Decision Date: December 5, 2017

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 25; Environmental Management Act – ss. 54, 64; contaminated site; remediation plan; independent remediation; stay application

Gibsons Alliance of Business and Community Society and Marcia Timbres (the “Appellants”) appealed certain parts of a letter (the “Letter”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy. The July Letter was issued to The George Gibsons Development Ltd. (the “Developer”), and pertained to the Developer’s proposed remediation plan for a contaminated site located in Gibsons, BC. In particular, the Appellants appealed the Director’s statement in the Letter that, after reviewing the Developer’s proposed remedial plan and schedule, the Ministry was “supportive of the plan and schedule for the investigation and remediation of high risk conditions at the site and affected off-site parcels”. The Director also referred to the proposed remediation plan and schedule as the “accepted remedial plan and schedule”. In a previous decision (Decision No. 2017-EMA-010(a)), the Board determined that the appealed portions of the Letter constituted an appealable “decision” under section 99(c) of the Environmental Management Act.

As a preliminary matter, the Appellants requested a stay of the appealed portions of the Letter, pending the Board’s decision on the merits of the appeal.

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 the Appellants, as the applicants for a stay, had the onus of establishing that their interests would likely suffer irreparable harm if a stay was denied. The Board found that granting a stay would suspend, pending the outcome of the appeal, the Director’s statement of support for the remedial plan and schedule, but would not stop the Developer from carrying out independent remediation of the site, which does not require prior approval from a director. Thus, a stay would not suspend the risk of irreparable harm, alleged by the Appellants, that the proposed remediation would likely cause harm to human health and the environment. In addition, the Board found that if a stay was denied, the issues raised by the appeal regarding procedural fairness and a lack of reasons for the appealed decision would not necessarily be moot. Consequently, the Board concluded that the Appellants failed to establish that their interests were likely to suffer irreparable harm if a stay was denied.

Turning to the third part of the test, the Board weighed the potential harm to the Appellants’ interests, if a stay was denied, against the potential harm to the other parties’ interests if a stay was granted. The Board found that there was no evidence that granting a stay would adversely affect the Developer’s interests, since a stay would not stop the Developer from proceeding with the proposed remediation. However, there was also insufficient evidence to conclude that denying a stay would have a significant adverse effect on the Appellants’ interests. Given that the onus was on the Appellants to establish sufficient reasons for granting a stay, and the Appellants had not met that onus, the Board concluded that the balance of convenience favoured denying a stay.

Accordingly, the stay application was denied.