ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Ayotte v. Stephen (Township)
1980 ONDR 1
1980-02-19
1980-01
STATUTE:
Drainage Act
HEARING:
BETWEEN:
RICHARD AYOTTE AND FRANCES AYOTTE
APPELLANTS
- AND -
THE CORPORATION OF THE TOWNSHIP OF STEPHEN
RESPONDENT
APPEARANCES:
BERNARD J. GOODAL - FOR THE APPELLANTS (CHATHAM)
MARK D. LERNER - FOR THE RESPONDENT (MESSRS. LERNER & ASSOC., LONDON)
REASONS FOR JUDGEMENT
This appeal to the Drainage Referee was set by Appointment to be heard on October 30, 1979 at the Court House in Goderich, Ontario, and was continued on November 15, 1979 at the Court House in Chatham. The Procedure Order signed by the former Drainage Referee, His Honour Judge Joseph P. McMahon, on May 6th, 1977 set out the time limits in which pleadings were to be exchanged.
The Petition for Drainage Works (to be known as the Martene Drainage Works) was filed with the Township of Stephen and was signed by three land owners. Two of the signatories were owners of land in the Township of Stephen, the other a land owner in the abutting Township of Hay. The area affected was described in the Petition as follows:
"Lot 16, Conc. N.B. Stephen Twp., Lot 23, Conc. 9, Stephen Twp., and Lot 15 and 16 Conc. S.B. Hay Twp."
The Appellants are husband and wife. They are the owners of one hundred acres of farmland described as Part of Lot 16, Concession 9 (South Boundary) in the Township of Hay. The Appellants' land is located immediately to the north of the Township of Stephen, separated by Highway #83.
No date for the receipt of the Petition was given in evidence, but the subsequent correspondence from the Clerk- Treasurer of the Township of Stephen would indicate that it was probably filed in February or early March, 1974.
It was agreed by Counsel that the Petition was filed with the Township of Stephen before the proclamation of the Drainage Act, 1975, S.O. c.79 and the applicable statute is therefore The Drainage Act R.S.O., c. 136 as amended.
The Township of Stephen on July 9, 1975 first adopted the report of the engineer, C.P. Corbett, P. Eng., O.L.S., which then became Provisional By-Law 75-39. On April 27, 1976 the Township of Stephen adopted an amended report dated April 12, 1976 and it thereby became Provisional By-Law 76-14. The Appellants' Notice of Appeal dated June 16, 1976, was filed by their solicitor with the County Court Clerk at Goderich, pursuant to Regulation 227, under The Drainage Act. It purports to attack the validity of the engineer's report under Section 36 of the Act.
Section 36 reads as follows:
"Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the ground that it does not comply with the requirements of this Act, or that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof, or that the drainage works should be modified, on grounds to be stated, may appeal therefrom to the referee, and in every such case a written notice of appeal shall be served upon the head of the council of the initiating
municipality or the clerk thereof within thirty days after the date of mailing of the copy of the provisional by-law under section 29, and
the referee may hear and determine the appeal in a summary manner on his own view of the premises and after hearing the parties, if he sees fit, their witnesses, or he may direct that the further proceedings on such appeal shall be as hereinafter provided in other cases of appeals to the referee and the referee on an appeal under this section may make such an order as appears just. 1962-63, c.39, s. 35."
It should be noted that before an aggrieved land owner may attack the validity of the engineer's report, he must first comply with the procedural requirements of Section 36. The Appellants contend that they gave the required notice of appeal required by Section 36 by a letter dated May 26, 1976 (Exhibit #29). This letter is alleged to have been delivered by the Appellants to the Clerk-Treasurer of the Township of Hay. The Appellants filed with the court what they contended was a receipt (Exhibit #35) signed by the Clerk-Treasurer which reads as follows:
"Received from Richard Ayotte and Maurice Klumpp an appeal against the Martene Drainage Works, this 1st day of June, 1976 - Wayne Horner - "
After carefully considering all of the evidence, I have concluded that their letter, Exhibit #29, was filed with the Clerk-Treasurer on June 1, 1976. If, however, their letter was intended to be an appeal to the Drainage Referee, it must be properly filed within thirty days following the mailing of a copy of the provisional by-law under Section 29. Though I am unable to conclude from the evidence whether the letter of May 26, 1976 was or was not filed within the proper time limit, it is not this procedural requirement I find fatal to the Appellants' case.
There is evidence from the Clerk-Treasurer of the Township that following the April 27, 1976 meeting he mailed out copies of By-Law 76-14 provisionally adopted by the Township of Stephen, but I am unable to conclude exactly to whom they were sent and when. Section 29 is intended to provide affected land owners with notice of the provisional by-law, which includes what is to be appealed, the appeal procedures to be followed and the time limits for filing the appeal, whether to the Court of Revision or to the Drainage Referee.
Counsel for the Appellants argued that there was no evidence before this court that Section 29 had been complied with. He suggested that if that were so, the thirty day limitation period required by Section 36 had not yet begun to run, and therefore there would be no jurisdiction in this court to hear this appeal. In that case, his Notice of Appeal under Regulation 227 that brought this matter to trial is pointless, but in the view I take of this matter, his clients did have sufficient knowledge of the passing and of the contents of Provisional By-Law 76-14 in that formal notice was not essential.
The Appellant Mr. Ayotte, received a letter from the Township of Hay dated June 26, 1975 (Exhibit #18), informing him that the engineer's report on the Martene Drainage Works would be "presented to ratepayers" on July 9, 1975 and since his "lands are affected by the report, we would be pleased if you would attend this meeting" at the Township of Stephen Municipal Office. The letter informed them what the amounts of their assessment to be, namely for Benefit $325.00 and for Outlet, $1125.00. It is not clear that the Appellants attended this meeting. The Township of Stephen would not give the Provisional By-Law 75-39 a third reading until they were satisfied that those affected in the Township of Hay were also satisfied with the report (Exhibit #9). By letter, on September 4, 1975, (Exhibit #30), the engineer stated that he met with the Appellant Mr. Ayotte and others at the site on July 31, 1975. The letter reads as follows:
"Addressed to: The Reeve and Council Township of Stephen Re: Proposed Martene Drain
I attended a site meeting on this drain on July 31st in company with the Reeve and Members of Hay council, representatives of the Ministry of Transportation and Communications, representatives of the Ministry of Agriculture and Food, and Messrs. Klumpp, Ayotte and Ford, affected owners in Hay Township.
Mr. Klumpp and Mr. Ayotte wished to know if the Main Drain could be extended under Highway 83 to the north side of the road allowance, and if it could be extended, the approximate increase in each of their assessments.
This is in reply to their request for information. I believe the drain could be extended through the Highway if a request were presented to the Township of Stephen.
If the drain were extended through the Highway, I estimate the increase in assessments would be approximately $960 to Mr. Ayotte`s land and $260 to Mr. Klumpp's land.
Mr. Klumpp also wished to know the difference in elevation between ground level in a low area about 1200' from the highway, and the proposed drain crossing the highway. The drain invert at the highway would be approximately 5.8 feet below ground elevation in the low area.
All of which is respectfully submitted;
C.P. Corbett, P. Eng.
c.c. Hay Twp (including copies for Ayotte & Klumpp)"
The original report dated the 16th of June 1975, had proposed that only the Branch Drain be carried under Highway #83. Mr. Ayotte was enquiring as to the feasibility of carrying the Main Drain under Highway #83, and as to the assessment against him for doing so. A copy of that letter (Exhibit #30) appears to have been sent to him. It is difficult not to believe Mr. Ayotte was fully aware of Provisional By-Law 75-39 which included instructions as to the appeal procedures. In any event, the Township of Hay by letter of December 23, 1975, (Exhibit #25) asked the Township of Stephen to consider providing an outlet for underground drainage for their ratepayers. The Township of Stephen therefore referred the original report back to Mr. Corbett to consider the Main Drain crossing under Highway #83 which resulted in the amended report of April 12, 1976. This report was submitted to the Township of Stephen and on April 15, 1976, the municipality sent to the Township of Hay several letters indicating the assessments to be levied against affected owners in the Township of Hay. This letter further stated a meeting would be held on April 27, 1976 to consider the report. Council of the Township of Stephen on that date adopted the amended report which then became Provisional By-Law 76-14. The Township of Hay in turn wrote the Appellant Mr. Ayotte on May 3, 1976 and each of his immediate neighbours, (Exhibit #21), advising them that the Township of Stephen had adopted the engineer's amended report, and, that if they wished to attend a meeting at the Township of Hay on May 17, 1976 to discuss any part of this drainage scheme, they could do so. It is difficult to entertain any notion that the Appellants were not fully abreast of every step in the proceedings.
The Township of Hay did in fact adopt the amended report of May 17, 1976 with a recommendation that the Main Branch crossing of Highway #83 be deleted contrary to their previous request (Exhibit # 15). Such a change in the report would of course reduce the assessment for Mr. Ayotte which apparently is what he was seeking when he attended at the Municipal Office of the Township of Hay on May 17, 1976, which resulted in the following letter (Exhibit #23) being written to the Township of Stephen.
"Addressed to: The Township of Stephen Box 99, Goderich, Ontario Attention: Mr. W. Wein Re: Martene Drainage Works-1976
The Council of the Township of Hay presented the above mentioned drainage report to the Hay Township ratepayers involved on May 17th, 1976.
Mr. Richard Ayotte was present at the meeting and objected to the Main Drain crossing Highway #83.
After a lengthy debate, it was the decision of Council, that the Engineer's Report on the Martene Drainage Works be adopted, with the following recommendations.
"That the Highway #83 Road Crossing on the Main Branch be omitted, and the benefit assessments for this work be reduced accordingly."
We would be pleased, if you would bring this matter to the attention of your Council at your Court of Revision.
W.C. Horner, Clerk-Treasurer Township of Hay"
All of the foregoing circumstances lead me to the conclusion that the Appellants' intentions throughout were to reduce their assessments in the event the Main Drain was ultimately extended. The Appellants were faced with a new assessment totalling $2410.00 as compared with $1450.00 under the original report. On May 26, 1976, the Appellants wrote the letter (Exhibit #29) addressed to Council of the Township of Hay which I have already concluded was delivered on June 1, 1976. The letter reads as follows:
"Addressed to: Hay Township Council Re: Martene Drainage Works
We being owners as shown by the last revised assessment roll of lands in the Township of Hay, do hereby make an appeal of the drainage works, namely the Martene drain and the branch of same, in the area more particularly described as follows.-
Lot 16, Conc. S. Boundary Hay Twsp. Huron County
We being owners do object to the increased cost of the main outlet across Highway #83 brought about, by the second report, also the fact that we being owners of said land we were not notified of the intent of council to initiate such an outlet.
Also as the branch of the Martene Drain has no direct benefit to the lands on Lot 16 S.B. Hay Twsp. as this land is presently artificially drained by means of 2-6" field tile. We object to any benefit assessment imposed on us.
You previously agreed in the spring of 1975 when we discussed this matter on 8-9 concession Hay Township that we should be exempt from the Martene watershed.
Richard Ayotte Frances Ayotte"
On June 15, 1975 the Clerk-Treasurer of the Township of Hay wrote (Exhibit #24) to the Township of Stephen as follows:
"Addressed to: Township of Stephen Box 99, Goderich, Ontario Attention: Mr. Wilmar Wein Re: Martene Drainage Works
Please be advised, the Council of the Township of Hay, received an appeal from Richard Ayotte and Maurice Klumpp, regarding their assessment on the Martene Drainage Works.
The Court of Revision on the above mentioned drain was held on June 14th, 1976 and the appeals received were rejected. Council is of the opinion, that the Engineer's report is a fair report and the work should be completed.
For your information, we expect an appeal, to the County Judge as a result of the Court's decision.
W.C. Horner, Clerk-Treasurer Township of Hay"
There can be no doubt that the Appellants' letter of May 26, 1976 was one of the two appeals referred to by the Clerk-Treasurer of the Township of Hay in his receipt of June 1, 1976, (Exhibit #35) and that those two appeals were the same ones that were rejected by the Court of Revision as stated in Exhibit #24. The Appellants simply were not happy with the amount of their assessment and openly objected and made their views known at the May 17, 1976 meeting at the Township of Hay. This was followed by their appearance at the Court of Revision of June 14, 1976 when their appeal was heard and rejected over their protests. I have no doubt that their attendance at the Court of Revision was a manifestation of their intention to appeal, not to this court but to the Court of Revision under Section 31(1) of the Act. Their decision to convert their letter of May 26, 1976 into a notice of appeal to this court under Sec. 36 was an afterthought. I cannot believe that had the Appellants been successful before the Court of Revision of June 14, 1976 they would have filed a Notice of Appeal to this Court as they have done later. There is nothing in my view, in the Appellants' letter of May 26, 1976, that indicates to me an intention to appeal anything but their assessment which they did. A written appeal must reasonably define what is being appealed, otherwise municipal Councils would not know if they should move ahead with the drainage scheme, or hold it up because of objections. In the case before me the Township of Hay believed the Appellants were appealing assessment only and communicated this to the Township of Stephen. First, at the meeting of May 17, 1976 (Exhibit #23) and the Appellants subsequent attendance at the Court of Revision (Exhibit #24).
In a somewhat similar case, A. Fraser and The Corporation of the Township of Charlottenberg, July 13, 1970, former Drainage Referee His Honour Judge Joseph B. McMahon said at page 5 –
"It is admitted, I think, that there is nothing in this letter that would indicate clearly to the officials of the Township, that Mr. Fraser had formulated the intention of appealing their decision to the Drainage Referee."
Whether an appeal is made to the Court of Revision under Section 31(1) or to the Drainage Referee under Section 36, it must be by written notice served on the Clerk in the one instance and on "the head of Council or the Clerk" in the other. The one written notice of appeal can hardly serve two purposes unless it expressly says so.
Though I am unable to conclude that Section 29 was strictly complied with by the Township of Stephen following the passing of Provisional By-Law 76-14, I believe the Appellants were aware of all the steps taken by the Township of Stephen and the contents of the Provisional By-Law. Full compliance with Section 29 is not always necessary even if formal notice has not reached the Appellants. See: Re - White and The Corporation of the Township of Sandwich, 1882, O.R. 530. In these instant circumstances, there was never a complaint by the Appellants they were not aware of the contents of the Provisional By-Law 76-14 of the Township of Stephen
I do not wish to be understood as saying Section 29 need not be complied with; its failure alone may be fatal to the proceedings in the absence of other circumstances. Laymen are not expected to understand the meticulous requirements of statutes. So long as an aggrieved landowner shows an intention to appeal to this court and not to any other body on grounds which the Drainage Referee has jurisdiction to hear, the merits of his case will be dealt with. But once he has made his wishes known, he should not be permitted to change direction at a later date because he was unsuccessful in another court at an earlier date. In these circumstances therefore, the appeal shall be dismissed.
I might add that during the first day of the trial, the solicitor for the Respondent brought an application to have the Appellants' case dismissed for failure to serve the clerk or head of Council of the initiating township. There is no doubt that the Township of Stephen is the initiating municipality as it is the municipality charged with the responsibility of carrying out the requirements of the Drainage Act. They are the municipality with which the Petition for Drainage Works was filed. That being so, and having imputed knowledge throughout to the Appellants of the full contents of the Provisional By-Law 76-14 of the initiating municipality, their failure to follow the appropriate procedures laid down in Section 36 by serving the clerk or head of Council of that initiating municipality would, by itself, have been fatal to the Appellants' case.
As the cost of the drainage works was estimated at $32,375.00 the Appellants should pay the Respondent their taxed costs on a Supreme Court scale. I fix the fees for the two engineers called by the Respondent at $200.00 each.
DATED at Newmarket, this 19th day of February, 1980
William D. Turville Drainage Referee