Mills Drain (Re), 1995 ONAFRAAT 18

Mills Drain (Re)

Township of Dover

Charles Weaver, Ralph Brodie, Jim Brodie, Ed Tomecek, Murray Jack, Dorothy Fisher, Karl Tomecek, Ewen Ross, William Brodie, Charles Weaver, Doug Good, Daniel Caron, Leigh Blonde, William Korpan and Donald Brown

Mills Drain (Re), 1995 ONAFRAAT 18

Statute: Drainage Act

Hearing: June 15, 1995

Date of Decision: July 27, 1995 for Order August 29, 1995 for Amended Order August 29, 1995 for Reasons

Neutral Citation: 1995 ONAFRAAT 18

Township of Dover

Mills Drain

In the Matter of: The Appeal of Charles Weaver and others from the Report of Enio P. Sullo, P. Eng., dated December 12, 1994, on the Mills Drain, in the Township of Dover, in the County of Kent.

Decision

This Appeal came before the Ontario Drainage Tribunal on June 15, 1995, at the Township of Dover Council Chambers, 515 Grand Avenue West, Chatham, Ontario.

At that time there appeared before the Tribunal, Enio P. Sullo, P. Eng., who prepared and presented the Report dated December 14, 1994; John W. P. Judson, Barrister and Solicitor as Counsel for the Township of Dover; the Appellants, Charles Weaver, Ralph Brodie, Jim Brodie, Ed Tomecek, Murray Jack, Dorothy Fisher, Karl Tomecek, Ewen Ross, William Brodie, Charles Weaver, Doug Good, Daniel Caron, Leigh Blonde, William Korpan and Donald Brown and other assessed owners.

The Clerk of the Township of Dover, M. Dianne Caryn, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

IT IS ORDERED THAT

The Appeal of Phyllis Brodie, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 be dismissed.

IT IS ORDERED THAT

The proposed work of improvement and repair of the Mills Drain from Sta. 0 + 00 to Sta. 3 + 710 remain as part of the Report; however, the work shall not be done until a request in writing is made by an assessed owner or the Drainage Superintendent of the Township of Chatham recommends it.

IT IS ORDERED THAT

The proposed work of improvement and repair on the Mills Drain and the Mcfarlane Drain between Sta. 3 + 710 and Sta. 6 + 110 be proceeded with as proposed in the Report.

IT IS ORDERED THAT

After the work ordered to be done in Paragraph three above is completed and the final cost of the work determined, assessments shall be levied against the lands and roads pursuant to the Schedules of Assessment in the Report and in the same relative proportions except that, the Benefit Assessments levied against lands and roads upstream of the work that is to be done now shall not be considered in determining the pro-rated assessment to be levied against the lands and roads in the watershed.

IT IS ORDERED THAT

The work along the D. & V. Good property, W. Pt. Lot 1, Con. 5, Township of Chatham, Roll #3-001-05, shall be done from the south side of the Drain but the spoil shall be spread over the lands of E. & M. Ross, NW ¼ of the W½ Lot 1, Con. 5, Township of Chatham, Roll #3-002, on the south side of the drain.

IT IS ORDERED THAT

All reasonable attempts be made not to remove any trees in the area of the D. & M. Caron property, E Pt of E½ Lot 3, Con. 4, in the Township of Chatham.

IT IS ORDERED THAT

The account of the Engineer be paid as rendered however, the Engineer shall not be paid for attending at the hearing of the Appeals nor for amending the Report to comply with this Decision.

IT IS ORDERED THAT

There be no Order as to costs and all parties are responsible for their own costs.

Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.

Dated: July 27, 1995

Bernard J. Goodal, Chairperson

Amended Decision

This Appeal came before the Ontario Drainage Tribunal on June 15, 1995, at the Township of Dover Council Chambers, 515 Grand Avenue West, Chatham, Ontario.

The Clerk of the Township of Dover, M. Dianne Caryn, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials filed:

IT IS ORDERED THAT:

The Appeal of Phyllis Brodie, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 be dismissed.

IT IS ORDERED THAT:

IT IS ORDERED THAT:

The proposed work of improvement and repair on the Mills Drain and the McFarlane Drain between Sta. 3 + 710 and Sta. 6 + 110 be proceeded with as proposed in the Report.

IT IS ORDERED THAT:

IT IS ORDERED THAT:

The work along the D. & V. Good property, W. Pt. Lot 1, Con. 5, Township of Chatham, Roll #3-001-05, shall be done from the north side of the Drain, but the spoil shall be spread over the lands of E. & M. Ross, NW ¼ of the W ½ Lot 1, Con. 5, Township of Chatham, Roll #3-002.

IT IS ORDERED THAT:

All reasonable attempts be made not to remove any trees in the area of the D. & M. Caron property, E Pt of E½ Lot 3, Con. 4, in the Township of Chatham.

IT IS ORDERED THAT:

The account of the Engineer be paid as rendered however, the Engineer shall not be paid for attending at the hearing of the Appeals nor for amending the Report to comply with this Decision.

IT IS ORDERED THAT:

There be no Order as to costs and all parties are responsible for their own costs.

Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.

Dated: August 29, 1995

Bernard J. Goodal, Chairperson

Reasons for Decision

This Appeal launched by the Appellant, Charles Weaver and in excess of half of the 50 assessed owners in the Township of Chatham, in a single Notice of Appeal, alleging certain irregularities in the proceeding, excess of jurisdiction of the Engineer, asking for a modification of the proposed drainage works pursuant to s. 48 (l)(b) and appealing their assessment pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on June 15, 1995.

The proceeding was initiated by the Council of the Township of Dover (the first unusual feature of these proceedings) in response to a Notice of Karl Tomecek (the Notice is clearly a remnant of bygone days, when Municipal Drains were constructed under the Municipal Drainage Act and the assessed owners were requesting "honourable bodies" to act on their request). A copy of the Notice is included in the Township of Dover Brief, filed as Exhibit #3 on page 3. Since the extent of the proposed work has been put in issue at this hearing, it is necessary to recite the contents of the Notice:

To the Reeve and Council of the Township of Chatham.

Gentlemen:

I hereby give notice that the Mills start Lot 1 (West Pt) Drain is out of repair and request that your honourable body have the same repaired and improved under the provisions of the Municipal Drainage Act.

Dated at Chatham, this 23rd day of September, 1992

Owner of Lot 3, Con. 5

Signed: "Karl Tomecek"

Council of the Township of Chatham passed the Notice on to their Drainage Superintendent (Brian Anderson) with instructions to work the matter out with the Township of Dover Drainage Superintendent, Donald Reaume. Pursuant to the instructions of Council, Mr. Anderson sent the following letter to Mr. Reaume dated November 27, 1992 (filed in Exhibit #3, at page 4):

Dear Don:

Enclosed is a notice of repair to the Mills Drain. From conversation with Mr. Tomecek, he has indicated the problem with this drain is at the Mills Drain outlet with Pain Court- Creek and further downstream in Dover Township.

Please investigate and advise as to the necessity of the repair and how you wish to proceed. (ie. maintenance or report).

Signed: "Brian Anderson"

Unfortunately, the evidence clearly indicates, and we find that, the "Notice of Repair" was not enclosed as stated in the letter. The evidence also discloses that this letter was passed on to the appointed Engineer without the enclosed "Notice of Repair". This is the second significant irregularity in the proceedinqs.

Almost two years passed while "the honourable bodies" of the Township of Chatham and the Township of Dover contemplated the request and deciding how to proceed. Finally, on June 6, 1994, the Council of the Township of Dover passed a Resolution "That .... Mr. Enio Sulla, P. Eng., Sulla & Associates be appointed under Section 78 (1) re: Mills Drain ". There were no other instructions in the letter of appointment.

Mr. Sulla acknowledged his appointment by Council in a letter of July 20, 1994 and in the fulfillment of his duties as the appointed Engineer instructed the Clerk of the Township of Dover to send Notices to all assessed owners of an on-site meeting to be held on August 17, 1994. Of the more than 60 assessed owners, only nine attended the on-site meeting, including Karl Tomecek. The list of those that attended the on-site meeting is attached as Schedule "A" in the Engineer's Report dated December 12, 1994, filed as Exhibit #2. The notes of Mr. Sulla made at the on-site meeting have been filed as Exhibit #4. On the issue before us the notes read as follows:

"Stated that I would survey the entire drain down to McFarlane and make report - will all have opportunity to review Report at Council ... reported that Petition for Drainage signed by M. Tomecek".

In his evidence, the Engineer stated that he had the impression that all who attended the on-site meeting agreed that the entire Mills Drain should be examined (surveyed).

The survey work was done between October 6 and October 14, 1994. The Engineer spoke to many of the assessed owners, and no one complained to the Engineer that he was surveying the entire Mills Drain. The Report was filed on December 13, 1994. It was considered by Council on January 23, 1995. At the consideration meeting, the evidence and the Minutes indicate that there were a number of suggestions as to what should be done and how it should be done; however, there were no specific objections to the extent of the proposed work. That is, no one specifically complained that the work should not be done on the entire Mills Drain.

The Court of Revision was held on February 13, 1995. Mr. Brodie, a member of the Township of Chatham Council, the spouse of Phyllis Brodie, an Appellant to the Court of Revision, was the representative on the Court from the Township of Chatham. Mr. Brodie informed the Court that the Clerk of the Township of Chatham had not sent the Notices out for the Court of Revision. A motion was made that, "The Court of Revision be adjourned and the third reading of the by-law deferred," to give the Clerk of the Township of Chatham an opportunity to notify the assessed owners of the rescheduled Court to March 6, 1995.

At the reconvened Court of Revision on March 6, 1995, the Clerk of the Township of Dover informed the Court that there were no verbal or written objections received at the Township of Dover office. Mr. Ralph Brodie was once again present as the representative of the Court of Revision from the Township of Chatham. Eleven assessed owners were also present. There was a written appeal submitted by Phyllis Brodie with respect to the assessment levied against her lands. A number of the assessed owners from the Township of Chatham complained that they had not received a Report in the mail. It appears as though Mr. Clackett questioned the extent of the work and surveying as it pertained to the top portion of the drain along the 5^th Con. Road. His main concern was the loss of land that he may suffer by the improvement. It was the opinion of Mr. Brodie that the Court should consider both concerns over the cost and extent of the work outlined in the Report. Mr. Cummings, the Chairman of the Court, expressed the view that the Court of Revision was to handle issues raised over assessment and costs and that the other issues raised are primarily within the jurisdiction of the Ontario Drainage Tribunal. A motion was then made to give a third reading to the by-law which was carried.

At the Council meeting of April 18, 1995, the Clerk reminded Council that only the Court of Revision not Council had given a third reading to the by-law. In the preamble to the motion for a third reading by Council, it is recited that the Township of Dover was notified by the Township of Chatham, that in the event of an Appeal, it would be prudent to commence the entire process over again with a newly appointed member of the Court of Revision for the Township of Chatham. The Council of the Township of Dover passed a Resolution "That third and final passage not be granted to the By-law"; and that, "in the event the Appeals are accepted by the Ontario Drainage Tribunal to proceed to a hearing; the Tribunal be requested to review the associated Engineering fees and that a copy of this Resolution be forwarded to the Ontario Drainage Tribunal etc".

The Court of Revision dismissed the assessment Appeal of Phyllis Brodie.

The records indicate that the Mills Drain was last improved and repaired pursuant to a Report of D.G. McGeorge, P. Eng., in 1988. Pursuant to the Report, the reach of the drains across Lots 1, 2 and 3, Con. 4, Township of Chatham (1,600 m) was moved off the road allowance onto private properties to the south. Pursuant to the Report of Donald D. McGeorge, P. Eng., in 1971 the Drain was cleaned between the 5^th Con. Road of the Township of Chatham (at the junction of Pain Court Creek Drain) and Baldoon Road, in the Township of Dover (at the outlet of the Mills Drain into the McFarlane Relief Drain). It appears as though the upper reach of the Mills Drain had not been repaired since 1961 pursuant to a Report of W.G. McGeorge, P. Eng.

As we had already stated, following the on-site meeting the Engineer had the impression that all of those present agreed that he should survey and inspect the entire Mills Drain from its upstream end in Lot 6, Con. 4, Township of Chatham to its outlet at the McFarlane Relief Drain B.D.E., Con. 5, Township of Dover (5,815 m). The Engineer carried the inspection and survey downstream along the upper reach of the McFarlane Relief Drain from the outlet of the Mills Drain to the 4th Con. Road (895 m).

The survey and inspection disclosed that the upstream reach of the drain is choked with sediment and overgrown with brush which is restricting flow. The 1,600 m of the drain which was moved off the road allowance in 1988, is relatively free of obstructions and sediment. The downstream reach is also choked with sediment and occasional brush in the drain in the Township of Dover. There is a wire fence stretched across the drain, constituting an obstruction in it. Livestock and waterfowl are using the drain. In the opinion of the Engineer, it is necessary to clean out the McFarlane Drain over a reach of approximately 900m of its upstream end to provide a sufficient outlet for the Mills Drain.

The Report recommends that the entire Mills Drain and 900 m of the McFarlane Drain be brushed and cleaned as provided by the plans, profiles and specifications in the Report. The total estimated cost of the work is $49,918.00. The cost of the Engineering services provided by the Engineer was estimated at $8,900.00. He has rendered an account to the Township in the sum of $8,704.50 (December 31, 1994).

All of the Appellants are assessed owners from the Township of Chatham. Phyllis Brodie appeals from the Decision of the Court of Revision. For all of the Appellants, although the Notice of Appeal of April 11, 1995 list the grounds of Appeal under six heads, the primary issue put before us is, that the work recommended by the Engineer to be done should only be done on that portion of the drain and the McFarlane Drain downstream of Sta. 3 + 710 that is, where the Mills Drain crosses the 5^th Con. Road and the Pain Court Creek Drain outlets into the Mills Drain.

We will first consider the Appeal of Phyllis Brodie pursuant to s. 54 (1) of the Act.

Mr. Ralph Brodie as agent for Phyllis Brodie, submitted the Appeal of his spouse from the Court of Revision. He has raised the issue that he is raising before us, before the Courts of Revision and in 1983 before the Tribunal in his Appeal of the assessment levied against his spouse's lands both on the Mills Drain and on the Pain Court Creek Drain. His Appeals before the Courts of Revision and the Tribunal were dismissed.

He contends that the affected area in this Report and the previous Reports is not right. Since 1981, he has tried to get the error corrected. In spite of the Decisions of the previous Courts of Revision and the Tribunal, he has urged upon us that we should reduce the affected areas of the two parcels owned by his wife by not less than 50%. He tendered no evidence of any measurements that he had made, nor of any specific observations of the watershed boundary. Nor did he propose a specific location for the watershed boundary. He mentioned that he had a plan which would show that the affected areas are wrong, however, he was not prepared to tender it in evidence since a plan which he had tendered to the Tribunal at the last hearing was not returned to him.

This matter having been considered by the Tribunal in two previous Appeals, together with the fact that the evidence before us falls far short on which we could base a readjustment of the boundary, the Appeal must be dismissed.

Mr. Brodie did point to an apparent error in the Report. He noted that the lands of E.P. Gregory, W ½ Lot 10, Con. 3, immediately downstream of his wife's lands with an affected area of 24.28 ha have been assessed the same outlet assessment as the lands of his wife with an affected area of 24.14 ha; that is, the sum of $476.00. The assessment being based on a unit assessment of $19.44 per/ha for the difference in area of 0.14 ha, the assessment against the Gregory lands should be $2.44 more. The submission appears to be correct. This however, is so small that it is not expedient nor reasonable to order an amendment to the Report.

The curious aspect of this proceeding is: why is the Township of Dover the initiating Municipality in the circumstances? The Notice that the drain was out of repair was filed by an assessed owner in the Township of Chatham. The reach of the drain alleged to be out of repair is in part in the Township of Chatham. Then why did the Township of Chatham foward the Notice to the Township of Dover? It is our view that the Township of Chatham should have had its Drainage Superintendent decide on the validity of the allegation. If he decided that the allegation had substance and that work needed to be done in the Township of Chatham, he could either proceed under s. 74 to do it, to the extent that the drain lies in the Township of Chatham; or, if he felt that it was work beyond s. 74 (maintenance and repair), the Township of Chatham should have appointed an Engineer under s. 78 to investigate the allegations.

If the Drainage Superintendent for the Township of Chatham proceeded under s. 74, and it was his view that work had to be carried into the Township of Dover, he then could have contacted the Drainage Superintendent of the Township of Dover and have him consider the allegation as it applied to that reach of the drain in the Township of Dover.

The options of the Township of Dover Drainage Superintendent would be the same as that of the Township of Chatham.

The Engineer, in his evidence, clearly pointed out that this Report recommends no improvement to the drain, merely a maintenance and repair or as it is commonly called, a cleanout. This work could have been done under s. 74 of the Act and it appears to us that the most expedient and cost-efficient way to do it would have been under s. 74 without incurring the engineering and other expenses which have been incurred by proceeding under s. 78. It is difficult for us to understand how two Municipalities, which have been involved for many years in drainage works done under the Drainage Act and its predecessor, would carry out these proceedings in the manner that they did.

Part of the responsibility for the miscarriage of these proceedings must be put on the Engineer. We find, from the evidence, that the Engineer did not see a copy of the "Notice of Repair" until the day of this hearing. We further find that the Engineer did state at the on-site meeting that he would survey the entire Mills Drain. We further find that there was no specific objection to that proposal at the time nor at the consideration meeting. There appears to have been some objection to doing the work on the entire drain at the Court of Revision on March 6, 1995. However, basically, a specific objection was not raised until the Notice of Appeal was filed (it is rather ambiguous) and the hearing of this Appeal.

In spite of these findings, in our view, there is a duty on the Engineer to get a copy of the Petition, if the proceeding is commenced by a Petition, or of the complaint and instructions, if the proceeding is initiated under s. 78 of the Act and have them in his possession prior to the on-site meeting to ensure that they are clear and he has full comprehension of what he is being instructed to do. This the Engineer failed to do. We have found in a number of instances, the Engineer proceeded with his instructions, and in some cases not having seen the Petition or the instructions before the on-site meeting and in a few cases not until his attendance at the hearing of the appeal. This is clearly a dereliction of the Engineer's duty under the Act. The Engineer is charged, when the proceeding is commenced by a Petition, to determine whether the Petition complies with s. 4 of the Act. Since the proceeding commenced under s. 78 of the Act, "Shall be the same as on a Report for the Construction of the Drainage Works"; that is, under s. 4 of the Act, the same duty devolves upon the Engineer in a proceeding commenced under s. 78 of the Act as a proceeding commenced by a Petition.

Furthermore, the Engineer should have been alerted to a possible irregularity in the proceedings from the fact that the initiating Municipality, Township of Dover, was instructing an Engineer to go upstream out of their Municipality to investigate a drain in the Township of Chatham. There is no authority or jurisdiction in a downstream Municipality investigating or recommending doing any work on a drain in an upstream Municipality. In the matter before us, the Engineer had failed to realize this. In the circumstances, even though there were no objections to the extension of the work upstream, in our view, the Engineer should not have extended the work upstream without being appointed by the Township of Chatham and having specific instructions to do so. Therefore, he bears some of the responsibility for this miscarried proceeding.

The assessed owners do not come to this hearing with clean hands either. The evidence is quite clear that the extension of the work upstream was not specifically objected to. There is nothing before us to indicate why this issue of the upstream extension had not been raised sooner. As we have already stated, some comments were made about it; however, nobody specifically objected to it until this hearing. In other words, they permitted this proceeding to proceed with full knowledge of the extent of the work to the point of the Appeal. Therefore, the assessed owners must also bear some of the responsibility for the additional cost incurred as a result.

At the hearing, Mr. Sullo agreed to delete from the Report that portion of the proposed work upstream of Sta. 3 + 710. It seems to us, that is not the way to resolve the issue before us. An order such as that would be entirely nonproductive. We are of the view that in order that the costs incurred be not entirely thrown away, the proposed work of improvement and repair of the Mills Drain from Sta. 0+00 to Sta. 3+710 remain as part of the Report. However, that part of the work shall not be done until a request in writing is made by an assessed owner to have the work done or the Drainage Superintendent of the Township of Chatham recommends that the work be done. When Council of the Township of Chatham receives such a request, or the Drainage Superintendent recommends it, it can then consider it and direct whether the work shall proceed or not. If the work in fact does proceed, it must proceed as provided for in the Report.

The work downstream of Sta. 3+710 to Sta. 6+110 is work that is required in response to the Notice served on the Township of Chatham by Karl Tomecek. It shall proceed as proposed in the Report.

After the work that is to be done now is completed and the final costs of the work have been determined, assessments shall be levied against the lands and roads pursuant to the Schedule of Assessment in the Report and in the same relative proportions except that, the Benefit Assessments levied against lands and roads upstream of the work that is to be done now shall not be considered in determining the pro-rated assessments to be levied against the lands and roads in the watershed.

Perhaps it need not be mentioned, however, in order to dispel any ambiguity, allowances as provided for in the Report shall not be paid to owners of lands upstream of the work that is to be done now. If and when the work upstream is done in the future, the allowances provided for in the Report shall be paid to the abutting landowners along the reach over which the work is done.

The Engineer shall make whatever amendments are required to be made to the Report to comply with this Decision without compensation nor is he to be compensated for attending at the hearing of the Appeal.

At the hearing, the Engineer agreed to Mr. Good's request (owner of W Pt Lot 1, Con. .5, Roll #3-001-05) that the work to be done on the drain shall not be done from his property. It shall be done from the north side of the drain, and the spoil shall be spread over the lands of E. & M. Ross, NW ¼ of the W½ Lot 1, Con. 5, Township of Chatham, Roll #3-002.

Mr. Daniel Caron, owner of the E Pt E½ Lot 3, Con. 4, Roll #1-979, objected to any trees being removed from the drain or the drain bank next to his barn. The evidence indicated that the barn has been built right on the bank of the drain, and there is danger that it will fall in if the trees are removed. The Engineer takes the position that the drain had been there well before the barn was constructed, and consequently, if the owner wanted to construct the barn that close to the drain, he must suffer any consequences as a result of maintaining and improving the drain. However, he conceded that if at all possible, and if in fact the trees do not interfere with the flow of water within the drain, they will not be removed. However, if they do, there is a duty to remove them as obstructions.

Mr. Todgham pointed out to the Engineer, that he failed to comply with the Act, in that he did not apportion the costs of the work that was to be done between the two Townships. Mr. Sulla indicated that, the cost of the work to be done in the Township of Chatham is $19,500.00 and the costs to be done in the Township of Dover is $15,500.00, for a total construction cost of $35,000.00.

Following the noon break, Mr. Sullo made a motion to have Mr. Judson, Counsel for the Township, removed as Counsel because, as Mr. Sullo put it, he is adverse in interest.

At the opening of the hearing, Mr. Judson identified himself as Counsel for the Township of Dover. As the hearing progressed and in the course of his cross-examination, Mr. Judson was eliciting evidence to advance the position of his client the Township of Dover. However, some of that evidence undermined the authority or the recommendation in the Report to do work on the entire drain. As is common in the Appeals before the Tribunal, Counsel acting for the Township is also identified with the Engineer since the Township is the Engineer's client. Therefore, Mr. Sullo felt that Mr. Judson was also Counsel for him. Because the Township is Mr. Sullo's client. Mr. Sulla submits that if Mr. Judson elicits evidence which undermines the recommendations that he has made, then he is adverse to him and to the position he has taken and the Township has adopted. On the basis of that, he concludes that Mr. Judson has no status since there is no appeal by the Township. As he put it, we are on the same side, and he should be there to help me, not hinder me.

Mr. Judson made it quite clear at the beginning that he was Counsel for the Township. Obviously, the statement would go by and without any particular attention being paid to it by Mr. Sulla, since this is a statement commonly made by Counsel appearing in the proceedings on behalf of the Township. When Mr. Sullo raised his objection, Mr. Judson replied that he was there to protect the interest of the Township and not necessarily as Counsel for the Engineer.

We cannot accede to Mr. Sulla's request to have Mr. Judson removed as Counsel for the Township. The Township is entitled to Counsel inspite of the misunderstanding as to whether or not he is also Counsel for the Engineer. It may have come as a surprise to Mr. Sullo, and we can understand that. We therefore dismissed the motion made by Mr. Sulla that Mr. Judson be removed as Counsel for anyone in the hearing. We directed that the hearing proceed, giving Mr. Sulla every opportunity to present all the evidence that he wished and the opportunity to cross-examine witnesses and make final argument and submission. Mr. Sullo did not ask for an adjournment so that he could retain Counsel or consult Counsel before proceeding with the hearing.

Although the Township had mildly hinted at the review of the Engineer's account, it did not specifically request it at the hearing, nor did it lead any evidence with respect to it. The only thing available to us is the statement of account of the Engineer included in Exhibit #3 on pages 7 and 8. We have no other particulars on which to assess that account. Consequently, we will not disturb it.

There will be no Order as to costs, and all parties are responsible for their own costs.

Dated: August 29, 1995

Judy Clark, panel member

H.H. Todgham, P. Eng., Vice-Chairperson

Bernard J. Goodal, Chairperson