1999 ABEAB 37 Appeal No. 99-132 - D
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ALBERTA ENVIRONMENTAL APPEAL BOARD DECISION
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Date of Preliminary Meeting - November 29, 1999
Date of Decision - December 29, 1999
IN THE MATTER OF Sections 84, 85 and 87 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);
-and-
IN THE MATTER OF appeals filed by Mr. Carson Bruinsma and Ms. Martina Bruinsma with respect to Approval No. 15484-01-00 issued to Inland Cement Limited by the Director, Northeast Boreal Region, Alberta Environment.
Cite as: Bruinsma v. Director, Northeast Boreal Region, Alberta Environment, re: Inland Cement Limited.
TABLE OF CONTENTS
BACKGROUND............................................................................................................................ 1
THE PRELIMINARY MEETING................................................................................................. 2
SUMMARY OF THE PARTIES’ STATEMENTS ON THE ISSUES......................................... 6
DELIBERATIONS OF THE BOARD ON WHETHER THE APPEAL
IS PROPERLY BEFORE THE BOARD.................................................................................... 11
DECISION OF THE BOARD .................................................................................................... 19
HEARING BEFORE Dr. Steve E. Hrudey, Panel Chair
Dr. Ted W. Best
Dr. John P. Ogilvie
APPEARANCES Appellant: Mr. Carson Bruinsma
Department: Ms. Heather Veale, counsel, Alberta Justice, representing Mr. Kem Singh, Director, Northeast Boreal Region, Alberta Environment
Approval Holder: Mr. Dennis Thomas, Q.C., counsel, Fraser Milner, representing Mr. Keith Meagher and Mr. Wes Dolhun, Inland Cement Limited
BACKGROUND
[1] The Environmental Appeal Board (Board) received appeals from Mr. Carson Bruinsma and Ms. Martina Bruinsma dated June 10, 1999 and filed on June 11, 1999 (Appellants) with respect to Approval 15484-01-00 issued on May 5, 1999, to Inland Cement Limited (Approval Holder) by Mr. Kem Singh, Designated Director, Northeast Boreal Region, (Director) Alberta Environment (Department) for the opening up, operation and reclamation of a pit on NW 16, E 16 and W 21-53-25-W4M.
[2] The Board acknowledged receipt of the Appellants’ appeals and requested from the Department of Environment copies of all related correspondence, documents and materials. On June 16, 1999, the Board advised Inland Cement Limited that appeals had been filed and provided them with a copy of the Appeal.
[3] According to standard practice, the Board wrote to the Natural Resources Conservation Board (NRCB) and the Alberta Energy and Utilities Board (AEUB) asking whether this matter had been the subject of a hearing or review under their respective Boards’ legislation. Replies were subsequently received from the NRCB and the AEUB advising that they did not hold any hearings or reviews of this matter.
[4] On July 13, 1999 the Board received letters from the Department of Environment and from counsel for Inland Cement Limited, requesting that the appeal be dismissed on the following grounds:
“The appeal is frivolous, vexatious or without merit (EPEA, sub-para. 87(5)(a)(i));
[And that] The appeal is not properly before the Board because the purported ground of appeal is not a relevant factor for the Director to have considered in issuing of the approval under the Environmental Protection and Enhancement Act.”
[5] On August 5, 1999, the Board advised the parties in writing of the following:
“...Upon consideration of this request, the Board has determined that it is prepared to receive submissions on the issues outlined as follows:
1. Pursuant to s.87(5)(a)(i) of the Environmental Protection and Enhancement Act, is the appeal frivolous, vexatious or without merit; and/or
2. Pursuant to s.87(5)(a)(i.2) of the Environmental Protection and Enhancement Act, is the appeal properly before the Board because the purported ground of appeal is not a relevant factor for the Director to have considered in issuing the Approval.”
[6] All parties submitted their written submissions to the Board.
[7] On October 8, 1999, the Board advised the parties of their decision to hold a preliminary meeting, and advised the parties of the procedures for the preliminary meeting.
[8] On November 22, 1999, the Board received an affidavit sworn by Mr. Carson Bruinsma pertaining to recent activities near the Bruinsma residence which Mr. Bruinsma maintained illustrated the nature of problems which might arise from the activities of Inland Cement Limited in accordance with Approval No. 15484-01-00.
[9] On November 26, 1999, the Board received a letter from Mr. Thomas, on behalf of Inland Cement Limited objecting to the Board considering the Bruinsma affidavit on the grounds that it was entirely irrelevant to the grounds of appeal stated in the Notice of Appeal. This communication also included an affidavit sworn by Mr. Keith Meagher of Inland Cement Limited to respond to the Bruinsma affidavit if the Board decided that it was prepared to allow the November 22, 1999 Bruinsma affidavit to be considered at the preliminary meeting of November 29, 1999.
THE PRELIMINARY MEETING
[10] The Board held a preliminary meeting on November 29, 1999, in Edmonton pursuant to section 87 of the Environmental Protection and Enhancement Act (the Act).[1] The purpose of the preliminary meeting was to decide, whether:
1. Pursuant to section 87(5)(a)(i) of the Environmental Protection and Enhancement Act, is the appeal frivolous, vexatious or without merit; and
2. Pursuant to section 87(5)(a)(i.2) of the Environmental Protection and Enhancement Act, is the appeal properly before the Board because the purported ground for appeal is not a relevant factor for the Director to have considered in issuing the Approval.
[11] Before proceeding with the two foregoing issues the Board asked if there were any preliminary matters to be raised by any of the parties. Mr. Thomas raised the issue covered in his letter to the Board of November 26, 1999, asking the Board to disregard the November 22, 1999 Bruinsma affidavit as irrelevant to the purpose of the preliminary meeting. Mr. Bruinsma indicated that he provided the affidavit to deal with any challenge to his standing as a person directly affected by the Approval. Ms. Veale indicated that the Department agreed with deciding before the start of the preliminary meeting whether this affidavit should be reviewed and considered by the Board at the preliminary meeting.
[12] Mr. Thomas first indicated that his client was prepared to go on the record as accepting the status of the Bruinsmas as persons affected. Mr. Thomas argued that the affidavit should not be admitted into evidence for the preliminary meeting because it deals only with activities which have occurred well after the decision of the Director and that the activities described in the affidavit are irrelevant to the grounds stated in the Notice of Appeal[2]. Because the issue of prematurity with respect to the Development Permit process was the sole ground stated in the Notice of Appeal, Mr. Thomas argued that the recent activities described in the Bruinsma November 22, 1999 affidavit have nothing to do with their Notice of Appeal and are therefore irrelevant to the purpose of the preliminary meeting.
[13] Ms. Veale agreed with the position taken by Mr. Thomas, that the November 22, 1999 affidavit was irrelevant to the purpose of the preliminary meeting. Likewise, Ms. Veale confirmed that the Department took no issue with the directly affected status of the Bruinsmas.
[14] Mr. Bruinsma made reference to the Alberta Environment Guide for Pits, noting that the Planning Act[3] gives municipalities the authority to regulate land use affecting pit operations in terms of location, compatibility with adjacent land use, buffers, noise and traffic. Mr. Bruinsma argued that his November 22, 1999 affidavit was relevant because it illustrated what impacts they could be facing from activities under the Approval which his Notice of Appeal maintains should not have been issued until the Development Permit issuance and redistricting issues had been completed.
[15] The Board considered the arguments of the parties concerning this preliminary motion. The timing of the November 22, 1999 affidavit concerning issues arising since the Director's decision was not accepted as a reason for precluding admission into evidence for the
preliminary meeting. The Board noted that section 87(2)(d)[4] of the Act addresses the matter of new information at a preliminary meeting for considering the issues to be addressed on appeals which are properly before the Board. Although this preliminary meeting was called to address the question of whether this appeal was properly before the Board, it is well established that the Board hearing will be a de novo hearing[5] and section 87(2)(d) provides the scope for the consideration of information that was not available to Director at the time of his decision. On the matter of the relevance of the November 22, 1999 affidavit to the Board's deliberations about whether the Appeal should be dismissed on either of the two grounds[6] raised by the Department and the Approval Holder, the Board was reluctant to preclude the November 22, 1999 affidavit, before allowing the Appellant a full and fair opportunity to respond to the motion to dismiss the Appeal at the preliminary meeting. Accordingly, the Board declined to prevent consideration of the November 22, 1999 Bruinsma affidavit for the purposes of the preliminary meeting. The Board advised that, after hearing the submissions of all of the parties, it would decide how much weight, if any, this affidavit should have upon the deliberations concerning the Appeal.
SUMMARY OF THE PARTIES’ STATEMENTS ON THE ISSUES
[16] Mr. Bruinsma presented a brief in support of his arguments[7] which included extracts from the Alberta Environmental Protection Guide for Pits (December 1995)[8] and referred the Board to the Approvals and Registration Procedure Regulation, section 3(1)(s)[9] which confers the authority on the Director to be able to require from an applicant information that is addressed in departmental guidance documents. Mr. Bruinsma noted references in the Guide for Pits to the role of the Planning Act in affecting "pit operations in terms of location, compatibility with adjacent land uses, buffer zones, noise, traffic routes and traffic control" and to the role of the Development Permit.
[17] Section 2.1.3 of the Guide states: "Operators must obtain a Development Permit from the local municipality....Alberta Environmental Protection normally will not issue an EPEA approval until the municipality has resolved land use issues." Section 2.2.1(7) of the Guide states: "The Director issues the approval. Normally, the approval will not be issued until the local authority issues a Development Permit." Mr. Bruinsma argued that in the case before the Board that the Director had an incomplete application and he was prohibited by section 4(1) of the regulations[10]
from reviewing an incomplete application. Accordingly, Mr. Bruinsma argued that the grounds (stated in the Notice of Appeal that the Director was premature in issuing an Approval until the completion “of the Development Permit process of the City of Edmonton, and on other Municipal Government Act processes such as a Servicing Concept Design Brief") are valid appeal grounds. Mr. Bruinsma elaborated that the departmental guidance document[11] demonstrates that there were relevant factors which he argues were not considered by the Director in issuing an Approval before completion of the Development Permit process, thereby allowing the Board to recommend that the Approval be withdrawn pending a complete review by the Director.
[18] When questioned whether or not the (Environment) Approval and Development Permit processes could proceed in parallel, Mr. Bruinsma replied that they could proceed in parallel, but that the departmental guidelines clearly show that the Director ought to make sure that the planning issues are first addressed; then, he would be free to make his decision.
[19] Mr. Bruinsma acknowledged that a Development Permit had been issued and that he had appealed to the City of Edmonton Subdivision and Development Appeal Board (SDAB) and although he believes that the SDAB did not deal with the issues of compatibility to the degree that they should, he was provided a full opportunity to make his case before the SDAB. Mr. Bruinsma believes that because the City is developing an area structure plan that will address compatibility issues, he would be in a better position to argue his case before the SDAB now and in the future than he was in April 1998.
[20] Ms. Veale addressed the second matter for the preliminary meeting of whether the Appeal is properly before the Board because the purported ground for the appeal is not a relevant factor for the Director to have considered in issuing the Approval. Section 87(5)(a)(i.2) gives this
Board the power to dismiss a notice of appeal if, for any other reason, the Board considers that the Notice of Appeal is not properly before it. Ms. Veale submitted that the director is not legally required to consider a municipal Approval arising from a Development Permit process or any other process under the Municipal Government Act[12] prior to issuing an Approval under the Act and corresponding regulations. Section 65(2) gives the director the discretionary power to issue an Approval subject to any terms and conditions the Director considers appropriate. Section 65(3) goes on to clarify that the terms and conditions of an Approval may be more stringent, but not less stringent, than the applicable terms and conditions provided for in the regulations. Section 65(4)(a) of the Act imposes a mandatory duty on the Director to consider, in addition to any criteria that the Director is required by the regulations to consider, any applicable written decision of the Energy and Utilities Board or the Natural Resources Conservation Board in respect of the subject matter of the Approval or registration. Ms. Veale noted that no place in either the Act or the applicable regulations[13] is there any requirement for the Director to consider whether a Development Permit has been issued or any other consideration under the Municipal Government Act. Because there is no requirement for the Director to consider these issues, there is no relevant basis for an Appeal to this Board and accordingly, the Board is authorized to, and should dismiss, the Appeal.
[21] The Board asked Ms. Veale about the references from the Guide for Pits (pages 1-4), raised by Mr. Bruinsma, that the Department normally will not issue an Approval under the Act until the municipality has resolved land use issues. Ms. Veale replied that the Guide for Pits is only a guideline and it is not a directive that the Director must wait for these issues to be resolved prior to issuing an Approval. Directives can only be found in the Act and the applicable regulations. When asked by the Board if there was anything which might bear on this situation not being "normal", Ms. Veale noted that the Development Permit had in fact been issued prior to the Director issuing the Approval.
[22] The Board asked Ms. Veale to respond to the argument raised by Mr. Bruinsma that the departmental guidance indicates that the Director should have waited until the land use issues were resolved by the municipality before issuing the Approval because, according to Mr. Bruinsma, by not waiting, the Director was then not in possession of all of the information that he should have been in order to issue an Approval. Ms. Veale reiterated that the Act and the appropriate regulations do not require the Director to consider issues arising with regard to the Development Permit. Notwithstanding the departmental guidance to normally wait until the issuance of the Development Permit, the decision to issue an Approval is entirely discretionary in these circumstances and it would be an error for the Board to allow an Appeal to be heard on the grounds that the Director exercised his discretion and decided not to wait until the Development Permit was issued in this case.
[23] Mr. Thomas referred the Board to the written submission on behalf of Inland Cement Limited submitted to the Board August 16, 1999. The written submission addressed both of the two issues raised for consideration at the preliminary meeting but Mr. Thomas invited the Board to review the submission on the second issue and confined his oral arguments to the first issue, that: pursuant to section 87(5) of the Act, the appeal is frivolous, vexatious or without merit. Mr. Thomas drew the Board's attention to a report of the City of Edmonton’s SDAB dated April 2, 1998 dealing with an appeal by Mr. Herman Bruinsma, agent for Ms. Martina and Mr. Carson Bruinsma, to overturn the Development Officer's decision to issue a Development Permit to Inland Cement Limited in late February 1998. The SDAB issued a decision[14] on April 15, 1998 allowing the appeal, in part, by varying the Development Permit with one additional condition: “A berm be constructed in stages along 184 Street to screen any extraction activity from 184 Street."
[24] The activity which was the subject of this Development Permit application was:[15] “to “[d]evelop a natural resource (clay extraction).” The site is “districted as IC (Industrial/Commercial District, Section 41, The County of Parkland No 31 Land Use Bylaw 19-79) of the City of Edmonton Land Use Bylaw.” The proposed use, “a Resource Extractive Industry, is listed as an additional use under Section 42(1) in addition to those Discretionary Uses in Section 41(1)(a) and (b) of The County of Parkland No 31 Land Use Bylaw 19-79 of the City of Edmonton Land Use Bylaw.”
[25] Even though it is not relevant to this decision, on May 4, 1998, Mr. Carson Bruinsma and Mr. Tony Dy-Reyes sought leave to appeal the SDAB decision to the Alberta Court of Appeal.[16] On May 7, 1998 Mr. Justice McClung adjourned the Leave Application sine die upon application of the City of Edmonton to prepare the record and notify SDAB hearing participants. On May 25, 1998 the Appellants sought an Interlocutory Injunction from the Alberta Court of Appeal to prevent Inland Cement Limited from developing the clay extraction until the Leave Application had been resolved.[17] Mr. Thomas noted that the Bruinsmas have taken no further steps in over a year to proceed with the application for leave to appeal the SDAB decision to the Alberta Court of Appeal.[18]
[26] Mr. Thomas expressed support for the position presented by Ms. Veale that the Director was under no obligation to wait until the issuance of Development Permit before issuing the Approval. If the Director had refused to issue an Approval on those grounds, Mr. Thomas noted that his client would likely be an appellant before the Board arguing that this was an improper basis for the Director to withhold an Approval.
DELIBERATIONS OF THE BOARD ON WHETHER THE APPEAL IS PROPERLY BEFORE THE BOARD
[27] The preliminary meeting was called for the purpose of dealing with the jurisdiction of the Board to hear the issues raised by the appellant and accordingly, whether or not the Board should proceed with consideration of this appeal. The matters raised concerning jurisdiction of the Board were:
1. Pursuant to section 87(5)(a)(i) of the Environmental Protection and Enhancement Act, is the appeal frivolous, vexatious or without merit?; and/or
2. Pursuant to the Environmental Protection and Enhancement Act, is the appeal properly before the Board because the purported ground of appeal is not a relevant factor for the Director to have considered in issuing the Approval.
[28] On the first matter, there are three possible grounds for the Board to dismiss the appeal, that is: (1) frivolous, (2) vexatious or (3) without merit. Counsel for the Approval Holder has referred the Board to two previous decisions[19] wherein the Board dismissed the appeals on various
grounds including that they were frivolous or vexatious. In both of the cases cited the issues raised by the Appellants were entirely unrelated to considerations that would be considerations for the Director in issuing the Approval. In addition, the Board found in both of these cases that the Appellants were not directly affected by the Approval that they were appealing. Counsel for both Inland Cement Limited and for the Director conceded the directly affected status of the Appellants at the preliminary meeting. The Appellants filed a statement of concern with the Department that the Director, so the Appellant's valid interest in the subject of the Approval is not in question. The grounds cited in the Notice of Appeal do relate primarily to the timing of the Director's decision but the Board finds, without ruling on the merits or the relevance of these grounds that there is no basis to conclude the appeal is frivolous.
[29] Counsel for Inland Cement Limited referred the Board to the definition of a "vexatious proceeding" from Black's Law Dictionary.[20] This definition relies upon reaching a determination about motivation of the Appellant. To find the appeal to be "vexatious" the Board would be looking for evidence that the Appellant was acting out of malice for the Approval Holder or the Department rather than any genuine concern for his/her valid interests that might be affected by the Approval. In this case the Board finds that the Appellants are acting out valid interests and the Board does not find evidence of malice towards Inland Cement Limited as the motivation for this appeal.
[30] The final element of the first matter for the Board to decide is whether the issue raised
by the Appellants is “without merit.” The primary grounds for judging merit in a preliminary manner relate to the relevance of the grounds cited by the Appellants to the decision that the Director made or could have made in issuing the Approval. The matter of relevance brings the Board to a consideration of the second matter raised for the preliminary meeting.
[31] The second matter for the Board to decide would require the Board to apply section 87(5)(a)(i.2) of the Act.[21] Considering whether the purported grounds for appeal are relevant falls within the parameters of this section.
[32] The Appellants' grounds for appeal[22] are stated in terms of the Director's decision being premature and thereby impinging on the due process for issuing the Development Permit of the City of Edmonton and on other Municipal Government Act processes such as the Servicing Concept Design Brief. Furthermore, the prematurity of the Director's decision was purported to have denied the Director access to relevant information from the development decision-making process. Accordingly, the time course of events was called into issue and was reviewed according to the record made available by the parties for the preliminary meeting. This is a brief chronological history:
December 22, 1997 Inland Cement Limited applied[23] for the Approval.
February 27, 1998 The Department wrote to the City of Edmonton[24] requesting a copy of any
Development Permit issued in relation to the Approval application or written confirmation if a Development Permit has not been issued or if one will not be issued at this time. This letter also solicited any concerns or questions that the City may have had by March 13, 1998.
March 4, 1998 Inland Cement Limited published notice[25] of their application for the Approval.
March 6, 1998 Mr. Herman Bruinsma, agent for Ms. Martina and Mr. Carson Bruinsma filed an appeal of the issuance of a Development Permit to Inland Cement with the SDAB of the City of Edmonton.
March 30, 1998 Mr. Antonio Dy-Reyes, acting as agent for Mr. Herman Bruinsma faxed a letter of objection[26] to the Director concerning the application for an Approval under the Act.
April 2, 1998 Mr. Herman Bruinsma and McCuaig Desrochers appeared before a meeting[27] of the SDAB of the City of Edmonton to speak to their appeal of the Development Permit.
April 15, 1998 The SDAB allowed the appeal in part by adding a condition that “A berm be constructed in stages along 184 Street to screen any extraction activity from 184 Street" to the conditions specified by the Development Officer in issuing the Development Permit in their Notice of Decision.[28]
April 17, 1998 Mr. George Teply, Environmental Engineer with the City of Edmonton wrote a letter[29] to Mr. G. H. Foy of the Department to express some comments and concerns about the Inland Cement Limited application beyond those that were considered in issuing a Development Permit to Inland Cement Limited.
April 30, 1998 Mr. Paul Johnson of Inland Cement Limited sent a letter[30] to Mr. Herman Bruinsma about his concerns and referred to a meeting held with Mr. Bruinsma on April 20, 1998 where these concerns were discussed.
May 4, 1998 Mr. Carson Bruinsma and Mr. Tony Dy-Reyes filed an application[31] to the Court of Appeal of Alberta for leave to appeal to the Court, the April 15, 1998 decision of the SDAB.
May 7, 1998 Mr. Justice McClung adjourned the Leave Application sine die upon application of the City of Edmonton to prepare the record and notify SDAB hearing participants.
May 22, 1998 Mr. Carson Bruinsma and Mr. Tony Dy-Reyes filed a further application[32] to the Court of Appeal of Alberta for an Interlocutory Injunction to prevent Inland Cement Limited from acting on its Development Permit while the application for leave to appeal was dealt with.
May 28, 1998 Before Justice Berger, the counsel for Inland Cement Limited advised that the Development Permit was suspended pursuant to sections 19.1(3) and 19.1(4) of City of Edmonton Land Use Bylaw No. 5996. Accordingly, Mr. Justice Berger ordered[33] an adjournment of both the Leave Application and the Injunction Application sine die.
August 21, 1998 Mr. J. Nagendran, Director of the Northeast Boreal Region wrote a letter[34] to Mr. K. Stuehmer of Inland Cement Limited to advise that expiry date of the existing Approval No. SG-36-91 was being extended to September 1, 1999 to complete the review of the application.
October 22, 1998 The City of Edmonton filed the Affidavit of Ms. Stella Chetek containing the
record of the SDAB hearing.
November 9, 1998 Mr. Dy-Reyes wrote to the counsel for the City requesting an opportunity to cross-examine Ms. Chetek on her Affidavit. Counsel for the City provided Mr. Dy-Reyes with a tape of the SDAB hearing so that the Leave applicants could confirm the accuracy of the record of the SDAB hearing.
February 4, 1999 Mr. K. Stuehmer of Inland Cement Limited wrote a letter[35] to Mr. G. Foy of the Department to advise of supplementary information with regard to their application in relation to the involvement of Canadian National on the site.
February 23, 1999 Mr. J. Nagendran, Director of the Northeast Boreal Region wrote a letter[36] to Mr. Bruinsma providing a draft copy of the Approval and inviting Mr. Bruinsma to advise of any terms and conditions by March 9, 1999.
March 6, 1999 Mr. Herman Bruinsma faxed a letter[37] replying to Mr. Nagendran indicating that the Department letter was post-marked March 3, 1999 and was not received until March 5, 1999 so that more time was requested for an opportunity to respond.
March 23, 1999 Mr. C. Bruinsma and Mr. Antonio Dy-Reyes faxed a letter[38] to Mr. J. Nagendran providing him with a copy of the Court of Appeal Order noting that the Development Permit was suspended but no other comments were made about any environmental issue in the draft Approval.
May 5, 1999 Mr. K. Singh, Designated Director under the Act issued Approval[39] No. 15484-01-00 to take effect September 2, 1999.
May 10, 1999 Ms. Ellen Petersen of the Department wrote a letter[40] to Mr. Herman Bruinsma to provide him with a copy of the Approval and to advise him of his possible right to appeal to the Environmental Appeal Board.
June 11, 1999 Mr. Carson Bruinsma and Ms. Martina Bruinsma filed a Notice of Appeal to the Environmental Appeal Board.
White it is not relevant to this decision, the Board notes that no further steps have been taken by the Appellants to proceed with the application for leave to appeal to the Alberta Court of Appeal.
[33] Counsel for the Director and counsel for the Approval Holder argued with considerable merit that there is no requirement under the Act or the applicable regulations that would require the Director to wait for a Development Permit to be issued or for any other planning matter under the Municipal Government Act to be completed before issuing an Approval. The Approval under the Act and the Development Permit process are clearly parallel processes. But the Director and the Approval Holder are requesting the Board to dismiss the Appeal without a hearing on the merits. While the Board agrees there is no requirement on the Director to wait for planning processes to be completed, the Board took note of the argument raised by the Appellant in making reference to the Department's Guide for Pits.[41] This departmental guidance document states that:[42] “Normally, the approval will not be issued until the local authority issues a Development Permit." This appears to suggest that, while the Director is clearly not obliged by the departmental guidance to wait until a Development Permit has been issued, it may “normally" be desirable for the Director to wait.
[34] The Board questioned Mr. Bruinsma extensively to determine anything tangible about environmental matters relevant to the Director's purview in issuing an Approval, that could have
become known to the Director by waiting longer than the year that the Director did wait, following the issuance of the Development Permit by the SDAB, before issuing the Approval. Significantly, Mr. Bruinsma was not able to provide the Board any matter that was not already known to the Director at May 5, 1999, beyond a general expression that more environmental issues would become known if Inland Cement Limited proceeded with its application for redistricting. Furthermore, the Board notes that Inland Cement Limited does not require this redistricting to proceed with its Development Permit, according to the minutes[43] of the SDAB hearing of April 2, 1998. Mr. Bruinsma failed to demonstrate to the Board how the timing of the Director's decision, as stated in the grounds for the Notice of Appeal, was relevant to the substance of the Director's decision.
[35] The Board finds that the “normal" guidance of the Department to the Director was satisfied in this case because the Development Permit was issued by the City of Edmonton and was reaffirmed with one additional condition by the SDAB fully one year before the Director issued the Approval. The City of Edmonton was invited to express any concerns with the Approval (which they responded to) more than one year prior the issuance of the Approval.
[36] The only grounds that the Appellant can offer to the Board that the Approval is "premature" is that the Director issued the Approval while the Development Permit was suspended, on strictly procedural grounds, awaiting the Appellants' action on a motion for leave to appeal the decision of the SDAB to the Alberta Court of Appeal. The Board was told by counsel for the Approval Holder, without dispute from the Appellant, that no action had been taken by the Appellants on this motion since November 1998. The Appellants provided the Board with no satisfactory explanation for this inaction. If the Appellants were primarily concerned with the Director having access to environmental information that would arise from resolving the appeal to the SDAB, it was within the Appellants' power to have proceeded with the motion for leave to appeal in order to initiate a judicial review of the Development Permit. The Appellant was afforded an opportunity prior to the Approval being issued to bring any other environmental concerns with the Approval to the Director's attention but chose only to put the Director on notice that the Development Permit had been suspended.
[37] The Board finds that the Appellants’ stated grounds of appeal are without merit and, in these circumstances, are without any relevance to the Director's decision to issue the Approval on May 5, 1999.
DECISION OF THE BOARD
[38] Pursuant to section 87(5)(a) of the Environmental Protection and Enhancement Act, the Board dismisses the Notice of Appeal.
Dated December 29, 1999, at Edmonton, Alberta.
“original signed by”
Dr. Steve E. Hrudey
“original signed by”
Dr. Ted W. Best
“original signed by”
Dr. John P. Ogilvie
[1] S.A. 1992, c.E-13.3.
[2] The ground for this appeal are:
This statement is made without prejudice to other proceedings. The premature approval of Application No. 00L 15484-01-00 impinges on the proper and due process of the Development Permit process of the City of Edmonton, and on other Municipal Government Act processes, such as a Servicing Concept Design Brief. The premature approval by the Director subjugates and would fail to consider information, decisions, restrictions and additional conditions that arise from the Development process. In a letter from the Head of the Regulatory Approvals Centre that accompanied the copy of Inland Cement Limited’s new approval, (encl. A1-1) it states “Please note that the Development Permit Process with the City of Edmonton and approval under the Environmental Protection and Enhancement Act can proceed concurrently.” Inland Cement has stated publicly of its intent to seek Redistricting (encl. A1-2). As of June 10, 1999, Inland Cement has submitted an Application for Redistricting to the City of Edmonton for the areas in the Approval. The Redistricting process can take up to 120 days (encl. A1-3, statement #2) and there is no guarantee of success (encl. A1-3, statement #9). In light of this, the Approval by the Director must be viewed an (sic) premature.
[3] RSA 80 c.P-9 (Rep. 1995 c24 s103 Eff. Sept 1/95).
[4] Section 87(2)(d) states:
87(2) Prior to conducting a hearing of an appeal the Board may in accordance with the regulations determine which matters included in notices of appeal properly before it will be included in the hearing of the appeal, and in making the determination the Board may consider the following: ...
(d) whether any new information will be presented to the Board that is relevant to the decision appealed from and was not available to the person who made the decision at the time the decision was made;...
[5] Superior Vet and Farm Supply v. Alberta (Director of Pollution Control) Alta Environmental App. Bd. (1997) 23 C.E.L.R. (N.S.) 193; Hayspur Aviation Ltd. V. Director of Pollution Control, Environmental Protection, (1997) 23 C.E.L.R. (N.S.) 177.
[6] 1. Pursuant to section 87(5)(a)(i) of the Environmental Protection and Enhancement Act, is the appeal frivolous, vexatious or without merit; and/or
2. Pursuant to section 87(5)(a)(i.2) if the Environmental Protection and Enhancement Act, is the appeal properly before the Board because the purported ground for appeal is not a relevant factor for the Director to have considered in issuing the Approval.
[7] Exhibit 1: Mr. Carson Bruinsma and Ms. Martina Bruinsma, List of Documents.
[8] Exhibit 2: Guide for Pits, Alberta Environmental Protection, December 1995.
[9] Approvals and Registrations Procedure, AR 113/93 with amendments up to and including AR 216/96, section 3(1)(s) states:
3(1) An application must be made to the Director and must be accompanied by the following information relative to the activity, the change to the activity or the proposed amendment, addition or deletion of the term or condition:
(s) any other information required by the Director, including information that is addressed in a standard, code of practice or guideline in respect of the activity that is published or adopted by the Department.
[10] Approvals and Registrations Procedure Regulation, AR 113/93 with amendments up to and including AR 216/96, section 4(1) states:
4(1) The Director shall not review an application for the purposes of making a decision until it is a complete application.
[11] Exhibit 2: Guide for Pits, Alberta Environmental Protection, December 1995.
[12] S.A. 1994, c.M-26.1.
[13] Approvals and Registrations Procedure Regulation, AR 113/93 with amendments up to and including AR 216/96.
[14] Written Submission of Inland Cement, Tab #2: Notice of Decision of the Subdivision and Development Appeal Board, April 15, 1998, Application No. 612787-001, File No. SDAB-D-98-058.
[15] Written Submission of Inland Cement, Tab #1: Minutes of Meeting No. 13/98, Subdivision and Development Appeal Board, April 2, 1998, File SDAB-D-98-058.
[16] Written Submission of Inland Cement, Tab #3: Notice of Motion, Court of Appeal of Alberta, Action #9803-0230-AC.
[17] Written Submission of Inland Cement, Tab #4: Notice of Motion, Court of Appeal of Alberta, Action No. 9803-0230AC.
[18] Mr. Thomas argued that there is no question of considerations of the Development Permit or redistricting bringing any further relevant environmental information before the Director because the Development Permit was issued by the City Development Officer in February 1998 and it was reissued by the SDAB in April 1998, more than one year before the Director issued the Approval. The Development Permit is suspended only because of the Bruinsma's application for leave to appeal to the Alberta Court of Appeal. If the Bruinsmas had important environmental issues to bring forward from the Development Permit approval process before the Director, they should have proceeded with their application for leave to appeal.
Mr. Thomas explained that Inland Cement Limited has not needed to act on the suspended Development Permit because it is able to continue operations under its existing Development Permit for clay extraction east of Kinokamau Lake. The Board asked whether Inland Cement Limited could go to the Alberta Court of Appeal and request dismissal of the Bruinsma's application for Leave to Appeal appeal because of their failure to act on it. Mr. Thomas indicated that the City of Edmonton would be in the best position to act in this regard. He expected whether either the City or Inland Cement Limited took such action, the Court of Appeal would most likely order the Bruinsmas to proceed with their action and that all of this would entail costs of all of the parties. Because there is currently no need for Inland Cement Limited to act on the suspended Development Permit, there is no need for Inland Cement Limited to take on those costs.
[19] Fred J. Wessley v. Director, Alberta Environmental Protection (February 2, 1994), No. 94-001 (E.A.B), and Lucey v. Director, Air and Water Approvals, Alberta Environmental Protection (April 11, 1996), No. 96-006 (E.A.B.).
[20] H.C. Black et al., Black’s Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990) defines “vexatious proceeding” as:
Proceeding instituted maliciously and without probable cause. Paramount Pictures v. Blumenthal, 256 App.Div. 756, 11 N.Y.S.2d 768, 772. Type of malicious prosecution differing principally because based on civil action exists when the party bringing proceeding is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result. Such a proceeding is often described as “frivolous and vexatious,” and the court may dismiss it on that ground. See Malicious prosecution.
[21] The Act states in section 87(5)(a)(i.2):
87(5) The Board
(a) may dismiss a notice of appeal if
(i.2) for any other reason the Board considers that the notice of appeal is not properly before it, ...
[22] Ibid, note 2.
[23] Document That is Subject of the Appeal, Tab #4: Inland Cement Ltd. Application to Amend and Renew Approval No. SG-36-91, December 1997.
[24] Document That is Subject of the Appeal, Tab #10: Letter from Tricia Platzner to Larry Benowski, City of Edmonton, February 27, 1998.
[25] Document That is Subject of the Appeal, Tab #14: Public notification, Edmonton Sun, Wednesday, March 4, 1998.
[26] Document That is Subject of the Appeal, Tab #21: Faxed letter of objection from Antonio Dy-Reyes, agent for Herman Bruinsma, dated March 30, 1998.
[27] Written Submission of Inland Cement, Tab #1: Minutes of Meeting No. 13, Subdivision and Development Appeal Board of the City of Edmonton, April 2, 1998.
[28] Written Submission of Inland Cement, Tab #2: Notice of Decision of the Subdivision and Development Appeal Board of the City of Edmonton, April 15, 1998.
[29] Document That is Subject of the Appeal, Tab #28: Letter from Mr. G. Teply of the City of Edmonton to Mr. G.H. Foy of Alberta Environmental Protection dated April 17, 1998.
[30] Document That is Subject of the Appeal, Tab #31:. Letter from Mr. Paul Johnson of Inland Cement Ltd. to Mr. Herman Bruinsma dated April 30, 1998.
[31] Written Submission of Inland Cement, Tab #3: Notice of Motion in the Court of Appeal of Alberta by Carson Bruinsma and Tony Dy-Reyes, May 4, 1998.
[32] Written Submission of Inland Cement, Tab #4: Notice of Motion in the Court of Appeal of Alberta by Carson Bruinsma and Tony Dy-Reyes, May 25, 1998.
[33] Written Submission of Inland Cement, Tab #5: Order of Mr. Justice R.L. Berger of the Court of Appeal of Alberta dated May 28, 1998.
[34] Document That is Subject of the Appeal, Tab #42: Letter from Mr. J. Nagendran, Director Northeast Boreal Region to Mr. K. Stuehmer of Inland Cement dated August 21, 1998.
[35] Document That is Subject of the Appeal, Tab #48: Letter from Mr. K. Stuehmer of Inland Cement to Mr. G. Foy of the Department dated February 4, 1999.
[36] Document That is Subject of the Appeal, Tab #51: Letter from Mr. J. Nagendran Director Northeast Boreal Region, Environment to Mr. H. Bruinsma with draft Approval dated February 23, 1999.
[37] Document That is Subject of the Appeal, Tab #52: Letter from Mr. H. Bruinsma to Mr. J. Nagendran dated March 6, 1999.
[38] Document That is Subject of the Appeal, Tab #54: Letter from Mr. C. Bruinsma and Mr. A. Dy-Reyes to Mr. J. Nagendran dated March 22, 1999.
[39] Document That is Subject of the Appeal, Tab #63: Approval Number 15484-01-00.
[40] Document That is Subject of the Appeal, Tab #64: Letter from Ms. E. Petersen to Mr. H. Bruinsma dated May 10, 1999.
[41] Exhibit 2: Guide for Pits, Alberta Environmental Protection, December 1995.
[42] Exhibit 2: Guide for Pits, Alberta Environmental Protection, December 1995, Section 2.2.1, Point 7, pages 1-9.
[43] Written Submission of Inland Cement, Tab #1: Minutes of Meeting 13/98, Thursday, April 2, 1998, Subdivision and Development Appeal Board of the City of Edmonton, page 3, states:
The proposed use, a Resource Extractive Industry, is listed as an additional use under Section 42(1) in addition to those Discretionary Uses in Section 41(1)(a) and (b) of The County of Parkland No 31 Land Use Bylaw 19-79 of the City of Edmonton Land Use Bylaw.