Decision Date: April 8, 1999

Panel: Toby Vigod

Keywords: stay; Vision; RJR-MacDonald Inc. v. Canada (Attorney General)

The Coalition and Mr. Wadley appealed a decision of the Deputy Administrator to issue a Pesticide Use Permit to the Ministry of Forests for the use of the herbicide Vision on islands located in the Skeena River. The Appellants alleged that harm to moose forage, red-listed (rare and endangered) plant communities, fish habitat and waterbodies would result from the proposed herbicide use, and they requested a stay of the permit pending the appeal on the merits.

The Board applied the usual three-part test to determine whether to issue a stay. The Board found that the Appellants’ concerns were neither frivolous nor vexatious and that there was thus a serious issue to be tried. Secondly, the Board found that if the herbicide application did have a detrimental impact on the foraging moose population or any red-listed plant communities, irreparable harm to the Coalition’s interest in protecting them might result. Similarly, the Board found that any harm to fish habitat could result in a permanent loss of natural resources and that Mr. Wadley, as a fishing guide, might suffer permanent market loss or irrevocable damage to his business reputation. In weighing the balance of convenience, the Board noted that the Respondent favoured the granting of a stay, the issues surrounding the permit application were complex, and if the decision on the merits was issued prior to the 1999 spray window there would be no irreparable harm to the Permit Holder if a stay were granted. The Board found that the potential environmental consequences and harm to the Appellants’ interests in the event that a stay was not granted outweighed the potential economic losses that the Permit Holder might suffer if a stay were granted. The application for a stay was allowed.