Decision Date: October 31, 1994

Panel: Judith C. Lee

Windemere Lake Resort Ltd. began filling in a swamp, acting on the belief that it did not require permission from the Water Management Branch. The East Kootenay Environmental Society’s lawyer wrote to the Regional Water Manager pointing out that the Branch’s authorisation was required. After receiving this letter, the Branch quickly gave Windemere permission. The Society appealed to the Board seeking to stop the development until an environmental assessment could be conducted, and the Board issued a temporary ex parte order staying the filling. The Board heard from all parties to consider whether to vacate the stay.

Windemere Lake Resort Ltd. argued that the authorisation did not amount to an “order” under the Water Act and that there was consequently no grounds for appeal. The Board disagreed, holding that an order, under the Water Act, includes any “decision or direction whether given in writing or otherwise”. Nor does the Act restrict who can appeal an order; the Society was found to have public interest standing. Irregularities in the application for appeal were not sufficient to defeat it.

The Board’s jurisdiction to issue an ex parte stay was challenged. The Board rejected the narrow interpretation of the Water Act suggested by the Deputy Comptroller and found that the broad power to make orders “that to the Tribunal appears just” encompassed a power to order an ex parte stay.

Although the Board found that the Society had a serious issue to be tried, it had not shown that it would suffer irreparable harm which could not be adequately compensated for by an award of damages. Although the wetlands would be damaged, there was little evidence as to the cost of reconstruction, while the damages to Windemere Lake Resorts Ltd. were clear. The stay was vacated. Windemere Lake Resorts appealed the decision to the B.C. Supreme Court.