Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal dismissed West High Yield (W.H.Y.) Resources Ltd.’s application for leave to appeal from an interlocutory injunction that restrains it from any construction or ground-breaking at the Record Ridge Mine site pending determination of Save Record Ridge Action Committee Society’s judicial review petition.

• The chambers judge applied the RJR-MacDonald three-part test, found SRR’s judicial review position “arguable” but “not particularly strong”, yet concluded there was a risk of irreparable harm if the mine became “substantially started” and therefore no longer an “eligible project” for discretionary review under s. 11 of the Environmental Assessment Act.

• The judge held that the balance of convenience favoured SRR because, without an injunction, the relief sought (review of the project under the EAA) might no longer be available, whereas WHY could still undertake preparatory work that did not significantly disturb the landscape, even though it would lose mining revenues during the injunction period.

• The chambers judge found that the time pressure behind the injunction application was largely attributable to WHY’s refusal to agree to earlier hearing dates for the petition, and the Court of Appeal treated this as a case-specific factual assessment not raising issues of broader significance to the practice.

• WHY’s fresh evidence about a new ore-sale contract with Galaxy Trade and Technology, LLC and additional post-permit expenditures (totalling about $1,000,000) was found not to be material to the leave decision because, even if accepted, it would not alter the injunction analysis or justify granting leave.

• The Court concluded that, although some proposed grounds of appeal were arguable, they would not advance the underlying judicial review, raised no issues of general importance, and might become moot given that the petition was set for hearing on 4 May 2026, so it was not in the interests of justice to grant leave.

Factual background of the Record Ridge Mine project

West High Yield (W.H.Y.) Resources Ltd. (“WHY”) is developing the Record Ridge Mine, located approximately seven kilometres southwest of Rossland, British Columbia. The project is described by WHY director Dr. Kamaleddine as an advanced-stage magnesium industrial quarry-style open-pit operation involving mining of magnesium-bearing rock, on-site crushing, and transportation of material off-site for further processing. The design includes an open pit mine, waste rock storage, and soil stockpiles, and the mined ore is to be transported offsite on large trucks.

The final project design provides for an annual production capacity of 63,500 tonnes of ore per year. This is below the 75,000-tonne annual production threshold under s. 9 of the Environmental Assessment Act, S.B.C. 2018, c. 51 (EAA) and the Reviewable Projects Regulation, B.C. Reg. 243/2019, at which a project becomes automatically reviewable. The Environmental Assessment Office (EAO) also declined to designate the mine for environmental assessment under s. 11(5) of the EAA.

The Record Ridge Mine has the support of the Osoyoos Indian Band. Several organizations oppose the mine, primarily on environmental grounds, including Save Record Ridge Action Committee Society (“SRR”) and the Sinixt Confederacy (“Sinixt”), which both participated in the litigation in the court below.

Regulatory decisions under the Environmental Assessment Act and Mines Act

On 13 August 2025, the EAO issued a Designation Review Report that concluded the Record Ridge Mine was not “substantially started” and was not prescribed as a “reviewable project” under the Reviewable Projects Regulation because its designated production capacity was under 75,000 tonnes of ore per year.

On 19 August 2025, the EAO decided not to designate the Record Ridge Mine project for environmental assessment under s. 11(5)–(6) of the EAA.

On 22 September 2025, SRR filed a petition in the Supreme Court of British Columbia seeking judicial review of the EAO’s decision. SRR challenges (i) the EAO’s finding that Record Ridge was an “eligible project” under s. 11(1) of the EAA, and (ii) the EAO’s discretionary decision not to designate the mine for environmental assessment under s. 11(5)–(6).

Separately, on 20 October 2025, WHY obtained a permit under the Mines Act, R.S.B.C. 1996, c. 293, to operate the Record Ridge Mine, with operations to commence on 1 April 2026.

Procedural history leading to the interlocutory injunction

Beginning in late September 2025, SRR tried to have its judicial review petition scheduled for hearing. The chambers judge later found that a principal obstacle to obtaining an early date was WHY’s consistent position that its counsel had no availability until August 2026.

On 27 November 2025, SRR notified WHY of its intention to seek a stay of the Mines Act permit, although it did not file its application until January 2026. On 13 January 2026, SRR filed a notice of application seeking either a stay of the Mines Act permit or an interlocutory injunction restraining WHY from commencing mining operations.

On 3 March 2026, SRR’s petition was formally scheduled for a four-day hearing in Nelson, commencing 17 August 2026, these being the first dates when WHY’s counsel was available.

On 9 and 10 March 2026, the chambers judge heard SRR’s application for an interlocutory injunction enjoining WHY from commencing construction at the Record Ridge Mine site until the Supreme Court determined the petition.

On 11 March 2026, the chambers judge granted an interlocutory injunction enjoining WHY from commencing construction or any other form of ground-breaking activity at the Record Ridge Mine site until SRR’s petition was decided. He also made additional orders intended to reduce or minimize prejudice to WHY, as described below.

Application of the RJR-MacDonald test by the chambers judge

The chambers judge applied the three-part test for interim injunctive relief from RJR-MacDonald Inc. v. Canada (Attorney General), namely whether there is a serious question to be tried, irreparable harm, and balance of convenience. He cited authority noting that the three elements are not “watertight compartments” and that the relative strength or weakness on one element can inform assessment of the others, with the overall question being whether it is in the interests of justice to grant an interlocutory injunction.

On the first branch, the judge found that SRR’s position on the judicial review was arguable but “not particularly strong.” He stated that SRR faced an “uphill challenge” in light of existing case law interpreting and applying the relevant provisions of the EAA.

On the second branch, the judge was satisfied that SRR would suffer irreparable harm without an injunction. He reasoned that, if WHY proceeded with the project before the petition could be decided, there was a risk that the project could cross the “substantially started” threshold in s. 11(1) of the EAA. If that occurred, it would no longer qualify as an “eligible project” subject to discretionary review under s. 11(5)–(6).

On the third branch, the balance of convenience, the judge noted that if no injunction issued, the ultimate relief SRR sought on its petition—review of the Record Ridge project under the EAA—might no longer be available. If an injunction was granted, WHY would not be able to proceed with the project until the petition was determined, leading to a substantial loss of mining revenues. However, WHY could still conduct preparatory work provided there was no significant disturbance of the landscape.

The judge characterized the circumstances as “unique” because, in his view, if SRR had not encountered difficulty in scheduling an early hearing, the petition could have been heard before the 1 April 2026 start date for WHY’s permit. He found that WHY’s refusal to agree to a hearing date before August 2026 was unreasonable and that to accept WHY’s position would be “tantamount to [the] Court endorsing unavailability as a reason to delay the otherwise timely hearing of a dispute.” He concluded that granting a time-limited injunction was “just and equitable” and that refusing it would “deny the petitioner access to justice.”

To lessen the burden of the injunction on WHY, the judge:

• ordered that SRR’s undertaking as to damages be replaced with an obligation to deposit $162,500 into trust; and

• rescheduled the petition hearing date to 5 May 2026, at an assize sitting of the Supreme Court in Rossland.

Appeal proceedings: leave to appeal and fresh evidence

On 12 March 2026, WHY applied to the Court of Appeal for leave to appeal from the interlocutory injunction order. On 24 March 2026, it filed an application to adduce fresh evidence for the leave application and any resulting appeal.

Between 24 March 2026 and 8 April 2026, various materials were filed, including some by SRR and Sinixt after the deadlines in the Court of Appeal Rules, B.C. Reg. 120/2022. At the outset of the hearing, the chambers judge in the Court of Appeal granted extensions of time, being satisfied that WHY was not substantially prejudiced by the late filings.

The fresh evidence consisted of two main categories:

• evidence that WHY had entered into a formal contract with Galaxy Trade and Technology, LLC (“Galaxy”) to purchase ore from the Record Ridge Mine; and

• evidence of additional costs incurred by WHY after the permit was granted, bringing its post-permit costs to about $1,000,000 to advance the mine towards construction.

The chambers judge in the Court of Appeal accepted that, even with due diligence, this evidence could not have been adduced below, since the Galaxy agreement was concluded on the last day of the injunction hearing and many of the additional costs were incurred after the injunction decision. He also accepted that the evidence was relevant to the balance of convenience and was prima facie reliable.

However, he found that the evidence did not meet the test of materiality for purposes of the leave application. Even assuming the Galaxy agreement and the increased post-permit costs, the evidence did not show that the chambers judge had committed any error in principle in his analysis of the injunction application, nor did it alter the balance of convenience to the point that the injunction outcome was manifestly unjust or warranted reconsideration on appeal. The fresh evidence also did not bear on the significance of the issues raised on appeal for the underlying petition or for the practice generally.

Accordingly, the Court of Appeal declined to admit the fresh evidence for the leave application, while noting that this did not determine its admissibility if an appeal were ever heard.

Standing of Sinixt and late-filed materials

WHY argued that Sinixt was not a proper respondent to the leave application and should not be heard in opposition. It submitted that Sinixt’s position in the court below aligned with SRR, that it should not have been permitted there to file anything other than a response indicating that it did not oppose the relief SRR sought, and that WHY had a pending motion to strike Sinixt as a party in the Supreme Court.

The Court of Appeal rejected this argument. Under Rule 6(1)(a) of the Court of Appeal Rules, a person is a respondent if they were a party below and their interests could be affected by the relief sought on appeal. Sinixt was a party to the proceedings when the interlocutory injunction was granted, and it opposed the Record Ridge Mine proceeding to operations. Because the injunction order restrained WHY from starting operations until the petition is decided, the Court held that Sinixt’s interests could be affected by any order overturning that injunction.

To address WHY’s concern about “piling on,” the Court directed that the available time for oral argument on the leave application be divided equally between WHY and the two respondents, SRR and Sinixt.

Legal framework for leave to appeal and fresh evidence

The Court confirmed that, because an interlocutory injunction is a “limited appeal order” under Rule 11(a)(v) of the Court of Appeal Rules, WHY required leave to appeal under s. 31 of the Court of Appeal Act, S.B.C. 2021, c. 6. It applied the established four criteria for leave to appeal:

• whether the points raised are of significance to the practice;

• whether they are of significance to the action;

• whether the proposed appeal is prima facie meritorious or frivolous; and

• whether the appeal will unduly hinder the progress of the proceedings,

with the overarching consideration being the interests of justice.

On fresh evidence, the Court referred to the Palmer test—diligence, relevance to a potentially decisive issue, credibility, and overall significance to the result—and noted prior authority that a chambers judge on a leave application considers fresh evidence only on a prima facie basis and that the Palmer criteria are applied less strictly in the interlocutory context.

Assessment of the proposed grounds of appeal

WHY advanced six grounds of appeal, alleging that the chambers judge erred by:

1. failing to treat SRR’s application as a “quia timet” injunction with special legal requirements;

2. treating the RJR-MacDonald factors as equally weighted, independent inquiries rather than interrelated considerations;

3. finding that SRR’s application could become “moot” if the injunction were not granted;

4. concluding, without evidentiary foundation, that the project would be “substantially started” before the petition was heard;

5. ignoring SRR’s delay in bringing the application and placing scheduling responsibility solely on WHY; and

6. moving the petition hearing to 5 May 2026 when no party had requested rescheduling from 17 August 2026.

The Court accepted that the first two grounds raised extricable questions of law but found the governing law settled in this context. It distinguished a case relied on by WHY concerning quia timet injunctions in relation to anticipated breaches of contract and noted the absence of authority applying such principles to injunctions pending judicial review of administrative decisions. In other cited cases involving environmental or resource-related injunctions pending judicial review, courts simply applied the RJR-MacDonald framework.

On the second ground, the Court acknowledged existing case law emphasizing that the three branches of the RJR-MacDonald test are interrelated. In this case, the chambers judge had cited authorities to that effect. WHY’s argument therefore reduced to a claim that, although the judge stated the law correctly, he failed to apply it. The Court characterized that as a case-specific argument that would not meaningfully advance the law.

The Court considered the remaining grounds to be highly fact-dependent. Grounds three and four involved both factual issues and the meaning of “eligible project” and “substantially started” in s. 11(1) of the EAA, but the mootness finding turned on whether there was a factual basis for concluding that WHY could have substantially started the project before the August hearing. The Court noted there was a substantial evidentiary record showing WHY’s intention to begin ground-breaking and commercial production as soon as possible after 1 April 2026, including a media interview in which one of WHY’s directors expressed an expectation that construction would begin in June.

Grounds five and six concerned the judge’s evaluation of the procedural history and scheduling, as well as how those factors fed into the balance of convenience. The chambers judge had found that other parties had been prepared to adjust their calendars for a timely hearing, while WHY unreasonably refused to be available earlier than August 2026. The Court stated that although WHY disagreed, it would be difficult to demonstrate that this assessment was palpably wrong.

WHY also raised an issue with the order requiring SRR to pay $162,500 into trust as security in lieu of an undertaking as to damages, arguing that this amount was only a fraction of its post-permit costs. The chambers judge had observed that SRR had “limited means” and was unlikely to be able to pay a “large damage award,” that an undertaking is only as good as the giver’s ability to pay, and that in light of WHY’s role in creating the need for an injunction through its scheduling position, this was the most appropriate and meaningful form of security. The Court treated this as a classic exercise of discretion.

Overall, the Court concluded that at least some grounds were arguable and that the merits threshold for leave was relatively low, so it would not refuse leave solely on a preliminary merits assessment.

Significance to the practice, the underlying action, and progress of the proceedings

On significance to the practice, the Court held that there was no current legal controversy or uncertainty about applying RJR-MacDonald to interlocutory injunctions in this regulatory and environmental context. The criteria from that case, and later decisions, were seen as flexible enough to address the competing interests involved.

On significance to the underlying action, the Court found that none of WHY’s grounds would advance the judicial review, which concerns the EAO’s decision under the EAA. Even if the injunction were overturned, it would have “no legal impact” on the merits of the petition, which by then had been set for hearing on 4 May 2026 and might be decided before any appeal of the injunction could be heard.

Regarding whether an appeal would hinder progress, the Court accepted that granting leave would not create any legal impediment to the petition proceeding on 4 May 2026. However, it agreed with SRR and Sinixt that litigating an interlocutory appeal could distract the parties from preparing for the petition hearing. On balance, this factor weighed somewhat against granting leave.

Interests of justice and outcome

In assessing the overarching interests of justice, the Court described the case as “unique.” It acknowledged WHY’s concern that the injunction might delay or cause loss of substantial mining revenues during the 2026 operating window under a Mines Act permit set to expire in two years. At the same time, it noted the chambers judge’s case-specific finding that the main impetus for the injunction application was the difficulty in obtaining a timely hearing date, which he attributed largely to WHY’s refusal to agree to a date before 17 August 2026.

The Court held that some proposed grounds of appeal had arguable merit but that their determination would not advance the underlying judicial review and that none raised issues of broader importance to the practice. It also identified reasons to question whether the appeal would become moot before it could be heard, given that the petition was set for hearing on 4 May 2026 and could be decided first. Additionally, the Court observed that if the judge hearing the petition concluded that the time needed to decide the matter might affect the balance of convenience, that change in circumstance could justify reconsideration of the injunction.

In the result, the Court of Appeal found that it was not in the interests of justice to grant leave to appeal. The application for leave to appeal was dismissed, and the fresh evidence application was adjourned generally.