Decision Date: February 5, 2021

Panel: David Bird

Keywords: Water Sustainability Act – s. 93(2)(d); Administrative Tribunals Act – s. 25; stay application; order; dugout

The Appellants, Stanley and Wendy Nichol, own land near Monte Creek, BC. They use part of their land to grow hay. In or about 2003, they constructed a dugout on their property. According to the Appellants, they built the dugout by widening a ditch that was built in the 1940s and building up the surrounding ground, to create better drainage for their hay field. The Appellants claimed that a water licence issued in 1903 authorized the construction of diversion structures, and the work they did was “maintenance”.

In July 2020, the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development, issued an order (the “Order”) requiring the Appellants to decommission the dugout. According to the Order, the dugout was diverting and storing surface water from Monte Creek during Spring freshet, and intercepting and storing spring water at other times of the year. The Order required the Appellants to hire a qualified professional to develop a plan for decommissioning or modifying the dugout, and a professional biologist to complete an environmental management plan to manage and mitigate impacts of the work. Both plans had to be submitted to the Water Manager by September 30, 2020, and any works were to be completed by February 28, 2021.

The Appellants appealed the Order, and subsequently requested a stay of the Order pending the outcome of their appeal.

In determining whether the stay application ought to be granted, the Board applied the three-part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.).

With respect to the first stage of the test, the Board found that the appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. Therefore, the Board proceeded to consider the next stage of the test.

The second part of the test required the Appellants, as the applicants for a stay, to establish that their interests would likely suffer irreparable harm if a stay of the Order was denied. The Board found that the Appellants would likely suffer irreparable harm if a stay was denied. Their farming operation would likely suffer from flooding and crop loss. In addition, the Appellants would incur financial costs associated with hiring qualified professionals and carrying out the work required by the Order, and those costs are unlikely to be recoverable even if the appeal is successful.

The third part of the test required the Board to determine which party would suffer the greater harm from the granting or the denial of the stay application. The Board concluded that the balance of convenience weighed in favour of granting a stay of the Order. Based on the information available to the Board, it appeared that the dugout had existed for approximately 17 years, and there was no evidence of what harm the dugout may be causing, if any, to the environment, water resources, or other public interests that are protected or furthered by the Water Sustainability Act. If the stay application was granted, the Appellants would not incur the cost of hiring qualified professionals and possibly having a portion of their hay fields become flooded until the appeal was decided by the Board. Conversely, if the appeal was unsuccessful, the requirements in the Order could still be carried out after the appeal concluded.

Accordingly, the application for a stay was granted.