Decision Date: April 16, 2018

Panel: Cindy Derkaz

Keywords: Water Sustainability Act – s. 93(2)(d); Administrative Tribunals Act – s. 25; order; stay; preliminary decision; dam; flooding; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

This stay application was part of a long-running dispute between Bernard Wohlleben and the Lenko Family concerning flooding on the Lenko Family’s waterfront property on Gabriola Island, BC. Mr. Wohlleben and Tammy Lofstrom own a waterfront acreage adjacent to the Lenko Family’s property. Martin Brook is a seasonal stream that flows through both properties and then into the ocean.

In 1994, a former water manager with the Ministry (now the Ministry of Forests, Lands, Natural Resource Operations, and Rural Development) issued a water licence and a permit to occupy Crown land, which authorized the construction of a dam on the Crown foreshore and the property of Mr. Wohlleben and Tammy Lofstrom, at the mouth of Martin Brook. The purpose of the dam was to store fresh water from Martin Brook for irrigation and stockwatering.

After the dam was built, the Lenko Family complained that the dam caused unauthorized flooding on their property. In response, Mr. Wohlleben insisted that the flooding was on Crown land, and was authorized by the water licence and the permit authorizing the occupation of Crown land. At the heart of the dispute was a disagreement about the location of the legal boundary between the private property and the Crown-owned foreshore.

In 2002, a former water manager issued an order cancelling the water licence and requiring the dam to be removed (the “2002 Order”). Mr. Wohlleben appealed the 2002 Order to the Board. In deciding that appeal, the Board found that although the dam may cause some flooding above the natural boundary of the Crown foreshore, there was insufficient evidence to reach a conclusion about the location of the boundary (Wohlleben v. Assistant Regional Water Manager, (2002-WAT-034(b)), May 15, 2003). The Board reversed the 2002 Order.

Subsequently, the former water manager reconsidered the matter, and found that the dam caused flooding above the natural boundary of the Crown foreshore. In 2004, he issued another order (the “2004 Order”) cancelling the water licence, and ordering the removal of the dam by September 30, 2004. Mr. Wohlleben did not appeal that order, and did not remove the dam.

In September 2017, the Ministry notified Mr. Wohlleben that it expected him to comply with the 2004 Order, and requested confirmation of his plans by the end of September 2017.

In November 2017, the Assistant Water Manager (the “Water Manager”) issued a further order (the “2017 Order”), requiring Mr. Wohlleben and Ms. Lofstrom to remove the dam. The 2017 Order required them to retain professionals to prepare plans to remove the dam and to restore Martin Brook. The 2017 Order further required the dam and related works to be removed, and for Martin Brook to be restored, during the summer of 2018, with all work to be completed by no later than September 28, 2018.

Mr. Wohlleben appealed the 2017 Order to the Board, and applied for a stay pending the Board’s final decision on the merits of the appeal.

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General).

With respect to the first stage of the test, the Board considered whether the appeal raised serious issues to be decided, which were not frivolous, vexatious or pure questions of law. Mr. Wohlleben submitted that the appeal raised the same serious issue as in his 2002 appeal: i.e., what is the correct legal boundary between private property and the Crown foreshore. He submitted that the answer to that question was critical to the issue of whether the dam caused flooding of the Lenko property. Mr. Wohlleben submitted that the 2004 Order was incorrect, and he requested that the Board overturn the 2004 Order and the 2017 Order.

The Water Manager submitted that the appeal was “frivolous” and raised no serious issue to be tried, because the 2004 Order cancelled the water licence, and therefore, Mr. Wohlleben had no authority to maintain the dam and store water. The appeal period for the 2004 Order expired long ago, and the Board had no jurisdiction to reverse or vary the 2004 Order. Also, the 2004 Order was not reversed or replaced by the 2017 Order.

The Board found that the 2004 Order cancelled the water licence that authorized the dam and related works. Mr. Wohlleben did not appeal that order. Once the licence was cancelled, Mr. Wohlleben had no authority to maintain the dam or to store water from Martin Brook. The 2017 Order did not revisit the licence cancellation; it only addressed the removal of the unauthorized dam and the restoration of Martin Brook. Therefore, the Board could not reconsider the cancellation of the licence. The Board concluded that the appeal, as filed, was “frivolous”, and Mr. Wohlleben had not established a serious issue to be decided.

Given those findings, the Board did not need to consider the second part of the RJR MacDonald test. However, for greater certainty, the Board found that Mr. Wohlleben had failed to show that he would suffer irreparable harm if the stay was denied and he was required to provide the plans required by the 2017 Order prior to the Board’s final decision on the merits of the appeal.

Given the findings on the first and second parts of the RJR MacDonald test, the Board found that it did not need to address the third part of the test. However, the Board would have found that the balance of convenience favoured denying the stay.

Accordingly, the application for a stay was denied.