Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 SCR 842

Supreme Court of Canada

Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842

Date: 1982-12-21

Capital Regional District Appellant;

and

Concerned Citizens of British Columbia, Albert Head Ratepayers Association, and Colwood Ratepayers Association Respondents;

and

The Attorney General of Quebec, the Attorney General for Saskatchewan and the Attorney General for Alberta Interveners.

File No.: 16399.

1982: November 25; 1982: December 21.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law—Jurisdiction—Section 96 courts—Appeal from Pollution Control Board to either Lieutenant-Governor in Council or British Columbia Supreme Court—Validity of appeal decided by Lieutenant-Governor in Council—Whether or not grant of appellate function to Lieutenant-Governor in Council contrary to s. 96  of the Constitution Act, 1867 , and hence ultra vires—Pollution Control Act, 1967 (B.C.), c. 34, ss. 3, 4, 5, 9, 10, 11, 12, 21, 24—Constitution Act, 1867, s. 96.

This appeal engaged the constitutionality of s. 12 of the Pollution Control Act which constituted the Lieutenant-Governor in Council or its cabinet delegates as an appeal tribunal to hear appeals from decisions of the Pollution Control Board. That Board set aside a permit granted to appellant by the Director of Pollution Control and an appeal was made to the Lieutenant-Governor in Council. The three ministers who heard the appeal restored the Director’s decision to grant the permit subject to certain conditions. On an application for judicial review the Supreme Court of British Columbia found s. 12 of the Pollution Control Act to be ultra vires the Legislature in that it offended s. 96  of the Constitution Act, 1867 . The Court of Appeal upheld that decision.

Held: The appeal should be allowed.

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Section 12 of the Pollution Control Act does not offend s. 96  of the Constitution Act, 1867 . The appellate authority given the Supreme Court of British Columbia and the Lieutenant-Governor in Council is distinguishable and their respective powers to make any order that appears just does not envelope both appellate authorities with the same attributes. The mere assignment of a judicial function to an administrative agency does not turn that agency into a s. 96 court. There was an intertwined jurisdiction here that brought the administrative tribunal into a policy framework even if there were a judicial element in its operation. The Lieutenant-Governor in Council, while not involved in daily administration, exercised a control sufficiently evident to mark it off from the Supreme Court of British Columbia. Then, too, the Act provided for a number of years that the Lieutenant-Governor in Council be the only appellate tribunal, until finally the Supreme Court of British Columbia was added as an alternative form of appeal.

Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Labour Relations Board of Saskatchewan v. John East Iron Works, Ld., [1949] A.C. 134, considered; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638, distinguished.

APPEAL from a judgment of the British Columbia Court of Appeal (1980), 118 D.L.R. (3d) 257, 25 B.C.L.R. 273, [1981] 1 W.W.R. 359, dismissing an appeal from a decision of Bouck J. allowing an application for judicial review and finding s. 12 of the Pollution Control Act ultra vires the Province. Appeal allowed.

H.R. Eddy, for the appellant.

Robert Price, for the respondents.

Jean-K. Samson and Jean Bouchard, for the intervener the Attorney General of Quebec.

James C. MacPherson, for the intervener the Attorney General for Saskatchewan.

Wm. Henkel, Q.C., for the intervener the Attorney General for Alberta.

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The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal engages the constitutionality of s. 12 of the Pollution Control Act, 1967 (B.C.), c. 34. That section constitutes the Lieutenant-Governor in Council (or members of the Executive Council as its delegates) as an appeal tribunal to hear appeals from decisions of the Pollution Control Board established under the Act. The constitutional question is whether s. 96  of the Constitution Act, 1867  (formerly the British North America Act, 1867) is offended by the vesting of this appellate authority in the provincial Lieutenant‑Governor in Council.

Both Bouck J., of the British Columbia Supreme Court and the British Columbia Court of Appeal, speaking through Nemetz C.J.B.C., held that s. 96 was indeed offended because the effect of s. 12 of the Pollution Control Act was to create a Court not established by the Governor General in obedience to s. 96. It was not and is not contested that the provincial legislature had legislative authority to enact the substantive terms of the Pollution Control Act and to establish administrative machinery to carry out its terms. What is challenged is assignment by the Province of authority to a creature of its own to hear and determine appeals from decisions of the Pollution Control Board when, it is contended, such appellate authority should be vested in a federally appointed judicial officer or Court.

The central point taken by counsel for the respondent in supporting the decisions of the Courts below is that s. 12 of the Pollution Control Act gives indistinguishable appellate authority to the Supreme Court of British Columbia and to the Lieutenant-Governor in Council, that the two appeal tribunals are dealt with in the same statutory provision, and that their respective powers to make any order that “appears just” give a judicial character to each, thus enveloping the Lieutenant-Governor in Council in the same attribute

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undoubtedly belonging to the British Columbia Supreme Court.

Section 12 of the Pollution Control Act reads as follows:

12. (1) An appeal lies

(a) from every order of an officer to the Director;

(b) from every order of the Director to the Board; and

(c) from every order of the Board to the Lieutenant-Governor in Council, who may delegate any member or members of the Executive Council of the Province to hear the appeal and pronounce a decision thereon for or on behalf of the Lieutenant‑Governor in Council, or to the Supreme Court of British Columbia, as the appellant may decide;

and in this section the expression “appeal tribunal” means the Director, the Board, the Lieutenant-Governor in Council, or the member or members of the Executive Council of the Province delegated by the Lieutenant-Governor in Council to hear the appeal, or the Supreme Court of British Columbia, as the case may be, to whom the appeal is taken.

(2) Every appeal from an order of the officer or the Director shall be taken within fifteen days from the date of the order, and every appeal from an order of the Board shall be taken within thirty days from the date of. the order.

(3) The appellant under an appeal taken under this section shall give notice of the appeal as directed by the officer, Director, or the Board from whose order the appeal is taken.

(4) Before hearing an appeal, the appeal tribunal may require the appellant to deposit with the appeal tribunal such sum of money as the appeal tribunal considers sufficient to cover the probable expenses of the appeal tribunal and the respondent in connection with the appeal.

(5) The appeal tribunal may, on any appeal, determine the matters involved and make any order that to the appeal tribunal appears just, and may dispose of any money deposited by the appellant pursuant to a requirement made under subsection (4).

(6) The decision of the Supreme Court of British Columbia, or the Lieutenant-Governor in Council, or the member or members of the Executive Council of the Province delegated by the Lieutenant-Governor in Council to hear the appeal, as the case may be, shall be final.

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(7) No appeal shall act as a stay of execution.

Relevant History of the Pollution Control Act

Pollution of waters in the Province, including discharge of sewage or waste material was brought under statutory control in British Columbia under 1956 (B.C.), c. 36. The statute established a Pollution-control Board appointed by the Lieutenant-Governor in Council and vested in it a wide range of powers and duties as set out in s. 4. The powers and duties were enumerated as follows:

4. The Board shall have the following powers and duties:—

(a) To determine what qualities and properties of water shall constitute a polluted condition:

(b) To prescribe standards regarding the quality and character of the effluent which may be discharged into any of the waters within the area or areas under the jurisdiction of the Board:

(c) To conduct tests and surveys to determine the extent of pollution of any waters within the area or areas under the jurisdiction of the Board:

(d) To examine into all existing or proposed means for the disposal of sewage or other waste materials, or both, and to approve the plans and specifications for such works as are deemed necessary to prevent pollution of the waters of the area or areas:

(e) To notify all persons who discharge effluent into the said waters when the effluent fails to meet the prescribed standards:

(f) To order any person after six months from date of notification, or such longer period as may be determined by the Board, to increase the degree of treatment of the effluent or to alter the manner or point of discharge of the effluent being discharged by such person to bring the effluent up to the prescribed standards:

(g) To order any person who fails to comply with an order issued under clause (f) to cease discharging effluent into any waters in the area as and from a day in time specified in the order.

Discharge of sewage or other waste material into certain area of waters of the Province was prohibited without the permission of the Board

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and it was made an offence wilfully to violate the Act or any order of the Board or neglect to do any act or thing required to be done by the Board under the Act or under any order thereof. The areas under the Act were defined in s. 12(a) and added thereto were any area designated by the Lieutenant-Governor in Council. In addition, regulation making powers was in wide terms accorded to the Lieutenant-Governor in Council.

An additional power, relevant to this appeal, was the giving of a right of appeal to the Lieutenant-Governor in Council from any order, determination or decisions of the Pollution‑control Board with finality of decision. No limitations were prescribed on the scope of the appeal authority save as to a thirty day period for bringing any appeal.

This Act, which became R.S.B.C. 1960, c. 289, was replaced by a more embracive statute by 1967 (B.C.), c. 34, the statute concerned in this appeal. This Act confirmed the Pollution Control Board and made it subject to the following power of the Lieutenant-Governor in Council, as set out in s. 3(3):

3. …

(3) The Lieutenant-Governor in Council may direct the Board to inquire into, to determine causes of and remedies for any matter or matters relating to the polluted condition of water, land, or air, and

(a) to take such remedial action as the Board considers necessary in the public interest; or

(b) to report to the Lieutenant-Governor in Council, who may thereafter direct the Board to take whatever remedial action it considers necessary in the public interest.

The Board’s powers were enlarged to include land and air as well as water and were specified as follows:

4. The Board has the following powers and duties:—

(a) To determine what qualities and properties of water, land, or air shall constitute a polluted condition:

(b) To prescribe standards regarding the quality and character of the effluent or contaminant which may be discharged into any waters, land, or air:

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(c) To appoint such advisory or technical committees from time to time as may be deemed necessary to inform the Board with regard to whatever matters may be referred by the Board:

(d) To carry out any specified references or instructions made to the Board under subsection (3) of section 3.

Beyond this, the Act provided for the appointment of a Director of Pollution Control by the Pollution Control Board and required a permit from the Director for the discharge of effluent or other waste material on, in or under any land or water, subject to certain exceptions. An applicant for a permit was required to comply with the regulations and supply whatever plans, specifications or other information required by the Director. Regulation making power remained vested in the Lieutenant-Governor in Council whose authority was specified in s. 19 of the Act. Certain executive supervision over an application for a permit was set out in s. 5(4) and (5) of the Act (with certain later amendments) reading as follows:

5. …

(4) Upon receipt of an application for a permit, the Director shall, within such period of time as may be prescribed in the regulations, forward a copy of the application to the Minister of Agriculture, the Minister of Health, and the Minister of Recreation and Conservation.

(5) The Minister of Agriculture, the Minister of Health, or the Minister of Recreation and Conservation may, within thirty days or within such longer time as may be fixed by the Director, file with the Director recommendations with respect to the application for a permit, and the Director shall give consideration to the recommendations.

Overall initial control over the discharge or emission of effluent or other waste material in land or in water or of any contaminant into the air is in the hands of the Director from whom a permit or approval is required, subject to certain exceptions. The wide powers of the Director are set out in s. 10, which is in these terms:

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10. The Director has all the powers necessary for carrying out the intent of this Act and, without limiting the generality of the foregoing, has power

(a) to determine what qualities and properties of water, land, or air shall constitute a polluted condition;

(b) to prescribe standards regarding the quality and character of the effluent, other waste materials, or contaminant which may be discharged or emitted into water, land, or air;

(c) to conduct tests and surveys to determine the extent of pollution of water, land, or air;

(d) to examine into all existing or proposed means for the disposal of sewage, waste materials, or contaminants, and to approve the plans and specifications for such works as are deemed necessary to prevent pollution of water, land, or air;

(e) to notify all persons who discharge effluent or waste, or emit contaminant into water, land, or air when the effluent, waste, or contaminant fails to meet the prescribed standards;

(f) to order any person to increase the degree of treatment of the effluent, waste, or contaminant or to alter the manner or point of discharge of the effluent or waste or emission of contaminant being discharged or emitted by that person on and from a date specified in the order;

(g) to order a person

(i) who causes a polluted condition as determined under paragraph (a), or

(ii) who fails to comply with an order issued under paragraph (f),

to cease discharging effluent or waste into water or on, in, or under land or emitting a contaminant into air, on and after a date specified in the order;

(h) to determine his own procedure; and

(i) to exercise any of the powers or duties conferred or imposed upon an officer under this Act or the regulations.

The Act also vests powers in officers whose appointment is provided by s. 9, as are the appointment of a Director or Assistant Director. Powers of an officer are specified in s. 11, which reads:

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11. In addition to all other powers given under this Act and the regulations, every officer

(a) may determine what constitutes a substantial alteration or impairment of the usefulness of land, water, or air;

(b) may enter at any time in and upon any land and premises to inspect, regulate, close, or lock any works or premises; and

(c) may order the repair, alteration, improvement, removal of, or addition to any works.

There is provision under s. 13 of the Act for the filing of an objection to the grant of a permit and it is left to the Director to determine whether to hold a hearing. Moreover, a person not qualified to make an objection to the Director may file one with the Board who will determine whether the public interest requires that the Director take the objection into consideration. The Board’s decision in this respect is final and must be given effect by the Director. It is also provided that a public inquiry may be necessary for the proper determination of any matter within its jurisdiction. Finally, s. 21 imposes an obligation upon a person who would commence or carry on construction, alteration or extension of a sewage system to obtain a certificate from the Minister, the member of the Executive Council charged by the Lieutenant‑Governor in Council with the administration of the Act.

This brings me to consider the appeal provisions under s. 12, provisions which already have been quoted. What the 1967 Act has done is to include the Supreme Court of British Columbia as an alternate appeal tribunal. It had not been included under the Act of 1956. Moreover, whereas the appeal to the Lieutenant-Governor in Council under the 1956 Act contained no directions, other than a time limitation, in dealing with an appeal, s. 12 of the present Act adds to each appeal tribunal a direction to make any order that to it appears just.

Whereas the Supreme Court of British Columbia is divorced entirely from the administration of the present Act, that is not so with respect to the Lieutenant-Governor in Council and some

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of the Ministers who are members. It is true that the Lieutenant-Governor in Council is not involved in day to day administration but it has an overall responsibility through members thereof and through its regulation making power. I do not therefore read the words “that to the appeal tribunal appears just” as enforcing a uniform approach, whether as to fact or otherwise. The Lieutenant-Governor in Council was an appeal tribunal, the only one, before the Supreme Court of British Columbia was prescribed as an alternate. There are no express directions in s. 12(5) that compel the Lieutenant-Governor in Council to yield to a purely judicial assessment of an appeal nor, in my opinion, does the word “just” compel such an assessment. Policy remains open to a body which is a policy-making tribunal.

I would add this as a summary. Of the four functions that are reposed in the Lieutenant‑Governor in Council, only one relates to its appellate authority. The other three concern its administrative authority and include its appointing power, its regulation-making power and its directory and supervisory power. Its appellate authority, in the circumstances, does not stand as a detached power turning it into a purely judicial tribunal.

The Facts

On an application by the appellant, the Director of Pollution Control granted a permit to discharge sewage into a lagoon. The decision was appealed to the Pollution Control Board which set aside the decision of the Director and cancelled the permit. A further appeal was taken to the Lieutenant-Governor in Council which appointed three members of the Executive Council, each a Minister of the Crown, to hear the appeal. Not all of the members were lawyers. The Committee restored the decision of the Director but imposed certain conditions on the permit. Thereupon, a motion was made to the Supreme Court of British Columbia for judicial review on the ground, inter alia, that s. 12 of the Pollution Control Act was ultra vires in vesting appeal authority in the Lieutenant-

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Governor in Council and in its delegates. It was this application that came before Bouck J. and then before the British Columbia Court of Appeal.

This Court was informed that s. 12 (which later became s. 15 of R.S.B.C. 1979, c. 33) was repealed, with effect from January 1, 1982 in respect of that provision found to be ultra vires. In fact, the appeal provisions were repealed with respect to appeals to the Lieutenant‑Governor in Council and the British Columbia Supreme Court, leaving appeals only to the Director or the Board. However, it was not contended that the issue now before this Court is moot. There are pending proceedings and existing decisions of the Lieutenant‑Governor in Council whose validity depends on whether the judgments of the British Columbia Courts still stand.

The Constitutional Question

Leave to come to this Court was followed by an order fixing the following issue for determination:

In light of the provisions of Section 96 of the British North America Act, is section 12 of the Pollution Control Act, S.B.C. 1967, intra vires the legislature of British Columbia insofar as it purports to confer on the Lieutenant Governor in Council jurisdiction to hear appeals from decisions of the Pollution Control Board?

Nothing in this case turns on s. 24 of the Pollution Control Act which prescribes this privative clause:

24. Except as provided in this Act, no hearing, inquiry, investigation, proceeding, order, or decision of an engineer, the Director, the Board, the Lieutenant-Governor in Council, the member or members of the Executive Council of the Province delegated by the Lieutenant-Governor in Council under section 12, shall be questioned, reviewed, or restrained by injunction, prohibition, or other processes or proceedings in any court, or be removed by certiorari or otherwise into any court, save for excess or want of jurisdiction.

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Since it preserves the authority of the Courts to review any alleged excess or want of jurisdiction, it does not collide with this Court’s decision in Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. Section 24 does not, therefore, in itself offend s. 96 unless the vice arises under s. 12 of the Pollution Control Act.

If institutional considerations were alone to be considered, as explained in this Court’s judgment in Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112, and as further elaborated in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, there could be no doubt of the validity of s. 12. An additional element in this connection is the observation of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works, Ld., [1949] A.C. 134, that found support against the application of s. 96 in the fact that the challenged tribunal did not require nor have a complement of lawyers. This, of course, is the situation here with respect to the composition of the Lieutenant-Governor in Council.

The contention, however, is that the Lieutenant-Governor in Council is, with respect to its function as an appeal tribunal, in a detached position and to be assimilated in all respects to the British Columbia Supreme Court. An examination of s. 12(5) is said to give the two appeal tribunals authority to determine questions of law as well as questions of fact, and their judicial character is said to be emphasized by empowering them to make any order that appears “just”. In my opinion, the assimilation of the Lieutenant-Governor in Council to the Supreme Court of British Columbia is overdrawn.

The former was in place in the administration of the Act before the British Columbia Supreme Court was introduced as an alternate appeal tribunal in 1967. (Although not necessary to come to such a conclusion, it appears to me that only one appeal is contemplated in respect of a decision of the Pollution Control Board, with the choice of appeal tribunal left to the appellant). The fact that either tribunal may be invoked does not command

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the same assessment of a decision brought to appeal. Indeed, in determining what appears “just”, a Court may be less disposed than an executive agency to interfere with a discretionary order brought to appeal when the executive agency is clearly involved in the administration of the Act and the Court, apart from its appeal function, is clearly not.

It is here that the difference lies between counsel for the appellant and for the supporting interveners of Quebec, Saskatchewan and Alberta and counsel for the respondent. All counsel recognized that the mere assignment of a judicial function to an administrative agency does not turn the agency into a s. 96 court. This principle is at least as old as the John East case, supra. What this Court is asked to consider is whether there is an intertwined administration that would bring the administrative tribunal into a policy framework even if there be a judicial element in its operation. In my opinion, an affirmative answer should be given to this question. This case differs from Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638, where the sole function of the Transport Tribunal on appeal from decisions of the Transport Commission was to rule on questions of law, in effect in substitution of the power in that respect formerly reposed in the Quebec Courts.

I have already examined the content and context of the Pollution Control Act as it relates to the Lieutenant-Governor in Council, and it is unnecessary to repeat what I have said about it and about the way it is interlocked with the operation of the Act and with the subordinate agencies to which the management of the Act is confided. The fact that the Lieutenant‑Governor in Council is not involved in daily administration does not mean that it has no control. The control is sufficiently evident to mark it off from the Supreme Court of British Columbia.

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Conclusion

It follows that this appeal should be allowed and the judgments below set aside. In the result the appeal decision of the designated members of the Executive Council stands. The constitutional question should be answered in the affirmative.

This is not a case for costs, inter partes, nor will there be any costs for the supporting interveners.

Appeal allowed.

Solicitor for the appellant: Attorney General for British Columbia, Victoria.

Solicitors for the respondents: Price, Boyes & Company, Victoria.