Decision Date: March 31, 2021

Panel: David Bird

Keywords: Water Sustainability Act – s. 93; Administrative Tribunals Act – s. 31(1)(a); order; flooding; unauthorized change in a stream; summary dismissal; moot; jurisdiction

Dario Rossi, Cora Rossi, Rocky Rossi and Samantha Rossi (the “Appellants”) appealed an order issued in 2020 by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”). The order required the Appellants to immediately remove sandbags and unauthorized material they had placed in an unnamed stream running through their property in Abbotsford, British Columbia. The stream flows through a culvert under Ranch Avenue and enters their property. The culvert drains from a neighbouring property, across Ranch Avenue.

According to the Appellants, landscape changes by others direct so much water through the culvert at certain times that water rises over the banks of the stream, causing flooding on their property. To prevent the flooding, the Appellants placed sandbags in the stream downgradient from the culvert. The Appellants did not receive authorization from the Ministry before placing the sandbags.

The Appellants appealed the order, and requested “the unconditional withdrawal” of the order.

This was the Appellants’ second appeal regarding an order to remove sandbags. The first appeal was against a 2019 order, and resulted in the Board deciding that the Appellants had unlawfully placed sandbags in a “stream” as defined in the Water Sustainability Act (Rossi et al v. Assistant Water Manager, Decision No. 2019-WSA-19-A007(a), May 22, 2020). However, the Board did not decide the remaining issues in that appeal because the 2019 order was rescinded before that appeal was heard.

Before the second appeal was heard, the Appellants removed the sandbags, and the Water Manager rescinded the 2020 order. However, the Appellants requested that the Board still hear the appeal. They defended placing the sandbags to protect their property against flooding.

The Board asked the parties to provide submissions on whether the appeal should be dismissed under section 31(a) of the Administrative Tribunals Act (the “ATA”) because the Board lacked jurisdiction to hear the appeal, or alternatively, the appeal was moot because the 2020 order had been rescinded.

The Board found that it lost its authority to hear the appeal once the 2020 order was rescinded. Although there remained a live issue or controversy from the Appellants’ perspective regarding flooding on their property, this issue was not within the Board’s jurisdiction even if the 2020 order had not been rescinded.

The appeal was summarily dismissed pursuant to section 31(a) of the ATA.