Muddy Waters for Local Boards of Health:

Western Forest Products v. Sunshine Coast Regional District

By
James Yardley
Barrister & Solicitor
jgy@murdymcallister.com
November 8, 2007

 

            The October 9, 2007 decision of Mr. Justice Butler of the B.C. Supreme Court in Western Forest Products v. Sunshine Coast Regional District et al 2007 BCSC 1508 is the latest, but not last, step in a highly publicized battle that has pitted public health concerns over the protection of drinking water against the ability of a company to log in a community watershed.  The case involved the challenge by Western Forest Products (“WFP”) of a rarely used power under the Health Act pursuant to which the Sunshine Coast Regional District, acting as a local board of health (the “SCRD Local Board”), ordered WFP to limit its logging in a watershed used by the Regional District to supply water to the vast majority of its residents. 

 

Background Facts

 

            The case concerned logging and road building by WFP in the Chapman Creek watershed.  The watershed supplies water to most domestic water users in the SCRD.  The SCRD had a long history of opposing forestry in the watershed, and of attempting to obtain more control over activities in the watershed.  WFP had obtained a timber license to log in the watershed, which was set to expire in 2008, and could not be extended.  WFP then obtained permits for its work under the Forest and Range Practices Act.  After WFP commenced logging and road building in the watershed, a group of residents, some of whom had been blockading WFP’s operations, made a “complaint” under section 57 of the Health Act to the SCRD that WFP’s activities were a “health hazard” as that term is defined in the Health Act.  Under the Health Act, each municipality and regional district in British Columbia, plus a variety of other bodies, is deemed to be a local board of health.  Section 58 of the Health Act requires local boards of health to investigate the cause of a complaint under section 57.

 

            The SCRD Local Board undertook a five day public hearing where it heard submissions from people who supported the complaint, others who opposed it, and from representatives of WFP.  It then issued an order to WFP on August 11, 2007 (the “Order”).  The Order had several elements, including a direction that WFP not log slopes that exceeded 60 percent, or work within 30 meters of watercourses.  The Order provided that it was not to prevent the removal of trees already felled, or that had already been prepared for helicopter removal.   

 

What the Court Decided

 

            Under the Health Act, a Supreme Court Judge may “vary or rescind” local board of health orders “on good cause shown”.  Following its issuance, WFP sought an order to stay, or restrain the effect of, the Order.  The granting of a stay involves application of the two part test used when seeking interlocutory injunctions: (1) is there a “serious question”, and (2) in which party’s favour does the “balance of convenience” lie.  On the first issue, the SCRD Local Board and the complainants acknowledged that there was a serious question.  On the second issue, Mr. Justice Butler (who also heard the stay application) held that the balance of convenience was evenly balanced between WFP and the SCRD Local Board, except for certain aspects of the Order not considered to be “fundamental” to the Order.  Thus, a stay was granted over parts of the Order, pending a later hearing of the matter on its merits.

 

            WFP raised three main arguments when the appeal was heard on its merits.  The first was that the SCRD Local Board erred in its interpretation of whether WFP’s activities were a “health hazard”, as that term is defined in the Health Act.  The second argument was that the Order was “unreasonable” when it was considered in light of the material before the SCRD Local Board at its hearing.  The third argument was that the SCRD Local Board had a disqualifying bias due to the previous positions taken by the SCRD against logging in the watershed.

            Mr. Justice Butler found in favour of WFP, and rescinded the Order.  With respect to the first issue raised by WFP, Mr. Justice Butler noted that the wording of the Health Act required the SCRD Local Board to have “a bona fide belief that a health hazard exists.”  The reasons issued by the SCRD Local Board noted that the Order was made in the face of uncertainty about whether there was a threat to health or safety, and that principles of prudent avoidance (also known as the precautionary principle) justified the Order.  Mr. Justice Butler held that the SCRD Local Board had reversed the onus of proof, so that it had required WFP to show that a health hazard did not exist.  When this was combined with a review of language in the Health Act that gives authority to other public officials, such as medical health officers, to issue orders where there is a “significant risk” of an “imminent” health hazard, Mr. Justice Butler concluded that the SCRD Local Board incorrectly applied the Act.

          With respect to the second argument raised by WFP, Mr. Justice Butler agreed with all parties that the test to be applied was whether the actions of the SCRD Local Board were “unreasonable”.  This required the Court to determine whether there was “some basis in the evidence” to support the Order.  Mr. Justice Butler concluded that the evidence heard by the SCRD Local Board did not justify the Order. This appears to have been based primarily on Mr. Justice Butler’s conclusion that it was not reasonable for the SCRD Local Board to accept the evidence of non-expert lay witnesses in preference to what he characterized as an “overwhelming” body of contrary and more specific evidence of a technical or expert nature.  

            Mr. Justice Butler did not specifically rule on WFP’s third argument.  However, he noted in his Reasons for Judgment that he would likely have applied the “capable of persuasion” test for bias argued for by the SCRD Local Board, rather than the “reasonable apprehension of bias” test argued for by WFP.  Under the “capable of persuasion” test, disqualifying bias exists if the decision maker has a “closed mind” about an issue.   The evidence did not appear to support WFP in that regard. 

 

Finally, Justice Butler acknowledged that it was “somewhat anomalous” for the SCRD to not have authority to determine what activities could occur in the watershed.

 

An appeal of Mr. Justice Butler’s decision has been commenced. 

 

Implications of the Decision

 

Local governments appear to have only rarely exercised their local board of health powers in recent years.  Those powers have traditionally been directed to untidy and nuisance premises, and their reduced use probably reflects the creation of health authorities.  Justice Butler’s decision provides guidance on the exercise of local board of health powers, and how they may be reviewed by the Courts.

 

• Assuming the decision is not varied on appeal, the jurisdiction of a local board of health arises when a health hazard “exists”, rather than when it is “imminent”.  As noted above, in reaching this conclusion, Mr. Justice Butler referred to language in the Health Act contrasting the authority given to local boards with that given to parties such as medical health officers.  One problem with this interpretation is that it does not seem to meaningfully apply that part of the definition of “health hazard” in the Health Act that refers to conditions that are “likely to” endanger public health, and which seems to support orders that deal with situations where the concern is prospective in nature. 

 

• Mr. Justice Butler reviewed in some detail the submissions heard by the SCRD Local Board.  While he agreed that a local board of health does not always have to act on the evidence or submissions of experts, he faulted the SCRD Local Board for preferring the evidence of laypersons to that of experts, notwithstanding that the Order stated that the SCRD Local Board found the latter evidence to be contradictory.  This highlights the need for local boards of health to carefully consider the submissions they hear, and provide appropriate reasons when explaining what they accept and reject, and why.

 

One issue that was not considered in the decision of Mr. Justice Butler was the relationship between the forestry permits and approvals given to WFP, and the authority of the SCRD Local Board under the Health Act to issue the Order.  While WFP suggested at the stay application that it would argue this issue at the hearing of the appeal, ultimately it did not do so.  Thus, this issue remains unresolved.

 

Much of Mr. Justice Butler’s decision is limited to the specific facts of the case.  What is perhaps the more important lesson of the case is the potential role of Health Act orders as another tool available to local government.  As Mr. Justice Butler noted:

 

“the issues on which a local board of health must adjudicate relate to issues of public health.  Public health is an issue of wide-ranging public interest.  . . . public health is often inescapably related with other issues that councillors may have expressed their views on and made decisions about while in office.  These could include issues such as the environment, industry and employment.”

 

            Local governments increasingly find themselves searching for means to address matters related to public health and for which the appropriate tools are not always apparent.  Conflicts between the protection of community watersheds and activities such as forestry are not restricted to the Sunshine Coast, but are found throughout British Columbia.  Likewise, communities throughout British Columbia face challenges related to the impact of industry and other activities on air quality.  While the precise limits of local government jurisdiction under the Health Act remain uncertain, Mr. Justice Butler’s decision does not hold that local governments lack jurisdiction, but that its exercise must be appropriately supported by evidence. 

 

There are indications that the Public Health Act proposed by the Provincial government to replace the Health Act will not include a clearly defined (or perhaps any) role for local government.  The loss or reduction of the powers available to local government in the Health Act would be unfortunate, and is reflected in a resolution endorsed at the 2007 UBCM convention that supports the continuation of local boards of health.  Bearing this in mind, local governments should consider the opportunities provided to them by the Health Act, while those opportunities still exist.

                                           

This client bulletin is intended to provide commentary on issues of interest or significance to local governments in British Columbia.  Its comments reflect the views of the author and are not intended to provide legal advice or establish a legal retainer.  For specific advice or information, please directly contact the author.  If you wish to be removed from the distribution list for legal bulletins, or if you have any comments or questions, please contact James Yardley at 604-689-5263, or jgy@murdymcallister.com.  

© 2006 Murdy & McAllister