Decision Date: September 4, 2015

Court: B.C.S.C., Justice Ehrcke

Citation: 2015 BCSC 1592

Unifor Local 2301 (“Unifor”) sought a judicial review of a decision issued by the Environmental Appeal Board (the “Board”). The Board’s decision concerned whether the approval of an environmental effects monitoring plan (the “Plan”) by the Director, Environmental Management Act (the “Director”), Ministry of Environment, was an appealable “decision” as defined in section 99 of the Environmental Management Act (the “Act”). The Plan applied to emissions from an aluminum smelter operated by Rio Tinto Alcan Inc. (“Rio Tinto”) in Kitimat, BC. Unifor is a union that represents the smelter’s workers and retired workers, many of whom live in the Kitimat area.

Rio Tinto was required to prepare the Plan, and implement it once approved, under a condition in a permit amendment that the Director had issued in 2013. That amendment applied to Rio Tinto’s permit authorizing emissions from the smelter. In addition to requiring the Plan, the amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. The amendment was already the subject of appeals filed by two Kitimat residents, Elisabeth Stannus and Emily Toews. Those appeals had not yet been heard by the Board. Unifor did not appeal the amendment.

In November 2014, Ms. Stannus, Ms. Toews, and Unifor filed separate appeals against the approval of the Plan. Before accepting those appeals, the Board requested submissions from the parties regarding whether the approval of the Plan was an appealable “decision” as defined by section 99 of the Act, and whether the Appellants were “persons aggrieved” by the Plan under section 100(1) of the Act.

In December 2014, the Board found that the Director’s approval of the Plan was not an appealable “decision” as defined by section 99 of the Act (Emily Toews, Elisabeth Stannus, and Unifor Local 2301 v. Director, Environmental Management Act (Decision No. 2014-EMA-003(a), 004(a), 005(a), December 4, 2014)). Applying the principles of statutory interpretation, the Board found that the approval of the Plan did not fall within the ambit of any of the appealable matters listed in section 99. The Board also found that policy considerations supported a finding that the approval of the Plan was not appealable. Specifically, the Board found that concerns about the adequacy of the Plan had already been raised in the appeals against the amendment. The Board also noted that the Plan did not change the amount or type of emissions allowed under Rio Tinto’s permit, and that allowing an appeal of every monitoring plan or further study required by a permit or permit amendment would allow parties to circumvent the 30-day period for appealing a permit or permit amendment.

Given the Board’s finding that the approval of the Plan was not appealable, it was unnecessary to decide whether the Appellants were “persons aggrieved” by the Plan. The appeals were rejected.

Unifor sought a judicial review of the Board’s decision by the BC Supreme Court. Unifor argued that the Board: (1) took an unjustifiable approach to the “staged” decision-making process that was used by the Director; (2), took an overly technical approach to the meaning of “decision” in section 99 of the Act; and (3), relied on an irrelevant consideration, namely, that appeals of the amendment had already been filed by Ms. Toews and Ms. Stannus.

First, the Court addressed the standard of review that applied to the Board’s decision. The Court found that the judicial review was concerned with the Board’s interpretation of the Act, which is its “home statute”, and therefore, according to recent decisions form the Supreme Court of Canada, the Court should presume that the appropriate standard of review is “reasonableness”. This meant that the question was whether the Board’s interpretation of the definition of “decision” in section 99 of the Act fell outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

The Court found that the Board’s interpretation of the definition of “decision” in section 99 of the Act was unreasonable. The Court held that the approval of the Plan ought to have been considered part of a two-stage decision-making process involving Rio Tinto’s permit amendment application. The Court concluded that the approval of the Plan was part of the Director’s amendment decision, and therefore, the approval of the Plan was appealable as a “decision” under one of the subsections of section 99 of the Act. The Court did not specify which subsection within section 99 applied. The Court also found that it is unreasonable to require someone to commence an appeal of a decision before the full content of that decision is known, which, in this case, was when the contents of the approved Plan were known. Finally, the Court held that the existence of appeals against the amendment was irrelevant to the question of whether the Board had jurisdiction to hear Unifor’s appeal against the Plan.

Accordingly, the Court set aside the Board’s decision as it pertained to Unifor, and remitted the matter back to the Board for reconsideration in accordance with the Court’s reasons.