2022 ABEAB 19                                                                                Appeal Nos. 20-055-065-ID1

ALBERTA ENVIRONMENTAL APPEALS BOARD   Decision

Date of Decision, May 20, 2022

 

 

 

IN THE MATTER OF sections 91, 92, and 95 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, and section 115 of the Water Act, R.S.A. 2000, c. W-3;

 

 

-and-

 

 

IN THE MATTER OF appeals filed by Jeffrey Buck, with respect to the decision of the Director, Compliance, Regulatory Assurance Division North, Alberta Environment and Parks, to issue EO-WA-35659-01, EPO-EPEA-35659-01, EPO-EPEA-35659-02, EPO-EPEA-35659-03, EPO-EPEA-35659-04, EPO-EPEA-35659-05, EPO-EPEA-35659-06, EPO-EPEA-35659-07, EPO-EPEA-35659-08, EPO-EPEA-35659-09, and EPO-EPEA-35659-10.

 

 

 

 

 

Cite as:            Buck v. Director, Compliance, Regulatory Assurance Division North, Alberta Environment and Parks, et al. (20 May 2022), Appeal Nos. 20-055-065-ID1 (A.E.A.B.), 2022 ABEAB 19.

 

 

 

Written PRELIMINARY MOTIONS Hearing BEFORE:		Ms. Meg Barker, Panel Chair.
Parties:
Appellant:		Mr. Jeffrey Buck, represented by Mr. Rehan Qureshi and Mr. Imran Qureshi, Ogilvie LLP.**
Director:		Ms. Heather Dent, Compliance Regulatory Assurance,  Alberta Environment and Parks; Ms. April Franks, Capital Compliance, Boreal North, Alberta Environment and Parks; and Mr. Nathan Polturak, Environmental Protection Officer, Compliance East, Alberta Environment and Parks, represented by Ms. Vivienne Ball, Alberta Justice and Solicitor General.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

**           The Appellant was initially represented by Ms. Keely Cameron of Bennett Jones LLP, who provided the Appellant’s written submissions to the Board.

EXECUTIVE SUMMARY

 

Alberta Environment and Parks Directors (AEP) issued ten environmental protection orders under the Environmental Protection and Enhancement Act (EPEA) and an enforcement order under the Water Act to JMB Crushing Systems Inc. and 2161889 Alberta Ltd. (JMB), JMB’s current and former corporate directors, including Mr. Jeffrey Buck (the Appellant) in his capacity as a former corporate director, and other involved individuals and corporations.  The environmental protection orders and enforcement order were related to sand and gravel operations at various locations in Alberta.

The Appellant appealed the Orders to the Environmental Appeals Board (the Board) by filing Notices of Appeal.  The Board noted eight of the Notices of Appeal were filed after the expiry of the seven-day time limit specified in EPEA and the Water Act, and requested the Appellant provide written reasons for the lateness and why the Board should extend the time period to file.  The Appellant provided his reasons, AEP responded, and the Appellant provided a rebuttal.  The Board considered the submissions and the legislation and determined the Appellant did not provide sufficient evidence to demonstrate extenuating circumstances prevented him from filing the Notices of Appeal on time. 

The Board dismissed the late-filed appeals Notices of Appeal (EAB 20-055-062).   

The Board also found three of the Notices of Appeal (EAB 20-063-065) were filed on time, within the seven-day time limit specified in EPEA and the Water Act.

 

 

TABLE OF CONTENTS

I.             Introduction............................................................................................................ 1

II.           Background.............................................................................................................. 4

III.         Issues............................................................................................................................. 6

IV.         Submissions................................................................................................................ 6

A.                Appellant........................................................................................................................................................ 6

B.                Director.......................................................................................................................................................... 7

C.                Appellant’s Rebuttal.................................................................................................................................... 9

V.           Analysis....................................................................................................................... 9

VI.         DECISION...................................................................................................................... 13

I.                                          Introduction

[1]                                       This is the Environmental Appeal Board’s (the “Board”) decision regarding Notices of Appeal filed by Mr. Jeffrey Buck (the “Appellant”) of ten environmental protection orders and an enforcement order (collectively, the “Orders”) issued by three Directors, Alberta Environment and Parks (“AEP”) (collectively, the “Directors”).  The Board found Notices of Appeal Nos. EAB 20-055-62 were filed late and the Appellant did not provide sufficient reasons for the Board to extend the time to file.  The Board found Notices of Appeal EAB Nos. 20-063-065 were filed within the legislated time period specified in EPEA and the Water Act.

[2]                                        The Orders are set out below:

EAB File No.	AEP Order No.	Date Issued by AEP	Date Appeal Filed by Appellant	Recipients
EAB 20-055	EO-WA-35659-01 (“EO-WA”)	March 12, 2021	March 31, 2021	Jeffrey Buck, former Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; 2161889 Alberta Ltd.; Byron Levkulich, former Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; Aaron Patsch, former Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; Lisa Ball, former Director of 2161889 Alberta Ltd.; 541466 Alberta Ltd., o/a JLG Ball Enterprises; Robert Beaverford
EAB 20-056	EPO-EPEA-35659-01 (“EPO 1”)	March 2, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-057	EPO-EPEA-35659-02 (“EPO 2”)	March 11, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-058	EPO-EPEA-35659-03 (“EPO 3”)	March 11, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-059	EPO-EPEA-35659-04 (“EPO 4”)	March 11, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-060	EPO-EPEA-35659-05 (“EPO 5”)	March 11, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-061	EPO-EPEA-35659-06 (“EPO 6”)	March 11, 2021	March 31, 2021	Jeffrey Buck, former Director of JMB Crushing Systems Inc.; JMB Crushing Systems Inc.; Byron Levkulich, Director of JMB Crushing Systems Inc.; Aaron Patsch, Director of JMB Crushing Systems Inc.
EAB 20-062	EPO-EPEA-35659-07 (“EPO 7”)	March 12, 2021	March 31, 2021	Jeffrey Buck, former Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; Byron Levkulich, Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; Aaron Patsch, Director of 2161889 Alberta Ltd., JMB Crushing Systems Inc.; Lisa Ball, former Director of 2161889 Alberta Ltd.; 541466 Alberta Ltd., o/a JLG Ball Enterprises; Robert Beaverford
EAB 20-063	EPO-EPEA-35659-08 (“EPO 8”)	Decision Dated March 19, 2021. Appellant informed by AEP via email on March 30, 2021	March 31, 2021	JMB Crushing Systems Inc., Byron Levkulich, Director, Aaron Patsch, Director,  Jeffrey Buck, former Director, JMB Crushing Systems Inc., George Shandro
EAB 20-064	EPO-EPEA-35659-09 (“EPO 9”)	Decision Dated March 19, 2021. Appellant informed by AEP via email on March 30, 2021	March 31, 2021	JMB Crushing Systems Inc., Byron Levkulich, Director, Aaron Patsch, Director,  Jeffrey Buck, former Director, JMB Crushing Systems Inc.
EAB 20-065	EPO-EPEA-35659-10 (“EPO 10”)	Decision Dated March 19, 2021. Appellant informed by AEP via email on March 30, 2021	March 31, 2021	JMB Crushing Systems Inc., Byron Levkulich, Director, Aaron Patsch, Director,  Jeffrey Buck, former Director, JMB Crushing Systems Inc.

 

[3]                                       The Directors issued the Orders to JMB Crushing Systems Inc. and 2161889 Alberta Ltd. (“JMB”), and individuals and corporations involved in JMB’s operations, including the Appellant in his role as a former director of JMB.  The Orders were related to various JMB sand and gravel operations in Alberta.  The Appellant objected to being named as a party to the Orders.

II.                                       Background

[4]                                       JMB Crushing Systems Inc. (“JMB”) operated multiple sand and gravel pits in Alberta.  The Appellant was a corporate director of JMB until June 23, 2020.   

[5]                                       On January 26, 2021, an Environmental Protection Officer from Alberta Environment and Parks (“AEP”) found that JMB had contravened provisions under the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (“EPEA”), and the Water Act, R.S.A. 2000, c. W-3, on several gravel pits, which prompted the Directors to issue the Orders between March 2, 2021, and May 3, 2021.  The Orders named current and former corporate directors of JMB, including the Appellant, and specified actions those named were required to undertake to become compliant with the legislation.

[6]                                       On March 31, 2021, the Appellant filed Notices of Appeal with the Board, appealing his inclusion as a party to the Orders. 

[7]                                       On April 12, 2021, the Board acknowledged receipt of the Appellant’s Notices of Appeal.  The Board noted the normal time limit for filing an appeal of an environmental protection order and an enforcement order was seven days after the Appellant was served and eight of the Notices of Appeal appeared to have been filed outside the time limit.  The Board requested the Appellant provide reasons why the Notices of Appeals were filed late.  The Appellant submitted his reasons to the Board on April 20, 2021, and requested the Board find his circumstances were significantly exceptional to extend the period to file the Notices of Appeal.^[1]

[8]                                       On April 29, 2021, the Board wrote to the Appellant and the Director to advise there was sufficient information provided by the Appellant for the Board to consider extending the time period to file the Notices of Appeal.  However, prior to making a final decision regarding whether or not to extend the time period, the Board requested the Director provide response comments and the Appellant provide a rebuttal submission.  The Board received written comments from the Director on May 7, 2021, and the Appellant on May 14, 2021.    

[9]                                       On March 31, 2021, April 30, 2021, and May 5, 2021, the Appellant filed Notices of Appeal with the Board appealing his inclusion as a party to amendments to the Orders.  The Board will address those Notices of Appeal in a separate decision. 

[10]                                   On June 9, 2021, the Board wrote to the Appellant and advised the Notices of Appeal for EO-WA (EAB 20-055) and EPO 7 (EAB 20-062) were late and were dismissed with reasons to be provided.  The Board considered the remaining Notices of Appeal for the Orders and dismissed EAB 20-056-061 (EPO 1, EPO 2, EPO 3, EPO 4, EPO 5, and EPO 6) for being filed past the legislated time period. The Board found Notices of Appeal EAB Nos. 20-063-065 (EPO 8, EPO 9, and EPO 10) were filed on time.

III.                                   Issues

[11]                                   The Board set the following issue for this preliminary matter: Should the Board extend the appeal period for the Appellant’s late-filed Notices of Appeal?

IV.                                    Submissions

A.                                        Appellant

[12]                                   The Appellant submitted the COVID-19 pandemic, combined with the Appellant’s illness from Polymyalgia Rheumatica,^[2] were exceptional circumstances that prevented him from giving his full attention to his mail and the Orders. 

[13]                                   The Appellant acknowledged he was served with the Orders, however, he asserted the papers he received did not include the statutory provisions that indicated a seven-day appeal deadline existed.  The Appellant submitted it would be unfair to expect him to meet the deadline when he did not have the statutory guidelines available with the Orders.^[3]

[14]                                   The Appellant argued AEP would not be prejudiced by a Board decision to allow the appeals to proceed, as the other parties named in the Orders are well-situated to address the concerns raised by the Director.  The Appellant noted that as he was no longer employed with JMB, he was not a permit holder, and could not take any of the actions outlined in the Orders.  Failure to allow the appeals to proceed would result in prejudice to the Appellant, as he had no ability to access the sites or conduct the work required to comply with the Orders.  The Appellant concluded that the balance of convenience weighed in his favour, given the significant consequences he faced if he continued to be named a party in the Orders.^[4]

B.                                         Director

[15]                                   The Director referred to the Affidavits of the attending Environmental Protection Officer (the “Officer”), sworn on May 4, 2021.  The Officer stated in their affidavit that they prepared EPO 2, EPO 3, EPO 4, EPO 5, and EPO 6, for service on the Appellant.  The Officer stated they placed a copy of each order, along with one copy of section 91 of EPEA into an envelope, which was mailed to the Appellant.^[5]  The Director said each of the Orders contained all the information the Appellant needed to review the legislation and determine the filing deadline.  The contact information for the Board was also provided.

[16]                                   The Director submitted the Appellant had not met the onus to demonstrate exceptional circumstances existed that prevented him from filing Notices of Appeal on time.  The Director stated that the Appellant did not provide evidence to establish:

“•       the nature of his medical condition and diagnosis beyond naming it,

•                     the severity or physical, mental or cognitive limitations, if any, caused by his medical condition,

•                     what a ‘normal applicant’ is and how his medical condition relieves the Appellant from ‘the standard of a normal applicant’,

•                     when and how the Appellant’s ‘access to medical care [was] compromised’,

•                     how he was struggling to address his medical condition, or

•                     how these factors either individually or in combination prevented him from filing the eight notices of appeal by the statutory deadlines or obtaining legal advice before March 29, 2021.”^[6]

[17]                                   The Director noted that on March 3, 2021, the Appellant drove after an AEP Environmental Protection Officer who had attempted to serve EPO 1 on the
Appellant at the Appellant’s residence, but had left when the Appellant had not answered the door.  The officer stated the Appellant drove up to the officer’s vehicle and the officer was able to serve the Appellant with EPO 1.  The Director stated that later the same day, the Appellant phoned AEP, acknowledged service of EPO 1, and asked questions regarding the order.^[7] 

[18]                                   The Director stated the “balance of convenience” was irrelevant to the statutory deadline for filing Notices of Appeals with the Board, and it did not constitute extenuating circumstances for the Board to extend the deadline.  The Director stated:

“Had the Appellant anticipated that his medical condition would prevent him from taking appropriate action in response to receiving the orders, it would have been a prudent measure for him to have contacted one of the Directors, the Inspectors or the Board to ask about the statutory deadline or the availability of an extension or any other concerns he might have had.”^[8]

[19]                                   The Director submitted the Appellant had not provided evidence to establish how the COVID 19 pandemic impacted his ability to contact AEP or the Board to obtain more information or prevented him from obtaining legal advice before March 29, 2021, or prevented him from filing the Notices of Appeal on time.^[9]

[20]                                   The Director stated the involvement of other parties in the Orders was irrelevant to the statutory deadline for filing the Notices of Appeal and did not constitute extenuating circumstances.  The Director argued that accepting the late Notices of Appeal without extenuating circumstances prevented AEP from taking enforcement action for non-compliance and prejudiced the other named parties that did not appeal the Orders “… as it unfairly shields the Appellant from carrying out the terms of the orders or share in the payment of the cost of doing so until these late appeals are resolved, despite not appealing by the statutory deadline.”^[10]

[21]                                   The Director requested the Board dismiss each of the Notices of Appeal that were filed late.

C.                                         Appellant’s Rebuttal

[22]                                   In the Appellant’s rebuttal submission, the Appellant submitted he was frequently bedridden with pain in March 2021 due to the effects of Polymyalgia Rheumatica, which also impacted his memory and ability to concentrate.^[11]  The Appellant noted only one of the Orders was delivered by hand, and the others were sent by registered mail, however, Canada Post did not require signatures for the registered letters, and the Appellant did not know when the Orders were delivered.  The Appellant stated he was focused primarily on his health and recovery, and this delayed his ability to focus on the “… deluge of orders being sent to him during March….”^[12]

[23]                                   The Appellant said ordering him to complete activities when he was no longer a director of JMB and had no legal authorization to do any of the work placed an unfair burden on him and did nothing to protect the environment. 

[24]                                   The Appellant submitted his medical condition, the numerous Orders, and the COVID 19 pandemic all amounted to extraordinary circumstances which the Board should consider in extending the deadline for filing the Notices of Appeal. 

V.                                       Analysis

[25]                                   After reviewing the party’s submissions, the Board has determined eight of the appeals must be dismissed based on two grounds:

(a)        the Appellant did not meet the legislated time limits for filing the Notices of Appeal; and

(b)        the Appellant failed to provide sufficient reasons for the Board to grant an extension of time.

[26]                                   Section 116(1) of the Water Act provides a time period for filing an appeal of an enforcement order of not later than seven days after notice of the enforcement order is received or last provision of notice of the decision.  The Board may, on application under section 116(2), extend the time period for filing a notice of appeal if the Board is of the opinion there are sufficient grounds to do so.  Sections 116(1)(a)(i) and (2) of the Water Act state:

“(1)      A notice of appeal must be submitted to the Environmental Appeals Board

(a)        not later than 7 days after

(i)        receipt of a copy of a water management order or enforcement order…

(2)       The Environmental Appeals Board may, on application made before or after the expiry of the period referred to in subsection (1), extend that period, if the Board is of the opinion that there are sufficient grounds to do so.”

[27]                                   Sections 91(4)(a) and 93 of EPEA have similar wording:

“91(4)  A notice of appeal must be submitted to the Board

(a)        not later than 7 days after receipt of a copy of the enforcement order or the environmental protection order…

93        The Board may, before or after the expiry of the prescribed time, advance or extend the time prescribed in this Part or the regulations for the doing of anything where the Board is of the opinion that there are sufficient grounds for doing so.”

[28]                                   The legislation has a strict time limit of seven days to submit a Notice of Appeal, however, both EPEA and the Water Act provide the Board with some flexibility to allow for late-filed appeals in certain situations.  The Board uses this authority only in exceptional circumstances.  The legislation included time limits for filing an appeal to provide a level of certainty to the appeal process and to balance the interests of the parties.  The Board will not exercise its discretion to extend the time limit unless an appellant can demonstrate there were exceptional circumstances that caused the Notice of Appeal to be filed late.^[13]  

[29]                                   The onus is on the Appellant to show that extenuating or special circumstances existed that prevented him from filing the Notices of Appeals within the legislated timeframe.^[14]  The Appellant indicated the COVID-19 pandemic and his medical condition combined to create the exceptional circumstances that prevented the filing of the Notices of Appeal on time.  While the Board is not bound by the formal rules of evidence that bind the courts, there must be a factual basis for its decisions.  The Board finds that the Appellant did not provide sufficient evidence that the pandemic and the Appellant’s medical condition were exceptional circumstances that would justify the Board extending the time period to file a Notice of Appeal.  

[30]                                   The Appellant did not explain how the pandemic hindered the timely filing of the Notices of Appeal.  When the Appellant was served with the Notices of Appeal, the pandemic had been in effect in Alberta for approximately one year.  After initial closures in 2020, law offices were open and functioning in March 2021.  The Appellant could have contacted legal counsel within seven days of being served and received advice on how to proceed, but instead did not contact legal counsel until March 29, 2021.  

[31]                                   If the Appellant had concerns about being named in the Orders, the Board would expect he would contact the Director upon being served with the Orders.  The Appellant could also have contacted the Board to obtain information about appealing the Orders, but did not do so.  The Board finds the Appellant did not meet the onus of demonstrating that the pandemic prevented him from filing the Notices of Appeal on time.  

[32]                                   The Appellant stated his focus on his medical condition and the pain and discomfort it caused resulted in a delay in taking action once he was served with the Orders.  The Appellant’s assertion of his medical condition was not supported by any evidence of diagnosis or symptoms, nor any information to explain how his health challenges prevented him from contacting the Directors or the Board to get further information regarding the appeal process or deadlines.  The Board notes the Appellant was capable of driving a vehicle to follow the inspector who served the first enforcement order, and that he was able to phone the inspector to confirm receipt of the Order and to request that additional orders be mailed to his home address.  While the Board is sympathetic to the Appellant’s health complications, there was insufficient evidence presented for the Board to consider how the medical condition impacted the Appellant’s ability to file the Notices of Appeal on time.  Without such evidence, the Board finds the Appellant did not meet the onus to demonstrate his medical condition was an exceptional circumstance that would cause the Board to extend the time to file.  

[33]                                     The Appellant stated there was no information in the documents served on him that indicated how long he had to appeal the Orders.  However, the Directors provided the Affidavit of the attending Officer, sworn on May 4, 2021, in which the Officer stated five orders were prepared for service on the Appellant and one copy of section 91 of EPEA was included in the envelope with the Orders.  In addition, the Board notes that each of the Orders included wording in bolded font stating the Water Act provides the right to appeal to the Board and that strict deadlines may apply.  The Board further notes that the first Order which was hand delivered to the Appellant on March 3, 2021, included a copy of Section 91 of EPEA.

[34]                                   The Appellant confirmed receiving the EPO 1 on May 3, 2021 and explained to the AEP inspector that, if further Orders were to be served, he preferred they be mailed to his home address.  The Board interprets this to mean that the Appellant was anticipating the possibility that further orders would be issued to him.

 

[35]                                   Three Notices of Appeal for EAB Nos. 20-063-065 were filed on March 31, 2021, one day after they were received by the appellant via email from AEP.  The Board notes the date of decision of each of these Orders was March 19, 2021, but the Appellant was not informed by AEP until March 30, 2021, via email.  The Board therefore finds these three Notices of Appeal were filed within the legislated 7 day time limit.

VI.                                    DECISION

[36]                                   The Board finds the Notices of Appeal for EAB Nos. 20-055-062 were filed outside the legislated time period, and the Appellant did not provide sufficient evidence of extenuating circumstances that prevented him from filing the appeals on time.  The Board also finds that sufficient notice was provided to the Appellant regarding the right of appeal to the Board and that strict timelines may apply.  Therefore, the Board will not extend the appeal period, and the following appeals are dismissed:

•                     EAB 20-055, appeal of EO-WA-35659-01;

•                     EAB 20-056, appeal of EPO-EPEA-35659-01;

•                     EAB 20-057, appeal of EPO-EPEA-35659-02;

•                     EAB 20-058, appeal of EPO-EPEA-35659-03;

•                     EAB 20-059, appeal of EPO-EPEA-35659-04;

•                     EAB 20-060, appeal of EPO-EPEA-35659-05;

•                     EAB 20-061, appeal of EPO-EPEA-35659-06; and

•                     EAB 20-062, appeal of EPO-EPEA-35659-07.

[37]                                   The Board finds the Notices of Appeal for the following Orders were filed within the legislated time period and may proceed with their appeals:

 

•                     EAB 20-063, appeal of EPO-EPEA-35659-08;

•                     EAB 20-064, appeal of EPO-EPEA-35659-09; and

•                     EAB 20-065, appeal of EPO-EPEA-35659-10.

 

Dated on May 20, 2022, at Edmonton, Alberta.

 

 

 

“original signed by”

Meg Barker

Acting Board Chair