ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Finch v. Roxborough (Township)

1984 ONDR 1

DATE OF DECISION:

1984-04-11

1984-1

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF FINCH AND ARNOLD HAKVOORT

APPLICANTS

• AND –

THE CORPORATION OF THE TOWNSHIP OF ROXBOROUGH

RESPONDENT

REASONS FOR JUDGMENT

This is an appeal pursuant to Section 15 of Regulation 247 under The Drainage Act, R.R.O. 1980. The solicitors waived the usual Procedure Order. As well, there were no cross examinations of persons who had filed affidavits in support of this application. I therefore required each solicitor to file memorandums of fact and law. On consent, the motion was returnable in the City of Ottawa. Accordingly, I set the Appointment for January 30, 1984.

The Payne River Municipal Drain and two of its branches appear to be old petition drains, constructed originally in the early 1900's. The Respondent is the initiating municipality. The old petition drains outlet in the Township of Finch. As well, three new drains appear to have been initiated under Section 4 of the 1975 Act. For the purpose of disposing of this application, it is irrelevant that all or part of the works contemplated now in this engineer's report were authorized by Section 4, and/or Section 78 of the 1980 Drainage Act. I might add, that the date of the filing of the petition dictates the legislation which govern these proceedings. Though the application before me was brought under The Drainage Act 1980, c. 126, all references shall be to the S.O. 1975 Drainage Act, c. 79 (See decision of Divisional Court, 1980 In The Matter of The Short and 2-A Municipal Drain and The Short Drain Repair and Improvement, 1978, In the Township of Mariposa in the County of Victoria). There are a few changes in the legislation, but for our purposes are similar.

The meeting to consider the engineer's report was held on February 17, 1983. It was adopted on February 18, 1983 as provisional by-law 878.

There was no third and final passing of this provisional by-law.

The solicitor for the Appellants, urged that the Respondent Township acquired the authority from Section 42. In his submissions, the Township's non-compliance with part of that section was a condition precedent to its authority to act. Therefore, the provisional by-law is voidable. In particular, the solicitor alleged interested persons who had signed the petition, or their agents, had not been given an opportunity by council to withdraw their names from that petition. He further contended, that by virtue of the 1975 Drainage Act, there had been a significant departure from previous legislation, in that the Referee now possessed the jurisdiction to quash provisional by-laws. Finally, the Appellants knew they must overcome the decision of Referee Clunis in City of Niagara Falls v. Township of Niagara, 1 O.R. 1967 at 96. This established the principle that there was no right under The Drainage Act (R.S.O. 1962-63, c. 39) to move to quash a provisional drainage by-law and to do so was premature. Mr. McClelland, solicitor for the Appellants, was of the opinion that the Court of Appeal decision in McDougal et al v. The Township of Harwich, (1945) 1945 CanLII 124 (ON CA), O.R. at 291, a judgment of Gillanders J.A., was contrary to the Niagara rule. It appears to me that the success of the Appellants' application to deal with it on its merits, rests with the interpretation of that decision. In his view, any interested ratepayer had the right to move to quash the provisional by-law before it was finally passed.

The solicitor was unable to explain why the McDougal decision had not been argued in the Niagara case. He did agree with me that there was some ambiguity arising from the McDougal report, as to whether of not the final by-law had been passed. Mr. Cosman, the solicitor for the Respondent Township, relied on the principle enunciated in the Niagara decision. He urged that the part affecting the Payne River Municipal Drain and two of its branches, were not petition drains but were authorized under Section 78 of the Act. Consequently, Section 42 did not apply. In support of this, he filed the affidavit of Alex J. Graham the engineer who prepared the adopted report. Mr. Graham was of the view that the new petition drains under section 4 of the 1975 Drainage Act did not affect the Appellants, as they owned no lands within the area requiring drainage.

The Originating Notice of Motion filed with the County Court of the United Counties of Stormont, Dundas and Glengarry at Cornwall on March 18, 1983 reads:

"ORIGINATING NOTICE OF MOTION

TAKE NOTICE that a motion will be made to the Drainage Referee on behalf of the Applicants at a date, time and place to be fixed by the Drainage Referee pursuant to section 15 of Reg- ulation 247, R.R.O. 1980, for an Order quashing Drainage Bylaw No. 878, being a Bylaw of the Respondent Township, provisionally adopted February 18, 1983, upon the following grounds that the Respondent failed to comply with section 42 of The Drainage Act, R.S.O. 1980, Chapter 126, or for such other order as to the Drainage Referee may seem just.

AND TAKE NOTICE that in support of such motion will be read the Affidavit of Arnott Empey, filed, and such further and other material as counsel may advise.

AND TAKE NOTICE that you are required within fifteen days after the service of this notice on you, inclusive of the day of service, to cause an appearance to be entered for you in the office of the clerk of the County Court of the United Counties of Stor- mont, Dundas and Glengarry and in default of your so doing you shall not be entitled to notice of any further proceedings herein.

DATED this 11th day of March, 1983.

WILSON & MCCLELLAND,

Barristers & Solicitors,

132 Second Street West,

Cornwall, Ontario

K6J 1G5

Solicitors for the Applicants"

At the time Referee Clunis wrote his reasons for judgment in the Niagara decision, the Act in force allowed aggrieved landowners the right of appeal if dissatisfied with the engineer's report in the grounds, set out in Section 36, 37, 38 and 39, to the Referee after the report had been adopted by provisional by-law. If successful, the engineer's report may be set aside or amended by the Referee with the engineer's consent (see Section 67(2) if The Drainage Act 1962-63). Subsequent drainage legislation led to the passage of the S.O. 1975 Drainage Act, c. 79, and the creation of a new administrative body known as the Ontario Drainage Tribunal. The lawmakers saw fit to transfer some of the Referee's jurisdiction to the Ontario Drainage Tribunal. An appeal however still lay to this Court on the grounds stated in Section 47(1) of the 1975 legislation.

Now let me be frank. Had the Appellants' application moved to "quash the provisional by-law" under Section 47(1) instead of Section 42, subject of course to the prescribed limitation period, I would have been disposed to hear this matter as the intention of that notice was to attack the adopted report before the final passing. The Appellants however, chose in these proceedings to attack the non-observance of the statute by council and sought to have their application heard before the final passing of that by-law.

The section of the Act permitting the right to appeal the engineer's report at the time the McDougal decision was delivered, states as follows (1937 Municipal Drainage Act c. 278):

"Appeal to Referee

8 (10) Any owner of lands affected by the drainage work, if dissatisfied with the report of the engineer in respect of any of the provisions of this section, may appeal therefrom to the referee, and in every such case the notice of appeal shall be served upon the head of the council of the initiating municipality and the clerk thereof within thirty days after the adoption of the engineer's report by the council, to and the referee may hear and determine the appeal in a summary manner either in his own view of the premises and after hearing the parties and 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 appeal under subsection, may make such order as to him seems just, and his decision shall be final. R.S.O. 1927, c. 241, s. 8(1-10).

Appeal to referee on ground of excessive cost

8 (11) Any owner of lands affected by the drainage work may appeal from the report of the engineer to the referee upon the ground that the benefits to be derived from the drainage work are not commensurate with the estimated cost thereof, and in every such case the notice of appeal shall be served upon the head of the council of the initiating municipality and the clerk thereof within thirty days after the adoption of the engineer's report by the council, and the referee may hear and determine the appeal in a summary manner either on his own view of the area affected by the drainage work or any part of parts thereof and after hearing the parties and 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 subsection may make such order as to him seems just, and his decision shall be final."

There were three grounds for objection in the McDougal appeal and are listed on Page 293 of Mr. Justice Gillanders' judgment.

In disposing of those issues in chronological order, he concludes:

1. "In the case at bar I think the township council were justified in approving the sufficiency of the petition as presented."

2. "A reading of the evidence indicates that he gave careful consideration to all necessary and relevant factors, and the council were fully justified in concluding, so far as the merits of the proposed work were concerned, that it was proper and beneficial."

3. "In the circumstances, the giving of the notice required was a statutory condition precedent, necessary to be observed in the circumstances to found the authority of the council for the by-law in question."

I do not read these conclusions as being an objection to an appeal from the engineer's report under Section 8(10) and/or 8(11), of the 1937 Municipal Drainage Act, but clearly result from an appeal against the statutory non-observance of council; namely, the failure to send out notices as required by Section 16 of that Act.

A by-law has the force of law only after all appeals have been exhausted and only then after the time limited to appeal as prescribed in that notice in compliance with Section 24 (see also Section 25) that Mr. McDougal received. In some cases, by-laws must be registered first before they have the force of law, others must be voted upon by the electors. The 1975 Act prescribes the time to appeal the by-law [Section 58(2)], but a provisional by-law is only a proposed by-law. It is not law, and may be sent back to the engineer at any time before the final passing (see Section 57). The 1975 Act contemplates a final passing before the by-law is enforceable and subject to Section 58(3), the becomes "valid and binding" only after the prescribed periods of time to file and to bring an application have elapsed. [Section 58(2)].

It seems to me, to be a waste of time to move to quash a provisional by-law that may never be anything more than just that. To entertain such an application would deny council their statutory right to refer the report back to the engineer for the reasons set out in Section 57. Referee Clunis has given additional reasons in the Niagara decision on pages 102 and 103.

As Meredith, C.J. O. stated in Re Liquor Licence 1913 CanLII 568 (ON SCAD), 29 O.L.R. 475 at 477:

"There is no proceeding by which a proposed or inchoate by-law can be quashed or set aside or declared valid. Proceedings of that kind can be taken only with respect to something that has, at at all event, prima facie, the force of law."

All by-laws are presumed to be correct, properly passed and valid until the contrary is shown. A voidable by-law is one that is defective for its non-observance or want of compliance with a statutory formality of an irregularity in the proceedings relating to its passing. It is therefore liable to be quashed as was done by the Court of Appeal in the McDougal decision. Whereas, a void by-law is one that is beyond the competence to enact either because of complete lack of power to legislate upon those subject matters of because of non-compliance with a prerequisite to its passing.

This I find to be consistent with Mr. Justice Gillanders for the reason he set aside the by-law of the Township of Harwich when he said at page 300:

"The whole jurisdiction of the council in such a matter is statutory, and the provisions laid down by the statute giving the jurisdiction - provisions obviously designed for the protection of the rights of interested parties - cannot safely be disregarded, at least where observance is not waived, or it is not abundantly clear that complaining parties are not adversely affected."

Certainly there is nothing that prevents an interested party from bringing an application to quash the final by-law at any time before its final passing. Referee Clunis gives some advan- tages and reasons to do so in the Niagara decision.

At the conclusion of his judgment Mr. Justice Gillanders cites two authorities to support his conclusions:

(1) In re Hodgins and The City of Toronto (1896) 2 O.A.R.

(2) In re McCrae and Village of Brussels (1904) 8 O.L.R. 156

In each of these authorities the local improvement by-law in question had received its third and final passing and was quashed for non-compliance with the statutory requirement. Mr. Justice Gillanders relied on these authorities in concluding as he did in the McDougal decision. In my reading of these reports there is simply no suggestion that these local improvement by-laws were not finally passed.

Since the hearing I have had more opportunity of reviewing Referee McNevin's and the Court of Appeal's decision in McDougal et al v. The Township of Harwich. I find the opening remarks of Gillanders, J.A. pertinent in terms of the language he employs in that report, at page 293:

"This appeal is from a judgment of J.A. McNevin Esq. K.C. Drainage Referee, dismissing the Appellants' application to set aside the report of an engineer, and a drainage by-law of the respondent township"

A by-law quashed also has the effect of setting aside the report and in the absence of evidence to the contrary I interpret this statement of Mr. Justice Gillanders to mean just that. Further on the same page he said:

"The engineer proceeded to make his examination and duly reported to the council with, after taking other steps more fully discussed hereafter in dealing with the issues raised, finally passed a by-law authorizing the drainage work proposed in the report" (The underlining is mine.)

There can be no clearer language than this. Only a by-law finally passed could authorize the work to commence. Similar language as "finally passing of this by-law" and "final passing" appears in paragraphs 3, 4 and 5 of the prescribed form of the by-laws as required by Section 22, Form 2 of the 1937 Act. These phrases are unique and have a distinct legal meaning from the phrase "provisionally adopted" which appears earlier in the prescribed form.

References to the reasons of Referee McNevin in his decision in the McDougal report and the 1937 Municipal Drainage Act, c. 278 were not referred to by either solicitor in their submissions. Without reference to them, it is understandable why there appears to be come confusion in the Court of Appeal decision. I referred earlier in this report to Sections 23 and 24 of that statute. At page 4 of Referee McNevin's decision he states:

"After the adoption of the report the notice required by section 24 was, with a copy if the by-law, report, etc. mailed to all of the parties interested by regular mail. Each of the Plaintiffs received these documents but they contend that service by registered mail is not authorized by Section 24"

1937 Municipal Drainage Act, Section 23(1) (2), 24 reads:

Publication of by-law and notice of sitting of court of revision

"23 - (1) Before the final passing of the by-law, it shall be published once in every week for four weeks in a newspaper published in the municipality or in the county town, or in an adjoining or neighbouring municipality, and designated by resolution of the council, with a notice of the time and place of holding the court of revision, and also a notice that anyone intending to apply to have the by-law or any part thereof quashed, must, not later than ten days after the final passing thereof, serve a notice in writing upon the reeve or other head officer and the clerk of the municipality, of his intention to make application for that purpose to the referee during the six weeks next after the final passing of the by-law.

Newspapers to be sent to each persons assessed

• (2) The clerk shall furnish the publisher of the newspaper with the names and post office addresses of all persons within the municipality whose lands are assessed for the drainage work, and the publisher shall mail or cause to be mailed to each owner, to such post office address, the first two issues of the newspaper containing the by-law, and the publisher or person mailing such newspapers shall make a statutory declaration of such mailing and file the same with the clerk of the municipality publishing the by-law. R.S.O. 1927, c.241, s.23.

Service in lieu of publication

24. The council may, at its option, instead of publishing in a newspaper, by resolution direct that a copy of the by-law, including the notice of the sitting of the court of revision, and notice as to proceedings to quash, written or printed, or partly written and partly printed, be served upon each of the assessed owners, or lessees or the occupant of their lands, of the agent of such owner, or be left on the lands, if occupied, with some grown-up person, and if the lands are unoccupied and the owner or his agent does not reside within the municipality, the council may cause a copy of the by-law and notices to be sent by registered letter to the last known address of such owner, and a statutory declaration shall be made by the person effecting any service or mailing any such registered letter, showing the manner and date of effecting the service or mailing the registered letter, and such declaration shall be filed by the persons making the same, with the clerk of the municipality passing the by-law. R.S.O. 1927, c.241, s.24"

It appears from that decision, council complied with Section 24 in lieu of the newspaper publication. Though that notice is not before the court, one may conclude that upon re-

ceiving it by registered mail Mr. McDougal availed himself of the "notice as to proceedings to quash" attached to the by-law. One must presume without that notice being tendered in evidence, that Mr. McDougal proceeded according to that notice to make his appli-cation to quash By-law 3143 heard. We do know that this notice must also advise the ratepayer of the date of the sittings of the Court of Revision. Any change in assessment must be altered by the Clerk before its final passing (Section 55). Similarly, the other notice required to be sent by Section 24, as to "proceedings to quash" must set out the time to file and bring an application. This by-law is only a proposed by-law at this point in time. The notice must therefore have been sent prior to its final passing and no doubt precipitated the confusion. There is no evidence to suggest that these appeals and the proceedings that followed did not comply to the usual format laid down under the Act other than the Respondent Township of Harwich's failure to comply with Section 16. As a matter of fact, the notice in compliance with Section 24 obviously invites an appeal of the by-law before its final passing. That notice could never have reached that point in the proceedings

unless all appeals, if any, under Section 8(10) and 8(11) of the 1937 Municipal Drainage Act were exhausted.

The chronological order of Sections 23, 24, 25 lead me to the conclusion that the notice in Section 23, 24 contemplate an appeal of the final by-law before its final passing and within the limited period following that purpose.

Neither Referee McNevin nor the Court of Appeal gave the date of the final passing of the provisional by-law. Any question of its receiving a final passing could have been removed in these proceedings with the filing of evidence such as the very notice sent to Mr. McDougal, certified copies of the provisional by-law, or final by-law if available. An affidavit from the present Clerk-Treasurer of the Township of Harwich could have been obtained setting out the facts, or even the file itself from the Court House in Chatham, Ontario could have been praeciped to me.

My own interpretation leads me to the overwhelming con-clusion for the reasons given, that By-law 3143 of the Township of Harwich did receive a third and final passing, and I so find. The onus is on the Appellants to satisfy this Court that their interpretation of the McDougal decision was correct. As I said earlier, no evidence was tendered in support of their view other than the Court of Appeal decision itself, which is inconclusive without the assistance of the R.S.O. 1937 Municipal Drainage Act, c. 278 and Referee McNevin's report. The presumption of validity casts the burden on the asserting the nullity or invalidity of a by-law to establish that fact (see Montreal v. Beauvais (1909) 1909 CanLII 60 (SCC), 42 S.C.R., 211), and the Appellants have failed to do so.

Though it may appear only coincidental however, the law firm of "Clunis & Kee, Chatham, Ontario" are cited in the Court of Appeal decision in the McDougal v. Township of Harwich case as solicitors of record. It seems inconceivable to me that the senior law partner in that firm subsequently became Drainage Referee and was not aware of the McDougal principle as interpreted by the Appellants. Referee Clunis again followed his own riling as laid down in the Niagara decision in the report of Emil Godo and Others v. The Corporation of the City of Windsor, April 26, 1971.

It makes no difference in my opinion whether the by-law is one of repair, improvement or original construction. They are all municipal drainage schemes created under The Drainage Act or any one of its predecessors. There is no right to bring an application to quash a provisional by-law under the 1975 Act.

The Niagara and Godo reports lay down the reasons and I do not see the necessity of repeating them.

I find there are no new rights created to move to quash a provisional by-law resulting from the change in the wording of Section 67(2) and 73 of the 1962-63 Drainage Act, Chapter 39 to the new Section 105(1) in the 1975 Drainage Act. The wording of Section 67(2) states:

"The referee has power to determine the validity of all petitions, resolutions, reports and provisional or other by-laws, whether or not objections thereto have been stated as grounds of appeal to him, and to amend and correct any provisional by-law in question, and, with the engineer's consent and upon evidence given, to amend the report in such manner as appears just, and upon such terms as to notice or otherwise as may be deemed proper for the protection of all parties interested, and, if necessary by reason of such amendments, to change the gross amount of any assessment made against any municipality, but in no case shall he assume the duties conferred by this Act upon the court of revision or a judge."

Section 105(1) of the 1975 Drainage Act states:

"The referee has original jurisdiction,

(a) to entertain any appeal with respect to the report of the engineer under section 47;

(b) to determine the validity of, or to confirm, set aside of amend any petition, resolution of a council, provisional by-law or by-law relating to a drainage works under this Act or a predecessor of this Act;

(c) to determine claims and disputes arising under this Act, including, subject to section 119, claims for damages with respect to anything done or purporting to have been done under this Act or a predecessor of this Act or consequent thereon;

(d) to entertain applications for orders directing to be done anything required to be done under this Act;

(e) to entertain applications for orders restraining anything proposed or purporting to be done under this Act or a predecessor of this Act; and

(f) over any other matter or thing in relation to which application may be made to him under this Act, R.S.O. 1970, c. 136, s.73 amended."

My view of these revised sections is consistent with those expressed by Referee Clunis in the Niagara decision. They merely list the powers and procedures of the Referee. I interpret the words "original jurisdiction" to be notice to persons who originate an application before the referee pursuant to the 1975 Drainage Act that it should be directed to this court, not to the Supreme Court under the Rules of Practice. Original means first, and all applications falling under the jurisdiction of the Drainage Referee should originate in his court. This I believe is in accord with Referee Clunis' views when he stated at page 100 of his Niagara decision:

"The essential difference, as I see it, between an application to quash a drainage by-law and other by-laws of municipal corporations is as to form. The usual application is to the Supreme Court. In respect of by-laws passed under the Drainage Act the application is to the Referee."

This court as well, is expected to expedite hearings which may otherwise become clogged in the normal court system and to maintain consistency in the drainage laws of this Province as I have in this application.

Referee Clunis expressed his opinion of the power of the Referee to determine the validity of the provisional by-laws in The City of Niagara Falls v. Township of Niagara, 1967, 1.O.R., 67 at 102:

"There is a clear right to have the Referee review a report after it has been adopted by council. The means of adoption of a report is by provisional by-law. If the Referee concludes that a report should be set aside for any of the reasons mentioned in ss. 34, 35, 36 or 37, then his authority must include the right to quash the provisional by-law which adopts such report. I conclude that it is in this sense that the Referee has power to determine the validity of the provisional by-laws.

I, therefore, conclude and report that there is no right under the Drainage Act to move to quash a provisional by-law. The objecting party, be it ratepayer, municipality or other authority, may commence the application only after the final passing."

In this "sense" only may the Referee entertain an application to quash the provisional by-law and only if that application arises from an appeal under Section 47(1) of the 1975 Drainage Act. There is no right to move to quash the provisional by-law. This is exactly the relief being sought by the Applicants in their opening recital of the Originating Notice of Motion before me. They seek to quash Drainage By-law Number 878, when in fact it is only a provisional by-law and they simply brought their application too soon. For the reasons given it cannot be dealt with on its merits.

The appeal is therefore dismissed. Costs shall be fixed by the Respondent and paid by the Applicants and in accordance with the Act, shall be on a Supreme Court scale.

DATED at Newmarket, Ontario this 11th day of April, 1984.

William D. Turville, Q.C.

Ontario Drainage Referee