Decision Date: July 27, 2018

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 16(1)(b), 16(4); Administrative Tribunals Act – ss. 31(1)(f), 40; permit amendment; air emissions; application for summary dismissal; evidence

Atlantic Power Preferred Equity Ltd. (“Atlantic”) applied to the Board for summary dismissal of six appeals that were filed against a decision to amend its air emissions permit. Atlantic owns and operates a biomass-fired electricity generating facility in Williams Lake, BC. The facility uses various types of wood waste as fuel. Atlantic’s permit authorizes the discharge of certain emissions to the air from the facility.

In October 2015, Atlantic applied for an amendment to its permit, so that up to 50% of the facility’s fuel could be rail ties treated with creosote. Previously, only 5% of the fuel could be rail ties. As part of the application process, Atlantic engaged in a public notification and consultation process. In response, members of the public, including some of the Appellants, provided comments regarding the potential adverse effects on human health and the environment from burning rail ties.

In September 2016, the Director, Environmental Management Act (the “Director”), Ministry of Environment, granted Atlantic’s application for the permit amendment, subject to certain conditions. In addition to allowing up to 50% of the facility’s fuel to be rail ties, the amendment also resulted in new emission limits for certain air contaminants including hydrogen chloride and hydrogen sulphide.

The Appellants filed separate appeals against the permit. The appeals were initially scheduled to be heard at an oral hearing. Prior to the oral hearing, the parties provided Statements of Points outlining the arguments and evidence they intended to present at the hearing. In addition, the Director and Atlantic provided notice of their intentions to call expert witnesses, and provided copies of their expert reports.

Subsequently, at the appellants’ request, the Board decided to hear the appeals based on written submissions instead of an oral hearing. Before the Appellants filed their written submissions, Atlantic advised that it intended to rely on, and tender as evidence, numerous documents that were previously disclosed with Atlantic’s Statement of Points and notice of expert evidence.

After the Appellants filed their written submissions, Atlantic requested that the Board dismiss the appeals on the basis that: (1) the Appellants had failed to introduce any evidence from which a reasonable trier of fact could find in the Appellants’ favour; or, (2) there was no reasonable prospect that the appeals would succeed, pursuant to section 31(1)(f) of the Administrative Tribunals Act. Atlantic submitted that the documents that the Appellants relied on were either not evidence, were inadmissible, and/or were insufficient to meet the burden of proof. Among other things, Atlantic submitted that some of the Appellants purported to give expert opinion evidence, yet the Appellants were not qualified as expert witnesses. In addition, Atlantic submitted that the Appellants referred to documents that purported to give expert evidence, but the Appellants failed to provide proper notice of expert evidence. Atlantic maintained that the Appellants were obligated to provide expert evidence to support their appeals, given the technical nature of the issues to be decided.

In deciding whether to grant Atlantic’s application, the Board first considered whether the Appellants had provided information that, on its face, had the potential of proving at least some of the facts asserted in their written submissions, such that the Board should continue with the appeal hearing. In deciding that issue, the Board had to address whether the documents that the Appellants relied on were admissible as evidence. The Board noted that section 40 of the Administrative Tribunals Act provides the Board with broad discretion to accept information as evidence, regardless of whether it would be admissible in court. Although the Appellants referred to documents that were disclosed with the other parties’ Statements of Points and notices of expert evidence, the Board found that the Appellants had obtained most of the documents through public sources. In addition, Atlantic had advised that it intended to rely on, and tender as evidence, many of the documents that were disclosed with its Statement of Points and notice of expert evidence. As such, the Board held that the Appellants could rely on those documents.

Moreover, although some of the documents that the Appellants relied on were technical in nature, and none of the Appellants claimed to be offering expert opinion evidence, the fact that the Appellants were not qualified as expert witnesses did not preclude them from commenting or making submissions on technical documents. In addition, the Board found that the Director and Atlantic had ample opportunity to review and respond to the Appellants’ documents and submissions. In the circumstances, the Board concluded that there was no prejudice to the other parties if the documents that the Appellants relied on were admitted as evidence. To the extent that there were concerns about the reliability of some of the documents, the Board could take that into account later, in assessing how much weight to give the evidence when deciding the merits of the appeals.

Next, the Board considered whether the appeals should be summarily dismissed pursuant to section 31(1)(f) of the Administrative Tribunals Act on the basis that there is no reasonable prospect the appeals would succeed. The Board found that the onus was on Atlantic, as the applicant for summary dismissal, to establish that the Appellants’ evidence and arguments were insufficient to take the appeals “out of the realm of conjecture”. The Board found that the Appellants did not simply express concerns, without any evidentiary support, about the potential effects of the permit amendment on human health and the environment. The Appellants’ evidence was sufficient to take the appeals out of the realm of conjecture. The Board concluded that it should proceed to assess the merits of the appeals.

Accordingly, the preliminary application to dismiss the appeals was denied.