Decision Date: May 5, 2004

Panel: Cindy Derkaz

Keywords: Water Act – ss. 12; Environment Management Act s. 11; water licence, application for costs

The Cook’s Ferry Indian Band (the “Band”) was a third party in the appeal of John Zahradnik against the decision of an Assistant Regional Water Manager (the “Regional Manager”) to deny Mr. Zahradnik an irrigation licence.  The Board upheld the Regional Manager’s decision and dismissed the appeal (see: Zahradnik v. Assistant Regional Manager (Appeal No. 2003-WAT-009(a), February 27, 2004).  The Band applied to the Board for costs against Mr. Zahradnik.
The Band submitted that the Board should exercise its discretion to award the Band all or a portion of its costs on the basis that a significant amount of Mr. Zahradnik’s appeal was frivolous or vexatious and that Mr. Zahradnik unnecessarily delayed the proceedings.  The Band further submitted that Mr. Zahradnik’s raising of the possibility of cancelling the Band’s own water licence was a vexatious tactic that caused stress to the Band’s members.

The Board found that the delays attributable to Mr. Zahradnik were not so unreasonable as to warrant an award of costs in favour of the Band.  The Board also found that the Band had not provided sufficient evidence or legal argument that there should be an award of costs to censure Mr. Zahradnik for allegations contained in his submission.

The Board found that Mr. Zahradnik’s appeal raised a serious justifiable issue, had a reasonable prospect of success and was not brought maliciously or with the intent to harass or annoy.  The Board was concerned about allegations Mr. Zahradnik made about the Band and about public officials and the discharge of their duties under the Water Act.  The Board noted that Mr. Zahradnik did not substantively pursue these allegations and found that, on the whole, Mr. Zahradnik’s conduct did not warrant an award of costs against him.

The Board dismissed the application for costs.