Decision Date: October 2, 2014

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 34(3)(b); Environmental Management Act – s. 93(11); permit amendment; application for document disclosure; reasonable apprehension of bias

The Appellants applied to the Board for an order requiring Rio Tinto Alcan Inc. (“Rio Tinto”) to produce four categories of documents pursuant to section 34(3)(b) of the Administrative Tribunals Act (the “ATA”). The Appellants had appealed a decision amending a permit held by Rio Tinto. The permit authorizes the discharge of effluent, emissions, and waste from Rio Tinto’s aluminum smelter located in Kitimat, BC. The amendment allows, among other things, an increase in the maximum emissions of sulphur dioxide. The Appellants’ grounds for appeal included an allegation that the permit amendment is invalid due to a reasonable apprehension of bias, arising from the fact that Rio Tinto paid the salary of a person who advised the Director on Rio Tinto’s application to amend the permit. In the application for document disclosure, the Appellants argued that the requested documents were relevant to that allegation.

Rio Tinto opposed the application for document disclosure.

The Board applied the test for document disclosure set out in Seaspan ULC v. Domtar Inc. (Decision Nos. 2010-EMA-004(a), 005(a), 006(a) and 2011-EMA-003(a), issued June 11, 2013). That test is based on the language in section 34(3)(b) of the ATA. The key considerations in the test are: (1) whether it is reasonable to suppose that the requested documents may be relevant to proving or responding to an issue in the appeal, based on the issues raised in the applicant’s notice of appeal and (if available) statement of points; (2) whether the requested documents are admissible; and (3) whether the person being asked to disclose the documents has possession and control of the documents.

The Board considered the four categories of requested documents, and found that only one category met the test for disclosure. The Board ordered Rio Tinto to search for those documents, and if they were located, provide them to the Appellants by a specified date. If the documents were not in Rio Tinto’s possession or control, Rio Tinto was ordered to provide a reasonably detailed summary of its efforts to locate the documents.