Decision Date: November 29, 2019

Panel: Darrell Le Houillier

Keywords: Administrative Tribunals Act – s. 47; contaminated site; remediation plan; independent remediation; summary dismissal; costs

In 2017, the Gibsons Alliance of Business and Community Society and Marcia Timbres (the “Appellants”) appealed a letter (the “2017 Letter”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy, to The George Gibsons Development Ltd. (the “Developer”). The 2017 Letter pertained to the Developer’s proposed plan for remediating a contaminated site located on the waterfront in Gibsons, BC. The Developer owns part of the site and wants to develop it.

The Appellants appealed certain aspects of the 2017 Letter. Among other things, the Appellants were concerned that the 2017 Letter failed to address the presence of tributyltin (“TBT”) in foreshore sediments and the suspected presence of TBT in soil at the site, and that the Director purported to approve a remedial plan that failed to adequately protect the environment including the Gibsons aquifer.

The appeal was originally scheduled to be heard in 2018, but the hearing was postponed after amendments were made to the Contaminated Sites Regulation. The amendments included establishing numerical standards for TBT in soil. In light of these changes, the Developer decided to do additional site investigations for the presence of TBT and other metals. New hearing dates were scheduled in Fall 2019 to allow the additional investigations.

In July 2019, the Developer completed a new detailed site investigation report (the “2019 DSI”). The 2019 DSI contained a new remedial plan (the “2019 Remedial Plan”). According to the Developer, the 2019 Remedial Plan was materially different from the 2017 remedial plan, because it did not call for off-site disposal of contaminated soil and sediment.

In August 2019, the Developer requested that the Board summarily dismiss the appeal of the 2017 Letter on the basis that it was moot. The Developer submitted that the 2017 remedial plan was not being implemented. Instead, the Developer was implementing the 2019 Remedial Plan, and the Developer would not be asking the Director to review or approve the 2019 Remedial Plan.

The Board found that the appeal was moot. The subject of the appeal was the Director’s approval of the 2017 remedial plan, which was not being implemented. There was no reason to consider the merits of the 2017 remedial plan. In addition, the 2019 Remedial Plan was not the subject of a decision by the Director. Therefore, the Board had no jurisdiction to consider the merits of the 2019 Remedial Plan. The Board dismissed the appeal.

The Developer then applied to the Board for an order requiring the Appellants to pay the Developer’s costs associated with the appeal.

The Developer argued that the appeal became an abuse of process or frivolous after the Developer disclosed the 2019 Remedial Plan to the Appellants and advised that it would pursue that plan, not the 2017 plan. The Developer asserted that the Appellants’ refusal to acknowledge that the appeal had become moot was unreasonable, and their opposition led to frivolous proceedings. The Developer also argued that the Appellants’ submissions opposing the application to dismiss the appeal were misconceived, mischaracterized the Developer’s motivations, and improperly addressed the 2019 Remedial Plan. The Developer argued that this conduct should be deterred, and a costs award was appropriate.

The Board held that an order for costs is an extraordinary remedy that is used to punish and dissuade abuses of the appeal process. The Board found that there was nothing reprehensible about the Appellants refusing to withdraw their appeal. They wished to hear the Director’s position on the 2019 Remedial Plan. That the Appellants wished to hear from another party before considering whether to withdraw the appeal was not grounds for ordering costs. Furthermore, in July 2019, the Appellants were not convinced that the Developer was going to adhere to the 2019 Remedial Plan rather than the 2017 plan. The Appellants’ decision not to withdraw the appeal was understandable.

Although the Appellants submissions opposing dismissal of the appeal drew assumptions about the Developer’s motivations that were incorrect, the Developer had the opportunity to address those submissions and was not prejudiced by the Appellants’ actions. The fact that the Developer had to respond to those submissions was insufficient to justify an order for costs.

Accordingly, the Developer’s application for costs was denied.