2007 BCCA 211 Tsawwassen Residents Against Higher Voltage Overhead Lines Society v. British Columbia (Utilities Commission)

Before:	The Honourable Mr. Justice Thackray
	The Honourable Mr. Justice Lowry
	The Honourable Mr. Justice Chiasson

J.J. Arvay, Q.C.	Counsel for Tsawwassen Residents Against Higher Voltage Overhead Lines Society
D. G. Cowper, Q.C., A.W. Carpenter and K. Grant	Counsel for the British Columbia Transmission Corporation
C.W. Sanderson, Q.C. and M. Storoni	Counsel for the B.C. Hydro and Power Authority
G.H. Copley, Q.C. and J. Penner	Counsel for the Attorney General of British Columbia
Place and Date of Hearing:	Vancouver, British Columbia
March 26 and 27, 2007
Place and Date of Judgment:		Vancouver, British Columbia
April 13, 2007

Written Reasons by:

The Honourable Mr. Justice Thackray

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Chiasson

Reasons for Judgment of the Honourable Mr. Justice Thackray:

[1] This is an appeal by residents of Tsawwassen and the Gulf Islands of a decision of the British Columbia Utilities Commission. On 7 July 2006 the Commission granted a certificate to the British Columbia Transmission Corporation for the construction of overhead electrical power lines in the geographic areas inhabited by the residents. For the reasons that follow I would dismiss the appeal.

[2] I will give a brief outline of the matter. More details can be found in the decision and Order No. C-4-06 of the Commission dated 7 July 2006; the Reconsideration decision and Order No. C-141-06 of the Commission dated 9 November 2006; the reasons for judgment of Madam Justice Levine, 2006 BCCA 496 and 2006 BCCA 537; and the reasons for judgment of Madam Justice Huddart, 2007 BCCA 95.

Background

[3] On 8 September 2003 the Commission rendered a decision and Order No. G-55-03 on the Vancouver Island Generation Project, holding there would be an electrical energy capacity shortfall on Vancouver Island commencing in the winter of 2007/08. A proposal to produce electricity at Duke Point near Nanaimo by way of a coal-fired plant resulted in significant opposition and litigation. The project was abandoned after this Court granted leave to appeal some of the issues: Joint Industry Electricity Steering Committee v. British Columbia Utilities Commission, 2005 BCCA 330.

[4] The Transmission Corporation is responsible for operating the British Columbia Hydro and Power Authority transmission system. It is also responsible for planning, constructing and obtaining all regulatory approvals for enhancements, reinforcement and expansion of the transmission system. On 10 November 2004 the Transmission Corporation applied to the British Columbia Environmental Assessment Office to have the Vancouver Island Transmission Reinforcement Project designated a “reviewable project” under the Environmental Assessment Act, S.B.C. 2002, c. 43, and the Reviewable Projects Regulation, B.C. Reg. 370/2002. The Environmental Assessment Office designated the Project a reviewable project, requiring it to be subject to an environmental assessment process. Following a comprehensive review, the Transmission Corporation received provincial environmental certification for the Project on 12 February 2007: Environmental Assessment Certificate #E06-06.

[5] On 7 July 2005 the Transmission Corporation applied to the Commission for a certificate pursuant to sections 45 and 46 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, for approval of the project. On 8 November 2005 the Tsawwassen residents applied pursuant to section 25 of the Act to have the existing transmission lines on the right of way removed. That application was consolidated with the Transmission Corporation’s application for a certificate to increase the capacity of the line. The Commission also consolidated proceedings in the Vancouver Island Cable Project.

[6] In January 2006 town hall meetings were held on Salt Spring Island and in Tsawwassen. On 6 February 2006 the public hearing commenced before the Commission. The evidentiary phase of the hearing ended on 23 March 2006. On 30 and 31 May 2006 the Commission heard oral arguments. On 7 July 2006 the Commission issued a certificate approving the project. A reconsideration hearing was held and reasons released confirming the Commission’s earlier decision.

[7] The Tsawwassen residents applied in August 2006 to this Court for leave to appeal the decision of the Commission. They raised 21 grounds of appeal. The hearing took place before Madam Justice Levine on 25 October 2006. She issued short reasons on 7 November 2006 granting leave on one issue: “whether the existing right of way agreements permit the construction of new overhead transmission lines under option 1.” This was the issue as framed by the Tsawwassen residents. On 30 November 2006 she issued detailed reasons. On 9 January 2007 an order was entered, approved as to form by all parties, framing the question as noted above.

[8] The hearing was reopened on 18 January 2007 in the action by the Island residents to clarify whether the leave included construction of the new line in the Gulf Islands. Madam Justice Levine issued reasons on 12 February 2007 stating leave was granted only with respect to the line in Tsawwassen. The amended issue read: “whether the existing right of way agreements permit the construction of new overhead transmission lines under option 1 in Tsawwassen.” An order was entered on 12 February 2007, approved as to form by all parties, which included the wording as shown above.

[9] Pursuant to an application by the Tsawwassen residents, the decision of Madam Justice Levine was reviewed by a division of this Court. The hearing took place on 25 January 2007. Mr. Arvay appeared for both the Tsawwassen and Island residents. Madam Justice Huddart issued reasons on 12 February 2007 on behalf of the Court. She styled the matter as an “application to vary an order of a chambers judge centres on the question whether the ‘precautionary principle’ is a rule of statutory construction that must be applied to environmental legislation.”

The right of way issue

[10] The issue referred to this Court by Madam Justice Levine was as follows:

Whether the existing right of way agreements permit the construction of new overhead transmission lines under option 1 in Tsawwassen.

[11] However, before the oral hearing it came to the Court’s attention from the appellants’ factum that the appellants were not basing their appeal on that issue. The opening statement in the appellants’ factum states:

The appellants … will also argue that the [Commission] was simply incorrect when it said the existing [right of way] agreements “can reasonably be assumed to provide [the Transmission Corporation] with the right to build Option 1.” While the ultimate and final determination of the scope, extent and continued validity of the [right of way] agreements can only be decided by a court hearing a claim in contract, given the importance that this assumption had in the [Commission’s] decision it will be submitted that this Court can and should declare that the [Commission’s] assumption was in error.

In the leave hearing before Madam Justice Levine the Tsawwassen residents asserted that the Commission decided that the existing right of way agreements permitted construction of the line. That assertion was incorrect. The Commission stated as follows at page 105 of its reasons:

If the ROW agreements provide [the Commission] with the right to build Option 1, then Option 1 has advantages over the other options that are relevant to the Commission Panel’s selection of the preferred Option. The Commission Panel notes that this issue is a contractual matter for the courts.

[Emphasis added.]

[12] The appellants’ opening statement forecast how they were proposing to deal with the issue that had been referred. That is, by recasting it. In the body of the factum the appellants sets forth the issue as formulated by Madam Justice Levine and then stated:

90. It is submitted that this is a question of contract and the Court of Appeal cannot on this appeal definitely determine this question on the basis of the evidence before the Commission.

91. However, what the Court of Appeal can, and we respectfully submit should do, is determine whether the Panel was correct in saying, that the [right of way] agreements “can reasonably be assumed to provide [the Transmission Corporation] with the right to build Option 1.”

[Emphasis added.]

…

B. The Court should not decide finally the rights of landowners and [the Transmission Corporation] under the Tsawwassen [right of way agreements]

96. A final determination of contractual rights should only be made on the basis of a robust factual foundation in a contract action specifically brought for that purpose so that a court may have before it sufficient facts to ensure the proper attainment of justice.

97. The Appellants submit that the evidence before the Court is far from sufficient for the Court to make a final determination of the respective rights of [the Transmission Corporation] and each and every of the 150 successors in title to the seven original [right of way] grantors. This is true for a number of reasons.

98. The evidence that was before the [Commission] in the Certificate process does not provide a proper or sufficient factual foundation. It was never in the mandate of the Panel to adjudicate the rights under the [right of way agreements] and the Panel itself said it did not have jurisdiction to adjudicate such a matter and it was a question for the courts.

[Citations omitted.]

The factum ended with the suggestion that “a holding by this Court interpreting the ROW grants … would be ‘socially useful’.”

[13] In the oral hearing, counsel for the residents submitted that based on the question as framed, the Court could answer it in favour of the respondents but not in favour of the residents. He said the affirmative answer for the respondents would have to be on the premise that the “only thing relevant is the contract.” However, he contended that this Court could not answer the question in the negative “because it does not have the record.” He added: “I can’t win, the best I can get is a ‘maybe’ and we will settle for that.”

[14] The Transmission Corporation, in its factum at paragraph 78, says this is a “stunning volte-face.” It submits the appellants’ position should be rejected as it “avoids the question before the Court and wrongly presumes this hearing is in the nature of a judicial review.” The Transmission Corporation says there is a stated issue before the Court and the appellants are obliged to address it:

The Appellants’ argument … suggests an entirely different approach to this proceeding, premised on the notion that the current proceeding is in the nature of a judicial review of administrative action rather than an appeal on a point of law.

[15] Madam Justice Levine was aware that the Commission had stated the issue as framed is a matter for the courts and she alluded to that in her reasons. However, that was the issue on which counsel for the residents chose to proceed before her. He now concedes the issue as framed is inappropriate as this is not a court of first instance. Nor does this Court, as pointed out to counsel, sit to deliver “maybes” or deliver opinions simply to be “socially useful.” .

[16] Counsel for the residents submitted that because this Court could not determine the issue as formatted it should accept the reformatted issue and remit the matter back to the Commission to reconsider its decision that the right of way agreements can reasonably be assumed to provide the right to build the line in question. The Court asked the respondents if they would consent to the issue being reworded in that form. All of the respondents rejected the invitation. I am of the opinion that in the circumstances of this case the reformatted question cannot be heard by this Court without the consent of the respondents.

[17] No previous application was made for leave to appeal on the new issue and, in my opinion, it is unlikely leave would have been granted if it had been made. The Commission’s assumption was based on a previous decision of the Court, a fact that was recognized by the residents through their unsuccessful application to have this appeal heard by a five-judge division.

[18] I would dismiss the appeal on the issue of the rights of way.

The precautionary principle issue

[19] In writing the Court’s reasons for judgment on the review of Madam Justice Levine’s order, Madam Justice Huddart said as follows:

[1] This application to vary an order of a chambers judge centres on the question whether the "precautionary principle" is a rule of statutory construction that must be applied to environmental legislation.

[2] The issue was not framed in quite this way before the chambers judge when she denied leave to appeal on this issue:

The Commission erred in law by failing to apply the precautionary principle or the principle of prudent avoidance in interpreting sections 45 and 25 of the [Utilities Commission] Act.

[20] Madam Justice Huddart then noted that “the meaning and application of the precautionary principle are controversial in academic literature and little discussed in jurisprudence.” She said there were submissions and material before the Court that had not been made or supplied to Madam Justice Levine. She ended her reasons as follows:

[4] The essence of the applicant's submission is that Levine J.A., like the Commission, erred when she failed to recognize the applicants are seeking to extend the application of the precautionary principle from the permissive rule discussed in Spraytech to a mandatory rule of construction of provisions like ss. 45 and 25 of the Utilities Commission Act.

[5] In my view, this is a pure question of law deserving of consideration by a panel. I would vary the order of Levine J.A. to grant leave to appeal on this issue.

[21] An order was entered 2 April 2007 granting leave on the following issue:

Whether the British Columbia Utilities Commission erred in law in not finding the pre-cautionary principle is a mandatory rule of construction in the interpretation and application of ss. 25 and 45 of the British Columbia Utilities Commission Act.

In spite of this the appellants framed the issue in the following manner in their factum:

Whether the Precautionary Principle is a mandatory rule of construction of ss. 45 and 25 of the Utilities Commission Act.

This Court pointed out that the issue as framed by the appellants was not in keeping with the issue as framed before Madam Justice Levine or as framed in the order of the reviewing division of this Court. After considerable discussion it was agreed that the issue would be as formulated before Madam Justice Levine and in the order of the reviewing division. Nevertheless, counsel for the residents presented his submissions in conformity with the issue as framed in his factum which was directed at having this Court make a declaration that the precautionary principle is a “norm of customary international law”, part of the common law of Canada and a mandatory rule of construction to be applied to domestic legislation.

[22] The appellants sought this declaration without reference to “whether the British Columbia Utilities Commission erred in law” and, indeed, without any reference to the case at bar. They enunciated this position in their factum as follows:

60. This is not the forum or occasion to argue the application of the [precautionary principle] in the context of this case as that is not the ground on which leave to appeal was granted.

[Emphasis added.]

[23] A definition of “precautionary principle” is, in itself, an elusive matter. Counsel for the residents referred to Trouwborst, “Evolution and Status of the Precautionary Principle in International Law” (The Hague: Kluwer Law International, 2002). At page 51 the author set forth what the residents use as a definition:

With bearing on its definition, a number of core elements of the precautionary principle can be inferred from state practice without too much difficulty: in the presence of a threat of (non-negligible) environmental harm accompanied by scientific uncertainty, regulatory action should nevertheless be taken to prevent or remedy the hazard concerned.

[24] Counsel for the Transmission Corporation said his client is satisfied with the definition found in the Bergen Ministerial Declaration of Sustainable Development as cited by Madam Justice L'Heureux-Dubé in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, at para. 31:

Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

[25] The respondents contend that while not explicitly using the term “precautionary principle,” the Commission exhibited that it had used all of the precautions that could be embodied in such a principle. Mr. Cowper pointed to the following passage from the Commission’s reasons at page 63:

The Commission has addressed the issue of health concerns from EMF exposure in several previous decisions … and concluded that the scientific evidence regarding EMF effects is inconclusive and does not support the theory that power line EMF is a health hazard. In view of the lingering uncertainty and until science is able to provide more definitive evidence, the Commission has previously concluded that a strategy of prudent avoidance and low cost attenuation where possible is appropriate … and has expressed an intention to keep itself apprised of EMF research.

[26] The Commission’s reasons note there were expressions of opinion from several intervenors to the proceedings who “voiced concerns about possible adverse health effects caused by exposure to EMF.” It also recorded that the residents had retained Dr. Magda Havas who disagreed with the conclusions of many national and international organizations and expressed her view that “magnetic fields associated with high voltage transmission lines are a cancer promoter.” The Commission also noted the evidence of Dr. Linda Erdreich who prepared a rebuttal to the testimony of Dr. Havas. She testified that studies found a “weak statistical association between long-term exposure to average magnetic field levels greater than 3-4 mG and childhood leukemia, but the scientific consensus is that there is not a cause-and-effect relationship between magnetic field exposure and childhood leukemia.”

[27] At page 70 of its reasons the Commission stated:

The Commission Panel concludes that the EMF exposure guidelines established by organizations such as the World Health Organization, ICNIRP, and Health Canada provide a relevant and useful reference point for considering the safety of EMF levels from the existing transmission lines and the proposed VITR. The Commission Panel notes that the current guidelines are based on broad reviews of the scientific studies and that the absence of a guideline for long-term exposure is based on reviews that have concluded that the scientific research does not support the need for such a guideline.

The Commission went on to discuss the methodology for calculating electrical exposure levels and accepted those produced by the Transmission Corporation. The Commission recognized that the levels in premises along the right of way may be higher than average, but did not accept the Tsawwassen residents’ “characterization of them as uniquely high.” The reasons continued as follows:

The Commission Panel acknowledges that the EMF-related health concerns described by Intervenors living near the existing transmission line may be causing stress and anxiety in some residents, but concludes that the science does not support their fears. The Commission Panel finds Dr. Havas’s evidence to be selective and her opinions unconvincing. Dr. Havas conducted one comprehensive study of the pre-2000 research but did not review the more recent scientific research and therefore could not support her position that recent scientific research indicated a need for lower exposure guidelines. In the absence of convincing new evidence that indicates that change is warranted and/or imminent, the Commission Panel concludes that it should not impose lower EMF exposure standards on VITR.

[Emphasis in original.]

[28] After detailing the “socioeconomic impacts” of the proposed line in its reasons, the Commission said:

The Commission Panel finds that terms such as “the precautionary principle” and “prudent avoidance” are open to a range of interpretations, and is therefore not adopting either term in its determinations. Consistent with previous Commission decisions, the Commission Panel supports efforts to reduce EMF levels where mitigation costs are not significant or where the benefits clearly exceed the cost of mitigation measures. In this proceeding, the evidence does not show that the additional reductions attainable through shielding, deeper burial or taller poles would have positive health impacts and therefore the Commission Panel concludes that the costs of additional mitigation measures to further reduce EMF exposure along the existing ROW are not justified. Mitigation measures may reduce the level of concern and worry experienced by nearby residents. However, while this benefit is not insignificant, the Commission Panel concludes that it does not warrant actions beyond the very low cost measures that BCTC has included in its VITR design.

[Emphasis in original.]

At page 87 of its reasons, in a summary of its conclusions, the Commission said:

… for the reasons stated in Section 5.2, the Commission Panel concludes that it should give little or no weight to concerns arising from EMF.

[29] Counsel for the Transmission Corporation submitted that the gist of the residents’ appeal was with regard to that conclusion. He said the residents were attacking the manner in which the Commission weighed scientific evidence and the conclusions it drew from that evidence. He submitted, “This case is about the rejection of Dr. Havas’ evidence which is not the issue before this Court.”

[30] The Transmission Corporation pointed to the findings of fact of the Commission that there is little, if any, risk and submitted that the precautionary principle was therefore not engaged. Furthermore, it submitted there was no basis in fact, or in theory, to support the notion that the onus had shifted to the respondents to produce definitive evidence that there was no risk before the Commission could come to its decision.

[31] Mr. Arvay submitted this Court should determine whether the Commission erred in finding it should give little or no weight to health concerns arising from electromagnetic fields, and in his reply he contended that this Court should find this to be a “patently unreasonable decision.” He submitted that pursuant to the definition of the precautionary principle as enunciated by Dr. Trouwborst the precautionary principle was engaged when there was evidence of a risk and this shifted the onus to the respondents to produce evidence negativing the risk. He said the Commission should have ordered the respondents to do further studies on the effects of long term exposure to electromagnetic fields. He asked this Court to return the case to the Commission with directions that the Transmission Corporation “be ordered to do retesting and give guidance to the Commission.”

[32] It was in Mr. Arvay’s reply that for the first time the residents advanced any suggestion that a finding of fact of the Commission was at the core of this appeal. The Court attempted to summarize this new position in the following manner:

The precautionary principle is a mandatory rule of construction and part of the common law of Canada. If it had been applied by the Commission, as required, it would have resulted in the Commission asking itself the right question. That question being:

“What are the long term risks of electromagnetic field radiation?”

If the Commission had asked that question it would have realized it did not have adequate information of the long term risk and would not have come to the decision that electromagnetic field radiation was to be given no weight. That decision was patently unreasonable.

[33] Counsel for the residents agreed with this reformulation of his position, in which the issue of the precautionary principle is joined to the new issue being the Commission’s “patently unreasonable” decision.

[34] With respect to the precautionary principle issue, the residents contend this Court should make a declaration that the precautionary principle is a mandatory rule of construction, but it should not be, as quoted earlier, “in the context of this case as that is not the ground on which leave to appeal was granted.” It is not open to this Court within the terms of the issue as framed to make a declaration such as envisaged by the residents. This is an appeal from a finding of the Commission on which the residents submit the Commission erred. It is an appeal, not an application for a declaration.

[35] The residents recognized that this Court’s decision in Western Canada Wilderness Committee v. British Columbia (Ministry of Forests, South Island Forest District), 2003 BCCA 403, might be read in a manner that provides a bar to the declaration that it was seeking. They asked this Court to “reconsider” that case, which I take to mean “overturn” it. That, of course, is not open to this division of the Court. In any event my decision in the case at bar turns on technical matters not dealt with in that case.

[36] The second branch of the issue as restated by the residents, that the Commission came to a patently unreasonable decision because it erred in not applying the precautionary principle, is not, as noted by the respondents, before this Court. It cannot be before this Court for the reasons given by Madam Justice Levine. It is based on the theory that a risk had been demonstrated, a matter of fact on which the Commission adopted its earlier findings “that the scientific evidence regarding EMF effects is inconclusive and does not support the theory that power line EMF is a health hazard.” Consequently, the precautionary principle was not engaged and there can be no challenge in this Court to the Commission’s conclusion that “it should give little or no weight to concerns arising from EMF.”

[37] Madam Justice Levine, in her reasons which rejected this issue as it was framed before her and is now framed before us, said, in part, as follows:

[6] The applications for leave were brought under s. 101(1) of the Utilities Commission Act, R.S.B.C. 1996, c. 473, which provides that: “An appeal lies from a decision or order of the commission to the Court of Appeal with leave of a justice of that court”. While not expressly stated in s. 101, it is accepted that an appeal from the Commission is restricted to questions of law: see Joint Industry Electricity Steering Committee v. British Columbia (Utilities Commission), 2005 BCCA 330 (“JIESC”) at paras. 5 and 75.

…

[8] With one exception [the right of way agreements issue], all of the grounds of appeal raise either issues of fact or mixed fact and law. The question on which I granted leave … is a question of law.

[9] … All challenge the manner in which the Commission approached its decision-making in the circumstances of this particular case, including its review of the evidence and the factors it considered, the weight it gave to the relevant factors, and the analysis it undertook in reaching its decision. The Commission is entitled to considerable deference in these matters. The remaining grounds of appeal raise no substantial questions of law to be argued, and there is no prospect of an appeal on any of those grounds succeeding on its merits. For those reasons, I dismissed the applications for leave to appeal on all of the grounds of appeal other than the question of the interpretation of the right of way agreements.

Those passages are applicable to the issue before this Court.

[38] I also agree with the characterization of the residents’ position on this appeal as advanced by Hydro in its factum:

The two questions before this Court are all that survive of 21 questions originally posed in four leave to appeal applications and still more raised in three reconsideration applications. These surviving questions and those that have been discarded at core are all attempts to revisit the Commission’s consideration of the extensive evidence and balancing of the many interests that were before it and have this Court substitute its judgment of how these factors or interests should be prioritized.

[39] I would dismiss the appeal.

“The Honourable Mr. Justice Thackray”

I AGREE:

“The Honourable Mr. Justice Lowry”

I AGREE:

“The Honourable Mr. Justice Chiasson”

Citation:	*Tsawwassen Residents Against Higher Voltage Overhead Lines Society v. British Columbia (Utilities Commission),*
	2007 BCCA 211