Challenge to Environmental Protection and Enhancement Act Penalties

2026 ABEAB 3                                                                                        Appeal No. 24-016-017-ID2 [NAME] BOARD Decision Date of Decision – January 28, 2026 IN THE MATTER OF s ections 91, 92, and 95 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12; -and- IN THE MATTER OF appeals filed with respect to the decision of the Director, Environmental Enforcement Branch, Investigations Regulatory Assurance Division, [NAME] to issue Administrative Penalty and Economic Benefit Assessment No. AP-EPEA-38819 to [COMPANY]. and [NAME]. Cite as:            [COMPANY]. et al. v Director , Environmental Enforcement Branch, Investigations Regulatory Assurance Division, [NAME], 2026 ABEAB 3. BEFORE: [NAME], Board and Panel Chair. PARTIES: Appellant: [redacted] [COMPANY]. and [NAME], represented by [NAME] and Mr. [NAME], [COMPANY]. Mr. [NAME], Director Environmental Enforcement Branch, Investigations Regulatory Assurance Division, [NAME] , represented by [NAME]. [NAME], Environmental Law Section, [NAME]. EXECUTIVE SUMMARY The Director, Environmental Enforcement Branch, Investigations Regulatory Assurance Division, [NAME] (the Director), issued an Administrative Penalty and Economic Benefit Assessment (the Penalty and Assessment) under the Environmental Protection and Enhancement Act (EPEA) to [COMPANY]. and [NAME] ([NAME]) with respect to unauthorized activities undertaken by [NAME] at a [COMPANY] pit located in Edmonton (the Pit), for [NAME] failing to comply with the Code of Practice and the Activities Plan for the Pit, and [NAME] failing to provide information and documentation to the Director in accordance with EPEA. The Penalty and Assessment directs [NAME] to pay an administrative penalty of $78,500.00 (the Administrative Penalty) and a one-time economic benefit assessment of $9,846.135.00 (the Economic Benefit Assessment). The total amount of the Penalty and Assessment is $9,924,635.00. The Environmental Appeals Board (the Board) received Notices of Appeal from [NAME]. In the Notices of Appeal, [NAME] alleged the Penalty and Assessment were improperly issued, lacked a proper factual and legal foundation, and the Director’s actions were punitive in nature and harmful to the environment since it frustrated [NAME]’ efforts to reclaim the Pit. [NAME] further alleged the amount of the Penalty and Assessment was not reasonable. [NAME] argued the Penalty and Assessment should be dismissed because [NAME] and its investigators breached [NAME]’ rights under the Canadian Charter of Rights and Freedoms (the Charter) which [NAME] asserted could raise issues with respect to the admissibility of evidence and the proper content of the Director’s Record. [NAME] advised the Board they intended to argue the Penalty and Assessment was issued outside the legislative period to do so (the Limitations Issue), and that [NAME] was not liable under EPEA for the Penalty and Assessment (the Personal Liability Issue). [NAME] proposed the issues for the hearing should be:

1.                   Was the Administrative Penalty properly issued, for each of the 20 Counts in the Notice of Administrative Penalty, against each of the two [NAME]? 2.                   Is the amount assessed in the Administrative Penalty reasonable as against each of the two [NAME]? The Director argued [NAME]’ Notices of Appeal were general in nature and did not provide sufficient particulars to enable the Board to define the nature and scope of the issues for the hearing. The Director requested the Board require [NAME] provide further particulars with respect to [NAME]’ Notices of Appeal so that the Board could narrow the issues to reflect the particulars of the errors in law and material fact alleged by [NAME] as well as how and why the Penalty and Assessment was punitive, harmful to the environment and unreasonable. The Director also argued [NAME] had not identified the Limitations Issue, the Personal Liability Issue and what Charter rights or values were infringed as grounds of appeal in their Notices of Appeal and therefore, these issues were not properly before the Board. Having reviewed the submissions of the parties and the record, including the Director’s Record, the Board denied the Director’s request to require [NAME] to provide further particulars with respect to [NAME]’ Notices of Appeal. The Board set the issues for the hearing as follows:

1.                   Was the Administrative Penalty properly issued for each of the 20 Counts in the Notice of Administrative Penalty, as against each of the two [NAME]? 2.                   Is the amount of the Administrative Penalty assessed for each of the 20 counts in the Notice of Administrative Penalty appropriate, as against each of the two [NAME]? 3.                   Was the Economic Benefit Assessment properly issued and is the amount assessed for the Economic Benefit Assessment appropriate, against each of the two [NAME]? The Board also found the Limitations Issue and the Personal Liability Issue were properly before the Board. [NAME] had alleged in their Notices of Appeal that the Penalty and Assessment was improperly issued and lacked a proper legal and factual foundation, which in the Board’s view was broad enough to include the alleged Limitations Issue and Personal Liability Issue as raised by [NAME]. With respect to the ability of the Board to consider whether it has a limited scope to consider the Charter at the hearing, the Board confirmed that at the hearing it would hear the argument and evidence regarding this issue and would determine its relevance and weight to the issues before the Board. TABLE OF CONTENTS 1.      INTRODUCTION .. 1 2.

BACKGROUND .. 3 3.      ISSUE .. 12 4.      LEGISLATION, REgulation and rules of practice .. 12 5.      submissions . 14 5.1.          [NAME] . 14 5.2.          Director 20 6.      AnAlysis . 26 7.

DECISION .. 32 1.                                          INTRODUCTION [ 1 ]                                        These are the Environmental Appeal Board’s (the Board) reasons for its decision regarding the request of the Director, Regulatory Assurance Division North, [NAME] (the Director) that [COMPANY]. ([NAME]) and [NAME] (collectively, [NAME]) be required by the Board to provide further particulars in respect of their Notices of Appeal of the decision of the Director to issue Administrative Penalty and Economic Benefit Assessment No. AP-EPEA-38819 (the Penalty and Assessment) and that the details provided by [NAME] be included in the issues set for the hearing of the appeal. [ 2 ]                                        The Penalty and Assessment was issued under the Environmental Protection and Enhancement Act , RSA 2000, c E-12 (EPEA) and relates to: •                      alleged unauthorized activities undertaken by [NAME] at a [COMPANY] pit located at NW 20-053-23-W4M near Edmonton, [NAME] (the Pit); •                      the failure of [NAME] to comply with the Environment and Protected Areas’ (EPA) Guide to the Code of Practice for Pits (Code of Practice); and •                      the Activities Plan for the Pit and to provide information and documentation to the Director in accordance with EPEA. The Penalty and Assessment directed [NAME] to pay an administrative penalty of $78,500.00 (the Administrative Penalty) and a one-time economic assessment of $9,846.135.00 (the Economic Benefit Assessment) for a total amount of the Penalty and Assessment of $9,924,635.00. [ 3 ]                                        On June 17, 2024, the Board received [NAME]’ Notices of Appeal of the Penalty and Assessment. [1] In the Notices of Appeal, [NAME] alleged the Penalty and Assessment had been improperly issued, lacked a proper factual and legal foundation, and the Director’s actions were punitive in nature and harmful to the environment since it frustrated [NAME]’ efforts to reclaim the Pit. [NAME] also alleged the amount of the Penalty and Assessment was not reasonable. [NAME] further alleged the Penalty and Assessment should be dismissed because EPA and its investigators breached [NAME]’ rights under the Canadian Charter of Rights and Freedoms (the Charter) which [NAME] argued could raise issues with respect to the admissibility of evidence and the proper content of the Director’s Record. [ 4 ]                                        [NAME] advised the Board they would also argue the Penalty and Assessment was issued outside the applicable limitation period (the Limitations Issue) and [NAME] was not personally liable for the Penalty and Assessment (the Personal Liability Issue). [ 5 ]                                        [NAME] proposed the issues for the hearing should be:

1.                   Was the Administrative Penalty properly issued, for each of the 20 Counts in the Notice of Administrative Penalty, against each of the two [NAME]? 2.                   Is the amount assessed in the Administrative Penalty reasonable as against each of the two [NAME]? [2] [ 6 ]                                        The Director argued [NAME]’ Notices of Appeal were general in nature and did not provide sufficient particulars to enable the Board to define the nature and scope of the issues for the hearing. The Director requested the Board require [NAME] provide further particulars with respect to [NAME]’ Notices of Appeal so that the Board could narrow the issues to reflect the particulars of the errors in law and material fact alleged by [NAME] as well as how and why the Penalty and Assessment was punitive, harmed the environment and was unreasonable. [ 7 ]                                        The Director argued [NAME] had not identified in their Notices of Appeal the alleged Limitations Issue, the Personal Liability Issue and what Charter rights or values were infringed as matters they were appealing. The Director asserted these matters were not properly before the Board and should not be included as issues at the hearing of the appeals. [ 8 ]                                        Having reviewed the submissions of the Director and [NAME] (the Parties) and the record, including the Director’s Record, the Board denied the Director’s request that the Board require [NAME] to provide further particulars with respect to [NAME]’ Notices of Appeal. The Board set the issues for the hearing as follows:

1.                   Was the Administrative Penalty properly issued for each of the 20 Counts in the Notice of Administrative Penalty, as against each of the two [NAME]? 2.                   Is the amount of the Administrative Penalty assessed for each of the 20 counts in the Notice of Administrative Penalty appropriate, as against each of the two [NAME]? 3.                   Was the Economic Benefit Assessment properly issued and is the amount assessed for the Economic Benefit Assessment appropriate, as against each of the two [NAME]? [ 9 ]                                        The Board found the Limitations Issue and the Personal Liability Issue were properly before the Board. The Board found [NAME] had alleged in their Notices of Appeal that the Penalty and Assessment were improperly issued and lacked a proper legal and factual foundation which in the Board’s view was broad enough to include the alleged Limitations Issue and Personal Liability Issue.

Accordingly, the Board found the Parties could make submissions regarding those issues at the hearing. [ 10 ]                                    The Board also noted with respect to the submissions received from the Parties regarding [NAME]’ Charter arguments, it had previously advised the Parties that the Board would consider argument and evidence in respect of the Board’s limited scope to consider the Charter at the hearing of the appeals.

Accordingly, in this decision the Board did not consider the submissions of the Parties regarding the alleged breach of [NAME]’ rights under the Charter and Charter values. The Board noted that it would determine the relevance and weight of the evidence and argument provided by the Parties regarding these issues at the hearing of the appeals. [ 11 ]                                    The Board’s reasons for its decision are provided below.

2.

BACKGROUND [ 12 ]                                    The Board has considered the records before it, including the Director’s Record, and the written submissions of the Parties and has summarized the relevant information for the purposes of this decision. [ 13 ]                                    [NAME] carried on business under EPEA Registration No. 00015950-02-00 (the Registration) which authorized the construction, operation, and reclamation of the Pit near Edmonton, [NAME]. [ 14 ]                                    The Pit is located at NW 1/4 of 20-53-23-W4M and is adjacent to the North Saskatchewan River. The land is owned by [COMPANY]. (Capital Aggregate). [NAME] is sole director of both [NAME]. A scale house and road used by [NAME] in the operation of the Pit are located on the NE 1/4 of 20-53-23-W4M. The land on which the scale house and road are located is owned by [NAME]. [ 15 ]                                    [NAME] has operated the Pit for approximately 70 years. When the Pit commenced operations, the topsoil was stripped off the Pit and sold as there were no regulatory requirements that the topsoil be stockpiled for reclamation purposes. [ 16 ]                                    [NAME] previously operated the Pit under Approval No. SG-34-91 which expired on July 26, 2005. [ 17 ]                                    On June 27, 1991, [NAME], the Chair of the Land Conservation Reclamation Council under the Land Surface Conservation and Reclamation Act , SA 1978, c 64, which was the legislation governing the operation of the Pit at the time, wrote to [NAME] granting the following approval: “As per Schedule 2, Condition 25 of the Approval, you may take this as written authorization to import and stockpile topsoil materials on the location indicated on your plan, for use in reclamation of the site. It is my understanding that this material is separated from materials going to the landfill site.” [ 18 ]                                    In May 2010, [COMPANY]. prepared a document entitled Environmental Protection and Enhancement Act - Code of Practice for Pits, [NAME] (NW/4 20-053-23 W4M) which was the registration application for the continued operation and reclamation of the Pit. On November 20, 2014, EPA issued the Registration, which included the Activities Plan for the Pit (the 2014 Activities Plan). [ 19 ]                                    On October 6, 2019, [NAME] submitted a 5-Year Report and security estimate (the 5-Year Report) as required under the Code of Practice . The 5-Year Report stated: “ The total measured disturbance (lifetime) for the pit is 59.6 Hectares with 34.8 Hectares reclaimed and seeded, in various states of re-vegetation and 24.8 Hectares still active. No reclaimed area has been certified as of the time of this report.” [ 20 ]                                    On January 19, 2021, EPA received a public complaint that contaminated materials were being brought onto the lands at the Pit for the purposes of reclamation. [3] [ 21 ]                                    On April 20, 2022, pursuant to the Code of Practice, an EPA investigator requested documents from an employee of [NAME] pertaining to the location, quantity and depth of materials used for reclamation, as well as the operating record for the Pit (the Information Request). [ 22 ]                                    On May 20, 2022, [NAME] responded to the Information Request stating it was unclear as to who EPA was investigating, as EPA had represented to [NAME] that it was investigating [COMPANY]. (MDX). [NAME] further stated it had relied on EPA’s representation when it agreed to cooperate as a witness and assist EPA by providing several hundreds of pages of documentation. [NAME] also noted that EPA had removed a large volume of documents from [NAME] for the MDX investigation. [NAME] further alleged in its response to the Information Request that, EPA did not comply with its practice of serving notice on a party under investigation, EPA may have exceeded its authority and breached [NAME]’s rights under the Charter, EPA does not have the legal authority to request the documents set out in the Information Request, and if there was a statutory obligation on [NAME] to make disclosure to EPA, it cannot be used in a manner that violates the Charter. [ 23 ]                                    Between June 2022 and November 2023, the Parties exchanged correspondence regarding the authority of the Director under EPEA to demand records and information from [NAME] and the obligation of [NAME] under EPEA to provide reasonable assistance to EPA’s inspectors investigating the use of unauthorized reclamation material at the Pit. [ 24 ]                                    On June 23, August 9, and October 5, 2022, site inspections of the Pit were conducted by EPA environmental protection officers (EPOs). At each inspection the EPOs observed, amongst other things, that the layout of the Pit did not comply with the 2014 Activities Plan, materials received at the Pit were not screened for contamination, and fill material was mixed with waste and debris in certain areas of the Pit. During each inspection and as part of each inspection report, [NAME] were asked to produce certain documents relating to the location, depth, and quantity of reclamation material brought to the Pit (the Documents). [NAME], however, did not produce the Documents. [ 25 ]                                    On August 10, 2022, EPOs attended [NAME]’s main office and registered office both located in Edmonton and found the main office was vacant. They were advised by personnel at the registered office that the Documents were not stored at that location. [ 26 ]                                    On October 14, 2022, the Director issued Environmental Enforcement Order No. EO-EPEA-38679 (the Order) to [NAME] pursuant to sections 210(d) and (e) of EPEA alleging [NAME] had contravened section 83.1 of EPEA by contravening certain sections of the Code of Practice. On October 19, 2022, the Board received a Notice of Appeal of the Order, and on October 28, 2022, the Director brought a preliminary motion regarding the jurisdiction of the Board to hear the appeal. The Board subsequently determined it did not have the jurisdiction to hear the appeal as the Order was issued under sections 210(d) and (e) of EPEA in respect of which there is no right of appeal. The Board issued the reasons for the Board’s decision on April 12, 2024, and closed its file on that appeal (EAB Appeal No. 22-066). [4] [ 27 ]                                    On September 23, 2023, [NAME] wrote to EPA alleging EPA had made an unannounced search and seizure of business records, conducted without a warrant or other lawful authority, and that EPA interviewed workers without legal counsel being present despite being on notice the workers wanted the benefit of legal counsel. [NAME] stated all the documents that EPA was legally entitled to receive had been provided by [NAME] to EPA. [NAME] requested EPA provide the legal authority to request certain other business and financial records, alleging that EPA’s actions were improper and not in keeping with the Charter. [ 28 ]                                    On November 3, 2023, EPA advised [NAME] it had relied on sections 198(1)(d) and (i) of EPEA [5] as the authority for the production of documents, set a deadline of November 10, 2023 for [NAME] to provide the requested information and further advised if [NAME] refused to produce documents EPA’s investigator would be in a position to move the investigation to the next step. [ 29 ]                                    On May 22, 2024, the Director provided [NAME] a preliminary assessment of the administrative penalty and economic benefit (the Preliminary Assessment). [ 30 ]                                    On May 23, 2024, [NAME], and [NAME]’s consultant, [NAME] of [COMPANY]., met with EPA and provided additional information regarding the Preliminary Assessment. [ 31 ]                                    On May 30, 2024, [NAME] provided the Director the agreements regarding [NAME]’s use of the land owned by [NAME]. [ 32 ]                                    On June 18, 2024, the Director issued the Penalty and Assessment to [NAME]. The Administrative Penalty consisted of 20 counts for a total penalty of $78,500.00. The Director also determined the Economic Benefit Assessment received by [NAME] was $9,846,135.00. The Director estimated from 2013 to 2022, [NAME] accepted 151,479 tandem dump truckloads carrying approximately 10.7 cubic metres (m 3 ) of reclamation material per truck for an estimated total of 620,835 m 3 of reclamation material accepted by [NAME] at the Pit (151,479 truckloads x 10.7 m 3 /truckload = 620,835 m 3 ). The Director estimated that [NAME] received a rate of $65.00 per truckload resulting in a total Economic Benefit Assessment for the economic benefit received by [NAME] of $9,846,135.00 for period 2013 to 2022 (151,479 loads x $65.00 per truckload = $9,846,135.00). In determining the Economic Benefit Assessment, the Director did not allow for any deductions from the proceeds received by [NAME] as the contaminated material accepted by [NAME] at the Pit could never have complied with the Code of Practice or EPEA. The total Penalty and Assessment was $9,924,635.00. [ 33 ]                                    O n July 17, 2024, the Board received two Notices of Appeal from [NAME] appealing the Penalty and Assessment (EAB Appeal No. 24-016 and EAB Appeal No. 24-017). [ 34 ]                                    On September 20, 2024, the Board received the Director’s Record which was provided to the Parties on September 24, 2024. [ 35 ]                                    On November 20, 2024, a mediation meeting was held. A resolution was not reached by the Parties. [ 36 ]                                    On November 25, 2024, the Director requested [NAME] pay the Penalty and Assessment by December 10, 2024, otherwise collection proceedings would be commenced as follows: “[A]s part of the administrative penalty process, EPA will be forwarding this file to [NAME] Board and Finance Crown Debt Collections, to commence the collection of the overdue receivables owing to the Crown. Prior to sending the file, I am providing you an opportunity to pay the administrative penalty by December 10, 2024” (the Payment Demand). [ 37 ]                                    On November 25, 2024, [NAME] provided the Board a copy of an email sent to legal counsel for the Director in response to the Payment Demand. [NAME]’ email stated section 237(4) of EPEA provides that collection of an administrative penalty may only legally commence after disposition of the appeal and upon the filing by the Minister of the administrative penalty or its varied version with the Court of [NAME]’s Bench. [6] [NAME] further stated “Please advise your client that should they take any kind of step in attempt to enforce the notice of administrative penalty before the appeal is disposed of as 237(4) requires, that it is our position such step is unlawful and will require us to bring a claim against the individual members of your client personally, similar in nature to that done in the seminal case of Roncarelli v. Duplessis , [1959] SCR 121. As per that decision, if the individuals of your client unlawfully try to enforce this notice of administrative penalty, they are not cloaked with any protection for their personal liability. I highly suggest you advise [the Director] to stop sending my client correspondence on this matter, and that same go through yourself via my office only on a go-forward basis.” [ 38 ]                                    On November 26, 2024, the Board advised that it expressed no opinion regarding the Payment Demand and that [NAME] could apply to the Board for a stay of the Penalty and Assessment. [ 39 ]                                    On December 5, 2024, [NAME] wrote to the Director alleging the disclosure in the Director’s Record was inadequate and there was a limitation period defence in the appeal as the alleged contraventions go back to at least 2014. [NAME] provided the Director with sixteen additional disclosure demands (the Disclosure Demand). [7] [ 40 ]                                    On December 13, 2024, [NAME] provided the Board a copy of a Letter of Service and Notice which included a copy of an originating application for judicial review (the Originating Application) of the Director’s decision regarding the Penalty and Assessment and notice of a constitutional question under section 25 of the Judicature Act , RSA 2000, c J-2, regarding the constitutionality of the provisions in sections 195 to, and including, section 209 of EPEA (the Letter of Service and Notice). [ 41 ]                                    The Letter of Service and Notice stated: “…though the Environmental Appeals Board does not have jurisdiction over any of the issues in dispute under the Constitution of Canada, Notices of Administrative Penalties adjudicated by other adjudicative bodies lacking such jurisdiction, have been held to have a limited scope to consider the Constitution of Canada, in particular they -May consider Charter values when applying the principles of fairness; and -Despite the absence of Charter jurisdiction, it will often be beneficial for a claimant to raise arguments which implicate Charter values before proceeding directly to court. Such an approach would result in the resolution of at least some cases through comparatively inexpensive administrative proceedings, and also provide the court with an initial analysis of those issues by an independent and impartial decision-maker-albeit through the lens of administrative fairness. Where a litigant fails or refuses to raise such issues before proceeding to court, the court would have a discretion to decline to hear an application for Charter relief based upon the doctrine of exhaustion. [NAME] v. [NAME] (Director of [NAME]) , at para. 151-156. [8] As such, based on, inter alia, [NAME] v. [NAME] (Director of [NAME]) , please take notice that before the Environmental Appeals Board the issues under the Constitution of Canada as plead in the Original Application for Judicial Review and Notice of Constitutional Question will be argued despite the Environmental Appeals Board's lack jurisdiction.” [ 42 ]                                    On December 13, 2024, the Board acknowledged receipt of the Letter of Service and Notice and confirmed its understanding that the Board was not a party to the judicial review, and the judicial review had been adjourned sine die pending the outcome of the appeals before the Board. The Board requested the Parties provide a copy to the Board of any correspondence relating to the judicial review and noted the Board would include the materials attached to the Letter of Service and Notice (the Attached Materials) in the appeal file but would not include any further materials regarding the judicial review. The Board also noted it would consider the argument of whether the Board had limited scope to consider the Constitution of Canada at the hearing of the appeal. The Board set a process for the Parties to provide submissions regarding the issues for the hearing. [ 43 ]                                    On December 19, 2024, the Director provided three of the disclosures demanded by [NAME] in the Disclosure Demand and advised the Board that he would be providing the photographs used to create the drone mosaic imagery in the Director’s Record. The Director stated he did not consent to provide any of the other documents described in the Disclosure Demand. The drone photo mosaic was provided by the Director on January 6, 2025. [ 44 ]                                    On December 20, 2024, the Board requested [NAME] advise by January 6, 2025, if they would make a motion to compel disclosure of any of the documents the Director did not consent to provide. [ 45 ]                                    On December 23, 2024, the Board set the virtual hearing of the appeal for March 25 and 26, 2025. [ 46 ]                                    On December 20, 2024, the Director requested the Board not include any materials relating to the judicial review on the appeal file or alternatively include only the Letter of Service and Notice and not the Attached Materials. [ 47 ]                                    On January 10, 2025, [NAME] advised the Board the Additional Documents submitted by the Director were insufficient. [NAME] acknowledged they had missed the deadline of January 6, 2025, to notify the Board that [NAME] intended to make a motion to compel disclosure (the January 6, 2025 Deadline). [NAME] requested the Board set a procedure for the Parties to make submissions on the disclosure issue ([NAME]’ Disclosure Submissions Process Request). [ 48 ]                                    On January 14, 2025, the Director requested the Board deny [NAME]’ Disclosure Submissions Process Request and provided submissions on whether the Board should consider a motion by [NAME] to compel the production of documents when [NAME] failed to meet the January 6, 2025 Deadline (Director’s Dismissal Motion). [ 49 ]                                    On January 14, 2025, the Appellant provided response submissions regarding the Appellant’s Disclosure Submissions Process Request. [ 50 ]                                    On January 24, 2025, [NAME] and the Director provided submissions regarding the issues for the hearing, preliminary issues, and whether the Board should consider Charter values at the hearing of the appeals ([NAME]’ Initial Submission and the Director’s Initial Submission, respectively). [ 51 ]                                    On January 31, 2024, [NAME] and the Director provided response submissions regarding the hearing issues ([NAME]’ Response Submission and the Director’s Response Submission, respectively.) [ 52 ]                                    On February 14, 2025, the Board advised the Parties that due to the complexity of the Parties’ correspondence regarding the hearing issues and the time it would take the panel to deliberate and issue a decision, the March 2025 hearing was postponed as there was not enough time for the Parties to provide their submissions. The Board confirmed it would advise the Parties with respect to new dates for the hearing as well as with respect to [NAME]’ Disclosure Submissions Process Request and the Director’s motion that the materials relating to the judicial review filed by [NAME] not be included in the Board’s file. [ 53 ]                                    On January 15, 2026, the Board granted [NAME]’ request to extend the January 6, 2025 Deadline for the Appellant to notify the Board of their intent to compel disclosure. [9]

3.                                          ISSUE [ 54 ]                                    The issue to be determined by the Board is whether the Board should require [NAME] to provide further particulars regarding [NAME]’ Notices of Appeal and if so, should the details provided by [NAME] be included when the Board sets the issues for the hearing.

4.                                          LEGISLATION, REgulation and rules of practice [ 55 ]                                    The authority of the Board to determine the issues that will be heard at the hearing of an appeal is found in section 95(2) of EPEA. Section 95(2) provides in part: “95(2)  Prior to conducting a hearing of an appeal, the Board may, in accordance with the regulations, determine which matters included in notices of appeal properly before it will be included in the hearing of the appeal, and in making that determination the Board may consider the following: … (d)       whether any new information will be presented to the Board that is relevant to the decision appealed from and was not available to the person who made the decision at the time the decision was made; (e)        any other criteria specified in the regulations. (3)        Prior to making a decision under subsection (2), the Board may, in accordance with the regulations, give a person who has submitted a notice of appeal and to any other person the Board considers appropriate, an opportunity to make representations to the Board with respect to which matters should be included in the hearing of the appeal. (4)        Where the Board determines that a matter will not be included in the hearing of an appeal, no representations may be made on that matter at the hearing. … ” [ 56 ]                                    Sections 91(6) of EPEA and 5(1) of the Environmental Appeals Board Regulation , Alta Reg 114/1993 (the Regulation) set out the information that must be contained in a notice of appeal. Section 91(6) of EPEA provides: “91(6)  A notice of appeal submitted to the Board under this Act or in accordance with the Water Act must contain the information and be made in the manner provided for in the regulations.” Section 5(1) of the Regulation provides: “Notice of Appeal 5(1)      A notice of appeal submitted pursuant to section 91 of the Act shall contain the following: (a)                the provision of the Act under which the notice of appeal is submitted; (b)                the name and title of the person whose decision is the subject of the notice of appeal and the details of the decision being appealed; (c)                a description of the relief requested by the person appealing; (d)                the signature of the person appealing, or the person’s lawyer or other agent; (e)                an address for service for the person appealing.” [ 57 ]                                    Section 95(8) of EPEA also authorizes the Board to establish rules and procedures with respect to dealing with matters before it: 95(8)    Subject to the regulations, the Board may establish its own rules and procedures for dealing with matters before it.” [ 58 ]                                    Rules 5 of the Board’s Rules of Practice, Environmental Appeals Board (November 2024) (the Rules of Practice), sets out the information that is required to be contained in a notice of appeal. Rule 9 of the Rules of Practice reaffirms the Board’s authority to set the issues for an appeal. Rule 5 provides: “5.       Notice of Appeal A Notice of Appeal must contain the following information: •                      the provision of the Environmental Protection and Enhancement Act or Water Act or Emissions Management and Climate Resilience Act, or Government Organization Act under which the Notice of Appeal is submitted; •                      the name and title of the person whose decision is the subject of the Notice of Appeal and the details of the decision objected to; •                      the grounds of appeal including the reasons why the Appellant objects to the decision appealed; •                      a description of the relief requested by the person objecting; •                      the signature of the person objecting, or the person’s agent; and •                      an address in [NAME] for service for the person objecting. …” Rule 9 provides: “9.       Determination of Issues The Board shall determine which matters included in the Notice of Appeal will be included in the hearing of the appeal. The Board may consider certain matters before it makes its determination (section 95(2)). Where the Board determines that a matter will not be included in the hearing of an appeal, no representations may be made on that matter (section 95(4)).” 5.                                          submissions 5.1.                                     [NAME] [ 59 ]                                    [NAME] stated in their Notices of Appeal the following: “[NAME] assert that Administrative Penalties and Economic Benefits Assessment have been improperly issued and lack a proper factual and legal foundation. [NAME] further assert that the Director’s actions are punitive in nature and are also harmful to the environment since the Director is frustrating [NAME]’ efforts to complete the reclamation of these important river front lands within the City of Edmonton. Finally, [NAME] take the position that the amounts of the Administrative Penalties and Economic Benefit Assessment are not reasonable. [NAME] also take the position that EPA and its investigators breached [NAME]’ rights under the [Canadian] Charter of Rights and Freedoms a number of times during the investigation and the penalties should be dismissed as a result of the Charter breaches. The alleged Charter breaches may also raise issues as to the admissibility of evidence and the proper contents of the Director’s Record.” [ 60 ]                                    [NAME] submitted the Board should set the hearing issues as follows:

1.                   Was the Administrative Penalty properly issued, for each of the 20 Counts in the Notice of Administrative Penalty, against each of the two [NAME]? 2.                   Is the amount assessed in the Administrative Penalty reasonable as against each of the two [NAME]? [10] [ 61 ]                                    [NAME] further submitted the following preliminary issues to be determined by the Board:

1.                   Is the disclosure provided by the Director in the circumstance sufficient and complies with procedural fairness, particularly regarding the limitation period issue? (The Disclosure Motion.)

2.                   Once a disclosure decision is issued for (1), are any or all the 20 Counts in the Notice of Administrative Penalty barred by being out of time? (The Limitations Motion.) [NAME] submitted the Limitations Motion was properly before the Board as they had plead in their Notices of Appeal that the Penalty and Assessment was improperly issued or lacked a proper legal foundation and could be heard either as a preliminary motion or as part of the merit hearing. The Board notes that on January 15, 2026, the Board granted [NAME]’ Disclosure Submission Process Request. [ 62 ]                                    [NAME] submitted the Director’s Initial Submission had no basis in law and if adhered to would render the proceedings procedurally unfair. [NAME] noted it was asserted by the Director that if an appellant does not specify a matter as a ground of appeal in a notice of appeal, the [NAME] has directed the Board not to include that matter in the hearing of the appeal. [NAME] argued that in making that assertion, the Director read words into section 95(2) of EPEA that were not there, and that the Director read section 95(2) in isolation of the rest of the related provisions in Part 4 of EPEA. [ 63 ]                                    [NAME] argued the purposive approach to statutory interpretation should be applied when interpreting the legislation governing the filing of a notice of appeal with the Board. [NAME] relied on the decision of the Supreme Court of Canada in R. v. [NAME], 2024 SCC 34 ( [NAME] ) which confirmed the purposive approach to statutory interpretation as follows: “Words of a statute are to be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’ [citation omitted]. While it is a proper starting point, the ordinary meaning of test is not determinative [citation omitted.]. Statutory interpretation is incomplete without considering context, purpose, and relevant legal norms [citation omitted].” [11] [ 64 ]                                    [NAME] further noted that the Supreme Court of Canada in [NAME] had endorsed and used a three-part framework for statutory interpretation that considered the text, context and legislative purpose of the legislation. [NAME] noted that it was understood that these were not airtight compartments, were closely related, and interdependent. [12] [ 65 ]                                    [NAME] provided the Board an analysis of the relevant legislation applying the three-part framework set out in [NAME]. Text [ 66 ]                                    [NAME] argued that there was nothing in the text of the relevant sections of EPEA stating if an appellant does not specify a matter as a ground of appeal in a notice of appeal the [NAME] has directed the Board not to include that matter in the hearing of the appeal. [13] [ 67 ]                                    [NAME] noted while nothing in the text of EPEA required [NAME] to specify the grounds of appeal in their Notices of Appeal, section 91(6) of EPEA requires that a notice of appeal “must contain the information and be made in the manner provided for in the regulations.” Further, [NAME] noted section 95(2)(e) of EPEA allows the Board to consider “any other criteria specified in the regulation” when determining which matters will be heard at an appeal. [ 68 ]                                    [NAME] submitted that the relevant section of the Regulation referred to in section 95(2)(e) of EPEA was section 5(1). [14] [NAME] argued there was nothing in the text of section 5(1) of the Regulation stating that the grounds of appeal were a requisite in a notice of appeal nor was there anything in the text of section 95(2) of EPEA permitting the Board to consider matters other than those specified in sections 95(2)(a) to (e). [ 69 ]                                    [NAME] acknowledged section 95(8) of EPEA provides the Board the authority to make rules and procedures dealing with matters before it, [15] but argued Rule 5 of the Board’s Rules of Practice purported to impermissibly add the requirement that a notice of appeal must contain “[t]he grounds of appeal including why the Appellant objects to the decision appealed,” [16] [NAME] asserted the Board’s ability to set rules and procedures was subject to regulation, and that section 95(8) does not give the Board the jurisdiction to amend the Regulation by adding further requirements to the contents of a notice of appeal when there is legislation that deals exclusively with that matter. [ 70 ]                                    [NAME] argued the interpretation of section 5 of the Regulation is subject to the maxim “ unius est exclusion alterius ” (to express one thing is to exclude another). [NAME] submitted the [NAME] deliberately excluded the grounds of appeal as a requisite for a notice of appeal from section 5 of the Regulation. Further, there is nothing in section 95(2) of EPEA permitting the Board to consider factors other than those set out in section 95(2). [17] [NAME] referred to the statement of the Supreme Court of Canada in [NAME] : “[w]here express reference is expected, the court can infer that the failure to mention something is the result of a deliberate decision to exclude it.” [18] Context [ 71 ]                                    [NAME] submitted [NAME] also requires the Board to consider the context of other provisions of EPEA and the Regulation, and general legal principles in the context of administrative and environmental law, and the practical and legal effects of the interpretation asserted by the Director. [ 72 ]                                    [NAME] submitted it is not necessary that the grounds of appeal be included in [NAME]’ Notices of Appeal because after receiving [NAME]’ Notices of Appeal, the Board has the ability under section 92 of EPEA to seek further particulars. [19] Further, [NAME] argued that when section 92 of EPEA is read in conjunction with section 93, the Board may permit an amendment of an appeal both “before or after the expiry of the prescribed time” for filing a notice of appeal as the Board may “extend the time prescribed in this Part or the regulations for the doing of anything where the Board is of the opinion that there are sufficient grounds for doing so.” [ 73 ]                                    [NAME] argued proceedings before the Board are de novo , and it is not justifiable that these proceedings would be more onerous than a de novo appeal from a Court of [NAME]’s Bench Application Judge to a Court of [NAME]’s Bench Justice. [NAME] noted there is not even space on the form for an appeal from a Court of [NAME]’s Bench Application Judge decision for the appellant to plead grounds of appeal. [20] [ 74 ]                                    With respect to the Director’s submission that the principles regarding the adequacy of pleadings set out in [NAME] v. [NAME] (Director of [NAME]) , 2021 ABQB 568 ( [NAME] ) apply to administrative proceedings like those before the Board , [NAME] argued [NAME] was distinguishable from the current circumstances. [NAME] considered an application for judicial review of a decision of an adjudicator under the [NAME] regime. [NAME] submitted the current circumstances before the Board were more like an appeal under the [NAME] regime by a recipient of a notice of administrative penalty to an adjudicator, rather than an application for judicial review of the ensuing decision of the adjudicator. [NAME] noted that even before a Court, litigants are permitted to amend pleadings at any time before pleadings close, and after close, with leave on a very liberal standard. [21] [ 75 ]                                    [NAME] submitted that, in the context of the appeals, to require [NAME] to plead the grounds of appeal in their Notices of Appeal was contrary to the rules of natural justice and procedural fairness. [NAME] noted that at the time of filing the Notices of Appeal they had not received disclosure from the Director and did not know the case to meet, and if required to plead the grounds of appeal in their Notices of Appeal, it would violate [NAME]’ right to be heard. Legislative Purpose [ 76 ]                                    With respect to legislative purpose, [NAME] submitted the Court’s decision in [NAME] required the Board to consider that “in so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided.” [22] However, [NAME] noted that the purpose of EPEA set out in section 2 provided little assistance in the interpretation of the procedural portion of EPEA and matters of natural justice and procedural fairness. [NAME] submitted based on the three-part framework in [NAME], the Director’s assertion that where an appellant does not specify a matter as a ground of appeal in a notice of appeal the [NAME] has the directed the Board not to include that matter in the hearing of the appeal has no basis and is wrong. [ 77 ]                                    The Appellant asserted under EPEA and the Regulation, it is “matters” not grounds of appeal that must be specified in a notice of appeal. However, [NAME] argued that the grounds of appeal had been clearly stated in the Notices of Appeal. The Notices of Appeal stated the issuance of the Penalty and Assessment was unlawful and the quantum unreasonable. [NAME] submitted they had provided the particulars of the Charter issues and had raised the fact the penalties were issued out of time and that they seek disclosure. [ 78 ]                                    [NAME] argued that the issues proposed by the Director were not logical for a de novo appeal. There was no requirement [NAME] establish the Director made an error of law as there is no deference shown the Director in the hearing of the matter. [NAME] argued a de novo hearing is a “a new hearing of a matter, conducted as if the original hearing had not taken place” . [23] [ 79 ]                                    [NAME] argued the issues put forward by [NAME] in these appeals are like the issues framed by the Board for a similar appeal, which were consented to by the Director and the appellant in [COMPANY]. v. Director, [NAME] 2020 ABEAB 30 ( [NAME]), and noted that “… the Director in that case did [not] waste the resources of the parties and the Board’s time with extensive obstructionist submissions.” [24] [NAME] stated the issues in [NAME] were as follows:

1.                   Was the Administrative Penalty properly issued? 2.                   Is the amount assessed in the Administrative Penalty reasonable? [ 80 ]                                    The Board notes [NAME] provided submissions regarding the Board’s consideration of the alleged breaches of [NAME]’ rights under the Charter and Charter values. As stated in the Board’s letter of December 13, 2024, the Board will consider argument of whether the Board has the limited scope to consider the Constitution of Canada at the hearing of the appeals and will determine at the hearing the relevance and weight of the evidence and argument provided by the Parties . 5.2.                                     Director [ 81 ]                                    The Director submitted that [NAME]’ Notices of Appeal were general in nature and provided few, if any, particulars making it difficult to define the nature and scope of the issues for the hearing. The Director requested the Board require [NAME] to: 1.                   provide particulars regarding the errors of material fact and law that the Director made in making the decision to issue the Penalty and Assessment; 2.                   provide details about how and why the decision to issue the Penalty and Assessment was punitive in nature; 3.                   provide details about what in the decision to issue the Penalty and Assessment harms the environment; and 4.                   provide what parts of, and how and why the Penalty and Assessment were unreasonable. The Director submitted the appropriate standard of review should be included as an issue at the hearing and that the particulars provided by [NAME] be included in the wording of the issues. [25] [ 82 ]                                    The Director further submitted the issues for the hearing must be included in [NAME]’ Notices of Appeal, relate to the decision being appealed, and be within the jurisdiction of the Board. [ 83 ]                                    The Director submitted the Board’s authority to determine the matters to be included in the hearing of an appeal are set out in section 95(2), (3), and (4) of EPEA. The Director argued for a matter to be “included in the hearing of an appeal” it must be included in the “notices of appeal properly before it.” [26] The Director further argued section 95(2) of EPEA provides that if an appellant does not specify a matter as a ground of appeal in a notice of appeal the [NAME] has directed the Board not to include that matter in the hearing of the appeal. [27] [ 84 ]                                    The Director argued that Rule 5 and Rule 9 of the Board’s Rules of Practice, are consistent with the direction of the [NAME] that the Board shall not hear matters not specified in a notice of appeal as grounds for appeal. Rule 5 provides, amongst other things, that a notice of appeal must contain “the grounds of appeal including the reasons why the Appellant objects to the decision appealed …”. Rule 9 provides in part that “[t]he Board shall determine which matters included in the Notice of Appeal will be included in the hearing of the appeal.” [ 85 ]                                    The Director submitted that an originating document such as a notice of appeal under EPEA must contain sufficient particulars and supporting arguments to enable the Board and the Director to understand the alleged errors in the Director’s decision. The Director submitted an overly broad notice of appeal results in hearing issues that are also overly broad and vague. [ 86 ]                                    The Director submitted the Board should set clearly defined and specific issues that identify the errors of fact and law on which the Board can expect to receive argument because it assists the Board by: 1.                   framing the Parties’ arguments; 2.                   understanding where the Parties disagree; and 3.                   identifying important facts and their relevance. [ 87 ]                                    The Director noted that in [NAME] , the Court considered an originating application for judicial review which contained bald pleadings about alleged errors of the statutory decision-maker and concluded the application was defective. The Director argued that while [NAME] was decided in the context of an application for judicial review and the [NAME] of Court , Alta Reg. 124/2010, [NAME]’ Notices of Appeal were similar, and the principles discussed in [NAME] regarding originating documents should apply to the Notices of Appeal. [ 88 ]                                    The Director noted in [NAME] , the Court had outlined five principles in relation to an originating document: “1.       sets the issues to which an opposing party must respond; 2.         must provide a basis for the Court and other litigants to make a meaningful response , and indicate to the responding parties the ‘… who, when, where, how, and what gave rise to its liability”; 3.         if it seeks relief under the Canadian Charter of Rights and Freedoms, needs to contain ‘a factual foundation’ for such claim as ‘an absolute requirement’; 4.         that lacks specificity contains ‘not merely a technical defect’, but one that ‘goes to the core of the claim’; 5.         that is inadequate is an ‘abuse [of] the Court’s process because … the Court cannot control the proceedings, identify the proposed argument, or make findings on the relevant facts.’” [28] [ Emphasis added by the Director. ] The Director further noted that the Court had determined that a bald pleading and simply alleging an error in law was not sufficiently particular. [29] [ 89 ]                                    The Director argued [NAME]’ Notice of Appeal raised matters in a general nature and provided few, if any particulars explaining how the Director made the errors alleged. The Director argued that lack of detail makes it difficult to define the nature and the scope of the issues for the hearing given the Notice of Appeal is the starting place for defining the issues. [ 90 ]                                    The Director argued that the Notices of Appeal assert that the Penalty and Assessment were improperly issued and lack a proper factual and legal foundation. The Director argued that [NAME] provide no details about the alleged legal or factual deficiencies, leaving a number of unanswered questions, including:

1.         What factual foundation relied on by the Director do [NAME] allege is improper? 2.         How is the alleged factual foundation lacking? 3.         How does the purported improper factual foundation constitute an error in the issuance of the Penalty and Assessment? [30] [ 91 ]                                    The Director further argued that with respect to the alleged deficient legal foundation, [NAME] similarly provide no details about the alleged legal deficiencies, leaving a number of unanswered questions, including:

1.         What legal foundation relied on by the Director do [NAME] allege is improper? 2.         How is the alleged legal foundation lacking? 3.         How does the purported improper legal foundation constitute an error in the issuance of the Penalty and Assessment? [31] The Director argued that similar and other unanswered questions remain for [NAME]’ other unparticularized assertions in the Notice of Appeal, including [NAME]’ claim that the Director’s decision is punitive without explanation or facts to support their contention of how the Director’s decision is punitive. [ 92 ]                                    The Director requested that the Board provide the opportunity for [NAME] to clarify the particulars of the “who, when, where, how and what” of the errors they allege the Director made in their Notice of Appeal and include those details in the wording of the proposed issues for hearing. [ 93 ]                                    With respect to [NAME]’ proposed issues for the hearing, the Director submitted that the first issue proposed by [NAME] with respect to the proper issuance of the Administrative Penalty was an all-encompassing question and too broad. Without particulars in the Notice of Appeal, the Director argued the Board and the Director could only speculate about the matters [NAME] would raise. Similarly, the Director argued that the second issue proposed by the Appellant was also too broad as [NAME] had not provided detail about how the penalty is unreasonable. The Director further submitted the Board should not consider the Originating Application as part of the Notice of Appeal and even if the Board does so, it should not be left to the Director and the Board to reformulate the Originating Application so that its contents might be arguable in proceedings before the Board. [ 94 ]                                    The Director proposed the following issues for the hearing:

1.                   In making his decision to issue Penalty and Assessment, did the Director err in the determination of a material fact by: (a)                  determining that [NAME] imported reclamation materials that were not authorized by EPA including under EPEA, [NAME]’s EPEA Registration, the 2014 Activities Plan, and/or the Code of Practice? (b)                 finding that the contraventions carried the potential for adverse effects to the environment? (c)                  ([NAME] to insert details about the alleged error of material fact), (d)                 ([NAME] to insert details about the alleged error of material fact), etc.

2.                   In making the Decision, did the Director err in law by: (a)                  applying the law in [NAME] as it was on the date of the Decision for the regulation and reclamation of [COMPANY] pits? (b)                 improperly interpreting or applying the 2014 Activities Plan or the prohibitions in EPEA and/or the Code of Practice that form the basis of the contraventions? (c)                  ([NAME] to insert details about the alleged error of law) (d)                 ([NAME] to insert details about the alleged error of law), etc.

3.                   Is the Decision (a)                  inappropriately punitive in nature because ([NAME] to insert details about how and why they allege the Decision is punitive)? (b)                 harmful to the environment or inconsistent with the purpose of administrative penalties in environmental law because ([NAME] to insert details about what in the Decision harms the environment and how and why it does so)? 4.                   Are the amounts in the Penalty and Assessment unreasonable because (a)                  ([NAME] to insert details about what part(s) of the Penalty Assessment is unreasonable and how and why these part(s) are unreasonable)? 5.                   What is the appropriate standard of review? [32] [ 95 ]                                    The Director acknowledged that in past appeals issues have been all-encompassing in scope but argued issues that are too broad: 1.                   frustrate the objective of maintaining an efficient and organized appeal process; 2.                   can lead to the Parties focusing significant time on matters that are of marginal relevance or are outside of the Board’s jurisdiction; and 3.                   make assessing relevance and materiality of evidence significantly more challenging for the Parties and the Board. [33] [ 96 ]                                    The Director argued that if a matter has not been identified as a ground of appeal in a Notice of Appeal even in general terms, the Board ought not to include it as an issue in the hearing of the appeal. The Director further noted [NAME]’ additional disclosure request of December 5, 2024, wherein [NAME] had raised both the Limitations Issue and the Personal Liability of [NAME]. The Director argued that neither of these matters were specifically identified as grounds of appeal in the Notice of Appeal and they should have raised them in general terms. The Director argued these were not proper issues for the hearing. [ 97 ]                                    The Board notes the Director argued that [NAME] provided insufficient notice of and particulars with respect to the Board’s limited scope to consider the Charter and Charter values at the hearing of the appeals. The Director stated that [NAME] have not particularized any claim about procedural fairness issues going to the merits of the appeal. The Director also provided the Board submissions in respect of Charter values. As previously noted, the Board confirmed it will consider argument of whether the Board has limited scope to consider the Charter at the hearing of the appeals and will determine at the hearing the relevance and weight of the evidence and argument provided by the Parties .

6.                                          AnAlysis [ 98 ]                                    For a matter to be considered at the hearing of the appeal, the matter must be identified in the notice of appeal, be within the Board’s jurisdiction and be connected to the Director’s decision being appealed. [34] While the Parties agree that the Board has the jurisdiction to set the issues for the appeals, the Parties disagree with respect to the detail that must be included in [NAME]’ Notices of Appeal for the matter to be properly before the Board and be included as an issue in the hearing of the appeals. [ 99 ]                                    As previously noted, the Board’s authority to determine the issues for hearing is set out in section 95(2) of EPEA which provides in part. “95(2)  Prior to conducting a hearing of an appeal, the Board may, in accordance with the regulations, determine which matters included in notices of appeal properly before it will be included in the hearing of the appeal …” [ 100 ]                                The Director argued [NAME]’ Notices of Appeal were general in nature and lacked sufficient detail making it difficult to define the issues for the hearing because the Notices of Appeal: 1.                   failed to provide particulars regarding errors of material fact and law made by the Director; 2.                   failed to provide details about how and why the decision to issue the Penalty and Assessment was punitive in nature; 3.                   failed to provide details about what in the decision to issue the Penalty and Assessment harms the environment; and 4.                   failed to provide what parts of, and how and why the Penalty and Assessment were unreasonable. [ 101 ]                                The Director requested the Board require [NAME] provide further particulars with respect to their Notices of Appeal and that the details provided by [NAME] be included in the issues for the hearing. The Director submitted the standard of review should also be included as an issue at the hearing. [ 102 ]                                The Director argued that if an appellant does not specify a matter as a ground of appeal in a notice of appeal, EPEA and the Regulation should be interpreted such that the [NAME] has directed the Board not to include that matter in the hearing of the appeal. [ 103 ]                                The Director argued several of the principles enumerated in the [NAME] of [NAME]’s Bench decision in [NAME] applied to the setting of issues in the appeals . The Director submitted the Board should set clearly defined and specific issues that identify the errors of fact and/or law on which the Board can expect to receive argument. [ 104 ]                                The Director argued that the Limitations Issue and the Personal Liability Issue were not matters included in [NAME]’ Notices of Appeal and therefore were not properly before the Board. [ 105 ]                                [NAME] submitted there is no basis in law for the Director’s assertion that if an appellant does not specify a matter as a ground of appeal in its notice of appeal, the [NAME] has directed the Board not to include that matter in the hearing of the appeal. [ 106 ]                                [NAME] submitted the hearing issues should be as follows:

1.                   Was the Administrative Penalty properly issued, for each of the 20 Counts in the Notice of Administrative Penalty, against each of the two [NAME]? 2.                   Is the amount assessed in the Administrative Penalty reasonable as against each of the two [NAME]? [ 107 ]                                [NAME] argued if the three-part framework (text, context, and legislative purpose) set out by the Supreme Court of Canada in its decision in [NAME] was applied when interpreting the provisions in EPEA and the Regulation, the Director’s interpretation that the grounds of appeal must be set out in the Notices of Appeal was not supported. [ 108 ]                                [NAME] submitted that [NAME] was distinguishable on its facts and was not applicable to the setting of the issues for the appeals of the decision of the Director to issue the Penalty and Assessment. In this regard, [NAME] argued [NAME] did not apply as no particulars or grounds of appeal are required to appeal a notice of administrative penalty to an adjudicator in the [NAME] regime. [NAME] argued the more appropriate comparison was that both the decision of an adjudicator under the [NAME] regime or that of the Board could be judicially reviewed by the Court of [NAME]’s Bench [ 109 ]                                [NAME] argued it would be a breach of natural justice and procedural fairness to require [NAME] to plead the grounds of appeal in their Notices of Appeal because [NAME] had not received disclosure at the time of filing of their Notices of Appeal and did not know the case to meet which would be contrary to [NAME]’ right to be heard. [ 110 ]                                The Board agrees with [NAME] that neither section 95(2) of EPEA nor section 5(1) of the Regulation require [NAME] to specify the grounds of appeal in their Notices of Appeal. Further, with respect to section 5 of the Board’s Rules of Practice, it is the Board’s view that the Rules of Practice are subject to the Regulation and should not be interpreted to require [NAME] to provide more detail in [NAME]’ Notices of Appeal regarding the grounds of appeal than that required under the Regulation. [ 111 ]                                Natural justice and procedural fairness require that a party know the case it must meet so that the party can respond. At the time the Board receives a notice of appeal, neither the appellant nor the Board will have been provided the Director’s records. An Appellant therefore does not know the entirety of the case it must meet, and the Board cannot determine which particulars, if any, should be included in setting the issues for the appeals. [ 112 ]                                The Board notes in these appeals, [NAME] did not receive the Director’s Record until after the period to file a notice of appeal had expired. The Board is of the view that requiring a party to enumerate in detail the grounds of appeal in a notice of appeal prior to receiving disclosure would mean that an appellant’s grounds of appeal would be limited to those that could be ascertained from the information disclosed during the process leading up to the issuance of an administrative penalty and economic benefit assessment or that which was contained within the text of an administrative penalty or economic benefit issued by the Director. This would lead to the untenable result that a director could limit the scope of an appeal by providing few and vague particulars to an appellant until after the issuance of an administrative penalty or economic penalty assessment. [ 113 ]                                With respect to the Director’s argument that the principles in [NAME] applied to the setting of issues in the appeal, the Board finds [NAME] is distinguishable on the facts and is not applicable to the matter before it. [ADDRESS] in [NAME] was considering an application for judicial review of the decision of an adjudicator under the [NAME] regime not an appeal of a decision under the Safe Roads regime to an adjudicator which, like the matter before the Board, is on a de novo basis. [ 114 ]                                The Board acknowledges the Director’s concerns that if matters in a notice of appeal are too general it may be difficult to define the scope and nature of the issues for the hearing and that the Parties may focus on irrelevant issues or matters outside the Board’s jurisdiction which makes assessment of the relevance and materiality of evidence challenging. However, the Board does not find the Director’s arguments persuasive and a basis upon which the Board will require [NAME] to provide further particulars of their evidence, argument, and legal basis for their appeals at this time, in this case. To establish a process where [NAME] must provide particulars of their evidence and argument when the Board sets the issues for the hearing would be inefficient and duplicative of the submission process. It is at the hearing of the merits of the appeals that the Board must determine whether the submissions of the Parties are relevant to the issues and what weight they will be given. The Board notes that if the Director has concerns about the relevance and materiality of evidence presented by [NAME] or the Board’s jurisdiction with respect to any matter, the Director may raise his concerns by way of a preliminary motion or provide argument in that regard in his response submissions or at the hearing of the appeals. [ 115 ]                                The Board is also of the view that should the Director determine that the submission process established by the Board does not provide the Director sufficient opportunity to respond to the evidence or argument presented by [NAME] in their submissions, the Director may request an extension of time to prepare his response submission. [ 116 ]                                The Director also argued that the Limitations Issue and the Personal Liability Issue were not properly before the Board as they were not pled in the Notices of Appeal. The Board disagrees. [ 117 ]                                [NAME] asserted in their Notices of Appeal that EPA was aware alternative reclamation materials were being brought onto the site for reclamation purposes and that reclamation was occurring pursuant to the legislation and the direction of EPA officials. [NAME] have further asserted that the Penalty and Assessment was “improperly issued and lack a proper legal and factual foundation.” [35] While an allegation of improper issuance is broad, the Board is of the view that it is not uncertain. It is the Board’s view that for the Penalty and Assessment to be properly issued it must be issued in accordance with legislation and the principles of procedural fairness and natural justice. If the Penalty and Assessment was issued to a person who was not responsible for the contravention under applicable legislation or if the Penalty and Assessment was issued outside the legislated time for doing so, the Penalty and Assessment may be improperly issued, as pled by [NAME] in their Notices of Appeal. [ 118 ]                                The Board notes [NAME] have requested additional disclosure of the Director’s Records on more than one occasion, and more specifically the records which the Director referenced in the Penalty and Assessment. The additional disclosure application has yet to be decided. However, with respect to setting the issues for the hearing, the Board is troubled by the Director’s approach. In this regard, the Board notes the Director may have withheld documents relied upon in deciding the Penalty and Assessment and is now arguing that [NAME] must provide further particulars of their concerns with the intent of scoping the issues to be heard at appeal without the ability to review those documents. It is possible that prompt disclosure of the requested documents may have allowed the Parties to assess their respective positions and narrow the issues for the hearing in advance of this motion, while negating the need for the additional disclosure motion. [ 119 ]                                With respect to the Director’s request that the Board set the standard of review as an issue for the hearing, the Board accepts, as in previous proceedings before the Board, that the Director may raise the appropriate standard of review as a preliminary matter at the hearing of the appeals. Preliminary matters such as the standard of review, admissibility of evidence or relevance of evidence do not have to be identified in the notice of appeal in order to be raised; they are preliminary matters that can always be raised at the hearing of the appeal. However, as the Director has done in this case, it is away preferable to raise the issue ahead of time. This way all the parties are on notice, and the Board can account for such arguments when it set the schedule for the hearing. [ 120 ]                                As stated previously with respect to [NAME]’ submissions regarding Charter values, the Board confirms it has determined it would hear argument with respect to its limited scope to consider the Charter at the hearing of the appeal and will also determine the relevance and weight of the evidence and argument provided by the Parties at the hearing of the appeal. [ 121 ]                                Accordingly, the Board dismisses the Director’s request that the Board require [NAME] provide further particulars with respect to the Notices of Appeal. The Board sets the issues for the appeal as follows:

1.                   Was the Administrative Penalty properly issued for each of the 20 Counts in the Notice of Administrative Penalty, as against each of the two [NAME]? 2.                   Is the amount assessed for Administrative Penalty for each of the 20 counts in the Notice of Administrative Penalty appropriate, as against each of the two [NAME]? 3.                   Was the Economic Benefit Assessment properly issued and is the amount assessed for the Economic Benefit Assessment appropriate, as against each of the two [NAME]? 4.                   What is the appropriate standard of review with respect to these appeals? 7.

DECISION [ 122 ]                                On the request by the Director that the Board require [NAME] provide further particulars with respect to [NAME]’ Notices of Appeal, the Board dismisses the Director’s request. [ 123 ]                                The Board sets the issues for the hearing as follows:

1.                   Was the Administrative Penalty properly issued for each of the 20 Counts in the Notice of Administrative Penalty, as against each of the two [NAME]? 2.                   Is the amount of the Administrative Penalty assessed for each of the 20 counts in the Notice of Administrative Penalty appropriate, as against each of the two [NAME]? 3.                   Was the Economic Benefit Assessment properly issued and is the amount assessed for the Economic Benefit Assessment appropriate, as against each of the two [NAME]? 4.                   What is the appropriate standard of review with respect to these appeals? Dated on January 28, 2026, at Edmonton, [NAME]. -original signed- __________________ [NAME] Board and Panel Chair [1]              The Board wishes to clarify that the Board’s “acceptance” of [NAME]’ appeals does not mean that the Penalty and Assessment was improperly issued. [2]              [NAME]’ Initial Submission at page 1 and page 2. [3]              [NAME] and [COMPANY]. v. Director, North Region, Capital District, Regulatory Assurance Division, [NAME] , 2024 ABEAB 13, at paragraph 6. See also EAB Appeal File No. 22-066, Affidavit of [NAME], sworn November 29, 2022, at paragraph 4, and Exhibit “B” to the Affidavit. [4]              See Board Decision: [NAME] and [COMPANY]. v. Director, North Region, Capital District, Regulatory Assurance Division, [NAME] , 2024 ABEAB 13. [5]              Sections 198 (d) and (i) provide: “Right of entry and inspection 198(1)    For the purpose of the administration of this Act, an investigator may, without a search warrant or order to enter and inspect and subject to section 199, at any reasonable time do any or all of the following: … (d)           enter and inspect any place that the investigator reasonably believes is likely to contain documents related to (i) an activity or thing that is, or is required to be, the subject of an approval, code of practice, registration, certificate of variance, reclamation certificate, remediation certificate, environmental protection order or enforcement order, or (ii) the release of a substance into the environment; … (i) is being operated in contravention of this Act, …” [6]              Section 237(4) of EPA provides: “ Subject to the right to appeal a notice of administrative penalty to the Environmental Appeals Board, where a person fails to pay an administrative penalty in accordance with the notice of administrative penalty and the regulations, the Minister may file a copy of the notice of administrative penalty with the clerk of the Court of [NAME]'s Bench and, on being filed, the notice has the same force and effect and may be enforced as if it were a judgment of the Court.” [7]              See email dated December 5, 2024, from [NAME], [COMPANY] to [NAME] and [NAME], Environmental Law Section, [NAME]. [8]              [NAME] v [NAME] (Director of [NAME]), 2023 ABKB 435 . [9]              See the Board’s Letter to the Parties dated January 15, 2026. [10]             [NAME]’ Initial Submission at page1 and page 2. [11]             [NAME]’ Response Submission at page 1 and page 2, citing [NAME] at paragraph 32. [12]             [NAME]’ Response Submission at page 2. [13]             In submitting that the text of EPEA does not state that if an appellant does not specify a matter as a ground of appeal in a notice of appeal the [NAME] has directed the Board not to include that matter in the hearing of the appeal, [NAME] provided the Board a detailed review of sections 91(1)(n), 91(6), 92, 93, 95(1), (2), (3), (4) and (8) of EPEA, Section 5(1) of the Regulation, and Rule 5 of the Board’s Rules of Practice. The Board notes that [NAME] in their analysis did not identify any provisions in the legislation reviewed that specifically stated that if an appellant did not specify a matter as a ground of appeal in a notice of appeal, the [NAME] has directed the Board not to include that matter in the hearing of the appeal. ([NAME]’ Response Submission at page 2, page 3 and page 4.) [14]             Section 5(1) of the Regulation provides: “Notice of Appeal 5(1)         A notice of appeal submitted pursuant to section 91 of the Act shall contain the following: (a)                  the provisions of the Act under which the notice of appeal is submitted; (b)                 the name and title of the person whose decision is the subject of the notice of appeal and the details of the decision being appealed; (c)                  a description of the relief requested by the person appealing; (d)                 the signature of the person appealing, or the person’s lawyer or other agent; (e)                  an address for service for the person appealing. [15]             Section 95(8) of EPEA provides: “(8)         Subject to regulations, the Board may establish its own rules and procedures dealing with matters before it.” [16]             Rules of Practice at Rule 5. [17]             [NAME]’ Response Submission at page 4 and page 5. [18]             [NAME]’ Response Submission at page 4, citing [NAME] at paragraph 35. [19]             Section 92 of EPEA provides: “92.        Where the Board receives a notice of appeal, it may by written notice given to the person who submitted the notice of appeal require the submission of additional information specified in the written notice by the time specified in the written notice.” [20]             [NAME]’ Response Submission at page 5. [21]             [NAME]’ Response Submission at page 5, citing [COMPANY]., 2003 ABCA 98, at paragraph 43. [22]             [NAME]’ Response Submission at page 6. [23]             [NAME]’ Response Submission at page 8, citing Gordeyville and Area Community Members Group v. Director, Industrial Charges Unit, Public Land Disposition Management Section , [NAME], 2021 ABPLAB 24, at footnote 55. [24]             [NAME]’ Response Submission at page 7. [25]             Director’s Initial Submission at page 4 and page 5. [26]             Section 95(2) of EPEA. [27]             Director’s Initial Submission at page 2. [28]             Director’s Initial Submission at page 2, citing [NAME] at paragraph 13 and paragraph 14. The Board notes that regarding relief under the Canadian Charter of Rights and Freedoms, the Court stated in the last sentence of paragraph 13 of [NAME] , “that a factual foundation, or an alleged factual foundation , is an absolute requirement for pleadings that seek potential relief pursuant to the Canadian Charter of Rights and Freedoms . ” [Emphasis added by the Board.] The Board further notes that last sentence of paragraph 14 of [NAME] states “[i]nadequate pleadings abuse the Court’s process because a Respondent cannot defend against unclear and non-specific claims and the Court cannot control the proceedings, identify the proposed argument, or make findings on the relevant facts…” [Emphasis added by the Board.] [29]             Director’s Initial Submission at page 3, citing [NAME] at paragraph 16. The Board is of the view that the Director may have intended to cite paragraph 19, noting that paragraph 16 and paragraph 19 provide as follows: “[16] The Application provides only bald pleadings. What is the error “in law” in paragraph 1? The second and third paragraphs appear to relate to weighing evidence, not an error “in law”. … [19] The Application does not appear to satisfy the common law requirement that pleadings must provide the alleged “who, when, where, how and what” for the reviewing Court and Respondent.

I therefore conclude that the Application appears to be an abuse of the processes of the Court as it fails to provide an adequate basis for the Respondent to make a meaningful response or the Court to control the proceedings or make findings.” [30]             Director’s Initial Submissions at page 3. [31]             Director’s Initial Submissions at page 4. [32]             Director’s Initial Submission at page 4 and page 5. [33]             Director’s Response Submission at page 1. [34]             Preliminary Motions Decision: [NAME]   v.   Director, [NAME] , re:   [COMPANY] , 2018 ABEAB 12 at paragraph 108. See also section 95(2) of EPEA. [35]             [NAME]’ Notices of Appeal dated July 17, 2024, at page 3.