Decision Date: June 25, 2018

Panel:Alan Andison

Keywords: Environmental Management Act– s. 16; Administrative Tribunals Act – s. 31(1); monitoring plan; emissions; preliminary application; summary dismissal; amend notice of appeal; jurisdiction; abuse of process; grounds of appeal; remedy

In November 2014, Unifor Local 2301 (“Unifor”), Elisabeth Stannus and Emily Toews filed separate appeals against a Letter of Approval issued by the North Region Director (the “Director”), Ministry of Environment (the “Ministry”). 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 located in Kitimat, BC. Unifor is a union that represents approximately 950 workers at the 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. Based on modelling of the predicted dispersion of the sulphur dioxide emissions from the smelter, and scientific information about the potential effects of the sulphur dioxide emissions, the Director had concluded that the increased sulphur dioxide emissions would have no significant adverse effects on human health and the environment.

The permit amendment was the subject of appeals filed by Ms. Stannus and Ms. Toews in 2013. The Board dismissed those appeals in December 2015, after considering extensive evidence regarding the predicted effects of the increased sulphur dioxide emissions (Emily Toews and Elisabeth Stannus v. Director, Environmental Management Act, Decision Nos. 2013-EMA-007(g) & 2013-EMA-010(g)) [Toews and Stannus].

After the appeals of the Letter of Approval were filed, 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 review proceedings, culminating in a decision by the BC Court of Appeal (Unifor Local 2301 v. Rio Tinto Alcan Inc., 2017 BCCA 300 [Unifor 2]). The courts concluded that the Letter of Approval was part of a staged decision-making process for amending the smelter’s permit, and was an appealable “decision” under section 99 of the Environmental Management Act.

After the conclusion of the judicial review proceedings, the Appellants sought to proceed with the appeals of the Letter of Approval. On January 31, 2018, Ms. Stannus and Ms. Toews provided revised Notices of Appeal setting out amended grounds of appeal. Unifor adopted their amended grounds of appeal.

On February 14, 2018, Rio Tinto and the Director applied to strike or summarily dismiss some of the Appellants’ amended grounds of appeal. They submitted that certain grounds of appeal should be struck or dismissed under section 31(1)(a), (c), (f) and/or (g) of the Administrative Tribunals Act (“ATA”), respectively, on the basis that they were outside of the Board’s jurisdiction, an abuse of process, had no reasonable prospect of success, and/or were appropriately dealt with in the Board’s decision in Toews and Stannus regarding the appeals of the permit amendment.

On March 15, 2018, Ms. Stannus applied to further amend the grounds for appeal and remedies sought in her Notice of Appeal. On March 16, 2018, the Director and Rio Tinto objected. On March 27, 2018, Unifor and Ms. Toews adopted Ms. Stannus’ application, and Unifor requested a further remedy that was not included in Ms. Stannus’ application.

The Board offered all parties an opportunity to make submissions on the applications to strike or summarily dismiss certain grounds of appeal, and the applications to further amend the Notices of Appeal.

The Board found that, as stated in Unifor 2, the appeals must be “narrowly focused on the particular impugned decision”, which in this case was the Letter of Approval; the appeals did not lay the smelter’s permit, or the 2013 permit amendment, “open to attacks at large.” Unifor 2 also clarified that the Letter of Approval imposed the requirements in the EEM Plan, pursuant to sections 14(1)(e) and 16(4)(j) of the Environmental Management Act. The Board found that the requirements in the EEM Plan involved the methods and approach for monitoring the actual effects of sulphur dioxide emissions from the smelter, for comparison to the effects that were predicted when the permit amendment was issued, and setting criteria or thresholds at which the impacts of the emissions may trigger mitigation.

Turning to the Appellants grounds of appeal as amended on January 31, 2018, the Board found that some, but not all, of the grounds were: plainly and obviously outside of the Board’s jurisdiction, because they were irrelevant to the subject matter of the Letter of Approval; were an abuse of process because they amounted to an attempt to re-argue matters that the Board decided in Toews and Stannus; and/or, were appropriately dealt with in Toews and Stannus.

Regarding the applications to further amend the Notices of Appeal, the Board found that it was not plain and obvious that it had no jurisdiction over the proposed additional ground of appeal, or that the proposed ground was completely irrelevant to the subject matter of the appeals. The proposed ground of appeal raised complex questions of law, and mixed fact and law, regarding the Appellants’ rights under section 7 of the Charter of Rights and Freedoms, which should be adjudicated as part of the full hearing on the merits of the appeals. Allowing the additional ground to be heard would not adversely affect the other parties’ rights to procedural fairness, and would not unduly lengthen or delay the appeal proceedings. In addition, the Board found that the additional remedies sought by the Appellants were generally within the Board’s jurisdiction to grant.

Accordingly, the applications to strike or summarily dismiss certain grounds of appeal were granted, in part, and the applications to further amend the Notices of Appeal were granted.