I
Prince George, B.C.13June 1997
IN THE SUPREME COURT OF ~RITISH COLUMBIA
. (INCHAMBEtl
No. 00732· No. 91282Prince George Registry Princ George Registry
BETWEEN:
DEPUTY DIRECTOR OF THEWILDLIFE BRANCH OF THEMINISTRY OF ENVIRONMENT, LANDSAND PARKS OF THE PROVINCE OFBRITISH COLUMBIA
BET EEN:
(PETITIONER) (PETITIONER)
AND: AND:
ENVIRONMENTAL APPEAL BOARD D~PUTY DIRECTOR OF THE WILDLIFEand LYNNROSS B~NCH OF THE MINISTRY OF
E~VIRONMENT, LANDS AND P.ARKSOf THE PROVINCE OF BRITISHCl LUMBIA
(RESPONDENTS) (RESPONDENT)
REASONS FOR JUDGMENT
OF
MR. JUSTICE T OR
H. M. GROBERMAN, Esq.,M. DURANDO, Esq.,D. E. M. JENKINS, Q.C.,
for DeP:1ty Directorfor Envircnmental Appeal Boardfor Mr. ass
THE COURT:(Oral) This is a petition of the D1eputyDirector of the Wildlife
Branch acting in his capacity as a Regional Manager pursuant to Section
100 of the WildlifeAct, which I hereatter refer to as the Act, and Section
23 of the Interpretation Act for a review under the provisions of the
Judicial ReviewProcedure Act of an ord1ermade by the Environmental
Appeal Board on the 14th of February of 1997.
A brief history of this matter is necessary for an
understanding of the issues raised on this review. The Respondent Lynn
Ross in 1993 was licenced and certified as a guide outfitter pursuant to
the provisions of the Act. On the 26th of May of 1993, the regional
mrager for the Northern Region reneJrd Mr. Ross's licence and at the
same time gave him notice that there would be a hearing conducted by
the Deputy Director pursuant to section 62 of the Act to determine if he
should continue to hold the PriVilege.oflbeinga guide outfitter and, until
~at heanng was completed, an application by Mr. Ross to transfer hIS
licence would not be considered.
I Mr. Ross applied fora judicial review of that decision to hold
that hearing and to subsequently not atiourn it. Ultimately that
aJplication was dismissed on the 26th of October of 1993, and an appeal
from that decision was dismissed as abl ndoned in March of 1996.
I On June the 24th, 1993, notwithstanding the application to
which I referred to by Mr. Ross to adjoJrn the hearing, the Deputy
Director held a hearing under Section d2. Mr. Ross, unsuccessful in his
abplication to adjourn that hearing, dellined to participate. On the 1st
01 September of 1993, the Deputy Diredtor rendered his decision which
was that Mr. Ross' guide outfitter licenie was suspended and his
certificate was cancelled. However in order to permit Mr. Ross anI
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opportunity to shut down his operati01s in an orderly manner and not to
leave any clients stranded in the field, the Deputy Director ruled that his
decision was to be effective in two weeks time following the 1st of
September of 1993. In doing so, he sail;
To accommodate clients that may be in the field or in transit,
the suspension and cancellation will be effective September
15, 1993. I do not conside~ proper any consideration of
transferring the territory prior to the suspension and
cancellation taking effect. (Quoted as Read)
'" IRoss filed an appeal from that decision. That appeal was pursuant
to Section 101(5) of the Act. The appeal was heard by the Environmental
Appeal Board on the 23rd and 24th of October of 1996. At that appeal,
delpite the fact that Mr. Ross had absented himself from the hearing
beJJre the Deputy Director in June of 1993, the Board permitted Mr.
ROfs to lead and give evidence. During the hearing of the appeal Mr.
ROrSconceded that the Deputy Director, having found some sixteen
Violations or allegations of misconduct las established, could properly
carbel the certificate. The Environmental Appeal Board dismissed most
of r. Ross grounds of appeal, and on the 14th of February of 1997 it
concluded its decision, and I quote,
"It is the decision of this panel that the Deputy Director: 1)·
Was not biased and properly exercised his discretion in
.deciding to cancel Mr. Ross' certificate and to suspend his
.licence; and 2) Erred in law by deciding an issue not
properly before him, thereby fettering the ability of the
regional managers to exercise an independent discretion.3
,
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Accordingly the matter is se nt back to the Deputy Director
with the following directionl 1) The Deputy Director shall
renew the Appellant's gUid~outfitter certificate for a period of
ninety days to allow the Appellant to file a formal application
for transfer of the said cer~ficate; 2) the Deputy Director (or
the Regional Manager if th1 Deputy Director so delegates)
shall decide whether to authorize a transfer and the
conditions of any such trarisfer, If the Appellant fails to file a
transfer application or, hav~ng filed one, is denied the
transfer, the certificate will cease to exist."
(Quoted as Read)
The issues raised on this review are sta ed as follows: 1) That the
Environmental Appeal Board erred in law and jurisdiction in its
interpretation of the comments of the Deputy Director respecting the
transfer of Mr. Ross' licence and, 2) if tie Environmental Appeal Board
was correct in the interpretation of the comment of the Deputy Director
respecting transfer, was it within his jutSdiction when it ordered the
ni ety day period.
The relevant provisions of the Act respecting appeals from
the decisions of the Deputy Director when functioning as a Regional
Manager are found in Sections 101(5) (l) and 101(10) (a) and (b), which
arei as follows:
(5) (a),
"If the Director exercises thr powers of a regional manager in
respect of the matters referred to in su?section (1), the
person aggrieved by the de4ision may appeal the decision of
the Director to the Environbental Appeal Board,"
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Andunder subsection (10), I"In an appeal th~ Environ1ental Appeal Board may (a)
dismiss the apP9al or (J) send the matter back to the
. . Regiorlal Manag~r or Direcjor with directions."(Quotedas Read)
III t .As will be noted from subsection (10), he powers of the EnvironmentalI .
Appeal are l.imited in terms o~what tha, Board ca~ d~. As well the Board
does not enjoy a statutory shield by way of any privative clause thatI
limits or restricts judicial revievyof its decisions. While it performs
various functions arising out ofldiffeJ1eJtActs, the Act does not contain
such a provision, nor is the Board 01" lbout which it can be said has
some superior expertise thatlextendslt1 questions oflaw. Thus a review
of its decisions must he done' on the Jsis of correctness rather than theI
standard of reasonableness. Attorne, General of Canada v. Mossop
[19931 100 D.L.R.(4th) 658 and 676. Jowever what I have just referred
to does not mean to say thatlsuch dl'SlOns of the Environmental Appeal
Board should not be regardek with ar1hing but respect.
Counsel for the Director ~rgues that what the Deputy
Director said does not form part of hls ~rder, and that the true effect of
that decision w.as to suspend and C,+l and to make it effec.tivefourteen
days hence. So arguing, it is submitroi the Deputy Director simply
expressed a view that, in the event 0ta transfer application, he would not
consider proper any consideration of a iransfer during that fourteen day
period. Thus, it is argued, the Depu Director simply emphasized the
purpose of the fourteen day hiatus, thJt is, to permit an orderly
shutdown. The position of the; ~irecJo1 then is that these words do not
form part of the order respecting trtnsffer, a subject matter that was not
then before the Director.I 5
Counsel for Mr. Ross argues that what the Board did was to
interpret the words of the Director to ddtermine the effect of the order
made. The result of that mterpretation] it is argued, is that the Board
concluded the Director had given a rigJt of transfer and all the Board did
was to expand the time period for the ,ansfer to ninety days. Mr.
Darando says that there were two interpretations of what that passage
that I quoted from the Director meant, knd the Environmental Appeal
Board determined what it was the Diredtor wanted, that is to say dealing
with a right of transfer. The effect of t+ decision, if what in fact the
Director said was in reference to a transfer was in order, was a substitute
of the Director's order whereby it fixediperiod of time in which the
transfer could be applied for from fourteen to ninety days by ordering the
reinstatement for a period of ninety da+ that it did.
The powers of the Environmental Appeal Board, as I have
noted, are very limited under the appeJl provision of Section 101 (5) and
101 (10). As noted by Madam Justice 7uddart, as she then was, in
Olson v. Walker, Duncan Registry 228, August 21, 1989, the powers of
the Appeal Board do not include the porer to substitute its opinion for
that of the Deputy Director or, in this case, where he functions as a
regional manager. It simply has no poler under its enabling legislation,
being Section 101(10), from which it de~ives such authority to substitute
a different opinion for that rendered by the Deputy Director. No issue
arises on this appeal as to whether the Director properly exercised his
powers on the basis that the cancellation or suspension was conceded.
In my opinion, it is necessJry only to deal with the first
issue. The words of the Directorl permJ in my view, only one
interpretation, that is the SUsP+sion a~d cancellation was to be
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suspended effective the 15th of Sleptemlberof 1993. He then said that he
did not consider proper any consideration of transfer of the territory prior
to' suspension and cancella.ti~n tlking lffect. Given what he had just
said about the reasons for the twr weeJ period, which was to permit Mr.
Ross an opportunity to shut down his Jperations in an orderly manner,
all the Director was doing in my lpiniolll was to impart that, should a
transfer application be made, it ,10Uld !lOtbe proper to give the
.application consideration given that he otherwise would have made his
order effective forthwith. One mJst be mindful that the order under
Section 61(a) to suspend or cancl1 is in fact punitive. Mr, Ross conceded
conduct that gave rise to that ty+ of 01der. To permit a transfer within
the two week period would unde1mine the sanction imposed.
In my view, the Enviionmental Appeal Board erred in
concluding that the fourteen day Iperiod discussed by the Deputy
Director in terms of transferring was an order of the Director. It was not
and, as such, it is not a matter tfat was properly before the Board for its
consideration. If anything, it was a direction in the event of a transfer
application that might be made during 11that period of time. It follows that
the order of the Environmental Appeal Board was not within the
jurisdiction of the Board to mak1' The lorder of the Environmental
Appeal Board of the 14th of February of 1997 is quashed, and the order1 11 .
of the Deputy Director made the 1st of September of 1993 is confirmed.
The Director is entitled, if it so seeks, its costs with respect
to this hearing on a scale 3. 11
I take from the comments <ofcounsel that the order for
mandamus in the other separatelmatt~lr brought by Mr. Ross to be
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dismissed without costs.
If my understanding is other than yours, Mr. Darando,
please let me know.
MR. DARANDO.
THE COURT:
That's acceptable, My Lord, thank you.IThank you, gentlemen.
23 June 1997/ slm
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