Decision Date: June 21, 2001

Court: B.C.C.A., Ryan, J. Braidwood, J. Hall, J.

Cite: Vancouver Registry No. CA027576

Abdul Mousa and Barbara Aweryn (the “Appellants”) submitted an application to repair their septic system to the Environmental Health Officer (“EHO”). The EHO refused to issue them a permit. On appeal to the Board, the Board upheld the decision of the EHO on the basis that the proposed repairs would not protect the public health.

The Appellants then filed a petition with the British Columbia Supreme Court seeking various forms of relief under the Judicial Review Procedure Act. The Court upheld the decision of the Board and dismissed the Appellants’ petition.

The Appellants appealed the Supreme Court decision to the Court of Appeal on several grounds. They sought to adduce new evidence, and challenged several findings of fact made by the Board and accepted by the Supreme Court. They also submitted that the Board and the Supreme Court erred in law by failing to address the legality of a dye test conducted by the EHO, which led him to conclude that the system had failed, as there was no standard procedure for conducting such tests. The Appellants argued that that they should be permitted to operate the septic system as a “non-conforming use” system.

The Court of Appeal found that new evidence would make no difference to the outcome of the appeal before the Board, and that the findings of fact made by the Board were reasonable and supported by the evidence. The Court of Appeal also found that the Appellants failed to establish that the dye test used by the EHO was vague. The Court further held that there was no rationale to allow the Appellants to operate the septic system as a non-conforming use when its use would constitute a health hazard. The injunction order was upheld.

The appeal was dismissed.