Canada: BC Supreme Court Issues Major Award For Remediation Of Contaminated Site

The BC Supreme Court issued a key decision in the area of contaminated sites yesterday, awarding $4.75 million in "reasonably incurred" remediation costs to the plaintiff, JI Properties, Inc. ("JI Properties"). The award compensated JI Properties for money it spent remediating contamination on James Island, BC. This award is the largest of its kind to-date. The decision is potentially precedent-setting, contributing to the development of BC's contaminated sites law in a number of areas. The decision:

  • reiterates that "polluter pays" underpins the entire Environmental Management Act ("EMA") contaminated sites regime, by finding the defendant polluter responsible for paying all of the plaintiff's reasonably incurred remediation costs;
  • found the limitation period for cost recovery actions under the 1996 Limitation Act is six years and does not begin until all of the costs of remediation are incurred;
  • held that comfort letters issued to landowners by the Ministry of Environment prior to the introduction of the EMA are not the same as Certificates of Compliance under the EMA and do not protect a responsible person from liability for remediation costs; and
  • applied a broad, purposive approach to evaluating the reasonableness of remediation costs, and accepts that reliance on expert consultants is a strong indicia of reasonableness.

In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, JI Properties brought a cost recovery action to recover $5.25 million it incurred remediating contamination on James Island. JI Properties was the island's current owner, who discovered and remediated contamination on the island in 2004-2006.

The defendant was the island's historic polluter, having owned and/or operated explosives manufacturing and storage operations on James Island for at least 30 years.

After a five-week trial, the court awarded JI Properties $4.75 million for its reasonably incurred remediation costs. Key aspects of this decision are as follows:

Polluter Pays Underpins Regime

The court's decision is another in a series of cases in which the courts note that the "whole purpose of the EMA regime is to ensure that the person who pollutes the land pays for the cost of its restoration." In that regard, the court also held that the subsequent land-owners' motives for remediating the land are "largely irrelevant. So long as the remediation methodology and the associated costs are reasonable, the polluter can [be] held liable for those costs." In this case, the court held that JI Properties acted reasonably when it undertook the remediation necessary for it to achieve its development objectives on James Island.

The court did, however, leave open the possibility that in future cases landowners may bear some or all of the remediation costs if the remediation increases the utility or value of the property by an amount that exceeds the costs claimed for the remediation. This question remains to be resolved in a future case.

Deadline to Commence a Lawsuit (Limitation Period)

Limitation periods for cost recovery under the EMA have long been an open question. A limitation period is the time within which a party must commence a lawsuit or be barred from doing so. The court here provided considerable guidance on this issue.

First, the court held that JI Properties' claim was not time-barred because JI Properties continued to incur costs of remediation within two years of commencing its action. In the court's view, JI Properties' right to bring its cost recovery action did not begin until after it incurred all of its claimed costs of remediation. The court based this finding on the unique nature of the statutory cause of action under the EMA and the need to interpret legislation in a way that "should advance not hobble the integrity" of the legislation's regime, which allows for recovery of remediation costs from any "responsible person" absolutely and retroactively.

Second, the court held that, in any event, the appropriate limitation period for this action, which was governed by the 1996 Limitation Act, was six years, not two. Under that Act, there had been some question whether a cost recovery claim was an action "for damages in respect of injury to person or property...whether based on contract, tort or statutory duty", for which a two-year limitation period was prescribed, or if a cost recovery action was an action not otherwise prescribed and therefore governed by a six-year limitation period. The court found that a cost recovery action (1) is not based on contract, tort or statutory duty and (2) is not an action for damages. For those reasons, it held that cost recovery actions are governed by a six-year limitation period.

Ministry Comfort Letters Are Not Akin to "Certificates of Compliance" under the EMA

The court also rejected the defendant's argument that it was immunized from liability because it had remediated parts of James Island before selling it in the 1980s, and had obtained a comfort letter by the Ministry of Environment that recognized this fact.

The court concluded that comfort letters were not akin to Certificates of Compliance, which are statutory instruments available to persons who remediate contaminated sites in compliance with the EMA regime. Only the latter may protect a responsible person from future liability for contamination under the EMA.

Role of Environmental Consultants

The court also made a number of important comments about the reliance parties may place on their environmental consultants who guide the remediation work. The court held it was "entirely reasonable" for JI Properties to rely on its "highly qualified expert assist with the difficult technical issues and thereafter to follow that consultant's determinations and recommendations respecting the presence and remediation of contaminants." Although the use of a consultant does not "immunize" a landowner from appropriate criticisms about the remediation methodology or cost, the "the selection and use of an appropriately qualified expert is a factor which bestows reasonableness upon the ensuing approach to remediation and the costs associated with same."

This finding is significant because this case was a lengthy trial dominated by expert testimony criticizing the remediation work conducted by SEACOR, the plaintiff's environmental expert. This decision may, in the future, discourage a defendant from attempting to "chip away" at a cost recovery claim by retaining experts to criticize every remediation step taken by a plaintiff. The decision does so by taking a broad, purposive approach to reasonableness that does not nitpick every detail of a remediation.

Reasonable Remediation Costs

Lastly, the court concluded that most of JI Properties' claimed remediation expenses were "reasonable" and therefore properly part of the amount claimed in the case. The judge noted that JI Properties:

"is a sophisticated entity and had no motive for incurring costs that were not necessary nor for paying for work that was not carried out. As indicated, however, a discount to account for 'gray areas' in arithmetic and allocation is warranted to ensure fairness. A further discount is also appropriate on the same basis to reflect that the "remediation by detonation" approach, whether as a "safety measure" or otherwise, was misguided." (para. 180)

The court also noted the defendant ought to have provided a detailed forensic accounting in its attack of the remediation expenses to expose what it viewed as specific frailties in the plaintiff's claim. As a result, the court offered what it called a "rough justice" in terms of a fair discount on the total amount claimed to account for some "gray areas" in the plaintiff's accounting.

Given that only the defendant, not the plaintiff, had contributed to the contamination at issue, the court found that the defendant was fully liable for the reasonable remediation costs incurred by the plaintiff.

In the result, JI Properties recovered 90% of the amount it claimed, with an award of $4.75M dollars issued against the defendant. The defendant has 30 days to file an appeal of the decision.

Bull Housser & Tupper LLP ( Dan Bennett, Q.C., Jana McLean and Michael Manhas) represented the plaintiff JI Properties in this action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.