Date of Hearing - April 23, 1998
Date of Decision - May 14, 1998
IN THE MATTER OFSections 84, 86 and 89 of the Environmental Protection and Enhancement Act (S.A. 1992, ch. E-13.3 as amended);
IN THE MATTER OF an appeal and request for Stay filed by Mr. Richard Stelter, with respect to the Approval No. 1069-01-00 issued to GMB Property Rentals Ltd. by the Director of Air and Water Approvals Division, Alberta Environmental Protection.
Cite as: Stelter v. Director of Air and Water Approvals Division, Alberta Environmental Protection Stay decision re: GMB Property Rentals Ltd.
Dr. Steve E. Hrudey, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck
Appellant: Mr. Richard Stelter represented by Ms. Karin Buss, counsel, Ackroyd, Piasta, Roth & Day
Other Parties: Ms. Maureen Harquail, Environmental Law Section, Alberta Justice, counsel for the Director of Air and Water Approvals Division, Alberta Environmental Protection; and Mr. Larry Williams, Alberta Environmental Protection
Mr. Garry Bogart of GMB Property Rentals Ltd. represented by Mr. Andrew Hudson, counsel, Emery Jamieson.
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THE MEDIATION MEETING
 On December 4, 1997, Mr. Richard Stelter, (the Appellant) filed a Notice of Appeal with the Environmental Appeal Board (the Board) with respect to Approval No. 1069-01-00 (the Approval) issued to GMB Property Rentals Ltd. (GMB) by Mr. David Spink, (the Director) Air and Water Approvals Division, Alberta Environmental Protection on November 21, 1997. This Approval, effective until November 1, 2007, is for the operation of a Class I wastewater treatment plant (wastewater stabilization ponds) in the Edson area.
 The Board wrote to the Appellant on December 4, 1997, acknowledging receipt of the appeal and by copy of that letter requested all related correspondence, documents and materials from the Department of Environmental Protection (the Department). On that same date the Board wrote to Mr. Garry Bogart of GMB Property Rentals Ltd. (the Approval Holder) advising him that an appeal had been filed by Mr. Stelter and providing him with a copy of the appeal.
 All requested correspondence was received from the Department on December 17, 1997, and a copy was forwarded to the Appellant and the Approval Holder. In the Board's letter of December 19, 1997, addressed to Mr. Stelter, the Board requested the Appellant provide further information regarding preliminary matters relating to his appeal. On December 19, 1997, the Board also requested that the parties advise as to whether or not they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation. Upon review of the comments received, the Board decided to hold a mediation meeting on February 9, 1998.
THE MEDIATION MEETING
 A mediation meeting was held on February 9, 1998, in Edson, Alberta. The facilitator from the Board was Dr. Anne Naeth.
 According to the Board's standard practice, the Board called the mediation in an attempt to mediate or to facilitate the resolution of the appeal or, failing that, to make arrangements for the oral hearing. The Board invited representatives from each party to participate.
 The Board's notice of mediation and public hearing advertisement(1) gave notice to other potential parties to make representations before the Board by February 3, 1998.
 In due course, the Board received an intervenor request from Mr. Jim Toner on February 3, 1998. The Board offered the parties the opportunity to comment on the possible involvement of Mr. Toner and after careful consideration of those comments, the Board decided to deny Mr. Toner's request.(2)
 No resolution was reached at the mediation meeting and a merits hearing was scheduled for April 23, 1998.
 On April 23, 1998, the hearing took place at the Board's office in Edmonton, Alberta. The following facts were largely agreed upon by the parties before the hearing and were elaborated in further detail during the hearing:
- GMB Property Rentals Ltd. owns and operates a mobile home park ("Park") east of Edson, Alberta. GMB purchased the Park in February, 1993.
- After purchasing the Park, GMB installed a second lagoon designed to store wastewater from the first lagoon for a period of time prior to release.
- On August 1, 1997, GMB applied for a new Approval from the Department for operation of its stabilization ponds including discharging effluent from the second lagoon into an unnamed creek which flowed through a natural bed and then through a trench dug by the former owners of the Appellant's land and ultimately to the McLeod River. The unnamed creek is an intermittent creek which flows during spring thaw and periods of rainfall.
- By letter dated November 4, 1997, the Appellant issued a statement of concern to the Department regarding the Approval that GMB was seeking.
- The Department reviewed the concerns set out in the Appellant's letter of November 4, 1997, and granted the Approval on November 21, 1997 as Approval No. 1069-01-00. This Approval allows GMB, from the second lagoon: "commencing January 1, 1998, a maximum once per year discharge between May 15 and July 15 in conjunction with spring runoff to an unnamed creek and ultimately into the McLeod River."
- The Approval also allowed GMB to make a one time discharge from the second lagoon through the unnamed creek to the McLeod River. On November 26 and 27, 1997, GMB discharged effluent into the McLeod River via the unnamed creek and the drainage channel across the Appellant's property.
- On December 4, 1997, the Environmental Appeal Board received an appeal from Mr. Richard G. Stelter with respect to the Approval.
 At the conclusion of the hearing, the Appellant applied pursuant to section 89 of the Environmental Protection and Enhancement Act, for a Stay of the decision of the Director.
 Prior to the Board making its decision with regard to the Stay request, it must first determine the appropriate tests to be used. In Przybylski vs. the Director,(3) the parties proposed and the Board agreed to the following test that should apply when determining whether a Stay should be provided:
(a) That upon a preliminary assessment of the merits of the Appellant's case, there is a serious question to be tried;
(b) That the Appellant would suffer irreparable harm if the Stay is refused; and,
(c) That the Appellant would suffer greater harm from the refusal of a Stay pending a decision of the Board on the appeal than the Respondent would suffer from the granting of a Stay.
(d) That the overall public interest warrants a Stay.(4)
 A "serious question to be tried" suggests that it is a question that is not frivolous or vexatious. It requires the Appellant to show that there is a potential for success on the appeal.(5) This is the first part of the test.
 "Irreparable harm" the second part of the test, refers to the nature of the harm, and not its magnitude. Harm is irreparable if it cannot be adequately compensated in damages.(6)
 Finally, all else being equal, the "balance of convenience" must then be addressed. Obviously, the factors to be considered in assessing the "balance of convenience" depends on the facts of each case.(7)
 The Board agrees that these same three tests can apply with this appeal. On the first point, the Board finds there is clearly a "serious question to be tried" and that this appeal is neither frivolous or vexatious. Regarding the second part of the test, the Board finds that the harm likely to be experienced by the Appellant if the Approval is not Stayed prior to the issuance of the Report and Recommendations is not of major magnitude -- but it is certainly not speculative and also may not be fully amenable to compensation in damages. The potential damages alleged include possible toxic effects on fish in the creek across the Appellant's land, a valid public interest concern which was also raised by the Department. The potential harm to the Approval Holder of granting the Stay would be negligible because it need not affect his ability to use the Approval conditions for discharge before July 15. Finally, even if the harm of granting a Stay were evenly balanced, the Board finds that "the balance of convenience" test favours the Appellant. The Approval calls for a once per year discharge allowed between May 15 and July 15. Given that the Board will follow its normal practice of issuing its Report and Recommendations to the Minister within 30 days of the appeal, i.e. by May 23, a final decision on the status of the Approval will be available well before the allowable window for a discharge has closed. Thus these factors support issuing a Stay of limited duration; there is a potential for health concerns as noted by the Appellant, and potentially no harm to the Respondent, if the Board's decision is processed in time.
 Therefore, pursuant to section 89 of the Act, a Stay is granted -- with a couple of conditions. First, the Board grants it because the proper discharge of treated effluent to avoid adverse environmental impact is a public interest issue, not simply a dispute between two private individuals. Second, the Stay is only temporary; on the one hand, if the Board agrees with the Appellant on the merits, and the Minister agrees with the Board, then the Stay becomes moot on the day the Minister signs the decision. Conversely, if the Board agrees to confirm the decision on the merits, the Stay then loses its effect on the day the Minister makes his decision.
 This decision is not a decision on the merits. We have not reached that stage yet.
Dated May 14, 1998, at Edmonton, Alberta.
Dr. Steve E. Hrudey, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck
1. Placed in the Edmonton Sun on January 27, 1998.
2. Environmental Appeal Board letter dated February 24, 1998, to Mr. Jim Toner.
3. Przybylski v. Director of Air and Water Approvals Division, Alberta Environmental Protection (April 1, 1997), No. 96-070.
4. This fourth criterion was not directly advanced by the parties in the Przybylski case, but the Board finds that the public interest must support a Stay.
5. RJR-MacDonald, supra, at 401, and Deloitte, supra, at 67-68. RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 at 400 (S.C.C.), citing Re Attorney-General of Manitoba and Metropolitan Stores (MTS) Ltd. et al. (1987), 38 D.L.R. (4th) 331 (S.C.C.). RJR-MacDonald, supra, was relied upon in Deloitte Haskins & Sells v. Coopers & Lybrand Inc. (1996), 37 Alta. L.R. (3d) 64 (C.A.).
6. Deloitte, supra, at 69.
7. RJR-MacDonald, supra, at 406-407.