Decision Date: August 27, 1998

Panel: Toby Vigod

Keywords: Waste Management Act – ss. 26.5, 26.6, 27, 27.1, 27.3; stay; remediation; responsible person; contaminated site; RJR-Macdonald Inc. v. Canada

This was an application for a stay of a Remediation Order issued by the Deputy Director of Waste Management to address coal tar contamination at 9250 Oak Street, Vancouver, and adjacent lands and waters. Six appeals were filed against the Order. Three of the Appellants applied for a stay of the Order pending a hearing of the appeals on their merits.

The Board applied the usual three part test to determine whether to issue a stay of the Order. It found that the issues to be decided were neither frivolous nor vexatious, nor pure questions of law. Although the Deputy Director had argued that the Board should apply the stricter “strong prima facie case” test to determine whether there were serious issues to be tried, the Board disagreed. It found that the “frivolous and vexatious” test was most appropriate in this type of case. However, the Board found that the applicants failed to show that they would suffer irreparable harm if the stay was not granted. It noted that the Waste Management Act contemplates compensation for the applicants’ participation in the remediation effort. The Board also found that the claims of financial harm due to lost opportunity costs and inability to fully recoup expenses through the litigation process were highly speculative and unclear, and that lost opportunity costs have never been the test for irreparable harm. The Board noted that none of the parties argued that their potential losses would bankrupt them or cost them significant market share.

Finally, the Board noted that the public interest favoured dealing with the ongoing contamination as quickly as possible and that, granting a stay against one or more persons, but allowing remediation to proceed with respect to other responsible persons, would result in confusion and additional delays in the remediation effort. The applications for a stay were denied.