COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Eagleridge Bluffs & Wetlands Preservation Society v. H.M.T.Q.,

 

2006 BCCA 334

Date: 20060704


Docket:  CA034086; CA034087

In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

And in the Matter of the Environmental Assessment Act, S.B.C. 2002, c. 43,

The Canadian Environmental Assessment Act, S.C. 1992, c. 37

And the Canada-British Columbia Agreement on Environmental Assessment Cooperation (2004)

And

In the Matter of Environmental Assessment Certificate T04-01 granted to the Ministry of Transportation (the MoT) for the Sea to Sky Highway Improvement Project (the Project)

Docket: CA034087

Between:

Eagleridge Bluffs & Wetlands Preservation Society

Appellant

(Petitioner)

And

Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Transportation, the Minister of Transportation, the Ministry of Environment, the Minister of Environment, Sea to Sky Highway Investment Limited Partnership, and Peter Kiewit Sons Co.

Respondents

(Respondents)

- and -


Docket: CA034086

Between:

Peter Kiewit Sons Co.

and Sea to Sky Highway Investment Limited Partnership

Respondents

(Plaintiffs)

And

Dennis Perry, Bruce McArthur,

John Doe and Jane Doe

Appellants

(Defendants)


 

 

Before:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Levine

 

J. Thayer

Counsel for Eagleridge Bluffs & Wetlands Preservation Society

G. Copley, Q.C and

N.E. Brown

Counsel for the Attorney General of British Columbia

D.A. Brindle, Q.C. and

M. Demers

Counsel for Peter Kiewit Sons Co.

J. Sullivan and

S.J. Knowles

Counsel for Sea to Sky Highway Investment Limited Partnership

Place and Date of Hearing:

Vancouver, British Columbia

June 12, 2006

Place and Date of Judgment:

Vancouver, British Columbia

July 4, 2006

 

Written Reasons by the Court:

 

Reasons for Judgment of the Court:

[1]                The appellants Eagleridge Bluffs & Wetlands Preservation Society ("the Society") and Bruce McArthur appeal, with leave, the orders of Mr. Justice Grist refusing the appellant Society an interim injunction to restrain construction of the DB1 section of the Sea-to-Sky Highway at Eagleridge Bluffs in West Vancouver ("the Project") and granting Peter Kiewit Sons Co. ("Kiewit") and Sea to Sky Highway Investment Limited Partnership ("Sea to Sky") an interim injunction ("the Kiewit injunction") restraining the appellants and others from interfering with the construction of the Project.  His reasons are reported at 2006 BCSC 815.  The appellants oppose the Project on environmental grounds.

[2]                The Project is part of a larger undertaking for the upgrading of the Sea-to-Sky Highway by the B.C. Ministry of Transportation ("the MoT") under the Transportation Act, S.B.C. 2004, c. 44, and the Transportation Investment Act, S.B.C. 2002, c. 65.  The MoT has entered into a concession agreement with Sea to Sky ("the Concession Agreement").  Sea to Sky in turn entered into an agreement with Kiewit to design and construct the Project ("the Design Build Contract").

[3]                The Project is a “reviewable project” as designated under the Environmental Assessment Act, S.B.C. 2002, c. 43 ("the EAA") and requires an environmental assessment certificate under s. 8:

8(1)      Despite any other enactment, a person must not

(a)        undertake or carry on any activity that is a reviewable project, or

(b)        construct, operate, modify, dismantle or abandon all or part of the facilities of a reviewable project,

unless

(c)        the person first obtains an environmental assessment certificate for the project, or

(d)        the executive director, under section 10 (1) (b), has determined that an environmental assessment certificate is not required for the project.

(2)        Despite any other enactment, if an environmental assessment certificate has been issued for a reviewable project, a person must not

(a)        undertake or carry on an activity that is authorized by the certificate, or

(b)        construct, operate, modify, dismantle or abandon all or part of the project facilities that are authorized by the certificate,

except in accordance with the certificate.

[Emphasis added.]

[4]                Environmental Assessment Certificate T04-01 ("the EAC") was issued under the EAA on 4 June 2004.  The EAC referred to the development of an Environmental Management Plan ("the EMP") which will be discussed in greater detail below.

[5]                The appellant Society’s claim for an interim injunction restraining construction is founded on a petition for judicial review under the Judicial Review Procedure Act,  R.S.B.C. 1996, c. 241 ("the JRPA").  The relief claimed in the petition was set out as:

1.         Relief in the nature of certiorari quashing and setting aside Environmental Assessment Certificate T04-01;

2.         Relief in the nature of certiorari quashing and setting aside the decision of MoT to proceed with alignment Option B for the Horseshoe Bay section of the Project;

3.         A declaration that the Sea-to-Sky Highway Improvement Project Environmental Management Plan, DB1 (Nelson Creek to Ansell Place) Phase 1 Clear and Grub, Earthworks, Drainage and Roadworks Eagleridge and Pasco Roads (Rev. 2) dated March 8, 2006 (the "Phase 1 DB1 EMP") does not comply with the legal requirements of:

(a)        the Environmental Assessment Act, S.B.C. 2002, c. 43; and

(b)        the Conditions of Certificate T04-01.

4.         A declaration that the MoT, the Concessionaire, the Sea-to-Sky Highway Investment Limited Partnership and the DB Contractor for the Horseshoe Bay Section of the Project, Peter Kiewit Sons Co. have not complied with the Conditions of Certificate T04-01;

5.         An order in the nature of an injunction or a writ of prohibition to prevent the MoT, the Concessionaire, the Sea-to-Sky Highway Investment Limited Partnership or the DB Contractor, Peter Kiewit Sons Co. from undertaking or carrying on any activity on the Overland Highway as set out in Option B for the Horseshoe Bay section of the Project until they have complied with the Conditions of Certificate T04-01;

6.         In the alternative an interim injunction preventing the MoT, the Concessionaire, the Sea-to-Sky Highway Investment Limited Partnership and the DB Contractor, Peter Kiewit Sons Co. from undertaking any work on the Overland Highway set out in Option B Horseshoe Bay section of the Project prior to the hearing of the Petition;

7.         Costs, including special costs; and

8.         Such further and other relief as to this Honourable Court may deem just.

[6]                In turn, the Kiewit injunction is founded on alleged illegal protest activity by the appellants.  The gravamen of the two competing proceedings, however, is essentially the same: it was initially contemplated that a single Environmental Management Plan Guidance Manual governing the entirety of the highway upgrade would be followed by specific environmental management plans for each of the sections (including this Project), but representatives of Sea to Sky and the provincial and federal governments agreed to replace the "Sectional EMP" for DB1 with a series of “Phased EMPs” to be issued as work on the section progresses.  Leave to appeal was granted to permit the appellants to argue that these Phased EMPs do not meet the requirement for an EMP set out in the conditions of the EAC.  A related issue is whether any inconsistency between the Phased EMPs and the EAC is amenable to judicial review at the initiative of the appellants under the JRPA.

[7]                The issue on appeal as framed in the appellants’ factum is:

Did the learned Chambers judge err in failing to find that the issue of whether phased environmental management plans complied with Environmental Assessment Certificate T04-01 raised a serious question to be tried?

[8]                As the submission developed, the issue turned more on the terms of the Concession Agreement and the Design Build Contract (together "the Agreements") referenced in the EAC rather than on the terms of the EAC independently of the Agreements.  The appellants contend that the Agreements require a single EMP for the Project and therefore an EMP for phase 2, stage 1 only does not meet the contractual requirements of the Agreements.  They contend that under the EAC a compliant EMP is a precondition to construction and Phased EMPs do not satisfy that precondition.  They argue this raises a serious question to be tried with respect to the competing injunction applications and the chambers judge erred in his contrary conclusion.  That conclusion is set out at para. 10 of his reasons:

[10]      The first assertion that there should be a single environmental management plan for the section makes reference to wording in the two contracts delegating the construction work under provisions of the public-private project. The adoption of staged plans, however, is not contrary to the conditions of the environmental assessment certificate, which is the governing provision. The parties to the agreements with the approval of the regulating agencies are free to amend the method of compliance with the certificate. Further, the evidence supports the segmented planning process as better able to deal with time-sensitive concerns individual to project stages. This fact bears on the balance of inconvenience that needs to be shown to support injunctive relief. The society has not shown any relative advantage to the single plan system capable of demonstrating harm through the change.

[9]                The respondents Kiewit and Sea to Sky submit that compliance of the Phased EMPs with the EAC does not raise a serious issue.  They submit that it is clear that Phased EMPs are permitted under the EAC and the Agreements and, in the event of any inconsistency with the wording of the Agreements, the chambers judge correctly concluded that the parties were free to agree to amend the method of compliance with the concurrence of the regulatory agencies.  The Attorney General on behalf of the Ministers of Transportation and the Environment raises a preliminary point that no statutory power of decision has been exercised that could support relief under the JRPA and the appeal should be dismissed on that ground.

[10]            The relevant provisions of the EAC are recital G and conditions 1, 5, and 6, as follows:

G.        The MoT proposes to develop an Environmental Management Plan (the EMP) that includes a number [of] component plans as described in the Application and in the MoT's ”Owner's Commitments and Responsibilities” (the MoT Commitments);

1.         The MoT must cause the Project to be designed, located, constructed, and operated in accordance with the Conditions of this Certificate and the documents and correspondence listed in Schedule A, and the MoT must comply with all of the Conditions of this Certificate to the reasonable satisfaction of the Minister.

5.         The MoT must submit, to the satisfaction of the Executive Director, quarterly reports on the status of compliance with the Conditions of this Certificate, and the documents and correspondence listed in Schedule A, from the date of issuance of this Certificate until completion of Project construction on all work packages.  The Executive Director may adjust or extend this reporting requirement by providing written notice to the MoT.

6.         As part of the compliance reporting responsibilities defined in section 5 above, the MoT must provide each component plan of the EMP to third parties in consultation with the Executive Director, or where required by other statutory requirements. The MoT must report on any required review, amendment or implementation of component plans of the EMP in a manner mutually acceptable to the Executive Director, the MoT and regulatory agencies. [Emphasis added.]

[11]            Recital G states that the MoT "proposes to develop" an EMP and include the EMP within the compliance reporting responsibilities defined by conditions 5 and 6 of the EAC.  The EMP details were delineated in the Concession Agreement and carried forward into the Design Build Contract.  In answer to the appellants’ contention that the Agreements require one EMP for the Project, the respondents submit the Environmental Management Plan Guidance Manual prepared for the Project meets any single EMP requirement in Schedule 12, section 3 and Schedule 23 of the Concession Agreement and the Phased EMPs are an approved means of implementation of the EMP Guidance Manual.

[12]            The chambers judge did not find it necessary to resolve that difference between the parties. He observed that the parties to the Agreements and the regulatory agencies having jurisdiction could agree by amendment to employ Phased EMPs as an appropriate means of implementing the EMP obligation contemplated by the EAC.   The appellants contend that this conclusion was an error.  The appellants’ factum puts the issue as: "It was an error in principle for the learned chambers judge to go and rule on the issue of whether the parties to the agreement with the approval of the regulating agencies were free to amend the method of compliance with" the EAC. 

[13]            There are at least two aspects to the question.

1.         Do the EAC and the Agreements permit the variation agreed to by the parties with regulatory concurrence?

2.         Does non-compliance with the EAC and the Agreements engage the exercise of a statutory power amenable to judicial review at the initiative of the appellants under the JRPA?

[14]            The standard to be applied in an interlocutory proceeding is whether these aspects raise a serious question to be tried.

[15]             The appellants do not attack the EAC itself.  The challenge is to compliance with its conditions, and specifically the EMP terms of the Agreements referenced in the conditions.  There is no reference to an EMP in the EAA and the only references in the EAC, set out above, are limited.  Therefore it cannot be seriously argued that Phased EMPs conflict directly with the conditions of the EAC.  The only issue is whether they conflict with the Agreements.

[16]            A concession agreement is given statutory recognition by the Transportation Act and the Transportation Investment Act. Section 3 of the Transportation Act authorizes the Minister of Transportation to enter into contracts for transportation-related activity but does not circumscribe the Minister’s power to contract. Section 3 of the Transportation Investment Act directs that a concession agreement must contain certain provisions.  The appellants rely on s. 3(f) which states:

3          A concession agreement must

(f)         require the concessionaire, when performing the concessionaire's obligations or exercising the concessionaire's rights in relation to the concession highway, to meet or exceed the standards applicable to a comparable public highway, or, if higher standards are referred to in the concession agreement, meet or exceed those specified standards, including, without limiting this, design, construction, safety, maintenance and signage standards…   [Emphasis added.]

[17]            The appellants contend that this provision gives a statutory imprimatur to the Concession Agreement and requires Sea to Sky as concessionaire, and by extension Kiewit, to comply with higher highway standards to the extent specified in the Concession Agreement.  They argue that the EMP requirement is such a higher standard. The statute, however, does not itself set a higher standard but allows the terms of the Concession Agreement to set standards higher than for a comparable public highway.  The Concession Agreement is a contract and it is basic contract law that parties to an ordinary contract are free to vary its terms by common agreement and it is not open to third parties to object.  There is no suggestion that "standards applicable to a comparable public highway" would be impaired by Phased EMPs and any higher standards are contractual matters not pre-determined by the statute.  The parties were free to define those standards in the concession agreement, and under basic contract principles to vary them by common agreement. In our view, there is nothing in the statutory framework surrounding the Concession Agreement that could be seriously argued to preclude the parties’ agreement to Phased EMPs.

[18]            It is clear from the e-mails exhibited to the affidavit of Andrew Allan that all regulatory agencies having jurisdiction have accepted Phased EMPs. The appellants’ objection that the e-mails are inadmissible as hearsay evidence of consent cannot be sustained.  The e-mails on their face are the consents relied on by the parties and not simply evidence of the consents that could raise a hearsay issue. We do not think that it can be seriously argued that Phased EMPs breach the terms of the Agreements as a matter of contract law, either as properly interpreted or amended, and there was no error in the conclusion of the chambers judge on this point.

[19]            In any event, we do not think that there is a serious argument that any breach of the EAC could support a remedy at the initiative of the appellants under the JRPA, at least in the absence of an abdication of ministerial jurisdiction amounting to bad faith, which is not alleged by the appellants.  Therefore, jurisdiction under the JRPA is limited.  It is conveniently summarized in the Attorney General’s factum, quoting S. Blake, Administrative Law in Canada (3rd Ed.) (Markham: Butterworths, 2001), p. 161:

"Statutory power" is a defined term.  It includes powers conferred by or under a statute to make a decision or perform an act that affects a person, to impose requirements on a person, or to make rules.  It does not include all powers conferred by or under a statute, such as statutory powers to contract or to manage property.  It does not include all actions of government, only those which involve the exercise of a statutory power.

Even then, a statutory power can be challenged [under s. 2(2(b) of the JRPA] only if the authorized person exercises the power, refused to exercise it, or proposes or purports to exercise it.  A declaration or injunction is not available in respect of a statutory power that merely exists and has a potential to be exercised.  It is the exercise or non-exercise of the statutory power that may be challenged, not its existence.

[20]            The Agreements involve powers to contract or to manage property not amenable to judicial review.  The issuance of the EAC is not impugned and there is no other power of the Minister of the Environment under either the EAA or the Environmental Management Act, S.B.C. 2003, c. 53 that has been exercised or refused to be exercised, even if we were to overlook the absence of any reference to the latter statute in the petitioner’s prayer for relief. 

[21]            In the result we are satisfied that the Phased EMPs do not raise a serious issue to be tried and there was no error in the decision of the chambers judge to refuse the appellant Society’s application for an interim injunction to restrain construction.  The appellant having failed on the first prong of the test for an interim injunction it is unnecessary to address questions of irreparable harm and the balance of convenience.

[22]            It follows that the order granting the Kiewit injunction also cannot be disturbed.  We would dismiss the appeal.

“The Honourable Mr. Justice Hall”

“The Honourable Mr. Justice Mackenzie”

“The Honourable Madam Justice Levine”