The Appellant appealed a letter issued by the Director of Waste Management addressed to both the Appellant and the Province.
The Director and the Province argued that the Board did not have jurisdiction over the appeal on the grounds that the letter did not contain an appealable decision.
The Appellant submitted that the letter contained two appealable decisions. First, the Appellant argued that the Director’s reference to continuing to suspend naming additional responsible persons and to postpone making a determination on whether adjacent properties were contaminated, constituted a decision. Second, the Appellant argued that the letter imposed additional requirements for the Appellant to carry out site investigation work on lands not owned by the Appellant, and not included in any remediation order, agreement, or notification of independent remediation.
The Panel found that the meaning of “decision” in section 43 is exhaustive. Therefore a decision must fall under one of the categories listed under section 43 in order to be appealable. Here, the Panel found that the Director’s reference to suspending naming additional responsible persons, and to postponing a determination on the contamination of adjacent property did not constitute a “decision” within the meaning of section 43. In particular, the Panel adopted the Board’s reasoning in Canadian National Railway Company v. Regional Waste Manager (Appeal No. 2001-WAS-025) that the failure or refusal to “exercise a power” is not an appealable decision.
Secondly, the Panel found that the letter’s reference to additional requirements for remediation on the adjacent site were not legally binding statements and were akin to “a warning letter.” The Panel further found that the requirements were actually directed at the Province, not at the Appellant, and that they were merely statements acting as notification of the Director’s expectations concerning remediation on the adjacent site.
The Panel found that the letter did not contain an appealable decision. Accordingly, the appeal was dismissed on the basis that the Board had no jurisdiction