Decision Date: April 16, 2013

Panel: Alan Andison

Keywords: Water Act – s. 92(9); preliminary decision; stay application; order

John Vlchek appealed an order issued to him by the Regional Water Manager (the “Regional Manager”), Northeast Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The order required Mr. Vlchek, doing business as Cariboo Water Wells Ltd., to take interim measures with respect to a water well he drilled on property owned by Hazel Collins.

Ms. Collins hired Mr. Vlchek to drill a domestic water well on her property located in Chetwynd, B.C. When Mr. Vlchek drilled the well, he encountered artesian conditions involving a high flow of pressurized ground water. Mr. Vlchek took steps to control the artesian flow, but water continued to flow from the well and across Ms. Collins’ and neighbouring properties for several months. The situation appeared to be stable until early March 2013, when a large sinkhole developed on Ms. Collins’ property. On inspection by the Ministry, the sink hole appeared to be caused by underground flow from the well, and the flow from the well appeared to be causing other problems or potential problems for nearby properties, infrastructure and streams.

The Regional Manager issued the order on March 28, 2013. The order required Mr. Vlchek to retain a qualified professional to prepare and submit a site remediation plan for the Regional Manager’s approval, and retain a qualified professional to supervise the carrying out of measures to stabilize the area around the well and install a ditch or drainage course to drain the flow of water from the well to a stream. The order required the work to be completed by April 17, 2013.

On April 8, 2013, Mr. Vlchek appealed the Regional Manager’s order, and requested a preliminary stay of the order pending a final decision from the Board on the merits of the appeal.

On April 9, 2013, the Regional Manager received a site remediation plan from Mr. Vlchek, along with Mr. Vlchek’s request that the plan be approved.

In his submission on the stay application, Mr. Vlchek advised that he had engaged contractors to carry out the remediation work, and which he expected to commence by April 15, 2013, in order to be completed by April 17, 2013.

The Regional Manager opposed the stay application. Ms. Collins provided no submissions on the stay application.

In determining whether the stay application 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 it was unclear why Mr. Vlchek was seeking a stay when he had already complied with the requirement to submit a remediation plan to the Regional Manager, and he intended to comply with the remaining requirements of the order by the specified deadline. The Board noted that the stay application may be moot, and that Mr. Vlchek may be conflating the interim measures required under the order with more permanent measures, which could be the subject of a future order if the Regional Manager requires Mr. Vlchek to take further steps. However, the Board also noted that Mr. Vlchek was still pursuing the stay application, and he was represented by legal counsel.

In any event, the Bound found that the appeal raised serious issues, including whether Mr. Vlchek should be held responsible for carrying out the interim steps required by the order, and what constitutes having an artesian flow “under control” for the purposes of section 77 of the Water Act. Also, some material facts were in dispute, such as whether Mr. Vlchek took appropriate steps to attempt to control the flow of water from the well. On its face, the appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. Consequently, the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found there was a likelihood of irreparable harm to Mr. Vlchek’s financial interests if a stay was denied. In particular, the Board found that he would incur costs to carry out the required interim measures. Mr. Vlchek estimated that the costs of complying with the order will be $60,000 to $100,000, which is significant, especially for a small business owner. Although those costs are quantifiable, it was uncertain whether Mr. Vlchek would be able to recover those costs if a stay was denied and he is ultimately successful in his appeal. There was no evidence as to whether Mr. Vlchek or his company had insurance that would cover such costs.

Turning to the third part of the test, the Board weighed the potential harm to Mr. Vlchek’s interests, if a stay was denied, against any potential harm to the interests of the Regional Manager or the Third Party if a stay was granted. The Board found that the balance of convenience favoured denying a stay. Although Mr. Vlchek’s financial interests would likely suffer irreparable harm if a stay was denied, there was evidence of the potential for further harm, some of which may be irreparable, to Ms. Collins’ property and the Regional Manager’s interests, if a stay was granted. Specifically, there was evidence that water from the well had already caused flooding, erosion, siltation, and the large sink hole, which appeared to be unstable. In addition, the flow from the well had caused flooding of a field on neighbouring property. Flood water on the field had partially covered BC Hydro poles, which created a risk of harm to the electrical line. Also, flood water on the field posed a risk of flooding a local road, and was flowing along a CN railway right-of-way, causing a risk of rail bed saturation. Additionally, the onset of Spring thaw, which was imminent, would add to the existing flow of water, and silty floodwater was at risk of entering a fish-bearing creek.

Accordingly, the stay application was denied.