Recycling depots obtain study records to test B.C. handling-fee review process

Four B.C. recycling depot operators obtained an order for records behind financial studies used in a handling-fee review, after the Environmental Appeal Board found that the material could help test the process approved for setting those fees. The October 20, 2026 ruling gives the operators access to specified documents for their appeal, without deciding whether the fee-review methodology ultimately satisfies provincial requirements.

In 0739024 BC Ltd. Regional Recycling Burnaby et al v. Assistant Deputy Minister, Ministry of Environment and Climate Change Strategy, 2026 BCEAB 44, board chair Darrell Le Houillier ordered Encorp Pacific (Canada) to produce four categories of study-related records. He also ordered the ministry’s assistant deputy minister to provide six identified documents. The decision is a preliminary production ruling, not an order increasing handling fees or compensating the depots.

The appellants operate Regional Recycling Burnaby, South Van Bottle Depot (Zim’s), Walnut Grove Bottle Depot and Regional Recycling Whistler. Their dispute concerns Encorp’s Return-It beverage-container program. Under the arrangement described in the reasons, depots collect containers from the public, pay the applicable refunds and receive handling fees from Encorp for collecting and managing the containers covered by its program.

Why the earlier studies mattered

The appeal challenges the ministry’s July 2023 approval of amendments to the handling-fee review provisions in Encorp’s beverage stewardship plan. The operators question the adequacy of consultation, whether the methodology provides for payment of the required program costs, and the dispute-resolution process. Their objections include how an average depot is defined, how study participants are selected and what protections apply to participating depots.

During the 2021 fee review, KPMG studied depot finances and costs. Encorp also commissioned a time-and-motion study from Propel Solutions to assess potential savings from a proposed sorting procedure. The operators sought instructions, underlying material and other records relating to those studies, arguing that the information could illuminate the process later reflected in the amended plan.

Encorp opposed the request. It argued that the appeal concerned an approved methodology, not whether earlier studies had produced correct results or fair compensation for particular depots. It also said the request was too broad and burdensome, raised confidentiality concerns, and included consultants’ material that Encorp had never possessed or controlled. The ministry took no position on the production application.

The board found sufficient continuity between the earlier review and the approved amendments to make the studies relevant. Although the proposals evolved, the basic model remained: a consultant selected depots, gathered information and analysed it to inform handling fees. Differences between the versions did not prevent records from the earlier process from shedding light on the methodology under appeal.

That conclusion did not turn on whether the studies’ financial results were correct. The relevant questions included whether the process allowed sufficient engagement with depots and used a methodology capable of providing for payment of the required collection and management costs. Instructions, assumptions and supporting material could help prove or disprove the operators’ allegations about that process.

Disclosure required a demonstrated connection

Le Houillier explained that production was not automatic merely because a document had been before the original decision-maker. The connection had to be assessed against the grounds of appeal. At this stage, it was enough to reasonably suppose that a document could help establish or refute a material fact, or clarify a disputed issue. The panel hearing the appeal would decide the eventual relevance, admissibility and weight of the evidence.

For correspondence about the plan provisions and the cost-payment requirement, the operators had demonstrated relevance as far as they could from the available descriptions. Encorp, which knew the contents, had not supplied a persuasive explanation to the contrary. The board treated this as a limited situation justifying a shift in the burden of proof because one party had special knowledge unavailable to the other.

Nor did a private or confidential label itself make the requested documents inadmissible. The board found no recognized privilege preventing their admission and explained that confidentiality concerns could be addressed through requests to restrict access within the proceeding. That reasoning concerned disclosure for the appeal; it did not order publication of the underlying business records.

Encorp’s control of the records limited the order

Encorp nevertheless succeeded in narrowing what it had to provide. The board accepted that the study process had deliberately insulated it from individual depots’ financial information and certain material held by the consultants. Compiled data, test or inspection results, and the authors’ working files, including draft studies, were outside Encorp’s care or control. The board therefore could not order Encorp to produce those categories.

The order instead covered instructions given to the study authors, documents they relied on, written statements of the facts underlying the studies, and records of independent observations. The last category expressly excluded results of tests or inspections conducted and relied on by the authors. Separately, the ministry respondent was ordered to provide six documents identified in the operative conclusion.

The board rejected the suggestion that the work involved in production was, by itself, enough to withhold records to which the operators were otherwise entitled. It regarded the limited order as supporting a fair appeal process. The ruling settled that disclosure application; it did not decide the merits of the depot operators’ challenge or establish whether the ordered production later occurred.

Source: 0739024 BC Ltd. Regional Recycling Burnaby et al v. Assistant Deputy Minister, Ministry of Environment and Climate Change Strategy, 2026 BCEAB 44, preliminary decision dated October 20, 2026.