Decision Date: May 16, 2019

Panel: Alan Andison

Keywords: Environmental Management Act – s. 14; Administrative Tribunals Act – ss. 34(3)(b), 40; document disclosure application; permit; odour; air emissions

GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility receives organic waste from Vancouver and other municipalities in the region for processing to produce compost, the majority of which is utilized for turf/sod farming at the facility. The facility holds a licence issued by the Greater Vancouver Sewerage and Drainage District to accept the following for composting: food waste, yard waste, soiled paper, packaged organic waste, as well as certain industrial organic wastes, certain agricultural organic wastes, and bulk liquids.

In August 2018, the District Director for the Greater Vancouver Regional District (“Metro Vancouver”) issued an air quality management permit to GFL under the Environmental Management Act and the Greater Vancouver Regional District Bylaw No. 1028, 2008. The permit authorizes GFL to discharge air contaminants from the Delta facility, subject to numerous terms and conditions.

GFL appealed certain terms and conditions in the permit. It described submitted that compliance with certain terms of the permit would likely increase the odours from the facility, and those terms conflicted with other permit terms requiring best operating practices.

In addition to GFL’s appeal, the Board received 19 appeals filed by local residents. In general, they objected to the permit on the basis that odours from the facility affect the community, and odours increased since 2016 because GFL was not using best operating practices. Further, they alleged that GFL may not be complying with its permit, the Agricultural Land Commission Act, or municipal zoning bylaws.

The District Director and GFL each applied for orders requiring the other party to disclose certain categories of documents before the hearing of the appeals commenced.

The Board considered whether the requested categories of documents may be relevant to proving, or responding to, an issue in the appeal, and whether the party being asked to disclose the documents likely had possession and control of the documents. For some categories, the Board also whether the documents were subject to a form of legal privilege which precluded their disclosure.

The Board ordered the disclosure of some, but not all, of the requested categories of documents. The Board ordered GFL to produce the categories of documents that appeared to be relevant to the issues in the appeals, that were likely to be in GFL’s possession, and that were not already available to the District Director. Similarly, the Board ordered the District Director to produce the categories of documents that appeared to be relevant to the issues in the appeals, and were likely to be in GFL’s possession. However, the Board refused to order the disclosure of the categories of documents did not appear to be relevant to the issues in the appeals, or that involved documents which were subject to solicitor and client privilege.

Accordingly, the applications for document disclosure were allowed, in part.