strong>Decision Date: May 15, 2018

Panel: Alan Andison

Keywords: Environmental Management Act – s. 16; Administrative Tribunals Act – s. 14; monitoring plan; emissions; preliminary application; expedited hearing; severance

On November 6, 2014, Unifor Local 2301 (“Unifor”) appealed a Letter of Approval issued by the North Region Director (the “Director”), Ministry of Environment (the “Ministry”). Elisabeth Stannus and Emily Toews also filed appeals against the Letter of Approval. The Letter of Approval approved an Environmental Effects Monitoring Plan (the “EEM Plan”) that Rio Tinto Alcan Inc. (“Rio Tinto”) prepared in relation to air emissions from its aluminum smelter in Kitimat, BC. Unifor is a union that represents approximately 950 workers at the Kitimat smelter. Ms. Stannus and Ms. Toews reside and work in Kitimat.

Rio Tinto was required to prepare the EEM Plan, and implement it once approved, pursuant to a condition in a permit amendment that the Director issued in 2013. The permit amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. The permit amendment was the subject of appeals filed by Ms. Stannus and Ms. Toews in 2013, which the Board dismissed in December 2015 (Emily Toews and Elisabeth Stannus v. Director, Environmental Management Act, Decision Nos. 2013-EMA-007(g) & 2013-EMA-010(g)).

After the appeals of the Letter of Approval were filed in 2014, the Board made a preliminary decision that the Letter of Approval was not an appealable “decision” as defined in section 99 of the Environmental Management Act. The Board’s decision was then the subject of judicial reviews by the BC Supreme Court and the BC Court of Appeal. The courts concluded that the Letter of Approval was an appealable “decision” under section 99 of the Environmental Management Act.

In late 2017, after the conclusion of the court proceedings, the Appellants sought to proceed with the appeals of the Letter of Approval. During a pre-hearing teleconference, the parties agreed that the appeals would be heard in their entirety in May 2019, and the Appellants would have an opportunity to file revised Notices of Appeal.

On January 31, 2018, Ms. Stannus and Ms. Toews provided revised Notices of Appeal, setting out amended grounds for appeal. Unifor adopted Ms. Stannus’ and Ms. Toews’ grounds for appeal as amended on January 31, 2018.

In March 2018, Unifor applied to the Board for an order severing one issue from the other issues in the appeals, and an expedited hearing of that issue in June/July 2018. The Board offered all parties with an opportunity to provide written submissions on Unifor’s application.

First, the Board considered the test for granting an application for the severance and expedited hearing of an issue apart from the other issues in an appeal. Neither the Board’s Rules nor the Administrative Tribunals Act specifically address this type of application, but section 14 of the Administrative Tribunals Act provides the Board with the power to make orders “in order to facilitate the just and timely resolution of an [appeal]”. Based on the language in section 14, the Board found that an order for severance and expedited hearing must at least facilitate the just and timely resolution of an appeal.

The Board also found that further considerations may be relevant when deciding such applications. For example, such an application may be granted when: all parties consent; the issue to be severed and decided in advance is a pure question of law; the parties agree on the relevant facts; and/or, proceeding in that manner will result in efficiencies in deciding the remainder of the appeal. Given that such an order is unusual, and that it is generally fair, efficient and effective to hear all of the issues and evidence regarding the merits of an appeal in one hearing, the Board found that the onus should be on the applicant to show why the application for severance and an expedited hearing should be granted.

Turning to the present application, the Board found that Unifor, as the applicant, had failed to establish that severance and an expedited hearing of one issue could resolve any particular ground(s) for appeal, or could simplify the hearing of the remaining grounds for appeal if the application was granted. The parties had already provided conflicting expert evidence regarding the adequacy of the monitoring station network, and whether there was any urgency to make changes to that network. There was little or no agreement among the parties regarding the facts to be decided. All of those factors weighed against granting the application.

Accordingly, the Board denied the application.