An Alberta case, Wainwright v. GM Pearson, has reinforced the duties of care owed by waste generators and handlers to everyone down the chain, including those who ultimately dispose of its waste.
This case involved drums of lacquer dust, characterized by the generators as solid, non-hazardous but flammable, and sent from the US to Canada for incineration. The dust passed through three brokers to a municipal waste incinerator, where it caused a substantial fire. Liability for the fire was ultimately placed on the two Canadian waste brokers.
The generator escaped liability, because it had selected a specialized waste broker, accurately characterized the waste and clearly communicated that characterization:
- The dangerous nature of the furniture waste created a relationship [for the generator] with all of the participants in the waste disposal industry…including all handlers, transporters, brokers, inspectors, storage facilities and disposers… [t]here was a legal obligation on the generator to fully understand the nature of the waste being sent for disposal and to fully and frankly disclose the nature of the waste and warn of its dangers…
- [The generator must] communicate to the specialized waste broker, though a variety of means, complete and accurate information about the nature and risks related to the proposed waste. This information had to be sufficient to enable the recipient… to handle the waste safely and to comply with all applicable regulatory requirements….
- [The generator met] this standard [because it]…
- …selected a competent agent with special knowledge of the waste disposal industry…
- … had a complete and current understanding of the …waste…
- …the waste profile sheets … reflected full and accurate information….and were sent to and received by [the Canadian broker]
- … directed its agent to dispose of the …waste at …. a suitable facility….
- …labelled the drums…. with flammable solid stickers
Having provided all this information to its broker, the generator had met its duty of care. At that point, its duty to all subsequent handlers devolved to [the broker] to pass on the same information to the next waste industry participant.
Unfortunately, a “notoriously disorganized” employee failed to do just that. The flammable lacquer dust was labelled non-hazardous “sawdust”; the waste profiles were not forwarded to the next broker and the result was a million-dollar fire. Fortunately, no one was hurt.