Decision Date: June 20, 2017

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 25; preliminary decision; stay application; permit; air emissions; defence of statutory authority

Harvest Fraser Richmond Organics Ltd. (“Harvest”) operates a composting and bioenergy facility on federal land near Richmond, BC. In September 2016, the District Director for the Greater Vancouver Regional District (“Metro Vancouver”) issued a renewed air quality permit to Harvest under the Environmental Management Act (the “Act”) and the Greater Vancouver Regional District Bylaw No. 1028, 2008 (the “Bylaw”), authorizing Harvest to discharge air contaminants from the facility. The renewed permit contained several new requirements or conditions that were not part of Harvest’s previous air emissions permit, including a condition that the District Director could order the facility to stop receiving food waste if he determined that the malodourous impacts from the facility exceeded a threshold (the “Sniff Test”) set out in the permit.

23 appeals against the permit were filed by individuals residing in Richmond or surrounding municipalities, who asserted that odours from the facility were adversely affecting their health and/or interfering with their ability to enjoy breathing fresh air where they live, work, recreate, etc. In addition, Harvest appealed the permit.

The Appellants Isabel and Marc Brenzinger requested a stay of the permit pending the Board’s final decision on the merits of the appeals. In determining whether the Brenzingers’ stay application 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 RJR-MacDonald test, the Board found that the Brenzingers’ appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. In addition, the Board rejected Harvest’s argument that the defence of statutory authority applied and that the odours emitted by the facility were an inevitable result of an activity authorized by statute. The Board found that the defence of statutory authority has been applied by in court cases involving civil liability for damages under the principles of negligence and nuisance, but the defence has no application to a statutory appeal under environmental legislation, and in any event, Harvest provided no evidence that the odours from the facility were an inevitable result of an activity authorized by statute. Consequently, the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found that the Brenzingers, as the applicants for a stay, had the onus of establishing that their interests would likely suffer irreparable harm if a stay of the permit was denied. The Board found that the general information provided by the Brenzingers regarding the potential effects of certain air emissions on the environment and human health was insufficient to establish that their health and well-being, or the environment, would likely suffer irreparable harm if a stay was denied.

Turning to the third part of the test, the Board weighed the potential harm to the Brenzingers’ interests if a stay was denied, against the potential harm to Harvest if a stay of the permit was granted. The Board found that if a stay was denied, the Brenzingers might experience unpleasant odours that they attributed to the facility. However, under the permit, the District Director may order the facility to cease accepting food waste if there is a breach of the Sniff Test in the permit. As such, the Board found that the permit provided the District Director with a timely way to stop the facility from generating unpleasant odours. In contrast, if a stay was granted, Harvest would have no authorization to discharge air emissions and would eventually have to cease operations. Harvest provided evidence that if the facility ceased operations, Harvest would likely suffer significant financial harm and possibly even bankruptcy. For those reasons, the Board concluded that the potential harm to Harvest’s interests, if a stay was granted, outweighed of the potential harm to the Brenzingers’ interests if a stay was denied, pending the Board’s decision on the merits of the appeals.

Accordingly, the Brenzingers’ application for a stay of the permit was denied.