Decision Date: January 24, 2006

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 42, 99,100 and 101; Roster of Professional Experts, appealable decision, statutory time limit.

Steve Graham appealed the determination by the Director of Waste Management (the “Director”), Ministry of Environment, refusing to process Mr. Graham’s application to write Roster examinations to establish his qualification to be appointed to the Roster of Professional Experts under section 42 of the Environmental Management Act (the “Act”).

Mr. Graham requested that the Board reverse the Director’s decision and direct the Director to use previous determinations and calculations in establishing Mr. Graham’s work experience. Mr. Graham also asked the Board to order that the Director recommend approval for the examination within one week if the eligible experience is reasonably close to the required seven years.

The Director submitted that the limitation period for filing an appeal had expired and that, consequently, Mr. Graham’s appeal should not be heard. In addition, the Director submitted that his determination on Mr. Graham’s Roster-qualifying experience was not an appealable “decision”, as defined by section 99 of the Act. Accordingly, the Director submitted that the appeal should be rejected on the basis that it is out of time and relates to matters beyond the jurisdiction of the Board under the Act.

The Board noted that the time limit for filing an appeal under section 101 of the Act is “30 days after notice of the decision is given.” The Board found that Mr. Graham received actual notice of the Director’s determinations on August 25, 2005.  Therefore, Mr. Graham’s Notice of Appeal should have been filed by September 26, 2005. However, Mr. Graham’s appeal was not commenced until October 19, 2005. Therefore, the Board found that it had no jurisdiction to hear this appeal, as the Notice of Appeal was filed after the statutory appeal period had expired.

The Board also considered if any or all of the determinations by the Director constituted a “decision” which may be appealed to the Board under the Act. The Board found that the Director’s determination did not involve the exercise of a power, but rather, the refusal to exercise the power to add Mr. Graham to the Roster. The Panel found that the failure or refusal to “exercise a power” is not an appealable “decision” as defined under the Act.

Accordingly, the appeal was dismissed for lack of jurisdiction.