Province asks court to dismiss AIM’s motion to lift suspension of Saint John scrap yard

The New Brunswick government wants the Court of King’s Bench to dismiss American Iron & Metal’s application for a judicial review of the Environment Minister’s decision to suspend the company’s operating licence.

The closure of the scrap yard in Saint John occurred after the massive fire last fall.

The province has filed a motion to dismiss and reject AIM’s February 12 application, arguing that it was no longer relevant because the company’s operating license expired at the end of April.

According to documents recently filed in Saint John’s court, the company tried unsuccessfully to renew its permit to operate the metal recycling plant on the waterfront in the city’s west end – another decision the company plans to challenge in court.

“There is no longer a ‘current controversy’ between the parties,” the province’s lawyers argue in their motion, pointing out that AIM “admits and concedes” in its motion for reconsideration that its permit was only valid until April 30.

“Revoking or overturning the Minister’s decision to suspend the now expired operating licence would have no practical effect as it would not alter the legal relationship between the parties,” argue Frederick McElman and Lara Greenough of Stewart McKelvey.

“Abuse of procedure” and “reckless”

Furthermore, they argue that AIM’s motion does not raise any issues of general relevance or a novel legal question.

As a result, AIM’s motion “fails to establish an adequate claim for relief against the Province, constitutes an abuse of process, and has become frivolous.”

Hearing the case would not do justice to the court’s actual legislative function and would be a waste of judicial and party resources, they say.

The Province has requested reimbursement of costs and any other compensation the Court may deem appropriate.

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

AIM argues suspension is unjustified

Former Environment Minister Gary Crossman revoked AIM’s operating license on September 19 because he “believed that the scrapyard fire on September 14 resulted in an unauthorised release of pollutants”, which constituted a violation of the Clean Air Act.

The fire raged for two days and led to a city-wide curfew due to dangerous smoke.

The joint investigation into the fire by the provincial and Port Saint John task force concluded that AIM’s waterfront location, not far from hundreds of homes on the west side, “is totally unsuitable given the hazards and risks now known to exist.” (By Ed Moyer)

American Iron & Metal wants a judge to lift the suspension that it says prevents the company from continuing its business at the plant “in any capacity.” The company claims Crossman acted “arbitrarily and unreasonably,” exceeded his authority and violated his duty of procedural fairness.

AIM considers that it should have been given an opportunity to make representations before the stay was imposed and that a “narrower scope” order would have been sufficient to achieve the objectives of the Act.

Request to withdraw the application for judicial review

On May 16, the provincial representative wrote to AIM’s lawyer asking the company to withdraw its application for judicial review because the permit had expired.

“In light of this development, and in the interest of saving time and money for the parties and the court, please advise us if your client is willing to withdraw,” McElman wrote. “Our client would be willing to sign a consent order to dismiss the motion without incurring any costs at this time.”

He asked for a response by May 22 at the latest.

“Not eligible” for renewal of permit

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

“Savoie has decided that AIM is ‘not entitled’ to renew the operating licence,” Viel wrote. “AIM disagrees with this decision and will seek a judicial review of the decision.”

Kelly Cormier, spokeswoman for the Department of Environmental Protection, declined to comment on Tuesday on why AIM is not eligible for an extension, citing the ongoing legal proceedings.

AIM claims government is withholding records

The scrap dealer AIM’s licence remains suspended. Public Safety Minister Kris Austin revoked it on December 29th. The reason given was the joint investigation by the provincial and Port Saint John task force, which concluded that fires at the scrap yard are likely to occur in the future and that another “catastrophic” fire could occur.

The company has filed a separate application for judicial review of that decision, arguing that Austin exceeded its jurisdiction and breached its duty of procedural fairness by failing to consider AIM’s arguments as to why revocation was “unnecessary” and the indefinite period was “unreasonable.”

AIM is still pending three other lawsuits in court. All of these lawsuits relate to requests for information that the company submitted to the Ministry of Public Security, the Prime Minister’s Office and the Office of the Executive Council late last year.

A hearing date for the province’s motion to dismiss has not yet been set in the Saint John Court of King’s Bench. (Roger Cosman/CBC)

The company requested copies of “all information and documents relating to AIM from January 1, 2023 to the present,” including those relating to the September fire, referred to as “the Incident,” the facility, its permit and suspension, the Task Force, Austin’s letter, and public safety inspections and investigations at the facility or any other AIM location in New Brunswick under the Salvage Dealer’s Licensing Act or the Unsightly Premises Act.

AIM claims that government agencies have failed to disclose all non-excluded records in their custody or control and has brought claims in the Court of King’s Bench, a process created by the Right to Information and Protection of Privacy Act that allows an applicant who has requested access to records to ask the court to review the information provided by the public body and either order further disclosures or uphold the decision of the head of the public body to refuse access.

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

The province has requested that its motion to dismiss be heard no later than that day, but no date had been set as of Tuesday, according to court staff.