Decision Date: August 23, 2013

Panel: Alan Andison

Keywords: Water Act – ss. 92(1), 92(4); preliminary decision; jurisdiction; notice; appeal period; order

Six appeals were filed against an order issued by the Deputy Comptroller of Water Rights (the “Comptroller”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The order, which was issued to Catalyst Paper Corporation (“Catalyst”), revised the requirements governing the operation of storage works on Cowichan Lake that are regulated under a water licence held by Catalyst. Catalyst operates a weir on a dam that regulates the flow of water from Cowichan Lake into the Cowichan River. Notice of the order was sent to Catalyst by email on May 30, 2013. Notice of the order was also sent to numerous persons, including owners of waterfront property on Cowichan Lake, who had previously provided objections to the Comptroller regarding the proposal. The “objectors” were notified of the order in letters dated June 4, 2013, which were sent by registered mail.

Shortly after the Board received the appeals, Catalyst made a preliminary application requesting that four of the appeals be dismissed for lack of jurisdiction, on the basis that those appeals were filed after the expiry of the 30-day appeal period established in section 92(4) of the Water Act. In particular, Catalyst submitted that subsection 92(4)(a) of the Water Act states that the time limit for filing an appeal is “30 days after notice of the order being appealed is given… to the person subject to the order”. Catalyst argued that it is the “person subject to the order,” and the 30-day appeal period started when it received notice of the order on May 30, 2013. Catalyst submitted, therefore, that the appeals filed after July 2, 2013, by Greg Whynacht, Ian R. Poyntz, Catherine Willows Woodrow, and Michael Dix (collectively referred to as the “Appellants”) were too late, and the Board has no jurisdiction to extend the appeal period. However, Catalyst accepted that two appeals filed by other individuals were received by the Board within the 30-day appeal period.

The Board invited all parties to provide written submissions on the preliminary issue of jurisdiction.

The Board noted that, although subsection 92(4)(b) of the Water Act states that notice of an order may also be given “in accordance with the regulations,” no regulations have been made with regard to giving notice of an order. Therefore, the Appellants must meet the 30-day appeal period in subsection 92(4)(a). The Board also noted that section 92(1) of the Water Act provides three groups of persons with standing to appeal an order issued under the Water Act: (a) the person who is subject to the order; (b) an owner whose land is or is likely to be physically affected by the order; or (c) a licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order. The four Appellants are all riparian owners and/or persons who land is or is likely to be physically affected by the order. The Board found that, if it accepted Catalyst’s interpretation of section 92(4), then all persons who would have a right of appeal under section 92(1), except Catalyst, would be left in an untenable situation, as the appeal period would begin when Catalyst received the order, and they would have no way of knowing when the appeal period would begin to run or when it would expire. Given the potential importance to, and impact of such orders on, these classes of persons, Catalyst’s interpretation cannot be what the Legislature intended. The Board held that section 92(4) should be given a large and liberal interpretation, consistent with section 8 of the Interpretation Act, and that the subject Appellants are also “persons subject to the order”, given the breadth and terms of the order in this case.

The Board found that the four Appellants received notice of the order on June 5 and 6, 2013, and the Board received those Appellants’ notices of appeal on July 3 and 4, 2013, respectively. Accordingly, their appeals were filed within the 30-day appeal period.

In addition, the Board noted that the issue raised by Catalyst highlighted the potential for confusion and unfairness in other cases, and the Board recommended that the Ministry consider making a regulation under sections 92(4)(b) and 101(2)(d) of the Water Act to ensure that appellants have clear direction on when the appeal period begins.

Accordingly, the application to dismiss the four appeals for lack of jurisdiction was denied.