Decision Date: June 25, 2021

Panel: David Bird

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

Larry Jones (the “Appellant”) appealed a stop work order (the “Order”) issued by an Assistant Water Manager with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

The Order arose from the following circumstances. In March 2021, a conservation officer saw an excavator working in and around two streams near Grand Forks, British Columbia. Specifically, on March 26, 2021, the officer saw work happening in and around Volcanic Creek. On March 29, 2021, the officer saw work happening in and around Granby River. Both incidents occurred adjacent to land owned by Red Hawk Ranch Ltd, of which the Appellant is a director. On each occasion, the officer told the Appellant that section 11 of the Water Sustainability Act (the “WSA”) required him to apply for authorization to make changes in or about a stream before doing such work.

On March 30, 2021, the Appellant applied to the Ministry for an authorization to make changes in or about a stream.

On April 1, 2021, the Assistant Water Manager issued the Order under section 93(2)(b) of the WSA.

The Appellant appealed the Order. He submitted that the ranch suffered significant damage and financial loss related to flooding during Spring freshet over the past two years. The Appellant sought to complete riverbank remediation and stabilization before freshet, to prevent further loss of farmland and livestock due to flooding.

Shortly after he appealed the Order, he applied for a stay of the Order pending the Board’s decision on the merits 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.).

First, the Board considered whether the appeal raised serious issues which were not frivolous, vexatious, or pure questions of law. The Board found that this was a rare case where it was appropriate to review the merits of the appeal, because the decision on the stay application may amount to a decision on the merits of the appeal. The Board found that the Appellant would have no legal authority to proceed with works in or about the streams even if his stay application and appeal were successful. Authority to do so depended on the outcome of his application for an authorization. Thus, the Board concluded that the appeal did not raise a serious issue and had no reasonable prospect of success in terms of providing the remedy he sought.

Although the Appellant failed the first part of the test, the Board proceeded to consider the second part of the test, which was whether the Appellant would likely suffer irreparable harm if the application for a stay was denied. The Board found that the Appellant provided insufficient evidence to establish that his interests would likely suffer irreparable harm if the stay application was denied and the Order remained in effect until his appeal was decided. The Appellant referred to past losses from flooding, including the loss of a substantial amount of soil and sediment from the ranch property. However, he provided no evidence to support those his claims. The Board also noted that the Appellant would be in no better position even if the stay was granted.

The third part of the test required the Board to determine which party would suffer the greatest harm from either granting or denying the stay application. The Board found that the balance of convenience favoured denying the stay application, so that changes in and about a stream did not continue without authority, pending the Ministry’s decision on the Appellant’s application for an authorization.

Accordingly, the application for a stay was denied.