Decision Date: May 31, 2021

Panel: Darrell Le Houillier

Keywords: Water Sustainability Act – s. 93; Administrative Tribunals Act – s. 25; stay application; order; changes in and about a stream; berm; flooding

Denis Lefebvre (the “Appellant”) owns a corporation that owns the Eldorado Mobile Home Park (the “Park”), located adjacent to the Nicola River in Merritt, BC. The Park is protected from flooding by a dike that runs along the Nicola River. Across the Nicola River from the Park, two properties were protected by a berm built in recent years, which the Appellant claimed was unauthorized. Both sides of the Nicola River near the Park had experienced flooding in the past.

The Appellant was concerned that the berm across the river from the Park would exacerbate flooding at the Park. Consequently, in June 2020, the Appellant topped part of the dike protecting the Park with gravel, creating a berm on top of the dike.

In November 2020, the Assistant Water Manager, Ministry of Forests, Lands, Natural Resource Operations and Rural Development, determined that the Appellant had made changes in and about the Nicola River without authorization, contrary to the Water Sustainability Act. The Assistant Water Manager issued an order requiring the Appellant to: remove the fill placed in June 2020; provide a design and workplan for a new flood deployment pathway by January 21, 2021; undertake and complete the works within 90 days of their approval; and, submit drawings and photographs showing that the constructed works complied with the approved design and workplan.

The Appellant appealed the order on several grounds. Among other things, he submitted that he had a right, under the common law, to protect the Park from flooding. The Appellant requested a stay of the order pending the outcome of the 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 Appellant, as the applicant for a stay, to establish that his interests would likely suffer irreparable harm if a stay of the order was denied. The Board found that the Appellant had failed to do so. Although the Board found that flooding would pose a risk of irreparable harm to the Appellant’s interests, the evidence showed that the berm was about 80 feet-long, whereas the waterfront of the Park was 300 feet-long. Therefore, the berm offered no protection for most of the Park’s waterfront. This meant that the Park would have no greater protection even if a stay was granted and the berm remained in place until the appeal was decided.

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 Appellant did not establish that he was 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.