Canada: Environmental Assessment Not Statutory Authority?

Last Updated: April 12 2011
Article by Dianne Saxe

An environmental assessment, no matter how "extensive and wide ranging", does not amount to statutory authority, or provide a defence in nuisance, according to the British Columbia Court of Appeal in Appeal in Heyes v. Vancouver, now Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority.

The court said:

[164] As summarized earlier, the environmental assessment in this case was extensive and wide ranging. It began with a submission based on bored tunnel excavation, which was replaced by a supplemental application when TransLink approved the SNC-Lavalin/Serco proposal that included cut and cover construction. It involved public consultation with Ms. Heyes and other merchants. When the assessment was referred to the responsible Ministers for a certificate, they directed additional public consultation with specific reference to the impact of cut and cover construction along Cambie Street. Ultimately, the EAO concluded "practical means have been identified to prevent or reduce to an acceptable level any significant potential adverse effects" on the Cambie merchants, and the Ministers granted the EAC on August 8, 2005. The EAC authorized the Canada Line to proceed on certain conditions, one of which was that it be built in accordance with the specifications in the supplementary application, which specified cut and cover construction on Cambie Street. [165] Both parties rely on earlier decisions to support their positions. The appellants again raise Sutherland C.A., and draw a parallel between cut and cover construction and the third runway in that case. They say in Sutherland C.A. the EARP designated the location of the third runway, and the Court found an airport certificate granted pursuant to regulations under the Aeronautics Act statutorily authorized its operation. They maintain the EAC here similarly provided statutory authority for cut and cover construction. [166] I am unable to agree. First, the defendants in that case did not rely on the EARP as statutory authority. Second, while the Court found the legal effect of the certificate was to authorize the operation of the airport, including that runway, that finding was based on s. 302.03(1) of the Canadian Aviation Regulations, SOR/96-433, which expressly stated the certificate had the effect of "authorizing the applicant to operate an aerodrome as an airport". There is no similar legislative provision addressing the effect of an EAC. [167] Hazel & Co. relies on two authorities. The first, St. Lawrence Cement Inc., involved a class action brought against the owner of a cement plant, the location and operation of which was authorized by the SLC Special Act of the Quebec legislature, which caused a nuisance to its neighbours. The main issue before the Court dealt with the no-fault liability regime under the Civil Code of Quebec. However, the defendant also argued it could avail itself of the defence of statutory authority as the special statute expressly authorized the location and operation of the plant. The Court rejected that argument at para. 98 on the basis that "there is no provision in the SLC Special Act precise enough to justify a conclusion that the law of civil liability has been excluded for all consequences of the plant's activities". Hazel & Co. says this decision establishes that statutory authority for nuisance must be express and precise, and an EAC issued under the EAA does not meet those requirements. [168] I am not persuaded the Supreme Court has narrowed the defence of statutory authority to that extent. The St. Lawrence case arose in the context of the Civil Code of Quebec, and the Court devoted only two paragraphs to the issue of nuisance and the defence of statutory authority. I am unable to accept the Court intended this brief treatment to create a significant departure from its earlier decisions dealing with that defence. [169] Hazel & Co. also points to the decision of the Supreme Court in Portage La Prairie. As discussed earlier, the Court found the City's Charter did not provide statutory authority to operate a sewage lagoon that seeped effluent onto adjacent property. Relevant to present purposes, the Court also rejected the City's argument that regulations under the Public Health Act, requiring it to obtain a Minister's certificate of approval before constructing the lagoon, provided statutory authority. Martland J. stated at 155: The same applies to the regulations made pursuant to The Public Health Act, R.S.M. 1954, c. 211. In brief, these regulations require a municipality contemplating the construction of a sewage disposal or treatment system to submit plans, specifications and other material to the Minister, and prohibit such construction without his certificate that such construction may be carried out. These provisions do not add to the appellant's statutory powers, but make their exercise conditional upon this required procedure being followed. [170] Hazel & Co. says this supports the trial judge's finding the EAC was simply a permit that had to be obtained as a precondition to beginning the undertaking, and did not provide statutory authority for cut and cover construction. There is some support for this view in that, to the extent nomenclature is instructive, CLRT's documents, including the RFP, the invitation to submit a BAFO, and the Concession Agreement, all dealt with the EAC under the heading "Permits" or "Permits and Approvals". [171] I nevertheless conclude these authorities offer limited assistance as each is dependent on its own legislative framework. [172] The central question is whether the EAA, or the EAC issued under its provisions, provided statutory authority for cut and cover construction. In Sutherland C.A., Chief Justice Finch expressed the test in these terms: [118] ...I understand that the onus is upon the defendant asserting the defence to establish clear and unambiguous statutory authority for the work, activity or conduct complained of, in the place where that work, activity or conduct takes place, and express or implied authority to cause a nuisance as the only reasonable inference from the statutory scheme. [173] In my view, the appellants have not met that onus with respect to the EAC. There is nothing in the EAA, the environmental assessment process, or the EAC that would support such an inference. While the EAO who conducted the assessment concluded means had been devised to prevent or reduce adverse effects of construction on merchants such as Hazel & Co., there is nothing to suggest that, if Hazel & Co. found those means were inadequate, it was precluded from bringing an action for nuisance.

[174] I conclude the trial judge correctly found the EAC did not provide a basis for the defence of statutory authority."

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