Decision Date: June 20, 2017

Panel: Brenda L. Edwards

Keywords: Administrative Tribunals Act – s. 25; Environmental Management Act – s. 99; Organic Matter Recycling Regulation – ss. 3.1, 23(2), 33; Public Notification Regulation; permit; composting facility; public notice; stay application

Revolution Organics Limited Partnership (“Revolution”) appealed a letter issued by the Acting Deputy Director (the “Director”), Ministry of Environment (the “Ministry”). The letter addressed the content and timelines for a public notice that Revolution was required to issue. The public notice was regarding Revolution’s application for a permit for its composting facility located near Lytton, BC. Revolution’s facility is integrated with an organic farm, and processes material such as wood chips, tree cuttings, grass clippings, certain food products, and paper products. Revolution submitted the permit application to the Ministry under protest. Revolution asserted that it did not need a permit because its facility does not discharge waste and already holds an approval from the Ministry.

As a preliminary matter, Revolution requested a stay of the public notification requirements in the Director’s letter, pending the Board’s decision on the merits of the appeal.

The Director opposed the stay application, but consented to an interim stay until either August 31, 2017 or when the Board issued its final decision on the appeal, whichever occurred first.

In determining whether the 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 the appeal raised serious issues which are 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 Revolution, as the applicant for a stay, had the onus of establishing that its interests would likely suffer irreparable harm if a stay was denied. The Board found that Revolution had provided insufficient evidence to support its claim that providing public notice in accordance with the Director’s decision letter would cause it to suffer irreparable harm. There was no evidence that providing such public notice would permanently harm Revolution’s business reputation, cause it to suffer unrecoverable business losses, or result in closure of the composting facility. Also, Revolution’s appeal would not be rendered moot if a stay was denied. The Board held that the harm that Revolution alleged it would suffer was speculative.

Turning to the third part of the test, the Board weighed the potential harm to Revolution’s interests, if a stay was denied, against the potential harm to the interests of the Director and the general public if a stay was granted. The Board found that delaying public notification would hinder the Director’s ability to carry out her responsibilities under the applicable legislation, which was adopted to address public concerns regarding composting facilities and their potential impacts on the surrounding environment and the public. The Board found that there was evidence of potential concerns about the potential environmental impact of the facility, and public complaints about odours from the facility, and the public interest in Revolution completing the public notification requirements in a timely manner outweighed any inconvenience to Revolution. The Board concluded that the balance of convenience favoured denying a stay, pending the Board’s decision on the merits of the appeal.

Accordingly, the stay application was denied.