In what circumstances will a court order remediation costs under the BCSC 1147 remediation act?

In O'Connor v. Fleck (2000), 79 B.C.L.R. (3d) 280, 2000 BCSC 1147 the court found the plaintiff entitled to damages for the defendants' breaches of express covenants in its lease to reinstate and clean the premises. The court also found that the plaintiff was alternatively entitled to costs of remediation under the Act. In doing so, the court applied the Act to determine whether the site was a contaminated site and whether the defendants were "responsible persons". The issue of the court's jurisdiction to do so does not appear to have been raised and there is no discussion of it in the decision.

In Swamy v. Tham Demolition Ltd. (2000), 81 B.C.L.R. (3d) 293, 2000 BCSC 1253 ("Swamy No.1") 400 to 500 truck loads of excavated materials were delivered to the plaintiff's blueberry and vegetable farm. There was an issue of whether the material was contaminated. The plaintiff brought action against a number of defendants alleging breach of contract, negligence, nuisance, fraud and that the defendants were in contravention of the Act. The plaintiff subsequently brought a motion for judgment on liability.