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1 No. T-1859-00
2 IN THE FEDERAL COURT OF CANADA
3 TRIAL DIVISION
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5 BETWEEN:
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7 TOM KINDERWATER, BOVAR WASTE MANAGEMENT INC.
8 AND CHEM-SECURITY (ALBERTA) LTD.
9 Applicants
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11 - and -
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13 DAVID ANDERSON, MINISTER OF THE ENVIRONMENT
14 and PETER BLADKALL, REGIONAL DIRECTOR,
15 ENVIRONMENT PROTECTION SERVICES, ENVIRONMENT CANADA
16 Defendants
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19 E X C E R P T
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24 Calgary, Alberta
25 October 31, 2000
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1 Excerpt of Proceedings taken at Trial at the Federal Court
2 of Canada, Third Floor, 635 - 8th Ave. S.W., Calgary,
3 Alberta
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5 October 31, 2000
6 The Honourable
Mr. Justice Teitelbaum Federal Court of Canada
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R. A. Neufeld, Esq. For the Applicant Bovar
8 & Chem-Security
9 B. O'Ferrall, Esq. For the Applicant
Tom Kinderwater
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K. Lambrecht, Esq. For the Respondents
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K. Morosse, CSR(A) Official Court Reporter
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14 THE COURT: Thank you. I'm prepared to
15 give you my decision right away.
16 It's trite law that an applicant who files an
17 application for stay must, in order to have a stay granted,
18 convince the Court that the applicant has an arguable case,
19 irreparable harm, and that the balance of convenience lies
20 in favour of the applicant. All three elements must be
21 shown to the Court in order for an application to stay to be
22 granted.
23 I'm satisfied that the application being made
24 is neither frivolous nor vexatious. I am satisfied from
25 having read the material and the Affidavits, unfortunately,
26 I didn't have a chance to read the entire
27 cross-examinations, but I am satisfied from having read the
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1 material, and from listening to the submissions, that the
2 applicants certainly have shown that they have an arguable
3 case and, therefore, they have fulfilled the first element
4 of the three that's required.
5 As I'm sure counsel for the applicants have
6 heard, my very, very serious concern is the issue of
7 irreparable harm, and notwithstanding the very good, if not
8 excellent, submission made by Mr. Neufeld with regard to his
9 client, Bovar, in discussing the issue of irreparable harm,
10 I am not convinced there is any irreparable harm. Let me
11 explain to you why I'm not convinced.
12 First of all, I can't see any irreparable
13 harm to Bovar when they say that if the Crown wants to go
14 and take the tests on their own, they can go right ahead and
15 do it. That immediately tells me there's no irreparable
16 harm because if Bovar has to do the tests, all it means is a
17 question of money. It's going to cost Bovar 'X' thousands
18 of dollars and they have been forced to do the test because
19 of "an invalid order". All Bovar has to do is to make a
20 claim against the respondent, and we can't say that the
21 respondent can't afford to pay whatever the damages may be,
22 so that immediately tells me that there is no irreparable
23 harm.
24 Then I have the evidence that it cost
25 approximately $3,000 to do the test, plus the costs of the
26 samples, and as I pointed out, the only evidence I have of
27 irreparable harm is that given to me in the Affidavit of
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1 Mr. Latonas. I have no other evidence.
2 As I pointed out when I was listening to the
3 submissions being made, I said, and I'm going to repeat what
4 I said, the applicants have advised the Province of Alberta
5 and the respondents that they have no objection to them
6 carrying out the sampling required.
7 And then Mr. Latonas states that the
8 applicant believes that what they are being asked to do is
9 really not required and is unnecessary. With all due
10 respect, what does that mean? So it's unnecessary, but in
11 the law pursuant to the direction, which is still there, it
12 states the applicants must do more tests. I have nothing
13 else to indicate, with regard to Bovar, that there is any
14 irreparable harm. There is just no other evidence before
15 me.
16 In that I have no evidence of irreparable
17 harm, I don't even have to discuss the issue of balance of
18 convenience, but I would point out that, in determining
19 balances of convenience, one not only looks at the
20 irreparable harm that the applicant may suffer, but then, in
21 determining balance of convenience, one looks at the
22 irreparable harm that may be caused to the respondent, and
23 that's how one determines the issue of balance of
24 convenience.
25 With regard to the case of Mr. Kinderwater, I
26 understand that Mr. Kinderwater, from what I've heard, is an
27 employee of Bovar, but he's not an ordinary employee, that's
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1 obvious. It's obvious from Exhibit D-1. Exhibit D-1, the
2 letter that was sent by Bovar Waste Management to
3 Environment Canada, the letter dated July the 6th, 2000,
4 Mr. Kinderwater signed the letter as Vice President of
5 Bovar, so he's an officer.
6 He's the plant manager. He has lots of, I'm
7 sure -- I don't like using the word "power," but he
8 certainly has a lot of influence, and he signs the letter
9 dated July the 6th that's sent to Environment Canada.
10 Again, with all due respect to the
11 submissions made by counsel for Mr. Kinderwater, I have
12 absolutely not a shred of evidence of irreparable harm. At
13 least I had some evidence of irreparable harm, if you can
14 call it that, on behalf of Bovar, but I haven't got a shred
15 of evidence that Mr. Kinderwater will suffer any kind of
16 irreparable harm.
17 I understand counsel standing up and saying,
18 well, he's going to be subject to criminal prosecution
19 according to the requirement by the Minister that was sent
20 out. Well, show me how with legal evidence, how he could be
21 affected by this. I understand that he might be affected,
22 but I can't be sitting here and speculate what his
23 irreparable harm is going to be.
24 Counsel are not allowed to testify. They're
25 only here to make submissions and to show me from the
26 evidence that irreparable harm will be caused to their
27 client, and this by Affidavit evidence.
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1 Having said that, therefore, I have to
2 reject, deny the application for stay. When I said this
3 before, that if I were to decide that the application should
4 be denied, I would listen to counsel as to what a reasonable
5 time would be - and it's not going to be until the judicial
6 review takes place - to what date I should allow Bovar to
7 complete the testing that's required, and since I am told
8 that the weather counts, I am going to allow the applicants
9 21 days to complete the required testing.
10 (BRIEF ADJOURNMENT).
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12 END OF EXCERPT
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1 Certificate of Transcript
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3 I, the undersigned, hereby certify that the foregoing pages
4 1 to 7 are a true and faithful excerpt of the proceedings
5 taken down by me in shorthand and transcribed from my
6 shorthand notes to the best of my skill and ability.
7 Dated at the City of Calgary, Province of Alberta, this 31st
8 day of October, A.D. 2000.
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15 K. Morosse, CSR(A)
16 Official Court Reporter
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18 CAT - Printed October 31, 2000
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