Carl King v. City of Kawartha Lakes, 2001 ONAFRAAT 18

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Washington Drain City of Kawartha Lakes

Washington Drain (RE) [Preliminary Decision] 2001 ONAFRAAT 18

STATUTE:

Drainage Act

HEARING:

March 15, 2001

DATE OF DECISION:

March 23, 2001

2001-18

NEUTRAL CITATION:

2001 ONAFRAAT 18

Washington Drain [Preliminary Decision]

City of Kawartha Lakes

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Carl King under Sections 48 and 54 of the Drainage Act from a decision of the Court of Revision and the Engineer’s Report on the Washington Municipal Drain in the Township of Mariposa, City of Kawartha Lakes.

Before:

John Taylor, Vice Chair Jack Young, Vice Chair

Andy Koopal, Member Russell Piper, Member

Appearances:

Paul Courey, counsel to the appellant

Ron Swain, counsel to the respondent

William Turville, counsel to Tampa Farms Ltd., K. Fowler, B.&M. Vandenberg, B. Vandenberg, H. Stoelinga, R.&L. Graham and J.&R. Graham

RULING OF THE TRIBUNAL

A preliminary matter related to this appeal was heard in Oakwood, Ontario on March 15, 2001. Mr. Carl King had appealed under Section 48 and Section 54 of the Drainage Act. Ms. Sandra Lloyd, Acting Clerk, City of Kawartha Lakes performed the duties of the Clerk of the Tribunal.

Some days before the Hearing, Mr. Paul Courey, the legal counsel for Carl King served notice that he intended to bring a motion at the opening of the hearing. This motion was proceeded with. The motion requests the Tribunal to make the following order:

1. An adjournment of the Hearing until a date to be set after June 15, 2001.

2. An examination for discovery by Carl King of Tom Pridham, P. Eng., to be completed by May 1, 2001.

3. Any professional engineer and his agents, qualified to practice in Ontario as a consulting engineer, retained by Mr. King be given the right to enter onto land and carry out an inspection in like manner to an engineer appointed by a municipal council under Section 4 of the Drainage Act, on land which is established as the Washington Drain.

4. Other relief as may be permitted.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the April 28, 2000 engineer’s report on the Washington Drain, City of Kawartha Lakes parties to this hearing.

As the Clerk of the Tribunal on this matter advised that it was not possible to give reasonable notice of Mr. Courey’s motion to all parties to the appeal, Mr. Courey and Mr. Ron Swain, counsel to the respondent agreed that the matter should be heard prior to the commencement of the hearing in this matter, on the date scheduled for the hearing.

Proof was filed with the Tribunal that all parties have been served with notice of this hearing and with notice of the motion to be heard as a preliminary matter.

Mr. Courey told the Tribunal that:

• His client does not believe that there is sufficient outlet and carrying capacity downstream and that the future cost of further work will render this project uneconomical.
• The area of the drain is heavily dependent on ground water, has a shallow water table and good water is required for Mr. King’s cattle.
• An examination of discovery would give him an opportunity to find out what the engineer is not telling him.
• Mr. King wants to retain his own expert to review the information supplied by Mr. Pridham.
• Mr. Pridham had supplied some of the information that the appellant had requested, two weeks before the date of the hearing, but the engineer’s survey notes had not been released.
• He concluded that the municipality and Mr. Pridham want to control the flow of information.
• He suspected that the engineer has a file with survey notes, and other evidence that may be telling as to whether water from this watershed can be safely discharged into the proposed outlet.
• He wanted to prepare his case ahead of time, not during the hearing on this matter.

Mr. Swain told the Tribunal that:

• There was no merit to the request for examination of discovery.
• People in the area required drainage; they had petitioned for it and the municipality responded.
• The appeal of the decision of the Court of Revision was made on June 29, 2000 and Mr. Courey had been retained prior to September 6, 2000.
• Mr. Courey had previously indicated he would be prepared to proceed in mid-February 2001.
• Mr. Pridham had told Mr. Courey that he did not want to release his field notes without confirmation as to what Mr. Courey wanted to use them for. Had Mr. Courey responded to Mr. Pridham, he could have received the survey notes.
• Mr. Courey did not ask for discovery before requesting a Tribunal order to that effect.
• Mr. Courey could have arranged for an engineer to examine the area of the drain in the fall before freeze up.
• He felt that Mr. Courey’s motion for adjournment was a tactic for delaying the hearing.
• The cost of an examination of discovery should be considered.

Mr. Turville told the Tribunal that:

• Mr. Courey appeared to be trying to dictate the order of things to the Tribunal.
• His clients are farmers who need drainage and they wanted to proceed with the appeal.
• The cost of an examination for discovery should be borne by the appellant requesting this examination.

Mr. Courey, Mr. Swain and Mr. Turville all indicated that should the motion for adjournment be granted, it would be their preference that the panel hearing the preliminary motion be seized of the issue. No other party spoke to the issue.

The Tribunal retired to consider the submissions set out above. The Tribunal made a preliminary decision that it would not make an order allowing examinations for discovery of the engineer but would grant an adjournment. The purpose of the adjournment would be to allow the appellant wider access to pre-hearing discovery of documents and other evidence that may be in the possession of the respondent. Before making a final order in that regard, the Tribunal invited Mr. Courey to make submissions that would assist in the Tribunal in identifying what particular documents and evidence that he needed production on.

After a recess, Mr. Courey circulated a list of the documents he wanted the Tribunal to order the engineer to release. He indicated that he would like these documents provided by way of a sworn affidavit of documents. Under the Rules of Civil Procedure this would require that three lists of documents be prepared - documents the engineer has and will produce; documents the engineer has but does not want to release; and documents the engineer had which were destroyed or no longer in his possession.

Mr. Swain and Mr. Turville objected to the broad extent of the documents requested by Mr. Courey. They pointed out that the list far exceeded his original request for information. They categorized the request as a pure “fishing expedition”.

It is to be observed that the current Drainage Act, which has been around for over twenty-five years, is designed so that the Tribunal will generally administer its powers in a summary way. It is only in recent year that Rules of Procedure have been developed under the Statutory Powers and Procedures Act that allow the Tribunal to order examinations for discovery or inspection and discovery of documents. These are discretionary orders and are not obtainable as a matter of right.

The Tribunal believes that an Order for examination of discovery should only be issued under extraordinary circumstances. It did not find that there were extraordinary circumstances in this instance.

The Tribunal finds there is merit in ordering the release of documents in the possession of the engineer to interested parties. However, the Tribunal finds that the amount of information demanded by the appellant exceeds what is reasonable in the circumstances. The Tribunal believes that some of the information requested can be obtained through cross-examination in the normal course of a hearing into this matter.

The Tribunal does not believe it is appropriate to adopt strict court procedures in a quasi-judicial setting. The Tribunal’s practice has been to conduct hearings in an informal manner that does not necessitate the hiring of legal counsel by appellants and other parties to appeals. The Tribunal does not intend to allow its process to be complicated to the extent that landowners affected by a drainage works are inhibited from initiating an appeal.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders that:

1. Within three weeks of the receipt by the Clerk of the Tribunal of this order, the engineer, Mr. Pridham is to release to the appellant’s legal counsel and to other counsel appearing at the hearing, the following documents and material:

• A copy of any minutes of site meetings held in accordance with the Drainage Act regarding the Washington Drain that are in his possession.
• A copy of all engineering survey field notes on the Washington Drain.
• A copy of his calculations showing the volume and rate of flow of water in the drainage channel.
• A copy of the assessment worksheet(s) he used to prepare the assessment schedules in the engineer’s report, dated AP 28, 2000.

2. The engineer is to include a signed accompanying letter certifying that these are true copies of documents in his possession. No affidavit is required.

3. The engineer is to file a copy of these documents with the Clerk of the Tribunal.

4. The Clerk of the Tribunal is to make these documents available to and will copy for any party to this hearing upon request.

5. The hearing into this matter is adjourned and will continue on Tuesday, June 19, 2001 and, if necessary, on Wednesday, June 20, 2001.

6. This or a differently composed panel of the Tribunal may proceed with the hearing.

7. The disposition of costs of this motion and the costs associated with the adjournment of the hearing to another date are reserved to the panel of the Tribunal conducting the hearing.

Dated at Tilbury, Ontario this 23rd day of March, 2001.