Decision Date: April 27, 2010

Panel: Alan Andison

Keywords:  Water Act – s. 92(9); water licence; authorized works; stay application; preliminary decision

Wendy Coons and Lee Cornelius appealed three separate conditional water licences (“CWLs”) issued by the Assistant Regional Water Manager (the “Assistant Manager”), Ministry of Environment (the “Ministry”). CWL 124257 was issued to Glen E. Franz and Donna L. Thompson; CWL 124401 was issued to Melvin A. and Dorothy Hobbs, and CWL 124002 was issued to the Appellants. All three licences authorized the diversion of water from either Smifrei Spring or Smifrei Brook. Smifrei Spring is located on property adjacent to the Appellants’ property.

As a preliminary matter, the Appellants applied to the Board for a stay of the works authorized under CWL 124257 for irrigation purposes, pending a decision from the Board on the merits of the appeals. CWL 124257 authorizes the diversion of water from Smifrei Spring for the purposes of irrigation and land improvement (drainage). The licence also authorizes the construction of certain works, including a ditch, pump, and irrigation pipe, by December 31, 2013. The Appellants requested a stay on the basis that the irrigation works had not been completed, and if the works were completed and the water was used for irrigation before the appeal was heard, it would cause reduced water flow to their property.

The Board offered the Assistant Manager and the Third Parties an opportunity to make written submissions on the stay application, but none of them parties did so.

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 stage of the test, the Board found that the Appellants had raised serious issues to be tried which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that the Appellants had established that their interests would suffer irreparable harm pending the outcome of the appeal, unless a stay was granted. In particular, the Board found that the completion of the works and utilization of the water under CWL 124257 for irrigation purposes would reduce the flow of water to the Appellants’ property, causing a pond and wetland to dry out, and causing reduced water flow to a forested area. The Board found that the adverse impacts of the reduced water flow may not be reversible, and constituted irreparable harm based on the principles set out in RJR-MacDonald Inc.

Regarding the third part of the test, the Board found that granting a stay would cause little or no harm to the interests of the holders of CWL 124257, whereas denying a stay would cause irreparable harm to the Appellants’ interests.  The evidence showed that the holders of CWL 124257 had completed a ditch for land improvement (drainage) purposes, but they seemed to have no imminent intent to complete the rest of the works and use the water for irrigation purposes. In addition, the Board noted that the holders of CWL 124257 held another water licence which allows irrigation of a garden area, and a stay would simply preclude them from constructing additional works that could reduce the flow of water to the Appellants’ land.

Accordingly, the application for a stay was granted.