ONTARIO DRAINAGE TRIBUNAL
APPEAL:
DOLPHIS-MELOCHE DRAIN (RE) Township of Anderdon Mr. Mike Kosyk, appellant.
DOLPHIS-MELOCHE DRAIN (RE), 1996 ONAFRAAT 22
STATUTE:
Drainage Act
HEARING:
November 15, 1996
November 26, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 22
DOLPHIS-MELOCHE DRAIN TOWNSHIP OF ANDERDON
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal by Mr. Mike Kosyk under Section 5(2) of the Drainage Act, from Council's decision not to appoint an engineer to prepare a report to improve or repair the DOLPHIS-MELOCHE DRAIN, TOWNSHIP OF ANDERDON.
Before:
Mr. Herb Todgham, vice chair; Mr. Andrew Wright, Vice Chair; Mr. Doug Flook, Member.
Appearances:
Mr. Mike Kosyk, appellant. Mr. Paul Courey, counsel to the appellant. Mr. Kirk Walstedt, counsel to the respondent the Township of Anderdon. Mr. Jim Renick, counsel to the respondent the Township of Anderdon.
DECISION OF THE TRIBUNAL
This appeal was heard by the Ontario Drainage Tribunal (the Tribunal) in the council chambers of the Township of Anderdon (the Township) near Amherstburg, Ontario on Friday, November 15, 1996. Mr. David Mailloux, Administrator Clerk of the Township performed the duties of the Clerk of the Tribunal.
Mr. Mike Kosyk appealed to the Tribunal under Section 5(2) of the Drainage Act, from the Township Council's decision not to appoint an engineer to prepare a report to improve or repair the Dolphis-Meloche Drain.
Preliminary Matters
At the beginning of the hearing, Mr. Kirk Walstedt, counsel to the Township, moved to dismiss the appeal since the Township had already appointed an engineer to report on the Dolphis-Meloche Drain. Mr. Walstedt filed with the Tribunal copies of motions of the Township Council appointing Mr. Ed Lafontaine of Lafontaine, Cowie, Buratto & Associates Limited to prepare a report. Mr. Walstedt also filed an affidavit of service of notice on Mr. Courey, counsel for Mr. Kosyk. The notice states that the Township has complied with the requirements of the Act and there is no need for the Tribunal to hold a hearing on the matter. The notice further states that, if the appeal proceeds, the Township will seek full costs for the hearing.
Mr. Courey argued that the Township should not be allowed to wait until the eleventh hour to appoint an engineer and then request that the hearing be cancelled. He said there was nothing to stop the Township from "un-appointing" the engineer. He argued that the Township, for some reason, had been slow in responding to his client's request to improve this drain, and in fact, his client had be requesting work on the drain over a twenty year period without success.
In response to questions from the panel, Mr. Courey said that he wanted the Tribunal to:
1/ Take the process out of the hands of the municipality.
2/ Set aside the appointment of Mr. Lafontaine and appoint someone chosen by the Tribunal.
3/ Impose strict time frames on the Township and order the Township to consider the report within the minimum time limits in the Act and do everything within their power to expedite the report.
Mr. Courey told the Tribunal that, in March 1996, another engineer in the firm of Lafontaine, Cowie, Buratto & Associates Limited had given a written opinion to the Township indicating that while the road culvert was large enough, there is a buildup of sediment and vegetation downstream of it which should be cleaned out. Mr. Courey said that this opinion was flawed in that additional acreage had been added to the drainage area and not included in that opinion.
Mr. Courey told the Tribunal that it had the authority under Section 51 of the Act to order the things done that he requested.
Mr. Walstedt argued that Mr. Courey was attempting to change the nature of the hearing. The notice of hearing deals with the appointment of the engineer and nothing else. He argued that the Tribunal should accept that the Township had appointed the engineer as allowed in the Act, and the rest of the procedures in the Act should now be followed. He said there is no need for the Tribunal to do anything.
The Tribunal recessed to consider the motion and announced that it had come to the conclusion that the appellant is asking the Tribunal to have an engineer appointed and that this has been done. The Tribunal acknowledged that the asking process has been going on for a long time, but in fact, the Township has gone forward and appointed an engineer. The Tribunal stated that it is reluctant to interfere with the actions of the Township at this time. In the opinion of the Tribunal, under the Act, it is up to the Township to carry the ball and get things done. Only when the Township fails to do so should the Tribunal interfere and take control and require the Township to do what it ought to have done. In this instance, although it has taken a long time to do so, the Township has now appointed the engineer. The Tribunal stated that it was reluctant to interfere with the choice of the engineer. The Tribunal agreed with the counsel of the Township that the selected engineer is experienced and well qualified.
The Tribunal asked for assurances of the Township's commitment to proceed expeditiously with the report. Mr. Courey also asked the Tribunal to obtain a commitment to proceed with the maintenance work that had been suggested to the Township by the engineer from Lafontaine, Cowie, Buratto and Associates Limited, in March 1996, and that is not yet done.
After conferring with the Township's Council, Mr. Walstedt confirmed to the Tribunal that the Township intended to proceed expeditiously with adopting the engineer's report. Mr. Walstedt also confirmed that the Council would undertake the maintenance work for 180 meters commencing at the downstream end of the road crossing and proceeding towards the outlet of the drain. This work will be done within the two weeks following the hearing, weather permitting, or as soon thereafter as possible.
Mr. Lafontaine committed to the Tribunal that, weather permitting, he would have his report prepared as soon as possible and, in any event, within the six month period provided in the Act.
Mr. Walstedt made a submission to the Tribunal on costs. He filed with the Tribunal an affidavit indicating that he had served on Mr. Courey notice that the Township had appointed an engineer in response to the request of Mr. Kosyk. The notice indicated that, since the matter had been resolved, there was no need for a hearing and, if Mr. Kosyk insisted on proceeding with the hearing, the Township would ask the Tribunal to award its full costs of preparing for the hearing. Mr. Walstedt filed documents indicating this cost was $5,288.02 and asked the Tribunal to award this cost in favour of the Township.
Mr. Courey argued that any award of costs would be punitive. He said that Mr. Kosyk had been asking for a long time to have work done on the drain. He was told in the spring that maintenance work would be done, and it still has not happened. He said that, based on past experiences, Mr. Kosyk does not have confidence that the Township will do what it is mandated to do under the Act, and it is reasonable for him to conclude that the hearing was necessary to make sure he is protected. Mr. Courey pointed out that in most cases appointment of an engineer in response to a request for a drain improvement is almost automatic by Councils. In this case, Mr. Kosyk has the additional cost of a lawyer and an engineering consultant, and no more costs should be added to him.
The Tribunal conferred on the submissions and decided that it would not award any costs for this hearing. Therefore, it is ordered that:
1/ The appeal is dismissed.
2/ Mr. Lafontaine is to prepare his report as soon as possible.
3/ The Township is to deal with the engineer's report in an expeditious manner.
4/ The Township will carry out maintenance on the drain for 180 meters downstream of the road culvert as soon as possible.
5/ If there are unreasonable delays by either the engineer or the Township, the Tribunal is to be advised.
6/ There be no order as to costs and all parties are responsible for their own costs.
Attention is drawn to Section 73 of the Act.
The reason for this decision is that the Township has appointed an engineer to prepare a report on the Dolphis-Meloche Drain and thereby complied with the Act.
Dated at Chatham, Ontario, this 26th day of November 1996.