Fisher Road Holdings Ltd. ("Fisher Road") operates a
licenced composting business in Cowichan, BC..
In 2009, Fisher Road planned to expand its composting operation
and to also expand its business to include recycling. In October of
that year, it applied to the Regional District to amend its Licence
to increase the permitted scope of its composting business. There
was strong public opposition. The CVRD responded by establishing a
citizen's advisory committee and by retaining EBA Consulting
Engineering Consultants Ltd. ("EBA") to conduct an
environmental review of Fisher Road's existing and proposed
operations in response to community concerns about potential
environmental risks to the aquifer.
" As required by the CVRD, Fisher Road held a public
meeting on May 20, 2010, to introduce its amendment application to
the community. The chambers judge found that approximately 200
people attended the meeting, most of whom expressed negative views
about any expansion to the operations permitted by Fisher
 After the public meeting, the CVRD's General Manager for
Planning and Development, Tom Anderson, prepared a staff report to
the CVRD's Electoral Area Services Committee dated June 8,
2010. The report referred to the public meeting and included a
brief summary indicating that residents in the area had expressed
concerns about the smell and threat of contamination from
composting and recycling facilities for many years. The report
expressed the opinion that the goal of trying to move industry to a
point where the smells emanating from the industrial uses were
considered "reasonable" and the threat to groundwater
eliminated, appeared to be unattainable."...
 On November 25, 2010, a second public meeting was held....
The EBA report was presented and discussed at that meeting, and
although no report from the citizen's advisory committee was
available, the committee's views later found in their report
were also discussed. ...
 On November 26, 2010, the citizen's advisory committee
report was produced. The report was critical of Fisher Road's
operations in general and of the steps taken by the CVRD to deal
with the community's concerns about those
On November 30, 2010, the CVRD's Board of Directors held a
public meeting, which led to the passage of the Bylaw that
prohibited composting on the Fisher Road site. The Directors, and
the public, had available during this meeting
an "Information Binder", which did not
include the EBA report nor the report of the citizen's
advisory committee. However, these two reports were considered by
The Court of Appeal found that the bylaw was invalid,
because CVRD breached its duties of notice and procedural
fairness to members of the public, including Fisher Road.
" With respect, ... The issue ...was not whether the
two reports had been disclosed to Fisher Road. Clearly they had
been. The issue before the chambers judge was whether the CVRD made
it clear to Fisher Road and any other interested parties that the
two reports would be relied upon by the CVRD's Board in
deciding whether or not to pass the Bylaw.
 Only the CVRD's delegates could advise the public what
material they intended to rely upon. Clearly they did not advise of
their intended reliance on the two reports. Had the chambers judge
addressed the question of what the public were told that the
delegates would rely upon, he would have concluded that anyone
reading the Notice of Public Hearing or attending the hearing on
November 30, 2010, would have understood that the decision-maker
had determined that the two reports were not going to be considered
by the CVRD's Board vis a vis the Bylaw."
The moral: close is not good enough in public participation. If
the Board wanted to rely on the two reports it had commissioned
about the environmental risks of the composting facility, those
reports had to be in the Information Binder that the Board made
public at its meeting.
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