Decision Date: April 27, 1999

Panel: Toby Vigod

Keywords: Waste Management Act – s. 44(1); air pollution; proximity; “person aggrieved”; standing to appeal

This was a decision on a preliminary application by Pacifica challenging the standing of Philip Fleischer and several other appellants who had filed separate appeals against a decision of the Manager to amend an Air Permit issued to Pacifica. In particular, the appellants took issue with the amendments that extended the deadline for compliance with “Level A” standards for certain emissions from the Recovery Boiler in Pacifica’s Powell River pulp mill. Pacifica made a preliminary application to the Board to dismiss all of the appeals on the grounds that the appellants were not “persons aggrieved” as defined in the Waste Management Act (“the Act“), and so had no standing to bring the appeals.

Section 44(1) of the Act provided that “a person aggrieved by a decision of a manager, director, or district director may appeal the decision to the appeal board.” Pacifica submitted that the test for standing in appeals before the Board in similar cases was set out by the Board in a series of earlier decisions, which Pacifica contended reduced the standing test to the issue of proximity of residence to the source of the air emissions at issue. It submitted that the appellants therefore had to provide evidence in the form of wind data to show that air emissions from the mill flowed in their direction and would likely affect them.

The Appellants submitted evidence to indicate not only that they lived in the proximity of the mill, but also that the emissions from the Boiler negatively affected each of them in ways relating to their health, their businesses or their outdoor activities.

The Panel agreed with Pacifica that the onus was on the Appellants to demonstrate that they were “persons aggrieved” under the Act, but found that the Appellants did not have to produce wind data to support their claims. The Panel was satisfied that the Appellants’ interests could be affected by the amendments and that the Appellants were all “persons aggrieved” under the Act. The application was dismissed.