Broeders v. Wolfe Island (Township), 1987 ONDR 1

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Broeders v. Wolfe Island (Township)

1987 ONDR 1

DATE OF DECISION:

1987-09-30

1987-1

STATUTE:

Drainage Act

HEARING:

BETWEEN:

1986-09-22

JACK BROEDERS AND

BROEDER AND SONS LIMITED

APPLICANTS

• AND -

TOWNSHIP OF WOLFE ISLAND

RESPONDENTS

REASONS FOR JUDGEMENT

This application was made pursuant to Sec. 58(2) under the Drainage Act R.S.O. 1980 c. 126 as amended. It was heard on September 22, 1986 and September 23, 1986 at the Court House in Kingston, Ontario. The Applicants seeks an Order for:

(a) quashing By-law 5-86 of the Township of Wolfe Island, passed February 17th, 1986, being a By-law rescinding By-law 7-84 of the said Township, being a By-law for drainage works pursuant to the Drainage Act, R.S.O. 1980 c. 126,

(b) directing the Township of Wolfe Island to proceed forthwith with the construction of the drainage works in accordance with the provisions of By-law 7-84 and the Drainage Act, R.S.O. 1980 c. 126 and to take such steps as may be necessary to accomplish same, and

(c) directing the Township to pay towards the costs of construction of the drainage works an amount equal to the amount of any Federal or Provincial funding withdrawn and no longer available to reduce the costs of the drainage works,

(d) extending the time for this Application, if necessary.

Mr. Carr-Harris for the Appellants; By-law 5-86 that repeals construction By-law 7-84 is void and ought to be set aside - date of appeal is merely technical and is not prejudicial to the Respondent - The Drainage Act ought to receive liberal interpretation (Eves v. Corporation of the Township of Amherst Island, 1983) - Referee has discretion to extend the time for appeal under the present drainage legislation (Sec 113). By-law 7-84 is a money by-law and therefore allowing a one year appeal period analogous to Sec. 156 of the Municipal Act R.S.O. Sec. 58(3): both notices required were properly filed - Sec. 51 of The Drainage Act R.S.O. 1980 c. 136 as amended gives the Ontario Drainage Tribunal jurisdiction to over rule municipal authority and their authority not to be impeached by an inferior body: (Re: Regional Municipality of Ottawa-Carleton and Township of Marlborough, 1974 CanLII 520 (ON HCJ), 2 O.R. (2d) 297 at 301-300 (HCJ)) - nor to have municipal by-laws at "cross purposes". (Attorney General for Ontario et al and City of Mississauga 1981, 33 (2nd) 395) The present drainage legislation is not to be contrary to the general law (Canadian Sugar Refining Company Limited v. The Queen, 1898 A.C. 735 at 741) - Respondent in bad faith in passing By-Law 5086 as being repugnant to the Order of the Ontario Drainage Tribunal (Re: Birnamwood Investments Ltd. et al and Town of Mississauga 1973 CanLII 395 (ON HCJ), 2 O.R. (2d) 421 (HCI)) (Re: Burns and Township of Haldimand, 1965 CanLII 171 (ON CA), 2 O.R. 768 at 772-3) (Re: H.G. Winton Ltd. and Borough of North York, 1978 CanLII 1566 (ON HCJ), 20 O.R. (2d) 737 at 740, 744.5).

Mr. M. Carty for the Respondent Township - Drainage Act is very clear giving the Respondent authority to repeal the by-law (sec. 58(3)) - application not made within the prescribed statutory limitation period (Re: Clements & Toronto 1960 O.R. (C.A.) 18) - Referee can't extend time to appeal Sweetman - Gosfield 1889, 13 P.R. 293 - council must know the name of the person filing notice of application McCormick and the Corporation of the Township of Howard, 18 O.R. 1889, 260 - Cases sited by Appellants under Planning Act have no analogy to The Drainage Act, but are similar in nature to local improvement legislation - no requirement for notice required by Drainage Act - only council has authority to decide to repeal by-law within their discretion Clapp v. Township of East Sandwich 1922, O.R. - council may repeal by-law in the public interest - issues should be given liberal interpretation. Eves v. The Corporation of the Township of Amherst Island 1983 - no evidence of bad faith by repealing by-law - Sharlmark Hotels Ltd. and Municipality of Metropolitan Toronto 1981 CanLII 1873 (ON HCJ), 1981, 32 O.R. (2nd) 129. Appellants not alleged that lack of notice prejudiced him and too late to raise that issue now - public interest to repeal by-law.

Mr. Carr-Harris is reply:

Respondent's conduct may have caused lack of funding - this delay has possibly the effect of repealing the by-law - Appellants did not have 10 days as he was not made aware of By-law 5-86 when it was passed - Referee's discretion to extend time remains unfettered - Respondent's responsibility is not to benefit the whole municipality - arbitrary position of Respondent is in bad faith.

It is necessary to give a brief history of the facts. This municipal scheme was initiated by Petition filed by the Appellant with the Respondent on April 1, 1981. According to the Township minutes, filed, the Petition was at the first meeting of council deferred as it was the Respondent's first petition under this legislation and it wished to "check up on the program".

Opposition to this drainage scheme started as early as December 7, 1981, long before any engineering report was prepared and the project given authority to proceed, now named the Reed's Bay Drain. It was not until October 5, 1981, that council appointed Mr. Alex Graham, a drainage engineer to prepare a preliminary report that was presented to council on April 22, 1982.

Again, it was not until late spring 1983, that the Deputy Reeve at a meeting of council indicated that the Reed's Bay Drain was not economical, would not proceed further, and that a Benefit Cost Statement in accordance with Sec. 7, be prepared by a private corporation. However, in spite of this Benefit Cost Statement, the engineer was not prepared to amend his report. The Appellants appealed pursuant to Sec. 45(2) of the Drainage Act as nothing was being done to move the project forward.

Sec. 45(2) “Where a report is not adopted by council, any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal. 1975, c. 79, s. 45."

This Tribunal Hearing was held on August 11, 1983, and rendered its decision on August 26, 1983. The Tribunal found that Option "3" of Mr. Graham's preliminary report of March 17, 1982 should be adopted in accordance with the engineer's third proposal, circulate the revised report forthwith and immediately conduct the Court of Revision. The Tribunal had

"elected to approve Alternative III not only because it appeared to generate the best results from the analysis but also because it did provide the Appellant with suit-able tile outlets for his property at minimum cost."

Notwithstanding the opposition to the construction of these drainage works, one must be impressed with this intelligent and sensible decision. Council's concerns were finally put to rest. Consequently, council instructed the engineer to revise his report in accordance with that decision. Nothing then having been done for several months, the Appellants once more appealed, as was their right to the Tribunal, again, pursuant to Sec. 45(2).

The Tribunal's decision dated May 22, 1984, ordered the Respondent:

"to proceed to complete the drain and adopt the revised report by passing the provisional By-law providing Provincial and Federal grants were available within 7 months otherwise Council's discretion was to proceed as it sees fit." (TAB 29)

In fairness to the Respondent, the engineer was found by the Tribunal to have been at fault for this latest delay.

It appears from the evidence that two third government grants were available at that time. (see Tab 31) Council acceptance of the Tribunal's order was evident by their not appealing the decision, as well as their initial intention to send out notices to those interested in holding a meeting on November 29, 1984 to consider the report. This meeting however was cancelled as it was felt that issue had been dealt with by the Tribunal's decision. Accordingly, Provisional By-law 7-84 was passed by council on November 21, 1984 formally adopting the report on compliance with the Tribunal's decision. The Tribunal again met on June 28, 1985, to hear an appeal under Sec. 48 and several assessment appeals under Sec. 53, 54 from previous decisions of the Court of Revision. It rendered that decision on July 10, 1985. There appears from the various minutes of council, filed, delegations of persons who urged council to approach the new government to review the inequities of The Drainage Act. As well, council apparently intended to write various ministers on both the Provincial and Federal levels indicating they were not satisfied with the Tribunal's decision to complete the construction that over ruled their own. The Respondent's solicitor advised them in a letter dated August 15, 1985, filed, that in spite of council's dissatisfaction with The Drainage Act it

"would appear to have no alternative but to pass the Drainage by-law."

In accordance with that advice, council finally passed By-law 7-84 on September 3, 1985. Subsequently, council without notice to the Appellants repealed By-law 7-84. The required three readings took place at the same meeting on February 17, 1986. Mrs. B. Pyke had filed an intention to appeal on February 24, 1986 and the Appellants' application now comes before me to quash the repealing by-law.

On the assumption the Respondent had the authority under Sec. 58(3) to repeal By-law 7-84, I shall first deal with the Respondent's solicitor preliminary applications:

(1) The Appellants' failure to file the required notice within prerequisite ten days following the passing of the By-law 7-86 as required by Sec. 58(2) is fatal to his application.

(2) That the notice of intention filed by Bridget Pyke within the prescribed time of Sec. 58(2) was not filed as agent for the Appellants and the latter cannot shelter under that notice.

(3) There is no authority permitting the Referee to extend the statutory limitation period to file a notice beyond that initial 10 day time period in Sec. 58(2).

On the first motion, the Respondent's solicitor urged that the Appellants failure to file a `notice of intention to make application to quash a by-law... within ten days after the passing of the by-law' was fatal to his application as required by the principle laid down in the decision of Street J., Re. McCormick and the Corporation of the Township of Howard 1889, XVIII O.R. 260, at 261:

"The Council in the present case proceeded under sub-sec. (1) of Sec. 571, by advertising the by-law with the statutory notice that any one intending to have it quashed must, not later than ten days after the final passing thereof, serve a notice upon the reeve or other head officer and upon the clerk of the municipality of his intention to make application for that purpose to the High Court of Justice."

The drainage sections of the Municipal Act of 1887, ch. 184, Sec. 569-611, as I was able to ascertain under which authority that decision was written, had no provision for the repealing of a drainage by-law. The decision of Street J. was based on a construction by-law only and the assumption was made by him that the required statutory notice had been properly complied with. The wording of Sec. 571(1) of that Municipal Act and the wording of the present statute, Sec. 58(2), regarding the required notice to file within the ten days are similar. Street J. was of the view that the municipality ought to know who is in fact the objector before the Court. I would agree to this principle enumerated by Street J., had the Respondent given prior notice of that meeting, a condition precedent to its passing of By-law 5-86 which for reasons to be given later, it was under a duty to do so.

Referring to paragraph 3 on page 6 that the Referee has no authority to extend the time, I refer to Sec. 113:

"The referee may, where he considered it proper, extend the time otherwise limited for appeals or other proceedings. 1975, c. 79, s. 112."

I read this language to be plain, definite and permissive, that now gives the Referee, not previously given by the legislation, save as to The Drainage Act, S.O. 1975 c. 79, the clear authority to extend the time for the Appellants to file their notice under Sec. 58(2). Certainly, on these facts I am unable to contemplate a situation that deserves more consideration. The Respondent had not committed itself to any construction contracts that would expose the municipality to litigation before passing the repealing by-law and would not be prejudiced. Accordingly, the time to file the Appellant's notice as required by Sec. 58(2) is thereby extended. The Respondent's solicitor argued that the decision of Sweetman and Gosfield 1889, 13 P.R. 293 should apply. There, it was held on an application to quash a construction by-law, not a by-law to repeal a construction by-law as is the situation before me, that the court had no power under the Consolidated Rule 485 to shorten the four days clear notice of an application to quash under Sec. 332, R.S.O. 1887, ch. 184. I read this decision that Rule 485 of the Consolidated Rules and Rule 30 of Regulation 247 under the present Drainage Act being similar, are time periods under The Rules of Practice and Procedure to be followed in all Proceedings before the Referee (Regulation 247) and do not apply to an application beyond the statutory limitation period required by the statute itself. That decision appears also to have decided the application to quash a drainage by-law must be done within the period of time (sec. 571 - 6 weeks) though the motion was returnable after the expiry of the 6 weeks was immaterial. I must once again point out that the present legislation unlike its predecessors, save as to The Drainage Act, 1975 S.O. c. 79, now contains an express provision for extending the time for an appeal. On the question as to whether the notice filed by B. Pyke was that of the Appellants, I need not now express an opinion.

The present drainage legislation and its predecessor The Drainage Act S.O. 1975 c. 79 as amended, created for the first time the Ontario Drainage Tribunal. It is necessary to trace the historical steps that led to the Tribunal's origins, its goals and statutory authority.

The Ontario Drainage Tribunal originated from the recommendations of the Final Report of the Select Committee on Land Drainage, June 1974, tabled in the Legislative Assembly by Lorne C. Henderson M.P.P. Chairman.

The purpose and principles of the Ontario Drainage Tribunal are outlined in that Report:

(1) It must be expeditious and easily accessible;

(2) It must be flexible as it will hear appeals throughout the Province;

(3) It must reasonably informal but nevertheless guarantee a fair hearing;

(4) It must have the expertise to handle questions of an assessment, engineering, or legal nature as they arise.

Drainage legislation evolved from The Municipal Act over 100 years ago. As a result of the Select Committee's recommendations, major revisions in drainage legislation first appeared in the Drainage Act S.O. 1975 c. 79, in particular the Ontario Drainage Tribunal. The Tribunal's decisions have been effective and practical. The majority of their decisions are final. The Chairman is a lawyer/farmer and sits with an experienced drainage engineer at all Hearings. The balance of the Tribunal consists of retired and semi-retired knowledgeable farmers across Ontario. Their decisions number in the hundreds and their function as envisaged by the Select Committee has been extremely successful. There has never been an appeal made to this Court (see Sec. 106(2)) from a decision of the Tribunal. They are subject to the Statutory Powers Procedure Act 1980 R.S.O. c. 484. A quorum is three. Their jurisdiction covers many areas and their special knowledge of land drainage and practical expertise for finding solutions to drainage problems raised in this complicated statute across this Province is unparallel for this present day statute that found its roots in the 1859, Con. Statutes of Upper Canada Ch. 44. At most Hearings the members of the Tribunal have far greater insight into the issues at hand than those appearing before them. It is essential to enumerate its statutory authority for the purposes of illustrating their very wide powers.

Under Sec. 5(2), a petitioner may appeal to the Tribunal where he has not received a notice of a decision of council within thirty (30) days of filing of the Petition and

"the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. 1975 c.79 s.5."

It should be noted that the Tribunal has the authority on an appeal to reverse council's discretion not to proceed with the drainage works following the filing of a petition in accordance with Sec. 4.

The obvious purpose of this section is implied, that the Tribunal, if it sees fit, may order council, among other things, to proceed with the drainage works of the Petition filed.

Sec. 6(3)

Appeal to the Tribunal to confirm or vary the environmental appraisal account as it considers proper.

Sec. 8(3)

Failure of council to appoint an engineer after deciding to proceed may appeal to the Tribunal who

"may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper."

Sec. 10(6)(7)(8)

Should the Petition comply with Sec. 4 and after any names are removed, council may instruct the engineer to do so their discretion may be challenged by a petitioner to the Tribunal. In addition, there is an appeal to the Tribunal on the environmental appraisal. These sections of the statute indicate council's discretion not to proceed may be reversed on an appeal to the Tribunal.

Sec. 10(9)

Sets out the powers of the Tribunal with respect to the environmental appraisal on appeal and the

"Tribunal may confirm the environmental appraisal or direct that it be reconsidered in such respects as the Tribunal considers proper. 1975, c. 79, s. 10."

Sec. 45(2)

Where an engineer's report has not been adopted by Council

"any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal. 1975, c. 79, s. 45."

Sec. 48(1)

Vests power in the Tribunal to hear an appeal if dissatisfied with the engineer's report on the grounds to be stated.

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works in not required, or is impractical, or cannot be constructed under section 3,"

Sec. 49

Appeal from the engineer's report to the Tribunal by the local conservation authority.

Sec. 50(1)(2)

An appeal or reference to the Tribunal by an adjoining municipality affected by an engineer's report.

Sec. 51(1)

Sets out the powers of the Tribunal.

"On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act and as it considers proper to carry out the purpose of this Act."

Sec. 54

This section charges the Tribunal with the responsibility of hearing appeals from the Court of Revision and under Sec. 54(3)

"the Tribunal by way of a trial de novo and shall be disposed of by the Tribunal in such a manner as it considers proper, and its decision is final. 1975, c. 79, s. 54"

Sec. 58(4)

Where a gross error is found in the report after the by-law is passed, council on notice to all persons may apply to the Tribunal to correct the error.

Sec. 58(5)

Where the by-law is passed and council does not begin construction, an appeal to the Tribunal who

"may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. 1975, c. 79, s. 58"

Sec. 62(2)

A municipality other than the initiating township, if assessed, may appeal to the Tribunal where insufficient funds under the original by-law are not available.

Sec. 64

An appeal lies to the Tribunal where an owner of land is dissatisfied with the quality of the construction.

Sec. 65(5)

The apportionment of an engineer's fees in excess of $200.00 assessed against the rate payer may be appealed to the Tribunal.

Sec. 72(1)

The Tribunal is charged with the responsibility of hearing an appeal by the local municipality on the amount of the engineer's account.

Sec. 75(1)

An appeal by a municipality of a provisional by-law for which it may be liable for contribution without a report.

Sec. 76(1)

Council may appeal to Tribunal on varying the original assessments.

Sec. 76(3)

Appeal lies to the Tribunal from the engineer's finding as to the portion of cost assessed against a municipality.

Sec. 101

"in any application, appeal or reference under sections 8, 10, 48, 49, 50, 54, 64, 65 and 75 the decision of the Tribunal is final. 1980, c. 1, s. 28"

The Referee's jurisdiction is set out in Sec. 106(2) where an appeal lies to the Referee from a decision of the Tribunal on certain grounds.

Sec. 106(2)

"Subject to section 101, the Referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purposes may make any order that the Tribunal might have made and may substitute his opinion for that of the Tribunal."

It follows that an appeal lies to the Referee from a decision of the Tribunal subject to Sec. 101, from the following sections of the statute,

Sections 5, 6, 45, 58, 62, 72 & 76.

Finally, it would not be amiss to again quote the one section the clothes the power upon The Ontario Drainage Tribunal.

Sec.51(1)

"On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act and as it considers proper to carry out the purpose of this Act."

It cannot be successfully argued that the Tribunal's authority is limited as to the manner only by which a drainage scheme shall be implemented. It is quite evident that the legislature intended to create one provincial body to settle issues and "to direct things to be done" within the perimeters of the local authority's jurisdiction. The Tribunal did just that in their decision of May 22, 1984. The legislature intended the local municipality not to pass by-laws repugnant to the Tribunal's authority. In my opinion it is crystal clear from the language of Sec. 51(1) that all matters and issues raised on all of the preceding sections of the statute are so wide and encompass such a variety of issues, that there could not possibly be any question of their authority. It is simply a catalogue for matters in which the Ontario Drainage Tribunal has jurisdiction to direct council. In the final analysis the Ontario Drainage Tribunal is charged with the responsibility on an appeal to it, to make such decisions that may direct council to take whatever steps it finds necessary that are within the competence of council. Certainly the latter had the authority and discretion before any intervening appeal to the Tribunal to proceed or not as they may choose. This provincial legislation has provided the vehicle through the Ontario Drainage Tribunal to see to it that a scheme does not become bogged down at the local level. Normally, council has been in the best position to decide what is best in the public interest. The Ontario Drainage Tribunal is now, on an appeal to it, to make that decision. The legislation's incentives for grants should leave no doubt concerning both levels of governments eager promotion for drainage in this province. Its decisions are to be exhaustive, subject to those areas of appeal under Sec. 106(2). Their decision should not be at cross purposes with the local authority. Where the legislation and by-law work at cross purposes the Respondent no longer has the authority to regulate. A.G. Ontario v. City of Mississauga, (1981) 33 (2d) 395 at 401

"A by-law is a local law, and may be supplementary to the general law; it is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful."

Under the circumstances, I am of the opinion that the repealing By-law 58-6 is void and a nullity for lack of jurisdiction.

On the question of notice, the Respondent's solicitor took the position that no notice was requires to be given to the Appellants of the February 17, 1986 meeting of council prior to the passing of By-law 5-86 that evening.

One need only read the history of the Reed's Bay Drain which had been initiated over sixty years ago and the minutes of council, filed, to draw the conclusion that the attitude of the municipality was never on favour of this project. It was only after it received legal advice (Tab, 46) that precipitated the final passing of the construction By-law 7-84 on September 3, 1985. A number of rate payers had threatened council with an application to quash By-law 7-84. Two residents did in fact file a Notice of Application to appeal, but it was abandoned. An election appears to have taken place in early December 1986 and the new council held a "special" meeting on December 5, 1985 to hear two further submissions against the Reed's Bay Drain. It was not one of their regular meetings. Council knew in advance the purpose of this meeting and though under no obligation to give notice to the Appellant, did not do so. Neither of these two objectors at that meeting were assessed under the engineer's report. One new member of council had prior to his being elected been quite vocal against this scheme. Though he did not vote in favour of By-law 5-86, he shared the same sentiment as did his colleagues, a conclusion easily drawn from the minutes, filed, and particularly from part of the examination for discovery of the Reeve, read into the evidence. At that "special" meeting, council agreed to repeal the construction By-law 7-84, subject to their obtaining legal advice. The legal advice it received by letter dated December 24, 1985, (Tab. 55), to the effect that the municipality was within its rights "to refuse to pass a final by-law authorizing the drainage works". In fact, the construction by-law had been passed on September 3, 1985. Apparently, in this advice the solicitor has relied on the persuasive quality of Clapp vs. The Township of Sandwich East 1922, 52 O.L.R., 1980, (C. of A.). It appears from this decision that it was within the Respondent's discretion to decide if a drainage scheme should or should not proceed. This decision of The Court of Appeal, it should be noted, had nothing to do with the repealing of a construction by-law already passed.

As Meredith C.J.O. said on page 182 of that decision:

"I find nothing in the Drainage Act to indicate that there was an obligation on the Appellant's council finally to pass the by-law. Where the Legislature has intended to impose such a duty, it has explicitly said so, as in the case of a by-law which has received the assent of the electors, as to which sec. 280 imposes the duty to pass it where the council has been legally required by petition or otherwise to submit it for the assent."

This statement must now, however, be read in the light of the present legislation and the statutory authority given to the Ontario Drainage Tribunal. One must always be aware of the ever changing provisions of this legislation and the quotation from page 5 of Frank B. Proctor's book on Drainage Laws 1908, could well apply to today's statute and the powers now conferred upon the Tribunal.

"DETERMINED CASES, ANTERIOR TO 1894, FREQUENTLY OF UNCERTAIN VALUE AS PRECEDENTS. - It need scarcely be added that the plain wording of the Act as it stands as present must control and govern decided cases determined upon a construction of the provisions of earlier Acts of more limited scope or of conflicting provisions. In this connection the following remarks of Mr. Justice Osler of the Court of Appeal, in re Tps. of Caradoc & Ekfrid (1847) 24 A.R. 576, at p. 578, are in point. "The changes introduced into the drainage laws by the legislation of 1894 are so numerous and extensive, and the powers thereby conferred upon municipalities so largely increased, that in many respects we can now derive but small assistance from cases hitherto decided, and it is better therefore to take the words of the new Act and try from them to find out the intention of the Legislature."

Whatever purity of purpose the Respondent had in repealing By-law 7-84, there were no recitals in it to tell us the reason for its passing and no member of council came before this Court to testify in support of their own by-law. I found their silence most disturbing and council should be criticized for it. I must however deal with the evidence before me.

The new members of council are presumed to have known full well the Appellants' persistent pursuing for this project for over six years. It appears they did nothing to "check up on this program" for they were prepared to repeal it subject to legal advice three days after their first meeting in office. Had they taken the time they would have discovered that a municipal drain becomes a "quasi municipality" (West Nissouri vs. North Dorchester 1887, 14 O.R.) for drainage purposes, and the assessed ratepayers within such territory become (as aptly named by Hagarty, C.J.O., in Sombra vs. Chatham 1897 CanLII 12 (SCC), 1897, 28 S.C.R. 1 "co-adventurers") who embark on a joint adventure for the construction of a drain or artificial watercourse to drain their lands, and thus improve and make them more productive for agricultural purposes, and, as a consequence, enhance their monetary value. This legislation can therefore be termed special legislation and the by-law creating the scheme is not for the public generally (See Re: Hamilton Powder Co. and Township of Gloucester, 1909, O.W.R. 661 at 662).

It is most unfortunate that this municipal scheme is still before the Courts and has not yet been resolved. There shall always be persons objecting to changes in their neighbourhood, regardless of whether or not they receive some benefit and whether or not they are required to contribute monetarily to it. It must now however be recognized that the Ontario Legislature intended The Ontario Drainage Tribunal to make decisions on appeals to it and to direct the council as to whether to proceed or not, subject to an appeal to the Referee under Sec. 106. Obviously, on an appeal to the Tribunal the general rule that local council are more familiar with local conditions and is best to determine what is or is not in the public interest can no longer be the rule of thumb under this statute.

The cost to date is almost $60,000.00. The Appellants are by far the largest assessed owners of the three Petitioners and shall bear the major cost on the event the project does not see completion, subject to an adjustment for the Benefit Cost Statement under Sec. 7(2). That, however, is not a reason to proceed with the work, notwithstanding the heavy hardship upon them. It appears quite evident that advising the Appellants to attend the February 17, 1986 meeting of council would have only paid mere lip-service to their obligation to hear Mr. Broeder's submissions as their minds had already been made up to repeal the construction by-law. Council had been advised earlier by their solicitor (Tab 30) that the original petitioners would absorb the cost (subject to Sec. 7, & 42-43). The Appellants were denied the opportunity of making submissions at that February 17, 1986 meeting of council and with it the lost opportunity of attempting to persuade council not to pass By-law 5-86. Practically speaking, it would be absurd to require a ratepayer to file a notice of intention to object to the by-law (Sec. 58(2)) when the ratepayer had no knowledge of any kind when the time the by-law was passed.

The Appellants' share of the cost to date would have to be collected from the Appellants in the same manner as realty taxes Sec. 61(4) and 118(1). The requirement to give notice to the Appellants is clearly set out in the decision of Van Camp J. in Re. Birnamwood Investment Limited et al and Town of Mississauga (1973) to R. (2d) 421 (HCI) at 423.

"It is the submission of the applicants that in so far as the lands in question are concerned Council lacked jurisdiction to pass By-law 9246 for reason of the failure to give notice or to hear the applicants prior thereto. In support of this submission I was referred to Re Hodgins and City of Toronto (1895), 23 O.A.R. 80, an appeal by the City of Toronto from the judgment of Street, J., reported 26O.R. 480, quashing a local improvement by-law for the construction of a sidewalk on the ground of insufficient notice to a property owner affected by the proposed work. Hagarty, C.J., at p. 83, said: "An assessment charging lands has always been considered a judicial act, of which the party affected must have notice and be allowed to be heard." And at p. 86, Osler, J.A., said: "The above cases show that the imposition of a tax of this kind is in the nature of a judicial proceeding." And at p. 85, Burton J.A., said:

"The imposing a tax upon the property of another is a quasi-judicial proceeding, and the words of a statute must be so free from doubt as to place it beyond all questions that so equitable and fundamental a principle was intended to be departed from...

But I repeat that, whatever may be the proper interpretation of this not over-clear enactment, there is nothing in it to over-ride the general rule that when a person's property is to be affected by anything analogous to a judicial proceeding, he is entitled to be heard.

This lack of prior notice denying the Appellants the opportunity to be heard before council is a denial of natural justice. The construction By-law 7-84 was passed on September 3, 1985 only after the Respondent was advised by their solicitor (Tab 46) they would have no alternative but to pass it. This gave the Appellants the impression that this project would finally proceed and to repeal it without their knowledge led them into a false sense of security.

Council had been displeased with the decision made on May 22, 1984, by the Ontario Drainage Tribunal which ordered the Respondent to complete the drain, providing funding was available within seven months. This decision could have been appealed to the Referee under Sec. 106(2). I find By-law 5-86 has as its objective, the setting aside of that order, an act of the Respondent beyond its jurisdiction. To suggest that council has the jurisdiction to repeal any by-law would simply undermine and thwart the purposes and objectives of this legislation. Any municipal council, unscrupulous or otherwise, dissatisfied and unsuccessful in earlier litigation before the Ontario Drainage Tribunal, the Court of Revision, the Referee or for that matter, Divisional Court, need only pass the construction by-law and then repeal it under the authority of Sec. 58(3) of the Drainage Act.

Mr. H. Todgham, a professional engineer specializing in land drainage for almost forty years and certainly recognized as the most experienced engineer practising today, gave examples of situations that would cause an initiating municipality to repeal a by-law under the authority of Sec. 58(3). In his experience it usually arose when some unforseen event occurred ie: the death of the prime mover in a petition. The situations described by Mr. Todgham, certainly suggest that the beneficiaries of the work are the petitioners and the township is analogous to that of a trustee. In any event, it is obvious that the initiating township and the petitioners do work side by side and always are aware of what each is doing. Certainly, a municipality is at liberty to repeal a by-law, save as to the limitations imposed by this legislation. There appears in the statute no restriction on a local authority to repeal a by-law other than by implication that it should not contravene any prior order or decision of the Court of Revision, Tribunal, Referee and The Divisional Court.

The Appellants' solicitor raised three areas of bad faith:

(1) The local authority did not like this legislation.

(2) Acted arbitrarily and unreasonably and their motive in repealing the by-law was a act of bad faith.

(3) The passing of the repealing By-law 5-86 was done without notice to the Appellants.

Members of council are not expected to look favourably upon every piece of provincial legislation but must act reasonably and not arbitrarily. The law regarding bad faith is clearly set out on page 770 of Re: Burns and Township of Haldimand 1965 CanLII 171 (ON CA), 1965, 2 O.R. 768, a dissenting decision of Schroeder, J.A. I am not compelled by the evidence that the Respondent was in bad faith in passing By-law 5-86. Had it been finally passed at the December 5, 1985 meeting of council, I would have viewed it differently, but that decision was held in abeyance until it received legal advice. Likewise, council earlier had passed the construction by-law, following legal advice. The fact that they sought advice in the first place negatizes the submissions of bad faith. There appears no evidence of a discussion of any requirement of notice at that time between the Respondent and their solicitor, but I have already dealt with that matter. I spoke earlier of council's failure to testify and their attitude towards this legislation. I would not expect members of a local municipal council should be pleased with every local improvement legislation, particularly when there is opposition as there was in this small community. Too much attention was directed to the public out-cry and not the requirements of The Drainage Act having been satisfied.

To summarize then for the reasons given, By-law 7-84 shall be quashed:

(1) By-law 5-86 is void and a nullity for Respondent's failure to give prior notice of its final passing that was a con-dition precedent to its jurisdiction.

(2) By-law 5-86 is void and a nullity as being repugnant to the order made on May 22, 1984 the Ontario Drainage Tribunal, an act beyond the Respondent's jurisdiction.

Under normal circumstances, I would not hesitate to issue a Writ of Mandamus as it is clear the Respondent was under a duty after May 22, 1984 to complete the work set out in By-law 7-84, providing the funding is still available in accordance with that order of the Tribunal. The duty imposed upon the municipality by that decision is defined in the Statutory Powers Procedure Act, R.S.O. c. 484, 581.

Sec. 1(1) (d) "statutory power of decision", means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,

(i) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(ii) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether he is legally entitled thereto or not;

(e) "tribunal" means one or more persons whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute.

Sec. 1(2) A municipality, an unincorporated association of employers, a trade union or council of trade unions who may be a party to proceedings in the exercise of a statutory power of decision under the statute conferring the power, shall be deemed to be a person for the purpose of any provision of this Act or of any rule made under this Act that applies to parties. 1971, c. 47, s. 1; 1972, c. 1, s. 104(6).

The Appellants' solicitor in paragraph (c) of his grounds of appeal seeks an order to direct the Respondent to pay the full cost of the drainage works in the event that funding from the Province and Federal governments is no longer available. I am unable to make such an order as it would not be in keeping with that order made by the Ontario Drainage Tribunal. Should the Respondent fail to take immediate steps to see the work completed and provided the full funding is still available, I shall leave it open to the Appellants to bring an application before me without notice to the Respondent, for an order to issue a Writ of Mandamus to complete the drainage works in accordance with By-law 7-84.

It appears to me if grants were no longer available, it would have the effect of penalizing the Appellants for pursuing this project and taking advantage of those sections of this legislation that allowed them to keep it afloat as they were entitled to do. At the time they and their co-petitioners filed the petition, there was no way of anyone foreseeing that grants may be cancelled. There is always the risk that those who live in urban communities may be required to pay for the cost of a municipal drain though in opposition to it. So long as the petitioner meets the requirements of the Act and either the initiating municipality or in this case the Ontario Drainage Tribunal gives the project the authority to proceed, the minority must pay their share of the cost. The words of Referee Clunis in Niagara Falls (CIty) v. Twp. of Niagara, 1966 CanLII 291 (ON HCJ), 1967 1 O.R. 96 at 101 are most appropriate here.

"This interpretation is consistent with what I believe to be the theory of the Act. The concept of an act which permits a majority of owners to secure the right to trespass upon the land of others for drainage purposes must be regarded as one of the earliest instances of socialistic legislation. The theory that a "man's house is his castle" was violated most drastically by the original legislation and its successors. It was and is important that every reasonable safeguard be built in the legislation of this kind..."

In accordance with Sections 58(3), 109 and 110, costs shall be paid by the Respondent from its general funds on the scale set out in Tariff "A", Rule 58.06 of the Ontario Annual Practice.

Dated at Newmarket, this 27th day of May, 1987.

William D. Turville

Ontario Drainage Referee

I have read and considered the following material:

1. A.G. Ontario v. City of Mississauga, (1981 33 (2d) 395 at 401.

2. Re: Birnamwood Investments Ltd. et al and Town of Mississauga (1973) 1973 CanLII 395 (ON HCJ), 2 O.R. (2d) 421 (HCI).

3. The Board of Trustees of the Continuation School of the Police Village of Dublin v. The Seaforth District High School Board, (1952) 1952 CanLII 67 (ON HCJ), O.R. 229 at 233.

4. Canadian Sugar Refining Company Limited v. The Queen, 1898 A.C. 735 at 741.

5. Re: Burns and Township of Haldimand, (1965) 1965 CanLII 171 (ON CA), 2 O.R. 768 at 772-3.

6. Re: H.G. Winston Ltd. and Borough of North York, (1978) 1978 CanLII 1566 (ON HCJ), 20 O.R. (2d) 737 at 740, 744-5.

7. Re: Hagen and City of Sault Ste. Marie, (1966) 1966 CanLII 508 (ON HCJ), 60 DLR (2d) 584 at 593-4.

8. James Kuchma v. The Rural Municipality of Tache, (1945) 1945 CanLII 27 (SCC), SCR 234 at 239.

9. Re: Regional Municipality of Ottawa-Carleton and Township of Marlborough, (1974) 1974 CanLII 520 (ON HCJ), 2 O.R. (2d) 297 at 301-303 (HCJ).

10. Re: St. Denis and Township of North Himsworth et al, (1985) 1985 CanLII 2209 (ON HCJ), 50 O.R. 482 at 484.

11. Serre et al v. Town of Rayside-Balfour, (1975) 1975 CanLII 768 (ON HCJ), 11 O.R. 779 at 780-1.

12. Sun Oil Company Ltd. v. The Town of Whitby, (1975) OWN 362 at 363-4 (C.A.).

13. Re: Tresnak and City of Oshawa et al, (1972) 1971 CanLII 444 (ON HCJ), 1 O.R. 727 at 728.

14. Rogers, The Law of Canadian Municipal Corporation, paras. 193.31 & .35.

15. Re: Howard and City of Toronto and Re: Sweet and City of Toronto, (1928) 1928 CanLII 427 (ON SCAD), 1 D.L.R. 952.

16. Alropa Corporation v. Holdcroft et al, (1938) OWN 498 (C.A.)

17. The Corporation of the City of Ottawa et al and Boyd Builders Limited, (1965) 1965 CanLII 1 (SCC), SCR 408.

18. Re: Canada et al and City of Winnipeg, (1984) 1984 CanLII 2928 (MB QB), 9 D.L.R. (4th) 234.

19. Re: Shaw and City of St. Thomas, O.P.R. 454.

20. Re: Sweetman and the Township of Gosfield, O.P.R. 293.

21. In Re: Hodgins and The City of Toronto, O.A.R. 80.

22. Re: Hamilton Powder Co. and Township of Gloucester, (1909) OWR 661.

23. McCormick and The Corporation of the Township of Howard, 18 O.R. 1889, 260.

24. Clapp v. Township of East Sandwich 1922, O.R. 180.

25. Eves v. The Corporation of the Township of Amherst Island, 1983.

26. Sharlmark Hotels Ltd. and Municipality of Metropolitan Toronto 1981 CanLII 1873 (ON HCJ), 1981, 32 O.R. (2nd) 129.

27. Re: Clements & Toronto 1960 O.R. (C.A.) 18.