Canada: Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 23, And Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCSC 687

Last Updated: March 18 2013
Article by McCarthy Tétrault's Mining Practice Group

Most Read Contributor in Canada, September 2018

Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 23 (CanLII)
Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCSC 687 (CanLII)

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.

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