Date: 19990429 Docket: A982268 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: HOWE SOUND PULP AND PAPER LIMITED PETITIONER AND: THE ENVIRONMENTAL APPEAL BOARD, LIZ LILLY in her capacity as DEPUTY DIRECTOR OF WASTE MANAGEMENT, H.R. ROBERTS in his capacity as REGIONAL WASTE MANAGER and TERRY JACKS RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE CLANCY Counsel for the Petitioner: K.A. Blair C.G. Proudfoot Counsel for the Respondent, The Environmental Appeal Board: C.J. Parker Counsel for the Respondent, Terry Jacks: S. Fraser Place and Date of Hearing: Vancouver, B.C. April 14, 1999 [1] Howe Sound Pulp and Paper Limited ("HSPP") owns and operates a pulp and paper mill in Port Mellon, British Columbia. In 1997 HSPP operated the mill on the authority of a permit issued by the Regional Waste Manager appointed under the Waste Management Act, R.S.B.C. 1996, c. 482. It found the conditions attached to the permit onerous and applied to the Regional Waste Manager for an amended permit. Amended Permit PA-3095 was issued on April 29, 1997. Part of that permit provided for specified levels of emission of sulphur dioxide and nitrogen dioxide into the air. [2] On May 7, 1997 an environmental group called Environmental Watch founded by the respondent Terry Jacks, advised the Deputy Director of Waste Management (The "Deputy Director") that Environmental Watch would appeal the decision of the Regional Waste Manager to issue the amended permit. [3] On August 13, 1997 the Deputy Director granted standing in the appeal to HSPP. [4] On October 27, 1997 HSPP raised with the Deputy Director the question of whether Environmental Watch should have standing in the appeal. [5] On February 6, 1998 the Deputy Director decided that Environmental Watch had no standing to bring the appeal but she extended the time for Mr. Jacks to commence the appeal and granted him standing. That decision was appealed by HSPP to the Environmental Appeal Board ("the Board") on March 9, 1998. [6] On July 17, 1998 the Board upheld the decisions of the Deputy Director. HSPP now applies to this court pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 for an order setting aside the decision of the Board and for declarations that Mr. Jacks has no standing to appeal the decision of the Regional Waste Manager to the Deputy Director and that the time to commence the appeal should not have been extended for Mr. Jacks. Amendment of the Petition [7] In its petition, HSPP referred only to the decisions of the Deputy Director and the Board as being patently unreasonable. It seeks to amend the petition to allege that the decisions were both incorrect and patently unreasonable. The respondents object to the amendment and seek to hold HSPP to the standard of patent unreasonableness. [8] The amendment should be allowed. On applications for judicial review, it is necessary for the court to decide upon an appropriate standard of review: Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 (S.C.C.). It would be inappropriate for the court to consider only the standard of patent unreasonableness. The court must be free to consider the various standards available for review. [9] The applicable law provides, as well, that under R. 24(1) of the Rules of Court, amendments should be allowed unless prejudice can be demonstrated by the opposing party or the amendments would be useless: Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.). Neither has been established in the proceedings before me. The amendment is allowed. The Legislation [10] The legislative framework which provides jurisdiction for the Deputy Director and the Board is found in the Waste Management Act, R.S.B.C. 1996, c. 482. The provisions were later amended but counsel for all parties agree that the following sections of the Act applied to the deliberations of the Deputy Director and the Board: Appeals 44 (1) Subject to this Part, a person who considers himself or herself aggrieved by a decision of (a) a manager, may appeal to the director, or (b) the director or a district director, may appeal to the appeal board. Procedure on appeals to the director 45 (3) The director may extend the time for commencing an appeal to the director either before or after the time has elapsed. (4) On considering an appeal, the director may (a) hold a new hearing, (b) confirm, reverse or vary the decision appealed from, and (c) make any decision that the manager could have made and that the director considers appropriate in the circumstances. 46 (3) On considering an appeal, the board may (a) hold a new hearing, (b) confirm, reverse or vary the decision appealed from, and (c) make any decision that the person whose decision is appealed could have made and that the board considers appropriate in the circumstances. Standing [11] Before the Deputy Director and, subsequently, the Board, the contention of Environmental Watch and Mr. Jacks was that they were, under s. 44, persons who considered themselves aggrieved by the decision of the Regional Waste Manager. The Deputy Director ruled that Environmental Watch was not a "person" within the meaning of the Act. She therefore allowed Mr. Jacks to bring the appeal on his own behalf and extended the time within which he could bring the appeal. Before reaching that conclusion, she found that Mr. Jacks was a person who would be entitled to standing. [12] When HSPP appealed the decision of the Deputy Director to the Board, it relied on Yulka and Minister of Social Services (1982), 138 D.L.R. (3d) 574 (Sask. Q.B.) and CUPE Local 30 v. Alberta (Public Health Advisory and Appeal Board) (1996), 34 Admin. L.R. (2d) 172 (Alta. C.A.) in support of the proposition that Mr. Jacks was required to show that he had a direct and personal interest in the matter under appeal. [13] The evidence before the Board and the affidavit evidence in these proceedings shows that Mr. Jacks resides in Madeira Park, 40 kilometres from Port Mellon, that he boats occasionally in Howe Sound where the mill is located, and that he crosses Howe Sound from time to time on the ferry from Langdale to Horseshoe Bay. [14] The Deputy Director and the Board made reference to two previous decisions of the Board, Metalex Products Limited v. Director of Waste Management (Environmental Appeal Board, Appeal No. 96/17(b), April 24, 1997) (unreported) and Keays and Goggins v. Regional Waste Manager (Environmental Appeal Board, Appeal No. 97-WAS-10(a), November 17, 1997) (unreported). In Metalex, supra, the Board held that a person who considers himself or herself aggrieved is a person who has a genuine grievance because an order had been made which prejudicially affects his or her interest. That decision dealt with the dumping of slag material and not with air emissions. In Keays, supra, the Board dealt with an allegation of pollution by air emission and held that considerations of residency and proximity were relevant to the reasonableness of a person's belief that he or she is aggrieved. There, the appellant lived 2.5 kilometres from the air emission source and his children attended school within 1 kilometre of that source. The Board granted the appellant standing. [15] Finally, the Board made reference to Giglio Enterprises Ltd. v. Edward Link (1989), O.J. No. 1652, Action No. DCM 4355/89 (Ont. D.C.) where the court considered the phrase "any person who considers himself aggrieved" and held: It must be noted that s. 15(1) uses the words "any person who considers himself aggrieved." This must include a class of persons wider than "any person aggrieved...." In any event, it cannot include every person who, for whatever reason, has a personal axe to grind, whether real or fanciful, against the municipal authorities.... At the very least there must be reasonable grounds for believing oneself aggrieved. [16] The Board found that, despite the subjective language of s. 44 of the Act, an appellant must have reasonable grounds for believing he is a person aggrieved. Specifically, the Board held that Mr. Jacks reasonably believed his interests had been prejudicially affected. It noted that: His interests in this case are the concerns he has for the protection of the health of himself, his family and his environment. His belief that the amended Permit prejudicially affects those interests is reasonable due to his proximity to the mill. As the Board has noted in previous decisions, air emissions, unlike some other pollutants, are not always localized in their effects. Air emissions can travel over significant distances and in different directions depending on weather conditions. Accordingly, Mr. Jacks could reasonably expect to be affected by the emissions from the mill, depending on weather conditions. Moreover, he could reasonably expect to be affected by the emissions because, as a resident of the Sunshine Coast, he is necessarily a frequent traveller in and around Howe Sound (the location of the mill). [17] The Board went on to find that Mr. Jacks did not need to provide evidence that air emissions would reach him or his family or that the amended permit would necessarily result in an increase of air emissions above the levels already discharged by the mill. In its view, those considerations would be issues going to the merits of the appeal. The Board held that Mr. Jacks was under no obligation, "to provide evidence that his interests will likely or necessarily be affected only that they may be affected." [18] HSPP submits that the Board fell into error after adopting the correct test for determining whether Mr. Jacks was a person who considered himself aggrieved. In its submission, the Board was wrong in law when it held that Mr. Jacks must show that he reasonably believed that he was a person aggrieved. HSPP contended that it is necessary for the Board to reach an objective conclusion that he was a person who could reasonably think himself aggrieved. To allow standing to anyone who simply thought himself aggrieved is an expansion of the Board's jurisdiction beyond that granted to it by the Act. [19] The first task of the court in reviewing the decision of an administrative tribunal is to determine what standard of review the legislature intended when it granted jurisdiction to the tribunal. In allowing the amendment to the petition of HSPP, I held that the amendment was appropriate because it is incumbent upon me to determine the applicable standard of review. [20] In Pezim, supra, at 404-405 Iacobucci J. held as follows: ... 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 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 ... (emphasis added) 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.... [21] More recently, in Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1 (S.C.C.) at 19 the Supreme Court of Canada developed the approach further by adopting a middle standard of "reasonableness simpliciter." Whether that standard applies only to statutory appeals is a matter of some debate but I will assume that a reasonableness standard is an option available in these proceedings. In dealing with that standard, Iacobucci J. said: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination ... The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but is not patently unreasonable. [22] In Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 (S.C.C.) at 209 the court held that when considering which standard of review to apply, the central question to be asked is the legislative intent embodied in the statute. It framed the question for the reviewing court as "[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive jurisdiction of the Board?" [23] At pages 210 to 215 the court went on to say that in answering the question of legislative intent, the courts must take a "pragmatic and functional approach." The factors to be considered and which must be balanced are: (a) the expertise of the tribunal; (b) the purpose of the enabling statute as a whole, and of the provisions at issue in particular; (c) the nature of the problems before the tribunal; and (d) the existence of a privative clause or statutory right of appeal. [24] The Waste Management Act does not contain a privative clause, nor is there any provision for an appeal. That suggests an intention on the part of the legislature to limit review to questions of whether the Board acted within its jurisdiction and whether the 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": British Columbia (Minister of Health) v. British Columbia (Environmental Appeal Board) (1997), 26 B.C.L.R. (3d) 367 at 389. See also Bell Canada v. Canada (Canadian Radio-Television & Telecommunications Commission), [1989] 1 S.C.R. 1722 (S.C.C.). [25] As to the expertise of the tribunal, it has been held that expertise is the most important factor to be considered in settling on a standard of review: Southam, supra, p. 17. In respect of environmental matters, there is no question that the Board has expertise which the court does not possess. That was recognized in Olson v. British Columbia (Ministry of Environment, Lands and Parks) (1989), B.C.J. No. 1579 (Q.L.) (B.C.S.C.). It is common ground that, where a decision involves expert knowledge, the court should defer to the tribunal: Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983. [26] Turning to the purpose of the legislation, counsel have defined the purpose of the Act as protection of the environment through the prevention of pollution. That is certainly the thrust of the legislative provisions. [27] Balancing the relevant factors and turning to the specific nature of the problems before the tribunal, I conclude that the question of standing is one that was intended by the legislature to be left to the exclusive jurisdiction of the Board. [28] The contention of HSPP that the decision of the Board expanded the jurisdiction given to it therefore makes the decision purely a consideration of jurisdiction and therefore a question of law, cannot be supported. The question requiring determination by the Board was whether, viewed objectively, the facts before the Board provided a basis for Mr. Jacks to consider himself aggrieved by the decision of the Regional Manager. I cannot agree that the Board lost sight of the objective nature of its inquiry nor can it be said that the test it articulated was inappropriate. [29] I find, as well, that the expertise of the Board was engaged. It was entitled to apply its expert knowledge in determining whether Mr. Jacks could reasonably consider himself aggrieved, considering the location of his residence and his travels in the area. The Board was not applying general provisions where expertise was not involved. The question of whether "residency and proximity" were a sufficient basis for a determination that Mr. Jacks could reasonably consider himself aggrieved was for the Board to decide. [30] Returning to Pezim, supra, the issues do not concern the interpretation of a provision limiting the tribunal's jurisdiction. What HSPP seeks to do is find fault with the application of s. 44 to the particular circumstances of Mr. Jacks. I agree with the respondents that the question before the Board was a mixed question of fact and law. As stated by Iacobucci J. in Southam, supra (p. 12): Briefly stated, questions of law are about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal test. [31] In determining questions of mixed law and fact, the weight to be accorded to each factor is a matter for the tribunal: Southam, supra, p. 15. [32] I am satisfied that the appropriate standard of review is the standard of patent unreasonableness. As stated earlier, if the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable: Southam, supra, p. 19. Here the decision cannot be said to be patently unreasonable. This court should defer to the expertise of the Board. Its decision upholding the decision of the Deputy Director and granting standing to Mr. Jacks should not be disturbed. [33] If I am wrong and the appropriate standard of review is one of reasonableness, for the reasons given I am further satisfied that the decision of the Board was reasonable. The result does not change. The decision of the Board should not be set aside. Extension of Time [34] Section 45(3) provides the Director with a statutory discretion to extend the time for commencing an appeal. In exercising that jurisdiction, the Deputy Director and, subsequently, the Board, adopted the test put forward by HSPP and considered whether Mr. Jacks had a bona fide intention to appeal. Environmental Watch and Mr. Jacks were found to be essentially the same entity. Mr. Jacks was therefore found to have had an intent to appeal from the beginning. [35] I again find that the appropriate standard of review is whether or not the decision was patently unreasonable. The jurisdictional issue does not arise since jurisdiction is vested in the Deputy Director by the statute. Applying the test of whether there is a defect apparent on the face of the tribunal's reasons, I conclude that there is not. The test adopted was appropriate and the conclusion was reasonable. [36] The decision of the Board should not be set aside. If the appropriate test is reasonableness, I find the decision of the Board to be reasonable. Conclusion [37] The petition of HSPP is dismissed. The respondent, Jacks, is entitled to his costs on Scale 3. The Board has not sought to recover costs. "Clancy, J." _________________________________ The Honourable Mr. Justice Clancy