The Minister of Environment appropriately focused on the state of the actual construction when deciding whether a ski resort project was “substantially started”

In 2014, the Appellant, the Minister of Environment, decided a ski resort project was not substantially started. A chambers judge held this decision was unreasonable, and the Minister appealed to the BC Court of Appeal. The Court of Appeal allowed the appeal.

Administrative law – Decisions reviewed – Minister of Environment – Assessment – Legislative compliance – Judicial review – Appeals – Standard of review – Unreasonableness – Remedies – Mandamus

Glacier Resorts Ltd. v. British Columbia (Minister of Environment), [2019] B.C.J. No. 1459, 2019 BCCA 289, British Columbia Court of Appeal, August 6, 2019, H. Groberman, G.J. Fitch and J.J.L. Hunter JJ.A.

The Respondent, Glacier Resorts Ltd., is the supporter of the Jumbo Glacier Resort Project, a year-round ski resort intended to be developed in the East Kootenay Region of B.C. In 2004, as required by the Environmental Assessment Act (the “Act”), Glacier obtained an environmental certificate for the project (the “Certificate”). The certificate originally required the project to be substantially started within five years, but the deadline was extended for a further five years in 2009. The Act does not allow for any further extensions.

The Appellant, British Columbia (Minister of Environment), reviewed the matter and decided in June 2015 that the project had not been substantially started by the October 2014 deadline. Therefore, the Minister determined that the Certificate had expired. Glacier brought an application for judicial review, seeking to quash the Minister’s decision and asking for an order in the nature of mandamus compelling the Minister to reach the opposite conclusion. The chambers judge found the Minister failed to take into account a number of mitigating factors and this failure was unreasonable. The chambers judge quashed the Minister’s decision and remitted the matter to the Minister for reconsideration.

The Minister appealed the decision. Glacier cross-appealed, contending that the Court of Appeal should declare the project was substantially started before the expiry of the certificate.

The Court of Appeal (the majority) first reviewed the specific conditions that were attached to the Certificate originally issued for this project, and the various delays that impacted on the progress made for this project. The Minister was required to determine whether the project was substantially complete and this phrase had no particular definition in law; it was a question that had to be determined in the context of the case. The Minister focused on the state of the actual construction in determining whether the project had been substantially started, although she did not ignore planning and regulatory approvals. The majority held this approach was not unreasonable.

The majority noted that the chambers judge seemed to have come to the conclusion that determining whether a project has been substantially started is really an inquiry into whether a proponent has made reasonable efforts to proceed with a project. The majority reasoned that proponents may fail to commence a project through no fault of their own and, in such circumstances, the statutory test would not be met.

The majority held that the Minister’s decision (that the project was not substantially started) was a reasonable one. The majority set aside the judge’s order and reinstated the Minister’s determination.

The majority then addressed some alternate arguments made by Glacier including arguments relating to estoppel, legitimate expectations, and mandamus. The majority rejected these arguments.

The dissent found the Minister appropriately focused primarily on the physical work on the ground in determining whether the project was substantially started. However, the dissent found the Minister acted unreasonably in refusing to consider all relevant circumstances in determining whether the start of the project was sufficiently substantial. The Environmental Assessment Office’s User Guide confirmed the importance of considering the contextual circumstances of the project.

The dissent agreed with the majority’s analysis of the arguments of estoppel, legitimate expectations, and mandamus.

The dissent would have quashed the Minister’s decision and remit the question to the Minister for reconsideration.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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