Decision Date: October 7, 2020

Panel: Brenda Edwards, Linda Michaluk, Reid White

Keywords: Environmental Management Act – s. 14; permit; odour; air emissions; application for recusal; reasonable apprehension of bias

GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility holds a licence issued by Metro Vancouver to accept certain types of organic waste, including food waste and yard waste, from Vancouver, Delta, and other municipalities for processing into compost.

In August 2018, the District Director for Metro Vancouver issued an air quality management permit to GFL under the Environmental Management Act and 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. In particular, the permit sought to control odours emitted by the facility which were the subject of complaints from nearby residents.

GFL appealed many of the requirements in the permit. GFL submitted that the permit was unduly prescriptive, many of its requirements purporting to regulate odours were unscientific and unenforceable, and compliance with some of its requirements was contrary to best operating practices and would actually cause more odours from the facility. In addition, the Board received 17 appeals from residents, who submitted that the permit was inadequate to address the odours from the facility.

Part way through a lengthy oral hearing of the appeals, the District Director made an application requesting that the Panel Chair and one Panel Member recuse themselves from hearing and deciding the appeals. The District Director alleged that there was a reasonable apprehension of bias by the Panel Chair and the Panel Member against the District Director and some of his witnesses. The District Director requested that the hearing continue before the third Panel Member alone.

In response, GFL filed an application requesting, among other things, an opportunity to cross-examine the person who swore an affidavit in support of the District Director’s recusal application.

The Board noted that the District Director had waited until one week before the hearing was set to reconvene for the final block of hearing time, and more than 13 months after the hearing commenced, to raise the allegations of bias. During a four-month adjournment before the hearing reconvened, the District Director made an interim application to the Board and participated in appeal management conferences, yet he raised no concerns about bias. Allegations of bias should be brought in a timely manner, and the District Director provided no explanation for his delay in raising these allegations. Due to the unexplained and lengthy delay in raising his allegations, the Board concluded that the District Director had waived any right he may have had to request recusal based on those allegations.

However, given the seriousness of the allegations and the harm that they could cause, the Board went on to assess the merits of the recusal application. The Board found that the District Director’s submissions and evidence were insufficient to establish a reasonable apprehension of bias regarding the Panel Chair or the Panel Member. The District Director failed to establish that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it was more likely than not that that the Panel Chair and the Panel Member were biased against the District Director or his witnesses, or had prejudged a key issue in the appeals.

Given those findings, the Board found that GFL’s responding application was moot.

Accordingly, the Board denied both the District Director’s recusal application and GFL’s responding application.