Lawson v. British Columbia (Environmental Appeal Board)

Between
Harvey Lawson, plaintiff, and
Environmental Appeal Board, The Corporation of North
Vancouver, defendants

[1984] B.C.J. No. 185
Vancouver Registry No. A842083

British Columbia Supreme Court
Vancouver, British Columbia
Paris J.

Heard: November 27, 1984.
Judgment: filed December 19, 1984.
(4 pp.)

Counsel:

¶ 1      PARIS J. (orally):— Upon reflection, I find the City of Prince George case of this court and the Johnstone v. Nanaimo case of my brother Davies effectively indistinguishable from the case at bar.  It is true those cases dealt with procedural requirements provided by statute as distinct from a regulation, as in this case.  However, in my view that does not affect the binding authority in view of Sec. 41(2) of the Interpretation Act, which provides that a regulation made under the authority of an enactment has the force of law.  Of course the regulation cannot purport to effect an amendment to the enabling statute in the sense of creating a conflict or sanctioning a departure from it.  But the regulation in question here does not do that.  Rather, under Sec. 41(1)(a) and (b), it makes provisions which are ancillary to the statute and provides for procedural matters for which only partial provisions are made in the statutes.

¶ 2      That all being so, the reasoning in the two cases seems to be indistinguishable and, on the principle of the Hansard Spruce Mills case, I must follow them unless exceptional reasons to do otherwise exist, or a Court of Appeal binding on me roles otherwise.  Therefore, the Board was right in its decision not to permit further grounds of appeal.

¶ 3      It may be that the principle set out in them is not reconcilable with the decision in the Howard case. However, I do not have to decide that because I feel I am bound to follow them rather than the Howard case.

¶ 4      In any event, it may be that the Howard case is distinguishable in that the governing statute in that case set out the grounds of appeal that it was permitted to proceed upon.  So that the concerns of the pleadings and notice to the other side as expressed, for example, in the Johnstone v. Nanaimo cases by my brother Davies, are not as significant a factor as in the present case.

¶ 5      Secondly, a perusal of the record of the proceedings below indicated that, in any event, the Board did give full consideration to whether it should permit the addition of the new grounds of appeal and ruled against the appellant.  There is nothing to indicate that, in that regard, the Board did not act in accordance with the rules of procedural fairness, nor is there anything to indicate that it acted upon an erroneous principle of law or in excess of jurisdiction.

¶ 6      In this regard, incidentally, I find that there is nothing even in the Howard case to warrant the proposition that the Board, even were it to have jurisdiction to hear new grounds of appeal, if it chose, has no jurisdiction to refuse to hear such grounds no matter, for example, how frivolous or vexatious they might be.  There is a discretion in that regard, and I cannot direct the Board as to how to exercise its discretion.

¶ 7      For these reasons as well, therefore, I find no basis for quashing the Board's ruling even if it did have jurisdiction to permit new grounds of appeal.

¶ 8      With respect to the second issue, the amendment to the order made after its pronouncement, I am satisfied first of all that Mr. Hunter did originally intend to make an order including the word "average".  All the circumstances disclosed by the record indicate that -- the wording of the original permit, the applications in these proceedings, repeated reference thereto before and at the hearings.  There is nothing to indicate that its absence from the order pronounced was not an inadvertent slip, just as Hunter said it was.

¶ 9      Under Sec. 28(3), he had power to vary the original permit, which did not include the word "average," by adding it.  That does not really seem to have been an issue at all before the Board, although objection to it has been taken subsequently.

¶ 10      The Jonquiere case is clear authority for being able to correct such a clerical or inadvertent slip under the circumstances.

¶ 11      Finally, in my view, the difficulties in interpreting an order worded in such a way are not of such a magnitude to render them a nullity or beyond the jurisdiction of the Board to make.  As I have mentioned, the previous permit was in such terms and apparently worked and no objection or argument was addressed to the subject until after the order was made.

¶ 12      Finally, bearing in mind the residual discretion the Court has in the issuance of prerogative writs, I note the long process of hearings and appeals provided for to all concerned by the machinery of the legislation and which has been pursued in this case.

¶ 13      The application is dismissed.

¶ 14      As to costs, it is a close thing but I think on balance I will make no order as to costs.

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