IN THE SUPREME COURT OF ~RITISH

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I Prince George, B.C. 13 June 1997 IN THE SUPREME COURT OF ~RITISH COLUMBIA . (INCHAMBEtl No. 00732· No. 91282 Prince George Registry Princ George Registry BETWEEN: DEPUTY DIRECTOR OF THE WILDLIFE BRANCH OF THE MINISTRY OF ENVIRONMENT, LANDS AND PARKS OF THE PROVINCE OF BRITISH COLUMBIA BET EEN: (PETITIONER) (PETITIONER) AND: AND: ENVIRONMENTAL APPEAL BOARD D~PUTY DIRECTOR OF THE WILDLIFE and LYNN ROSS B~NCH OF THE MINISTRY OF E~VIRONMENT, LANDS AND P.ARKS Of THE PROVINCE OF BRITISH Cl LUMBIA (RESPONDENTS) (RESPONDENT) REASONS FOR JUDGMENT OF MR. JUSTICE T OR H. M. GROBERMAN, Esq., M. DURANDO, Esq., D. E. M. JENKINS, Q.C., for De P :1ty Director for Envircnmental Appeal Board for Mr. ass

Transcript of IN THE SUPREME COURT OF ~RITISH

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Prince George, B.C.13June 1997

IN THE SUPREME COURT OF ~RITISH COLUMBIA

. (INCHAMBEtl

No. 00732· No. 91282Prince George Registry Princ George Registry

BETWEEN:

DEPUTY DIRECTOR OF THEWILDLIFE BRANCH OF THEMINISTRY OF ENVIRONMENT, LANDSAND PARKS OF THE PROVINCE OFBRITISH COLUMBIA

BET EEN:

(PETITIONER) (PETITIONER)

AND: AND:

ENVIRONMENTAL APPEAL BOARD D~PUTY DIRECTOR OF THE WILDLIFEand LYNNROSS B~NCH OF THE MINISTRY OF

E~VIRONMENT, LANDS AND P.ARKSOf THE PROVINCE OF BRITISHCl LUMBIA

(RESPONDENTS) (RESPONDENT)

REASONS FOR JUDGMENT

OF

MR. JUSTICE T OR

H. M. GROBERMAN, Esq.,M. DURANDO, Esq.,D. E. M. JENKINS, Q.C.,

for DeP:1ty Directorfor Envircnmental Appeal Boardfor Mr. ass

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THE COURT:(Oral) This is a petition of the D1eputyDirector of the Wildlife

Branch acting in his capacity as a Regional Manager pursuant to Section

100 of the WildlifeAct, which I hereatter refer to as the Act, and Section

23 of the Interpretation Act for a review under the provisions of the

Judicial ReviewProcedure Act of an ord1ermade by the Environmental

Appeal Board on the 14th of February of 1997.

A brief history of this matter is necessary for an

understanding of the issues raised on this review. The Respondent Lynn

Ross in 1993 was licenced and certified as a guide outfitter pursuant to

the provisions of the Act. On the 26th of May of 1993, the regional

mrager for the Northern Region reneJrd Mr. Ross's licence and at the

same time gave him notice that there would be a hearing conducted by

the Deputy Director pursuant to section 62 of the Act to determine if he

should continue to hold the PriVilege.oflbeinga guide outfitter and, until

~at heanng was completed, an application by Mr. Ross to transfer hIS

licence would not be considered.

I Mr. Ross applied fora judicial review of that decision to hold

that hearing and to subsequently not atiourn it. Ultimately that

aJplication was dismissed on the 26th of October of 1993, and an appeal

from that decision was dismissed as abl ndoned in March of 1996.

I On June the 24th, 1993, notwithstanding the application to

which I referred to by Mr. Ross to adjoJrn the hearing, the Deputy

Director held a hearing under Section d2. Mr. Ross, unsuccessful in his

abplication to adjourn that hearing, dellined to participate. On the 1st

01 September of 1993, the Deputy Diredtor rendered his decision which

was that Mr. Ross' guide outfitter licenie was suspended and his

certificate was cancelled. However in order to permit Mr. Ross anI

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opportunity to shut down his operati01s in an orderly manner and not to

leave any clients stranded in the field, the Deputy Director ruled that his

decision was to be effective in two weeks time following the 1st of

September of 1993. In doing so, he sail;

To accommodate clients that may be in the field or in transit,

the suspension and cancellation will be effective September

15, 1993. I do not conside~ proper any consideration of

transferring the territory prior to the suspension and

cancellation taking effect. (Quoted as Read)

'" IRoss filed an appeal from that decision. That appeal was pursuant

to Section 101(5) of the Act. The appeal was heard by the Environmental

Appeal Board on the 23rd and 24th of October of 1996. At that appeal,

delpite the fact that Mr. Ross had absented himself from the hearing

beJJre the Deputy Director in June of 1993, the Board permitted Mr.

ROfs to lead and give evidence. During the hearing of the appeal Mr.

ROrSconceded that the Deputy Director, having found some sixteen

Violations or allegations of misconduct las established, could properly

carbel the certificate. The Environmental Appeal Board dismissed most

of r. Ross grounds of appeal, and on the 14th of February of 1997 it

concluded its decision, and I quote,

"It is the decision of this panel that the Deputy Director: 1)·

Was not biased and properly exercised his discretion in

.deciding to cancel Mr. Ross' certificate and to suspend his

.licence; and 2) Erred in law by deciding an issue not

properly before him, thereby fettering the ability of the

regional managers to exercise an independent discretion.3

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Accordingly the matter is se nt back to the Deputy Director

with the following directionl 1) The Deputy Director shall

renew the Appellant's gUid~outfitter certificate for a period of

ninety days to allow the Appellant to file a formal application

for transfer of the said cer~ficate; 2) the Deputy Director (or

the Regional Manager if th1 Deputy Director so delegates)

shall decide whether to authorize a transfer and the

conditions of any such trarisfer, If the Appellant fails to file a

transfer application or, hav~ng filed one, is denied the

transfer, the certificate will cease to exist."

(Quoted as Read)

The issues raised on this review are sta ed as follows: 1) That the

Environmental Appeal Board erred in law and jurisdiction in its

interpretation of the comments of the Deputy Director respecting the

transfer of Mr. Ross' licence and, 2) if tie Environmental Appeal Board

was correct in the interpretation of the comment of the Deputy Director

respecting transfer, was it within his jutSdiction when it ordered the

ni ety day period.

The relevant provisions of the Act respecting appeals from

the decisions of the Deputy Director when functioning as a Regional

Manager are found in Sections 101(5) (l) and 101(10) (a) and (b), which

arei as follows:

(5) (a),

"If the Director exercises thr powers of a regional manager in

respect of the matters referred to in su?section (1), the

person aggrieved by the de4ision may appeal the decision of

the Director to the Environbental Appeal Board,"

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Andunder subsection (10), I"In an appeal th~ Environ1ental Appeal Board may (a)

dismiss the apP9al or (J) send the matter back to the

. . Regiorlal Manag~r or Direcjor with directions."(Quotedas Read)

III t .As will be noted from subsection (10), he powers of the EnvironmentalI .

Appeal are l.imited in terms o~what tha, Board ca~ d~. As well the Board

does not enjoy a statutory shield by way of any privative clause thatI

limits or restricts judicial revievyof its decisions. While it performs

various functions arising out ofldiffeJ1eJtActs, the Act does not contain

such a provision, nor is the Board 01" lbout which it can be said has

some superior expertise thatlextendslt1 questions oflaw. Thus a review

of its decisions must he done' on the Jsis of correctness rather than theI

standard of reasonableness. Attorne, General of Canada v. Mossop

[19931 100 D.L.R.(4th) 658 and 676. Jowever what I have just referred

to does not mean to say thatlsuch dl'SlOns of the Environmental Appeal

Board should not be regardek with ar1hing but respect.

Counsel for the Director ~rgues that what the Deputy

Director said does not form part of hls ~rder, and that the true effect of

that decision w.as to suspend and C,+l and to make it effec.tivefourteen

days hence. So arguing, it is submitroi the Deputy Director simply

expressed a view that, in the event 0ta transfer application, he would not

consider proper any consideration of a iransfer during that fourteen day

period. Thus, it is argued, the Depu Director simply emphasized the

purpose of the fourteen day hiatus, thJt is, to permit an orderly

shutdown. The position of the; ~irecJo1 then is that these words do not

form part of the order respecting trtnsffer, a subject matter that was not

then before the Director.I 5

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Counsel for Mr. Ross argues that what the Board did was to

interpret the words of the Director to ddtermine the effect of the order

made. The result of that mterpretation] it is argued, is that the Board

concluded the Director had given a rigJt of transfer and all the Board did

was to expand the time period for the ,ansfer to ninety days. Mr.

Darando says that there were two interpretations of what that passage

that I quoted from the Director meant, knd the Environmental Appeal

Board determined what it was the Diredtor wanted, that is to say dealing

with a right of transfer. The effect of t+ decision, if what in fact the

Director said was in reference to a transfer was in order, was a substitute

of the Director's order whereby it fixediperiod of time in which the

transfer could be applied for from fourteen to ninety days by ordering the

reinstatement for a period of ninety da+ that it did.

The powers of the Environmental Appeal Board, as I have

noted, are very limited under the appeJl provision of Section 101 (5) and

101 (10). As noted by Madam Justice 7uddart, as she then was, in

Olson v. Walker, Duncan Registry 228, August 21, 1989, the powers of

the Appeal Board do not include the porer to substitute its opinion for

that of the Deputy Director or, in this case, where he functions as a

regional manager. It simply has no poler under its enabling legislation,

being Section 101(10), from which it de~ives such authority to substitute

a different opinion for that rendered by the Deputy Director. No issue

arises on this appeal as to whether the Director properly exercised his

powers on the basis that the cancellation or suspension was conceded.

In my opinion, it is necessJry only to deal with the first

issue. The words of the Directorl permJ in my view, only one

interpretation, that is the SUsP+sion a~d cancellation was to be

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suspended effective the 15th of Sleptemlberof 1993. He then said that he

did not consider proper any consideration of transfer of the territory prior

to' suspension and cancella.ti~n tlking lffect. Given what he had just

said about the reasons for the twr weeJ period, which was to permit Mr.

Ross an opportunity to shut down his Jperations in an orderly manner,

all the Director was doing in my lpiniolll was to impart that, should a

transfer application be made, it ,10Uld !lOtbe proper to give the

.application consideration given that he otherwise would have made his

order effective forthwith. One mJst be mindful that the order under

Section 61(a) to suspend or cancl1 is in fact punitive. Mr, Ross conceded

conduct that gave rise to that ty+ of 01der. To permit a transfer within

the two week period would unde1mine the sanction imposed.

In my view, the Enviionmental Appeal Board erred in

concluding that the fourteen day Iperiod discussed by the Deputy

Director in terms of transferring was an order of the Director. It was not

and, as such, it is not a matter tfat was properly before the Board for its

consideration. If anything, it was a direction in the event of a transfer

application that might be made during 11that period of time. It follows that

the order of the Environmental Appeal Board was not within the

jurisdiction of the Board to mak1' The lorder of the Environmental

Appeal Board of the 14th of February of 1997 is quashed, and the order1 11 .

of the Deputy Director made the 1st of September of 1993 is confirmed.

The Director is entitled, if it so seeks, its costs with respect

to this hearing on a scale 3. 11

I take from the comments <ofcounsel that the order for

mandamus in the other separatelmatt~lr brought by Mr. Ross to be

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dismissed without costs.

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If my understanding is other than yours, Mr. Darando,

please let me know.

MR. DARANDO.

THE COURT:

That's acceptable, My Lord, thank you.IThank you, gentlemen.

23 June 1997/ slm

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