Decision Date: May 25, 2022

Panel: David Bird

Keywords: Integrated Pest Management Act – s. 6(1)(a); Administrative Tribunals Act – s. 25; aerial pesticide treatment; permit amendment; stay application; interim stay

Eight individuals (collectively, the “Appellants”) appealed a permit amendment issued by the Administrator, Integrated Pest Management Act (the “Administrator”), Ministry of Environment and Climate Change Strategy. The amendment was issued to the Ministry of Forests (the “Permit Holder”). The amended permit authorized the aerial spray of Foray 48B, a pesticide with the active ingredient Bacillus thuringiensis var. kurstaki (“BtK”), to eradicate the Lymantria moth from specified areas in Surrey, Lake Cowichan, Nanoose Bay, View Royal, Burnaby, Mission, Langley, and Chilliwack. The first round of pesticide treatments was scheduled in May 2022, with further treatments planned in June 2022. Btk is only effective on Lymantria moth larvae.

Shortly after the appeals were filed, two Appellants requested a temporary stay of the amended permit, pending the Board’s final decision on the merits of the appeals. Because the pesticide treatments had already begun and more treatments were scheduled to occur imminently, the Board held an expedited hearing of the stay applications and considered whether to grant an interim stay pending the Board’s decision on the merits of the stay applications.

To decide the interim stay, the Board conducted a preliminary analysis of the evidence on whether the pesticide use would likely cause irreparable harm, and whether the balance of convenience favoured issuing an interim stay, pending the Board’s decision on the merits of the stay applications. The Board found there was some evidence that there may be irreparable harm to human health if the pesticide treatment in the View Royal area proceeded before the Board could decide the merits of the stay applications. The Board found it was significant that there is a hospital, a recreational vehicle park, an addictions treatment center, and a cycling trail in or near the View Royal pesticide treatment area. The Board also noted the added vulnerability of homeless or low-income people in the treatment area and their lack of access to notifications about the pesticide treatments. Further, the Board considered that some people in the View Royal treatment area, such as patients at the hospital, may have respiratory and other health vulnerabilities. The Board’s concerns were based on evidence specific to the View Royal area, which did not apply to other treatment areas.

Regarding the balance of convenience, the Board acknowledged that an interim stay suspending the pesticide treatment scheduled to imminently occur in View Royal may cause some prejudice to the interests of the Administrator and the Permit Holder. However, the Board concluded that such prejudice would be minimal because there was still time to treat the View Royal area if the stay applications were ultimately denied.

Accordingly, the Board granted a partial interim stay of the amended permit. The interim stay was limited to the View Royal treatment area, and was in effect from May 21 to 31, 2022, or until the Board issued its decision on the merits of the stay applications.