Decision Date: January 31, 2017

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 34(3)(b); preliminary decision; landfill; closure plan; groundwater

The Greater Vancouver Sewerage and Drainage District (“GVSDD”) appealed a decision by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”), to approve two plans related to the closure of the Cache Creek landfill. Most of the waste discharged to the landfill comes from the Greater Vancouver Regional District (now called Metro Vancouver), but the landfill also receives waste from the Village of Cache Creek (the “Village”) and the Thompson Nicola Regional District. Wastech Services Ltd. (“Wastech”) and the Village operate the landfill pursuant to an operational certificate that includes requirements for the landfill’s closure. Wastech and the Village submitted the closure plans that the Director had approved. The costs associated with the closure plans must be paid by the GVSDD pursuant to a private agreement between Wastech and the GVSDD.

The GVSDD appealed the approval of the closure plans on several grounds. The main issue concerned a proposal in the plans to collect and treat groundwater affected by elevated levels of chloride. The GVSDD submitted that groundwater treatment should not be part of the closure plans, because the landfill is not the source of the elevated chloride, and the chloride level poses no threat to the environment or human health.

Before the appeal was heard, the GVSDD applied to the Board for two orders:

•    a sampling order directing Wastech to provide the GVSDD with certain groundwater and leachate samples, or alternatively, granting access to the landfill and monitoring wells so that the GVSDD could take samples; and

•    a document production order directing the Director, Wastech, the Village, the Bonaparte Indian Band, and the Ashcroft Indian Band to provide the GVSDD with certain documents or categories of documents that the GVSDD had requested but were not disclosed or were only partially disclosed.

After the GVSDD filed the application, the Director provided a list of 68 documents that, he submitted, included all of the documents that he or his staff considered before issuing the approval.

Regarding the request for the sampling order, the Board considered whether it had the jurisdiction to grant such an order based on the language in section 34(3)(b) of the Administrative Tribunals Act. The Board found that its power to order production under that section is limited to things “in the person’s possession or control”. The Board has no jurisdiction to order a person to produce samples that are not already in their possession, or to take samples that do not already exist. Consequently, the Board concluded that it had no jurisdiction to order Wastech to produce samples that did not already exist, or to order that the GVSDD could enter onto property to take samples.

Regarding the request for the document production order, the Board found that the primary considerations in this case were whether the requested documents or categories of documents may be relevant to proving or responding to an issue in the appeal, and whether the party being asked to disclose documents had possession and control of the documents.

The Board denied the request for document production with respect to the Bonaparte Indian Band, the Ashcroft Indian Band, and the Village. The Board found that the GVSDD’s request for documents from them was overly broad, the GVSDD had not established the relevance of the requested documents, or the requested documents overlapped with those requested from the Director and/or Wastech.

Given the Director’s voluntary disclosure of documents, the Board denied the GVSDD’s request with respect to the Director, except for two documents that appeared to be relevant and were not already voluntarily disclosed. In all other respects, the Board found that the Director took reasonable steps to respond to the GVSDD’s request for documents, and was willing to disclose the relevant documents in his possession or control.

Regarding the documents requested from Wastech, the Board found that some aspects of the GVSDD’s request were overly broad or covered documents that were already disclosed by the Director or Wastech. However, the Board ordered Wastech to produce certain categories of documents that appeared to be relevant to the issues in the appeal, assuming that those documents were in Wastech’s possession. Wastech was not obliged to provide data in a form than was different from the form in which it already existed.

Consequently, the application was granted, in part, with respect to the document production order, and the application was denied with respect to the sampling order.