Date:                 20000721
Docket:               S057167
S061051
Registry:New Westminister

IN THE SUPREME COURT OF BRITISH COLUMBIA 
Oral Reasons for Judgment 
Mr. Justice I.B. Josephson 
July 21, 2000

BETWEEN:

PETITIONERS

AND:

SIMON FRASER HEALTH REGION

CITY OF BURNABY

ENVIRONMENTAL APPEAL BOARD

[1] THE COURT: Firstly, there is no purpose to be gained in permitting cross-examination of the affiants on their affidavit material and I would decline to make that order as sought by Mr. Mousa.

[2] My reasons here will be very brief because, in my respectful view, no purpose will be gained in providing more extensive reasons.

[3] I have, yesterday and today, reviewed the filed written material. Nothing has been overlooked. Mr. Mousa petitions for various and sundry forms of relief under the Judicial Review Procedure Act against the Simon Fraser Health Region and the Environmental Appeal Board. The Health Region, for its part, counter-petitions for injunctive relief against Mr. Mousa under s. 106 of the Act. Mr. Mousa's claim against the City of Burnaby was dismissed earlier today by consent. That claim was patently without merit.

[4] Very briefly, the background is this. Following complaints from residents of a detached home owned by Mr. Mousa, a health inspector attended and found the septic

system to be a health hazard. He found it was leaching septic fluids to the surface of the ground and to an adjacent ditch. There followed a long series of exchanges between the health inspector and Mr. Mousa. Mr. Mousa endeavoured to rectify these problems in his own way, however, those efforts require a permit under the Act. The permit was declined because the result of carrying out the proposed work would not remedy the health hazard:

[5] Mr. Mousa appealed that refusal to issue permits under Section a of the Health Act to the Environmental Appeal Board. After a hearing, that Board dismissed his appeal in very careful reasons.

(6) Following that, the Health Region issued a further order clarifying exactly what was required by Mr. Mousa to ensure compliance with the Act and Regulations.

(7) Mr. Mousa points out that compliance with the Act and Regulations would require the expenditure of some $20,000 on his part. He claims that his own repairs, effected without permit, have resulted in a septic system which no longer constitutes a health hazard under the Act.

(8) He makes a number of other claims, some of which are as follows. He accuses the Environmental Appeal Board of bias and other improper conduct. As I indicated, I read the material. These allegations have not been demonstrated on the evidence and appear to be completely without reasonable foundation. Mr. Mousa also questions the method by which the Board chose to publish its decision. That, however, is for it and it alone. He questions the role of counsel for the Board in the drafting of the decision. That again, is for the Board alone. I offer those as some examples of the criticisms he has directed towards the Board which I find to be without any reasonable foundation.

(9] Mr. Mousa suggests that there are as many as 140 other residences with septic systems that likely constitute a health hazard, primarily because of the age of those systems and the existence of a high water table in that area. He argues that his septic system should be permitted to continue as a non-conforming use. I simply interject that that principle does not apply to the Health Act. He argues that the tests employed by the health inspector were unlawful in that they unfairly introduced test liquid in quantities above which would be expected from normal usage, such that a failure was almost inevitable. He argues that the Health Region and the inspector did not comply with s. 71 of the Health Act. I interject again to say that this section does not apply to the Health Board for the reasons stated by Mr. Cascadden in his brief commencing at page 2.

(10) I will not now repeat the chronology of events. It began in August of 1997 with a complaint from a tenant of Mr. Mousa. There followed a series of tests and other complaints.

(11) There has been some confusion regarding the standard of review to be applied by this Court under the Health Act on an application of this nature. Section 112 of the Act contains a privative clause, that section applies to the decision of the Environmental Appeal Board. The applicant must demonstrate that the decision of the Appeal Board is patently unreasonable, within the meaning of Howe Sound Pulp and Paper (1999] 29 C.E.L.R., N.S. 225. That has not been demonstrated. Even where the standard of review by me were not so restricted, I would add that no other error has been demonstrated.

(12) Section 102 of the Health Act permits this Court to review orders of the Health officer or inspector. A court may vary or rescind an order upon good cause being shown. Such cause has not been shown or demonstrated for these reasons:

1. The health inspector found a condition which constituted a clear health hazard within the meaning of the Act and Regulations.

2. By virtue of Section 63 of the Act, the inspector was entitled to issue the orders that he did issue.

3. Mr. Mousa may not repair or alter the system without a permit.

4. Such a permit was reasonably withheld, as was also found by the Environmental Appeal Board after careful consideration. Section 7(2) of the Sewage Disposal Regulations requires that any repair or alteration will not constitute a health hazard.

5. Mr. Mousa has yet to comply with the lawful order of November 18th, 1999.

(13) I decline to grant any of the relief sought in the petition against the Health Region or the Environmental Appeal Board.

(14) The Environmental Appeal Board seeks special costs because of what it alleges are scurrilous allegations offered by Mr. Mousa against the Board. I will exercise my discretion by ordering costs in its favour on the usual scale.

[15) With respect to the Health Region's application for an injunction pursuant to s. 106 of the Health Act, that is granted. Being a statutory remedy, once the breach is established, which it clearly has, I have no discretion to deny it (see Langley v. Wood [1999] B.C. C.A., 260). I will grant the injunctive relief in the form sought by the Health Region. The Health Region will have its costs. The Region indicates, through counsel, that it is prepared to exercise some discretion in executing their injunctive relief, recognizing the reality of moving the present tenants out of the home. I will leave that to them.

[16] I will adjourn.

Mr. Justice Josephson