Decision Date: August 30, 2010

Panel: Robert Wickett

Keywords:  Water Act – ss. 88, 92(9); order; culvert; stay application; preliminary decision

Canadian Pacific Railway Company (“CPR”) appealed an order issued by an Assistant Regional Water Manager (the “Manager”), in his capacity as an Engineer under the Water Act, Ministry of Environment (the “Ministry”). The order indicates that CPR re-aligned a stream without authority. The order requires CPR to prepare a work plan to return the stream channel and certain rail crossings to their original location, and remediate affected lands to a satisfactory condition. The order required CPR to submit the work plan to the Manager by July 16, 2010, and complete the work during the fisheries window of August through September 15, 2010.

As a preliminary matter, CPR applied to the Board for a stay of the order, pending a decision from the Board on the merits of the appeal. The Board heard the stay application on an expedited basis, because the merits of the appeal could not be decided before September 15, 2010.

The Manager consented to the stay application, but the Third Parties (other than the Attorney General of Canada, who made no submission) opposed the stay application. The Third Parties alleged that the diversion of the stream had caused damage to their property, and adversely affected their use and enjoyment of their property. CPR submitted that it had altered the stream based on directions issued by the Department of Fisheries and Oceans to address concerns about fish passage.

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 CPR had raised serious issues to be tried including questions of fact and credibility, which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that the appeal would likely be moot if a stay was denied, and this would constitute irreparable harm to CPR. The Board found that the Third Parties may suffer continuing harm to their interests if a stay was denied, but they could receive compensation. Further, the Board held that there was no evidence that maintaining the status quo would cause harm to the environment.

Regarding the third part of the test, the Board found that the balance of convenience favoured granting a stay, because it ensured that CPR would have a meaningful right of appeal.

Accordingly, the application for a stay was granted.