• Woodland Heights Investments Ltd. v. Director, Environmental Management Act

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    Decision Date: July 24, 2020

    Panel: Teresa Salamone

    Keywords: Environmental Management Act – s. 115; Administrative Penalties (Environmental Management Act) Regulation – ss. 7, 12(5); contravention; permit; administrative penalty; sewage treatment system

    Woodland Heights Investments Ltd. (“Woodland Heights”) appealed a determination of contravention and administrative penalty issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”).

    Woodland Heights owns a mobile home park in Thornhill, British Columbia (the “Mobile Home Park”). The Mobile Home Park has 51 lots which are served by a sewage treatment system that includes a series of septic tanks and two septic fields. Operation of the septic system is authorized by a permit issued under the Environmental Management Act (the “Act”). The permit contains numerous conditions including requirements to inspect the system regularly and maintain it good working order, and ensure that no untreated sewage is discharged.

    In 2015 and 2016, in response to complaints, Northern Health staff inspected the Mobile Home Park. During one inspection, staff noted sewage around a blow out pipe, and a strong sewage smell. During the other inspection, they noted a sewage smell, sewage ponding at lot #1B, and a culvert full of sewage. Northern Health sent records of the inspections to the Ministry.

    In January 2017, the Ministry issued a warning letter stating that Woodland Heights was out of compliance with the permit. However, this warning letter was not delivered to Woodland Heights.

    In April and July 2017, Woodland Heights replaced two lift station pumps, and notified the Ministry.

    In June 2017, the Ministry inspected the Mobile Home Park, and noted a sewage smell and sewage on the ground around a blow out pipe near lot #1B.

    In September 2017, the Ministry issued another warning letter stating that Woodland Heights was out of compliance with the permit. The letter directed Woodland Heights to immediately correct the non-compliance, and to notify the Ministry within 30 days advising what corrective measures were being taken. The letter was delivered, but Woodland Heights did not respond.

    In June 2018, the Ministry again inspected the Mobile Home Park. They identified sewage overflowing from the blow out pipe near lot #1B, and raw sewage surrounding the pipe. The next day, a plumber cleared a blockage at the blow out pipe.

    Based on the June 2018 inspection, the Ministry drafted an Administrative Penalty Referral Report stating that the Ministry was considering imposing an administrative penalty for non-compliance with the permit. The report was delivered to Woodland Heights.

    In July 2019, the Ministry drafted a Notice Prior to the Determination of Administrative Penalty stating that the Ministry was considering imposing a $26,000 penalty for two contraventions of the permit based on the events from September 2017 to October 2018. The notice offered Woodland Heights an opportunity to respond within 30 days of receipt of the notice. The notice was delivered in September 2019.

    In October 2019, Woodland Heights drafted a response (the “Response Letter”) to the notice, but the Director did not receive the Response Letter.

    In January 2020, the Director issued the determination and imposed a $26,000 penalty.
    Woodland Heights appealed the determination. Woodland Heights acknowledged that the contraventions had occurred, but it asked the Board to rescind or reduce the penalties.

    The Board considered the parties’ submissions and evidence, the Director’s rationale for the penalty, the factors in section 7 of the Administrative Penalties (Environmental Management Act) Regulation, and the maximum penalty for contravening a permit. The Board disagreed with some of the Director’s findings regarding the penalty amount. Contrary to the Director’s findings, the Board found that Woodland Heights received no economic benefit from the contraventions, and that the contraventions were not deliberate. The Board reduced the amounts for those factors. The Board also disagreed with the Director’s finding that there was no evidence of ongoing maintenance of the sewage system, but agreed that a lack of meaningful inspections contributed to repeated releases from the blow out pipe near lot #1B. The Board reduced the amount for the repeated nature of the contraventions.

    In addition, the Board found that the Director had not considered Woodland Heights’ Response Letter and information about the system upgrades done in 2017. Based on that information, the Board found that Woodland Heights had made efforts to upgrade the system in response to malfunctions, and the Board reduced the penalty based on the efforts to correct the contraventions and to prevent reoccurrence of the contraventions.

    In conclusion, the Board varied the administrative penalty by reducing it. The appeal was allowed, in part.