Free v. County of Norfolk et al., 2017 ONSC 3571

CITATION: Free v. County of Norfolk et al., 2017 ONSC 3571

DIVISIONAL COURT FILE NO.: DC-17-791

DATE: 2017-06-06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATHESON, TRIMBLE and SHEARD JJ.

BETWEEN:

DAVID R. FREE

Appellant

– and –

THE CORPORATION OF THE COUNTY OF NORFOLK

– and –

DIETRICH ENGINEERING LIMITED

– and –

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

Appellant, in person

Mark Abradjian, for the Corporation of the County of Norfolk

Paul Courey, for Dietrich Engineering Limited

HEARD at Hamilton: June 6, 2017

MATHESON, J. (ORALLY):

Adjournment Request

1T­­­­­­­­­­­­­­he Appellant, Mr. Free, requests an adjournment. He makes this request because he received a courier package which he submits was delivered perhaps yesterday, but not found by him until today. At the request of the Court, he opened it to see what was in it in court this morning and confirmed that what it contained was the factum and authorities of the Respondent, Dietrich Engineering Limited. Both Respondents object to the request for an adjournment.

2This appeal is the subject of an order of Justice Parayeski, dated March 9, 2017. In that order, the Court set out a schedule for the delivery of materials for today, including required timetabling for both sides. The Appellant did not comply with the court-ordered schedule and delivered his material late. We are advised that it was served on April 24 rather than as required under that order.

3The timetable for the delivery of the Respondent’s material as required by the Court begins with the date of service of the Appellant’s material. It allows for a period of 40 days after that date, which would likely fall on the weekend, meaning Monday of this week, but our decision does not depend on it, should it fall on the Friday of last week.

4Leaving aside the authorities that are in the courier package, the Appellant received the factum of the Respondent Dietrich by email on June 1, which is Thursday of last week, and which is in compliance with the order of Justice Parayeski.

5Bearing in mind all the circumstances and the order of Justice Parayeski, we deny the adjournment request.

SHEARD, J. (ORALLY):

Background

6T­­­­­­­­­­­­­­he Appellant appeals from the decision of Acting Drainage Referee, G. Edward Oldfield dated December 23, 2016, denying him standing under the Drainage Act, R.S.O. 1990, c. D.17 1990.

7Section 47(1) of the Drainage Act provides:

47. (1) Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a notice of appeal shall be served upon the council of the initiating municipality within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.

8The Appellant has acknowledged that he is not the registered owner of 55 Gibson Street, Simcoe, Ontario, which is land affected by a drainage works. This property is owned by his wife, Joan Emily Free.

9The Appellant brings this appeal pursuant to section 121 of the Drainage Act, which permits an appeal to the Divisional Court from a decision of the Referee or Acting Referee.

10The specific issue on the appeal is the denial of standing to the Appellant.

Standard of Review

11The standard of review on this appeal is reasonableness. The reasonableness standard requires deference to the decision of the administrative decision maker, including on questions of law when those questions are within their core function and specialized expertise.

Analysis

12In his amended notice of appeal, the Appellant raises three grounds of appeal:

(i) that he has a right of appeal to the Drainage Referee, and that to restrict that right is a substantial violation of fairness and against the principles of the Protection of Public Participation Act, S.O. 2015, c. 23, s. 3 (the “PPPA”);

(ii) that he has a right of appeal as a spouse of the registered landowner and as a resident of the property directly affected by the proposed drainage works; and

(iii) that the Acting Drainage Referee did not have the power to dismiss the application while there were proceedings pending before the Divisional Court.

13I will deal with the Appellant’s second ground of appeal first. The Appellant submits that the Acting Drainage Referee committed two errors in denying the Appellant standing:

i) first, that he failed to accord him standing as an “owner” based on his status as the spouse of the registered owner; and

ii) second, that he should have given the Appellant standing as a former owner, and current resident and as someone who pays bills related to the property.

14The Acting Drainage Referee considered the Appellant’s argument that based on his status as a spouse, he is an “owner” for the purposes of the Drainage Act. The Acting Drainage Referee applied and followed the decision of Justice Emery in Murray v. Bortolon, 2016 ONSC 5164 when he determined that the provisions of section 21 (1) of the Family Law Act, R.S.O, 1990, c. F.3. did not create or transmit to the Appellant an ownership interest in the matrimonial home owned by the Appellant’s spouse.

15Despite that the Appellant had not filed any affidavit evidence to support his submissions, the Acting Drainage Referee also considered the Appellant’s argument that by residing in the home, paying bills or transferring property to further his estate plan created a “level of ownership” that would give the Appellant status to start an Appeal under the Drainage Act.

16The Acting Drainage Referee’s interpretation of “owner” is consistent with the interpretation given to that term by the Drainage Referee in Belzner v. Dunnville (Town), 1992 ONDR and with accepted principles of statutory interpretation (see: Greater Toronto Airports Authority v. International Lease Finance Corporation) (2004), 69 OR (3d) (C.A.), at para. 25)

17We conclude that the Acting Drainage Referee was reasonable in concluding that those actions did not make the Appellant an “owner” as contemplated by the Drainage Act.

18The first ground of appeal put forth by the Appellant relates to the PPPA. The PPPA amended three Acts: the Courts of Justice Act, the Libel and Slander Act, and the Statutory Powers Procedure Act. The aim of the PPPA is “to preserve the right of citizens to express themselves freely on issues of public interest and importance without being under the threat or spectre of court proceedings” (see 1704604 Ontario Ltd. v. Pointes Protection Association et al., 2016 ONSC 2884, at para. 25). The amendments brought about by the PPPA provide a process to dismiss claims brought against those who are speaking out in the public interest.

19We conclude that the PPPA has no application to the facts in this case.

20The third ground of appeal advanced by the Appellant was that the Acting Drainage Referee erred in refusing to stay Norfolk’s motion pending the completion of the Appellant’s appeal from the decision of Acting Referee Wright, then before the Divisional Court. The Divisional Court dismissed the Appellant’s appeal on February 6, 2017 on the basis that the orders made by Acting Referee Wright were all interlocutory, from which there is no right of appeal pursuant to section 121 of the Drainage Act. That decision is: Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909. The Acting Drainage Referee also considered the Appellant’s arguments under the PPPA and the Statutory Powers Procedure Act regarding a stay. The Acting Drainage Referee concluded that the Decision and Reasons of Acting Referee Wright dated September 1, 2016, showed that Acting Referee Wright was aware of the Appellant’s Divisional Court appeal when he granted Norfolk the right to bring its motion, that provisions of section 25 (1)(b) of the Statutory Powers Procedure Act applied, and that there was no stay.

21In conclusion, the Appellant has failed to demonstrate that the decision of the Acting Drainage Referee was unreasonable.

22Given this decision we need not deal with the additional arguments raised in the Dietrich factum.

23In oral submissions, the Appellant also submitted that section 47 of the Drainage Act contravenes the Canadian Charter of Rights and Freedoms and, specifically, is discriminatory. However, no Charter argument was made before the Acting Drainage Referee. No notice of constitutional question was given, as is required. As well, this is not a ground of appeal set out in the Amended Notice of Appeal. In these circumstances, we do not regard the issue of the constitutionality of section 47 of the Drainage Act as properly before us on this appeal.

Conclusion

24For all the foregoing reasons, we dismiss the appeal.

MATHESON, J. ENDORSEMENT:

Endorsement and Costs

25“Mr. Free’s request for an adjournment is refused for Reasons given orally. For Reasons also given orally, this appeal is dismissed. On costs, the Appellant shall pay $4,500.00 to Norfolk and $2,500.00 to Dietrich within 60 days of today. We are not persuaded that an order for prohibition should be made as requested by Dietrich in paragraph 20 (c) of his factum based on the record before us.”

Sheard, J.

Matheson, J.

Trimble, J.

Date of Oral Reasons for Judgment: June 6, 2017

CITATION: Free v. County of Norfolk et al., 2017 ONSC 3571

DIVISIONAL COURT FILE NO.: DC-17-791