The Municipality of Hazelbrook was successful in its appeal to quash the ministerial decision to grant an excavation permit and a construction and demolition disposal site permit

Administrative law – Judicial review application – Permits and licences – Judicial review – Decisions reviewed – Ministerial orders – Standard of review – Patent unreasonableness

Hazelbrook (Municipality) v. Prince Edward Island, [2205] P.E.I.J. No. 9, Prince Edward Island Supreme Court – Appeal Division, February 16, 2005, J.A. McQuaid J.A., G.E. Mitchell C.J.P.E.I. and L.K. Webber J.A.

The Minister of Fisheries, Aquaculture and Environment issued an excavation pit permit under the Excavation Pit Regulations as well as a construction and demolition site permit under the Waste Resource Management Regulations to Maintenance Services Limited with respect to the use of its property. Hazelbrook applied pursuant to the Judicial Review Act R.S.P.E.I. 1988 Cap. J‑3, for a review of the Minister’s decision to issue the permits and to extend and finalize these permits. The reviewing judge denied Hazelbrook’s application.

Hazelbrook appealed the reviewing judge’s order and sought judicial review of the Minister’s decision to issue the excavation pit permit and the construction and demolition site permit.

The Appeal Division held that the reviewing judge had declared that neither permit was issued in compliance with the applicable regulation but despite this, he dismissed both applications for judicial review.

The reviewing judge chose the standard of patent unreasonableness. The excavation pit permit was issued by the Minister without having first received from the owner of the property a completed application form which was a requirement under the relevant Regulations. The reviewing judge correctly found that this was patently unreasonable. Moving on to the construction and demolition disposal site permit, the reviewing judge found that the Minister’s decision to issue it with conditions, and to allow the site to operate before all of the requirements of the relevant Regulations were met, was also patently unreasonable. Given the viewing judge’s decision that both permit issuances were patently unreasonable, the decisions were therefore clearly irrational and not in accord with reason. However, the reviewing judge refused to issue an order declaring these permits nullities. The reviewing judge misapplied section 6 of the Judicial Review Act. Section 6 reads:

6(1) An application for judicial review may be dismissed where

(a)  the sole ground for an order established is a defect in form or a technical irregularity; and

(b)  the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred.

 (2)  Where an application is dismissed pursuant to subsection (1), the judge may by order validate the decision of the tribunal notwithstanding the defect on such terms and with effect at such time as the judge considers appropriate.

The Appeal Division noted that under section 6 of the Judicial Review Act it is clear that relief should only be denied where the defect and the decision under review was one of form or technical irregularity and where no substantial wrong or miscarriage of justice resulted. The Appeal Division noted that a reviewing judge’s exercise of discretion to dismiss applications pursuant to section 6 of the Judicial Review Act should be entitled to considerable deference. However, in this case, the reviewing judge did err in his exercise of discretion under section 6 of the Judicial Review Act. He failed to consider the relevant factors and considered factors which were irrelevant. He reached an unreasonable conclusion when he denied Hazelbrook a remedy after it had established that the Minister acted without jurisdiction when he issued both of the permits.

The Appeal Division held that the requirement for a completed application form prior to the issuance of an excavation pit permit was an obvious requirement and the failure to fulfil that requirement made the issuance of the permit defective. This was something more than a mere defect in form or a technical irregularity which had been previously held to be something like a typographical error or an adherence with the substance of a process where an unintentional mistake as to the proper form existed.

The reviewing judge’s order was set aside and the excavation pit permit and the construction and demolition disposal site permit subsequent extensions and finalizations of the second permit were nullified.

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