No. 95/1931

VICTORIA REGISTRY

RE: MARCH 23, 1995 DECISION OF THE ENVIRONMENTAL

APPEAL BOARD CONSTITUTED PURSUANT TO THE HEALTH ACT

1. The petitioners bring this application pursuant to the provisions of the Judicial Review Procedure Act for an order setting aside the decision of the Environmental Appeal Board. That decision confirmed the issuance of a permit to the respondent, Albaco Industries, for the construction of a sewage treatment facility on property immediately adjacent to that owned by the petitioners. The petitioners say that the permit was wrongly issued because the construction and utilization of the septic system provided for by the permit would contravene the Health Act and Regulations and because of the lack of procedural fairness on the part of the Environmental Health Officer in his dealings with them prior to making the decision to issue the permit.

2. The petitioners, father and daughter, are the joint owners of property in Duncan, British Columbia (Lot 4), the southern boundary of which is the northern boundary of property owned by the respondent, Albaco Industries Inc. (Lot 3). The properties are each about 10 acres in size. Pursuant to its plans to build a residential development on Lot 3, Albaco applied on November 25, 1994, for a permit to allow the construction and installation of a septic system. If approved the septic field of the proposed system was to be located within four meters of the southern border of the petitioners' property. On a number of occasions before and after Albaco made application for the permit the petitioner, Cynara de Goutiere, communicated with Mr. Alan Rideout, the Environmental Health Officer responsible for processing the Albaco application, advising that she and her father were concerned about the impact on their property of the proposed septic system. In particular, Ms. de Goutiere sent a letter dated November 29, 1994, to Mr. Rideout advising, amongst other things, that it had been determined that the best place for drilling a domestic well on their property was as close to the southern border as possible, "within a few feet of the proposed septic system." In this letter Ms. de Goutiere asked for a response before December 2, 1994 and advised that in the absence of a response "we can only proceed pro-actively by attending to our own concerns and assure ourselves of water on my father's property as soon as possible."

3. Mr. Rideout did not respond to Ms. de Goutiere's letter. On December 6, 1994, unbeknownst to the petitioners, Mr. Rideout issued a permit to Albaco for the construction of a package treatment plant on Lot 3 with the septic field to be located within four meters of the northern boundary of Albaco's property, the southern boundary of the petitioners' property. The petitioners made arrangements for a well to be drilled close to the southern boundary of their property. Drilling commenced December 7, 1994 and 15 gallons per minute of water was found on December 8, 1994. The septic system permit was posted on the Albaco property on December 8, 1994. It is from the issuing of this permit that the petitioners appealed unsuccessfully to the Environmental Appeal Board.

4. At p.6 of its decision, the Environmental Appeal Board disposed of the questions before it as follows:

The Panel finds on the evidence, that the Permit does comply with the Act and Regulations respective to breakout points, soil conditions, etc.

The Board finds that the Permit was issued in accordance with the requirements of the Health Act and its Regulations, two days before the well was drilled.

That being so, the Appellant's arguments regarding the proximity of the well established after the Permit was issued, are not applicable.

5. The appropriate standard of review to be applied by this court in respect of the decision of the Environmental Appeal Board must necessarily be determined in relation to the questions decided by the Board. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 Mr. Justice Iacobucci says at p. 590:

Having regard to the large number of factors relevant in determining the applicable standard for review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal…

At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights…

And further at p. 592 the Court says that in determining the appropriate level of review of an administrative decision the court should adopt a functional or pragmatic approach and examine the following aspects:

1. The expertise of the Tribunal and its members;

2. The purpose of the statute creating the Tribunal;

3. The nature of the problem before the Tribunal; and

4. The wording of the enactment conferring jurisdiction on the administrative Tribunal.

6. No issue was taken with respect to the expertise of the Tribunal and its members. It was conceded that the Tribunal did have special expertise with respect to environmental issues that might be brought before it, including the design, construction and location of septic systems. Therefore, decisions requiring the Board's special expertise should not be interfered with unless patently unreasonable. The test of patent unreasonability does not, however, extend to decisions of the Board with respect to issues not within the Board's particular areas of 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.

7. The petitioners also raised the issue of the lack of procedural fairness on the part of the Environmental Health Officer as a ground of appeal. It is apparent from the reasons of the Board that there was a lack of procedural fairness on the part of the Environmental Health Officer. Lack of procedural fairness may be cured by a subsequent hearing as was the case in King v. The University of Saskatchewan (1969), 6 D.L.R. (3d) 122 (S.C.C.) and Harelkin v. University of Regina, [1979] 2 S. C. R. 561. I am satisfied that the lack of procedural fairness on the part of the Environmental Health Officer was cured by the full hearing before the Environmental Appeal Board.

8. The Board's decision that the permit complied with the Act and Regulations with respect to "breakout points, soil conditions, etc." is clearly within the special expertise of the Board and is not patently unreasonable.

9. The remaining issue arises out of the decision by the Hoard that because the appellant's well did not exist at the date that the permit was issued 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. The questions to be answered in relation to this issue are:

(1)did that decision require the particular expertise of the Board; if so,

(2) was the result patently unreasonable; or, if not,

(3) was the result correct.

10. Those portions of the Health Act Regulations relevant to this issue areas follows:

3. (3) No permit shall be issued under subsection (1)

(a) until … the Medical Health Officer or Public Health inspector … is satisfied that, having regard to the provisions of [schedule 1], the construction, installa-tion and ultimate use of this system will not contravene the Act or this regulation…

6. Subject to section 7, no sewage disposal system constructed after the date of this regulation which involves the use of a septic tank or a package treatment plant is permitted unless the system conforms with the standards of construction, capacity, design, installation, location, absorption, operation and use set out… .

(b) for conventional package treatment plant systems, in Schedule 3.

11. Schedule 1 of the Health Act Regulations sets out the site investigation requirements including percolation tests and tests involving the quality of the surface water and ground water and the potential impact of the system on those water sources.

12. Schedule 3 of the Health Act Regulations, referable to the type of sewage treatment system approved by the permit, says in Clause 14:

An absorption field shall be located not less than…

(d) 30.5m [100 feet] from a source of domestic water…

The proposed and actual location of the petitioners' well was well within the proscribed distance.

13. The issue is whether the Environmental Appeal Board erred by concluding that the requirement in s. 3(3)(a), that the Environmental Health Officer be "satisfied", had been met. The question to be answered is whether the Environmental Health Officer could have been satisfied at the time the permit was issued that the construction, installation and ultimate use of the system would not contravene the Act or Regulations. This question is not one which requires the particular expertise of the Environmental Appeal Board insofar as the facts of this case are concerned and is therefore within the jurisdiction of this Court.

14. Section 3(3) of the Health Act Regulations must be read in conjunction with the provisions of s. 6 when determining the scope of the information to be considered by the Environmental Health officer when satisfying himself that the ultimate use of the proposed system will not contravene the Act or Regulations. In particular, s. 6 says that no sewage disposal system involving a package treatment plant "is permitted [emphasis added] unless the system conforms with the standards of … use set out in Schedule 3."

15. It is apparent from its reasons that the Board was of the opinion that the fact that the well had not been drilled before the permit was issued was determinative of the question as to whether the limitation in clause 14(d) of Schedule 3 of the Regulations was properly considered by the Environmental Health Officer when satisfying himself that the construction and ultimate utilization of the proposed system would not contravene the Act or Regulations. The Board did not consider that the advice given to the Environmental Health Officer by the petitioners with respect to their intention to drill a well on their property within the proscribed area was of such a nature that the Environmental Health Officer could not have been satisfied at the time the permit was issued that the ultimate use of the septic field would not violate the Act or Regulations.

16. The petitioners had clearly indicated their firm intention to put a well near to their shared property line with the defendant Albaco, within the proscribed distance from the proposed septic field. Procedural fairness required the Environmental Health Officer, and the Board, to take into consideration the rights and expressed intentions of adjacent property owners in deciding whether the permit should be issued. In this case, neither the Environmental Health Officer nor the Environmental Appeal Board gave any weight to the intentions of the petitioners, as adjacent property owners, to access potable water on their own property. Any rational consideration of the petitioners' intentions would have made it impossible for the Environmental Health Officer to have been "satisfied", in accordance with the requirements of ss. 3(3) and 6 of the Health Act Regulations, at the time the permit was issued that the ultimate use of the system would not contravene the Act or Regulations. Therefore, the decision by the Board that the permit was validly issued was not only incorrect but patently unreasonable.

17. The decision of the Environmental Appeal Board is set aside and the permit quashed.

November 21, 1995

Victoria, British Columbia