Canada (Environment) v. Custom Environmental Services Ltd.

Canada (Environment) v. Custom Environmental Services Ltd.
Court (s) Database
Federal Court Decisions
Date
2008-05-16
Neutral citation
2008 FC 615
File numbers
T-1150-07
Notes
Reported Decision
Decision Content
Date: 20080516
Docket: T-1150-07
Citation: 2008 FC 615
Ottawa, Ontario, May 16, 2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MINISTER OF THE ENVIRONMENT
Appellant
and
CUSTOM ENVIRONMENTAL SERVICES LTD.,
GAVIN SCOTT AND BRIAN WINTERS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] Custom Environmental Services Ltd. (CESL) was found, by a Chief Review Officer (CRO), to be exempt from the operation of the legislation that regulates the storage of PCB material. The Minister of the Environment (the Minister) asserts that the CRO’s conclusion is wrong and that the CRO erred by failing to interpret “storage” in a manner that achieves the objectives of the relevant legislation.
[2] On this statutory appeal, I conclude that the standard of review applicable to the decision of the CRO is that of correctness. Applying that standard, I determine that the CRO’s interpretation of the relevant statutory provisions is incorrect. Further, and in any event, the interpretation is unreasonable. Consequently, the appeal will be allowed and the determination of the CRO will be set aside.
Background
[3] CESL, an Alberta company, operates a hazardous waste management facility in southeast Edmonton. Its business operations include the collection and transfer of materials, for disposal, of all classes of hazardous wastes (including polychlorinated biphenyl (PCB) waste) and the processing of hazardous recyclables. It is authorized by Alberta Environment to be a broker of hazardous waste in Alberta. The authorization permits CESL to operate as a receiver, generator, or carrier of hazardous waste and specifically requires that CESL, as a hazardous waste carrier, “comply with other relevant legislation, for example: The Transportation of Dangerous Goods Control Act and Associated Regulations and the Occupational Health & Safety Act”. CESL has also been licenced to transport hazardous waste by the Province of British Columbia.
[4] At its premises in southeast Edmonton, CESL receives, among other things, PCB contaminated material. Typically, it recycles the uncontaminated components and disposes of the PCB contaminants by transporting them to a disposal site (normally Swan Hills, Alberta). CESL uses its own fleet of vehicles, or third-party carriers, to transport the material. CESL is in possession of PCB material from the time of receipt (from the consignor) until the time of transport (to the waste disposal facility). The duration of CESL’s possession of PCB material varies.
[5] The Storage of PCB Material Regulations, SOR/92-507 (the Storage Regulations), enacted under the Canadian Environmental Protection Act, S.C. 1999, c. 33 (CEPA), regulate the storage of PCB material. The Storage Regulations, among other things, require that specific information with respect to received and removed PCB material be recorded and reported to Environment Canada. CESL claims that because its operation is conducted under the Transportation of Dangerous Goods Act, 1992, c. 34 (TDGA) and the associated Transportation of Dangerous Goods Regulations, SOR/2001-286 (TDGR), it is exempt from the Storage Regulations. It relies on subsection 3(4) of the Storage Regulations which specifically states that the Storage Regulations “do not apply in respect of the handling, offering for transport or transporting of PCB material governed by the [TDGA]”.
[6] A dispute between Environment Canada and CESL regarding the applicability of the Storage Regulations has existed for some time. The record indicates that, on occasion, CESL reported to Environment Canada regarding PCB material entering its facility. CESL maintains that such reporting was voluntary. In the late 1990s, correspondence between CESL’s solicitors and the Department of Justice reveals divergent views regarding the propriety of the Storage Regulations’ application to a processing facility, such as CESL.
[7] At some point in the early 2000s, Environment Canada began a “PCB Inventory Reconciliation Program” aimed at updating and consolidating its records on the storage of PCB material. In response to inquiries arising out of this program, CESL reiterated its position that it fell within the subsection 3(4) exemption of the Storage Regulations. Environment Canada asked CESL to provide an inventory update by February of 2002. Meetings between CESL and Environment Canada were proposed and scheduled, but ultimately did not materialize. CESL submitted some information on “PCB activities”. Its information did not satisfy Environment Canada. It seems, from the record, that a stalemate ensued. By correspondence dated April 7, 2003, Environment Canada restated its position that the Storage Regulations applied to CESL. However, after re-stating its position, Environment Canada also stated that, because nearly a year had passed, it was “closing its file”. It informed CESL that it would “periodically request updates”.
[8] On May 5, 2005 (two years later), there was a fire at the CESL premises. CESL informed Environment Canada inspectors that while limited quantities of PCB material were involved in the fire, many of CESL’s records had been destroyed. Evidently, this event precipitated further correspondence and discussion regarding the applicability of the Storage Regulations to CESL’s operation.
[9] On June 6, 2006, an Environment Canada Enforcement Officer conducted an inspection at CESL. The officer noted two “C-containers” (shipping containers) containing PCB material. During the inspection, the manager of CESL informed the officer that CESL had shipped PCB material to the destruction facility “two to three weeks” earlier. Environment Canada’s last report from CESL regarding removal of PCB material was dated February of 2005. As of August 22, 2006, the Environment Canada record showed 3931 PCB items registered at the CESL facility with no record of these items having been moved. These “recorded” items were not on CESL’s premises at the time of the inspection.
[10] The Enforcement Officer determined that, although the quantities of PCB material at CESL during the inspection were insufficient to trigger the Storage Regulations, there was evidence that CESL, for quite some time, had not complied with the reporting requirements of the Storage Regulations. A departmental decision was taken to issue an Environmental Protection Compliance Order (EPCO) to CESL. As required by the provisions of the CEPA (ss. 237(1)), a notice of intent to issue the EPCO was delivered to CESL on November 20, 2006. CESL was provided an opportunity to make representations and did so on December 6, 2006.
[11] On December 8, 2006, Environment Canada issued an EPCO requiring CESL to comply with the Storage Regulations, specifically the recording (section 13) and reporting (paragraph 16(b)) requirements. The EPCO directs CESL to “submit on or by Wednesday 06 June, 2007, the written report(s) that contains the information required by the Regulations in regards to the removal of PCB material from the facility that will reconcile the 3931 items on the enclosed PCB inventory”. The “enclosed PCB inventory” consists of a list of items obtained from Environment Canada’s files, dating back to 2000. The evidence indicates that the “inventory” is a printout from Environment Canada’s database and does not represent the PCB material that was on site at the time of the June inspection.
[12] Pursuant to section 256 of the CEPA, CESL applied for review, by a Review Officer, of the EPCO. In accordance with section 257, a review was conducted. Following the review, in a decision dated May 18, 2007, the CRO cancelled the EPCO.
The Standard of Review
[13] The written submissions of the parties were filed before the Supreme Court of Canada released its reasons for judgment in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir). Prior to the hearing of this matter, counsel were notified that the Dunsmuir decision should be incorporated into their oral arguments regarding the standard of review. However, as counsel for the respondents put it, “Dunsmuir doesn’t change much”. The Minister, on the one hand, maintained the position that the applicable standard of review is correctness and that, in any event, the CRO’s determination is unreasonable. CSEL, on the other hand, steadfastly held to the view that although the appropriate standard of review is reasonableness, the CRO’s conclusion withstands review on a correctness standard. In other words, the parties reiterated the respective positions advanced in their written submissions.
[14] Dunsmuir directs a two-stage inquiry for determination of the applicable standard of review. First, I am to look to the jurisprudence in an effort to ascertain whether the deference warranted regarding the particular type of administrative decision in issue has been satisfactorily determined. If it has not, I must proceed to a standard of review analysis which entails an analysis of the “factors making it possible to identify the proper standard of review”. This analysis must be contextual and is dependent upon the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal (Dunsmuir at paras. 62-64).
[15] The enabling legislation in this matter was enacted in 1999. Its provisions have been squarely before the Court on only a handful of occasions. Counsel did not submit, and I have not identified, any authority where the Court has determined the appropriate standard of review regarding a decision of a Review Officer appointed pursuant to the CEPA. Consequently, while the existing jurisprudence is interesting and informative, it is not determinative with respect to the applicable standard of review.
[16] The facts in this matter are not in dispute. Neither side suggests error on the part of the CRO in this respect. It is the application of the legislative provisions to the undisputed facts that forms the subject of debate. On its face, it appears that the issue centres on a question of mixed fact and law. In accordance with Dunsmuir, such a question is presumptively reviewable for unreasonableness. However, the standard of review analysis leads me to conclude that the applicable standard of review, in the circumstances of this case, is correctness.
[17] There is no privative clause. To the contrary, section 269 of CEPA provides for a statutory right of appeal to the Federal Court. Section 270 provides that the appellant has the right to be heard on all questions of fact and law. This is a broad appeal provision and is indicative of Parliament’s intent that a decision taken under the legislation is to be subject to judicial oversight. It militates away from deference.
[18] Regarding the expertise of the decision-maker, section 243 of CEPA obliges the Minister to establish a “roster of review officers” from which one officer is to be appointed as CRO (subsection 244(1)). The CRO performs administrative functions, assigns review officers to conduct hearings and, in certain cases (such as this one), conducts review hearings (subsection 244(2)). In the absence of the CRO, any review officer may act (subsection 244(3)). Appointments are for a term of three years and may be renewed (section 245, subsections (1) and (2)). Appointed individuals must be knowledgeable regarding the Canadian environment, environmental and human health, administrative law or traditional aboriginal ecological knowledge (section 247, my emphasis). The appointments are not full-time since review officers “shall not engage” in employment that is inconsistent with their function under the CEPA (section 248).
[19] Sections 260 and 261 of the CEPA equip the review officer with enforceable powers to summons witnesses and documents. Section 263 permits the review officer to confirm or cancel an EPCO, to amend or suspend a term or condition, to add or delete a term or condition, and to extend the duration of the EPCO for a period of not more than 180 days. The exercise of these powers is prohibited in the event of risk to: impairment of the quality of the environment; injury or damage to any property or to any plant or animal life; or danger to the health or safety of any person (section 265). A decision must be rendered within five days of the review (of the EPCO) and written reasons must be provided within ten days (section 266). However, a review officer (at any time before a notice of appeal is filed), upon providing reasonable notice and allowing a reasonable opportunity for oral submissions, may modify a decision.
[20] A request for review does not suspend the operation of an EPCO although a review officer, upon application, may suspend operation (if appropriate) and impose reasonable conditions that are consistent with the protection of the environment and public safety (section 258).
[21] These noted provisions impact on the characterization of the CRO’s expertise. The statute requires some degree of knowledge, yet does not mandate expertise. The CRO in this case was required to interpret the Storage Regulations as well as provisions of the TGDA and the TDGR. Although the Storage Regulations were enacted pursuant to the CRO’s enabling or “home” statute, the CRO was not called upon to interpret only the enabling legislation. Rather, it was necessary to interpret the home statute, its regulations, and other inter-related acts and regulations. Notably, there are 46 associated regulations passed pursuant to CEPA alone.
[22] There is no indication that the CRO has acquired expertise analogous to that of institutional tribunals (such as labour) where a body of jurisprudence is established. Nor is there any suggestion that the CRO is specifically knowledgeable with respect to dangerous goods, the transportation or storage of dangerous goods, or industry standards in these areas. General environmental knowledge does not equate to expertise. Indeed, given the volume of the associated regulations, it is difficult to imagine that any Reviewing Officer could develop specific expertise in all areas. This factor does not favour deference.
[23] The CEPA’s purpose is to regulate the behaviour of entities in order to promote public safety, protect the environment and contribute to sustainable development through pollution protection. To that end, section 235 of CEPA allows an enforcement officer to issue an EPCO if the officer has reasonable grounds to believe that any provision of CEPA or its regulations has been contravened. The alleged contravention at issue here is with respect to the reporting and recording requirements mandated by the Storage Regulations. These provisions regulate the storage of specific quantities of PCB material that is “not being used daily”.
[24] The TDGA promotes public safety in the transportation of dangerous goods and governs the transportation of PCB material. This statute and its associated regulations provide definitions of key terms such as “handling”, “in transport” and “offer for transport”. The Acts (CEPA and TDGA) work together to ensure that the chain of custody, of PCB material over the course of its existence, is tracked. Because the statutes are concerned with the protection of the public, their purpose may point toward deference: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 31.
[25] The nature of the question appears to be one of mixed fact and law because it involves the application of a statutory provision to a particular factual situation. If this is so, deference may be owed. That is, Dunsmuir may dictate that the appropriate standard of review is reasonableness. However, in my view, the question before the CRO is a pure question of law. The factual context is not in dispute, nor has it ever been. The CRO’s task is strictly one of statutory interpretation. Moreover, in the context in which it arises, it is a question of general law that is of central importance to the proper functioning of the scheme as a whole and is outside the CRO’s “knowledgeable” area. If it is a mixed question, the question of law is easily extricated. This factor yields little deference.
[26] I conclude, in balancing the factors, that the applicable standard of review is that of correctness. I note that jurisprudence, in the environmental law context, points to a similar result. In West Vancouver (District) v. British Columbia (Ministry of Transportation), [2005] F.C.J. No. 727, Mr. Justice Lemieux examined a decision of federal “Responsibility Authorities” under the Canadian Environmental Assessment Act. The “Responsibility Authorities” determined that a highway project would not cause significant adverse environmental impact, without consulting the public, a process that the applicant claimed was mandatory under the Act. Mr. Justice Lemieux adopted the reasoning of Mr. Justice Rothstein, then of the Federal Court of Appeal, in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.). Justice Rothstein, at paragraph 10, held that the standard of review was one of correctness. Additionally, and again in relation to the Canadian Environmental Assessment Act, the Federal Court of Appeal in Inter-Church Uranium Committee Educational Co-operative v. Canada (Atomic Energy Control Board), 2004 FCA 218, found the applicable standard of review to be correctness on a question of statutory interpretation of the Act.
[27] In Dunsmuir, the Supreme Court noted that the nature of the question at issue was one of pure law. The Court considered whether the correctness standard would apply, despite the presence of an administrative regime (analogous to the labour context) and a privative clause. It concluded that the applicable standard of review was reasonableness. In this case, there is a question of law without a privative clause. This is not a judicial review. The statute provides a broad statutory right of appeal. The decision-maker is not an institutional-type tribunal. Although the CRO must have some knowledge, there is no requirement or indication of specific expertise. In my view, these factors distinguish this matter from Dunsmuir. Moreover, the noted factors connote a standard of review of correctness. However, if I am wrong in this respect, I will also have regard to the reasonableness standard.
The Undisputed Facts
[28] CESL recycles contaminated material. Incoming material arrives at CESL’s premises in varying sizes, from very small to very large (such as transformers). The material contains PCBs in various volumes. CESL deals in large quantities of PCB material.
[29] After receiving PCB material, CESL sorts it, cleans it, carries out processing (depending on the material) and packages it for transport to the disposal site. Prior to the sorting and cleaning processes, the material may sit on site for a period of time. This time-frame depends largely on staff availability and workloads. Upon completion of the cleaning and sorting processes, CESL places the PCB material in containers where it remains until it is shipped to the disposal site for destruction.
[30] The PCB material in the containers remains on site until CSEL accumulates a sufficient quantity for shipment. Although the length of time to acquire such a load varies, on average, it is four to six weeks.
[31] The rationale underlying the need to accumulate a sufficient load of PCB material for shipment is that it is not economical to send several small shipments. Consequently, staffing and workload impact on the length of time required for the acquisition of enough material for a load. Additional factors affecting the duration that the PCB material remains on site include the availability of the disposal site (its schedule) and, from time to time, waiting for lab-analysis test results.
[32] In summary, PCB material is kept at CESL’s premises, on average, from four to six weeks. However, depending on the circumstances, the duration ranges from a few days to a much longer period.
The Decision
[33] By decision dated May 23, 2007, the CRO determined that CESL’s operations involving PCB material did not fall within the scope of the Storage Regulations. Therefore, the EPCO should be cancelled. The decision was based on the following key findings:
• The PCBs on CESL’s premises are either waiting to be separated from recyclable material, being separated, or being collected into an appropriately sized shipment that will be sent to a destruction facility when the facility’s schedule allows the shipment to proceed. There is no intention to store as such, except for the collection into an appropriate shipment;
• Neither the concept of “storage” under the Regulations nor the “handling in the course of transportation” under the [TDGA] covers all of CESL’s activities unequivocally;
• When the PCB materials are consolidated in anticipation of shipment – this part of the journey may indeed be considered to be packing and handling in the course of transport and covered by the TDGA (and exempted from the Regulations);
• Yet, the term “handling” cannot be stretched to cover the intervention of the physical and chemical separation processes applied to the PCB material once it arrives at CESL’s premises. Most of the PCB material received by CESL is subject to these processes, which interrupt the shipment in a significant fashion. (CESL’s creation of new shipping documents is not dispositive, but it is consistent with the conclusion that the shipment is interrupted);
• During these separation processes, the PCB material can be considered “in use” thereby removing the application of the Storage Regulations as these Regulations only apply to PCBs that are not being used. Although the PCB materials are not being put to their original industrial use, they are being actively subjected to a physical or chemical process of separation;
• CESL does not store PCB material in the sense of warehousing it for any appreciable period of time; the intent with respect to the PCB material on site is either to process it or to ship it for destruction. Any delay in shipment that takes place is purely incidental to this overall process.
It is from this decision that the Minister appeals.
Statutory Provisions
[34] The relevant statutory provisions are attached to these reasons as Schedule “A”. For ease of reference, subsection 3(4) of the Storage Regulations, the definition of “handling” in section 2 of the TDGA and the definitions of “in transport” and “offer for transport” in section 1.4 of the TPGR are reproduced below.
Storage of PCB Material Regulations,
SOR/92-507
3. (4) These Regulations do not apply in respect of the handling, offering for transport or transporting of PCB material governed by the Transportation of Dangerous Goods Act.
Transportation of Dangerous Goods Act, 1992
S.C. 1992, c. 34
2. In this Act,
…
“handling” means loading, unloading, packing or unpacking dangerous goods in a means of containment for the purposes of, in the course of or following transportation and includes storing them in the course of transportation;
…
Transportation of Dangerous Goods Regulations,
SOR/2001-286
…
1.4 Definitions
…
“in transport” means that a person has possession of dangerous goods for the purposes of transportation or for the purposes of storing them in the course of transportation.
“offer for transport” means, for dangerous goods not in transport, to select or allow the selection of a carrier to transport the dangerous goods, to prepare or allow the preparation of the dangerous goods so that a carrier can take possession of them for transport or to allow a carrier to take possession of the dangerous goods for transport.
…
Règlement sur le stockage des matériels contenant des BPC,
DORS/92-507
3. (4) Le présent règlement ne s’applique pas à la manutention, à l’offre de transport ou au transport de matériels contenant des BPC régis par la Loi sur le transport des marchandises dangereuses.
Loi de 1992 sur le transport des marchandises dangereuses
L.C. 1992, ch. 34
2. Les définitions qui suivent s’appliquent à la présente loi.
[…]
« manutention » Toute opération de chargement, de déchargement, d’emballage ou de déballage de marchandises dangereuses effectuée en vue de leur transport, au cours de celui-ci ou par après. Les opérations d’entreposage effectuées au cours du transport sont incluses dans la présente définition.
[…]
Règlement sur le transport des marchandises dangereuses,
DORS/2001-286
1.4 Definitions
[…]
« en transport » Qualifie des marchandises dangereuses dont une personne a la possession en vue de leur transport ou de leur entreposage pendant leur transport.
« demande de transport » En ce qui concerne des marchandises dangereuses qui ne sont pas en transport, le fait de choisir un transporteur ou d’en permettre le choix dans le but de les transporter, le fait de les préparer ou d’en permettre la préparation pour qu’un transporteur en prenne possession aux fins du transport ou le fait de permettre à un transporteur d’en prendre possession aux fins du transport.
[…]
Issue
[35] The sole issue is whether the CRO correctly interpreted the legislative provisions.
Overview of the Arguments
[36] The Minister asserts that the purpose of the Storage Regulations is to achieve adequate control and safe storage of PCB material, a dangerous substance. The intent is to alert Environment Canada regarding “when and where PCB is located” to enable Environment Canada to “monitor, track and control” the location of the substance. Both the Storage Regulations and the TDGA deal with tracking the chain of custody of PCB material over the course of its existence.
[37] The Minister’s stated concern relates to the time between CESL “shipping in” and “shipping out” the PCB material. That is, the time period during which the PCB material, according to the Minister, is “stored” on site. During this time, the PCB material is not in “use daily”. Therefore, the Storage Regulations should apply.
[38] Further, the Minister submits that although the Storage Regulations exempt the handling, offering for transport or transporting of PCB material governed by the TDGA, not all of CESL’s activities are covered by the exemption. The CRO erred in concluding that CESL’s activities amounted to packing and handling of PCB material in the course of transportation within the meaning of the TDGA. She also erred in finding that “storage” comprises an element of intent.
[39] CESL maintains that if the TDGA applies, the Storage Regulations do not. The TDGA involves an industry that has as its object the disposal of hazardous material, specifically PCB material. Achievement of the objective begins with the consignor and ends at the disposal site. CESL is not the destination of the PCB material. Rather, it is a stopping point on the journey. The power to enact regulations under subsection 34(2) of the CEPA is restricted. There is no power to regulate an aspect of the substance that is regulated by or under another Act.
[40] CESL claims that the PCB material located on its premises is not “stored”; it is in the course of transportation. CESL is not a commercial storage facility nor does it charge any entity for storage of PCB material on its site. While several weeks or months may pass when the PCB material remains at CESL (a number of factors contribute to the time frame), CESL’s intent is not to store PCB material, but to transport it to its final destination for destruction. This is the nature of its business.
[41] Relying on subsection 3(4) of the Storage Regulations, CESL contends that its activities are exempt because the provision states that the regulations do not apply to the handling, offering for transport or transporting of PCB material governed by the TDGA. All of CESL’s activities with respect to the PCB material are covered by some combination of these three categories. CESL submits that it has always functioned under, and in compliance with, the TDGA and its associated regulations.
Analysis
[42] Distilled, the CRO determined that CESL does not store PCB material in the sense of warehousing. The intent is to process it/ship it for destruction. During the separation processes, the material can be considered “in use”. The phase after processing may be considered packing and handling in the course of transport. Delay in shipment is purely incidental to the overall process.
[43] In my view, the CRO’s interpretation of the legislative provisions is incorrect. Further, it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: Dunsmuir, para. 47.
[44] The Supreme Court of Canada has repeatedly articulated the proper approach to statutory interpretation. In R. v. Jarvis, [2002] 3 S.C.R. 757, at paragraph 77, the Court directed that “one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute”. The stated principle was supported by specific reference to the Interpretation Act R.S. I-23; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re.), [1998] 1 S.C.R. 27; R. v. Gladue, [1999] 1 S.C.R. 688; E.A. Driedger, Construction of Statutes (2nd ed. 1983) at p. 87. The approach was confirmed again in Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539. This search for parliamentary intent constitutes an exercise in ascertaining, in accordance with the noted principle, what Parliament set out to accomplish.
[45] I stated earlier at paragraph 22 of these reasons that the CEPA is regulatory legislation. Its purpose is to promote public safety, to regulate the behaviour of entities in order to protect the environment and contribute to sustainable development through pollution protection. The Storage Regulations were enacted following a fire at a storage warehouse in Basile-le-Grand, Quebec where, unknown to Environment Canada, PCB material had been stored for many years. The intent of the regulations is to monitor any high concentration or amount of PCB material being stored at any given location. The Storage Regulations prescribe specific requirements for persons who own or manage property on which PCB material is located, specifically with respect to safe storage, fire protection and emergency procedures. Section 2 states that a “PCB storage site” means a site referred to in section 4 that is used to store PCB material. Section 3 indicates that the regulations apply to certain quantities of PCB liquids, solids, substances, or equipment that are not being used daily. Mandatory storage, reporting and recording requirements are set out in sections 4, 9, 13 and paragraph 16(b) in relation to quantities of PCB material that are subject to the Storage Regulations.
[46] Section 4 requires that “every person who owns, controls or possesses PCB material, or who owns or manages a property in or on which PCB material is located shall store the PCB material in a specific manner. Section 9 further details the storage requirements that “every owner or manager of a PCB storage site” must adhere to, depending upon the type of PCB material involved. Under section 13, every owner or manager of a PCB storage site shall maintain, and have available for review by an enforcement officer, records on PCB materials received and removed from the storage site. The owner or manager of a PCB storage site shall submit a copy of this information to the Minister pursuant to paragraph 16(b).
[47] The purpose of the TDGA is to promote public safety in the transportation of dangerous goods. The Act regulates the manner in which dangerous goods are imported, transported and labelled (both for and during transport). It provides for the designation of inspectors to foster compliance with the Act. Its schedule delineates nine classes of dangerous goods. The TDGA is relatively brief; it comprises some 22 pages. The TDGR (the associated regulations) are complex and lengthy, comprising some 722 pages. The TDGR are intended to incorporate all possible situations in transport, whatever the mode, for millions of chemical compounds.
[48] In totality, the TDGA’s application is not confined to dangerous goods when they are actually “in transport”. It also applies to the materials immediately prior to and after transport as well as to any storage that is necessary to transport them.
[49] The CRO properly recognized that CEPA, TDGA and their respective associated regulations are aimed at protecting the public welfare and should be given a broad and liberal interpretation. Additionally, the CRO noted that the legislative enactments are intended to function in harmony with one another.
[50] It is not disputed that when PCB material is en route to CESL or when it is en route from CESL to the disposal facility, it is being transported or is “in transport” and thus governed by the TDGA. It is the intervening period, between the arrival and the departure (the shipping in and shipping out) of the PCB material that is the issue. More specifically, the question is: does the manner in which CESL deals with the PCB material during this intervening period fall within the scope of subsection 3(4) of CEPA. I should note that the Minister acknowledges that when the material is being packed up for transport (for example, 24-48 hours before transport) the period comes within the exemption.
[51] The CRO reasoned that the interpretation of the word “storage” and the meaning of the language of subsection 3(4) of CEPA are pivotal. I agree.
[52] In relation to “storage”, the CRO requested written submissions directed to the meaning of the word and, in particular, whether “intent” to store is a prerequisite element. Although the CRO did not definitively determine that intent was a condition precedent, she did conclusively determine, for various reasons that need not be enumerated, that CESL did not intend to store PCB material on its premises.
[53] The CRO’s analysis and conclusion are troublesome. Moreover, the interpretation is neither correct, nor reasonable. To return to the principle articulated earlier, the words of a provision are to be read in context, according to their grammatical and ordinary sense, harmoniously with the scheme and object of the statute. There is no need to revert to dictionary definitions in this case. The meaning of the word “store” is readily apparent from its ordinary meaning and the manner in which it is used in the context of the legislative provisions. To reiterate, section 2 of the Storage Regulations defines “PCB storage site” as a site referred to in section 4 that is used to store PCB material”. Section 4 requires that “every person who owns, controls or possesses PCB material, or who owns or manages a property in or on which PCB material is located” shall store the PCB material in a specific manner.
[54] The word “store” is no vaguer than the word “keep”. Put another way, the word relates merely to the manner in which the PCB material must be kept or “stored”. The regulations dictate the manner in which anyone referred to in section 4 must store (or keep) the PCB material.
[55] But for the exemption in subsection 3(4) of the Storage Regulations, in my view, it is beyond dispute that the legislated requirements would apply to the activities of CESL. There is no question about the quantity of PCB material that arrives at CESL’s premises. Equally, there is no doubt that CESL would be considered a “PCB Storage Site” as contemplated by sections 2 and 4 noted above. However, subsection 3(4) exempts PCB activities covered by the TDGA. I will return to subsection 3(4) shortly.
[56] As for CESL’s submission that the PCB material is not destined (or intended) to remain indefinitely on CESL property, I agree with the Minister that the Storage Regulations do not require that storage be for any particular length of time or for any particular purpose. That is, the Storage Regulations do not apply only to long term or permanent PCB storage. I note that, even in the criminal context, there is no requirement of long-term or permanent storage in order to constitute “storage” within the meaning of subsection 86(1) of the Criminal Code: R. v. Carlos, [2002] 2 S.C.R. 411.
[57] The provisions of the Storage Regulations do not contemplate intent. Consequently, whether CESL intends to function as a commercial storage facility or intends to “store PCB material for long periods of time” is of no moment. In the course of its business, PCB material remains on CESL’s premises for weeks, or months. Whether CESL is keeping (or storing) the material for destruction, for later transportation, or for permanent storage, does not change the fact that, during the intervening period, the material is being stored. This result is the same irrespective of: “intent”; the fact that CESL does not operate as a warehouse; or, the fact that CESL is not compensated for the storage.
[58] What then is to be said of subsection 3(4) of the Storage Regulations? It states that these Regulations will not apply in respect of “the handling, offering for transport or transporting of PCB material governed by the [TDGA]”. The point to be made here is, to escape the application of the Storage Regulations, CESL must demonstrate that its operations fall within the meaning of at least one of the “activities” referred to in subsection 3(4). If CESL fails in this respect, compliance with the Storage Regulations is obligatory.
[59] For ease of reference, the TDGA provides that “handling” means loading, unloading, packing or unpacking dangerous goods in a means of containment for the purposes of, in the course of or following transportation and includes storing them in the course of transportation. “Offering for transport” means, for dangerous goods not in transport, to select or allow the selection of a carrier to transport the dangerous goods, to prepare or allow the preparation of the dangerous goods so that a carrier can take possession of them for transport or to allow a carrier to take possession of the dangerous goods for transport.
[60] The “transporting of PCB material governed by the [TDGA]” is also exempted from the Storage Regulations. “Transporting” is not defined in either the TDGA or the TDGR. The TDGR state that “in transport” means a person has possession of dangerous goods for the purpose of transportation or for the purpose of storing them in the course of transportation.
[61] The act of “unloading” PCB material from vehicles on CESL’s premises and, similarly, the “loading” of PCB material onto vehicles in order to ship it from CESL’s premises clearly will be captured by the definition of “handling”. Two remaining segments of CESL’s activities during the intervening period require examination: (1) the process of sorting/cleansing/separating these materials and (2) the accumulation of PCB material until sufficient quantity is acquired to make it economically feasible to ship it.
The sorting/cleansing/separating processes
[62] The CRO opined that “the term ‘handling’ cannot be stretched to cover the intervention of the physical and chemical separation processes applied to the PCB materials once they arrive at CESL’s premises.” The CRO found that, during these processes, the PCB material was “in use” and was not subject to the Storage Regulations (because the Storage Regulations apply only to PCB materials not in use). This conclusion is neither correct nor reasonable. Moreover