Decision Date: October 5, 1998

Panel: Toby Vigod

Keywords: Roundup; Garlon 4; Pesticide Control Act – s. 15(8); stay; RJR-MacDonald v. Canada

This was an application by the City of Parksville, Regional District of Nanaimo, Cowichan Valley Regional District, and several individuals for a stay of a Pesticide Use Permit issued to Canadian Pacific Railway (“CP Rail”), pending a decision on the merits of their appeals of the Permit. The permit authorized the application of glyphosate and triclopyr on certain railway tracks on Vancouver Island. The applicants raised concerns about the adequacy of public notice regarding the permit application, and the possibility of harm to water quality, human health, food, and wildlife arising from herbicide use. CP Rail opposed the stay. The Deputy Administrator took no position on the stay.

The Panel applied the three step test from RJR-MacDonald v. Canada. Although there was evidence presented as to the safety and risks of the herbicides, the Panel found that, at this preliminary stage, it is not appropriate or even possible to assess the evidence in this case. However, the Panel found that the applicants’ claims, if true, raised serious issues to be tried about the validity of the permit. On the issue of irreparable harm, the Panel accepted that, if conditions in the permit to protect the environment and human health were inadequate as alleged by the applicants, there could be harm to water quality and human health that is neither reparable nor compensable. Finally, the Panel found that the balance of convenience favoured granting a stay. The potential for irreparable harm to the applicants outweighed the potential harm associated with vegetation on the tracks (e.g., fires or derailment) for the duration of a stay. The Panel also noted that CP Rail was free to use alternative methods to clear the tracks.

The application for a stay was granted.