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.  

B.C. Supreme Court Rejects Easement Claim

Mark Underhill successfully obtained summary dismissal of a claim for an easement over and/or expropriation of his client’s land.

The plaintiff held a water licence for the purpose of accessing water from a nearby creek by way of a ditch across his neighbour’s property.  However, the BC Supreme Court concluded that the plaintiff did not have an implied easement to operate any irrigation ditches both because the ditches were not the subject of continuous use and because any implied easement would have been granted by a different person than the current property owners. 

The plaintiff’s request to expropriate a ditch that was not envisioned on his water licence was also denied because it would unreasonably interfere with the defendant’s use and enjoyment of his property, and was not necessary to the exercise of the plaintiff’s water rights.

We have a broad civil litigation practice with experience resolving disputes arising under complex legislative regimes like this one which arose under the Land Title Act and Water Sustainability Act.

To read the full judgment, click here.

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