Claimant Must Prove Necessity of Environmental Protection Order

2026 ABEAB 13                                                                                 Appeal No. 23-053-055 – ID3 [NAME] BOARD Decision Date of Decision - June 19, 2026 IN THE MATTER OF sections 91, 92, and 95 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12; -and- IN THE MATTER OF an appeal filed by [COMPANY]., [NAME], and [NAME]. with respect to the decision of the Director, Regulatory Assurance Division South, [NAME], to issue [NAME] Protection Order No. EPO-[NAME]-40679 to [COMPANY]., [NAME] and [NAME]. Cite as:            Onus Decision: [COMPANY] et al v. Director, Regulatory Assurance Division South, [NAME] , 2026 ABEAB 13. BEFORE: [NAME], Board [NAME]. PARTIES: Appellant: [redacted] Director : [NAME], Director, Regulatory Assurance Division South, represented by [NAME], Environmental Law Section, [NAME]. Intervenor: [COMPANY]., represented by [NAME], [COMPANY]. EXECUTIVE SUMMARY This is the decision of the Environmental Appeals Board (the Board) regarding who should bear the onus in the appeals of Environmental Protection Order No. EPO-[NAME]-40679, as amended (the Order) regarding the decision of the Board in the preparation of its report and recommendations to the Minister, [NAME], in the appeals of the decision of the Director Regulatory Assurance Division South (the Director) to issue the Order. The Order was originally issued to [COMPANY]., [NAME], and [NAME]. with respect to remedial action to be taken to delineate and manage a historic release of tetrachloroethylene (the Substance) from drycleaning facilities previously located on lands legally described as Plan 1423LK, Block 47 and Plan 1423LK, Block 46 (the Lands). The Lands are located at 10 th Avenue SW in the [NAME]. It is believed the Substance has migrated to several properties in the vicinity of the Lands including lands owned by [COMPANY]. ([NAME]). [NAME] ([NAME]) has owned the Lands since 2009. [NAME] is the sole director for [NAME] and [COMPANY]. [COMPANY]., [NAME], and [NAME] ([NAME]) filed appeals with the Board of [NAME] decision to issue the Order. [NAME] applied for and was granted intervenor status in the appeals. [NAME] owns the property immediately to the east of the Lands. On September 30, 2024, the Order was amended, removing [COMPANY]. from the Order. The Board has scheduled a hearing of the appeals from June 23 to 25, 2026. On February 13, 2026, the Court of King’s Bench released its decision in [NAME] v [NAME] ([NAME]) , 2026 ABKB 98 ( [NAME] ), a judicial review of a Board decision arising from an unrelated appeal. In that decision, the Court found that the Board’s long-standing practice of placing onus on the appellant in the appeals before it was unreasonable because it was internally incoherent and was not based on a rationale chain of analysis. [ADDRESS] also found the reasons the Board provided in [NAME] on onus were not tethered to the statutory scheme and failed to engage with the guidance provided by the Court of Appeal in [COMPANY] v [NAME] Board, 2020 ABCA 456, regarding the appropriateness of an onus of proof given the nature of the Board’s polycentric environmental decision making under the Environmental Protection and Enhancement Act , RSA 2000, c E-12. As a result of the [NAME] decision, the Board requested [NAME], the Director and [NAME] to provide submissions on who should bear the onus of convincing the Board that the decision of the Director to issue the Order should be confirmed, reversed (cancelled), or varied (the Preliminary Motion). After considering the written submissions of [NAME],* the Director \ and [NAME] the Board decided [NAME] have the legal onus of convincing the Board that the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied. The Board also clarified that the hearing of the appeals of the Order was not a true de novo hearing where the Board considered the matter afresh but rather a hearing of the appeals of an existing Order where the Board could consider new information not previously before the Board. *              The Board notes [COMPANY]. did not provide submissions regarding the Preliminary Motion but has not withdrawn its Notice of Appeal. TABLE OF CONTENTS 1.      INTRODUCTION .. 6 2.

BACKGROUND .. 7 3.      The Appeals . 8 4.      ISSUE .. 15 5.      Submissions . 15 5.1.           [NAME] . 15 5.2.           Director 21 5.3.           [NAME] .. 29 5.4.           [NAME]’ Rebuttal 34 6.      ANALYSIS . 45 6.1.           Legislation and Caselaw .. 45 6.1.1.      Legislation . 45 6.2.           [NAME] Decision . 47 6.3.           Analysis and Findings. 55 7.

DECISION .. 74 1.                                          INTRODUCTION [ 1 ]                                        This is the decision of the Environmental Appeals Board (the Board) regarding the who should bear the onus in the appeals of Environmental Protection Order No. EPO-[NAME]-40679 as amended (the Order) regarding the decision of the Board in preparation of its report and recommendations to the Minister, [NAME], (the Minister) of the decision of the Director, Regulatory Assurance Division South (the Director) to issue the Order under section 113 of the Environmental Protection and Enhancement Act , RSA 2000, c E-12 ([NAME]) to issue the Order (the Preliminary Motion). [ 2 ]                                        The Order was originally issued on August 1, 2023, to [COMPANY]., [NAME], and [NAME]. with respect to remedial action to be taken to delineate and manage a historic release of tetrachloroethylene (the Substance) from drycleaning facilities previously located on lands described as Plan 1423LK, Block 47 and Plan 1423LK, Block 46 (the Lands). The Lands are located at 10 th Avenue SW in the [NAME]. It is believed the Substance has migrated to several properties in the vicinity of the Lands (the Off-Site Lands), including lands owned by [COMPANY]. ([NAME]). [ 3 ]                                        [NAME] ([NAME]) has owned the Lands since 2009. [NAME] is the sole director for [NAME] and [COMPANY]. [ 4 ]                                        [COMPANY]., [NAME], and [NAME] filed ([NAME]) appeals with the Board of [NAME] decision to issue the Order. [NAME] applied for and was granted intervenor status in the appeals. [NAME] owns the property immediately to the east of the Lands (the [NAME]). [ 5 ]                                        The Order was amended on December 19, 2023, September 30, 2024, and June 4, 2025. The September 30, 2024 amendment removed [COMPANY]. as a party to the Order. [ 6 ]                                        The Board scheduled a hearing of the appeals from June 23 to 25, 2026. [ 7 ]                                        On February 13, 2026, the Court of King’s Bench released its decision in [NAME] v [NAME] ([NAME]) , 2026 ABKB 98 ( [NAME] ), a judicial review of a Board decision arising from an unrelated appeal. In that decision, the Court found that the Board’s long-standing practice of placing the onus on the appellant in the appeals before it was unreasonable because it was internally incoherent and was not based on a rationale chain of analysis. [ADDRESS] also found the reasons the Board provided in [NAME] on onus were not tethered to the statutory scheme and failed to engage with the guidance provided by the Court of Appeal in [COMPANY] v [NAME] Board , 2020 ABCA 456 ( [NAME] ), regarding the appropriateness of onus given the nature of the Board’s polycentric environmental decision making under the [NAME] . [ 8 ]                                        As a result of the [NAME] decision, the Board requested [NAME], the Director and [NAME] (the Parties) [1] provide submissions on who should bear the onus of convincing the Board that the Order should be confirmed, reversed (cancelled) or varied. [ 9 ]                                        After considering the written submissions of the Parties, the Board found [NAME] had the legal onus of convincing the Board that the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied. The Board also clarified that hearing of the appeals of the Order was not a true de novo hearing where the Board considered the matter afresh but rather a hearing of the appeals of an existing Order where the Board could consider new information not previously before the Board. These are the reasons for that decision.

2.

BACKGROUND [ 10 ]                                    [NAME]’s purchase of the Lands in 2009, prior to the issuance of the Order, various remediation actions were undertaken at the Lands, and various reports were provided to [NAME] ([NAME]) by [NAME]’ environmental consultants regarding the Substance on the Lands and its migration to the Off-Site Lands, including the [NAME]. [ 11 ]                                    Despite the remedial actions taken by [NAME], the Director was of the opinion the remedial actions were not sufficient, and further work was required to delineate and manage the Substance. As a result, the Director issued the Order naming each of [NAME] as “persons [NAME]” under section 1(tt) of [NAME]. [2]

3.                                          The Appeals [ 12 ]                                    On August 4, 2023, [COMPANY]., [NAME], and [NAME] filed Notices of Appeal of [NAME] decision to issue the Order which were acknowledged by the Board on August 8, 2023. The Board also requested the Director provide a copy of the [NAME]. [ 13 ]                                    On September 29, 2023, the Director provided the Board with the [NAME], the receipt of which was subsequently acknowledged by the Board and a copy of the [NAME] was provided to the Parties. [ 14 ]                                    On December 19, 2023, the Director amended the Order by extending certain deadlines set out in the Order (Amendment No. 1). [ 15 ]                                    On January 25, 2024, the Board acknowledged receipt of the Order as amended and advised the Parties that Amendment No. 1 was not appealable but was part of the existing appeal. [ 16 ]                                    A mediation meeting was held by video conference on February 27, 2024. [NAME] and Director agreed [NAME]), [NAME] ([NAME]) and [COMPANY], all of which own property in the vicinity of the Lands, were permitted to attend the mediation meeting as observers. The mediation meeting did not result in an agreement, and the Board advised the Parties on February 28, 2024, that the Board would proceed to a hearing of the appeals. [ 17 ]                                    On June 12, 2024, the Board advised that a virtual hearing was scheduled for October 22 to 24, 2024 and proposed issues for the hearing. The Board requested comments from the Parties on the proposed issues. [ 18 ]                                    On June 13, 2024, [NAME] advised the Board that it wished to observe the hearing but would not be applying for intervenor status. [ 19 ]                                    On June 14, 2024, the Board provided the [NAME] a copy of the Notice of Hearing and requested it be placed on the [NAME]’s bulletin boards or website. [ 20 ]                                    On June 27, 2024, the Board received comments from the Director regarding the issues for the hearing. The Director also made a motion to exclude Amendment No. 1 from the hearing issues. [ 21 ]                                    On July 3, 2024, [NAME] made an application to intervene in the hearing (the [NAME] Application). The Board subsequently requested the Parties provide comments on the [NAME] Application but only received comments from [NAME]. No other applications to intervene were received by the Board. [ 22 ]                                    On July 9, 2024, the Board set the hearing issues as follows:

1.                   Was [NAME] decision to issue Environmental Protection Order No. EPO-[NAME]-40679 inappropriate? This includes, but is not limited to: a.                    Are the parties named in Environmental Protection Order No. EPO-[NAME]-40679 persons [NAME] for the substance under [NAME]? b.                   Is the current owner of a property that is subject to historical contamination a “[NAME] for the substance” under [NAME].

2.                   Are the terms and conditions of Environmental Protection Order No. EPO-[NAME]-40679 inappropriate? [ 23 ]                                    On July 9, 2024, the Director also made a motion regarding whether the Board can consider Amendment No. 1 when it hears the appeals (the Scope of Hearing Motion). The Board subsequently requested and received submissions from the Parties on the Scope of Hearing Motion. [ 24 ]                                    On August 23, 2024, the Board granted [NAME] intervenor status with the full rights of a party to provide a written submission and present opening comments, evidence, cross-examination and closing arguments at the hearing. Reasons for the Board’s decision were issued on May 29, 2026. [3] [ 25 ]                                    On September 4, 2024, the Board denied [NAME] of Hearing Motion and determined it had the jurisdiction to consider the amended Order at the hearing. Reasons for the Board’s decision were issued on May 29, 2026. [4] The Board also confirmed the issues for the hearing of the appeals were as set on July 9, 2024. [ 26 ]                                    On September 9, 2024, the Director requested the appeals be held in abeyance until January 31, 2025, because [NAME]’ consultant, [COMPANY]. (Equilibrium) had advised [NAME] intended to satisfy certain obligations under the Order and a hearing may not be needed in the appeals. [ 27 ]                                    On September 16, 2024, in response to a request by [NAME] for updates to the [NAME], the Director advised that it was premature to provide any updates to the [NAME] because of [NAME]’ commitments to satisfy certain obligations under the Order and a hearing might not be needed. [ 28 ]                                    On September 16, 2024, [NAME] advised they were of the view that it may be reasonable to delay the appeals, but such delay should be without prejudice to [NAME]’ rights to have the appeals heard on the merits and that the issue of whether each Appellant was a “[NAME]” remained a live issue to be determined regardless of whether the terms of the Order were satisfied. On September 16, 2024, [NAME] advised it supported [NAME] request to adjourn the hearing. [ 29 ]                                    On September 25, 2024, [NAME] provided their initial written submissions for the hearing ([NAME]’ Initial Hearing Submission). [ 30 ]                                    On September 30, 2024, the Director amended the Order to remove [COMPANY]. as a party to the Order, among other things. [ 31 ]                                    On October 8, 2024, the Board granted an adjournment of the hearing to January or February of 2025, depending on the availability of the Parties. Reasons for that decision were issued on May 29, 2026. [5] [ 32 ]                                    On October 9, 2024, the Director provided the supplemental information record (the Supplemental Information Record), receipt of which was acknowledged by the Board on November 7, 2024. The Board provided a copy to the Parties. [ 33 ]                                    On October 17, 2024, the Director provided her hearing response submission ([NAME] Hearing Submission). [ 34 ]                                    On October 17, 2024, [NAME] provided its hearing response submissions. [ 35 ]                                    On October 28, 2024, [NAME] provided their hearing rebuttal submissions ([NAME]’ Rebuttal Hearing Submission). [ 36 ]                                    On February 21, 2025, in response to a request by the Board, the Director provided an update with respect to [NAME]’ compliance with the Order and requested the hearing be held in abeyance until at least May 2, 2025, to facilitate [NAME]’s response to the risk management plan provided by [NAME] and a potential amendment of the Order. The Board acknowledged [NAME] update on February 24, 2025, and requested comments from the other Parties. [ 37 ]                                    On March 3, 2025, [NAME] responded to the Board’s letter of February 24, 2025, and requested the Board set a date for the hearing of the appeals. [NAME] stated an unreasonable delay in hearing the appeals violated the principles of natural justice and [NAME]’ rights to procedural fairness. [ 38 ]                                    On March 3, 2025, [NAME] advised it supported [NAME] request to hold the appeals in abeyance until at least May 2, 2025. [ 39 ]                                    On June 5, 2025, the Director amended the Order requiring [NAME] to submit an updated risk management plan to manage the risk of the Substance at additional properties in the vicinity of the Lands, among other things. [6] [ 40 ]                                    On December 15, 2025, the Board requested the Parties provide available dates for a hearing in June and July of 2026 as well as an update on discussions between [NAME] and [NAME]. [ 41 ]                                    On December 19, 2025, [NAME] advised there were no substantive discussions between [NAME] and the Director. [ 42 ]                                    On January 16, 2026, the Director provided an update on discussions between the Director and [NAME] including, among other things, [NAME]’ response to certain requests by the Director. [ 43 ]                                    On February 23, 2026, the Board scheduled the hearing for June 23 to 25, 2026. [ 44 ]                                    On March 4, 2026, the Board provided the Parties and [NAME] a copy of the decision of the Court of King’s Bench in [NAME] . The Board referred the Parties to paragraphs 108 to 163 of [NAME] and requested the Parties provide submissions on the question of who should bear the onus of convincing the Board that the Order appealed should be confirmed, reversed (cancelled) or varied (the Onus Issue). The Board set a process to receive submissions. [ 45 ]                                    On April 7, 2026, the Board received submissions from [NAME] regarding the Onus Issue ([NAME]’ Initial Submission). [ 46 ]                                    On March 27, 2026, the Board received submissions from [NAME] regarding the Onus Issue (the Intervenor’s Response Submission). [ 47 ]                                    On March 27, 2026, the Board received submissions from the Director regarding the Onus Issue ([NAME]). [ 48 ]                                    On April 7, 2026, the Board received rebuttal submissions from [NAME] regarding the Onus Issue ([NAME]’ Rebuttal Submission). [ 49 ]                                    On May 11, 2026, [NAME] made a motion for the Board to issue a subpoena to [NAME] to produce two letters and their authors at the hearing of the appeals (the Document Production Motion). On May 11, 2026, the Board acknowledged receipt of the Document Production Motion and requested and subsequently received submissions from the Parties. [ 50 ]                                    On May 26, 2026, the Board granted the Document Production Motion in part. [7] As the letters requested were in the public domain it was unnecessary for the Board to issue a subpoena for their production. However, the Board directed [NAME] to produce the authors of the letters as witnesses at the hearing and subsequently issued subpoenas for their appearance. [ 51 ]                                    On May 26, 2026, in the interest of promoting efficiency and ensuring a clear and transparent evidentiary record, the Board proposed a process for the Parties to prepare an agreed upon factual summary and an exhibit list of all Pre-filed Documents upon which the Parties wished to rely on at the hearing (the Pre-filed Documents). [ 52 ]                                    On May 27, 2026, the Board requested the Director confirm there were three amendments to the Order, to provide all the policies and legislation the Director relied upon in making his decision to issue the Order, and to provide [NAME]’s current policy on contaminated properties and policies in place at the time the Order was granted. [ 53 ]                                    On May 28, 2026, the Board issued subpoenas to the authors of the two letters that were the subject of the Document Production Motion. [ 54 ]                                    On May 29, 2026, the Board extended the time for [NAME] to provide the Pre-filed Documents. Concurrently, the Board issued its reasons for its decision regarding the [NAME] and the Board’s decision regarding the issue for the hearing, including whether the Board would consider the amendments to the Order at the hearing of the appeals. The Board acknowledged the Parties had provided submissions with respect to Issue No. 1 but not Issue No.2 for the hearing. [8] The Board requested the Parties confirm that in the absence of submissions on Issue No. 2, the Parties would not raise or argue matters arising from Issue No. 2 at the hearing of the appeals. [ 55 ]                                    On June 1, 2026, the Director advised that [NAME], Environmental Law Team, [NAME], would be representing the two subpoenaed witnesses and requested the Board advise, among other things whether the witnesses were to attend as independent witnesses and if so, would the Board be conducting the questioning. Concurrently, [NAME] advised they were not pursuing an appeal of the terms and conditions of the Order (Issue No. 2) but, if the Board finds [NAME] are “persons [NAME],” reserved the right to challenge either in these appeals or in a separate appeal, any further terms added to the Order by amendment. [ 56 ]                                    June 2, 2026, the Director provided a supplemental [NAME] and confirmed there were three amendments to the Order. [ 57 ]                                    On June 3, 2026, [NAME], the Director and [NAME] each filed their list of exhibits they respectively intended to rely on at the hearing. Concurrently, [NAME] notified the Board they would also be referencing at the hearing of the appeals, the two letters that were the subject of the Document Production Motion. [ 58 ]                                    On June 4, 2026, [NAME] filed an Agreed Factual Summary with the Board in preparation for the hearing. On the same day, [NAME] wrote to the Board requesting the Board advise, among other things, when it would issue its onus decision and that [NAME] be permitted to submit its supplemental written submissions five days after receipt of the onus decision. [NAME] further proposed that the Parties rely on their existing statements of facts rather than the Agreed Factual Summary so that they use the time to prepare for the hearing. [ 59 ]                                    On June 9, 2026, the Parties filed supplemental written submissions in preparation for the hearing which were acknowledged by the Board on June 10, 2026. [ 60 ]                                    On June 10, 2026, the Board acknowledged receipt of the Agreed Factual Summary from [NAME] on June 4, 2026, and [NAME]’s letter of the same date, noting [NAME]’s concern regarding completion of an Agreed Factual Summary and stating responses were not mandatory should a party choose not to submit a factual summary. [ 61 ]                                    On June 11, 2026, the Director advised the Director would rely of the summary of facts set out in [NAME] supplemental hearing submissions filed on June 9, 2026. Concurrently, [NAME] filed with the Board a revised version of the Agreed Factual Summary provided by [NAME] on June 4, 2026. The Board set a process to receive comments from the Parties. [ 62 ]                                    On June 12, 2026, the Board advised it would pay the witnesses conduct money in the amount of $150.00 each (3 days x $50.00) and the standard government rate for expenses actually incurred. The Board also stated it would provide further correspondence regarding the scope of the witnesses’ participation. [ 63 ]                                    On June 12, 2026, the Board issued its decision regarding the Onus Motion. The Board found the onus is on [NAME] to provide sufficient, reliable and relevant evidence which proves on the balance of probabilities that the Order should be confirmed, reversed (cancelled), or varied. The Board stated it would issue its reasons prior to the hearing of the appeals. These are the reasons for that decision.

4.                                          ISSUE [ 64 ]                                    The issue before the Board is who bears the onus of persuading the Board the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied.

5.                                          Submissions 5.1.                                     [NAME] [ 65 ]                                    [NAME] submitted the statutory scheme determines the nature of an appeal of an environmental protection order (EPO). [NAME] further submitted the circumstances of these appeals require the Board to conduct a true de novo appeal of the Order with no deference to [NAME] decision to issue the Order. [NAME] argued therefore, the onus was on the Director to establish that the Director was correct in holding that each of [NAME] are a “[NAME]” under [NAME]. [9] [ 66 ]                                    [NAME] submitted the Court of King’s Bench decision in [NAME] held that the Board’s reasoning in prior decisions which placed the onus on [NAME] in all appeals was flawed and must be revisited. [10] [NAME] further submitted [NAME] held the nature of the appeal that the Board is required to conduct is primarily determined by the statutory language which gives rise to the appeal. [NAME] argued where the statutory language allows the Board to make any decision the Director could have made, the Board must undertake a true hearing de novo without any deference to [NAME] decision. [11] [NAME] argued the Board must determine “[w]hat is the right decision?” rather than merely checking if [NAME] decision was right. [12] [ 67 ]                                    [NAME] acknowledged [NAME] contained several paragraphs distinguishing appeals of approvals issued under the Water Act, RSA 2000, W-3 (the Water Act ) from EPO appeals but argued the Court in [NAME] only did so for the purposes of making clear that it was not bound by the decision of the Court of King’s Bench in [COMPANY] v [NAME] (Minister of Environment) , 2003 ABQB 388 ( [NAME]) . [13] [NAME] noted that while [NAME] did suggest the Board may want to undertake an analysis similar to the one undertaken in [COMPANY]. and [COMPANY] v Director, Enforcement and Monitoring, Bow Region, Regional Services, [NAME], re: [COMPANY]. , 2002 ABEAB 23 ( [NAME] ), the Court did not adopt or endorse the conclusion from [NAME] or [NAME] (the [NAME]) with respect to onus in EPO appeals. [NAME] noted that in [NAME] , the Court highlighted that the Court of King’s Bench in [NAME] reasons regarding the issue of onus were limited to issues of natural justice and further that the Court had also mistakenly stated that the Board did not have the power to substitute its own decision for the decision of the Director. [14] [NAME] submitted for that reason the Court in [NAME] held that the question of who bears the onus on an appeal before the Board should be determined not only by the type of appeal, but also by “the particular circumstances of each case.” [15] [ 68 ]                                    [NAME] submitted the Board’s analysis in [NAME] was distinguishable from this case as it focused on the differences between two appeal processes, that of the Board and that of the Grape Marketing Board which was the subject of a decision of the BC Supreme Court relied upon by [NAME] to argue that onus should be on the administrative decision-maker in an appeal of an administrative decision. [16] [NAME] argued the Board should have instead considered its home legislation giving rise to the EPO under appeal and the circumstances of the EPO appeal before it, as directed by the Court in [NAME] . [NAME] noted the analysis in [NAME] also contained a material error of law in paragraph 59, where the Board purported to undertake a de novo review and apply a correctness standard but then stated the Board affords “the Director some deference as a practical matter” and “defers to the Director in policy matters.” [NAME] argued these statements demonstrated the Board was neither conducting a true de novo appeal, nor applying a true correctness standard. [17] [ 69 ]                                    [NAME] submitted the reasoning in [NAME] failed to give the proper weight to the language of section 98(2) of [NAME], [18] which allows the Board to replace [NAME] decision with any other decision the Director could have made. [NAME] argued [NAME] noted this type of statutory language indicated the requirement to conduct a true de novo appeal where the correctness of the EPO under appeal must be established afresh by the Director. [NAME] further argued that despite the Court in [NAME] stating that EPO appeals might be distinguishable from an appeal of a Water Act approval, the language of section 98(2) of [NAME] favours a true de novo appeal as much for an EPO appeal as it does for an appeal of a Water Act approval. [19] [ 70 ]                                    [NAME] noted that in [NAME] , the Board held that the change in parties from the time of [NAME] decision to the hearing of the appeal, [NAME] role in the appeal process, and the requirement to consider evidence that was not available to the Director were all factors that favoured placing the onus on the appellant. [20] [NAME] noted however, the Court in [NAME] identified these same reasons as reason to place the onus on the Director. [NAME] argued the decision in [NAME] indicated the Board in [NAME] should have concluded these factors were supportive of a true de novo appeal where the director had the onus of demonstrating to the Board that the director was correct in issuing the EPO. [21] [ 71 ]                                    [NAME] also noted that without any evidence, the Board in [NAME] concluded the “appeal process would be obstructed” by requiring the Director to justify [NAME] decision. [NAME] argued however, there was no reason to believe that placing the onus on the Director to justify the use of state power on private parties would obstruct the appeal process noting that a director is sometimes required to issue EPOs with incomplete information which weighs in favour of requiring the Director to justify its decision in the face of new information. [NAME] submitted it was not contrary to the scheme of [NAME] to require the onus be placed on the Director to justify the exercise of state power on a private party who did not receive a hearing of first instance and does not put any additional burden on the Director because prior to the hearing the Director is required to submit the [NAME] which would include all evidence supporting [NAME] decision to issue the EPO. [NAME] noted appeals would only become more onerous for the Director in situations where the Director had issued an EPO without any evidentiary basis. [22] [ 72 ]                                    [NAME] submitted while the statutory scheme and nature of an EPO appeal militate in favour of a true de novo appeal , [NAME] also requires the Board to consider the issues, the circumstances, and the parties before the Board in determining which party will bear the initial onus. In this case, [NAME] argued that: 1.                   the threshold nature of the issue under appeal; 2.                   the absence of any formal hearing at first instance; and 3.                   the absence of any reasons from the Director explaining its decision on the threshold issue under appeal, strongly favoured a true de novo appeal where the onus is on the Director. [23] [ 73 ]                                    [NAME] argued that in the appeals presently before the Board, the sole issue before the Board is whether [NAME] is a “[NAME]” for a substance as defined by [NAME]. [NAME] submitted in lieu of a hearing at first instance, the Director met briefly with [NAME] to read aloud the Order but did not consider [NAME]’ position regarding their status as a “[NAME]” and provided no explanation for why [NAME] were being treated as a “[NAME].” [24] [ 74 ]                                    [NAME] also argued they had no way of determining how the Director concluded [NAME] was a “[NAME]” as the Order provided no supporting reasoning but only stated in the recitals that [NAME] was the registered owner of the Lands and was a “[NAME].” [NAME] noted the Board had previously found that being the registered owner of the Lands was not sufficient to make [NAME] a “[NAME].” [25] [NAME] further submitted they were not made aware of [NAME] reasoning until they received [NAME] Hearing Submission and they were left guessing at [NAME] reasons and what evidence they might have to adduce to address the errors they thought might exist in those unknown reasons. [NAME] asserted it was unfair to put the onus on [NAME] to prove a negative and identify an error in [NAME] undisclosed reasoning. [26] [ 75 ]                                    [NAME] argued it was appropriate for the Board to undertake a true de novo hearing and determine whether [NAME] met the definition of a “[NAME]” and that a de novo hearing would be more in keeping with both the common law principle of “he who asserts must prove” because proving a negative is “next to impossible.” [27] [NAME] further asserted this was consistent with the Board’s Rules of Practice (November 2024) (the Rules of Practice) at Rule 29 [28] which similarly places the burden on all parties to introduce “appropriate evidence to support its position.” [29] [ 76 ]                                    [NAME] argued in a de novo hearing, the onus would be on the Director to adduce sufficient evidence to establish that [NAME] meets the legal definition of a “[NAME]” and it was not onerous to place the onus on the Director as the Director is the party positively asserting that [NAME] has done “something more” than being the registered owner of the Lands to become a “[NAME].” [NAME] argued the Director should establish its prima facie case by disclosing the evidence in the [NAME] that supported intelligible recitals in the EPO under appeal. [30] [ 77 ]                                    [NAME] argued public trust would be undermined if the government could, without any evidentiary support or legal foundation, place the onus on a party to prove a negative, that they are not a “[NAME]” for contamination, as it originally did when the Director issued the Order to [COMPANY]. [NAME] stated the more reasonable and fair approach would be for the Director to adduce evidence and argument to establish a prima facie case that her decision to label a party a “[NAME]” was correct which in most cases could be done by disclosing the record on which the decision was made and through clear recitals in the Order. [31] [ 78 ]                                    [NAME] further noted that like [NAME] , the following factors also favour the Board conducting a de novo hearing in which the onus should be on the Director to adduce sufficient evidence to support the conclusion that each of [NAME] meets the legislated definition of “[NAME]”: 1.                   the parties are not the same as when the Director issued the Order as [NAME] has been added as an intervenor and [COMPANY]. has been removed; 2.                   the Director is acting as a zealous advocate in defending its own decision before the Board; and 3.                   the hearing was delayed at the request of the Director and [NAME] to permit for the gathering of additional evidence that was not before the Director when the Order was made. [32] [ 79 ]                                    [NAME] submitted the issue of onus in EPO appeals is of limited practical consequence when the Board undertakes a true correctness review of [NAME] decision on the full record before the Board. [NAME] further submitted the issue of [NAME] onus would only arise in situations where the [NAME] contained no evidence to support [NAME] decision to issue an EPO or the environmental protection officer or the director had clearly acted without legal authority. [NAME] submitted that once a director could identify some evidence to support its decision, the Board must determine whether the evidence before the Board gave the director the legal authority to issue the EPO. [33] [ 80 ]                                    [NAME] argued in the present case, the onus is on the Director to demonstrate that [NAME] are each a “[NAME]” under [NAME] by providing evidence that each of [NAME] meet the statutory definition of “[NAME]” as it has been interpreted by the Board. [34] [NAME] submitted that once the Director has provided such evidence, [NAME] can be successful in their appeal by either tendering evidence to negate the evidence relied on by the Director or by demonstrating through argument that the issuance of the Order under the circumstances is legally “invalid on its face or otherwise unsupported by the [NAME].” [35] 5.2.                                     Director [ 81 ]                                    The Director submitted in applying the Board’s approach to the burden of proof in [NAME] have the onus to: 1.                   prove [NAME] decision to issue the Order was inappropriate; and 2.                   persuade the Board to recommend to the Minister that the Order should be varied and exactly how, or reversed. [36] [ 82 ]                                    The Director submitted the Supreme Court of Canada held in [COMPANY] v [NAME] , 2008 SCC 40, [2008] 2 SCR 420 ( [NAME] ) that “the ordinary principles of litigation put the burden of proof on the party making the assertion.” [37] The Director noted the Federal Court of Appeal relied on [NAME] and found that in an administrative law context the normal evidentiary burden applies being “the party that asserts must prove.” [38] [ 83 ]                                    The Director submitted the Board in [NAME] et al v Director Regional Approvals, Regulatory Assurance Division – South, [NAME], re: Town of Blackfalds , 2023 ABEAB 19 ( [NAME]) reaffirmed the appellant bears the onus and cannot discharge that onus through speculative allegations, as doing so would effectively reverse the onus of proof by requiring a director to disprove them. The Director argued that although [NAME] involved an appeal of an approval, the principles applied equally to [NAME]’ appeal of the Order. [39] [ 84 ]                                    The Director asserted that applying the Supreme Court of Canada’s decision in [NAME] to this appeal, [NAME] bear the onus of proving each assertion and claim made in their respective Notices of Appeal. In [NAME]’ Notices of Appeal, the Director noted [NAME] had asserted, among other things, that: •                      “none of the parties to whom it was issued are a ‘[NAME];’” •                      the Order was issued “without legislative authority and is ultra vires;” •                      the Order was issued with “a lack of procedural fairness and a violation of the principles of fundamental justice;” •                      the parties are each a “victim of historical pollution;” and •                      the Order “inappropriately uses the threat of penalties.” [40] [ 85 ]                                    Further, the Director noted [NAME] requested in their Notices of Appeal, that: •                      a decision from the Board “vacating” the Order in “its entirety” or in the alternative, varied; and •                      a costs award against the Director alleging the “Director’s flagrant disregard for the limits of [NAME] statutory authority”. [41] [ 86 ]                                    The Director argued that applying [NAME] and [NAME] , for the Board to recommend to the Minister that [NAME] decision to issue the Order should be varied and exactly how, or reversed, [NAME] have the onus in this hearing to prove on a balance of probabilities and based on “sufficient, reliable and relevant evidence” that: 1.                   the facts as they present them are correct, 2.                   that the Director made the error(s) alleged, and 3.                   each of their assertions and claims in the Notices of Appeal on which they rely to prove the ultimate issue in this appeal that [NAME] decision to issue the Order was inappropriate have been established. [42] [ 87 ]                                    The Director submitted the Court in [NAME] found that the Board’s approach to assigning the burden of proof in an EPO appeal was still good law and that the Board’s approach to placing the onus on [NAME] in [NAME] was upheld on judicial review in [NAME] which was not appealed. [43] [ 88 ]                                    The Director argued [NAME] was determinative of the Board’s approach to onus in this appeal because: 1.                   [NAME]’ access to information was equal to (or greater than) the Director; [44] 2.                   it upheld the integrity of the appeal process; [45] 3.                   there was no screening of the statutory right to appeal an EPO; [46] 4.                   the Director was an impartial decision-maker; [47] 5.                   it would be unfair and would prejudice the Director to shift the onus to the Director at this late stage in the appeal when [NAME] have already benefited from having the onus throughout the three-year appeal; [48] 6.                   [NAME] had the opportunity to be heard before the Order was issued; [49] 7.                   the Director had an investigative role and is gathering information; [50] and 8.                   there were adverse interests before the Board. [51] [NAME] to Information is equal to or greater than the Director. [ 89 ]                                    The Director submitted that an appellant who received an EPO had or can obtain access to the same information about the environmental situation as the decision-maker. The Director argued the Court in [NAME] identified “information symmetry” as a key principle for determining who bears the onus in an appeal and in the case of an appeal of an EPO where information symmetry exists, the Court stated it “made sense for the appellant to bear the onus for proving that [NAME] decision was not correct.” [52] [ 90 ]                                    The Director submitted that if any information asymmetry exists in this appeal, it operates in [NAME]’ favour as [NAME] had equal or greater access than the Director to information about the environmental condition of the Lands because: 1.                   [NAME] purchased the Lands in March 2009 [53] and as commercial property developers, either conducted or ought to have conducted pre-purchase environmental due diligence, including obtaining disclosure of the environmental reports dated on or before the purchase date; 2.                   [NAME] indicated in [NAME]’ Initial Hearing Submission that [NAME] would admit he knew the Lands were contaminated when they purchased them; [54] and 3.                   since purchasing the Lands, [NAME] have retained one or more environmental consultants who possess first-hand knowledge of the environmental condition of the Lands and conducted numerous investigations documented in the reports provided to the Director. Upholds the Integrity of the Board’s Appeal Process. [ 91 ]                                    The Director submitted that if [NAME] could require that a decision-maker under [NAME] justify a decision before an appellant made a prima facie case, the appeal process would be obstructed, and the system would become unworkable. [55] Statutory Right to Appeal with no Screening [ 92 ]                                    The Director noted each of [NAME] in this appeal have a statutory right of appeal under section 91 of [NAME]. The Director submitted the Court in [NAME] held that because EPO appeals of have no screening mechanism, the onus must fall of the appellant to demonstrate error. [56] The Director is an Impartial Decision-Maker. [ 93 ]                                    The Director argued like the decision-maker in [NAME], the Director is designated by the Minister to act for the purposes of [NAME] and therefore has no personal interest in issuing the Order. [57] Unfairness and Prejudice to the Director because [NAME] have already had the benefit of the onus. [ 94 ]                                    The Director argued like the circumstances in [NAME], where the Board found it “extremely unfair” to shift the burden of proof to the Director where the procedure already followed in the appeal had given [NAME] a procedural advantage , it would be unfair and prejudicial to the Director for the Board to shift onus to the Director at this late stage when [NAME] have already benefited from the procedural advantages of bearing the onus throughout the three-year appeal, such as the opportunity to present their case first and providing rebuttal both in this Preliminary Motion and at the oral hearing. The Director noted the Court in [NAME] agreed and held that once the Board determines onus, it must apply its decision consistently throughout the appeal. [58] Opportunity to be Heard before the Order was issued. [ 95 ]                                    The Director submitted [NAME] had an opportunity to be heard before the Order was issued. The Director further submitted [NAME] had the opportunity to voice their concerns and provide any documents [NAME] wished the Director to consider before the decision to issue the Order was made. [59] The Director stated she had provided [NAME] a draft of the Order on July 27, 2023, and offered [NAME] an opportunity to meet. The Director noted she had received a written objection to the draft Order from [NAME] [60] and held a meeting with [NAME] on August 1, 2023, the purpose of which was for [NAME] to provide any additional information that the Director might not have to help inform the final decision, to understand the Order and its implications, to be heard, and to ask questions, among other things. [61] The Director stated [NAME] raised their objections and she was satisfied that she had all the information necessary to make a decision and issued the Order on August 1, 2023. [62] Director’s Investigative Role and Information Gathering. [ 96 ]                                    The Director submitted the Director often does not have all the facts required to make a decision, so she exercises her investigative powers and requests information from [NAME] before making the decision. [63] Adverse Interests before the Board. [ 97 ]                                    The Director noted the Board receives hearing submissions from the same two parties who are adverse in interest. [64] [ 98 ]                                    The Board notes the Director provided “limited response” to [NAME]’ Initial Submission which are summarized below. [ 99 ]                                    With respect to [NAME]’ assertion that the Director was acting as a zealous advocate in the appeals, the Director submitted [NAME] have not established how [NAME] statutory role under [NAME] is a relevant factor in the context of the appeals when the Board assigns the burden. The Director noted [NAME] relied on paragraph 156 and paragraph 157 of [NAME] but that these paragraphs do not make any reference to [NAME] statutory role in an EPO appeal. The Director further noted the Director was automatically a party to every appeal of a decision that is the subject of a notice of appeal, [65] and the Director has the right to make written submissions, an opening statement at an oral hearing, question and cross examine witnesses of other parties adverse in interest, make closing remarks at an oral hearing and make an application for an award of costs. [66] [ 100 ]                                In response to [NAME]’ comments that the change in parties was a factor that favoured placing the onus on the Director (citing paragraph 53 of [NAME] in support) , the Director disagreed. The Director argued the Board’s point in [NAME] at paragraph 53 was to distinguish EPO appeals, which generally involve only two parties who are adverse in interest, from approval appeals that may involve multiple participants representing a broad range of public, private and community interests. [67] [ 101 ]                                In response to [NAME]’ comments about the “addition of new parties” [68] and [NAME]’ statement that “the parties are not the same…” [69] as a reason to place the onus on the Director, the Director argued paragraphs 156 and 157 of [NAME] do not assist [NAME] in support of their position as [NAME] have not established how the addition of an intervenor and the cancellation of the Order against one Appellant were relevant factors when the Board assigns the burden of proof in this appeal. [70] [ 102 ]                                In response to [NAME]’ comments about the Director meeting briefly with [NAME] to read the Order to them aloud in lieu of a “hearing of first instance” and that the Director did not consider their position regarding their status as a “[NAME],” the Director argued [NAME] have not established how holding a “hearing of first instance,” which is not required by [NAME], was a relevant factor in assigning the burden of proof in this appeal. The Director further argued any duty of procedural fairness owed to [NAME] before issuing the Order was satisfied when: 1.                   the Director sent a copy of the draft Order to [NAME] on July 23, 2023, and invited [NAME] to meet to give [NAME] an opportunity to discuss the draft Order; [71] and 2.                   the Director met with [NAME] on August 1, 2023, to determine what happened in the past and any current activities on the Lands, to help inform her final decision, and to give [NAME] an opportunity to provide any additional information that she might not have, to be heard and understood, and to ask questions. [72] [ 103 ]                                The Director noted [NAME] in their initial submission made allegations regarding the delay of the hearing at the request of the Director and [NAME] [73] but have not provided any particulars of the alleged delay. The Director submitted the only thing to which [NAME] could be referring to might be the February 21, 2025 request that “… the hearing continue to be held in abeyance to at least Friday May 2, 2025 to facilitate [NAME]’s response to [NAME]’ plan, any further communications needed, and amending the EPO.” [74] The Director argued [NAME] have not established how [NAME] request to obtain additional technical information to help inform the hearing in this matter was a relevant factor in the Board’s assignment of the burden of proof in this appeal. [75] [ 104 ]                                In response to [NAME]’ comments that the first time [NAME] were made aware of [NAME] reasoning was in [NAME] Hearing Submission, [76] the Director submitted [NAME] had a full opportunity to “adduce evidence” in response to [NAME] Hearing Submission but did not do so. The Director argued [NAME] have not established how their missed opportunity to adduce evidence in response to [NAME] Hearing Submission was a relevant factor in the Board’s assignment of the burden of proof in this appeal. [77] 5.3.                                     [NAME] [ 105 ]                                [NAME] submitted the onus is on [NAME] to establish they are not “persons [NAME]”. [78] [ 106 ]                                [NAME] submitted there was no reason for the Board to derogate from the Board’s decision in [NAME] which established that the onus is on [NAME] in EPO appeals to establish they are not “persons [NAME]”. [NAME] submitted the reasons for the [NAME] decision apply equally to the current case as the matters currently before the Board are highly analogous to those in [NAME] . [NAME] asserted the Court’s decision in [NAME] did not change the Court’s decision in [NAME] nor did it create a new standard for all appeals before the Board. Instead, [NAME] argued it clarified that the standard applicable in the context of an EPO appeal with respect to onus is not necessarily appropriate for other types of appeals. [79] [ 107 ]                                [NAME] provided the Board submissions regarding the effect of the [NAME] decision. [NAME] noted it was the Board’s decision in [NAME] v Director, South Saskatchewan Region, Operations Division, [NAME], re: [NAME] , 2024 ABEAB 7 ( [NAME] ) that was under judicial review by the Court of King’s Bench in [NAME] , which was an appeal of the decision of the director to grant approval to [NAME]. ([NAME].) to conduct certain activities pursuant to the Water Act. [NAME] noted the Board varied but did not reverse the approval. [NAME] further noted [NAME] in [NAME] sought judicial review of the Board’s decision on several grounds, including the Board’s decision to impose the onus on [NAME]. [80] [NAME] submitted that upon judicial review, the Board argued [NAME] had determined the onus falls on the party appealing the decision of the Director. [81] [ 108 ]                                [NAME] submitted the present appeals before the Board are like those before the Board in [NAME] as both pertain to a recipient of an EPO seeking to have the EPO cancelled. [82] [NAME] further submitted the situation in [NAME] was not like the appeals before the Board because [NAME] related to the appeals of an approval. [NAME] submitted the Court in [NAME] found [NAME] was distinguishable and not determinative of [NAME] because: 1.                   [NAME] was decided on the narrow issue of whether imposing the onus on the recipient of an environment protection order who appeals the environmental protection order was a breach of natural justice; [83] 2.                   the facts of [NAME] were distinguishable because the information available to the recipient of an EPO is fundamentally different than that available to [NAME] in [NAME] ; and 3.                   the concerns about the integrity of the [NAME] appeal process were not the same. [84] [ 109 ]                                [NAME] submitted [NAME] had asserted [NAME] stands for the principle that the Board’s reasoning in prior decisions placing the onus on [NAME] in all appeals was flawed and must be revisited. [NAME] disagreed and argued that [NAME] did not create a new paradigm to be applied to all situations. Instead, [NAME] submitted the Court in [NAME] held that the specific circumstances in [NAME] were distinguishable from those in [NAME] , largely because [NAME] was not dealing with an appeal of an EPO. [85] [ 110 ]                                [NAME] submitted the Board in [NAME] noted a recipient of an EPO has or can obtain the same environmental information as a director so there is information symmetry and noted that in [NAME] , the Court found in such situations it made sense [NAME] in [NAME] bore the onus. [NAME] also noted that [NAME] stated that “while that information symmetry may be the case where the appellant is the recipient of the EPO, that is not the case where the appellant is a person that is ‘directly affected’”, as was the case in [NAME]. [86] [ 111 ]                                In [NAME] noted the Board was concerned about a “floodgate” scenario such that if the Director was required to justify every EPO a second time, the integrity of the [NAME] process would be compromised. [87] [NAME] submitted the Court in [NAME] found the Board’s concerns about the integrity of the [NAME] process were less pressing in an approval appeal than in an EPO appeal because an appellant has a statutory right of appeal with respect to an EPO, without any prior screening, whereas [NAME] such as those in [NAME] must first establish they are directly affected by [NAME] decision before the Board will hear the appeal on the merits, which narrows the pool of [NAME]. [88] [ 112 ]                                [NAME] argued that the Court in [NAME] implicitly affirmed the decision in [NAME]. [NAME] submitted that if the Court in [NAME] was truly of the opinion that [NAME] was “flawed” and needed to be revisited, there would have been no reason for the Court to have based its decision on onus squarely on distinguishing the facts in [NAME] from those in [NAME] . [89] [ 113 ]                                [NAME] argued there were good reasons why the onus should be placed on an appellant in an EPO appeal, as outlined in [NAME] and [NAME] , and those reasons apply equally to the current case because like [NAME] : 1.                   [NAME] are recipients of an EPO; 2.                   the issue is whether [NAME] can be considered “persons [NAME]” under [NAME]; 3.                   [NAME] have equal or greater information than the Director regarding the environmental situation, given they had to conduct testing across the Lands, including their own property, have filed site condition reports, and participated in documented risk mitigation measures over the years, amongst other things. [90] [NAME] noted the Order was issued based on [NAME] own testing reports after [NAME] unilaterally abandoned their remediation program of pumping and treating contaminated ground water and after multiple letters were sent to [NAME] that [NAME] take steps to monitor and delineate the contamination; [91] and 4.                   the same concerns as in [NAME] apply regarding the integrity of the [NAME] process given the same statutory right of appeal is at play. [92] [ 114 ]                                [NAME] further argued the onus being on [NAME] in the context of an appeal of an EPO was reasonable given the element of strict liability involved in statutory environmental claims under [NAME]. [NAME] noted that section of 112 of [NAME] provides: “[w]here a substance that may cause, is causing or has caused an adverse effect is released into the environment, the [NAME] for the substance shall , as soon as that person becomes aware of or ought to have become aware of the release” take certain actions to resolve the situation. [93] [ 115 ]                               [NAME] submitted the Director under section 112 of [NAME] [94] need only be satisfied there was a substance released into the environment and the parties named in the Order fall within the enumerated list of “persons [NAME]” at section 1(tt) of [NAME], which includes , inter alia , “the owner and a [NAME] of the substance or thing” and “every person who has or has had charge, management or control of the substance or thing.” [95] [ 116 ]                                With respect to [NAME]’ argument that it was unfair to place the onus on [NAME] when the Director provided no reasoning to support [NAME] being “persons [NAME],” [NAME] stated it should be no surprise to [NAME] that they have been named as persons [NAME], given [NAME], with [NAME] as its sole director, was not only the registered owner of the Lands where the Substance was emanating from, but [NAME] also had “charge, management and control” of the contamination. [NAME] further argued [NAME] took extensive steps to monitor, delineate, treat, handle, remediate, and dispose of the contamination, including installing groundwater monitoring wells, analyzing groundwater samples, installing soil gas probes, conducting indoor air sampling, pumping and treating large volumes of contaminated groundwater, and installing a soil vapour extraction system in an effort to remove the contamination. [96] [ 117 ]                                [NAME] asserted the activities undertaken by [NAME] were the exact type of activities contemplated by the Board in [NAME] as causing an owner to become a “[NAME].” [NAME] submitted there was no unfairness in placing the onus on [NAME] to establish they are not “persons [NAME].” [97] [ 118 ]                                [NAME] noted [NAME] argued there were three other factors in common between this case and [NAME] : 1.                   the parties were not the same parties as when the Director issued the Order; 2.                   the Director was acting as a zealous advocate in defending its own decision; and 3.                   the hearing was delayed at the request of the Director and [NAME] to permit the gathering of additional evidence that was not before the Director when the Order was issued. [ 119 ]                                [NAME] stated none of these assertions were accurate because: 1.                   information asymmetry was created in [NAME] because [NAME] in [NAME] were not party to the original approval, however in this case information asymmetry was not created by removing [COMPANY]. from the Order as the remaining [NAME] were all original parties to the Order and [NAME] is not a new party to the Order but simply an intervenor in the hearing of the appeal; 2.                   as in [NAME] where it was determined the onus properly fell on [NAME], in all appeals before the Board the director provides submissions on the merits of its own decision; and 3.                   it was necessary for [NAME] to seek a postponement of the hearing so that the Board could have all relevant information regarding the current impact of the contamination on surrounding properties because of [NAME]’ delay in taking certain steps to delineate the contamination in surrounding properties, as required by the Director. [98] Further, the gathering of the additional information did not change the fact that the Director had sufficient information to establish [NAME] were “persons [NAME]” at the time the Order was issued. [99] [ 120 ]                                With respect to [NAME]’ extensive submissions regarding whether the appeals were de novo , [NAME] submitted the Board has broad discretion to determine the type of appeal it conducts and the Court in [NAME] extensively detailed the rationale for placing the onus on [NAME] in the context of an EPO appeal but not in other types of appeals. [NAME] submitted it was irrelevant whether the Court in [NAME] agreed with the Board’s commentary in [NAME] on the nature of the appeal being de novo . [100] [ 121 ]                                [NAME] concluded, as previously noted, there was no reason for the Board to depart from the [NAME] decision which established the onus is on [NAME] in EPO appeals to establish they are not “persons [NAME]” and as the case at hand is highly analogous to [NAME] , the same reasoning should be applied here. [101] 5.4.                                     [NAME]’ Rebuttal [ 122 ]                                [NAME] reiterated their position that the circumstances of the appeals require the Board to conduct a true de novo hearing of the appeal of the Order with no deference to [NAME] decision to issue the Order and that the onus is on the Director to establish that the Director was correct in holding [NAME] were each a “[NAME].” [102] [ 123 ]                                [NAME] noted the Director relied primarily on [NAME] and [NAME] in her submissions and that the paragraphs in [NAME] upon which the Director rested most of her decision were a summary of the Board’s decision in [NAME] and [NAME] v Director, Central Region, Regional Services, [NAME], re: Beaver Regional Waste Management Services Commission, 2006 ABEAB 12 ( [NAME] ), which the Court in [NAME] expressly rejected as a persuasive authority for determining onus . As a result, [NAME] argued [NAME] submissions are compromised. [103] [ 124 ]                                [NAME] acknowledged [NAME] was not a judicial review of an EPO, nor did it directly overrule the [NAME]. However, [NAME] submitted [NAME]’s submission that the Court implicitly affirmed the [NAME] decision and that [NAME] submissions that the [NAME] were determinative of the issue of onus in these appeals were incorrect. [NAME] argued the Court in [NAME] was careful to point out that [NAME] did not endorse the merits on the Board’s conclusion in [NAME] regarding onus. [104] [NAME] also noted the Court in [NAME] emphasized the importance of statutory interpretation when determining onus and highlighted the error in statutory interpretation made by the Court in the [NAME] when it was incorrectly held in [NAME] that the Board did not have the power to replace [NAME] decision with its own decision in an EPO appeal. [105] [NAME] submitted [NAME] called the conclusions of [NAME] into question. [ 125 ]                                [NAME] acknowledged the nature of the appeal in [NAME] was a distinguishing factor from the present appeals, but argued the Board must revisit its blanket decision to place the onus on [NAME] in EPO appeals and consider the binding general principles of law articulated by the Court in [NAME] in determining the onus in all appeals being: 1.                   the primacy of statutory interpretation; and 2.                   the type of appeal the Board is hearing and the particular circumstances of each case . [ Emphasis added by [NAME].] [NAME] argued that because the Board did not have this guidance from the Court of King’s Bench when [NAME] [Board] was decided, the Board must revisit its decision to place the onus on [NAME] in all EPO appeals. [106] [ 126 ]                                [NAME] submitted that the circumstances of this case that must be considered by the Board were: 1.                   the Director and [NAME] are parties making positive assertions and must prove them; 2.                   information asymmetry is about knowledge of the facts underlying the decision under appeal; 3.                   the “floodgates” and integrity of the appeal process arguments are unfounded; 4.                   the Director is both policeman and judge and is not an impartial decision-maker; 5.                   [NAME] and [NAME]’s reliance on new information is important and not the delay it caused; 6.                   the change in parties favours a true de novo appeal; and 7.                   the onus does not determine the order of presentation. The Director and [NAME] are parties making positive assertions and must prove them. [ 127 ]                                [NAME] noted the Court in [NAME] stated that the standard of review, the de novo nature of the appeal and the onus borne by the parties are distinct concepts but “those concepts must work together to create a coherent appeal process.” [107] [NAME] argued that the defining feature of a true de novo appeal is that the appellant need not identify an error in the decision appealed, rather the decision-maker must make its own decision afresh on the evidence and argument before it. [108] In the case of a true de novo appeal of the Order, [NAME] argued the onus is on the Director to prove its prima facie case on the evidence before the Board. [109] [ 128 ]                                [NAME] submitted there was no dispute between the parties that the standard of review to be applied is one of correctness and the Board must determine if it was factually and legally correct to label each of [NAME] a “[NAME].” [NAME] further submitted the Board must determine if the Director has the onus to establish each Appellant is a “[NAME]” or if [NAME] must establish, they are not “persons [NAME].” [ 129 ]                                [NAME] argued that because it was the Director and [NAME] making the positive assertion that [NAME] are “persons [NAME] for the substance” and the current owner of a property that is subject to historical contamination is a “[NAME] for a substance” on that property, the Director and [NAME] should bear the onus of proving the assertions because it was unfair to require [NAME] to prove a negative. [110] [ 130 ]                                [NAME] noted the Director relied heavily on the principle that the party making an assertion has the onus of proving that assertion but argued the Director has confused which party raised the issue with which party bears the onus of proof. [NAME] pointed out there are numerous examples in law where a party bears the onus on an issue raised by another party such as in limitations or a criminal context where the [NAME] asserts lack of legal authority. [111] [ 131 ]                                [NAME] submitted they were not making any positive assertions that were disputed in the appeals. [NAME] conceded that [NAME] is the registered owner of the Lands but noted the Board has previously held the fact of ownership is insufficient to make a “[NAME] for a substance.” [NAME] asserted there was no evidence of the “something more” required by the Board’s [NAME] decisions to support the conclusion that [NAME] were a “[NAME] for the substance” and that it was more appropriate for the Director to prove a positive assertion that [NAME] have done “something more” than to require [NAME] to prove a negative given the nature of the appeals. [112] Information asymmetry is about knowledge of the facts underlying the decision under appeal. [ 132 ]                                With respect to information asymmetry, [NAME] argued the issue of information asymmetry was not only about knowledge of the Lands, it was about understanding the reasons why the Order was made. [NAME] asserted that as the recitals to the Order only contain a bare assertion that [NAME] were each “persons [NAME],” only the Director knows why the Order was issued against [NAME]. [NAME] stated it was “not fair to place the onus on an appellant who is only guessing why the [Order] has been issued against them.” [113] [ 133 ]                                [NAME] submitted the facts of the case demonstrate the information imbalance was caused by the Director withholding its reasons. Despite asking the Director in person and in writing, it was not until [NAME] received [NAME] Hearing Submission that [NAME] were given any reasons why [NAME] and [COMPANY]. were “persons [NAME]” beyond [NAME]’s ownership of the Lands, because the Director refused or failed to provide them. Further, [NAME] noted with respect to [COMPANY]., [NAME] never discovered why they had been named a “[NAME]” because the Director amended the Order to remove [COMPANY]. days before filing [NAME] Hearing Submission. [114] [ 134 ]                                [NAME] submitted [NAME] argued [NAME] should have guessed why the Director treated each Appellant as a “[NAME]” because [NAME] were the registered owner of the Lands, they conducted numerous investigations of the pollutions on the Lands, and they had management of the substance as they had removed and treated contaminated water from the Lands and then properly disposed of it. However, [NAME] noted that [COMPANY]., despite being named as a “[NAME],” was not the registered owner, was not involved in the investigation of the pollution on the Lands, and was not involved in the removal, treatment and disposal of contaminated water. [115] [ 135 ]                                 [NAME] argued in the circumstances of this appeal where the Director has provided no explanation of the “something more” that would make [NAME] for pre-existing pollution, the Director should bear the onus of explaining its reasoning and providing the facts underlying it. [NAME] asserted the Board has been clear that ownership of the Lands does not make it a “[NAME]” and further [NAME] is clear that in the absence of evidence that an investigation exacerbated the pollution, investigating a substance does not make a party [NAME] for it. [116] [ 136 ]                                [NAME] further noted that unlike the parties found [NAME] in [NAME] never operated the business that caused the Lands to be polluted and therefore, in the absence of any explanation from the Director, [NAME] have no way of understanding why it was being treated differently than other owners of historically contaminated lands exercising administrative control of the inherited substances on their Lands. [117] The “floodgates” and integrity of the appeal process arguments are unfounded. [ 137 ]                                With respect to [NAME] and [NAME]’s argument that placing the onus on the Director where there is a statutory right of appeal would open the “floodgates” and compromise the integrity of the EPO process, [NAME] submitted their arguments were without merit as neither [NAME] nor the Director nor [NAME] provided any supporting argument. [NAME] further argued [NAME] did not rule that a statutory right of appeal requires the onus to be on the appellant rather, [NAME] only found the “floodgates” argument did not apply to appeals of Water Act approvals. [118] [ 138 ]                                [NAME] submitted the integrity of the enforcement and appeal process would be enhanced by placing the onus on the Director, particularly where the Director provided no intelligible reasons for treating a party as a “[NAME] for a substance.” [NAME] submitted placing the onus on the Director does not require the Director to justify every EPO a second time because the Director issues an EPO without a hearing in the first instance and the appeal is the first time the Director has to establish a prima facie justification for its decision regarding an appellant’s status as a “[NAME].” [119] [ 139 ]                                [NAME] submitted placing the onus on the Director does not place an undue burden on her as it only required the Director to include intelligible reasons in the recitals of an EPO and then adduce a record that contained some evidence to support those recitals. [NAME] noted the Director must always disclose its record at the first stage of an appeal so placing the onus on the Director does not change or obstruct the appeal process in any way. [120] [ 140 ]                                It was argued by [NAME] that placing the onus on them incentivizes the Director to issue an EPO without justification and forces [NAME] to prove their innocence by disproving an unknown theory of guilt. [NAME] further argued placing the onus on the Director discourages the arbitrary exercise of government power, improves transparency of the enforcement and appeal process, and encourages the Director not to issue an EPO unless the Director can at least articulate a prima facie case for treating a party as a “[NAME].” [121] [ 141 ]                                [NAME] submitted the only way there could be a material increase in the number of appeals by placing the onus on the Director would be for the Director to routinely issue EPOs without a prima facie case for doing so and requiring [NAME] to go through the entire appeal process to overturn an EPO that was never supported by a prima facie case, wasting the Board’s time. [ 142 ]                                [NAME] pointed to the inclusion of [COMPANY]. in the Order as an example of how placing the onus on the Director would enhance the enforcement and appeal process by increasing transparency, disincentivizing the unexplained and arbitrary exercise of government power, and reducing waste. [NAME] noted [COMPANY]. was a true stranger to the Lands and the Substance, that the Director issued the Order against them without explanation stating only it “remains right now” [122] and there was no positive evidence that the Director could adduce. [NAME] argued the Director was incentivized to exercise its power in an arbitrary way because the Director believed it would not have to justify its decision on appeal. [123] [ 143 ]                                [NAME] further noted [COMPANY]. was limited to denying any involvement in the Lands and explaining its unrelated business and in the end filed a notice of appeal, attended mediation, participated in multiple procedural motions and made its initial hearing submissions only to have the Director withdraw the Order against [COMPANY]. days before the Director filed [NAME] Hearing Submission. [124] The Director is both policeman and judge – not an impartial decision-maker. [ 144 ]                                [NAME] submitted the Director was not an impartial decision-maker in the context of an EPO, as argued by the Director and [NAME] , but is both a policeman and a judge in the context of an EPO and therefore has an interest in the Order. [125] [ 145 ]                                [NAME] submitted [NAME] provides the Director sweeping investigative powers, including the power to conduct warrantless searches and seizures. [126] [NAME] further submitted the issuance of an EPO is unlike the issuance of a Water Act approval where the Director passively waits for private parties to bring forward an application and then dispassionately adjudicates the application. Where a substance is released, [NAME] argued that the Director becomes actively involved in the investigation and response. [127] [ 146 ]                                [NAME] further submitted the Director was also interested in obtaining compliance with its direction given the Director has an enforcement capacity which [NAME] stated is like that of a police officer being able to investigate suspected crimes and decide the outcomes of the trials that arise from those investigations. [NAME] acknowledged that while neither is uncommon or inappropriate in a regulatory context, it dispels the misconception the Director is impartial and disinterested when issuing an EPO. [128] [ 147 ]                                [NAME] argued the reality of [NAME] enforcement role in which it acts as an interested party to seek compliance with its own directives undermines the reasoning in [NAME] and the dual nature of the Director as both policeman and judge militates in favour of the Director bearing the initial onus on appeal. [NAME] noted in these appeals, the Director had been actively directing the various owners of the Lands to investigate and report on the status of the Lands and take action to manage the pollution since 2006 and opened a formal investigation in 2022 at the request of [NAME]. [129] [NAME] stated it was only after the Director determined that [NAME] was unwilling to comply with [NAME] direction that the Order was issued. [130] [NAME] and [NAME]’s reliance on new information is important, not the delay it caused. [ 148 ]                                [NAME] submitted [NAME] and [NAME]’s insistence that the hearing be delayed because the additional evidence to be gathered was critical to the Board’s understanding of the appeals justifies the Board conducting a true de novo appeal without regard or deference to the decision of the Director. [NAME] noted [NAME] stated in the Intervenor’s Response Submission that it was “necessary for [NAME] to seek that the hearing be postposed so that the Board could have all the relevant information.” [131] [ 149 ]                                [NAME] relied on [NAME] at paragraph 156 and paragraph 157 where the Court noted that where an appeal considers new evidence that was not available to the original decision-maker the appeal should be conducted as a true de novo appeal, with no deference to the to [NAME] decision. In this case, [NAME] argued that where the post-Order information was so critical it justified depriving [NAME] of their right to be heard by over a year, that information must be of sufficient importance to justify the Board conducting a true de novo appeal . [132] The change in parties favours a true de novo appeal. [ 150 ]                                [NAME] submitted as in [NAME], the change in parties between [NAME] decision and the appeal favours a true de novo appeal in which the onus is on the Director and noted that [NAME] held that when determining onus, the Board must consider not only the type of the appeal but the particular circumstances. [133] [ 151 ]                                [NAME] noted the Director conceded that most EPO appeals involved only the Director and the recipient. In this case however, [NAME] argued it was not a standard two-party EPO appeal as one party was removed and a party was added which is why a true de novo appeal should be conducted. [134] [ 152 ]                                [NAME] further noted [NAME] argued that its participation in the appeals was irrelevant because it was not a new party to the Order and it was supporting as opposed to challenging [NAME] decision. [NAME] disagreed and argued it was the absence of [NAME] in the process of issuing the Order and [NAME]’s participation in the appeal the militates in favour of a true de novo appeal. Further, [NAME] argued [NAME]’s argument that it was not challenging [NAME] decision ignores the fact that the appeal would be decided with the involvement of parties that were not involved in the initial decision to issue the Order. [135] The onus does not determine the order of presentation. [ 153 ]                                [NAME] also argued the determination of onus does not change the order of presentation at the hearing of the appeals. [NAME] submitted the purpose of principles of natural justice and the duty of procedural fairness was to ensure that the administrative state was fair to individuals whose rights are affected by administrative decisions. [136] [NAME] submitted that granting [NAME] the first and last word in an appeal was a procedural safeguard that helped ensure a fair process for [NAME] by giving [NAME] the opportunity to hear all of the evidence adduced against it and because the right of appeal is a procedural check on the power and resources of the state. [137] [ 154 ]                                [NAME] submitted the procedural check on the exercise of the power and resources of the state was particularly important in a system where EPOs were made against private parties without a formal hearing in the first instance and was a procedural safeguard preventing the government from splitting its case and ensures every appellant has an opportunity to respond to evidence and arguments that might be adduced by intervenors aligned with the Director. [138] [ 155 ]                                [NAME] submitted it was actually the Director who had the first chance to make its case in the overall appeal process because a director presents it prima facie case before an appellant makes its initial submission in the form of the [NAME] which includes the EPO and all of [NAME] evidence in support of the EPO. [NAME] further submitted once the Director has laid out its prima facie case in the recitals of an EPO and a [NAME], an appellant can respond, after which a director can also respond to an appellant’s arguments regarding the EPO and the sufficiency of a [NAME]. [NAME] stated once a director’s case is closed, an appellant as a private party challenging a decision of the administrative state has an opportunity to make final response with the full knowledge of the case against it. [139] [ 156 ]                                [NAME] submitted that giving the appellant the final word in a hearing process is the only fair process for [NAME] in all appeals regardless of who has the onus because permitting the Director to have the final say in a hearing would compromise the fairness of the hearing by robbing the appellant of the opportunity to answer the entire case against it. [140] [ 157 ]                                [NAME] argued the prejudice in [NAME] arose because the [NAME] at the outset of the hearing stated the appellant had the burden of proving their case and the appellant raised the issue after the director, in reliance on the [NAME]’s statement, had presented its case on the basis the director had no onus to discharge and could rely on the appellant’s own failure to prove their case. [NAME] submitted, while it would be unfair to change the rules of the game after the parties have presented their evidence at a hearing of the appeals, there was no such unfairness in these appeals as the Parties have not yet presented their evidence, the Director has not closed her case and the Director has the opportunity to adduce whatever evidence and argument she believes will make out her prima facie case. [141] [ 158 ]                                Further, [NAME] submitted there was no requirement the order of presentation be the same in the hearing as it was in procedural motions and the Director misunderstood the Court’s comments in [NAME], that the Board must apply its decision on onus consistently. [NAME] submitted the Court in [NAME] merely stated that the Board’s decision was internally incoherent because the Board purported to put the onus on one party then practically placed it on a different party elsewhere in its decision. [NAME] further noted it was common for the order of presentation in a procedural hearing to differ from the hearing on the merits depending on the nature of the application, giving as an example that [NAME] and the Director were directed to provide their submission simultaneously in response to [NAME]’s application to participate in the appeals. [142] [ 159 ]                                [NAME] concluded the Board’s decision on onus must be consistent with the text, context and purpose of the statutory scheme. [143] [NAME] argued by empowering the Board to not only cancel or vary an EPO but make any other decision the Director could make, together with the absence of a hearing in the first instance without any safeguard for procedural fairness when the Director initially issues an EPO, the [NAME] intended than the Board conduct true de novo appeals. [NAME] submitted in these appeals the Director and [NAME] were making new legal and factual assertions as to why [NAME] are each “persons [NAME]” that were not made at the time the Order was issued, and the Director and [NAME] should bear the onus of proving those new positive assertions. [144]

6.                                          ANALYSIS [ 160 ]                                As previously noted, the preliminary issue before the Board is who bears the onus of persuading the Board the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied. 6.1.                                     Legislation and Caselaw 6.1.1.                               Legislation [ 161 ]                                [NAME] authority to issue an EPO to a “[NAME]” for the release of substance into the environment is found in section 113 of [NAME] as follows: 113(1) Subject to subsection (2), where the Director is of the opinion that (a)    a release of a substance into the environment may occur, is occurring or has occurred, and (b)    the release may cause, is causing or has caused an adverse effect, the Director may issue an environmental protection order to the [NAME] for the substance.” [ 162 ]                                The definition of “[NAME]” is found in section 1(tt) of [NAME]. The provisions relevant to the Board’s analysis are as follows: “(tt)     “[NAME]”, when used with reference to a substance or a thing containing a substance, means (i)                  the owner and a [NAME] of the substance or thing, (ii)               every person who has or has had charge, management or control of the substance or thing, including, without limitation, the manufacture, treatment, sale, handling, use, storage, disposal, transportation, display or method of application of the substance or thing, (iii)              any successor, assignee, executor, administrator, receiver, receiver‑manager or trustee of a person referred to in subclause (i) or (ii), and (iv)              a person who acts as the principal or agent of a person referred to in subclause (i), (ii) or (iii), …” [ 163 ]                                [NAME] right to file an appeal of the Order is found in section 91(1)(h) of [NAME] which provides: “91(1)  A notice of appeal may be submitted to the Board by the following persons in the following circumstances: … (h)       where the Director issues an environmental protection order … the person to whom the order is directed may submit a notice of appeal;” [ 164 ]                                Further, section 91(4) provides the notice of appeal of an EPO must be submitted to the Board “not later than 7 days after receipt of a copy of … the environmental protection order,” issued under section 91(h). [ 165 ]                                Section 95(2)(d) provides the Board the power to consider information at the hearing of the appeals that was not before the Director when the Director made its decision to issue the EPO: “(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;” [ 166 ]                                Section 98(2) of [NAME] provides the Board the following powers when making its decision regarding an appeal of an EPO: “(2)      In its decision, the Board may (a)        confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make, and (b)       make any further order the Board considers necessary for the purposes of carrying out the decision.” [ 167 ]                                While the Board may on application of a party stay [NAME] decision to issue the Order, [145] section 97(1) of [NAME] provides that “submitting a notice of appeal does not operate to stay the decision objected to.” [ 168 ]                                With respect to the burden of proof, the Board’s Rules of Practice at Rule 29 provides: [146] “29.     Burden of Proof Any Party offering evidence shall have the burden of introducing appropriate evidence to support its position. Where there is conflicting evidence, the Board will decide which evidence to accept and will generally act on the preponderance of the evidence.” 6.2.                                     [NAME] Decision [ 169 ]                                The Board requested the Parties consider paragraph 108 through paragraph 163 of the Court of King’s Bench Decision in [NAME] when making their submissions in this Preliminary Motion. After considering the Parties submissions on [NAME] , the Board is of the view that the Court provided significant legal guidance on the proper allocation of onus that should be considered by the Board in this Preliminary Motion which was supported by an extensive review and analysis of [NAME] and the [NAME]. In the Board’s view the key legal guidance in [NAME] is summarized as follows: The [NAME] [ 170 ]                                In paragraph 115 through paragraph 129 of the [NAME] decision, the Court provided an extensive review of the [NAME]. The [NAME] related to an appeal of an EPO before the Board ( [NAME] ) and the subsequent judicial review of that decision by the Court of King’s Bench ( [NAME] ). [ 171 ]                                [ADDRESS] in [NAME] distinguished [NAME] from the [NAME] appeals, finding it was not determinative of the issue of onus in the [NAME] appeals. As previously noted the Court in [NAME] was considering the judicial review of the Board’s decision in [NAME] regarding the appeals of the decision of the director to issue a Water Act approval to [NAME]. Madame Justice Gaston held [NAME] addressed the narrow question of whether it was a breach of natural justice to impose the onus on the recipient of an EPO who subsequently appeals the EPO. Madame Justice Gaston also noted the reasonableness of the Board’s decision on onus was not at issue and stated more importantly, the Board’s rationale on onus did not hold up to scrutiny when viewed against the factual background of [NAME] because in [NAME] there was information asymmetry and the concerns about the integrity of the appeal process were not the same. [147] [ 172 ]                                With respect to information asymmetry, the Court noted the Board at paragraph 53 in [NAME] , had stated the recipient of the EPO has or has the ability to obtain as much information about an environmental situation equal to the Director. Consequently, Madame Justice Gaston stated it made sense for the appellant to bear the onus in the appeal. Madame Justice Gaston further stated that information symmetry may be the case where the appellant is a recipient of an EPO but is not the case where an appellant is “directly affected.” Madame Justice Gaston further noted that at the time the Director granted the approval, there was obvious information asymmetry between [NAME]. and the Director, and the statement of concern filers in [NAME], which continued through the appeal period when [NAME]. denied those parties who were “directly affected” a site visit. [ADDRESS] found it was the approval holder not the appellant who had the ability to obtain as much information as the Director. [148] [ 173 ]                                Madame Justice Gaston further stated at paragraph 127 that the circumstances of the Water Act approval are different from those of an EPO because a statement of concern filer must establish they are “directly affected” before the Board will hear their appeal. Madame Justice Gaston referred to the decision of the Court of Appeal in [NAME] where the Court found whether someone is “directly affected” is not straightforward. [149] [ 174 ]                                With respect to the integrity of the appeal process, Madame Justice Gaston found the Board’s concerns in [NAME] about the integrity of the appeal process were attenuated when you consider that a recipient of an EPO has a statutory right of appeal and a statement of concern filer does not. It was Madame Justice Gaston’s view that the screening function of requiring a person to be directly affected narrows the pool of [NAME] that are granted standing in Water Act appeals which preserves the integrity of the [NAME] appeal process. Madame Justice Gaston noted at paragraph 123 that the Board in [NAME] held the integrity of the appeal process would be obstructed if every person who was the subject of an [NAME] decision could, without establishing a prima facie case, require the Director to justify their decision which Madame Justice Gaston further described in paragraph 126 as a “floodgate” type concern. [150] [ 175 ]                                [ADDRESS] also noted [NAME] appeared to contain a misstatement when summarizing the Board’s position in [NAME] . Madame Justic Gaston noted the Court had found that as the Board cannot substitute its own decision for that of the Director, it cannot be a true de novo hearing. Madame Justice Gaston stated this finding was inconsistent with section 100 (now section 98(2)) of [NAME] that the “Minister can make any decision the person whose decision was appealed could make.” [151] [ 176 ]                                In concluding that the Board’s reasoning in [NAME] , which was upheld in [NAME] on the narrow basis of natural justice, was not determinative in the [NAME] decision, Madame Justice Gaston stated that [NAME] appears to have recognized that who bears the onus will vary depending on what type of appeal the Board is hearing and the particular circumstances of each case. [152] The Board’s decision in [NAME] was unreasonable. [ 177 ]                                As previously noted, the Court in [NAME] was considering a judicial review of the Board’s decision in [NAME] where the Board considered the standard of review, onus and the de novo nature of an appeal. The Board notes the Parties agree in these appeals that the applicable standard of review is correctness and accordingly the Board will summarize the key legal guidance provided by the Court in [NAME] as it relates to the issue of onus and the de novo nature of an EPO appeal. [ 178 ]                                [ADDRESS] at paragraph 108 summarized the matter before the Board in [NAME]. [ADDRESS] noted [NAME] in [NAME] had argued they did not have an onus to meet because the Board owed no deference to the Director in a de novo hearing. The Board rejected [NAME]’ argument and held that in an approval appeal under section 115(1)(a) of the Water Act and section 91 of [NAME], the onus is on the appellant to provide sufficient evidence and argument to demonstrate to the Board the approval should be reversed or varied. [153] [ 179 ]                                On judicial review of the [NAME] decision, [NAME] had argued the de novo nature of the appeal was a relevant consideration when determining who, if anyone, bore the onus on the appeal. Madame Justice Gaston agreed with [NAME] noting that the Board failed to engage with this argument based on a misunderstanding of the issue. [154] [ 180 ]                                Madame Justice Gaston found that the Board’s decision in [NAME] regarding onus was unreasonable because it was internally incoherent and not based on a rational chain of analysis noting the Board had stated in one part of its reasons that it was placing the onus on [NAME] to justify a reversal or variance of the approval, then later in its reasons did the opposite by placing the onus on [NAME]. to provide sufficient evidence to justify confirming the approval. [ADDRESS] further found the Board’s reasons regarding onus were not tethered to the statutory scheme and failed to engage with the guidance in [NAME] regarding the appropriateness of an onus of proof given the nature of the Board’s polycentric environmental decision making under the [NAME]. [155] [ 181 ]                                In her decision, Madame Justice Gaston acknowledged that the Board was correct in finding that onus, the standard of review and the de novo nature of an appeal are distinct concepts but found the Board had addressed them in a “silo” which resulted in a confusing and unmanageable analysis. [156] [ 182 ]                                In her reasons, Madame Justice Gaston attributed part of the problem with the Board’s analysis to the Board’s use of the phrase “ de novo hearing ” without explaining what it meant, [157] noting that all parties had pointed out the term was ambiguous and that the ambiguity was explained in [COMPANY] v [NAME] , 2018 ABCA 113 ( [NAME]) as follows: It appears, then, that some courts treat a “hearing de novo ” as “an entirely new case... independent of the original case”, while other courts use the terminology of “hearing de novo ” to denote a hearing where “new evidence” or “new grounds” may be considered, while still other courts use the term “ de novo ” to describe that a reviewing court may substitute its own opinion for that of the original decision-maker. [158] [ 183 ]                                Madame Justice Gaston further explained the problem with the Board’s use of the phrase “ de novo hearing” was compounded by the Board appearing to adopt shifting approaches to applying onus in the appeal or providing deference to the decision of the Director depending on the issue, without explanation, citing in paragraph 136 through paragraph 140 of her decision several examples of the shifting approach. [159] [ADDRESS] pointed out that the Board’s inconsistency was that on one hand the reasons were premised on a true de novo appeal and on the other hand, on a review of [NAME] decision on the correctness standard. [160] [ 184 ]                                [ADDRESS] further noted that the distinction was explained at paragraph 66 of [NAME] citing the [NAME] & [NAME] in Standard of Review Employed by [NAME] , 2nd ed (Edmonton: [NAME], 2006) at paragraph 43 and 44: [161] “43      In a true de novo hearing, the reviewing tribunal makes its own decision on the issues with no regard to the proceeding before the first tribunal. This is the complete absence of deference. Like absolute deference, it is, strictly speaking, not a standard of review because there is no review.

44.       When it views a matter afresh, a reviewing court asks, “What is the right decision?” That is not quite the question implied by the concurrence (correctness) standard, which is: “Was the decision of the first court right?” The second question raises a presumption of fitness, or correctness, about the first decision and allows a reviewer to let a decision stand unless persuaded of a better one. The first requires the reviewer to decide the case.” [ 185 ]                                Madame Justice Gaston noted the Board in [NAME] stated that in finding the onus was on [NAME] in [NAME] it followed its earlier decisions in [NAME] and in [NAME] v Director, Northern Region, Environmental Management, [NAME] , re: [COMPANY] , 2011 ABEAB 23 ( [NAME] ). Madame Justice Gaston undertook a detailed review in paragraph 142 through paragraph 147 of her decision, of the Board’s findings in [NAME] and [NAME], as well as the supporting cases cited by the Board in [NAME], and concluded that the cases cited by the Board were either inapplicable or merely “reiterated a proposition without justification rooted in the statutory scheme” and therefore the Board’s decision on onus was unreasonable as it was unjustified. [162] [ 186 ]                                Madame Justice Gaston then stated that the nature of an appeal before the Board is determined by the statutory language and citing [NAME] at paragraph 120, noted that while the Board is not required to engage in a formalistic statutory interpretation, the Board’s decision on onus must be consistent with the text, context and purpose of the statutory scheme. [163] With respect to the statutory scheme, the Madame Justice Gaston further pointed out that [NAME] says nothing about appeals being de novo, merely stating in section 95(8) of [NAME] that the Board has the authority to set its own rules and procedures and that Rule 29 of the Board’s Rules of Practice provides: [164] “Any Party offering evidence shall have the burden of introducing appropriate evidence to support its position. Where there is conflicting evidence, the Board will decide which evidence to accept and will generally act on the preponderance of the evidence.” [ 187 ]                                Madame Justice Gaston acknowledged the Director, [NAME]. and the Board pointed to Rule 29 as justification for the Board finding the onus fell on [NAME] but found that Rule 29 does not go so far as the parties suggested, relying on [NAME] where the Court held that Rule 29 does not go so far as to justify placing the onus on [NAME] as it only imposes an onus to adduce evidence in support of one’s position. Madame Justice Gaston also noted the Board and Director argued that an appeal is not a second consideration of the first instance but the cases citied in support were distinguished by the Court as either not being an appeal of a “directly affected person” or unhelpful as they related to a different statutory scheme. [165] [ 188 ]                                With respect to the Board’s long-standing practice of placing onus on the appellant, Madame Justice Gaston stated the problem with a blanket rule is that the Board hears a variety of appeals where the appellant in each type of appeal may not be similarly situated and therefore the context of the appeal must be taken into account. [166] [ADDRESS] went on to note the Board is not bound by its own decisions but to achieve consistency in its decisions, it may be appropriate for the Board to consider the issue of onus having regard to factors such as the type of appeal, the parties before it, and the issues the Board set for itself, similar to what the Board did in [NAME] . [ADDRESS] further noted that the problem that arises, as identified in [NAME] , is that appeals before the Board are not adversarial processes and that importing adversarial processes may not be appropriate for polycentric environmental decision making under [NAME] with its varied purposes. [167] [ 189 ]                                [ADDRESS] noted that in [NAME] much of what occurred before the Board was atypical of the adversarial process as follows: 1.                   the statement of concern filers who alleged they were directly affected only became parties to the appeals after [NAME] decision had been made; 2.                   the Director (the original decision-maker) provided submissions to the Board on its decision, including submissions regarding errors and their correction; and 3.                   the Board heard extensive new evidence that was not before the Director when he made his decision regardless of whether it was available to the Director when the decision was made. [168] [ 190 ]                                Madame Justice Gaston also noted [NAME] made the arguments in their closing submissions that there was recent appellate guidance interpreting similarly worded appeal provisions that suggested the structure of [NAME] as well as the facts of the [NAME] case required the Board to conduct a true de novo hearing with no regard to [NAME] initial decision. [NAME] had further relied on the fact that the Board had heard “extensive new evidence” that was not before the Director at the time he made his decision and that the Minister was authorized to make any decision the Director could make to argue the Board should conduct a true de novo hearing. [169] Madame Justice Gaston noted the Board failed to consider or engage with these arguments or even provide reasons rooted in the statutory scheme and instead relied on single sentences plucked form [NAME] and [NAME] . [170] [ 191 ]                                [ADDRESS] also noted that following the hearing of [NAME] , the Court of Appeal released its decision in [NAME] v [NAME] ([NAME]), 2025 ABCA 121 ( [NAME] ) where the Court of Appeal found at paragraph 31 that the general rule was that the person challenging a civil administrative decision had the burden of proof . Madame Justice Gaston found, after considering the decision of the Court of Appeal , [NAME] did not apply to the case before her because the nature of an appeal is determined by the statutory language of the relevant statute, which in [NAME] was [NAME] and in [NAME] was the Provincial Administrative Penalties Act , RSA 2020 c P 30.8. [171] [ 192 ]                                Madame Justice Gaston went on to consider that if she was wrong and [NAME] applies and the onus falls on [NAME] to prove they are entitled to the relief sought, the Board’s decision on onus was unreasonable as the Board required [NAME] to provide both sufficient evidence and argument to demonstrate to the Board that [NAME] approval should be reversed. Madame Justice Gaston found that such a statement ignores the possibility that: “an appellant could establish prima facie grounds for the Board to recommend a reversal or variance by offering no affirmative evidence so long as the appellant shows that the approval is invalid on its face or otherwise unsupported by the [NAME].” Further, Madame Justice Gaston stated that in such circumstances: “… it would fall on the Director to provide sufficient evidence to justify the approval: see for example [NAME] v Director of Southern East Slopes and Prairie Regions, [NAME]. Re: [NAME] , 1998 ABEAB 22 at para 25.” [172] [ 193 ]                                Madame Justice Gaston concluded at paragraph 163 of her decision that the Board’s decision regarding onus was unreasonable because: “… it is internally incoherent and not based on a rational chain of analysis. The Board said it was doing one thing (placing the onus on [NAME] to justify a reversal or a variance of the approval) and then did the opposite (placed the onus on [NAME] to provide sufficient evidence to justify confirming the approval). The Board’s reasons on onus are not tethered to the statutory scheme and failed to engage with the guidance in [NAME] regarding the appropriateness of an onus of proof given the nature of the Board’s polycentric environmental decision making under the [NAME].” [173] 6.3.                                     Analysis and Findings. [ 194 ]                                As previously noted, the issue before the Board is with respect to the allocation of onus in an appeal of an EPO and the de novo nature of the proceedings. The Parties agree the standard of review is correctness, and therefore the standard of review to be applied by the Board is not at issue in these appeals. [ 195 ]                                [NAME] have argued the onus is on the Director in these appeals to establish that each of [NAME] is a “[NAME]” under [NAME], the statutory scheme determines the nature of an EPO appeal, and the circumstances of these appeals require the Board to conduct a true de novo appeal in which the onus is on the Director with no deference granted to [NAME] decision. [174] [ 196 ]                                [NAME] relied on the [NAME] decision to argue the Board’s long-standing practice of placing the onus on [NAME] in EPO appeals was flawed, must be revisited, and that the statutory language giving rise to the appeals determines the nature of an EPO appeal. [NAME] further submitted that where the statutory scheme empowers the Board to make any decision the Director could have made, the Board must undertake a true hearing de novo without any deference to the Director. [175] [ 197 ]                                [NAME] argued that while the statutory scheme and nature of an EPO appeal favoured a true de novo appeal, if the Board were to consider the facts of the appeals, the threshold nature of the issue before the Board, the absence of any formal hearing at first instance, and the absence of any reasons from the Director explaining its decision on the threshold issue under appeal, as required by [NAME], the circumstances also strongly favour a true de novo appeal where the onus is on the Director. [176] [ 198 ]                                [NAME] noted the Director relied on [NAME] and [NAME] to argue that [NAME] had the onus to prove each of their assertions in their Notices of Appeal and in response argued that [NAME] reliance on [NAME] was expressly rejected by the Court in [NAME] as it was based on the Board’s decision in [NAME] which in the Court’s view did not support the Board’s conclusion regarding onus. [ 199 ]                                [NAME] argued the Director had confused which party raised the assertion with which party bears the onus, noting it was [NAME] and [NAME]’s positive assertion that was in dispute in the appeals, being that [NAME] are the “persons [NAME].” [177] Accordingly, [NAME] argued it was appropriate for the Board to undertake a true de novo hearing as that would be more in keeping with both the common law principle of “he who asserts must prove,” because proving a negative is “next to impossible,” [178] and it was also consistent with Rule 29 of the Board’s Rules of Practice which requires a party to introduce “appropriate evidence to support its position.” [NAME] also argued it would undermine the public trust if the Director, without evidentiary foundation, could put the onus on a party to prove a negative, noting it was not onerous to require the Director to establish a prima facie case as the Director could do so by disclosing evidence in the [NAME] which supported intelligible recitals in the EPO under appeal. [179] [ 200 ]                                With respect to the [NAME] argued that the Board did not have the guidance of the Court’s decision in [NAME] when it made its determination in [NAME] and despite [NAME] relating to an approval appeal, the Board should revisit its decision to place the onus on an appellant in an EPO appeal. [180] [ 201 ]                                In response to [NAME]’ submissions, the Director argued the onus rests on [NAME] to prove [NAME] decision to issue the Order was inappropriate and to persuade the Board to recommend to the Minister that the Order should be varied and exactly how, or reversed. [NAME] agreed. [181] [ 202 ]                                As previously noted, the Director relied on the Supreme Court of Canada’s finding in [NAME] to argue that “the ordinary principles of litigation put the burden of proof on the party making the assertion” [182] and those principles applied in an administrative law context such that “the party that asserts must prove” [183] and on the Board’s finding in [NAME] that an Appellant bears the onus and it cannot be discharged through speculative allegations, as doing so would effectively reverse the onus by requiring a director to disprove them. [184] [ 203 ]                                The Director asserted that as [NAME] initiated the appeal, based on [NAME] and [NAME] bear the onus of proving each assertion and claim made in their respective Notices of Appeal including, amongst other things, whether they are “persons [NAME]” under [NAME]. [ 204 ]                                The Director and [NAME] argued the decision of the Board in [NAME] was good law and that there was no reason for the Board to derogate from the decision in [NAME] which established that the onus is on [NAME] in EPO appeals to establish they are not “persons [NAME].” [NAME] asserted the Court’s decision in [NAME] did not change the Court’s decision in [NAME] nor did it create a new standard for all appeals before the Board. [185] The [NAME] [ 205 ]                                The Board appreciates the extensive submissions provided by the Parties regarding the applicability of the [NAME] . However, the Board finds the [NAME] are not determinative of who should bear the onus in the proceedings or determinative of the nature of the proceedings in these appeals. [ 206 ]                                The Board agrees with [NAME] that as the Board did not have guidance provided by the Court in [NAME] at the time the [NAME] decision was made, the Board must revisit its long-standing practice of placing onus on [NAME] in EPO appeals. Further, while [NAME] was determined in the context of a Water Act approval, after consideration of the Parties submissions the Board is of the view the principles expressed by Madame Justice Gaston with respect to the allocation of onus and the de novo nature of an approval appeal, apply equally to the issues before the Board in this Preliminary Motion. [ 207 ]                                The Board further notes that while the Court in [NAME] provided an extensive analysis of the applicable caselaw and legislation, the Court did not make a determination regarding onus or the de novo nature of an approval appeal but instead remitted the matter back to the Board for reconsideration and provided guiding principles to be considered by the Board when undertaking its reconsideration of the [NAME] appeal. [ 208 ]                                While the Director and [NAME] argued [NAME] was implicitly affirmed by [NAME] and as such, was good law, [NAME] countered that [NAME] did not implicitly affirm the [NAME] as the Court in [NAME] noted [NAME] was determined on the narrow issue of natural justice, the reasonableness of the Board’s decision on onus was not at issue and the Court mistakenly stated the Board could not substitute its decision for that of the Director . [186] [NAME] also argued the Court in [NAME] distinguished Water Act approval appeals from EPO appeals only for the purpose of making it clear that the Court in [NAME] was not bound by the [NAME]. [187] [NAME] further argued the Board’s analysis in [NAME] was distinguishable from the current matters before the Board as it improperly focused on distinguishing two differing appeal process to find the Board was not bound by the BC Supreme Court’s decision in [NAME], where it was determined by the BC Supreme Court the onus should be on the administrative decision-maker. [NAME] further noted that [NAME] also contained a material error of law as it purported to conduct a de novo review and apply a correctness standard. [NAME] argued that [NAME] brought the conclusions of the [NAME] into question and should not be applied in these appeals. [188] [ 209 ]                                [NAME] submitted that the principles of law articulated by [NAME] require the Board to consider the primacy of statutory interpretation, the type of appeal the Board is hearing and the particular circumstances of each case. [189] [NAME] argued [NAME] failed to give proper weight to the language of section 98(2) of [NAME] which allows the Board to replace [NAME] decision with that of the Board. [NAME] further argued this type of statutory language favoured a true de nov o appeal as much for an EPO appeal as it does for an approval appeal. [ 210 ]                                [NAME] further argued that the circumstances in these appeals were more like [NAME] than [NAME] as there had been a change of parties from the time the Order was issued, which included [COMPANY]., to the time of the hearing of the appeals, as [NAME] had been added as party to the appeals and [COMPANY]. had been removed, the Director was acting as a zealot advocate and the hearing was delayed at the request of the Director and [NAME] to permit the gathering of additional evidence, all of which favoured the Board conducting a hearing de novo. [ 211 ]                                Both the Director and [NAME] argued there were a similarity between the facts of these appeals and those in [NAME] and therefore [NAME] was determinative in these appeals. Both the Director and [NAME] noted that as in [NAME] : 1.                   there was information symmetry as both [NAME] had conducted environmental investigations and had provided various reports to [NAME]; 2.                   placing the onus on [NAME] upheld the integrity of the appeal process there was no screening of the statutory right to appeal an EPO as there was in an approval appeal and prevented a “floodgate” of appeals; and 3.                   it would be unfair to shift the onus to the Director at this late stage of the appeal. [190] [ 212 ]                                The Director also argued that similar to [NAME] the Director had two roles, she was an impartial decision-maker that had an investigative role and had provided [NAME] a right to be heard prior to the issuance of the Order and was also a party adverse in interest at the hearing. [191] [ 213 ]                                [NAME] also noted that like [NAME] but unlike [NAME] , the appeals were with respect to an EPO and whether [NAME] were “persons [NAME]” under [NAME]. [NAME] also argued that [NAME] did not create a new paradigm to be applied in all situations but instead related to specific circumstances that were distinguishable from [NAME] . [NAME] argued that if the Court in [NAME] was truly of the opinion that the Board’s decision in [NAME] was “flawed,” it would not have based its decision on onus squarely on distinguishing the facts before it from those in [NAME]. [192] [NAME] further stated that it was not unfair to put the onus on [NAME] as it should have been no surprise to [NAME] that they were named “persons [NAME]” as they were the owners of the Lands from which the Substance was emanating [193] and they had undertaken the exact activities the Board contemplated in [NAME] as causing an owner to become a “[NAME].” [194] [ 214 ]                                The Director and [NAME] also argued that the three additional factors raised by [NAME] that made the circumstances of these appeals like that of [NAME], were not accurate. [NAME] argued the information asymmetry did not arise because of the change in parties in [NAME] but were a result of [NAME] not being a party to the original approval which was not the case in these appeals. The Director noted that with respect to the arguments regarding change in parties, paragraph 156 and paragraph 157 of [NAME] as relied upon by [NAME], were no assistance to [NAME], as [NAME] had not established how the addition of an intervenor and the removal of a party to the appeals are a relevant factor in determining onus. [ 215 ]                                With respect to [NAME]’ characterization of [NAME] dual role, the Director argued [NAME] had not established how [NAME] statutory role was a relevant factor in establishing onus, noting paragraph 156 and paragraph157 make no reference to [NAME] statutory role and that the Director is automatically a party to an appeal of an EPO. Further, [NAME] submitted that as in [NAME] it was determined that onus fell properly on [NAME] in all appeals before the Board where the Director provides submissions on the merits. With respect to the delay that resulted due to the gathering of the additional information, [NAME] argued it did not change the fact the Director had sufficient information to issue the Order and the Director noted [NAME] have not established how [NAME] request to obtain addition technical information to inform the appeal was relevant to the assignment of onus. [ 216 ]                                [NAME] responded to the assertions regarding information symmetry made by the Director and [NAME] by stating the issue of information asymmetry was not about knowledge of the state of the Lands but rather about understanding the reasons why the Order was issued and where the Director provided no explanation of the “something more” that would make [NAME] for the pre-existing pollution, the Director should bear the onus of proving her reasoning. [NAME] also noted that [NAME] had argued that [NAME] should have guessed by ownership of the Land that they are “persons [NAME].” [195] [ 217 ]                                With respect to the integrity of the appeal process, [NAME] stated the Director and [NAME] provided no evidence to support their argument that putting the onus on the Director would open the “floodgates” of appeals and compromise the integrity of the appeal process, noting that [NAME] did not rule that a statutory right of appeal requires the onus to be placed on [NAME] but instead found that the “floodgates” argument did not apply in [NAME] . [NAME] argued placing the onus on the Director does not create undue burden on the Director as previously discussed and would enhance the enforcement and appeal process and would create a more transparent, fair and efficient system. [196] [ 218 ]                                With respect to the argument that it would be unfair to change the onus at this stage in the proceedings, [NAME] noted the prejudice that arose in [NAME] arose as a result of the issue on onus being raised by the appellant after both parties had conclude presenting evidence but that no such fairness arose in these appeals as the parties have not yet presented evidence. Further, [NAME] noted that placing onus on the Director does not determine the order of presentation at the appeals as granting the appellant the first and last word in the hearing process is a procedural safeguard ensuring the appellant has an opportunity to hear all the evidence adduced against it. [197] [NAME] also noted that the Director misunderstood the comments in [NAME], that the Board must apply its decision on onus consistently, and argued [NAME] merely stated that once the Board determines who should bear the onus in the hearing of an appeal it must be applied consistently throughout the appeal. [ 219 ]                                With respect to the argument regarding the change in parties between the issuance of the Order and the appeals, [NAME] responded to [NAME] and [NAME]’s arguments by noting that [NAME]’s participation in the appeals after the Order was issued was unlike most EPO appeals which involve two parties, and this was not a standard appeal as one party was removed and another added, both of which militate in favour of a true de novo appeal. [ 220 ]                                With respect to the arguments regarding the impartiality of the Director and [NAME] dual role, [NAME] also argued the reasoning in [NAME] was not consistent with the reality of the role of the Director in an EPO appeal. [NAME] argued the Director was not an impartial decision-maker in the context of an EPO appeal but acts as an interested party seeking to obtain compliance with its own directives and when the true dual nature of the Director as both policeman and judge is considered, [NAME] role as an interested party weighs in favour of the Director bearing the onus in these appeals. [ 221 ]                                With respect to the argument by the Director and [NAME] that the delay in the hearing was necessary to gather evidence critical to the Board’s understanding of the appeals, [NAME] argued, this was also reason to justify the Board conducting a true de novo appeal. [NAME] argued that at paragraph 156 and paragraph157 of [NAME] , the Court noted that where the Board considers new evidence that was not available to the original decision-maker, a de novo appeal should be conducted particularly in [NAME]’ view, if the evidence was so critical it deprived [NAME] of their right to be heard for over a year. [198] [ 222 ]                                [NAME] acknowledged that the nature of the appeal in [NAME] , being an appeal of an approval, was a distinguishing factor in these appeals, but argued the Board must consider the binding general principles of law articulated by the Court in [NAME] in determining the onus in all appeals. [199] [ 223 ]                                As previously noted, the Board finds the [NAME] are not determinative of who should bear the onus in these appeals. The Board notes the Parties agreed that the Court in [NAME] did not expressly overturn the [NAME] but rather distinguished the decisions from the matters before the Court in [NAME]. However, the Board does not agree with the Director and [NAME], that the failure to expressly overturn the [NAME] was an implicit affirmation of the findings . The Board is of the view that if the Court had intended to overturn the decision in [NAME] it would have expressly done so, particularly since [NAME] concerned an appeal of an EPO and the matter before the Court in [NAME] was an appeal of an approval. [ 224 ]                                Also as previously noted, the Board agrees with [NAME] that the Board should consider the guidance provided by the Court in [NAME] and must revisit its long-standing practice of placing onus on [NAME] in EPO appeals. In doing so, the Board will consider the arguments of the Parties regarding the [NAME] but in the context of the principles set out by Madame Justice Gaston in [NAME]. Applicability of the [NAME] to an EPO Appeal. [ 225 ]                                When considering the direction of the Court in [NAME], the Board notes the Court in [NAME] directly scrutinized the Board’s long-standing practice of automatically assigning onus to the appellant. [ADDRESS] found this approach unjustified, criticizing the Board’s reliance on [NAME] decisions of the Board such as [NAME] and [NAME] as being either inapplicable or “ reiterat[ing] a position without justification rooted in a statutory scheme .” [ Emphasis added by the Board.] The Board further notes that the Court directed that Board’s reasons on onus must be tethered to the statutory scheme and must engage with the guidance in [NAME] regarding the appropriateness of an onus of proof given the nature of the Board’s polycentric environmental decision making under [NAME]. [ 226 ]                                It is the Board’s view that [NAME] has directed the Board to consider the statutory architecture of [NAME] when determining where the legal burden of proof lies and whether the Board’s hearing of an EPO appeal is de novo, as [NAME] is silent on those issues. Further in doing so, the Board must consider the text, context and purpose of the relevant provisions. As stated by the Supreme Court of Canada in [NAME]: “But whatever form the interpretive exercise takes, the merits of an administrative decision-maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision-maker interprets a provision. … Where the meaning of a statutory provision is disputed in administrative proceedings, the decision-maker must demonstrate in its reasons that it was alive to these essential elements.” [200] [ 227 ]                                The Board also notes that the Court in [NAME] expressly found that the Board evaluated each of the interconnected legal concepts of onus, standard of review and de novo in a silo which resulted in an unmanageable and confusing analysis making the Board’s decision unreasonable. [ADDRESS] directed the Board to link these distinct concepts to create a coherent appeal process. [201] As previously noted, the Parties agree that the standard of review in the present appeals is correctness. [ 228 ]                                While the Court in [NAME] found the Board is not required to engage in a formalistic statutory interpretation, the Board’s decision on onus must be consistent with the text, context and purpose of the statutory scheme, citing [NAME] at paragraph 120. [ADDRESS] made this statement while emphasizing that the nature of an appeal before the Board is fundamentally determined by the statutory language. [ 229 ]                                [ADDRESS] in [NAME] found that part of the confusion in the Board reasoning was about the use of the phrase “ de novo hearing” without explaining what it means. [202] The Board is of the view that when the Board in [NAME] decisions referred to appeals before the Board as being de novo , it was not intended to mean that the Board was conducting a true de novo hearing where the Board considers the evidence afresh with no deference to the decision of the director but rather to describe, perhaps imprecisely, the Board’s power to consider new information. [ 230 ]                                When considering the text and context of [NAME], the Board notes that section 91(4) of [NAME] provides that an appellant, after receipt of an EPO generally has only 7 days to submit a notice of appeal. The [NAME], however, recognized it would be procedurally unfair to require an appellant to obtain evidence from witnesses or prepare scientific studies in support of an EPO appeal within such as short time frame. As a result, the [NAME] has provided in section 95(2)(d) of [NAME] that the Board may consider new evidence that was not before the director at the time the EPO was issued. [203] The Board notes that the Court in [NAME] , citing [NAME] , at paragraph 66 provided the following description of a true de novo hearing: “In a true de novo hearing, the reviewing tribunal makes its own decision on the issues with no regard to the proceeding before the first tribunal. This is the complete absence of deference. Like absolute deference, it is strictly speaking, not a standard of review because there is no review.” [204] [ 231 ]                                When considering the statutory scheme regarding an appeal of an EPO and whether the hearing of the appeal is de novo in nature and who should bear the onus in the appeal, the Board must consider the following provisions of [NAME]: 1.                   section 91(1)(g) provides that a person to whom a director issues an EPO may submit a notice of appeal to the Board; 2.                   section 91(7) of [NAME] states that “[a] notice of appeal initiates an appeal of the decision objected to”; 3.                   section 98(2) provides the Board the authority to “confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make …”; and 4.                   section 97, which provides the power to the Board to issue stay of a decision, states a subsection (1) that “submitting a notice of appeal does not operate to stay the decision objected to”. [ 232 ]                                When considering the text, context and purpose of [NAME] and the relevant provisions, the Board is of the view that if the [NAME] contemplated a true de novo hearing of an appeal of an EPO, the stay provisions contained in section 97 would not have been necessary because once an appeal of an EPO was filed the Board in considering the matter afresh would have no regard for the decision of the Director such that the Board would step into the shoes of the Director making the decision based on the evidence before it. [ 233 ]                                For the Board to interpret [NAME] as requiring the Board to conduct a de novo hearing of an EPO appeal, it would render the stay provisions in section 97 meaningless as there would be no decision to stay. However, as articulated by the Supreme Court of Canada in [COMPANY]. (Re) [1998] 1 SCR 27 ( [NAME]) , “it is a well established principle that the [NAME] does not intend to produce absurd results… [and] an interpretation can be considered absurd if it is illogical or incoherent, or if it is incompatible with other provisions or the with the object of legislative enactment.” [205] [ 234 ]                                Further, it is the Board’s view that this interpretation is consistent with the protective purpose of [NAME]. The decision to issue an EPO is not intended to be punitive but is intended to provide a timely and effective regulatory response issued to protect the environment and remains operative notwithstanding an appeal, unless stayed. A de novo hearing of an EPO would effectively vacate the EPO which would frustrate the protective purposes of the legislative provisions. As contemplated in [NAME] , such an interpretation would be absurd as it would not only render the stay provisions meaningless as discussed but would be incompatible with the protective purpose of [NAME]. [ 235 ]                                The Board notes the [NAME] expressly states at section 91(7) that a notice of appeal initiates an “appeal” of the “decision objected to” and at section 98(2) provides the Board the power to confirm, reverse or vary the decision appealed. If the Board were deciding afresh whether an EPO should be issued, as argued by [NAME], that would mean there would be no decision to appeal or to confirm, reverse or vary. [ 236 ]                                The Board acknowledges that [NAME] have argued that as section 98(2) provides the Board the power to make any decision that the Director whose decision was appealed could make which militates to an EPO hearing should be de novo . However, the Board is of the view that the power granted to the Board must not be read in isolation but in the context of the entire section which states, the Board has the authority to “confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make …”. It is the Board’s view that when read in its entirety, section 98(2) grants the Board the power to make any decision the Director could have made with respect to an existing decision of the Director, including cancelling the decision or varying the terms of it. [ Emphasis added by the Board.] [ 237 ]                                The Board notes [NAME] have asserted that at paragraph 157 of [NAME] , Madame Justice Gaston held that where the statutory language empowers the Board to make any decision the Director could have made, the Board must undertake a true de novo hearing without any deference to [NAME] decision. [206] The Board disagrees. [ 238 ]                                In making this assertion, [NAME] cite the Court of Appeal decision in [NAME] which was also referred to by Madame Justice Gaston in [NAME] . In [NAME], the Court considered an appeal of a decision of the Lac Ste. Anne County Development Authority to the [NAME] of Lac Ste. Anne County (the [NAME]) under the Municipal Government Act , RSA 2000, c M-26 (the Municipal Government Act ), which contained appeal provisions like those found in [NAME]. In [NAME] , the Court of Appeal found that although not expressly stated in the Municipal Government Act , the statutory hearing provisions clearly pointed to the conclusion the [NAME] hearing was a hearing de novo. [207] [ 239 ]                                While the Board acknowledges the finding of the Court of Appeal in [NAME] regarding the de novo nature of appeals before the [NAME] ([NAME]), the Board is of the view Madame Justice Gaston did not go so far as to conclude that the Minister’s ability to replace the decision of the Director with that of his own required the Board to hold a hearing de novo . Rather, Madame Justice Gaston in [NAME] found that in the matter before her, the Board in [NAME] had failed to engage with the arguments made by [NAME] regarding the de novo nature of an approval appeal. Madame Justice Gaston noted that [NAME] made arguments in their closing submissions in [NAME] that (1) there existed appellate guidance that the structure of [NAME] required the Board to conduct a true de novo hearing with no deference to the decision of the Director, and (2) the facts of [NAME] and the statutory provisions authorizing the Minister to make any decision the Director could make, also supported the requirement that the Board conduct a true de novo hearing. [208] It is the Board’s view that while finding that the Board should have considered these arguments, Madame Justice Gaston did not make a finding regarding the merits of the arguments. [ 240 ]                                Further, the Board is of the view that even if the Board considered the applicability of the Court of Appeal’s decision in [NAME] as well as the Court of Appeal’s decision in [NAME] v [NAME] ([NAME]), 2025 ABCA 34 ( [NAME] ) which was also referred to by Madame Justice Gaston at paragraph 157 in [NAME] , to this Preliminary Motion, both [NAME] and [NAME] are distinguishable as both decisions are appeals of decisions made under the Municipal Government Act to the [NAME] which operates under a different regulatory scheme and has a different statutory mandate than the Board. [ 241 ]                                Under the Municipal Government Act , the [NAME] is a final decision-maker evaluating broad, localized land-use planning decisions whereas the Board is a specialized tribunal and as noted in [NAME] is tasked with polycentric environmental decision making, balancing the multiple and varied purposes of [NAME], including the balancing of economic growth with environmental protection. Further, Board is not the final decision-maker like [NAME] but rather makes a recommendation to the Minister who makes the final decision based on the information gathered at the hearing . Unlike the adversarial nature of an appeal to [NAME], there is no winner or loser in an EPO appeal before the Board as the purpose of issuing an EPO is not, as previously noted, punitive but is to ensure effective protection of the environment. Further, unlike the Municipal Government Act , [NAME] expressly recognizes that an EPO remains in effect notwithstanding an appeal unless stayed and section 97(1) specifically states that “submitting a notice of appeal does not operate to stay the decision objected to”. [ 242 ]                                [NAME] is silent with respect to who should bear the onus in appeal, the Board notes that section 95(8) provides that the Board with the authority to set its own rules and procedures [209] and that Rule 29 of the Board’s Rules of Practice provides that a party offering evidence has the burden of introducing appropriate evidence to support its position. However, as was noted by Madame Justice Gaston, the Court in [NAME] found Rule 29 does not go so far as to justify placing the onus on [NAME]. [210] [ 243 ]                                The Board notes the Parties agreed the common law principle with respect to onus is “he who asserts must prove.” Where they disagree is as to which party is making an assertion that must be proven. [NAME] have argued it is the Director making the positive assertion and therefore should bear the onus in the appeals, whereas the Director and [NAME] have argued [NAME] are asserting a challenge of a regulatory decision and therefore bear the onus in the appeals. [ 244 ]                                The Board is of the view that because the decision to issue the Order is presumed to be a valid exercise of [NAME] statutory authority that remains operative unless stayed and the Appellant is challenging the validity of the exercise of that authority, there is no reason for the Board to depart from the common law principle of “he who asserts must prove” and that the appeals are not de novo but of an existing decision of the Director. While the Board acknowledges [NAME]’ concerns regarding [NAME] reliance on [NAME] , the Board is not applying a “blanket rule” as was the case in [NAME] but rather the Board has undertaken an analysis of the statutory scheme to come to this conclusion in accordance with the principles set out in [NAME] . [ 245 ]                                Therefore, the Board finds [NAME] bear the legal burden of adducing evidence that supports their position that the Director erred in naming them as “persons [NAME].” However, while [NAME] bear the ultimate legal burden of convincing the Board that the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied, the Board is of the view [NAME] should not bear an inflexible, unshifting evidentiary burden from the moment the appeal is filed. [ 246 ]                                In addition to considering the statutory scheme, the principles established by Madame Justice Gaston in [NAME] , direct the Board to consider the circumstances and unique context of the case before the Board including factors such as the specific parties, the issues raised, and whether there is an “information asymmetry” between [NAME] and the Director. Furthermore, as required by [NAME], the Board must temper strict adversarial concepts of onus to align with its polycentric environmental mandate, recognizing that a flexible, shifting evidentiary burden applies when an appellant establishes prima facie grounds that a director’s decision is invalid on its face or unsupported by the record. This will ensure the Board obtains all the relevant information to make the best recommendation to the Minister. [ 247 ]                                The Board is of the view that Madame Justice Gaston recognized the shifting nature of the evidentiary burden when, after considering the [NAME] decision she stated: “Even if I am wrong, and [NAME] applies and the onus falls on [NAME] to prove they are entitled to the relief sought, the Board’s decision on the point was unreasonable as the Board [in [NAME]] required [NAME] to provide both “sufficient evidence and argument to demonstrate to the Board that [NAME] approval should be reversed or varied”: … This statement ignores the possibility that an appellant could establish prima facie grounds for the Board to recommend a reversal or variance by offering no affirmative evidence so long as the appellant shows that the approval is invalid on its face or otherwise unsupported by the [NAME]. Then it would fall on the Director to provide sufficient evidence to justify the approval : see for example [NAME] v Director of Southern East Slopes and Prairie Regions, [NAME]. Re: [NAME] , 1998 ABEAB 22 at para 25.” [ Emphasis added by the Board.] [ 248 ]                                It is the Board view that although the legal onus falls on [NAME] to prove they are entitled to the relief sought, it does not permit the Director to remain silent should [NAME] establish prima facie grounds that the Order was invalid on its face or otherwise unsupported by the [NAME]. [ 249 ]                                The Board also finds guidance in this regard in the Supreme Court of Canada’s decision in Snell v Farrell , [1990] 2 SCR 311 ( [NAME] ) . While the decision in [NAME] arose in the context of civil torts, the Supreme Court confirmed the ultimate legal burden of proof remains on the party asserting the claim but also recognized that the evidentiary burden may shift where there is an asymmetry of information. The Supreme Court noted that: “…it has long been recognized that the allocation of the burden of proof is not immutable. The legal or ultimate burden of proof is determined by the substantive law "upon broad reasons of experience and fairness”: 9 Wigmore on Evidence, 2486, at p. 292. In a civil case, the two broad principles are: 1.         that the onus is on the party who asserts a proposition, usually the plaintiff; 2.         that where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it. [ 250 ]                                The Supreme Court in [NAME] found that where the facts lie particularly within the knowledge of one party, very little affirmative evidence is required to create an inference against the party holding the information, effectively shifting the evidentiary burden. As stated by Justice Sopinka in [NAME] : “Furthermore, as I observed earlier, the allocation of the burden of proof is not immutable. Both the burden and the standard of proof are flexible concepts. … The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge should weigh that evidence according to the proof.” [ 251 ]                                The Board notes that the Director and [NAME] have argued that the onus should be on [NAME] as there is no information asymmetry as in [NAME] as [NAME] have equal or greater access to environmental data regarding the Lands. [NAME] argued they do not possess [NAME] internal policy or framework used to designate them as “persons [NAME]” that would allow them to defend against the assertion they are “persons [NAME].” While the Board is of the view that it is appropriate that [NAME] bear the legal onus in these appeals because such an interpretation is consistent with the text, context and purpose of the statutory scheme, the Board is not of the view that applying a rigid, unshifting burden to [NAME] is appropriate as that would be procedurally unfair in the case of information asymmetry. [ 252 ]                                The Board is of the view that it is contrary to the principles of [NAME] to require [NAME] to prove a “negative” and if [NAME] can establish they lack information regarding [NAME] underlying rationale or policy framework applied in finding [NAME] “persons [NAME],” then the evidentiary burden shifts to the Director to provide evidence of the applicable policy or framework and demonstrate why it was reasonably and correctly applied to [NAME]. Upon the Director producing this justification, the evidentiary burden would be on [NAME] to challenge [NAME] evidence and to ultimately persuade the Board the decision of the Director to issue the Order should be reversed (cancelled) or varied. [ 253 ]                                The Board also acknowledges the Parties submissions regarding the integrity of the appeal process and the possibility of there being a “floodgate” of appeals if the Board found the legal onus was that of the Director. The Board is of the view that it is the text, context and purpose of the statutory scheme which determines the nature of an EPO appeal and not concerns regarding the opening of hypothetical floodgates. [ 254 ]                                The Board further notes the Parties provided several competing arguments regarding the impact of the context of the appeals on onus and the de novo nature of an appeal. The Board is of the view that in considering these arguments, none are sufficient to change the Board’s interpretation of the statutory scheme but rather impact the shifting nature of the evidentiary burden. [ 255 ]                                The Board is of the view, that if the change in Parties creates information asymmetry the evidentiary burden may shift. As stated by the Supreme Court in [NAME], w here the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it. This approach is consistent with Rule 29 of the Board’s Rules of Procedure which requires a party to introduce appropriate evidence to support its position. The Board notes that [NAME] referred to paragraph 156 of [NAME] in this regard. At paragraph 156, Madame Justice Gaston warned the Board about applying strictly adversarial principles. The Board is of the view, that by recognizing the shifting nature of the evidentiary burden as well as allowing the intervenors to participate in the hearing, the Board is recognizing the polycentric nature of the Board’s decision making and the purpose for which the hearing is held, being to obtain the relevant information necessary for the Minister to make his decision. [ 256 ]                                With respect to [NAME]’ argument regarding the dual role of the Director as an investigator and a decision-maker, the Board is of the view this characterization of [NAME] administrative role is not relevant to the Board’s determination of onus as the [NAME] provided the Director these dual roles to ensure effective protection of the environment and in these roles the Director is not acting as private litigant but is discharging a statutorily delegated duty which does not make the Director a biased adversary requiring the Board to depart from the standard legal burden of “he who asserts must prove.” [ 257 ]                                With respect to [NAME]’ argument that onus does not determine the order of presentation, the Board is of the view that it is unnecessary for the [NAME] to consider these arguments because the Board has determined that [NAME] bear the legal onus. As [NAME] have had benefit of having had onus in the preliminary matters, the hearing will proceed in accordance with the Board’s Rules of Practice. [ 258 ]                                The Board finds that in hearing of the appeals of the Order, the Board is not conducting a hearing de novo but is conducting an appeal of [NAME] decision to issue the Order and further, while the Board is not making the decision afresh, the Board may consider new information that was not previously before the Director. [ 259 ]                                The Board further finds that while the evidentiary onus may shift between the Parties as discussed above, the Board finds the legal onus in the appeals is on [NAME] to provide sufficient, reliable and relevant evidence to prove on the balance of probabilities the Order should be confirmed, reversed (cancelled) or varied.

7.

DECISION [ 260 ]                                The Board finds the legal onus is on [NAME] in the appeals to persuade the Board the decision of the Director to issue the Order should be confirmed, reversed (cancelled) or varied. [ 261 ]                                The Board finds the hearing of the appeals is not a de novo hearing where the Board hears the evidence afresh with no deference to the decision of the Director but rather a hearing of the appeals where the Board has the authority under section 95(2)(d) to consider additional evidence not before the Director when he made his decision to issue the Order. [ 262 ]                                The Board finds while the legal onus is on [NAME], the evidentiary burden may shift between the Parties as any Party offering evidence shall have the burden of introducing appropriate evidence to support its position. Dated on June 19, 2026, at Edmonton, [NAME]. -original signed- __________________ [NAME] Board [NAME] [1]        The Board notes [COMPANY]. was removed as party to the Order on September 30, 2024, and did not provide submissions regarding the Preliminary Motion but has not withdrawn its Notice of Appeal. [2]        Order at page 5. [3]        Board’s Decision Letter dated May 29, 2026. [4]        Board’s Letter Decision dated May 29, 2026. [5]        Board’s Letter Decision dated May 29, 2026. [6]        Order at paragraph 12. [7]        Document Production: [COMPANY] et al v Director, Regulatory Assurance Division South, [NAME] , 2026 ABEAB 11. [8]        The Board notes the hearing issues were set by the Board on July 9, 2024, and reconfirmed the Board on September 4, 2024. [9]        [NAME]’ Initial Submission at page 1 and 3. [10]      [NAME]’ Initial Submission at page 1, citing [NAME] at paragraph 155. [11]      [NAME]’ Initial Submission at page 1, citing [NAME] at paragraph 148 and 157, and [NAME] v [NAME] (County) [NAME] , 2006 ABCA 264 ( [NAME] ), at paragraph 9. [12]      [NAME]’ Initial Submission at page 1, citing [NAME] at paragraph 141, citing [COMPANY] v [NAME] , 2018 ABCA 113. [13]      [NAME]’ Initial Submission at page 2. [14]      [NAME]’ Initial Submission citing [NAME] at paragraph 124 and 128. [15]      [NAME]’ Initial Submission citing [NAME] at paragraph 129. [16]      [NAME] at paragraph 30 where the Board discusses [NAME]’ reliance on Re: Andres Wines (BC) Ltd and British Columbia Marketing Board (1987 ), 41 D.L.R. (4th) 368 (BCSC) where the Court found the burden of proof in an appeal of the administrative decision must be placed upon the administrative decision-making body. [17]      [NAME]’ Initial Submission at page 2. [18]      Section 98(2) of [NAME] provides: “(2)         In its decision, the Board may (a)           confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make, and (b)           make any further order the Board considers necessary or the purpose of carrying out the decision.” [19]      [NAME]’ Initial Submission at page 2. [20]      [NAME]’ Initial Submission at page 2, citing [NAME] at paragraph 53. [21]      [NAME]’ Initial Submission at page 3, citing [NAME] at paragraphs 156 and 157. [22]      [NAME]’ Initial Submission at page 3. [23]      [NAME]’ Initial Submission at page 3, citing [NAME] at paragraph 129 and 155. [24]      [NAME]’ Initial Submission at page 3. [25]       [NAME]’ Initial Submission at page 4, citing [COMPANY] et al v Director, Regional Compliance, South Saskatchewan Region, [NAME], 2020 ABEAB 6 ( [NAME]) at paragraph 263 through paragraph 265. [26]      [NAME]’ Initial Submission at page 4. [27]      [NAME]’ Initial Submission at page 4, citing [NAME] v Canada , 2007 ABCA 234 ( [NAME]) at paragraph 8. [28]      Rule 29 of the Rules of Practice states: “Any Party offering evidence shall have the burden of introducing appropriate evidence to support its position. Where there is conflicting evidence, the Board will decide which evidence to accept and will generally act on the preponderance of the evidence.” [29]      [NAME]’ Initial Submission at page 4. [30]      [NAME]’ Initial Submission at page 4. [31]      [NAME]’ Initial Submission at page 4 [32]      [NAME]’ Initial Submission at page 5. [33]      [NAME]’ Initial Submission at page 5. [34]      [NAME]’ Initial Submission at page 5. [35]      [NAME]’ Initial Submission at page 5, citing [NAME] at paragraph 161. [36]      Director’s Response Submission at page 1, citing [NAME] at paragraph 49. [37]      Director’s Response Submission at page 2, citing [NAME] at paragraph 30 and [NAME] & [NAME]., [NAME], Practice and Procedure Before Administrative Tribunals , “Burden of Proof” at 22:25. [38]      Director’s Response Submission at page 2, citing [NAME] v Canada (Commissioner of Competition), 2017 FCA 236, [2018] 3 FCR 563 at paragraph 144. [39]      Director’s Response Submission at page 2, citing [NAME] at paragraph 78 through paragraph 81. [40]      Notice of Appeal dated August 4, 2023, Schedule 1 - EAB 23-052, Notice of Appeal dated August 4, 2023, Schedule 1 – EAB 23-054. [41]      Notice of Appeal dated August 4, 2023, Schedule 1 - EAB 23-052, Notice of Appeal dated August 4, 2023, Schedule 1 – EAB 23-054. [42]      Director’s Response Submission at page 3. [43]      Director’s Response Submission at page 4, citing [NAME] at paragraph 53 through paragraph 55 and paragraph 117, and [NAME] at paragraph 121 through paragraph 129. [44]      [NAME] at paragraph 121, citing [NAME] at paragraph 53. [45]      [NAME] at paragraph 122 and paragraph 126, citing [NAME] at paragraph 54. [46]      [NAME] at paragraph 126. [47]      [NAME] at paragraph 121. [48]      [NAME] at paragraph 124, citing [NAME] at paragraph 55. [49]      [NAME] at paragraph 121, citing [NAME] at paragraph 54. [50]      [NAME] at paragraph 121, citing [NAME] at paragraph 53. [51]      [NAME] at paragraph 121 citing [NAME] at paragraph 53, [52]      Director’s Response Submission at page 4, citing [NAME] at paragraph 125. [53]      Director’s Response Submission at page 4, citing [NAME]’ Initial Hearing Submission at paragraph 2 and paragraph 13. [54]      [NAME]’ Initial Hearing Submission at paragraph 27. [55]      Director’s Response Submission at page 5, citing [NAME] at paragraph 122 and paragraph 126, citing [NAME] at paragraph 54. [56]      Director’s Response Submission at page 5, citing [NAME] at paragraph 126 and paragraph 127. [57]      Director’s Response Submission at page 5, citing [NAME] at paragraph 53. [58]      Director’s Response Submission at page 5 and page 6, citing [NAME] at paragraph 163. [59]      Director’s Response Submission at page 6, citing [NAME] at paragraph 121 citing [NAME] at paragraph 53. [60]      [NAME], Tab 183 and Tab 184 and [NAME] Hearing Submission at paragraph 22. [61]      [NAME] at Tab 180. [62]      Director’s Response Submission at page 6 and page 7, citing [NAME] at Tab 180 and [NAME] Hearing Submission at paragraph 123. [63]      Director’s Response Submission at page 7. [64]      Director’s Response Submission at page 7. [65]      Director’s Response Submission at page 7, citing Environmental Appeal Regulation AR 114/93 (the Regulation ) at section 1(f)(ii) and [NAME] at paragraph 243. [66]      Director’s Response Submission at page 7 and page 8. [67]      Director’s Response Submission at page 8. [68]      Director’s Response Submission at page 8. [69]      [NAME]’ Initial Submission at page 5. [70]      Director’s Response Submission at page 8. [71]      [NAME] at Tab 184. [72]      [NAME] at Tab 180. [73]      [NAME]’ Initial Submission at page 5. [74]      Letter from Counsel for the Director dated February 21, 2025, providing an update to the Board in response to the Board’s February 12, 2025, request for an update. [75]      Director’s Response Submission at page 9. [76]      The Board notes the Director on page 9 of [NAME] stated: “In response to [NAME]’ complaints on page 4 of [NAME]’ submissions, [NAME] had a full opportunity at that time to adduce evidence” in respond to [NAME] written hearing submission … but did not do so.” The Board further notes Director failed to provide any detail as to which of the assertions found on page 4 of [NAME]’ Initial Submission she is referring to. However, as the comment by the Director refers to the opportunity to respond to [NAME] Hearing Submission, the Board assumes the Director is referring to [NAME] “complaint” that the first time they were aware of [NAME] reasoning was when they received [NAME] Hearing Submission. [77]      Director’s Response Submission at page 9. [78]      Intervenor’s Response Submission at page 1. [79]      Intervenor’s Response Submission at page 5. [80]      [NAME] at paragraph 12. [81]      Intervenor’s Response Submission at page 1, citing [NAME] at paragraph 110. [82]      Intervenor’s Response Submission at page 1 and page 2, citing [NAME] at paragraph 49. [83]      Intervenor’s Response Submission at page 2, citing [NAME] at paragraph 124. [84]      Intervenor’s Response Submission at page 2, citing [NAME] at paragraph 124. [85]      Intervenor’s Response Submission at page 2. [86]      Intervenor’s Response Submission at page 2, citing [NAME] at paragraph 125. [87]      Intervenor’s Response Submission at page 2, citing [NAME] at paragraph 126. [88]      Intervenor’s Response Submission at page 2, citing [NAME] at paragraph 127. [89]      Intervenor’s Response Submission at page 2. [90]      Intervenor’s Response Submission at page 3. The Board notes [NAME] referred the Board to the various reports prepared by [NAME] and found in the [NAME] at Tab 46 through Tab 48, Tab 51 through 53, Tab 68, Tab 72, Tab 75, Tab 137, Tab 139, Tab 141, Tab 161 through Tab 164, Tab167 and Tab 176. [91]      Intervenor’s Response Submission at page 3, citing [NAME], Tab 91 (Letter dated April 10, 2018), Tab 152 (Letter dated October 25, 2019), and Tab 165 (Letter dated February 11, 2024). [92]      Intervenor’s Response Submission at page 3. [93]      Intervenor’s Response Submission at page 3. [94]      Section 112 of [NAME] provides: “112(1)  Where a substance that may cause, is causing or has caused an adverse effect is released into the environment, the [NAME] for the substance shall , as soon as that person becomes aware of or ought to have become aware of the release” (a)                  take all reasonable measure to: (i)                   repair, remedy and confine the effects of the substance (ii)                 remediate, manage, remove or otherwise dispose of the substance in such a manner as to prevent an adverse effect or further adverse effect, and (b)                 restore the environment to a condition satisfactory to the Director.” [95]      Intervenor’s Response Submission at page 3, citing [NAME] at section 1(tt). [96]      Intervenor’s Response Submission at page 3 and page 4, citing the technical reports of [NAME] included in the [NAME] at Tab 46 through Tab 48, Tab 51 through Tab 53, Tab 68, Tab 72, Tab 75, Tab 137, Tab 139, Tab 141, Tab 161 through Tab 164, Tab167 and Tab 176. [97]      Intervenor’s Response Submission at page 4, citing [NAME] at paragraph 256 and paragraph 274. [98]      Intervenor’s Response Submission at page 4. [99]      Intervenor’s Response Submission at page 4. [100]     Intervenor’s Response Submission at page 4 and page 5. [101]     Intervenor’s Response Submission at page 5. [102]     [NAME]’ Rebuttal Submission at page 1. [103]     [NAME]’ Rebuttal Submission at page 1, citing [NAME] at paragraph 143 and paragraph 147. [104]     [NAME]’ Rebuttal Submission at page 2, citing [NAME] at paragraph 124. [105]     [NAME]’ Rebuttal Submission at page 2, citing [NAME] at paragraph 128. [106]     [NAME]’ Rebuttal Submission at page 2 citing [NAME] at paragraph 129, paragraph 148, and paragraph 160. [107]     [NAME]’ Rebuttal Submission at page 2, citing [NAME] at paragraph 131. [108]     [NAME]’ Rebuttal Submission at page 2 citing [NAME] at paragraph 131. [109]     [NAME]’ Rebuttal Submission at page 2. [110]     [NAME]’ Rebuttal Submission at page 3, citing [NAME] at paragraph 8. [111]     [NAME]’ Rebuttal Submission at page 3. [112]     [NAME]’ Rebuttal Submission at page 3 and page 4, citing [NAME] at paragraph 264 and paragraph 265. [113]     [NAME]’ Rebuttal Submission at page 4. [114]     [NAME]’ Rebuttal Submission at page 4. [115]     [NAME]’ Rebuttal Submission at page 4. [116]     [NAME] at section 1(vi). [117]     [NAME]’ Rebuttal Submission at page 5. [118]     [NAME]’ Rebuttal Submission at page 5. [119]     [NAME]’ Rebuttal Submission at page 5. [120]     [NAME]’ Rebuttal Submission at page 5. [121]     [NAME]’ Rebuttal Submission at page 6. [122]     [NAME]’ Rebuttal Submission at page 6, citing [NAME] at Tab 180. [123]     [NAME]’ Rebuttal Submission at page 6. [124]     [NAME]’ Rebuttal Submission at page 6. [125]     [NAME]’ Rebuttal Submission at page 7. [126]     [NAME]’ Rebuttal Submission at page 7, citing [NAME] at section 196, section 198 and section 204. [127]     [NAME]’ Rebuttal Submission at page 7. [128]     [NAME]’ Rebuttal Submission at page 7. [129]     [NAME]’ Rebuttal Submission at page 7, citing [NAME] at Tab 8. [130]     [NAME]’ Rebuttal Submission at page 7. [131]     [NAME]’ Rebuttal Submission at page 7 and page 8. [132]     [NAME]’ Rebuttal Submission at page 8. [133]     [NAME]’ Rebuttal Submission at page 8, citing [NAME] at paragraph 129. [134]     [NAME]’ Rebuttal Submission at page 8. [135]     [NAME]’ Rebuttal Submission at page 8. [136]     [NAME]’ Rebuttal Submission at page 8, citing [NAME] , 2008 SCC 9 at paragraph 90. [137]     [NAME]’ Rebuttal Submission at page 8 and 9. [138]     [NAME]’ Rebuttal Submission at page 9. [139]     [NAME]’ Rebuttal Submission at page 9. [140]     [NAME]’ Rebuttal Submission at page 9. [141]     [NAME]’ Rebuttal Submission at page 9 and page 10. [142]     [NAME]’ Rebuttal Submission at page 10. [143]     [NAME]’ Rebuttal Submission at page 10, citing [NAME] at paragraph 148. [144]     [NAME]’ Rebuttal Submission at page 10. [145]     [NAME] at section 97(2) provides: “97(2)           The Board may, on the application of a party to a proceeding before the Board, stay a decision in respect of which a notice of appeal has been submitted.” [146]     Section 95(8) of [NAME] provides that “[s]ubject to the regulations, the Board may establish its own rules and procedures for dealing with matters before it.” [147]     [NAME] at paragraph 124. [148]     [NAME] at paragraph 125. [149]     [NAME] at paragraph 127, citing [NAME] at paragraph75 to paragraph 105. [150]     [NAME] at paragraph 126 and paragraph 127. [151]     [NAME] at paragraph 128. [152]     [NAME] at paragraph 129. [153]     [NAME] at paragraph 108, citing [NAME] at paragraph 292. [154]     [NAME] at paragraph 131. [155]     [NAME] at paragraph 130 and paragraph 163. [156]     [NAME] at paragraph 131. [157]     [NAME] at paragraph 134, citing [NAME] v [COMPANY]/Executive Committee , 2019 ABQB 335 at paragraph 4 through paragraph 8. [158]     [NAME] at paragraph 65. [159]     [NAME] at paragraph 136 and paragraph 138. [160]     [NAME] at paragraph 141 . [161]     [NAME] at paragraph 141. [162]     [NAME] at paragraph 142 and paragraph 147. [163]     [NAME] at paragraph 148.The Board notes the Court in [NAME] cited paragraph 120 of Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 ( [NAME] ) which states: “120              But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. … Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.” [164]     [NAME] at paragraph 148 and paragraph 149 [165]     [NAME] at paragraph 150, citing [NAME] at paragraph 140 and at paragraph 151 and paragraph 152. [166]     [NAME] at paragraph 154 referring to section 91(1) of [NAME]. [167]     [NAME] at paragraph 155, citing [NAME] at paragraph 138 which states: “A word about onus. The Board cited its “Burden of Proof” rule (Rule 29) and found that [NAME] had not discharged its onus to prove that it is or will be directly affected by [NAME] decision. The onus on the would-be appellant to show that he or she is directly affected is an adversarial principle imported from our legal system. It is not to be ignored but it may not always be entirely appropriate for poly-centric environmental decision-making under an Act which has purposes as many and varied purposes as those which the [NAME] has declared in section 2 of [[NAME]].” [168]     [NAME] at paragraph 156. [169]     [NAME] at paragraph 157. [170]     [NAME] at paragraph 157. [171]     [NAME] at paragraph 158 to paragraph160. [172]     [NAME] at paragraph 161. [173]     [NAME] at paragraph 163. [174]     [NAME]’ Initial Submission at page1 and page 3 and [NAME]’ Rebuttal Submission at page 1. [175]     [NAME]’ Initial Submission at page 1 citing [NAME] at paragraph 155 and [NAME] at paragraph 9. [176]     [NAME]’ Initial Submission at page 3, citing [NAME] at paragraph 129 and 155. [177]     [NAME]’ Rebuttal Submission at page 3 and page 4. [178]     [NAME]’ Initial Submission at page 4, citing [NAME] at paragraph 8. [179]     [NAME]’ Initial Submission at page 4. [180]     [NAME]’ Initial Submission at page 2. [181]     Director’s Response Submission at page 1, citing [NAME] at paragraph 49 and [NAME]’s Response Submission at page 1. [182]     Director’s Response Submission at page 2, citing [NAME] at paragraph 30 and [NAME] & [NAME], Practice and Procedure Before Administrative Tribunals, “Burden of Proof” (22:25). [183]     Director’s Response Submission at page 2, citing [NAME] v Canada (Commissioner of Competition), 2017 FCA 236, [2018] 3 FCR 563 at paragraph 144. [184]     Director’s Response Submission at page 2, citing [NAME] at paragraph 78 through paragraph 81. [185]     Director’s Response Submissions at page 4 and Intervenor’s Response Submission at page 5. [186]     [NAME]’ Rebuttal Submission at page 2, citing [NAME] at paragraph 1124. [187]     [NAME]’ Initial Submission at page 2. [188]     [NAME]’ Rebuttal Submission at page 2, citing [NAME] at paragraph 128. [189]     [NAME]’ Initial Submission at page 2 and [NAME]’ Rebuttal Submission at page 2. [190]     Director’s Response Submission at page 4 to page 6. [191]     Director’s Response Submission at page 5 to page 7. [192]     Intervenor’s Response Submission at page 2 and page 3. [193]     Intervenors’ Response Submission at page 4. [194]     [NAME]’ Rebuttal Submission at page 7. [195]     [NAME]’ Rebuttal Submission at page 5. [196]     [NAME]’ Rebuttal Submission at page 5 and 6. [197]     [NAME]’ Rebuttal Submission at page 8 and 9. [198]     [NAME]’ Response Submission at page 8. [199]     [NAME]’ Rebuttal Submission at page 2 citing [NAME] at paragraph 129, paragraph 148, and paragraph 160. [200]     [NAME] at paragraph 120. [201]     [NAME] at paragraph 131. [202]     [NAME] at paragraph 132. [203]     Section 95(2)(d) provides: “(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; …” [204]     [NAME] at paragraph 141. [205]     [NAME] at paragraph 27, [206]     [NAME] at paragraph 157 . [207]     [NAME] at paragraph 9 and paragraph 10. [208]     [NAME] at paragraph 157. [209]     Section 95(8) of [NAME] states: “95(8)    Subject to the regulations, the Board may establish its own rules and procedures for dealing with matters before it.” [210]     [NAME] at paragraph 140.