IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Super Save Disposal Inc. v. Greater Vancouver Sewerage and Drainage District, |
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2017 BCSC 1027 |
Date: 20170621
Docket: S177959
Registry: New Westminster
Between:
Super Save Disposal Inc.
Petitioner
And
Greater Vancouver Sewerage and Drainage District
Respondent
Corrected Judgment: the front page was corrected on June 26, 2017 to correct hearing dates
Before: The Honourable Madam Justice Harris
Reasons for Judgment
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Counsel for Petitioner: |
J. Kitsul |
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Counsel for Respondent: |
E. Mak |
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Place and Date of Trial/Hearing: |
New Westminster, B.C. November 22, 23, 24 and 25, 2016 |
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Place and Date of Judgment: |
Vancouver, B.C. June 21, 2017 |
[1] The petitioner, Super Save Disposal Inc., is a company registered in the Province of British Columbia that operates as a solid waste hauler in the Lower Mainland and Fraser Valley areas. The petitioner’s primary business consists of collecting solid waste from its customers and delivering it to waste disposal facilities operated by the respondent, the Greater Vancouver Sewerage and Drainage District (the “GVSDD”).
[2] The GVSDD is an administrative body incorporated under An Act to Incorporate the Greater Vancouver Sewerage and Drainage District, S.B.C. 1956, c. 59 (the “Act”) and is one of four corporate entities that together operate under the trade name “Metro Vancouver”. Metro Vancouver is mandated to plan and deliver regional public utilities and services for member municipalities and related authorities. The GVSDD is responsible for, among other duties, the management of municipal solid waste and recyclable material in Vancouver and the surrounding regions, including the operation and regulation of waste disposal facilities.
[3] In these proceedings, the petitioner seeks to quash 92 “Disposal Violation Notices” (“Notices”) issued to it between April 2015 and February 2016 by GVSDD’s waste inspectors. The petitioner received the Notices for disposing of materials at the facilities that were either subject to a single-item or a percentage-based ban under the GVSDD’s material ban disposal program. At the time material to this petition, the program was established under Bylaw No. 288, Bylaw to Establish the Tipping Fee and Solid Waste Disposal Regulations (2015) and Bylaw No 293, Bylaw to Establish the Tipping Fee and Solid Waste Disposal Regulations (2015) (the “Tipping Fee Bylaws”).
[4] The petitioner claims that, in issuing the Notices to the petitioner, the GVSDD has acted outside of its jurisdiction by issuing the Notices in a discriminatory and arbitrary manner. Specifically, the petitioner submits that the GVSDD acted in a discriminatory manner by focusing on commercial users to the exclusion of residential users and that, by allowing for the Notices to be issued based on visual inspections, the GVSDD has implemented an arbitrary system.
[5] The GVSDD operates and regulates multiple waste disposal facilities in the Vancouver region, including the Coquitlam Resource Recovery Plant, the North Shore Transfer Station, the Surrey Transfer Station, and the Waste-to-Energy Facility. The transfer stations receive and manage waste before it is transported to a landfill or to the Waste-to-Energy Facility.
[6] As part of the GVSDD’s duties, it has been tasked with minimizing the environmental impact of the vast quantities of waste generated in the region. In 2015 alone, 3,202,979 tonnes of solid waste was produced in the areas under the jurisdiction of the GVSDD. The GVSDD has the current goal of reducing, by the year 2020, the quantity of waste generated per capita within the region to 90% or less of the volume generated in the year 2010 and of increasing the amount of waste diverted to recycling from an average of 55% to a minimum of 75% by 2015 and 80% by 2020, as set out in the current solid waste management plan, the "Integrated Solid Waste and Resource Management Plan", dated July 2010 (the “Management Plan”).
[7] The efforts to divert waste from landfills largely began in 1996 when the GVSDD implemented its first material ban disposal program which limited the disposal of corrugated cardboard at their waste disposal facilities. The program followed the recommendations from a report from the Solid Waste Management Committee which had recommended that the GVSDD charge users an additional surcharge for the presence of banned materials. The report provided, in part:
2. Background
In 1990, the Ministry of Environment, Lands & Parks (MOELP) mandated that regional districts were to reduce per capita disposal by 50% (relative to 1990 waste generation) by 2000.
To achieve that goal, the GVRD and member municipalities committed themselves to implementing bans on the disposal of certain recyclable materials at all disposal facilities...
4. Discussion
…
4.3 Ban Surcharges and Enforcement
Any loads delivered to public (GVRD & municipal) transfer and disposal facilities would be subject to random visual inspection. To provide the most uniform regional inspection, it is recommended that a single independent inspection service be contracted through the GVRD...
Loads found to contain in excess of 10% (by volume) of banned materials would be subject to a surcharge of an additional 50% on the regular tipping fee (a surcharge of $32.50 for a total fee of $97.50 per tonne). The enforcement officer would collect photographic evidence of violations. Where practical, the enforcement officer may also direct that the banned material be placed in a designated area for recycling...
5 Options
There are no options more viable for achieving the mandated waste reduction goals than implementing a disposal ban on materials.
[8] The GVSDD accepted the recommendations of the report and implemented, through a “tipping fee bylaw”, its first material ban disposal program and the surcharge system.
[9] Since the program was introduced, it has remained a key component of the effort to reduce waste in landfills. The Management Plan provides a framework for the GVSDD's programs and policies in relation to waste management and confirms the essential function of the material ban disposal program as a means of achieving the GVSDD's environmental goals. As described in the Management Plan:
The overriding principle of the Integrated Solid Waste and Resource Management Plan is the avoidance of waste through an aggressive waste reduction campaign and through the recovery of materials and energy from the waste that remains.
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To ensure the sustainability principles embodied within this Plan are fulfilled, Metro Vancouver will retain management control of regional disposal facilities. By retaining management control, all waste reduction and diversion goals can be applied uniformly at all regional disposal facilities to ensure equity for all residents and business within the region while attaining the goals of this Plan.
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Metro Vancouver will:
2.2.1 Implement disposal bans on materials that limit opportunities to achieve reuse, recycling or energy recovery. Ongoing
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(b) Expand the monitoring and enforcement of disposal bans and enhance with effective communications to raise awareness of the bans. 2011
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[10] The GVSDD has, over time, reviewed its policies and implemented changes to the tipping fee bylaw. The amendments have varied the tipping fee rates, surcharge rates, and imposed greater restrictions on the allowable amounts and the type of materials subject to the ban.
[11] Under the Tipping Fee Bylaws, the disposal of materials at a waste disposal facility is a “user-pay” system. Users pay a basic fee, called a "tipping fee", which is based on the total weight of the disposed load. Users must also pay a prescribed surcharge in addition to the tipping fee if they dispose of banned materials. Under the material ban disposal program, certain materials are subject to a single-item ban, such as car tires, while other items are subject to a percentage-based ban. For materials subject to the percentage-based ban, such as recyclable paper, users are permitted to dispose of a load that contains the material so long as the amount is less than a prescribed percentage.
[12] The GVSDD employs, through a third party contractor, Southern Cross Holdings Ltd., waste inspectors that attend the various waste disposal facilities and conduct inspections of loads coming into the facilities. The inspectors are responsible for implementing the material ban disposal program including issuing disposal violation notices imposing surcharges when users dump banned materials at the facilities. Since 2004, the GVSDD has contracted with Southern Cross Holdings Ltd. ("Southern Cross") to perform the required inspections.
[13] Under the current arrangement, there are seven waste inspectors assigned to inspect at nine facilities. Not all loads entering the facilities are, therefore, subject to inspection. The inspectors divide their time randomly among the facilities to provide as much coverage as possible. The inspectors select which vehicles to inspect.
[14] The inspection process used by the inspectors was described in the affidavits filed by inspectors in this proceeding. While there was some variation among the different inspectors concerning their approach to the inspections, the process described by each inspector was substantially similar. A long serving inspector, Deanne Hackett, had trained a number of the other inspectors.
[15] The evidence of the inspectors was that they rely on a visual inspection process to examine the loads entering the facilities and adopt a “start-to-finish approach” to their inspections. Inspectors begin visually inspecting loads when users enter the facilities and begin unloading - looking for the presence of banned materials.
[16] According to their evidence, once a user is in the facility, inspectors wait until the vehicle is parked and then stand a few metres off to the side of the vehicle so as to view the contents as it unloads. Before the driver begins unloading waste, the inspectors assess the area where the load is going to be dumped for any existing materials from a previous vehicle that may not yet have been cleared away. The inspectors then visually inspect the load as it is unloaded for the presence of banned materials. The inspectors deposed that they review the area where loads are being dumped to ensure that they correctly identify the source of the banned materials.
[17] Inspectors take photos during the inspection from various angles. These photos are date stamped. They also maintain a daily worksheet to record their daily statistics including the number of inspections they complete, the number of disposal violation notices they issue, and, if it is a commercial waste collection vehicle, the company name, the vehicle identification number, the license plate, and the type of vehicle. In the event that a disposal violation notice is issued, the inspectors provide the user with a form of Notice which indicates the facility where the inspection occurred, the date and time, the type and quantity of banned material present, the user’s information, whether the notice and surcharge was issued on-site, whether the inspector discussed the notice with the driver and the amount of the surcharge imposed. The notices also contain a comments section in which the inspectors describe the nature of the inspection, elaborating on the banned materials and the user.
[18] While inspectors follow the same general process for their inspections, that process accounts for certain variables such as the layout of the different waste facilities, the type of vehicle attending the facility, and the type of banned materials present in the loads.
[19] For example, in its operations, the petitioner operates both “front-end” and “roll-off” waste collection trucks. A front-end collection truck is a commercial garbage truck that allows drivers to pick up waste from garbage cans or dumpsters by turning them upside-down to empty the contents into the large body of the vehicle. A roll-off bin is a large, rectangular, metal bin that is mechanically pulled on and off the bed of the collection vehicle. Roll-off bins allow customer to load the waste into the bin after which the collection vehicle driver pulls bin onto the vehicle and drives the bin to a waste disposal facility. For the front-end trucks, inspectors examine the waste as the vehicle moves forward to unload the waste and, for the roll-off bins, inspectors examine the load as soon as the unloading door is opened and begins to empty.
[20] The inspectors adjust their process accordingly to accommodate for the different facility layouts. Some of the facilities have “tipping floor” layouts while others have “pit” layouts. In the tipping floor facilities, users unload, or "tip", the waste from their vehicles directly onto the floor. In a pit facility, there is a large, below-ground pit for tipped waste.
[21] In inspecting the loads for the presence of materials subject to a percentage-based ban, inspectors deposed to the use of a visualization technique to determine if the load has over the allowable amount of the banned material. In the affidavit of Ms. Hackett, she described the technique she uses for determining if there is a sufficient volume of banned materials to issue a notice as follows:
19. A reference technique I use is that I visualize a shape of what the volume of allowable banned material would look like. For example, if the allowable amount of waste is up to 5% of the total volume, I take the whole pile of waste and visually divide it into four quarters. I visually divide that quarter again into another four quarters. Dividing the pile quarter-by-quarter results in a visual shape that is roughly 6.25% of the total volume of the load. If the allowable amount of banned material is up to 10% of the total volume, I divide the whole pile into quarters, and visually divide that into half to visualize a shape that is about 12.5% of the load. If the allowable quantity is up to 25% of the total volume, I divide the whole pile into quarters.
20. Then I compare the mass of banned material to the visualized reference shape. Although it is sufficient for a violation of the Bylaws if the mass of banned material is roughly the same shape as my visualized reference shape, I focus my attention on masses of banned material that are bigger than my reference shape. Using these different reference techniques, I establish a confidence level that the amount of banned material I see is more than the allowable amount in the Bylaws.
[22] If banned materials are present in the load, users are generally given the option of removing the banned materials (referred to as “reloading”) in which case they are not issued a disposal violation notice or charged an additional surcharge. The inspectors approach the users and inform them of the presence of banned materials and give them an opportunity to reload. It is acknowledged that reloading is not always an option, for example, reloading may not be possible where loads are disposed of in the pits. Also, users may drive away without giving the inspectors the opportunity to discuss the banned material with them. If the banned materials are not reloaded, the inspectors issue the user a disposal violation notice.
[23] Users may choose to reload the materials rather than dispose of them. According to an affidavit sworn by Brandon Ho, a senior project engineer with the GVSDD, in 2015, inspectors conducted 176,895 waste inspections and of these inspections, there were 16,829 incidents when an inspector saw banned materials but the user chose to remove the material from the waste disposal facility.
[24] The inspection process adopted by the inspectors is informed by several GVSDD documents. The Request for Proposal incorporated into the contract between GVSDD and Southern Cross states the following concerning the process to follow when banned materials are discovered:
6.1.2 If the load is in excess of the tolerance for banned material, the inspector will be required to do the following:
· Inform customer of the Bylaw violation and consequence for loads containing banned materials;
· Offer customer the opportunity to reload the banned materials if safe to do so under the direction of the operator;
· Determine customer's information including hauler name, customer type, truck number, licence plate number, and weigh scale ticket number;
· Write and present a surcharge notice notifying the driver of the infraction and surcharges that will be applied to the load;
· Take photographs of the load and banned materials;
· Notify the scale operator of the vehicle being surcharged; and,
· Assist the scale operator with the application of surcharges to the customer.
[25] Between April 2015 and February 2016, the petitioner’s waste disposal vehicles attended several of the GVSDD’s waste disposal facilities on a regular basis. The petitioner challenges 92 Notices issued by GVSDD during this period. The Notices are for a variety of infractions and include 68 notices issued due to the presence of materials subject to the single-item ban such as mattresses, tires, electronics, paint, and items over 2.5 meters in length. The other 24 notices are for materials subject to the percentage-based ban such as corrugated cardboard and clean wood.
[26] The petitioner paid all the surcharges imposed by the Notices, however, the petitioner claims each payment was “made under protest”. The petitioner now seeks to quash the Notices.
[27] As noted, the GVSDD is incorporated pursuant to An Act to Incorporate the Greater Vancouver Sewerage and Drainage District. Section 7A of the Act sets out the objectives and powers of the GVSDD in relation to waste management.
[28] The GVSDD’s material ban disposal program is established under the GVSDD’s power to regulate waste disposal facilities and to impose surcharges found in ss. 7A(5)(b) and (g). These sections state:
7A(5) In addition to its other powers, the Corporation shall have the following powers:...
(b) To establish the uses to which its waste disposal facilities may be put and by whom they may be used;
…
(g) To establish scales of charges for services rendered by the Corporation and for the use of any of the waste disposal facilities of the Corporation.
[29] Pursuant to s. 8(1) of the Act, the powers and functions of the GVSDD are exercised and discharged by an “Administration Board” whose decisions may be evidenced by bylaw, resolution, or order in accordance with s. 14(1).
[30] At the material times for this petition, the material ban disposal program was established in Bylaw No. 288, Bylaw to Establish the Tipping Fee and Solid Waste Disposal Regulations (2015) and Bylaw No 293, Bylaw to Establish the Tipping Fee and Solid Waste Disposal Regulations (2015). The Tipping Fee Bylaws have some differences; however, the relevant sections are substantially identical. These sections include:
“Surcharge” means the cost charged by [the GVSDD], in addition to the applicable tipping Fee, for disposing of Banned Materials at Disposal Sites as set out in Table 4 of Schedule “B” of this Bylaw;
“Tipping Fee” means the fee charged by [the GVSDD] for disposing of Garbage or Special handle Waste at Disposal Sites, as set out in table 1 of Schedule “B” of this Bylaw, which includes the Regional Services Rate;
…
4.0 Restrictions and Prohibitions
4.1 No person shall dispose of anything at a Disposal Site except in accordance with this Bylaw.
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5.0 Tipping Fees, Transaction Fee, Recycling Fees and Surcharges
5.1 Every person who disposes of Municipal Solid Waste at a Disposal Site must pay to the [GVSDD] the applicable Tipping Fees set out in Table 1 of Schedule "B", the Transaction Fee set out in Table 2 of Schedule "B", the applicable Recycling Fees set out in Table 3 of Schedule "B", and the applicable Surcharges set out in Table 4 of Schedule "B" and such charges must be paid before the person leaves the Disposal Site.
…
5.5 Every person who disposes of a Load at a Disposal Site that contains a quantity of Recyclable Materials other than Food Waste or Clean Wood that exceeds either 5% of the total weight of the Load or 5% of the total volume of the Load must pay a Surcharge in the amount set out in Table 4 of Schedule "B" of this Bylaw.
5.6 Every person who disposes of a Load at a Disposal Site that contains Contaminated Recyclable Paper that exceeds either 5% of the total weight of the Load or 5% of the total volume of the Load must pay a Surcharge in the amounts set out in Table 4 of Schedule "B" of this Bylaw.
5.7 Every person who disposes of a Load at a Disposal Site that contains Food Waste that exceeds either 25% of the total weight of the Load or 25% of the total volume of the Load must pay a Surcharge in the amounts set out in Table 4 of Schedule "B" of this Bylaw.
5.8 Every person who disposes of a Load at a Disposal Site that contains Clean Wood that exceeds either 10% of the total weight of the Load or 10% of the total volume of the Load must pay a Surcharge in the amounts set out in Table 4 of Schedule "B" of this Bylaw.
…
5.10 Every person who deposes of any Hazardous and Operational Impact Materials or Product Stewardship Materials must pay a Surcharge in the amount set out in Table 4 of Schedule “B” of this Bylaw plus the costs of remediation or clean up.
…
5.11 Where a single Load is subject to multiple Surcharges, the Surcharge with the highest value will apply for the weight of the entire Load.
5.12 Despite anything else in this Bylaw, the Manager may, at his or her discretion, waive a Surcharge for a specified period…
[31] The Tipping Fee Bylaws specifically bans three main categories of materials relevant to this petition: “Hazardous and Operational Impact Materials”; “Recyclable Materials”; and “Product Stewardship Materials” (collectively defined in s. 3.1 of the bylaws as “Banned Materials”). Hazardous and Operational Impact Materials is defined in Schedule C of the bylaws and includes agricultural waste, automobile parts and bodies, gypsum, mattresses, and items that exceed 1.2 meters in width and/or 2.5 meters in length. Recyclable Materials is defined in Schedule D and includes corrugated cardboard, green waste, and clean wood. Product Stewardship Materials is defined in Schedule E and includes items such as paint and pesticides.
[32] Table 4 of Schedule B of the Tipping Fee Bylaws provides the applicable surcharge fees. Materials subject to a percentage-based ban, such as those classified as Recyclable Materials are subject to a surcharge of 50% of the applicable tipping fee whereas, materials subject to the single-time ban, such as those classified as Hazardous and Operational Impact Materials and Product Stewardship Materials, are subject to a $50 surcharge.
[33] The Administrative Tribunals Act, S.B.C. 2004 c.45 does not apply to the GVSDD. The issue of the appropriate standard of review is therefore left to be determined by the principles articulated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9.
[34] The framework established in Dunsmuir to determine the appropriate standard of review requires courts to apply a two-step analysis: first, courts must “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision maker with regard to a particular category of question”; and “If the inquiry proves unfruitful, courts must analyze the factors making it possible to identify the proper standard of review.”: Dunsmuir para. 62.
[35] The parties advised that there are no prior decisions on the standard of review for the GVSDD in a similar context and there is no applicable privative clause. I therefore turn to the Dunsmuir factors, which are set out at para. 64 of the reasons for judgment:
64 The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
[36] The Court has emphasized that there is a presumption of a reasonableness standard and that presumption can only be rebutted in limited circumstances. In Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, the Supreme Court of Canada expressed the presumption as follows:
(1) Presumption of Reasonableness
22 Unless the jurisprudence has already settled the applicable standard of review (Dunsmuir, at para. 62), the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so,the standard of review is presumed to be reasonableness (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 at para. 46). This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.
…
(2) Categories That Rebut the Presumption of Reasonableness
24 The four categories of issues identified in Dunsmuir which call for correctness are constitutional questions regarding the division of powers, issues "both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise", "true questions of jurisdiction or vires", and issues "regarding the jurisdictional lines between two or more competing specialized tribunals" (paras. 58-61). When the issue falls within a category, the presumption of reasonableness is rebutted, the standard of review is correctness and no further analysis is required (Canadian Artists' Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197 (S.C.C.), at para. 13; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 (S.C.C.), at para. 22).
[37] The petitioner submits that the issue in this case falls within the category of a “true question of jurisdiction” and that the appropriate standard of review is therefore correctness. The petitioner submits that, given that it seeks to quash the Notices as ultra vires on the basis that they were applied in an arbitrary and discriminatory manner, this is the appropriate standard of review. In essence, the petitioner argues that the issue is one of “true jurisdiction” because if the Tipping Fee Bylaws were applied in a discriminatory and/or arbitrary manner, the GVSDD will have lost jurisdiction to issue the impugned Notices.
[38] The GVSDD responds that the issue of whether the evidence supports the impugned Notices requires the court to review how the inspectors performed waste inspections and issued the ensuing Notices. It submits that accordingly the issue is not a true question of jurisdiction, but, rather, the reasonableness of the inspectors’ decisions and decision-making process.
[39] “True questions of jurisdiction” or vires were said in Dunsmuir to be reviewable on a standard of correctness. However, the Court in Dunsmuir, at para. 59, defined a true question of jurisdiction in the narrow sense as “whether or not the tribunal had the authority to make the inquiry”. The majority went on to explain that “true jurisdictional questions arise when the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”.
[40] The exceptional nature of true questions of jurisdiction was subsequently confirmed by the Court in Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 33 and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. at para. 26. Our Court of Appeal in Friends of Davie Bay v. Province of British Columbia, 2012 BCCA 293 subsequently summarized the law as follows:
27 In Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Court distinguishes between questions of true jurisdiction and those involving interpretation of an administrative body's enabling statute. The majority, per Rothstein J., said this at para. 34:
[34] The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particular familiarity" should be presumed to be a question of statutory interpretation subject to deference on judicial review.
28 Mr. Justice Rothstein stated at para. 38 that the "true questions of jurisdiction" category causes confusion and unnecessary cost in litigation. He concluded at para. 30 that, for questions involving an administrative body's interpretation of its home statute, the standard of review should presumptively be reasonableness, and the party propounding correctness should bear the burden of identifying a true question of jurisdiction raised by the decision in issue. He said at para. 39:
[39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's interpretation of its home statute on the deferential standard of reasonableness.
[41] In this case, I conclude that the petitioner has not met the burden of demonstrating why the decisions of GVSDD should not be reviewed on a standard of reasonableness. This is not a case that involves a true question of jurisdiction as such questions have been defined by the Supreme Court of Canada. In my view, the essential issue concerns the exercise by the GVSDD of its authority to interpret and apply its own statute and, specifically, the manner in which its inspectors enforce the statutory scheme. This is a matter within the authority of the GVSDD.
[42] In that regard, the petitioner does not dispute that the GVSDD acted within its jurisdiction when it enacted the material ban disposal program through the Tipping Fee Bylaws or required payment of surcharges for bylaw contraventions. Nor does the petitioner dispute that inspectors had authority to conduct waste inspections and issue violation notices. Rather, the petitioner takes issue with the manner in which the GVSDD exercised its authority to issue disposal violation notices. The question at issue, therefore, involves the interpretation and implementation of its home statute.
[43] Under the statutory scheme, the GVSDD has broad discretion to regulate the use of the waste disposal facilities and implement a material ban disposal program, including the enforcement of the Tipping Fee Bylaws, as a means of achieving its goal of reducing waste and diverting recyclable materials. The issuance of disposal violation notices flow from its statutory authority and are based upon the decision to use random, visual inspections as a means of determining the presence and quantity of any banned substances disposed of at its facilities. These are essentially factual determinations that are non-adjudicative in nature and are not the type of exceptional questions which justify a correctness standard.
[44] Accordingly, I am satisfied that the Notices issued to the petitioner by the GVSDD should be assessed under a reasonableness standard.
[45] The petition therefore raises two issues for determination:
1. Did the GVSDD apply the Tipping Fee Bylaws in an arbitrary manner?
2. Did the GVSDD apply the Tipping Fee Bylaws in a discriminatory manner?
[46] The petitioner alleges that the GVSDD unlawfully discriminated against it by applying the Tipping Fee Bylaws in a manner which singled out commercial users. It claims that, during the material times, residential users were issued notices only approximately 4% of the time when banned materials were found in their loads, whereas the petitioner, a commercial user, was issued notices 93% of the time. The petitioner does not allege bad faith; however, it submits that the inspectors have failed to implement the Tipping Fee Bylaws in a fair manner which would require the inspectors to apply the bylaw equally to all users of the waste disposal facilities and to issue notices on a mandatory basis. The petitioner challenges 92 Notices on this basis.
[47] Additionally, or in the alternative, the petitioner challenges 24 Notices that specifically were issued for loads that were found to contain materials subject to the percentage-based ban on the grounds that they were issued in an arbitrary manner. The petitioner challenges the GVSDD’s visual inspection process used by the inspectors, alleging that inspectors cannot reliably calculate the precise volume of banned material. The petitioner claims that their decisions are therefore arbitrary.
[48] The GVSDD submits that there is no evidence to support the petitioner's allegations that the inspectors acted in a discriminatory manner. It claims that the petitioner’s calculation of commercial versus residential users fails to account for the context in which the Notices were issued and, further, that there is a lack of evidentiary foundation to support the adverse inferences alleged by the petitioner. The GVSDD asserts that the inspectors' decisions to issue the Notices were reasonable. It submits that each decision was based on the appropriate and relevant factors, that the inspectors followed a logical and systematic inspection procedure which led them to conclude that the observed material in each case came from the petitioner's waste collection vehicles.
[49] In considering the respective positions of the parties, I begin by observing that a decision is reasonable if it "falls within a range of possible, acceptable outcomes" having regard to the process followed to reach that decision: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. at para. 36; Dunsmuir, at para. 47; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59. In the latter case, the Supreme Court of Canada described the reasonableness standard as follows:
59 Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.
[50] The reasonableness analysis is contextual and the “fundamental question is the scope of decision-making power conferred on the decision-maker by the governing legislation” which is determined “by the type of case at hand”: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para. 18.
[51] Here, the petitioner’s claims require a reasonableness review of the Notices in the context of allegations of abuse of discretion, specifically, arbitrariness and discrimination. As a general matter, I accept that a statutory decision that is made for considerations that are arbitrary, in the sense that they are irrelevant or extraneous to the legislative purpose or irrational, incomprehensible or otherwise the result of an abuse of discretion, may be found to be unreasonable: Malcolm v. Canada (Fisheries and Oceans), 2014 FCA 130 at para. 35. However, as confirmed by the Federal Court of Appeal in that case, the ultimate question remains whether the impugned decision falls within the range of reasonable outcomes bearing in mind the context in which the decision is made:
…The ultimate question in judicially reviewing the Minister's decision in this case is to determine whether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made and the fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion to that of the Minister's. It is with these considerations in mind that the reasonableness of the Minister's decision should be determined.
[52] I also accept that a decision which is made for discriminatory reasons may be unreasonable. However, it is accepted that not every distinction gives rise to discrimination and discrimination by itself is not necessarily a ground for review: Vriend v. Alberta, [1998] 1 S.C.R. 493. A broad grant of discretionary authority has been construed as authorizing discrimination unless it is seen as being contrary to public policy: Johnston Canyon Co. v. Canada (Attorney General), 2008 FC 940 at paras. 27-32.
[53] In David Jones & Anne de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 193 the learned authors describe discrimination as a basis for review as follows:
(b) Discrimination
There is also a presumption that a statutory delegate must not exercise its discretion in a discriminatory manner. Chief Justice McKeigan stated the test for what constitutes discrimination in Lacewood Development Co. v. Halifax (City) as follows:
Wrongful discrimination involves two elements, both of which must be present before a by-law should he condemned on this ground:
(1) The by-law must discriminate in fact. To use the words of Middleton, J. in the “classic definition’’, by-laws discriminate if they “give permission to one and refuse it to another”.
([2]) The factual discrimination must be carried out with the improper motive of favouring or hurting one individual and without regard to the public interest.
Some more recent cases suggest that the second part of the Lacewood test—an improper motive—is no longer required to establish discrimination. These cases focus more on whether there has in fact been discrimination and on whether the enabling legislation authorizes it (either expressly or impliedly), or whether the discrimination was necessarily incidental to the exercise of the delegate’s powers.
[54] Whether the discrimination is wrongful will, therefore, depend on a consideration of the nature of the discrimination alleged and the authority of the decision maker.
[55] Guided by these general principles, I will address the petitioner’s claims.
[56] The petitioner claims that visual inspections are subjective and imprecise and that the inspector’s conclusions to issue Notices for the presence of percentage-based banned items are therefore arbitrary and unreasonable. The petitioner refers to the photographs underlying the Notices issued by the GVSDD and contends that the method described by Ms. Hackett and the other inspectors cannot reasonably be used to determine the amount of banned items in the petitioner’s trucks given the quantity of material being unloaded on the tipping floor or in the pit.
[57] The GVSDD responds that while the photographic images taken by the inspectors may be “imperfect”, they provide evidentiary support for the inspectors’ observations of banned materials at the time of the inspections. The inspectors’ evidence was that they follow a logical and analytic approach in which they visually observe the waste being unloaded from the vehicles and compare any amount of observed banned material in comparison to the permitted threshold (i.e. 1%, 5%, 10%, or 25%). They use similar techniques to reach a level of confidence in any observed disparity. They deposed to adopting the “mantra” that a violation notice will not be issued if there is any doubt as to whether there has been a contravention: “if in doubt, don’t give it out”. They also deposed to attempting to speak to any user who they believe has contravened the threshold amount of banned material, for any information the user may provide.
[58] I note that the petitioner has not adduced any evidence that its vehicles did not contain banned material or that any banned material was not beyond the threshold amount. There is no evidence refuting the particular waste inspections which are the subject of the petitioner’s challenge. Indeed, I agree with the GVSDD that the photographic evidence supports the presence of banned material in the petitioner’s vehicles at the time the Notices were issued.
[59] Essentially, the petitioner is nevertheless asking the court to infer the visual inspections were unreasonable based upon its view of how inspectors determined whether the amount of banned material exceeds the threshold. In considering whether the visual inspections utilized by the GVSDD constitute a reasonable means of determining whether there has been compliance with the statutory requirements, the context is important. The GVSDD is tasked with managing vast amounts of waste in the region and with attempting to limit the impact of this waste on the environment by, among other things, diverting certain types and amounts of waste from ending up in landfills. The seven waste inspectors rotate among the nine facilities operated by the GVSDD. As noted, there were 176,895 waste inspections in 2015.
[60] Given the nature of the waste disposal facilities, the purpose of the material ban disposal program, and the large amount of waste coming into the facilities, including from commercial users, I find that visual inspections provide a reasonable means of enforcing the material ban disposal program and of applying the surcharge system. Visual inspections allow the GVSDD to observe whether banned or prohibited substances are present in user vehicles and to determine whether the banned substances exceed the stipulated threshold.
[61] In that regard, in the absence of evidence to the contrary, I accept that the inspectors followed a methodical approach to their inspections. All of the inspectors deposed that they followed essentially the same steps when they performed the visual inspections of the waste that led to the disputed Notices. They observed the material being unloaded from the vehicles in order to determine the presence of any banned material that exceeded the threshold or any material which was banned outright. They recorded their observations in writing immediately after the inspection. The handwritten notes on each violation Notice includes the date and time of the inspection; the facility; the type and quantity of the banned material which was observed; the relevant provision of the Tipping Fee Bylaws and applicable surcharge; whether the driver spoke to the inspector before the vehicle left the facility; and information about the petitioner's waste collection vehicle that delivered the banned materials. The photographs taken by the inspectors are consistent with there being banned or prohibited material in the load. Each Notice was also consistent with that inspector's daily record.
[62] The process described by GVSDD inspectors to determine the relative amount of banned material does not, in my view, bear the hallmarks of an arbitrary decision. The “start-to-finish” approach took into account the conditions at the various facilities and the potential for contamination between loads. The focus on the relative amount of observed banned material to total volume of material disposed was a logical means of determining whether the threshold was exceeded. The manner in which the visual inspections were carried out, as reflected in the evidence of the inspectors, demonstrates a systematic approach and a high level of attention to the loads being inspected and, generally, to carrying out their inspection duties. Drivers were given the opportunity of reloading banned or prohibited materials.
[63] While the petitioner’s assertion that the process of visual inspection is flawed because inspectors cannot accurately quantify the volume of banned material, given the large amount of waste unloaded from its vehicles, I consider that the decision inspectors must make is not to quantify with precision the volume of banned material but to come to a rational conclusion that the volume observed is in excess of that permitted. The Tipping Fee Bylaws sets low threshold amounts of banned material - 1%, 5%, 10% or 25% - relative to the total volume of material disposed and the inspectors must only conclude that the amount present is more than the threshold. Further, although the commercial vehicles unload a large amount of waste and the waste initially unloaded may be obscured by subsequent waste, as noted, the evidence of inspectors is that they observe the entire unloading process in order to determine if there has been a violation. Various notes of the inspectors refer to the banned material being “buried under load”. The petitioner has not adduced any evidence that the visual inspections conducted by the inspectors cannot reasonably determine the presence of banned or prohibited material or the relative volume of banned material such as to call into question the reasonableness of their decisions. I am not persuaded that the issuance of Notices based on visual inspections, as described by the inspectors, was inherently unreliable or unreasonable.
[64] In that regard, as noted by the GVSDD, the use of visual observations has been accepted by the courts as fair and as a reasonable means of inspection in other statutory contexts: R.v. Zargarian, 2013 BCSC 460 and United Contractors Ltd. v. British Columbia, [1993] B.C.J. No. 431 (S.C.).
[65] In R.v. Zargarian, this court considered an appeal of a conviction in Provincial Court of speeding contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318. The appellant had argued that the verdict was unreasonable or could not be supported by the evidence as the only evidence of his speed was the visual estimation of an R.C.M.P. Constable and that this was insufficient to support the finding that the appellant was driving a motor vehicle "at a greater rate of speed than 50 kilometres per hour". In rejecting this argument, the court accepted visual estimation of speed as a reliable means for meeting the evidentiary burden of proof beyond a reasonable doubt to convict a driver for speeding.
[66] A similar conclusion was reached in the civil context in United Contractors Ltd.. In that case, the plaintiff supplied hog fuel by the truck load and payment was based on a pre-determined volumetric capacity of the plaintiff’s trucks multiplied by the number of trucks. The plaintiff objected to the defendant's deductions from the amount of payment based on visual inspections of a truck's actual content during delivery or when a load was "dumped". Despite evidence of variations that could occur in the visual appearance of the matter being inspected Mr. Justice Boyle dismissed the plaintiff's claim:
23 Dealing with the accuracy of measurement, I accept the evidence of the Defendant's witnesses that the means of inspection were fair and reasonable at the site even though there were subjective and objective variables. …
[67] In this case, I am similarly satisfied that the use of visual inspections provides a reasonable means of enforcing the Tipping Fee Bylaw. The GVSDD has established enforcement procedures which are directly and rationally related to the intended object of the Bylaw which is to determine the presence and amount of banned material. I therefore dismiss this aspect of the petitioner’s claim.
[68] In support of the claim that GVSDD discriminated against the commercial users, the petitioner relies on calculations it prepared using the GVSDD worksheets that pertain to the days the 92 Notices were issued to the petitioner. The GVSDD worksheets describe the inspectors’ activities in relation to their inspections and the Notices imposed. The petitioner claims that these worksheets highlight an approach by the inspectors that unfairly penalizes commercial users over the residential users.
[69] For example, the petitioner refers to the worksheet for December 1, 2015. On this day, one of the petitioner’s vehicles was issued a notice for dumping a load with over 5% old corrugated cardboard. The worksheet shows that, during the day, the inspector conducted 135 inspections. From those inspections, the inspector found banned materials in 24 vehicles: 16 from residential users and 8 from commercial users. Of the 16 residential users, no notices were issued whereas four notices were given to commercial users. The petitioner conducted this type of analysis for each of the 92 worksheets that accompanied the impugned Notices and, on this basis, it submitted that residential users are issued Notices only approximately 4% of the time when banned materials were found in their loads, as compared to 93% of the time for commercial users.
[70] The petitioner does not dispute that its loads contained banned material, but rather asserts that the Notices should be quashed as the Tipping Fee Bylaws were not administered in an even handed manner. The petitioner refers to the decision of the Court of Common Pleas in Rooke’s Case, 5 Co. Rep. 99 b, and Claudio’s Restaurant Group Inc. v. Calgary (City), 10 Alta.L.R. (3d) 297 (Q.B.). In the former case, the Court found that a sewer assessment was unlawful in taxing only persons whose land adjoined the river bank and not all who were in danger of sustaining damage from the river. In the latter case, the court found a noise bylaw unreasonable for discriminating between classes of users.
[71] I consider the decision of the Queen’s Bench in Claudio’s Restaurant is distinguishable from the case before me in the sense that, in that case, the City of Calgary had included an amendment to the bylaw which expressly prohibited the operation of sound amplification devices by business in a specified area of the city. The Court found that the relevant provision of the Municipal Government Act, R.S.A. 1980, c. M-26, did not allow the council to pass a bylaw which made a distinction between users and, therefore, the City had unlawfully discriminated against the business that had challenged the bylaw. Here, the Bylaws do not, on their face, distinguish between users. They apply to every person using GVSDD facilities.
[72] I also consider Rooke’s Case distinguishable in that there, the sewer commission had made a decision not to tax certain property owners. Here, the evidence is that the GVSDD has issued violation notices to both residents and commercial users.
[73] Nevertheless, I accept the principle underlying the decision in these cases - that it would generally be unreasonable to discriminate between certain classes of users in the application of a bylaw in the absence of legislation allowing a municipal authority to do so. That said, in this case, I am not persuaded that the petitioner has established that the GVSDD has wrongfully discriminated between residential and commercial users in the enforcement of the Tipping Fee Bylaws.
[74] First, the petitioner’s analysis is not based on a full record of what occurred at the waste disposal facilities as it is not based on the worksheets for all the loads processed by the GVSDD or even all the worksheets for every day a notice was given to the petitioner. The undisputed evidence is that between April and July of 2015, the petitioner brought 1,278 loads to GVSDD facilities and received 78 violation notices for banned material, of which 46 were disputed. Between December of 2015 and March of 2016, the petitioner brought 1,357 loads to GVSDD facilities and received 39 notices of which 26 notices were disputed. However, the petitioner’s analysis is based on the worksheets accompanying 92 Notices that the petitioner has specifically selected to challenge. The analysis presented by the petitioner provides an incomplete picture of the activities of the inspectors. I find therefore, it is not a reliable basis for concluding that an adverse inference should be drawn.
[75] Second, the petitioner’s analysis does not take into account the context in which the Notices were issued. For example, the petitioner has failed to address the type of facility where the load was dumped (i.e. onto "tipping floor" or into a "pit"); the type of material that was present; whether the banned material could be reloaded; and whether the driver sought to remove the banned material or drove off without speaking to the inspector. Fundamentally, the petitioner’s analysis does not account for the vastly different volumes involved in commercial loads as opposed to residential loads and the nature of their interactions with the inspectors.
[76] In my view, the number of violation notices issued to commercial as opposed to residential users can reasonably be explained by the differences in the ability of residential users to remove prohibited substances at the time of inspection and differences in the motivation to avoid payment of additional surcharges. For example, the evidence of the GVSDD was that users are not permitted to remove materials which have been dumped into a pit. While a residential user would have the ability to remove banned material before unloading into a pit, the commercial users would not have the same ability given that it unloads directly into the pit. Further, even where a commercial user unloads onto a tipping floor and could theoretically remove banned material, given the volume of waste in a single load and the nature of the banned substances, it may not be physically possible or practical for a commercial user to try and remove such material. Further, the evidence was that commercial users do not always avail themselves of the opportunity to speak to the inspectors after the inspection, but simply drive away from the facility after unloading. The commercial users may not have had the same motivation as residential users to avoid the surcharge, although there is evidence that on certain occasions the petitioner’s drivers did reload and, on those occasions, did not receive a notice. As noted above, according to the evidence, there were 176,895 waste inspections performed at GVSDD facilities in 2015, there were 16,820 instances when drivers re-loaded banned material and did not pay the surcharge; and there were 4,835 violation notices issued.
[77] Third, the evidence is that various residential users were issued violation notices by GVSDD for disposing of banned material. I find that the residential users were also subject to enforcement of the Tipping Fee Bylaw. The difference in the relative number of violation notices issued to commercial as opposed to residential users suggested by the petitioner, even if I found its analysis reliable, may be attributable to other factors as noted above. While the petitioner asks the court to draw an adverse inference from the fact that certain of the inspectors’ worksheets do not refer to residential users reloading, I do not consider such an inference to be justified in the face of the undisputed evidence of the inspectors as to the process they use to determine whether to issue a notice, which process they deposed they use for every waste inspection. The evidence of the inspectors persuades me that the inspectors carried out their duties diligently and in accordance with the prescribed requirements for material disposal ban inspections. Taken as a whole, their evidence reflects a commitment to implementing the goals of the material ban disposal program.
[78] Further, I observe that claims that a bylaw has not been uniformly enforced have generally been rejected as a defence to a charge that a bylaw has been violated. The GVSDD referred to the decision of Mr. Justice Voith in T.S.G. Sales Ltd. v. Vancouver (City), 2012 BCSC 1177. In that case, the petitioners’ adult entertainment business was operating an adult entertainment store without the required development permit and the City sought an order prohibiting them from acting in contravention of the zoning bylaw. The petitioners claimed that there were other businesses that had not complied with the requirements of the zoning bylaw and no enforcement action had been taken against them. The petitioners alleged that the City had thereby acted in a discriminatory manner. Justice Voith at paras. 58-73 rejected the petitioners’ claim noting, on the authority of Polai v. Toronto (City), [1973] S.C.R. 38, that even if the City had acted in a discriminatory fashion, this would not necessarily override the public interest in enforcing the bylaw. In the Polai case, the Supreme Court of Canada agreed with the court below that lax or selective enforcement cannot afford a defence to enforcement of a zoning bylaw.
[79] Justice Voith also referred to the decision of Burnaby (City) v. Oh, 2010 BCSC 1970; aff’d 2011 BCCA 222. In that case the Court of Appeal upheld the decision of Mr. Justice Greyell rejecting the claim that the municipality should not be permitted to enforce various bylaws prohibiting illegal suites because there were many other such suites in Burnaby. The Court said this at para. 42:
In this case, Justice Greyell concluded that the appellant, in asserting discrimination as a defence, could not rely on the City's alleged non-enforcement of the Bylaws against others in order to defeat the application the City had brought against her. The correctness of the judge's conclusion on this point is well-supported by the decision in Polai v. Toronto (City), [1970] 1 O.R. 483 (Ont. C.A.), aff'd [1973] S.C.R. 38…
[80] Mr. Justice Voith concluded that Polai and Oh were determinative of the case before him and noted that the petitioners were seeking to place the focus on “other stores” when the real issue was the illegality of their own conduct. He said that there was no basis for the claim that the petitioners had “immunity” until each of the other stores was prosecuted.
[81] While those cases involved a contravention of zoning bylaws, the principle articulated in those cases has resonance where the petitioner is not contesting the presence of banned material but it is nevertheless seeking to set the Notices aside on the basis that residential users were not similarly fined.
[82] Accordingly, I do not accept that the petitioner’s contention that the Tipping Fee Bylaws were applied in a discriminatory manner.
[83] For the reasons set out above, the petition is dismissed.
[84] The GVSDD is entitled to its costs unless there are relevant circumstances pertinent to this matter which have not been brought to the attention of the court.
“Harris, J.”