Judicial review inappropriate forum to make standalone challenges to set aside Crown Proceeding Act and Water Act

Administrative law – Decisions of administrative tribunals – Environmental Appeal Board – Hearing de novo – Judicial review application – Availability – Striking out

Lindelauf v. British Columbia (Attorney General), [2017] B.C.J. No. 733, 2017 BCSC 626, British Columbia Supreme Court, April 18, 2017, S.A. Donegan J.

Section 9 of the Water Act, R.S.B.C. 1996 c. 483, since replaced by the Water Sustainability Act then renamed the Water Users’ Communities Act, provided that the comptroller, a regional water manager, or an engineer could grant approval in writing authorizing conditions to allow a person to make changes in or about a stream, and this authorization could also be given to a minister of the Crown.

Water licence holders on Robbins Creek complained to the Ministry about a lack of water and improper diversions. The Ministry conducted studies and determined that there were unauthorized diversions of Robbins Creek. The Ministry applied for approval from the water manager to restore Robbins Creek to its original channel. The application was copied to various interested parties, including Lindelauf, and the Ministry also engaged experts and held a public meeting. The water manager considered all of the material and decided to issue the approval. The Ministry was permitted to undertake certain works to redirect the surface flow of Robbins Creek back to its original channel by a construction project on four different sites. Originally, the works were to be completed by the end of 2013, but an appeal to the EAB was brought, delaying construction.

Under s. 93 of the Environmental Management Act, S.B.C. 2003, c. 58 and s. 92 of the Water Act, the EAB is permitted to conduct an appeal through a hearing de novo. The EAB opted to have a new oral hearing, which took place over thirteen days. The EAB dismissed the appeals and confirmed the approval with two minor amendments.

Lindelauf then indicated that he wished to bring a judicial review of the EAB decision. The Court granted a partial stay of the approval pending filing of the application for judicial review.

Lindelauf filed his petition on September 26, 2016. He named the water manager and the EAB as respondents and also included several people as “participants” in his style of cause.

The pleadings on judicial review were extensive and the respondents brought an application to strike portions of the pleadings on the basis that most were beyond the scope of the Court’s jurisdiction on judicial review and had little prospect of success. The EAB is a specialized tribunal equipped to deal with the complex and technical nature of questions that may be raised before it. The EAB can receive new evidence and arguments that were not before the water manager and owes no deference to the water manager’s original decision.

On judicial review of an EAB decision, however, the petitioner is limited to making arguments about whether the process was fair, and a standard of review analysis. The Court must not substitute its view for that of the expert tribunal, and must not re-evaluate or re-weigh the evidence or otherwise usurp the function of the tribunal.

A Court also has the discretion not to consider an issue that is raised for the first time on judicial review if it is appropriate. Considerations include the potential loss of the tribunal’s expertise, unfair prejudice to the opposing party, and the lack of an adequate evidentiary record on the issue.

This application to strike portions of the judicial review pleading was brought under Rule 9‑5 of the Civil Rules. The test for striking a pleading is that a claim will be struck if it is plain and obvious, assuming the pleaded facts are true, that the pleading discloses no reasonable cause of action.

The Court then proceeded to review the pleadings. Several of the pleadings were struck because judicial review is not an appropriate form to make stand alone challenges to legislation. The petitioner’s attempts to challenge or set aside the Water Act or certain aspects relating to it, were struck for disclosing no reasonable claim.

The Court noted that the petitioner was welcome to argue constitutional issues raised before the EAB, and granted leave to the petitioner to amend his pleadings in that regard as basis upon which the Court could find the EAB came to an unreasonable or incorrect decision.

The petitioner also sought to cancel water licences belonging to two members of the public. These pleadings were struck for disclosing no reasonable claim.  These pleadings raised new issues that were not before the EAB and, as well, Lindelauf did not have standing to seek orders against these third parties. A Court must look at the statute under which the duty arises to see whether there is any express or implied right given to the persons in the position of the applicant to complain of an alleged unlawful act or omission. In this case, there was no duty of fairness owed to Lindelauf regarding decisions to cancel or sustain water licences of third parties.

Lindelauf also sought a number of document production orders and orders that particular members of the community attend at the petition hearing to give evidence. These paragraphs were struck. To entertain this type of relief on judicial review would usurp the fact finding function of the EAB.

The Court again allowed leave for the petitioner to amend this part of his pleadings if he wished to make arguments that the EAB denied him procedural fairness and/or came to an unreasonable or incorrect decision.

His claim for “fraudulently creating a ruse and fabrication” was struck. His claim to set aside the Crown Proceeding Act was struck for being an inappropriate stand alone challenge to legislation.

Lindelauf’s claims to seek orders regarding certain factual findings made by the EAB were also struck. Lindelauf was welcome to argue that the EAB’s conclusions regarding the water course were unreasonable but he would need to amend his petition in this regard.

The style of cause was also amended to remove the individuals Lindelauf had listed as “participants”. The leave granted to Lindelauf to amend his pleadings was for a 45-day period from the filing of this Court decision. Each party was to bear its own costs on the application and the Court noted that Lindelauf was a self represented litigant doing his best in an area of law that is challenging even for experienced lawyers.

To stay current with the new case law and emerging legal issues in this area, subscribe here.