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B.C. court overturns environmental board's ruling over 'apprehension of bias'

A GFL Environmental Inc. truck is seen in this photo from the company's website. (gflenv.com) A GFL Environmental Inc. truck is seen in this photo from the company's website. (gflenv.com)
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A B.C. Supreme Court judge has overturned a ruling by the province's Environmental Appeal Board after finding that the conduct of the panel's chair and one of its members led to a "reasonable apprehension of bias" in its decision.

In a ruling issued Wednesday and published online, Justice Wendy A. Baker found that the panel's conduct "was not even handed" when weighing the evidence in a hearing about an air emissions permit issued to the operator of a composting facility in Delta, B.C. 

Metro Vancouver, through its district director, issued the permit to GFL Environmental in May 2019. The permit contained terms that GFL found "too onerous," so the company appealed to the EAB.

After a 44-day hearing that was delayed, in part, by the COVID-19 pandemic, the EAB panel ruled in GFL's favour, modifying the permit's terms.

Metro Vancouver petitioned the B.C. Supreme Court for a judicial review of that decision, arguing the conduct of the panel throughout the hearing process had given rise to a reasonable apprehension of bias.

Delta residents living near the 29-acre compost facility also participated in both the EAB hearing process – arguing that the original permit was too lenient – and the judicial review process, agreeing with the district director that the EAB panel had been biased.

GFL and the EAB opposed the regional district's judicial review petition on a variety of procedural grounds, but Baker ultimately agreed with Metro Vancouver.

The judge's decision includes numerous lengthy excerpts from transcripts of the EAB hearing, which Baker uses to illustrate her conclusion that a reasonable observer would believe that the panel would not decide the appeal fairly.

"The chair intervened in questioning, reframed questions in ways to advance GFL’s position, engaged in extensive cross examination of the witnesses for the district director including challenging their credibility, and restricted the district director in calling the evidence he deemed necessary to explain the basis for the permit under review," the decision reads.

"The chair interfered with the questioning of the resident appellants to an extreme extent, intimidating, over-speaking, and at times appearing to give evidence for the witnesses in response to the questions posed by the resident appellants."

Baker's decision also notes that her copious quotations from transcripts are not the totality of the evidence that led her to conclude that the EAB panel was biased. The parties involved in the litigation submitted hundreds of paragraphs of information in support of their position, and referenced hundreds of past cases and other legal authorities, according to the judge.

"The conduct of the panel, and in particular the chair, which gives rise to an apprehension of bias, arose throughout the hearing," the decision reads. "It was systemic, and not limited to one or two problematic rulings, or a handful of problematic lines of questioning."

Having reached her conclusion, Baker issued an order quashing the EAB's decision. In theory, this would restore the terms of the original permit that Metro Vancouver issued to GFL.

In practice, however, the original permit was scheduled to expire on Sept. 30, 2023.

Metro Vancouver told the court it would take 120 days to issue a new approval to GFL if the EAB decision was quashed, but GFL said this timeline was overly optimistic, and submitted it would more likely take nine months to a year.

Baker agreed with GFL that the regional district's proposed timeline was too short, but opted not to leave a full year before her order took effect. Instead, she decided that the order quashing the EAB decision for apprehension of bias should take effect after six months. 

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