[1] THE COURT: The petitioner is a Crown corporation. It seeks to quash under the Judicial Review Procedure Act a ruling of The Environmental Appeal Board which overturned a decision of the Deputy Director of Waste Management declaring the petitioner to not be a "person responsible" for remediation at a certain contaminated site under s. 26.5 of the Waste Management Act.

[2] The Deputy Director's decision was based on interpretation of a phrase in the Power Measures Act passed by the Legislature of this province in 1965. The phrase relates to the assumption by the petitioner of the obligations of the British Columbia Electric Company Limited. The petitioner says that the Deputy Director was correct in his decision and the Board erred in law in its interpretation of the statutory provision.

[3] The Legislature created the petitioner by statute assented to on March 20, 1964. That statute, the British Columbia Hydro and Power Authority Act, empowered the petitioner in s. 14.2(c) to amalgamate "in any manner with ... any corporation, firm or person." On August 20, 1965, the petitioner signed an agreement to amalgamate with British Columbia Electric Company and British Columbia Power Commission. Subsequently, the Legislature enacted the Power Measures Act ratifying the amalgamation agreement. That statute incorporated the amalgamation agreement as a schedule. Therefore, the agreement became part of the statute.

[4] Clause 1(c) of the agreement reads as follows:

(1)(c) The Authority shall be seized of, possess and hold all the properties, assets, undertakings, contracts, powers, rights, privileges, immunities, concessions and franchises, whether conferred or imposed by statute or otherwise and ... shall be liable for all duties, liabilities and obligations, whether conferred or imposed by statute or otherwise of each of the authority, the Company and the Commission immediately before the amalgamation.

Of course, "Authority" refers to the petitioner and "Company" refers to B.C. Electric.

[5] The next clause makes the amalgamation effective at 5:00 p.m. on August 20, 1965.

[6] It has been determined that certain property near the Fraser River on Oak Street in Vancouver has become contaminated as a result of the leakage or deposit of coal tar on the property. Many years ago the property was the site of a shingle mill which used the coal tar product. The petitioner has not been responsible for the placement of the coal tar; however, one of its predecessors, B.C. Electric, manufactured the product and delivered it to the site for some years before the amalgamation, either directly or through an agent or partner.

[7] The intent of the Waste Management Act is to make polluters responsible for the cleanup of environmental contamination. To that end, s. 26.5 imposes remedial obligations on a number of types of persons, including previous owners or operators and persons who transported or caused to be transported to the site a substance proven to have been the cause of contamination. I understand that what is being litigated under the statute apart from the issue of law now before the court is the allegation that B.C. Electric, before the date of its amalgamation with the petitioner, transported or caused to be transported coal tar to the site in question.

[8] If B.C. Electric were still in existence as a separate legal person, it would have been subject to being found a responsible person under s. 26.5 of the Waste Management Act, as have several other interested persons been found and who have appeared and argued against this petition. Those other interested persons say that the petitioner assumed B.C. Electric's "duties, liabilities and obligations" under the amalgamation agreement and its ratifying statute. The Environmental Appeal Board so found. The petitioner says that finding is wrong in law because of the words "immediately before the amalgamation" that appear at the end of clause 1(c) of the amalgamation agreement. The argument is that the plain meaning of those concluding words is that the petitioner assumed only those duties, liabilities and obligations of B.C. Electric that existed prior to the amalgamation. Because the Waste Management Act did not become law until 1997, there was no responsibility of B.C. Electric under that statute for the petitioner to assume as of the date of amalgamation.

[9] I do not agree that the concluding words of clause 1(c) have such a meaning. In my opinion, the clear purpose of the whole of the clause is to prevent the expiration of B.C. Electric's legal responsibilities upon amalgamation. Its clear purpose is to transfer those responsibilities to the new single entity formed from three pre-amalgamation entities. B.C. Electric lives on in the petitioner as the result of a transition intended by the Legislature to be seamless. The acts giving rise to contamination had been completed prior to the amalgamation and any legal responsibility for those acts arising before or after the amalgamation was assumed by the petitioner. If the Legislature had intended to limit the transfer only to legal responsibility that arose or materialized before the amalgamation and not after, it would have and should have made that intention clear by explicit language to that effect. I agree with the conclusion of the Board that the words "immediately before the amalgamation" are not words of limitation. They do not limit the legal responsibility. I agree with the reasoning of the Board, at page 21 of its decision, that the purpose of the four concluding words in the clause is to identify the date on which the petitioner became the beneficiary of all the property of B.C. Electric and on which it assumed all of that company's duties, liabilities and obligations. Those duties, liabilities and obligations did not terminate on August 20, 1965. They were ongoing and it was the clear intention of the Legislature that they be assumed by the petitioner. Therefore, any legal responsibility under the Waste Management Act that would have fallen on B.C. Electric falls on the petitioner.

[10] This conclusion is in keeping with and is strengthened by the decision of the Supreme Court of Canada in R. v. Black and Decker Manufacturing (1975) 1 S.C.R. 411. That decision sets out the nature of an amalgamation between corporate persons and the legal responsibilities that pass to the surviving entity as a result of the pre-amalgamation conduct of one of its components. I am not persuaded that the concluding four words of clause 1(c) in the amalgamation agreement before this court distinguish this case from the reasoning in that case or the federal legislation which applied to that case.

[11] Because of my concurrence with the Board's decision on the interpretation of the amalgamation agreement, it is unnecessary to decide whether by reason of the wording of s. 27 of the Waste Management Act the imposition of liability under that statute is retroactive.

[12] The petition is dismissed with costs.

"R.T.A. Low, J."
The Honourable Mr. Justice R.T.A. Low