No. 00732	No. 01282
Prince George Registry	Prince George Registry
BETWEEN:	BETWEEN:
DEPUTY DIRECTOR OF THE WILDLIFE BRANCH OF WILDLIFE BRANCH OF THE MINISTRY OF ENVIRONMENT, LANDS AND PARKS OF THE PROVINCE OF BRITISH COLUMBIA	LYNN ROSS
(PETITIONER)	(PETITIONER)
AND:	AND:
ENVIRONMENTAL APPEAL BOARD and LYNN ROSS	DEPUTY DIRECTOR OF THE WILDLIFE BRANCH OF THE MINISTRY OF ENVIRONMENT, LANDS AND PARKS OF THE PROVINCE OF BRITISH COLUMBIA
(RESPONDENTS)	(RESPONDENT)

THE COURT: (Oral) This is a petition of the Deputy Director of the Wildlife Branch acting in his capacity as a Regional Manager pursuant to Section 100 of the Wildlife Act, which I hereafter refer to as the Act, and Section 23 of the Interpretation Act for a review under the provisions of the Judicial Review Procedure Act of an order made by the Environmental Appeal Board on the 14th of February of 1997. A brief history of this matter is necessary for an understanding of the issues raised on this review. The Respondent Lynn Ross in 1993 was licenced and certified as a guide outfitter pursuant to the provisions of the Act. On the 26th of May of 1993, the regional manager for the Northern Region renewed Mr. Ross's licence and at the same time gave him notice that there would be a hearing conducted by the Deputy Director pursuant to Section 62 of the Act to determine if he should continue to hold the privilege of being a guide outfitter and, until that hearing was completed, an application by Mr. Ross to transfer his licence would not be considered. Mr. Ross applied for a judicial review of that decision to hold that hearing and to subsequently not adjourn it. Ultimately that application was dismissed on the 26th of October of 1993, and an appeal from that decision was dismissed as abandoned in March of 1996. On June the 24th, 1993, notwithstanding the application to which I referred to by Mr. Ross to adjourn the hearing, the Deputy Director held a hearing under Section 62. Mr. Ross, unsuccessful in his application to adjourn that hearing, declined to participate. On the 1st of September of 1993, the Deputy Director rendered his decision which was that Mr. Ross' guide outfitter licence was suspended and his certificate was cancelled. However in order to permit Mr. Ross an opportunity to shut down his operations in an orderly manner and not to leave any clients stranded in the field, the Deputy Director ruled that his decision was to be effective in two weeks time following the 1st of September of 1993. In doing so, he said; To accommodate clients that may be in the field or in transit, the suspension and cancellation will be effective September 15, 1993. I do not consider proper any consideration of transferring the territory prior to the suspension and cancellation taking effect. (Quoted as Read) Mr. Ross filed an appeal from that decision. That appeal was pursuant to Section 101(5) of the Act. The appeal was heard by the Environmental Appeal Board on the 23rd and 24th of October of 1996. At that appeal, despite the fact that Mr. Ross had absented himself from the hearing before the Deputy Director in June of 1993, the Board permitted Mr. Ross to lead and give evidence. During the hearing of the appeal Mr. Ross conceded that the Deputy Director, having found some sixteen violations or allegations of misconduct as established, could properly cancel the certificate. The Environmental Appeal Board dismissed most of Mr. Ross grounds of appeal, and on the 14th of February of 1997 it concluded its decision, and I quote, "It is the decision of this panel that the Deputy Director: 1) Was not biased and properly exercised his discretion in deciding to cancel Mr. Ross' certificate and to suspend his licence; and 2) Erred in law by deciding an issue not properly before him, thereby fettering the ability of the regional managers to exercise an independent discretion. Accordingly the matter is sent back to the Deputy Director with the following direction: 1) The Deputy Director shall renew the Appellant's guide outfitter certificate for a period of ninety days to allow the Appellant to file a formal application for transfer of the said certificate; 2) the Deputy Director (or the Regional Manager if the Deputy Director so delegates) shall decide whether to authorize a transfer and the conditions of any such transfer. If the Appellant fails to file a transfer application or, having filed one, is denied the transfer, the certificate will cease to exist." (Quoted as Read) The issues raised on this review are stated as follows: 1) That the Environmental Appeal Board erred in law and jurisdiction in its interpretation of the comments of the Deputy Director respecting the transfer of Mr. Ross' licence and, 2) if the Environmental Appeal Board was correct in the interpretation of the comment of the Deputy Director respecting transfer, was it within his jurisdiction when it ordered the ninety day period. The relevant provisions of the Act respecting appeals from the decisions of the Deputy Director when functioning as a Regional Manager are found in Sections 101(5) (a) and 101(10) (a) and (b), which are as follows: (5) (a), "If the Director exercises the powers of a regional manager in respect of the matters referred to in subsection (1), the person aggrieved by the decision may appeal the decision of the Director to the Environmental Appeal Board," And under subsection (10), "In an appeal the Environmental Appeal Board may (a) dismiss the appeal or (b) send the matter back to the Regional Manager or Director with directions." (Quoted as Read) As will be noted from subsection (10) , the powers of the Environmental Appeal are limited in terms of what that Board can do. As well the Board does not enjoy a statutory shield by way of any privative clause that limits or restricts judicial review of its decisions. While it performs various functions arising out of different Acts, the Act does not contain such a provision, nor is the Board one about which it can be said has some superior expertise that extends to questions of law. Thus a review of its decisions must he done on the basis of correctness rather than the standard of reasonableness. Attorney General of Canada v. Mossop [1993] 100 D.L.R. (4th) 658 and 676. However what I have just referred to does not mean to say that such decisions of the Environmental Appeal Board should not be regarded with anything but respect. Counsel for the Director argues that what the Deputy Director said does not form part of his order, and that the true effect of that decision was to suspend and cancel and to make it effective fourteen days hence. So arguing, it is submitted the Deputy Director simply expressed a view that, in the event of a transfer application, he would not consider proper any consideration of a transfer during that fourteen day period. Thus, it is argued, the Deputy Director simply emphasized the purpose of the fourteen day hiatus, that is, to permit an orderly shutdown. The position of the Director then is that these words do not form part of the order respecting transfer, a subject matter that was not then before the Director. Counsel for Mr. Ross argues that what the Board did was to interpret the words of the Director to determine the effect of the order made. The result of that interpretation, it is argued, is that the Board concluded the Director had given a right of transfer and all the Board did was to expand the time period for the transfer to ninety days. Mr. Darando says that there were two interpretations of what that passage that I quoted from the Director meant, and the Environmental Appeal Board determined what it was the Director wanted, that is to say dealing with a right of transfer. The effect of the decision, if what in fact the Director said was in reference to a transfer was in order, was a substitute of the Director's order whereby it fixed a period of time in which the transfer could be applied for from fourteen to ninety days by ordering the reinstatement for a period of ninety days that it did. The powers of the Environmental Appeal Board, as I have noted, are very limited under the appeal provision of Section 101 (5) and 101 (10). As noted by Madam Justice Huddart, as she then was, in Olson v. Walker, Duncan Registry 2286 August 21, 1989, the powers of the Appeal Board do not include the power to substitute its opinion for that of the Deputy Director or, in this case, where he functions as a regional manager. It simply has no power under its enabling legislation, being Section 101(10), from which it derives such authority to substitute a different opinion for that rendered by the Deputy Director. No issue arises on this appeal as to whether the Director properly exercised his powers on the basis that the cancellation or suspension was conceded. In my opinion, it is necessary only to deal with the first issue. The words of the Director permit, in my view, only one interpretation, that is the suspension and cancellation was to be suspended effective the 15th of September of 1993. He then said that he did not consider proper any consideration of transfer of the territory prior to suspension and cancellation taking effect. Given what he had just said about the reasons for the two week period, which was to permit Mr. Ross an opportunity to shut down his operations in an orderly manner, all the Director was doing in my opinion was to impart that, should a transfer application be made, it would not be proper to give the application consideration given that he otherwise would have made his order effective forthwith. One must be mindful that the order under Section 61(a) to suspend or cancel is in fact punitive. Mr, Ross conceded conduct that gave rise to that type of order. To permit a transfer within the two week period would undermine the sanction imposed. In my view, the Environmental Appeal Board erred in concluding that the fourteen day period discussed by the Deputy Director in terms of transferring was an order of the Director. It was not and, as such, it is not a matter that was properly before the Board for its consideration. If anything, it was a direction in the event of a transfer application that might be made during that period of time. It follows that the order of the Environmental Appeal Board was not within the jurisdiction of the Board to make. The order of the Environmental Appeal Board of the 14th of February of 1997 is quashed, and the order of the Deputy Director made the lst of September of 1993 is confirmed. The Director is entitled, if it so seeks, its costs with respect to this hearing on a scale 3. I take from the comments of counsel that the order for mandamus in the other separate matter brought by Mr. Ross to be dismissed without costs. If my understanding is other than yours, Mr. Darando, please let me know. MR. DARANDO. That's acceptable, My Lord, thank you. THE COURT: Thank you, gentlemen. 23 June 1997/slm