Decision Date: December 7, 1999

Panel: Toby Vigod

Keywords: Waste Management Act – s. 48; stay application; remediation order; posting of financial surety

This was a stay application in an appeal against a decision of the Director of Waste Management to issue a remediation order to Canadian Occidental Petroleum Ltd. (“COPL”) with respect to the former chlor-alkali plant site in Squamish, B.C. COPL applied for a stay of the requirement in the order that COPL post financial security in the amount of almost $3.5 million by December 6, 1999. The Board had previously granted an interim stay of the security requirement so that it could adequately consider the submissions of the parties.

The Panel applied the usual the test for stay applications before the Board and found that the application involved serious issues concerning questions of statutory interpretation and procedural fairness. The Panel also found that there was a risk of irreparable harm to COPL, as it was unclear that COPL would be able, in the event it was successful in the appeal, to recover from the government the $12,000 expense of posting the financial security in the form of a letter of credit. The Panel further found that there was no risk of irreparable harm to the environment or the public interest if the stay was granted, as alternatives were available to the Director to ensure that necessary remediation at the site in question would take place.

The Panel found, in weighing the balance of convenience, that the potential financial harm to COPL outweighed the benefits of requiring it to post the security by the December 6, 1999 deadline. The Panel noted that the stay would only delay the posting of security for a matter of months, if this requirement was upheld by the Board after the hearing on the merits of the appeal. The application for a stay was granted.