Decision Date: September 29, 2011

Panel: Robert Wickett

Keywords:  Water Act – s. 92(9); stay; preliminary decision; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

Comet Investments Ltd., Inc. No. 69349 and P.G. Realty and Insurance Agency Ltd., Inc. No. 63919 (the “Applicants”) appealed two orders: an order issued by the Assistant Regional Water Manager and an order issued by the Regional Manager, Northern Region, Ministry of Forests, Lands and Natural Resource Operations.  The orders related to alleged unauthorized works in and about a creek, pond, and ditch on a parcel of land (“Lot A”) owned by the Applicants. The first order required the Applicants to cease any further works on Lot A that may cause or allow erosion, retain a qualified professional, and prepare a plan for remediating the alleged unauthorized works. The second order extended the dates for compliance with the first order.  

The Applicants appealed on the basis that the orders were made without jurisdiction because they do not pertain to a “stream”, and that the Assistant Regional Water Manager’s decision-making process was unfair.  The Applicants submitted that the creek named in the orders is not a “stream” as defined in the Water Act; rather, it is a man-made ditch that the Applicants constructed several years ago, in response to the City of Prince George authorizing developments that diverted storm water run-off to a pond on Lot A.  The Applicants submitted that the diverted storm water caused flooding on Lot A.

The Applicant applied for a stay of the orders, pending a decision from the Board on the merits of the appeals.

The Regional Manager and the Assistant Regional Water Manager opposed the stay applications. 

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General).  With respect to the first stage of the test, the Board found that the Applicants’ appeal raised serious issues to be decided, which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that denying a stay would result in financial harm to the Applicants, as a result of costs incurred in complying with the orders.  The Board also found that this harm would be irreparable in nature, as there was no clear mechanism by which the Applicants could recover the money expended in complying with the orders, if they are successful in the appeals.  

Turning to the third part of the test, the Board found that there was no evidence that granting a stay, and delaying the operation of the orders, would cause any material, irreparable harm to the environment, including fisheries values.  Weighing the potential harm to the Applicants’ interests if a stay was denied, against the potential harm to the environment if a stay was granted, the Board concluded that the balance of convenience favoured granting a stay of the orders.

Accordingly, the applications for a stay were granted.