Decision Date: February 6, 2004

Panel: Alan Andison

Keywords: Waste Management Act – s. 46; de novo; true appeal; application to conduct a hearing on the record;

Imperial Oil Limited (“Imperial”) filed separate appeals of a final determination of a contaminated site and a remediation order, both of which were issued by the Regional Manager.  The Third Parties also filed appeals of the remediation order.  The Board decided that it would hear all of the appeals together.  Imperial applied for an order to have its appeals conducted as appeals for reversible error on the record (“true appeals”), rather than a hearing de novo.

The issues in these applications were: whether the Board had the discretion to hear an appeal as a true appeal as opposed to a hearing de novo; if so, what were the relevant factors to be considered in the exercise of discretion; and, whether the appeals should be heard as a true appeal as opposed to a hearing de novo.

The Board held that the Environment Management Act and the Waste Management Act provide the Board with the discretion to hear an appeal as a true appeal, an appeal de novo, or a hybrid of the two.  The Board found that the hybrid process was generally the most effective method for hearing the majority of appeals, but noted that it was not confined to one specific process.

The Board held that the following factors were to be considered in the exercise of this discretion:  1) Are there any practical impediments to the Board hearing the appeals in the manner sought? 2) Do the grounds of appeal and the remedy sought warrant one form of hearing over the other? 3) Will the hearing procedure provide all parties with a fair opportunity to be heard and to present relevant evidence?  In addition, the Board found that these factors were to be balanced against the following broad policy factors:  1) Will the form of hearing requested have any impact on the goals or objectives of the relevant legislation? 2) Will the form of hearing raise issues of “judicial economy”?

The Board held that the appeals should not be heard as true appeals, in the circumstances.  The Board found that holding a hearing on the record in this case would not be expeditious or cost effective.  The Board also found that Imperial’s appeals should be heard as a new hearing, joined with the other appeals.  Although a joint hearing of these appeals would be costly, the issue of cost cannot override the enabling legislation, which gives all parties the opportunity to adduce any evidence or argument they believe is relevant to their interest.

The applications were denied.