Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E9 Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO EMA-003(b) and 2014-EMA-004(b) In the matter of an appeal under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53. BETWEEN: Emily Toews and Elizabeth Stannus APPELLANTS AND: Director, Environmental Management Act RESPONDENT AND: Rio Tinto Alcan Inc. THIRD PARTY PERMIT HOLDER BEFORE: DATE: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on September 28, 2015 APPEARING: For the Appellants: For the Respondent: For the Third Party: Richard Overstall and Chris Tollefson, Counsel Dennis Doyle, Counsel Ben Naylor, Counsel Jana McLean, Counsel Daniel R. Bennett, Q.C., Counsel RECONSIDERATION DECISION and PRELIMINARY ISSUE OF STANDING TO APPEAL [1] In a joint letter dated September 8, 2015, Emily Toews and Elisabeth Stannus asked the Board to reconsider its December 4, 2014 decision declining jurisdiction over their appeals of the October 7, 2014 Letter of Approval issued to Rio Tinto Alcan Inc. ( Rio Tinto ) by Ian Sharpe, North Region Director (the Director ), Regional Operations Branch, Ministry of Environment. In that same December 4, 2014 decision, the Board also declined jurisdiction over an appeal filed by Unifor Local 2301 ( Unifor ) against the Letter of Approval. The Board declined jurisdiction over all three appeals on the ground that the Letter of Approval was not an appealable decision under section 99 of the Environmental Management Act (the Act ): see Elisabeth Stannus, Emily Toews and Unifor Local 2301 v. Director, Environmental Management Act, Decision Nos EMA-003(a), 004(a) and 005(a)); [2014] B.C.E.A. No. 33 (Q.L.). [2] The Letter of Approval at issue approves an Environmental Effects Monitoring Plan prepared by Rio Tinto in accordance with a requirement in an amendment to

2 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 2 Rio Tinto s air emissions permit that was approved by the Director on April 23, 2013 (the Permit Amendment ). Ms. Toews and Ms. Stannus appealed the Permit Amendment decision. Their appeals were heard by a three-person panel of the Board over a number of weeks. The Panel s decision is pending. A more detailed description of the appeals by Ms. Toews and Ms. Stannus, can be found in six preliminary decisions in relation to those appeals. 1 BACKGROUND [3] In its decision dated December 4, 2014, the Board rejected the appeals by Unifor, Ms. Stannus and Ms. Toews against the Letter of Approval. As stated above, the Board found that the Letter of Approval is not an appealable decision under section 99 of the Act. Therefore, the appeals were rejected and the Board concluded that it need not consider the separate issue of whether these three Appellants had standing to appeal the Letter of Approval under section 100(1) of the Act. [4] Unifor filed a petition with the B.C. Supreme Court seeking a judicial review of the Board s December 4, 2014 decision. The Appellants Stannus and Toews did not seek a judicial review of the Board s decision, and did not participate in the judicial review proceedings. [5] In Unifor Local 2301 v. British Columbia (Environmental Appeal Board), 2015 BCSC 1592 [Unifor], the Court set aside the Board s December 4, 2014 decision as it pertained to Unifor, and remitted the matter back to the Board for reconsideration in accordance with its reasons. The Board reconsidered its decision, as well as Unifor s standing to appeal, in Unifor Local 2301 v. Director, Environmental Management Act, (Decision No EMA-005(b), November 16, 2015), (the Unifor Reconsideration ). In accordance with the Court s directions, the Board found that the Letter of Approval was an appealable decision under section 99(d) of the Act. The Board also found that Unifor had standing to appeal that decision under section 100(1) of the Act. The Unifor Reconsideration was undertaken pursuant to the Court s direction in Unifor, and only applied to Unifor. [6] In their September 8, 2015 letter to the Board, Ms. Stannus and Ms. Toews ask the Board to reconsider its December 4, 2014 decision as it applies to their appeals of the Letter of Approval; specifically, they ask the Board to reconsider whether they can appeal the Letter of Approval in light of the Court s judgment in Unifor. If so, they submit that they have standing to appeal the Letter of Approval. [7] Rio Tinto Alcan argues that the Board has no authority to reconsider its decision vis-à-vis Ms. Stannus and Ms. Toews. It argues that the Court s judgment in Unifor does not apply to them, and the Board is prohibited from reconsidering its 1 See: Gagne et al. v. Director (2013-EMA-005(a) & 007(a)-012(a), October 31, 2013); Gagne et al. v. Director (2013-EMA-005(b), 008(b), 011(b) & 012(b), April 17, 2014); Toews & Stannus v. Director ( (b)(c) & 010(b)(c), August 22, 2014); Toews & Stannus v. Director (2013-EMA-007(d) & 2010(d), October 2, 2014); Toews & Stannus v. Director (2013-EMA-007(e) & 010(e), November 10, 2014); and Toews & Stannus v. Director (2013-EMA-007(f) & 010(f), December 3, 2014).

3 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 3 December 4, 2014 decision on the basis that it is functus officio (having performed the function). It also argues that Ms. Stannus and Ms. Toews do not have standing to appeal. [8] The Director did not address the functus officio argument, nor make any submissions on whether the Court s decision in Unifor provides the Board with authority to reconsider its December 4, 2014 in relation to Ms. Stannus and Ms. Toews. However, on the question of standing, the Director argues that they do not have standing to appeal the Letter of Approval. ISSUES [9] The Board has considered the following issues: 1. Whether the Board is prevented from reconsidering its December 4, 2014 decision on the basis that it is functus officio? If not, whether the Letter of Approval is a decision under section 99 of the Act? 2. Whether Ms. Stannus and Ms. Toews have established that they are persons aggrieved by the Letter of Approval under section 100(1) of the Act. DISCUSSION AND ANALYSIS 1. Whether the Board is prevented from reconsidering its December 4, 2014 decision on the basis that it is functus officio? If not, whether the Letter of Approval is a decision under section 99 of the Act? The Parties Positions [10] Rio Tinto argues that the Board cannot reconsider its December 4, 2014 decision with respect to the Appellants Stannus and Toews on the grounds that the Board is functus officio. It cites the Supreme Court of Canada s decision in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 [Chandler], in support. The principle of functus officio is that, once an adjudicator has reached its decision it cannot, afterwards, alter its award except to correct clerical mistakes or errors arising from an accidental slip or omission, or other specific, limited circumstances. Rio Tinto submits that none of the exceptions to the principle of functus officio apply in this case. [11] Rio Tinto points out that the Court s reasons in Unifor clearly indicate that only the EAB s decision in regard to Unifor s appeal is set aside, and that the EAB is to reconsider that decision. Rio Tinto submits that it is not aware of any law that allows Ms. Stannus and Ms. Toews to revive their appeals on the basis of a successful judicial review by another party. [12] In addition, Rio Tinto maintains that Ms. Stannus and Ms. Toews have, in effect, had their appeals of the Letter of Approval (and the Environmental Effects Monitoring Plan that was approved by the Letter of Approval) heard by the Board. It states that, during the hearing of their appeals of the Permit Amendment, these

4 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 4 Appellants presented expert evidence on the Environmental Effects Monitoring Plan and had the opportunity to cross-examine Rio Tinto s experts on the quality of the plan: they canvassed the quality of the plan at length. [13] Finally, Rio Tinto notes that, if Ms. Stannus and Ms. Toews elect to judicially review the Board s decision at this time, they will not necessarily achieve the same result as Unifor. It notes that the court will consider whether it should exercise its discretion to grant any relief given Toews/Stannus delay in commencing their judicial review as well as the fact that they were able to fully canvass the plan in the context of their Permit Amendment appeals. [14] In response, Ms. Stannus and Ms. Toews argue that one of the findings in Chandler is that the principle of functus officio should be applied to administrative tribunals in a flexible manner. Sopinka J. held that: I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. (para. 21) [15] Moreover, Ms. Stannus and Ms. Toews note that the Court in Unifor set aside the Board s December 4, 2014 decision and ordered the Board to reconsider its decision. They argue that, in effect, the Board s December 4, 2014 decision is a nullity, and its decision rejecting their appeals of the Letter of Approval amounts to no disposition at all. As such, they submit that the Board is permitted and, with respect to Unifor s appeal, was ordered to, reconsider the matter afresh and render a valid decision. Ms. Stannus and Ms. Toews rely upon the following findings of Sopinka J. in Chandler: 24 In this appeal we are concerned with the failure of the [Practices Review] Board to dispose of the matter before it in a manner permitted by the Architects Act. The [Practices Review] Board intended to make a final disposition but that disposition is a nullity. It amounts to no disposition at all in law. Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision. 26 In this proceeding the [Practices Review] Board conducted a valid hearing until it came to dispose of the matter. It then rendered a decision which is a nullity. It failed to consider disposition on a proper basis and should be entitled to do so. The Court of Appeal so held. The Panel s Findings [16] As noted by Rio Tinto, the Court in Unifor expressly limited its findings and remedy to Unifor. Does this mean, as Rio Tinto suggests, that Ms. Stannus and Ms. Toews must pursue their own judicial review of the Board s decision and hope to get the same result as Unifor? The answer depends on whether the Board is prevented from reconsidering its decision on the basis that it is functus officio.

5 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 5 [17] In Chandler, the Supreme Court of Canada explained the origin of functus officio as follows: 19. The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: 1. where there had been a slip in drawing it up, and, 2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R [18] The Court then went on to consider whether the principle of functus officio applied to administrative tribunals. The Court states: 20.. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. 21. To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [Emphasis added] [19] The Panel notes that that the language in Chandler focuses on final decisions, which usually means a decision on the merits. The Board s December 4, 2014 decision is not a final decision in that sense; it was a decision on a preliminary question of law. However, as the parties did not address whether the principle of functus officio applies to a preliminary decision of this nature, and given that the Board s decision was final in the sense that it resulted in a rejection of the appeals, the Panel will assume, without deciding, that the principle is relevant to such a decision. [20] As noted by Ms. Stannus and Ms. Toews, the Court in Chandler also found that a decision that is a nullity is an exception to the principle of functus officio. It

6 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 6 found that, traditionally, a tribunal that makes a determination which is a nullity has been permitted to reconsider the matter afresh and render a valid decision. In the present case, the Board s December 4, 2014 decision with respect to Unifor is a nullity: it was set aside and the Board was ordered to reconsider its decision. However, given that the Court expressly restricted its findings and remedy to Unifor, it is not clear that the December 4, 2014 decision is also a nullity vis-à-vis Ms. Stannus and Ms. Toews, despite the obvious logic of such a conclusion. None of the parties provided authority that would clearly support such a finding. [21] The issue now before the Panel is unlike the usual issues of functus officio that find their way to the courts. In those cases, the reconsideration is often done on the court s, or tribunal s, own initiative. In this case, the BC Supreme Court has found that the Board made an error of law in its interpretation of section 99 of the Act, has set aside that decision vis-à-vis one party, and has ordered the Board to reconsider its decision vis-à-vis that one party. The Board has done so in the Unifor Reconsideration. If Rio Tinto is correct and the Board has no jurisdiction to reconsider its decision in relation to Ms. Stannus and Ms. Toews, the outcome will be both bizarre and problematic: the Board s decision is a nullity as it relates to Unifor and Unifor may now proceed with its appeal of the Letter of Approval, but the Board s decision is alive as it relates to Ms. Stannus and Ms. Toews and prevents them from appealing that same Letter of Approval. Although some of Ms. Stannus and Ms. Toews arguments regarding the Environmental Effects Monitoring Plan were made during the hearing of their Permit Amendment appeals, the Panel accepts that they were not able to present all of the evidence and arguments, or access the same remedies as they would have, if the Board had accepted their appeals of the Letter of Approval. [22] As a further oddity, if Ms. Stannus and Ms. Toews had an opportunity to file a new appeal of the Letter of Approval, or appeal a decision which forms stage 3 of Rio Tinto s permit amendment application, the Board would be required to apply the Court s reasoning in Unifor pursuant to the principle of stare decisis. Functus officio is a principle that promotes finality of decision-making. Finality provides certainty for parties. It also promotes an orderly appeal process. These values were recognized by the Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] S.C.J. No. 63 (Q.L.), in the following paragraph: 79. It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp ). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal.... [23] In the present case, there was a stable base from which Unifor launched its judicial review. As a result of that review, the Court found that the Board erred in law when it decided that the Letter of Approval was not an appealable decision under section 99 of the Act. If the Board reconsiders its decision in relation to Ms. Stannus and Ms. Toews, it does not assume the function of an appellate court, as the Court has already reviewed the decision and found the Board s decision to be in

7 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 7 error. The Panel finds that the underlying purposes or reasons for functus officio are not, therefore, undermined by such a reconsideration. [24] Although the Board s enabling legislation does not expressly authorize the Board to reconsider its decisions, the Panel finds that this is a circumstance where it has such authority because: there is no final decision on the merits of the appeals; the underlying purposes of the common law principle of functus officio are not violated or undermined; the Court in Unifor has found an error of law in the Board s decision and that error applies equally to the other two Appellants that were subject to that decision; the other two Appellants lose their ability to appeal if the reasoning of the Court is not applied to their cases, which is an unfair and unreasonable result; and if the Board was able to consider a new appeal of the Letter of Approval it would be bound to apply the Court s reasoning in Unifor pursuant to the principle of stare decisis. [25] In consideration of all of these factors, and being the master of its own procedure, the Panel finds that it may reopen the appeals of Ms. Stannus and Ms. Toews in order to reconsider the Board s December 4, 2014 decision in light of the findings in Unifor. [26] Further, the Board finds that a reconsideration in these circumstances is consistent with what is described in Chandler as a more flexible and less formalistic application of the principle of functus officio, as justice requires the reopening of the Board s proceedings in order to provide relief which would otherwise be available on appeal [judicial review]. [27] In the event that the Panel does not have this general authority to reconsider the decision for the reasons given above, it finds that, despite the lack of clear authority, the judgment in Unifor renders the entire December 4, 2014 decision a nullity, thus allowing the Board to reconsider its decision vis-à-vis Ms. Stannus and Ms. Toews. [28] Rio Tinto argues that the appropriate remedy for Ms. Stannus and Ms. Toews is to file their own petition and seek the same ruling from the Supreme Court. This is obviously one avenue available to Ms. Stannus and Ms. Toews. However, in the Board s view, this is unnecessary and would result in an unjustifiable and unnecessary burden on judicial resources. [29] In light of these findings, the Panel has reconsidered its December 4, 2014 decision as it relates to the appeals filed by Ms. Stannus and Ms. Toews. For the same reasons given by the Board in the Unifor Reconsideration, the Panel finds that the Letter of Approval is an appealable decision under subsection 99(d) of the Act, as it is stage-two of the Director s Permit Amendment decision.

8 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 8 2. Whether Ms. Stannus and Ms. Toews have established that they are persons aggrieved by the Letter of Approval under section 100(1) of the Act. [30] In the Unifor Reconsideration, the Board set out the test for determining standing to appeal. The Panel adopts, and relies upon, that test for the purposes of determining whether Ms. Stannus and Ms. Toews have standing to appeal the Letter of Approval. [31] For the purposes of determining standing, all of the parties advised that they rely upon the written submissions provided to the Board on or before December 1, No new submissions were made on the question of standing. As all of the parties submissions on standing were made prior to the Court s decision in Unifor, the Board s comments in the Unifor Reconsideration are applicable. At paragraph 50, the Board found that:. Given the Court s finding that the Permit Amendment and the Letter of Approval are part of the same decision-making process, that together they form the full content of the decision on the amendment application, it follows that the same test used to determine standing to appeal the stage-one decision (i.e., the Permit Amendment), applies to determine standing to appeal the Letter of Approval. [32] In 2013, Ms. Stannus and Ms. Toews appealed the Permit Amendment along with a number of other appellants. The standing of each appellant was challenged. In Gagne et al. v. Director (2013-EMA-005(a) & 007(a)-012(a), October 31, 2013), the Board found that Ms. Stannus and Ms. Toews had standing to appeal the Permit Amendment decision. [33] As the Court in Unifor found that the Letter of Approval is simply stage-two of that decision-making process, and Ms. Stannus and Ms. Toews have already been found to be persons aggrieved by stage-one of the decision making process, the Panel finds that they must have standing to appeal the full content of the decision on the amendment application, which includes the Letter of Approval. Thus, for the same reasons given in Gagne et al. v. Director (above), the Panel concludes that Ms. Stannus and Ms. Toews are persons aggrieved within the meaning of section 100(1) of the Act, and have standing to appeal the Letter of Approval. DECISIONS [34] Having considered all of the arguments made by the parties, even if not specifically referenced in this decision, the Board has reconsidered whether the letter of Approval is a decision within the meaning of section 99 of the Act.

9 DECISION NO EMA-003(b) and 2014-EMA-004(b) Page 9 [35] For all of the reasons set out in Unifor and in the Board s decision above, the Board finds that the Letter of Approval is a decision under section 99(d) of the Act. Further, the Panel finds that Ms. Stannus and Ms. Toews are persons aggrieved within the meaning of section 100(1) of the Act. As such, they have standing to appeal the Letter of Approval. Alan Andison Alan Andison, Chair Environmental Appeal Board November 27, 2015