Court File and Parties
CITATION: Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909
DIVISIONAL COURT FILE NO.: DC 15/690 DATE: 2017-02-06
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
DAVID FREE Appellant
– and –
THE CORPORATION OF THE COUNTY OF NORFOLK Respondent
– and –
DIETRICH ENGINEERING LIMITED Respondent
David Free, Self-Represented Appellant Mark Abradjian, for the Respondent, The Corporation of the County of Norfolk Paul Courey, for the Respondent, Dietrich Engineering Limited
HEARD at Hamilton: February 6, 2017
Oral Reasons for Judgment
SPIES J. (Orally)
[1] At the outset of this hearing Mr. Free advised us that a correction should be made to paragraph 1 of his Factum where he states that he resides at the address in Simcoe and is a joint property owner with his wife Joan Free, within the same municipal address. Mr. Free has advised us that in fact since 2013 or 2014 his wife has been the sole owner of that property. Section 47 of the Drainage Act, R.S.O. 1990, c. D.17 specifies that only an owner may pursue an appeal to the referee. Thus there is a real issue as to whether Mr. Free has standing on this appeal. Nevertheless, we have considered the relief that he seeks and I will review that since he did not mention all of that in his oral submissions.
[2] Mr. Free seeks the following relief before us:
(1) an order dismissing the November 16th, 2015 order of Acting Referee Wright, which dismissed the motion for the recusal of the Acting Referee;
(2) an order dismissing the October 13th, 2015 order of Acting Referee Wright, which was the order adding Dietrich Engineering Limited (“Dietrich”) as a party to the proceedings;
(3) an order to remove Acting Referee Wright from the current Drainage Referee proceedings; and
(4) an order staying the Drainage Referee proceedings and advancing the Drainage Tribunal proceedings.
[3] The first three claims for relief all seek to set aside orders made by Acting Referee Wright. All of these orders are interlocutory, in that they do not determine the real matter in dispute between the parties. The merits of the appellant’s appeal to the Court of the Drainage Referee has not been heard. Section 106(3) of the Drainage Act states that “The referee has jurisdiction to entertain and dispose of any interlocutory application relating to any matter otherwise within his... jurisdiction and his... order thereon is final”. The appeal rights under section 121 of the Act do not apply to interlocutory orders.
[4] With respect to the fourth claim for relief; the order staying the Drainage Referee proceedings and advancing the Drainage Tribunal proceedings, the decision of the Acting Referee to not stay the Drainage Referee proceedings is also interlocutory. No appeal of that order can be made at this time. The specific relief sought by the appellant is an order not only staying the Drainage Referee proceedings, but also advancing the Drainage Tribunal proceedings. The appeal to the Drainage Tribunal has been brought by Mr. Free’s wife. He has no standing to seek this relief. In any event, it is up to the Drainage Tribunal to determine its own procedures and practices, and for that I refer to section 25.01(a) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22.
[5] Mr. Free, in his submissions, has been clear that this is not a judicial review application, but rather an appeal. Even if it were, the application would be dismissed on the grounds of prematurity.
[6] Finally, Mr. Free was clear that his main complaint is the fact that Acting Referee Wright heard and decided his own recusal motion. According to Mr. Free, this process was inherently unfair. We disagree. The process that the Acting Referee followed was in accordance with the usual practice of decision-makers faced with recusal motions.
[7] For these reasons, the appeal is dismissed.
Costs
[8] For reasons given orally by Spies J., this appeal is dismissed. As the successful parties, the respondents are entitled to their costs of this appeal. We fix the costs of the respondent, County of Norfolk, at $5,000.00 inclusive of disbursements. With respect to the respondent Dietrich, as a party they were entitled to be served with and participate in this appeal. The factum they filed was very brief and largely just adopted the submissions of the respondent County. Thus, we fix their costs at $2,000.00 all-inclusive.
___________________________ Spies J.
I agree
Sachs J.
I agree
Stewart J.
Date of Reasons for Judgment: February 6, 2017
Date of Release: February 8, 2017
CITATION: Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909
DIVISIONAL COURT FILE NO.: DC 15/690 DATE: 2017-02-06
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
DAVID FREE Appellant
– and –
THE CORPORATION OF THE COUNTY OF NORFOLK Respondent
– and –
DIETRICH ENGINEERING LIMITED Respondent
ORAL REASONS FOR JUDGMENT
Spies J.
Date of Reasons for Judgment: February 6, 2017
Date of Release: February 8, 2017