Decision Date: November 27, 2019

Panel: Gabriella Lang

Keywords: Administrative Tribunals Act – ss. 18(c), 47; Environmental Management Act – s. 115(1); Administrative Penalties (Environmental Management Act) Regulation – s. 7; permit; administrative penalty; wastewater discharge; marine outfall; costs

Telegraph Cove Resorts Ltd. (the “Appellant”) appealed two determinations issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”). The Appellant operates a resort, pub, and campground on the coast of northern Vancouver Island, BC. Since 1984, the Appellant has held a permit authorizing it to discharge wastewater to the ocean via a submerged outfall, subject to permit requirements regarding wastewater quality and quantity, operation of a wastewater treatment plant, and wastewater monitoring and reporting.

From 2017 through 2018, the Ministry conducted several inspections of the Appellant’s operations, and issued warnings for not complying with several of the permit’s requirements.

After considering the Ministry’s evidence and giving the Appellant the opportunity to be heard, the Director issued the two determinations. In both determinations, the Director noted that the Appellant did not dispute the contraventions.

In the first determination, the Director concluded that the Appellant failed to comply with several permit requirements regarding wastewater monitoring and reporting. For those contraventions, the Director assessed penalties totaling $22,500. In the second determination, the Director concluded that the Appellant contravened the permit by operating a new hotel and discharging additional wastewater before obtaining an amendment to the permit. For this contravention, the Director assessed a penalty of $12,000.

The Appellant appealed both determinations. The Appellant did not dispute the findings of non-compliance but asked that the penalties be reduced or eliminated.

The Board heard the appeals by way of written submissions. The Appellant provided no submissions in support of the appeals, despite the Board granting the Appellant’s request for an extension of time to file its submissions. In response, the Director asked that the Board to dismiss the appeals for lack of evidence, or alternatively, dismiss the appeals on their merits. The Director also requested an order for costs against the Appellant pursuant to section 47(1) of the Administrative Tribunals Act.

The Board decided to dismiss the appeals because the Appellant failed to comply with the Board’s submission schedule, and failed to provide any evidence or submissions to support its appeals. There was no need to consider the appeals on their merits. Accordingly, the Board confirmed the Director’s determinations and the penalties.

Regarding the Director’s application for costs, the Board found that the Appellant’s lack of response caused little delay in the appeal proceedings or inconvenience for the Director, given that the appeals were conducted based on written submissions rather than an oral hearing. There was also no evidence of prejudice to the Director. Accordingly, the Board concluded that there are no special circumstances to justify ordering the Appellant to pay the Director’s costs in connection with the appeals.

The appeals were dismissed, and the Director’s application for costs was denied.