Decision Date: May 10, 1999

Panel: Toby Vigod

Keywords: Stay application; RJR-Macdonald v. Canada; three-part test; irreparable harm

This was an application for a stay of the decision of the Assistant Regional Waste Manager (“the Manager”) to amend a waste permit held by the City of Cranbrook. The amendments required Cranbrook to manage the water level in a sewage effluent storage lagoon so that it would not exceed a stipulated level. Cranbrook appealed the decision and requested a stay of the amendments until engineering opinions were made available that justified a significant change to the effluent storage elevation, or until the Board made a decision on the merits of the appeal.

The Panel applied the three part test as set out in the Supreme Court of Canada decision in RJR-Macdonald v. Canada to determine whether to issue a stay in this case. The Panel found that there was a serious issue to be tried, but also found that Cranbrook had failed to show that it would suffer irreparable harm if a stay was not granted. The Panel found that the amendment did not require the city to reduce the effluent level immediately, but that it undertake a survey and initiate a plan to lower the level. The Panel found further that any harm that Cranbrook could suffer would be economic and did not constitute irreparable harm, as the economic harm would be quantifiable and recoverable as damages. On the question of the balance of convenience, the Board found that the interest in preventing harm to the environment, the public health and CP Rail outweighed the relatively minimal harm, if any, to Cranbrook. The Panel denied the application for a stay, but granted an extension of the deadline for compliance with the amendments.