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Docket LEV10002
Order LEV10-01

IN THE MATTER of an appeal by R. Costain & Son Construction Ltd. of an Order issued by the Minister of Environment, Energy and Forestry.

BEFORE THE COMMISSION

on Thursday, the 16th day of September, 2010.

John Broderick, Commissioner
David Holmes, Commissioner


Order


Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Submissions on Jurisdiction

3.    Findings

4.    Disposition

Order


Appearances & Witnesses

1.  For the Appellant R. Costain & Son Construction Ltd.

Rodney Costain

2.  For the Respondent Minister of Environment, Energy and Forestry

Counsel:
Ruth M. DeMone


Reasons for Order


1.  Introduction

[1]   This is an appeal under section 29.1 of the Environmental Protection Act (the Act), R.S.P.E.I. 1988, Cap.E-9, by the Appellant R. Costain & Son Construction Ltd. (Costain).

[2]  On May 5, 2010, the Commission received a Notice of Appeal form dated May 3, 2010 and filed by Costain.  On the Notice of Appeal Costain checked off the form box referring to an environmental protection order issued under subsection 7(2) or 7.1(2).  The Notice of Appeal stated that it was appealing a May 3, 2010 order of the Minister of Environment, Energy and Forestry (the Minister). A copy of the Ministerís order was not attached.  A narrative of the history of the matter was attached. 

[3]  Commission staff contacted Rodney Costain (Mr. Costain) requesting a copy of the order which Costain sought to appeal.  Mr. Costain then faxed five pages of documents, none of which were an environmental protection order.

[4]  Commission staff then contacted the Ministerís office.  The Minister provided Commission staff with a copy of a December 8, 2009 Environmental Protection Order (EPO) issued per section 7.1 of the Act.  A supporting affidavit of service was also filed, noting that Ronnie Costain was served with the EPO on December 14, 2009.

[5]  By letter dated May 25, 2010, Commission staff forwarded a copy of the December 8, 2009 EPO to Costain.  The letter also advised Costain and the Minister of a preliminary issue relating to the Commissionís jurisdiction to hear this appeal.  Specifically, the Act requires an appeal to be filed with 21 days from the date of service of the environmental protection order.

2.  Submissions on Jurisdiction

Costainís Position

[6]  Mr. Costain filed the following submission concerning the jurisdictional issue:

[7]  Mr. Costain attached to his submission a letter from the Deputy Minister seeking to amend the order:

The Minister's Position 

[8]  Counsel for the Minister filed the following written submission:

 

3.  Findings

[9]  Section 29.1 of the Act sets out the right of appeal to the Commission:

[10]  The Commission notes that the Ministerís December 8, 2009 EPO was in fact served on Ronnie Costain on December 14, 2009.  A review of the Prince Edward Island Corporate / Business Names Registry reveals that Ronnie Costain is the president, and Rodney Costain the vice president, of Costain.  Subsection 29(3) of the Act reads as follows:

(3)   Where the person to be served is a corporation, service on a director, officer or recognized agent of the corporation in accordance with subsection (2) is deemed to be service on the corporation for the purposes of this Act.

[11]  The Commission finds that Costain was lawfully served with the December 8, 2009 EPO.  As an appeal was not received by the Commission until May 5, 2010, the Commission finds that it has no jurisdiction to hear an appeal of the December 8, 2009 EPO.

[12]  However, the Commission must consider the matter of the Deputy Ministerís April 7, 2010 letter.  This letter seeks to alter the December 8, 2009 EPO by requiring Costain to complete the December 8, 2009 EPOís requirements approximately five weeks earlier than specified in said EPO.  Mr. Costain contends that he was served with the Deputy Ministerís letter on April 19, 2010.  Counsel for the Minister has not offered evidence or argument to dispute this contention; therefore the Commission accepts that Mr. Costain was served with the Deputy Ministerís letter on April 19, 2010.

[13]  The Deputy Ministerís April 7, 2010 letter was purportedly issued pursuant to section 28 of the Act, which reads as follows:

28.    The Minister may, as the Minister considers necessary, revoke, impose terms and conditions on, or alter any terms and conditions of, any authorization issued under this Act or the regulations, including the following:

(a)    an order, including an environmental protection order;

[14]  The Commission finds that the Deputy Ministerís April 7, 2010 letter did apply section 28 of the Act to alter the ordered completion date specified in the December 8, 2009 EPO.  The question for the Commission is thus; can Costain appeal the altered completion date, even though the December 8, 2009 EPO itself cannot be appealed?

[15]  Section 29.1 of the Act authorizes an appeal of an EPO.  It does not specifically authorize an appeal of a section 28 LISTNUM  3) change to an EPO.

[16]  Section 9 of the Interpretation Act, R.S.P.E.I. 1988, Cap. I-8 (the Interpretation Act), reads as follows:

9. Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. 1981,c.18,s.9.

[17]  If the Commission were to rule that a section 28(a) change to an EPO could not be appealed, the possibility for mischief, intentional or unintentional, could occur.  As an example, if a section 28(a) change to an EPO could not be appealed, an EPO with fairly straightforward to comply with terms could be issued, and the person or corporation to which the EPO was directed, that is to say the recipient of such EPO, could view the terms as reasonable and decide not to appeal.  Upon the expiry of the appeal period, the terms of the EPO could then be made more onerous, under the authorization granted by section 28(a), and the recipient would be denied the right to appeal these more onerous terms.

[18]  Accordingly, the Commission finds that a section 28(a) change to an EPO may be appealed according to the appeal requirements set out in section 29.1 of the Act.  However, the Commission emphasizes that where the EPO itself was not appealed within the statutory timeframe, only the section 28(a) change to an EPO itself may be the subject of the appeal.  By not appealing the EPO itself, the recipient of the EPO has accepted the terms of the EPO and it is only any later changes which may be contested on appeal.

[19]  The Commission recognizes that the purpose of an EPO is to protect the environment.  It may be said that allowing an appeal of a section 28(a) change to an EPO could result in delay that would thwart such protective action.  However, the Commission wishes to emphasize the provisions of subsection 29.1(6) of the Act which read as follows:

29.1(6) The service of a written notice of appeal under this section does not operate as a stay of, and shall not in any way affect the environmental protection order or order referred to in subsection (3) or a decision referred to in subsection (4), as the case may be, that is the subject matter of the appeal.

[20]  From a practical perspective, the Commission agrees with Counsel for the Minister that the right to appeal the April 7, 2010 deadline alteration to the December 8, 2009 EPO is moot, as the issue that was at hand no longer exists.  In the present matter, the evidence suggests that the Minister effectively chose to treat the appeal as a stay of both the December 8, 2009 EPO and the April 7, 2010 amendment.  Both the original June 15, 2010 deadline for action and the May 7, 2010 deadline cited in the April 7, 2010 amendment letter have passed.  The jurisdictional issue determined by the Commission (that the specific provisions contained in a section 28(a) change to an EPO may be appealed) will no doubt be of use in the future but have no practical application for the present appeal.  Therefore, the Commission will not hear Costainís appeal of the Ministerís decision to amend the EPO deadline.

4.  Disposition

[21] The Commission will issue an Order that:

  •  The Commission has no jurisdiction to hear an appeal of the December 8, 2009 Environmental Protection Order as an appeal was not filed within 21 days of the service of said Order;

  • The Commission has the jurisdiction to hear an appeal of a section 28(a) change to an Environmental Protection Order, provided such appeal meets the requirements of section 29.1 of the Environmental Protection Act; and

  • The present appeal, pertaining to the specific terms of the  deadline alteration to the December 8, 2009 Environmental Protection Order, will not be heard by the Commission as the original and the amended deadlines for compliance have passed.


Order

WHEREAS the Appellant R. Costain & Son Construction Ltd. appealed an Order issued by the Respondent Minister of Environment, Energy and Forestry;

AND WHEREAS the Commission identified a possible issue of jurisdiction and invited written submissions from the Appellant and Respondent;

AND WHEREAS the Commission has reviewed the submissions of the parties and the applicable law, and has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Environmental Protection Act;

IT IS ORDERED THAT

1.  The Commission has no jurisdiction to hear an appeal of the December 8, 2009 Environmental Protection Order as an appeal was not filed within 21 days of the service of said Order;

2. The Commission has the jurisdiction to hear an appeal of a section 28(a) change to an Environmental Protection Order, provided such appeal meets the requirements of section 29.1 of the Environmental Protection Act; and

3.  The present appeal, pertaining to the specific terms of the deadline alteration to the December 8, 2009 Environmental Protection Order, will not be heard by the Commission as the original and the amended deadlines for compliance have passed.

DATED at Charlottetown, Prince Edward Island, this 16th day of September, 2010.

BY THE COMMISSION:

John Broderick, Commissioner

David Holmes, Commissioner


NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12.  The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13(1) and 13(2) of the Act provide as follows:

13.(1)  An appeal lies from a decision or order of the Commission to the Court of Appeal upon a question of law or jurisdiction.

(2)   The appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty days after the decision or order appealed from and the rules of court respecting appeals apply with the necessary changes.


NOTICE: IRAC File Retention

In accordance with the Commission's Records Retention and Disposition Schedule, the material contained in the official file regarding this matter will be retained by the Commission for a period of 2 years.