Environmental Fourth Floor 747 Fort Street Appeal Board ...

Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1

APPEAL NO. 2002-HEA-015 In the matter of an appeal under section 8(4) of the Health Act, R.S.B.C. 1996, c. 179. BETWEEN: Janette O’Flaherty APPELLANT AND: Senior Environmental Health Officer RESPONDENT AND: Robert and Beverly Stuart THIRD PARTY BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Panel Chair DATE OF HEARING: September 11-13, 2002 Concluded in writing on November 1, 2002 PLACE OF HEARING: Victoria, B.C. APPEARING: For the Appellant: Janette O’Flaherty Clifford Proudfoot, Counsel For the Respondent: Glen Smith For the Third Party: James R. Schmidt, Counsel

APPEAL

This is an appeal by Janette O’Flaherty of the May 13, 2002 decision of Glen Smith, Senior Environmental Health Officer (the “EHO”) with the Vancouver Island Health Authority, to approve a sewage disposal permit application for 261 Forbes Drive, Thetis Island, owned by Robert and Beverly Stuart (the “Permit Holders”).

The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act, R.S.B.C. 1996, c. 118, and section 8(4) of the Health Act (the “Act”). The Board, or a panel of it, after hearing all the evidence, may decide to confirm, vary, or rescind the decision of the EHO.

In the Appellant’s Notice of Appeal, she seeks an order rescinding the permit and requests that her property interests be represented by means of a formal consultation process prior to any further permits being granted. She also asks for costs “including engineering, geo-scientific, surveying, research, associated expenses and legal.” At the conclusion of the oral hearing, the Appellant withdrew her request to have the permit rescinded.

APPEAL NO. 2002-HEA-015

BACKGROUND

The subject property is a waterfront lot located on Thetis Island with a legal description of Lot 6, DL 5 and 6, Plan 23087, Thetis Island, Cowichan District (the “Property”). The Appellant lives on Lot 7, also a waterfront lot, which is adjacent to the Property.

The Permit Holders have owned the Property for 30 years. The Property has remained undeveloped during this time except for a capped well and a gravel driveway. The Permit Holders plan to build a two-bedroom retirement home, which the proposed sewage disposal system will serve. Over the last 30 years, the Permit Holders have visited the Property for picnics and while visiting friends on the island.

Both properties are rectangular in shape and are angled in a northeast, southwest direction. Forbes Drive is located on the northeastern boundary and Stuart Channel is located on the southwest boundary of each property1. Of the two properties, the Appellant’s is the most northerly.

The dimensions, elevations, and salient features of the Property are:

Area: The Property covers a 35-metre (on the waterfront and road sides) x 120-metre area or approximately 1-acre.

Slope: The elevation ranges from approximately 25 metres near Forbes Drive, to sea level along the beach.

Access: A gravel driveway, from Forbes Drive, was constructed in 2001.

Surface and ground water flows: A 3-metre wide, 1-metre deep old skidder trail or swale (hereinafter “skidder trail”) runs diagonally across the Property, approximately 33 metres inland from the waterfront. The skidder trail proceeds from Lot 7, across the boundary between the properties, and then through the Property curving in a northwest to southerly direction. The skidder trail is located immediately below the proposed absorption field. At times, surface water flows along the skidder trail towards a drainage feature, which is located in the southwest corner of the Property, perpendicular to the skidder trail. This drainage feature discharges surface water onto the beach. The nature of this drainage feature is at issue in the appeal.

Other features: The Property has a capped well located near Forbes Drive. The well was built many years ago to be used as a domestic water source. Tree cover on the Property includes Douglas fir and arbutus. A natural oyster bed exists along the Property’s beach access to Stuart Channel.

On February 6, 2001, the engineering firm Focus Intec submitted the initial application for a sewage disposal permit on behalf of the Permit Holders. This application contained only preliminary designs and did not contain construction details.

1 Compass directions, distances, and elevations used to describe the Property are not precise; but serve to

define the orientation of the Property and various landmarks.


On March 1, 2001, Focus Intec provided the EHO with supporting documents for the application and detailed drawings for the proposed system. The initial design was for an “Ecosolve Technologies USBF” package treatment plant and a water interceptor system.

The preliminary application was reviewed and assessed by the EHO. On July 10, 2001, the EHO received a revised preliminary proposal for an advanced sewage treatment system called a “low rate intermittent sand filter,” which was incorporated into the design after Focus Intec consulted with Giles Environmental Engineering.

On August 28, 2001, Focus Intec submitted the formal design proposal for the Property which modified the proposed system from a package treatment plant to a two-chambered septic tank with an effluent filter and pump, an intermittent sand filter, pressure distribution, and a raised mound absorption field with 3 lateral gravel beds.

The EHO reviewed the revisions and consulted with Murray Sexton, a professional engineer with the Vancouver Island Health Authority, regarding the design of the lateral absorption beds and the use of pea gravel in the lateral beds. He also conducted site visits to the Property in December 2001 and again in January of 2002.

The formal proposal was again revised after the Permit Holders consulted with Gulf Island Geotechnical Services regarding the EHO’s concerns about surface and ground water flow within the absorption field. Gulf Island Geotechnical Services compiled a report, dated February 19, 2002, which made recommendations regarding the design of the interceptor drain and effective procedures for infilling the skidder trail.

On April 4, 2002, the EHO received the final submission for the sewage disposal permit. The final submission from Focus Intec incorporated the Giles Environmental Engineering intermittent sand filter design and the recommendations from Gulf Island Geotechnical Services.

The proposed system also incorporates an interceptor drain system intended to maintain unsaturated conditions in the ground beneath the absorption field and downslope of the proposed system. The interceptor system is to divert ground and surface water from upslope of the absorption field.

The interceptor system includes a subsurface drain along the north, east, and south borders of the absorption field. The drain will intercept ground water from north and east of the absorption field and disperse it on the Property downslope of the absorption field.

The construction plan for the drain system includes building a small ditch near the northern side of the absorption field, along the northern edge of the Property. The evidence before the Panel is that the ditch will prevent water from flowing onto Lot 6, by directing discharge from the interceptor drain downslope on the Property and toward the beach. This ditch will also redirect surface water that drains down the


skidder trail from Lot 7, toward the absorption field. The plan also includes the installation of a subsurface clay dam in the skidder trail, which is intended to redirect drainage in the skidder trail away from the absorption field, and direct the discharge from the interceptor drain downslope on the Property. The clay dam is also intended to prevent breakout of effluent onto the skidder trail. Finally, the plans include filling portions of the skidder trail and drainage feature with native, permeable material to encourage the natural seepage of diverted water and treated effluent.

Prior to granting the permit, the EHO discussed the proposed system with Ian Ralston who was retained to construct the system. The EHO approved the Permit Holders’ application for a sewage disposal permit on May 13, 2002.

The final design that was approved by the EHO is for a sewage disposal system that consists of:

• A two-chambered septic tank with an effluent screen to remove solids and provide partial biological treatment;

• An effluent pump on a timer allowing doses of effluent to enter a “low-rate intermittent sand filter” to provide biological and microbiological treatment; and

• Alternating dosing siphons to disperse the effluent into an absorption field which is comprised of 3 lateral, step-down gravel absorption beds to provide further treatment of the effluent prior to its seepage into the soil.

The following conditions were attached to the permit:

1) This permit is issued in accordance with the provisions of the Health Act B.C. Reg. 411/85 Section 7(1) – Alternate Methods.

2) Focus Intec Engineering report dated August 28, 2001 (per George Giles) and accompanying drawings shall form part of this permit.

3) Gulf Island Geotechnical Services report and recommendations dated February 19, 2002 shall form part of this permit.

4) In view of the site topography and disposal field location relative to the building, extreme caution must be exercised during construction of both the dwelling and the septic disposal system to avoid removal/compaction/smearing of soils in the disposal site and the receiving environment.

It is recommended that the design engineer be consulted at all major phases of construction to minimize the potential of damage to the disposal field site.

5) In accordance with the provisions of the B.C. Ministry of Health’s Low Rate Intermittent Sand Filter Protocol, only OSI [Onsite Systems Inc.] designs are approved at this time. Prior to construction, the sewage disposal permit must be amended to a Ministry of Health Approved Filter design.


6) The design engineer shall provide certified as-built drawings on completion of the sewage disposal installation.

On May 28, 2002, the Appellant appealed the permit approval on the basis that the EHO did not properly exercise his discretion under the Act and Sewage Disposal Regulation, B.C. Reg. 411/85 (the “Regulation”) when issuing the permit, and that the proposed system will “fail to perform its function.” In her Notice of Appeal she identifies the following concerns:

• The EHO ignored pertinent in-depth previous documented engineering and surveying fact;

• The design calls for significant changes in grading to the area immediately below the proposed field and, under the designs, “inevitable breakout of effluent will be redirected to flow over my well’s setback zone”;

• The system does not meet the setback to the “high water mark” of the ocean;

• The site of the field is in a seasonally waterlogged area. An underground “stream” (as defined in the Water Act) erupts in the proposed field. This natural unregistered stream is shown on the topographical component of the drawings and is seen to make its way for approximately 30 metres overland to the tidal area of the beach. The stream leaves the Property from the south side via a natural ravine;

• In an attempt to drain the proposed field, unknown quantities of accelerated and concentrated water are to be diverted from the Property and “will flow directly onto my land and flood my property and home”;

• The method of diverting water from the proposed field is via a diversion drain located above the field. In computing the hydraulic component for the diversion drain, no allowance for ground water, springs and underground streams has been made;

• The EHO has approved theoretical designs that are not proven to work in practice; and

• A dam is proposed to block a 270-foot long historical channel that traverses 3 properties, ending on the Property. The channel has historically carried surface and subsurface run-off and no alternative arrangements have been made to manage the water which will be trapped on the Appellant’s lot causing flooding and other serious hazards.

The Appellant maintains that the results of the development plans for the Property are:

• Infilling of land below the proposed septic field will result in break out of sewage effluent into her well’s set back zone (30 metres);

• Re-routing of water to flow on her property will result in unknown quantities of water being released 5 feet from her property line. The point of discharge


coincides with a dip in the land. The water will flow to her property and flood her land and garage and garage pit; and

• Blocking the passage of water entering the Property by damming the historical channel will result in water being trapped on her property, flooding her house and raising ground water levels to create other unforeseen problems.

Prior to and during the hearing, the Appellant’s concerns expanded to include the following:

• the spacing of the lateral absorption beds;

• compliance with Islands Trust bylaws;

• the experimental nature of the proposed system; and

• the potential for contamination of shellfish in Stuart Channel.

The EHO and the Permit Holders ask the Board to confirm the issuance of the permit and dismiss the appeal. Both submit that the proposed system complies with the Act and Regulation, and that it poses no risk to public health. The Permit Holders also seek an award of costs in this appeal.

During the course of the hearing, the Panel heard from all three parties to the appeal as well as seven other witnesses, including the two professional engineers summonsed by the Appellant and two professional engineers called by the Permit Holders.

Following the conclusion of the hearing, the Appellant retained legal counsel and the services of two consultants: Dr. Tom Watson, Ph.D., R.P.Bio., of Triton Environmental Consultants Ltd. and Allan Dakin, P.Eng., of Piteau Associates Engineering Ltd. Dr. Watson was retained to:

• Provide a written report on the nature and quality of habitat values of the marine foreshore and adjacent areas;

• Provide an opinion as to whether the marine foreshore would be adversely affected by the proposed development; and

• Provide an opinion as to whether the drainage feature on the Property would be considered a stream as defined in the Water Act.

Mr. Dakin was retained to review information pertaining to the Permit Holders’ proposed interceptor drain system, to visit the site and to respond to the following 2 questions:

• What effect, if any, will the installation of the proposed permitted drain system on the Property have on the renovation of effluent discharging from the Appellant’s drain field?

• What are your observations and conclusions regarding the water feature located on the southwest portion of the Property?


The opinions of these consultants are contained in their respective reports, both dated October 4, 2002.

Counsel for the Appellant requests that the Panel reopen the hearing and accept the reports of Dr. Watson and Mr. Dakin as evidence in the appeal. The Appellant states: “[s]ince the Hearing, new evidence has revealed that the effluent to be discharged as a result of the construction of the System will cause a threat to public health and the environment.”

The Board subsequently offered all the parties an opportunity to respond to the Appellant’s request.

ISSUES

1. Whether the Panel should reopen the hearing to receive the evidence from Dr. Watson and Mr. Dakin.

2. Whether the proposed sewage disposal system complies with the provisions of the Act and the Regulation and will adequately protect the public health.

3. Whether costs should be awarded in this case.

In this appeal the Appellant also argued that:

• the role of the EHO in land development decisions needs to be clarified;

• the proposed home will be located on an area of land that is subject to erosion by tidal water which makes the foundation for the house unstable; and

• ground water will be diverted that could impact tall trees on her property and create hazards including destabilized land and windthrow.

The Panel finds that these matters are beyond the jurisdiction of the Board under the Act and the Regulation. Accordingly, the Panel will not give any further consideration to these matters.

DISCUSSION AND ANALYSIS

1. Whether the Panel should reopen the hearing to receive the evidence from Dr. Watson and Mr. Dakin.

According to Salinas v. Canada (Minister of Employment and Immigration) (1992), 93 D.L.R. (4th) 631 (Fed. C.A.), if a decision-maker has not yet made a final decision in the matter before it, the decision-maker can return to the matter to consider new evidence.

The Board’s general policy in relation to accepting new evidence is set out in its Procedure Manual. The policy states:


Reopening a hearing on the basis of new evidence

Once the record is closed, no additional evidence will be accepted from the parties unless the Board decides that the evidence is material to the issues, there are good reasons for the failure to produce it in a timely fashion, and acceptance of such evidence is in accordance with the principles of natural justice and procedural fairness. (p. 35)

The Appellant submits that the reports compiled by Dr. Watson and Mr. Dakin offer evidence that is material, compelling and highly relevant to the issues in this appeal. She also submits that the Board should give substantial weight to the opinions expressed in their reports given their respective qualifications and experience.

The Appellant states that Dr. Watson is an aquatic toxicologist and a leading fisheries biologist in the province whose expertise includes numerous marine foreshore and stream classification assessments as identified in his curriculum vitae. She states that Mr. Dakin is one of the leading experts in British Columbia regarding ground water engineering and hydrogeology. His expertise includes hydrological investigation and preparation of design criteria for numerous drainfields for absorbing sewage effluent from package treatment plants, and septic tank systems ranging from 1 to 400 m3/day capacity.

The Appellant submits that the opinions of these experts reveal that the proposed system will threaten public health and the environment and that, should the Board refuse to consider the reports, it will fail in its duty to protect public health and the environment. The additional evidence provided by Dr. Watson and Mr. Dakin is said to establish that:

• the proposed system cannot comply with the Regulation having regard to the site conditions and the safeguarding of public health;

• the location of the proposed interceptor drain on the Property will affect the functioning of the Appellant’s absorption field, causing inadequately treated effluent from her sewage disposal system to be discharged into the marine environment, thereby increasing the risk of harm to marine life and habitat;

• inadequately treated effluent will impact a stream, as defined in the Water Act, that is located in the southwest corner of the Property, which will then impact the marine foreshore;

• the proposed filling of the stream channel requires authorization under section 9 of the Water Act; and

• inadequately treated effluent threatens public health because the Appellant, and other members of the public, harvest shellfish from the foreshore of Stuart Channel.

The Appellant maintains that she has legitimate reasons to explain her failure to submit this evidence sooner. She submits that:


• she was unrepresented by counsel at the hearing and she did not receive any advice from counsel prior to the hearing;

• the matters in this appeal are highly technical and require expert evidence to resolve; and

• she only became aware of how this additional evidence would assist her case after seeking the advice of counsel after the hearing.

The Appellant submits that the additional evidence resulted from inquiries that she made after Ian Ralston’s testimony on the final day of the oral hearing. The Appellant submits that Mr. Ralston stated that ground water flows from the Appellant’s property to the Property in the vicinity of both the Appellant’s sewage disposal system and the proposed system. The Appellant submits that this testimony caused her to retain counsel and to further investigate the issue of ground water flow from her lot to the Property. The Appellant argues that even if she had counsel at the time of the hearing, she would not have had time to produce this evidence before the hearing closed.

Finally, the Appellant notes that the Board structures its proceedings on “procedural flexibility” and argues that it needs to keep its process “open and accessible to unrepresented parties.” The Appellant argues that the Board must balance efficiency with “getting to the right decision.” She submits that this evidence, compiled by two pre-eminent experts, shows that if the Permit Holders construct the proposed system as designed neither public health nor the environment will be protected. The Appellant submits that the Board should not let the interest of procedural efficiency override the evidentiary value of the reports.

The EHO submits that it is not necessary for the Board to accept the additional evidence. He argues that the Board does not need to hear additional evidence about the proposed system’s interceptor drain, unless the Board is convinced that there are “extraordinary circumstances” which would require it to substitute its own discretion for the appropriate setback distance determined by the EHO. The EHO argues that the additional evidence does not reveal any conclusive information that the proposed system is a health hazard. Also, the EHO submits that the Panel has heard enough evidence to be able to determine if the drainage feature in the southwest corner is a stream.

The Permit Holders strongly oppose the Appellant’s application to introduce additional evidence. They submit that the requirements for the acceptance of new evidence are set out in Virani v. Dhami, [2002] B.C.J. No. 1019 (S.C) (Q.L.) (hereinafter Virani):

• the evidence must be material;

• the discretion to admit the evidence must be used sparingly;

• the discretion is not designed to allow a party to present its case twice;

• the discretion relates to new factual evidence, not opinions; and


• the failure to produce the evidence must be because of factors which could not have been avoided by due diligence.

The Permit Holders submit that these requirements also apply to proceedings before boards and tribunals, and that the Board has relied on these principles in past decisions (see Alpha Manufacturing Inc. v. British Columbia (Ministry of Environment, Lands and Parks), [1996] B.C.E.A. No. 28 (hereinafter Alpha Manufacturing)). The Permit Holders submit that the Appellant’s application does not meet these requirements.

The Permit Holders submit that the new evidence is neither material nor relevant to the issues in the appeal. They argue that the reports do not definitively establish that the proposed system poses a threat to public health and the environment. Rather, the Permit Holders argue that the reports are only tentative in their assessment of the health and environmental impact of the proposed system, as illustrated by words like “potential” health hazard. The Permit Holders further submit that they “do not accept the qualifications, factual foundations, or conclusions underlying or expressed in the reports upon which the Appellant now seeks to rely.”

The Permit Holders also oppose the application to introduce additional evidence because they submit that the “new” evidence is actually based on facts already within the knowledge of, or already alleged by, the Appellant. Therefore, the Permit Holders submit that the Appellant had ample means and opportunity to develop this evidence either prior to the hearing, or before the close of the hearing, and that she cannot offer a valid explanation for her failure to do so. For example, the Permit Holders submit that the Appellant first took issue with the proposed system in early 2001. Since that time, the Permit Holders submit that the Appellant has made numerous references to her legal and technical advisors, including reference to her retention of legal, engineering, and geoscience professionals in her Notice of Appeal. Further, the Permit Holders note that the Appellant’s husband is a professional engineer, and that the Appellant summonsed two professional engineers as witnesses during the hearing. Therefore, the Permit Holders submit that the Appellant’s attempt to portray herself as someone unable to identify issues or formulate evidence for the hearing, due to a lack of professional advice and assistance, is unfounded.

The Permit Holders submit that it is also unfounded that the additional evidence came about only as a result of issues that came up on the last day of the hearing. The Permit Holders argue that the Appellant raised an extremely broad range of issues prior to and during the hearing. They submit that the record of the hearing demonstrates that the Appellant has been fully aware of the issues that she now argues she did not learn about until the testimony of Ian Ralston, or until she retained professional advice. These issues include the movement of ground water from the Appellant’s lot to the Property, the operation of the interceptor drain and the acceleration of water flow to the ocean, and the potential contamination of shellfish.


Specifically, the Permit Holders note that the Appellant retained David Polster who provided a report on ground water flow and testified at the hearing. However, for some unknown reason, his report did not explore the issue of ground water flow relating to the absorption field on the Appellant’s lot. They also note that the Appellant pointed to the possibility of oyster beds in Stuart Channel becoming contaminated, as referenced in a letter to the Board on August 28, 2002, and she questioned the effectiveness of the interceptor drain at various times during the hearing.

The Permit Holders also argue that the Appellant was given latitude to raise entirely new issues during the hearing, and that the Panel gave the Appellant the opportunity to reopen her case in light of any new issues that may have arisen from the other parties’ submissions. The Appellant declined this opportunity, even though she made numerous comments during the hearing about leading additional evidence at the conclusion of her case, including a request to adjourn the hearing so that she could call 12 more witnesses to testify about the existence of the “stream” on the Property.

The Permit Holders submit that should the Panel refuse the Appellant’s application, there would be no violation of the rules of natural justice and procedural fairness. However, if the Panel decides to grant the Appellant’s application and reopen the hearing, the Permit Holders maintain that they would be prejudiced.

First, the Permit Holders submit that they have already incurred considerable time and monetary expense in this appeal. They argue that acceptance of the additional evidence would render the 3-day hearing, that included the testimony of 10 witnesses, including 4 professional engineers, meaningless. Further, the Permit Holders submit that reopening the proceedings where there is a significant time lapse would impact their right to fairness because a time lapse could cloud the evidence and make adjudication more difficult.

Second, the Permit Holders argue that natural justice and procedural fairness demand that all parties have the right to know the case they have to meet prior to presenting their own evidence. The Permit Holders argue that the requirement for a statement of points and advance notice of expert evidence protects this right. The Permit Holders submit that the Appellant is essentially seeking to reopen the proceedings and introduce new issues, not based on new facts, putting the EHO and the Permit Holders in the position of having to respond to new opinion evidence and argument. The Permit Holders submit that this would occur after both the EHO and the Permit Holders have placed all of their evidence and argument before the Panel. The Permit Holders argue that without conducting a complete re-hearing and abolishing the existing record, there would be no way of ameliorating the prejudice to their case and to the EHO’s case.

The Permit Holders also note that, prior to the hearing, the Appellant placed considerable and pointed emphasis on the need for the Permit Holders to comply with notification requirements for opinion evidence. The Permit Holders note that the Appellant also took a strong exception to the EHO’s reliance on documents relating to her sewage system. The Permit Holders submit that the position taken


by the Appellant on this application is a complete repudiation of her positions in these previous submissions.

The Appellant replies that the reports are clearly material to this appeal because they establish that the proposed system creates a threat to public health. The Appellant notes that the Permit Holders have taken issue with the qualifications of both Dr. Watson and Mr. Dakin, but that they did not identify what qualifications they do not accept, nor did they provide any evidence to refute the opinions expressed in the reports.

The Appellant states that she did not consult a lawyer with respect to this appeal until she retained counsel after the hearing. The Appellant submits that any references that she may have made to retaining counsel, prior to this time, would have been to a single telephone call that she made to a lawyer regarding the erosion of her driveway. The Appellant also submits that at no time prior to or during the hearing did the issue of a breakout of effluent from her sewage system, at the location of the proposed interceptor drain, arise. The Appellant submits that she never raised the issues addressed in the reports in any correspondence to the Board, nor at the hearing.

Regarding the Permit Holders’ argument that acceptance of the evidence will prejudice their case, the Appellant replies that this overstates the effect of this application. The Appellant is fully prepared to produce and question both Dr. Watson and Mr. Dakin in Victoria on an expedited basis to provide additional information to the existing record. The Appellant submits that this information is not intended to replace the existing record; it is merely intended to supplement it.

The Panel’s Findings

According to the Board’s Procedure Manual, in order for it to accept additional evidence, the Panel must be satisfied that,

• the evidence is material to the issues;

• there are good reasons for the failure to produce the evidence in a timely fashion; and

• acceptance of the evidence is in accordance with the principles of natural justice and procedural fairness.

The criteria for the acceptance of new evidence set out in Virani, were based upon Rule 40(7) of the British Columbia Supreme Court Rules. The principles behind the considerations in the Board’s Procedure Manual and those in Virani are essentially the same and are relevant to this application. Both the courts and this Board are concerned with preserving the integrity of their respective processes and with deterring or preventing abuses of those processes. One such abuse to be prevented is enabling a party to “close their case and then later patch up deficiencies in the evidence” (McLeay v. Kelowna (City) (2002), B.C.L.R. (4th) 187 (S.C.)), or, to “reestablish a broken down case with the aid of further proof” (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 as cited in Re


Jordan et al. and York University Facility Association et al., [1977] 84 D.L.R. (3d) 557 (Ont. Div. Ct.) at 574). In the Clayton case, the Court also recognized that the exercise of the discretion to accept additional evidence requires a balancing of factors. It stated:

If the power [to allow additional evidence] is not exercised sparingly and with the greatest care fraud and abuse of the Court’s processes would likely occur. Without that power however injustice might occur.

Although these statements are made in relation to an application to adduce evidence after a judgment was pronounced, but before it was entered, there is no material difference between that situation and the one now faced by this Panel.

In the present case, the Panel begins by noting that the Appellant has shown a sophisticated understanding of the appeal process and Board procedures. She has taken advantage of many procedural remedies and applications prior to and during the hearing.

The Panel is also of the view that the Appellant’s statement that she did not consult with counsel on this matter until after the hearing is curious since the Permit Holder is correct that the Appellant makes references to her “legal advisors” in early correspondence with the other parties (e.g., her February 23, 2001 letter to the EHO), and in her Notice of Appeal she requests costs, including “legal” costs. If the Appellant did not consult counsel on the matters, which are the subject of this appeal until after the hearing, it appears that her references to her legal advisors in early correspondence are merely attempts to influence or intimidate the recipients of her letters.

In her reasons for failing to adduce this evidence sooner, the Appellant states that the matters in the appeal are “highly technical”, require expert evidence to resolve, and that she only became aware of how this additional evidence would assist her case after seeking legal advice after the hearing. The Panel is of the view that the technical nature of the matters raised in the appeal should not have come as a surprise to the Appellant during the oral hearing and, in fact, did not come as a surprise to the Appellant. The evidence supports the conclusion that she has always been well aware of the technical nature of her appeal and the need for expert evidence. In two separate emails to the Permit Holders, one dated June 2, 2002, the other dated June 5, 2002, the Appellant requested permission for her “professionals” and “specialists” to enter the Property to conduct assessments. In her Notice of Appeal the Appellant again requested access to the Property for “geotechnical and hydraulic engineering, geoscientist, surveying and habitat protection”. It was presumably to address the technical nature of the appeal that she retained the services of David Polster and tendered him as a witness at the hearing, and sought summonses for a number of the engineers who had been involved with the design of the system. Given these facts, the Appellant’s statement that she only became aware of how the new expert evidence would assist her case when she sought the advice of counsel after the hearing is unpersuasive.


The Appellant also submits that the additional evidence resulted from inquiries that she made after Ian Ralston’s testimony on the final day of the oral hearing. The Panel questions this claim. This is particularly so in relation to the new evidence presented regarding the nature of the drainage feature in the southwest corner of the Property. From the outset, the Appellant maintained that that drainage feature is a “stream” as defined in the Water Act. She makes this claim initially in her Notice of Appeal. When she questioned witnesses at the hearing, she again focused on the nature of this drainage feature. Mr. Polster also testified that the drainage feature was a stream. Despite her focus on this drainage feature both prior to and during the hearing, the Appellant specifically asked Dr. Watson and Mr. Dakin to provide their opinions on whether this feature is a stream and the implications that flow from such a conclusion. Both witnesses opine that the drainage feature is a stream, but their only stated concern is that, as a stream, the drainage feature cannot be “infilled” without approval from the Ministry of Water, Land and Air Protection.

The Panel notes that the EHO submits that the Appellant has already contacted the Ministry and the Ministry advised that the drainage feature is not a stream. The Appellant replies that the conclusion of the Ministry that the drainage channel is not a stream was based on advice that the Ministry had received from the EHO, and not on the Ministry’s own independent investigation. While it is apparent that the Appellant does not agree with the Ministry, this is not a new issue that warrants further evidence. The Panel also notes that neither Dr. Watson nor Mr. Dakin have been on the Property - they only observed the feature from the foreshore.

The Appellant also states that she needs to reopen her case to provide this expert evidence because the direction of the ground water flow from her lot to the Property was discovered on the last day of the hearing as a result of Mr. Ralston’s evidence. The accuracy of this statement is also in question. In his report, Dr. Watson states that the Appellant’s concern is that construction of the septic system will result in redirection of current drainage patterns on her property, subsequently causing downstream contamination of the marine foreshore, flooding and geotechnical instability as well as unnecessary tree removal. The Panel notes that the Appellant raised these matters at various times in the appeal. These issues were raised in her Notice of Appeal in May of 2002, in her Statement of Points in June of 2002, as well as in other correspondence with the Board such as her August 28, 2002 letter in which she refers to contamination of oyster beds. The Appellant’s new evidence does not contribute any material new factual evidence or further assist the Panel in its understanding of this matter and does not warrant a reopening of the hearing to consider it in this regard.

Further, the Appellant had reviewed the Focus Intec March 2001 report and obtained a summons from the Board requiring Rosa Telegus, the engineer responsible for the report, to testify at the hearing. That report states in part:

Surface water is presently being directed through the proposed septic field area via a surface swale [the skidder trail]. This swale crosses the lot in a north-east to south-west direction, draining into the ocean in the south-


west corner of the lot. It appears as if groundwater follows this pattern of flow. [emphasis added]

The Appellant’s expert, Mr. Dakin, quotes this report and concludes that his own observations of the Property are consistent with the previous findings on the Property’s ground water flow. Therefore, the direction of ground water flow should not have come as a surprise to the Appellant as she alleges.

The Panel also notes that, in her Notice of Appeal, as well as in her evidence and argument at the hearing, the Appellant made various statements about the direction of water flow from her lot to the Property. The Panel acknowledges, however, that the focus was generally on flooding of her property and the effectiveness of the proposed drainage system vis-à-vis the Permit Holder’s system – not vis-à-vis the Appellant’s system.

Given the Panel’s concerns, acceptance of the Watson and Dakin reports may contribute to the type of abuse identified by the courts, above. The Panel notes that the Appellant’s actions have resulted in uncertainty in the process. The other parties have presented their cases to the Panel and are now understandably concerned with the possibility of having to respond to new opinion evidence, as well as the additional expense associated with this application. The Appellant’s actions of retaining legal counsel and experts shortly after the oral hearing concluded suggest that the Appellant is motivated by a desire to “patch up” deficiencies, or perceived deficiencies, in the evidence she presented during the hearing.

Despite the fact that the Appellant was aware, or should have been aware, that this evidence would be needed to support her case, and despite her references to consulting lawyers in her letters to the other parties, she chose not to retain the assistance of these professionals until after the hearing closed. In the Panel’s view, this borders on being an abuse of the process. However, the information she has now presented on the potential impact of the interceptor drain to the functioning of her system is material and relevant to the ultimate question before the Panel, and the parties have had an opportunity to comment on that information. Although the Panel is concerned with the Appellant’s conduct and does not want to encourage this type of application, these concerns must be weighed against the importance of having the best evidence before the Panel to ensure that it is able to make a well informed decision and prevent an injustice, as warned against by the Court in Clayton.

With some reluctance the Panel is prepared to exercise its discretion to consider those aspects of the Dakin and Watson reports, and the submissions provided in reply, which address the distance of the proposed drainage system to the Appellant’s sewage disposal system and whether a risk to public health or the environment may result.

Although there is also a request to reopen the oral hearing to allow cross-examination of the experts, the Panel finds that this is not necessary. The Panel has considered the reports and has addressed them in its decision on the merits of the appeal below.


2. Whether the proposed sewage disposal system complies with the provisions of the Act and Regulation and adequately protects public health.

The detailed requirements for the approval, construction and installation of sewage disposal systems are found in the Regulation. Schedule 2 of the Regulation sets out the minimum depth of unsaturated, natural soil needed for a conventional septic tank system. Section 1 of Schedule 2 states:

1. Septic tank systems are limited to lots where an impervious layer of soil or bedrock, or the ground water table, is greater than 1.2 m [4 ft.] below the ground before it has been artificially disturbed by placement of fill, excavation or otherwise.

Since the Property did not meet this requirement, the EHO was able to consider the Permit Holder’s proposal for an alternate method under section 7 of the Regulation, which states:

7 (1) Where a medical health officer or public health inspector is satisfied that it is impossible for a person to comply with

(a) in the case of a conventional septic tank system, sections 1, 16 or 22 of Schedule 2, or

…

but that the person can comply with all other provisions of the appropriate schedule, he may issue a permit to construct under section 3, containing conditions that he considers appropriate to meet the omitted standards having regard to safeguarding public health. [emphasis added]

The permit was issued under this section.

The Appellant argues that the system does not contain appropriate conditions to safeguard public health. The Appellant’s concerns with the proposed system and its ability to protect the public health have been consolidated into 9 categories for the purposes of this appeal. They are:

a) Inconsistent and contradictory historical engineering data, and inconsistent, contradictory and incorrect data in the permit application.

b) Questionable legitimacy of designs.

c) Lack of feasibility of designs (unlikely to be able to build as required, cannot properly be maintained/no maintenance outlined).

d) No recognition, assessment, or mitigation for detrimental/deleterious environmental impacts to neighbouring properties or adjacent public lands.

e) Designs do not meet minimum mandatory setback requirements to the ocean and her well.


f) Designs do not meet other bylaws and requirements.

g) Experimental type designs have not been proven to work on site.

h) Water diversion designs do not meet flood protection requirements.

i) Potential contamination of shellfish.

The relevant portions of Schedule 2 of the Regulation at issue in this appeal are as follows:

2 A reference in this schedule to

…

(b) an interceptor drain means a drain or ditch located so as to intercept the surface or ground water flowing towards a sewage disposal system site and direct such water away from that site.

…

18 An absorption field shall be located not less than

(a) 3 m [10 ft.] from a building,

(b) 3 m [10 ft.] from a parcel boundary,

(c) 3 m [10 ft.] from an interceptor drain,

(d) 30.5 m [100 ft.] from a source of domestic water,

(e) 30 m [100 ft.] from the high water mark,

…

The phrase “high water mark” that is used in section 18(e), is defined in section 1 of the Regulation as:

“high water mark” means a point on the shoreline which corresponds

(a) for a controlled lake, to the highest water level within the normal operating range for that lake, and

(b) for any other body of nontidal water, to the average highest water level calculated from measurements taken over a sufficient number of years to enable a fair and reasonable estimate;

…

Each of the Appellant’s 9 areas of concern is addressed separately below.


a. Inconsistent and contradictory historical engineering data, and inconsistent, contradictory, and incorrect data in the permit application.

The Appellant submits that the Permit Holders and the EHO relied on inconsistent and contradictory historical engineering data in the design of the proposed system and in the approval of the permit.

She submits that there are inconsistencies in the design drawings and in the permit documentation. She submits that the identity of the design engineer on the permit documentation and the role that each engineer played in contributing ideas and making revisions to the design are unclear. She also submits that the lack of an engineer’s seal on the final design, and the fact that two different engineer’s signatures appear on the permit application, are further evidence of these inconsistencies. The Appellant further submits that there is conflicting information contained in various engineering reports made during the design process.

The Permit Holders submit that there are no material inconsistencies in the engineering data or the permit documentation that would warrant rescission of the permit. They provided documentary evidence and oral testimony to explain how the design of the system changed during the permit application process. They submit that previous designs contemplated for the proposed system are of no consequence in this appeal. The Permit Holders submit that the ultimate question should be whether the final design and drawings for the proposed system satisfied the EHO.

A number of the design engineers testified during the hearing either in person or by teleconference; namely, Rosa Telegus, David Conway, George Giles and Robert Potter. The EHO submits that these engineers explained and addressed any discrepancies in the engineering data and that he is satisfied with the final design and drawings.

The Panel finds that despite the numerous design revisions and consultations with engineers, there is no material inconsistency in the engineering data and design of the proposed system. The Panel agrees that there were numerous drawings and reports drafted during the design process that are confusing to sort through. However, the Panel finds that the EHO’s ability to make an informed decision on the final permit application was not affected by the number of design documents.

The Panel finds that the EHO was given a clear and complete final application submission on which to base his decision. The testimony of Rosa Telegus, David Conway, George Giles, and Robert Potter illustrates that, in a complicated engineering project, many engineers will contribute ideas that lead to the end product or design. George Giles testified that he was unaware that the final design lacked his engineering seal; however, he affirmed that he takes full responsibility for the final design. The EHO was fully aware of the revisions made to the design during the application process, as some of the changes were based on his recommendations. The Panel finds that the EHO had a clear understanding of the final design prior to making his decision.


b. Questionable legitimacy of designs.

The Appellant submits that the design of the proposed system is of questionable legitimacy. By this she appears to mean that the system was designed by individuals who are neither qualified nor certified to design sewage disposal systems. For example, in a letter to the Board, dated August 16, 2002, she alleges that Focus Intec used an “amateur” to design the system. Her evidence illustrating the confusion in drawings and engineering reports overlapped as evidence on this issue.

The Permit Holders argue that the Appellant’s assertion is without merit and is unsubstantiated. The Permit Holders adduced evidence supporting the legitimacy of the design. This evidence included engineering documents (copies of design drawings, technical reports, and the permit application) and the oral testimony of the design engineers. They submit that their evidence illustrates that the system uses well-established technology and designs, and that it is essentially a “belt and braces” approach that will provide a high level of treatment of effluent.

The EHO submits that the proposed design is legitimate. He submits that the engineering evidence given at the hearing clearly supports the legitimacy of the proposed system and contradicts the Appellant’s assertion. Further, the EHO submits that the permit application process was completed in accordance with the legislation and that the final design meets the standards set out in the Regulation.

The Panel finds that the Appellant did not provide any evidence or authority to substantiate the assertion that the proposed system’s designs are of questionable legitimacy. The Panel heard the testimony of the design engineers and it has reviewed the documentary evidence. The Panel finds this evidence contradicts the Appellant’s claim and clearly demonstrates the legitimacy of the designs.

c. Lack of feasibility of designs (unlikely to be able to build as required, cannot properly be maintained/no maintenance outlined).

The Appellant submits that the proposed system is not feasible to construct or maintain. The Appellant submits that the proposed system will be very expensive to maintain, and it is likely that the septic tank will have to be serviced by barge. The Appellant submits that this will cost about $3,000 per pump and haul. No evidence was presented to support this assertion.

The Appellant also submits that the construction of the proposed system will violate condition 4 of the permit. However, she did not provide evidence to support this assertion, or to support the lack of feasibility of the construction in general.

The EHO submits that he carefully reviewed the proposed design and attended the Property on numerous occasions to assess the suitability of site conditions for the system prior to his approval of the permit. He argues that the design’s feasibility was demonstrated by the expert engineering evidence given at the hearing.

The Permit Holders point out that there is no provision in the Regulation requiring a condition addressing maintenance of that system.


The Panel notes that during the Appellant’s cross examination of George Giles, an environmental engineer, who was qualified by the Panel as an expert witness in the area of on-site sewage disposal system designs, the Appellant asked Mr. Giles about the feasibility of pumping out the septic tank. Mr. Giles testified that there would be no difficulty in pumping the tank either by truck or with booster pumps, and that a barge would not be the only option for pumping out the tank. The Panel also notes that the EHO stated there would not be a problem with maintaining the septic tank.

The Panel also notes that in Mr. Giles’ summary opinion report, dated August 12, 2002, he states that maintenance of the system will be with an effluent pump, similar to any septic tank system, and that the sand filter will require some replacement of sand in about 20 years, which is similar to the life expectancy of a conventional septic tank absorption field.

The Panel finds that the Appellant’s allegation that the design cannot feasibly be maintained is not supported by the evidence. To the contrary, the expert testimony of Mr. Giles is that it can be maintained.

The Panel further finds that the Appellant provided no evidence to support her argument that construction of the proposed system is not feasible.

d. No recognition, assessment, or mitigation for detrimental/deleterious environmental impacts to neighbouring properties or adjacent public lands.

The Appellant submits that the central concern in this appeal is how the proposed system will impact her property, Lot 7. The majority of her assertions relate to the impact that the proposed development will have on trees and water flow on Lot 7. Prior to and during the hearing she expressed concerns in relation to flooding of her home and property. She is particularly concerned that changes in the grade of the Property will result in the breakout of effluent which will be redirected to flow within her well’s setback zone; that surface and ground water will be diverted from the Property to Lot 7 causing flooding of her land and garage area; and that the clay dam will result in water becoming trapped on her property and will flood her house and land.

The EHO submits that virtually any land clearing, particularly the removal of trees, may be perceived by neighbours to have negative environmental impacts. The EHO submits that the conditions of the permit, specifically condition 4, illustrate that the EHO has attempted to minimize the impact of the proposed system’s construction on the Property. However, in general, the EHO submits that environmental impacts are not relevant to the decision to issue a permit unless the environmental issues involve the risk of effluent creating a public health or environmental hazard - his jurisdiction extends only to potential sewage-related impacts on the Appellant’s property. He maintains that the system’s design has minimized this type of environmental risk.

The Permit Holders support the EHO and also argue that this issue is beyond the jurisdiction of the Board.


The Panel finds that the testimony of the engineers, particularly Mr. Giles and Mr. Potter, illustrates that the impact of the proposed system on the Appellant’s property, specifically regarding water flow and diversion, was taken into consideration. The approved design incorporates safeguards with regards to the potential impact of the system on Lot 7. For example, the construction of a small ditch along the northern edge of the Property was specifically included to ensure that no water flows onto the Appellant’s property as a direct result of the Permit Holders’ system. Although it is understandable that the Appellant is concerned with flooding on her property, the best evidence before the Panel is that every effort has been taken to reduce or prevent this from happening. The Panel notes that Mr. Potter testified in cross-examination that the affect of drainage on other lots must be considered when designing a sewage disposal system, and that it was in this case.

The Panel further finds that the Board’s jurisdiction regarding any deleterious impact on the Appellant’s property is confined solely to potential effluent breakout or other harm to public health resulting from the proposed system. The Panel finds that the Appellant did not establish that her property will be impacted in this way.

However, in her submissions provided after the close of the hearing, the Appellant raised a new argument; that is, that the drainage works on the Property will negatively impact the effective functioning of her sewage disposal system and potentially result in a health hazard. In his report, Mr. Dakin states that effluent needs to flow through several tens of metres of absorption area before all residual contaminants, including coliform, will be removed. In his opinion, the construction of the proposed system will result in significant reduction in the treatment of effluent leaving the Appellant’s drainfield on Lot 7, which will lead to the discharge of inadequately renovated water onto the beach and could expose residents on the Property, and possibly on Lot 7, to surface water that does not meet recreational water standards. Mr. Dakin states:

the distance between the southwest corner of the existing drainfield on Lot 7 [the Appellant’s property] and the northeast corner of the proposed interceptor trench is about 16 [metres]…. As this drainfield is located about 68 [metres] upslope from the shoreline, the proposed drain on Lot 6 will effectively reduce the subsurface renovation distance by 52 [metres], resulting in a 76% reduction.

The Appellant acknowledges that the Regulation only requires a 3-metre minimum setback between an interceptor drain and an absorption field. However, Mr. Dakin references section 4.4 of the Ministry of Health’s On-Site Sewage Disposal Policy (the “Policy”), which states:


Chapter 4 - General Site Assessment

4.4 Breakout Point Setback

Required setback As a condition of permit pursuant to Section 3(5), in order to prevent domestic sewage from reaching the surface of the ground, the setback distance from a sewage disposal system and potential downslope breakout points, such as present or future roadcuts, excavations, an exposed impervious layer in a ditch or a curtain drain, under normal conditions should generally not be less than 15.25 metres (50 feet). The following conditions should be considered in determining additional setback distances:

a. soil porosity. b. soil depth c. water table (depth to highest seasonal water table). …

The Appellant submits that the area between her absorption field and the proposed interceptor drain is a potential breakout point and the EHO should exercise discretion to increase the minimum 3-metre setback distance between an absorption field and an interceptor drain. The Appellant argues that the reports of Mr. Dakin and Dr. Watson support a finding that the proposed system should have a setback that is even greater than the 3-metre statutory minimum and the 15.25-metre policy. The Appellant submits that the setback distance in the Regulation is inadequate in this case, and that additional guidelines should be imposed to safeguard public health pursuant to section 3(5) of the Regulation.

The EHO takes issue with the opinions of Dr. Watson and Mr. Dakin on whether the proposed interceptor drain will cause inadequately treated effluent, from the absorption field on Lot 7, to breakout onto the ground surface and eventually reach the foreshore. The EHO argues that the regulatory requirements establish minimum setbacks to ensure that most pathogens will be removed before effluent reaches the surface, but that it does not require systems to remove “all residual contaminants” in effluent in order to protect the public health. The EHO submits that if effluent from the Appellant’s system reaches the surface at the point of the interceptor drain, it will have been sufficiently treated to protect public health as long as the Appellant’s system meets the requirements in the Regulation and is functioning properly.

The EHO further submits that the proposed interceptor drain currently meets and exceeds the Regulation’s minimum 3-metre setback to the absorption field on the Appellant’s property. Further, the EHO submits that the proposed interceptor drain actually exceeds the discretionary 15.25-metre setback in section 4.4 of the Policy, which is considered by environmental health officers as an additional safeguard to protect public health.

Finally, the EHO submits that he is not aware of circumstances that would require more than a 15.25-metre setback to a “breakout point” for household systems.


The EHO submits that the Dakin report is not conclusive that a health hazard will result from the location of the proposed interceptor drain in relation to the Appellant’s system. Therefore, the EHO argues that there is “simply not a strong balance of probability of a health hazard occurring which would justify the imposition of the extraordinarily stringent requirements proposed by the [Dakin] report,” compared to the minimum 3-metre setback required in the Regulation.

The Permit Holders submit that the interrelationship between the proposed interceptor drain and the absorption field on Lot 7 is a matter that has already been considered by the EHO, and is dealt with by the required 3-metre setback in Schedule 2, section 18(c) of the Regulation. The Permit Holders note that the location of the proposed interceptor drain exceeds the required statutory distance of 3-metres to the Appellant’s absorption field.

The Panel is not satisfied that the evidence contained in the Dakin report supports a finding that the location of the proposed interceptor drain will jeopardize public health. The Panel has heard the evidence of Mr. Giles and Mr. Potter, which detailed the intended function of the interceptor drain to redirect surface and ground water from the Appellant’s property away from the absorption field of the proposed system. The Dakin report concludes that the current design locates the Permit Holders’ interceptor drain approximately 16 metres from the Appellant’s absorption field. This setback exceeds the minimum 3-metre setback required by section 18(c) of Schedule 2 in the Regulation by a significant margin and exceeds the 15.25-metre policy setback to a potential breakout point.

On a balance of probabilities, the Panel finds that any treated effluent from the Appellant’s absorption field that might reach the surface at the point of the proposed interceptor drain, will be sufficiently free of pathogens to prevent a health hazard. The Panel agrees with the EHO that, if the Appellant’s system is designed and functioning according to the requirements of her permit, the distance between the proposed interceptor drain and the Appellant’s absorption field is more than adequate.

e. Designs do not meet minimum mandatory setback requirements to the ocean and her well.

The Appellant is concerned that the proposed system fails to meet two important setback requirements:

• The 30-metre setback to her well according to section 18(d) of Schedule 2; and

• The 30-metre setback to a “high water mark” pursuant to section 18(e) of Schedule 2.

The Appellant submits that the setback of the proposed system to her well could not be determined from the posted notice of permit design, but she is concerned that the minimum setback to her well will not be met. She also maintains that the proposed absorption field is not adequately setback from the high water mark of the ocean.


The EHO submits that all mandatory setbacks have been met in the approved design. The EHO submits that the Regulation does not require a setback from the ocean. However, the EHO notes that there is a discretionary policy requiring a 30-metre setback from the ocean. This policy comes from a 1993 Resolution of the now-dissolved Central Vancouver Island Health Board. The EHO submits that the proposed system is set back from the ocean further than this discretionary 30 metres, at the insistence of Focus Intec. The EHO testified that even if fluid treated by the proposed system were to reach the ocean from the proposed absorption field, given the superior secondary treatment provided by the system, it would be safely treated and filtered.

The Permit Holders submit that the proposed system is sufficiently set back from the well on Lot 7 and the well on the Property, in accordance with the Regulation. The Permit Holders submit that no other mandatory setback in the Regulation applies to the proposed system. Mr. Giles stated that the proposed system meets the mandatory setback from the wells and that no “high water mark” from which the setback is required exists on the Property. However, even if a 30-metre statutory setback to the ocean is required, the Permit Holders submit that it is met in this case.

The Panel finds that the proposed system is set back from all wells in accordance with subsection 18(d), Schedule 2 of the Regulation.

With regards to the setback from the ocean, the Panel agrees with the EHO and the Permit Holders that no mandatory setback exists. Subsection 18(e) of Schedule 2 of the Regulation states that

An absorption field shall be located not less than

…

(e) 30 m [100 ft.] from the high water mark,

…

The phrase “high water mark” that is used in section 18(e), is defined in section 1 of the Regulation as:

“high water mark” means a point on the shoreline which corresponds

(a) for a controlled lake, to the highest water level within the normal operating range for that lake, and

(b) for any other body of nontidal water, to the average highest water level calculated from measurements taken over a sufficient number of years to enable a fair and reasonable estimate; [emphasis added]

This provision does not apply to the ocean, as tidal water is not included in the definition of “high water mark.” Despite having no statutory requirement, it is clear from the evidence of the engineers that efforts were voluntarily taken to adequately


set back the system from Stuart Channel. The Board is satisfied that the system will protect the ocean and the marine foreshore environment.

f. Designs do not meet other bylaws and requirements.

The Appellant argued that the proposed interceptor drain does not conform to Islands Trust bylaws. However, issues of compliance with Islands Trust bylaws are beyond the Board’s jurisdiction. Accordingly, the Board will not consider that submission further.

The Appellant also submits that the lateral absorption beds are not spaced according to the Regulation, and that the use of step-down lateral beds is contrary to the Regulation. In support of this claim, she referred to comments made in an email to the EHO from Murray Sexton, an engineer with the Vancouver Island Health Authority.

The EHO submits that the lateral beds are spaced 6 feet apart according to section 20 of Schedule 2, but that the step-down design is innovative and not specifically contemplated by the Regulation. However, the EHO determined that this design did not pose a concern for health or the environment.

The Panel has considered the Sexton email and finds that the spacing of the lateral beds complies with section 20 of Schedule 2, and that the lateral beds do not pose a health risk. The email from Mr. Sexton does not state that the proposed design contravenes the Regulation, it simply recommends that step-down lateral beds, as an innovative design, be spaced 6 feet apart to ensure compliance with the Regulation (which only contemplates lateral beds at the same elevation).

g. Experimental type designs have not been proven to work on site.

The Appellant submits that the intermittent sand filter is experimental, and that it cannot be determined whether the proposed system actually conforms to the Onsite Systems Inc. design requirements as referenced in the permit. However, she provided no evidence to support these assertions.

The EHO gave evidence illustrating that the intermittent sand filter is not experimental and that it is a recognized technology approved by the Ministry of Health. In particular, the EHO provided the Panel with the “Intermittent Sand Filter Protocol”, which is used by the health authorities to provide a standard for this type of alternate sewage disposal system. This Protocol was incorporated as a condition of the permit.

The Permit Holders also submit that the system’s design is not “experimental”. David Conway, George Giles, and Robert Potter all testified that, in their opinion, the design and operation of the proposed system is suitable for the site conditions on the Property. Mr. Giles was qualified as an expert witness in the area of on-site sewage disposal system design and Mr. Potter was qualified as an expert witness in the areas of ground water hydrogeology and geotechnical investigations. Together, they have many years of experience in the design and engineering of sewage disposal systems and in ground water flow.


The Panel finds that the Appellant’s concerns under this heading are primarily based on her belief that there is not enough historical information or evidence to establish that this system will be effective on the Property. However, George Giles and Robert Potter were qualified as experts and the Panel found them to be credible and knowledgeable witnesses. The panel accepts their evidence regarding the design and operation of the proposed system. It is apparent that there was a great deal of thought and work that went into designing a system that would work on this particular Property. The revisions required by the EHO are further evidence of the care that went into the system design. The Appellant presented no evidence that would reduce the weight or put into question the credibility of the evidence presented by the EHO and the Permit Holders’ engineers in this regard.

h. Water diversion designs do not meet flood protection requirements.

The Appellant raised a number of concerns about the way in which the proposed system addresses water flow on the Property. Her concerns fall into 4 categories:

i) Interceptor drain;

ii) Ephemeral spring;

iii) Filling in of the skidder trail; and

iv) Stream in southwest corner of Property.

i) Interceptor drain

The Appellant submits that the interceptor drain was designed based on inaccurate predictions for surface and ground water flow on the Property. She is concerned with the potential for her property to be flooded.

The Permit Holders provided evidence that the interceptor drain will not divert water from the Property onto the Appellant’s property and will not create a flood risk. Mr. Giles testified that the interceptor drain will capture any surface or ground water upslope of the absorption field. He testified that the natural slope of the Property in the proposed absorption field area is toward the ocean and, therefore, surface water will naturally drain to the ocean and not onto the Appellant’s property. Also, a small ditch will be built, extending down the northern edge of the Property, to ensure that surface or ground water will flow to the ocean and not onto the Appellant’s property. This ditch will be entirely located on the Property.

Mr. Potter gave evidence on behalf of the Permit Holders. As noted above, he was qualified as an expert in ground water hydrogeology and geotechnical investigations. Mr. Potter compiled a report on the flow of ground water in the proposed absorption field. He calculated the amount of water that the proposed system would have to withstand based on visual observations of the Property’s area, slope, soil, and subsurface rock, as well as the flow in the case of a heavy rainstorm. Mr. Potter stated that he was confident that the proposed system would function properly.


The EHO submits that the issue of ground or surface water flow is beyond his jurisdiction unless the ground or surface water on a site will impact the proper functioning of a sewage disposal system. The EHO submits that he has carefully reviewed the design plans and is confident that safeguards, including the interceptor drain, the small ditch on the northern property line, and the clay dam in the skidder trail will ensure the safe functioning of the Permit Holder’s system.

The Panel finds that the testimony of the expert witnesses contradicts the Appellant’s claim that the proposed water diversion by the interceptor drain will create a flood risk. The Panel also finds that the interceptor drain will not hinder the natural water flow in a way that could adversely affect the proper functioning of the proposed system and cause a health hazard. The engineers explained how the proposed system, including the drain, will be built and how it will operate. The Panel is confident that the design of the interceptor drain was based on appropriate assessments and calculations of water flow on the Property and finds that the proposed system was carefully designed and takes into account natural water flow on the Property.

ii) Ephemeral spring

The Appellant further submits that the design does not account for a winter ephemeral spring at the top of the Property. She bases this assertion on a statement made by Rosa Telegus in her report dated March 1, 2001, which contained the first design for the proposed system. Ms. Telegus is a professional engineer who was employed at that time by Focus Intec. In her report, Ms. Telegus refers to a spring at the east-end of the lot as one of the reasons that this end of the Property is not conducive to sewage disposal. She states:

The second investigation was conducted on January 31, 2001, with an excavator. The excavator was brought in along a line approximating the future driveway location. At the end of the day, it proved difficult getting the excavator off the lot due to water conditions at the south-east corner of the lot. In particular, a spring was noted at this end of the lot, suggesting water conditions at the east end of the lot would not be conducive to sewage disposal.

The location of the well on the east end of the lot was a major factor in deciding to site sewage disposal in the centre of the lot, not only from a cost perspective, but also from a health viewpoint. Location of the well upstream of sewage disposal is appropriate.

The Appellant obtained a summons requiring Rosa Telegus to testify. During the hearing, the Appellant asked Ms. Telegus about a spring on the Property. Ms. Telegus stressed during her testimony that her memory of this project was limited, and that she did not clearly remember a spring. However, Ms. Telegus stated that because she authored and signed the report, the report must reflect her observations about the Property at the time she participated in the project.


In addition, the Appellant noted that a culvert had been constructed under the driveway on the Property. The implication being that the culvert was there to allow water from the spring to follow its natural course down through the Property.

Mr. Potter testified that there was no evidence of a spring on the Property.

Mr. Ralston gave evidence that he was with Ms. Telegus when she conducted her investigation of the Property. Mr. Ralston’s evidence is that the area to the east end of the Property is saturated at certain times of the year. He explained that this is because water gets trapped behind a rock ridge on the Property. He advised that there is no spring at the east end of the Property. He further advised that it was he that supervised the driveway construction on the Property. He explained that there is no culvert under the driveway for the purpose of directing water down the Property. He did say that there is a pipe under the driveway that will be used to run a water pipe from the well to the house, once it is constructed.

The Panel finds that the reference to a spring in Rosa Telegus’ March 2001 report does not provide any conclusive evidence of a problem with the location of the proposed system or its ability to function as designed. David Conway, summonsed by the Appellant, testified that the proposed design adequately covers all issues of water flow on the Property. He also acknowledged that there is natural seepage of water on the Property, but stated that there is no “spring” or “stream”. In addition, Mr. Giles testified that there is no recurring natural water flow on the Property, and Mr. Potter and Mr. Ralston, stated there was no evidence of a spring.

In any event, the Panel notes that the system is proposed for the middle of the Property, not the east-end where Ms. Telegus observed a spring. Further, no one is disputing that there are surface and ground water issues on this Property. However, in recognition of these issues, extensive plans have been developed for swales, dams and infilling of drainage pathways. Even assuming there is a spring at the east-end of the Property (which is contrary to the findings of the Panel), the Panel finds that the proposed system would not be impacted by, or have an impact on, such a spring.

iii) Filling in of the skidder trail

The Appellant also asserts that plans to infill the skidder trail do not accommodate ground water seepage or seasonal run-off. She describes the skidder trail as having the “characteristics of the path of a torrent,” and claims the dam will trigger flooding on her Lot 7. She argues that the dam will cause a water flow backlog and the eventual flooding of her property because the skidder trail naturally drains from her property down through the Permit Holders’ Property.

The Permit Holders provided evidence that the proposed subsurface clay dam, to be installed at the edge of the skidder trail, will serve to prevent the risk of effluent breakout from the sewage disposal system onto the skidder trail. Further, the skidder trail will be rehabilitated and filled at the end of the construction project with soil consistent in permeability with the original soil. Robert Potter writes in his opinion report that the filling of the skidder trail is intended to encourage natural subsurface seepage of treated water in the soil downslope of the absorption field


because otherwise the water would tend to flow down the path of the skidder trail. However, in his testimony, Mr. Potter stated that the effluent would not be a health risk at this point.

Although the Appellant describes the water flow on the skidder trail as having the characteristics of a “torrent,” this appears to be an overstatement. By her own testimony, she filled in a portion of the skidder trail on her property when she built her driveway. If the flow was torrential, as she would have one believe, it is unlikely that she would have been able to fill it in without consequences to her own property.

Further, the Permit Holders provided evidence to contradict the claim that the clay dam and infilling of the skidder trail will cause flooding on Lot 7. Mr. Giles’ summary report describes the dam and infilling as follows:

To provide for the discharge from the disposal system to seep down slope through the ground…[the skidder trail] is to be filled with soil with permeability as close as possible to the existing soil. To ensure that the seepage does not follow the old depression, the design provides for a series of clay dams to be constructed…Any surface water directed onto the [Property] from the [Appellant’s] property by this depression will be intercepted and conveyed by a ditch to the ocean. The slope of the land on the [Appellant’s] property in the area adjacent to the proposed ditch is toward the ocean and the [Property], such that there will be no flooding of the [Appellant’s] property.

The Panel is confident that the infilling and clay dam in the skidder trail will not create a flood risk for Lot 7.

iv) Stream on southwest corner of Property

The Appellant also argues that there is a “stream” on the Property that is partially underground, but that it “erupts” in the proposed absorption field and then leaves the Property via a clearly visible “ravine” in the southwest corner of the Property. David Polster, an expert in re-vegetation and the prevention of soil erosion, who was retained by the Appellant for this appeal but not qualified as an expert by the Panel, testified that there is a stream on the Property.

The EHO takes issue with the Appellant’s submission that the drainage feature in the southwest corner of the Property is a “stream,” as defined in the Water Act. He testified that he saw no evidence of any stream when he visited the Property. In addition, the EHO submits that the Appellant already contacted the Ministry of Water, Land, and Air Protection and was advised that the drainage feature on the Property is not a “stream” according to the Water Act.

The EHO, George Giles, and Robert Potter all testified that there is no stream running on the Property, and that there is no evidence of recurring water flow in the area described by the Appellant. Mr. Ralston, who resides on Thetis Island and has been on the Property numerous times, testified that the area in the southwest corner is not a stream. He testified that the drainage feature is the extension of


one of two old cut roads. He testified that there is the skidder trail and a second trail that begins in or around the hydro pole at the boundary between the Property and Lot 7. In Mr. Ralston’s opinion, the drainage feature joins up with the second trail and goes to the ocean. Mr. Ralston believes both trails have been on the Property in excess of 60 years. In support of his view that the drainage feature is not a natural watercourse, he notes that there is no riparian vegetation present in the trail bed – no reeds, salmon berries, or skunk cabbage, and he also testified that one cannot identify a high water mark in the trail bed.

Further, Mr. Potter testified that the drainage feature was created by machines, and he believes that it was an extension of the old log trail or skidder trail and was used to take logs down to the beach. Mr. Giles referred to the drainage feature as a “man made ditch,” and stated that there was no evidence of a riparian environment in the ditch.

On the last day of the hearing, the Appellant asked for an adjournment to allow her to call 12 additional witnesses to “attest to” the presence of a stream on the Property. The Panel denied this application on the grounds that there had already been a significant amount of evidence submitted for the Panel to make a finding on whether a stream exists on the Property.

The Panel finds that the drainage feature is not a stream. The Panel heard from numerous witnesses who have been on the Property during various seasons of the year. Specifically, the EHO, George Giles, Robert Potter, and Ian Ralston. These witnesses all testified that the drainage feature is not a stream. Rather, it was likely created as a result of the logging practices in and around the area some 60 years or more ago. The location and configuration of the drainage feature suggests that logs were taken across the Property, along the skidder trail and/or another trail that started near the hydro pole, and then were dragged down to the beach in the southwest corner of the Property, thereby creating this “channel” of sorts. The lack of vegetation generally associated with water features further supports this finding.

Accordingly, despite the assertions of the Appellant and the testimony of Mr. Polster, the Panel finds that the evidence given by the EHO and the Permit Holders overwhelmingly contradicts the claim that the drainage feature is a stream.

The Appellant takes issue with the Permit Holders’ proposed infilling of the drainage feature as an environmental hazard, and as a contravention of the Water Act. There is no evidence that an environmental hazard will be created by infilling this channel. If the Ministry of Water, Land and Air Protection has any concerns regarding the infilling of this feature, that is a matter between that Ministry and the Permit Holders. It is beyond the jurisdiction of this Panel.

i. Potential contamination of shellfish.

The Appellant also raised concerns with the potential of the system to negatively impact the foreshore and, specifically, the shellfish and oyster bed.

With respect to the potential for effluent from the Permit Holder’s system to reach the ocean, the Panel finds that reasonable safeguards exist in the proposed design


such that the system will provide a high level of effluent treatment and prevent untreated effluent from reaching the ocean. These design safeguards include the intermittent sand filter and the 3 lateral absorption field beds that will further filter the effluent before it reaches natural soil. Mr. Giles testified that there will be a complete removal of pathogens from the effluent within the immediate area of the proposed absorption field.

Further, the Panel has already found that the location of the proposed interceptor drain does not create a breakout risk for untreated effluent from the Appellant’s absorption field. The Panel finds that even if effluent breaks out of either the proposed system or the Appellant’s system at the point of the proposed interceptor drain, it would be sufficiently free of pathogens to prevent a health hazard or contamination of the shellfish population on the foreshore of Stuart Channel.

Summary

The onus is on the Appellant to demonstrate that the proposed system is unable, on a balance of probabilities, to provide a reasonable scale of protection of public health (Christina Lake Development Ltd. v. British Columbia (Ministry of Health, Director) (1996), 19 B.C.L.R. (3d) 47 (C.A.)).

Overall, the Panel concludes that the Appellant’s claims about the inadequacy of the proposed system are not supported by the evidence, and that many of her claims do not fall within the Board’s jurisdiction.

The Appellant provided insufficient evidence prior to the hearing, during the hearing, or in her additional opinion evidence, to meet the onus of demonstrating that the system poses a threat to public health or does not comply with the Regulation. The Panel prefers the evidence of the EHO and the expert evidence of Mr. Giles and Mr. Potter. The Panel found the experts tendered by the Permit Holders to be credible professionals and it is clear that the Permit Holders have sought and obtained the design of a first class system for the Property. The Panel agrees that it is a “belts and braces” system, which has been designed with significant care and concern in relation to protecting health and the environment, as well as the aesthetic nature of the area.

While Dr. Watson and Mr. Dakin appear to have significant experience in their respective areas of expertise, their evidence is of limited value since they have never been on the Property, and they only formed their opinions after reviewing the design plans and observing the Property from the foreshore of Stuart Channel. After a careful consideration of the reports, the Panel finds that the additional evidence does not impact its findings on the merits of this appeal.

On review of all the evidence, the Panel is satisfied that the proposed system, if built as designed, will adequately treat and attenuate any effluent that enters the system and will protect the public health and the environment.


3. Whether costs should be awarded in this case.

In her Notice of Appeal, the Appellant requested costs. However, she did not make any submissions on this application at the hearing or in her later submissions. Since there is no basis substantiated for making an award for costs to the Appellant, the Panel denies her application.

The Permit Holders also applied for an award of costs. In their application, they directed the Panel to consider page 44 of the Board’s Procedure Manual where it lists some of the circumstances in which the Board will award costs. Specifically, they pointed to the following circumstances:

(a) where, having regard to all of the circumstances, an appeal is brought for improper reasons or is frivolous or vexatious in nature;

…

(d) where a party unreasonably delays the proceeding;

…

(f) where a party has continued to deal with issues, which the Board has advised are irrelevant.

The Permit Holders submit that the conduct of the Appellant throughout this appeal indicates that her appeal is frivolous or vexatious in nature. The Permit Holders identified various occasions where the Appellant’s correspondence included a threat of civil action and were felt to be harassing.

The Permit Holders also submit that the Appellant has not been fully honest and candid during the appeal. In support, they point to the events surrounding the appearance of Mr. Polster as a witness. On the first day of the hearing, the Appellant testified that arrangements had been made for Mr. Polster to appear the next day. However, on the second day of the hearing, the Appellant applied to have Mr. Polster testify by phone from Dawson Creek, and on cross-examination he stated that he never intended to appear in person at the hearing.

The Permit Holders further argue that this appeal has been brought for improper reasons. They submit that the Appellant’s case has never been about effluent or public health: it has been about the protection of the Appellant’s own property interests. They point to threats that the Appellant has made about a potential civil action for nuisance should the development on the Property affect Lot 7, and her requests for reimbursement from the Permit Holders prior to this hearing. As well, the Permit Holders argue that during her closing argument at the end of the hearing, the Appellant did not even request that the permit be rescinded, she merely requested the opportunity to be consulted and participate in the issuance of future permits for the Property.

The Permit Holders note the numerous preliminary applications made by the Appellant leading up to the hearing, including an application to have them removed as parties, and the various requests for summonses of witnesses who ultimately


provided no useful evidence for her case. They also argue that she made unwarranted applications during the oral hearing. Finally, the Appellant continued to focus on irrelevant issues during the appeal despite instructions from the Board before the hearing, and reminders from the Panel during the hearing. These include her arguments on windthrow and drainage of non-effluent. The Permit Holders submit that these actions resulted in an unreasonable delay of the process.

The Permit Holders submit that participants in this process need to be held to a standard of fairness and candour and, if they do not, they should be sanctioned.

In response to the application, the Appellant submits that she came to this appeal in good faith with genuine concerns. She further submits that any delays or errors during the proceedings are the result of her inexperience in dealing with the Board. She submits that she believed Mr. Polster was in Victoria and that he would be available for the hearing. Further, she notes that the initial rescheduling of the hearing was at the request of the Permit Holders.

The Panel’s Findings on Costs

There is extensive case law on the courts’ use of cost awards to discourage conduct by parties that can be characterized as an abuse of process. In British Columbia, the general principle behind special cost awards and the application of Rule 57(3) of the British Columbia Supreme Court Rules (the special costs provision) are summarized in Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740. The Court wrote, “the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”…It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving reproof or rebuke.” In Heppner v. Schmand [1998] B.C.J. No. 2843 (Q.L.) the Court described these milder forms of misconduct as behaviour from which the court seeks to “dissociate itself.” These special costs principles are relevant to the Board in its consideration of a costs award to discourage the abuse of its own process.

The Panel has reviewed the extensive body of correspondence between the Appellant and the other parties. In particular, the Panel notes that as recently as September 6, 2002, and also August 30, 2002, the Appellant clearly stated in separate letters to the EHO and the Board that this appeal was about her trying “to protect [her] property”. The Panel finds that public health and the environment appear to have been secondary concerns for the Appellant. This is highlighted by her knowingly focusing the appeal on issues that were beyond the Board’s jurisdiction, including windthrow and drainage of non-effluent.

Throughout the appeal, the Appellant’s passion for her case has been evident. Unfortunately, it was sometimes expressed in ways that may be interpreted as threatening and disrespectful. Therefore, the basis for the Permit Holders’ claims that the appeal is vexatious in nature is apparent.

However, there are a variety of people that file appeals with the Board. Although the Appellant’s motivation may have been to protect her property, many of the issues she ultimately raised were related to health protection issues. Many


appellants are concerned about the impact of an adjacent system and/or development on their property and are not clear on exactly where the line is drawn for the purposes of the Board’s jurisdiction.

In this case, the Appellant focused on some matters that were clearly beyond the jurisdiction of the Panel and, at times, pursued those matters despite being advised otherwise. Although the Panel accepts many of the Permit Holders’ arguments and agrees with their concerns, the Panel finds that the Appellant’s conduct prior to and during the hearing, while sometimes extreme, does not warrant an award of costs. The Panel also notes that this appeal, although costly to all participants, essentially provided the Appellant with the consultation on the proposed sewage disposal system that she desired.

However, the Panel finds that the Appellant’s conduct after the oral hearing concluded was abusive of the process and further delayed the hearing, resulting in additional expenses being incurred by the other parties and the Board. The Appellant’s additional evidence could have and should have been presented at the hearing. The Appellant’s reasons for not doing so are not convincing. While the Panel accepted some of the additional evidence, at the end of the day, it did not impact the Panel’s findings on the merits of this appeal. This application simply resulted in greater costs for all those involved in the appeal and is something that cannot be condoned. The application to introduce additional evidence in this case reflects conduct of a party that the Board wishes to “dissociate” from.

The Panel finds that the Permit Holders should receive their costs associated with responding to the Appellant’s application to introduce additional evidence and reopen the oral hearing.

“Costs”, as used in section 11(14.2), is not defined in the Act. Subsection (a) of 11(14.2) simply provides that the Board may make an order requiring “a party to pay all or part of the costs of another party” in connection with the appeal. In Roberts v. The College of Dental Surgeons of British Columbia (1999), 63 B.C.L.R. (3d) 116 (C.A.), the Court of Appeal decided that costs under the Dentists Act are costs as articulated in the Supreme Court Rules. The Court noted that the issue of costs is primarily a matter of statutory interpretation and cited with approval the finding of Mr. Justice Hinkson in Ridley Terminals v. Minette Bay Ship Docking Ltd. (1990), 45 B.C.L.R. (2d) 367 (B.C.C.A.) at 372, where he stated in the context of the Commercial Arbitration Act, that:

…costs in British Columbia have a traditional meaning unless qualified by statute or agreement of the parties. The traditional meaning is governed by the provisions of R. 57 of the Supreme Court Rules. [emphasis added]

(see also Aydin & Co. v. Schaber (2000), 49 C.P.C. (4th) 77 (B.C.S.C.) and Shpak v. Institute of Chartered Accountants of British Columbia [2002] B.C.J. No. 1008 (Q.L.))

The Panel finds that this the traditional meaning of costs applies. Accordingly, the Permit Holder is entitled to party and party costs from the Appellant based on Scale 3 of Appendix B to the Supreme Court Rules.


The Permit Holders’ application for costs is allowed in part.

DECISION

In making this decision, the Panel of the Environmental Appeal Board has carefully considered all the evidence before it, whether or not specifically reiterated here.

The issuance of the permit is confirmed and the appeal is dismissed.

The Permit Holders have asked that the permit be made effective the date of the Board’s decision, or that it be extended to accommodate for the construction of the system during summer months. The Panel orders that permit be amended to show that is effective for one year from the date of this decision.

The Permit Holders’ application for costs is allowed, in part.

Alan Andison, Chair Environmental Appeal Board January 31, 2003

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