Decision Date:March 9, 2018

Panel: Brenda Edwards

Keywords: Administrative Tribunals Act – s. 25; Environmental Management Act – s. 15; air emissions; permit; stay application

Weir Canada Inc. (“Weir”) operates an industrial rubber rebuilding facility in Surrey, BC. The facility provides custom cutting, assembly and rubber lining of pipeline segments used in the mining and oil and gas industries.

In 2017, the District Director for the Greater Vancouver Regional District (“Metro Vancouver”) issued a permit to Weir under the Environmental Management Act (the “Act”) and the Greater Vancouver Regional District Bylaw No. 1028, 2008 (the “Bylaw”), authorizing the discharge of air contaminants from the facility.

The permit was valid until October 29, 2032, and applied to “existing or planned works” at the facility. When the permit was issued, the existing works that were regulated by the permit consisted of a grist blasting booth, welding stations, paint booth, and rubber buffing station. The permit also regulated emissions from a rubber adhesive booth, urethane curing ovens, and urethane adhesive booths, but Weir had no immediate plans to install those works. The permit contained numerous requirements and conditions including maximum emission flow rates and maximum emission concentrations for each emission source at the facility, as well as requirements for monitoring and reporting air emissions.

Six appeals against the permit were filed by individuals or businesses (the “Appellants”), who asserted that air emissions from the facility would adversely affect the environment, human health, animal health, and business reputations.

Each of the Appellants filed applications requesting a stay of the permit pending the Board’s final decision on the merits of the appeals. In determining whether the stay applications ought to be granted, the Board applied the three-stage 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 appeals raised serious issues which are not frivolous, vexatious, or pure questions of law. Consequently, the Board proceeded to consider the next stage of the test.

Regarding the second stage 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 the Appellants failed to provide any evidence that, if a stay is denied, emissions from the facility would likely cause irreparable harm such as permanent loss of natural resources, permanent harm to the environment or human health, or permanent harm to any of their business interests. The Appellants raised general concerns about the potential harm to human health, the environment, and their business interests, but those concerns amounted to speculation and conjecture. 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 stage of the test, the Board weighed the potential harm to the Appellants’ interests, if a stay was denied, against the potential harm to Weir’s interests if a stay was granted. Weir provided evidence that it would suffer operational, financial, and commercial harm if a stay was granted. The Board found that there was a substantial likelihood that Weir would suffer increased costs and harm to its business interests, and its employees would be at greater risk of adverse health effects from particulate matter, if a stay was issued and Weir was unable to operate under the permit and utilize the facility’s filtration system. The Board also found that it was unclear whether the increased costs and damage to Weir’s business interests could be recovered by Weir in the event that the appeals were unsuccessful. In contrast, there was no evidence that the Appellants would likely suffer irreparable harm if a stay was denied. In these circumstances, the Board concluded that the balance of convenience favoured denying a stay.

Accordingly, the stay applications were denied.