Decision Date: December 10, 2018

Panel: Alan Andison

Keywords: Environmental Management Act – s. 14; Administrative Tribunals Act – s. 25; stay application; permit; odour; air emissions

GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility receives organic waste from Vancouver and other municipalities in the region for processing to produce compost, the majority of which is utilized for turf/sod farming at the facility. The facility holds a licence issued by the Greater Vancouver Sewerage and Drainage District to accept the following for composting: food waste, yard waste, soiled paper, packaged organic waste, as well as certain industrial organic wastes, certain agricultural organic wastes, and bulk liquids.

In August 2018, the District Director for the Greater Vancouver Regional District (“Metro Vancouver”) issued an air quality management permit to GFL under the Environmental Management Act and the Greater Vancouver Regional District Bylaw No. 1028, 2008. The permit authorizes GFL to discharge air contaminants from the Delta facility, subject to numerous terms and conditions.

GFL appealed certain terms and conditions in the permit, and applied for a stay of two categories of terms and conditions pending a decision on the merits of its appeal. It described the two categories of terms and conditions as:

• contradictory and inappropriate permit terms with respect to aeration; and
• permit terms restricting monthly volumes of compostable materials that may be received at the facility, which restrictions are inconsistent with the facility’s licence and which prevent the facility from meeting its contractual commitments in seasons with high volumes of green yard waste.

GFL submitted that compliance with those terms of the permit would likely increase the odours from the facility, and the terms conflicted with other permit terms requiring best operating practices.

In addition to GFL’s appeal, the Board received 19 appeals filed by local residents against the permit. In general, they appealed on the basis that the community has been affected by odours from the facility for years, and odours had increased since 2016 because GFL was not using best operating practices. Further, they alleged that GFL may not be complying with its permit, the Agricultural Land Commission Act, or municipal zoning bylaws.

In determining whether GFL’s stay application ought to be granted, the Board applied the three-part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.).

With respect to the first stage of the test, the Board found that GFL’s appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. Therefore, the Board proceeded to consider the next stage of the test.

The second part of the test required GFL, as the applicant for a stay, to establish that its interests would likely suffer irreparable harm if a stay of the two categories of permit terms was denied. The Board found that GFL provided insufficient evidence to establish that its interests would likely to suffer irreparable harm if a stay was denied. The Board found that GFL provided no evidence that refusal of a stay could reasonably result in GFL suffering a financial loss that may be unrecoverable, a loss of customers, or harm to its business reputation and/or reputation in the community.

The third part of the test required the Board to determine which party would suffer the greater harm from the granting or the denial of the stay application. The Board concluded that the balance of convenience weighed in favour of denying a stay of the two categories of permit terms. Despite GFL’s concern that the disputed aeration terms would increase odours from the facility, the Board held that there was no evidence that this was occurring, or would likely occur. Moreover, if an increase in odour occurred that was attributable to the permit terms, the District Director could amend the permit to address the problem. Similarly, there was no evidence that the monthly volume restrictions were causing, or would likely cause, irreparable harm to GFL. Even if evidence of such harm arose in the future, the District Director could amend the permit.

In addition, the Board found that the two categories of permit terms were included in the permit to protect the environment and public health, and were, on their face, in the public interest. The Board concluded that, on balance, the risk of increased odours from the facility if the terms were stayed pending a decision on the merits of the appeals, outweighed any financial harm or reputational harm that GFL may experience if the stay was denied.

Accordingly, the application for a stay was denied.