Court Confirms “Specialist”  Supervisory Role of the Safety Standards Appeal Board

In a recent decision dismissing a petition for judicial review, and upholding the Safety Standards Appeal Board’s decision to vary a monetary penalty imposed by a safety manager under the Safety Standards Act, the BC Supreme Court confirmed the specialized supervisory role of the Board.

 The Safety Standards Appeal Board hears appeals of decisions made by safety officers and safety managers under the Safety Standards Act, as well as appeals brought under the Homeowner Protection Act and the Building Act

Justice Gomery of the  BC Supreme Court held that the Board, as independent specialist tribunal, was entitled to substitute its own opinion as to the appropriate monetary penalty , and did not need to defer to the decisions of the safety manager.  The Court also noted that the Board was entitled to considerable deference by the Court in judicial reviews.

Mark G. Underhill and Kate R. Phipps of Arvay Finlay represented the Safety Standards Appeal Board.

First Civil Resolution Tribunal Appeal Dismissed

Reasons for judgment were recently released for the first appeal of British Columbia’s newly created Civil Resolution Tribunal ("CRT").

The underlying dispute involved move-in/move-out fees that a strata corporation in Vancouver charged its occupants. A tenant living in the strata challenged the fees levied against his roommates on the basis that they were unreasonable in circumstances where no furniture was required to be moved, and that in any event, it was significantly unfair for the strata to wait two and a half years to levy the fees, and then cancel his roommate’s fob access without notice in order to obtain payment.

The tenant was successful at the CRT. The tribunal member found that the bylaw was unreasonable given that the actual expense to the strata from moves without furniture was closer to $25 but the strata charged a flat fee of $100. The tribunal member further found that the conduct of the strata was significantly unfair given that the strata induced the payment of the fees out of duress.

The strata appealed the CRT decision on three grounds. First, the strata argued that the CRT erred in law in failing to address the tenant’s standing. Second, the strata argued that the CRT erred in law in applying a subjective rather than objective test to determine the reasonableness of the bylaw. And third, the strata erred in law in applying a subjective rather than an objective test to determine whether the strata’s conduct was significantly unfair, and in any event, made an ultra vires order due to a drafting error in the legislation.

Mr. Justice Pearlman dismissed the CRT’s appeal on all three grounds, and exercised his discretion to remedy the drafting error in the legislation (which has, since the appeal hearing, been amended by statute). He also further discussed at length the standard of review to apply to CRT decisions, which will be of precedential value to future CRT appeals.

The reasons for judgment are available here.

David W. Wu acted for the successful tenant in defending the appeal. Arvay Finlay LLP has considerable experience litigating statutory appeals and judicial reviews from tribunal decisions.

Injunction Granted to Protect Chanterelle Forest

The BC Supreme Court has today issued an interim injunction to prohibit logging activity in the Chanterelle Forest - part of the Sunshine Coast Community Forest - pending determination of a judicial review brought by the Elphinstone Logging Focus (ELF).

In her reasons, Madam Justice Warren noted that ELF had raised a serious issue to be determined, noting that the Community Forest had failed to provide concrete and specific evidence that there was public consultation in regards to the logging of the Chanterelle Forest. She noted that the purpose and intent of community forests require some form of ongoing public consultation.

In assessing irreparable harm and the balance of convenience, Madam Justice Warren found that while trees are renewable resources, these specific trees and the biodiversity contained within the forest are not. Given that the damages suffered by the Community Forest from the injunction would only be monetary, and thus compensable, the Court found that the balance of convenience favoured granting the injunction to prevent irreparable harm that logging would cause to the forest.

ELF is an organization with a mandate to educate the public about the forests and habitat on the Sunshine Coast, and to protect those forests and habitat in support of tourism and recreation. 

David W. Wu of Arvay Finlay LLP represented ELF in the injunction application. 

B.C. Supreme Court upholds Environmental Appeal Board in Municipal Contaminated Sites Dispute

In another strong judgment recognizing the specialized expertise of the Environmental Appeal Board, the Supreme Court of British Columbia upheld the Board’s decision denying the City of Burnaby standing to challenge a certificate of compliance issued by the Director of the Environmental Management Act on the basis that it was not prejudiced by the issuance of the certificate.

Between 1963 and 1996, Suncor operated a Petro-Canada service station and garage in Burnaby which contaminated that site and an adjacent property owned by the City of Burnaby.  Suncor carried out an investigation, partial remediation and risk assessments of those lands, and in December of 2015, the Director certified that Suncor had satisfactorily remediated both properties.  The City, however, believed that Suncor had failed to properly remediate the City Lands and appealed to the Board. 

The Board determined the City did not have a right to appeal the Director’s certificate in respect of the former service station site because the certificate did not prejudice the City’s interests.  The Board found that the City could mount its arguments on its appeal of the certificate concerning its own  property.

Applying a deferential standard of review, the BC Supreme Court found the Board’s  decision to be reasonable, taking into account the Board’s expertise in contaminated sites and the interpretation of the Environmental Management act.

Mark Underhill acted as counsel for  the Environmental Appeal Board.

 The full judgment can be found here.  

Federal Court Refuses to Interfere in Administrative Process

Today the Federal Court issued its decision in Northern Cross (Yukon) Limited v Canada (Attorney General, 2017 FC 622. The case concerns an application for judicial review pursued by a company involved in the exploration for and potential development of crude oil and natural gas in Yukon. A designated office of the Yukon Environmental and Socio-economic Assessment Board determined to refer the project to the Executive Committee of the Board for a screening because, after taking into account any mitigative measures included in the project proposal, it could not determine whether the project would likely have significant adverse socio-economic effects. The company applied for judicial review of that decision.

The Court accepted the argument of the Respondent and the Board and held that the applicant's application for judicial review was premature. Absent exceptional circumstances, the Court will not interfere with an ongoing administrative process until after that process has been completed or until the available, effective remedies have been exhausted. A designated office's decision may be subject to judicial review when the designated office makes a recommendation to the decision body or bodies for the project to be allowed, not allowed, or allowed with terms and conditions. A decision to refer assessment of a project to the Executive Committee for a screening does not complete or end the administrative assessment of a project before the Board. A referral decision is merely one to continue the assessment of a project at a higher level in the review process established under the Act.

This decision accords with the jurisprudence that holds that generally speaking courts are reluctant to review the merits of an administrative decision until it has been finalized. Applications for judicial review are properly brought at the conclusion of an administrative process after all issues have been determined and the reviewing court has the benefit of the complete record.

Alison M. Latimer and Joseph J. Arvay, Q.C., acted for the Board in this proceeding. To read the full decision, click here.

We have broad experience in administrative law matters, including environmental assessment procedures.

Alison M. Latimer and Joseph J. Arvay, Q.C. are called to the bar in the Yukon.


Supreme Court of Canada Grants Federation of Law Societies Leave to Intervene

Today the Supreme Court of Canada granted the Federation of Law Societies leave to intervene in Joseph Peter Paul Groia v. Law Society of Upper CanadaThe appeal concerns the scope of the jurisdiction of the Law Society of Upper Canada with respect to in-court conduct of its members. It raises significant questions of national importance about the extent to which any law society in Canada may regulate uncivil in-court conduct in light of the duties of zealous advocacy and loyalty to the client’s cause, the independence of the judiciary, and the free expression of members of the law society.

Alison Latimer and Greg Delbigio Q.C. act for the Federation of Law Societies.

BC Supreme Court Protects Jurisdiction of Environmental Appeal Board

In a recent decision striking out various parts of a petition for judicial review, Justice Donegan of the BC Supreme Court confirmed the expert role of the Environmental Appeal Board to hear appeals on a variety of environmental matters, and held that the Courts only had a limited supervisory role in reviewing decisions of the Board.   Justice Donegan noted that the Provincial Legislature had specifically chosen to entrust the Board with that broad jurisdiction, and that choice, combined with the tribunal’s established expertise,  meant that the courts should generally defer to the Board’s decisions, and be careful not to substitute  the courts’  view of the evidence and issues for that of the Board.   Underhill, Boies Parker, Gage & Latimer LLP were counsel for the Environmental Appeal Board on this application.

The decision can be found here:  Lindelauf v. British Columbia, 2017 BCSC 626

BC Supreme Court upholds expertise of Environmental Appeal Board

The BC Supreme Court has once again held that on the Court must give decisions of the Environmental Appeal Board substantial deference on judicial review.  In doing so, Justice MacKenzie rejected arguments aimed at narrowing the Court's understanding of the Board's expertise and applying the "general question" exception to the presumption of reasonableness. In upholding the Board's substantive decision Justice MacKenzie also confirmed the way in which the deferential standard of reasonableness ought to be applied by the reviewing court.  Robin Gage was counsel for the Environmental Appeal Board in this judicial review hearing.    

The Court's decision can be found here: Harrison Hydro Project Inc. v. Environmental Appeal Board, 2017 BCSC 320