Here’s the letter from the B.C. Environmental Appeal Board on the matter of Ruth Madsen’s request for an extension:
February 23, 2010 FILE: 2010-EMA-002
Ruth Johaness Madsen
170 Nicola Street
Kamloops, BC V2C 2P1
Aboriginal Cogeneration Corporation
Attention: Kim Sigurdson
7 Bingham Drive,
Dean Jeske, Environmental Protection Officer
Ministry of Environment
1259 Dalhousie Drive
Kamloops BC V2C 5Z5
RE: Environmental Management Act Appeal – Thompson Institute of Environmental Studies v January 7, 2010 Permit #103943 granted to Aboriginal Cogeneration Corporation.
The Board is in receipt of a letter from Ruth Madsen, representing the Thompson Institute of Environmental Studies (the “Institute”). This letter was received by email on February 19, 2010. A copy of the letter has been provided to Jason Bourgeois, the Ministry decision-maker, and to the Permit Holder, Aboriginal Cogeneration Corporation.
Ms. Madsen’s letter is in response to the Board’s letters of February 11 and 12, 2010, asking for confirmation that the Institute is a “person” in law, such that it may file an appeal of the above-captioned permit. Ms. Madsen advises that the Institute does not meet the definition of “person”, as it is no longer incorporated. However, Ms. Madsen asks the Board to amend the Notice of Appeal to clarify that she (Ms. Madsen) is the appellant, and that she is bringing the appeal on behalf of the Institute. Ms. Madsen writes: “I clearly filed the appeal on behalf of myself as a 21 year member of TIES [the Institute] and the other members of TIES.”
The Board has also received two letters from the Permit Holder: one dated February 19, 2010; the other dated February 23, 2010. The February 19th letter asked the Board to dismiss the Institute’s appeal on the grounds that it does not meet the test for standing to appeal as it is not a “person”. This letter was written without the benefit of Ms. Madsen’s letter.
The February 23rd letter was written after receiving a copy of Ms. Madsen’s letter. The Permit Holder repeats its request for the appeal to be dismissed. It states that the Institute “is not registered to Ms. Madsen” and that the appeal and the appeal fee were sent in late. It asks the Board for a fair and impartial decision now, as the Institute’s appeal should not have been considered under the Board’s Procedure Manual. It submits that time is of the essence as the Permit Holder wants to move forward with its project.
Section 100(1) of the Environmental Management Act provides that “a person aggrieved by a decision of a director or district director” may appeal the decision to the Board. Section 101 of the Act states that the time limit for commencing an appeal is 30 days after notice of the decision is given.
The Notice of Appeal filed by the Institute was received by the Board within the 30 day time limit for commencing an appeal. Although the required filing fee was not received within that same period, the Environmental Appeal Board Procedure Regulation, B.C. Reg. 1/82, contemplates this situation and makes an allowance for an appellant to correct “deficiencies” in the Notice of Appeal. This is made clear by subsections 3(4), (5) and (6) of the Regulation:
(4) The notice of appeal shall be signed by the appellant, or on his behalf by his counsel or agent, for each action, decision or order appealed against and the notice shall be accompanied by a fee of $25, payable to the minister charged with the administration of the Financial Administration Act.
(5) Where a notice of appeal does not conform to subsections (3) and (4), the chairman may by mail or another method of delivery return the notice of appeal to the appellant together with written notice
(a) stating the deficiencies and requiring them to be corrected, and
(b) informing the appellant that under this section the board shall not be obliged to proceed with the appeal until a notice or amended notice of appeal, with the deficiencies corrected, is submitted to the chairman.
(6) Where a notice of appeal is returned under subsection (5) the board shall not be obliged to proceed with the appeal until the chairman receives an amended notice of appeal with the deficiencies corrected.
According to these sections, a deficient appeal does not render the appeal invalid. The Board is simply not required to proceed with the appeal until the deficiencies are corrected. Thus, the delay in receiving the filing fee does not provide a proper basis for dismissing the appeal, nor does the delay caused by investigating the Appellant’s standing. However, if the Appellant is not a “person” in law, this is a ground for dismissal.
It is now clear that the Institute is not, in law, a “person”. However, Ms. Madsen states that she “clearly” filed the appeal “on behalf of” herself and the Institute, and that this had always been her intent. She states that as a lay person, she was not familiar with the Board’s legal requirements and seeks an amendment to reflect her intention.
The Board has carefully considered the Notice of Appeal and the grounds for appeal. There is nothing in the grounds for appeal describing the Institute as an organization, its membership, its specific interest in the issues identified by the grounds, nor how the Institute is “aggrieved” by the permit. The Notice of Appeal does not identify Ms. Madsen as a member of the Institute, nor does it describe how she is “aggrieved” by the permit. However, Ms. Madsen has advised in her recent letter that she lives in close proximity to the proposed facility and is “likely to be directly affected.” How close, and how she might be aggrieved, was not explained.
The Board notes that the grounds for appeal are general and may be of relevance to a broad spectrum of the Kamloops population, including those who live in the vicinity. The Board also acknowledges that Ms. Madsen is not a lawyer and may have been unclear about the requirement for an appeal to be filed by a “person” in law. When an appeal has been filed within the appeal period but there is some defect that is a result of inexperience or lack of legal knowledge, the Board is reluctant to simply dismiss the appeal. Tribunals are often established to provide a more accessible “justice” to the public. To meet this goal or objective, sometimes amendments must be made that might otherwise not be allowed. This is one of those cases.
The Board recognizes that the Permit Holder is concerned with further delays. However, the standing of the Institute was identified early in the process. Whether the appeal proceeded in the name of the Institute (had it been a legal person) or Ms. Madsen, the Permit Holder is in the same situation. The fact is that an appeal was filed, and it was filed within the limitation period.
Turning to the requested amendment, while the Board is prepared to allow an amendment, the Board is not prepared to identify the appellant as “Ruth Madsen on behalf of the Institute”. As stated above, the Notice of Appeal contains no information about the Institute, its membership, its interest in the issues raised by the permit or how it is aggrieved. However, the Board is prepared to amend the Notice of Appeal to show Ms. Madsen as the Appellant, in her personal capacity. If this is acceptable to Ms. Madsen, she is asked to advise the Board.
In order to satisfy the Board that Ms. Madsen is, herself, a “person aggrieved”, she is also asked to provide further information on her proximity to the proposed facility and how she will be personally “aggrieved” by the Permit. Given the delays to date, the Board will give Ms. Madsen until March 2, 2010 to respond to this request. The Director and the Permit Holder may then reply to those submissions by March 9, 2010, with final reply from Ms. Masden by March 12, 2010.
The Third Party and the Respondent will be given an opportunity to reply to her submissions.
cc: Aboriginal Cogeneration Corporation;
Jason, Bourgeois, Ministry of Environment