Frequently Asked Questions
The information below is brief and general. More detailed information can be found in the Board’s Rules and Practice and Procedure Manual. You may also wish to refer to the Board’s Information Sheets for more detailed explanations of the information below.
Yes. Although the EAB is established by and answerable to the Cabinet in British Columbia, it is independent of the Ministries and agencies that make decisions that might be appealed to it. This ensures that appeals are conducted by an independent and fair manner. Because the EAB is not part of the decision-making body, it does not have any information about the decision unless that is provided by a party to the appeal. This includes any documents considered by the original decision-maker or any follow-up documents.
No, although parties to appeal may use lawyers or other representatives to act as a spokesperson if they wish.
The EAB will review the Notice of Appeal for any obvious concerns about the appellant’s ability to file the appeal. Examples of concerns are that the decision is not appealable to the EAB, the appellant does not have the authority to appeal the decision in question, the appeal was not filed before an applicable deadline, or that the outcome requested by the appellant is not within the authority of the EAB to grant.
If the EAB identifies any obvious concerns, it will describe those concerns to the appellant, and give the appellant the chance to clarify facts or argue that the appeal should proceed. After a complete Notice of Appeal is received, even if the EAB dismisses the appeal on a preliminary basis, the EAB is unable to return the filing fee.
If the EAB concludes that there are no obvious concerns that have not been addressed, it notifies the decision-maker whose decision has been appealed. The EAB will ask the decision-maker to identify any potentially affected third parties so that the EAB can invite them to participate in the appeal, if appropriate.
It depends. If the decision under appeal is an administrative penalty imposed under the Environmental Management Act, the Integrated Pest Management Act, the Mines Act or the Water Sustainability Act, the penalty is automatically “stayed” when an appeal is filed. A stay prevents the decision from taking effect until after the appeal is decided.
All other decisions that are appealed remain effective while the appeal is underway, unless the EAB orders a stay. The EAB has the power to stay appealed decisions made under all statutes except the Mines Act and the Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act.
If a party wants a stay, they have to apply for one. The other parties to the appeal will have a chance to respond. A stay is not ordered in every case. The test the EAB will apply in deciding whether to stay a decision is described in the Practice and Procedure Manual and in an Information Sheet.
Those who appeal a decision and the person who made the decision have the right to participate as parties to the appeal. Parties have full rights to participate in the appeal process, including rights to present evidence, argue for a particular outcome, decide whether to allow the appeal to be settled without an appeal, and make preliminary applications (such as for stays or other preliminary relief that the EAB can provide).
The EAB may also recognize certain people or organizations as Third Parties. Third Parties have all the same rights an appellant or respondent does, and are recognized where the appeal is likely to have a direct, significant impact on them. For example, those who are the subject of an appealed decision, or whose rights are likely to be to be directly, significantly impacted by the outcome of the appeal, may be granted status as a Third Party.
The EAB may also recognize participants or interveners. They have some, but not all rights of a party, and may be involved with an appeal where the Board considers that they have valuable information or a valuable perspective on the subject of the appeal, or where they face significant, direct impact from the decision under appeal. Often, participants and interveners are given the opportunity to make submissions (arguments about what the Board should do with the appeal and why). Less often, they may be allowed to call evidence or even to cross-examine witnesses in the appeal. The Board determines the level of participation on a case-by-case basis.
The Chair of the Board assigns panels to various appeals. Panels are made up of one or three members. In the case of three members, the appeal may be decided by a two-thirds majority of panel members. Sometimes, the Chair is, or is on, a panel. When assigning appeals to members, the Chair considers various factors, including the expertise required by the appeals and the availability of members to act as, or form part of, a panel in any given case.
Hearings are likely to be held in writing where there are no significant factual disputes, significant issues of credibility, and where the appeal process can still be fair if it is held through written submissions. Otherwise, hearings will take place in a live format, where statements are made and evidence is presented to the panel that will decide the appeal. This is called an oral hearing, and may be done by videoconferencing or in person, depending on the particulars of the case and the needs of the parties.
If an in-person hearing is held, it is usually held in the area where the appeal arose. The parties can ask for the hearing to take place elsewhere, however.
If you would like to change the date of a hearing or a deadline, such as when written submissions are due on an appeal, you should write to the Board once you know of this need. Explain why you need the date of the hearing or deadline changed, and advise to when you would like the hearing or deadline moved. The Board will consider all the relevant circumstances and decide whether to grant your request.
As part of its ordinary process, the Board will typically have the Respondent (the one who made the decision under appeal) provide the record of their decision. This includes the decision letter and documents reviewed in order to make the decision. There may be other information that a party, participant, or intervener in an appeal wants, however.
The first step is to ask for the information to be provided voluntarily. In many cases, this could resolve the issue, as all information to be submitted as evidence must be provided to the other parties, participants, and interveners. If the person with possession or control of the “document or other thing” refuses, the requesting person can ask the Board for an order requiring that the “document or other thing” be provided. For more information, please consult Section 10 of the Board’s Practice and Procedure Manual.
While some parties choose to request information from public bodies through the Freedom of Information and Protection of Privacy Act, the Board does not recommend doing so. Applications under that act are based on a separate legal framework and may not provide all information that could be available through an order by the Board.
Please note, the Board cannot order a person to grant access to property to another person.
If someone misses a submission deadline or the oral hearing, the Board writes to them and asks them to explain what happened. The Board will consider the circumstances, including whether the person could have provided advance notice, whether the circumstances did not allow for the person to reasonably meet the deadline or attend the hearing date scheduled, and the impact on the appeal process and (other) parties. The Board may retroactively adjust the date of the deadline or hearing, continue the appeal with or without further input from that person, or dismiss the appeal.
A member of the Board can only discuss an appeal with a party, participant, or intervener in the appeal if all parties, participants, and interveners are included in the discussion. The Board’s Rules require that anyone involved in an appeal who writes to the Board must copy the parties, participants and interveners on anything sent. If they forget to do so and the Board is aware of it, the Board will remind them and share the correspondence between the parties, participants, and interveners.
After a decision is issued, the panel cannot clarify or otherwise address their decision, other than in writing, to amend the decision, to correct a clerical or typographical error; an accidental or inadvertent error, omission, or other mistake; or an arithmetical error made in a computation. Otherwise, the decision must “speak for itself” and anyone wishing to change the decision will need to seek judicial review by the Supreme Court of British Columbia, or seek to have the Lieutenant Governor in Council (Cabinet) vary or rescind the decision.
Yes, you can withdraw your appeal by advising the EAB in writing that you wish to do so. If you have settled your dispute and you want to have enforceable settlement terms, you may wish to apply for the EAB to issue a consent order, which sets out the terms of the settlement, at the same time.
Whether the appeal is heard by way of written submissions or a live hearing, you will need to provide all information you want the EAB to consider, including documents, diagrams, pictures, letters of support, etc. In a live hearing, witnesses can describe their experiences and understanding to the panel. In written submissions, this information is provided in written statements or affidavits. Do not assume that someone else will provide something, or that the panel will know something already. The EAB relies on the parties to provide information relevant to an appeal; it does not seek evidence on its own.
Yes, for the most part. All evidence will need to be exchanged before the hearing takes place. First, the EAB will ensure that all parties are satisfied that they have, or at least have had the opportunity to ask for, all relevant information that the EAB could order to be disclosed. Then, the EAB will ensure that any expert evidence is shared between the parties, before they are expected to submit evidence and make arguments to the EAB.
In the case of an oral hearing, the parties and interveners will provide a Statement of Points, which is a summary of the evidence they will rely on and the arguments they will make in the hearing in advance, so that the other parties and interveners can prepare. Generally, the appellant’s Statement of Points must be provided 30 days before a hearing begins, and other parties’ Statements of Points must be provided 15 days beforehand. The EAB will confirm the timeframes that apply in any given case, however.
Each party makes an opening statement, to describe the issue(s) under appeal and what they think the EAB should do about it. They will outline the case they intend to make and the shortcomings they see in the cases to be argued by the opposition. Next, the parties present their evidence by submitting documents and having witnesses testify. The parties have the opportunity to ask questions of one another’s witnesses, through cross-examination. Finally, the parties provide closing statements, where they summarize the case, the evidence from their perspective, and try to persuade the EAB how it should decide the appeal.
The usual order of presentation is the appellant(s) first, then the respondent, then third parties. Participants and interveners tend to be placed in order, depending on whether they oppose or support the decision that has been appealed.
Yes, you are responsible for scheduling any witnesses you intend to bring at the hearing. They may need to be flexible in scheduling, as witness’ testimony usually takes longer or shorter than the predicted time, despite best efforts. It is wise to approach your witnesses as soon as possible to begin organizing schedules.
If a witness is unable to attend an in-person hearing, the EAB may authorize them to give their evidence by telephone or video conferencing technology. To ask the EAB to consider this, you will need to explain why the witness cannot reasonably be expected to attend in person, discuss the importance of this witness to the case you intend to raise, and explain why there are no other witnesses who could attend the hearing and provide substantially similar evidence. the EAB will ask for the positions of all parties (and any participants or interveners allows to cross-examine witnesses) and decide whether and how to grant the request.
Yes; no party has exclusive rights to any particular witness. Before asking the employee or agent, however, you should check with the respondent whether that person will be called as a witness for the respondent. If so, you (and any other parties able to cross-examine) will have the chance to ask that employee or agent questions during the hearing.
You can ask the EAB for an order requiring someone to attend a hearing and give evidence as a witness. If you get such an order, you must ensure the witness-to-be gets a copy of the order and to pay applicable fees to the witness-to-be (unless the EAB waives that requirement in your case). The EAB will, if possible, invite the proposed witness to submit an argument on the issue. If they did not have the chance to do so, they can ask the EAB to rescind or “vacate” the order if they believe they have no relevant evidence to offer or if attending the hearing would be a hardship for them.
You can ask the EAB for an order requiring someone to provide you with documents that are relevant to the appeal. The EAB will give the person or organization that owns or possesses the documents in question the opportunity to comment on the order requested.
In order for a witness to provide an opinion on something beyond the everyday education, training or experience of everyday people—on matters beyond estimating age, distance or speed; describing emotional states of others, the physical well-being of people or things, or the value of things—a witness must be certified as an expert. A person may be certified as a witness because of specialized education, training, or experience, beyond that of ordinary people.
In order to have an expert certified to act as a witness, you must first provide a notice of expert testimony or an expert report. If the expert will not testify in person, you can instead provide an expert report. In either case, the notice or the report must be provided to the EAB 84 days before the start of the hearing (when an oral hearing starts or when written submissions are first due).
The EAB’s Rules require each party to provide an outline of their respective cases in a “Statement of Points”, including all relevant documents they will rely on at the hearing. The Rules require that this information must be provided to the EAB and the other parties to the appeal. Although the EAB’s Rules state that an appellant’s Statement of Points is generally due 30 days before a hearing begins and other parties’ Statements of Points are generally due 15 days before the hearing begins, the EAB will confirm the appropriate timeframes in specific circumstances of your appeal.
Yes, unless the EAB rules that it will only consider the information that was before the original decision-maker. This is called an appeal “on the record”. It is rarely, if ever, done.
You will be responsible for ensuring that the appropriate equipment is present at the hearing location. If you want any presentation material to be considered as evidence, you will need to provide it to the EAB and the other parties along with your Statement of Points.
The EAB will do its best to accurately estimate how long an oral hearing will need, based on the particular issues to be argued and the evidence to be presented. The Case Manager assigned to your appeal will work with all parties to ensure that the hearing proceeds efficiently and as quickly as possible, while still ensuring that all parties have the time they need to reasonably present their evidence and arguments and respond to the cases put forward by other parties. Cooperating with the Case Manager will ensure that the hearing unfolds as smoothly as possible.
Yes, although if there is some error or technical issue that prevents the recording of the hearing, the hearing remains valid.
You should include everything you might rely on in the hearing with your Statement of Points. If you discover some relevant information after providing your Statement of Points, you should provide it to the EAB and the other parties as soon as possible, and explain why you were unable to provide it along with your Statement of Points. If you cannot provide the information beforehand, you must ensure that the EAB, every party, every member of the panel, and the court reporter (if there is one) gets a copy before it gets discussed at the hearing.
The panel will decide whether to allow you to include this information with your case. Among the factors the panel will consider is whether you provided it as soon as you could do the other parties and to the EAB.
Yes. You will need to write to the EAB and the other parties, and explain why you think a site visit would help the panel better understand the facts relevant to the appeal. It is important you submit such a request as early as possible, as there may be organizational difficulties. A panel will typically decide whether to conduct a site visit.
If a party, participant, intervener, or witness needs an interpreter or any other accommodation (for example, services to assist the hearing or visually impaired) during a hearing, please let the EAB know at least 30 days before the hearing. The EAB will make every effort to accommodate these requests, so that everyone involved in a hearing can meaningfully participate.
The EAB must issue decisions in writing. In urgent cases, this may be shortly after a hearing concludes, but it will generally take weeks or months for a panel to consider all the evidence and submissions, and to write a decision. The EAB has a Practice Directive that sets out expectations for how long panels will take to write decisions after hearings complete, although in any given case the time may be less or more.
When a decision is complete, the EAB will provide copies to all parties and to the relevant minister(s). The EAB will also publish the decision on its website and may provide it to archives of court and tribunal decisions (for example, Lexis or CanLII) for greater access by the public, representatives and other decision-makers.
The EAB can confirm, vary, or rescind any decision under appeal. Under all appeals except those brought under the Mines Act, the EAB can also:
• send a decision back to the decision-maker, with directions, for a new decision, or
• make any decision the original decision-maker could have made that is reasonable in the circumstances.
When the EAB issues a decision, it cannot change it. The EAB can, however, amend a decision to fix:
- a clerical or typographical error;
- an accidental or inadvertent error, omission or other similar mistake; or
- an arithmetical error made in a computation.
The EAB can also “reopen” an appeal to “cure a jurisdictional defect”, which includes making a decision the EAB is not empowered to make, failing to address an issue in an appeal, or acting unfairly.
Parties can also ask the EAB to clarify a decision within 30 days of the decision being issued, and the EAB may do so at its discretion.
Otherwise, if you disagree with a decision, you can apply to the Supreme Court of British Columbia for a judicial review of that decision, under the Judicial Review Procedure Act. You could also ask that Cabinet to vary or rescind a decision of the EAB, as they are authorized to do in the public interest, under the Environmental Management Act.