Decision Date: October 31, 2014
Court: B.C.S.C., MacKenzie J.
Cite: Victoria Registry No. 14-3037
Lynda Gagne and Charles Claus applied to the B.C. Supreme Court for a judicial review of the Board’s reconsideration of their standing to appeal a permit amendment issued under the Environmental Management Act (the “Act”).
In April 2013, Ms. Gagne and Mr. Claus were among a group of eight appellants who appealed a decision issued by the Director, Environmental Management Act (the “Director”), to amend a permit held by Rio Tinto Alcan Inc. (“Rio Tinto”). The permit authorizes Rio Tinto to discharge effluent, emissions, and waste from a smelter located in Kitimat, BC. Among other things, the amendment allowed an increase in the smelter’s maximum daily emissions of SO2 (sulphur dioxide). After the appeals were filed, Rio Tinto challenged the appellants’ standing to appeal the permit amendment. Rio Tinto submitted that the appellants were not “persons aggrieved” by the permit amendment within the meaning of section 100(1) of the Act. The Board considered the issue as a preliminary matter conducted by way of written submissions.
In a decision issued in October 2013 (Lynda Gagne et al v. Director, Environmental Management Act (Decision Nos. 2013-EMA-005(a) and 007(a) through 012(a)), the Board found that two of the eight appellants had standing to appeal as “persons aggrieved” by the permit amendment. The Board held that the other six appellants, including Ms. Gagne and Mr. Claus, had not established that they were “persons aggrieved” by the permit amendment, and therefore, they had no standing to appeal.
Four of the unsuccessful appellants, including Ms. Gagne and Mr. Claus, filed a petition with the B.C. Supreme Court for a judicial review of the Board’s decision. The petitioners argued that the Board had acted in a procedurally unfair manner when staff of the Board requested that Rio Tinto provide copies of certain documents that both Rio Tinto and the Appellants had cited and partially quoted in their submissions. The petitioners argued that this was unfair because the deadline for written submissions had closed, and the petitioners were not given an opportunity to make further submissions regarding the documents, contrary to the Board’s Procedure Manual.
The Court issued its decision in March 2014 (Gagne v. Sharpe, 2014 BCSC 2077) [Gagne #1]. The Court first considered the degree of procedural fairness owed by the Board, in light of the rules of natural justice. The Court concluded that the key question was whether the Board complied with its own Procedure Manual, and not whether the petitioners had suffered any prejudice. The Court held that the Board was required to rigorously comply with its Procedure Manual. The Board’s Procedure Manual provided that, in deciding appeals, the Board would not request further information from a party without providing the other parties with notice and an opportunity to make submissions regarding that information. The Court found that, although there was no intentional misconduct by any party, the Board’s request for documents from Rio Tinto was a breach of its Procedure Manual, and this breached the petitioners’ right to procedural fairness. The Court also held that that Board had applied the “balance of probabilities” standard of proof to the question of standing, and this standard of proof was too rigorous. The Court held that appellants should only have to demonstrate on a prima facie basis that they are “persons aggrieved” when their standing is being decided as a preliminary matter. Finally, the Court concluded that any determination the Board makes regarding standing is entitled to deference from the courts, and a standard of “reasonableness” should be applied by the courts. Accordingly, the Court directed the Board to reconsider whether the petitioners had established, on a prima facie basis, that they are “persons aggrieved,” based on the submissions and information before the Board when the preliminary hearing on standing had concluded.
In a decision issued in April 2014 (Lynda Gagne et al. v. Director of the Environmental Management Act, Decision No. 2013-EMA-005(b), 008(b), 011(b), and 012(b)), the Board reconsidered the four petitioners’ standing to appeal the permit amendment, in accordance with the Court’s directions in Gagne #1. Based on the evidence, the Board found that they had failed to establish, on a prima facie basis, that they were “persons aggrieved” by the permit amendment, within the meaning of section 100(1) of the Act.
Ms. Gagne and Mr. Claus filed a petition with the B.C. Supreme Court for a judicial review of the Board’s reconsideration decision.
On October 31, 2014, the Court issued oral reasons for judgment. The Court held that the Board had properly considered and implemented the reasons and directions of the Court in Gagne #1. In addition, the Court confirmed that the Board’s interpretation and application of section 100(1) of the Act falls within the Board’s particular expertise, and is entitled to deference from the courts. The Court found that the Board had clearly considered all of the submissions and evidence before it, and had provided detailed reasons as to why, on reconsideration, the petitioners failed to establish on a prima facie basis that they are “persons aggrieved.” The Court concluded that the Board’s reconsideration decision was reasonable. The Court dismissed the petition, and ordered that each party would bear their own costs.