Decision Date: January 31, 2003

Panel: Alan Andison

Keywords: Health Act – s. 8(4); Water Act – ss. 1, definition of “stream”, 9; Sewage Disposal Regulation – ss. 1, definition of “high water mark”, 7(1)(a); Schedule 2 – ss. 1, 2(b), 18, 20; On-Site Sewage Disposal Policy – ch. 4.4; Salinas v. Canada (Minister of Employment and Immigration) (1992), 93 D.L.R. (4th) 631 (Fed. C.A.); Virani v. Dhami, [2002] B.C.J. No. 1019 (S.C.) (Q.L.); application for costs; admission of new evidence; interceptor drain; sewage disposal permit; flood protection; low-rate intermittent sand filter.

Ms. O’Flaherty appealed the decision of the EHO to issue a permit for construction of a sewage disposal system on a waterfront property on Thetis Island. She requested that she be consulted prior to the issuance of further permits. She also requested initially that the permit be rescinded, but withdrew that request at the conclusion of the hearing. After the hearing concluded, the Appellant applied to re-open the hearing in order to introduce new expert opinion evidence.

The Board found that the Appellant lacked a good reason for failing to produce the new evidence in a timely fashion. The Appellant was a sophisticated party with knowledge of the appeal process and Board procedures. The Board concluded that the Appellant was aware, or should have been aware, that this evidence was needed to support her case, and despite her references in pre-hearing correspondence to having consulted lawyers, she chose not to introduce the evidence until after the hearing closed. Although there was no new material factual evidence presented, the Board considered parts of the new evidence that addressed the distance between the proposed interceptor drain and the Appellant’s sewage disposal system.

On the basis of the evidence presented, the Board held that the proposed system will adequately protect public health and the environment. The Board found that the proposed system was designed to ensure that the Appellant’s adjacent property was not flooded and that the system would operate and be maintained in an effective manner given the site conditions and flow of water on the Permit Holder’s property. Both the spacing of the lateral absorption beds and the set-back distance from all wells and interceptor drains are in accordance with the Regulation and are sufficient to protect public health. Furthermore, the Board found that the set-back between the system and the ocean was sufficient to protect the ocean and the foreshore environment.

The Board found that the Appellant’s introduction of new evidence after the hearing had concluded was an abuse of process, delayed the hearing, and resulted in additional costs to the other parties. Accordingly, the Appellant’s request for costs was denied and the Permit Holder’s request for costs was allowed in part.

The Board confirmed the issuance of the permit and dismissed the appeal.