Date of Release: July 9, 1996 No. S4915 Duncan Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) HER MAJESTY THE QUEEN IN RIGHT OF ) REASONS FOR JUDGMENT THE PROVINCE OF BRITISH COLUMBIA ) as represented by ) THE MINISTER OF HEALTH ) ) PETITIONER) OF THE HONOURABLE ) ) AND: ) ) ENVIRONMENTAL APPEAL BOARD )MR. JUSTICE ROMILLY and ) MOUNTAIN PACIFIC INVESTMENTS LTD. ) ) RESPONDENTS) Counsel for the petitioner: Jeff Loenen Counsel for the respondent Environmental Appeal Board: T. Murray Rankin Counsel for the respondent Mountain Pacific Investments Ltd.: Brian R. McDaniel Dates and place of application: July 4 and 5, 1996 Duncan, B.C. NATURE OF APPLICATION 1 This is an application made under the Judicial Review Procedure Act, R.S.B.C. 1979, c.209, Rule 44 of the Rules of Court and the inherent jurisdiction of this court. Under this application the Petitioner requests that this court order that the decision of the Environmental Appeal Board ("the Board") dated November 6, 1995 be set aside and that a permit to construct/install a sewage disposal system issued pursuant to this order be quashed with costs to the petitioner. FACTUAL BACKGROUND 2 In 1992, Mountain Pacific Investments Ltd. (hereinafter referred to as "Mountain Pacific") acquired real property bordering on Shawnigan Lake, B.C (hereinafter referred to as "the Property"). There is at present a small cottage on the property which utilizes a pit privy as a sewerage disposal system. Mountain Pacific wished, however, to expand the existing cottage into a three bedroom retirement home complete with the modern conveniences of flush toilets, washing machines, showers, baths and other appliances. 3 The physical dimensions of the property, its lakeside location and the presence of a seasonal watercourse, however, made it impossible for Mountain Pacific to instal a conventional septic tank system or a conventional package treatment plant system in accordance with the Health Act, R.S.B.C. 1979, c.161 (hereinafter referred to as "the Act") and the Sewage Disposal Regulation, B.C. Regulation 411/85, as amended (hereinafter referred to as "the Regulation"). A conventional system requires an absorption field for secondary treatment of the sewage. This field must meet the requirements of the Act and Regulation. As a result, Mountain Pacific submitted an Application for Permit to construct a Sewage Disposal System dated January 25, 1995 (hereinafter referred to as "the Application") for evaluation by the Ministry of Health. The Application was for the construction and installation of an experimental sewage disposal system called a Hydroxyl System. 4 Unlike conventional sewage disposal systems, the Hydroxyl System does not rely on soil-based secondary treatment of sewage effluent. Rather the manufacturer of the Hydroxyl System claims that both the primary and secondary treatment of the sewage effluent takes place within the Hydroxyl System, in part, through the introduction of ozone and hydroxyl radicals. For this reason the Hydroxyl System utilizes an infiltration chamber to distribute the effluent over a relatively small area instead of a large absorption field as required for conventional sewage disposal systems. 5 In a decision letter dated February 22, 1995, Mr. Glen Smith, Environmental Health Officer, rejected the Application on the basis that: (1) the Application proposed to circumvent the requirements of schedule 2, s.18(e) of the Regulation (100 foot set-back requirement from non-tidal bodies of water; and, (2) the Application did not fall within the scope of the Ministry of Health's "Policy - Innovative Designs and Technologies New to B.C.". (Hereinafter referred to as "the Policy".) 6 In a letter dated March 1, 1995, from Mr. Bob Smith, Manager of the Environmental Health Programs, Ministry of Health, to Mr. Juergen Puetter, a representative of Hydroxyl Systems Inc., the Hydroxyl System technology was approved for experimentation in British Columbia under controlled terms and conditions set out in the letter for a limited one year test period. This letter also stated in part: "Approval authority for the application, installation, use and monitoring of the Hydroxyl System is still vested with the Medical Health Officer and local approval for each specific site is required before commencing installation". 7 Pursuant to s.5(3) of the Act and by way of a Notice of Appeal dated March 3, 1995, Mountain Pacific appealed the decision of Mr. Glen Smith to the Environmental Appeal Board. On August 11, 1995, the Board, chaired by Mr. Perry, conducted a hearing of the appeal. That evening Mr. Perry and the parties took a view of the Property. They also heard extensive evidence and looked at various drawings dealing with the Hydroxyl System from David Featherstonhaugh, an experienced engineer. Subsequent to the hearing, the Board received further written submissions from the parties to the appeal. 8 On November 6, 1995, the Board issued a written decision ordering that the decision of Mr. Glen Smith of February 22, 1995, be reversed. The Board further ordered that a permit be issued to Mountain Pacific for the installation of a Hydroxyl System on the Property. The Board ordered that as a condition of this permit, Mountain Pacific will register a very restrictive covenant against the Property containing, inter alia, the following two terms: (c)the Ministry of Health has made no representation to the owner regarding the fitness of the Hydroxyl System to meet the requirements of the Regulations or to perform satisfactorily as a sewage disposal system; (d)that once the Hydroxyl System has been installed on the land and inspected by the Ministry of Health if the Hydroxyl System does not perform to the satisfaction of the Environmental Health Officer in his sole discretion or no final approval is given by the Ministry of Health to the Hydroxyl System in his sole discretion then the owner will replace the system with a conventional sewage treatment system, a conventional package treatment plant system, hook - up to a sewer, install a holding tank or cease to discharge sewage to land or water; 9 While the decision of the Board was not as elegantly written as a judgment of the British Columbia Court of Appeal or the Supreme Court of Canada, one must never forget that the Board comprises of some members who are not lawyers. Apart from that, it should be recognized that the apparent failure of the Board to refer specifically to an issue in its judgment does not in itself lead to the conclusion that they overlooked or misapprehended the task before them. 10 At any rate, the Restrictive Covenant contemplated by the order was registered against the property in the Victoria Land Title Office on January 5, 1996. The permit to construct contemplated by the order of the Board was issued January 4, 1996. This permit was valid for six months pursuant to the decision of the Board. 11 As a result of the issuance of the Permit, Mr. and Mrs. Phillips (who in October 1995 acquired the property from their company, Mountain Pacific) obtained a Building Permit to construct a three bedroom home on the Property. The construction of the home on the property is now complete and the Hydroxyl System is being installed. The petitioner is involved in the ongoing assessment of the Property and of the installation the Hydroxyl sewerage disposal system. 12 I mean no disrespect when I say that because of these proceedings the Phillips find themselves to be hapless pawns in what seems to no more than a fight between powerful bureaucrats and a very specialized administrative Board. ISSUES 13 The petitioner seeks a review of the decision of the Board by this court on the following grounds: 1.The Board lost or exceeded its jurisdiction to issue a permit by expressly declining to address the question it was required to determine under the Act and regulation and by asking itself a wrong question instead. 2.Alternatively, the Board made a patently unreasonable finding in concluding that the ultimate use of the proposed sewage disposal system would not contravene the Act and Regulation. 14 Before dealing with these issues it may be prudent to set out the legislative scheme. LEGISLATIVE SCHEME 15 Under section 2 of the Act, a provincial health officer and other officers, such as medical health officers and public health inspectors (hereinafter referred to as "Health Inspectors"), may be appointed under the Public Service Act, for the supervision and enforcement of the Act. Glen Smith was such an employee of the Ministry of Health. 16 Section 5 of the Act gives the Lieutenant Governor in Council power to make regulations on all matters associated with health protection and, in particular with respect to sewage disposal. The relevant portion of the Act states: 5.The Lieutenant Governor in Council may make regulations for prevention, treatment, mitigation, and suppression of disease and regulations in respect of the following matters ... (mm)the inspection, regulation and control for the purposes of health protection provided in this Act, of ... (A) septic tanks; ... (B) sewage disposal systems; ... (3)If a person is aggrieved by (a)the issue or the refusal of a permit for a sewage disposal system,under a regulation made under subsection (1) (mm), the person may appeal that ruling to the Environmental Appeal Board established under section 11 of the Environment Management Act within 30 days of the ruling. (4)On hearing an appeal under subsection (3), the Environmental Appeal Board may confirm, vary or rescind the ruling under appeal. 17 Section 25 of the Act imposes a general prohibition against creating a system or sewerage unless there is also created a system of system purification and disposal which removes any menace to public health; 25.No common sewer or systems of sewerage shall be established or continued unless there is maintained with it a system of sewage purification and disposal which removes any menace to public health ... 18 The Lieutenant Governor in Council has passed the Regulation for the prevention, mitigation and suppression of disease in relation to sewage disposal. The following sections of the Regulation are relevant to the case at bar: 3. (1)No person shall construct, install, alter or repair a sewage disposal system or cause it to be constructed, installed,altered or repaired unless he holds a permit. (a)In the case of construction or installation, until site investigation tests set out in or required by schedule 1 have been carried out to the satisfaction of the Medical health officer or public health inspector, and either of them is satisfied that, having regard to the provisions of that schedule, the construction, installation and ultimate use of the system will not contravene the Act or this regulation. (4)It is a condition of every permit that ... (e)The construction, installation, alteration or repair complies with the standards for the appropriate sewage disposal system set out in this regulation. (5)The grantor of a permit may impose conditions additional to those set out in subsection (4). 7. (1)Where a medical health officer or public health inspector is satisfied that it is impossible for a person to comply with (a)in the case of a conventional septic tank systems, sections, 1, 16 or 22 of Schedule 2, or (b)in the case of a conventional package treatment plant system, sections 11,12 or 18 of Schedule 3, but that person can comply with all other provisions of the appropriate schedule, he may issue a permit to construct under section 3, containing conditions that he considers appropriate to meet the omitted standards having regard to safeguarding public health. THE POSITION OF THE PETITIONER 19 In this hearing the petitioner makes the following submissions: (a)The Regulation provides a comprehensive scheme for the regulation of sewage disposal systems in British Columbia: section 1(2). In particular, section 3(1) states, in part, that no person shall install a sewage disposal system unless he holds a permit issued by a Health Inspector. Section 3(3)(a) states that a permit to install shall not be issued unless a Health Inspector is satisfied that the installation and ultimate use of the system will not contravene the Act or Regulation. (b)In the case at bar, Mountain Pacific intends to expand the existing cottage into a three bedroom retirement home complete with the modern conveniences of flush toilets, washing machines, showers, bath and perhaps other appliances. Since Mountain Pacific's plans for the Property clearly contemplate constructing a system of sewerage, section 25 of the Act requires that Mountain Pacific maintain a system of sewage purification and disposal which removes any menace to public health. This is an exacting standard that must be met by a person proposing to install a system of sewage disposal. (c)Similarly, the Regulation places a general duty on the owner or occupier of every building to ensure that domestic sewage emanating from a building does not reach the surface of land or discharge into a surface body of water: section 2. Unless otherwise stated, it is a condition of every authorization to operate issued under section 4 that no domestic sewage will reach the surface of land or discharge into a surface body of fresh water: section 4(3), Regulation. (d)In addition to these general requirements the Regulation prescribes standards that must be met by particular types of sewage disposal systems. For example, subject to section 7, section 6 requires that systems involving the use of a septic tank or a package treatment plant must conform with the standards prescribed in Schedules 2 and 3, respectively. (e)While the Schedules set out the minimum standards, in any particular application the Health Inspector has the discretion to attach further conditions to the issuance of a permit: s. 3(5); s. 4(2); Schedule 2, Appendix 1, note (1). Similarly, section 7(1) provides the Health Inspector limited powers of discretion where she is satisfied that it is impossible for the applicant to comply with certain provisions in the Schedules. (f)Since the Hydroxyl System which Mountain Pacific proposes to install on the Property does not rely on soil based secondary treatment of sewage effluent (ie: an absorption field), for the purposes of the Regulation, the Hydroxyl System is not a conventional septic tank system nor a conventional package treatment plant system. Therefore, the Hydroxyl System does not fall within the scope of either section 6 or 7 of the Regulation. In this sense, both Glen Smith and the Board erred in their consideration of the Application under section 7(1) of the Regulation. (g)Since the Hydroxyl System is a non-conventional, innovative, sewage disposal system, the more general provisions of the Act and the Regulation describe the jurisdiction of a Health Inspectors (or the Board) to issue a permit to install such a system. Prior to issuing a permit to install the Health Inspector must still be satisfied that the ultimate use of the system will not contravene the Act and Regulation: section 3(3)(a). Therefore the Health Inspector must be satisfied that the ultimate use of the system will remove any menace to public health (s. 25, Act) and that the use of the system will not impair the quality of the surface and ground water: Schedule 1, s. 3(2). (h)The Petitioner submits that in exercising her discretion under section 3 the Health Inspector is required to analyze and evaluate the proposed non- conventional system in the context of the characteristics of the proposed site and size of the system of sewerage to be serviced in order to determine whether these requirements of the Act and Regulation can be met. (i)The petitioner submits that in a judicial review of a decision of an administrative decision-maker the issue before the court is whether the tribunal had jurisdiction to act and whether it lost that jurisdiction at any stage of the decision-making process by virtue of an error of law with respect to its jurisdiction or by virtue of a patently unreasonable error. In support of this submission counsel for the petitioner drew my attention to U.E.S., Local 298 v. Bibeault (1988), 35 Admin. L.R. 153 (S.C.C.) at 192. "It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error: 1.If the question of law at issue is within the tribunals jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review; 2.If however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review." (j)The petitioner submits that in the case at bar the Board reversed the decision of the Health Inspector and exercised its discretion afresh under the Act and Regulation. For the purpose of this proceeding, the Petitioner does not take issue with the jurisdiction, generally, of the Board to order the issuance of a permit. However, the jurisdiction of the Board to issue a permit in any particular case is described and limited by the provisions of the Act and Regulation. (k)Decisions of the Board made within its jurisdiction may fall within the privative scope of section 120 of the Act. There is no statutory right of appeal from decisions of the Board. The Board can be taken to have a certain degree of expertise in the matters which it is required to determine under the Act. (l)Therefore, in summary, if the Board erred with respect to a provision in the Act or Regulation that describes or limits the Board's jurisdiction, a mere error will cause it to lose jurisdiction. With respect to issues within its jurisdiction, the Board will likely only exceed its jurisdiction if it renders a decision that is patently unreasonable or clearly wrong. SUBMISSIONS OF THE PETITIONER WITH RESPECT TO THE FIRST GROUND OF REVIEW 20 The petitioner submits that the Board lost or exceeded its jurisdiction to issue a permit by expressly declining to address the question it was required to determine under the Act and Regulation and by asking itself a wrong question instead. 21 On this issue the petitioner made the following submissions: (a) In order to have jurisdiction to issue a permit under the Regulation the Board had to be satisfied that the installation, operation and ultimate use of the Hydroxyl System in the circumstances set out in the Application would not contravene the Act and Regulation: s. 3(3)(a). The proposed system must remove any menace to public health: s. 25, Act. (b) These requirements of s. 3(3) are a condition precedent to the Board's jurisdiction under the Regulation to issue a permit to construct or install a sewage disposal system. (c) The Board incorrectly considered the Application to fall within the provisions of section 7(1) of the Regulation. This error ought to have been of limited effect since the requirements of s. 3(3) of the Regulation are more general and apply to the issuance of every permit under the Regulation. (d) In summary, the Board concluded that a permit could be issued if Mountain Pacific was willing to enter into a restrictive covenant which included, among others terms, a term whereby the owner agreed to replace the system or cease discharging sewage in the event that the experimental Hydroxyl System failed to perform as claimed by its inventors. (e) The Board does not refer to the requirements of section 3(3) and appears to only consider the Application in terms of s. 7(1) of the Regulation. This alone suggests that the Board failed to consider at all whether the ultimate use of the Hydroxyl System would contravene the Act and Regulation. (f) More conclusive however, is the fact that the terms of the restrictive covenant directed by the Board as a condition of the permit expressly state that the Board was refusing to exercise its discretion as required under the Regulation: 1.(c)the Ministry of Health has made no representation to the owner regarding the fitness of the Hydroxyl System to meet the requirements of the Regulations or to perform satisfactorily as a sewage disposal system; (g) Therefore the Board purported to issue a permit to Mountain Pacific while expressly acknowledging that it was making no representation as to the experimental Hydroxyl System's ability to meet the requirements of the Regulation or its ability to perform satisfactorily as a sewage disposal system. (h) The Petitioner submits that in expressly refusing to answer the question it was required to answer under the Regulation, the Board exceeded or lost its jurisdiction to issue a permit to construct or install a sewage disposal system to Mountain Pacific. (i) In addition to expressly refusing to answer the question required under s. 3(3), the Board incorrectly stated the question to be determined by it as follows: "The Ministry of Health when permitting Innovative Designs [ie: non-conventional sewage disposal systems] must ensure that should the designs fail or not operate to the level claimed by the manufacturer, human health will not be in danger by such failure." "In the event that such terms were made part of the restrictive covenant registered against the land, the legitimate concerns of the Ministry of Health as to the protection of public health in the event that the Hydroxyl System does not perform as claimed can be addressed." (j) The Petitioner submits that the Board asked itself the wrong question. The focus under s. 3(3) is on whether the use of the proposed system will remove any menace to public health. Rather than evaluating the merits of the Hydroxyl System and the proposed installation, the Board instead considered what safeguard was in place in the event that the Hydroxyl System failed to perform adequately. Again, this is evident from the conditions the Board attached to the permit: 1. (d)that once the Hydroxyl System has been installed on the land and inspected by the Ministry of Health if the Hydroxyl System does not perform to the satisfaction of the Environmental Health Officer in his sole discretion or no final approval is given by the Ministry of Health to the Hydroxyl System in his sole discretion then the owner will replace the system with a conventional sewage treatment system, a conventional package treatment plant system, hook-up to a sewer, install a holding tank or cease to discharge sewage to land or water; (k) The Act and Regulation establish a process of approval whereby a Health Inspector must be satisfied prior to installation that a particular sewage disposal system will remove any risk to public health: s. 25, Act. This process involves a consideration of a variety of factors including: (1) the nature of the proposed system; (2) the physical characteristics of the site itself; and, (3) the expected requirements of the facility to be serviced by the disposal system. With respect to conventional systems the Regulation prescribes specific standards that must be met: Schedules 2 and 3. With respect to non-conventional systems the Health Inspector must consider the various circumstances of the application and determine whether she can be satisfied that the ultimate use of the system will not contravene the Act and Regulation prior to issuing a permit to construct or install. Both s. 25 of the Act and s. 3(3) of the Regulation require an evaluation of the proposed sewage disposal system. (l)Contrary to these requirements of the Act and Regulation the Board did not evaluate the viability of the Hydroxyl System or the potential health implications of installing it on the shore of Shawnigan Lake. Rather the Board simply required an undertaking from Mountain Pacific that it would not use the experimental system in the event of failure: term (d). This approach of the Board disregards the entire approval process established under the Regulation. (m)The prior approval scheme set out in the Regulation allows the Ministry to evaluate a proposed system before it is installed. The requirements under section 3(3) as a condition precedent to issuing a permit allow more than 10,000 such permits to be issued each year without requiring the Ministry to actively monitor the performance of these systems on a quarterly basis. (n)The approach of the Board suggests that permits to construct and install sewage systems can be issued under the Regulation simply on the basis of a promise of the owner to discontinue use in the event the experimental system fails. Such an approach is a marked deviation from that which is defined by the provisions of the Act and Regulation. (o)In fact, the approach of the Board would render the permitting process set out in the Regulation entirely redundant since Health Inspectors already have the power to investigate and make orders with respect potential health hazards under the Act: ss. 66, 68. Similarly, all owners and occupiers of property on which a building is located are under a statutory obligation to ensure that domestic sewage does not reach the surface of land or discharge into a surface body of fresh water: section 2, Regulation. The approach of the Board has the effect of transforming the "prior approval" regime contemplated by the Regulation into a "monitoring based" system of regulation which would require Ministry officials to regulate thousands of disposal systems on a constant basis. (p)In summary, the Petitioner submits that the Board exceeded its jurisdiction to issue a permit to install a sewage disposal system pursuant to the Act and Regulation. First, the Board expressly declined to fulfill a condition precedent to its jurisdiction to issue a permit to construct and install the Hydroxyl System on the Petitioner's property. Second, the Board asked itself the wrong question. As a result the Board's decision and resulting permit should be set aside. APPLICABLE LEGAL PRINCIPLES IN SUPPORT OF THE PETITIONER'S CLAIM 22 The Petitioner submits that the Board exceeded its jurisdiction by purporting to issue of a permit pursuant to the Regulation in circumstances where it expressly failed to satisfy the requirements of the Regulation and Act and instead answered a wrong question. 23 This error of the Board can be characterized in two ways, both of which result in a loss of jurisdiction of the Board to issue a permit. (a) Jurisdictional Error 24 Section 3(3) of the Regulation describes and limits the jurisdiction or power of the Board to issue a permit and therefore the appropriate standard of review is that of correctness. Given the expertise of health officials and the privative effect of s. 120 of the Act, an official properly exercising her discretion under this section ought to be accorded an appropriate degree of curial deference. However, where as in this case, the official exercises her discretion in a manner which expressly disregards, and moves beyond, the jurisdictional parameters conferred by section 3(3) of the Regulation, the superintending function of the court requires it to intervene. 25 The Petitioner concedes that a court should not be quick to brand as jurisdictional that which may be doubtfully so: CUPE, infra, at 422. However, the power conferred by section 3(3) in this respect is neither ambiguous, nor doubtful. In fact it is manifest that there lies no authority to issue a permit under the Regulation unless the official is satisfied that the ultimate use of the proposed sewage disposal system will not contravene the Act and Regulation. The expertise of the health official lies in determining whether this requirement is satisfied, the legislature never intended the official to issue a permit where it expressly refused to answer the question remitted to it. In these circumstances there can be no doubt that section 3(3) confers jurisdiction and that "the superior court exercising its superintending and reforming power over the tribunal cannot, without itself refusing to exercise its own jurisdiction, refrain from ruling on the correctness" of the Board's decision: Syndicat des Employees de Production du Quebec et de L'Acadie v. C.L.R.B. (1984) 14 D.L.R. (4th) 457 at 463, 476 and 479. 26 Once an issue has been defined as jurisdictional the court must determine the correctness of the Board's decision in that regard. "The point is whether the Board does have the power to make such a decision. If it does not, it must be set aside however reasonable or desirable it may be or may appear to be": Syndicat, supra, at 478- 80. 27 In this sense, a mere error of law with respect to a jurisdiction-conferring section of the enabling statute will cause an administrative tribunal to lose jurisdiction: Syndicat, supra, at 463 and 476; Toronto Newspaper Guild, infra; Bibeault, supra, at 192. 28 A jurisdictional error of this nature (ie: an excess of power) can be committed at any stage of the proceeding: Syndicat, supra, at 477-78. 29 I pause at this juncture to note the passage in CUPE v. New Brunswick Liquor Corporation, infra, to which the petitioner refers where Dickson J. pointed out at p.422: The question of what is and is not jurisdictional is often very difficult to determine. The Courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so". (emphasis added) 30 The Petitioner submits that the Board erred in applying and interpreting a provision of the Regulation which describes and limits its jurisdiction to issue a permit and by doing so committed a jurisdictional error: Toronto Newspaper Guild v. Globe Printing [1953] 3 D.L.R. 561 (S.C.C.) at 578; Metropolitan Life Ins. Co. v. International Union of Engineers (1970), 11 D.L.R. (3d) 336 (S.C.C.) at 343. (b) Patently Unreasonable Error 31 The petitioner submits that alternatively, if the Board properly interpreted its jurisdiction under section 3(3), then by asking itself the wrong question in conjunction with refusing to answer the very question required under the Regulation, the Board exceeded its jurisdiction by making a patently unreasonable error: Service Employee Int. Union, Local 33 v. Nipawin District Staff Nurses Association (1973), [1974] 1 W.W.R. 653 (S.C.C.) at 657-8; adopted in CUPE, Local 963 v. N.B. Liquor Corp. (1979), 97 D.L.R. (3d) 417 (S.C.C.) at 425, as an example of a patently unreasonable error; also see Bibeault, supra, at 190-191. 32 In the CUPE decision, Dickson J., after referring to the examples of patently unreasonable error in the Nipawin case, described the error of patent unreasonableness in the following terms: "Did the Board here so misinterpret the provisions of the Act as to embark upon an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that it construction cannot be rationally supported by the relevant legislation and demands intervention by the Court upon review?": at 425; referred to in Bibeault at 191. 33 A patently unreasonable error will not be shielded from judicial review by a privative clause. Therefore, the Petitioner submits that by expressly asking itself the wrong question the Board stepped outside its jurisdiction to issue a permit in a manner which demands the intervention of this Court: Metropolitan Life, supra, at 343-4; Bibeault, supra, at 192. 34 On the second ground of review the petitioner submits that if the Board purports to be satisfied that the ultimate use of the Hydroxyl System in this case will not contravene the Act and Regulation, then this conclusion is incorrect or patently unreasonable. 35 To the extent that the Board purports to have evaluated the installation of a Hydroxyl System on the Property from the perspective of safeguarding public health as required under the Regulation, this is a matter within the jurisdiction of the Board. This is the very question the Legislature has authorized Health Inspectors to decide in issuing permits. Therefore, this court should not be quick to interfere with the conclusion of the Board on this issue. 36 To be satisfied under s.3(3) that the ultimate use of the experimental system would not contravene the Act and Regulation, the Health Inspector must evaluate the evidence with respect to the design and performance capabilities of a non-conventional system in conjunction with the physical characteristics of the site and facility to be served to determine whether the non-conventional system will remove any menace to public health. Furthermore, any sewage disposal system which could have an adverse effect on the health of a person will constitute a malfunctioning system for the purposes of the Regulation : s.1, Regulation. 37 The conclusion of the Board in this respect is a question of mixed law and fact. The Board must make findings of fact to which it can then apply the legal principles set out in the Act and Regulation. If the finding of the Board is unreasonable, then the court's intervention is justified: Blanchard v. Control Data Canada Ltd (1984), 14 D.L.R. (4th) 289 (S.C.C.) at 303. "The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts." 38 In the case at bar the Hydroxyl System is an experimental system in the process of being developed. At the time of the hearing most of the data available about the Hydroxyl System technology was collected at a demonstration site located at the Sidney sewage treatment plant where effluent from the plant was fed into various prototypes. 39 As far as testing the experimental technology under life-like conditions, the evidence before the Board indicated that the Hydroxyl System technology was currently in place in three locations in the Province of British Columbia. Of these the longest period of installation was for a period of approximately two years. This installation was also the only single family residential installation - the home of the inventor of the Hydroxyl System. 40 The evidence of Mr. David Featherstonhaugh, an employee of the company which is developing the technology, indicates the lack of adequate data for the Hydroxyl System. Q.What maintenance or service do the mechanical components or the electrical components require? A.At this point we are going on the basis of the installations that we have had over the past years at the Sidney Sewage Treatment Plant, where we've had a demonstration site. So at this point it is speculation on my part. We dont have an operating record, but our recommended maintenance is a six month inspection and then an annual thorough inspection, cleaning of screens, inspection of pumps, just to make sure that the system is operating. Q.Is the production of these solids greater within the Hydroxyl system than it would be within the standard septic tank? A.No, we anticipate it will be significantly less. 41 Bob Smith, Manager, Environmental of Environmental Health Programs, Ministry of Health testified that to date the only available data with respect to the Hydroxyl System was provided by Hydroxyl Systems Inc. itself - data collected from the prototypes operating at the Sidney treatment plant. Mr. Bob Smith also testified that the inventor of the Hydroxyl had been unable to provide information with respect to the chemical by-product of the Hydroxyl radical utilized by the system. 42 The petitioner submits the absence of adequate independent evidence before the Board of the Hydroxyl System's ability to perform satisfactorily as a sewage disposal system, is further exacerbated by the Board's silence with respect any findings of fact on this issue. 43 The petitioner further submits that the Board found as a fact that the Hydroxyl System was an experimental and untried technique for sewage disposal. "More specifically, the Appellant and any future owner of the Lot would have ample notice that the Lot was developed on the basis of an alternative and untried technology." (emphasis added) 44 The physical characteristics of the proposed site of the system must also be considered in evaluating an application to install a sewage disposal system: Regulation, section 3(3)(a) and Schedule 1. In the case at bar, effluent would be discharged from the Hydroxyl System approximately 100 feet from the shore of Shawnigan Lake (source of drinking water for surrounding properties). The groundwater under the Property flows in the direction of the lake and watercourse. The proposed absorption field is designed to quickly disperse the effluent, not to provide any secondary treatment. In these circumstances, should the quality of the effluent produced by the Hydroxyl System not live up to the expectations of its inventors, there is a significant risk to public health. 45 In these circumstances the Petitioner submits that it is patently unreasonable for the Board to purport to be satisfied that the ultimate use of the Hydroxyl System as proposed by Mountain Pacific would not contravene the Act and Regulation. In particular the Petitioner submits that it is unreasonable to conclude that the use of this experimental system in these circumstances would remove any menace to public health and not constitute a condition or circumstance which could adversely affect the health of a person. Therefore, the Petitioner submits that Board exceeded its jurisdiction by issuing a permit to Mountain Pacific for the Hydroxyl System. ANALYSIS PRIVATIVE CLAUSE OF THE ACT AND PRINCIPLES OF JUDICIAL REVIEW 46 In the Act there exists a privative clause. This is a statutory provision that purports to oust the inherent jurisdiction of the courts. S.120 of the Act states: 120. No order or other proceeding, matter or thing done or transacted in or relating to the execution of this Act, or of any rule or regulation authorized under it, shall be vacated, quashed or set aside for want of form, or removed or removable by certiorari or other writ of process into the Supreme Court. 47 We are indeed fortunate to have the Supreme Court of Canada give us a clear and precise distillation of the legal principles involved in this complex area of Judicial Review. In Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 (S.C.C.); (1994), 92 B.C.L.R. (2d) 145, the Supreme Court of Canada had an opportunity to summarize the law with respect to the principles of judicial review, and the effect of these privative clauses. At pp.404-5 Iacobucci J. stated: There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intention conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunals role or function. Also crucial is whether or not the agency's decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved. Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause is deciding a matter within its jurisdiction and where there is no statutory right of appeal: see C.U.P.E., Local 963 v. New Brunswick Liquor Corp. (1979), 97 D.L.R. (3d) 417, [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at p.1089; and Domtar Inc. v. Quebec (Commission dappel en matiere de lesions professionnelles) (1993), 105 D.L.R. (4th) 385, [1993] 2 S.C.R. 756. (Some citations deleted) At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights: see, for example, Zurich Insurance Co. V. Ontario (Human Rights Commission) (1992), 93 D.L.R.(4th) 346, [1992 2 S.C.R. 321; Canada (Attorney-General) v. Mossop (1993), 100 D.L.R. (4th) 658, [1993] 1 S.C.R. 554; and University of British Columbia v. Berg (1993), 102 D.L.R. (4th) 665, [1993] 2 S.C.R. 353. (Some citations deleted.) 48 At p.406 Iacobucci J. emphasized the high degree of deference that should given to specialized tribunals: [E]ven where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunals expertise. This point was reaffirmed in United Brotherhood of Carpenters and Joiners of America, local 579 v. Bradco Construction Ltd. (1993), 102 D.L.R. (4th) 402 at p.414, [1993] 2 S.C.R. 316, 12 Admin L.R. (2d) 165 (Bradco), where Sopinka J., writing for the majority, stated the following: ...the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunals decision in the absence of a full privative clause. Even where the tribunal's enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction. 49 The Supreme Court of Canada in Pezim also reiterated the pragmatic or functional approach articulated in Bibeault that is sometimes helpful in determining the standard of review that might be applicable in a case similar to the case at bar. At p.1088 Beetz J., writing for the court, stated: ...the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. 50 In analyzing the issues in the case at bar it may be prudent to individually canvass the principles enunciated in Pezim and Bibeault. (a) The Specialized Nature of the Board 51 The Board is established by s.11 of the Environment Management Act. The members of the Board are appointed by the Lieutenant Governor in Council for their qualifications, ability and experience. They alone can deal with the jurisdiction conferred upon them under the following enactments: - the Health Act; - the Commercial River Rafting Safety Act; - the Pesticide Control Act; - the Water Act; - the Waste Management Act; and - the Wildlife Act. 52 The Board, then, is designed as an umbrella board to deal with a variety of environmental matters. The expertise of the Board has been recognized by the British Columbia Supreme Court, in Olson v. British Columbia (Ministry of Environment, Wildlife Branch, Director) (August 21, 1989) Duncan Registry No. 2286 (B.C.S.C.) where Huddart J. (as she then was) states: The Environmental Appeal Board undoubtedly possesses an expertise with respect to the matters with which it deals that this court does not. It was constituted under the Environment Management Act to hear appeals under various enactments, all having to do with our environment. 53 The Board's role is limited to dealing with environmental matters. Through continuous exposure to environmental matters the members of the Board develop considerable expertise in the area. Further, the establishment of the Board to deal with environmental matters allows for consistency, and administrative efficiency. 54 In De Goutiere and Environmental Appeal Board (November 21, 1995) Victoria 95/1931 (B.C.S.C.) at pp.5-6, Quijano J. made reference to the Environmental Appeal Board as a "tribunal with special expertise with respect to environmental issues that might be brought before it, including the design, construction and location of septic systems". This was a matter conceded by the parties in that case, including the Petitioner. 55 In these proceedings, the Petitioner has conceded that the Board can be "taken be to have a certain degree of expertise in the matters which it is required to determine under the Act". (b) The purpose of the statute 56 Another consideration identified by the Supreme Court in Pezim relates to the purpose of the statute creating the Tribunal. In establishing the Board under the Environment Management Act, the Legislature intended to confer a very wide ambit of authority upon the Board to act as a final appellate body in respect of decisions under a variety of environmental legislation. 57 Under s.5(4) of the Act, when hearing an appeal from a person "aggrieved by the issue or the refusal of a permit for a sewage disposal system", the Board "may confirm, vary or rescind the ruling under appeal". This legislation identifies a clear legislative intent to provide the Board a wide ambit of appellate authority. Unlike in other statutes, the Board is not limited to determining whether there are, for example, "errors of law" or even "errors of mixed fact and law"; rather, it may "confirm, vary or rescind", the decision of the statutory officer, and enjoys the widest possible scope of remedial powers. (c) Privative clause 58 The legislative intent to confer the widest ambit of jurisdiction on the Board is reinforced by an explicit legislative provision designed to insulate the Board from judicial review. A privative clause is found in the constitutive Act. Section 120 of the Act provides: No order or other proceeding, matter or thing done or transacted in or relating to the execution of this Act, ... shall ... be removed or removable by certiorari or other writ of process into the Supreme Court. (d) Right of Appeal 59 In this instance, neither the Health Act nor the Environment Management Act provides for a right of appeal from the decision of the Board to the British Columbia Supreme Court. The only method available to the Petitioners for bringing the decision of the Board to the attention of this Court is an application for judicial review. 60 The standard of review on a judicial review is much narrower than the standard of review in an appeal of the decision of an administrative tribunal. As Gonthier, J. states in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) [1989] 1 S.C.R. 1722 at pp. 1745-46: It is trite to say that the jurisdiction of a court of appeal is much broader than the jurisdiction of a court on judicial review. In principle, a court is entitled, on appeal, to disagree with the reasoning of the lower tribunal. However, within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise. 61 The fact that there is no right of appeal is one factor that highlights the intention of the legislature to limit the review of such decisions to questions of whether the Board acted within its jurisdiction and whether its decision was patently unreasonable. This type of review differs from an appeal where the appellate court in some instances may substitute its opinion for that of an administrative board. 62 It is important to note, however, that even in cases where a statutory right of appeal is granted the Court will not substitute its opinion for that of the administrative tribunal if the decision of the tribunal was made within its jurisdiction and within its scope of expertise: Pezim, supra, p.167 (e) The Nature of the Problem Before the Tribunal 63 The role of the Board in this case can be contrasted with the situation in University of British Columbia v. Berg [1993] 2 S.C.R. 353 at pp. 369-370, where the Supreme Court of Canada held that the appropriate standard of review was one of correctness. In Berg, the question addressed was "what constitutes a service customarily available to the public". The Court held that the member-designate of the British Columbia Council of Human Rights has no particular expertise in determining this answer and hence a standard of correctness applies. The majority of the Supreme Court of Canada went on to hold that while they would not defer to the member-designate's interpretation of s.3 of the Act, they would defer to the factual findings made by the member-designate. 64 The nature of the question before the member-designate in Berg is very different than the nature of the questions that were before the Board in this instance. A superior court judge is as well placed as the administrative decision maker to answer the question of "what constitutes services to the public". In this instance, the Board in reaching its decision did indeed have to interpret legislation. However, the statutory interpretation questions before it were within its realm of acknowledged expertise and involved the Board analyzing questions of mixed fact and law. 65 In its Decision, the Board identified the following three issues: - Is the construction of the Hydroxyl System "a repair or alteration" to the existing pit privy, in accordance with Regulation 7(2)? - Is the water course a "non-tidal body of water", as defined in Regulation 1? - Did the Environmental Health Officer properly exercise his discretion under regulation 7(1)? 66 These issues all involve technical "environmental" considerations that the Board has been specifically created to address. Inevitably, the Board is called upon to interpret its constitutive legislation; however, in considering the above matters, the Board should be granted deference: Pezim, supra. 67 The majority of the Supreme Court of Canada states the following in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at pp. 336-337. "... a distinction can be drawn between arbitrators, appointed on an ad hoc basis to decide a particular dispute arising under a collective agreement, and labour relations boards responsible for overseeing the ongoing interpretation of legislation and development of labour relations policy and precedent within a given labour jurisdiction. To the latter, and other similar specialized tribunals responsible for the regulation of specific industrial or technological sphere, a greater degree of deference is due their interpretation of the law notwithstanding the absence of a privative clause." (emphasis added) (f) Wording of the Enactment Conferring Jurisdiction 68 Under s.5(4) of the Health Act, the Board is given very broad power to "confirm, vary or rescind" the ruling under appeal. As noted previously, this legislative formulation evinces a clear intent to provide the Board a wide ambit of appellate authority. Unlike in other statutes, the Board is not limited to determining whether there are, for example, "errors of law" or even "errors of mixed fact and law"; rather, it may "confirm, vary or rescind", the decision of the statutory officer with the widest possible scope of remedial powers. 69 The standard to be applied in this instance is one of reasonableness. The Board's determinations should be afforded a considerable degree of curial deference and be held to occupy a place near the "reasonableness" end of the spectrum identified in Pezim. The following factors highlight why this standard should be applied: i) the matter involves a judicial review and not a statutory appeal where the reviewing court is granted the power to substitute its opinion; ii) the decision made by the Board was made within its jurisdiction (a conclusion discussed more thoroughly later in these reasons); iii) the Board is a specialized board where the members are appointed by the Lieutenant Governor in council; iv) the purpose of the Environment Management Act is to set up a comprehensive appeal system to deal with various environmental matters. This includes the establishment of the Board to hear matters concerning the environment under a number of statutes; v) the nature of the question before the Board was within its realm of specialized expertise (a conclusion discussed more thoroughly later); vi) the Board is given very broad powers when considering the matter. (g) Did the Board decide a matter within its jurisdiction? 70 Section 5 of the Health Act provides for an appeal to the Board from the issue or refusal of a permit for a sewage disposal system. It provides: s.5(3) If a person is aggrieved by (a) the issue or refusal of a permit for a sewage disposal system (...) under a regulation made under subsection (1) (mm), the person may appeal that ruling to the Environmental Appeal Board established under section 11 of the Environment Management Act within 30 days of the ruling. 71 Under s.5(4) the Board is given the power to confirm, vary or rescind the ruling under appeal. 72 In this instance, the issues addressed by the Board are clearly within the jurisdiction and mandate of the Board as provided for in s.5 of the Act. At bottom, the Board was deciding whether or not to overturn the determination of the Environmental Health Officer and allow the installation of an alternative system for sewage disposal in the specific circumstances of a Lot at Shawnigan Lake. This is not an instance of an administrative board interpreting whether it had the jurisdiction to make a particular order. While a standard of correctness applies to administrative boards interpreting legislation which outlines their jurisdiction, the same is not so for boards interpreting legislation which is within their jurisdiction and realm of their expertise: Pezim, supra. 73 The Petitioner appears to accept the Board's full authority to reverse the decision of the Environmental Health Officer and exercise its discretion afresh under the Act and Regulations. Nor does the Petitioner take issue with "the jurisdiction generally of the Board to order the issuance of a permit". However, the Petitioner chooses to lay emphasis on the jurisdiction of the Board to issue a permit in any particular case as being "described and limited by the provisions of the Act and Regulations". Obviously, the more that a court can be persuaded to characterize the exercise of its judicial review authority as one of reviewing a "legislative provision limiting the Tribunal's power", the more scope there is for judicial intervention. To so label a Board's determinations flies in the face of the policy of curial deference reflected in the leading Supreme Court of Canada decisions of Pezim and CUPE, Local 963 v. New Brunswick Liquor Corporation, (1979) 97 D.L.R.(3d) 417 (S.C.C.). 74 In CUPE, Local 963 v. New Brunswick Liquor Corporation, (1979) 97 D.L.R.(3d) 417 at pp. 424-425, Dickson J. (as he then was) began his analysis by noting that the Board in that case was likewise required to interpret a statute. Noting the existence of a privative clause and the fact that the Labour Relations Board there was a "specialized Tribunal which administers a comprehensive statute", Dickson J. stated the following: In the administration of that regime, a Board is called upon not only to find facts and decide questions of law but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada and its labour relations sense acquired from accumulated experience in the area ... The interpretation of section 102(3) would seem to lie logically at the heart of the specialized jurisdiction confided to the Board. In that case, not only would the Board not be required to be "correct" in its interpretation, but one would think that the Board was entitled to err and any such error would be protected from review by the privative clause in section 101 ... Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the Court upon review? 75 The Court went on to find at p.429 that the Board's interpretation: "...would seem at least as reasonable as the alternative interpretations suggested in the Court of Appeal. Certainly, the Board cannot be said to have so misinterpreted the provision in question as to embark on an inquiry or answer a question not remitted to it". 76 In Pezim, Mr. Justice Iacobucci cites the following excerpt from the concurring judgment of Wilson J., in National Corn Growers Association v. Canada (Import Tribunal) [1990] 2 S.C.R. 1324 at p.1336: "Courts have also come to accept that they may not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that makes sense given the broad policy context within which that agency must work ...". 77 Similarly in Pezim, supra, at p.170 Iacobucci, J. cautioned against reading sections of a statute (or presumably a regulation) out of context: It must also be noted that the definitions in the Securities Act exist in a factual or regulatory context. They are part of the larger regulatory framework discussed above. They are not to be analyzed in isolation but rather in their regulatory context. This is something that requires expertise and thus falls within the jurisdiction of the Commission. This is yet another basis for curial deference. 78 Accordingly, it is my view that in this case, the Board was engaged in both interpreting and applying the relevant Regulation, something that it has done dozens of times to date. To paraphrase Mr. Justice Dickson in CUPE at p.425, the interpretation of [the Regulation] would seem to lie logically at the heart of the specialized jurisdiction confided to the Board. The Board here did not misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it. 79 In my view the Board did not "decline to answer the question it was required to determine" and "ask itself the wrong question". Rather, it faithfully interpreted and applied the relevant legislation. In addition, it is my view that the Petitioner's approach to judicial review should be rejected. 80 The Petitioner alleges that the Board lost or exceeded its jurisdiction to issue a permit by expressly declining to address the question it was required to determine under the Act and Regulations and "by asking itself a wrong question" instead. This formulation of the appropriate judicial review standard is in itself inconsistent with a policy of curial deference. It coincides with what a leading text refers to as the "high water mark of activist jurisdictional review doctrine in Canada". It is entirely inconsistent with the policy of curial deference that the Supreme Court in Pezim held should apply to the Board in these circumstances. In the words of a leading Canadian text on administrative law: In Canada, the reasoning adopted in Metropolitan Life, regarding both the interpretation of enabling legislation, and the respective roles of administrative agencies and the Courts has very much fallen out of favour. However, the decision has never been overruled (...) We have already encountered the leading case, CUPE v. New Brunswick Liquor Corporation ... In the context of the Court's current willingness to admit that legislation often does not have a uniquely "correct" meaning ... that it is always the function of the superior courts to supply. Evans, Janisch, Mullan & Risk, Administrative Law (3d edition, 1989), at p. 573 "Our courts have clearly, if implicitly, rendered of historical interest only the approach to jurisdictional review contained in Metropolitan Life." Evans, Janisch, Mullan & Risk, Administrative Law (4th edition, 1995) [TAB 21] at p. 820 81 Similarly, even if the Board was incorrect in determining that the application by the Respondent, Mountain Pacific. Mountain Pacific fell within the provision of s.7(1) of the Regulation, the Petitioner itself acknowledges that Mountain Pacific was simply appealing a determination of the Environmental Health Officer, Mr. Glen Smith, who himself proceeded on the basis of this section. 82 As noted by the Petitioner, the entire scheme of the Regulation turns on the requirement to have a permit that contains conditions considered appropriate to safeguard public health. Even if the appeal should have proceeded on the basis of s.3(3) of the Regulation, rather than s.7(1), the same public health issues arise. There is no substantive legal error that has been committed. To hold otherwise would be a triumph of form over substance. Throughout its Decision, the Board demonstrates its appreciation that its paramount concern is to safeguard the public health. 83 In my view, the Board agrees with the Petitioner that ultimately, s.25 of the Health Act must be complied with. However, the requirement that the "systems of sewerage remove any menace to public health" must be read against the specific administrative arrangements that have been established by regulation promulgated pursuant to the Health Act. The Regulation creates a comprehensive permitting scheme in this context. Under s.3(3)(a), the Medical Health Officer or Public Health Inspector may only issue a permit "if satisfied that ... construction, installation and ultimate use of the [sewage disposal] system will not contravene the Act or this regulation". 84 There could be no doubt that "safeguarding public health" is the ultimate requirement of both the Act and the Regulation. In achieving the legislative intent, therefore, it is immaterial whether the Environmental Health Officer or, the Board on appeal from his determination, proceeded under s.7 or s.3(3)(a). 85 The Petitioner complains that the Board did not expressly refer to the requirements of s.3(3) in its Decision, and appears to only consider the application in terms of s.7(1) of the Regulation. But in the very excerpt from the decision that it cites, the Board is clearly cognizant of the "Ministry of Health's statutory obligation to protect public health". It is simply erroneous to claim that the Board "failed to consider at all whether the ultimate use of the Hydroxyl System would contravene the Act and Regulations". 86 Of the three issues considered during the appeal, the third issue was framed as follows: "Did the Environmental Health Officer properly exercise his discretion under Regulation 7(1)"? 87 In my view the reason it is framed in this fashion is because the Environmental Health Officer rejected Mountain Pacific's application for a permit to construct a sewage disposal system. 88 The Environmental Health Officer initially rejected the application for two reasons: 1. The application proposes to circumvent the requirements of the Sewage Disposal Regulation in that it would not be located 30m from the high water mark of a body of non-tidal water. 89 The Board held that the water course on the Appellant's property was not a "non-tidal body of water" for the purposes of the Regulation. 2. The only other reason for rejecting the application was that "none of the four criteria in the Policy on Innovative Designs and Technologies could be met". 90 It is indisputable that this internal Ministry of Health "Policy" is in no way binding on the Board. Although the Board did apply it, as a matter of law, it was not obliged to do so. The Policy is not a statute or regulation binding on the Appeal Board, any more than it can fetter the discretion conferred by the Regulation on the Environmental Health Officer. As a matter of law, the Board has full jurisdiction to consider afresh the decision of the Environmental Health Officer and may "confirm, vary or rescind" his or her ruling. 91 As it happens, the Board did choose to examine the four criteria in the Policy for determining whether or not an alternative system can be considered. It held that there were two relevant criteria for determining whether an "innovative system" may be considered: 1. It is proposed to correct a failing system and neither a conventional septic tank system, a conventional package treatment plant system or an alternative system currently in use ("current systems") is feasible, and the only solution and back-up if the experiment proves unsuccessful is a holding tank. 92 The Board rejected the Appellant's argument that its current "privy" is "a failing system" and the Hydroxyl System was needed to replace it. The Board held that the Environmental Health Officer properly exercised his discretion with respect to interpreting this first criterion and the Petitioner does not challenge this determination. 93 The other relevant criterion was the following: 3. It is proposed where there is an existing properly functioning system and the device/system is proposed in order to demonstrate a technology and/or gather treatment or performance data. In such cases, the existing system serves as the back- up and should be capable of being put back in service following the test or if the "system" proves unsuccessful. 94 The Policy requires, then, that the existing system must continue to be in place for back-up purposes. The Board found that these requirements were reasonable "to safeguard public health". (EAB Decision, p.10.) 95 The Environmental Health Officer had determined that the "privy" system was not an "adequate back-up" and was not prepared to exercise his discretion in the Appellant's favour, believing that a conventional system must be available as a back-up, in order to satisfy the policy. Mr. Smith characterized the Hydroxyl System as a method of circumventing the Regulation. The Board disagreed. It found that as Mountain Pacific was prepared to agree to subjecting its lot to a very stringent restrictive covenant with respect to the Hydroxyl System, "The legitimate concerns of the Ministry of Health as to the protection of public health in the event that the Hydroxyl System does not perform as claimed can be addressed. More specifically, the Appellant and any future owner of the Lot would have ample notice that the Lot was developed on the basis of an alternative and untried technology. In the event that the technology failed or did not meet the requirements of the Ministry of Health for final approval, then the system could no longer be used. The alternative in this case may not be satisfactory to the Appellant or any subsequent user, being simply a "pit privy". However, in the event that the Appellant is prepared to enter into such a restrictive covenant as a condition of a permit, the risk of success or failure of Hydroxyl System would be placed solely on the shoulders of the Appellant. In the event that the system failed or did not perform to claimed standards, then the Ministry of Health's statutory obligation to protect public health under section 7(1) of the Regulation would be met, in that the system could no longer be operated. If the system in fact does operate as claimed, again the Ministry of Health would have adequately protected public health, given the very high quality of the effluent alleged to be produced by the Hydroxyl System ... In this case, any monies expended by the Appellant in developing the lot and installing the system, may well be thrown away should this system subsequently found not to operate properly. The Appellant will then have no option but to revert to the use of the existing "pit privy" which will severely limit the use of any residence." 96 The Board then proceeded to attach nine specific conditions to the restrictive covenant. 97 This determination, in my view, "lies logically at the heart of the specialized jurisdiction confided to the Board". In recognition of the Board's expertise in environmental matters, conceded by the Petitioner, the Court should be slow to brand as "jurisdictional" any such determination. Even if the Board was erroneous in interpreting the Policy. It is entitled to reach its own conclusion on the merits of whether or not a permit should be granted for the "construction, installation and ultimate use of the system". 98 Having come to the conclusion that the Board has recognized its statutory responsibilities in this regard, I am not prepared to second guess the Board as to the manner in which it frames and drafts its Decision. Otherwise, a very formalistic approach to judicial review would be applied, inconsistent with the current approach of the Supreme Court of Canada and with the policy of curial deference to be applied in this context. It would also be entirely inconsistent with the "pragmatic or functional" approach advocated in Pezim and U.E.S., Local 298 v. Bibeault (1988), 35 Admin. L.R. 153 (S.C.C.). 99 In my view, the Board has not "refused to answer the question it was required to answer under the Regulation". It was operating squarely within the four corners of its statutory jurisdiction, namely, to review the discretion of the Environmental Health Officer in rejecting a sewage disposal permit. 100 The Petitioner also submits that the Board "asked itself the wrong question". It is implicit from the decision that the Board did indeed evaluate the merits of the Hydroxyl System. The Board did indeed address "whether the use of the proposed system will remove any menace to public health". Evidence to this effect was led before the Board and argument proceeded on this central issue. 101 The Board did not "instead" consider what safeguard was in place in the event that the Hydroxyl System failed to perform adequately. Rather, it was satisfied that in the event that the system were to fail, the public health would be safeguarded as a result of the conditions of the restrictive covenant. The Board, in my view, did address whether the installation and ultimate use of the Hydroxyl system would not contravene the Act or the Regulation since it concluded that the alternative system would function properly. Similarly, in the Decision, the Chair refers specifically to the requirements of safeguarding public health in his review of the Environmental Health Officer's discretion. 102 The extraordinary circumstance of this case is the express willingness of the Applicant to enter into such onerous terms. The fact that in exercising its discretion afresh the Board laid greater emphasis on these unique circumstances is precisely what the legislature intended that an expert Board be able to do in these circumstances. The fact that it focused greater attention on the terms of the restrictive covenant than on its threshold determination that the alternative system will function as indicated does not mean that the Board "asked itself the wrong question"; it merely means that it answered the correct question in a manner and with a conclusion that the Petitioner does not accept: Vancouver (City) v. British Columbia (Workers' Compensation Board), [1995] 4 W.W.R. 744 (B.C.C.A.) at p.748. 103 The Petitioner claims that "any sewage disposal system which could have an adverse effect on the health of a person will constitute a malfunctioning system for the purposes of the Regulation". If the Petitioner's argument is that the Board must be absolutely certain that a sewage disposal system functions without any risk of harm, this would be an impossible standard to achieve. Similarly, there would be never any need for the Ministry to require such restrictive covenants. Yet as a matter of logic, there can never be absolute certainty that a system will function as anticipated. In those circumstances where the Ministry seeks a restrictive covenant, like the Board, it must have been "satisfied that (...) the installation and ultimate use of the system will not contravene the Act or the regulation", in accordance with s. 3(3) of the Regulation, but surely not to the degree of absolute certainty. THE PETITIONER'S SECOND GROUND OF REVIEW 104 As an alternative argument, the Petitioner argues that "if the Board purports to be satisfied that the ultimate use of the Hydroxyl System in this case will not contravene the Act and Regulation, then this conclusion is incorrect or patently unreasonable". In my view this determination lies within the four corners of the Board's jurisdiction, I am therefore of the view that I should not interfere with the Board's conclusion, unless it is "patently unreasonable" or "irrational", which is not the case. See Vancouver (City) v. British Columbia (Workers' Compensation Board), [1995] 4 W.W.R. 744 (B.C.C.A.), at p.749. 105 In my view this ground for review by the petitioner is nothing but a disguised attempt at an appeal of the decision of the Board. 106 The Board reviewed the evidence on the Hydroxyl System and the Property. It concluded its solution was appropriate given its mandate and expertise. There is nothing so patently unreasonable in the decision so as to necessitate my overturning it. CONCLUSION 107 In view of the foregoing, the petition for judicial review is denied. At the outset, I described the Phillips as hapless pawns in this litigation. Apart from that the issues raised in this petition have been complex. I am therefore going to accede to the request of Mr. McDaniel, counsel for Mountain Pacific to order costs at scale four against the petitioner in favour of Mountain Pacific. 108 I would be remiss if I did not take this opportunity to express my heartfelt thanks to counsel in this matter for their most able submissions in this matter. Vancouver, B.C. "Romilly, J." July 9, 1996