SITUATION
A forestry company has permits to harvest timber in an area by a watershed, which provides 90% of the drinking water for local residents. The local health board orders the company to stop logging near the watershed. It believes that logging in those areas poses a health hazard to the drinking water because the old growth trees protect the watershed and will take generations to grow back if they’re cut down. But the company has invested a lot of time and money to get permits to log in this area. And it believes that the health board’s order effectively prevents it from doing any logging near the watershed at all. So the company asks a court to “stay”—that is, suspend the enforcement of—the order until its lawsuit to get the order overturned is decided.
QUESTION
To get the order stayed, the company must prove all of the following EXCEPT:
A. There’s a serious issue to be tried.
B. It will suffer irreparable harm if the stay isn’t granted.
C. The board doesn’t have the authority to issue the order.
D. The balance of convenience favours staying the order.
ANSWER
C. The company doesn’t have to prove that the board exceeded its authority when it issued the order.
EXPLANATION
This scenario is based on a case from BC. In ruling on that case, the court explained that to get an order stayed while it’s being legally challenged, an applicant must demonstrate that:
- There was a serious issue to be tried;
- The applicant would suffer irreparable harm if the stay wasn’t granted; and
- The balance of convenience favours granting the stay.
The court ruled that, in this case, there clearly were serious issues to be decided. It also acknowledged that the company would suffer irreparable harm in the form of substantial lost profits if it couldn’t engage in the barred logging activities. But staying the order would cause the watershed to lose the old growth trees that protect it and that protection would be gone for generations until the trees grew back. Having weighed the parties’ interests and found them evenly balanced, the court concluded that the status quo should be maintained and thus the order should remain in place. However, it did stay the order on certain limited logging activities.
WHY WRONG ANSWERS ARE WRONG
A is wrong because the company is required to show that there’s a serious issue to be resolved in its legal challenge of the order. In fact, there are several serious issues to be decided here. For example, there’s a conflict between the health board’s order and the company’s permits. Also, the health board may not have had the authority to issue the order under these circumstances. So although the company isn’t required to prove that the health board exceeded its authority, such a challenge would raise a serious issue and thus satisfy this requirement.
B is wrong because the company is required to show that it would suffer irreparable harm if the order isn’t stayed. One way the company could do so is by showing that it will lose a lot of money if it isn’t allowed to harvest timber in the area near the watershed. For example, the company could show the value of the timber to be logged and thus the profits it would lose if it was barred from logging.
D is wrong because the company does have to show that the balance of convenience favours staying the order. A court will consider the following factors in deciding the balance of convenience:
- Whether one party will suffer irreparable harm;
- The status quo;
- The public interest; and
- The strength of the applicant’s case.
Here, the health board could argue that it will suffer irreparable harm in the form of lost old growth trees that protect the source of its drinking water. And the preservation of healthy drinking water is clearly in the public interest. But the company may also have a strong case. The court will have to balance the company’s interests against the health board’s interest. And if the parties’ interests are evenly balanced, then the status quo will be maintained.
SHOW YOUR LAWYER
Western Forest Products Inc. v. Sunshine Coast Regional District, [2007] BCSC 1283 (CanLII), Aug. 24, 2007
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