Decision Date: February 26, 2021

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – s. 31; Administrative Tribunals Act – s. 14(c); permit; air dispersion modelling; constitutional question; preliminary decision; hearing procedure

Richardson International Limited (“Richardson”) appealed a decision of the District Director, Environmental Management Act (the “District Director”), Metro Vancouver Regional District, denying Richardson’s application to amend air quality management permit GVA0617 (the “Permit”). The Permit authorizes Richardson to discharge air contaminants from its bulk grain terminal (the “Terminal”) at the Port of Vancouver. The Terminal is located on land owned by the federal Crown that Richardson leases from the Vancouver Fraser Port Authority (“VFPA”). Richardson sought to amend the Permit by removing an air dispersion modelling requirement (the “ADM Requirement”).

The Environmental Management Act (the “Act”) delegates authority to Metro Vancouver to regulate and legislate with respect to the discharge of air contaminants within Metro Vancouver’s boundaries. Metro Vancouver enacted the Greater Vancouver Regional District Air Quality Management Bylaw No. 1082, 2008 (the “Bylaw”) pursuant to section 31 of the Act. Under section 11 of the Bylaw, the District Director may issue a permit allowing the discharge of an air contaminant subject to requirements for the protection of the environment.

The Permit was issued in 1997 under both the Act and the Bylaw, and was amended in 2015. The 2015 amendment included adding the ADM Requirement. The ADM Requirement requires Richardson to submit a dispersion model plan to the District Director for approval. Richardson must also prepare a report on air dispersion modelling of emissions from the Terminal. After the 2015 amendment, Richardson and Metro Vancouver discussed the parameters for air dispersion modelling and whether the ADM Requirement should have been a requirement in the Permit.

On March 1, 2019, Metro Vancouver approved Richardson’s dispersion modelling plan, subject to conditions.

On July 11, 2019, Richardson applied for an amendment to the Permit that would remove the ADM Requirement. On March 31, 2020, the District Director denied Richardson’s application to amend the Permit. Richardson appealed the District Director’s decision.

Richardson’s grounds of appeal included a challenge to the constitutionality of section 31 of the Act and section 11 of the Bylaw. Richardson claimed that the Permit, the Bylaw, and the Act are inapplicable or inoperative with respect to the Terminal, to the extent that their regulation of air emissions impairs or conflicts with exclusive federal jurisdiction over federal undertakings, the use and development of federal lands, or matters related to navigation and shipping under the Constitution Act, 1867.

As a preliminary matter, Richardson requested that the appeal be heard in stages, with the constitutional ground of appeal being heard first and then, if necessary, the other grounds of appeal. The District Director and the Attorney General of British Columbia (the “AGBC”) opposed Richardson’s application.

The Board noted that it has the power under section 14(c) of the Administrative Tribunals Act to make orders for purposes of controlling its proceedings “[i]n order to facilitate the just and timely resolution” of an appeal. In addition, the Board considered court decisions that list some criteria for deciding whether to hear one issue separately from the other issues in a case: fairness; convenience; efficiency; the presence or absence of prejudice; and most importantly, the interests of justice.

Based those considerations, the Board held that severing an issue should generally only occur where: the issue to be severed could be determinative of the appeal; there is a real likelihood of savings in time and expense by severing the issue; and, there is tolerable risk of inconsistent findings if the severed issue is not determinative of the appeal. Although severance should generally not occur if the issue to be decided first (and the evidence relevant to it) is interwoven with other issues in the appeal (and the evidence relevant to them), that concern may be addressed by having the same Panel hear both matters. However, a significant delay between hearing the first issue and the remaining issues may undermine any efficiencies gained by severance.

Turning to Richardson’s appeal, the Board found that deciding the constitutional issue first could put an end to the appeal if the Board determines that the District Director had no jurisdiction to impose the ADM Requirement. In those circumstances, there would be no need to hear the other grounds of appeal, and there would be significant savings of time and resources. The parties would benefit and there will be a greater access to justice.

Alternatively, if the Board heard the constitutional issue first but its decision on that issue did not resolve the appeal, the Board would hear the remaining grounds of appeal as soon as possible. There would be some delay in commencing that hearing due to the time it took to hear and decide the constitutional issue, but this delay would not be more than a few months if the first hearing is conducted in writing, which appeared to be appropriate in this case. Judicial review would probably not be a source of delay, given that the Board’s decision on the first part of the appeal would not resolve the appeal. In addition, the Board found that there would be little inefficiency related to the duplication of evidence in the first and second parts of the hearing, or needing to ‘get up to speed’ regarding the evidence on the non-constitutional issues.

In conclusion, the Board granted Richardson’s application to hear the constitutional issue before the other grounds of appeal.