Decision Date: October 10, 2008

Panel: Alan Andison

Keywords:  adjournment; preliminary application

Ann Bayles and Glen Perkins appealed a decision of the Assistant Regional Water Manager, Ministry of Environment, to authorize the removal of a diversion structure located at the junction of Piercy and Happy Creeks.

The Appellants applied to the Board for an adjournment of the appeal hearing scheduled to convene on October 28, 2008.  The Appellants sought an adjournment to a date in mid-March 2009, on the basis that they had insufficient time to prepare for the hearing.  They submitted that this was due to a delay in the disclosure of documents they had requested from the Ministry of Environment, and because they would be busy until late December with harvesting and preparation of their crops.

The Third Party, Ms. Tobacca objected to the application for an adjournment.  She submitted that adjourning the hearing until spring 2009 would put her property at risk of flooding.  Ms. Tobacca alleged that the Appellants caused flooding on her property in early 2008 by trespassing on her property and interfering with the flow of Happy Creek.  However, the Appellants submitted that the flooding was caused by Ms. Tobacca’s actions or omissions.

Given the conflicting information regarding the cause(s) of flooding on Ms. Tobacca’s property, the Board determined that it would be improper to make any findings about the alleged flooding or its cause(s) in this preliminary decision.  In any case, the Board noted that the Respondent’s decision indicated that the Ministry of Environment was prepared to investigate any future occurrence of flooding on Ms. Tobacca’s property if it persists.  The Board further noted that, should the Ministry determine that an obstruction was causing flooding the Respondent has authority under the Water Act to address the problem.

The Board found that the Appellants required an adjournment in order to properly prepare for the hearing, so that they may have a fair opportunity to present their case.  The Board was satisfied that the need for an adjournment did not arise out of the intentional actions or the neglect of the Appellants.  Rather, it arose due to factors that were mainly outside of their control.  The Board also found that an adjournment would not prejudice Ms. Tobacca’s ability to present her case, and adjourning the hearing until early 2009 would not needlessly impede or delay the conduct of the hearing.  However, in order to reduce the length of time the matter is outstanding, and minimize any risk of harm to the environment and the parties that may or may not be caused by the Respondent’s decision, the Board advised that it would endeavour to hold the hearing in early 2009.

Accordingly, the application for an adjournment was granted.