Decision Date:  April 3, 2009

Panel:  Alan Andison

Pacific Northwest Raptors Ltd. (“PNWR”) appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Program, Vancouver Island Region, Ministry of Environment (the “Ministry”), refusing PNWR’s application for a special permit to rehabilitate a juvenile male bald eagle.

PNWR operates a falconry centre for commercial and educational purposes.  PNWR holds permits that authorize its commercial and educational activities. One of those permits also allows PNWR to temporarily hold or care for injured raptors for a maximum of two weeks. PNWR applied for the special permit so that PNWR could hold the eagle for a longer period of time while rehabilitating it using “free flying” falconry techniques.

In February 5, 2009, the Regional Manager denied the permit application on the basis that Ministry policy is to issue such permits only if a designated wildlife rehabilitation centre, zoo, or permitted wildlife research project is not available to care for the animal, and in this case, a designated wildlife rehabilitation centre had space for the eagle and would provide a flight pen environment for rehabilitation.

PNWR appealed the Regional Manager’s decision, and requested a stay of the decision until the Board could decide the merits of the appeal.

On February 13, 2009, the Board denied the application for a stay (Decision No. 2009-WIL-002(a)).

On February 16, 2009, PNWR advised the Board that the eagle was no longer in PNWR’s possession, as it had returned to the wild. In spite of this, PNWR advised that it would like to proceed with the appeal. PNWR submitted that the appeal should proceed because the same type of situation would likely recur in the future.

The Board applied the test for mootness set out in Borowski v. The Attorney General of Canada, [1989] 1 S.C.R. 342.  The Board found that there was no “live controversy” between the parties because the eagle was no longer in PNWR’s possession. The Board also held that its authority is limited to the decision under appeal, and therefore, it has no authority to make orders affecting future decisions by the Regional Manager. Moreover, if PNWR applies for a permit in the future, and if PNWR is not satisfied with the decision on that application, PNWR may file an appeal with the Board.

In addition, the Board noted that, although there have been cases where the Board has found an appeal moot but provided some guidance to the parties for future reference, this has normally occurred when the issue of mootness was identified after the hearing had taken place, and where in the interests of judicial economy, the Board was in a position to comment. However, in the present case, no submissions on the merits of the appeal had been filed and no hearing has commenced before the appeal became moot.

Accordingly, the appeal was dismissed.