BC’s most important contaminated sites decision is being appealed, and representatives of the public interest want a say. Surprisingly, the Court of Appeal has granted standing to an NGO as well as the Attorney General, both to argue for a broader interpretation of BC’s Environmental Management Act.
In Gehring v. Chevron Canada Limited, the owner of a former gas station sued the previous owners and operators, as well as the gasoline supplier, for damages due to the site’s contamination. Such cases are, unfortunately, very common.
The site had been a gas station from 1949 to 1978. Those held liable for its contamination were:
- the current owners (since 1992): 25% of the remediation costs;
- the gasoline station operators from 1963 to 1978: 50%, even though they caused about 66% of the contamination;
- the owners 1978 to 1992, who removed the tanks, never operated the station, but never investigated the contamination: 25%.
The gasoline supplier was not held liable; nor was the director of a former gasoline station operator, now defunct. The current owners have appealed, and the Court of Appeal has now allowed two different representatives of the “public interest” standing to participate in the appeal.
One is the Attorney General of British Columbia. It is common, and expected, for the Attorney General to represent the public interest in the interpretation of statutes, and it used to be that no one else could do so. But it was unusual for the Court of Appeal to also award standing to Canadian EarthCare Society, to make a similar argument, namely that Chevron should have been held liable for the contamination. This was a significant acknowledgement by the court that the Attorney General is no longer a sufficient voice for the public interest in such cases, and raises the stakes for all defendants in major contaminated sites litigation.