Decision Date: May 26, 2020

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

Keywords: Administrative Tribunals Act – s. 47(1); costs; permit amendment, air emissions

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.

In response, the Appellant filed an application to summarily dismiss the Director’s costs application pursuant to section 31(1)(f) of the Administrative Tribunals Act (the “ATA”), on the basis that the costs application had no reasonable prospect of success. The Board denied the Appellant’s application to summarily dismiss the costs application (Thomas H. Coape-Arnold v. Delegate of the Director, (Decision No. 2017-EMA-011(c)).

Turning to the merits of the costs application, the Board noted that the facts in this appeal were unusual: the Appellant was involved in an earlier appeal and the settlement of that appeal by way of a Memorandum of Understanding (the “MOU”); there were extensive case management discussions concerning expert evidence in the present appeal; and the Appellant pursued the present appeal on the basis of voluminous scholarly articles and limited correspondence from potential experts which, on an objective reading, did not support his appeal.

The Board found that although the Appellant was undoubtedly motivated by genuine concerns for the environment, the shifting and wide-ranging nature of his arguments, and the volume and nature of written material that he relied on, were problematic. He used a “scatter-gun” approach, relying on anything that might be used to attack any aspect of the Amendment, the Permit itself, and/or the terms of the MOU. This made it difficult for the Director and Pinnacle to understand, let alone respond to, his case. The case the Appellant put forward, intentionally or not, relied on strained readings of scholarly articles and the need to consider extensive material that had no real relevance to the issues.

However, the Board found that this did not constitute special circumstances justifying an award of costs. The Appellant’s handling of the appeal may have skirted the boundary between acceptable and unacceptable conduct; however, the Appellant did not cross that boundary, or did not do so clearly enough to justify an award of costs against him. The Appellant’s actions did not amount to “reprehensible conduct” and did not constitute a “significant departure from the expected standard” of an appellant in his position, such that an order of costs should be made.

The Director’s application for costs was denied.