Environmental Appeal Board

How to File an Appeal

4.1 Filing an Appeal

What can be appealed

Section 93(1) of the Environmental Management Act gives the Board the power to hear appeals from decisions made by government officials under various statutes. The Board currently has jurisdiction to hear appeals made under five statutes:

          Health Act, R.S.B.C. 1996, c.179, as amended

          Environmental Management Act, S.B.C. 2003, c. 53

          Integrated Pest Management Act, S.B.C. 2003, c. 58

          Water Act, R.S.B.C. 1996, c. 483, as amended

          Wildlife Act, R.S.B.C. 1996, c. 488, as amended

The types of decisions that are appealable to the Board vary from statute to statute. To determine whether a particular decision may be appealed to the Board, the statute under which the decision was made must be consulted.  The types of decisions that are appealable under each statute are summarized below:

Who can appeal

The statute that provides for an appeal to the Board will also specify the people (including corporations and registered societies) who can appeal. These people are said to have “standing” to appeal. A summary of the people that have been granted standing to appeal a decision to the Board is provided below:

As may be noted, some statutes allow a broader group of people to appeal than others. If a person does not fall within the group of persons granted standing to appeal under the statute, the Board cannot accept the appeal.

How to appeal

To appeal a decision, a person with standing to appeal must file a notice of appeal with the Board office. Section 3 of the Environmental Appeal Board Procedure Regulation states that certain things must be included in a notice of appeal for it to be accepted. The notice of appeal must include:

1. The name and address of the appellant.
    

2. The name of the appellant’s lawyer or agent (spokesperson), if any.
    

3. The address for service of the appellant.
    

4. The grounds for the appeal (provide a detailed explanation of the appellant’s objections to the decision; describe errors in the decision).
    

5. The particulars relevant to the appeal (describe any background facts that relate to the appeal including how you are affected by the decision or order).
    

6. A description of the relief requested (what do you want the Board to order at the end of the appeal).
    

7. The signature of the appellant or the appellant’s lawyer or agent.
    

8. An appeal fee of $25.00 for each decision that is being appealed (see “Appeal fees”, below).

A copy of the decision that is being appealed (e.g., the permit, licence, application, order, rejection etc.) should be included with the notice of appeal.

Section 3 of the Environmental Appeal Board Procedure Regulation states that, unless otherwise directed under the statute that authorizes the appeal, the notice of appeal must be mailed by registered mail or by leaving a copy of the notice of appeal at the Board office during normal business hours.

The Board will also accept a notice of appeal by facsimile with the original copy of the notice of appeal and the prescribed fee to follow.

If the appeal is not commenced in accordance with the Environmental Management Act, the Environmental Appeal Board Procedure Regulation and the statute under which the decision was made, the Board does not have jurisdiction to hear the appeal, regardless of the merits.

Appeal fees

As stated above, for a notice of appeal to be complete, it must include the appeal fee of $25.00. This fee is required by section 3(4) of the Environmental Appeal Board Procedure Regulation and cannot be waived by the Board. The fee may be paid by cheque, money order or bank draft made payable to the Minister of Finance and Corporate Relations.

If the notice of appeal is delivered by facsimile, the appeal fee must be forwarded with a copy of the original notice of appeal for the appeal to be accepted as complete.  Until the fee is received, the notice of appeal is deficient (see “Incomplete (deficient) notice of appeal” below).

Time limit for filing the appeal

According to section 3(1) of the Environmental Appeal Board Procedure Regulation, every appeal to the Board must be filed within the time allowed by the statute that authorizes the appeal. Therefore, to appeal a decision, a party must forward a notice of appeal to the Board office within the time frame specified in the individual statute. A summary of the time limits currently established in the various statutes is provided below:

* If “notice” of a decision under the Environmental Management Act, Integrated Pest Managementl Act, Water Act or Wildlife Act is sent by registered mail to the last known address of the person, the notice is deemed to be served on the person on the date it is actually received by the person or 14 days after the notice was deposited with Canada Post, whichever is earlier.

The Board does not have the general power to extend the time limits. If a notice of appeal is not received in the Board office within the time specified the right to appeal may be lost.

Note:  If the delay in filing an appeal is due to improper posting of a notice required by the legislation, the person who wishes to appeal should file a notice of appeal and explain why the posting was defective and when the person first became aware of the decision he or she wishes to appeal.  The Board will consider the circumstances and whether the person was prejudiced before determining whether the appeal should be accepted.

Incomplete (deficient) notice of appeal

If the notice of appeal does not contain the required information and the required fee, it is considered deficient (see above, “How to appeal”).

Section 3(5) of the Environmental Appeal Board Procedure Regulation sets out the Board’s procedure upon receipt of a deficient notice of appeal. The chair may return the notice of appeal to the appellant together with a written notice which:

1. identifies the deficiencies; and
    

2. informs the appellant that the Board is not obliged to proceed with the appeal until a notice of appeal or amended notice of appeal is submitted to the chair by a specified date, with the deficiencies corrected.

If the deficiencies identified by the chair are not corrected by the date specified in the notice of deficiencies, the appeal may be deemed to be abandoned.

Filing a notice of appeal that is deficient will result in delays, as the Board will not take any action on the appeal until the deficiencies are corrected.

Rejection of a notice of appeal

The Board may reject a notice of appeal if:

1. the notice of appeal was filed after the time limit for filing an appeal has expired;
    

2. the appellant does not have standing to appeal; or
    

3. the Board does not have jurisdiction over the subject matter of the appeal or the remedy sought.

Before a notice of appeal is rejected, the Board will inform the appellant of this in writing, with reasons. Where it is unclear whether it should be rejected, the Board will give the appellant an opportunity to make submissions and provide potential parties with an opportunity to respond.

Preliminary objection

If a respondent, or any other party to an appeal has information that may call into question the appellant’s ability to appeal the decision (e.g. no appealable decision was made or the appellant does not have standing), the information should be forwarded to the Board as soon as possible. Failure to do so may result in an unnecessary hearing at significant cost to all involved.

The Board may request submissions from the appellant prior to making a decision on the objection.

Representatives/Legal counsel

A party does not need to be represented by a lawyer in an appeal. Parties may represent themselves (i.e., present their own cases) or have someone else (e.g., a non-lawyer) act as their spokesperson (Environmental Appeal Board Procedure Regulation, section 11). The Board will make every effort to keep the process open and accessible to parties that are not represented by a lawyer.