Decision Date: November 19, 1999

Panel: Toby Vigod

Keywords: Jurisdiction; submissions; failure to respond

These were appeals filed against two separate orders issued by an engineer under the Water Act. One order was issued to Mr. Helfrick; the other was issued to Mr. Ross. Both orders were issued to address “the unauthorized removal and clearing of foreshore rocks” on the Crown foreshore of Shuswap Lake fronting two crown lease blocks where the appellants were tenants. The appeals were held together.

The appellants argued that the orders should be cancelled because the respondent engineer did not have jurisdiction under the Water Act to make the orders. They submitted that the engineer made the orders to protect fish habitat, a matter under the jurisdiction of the federal Fisheries Act.

In the ensuing written submissions process, the respondent engineer failed to respond to the Appellants’ submissions in accordance with the schedule set out by the Board. He subsequently advised the Board that he was unable to respond due to workload relating to regional flood preparations and other matters. After granting two extensions, the Board notified the respondent engineer that if it did not receive his response by a set date, it would cancel the orders as requested by the appellants. The respondent engineer then advised that he had not been able to devote any time to the appeals and that he would be closing his file on the appeals.

The Panel found that, without the benefit of the respondent engineer’s submissions, the case before the Board consisted of the orders themselves, the arguments and information provided by the appellants, and the respondent’s statement that other mitigative measures had been considered to address the situation. Based on the information available, the Panel found that the orders should be cancelled. However, the Panel made no finding on the jurisdictional issue, noting that this was an important legal question which the Board was not prepared to decide without the benefit of full argument by all interested parties. The appeals were allowed.