Date: 20091221
Docket: T-1823-09
Citation: 2009
FC 1297
Ottawa, Ontario, December 21, 2009
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
LENNARD
LEVINE
Applicant
and
THE MINISTER OF INDUSTRY 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 Victoria
Harbour, Kings County, Nova Scotia. NSC312 is one of six towers that
together will provide high-speed internet access to the county pursuant to a Nova Scotia provincial government initiative to
extend internet access to rural parts of the province. Construction of the
tower has now been completed, however, it has not been “turned on”. It is
anticipated that it will be in operation by the end of December 2009.
[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
Victoria Harbour, Kings
County, Nova Scotia. It is
adjacent to the land on which NSC312 is located. Since 1984, the Applicant has
grown organic garlic on his land. The majority of his production is sold as
seed, a quarter of his production is held for reseeding the following year, and
the balance is sold for consumption. The Applicant states that over the years
by careful selection of the best seed and by using the best organic farming
practices, his product and the reputation of his product have developed to the
point where he is known as being “the only reliable long term purveyor of high
quality, local, organic garlic seed” in Atlantic Canada. In 1990, the Organic
Crop Improvement Association granted the Applicant’s garlic operation organic
certification. The Applicant states that he has not kept up his formal
certification as it is no longer of benefit to him since his garlic has become
recognized as an organic “pure” product. The Applicant’s garlic growing
operation is his only source of income.
[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 Canada in Safety Code 6: Guideline limits of Human Exposure to
Radiofrequency Electromagnetic Fields in the Frequency Range from 3KHz to 300 GHz. According to the calculations made in
accordance with Safety Code 6, the radio frequency “exposure” measured from the
tower to the Applicant’s home is 782,518 times lower than the safe limit for
humans established by the code. At the base of the tower, the exposure will be
60,000 times lower than the limit in Safety Code 6. As the Applicant
has not adduced any evidence regarding radiation levels nor has he tendered any
evidence to contradict the safety calculations, there is no basis upon which to
find that there will be radiation damage to the crops and the land.
[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.
“Dolores
M. Hansen”
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