Yet another denial of standing found unlawful

02 Jun Yet another denial of standing found unlawful

Yet another denial of standing found unlawful

BC court favors environmental groups, but “public interest standing” remains out of reach.

In Gagne v. Sharpe a denial of public interest standing by the BC Environmental Appeals Board was found to involve unfair process, unnecessary requirements and impossible evidentiary standards. This decision is significant to environmental advocates in Alberta as similar hurdles to standing exist here and the decision rests on common law principles of broad applicability. Most notably the court found that duties of fairness owed to affected persons and the policy rationales behind public interest standing applied in the same case.

The flip side is that the court endorses a legislated restriction of standing without indicating how environmental advocates might actually qualify. The court found that “public interest standing” is not legally available despite recognizing that it could be an effective way to screen environmental appeals.  These statements were unnecessary to decide the case and they replicate prior questionable decisions.

For the media generated by this case see the University of Victoria Environmental Law Centre.  Lawyers appearing at provincial boards should definitely read the reasons for decision here: Gagne-oral BCSC per MacKenzie J.

Gagne leaves the dispute over who should represent public concerns at environmental boards in the middle of the road. Exclusionary regimes are becoming  increasingly hard to defend, especially where boards move the goalposts past the legislated baseline. Yet the courts are not exploring the applicability of common law public interest standing at administrative boards in any fulsome way.

A familiar scenario:

Facts are important to determining standing where the legislation requires that someone be personally affected or aggrieved. In Gagne an aluminum smelter in Kitimat received a permit to increase air emissions. This decision was challenged by six individuals, a regional environmental organization and a local stewardship society. Both of the environmental groups were legal entities.

The board made standing a “preliminary matter” to be determined on written submissions. It denied requests for a pre-hearing conference and particulars about the issues with standing. After final submissions were filed the board requested more materials from the proponent. This material was a technical report on the project that all parties referenced in their submissions on standing but was not filed into evidence yet. The board provided no notice of this communication with the proponent and or chance to respond to these particulars before its decision to deny standing.

Two individuals who lived in Kitimat were granted standing. The other individuals and organizations were denied.  Everyone denied standing had roots or homes in Terrace. (Terrace is the regional hub about 56km from Kitimat).

Regarding the two environmental groups, the board was not satisfied that members were persons aggrieved. It also found insufficient evidence that the challengers would be aggrieved on a “balance of probabilities”.

Some comparable law:

The BC legislation offered standing to a “person aggrieved”. This is like Alberta’s “directly and adversely affected” test as it requires evidence that a person’s rights or interests may be prejudiced.

The board had power to make its own procedural rules. The Board’s Procedural Manual stated that if the board obtains information that was not tendered by the parties then it must provide all parties with notice, the information, opportunities to make submissions and to respond to the information. It also stated that one can expect the board to follow the legislated procedures and the policies in the Manual.

A different decision?

The court primarily quashed the denial of standing for unfairness.  It also found that the incorporated groups could seek standing and that standard of proof required by the board was too high.

Fairness: The board breached its own rules by requesting extra records without providing opportunities to respond. This denial of right to a fair hearing invalidated the decision whether or not the challengers would have received standing through a fair process. The court did not find any deliberate misconduct on the part of the board but the duty of fairness was very high due to the importance of a standing decision on the person subject to it and the legitimate expectations that the board follow its own rules. Natural justice also involved the right to hear the other side and to respond.

While the Alberta courts have held that fairness requires providing a hearing to “directly affected” persons, the Gagne case affirms that the process by which standing is determined must also be fair. It is somewhat analogous to the finding of bias against Pembina institute in that regard.

Groups: The two environmental organizations could qualify for standing on their own. They could not be excluded on the basis that they were not persons. There was no requirement that individual group members be able to pass the “person aggrieved” test.

This decision should be especially helpful to incorporated groups that do not have members. However, it doesn’t remove the requirement that the corporate entity be personally prejudiced. The court conceded that environmental groups could find this harder to establish and provides no indication of where they might.

Standard of proof: The Court held that persons seeking standing must only show a “prima facie” case. The “balance of probabilities” standard is too rigorous at the preliminary stage of determining standing. This conclusion followed from consideration of the purposes of standing as set out by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence. While the Court distinguished that case as being about “public interest standing before a court” it accepted the relevance of several rationales for and against standing. These included the need to screen out busybodies while keeping the benefits of contending points of view.  The court further made the connection between standing and the role of the decision maker in finding that “the board must exercise its gatekeeper function in consideration of the principles related to access to justice and the board’s statutory mandate.” The court properly identifies the risks of prematurely dismissing potentially meritorious arguments and engaging in a defacto consideration of the merits of the case at the standing stage.

Gagne is yet another example of where boards struggle to apply standing tests that demand facts to prove legal interests instead of focusing on appropriate representation of the issues. It is like Court v. Alberta Environmental Appeals Board in that the board claims to set a low bar, then gets tangled up in evidentiary jargon and ultimately denies standing. Even the Supreme Court of Canada stumbled down that road in Canadian Council of Churches, claiming to take a “liberal and generous” approach to standing then proceeding to deny it to a group with no direct interest.

Gagne also leaves some uncertainty over whether standing is simply procedural matter or a substantive question of law. The answer can impact the bar for standing set by the board, the opportunity to appeal or review standing decisions in court, and the level of deference that the courts will provide the boards. The court found that standing was “clearly procedural”, but the board was applying the legislated test. In Alberta Wilderness Association v. Environmental Appeals Board the availability of common law public interest standing was a question of jurisdiction. So how would the courts treat a board that uses the common law test or rationales to conclude that someone is “aggrieved” or “directly affected” for the purposes of the legislation?

And by the way, “no public interest” standing:

Gagne is ahead of the Alberta courts in applying common law policy rationales in the context of a legislated test for standing at a board. However, it gravitated towards the rationales that support the type of rights-based standing enabled by the legislation. It definitely missed the point about busybodies in Downtown Eastside which was that this fear is “overstated”. Most disturbingly, the court accepts the argument that some aggrieved persons were granted standing and therefore “persons with less than aggrieved status or interests more remote are unlikely to contribute additionally to the matters at issue before the Board.”

In “obiter” (comments unnecessary to decide the case), the Court rejects the availability of common law public interest despite recognizing that it could help tribunals separate valid challengers from busybodies. These comments resemble Alberta Wilderness Association in several ways. The court finds that boards do not have the inherent jurisdiction of courts to grant public interest standing.  It largely misses the principle that boards have implied powers necessary to fulfill their mandates and that limits on powers should be clearly expressed.  Nor does the court explore the common law test enough to show a solid understanding of its purpose, function. These are unfortunate comments as common law public interest standing wasn’t the issue, and even if it was, the analysis would depend on the legislation in place.

The court did grasp the concern that narrow standing could foreclose meritorious appeals.  However, it concluded that a personal interest requirement and a low burden of proof should be sufficient to prevent this.  As for what makes one “aggrieved”, the court relies on provincial and arcane cases to emphasize a distinction between the challenger and the general public. This need to be ‘differently affected’ is basically the historic “public nuisance rule” for civil litigation. In that regard, Gagne is not far from the 1996 Alberta Court of Appeal cases of WMI Waste Management and Friends of Athabasca , which have rarely been followed. It is inconsistent with more recent cases like Kelly v. Alberta where there was no need to be “differently affected”.  How environmental groups can qualify under this regime as Gagne court suggests remains to be seen.

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