NO. S075474
VANCOUVER REGISTRY
IN THE SUPREME COURT OF BRITISH COLUMBIA
RE: IN THE MATTER OF THE HEALTH ACT,
R.S.B.C. 1996, C 179, as amended, SECTION 102;
AND RULE 49 OF THE RULES OF COURT
BETWEEN:
WESTERN FOREST PRODUCTS INC.
APPELLANT
AND:
SUNSHINE COAST REGIONAL DISTRICT, acting as a
LOCAL BOARD OF HEALTH, DANIEL BOUMAN, BRAD BENSON, GEORGE SMITH, HANS PENNER, JOHN KEATES and RON NEILSON
RESPONDENTS
________________________________________________________________
SUBMISSIONS OF THE ATTORNEY GENERAL OF BRITISH COLUMBIA
________________________________________________________________
Edward Gouge, Q.C.
Craig E. Jones
Ministry of Attorney General
Legal Services Branch
1001 Douglas Street
Victoria, BC V8W 9J7
Tel: 250-537-2456 / 250-387-3129
Fax: 250-356-9154
Counsel for the Attorney General
A. The Status of the Precautionary Principle in Statutory Interpretation
C. The Standard of Proof and Precaution in Section 59
1. The Attorney General appears as of right in response to a notice served under the Constitutional Question Act, R.S.B.C. 1996, c. 68, subsection 8(3).[1]
2. The Attorney General takes no position on the merits of the present appeal, and in particular will make no submissions with respect to the Appellant’s arguments regarding bias.
3. The Attorney General’s submissions are confined to assisting the Court in its interpretation of the Health Act, R.S.B.C. 1996, c. 179. In particular, the Attorney’s argument will address the application of the precautionary principle, or principle of “prudent avoidance”, in the context of health hazard orders under section 59 of the Health Act.
4. The Attorney General advances four propositions in the course of these submissions:
There is no mandatory role for the precautionary principle in statutory interpretation: the degree of precaution permitted a decision maker is governed by the statute;
In this case, the statute sets out the degree of precaution to be taken;
The statute permits a local board to order the termination of a health hazard if the board believes, on the basis of credible evidence, that such a hazard exists; and
Under the “pragmatic and functional approach” to judicial review, and bearing in mind the nature of the problem and the context of the statute as a whole, a judicial review of such a decision must be premised on the standard of correctness.
5. In this way the basic administrative principle that decisions affecting rights should be made on the civil standard can be reconciled with the Health Act’s authorization of early and prophylactic intervention where there may be an unreasonable risk to the public health. The Attorney General’s proposed approach to the interpretation of the Health Act also accords with the promotion of the courts’ appropriate role in supervising the decisions of lesser tribunals and maintaining the rule of law.
6. The few Canadian cases considering the “precautionary principle” generally refer to the definition found in the Bergen Ministerial Declaration of Sustainable Development, which was cited by Madam Justice L'Heureux-Dubé in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40 [Spraytech], at para. 31:
Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
7. In Spraytech, a municipal bylaw regulating the use of a government-approved pesticide was upheld, with L'Heureux-Dubé J. noting that the bylaw was consistent with the precautionary principle.
8. Since Spraytech, a number of litigants have advanced arguments that regulatory bodies must incorporate the precautionary principle in their deliberations.
9. However, in British Columbia the decision in Western Canada Wilderness Committee v. British Columbia (Ministry of Forests, South Island Forest District), 2003 BCCA 403, makes it clear that the precautionary principle is not a mandatory rule of statutory interpretation, and that it is the language of the statute that governs. Prowse J.A. wrote for the Court at para. 80:
Since the precautionary principle was not incorporated in the Code, and since I am satisfied that s. 41(1)(b) does not preclude the approval of an FDP if there is an element of risk to a forest resource, I am unable to find that Ms. Stern's failure to give full effect to the precautionary principle in her decision renders an otherwise reasonable decision, patently unreasonable.[2]
10. As Holmes J. stated in Imperial Oil Limited v. City of Vancouver, 2005 BCSC 387 at para. 32, “the precautionary principle does not serve to confer jurisdiction that is otherwise absent.”
11. The Health Act is one in which decisions affecting rights are made at first instance on reasonable belief rather than on a balance of probabilities. Such legislation is reflective of the gravity of its subject matter, in this case public health.
12. Precautionary powers are also granted by other statutes where timely intervention in situations of grave risk is necessary. The Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, grants extraordinary powers to the Director, who may seize children he believes to be at risk, without the need for sufficient proff to meet the usual civil standard:
30 (1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that
(a) the child's health or safety is in immediate danger, or
(b) no other less disruptive measure that is available is adequate to protect the child.
13. To similar ends, the Motor Vehicle Act, R.S.B.C. 1996, c. 318, section 215 permits a police officer to issue a 24-hour administrative driving prohibition if the officer has “reasonable and probable grounds to believe” that a person’s ability to drive is affected by alcohol or drugs. Again, precautionary intervention is permitted due to the overwhelming public safety interest at stake.
14. Such legislation embodies a precautionary approach in matters of public safety. So does the Health Act.
15. The Health Act itself permits a medical health officer to impose treatment and quarantine on a person whom he has reasonable grounds to believe carries certain communicable diseases (s. 11). In addition to the powers of local boards under section 59, the Act grants to a health officer, medical health officer or public health inspector similar powers of investigation and intervention to deal with health hazards (sections 61 and 63). Such orders, like the one at bar, are appealable through s. 102.
16. The point of this brief review is to emphasize that there is no need to resort to “prudent avoidance” or the “precautionary principle” as independent principles of interpretation. The degree of precaution to be exercised is governed by the legislation; the Health Act confirms that local boards may act on a risk even absent proof that the risk probably exists.
17. The Order in the present case was made pursuant to s.59(1)(b) of the Health Act, which says:
59 (1) ...a local board may make an order under this section if...
...
(b) the local board has reason to believe that a health hazard exists;
18. The term “reason to believe” has been interpreted in federal immigration legislation to be a standard of proof that "while falling short of a balance of probabilities nonetheless connotes a bona fide belief in a serious possibility based on credible evidence": Maheu v. IMS Health Canada, [2003] F.C.J. No. 3, 2003 FCT 1 at para. 54, aff’d [2003] F.C.J. No. 1788 (C.A.), (holding that “reason to believe” means the same as having "reasonable grounds to believe", citing Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.)). See also: Re Ramirez and Minister of Employment and Immigration (1992), 89 D.L.R. (4th) 173 (Fed. C.A.).
19. “Reasonable grounds” are also frequently litigated in the context of search warrants and wiretap authorizations. In R. v. Lee, 2002 BCSC 1487, the court made the distinction between the requirement that an authorizing judge "be satisfied there are reasonable and probable grounds to believe ..." and one where he or she is to be satisfied there are “reasonable and probable grounds to conclude”. After an analysis, Cullen J. wrote:
[68] In my opinion, this articulation of the "reasonable grounds to believe" standard is consistent with the view of the Supreme Court of Canada expressed in R. v. Debot, supra; that a credibly based probability is one that must be strong enough to support a bona fide belief in the existence of a crime and the likelihood of acquiring evidence through the execution of the warrant sought, but that it need not be such as to support a conclusion as to those criteria, either on the standard of proof beyond a reasonable doubt, or the lesser standard of a "prima facie case."
[69] It follows therefore that the standard governing an authorizing judge does not involve proof on a balance of probabilities as contended by counsel for the accused, and I have conducted this review on that footing.
20. The Attorney General submits that the standard to be applied by the board in determining whether a health hazard exists is “a bona fide belief in a serious possibility based on credible evidence." An order may be made without a finding that a health hazard probably exists. This interpretation is supported by the fact that section 59(1), before it was amended by 2001-9-73 effective April 11, 2001 (Royal Assent), read as follows:
59 (1) If the local board is satisfied on reasonable grounds of the existence of the health hazard, it must serve a notice on the owner of the land or premises on which the health hazard exists or from which the health hazard arises, whether the health hazard arises or continues by or from the act, default or sufferance of the owner, or of the owner's tenant or the occupier of the land or premises, or from the nature of the premises themselves if they are unoccupied, requiring the owner to
(a) terminate the health hazard within a time to be specified in the notice, and
(b) execute the works and do the things necessary for the purpose of terminating the health hazard. [emphasis added]
21. The expression “satisfied on reasonable grounds” appeared to impose a higher standard than the present “reason to believe”. The amendment also changed the mandatory requirement for the board to make an order (pre-2001) to a permissive authorization for an order by the board. These two changes suggest that the health board was being given more leeway on the standard of proof and more discretion on the remedy, presumably in the interests of a more flexible response to emergent local situations.
22. And of course, the notion of “precaution” is inherent in the very idea of “hazard”, which denotes risk of harm, as opposed to manifest harm. In making a determination that an activity is a health hazard, the board must refer to the definition in the Act, which is:
"health hazard" means
(a) a condition or thing that does or is likely to
(i) endanger the public health…
23. Thus, the Health Act permits the issuance of a health hazard termination order if:
The local board of health has a bona fide belief, based on credible evidence, in
a serious possibility that the impugned activity endangers the public health, or
a serious possibility that the impugned activity is likely to endanger the public health.
24. This interpretation of the health legislation, however, requires that “health hazards” addressed by the Act, and thus risks that can be subject to precautionary intervention, are those risks that are, if not grave, at least serious. In determining whether a risk rises to the level of a “health hazard”, it is submitted, a decisionmaker should consider both the magnitude of potential harm and the probability of the harm occurring, such that a small risk of widespread harm might be considered as serious as as a larger risk of more localized harm.
25. Section 102 of the Health Act provides that, on an appeal of a health hazard order made by a local board of health to this Court,
(2) The Supreme Court may, on good cause shown, vary or rescind the order made.
26. The Attorney General has been unable to find any judicial consideration of this provision. Bauman J. in Mortensen v. Interior Health Authority, 2004 BCSC 1432, considered an appeal from an order made by a health inspector:
38 It follows that the health inspector, in my view, had no discretion to exercise on the issue of "probable contamination" once it was shown that the well in question is within 100 feet of the septic tank and field.
39 Her order followed this determination. In the words of my appellate jurisdiction, in such circumstances, no "good cause" can be shown to vary or rescind the order made.
40 For this reason it is not necessary for me to consider… the appropriate standard of review which is contemplated by the phrase "on good cause" in the context of health hazard abatement orders by a health inspector. [emphasis added]
27. Nevertheless, for the reasons set out below, the Attorney General submits that the scheme of the Act, and in particular the fact that health hazard orders can be made on grounds lower than a balance of probabilities, militates in favour of “correctness” as the standard of review on appeal.
28. The central purpose in applying the “pragmatic and functional approach” to determine the appropriate standard of review is to give effect to legislative intent. In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, the Court held:
21. … In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that “[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed” (para. 26). However, this approach also gives due regard to “the consequences that flow from a grant of powers” (Bibeault, at p. 1089) and, while safeguarding “[t]he role of the superior courts in maintaining the rule of law” (p. 1090), reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law. [emphasis added]
29. Section 59 leaves a range of processes available to a local board, from a quasi-judicial hearing with something approaching a lis inter partes on one hand, to perfunctory investigative process on the other in which parties affected by the order may have had little or no opportunity to participate.
30. When reviewing whether there is a good cause shown, then, a court may adopt a flexible approach, adopting procedure that falls along a corresponding spectrum, from something approaching a hearing de novo on the one hand, to a more circumscribed review on the other. Fresh evidence may be permitted as required.[3]
31. In this case, the fullness of the hearing below, involving all the parties now before the Court, suggests that a procedurally-circumscribed review can give effect to the statutory purpose, and this is the basis upon which the parties appear to be proceeding. However, it would not be correct to assume that the board’s decision should be subject to a deferential standard of review. This is especially so when due regard is given to the consequences that flow from health hazard orders under the Health Act.
32. Unlike other officials who may make health hazard orders under the Health Act (and therefore whose decisions must be treated with some deference), the board is not selected for a particular expertise in health matters: it consists of the local government council. There is no privative clause (beyond the standard of “good cause shown” in section 102[4]), and there is a broad grant of review to the court through a statutory appeal. These factors weigh in favour of a more searching review under Dr. Q.
33. But even more important than the ‘hallmarks’ identified in Dr. Q as indicia of the standard of review is the overall approach of the Supreme Court of Canada. The Court is to take a “pragmatic and functional” view, having regard to the statutory framework and the nature of the problem.
34. The mischief addressed by section 59 – health hazards – is almost unique in that policy heavily favours early intervention, sometimes even misguided intervention, because the consequences of late intervention can be exponentially grave. It might therefore be seen as a departure from the traditional idea that Canada, like England, “… is not a country where everything is forbidden except what is expressly permitted; it is a country where everything is permitted except what is expressly forbidden”: Malone vs Metropolitan Police Commissioner,[1979] 1 Ch. 344 at 357.
35. It would therefore make sense to permit the board to make decisions on a precautionary basis, then subject those decisions to a ‘sober second look’ by the courts, just as the removal of children at risk by the Director of Child and Family Services is subject to immediate (and in that case, automatic) review by a court. On review, the court should be able to consider if the balance of the evidence reveals that there is no risk.
36. The authorities’ powers to issue health hazard orders under the Health Act mirrors in most respects the powers of a drinking water officer under the Drinking Water Protection Act, S.B.C. 2001, c. 9 (“DWPA”). In that Act too, an official may take action based only on belief:
25 (1) A drinking water officer may make an order under this section if the drinking water officer has reason to believe that
(a) a drinking water health hazard exists, or
(b) there is a significant risk of an imminent drinking water health hazard.
37. However, there are important differences in what happens under the DWPA after an order is made. Instead of the statutory right of appeal found in s. 102 of the Health Act, an administrative review process is available. First, a drinking water health hazard order may be subject to reconsideration by the drinking water officer on fresh evidence; second, it may be subject to review on the record by the Provincial health officer or a medical health officer designated by the Provincial health officer.
38. There is no jurisdiction of a local board of health acting under section 59 of the Health Act to reconsider its own decision. Its jurisdiction is limited to investigations of complaints properly brought under the Act, and its order powers limited to terminating existing health hazards. It has no authority to reconsider or revisit the issuance of a health hazard order, and there is no mechanism of review in the Act except the general right of appeal under section 102.
39. This is further indication that the powers of the Court on an appeal from a health hazard order should be construed very broadly.
40. The empowerment of local boards under section 59 of the Health Act is clearly intended to bestow a limited intervention power on officials who, while they may have no particular expertise in health matters, nevertheless have the advantage of close connection to the community and an awareness of local issues and events.
41. Such boards may, under the statute, act in a precautionary fashion upon forming a bona fide belief in a serious possibility that a health hazard exists, based on credible evidence. But there is nothing in the Act, or the analysis in Dr. Q, to suggest that their decisions should be subject to deference upon review. In fact the indications are the opposite: a more “significant searching or testing”[5] is called for.
42. Thus the Attorney General submits that, when viewed pragmatically and functionally with the statutory purpose in mind, correctness is the appropriate standard of review to be applied when considering whether there is reason to believe that a health hazard exists.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
September 7, 2007
____________________________
Edward Gouge, Q.C.
____________________________
Craig Jones
Counsel for the Attorney General of British Columbia
[1] Subsection 8(3) of the Constitutional Question Act gives the Attorney General the right to appear as a party where, inter alia, the validity or applicability of an order made under authority of a statute is challenged.
[2] In the subsequent case of Tsawwassen Residents Against Higher Voltage Overhead Lines Society v. British Columbia (Utilities Commission), 2007 BCCA 211, the Society sought and was refused a 5-justice panel to overturn the question of the application of the precautionary principle. The 3-justice hearing panel declined to “reconsider” Western Canada Wilderness Committee (at para. 35).
[3] In another context the phrase “good cause shown” has been interpreted as foreseeing an application supported by evidence: See J.P.K. v. British Columbia (Superintendent of Child Welfare), [1980] B.C.J. No. 111 (S.C.), considering section 15 of the (now repealed) Adoption Act R.S.B.C. 1979, c. 4, which prohibited access to adoption files except through an application “on good cause shown”. Mackoff J. wrote:
8 'Good cause' is not defined in the Act. What then must an applicant show to warrant the setting aside of the absolute prohibition of access to the records? Since the section gives an equal statutory right of confidentiality and privacy to all three parties to the adoption process, the onus on an applicant, whether he or she be the adopted person, or the natural parent, or an adoptive parent, is to show a reason or reasons with evidence in support thereof, sufficiently compelling to override, the statutory right of the other parties.
[4] And, as suggested in footnote 4 above, it might be more correct to view these words indicating the admissibility of fresh evidence as denoting a weak privative clause.
[5] Dr. Q at para. 22, citing Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 57.