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, chemin Stone Ouest
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Comazzolo Drain
City of Welland
Comazzolo Drain (RE) 2007 ONAFRAAT 01
STATUTE:
Drainage Act
HEARING:
December 6, 2006
DATE OF DECISION:
January 18, 2007
2007-01
NEUTRAL CITATION:
2007 ONAFRAAT 01
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 Joseph Comazzolo and April Comazzolo, Welland, Ontario under Section 5 of the Drainage Act on the grounds that the Council of the City of Welland has taken no action on their petition for drainage more than 30 days after the filing of their petition.
Before: Gene Trotman, Vice Chair; Jack Young, Vice Chair; Ron Gelderland, Member
Appearances:
George Banks, counsel to the City of Welland, respondent
Laura Eden, law clerk, City of Welland, respondent
Norm Sutherland, P. Eng., representing the appellants
Joseph Comazzolo, appellant
April Comazzolo, appellant
Don Thorpe, witness for the respondent
HEARING OF THE APPEAL BY THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) heard this appeal in Welland, Ontario on Wednesday, December 6, 2006; brought by Mr. Joseph and Mrs. April Comazzolo, the appellants and the owner of property in the City of Welland in an area known as the Meadows Subdivision. The appeal is based on the fact that the appellants had petitioned for drainage under Section 4 of the Drainage Act which petition the City of Welland failed to provide a response thereto within the thirty (30) days of its filing as prescribed by the Drainage Act.
Affidavits of Service were filed with the Tribunal as proof that all parties had been served with notice of this hearing.
STATUTES INVOKED AND CONSIDERED
Subsections 5. (1) and 5. (2) of the Drainage Act and Section 71 of the Planning Act.
Those Sections stipulate as follows:
- (1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,
(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or
(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources. R.S.O. 1990, c. D.17, s. 5 (1).
- (2) Where a petitioner,
(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or
(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council,
the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2); 2006, c. 19, Sched. A, s. 6 (1).
- In the event of conflict between the provisions of this and any other general or special Act, the provisions of this Act prevails. R.S.O. 1990, c. P.13, s.71.
MOTION by Mr. George Banks, Counsel to the City of Welland.
At the onset of the hearing, Mr. Banks made a motion, a matter preliminary to the hearing of the appeal itself, asking the Tribunal to dismiss the appeal on the basis that Section 71 of the Planning Act provided that “in the event of a conflict between the provisions of this and any general or special Act, the provisions of this Act prevail”
Mr. Banks submitted that the Meadows Subdivision was subject to a registered subdivision agreement, which included the contouring of land and specific requirements for each lot, and that lot owners were bound by these conditions. He concluded that should an engineer design a project under the Drainage Act, in this circumstance, he or she would have to vary the plan registered under the Planning Act and this would create a conflict, in which case the Planning Act would prevail.
Mr. Sutherland, representative of the appellants, responded to the motion by stating that in the past, appeals related to drainage matters were taken to County Judges and Referees and hearings were very formal and expensive. He emphasized that the Drainage Act was established to serve landowners better as it provided a more user-friendly method of resolving disputes. In support of this conclusion he referred the Tribunal to a 1993 case adjudicated by the Ontario Drainage Tribunal1 - Howard S. May v. Township of Murray - in which it was enunciated that the council of a municipality should look at three points in determining whether or not to act on a petition for drainage:
(i) Is the petition in the form prescribed by the Regulations?
(ii) Is the Petition duly signed as provided in the Act?
(iii) Is the area as described in the petition an area requiring drainage?
Mr. Sutherland also provided the Tribunal with a 1991 case adjudicated by the Ontario Drainage Tribunal - Environs Landscape Contracting Co. Limited and the Town of Flamborough - to substantiate his position that it was similar case to the Comazzolo appeal as in both cases there was an available remedy in civil court as well as a remedy under the Drainage Act, and that both cases were exactly the type of situation that the Drainage Act was designed to deal with. As a consequence, he submitted emphatically that he did not see a conflict between the Drainage Act and the Planning Act.
Mr. Banks called Don Thorpe, City Planner as a witness and the Tribunal accepted him as an expert witness on planning.
Mr. Thorpe testified that:
- Since 1981 the Municipality has made the inclusion of a lot grading plan a requirement for the approval of subdivisions.
- Draft approval of a subdivision plan is usually given for a period of three years; the drainage contours must be included in the draft plan.
- Once all the various regulatory agencies have given approval for the subdivision development the Municipality enters into a subdivision agreement with the developer and registers the agreement.
- In order to obtain a building permit, a landowner must comply with the lot grading plan registered in the subdivision agreement.
- In the event of a property sale, all subsequent landowners must comply with the subdivision agreement.
- The Municipality received its authority to enter into and enforce agreements from Section 51 of the Planning Act.
- There is a legal drainage plan under the Planning Act for the Meadows Subdivision.
- The lot plan shows the swale on the Comazzolo lot as constructed.
Mr. Sutherland in response to the testimony of Mr. Thorpe stated that there was no dispute that there was a subdivision plan in place, but the problem was that the provisions of the subdivision agreement had not been enforced by the Municipality and this resulted in flooding. He explained that a landowner had filled in a swale and dammed the water draining from five other properties compounding the problem because sump pumps drained over ground to the rear of the properties.
Mr. Sutherland told the Tribunal the appellants had considered going to court over the matter but preferred to use the less expensive option of petitioning under the Drainage Act and through this process they were just asking that the swale be put back to its original condition and did not see how one process could exclude another alternative.
In response to questions from the Tribunal, Mr. Banks indicated:
- The subdivider’s agreement does not ever cease to function unless it has been discontinued. This plan was still in effect.
- The Municipality was not enforcing the agreement because it viewed this issue as a conflict between neighbours, with both sides contributing to the drainage problem.
- The developer was no longer involved in the subdivision agreement; the people who acquired title assumed the developer’s responsibilities.
- Landowners can litigate the matter in Small Claims Court. The Municipality also had legal options to enforce the agreement but had chosen not to exercise them.
Mr. Banks asked the Tribunal to find that it does not have jurisdiction in this matter due to Section 71 of the Planning Act.
Mr. Sutherland said there was a simple process under the Drainage Act that would resolve the problem and asked the Tribunal to find the petition should be accepted.
FINDINGS OF THE TRIBUNAL RESPECTING THE MOTION
The Tribunal found for a fact that there was no conflict with respect to the Planning Act and the provisions of the Drainage Act pertaining to an appeal to the Tribunal.
Section 71 of the Planning Act does not in and of itself create a conflict with section 5 of the Drainage Act. It simply states which act will prevail in the event there is a conflict between “the provisions” of the Planning Act, and “the provisions” of any other general or special Act. In order for a conflict to arise, one has to point to specific “provisions” of the Planning Act and specific “provisions” of the act in question, in this case the Drainage Act, in order to demonstrate that they are in conflict or competing provisions. This the Counsel of the City of Welland failed to do. Conflict of the type contemplated by Section71 of the Planning Act must be determined by a comparison of the actual provisions in question and not by deductive reasoning howsoever articulated.
The Tribunal finds the submission made by Mr. Sutherland regarding the establishment of the Drainage Act in keeping with the Purposive Theory pertaining to statutory interpretation. This theory stipulates that “legislation should be interpreted in the light of the purpose behind the legislation.” This approach was endorsed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), (1998) 1 S,C.R . 27. Moreover, the Tribunal finds that decision of the Ontario Drainage tribunal dated January 11, 1991 to be quite applicable to the instant appeal by virtue of the following dicta stated therein:
“the primary purpose of the (Drainage) Act, is to grant to an owner of land the right to drain his lands, that require drainage, over the lands of abutting and successive owners of land and to take the water to a sufficient outlet. Resort should not be to the Civil Courts but to proceedings under the (Drainage) Act.’
Because of the Findings of the Tribunal as outlined above, the motion submitted by the City of Welland must be dismissed and the appeal of the appellant under Section 5 of the Drainage Act must be allowed to proceed.
THE ISSUES REGARDING THE APPEAL
Is the appeal properly before the Tribunal and if so does the Tribunal have the authority to direct the Council of the City of Welland “to make such decisions and to take such actions as the council is auhorized to take under” the Drainage Act?
Do the lands involved require drainage?
EVIDENCE SUBMITTED IN SUPPORT OF THE APPEAL
Mr. Sutherland pointed out that the property was on the subdivision plan (Exhibit 6) and explained that drainage was meant to be to the west, through five properties then south to a culvert. He said this worked until one part of the swale was blocked off and that the use of sump pumps exacerbated the drainage problem. He added that the appellants had met with the mayor of the Municipality and had discussed having a new swale to the side of the property, but to no avail, nothing had come of it.
Mr. Joseph Comazzolo showed the Tribunal photographs depicting flooding. He said water gathered behind the Comazzolo property seeped under a fence and into their yard. He said it took a long time to drain away and he could not even cut his grass unless there was a drought. He complained that the water did not drain away in winter and that his sump pump used side swales but water sits in the swales without draining away causing his yard to be unusable and his fence to be under water.
In response to questions from Mr. Banks, Mr. Comazzolo indicated:
- Part of the water on his property originated on properties to the north of the Meadows Subdivision.
- His garden was not in the swale; nothing on his property was in the swale.
- He expected to have a drainage works that would accommodate future development and the existing swale.
Mrs. April Comazzolo said a 25-year resident had told her the Comazzolo property was receiving all the water from South Pelham into their swale, not just water from the Meadows Subdivision. She said they had not elevated anything on their property.
Mr. Banks did not call any evidence at the hearing, other than evidence called to support the preliminary motion.
SUMMATIONS
Mr. Sutherland said he understood that if the Municipality did not act on a petition within 30 days, then the petitioners can go to the Tribunal to have the petition accepted. He argued that if the Tribunal restricted itself to ordering the Municipality to make a decision on the petition, he would be back before the Tribunal on the same matter in six months.
Mr. Banks pointed out that this appeal came to the Tribunal because the Municipality had not made a decision on the petition filed by the appellants. He submitted that the only jurisdiction the Tribunal had was to order the Municipality to consider and make a decision on the petition before it, as that was all the Municipality could do under Section 4 of the Drainage Act. He suggested that the Tribunal direct the Municipality to decide for or against the petition. He cited the authority Ian McFee Rogers Volume 2; p 919-920 which he said described the statute as enabling legislation, and concluded that the Municipality should retain its jurisdiction in this matter.
Mr. Banks made it quite clear that the Municipality had not yet made a decision on the petition as it ran out of time considering the matter when the appeal was launched. He argued that if it had decided in time, the Municipality could have refused to consider the petition and there was no provision in the Drainage Act to override its ability to decide to go forward or not.
THE FINDINGS
The Tribunal finds as follows:
The appellants did file a petition for drainage with the Council of the City of Welland in accordance with Section 4 of the Drainage Act.
The Council of the City of Welland did not comply with Section 5. (1) of the Drainage Act which required it to consider the petition “forthwith” and make a decision either to proceed or not to proceed with the drainage work involved and give notice of such decision to each petitioner within the prescribed thirty (30) days.
While the flooding problem is mainly on the Comazzolo property, the evidence is that a number of landowners contribute runoff water from their lands to the flooded area. The Drainage Act requires the major portion of the costs be assessed to the landowners involved in the project.
The Tribunal does not accept Mr. Banks’ submission that the Tribunal cannot order the Municipality to accept the petition and appoint an engineer to make an examination of the area in question and make a report as required by Section 8 of the Drainage Act. The Tribunal finds that it has authority to order the Council to take action on the petition based on the combined interpretation of Sections 5 and 8 of the Drainage Act especially the former which states as follows:
Where a petitioner….(b) has not, within 30 days after the filing of the petition, received notice of the decision of the council, the petitioner may appeal to the Tribunal ……and the Tribunal may … direct the council to make such decision and to take such action as council is authorized to take under this Act and as the Tribunal considers proper.
This wording in the combined sections referred to above clearly provides the authority for the Tribunal make the Order that follows herein.
Because the Council breached Section 5. (1) of the Drainage Act the petitioners by virtue of section 5. (2) of the Act had the statutory right to appeal to the Tribunal for redress.
From the evidence submitted it appeared that the property in question has a flooding problem. However, it should be noted that the engineer appointed under Section 8 of the Drainage Act will determine the area requiring drainage and the validity of the petition.
The Tribunal does not accept Mr. Banks’ view that the provisions of the development agreement under the Planning Act are still in effect after the passing of the assumption bylaw by the Municipality. Further evidence of this is that the Municipality has not taken any action to remedy the situation under the development agreement to which they are one of the signing parties.
The Tribunal accepts Mr Sutherland’s argument that the appellants have the choice of a civil action through the courts or to use the provisions of the Drainage Act to obtain resolution of the drainage problem herein considered.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders that:
The council of the City of Welland shall accept the petition in accordance with Section 5 of the Drainage Act.
The council of the City of Welland shall appoint an engineer for this project in accordance with Section 8 of the Drainage Act.
Points 1 and 2 of this order shall be completed prior to March 1, 2007.
There shall be no order as to costs, and all parties shall be responsible for their own costs of this appeal.
Dated at Guelph, Ontario this 18th day of January, 2007.