Province asks court to dismiss AIM's bid to quash suspension of Saint John scrapyard

The New Brunswick government wants the Court of King's Bench to toss out American Iron & Metal's request for a judicial review of the environment minister's decision to suspend the company's approval to operate.

The suspension at its Saint John scrapyard followed last fall's massive fire.

The province has filed a notice of motion seeking an order "striking out and dismissing" AIM's application of Feb. 12, on the basis it has become a moot point, as the company's approval to operate expired at the end of April.

The company unsuccessfully attempted to have its approval to operate the waterfront metal recycling plant on the city's west side renewed, documents recently filed with the Saint John courthouse reveal — another decision the company plans to challenge in court.

"There is no longer any 'live controversy' between the parties," lawyers for the province argue in the notice of motion, noting AIM "admits and concedes" in its application for review that its approval was valid only until April 30.

"Quashing or setting aside the minister's decision to suspend the now expired approval to operate would not have any practical effect because it would not alter the legal relationship between the parties," Frederick McElman and Lara Greenough, of Stewart McKelvey, contend.

'Abuse of process,' and 'frivolous'

In addition, they argue AIM's application does not raise issues of broad relevance or a novel question of law.

As a result, AIM's application "fails to disclose a reasonable claim for relief against the Province, is an abuse of process, and has become frivolous."

Hearing the matter would fail to respect the court's proper law-making function and would be a waste of judicial and party resources, they say.

The province has requested costs and any other relief the court deems just.

Romain Viel, a lawyer representing AIM, did not immediately respond to a request for comment Tuesday.

Suspension unreasonable, AIM argues

Former environment minister Gary Crossman suspended AIM's approval to operate on Sept. 19 because he was "of the opinion that there was an unauthorized release of contaminants" during the Sept. 14 scrapyard fire, in contravention of the Clean Air Act.

The fire burned for two days and prompted a city-wide shelter-in-place order because of hazardous smoke.

Piles of scrap metal at AIM's west side operation caught fire at around 1 a.m. on Sept. 14. Over the next 40 hours, Saint John firefighters used about two million litres of water to battle the blaze.
The joint provincial-Port Saint John task force investigation into the fire concluded AIM's waterfront location, not far from hundreds of west-side homes, is 'entirely inappropriate given its now known hazards and risks.' (Submitted by Ed Moyer)

American Iron & Metal wants a judge to quash the suspension, which it says has prevented the company from operating its business at the facility "in any fashion." The company alleges Crossman acted "arbitrarily and unreasonably," exceeded his jurisdiction and breached his duty of procedural fairness.

AIM contends it should have been given an opportunity to make submissions before the suspension, and that an order with a "narrower scope" would have been sufficient to satisfy the objectives of the act.

Urged to withdraw application for judicial review

On May 16, counsel for the province wrote to AIM's lawyer, requesting the company withdraw its application for judicial review, given the expiry of its approval.

"In light of this development, and in the interest of costs and time savings to the parties and the court, please advise if you client is prepared to withdraw," wrote McElman. "Our client would be agreeable to signing a consent order to discontinue the application with no costs at this time."

He requested a response no later than May 22.

'Not eligible' for approval renewal

On May 24, Viel told McElman that AIM received an email from the new Environment Minister Glen Savoie on May 9, the day after he was officially appointed to replace Crossman, who resigned.

"Savoie determined that AIM was 'not eligible' to renew the approval to operate," wrote Viel. "AIM disagrees with this determination and will be seeking judicial consideration of the decision."

Department of Environment spokesperson Kelly Cormier declined to comment Tuesday on why AIM was deemed ineligible for renewal, citing the ongoing court proceedings.

AIM alleges government withholding records

AIM's salvage dealer's licence also remains revoked. Public Safety Minister Kris Austin revoked it on Dec. 29, based on the joint provincial-Port Saint John task force investigation, which concluded future fires at the scrapyard are likely, and that a "catastrophic" fire could happen again.

The company has filed a separate application seeking a judicial review of that decision. It argues Austin exceeded his jurisdiction and breached his duty of procedural fairness by failing to consider AIM's submissions on why a revocation was "unnecessary" and that the indefinite period is "unreasonable."

AIM has three other challenges before the court, all involving Right to Information requests it filed with the Department of Public Safety, the Premier's Office, and the Executive Council's Office late last year.

The second-degree murder trial of Justin David Breau began to hear evidence in Saint John on Wednesday afternoon.
A hearing date for the province's motion to dismiss has not yet been set at the Saint John Court of King's Bench. (Roger Cosman/CBC)

The company requested copies of "all information and documents relating to AIM from Jan. 1, 2023 to present," including those regarding the September fire, referred to as "The Incident," the facility, its approval and suspension, the task force, Austin's letter and Public Safety's inspections and investigations into the facility, or any of AIM's other locations in New  Brunswick under the Salvage Dealer's Licensing Act or the Unsightly Premises Act.

AIM contends the government departments failed to disclose all non-excluded records in their custody or under their control, and filed referrals with the Court of King's Bench — a procedure established by the Right to Information and Protection of Privacy Act, allowing an applicant who has requested access to records to ask that the court review the disclosure provided by the public body and either order further disclosure or confirm the head of the public body's decision to refuse access.

Justice Thomas Christie, of the Court of King's Bench in Fredericton, is scheduled to hold a pre-trial conference on AIM's two applications for judicial review and three referrals later this month.

The province has requested its motion to dismiss be heard on or before that day. As of Tuesday, no date has been set, according to court staff.