Decision Date: October 2, 1996

Panel: David Brown, William MacFarlane, Harry Higgins

Keywords: Waste Management Act – ss. 8; 11, 27; fettering of discretion; patently unreasonable; Re Hamilton Independent Variety & Confectionery Stores Inc. v. City of Hamilton; R v. Sandler; definition of “waste”; definition of “air contaminant”; meaning of “pollution”; standard of proof under Waste Management Act; “material discomfort to a person”; vagueness

This is an appeal by the City of Penticton and Steve Boultbee from a decision of the Deputy Director of Waste Management amending the City’s waste composting permit to include a new waste management plan and new capital equipment. Mr. Boultbee maintained that the Permit should never have been renewed. The permit was amended because the Deputy Director believed that the composting facility could cause material discomfort to a person. The City appealed a number of the amendments on the grounds that they were outside the Director’s jurisdiction, unreasonably fettered the discretion of the Regional Waste Manager, were patently unreasonable and were not supported by the evidence.

The Board found that Mr. Boultbee failed to establish that the Permit should not have been renewed and dismissed his appeal. The Board held that the Director had jurisdiction to make the amendments to the Permit and that his decision did not unreasonably fetter the discretion of the Regional Waste Manager. It also held that his decision was not patently unreasonable. However, the Board found that there was insufficient evidence to support the Director’s finding that the Composting Facility was creating odours capable of causing material discomfort to persons. The Board held that there was no evidence to suggest that the Composting Facility was inadequate and all that was required were technological improvements to enhance its operation. The Board made amendments to the permit, which included extending the length of the permit.