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A disappointed gravel pit operator has lost its lawsuit against the New Brunswick Minister of the Environment, but added some memorable phrases to the Approvals jurisprudence.

Debly Construction Ltd. operated a gravel pit and sand washing operation for 26 years, next to McGuire Brook. Meanwhile, new subdivisions developed, whose occupants objected to Debly’s operations.

In 1990, the Clean Water Act brought in a 75 m setback requirement. In 1998, Ministry of the Environment staff warned Debly that it now needed a permit, would have to move out of the setback area, and would have to make changes to its operations. Debly applied for the necessary permits, and received instead a rude “officious, legalistic, enforcement type” Order with a warning of severe consequences if it failed to comply.

Debly  requested, but did not receive, an exemption from the setback requirements. Meanwhile, it did not comply with the Order. Charges were laid. By the time the charges were resolved, Debly had lost its major customer. It sued the Ministry of the Environment for $2,322,907.91, for regulatory negligence, negligent investigation, and misrepresentation.

Anyone who has languished in “Approvals hell” may feel a glimmer of sympathy for the Debly family:

From the point of view of Debly, it is unfair and improper and an abuse… if a government agency

has negligent process and procedure for dealing with applications for approval to operate or applications for exemption….what I would call bureaucratic delay and the failures or omissions of the department or the Minister to respond immediately to applications …

[31] …Majid Debly spoke of the hazard “of being drawn into the vortex of the bureaucracy” and expressed concern about how when someone starts filling out forms and complying with requests for

applications by the bureaucracy, he is in effect being drawn into a vortex of some sort of a black hole of disappointment, disillusionment and misery….

The judge had some sympathy for their experience, but it didn’t amount to a good case:

I am not aware of any cases where liability in tort has been found for bureaucratic delays, frustrations or officiousness or rudeness or highhanded efforts to enforce black and white rules like a 75 metre setback.

However, the province paid something for its rudeness, by recovering only a tiny percentage of its legal costs.

Debly  Construction v. New Brunswick, 2009 NBQB 105

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