• Patricia Rush; Norman W. Rush; Brookswood Fernridge Community Association; Frank P. Mueggenburg; IronGait Ventures Inc.; Randy Ryzak; and Catholic Independent Schools Vancouver Archdiocese v. District Director, Environmental Management Act

    Decision Date:
    File Numbers:
    Decision Numbers:
    2018-EMA-003(a) 2018-EMA-004(a) 2018-EMA-012(a) 2018-EMA-013(a) 2018-EMA-014(a) 2018-EMA-015(a) 2018-EMA-016(a)
    Third Party:
    Ebco Metal Finishing L.P., Third Party


    Decision Date: August 20, 2018

    Panel: Alan Andison

    Keywords: Environmental Management Act – ss. 100(1), 101, 133; preliminary decision; permit; air emissions; standing; jurisdiction; person aggrieved; limitation period; service of notice

    Thirteen individuals and organizations (collectively, the “Appellants”) filed separate appeals against a permit issued by the District Director, Environmental Management Act (the “District Director”), of the Greater Vancouver Regional District (“Metro Vancouver”). The permit authorizes Ebco Metal Finishing L.P. (“Ebco”) to discharge contaminants to the air from a zinc galvanizing facility located in Surrey, BC. The permit was issued under both the Greater Vancouver Regional District Air Quality Management Bylaw and the Environmental Management Act (the “Act”). In general, the Appellants raised concerns about the potential adverse impact of the facility’s air emissions on human health, animals, plants, and businesses surrounding the facility. Some of the Appellants also raised concerns about the emissions due to the facility’s proximity to an aquifer that supplies drinking water, a salmon-bearing creek, homes, a school, and land where a new school and housing is planned to be built.

    Ebco applied to the Board for dismissal of seven of the appeals. Ebco submitted that those appeals were outside of the Board’s jurisdiction, because the appeals were either filed after the expiry of the 30-day time limit specified in section 101 of the Environmental Management Act for commencing an appeal, or were not filed by a “person aggrieved” by the permit within the meaning of section 100(1) of the Environmental Management Act.

    Specifically, Ebco submitted that Metro Vancouver gave notice of the decision to issue the permit on March 28, 2018, and therefore, the 30-day appeal period ended on April 27, 2018. Ebco argued that the Board received five of the appeals after the Board’s office closed on April 27, 2018, and therefore, those appeals were outside of the Board’s jurisdiction. In addition, Ebco argued that three of the Appellants were not persons aggrieved, because they were located well outside of the area affected by emissions from the facility, and they had provided insufficient information to conclude that they were prejudicially affected by the permit.

    The Board noted that section 101 of the Environmental Management Act states that the time limit for filing an appeal is 30 days “after notice of the decision is given”. The Board interpreted this to mean that the 30-day appeal period begins on the date when the decision is first “given” to the person filing the appeal. In addition, based on the dictionary definition of “day”, the Board held that the final “day” in the 30-day appeal period ends at 11:59 pm on the 30th day, and not at 4:30 pm when the Board’s business hours end. Based on the evidence regarding when the five Appellants received, or likely received, notice of the permit, and when the Board received their notices of appeal, the Board concluded that only one of the appeals was filed outside of the 30-day appeal period, and the Board had no jurisdiction over that appeal.

    Regarding whether the Appellants were “persons aggrieved” by the permit, the Board applied the test set out in Gagne v. Sharpe, 2014 BCSC 2077: whether each appellant established on a prima facie basis that he or she had a genuine grievance because the permit prejudicially affected his or her specific interests. Based on the evidence, including Ebco’s modelling of the predicted dispersion of emissions from the facility, the Board concluded that the three Appellants’ specific interests in the environment and/or human health may, on a prima facie basis, be prejudicially affected by the emissions authorized under the permit. Accordingly, those Appellants had standing to appeal as “persons aggrieved” by the permit.

    Accordingly, one of the applications for dismissal was granted, and six of the applications for dismissal were denied.