Decision Date: January 15, 2020

Panel: Brenda Edwards, Linda Michaluk, Reid White

Keywords: Environmental Management Act – s. 14; Administrative Tribunals Act – ss. 15, 25; permit; odour; air emissions; application for interim order; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility receives organic waste from Vancouver and other municipalities in the region for processing to produce compost, most of which is utilized for turf/sod farming at the facility. The facility holds a licence issued by the Greater Vancouver Sewerage and Drainage District to accept the following for composting: food waste, yard waste, soiled paper, packaged organic waste, as well as certain industrial organic wastes, certain agricultural organic wastes, and bulk liquids.

In August 2018, the District Director for the Greater Vancouver Regional District issued an air quality management permit to GFL under the Environmental Management Act and Greater Vancouver Regional District Bylaw No. 1028, 2008. The permit authorizes GFL to discharge air contaminants from the Delta facility, subject to numerous terms and conditions.

GFL appealed certain terms and conditions in the permit. It submitted that compliance with those terms of the permit would likely increase the odours from the facility, and those terms conflicted with other permit terms requiring best operating practices.

In addition, the Board received 17 appeals from local residents. In general, they objected to the permit on the basis that odours from the facility are adversely affecting the them, odours have increased over time because GFL is not using best operating practices, and the permit was inadequate to address the odours.

A 15-day oral hearing of the appeals began on June 3, 2019, but did not finish within the time that was planned. The hearing reconvened for 29 more days in October and November, 2019, but a further ten days were required. The District Director was not available to reconvene until March 2020. As a result, the hearing was set to reconvene on March 9, 2020.

GFL then made an interim application under section 15 of the Administrative Tribunals Act (“ATA”) for adjustments to certain deadlines and requirements in the permit that would take effect on March 1, 2020. In particular, GFL sought an interim variation of permit terms: regarding the use of “odour units” as an emission limit and compliance mechanism effective March 1, 2020, and related reporting requirements; and, setting March 1, 2020 as the start-up date for GFL’s new composting facility and the end of its existing facility’s operations. For some permit terms, GFL sought extensions to later dates in 2020, and for other terms it sought an extension until after the Board issued its decision on the merits of the appeals.

Shortly after GFL applied for an interim order, the Resident Appellants also applied for an interim order. They sought to vary and add terms in the permit pending the Board’s decision on the merits of the appeals. They also sought an order requiring that a separate permit be issued to GFL for the substantially new facility it was constructing on the same site as the existing composting facility. In a separate decision issued the same day as its decision on GFL’s application, the Board denied the Resident Appellants’ application for an interim order (Decision No. 2018-EMA-020(a), 022(a) – 028(a), 031(a) – 034(a), 036(a) – 040(a)).

In deciding GFL’s application, the Board first considered whether it has the authority to grant the requested relief as an interim order under section 15 of the ATA, or whether the relief amounted to a stay of the permit under section 25 of the ATA. The Board found that section 15 provides the Board with broad discretion to make any interim order that it may make on a final basis, and the requested interim relief in this case was within the Board’s general jurisdiction. The Board also noted that its power to make interim orders under section 15 is broader than its authority to stay all or part of a decision under appeal under section 25 of the ATA.

Given the nature of the interim relief sought by GFL, the Board held that GFL’s application could be addressed under either section 15 or 25 of the ATA. However, the Board decided to proceed under section 15 because although the result of some of the relief sought was similar to a stay, it would also provide for a transition between the end of operations at the current facility and the start of operations at the new facility, which was not contemplated in the permit.

In deciding whether to grant the relief sought by GFL, the Board decided to apply the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). First, the Board found that the appeal raised serious issues to be decided, including whether “odour units” ought to be used as a compliance mechanism. Second, the Board found that there would be irreparable harm to GFL’s interests if the application for interim relief was denied. Denying the application would render a large part of GFL’s appeal (i.e., the permit’s use of odour units as a compliance mechanism) moot. Before the Board could issue its decision on the merits of the appeals, GFL would have to either operate in non-compliance with the permit, or comply with the permit terms regarding odour units, which it could not do and would cause it to shut its operations as of February 28, 2020. Forcing a business to close, or else engage in unlawful conduct, may result in loss of revenue, customers, and harm to its business reputation, all of which are harm that is irreparable in nature. Third, taking into account public interest considerations as well as GFL’s interests, the Board found that the balance of convenience favoured granting the requested relief. GFL should not be subject to a more stringent odour standard while it appeals the validity of that standard. Also, it is not in the public interest to close a facility that assists municipalities in diverting waste from landfills, merely because the appeal process is taking longer than expected and the permit did not contemplate these circumstances. Neither is it in the public interest to set unachievable time frames for completing the new facility when the evidence, to date, was that construction delays were partly attributable to the District Director.

Accordingly, GFL’s application for an interim order varying certain terms of the permit was granted.