Decision Date: May 11, 2001

Panel: Alan Andison

Keywords: preliminary motion; fettering; amendment to a notice of appeal; Environmental Assessment Act

Joan Sell on behalf of the Sierra Club of British Columbia—Quadra Island Group and Don McIvor (the “Applicants”) submitted an application to have the issue of whether the Assistant Regional Waste Manager (“ARWM”) fettered his discretion dealt with as a preliminary matter by way of written submission. They requested that the permit issued to Island Cogeneration Limited Partnership (“Island Cogeneration”) be rescinded and sent back to the ARWM with directions. Reach for Unbleached! supported the application.

The Applicants requested the permit be quashed on the ground that the reasons for the ARWM’s decision to issue the permit show that he fettered his discretion by deferring to the Project Approval Certificate issued to Island Cogeneration under the Environmental Assessment Act instead of exercising his jurisdiction under the Waste Management Act. The Applicants further submitted that the Board should make the decision without allowing the ARWM to adduce new evidence regarding the reasons for his decision.

Counsel for the ARWM submitted that the issue of fettering requires consideration of the entirety of the decision making process and thus should be dealt with at the oral hearing. He also noted that the relief sought by the Applicants was not merely procedural in nature but would decide the appeal. Counsel for Island Cogeneration agreed with these submissions and further submitted that the Board should not consider the issue of fettering because it was not raised in the Applicant’s Notice of Appeal, and that they had not applied to have it amended.

The Board found that it had the authority to amend a notice of appeal at the request of a party or at its own request, so long as it does not prejudice any of the parties. It determined that the issue of fettering raised questions of both law and fact and, as such, required consideration of the whole of the decision making process. Thus, the matter would best be dealt with at a full hearing of the appeal.

The Board also found that parties should not be precluded from presenting additional evidence with regard to the issue of fettering. The Board noted that it has the authority to conduct an appeal as a hearing de novo, which would correct any errors made by the ARWM. Further, the Board found that it may be more efficient and expedient for all of the parties if the appeal were heard in full, rather than hearing the fettering issue alone and risking having to reconvene to hear other issues at a later date.

The Board denied the application.