These two decisions involve the consideration of a claim for
contributory negligence by a handler of hazardous waste shipped
from a mine in southern British Columbia owned by Copper Mountain
Mining Corporation (Copper Mountain).
The facts of the case are briefly as follows. The plaintiff,
Enviro West Inc. (Enviro West), a waste oil collection firm, was
retained by Copper Mountain and two electrical contractors,
Boundary Electric (1985) Ltd. (Boundary Electric) and a numbered
company doing business as "Canyon Electric" (Canyon
Electric), to remove waste oil from an old transformer at Copper
Mountain's mine site. The oil contained high concentrations of
polychlorinated biphenyls (PCBs) in excess of what Enviro West was
authorized to transport. Enviro West pumped the waste oil into one
of its trucks and mixed it with waste oil from other sources and
ultimately pumped the oil into a large storage tank at its Kelowna
facility, thereby contaminating the truck, the Kelowna waste oil
tank and all of the associated pumps and piping with unacceptable
levels of PCBs. Upon learning what had happened, the environmental
protection agency required Enviro West to clean up the
PCB-contaminated material at a cost of approximately $650,000.
Enviro West then sued the parties that had retained it to
dispose of the oil and was successful in obtaining a judgement in
excess of $650,000 against the defendants, apportioned as follows:
60% to Copper Mountain and its parent company, 20% to Boundary
Electric and 20% to Canyon Electric. Enviro West's claims were
framed as a claim in negligence against the defendants for failing
to provide Enviro West with detailed information about the PCB
concentrations in the waste oil. The trial judge dismissed the
defendants' claims of contributory negligence against Enviro
West despite significant evidence that Enviro West had been advised
that the oil contained PCBs (see Enviro West Inc. v. Copper
Mountain Mining Corporation). In the trial judge's
decision, she focussed on the need of the generators (the
defendants) to make sure that the handler of the waste was made
aware of the high concentrations of PCB in the waste oil.
The British Columbia Court of Appeal (BCCA) overturned the
dismissal of the defendants' claims for contributory negligence
against Enviro West and ordered that the matter of Enviro
West's contributory negligence be referred back to the trial
judge for reconsideration. The BCCA found that the trial
judge's original decision had been too focussed on the fact
that the truck driver who picked up the waste was ill-equipped to
understand the significance of what he was told about the waste oil
and ill-equipped to do anything about it. According to the BCCA, by
focussing on the truck driver, the trial judge had lost sight of
the responsibility of Enviro West's management to ensure that
it had systems in place to deal with PCB-laden oil and to ensure
that its employees, including the truck driver, had adequate
training to understand and deal with the significance of the
presence of PCB in the oil.
Upon reconsideration of the claim for contributory negligence,
the trial judge ultimately apportioned liability under the British
Columbia Negligence Act as follows: 37.5% against the
plaintiff, Enviro West, 37.5% against Copper Mountain, 12.5%
against Boundary Electric and 12.5% against Canyon Electric.
This result is a more balanced allocation of responsibility
between the parties in the chain of custody of the hazardous waste.
It places responsibility on each person in the chain, so as to
achieve the societal objective of handling hazardous waste
responsibly by all that come in contact with it, from generation
through to disposal.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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