Decision Date: April 30, 2021

Panel: David Bird

Keywords: Water Sustainability Act – s. 9; Administrative Tribunals Act – s. 25; stay application; conditional water licence

In November 2020, the Assistant Water Manager, Ministry of Forests, Lands, Natural Resource Operations and Rural Development, issued a conditional water licence (the “Licence”) to Kenneth and Dawn Olynyk (the “Olynyks”). The Licence granted rights to use water for “lawn, fairway, and garden” purposes, and authorized the construction of works to divert water from McGillivray Creek to the Olynyk’s property. The authorized works would cross Crown land and private land not belonging to the Olynyks. Construction of those works was subject to several conditions.

Both the Olynyks and the Reuters appealed the Licence. The Olynyks disputed three conditions in the Licence. The Reuters appealed on the basis that the Licence should not have been granted to the Olynyks.

In addition, the Reuters requested a stay of the Licence pending the outcome of their appeal. They submitted that their water pipeline is buried on the same Crown land to be crossed by the works authorized under the Licence. The Reuters argued that construction of those works could significantly damage their water pipeline, causing losses of crops and income, stress, and repair costs.

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 Reuters, as the applicants for a stay, to establish that their interests would likely suffer irreparable harm if a stay of the Licence was denied. The Board found that the Reuters were unlikely to suffer irreparable harm even if construction of the works authorized by the Licence began before their appeal was decided. In particular, the Board noted that the Licence conditions required that a professional engineer prepare plans for the works and supervise the construction of the works. The Board found that this provided a safeguard against the potential harm alleged by the Reuters.

The third part of the test required the Board to determine which party would suffer the greater harm from granting or denying the stay application. Since the Reuters’s did not establish that they were likely to suffer irreparable harm if the stay was denied, the Board found it unnecessary to consider the balance of convenience.

Accordingly, the application for a stay was denied.