Environmental Appeal Board

Judicial Reviews of EAB Decisions - Summaries

Decision date: September 22, 2008 

Court: BCSC, Wedge J. 

Cite: 2008 BCSC 1251 

The District Director of the Greater Vancouver Regional District (“GVRD”) applied to the Supreme Court of British Columbia for a judicial review of the decision of the Environmental Appeal Board (the “Board”) in Darvonda Nurseries Ltd. v. District Director of the Greater Vancouver Regional District, Decision No. 2006-EMA-007(a), dated July 27, 2007.  

The District Director had issued a permit to Darvonda that authorized air emissions from Darvonda’s greenhouse facilities located in the GVRD.  The permit was issued under both the Environmental Management Act (the “Act”) and GVRD Air Quality Bylaw No. 937, 1999 (the “Bylaw”).  Darvonda appealed the permit to the Board on the basis that the permit unlawfully imposed emission standards that were more restrictive than those in the Code of Agricultural Practice for Waste Management (the “Code”) set out in the provincial Agricultural Waste Control Regulation (the “Regulation”).

The Board found that the Bylaw does not conflict with the Regulation because it is possible for agricultural operations to comply with both the Bylaw and the Regulation.  However, the Board found that the District Director exceeded his authority in issuing the permit, because the permit imposed certain emission standards that are more restrictive than those in the Regulation.  The Board held that the Code within the Regulation sets province-wide limits for particulate matter, opacity and odour content for emissions from wood-fired boilers used in agricultural operations.  The Board found that the permit issued by the GVRD was without effect to the extent that it purported to regulate matters that are regulated by the Regulation.  

The Board also found that Darvonda’s greenhouses are heated primarily to encourage plant growth and propagation, and not “solely for the purpose of comfort” as contemplated under section 6(5)(k) of the Act.  Therefore, section 6(5)(k) does not apply to exempt the Darvonda’s emissions from regulation under the Act.

The District Director requested that the Court set aside the Board’s decision, and restore the permit. 

The Court first considered the standard of review that applied to the Board’s decision.  The Court applied the test set out in Dunsmuir v. New Brunswick, 2008 SCC 9, and found that the standard of correctness applies when reviewing pure questions of law; namely, the Board’s conclusions regarding the interpretation of the Act and related legislation, and the effect of that legislation on the District Director’s authority.  The Court concluded that the standard of reasonableness applies when reviewing questions of mixed fact and law; namely, the Board’s conclusion regarding whether the greenhouses are heated solely for the purpose of comfort. 

Turning to the legislation, the Court found that the Board erred in law regarding the District Director’s authority to issue the permit.  The Court found that section 31 of the Act empowers the GVRD to perform all regulatory aspects of air quality management within the GVRD, and that the GVRD may regulate air emissions within its boundaries differently than the Province regulates air emissions elsewhere.  The Court held that the legislature contemplated overlap between GVRD bylaws and province-wide regulations, and section 37 of the Act authorizes the GVRD to regulate air quality within its boundaries in a manner that is inconsistent with provincial regulations of general application.  The District Director was entitled to issue the permit because the Bylaw requires operators to obtain a permit to discharge air contaminants in the GVRD. 

The Court agreed with the Board that the Bylaw does not conflict with the Regulation.  However, the Court found that the Board erred by not applying the conflict resolution provisions in section 37 of the Act to determine whether the permit conflicts with the Regulation.  The Court applied section 37 and concluded that the permit does not conflict with the Regulation.  Although the permit imposes more restrictive emission standards than the Regulation, dual compliance with the permit and the Regulation is possible.   

Finally, the Court found that the Board’s conclusions regarding comfort heating were reasonable and should be upheld. 

The Court restored that the permit, and set aside the Board’s conclusion that the District Director had exceeded his jurisdiction.
 

Granby Wilderness Society v. Environmental Appeal Board and Ministry of Forests [2005] BCSC 1031

Decision Date: July 7, 2005

Court: B.C.S.C., Slade, H.A.

Cite: 2005 BCSC 1031

Granby Wilderness Society (“Granby”) filed a petition to have a decision of the Environmental Appeal Board (the “Board”) judicially reviewed in the Supreme Court of British Columbia (the “Court”).  The Board held that on an appeal under the Pesticide Control Act (the “Act”) of a pest management plan, consideration should be given to whether the pesticide application authorized by the plan, not the decision making process set out in the plan, will cause an unreasonable adverse effect.  The Board also made findings about the mandatory content of pest management plans, and whether the particular plan in this case met all statutory requirements.  The Board found that the plan under appeal should be varied to include conditions limiting the application of pesticides in areas containing important forage for grizzly bears.

Granby submitted that the Board erred in law in its interpretation of the statutory requirements guiding the administrator’s determination that the pesticide application authorized by the plan will not cause an unreasonable adverse effect.  Granby argued that the primary matter to be considered by the administrator is whether the decision-making process set out in a plan establishes a basis for concluding that the application of pesticide will not cause an unreasonable adverse effect.  The Board submitted that, because section 6(3)(a)(ii) of the Act makes no distinction between a permit and a plan, the administrator may approve a plan if satisfied that the pesticide application authorized by the plan will not cause an unreasonable adverse effect.

The Court held that pest management plans set out a decision-making process by which the plan holder may decide to apply a pesticide to a particular area within the plan area.  In addition, the Act requires that the administrator must be satisfied that all considerations relevant to a determination that the application of pesticides will not cause an unreasonable adverse effect are considered within the process set out in the plan.  Therefore, in deciding whether to approve a plan, the administrator must consider whether the plan: (1) sets out all matters to be considered by the plan holder when deciding whether to use a pesticide, such that the administrator can be reasonably assured that the pesticide use will not cause an unreasonable adverse effect; (2) limits the plan holder's discretion to an extent, such that the administrator may reasonably be satisfied that a pesticide use under the plan will not cause an unreasonable adverse effect; and (3) includes a mechanism for notifying the administrator in advance of an intended pesticide use, so that the administrator's power under the Act to determine whether a particular pesticide use will cause an unreasonable adverse effect is not delegated to the plan holder.

Accordingly, the Court set aside the decision of the Board, and directed the Board to reconsider its decision in this matter.
 

Houweling Nurseries Limited v. The District Director of the Greater Vancouver Regional District and Roger Emsley [2005] BCSC 894

Decision Date: June 15, 2005

Court: B.C.S.C., Gerow, L

Cite: 2005 BCSC 894

Houweling Nurseries Ltd. (“Houweling”) filed a petition to have a decision of the Environmental Appeal Board (the “Board”) judicially reviewed in the Supreme Court of British Columbia (the “Court”).  The Board held that it did not have jurisdiction to hear an appeal regarding the refusal of the Greater Vancouver Regional District ("GVRD") to amend a permit under the Waste Management Act (the “Act”). 

Houweling argued that it has a right of appeal from the district director's decision to the Board, pursuant to sections 43(d) and 44(1) of the Act.  Houweling submitted that the Board's interpretation of sections 43 and 44 of the Act was not in keeping with the accepted approach to statutory interpretation, in which the words of an act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the act, the intention of the act, and the intention of the Legislature.  The GVRD argued that the plain meaning of the words should prevail and that the Board's decision was based on the plain meaning of the words.

The Court agreed with Houweling’s interpretation of the relevant sections of the Act.  The Court determined that the Legislature did not intend to distinguish between an issued permit and an amended permit, and there are no policy reasons to distinguish between a refusal of a permit and refusal of an amended permit for the purposes of determining whether there is a right of appeal to the Board.

The Court also held that policy considerations supported this interpretation.  In particular, the Court noted that the Board has the requisite expertise and is in a better position than the Court to determine the merits of the appeal.

Accordingly, the Court concluded that the Board has jurisdiction to hear the appeal of the decision refusing the amended permit.  The matter was remitted to the Board for a hearing on the merits of the appeal.

North Fraser Harbour Commission and General Chemical Canada Ltd. v. Attorney General of British Columbia, Canadian Pacific Railway, Deputy Director of Waste Management and British Columbia Hydro and Power Authority (Friends of the Earth, Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law Association, Intervenors)

Decision Date: January 20, 2005

Court: S.C.C., McLachlin C.J., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

Cite: 2005 SCC 1

In an appeal of a decision made by the Deputy Director of Waste Management (the “Deputy Director”) under the Waste Management Act, R.S.B.C. 1996, c. 482, (the “Act”), the Environmental Appeal Board (the “Board”) found that British Columbia Hydro and Power Authority (“BC Hydro”) could, due to the conduct of one of its predecessor companies, be named in a remediation order under the Act.  The British Columbia Supreme Court upheld the Board’s decision on judicial review. 

The central issue before the Court of Appeal was whether BC Hydro could be made subject to a remediation order under the Act by reason of the conduct of B.C. Electric from 1920-1957, which resulted in a contaminated site.  The Act fixes liability for site contamination on “responsible persons”, defined to include previous owners of the site and persons who had caused the site to be polluted.  BC Hydro was created out of the amalgamation of B.C. Electric and two other companies by way of the Amalgamation Agreement, which was attached as an appendix to, and ratified by, the Power Measures Act, 1966, S.B.C. 1966, c. 38.  Under the Amalgamation Agreement, BC Hydro was to be liable for the obligations and liability of predecessor corporations “immediately before amalgamation.”  

The majority of the Court of Appeal overturned the lower court order, reinstating the decision of the Deputy Director. 

The appeal to the Supreme Court of Canada was allowed for the reasons of Justice Rowles, dissenting in the Court of Appeal.

Rowles J.A. held that, by virtue of the Amalgamation Agreement, BC Hydro became fixed with the liabilities to which B.C. Electric would have been subject to had it not amalgamated with the other entities.  BC Hydro conceded that, if B.C. Electric still existed, it would be a “responsible person” under the Act and, therefore, liable for the site contamination.  The Supreme Court decision in R. v. Black and Decker Manufacturing Co., [1975] 1 S.C.R. 411, and other judicial decisions, supports the conclusion that the words “immediately before the amalgamation” did not have the effect of limiting BC Hydro’s legal responsibility.  Rather, those words simply establish that, from the time of the amalgamation, the new amalgamated enterprise replaces its predecessors.  Rowles J.A. found that, had a limit on future liability been intended, much clearer language would have been required.  The effect of the amalgamation was held to continue the three prior entities as one combined entity and, upon amalgamation, BC Hydro assumed the responsibilities of each of the three entities of which it was comprised, including B.C. Electric. 

Accordingly, Rowles J.A. found that the BC Supreme Court was correct in dismissing the judicial review petition and, thus, sustaining the Board’s decision.
 

Josette Wier v. Environmental Appeal Board and Minister of Forests of the Province of British Columbia [2003] B.C.S.C. 1441

Decision Date: September 24, 2003

Court: B.C.S.C., Ross, J

Cite: Smithers Registry No. 12731

Josette Wier applied for a judicial review of a decision by the Environmental Appeal Board upholding a decision by the Deputy Administrator to issue a permit for the use of the pesticide monosodium methane arsenate (“MSMA”) to control beetle infestations in trees. 

At the Board hearing, Ms. Wier contended that the use of MSMA in accordance with the permit would result in adverse effects on the environment and human health.  Ms. Wier also argued that the two-step test set out in Canadian Earthcare Society v. British Columbia (Environmental Appeal Board) (1987), 2 C.E.L.R. (NS) 254, [1987] B.C.J. No. 1747, (“Earthcare”), and generally applied by the Board in pesticide permit appeals, had been affected by the Supreme Court of Canada decision in 114957 Canada Ltee. (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, (“Spraytech”).  The two-step test requires the Board to determine whether the use of a pesticide in accordance with a permit will cause any adverse effects on human health or the environment, and if so, the Board must then determine whether the adverse effects are unreasonable based on a risk-benefit analysis.

Board held that the two-step test set out in Earthcare was unaffected by the Spraytech decision. The Board also found that the volume of MSMA allowed under the permit was excessive and could lead to harmful results. The Board ordered that the total volume of MSMA approved for use under the permit should be reduced by the equivalent of 57,500 trees, or approximately 38.3%. The Board also ordered that the permit should be amended so that MSMA could not be used in Tweedsmuir Provincial Park.  Subject to those amendments, the Board was satisfied that the application of MSMA under the permit would cause no unreasonable adverse affects.

At the judicial review, the B.C. Supreme Court considered whether the Board erred in its application of the Earthcare test by improperly limiting its considerations to only that evidence related to site-specific concerns, and by failing to undertake the appropriate analysis before concluding that the permitted pesticide use would cause no unreasonable adverse effects.

Before addressing those issues, the Court determined that the applicable standard of review was “correctness,” because the questions concerned the Board’s interpretation of the law. 

The Court found that the Board erred in its analysis of the risk of adverse effects by only considering site-specific concerns.  The Court found that although the Board can consider a federally licensed pesticide to generally be safe if used in accordance with the conditions listed on its label, that does not mean that the Board cannot consider evidence of general toxicity.  Earthcare does not prevent the Board from considering evidence on the toxicity of a federally licenced pesticide, simply because it has been so licenced.  It is within the Board’s discretion to consider evidence on general toxicity within an analysis of adverse effects posed by that pesticide.  The Court further held that this interpretation of the test articulated in Earthcare is consistent with both the decision of the Supreme Court of Canada in Spraytech and with the precautionary principle.  However, the Court determined that the Board had, in fact, considered some evidence on the general toxicity of MSMA, because the Board had heard and accepted the evidence of Dr. Cullen, one of the Appellant’s witnesses, on the question of toxicity of the arsenic compounds found in MSMA.

On the second issue, the Court determined that the Board had found that the permitted use of MSMA posed some risk of adverse effects.  However, the Board erred in applying the second stage of the two-step test, by failing to consider the evidence of two of the Appellant’s witnesses concerning alternative, non-pesticide methods of beetle control.  Instead, the Board took steps to make this risk of adverse effects reasonable through modification of the terms of the Permit.  In failing to consider the evidence of alternative beetle control methods, the Board misapprehended the law and failed to meet the standard of correctness.

The Court sent the matter back to the Board to reconsider the question of unreasonable adverse effects, taking into consideration the evidence of alternatives for controlling beetle infestations.
 

British Columbia Hydro and Power Authority v. British Columbia (Environmental Appeal Board [2003] B.C.C.A. No 436

Decision Date: July 29, 2003

Court: B.C.C.A., Rowles, J. Prowse, J. Newbury, J.

Cite: Vancouver Registry No. CA027158

In an appeal of a decision by a manager under the Waste Management Act, R.S.B.C. 1996, c. 482, (the “Act”), the Environmental Appeal Board (the “Board”) found that British Columbia Hydro and Power Authority (“BC Hydro”) could, due to the conduct of one of its predecessor companies, be named in a remediation order under the Act.  The Board’s decision was upheld in the British Columbia Supreme Court.  BC Hydro appealed to the British Columbia Court of Appeal.

The central issue in the appeal was whether BC Hydro could be made subject to a remediation order under the Act by reason of the conduct of B.C. Electric from 1920-1957 which resulted in a contaminated site.  BC Hydro was created out of the amalgamation of B.C. Electric and two other companies under a special Act that permitted them to amalgamate “in any manner”.  Under the Amalgamation Agreement, which was appended to the Power Measures Act, 1966, BC Hydro was to be liable for the obligations and liability of predecessor corporations “immediately before amalgamation.”  Following the amalgamation, an Order in Council “recommended” that B.C. Electric “be declared to be dissolved.” The question in the appeal was whether BC Hydro inherited the responsibility under the Act for B.C. Electric’s actions.

Section 26.5 of the Act fixes liability for site contamination on “responsible persons,” defined to include previous owners of the site and persons who had caused the site to be polluted.  Counsel at the appeal agreed that if B.C. Electric still existed, it would be a “responsible person” for the purposes of the Act.  However, counsel disagreed with respect to whether, by virtue of the amalgamation, BC Hydro was fixed with “responsibility” under the Act, and whether the Act operated retroactively to result in B.C. Electric’s having been a “responsible person” immediately before the amalgamation.

The majority of the Court (Newbury and Prowse JJ.A.) held that under the unusual terms of the amalgamation, and following the plain and ordinary meaning of the Amalgamation Agreement, that BC Hydro had assumed only those liabilities of B.C. Electric that were liabilities immediately before the amalgamation.  The majority also held that the Act operates retrospectively, not retroactively. Therefore, B.C. Electric had not been liable “immediately before the amalgamation” and BC Hydro could not be said to be a “responsible person” for purposes of the Act by virtue of B.C. Electric’s activities between 1920 and 1957.

The dissenting judge (Rowles J.A.) found that, by virtue of the amalgamation, and on an application of R. v. Black and Decker Manufacturing Co., [1975] 1 S.C.R. 411, B.C. Electric’s liabilities “flowed through” to BC Hydro, and that the words “immediately before the amalgamation” were not “words of limitation.”  Rowles J.A. did not address the question of retroactive versus retrospective operation of the Act.
 

Turnagain Holdings Ltd. v. Environmental Appeal Board, W.T. Munro, Deputy Director of Wildlife, Ministry of Environment, Lands and Parks of the Province of British Columbia and Byron Dalziel [2002] B.C.C.A. No. 564

Decision Date: October 10, 2002

Court: B.C.C.A., Huddart, J. Hall, J. Mackenzie, J.

Cite: Vancouver Registry No. CA028931

In 2000, Turnagain Holdings Ltd. ("Turnagain") applied for judicial review of the Board’s decision in 1993 (Appeal No. 92/23 Wildlife (unreported)) in which the Board upheld the Deputy Director’s refusal to allow Turnagain to call witnesses and make final submissions during a hearing under the Wildlife Act. The appeal was brought to the Board by Byron Dalziel, in response to the Deputy Director’s decision, after the hearing, to suspend his guide outfitter licence and cancel his guide outfitter certificate, which he held in trust for Turnagain.

The British Columbia Supreme Court held that the Board had erred by failing to find that the Deputy Director had breached a duty of fairness to Turnagain. However, the Court also found that the delay in commencing the judicial review was unreasonable, and that substantial prejudice would occur for the Ministry if the Court granted the relief requested. Therefore, the Court dismissed Turnagain’s petition.

Turnagain appealed this ruling to the British Columbia Court of Appeal. The Court of Appeal held that the Supreme Court properly dismissed the petition and refused to grant relief, notwithstanding the finding that the duty of fairness was breached. The Court of Appeal applied a two-step analysis from Carpenter v. Vancouver Police Board (1986), 9 B.C.L.R. (2d) 99 (C.A.) (hereinafter "Carpenter"), which held that a court, faced with a delayed judicial review, should ask whether the petitioner’s delay is unreasonable, and, if yes, whether the court should refuse to grant relief.

First, the Court of Appeal looked at whether Turnagain’s delay was unreasonable. This included assessing Turnagain’s conduct, reasons for the delay, and other relevant factors. The Court agreed with the Supreme Court that Turnagain likely had access to financial resources to fund a judicial review proceeding. Therefore, the argument that the delay was not unreasonable because of a lack of resources was not persuasive.

After finding that the delay was unreasonable, the Court looked at whether it was appropriate for the Supreme Court to refuse to grant Turnagain relief. According to the second stage of the Carpenter analysis, the Court had to decide whether the delay resulted in prejudice to the Ministry, and balance this prejudice against the prejudice to Turnagain if relief was not granted. The Court held that the Supreme Court correctly found that Turnagain did not place sufficient value on the guide outfitter certificate to seek to protect its investment with a relatively modest additional borrowing of funds. The Court of Appeal agreed that substantial prejudice would result to the Ministry’s treaty negotiations, if Turnagain was granted relief, because the Ministry had made the guide outfitter certificate an integral part of the negotiations, before Turnagain petitioned for judicial review.

The appeal was dismissed.
 

*Imperial Oil Limited v. Ron Driedger, Deputy Director of Waste Management, Ministry of Water, Land and Air Protection [2002] B.C.S.C. No. 219

* Note: This was not a review of an Environmental Appeal Board decision.  An appeal had been filed with the Board but the parties concurrently pursued their remedies through a judicial review application.

The Court's judgement addressed the question of whether it should decline to adjudicate the issues raised in Imperial's petition on the grounds that Imperial had an "adequate alternative remedy" in the form of an appeal to the Board.  Ultimately the Court's decision rendered the appeal to the Board moot.

Decision Date: February 14, 2002

Court: B.C.S.C., Ross, J. 

Cite: Vancouver Registry No. L012504

Imperial Oil Ltd. ("Imperial") had requested an Approval in Principle ("AIP") under the Waste Management Act of a plan to remediate certain lands which were contaminated with hydrocarbons. Imperial brought a petition to the Court alleging that the Respondent withheld the AIP solely because Imperial had not settled civil claims for damages advanced by the owners of lands affected by the contamination. Imperial submitted that this was an irrelevant consideration, and sought an order of mandamus requiring the Respondent to issue the AIP. Imperial also sought a declaration and an order of prohibition against the Respondent on the basis that he had displayed actual bias or that his conduct gave rise to a reasonable apprehension of bias against Imperial. Lastly, Imperial sought a declaration of its right to procedural fairness and natural justice with respect to remediation orders which were issued and then subsequently cancelled by the Respondent. The Respondent opposed the claims on their merits and argued that the Court should decline to exercise its jurisdiction to determine these matters on the basis of mootness, and on the basis that Imperial had an adequate alternative remedy in the form of an appeal to the Environmental Appeal Board.

The Court found that the Respondent’s decision was neither an approval nor a disapproval of the AIP. Rather, he decided that he would issue the AIP if Imperial reached a settlement of the civil claims. The Court concluded that the decision was not one that could be appealed to the Board and, therefore, Imperial did not have an adequate alternative remedy with respect to the request for mandamus. The Court concluded that Imperial was entitled to an order in the nature of mandamus directing the Respondent to issue forthwith the AIP. The Court held that the provisions of the Act do not confer jurisdiction upon the Respondent with respect to tort claims, nor with respect to compensation for anything other than costs of remediation. Therefore, the Respondent’s decision was based on irrelevant considerations. Further, by deciding to issue the AIP on the condition that Imperial reached an agreement with the owners of the lands, the Respondent effectively put them in control of the decision to issue or withhold the AIP. Consequently, the Court held that this constituted an improper delegation and improper fettering of the Respondent’s discretion.

With respect to the issues relating to bias, the Court noted that the decision sought by Imperial would have no practical effect on the rights of the parties because the Respondent had stepped aside as decision-maker, and the remediation orders had been cancelled. Lastly, the Court concluded that it should not exercise its discretion to hear the case despite its mootness. The Court concluded that the declaratory relief sought by Imperial would not have practical utility for the parties.

Accordingly, the Court concluded that Imperial was entitled to an order in the nature of mandamus directing the Respondent to issue forthwith the AIP. The balance of relief sought in the petition was dismissed.
 

Abdul M. Mousa and Barbara Aweryn v. Simon Fraser Health Region and Environmental Appeal Board [2001] (B.C.) (Civil) No. 28817

Decision Date: December 6, 2001

Court: S.C.C. McLachlin, C.J C., Iacobucci and Bastarache JJ.

The application for leave to appeal to the Supreme Court of Canada was dismissed with costs to the Respondent Simon Fraser Health Region.
 

Abdul M. Mousa v. Simon Fraser Health Region and Environmental Appeal Board [2001] B.C. C.A. No. 418

Decision Date: June 21, 2001

Court: B.C.C.A., Ryan, J. Braidwood, J. Hall, J.

Cite: Vancouver Registry No. CA027576

Abdul Mousa and Barbara Aweryn (the "Appellants") submitted an application to repair their septic system to the Environmental Health Officer ("EHO"). The EHO refused to issue them a permit. On appeal to the Board, the Board upheld the decision of the EHO on the basis that the proposed repairs would not protect the public health.

The Appellants then filed a petition with the British Columbia Supreme Court seeking various forms of relief under the Judicial Review Procedure Act. The Court upheld the decision of the Board and dismissed the Appellants’ petition.

The Appellants appealed the Supreme Court decision to the Court of Appeal on several grounds. They sought to adduce new evidence, and challenged several findings of fact made by the Board and accepted by the Supreme Court. They also submitted that the Board and the Supreme Court erred in law by failing to address the legality of a dye test conducted by the EHO, which led him to conclude that the system had failed, as there was no standard procedure for conducting such tests. The Appellants argued that that they should be permitted to operate the septic system as a "non-conforming use" system.

The Court of Appeal found that new evidence would make no difference to the outcome of the appeal before the Board, and that the findings of fact made by the Board were reasonable and supported by the evidence. The Court of Appeal also found that the Appellants failed to establish that the dye test used by the EHO was vague. The Court further held that there was no rationale to allow the Appellants to operate the septic system as a non-conforming use when its use would constitute a health hazard. The injunction order was upheld.

The appeal was dismissed.
 

Turnagain Holdings Ltd. v. Environmental Appeal Board , W.T. Munro, Deputy Director of Wildlife, Ministry of the Environment, Lands and Parks of the Province of British Columbia and Byron Dalziel [2001] B.C. S.C. No. 795

Decision Date: June1, 2001

Court: B.C.S.C., Mr. Justice Cole

Cite: Vancouver Registry No. L002834

Turnagain Holdings Ltd. applied for judicial review of a July 9, 1993 decision of the Board in Appeal No. 92/23 Wildlife, in which the Board upheld the decision of the Deputy Director to deny Turnagain the right to be heard in a hearing under the Wildlife Act. The appeal was brought to the Board by Brian Dalziel, in response to the decision of Deputy Director to suspend his guide outfitter licence and cancel his guide outfitter certificate, which he had previously agreed to transfer to Turnagain.

Prior to the hearing before the Deputy Director, the Ministry gave Turnagain notice of the hearing against Mr. Dalziel. The Ministry was aware of the business arrangement whereby Mr. Dalziel held a guide outfitting certificate in trust as agent for Turnagain, who provided the financial backing for the enterprise. However, the Deputy Director refused to grant Turnagain standing to participate in the hearing, as Turnagain did not hold or have any share in the certificate.

At the Board hearing, counsel for Mr. Dalziel and Turnagain argued that because of the contractual relationship between them, Turnagain was owed a duty of fairness, and that the Deputy Director’s refusal to provide Turnagain with the right to be heard had breached the rules of natural justice. The Board rejected this argument on the basis that the purpose of the hearing was to consider Mr. Dalziel’s legal right, and that the Deputy Director was required to ensure that the hearing proceed without undue interference from those who did not have a legal right to be part of the disciplinary hearing.

In October 2000, Turnagain filed a petition for judicial review of the July 9, 1993 decision. Its position was that the Board had erred in upholding the Deputy Director’s refusal to hear Turnagain, and that it did not have the financial resources to proceed with the matter earlier. The Ministry took the position that to grant the relief requested by Turnagain would result in substantial prejudice or hardship to them because of the delay in bringing the judicial review proceedings.

The Court found that the interest of Turnagain was not simply a contingent interest, rather it was one that was direct, and that the Deputy Director breached the rules of natural justice by refusing to allow Turnagain to call evidence, cross-examine witnesses, and make final submissions. The Court held that the Board erred when it failed to find that the Deputy Director had breached a duty of fairness to Turnagain.

The Court found, however, that the delay in commencing the judicial review was unreasonable, and that substantial prejudice would result with respect to treaty negotiations if the application were granted. When no review was initiated, the British Columbia Treaty Commission included the guide outfitters certificate as an integral part of their negotiations with the Kaska Dena Council. The Court was not convinced that Turnagain lacked the financial resources to proceed with the judicial review in a timely manner.

The petition was dismissed.
 

Thomas Schreiber v. Environmental Appeal Board et al [2001] B.C. S.C. No. 515

Decision Date: April 5, 2001

Court: B.C.S.C., Mr. Justice T. M. McEwan

Cite: Nelson Registry No. 7791

Mr. Schreiber sought a judicial review of a decision of the Environmental Appeal Board to uphold a decision of the Deputy Director of Wildlife cancelling Mr. Schreiber’s hunting and firearms licences and fixing an ineligibility period of 6 years to obtain or renew the licences.

In October 1993, Mr. Schreiber reported having killed a bighorn ram at Dry Creek. Two hunters observed Mr. Schreiber that day in a prohibited area, the Line Creek Mine. Conservation officers investigated and found a sheep kill site within the mine area, and seized the sheep head from Mr. Schreiber. DNA samples from the kill site and from the head were sent for analyses. The first analysis at a lab in Oregon reported a negative match, while a second analysis from the University of Alberta reported a match. The lab in Oregon acknowledged the superiority of the University of Alberta’s analysis.

In November 1995, Mr. Schreiber was convicted in B.C. Provincial Court of offences under the Wildlife Act: hunting out of season, possessing dead wildlife unlawfully, and making a false statement in a report. In December 1998, the B.C. Supreme Court overturned those convictions and ordered a new trial due to problems with the expert evidence. However, Mr. Schreiber remained convicted of the additional charge of entering a mine site at an unrecognized point of entry. Crown Counsel ultimately decided not to proceed with a new trial.

On February 24, 1998, the Deputy Director of Wildlife cancelled Mr. Schreiber’s hunting and firearms licences, and ordered a 6 year period of ineligibility. This decision noted the Supreme Court findings as well as additional evidence regarding the DNA samples which was not before the Court.

The Board upheld the Deputy director’s decision, finding that the Deputy director had considered the conflicting DNA test results, that the Supreme Court proceedings were not determinative of the matter before the Deputy Director, and the penalty imposed by the Deputy Director was reasonable.

On judicial review, the Court upheld the Board’s decision. The Court confirmed that where criminal proceedings have been concluded in the accused’s favour, an administrative tribunal is not thereby prevented from imposing serious sanctions based upon essentially the same facts. The Court also rejected Mr. Schreiber’s argument that there was a violation of procedural fairness because he was not afforded an opportunity to have his own DNA samples taken of the seized evidence, nor the opportunity to cross examine the Crown’s scientific evidence. The Court found that there was no evidence that Mr. Schreiber had ever requested DNA samples for his own purposes, or that there was any obstacle to his access to witnesses.

The Court found that the Board was correct in its finding that the Deputy Director had a solid evidentiary basis for finding that the carcass from the Mine site and the head in Mr. Schreiber’s possession were from the same animal. He noted that Mr. Schreiber did not provide evidence to support a different conclusion.

The Court rejected Mr. Schreiber’s position that the Board erred in failing to order that the matter be disposed of in his favour because of delays in the hearing before the Deputy Director and the expense of the Crown pursuing different processes. The Court noted that Mr. Schreiber had requested a delay of the Deputy Director’s hearing pending the conclusion of his criminal trial. Citing the Supreme Court of Canada decision in Blencoe v. British Columbia (Human Rights Commission), 2000 S.C.C. 44, the Court stated that Mr. Schreiber had not identified any prejudice from the delay leading to unfairness.

The Court further stated that Mr. Schreiber was afforded a fair hearing and the appropriate burden of proof was applied. The Court held that there was no evidence that the Board ignored material evidence relating to the penalty, and no suggestion that the factors cited by the Board or the Deputy Director in arriving at the penalty were inappropriate.

The petition was dismissed.
 

Beazer East, Inc. v. Environmental Appeal Board et al [2000] B.C. S.C. No. 1698

Decision Date: November 24, 2000

Court: B.C.S.C., Mr. Justice D. Tysoe

Cite: Vancouver Registry No. L001638

Beazer East, Inc. ("Beazer") and Atlantic Industries Limited ("Atlantic") applied for judicial review of the decision of the Environmental Appeal Board (the "Board") in Appeal No. 98-WAS-01(b), where the Board upheld the decision of the Assistant Regional Waste Manager (the "Manager") to name Beazer and Atlantic as responsible persons in a remediation order issued under the Waste Management Act (the "Act"). The remediation order concerns a property located in Burnaby that was contaminated as a result of a wood treatment operation that took place on the site between 1931 and 1982. Atlantic was the operator of the wood treatment business, and Beazer is the "parent corporation" of Atlantic by virtue of owning a controlling interest in Atlantic’s shares.

Beazer claimed that the Board erred when it found that: (i) Beazer was a responsible person by virtue of being a previous owner and operator of the site, (ii) Beazer was not entitled to an exemption on the basis that it was a person who provided assistance or advice respecting remediation work, and (iii) the Manager had not improperly exercised his discretion in naming Beazer to the remediation order.

Atlantic claimed that the Board erred by: (i) failing to consider equitable grounds, (ii) failing to relieve Atlantic of liability on the basis of private agreements, (iii) failing to find an abuse of process by the provincial Crown, (iv) failing to find that the Board has jurisdiction to stay the remediation order pending the outcome of the cost recovery/allocation process, and (v) failing to find that the Manager had not properly exercised discretion in naming Atlantic to the remediation order.

The Court applied the pragmatic and functional test to determine the appropriate standard of review to apply to the Board’s decision. The Court considered the purpose of the Act, which is to prevent pollution and to provide for remediation of contaminated sites, and found that a higher degree of deference is owed to the Board where the nature of the problem is one of mixed fact and law. However, the Court noted that the Act does not contain a privative clause and that the issues of statutory interpretation in this case do not engage the Board’s expertise, which point toward according a lower degree of deference. As a result, the Court found that the Board should be held to a standard of correctness for questions of law, such as the interpretation of a statutory provision, and a standard of reasonableness simpliciter for questions of mixed law and fact, such as the application of the legal test to the facts.

The Court found that the Board was correct in finding that Beazer was a responsible person on the basis that it was a previous operator of the site, but not on the basis that it was a previous owner. The Court, in finding that the Board erred in its interpretation of "owner," stated that the meaning of the phrase "right of control of…the use of real property" in the definition of "owner" referred to a legal right. The Court noted that a parent corporation does not have the legal right to control a subsidiary’s use of assets, even though it may have an ability to control the subsidiary through other means (because the parent corporation can change the directors, who can change the officers, etc.) As such, the Court determined that the Board erred in finding that Beazer had a "right of control" of Atlantic’s use of assets as a result of Beazer’s requirement to approve Atlantic’s property leases, as this was not a legally enforceable right.

The Court determined that the Board was correct when it found that the phrase "in control of…any operation" in the definition of "operator" related to factual control of an operation, and not actual control of day to day operations. However, the Court noted that the Board may have erred in interpreting the phrase "responsible for…any operation" in the definition of "operator" too narrowly to only refer to legal authority over an operation. In the end, the Court did not interfere with the Board’s finding that Beazer was a responsible person by virtue of being a previous operator of the site. The Court also determined that the Board was correct in finding that the statutory exemption from liability for persons providing assistance or advice respecting remediation work did not apply to Beazer.

With respect to Atlantic’s claims, the Court upheld the decision of the Board on all grounds. The Court found that the Board did not fail to consider equitable factors, and that the Board was correct when it restricted the interpretation of "private agreements" to mean only existing, legally enforceable agreements. The Court also found that there was no abuse of process by the provincial Crown, that it was not unreasonable to name Atlantic to the remediation order, and that the Board was correct in deciding that it had no jurisdiction to stay the remediation order pending the outcome of the cost recovery/allocation court proceedings.

The petition was dismissed, and the parties were invited to make submissions on costs.
 

Abdul M. Mousa and Barbara Aweryn v. Environmental Appeal Board [2000] B.C.S.C.

Decision Date: July 21, 2000 (oral reasons)

Court: S.C.B.C., Josephson, I. B.

Cite: New Westminister Registry No. S057167 S061051

This was an application by Mr. Mousa for various forms of relief under the Judicial Review Procedure Act against the Simon Fraser Health Region (the "SFHR") and the Environmental Appeal Board (the "Board"). The application arises from Appeal No. 99-HEA-04, where the Board upheld the decision of the SFHR to refuse to issue a permit for the repair of Mr. Mousa’s sewage disposal system on the basis that the proposed repairs would not protect the public health. The SFHR then issued an order to Mr. Mousa, which set out exactly what was required of him in order to ensure that his septic system no longer constituted a health hazard.

Mr. Mousa’s claim against the Board was based on a number of allegations, including bias and other improper conduct. He claimed that the method by which the Board published its decision was improper, and the role of counsel for the Board in drafting the decision was inappropriate. The court found that these criticisms were all without reasonable foundation.

Mr. Mousa also claimed that his septic system should be permitted to continue as a non-conforming use, because a number of other residences in the area have similar septic systems that likely constitute health hazards. He also claimed that the tests done by the SFHR were unlawful in that they artificially introduced test liquid into his sewage system in such quantities that a failure was inevitable.

The court applied the standard of review of patent unreasonableness to the Board’s decision, and found that the petitioners had not demonstrated that the decision to withhold the repair permit was in error, let alone patently unreasonable. The court also found no improper conduct on the part of the SFHR. The petition was dismissed with costs to the Board and the SFHR, and the SFHR was granted injunctive relief against Mr. Mousa.
 

British Columbia Hydro and Power Authority v. Environmental Appeal Board [2000] B.C.S.C. No. 638

Decision Date: April 6, 2000 (oral reasons)

Court: S.C.B.C., Low, R. T. A.

Cite: Vancouver Registry No. A992600

This was a judicial review of the Environmental Appeal Board’s decision in Appeal Nos. 98-WAS-14(b) and 98-WAS-28(a). The Board found that BC Hydro and Power Authority was a "responsible person" for remediation at a contaminated site pursuant to section 26.5 of the Waste Management Act, as a result of its amalgamation with B.C. Electric Company and B.C. Power Commission on August 20, 1965. B.C. Electric had manufactured and delivered coal tar to the site for some years before the amalgamation.

BC Hydro argued that the Board erred in law in its interpretation of the final words of clause 1(c) of the amalgamation agreement which states:

(1) (c) The Authority … 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. [emphasis added]

"Authority" refers to BC Hydro and "Company" refers to B.C. Electric.

BC Hydro argued that the plain meaning of the concluding words of that clause is that BC Hydro assumed only those duties, liabilities and obligations of B.C. Electric that existed prior to the amalgamation.

The Court disagreed. It stated that "The intent of the Waste Management Act is to make polluters responsible for the cleanup of environmental contamination." As such, if B.C. Electric was still in existence as a separate legal person, it would have been subject to being found a "person responsible" for cleanup. The Court agreed with the Board that the words "immediately before the amalgamation" are not words of limitation. The purpose of clause 1(c) was to prevent the expiration of B.C. Electric’s legal responsibilities upon amalgamation by transferring those responsibilities to the new single entity formed from three pre-amalgamation entities. The words simply identified the date on which BC Hydro became the beneficiary of those duties, liabilities and obligations.

The Board’s decision was upheld. The petition was dismissed with costs.
 

Howe Sound Pulp and Paper Limited v. Environmental Appeal Board , Liz Lilly in her capacity as Deputy Director of Waste Management H.R. Roberts in his capacity as Regional Waste Manager and Terry Jacks [1999] B.C. J. No. 978

Decision Date: April 29, 1999

Court: S.C.B.C., Clancy, J.

Cite: Vancouver Registry No. A982268

Keywords: Waste Management Act - ss. 44(1), 45(3), 45(4), 46(3); jurisdiction; standing; standard of review; Pushpanathan v. Canada (Minister of Citizenship and Immigration) (SCC, 1998)

This was a judicial review of a decision of the Environmental Appeal Board upholding a decision of the Deputy Director of Waste Management to extend the time for Terry Jacks to file an appeal against an amended waste permit, and granting Mr. Jacks standing to appeal. Howe Sound Pulp and Paper Ltd. sought an order setting aside the decision of the Board, a declaration that Mr. Jacks had no standing to appeal the amended permit, and a declaration that the time to commence the appeal should not have been extended for Mr. Jacks.

The Court found that the test for standing articulated by the Board was appropriate, and that the question of whether "residency and proximity" were a sufficient basis for a determination that Mr. Jacks had standing was for the Board to decide. Further, the Court held that the question before the Board was one of mixed fact and law, and in determining such questions, the weight to be given to each factor is a matter for the Board to decide. The Court held that the appropriate standard of review is that of patent unreasonableness. As the Court found no defect apparent on the face of the Board’s decision, the Court deferred to the expertise of the Board and held that the Board’s finding should not be disturbed.

With respect to the extension of time to appeal, the Court found that the appropriate standard of review is also that of patent unreasonableness. The Court found that the test adopted by the Board was appropriate, and that the conclusion was reasonable on its face. Therefore, the Court held that the Board’s decision should not be set aside. The petition was dismissed.
 

Dennis H. Dunn v. Environmental Appeal Board

Decision Date: May 28, 1998

Court: S.C.B.C., Harvey, J.

By consent of the parties, the Court set aside the decision of the Environmental Appeal Board in Appeal No. 96/25.
 

Deputy Director of Wildlife v. Environmental Appeal Board and Lynn Ross [1998] B.C. J. No. 1162

Decision Date: April 28, 1998

Court: B.C.C.A., Donald, Hall, Proudfoot, JJ.A.

Cite: Vancouver Registry No. CA023459

(For the background, see the B.C. Supreme Court decision.)

The Court of Appeal upheld the Supreme Court’s decision that the Board had made an order that exceeded its jurisdiction under the then-applicable legislation. The Court found that the Board erred in concluding that the 14-day period discussed by the Deputy Director was an order of the Deputy Director. Thus, because it was not an order, the Board could not review it. In addition, the Court noted that the Ministry had a published policy that the right to transfer a certificate is forfeited upon cancellation of the certificate.

The Court also agreed with the lower court that the standard of review applicable to the provisions of the Wildlife Act at issue in the case was the "correctness" standard, because it was a jurisdictional limiting provision. However, the Court of Appeal noted that the Board should be recognized as having special expertise in environmental matters. Therefore, the standard of review on questions of law within the Board’s jurisdiction would be "patently unreasonable".
 

Deputy Director of Wildlife v. Environmental Appeal Board and Lynn Ross

Decision Date: June 13, 1997

Court: S.C.B.C., Taylor, J.

Cite: Prince George Registry No. 01282

The Deputy Director of Wildlife suspended Mr. Ross’ guide outfitter licence and cancelled his certificate effective two weeks after the date of his decision. The Deputy Director stated that it would not be proper to consider a transfer of Mr. Ross’ guiding territory within that two weeks. Mr. Ross appealed to the Board. The Board upheld the cancellation and suspension but found that the Deputy Director erred when he, effectively, prevented a transfer of the licence within that two week period. The Board ordered that the licence be renewed for 90 days so Mr. Ross could apply for a transfer of the licence. The Deputy Director applied for a judicial review.

The Court found that, under the Wildlife Act, the Board’s jurisdiction was limited and it does not have special expertise on questions of law. The Board’s decision was, therefore, assessed on a standard of correctness. The Court found that the Deputy Director’s comments regarding the transfer of Mr. Ross’ licence were not part of the order and, accordingly, were not properly a matter before the Board: they were a direction in the event of an application for a licence transfer. The Court also noted that the cancellation and suspension of a licence is punitive, and the Board’s order to allow time to transfer the licence would undermine the Deputy Director’s sanction. The Court confirmed the Deputy Director’s decision and quashed the Board’s order.
 

Minister of Health v. Environmental Appeal Board and Mountain Pacific Investments Ltd. (S.C.B.C.) [1996] B.C.J. No. 1531

Decision Date: July 9, 1996

Court: S.C.B.C., Romilly, J.

Cite: Duncan Registry No. S4915

Mountain Pacific Investments Ltd. applied to the Ministry of Health for a permit to install an experimental sewage disposal system under the Health Act. The Environmental Health Officer rejected the application. Mountain Pacific appealed to the Board. The Board reversed the Environmental Health Officer’s decision and granted the permit. The Ministry of Health sought judicial review of the Board’s decision on the grounds that the Board exceeded its jurisdiction by failing to address the question it was required to address under the legislation, namely, whether the proposed system contravened the Act and Regulation. Alternatively, the Ministry of Health maintained that the Board made an incorrect or patently unreasonable finding in concluding that the ultimate use of the proposed sewage disposal system would not contravene the Act and Regulation.

The Court found that the Board did not exceed its jurisdiction. The Board was specifically created to address technical environmental considerations and possessed expertise in environmental matters for this purpose. The Court held that the Board was operating squarely within its statutory jurisdiction to review the discretion of the Environmental Health Officer in rejecting a sewage disposal permit. The Board did not ask itself the wrong question as the ultimate requirement of the legislation was to ensure that permits issued under the Health Act contained conditions to safeguard public health. The Court held that the Board addressed this requirement in issuing the permit. The Board was not required to be absolutely certain that the proposed sewage disposal system would function without any risk of harm before issuing a permit because this would be an impossible standard to meet. The Board only had to be satisfied that the installation and ultimate use of the system would not contravene the Act or the Regulation, but not to the degree of absolute certainty.

On the second ground, the Court found that the decision of the Board was clearly within its jurisdiction and therefore could only be interfered with if patently unreasonable. The Court held that this was not the case and that this ground for review by the petitioner was nothing but a disguised attempt at an appeal of the decision of the Board. Accordingly, the application was dismissed.
 

Mark de Goutiere and Cynara de Goutiere v. Environmental Appeal Board and Albaco Industries (S.C.B.C.)[1995] B.C.J. No. 2513

Decision Date: November 21, 1995

Court: S.C.B.C., Quijano, J.

Cite: Victoria Registry No. 95131

The petitioner applied for judicial review of a decision of the Board under the Health Act upholding the issuance of a permit to construct a sewage treatment facility adjacent to the petitioner’s property. The Board found that the permit was issued in accordance with the requirements of the Health Act and its Regulations.

The Court held that the appropriate standard of review to be applied in respect of the Board’s decision was to be determined in relation to the questions decided by the board. The Court adopted a functional or pragmatic approach and examined the expertise of the Board and its members; the purpose of the statute creating the Board; the nature of the problem before the Board; and the wording of the enactment conferring jurisdiction on the Board.

The Court found that the Board possessed special expertise with respect to environmental issues brought before it and therefore decisions requiring the Board’s special expertise should not be interfered with unless patently unreasonable. The test of patent unreasonableness does not extend, however, to decisions of the Board with respect to issues not within the Board’s particular area of a expertise. Where the decision of the Board is based on its interpretation of the language of the statute and that interpretation does not require special expertise then that decision may be reviewed on a standard of correctness.

The Court held that, as recognized in the decision of the Board, there was a lack of procedural fairness on the part of the Environmental Health Officer. However, the Court was satisfied that this was cured by the full hearing before the Board.

The Court held that the Board’s decision that the permit complied with the Act and Regulations was clearly within the special expertise of the Board and was not patently unreasonable. However, the Court found that the Board erred in its decision that the proximity of the well to the proposed septic field was not a relevant matter to be considered in determining whether the permit should have been issued. Therefore, the Court concluded that the decision by the Board that the permit was validly issued was not only incorrect but patently unreasonable. Accordingly, the decision of the Board was set aside and the permit quashed.
 

Michael Wilson v. Environmental Appeal Board (S.C.B.C.)[1995]B.C.J. No. 1949

Decision Date: June 20, 1995

Court: S.C.B.C., Quijano, J.

Cite: Cranbrook No. 6018

The issue in this judicial review was whether Mr. Wilson (the “petitioner”) delivered his notice of appeal with respect to a decision of the Deputy Director of Wildlife within the thirty-day limitation period set out in s. 103 of the Wildlife Act. The petitioner maintained that the limitation period with respect to appealing a decision received by way of registered mail begins to run on the fourteenth day after it is mailed and not on the date the notice is signed for upon receipt.

Section 103(3.1) provides that the minister may give notice of a decision of the director by personal service on the person affected or by sending notice of the decision by registered mail to the last known address of the person affected. In the case of service by mail, notice will be deemed to have been given on the fourteenth day after it is mailed. Section 103(3.2) of the Act provides a right of appeal but notice of this intention must be provided in writing and served on the director not less than 30 days after the person appealing is served or is deemed to have been served with notice of the decision being appealed.

The Court found that the proper interpretation of s. 103 requires that the limitation period for the purpose of launching an appeal starts running the date the notice is physically delivered to the recipient or, in the case of sending notice of the decision by registered mail, fourteen days from the day the notice is deposited with Canada Post. The Court therefore rejected the interpretation of s. 103(3.2) with respect to a notice served by registered mail that the date of receipt on which the notice is signed for triggers the running of the limitation period. The application was allowed.
 

Lake Windermere Resort Ltd. v. Environmental Appeal Board (S.C.B.C.) [1994] B.C.J. No. 2775

Decision Date: December 6, 1994

Court: S.C.B.C., MacKinnon, J.

Cite: Victoria Registry No. 94 3790

The petition asked the court to find the respondent guilty of civil contempt in disobeying a Board order directing the respondent to cease depositing fill on its land.  The respondent informed the petitioner that it would not obey the Board's ruling but there was no evidence that fill has been actually deposited on the lands since the order.

The respondent informed the petitioner it did not intend to obey the ruling to discontinue depositing fill on its land.  The judge was not satisfied the petitioner proved, to his satisfaction described.  

In any event the judge did not find it appropriate to grant the remedy requested.
 

Lake Windermere Resort Ltd. v. Environmental Appeal Board (S.C.B.C.) [1994] B.C.J. No. 2776

Decision Date: December 6, 1994

Court: S.C.B.C., MacKinnon, J.

Cite: Vancouver Registry No. A943008

Lake Windermere Resorts Ltd. (the “petitioner”) applied for judicial review to have a stay order issued by the Board under the Water Act quashed, even though the Board subsequently vacated the order.

The petitioner maintained that the order should be quashed in order to prevent an appeal of the approval which was subject to the stay to the Comptroller of Water Rights. The Court held that proceeding with the petition simply to curtail the possible right to appeal would be improper because it would be directing the Comptroller how to hear the appeal before it had even taken place. In effect, the Court would be subjecting the Comptroller to judicial review before he had even taken any action to be reviewed. The Court declined to exercise its supervisory powers to review the conduct of the Board in granting the stay order holding that when the order was vacated any findings of fact or law would no longer have any force nor effect and therefore would not be available for judicial review. The Court found that the Board’s actions in granting a stay order and then vacating that order did not set a “bad precedent” or indicate that the Board could “not be trusted in the future” as alleged by the petitioner. The Court therefore found no grounds to support the review of the Board’s order which had been vacated. The petition for judicial review was dismissed.
 

Loni Parker et al v. Environmental Appeal Board et al (S.C.B.C.)[1990] B.C.J. No. 2915

Decision Date: June 29, 1990

Court: S.C.B.C., Holmes, J.

Cite: Vancouver Registry No. A901042

Mr. Parker (the “petitioner”) applied for judicial review of a decision of the Board on the grounds that the Board had exceeded its jurisdiction in the course of conducting an appeal. Specifically, the petitioner maintained that the Board had committed errors of jurisdiction during the appeal hearing: in refusing to compel the production of documents in the possession of the respondents prior to the hearing, denying an adjournment to the petitioners to allow their retained expert time to review the material, and at the end of the three-day hearing denying the opportunity for additional oral submissions choosing instead to receive submissions in written form.

Section 4(2) of the Environmental Appeal Board Regulations provides as follows:

The chairman shall within 60 days of receipt of the Notice of Appeal or of the Amended Notice of Appeal, as the case may be, determine whether the appeal is to be decided by members of the board sitting as a board or by members of the board sitting as a panel of the board, and the chairman shall determine whether the board or the panel, as the case may be, will decide the appeal on the basis of a full hearing or on written submissions.

Section 7 of the Regulations states:

Where the chairman has decided that a full hearing should be held, the chairman in an appeal before the board, or the panel chairman in an appeal before a panel, may require the parties to submit written briefs in addition to giving oral evidence.

The petitioner contended that “full hearing” under s. 4 (2) of the Regulations required the Board to conduct the entire hearing by way of oral evidence. The petitioner maintained that the Board’s receiving both oral and written submissions constituted a mixed hearing and contravened the Regulations. Moreover, the petitioner argued that s. 7 of the Regulations only allowed for written briefs in addition to oral evidence and not in substitution of oral evidence.

The Court rejected the petitioner’s interpretation of the Regulations and held that "full hearing" under s. 4 (2) means that the Board hears all the proper evidence the parties wish to tender at a public hearing, receives all proper written evidence, and permits relevant submissions before reaching its decision. The method followed by the Board in this instance was found to be well within this interpretation. As to the Board’s decision to deny the adjournment of the hearing, the Court held that the Board has the power to control its own internal procedures, including the matter of an adjournment. The only requirement is that the Board must act fairly and there was no evidence that it did not act in a proper manner here. In denying the petitioner’s adjournment request, the Board made a decision which permitted the petitioner a reasonable opportunity to present fully its evidence and submissions for the Board to consider in its decision.

Accordingly, the Court held that the Board did not commit any procedural errors nor was there a breach of natural justice and dismissed the petition.
 

Fred Olson v. James Walker et al (S.C.B.C.)[1989] B.C.J. No. 1579

Decision Date: August 18, 1989

Court: S.C.B.C., Huddart, J.

Cite: Duncan Registry No. 2286

In Olson, the issue in the judicial review was whether the Board could substitute its discretion for that of the Director of the Wildlife Branch of the Ministry of Environment, Lands and Parks.

The issue before the Board was whether Mr. Olson was entitled to an elk quota permit under the Wildlife Act for 1985. His application was previously refused by the Deputy Director. The Board found that Mr. Olson was entitled to an elk quota permit, but could not remedy the refusal since the hearing was held in 1986. Therefore, the Board made an order that the Director issue any future elk quotas in the region on a basis fair and equitable to all guide outfitters. It also made a number of recommendations to be met to fulfil this directive. In addition, the Board directed the Director to place Mr. Olson’s name at the head of the list of Guide Outfitters eligible to apply for elk quota permits in 1986.

The Board’s appeal powers under the Wildlife Act provide as follows:

103. (1) Where the regional manager makes a decision that affects

(a) a licence, permit, registration of a trapline or guide outfitter’s certificate held by a person, or

(b) an application by a person for anything referred to in paragraph (a),

the person may appeal the decision of the regional manager to the director.

(3) Where the director

(c) makes another decision decision that affects a matter referred to in subsection (1), the person aggrieved by the decision may appeal the decision of the director to the Environmental Appeal Board.

(5) In an appeal, the Environmental Appeal Board may

(a) dismiss the appeal, or

(b) send the matter back to the regional manager or director with directions.

The Board’s powers on appeal under s. 103 (5) were limited to dismissing the appeal or sending the matter back to the Regional Manager or Director with directions. The Court held that these powers did not include the power to substitute its opinion for that of the Director where his decision was reached in the lawful exercise of his discretion. The Court noted that the Board possessed relevant expertise and that the court should not intervene in decisions of the Board without giving respect and serious regard to their views. Nonetheless, the Court found that in arriving at its decision on Mr. Olson’s appeal, the Board’s effectively substituted its opinion for the opinion of the Director. Moreover, the Board varied the decision of the Director without finding an improper exercise of discretion. It also rendered a decision which purported to revamp Branch policy regarding elk quota permits. The Court held that the Board was given the task of ensuring that officers of the Wildlife Branch made decisions fairly, not the power to alter the general policies of the Branch. In doing all of these things, the Court held that the Board exceeded its jurisdiction. Finally, in the absence of a privative clause protecting the decisions of the Board in its parent legislation, an error of law was deemed sufficient to invalidate its decision.
 

Islands Protection Society v. Environmental Appeal Board and MacMillan Bloedel Limited (S.C.B.C.) [1988] B.C.J. No. 1639

Decision Date: September 8, 1988

Court: S.C.B.C., Legg, J.

Cite: Vancouver Registry No. A872320

The Islands Protection Society, (the “petitioner”) applied for judicial review to quash a decision of the Board which upheld the issuance of two pesticide use permits to MacMillan Bloedel Limited. The Board found that the application of the pesticides would not cause an unreasonable adverse effect on mankind or the environment. The petitioner maintained that the decision of the Board should be quashed on the following grounds:

1. A member of the panel had been absent from the hearing room while relevant evidence was being presented and he subsequently participated in making the decision of the Board without the benefit of a full transcript;
2. The Board obtained information from the Department of Fisheries to rebut evidence led by the petitioner indicating that the pesticides may have caused a major fish kill without notifying the petitioner and giving them the opportunity to cross-examine, rebut or meet the evidence gathered by the Board from the Department;
3. The Board erred in deciding that its jurisdiction was limited to deciding whether the pesticide was used and applied safely in accordance with the permit and the pesticide label and whether the specific site would lend itself to a safe application;
4. The Board erred in deciding that the Federal government had granted the citizens of Canada the right to use pesticides provided they did so in a safe manner and in accordance with the pesticide label;
5. The Board erred in holding that it would not hear evidence concerning reasonable alternative methods of achieving the same goals as the permits; and
6. The Board was required to give written reasons for its decisions and failed to do so. It also failed to deal with substantial points raised by the petitioner’s evidence.

The petitioner’s first grounds was based on the tenet of administrative law that at an oral hearing, each decision-maker must hear all of the evidence presented. Accordingly, a member who has not heard all of the evidence presented must not participate in the decision. Counsel for MacMillan Bloedel submitted that counsel for the petitioner waived any objection to the absence of the panel member by proceeding with his cross-examination in the absence of the member when he was aware that the evidence should be heard by the entire Board. The petitioner maintained that the panel member’s absence and subsequent participation was a breach of the rules of natural justice and that such a breach could not be waived.

The Court accepted that a breach of the rules of natural justice cannot be waived, but only where the breach is serious. The Court found that the party claiming a serious breach of the rules of natural justice bears the onus for demonstrating that there had been such a breach and that in this instance the petitioner failed to adduce evidence to show that there had been a serious breach of this rule of natural justice The Court held that it had a discretion to refuse to quash the Board’s decision where there had not been a serious breach of rules of natural justice and therefore rejected this ground of appeal.

The petitioner submitted that the Board’s private gathering of information from the Department of Fisheries to disprove evidence and its relying upon such information in its decision without allowing the petitioner to learn of, cross-examine, or meet such evidence constituted a denial of natural justice. The Court held that it has a discretion to refuse to quash the decision of a Board where the failure of natural justice is not sufficient to justify setting aside a decision which would not have been any different if the breach of natural justice had not occurred. The Court concluded that the Board would have probably reached the decision which it reached even if it had not consulted the Department of Fisheries, as it regarded the evidence led by the petitioner as unacceptable because it was conjecture.

The Court addressed grounds 3, 4 and 5 together as they were all affected by the decision of the B.C. Court of Appeal in Canadian Earthcare Society v. Environmental Appeal Board [1988] B.C.J. No. 373671 (unreported) (B.C.C.A.). Citing the Court of Appeal’s judgment, the Court held that the Board did not commit a jurisdictional error by assuming a federally registered pesticide to be generally safe. It found that the registration of a pesticide under Federal legislation gave an assurance that the pesticide was safe upon which the Board was entitled to rely. At the same time, the Board was not precluded from finding that the federally registered pesticide could never cause an unreasonable adverse effect if evidence was presented to demonstrate that the site in question prevented the safe application of the pesticide. Accordingly, the Court rejected grounds 3 and 4.

With respect to ground 5, the Court, again relying on the judgment in Canadian Earthcare, found that the Board had jurisdiction to decline consideration of alternative treatment methods once it was satisfied that the permit under review would not have an unreasonable adverse effect on the environment. If the Board found that the pesticide supported an adverse effect, it would be required to weigh that adverse effect against the intended benefit to determine if the anticipated risk was reasonable or unreasonable. The Court concluded that evidence of alternative methods would be relevant to measure the extent of the anticipated benefit and the issue of reasonableness. Specifically, if the same benefits could be achieved by an alternative risk free method, then the use of the risk method would be unreasonable. However, in this instance, the Court found while the Board did not expressly state in its reasons that it found no adverse effect from the method of application of the pesticide, it was inherent in the Board’s findings that it found no such effect. The Board was only required to consider alternative methods if it decided that an adverse effect existed. Since no such finding was made, the Board was not obliged to hear evidence concerning alternative methods. Accordingly, the Court rejected ground 5 as a basis for quashing the decision of the Board.

Finally, with respect to whether the Board erred in failing to give written reasons for its decision and whether the Board failed to deal with substantial points raised by the petitioner, the Court found that the Board complied with its Procedure Regulations requiring it to give written reasons for its decision under s. 6. The Court held that a tribunal is not required to make an explicit written finding on each element leading to its conclusion, and therefore found that it was not necessary for the Board to make a finding or give a reason on each component of its decision. All that was required was that the Board produce written reasons which contained sufficient material to indicate that it had directed its mind to the legal requirements applicable to the case. The Court found that the Board satisfied this requirement in this instance. Accordingly, the application was denied.

Nisga’a Tribal Council v. Environmental Appeal Board et al (S.C.B.C.) [1998] B.C.J. No. 3110

Decision Date: August 5, 1988

Court: S.C.B.C., Davies, J.

Cite: Registry No. A882021

The Nisga’a Tribal Council (the “petitioner”) applied for judicial review to quash a decision of the Board upholding a pesticide use permit issued to Westar Timber Ltd.

The petitioner raised a number of grounds for appeal, but the Court confined its decision to the single issue as to whether the petitioner had received adequate notice of the pesticide use permit in question as required under the Pesticide Control Act. Under the public notification provisions of the Act, the administrator was accorded discretion as to how notice was to be given with respect to a permit. The Board was charged with the duty of satisfying itself that the administrator had exercised this discretion properly and given effective notice of the permit to the petitioner.

The Court found that the administrator failed to fulfill the statutory notice requirement. The Ministry of Environment, Lands and Parks had made it a permit condition that any future permits issued for pesticide use in the Nass River Watershed would require notification of local communities, including the petitioner. However, in this instance, no effective notice was given. The administrator left the selection of the newspaper in which the notice was to be published to the discretion of Westar. Moreover, the administrator did not know nor did not inquire to make himself aware that there were no newspapers distributed within the Nass Valley. The Court found that this indifference on the part of the administrator prevented effective notice from being given to the petitioner and constituted a breach of natural justice. The Court found it to be irrelevant whether the Nisga'a were prejudiced by the absence of notice. In upholding the decision of the administrator, the Board allowed for a violation of the principles of natural justice. The decision of the Board was quashed.
 

Canadian Earthcare Society v. Environmental Appeal Board (B.C.C.A.)[1988] B.C.J. 3109

Decision Date: June 16, 1988

Court: B.C.C.A., Taggart, Hinkson, and Wallace, JJ.A.

Cite: Registry No. CA008290

The Canadian Earthcare Society (the “petitioner”) applied for judicial review to quash a decision of the Board upholding the granting of a pesticide use permit to the Ministry of Forests. The petitioner submitted that the Board committed errors of law/jurisdiction by assuming a Federally registered pesticide to be generally safe without assessing evidence of its toxicity; by refusing to consider alternatives to the pesticide for eliminating brush; and by exceeding its jurisdiction in granting an extension of the permit for one year.

The Court held that the Board was entitled to assume that a federally registered pesticide was generally safe. The Court further held that the Board did consider evidence of toxicity to the extent that the evidence showed that the specific site in question prevented the safe application of the pesticide, whether the proposed pesticide use was contrary to registration restrictions, or that the permit holder was unable to apply the pesticide safely.

The Court found, however, that the Board erred in its decision that it did not have jurisdiction to consider alternatives to the pesticide. The Board was obliged to consider viable alternatives to the use of the pesticide in question once it was determined that the application of the pesticide would support adverse effects. Specifically, in considering whether these effects were unreasonable, the Board was required to inquire as to whether alternatives existed to the pesticide. The Court found that the Board failed to do this in this instance. Accordingly, the Court allowed the appeal on this ground and remitted the matter to the Board, directing it to take into account possible alternatives in its analysis as to whether the adverse effects associated with the use of the pesticide were unreasonable.

The Court also found that it was inappropriate for the Board to grant an extension of the permit for one year without first insuring that parties affected by the permit received reasonable notice of the application for the time extension. The Court held that no such notice was given in this instance. The application was allowed in part.
 

Islands Protection Society v. Environmental Appeal Board et al (S.C.B.C.)[1986] B.C.J. No. 880

Decision Date: October 24, 1986

Court: S.C.B.C., Oppal, J.

Cite: Vancouver Registry No. A862257

The Islands Protection Society (the “petitioner”) applied for an order compelling the Board to hold oral public hearings in respect of permits granted under the Pesticide Control Act. The issues before the Court were whether the Board’s decision to proceed by way of written submissions constituted a denial of a hearing within the meaning of the legislation and, if so, whether the denial was contrary to the rules of natural justice and fairness.

The Court found that there is no absolute requirement under the right to be heard that persons entitled to its benefit be accorded an oral hearing. Decisions may be made in a perfectly fair manner and in accordance with the rules of natural justice without there having to be an oral hearing. Whether a person is entitled to an oral hearing depends on the circumstances of each case. These circumstances have to be considered in relation to a host of factors, among them the nature of the issue to be decided and the rules under which the tribunal is acting.

On the facts of this case, the Court held that there was a clear implication from the legislation that an oral hearing was required. Specifically, s. 8 of the Environmental Appeal Board Procedure Regulation which stated that, “Hearings before the board or a panel of the board shall be open to the public,” was held by the Court to evidence a legislative intent to hold public hearings with full participation by interested parties. The Court found that the Lieutenant-Governor-in-Council’s allowing members of the community who were not parties to the action the right to appeal or intervene with respect to proceedings in relation to pesticide permits indicated that the granting of permits was of sufficient public importance to warrant the holding of public hearings. As a result, the Board’s decision not to hold public hearings in this instance was deemed by the Court to be contrary to the rules of natural justice. The Court noted that not all circumstances would require the holding of public hearings. In fact, the rules of natural justice would sometimes be complied with by the filing of written submissions. However, the issues raised by the petitioner in its application were recognized by the Court as requiring the holding of oral public hearings. The Court also found that the mere fact that some evidence would be of a technical nature would not preclude the holding of a public hearing. Accordingly, the petitioner’s application was allowed.
 

Harvey Lawson v. Environmental Appeal Board, The Corporation of the District of Vancouver (S.C.B.C.) [1984] B.C.J. No. 185

Decision Date: November 27, 1984

Court: S.C.B.C., Paris, J.

Cite: Vancouver Registry No. A842083

Mr. Lawson (the “petitioner”) applied for judicial review of a Board decision on the grounds that the Board did not act in accordance with the rules of procedural fairness in ruling against the introduction of new grounds of appeal by the petitioner. The petitioner also submitted that the Board committed an error of law or jurisdiction in refusing to allow the new grounds of appeal.

The Court found that the Board did give full consideration to whether it should have permitted the addition of the new grounds of appeal. Moreover, there was nothing to indicate that in ruling against the petitioner the Board did not act in accordance with the rules of procedural fairness and/or committed an error of law or jurisdiction. The Court found that the even if the Board had jurisdiction to hear new grounds of appeal, it ultimately had discretion over whether or not to hear these new grounds.
 

Nanaimo, Duncan and District Labour Council, Village of Lake Cowichan et al v. Environmental Appeal Board and Canadian Pacific Ltd. (S.C.B.C.) [1983] B.C.J. No. 729

Decision Date: April 8, 1983

Court: S.C.B.C., Locke, J.

Cite: Nanaimo Registry No. SC4717

The petitioners applied for judicial review of a Board decision with respect to the issuing of a pesticide use permit to Canadian Pacific Ltd. under the Pesticide Control Act. During the appeal before the Board, it was discovered that the permit notice had failed to show that it was the intention of Canadian Pacific Ltd. to apply the pesticide during periods other than those indicated in the permit notice. Upon learning of this omission, the petitioners asked the Board for a time extension to allow them to prepare additional evidence to address the differences between a fall application and a spring application of the pesticide. The Board granted the petitioners a time extension for this purpose. However, the petitioners maintained that the time extension was not adequate and applied to the Board for an adjournment which was refused. The petitioners sought judicial review on the ground that they were denied procedural fairness in not being granted an adjournment required to allow them to fully present their case.

The Court held that the petitioners were not given sufficient time to accord them a full and fair hearing. The Court further held that Board’s denying the petitioners’ adjournment request was not a judicial exercise of discretion. The Court found that natural justice required that the petitioners be given an opportunity to state their case, and that because of the narrow form of the notice they did not have a fair chance to know with reasonable precision the case they had to meet. Accordingly, the Court held that the petitioners were entitled to an adjournment under the circumstances. Therefore, the Court remitted the permit to the Board for further consideration, namely, to hear any additional evidence that the petitioners wished to present concerning the application of the pesticide, and to only then make an appropriate order. The Court also suspended the operation of the permit until this had taken place. The application was allowed.
 

Disclaimer
The summaries provided on this site are an interpretation of the decisions by Board staff and may be subject to different interpretation.