Mark de Goutiere and Cynara de Goutiere v. Environmental Appeal Board and Albaco Industries

File Number:
BCJ 2513  

Decision Date: November 21, 1995

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

Cite: Victoria Registry No. 95131

The petitioner applied for judicial review of a decision of the Board under the Health Act upholding the issuance of a permit to construct a sewage treatment facility adjacent to the petitioner’s property. The Board found that the permit was issued in accordance with the requirements of the Health Act and its Regulations.

The Court held that the appropriate standard of review to be applied in respect of the Board’s decision was to be determined in relation to the questions decided by the board. The Court adopted a functional or pragmatic approach and examined the expertise of the Board and its members; the purpose of the statute creating the Board; the nature of the problem before the Board; and the wording of the enactment conferring jurisdiction on the Board.

The Court found that the Board possessed special expertise with respect to environmental issues brought before it and therefore decisions requiring the Board’s special expertise should not be interfered with unless patently unreasonable. The test of patent unreasonableness does not extend, however, to decisions of the Board with respect to issues not within the Board’s particular area of a expertise. Where the decision of the Board is based on its interpretation of the language of the statute and that interpretation does not require special expertise then that decision may be reviewed on a standard of correctness.

The Court held that, as recognized in the decision of the Board, there was a lack of procedural fairness on the part of the Environmental Health Officer. However, the Court was satisfied that this was cured by the full hearing before the Board.

The Court held that the Board’s decision that the permit complied with the Act and Regulations was clearly within the special expertise of the Board and was not patently unreasonable. However, the Court found that the Board erred in its decision that the proximity of the well to the proposed septic field was not a relevant matter to be considered in determining whether the permit should have been issued. Therefore, the Court concluded that the decision by the Board that the permit was validly issued was not only incorrect but patently unreasonable. Accordingly, the decision of the Board was set aside and the permit quashed.