Decision Date: October 4, 2021

Panel: Brenda Edwards

Keywords: Water Sustainability Act – s. 93; Administrative Tribunals Act – s. 34(3)(b); wetland; unauthorized change to a stream; document disclosure application; application for particulars

Legacy Ridge Developments Squamish Ltd. (“Legacy Ridge”) owns land that it is developing for residential use (the “Property”). In November 2017, the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”) notified Legacy Ridge that there had been an unauthorized infilling of a wetland on the Property, contrary to the Water Sustainability Act (the “Act”). The Ministry requested that Legacy Ridge stop work at the Property and retain a qualified environmental professional to submit a habitat restoration plan.

In December 2017, Legacy Ridge submitted a habitat restoration plan (the “Restoration Plan”) which concluded that 780 square meters of anthropogenic (human-made) wetland had been infilled on the Property. The Restoration Plan recommended compensating for the infilled wetland by creating an off-site wetland on adjacent Crown land, using a compensation ratio of 1.5:1 (i.e., creating 1.5 square metres of new wetland for every square metre of wetland that was infilled).

In January 2018, the Ministry reviewed the Restoration Plan, but did not approve it. The Ministry indicated that onsite restoration was preferred, but an off-site location may be acceptable subject to a 2:1 compensation ratio.

In September 2019, Legacy Ridge advised the Water Manager that it would not be submitting a revised restoration plan.

In November 2019, the Water Manager issued an order (the “Order”) alleging that, by infilling a wetland on the Property, Legacy Ridge made unauthorized changes in and about a stream contrary to the Act. The Order required Legacy Ridge to: submit a plan for 1560 square meters of aquatic habitat and 6900 square meters of riparian habitat for offsite wetland compensation, or submit a plan to restore the infilled wetland on the Property; and, implement the plan once approved by the Water Manager.

In December 2019, Legacy Ridge appealed the Order. Legacy Ridge submitted that the wetland on the Property was not a “stream” because it was not naturally occurring, the wetland was infilled by a previous owner of the Property, and the 2:1 compensation ratio was unreasonable. It asked the Board to “quash” the Order, or alternatively, vary the Order by removing the requirement for a 2:1 compensation ratio if restoring an offsite wetland.

Before the appeal was heard, the Water Manager applied for orders requiring Legacy Ridge to disclose certain categories of documents, and to provide further particulars or details regarding some of its grounds of appeal.

The Board found that the Water Manager’s requests for documents were broadly worded and did not explain how the requested documents were relevant to the issues in the appeal. Further, the Water Manager’s requests failed to acknowledge the documents that Legacy Ridge had already produced, or explain how the document production was deficient. Without a more clearly articulated basis for the request, and a clear indication that Legacy Ridge was asked to voluntarily disclose the documents and had declined to do so, the Board held that there was no basis to determine whether the documents may be relevant to the issues in the appeal, were likely to be in Legacy Ridge’s possession and control, and should be ordered to be produced. Consequently, the Board denied the request for disclosure of documents.

Next, the Board considered whether to order Legacy Ridge to provide particulars with respect to some of its grounds of appeal. The Board noted that the main functions of particulars are to inform other parties of the case they have to meet, and to assist the parties in preparing for the appeal. Particulars need not ‘spell out’ the mode that a party will use to prove its case. After considering the parties’ submissions, the Board granted part of the Water Manager’s request for further particulars from Legacy Ridge.

Accordingly, the application for document disclosure was dismissed, and the application for further particulars was allowed, in part.