Decision Date: October 13, 2016

Panel: Alan Andison

Keywords: Water Sustainability Act – ss. 105(4); Administrative Tribunals Act – s. 25; order; stay; preliminary decision; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

Kulwinder Singh Gill and Avninderjit Kaur Gill (the “Applicants”) appealed an order issued by the Assistant Regional Water Manager (the “Regional Manager”), Ministry of Forests, Lands and Natural Resource Operations. The order was issued in mid-May 2016, in response to the Applicants allegedly making several unauthorized changes in and about streams that flow across or adjacent to their property.

The Applicants’ property is located in Mission, BC, in an area with a history of flooding, erosion, and unstable stream channels. The Applicants operate a blueberry farm on the property. According to the order, the Applicants filled part of a stream without authorization and planted the area with blueberries, placed fill along a stream bank without authorization, and built a block wall along another stream bank without authorization, among other things. The order required the Applicants to do several things including: immediately stop making unauthorized changes to streams; immediately hire a qualified environmental professional to prepare and implement updated sediment and erosion control measures on the property; submit a habitat assessment and restoration plan for the filled stream by mid-June 2016; and, hire a qualified professional to submit a plan to remove the wall and re-slope the stream bank by mid-June 2016.

The Applicants appealed the order on several grounds, including that the unauthorized changes were done to prevent flooding on their property. The Applicants requested a stay of the order pending a decision from the Board on the merits of the appeal, on the basis that compliance with the order would be very costly and would interrupt their blueberry harvest, and that none of the “consequences of failing to comply with the order” would occur until “wintertime.”

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 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 the Applicants failed to establish that their interests would likely suffer irreparable harm if a stay was denied. Although the Applicants asserted that compliance with the order would cost them a great deal of money, they provided no information or evidence to support that assertion. The Applicants had already complied with some of the requirements in the order, and the only remaining on-site work required by the order was to update the erosion and sediment controls on the property. The other requirements in the order were to provide information or submit plans, but there was no requirement yet to implement those plans. In particular, the order did not require removal of the block wall or rehabilitation of the infilled stream; rather, it required the preparation of plans to do so. There was also no evidence that compliance with the order would interrupt the Applicants’ blueberry harvest. Although the Applicants would incur some costs to comply with the order, the Board found that those costs may be recoverable if the appeal is successful, and there was no evidence that those costs would cause irreparable harm to the Applicants’ financial interests or their interests as land owners and blueberry farmers.

Turning to the third part of the test, the Board found that the balance of convenience favoured denying a stay. The Board found that the appeal was scheduled to be heard in March 2017, and therefore, granting a stay would result in there being no updated erosion and sediment control measures on the property during the winter when high stream flows occur. Also, a stay would delay the preparation of plans to restore the infilled stream, which may cause harm to the environment because restoration becomes more difficult over time. Also, there would be no plan to address the block wall in the event that it caused worse flooding on neighbouring properties or became unstable due to erosion and high stream flows. Additionally, the Board found that the order should be presumed to be in the public interest given that it was intended to address unauthorized changes to streams, and given the known risks of flooding and erosion in the area during the winter and spring. The Board concluded that, if a stay was granted, the risks to the environment, public safety, and the public interest outweighed the potential inconvenience and cost to the Applicants if a stay was denied.

Accordingly, the application for a stay was denied.