The Minister’s decision not to order an environmental impact assessment with respect to the Appellant’s proposal to enlarge a ski resort was found to be patently unreasonable and quashed. The matter was ordered to be returned to the Director for determination in accordance with the legislation.

28. December 2004 0

Administrative law – Environmental issues – Environmental impact assessment – Decisions of administrative tribunals – Ministerial orders – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Castle-Crown Wilderness Coalition v. Flett, [2004] A.J. No. 1128, Alberta Court of Queen’s Bench, July 2, 2004, Kenny J.

The Applicant Wilderness Coalition applied for judicial review of the decisions of the Director of Regulatory Assurance, Alberta Environment (the “Director”) and the Minister of the Environment (the “Minister”) with respect to the expansion of a ski resort. The Director conducted a review of the Applicant’s proposal to determine if an environmental impact assessment (“EIA”) was required either because the proposed development was a “mandatory activity” or a “proposed activity” under the legislation requiring further assessment. The Director concluded that the expansion did not fall into either of those categories and that the EIA was not required. Following receipt of the Director’s decision, the Applicant asked the Minister to order an EIA pursuant to section 47 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (“EPEA”). The Minister declined to do so, affirming the Director’s determination.

With respect to the standard of review, the court noted that the application of the functional and pragmatic approach involved a consideration of four factors: the presence or absence of a privative clause; the expertise of the tribunal relative to that of the reviewing court in relation to the particular issue; the purpose of the legislation and the provision in question; and the nature of the problem. The court noted that the purpose of the EPEA and of the specific provisions as well as the expertise of the decision-maker militated in favour of a high degree of deference. The absence of a privative clause was not determinative and the fact that these issues were questions of mixed fact, law and policy suggested a moderate to high standard of review. The court therefore concluded that these decisions were subject to review on a standard of patent unreasonableness. In relation to the Minister’s decision not to order an EIA, the court held that other than the absence of a privative clause, all of the factors indicated a high degree of deference. This decision was therefore to be reviewed on a standard of patent unreasonableness. The same standard applied to the decision of the Director.

The Director decided that there was no “proposed activity” for her to assess since the activity had already commenced. The Director gave no explanation as to why she believed the activity had already commenced, but the court assumed that it was her view that because there were some buildings on the land, along with a ski hill that was in operation, the activity had already commenced. The court noted that in taking this argument to its logical conclusion, any existing recreational or tourism facility could enlarge its facilities and thereby its use and because there was already an existing facility in operation, their enlargement would never be subject to the environmental assessment process. That could not possibly be the correct interpretation of the legislation. The court therefore held that the Director’s decision that the activity had already commenced and was therefore not a “proposed activity” was patently unreasonable.

The Director’s decision that the development was not a “mandatory activity” was not patently unreasonable and in light of that finding, the Director had to decide whether the potential environmental impacts in any event warranted further consideration. The Director determined that the potential impacts of the proposed development could be dealt with through other means. However, the court noted that prior to releasing her decision in May of 2002, the record indicated that the Director was clearly of the view that an EIA was necessary. The question was therefore whether it was patently unreasonable, in the context of the EPEA, for the Director to have then reached the decision that an EIA was not required. The court held that the Director’s decision that an EIA was not required, without further information to satisfy the concerns previously expressed by her—–concerns that were based on the policies and objectives set out in the EPEA—–was clearly irrational. In reaching her ultimate decision, the Director failed to consider patently relevant factors necessary to the fulfilment of her statutory duty and thereby defeated the legislative scheme. The court held that the decision was “so flawed in terms of implementing the legislative intent, that no amount of curial deference can properly justify letting it stand”. For the same reasons, the court also concluded that the Minister’s decision was patently unreasonable.

The court ordered that the decision of the Director not to order an EIA was quashed and the matter was to be returned to the Director for determination in accordance with the legislation.

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