Islands Protection Society v. Environmental Appeal Board
(B.C.)

Between
Islands Protection Society, Petitioner, and
Environmental Appeal Board, The Attorney General for the
Province of British Columbia, The Minister of Forests for
the Province of British Columbia, MacMillan Bloedel Limited,
Respondents

[1986] B.C.J. No. 880
Vancouver Registry No. A862257
8 B.C.L.R. (2d) 30

British Columbia Supreme Court
Vancouver, British Columbia
(In Chambers)
Oppal J.

Heard: Sept. 18, 1986
Judgment: Oct. 24, 1986
(9 pp.)

       Administrative law — Natural Justice — Fairness — Duty to hold public hearings where legislation contemplating oral evidence and representations upon appeal — Legislation providing for intervention by persons not parties to the action — Environment issues of such importance that denial of public hearing would be denial of natural justice — Environment Management Act, S.B.C. 1981, c. 14, s. 11 — Pesticide Control Act, R.S.B.C. 1979, c. 322 — Environmental Appeal Board Procedure Regulations, B.C. Reg. 1/82 ss. 4(4), 8.

       This was an application for an order compelling the Environmental Appeal Board to hold oral public hearings in respect of permits granted under the Pesticide Control Act. The applicant society submitted that the Board's decision to proceed by way of written submissions constituted a denial of a hearing within the meaning of the legislation and that the denial was in conflict with the rules of natural justice and fairness. The respondent Board argued that there was no absolute right to an oral hearing and that in the circumstances, an oral hearing was not necessary and would be unnecessarily expensive.

       HELD: The application was allowed. The legislation clearly implied that an oral hearing was required. The spraying of pesticides was deemed to be of such significance that concerned members of the community, not party to the action, were given the right to appeal or intervene. The issue of whether the board should set aside or uphold the granting of permits was of such importance that it would be fundamentally wrong and against the rules of natural justice to hear and determine the matter without public hearings and the consideration of oral evidence and representation.

Harvey M. Groberman, Esq.

¶ 1  OPPAL J.:— The Islands Protection Society petitions the Court for an order compelling the Environmental Appeal Board to hold oral public hearings in respect of permits granted under the Pesticide Control Act, R.S.B.C. 1979, c. 322.

¶ 2  The issues in this case are as follows:

¶ 3  The background of this matter is as follows. On April 12th, 1986 a pesticide use permit was granted to MacMillan Bloedel Ltd., authorizing the application of 750 kgs. of 2,4-D diethylamine (2,4-D) to three hundred hectares of timber on the Queen Charlotte Islands. On May 1st, 1986 a similar permit was granted the Minister of Forests, authorizing the application of 837 kgs. of 2,4-D to 279 hectares of timber on the Queen Charlotte Islands.

¶ 4  The Islands Protection Society is an environmental body which is comprised of approximately twelve hundred members. It concerns itself with matters of environmental interest in the Queen Charlottes. The Society has filed a notice of appeal with respect to both permits pursuant to the provisions of the Pesticide Control Act and the Environment Management Act, S.B.C. 1981, c. 14, and the Regulations thereto. The Society has requested that the appeals be conducted by way of oral public hearings. The Board denied this request and concluded that the appeals would be determined solely on the basis of written submissions. However, the Board has not foreclosed the possibility of oral hearings altogether, but has decided that after a consideration of written submissions it may, in certain limited circumstances allow an oral hearing to be held. The Board's decision was based on the grounds that an oral hearing with respect to another permit was held on June, 1986 and that the written submissions which have already been filed are identical to the earlier oral submissions. Accordingly, the Board determined that a public hearing would be unduly expensive.

¶ 5  The Society wishes to challenge the credibility of the permit-holders' witnesses and also present expert technical evidence with respect to studies conducted in the United States of the effects of spraying 2,4-D upon the environment, and its effects upon human beings. It alleges that scientific studies have shown that the spraying of the pesticide could result in cancer and birth defects. It is argued that oral hearings with the calling of viva voce evidence are necessary and would assist the Board in making a proper determination of this matter.

¶ 6  The Environmental Appeal Board is established by the Lieutenant Governor-in-Council pursuant to the Environment Management Act, S.B.C. c. 14, s. 11, to hear appeals from applications made for the granting of permits for spraying pesticides under the Pesticide Control Act. The appeal procedure is set out in the Environmental Appeal Board Procedure Regulation, B.C. Reg. 1/82. It is useful to examine the relevant portions of the Regulation. Section 4(4) reads, in part, as follows:

¶ 7  The Regulation also provides for the recording of the proceedings before the Board and for a production of the transcripts of the proceedings. In addition, the Regulation provides that parties appearing before the Board may appear themselves or by counsel or agent.

¶ 8  There is no absolute requirement under the audi altram partem rule that persons entitled to its benefit be accorded an oral hearing before the ultimate decision maker. In many cases 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. See Administrative Law, David J. Mullan, 1979, pp. 3-112 to 3-113. Statutory provisions are often relevant in order to determine whether there is a right to appear and be entitled to an oral hearing. In Administrative Law and Practice by Reid and David, (2d) 1978, the authors state at p. 95:

¶ 9  It would be useful to examine some of the authorities on this point. In Re Patchett et al. and Law Society of British Columbia et al. (No. 2) (1979), 101 D.L.R. (3d) (B.C.S.C.), the Court dealt with the question of the right to present oral argument in an administrative tribunal hearing. The Court dealt with the right to present argument before the Benchers of the Law Society of British Columbia. Anderson, J. (as he then was) held that as a general rule an administrative tribunal such as the Benchers of the Law Society must be held to be masters of their own procedure, and whether a person is entitled to an oral hearing depends upon the circumstances of each case. The Court relied, in part, upon the case of Coopers & Lybrand v. Minister of National Revenue (1978), 24 N.R. 163 (S.C.C.). Dickson, J. (as he then was) referred to the decision in Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, in which Lord Justice Tucker said, at p. 118:

¶ 10  Dickson, J., at p. 172, stated as follows:

¶ 11  In Ladner Transfer Ltd. v. Board of Industrial Relations (1969), 69 W.W.R. 481, the British Columbia Court of Appeal held that the words "to present evidence and make representation" contained in the Payment of Wages Act 1962 c. 45, include the right to present oral evidence and to make oral representations, and cannot in their ordinary meaning be confined to presenting written evidence and making written representations.

¶ 12  In Re Darling and the Criminal Injuries Compensation Board, 11 O.R. (2d) 766, the Ontario High Court of Justice considered the mode of a hearing held pursuant to an application for compensation for criminal injuries. Section 12 of the Compensation for Victims of Crime Act, 1971 (Ont.) c. 51, reads as follows:

At p. 769 the Court stated as follows:

¶ 13  The Federal Court of Canada Trial Division, in Attorney General of Manitoba et al. v. National Energy Board et al., F.C. 502, decided what constitutes "public hearings". The facts were as follows. Dow Chemical applied to the National Energy Board for a licence to export ethylene from Canada. The Board decided, with notice to interested parties, to hear the Dow application in public and to receive only written submissions from other parties. The latter complained of this form of proceeding at the outset of the hearing, but the Board adhered to its decision. Section 20 of the National Energy Board Act S.C. 1959, c. 46, reads as follows:

On p. 518 the Court stated as follows:

¶ 14  In opposing the application, counsel for the respondent submits that there is no absolute right to an oral hearing and that in the particular circumstances of this case an oral hearing is not necessary and therefore should not be ordered. It is also argued that the Board has not yet foreclosed the possibility of an oral hearing and therefore the application is premature. Counsel relies, in part, on Murphy v. Dowhaniuk and Workers' Compensation Board of British Columbia (1985), 66 B.C.L.R. 319 (S.C.). In that case the petitioner requested that the Workers' Compensation Board make a determination as to whether he was a worker injured within the course of his employment. The Board refused to give the petitioner an oral hearing but, over a two-year period prior to making the determination, gave the petitioner the opportunity to present his case and to know the case he had to meet. Macdonald, J. held that there was no breach of natural justice by virtue of the Board's refusal to hold an oral hearing. The Court went on to hold that there need not be an oral hearing or an opportunity to cross-examine witnesses whenever credibility is in issue. With respect, that case is distinguishable by virtue of s. 11 of the Workers' Compensation Act, R.S.B.C. 1979, c. 437, the relevant portions of which read as follows:

There was no requirement under that statute to hold the oral hearing. Moreover, the Act in that case contained a privative clause.

¶ 15  I do not think that it is any answer to this application to say that the Board has not yet foreclosed the possibility of an oral hearing in light of the Board's decision that it may, in certain limited circumstances, allow oral hearings to be held. What is at issue here is whether, in light of the legislation and the particular circumstances of this case, an oral hearing ought to be ordered.

¶ 16  It is agreed that generally, in the absence of legislation, there is no absolute obligation upon an administrative tribunal to hold oral hearings in order to comply with the rules of natural justice. However, in this case the clear implication from the legislation is that an oral hearing is required. The circumstances here are not unlike those which existed in Attorney General of Manitoba et al. v. National Energy Board et al., supra. The legislation in this case contemplates the holding of open public hearings with full participation by interested parties. The Lieutenant-Governor-in-Council has deemed the spraying of pesticides to be of such significance that it has given concerned members of the community who are not parties to the action the right to appeal or intervene. The issue of whether the Board ought to either set aside or uphold the granting of the permits is of obvious public importance. It would be fundamentally wrong and against the rules of natural justice to hear and determine matters of such public importance without holding public hearings in which oral evidence and representations can be heard. There are obviously circumstances under which the rules of natural justice would be complied with by the filing of written briefs or submissions. However, the environmental issues which have been raised by the petitioner in this application are such that the Board must hold oral hearings which are open to the public. The fact that some evidence may be of a technical nature does not detract from the need for citizens to participate in an open forum. The Board might well wish to hear cross-examination of expert witnesses and to pose questions which are of public interest.

   Judgment accordingly.

Oppal J.