Date: 19980514 Docket: 9703-0595 AC
IN THE COURT OF APPEAL OF ALBERTA THE COURT: THE HONOURABLE MADAM JUSTICE C.M. CONRAD THE HONOURABLE MADAM JUSTICE A.H. RUSSELL THE HONOURABLE MR. NSTICE A.B. SULATYCKY BETWEEN: CHARLIE CI~ALIPOUX Respondent (Applicant)
~~ ENVIRONMENT APPEAL BOARD (ALBERTA) and -
CHEM-SECURITY (ALBERTA)L TD. Appellant (Parry Directly Affected)
APPEAL FROM THE HONOURABLE MR. JUSTICE W,E. WILSON MEMORANDUM OF JYJDGMENT
Not a Party to the Appeal (Respondent)
$. J. ROTH For the Appellant
R. C. SECORD and K.E. BUSS For the Respondent
A. C. L. SIMS, Q.C. For the Environment Appeal Board
MEMORANDUM OF JUDGMENT ~. ~ 1: [1] This is an appeal from an order quashing an interlocutory decision of the Environmental Appeal Board (the Board) on the grounds that the Board lost jurisdiction for its failure to provide procedural fairness or natural justice. [2] We conclude that, the chambers judge made no reversible error and we dismiss the appeal. Background (3] Chem-Security (Alberta) Ltd. (Chem-Security) operates a hazardous waste plant, the Alberta Special Waste Treaanent Centre .( ASWTC) near the Town of Swan Hilis, Alberta. [4] Charlie Chalifoux is an elected Headman of the Swan River First Nation and was found by the Board to be representative of the aboriginal persons who hunt, fish, and trap in the Swan Hills, and to be directly affected by the operations of the ASWTG. (5] In 1992, the Natural Resources Conservation Board issued a decision approving a major expansion of the ASWTC to burn PCBs and other ha2ardous waste. That approval was subsequently extended to include importation and disposal of PCB and other hazardous waste from outside of Alberta. In 1995 Chem-Security was issued a ten year approval by Alberta Environmental Protection (AEP) for its operation. [6j In December 1995, the Lesser Slave Lake Indian Regional Council and others fil N ed otices of Objection (appeal) to the Director's decision to grant the operating approva T l. hat appeal related to the terms, conditions, and requirements of the approval in its
Page: 2 entirety. In particular the grounds of appeal related to the alleged inadequate regulation and protection of the environment of the hazardous waste facility, identifying as potential problems the fugitive emissions of PCBs and other volatiles, emergency vent stack emissions and other sources of the release of chemicals into the environment. A preliminary hearing was held in which the Board determined that only the issues of PCB fugitive emissions and off- site discharge of surface water would be the subject of the appeal to the Board. An application for judicial review of the decision was dismissed and that dismissal was upheld by this court.
[7] A hearing was eventually scheduled for June and then adjourned to September at the request of the Respondent Chalifoux. On July 24, 1997 the Respondent applied to the Board for a reconsideration of its decision concerning the scope of the hearing. The application set out a brief summary of the facts and argument upon which he wished to rely. The application alleged that significant new evidence has been discovered since the preliminary determination of issues. It is clear that the application did not contain all of the detail of the newly discovered facts.
[8j On July 25, 1997 Chem-Security wrote to the Board and requested procedural direction from the Board as to how it intended to deal with the review application. On ]uly 30, 1497 the Board wrote to AEP and Chem-Security inviting a response to the review and variance application.
[9J On August 1, 1997 Chem-Security and AEP filed their respective responses. Those responses did not touch upon the new evidence. Rather, they made submissions on how they wished the Board to deal with the new application of the Respondent. Without providing an opportunity to reply to those responses, or to expand upon his application (as it was obvious he intended), the Board by letter dated August 6, 1997 denied the review
and variance application and confirmed that the hearing would be restricted to the two issues that it had identified in its earlier decision.
Judicial Review [IOJ An application for judicial review was made to the Court of Queen's Bench. 1'he chambers judge found that there was procedural unfairness. He refused to determine the
Page: 3 scope and procedure they should have followed, but he was satisfied that the way they did proceed was unfair in that he was not afforded an opportunity to reply to the submissions made by Chem-Security.
Grounds of Appeal [11] The Appellant Chem-Security argues that the chambers judge erred as follows: 1. He erred in holding that the Respondent had not been allowed "an opportunity to put forth his case on the request that had been filed with the Board."
2. He erred in holding that it was unfair not to have given the Respondent an opportunity to reply to the submissions of AEP and Chem-Security.
Decision [ 12] Decisions of the Board are given privative protection by s.92.2 of the Environnnental Protection and Enhancement Act S.A. 1992 Chapter E-13.3. The standard of review varies, depending upon whether the impugned decision is within or beyond the tribunal's jurisdiction. The standard varies from that of correctness and to that of patent unreasonableness. At the reasonableness end of the spectrum are those cases where a tribunal protected by a we privative clause is deciding matters within their jurisdiction, and where there is no right of appeal. At the correctness end of the spectrum are those cases where the issues concern the interpretarion of a provision limiting the tribunal's jurisdiction or where there is a statutory right of appeal allowing for substitution of the tribunal's opinion and where the expertise of the Board is no greater than that of the reviewing tribunal. (See; Pezim v. British Columbia (Superintendent of Brokers)[ 1994]
2 S.C.R.557)
13] The court takes a pragmatic and functional appzoach to determining what constitutes jurisdictional error.( See Canadian Broadcasting Corporation v. Canada (Labour Relations Board)[ 1995) 1 S.C.R. 157.
Page: 4 [14] When determining whether there has been unfairness or procedural failures going to natural justice it is necessary to examine the nature of the problem before the tribunal. The question is what amounts to procedural fairness or fair appearance in the circumstances, having regard to the legislative aid decision making context.
[15] AEP argues that there is a contextual difference between making a decision in the first instance and a request to invoke a discretionary power to reconsider that same
decision.
(16] However, it is important to understand the facts of this case. In this case the application for review relied on some extensive and allegedly compelling new information that had been discovered since the original decision. This was not merely a request co reconsider a previous decision on the basis of the record, but a request for reconsideration on the basis of new facts that appeared to confirm the potential dangers of the operations at ASWTC. Viewing the factual context, this administrative decision deals with toxic substances with potentially dangerous consequences, and is brought by the persons who could be subject to any such harm.
[17] When viewing the issue of fairness, it is significant to note that prior to the Board's request for a response, Chem-Security had written for advice as to how the Board intended to proceed with the application. There was no direct response to that request. Rather, the Board wrote to Chem-Security and AEP giving them an opportunity to comment on the application. The comments challenged the basis of the Respondent's application. The Respondent was never given an opportunity to reply to that fundamental challengc.
[18] The legislation requires the Board to follow the principles of natural justice. The Respondent was denied an opportunity to put forth his case on the request that had been filed with the Board or to reply to the submissions of Chem-Security and AEP before the
decision was made. In our view, the chambers judge was correct in concluding that there
was unfairness in the circumstances of this case.
APPEAL HEARD ON MAY 8, 1998 JUDGMENT DATED at Edmonton, Alberta this 14w Day of May A.D. 199$
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Page: 5
Action Number: 9703-0595 AC IN THE COURT OF APPEAL OF ALBERTA BETWEEN:
and -ENVIRONMENT APPEAL BOARD (ALBERTA) Not a Party to the Appeal (Respondent)
- and -CHEM-SECURITY (ALBERTA} LTD. Appellant (Party Directly Affected) MEMORANDUM OF JUDGMENT OF THE COURT G~S7~'~9 Q ~►~~D
~►a~ 1 41998 m~ P
G~~ ~~ A pPea~ ~~
A.D. 1998 CHARLIE CHALIF~UX Respondent (Applicant)
IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICrAI DISTRICT ~F EDMONTON IN THE MATTER OF SECTIQN 87 OF THE E E N l - I A N CE M F N 7 ~ I C T , S. A . 1 99 2, ch.E-13.3, AS AMENDED; fN 7HE MATTER OF APPEAL NO. 95-025 BEFORE B O A R D;AN f~ IN THE MATTER OF A DECfSION OF THE CNVIRONM~N AU G U ST 6 ~ ]99 7 . Between: CHARLIE CHALtFQUX - and
ENVIRQNM~NTAI. APPEAL BOARD (Alberta) Before the Honourable Justice ) W.E W . i l s o n , in C h ambers ) a w L C o u r t s B uilding, in the City of ) Edmonton, in the Province of Alberta ) O itDER UPON THE APPLICATION of Charlie Chalifoux fo d eci s i o o n f t h e R e s p o n d ent, Environmental Appeal Board dat e d A u g u s t 6 , 1 9 9 7 w i th respect to Appeal Na. 95-025; AND UPON 1~AVING heard Counsel C o u n sel f a r t h e D i r e c t o r of C hemicals Assessment P r o t e c t i o n , C o u n s e l f o r C hem-Security (Alberta) Ltd. e n v i r o n m e n t a l Ap p e a l B oard;
NV I R O N M E N 7 A C P R O ! ' ~C T I O A N N D T H E E NVIRONMENTAL APPEAL T AL A P P E AL GUARD DATED Applicant
Respondent On T h u r sd a y the 2 n dda y o f Oc tobe r , 1 4 9 7 . r a n O r der s e t t i ng asid e l l ie ( n l b e r i a) a s sei o u t i n ilett t s er f o r the Ap pl i c a nt , C h a r l C i : e h a l ifvux , and Man a g e i n c ~ n t , A l be r e ta n v i r o nmenta l , a n d c o u n s e l for the Re s p o n dent ,
-z -IT IS HEREBY ORDERED AND ADJUDGED 7HAT: 1. The decision of the Environmental nppeal Qoard A u gust 6 , 19 9 7 i s h e r e by quashed and set aside; and 2. Costs are not awarded. ,~.,,1.'I~,~ ~.c.c~.~.A. E T~~ED this /` .day of t c',~~ r , 1997. .\ N r Clerk o '~o rt `'
APPRQVED AS TO FORM AND CONTENT: ACKROYD, PIAS7A, ROTH &DAY Per: Solicitors for Charlie Chalifoux
WiTTEN BINDER Per: Solicitors for the Direc of Chemical~Assessment~ Management, Alberta Environmental ~tection MINER F~NERTY Per: Solicitors for Chem-Security (Alberta) Ltd.
CQOK DUKE COX Per: Solicitors for the CnvirUnmentai Appeal Roard
as s e t out i n its l e tt e r of 1~ , , ~
-z -IT IS HEREBY ORDERED AND ADJUDGED THAT: 1. The decision of the Environmental Appeal Board as set oui Augus t 6, ]9 97 i s h e r e h y quashed and set aside; and 2. Costs are not awarded. EN7EREb this day of 1997.
Clerk of the Court APPROVED AS 70 FORM AND CONTENT: ACKROYD, PIAS7A, ROTH & D Per: Solicitors for arlie Ch I' oux WITTEN BINDER Per: Solicitors for the Director of Chemical Assessments and Management, Alberta Environmental Protection MILN~R FE Per: So eitors o em-Security (Alberta) Ltd.
COOK DUKE COX Per: Solicitors for the Cnvironmenlal Appeal Board
i n it s l e tt e r of J.C.Q.B.A.
-z -IT IS HEREBY ORDERED AND ADJUDGED Tf-fAT: 1. "f he decision of the Environmenta u g A u s t 6 , 1 9 97 is h e r e b y q u ash e d and sit aside; and z. Costs are not awarded. ENTCR~D this day of 1997.
Clerk of the Court APPROVED AS TO CORM ANn CpNT~NT: ACKROYD, PIASTA, R4TH &DAY Per: Solicitors for Charlie Chalifoux
WITTEN BINDER Per: Solicitors for the fJirector of Chemical Assessments and Management, Alberta Environmental Protection MILNEa FENERTY Per: Solicitors for Chem-Security (Alberta) Ltd.
COOK DU E COX Per: Solicitors for the L-nvir nmentai Appeal Board
l A p p eal B o a rd a s se i o u t in i t s le t t er of
Action No. ~J703-151(32 ~. IN THE COURT OF QUEEN`S BENCH OF ALBEaTA ~UDICIAI DISTRICT OF EDMONTON IN THE MAT7~R OF SCC:TION 87 ~F THE ENVIRONMENTAL PROTCCTION AND ENHANCEMENT ACT, S.A. 1992, ch.~-]3 .3, AS AMCNDCD; IN TF~E MATTER OF APPEAL NO. 95-025 BEFORE THE ENVIRONMENTAL APPEAL BOARD; AND IN THE MATTER OF A DECISION 4F THE ENVIRONMENTAL APPEAL BOARD DATED AUGUST 6, 1997. Between: CHARLIE (:HALIFOUX Applicant
- and -ENVIRONMENTAL APPAL BOARD (Alberta) Respondent
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