* Note: This was not a review of an Environmental Appeal Board decision.  An appeal had been filed with the Board but the parties concurrently pursued their remedies through a judicial review application.

The Court’s judgement addressed the question of whether it should decline to adjudicate the issues raised in Imperial’s petition on the grounds that Imperial had an “adequate alternative remedy” in the form of an appeal to the Board.  Ultimately the Court’s decision rendered the appeal to the Board moot.

Decision Date: February 14, 2002

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

Cite: Vancouver Registry No. L012504

Imperial Oil Ltd. (“Imperial”) had requested an Approval in Principle (“AIP”) under the I of a plan to remediate certain lands which were contaminated with hydrocarbons. Imperial brought a petition to the Court alleging that the Respondent withheld the AIP solely because Imperial had not settled civil claims for damages advanced by the owners of lands affected by the contamination. Imperial submitted that this was an irrelevant consideration, and sought an order of mandamus requiring the Respondent to issue the AIP. Imperial also sought a declaration and an order of prohibition against the Respondent on the basis that he had displayed actual bias or that his conduct gave rise to a reasonable apprehension of bias against Imperial. Lastly, Imperial sought a declaration of its right to procedural fairness and natural justice with respect to remediation orders which were issued and then subsequently cancelled by the Respondent. The Respondent opposed the claims on their merits and argued that the Court should decline to exercise its jurisdiction to determine these matters on the basis of mootness, and on the basis that Imperial had an adequate alternative remedy in the form of an appeal to the Environmental Appeal Board.

The Court found that the Respondent’s decision was neither an approval nor a disapproval of the AIP. Rather, he decided that he would issue the AIP if Imperial reached a settlement of the civil claims. The Court concluded that the decision was not one that could be appealed to the Board and, therefore, Imperial did not have an adequate alternative remedy with respect to the request for mandamus. The Court concluded that Imperial was entitled to an order in the nature of mandamus directing the Respondent to issue forthwith the AIP. The Court held that the provisions of the Act do not confer jurisdiction upon the Respondent with respect to tort claims, nor with respect to compensation for anything other than costs of remediation. Therefore, the Respondent’s decision was based on irrelevant considerations. Further, by deciding to issue the AIP on the condition that Imperial reached an agreement with the owners of the lands, the Respondent effectively put them in control of the decision to issue or withhold the AIP. Consequently, the Court held that this constituted an improper delegation and improper fettering of the Respondent’s discretion.

With respect to the issues relating to bias, the Court noted that the decision sought by Imperial would have no practical effect on the rights of the parties because the Respondent had stepped aside as decision-maker, and the remediation orders had been cancelled. Lastly, the Court concluded that it should not exercise its discretion to hear the case despite its mootness. The Court concluded that the declaratory relief sought by Imperial would not have practical utility for the parties.

Accordingly, the Court concluded that Imperial was entitled to an order in the nature of mandamus directing the Respondent to issue forthwith the AIP. The balance of relief sought in the petition was dismissed.