ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Reynolds v. Flos (Township)
1982 ONDR 2
1982-02-17
1982-02
STATUTE:
Drainage Act
HEARING:
BETWEEN:
1981-12 -14
PERCY J. REYNOLDS
APPELLANT
-AND-
THE CORPORATION OF THE TOWNSHIP OF FLOS
RESPONDENT
APPEARANCES:
JOHN G. HERLIHY, ESQ. - for the Appellant
(Messrs. Corbett, Montgomery & Associates, Newmarket, Ontario)
IAN J. ROWE, ESQ. - for the Respondent
(Messrs. Boys, Seagram & Rowe, Barrie, Ontario)
REASONS FOR JUDGEMENT
THIS APPLICATION was heard on December 14, 1981 at the Court House in Newmarket, Ontario.
The only notice of Appeal filed by the Appellant with the County Clerk was dated February 13th, 1978 and filed on February 21st, 1978. The Respondent entered an Appearance to it on February 22nd, 1978. The Procedural Order was signed by me on March 17th, 1981; provided that in lieu of exchanging pleadings the parties had agreed upon an "Agreed Statement of Facts", and further that the Drainage Act, R.S.O. 1970, Chapter 136 should apply in this case.
There was a somewhat unusual step taken by the Appellant himself before he retained counsel. The Appellant wished to quash By-Law 6-76 of the Respondent Township. The By-Law had received third reading on June 14th, 1977, and had been authorized by the Respondent pursuant to Section 51 of the 1970 Act.
The Appellant had purported to file a Notice of Intention to Quash By-law 6-76 by registered mail on August 4th, 1976 (Exhibit "L") addressed to the Clerk-Treasurer. The Council had only provisionally adopted By-law 6-76 on June 22nd, 1976, and, as I said earlier did not receive its third reading until June 14th, 1977. Regardless of whether the 1975 Act (Section 58) or the 1970 Act (Section 44) applied, such Notice of Intention to Quash the By-law was premature and a nullity (City of Niagara Falls vs Township of Niagara, 1976 - 1.O.R. 96 at 99).
On June 23rd, 1977, after the By-law had received third reading, the Appellant launched a new attack in his efforts to quash the By-law also under Section 44 of the 1970 Act. This Notice was delivered to the Clerk-Treasurer of his intention to make an application to quash the By-law passed 10 days earlier.
Section 44 prescribes two time limits, the first that notice be served within ten days; this time limit has been complied with. The second time limit imposed by Section 44 requires the Appellant to bring his Application to quash to the Drainage Referee within three months after the passing of the By-law. The actual Hearing need not be held within the three months period providing the Application is made within that time frame. In the situation before us, the Appellant sent his purported Notice of Appeal dated September 9th, 1977 (Exhibit "D") by ordinary mail to the then Drainage Referee, His Honour Judge Joseph P. McMahon. He acknowledged its receipt to the Appellant on September 27th, 1977. Judge McMahon's reply to the Appellant on September 27th, 1977 reads as follows:
"September 27, 1977
P.J. Reynolds
27 Lingarde Drive
Scarborough, Ontario
M1R 1X7
Dear Mr. Reynolds:
Re: Township of Flos - By-law 6-76
Phelpston Marsh Municipal Drain
I acknowledge receipt of your letter dated September 9th, which I am regarding for the purpose of this correspondence as an Appeal to the Drainage Referee pursuant to the Drainage Act, 1975. Regulation 227 of the Act which has continued in force, requires you to file your Notice of Appeal in the office of the Clerk of the County Court in which the municipality is located. The municipality would then file an Appearance to the Notice of Appeal. The appellant and the municipality may then apply to the Drainage Referee for a Procedure Order setting forth the method of proceeding in this case and normally fixing a date for the hearing.
In most instances the Procedure Order can be agreed upon by the solicitors for both parties. I do not know if you have retained anyone to act for you in this matter. If you have then please have him contact me directly.
Sincerely yours,
"Joseph P. McMahon as per k.c."
Joseph P. McMahon
Drainage Referee
JPM:kc
c.c. W.M. Turner
Clerk of the Township of Flos
Box 278, Queen Street E.
Elmvale, Ontario"
It is apparent that His Honour was directing the Appellant to the Rules of Practice and Procedure to be followed in all Proceedings before the Referee as set out in Regulation 227 under The Drainage Act. That Notice was never filed with the Clerk of the County Court. The Appellant's failure to adhere to Regulation 227 must inevitably lead the Municipality into a false sense of security that no Appeal was being pursued. There was, of course, no duty on Judge McMahon to forward the Notice of Appeal to the County Court Clerk. Rule 4 of Regulation 227 reads as follows:
" 4. Every notice instituting proceedings before the referee shall be filed in the office of the county court clerk, O. Reg. 405/68 s.4."
It must be the Appellant's decision alone not to so file.
I am accordingly of the view that the Application to Quash the By-law as sent on September 9th, 1977 to Judge McMahon, not having been filed in the office of the County Court Clerk, is not a valid Application to Quash within the meaning of Section 44.
This leaves us with the Notice of Appeal filed February 13th, 1978, some five months beyond the second prescribed time laid down in Section 44 to bring the Application before the Court.
The decision of this Referee dated November 21st, 1979 "In The Matter Of The Drainage Act, R.S.O. 1970 Chapter 136, and amendments, And In The Matter Of The Short and 2-A Municipality Drain And The Short Drain Repair And Improvement, 1978 In The Township Of Mariposa, In The County Of Victoria", at Page 3:
"It was urged that I extend the time to allow an application brought before me under Section 44. In my view there is no authority in the Act for the Drainage Referee to authorize such an abridgement. On the contrary, such a power to extend time limits "when he considers it proper" was expressly granted to the Drainage Referee under Section 112 Drainage Act 1975, c.79. Its absence from the 1970 statute is accordingly significant of the legislature's intention."
However, at the outset of this Application I required the Appellant's solicitor to show cause why he should not restrict his argument to those matters raised in the Notice of Appeal of September 9th, 1977 that fall within this Court's jurisdiction and not to those issues raised in the Notice of Appeal of February 13th, 1978 as the latter was out of time. I subsequently ruled that the Appellant should be restricted to those matters raised in the Notice of Appeal of September 9th, 1977. I have now ruled on the validity of that Appeal.
It is noted that the Statement of Claim dated February of 1978 was neither filed with the County Court Clerk in Barrie nor did it comply with my Procedural order dated March 17th, 1981 and is therefore not to be considered in these proceedings. On December 17th, 1980 the Appellant changed solicitors to his present counsel.
The Appellant's solicitor urged upon me that the jurisdiction of the Respondent to pass By-law 6-76 was conditional upon its compliance with certain statutory requirements set out in the Act. These requirements were condition precedent to the conferring of jurisdiction upon the Respondent. Their absence must invalidate the By-law. There is ample authority to support this proposition.
However, at the hearing I ruled that the Notice of Appeal of February 13th, 1978 was beyond the prescribed time limit required by Section 44, to bring an Appeal to the Referee.
It must be noted that Mr. Proctor's text on the Drainage Acts, Ontario at Page 87 states:
"And accordingly it has been held on numerous occasions that notwithstanding the provisions of this section, a by-law which has failed to comply with those statutory requirements which are necessary to confer jurisdiction upon the initiating municipality, is subject to collateral attack, and to be treated as a void proceeding after the time limited for moving to quash has gone by."
He cites various authorities in support of this proposition.
In addition, I must take cognizance of the Municipal Act, R.S.O. 1970, Chapter 284, Section 286 which reads as follows:
"286. An Application to quash, in whole or in part, a by-law, except a money by-law registered under section 300, shall not be entertained unless made within one year after the passing of the by-law, but, if the by-law required the assent of the electors and was not submitted for or did not receive such assent, the application may be made at any time. R.S.O. 1960," c.249. s. 280."
On October 7th, 1974 a motion was passed by Council for the Respondent Township as follows:
"That the Council refer the Phelpston Drainage By-law back to the Engineer, before the third reading, for a complete reassessment and improvement recommendation re area of quick sand an Lot 10, Concession 4."
It is to be noted that Council was asking for direction from the engineer appointed by them to reconsider the matter from two points of view:
(a) Complete reassessment
(b) Improvement recommendation
In his reply of January 29th, 1976 (Exhibit "A") the engineer refers in his opening paragraph only to the "complete reassessment" and not to the "improvement recommendation". The engineer thereupon proceeded further to report, as he states, "under Section 51 of the Drainage Act". A thirty-three hundred foot, "10th Sideroad Branch", was added by the engineer for the purposes of pro-rata reassessment under Section 51 "although not a part of the original drain". The engineer's letter dated January 29th, 1976 states in part:
"For the purpose of distributing the cost of maintenance, the drainage system has been divided into sections. Hence, whenever maintenance is required on a specific section, the cost of the maintenance shall be charged as proportioned in the attached Schedule of Maintenance Assessment for the particular section. The drainage system sections are:
Outlet Section - 4th Line to Madden Creek (2600 feet)
Main Drain - Madden Creek to 5th Line (3200 feet)
McElwain-Robertson Branch (11,400 feet)
Dwinnel-Elliot-O'Neill Branch - 5th Line to Sixth Line (5500 feet)
Dwinnel-Elliot-O'Neill Branch - 6th Line to Upstream End (5700 feet)
10th Sideroad Branch (3300 feet)
The last section, the 10th Sideroad Branch, although not a part of the original Drain, shall now be considered part of the Phelpston Marsh Drain and shall be maintained as part of said Drain and the cost of maintenance shall be distributed as set out in the attached Schedule of Maintenance assessment."
The notices sent out by the Township (Exhibits G-1, G-2, G-3) as required by Section 24(2) to all affected owners refer to the proposed by-law as being pursuant to Section 51, thereby compounding the engineer's erroneous assumption that the By-law was being passed pursuant to that Section. Likewise the recitals in By-law 6-76 refer only to the "changing conditions which justify a reassessment" under Section 51(1). Section 51(1) states as follows:
"51.-(1) The council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance of the drainage works may make an application to the referee, of which notice has been given to the head of every other municipality affected by the drainage works, for permission to procure a report of an engineer to vary the assessment, and, in the event of such permission being given, such council may appoint an engineer for such purpose and may adopt the report, but, if all the lands and roads assessed or intended to be assessed lie within the limits of one local municipality, the council of that municipality may procure and adopt such report without such permission."
I read Section 51 of the Act to mean that a municipality has the right to vary the original assessment when "conditions have changed or circumstances have arisen such as to justify a variation of the assessment ..." The engineer is, in my view correct that "usage" of land is a change in condition and circumstances, such as to justify this variation is assessment. I interpret this phrase to mean that some lands not originally assessed for the drainage construction under the provisions of this Act or any predecessor of it, could now be assessed should the report indicate that the conditions have changed in such a way that new lands become liable to assessment which had not been within the original construction. This could come about by a change in the natural runoff of water, a reclaiming of wetlands, construction of an abutting subdivision or by some other physical factor. Some lands, for example, might receive a benefit from the scheme after construction and would therefore not have been previously assessed. Others, liable before construction, may be liable for a lower assessment or, perhaps even for no reassessment at all. In my view Section 51 permits the Respondent upon a report to vary the assessment of the original drainage works, but does not authorize any further or new construction. The varying of the original assessment must therefore be restricted to the municipal scheme in existence prior to the reassessment. In addition, the 10th Sideroad Branch, as I read the engineer's letter attached to the By-law, shall be maintained under new assessment (Exhibit "A"). There is no evidence before me to indicate this Branch was in existence prior to By-law 6-76, or formed part of any other municipal drainage scheme. In fact, paragraph 6 of the Agreed Statement of Acts confirms this. As well, my notes indicate that the Respondent's solicitor in arguing another issue indicated that the work had not yet begun on the 10th Sideroad Branch. One cannot, by the very definition of the word "maintenance" do repairs on a drainage system not previously included in any by-law under the Act or a predecessor of it. Section 1(l) interprets maintenance as follows:
"maintenance - the preservation and keeping in repair of a drainage works:
A reassessment can be made only for the purpose of maintenance, within that definition.
I am therefore of the opinion that By-law 6-76 as enacted, has as its object not only to reassess the lands in the existing system, but in addition, new construction within the existing scheme contrary to the intention of Section 51. There is no doubt that the Township has acted in the best interest of the owners and no bad faith can be attributed to it. Other matters were raised by the Appellant's solicitor such as the deficiency in the notice required under Section 24(2). It is not necessary in the circumstances for me to deal further with those matters.
I find that the Township lacked the authority under Section 51 to pass this By-law and in exercise of the authority given to the Referee under Section 73 I find that the By-law is invalid and must be quashed by virtue of Section 44.
No viva voce evidence was led before me and no allowances can accordingly be made for engineering evidence. In the circumstances each party shall be responsible for its own costs.
DATED at Newmarket, Ontario this 17th day of February, 1982
William D. Turville, Q.C.,
Drainage Referee