Decision Date: August 28, 1998

Panel: Toby Vigod

Keywords: Waste Management Act – ss. 26, 26.5, 27, 27.1, 48; stay; RJR-Macdonald v. Canada; contaminated site; remediation.

This was an application for a stay of a Remediation Order issued to Halme’s Auto Service, Petro Canada, and Chardale Enterprises to address hydrocarbon contamination at a service station site. Halme’s appealed the Order and requested a stay pending an appeal decision. Petro Canada subsequently filed an appeal of the Order and did not oppose a stay. Chardale and the Regional Waste Manager argued that a stay should not be granted.

The Board applied the usual three part test to determine whether to issue a stay in this case. It found that there was a serious issue to be tried and that the appeal was neither frivolous, vexatious, nor dealt with pure questions of law. However, the Board found that Halme’s failed to show that it would suffer irreparable harm if a stay was not granted. It found that any costs Halme’s reasonably incurred by complying with the Order would be easily quantifiable and recoverable in damages. Further, there was no evidence that the potential losses would bankrupt Halme’s or cost it significant market share. The Board also rejected Halme’s claims of lost opportunity costs. On the question of balance of convenience, the Board found that the public interest in dealing with the contamination as quickly as possible carried considerable weight and did not favour granting a stay of the Order in this case. The application for a stay was denied.