Court File and Parties

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

Liedtke v. Stratford (City) 1986 ONDR 2

DATE OF DECISION: 1986-08-18

1986-02

STATUTE: Drainage Act

HEARING:

BETWEEN: WESLEY A. LIEDTKE, MARY B. MCCANN, STELLA KOPERSKI, RON CLARKE, JOHN BRANDON & NORMAN ROESE, BRIAN & DIANE WALKOM, SANDY & SANDRA MCCORMICK, FRANZ HUYGEN, BRUCE HOLMES, JIM BELL, LARRY DUNHAM, DOUWE MEINDERSMA, FRED & ELLA JACKSON, LLOYD & DOROTHY BRADSHAW, HARRY & JEAN MARSHALL, ALAN & ETHEL IVEY, SHELDON & MARY ANN MARTIN, ROBERT G. HARPER. MERVYN KAUFMAN, MARY TARAS, ROBERT MUELLER, ROSE & ROY COLLIE, CHARLES & GERALDINE WATERS, JOHN HARRIGAN, FREDERICK ZIMMERMAN, MRS. LEILA FITZGERALD, DONALD DAVIS, MRS. HAZEL GLAAB, MRS. ELVA BINKLE, MR. & MRS. LEONARD WAHL, BRUCE & ROSALIE EDWARDS, MIKE & ALICE COLES, ISABELLA J. WAIDE, MICHAEL & KAREN TAYLOR

• and -

THE CITY OF STRATFORD

Reasons

For the APPLICANTS: Applicants appeared on their behalf

For the RESPONDENT: Thurston Kee, Messrs. Kee & Robertson

The original By-law 751 that brought this scheme under the present Drainage Act R.S.O. 1980, c. 126, was passed by the Township of Ellice on April 30, 1928, under the earlier legislation known then as the Municipal Drainage Act. That by-law saw part of the construction take place in the City of Stratford. The City of Stratford in accordance with Sec. 78 of the present legislation passed By-law 81-82 on September 9, 1985, to improve part of that original scheme. The Townships of Ellice and Downie are also assessed under By-law 81-82, but the vast majority of the assessment is levied against lands in the City of Stratford. These works have always been known as the Roadhouse Drain. The amended engineering report, was prepared by Mr. K.A. Smart, P. Eng., K. Smart Associates Limited, Kitchener, Ontario. It was provisionally adopted on June 28, 1982 and the cost of construction at that time was to have been $639,925.00.

In an unusual occurrence, I received on December 3, 1985, a letter from one of the aggrieved landowners, a Mr. Charles Waters. Mr. Waters sought my counsel on certain questions and set out his objections to the Roadhouse Drain. He wished his letter and three petitions attached to it, containing as well as his own, another 50 signatures affected by this By-law. Apparently, he wished his letter and the petitions to be their application to quash By-law 81-82. Anyone wishing to apply to quash a by-law must first follow the requirements of Sec. 58(1) Sec. 58(2) of the Act:

58. (1) Where the council of an initiating municipality has adopted a report for the construction of a drainage works after the time for appealing has expired and there are no appeals, or after all appeals have been decided, the council may pass a provisional by-law thereby authorizing the construction of the drainage works, and work may be commenced ten days after the by-law is passed if no notice of intention to make application to quash the by-law has been filed with the clerk of the council.

(2) If no notice of intention to make application to quash a by-law is filed with the clerk of the council within ten days after the passing of the by-law or, where a notice of intention has been given, if an application to quash is not made to the referee within three months after the passing of the by-law, the by-law, or so much thereof as is not the subject of or is not quashed upon any such application, is valid and binding according to its terms, so far as it prescribed or directs anything within the proper competence of the council.

In my short written reply to Mr. Waters on December 10, 1985, I made it abundantly clear that I was forbidden by the Act (Sec. 102(5)) to give legal advise. I did suggest to him, twice in fact, that he should "seek the assistance of a solicitor having knowledge and expertise regarding the Drainage Act". It appears this advise went unheeded. I also acknowledged to him that as this was his application to quash By-law 81-82, then I would accept it and the other signatories as that in accordance with their wishes. I directed Mr. Waters to serve the Clerk of the City of Stratford with all of those papers sent to me. Apparently this was not done until January 6, 1986.

The grounds of appeal in the petition attached to Mr. Water's letter are:

"(1) Unfair Assessment

(2) Discrimination - by land locking properties of small land owners to accommodate a developer.

(3) Accessive Cost to the taxpayers of Stratford. (I have assumed Accessive was intended to mean Excessive.)"

Mr. T. Kee, solicitor from Chatham, Ontario, entered an Appearance on behalf of the City of Stratford. On February 19th, 1986, I signed an ex parte order allowing the City of Stratford to serve their Appearances and all future notices by registered mail upon all the Appellants until such time as they had obtained their own solicitor.

I see no necessity of describing the improvements in this drainage scheme outlined in the engineer's report. It has already been the subject of various Hearings before the Ontario Drainage Tribunal, The Court of Revision and further appeals from that body.

I gave each Appellant an opportunity of making submissions, though admittedly it is difficult for laymen to understand the issues before the court. Eight persons responded. Mr. McKee was the only solicitor of record.

The City of Stratford brought an application by way of a Notice of Motion returnable July 17, 1986, at the Court House, Stratford, Ontario. This application asks for an order:

(1) for an order declaring that the three documents in the form of petitions, and each bearing the date the 14th September, 1985 and reading "we the undersigned would like to voice our objections to quash a By-law passed by City Council at their meeting of September 9th to relocate the Roadhouse Drain from its present location to a location that was designated as a road allowance "are not proper applications to quash By-law No. 81-82 finally passed on the 9th day of September 1985 or in the alternative

(2) for an order dismissing any such application to quash said By-law No. 81-82 made under the said three documents or in the alternative

(3) for an order directing the procedure to be followed in any future proceedings with respect to these matters or

(4) for such further or other relief as this Honourable Court may Deem just, and

(5) for their costs of these proceedings.

It appears to me Mr. Kee's grounds for his motion clearly delineate the issues to be settled. Was Mr. Water's letter and the attached petitions, applications as contemplated by the Drainage Act? In addition, what is the effect of the failure to file the notice required by Sec. 58(1), and further, the effect of late filing as prescribed by Sec. 58(2) of the Act? Exhibit "H" of the affidavit of Paul Hunt, Deputy City Clerk, confirms that the prescribed requirement of filing a notice of an intention to make an application to quash a by-law (Sec. 58(1)) was properly complied with by Mr. Waters. His letter and the petitions mailed to me, or whatever he intended them to be, were not filed until January 6, 1986, beyond the three month period prescribed by Sec. 58(2). He further failed to bring an application for leave to extend the time (Sec. 113). Even if he had. only one ground in the petitions could possibly be within the jurisdiction of this Court. (#2) There was no material filed in support of their application. I would however have looked gravely upon such an application to extend the time as time itself has increased the costs of construction enormously. The City of Stratford appears to have offered the work for tender, but apparently have not entered into any firm commitments as yet.

I am in agreement with Mr. Kee's submissions that the letter and petitions received by me on December 3, 1985, are not applications contemplated by the present drainage legislation. An application or proceeding to quash a by-law may be made in accordance with Rule 2 of Regulation 247 under the Drainage Act. R.S.O. 1980 c. 126:

2. All proceedings before the referee may be instituted by:

(a) notice of appeal to the referee or

(b) originating notice in the form of a notice of motion O Reg 405/68 s. 2

3. (1) Every notice originating proceedings before the referee shall be endorsed with a notice.

(a) requiring an appearance to be entered in the office of the county clerk of the county in which the notice instituting the proceedings is held and

(b) in the following form:

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 county of .......... and in default of your so doing you shall not be entitled to notice of any further proceedings herein

An "application" is defined in Section 1(b) of the Courts of Justice Act. S.O. 1984 c. 11 which consolidates all of the Acts relating to the courts of Ontario (save as to the surrogate courts) into one Act, The Ontario Supreme and District Court Practice.

Sec. 1(b) "application" means a civil proceeding in the Supreme Court or the District Court that is commenced by notice of application or a civil proceeding in the Unified Family Court, a surrogate court or the Provincial Court (Family Division that is commenced by application);

I find as fact therefore, that Mr. Water's letter and the three petitions are not applications within the intent of the Act and Regulations thereunder. Petitions are not proceedings that institute litigation in this Court, but are merely a request. As already stated, there was no material filed in support of his position. As well, he was debarred by the Drainage Act for being beyond the time limited for filing, even if his material had been proper.

Turning to the 50 other Appellants, they failed to file the necessary notice required by Sec. 58(1). They cannot shelter under Mr. Water's notice just because it was properly filed in time under that Section (see Re McCormick and the Corporation of the Town of Howard 18 O.R. 260)

It has been held that the notice must be given by, or on behalf of, a named party who subsequently makes an application to the Court; that an applicant cannot avail himself of a notice given by another who does not join in the proceedings, nor of a notice purporting to be given on behalf of certain named persons (of whom he is not one) "and others". (re McCormick & Twp. of Howard (1889) 18 O.R. 260). The late Mr. Justice Street, in delivering judgment upon the above application, said p. 263: "Under the statute the council are entitled to know who is the person objecting to the by-law, and a notice which does not give this information is not sufficient under the statute.

Accordingly, there being no proper applications brought by any of the Appellants and what was filed was not within the prescribed time, under Sec. 58(1) or 58(2), the motion before me by the City of Stratford shall succeed. I therefore confirm that By-law 81-82 is valid and binding. I must add that it appears from reading the affidavit of Paul Hunt, there being no material filed to the contrary, that the City of Stratford appears to have followed carefully the provisions of the Drainage Act. In an unusual step, Mr. Kee advised me at the end of his argument that the question of costs should be held in abeyance. He subsequently advised me, as did the Deputy Clerk, both by letter, that the Respondent did not wish to seek costs against the Appellants. In accordance with Sections 108, 109, 110 of the Drainage Act, those costs would have been levied against all persons who signed the petitions on a Supreme Court Scale, the cost of which would have exceeded their individual assessments. Therefore, each party shall be responsible for their own cost.

Dated at Newmarket, Ontario this 18th day of August A.D. 1986.

William D. Turville Q.C.

Ontario Drainage Referee