Decision Date: August 25, 2010

Panel: Alan Andison

Keywords:  Environmental Management Act – ss. 53, 99, 100; Imperial Oil Ltd. v. Ron Driedger, 2002 BCSC 219; preliminary decision; appealable decision; jurisdiction

455161 BC Ltd. (the “Appellant”) appealed a response issued by the Director, Environmental Management Act, Ministry of Environment, to the Appellant’s application for a certificate of compliance (“Certificate”).  The Appellant applied for a Certificate in May 2007, in relation to remediation conducted at the Appellant’s property in Westbank, BC.

Before accepting the appeal, the Board requested submissions from the parties on the question of whether the Director’s response constitutes an appealable “decision” as defined in section 99 of the Environmental Management Act (the “Act”).

The Appellant submitted that the Director and his representatives had advised it several times since 2007 that the Director would neither reject nor approve the application for a Certificate unless the Appellant agreed to remediate certain property adjacent to the Appellant’s property.  The Appellant submitted that, although the Director refused to formalize that requirement in the form of a condition in a Certificate, the Director’s response amounted to either “exercising a power” under section 99(c) of the Act, or “imposing a requirement” under section 99(b) of the Act.

The Director submitted that there had been no approval or refusal of a Certificate, and the appeal should be dismissed for lack of jurisdiction because no appealable “decision” had been made.

The Board confirmed that the meaning of the acts or refusals to act referred to in the definition of “decision” in section 99 of the Act must be found in the provisions of the Act, as held in previous decisions of the Board and in the BC Supreme Court’s decision in Imperial Oil Ltd. v. Ron Driedger, 2002 BCSC 219.  On review of section 53 of the Act, the Board found that the Director was authorized to “withhold” a Certificate in certain circumstances pursuant to section 53(5), and to “impose a requirement” as a precondition to issuing a Certificate pursuant to section 53(3)(a)(iv).  The Board also noted that section 53(1) refers to actions taken under section 53 as “exercising powers and performing duties”.  Based on the evidence of communications from the Director’s legal counsel to the Appellant, the Board concluded that the Director’s response to the Appellant’s application for a Certificate was an appealable decision because it amounted to either “imposing a requirement” within the meaning of section 99(b) of the Act, or “exercising a power” within the meaning of section 99(c) of the Act.  However, the Board made no findings on whether the Director had the jurisdiction, based on the facts in this case, to either impose a requirement or withhold a Certificate, because those questions went to the merits of the appeal and could not be decided in a preliminary proceeding.

Accordingly, the appeal was accepted as being within the Board’s jurisdiction.