Western Forest Products Inc. (“Western”) successfully appealed from a decision of the Sunshine Coast Regional District (“Sunshine”) acting as the Local Board of Health (“LBH”) whereby Western was required to stop certain forestry activities on the basis that LBH had reason to believe that the forestry activities resulted in a health hazard

27. November 2007 0

Administrative Law – Natural resources – Forestry – Timber licences – Environmental issues – Judicial review – Compliance with legislation – Standard of review – Correctness – Reasonableness simpliciter

Western Forest Products Inc. v. Sunshine Coast (Regional District), [2007] B.C.J. No. 2204, British Columbia Supreme Court, October 9, 2007, G.B. Butler J

Western sought to carry out timber harvesting in a portion of the Chapman Creek Watershed (the “Watershed”), which provides 90% of the drinking water for Sunshine Coast residents. A number of individuals complained that a health hazard would be caused by the activities of Western. The LBH held a five day hearing pursuant to s. 58 of the Health Act, R.S.B.C. 1996, c.179 (“the Act”). The LBH concluded that it had reason to believe the forestry activities resulted in a health hazard, and issued an Order prohibiting Western from harvesting on steep slopes of the Watershed, and limiting harvesting on the gentler slopes.

The Court applied the pragmatic and functional approach to the determination of the applicable standard of review on the appeal. The Act contains no privative clause, but permits an appeal and permission for the Court to vary or rescind an order on good cause shown. Sunshine was held to have no relative expertise in respect of health issues or legal issues, as compared with the Court. The Act serves the purpose of public protection from health hazards. The first two factors suggested less deference to the LBH, whereas the third suggested a more deferential standard of review.

The Court held that the appropriate standard of review on the question of whether the LBH applied the appropriate legal standard by which it could find a “health hazard” to be a standard of correctness, because the nature of that question is one of pure law, suggesting a somewhat searching standard of review. On the issue of whether the Order ought to be rescinded or varied because the conclusion that a health hazard existed due to Western’s forestry activities, the Court held that a reasonableness simpliciter standard of review applied because this was a question of mixed fact and law suggesting a more deferential standard of review.

The Act defines a health hazard as a condition or thing that endangers or is likely to endanger the public health. Under s.59 (1)(b), the reason to believe evidentiary standard applies, whereby the LBH must have sufficient credible information to give rise to a bona fide belief that a health hazard exists.

The Court held that although the reasons of LBH did not clearly specify how it interpreted the Act, the reasons demonstrate that it placed the onus on Western to establish that a health hazard did not exist, effectively reversing the onus in the case, without justification for doing so in the language of the Act.

The Court concluded that the wrong legal test was used, but that a consideration must also be given to whether the reasons as a whole provided tenable support for the decision. The Court held that the conclusion of LBH, that it had reason to believe that a health hazard existed as a result of the forestry activities was unreasonable, because the Reasons for decision failed to stand up to a somewhat probing examination. The Reasons failed to properly reflect that, among other things, the water treatment plant employees did not indicate any problem with water quality arising from excessive water flows, turbidity or forestry activities, the approval process was extensive and considered the impact of forestry activities in the Watershed, the expert evidence was not properly considered.

The Court held that the conclusion of LBH did to have a reasonable basis in the evidence. LBH accepted the evidence of non-expert lay witnesses in preference to an overwhelming body of uncontradicted expert evidence.

Although the Court did not decide the issue, the appealing test for considering whether there is bias on behalf of a regional district sitting as a local board of health under the Act is the “capable of persuasion” test that applies to municipal councillors. “Public health is an issue of wide-ranging public interest.” City councillors likely have to express views on issues of public health, and related issues such as the environment, industry and employment.

In the result, the Court rescinded the Order of LBH.

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