Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al., (1994) 153 A.R. 225 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 24, 1994
• Citations: (1994), 153 A.R. 225 (QB)

Athabasca Env. Assoc. v. PHAAB (1994), 153 A.R. 225 (QB)

MLB headnote and full text

In the Matter of the Public Health Act, S.A. 1984, chapter P-27.1 and amendments thereto;

And in the Matter of an appeal to the Public Health Advisory & Appeal Board from a decision of the Athabasca Health Unit dated July 15, 1993 to approve development of a Waste Management Facility;

And in the Matter of a decision of the Public Health Advisory & Appeal Board dated September 3, 1993, S. Wallace, Vice Chairman.

Between: The Friends of the Athabasca Environmental Association and Edmonton Friends of the North Environmental Society (applicants) v. The Public Health Advisory and Appeal Board & Alberta Pacific Forest Industries Inc. (respondents)

(Action No. 9303 21920)

Indexed As: Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

April 14, 1994.

Summary:

Friends of the Athabasca Environmental Association and Edmonton Friends of the North Environmental Society made written and oral submissions to the Athabasca Health Unit with respect to Alberta-Pacific's application to build a waste management facility. The Health Unit approved the appli­cation. The environmental groups appealed the decision to the Public Health Advisory and Appeal Board. The Board denied the groups standing on the ground that they were not directly affected by the units decision as required by s. 4(2) of the Public Health Act. The groups applied by way of originating notice for judicial review of the Board's decision. The groups amended their originat­ing notice by asking for a declaration that s. 4(2) of the Act violated s. 2(b) of the Char­ter.

The Alberta Court of Queen's Bench held that the groups could not amend their orig­inating notice without leave of the court. The court refused to grant leave to amend, but stated that the groups should raise their Charter arguments by way of a statement of claim. The court refused to set aside the Board's decision with respect to standing where the Board was correct at law.

Administrative Law - Topic 3202

Judicial review - Scope of review - Two environmental groups were refused stand­ing to appeal a decision to the Public Health Advisory and Appeal Board on the ground that they were not directly affected by the decision - They applied for judicial review by way of originating notice - The Alberta Court of Queen's Bench stated that, because the Public Health Act did not contain a privative clause, the decision of the Board had to be correct at law if it was to be protected from judicial review - The court held that the Board's interpretation of "directly affected" was correct at law and it did not commit a reviewable error - See paragraphs 34 to 38.

Administrative Law - Topic 3219

Judicial review - Error of law - [See Administrative Law - Topic 3202 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Practice - Topic 2488 ].

Pollution Control - Topic 8063

Land - Waste disposal - Legislation - Interpretation - [See Administrative Law - Topic 3202 ].

Practice - Topic 14

General principles and definitions - Pro­cedures not provided for in rules - [See Practice - Topic 2488 ].

Practice - Topic 220

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Respecting validity of adminis­trative action taken by government offi­cials or public body - [See Administra­tive Law - Topic 3202 ].

Practice - Topic 2488

Originating notices - Amendments - Two environmental groups were refused stand­ing to appeal a decision to the Public Health Advisory and Appeal Board on the ground that they were not directly affected by the decision - They applied for judicial review by way of originating notice - The groups amended their originating notices by asking for a declaration that s. 4(2) of the Public Health Act violated s. 2(b) of the Charter - The Alberta Court of Queen's Bench held that the pleadings were closed and amendments could only be made with leave of the court - The court refused to grant leave because the Charter issue was not raised before the Board and no factual foundation was es­tablished - See paragraphs 17 to 33.

Words and Phrases

Directly affected - The Alberta Court of Queen's Bench considered the meaning of the phrase "directly affected" in s. 4(2) of the Public Health Act, S.A. 1984, c. P-27.1 - See paragraph 36.

Cases Noticed:

Calgary (City) v. Alberta Public Health Advisory and Appeal Board (1987), 78 A.R. 241; 52 Alta. L.R.(2d) 260 (C.A.), refd to. [para. 6].

Alberta Union of Public Employees, Branch 63 v. Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281; 136 D.L.R.(3d) 1, refd to. [para. 6].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 6].

Friends of the Island v. Canada (Minister of Public Works), [1993] 2 F.C. 229; 61 F.T.R. 4; 102 D.L.R.(4th) 696 (T.D.), not folld. [para. 6].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 6].

Borowski v. Minister of Justice and Min­ister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 6].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, refd to. [para. 6].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 6].

Union Gas Ltd. v. Dawn (Township), [1977] 76 D.L.R.(3d) 613 (Ont. Div. Ct.), refd to. [para. 6].

Coalition of Citizens for a Charter Chal­lenge v. Metropolitan Authority (1993), 125 N.S.R.(2d) 241; 349 A.P.R. 241; 108 D.L.R.(4th) 145 (C.A.), leave to appeal refused (1994), 108 D.L.R.(4th) vii (S.C.C.), refd to. [para. 7].

Myskiew v. Wynn et al. (1977), 4 A.R. 464 (C.A.), refd to. [para. 7].

Smith v. Upper Canada College, [1921] 1 W.W.R. 1154 (S.C.C.), refd to. [para. 7].

Capital City Savings & Credit Union Ltd. v. Pipestone Valley Ranches Ltd. et al. (1989), 99 A.R. 116 (Q.B. Master), refd to. [para. 7].

Carmacks Construction Ltd. v. Beaumont (Village) and Pentagon Industries Ltd. (1981), 30 A.R. 328; 15 Alta. L.R.(2d) 367 (Q.B. Master), refd to. [para. 7].

Colour Your World Inc. v. Avery (Robert F.) Holdings Ltd. (1987), 84 A.R. 265; 56 Alta. L.R.(2d) 190 (C.A.), refd to. [para. 7].

Conmac Western Industries v. Robinson et al. (1993), 139 A.R. 321 (Q.B.), refd to. [para. 7].

Black v. Law Society of Alberta (1985), 38 Alta. L.R.(2d) 109 (C.A.), refd to. [para. 7].

R. v. Moskalyk (1993), 13 Alta. L.R.(3d) 87 (Q.B.), refd to. [para. 7].

Goudreau v. Falher Consolidated School District No. 69 (1993), 8 Alta. L.R.(3d) 205 (C.A.), refd to. [para. 7].

Allman v. Commissioner of Northwest Territories (1983), 50 A.R. 161; 8 D.L.R.(4th) 230 (N.W.T.C.A.), leave to appeal refused (1983), 8 D.L.R.(4th) 230 (S.C.C.), refd to. [para. 7].

Haig et al. v. Canada: Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81; 105 D.L.R.(4th) 577; 16 C.R.R.(2d) 193; refd to. [para. 7].

Irwin Toy Ltd. v. Quebec (Attorney Gen­eral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 7].

Committee for the Commonwealth of Canada et al. v. Canada et al., [1991] 1 S.C.R. 139; 120 N.R. 241; 77 D.L.R.(4th) 385, refd to. [para. 7].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 7].

Zurich Insurance Co. v. Human Rights Commission (Ont.), [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 8].

Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596; 35 D.L.R.(3d) 1, refd to. [para. 8].

Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 8].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 2].

Judicature Act, R.S.A. 1980, c. J-1, sect. 25 [para. 16].

Public Health Act, S.A. 1984, c. P-27.1, sect. 1, sect. 2, sect. 3, sect. 4 [para. 8]; sect. 4(2) [para. 2]; sect. 5, sect. 6, sect. 7, sect. 8 [para. 8].

Public Health Act Regulations (Alta.), Waste Management Regulation, Reg. 250/85, sect. 6(1) [para. 6].

Rules of Court (Alta.), rule 4, rule 5(m), rule 130, rule 131, rule 132, rule 753.16, rule 753.19 [para. 7].

Waste Management Regulation - see Public Health Act Regulations (Alta.).

Authors and Works Noticed:

Jones, David Phillip and de Villars, Anne S., Principles of Administrative Law, (1985), generally [para. 6].

Counsel:

S.P. Chotalia, for the applicants;

D.R. Thomas, Q.C., and A.E. Domes, for the respondent, Alberta-Pacific Forest Industries Inc.;

D.R. Cranston, for the respondent, Public Health Advisory and Appeal Board;

P.B. Michalyshyn, for the respondent, Alberta Justice.

This matter was heard on March 24, 1994, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 14, 1994.