ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Horne et al. v. North Easthope (Township) and Stratford (City)
1992 ONDR 2
DATE OF DECISION:
1992-08-05
1992-02
STATUTE:
Drainage Act
HEARING:
BETWEEN:
HORNE, DEMPSEY ET AL
and
NORTH EASTHOPE AND CITY OF STRATFORD
MOTION RECORD
NAME: MOUNTAIN, MITCHELL, HILL, MONTEITH & RITSMA
BARRISTERS & SOLICITORS
MICHAEL E. MITCHELL SOLICITOR
E N D O R S E M E N T
JOHNSTON. R. - Drainage Referee August 5th, 1992
Paul Courey appearing for the Appellants. Michael E. Mitchell appearing for the Respondent Township of North Easthope. A. Paul Parlee appearing for the Respondent City of Stratford.
This was a motion of the Respondent Township of North Easthope heard immediately after the Appellants Motion in the above matters. The Respondent Township is asking that both the Horne and Dempsey and Vanderschot appeals be summarily dismissed basically on the grounds that they are an abuse of process.
It is the submission of Counsel for the Respondent Township that the appeals are form without substance. The appeals cannot accomplish anything. The matter has been completely dealt with by the Tribunal.
Let me examine this proposition: Can these appeals accomplish anything? While there may be a right of appeal, should I exercise my discretion to summarily dismiss them if these appeals cannot accomplish anything; if there is no issue to be decided between the parties. I am of the opinion that I have the right to regulate my own procedure on the basis of Oatway v. Canadian Wheel Board 1945 CanLII 43 (SCC), [1945] 2 D.L.R. 145, a decision of the Supreme Court of Canada. At page 152 of that case Rinfret, C.J.C. stated:
“It is far from being the first time this Court has been called upon to decide in such a way on appeals which, on their face, appear either to be devoid of any substance or merit, or to require a speedy decision. It is not necessary to advert beyond the year 1926 when this Court in National Life Ins. Can McCoubray, 1926 CanLII 73 (SCC), [1926] 2 D.L.R. 550, SCR 277, held that if an appeal, though within the jurisdiction of the Court, be manifestly entirely devoid or merit or substance, the Court will entertain favourably a motion to quash it.”
and later at p. 153 the Chief Justice further quotes from the McCoubray case:
“It was said that every Court of Justice has an inherent jurisdiction to prevent such abuse of its own procedure; and an appeal having such manifest lack of substance as would bring it within the character of vexatious proceedings designed merely to delay should not be entertained.”
The first matter to be examined is my appellate jurisdiction in regard to the Tribunal.
Section 51(1) of the Act gives the Tribunal board jurisdiction:
“... 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 or as it considers proper to carry out the purposes of this Act.
The Tribunal may set its own procedure and determine what evidence it will accept.
Its decision is final on appeals under sections 8, 10, 48, 49, 50, 54, 64, 65, 66 and 75 of the Act. The appeals to the Tribunal in this case were under sections 48, 49 and 54 of the Act.
The Tribunals decision in this case cannot be appealed to me for the following reasons:
(a) Its decision is final as it is a decision under sections 48, 49 and 54. Counsel for the Appellants urged me to accept appellate jurisdiction on two grounds.
(i) the Tribunal erred in accepting evidence it should not have; and
(ii) it decided to reduce the Dempsey allowance even thought the amount of the allowance was not specifically appealed by any of the appellants to the Tribunal.
In regard to the first ground, it is my view that the Tribunal may determine what evidence it will or will not accept. In regard to the second ground, I can understand the frustration of the appellant Dempsey who thought he had a deal with the Respondent Township for an allowance of $26,200 only to have the Tribunal reduce it to $7,500 on its own initiative without hearing any evidence from Mr. Dempsey as to the reasonableness of the allowance. Even though Mr. Dempsey may have been at the Tribunal hearing he may not have felt it necessary to give any evidence on the issue of the allowance. However, it is my view that section 51 (1) is broad enough to allow the Tribunal to change the allowance and as appeals were under sections 48, 49 and 54 of the Act, I do not have the jurisdiction to interfere with the Tribunals decision.
In my view, my appellate jurisdiction of the Tribunal only extends to matters not precluded by s. 101 of the Act and in the present case, if the Tribunals decision which it imposed on the engineer had elements which did not comply with the requirements of the Act. Pages 10 and 11 of the Tribunals decision requires some analysis.
At the top of page 10, the Tribunal says it does not have jurisdiction to set aside a Report of the Engineer but that jurisdiction lies with the Drainage Engineer under s. 106 of the Act. If the Tribunal is correct in its view, it is in trouble because what it has done in this case is set aside the Report and directed a Report in a specific manner. Its decision is not a modification of the Report but a directed “new” Report. I am of the opinion however that the Tribunal has the ability to require a new report and to direct a specific route for the drain in that report. Its authority is section 51 (1) of the Act.
At the bottom of page 10 of the Tribunals decision, the Tribunal states:
“If all the costs of the work are assessed against the City of Stratford, there will be no further Appeals on the amended Report.”
If this means that the Tribunal is attempting to bar any further appeals to itself or the Referee on the Engineers Report dated June 15, 1992 either on the substance of the Report or assessments thereunder the Tribunal is wrong and I may be applied to under section 106 (1)(d) to direct the Tribunal to hold a hearing in regard to appeals which may be made to it under that Act. The issue of the allowance set out in the new Report could be appealed to the Tribunal by Mr. Dempsey. He has a right to appeal. Even though the Tribunal seems to have made its decision as to the amount of the allowance. Such an appeal will not be an abuse of process.
To summarize:
(a) I do not have jurisdiction to review the Tribunals decision as to the process it uses to reach its decision (i.e. the introduction of evidence, reviewing allowances on its own initiative or directing the Engineer on how to prepare a new Report) on appeals under s. 48 and 49. This is a matter of judicial review, if it is available; and
(b) I can direct the Tribunal to hold hearings on appeals to it under the Act if it refuses to hold such hearings.
What remedy can I then provide the Appellants even if I have a full hearing of their appeals? I will deal with each appeal separately.
(a) the Horne and Dempsey appeals. Counsel for the Appellants admitted their ground of appeal are really an appeal of the Tribunal decision on the grounds of procedural fairness (admitting improper evidence and cutting back the allowance on the Tribunals own initiative). No other specific grounds of appeal were advanced by the Appellants counsel, although asked. I have indicated above that I cannot assist the Appellants on these grounds. An Appellant should know his or her grounds of appeal at the time he or she launches the appeal. In other words, an appeal is not a license for a fishing expedition. The Tribunal decision is a watershed. As far as I am concerned, any procedural irregularities or failure to comply with the Act prior to that decision are no longer of any importance. I will deal in more detail with this when I deal with the Vanderschot appeal. However, in this case, the appeal was launched before the report appealed from was finalized and the appellants did not have an opportunity to review the report to see if it complied with the requirements of the Act. Therefore the Appellants Horne and Dempsey will be allowed to prosecute their appeal but only on grounds appearing in the June 15, 1992 Engineers Report and not on any grounds prior to that time.
(b) the Vanderschot appeal. Counsel for the Appellants advance only one ground for this appeal: The Engineer did not discharge his duties under s. 11 of the Act. Counsel for the Township and the City argued that even if this is the case, would the Tribunal ever come to another conclusion as to the drain it preferred. It is no longer the Engineers judgment or conduct that is being challenged, it is the decision of the Tribunal both as to route and allowances. The Engineer is now only carrying out the Tribunals direction. It is my view that, having read the Tribunal decision, the Tribunal will not change its mind as to the drain it has directed the Engineer to design. A decision of another panel of the Drainage Tribunal that differed from the present decision might be challenged on the basis of res judicate. The Tribunal heard from Mr. Vanderschot’s engineer and as well as an Engineer for the City and the Engineer who prepared the report as well as other witnesses. They have fully canvassed the route proposed by Mr. Johnson in his May 16, 1991 report as well as alternatives thereto. It is difficult to imagine what other evidence could be introduced. The matter has been fully canvassed.
Since the ground of Mr. Vanderschot’s appeal is that the Engineer did not discharge his judgement in carrying out his duty under the Act and since the Engineer’s judgment has been substituted by the Tribunals judgment, this ground of appeal is no longer in existence. Since this appeal was launched after the June 15, 1992 report and the Appellant did have an opportunity to review the report to see if it complied with the requirements of the Act, the Appellants Vanderschot will not be allowed to prosecute his appeal. I order that the Vanderschot appeal be dismissed.
Although not necessary to my decision, I wish to make some comments that may affect how engineers conduct themselves in preparing Drainage Reports.
Clearly the Engineer in this case did not discharge his duties under section 11 of the Act in preparing the May 16, 1991 Report. In exercising his quasi-judicial function under the Act, the engineer shall to the best of his skill, knowledge, judgment and ability, honestly and faithfully, and without fear or, favour to or prejudice against any person perform the duty assigned to him in connection with any drainage works and make a true report thereon.
The Engineer tried to give everything something. In doing so he lost his own best judgment as to what the report should contain. He should not write a report in hope that the Tribunal might relieve him, on appeal, of positions he did not believe in, but has advanced to placate local municipalities and land owners.
Part of the problem arises from the fact that the Engineer in this matter is both the Drainage Superintendent for the Township and the Engineer appointed by the Township to prepare this report. The practise is to be frowned upon. There is a built in conflict in having the same person writing a report for a drain and yet perhaps dealing with the same drain on a day to day basis. As an employee of the municipality there is a built in conflict when he must exercise independent judgment when his best judgment may be different than the interests of the municipality. Drainage Superintendents should not act as Drainage Engineers for municipalities who employ them as Drainage Superintendents.
R. Johnston
Drainage Referee