Decision Date: December 17, 1996

Panel: Carol Martin

Keywords: Sewage Disposal Regulation – ss. 3(3)(a); 7; schedule 2 – s.16, s2; opportunity to respond; actual bias; reasonable apprehension of bias; test for bias of health inspector; ‘grandfathering’; improper exercise of discretion; purpose or object of Health Act; appropriate percolation rate, determining water table.

This is an appeal by Mr. Cain against a decision of the Environmental Health Officer (the ‘EHO’) refusing to issue a permit for an on-site sewage disposal system due to the high water table on the lot. Mr. Cain appealed on the grounds that the current Regulation and Ministry policies did not apply to him because they did not exist when his lot was created. He further maintained that the EHO was biased when he considered the permit application. Finally, he submitted that even if the current Regulation and Ministry policies were applicable to his property, the EHO failed to properly assess the property. At the hearing, Mr. Cain also argued he had not been given an opportunity to respond to the EHO’s Statement of Points prior to the hearing and he objected to the late submission of documents to which he had not had an opportunity to prepare a response.

The Board found that, as Mr. Cain had an opportunity to respond to the Statement of Points at the hearing, no unfairness resulted. On the matter of the late documents, the Board noted that Mr. Cain had not requested an adjournment and decided to address the issue of lateness when weighing the evidence. The Board held that the legislation and Ministry policy in effect at the time Mr. Cain made his application was that which applied to the application. The Board found that the EHO was not biased in his decision simply because he had rejected a previous application for the same property and, on the evidence presented, the Board was satisfied that the EHO’s mind was not ‘closed’ when he considered the second application. The Board was satisfied that the procedures employed by the EHO were consistent with the legislation and with the objects and purposes of the Act. On the evidence the Board concluded that, due to the high water table, the proposed system could not be installed in manner that would safeguard the public health. The appeal was dismissed.