Decision Date: February 18, 1998

Panel: Toby Vigod

Keywords: Stay application; serious issue; irreparable harm; balance of convenience

International Forest Products Limited, (Appellant) requested a stay of a condition in an Amended Pollution Abatement and Prevention Order issued on January 23, 1998. The Order had been amended to include the Appellant and the other parties because the Respondent had reasonable grounds to believe that pollution of Burrows Ditch and related tributaries in Surrey, B.C., was occurring as a result of the unauthorized dumping of wood waste at two properties in the area. One of the requirements listed in the Amended Order was that the parties submit within 7 days a written plan, prepared by a qualified person, to prevent and abate the pollution. The Appellant requested an expedited stay of this requirement as it related to itself. The Board issued an interim stay on February 3, 1998 on an ex parte basis, pending further submissions from the parties. This summary is of the final stay decision, made with the consideration of those submissions.

The Board found that it was satisfied that there was a serious issue to be tried and that the stay application was neither frivolous nor vexatious. The Respondent provided no information to indicate that irreparable harm could result to either the government or the environment if the stay were granted. Conversely, the Appellant raised a concern that it might be held liable for fines or charges if for some reason it were determined that it continued to be responsible for filing a plan and failed to do so. The Board found that such charges would constitute irreparable harm. Also, it was found that it appeared to be unfair to demand that the Appellant prepare a plan when it had not been given access to the subject property. Finally, the Board noted that a prevention and abatement plan had been supplied by one of the other parties and that the Respondent was therefore satisfied that the Order had been complied with. The Board therefore held that the balance of convenience favoured the granting of a stay pending a final decision on the merits of the appeal.