Darmar-Tamlin Municipal Drain (Re), 2015 ONAFRAAT 17

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 Courriel: AFRAAT@ontario.ca

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:

Darmar-Tamlin Municipal Drain City of Kawartha Lakes

Darmar-Tamlin Municipal Drain (RE) 2015ONAFRAAT17

STATUTE:

Drainage Act

HEARING:

February 4, 2015 and April 17, 2015

DATE OF DECISION:

September 11, 2015

2015-17

NEUTRAL CITATION:

2015ONAFRAAT17

DARMAR-TAMLIN MUNICIPAL 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 Darmar Farms Inc., of Cannington, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision pertaining to the Darmar-Tamlin Municipal Drain.

AND IN THE MATTER OF: A motion filed by the Kawartha Region Conservation Authority (“CA”).

Before: Stan Benda, Vice-Chair; Andrew McBride, Member; Tim Mousseau, Member

Appearances:

Dale McFeeters, Appellant

Trevor Winter, Counsel for the Appellant

Robyn Carlson, Counsel for the Municipality

Ken Jull, Counsel for the Kawartha Region Conservation Authority, Party to the Appeal

Rob Messervey, Witness for the Kawartha Region Conservation Authority

Peter Waring, Witness for the Kawartha Region Conservation Authority

Michael Gerrits, Engineer who prepared the report

David Wittred, Assessed Landowner

Jim Whittacker, Assessed Landowner

Bruno Wilimek, Assessed Landowner

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this hearing in the City of Kawartha Lakes (the “Municipality”) in Lindsay, Ontario on February 4 and April 17, 2015. The Engineer’s Report, dated May 21, 2014, for Darmar-Tamlin Municipal Drain (the “Report”), was prepared by Tulloch Engineering Inc., and signed by Michael Gerrits, P. Eng., (the “Engineer”). Mr. Dale McFeeters of Darmar Farms Inc., (the “Farmer / Landowner”) filed an appeal of his property’s assessment to the Tribunal.

Judy Currins, Clerk of the City of Kawartha Lakes, performed the duties of the Clerk of the Tribunal.

The Tribunal hearing began with the motion filed by the CA on February 4, 2015 and continued with the motion on April 17, 2015.

All original parties were ably represented by counsel at both hearings.

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service, dated November 25, 2014, as proof that all parties had been served with the notice of hearing.

Bruno Wilimek, David Wittred and James Whitaker, assessed landowners, requested, and were made a party to the hearing. These individuals subsequently made no written or oral submissions.

The CA was also made a party by the Chair of the Tribunal. This action prompted the preliminary motion by the CA arguing a lack of jurisdiction in the Tribunal.

BACKGROUND

Colloquially speaking, this matter concerns a full time farmer who wanted to drain his cleared, worked agricultural land through a low, wet bush and a cattle-tramped low run (a man-made version is called a ditch) that contained some 28 minnows. The petitioning landowner was assessed as part of the assessment schedule in the Engineer’s report, a ratable bill for $49,944 for an “environmental impact study” allegedly required for a permit the landowner neither applied for nor sought.

The problem is that the farmer initiated the process under the Drainage Act (the “Act”) which expressly states that should a conservation authority or government request an “environmental appraisal” for a new drain, the requestor has to pay for it.

As noted, the farmer never applied to the CA for any permits. Nonetheless, the CA took over jurisdiction, admittedly ignorant of certain parts of the Drainage Act. The CA prosecuted its own CA mandate over the farmer and his drain request with great earnestness, if not zealously.

The CA was indifferent to the “appeals”, actually supplications, of the farmer concerning the $49,944, as was the municipality to which the petition for drainage was properly submitted under the Act. The farmer appealed to the Tribunal.

The CA essentially states that the Tribunal has no jurisdiction over it. The CA candidly pleads its ignorance of the drainage laws and, furthermore, that the CA’s statutes are more recent and consequently take precedence. Finally, the CA contends that its work pivots on an environmental impact study, not an environmental appraisal.

PRELIMINARY MOTION

The CA filed a preliminary motion urging that:

• the Tribunal denied the CA procedural fairness by accepting the appeal;

• the Tribunal denied the CA procedural fairness by adding the CA to the Appeal; and

• the Tribunal had no jurisdiction over the CA.

All parties’ counsels agreed that the evidence and arguments in the preliminary motion would be considered as the hearing proper–a decision on the merits–in particular the matter of jurisdiction.

DECISION SYNOPSIS

For reasons discussed below, the Tribunal finds that

• the CA was as not denied procedural fairness;

• the Tribunal does not have jurisdiction over the CA due to section 6 in this case; and

• the costs of the environmental study or impact study shall be borne by the Municipality.

ISSUES

This matter concerns three parties:

• A group of farmers / landowners who wanted to drain their cleared, worked agricultural land through an area colloquially described as a low, wet bush and a swale that passes through two pasture fields;

• The CA, to wit: the Kawartha Region Conservation Authority – that acted in earnest under its main statutory and regulatory powers but was ignorant of the key pertinent statutory provisions of the Drainage Act which directly engaged the CA; and

• A Municipality, the City of Kawartha Lakes, that accepted and blindly processed the drain petition but otherwise did nothing to manage a situation that subsequently fell out of control by falling under the purview of another regulatory scheme.

The tombstone statement of facts holds:

• The farmers filed a “petition” for a new drain under the Drainage Act;

• The municipality processed the application under the Drainage Act that involved

o formally notifying the CA about the petition drain in February 22, 2012¹

o appointing a drainage engineer to prepare a report;

o formally notifying the CA about the “on-site meeting” held on July 31, 2012, which the CA did not attend;

• The drainage engineer subsequently contacted the CA;

• On April 11, 2013, some 13 months after the project was initiated and the CA was first notified, the CA advised the Municipality that an Environmental IMPACT Study (EIS) would have to be completed for this proposed drain which was subsequently executed by the firm for whom the engineer worked;

• The engineering cost, which included the cost of the EIS, was assessed against all of the lands and roads within the drainage area, including the lands of the farmers;

• The environmental impact study was billed at $49,944;

• The farmer consequently sought a review of that cost by the CA (which was rejected);

• The farmer appealed his assessment to the Court of Revision under the Drainage Act; the appeal was dismissed for lack of jurisdiction;

• The farmer then appealed his assessment to the Tribunal but the notice of appeal cited section 6 instead of section 54; and

• The Chair of the Tribunal accepted the appeal despite the wrong section being cited.

The farmer says he should not be responsible for any part of such an excessive cost for the environmental impact study. The Act states that a CA that seeks an environmental APPRAISAL pays for that environment appraisal – not the farmer (landowner).

There are three issues:

1. Procedural Fairness: Was it denied to the CA by either accepting the appeal or adding the CA as a party?

2. Jurisdiction: the CA argues that the Tribunal has no jurisdiction over it since it did not act under the Drainage Act (and it matters not that this occurred out of ignorance) and its modern Act prevails over the hoary Drainage Act (this can also be characterized as a statutory interpretation issue).

3. Cost: who pays the $49,944?

PROCEDURAL FAIRNESS

The acceptance of the appeal did not deny the CA procedural fairness. Not accepting the appeal because the wrong section was cited by a then unrepresented appellant would be a reviewable error. Is the CA suggesting that the Tribunal should make such an error? Is the CA suggesting that the Tribunal must read and apply the law with such fastidiousness that an unrepresented litigant who accurately describes the nature of the claim but cites the wrong statutory provision must therefore forfeit its appeal? Indeed one can read section 51 of the Drainage Act enabling the consideration of section 6 in a section 54 appeal.

The notice of appeal clearly sets out that the appellant wanted to appeal his assessment, and the appellant was unrepresented at the time the appeal was made. The citing of section 6 of the Drainage Act referred to the grounds or basis of the appellant’s argument, and one does not need to cite section 54 of the Drainage Act when the appellant clearly indicates in the notice of appeal that the assessment is what is being appealed.

Furthermore the CA implicitly argued that it should have sufficient standing to argue that the Farmer / Appellant does not have standing due to an invalid appeal. Yet the CA objects to being provided with that standing.

There was no denial of procedural fairness by adding the CA as a party. The CA was added because the notice of appeal raised issues that could impact the CA, in particular the argument that the CA should rightly pay for the environmental study. On the face of the record the CA could incur obligations under the Drainage Act. Consequently the CA was added as a party early in the process to ensure that the CA received procedural fairness entitlements such as receiving notice, participating in document exchange, and having an opportunity to respond to the appeal.

Given that the CA consented to proceed to a decision on the merits of the appeal suggests that their standing in this appeal was necessary.

JURISDICTION – GENERAL

This argument by the CA is fundamentally an argument of the merits of ordering the CA to pay for the study. The argument is not a threshold jurisdiction argument that is often raised on a preliminary motion. Parts of the arguments that are called procedural fairness arguments also seem to be more about the merits of cost allocation, as they relate to section 6 obligations and how the CA has incurred legal costs.

The CA was free to participate or not participate, and would incur costs in order to participate whether they were added as a party by the Tribunal or not. Accepting the appeal and adding the CA as a party did not negatively impact procedural fairness entitlements at all, as the resolution of the appeal would turn on the same arguments and issues. The issue that straddled both the merits and preliminary motion was the Tribunal’s jurisdiction over the CA – albeit in the context of a petition drain (pivoting on section 6 of the Drainage Act) with the ultimate question of who should pay for the study. As the CA and the other legally represented parties consented to treating this motion hearing as the hearing on the merits, the analysis that follows focuses on issues with the study and the two legislative schemes at play.

Jurisdiction Over the Conservative Authority under s. 6 of the Drainage Act

Legal Framework - History and Processes of the Drainage Act

The Drainage Act regime is about 176 years old.

The first statute law affecting drainage in Ontario was in 1835, An Act to Regulate Line Fences and Watercourses.² Starting in 1859, a new Act introduced the prescribed process for eponymous petition drains which process continues to the present.³ Under this regime, landowners could petition for construction of a drain, an engineer was appointed, and assessments were made against the lands that benefitted from the drainage works. In 1871, the Act was amended to allow the Commissioner of Public Works to act on the written application of a municipality that had received a petition of the majority of the owners benefited by the drain. In 1874, all previous acts were repealed and a new Act was passed entitled An Act Respecting Ditches and Watercourses. In 1891 the office of the drainage referee was established.⁴

A Commission was appointed in 1892 to examine drainage laws. The identified problem concerned accurately identifying the lands that benefited from the drainage. The Committee’s proposal manifested in the present Act was to have the engineer’s reports submitted to Council who then could determine the validity of the petition and the scope of the affected lands. In 1894, the Municipal Drainage Act was passed, ignoring many of the Commission’s recommendations. Starting in 1903, so-called “drainage viewers” were appointed to assist the engineer, and their decision could veto the engineer’s report. Viewers were removed from the Act by 1913. In 1946 the Ontario Municipal Board took over the referee’s function.

A second Commission was appointed in 1948 to examine drainage. The Commission identified the main problem being the tension among drainage, conservation and flood control, and that tension needed to be mediated by a neutral authority.⁵

By the 1960s another Advisory committee faced six drainage related statutes in Ontario, which resulted in four being repealed leaving the Drainage Act and the Tile Drainage Act. In 1972, the administration of these two Acts was placed under the jurisdiction of the Ministry of Agriculture and Food.⁶ That Drainage Act dealt with private drains (now known as “mutual agreement drains”), petition drains and requisition drains.⁷ The Committee also recommended the right of appeal to the court of revision for any assessed land (based on the engineer’s report).

In June 1972, a Select Committee, or colloquially a third commission, was appointed to examine drainage. Its report, in 1974, resulted in the latest iteration of the Drainage Act, proclaimed April 1, 1976.

The existing Drainage Act provides for two types of drains: mutual agreement drains and petition drains (sometimes called municipal drains). The petition drain process involves the following steps:

STEP 1: Initiation

A petition filed with the municipality by:

• The majority in number of landowners in an area requiring drainage; or

• The owners representing 60% of the area requiring drainage; or

• Where a drainage works is required for a road, the person having jurisdiction over the road; or

• Where a drainage works is required for the drainage of agricultural lands, the Director.

STEP 2: Consideration

• The applicable municipal council must consider the petition within 30 days of filing and

o Decide not to proceed and,

o If the decision is not to proceed, notice is given to each petitioner and an appeal lies to the Tribunal

OR

• Decide to proceed and give written notice to:

o Each petitioner and

o The clerk of each local municipality that may be affected, and

o The conservation authority or the Ministry of Natural Resources.

• The applicable conservation authority or municipality has 30 days to request an environmental appraisal and the costs thereof are payable by the requesting authority, i.e. a conservation authority.⁸ (s. 6(1)).

• There are guidelines for an environmental appraisal.⁹

STEP 3: Engineer Appointed

• The municipality must, within 60 days of giving notice to proceed, appoint an engineer; a failure to do so gives rise to a right of appeal to the Tribunal.

STEP 4: Engineer’s Duties

• The engineer must prepare a report that satisfies the statutory requirements of the Drainage Act¹⁰, including

o Plans, profiles, specifications, description of the affected area;

o Cost estimate;

o Assessment schedule; and

o Allowances if any.

• The Drainage Act prescribes an ethical duty on the engineer¹¹:

The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon. [Emphasis added]

• Before making an examination (survey) of the area and a report, the Engineer has the clerk of the initiating municipality send a written notice specifying the time and place of the on-site meeting.¹² The addressees of the notice are all the owners of land in the area requiring drainage and any affected utility or road authority. Policy holds that the engineer should also contact the relevant conservation authority.

Step 5: - Unofficial Consideration

• Council and Drainage Superintendent may review the engineer’s report to ensure all issues are addressed and hold a meeting with all the interested parties to consider the report.

Step 6 – Preliminary & Final Reports

• A preliminary report is required when an (i) environmental appraisal or (ii) a benefit cost statement or both is requested; this allows for petitioners to withdraw at this stage.¹³

• Where a sufficient number of petitioners remain, a final report is prepared and submitted to council.¹⁴

• The clerk then sends a copy of the final report to:

o All assessed landowners;

o All affected utilities and road authorities;

o Another other affected other municipalities

o the applicable conservative authority¹⁵ or, if none, the Minister of Natural Resources; and

o The Minister of Agriculture and Food.

• Whoever requests the environmental appraisal under s. 6(1) may appeal the costs of the environmental appraisal to the Tribunal within 40 days of receiving the account.¹⁶

• Any landowner, municipality or conservation authority dissatisfied with the environmental appraisal has the right to appeal to the Tribunal.¹⁷

Step 7: Meeting to Consider

• Council holds a meeting with all the interested parties to consider the final engineer’s report and notifies:

o All assessed land owners;

o Clerks of affected municipalities;

o Secretary-treasurer of any affected conservative authority;

o Affected railway, public utilities or road authorities;

o The Minister of Natural Resources; and

o The Director

• Costs are shared amongst the affected lands, roads and utilities per step 9.

• Costs excluded from the assessment are the costs of any environmental assessment or cost benefit analysis. By statute these costs are paid by the requesting party.

STEP 8: Execution and Appeals

• The initiating municipality adopts the engineer’s final report by a provisional by-law¹⁸

• Various appeals lie, including if

o the report is not adopted,¹⁹

o the report is considered flawed,²⁰

o the benefits of the drainage works do not justify the costs²¹

o any of the assessments are considered to be of drainage work costs too high or too low²²

• In addition to the earlier appeals available to the any conservation authority regarding the costs of, or content of the environmental appraisal, a conservation authority also has the right to appeal the final report to the Tribunal

Where the proposed drainage works is to be undertaken within a watershed in which a conservation authority has jurisdiction, the authority may appeal from the report of the engineer to the Tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act…²³

STEP 9: Assessment

• The final costs of the drainage works is imposed upon the assessed lands by the municipality and is payable in such installments as the council may prescribe.

• A grant is available to the qualified farmer/ landowner that typically defrays 1/3 of the assessment. The qualification is that the farmer / landowner is engaged full time in agriculture.

• Normally grants are NOT available to the farmers for environmental appraisal costs, since those costs are suppose to be paid by the requesting party.²⁴

• The municipality acts as a bank in that it pays the engineer and the construction costs, and assesses the total cost of the project against the affected lands and roads, and then applies for the grant.

The pivot of the aforementioned petition process is section 6

6(1) Upon receipt of a notice from the initiating municipality under subsection 5(1), a local municipality, conservation authority or the Minister of Natural Resources, as the case may be, may send to the council of the initiating municipality within thirty days a notice that an environmental appraisal of the effects of the drainage works on the area is required, and the cost thereof shall be paid by the party that requested it.

(2) The council of the initiating municipality may obtain an environmental appraisal on its own initiative, the cost of which shall be paid by the municipality from its general funds.

(3) The party requesting the environmental appraisal or the council of the initiating municipality as the case may be, within forty days of receiving the account therefor, may appeal to the Tribunal, and the Tribunal may confirm or vary the account as it considers proper. [Emphasis added]

The 1972 Committee report noted that the Committee had doubts that agricultural drains had that much of an environmental impact, but was willing to recognize the possibility.²⁵

Jurisdiction Over the Conservative Authority

Legal Framework - History and Processes of the Conservation Act

The Conservative Authorities Act was created in 1946 in response to erosion and drought concerns.²⁶ That Act has been amended over the years to allow what are now known as Section 28 regulations starting in

• 1956 to prohibit the filling in of floodplains (after Hurricane Hazel in 1954);

• 1960 to prohibit the dumping of fill where that might affect flooding, pollution or conservation of land;

• 1968 to prohibit or control the construction and alteration to waterways;

• 1998 (Red Tape Reduction Act) to deal with development, interference with wetlands and alterations to shorelines and watercourses;²⁷ and

• 2006 empowering all conservation authorities to enforce “development, interference and alteration regulations”, namely 42/06, 146/06 and, of particular import here, 182/06.

Quoting from the report²⁸

CAs are empowered to regulate development and activities in or adjacent to river or stream valleys, Great Lakes and inland lakes shorelines, watercourses, hazardous lands and wetlands. They ensure conformity of wording across all CAs and complement municipal implementation of provincial polices under the Planning Act such as hazardous lands and wetlands. Development taking place on these lands may require permission from the CA to confirm that the control of flooding, erosion, dynamic beaches, pollution or the conservation of land are not affected. They also regulate the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream, watercourse or for changing or interfering in any way with a wetland. (Emphasis added)

2.12 Section 28 (1) of the Conservation Authorities Act²⁹ reads, in part:

Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,

a) restricting and regulating the use of water…

b) prohibiting, regulating or requiring the permission of the authority for … changing … a watercourse, or … a wetland;

c) prohibiting, regulating or requiring the permission of the authority for development if … the conservation of land may be affected by the development.

Regulation 182/06³⁰ made under section 28 requires a permit from the Kawartha Region Conservation Authority for any person seeking to prosecute a development or permit another to prosecute a development in a river or stream valley, a wetland, or hazardous lands.³¹ The regulation is peppered with the word “development”.³² Section 4 of the regulation provides a formal process for seeking permission from the CA to undertake a development. Also, section 7 of the regulation provides a formal process for seeking permission from the CA to interfere with a watercourse or a wetland.

In addition to the aforementioned statute and regulations, the CA provided its Plan Review and Regulation Policies,³³ a document of some 287 pages, to applicants and developers.

• Of some importance is that this policy has, on page 22, section 1.3.7, a page dedicated to the Drainage Act. This explicitly states that the CA is engaged with drainage matters in three ways, the first being with new or petition drains (or in other words the aforementioned excerpted section 6 of the Drainage Act).

• A second reference to the Drainage Act is found at page 143, section 4.7.2.4, Channel or Shoreline Alterations, where it speaks to “works approved pursuant to the Drainage Act”.

• Appendix R, (page 241) entitled “Drainage Act and Conservation Authorities Act Protocol” supposedly harmonizes the interaction between the Drainage Act and the CA’s mandate with respect to drain maintenance and repair only (not construction). This speaks to a 2008 inter-agency team (DART) addressing the tension between the Drainage Act and the section 28 regulations in that context only.

The Tribunal notes that this legislative scheme is permissive as to the requesting of an environmental impact study, and moreover is silent as to who pays.

EVIDENCE

Examining the facts, in light of the law and arguments, suggests the Tribunal is faced with a profound complication.

All statutorily prescribed processes concerning a petition drain were followed such as initiation, consideration, engineer appointment, and “meeting to consider”. Again, of some import, is that the CA was officially notified on a number of occasions about this petition drain:

• Notice of resolution to proceed with the petition drain dated the February 22, 2012;³⁴

• a site meeting was called by the engineer on the July 31, 2012 (which the CA did not attend);³⁵

• Engineer’s Final Report submitted May 21, 2014;³⁶

• Notice of the Meeting to consider the final Report, dated June 5, 2014;³⁷ and

• By-law approving the drain, dated July 8, 2014.³⁸

Under section 6 of the Drainage Act, given the notice above dated February 22, 2012, the CA had until approximately March 22, 2012 to request an environmental appraisal. The requesting party by statute must pay for any request for an environmental appraisal. The CA made no such request. Neither did the CA appeal the Engineer’s report.

Michael Gerrits, P. Eng., the Engineer who prepared the Report

Engineer Michael Gerrits, appointed by the Municipality under the Drainage Act prepared the drainage report and sealed and signed it on May 21, 2014. The report is very clear that it falls under the compass of the Drainage Act, and the CA’s representatives are noted in it, e.g. attending on site meetings. Interestingly, within the Drainage Report is an environmental assessment / impact study that was requested by the CA.

Michael Gerrits is an inexperienced drainage engineer, this being his first petition drain. In his evidence he states he was surprised that the CA got involved with this minor drain. This was an area that cattle walked and was so flat; a fallen log would divert any water flow.

Mr. Gerrits was not expecting the demand from the CA for an environmental assessment or impact study, but complied anyway. He said he knew this was outside of the purview of the Drainage Act. He also said that he didn’t want to make waves with the CA that he would have to work with in the future. So, instead of confirming jurisdiction and rights, he merely complied, to the tune of some $50,000. Indeed, Mr. Gerrits used his firm to prepare the environmental impact study. Mr. Gerrits also said that the CA went through the municipality requesting the impact study. The Engineer’s Report thus contained the usual materials necessary under the Drainage Act plus the environmental impact study demanded by the CA.

When asked in cross-examination as to the distinction between an environmental appraisal and an environmental impact study, Mr. Gerrits was at a loss.

The Tribunal accepts the evidence of Mr. Gerrits, in particular his fear of offending the CA, the finding of 28 minnows in his report and the character of the land subject to the petition. The Tribunal also finds that Mr. Gerrits retained his own firm to do the study. Finally the Tribunal accepts the facts of the environmental appraisal concerning the character, nature and wildlife impact of the proposed drain.

Rob Messervey, Kawartha Region Conservation Authority

Mr. Robert Messervey, the CEO of the CA, testified.

He said he may have had six previous encounters with the Drainage Act, but had dealt with over a 1,000 applications under the CA’s regulation and he had over 30 years of experience. He said he had no real knowledge of petition drains. He did say that the CA would NOT respond to a Drainage Act petition notification until the CA was provided with plans and an environmental assessment.

He also said that the policies of the CA were made without regard to the Drainage Act. His focus was to have consistency in the administration and implementation of the CA’s policies under its regulations.

Mr. Messervey also said that the CA did not pay for environmental impact studies. He said there were no formal appeal processes for environmental costs, but he did entertain submissions from applicants.

The Tribunal found Mr. Messervey forthright. However Mr. Messervey was clear in manner and deed that the Drainage Act was of little consequence to him given his perceived mandate. The Tribunal takes note of that attitude, his refusal to acknowledge a Drainage Act notification, and his indifference the to Drainage Act processes.

Peter Waring, Kawartha Region Conservation Authority

The second witness for the CA was Mr. Peter Waring, Manager of Planning and Regulations for the CA and, therefore in charge of permitting.

He attested to the fact the CA has some 21 experts on staff on all matters of conservation, biology etc. His prior experience with the Drainage Act involved maybe two new drains as well as a number of drain maintenance projects. He also noted that the CA resists giving any advice to farmers on drainage matters to avoid liability. He admitted there were no fisheries issues in the area of the proposed drain.

It is worth noting that his letter of April 11, 2013³⁹ to the Drainage Superintendent spoke of the Drainage Act but, pursuant to the CA’s policies, the drain needed a permit from the CA and that required an environmental impact study. The letter gave explicit instructions on additional requirements for the proposed drain to protect fish.

The Tribunal accepts the evidence of Mr. Waring, in particular the scale of the expertise found in the CA, the avoidance of liability and awareness of the Drainage Act.

Jurisdiction Over the Conservative Authority

Legal Arguments - Conservative Authority Argument

The CA argues amongst other points as follows:

• The Tribunal is constituted under the Drainage Act, and all actions of the CA are under the Conservative Authorities Act and attendant regulations, therefore the Tribunal has no jurisdiction over the CA. The CA has its own appeal process.

• The CA did not invoke section 6 of the Drainage Act (petition drain notice, request for environmental appraisal) and consequently cannot be liable for those procedures.

• The CA has to act on its own initiative to trigger section 6, which it did not do.⁴⁰ Neither did it seek to appeal the engineer’s report.

• The CA’s legislative regime is more recent than the drainage legislative regime, and thus displaces the drainage legislative regime to the extent of any inconsistency or alternatively takes precedence.⁴¹

• The CA suffered a denial of procedural fairness by the Tribunal accepting the Farmer’s appeal.

• The CA suffered a denial of procedural fairness by being made a party to the Farmer’s appeal.

The CA is very assiduous in its reading the evidence.

• The engineer recognized the CA’s power when seeking the permit that eventually begat the environmental impact study that cost some $50,000.⁴²

• The engineer was acting as agent of the Municipality, and so binds the Municipality.⁴³

The CA argues that an environmental appraisal under the Drainage Act is distinct in nature and kind from an environmental impact study. Should the Tribunal find that the words are synonymous, then that results in a “penalty” against the CA, of approximately $50,000.⁴⁴

The CA also advocates the position that the farmer has appeal provisions available under the Conservation Authorities Act that also displaces the jurisdiction of the Tribunal. In addition the Municipality could have appealed under that Act but did not.⁴⁵ As argued by the CA in its closing arguments what is not appealable is the cost of the environmental impact study.

The CA also argues that somehow being made a party to a Drainage Act proceeding denies the CA procedural fairness, as did accepting the appeal in the first place.⁴⁶ Furthermore the CA with some 21 professional staff and access to first class legal advocacy pleads poverty should it be required to pay for the environmental impact study. Indeed, the CA pleads that it would thus be unable to meet its mandate.⁴⁷

The CA in its supplemental reasons argued that the CA was neither aware of section 6 nor the attendant processes.⁴⁸ It is rare to find a CA pleading ignorance of the law. The CA stated in oral argument that the venerable dictum “ignorance of the law is no defense” only applies to regulatory or criminal prosecutions, not administrative matters.

The CA states that greater dialogue amongst the parties would enhance accountability and transparency. Query: if the CA pleads ignorance or otherwise ignores processes what is the point of dialogue?

Jurisdiction Over the Conservative Authority

Legal Arguments – Farmer’s (Appellant’s) Argument

Succinctly put, the farmer states that the CA cannot fall outside the jurisdiction of the Drainage Act given that all processes under that Act were engaged: municipal by-law, appointment of the engineer; on site meeting, meeting to consider etc. Ignorance of the law or processes does not absolve the CA from the strictures of the Drainage Act.

The argument was also made that there is no meaningful distinction between the CA’s “environmental impact study” and the Drainage Act’s “environmental appraisal”. The rhetorical argument was “chesterfield or couch”. The Tribunal finds that there is indeed no compelling distinction between the two concepts, and adopts the reasoning of the farmer.⁴⁹ Indeed the Tribunal incorporates by reference the Appellant’s (farmer’s) argument on point (see factum, para. 24 and the table on pp. 14-16). But for reasons articulated below, even if these terms or labels are synonyms, it regrettably does not resolve the issue.

Jurisdiction Over the Conservative Authority

Tribunal Analysis

The CA acknowledges that the entire process was initiated under the Drainage Act, on February 22, 2012. The CA was given formal notice of all the relevant steps in the process. The CA did nothing. More than a year later, on the April 11, 2013, the CA finally demands an environmental impact study under its own legislative scheme. It claims this process ousts the jurisdiction of the Tribunal and the Drainage Act. Furthermore, the CA’s processes prevail over or take precedence for any conflicting Drainage Act processes.

The CA more particularly argues that section 6 does not apply even though the notice under section 5 was sent to the CA. It matters not that the CA ignored the notice. But, once notified, the CA had 30 days to respond. A CA that fails to act under the prescribed timelines of section 6 of the Drainage Act, forecloses the opportunity to seek an environmental appraisal. The evidence of the CEO was that the section 5 and subsequent notices were ignored unless accompanied by an application and an environmental impact study. So, under the Drainage Act, the CA was properly notified and under the law it either had to request an environmental appraisal, or failing that, waived its rights to an environmental appraisal– for which it would have had to pay. Yet the CA says this does not matter.

Indeed the CA goes on to say the Engineer and, vicariously, the Municipality acknowledged the jurisdiction of the CA. Problematic is the fact the engineer in viva voce evidence expressly identified that the process was under the Drainage Act, but it was not in his long term interest to “rock the boat” with the CA that he would have to work with in the future. The Engineer did this despite the Engineer’s statutory duty to act without fear of favour or prejudice. The Engineer passively continued prosecuting the file under the Drainage Act while concurrently satisfying the CA‘s demands. It is also problematic that the CA, in supplemental materials, pleads ignorance of the law. Can a citizen plead ignorance of the law concerning the CA’s mandate?

The Tribunal finds that specific mention of the Drainage Act – and in particular the policy of this CA acknowledging the process and concept of petition drains in its voluminous policy manual – all militates against any notion that the CA’s mandate displaces, overrules or repeals the Drainage Act regime.

The CA claims being responsible for the costs of the environmental appraisal is a penalty. The Tribunal is flummoxed. How does a statutory provision that explicitly states – the party seeking an appraisal pays for the appraisal – become a penalty? If anything it is an elegant self-policing provision. It is salutary for any CA that might otherwise seek environmental appraisals all out of proportion to the factual context. Note the following from the engineer’s report:

…the impacts of the municipal drain are relatively minor in scale and most often can be fully mitigated or offset. The limited impacts that cannot be fully avoided or compensated for are typically inconsequential or temporary in nature.⁵⁰ [Emphasis added]

This petition concerned the construction of a tile drainage outlet for agricultural land that must pass through some wet bush and along a pastured swale. This is not the instance of a developer putting in a residential subdivision or commercial facilities such as warehouses, refrigeration plants or so-called box-stores. This is a drain (a “ditch” in the vernacular) in an agricultural context that might affect 28 minnows. There are no human residents. Therefore there is no possibility of a loss of life akin to the flooding caused by Hurricane Hazel, as was raised by the CA to justify the environmental impact study.

The CA also pleads poverty or no budget to pay for this assessment.⁵¹ The absence or presence of a budget does not fix jurisdiction or liability. (The aggregate costs for all parties and the Tribunal so far for this appeal likely far exceed the roughly $50,000 at issue.) The point is that section 6 of the Drainage Act instills financial discipline on the CA. It does this by requiring the CA to pay for any environmental appraisal the CA should request. So, one would assume then that the CA would be scrupulous when determining if an environmental appraisal is necessary. Here the CA acted at best oblivious or indifferent to the Drainage Act or at worst ignorant of it. This is not really a budgetary decision per se.

The CA and Municipality both submit that greater dialogue amongst the parties would enhance transparency and thereby avoid the conflict and confusion evident here. Again, to re-iterate: if the CA pleads ignorance or otherwise ignores processes or claims “statutory precedence” what is the point of dialogue? If dialogue truly was the sincere point of the parties, this appeal should never have arisen or the CA and Municipality could have come to an arrangement thus terminating the appeal. Instead these parties (as they are entitled to) appealed or prosecuted the case to the fullest extent possible. Thus the Tribunal puts little credence in the suggestion of “dialogue” and “transparency”.

The inexperience of the Engineer, the indifference of the CA, and the lack of oversight by the Municipality all contributed to additional costs to this petition drain, not the least of which was an extensive, expensive and disproportionate environmental “Impact Study”. The Farmers / Petitioners did not cause or condone any of the additional costs. The Farmers were not even aware of the eventual costs until the bill arrived. In fact one wonders whether if all of the cost information was available to the Petitioners much earlier in the process as the Drainage Act expressly provides for, would the project have proceeded? Indeed, the Municipality did NOT instruct the preparation of the preliminary report that would have identified both the CA’s environmental concerns and consequential costs.

The Tribunal only has legal jurisdiction or the jurisdiction bestowed upon it by statute. It has no classic equitable jurisdiction.⁵² Consequently the Tribunal cannot entertain the notion of any sort of estoppel against the CA – a CA that was either ignorant or deliberately indifferent to the drainage statutory regime and the CA’s obligations thereunder. In other words the Tribunal cannot find that the CA waived its rights to an environmental appraisal under the Drainage Act and is thus estopped from demanding an environmental impact study under its regulations.

What the Tribunal has ascertained under law (rather than equity) is that there are 2 parallel regulatory schemes. Neither is inconsistent with the other. Technically phrased: obedience to one does not necessitate disobedience to the other. The CA has the right to request an environmental appraisal under the Drainage Act or its own regulatory scheme. There is no overt or even nuanced conflict between the regulatory regimes. Even though the CA dithered regarding the petition process under the Drainage Act, it could still invoke the processes under the Conservation Authorities Act.

The Tribunal is acutely aware that this interpretation allows the CA to potentially circumvent or thwart the Drainage Act processes. It makes the petition process, especially section 6 moot. That means the CA can avoid the intrinsic balance of costs and demands legislatively fixed in the Drainage Act with over a century of experience. Then again the Tribunal expects that knowledge of this decision will become wide spread amongst the drainage and conservation communities. Ignorance and indifference can no longer be pled. Perhaps as is the case with maintenance of drains, the drainage and conservation communities can establish policies that are respectful of both mandates.

A somewhat forgotten party here is the Municipality. The Municipality failed to monitor, supervise or identify problems with the process followed or actions taken or not taken by the engineer. There was no request for a preliminary report. The Municipality also was indifferent to the role, action and involvement of the CA in a petition drain context. Alertness could have foreclosed the misunderstandings and identified that the CA was acting through ignorance or an assumed paramountcy of its regulations. The Municipality should bear the consequences of that inaction, not the farmer / landowner who at this point, has been assessed most of the cost of the environmental impact study, without either any notice of quantum or the right to abandon the process.

FINDINGS

The second decision that lies for the Tribunal is the crux of the matter for the farmer / landowner operating through the corporate entity of Darmar Farms Inc. The farmer appealed his assessment, which included a ratable portion of the cost of the environmental impact study (the total cost being approximately $50,000) to the Court of Revision which declined to hear the appeal for want of jurisdiction. The farmer then appealed to the Tribunal and subsequently secured legal advice.⁵³

All parties agreed that resolution of this second issue (jurisdiction) and the evidence adduced would stand for and allow the Tribunal to resolve the third issue (cost).

As noted above, the CA ignored the Drainage Act. The Drainage Act provides

• a mechanism for payment of any environmental study (whatever the nomenclature)

• a grant mechanism to defray costs borne by the farmer that expressly does not apply to environmental appraisals;

• a check or salutary consideration against the over zealous or overreaching application of an environmental appraisal;

• a procedure to enable a petitioner to withdraw, should the costs be prohibitive; and

• a number of appeals to deal with costs, terms and content of an environmental appraisal.

The CA’s regulatory regime does NOT:

• enable any sort of set-off / grant;

• seem to expressly authorize the charging of fees (although the CA certainly does that); and

• have a cost appeal provision.

Still given all of the foregoing the harsh reality is that the Tribunal is forced to conclude that it does not have jurisdiction over the CA. There is no equitable jurisdiction. There are parallel non-conflicting regimes. There was a 13 month time frame from the section 5 notification under the Drainage Act to the CA’s request for an environmental impact study under the Conservation Authorities Act and related regulations.

However the Tribunal definitely has jurisdiction over the Farmer and the Municipality. As the CA can require permits at any time, and require an environmental impact study from an applicant, the CA ignoring the Drainage Act process does not affect the obligations of the Municipality and the Engineer. While the CA took itself out of the Drainage Act regime by dithering for 13 months, the Drainage Act is clear that environmental appraisal costs are not borne by the landowners. The Engineer and his principal, the Municipality, should have discharged their mandate by ensuring that the Drainage Act process was followed including the preliminary report and the role of the CA. The Municipality is the obvious link joining all of these parties in this matter. The Municipality failed in its responsibilities.

By way of obiter on the process and frictions between the various Acts and entities the panel submits the following.

In most agricultural areas in Ontario, it is generally agreed that tile drainage of the land is necessary to result in ideal production. This is normally well understood by all significant parties – obviously the farmers, but also the Municipalities (Drainage Superintendents and Councilors), the Conservation Authorities, Fisheries and Oceans Canada, the various affected Provincial Ministries and, of course, the experienced drainage engineers. In order for this tile drainage to work well, everyone understands that it is essential to have good outlets. These outlet drains are provided under the Drainage Act and are known as municipal drains.

In these agricultural areas, it is also well understood that Conservation Authorities are concerned about how and where these municipal drains are proposed to be constructed but, since all parties understand the need for the drains, they all seem to work together to make them happen, without significant extra costs for “environmental appraisals or studies”. The parties promoting the drains know that the CA is concerned and interested in every proposed new municipal drain, so they make sure that the CA is initially aware of all new proposals and is involved from the start of the process. Some Councils even have their members designated as ‘commissioners’ for drainage issues in certain portions of the municipality. These commissioners, along with the Drainage Superintendent, are responsible for all municipal drainage matters in that area and for keeping the Municipality, the Conservation CA, the drainage engineer and the landowners connected and communicating so that the new drain can proceed as efficiently as possible, while addressing the concerns of all parties.

Accordingly, what results is that the Engineer, and/or the Municipality, ensures that the CA is involved from the earliest stages of a new drain proposal and attends site meetings to express their concerns such as, including erosion control measures, preserving natural water storage areas as much as possible, keeping the destruction of natural vegetation or woodlots to a minimum and minimizing the disruption to wildlife and fisheries. Also, in these agricultural areas, the CA takes the initiative to get involved and provides general environmental advice to the engineer. All parties realize that it is most important to determine if there are any environmental issues that need to be dealt with at the early stages of a project.

By working in this cooperative manner right from the start of a new drainage project, it is very infrequent that special studies or environmental appraisals are necessary, as envisioned in Section 6 of the Act. Yes, in some special situations, it may be necessary for the engineer to retain a specialist to study and advise on some unusual issue, but most experienced drainage engineers are able to deal with the normal environmental concerns by incorporating well accepted design features so as to satisfy the CA.

In this case, it appears the Municipality took little interest in facilitating this drainage proposal, the engineer was somewhat inexperienced and reluctant to force the CA to get involved early in the process, and, in spite of some of the affected lands being part of one of its regulated areas, the CA sat back and waited for 13 months before showing any interest in the proposal. Certainly, this is not the normally accepted procedure in most agricultural areas in the Province. Much time and many thousands of dollars could have been saved and this hearing could have been avoided if the cooperative procedures described above had been followed.

ORDER OF THE TRIBUNAL

The Tribunal orders on the part of the Motion:

1. The CA’s right to procedural fairness was not offended on these facts. Indeed the CA by being made a party was allowed to bring forward its argument in a preliminary motion. The CA was not prejudiced by the Tribunal accepting the appeal of the Farmer.

2. The Tribunal has no legal (and no equitable) jurisdiction over the CA given the time frame of over a year between the Drainage Act section 5 notification and the request for an environmental impact study under regulation 182/06, despite the fact that CA pled ignorance or in effect statutory paramountcy. Rather the CA has a parallel regulatory regime that it followed, albeit in deliberate disregard or ignorance of the Drainage Act regime. Nonetheless, the CA is evidently entitled to follow the processes under its regulatory scheme. Those processes in this context do not engage the Tribunal and on its face do not conflict with the Drainage Act.

Furthermore, the Tribunal orders with respect to the s.54 appeal:

3. The Tribunal orders that the full amount of the environmental impact study be borne by the Municipality, in particular the sum of $49,944 plus interest.

4. The non-administrative costs of the Municipality in respect of this appeal, specifically only the costs of the engineer’s attendance at the hearing, shall form part of the cost of the drainage works.

5. There shall be no other order as to costs and all parties are responsible for their own costs.

Dated at Toronto, Ontario this 3rd day of August, 2015.

DISSENT OPINION

I concur with the decision of my colleagues in all respects except for the analysis and findings regarding the obligations of the Kawartha Region Conservation Authority (the “CA”) under section 6 of the Drainage Act (the “Act). I most certainly agree with the obiter comments and Order 1; however, I must disagree with my colleagues regarding Orders 2 and 3 above-mentioned, as follows:

• This is a Drainage Act project and a properly constituted hearing of the Tribunal under the Drainage Act - accordingly, this Tribunal has jurisdiction to decide on the cost allocation of what is essentially a section 6 environmental assessment, despite the request for same being made late; and

• The appeal of Darmar Farms Inc. should be granted and the CA should be assessed the entire cost of the environmental appraisal (EA), also referred to as an environmental impact study (EIS), in accordance with section 6 of the Act, plus any interest and HST that may apply.

I support these opinions with the following reasons.

1. Since 1976, the interests and concerns of Conservation Authorities and the Ministry of Natural Resources have been imbedded in the Drainage Act, specifically after much consultation by the Select Committee on Land Drainage that operated between 1972 and 1974. In fact, Conservation Authorities are mentioned in at least seven sections or subsections of the Act, including requirements for municipalities to notify them about proposed drainage works and meetings, and providing them with opportunities to appeal various issues to the Tribunal. More specifically, the Act only contemplates EA’s being done under section 6, which states

“Upon receipt of a notice from the initiating municipality under subsection 5 (1), a local municipality, conservation authority or the Minister of Natural Resources, as the case may be, may send to the council of the initiating municipality within thirty days a notice that an environmental appraisal of the effects of the drainage works on the area is required, and the cost thereof shall be paid by the party who requested it.”

Furthermore, in section 6 (3), the Act provides the requesting party the right of appeal to this Tribunal regarding the costs of the EA. If an EA is requested, section 10 requires that a Preliminary Report be prepared and, after consideration of the report, it gives the petitioners an opportunity to withdraw their names from the petition, and indicates how the costs to date will be allocated if the result is an insufficient petition, and expressly excludes the cost of the EA from that cost allocation, as the EA cost is to be paid by the requesting party. In addition, subsections 7 and 8 of section 10 allow the CA to appeal the content of the EA to this Tribunal and subsection 9 indicates that “…the Tribunal may confirm the environmental appraisal or direct that it be reconsidered in such respects as the Tribunal considers proper.”

Finally, section 85 of the Act provides for grants for municipal drainage projects, including “the total cost of preparing a preliminary report exclusive of the cost of preparing any benefit cost statement and any environmental appraisal” as that cost is to be paid by the party who requested it, as per section 6.

2. To the best of our knowledge, the Darmar-Tamlin Municipal Drain was properly petitioned under the Act and all required procedures were followed. Accordingly, the Darmar-Tamlin Municipal Drain is a project falling under the jurisdiction of the Drainage Act and this Tribunal; therefore, the rules and procedures of the Drainage Act apply and, as aforementioned, the interests and concerns of conservation authorities are well protected by that Act.

3. One of the procedures under the Act that considers the interests and concerns of conservation authorities is section 5 that requires an initiating municipality to immediately notify the local conservation authority of its intention to proceed with a new proposed drainage works. Of course, the intention of this notice is to allow the conservation authority the opportunity to immediately advise the municipality, the engineer and the landowners of any environmental concerns that may need to be investigated and/or addressed.

4. In this case, the City did properly notify the CA, in accordance with section 5 of the Act, by letter dated February 22, 2012. The subject lands were adequately described in the letter so that the CA could immediately identify that part of the affected watershed was within one of its regulated areas. In fact, the handwritten notes on the CA’s copy of this letter indicate that the proposal needed to be reviewed by the CA staff and that the CA wanted to be involved in the planning of the drain. In spite of this proper notice and immediate interest, the CA ignored the statutory timeline provided in section 6 and did not reply to the original notice nor did it attend the initial on-site meeting where it could have had early input to the project. The attendance of CA representatives at the initial site meetings would have improved their understanding of the issues and would likely have saved the cost of preparing the environmental appraisal and reduced the time required for this drainage works to be processed in accordance with the Act. The CA did not proactively pursue this issue until thirteen months later when it demanded that an EIS be prepared.

5. The two senior CA staff members who gave evidence indicated that they were ignorant of section 6 of the Drainage Act. It is very difficult to believe that this is the case when, combined, these two individuals have over 70 years of experience in resource management with the Ministry of Natural Resources and various conservation authorities and can be considered experts in their fields, especially since municipal drains are one of the very few programs that can legally affect watercourses anywhere in Ontario. Furthermore, Drainage Act projects are mentioned in at least four sections of the CA’s Plan Review and Regulation Policies that these gentlemen are entrusted to apply and enforce throughout the CA’s area of jurisdiction, so they should be very familiar with all aspects of the Drainage Act.

6. Having reviewed the findings of the $50,000 EIS, it is obvious that such an exhaustive investigation was not necessary here. As stated by the engineer, on page 11 of his report, “The EIS concluded that the impacts of the municipal drain are relatively minor in scale and most often can be fully mitigated or offset. The limited impacts that cannot be avoided or compensated for are typically inconsequential or temporary in nature.” As with most municipal drain proposals in the agricultural parts of Ontario, a morning walk-through by the appropriate CA staff, the engineer and his environmental advisor, and the municipal drainage superintendent could have quickly identified any significant environmental concerns, and an afternoon meeting to discuss how to mitigate and/or compensate for them, consulting the Design and Construction Guidelines for work under the Drainage Act, the Guidelines for Environmental Appraisals Under the Drainage Act, and the Drainage Act and Conservation Authorities Act Protocol, would likely have been sufficient for the engineer to prepare his initial work proposal, taking any environmental issues into consideration. This is just one of a number of ways that environmental concerns could have been addressed without, or before, spending $50,000.

7. An environmental appraisal, as referred to in section 6 of the Act, and an environmental impact study are one in the same, as was detailed in the Appellant’s Factum (tabs 2F and 3). Since 1979, Guidelines for Environmental Appraisals under the Drainage Act have existed. These were prepared by a joint committee of representatives of the Provincial Ministries of Natural Resources (3 representatives, one being from the CA Branch), Environment (1 representatives) and Agriculture and Food (2 representatives). When one compares the required contents of a Phase I and Phase II EA to the contents of the subject EIS, they are basically identical, again as illustrated in tab 3 of the Appellant’s Factum.

The CA claims that the engineer was preparing the EA under the Conservation Authorities Act, but the entire project was authorized under the Drainage Act and the studies are one and the same in content; therefore, the environmental study was a Drainage Act EA and not an EIS under the CA regulations. Upon reviewing the evidence in this matter, I find that the CA did in fact “request” the environmental study as their materials use “request” repeatedly.

Both the CA and the engineer admitted that they were not fully aware of section 6 of the Act or the Guidelines for Environmental Appraisals under the Drainage Act. Their ignorance is no excuse. If they had been properly informed, there would be no arguments here. If the engineer had been experienced in work under the Act, he should have advised the CA that their request was for an EA in accordance with section 6 and that the CA would have to pay for it. The engineer should have advised the CA that its concerns were to be addressed as contemplated by the Act, within the timelines stipulated therein.

8. The CA argument that it “…has no budgetary means to pay for the cost of such studies” really has no bearing on this decision and, therefore, should be dismissed.

9. Additionally, the CA should pay for the subject environmental study for the following reasons.

9.1 There is no provision in the Conservation Authorities Act that addresses costs of an EA, but there is in the Drainage Act, and the specific provisions regarding EA’s for municipal drains should prevail over the general provisions that do not speak to costs and municipal drains.

9.2 As submitted by the CA, the Legislature is presumed to know and account for the law at the time of enactment; therefore, in this case, the Legislature would have addressed the cost of an EA regarding municipal drains in the Conservation Authorities Act if it wanted to change the specific and express cost allocation and appeal provisions in the Drainage Act, and the presumption should be that the established specific process, with its cost allocation provisions, remains intact.

9.3 The interpretation by the CA and my colleagues could result in conservation authorities being able to circumvent the Drainage Act process by waiting more than 30 days to request an EA. An Act that specifically addresses the cost allocation of an EA should not be thwarted by the dithering of a public body. The fact that the CA did not request the study within 30 days, by this argument, compounds the problems associated with the excessive cost of this EA, as the Drainage Act process is ordered in such a way as to allow petitioners and other owners to know of possible environmental costs early in the process, with an opportunity to withdraw from the petition being provided before the engineer’s report is prepared. Allowing additional significant costs to be incurred late in the process, after the specific appeal and withdrawal opportunities have occurred, or should have occurred, alters the carefully constructed scheme of the Drainage Act.

9.4 One of the CA’s arguments is that there should be a strict interpretation of section 6 of the Act, that is, the CA did not request the EA within the 30 day time period after the section 5 notice, so it should not have to pay for the EA. This argument is based on the cost allocation of the study being a “penalty”; however, this payment obligation is an allocation of incurred costs and not a “penalty”. This argument would allow the thwarting of the process as above-mentioned in paragraph 9.3. Furthermore, resolving any interpretation issues in favour of the person or entity who has to pay is not an appropriate method to determine this kind of payment obligation, as is done in “penalty” cases, because someone or some entity involved in this process has to pay for the study.

As further obiter dicta in this matter, I have the following comments.

A. The inexperience of the engineer was a factor in this matter. When there was no initial response from the CA, he should have pressured the CA staff to determine if they did or did not have any concerns with this drainage proposal. If he had done so, all affected parties (the engineer, the landowners and the municipality) would have been aware of all concerns before any surveying and design were commenced and, perhaps, the co-operative approach described in item 6 above-mentioned could have been followed.

B. The indifference of the municipality was a factor in this matter. When there was no initial response from the CA, the municipal drainage superintendent should have pressured the CA staff to determine if they did or did not have any concerns with this drainage proposal. If this had been done, all affected parties (the engineer, the landowners and the municipality) would have been aware of all concerns before any surveying and design was commenced.

C. It is worthy of note that drainage projects have many aspects and, while in the distant past (prior to 1976) environmental concerns may have been largely ignored; the current and appropriate practice is to take into account all aspects impacting a drain. I am of the view that conservation authorities have an obligation under the Drainage Act to commit to timely and appropriate participation in the processes as set out in the Act. I do not deny that this municipal drain, and most new drainage projects, require a permit under the regulations of a conservation authority, but I do suggest that the best way to meet the requirements necessary to allow the issuance of a permit is by following the Drainage Act process and through communication and co-operation by all affected parties, that is, the CA, the municipality and the engineer, as above-mentioned in point 6.

D. I suggest that the Ministry of Agriculture, Food and Rural Affairs and the Ministry of Natural Resources and Forestry collaborate to harmonize their respective regulatory regimes, as they have done with respect to municipal drain maintenance projects.

Dated at Wingham, Ontario this 10th day of September, 2015.

ENDNOTES

Footnotes

1. 1Evidence Brief of Kawartha Region Conservation Authority, Vol. 1 Tab 3 C.
2. 2Agricultural Land Drainage in Ontario, Final Report of the Select Committee on Land Drainage; June 1974, Chapter II Law of Drainage – Past and Present; p.4. (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 1 (B).)
3. 3Ibid., p. 4.
4. 4Ibid.
5. 5Ibid., p. 5.
6. 6Ibid., pp. 5-6.
7. 7Ibid., p. 5.
8. 8Drainage Act, s. 6(1).
9. 9Guidelines for Environmental Appraisal Under the Drainage Ct, 1975; August 1979, submitted by a Joint Committee of the Ministry of Agriculture and Food, Ontario Ministry of the Environment; Ontario Ministry of Natural Resources, (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 1.)
10. 10Ibid., s. 8.
11. 11Ibid., s. 11.
12. 12Ibid., s. 9.
13. 13Ibid., s. 10.
14. 14Ibid., s. 10(2).
15. 15Inserted by the 1949 Act; as cited in The Revised (2013) Plan Review and Regulation Policies, Kawartha Conservation, p. 22. (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 2.)
16. 16Drainage Act, s. 6(3).
17. 17Ibid., s. 10(7).
18. 18Ibi.d, s. 45(1).
19. 19Ibid., s. 45(2).
20. 20Ibid., s. 47(1).
21. 21Ibid., s. 48(1)(a).
22. 22Ibid., s. 52(1) Court of Revision, and from the Court of Revision to the Tribunal s. 54(1).
23. 23Ibid., s. 49.
24. 24Ibid., s. 6(1), s. 85.
25. 25Agricultural Land Drainage in Ontario, Final Report of the Select Committee on Land Drainage; June 1974, Chapter VII, Petition Procedure; p. 39. (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 1 (B).)
26. 26Report: Policies and Procedures for Conservation Authority Plan Review and Permitting Activities, Ministry of Natural Resources, Excerpt: Conservation Authorities Act, Section 28; p. 1. (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 1 (A).)
27. 27Ibid.
28. 28Ibid., pp. 1-2
29. 29Conservation Authorities Act, s. 28
30. 30Kawartha Region Conservation Authority: Regulation of Development, Interference with Wetlands, and Alterations to Shorelines and Watercourses, Ontario Regulation 182/06.
31. 31Ibid.
32. 32Ibid., ss. 3(1)(3)(4), 4.
33. 33Approved March 28, 2012; Implemented July 1, 2012 and Revised August 1 2012. (As found in the Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 2.)
34. 34Evidence Brief of the Kawartha Region Conservation Authority, Vol. 1; tab 3 (C).
35. 35Ibid., , Vol. 3, tab A.
36. 36Ibid., , Vol. 3, tab 41.
37. 37Ibid., Vol. 3, tab 41 (A).
38. 38Ibid., Vol. 4, tab 44 (A).
39. 39Ibid,, Vol. 1, tab 5.
40. 40Factum of the Moving Party, Kawartha Region Conservation Authority, dated January 26, 2015, para. 6 & 43.
41. 41Ibid., para. 31-33.
42. 42Ibid., para.4.
43. 43Ibid., para. 35.
44. 44Ibid.,, para. 41.
45. 45Supplemental Factum and Book of Authorities of the Moving Party, Kawartha Region Conservation Authority, dated March 6, 2015, para. 19.
46. 46Factum of the Moving Party, Kawartha Region Conservation Authority, dated January 26, 2015, para. 49.
47. 47Ibid., para. 55.
48. 48Supplemental Factum and Book of Authorities of the Moving Party, Kawartha Region Conservation Authority, dated March 6, 2015, para. 5, 7, & 29.
49. 49See Factum of Darmar Drains, pp. 14-16 table.
50. 50Engineering Report, p. 11, para. 4.6, Environmental Impact Study.
51. 51Supplemental Factum and Book of Authorities of the Moving Party, Kawartha Region Conservation Authority, dated March 6, 2015, para. 30.
52. 52Alberta v McGeady, 2015 ABCA 54, leave to appeal to S.C.C. refused: http://www.scc-csc.gc.ca/case-dossier/info/sum-som-eng.aspx?cas=36334. Any grant of equitable relief made by an administrative tribunal should arise from some language in statute or regulation.
53. 53See Drainage Act, section 52-54.