Decision Date: April 24, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – s. 101(1); preliminary decision; stay application, remediation order; contaminated site

Seaspan ULC (“Seaspan”) appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment, which pertains to a contaminated site located in North Vancouver.

In April 2010, the Director issued a remediation order that requires Domtar and Seaspan to prepare a remediation plan, and remediate the site to certain standards. However, Seaspan and Domtar were unable to agree on a remediation plan for the site. In particular, they disagreed on the appropriate design for a barrier wall, a key component of the remediation. As a result, they submitted separate plans for the Director’s consideration.

In January 2013 decision, the Director decided that the two final site remediation plans were both acceptable, and the Director left it to those two parties to decide which of the plans would be implemented at the contaminated site. The Director also advised that the requirement in the 2010 remediation order to implement a site remediation was in effect immediately.

Seaspan and Domtar filed separate appeals of the Director’s January 2013 decision. In addition, as a preliminary matter, Seaspan requested a stay of the January 2013 decision, pending the Board’s decision on the merits of the appeal. Specifically, Seaspan requested a stay of the requirement to immediately implement a remediation plan.

The Director opposed the stay application.

Domtar submitted that the Board should order a 14-week stay of the requirement on Seaspan and Domtar to submit a remediation plan, and allow the either party to extend the stay at any time during the last four weeks of that 14-week period.

Fibreco Export Inc./602534 BC Ltd. and Vancouver Fraser Port Authority provided no submissions on the stay application. The Attorney General of BC took no position on the stay application.

In determining whether the stay application ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). With respect to the first stage of the test, the Board found that the appeal raised serious issues to be decided. Although the appeal raised questions of law, the Board’s decision on those questions would directly affect the interests of Seaspan and Domtar, and how the site remediation would be carried out. Consequently, the issues raised by the appeal were not frivolous or purely academic, and the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found held that the appeal involved unique circumstances, in that two remediation plans were submitted for approval and both were approved, but only one plan can be implemented. Further, both of the persons responsible for remediation appealed the Director’s decision, and both claimed that their remediation plan should be implemented, for different reasons. Thus, it was clear that any agreement as to which plan should be implemented would not be reached quickly. The Board held that, if a stay was denied, Seaspan would be required to implement a remediation plan immediately, and there would not be time for Seaspan and Domtar to negotiate an agreement regarding which plan to implement. The Board found that this would expose Seaspan to business uncertainty and potential financial costs, and Seaspan’s interests would be partially dependent on the actions or inactions of Domtar, which disputed Seaspan’s remediation plan and sought approval of its own plan. In these circumstances, the board held that Seaspan’s interests would suffer irreparable harm.

Turning to the third part of the test, the Board weighed the potential harm to Seaspan‘s interests if a stay was denied, against any potential harm to the interests of the Director or Domtar if a stay was granted. The Board found that the balance of convenience favoured granting a stay. In particular, the Board found that the appeal was being heard on an expedited basis, and the limited delay caused by a stay would not exacerbate the harm to the environment that has already occurred. Moreover, even if a stay was denied, it would take months before a plan was implemented, because the parties required a permit from the Vancouver Fraser Port Authority before they could begin remediation.

Accordingly, the stay application was granted.