Decision Date: January 13, 2017

Panel: Alan Andison, Cindy Derkaz, James Mattison

Keywords: Water Act – s. 20; water licence; apportionment; failure to appear

Thomas Hobby and SC Ventures Inc. appealed a decision of the Assistant Regional Water Manager (the “Regional Manager”), Ministry of Forests, Lands and Natural Resource Operations, denying an apportionment of water rights held under various water licences on Oliphant Lake and Spectacle Creek.

Thomas Hobby owns SC Ventures Inc. In 2005, SC Ventures Inc. became the registered owner of a property (“Lot 74”) in the Malahat District. In 2007, Mr. Hobby became the registered owner of a property (“Lot 75”) in the Malahat District.

On May 12, 2015, the Regional Manager issued a new conditional water licence apportioning water assigned to a number of historical licences to property owners that had made use of the water. He also cancelled portions of the licences appurtenant to properties that had not made use of the water, and did not have any agreement to connect to the infrastructure used to convey the licensed water. A number of the appurtenant properties’ licences were cancelled, including Lots 74 and 75.

Mr. Hobby and SC Ventures Inc. appealed the Regional Manager’s decision. They asked the Board to apportion, or order the Ministry to apportion, water to them.

The Board scheduled an oral hearing of the appeal, commencing on June 20, 2016.

On June 1, 2016, the Regional Manager advised that he would be making a preliminary motion challenging the Appellants’ standing to appeal the decision in relation to Lot 75. He advised that Lot 75 had been sold, and neither of the Appellants had any legal interest in the property.

On June 13, 2016, seven days before the start of the hearing, the Appellants applied to postpone the hearing on the basis that they were involved in a Supreme Court action “to take back the Malahat District Lot 75 property.” If successful in court, the Appellants stated that they would continue to pursue their appeal before the Board in relation to Lot 75. The Board granted the postponement.

On September 22, 2016, the Regional Manager advised the Board that the Appellants’ court proceedings regarding Lot 75 had been dismissed. The Regional Manager requested that the Board schedule a teleconference to address the status of the appeal.

During the teleconference, all Parties and Participants consented to an oral hearing of the appeal commencing at 9:00 am on January 3, 2017. In a subsequent letter, the Board confirmed the hearing date, and that the appeal would be restricted to Lot 74. A Notice of Hearing was sent to all Parties and Participants confirming the date, time, and venue of the hearing.

On January 3, 2017, the Board opened the hearing at the scheduled time. The Appellants were not in attendance. The Board adjourned the hearing until 10:30 a.m. while the Board’s staff attempted to locate Mr. Hobby.

At 10.01 am, the Board’s staff contacted Mr. Hobby by telephone. He advised that he would not be attending the hearing. He was notified that the appeal would be dismissed if he did not appear by 10:30 am.

The Board reconvened the hearing at 10:30 a.m. The Appellants failed to appear. The Board dismissed the appeal, giving oral reasons with written reasons to follow.

Accordingly, the appeal was dismissed.