Decision Date: February 5, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 14, 100(1), 102(2), 103; preliminary decision; application to summarily dismiss an appeal; application to strike grounds for appeal; application for security for costs; jurisdiction; permit; contaminated soil; landfill; drinking water

Cobble Hill Holdings Ltd. (the “Cobble Hill”) applied to the Board for an order dismissing an appeal filed by Ronald Witherspoon, as well as an order striking certain grounds for appeal from the Notices of Appeal filed by Cowichan Valley Regional District (the “Regional District”), John and Lois Hayes, and Richard Sanders. Cobble Hill submitted that the subject matter of Mr. Witherspoon’s appeal, and the specified grounds for appeal set out in the other Notices of Appeal, were beyond the Board’s jurisdiction in deciding their appeals against a permit held by Cobble Hill. Cobble Hill did not challenge the grounds for appeal raised by the Shawnigan Residents Association (the “Association”).

Additionally, Cobble Hill applied for an order requiring the Regional District to post security for costs in relation to the appeals, pursuant to section 95(1) of the Environmental Management Act (the “Act”).

The permit was issued in August 2013 by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”), under section 14 of the Act. The permit authorizes Cobble Hill to operate a soil treatment and landfill facility on Cobble Hill’s property located approximately five kilometres south of, and upslope from, Shawnigan Lake. The permit authorizes Cobble Hill to deposit and bury up to 100,000 tonnes of contaminated soil per year, and to discharge storm water and treated effluent to an ephemeral stream that flows into Shawnigan Creek, which eventually flows into Shawnigan Lake. The Shawnigan Lake watershed is a source of drinking water for many people, and the Regional District operates water supply systems in the watershed.

In 2013, the Association, Mr. Witherspoon, the Regional District, Mr. and Mrs. Hayes, and Mr. Saunders appealed the permit.

In its application to strike, Cobble Hill argued that all of the grounds for appeal raised by Mr. Witherspoon, and some of the grounds for appeal raised by the Regional District, Mr. and Mrs. Hayes, and Mr. Saunders, were beyond the scope of the Act, and therefore, were beyond the scope of both the Director and the Board. The grounds included issues such as the permit’s alleged adverse impact on property values, and alleged conflict with a municipal land use zoning bylaw.

First, the Board considered the appropriate test for deciding applications to strike. The Board adopted the “plain and obvious” test that is used by the courts: whether, on a generous reading of a Notice of Appeal, it is plain and obvious that the appeal, or the ground for appeal, is beyond the Board’s jurisdiction. In particular, the Board found that this test appropriately establishes a high threshold for applications to strike, given that such applications are heard as a preliminary matter, and appellants often are not represented by legal counsel. The Board noted that it could result in significant unfairness to strike an appeal or a ground for appeal unless it is plain and obvious that the appeal or ground for appeal is not within the Board’s jurisdiction.

Next, the Board considered the nature of its jurisdiction in relation to an appeal of a permit issued under section 14 of the Act. In general, the parties agreed that the issues to be decided in such an appeal are limited to those that could have been addressed by the Director, and that the Board’s ability to conduct an appeal as a “new hearing” under section 102 of the Act does not expand its jurisdiction. However, the parties disagreed on the range of factors that may be considered under section 14 of the Act. Section 14 provides that a “director may issue a permit authorizing the introduction of waste into the environment subject to requirements for the protection of the environment that the director considers advisable. The Board noted that the Act defines “environment” as meaning “air, land, water and all other external conditions or influences under which humans, animals and plants live or are developed.” The Board found that the Act’s definition of “environment” does not include topics such as “consequences to a community’s livelihood”, or “social matters”.

With those findings in mind, the Board then considered the grounds for appeal in each of the appeals that were the subject of Cobble Hill’s applications to strike.

Regarding Mr. Witherspoon’s appeal, the Board found the, even on the most generous of interpretations, his grounds for appeal raised issues that are not within the jurisdiction of the Director or the Board in relation to a permit issued under section 14 of the Act. Mr. Witherspoon’s grounds for appeal focused on the potential adverse impact of the permit on property values, and the resulting economic losses for property owners in the area, regardless of whether there is a risk of the permit causing contamination. The Board found that no reasonable interpretation of section 14 of the Act would allow the impact of a permit on property values to be considered as part of the process of deciding whether to issue a permit. Thus, no part of Mr. Witherspoon’s appeal was within the Board’s jurisdiction.

Regarding the other three appeals, the Board found that some, but not all, of the impugned grounds for appeal were beyond the Board’s jurisdiction in deciding the appeals of the permit.

Specifically, the Board found that it has no jurisdiction to consider whether the permitted activity complies with the land use zoning for the land where the facility is located. The enforcement of zoning bylaws is a matter for the municipality or regional district that created the bylaw, and disputes over the interpretation of zoning bylaws are within the jurisdiction of the courts. Consequently, this ground of appeal was struck from the Notices of Appeal filed by Mr. and Mrs. Hayes, the Regional District, and Mr. Sanders.

Also, the Board found that it has no jurisdiction to consider whether the Director should have considered alternate sites for the facility, or should have considered public opposition to the proposed facility. The Board found that the Director was obligated to consider the permit application that was before him based on its merits, and he had no jurisdiction to refuse the permit based on the possibility that another site might be possible, or that some members of the public opposed the proposal. These grounds for appeal were struck from Mr. Sanders’ Notice of Appeal. Mr. Sanders’ ground for appeal with respect to the impacts of the permit on property values and the housing market were also struck, for the same reasons that Mr. Witherspoon’s appeal was struck.

Finally, the Board found that the purpose of an order for security for costs is to protect a party from the possibility that it will be unable to recover its costs from its opponent(s) if it is ultimately successful in an appeal. The Board found that the Regional District was pursuing its appeal for proper purposes, and its grounds for appeal were not frivolous or vexatious. Moreover, the Regional District advised that it would be able to satisfy any award for costs that may be made at the conclusion of the appeal. For those reasons, the Board decided that the circumstances did not warrant an order requiring the Regional District to post security for costs.

Accordingly, the Board granted Cobble Hill’s application for an order striking Mr. Witherspoon’s appeal in its entirety. The Board granted, in part, Cobble Hill’s application for an order striking certain grounds of appeal from the Notices of Appeal filed by Mr. and Mrs. Hayes, the Regional District, and Mr. Sanders. The Board denied Cobble Hill’s application for an order requiring the Regional District to post security for costs.