Decision Date: June 5, 1997

Panel: Judith Lee

Keywords: Waste Management Act, 1982 – ss. 22, 22.2, 29; stay of order; RJR-MacDonald Inc. v. Canada (Attorney General); American Cyanamid test; Manitoba (Attorney General) v. Metropolitan Stores Ltd; Waste Management Amendment Acts, 1982, 1993; BC Ministry of Environment, Lands and Parks (MELP) v. Alpha Manufacturing; Lamford Forest Products and Manning Jamison Ltd

The Appellant landowners applied for a stay of Pollution Abatement and Pollution Prevention Order OS-14991 pending its appeal. The Deputy Director of Waste Management made the Order to address coal tar contamination of lands adjacent to the Fraser River in Vancouver. It required the landowners to conduct a site investigation, submit a technical report of their results within three months of the Order, and to submit a plan for remediation within five months.

The tripartite American Cyanamid test was applied. The Board held that there were serious issues in the appeal and that financial damages that would be incurred by the Appellants if they complied with the Order constituted irreparable harm because of the uncertainty of recovery. However, the Board also found that there was clear potential for irreparable harm to fish and other species from the coal tar pollution. The Board weighed the burden to the Appellants of compliance against the public interest represented by the Order and concluded that the balance of convenience favoured compliance with the site investigation and technical report requirements. The deadline for completion of the investigation report was extended however, and the part of the Order which required a remediation plan to be submitted was stayed until a decision is reached in the appeal. The Board offered to re-visit this issue after March 30, 1998 if the matter was still before the Board. Stays of Parts 1 and 2 of order denied, stay of Part 3 granted.