The definition of “owner” and “operator” under the Regulations speak to the person involved in the actual maintenance, operation, control or management of the storage facility. Accordingly, the E.M.P.A. and the Regulations do not limit liability to the owner of the property as submitted by the appellants. [35] Moreover, as the sole shareholder, director and officer of the appellant Envirogun Ltd., Mr. Kimery is clearly the operating mind behind the company. I am not satisfied that it was unreasonable, or incorrect, for the Minister to direct the EPO at Mr.

Kimery, personally. [ 31 ] The appellate court judge found that the E.M.P.A. and the Regulations under the E.M.P.A. did not limit liability to the owner of the property and that, in some situations, the officers of corporations could be liable under the E.M.P.A. committed by a corporation. [ 32 ] The EPO was directed to both Clint Kimery and to Envirogun Ltd.

It is noteworthy that both Envirogun Ltd. and Clint Kimery were advised that they “failed to meet the requirements of their approval to operate, had closed the hazardous waste storage facility without an approval, and have caused or are causing adverse effects at the site as a result of improper storage of hazardous waste” and stated that both Envirogun Ltd. and Mr. Kimery were responsible for a discharge. Mr. Kimery now argues that the appellate court judge erred in finding that the EPO applied to him in his personal capacity.

He argues that there is nothing in the record to support the finding of the appellate judge that the appellant Kimery is the sole shareholder and directing mind of Envirogun.

[ 33 ] In my view, the critical point here is that the EPO is directed to both Mr. Kimery and his corporation and asserts that both he and Envirogun failed to meet the requirements of “ their approval to operate ... a hazardous waste storage facility.” This is important because the onus was on Mr. Kimery in the Court of Queen’s Bench (as it is in this Court) to demonstrate an error in that conclusion. However, by choosing not to respond to the Notice of Intention in a complete or timely way (or to even raise the issue of Mr.

Kimery’s personal liability), the appellants denied themselves the opportunity to create a record that they could use to take issue with the terms of the Order, including the terms of the Order which fixed Mr. Kimery personally with liability. In these circumstances, the finding of the appellate court judge was not unreasonable and this ground of appeal must also fail. We are thus able to uphold her decision on this point without having to specifically approve, or disapprove, of the particulars of her reading of the E.M.P.A. [ 34 ] The appeal is therefore denied with costs in this Court in the usual way.

DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of July, A.D. 2012. _____ ​​ “Vancise J.A.” _____________________ Vancise J.A. I concur. “Vancise J.A. for” Klebuc C.J.S. I concur. “Richards J.A.” Richards J.A.