Decision Date: March 11, 1998

Panel: Toby Vigod, Robert Cameron, Marilyn Kansky

Keywords: Waste Management Act – s. 44(1); Environment Management Act – s. 11(12), (14.2); Environment, Lands & Parks Statutes Amendment Act, 1997 – s. 31(1)(b); statutory amendment and effect on standing; transition provision; person aggrieved; proof of ownership interests; onus of proof; third party status; party costs

Gurmeet Brar appealed the decision of the Deputy Director of Waste Management to deny Mr. Brar’s appeal against an amended waste permit. The amended permit authorized the District to operate a waste water treatment plant adjacent to Toby Creek, on certain conditions. In a separate appeal, the District appealed the conditions in the amended permit. The Board offered Mr. Brar third party status in that appeal, which he accepted. The District subsequently applied to the Board requesting a determination on whether Mr. Brar had standing for his appeal, arguing that his ownership interest in the properties adjacent to the treatment plant did not exist at the time he filed his appeal, and that therefore he was not properly a “person aggrieved”. The District also requested that he be removed as a third party to the District’s appeal and asked for its costs for the hearing and for all costs related to addressing the issue of standing.

The Board found that the threshold for standing to appeal had been raised by the amendment of section 44 of the Waste Management Act, from a “person that considers himself aggrieved” to a “person aggrieved”. The Board also found that during the 30-day appeal filing period, Mr. Brar did not have an interest that could reasonably be prejudiced by the Deputy Director’s decision. However, Mr. Brar was allowed by the Board to retain his third-party status in the District’s appeal, because the test for this status was found to be considerably broader than the test for standing to launch an appeal. The Board declined to award costs due to the fact that Mr. Brar would have had standing to appeal but for the legislation being amended just three days before the issuance of the Deputy Director’s decision. Further, the District itself did not challenge his standing until almost three months after Mr. Brar’s appeal was filed and subsequent to a stay of the permit being granted.

The Board dismissed Mr. Brar’s appeal for lack of standing. His third party status in the District’s appeal was upheld. The Board declined to award costs.