B.C. Court Awards Remediation Costs Before They Are Incurred

by Blake, Cassels & Graydon LLP
Contact
The recent decision of the British Columbia Supreme Court (Court) in Dolinsky v. Wingfield may allow those who have to clean up contamination on their lands to obtain those costs from the responsible parties before actually doing the work. This approach under the Environment Management Act (EMA) is different from previous decisions and practice, where money had to be spent first and then recovered from those responsible. Given the significant costs often associated with remediation, this could provide a better option for those facing cleanup and its costs, but could also place an earlier potential burden on those facing these lawsuits.
BACKGROUND
Gina Dolinsky found oil contamination at her house and after protracted investigations, environmental consultants identified the source as an old, underground oil tank located on her neighbour’s property. Some of the contamination was remediated, but more was required, which the consultant prepared a plan for, together with the estimated costs and a 50-per cent contingency. Ms. Dolinsky did not complete the remaining work, but rather commenced a legal action against those responsible to recover the money already spent, along with the estimated costs to complete the remediation.
COURT AWARDS FUTURE COSTS
The EMA casts a broad net on those considered responsible to remediate contamination and includes those who have an interest in, or control over, the lands. In this case, it also included a person who was not the registered owner, but who was shown to have controlled contractors on the property. The EMA allows a person who has incurred remediation costs to recover those “reasonably incurred costs” from responsible persons. In the past, courts have interpreted the cost recovery provisions as requiring that the remediation costs be incurred first, before a court can make an order. In this case though, the Court said that the EMA only requires “some costs of remediation” to be incurred before an award can be made for future costs. Given that the consultant had set out the scope of the remaining remediation with a cost estimate, the Court ordered those responsible to pay to Ms. Dolinsky the estimated future remediation costs, including the contingency.
The Court based its decision on the wording in the EMA that those responsible are to indemnify for remediation costs. The Court ordered the estimated costs to be paid in advance and held in trust by Ms. Dolinsky’s lawyer on her undertaking not to release the funds except upon proof that the costs were actually incurred and subject to an analysis that they were reasonable. Any money not spent was to be returned to the responsible persons. The Court said that this approach was preferable to awarding a specific amount at the time of trial, which could result in a windfall for either of the parties, depending on what the actual cost was.
REASONABLENESS OF FUTURE COSTS
The Court said that if the property was remediated by an appropriately qualified environmental remediation specialist in accordance with the usual standards, the remediation costs would generally be assumed to be reasonable.
IMPLICATIONS
This Court’s approach will likely encourage those who have incurred some remediation costs, which includes any investigation and consultant costs, to seek an order from the courts for the full cost of remediation, without first incurring all of those costs. For those who are the victims of contamination, this may alleviate some of the significant financial burden in carrying out remediation. But for those who are responsible persons under the EMA, it means that there may be a more aggressive pursuit of legal actions to fund the remediation.
As a practical matter, this means that those who seek such court orders will require an appropriately qualified specialist to investigate and delineate the contamination and to prepare a remediation plan with a defensible cost estimate. Those receiving such an order will want to have their own specialists review and critique any remediation plan and estimate and monitor the remediation and review the costs incurred to ensure that they are all reasonable and recoverable.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Blake, Cassels & Graydon LLP | Attorney Advertising

Written by:

Blake, Cassels & Graydon LLP
Contact
more
less

Blake, Cassels & Graydon LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.