Decision Date: October 15, 1999

Panel: Toby Vigod

Keywords: Waste Management Act – s. 48; stay application; funding requirement; pulp mill effluent; taint; eulachon; test development committee

This was a stay application in an appeal against a decision of the Regional Waste Manager which required West Fraser to fund, to a maximum of $18,075, the participation of a representative of the Haisla First Nation in a committee set up to develop taint compliance testing for eulachon fish harvested near the Eurocan pulp mill in Kitimat, B.C. West Fraser requested a stay of the Regional Manager’s decision pending the outcome of the appeal on its merits.

The Board cited its decision in North Fraser Harbour Commission et al. v. Deputy Director of Waste Management (Appeal No. 97-WAS-05(a), June 5, 1997) in finding that the test for stay applications set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General)(1994) applies to applications for stays before the Board. This test requires an applicant to demonstrate that there is a serious question to be tried, that irreparable harm will result if the relief sought is not granted, and that the balance of convenience favours granting a stay.

The Panel found that West Fraser’s concerns were neither frivolous nor vexatious and so warranted further investigation. The Panel also found that, although the harm from complying with the decision could be quantified as costs up to $18,075, it was uncertain whether these costs would be recoverable in the event that the appeal was decided in favour of West Fraser. The Panel therefore accepted that West Fraser could suffer some financial loss and that the loss constituted irreparable harm.

On the question of the balance of convenience, the Panel found that, if a stay were granted, the risk of irreparable harm to the Regional Manager’s interest in ensuring that the Haisla would be represented in the application of compliance testing exceeded the risk of financial irreparable harm to West Fraser if the stay were not granted. The Panel therefore found that the balance of convenience did not favour the granting of a stay. In addition, the Panel found that West Fraser provided no evidence to show that paying all or part of the cost for the Haisla representative’s participation would result in serious financial harm to West Fraser.

The Panel did not find that refusal to issue a stay would render the appeal moot, as the jurisdictional questions raised in the appeal were not determined by the outcome of the preliminary decision on the stay application. The request for a stay was denied.