Decision Date: July 31, 2003

Panel: Alan Andison, Fred Henton, David Ormerod

Keywords: Environmental Management Act – s. 11(14.2); Sewage Disposal Regulation, – ss. 3.2, 3.3, Schedule 5; application for costs

Christine and Dan Webb, Waco and Kim Wallace, Alex and Clover Quesnel, Gordon and Carol Webb, and Kevin King (the “Applicants”) filed joint appeals against the decision of the Environmental Health Officer to issue three sewage disposal permits.  After the appeals were allowed in part, on the basis of a failure by No. 3 V.C. Ventures Ltd. (the “Permit Holder”) to post notice of the permit, (Appeal No. 2002-HEA-030/031/032, February 12, 2003), the Applicants applied for costs against the Permit Holder.  Christine and Dan Webb also applied for “damages” against the Vancouver Island Health Authority, on the basis that the permitted sewage disposal systems would cause the Webb’s domestic well to become contaminated.

The Permit Holder argued that the Board had no jurisdiction to impose punishment under the guise of costs, any costs should reflect apportionment based on success in the appeal, and that the Board came to the conclusion the Permit Holder had intentionally failed to post notice without giving it a chance to submit evidence to the contrary.

The Board found that its findings in the decision on the merits of the appeal with regard to the failure to post notice of the permits, were supported by the evidence that was provided during the hearing, and the new evidence concerning the Permit Holder’s failure to post was only relevant to the application for costs.  The Board further found that it has the authority to award costs to discourage the misconduct of litigants, that the failure to post notice was not a mere technicality, and that the Appellant’s success on that ground for appeal deserved substantial consideration when deciding whether to award costs.

Although the Board ultimately found that the Permit Holder breached a mandatory statutory requirement by failing to post notice, the Board found that this failure was not the result of wilful misconduct by the Permit Holder.  The Board also found that the Applicants had not been prejudiced by the failure to post notice, and that costs were not warranted by the Applicants’ success on only one ground of appeal.

The Board rejected the Webbs’ application for costs or “damages” from the Vancouver Island Health Authority because it had already determined that the sewage disposal systems would protect public health.

Accordingly, the Board denied the application for costs.