Decision Date: July 9, 1996

Court: S.C.B.C., Romilly, J.

Cite: Duncan Registry No. S4915

Mountain Pacific Investments Ltd. applied to the Ministry of Health for a permit to install an experimental sewage disposal system under the Health Act. The Environmental Health Officer rejected the application. Mountain Pacific appealed to the Board. The Board reversed the Environmental Health Officer’s decision and granted the permit. The Ministry of Health sought judicial review of the Board’s decision on the grounds that the Board exceeded its jurisdiction by failing to address the question it was required to address under the legislation, namely, whether the proposed system contravened the Act and Regulation. Alternatively, the Ministry of Health maintained that the Board made an incorrect or patently unreasonable finding in concluding that the ultimate use of the proposed sewage disposal system would not contravene the Act and Regulation.

The Court found that the Board did not exceed its jurisdiction. The Board was specifically created to address technical environmental considerations and possessed expertise in environmental matters for this purpose. The Court held that the Board was operating squarely within its statutory jurisdiction to review the discretion of the Environmental Health Officer in rejecting a sewage disposal permit. The Board did not ask itself the wrong question as the ultimate requirement of the legislation was to ensure that permits issued under the Health Act contained conditions to safeguard public health. The Court held that the Board addressed this requirement in issuing the permit. The Board was not required to be absolutely certain that the proposed sewage disposal system would function without any risk of harm before issuing a permit because this would be an impossible standard to meet. The Board only had to be satisfied that the installation and ultimate use of the system would not contravene the Act or the Regulation, but not to the degree of absolute certainty.

On the second ground, the Court found that the decision of the Board was clearly within its jurisdiction and therefore could only be interfered with if patently unreasonable. The Court held that this was not the case and that this ground for review by the petitioner was nothing but a disguised attempt at an appeal of the decision of the Board. Accordingly, the application was dismissed.