Decision Date: November 25, 2009

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 104; stay; preliminary decision; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

Ermes Culos and four other persons (the “Applicants”) appealed a decision of the Director, Environmental Management Act, Ministry of Environment, to amend an operational certificate.  The amended operational certificate authorizes the Village of Cache Creek and Wastech Services Ltd. (“Wastech”) to manage municipal solid waste at a sanitary landfill located in Cache Creek, BC.  Among other things, the amendments authorize an expansion of the landfill’s footprint to include an additional 6.7 hectare area which is referred to as “Annex A”, located adjacent to the existing landfill.

The Applicants requested a stay of the Director’s decision pending the Board’s decision on the merits of the appeal.

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General).  With respect to the first stage of the test, the Board found that the Applicants had raised serious issues to be tried which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that the Applicants failed to establish that their interests in the environment and human health would suffer irreparable harm pending the outcome of the appeal unless a stay was granted.  The Board found that there was no evidence that allowing the construction of Annex A would cause irreparable harm.  The Board also found that allowing the operation of Annex A before it overlaps with the existing landfill would not cause irreparable harm.  There was conflicting evidence on the question of whether the use of Annex A will cause environmental harm once it overlaps with the existing landfill, but the Board held that it would be inappropriate to decide that question in a preliminary application, as it would amount to deciding the merits of the appeal, and in any case the appeal would likely be decided before the overlap occurred.

Turning to the third part of the test, the Board found that the balance of convenience weighed in favour of denying a stay.  The Board held that the Applicants had not demonstrated any harm to the environment or human health if a stay was denied, whereas granting a stay could interrupt Wastech’s business operations and affect its financial interests.  In addition, for the limited purpose of deciding the stay application, the Board found that many of the Director’s amendments appear to provide for the protection of the environment and human health, which are the very interests that the Applicants seek to protect.

Accordingly, the application for a stay was denied.