The Person Aggrieved vs. The Busybody | Standing When Challenging Decisions

In 2014, the British Columbia Supreme Court was asked (in Gagne v British Columbia, 2014 CarswellBC 3312, 2014 BCSC 2077), once again, to rule on the issue of “standing”.

Standing, from the Latin locus standi, determines whether a person has the right to bring a legal action. That person has to be sufficiently effected or harmed by an action or law in order to bring an legal claim. That person should not, however, be a “busybody”.

First, some background. On April 23, 2013, the Director of the Northern Region of the B.C. Ministry of Environment (the “Director”), granted an amendment to a multi-media permit, which increased the allowable daily emission of sulphur dioxide from 27 tonnes per day to 42 tonnes per day from an aluminum smelter operated by Rio Tinto Alcan (“Rio Tinto”) in Kitimat, B.C. This amendment was authorized in connection with Rio Tinto’s modernization of its Kitimat smelter.

This amendment was challenged by six individuals, the Skeena Wild Conservation Trust (the “Trust”), and the Lakelse Watershed Stewards Society (the “Society”). Two residents of Kitimat, B.C., were granted standing by the Environmental Appeal Board (the “Board”). Of those denied standing, four (including the Trust and the Society) petitioned the British Columbia Supreme Court for an order directing the board to grant them standing.

Ultimately, the British Columbia Supreme Court set aside the Board’s decision and directed the Board to reconsider whether the petitioners were “persons aggrieved”.

The Court found:

– that there was no doubt that the amount of sulphur dioxide emitted into the atmosphere was subjectively of significant importance the petitioners, and indeed the public in general;

– that the Trust and the Society “cannot be summarily excluded from the possibility of being a person aggrieved on the basis that they are not persons”.

– the burden on an applicant when applying for standing must only involve demonstrating to a prima facie (“at first sight”) standard that they are a person aggrieved, not a “balance of probabilities”. Note: a prima facie standard is lower, and therefore easier to achieve, than a balance of probabilities.

– a person aggrieved must demonstrate some form of prejudice to their individual interest, albeit only on a prima facie basis.

In addition to its comments on “persons aggrieved” and the test for determining standing, the Court also determined that the Board must rigorously comply with its own procedure manual. It did so because it found that, following the conclusion of written submissions in relation to the standing hearing, the Board requested extra records from Rio Tinto in breach of its own procedural manual.

Despite the fact that it was evident that the Board and Rio Tinto had acted in good faith throughout the “standing” proceeding, the Board’s breach of its own procedural manual had seriously breached the petitioners’ right to procedural fairness.

Following on from this decision, the Board then reconsidered the petitioners’ application for standing. The Board first noted that the test to establish standing as a “person aggrieved” is:

– Whether the person has disclosed sufficient information to establish, objectively and on a prima facie basis, that the appealed decision prejudicially affects the person’s interests.

Regardless, however, the Board found that none of the petitioners were “persons aggrieved” and, ultimately, the petitioners efforts were all for naught. The common reason appears to be the Board’s determination that Rio Tinto had provided unchallenged information that, under the Permit amendment, the level of sulphur dioxide emissions was predicted not to exceed BC Provincial Pollution Control Objectives outside of Kitimat and that the petitioners were resident some distance away from Kitimat.

James Early