Environmental Appeals Board Grants Motion for Witness Production

2026 ABEAB 11                                                                                Appeal No. 23-053-055 – ID1 [NAME] BOARD Document Production Decision Date of Decision - May 26, 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 EPEA Protection Order No. EPO-EPEA-40679 to [COMPANY]., [NAME] and [NAME]. Cite as:            Document Production: [COMPANY] et al v Director, Regulatory Assurance Division South, [NAME] , 2026 ABEAB 11. BEFORE: [NAME], Board Chair 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 a Preliminary Motion for the production of documents and witnessed related to the appeals of Environmental Protection Order No. EPO-EPEA-40679, as amended, (the Order) issued under the Environmental Protection and Enhancement Act by the Director, Regulatory Assurance Division South, [NAME] (the Director). 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 from previous drycleaning facilities on lands legally described as Plan 1423LK, Block 47 and Plan 1423LK, Block 46 (the Lands) prior to 2009. The Lands are located at 10 th Avenue S.W. in the City of [NAME]. has owned the Lands since 2009. [NAME] is the sole director for [NAME]. and [COMPANY]. [COMPANY]., [NAME] and [NAME]. filed appeals with the Board of the Director’s decision to issue the [COMPANY]. (QLT), applied for and was granted intervenor status in the appeals. QLT 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 May 11, 2026, [NAME] filed a Preliminary Motion requesting the Board issue a subpoena to [NAME] ([NAME]) to produce the following two documents and their authors at the hearing of the appeals:

1.                   An unredacted copy of the May 20, 2025 letter authored by [NAME], P. Geol., Contaminant Hydrogeologist, [NAME] (the [NAME]); and 2.                   An unredacted copy of the March 26, 2025 letter authored by [NAME], Manager, [NAME] and [NAME] (the [NAME]). On May 12, 2026, the Director provided an initial response (the Director’s Initial Response) to the Board with respect to [NAME]’ Preliminary Motion for document production stating among other things, that unredacted copies of the [NAME] and the [NAME] (the Letters) were publicly available on the Environmental Records Viewer. The Board acknowledged receipt of the Director’s Initial Submission and set a process to receive submissions from [NAME], the Director and QLT regarding the Preliminary Motion. The Board received submissions from the Director and a reply submission from [NAME]. QLT did not file any submissions with respect to the Preliminary Motion. After considering the parties submissions, the Board granted [NAME] motion for document and witness production in part. The Board found it unnecessary to grant [NAME]’ motion for document production as the Letters were publicly available on the Environmental Records Reviewer. However, pursuant to section 4 of the Public Inquiries Act , the Board directed [NAME] to produce [NAME] and [NAME] as witnesses at the hearing of the appeals as they were the best persons available to speak to the Letters. Subpoenas will be issued to [NAME] and [NAME]. The Board notes the Director provided extensive submissions regarding the admissibility of the Letters as evidence at the hearing. The Board determined it was premature in a procedural motion regarding document production to make a decision with respect to the admissibility of the Letters at the hearing of the appeals. The admissibility of the Letters will be decided in the context of the merits hearing. TABLE OF CONTENTS 1.      INTRODUCTION .. 6 2.

BACKGROUND .. 8 3.      MOTION .. 9 4.      ISSUE .. 9 5.      SUBMISSIONS . 9 5.1.           [NAME] – the Preliminary Motion . 9 5.2.           Director 13 5.2.1.      Director’s Initial Response . 13 5.2.2.      Director’s Submission . 13 5.3.           [NAME]’ Reply Submission . 19 6.      ANALYSIS . 24 7.

DECISION .. 29 1.                                          INTRODUCTION [ 1 ]                                        This is the decision of the Environmental Appeals Board (the Board) regarding a preliminary motion for the production of documents and witnesses relating to the appeals of Environmental Protection Order No. EPO-EPEA-40679, as amended, (the Order) issued by the Director, Regulatory Assurance Division South, [NAME] (the Director). [ 2 ]                                        The Order related to a historic release of tetrachloroethylene (the Substance) from previous drycleaning facilities on lands legally described as Plan 1423LK, Block 47 and Plan 1423LK, Block 46 (the Lands). [1] The Order was originally issued to [COMPANY]., [NAME], and [NAME]. ([NAME]), naming them each a person responsible for the Substance and directing remedial action to be taken to delineate and manage the Substance on the Lands and on adjacent lands to which the Substance had migrated (the Off-Site Lands). [2] [ 3 ]                                        The Lands were purchased by [NAME] in 2009 decades after the Substance was released to the environment on the Lands. [NAME] is the sole director for 12-[COMPANY]. [ 4 ]                                        [COMPANY]., [NAME] and [NAME] filed appeals with the Board of the Director’s decision to issue the Order. The owner of the lands immediately east of the Lands, [COMPANY]. (QLT) applied for and was granted intervenor status in the appeals. [ 5 ]                                        On September 30, 2024, the Order was amended removing [COMPANY]. from the Order. [ 6 ]                                        The Board scheduled a hearing of the appeals from June 23 to 25, 2026. [ 7 ]                                        On May 11, 2026, the [NAME] and [NAME] ([NAME]) filed a preliminary motion requesting the Board issue a subpoena to [NAME] ([NAME]) to produce the following two documents and their authors at the hearing of the appeals (the Preliminary Motion): 1.                   an unredacted copy of the May 20, 2025 letter authored by [NAME], P. Geol., Contaminant Hydrogeologist, [NAME] (the [NAME]); [3] and 2.                   an unredacted copy of the March 26, 2025 letter authored by [NAME], Manager, [NAME] and [NAME] (the [NAME]). [4] [ 8 ]                                        By letter dated May 12, 2026, the Director provided an initial response (the Director’s Initial Response) to the Board with respect to the Preliminary Motion advising, among other things, that the [NAME] and the [NAME] (the Letters) were publicly available on the Environmental Records Viewer. [5] The Board acknowledged receipt of the Director’s Initial Response and set up a process to receive submissions from the Director, [NAME] (the Parties) and QLT. [ 9 ]                                        The Board received submissions from the Parties. QLT did not file any submissions with respect to the Preliminary Motion. [ 10 ]                                    After considering the written submissions of the Parties, the Board granted [NAME]’ Preliminary Motion in part. [ 11 ]                                    The Board found it unnecessary to grant [NAME] motion to produce the Letters as the Letters were publicly available on the Environmental Record Viewer. The Board granted [NAME]’ motion to require [NAME] to produce the authors of the Letters, [NAME] and [NAME] as witnesses at the hearing of the appeals. The Board found [NAME] and [NAME] were the best persons to speak to the Letters at the hearing of the appeals. The Board directed the [NAME] produce [NAME] and [NAME] as witnesses at the hearing. Subpoenas will be issued for [NAME] and [NAME]. [ 12 ]                                    The Board noted the Director provided extensive submissions in this preliminary matter regarding the admissibility of the Letters as evidence at the hearing. The Board determined it was premature in a procedural motion for document production to make a decision regarding admissibility of the Letters as evidence at the hearing of the appeals.

Accordingly, the Board determined it would not rule on the admissibility of these documents prior to the hearing on the merits.

2.

BACKGROUND [ 13 ]                                    On August 1, 2023, the Director issued the Order to [NAME] relating to the [NAME] and delineation of the historic release of the Substance on the Lands. On December 19, 2023, and September 30, 2024, the Director issued amendments to the Order. [ 14 ]                                    The Lands were purchased by [NAME] in 2009 and had been subject to a release of the Substance from previous drycleaning facilities prior to that time. [ 15 ]                                    Since 2009, various [NAME] actions were undertaken at the Lands, and various reports were provided to [NAME] by [NAME]’ environmental consultants regarding the Substance on the Lands and its migration to the Off-Site Lands. The Off-Site Lands subject to contamination by the Substance include a total of four properties in the vicinity of the Lands, one of which was owned by QLT. [6] [ 16 ]                                    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 to [NAME] pursuant to section 113 of the E nvironmental Protection and Enhancement Act , RSA 2000, c E-12 (EPEA) naming each of [NAME] as “persons responsible” under section 1(tt) of EPEA. [7]

3.                                          MOTION [ 17 ]                                    On May 11, 2026, [NAME] filed the Preliminary Motion with the Board requesting the Board require the production of the Letters and that [NAME] and [NAME] at the hearings of the appeals. In the [NAME] also submitted in the alternative, if the Director agreed to produce the Letters and conceded their admissibility, [NAME] would not require the authors of the Letters to attend and provide oral evidence at the hearing. [ 18 ]                                 On May 12, 2026, the Director provided the Board the Director’s Initial Response, receipt of which was acknowledged by the Board on May 14, 2024. The Board set a process to receive submissions from the Parties and QLT. [ 19 ]                                 On May 15, 2026, the Board received submissions from the Director regarding the Preliminary Motion (the Director’s Submission). [ 20 ]                                 On May 20, 2026, the Board received reply submissions from [NAME] regarding the Preliminary Motion ([NAME]’ Reply Submission).

4.                                          ISSUE [ 21 ]                                    The issue before the Board is whether the Board should compel [NAME] to produce unredacted copies of the Letters and their authors, [NAME] and [NAME], at the hearing of the appeals.

5.                                          SUBMISSIONS [ 22 ]                                    The Board has considered the written submissions of the Parties and has summarized the relevant information for the purposes of this decision. 5.1.                                     [NAME] – the Preliminary Motion [ 23 ]                                    [NAME] requested the Board issue a subpoena to [NAME] to produce the Letters and their authors at the hearing of the appeals. [NAME] further requested the subpoenas be issued to the authors of the Letters personally, noting that if the Director would produce the unredacted Letters and concede their admissibility then [NAME] would not require the authors of the Letters to attend the hearing to give oral evidence. The Board’s Power to Issue Subpoenas [ 24 ]                                    [NAME] submitted that the Board has all the powers of a commissioner under the Public Inquiries Act , RSA 2000, c P-39 (the Public Inquiries Act) , [8] and therefore has the power to require any person to give evidence or produce documents at a hearing when that person’s evidence or documents are required for the full investigation of the matters at issue in an appeal. [9] [ 25 ]                                    [NAME] cited the Board’s decision in [COMPANY] v Director, Enforcement and Monitoring, Bow Region, Regional Services, [NAME] , 2001 ABEAB 64 ( [NAME] ) and submitted that when the Board is determining whether to exercise its powers to compel production of documents,, that the Board must consider the following principles:

1.                   Any documents that the Board compels to be produced must be in the possession of the witness, if available, or the next best witness, and the Board requires him or her to attend and testify.

2.                   Any documents that the Board compels to be produced must be “…required for the full investigation of the matters into which … [the Board is] appointed to inquire.” The documents that the Board compels to be produced must be necessary for the Board to consider the subject matter of the appeal before it. [ 26 ]                                    The documents must be relevant to the matters before the Board. They must be related to, connected with, or have a nexus with the appeal before the Board. [10] [NAME] submitted that when a request to the Board for production of a record in the possession of [NAME], the bar to be met is low. [NAME] argued they have a near absolute right to review any records in the possession of [NAME] that may be relevant [11] and denying an appellant full access to relevant records in the possession of [NAME] is a breach of the appellant’s fundamental rights to procedural fairness and natural justice. [12] [ 27 ]                                    Therefore, [NAME] submitted that if the records in the possession of [NAME] are “ potentially relevant and necessary to the issues that the Board is considering in the context of the appeal …” [13] the Board must order their production. [ Emphasis added by [NAME].] Application to these Appeals [ 28 ]                                    [NAME] stated they were requesting a subpoena requiring [NAME] to produce unredacted versions of the Letters, noting that the Letters were authored by [NAME] employees to current owners of historically [NAME] land and expressly advised those current owners that: 1.                   the current landowner is not responsible for the release of a substance onto their lands before they became the owner; 2.                   [[NAME]] is seeking to engage the party responsible for the initial release to address both on and off-site management of the substance; 3.                   the current landowners are not considered persons responsible for the substance; 4.                   [[NAME]] does not have specific requirements for risk management or [NAME] where the property was [NAME] by a previous owner; 5.                   site-specific exposure controls are a matter to be addressed between the landowner and the local development authority; 6.                   the landowners’ responsibility with respect to the handling of excavated [NAME] soil is to ensure it is properly handled and disposed of; 7.                   the landowners are considered to have “administrative control” of the substance and should take steps to “prevent access to the contamination;” and 8.                   the landowners would only become a person responsible for a substance if the landowner’s “activities at the site caused an adverse effect.” [ 29 ]                                    [NAME] argued the Letters were relevant to these appeals because they directly contradicted the position taken by the Director in these appeals. [ 30 ]                                    Despite conceding that [NAME] were not responsible for the historical release of the Substance into the environment, [NAME] noted the Director had argued in her initial hearing submissions (the Director’s Hearing Submission) that [NAME] are persons responsible under section 113 of the EPEA because they: 1.                   “adopted the nuisance” when [NAME] purchased the Lands; [14] 2.                   are the “owner of the dense non aqueous phase liquid (DNAPL) on the Lands;” [15] and 3.                   took charge of management and control of the Substance through their administrative efforts to limit public exposure to the pre-existing historic contamination. [16] [ 31 ]                                    [NAME] argued the Letters are highly relevant to both the substantive issues in the appeals and the Director’s liability for costs because the Letters demonstrated that the Director’s position in this hearing is contrary to existing law and to [NAME]’s own internal understanding and application of that law. [17] [NAME] submitted this clear and direct contradiction far exceeds the low bar of potential relevance to the issues in these appeals. [ Emphasis added by [NAME].] [ 32 ]                                    [NAME] also be noted that at least one of the authors of the Letters, [NAME], is a [NAME] that has been directing work on the Lands. [18] As such, he is both the author of one of the Letters and a witness with direct evidence about the state of the Lands and the Substance contaminating them. [ 33 ]                                    [NAME] stated it was unknown whether [NAME] had any direct involvement in the Lands. [ 34 ]                                    [NAME] argued there was no reason to deny issuing a subpoena to the authors of the Letters, since they are both employees of [NAME] and can attend electronically for brief examinations to confirm the authenticity of the Letters. However, [NAME] reiterated there would be no need for either author to attend if the Director is prepared to produce the unredacted copies of the Letters and concede their authenticity and admissibility. Conclusion [ 35 ]                                    [NAME] stated to ensure that the Board has all the relevant information before it, the legislature granted the Board the power to compel documents and witnesses. The two Letters issued by [NAME] to similar situated landowners, are persuasive evidence that the Director’s decision to treat [NAME] as persons responsible under EPEA was not only incorrect but contrary to [NAME]’s own policies. [NAME] argued they are entitled to production of unredacted copies of the Letters to be able to properly argue these appeals and the Board should compel production of the Letters and their authors to ensure the Board has all of the relevant facts before it. [NAME] also reiterated their position that if the Director would not consent to producing the Letters and making their authors available at the hearing of the appeals, then the Board must issue subpoenas to both [NAME] and the authors of the Letters. 5.2.                                     Director 5.2.1.                               Director’s Initial Response [ 36 ]                                    The Director submitted in the Director’s Initial Response, among other things, that: •          the Director has no personal knowledge of the Calgary property referred to in the [NAME] or the Edmonton properties referred to in the [NAME]; •          unredacted copies of the Letters are publicly available on the Environmental Records Viewer; and •          [NAME] bear the onus of demonstrating that each Letter is relevant and material to the issues in the appeals, relates to the Lands, and assists in proving or disproving a material fact; and is therefore admissible. 5.2.2.                               Director’s Submission [ 37 ]                                    In the Director’s Submission, the Director summarized its response to [NAME]’ Preliminary Motion as follows: “Neither [of the Letters] meets the threshold for admissibility. They lack any rational connection to the facts in this appeal and are not necessary to determine the issues before the Board.

Accordingly, they should not be admitted, and if admitted, should be given no weight. The [Letters] are isolated, fact-specific examples drawn from a much larger body of [[NAME]] communications and [NAME] in [NAME]. They do not relate to the Lands or the parties in this appeal and do not establish any broader principle, policy, or consistent regulatory approach.” [19] [ 38 ]                                    The Director submitted the Letters demonstrate only how [NAME] responded in unrelated circumstances. The Two Letters are Not Admissible in this Appeal [ 39 ]                                    The Director submitted [NAME] bear the onus of establishing the admissibility of the Letters and they have failed to do so. [ 40 ]                                    For evidence to be admissible, the Director submitted it must be relevant; that it must assist in proving or disproving a material fact in issue. [20] [ 41 ]                                    The Director argued in this case, the Board should decline to admit the two Letters at the hearing of the appeals because [NAME] have failed to demonstrate that the Letters: 1.         are relevant to the issues set by the Board on September 4, 2024, and subsequently narrowed at the request of [NAME] on September 9, 2024; [21] 2.         assist in proving or disproving any material fact in the context of this appeal; 3.         relate to [NAME] or any of the Off-Site Property owners; and 4.         relate to the Lands. [ 42 ]                                    The Director submitted the Board has clear authority to determine the admissibility of evidence and not admit any evidence that is not relevant, and the Board in its Rules of Practice (November 2024) (the Rules of Practice) at Rule 25 has defined relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the appeal more probable or less probable than it would be without the evidence.” The Director argued that the Board’s authority is further reflected in its obligation to provide a summary of the evidence in its report to the Minister in appeals, like this one, where the Minister is the decision-maker. [22] [ 43 ]                                    The Director stated that while the Board is not strictly bound by formal rules of evidence, it cannot disregard them entirely by admitting improper evidence or flawed evidence. [23] The Director argued admissibility is a threshold requirement, and it is not sufficient to admit all evidence regardless of admissibility and merely assign it weight. Rather, the Director argued that the Board must first determine whether each of the Letters meets the admissibility threshold. [ 44 ]                                    The Director submitted that if the Board finds that either or both Letters are not relevant to any material fact in dispute, they should not be admitted and that an approach that admits “all evidence” would undermine the Board’s authority to assess admissibility rendering that function meaningless. The Director argued it would also risk confusion of the issues, undue delay, and a waste of time, concerns the Director stated were expressly recognized in Rule 25 of the Rules of Practice as grounds for not admitting evidence. [ 45 ]                                    Further, the Director submitted the Board requires admissible evidence that assists in proving or disproving material facts in order to determine the ultimate issue in the appeals. The Director’s submitted evidence that does not advance the Board’s understanding of those material facts is not relevant and should not be admitted.

Accordingly, the Director requested that Board determine the admissibility of each of the two Letters consistent with its decision in [NAME] et a . v Director (Northern Region, Regional Services, [NAME], r e: [COMPANY], 2003 ABEAB 12 ( [NAME] ). The Two Letters are Two Isolated Examples among Thousands [ 46 ]                                    The Director submitted each of the Letters describes facts specific to the particular properties and reflect a site-specific, fact-dependent regulatory response from [NAME]. Neither of the Letters concerns the Lands, nor do they involve any of the Parties to this proceeding. [ 47 ]                                    The Director argued for a document to be admissible, it must relate to, be connected with, or have a nexus to the appeal, and must be necessary for its determination. The Director stated these Letters do not meet that threshold as they do not relate to the material facts, or the issues in dispute in the appeals, and are not necessary to its determination. The [NAME] [ 48 ]                                    The Director argued the [NAME] does not prove or disprove any material fact in the appeals. The Director submitted on its face, the [NAME]: •                      was written by an individual who was not the Director, nearly two years after the Director issued the [Order] to [NAME]; •                      related to a property in Calgary located more than 8 kilometres southeast of the Lands; •                      identified a person who may be the current owner of the property who is neither [NAME] nor an Off-Site Property owner; •                      identified other persons involved with this property; •                      referred to one or more releases of an unidentified substance at an unknown time, with no connection to the Lands; •                      provided no particulars of the environmental condition of the property at any time; •                      did not describe the site history; •                      did not provide any detail about the source of the contamination and whether it had been removed and •                      mentioned monitoring and sampling activities without specifying their nature, scope, or results. The [NAME] [ 49 ]                                    The Director argued the [NAME] similarly does not establish or refute any material fact in the appeals and on its face, the [NAME]: •                      was written by an individual who is not the Director, nearly two years after the Director issued the Order to [NAME] on August 1, 2023; •                      related to properties in Edmonton, approximately 280 kilometres northeast of the Lands; •                      identified persons who are not parties to this appeal or Off-Site Property owners; •                      referred to a release of an unidentified substance at an unspecified time, unconnected to the Lands; •                      provided no details about the environmental condition of the properties at any time; •                      did not provide any detail about the source of the contamination and whether it had been removed; and •                      referenced environmental reports without providing any particulars. Lack of Relevance and Assistance to the Board [ 50 ]                                    With respect to [NAME]’ allegation the properties referred to in the Letters involved “similarly situated landowners,” the Director argued [NAME] had not provided any evidence demonstrating any similarity between those properties and the Lands or the material facts at issue in the appeals. The Director submitted, absence such evidence, the Letters cannot assist the Board in determining whether [NAME] are person responsible and therefore the Letters are not relevant to the appeals. The Director further argued the Letters were site-specific communications prepared in response to specific facts and represented isolated examples drawn from a much larger database of unrelated [NAME] properties in [NAME] and associated [NAME] communications. Determining “Person Responsible” turns on the Specific Facts of this Appeal. [ 51 ]                                    The Director noted [NAME] appeared to rely on the Letters to advance an abstract interpretation of a “person responsible” which is the central issue in this appeal and a determination that involves both legal interpretation and application to the particular facts concerning the [NAME]. The Director argued the Letters do not assist in determining whether [NAME] meet the definition of “person responsible” in this appeal as they apply the concept in entirely different factual contexts. [ 52 ]                                    The Director submitted relevance depends on whether the evidence assists the Board in determining the issues the appeals, not how similar concepts were applied in unrelated factual contexts. No Evidence of Policy or Inconsistency [ 53 ]                                    The Director submitted [NAME] relied on the Letters to suggest an “internal understanding” or “policy” within [NAME] but noted [NAME] have not provided any evidence of such policy. The Director pointed out the Letters are not policy statements, directives or authoritative interpretations of law but rather were fact-specific, site-specific communications from the environmental regulator reflecting the fact-driven nature of environmental regulatory decision-making. The Director further noted [NAME]’ submissions regarding a “contradiction” does not establish relevance nor does different outcomes across different factual scenarios demonstrate inconsistency. The Letters do not meet even the Low Threshold for Relevance [ 54 ]                                    The Director submitted the Letters do not meet the “low bar for potential relevance” relied on by [NAME] in their Preliminary Motion because relevance still requires a connection to the issues in the appeals and necessity for determining them, otherwise the evidence is not admissible. [ 55 ]                                    The Director submitted the Letters: 1.         did not assist in determining any issue before the Board; 2.         are not necessary to the Board’s analysis; and 3.         provided no reliable basis for any inference relevant to the appeals. [ 56 ]                                    The Director stated that at most, each Letter represented an isolated, fact-specific example drawn from a much larger database of unrelated [NAME] properties in [NAME] which was insufficient to meet even the minimal standard of relevance. [ 57 ]                                    In response to [NAME]’ argument regarding procedural fairness, the Director submitted procedural fairness does not require the admission of all materials a party wishes to rely on; it requires only that the parties be able to present evidence that is relevant and necessary to the issues before the Board. [NAME] of [NAME] is Unsupported by the Record [ 58 ]                                    In response to [NAME]’ assertion about [NAME], the Director noted the only document cited by [NAME] in support of their assertion was a set of meeting notes from a meeting attended by [NAME]’ representative, their environmental consultant, and the Director. The Director argued those notes contained no statement or description that supports the characterization advanced by [NAME]. [ 59 ]                                    Further, the Director submitted [NAME] have not identified any other documents in either the Director’s Record [24] or the Supplemental Information Record [25] that substantiated their assertion nor have they provided particulars of the allegation, explained its relevance to the issues this appeal, or identified any material fact that they allege it proves or disproves, or the Lands. Conclusion and Relief Requested [ 60 ]                                    The Director concluded that the Letters are isolated, fact-specific communications concerning unrelated [NAME] and that they do not relate to the Lands or the Parties in this appeal, do not establish any broader principle or policy, and do not assist the Board in determining any issue before it. 5.3.                                     [NAME]’ Reply Submission [ 61 ]                                    [NAME] acknowledged [NAME] had produced unredacted copies of the Letter but noted the Director had taken the position the Letters were not admissible at the hearing. [ 62 ]                                    [NAME] argued the Director’s submissions regarding the admissibility of the Letters were premature as [NAME] was for subpoenas to compel the production of documents and witnesses. [NAME] submitted the test to be applied is whether the records and witnesses are “potentially relevant and necessary to the issues that the Board is considering in the context of the appeal” [26] which [NAME] argued was a different test than the test for admitting evidence at the hearing of the appeals. [ 63 ]                                    With the unredacted Letters produced, [NAME] argued the only remaining issue to be resolved in this application was whether the authors of the Letters had evidence that was potentially relevant to the issues to be decided in the appeals. Contrary to the Director’s submissions, [NAME] stated the Letters provided evidence of [NAME]’s policy that directly contradicted the position taken by the Director in the appeals. [NAME] argued that compelling the authors of the Letters to attend the hearing of the appeals would ensure the Board and [NAME] have both the Letters and the context underlying them. The Preliminary Motion was about Potential Relevance not about Hearing Admissibility [ 64 ]                                    [NAME] submitted the Director was incorrect in stating that [NAME] must establish the admissibility of the Letters in the Preliminary Motion as this procedural motion was about the potential relevance of the Letters not their admissibility at the hearing. [NAME] noted the Director did not cite any authority in support of her position and that the only case cited by the Director was clear that the pre-hearing test for a subpoena is potential relevance, not certain relevance or admissibility. [27] [ 65 ]                                    [NAME] argued the admissibility of evidence and its weight should not be determined in a procedural motion [28] but rather at the hearing in the context of all of the other evidence. [29] [NAME] stated the requirement to determine admissibility at the hearing on the merits was also supported by the fact that Rule 25 of the Board’s Rules of Practice is found half way through the “Hearing” section of the Rules of Practice and not in the pre-hearing sections. [ 66 ]                                    Further, [NAME] argued dealing with admissibility of evidence at the hearing on the merits avoids numerous pre-hearing applications to deal with the admissibility of documents. [NAME] noted that notably the Board, prior to the hearing, does not rule on the admissibility of any of the evidence in the Director’s Record, [NAME]’ package of documents, or any evidence that witnesses listed in the Parties’ hearing submissions intend to give. [NAME] submitted there was no reason to give an advance ruling on the admissibility of the Letters or the evidence that [NAME] or [NAME] may give. The Letters and the Evidence of their Authors are Potentially Relevant [ 67 ]                                    The Appellant noted the Director argued the Letters did not prove or disprove a material fact in the appeals. [NAME] further noted, proving or disproving a material fact was not the test that the Director (incorrectly) relied on but rather, the Director relied on Rule 25 of the Board’s Rules of Practice which requires the evidence must only “assist in proving or disproving” a fact. [NAME] argued while the Board is required to apply the lower bar of potential relevance in this application for subpoenas, the Letters also meet the higher bar of assisting in proving or disproving a fact. The Letters are Evidence of [NAME]’s Policies and the Director’s Departure from Them [ 68 ]                                    [NAME] submitted the Letters are evidence of [NAME]’s policies and the Director’s departure from such policies. The Appellant submitted contrary to the Director’s submissions, the Letters are not fact-dependent examples without any connection to the Lands but are of primary relevance because their contents speak to [NAME]’s policies with respect to the [NAME] obligations of the purchasers of historically [NAME] land. [NAME] stated, for example, after acknowledging the recipient of the [NAME] was the owner of a property affected by historical contamination by a drycleaner, the [NAME] stated that [NAME] “does not have specific requirements for the property owner to submit an updated(sic) to the Risk Management Plan for the either of these releases”. [NAME] also noted the [NAME] further stated that “[i]f activities on the site cause an adverse effect, the landowner may be considered as a person responsible.” [ 69 ]                                    [NAME] further noted that in the [NAME], after acknowledging that the current landowner was not responsible for the original release onto their lands, it was stated “[a]s the landowners are currently not considered to be persons responsible for the substance release, [NAME] does not have specific requirements for risk management or [NAME]”. [NAME] argued these statements were evidence that, as a matter of policy, [NAME] does not consider the subsequent owners of historically [NAME] lands to be persons responsible for the substances on their lands. [ 70 ]                                    [NAME] submitted it was not necessary the contents of the Letters prove [NAME]’s “broader principle, policy, or consistent regulatory approach” beyond a reasonable doubt. [NAME] argued the Letters would assist the Board in understanding [NAME]’s policies on when the purchaser of historically [NAME] lands will be treated as a person responsible for the substances on their lands and whether [NAME] are properly persons responsible and whether the Director should pay [NAME] costs because of a “marked departure from normal behaviour”. [30] [ 71 ]                                    [NAME] submitted the Letters are evidence the norm applied by [NAME] was not to treat owners of historically [NAME] lands as persons responsible unless their actions actively make contamination worse and this evidence, as confirmed by the authors of the Letters under oath, would demonstrate the Director’s decision to issue the Order and the positions taken to defend it in the appeals was a marked departure from the norm. [NAME] stated while the Letters contain statements that mere ownership of [NAME] lands does not make the owner a person responsible, the Director in her submissions argued the opposite. The Letters and their Authors will assist in the Cross-Examination of the Director [ 72 ]                                    In addition to providing direct evidence of [NAME]’s policies, [NAME] stated the Letters give [NAME] the tools to cross-examine the Director about those policies as [NAME] lack access to [NAME]’s internal policy documents. [NAME] further argued, if the Director denied the policy statements made in the Letters, [NAME] would be able to rebut the evidence of the Director by cross-examining the authors of the Letters to confirm their policy statements. The Existence of Distinguishing Facts does not render the Letters Irrelevant [ 73 ]                                    [NAME] acknowledged at the hearing of the appeals, there may be differences between the circumstances of the Lands and the circumstances of the lands that are the subject of the Letters and, along with the Director’s and authors’ evidence under cross-examination, the Board will have to determine the weight to be placed on the Letters. [ 74 ]                                    [NAME] submitted there was sufficient information in the Letters to determine that the owners of the properties described in the [NAME] are similarly situated, clearing the low bar of potential relevance. [NAME] further submitted, in both the Letters and the appeals, it was admitted by [NAME] that the current landowners were not responsible for the original release onto their respective lands. [NAME] noted similar to the appeals, in the case of the property referenced in the [NAME], the historical contamination was caused by drycleaning operations and in the case of the property referenced in the [NAME] there was both on-site and off-site contamination. [ 75 ]                                    [NAME] submitted the policy statements in the Letters, that similarly situated owners of historically [NAME] lands were not persons responsible, directly contradicted the position taken by the Director in these appeals. [NAME] argued that even if the Director or the authors of the Letters were able to explain there were unique facts in the appeals that lead to [NAME] being treated differently than other similarly situated landowners, it should not prevent [NAME] from being able to ask the Director and the authors of the Letters questions about the relevant policy. [ 76 ]                                    [NAME] submitted if the Director wants to establish that the policies evidenced by the Letters are incorrect or inapplicable to the Lands, the Director can do so by producing [NAME]’s internal policy documents or having the Director and the authors of the Letters give oral evidence of the differences between the properties in direct examination. [NAME] further submitted, [NAME] is well suited to provide such evidence as he is directly involved with both the Lands in these appeals and the lands that were the subject of the [NAME]. [NAME] is Directly involved with the Lands [ 77 ]                                    [NAME] argued the Director’s suggestion [NAME]’ description of [NAME] was inaccurate was perplexing and disingenuous. [NAME] argued the Director did not, and cannot, deny [NAME] is a [NAME] involved in the management of the Lands. [NAME] noted the [NAME] clearly identified [NAME] as a [NAME] employed by [NAME] and the Director’s own record shows that he has been involved with the Lands since at least 2024. [31] [NAME] also noted [NAME] has corresponded directly with [NAME]’ environmental consultant regarding the ongoing management of the Lands, has been copied on numerous emails from the Director regarding the Lands, and has attended numerous meetings with [NAME] regarding [NAME]’s ongoing monitoring of [NAME]’ compliance with the Order. [32] [ 78 ]                                    [NAME] submitted [NAME]’s involvement with both the Lands and the lands described in his letter, made him uniquely positioned to speak to [NAME]’s policies in respect of current owners of historically [NAME] lands and why those policies have not been similarly applied to [NAME]. To use the Director’s language, [NAME] argued [NAME]’s experience with both properties provides a nexus that moved his evidence beyond an understanding of [NAME]’s policies to the real-world application of those policies at each site. Conclusion [ 79 ]                                    [NAME] submitted the Board should issue the subpoenas to the authors of the Letters as requested and leave any determination of the admissibility and weight to be placed on the Letters and the evidence of their authors until the hearing on the merits. With the Letters produced, [NAME] stated the only remaining issue to be determined was whether the authors of the Letters should be made available for cross-examination at the hearing. [NAME] submitted both Letters were evidence [NAME] has internal policies that align with [NAME]’ position and show the Director’s position is a marked departure from [NAME]’s own policies. [ 80 ]                                    In conclusion, [NAME] argued the policies described in the Letters and any evidence their authors may be able to provide regarding those policies was relevant to both the substantive issue of whether [NAME] are persons responsible and whether the Director’s decision to treat them as such was a marked departure from the norm entitling [NAME] to costs which met the low bar of potential relevance required to compel the authors of the Letters to attend the hearing.

6.                                          ANALYSIS [ 81 ]                                    The Board’s power to compel document production is found in section 95 (1) of EPEA, [33] which grants the Board the powers of a commissioner under the Public Inquiries Act. [ 82 ]                                    The Board’s authority to compel document production under section 95(1) of EPEA, in combination with the Board’s powers of a commissioner under the Public Inquiries Act , have been the subject of several decisions of the Board (see [NAME], and [NAME] ). These three decisions were cited and referred to in the Parties’ submissions. Concerning document production, these Board’s decisions confirm the Board has established the following principles to be applied by the Board:

1.                   The documents being produced to the Board must help resolve the appeal. The Board does not have the jurisdiction to order a party to merely produce documents to another party.

2.                   The Board’s power is in the form of a subpoena duces tecum . The Board may only order a witness to appear and compel the witness to produce documents. The Board may not order the production of documents without a witness. The evidence should be presented to the Board in the context of a witness testifying before the Board.

3.                   Any documents the Board compels to be produced must be in the possession of the witness, if available, or the next best witness, and the Board’s order must require that witness to attend and testify, 4.                   Any documents the Board compels to be produced must be “… required for the full investigation of the matters into which … [the Board] is appointed to inquire.” The documents the Board compels to be produced must be necessary for the Board to consider the subject matter of the appeal before it.

5.                   The documents must be relevant to the matters before the Board. They must be related to, connected with, or have a nexus with the appeal before the Board. [34] [ 83 ]                                    The Board notes the principles developed in [NAME] as confirmed in [NAME] relate to the Board’s power to require the production of documents by a witness at a hearing. However, in this case the documents requested are in the public domain as noted by the Director when she provided a link to unredacted copies of the Letters on the Environmental Records Viewer. As a result, the Board finds it unnecessary for the Board to issue a subpoena duces tecum or an order compelling a witness to bring physical documents to the hearing. [NAME] , the Board will not order production of “any documents normally available to the public.” [35] [ 84 ]                                    The Board notes [NAME] submitted that with the unredacted Letters produced, the only remaining issue to be resolved in this application was whether the authors of the Letters should be compelled to attend the hearing as they may have evidence that is potentially relevant to the issues to be decided in the appeals. The Board agrees. [ 85 ]                                    As previously noted, section 95(1) of EPEA gives the Board the powers of a commissioner under the Public Inquiries Act. Further, section 4 of the Public Inquiries Act gives the Board the power to summon witnesses to appear a hearing as follows: “The commissioner or commissioners have the power of summoning any persons as witnesses and requiring them to give evidence on oath, orally or in writing and to produce any documents, papers and things that the commissioner or commissioners consider to be required for the full investigation of the matters into which the commissioner or commissioners are appointed to inquire . ” [ Emphasis added by the Board] Further, section 5 of the Public Inquiries Act provides the Board the power to enforce attendance of a witness and to compel that witness to give evidence as follows: “5.       T he commissioner or commissioners have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and to produce documents and things as is vested in a court of record in civil cases, and the same privileges and immunities as a judge of the Court of King’s Bench.” [ 86 ]                                    The Board is of the view that section 4 and 5 of the Public Inquiries Act provide the Board the power to compel [NAME] and [NAME] to appear as witnesses and provide evidence at the hearing if the Board determines it is required for the full investigation of the appeals. [ 87 ]                                    In this case, [NAME] have argued that [NAME]’s involvement with the Lands and with the lands described in the [NAME] make him uniquely position to speak to [NAME]’s policies in respect of owners of historically [NAME] lands. [NAME] have also argued the [NAME] and [NAME] have made statements in their Letters that provide evidence that [NAME] does not consider subsequent owners person responsible for historical contamination of their lands. [ 88 ]                                    The Director, however, has argued that there was no nexus between the Letters and these appeals, as the Letters involved completely different properties and people so there was no rational connection to the facts of this case. The Director further argued the Letters were isolated, fact-specific examples drawn from a much larger body of [NAME] communications and [NAME] in [NAME], do not relate to the Lands or [NAME] and do not establish any broader policy or consistent regulatory approach and as such do not assist the Board in determining any issue in the appeals. The Director stated the Letters only demonstrated how [NAME] responded in unrelated circumstances. [ 89 ]                                    The Board is of the view the contents of the Letters authored by [NAME] and [NAME] relate to the regulatory policy applied by [NAME] to subsequent landowners of property that were subject to a historical release of a substance and [NAME]’s determination of a person responsible under EPEA, which is the central issue to these appeals. Further, as stated by the Board in [NAME]: “In law, a party has the right to know the case against them and the right to defend themselves. Since its inception in 1993, the Board has ensured that the person affected by a decision of the Director, as well as the other parties to an appeal, has a complete copy of the Director’s record. In the Board’s view, these are fundamental principles of natural justice and procedural fairness.” [36] [ 90 ]                                    It is the Board’s view that if [NAME] has a policy in respect of the liability of owners of property subject to prior historic contamination regarding [NAME] their property and the naming of such owners as persons responsible, [NAME], as a matter of procedural fairness and the rules of natural justice, have a right to know the nature of the policy so they may determine how and if the Director applied the policy in making her decision to issue the Order. The Board finds that [NAME] and [NAME] may have potentially relevant evidence in that regard. [ 91 ]                                    Further, even if the evidence to be provided by [NAME] and [NAME] show the Letters were with respect unrelated circumstances as suggested by the Director, the Board is of the view an explanation of the differences between the matters before the Board in the appeals and the circumstances facing [NAME] and [NAME] may be potentially relevant in the determining the existence of or the lack of [NAME] policy regarding the naming of a owner of property subject to historical contamination a person responsible. [ 92 ]                                    The Board is satisfied [NAME] is best available person and in the best position to speak to the contents of the [NAME] as [NAME] has identified himself in the [NAME] as a [NAME] employed by [NAME] and the Director’s Record confirms [NAME] has been involved with the Lands since at least 2024. [37] [NAME] have also shown [NAME] has corresponded directly with [NAME]’ environmental consultant regarding the ongoing management of the Lands, has been copied on numerous emails from the Director regarding the Lands, and has attended numerous meetings with [NAME] regarding [NAME]’s ongoing monitoring of [NAME]’ compliance with the Order. [38] appeals. [ 93 ]                                    The Board similarly finds that [NAME] is the best person available and in the best position to speak to the [NAME] as he also identified himself as a [NAME] employed with [NAME] and has referenced in the [NAME]’s regulatory framework (e.g., EPEA, [NAME] policy and guidelines) and [NAME]’s application of its framework regarding historic releases of substances on lands, persons responsible for the substance release, risk management plans, [NAME] process and objectives. [ 94 ]                                    The Board therefore grants [NAME]’ Preliminary Motion in part and directs [NAME] to produce the [NAME] and [NAME] as witnesses at the hearing. Subpoenas will be issued for [NAME] and [NAME]. [ 95 ]                                    The Board notes the Director provided extensive submissions regarding the admissibility of the unredacted Letters at the hearing of the appeals. The Director took the position that the Letters were not admissible but if admitted, should be given no weight. In contrast, [NAME] argued their motion was to compel the production of documents and witnesses; and therefore, the Director’s submissions regarding the admissibility of the Letters were premature. [ 96 ]                                    The Board agrees with [NAME] and finds that the Director’s arguments regarding admissibility are premature given [NAME]’ motion was to compel production of documents and witnesses. [ 97 ]                                    Further, the Board agrees with [NAME]’ submissions that: 1.                   admissibility of evidence and its weight should not be determined by the Board in a procedural motion; [39] 2.                   admissibility and weight of evidence must be determined at the hearing on the merits in the context of all of the other evidence; [40] and 3.                   dealing with admissibility of evidence at the hearing on the merits avoids numerous pre-hearing applications to deal with the admissibility of documents. [ 98 ]                                    Therefore, the Board will not rule on the admissibility of the Letters prior to the hearing on the merits.

7.

DECISION [ 99 ]                                    The Board grants [NAME]’ Preliminary Motion in part. [ 100 ]                                The Board directs the [NAME] to produce [NAME] and [NAME] as witnesses at the hearing. Subpoenas will be issued for [NAME] and [NAME]. [ 101 ]                                The Board will not rule on the admissibility of the Letters prior to the hearing on the merits. Dated on May 26, 2026, at Edmonton, [NAME]. -original signed- __________________ [NAME] Board Chair [1]        The recitals to the Order state that: “… municipal addresses have changed over time and link to the legal land descriptions as follows: • 1248 and 1232 - 10 Avenue SW are the same property legally described as Plan 1423LK, Block 47; • 1240 and 1230 - 10 Avenue SW are the same property legally described as Plan 1423LK, Block 47; and • 1216 and 1210 - 10 Avenue SW are the same property, legally described as Plan 1423LK, Block 46”. For the purposes of this decision, the Board will refer to the Lands by their legal land descriptions. [2]        The Order at page 5. [3]        Appendix A to the Preliminary Motion. [4]        Appendix B to the Preliminary Motion. [5]        See the Director’s Initial Response at page 1 where the following links to the unredacted copies of the letters were provided to the Board: https://geospatial.[NAME].ca/services/DRASDocuments/Document/Get?documentType=Ltm&authorizationNumber=DLTM0011016&id=64045228 https://geospatial.[NAME].ca/services/DRASDocuments/Document/Get?documentType=Ltm&authorizationNumber=DLTM0013821&id=62284774 [6]        See Appendix 1 to the Order. [7]        Order at page 5. [8]        EPEA at section 95. [9]        Public Inquiries Act, at Section 4. [10]      [NAME] at paragraph 65. [11]      [NAME] at paragraph 71. [12]      [NAME] at paragraph 71. [13]      [NAME] et al v Director, Northern Region, Regional Services, [NAME], re : [COMPANY] , 2003 ABEAB 12at paragraph 51; [NAME] et al v Director, Southern Region, Environmental Management, [NAME], re : [COMPANY], 2011 ABEAB 36at paragraph 17. [14]      Director’s Hearing Submission at paragraphs 135.a), 147 to 150, and 151. [15]      Director’s Hearing Submission at paragraphs 135.b), 210, and 211 [16]      Director’s Hearing Submission at paragraphs 9, 122, 124, 135.c), 217, and 230 to 233. [17]      Preliminary Motion at page 3, citing Costs Decision: [NAME] v Director, Regional Compliance, Red Deer-North Saskatchewan Region, [NAME] , 2023 ABEAB 10 ( [NAME] ), at paragraphs 38 and 39. [18] Director’s Supplemental Record at page 3798. [19]      Director’s Submission at page 1. [20]      Director’s Submission at page 2, citing the definition of “Material fact,” Black’s Law Dictionary , 12th ed (St Paul, MN: Thomson Reuters, 2024), online: Westlaw. [21]      The Board notes the issues for the appeals were set by the Board on July 9, 2024, and were confirmed by the Board in its letter to the Parties and QLT on September 9, 2024. [22]      Environmental Appeals Board Regulation , Alta Reg 114/1993 at section 17(3)(a). [23]      Director’s Submission at page 2, citing [NAME] v [NAME] (Securities Commission), 2010 ABCA 48 at paragraphs 16 to18. [24]      Provided to the Board on September 29, 2024. [25]      Provided to the Board on October 9, 2024. [26]      [NAME]’ Reply Submission at page 1, citing [NAME] at paragraph 51, and [NAME] at paragraph 17. [27]      [NAME], citing [NAME] at paragraph 51, and [NAME] at paragraph 17. [28]      [COMPANY] v [COMPANY] , 2025 ABLPRT 320 at paragraph 7. [29]      Lethbridge (County) v [COMPANY]. , 2026 ABLPRT 338 at paragraphs 12 to15. [30]      [NAME] at paragraph 39. [31]      Supplemental Information Record at page 3798. [32]      [NAME] referred the Board to the emails and meeting invites attached to [NAME]’ Reply Submission as Appendix “A”. [33]      Section 95(1) of EPEA provides: “The Board has all the powers of a commissioner under the Public Inquiries Act. ” [34]      [NAME] at paragraph 46 citing [NAME] at paragraph 65. [35]      [NAME] at paragraph 66. [36]      [NAME] at paragraph 50. [37]      Director’s Supplemental Record, page 3798 [38]      [NAME]’ Reply Submission at Appendix “A”. [39]      [NAME] at paragraph 7. [40] Rule 25 of the Board’s Rules of Practice, and Lethbridge (County) paragraphs 12 to15.