3076525 Nova Scotia Ltd. v. Nova Scotia (Environment)

3076525 Nova Scotia Ltd. v. Nova Scotia (Environment) Court Supreme Court Date 2016-05-25 Citation 2016 NSSC 138 Docket Hfx 449447 Judge/Registrar/Adjudicator LeBlanc, Arthur J. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: 3076525 Nova Scotia Ltd. v. Nova Scotia ( Environment), 2016 NSSC 138 Date: 2016-05-25 Docket: Halifax, No. 449947 Registry: Halifax Between: 3076525 Nova Scotia Limited Appellant v. Minister of the Environment Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: May 3, 2016, in Halifax, Nova Scotia Counsel: Robert Grant, QC, for the Appellant Sheldon Choo, for the Respondent Julia Croome and Kaitlyn Mitchell, for the Intervenors By the Court: [Subtitle] [1] Marlene Brown, Melissa King, and Angela Zwicker own separate properties on Old Sambro Road, Halifax County, Nova Scotia. They propose to intervene in the appeal of a Ministerial Order that identifies their properties as being “likely” or “very likely” impacted by a contaminated groundwater source, and provides for remediation and ongoing monitoring. The issue is whether the proposed intervenors have a sufficient interest in, or stand to be adversely impacted by, the appeal. Background [2] The Ministerial Order under appeal was issued by the Minister of Environment on February 24, 2016 (the “2016 Order”). The Order was issued pursuant to s. 125(1) of the Environment Act, S.N.S. 1994-95, c. 1, for contravening s. 67(2), which prohibits the release of harmful substances into the environment. For many years, the appellant's property, located at 1275 Old Sambro Road, Harrietsfield, Nova Scotia (the “Site”), was used for recycling operations. This resulted in contamination to the surface water and groundwater. The 2016 Order requires the appellant to perform remedial work and ongoing monitoring at the Site and at several neighbouring properties. [3] The 2016 Order is not the first Ministerial Order issued with respect to the Site. A previous Ministerial Order was issued in 2010 (the “2010 Order”), naming the appellant and several others. Those named in the 2010 Order appealed it. The Nova Scotia Supreme Court granted Ms. Brown and Ms. King intervenor status for the purposes of that appeal. The Court upheld the majority of the 2010 Order, but allowed the appeal in part, remitting the matter back to the Minister for redetermination (see 3076525 Nova Scotia Ltd. v. Nova Scotia (Minister of Environment), 2015 NSSC 137). The Minister subsequently revoked the 2010 Order and issued the 2016 Order (and another Ministerial Order) in its place. [4] On the appeal, the appellant is asking the Court to quash the 2016 Order, or remit it to the Minister. The proposed intervenors say they should be entitled to intervene in the appeal because they have an interest in the subject of the proceeding and they stand to be adversely impacted by the outcome. The appellant is not opposing the application and the Minister of Environment is not taking any position. Law [5] The test for leave to intervene is set out in Civil Procedure Rule 35.10. [6] Rule 35.10 requires the Court to do a two-stage analysis. The initial or first stage requires me to consider whether granting the motion as requested would cause undue delay, or caused serious prejudice to a party. Secondly, I need to determine whether the person has an interest in the subject of the proceeding, the person may be adversely affected by the outcome of the proceeding, the person ought to be bound by a finding in the proceeding, or the intervention by the person is in the public interest. [7] An affirmative finding of any one of the four factors is sufficient to grant the relief sought: see Reading v. Johnson, 2011 NSSC 87 at para. 10. Analysis [8] I am satisfied that the granting of the proposed motion would not cause undue delay, or cause serious prejudice to any party. [9] Turning to the second stage of the analysis, I am satisfied that the proposed intervenors have an interest in the subject of this proceeding. They have, therefore, satisfied the first branch of Rule 35.10(2). The 2016 Order requires the appellant to undertake substantial remediation efforts and ongoing monitoring with respect to surface water and groundwater at the Site and the proposed intervenors' properties. The proposed intervenors therefore have a direct property interest in the appeal. Their use and enjoyment of their homes may be fundamentally impaired by the ongoing water situation. The proposed intervenors rely on ground well water for domestic use such as drinking, bathing, cooking and cleaning. While their water remains impacted, they have resorted to bottling water bottles at local churches, and the bathing at the homes of family or friends. [10] The proposed intervenors' interest in the proceeding is not limited to property interests. The appeal also concerns their health. An environmental health consultant on behalf of Nova Scotia Environment indicated that there were clear exceedances of the Drinking Water Guidelines in some wells including Ms. Brown’s well, and she was concerned about the residents’ well-being and health. [11] I agree with the proposed intervenors' claim that they fall within the definition of a “direct” interest. The outcome of the appeal may have serious ramifications for them or their properties. [12] In addition, the proposed intervenors have established that they stand to be adversely affected by the outcome of the appeal. The remedies sought by the appellant, i.e. to quash the 2016 Order or return the matter to the Minister, could impact compliance with, or timing of compliance with, the Order. This, in turn, may impact the proposed intervenors, their properties and the ongoing water situation. Quashing the 2016 Order would mean that the appellant would not be required to conduct the study and prepare the remediation plans as required by the Order. The source of water enjoyed by the proposed intervenors would be directly impacted. [13] The proposed intervenors' motion to intervene is granted. The style of cause shall be modified to reflect this decision. [14] The proposed intervenors have also requested an order from the Court exempting them from any adverse costs award. The appellant does not consent to such an order and therefore the issue of costs will have to be the subject of a further motion. A. LeBlanc, J.