Decision Date: October 31, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 99, 100(1); Recycling Regulation – ss. 5, 13; Electronic Products Recycling Association policy; recycling depot; consumer surrendered electronics; pollution prevention hierarchy; appealable decision

Randy Wells appealed the contents of an email (the “Email”) dated August 20, 2014 from the Executive Director, Ministry of Environment (the “Director”). The Email responded to a complaint made by Mr. Wells in relation to the Electronic Products Recycling Association’s (“EPRA”) compliance with the Recycling Regulation (the “Regulation”) under the Environmental Management Act (the “Act”).

Prior to accepting the appeal, the Board requested submissions from the parties on a preliminary issue of jurisdiction; specifically, whether the Email contained an appealable “decision” under section 99 of the Act.

The Email was written in response to a complaint from Mr. Wells, which alleged that the EPRA’s policy of limiting public access to consumer surrendered electronics at recycling depots did not comply with the Recycling Regulation, and specifically the pollution prevention hierarchy, because the policy resulted in some electronics being recycled rather than reused. Mr. Wells wrote his complaint after a recycling depot, following the EPRA’s policy, refused to provide Mr. Wells’ son with used televisions at the depot. Mr. Wells’ son had requested the televisions for the purpose of practicing his trade-skills in electronic component repair. As a remedy, Mr. Wells asked the Director to “pressure the EPRA to comply” with the Regulation.

In the Email, the Director explained to Mr. Wells that the “EPRA limits reuse at collection depots and the ability for the public to acquire consumer surrendered electronics … due to a variety of information security, health, and safety concerns”. The Director went on to suggest alternative means for Mr. Wells’ son to access used electronics, specifically through EPRA approved reuse organizations, and stated that the EPRA was “in compliance with the requirements of the Regulation.”

Mr. Wells filed a Notice of Appeal in relation to the contents of the Email.

The Board found that, prior to hearing the appeal, the primary issue to be decided was the Director’s Email contained an appealable “decision” within the meaning of section 99 of the Act.

Mr. Wells submitted that the Email contained an appealable decision under section 99 of the Act, and that the Board had jurisdiction to hear the appeal. However, Mr. Wells did not provide argument in support of his position, nor did he specify which subsection of section 99 was engaged.

The Director submitted that the Email did not contain an appealable decision, and that the Board had no jurisdiction over the subject matter of the appeal. In support of this position, the Director submitted that section 99 of the Act requires a positive act pursuant to a statutory power in order to constitute an appealable provision, and, in this case, the Director did not exercise a specific statutory power.

The Board found that no positive act was exercised by the Director in his Email that would constitute a specific exercise of statutory power under section 99. The Board found that in order for the contents of the Email to constitute an appealable decision, the Director must have performed, or refused to perform, one of the actions described in subsection 99 of the Act. The Board found that the Director’s statements and conclusions in the Email did not fall within the ambit of any of the subsections of section 99. The Board specifically considered whether the contents of the Email constituted “exercising a power” under section 99(c), and found that they did not, as the wording in this subsection included only positive actions made by the Director, and did not include negative actions.

The Board further noted that the Email was an explanation, not the exercise of a statutory power, and found that it was not the intention of the legislature to subject such correspondence to a right of appeal.

Accordingly, the appeal was dismissed for lack of jurisdiction.