Decision Date: September 13, 2016

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 16(4)(j), 99; Administrative Tribunals Act – s. 31; preliminary decision; permit; jurisdiction; appealable decision; summary dismissal; costs

West Fraser Mills Ltd. and nine other companies in the pulp and paper industry (collectively, the “Appellants”) filed separate appeals against numerous notifications issued by the Regional Director, Environmental Management Act (the “Director”), Ministry of Environment (“Ministry”). The Director sent emails to thousands of permit holders, including the Appellants, notifying them that the Ministry was implementing new reporting processes for permits that authorize the discharge of waste under the Environmental Management Act (the “Act”). One or both of the following notifications was included in the emails:

• a notification requiring annual reports for high priority authorizations to include an annual status form (the “ASF” notifications); and
• a notification requiring non-compliance reporting to be submitted electronically to the Ministry (the “NCR” notifications).

Approximately 3,209 permit holders were notified of the Ministry’s plan to alter the format of non-compliance reporting, and 182 permit holders were notified of the plan to implement the ASF as part of their routine annual reporting. Each of the Appellants appealed one or both of the notifications that pertained to their permits.

After the appeals were filed, the Director raised a preliminary issue regarding whether the ASF and NCR notifications were appealable “decisions” under section 99 of the Act. If the ASF and NCR notifications were not “decisions” as defined under section 99, then the Board had no jurisdiction over the appeals.

A total of 95 appeals were before the Board: 27 appeals against the ASF notifications; and 68 appeals against the NCR notifications. The parties agreed that, if the Board found that the notifications were appealable decisions, 28 of the 95 appeals should not continue to a hearing on the merits. However, the parties disagreed on the reasons why those appeals should not continue, and the appropriate remedy if the appeals did not continue.

The Director argued that the notifications were not appealable “decisions”, as they were administrative in nature, and merely addressed the method by which any existing reporting requirement in a permit was to occur. In addition, the Director submitted that the notifications only applied if a permit already contained the relevant reporting requirement, and therefore, 28 appeals (5 appeals of NCR notifications and 23 appeals of ASF notifications) ought to be struck.

The Appellants submitted that the notifications were appealable under section 99(b) of the Act because they contained the “imposition of a requirement”. The Appellants argued that the notifications changed the manner of reporting and, in some cases, required additional information to be provided that was not otherwise required by the permit. Further, the Appellants submitted that the decisions were made by a statutory decision-maker under the legislation. The Appellants disagreed that 28 of the appeals ought to be struck on the basis that the notifications did not apply to those permits; rather, the Appellants proposed remedies other than striking the appeals.

The Appellants also advised that they would be seeking costs from the Director with respect to any appeals that were filed unnecessarily, and potentially for all of the appeals. The Director objected to the application for costs.

First, the Board considered whether the notifications contained the “imposition of a requirement” under section 99(b) of the Act. The Board reviewed the language in the notifications and the documents that were attached to them. The Board found that the notifications imposed requirements that changed the manner of reporting that was required in many of the permits. For some permits, the notifications also imposed requirements for the Appellants to provide the Ministry with information that their permits did not already require them to provide. Although the Director may have intended the notifications to simply change how the Appellants would carry out pre-existing reporting requirements under their permits, the Board found that the changes were substantive in nature, and not simply administrative. The Board also found that, in issuing the notifications, the Director was acting under section 16(4)(j) of the Act by changing or imposing requirements in the Appellants’ permits “to report information specified by the director in the manner specified by the director.” Consequently, the Board concluded that the notifications were appealable decisions because they contained the “imposition of a requirement” under section 99(b) of the Act.

Next, the Board considered whether certain appeals ought to be dismissed because the notifications do not apply to some permits. The parties agreed that, of the 68 NCR notifications that were appealed, five related to permits that contained no non-compliance reporting requirement. The Board found that the NCR notifications should not have been issued in relation to those permits. Had the Director reviewed those permits before issuing the NCR notifications, the notifications would not have been issued and these appeals could have been avoided. The Board found that the appropriate remedy was to reverse the decisions to issue those NCR notifications, and allow the five appeals. The parties also agreed that 23 of the 27 appeals of ASF notifications should not continue. The Board found that the Director had acknowledged that the ASF notifications did not apply to 23 of the permits. As such, the Board found that the ASF notifications should not have been issued in relation to those permits, and the appropriate remedy was to reverse those ASF notifications and allow those 23 appeals.

Finally, the Board found that the Appellants had not yet made a proper application for costs, and therefore, even in regard to the appeals that were allowed, it was premature for the Board to decide whether costs should be ordered.

In conclusion, the Board found that it had jurisdiction over the appeals, and 28 of the 95 appeals were allowed.