Decision Date:  March 14, 2014

Court: BCSC, MacKenzie J.

Cite:  2014 BCSC 2077

Lynda Gagne, Charles Henry Claus, Skeena Wild Conservation Trust, and Lakelse Watershed Stewards Society (the “Petitioners”) applied to the Supreme Court of British Columbia for a judicial review of the decision of the Environmental Appeal Board (the “Board”) in Lynda Gagne et al. v. Director of the Environmental Management Act, Decision No. 2013-EMA-005(a) and 2013-EMA-007(a) to 2013-EMA-012(a), dated October 31, 2013 [Gagne].

In Gagne, the Petitioners, Ms. Toews, and Ms. Stannus appealed a decision (the “Decision”), issued by a delegate of the Director, Environmental Management Act (the “Director”), to amend a multimedia permit held by Rio Tinto Alcan Inc. (“Rio Tinto”). The permit authorized 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 total emissions of SO2 (sulphur dioxide). After the appeals were filed, Rio Tinto challenged the Appellant’s standing to appeal the Decision. The Board then considered the issue as a preliminary matter. The Board found that the Petitioners were not “person[s] aggrieved” by the Decision within the meaning of section 100(1) of the Environmental Management Act (the “Act”), and denied their appeals for lack of standing. However, the Board decided that Ms. Toews and Ms. Stannus had standing to appeal as persons aggrieved by the Decision.

In reaching those conclusions, the Board first considered whether it should revise the legal test that it had previously applied to determine whether an appellant is a “person aggrieved” under the Act. The Appellants submitted that the Board should update its interpretation of “person aggrieved” to include persons with a “genuine interest” in keeping with the evolving jurisprudence on the law of standing in Canada. The Board held that it has no jurisdiction to grant public interest standing, and found no indication that the Legislature intended for “person aggrieved” to include persons with a “genuine interest”. Accordingly, the Board affirmed that the appropriate test for an appellant to establish that they are a “person aggrieved” is as follows: whether the person has disclosed sufficient information to allow the Board to reasonably conclude that the appealed decision will, or may, prejudicially affect the person’s interests. The Board stated that, in practice, this test requires an appellant to show, objectively on a balance of probabilities, that their interests will or may be affected, directly or indirectly, by the appealed decision.

The Board then considered whether each of the Appellants had standing to appeal the Decision. The Board denied all four of the Petitioners standing, as each failed to establish that they were a “person aggrieved” by the Decision. In respect of Ms. Gagne and Mr. Claus, the Board found that their concerns over the potential effects of the emissions on their asthma were too speculative or remote, as both appellants lived and worked outside of the area where the air quality was predicted to be mainly affected by the emissions, and they provided no information regarding whether or how air quality would be affected in their area. Their concerns about the other potential environmental impacts of the emissions were also found to be too speculative. In respect of the Trust, the Board found that it had provided no evidence or information that its assets, its interests, or its trustees’ interests would likely suffer some prejudice as a result of the amendment. In respect of the Society, the Board found that there was no evidence to show how the amendment could personally affect any of its members. The Board also noted that general concerns about the environment, human health, or regional interests are insufficient to establish standing to appeal. Consequently, the Board concluded that the Petitioners were not “person[s] aggrieved”, and dismissed their appeals.

The Petitioners applied to the B.C. Supreme Court for a judicial review of the Board’s decision to deny their standing. The Petitioners alleged that the Board had acted in a procedurally unfair manner when the staff of the Board requested documentation from Rio Tinto after submissions were closed, and without providing the Petitioners with an opportunity to make further submissions regarding the material. The documentation in question was a report that both the Petitioners and Rio Tinto had referred to in their submissions to the Board. The Petitioners requested an order from the Court quashing the Board’s decision, or directing the Board to grant the Petitioners standing as appellants. In the alternative, the Petitioners sought an order directing the Board to reconsider their standing as appellants in accordance with any directions that the Court may have deemed appropriate and just.

The Court first considered the degree of procedural fairness owed by the Board in light of the rules of natural justice, and the factors identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. 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 the procedures outlined in 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 notice and the opportunity for the other parties to participate and make further submissions regarding that information. The Court found that there was no intentional misconduct by any party, but the Board’s request for documentation from Rio Tinto was a breach of its own procedure manual, and this seriously breached the Petitioner’s right to procedural fairness.

The Court also held that imposing the “balance of probabilities” standard of proof to questions of standing is too rigorous in the context of a preliminary decision, and the Petitioners should only have to demonstrate on a prima facie basis that they were persons aggrieved and therefore entitled to standing.

In addition, the Court clarified that, in reconsidering whether the Trust and the Society are entitled to standing, there is no requirement for the Trust or the Society to demonstrate that one of their members satisfies the definition of a person aggrieved.

Finally, although the Court did not need to address the standard of review to be applied to the Board’s decision because the Court had reached its conclusion based on procedural fairness, the Court concluded that any determination the Board makes regarding standing is entitled to deference from the courts. Therefore, a standard of “reasonableness” should be applied.

Accordingly, the Court directed the Board to reconsider whether the Petitioners established, on a prima facie basis, that they are “persons aggrieved” within the meaning of section 100(1) of the Act, based on the submissions and information that the Board had received as of the date when the written hearing before the Board had concluded.