• P.N.D. Construction Ltd. v. Director, Environmental Management Act

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    Decision Date: May 3, 2022

    Panel: David Bird

    Keywords: Environmental Management Act – s. 6(2), 101, 115; Administrative Tribunals Act – s. 31(1); administrative penalty; preliminary decision; jurisdiction; appeal period; summary dismissal

    P.N.D. Construction Ltd. (“PND”) filed an appeal against a decision issued on September 29, 2021, by the Director, Environmental Management Act (the “Director”). The Director found that PND had contravened section 6(2) of the Environmental Management Act (the “Act”) by not having a permit for its facility that blends manure, wood chips, garden waste, and compost to produce topsoil. The Director imposed an administrative penalty of $10,000 against PND for the contravention.

    On November 17, 2021, the Board received PND’s notice of appeal against the Director’s decision. The notice of appeal was dated November 7, 2021. PND submitted that the Director’s decision was given to PND on November 6, 2021, when it was delivered by registered mail to PND’s corporate address.

    As a preliminary matter, the Board invited the parties to provide submissions on whether the appeal was filed within the 30-day appeal period, and, if not, whether the appeal should be summarily dismissed. Section 101 of the Act states that an appeal must be filed 30 days after notice of the decision is given. The Board has no discretion to extend the 30-day appeal period.

    The Board found that the Director sent the decision by email on September 29, 2021, to the email address PND’s representative had used to communicate with the Director and the Director’s staff before the Director issued the decision. The Board found that PND provided insufficient evidence to support its assertion that its representative did not receive the Director’s decision by email. The decision was sent to the email address that PND’s representative used regularly and consistently to communicate with the Director throughout the proceedings that led to the decision. PND’s representative also used that same email address to send the notice of appeal to the Board and to communicate with the Board. The Board concluded that it was more likely than not that PND’s representative received the email containing the decision on or about September 29, 2021. Therefore, the 30-day timeframe to appeal the decision ended on or about October 29, 2021.

    Given that the appeal was filed after that date, the Board summarily dismissed the appeal under sections 31(1)(a) and (b) of the Administrative Tribunals Act because it was filed out of time and the Board had no jurisdiction to hear the appeal.