Decision Date: November 27, 2015

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 14(1), 99, 101(1); permit amendment; monitoring plan; emissions; appealable decision; person aggrieved; reconsideration; functus officio

This decision was the Board’s reconsideration of whether an approval of an environmental effects monitoring plan (the “Plan”) was an appealable “decision” as defined in the Environmental Management Act (the “Act”), and if so, whether Elisabeth Stannus and Emily Toews had standing under the Act to appeal the approval of the Plan. The Plan applies to emissions from an aluminum smelter operated by Rio Tinto Alcan Inc. (“Rio Tinto”) in Kitimat, BC. Ms. Stannus and Ms. Toews reside and work in Kitimat.

Rio Tinto was required to prepare the Plan, and implement it once approved, under a condition in a permit amendment that the Director had issued in 2013. The amendment applied to Rio Tinto’s permit authorizing emissions from the smelter. In addition to requiring the Plan, the amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. When the Director approved the Plan in October 2014, the amendment was already the subject of appeals filed by Ms. Stannus and Ms. Toews.

Ms. Stannus, Ms. Toews, and Unifor Local 2301 (“Unifor”), which is a union representing the smelter’s workers, filed separate appeals against the approval of the Plan. Before accepting their appeals, the Board requested submissions from the parties regarding whether the approval of the Plan was an appealable “decision” as defined by section 99 of the Act, and whether the Appellants had standing to appeal as “persons aggrieved” by the Plan under section 100(1) of the Act.

On December 4, 2014, the Board found that the approval of the Plan was not an appealable “decision” as defined by section 99 of the Act (Emily Toews, Elisabeth Stannus, and Unifor Local 2301 v. Director, Environmental Management Act (Decision No. 2014-EMA-003(a), 004(a), 005(a)). Rather, the Board found that the Plan was incidental to, and flowed from, the permit amendment issued in 2013, which had already been appealed by Ms. Stannus and Ms. Toews. Given the Board’s finding that the approval of the Plan was not appealable, it was unnecessary to decide whether the Appellants had standing to appeal the Plan. The appeals were rejected as being outside of the Board’s jurisdiction.

Unifor sought a judicial review of the Board’s December 4, 2014 decision.

In September 2015, the BC Supreme Court set aside the Board’s December 4, 2014 decision as it pertained to Unifor, and remitted the matter back to the Board for reconsideration (Unifor Local 2301 v. British Columbia (Environmental Appeal Board), 2015 BCSC 1592 [Unifor v. EAB]). Specifically, the Court found that the Board’s interpretation of “decision” in section 99 of the Act was unreasonable. The Court held that the approval of the Plan ought to have been considered part of a two-stage decision-making process involving the permit amendment. The Court concluded that the approval of the Plan was part of the permit amendment decision, and therefore, the approval of the Plan was appealable as a “decision” under one of the subsections of section 99 of the Act. The Court did not specify which subsection within section 99 applied.

In accordance with the Court’s directions in Unifor v. EAB, the Board reconsidered its decision regarding Unifor’s appeal of the Plan. On November 16, 2015, the Board concluded that the approval of the Plan was appealable under the same subsection of the Act as the permit amendment (i.e., subsection 99(d)), and that Unifor was a “person aggrieved” by the approval of the Plan under section 100(1) of the Act (Unifor Local 2301 v. Director, Environmental Management Act, Decision No. 2014-EMA-005(b)). Accordingly, the Board had jurisdiction over Unifor’s appeal.

Meanwhile, Ms. Stannus and Ms. Toews asked the Board to reconsider its December 4, 2014 decision rejecting their appeals of the Plan, in light of the decision in Unifor v. EAB. In response, Rio Tinto argued that the Unifor v. EAB decision did not apply to Ms. Stannus and Ms. Toews, and the Board was prohibited from reconsidering its jurisdiction over their appeals on the basis that the Board was functus officio (i.e., had made a final decision on that matter). In addition, both Rio Tinto and the Director argued that Ms. Stannus and Ms. Toews were not “persons aggrieved” by the approval of the Plan within the meaning of section 100(1) of the Act.

First, the Board considered whether it was unable to reconsider its December 4, 2014 decision with respect to Ms. Stannus’ and Ms. Toews’ appeals, on the basis that the Board was functus officio. The Board considered the decision of the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, a leading case on the principle of functus officio. According to that decision, once a tribunal has reached a final decision on a matter, the tribunal cannot afterwards revisit that decision except to correct clerical mistakes or errors arising from an accidental slip or omission, or in other limited circumstances. However, this decision also indicates that the principle of functus officio arose to promote finality of court judgments that may be appealed to an appellate court, and the principle should be applied more flexibly to tribunal proceedings which would only be subject to appeal or review by the courts on questions of law (and not on questions of fact).

Applying those legal principles to the present circumstances, the Board found that functus officio did not prevent the Board from reconsidering its December 4, 2014 decision regarding Ms. Stannus’ and Ms. Toews’ appeals. The Board found that its previous decision was preliminary in nature, and was not a final decision on the merits of the appeals against the Plan. Also, the error of law that the Court identified in Unifor v. EAB applied equally to the appeals filed by Ms. Stannus and Ms. Toews. Ms. Stannus and Ms. Toews would lose their right of appeal to the Board if the Court’s reasoning was not also applied to their appeals, which would be unfair. In any event, the Board found that the Court’s decision in Unifor v. EAB rendered the Board’s December 4, 2014 decision a nullity, which allowed the Board to reconsider its decision with respect to Ms. Stannus’ and Ms. Toews’ appeals against the Plan.

Next, the Board found that the Plan was an appealable “decision” within the meaning of section 99(d) of the Act, for the same reasons that were stated in the Board’s November 16, 2015 reconsideration of Unifor’s appeal against the Plan.

Finally, the Board considered whether Ms. Stannus and Ms. Toews had standing to appeal as “persons aggrieved” by the Plan within the meaning of section 100(1) of the Act. Given that the Court in Unifor v. EAB found that the approval of the Plan was simply the second stage in the decision-making process for the permit amendment, and given that the Board had previously found that Ms. Stannus and Ms. Toews are persons aggrieved by stage one of that decision-making process (i.e. the permit amendment), the Board concluded that they must have standing to appeal the full content of the permit amendment decision, which includes the approval of the Plan.

Accordingly, the Board found that it had jurisdiction over the appeals by Ms. Stannus and Ms. Toews against the approval of the Plan.