DARREN COOK APPLICANT - v. -, 2023 SKKB 268

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 268 Date: 2023 12 11 Docket: QBG-SA-00217-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: DARREN COOK APPLICANT - and - WATER SECURITY AGENCY RESPONDENT Counsel: Glenn A. Wright for the applicant Robert G. Kennedy, K.C. for the respondent ___________________________________________________________________________ FIAT R.S. SMITH J.

December 11, 2023 ___________________________________________________________________________ Introduction [ 1 ] The applicant, Darren Cook [Applicant], commenced an originating application in February 2021 against the Water Security Agency [WSA] seeking an order in the nature of mandamus . The source of the Applicant’s complaint was the water system servicing Mission Ridge, a small community outside of Saskatoon, which is operated by Lost River Water Co. Ltd. [Lost River]. [ 2 ] The Applicant seeks a cafeteria of relief; specifically, the originating application articulates:

• An Order in the nature of mandamus directing and/or requiring the Respondent to determine the outstanding complaints filed by the Applicant, Darren Cook, on or about March 17, 2017; • In the alternative, an Order in the nature of mandamus pursuant to subsection 68 of The Water Security Agency Act, S.S. 2005, c.

W- 8.1 directing and/or requiring the Respondent to conduct an investigation and make a determination within thirty (30) days of such order in regard to the Lost River Water Co. water works (“the Water Works”) affecting the lands of the Applicant, Darren Cook; • An Order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 68(3) of The Water Security Agency Act to alter, close, remove, destroy or otherwise render inoperable the Water Works causing decreased water pressure resulting in water that fails to meet the regulations and guidelines outlining the minimum requirements for human consumptive use; • An Order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 69(2)(b)(c), and (g), and commence an oral hearing with the Water Work, with an aim to cancel, amend, or suspend the approval and licensing of the Waterworks; • An Order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 53(1) (b)(

e) of The Water Security Agency Act suspending the water rights license of Lost River Water Company; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 28(1) of The Environmental Management and Protection Act, 2010 to cancel, amend, alter or suspend Lost River’s permit to operate; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 35(1) of The Environmental Management and Protection Act, 2010 to issue a Waterworks Protection Order; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 35(3) of The Environmental Management and Protection Act, 2010 to suspend the operator from duty and appoint a project manager to oversee the operations and facilitate compliance; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 68(3) of The Environmental Management and Protection Act to conduct a compliance evaluation to assess the compliance of Lost River related to this Act, the regulations, the code or the terms and conditions of their permit; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to Subsection 78(3) of The Environmental Management and Protection Act to conduct an audit to assess the compliance of Lost River related to this Act, the regulations, the code or the terms and conditions of their permit; • An order in the nature of mandamus directing and/or requiring the Respondent to issue an order pursuant to

Section 84 of The Environmental Management and Protection Act; • An order that the costs of this application be paid by the Respondent on a full indemnity basis. [ 3 ] WSA posits multiple arguments why the Applicant’s originating notice should be struck.

Background [ 4 ] The Applicant first began complaining to the WSA respecting the water system of Lost River [Distribution System] in 2017. [ 5 ] The crux of the Applicant’s position was that Distribution System had a water pressure level that was too low, and, as a result, created a number of public health risks. [ 6 ] WSA’s reply to the Applicant was that it imposed no pressure requirements for the Distribution System on Lost River.

Further, public health is not an issue as there is constant water quality testing. [ 7 ] Lost River’s Distribution System consists of approximately 12 kilometres of 1-inch and 2-inch pipeline that ties into the Sask Water Saskatoon Northeast treated pipeline. In other words, it uses treated City of Saskatoon water for the Distribution System that supplies Mission Ridge. The Distribution System only consists of underground pipes.

There are no pumps or other infrastructure. [ 8 ] As there is no requirement for a pressure system, typically, users of this system will have a cistern (holding tank) that will fill over time. The users can then pump the water from the cistern to other taps in their home or building. [ 9 ] WSA has issued Lost River a number of permits to operate [PTOs]. The current PTO in effect is from 2016. It does not include pressure requirements.

The PTO does include sampling requirements for bacteria, chlorine residual, turbidity and other chemicals. [ 10 ] Since 2017 the Applicant has had ongoing conflict not only with WSA but with Lost River with respect to the pressure issue. That debate is currently being litigated in QBG-SA-00348-2019 [Applicant’s first claim]. [ 11 ] The Applicant took the position that WSA was negligent in carrying out its duties and sought an order against the WSA to investigate Lost River in relation to lack of pressure and safety, and require that the appropriate changes be made to the Distribution System.

For good measure, the Applicant also sought damages in the amount of $250,000. [ 12 ] The WSA has taken pains to explain to the Applicant that the nature of the Distribution System is such that it

does not have to meet a particular pressure standard. The WSA has inspected the Distribution System each year since 2017, and it has operated as intended. There is no health risk or safety risk to the residents of Mission Ridge. [ 13 ] The Applicant’s first claim commenced in 2019, and in September 2020 it added WSA as a defendant. The Applicant asserted that WSA owed him a duty to provide him with safe water and to ensure Lost River was complying with the relevant regulations ( The Waterworks and Sewage Works Regulations , RRS c E-10.22 Reg 3 [ Regulations ]. [ 14 ] The Applicant complains the WSA is wrong.

It asserts that a proper reading of the Regulations requires Lost River to have a Distribution System with a minimum of 14 psi pressure. An extract from the Applicant’s brief outlines his reasoning. 15. Lost River Water is a permittee pursuant to the Regulations and Section 2(1)(pp) of the Act. The Regulations outline compliance requirements for permittees as

Section 19 : Compliance 19 Every permittee shall: (

a) comply with this Part; (

b) cause the waterworks to conform with the requirements of this Part; (

c) inform every employee, helper or agent of the permittee of the contents, terms and conditions of the permittee’s permit before that employee, helper or agent performs any work pursuant to the permit; and (

d) design any new, upgraded, altered or extended waterworks in accordance with the waterworks design standard. The Waterworks and Sewage Works Regulations , Sask Reg 43/2020. 16. The waterworks design standard is incorporated by reference into the Regulations at

section 16 (b): (b) “waterworks design standard” means the Waterworks Design Standard , EPB 501, as established by the minister on November 15, 2012, adopted pursuant to the Adoption of Standards

Chapter of the Saskatchewan Environmental Code. The Waterworks and Sewage Works Regulations , Sask Reg 43/2020. 17. The Waterworks Design Standard (“EPB501”) outlines requirements with respect to distributions systems at

section 5 wherein it states: “… positive pressure must be maintained at all times to prevent intrusion of contaminants.” 18. EPB 501 also clearly discusses minimum pressure requirements: Systems must be designed to prevent depressurization which occurs when any disruption causes a loss of continuous positive pressure to below 20 psi. The potential for public health risks associated with depressurized distribution system is directly linked to pathogen contamination, harmful chemical intrusion, and exposure to excess disinfectant residual. For more information see publication System Depressurization.

Water Security Agency, Waterworks Design Standard EPB 501 , (Regina, Saskatchewan: November 15, 2012). 19. The WSA publication, System Depressurization, EPB 388b , is filed on the record of action QBG 217 of 2021 in the affidavit of Darren Cook, dated February 24, 2021, as Exhibit C. 20. The WSA also publishes The Water Pipeline Design Guidelines (EPB 276), which are a supplement to EPB 501. The foreword to the supplemental guidelines state: This design guide is a supplement to EPB 501 – Waterworks Design Standard.

This guide applies to all water pipelines regulated by The Waterworks and Sewage Works Regulations and should be used as a companion to the applicable Acts, Regulations and other provincial publications currently in use or as may be published from time to time. Water Security Agency, Water Pipeline Design Guidelines EPB 276 , (Regina, Saskatchewan: June 2015). 21. The Water Pipeline Design Guidelines state at

section 14: The minimum acceptable water pressure at water pipeline withdrawal points is 98 kPa (14 psi) if all serviced connection withdrawal points are protected by an air gap backflow preventer or equivalent. The minimal acceptable water pressure at all other withdrawal points is 138 kPa (20 psi). Water Security Agency, Water Pipeline Design Guidelines EPB 276 , (Regina, Saskatchewan: June 2015). 22.

As the Waterworks Design Standard is incorporated by reference into the Regulations and EPB 276 are supplemental guidelines to EPB 501, these requirements are to be interpreted as mandatory requirements for Permittees of waterworks, not merely guidelines to follow at the discretion of an operator of a waterworks. 23. The Permit to Operate the Lost River Water system states: inter alia :

Section Two: Operation

2.1 The Permittee shall comply with the Act and Regulations, and the Terms and Conditions of this Permit. 2.2 In the event of an inconsistency between the Act and the Permit, or the Regulations and this Permit, the more stringent requirement shall apply. …

Section Five: Reporting and Consumer Reporting … 5.3 The Permittee shall report to the Minister any known or anticipated upset condition, bypass condition or events affecting a Waterworks that could adversely affect the quality of water produced by the waterworks. 5.4 The Permittee shall immediately report to the Minister any instance where: … (

e) a system depressurization has occurred. … [ 15 ] Suffice it to say, the WSA does not agree with the Applicant’s

interpretation of the Regulations . [ 16 ] The Applicant’s first complaint with the WSA was in 2017. As the WSA was added to the claim in 2020, the Applicant’s first claim was prima facie statute barred because it was beyond the two-year time limit in The Limitations Act , SS 2004, c L-16.1 . Back in early 2021 the WSA was moving to an application to strike by reason of the claim being time barred. [ 17 ] On February 24, 2021 the Applicant’s first claim was discontinued against the WSA.

Days later, on February 26, 2021, the Applicant served the WSA with the within application, an originating notice. [ 18 ] The Applicant seeks an order in the nature of mandamus . For all practical purposes, he seeks the same remedy as he did in the Applicant’s first claim, saving and excepting the demand for $250,000 has been dropped. [ 19 ] Lee Reinhart is an environmental project officer who has worked for the Government of Saskatchewan since 2006. Currently, he works in that role under the environmental and municipal management services division of WSA.

At paragraphs 2 and 3 of his affidavit sworn March 19, 2021 he outlined his role: 2. Part of my mandate is to carry out the regulatory functions of the WSA with respect to the Mission Ridge Development (“Mission Ridge”) water Distribution System since it was originally developed, and as such, I have personal knowledge of the matters and facts herein deposed to except where stated to be on information and belief and where so started I verily believe the same to be true. 3. Amongst its many functions, the Water Security Agency acts as the regulator of waterworks Distribution Systems in Saskatchewan.

The WSA issues permits to construct waterworks, permits to operate waterworks, and conducts inspections of these systems, at a minimum, on an annual basis. This power has been conferred on the WSA by the Minister responsible for the WSA pursuant to the powers under the Environmental Management and Protection Act, 2010, SS 2010, c E-10.22 (EMPA, 2010). [ 20 ] At paragraphs 11 – 25 of the affidavit Mr. Reinhart helpfully outlines the regulatory environment within which Lost River operates. He avers: 11.

None of the applications or permits made with respect to the Mission Ridge Pipelines included any pressure requirements. Only a design flow rate is included in any of the applications or regulatory approvals. 12. Systems with low flow rates, such as the Mission Ridge system, are typically referred to as “trickle systems” and are designed to deliver water to small/rural communities. As a result of the low flow rates and other design parameters, such as pipeline length, it is impractical to design these systems with pressure requirements. 13.

Instead, trickle systems are designed only to deliver a low rate of flow into a user’s cistern. In residential homes, a cistern will typically be located in the basement and the user will then pump and pressurize the water to the various taps throughout the home at a pressure that they desire. There are no regulatory pressure requirements on a user’s property. 14. As mentioned earlier, the governing regulations have changed since the Pipeline was constructed.

At the time of construction, waterworks such as these fell under the jurisdiction of the Ministry of Environment pursuant to EMPA, 2002 and The Water Regulations, 2002 , RRS c E-10.21 Reg 1 (the “ 2002 Regulations ”). 15. The initial permits that were issued prior to the change in governing regulations stated that the Mission Ridge Pipeline was to comply with 2002 Regulations .

Section 24 of the 2002 Regulations required waterworks to conform to the design standards within the Guide to Waterworks Design , EPB 201 (“EPB 201”). EPB 201 is a document authored by the WSA and the Ministry of Environment, and it contains numerous pieces of design information and standards for water supply, treatment, storage, and Distribution Systems. 17. EPB 201 addresses pressure in the design of water Distribution Systems, but does not address operations.

With respect to small water Distribution Systems, EPB 201 also differentiates between systems designed with fire protection and systems designed without fire protection. A system designed with fire protection is one that is designed with sufficient pressure to help fight a fire. Not all systems need

to, or should be designed with fire protection. 18. For those systems that are designed without fire protection, the only requirement in EPB 201 with respect to pressure is that thesystem be designed on the basis of hydraulic requirements with due regard for potential future maintenance needs. In other words,according to EPB 201, small systems designed without fire protection are only designed for flow rates based on the design demand of thesystem’s users, with consideration for future maintenance. 19.

There are no quantitative design pressure requirements (e.g. a certain number of pounds per square inch of pressure or “psi”) in EPB201 for systems without fire protection. 20. Together, the Mission Ridge Pipelines are a small system that was not designed for fire protection. It was designed only to deliver acertain flow rate (16 gallons per minute) that could accommodate a total of 46 residential homes. It was not designed to deliver water atany particular pressure. 21. As stated, EPB 201 does not address pressure during operations.

Equally, neither the PTO’s nor the 2002 Regulations contain anypressure standards for the operation of small water distributions systems without fire protection (e.g. the Mission Ridge Pipelines).Typically, standards involving pressure in small systems, if there are any, will only apply to the design phase. 22. As I have indicated, the governing regulations have changed since the Mission Ridge Pipelines were constructed in 2007 and 2008.EMPA, 2010 replaced EMPA, 2002 and the Waterworks and Sewage Works Regulations, 2015, RRS c E-10.22 Reg 3 (the “2015Regulations”) replaced the 2002 Regulations.

As I stated, the PTO of 2016 was altered to take this change into account.

Section 19 of the 2015 Regulations states that a permittee must design any new, upgraded, altered or extended waterworks inaccordance with the Waterworks Design Standard, EPB 501 (“EPB 501”). This document was authored by the WSA and effectivelyreplaces EPB 201. Like EPB 201, it contains design information and standards for water supply, treatment, storage, and DistributionSystems. 24. EPB 501 specifically states that it does not apply to small rural systems. The Mission Ridge Pipelines, therefore, do not fall underany of the standards as set out in EPB 501. 25.

EPB 501 references another document, the Water Pipeline Design Guidelines, EPB 276 (“EPB 276”). EPB 276 is not adopted bythe 2015 Regulations; it is not a standard, it does not contain requirements for water Distribution Systems, and does not impose anyobligations on permittees. [21] The Applicant believes he executed a contract with Lost River but is unable to produce it. Lost River is alsounable to produce any signed contract with the Applicant.

Therefore, WSA’s application to strike is brought within the context of theApplicant not benefitting from any contractual obligation from Lost River or any water pressure minimum and no regulatory obligationfalling on Lost River or WSA to provide a specified water pressure. Analysis The Applicant is out of time [22] WSA’s first ground to strike the Applicant’s claim is straightforward. It asserts it is statute barred by TheLimitations Act. The dispute arose in 2017 and is reflected in the Applicant’s first claim which commenced in 2019.

The Applicant didnot name WSA as a party until September 2020, well after the statutory limitation period of two years had expired. [23] For good measure, the WSA conjures up the law of England in 1740 (Act of 1740, 13 Geo II, c 18 [Act of 1740])and asserts it is still the law in Saskatchewan and yet is another bar to the relief sought by the Applicant. The debate and historicalreview took place in Bassett v Canada (1987), (SK CA), 35 DLR (4th) 537 (WL) (Sask CA) [Bassett].

In Bassett thedebate revolved around an application for a writ of certiorari, but it would also apply to the Applicant’s desire to obtain mandamus. [24] The Court of Appeal outlines the debate at paragraphs 33 – 36 of Bassett (footnotes and citations not included): 33 The respondent submits that even if this Court has jurisdiction, it ought not to hear the application because it was brought sixmonths after the date of the decision sought to be challenged in contravention of Rule 675 of the Queen's Bench Rules. Historically, anapplication for a writ of certiorari was to have been brought within six months.

Rule 675 of the Rules of Court replaces Rule 11(2) of theCrown Practice Rules. That rule specifically limited the period of time within which one could bring an application for a writ ofcertiorari to six months from the date of judgment, conviction or order. That was altered to provide that an application could be madeafter the six-month time limit if leave was obtained. 34 Rule 11(2) tracked English Order 59, Rule 4(2). The genesis of Rule 11(2) (or English Order 59, Rule 4(2)) was the Act of 1740.The Act of 1740 was repealed in England by the Statute Law Revision Act, 1888 on March 27, 1888.

The Act of 1740 is, however, stillthe law of the Province of Saskatchewan by virtue of The North-West Territories Act, 1886 and The Saskatchewan Act, 1905. 35 Rule 11(2) of the Crown Practice Rules incorporated the statutory time limit found in the Act of 1740. Rule 675(2) of

Part 52 ofthe Rules of Court has amended that statutory time limit. That raises the question of the jurisdiction of the Court of Queen's Bench toalter a statutory time limit by a rule of practice and procedure made pursuant to s. 89 of The Queen's Bench Act, R.S.S. 1978, c. Q-1.Section 89 authorizes the Court of Queen's Bench to make rules of practice and procedure but does not authorize the court to make rulesof a substantive nature. The rule-making power is subject to the same limitations that apply to delegated legislation in any form.

The rulemust be made for a purpose authorized by the enabling legislation in relation to subject matters over which the legislative power is given(Materna v. Materna et al.[ (SK KB), [1983] 3 WWR 725 (Sask QB]). One must decide whether the rule exceeds thejurisdiction or power delegated to the judges of the Court of Queen's Bench by s. 89. If the effect of the rule is to amend a matter ofsubstance rather than procedure, the rule is ultra vires. A rule of court cannot amend a statute (Steen v. Wallace [ (AB

KB), [1937] 3 WWR 654 (Alta Sup Ct)]). 36 The change in the time limits in Rule 675 raises two issues. One deals with the jurisdiction of the Court of Queen's Bench to amendthe time limit contained in the Act of 1740 by a rule of court pursuant to s. 89. The second issue deals with whether the time limit applieswhere the action or proceeding is based on absence of jurisdiction or that the action or act complained of was ultra vires? [25] The Court of Appeal went on to thoroughly review the distinction between the concepts of “substantive andprocedural”.

It determined a time limit is substantive and therefore cannot be changed by a procedural rule in The King’s Bench Rules.As the Act of 1740 required that a certiorari application be brought within six months, the Court ruled against the applicant in Bassett. [26] WSA asserts the situation is identical in this case. Whether the Court relies on the current law or that of ourancient forebears, there is no path to success available to the Applicant. As a result, I would dismiss the Applicant’s claim based on theabove. [27] However, WSA has also advanced other grounds. I would be remiss if I did not address them.

Should the Applicant’s claim be struck under Rule 7-9(1) of The King’s Bench Rules? [28] Rule 7-9 provides: 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court. … [29] In 2013, the Saskatchewan Court of Appeal in Collins v Resort Village of Saskatchewan Beach, 2013 SKCA 12,409 Sask R 57, observed abuse of process is a relatively flexible doctrine that engages the inherent power of a court to prevent the misuseof its procedures. [30] Counsel for the WSA expands on that concept starting at paragraph 40 of his brief: 40.

This Court then expanded on misuses of court procedures in Smail Communications Slide Art Productions Ltd. v Air Sask AviationLtd., (SK QB): For a case to be considered frivolous, vexatious or an abuse of process, the alleged cause of action (here, the counterclaim) must be suchthat no reasonable person could treat it as bona fide and contend that he was entitled to approach the court with such a complaint. 41. It is respectfully submitted that a reasonable person could not treat Mr. Cook’s Claim as bona fide.

As indicated in the ReinhartAffidavit, there are no pressure requirements for the Mission Ridge Distribution System. The underlying premise of Mr. Cook’s Claim istherefore false. Mr. Cook has been made aware of the fact that there are no pressure requirements, yet he continues to seek legalremedies on that basis. Mr. Cook points to EPB 276 as the basis for his Claim – that the Distribution System must meet a certain pressurestandard. As stated in the Applicable Regulatory Framework

section of this Brief, EPB 276 is a guideline and it does not hold each andevery system to a pressure standard. 42. The Reinhart Affidavit sets out that Mr. Cook has repeatedly expressed concerns not only about the pressure within the DistributionSystem, but about the safety of the water as well. However, Mr. Cook’s concerns seem to be based solely on the pressure that he hasallegedly measured within the Distribution System and then compared to EPB 276. Mr. Cook has failed to acknowledge that the safety ofthe water can be monitored despite the lack of regulated pressure requirements.

The PTO requires regular testing to ensure that waterquality issues in the Distribution System do not go unnoticed. The WSA has performed a number of inspections of the DistributionSystem and have not identified any health or safety issues. 43. Mr. Cook has not provided any evidence supporting his allegations that the water being delivered by the Distribution System isunsafe. Mr. Cook has only provided evidence that the water pressure is less than what he thinks it should be, and that he believes anumber of “depressurizations” have occurred. While Mr.

Cook has stated that he has heard opinions from others as to what the pressureshould or should not be and how that may or may not affect the safety of the water, he has not filed any admissible evidence to this

effect. [31] The Applicant comes to court with no one contractually bound to provide him with a Distribution System of acertain pressure, no regulatory framework requiring such pressure and absolutely no evidence of unsafe water. As the Applicant’sapplication for mandamus is preordained to failure, I would find the originating notice an abuse of process and strike it on that ground. Mandamus unavailable to the Applicant [32] Mandamus is a prerogative writ requiring a person or an entity to perform a public legal duty.

The problem theApplicant faces is that the regulatory framework under which WSA operates contains many “mays” and very few “shalls”. The debate isaddressed by counsel for the WSA starting at paragraph 45 of his brief: 45. The WSA’s position is that it is under no legal or statutory duty to perform any of the actions that Mr. Cook is complaining of andso mandamus is not available as a matter of law. 46. Mandamus is one of the traditional prerogative writs, available in the context of judicial review of administrative action. It is adiscretionary remedy and the circumstances in which it is available are well known.

The Saskatchewan Court of Appeal reiterated thewell-known conditions for an order in the nature of mandamus in Dolan v Moose Jaw (City), 2008 SKCA 170: 19 Mandamus is an order issued in the name of the court to compel performance of a public legal duty. It has long been the means bywhich private litigants have required governmental authorities to discharge their obligations. However, that said, mandamus remains adiscretionary remedy and one which is available only in specific circumstances. 20 The parties agree that the prerequisites for an order of mandamus are properly summarized by Laidlaw J.A. in Karavos v.

Torontoand Gillies, (ON CA), [1948] 3 D.L.R. 294 at 297 (Ont. C.A.): ... Before the remedy can be given, the applicant for it must show (1) "a clear, legal right to have the thing sought by it done, anddone in the manner and by the person sought to be coerced": High op. cit., p. 13, art. 9; p. 15, art 10. (2) "The duty whoseperformance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking therelief, and the writ will not lie to compel the doing of

an act which he is not yet under obligation to perform"; ibid., supra, p. 44, art. 36.

(3) That duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office,and concerning which he possesses no discretionary powers": ibid., supra, p. 92, art. 80.

(4) There must be a demand and refusal toperform the act which it is sought to coerce by legal remedy: ibid., supra, p. 18, art. 13. (emphasis added) 47. Mandamus is a judicial writ with the effect of ordering a public authority to perform a certain function. It is only available to compelthe performance of a statutory duty or obligation. 48. Mr. Cook is seeking orders in the nature of mandamus compelling the WSA to carry out the following sections of The WaterSecurity Agency Act, SS 2005, c W-8.1 (the “WSAA”); 53(1)(b), 53(1)(e), 68, 68(3), 69(2)(b), 69(2)(c), and 69(2)(g). These sections ofthe WSAA are included in

Schedule A to this Brief. 49. Mr. Cook is also seeking orders in the nature of mandamus compelling the WSA to carry out the following sections of EMPA,2010: 28(1), 35(1), 35(3), 68, 78(3), and 84. These sections of EMPA, 2010 are included in

Schedule B to this Brief. 50. As a matter of first principles of administrative law, these provisions of the WSAA and EMPA, 2010 cannot possibly give rise to a“statutory duty”, within the meaning of that term as it relates to the availability of mandamus. These sections do not compel the WSA todo anything. Instead, the relevant sections simply state that the WSA may do a number of things, but do not impose any duties orobligations on the WSA.

If the WSA exercises its discretion to undertake certain actions, there may be requirements pertaining to howthose actions are carried out, as in s. 68(3) of the WSAA, but again, there is no obligation to undertake the actions in the first place. 51. The only obligations imposed by the WSAA or EMPA, 2010 in the above sections are on permittees and on individual persons.These obligations do not apply to the WSA as the regulator. 52. Mr. Cook seeks an order compelling the WSA to do something that it has no statutory or legal obligation to do.

As a result, he is notentitled to an order in the nature of mandamus in the circumstances of this case. [33] The Applicant cannot point to a single clear statutory duty underpinning his demand that the WSA take action.Therefore, in addition to the other grounds, the Applicant is fatally offside the rules respecting mandamus.

Consolidation Application [34] The Applicant also brought a notice of application with a view to consolidating this action, with QBG-SA-00348-2019 along with QBG-SA-00824-2021, a statement of claim brought by Lost River and its principal, Robert Risling, against theApplicant and sundry others seeking damages for numerous slights and wrongs. In the end, the consolidation matter was not argued. Ileave the issue of whether if any of the matters move to trial they should be heard together to the trial judge. Conclusion [35] The Applicant’s originating notice for mandamus is dismissed, in full.

WSA shall have their costs under column1. J. R.S. SMITH