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) 2001 ONAFRAAT 50

STATUTE:

Drainage Act

HEARING:

June 19 and September 18, 2001

DATE OF DECISION:

October 22, 2001

2001-50

NEUTRAL CITATION:

2001 ONAFRAAT 50

Washington Drain

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 former Township of Mariposa, City of Kawartha Lakes.

Before:

Andrew Osyany, Vice Chair Andy Koopal, Member

Jack Young, Vice Chair Russ Piper, Member

Appearances:

Paul Courey, counsel to Mr. Carl King

R. J. Swain, counsel to the City of Kawartha Lakes

Valerie M’Garry, counsel to City of Kawartha Lakes

William Turville, counsel to Tampa Farms Ltd., K. Fowler, B.&M. Vandenberg, B. Vandenberg,

H. Stoelinga, R. Graham, F.&R. Graham, J.&R. Graham, Oakwood Agromart Ltd., 1035485 Ontario Ltd., G. Butterworth et al., J. Everson, J. Garland, J.&J. Hickson and

J. Hickson

Tom Pridham, P. Eng. for R.J. Burnside & Associates Limited

Adrian Brouwer, assessed landowner

Terry Parker, Tampa Bay Farms, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in the Municipal Offices of the former Township of Mariposa, Oakwood, Ontario commencing on June 19, 2001 and continuing in the Oakwood Community Centre, Oakwood Ontario on September 18, 2001. Mr. Carl King appealed under Section 48 and Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision and the report by R. J. Burnside & Associates Limited dated April 28, 2000 on the Washington Drain in the Township of Mariposa. The Township of Mariposa was encompassed in the City of Kawartha Lakes (the Municipality) on January 1, 2001.

Ms. Debbie Ball, Clerk (acting), and Ms. Sandra Lloyd, CAO/Clerk, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Washington Drain parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing, and the continuation of the hearing.

Statutory Context

Section 48 of the Act states:

48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

48(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, chap. D.17, s. 48.

Section 54 of the Act states:

54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

54(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

54(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, chap. D17, s. 54.

The Background

The Washington Drain has a total watershed of about 1,600 acres, of which about 500 acres are tile drained or will be tile drained. It is an open channel drain, with its outlet on the East Side of the Townline with Ops Township. The soils in the watershed are primarily Simcoe Clay and Smithfield Clay Loam with portions of muck near the lower end. The area has been communally drained since 1907; initially by way of an award drain. The last improvement on the Washington drain was under a 1977 engineer’s report.

The report in this case was prepared pursuant to Sections 4 and 78 of the Act. There were two petitions and the existing drain was also out of repair. R.J. Burnside & Associates Limited were appointed as engineers and Mr. Tom Pridham, P. Eng. was designated by the firm. The report details the proposed repair and improvement of the Washington Drain and the construction of two new branch drains.

The report designates the existing drain as ‘A’ Drain, a new open branch as ‘B’ Drain and a new tile branch as ‘C’ Drain. A small tile branch constructed pursuant to the 1977 report is designated as ‘D’ Drain.

The report provides for:

• 4,465 metres of Open Drain clean-out plus related appurtenances

• the installation of a twin cell culvert on Skyline Road at Lot 23

• the relocation of the drain off the road allowance (Skyline Road) into Lot 23, Con. 9

• the installation of 136 metres of closed drain (‘C’ Drain) designed to provide a coefficient of 12.7 mm/24 hrs. (1/2 in/24 hours). The tile sizes required vary from 300 mm diameter (12 in.) to 400 mm diameter (16 in.)

The estimated cost of the proposed work is $91,500.00.

The Issues

Mr. Carl King has appealed to the Tribunal and his appellant’s statement identified the following issues:

1. Are the assessments as proposed by the Engineer’s Report, and upheld by the Court of Revision, appropriate?

2. Are the allowances proposed by the Engineer’s Report appropriate?

3. Is the construction of the drain warranted given the projected cost of the drainage works and the anticipated benefits of the drainage works?

4. Should the design of the drain be altered due to concerns about water quality, water table, wells and/or fish habitat?

The proceedings, as they unfolded, raised a number of additional issues, and they will be dealt with after the consideration of the substantive issues.

Hearing Sequence

There was a pre-hearing in this matter on March 15, 2001. The actual hearings commenced on June 19, 2001 and were then adjourned to September 18, 2001, with the evidence on the substantive issued being heard on September 18, 2001. The sequence of events will be dealt with more fully later in this decision, after dealing with the substantive issues.

The Evidence and the Findings on the Substantive Issues

Appellant

Mr. Courey indicated that his client did not submit to the jurisdiction of the Tribunal in this matter and he did not intend to call any witnesses. He confirmed that the appeal was not withdrawn.

Tom Pridham, P. Eng.

Mr. Pridham first gave a background on the drain and then explained how he worked out the assessments.

He assessed special benefits to Skyline Road for the installation of twin culverts and the relocation of the drain off the road allowance, and to the property owned by A.&B. Brouwer (Roll No. 30-378-00) for stripping and replacing topsoil.

He said that after deducting special benefits, the balance of the estimated cost of the work on ‘A’ Drain, $48,250, was allocated over land in the watershed using a 60:40 statutory benefit: outlet liability ratio. He explained that the statutory benefit assessment was high, as allowances were high. He said that the appellant, Carl King, was not assessed on ‘B’ Drain or ‘C’ Drain.

Mr. Pridham testified that he assessed statutory benefit on ‘A’ Drain primarily on a per metre basis, based on the length of the drain on the affected properties. He said that the appellant, Mr. King, was assessed $750 as a statutory benefit, which he considered a minor benefit. He indicated he believed this assessment was warranted as the King property (Roll No. 30-375-00) and its tile drain would receive an improved outlet. He said the appellant’s assessment was somewhat similar to that of the Stoelinga property (Roll No. 30-329-00) and that of Skyline Road.

Mr. Pridham testified that he assessed outlet liability on a per hectare basis, and that he increased the rates between the outlet and the upstream properties, as properties near the top of the drain use a greater length of the drain than those near the outlet of the drain. He said he applied mark-up rates ranging from 3 x on farmland to 20 x on roads in the watershed, but that he applied no mark-up rate to an unopened road allowance. He said he applied a mark-up of 3 x on farmland to two properties which had grain elevators on them but that he later adjusted the assessments on these properties downward. Mr. Pridham said that he also charged $5/ha for administration plus 1/100^th chainage. He explained that outlet liability is applied according to where the drain leaves each property.

Mr. Pridham compared the outlet liability assessment on the King property to the outlet liability assessments on the Tampa Farms Ltd. property (Roll No. 30-376-00) and the J. Everson property (Roll No. 30-315-00) and indicated that he believed he used realistic numbers and treated the appellant equitably. He said that it would be unreasonable to assess no costs to the King property.

With regard to the allowances granted in the engineer’s report, Mr. Pridham said:

• He granted an allowance for land use at the rate of $1000/acre where land was required for widening or construction of the drain.

• Crop damage allowances were calculated using a 10 metre working width and a rate of $500/acre.

• He reduced the damage allowance to the Brouwer property allowance by 50% as the topsoil was to be stripped and replaced.

• He reduced the damage allowance to two other properties as the area where fill is it to be spread on those properties is marginal.

• He granted a $50 damage allowance to the Tampa Farms Ltd property for the installation of a catch basin.

• There was an allowance granted to the K. Fowler property (Roll No. 30-327-00) for tile work on ‘C’ Drain.

Mr. Pridham said he had re-checked his mathematical calculations and found no errors. Mr. Pridham indicated he was unsure of the exact nature of the complaint regarding allowances but that he had used commonly accepted principles in establishing the allowances.

With regard to whether or not the benefit to be gained by the drainage works was commensurate with the costs, Mr. Pridham told the Tribunal:

• There are approximately 1600 acres in the watershed, of which 350 acres are under-drained and 150 acres are to be tiled. These figures do not include 80 acres of tiled land on the Brouwer property.

• Additional lands in the watershed may be tiled.

• He used a fact sheet prepared by Ross Irwin and revised in 2000, which used crop insurance data to evaluate the economic value of drainage.

• A $50/acre gain in value due to drainage of lands is a conservative estimate.

• Using an estimated cost of $91,500 for the proposed drainage works, plus $75,000 for extra under-drainage anticipated, and a $50/acre gain in value due to drainage he calculated a net economic gain of $7,500.

• There were additional benefits to draining agricultural land. He submitted an Ontario Ministry of Agriculture and Food fact sheet by Ross Irwin to support this argument.

• A report by Sid Vander Veen, Drainage Coordinator, Ontario Ministry of Agriculture, Food and Rural Affair indicated the average unit cost per ha of drains constructed in Ontario is approximately $250/ha. This project was estimated to cost $140/ha.

• Landowners in the watershed had a substantial investment in tile drainage that needed to be protected.

Mr. Pridham told the Tribunal the proposed drainage works would have no significant impact on the water table or wells. He pointed out that the majority of the work proposed in the engineer’s report is maintenance work. He also indicated that:

• If shale is encountered it will be removed without blasting.

• Problems with the well on the King property are not related to the Washington Drain.

• There is a large pond on the King property that could be used by livestock in dry times.

• Water quality downstream of the proposed work will not be negatively impacted; but there may be some disruption during the construction phase.

• He can accommodate a request by representatives of the Kawartha Region Conservation Authority and the Department of Fisheries and Oceans (DFO) to put a meander pattern in the drain if it is re-located off the Skyway Road road allowance. This deviates from standard practice but drainage needs can be met with a meander pattern.

• Other measures requested by the DFO representative can also be accommodated.

• He believed that water quality and fish habitat would be improved as a result of the implementation of the engineer’s report as surface erosion would be decreased.

• Approval for the proposed work was received from the Kawartha Region Conservation Authority on March 16, 2001. That approval was amended on June 18, 2001.

• The site was inspected by representatives of the DFO on July 5, 2001 and on a subsequent date and it was confirmed that the drain is a Class C warm water waterway.

• DFO approval of the drainage works is pending.

Mr. Pridham advised that he had been a full time drainage engineer for 20 years. He worked primarily on drainage matters and he had authored nine engineer’s reports on drains in the former Township of Mariposa. He said that he had not reviewed the reports he referenced at the Hearing before writing the Washington Drain report, but that he had general knowledge of their existence.

Ms. M’Garry asked that Mr. Pridham be accepted as an expert witness. Mr. Courey objected as he pointed out that Mr. Pridham had given evidence on well water and fish habitat. The Tribunal accepted Mr. Pridham as an expert in the context of his curriculum vitae as an expert on sufficient outlet, because each project that he designs has to be taken to a sufficient outlet.

In Mr. Pridham’s opinion the work had been taken to a sufficient outlet. He explained that there would be no extra flow through the Washington Drain as the work was re-routing water that is already entering the Drain. He said that a culvert that was designed for a 10-year flow would flood over the top of the road if the area receives excessive rainfall, regardless of whether or not the proposed work is undertaken. He said it was his opinion that there would be no adverse effect on the Brouwer property as result of the proposed work.

Mr. Pridham filed Exihibit 16, a massive compilation of the work that he had done and reports and authorities that he had relied on.

Scott MacNeill, Kawartha Region Conservation Authority

Mr. Scott MacNeill told the Tribunal he was a Fisheries Officer with both the Ganawaska and the Kawartha Region conservation authorities. He said he assessed the Washington Drain and determined it was a Class C warm water drain with baitfish. He said that he conveyed general concerns for this type of drain, which are pre-specified by the DFO, to Mr. Pridham. These included a timing restriction on when work may be done due to spawning concerns and a concern about ditch side stabilization. He explained that he initially approved the drainage works as a Class C project, with specific conditions and that he was later asked to investigate further. He said he recommended the drain be approved, but that the DFO is the authority which must give final approval. He said the DFO generally accepts his recommendation.

Mr. MacNeill said that there may be suckers in the Washington Drain in the spring but that there is no white sucker spawning habitat in the drain. He said he shocked the whole system with a representative of the DFO in July 2001 and they found no suckers. He said he had walked on site three times and walked the entire length of the drain on two of those occasions.

Terry Parker, Tampa Farms Ltd., Assessed Landowner

Mr. Terry Parker indicated he had an interest in Tampa Farms, that he actively worked in the company and that Tampa Farms owns slightly more than 1000 acres of land and that it farmed approximately the same amount in contract work. He said he had a Diploma in Agriculture from the University of Guelph. Mr. Parker explained that approximately 270 acres of Tampa Farms Ltd. property was in the Washington Drain watershed. He said the company spent approximately $75,000 on tile drainage on that acreage. He said that Tampa Farms Ltd wanted maintenance of the existing drain and an improved outlet by Skyline Road. He said that the tiles were not working as well as they could and he was concerned that they would become clogged due to the delay of the drainage project. He said the net cost of the proposed work to Tampa Farms Ltd. is $10,000.

Adrian Brouwer, Assessed Landowner

Mr. Adrian Brouwer testified that he was concerned with the impact that the proposed work would have on water quality. He said there had been silting problems as proper traps were not installed when previous work was done near Skyline Road, but that he had been told that the traps will be installed in this project. Mr. Brouwer said he was also concerned about fish habitat.

Mr. Brouwer said he was also concerned that additional water flowing through the Drain would erode the sides, which are loam. He expressed the concern that when the flow is increased the culvert will not take all the water through and his basement would flood. He said the basement had flooded in the past even though it is at level of the road. He confirmed that he did have approval to build the house.

Mr. Brouwer said he knew the drain was to have a meander pattern and he was concerned that he has to pay for it. He said that he definitely supports the environment and thinks there should be mandatory 15 m buffer strips on municipal drains and that these should be maintained to prevent erosion.

Findings on the Substantive Issues

The Tribunal accepts the engineer’s evidence. The Tribunal’s finding of facts are that the maintenance and repair work on the Washington Drain are clearly required to be done. The Municipality has a statutory duty to carry them out and the statute also requires an engineer’s report. The Tribunal further finds that the engineer has complied with his statutory duties in connection with the repair and improvement of the Washington Drain. The Tribunal further finds that the engineer has complied with his statutory duties in regard to the work on the two petitions, and that all the work should go ahead. The benefit-cost analysis proves that the proposed work meets the statutory criteria. There is no need for alteration or modification of the proposed work to meet any of the concerns raised in Mr. King’s appellant statement.

The Tribunal further finds that the engineer has used generally accepted principles in calculating the allowances and the assessments, and that the work has been done fairly to all the assessed owners.

The evidence presented by the engineer is overwhelming and there is no merit to the appeal by Mr. King. The appeal by Mr. King on the substantive issues is dismissed.

Other issues – Procedure & Jurisdiction

The proceedings raised a number of other issues as well. By way of overview, the Tribunal wishes to quote from a decision of the Drainage Referee O’Brien, Campbell v. Mariposa, October 20, 2000:

Within the vortex of all the above-mentioned conflicting interests, the drainage process is challenged to find a satisfactory resolution suitable to all. It is my opinion that the Drainage Act is up to the challenge and is capable of addressing all the conflicting issues in a satisfactory manner. The Drainage Act is a historic document and has survived largely unchanged through the decades adjusting to technological changes over the years without the need for radical amendment. This is because there are four cornerstones on which the Drainage Act rests, namely:

(a) It is enabling legislation that permits a single landowner (farmer) who is a minority landowner, often downstream, to compel his or her upstream neighbours to assist in a drainage project for which they must pay their fair share of the cost to relieve him or her of the burden of their unwanted water. The farmer may be outvoted by his or her neighbours, unsupported by municipal council, but by means of the various appeals which is the genius of the Drainage Act he or she has the instrument to affect drainage schemes because his or her land is "the area requiring drainage".

(b) The second essential cornerstone of the Drainage Act is the requirement for a professional Drainage Engineer. The Act requires that all schemes be designed by a professional Engineer and the financial burden of this requirement is relieved by the l/3 Provincial Government Grant.

Such critical decisions as determining the area requiring drainage, the design of the work and the assessment schedule are the prerogatives of the Drainage Engineer. A coterie of experienced and talented Drainage Engineers has ensured the integrity of Municipal Drains throughout the Province.

(c) The third cornerstone is the administration by a municipality. This provides an independent administration at the local level, traditionally without bias and with competent accounting controls. Local Councils also bring to the process an element of local knowledge that can frequently relieve undue hardship through the process of the Court of Revision, etc.

(d) The fourth building block is the Appeal Procedure. The Province has historically provided independent "decision makers" specialized in the field of drainage, who have helped to develop drainage law and procedure for a practical and cost effective system. The Act builds into the process numerous opportunities for appeal which, together with site meetings and the consideration of the Report, provide for maximum local input. The purpose is to fine tune the drainage project to suit local circumstances which are frequently unique. The appeals not only permit people to vent their strong objections, but serve the dual purpose of educating the participants so that they understand the nature of the design, the reason for the assessment, and above all the justice of the process. The fundamental historical prerequisites of judicial administration are:

(a) easy access (without the complications of red tape);

(b) speedy decision making; and

(c) an inexpensive process.

Historically, the Drainage Referee for many decades fulfilled that function. For short periods of time, County Court Judges and the Municipal Board also served (but the record reveals that they did not serve with the specialized knowledge and efficiency that was required). After the 1975 Act, the legislation provided for two agencies, the Drainage Tribunal and the Drainage Referee. The first oriented to the facts and the second oriented to the law. Both are specialized and cost effective.

The historical success of the Drainage Tribunal from its creation in 1976 was its determination to keep legal costs at a very low premium and to allow landowners access without the need of lawyers. That, in my opinion, has been one of the major reasons why the Drainage Tribunal has had significant success and has been well accepted by the agricultural community in this Province.

The above result comes from the general interplay of the common law, the provisions of the Drainage Act, the rules made pursuant to the Act, the Statutory Powers Procedure Act, and the Judicial Review Procedure Act.

Hearing Sequence of Events

The sequence of events giving rise to the other issues are as follows. The original hearing in connection with Mr. King’s appeal was scheduled for March 15, 2001. On March 5, 2001, a notice was served on Mr. King’s behalf seeking the following remedies

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.

On March 15, 2001, the Tribunal, constituted itself as a pre-hearing panel and received submissions. The written decision of the pre-hearing panel was released on March 23, 2001, and it granted many of the requests put forth on behalf of Mr. King. The remedies generally granted were interlocutory in nature, providing as follows.

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.

A transcript of the hearing indicates that the panel also expected to grant the right to an engineer retained by Mr. King to enter upon the lands and make an examination and/or survey. When the order was actually issued, this was not included.

At some time after the decision was released, counsel for Mr. King spoke about the pre-hearing decision to a member of the pre-hearing panel (not a member of the panel hearing this appeal). This was done in the absence of other counsel. Counsel’s account (from Exhibit 5) in this respect is as follows:

“His reply to me was that it was not an omission and that the Tribunal had decided not to allow such access. I am not attempting to quote his words, but rather the general import of the conversation”.

It was inappropriate for counsel for Mr. King to speak to a member of the pre-hearing panel. If counsel had any concern about whether the order omitted the access item by mistake, there was plenty of time between March 15, 2001, and the scheduled hearing date of June 19, 2001, to apply to the Tribunal, under the Tribunal Rules of Procedure for a review of the order. This was not done.

In any event, established case law is that the verbal indications of a proposed disposition do not bind the adjudicator, and that the released written endorsement, order or reasons govern. An appeal will not succeed based upon what transpired here.

The hearings commenced on June 19, 2001. After the commencement of the hearings, counsel for Mr. King made a verbal application for the Tribunal to recuse itself and to have the hearing referred to the Drainage Referee. No prior written notice was given of this application, and all the parties were ready to proceed. Mr. King’s counsel gave verbal notice to other counsel the day before the hearing. Mr. King’s grounds for the application were that what had happened at the pre-hearing raised the reasonable apprehension of bias. The proposed remedy was that the Tribunal should divest itself of this matter entirely and refer it to the Drainage Referee, to be heard as a trial de novo. The panel dismissed the application and indicated that reasons would be provided in the eventual hearing decision. These are the reasons:

Reasonable apprehension of bias is an important matter and there are numerous decisions touching on it. The following is a paraphrase of the cases.

The reasonable apprehension of bias must be a reasonable apprehension, held by reasonable and right-minded persons, applying themselves to the question, obtaining the required information and thinking the matter through. These hypothetical persons should have knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background of the hearing body and apprised also of the fact that impartiality is one of the duties the hearing body. Viewing the matter realistically and practically through the eyes of an informed person there must be substantial grounds for the apprehension that the hearing body’s decision will not be made on the merits of the case but as a result of the closed mind, prejudice or some other defect on the part of the hearing body.

The foregoing is a broad summary. There are refinements of the tests as they apply to judges, specialized tribunals, other administrative bodies, etc.

The courts have said that the allegation is a serious step that should not be undertaken lightly, but that counsel must be free to fearlessly raise such allegations.

Once there is an allegation of reasonable apprehension of bias, the hearing body must make a ruling on the matter and either continue with the proceedings or disqualify itself. Generally, when a judge disqualifies himself or herself, another judge will re-start the hearings. Similarly, when an appellate court finds that a panel was disqualified, the matter is generally referred back for a new hearing before a different panel. Therefore, unless the entire 20+ member Tribunal is disqualified for the reasonable apprehension of bias, the normal remedy is to refer the hearing to a differently constituted panel.

This panel considered the allegation of reasonable apprehension of bias. It came to the conclusion that no reasonable, right-minded, well-informed person could have substantial grounds for an apprehension of bias by reason of the decision of the pre-hearing panel. As is common in most matters, success was divided, so if there could be a reasonable apprehension of bias, such a claim could be made in every case; and in this case, the municipality could have made such a claim, too.

After the allegation of reasonable apprehension of bias was disposed of, there was a second application on behalf of Mr. King, similarly made upon one day’s verbal notice. This was on the basis that counsel for the municipality had a potential conflict of interest in that his partner at one time wrote to the municipality on behalf of Mr. Gordon Durward of a notice of a potential claim. Mr. Durward is downstream and not assessed on this drain, but Mr. King proposed to call him as one of the witnesses.

The panel ruled that there was a potential conflict in that counsel for the municipality could not cross-examine one of the appellant’s witnesses, and that if in the circumstances counsel for the Municipality wished to withdraw and seek an adjournment so that the Municipality could instruct new counsel, the request would be granted. Counsel so wished and the panel adjourned the hearing. At the request of counsel for Mr. King, there were conditions, which included the following:

2. An engineer retained by Mr. Carl King is to be granted the same right of entry, and obligations, as and engineer appointed under the Drainage Act for the purpose of examination of the site. In addition, the engineer will give reasonable notice to each landowner before entering their property.

3. Mr. John Kuntze and Mr. Scott MacNeill are ordered to attend at the continuation of this hearing at their own expense.

The municipality instructed new counsel and the continuation dates were set on July 20, 2001, for September 18 and 19, with October 2, as the continuation date, should it be needed.

On September 12, counsel for Mr. King faxed the following to the Tribunal and other counsel:

“After the Tribunal issued its decision, Mr. King and I have considered his remedies. He has elected to file an appeal with the referee from the decisions of the tribunal. A copy of the draft notice of appeal, which is being issued and served today, follows.

As the appeal attacks the jurisdiction of the tribunal, I am of the view that the tribunal is not able to proceed with this matter because, if the appeal succeeds, the entire matter will be transferred to the referee.

I will be providing the tribunal with the notice of appeal, as issued, as soon as I have it back.

I shall also advise you that I have been retained by certain owners downstream of the proposed work with instructions to bring an application to the referee for a declaration that the proposed work does not comply with the requirements of the Act and that the municipality should be enjoined from proceeding. I will be seeking to have the 2 matters heard together, or at least consecutively.

Kindly confirm that the hearing before the tribunal is adjourned sine die.”

The above is Exhibit 7 in the hearing. In response, counsel for the majority landowners faxed a letter to the Tribunal (Exhibit 8), but not to counsel for Mr. King. The text of this letter is as follows:

“I am in receipt of the Notice of Appeal filed by Mr. Courey in the above matter.

In my view this matter should go ahead, otherwise there is a possibility that the question of costs, which was held in abeyance by the Chairman until the matter was finally disposed of, may never be dealt with.

In my view Mr. Courey should appear on behalf of the Tribunal in person. I plan in being in Lindsay for Tuesday, September 18, 2001.”

Counsel for the municipality also faxed a letter (Exhibit 9), and a copy of this was provided to counsel for Mr. King. The text of this letter is as follows:

“I now have your facsimile correspondence the Agriculture, Food and Rural Affairs Appeal Tribunal and your draft Notice of Appeal.

I reiterate the position that I expressed to you when you first contacted me with respect to this matter on July 25^th. The matters you raise are not properly within the jurisdiction the Drainage Referee, but rather require an application for judicial review to the Divisional Court, pursuant to the provision to the Judicial Review Procedure Act.

At the time of our last conservation, you approached me about dates when I might be available in August to have this issue addressed. We discussed the need to have the matter determined in advance and obviate the unnecessary expense and inconvenience of preparation for a hearing before the Tribunal if it were not going to proceed.

I provided you with some available dates.

When we closed our conversation, you indicated to me that your client was considering his position. You left me with the impression that, if I did not hear from either Ms. Gillespie or yourself with respect to the matter within the following week or ten days, that you would have decided not to pursue that avenue, so that we could all get on with the business of preparing for the tribunal hearing.

From that time until yesterday, I have heard nothing from you. Furthermore, I understand, at no time did you ever contact Ms. Gillespie with respect to the dates that I had indicated I was available.

It therefore appears that your avowed intention of having this matter determined in timely way in advance of the hearing so as to minimize the expense and inconvenience for all concerned was, rather, simply verbiage.

To raise the matter now, on the eve of the hearing, with preparations in progress, having done nothing to bring the matter forward since the end of July, is, in my view, abusive to both the Tribunal and the other parties to the proceeding.

It would appear to be nothing less than another “late date” tactic to delay the hearing, obfuscate the issues and increase the expense, while simultaneously serving as an end run around the existing decisions, the costs of which have been reserved to the Tribunal when it ultimately hears the matter.

Our instructions are to vigorously oppose any further attempts to delay this hearing. Our preparations are continuing. We are also instructed to advance this same position before the Drainage Referee. In that regard, I find it noteworthy that you purported to solicit information about my availability for the purposes of an early resolution of this matter, but have extended no similar consideration to either Mr. Turville or the writer with respect to the draft Notice of Appeal now apparently in process.

In preparation for this hearing, I will be departing my office at close of business Friday, September 14, and can be reached through Kawartha Lakes City Clerk office on Monday, September 17 or on my cell phone, which is (number) should you wish to discuss the matter further.”

The Tribunal took the letter from counsel for Mr. King as a written application to adjourn, considered the matter, and issued an order on September 17, 2001, stating that the the Tribunal is mindful of its statutory and common law obligations to deal with matters properly before it in a fair and expeditious manner. In the absence of a valid operating order of prohibition directed to the Tribunal, the Tribunal will continue with the hearing in this matter and will deal with all issues as they arise. The application to adjourn the hearing was dismissed and the costs were reserved to be argued and dealt with upon the conclusion of the hearing.

The hearing resumed on September 18, 2001, and counsel for Mr. King advised the Tribunal that Mr. King’s position was not that Mr. King was asking for an adjournment. Mr. King was telling the Tribunal that the Tribunal was without jurisdiction. The panel ruled that it had already made a ruling in that regard and would not re-hear argument.

Counsel for Mr. King also filed the Notice of Appeal to the Referee (Exhibit 12) that had been issued on September 17, 2001. The relief claimed in the Notice of Appeal is as follows:

1. An Order setting aside the decisions of the Agriculture, Food and Rural Affairs Appeal Tribunal dated March 23, 2001 and June 29, 2001 concerning the Washington Drain in the Township of Mariposa.

2. An Order that the Referee is seized of the appeal of Carl King concerning the report by Tom Pridham P. Eng. dated April 28, 2000, and the assessments levied thereunder.

3. An Order setting out the procedure for the conduct of this appeal, as a trial de novo, in substitution for a hearing by the Tribunal.

4. Such other relief as may be requested.

The law of the land is not that the simple administrative filing of a Notice of Appeal stalls a hearing body, rendering it impotent. In order to determine the effect of such a notice there are statutory provisions that must be looked to. See, for instance, the varied provisions in the Rules of Civil Procedure, the provision for interim orders in the Judicial Review Procedure Act, etc.

The Notice of Appeal in this case can be looked on in two ways: it can be considered to be an appeal in the normal course, or as an application for judicial review.

The Drainage Act provides that the Tribunal decision is final in matters under ss. 48 and 54, though the Divisional Court can overturn a Tribunal decision on the grounds of error of law. This hearing is under ss. 48 and 54 and it is clear that the final decision of the Tribunal cannot be appealed (in the normal sense) to the Referee. Although the final decision cannot be appealed to the Referee, is there an appeal of an interim or interlocutory order to the Referee? The Drainage Act, s. 106(2) reads as follows:

Subject to Section 101 (which refers to the Tribunal’s jurisdiction in ss. 48 & 54, among others), the referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purpose may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal.

This panel has not been referred to any cases which deals with this point. There is nothing in the Tribunal rules of procedure and there is nothing in the Referee rules of procedure dealing with this point.

Pending appropriate resolution of the issue by a higher authority, the Tribunal approached the matter in the following way. The Notice of Appeal was issued on September 17, 2001, that is, approximately three months after the hearing commenced on June 19, 2001. The Notice of Appeal seeks to appeal the order of March 23, 2001. Regardless of any problems in working out the consonance of all the statutory provisions that may be applicable, the plain fact is that the nature of the order of March 23, 2001 is pre-hearing, interlocutory; and it is spent once the hearing has actually commenced. If that were not so, an interlocutory order could be appealed even after a decision is made in the main hearing.

The Notice of Appeal also seeks to appeal the mid-hearing order of June 19, 2001 (issued on June 29, 2001). Again, regardless of working out the consonance of all the statutory provisions that may be applicable, if counsel for Mr. King is right, then every evidentiary ruling of a hearing body could be appealed and the hearing brought to a grinding halt time after time. No hearing could ever be completed that way. It is clear case law that mid-hearing errors of hearing bodies are dealt with upon appeal (where there is appeal), after the conclusion of the hearing.

On the other hand, if the Notice of Appeal is not considered as an appeal in the ordinary sense of the word, but as an application for judicial review, again the case law is clear that the mere fact of bringing the proceedings does not deprive the hearing body of jurisdiction. While the hearing body may suspend proceedings pending the application, it need not do so. The hearing body only has to stop when there is an actual, valid, operating order.

As stated above, echoing the Drainage Referee’s comments in the case already cited, the Tribunal is mindful of its statutory and common law obligations to deal with matters in a fair and expeditious manner, and the Tribunal’s decision was to proceed with the hearing.

In general, if Mr. King’s position is correct, then the following scenario could occur: on day one the Tribunal is without jurisdiction because a party has filed a Notice of Appeal. On day two, the Tribunal re-acquires jurisdiction because the party has withdrawn the appeal. On day three the Tribunal is again without jurisdiction because the party has filed a new Notice of Appeal. And so on.

Next, counsel for Mr. King raised the issue of reasonable apprehension of bias. The basis of the claim was firstly that the letter from counsel for the majority owners was not sent to him, so that he had no opportunity to respond; and secondly that the letter from counsel for the municipality contained inflammatory language which caused Mr. King irreparable harm.

The panel considered the allegations and ruled that there was nothing in the letter from counsel for the majority landowners that could lead to a reasonable apprehension of bias.

In regard to the letter from counsel for the municipality, the vigorous language (to which counsel for Mr. King could have replied) was very much the same as the Tribunal had already heard from counsel associated with this case.

The panel ruled that there was no reasonable apprehension of bias.

Counsel for Mr. King then stated that although Mr. King did not withdraw his appeal, he declined to submit to the jurisdiction of the Tribunal, he will not make his case, will not call witnesses and will not make submissions.

Counsel for Mr. King remained at the counsel table for the rest of the hearing, and got peripherally involved in some matters, but generally declined to call evidence or make submissions, though given a chance at every turn.

The following is taken from McGill and City of Brantford, 1980 CanLII 1741 (ON HCJ), 111 DLR (3d) 405 (Divisional Court):

The objectors withdrew from the hearing on the ground that Council was biased. I think it would have been prudent to stay. Leaving is risky. That is shown in what happened here. We have decided that the objection based on bias was a point not well taken. By their act of withdrawal, the objectors have prevented their views from being heard.

I think it is a better course, in such circumstances, because it is without risk, to register one’s objection and, if it is unavailing, to stay and participate. I do not see how remaining and participating may reasonably be seen as waving the objection.

Viewing the Site

Counsel for Mr. King attempted to poll the hearing panel to find out if any members had viewed the drain. The Chairman refused to allow this. The viewing of the drain has been considered by the Drainage Referee in a number of cases.

The function of the Tribunal is to conduct a thorough review of the drainage projects brought before it. The effective and efficient determination of these matters has been delegated by the Province of Ontario in part to this specialized body. The Tribunal has to make a determination on a number of issues concerning a project, including some design, cost and cost distribution issues. The Tribunal makes decisions, refers matters back to engineers for re-consideration, and issues guidance on various matters related with the process under the Act. The Tribunal has historically taken its obligations very seriously and has discharged them conscientiously. While the Tribunal has judicial functions, it is not a judge between contestants. The Tribunal serves the entire drainage community, and the success of one party or the other is always related to the entire drainage community. For instance, an appellant may be able to demonstrate that the engineer has used inappropriate methods of distributing the costs. Nevertheless on many occasions the Tribunal has confirmed the assessments on the grounds that the figures fall within the acceptable range, and it is not to the financial benefit of the drainage community to refer the report back to the engineer for further consideration. Without the specialized knowledge, the Tribunal would not be able to make such a determination.

The Tribunal conducts internal training sessions, which members are expected to attend. In addition, members are expected to continue to develop their skills and knowledge on an individual basis. The Tribunal members bring a lot of skill and expertise. For instance, on this panel, one member has practiced as a drainage engineer since 1968, while another has sat on Tribunal hearings since 1984.

The Tribunal sits in every part of the Province where there are drains. It is common knowledge that there are vast topographic differences, ground conditions, agricultural practices and general design features in the different parts of the Province. It is part of the specialized knowledge of the Tribunal to be cognizant of these matters.

Historically, the Tribunal used to attend the site, as a body, in the absence of the parties, in order to familiarize itself with local conditions. That practice has been discontinued since at least 1995.

It is important to note that many drains are invisible, because they are entirely tile drains. Many drains are not visible from the roads, because they are so far set back, or hidden by natural features. Many drains are right by the road, however, and in fact, right by the place of hearing. Often panel members could avoid seeing the drain only by closing their eyes as they drive to a hearing.

No panel member goes on private property to inspect the drain, no panel member talks to anyone connected with the drain, no panel member investigates the drain, taking measurements or soil samples, etc. Some (but not all) panel members take the “scenic” route to a hearing to get a general feel for the country and drive by the drain site for the same purpose. Almost invariably, there are a number of drains along the route which, of course, are not involved in the hearing. All this is taken as part of the general education of the panel members. It is not specific preparation for the hearing, like reading the engineer’s report and other documents filed with the Tribunal.

The hearings are better for the specialized knowledge of the Tribunal, but the decisions are firmly and entirely based on the evidence presented at the hearing.

Department of Fisheries and Oceans

The involvement of the Department of Fisheries and Oceans (DFO) in the drainage process is relatively recent. The legislation has been in place for a long time, but up until 1997 in respect of drains the administration of the legislation was through the local conservation authorities. It is important that the drainage process continue to adapt to incorporate compliance with all the relevant federal legislation. There is, of course, a corresponding federal obligation to co-operate with the provincial agriculture process in regard to drainage.

The Fisheries Act prohibits the harmful alteration, disruption or destruction of fish habitat (HADD). The Minister of Fisheries and Oceans recognizes the importance of agriculture to Ontario’s economy and the Minister can authorize HADD. Also, drain maintenance activities can benefit fish habitats and help to maintain the watercourse in good physical condition.

In the approvals process the DFO works with local Conservation Authorities. A system of Class Authorizations has been developed, and classification has been completed already for much of Southern Ontario. Drains are classified with regard to four parameters:

Flow: intermittent, permanent

Temperature: cold, cool, warm

Fish species: forage, top predators, ecosystem indicators

Stability: time since last maintenance

The combination of the above parameters leads to four classes and within each class there are different authorized activities. Class authorizations can apply to maintenance of agricultural drains, but site-specific authorizations are required for all other undertaking. In the case of site-specific authorizations the guiding objective is that there should be a net gain of productive capacity of fish habitat, which is achieved through conservation, restoration and development. There should be no net loss. If there is a habitat loss, it should be balanced with habitat replacement. Accordingly, the authorizations will have conditions in them, aimed at mitigating or habitat replacement.

A ministerial authorization has the effect of removing legal liability for HADD on the part of those who cause it.

In an ideal world, the engineer gives notice of the project and of the first site meeting to the local Conservation Authority, the local Conservation Authority attends the first site meeting and is involved in the process leading to the engineer’s report, so that by the time the report is completed, the class authorization or site specific authorization are already in place.

However, the system is still being implemented, and there have been cases before the Tribunal where the authorization had not been received by the time of the hearing.

There are two main issues arising from DFO involvement: cost and timely participation in the process. Cost is not likely to be an important matter here. However, it is possible that DFO requirements would add very substantially to the overall cost of the project. While the local drainage community might reasonably be expected to absorb a low premium (say 15%) to preserve and improve fish habitats for the wider benefit of the Province and the country, there needs to be a mechanism developed to allow a broader-based financial sharing for substantial premiums.

Timely participation means that the DFO, like any other involved party, must provide input in an orderly manner. For instance, the DFO could not, in effect, hold a project at ransom by simply refusing to deal with an application. Such a scenario is highly unlikely. More likely is the delay in issuing the authorization or changing the conditions to a project well along the way.

This happened here, too. The engineer had given notice of the project and there were site meetings with DFO representatives. As a result of the DFO requirements, the design of the drain has been changed. However, although the ministerial authorization is expected in the terms of the features already incorporated, by the time of the hearing it had not been received. Bearing in mind the long history of this matter, the Tribunal will not hold up approval of the project until the DFO decides to release the authorization.

But what happens if the conditions attached to the authorization change from what has already been designed into the project? The engineer does not have authority to change the specifications from what have been approved here. The municipality does not have the authority to deviate from the specifications in the construction of the project, yet the municipality should not be required to construct the drain as approved here, when the construction could expose the municipality to charges under the Fisheries Act.

It may be that the DFO conditions require changes that can be accommodated within the existing report in the normal course of construction, etc. However, in the event that the DFO conditions require changes that call for an amended report, then relying on the powers granted to the Tribunal by the Drainage Act, leave is given by this order to the engineer to incorporate the changes in the project, produce an amended report, which is to be circulated in the same manner as the original report, with a direct right of appeal to the Tribunal as from the original report. For the purposes of such an appeal, this panel is not seized of the matter.

Costs

The submissions of the parties were as follows.

Counsel for Mr. King submitted that the Tribunal had no jurisdiction to hold the hearing, make a decision or an award regarding costs.

Counsel for the municipality submitted that 1.5 hours was spent in the hearing on September 18, 2001 to revisit an issue that had been addressed twice before and suggested that the cost attributable to this portion of the hearing be assessed to the appellant. She suggested that the balance of the costs associated with matters heard on September 18, 2001 be assessed to the drain.

She also pointed out that the drainage superintendent, Mr. Kuntze, who is from Kitchener, was ordered to attend on September 18, 2001 at the request of counsel for Mr. King, and that she told him that she would not call Mr. Kuntze as a witness. In view of his position regarding the jurisdiction of the Tribunal, counsel for Mr. King knew that Mr. Kuntze was not going to be needed and could have told him not to waste his time. She suggested that counsel for Mr. King had been disrespectful to the Tribunal and other parties and there should be a cost consequence.

With regard to the costs incurred due to the start of the hearing being delayed from the initial start date of March 15, 2001, counsel for the municipality suggested that there may have been an honest misunderstanding regarding information requested of Mr. Pridham by counsel for Mr. King and the intended use of the engineer’s field notes. She noted that the relief sought in a motion dated March 5, 2001 by Mr. King was an adjournment of the hearing, an order for discovery and an order that an engineer retained by the appellant could enter the lands in the watershed. She submitted that as the appellant was not wholly successful on the motion, he should not get his costs. She submitted that it is not unusual to have an initial adjournment, but that the relief sought was extraordinary and that this necessitated the adjournment, so the responsibility and costs should be assessed to the appellant. She suggested there were other means for him to get the information he requested. She estimated the cost to the municipality of complying with the Tribunal order arising from the pre-hearing conference on March 15, 2001 was approximately $1,000.

Counsel for the municipality submitted that the combination of the initial adjournment, the second adjournment and the matters heard on September 18, 2001 doubled the cost of the hearing. She said the actual engineering costs are approximately $20,000 whereas they would normally be approximately $10,000.

She also submitted that the issue of whether or not Mr. Swain had a bias was raised with little notice, and the municipality was unable to determine if Mr. Durward, a client of Mr. Swain’s partner, would object to Mr. Swain acting for the municipality in this matter. She said that she understood that the appellant reviewed the Municipality’s file on the Washington Drain in March 2001, and submitted that the appellant had the information regarding Mr. Swain well in advance of the June 19, 2001 hearing date. She said Mr. Swain’s costs were $5,200 for two days. She submitted that the costs of the proceedings on March 15, 2001 and June 19, 2001 as well as the first 1.5 hours of the proceeding on September 18, 2001 should be assessed to the appellant. She estimated that the Municipality’s cost was $10,000 in engineering costs and $6,500 in legal costs for that portion of the proceedings. She said this did not include the cost of having Mr. Kuntze attend.

Counsel for the majority of the assessed landowners submitted that the appellant had produced no evidence to refute Mr. Pridham’s evidence. He said 71% of the assessed landowners in the watershed were his clients and that they collectively held 73% of the private lands in the watershed, were assessed 59% of the total costs or 79% of the total private costs. He submitted that his clients are the innocent players in this matter and that regardless of who was at fault in March 2001, it was not his clients. He suggested that the costs of the proceeding on March 15, 2001 be assessed against the appellant. He submitted that the municipality should be assessed some of the costs of the proceeding held June 19, 2001. He asked the Tribunal to assess a portion of the cost related to the proceeding on September 18, 2001 to the appellant as he appealed, attended at the Hearing, but filed no evidence. He said that the total costs incurred by his clients for all three days was $7,500.

Mr. Brouwer said he had nothing to add except that on the issue of costs he felt the Municipality should absorb the costs and that the appellant should not be penalized for appealing just because counsel thinks that he approached it incorrectly. He also submitted that the Municipality should be a neutral party and said that it had taken a very one-sided view.

The question of costs has assumed increasing importance in recent years. There have been many cases, discussing the appropriate approach to awarding or not awarding costs.

Under s. 73 of the Act, the cost of regular and special council meetings is not included in the costs of the project. There is a similar provision in regard to the work performed by the clerk of the municipality for services performed by the clerk in carrying out the provisions of the Act. Traditionally, the Tribunal interpreted that provision as encompassing all the administrative expenses of the municipality, including, for instance, the services of the drainage superintendent. It is, therefore, a given that every hearing will result in some expenses for the ratepayers of the municipality.

As for the rest of the costs of the Municipality associated with the appeal, they form part of the cost of the project, unless otherwise provided in the decision.

The traditional approach of the Tribunal has been that appeals brought in good faith and prosecuted reasonably usually bring about some benefit to the project, so that there is no need to make a special cost award. Generally, appellants have not been judged harshly, and have not been held to the standard litigious provision where the loser pays for some of the winner’s costs.

But there are plenty of cases where the Tribunal or the Drainage Referee were of the opinion that it was unfair to expect the assessed owners to bear all of the distributable costs of the appeal. Examples include situations where appellants complained of the quality of construction, but failed to bring evidence of any non-compliance or defect in construction; where appellants with a minuscule assessment brought a plainly unmeritorious appeal; where engineers failed to comply with the Act or the directives of the Tribunal; where a party adopted an extremely adversarial approach, etc.

In this case, the panel is not able to find that there was any benefit to the project by the bringing of the appeal. It is a simple project, well engineered, and project costs are plainly equitably distributed.

The evidence at the hearing in support of the project and its various aspects was overwhelming. Mr. King chose not to call evidence, but in the judgement of this experienced panel, very weighty and substantial evidence would have been needed to contest what has been put before the Tribunal.

Mr. King is not a neophyte to drainage. Since well before the date of the original hearing, Mr. King has been advised by very able counsel, one whose name appears in Tribunal and Drainage Referee decisions more often than anyone else’s. His property is assessed on two different drains, one of which is this one. He was assessed for the 1977 Washington Drain work in a similar fashion to the assessment on this project. He is affected only by the repair work on the main drain as he is not assessed on the two new branches. His assessment on the project is 2.6% of the total, being $2,370, out of the total project cost of $91,500. The work on the main drain is clearly a statutory obligation of the municipality; the municipality can legally be compelled to have done it. In the light of all this, what could Mr. King hope to achieve? Mr. King has paid for a court reporter to attend all three appearances from March 15, 2001 forward, and perhaps this is indicative of his attitude to having the Tribunal hearing his concerns and disposing of this matter in an economic and efficient matter for the general benefit of the drainage community.

Mr. King adopted an extremely adversarial approach. Expense and inconvenience to the other members of the drainage community were maximized. The thrust of a lot of his efforts were directed not at the merits of the project but at the procedure.

The engineering preparation forced on the municipality by Mr. King has far exceeded what a project of this size should require. While drainage engineers provide information to assessed owners, the drainage community should not pay for the excessive time demands placed on the engineer by any one owner. The drainage community, as a whole, should not pay for the education of any one member.

Taking all of the above into account and applying it to the history of the appeal, the pre-hearing and mid-hearing orders, this panel is of the view that Mr. King should bear some of the costs of the municipality.

The cost estimates provided to the Tribunal are reasonable. Indeed, it is likely that a detailed accounting would come to a higher total than the estimates. It may be that in the future, in a similar situation, the Tribunal would require a detailed accounting and base a cost award upon its consideration and the representations received in regard to it.

The Tribunal is making a cost order against Mr. King in the amount of $8,000.00, in favour of the municipality.

Costs have been sought against Mr. King by the majority of the assessed landowners, too. If these proceedings were judged strictly by the normal adversarial litigious standard, an award would be appropriate. While the panel came very close to making an award, in this case the municipality was well represented, it put forth a strong effort in favour of the project and there was no benefit to the drain as a result of the majority owners’ independent representation. The panel recognizes that this is partly hind-sight and the panel is not to be taken as foreclosing an award in similar cases in the future.

References

In addition to the legal authorities mentioned above, the panel has considered also the following:

Committee for Justice v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369

Newfoundland Telephone v. Board of Commissioners, 1992 CanLII 84 (SCC), [1992] 1 SCR 623

Bell v. Ontario Human Rights Commission, 1971 CanLII 195 (SCC), [1971] SCR 756

Golden Valley Colf Course v. B.C. (2000), 2001 BCCA 392, 200 DLR (4^th) 248

Setlur v. Canada (Attorney General) (2000), 2000 CanLII 16580 (FCA), 194 DLR (4^th) 465

R. v. Pickersgill, ex p. Smith (1970), 1970 CanLII 922 (MB QB), 14 DLR (3^rd) 717

Vergeer v. West Elgin, Drainage Referee, January 21, 1999

Blandford-Blenheim v. Van Der Krift, Drainage Referee, May 16, 1997 & August 27, 1997

Campbell v. Mariposa, Drainage Referee, October 20, 2000

Short Drain Branches “A” & “B”, Township of Mariposa, Drainage Tribunal, October 6, 2000

Michener Drain, City of Port Colborne, Drainage Tribunal, April 11, 1997

Trudell Drain #2, Township of Aldeborough, Drainage Tribunal, October 21, 1996

Lewis & Maple Avenue South Drains, County of Brant, Drainage Tribunal, September 1, 2000

Lembke Drain, Township of Sullivan, Drainage Tribunal, December 15, 1997

ORDER OF THE TRIBUNAL

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

1. The appeal of Mr. Carl King under Sections 48 and 54 of the Drainage Act, against the report of the Engineer with respect to the Washington Drain is dismissed.

2. In the event that the Department of Fisheries and Oceans approval contains conditions that are not accommodated by the Engineer’s report (including the normal construction practice flowing from the report and the specifications), the Engineer is given leave to incorporate the conditions in an amended report and the report as amended shall be circulated in the same manner as the original report, and all assessed owners may appeal directly to the Tribunal, by filing an appropriate notice with the municipality within 40 days of the mailing of the amended report. For the purposes of the appeal this panel is not seized of this matter.

3. The Tribunal assesses Mr. Carl King $8,000.00 in costs to partially offset the costs of this appeal. This sum shall be paid within 45 days of the date of this decision to the City of Kawartha Lakes and is to be credited to the account of the drain. If unpaid within the 45 day period, the municipality is directed to add the unpaid sum to the taxes in arrears on Roll number 30-375-00, being part of the North Half of Lot 21, Concession 10, former Township of Mariposa. The sum of $8,000.00 is not to be considered eligible for grants.

4. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Shelburne, Ontario this 22^nd day of October, 2001