Decision Date: October 12, 2000

Panel: Alan Andison

Keywords: Waste Management Act – s. 48; Inquiry Act – s. 15; stay application; summons duces tecum; expert evidence; litigation privilege; oral hearing; cross-examination of expert reports; use of evidence in stay application; merits of appeal; public interest

The Regional Waste Manager (the “Manager”) made a number of applications to the Board relating to the evidence to be presented in a hearing in which the Appellants seek to stay the operation of an amended remediation order issued by the Manager. The Manager applied for a summons duces tecum, and to exclude the Appellants’ expert reports from consideration in the stay application, or in the alternative, to convert the format of the stay hearing from written submissions to oral submissions.

In considering the admissibility of the Appellants’ expert reports, the Board reviewed the evidentiary requirements of the three-part test for a stay, as outlined by the Supreme Court of Canada in RJR-Macdonald v. Canada. At the “serious issue” stage of the test, which requires a limited review of the case on its merits, the Board found that the mere existence of conflicting expert reports may be indicative of a serious issue. The Board also found that due to the low threshold and limited nature of review, it would rarely be necessary to consider the content of such reports at this stage. At the “irreparable harm” stage of the test, expert evidence may be admitted where it is relevant to establish the impact of complying with the amended order on the Appellants. Finally, at the “balance of convenience” stage of the test, expert evidence may be admitted where it is relevant to establish whether the harm to one party if the stay is granted is outweighed by the harm to the other if the stay is refused. For example, it would be permissible for the Appellants to tender expert reports that address the likelihood of harm to the environment if a stay is granted. With respect to harm to the government, the Board found that where a public authority establishes that it is charged with the duty of promoting or protecting the public interest, and that action was taken pursuant to that authority, then the onus of demonstrating harm to the public interest will nearly always be satisfied. As such, it would generally not be necessary to prove that actual harm would result from the restraint sought. In conclusion, the Board limited the use of the Appellants’ expert reports to the purposes described above.

In considering whether to convert the format of the stay hearing from written submissions to oral submissions, the Board found that the stay application should continue in writing. In particular, the Board found that whether an oral hearing and cross-examination is required under the principles of procedural fairness will depend on a number of contextual factors. The case at hand concerns an interlocutory application and, as such, is not a final disposition of the matter. Furthermore, the Board usually conducts such applications in writing, and all the parties in this case have had adequate opportunity to make their case and respond to the other side under the current written format.

Finally, the Board considered whether it could issue a summons duces tecum to compel the production of an “independent review” of one of the Appellants’ expert reports. The Board found that the dominant purpose of the requested document was to assist the Appellants in the conduct of litigation and, as such, was subject to a litigation privilege. The Board also found that the Appellants had not waived the privilege, and accordingly, the Board denied the application.

In summary, the application for a summons duces tecum was denied, the application to exclude expert reports was granted in part, and the application to convert the stay hearing to an oral format was denied.