Decision Date: September 8, 1988

Court: S.C.B.C., Legg, J.

Cite: Vancouver Registry No. A872320

The Islands Protection Society, (the “petitioner”) applied for judicial review to quash a decision of the Board which upheld the issuance of two pesticide use permits to MacMillan Bloedel Limited. The Board found that the application of the pesticides would not cause an unreasonable adverse effect on mankind or the environment. The petitioner maintained that the decision of the Board should be quashed on the following grounds:

1. A member of the panel had been absent from the hearing room while relevant evidence was being presented and he subsequently participated in making the decision of the Board without the benefit of a full transcript;
2. The Board obtained information from the Department of Fisheries to rebut evidence led by the petitioner indicating that the pesticides may have caused a major fish kill without notifying the petitioner and giving them the opportunity to cross-examine, rebut or meet the evidence gathered by the Board from the Department;
3. The Board erred in deciding that its jurisdiction was limited to deciding whether the pesticide was used and applied safely in accordance with the permit and the pesticide label and whether the specific site would lend itself to a safe application;
4. The Board erred in deciding that the Federal government had granted the citizens of Canada the right to use pesticides provided they did so in a safe manner and in accordance with the pesticide label;
5. The Board erred in holding that it would not hear evidence concerning reasonable alternative methods of achieving the same goals as the permits; and
6. The Board was required to give written reasons for its decisions and failed to do so. It also failed to deal with substantial points raised by the petitioner’s evidence.

The petitioner’s first grounds was based on the tenet of administrative law that at an oral hearing, each decision-maker must hear all of the evidence presented. Accordingly, a member who has not heard all of the evidence presented must not participate in the decision. Counsel for MacMillan Bloedel submitted that counsel for the petitioner waived any objection to the absence of the panel member by proceeding with his cross-examination in the absence of the member when he was aware that the evidence should be heard by the entire Board. The petitioner maintained that the panel member’s absence and subsequent participation was a breach of the rules of natural justice and that such a breach could not be waived.

The Court accepted that a breach of the rules of natural justice cannot be waived, but only where the breach is serious. The Court found that the party claiming a serious breach of the rules of natural justice bears the onus for demonstrating that there had been such a breach and that in this instance the petitioner failed to adduce evidence to show that there had been a serious breach of this rule of natural justice The Court held that it had a discretion to refuse to quash the Board’s decision where there had not been a serious breach of rules of natural justice and therefore rejected this ground of appeal.

The petitioner submitted that the Board’s private gathering of information from the Department of Fisheries to disprove evidence and its relying upon such information in its decision without allowing the petitioner to learn of, cross-examine, or meet such evidence constituted a denial of natural justice. The Court held that it has a discretion to refuse to quash the decision of a Board where the failure of natural justice is not sufficient to justify setting aside a decision which would not have been any different if the breach of natural justice had not occurred. The Court concluded that the Board would have probably reached the decision which it reached even if it had not consulted the Department of Fisheries, as it regarded the evidence led by the petitioner as unacceptable because it was conjecture.

The Court addressed grounds 3, 4 and 5 together as they were all affected by the decision of the B.C. Court of Appeal in Canadian Earthcare Society v. Environmental Appeal Board [1988] B.C.J. No. 373671 (unreported) (B.C.C.A.). Citing the Court of Appeal’s judgment, the Court held that the Board did not commit a jurisdictional error by assuming a federally registered pesticide to be generally safe. It found that the registration of a pesticide under Federal legislation gave an assurance that the pesticide was safe upon which the Board was entitled to rely. At the same time, the Board was not precluded from finding that the federally registered pesticide could never cause an unreasonable adverse effect if evidence was presented to demonstrate that the site in question prevented the safe application of the pesticide. Accordingly, the Court rejected grounds 3 and 4.

With respect to ground 5, the Court, again relying on the judgment in Canadian Earthcare, found that the Board had jurisdiction to decline consideration of alternative treatment methods once it was satisfied that the permit under review would not have an unreasonable adverse effect on the environment. If the Board found that the pesticide supported an adverse effect, it would be required to weigh that adverse effect against the intended benefit to determine if the anticipated risk was reasonable or unreasonable. The Court concluded that evidence of alternative methods would be relevant to measure the extent of the anticipated benefit and the issue of reasonableness. Specifically, if the same benefits could be achieved by an alternative risk free method, then the use of the risk method would be unreasonable. However, in this instance, the Court found while the Board did not expressly state in its reasons that it found no adverse effect from the method of application of the pesticide, it was inherent in the Board’s findings that it found no such effect. The Board was only required to consider alternative methods if it decided that an adverse effect existed. Since no such finding was made, the Board was not obliged to hear evidence concerning alternative methods. Accordingly, the Court rejected ground 5 as a basis for quashing the decision of the Board.

Finally, with respect to whether the Board erred in failing to give written reasons for its decision and whether the Board failed to deal with substantial points raised by the petitioner, the Court found that the Board complied with its Procedure Regulations requiring it to give written reasons for its decision under s. 6. The Court held that a tribunal is not required to make an explicit written finding on each element leading to its conclusion, and therefore found that it was not necessary for the Board to make a finding or give a reason on each component of its decision. All that was required was that the Board produce written reasons which contained sufficient material to indicate that it had directed its mind to the legal requirements applicable to the case. The Court found that the Board satisfied this requirement in this instance. Accordingly, the application was denied.