The Court dismissed an appeal by the Petitioner from the dismissal of its application for judicial review of the process that culminated in the issuance to the Respondent developer of an Environmental Assessment Certificate. The Court found that the Chambers Judge had not erred in finding that the Environmental Assessment Office (EAO) had not breached its duty to provide procedural fairness in the environmental assessment or in finding that the EAO’s agent had afforded the Petitioner a meaningful hearing.

27. February 2007 0

Administrative law – Environmental issues – Environmental Assessment Certificate – Hearings – Conduct of hearings – Judicial review – Procedural requirements and fairness – Natural justice – Bias

R.K. Heli-Ski Panorama Inc. v. Jumbo Glacier Resort Project, [2007] B.C.J. No. 16, British Columbia Court of Appeal, January 8, 2007, Saunders, Levine and Smith JJ.A.

The Respondent has been seeking, for many years, to build a year-round ski resort on Crown land in south-eastern British Columbia’s Purcell Mountains. The Appellant is the operator of a heli-skiing business on the affected Crown land and an opponent of the Respondent’s project since its inception.

The Appellant had applied to the B.C. Supreme Court pursuant to the Judicial Review Procedure Act for an order quashing the issuance to the Respondent of an Environmental Assessment Certificate, alleging bias and a denial of procedural fairness in the administrative procedures that led to the Ministers’ decision. That application was dismissed and the Appellant now sought to set aside the Supreme Court’s judgment and to substitute an order quashing the issuance of the Certificate and remitting the matter for a reconsideration of the environmental assessment. The only issue on appeal was the reviewing Judge’s decision that the Appellant had been given a meaningful opportunity to be heard in the investigative process antecedent to the Ministers’ decision.

The impugned decision in this case was made by the Ministers of Sustainable Resource Management, of the Small Business and Economic Development, and of Water, Land and Air Protection. The Appellant was not suggesting that the Ministers failed to afford it procedural fairness. Rather, the Appellant submitted that their decision is fatally flawed because the EAO failed to do so. The Court held that the obligation to provide a fair hearing is not always confined to the actual decision-maker. It also extends to public bodies, like the EAO, whose function is to investigate and make recommendations to the decision-maker.

The Appellant first submitted that the EAO breached its duty to provide procedural fairness in the environmental assessment process by failing to require its agent to afford the Appellant a meaningful hearing. The EAO’s agent, Sierra, had prepared a report which was a critical foundation for the EAO’s recommendation and, consequently, for the Ministers’ decision. The Appellant argued that the failure of Sierra to properly hear the Appellant’s case infected the whole process with procedural unfairness. The Court held that in fact the Appellant had been given an opportunity to respond to the report and did respond. The Court dismissed the Appellant’s first submission.

The Appellant next argued that its legitimate expectations had not been met. One of the relevant factors in a consideration of procedural fairness is whether the person affected had any legitimate expectations as to the procedures to be followed. If there were such expectations based on a regular practice of the tribunal or on an express or implied representation that certain procedures would be followed, procedural fairness might require that the expected procedures be adopted.

The Court found that there were no such legitimate expectations by the Appellant in this case. New procedures had been enacted in 2002, which were to replace those that were in effect during the first several years of review of the Glacier project. It was clear that the legislative purpose was to eliminate delay and to expedite the review of applications. The suggestion that the Appellant had a legitimate expectation that procedures existing under the old regime would continue was not credible. In the result, the Court rejected this submission.

Finally, the Appellant argued that the Chambers Judge had erred in concluding that the breach of procedural fairness occasioned by the EAO’s forwarding its assessment report and recommendations to the Ministers before receiving the Appellant’s comments on the Sierra report had been cured by the late delivery of those comments. That a fresh hearing can remedy an earlier breach of procedural fairness is a question of law on which the Appellant conceded that the Chambers Judge was correct. That the “fresh hearing” in this case cured the earlier breach, was a finding of fact that could be supported on the evidence that was before the Chambers Judge. There was no error of fact that would permit the Court of Appeal to intervene.

The Court of Appeal further agreed with the Chambers Judge’s finding that, if there were any breaches of procedural fairness in this case, they amounted to technical irregularities and no substantial wrong or miscarriage of justice had occurred. The opportunities afforded the Appellant to put forward its views and its evidence were fully sufficient to meet the requirements of natural justice.

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