Decision Date: November 1, 2019

Panel: Gregory J. Tucker, QC, R.G. (Bob) Holtby, Kent Jingfors

Keywords: Administrative Tribunals Act – ss. 31(1)(f), 47(1); costs; summary dismissal

Thomas H. Coape-Arnold appealed a decision of the Director, Environmental Management Act (the “Director”), Ministry of Environment, to amend an air emissions permit (the “Amendment”) held by Pinnacle Renewable Energy Inc. (“Pinnacle”) for its wood pellet manufacturing plant (the “Plant”) located in Lavington, BC.

At the appeal hearing, Pinnacle brought a no evidence motion and requested that the appeal be dismissed. The Board granted the no evidence motion with respect to three of the four grounds of appeal. Regarding the fourth ground, the Board found that the evidence did not support the Appellant’s appeal. Accordingly, the appeal was dismissed (Thomas H. Coape-Arnold v. Delegate of the Director, (Decision No. 2017-EMA-011(b)).

Subsequently, the Director applied for an order requiring the Appellant to pay all or part of the Director’s costs in connection with the appeal (the “Costs Application”). In response, the Appellant filed an application to summarily dismiss the Costs Application pursuant to section 31(1)(f) of the Administrative Tribunals Act (the “ATA”). The Appellant argued that the Costs Application had no reasonable prospect of success.

In reply to the Appellant’s application for summary dismissal, the Director argued that section 31(1) of the ATA does not apply to a costs application that is filed as part of an appeal. Alternatively, the Director submitted that the application for summary dismissal should be denied, and the Costs Application should be addressed on its merits.

First, the Board considered whether section 31(1) of the ATA authorizes the Board to order the summary dismissal of a costs application. The Board concluded that costs applications are covered by the definition of “application” in section 1 of the ATA and are part of an appeal proceeding. Therefore, costs applications are subject to section 31(1) of the ATA. Also, although delaying the appeal process is a concern when preliminary applications are made before an appeal is heard, this concern does not apply to costs applications, which are decided after the merits of an appeal have been decided, or the appeal is otherwise concluded.

Next, the Board considered whether to summarily dismiss the Costs Application. The Board held that the facts in this case were unusual. Among other things, there were extensive pre-hearing discussions between the parties and the Board concerning expert evidence. The Appellant pursued the appeal based on voluminous articles and limited correspondence from potential experts which, on an objective reading, did not support the interpretation he sought to be drawn from them. In addition, although the Appellant argued that the Costs Application must fail because there was no evidence of “bad faith” in his conduct, the Board’s discretion to award costs is not limited to situations involving bad faith. However, without the benefit of full argument on the Costs Application, the Board could not determine whether the circumstances in this case justified ordering costs against the Appellant. For all of those reasons, the Board could not conclude that the Costs Application had no reasonable prospect of success.

Consequently, the Board denied the Appellant’s application to summarily dismiss the Costs Application.