Decision Date: August 22, 2014

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 34(3)(b); amendment of Notice of Appeal; additional ground of appeal; reasonable apprehension of bias; application for document disclosure

In July 2014, the Appellants made two applications to the Board. First, the Appellants requested that the Board amend their Notices of Appeal to include a new ground for appeal, which alleged a reasonable apprehension of bias. Second, the Appellants applied for an order requiring Rio Tinto Alcan Inc. (“Rio Tinto”) to produce certain categories of documents pursuant to section 34(3)(b) of the Administrative Tribunals Act, S.B.C. 2004, c. 45.

Rio Tinto opposed both applications.

The two applications were made in relation to appeals filed by the Appellants against a decision (the “Decision”) issued by a delegate of the Director of the Environmental Management Act (the “Director”). The Decision was to amend a permit, which authorized Rio Tinto to discharge effluent, emissions, and waste from an aluminum smelter located in Kitimat, BC. Among other things, the permit amendment allowed an increase in the smelter’s total emissions of SO2. The Appellants’ Notices of Appeal alleged various errors on the part of the Director. The alleged errors mainly related to the Appellants’ concerns with the effects of the increase in SO2 emissions on human health and the environment, and with the Director’s failure to require a SO2 scrubber to be installed as part of the amendment.

In March 2014, the Board granted the Appellants’ request to add a new ground to their Notices of Appeal, which alleged that the Director’s discretion was fettered by a pre-existing agreement between the Province of British Columbia and Rio Tinto.

On July 17, 2014, the Appellants requested that the Board amend their Notices of Appeal to include the following ground for appeal: the Decision under appeal is invalid due to the presence of a reasonable apprehension of bias.

The Appellants submitted that the new ground only arose after the Appellants received disclosure of documents on June 6, 2014. These documents pertained to a Memorandum of Understanding whereby Rio Tinto agreed to fund a Ministry staff position, held by Mr. Frazer McKenzie, to work as a “technical advisor, inspector, and representative of the Director” in relation to the permitting aspects of the smelter modernization project.

Rio Tinto objected to the new ground of appeal that alleged a reasonable apprehension of bias, and submitted that the Board should deny the application to add this ground because it has no reasonable prospect of success.

On July 25, 2014, the Appellants requested that the Board order Rio Tinto to produce certain categories of documents, which are broadly summarized as follows:

1. All communications and correspondence between the authors of the Sulphur Dioxide Technical Assessment Report (“STAR”) and any employees of Rio Tinto, in relation to the preparation of the STAR.
2. All records in Rio Tinto’s possession in relation to the Kitimat smelter modernization project that pertain to aspects of potential sulphur scrubbing technology
3. All records of communications and correspondence between Rio Tinto and the Director concerning Rio Tinto’s application to amend the permit, and three Memorandums of Understanding between the Province and Rio Tinto two of which concern sulphur dioxide permitting, and one of which concerns Rio Tinto’s funding of Frazer McKenzie.

In support of their request for the above mentioned documents, the Appellants submitted that it is likely that these documents will be relevant to the appeals, Rio Tinto is likely to be able to produce the documents, and Rio Tinto has refused voluntary disclosure of the documents, except for those in category 3.

Rio Tinto opposed the Document request, and submitted that the Appellants had not established that the requested categories of documents were relevant. Rio Tinto argued that the probative value of the documents is negligible, and was outweighed by the effort and cost to produce the documents. Further, Rio Tinto argued that the Appellants were engaged in a “fishing expedition” and that the appeals were becoming a “moving target”.

The Board addressed the following two issues. First, whether the Board should grant the Appellants’ application to amend their Notices of Appeal to include a new ground of appeal concerning a reasonable apprehension of bias. Second, whether the Board should grant the Appellants’ application for an order requiring Rio Tinto to disclose the requested categories of documents.

In respect of the first issue, the Board granted the Appellants’ application to add the new ground of appeal. The Board found that the threshold issue in deciding whether to grant an application to add a new ground of appeal was whether the ground was, on a generous reading, within the Board’s jurisdiction. If this threshold is met, the Board found that it must then consider potential prejudice to the other parties in deciding whether to allow a material amendment to the grounds of appeal. In respect of the threshold issue, the Board found that the new ground of appeal was clearly within the Board’s jurisdiction. In respect of potential prejudice concerns, the Board found that the other parties would have adequate time to respond to the new ground of appeal, and that the additional ground of appeal would not significantly lengthen or delay the hearing process.

Further, based on a Supreme Court of Canada decision regarding the test for an apprehension of bias, the Board found that the duty to act fairly applies to subordinates of the ultimate decision maker who “play a significant role in the making of decisions”. As Mr. McKenzie’s role and involvement as an advisor to the Director was not yet fully comprehended by the Board, it found that the new ground of appeal, which alleged a reasonable apprehension of bias, should be decided with the benefit of evidence and full submissions from the parties at the hearing of the appeals.

In respect of the second issue, the Board granted, in part, the Appellant’s application for document production; disclosure of each category of document was ordered, but the scope of each category was narrowed. In deciding this preliminary matter, the Board applied the test set out in Seaspan ULC v. Domtar Inc. (Decision Nos. 2010-EMA-004(a), 005(a), 006(a) and 2011-EMA-003(a), issued June 11, 2013 [Seaspan]. In that appeal, the Board identified the key considerations for ordering document disclosure in a pre-hearing context, as follows: (i) whether it is reasonable to suppose that the requested documents may be relevant to proving or responding to an issue in the appeal, based on the issues raised in the applicant’s Notice of Appeal and (if available) statement of points; (ii) whether the requested documents are admissible; and (iii) whether the person who is being asked to disclose the documents has possession and control.

Accordingly, the Appellants’ application to add the additional ground to their Notices of Appeal was granted, and their application for an order requiring Rio Tinto to disclose certain categories of documents was granted in part.