Date: 19980428 Docket: CA023459 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: The Honourable Mr. Justice Donald April 28, 1998 The Honourable Mr. Justice Hall The Honourable Madam Justice Proudfoot Prince George, B.C. BETWEEN: DEPUTY DIRECTOR OF THE WILDLIFE BRANCH OF THE MINISTRY OF THE ENVIRONMENT, LANDS AND PARKS OF THE PROVINCE OF BRITISH COLUMBIA PETITIONER (RESPONDENT) AND: ENVIRONMENTAL APPEAL BOARD and LYNN ROSS RESPONDENTS (APPELLANTS) M.D. Durando appearing for the Appellant, Lynn Ross T.M. Rankin appearing for the Respondent, Board H. Groberman appearing for the Respondent, Deputy Director [1] HALL, J.A.: The appellant, Lynn Ross, held a guide outfitters certificate and licence in 1993 under the provisions of the Wildlife Act, S.B.C. 1982 c. 57. As noted in the decision of the Environmental Appeal Board dated February 14, 1997, Mr. Ross has had many years experience in this field. The territory where his certificate and licence were operative was in the Pink Mountain area in northern B.C. [2] Apparently there had been ongoing controversy between the Director of the Wildlife Branch and the appellant for some years prior to 1993. Because of a possible perception of bias, the Deputy Director rather than the Director of the Branch proposed to hold a hearing on June 24, 1993 pursuant to the provisions of s. 62 of the Act to determine if Mr. Ross "should continue to enjoy the privileges afforded him by the licence or certificate." At the time of the proposed hearing, there were outstanding charges against Mr. Ross under the Wildlife Act. [3] Counsel for Mr. Ross unsuccessfully applied to adjourn the hearing before the Deputy Director. Following that unsuccessful application, counsel and Mr. Ross elected to take no further part in any hearing. The hearing proceeded. [4] The appellant brought judicial review proceedings against the decision of the Deputy Director. That application was dismissed by Justice Lowry in October 1993. That review application related to the decision of the Deputy Director to proceed with the hearing and refusing to grant an adjournment. [5] After conducting a hearing on June 24, 1993, the Deputy Director issued written reasons on September 1, 1993, finding several allegation of misconduct proven against the appellant and he ordered cancellation of Mr. Ross' guide outfitters certificate as of September 15, 1993. As I read his reasons, he allowed the period of an additional two weeks from September 1 for the orderly winding down of the operation. The Deputy Director observed that he did not consider it proper for there to be any consideration of the transfer of the certificate in that two week period. [6] An appeal was launched on behalf of Mr. Ross to the Environmental Appeal Board on 29 September 1993, but the appeal was not proceeded with until 1996. It appears the delay was motivated by the wish to have available a decision expected from the Supreme Court of Canada on an issue which might arise on the appeal. [7] After the hearing on October 23 and 24, 1996, where some new evidence was tendered from the appellant, the Environmental Appeal Board issued a decision ordering the Deputy Director to renew the certificate for a period of ninety days in order two allow the appellant to file a formal application to transfer the certificate. The Board expressly found that the Deputy Director had reached the correct decision concerning the appellant's fitness to continue to hold the certificate and licence under the Act. [8] The Director filed a petition on April 8, 1997 to review this decision of the Board. The matter was heard by Mr. Justice Taylor on June 13, 1997. He held that the Board had erred in making an order beyond their jurisdiction and he quashed the order of the Board with the result that the decision of the Deputy Director was reinstated. [9] The appellant Ross appeals to this Court from the decision of Mr. Justice Taylor. [10] The respondent Board has appeared through counsel on this appeal and has filed a factum relating to a single issue, namely the question of what degree of deference ought to be given to decisions of the Board operating within its area of expertise. It must be observed that the powers of the Environmental Appeal Board were, at the time of these proceedings, rather more circumscribed than they are presently as a result of recent amendments made relating to the jurisdiction of the Board by the Environment, Lands and Parks Statutes Amendment Act, S.B.C. 1997, c. 18. [11] In my opinion, Mr. Justice Taylor came to the correct conclusion when he held that the Board had made an order that exceeded its jurisdiction under the then-applicable legislation. Mr. Justice Taylor said: Counsel for the Director argues that what the Deputy Director said does not form part of his order, and that the true effect of that decision was to suspend and cancel and to make it effective fourteen days hence. So arguing, it is submitted the Deputy Director simply expressed a view that, in the event of a transfer application, he would not consider proper any consideration of a transfer during that fourteen day period. Thus, it is argued, the Deputy Director simply emphasized the purpose of the fourteen day hiatus, that is, to permit an orderly shutdown. The position of the Director then is that these words do not form part of the order respecting transfer, a subject matter that was not then before the Director. Counsel for Mr. Ross argues that what the Board did was to interpret the words of the Director to determine the effect of the order made. The result of that interpretation, it is argued, is that the Board concluded the Director had given a right of transfer and all the Board did was to expand the time period for the transfer to ninety days. Mr. Darando says that there were two interpretations of what that passage that I quoted from the Director meant, and the Environmental Appeal Board determined what it was the Director wanted, that is to say dealing with a right of transfer. The effect of the decision, if what in fact the Director said was in reference to a transfer was in order, was a substitute of the Director's order whereby it fixed a period of time ni which the transfer could be applied for from fourteen to ninety days by ordering the reinstatement for a period of ninety days that it did. The powers of the Environmental Appeal Board, as I have noted, are very limited under the appeal provision of Section 101(5) and 101(10). As noted by Madam Justice Huddart, as she then was, in Olson v. Walker, Duncan Registry 2286 August 21, 1989, the powers of the Appeal Board do not include the power to substitute its opinion for that of the Deputy Director or, in this case, where he functions as a regional manager. It simply has no power under its enabling legislation, being Section 101(10), from which it derives such authority to substitute a different opinion for that rendered by the Deputy Director. No issue arises on this appeal as to whether the Director properly exercised his powers on the basis that the cancellation or suspension was conceded. In my opinion, it is necessary only to deal with the first issue. The words of the Director permit, in my view, only one interpretation, that is the suspension and cancellation was to be suspended effective the 15th of September of 1993. He then said that he did not consider proper any consideration of transfer of the territory prior to suspension and cancellation taking effect. Given what he had just said about the reasons for the two week period, which was to permit Mr. Ross an opportunity to shut down his operations in an orderly manner, all the Director was doing in my opinion was to impart that, should a transfer application be made, it would not be proper to give the application consideration given that he otherwise would have made his order effective forthwith. One must be mindful that the order under Section 61(a) to suspend or cancel is in fact punitive. Mr. Ross conceded conduct that gave rise to that type of order. To permit a transfer within the two week period would undermine the sanction imposed. In my view, the Environmental Review Board erred in concluding that the fourteen day period discussed by the Deputy Director in terms of transferring was an order of the Director. It was not and, as such, it is not a matter that was properly before the Board for its consideration. If anything, it was a direction in the event of a transfer application that might be made during that period of time. It follows that the order of the Environmental Appeal Board was not within the jurisdiction of the Board to make. The order of the Environmental Appeal Board of the 14th of February of 1997 is quashed, and the order of the Deputy Director made the 1st of September of 1993 is confirmed. [12] What may not be clear from the judgment is that, as a matter of published policy by the Ministry, the right to transfer is forfeited upon cancellation of the certificate. Policy 4.4.01.04 of the Ministry of Environment, Lands and Parks Policy says: The Regional Manager of Director shall not authorize the transfer of the right to guide under the guide outfitter licence or certificate until a decision is made by the Regional Manager. If the decision ... is to cancel then the right to guide ... is forfeited to the Crown. This policy is not contested. The Deputy Director's remarks concerning an application to transfer during the winding down period were simply a reminder of the forfeiture which took effect as a result of the cancellation of the certificate. [13] In my view, the Board misconstrued what was the order being appealed from. It was an order of cancellation of the certificate. Having found that order to be a proper one, there was nothing further for the Board to determine. Its order reinstating the certificate went beyond its jurisdiction and was properly quashed. [14] Concerning the issue that the Board has argued in this Court concerning the standard of review, I do not believe that Mr. Justice Taylor erred in applying the standard of correctness as the issue before him was jurisdictional. However, if his judgment could be interpreted as holding that all decision of the Board would have to meet that administrative law standard, I could not agree with such a holding. I doubt, however, that his comments can or should be interpreted in that fashion. The Board exercises a review function under a number of statutes related to environmental matters and, in the ordinary course, would be entitled to the usual deference accorded to administrative boards acting within their area of expertise. [15] The applicable standards are helpfully set out in cases such as Pezim v. B.C. Superintendent of Brokers [1994] 2 S.C.R. 557 and Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748. I believe that Madam Justice Quijano put the matter succinctly when she said in the case of De Goutiere v. B.C. (Environmental Appeal Board) (1995) B.C.J. 2513: No issue was taken with respect to the expertise of the Tribunal and its members. It was conceded that the Tribunal did have special expertise with respect to environmental issues that might be brought before it, including the design, construction and location of septic systems. Therefore, decisions requiring the Board's special expertise should not be interfered with unless patently unreasonable. [16] However, in this case the issue was in my view clearly a jurisdictional one, and I believe Mr. Justice Taylor was correct in applying a standard of correctness as the applicable standard. [17] For the reasons I have expressed, I would dismiss this appeal. [18] Costs were requested at Scale 1, and I would so order. [19] DONALD, J.A.: I agree. [20] PROUDFOOT, J.A.: I agree. [21] DONALD, J.A.: The appeal is dismissed. Costs at Scale 1 only against the Appellant, Lynn Ross. "The Honourable Mr. Justice Hall"