ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Landmark v. Hay (Township)
1997 ONDR 3
1997-07-31
1997-03
STATUTE:
HEARING:
BETWEEN:
LANDMARK LTD.
APPELLANT
-AND-
THE MUNICIPALITY OF THE TOWNSHIP OF HAY
RESPONDENT
DECISION
This matter commenced when Landmark Ltd. served and filed an appeal on the 3rd day of January l997 in the Ontario Court (General Division) at the Court House in Goderich, Ontario.
The Appellant requested the following:
An order granting the Appeal and quashing By-Law 25-1996 of the Township of Hay;
A declaration that the Petition dated August 14 l995 is invalid and setting aside the same...
A declaration that the report of the Engineer dated April 16 l996 is invalid...
A declaration that the Respondent Township acted in bad faith in passing By-Law 25-l996...therefore the Bylaw is ultra vires...
An order extending time for the Appeal, if necessary.
At an informal meeting with the Referee in Guelph Ontario on the 23rd day of May l997, efforts to arrive at a satisfactory Procedural Order by consensus failed and it was decided to convene a Hearing of Record in the Court House at Goderich, Ontario. By agreement that Hearing proceeded on the 27th day of June l997 dealing with procedural motions made by both Counsel.
The Referee first heard a Motion made by Counsel for the Appellant requesting that an Order be made allowing examinations of discovery of the Engineer on the following issues:
l. (a) procedure taken in preparation of his report;
(b) steps taken to conform the validity of the petition;
(c) steps taken to comply with Section 9 of the Drainage Act;
(d) the design of the proposed drainage works;
(e) how the Engineer determined the area requiring drainage;
(f) investigations performed to address environmental issues, existing subsurface drainage, hydro geological studies, including water table levels and soil analysis, topographical and elevation studies and surveys of the land to be constructed upon;
(g) steps taken to determine the effects of encroachments and blockages to existing surface drainage systems;
(h) steps taken to envisage less expensive alternatives to the proposed drain.
An order for the production of an Affidavit of Documents by the Engineer including references to all the notes, memos and records made...
An order allowing the Appellants to subpoena the landowners... and/or compel their attendance as non parties to examinations for discovery.
An order for procedure at the hearing.
The Solicitor for the Respondent requested a Procedural Order providing for:
a declaration that the Appeal by the Appellant pursuant to Section 47 (1) of the Drainage Act, R.S.O. l990 is out of time and thereby be dismissed.
fixing the date for the hearing of the Application to quash the Provisional By-Law. Alternatively an order fixing the procedure to be followed in the within appeal;
refusing the Appellant's request to examine for discovery the Engineer.
The parties relied on the evidence as set forth in the affidavits filed and made submissions with respect to their respective positions.
Only a very limited review of the facts is required here, both because there was agreement between the parties with respect to much of the evidence and because the submissions related primarily to procedural matters.
The evidence revealed that on or about the l4th day of August, l995 the Township received a Petition signed by a number of ratepayers located in a newly created lakeside subdivision which petition requested that the Township undertake a drainage project pursuant to the Ontario Drainage Act. An Engineer was appointed and at an On-Sight Meeting convened on October 9 l995 Landmark Limited was inadvertently not provided with a Notice. At a second meeting to discuss the preliminary proposal held on the l0th day of February 1996, Landmark Limited once again was not present, having not been notified. On March 12, l996 the Drainage Engineer filed with the Township a Report dated February 15 l996 respecting the Norman Heights Municipal Drain. Landmark Limited had a very substantial interest in the drainage project being the owner of a majority of the land in the assessed area.
The Township became aware that Landmark Limited had not been notified and on March 25 l996 sent a letter requesting their presence at a meeting to discuss the proposal on the llth day of April l996. At that time a representative of Landmark Limited, namely Mr. Stark, met with the Township Engineer, Paul Elston, and the Township Reeve, Murray Keys to discuss the proposal. Beyond this point there is disagreement as to what transpired at the various meetings. Subsequent meetings included the meeting of May 11 l996 to consider the Report and the Court of Revision which was held on the 8th day of June l996. The material filed by the Township indicated that the Drainage Engineer was willing to repeat the process of the on-sight meeting etc., but was advised by Mr. Stark that it was not required and that the Report should proceed. The evidence filed by the Appellant indicated that Mr. Stark was not pleased with the Drainage Report, objecting to the absence of the Drainage Engineer when the Report was considered on May 11 l996 (another Engineer from the firm was present) and believing that the cost of the Report was grossly under estimated. Mr. Stark's evidence alleged that a proper analysis of encroachments to the natural drainage including the back-filling of swales and culverts had not been properly considered. In addition to the failure to answer many technical questions the Appellant objected to the termination of questions by the Chair. Landmark Limited therefore claimed that they were denied the opportunity to have input into the Petition process including the right to discuss matters with the other Petitioners at an early stage and subsequently were denied the opportunity of having significant input into the Engineering Report.
Landmark Limited appealed to the Ontario Drainage Tribunal which gave a Decision dated the 2nd day of October l996, which Decision dismissed the Appeal of Landmark Limited with costs assessed against Landmark Limited. The Tribunal had considered two issues in the Appeal, namely (a) the modification of the Drainage Report; and (b) the fairness of the assessments.
Ms. Evans, solicitor for the Respondent, in her submissions, argued that the Appellant must divide his Appeal into two parts, namely (a) Section 47 (l) Appeal; or (b) a general motion to quash the by-law. She argued that the Section 47 (l) appeal related only to matters arising from the Drainage Report. The second part, she argued, namely the motion to quash the by-law, related to the actions of the Municipal Council.
Dealing first with the Section 47 (l) Appeal, she stated that the Appeal had clearly not been filed within the time frame provided by the Act, namely within 40 days of the mailing out of the notices. Ms. Evans indicated that the last day for filing would have been the 24th day of June l996 whereas the Appeal was not filed until the 3rd day of January l997. She quoted Section 47 (l) of the Drainage Act
"47.-(1) Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a written notice of appeal shall be served upon within forty days after the mailing of the notices under Section 30 or subsection 46 (2), as the case may be."
Ms. Evans acknowledged that the Referee had the discretionary authority to extend the time limits, but inasmuch as the Appellant had proceeded with the appeal to the Ontario Drainage Tribunal she claimed there were no extenuating circumstances to justify an extension of the time allowed for the Appeal. She argued that the Section 47 (l) Appeal contemplated a speedy appeal and corrective action before further costs would be incurred by a municipality. She pointed out that the Drainage Tribunal had already dealt with the issues of:-
(a) modification of the Report and
(b) assessment in a hearing where the Appellant had every opportunity to present his claims.
Finally, Ms. Evans argued that the Referee should not take a technical view of the matter, but should give weight to the general principle recognized by the Appellate Courts in considering extensions of the time, namely the chances of the Appellant's success in an Appeal. She noted that the Tribunal had already dealt with the substantive issues. If the process had to start all over, the Appellant would not likely succeed in having the Report modified or the assessments changed in view of the Decision of the Ontario Drainage Tribunal. In conclusion Counsel for the Respondent conceded that the Appellant's application to quash the by-law was properly before the Court and accordingly her objections were directed to the Section 47 (l) Appeal.
Mr. Seed, making his submissions on behalf of the Appellant, advised the Referee that he had not made a Section 47 (l) appeal, but rather had made an appeal only to quash the by-law. He pointed to the decision of Judge Clunis of May l966 in the Lawrence McKeen vs. Township of East Williams which he claimed held an "invalid Petition resulted in an invalid by-law." He stated that Landmark Limited had been dealt a great injustice by not being notified of the Drainage Project at an early stage depriving it of an opportunity to consult with the Petitioners. He also argued that the Appellant failed to have an input at the site meeting and at other preliminary meetings in the development of the project and report. Mr. Seed also referred to the more recent case of Belzner et al v. Town of Dunnville decided by Richard T. Johnston, Ontario Drainage Referee on the l4th day of January l992. He pointed out that in that case the Referee had decided that an invalid petition was sufficient grounds for setting aside the Drainage Report. Mr. Seed advised that there were many defects in the Petition, including an insufficiently described drainage area, invalid signatures and improperly described property, amongst other irregularities. He maintained that a grave breach of natural justice had been suffered by Landmark Limited which owned over 75% of the land affected. Counsel for the Appellant referred the Drainage Referee to the case of Broeders. vs. Wolfe Island decided by Referee, William Turville, in l987 in which Mr. Seed argued that the By-law was quashed because the Appellants had not had prior notice and an opportunity for input before it was passed by Council. He concluded by advising that it was also the duty of the Drainage Engineer to define "the area requiring drainage". He maintained therefore that he was entitled to examine the Drainage Engineer on the matter of the validity of the Petition and on the matter of the area requiring drainage.
Ms. Evans, in her reply, indicated that she had no objection to a full trial of the issues with viva voce evidence and subpoenaed witnesses. However, she argued that there had been no denial of natural justice because the Appellants had been given an opportunity by the Drainage Engineer to re-start the whole process and the Appellants had enjoyed a full hearing before the Ontario Drainage Tribunal. She argued that any challenge with respect to the Petition should have been launched pursuant to Section 47 (l) because it constituted part of the Drainage Report. She concluded by stating that the authority to quash a municipal by-law arises from the Municipal Act, not from the Drainage Act and the issues are narrowly restricted to the conduct of Municipal Councils.
HAVING HEARD THE EVIDENCE FILED and HAVING HEARD THE SUBMISSIONS OF COUNSEL, I HAVE CONCLUDED:
(a) That the Appellant was not proceeding with the Section 47 (l) Appeal.
(b) That because the Appellant was not proceeding with the Section 47 (l) Appeal, but rather with the application to quash the by-law that he should be restricted with respect to the issues that he can pursue.
(c) That the right to discovery of the Drainage Engineer and the production of documents should be granted, but it should be restricted to issues relating only to matters involving the Petition and the conduct of Counsel in proceedings pursuant to the Drainage Act. Specifically it should not deal with issues relating to the modification of the Report or assessment and allowances.
(d) That a full trial of the issues should be granted as suggested by both Counsels and that the right to subpoena witnesses should be granted.
Although there was considerable argument with respect to the reasons why time for filing an appeal should not be extended, the matter was resolved when the Counsel for the Appellant advised the Referee during the course of the Hearing that his Appeal was not based on a Section 47. Consequently, it was not necessary for the Referee to determine whether or not there were grounds for an extension of the time. Counsel for the Township of Hay was correct in asserting that certain matters particular to the Drainage Report ought properly to be raised in an appeal pursuant to Section 47 (l), specifically technical issues of design, assessment and allowances. However, it should be noted that in the Dunnville case referred to previously, the Referee dealt with the issue of the principles of assessment in a Section 47 (l) appeal and appeared to quash the by-law on that grounds alone. In some circumstances the grounds for extending the time for appeal, pursuant to Section 47 (l) might be required where there has been a breach of legal or procedural correctness in Drainage Act proceedings resulting in denial of natural justice. In this case, however, we have the unique circumstance where a full Drainage Tribunal Hearing has been conducted, both with respect to issues involving the modification of the Drain and the consideration of assessment and allowances. The Referee therefore will be prepared at a subsequent hearing to deal with issues involving the sufficiency of the petition and the correctness
of proceedings by Counsel pursuant to the Drainage Act, but will not deal with the issues relating to the modification of the design, assessments or allowances. Accordingly, the Discovery of the Engineer and the production of documents will not deal with matters relating to the modification, assessment or allowance issues.
Therefore the Referee will be prepared to sign an Order as requested by the Appellant Landmark Limited allowing for Examinations for Discovery on the issues of:
- (a) procedure in the preparation of his Report;
(b) steps taken to confirm the validity of the Petition;
(c) steps taken to comply with Section 9 of the Drainage Act;
(d) how the Engineer determined the area requiring drainage;
An Order for production of affidavit of documents by the Engineer including reference to all notes, memos and records made as they relate to the Drainage Petition and the various meetings affecting landowners. Such production shall not include design or matters relating to assessment or allowances.
An Order allowing the parties to subpoena various landowners who signed the petition or attended at meetings to discuss the proposed work.
An Order fixing the date for hearing the application to quash the provisional by-law after consultation with Counsel for the parties as to appropriate dates.
The issue of costs on these respective applications will be reserved and Counsel will be invited to make representation with respect to the same at the conclusion of the Trial.
DATED at Pembroke, Ontario this 31st day of July A.D. l997
Delbert A. O'Brien, Q.C.
Ontario Drainage Referee