Keywords:Environmental Management Act – s. 11(14.2).
This was an application by Cidalia Wensley for costs related to an appeal filed by Carolyn Klassen. Ms. Klassen had filed the appeal in response to a decision by the Environmental Health Officer (“EHO”) to issue a permit for a sewage disposal system on Ms. Wensley’s property. After the Wensley’s performed further testing on the property to address Ms. Klassen’s concerns, the Board requested that Ms. Klassen withdraw her appeal. She refused and the Board dismissed that appeal on grounds that all issues had been resolved and there was nothing for the Board to decide in her appeal. Ms. Wensley argued in her application for costs that the appeal was frivolous and vexatious. Ms. Klassen submitted that costs should not be awarded against her as her appeal was based on concerns for the technical validity of the original tests performed and the protection of public health.
The Board found that there was insufficient evidence to support the claim that Ms. Klassen’s appeal was based on improper motives, nor were her claims vexatious. However, her refusal to withdraw the appeal after the Board requested her to do so rendered the appeal frivolous after that time. The costs incurred by Ms. Wensley prior to the request for dismissal were necessary to resolve the legitimate issues then in dispute. The costs incurred after that time were negligible. Therefore, the Board concluded that an award of costs was not warranted in this case.
