Lavoie v. Canada ( Minister of the Environment )
T-1586-98
Hugessen J.
25/8/98
7 pp.
Application for interim relief in context of application for judicial review attacking decision to issue permit under Fisheries Act in connection with project for construction of dam, related hydro facilities on Kagiano River north of Lake Superior-Applicant alleging construction of project going to cause irreparable damage to fish, fish habitat-(1) Applicant's case deserving to be heard by Court-(2) Applicant alleging fish, fish habitat being damaged, destroyed by construction; construction will result in loss of unspoiled wilderness area-Evidence permit granted by Minister containing serious conditions requiring mitigation of damage to fish, and evidence such mitigation provisions in permit will have effect of restoring, even possibly improving fish habitat-Respondent Kagiano alleging will suffer serious economic harm in event interim relief granted-Submitting as applicant not providing undertaking with respect to damages, economic harm should be considered under heading of irreparable harm-Also alleging possible or even likely environmental harm will result if stay ordered-Mitigation measures by their nature temporary and time sensitive and if project construction now stopped, likely would become not only ineffective for original purpose but might independently result in further serious environmental harm downstream-(3) Balance of convenience favouring respondents-Applicant's failure to give undertaking in damages considered-Applicant not obliged to give undertaking in damages; Court having power, in its discretion, to excuse him from doing so-But economic harm can be excluded from consideration of irreparable harm only if undertaking in damages in place-Unjust to disregard fact respondent, upon application for interim relief, might suffer serious, indeed fatal, economic harm-That consideration particularly significant herein-Corporate respondent not mint of money, and First Nation dependent to large extent upon development of river-Application for interim relief denied.