Decision Date: January 18, 2019

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 31(1)(g); order; water rental; preliminary decision; issue estoppel; summary dismissal

Harrison Hydro Project Inc., Fire Creek Project Limited Partnership, Lamont Creek Project Limited Partnership, Stokke Creek Project Limited Partnership, Tipella Creek Project Limited Partnership, and Upper Stave Project Limited Partnership (collectively, the “Appellants”) appealed two orders (the “2017 Orders”) issued to Harrison Hydro Project Inc. (“Harrison”). Harrison is the general partner of each of the limited partnerships (collectively, the “Limited Partnerships”), and holds the leases for the Crown land where five hydropower projects operate on five different streams.

The Orders were issued by the Comptroller of Water Rights (the “Comptroller”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The 2017 Orders adjusted the water rental billings for the five hydropower projects for the 2011 and 2012 calendar years, by aggregating the power produced at the five projects. This resulted in significantly higher water rental rates than if the power projects were billed as separate projects.

The Comptroller issued the 2017 Orders after the BC Supreme Court upheld the Board’s decision in Harrison Hydro Project Inc. v. Comptroller of Water Rights (Decision Nos. 2014-WAT-002(a) to 007(a), December 8, 2015), dismissing the Appellants’ appeals of a revised water rental billing order issued in 2013 for the five power projects (the “2013 Order”). The 2013 Order was based on the premise that the power produced by the five projects should be aggregated for the purpose of calculating water rentals pursuant to section 16(4) of the (then) Water Regulation.

As a preliminary matter, the Comptroller requested that the Board dismiss the appeals of the 2017 Orders based on the doctrine of issue estoppel, or because the substance of the appeals had been appropriately dealt with in another proceeding pursuant to section 31(1)(g) of the Administrative Tribunals Act. The Comptroller submitted that appeals should be dismissed because the 2017 Orders were premised on the same findings as the 2013 Order, which was confirmed by the Board and was left undisturbed by the subsequent court proceedings.

Issue estoppel is a common law doctrine that may be applied to prevent the re-litigation of issues that were conclusively decided in a previous case. Certain criteria must be met before issue estoppel may be applied, and even if those criteria are met, the application of issue estoppel is discretionary.

Section 31(1)(g) of the Administrative Tribunals Act provides that the Board may summarily dismiss all or part of an appeal if the Board determines that the substance of the appeal was appropriately dealt with in another proceeding.

The Board found that one of the requirements for the application of either issue estoppel or section 31(1)(g) of the Administrative Tribunals Act has not been met: the key issues in the appeals against the 2017 Orders had not been decided in the appeals against the 2013 Order.

Specifically, the Board held that the appeals against the 2017 Orders raised issues about the proper application and interpretation of the Comptroller’s powers with respect to retroactively reassessing water rental billings. The Board found that such issues were not decided in the previous appeals, nor were they fundamental to the Board’s decision in the previous appeals. The Board also found that it would be unreasonable to expect the Appellants to have argued issues regarding the water rentals charged for 2011 and 2012, and the retrospective application of the Comptroller’s powers, in the previous appeals, since any post-2013 reassessments of pre-2013 billings would be appealable to the Board, just as the 2017 Orders were appealed. Consequently, the Board concluded that issue estoppel did not apply, because the key issues in the appeals of the 2017 Orders had not been decided in the prior appeals. Similarly, section 31(1)(g) of the Administrative Tribunals Act did not apply, because the substance of the appeals of the 2017 Orders was not dealt with in the previous appeals.

Additionally, the Board held that it would result in significant unfairness to the Appellants to use the results of the previous appeal proceedings to preclude hearing the present appeals, and this outweighed the interests of judicial economy and finality in the previous appeal proceedings.

Accordingly, the preliminary application to dismiss the appeals was denied.