Decision Date: January 31, 2003

Panel: Alan Andison

Keywords: Water Act: s. 40(7); stay application; RJR MacDonald

The Gander Creek Water Users’ Community (“GCWUC”) appealed an order issued by the Assistant Regional Water Manager (the “Assistant Manager”) requiring the GCWUC to design, construct, and install a division tank near the GCWUC point of diversion on Gander Creek.  The Appellant requested a stay of the order pending a decision on the merits of the appeal.

The Board found that the GCWUC’s Notice of Appeal failed to raise a serious issue, as required by the legal test for a stay application, because their grounds for appeal did not relate to the Assistant Manager’s order.  However, the Board found that the GCWUC’s submissions may raise a serious issue, namely whether there were errors or contradictory directions provided by the Water Management Branch/ Land and Water BC.

The Board further found that the Appellant did not establish that it would suffer irreparable harm if the stay was denied.

Furthermore, on the balance of convenience, the Board was not satisfied that the financial harm suffered by the Appellant would outweigh the potential harm to the interests and rights of downstream licensees if the stay was granted. The application for a stay was denied.