British Columbia’s Environmental Appeal Board has overturned an engineer’s order requiring two Sooke property owners to stop work and obtain a professional rehabilitation plan, finding that the evidence did not establish the alleged stream or the culvert blockage on which the order depended.
The May 4, 2026 decision in Isdahl et al. v. Assistant Water Manager, 2026 BCEAB 23, is not a declaration that no stream exists. The board expressly declined to decide that question conclusively and left the assistant water manager to decide whether to undertake another investigation. Reasons, paras. 1–8 and 272–278.
A disputed drainage system
The September 2022 order required Carol-Anna Isdahl and Cori-Ann Isdahl to retain a qualified environmental professional to assess works said to obstruct an unnamed tributary of Veitch Creek and prepare a remedial plan. It arose from a long-running dispute about water moving between neighbouring properties.
The ministry’s position was that a connected natural system ran from an upland swamp through several pond and wetland features, a culvert and downstream channels to Veitch Creek. It said the Isdahls had blocked the culvert and interfered with the natural drainage.
The owners challenged both parts of that theory. They said water was being diverted onto their land by human-made works, and that the necessary natural connections had not been established. Although they acknowledged trying to block a blue plastic pipe with concrete, they disputed whether the attempt worked or whether that pipe connected to the culvert identified by the ministry. Reasons, paras. 2–10, 108–110, 145–149 and 250–265.
Investigator could testify to facts, but not as an expert
The decision also supplies the reasons for a ruling made during the hearing that barred ministry employee Angela Cameron from giving expert evidence in this case. Cameron had investigated the properties and played a central role in preparing, advancing and defending the order.
The board emphasized that employment by a party does not automatically disqualify an expert. Its concern was the cumulative nature and extent of Cameron’s involvement: the way she investigated the complaint, her effective role in deciding to issue the order, her advocacy for its enforcement, participation in defending the appeal and differential treatment of the owners and their neighbour.
The panel found those circumstances created a realistic concern about her impartiality that the ministry had not answered on a balance of probabilities. It also identified problems with the proposed report, including legal conclusions and opinions outside her expertise as a certified biologist.
Cameron was not excluded from the proceeding altogether. The board heard and considered her evidence as a fact witness. Reasons, paras. 69–71 and 96–107.
Missing links in the evidence
The board examined the proposed stream feature by feature. It found the evidence did not establish the claimed connection from the upland swamp to the other features, while accepting evidence that diverted water from a neighbouring property contributed to the accumulation on the Isdahls’ land.
Importantly, the uncertainty was not confined to the owners’ evidence. The hydrologists who testified identified a need for further surveys and analysis to determine how water would naturally flow in an area altered by development. The ministry’s own hydrologist considered it more likely that the pre-development flow went through the neighbouring property, rather than along the route assumed for the order.
The panel also found inadequate evidence that the disputed pond and wetland features met the statutory requirement of being natural. But it did not adopt every argument made by the owners: for example, evidence about the age of trees was insufficient to resolve the historical drainage route. Further investigation could produce a different conclusion. Reasons, paras. 205–242 and 248–249.
The culvert issue presented a separate evidentiary gap. The board distinguished an admitted attempt to block a blue plastic pipe from proof that the relevant culvert had actually been blocked. The connection between the two had not been established, and assumptions about the outlet’s location and a boulder covering it were inadequate. The ministry had not adequately explained why checks using water, dye, a wire or a camera were not attempted. Reasons, paras. 266–271.
The owners met their evidentiary burden to undermine the findings supporting the order; the responding evidence did not repair those deficiencies. The board therefore allowed the appeal and set the order aside—not because it had proved there was no stream or blockage, but because the necessary findings were not supported on the record before it. Reasons, paras. 205–206 and 272–278.
