The cities of Port Coquitlam, Coquitlam and Port Moody appealed the issuance of a Pesticide Use Permit to Canadian Pacific Railway (“CP Rail”) for the use of herbicides on its tracks and ballast from Lytton to Vancouver, and on the company’s yards in Port Coquitlam. By June 12, 1998, CP Rail had finished all the spraying from Coquitlam to Vancouver, and 80% of the spraying in its yards. On July 7, 1998, the cities requested a stay of the decision to issue the Permit, pending the Board’s decision on the appeal.
The Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). The Board found that there was a serious issue to be tried regarding possible harm to fish and wildlife habitat near the spray areas. In addition, the Board found that if any wildlife in the yard (i.e., Canada geese) ate herbicide-sprayed grain that was known to often spill in the yard, this would constitute irreparable harm to the cities’ interest in protecting wildlife, as it would be difficult to remedy the poisoning of geese. Similar consideration applied to watercourses and fish habitat. In weighing the balance of convenience, the Board noted that the rail yards were not a natural habitat for the geese and that the spraying might encourage the geese to move to a more natural habitat. In addition, the Board noted that if a stay were granted, it would effectively prevent CP Rail from using the spray, as the appropriate time for application would have passed. Thus, the Board found the potential harm to CP Rail, its employees, and the public through fires, derailment and injury was serious and outweighed the potential harm to the environment. The request for a stay was refused.