Decision Date: November 27, 2019

Panel: Darrell Le Houillier

Keywords: Administrative Tribunals Act – s. 39; water licence cancellation; preliminary application; adjournment

Tekamar Mortgage Fund Ltd. and Lori Moen appealed an order issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development, cancelling two water licences that were jointly held by the Appellants. The licences were attached to land near Golden, BC, that the Appellants acquired in 2014 through foreclosure proceedings. The licences authorized the diversion and use of water from Cedar Creek for the purposes of irrigation and power generation.

The Appellants’ land was inaccessible, and the Appellants’ efforts to obtain access to the land were unsuccessful. In September 2018, the Appellants initiated proceedings in the BC Supreme Court alleging that the Ministry of Transportation and Infrastructure failed to ensure access to their land when it approved the subdivision of other land in the area.

In February 2019, the Water Manager cancelled the Appellants’ water licences. The Appellants appealed to the Board.

The appeals were scheduled to be heard in January 2020. In November 2019, the Appellants applied to the Board for the adjournment of the appeal hearing, pending the outcome of the BC Supreme Court proceedings. In addition, the Appellants submitted that the hearing should be adjourned because the Participant in the appeals, Kicking Horse Mountain Resort, had raised a potential conflict of interest issue involving the Appellants’ legal counsel.

The Water Manager submitted that the court proceedings were irrelevant to the appeals, and were not scheduled to begin until May 2021. Also, the Water Manager noted that he informed the Appellants of the conflict of interest issue in May 2019.

Section 39 of the Administrative Tribunals Act (the “ATA”) provides the Board with the discretion to grant adjournments where a party shows, to the Board’s satisfaction, that the adjournment “…is required to permit an adequate hearing to be held.” Section 39(2) of the ATA requires the Board to consider:

1. the reason for the adjournment;
2. whether the adjournment would cause unreasonable delay;
3. the impact of refusing the adjournment on the parties; 
4. the impact of granting the adjournment on the parties; and
5. the impact of the adjournment on the public interest. 

The Board’s Practice and Procedure Manual identifies other factors that the Board may consider when addressing applications for an adjournment.

The Board held that access to the Appellants’ land was a longstanding issue, and was only one of several issues in the appeals. The Board found that none of the other issues in the appeals were related to the access issue, and the Appellants failed to establish how a decision in the BC Supreme Court proceedings would assist them in the appeals. The court proceedings were not scheduled to begin until May 2021, and it was uncertain when they would conclude. An adjournment pending the conclusion of the court proceedings would likely extend several years. The Board found that this would be an unreasonable delay in the context of an appeal process intended to allow timely decision-making. Also, the delay would make the appeal process more complicated and expensive for Kicking Horse Mountain Resort, and possibly for the Water Manager.

In addition, the Board found that the Appellants had answered the question of the conflict of interest, and there was insufficient reason to conclude that the Water Manager or Kicking Horse Mountain Resort would apply to remove the Appellants’ counsel from the case. However, if such an application was made, the Board could reconsider whether to grant an adjournment. The Board also noted that the Appellants did not argue that an adjournment would contribute to resolution of the appeals.

After weighing the impacts of granting and denying the adjournment, including the impacts on the parties and the public interest, the Board concluded that those impacts did not support granting the adjournment.

Accordingly, the application for an adjournment was denied.