Decision Date: September 13, 1999

Panel: Judith Lee

Keywords: Water Act, s. 40(7); order; flooding; excavation; channel; stay application.

This decision concerns a stay application by Ms. Daigle, who had filed an appeal against a July 6, 1999 Order of the Water Manager requiring that she excavate a channel to drain water from a meadow area on an adjacent property. The Order provided that the channel be constructed by September 15, 1999. Ms. Daigle requested a stay of the Order until such time as she could afford to put in a deeper well or secure a water licence on a nearby stream. Judy and David Oliver, the adjacent property owners who sought to have the meadow area drained, opposed a stay of the Order.

The issue in this application was whether the Board should exercise its discretion to stay the execution of the Order pending the Board’s decision on the merits of the appeal. The Board applied the three-step test from RJR-MacDonald v. Canada (Attorney General) (1994) to determine whether a stay should be granted.

The Board found that the parties raised issues concerning potential harm to the property of both parties and that therefore there were serious issues to be tried. The Board also found that Ms. Daigle could suffer irreparable harm if the stay was not granted. Finally, the Board found that the balance of convenience favoured the granting of a stay of the Order. The Board was not satisfied that any additional harm to the Oliver’s interests that could be incurred until the appeal was decided would outweigh the harm to Ms. Daigle’s interests if a stay were denied. The application for a stay of the Order was granted.