Decision Date: November 10, 2014

Panel: Alan Andison

Keywords: application; amendment of a Notice of Appeal; amendment of statement of points; additional expert reports; additional expert witnesses

On October 16, 2014, the Appellants filed an application requesting that the Board accept an amendment to their Notices of Appeal. The Appellants sought to expand the description of the decision that they were appealing, and add to the list of remedies they were seeking. The requested amendments related to a Sulphur Dioxide Environmental Effects Monitoring plan (“EEMP”) for an aluminum smelter that Rio Tinto Alcan Inc. (“Rio Tinto”) operated in Kitimat, BC. In October 2014, the EEMP was approved by a delegate of the Director, Environmental Management Act (the “Director”), Northern Region – Skeena, Ministry of Environment (the “Ministry”). The EEMP was prepared pursuant to the Director’s decision to amend a multimedia permit (the “Permit”) held by Rio Tinto. The Permit amendment authorized Rio Tinto to discharge effluent, emissions, and waste from its aluminum smelter located in Kitimat, BC.

The Appellant had previously appealed the Director’s decision to amend the Permit. Those appeals had been scheduled to be heard starting in October 2014, but the hearing was adjourned to December 2014. The Appellant’s primary concern was that the Permit amendment would increase the smelter’s maximum allowable SO2 emissions from 27Mg/day (tonnes per day) to 42 tonnes per day. In relation to the increased SO2 emissions, the Permit amendment required Rio Tinto to develop an environmental effects monitoring plan. In accordance with this requirement, on October 7, 2014, Rio Tinto submitted, and received approval for, the EEMP from the Director.

The specifics of the Appellants’ application were as follows. The Appellants sought to amend their Notices of Appeal by adding the Director’s decision to approve the EEMP under the heading “Details of Decision to be Appealed”. Further, the Appellants sought to expand the list of remedies in their Notice of Appeal, by adding certain remedies that pertained to the Director’s approval of the EEMP.

In the alternative, the Appellants sought to file separate appeals against the Director’s approval of the EEMP, and to consolidate those new appeals with their existing appeals against the amendment of the Permit.

In the further alternative, the Appellants requested that the Board dismiss their application “without prejudice” to them raising issues about the EEMP in their existing appeals, and making applications for orders compelling document disclosure in relation to the preparation and finalization of the EEMP.

Related to their application, the Appellants sought to amend their statement of points, file six new expert reports, and they provided notice that they intended to have two additional expert witnesses testify at the hearing of their existing appeals.

The Director and Rio Tinto both objected to the Appellants application. Alternatively, Rio Tinto requested additional time to file responding expert reports, and stated that it “continue[s] to reserve the right to seek its costs against the appellants”.

In reply, the Appellants submitted that Rio Tinto should not be given additional time to file responding expert reports, and that the Board should: “dismiss RTA’s [Rio Tinto’s] present application for costs summarily;” “confirm that RTA’s [Rio Tinto’s] application for costs is completely without merit;” and, “order RTA [Rio Tinto] to refrain from raising the issue of costs until the conclusion of this appeal.”

The Board found that the application and reply submissions gave rise to three issues. The first issue was whether the Board should grant any of the relief requested in the Appellants’ application, and the associated requests to amend their statement of points, file six additional expert reports, and have two additional expert witnesses testify. If the first issue was answered in the affirmative, the second issue was whether the Board should grant Rio Tinto’s request for additional time to file responding expert reports. The third issue was whether the Board should make the orders or decisions requested by the Appellants regarding an application for costs by Rio Tinto.

In respect of the first issue, the Board first considered the three alternative forms of relief sought by the Appellants. The first form of relief was an amendment to the Appellant’s Notice of Appeal. The second form of relief was the filing of two new appeals against the approval of the EEMP, which the Appellants asked to be heard at the same time as the existing appeals. The third form of relief was for the Board to simply dismiss the application without prejudice to the Appellants’ ability to raise issues relating to the EEMP, or to the Appellants’ future applications for document disclosure in relation to the EEMP. The Board found that it was appropriate to grant the third form of relief only. The Board did not grant the second form of relief as none of the parties fully addressed the issue of whether the EEMP was an appealable decision. On this point, the Board further noted that other persons may have standing to appeal the approval of the EEMP, and that the outcome of the appeals of the Permit amendment may render the appeal of the EEMP moot. The Board found that it was unnecessary to grant the third form of relief as the Board found that the EEMP appeared to be relevant to the grounds of appeal that were already included in the Appellants Notices of Appeal. However, the Board cautioned that its findings concerning the relevance of the EEMP were not binding on the Panel that would hear the appeals.

The Board then considered the Appellants requests to amend their statement of points, file six additional expert reports, and call two additional expert witnesses. The Board stated that no party is entitled to amend their statement of points or file new expert reports simply because a hearing is postponed or adjourned. The Board further stated that it must consider the other parties’ rights to procedural fairness, whether the other parties will have adequate time to respond, and whether these requests may unduly lengthen the hearing. The Board found that Rio Tinto and the Director would have sufficient time to prepare responding arguments and expert reports, as five weeks remained before the hearing was scheduled to begin. The Board also noted that the Appellants application and associated requests were submitted over 60 day before the hearing was scheduled to begin. The Board found that the Appellants additional arguments and evidence regarding the approval of the EEMP would not unduly lengthen the hearing. The Board noted that the six additional reports were relatively brief, and that the two additional expert witnesses may provide relevant evidence that may be of assistance to the Panel. The Board emphasized that this finding had no bearing on whether or to what extent the Panel may decide that such evidence was relevant and admissible.

In respect of the second issue, the Board found that, in all of the circumstances, that it was reasonable to allow Rio Tinto to have additional time to file responding expert reports. The Board gave Rio Tinto until November 28, 2014, rather than November 15, 2014, the deadline argued for by the Appellants. The Board noted that the November 15, 2014 deadline would only provide the Rio Tinto with four business days from the issuance of the decision to prepare responding expert reports. The Board also noted that the Appellants had been granted numerous preliminary application requests, and that there was no indication that the Appellants would be prejudiced if Rio Tinto was given until November 28, 2014.

In respect of the third issue, the Board denied the requests made by the Appellants in regard to Rio Tinto’s application for costs. The Board found that the Appellants misconstrued or misunderstood Rio Tinto’s letter regarding costs. The Board found that Rio Tinto did not apply for an order of costs against the Appellants. Rather, the Board found that Rio Tinto “reserve[d]” the right to seek costs, and asserted that special circumstances existed in the present case, which would warrant an award of costs in the future.

In summary, the Appellants’ application to amend their Notices of Appeal, or alternatively, file two new appeals, were denied on the basis that the approved EEMP appeared to be relevant to the existing appeals of the Permit amendment. The Appellants’ associated requests to amend their statement of points, file six additional expert reports, and provide notice of two new expert witnesses were granted.

The Board ordered that Rio Tinto and the Director were to be given until November 28, 2014, to file any responding expert reports.

Finally, the Appellants’ request in regard to Rio Tinto’s letter regarding costs was denied.