Howard (Township) v. Heyboer, 1996 ONDR 3

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Howard (Township) v. Heyboer

1996 ONDR 3

DATE OF DECISION:

1996-04-16

1996-03

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF HOWARD and FOSTER GILLESPIE

APPELLANTS

-AND-

PETER HEYBOER

RESPONDENT

REASONS FOR JUDGEMENT

This Appeal was from a Decision of the Ontario Drainage Tribunal dated the 21st day of March 1995 made pursuant to Section 106, Subsection 2 of the Ontario Drainage Act, 1990 Chapter D17. It was heard in the City of Chatham on the 14th day of March 1996.

Paul Courey, Barrister and Solicitor, appeared for the Appellant and Peter Heyboer, the Respondent appeared personally.

At the outset Counsel for the Appellant advised the Referee that the Appellant was seeking a Judicial Review and that accordingly the Referee and jurisdiction, notwithstanding the provisions of Section 101 of the Drainage Act.

Originally, Peter Heyboer, (the Respondent herein) had appealed to the Ontario Drainage Tribunal with respect to his assessment pursuant to a Drainage Report prepared by the late William D. Colby, P.Eng. and confirmed by the Court of Revision held on September 26, 1994. The project had been initiated by a Petition made by Foster Gillespie, a riparian owner at the downstream end of the municipal drain, who wished to have a portion of the drain located on his property cleaned and an area of erosion damage repaired.

The Drainage Superintendent for the Township of Howard had examined the site of the complaint and suggested that repairs could be made without the report of a Drainage Engineer for the approximate sum of $500.00. However, as a result of discussions, the Township of Orford through which the upstream portion of the drain passed requested that a Drainage Engineer be engaged. The late William Colby, a Drainage Engineer of vast experience, was accordingly employed. Mr. Colby prepared a modest report with a projected total cost of only $4,527.00 and an engineering fee estimated at only $700.00. Pursuant to the Colby Report the total assessment of the Petitioner, Foster Gillespie, was $708.00 for 12.3 hectares and the assessment of Heyboer Farms Ltd., as upstream owners for 68.0 hectares, was the sum of $760.00.

The Ontario Drainage Tribunal heard the Appeal of Heyboer Farms Limited on the 17th day of January 1995 and adjusted the assessment by increasing the assessment against the downstream lands of Foster Gillespie. The Tribunal imposed a special assessment increasing the total Gillespie assessment by the sum of $985.00.

The central issue, considered by the Drainage Tribunal, was what portion of the cost relating to the areas of erosion in the drain, namely Station 11 + 00 and Station 12 + 15 should be assessed to the adjoining owner (Gillespie) and what portion should be assessed collectively to all upstream owners.

Mr. Colby had assessed the cost on a ratio of approximately 70% upstream and 30% to the adjacent owner. His assessment was supported at the Hearing by the Drainage Superintendent of the Township of Howard and by Mr. Sullo, P.Eng., a Drainage Engineer who had been called as an expert witness by the Township of Howard.

The Ontario Drainage Tribunal found as a fact, based primarily on its own observations at the site, that all of the erosion at the site Station 11 + 00 was caused by surface flows into the Drain from adjacent lands and that most but not all of the erosion found at Station 12 + 15, was caused by flows into the Drain from adjacent lands. The Tribunal accordingly assessed all of the repair costs as a special benefit assessment at Station 11 + 00 to the adjacent owner, Gillespie, and 80% of the costs at Station 12 + 15. The balance, namely 20%, being assessed against all the owners on the Drain upstream.

The Township of Howard subsequently filed an Appeal of the Ontario Drainage Tribunal decision with the Ontario Drainage Referee.

Mr. Courey advised the Referee that he had not been able to obtain a transcript of the previous hearing. He advised that he was unable to provide it because the tapes provided by the Drainage Tribunal of its proceedings simply could not be satisfactorily reproduced.

The first issue raised by Mr. Courey was his request for a technical amendment of the Style of Cause. He explained that the Respondent ought to be described as Heyboer Farms Limited. The Respondent agreed that he was appearing personally on behalf of Heyboer Farms Limited, the registered owner of the lands assessed pursuant to the Drainage By-law. On consent, the Order was therefore made.

The second issue raised by the Appellant was the timing of the original appeal by Heyboer Farms Limited which had been two days late in being filed. The Ontario Drainage Tribunal had granted leave to file the late Appeal pursuant to Section 100 of the Ontario Drainage Act. Mr. Courey argued that Section 54 (1) of the Drainage Act clearly required the Appeal to be filed within twenty-one (21) days of the Decision of the Court of Revision. Mr. Heyboer, he stated with the knowledge of a previous municipal councilor, had no valid excuse for the late filing. He argued that the Tribunal had erred in allowing the late filing.

The third issue to which the Appellant directed the Referee's attention was what he described as an error made by the Ontario Drainage Tribunal in having made the following statement in its Decision:

"From the evidence and the material before us, it appears as though the Appellant was not given written notice of the Decision of the Court of Revision nor was he informed that if he wished to appeal to the Ontario Drainage Tribunal he must do so within twenty-one days of the date that the Court of Revision renders its decision.

In our view the Clerk of Howard should have provided the Appellant with specific instructions as to the filing of the Appeal to the Tribunal".

Page 2 O.D.T. Decision

Mr. Courey stated that the Drainage Act does not impose any such duty on the Clerk of a Municipality and accordingly the Drainage Tribunal erred in making such a statement in its Decision. The Appellant stated that there was no such statutory requirement and requested that the Referee make a declaration so as to remove any doubt as to the statutory requirements.

Fourthly, Mr. Courey stated that the Ontario Drainage Tribunal erred in its treatment of the evidence of the Drainage Engineer, Enio Sullo, P.Eng. as well as in its treatment of the evidence of Donald Gelderland, Drainage Superintendent for the Township of Howard. He pointed out that despite the fact that Mr. Sullo was described on page 3 of the Decision as having a wide range of engineering experience, including drainage engineering, on page 10 of the Decision in the final paragraph the Tribunal stated:

"When Mr. Sullo and Mr. Gelderland were called on by Howard to support the Report, this reasoning was not open to them to use, of course, since they had not prepared the Report. Instead, they must look for some logical reason that would support the cost split of 30% to the adjoining lands and 70% upstream as set out in the Report. Clearly the only logical reason for such a split is that 70% of the erosion is being caused by the upstream lands and 30% by the adjoining lands and this is how the two witnesses logically rationalized the assessment as levied by Mr. Colby".

Mr. Courey argued that the Drainage Tribunal erred in imputing to the Drainage Engineer the motive that he only wished to rationalize the Colby assessment and that it was not "open to them" to exercise independent judgement.

Mr. Courey further went on to state that the Drainage Tribunal further erred in improperly characterizing the evidence of Gelderland as being influenced by his position as an employee of Howard Township. On page 9, final paragraph the following appears in the Reasons for Decision:

"In weighing Mr. Gelderland's evidence, it is incumbent upon us to keep in mind that he is an employee of Howard. From the tenor of the evidence at the hearing, it appears as though this has become a contest between the Councils of the two municipalities. In the circumstances there is a natural propensity most likely subconscious, for Mr. Gelderland to gravitate to a theory of failure most advantageous to his employer".

Mr. Courey argued such an inference was unfair and was not supported by the evidence.

The Appellant further argued that the credibility of Mr. Sullo, P.Eng. was impugned by irrelevant considerations. On page 8 of the Reasons for Decision, final paragraph, the following statement was made:

"Mr. Sullo, P.Eng. was called as a Drainage Engineer and his evidence was given as an expert in drainage. However, Mr. Sullo had only visited the site on two occasions for the purpose of giving evidence at the hearing. He did not have an opportunity to talk to Mr. Colby. He took no part in the investigation and design of the proposed erosion control works. He has not done any work in Howard as a Drainage Engineer".

Mr. Courey noted that these were not relevant considerations particularly inasmuch as there was no evidence as to how much time Mr. Sullo had spent on the drain during the occasion of his two visits.

Fifthly, Counsel for the Appellant argued that the Tribunal was influenced by irrelevant considerations, namely the suggestion that there was a conflict between the two municipalities such as would by implication affect the judgement of not only the Drainage Superintendent for Howard, but as well influence the judgement of Mr. Sullo, P.Eng. Mr. Courey filed an affidavit of the Clerk of the Township of Howard which set forth that there had been no conflict between the Townships when this drainage project was proceeding.

Sixthly, Counsel for the Appellant objected to the reliance on unsworn evidence of an unnamed witness. He referred to a statement on page 3 of the Reasons for Decision of the Tribunal.

"Another assessed owner testified that Mr. Heyboer is a conscientious conservationist. He has received the award of "Conservationist of the Year". He uses appropriate farming practices. Whenever a washout occurs on his lands, he immediately repairs it by rip rap or a drop structure".

Mr. Courey argued that not only was the above mentioned evidence unidentified and unsworn, but it was irrelevant and should not have formed part of the Reasons for Decision. Once again, he pointed to the affidavit of the Clerk of the Township of Howard, Mr. Campbell, which set forth that the unknown witness, although unsworn and unidentified, did give evidence.

Finally, the Appellant argued that there was an apprehension of bias evident in the Hearing before the Ontario Drainage Tribunal. He pointed to page 7 of the Decision, fourth paragraph, where it states:

"We have visited the site of the Abray Drain on two occasions; first prior to the Hearing and the second, subsequent to the Hearing. On the first visit, we examined the locations of the damage quite carefully. We formed a tentative opinion that the damage was caused by surface water flows into the drain".

(underlining added)

"Because the preponderance of the evidence at the hearing was that the damage was caused by waters flowing in the drain, we made a second visit to the site. That visit confirmed our first impression".

Mr. Courey argued that the attendance by the Tribunal at the site before the Hearing and the formation of a tentative opinion before hearing any evidence resulted in an apprehension of bias. It was submitted that the Tribunal formed an opinion before they had heard all the evidence which interfered with their ability to weigh the evidence in a balanced manner. He further argued that as a result of the preconception the Tribunal reversed the onus of burden of proof at the Hearing. Mr. Courey stated that a complete reading of the Reasons for Decision illustrated that despite the preponderance of the evidence given and despite the fact that the only expert evidence presented supported the Drainage Report, the Tribunal displayed a propensity to discredit all evidence given which did not concur with their tentative opinion.

In conclusion, Mr. Courey argued that the Decision of the Drainage Tribunal ought to be set aside on grounds of Procedural Error and that the Referee, pursuant to Section 106 of the Act, Subsection 2, ought to substitute his own Decision for that of the Tribunal.

Mr. Peter Heyboer, the Respondent, also gave evidence. He stated that in his opinion, there was evidence of some conflict between the two municipalities. He further stated that Mr. Gillespie, because of improper farming practices with respect to erosion control was the author of his own misfortune and ought not to look to other owners along the Drain to share in the expense of repairs on his property. He further advised that the original estimate of costs, namely $500.00 or less was unrealistic inasmuch as one load of stone would cost $500.00 or more. Mr. Heyboer then called as his own witness, Mr. Aartsen, a member of Council for the Township of Orford. Mr. Aartsen advised that in fact Mr. Colby had been dismissed as Drainage Engineer by Orford Township some time in the past. He stated that he had examined the subject project immediately after the Petition was filed and was of the opinion that the damage to the drain was cause by surface water run-off from adjacent lands. He stated that at the meetings he attended with Howard Township officials there had been no strong words or any other indication of controversy.

The first issue of concern to the Referee was that of jurisdiction. Section 106, Subsection 2 of the Drainage Act provides for general right of appeal from the Drainage Tribunal. Section 101 of the Drainage Act precludes a right of appeal with respect to most substantive matters. However, accepting that the Drainage Act is remedial legislation and noting that there is a general right of appeal to the Referee it must be concluded that the matter of judicial review was to be left open for consideration by the Drainage Referee. The Statute provides a general right of appeal, and it is not limited to questions of law and/or jurisdiction.

In all cases where there is a general right of appeal:

"The failure by the first instance statutory decision maker to adhere to the Rules of natural justice are proper grounds for appeal in all situations where the Rules apply".

Canadian Encyclopedia Digest 3rd Edition, Title 3

Administrative Law, Page 3-247

As Referee I am therefore satisfied that I have jurisdiction to entertain appeals from the Ontario Drainage Tribunal with respect to matters normally subject to Judicial Review, more particularly in areas dealing with the application of the Rules of Natural Justice, etc.

Dealing in order with the matters raised by the Appellant, firstly the technical motion to amend the Style of Cause to Heyboer Farms Limited. As a consent was evident, it presented no problems and was granted.

Secondly: the issue of late filing of the Appeal of the Respondent. In my view, the Decision of the Tribunal was properly taken, no prejudice having been shown.

The next issue was more complex, namely statements made by the Drainage Tribunal as to the responsibility of Municipal Clerks with respect to advising Appellants of their rights of appeal to the Drainage Tribunal. I would agree that it is a courtesy that ought to be extended to the Appellants, but certainly it is not a mandatory requirement of the Statue. The Clerk did not err in failing to so notify the Appellant.

The statements in the Decision characterizing the evidence of the Professional Drainage Engineer, Mr. Sullo, P.Eng. as being influenced by his desire to support the Drainage Report to the extent that it impaired his independent judgement as a Professional are very troublesome. Equally is the suggestion that the Drainage Superintendent for Howard Township was influenced in his judgement by the fact that he was an employee of Howard Township. In addition, the Drainage Tribunal appeared to give in its Reasons for Judgement the impression that the alleged conflict between the two Townships Orford and Howard in some way influenced the Drainage Engineer and the Drainage Superintendent in presenting their evidence. In the absence of a transcript, it is very difficult to determine what evidence was available to the Tribunal. I note in the evidence presented to the Referee the Council Member for the Township of Orford, Mr. Henry Aartsen, suggested that there appeared to be no conflict.

Equally worrisome is the allegation of "the apprehension of bias" in the Tribunal. Mr. Courey argued that such a belief was based on the statement made in the Reasons for Decision to the effect that the Tribunal visited the site before the Hearing and formed a tentative opinion. As Drainage Referee, I have held the view that it is an undesirable practice to attend the site before a Hearing. Not only is there a tendency to form fixed opinions before all the evidence is heard (particularly explanatory evidence) but also because there is a very great danger that persons on site will approach the decision maker presenting evidence before an opportunity is given to warn them that such approaches are improper. Attendance after a Hearing can be judiciously arranged, possibly in the presence of both parties and their Counsel. Unfortunately it has been my experience that when parties learn that the decision-maker has attended the site before the Hearing, there is an apprehension, justified or not, that the decision-maker might have already arrived at a decision.

Finally, the matter of what weight should be given to the issue of the unknown and unsworn witness. Because it was referred to in the Reasons for Decision, it is very difficult to argue that it was not a relevant consideration. Although the Rules do not require that all evidence be sworn, the basic principles of natural justice demand in circumstances where a witness can easily be both identified and sworn that both be done.

The above mentioned matters although not perhaps singularly sufficient to raise serious doubts with respect to the appropriateness of the decision, collectively in my mind are sufficient to require that the decision be set aside.

The Drainage Tribunal, on the scale of Government Agencies has a function that is primarily adjudicative. Many boards and tribunals are primarily administrative, frequently policy making in function. Many determine a citizen's rights with respect to access to some government privilege, licenses, etc. The Drainage Tribunal is at the opposite extreme, functioning very much like a Court, determining issues not between government and client, but rather between independent parties in matters of property interests of a very weighty nature. The Drainage Act empowers the Drainage Tribunal to make decisions which extend to measures of expropriation, taxation, land use, etc. involving at times millions of dollars and involving multiple municipalities. The Ontario Drainage Tribunal must, in my opinion, be very conscious of the need to adhere to the Rules of Natural Justice in the strictest possible manner. The traditional law relating to reasonable apprehension of biased testimony applies with full force to decision makers whose function is primarily adjudicative. Such a proposition was expressed in the decision of Newfoundland Telephone Company Limited vs. the Board of Commissioners of Public Utilities. In the above mentioned case which can be found in 1992 Supreme Court Reports, Page 623, it was said:

"There is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts; there must be no reasonable apprehension of bias with regard to their decision. At the other end of the scale of boards with properly elected members, the standard will be much more lenient. In such circumstances a reasonable apprehension of bias occurs if a board member pre-judges the matter to such an extent that any representation to the contrary would be futile".

The Board went on to say "the denial of right to a fair hearing cannot be cured by the Tribunal's subsequent decision. A decision of a Tribunal which denied the parties a fair hearing cannot simply be voidable and rendered valid as a result of the subsequent decision of the Tribunal".

In the Supreme Court decision of Kane vs. the Board of Governors of the University of British Columbia, reported on (1980), 1980 CanLII 10 (SCC), 110 D.L.R. (3d) 311 (S.C.C.), the Supreme Court overruled a decision made by the Board of Directors of the University after they had received limited evidence from the President in the absence of the other party in circumstances where the other party was not aware. In that decision on page 323, Mr. Justice Dickson quotes Pfizer Co. Ltd. vs. Deputy Minister of National Revenue for Customs and Excise (1975), 1975 CanLII 194 (SCC), 68 D.L.R. (3d) 9 in which Mr. Justice Pigeon said,

"While the Board is authorized by Statue to obtain information otherwise than under the sanction of an oath or affirmation… this does not authorize it to depart from the rules of natural justice. It is clearly contrary to those Rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet".

It is easy for Tribunals to drift away as a matter of convenience from the basic principles of natural justice. It is regrettable that in the present circumstances there is no adequate record of proceedings from which the Referee might make a more substantial decision with respect to the various allegations made by the Appellant. Unfortunately, the absence of that transcript places a greater responsibility on the Referee to ensure that there was no breach of natural justice.

I am therefore of the opinion that I have no choice but to set aside the decision made by the Ontario Drainage Tribunal and to restore the assessments made by the Drainage Engineer in the Report, which assessment was confirmed by the Court of Revision. The Referee, in other circumstances, might be inclined to substitute his own decision having acquired considerable expertise in the field of assessment, but because of the absence of a transcript there is simply insufficient evidence with which to make such a determination of this Appeal.

With respect to the issue of costs, although the Township of Howard and its counsel ought to be commended for undertaking this appeal with respect to the issues of natural justice, in the circumstances, I believe it would be unfair to award costs against the Respondent, who at all times in my opinion, acted in good faith. Consequently, there will be no order as to costs.

DATED: April 16, 1996

DELBERT A. O'BRIEN

ONTARIO DRAINAGE REFEREE