Appeal No. 97-064

Preliminary Meeting: February 4, 1998
Date of Decision: February 11, 1998

IN THE MATTER OF Section 84, 85, 87, 89, and 90 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 Danadam Consulting Incorporated with respect to Application No. BC 97-0019/Approval No. 97-BCD-036 issued by the Director of Chemicals Assessment and Management Division, Alberta Environmental Protection.

Cite as: Danadam Consulting Incorporated v. Director of Chemicals Assessment and Management Division, Alberta Environmental Protection.

 

PRELIMINARY MEETING BEFORE


Dr. M. Anne Naeth, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck

APPEARANCES

Appellant: Mr. Brian Sussman of Biamonte Cairo and Shortreed representing Mr. Colin Mowat of Danadam Consulting Incorporated (the Appellant) and the Quick Stop Bottle Depot (Intervenor supporting the Appellant)

Department: Ms. Joanne Esbaugh representing the Director of Chemicals Assessment and Management Division, Alberta Environmental Protection and Ms. Jean-Eve Mark, Action on Waste Branch, Alberta Environmental Protection

Other Parties: Ms. Wendy Danson of McCuaig Desrochers representing Mr. and Mrs. Csuti

TABLE OF CONTENTS

FINDINGS OF FACT  1
I. BACKGROUND 1
II. THE PRELIMINARY MEETING 2
III. ISSUES TO BE DECIDED 2
IV. SUMMARY OF THE MATTERS PRESENTED AT THE MEETING 3
A. The Jurisdiction of the Board  3
B. The Status of the Appellant  4
C. Expediting of the Hearing 5
D. The Granting of a Stay 5
V. CONSIDERATIONS OF THE BOARD  6
DECISION  8

 

FINDINGS OF FACT

I. BACKGROUND

[1] On December 23, 1997, Mr. Brian Sussman on behalf of Danadam Consulting Incorporated (Appellant) filed a Notice of Appeal with the Environmental Appeal Board (the Board) with respect to Approval No. 97-BCD-036 issued to Stanley S. Csuti and Sharon A. Csuti for the operation of a Beverage Container Depot operating as Callingwood Bottle Depot. The Approval was issued by Mr. Jerry Lack, Director of Chemicals Assessment and Management Division, Alberta Environmental Protection on November 28, 1997.

[2] The Appellant in its Notice of Appeal applied, pursuant to section 89(2) of the Environmental Protection and Enhancement Act, (Act) for a Stay of the Decision of the Director.

[3] The Board wrote to Mr. Sussman on December 23, 1997, acknowledging receipt of the appeal and by copy of that letter requested all related correspondence, documents and materials from the Department of Environmental Protection (Department).

[4] On January 14, 1998, Ms. Wendy Danson, counsel for Mr. and Mrs. Csuti, wrote to the Board requesting that this matter be dealt with on an urgent basis and a hearing set at the Board's earliest opportunity. She informed the Board that the approval granted required her clients to have commenced operation by March 1, 1998, and that her clients' option to lease the premises required pursuant to that approval extended only until March 1, 1998.

[5] The Board informed Ms. Danson that they were not able to make a decision on her request until the Board received all related correspondence, documents and materials from the Department. All requested correspondence was received from the Department on January 22, 1998.

[6] On January 29, 1998, the Board wrote to all parties informing them that a preliminary meeting would take place on February 4, 1998, in Edmonton. The Board also notified Mr. Norman Nixdorf of the Quick Stop Bottle Depot and Mr. Ray Tymko of the Alberta Bottle Depot Association that the preliminary meeting would take place since they had each filed statements of concern regarding Application No. BC 97-0019.

II. THE PRELIMINARY MEETING

[7] The Board held a preliminary meeting on February 4, 1998, in Edmonton to deal with the following:

1. The jurisdiction of the Board to hear the issues raised by the Appellant and, accordingly, whether or not the Board should proceed with consideration of this appeal;

2. The directly affected status of the Appellant;

3. The issue of expediting the hearing; and

4. The issue of the request for a Stay.

[8] This meeting was held pursuant to sections 87 and 89 of the Act.

III. ISSUES TO BE DECIDED

[9] The first issue to be decided is whether the Board has jurisdiction under the Act to hear the appeal. If it does, the next issue is to decide if the Appellant is directly affected and therefore has status before the Board. If the Appellant is directly affected the Board must determine whether or not to grant a stay and/or expedite the hearing to deal with the Appeal.

IV. SUMMARY OF THE MATTERS PRESENTED AT THE MEETING

[10] The issues are summarized as they were dealt with at the meeting.

A. The Jurisdiction of the Board

[11] Mr. Sussman states that the legislation makes it clear that the Board does have the right to hear this appeal. He noted that the Director's position was dissolved on December 1, 1997, with the coming into force of the Beverage Container Recycling Amendment Regulation (Alberta Regulation 116/97). However, Approval No. 97-BCD-036 was issued prior to that date, on November 28, 1997. Mr. Sussman argues that since the issuance was prior to the date the Regulation came into force, the Approval is appealable to the Board under the legislation.

[12] Ms. Esbaugh cited the Interpretation Act (RSA 1980, ch. I-7) section 32(1)(f)(1) which may be interpreted to say that since the new Regulation has no provision for appeal of a permit (in this case an approval) then the provisions of the repealed Regulation and the Act must be applied in transitional cases such as this one. Therefore, she believes that the appeal is legitimate and the Board has jurisdiction to hear it.

[13] Ms. Danson argues that the government consciously made a philosophical change in the way it regulated bottle depots. Prior to December 1, 1997, the operation of a bottle depot was an activity for which an approval was required (Activities Designation Regulation 110/93). The new Regulation removed the requirement and substituted permit for approval. She argues that as of December 1, 1997, the Approval became a permit and, as such, is not appealable. Further, she argues, after December 1, 1997, the Director no longer had the right to write the letters notifying those who had submitted statements of concern that an approval had been issued as it was no longer an approval. She concludes, that, since there is no legitimate appeal, the Board does not have jurisdiction.

B. The Status of the Appellant

[14] Mr. Sussman reported that Danadam Consulting Incorporated does not hold the approval to operate the Centennial Bottle Depot nor does it own the building in which it operates. It leases the building from the approval holders, Hyun Soo Won and Bong Ja Won. Mr. Sussman said that Mr. Mowat acts as the operator and manager of the depot. Under the terms of the lease all the revenue from the operation of the depot flows to Danadam. Mr. Sussman contends that the revenue of the Centennial Bottle Depot will be reduced by the operation of the Callingwood Bottle Depot and, therefore, the operator, Danadam will be directly affected by its opening.

[15] Mr. Sussman also notes that the Approval refers to an incorrect address for the Callingwood Bottle Depot in that, what should be 6655 - 177 Street, reads 6655 - 177 Avenue, and; therefore, is null and void.

[16] Ms. Esbaugh cites the decision of the Board in the Dr. Martha Kostuch appeal(2) and contends that, according to the definition of directly affected used by the Board in that decision, the Centennial Bottle Depot and its operator is not directly affected. She further notes that if there is an economic effect as a result of the Approval being issued (which is not admitted by the Director), that this effect will be experienced by the owners of Centennial Bottle Depot as a decline in the volume of containers collected and in their overall profits. In answer to a question by the Board Ms. Mark confirmed that the proposed Callingwood Bottle Depot would be located 4.5 kilometers from the Centennial Bottle Depot.

[17] The Board asked Ms. Esbaugh and Ms. Mark if there was information on file at the Department indicating that the Department recognizes that Danadam Consulting Incorporated is the Operator and Mr. Mowat is the Manager of the Centennial Bottle Depot although neither holds the approval for the depot. Ms. Mark filed Exhibit No. 8, a letter to Ms. Mark signed by Mr. Won and Mr. Mowat, advising that "as of October 1, 1992, DANADAM CONSULTING INCORPORATED, a management company, will be taking over the management, staffing and day-to-day operation of the CENTENNIAL BOTTLE DEPOT". Under questioning by the Board, the Department was not able to clarify the relationship between the approval holders, Mr. and Mrs. Won, and either Danadam or Mr. Mowat.

[18] Ms. Danson argued that because neither Danadam or Mr. Mowat held an approval for the Centennial Bottle Depot, neither could properly appeal the approval and, further, that the Board should decide if they were operating illegally. She says that, if the Board so decides, the Appeal would be ultra vires and should not be heard. In any event, since the Centennial Bottle Depot is more than 3 kilometers from Callingwood, it is not directly affected.

C. Expediting of the Hearing

[19] All participants approved of an expedited hearing. Ms. Danson suggested that, in the interests of moving quickly, the Board hold a written hearing rather than an oral one. Mr. Sussman objected to a written hearing. When Mr. Sussman learned that Ms. Teichroeb could only attend a hearing on certain dates and might have to be examined by means of tele-communication devices, he objected. If a hearing is held he asked that Ms. Teichroeb be present at the hearing in person.

D. The Granting of a Stay

[20] Mr. Sussman argues that the Board should grant the request for a Stay because if it does not the Callingwood Bottle Depot may start up and affect the business of other depots. Also, if the Callingwood Bottle Depot starts operation and then the Appeal is allowed by the Board and it has to shut down, this will affect the public's view of bottle depots.

[21] Ms. Esbaugh advised the Board that the Director does not take a position as to whether a Stay should be granted. She noted that if the Board decides to expedite the hearing of the Appeal, that this may obviate the need for a Stay.

V. CONSIDERATIONS OF THE BOARD

[22] Considering the jurisdiction of the Board to hear the Appeal in the light of the change in the method used to grant permits rather than approvals to new proposed bottle depots, the Board agrees with Ms. Esbaugh that, under section 32(1) of the Interpretation Act(3), the provisions of the Act apply to this appeal. However, having said this, the Board believes that before determining whether to hear the Appeal it must decide if the Appellant is directly affected.

[23] In previous cases, the Board has taken the position that, to prove that the appellant is directly affected, the appellant must show that the effects upon it are greater than on the general population(4). The Board has also ruled, in dealing with bottle depots, that the effects may be economic as well as environmental. Section 2(b) of the Act sets out the principles and intentions underlying this Act. It states:

2 The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following:

...

(b) the need for Alberta's economic growth and prosperity in an environmentally responsible manner and the need to integrate environmental protection and economic decisions at the earliest stages of planning; ... .

In Castledowns Bottle Depot Ltd. v. Acting Director of Action on Waste Division, Alberta Environmental Protection, the Board stated:

...The appellant inferred that the Director, in approving the application, did not give full recognition to the intent of the Act. The Board disagrees. By examining the population base of the area to be served, its growth potential and the location of the depot in relation to other depots, the Director acted reasonably because he took into account both environmental and economic factors. Environmental factors, because if there are not enough proper receiving facilities the recycling program will fail with the resulting detrimental effect on the environment. Economic factors, because if there are too many receiving facilities they will not survive.

The Director, in the Board's view, took into account and carefully considered both environmental and economic matters in making his decision to approve the application and, therefore, abided by the requirements of the Act... .

[24] From an environmental perspective, the Board does not believe that the Centennial Bottle Depot or Mr. Mowat would be affected by the operation of the Callingwood Bottle Depot. Therefore, the question becomes: is there an economic effect? The Board believes that when a new bottle depot commences operation in a city there may be some initial decline in the business of all the depots therein. Certainly, there is more likely to be an effect on those in the same section of the city. Centennial Bottle Depot could, in this scenario, suffer some reduction in business with the opening of the Callingwood Bottle Depot. However, the Board has difficulty seeing how this effect is much different from that of other depots in Edmonton. The Centennial Bottle Depot is not affected more than the general population of bottle depots in Edmonton. The Board concludes that neither the Centennial Bottle Depot nor Mr. Mowat is directly affected by the issuance of Approval No. 97-BCD-036 by the Director to the Callingwood Bottle Depot.

[25] Regarding Mr. Sussman's allegation that the Approval is invalid because the address given for the Callingwood Bottle Depot is incorrect, the Board believes that administrative or clerical errors(5) are normally subject to legislative correction, or correction on review. A clerical error involving an address should not invalidate an approval.

[26] Pursuant to ss. 84 and 87(5)(a)(i.1), the Board concludes that the Appellant is not directly affected and dismisses the appeal. Thus, there is no need to further consider the matters of expediting the hearing and the granting of a Stay.

 

DECISION

[27] The appeal is dismissed.

Dated on February 11, 1998, at Edmonton, Alberta

Dr. M. Anne Naeth
Dr. John P. Ogilvie
Mr. Ron V. Peiluck

 


Footnotes

1. 32(1)(f) "... any reference in an unrepealed enactment to the repealed enactment shall, with respect to a subsequent transaction, matter or thing, be construed as a reference to the provisions of the new enactment relating to the same subject-matter as the repealed enactment, but if there are no provisions in the new enactment relating to the same subject-matter, the repealed enactment shall be construed as being unrepealed in so far as it is necessary to maintain or give effect to the unrepealed enactment."

2. Dr. Martha Kostuch v. Director, Air and Water Approvals Division, Alberta Environmental Protection (August 23, 1995), No. 94-017.

3. See footnote 1.

4. See footnote 2.

5. Section 67(3)(c) of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended) states:

67(3) If the Director considers it appropriate to do so, the Director may on his own initiative in accordance with the regulations

(c) correct a clerical error in an approval or registration.

 

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