Decision Date: February 24, 1998

Panel: Toby Vigod, Robert Cameron, Marilyn Kansky

Keywords: Waste Management Act – s. 46(3); jurisdiction of the Board; request for findings; lack of declaratory power of the Board

This decision was on the preliminary issue of the Board’s jurisdiction, in an appeal by BC Rail Ltd. against a decision refusing to grant to it a permit to dispose of 2070 tonnes of sulphur near Mileboard 573 of BC Rail Mainline. Subsequent to the filing of the appeal, the sulphur in question was taken to a landfill in Alberta, and BC Rail asked the Board to find that the Respondent erred by: (1) insisting that the Appellant comply with the draft Alberta Guidelines, and that such insistence constituted an unlawful fettering of discretion; (2) acting on extraneous, irrelevant and collateral considerations; and (3) failing to take into account highly relevant considerations. The preliminary issue heard by the Board was whether the Board has jurisdiction to make such findings. BC Rail argued that the Board had jurisdiction to determine issues before it notwithstanding that the specific dispute between the parties as to the permit no longer existed.

The Board found that its jurisdiction with respect to the remedies it may order is defined by section 46(3) of the Waste Management Act and that BC Rail was not seeking a remedy that can be found in that section. Further, the Board found that it does not have a separate declaratory power as other tribunals have been given in their originating statutes. The Board held that the relief sought was in the nature of a declaration. The appeal was therefore dismissed.