Decision Date: October 28, 2013

Panel: Alan Andison

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

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 permanently close an artesian water well.

The order required him to stop the artesian flow from the well by October 31, 2013.

Hazel 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 an interim order to Mr. Vlchek on March 28, 2013. The interim 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 interim order, and requested a preliminary stay of that order pending a decision from the Board on the merits of the appeal. On April 16, 2013, the Board denied that stay application (John Vlchek v. Regional Water Manager, Decision No. 2013-WAT-009(a)).

In fact, Mr. Vlchek complied with the interim order before the Board issued that decision.

On August 30, 2013, the Regional Manager issued a second order to Mr. Vlchek, requiring him to permanently close the artesian well, and construct at least one relief well to reduce the groundwater pressure sufficiently to allow permanent closure of the well.

Mr. Vlchek appealed the second order, and requested a stay of that order pending a decision on the merits of the appeal.

In the meantime, the Board scheduled Mr. Vlchek’s two appeals to be heard together in November 2013.

The Regional Manager took no position on the stay application. However, in the event of an application for an adjournment of the scheduled appeal hearing, the Regional Manager requested an opportunity to make further submissions on the continuation of any stay that might be granted.

Ms. Collins took no position on whether the stay should be granted, but she identified certain concerns with the existing state of the well.

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, 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, Mr. Vlchek provided evidence that the costs of constructing one relief well and decommissioning the existing well would be approximately $660,000, and the costs would be higher if more than one relief well had to be constructed. He also provided evidence that he would not be able to collect from Ms. Collins. Consequently, the Board found there was a likelihood of irreparable harm to Mr. Vlchek’s interests if a stay was denied, and he was ultimately successful in his appeals.

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 granting a stay. Although there was evidence in Mr. Vlchek’s previous stay application that denying a stay would pose serious risks of harm to public safety, private property, infrastructure, and the environment, there was no evidence of such risks in the present case. According to Mr. Vlchek, those risks had been abated, and he provided two expert reports in support that were not challenged. The Board also found that Ms. Collins’ concerns about the state of the well appeared to be unrelated to Mr. Vlchek’s responsibilities under the order. Given the likelihood of irreparable harm to Mr. Vlchek’s interests if a stay was denied, the Board found that the balance of convenience favoured granting a stay, subject to conditions that Mr. Vlchek monitor and prevent ice from blocking the drainage from the well during the winter.

Accordingly, the stay application was granted.