Decision Date: October 5, 2010

Panel: Alan Andison

Keywords: Water Act – s. 92(9); conditional water licence; residential power purpose; stay application; preliminary decision

Albion Samuel Tidler appealed a conditional water licence issued by an Assistant Regional Water Manager (the “Manager”), Ministry of Environment (the “Ministry”). The licence was issued to Sara de Rose and Tim Coertze, who property adjacent to Mr. Tidler’s property on Lasqueti Island. The licence authorizes the diversion of water from Holmes Creek between November 1 and April 30 each year for residential power purposes. The licence also authorizes certain works. In a cover letter to the licence, the Manager included a requirement that the licensees build a spillway by October 15, 2010. A hearing on the merits of the appeal was scheduled for October 26, 2010.

Mr. Tidler applied to the Board for a stay of the requirement to build a spillway, pending a decision from the Board on the merits of the appeal. The Manager and the Third Parties opposed the stay application.

In determining whether a stay ought to be granted, the Board applied the three-part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General). With respect to the first part of the test, the Board found that Mr. Tidler had raised serious issues to be tried which were not frivolous, vexatious or pure questions of law. In particular, he raised issues about the design and height of the spillway, and whether it would lead to flooding on his property and damage to a riparian area.

Regarding the second part of the test, the Board found that Mr. Tidler did not establish that denying a stay would cause his interests to suffer irreparable harm. The Board found that existing damage to trees and riparian areas due to previous flooding did not constitute irreparable harm, because it was not damage that would arise from the proposed spillway. The Board also found that the spillway would actually reduce the likelihood of any further flooding on Mr. Tidler’s property.

Regarding the third part of the test, the Board found that the balance of convenience favoured denying a stay. The Board held that, although Mr. Tidler would not suffer irreparable harm if a stay was denied and the spillway was constructed, he may suffer some lesser harm if flooding occurred on his property. The Board weighed this risk of harm against the potential benefits of the spillway. The Board held that the spillway’s main purpose appears to be the protection of a road and the natural environment from the risk of damage arising from seasonal high water levels, and secondarily, the reduction of the risk of flooding on Mr. Tidler’s property. Although Mr. Tidler submitted that the spillway’s height was inadequate to prevent flooding on his property, the Board found that it would reduce the risk of extreme flooding on his property. The Board found that, on balance, more reasons favoured denying a stay and allowing construction of the spillway to proceed, than granting a stay and preventing construction of the spillway, pending a decision on the appeal.

Accordingly, the application for a stay was denied.