Decision Date: April 4, 2017

Panel: Alan Andison

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

Harvest Fraser Richmond Organics Ltd. (“Harvest”) operates a composting and bioenergy facility on federal land located near Richmond, BC. In September 2016, the District Director for the Greater Vancouver Regional District 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 Act provides the Greater Vancouver Regional District with the authority to regulate air emissions within its region. The renewed permit included a provision which provided that the District Director may 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.

Harvest appealed the permit on several grounds. Harvest submitted that the Sniff Test and other aspects of the permit were arbitrary, vague, unreasonable, and/or punitive. Harvest also challenged the District Director’s jurisdiction to regulate air emissions from the facility given that it is located on federal land.

Harvest requested several remedies, including a stay of the Sniff Test portion of the permit pending the Board’s final decision on the merits of the appeal.

In addition, 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 March 2017, after the appeals were filed, the District Director notified Harvest that it had breached the Sniff Test, and ordered Harvest to immediately stop accepting food waste until he determined that the malodours were addressed. One day later, the District Director rescinded that order.

In determining whether Harvest’s 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 test, the Board found that Harvest’s appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. Consequently, the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found that Harvest, as the applicant for a stay, had the onus of establishing that its interests would likely suffer irreparable harm if a stay of the Sniff Test was denied. The Board found that Harvest had failed to do so. The Board found that Harvest’s assertions that it would suffer irreparable harm, if a stay was denied, rested on the assumption that it was inevitable that the facility would shut down as a result of the Sniff Test. The Board found that a breach of the Sniff Test resulting an order to cease accepting food waste, even for one day, would result in Harvest losing some revenue, but there was no evidence that such an order would likely cause Harvest to suffer irreparable harm. For example, there was no evidence that such an order would likely cause Harvest to go out of business, or suffer permanent market loss or damage to its business reputation. Also, such an order would not stop Harvest from selling the products that are produced at the facility.

Turning to the third part of the test, the Board weighed the potential harm to Harvest’s interests if a stay of the Sniff Test was denied, against the potential harm to the environment and the public if a stay of the Sniff Test was granted. The Board found that, in the event that Harvest breached the Sniff Test, there was a risk that Harvest would suffer a temporary loss of revenue if a stay was denied. However, the Board found that granting a stay of the Sniff Test would leave the District Director with no other timely way to stop the facility from generating odours that may adversely affect the quality of life and health of people near the facility. There was evidence that such odours had emanated from the facility in the past, and if the odours re-occurred but a stay prevented the District Director from stopping the odours in a timely manner, notwithstanding the concerns Harvest had raised about the Sniff Test, the harm to the public’s interests would be irreparable.

For those reasons, the Board concluded that the balance of convenience favoured denying a stay of the Sniff Test portion of the permit, pending the Board’s decision on the merits of the appeal.

Accordingly, Harvest’s application for a stay of the Sniff Test was denied.