Fred Olson v. James Walker et al

File Number:
BCJ 1579

Decision Date: August 18, 1989

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

Cite: Duncan Registry No. 2286

In Olson, the issue in the judicial review was whether the Board could substitute its discretion for that of the Director of the Wildlife Branch of the Ministry of Environment, Lands and Parks.

The issue before the Board was whether Mr. Olson was entitled to an elk quota permit under the Wildlife Act for 1985. His application was previously refused by the Deputy Director. The Board found that Mr. Olson was entitled to an elk quota permit, but could not remedy the refusal since the hearing was held in 1986. Therefore, the Board made an order that the Director issue any future elk quotas in the region on a basis fair and equitable to all guide outfitters. It also made a number of recommendations to be met to fulfil this directive. In addition, the Board directed the Director to place Mr. Olson’s name at the head of the list of Guide Outfitters eligible to apply for elk quota permits in 1986.

The Board’s appeal powers under the Wildlife Act provide as follows:

103. (1) Where the regional manager makes a decision that affects

(a) a licence, permit, registration of a trapline or guide outfitter’s certificate held by a person, or

(b) an application by a person for anything referred to in paragraph (a),

the person may appeal the decision of the regional manager to the director.

(3) Where the director

(c) makes another decision that affects a matter referred to in subsection (1), the person aggrieved by the decision may appeal the decision of the director to the Environmental Appeal Board.

(5) In an appeal, the Environmental Appeal Board may

(a) dismiss the appeal, or

(b) send the matter back to the regional manager or director with directions.

The Board’s powers on appeal under s. 103 (5) were limited to dismissing the appeal or sending the matter back to the Regional Manager or Director with directions. The Court held that these powers did not include the power to substitute its opinion for that of the Director where his decision was reached in the lawful exercise of his discretion. The Court noted that the Board possessed relevant expertise and that the court should not intervene in decisions of the Board without giving respect and serious regard to their views. Nonetheless, the Court found that in arriving at its decision on Mr. Olsson’s appeal, the Board’s effectively substituted its opinion for the opinion of the Director. Moreover, the Board varied the decision of the Director without finding an improper exercise of discretion. It also rendered a decision which purported to revamp Branch policy regarding elk quota permits. The Court held that the Board was given the task of ensuring that officers of the Wildlife Branch made decisions fairly, not the power to alter the general policies of the Branch. In doing all of these things, the Court held that the Board exceeded its jurisdiction. Finally, in the absence of a privative clause protecting the decisions of the Board in its parent legislation, an error of law was deemed sufficient to invalidate its decision.