Decision Date: September 14, 2000

Panel: Alan Andison

Keywords: Pesticide Control Act – s.15; stay application; pesticide use permit.

This was an application by the Resort Municipality of Whislter (“Whistler”) and the Squamish-Lillooet Regional District (“SLRD”) for a stay of a pesticide use permit issued to BC Rail by the Deputy Administrator, Pesticide Control Act.

The pesticide use permit authorizes the application of certain herbicides to the BC Rail right-of-way between mile 0 (North Vancouver) and mile 100 (north of Pemberton). The permit contains a number of conditions, including public notification, pesticide-free zones, and reporting requirements. Whistler and SLRD oppose the permit primarily on the grounds that the spraying will have potential harmful effects on water supplies and the natural environment within their respective municipal boundaries.

The Board applied the three-part test for a stay application as set out in the decision of the Supreme Court of Canada in RJR Macdonald v. Canada. The Board found that both Whistler and SLRD had established that there was a serious issue to be tried. The Board determined that SLRD had not adequately established that it would suffer irreparable harm, and its application was dismissed accordingly. However, the Board found that Whistler would suffer irreparable harm if a stay was not granted, primarily due to the proximity of Whistler’s water sources to the BC Rail right-of-way. The Board further determined that the balance of convenience favoured the granting of a stay. The potential harm to Whistler’s water supply if a stay was refused outweighed the potential harm caused by vegetation along the right-of-way. BC Rail had not adequately shown that dangers due to vegetation on its right-of-way were imminent. Hence, the application for a stay by SLRD was refused, and the application for a stay by Whistler within its municipal boundaries was granted.