In District Director, Metro Vancouver v. Environmental Appeal Board, 2024 BCSC 1064 (District Director), the Supreme Court of British Columbia quashed a decision of the BC Environmental Appeal Board (EAB), varying an air emissions permit on the basis that the EAB Panel’s conduct during the appeal hearing gave rise to a reasonable apprehension of bias. This decision highlights that, despite the high bar to challenge a regulatory decision based on an allegation that the decision-maker is biased, in the right circumstances decision-makers will be overturned if they “enter the fray” and align themselves with one of the parties.
Background to the decision
The District Director of Metro Vancouver Regional District regulates the release of air contaminants under the Environmental Management Act.[1] In 2018, the Director issued an air emissions permit to GFL Environmental Inc. (GFL), which operates a composting facility in Delta, BC. The permit was subject to certain odour compliance conditions. GFL appealed the permit to the EAB, arguing that the permit terms were too restrictive. Local residents also filed a separate appeal, arguing the permit terms were not restrictive enough. During the appeal hearing, the Director applied to have the EAB Panel Chair and a Panel Member recuse themselves based on a reasonable apprehension of bias. The Panel dismissed the recusal application, finding that that the Director had waived his right to allege bias and that, in any event, there was no reasonably apprehended bias. The EAB Panel allowed GFL’s appeal and dismissed the residents’ appeal (the EAB Decision).[2]
The Director brought a petition for judicial review of the EAB Decision in BC Supreme Court, seeking to set aside the decision. The Director submitted, among other things, that the course of the hearing before the EAB Panel gave rise to a reasonable apprehension of bias.
Bias in regulatory decision-making
In law, justice must not only be done, but must be seen to be done.[3] When there is an allegation that a decision-maker is biased, the reviewing court will consider the proceedings as a whole.[4] The purpose of the review is not to determine whether the decision-maker’s conduct was well intentioned, but to determine whether a reasonable and right-minded person, applying themselves to the question and obtaining the required information, would conclude that the decision-maker, whether consciously or unconsciously, could not decide the matter fairly.[5]
There is a strong presumption that a regulatory decision-maker is impartial.[6] A party alleging bias has a high burden of proof to rebut the presumption of impartiality.[7] A regulatory decision-maker has the power to control a proceeding, can intervene where necessary and can make rulings against a party during the proceedings, without being seen as biased.[8] Further, because a regulatory hearing is not a court proceeding, an assessment of a decision-maker’s conduct must take into account the statutory role of the decision-maker in the specific regulatory context.[9]
The Environmental Appeal Board Panel’s conduct gave rise to reasonable apprehension of bias
In District Director, the Court examined the transcript of the hearing, finding that the conduct of the Panel that gave rise to an apprehension of bias was systemic.[10] The Court found that the following conduct of the Panel, among other things, gave rise to a reasonable apprehension of bias:
(1) The language used by the Panel created the impression of having prejudged a key issue in the hearing—the reliability and usefulness of a particular odour standard.[11] The Panel Chair stated that the standard used was ‘fundamentally flawed’ before any evidence had been presented by the Director on the utility of this standard.[12]
(2) The Panel’s conduct was not even-handed. The Panel Chair appeared to assist GFL by intervening in the direct examinations conducted by counsel for the Director. The Panel Chair and a Panel Member subjected the Director’s witnesses to aggressive questioning, including challenging their credibility and expressing skepticism towards their answers.[13] The questions raised by the Panel Chair in the examination of a permitting specialist created the impression that the Chair was co-counsel with counsel for GFL, reformulating questions in a way that created the appearance of bias.[14]
(3) The Panel excluded some of the Director’s evidence without providing a justification for doing so. The Panel refused to allow the Director’s demonstrative aids to be marked as exhibits, without allowing the Director to make submissions on the matter.[15] Further, the Panel redacted portions of one of the Director’s expert witnesses written opinion, but provided no reasons for the redactions.[16]
The Court rejected GFL’s argument that the Director had waived his right allege bias. A party can waive their right to allege bias where they hold back the allegation until that party receives an unfavourable outcome.[17] This was not the situation in this case. According to the Court, the Director raised his allegation in a timely way, once he was aware of the pertinent facts that would support a bias allegation.[18]
As a result, the Court quashed the decision and awarded costs in favour of the Director.[19] Since the permit at issue had expired by the time the judicial review process concluded, the Court imposed a six month suspension of its order to quash the decision.[20] This period allowed GFL time to acquire a new permit. Regarding costs, the Court concluded that this situation constituted a rare instance where a decision-maker should be liable for costs. Generally, a decision-maker will not be entitled nor ordered to pay costs where there has been no misconduct of a lack of procedural fairness.[21] However, the EAB Panel’s conduct had undermined the efficiency and fairness of the process, leading to unnecessary costs for the parties involved.[22]
Key takeaways
District Director is a unique decision where the Court found that the decision-maker’s conduct gave rise to a reasonable apprehension of bias. While the threshold for finding bias on behalf of a decision-maker is high, given the presumption of impartiality, this case demonstrates that regulatory decision-makers, such as the EAB Panel, are not immune from findings of a reasonable apprehension of bias, nor having costs awarded against them in the right circumstances.
Denton’s Litigation and Dispute Resolution group has expertise in Canadian regulatory law. If you have a question about this decision, please reach out to the authors, Morgan Camley, Mitch Bringeland, and Kathryn Gullason. Dentons will monitor this decision and will provide further updates if and when they arise.
[1] S.B.C. 2003, c. 53.
[2] GFL Environmental Inc. v. British Columbia (Ministry of Environment), [2021] BCEA No. 3.
[3] District Director, Metro Vancouver v Environmental Appeal Board, 2024 BCSC 1064 at para. 32 [District Director], citing Kenneth James v. Her Majesty the Queen, [2001] DTC 5075 (FCA) at para. 52 [Kenneth James].
[4] District Director, supra note 3 at para. 32, citing Kenneth James, supra note 3 at paras. 52-53, 56-57.
[5] District Director, supra note 3at para. 23.
[6] Ibid at para. 25.
[7] Ibid at para. 27.
[8] District Director, supra note 3at para. 24.
[9] Ibid at para. 33.
[10] Ibid at para. 204.
[11] Ibid at para. 70.
[12] Ibid at paras. 62-63.
[13] Ibid at para. 52.
[14] Ibid at para. 75.
[15] Ibid at para. 169.
[16] Ibid at paras. 126-127.
[17] Ibid at para. 232.
[18] Ibid at para. 233.
[19] District Director, supra note 3at para. 253.
[20] Ibid at para. 248.
[21] Ibid at para. 32, citing Lang v British Columbia (Superintended of Motor Vehicles), 2005 BCCA 244 at paras. 57-48, 56.
[22] District Director, supra note 3at para. 252.
