COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Unifor Local 2301 v. Rio Tinto Alcan Inc.,

 

2017 BCCA 300

Date: 20170818

Docket: CA43124

Between:

Unifor Local 2301

Respondent

(Petitioner)

And

Rio Tinto Alcan Inc.

Appellant

(Respondent)

And

Environmental Appeal Board, Attorney General of British Columbia,
Emily Toews and Elisabeth Stannus

Respondents

(Respondents)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

On appeal from:  An order of the Supreme Court of British Columbia, dated September 4, 2015 (Unifor Local 2301 v. British Columbia (Environmental Appeal Board), 2015 BCSC 1592, Vancouver Docket No. S152229)

Counsel for the Appellant:

D.R. Bennett, Q.C.

M.D. Manhas

Counsel for the Respondent Unifor Local 2301:

J.B. Gratl

Counsel for the Respondent Environmental Appeal Board:

M.G. Underhill

Place and Date of Hearing:

Vancouver, British Columbia

September 9, 2016

Place and Date of Judgment:

Vancouver, British Columbia

August 18, 2017

Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Willcock


 

Summary:

Rio Tinto operates a smelter, and holds a permit under the Environmental Management Act allowing it to discharge sulphur dioxide (SO2) into the air. In 2013, it was granted an amendment to the permit allowing it to increase the amount of SO2 discharged. The director, in granting the permit, deferred his decision on the monitoring requirements. He required the appellant to file an “Environmental Effects Monitoring plan” which, after approval, would establish monitoring requirements. A plan was submitted and approved by the director in 2014. The respondent appealed the approval to the Environmental Appeal Board. The Board rejected the appeal, holding that the approval of the plan was not a “decision” for the purposes of the appeal provision of the Environmental Management Act. On judicial review, the chambers judge found the Board’s interpretation of the statute to be unreasonable and set aside the Board’s decision. He found that the approval “imposed a requirement” and was an “exercise of power”, and was therefore an appealable decision under the statute. Rio Tinto appealed. Held: Appeal dismissed. The Board’s interpretation of the statute did not comport with principles of statutory interpretation or with the scheme of the statute. It was unreasonable. The chambers judge was correct in setting aside the dismissal of the appeal.

Reasons for Judgment of the Honourable Mr. Justice Groberman:

[1]             This is an appeal from a decision of the Supreme Court setting aside a decision of the Environmental Appeal Board. The Board held that the imposition of sulphur dioxide (SO2) discharge monitoring requirements did not constitute a “decision” appealable under ss. 99 and 100 of the Environmental Management Act, S.B.C. 2003, c. 53. The Court found that interpretation of the statute to be unreasonable. For the reasons that follow, I agree with the chambers judge that the Board’s interpretation was unreasonable, and would dismiss the appeal.

Background

[2]             The appellant, which I will refer to as “Rio Tinto”, operates an aluminum smelter in Kitimat. The smelter discharges significant quantities of effluent, emissions and waste into the environment. It has, for a number of years, held permits allowing the discharges under the Environmental Management Act and predecessor legislation. In 2007, existing permits were amalgamated into a “multi-media permit”, so called because it governs discharges onto land, into the air, and into water. The permit allowed emissions of SO2 in a quantity of up to 27 Mg per day (a megagram is equal to a metric ton or “tonne”).

[3]             After the multi-media permit was issued, Rio Tinto developed plans to modernize the smelter at Kitimat, and to expand its production capacity. The project, when completed, would increase aluminum production by almost half, and result in a similar increase in SO2 emissions, though it would also result in a decrease in other emissions.

[4]             Between 2011 and 2013, Rio Tinto completed studies and engaged in public consultations in support of an application to increase the permitted SO2 emissions to 42 Mg per day. On April 23, 2013, a delegate of the director granted the permit amendment under s. 16 of the Environmental Management Act. The approval for the increased SO2 emissions was subject to the following condition:

4.2.5 Environmental Effects Monitoring Plan

The Permittee shall submit an Environmental Effects Monitoring (EEM) plan for review and approval by the Director on or before December 30, 2013 and shall implement the EEM plan upon approval. The EEM plan shall, at a minimum, include effects monitoring methods and actions along four lines-of-evidence: human health; vegetation; terrestrial and aquatic environments. The EEM plan shall also include impact threshold criteria either for emission reduction or other mitigations that, when exceeded, would trigger emission reduction and/or other mitigation.

[5]             The monitoring plan was of considerable importance. It was ultimately to be used to determine whether the increase in permissible emissions would become permanent:

4.2.6 Comprehensive EEM and SO2 Discharge Limit Review

On or before October 31, 2019, the Permittee shall submit to the Director, a comprehensive review of EEM program results from 2012 to 2019. If any unacceptable impacts are determined through the use of the impact threshold criteria pertaining to emission reduction, then the maximum SO2 daily discharge limit shall revert back to 27 Mg/d, unless the Director otherwise amends the discharge limit.

[6]             Rio Tinto submitted its initial draft EEM plan on December 31, 2013. Thereafter, it was reviewed by the Ministry of Environment and revisions were made to it. A revised EEM plan was eventually approved by the director’s delegate on October 7, 2014.

[7]             Unifor, a union representing workers at the smelter, took the position that the monitoring plan did not comply with the requirements of the permit, as amended, in that it did not include “impact threshold criteria” for human health. It also took the position that, in any event, the EEM plan was inadequate.

Environmental Appeal Board Proceedings

[8]             On November 6, 2014, Unifor filed a notice of appeal with the Environmental Appeal Board, appealing the October 7, 2014 approval of the EEM plan. The chair of the Board responded by letter dated November 13, 2014, indicating that he had some concerns regarding the jurisdiction of the Board to entertain the appeal. He asked the parties to provide submissions on whether:

(1)  [Unifor] has standing to appeal as “a person aggrieved”; and

(2)  the October 7, 2014 approval of the plan constitutes an appealable “decision” under section 99 of the Act.

[9]             The right to bring an appeal to the Environmental Appeal Board arises out of s. 100(1) of the Environmental Management Act:

100(1) A person aggrieved by a decision of a director or a district director may appeal the decision to the appeal board in accordance with this Division.

[10]         Section 99 of the statute defines “decision” for the purposes of Division 2 of Part 8 of the Act, the division that includes s. 100:

99 For the purpose of this Division, “decision” means

(a) making an order,

(b) imposing a requirement,

(c) exercising a power except a power of delegation,

(d) issuing, amending, renewing, suspending, refusing, cancelling or refusing to amend a permit, approval or operational certificate,

(e) including a requirement or a condition in an order, permit, approval or operational certificate,

(f) determining to impose an administrative penalty, and

(g) determining that the terms and conditions of an agreement under section 115 (4) [administrative penalties] have not been performed.

[11]         On December 4, 2014, after reviewing the parties’ written submissions, the chair, sitting as a single member panel of the Environmental Appeal Board, provided a written decision in which he ruled that the approval of the EEM plan was not an appealable decision under the statute. In the circumstances, he found it unnecessary to determine whether Unifor was “a person aggrieved” by the approval.

[12]         The Board analysed the question of whether the approval was an appealable decision as one of statutory interpretation. It began its analysis by citing an oft-quoted passage from Elmer A. Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, for the “modern rule” of statutory construction:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[13]         It then referred to certain principles of statutory interpretation that had been cited in the parties’ submissions:

[71]      … [A]n enactment is to be interpreted as “always speaking”, … every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensure[s] the attainment of its objects …

[72]      … [T]he words used in a statute have the same meaning throughout the statute unless an express contrary intention is indicated; the provisions of a statute are presumed to work together, with each contributing to the intended legislative objectives; and, it is presumed that the legislation avoids superfluous or meaningless words.

[14]         The Board then referred to its practice in previous decisions of looking to each part of the definition in s. 99 of the statute separately to determine whether a matter came within its ambit.

[15]         I need not refer in any detail to the Board’s lengthy and sometimes convoluted discussion of the various subsections. Two features of its analysis need to be noted, however. First, it took the position that each of the enumerated types of decisions in s. 99 constituted a watertight compartment. It therefore interpreted phrases such as “imposing a requirement” and “exercising a power” narrowly, as otherwise those descriptions would overlap with other types of decisions, such as “making an order” or “including a requirement or a condition in an order, permit, approval or operational certificate.”

[16]         Second, relying on its previous jurisprudence and on the decision of the Supreme Court of British Columbia in Imperial Oil Ltd. v. Ron Driedger, 2002 BCSC 219, the Board assumed that in order for something to be a “decision”, it had to be directly authorised by a provision of the statute. The Board considered that the authority to approve the EEM plan arose from the amended permit, and not directly from the statute. Characterizing the EEM plan as “incidental to, and flowing from, the [permit] Amendment”, it held that its approval was not a “decision” under the statute.

[17]         The Board then addressed what it called “pragmatic or policy considerations”. It took the view that Unifor did not need to proceed with an appeal, because other parties had appealed the granting of the 2013 permit amendment, and had been allowed to expand the grounds of appeal to include the monitoring requirements set by the EEM plan. The Board considered that Unifor ought to have appealed the permit amendment itself, and not awaited the EEM plan’s approval.

[18]         The Board also presented a “floodgates” argument:

[102]    … Permit amendments may result in changes to the status quo, such as changes to the amount or type of waste emissions that are permitted, and, therefore, it is consistent with the Act’s objectives of protecting the environment and regulating waste discharges that permit amendments may be appealed. In contrast, the approval of the Plan results in no change to the amount or type of waste emissions allowed under the Permit. In this sense, the Plan does not change the status quo as it exists under the Permit. Also, each time a permit or a permit amendment is issued, as in this case, it may contain conditions or requirements which require the permit holder to provide further information or complete further studies, which may be subject to Ministry review and/or approval at a later date. If these types of requirements within a permit or a permit amendment were all intended to be independently appealable, the appeals could go on indefinitely. If every monitoring plan or further study required by a permit or a permit amendment could be the subject of a separate appeal, in addition to any appeal of the permit or permit amendment, the 30-day period for appealing the permit or permit amendment could be repeatedly circumvented. This could lead to abuse of the appeal process and would be contrary to the principle of finality. It could also lead to delays in the appeal process, if an appeal of a permit or a permit amendment is delayed or adjourned as a result of a subsequent appeal of a monitoring plan that was incidental to the permit or permit amendment. This would be contrary to the timely resolution of appeals.

[19]         In the result, the Board concluded that the approval of the EEM plan was not a “decision” within the meaning of s. 99 of the Act, and could not be the subject of an appeal brought pursuant to s. 100.

Judicial Review Proceedings in Supreme Court

[20]         Unifor applied for judicial review of the Environmental Appeal Board’s decision. The chambers judge began by considering the standard of review to be applied, and concluded that the appropriate standard was one of “reasonableness”.

[21]         The judge found three aspects of the Board’s decision to be unreasonable. First, he found that the Board failed to recognize that the director’s delegate, in granting the permit amendment in 2013, divided the approval of the permit amendment into two stages by deferring the imposition of certain requirements pending further review. In particular, he deferred exercise of a power under ss. 14(1)(e) and 16(4)(j) of the statute until submission and review of the EEM plan:

14 (1) A director may issue a permit authorizing the introduction of waste into the environment subject to requirements for the protection of the environment that the director considers advisable and, without limiting that power, may do one or more of the following in the permit:

(e) specify procedures for monitoring and analysis, and procedures or requirements respecting the handling, treatment, transportation, discharge or storage of waste that the permittee must fulfill

16 (4) A director’s power to amend a permit or an approval includes all of the following:

(j) changing or imposing any procedure or requirement that was imposed or could have been imposed under section 14 ….

[22]         The judge, aptly in my view, described the situation as one in which the amendment to the permit occurred in two stages – the initial April 2013 amendment, which increased the emission limit and stated that the increase would be subject to conditions, and the October 2014 amendment (by way of approval of the EEM plan), which incorporated specific monitoring and analysis procedures into the permit.

[23]         The judge held that in finding that there was no appeal from the second stage of the permit amendment, the Board had interpreted the statute unreasonably:

[27]          In the present case … the first stage of the amendment process did not specify the impact threshold criteria and monitoring methods and actions. Those details were only put in place by way of the second stage of the amendment process, namely, the 2014 Letter of Approval.

[28]          In its Decision, the EAB agreed that an aggrieved person could appeal the details of the monitoring program in order to ensure that they adequately protect human health, but it held that the only mechanism for bringing such an appeal would be to have appealed the 2013 Amendment Letter. Thus, at the beginning of para. 100, the EAB Decision reads:

Turning to the pragmatic or policy considerations that were discussed in Houweling [Houweling Nurseries v. District Director of the GVRD et al., 2005 BCSC 894], the Panel agrees with the Appellants that subsections 99(b) and (c) of the Act must be read such that, when the Director requires a permit holder to establish and operate a monitoring program incidental to a permit amendment, persons aggrieved can appeal to the Board in order to ensure that the monitoring program adequately protects human health and the environment. However, the Panel finds that the appropriate mechanism for doing so is through an appeal of the decision that requires a monitoring plan to be prepared for the Director’s review and implemented upon the Director’s approval - which is the Amendment in this case.

[29]          In response to Unifor’s submission that it could not comply with the 30-day appeal period to appeal the 2013 Amendment Letter because it did not at that time know what the details of the monitoring program would be, the EAB ruled that Unifor should have taken an appeal of the 2013 Amendment Letter within the appeal period, and then have applied to amend its appeal after the details of the 2014 Letter of Approval were made known.

[30]          With all due deference to the expertise of the EAB in interpreting and applying the Act, I find that the EAB Decision in this respect is unreasonable. It is not within the range of acceptable and rational outcomes.

[31]          This aspect of the EAB Decision effectively requires that in any case of staged decision-making, any person who believes that they could possibly be adversely affected by a subsequent stage must nevertheless bring a prophylactic appeal of the first stage, just in case the second part of the decision-making process contains aspects that turn out to be objectionable. Such a rule would only encourage a proliferation of appeals, many of which would turn out to be pointless if the second stage of the decision-making process proved to be unobjectionable.

[24]         The second basis on which the judge found unreasonableness was the Board’s unduly technical interpretation of the statute:

[35]          Although the words of a statute must be read in the context of the entire act and with a view to the object of the act and the intention of the Legislature, the ordinary and grammatical sense of the words cannot be ignored. On its face, and looking at the ordinary and usual meaning of the words of s. 99, the definition of “decision” is extremely broad, and it is difficult to conceive that in enacting such a broad definition, the Legislature could have intended to exclude a decision of the sort contained in the 2014 Letter of Approval. Put another way, it strains the limits of interpretation of the English language to hold that the 2014 Letter of Approval was neither the making of an order, nor the imposition of a requirement, nor the exercise of a power, nor the issuing or amending of an approval, nor the inclusion of a requirement or condition in an order, permit or approval.

[25]         Finally, the judge found that the Board had taken into account an irrelevant factor in considering that other parties had taken an appeal from the 2013 amendment to the Environmental Appeal Board. The fact that other people had appealed the decision could have no bearing on the interpretation of the statutory language.

Analysis

[26]         I agree with the chambers judge’s analysis and with his conclusion that the decision of the Environmental Appeal Board was unreasonable. In view of the way that arguments were put in this Court, however, it may be helpful to restate the basis on which I consider the Board’s decision to be unreasonable. In doing so, I do not, in any way, suggest that the chambers judge’s analysis was erroneous or deficient.

[27]         In this Court, the parties accepted that the appropriate standard of review is a deferential one, generally referred to as the “reasonableness” standard. I agree with their assessment, and would add that the decision of the Supreme Court of Canada in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, puts the matter beyond doubt.

[28]         As the appellant points out, this Court owes no deference to the views of the chambers judge on this appeal. Rather, the Court is to look directly at the Environmental Appeal Board’s decision and determine whether or not it is reasonable: see Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476 at paras. 74-79.

[29]         The task of the Court is to determine whether the Board’s interpretation of the statute “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47. While the standard is highly deferential, a tribunal’s interpretation of a statute will not be upheld where it has failed to apply principles of statutory construction properly and has, in the result, interpreted a statute in a manifestly incorrect way: see, for example, Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53.

[30]         The Board erred in interpreting the provisions of s. 99 restrictively. It appears to have done so because it understood that statutory interpretation principles required it to interpret s. 99 in such a way that there was no overlap between its subsections. It considered that it had to avoid interpretations that allowed exercises of authority to be characterized as “decisions” under more than one of the subsections. There is, in fact, no such principle of statutory interpretation.

[31]         It is apparent on the face of s. 99 that it is intended to comprehensively enumerate virtually all of the various types of substantive decisions that are made under the statute. Undoubtedly, some of the enumerated types of decisions overlap with others. There is nothing inappropriate about that.

[32]         By artificially narrowing the interpretation of the subsections of s. 99, the Board failed to heed a basic principle of statutory interpretation, set out in s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238:

8  Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[33]         The interpretation arrived at by the Board fell outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

[34]         A second error made by the Board was to distinguish between decisions made directly under the statute and decisions made pursuant to permit provisions. In granting and amending permits, the director under the Environmental Management Act has only those powers given to him by statute. Any authority that the director has in the permit, therefore, is a power deriving from the statute.

[35]         In my view, the chambers judge analysed the matter correctly in holding that the permit amendment here was done in two stages. The imposition of the EEM plan requirements on Rio Tinto was a power conferred by the statute (s. 14(1)(e)). It did not lose that statutory basis simply because the power was exercised after the initial amendment of the permit, as envisioned when that initial amendment was made.

[36]         The Board, in my view, misinterpreted Imperial Oil Ltd. v. Ron Driedger. That case dealt with whether the petitioner had to take an appeal to the Environmental Appeal Board before seeking an order in the nature of mandamus for the issuance of a permit. The respondent in that case was delaying the issuance of a permit for extraneous reasons and without authority. Because the respondent had no authority to delay the issuance of a permit, he was not making a statutory “decision”; he was merely engaging in improper conduct. There was, then, nothing to appeal to the Environmental Appeal Board. The appropriate remedy for the petitioner was an order in the nature of mandamus under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

[37]         Accordingly, the Board made a fundamental error in characterizing the approval of the EEM plan as a power that derived from the amended permit rather than from the statute itself. The power originated in the statute, and was manifestly within the definition of “decision” in s. 99.

[38]         Finally, the Board’s discussion of the “pragmatic or policy considerations” contained errors. As the chambers judge observed, the proper interpretation of the language of the statute was completely unrelated to the question of whether parties other than Unifor had rights of appeal or whether those rights had been exercised. The tribunal undoubtedly has the power, as master of its own procedures, to ensure that appeals before it proceed efficiently and are not abusive of the process. It can, for instance, order the consolidation of appeals, or schedule appeals in a manner and in an order that it considers efficient. It can, as long as it did not violate the requirements of procedural fairness, direct that appeals be heard in a more summary fashion than usual where issues have already been fully aired in previous proceedings. It cannot, however, deny a party the statutory right to appeal by interpreting the appeal provisions of the statute unreasonably.

[39]         The Board also misapprehended the scheme of the statute in suggesting that only “changes to the amount or type of waste emissions that are permitted” were appealable because only those modifications represented a “change in the status quo”. Section 99 allows appeals from all sorts of decisions that are not concerned with the type or amount of waste emissions allowed. The approval and imposition of monitoring requirements clearly falls within the ambit of the word “decision” as it is defined in s. 99.

[40]         The Board also appears to have misapprehended the consequences of allowing various decisions under the Act to be independently appealed when it stated that “[i]f every monitoring plan or further study required by a permit or a permit amendment could be the subject of a separate appeal, in addition to any appeal of the permit or permit amendment, the 30-day period for appealing the permit or permit amendment could be repeatedly circumvented.” An appeal of a decision does not lay an existing permit open to attacks at large. The appeal must be narrowly focussed on the particular impugned decision.

[41]         I would note, as well, that interpreting the statute to allow an appeal from a decision prescribing monitoring requirements does not mean that “every … further study required by a permit or permit amendment could be the subject of a separate appeal”. In order for a study or requirement to be appealable, it must be a “decision” as that term is defined in s. 99 of the Environmental Management Act.

Conclusion

[42]         On any reasonable interpretation of ss. 99 and 100 of the Environmental Management Act, taking into account the scheme of the statute and its objects, the director’s incorporation of the Environmental Effects Monitoring plan into the amended permit constituted an appealable decision. The Environmental Appeal Board’s ruling to the contrary was properly set aside.

[43]         Accordingly, I would dismiss the appeal.

“The Honourable Mr. Justice Groberman”

I AGREE:

“The Honourable Chief Justice Bauman”

I AGREE:

“The Honourable Mr. Justice Willcock”