Decision Date: November 22, 2000

Panel: Alan Andison

Keywords: Waste Management Act – s.48; stay application; remediation order

The Appellants (“BCR Group”) appealed the decision of the Director to amend a remediation order (the “Order”) to include BCR Group as a person responsible, along with Canadian Occidental Petroleum Ltd. (“COPL”), for the remediation of the site of a former chlor-alkali plant in Squamish. In this application, BCR Group requested a stay of certain provisions of the Order, pending the disposition of its appeal. These provisions required BCR Group to undertake remedial measures and post financial security.

The Board applied the three-part test for a stay (serious issue, irreparable harm, and balance of convenience), as outlined by the Supreme Court of Canada in RJR-Macdonald v. Canada.

The Board found that the appeal raised serious issues regarding statutory interpretation and the proper exercise of discretion. With respect to irreparable harm, BCR Group claimed it would incur unrecoverable financial losses as a result of subsequent court actions, lost opportunity costs, administrative costs associated with the posting of financial security, and exposure to prosecution. The Board found that the costs identified by BCR Group would not amount to irreparable harm, and noted that BCR Group may recover its costs of remediation by pursuing actions under the Act or under private agreements. The Board also found that the balance of convenience did not favour either BCR Group or COPL, and that BCR Group had not raised any factors that would outweigh the public interest in the continued application of the remediation order.

By consent of the parties, BCR Group was granted a stay of the provision of the Order regarding the posting of financial security. However, a stay was denied on the other provisions of the Order. Accordingly, the application was allowed, in part.