Appeal No. 96-004

Date of Decision - March 21, 1996


IN THE MATTER OF Sections 84, 85, 86, and 87 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF
an appeal filed by Kanata Environmental Services Incorporated on Enforcement Order 96-03 issued by the Director of Pollution Control Division, Alberta Environmental Protection to Kanata Environmental Services Incorporated on February 9, 1996.

Cite as: Kanata Environmental Services v. Director of Pollution Control

PANEL MEMBERSHIP:

Joan C. Copp
M. Anne Naeth
John P. Ogilvie

BACKGROUND

On February 15, 1996, Kanata Environmental Services Inc., (the "Appellant") filed a Notice of Objection with the Board. The Notice of Objection appealed the decision of the Director of Pollution Control Division, Environmental Protection (the "Director") to issue Enforcement Order #96-03 (the "Order") to the Appellant. The Board notified the Director that the appeal had been filed and requested a copy of the Order and related materials.

On February 29, 1996, the Board received the materials requested from the Director by his Counsel. In accompanying correspondence the Director took the position that the Board did not have jurisdiction to review the Order as it was issued under s. 200(1)(d) and (e) of the Environmental Protection and Enhancement Act, (the "Act"). The Board forwarded this correspondence to the Appellant in care of its agent and invited the Appellant to comment on the Director's position.

By letter dated March 8, 1996, the agent for the Appellant responded to the Board and outlined why the Board should hear the appeal.

POSITION OF THE DIRECTOR

The Director's position is that the Board has jurisdiction under s. 84(1)(e) to review enforcement orders issued by the Director but only under s. 200(1)(a), (b) or (c) of the Act. The Kanata Order was issued under s. 200(1)(d) and (e). Therefore, according to the Director, it could not be the proper subject matter of an appeal and the Board has no jurisdiction to consider the appeal filed by the Appellant.

POSITION OF THE APPELLANT

The Appellant takes the position that the Board has jurisdiction to consider this appeal for the following reasons:

1. The Order falls within the intent of the Act which is to permit appeals;

2. The Director submitted to the jurisdiction of the Board by placing wording at the bottom of the Order stating the Appellant may have a right of appeal to the Board;

3. It would be contrary to the rules of natural justice to preclude an appeal to the Appellant because it has not pursued any of its other possible legal remedies of appeal; and

4. The Director acted in such a manner as to prejudice the Appellant in the proceedings and the appeal must proceed before the Board to preserve the rights of the Appellant.

DECISION OF THE BOARD

The Order was issued under s. 200(1)(d) and (e) of the Act. S. 200(1) states:

200(1)  Where in the Director's opinion a person has contravened this Act (except section 169, 170, 171, 172 or 173) the Director may, whether or not the person has been charged or convicted in respect of the contravention, issue an enforcement order ordering any of the following:

(a) the suspension or cancellation of an approval or certificate of qualification;

(b) the stopping or shutting down of any activity or thing either permanently or for a specified period;

(c) the ceasing of the construction or operation of any activity or thing until the Director is satisfied the activity or thing will be constructed or operated in accordance with this Act;

(d) the doing or refraining from doing of any thing referred to in section 102, 114, 125, 135, 143, 149, 152, 174 or 227, as the case may be, in the same manner as if the matter were the subject of an environmental protection order;

(e) specifying the measures that must be taken in order to effect compliance with this Act.


The right of appeal to the Board lies under s. 84(1)(e):

84(1)  A notice of objection may be submitted to the Board by the following persons in the following circumstances:

(e) where the Director issues an enforcement order under section 200(1)(a), (b) or (c), the person to whom the order is directed may submit a notice of objection;

The Order issued by the Director does not deal with any of the matters raised in subsections (a)(b) and or (c) of 200(1). The Board concludes that the intent of the legislation is set out in s. 84 (1)(e) of the Act, which limits the rights of appeal to those orders issued under s. 200(1)(a), (b) and (c). Therefore, there is no right of appeal to this Board for this Order.

The Appellant has provided two additional reasons why the Board should consider this appeal:

1. The Director included the following wording at the bottom of the Order which could have the effect of granting the right of appeal to the Appellant:

Section 84 of the Environmental Protection and Enhancement Act may provide a right of appeal against this decision to the Alberta Environmental Appeal Board (W. A. Tilleman, Chair). There may be a strict time limit for filing such an appeal. A copy of section 84 is enclosed. For further information, please contact the Board Secretary at #400 Alberta Treasury Branches Plaza, 9925 - 109 Street, Edmonton, Alberta, T5K 2J8; telephone (403) 427-6207; fax (403) 427-4693; and

2. The Appellant, having relied on the Director's indication that there may be a right of appeal, has lost any other remedies it might have at law by relying on the appeal to this Board.

In response to the arguments set out above, the Board rejects both of these positions. It is clearly stated in the Act that an order issued under s. 200(1)(d) and (e) is not appealable. Therefore no statement by a director or otherwise can grant a right to appeal that has not been authorized by legislation. It may be possible for a director to issue an enforcement order which should be issued under s. 200(1)(a), (b) or (c) and call it an order issued under s. 200(1)(d) or (e). If this occurred, the Board could consider an appeal. This appeal, however, does not fall into this category. Its subject matter clearly falls within s. 200(1)(d) and (e), for which there is no appeal.

In response to the Appellant's second argument, the jurisdiction of this Board is set out in Part 3 of the Act. The Board does not have original jurisdiction to deal with common law claims. Additionally, the Board does not have authority to give jurisdiction to Appellants who have not taken steps to preserve their legal rights and remedies. While the Board may be sympathetic to an Appellant who has put "all of his eggs in one basket," it cannot consider an appeal because the Appellant made a mistake in its choice of remedies.

CONCLUSION

The appeal is therefore dismissed.

Signed and Dated March 21, 1996 at Edmonton, Alberta.

Joan C. Copp

John P. Ogilivie

M. Anne Naeth

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