Vancouver Registry

                                                   No. A901042

           IN THE SUPREME COURT OF BRITISH COLUMBIA

                         (In Chambers)           VANCOUVER, B.C.

                                                 June 29, 1990

RE: THE JUDICIAL REVIEW PROCEDURE ACT, THE PESTICIDE CONTROL

    ACT AND THE DECISION OF THE ENVIRONMENTAL APPEAL BOARD

BETWEEN:                      )

                             )

LONI PARKER, TONI JOHNSTON    )

and MARILYN TAYLOR            )     REASONS FOR JUDGMENT

                             )

              PETITIONERS    )     OF THE HONOURABLE

                             )

AND:                          )     MR. JUSTICE HOLMES

                             )

ENVIRONMENTAL APPEAL BOARD, )

MINISTRY OF FORESTS OF       )

BRITISH COLUMBIA, WESTAR    )

TIMBER LTD. and BELL         )

POLE CO. LTD.                )

P. HAVERL, Esq.                   Appearing for the Respondent,

articled student                    Ministry of Forests of B.C.

P.D. FELDBERG, Esq.,              Appearing for the Respondent,

                                            Westar Timber Ltd.

THE COURT: (Oral) I heard the submissions from counsel on this matter on June 28, 1990 and reserved judgment to today. I give these reasons orally as I am of the view that the parties require an immediate decision to avoid possible further prejudice by reason of loss of opportunity to exercise rights granted under the original permits in issue for the year 1990.

     The issues arising from the Petition are stated by the Petitioner to be:

1.Was the Environmental Appeal Board correct in refusing to compel the production of certain documents in the possession of the Respondent Ministry of Forests and the Respondent Westar?

2.Was the Environmental Appeal Board correct in refusing to grant an adjournment of the appeal hearings of the Petitioners?

3.Was the Environmental Appeal Board correct in deciding that it would not continue the oral hearings of the appeals after January 25, 1990 and would only accept further submissions in written form?

4.If the Environmental Appeal Board was not correct in refusing to compel the production of documents, in refusing to grant adjournments and in denying the opportunity for additional oral submissions, do these errors justify setting aside the decision of the Environmental Appeal Board?

     In the end result the question for determination is whether the refusal of the Environmental Appeal Board to grant an adjournment to the Petitioners to permit them to obtain certain documents from the Respondents and allow their retained expert, Mr. Hammond, time to review the material, prepare a report, and give evidence orally before the Board amounts to error on the part of the Board resulting in a denial of natural justice to the Petitioners or any one of them.

     Issue number 1 as stated by the Petitioners requires determination of whether the Board has any power to order production of documents prior to the hearing. The Petitioners allege they tried for several months prior to the hearing to obtain documents from the Respondents, but were unsuccessful. The hearings were set for January 23, 24 and 25 of 1990, and if the documents had been obtained reasonably in advance of the hearing dates their expert evidence could have been prepared and presumably no adjournment application would have been required.

     The Board was aware prior to the hearing dates of the Petitioners' quest for documents but felt it had no power to order their production.

     I find the Board was correct in their interpretation of their powers in that regard. In essence the Petitioners were seeking a form of "document discovery" prehearing. The Board's power in regard to document production is found in section 15 (1) of the Inquiry Act, which reads:

"The commissioners acting under a commission issued under this part, by summons, may require the attendance as a witness, at a place and time mentioned in the summons, which time shall be a reasonable time from the date of summons, of any person, and by summons require any person to bring and produce before them all documents, writings, books, deeds and papers in his possession, custody or power touching or in any way relating to or concerning the subject matter of the inquiry."

I do not interpret that section to allow the Board any power to have documents produced to a party to the appeal. It does permit a summons to issue requiring a person to produce the documents at the hearing. The Board being a creature of statute has no inherent jurisdiction to depart from the confines of section 15 (1). The authorities cited to me of Re Burton and the Saddlery Co. (1861) 31 L.J.Q.B. 62, and Canadian Fishing Co. v. Smith (1962) 35 D.L.R. (2nd) 355 do not support the Petitioners' contention.

     The Petitioner has failed to show any error in respect of the Board's actions in regard to issue 1.

     When the Petitioners' appeals came on for hearing on January 23, 24 and 25th, 1990 they had been successful in obtaining the documents of the respondent, Bell Pole Co. Ltd., but had received them only six days in advance of the hearing. They had not received the documents of the Minister of Forestry or Westar.

     In part, however, through the intervention of the Ombudsman the Petitioners had reached an agreement that they could obtain the documents of the Minister of Forestry and Westar on payment of reasonable fees.

     The Petitioners therefore applied to the Board for an adjournment to permit receipt of the documents and for their expert, Mr. Hammond, to review the documents, prepare a report, and testify before the Board.

     It is clear in the circumstances that time was required for the Petitioners to obtain the report of Mr. Hammond and that their case would be incomplete without it. It is equally clear the Board was cognizant of the Petitioners' problem and had sympathy with their position.

     The Board was advised that Mr. Hammond could not devote time to a review of the material and commence preparation of a report until April, 1990. He anticipated a month to prepare his material.

     The Board was also advised that the season during which the application of insecticides by the Respondents under the permits under appeal could be applied was limited to late August and early September, with lead time for necessary preparation and planning, required a decision of the Board be made by May or June, 1990, or the 1990 season would be lost.

     The Board was therefore faced with two important competing interests of the parties. To grant the Petitioners adjournment request would likely place the timing of the hearings and consequent period of consideration and decision making past the period where the respondents could exercise their permit rights in the year 1990 even if they were successful in having the appeal dismissed. Conversely, not to permit the Petitioners to obtain the evidence of their expert would seriously prejudice their right to have a full and fair hearing.

     The Board refused the request to adjourn the hearings in their entirety to a time after April, 1990. They ruled they would hear all other evidence of the parties on the scheduled hearing dates, but would permit the petitioners the right to file a written report and submissions in respect of Mr. Hammond's evidence by May 1, 1990.

     In fact therefore the Petitioners did receive an adjournment to permit Mr. Hammond the opportunity to prepare and file a report and make submissions thereon. The other Respondents were, of course, given a right of written reply.

     The petitioners did file a report of Mr. Hammond in respect of the appeals involving the Minister of Forestry and Bell Pole Co. Ltd. No report was filed in respect of Westar. On the evidence before me I find that although the Petitioners did not obtain the Westar documents until approximately mid-April, 1990, Westar had been openly cooperative in its willingness to supply the Petitioners with whatever they wished since the date of the hearings in January. Any delay in obtaining the documents in that time period was solely caused by the Petitioners not taking advantage of the opportunities open to them.

     In my view the Board has the power to control its own internal procedures, and the matter of an adjournment is one such procedure. It must of course act fairly, and consider, and balance competing interests. Board of Education of the Indian Head School Division No. 19 of Sask. v. Knight (1990), 106 N.R. 17 Supreme Court of Canada at page 49.

"It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court ... As pointed out by de Smith ... the aim is not to create 'procedural perfection' but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome."

There is no evidence to suggest it did not act in a completely proper manner. It acted upon the precise request before it, considered the prejudices consequent upon the options open to it, and made a decision which permitted the Petitioners a reasonable opportunity to present fully its evidence and submissions and extended the time for Mr. Hammond's report and submissions in regard thereto to the latest possible time that would permit the Board to consider all the evidence, deliberate, and render a decision that would salvage the 1990 insecticide spray programme of the Respondents should they be successful.

     In the final analysis the only real difference in respect of any complaint made by the Petitioners was that Mr. Hammond's evidence was to be in writing rather than oral.

     I am unable to find any error in the Board's approach or decision in regard to the question of the adjournment. In the event there was any error its effect was the difference between the Board reading Mr. Hammond's views and opinions instead of his being present before them to state orally the same information. I find no prejudice occurred as a result of their decision.

     There is no assertion by the Petitioners that Mr. Hammond was not able to present or express his total views or opinions because he was restricted to writing. There is no evidence that the Petitioners ever expressed to the Board any prejudice other than what they perceived to be the lesser impact of Mr. Hammond's evidence in written rather than oral form.

     I had concern that in similar circumstances the late receipt of relevant documents might prejudice the ability of a party to present other evidence or to cross-examine opposing witnesses effectively. Counsel for the Respondents correctly point out there is no evidence of concern of that nature evident from the Petitioners' submissions to the Board, nor does the Petition before me raise or substantiate that that occurred.

     Counsel for the Petitioners does argue, however, that the Board was required by its governing statute to conduct a hearing where only oral evidence could be received. The basis of his argument is the combined effect of Section 4 (2) and Section 7 of the Environmental Appeal Board Procedure Regulations.

     And I quote Section 4 (2),

"The chairman shall within 60 days of receipt of the Notice of Appeal or of the Amended Notice of Appeal, as the case may be, determine whether the appeal is to be decided by members of the board sitting as a board or by members of the board sitting as a panel of the board, and the chairman shall determine whether the board or the panel, as the case may be, will decide the appeal on the basis of a full hearing or for written submissions."

And Section 7 reads,

"Where the chairman has decided that a full hearing should be held, the chairman in an appeal before the board, or the panel chairman in an appeal before a panel, may require the parties to submit written briefs in addition to giving oral evidence."

     Counsel for the Petitioners contends "full hearing" in Section 4 (2) must mean "oral only" which is contrasted with the following words "or written submission." The section requires the Board to choose one or the other method within 60 days of acceptance of the appeal. In this case the Board chose the "full hearing" option and then changed it to order or permit written evidence in regard to Mr. Hammond. It is contended this constitutes a mixed hearing which contravenes the regulations and thereby exceeded the Board's jurisdiction. Petitioners' counsel further argues that Section 7 only allows for "written briefs in addition to oral evidence," and not in substitution of oral evidence.

     I was referred to no authority that would interpret "full hearing" in the manner sought here. I doubt that any exists, certainly in respect to any contemporary form of hearing by tribunal or court. It is presently entirely common for much important evidence by experts to be received in the form of a written report. I doubt it could be seriously contended that mixing oral evidence with the written evidence of experts does in the abstract not result in a "full hearing". A much more rational interpretation, which I adopt, is that "full hearing" means that the Board hears all the proper evidence the parties wish to tender at a public hearing, receives all proper written evidence, and permits relevant submissions before reaching its decision which may then be given. The method followed by the Board in this instance is well within that interpretation.

     The Petitioners sought to advance Islands Protection Society v. Environment Appeal Board (1986) 8 B.C.L.R. (2nd) page 30 as an authority in favour of a public hearing being required to receive the oral evidence of the parties. I do not consider it addresses the issue in the present Petition. This is not a case of no public access hearing being held, it is a case where it was mostly heard in public with only Mr. Hammond's evidence received in writing, and that written evidence is a matter of public record to any interested person.

     I therefore conclude that the Board did not commit any error as alleged, was in fact correct in its actions in regard to the questions raised by the four issues propounded by the Petitioner, and that no breach of natural justice in respect of the Petitioners, or any of them, has occurred.

     In the event any error was made by the Board resulting in Mr. Hammond's evidence being taken in a written form rather than in an oral form, I do not see that has prejudiced a fair hearing of the Petitioners' appeals and I would not exercise a discretion requiring a rehearing in respect of any appeal. The petition is dismissed with costs.