Federal Court
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Cour fédérale
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PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
and
BRAGG COMMUNICATIONS INCORPORATED
doing business under the business name, EASTLINK
Respondents
REASONS FOR ORDER AND ORDER
[1] On October 15, 2009, the Minister of Industry approved the construction and operation of a broadband wireless internet tower (NSC312) at
[2] On November 4, 2009, the Applicant filed an application for judicial review of the October 15, 2009 decision seeking declaratory relief, an order setting aside the decision and other relief. The Applicant now seeks a stay of the decision until the judicial review is determined.
[3] It is well established that on a motion for a stay an applicant must satisfy the Court that there is a serious issue to be tried; the applicant will suffer irreparable harm if the relief sought is not granted; and the balance of convenience weighs in favour of granting the relief sought (RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. As the determinative issue centres on irreparable harm, only the facts relevant to this issue are set out below.
[4] The Applicant owns 20 acres of land in
[5] The Applicant states that the radiation of his crops, his seeds for replanting and his land will preclude him from marketing his product as organic and natural. He also states that in the natural foods community the exposure of his product and land to radiation from a telecommunications tower will be regarded as a contamination of his product undermining the integrity of his product and will preclude him from marketing his product as organic and natural. He maintains that his customers will not buy product subject to contamination from a telecommunications tower.
[6] The Applicant claims that he will be unable to overcome the stigmatization due to the exposure of his product and land to the radiation. He maintains that this will result in the same type of harm that cannot be quantified in monetary terms as identified in RJR-MacDonald, at paragraph 59. That is, he will suffer permanent market loss, irrevocable damage to his business reputation and, ultimately, he may be forced out of business.
[7] The onus is on the Applicant to prove on a balance of probabilities that irreparable harm will occur if the stay is not granted. Further, the alleged harm may not be hypothetical or speculative: International Longshore and Warehouse Union, Canada v. Attorney General of Canada, 2008 FCA 3, at paragraph 25.
[8] Turing first to the assertion of radiation damage to the Applicant’s crops and land, as part of the approval process, Eastlink had to meet the standards established by Health
[9] As to the Applicant’s assertion that he will not be able to market his product as “organic”, in response to this concern, Eastlink contacted a Standards Specialist with the Canadian General Standards Board (CGSB). This Board is a Standards Development Organization within the National Standards System of Canada. The Board’s role, through the use of a committee comprised of experts representing users, producers and general interest groups, is to manage the development of consensus standards. The committee is responsible for the technical details of the standard. The Standards Specialist stated that the chair of the CGSB Committee on Organic Agriculture confirmed that there was nothing in the standards in relation to “hertzian wave contamination”.
[10] The Applicant takes the position that it is irrelevant whether a certification body would certify his product as “organic” notwithstanding the tower. As noted above, his assertion of irreparable harm relates to the consequences flowing from the stigma that will attach to his product and his land due to the proximity to the tower.
[11] The Applicant did not submit any evidence from his customers or others in the natural foods community as to how they would regard the Applicant’s product should the tower become operational. Instead, he maintains that he is in the best position to know the concerns of his customer base and the probable effect of the proximity of the tower on the integrity of his product and on his business reputation. While I do not doubt the sincerity of the Applicant’s belief, his belief or opinion as to the perception of others is speculative in nature. In the absence of other evidence, the Applicant has failed to prove on a balance of probabilities that irreparable harm will occur if the stay is not granted.
[12] Accordingly, the motion will be dismissed with the matter of costs reserved for the application judge.
ORDER
THIS COURT ORDERS that: the motion is dismissed with costs reserved to the application judge.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1823-09
STYLE OF CAUSE: LENNARD LEVINE v.
THE MINISTER OF INDUSTRY and
BRAGG COMMUNICATIONS INCORPORATED
doing business under the business name, EASTLINK
PLACE OF HEARING:
DATE OF HEARING: December 14, 2009
APPEARANCES:
Mr. Blair Mitchell
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Mr. Reinhold Endres
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SOLICITORS OF RECORD:
Mitchell & Ferguson, Associates
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John H. Sims, Q.C.
Deputy Attorney General of
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