Decision Date: September 22, 2008

Court: BCSC, Wedge J.

Cite: 2008 BCSC 1251

The District Director of the Greater Vancouver Regional District (“GVRD”) applied to the Supreme Court of British Columbia for a judicial review of the decision of the Environmental Appeal Board (the “Board”) in Darvonda Nurseries Ltd. v. District Director of the Greater Vancouver Regional District, Decision No. 2006-EMA-007(a), dated July 27, 2007.

The District Director had issued a permit to Darvonda that authorized air emissions from Darvonda’s greenhouse facilities located in the GVRD.  The permit was issued under both the Environmental Management Act (the “Act”) and GVRD Air Quality Bylaw No. 937, 1999 (the “Bylaw”).  Darvonda appealed the permit to the Board on the basis that the permit unlawfully imposed emission standards that were more restrictive than those in the Code of Agricultural Practice for Waste Management (the “Code”) set out in the provincial Agricultural Waste Control Regulation (the “Regulation”).

The Board found that the Bylaw does not conflict with the Regulation because it is possible for agricultural operations to comply with both the Bylaw and the Regulation.  However, the Board found that the District Director exceeded his authority in issuing the permit, because the permit imposed certain emission standards that are more restrictive than those in the Regulation.  The Board held that the Code within the Regulation sets province-wide limits for particulate matter, opacity and odour content for emissions from wood-fired boilers used in agricultural operations.  The Board found that the permit issued by the GVRD was without effect to the extent that it purported to regulate matters that are regulated by the Regulation.

The Board also found that Darvonda’s greenhouses are heated primarily to encourage plant growth and propagation, and not “solely for the purpose of comfort” as contemplated under section 6(5)(k) of the Act.  Therefore, section 6(5)(k) does not apply to exempt the Darvonda’s emissions from regulation under the Act.

The District Director requested that the Court set aside the Board’s decision, and restore the permit.

The Court first considered the standard of review that applied to the Board’s decision.  The Court applied the test set out in Dunsmuir v. New Brunswick, 2008 SCC 9, and found that the standard of correctness applies when reviewing pure questions of law; namely, the Board’s conclusions regarding the interpretation of the Act and related legislation, and the effect of that legislation on the District Director’s authority.  The Court concluded that the standard of reasonableness applies when reviewing questions of mixed fact and law; namely, the Board’s conclusion regarding whether the greenhouses are heated solely for the purpose of comfort.

Turning to the legislation, the Court found that the Board erred in law regarding the District Director’s authority to issue the permit.  The Court found that section 31 of the Act empowers the GVRD to perform all regulatory aspects of air quality management within the GVRD, and that the GVRD may regulate air emissions within its boundaries differently than the Province regulates air emissions elsewhere.  The Court held that the legislature contemplated overlap between GVRD bylaws and province-wide regulations, and section 37 of the Act authorizes the GVRD to regulate air quality within its boundaries in a manner that is inconsistent with provincial regulations of general application.  The District Director was entitled to issue the permit because the Bylaw requires operators to obtain a permit to discharge air contaminants in the GVRD.

The Court agreed with the Board that the Bylaw does not conflict with the Regulation.  However, the Court found that the Board erred by not applying the conflict resolution provisions in section 37 of the Act to determine whether the permit conflicts with the Regulation.  The Court applied section 37 and concluded that the permit does not conflict with the Regulation.  Although the permit imposes more restrictive emission standards than the Regulation, dual compliance with the permit and the Regulation is possible.

Finally, the Court found that the Board’s conclusions regarding comfort heating were reasonable and should be upheld.

The Court restored that the permit, and set aside the Board’s conclusion that the District Director had exceeded his jurisdiction.