Decision Date: August 6, 1999

Panel: Toby Vigod

Keywords: Stay ; “Vision”; RJR-MacDonald Inc. v. Canada (Attorney General); cutblocks; conifers.

This was an appeal by Raincoast from the April 23, 1999 decision of the Deputy Administrator to issue a Pesticide Use Permit to Interfor. The Permit specified several conditions for the use of Vision on a number of cutblocks in and around Kingcome Inlet to release conifer plantations from the competition of target deciduous species. Raincoast appealed the Deputy Administrator’s decision and requested a stay of the Permit pending a decision of the Board on the merits of the appeal.

The Board applied the usual three-step test to determine whether to issue a stay. The Board found that Raincoast raised issues concerning the potential for harm to fish and wildlife. The Board found that these issues were neither frivolous nor vexatious and that there was a serious issue to be tried. On the question of irreparable harm, the Board found that even considering the clauses in the Permit that specifically aim to protect fish-bearing streams, it was still possible that Vision could come into contact with fish, and there was no question that such contact could cause irreparable harm. With respect to the potential for irreparable harm to other wildlife if a stay was not granted, the Board found as fact that the application of Vision would suppress the growth of deciduous vegetation, including plants which wildlife feed on. Therefore, the Board found that the application of Vision would have some impact on the vegetation in sprayed areas, and could irreparably harm the wildlife that forage in those areas. Even without considering the potential for irreparable harm to local First Nations, the Board found that application of Vision as authorized by the Permit could cause irreparable harm to fish and wildlife.

The balance of convenience test required that the Board in this case weigh the potential harm to fish and wildlife if a stay were not granted against the potential harm to Interfor if its crop trees were damaged as a result of the issuance of a stay. The Board found that Interfor could suffer some irreparable harm if a stay were issued, in that some plantations could fail, and Interfor had already made significant financial investment in those plantations. The Board found, however, that this potential harm to Interfor could be mitigated. Therefore, the Board concluded that the potential for irreparable harm to fish and wildlife outweighed that which could result to Interfor. The application for a stay was granted.