GFL claims are “deplorable” and “absurd”

By Sharon McLeay Times Contributor

David McGillivray, a lawyer from Gowling WLG law firm and legal counsel for Wheatland County administration, took exception to statements and assertions made by the lawyer for GFL Environmental Inc., Stephen Roberts, at the county’s Aug. 20 public review meeting.
“GFL’s conduct with the county has been nothing short of deplorable,” said McGillivray.
“In GFL’s responses, it is already showing intransigence. The county tells them it is a nuisance and the GFL’s response is ‘we disagree.’ I think it is fair to say, and I think when people here have their say, it will show there is a lack of transparency and with a lack of transparency … a lack of trust.”
McGillivray said residents have suffered for years while GFL made excuses, delayed and ignored the direction to clean up and maintain their facility. Even after a court ruling compelled them to stop work, they continued to conduct business as usual, claiming the order needed clarification and was confusing.
“I think he is misrepresenting the ruling of Justice (L. Bernette) Ho in this respect. The application that was brought under Section 545 of the MGA was a statutory injunction to enter those premises to carry out the inspection of the property to carry out the terms of the injunction,” said McGillivray. “She has not pronounced that an inspection under any circumstances cannot occur. She simply pronounced on what we believe was a statutory right, but she believed it was discretionary. I don’t think it is accurate that the decision of Justice Ho means there can never be access to the property.”
He said the remedial orders were not to be considered separately and were intended to be understood concurrently.
He discounted GFL’s assertion the county is over-reaching on this issue and does not have jurisdiction over this matter.
“County administration respectfully submits that there is necessarily some overlap in the jurisdiction of the county as enabled by the MGA and their bylaws and the purview of the province. To be clear, municipalities are given broad remedial power to manage matters in their municipalities,” said McGillivray. “In the present circumstances, Wheatland County has validly enacted the nuisance and unsightly property bylaws under powers given expressly by the MGA.”
He listed the powers as listed in the MGA that had also been referenced by Reeve Amber Link in an earlier discussion.
He said courts generally support that laws of the province and municipalities operate harmoniously in overlapping regulations. According to the Supreme Court, McGillivray said an extreme difference in substance or purpose between provincial and municipal law, or unauthorized actions taken by someone with no authority is the only reason to rule on jurisdiction.
“Wheatland County’s actions in the matter align with its purposes and mandate, as well as its authority under its statutes,” said McGillivray.
He maintained that GFL needs to stop work as per the Queen’s court ruling and indicated that they were technically not even entitled to a review because they had seven days from the issue of the order to seek a review under the MGA, and they did not.
He gave a lengthy argument on the many ways GFL caused and allowed the premises and property to harbour nuisances as defined in the county nuisance and unsightly property bylaws.
He pointed out that the property was unsightly and lacked cleanup and maintenance, and was detrimental to the surrounding area. GFL was not allowed to store composting on the property and required the processing of compost piles in a reasonable amount of time; hence, the legacy pile was a nuisance and unauthorized. GFL was not allowed storage of non-compostable material, which was evidenced by plastic in the piles for the last seven years. The release of any foul odour from the property is prohibited. McGillivray said implied permission of low-level odours associated with composting is time-bound for fresh organic waste, and odour levels emitted at the GFL site are far stronger than low-level parameters.
As to GFL’s assertions that complaints have decreased, McGillivray said the complaints of nuisance from residents had continued to occur over time, both formally and informally. There were many unrecorded complaints to the county that would not be registered with Alberta Environment or GFL.
McGillivray illustrated how GFL’s interpretations and justifications don’t hold up to the facts, and he called their rationale absurd, with their actions contravening existing regulations, law and interpretations under the law.
Given the interactions over the years with the facility and the county’s right to serve justifiable actions under the law, McGillivray advised Wheatland County council not to give leniency to GFL, and to ignore a request to withdraw the remedial orders and adjourn the meeting.