ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Bland-Blen (Township) v. Krift
1997 ONDR 4
DATE OF DECISION:
1997-08-27
1997-04
STATUTE:
HEARING:
BETWEEN:
THE CORPORATION OF THE TOWNSHIP OF BLANDFORD-BLENHEIM
PLAINTIFF
-AND-
JELLE VAN DER KRIFT
RESPONDENT
D E C I S I O N
The Ontario Drainage Referee heard an appeal of the Corporation of the Township of Blandford-Blenheim on the 4th day of April 1997 in the Court House in the City of Woodstock. The Township appealed a Decision of the Ontario Drainage Tribunal dated the 19th day of September, 1995 which Decision was made pursuant to Section 5 (2) (a) of the Drainage Act, R.S.O. l990, c. D17.
The Appellant Corporation was represented by Paul Courey of the law firm of Paroian, Raphael, Courey, Cohen and Houston in Tilbury and the Respondent was represented by Mary M. Recoskie of the law firm of Gowling, Strathy & Henderson in Kitchener.
PRELIMINARY MOTION:
At the outset of the Hearing a Motion was made by the solicitor for the Respondent to have the Appeal dismissed on the legal grounds that the Appellant had unduly delayed both the filing and service of the Appeal. She pointed out that although the Decision was dated the l9th day of September, l995, it had not been sent to the Respondent by the Township until December 6th, l995. She further noted that the Notice of Appeal had not been filed in the Court House until the 31st day of July 1996 and service on the Respondent had not been effected until the 17th day of October 1996. She argued that although in her opinion there was no provision in the Drainage Act which specifically dealt with the time allowed for filing that, in these circumstances, the delay was too extensive, resulting in prejudice to her client. She further argued that as a result of the delayed appeal the cost of the re-construction of the drain had inflated in the interval. To support her argument she referred to the reported case of Miller Manufacturing and Developments Co. vs. Robert J. Alden et al being a decision of Blair J.A. [In Chambers] Reported in Carswells Practice Cases 13 C.P.C. at page 63. That case, she stated, set forth the basic issues to be considered by a Court in exercising discretion for the purpose of allowing extra time for the filing of an appeal. These considerations included:
(a) “a bona fide intention to appeal,
(b) the length of delay,
(c) prejudice to the other party, and
(d) whether it can be compensated by costs; and
(e) the merits of the appeal.”
She concluded her argument by requesting that if the Court exercised its discretion in favour of the Appellant, that consideration be given to compensating the Respondent with costs.
Mr. Courey responded on behalf of the Appellant to the motion made by Ms. Recoskie by stating that there had been no undue delay whatsoever in the filing of the Appeal. He pointed out that although the Decision of the Ontario Drainage Tribunal had been dated the 19th day of September, 1995, that in fact the Decision had not been received by the Township until the 20th day of November 1995 and the Reasons for Decision was not received by the Township until the 5th day of December 1995. He argued that the Township acted properly by first seeking advice from the Ministry of Agriculture, Food and Rural Affairs. It received a reply letter from Sid VanderVeen of the Ministry which advised of the legal options available to the Township dated the 12th day of December 1995. The Township then appointed the law firm of Paroian, Raphael, Courey, Cohen & Houston to act on its behalf by a letter dated February 22nd, 1995. In Mr.Courey’s opinion, the formal filing of the Appeal on the 31st day of July 1996 and the service of the said Appeal in October 1996 on the Respondent did not constitute undue delay. Mr. Courey argued that the Respondent ought not to have been financially prejudiced by the alleged inflationary costs of re-building the dam inasmuch as he did not receive notice of the appeal until October and work on the dam could have been commenced in the summer of 1996. He further argued that Mr. Van Der Krift would not have been prejudiced by the payment made by the Township for the Johnson Drainage Report because said sum would have had to been paid in any event, even if the dam had been incorporated into the Drain.
At the conclusion of the arguments relating to the Preliminary Motion made by Counsel, the Drainage Referee advised that he would reserve his decision to a later date and in the meantime would proceed to hear the evidence and arguments relating to the Appeal of the Township.
COUNSEL FOR THE APPELLANT:
Mr. Courey commenced, on behalf of the Appellant, by indicating that there were four issues to be decided:
(a) “Does the Ontario Drainage Tribunal have the jurisdiction to award damages?”
(b) “Does the Ontario Drainage Tribunal have jurisdiction to punish ex facie contempt?”
(c) “Is there misfeasance of office?”
(d) “Is it necessary to determine the possibility of damage before removing an obstruction under s.80?”
Mr. Courey referred to the Reasons for Decision of the Ontario Drainage Tribunal dated the 19th day of September 1995 which Reasons for Decision were filed as part of an Exhibit Book containing many other Exhibits filed jointly on consent by Counsel. The Reasons for Decision of the Ontario Drainage Tribunal were over the signature of the Chairman of the Ontario Drainage Tribunal at the time, namely Bernard J. Goodall. In the Reasons for Decision, Mr. Goodall clearly sets forth the evidence received and the matters determined by the Tribunal as follows:
... “This appeal launched by the Appellant, J.van der Krift pursuant to s. 5 (2) (a) - Decision of the Council not to proceed with the drainage works, of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on March 7 and August 23, 1995.
On October 7, 1994, the Appellant J. van der Krift filed with the Township of Blandford-Blenheim a Petition, dated October 5, 1994, for drainage works by an owner, in the prescribed form, to incorporate, as part of the Hall Drain, a “concrete dam” that was built in 1992 in the Hall Drain - Lot 15, Con. 11, in the Township of Blandford-Blenheim, filed as Exhibit #3.
On October 19, 1994, Council considered the Petition. At that meeting, Council resolved that it not proceed with the drainage works in accordance with s. 5 of the Act. A Notice of the Decision of Council on the Petition - not to proceed with the drainage works, was sent to the Appellant on October 26, 1994.
On November 7, 1994, the Appellant filed a Notice of Appeal to the Ontario Drainage Tribunal from the Decision of Council not to proceed with the Petitioned drainage works.
The hearing of this Appeal was commenced on March 7, l995. At that hearing, the Township filed a memorandum directed to the Ontario Drainage Tribunal, dated March 3 l995, that the concrete dam which the Petitioner had petitioned to be incorporated as part of the Hall Drain, has been removed on the order of Council as an obstruction in the Drain pursuant to s.80 of the Act. The evidence disclosed, that the dam was removed on or about December 5 1994 pursuant to a direction of Council dated November 17, 1994, directed to David Entz, Community Farm of the Brethren, R.R. # 4, Bright, Ontario. The Notice contained s. 80 (text in full) together with the following direction:
““You are hereby formally requested to remove the concrete dam from the Hall Drain and to repair any damage to the drain bank associated with the removal of the concrete dam by no later than December 5, 1994.
Signed: Jim Watson, C.E.T., Drainage Superintendent.””
filed as Exhibit # 9.
In order to set this matter in perspective, it is necessary not only to recite the history of the construction of the dam and the discovery of it by the Township, but the ownership of the lands on which it was constructed.
The Appellant is the owner of an irregular parcel of land which had been severed out of the N l/2 Lot 15, Con. 11, 20 to 30 years ago by the owner of all of the N l/2 Lot 15, Con. 11. The N l/2 Lot 15 Con. 11 fronts on 11-12 Concession Road. The parcel is in the interior of the lot with a lane of in excess of 500 ft. leading to it. It has an area of 7.25 ha (17.905 ac.). The balance of the N l/2 Lot l5, Con. 11, was purchased by the Community of the Brethren. The Appellant purchased the parcel, which had been retained by the owner, in 1993.
The Hall Drain was constructed in 1975. The upstream reach of 3,694 m. (12,119 ft.) is a covered Drain originating at a catchbasin at the 13-14 Concession Road and coursing southerly to outlet into 366 m. (1,200 ft.) of open drain, located partly over lands of the Community of the Brethren and partly over the lands of the Appellant, in the N l/2 of Lot 15 Con. 11, which outlets into a natural watercourse outletting into the Nith River approximately 150 m (500 ft.) downstream.
Since the subject of the Petition (the concrete dam) had been destroyed pursuant to the direction of Council and since there were no drawings showing the dimensions of the dam nor its location nor any cogent evidence available on these questions, the Tribunal decided to adjourn the hearing to decide how to proceed.
The concrete dam had been directed to be removed by Council under s.80 (l) of the Act as an obstruction in the Hall Drain. The Tribunal was of the opinion that in order to determine how to proceed, it was necessary to obtain more information as to the location and the physical size of the dam. To this end we contacted the Community of the Brethren who supplied us with photographs of the dam which clearly depict the type of structure it was. However, from the photograph it was impossible to determine its exact location and its effect on the Hall Drain upstream of the dam. We felt it important that this information be available before deciding how to proceed further. We employed David G. Johnson, P.Eng. a Drainage Engineer of extensive experience, to attend at the site and make the requisite investigation and obtain sufficient data to locate the former dam and determine the ponding area resulting from the damming of the water. Mr. Johnson produced a Report dated July 3, l995, filed as Exhibit # 21. The evidence on the ground indicates that the dam was located as Sta. 6 + 80. The elevation on the top of the dam was 53.0 ft. The approximate water level behind the dam would reach an elevation of 5l.0 ft. Mr. Johnson also noted that the covered reach of the Hall Drain did not extend as far downstream of the 11-12 Concession Road as shown on the plan in the 1975 Report. The Report provides for continuing the 21” tile to Sta. 12 + 00. Mr. Johnson found that the covered drain outlets into the open drain at Sta. 15 + 50. The elevation of the invert of the tile at Sta. 15 + 50 is 52.94 ft. That is, the tile invert at Sta. 15 + 50 is 1.94 ft. higher than the water level in the pond behind the dam. The very top of the dam, which Mr. Johnson found to be at an elevation of 53 ft., is essentially at the same elevation as the invert of the tile at Sta. 15 + 50. Therefore, under no circumstances would the ponded waters behind the dam back up into the tile.”....
The Chairman went on to set forth the findings of the Tribunal as follows:
“In our opinion the Township erred in ordering the dam to be removed under s. 80 of the Act “as an obstruction in the Hall Drain” even though they had no proof of this nor did they seek any advice in this regard. Section 80 of the Act is operative only if the free flow of water is impeded by the alleged obstruction. There was apparently no indication or evidence that the free flow of water in the Hall Drain was impeded at the time of the Order (the pond had been de-watered when the order was made), there had been no complaints by any of the upstream owners of lands that in fact the dam was obstructing the drain. It appears as though the actions of Council were prompted solely by the position taken by MNR. D.J. Ward, the Area Supervisor, Aylmer District, put the position of MNR in his letter to council of October 4, l994 (filed as Exhibit # 4) as follows: “Dam was constructed without authorization from the Township or this office... damming of watercourses to create an in-line pond may also impair downstream water quality by storing water and increasing temperatures. We also question the structural integrity of the dam and recommend the removal of the same”. The evidence before us is that MNR continued to press for the removal of the dam. Council acceded and directed the removal of the dam.”...
... “Therefore an Order will go that the Township of Blandford-Blenheim pay to the Appellant out of the Township’s general funds the sum of $8,l32.00 ($7,600.00) construction costs plus $532.00 G.S.T.) by way of damages for destroying the concrete dam which had been constructed and had been ordered to be removed by the Township of Blandford-Blenheim.
Since a dam of the height and size of the dam that had been removed as determined by the Report of D. Johnson, P.Eng. was not and will not be an obstruction in the Hall Drain (having in mind the purpose for which the Hall Drain was constructed) and since it will permit the better use of the adjoining lands (irrigation and watering stock) we order that the Appellant is permitted to construct a dam to the elevation, but not higher, shown in the Johnson Report. If the Appellant does this the dam shall be incorporated and become part of the Hall Drain.
If the Appellant builds the dam the dam shall be maintained and repaired by the Appellant at his expense or his successor in title to that part of Lot 15 Con. 11 owned by the Appellant, Jelle van der Krift and not by the Township or the drainage area.”...
“... we are of the view that the cost of the Report of D.J. Johnson, P. Eng. should be paid for by the Appellant ($2,l40.00) since he would have had to make that expenditure whether the dam had been removed or was in place at the time of the hearing. At the hearing, Entz Bros. Construction Inc. submitted an account for the removal of the dam in the sum of $l,86l.80 filed as Exhibit # 25. They asked that we make an Order directing the Township to pay this account.
The Community of the Brethren constructed the dam without authority from the Township contrary to the Act. The Community of the Brethren employed Entz Bros. Construction Inc. to remove the dam when directed by council to do so. In removing the dam the Community of the Brethren were rectifying the breach which they had committed under the Act. Therefore in our view the Community of the Brethren should bear the costs of removing the dam.”...
... “Council should have appointed an Engineer under the Act after the Petition was filed. An informed decision on the request could only be made on the basis of an Engineer’s Report. There is no one else that could supply the requisite information to Council than an Engineer appointed under the Act. Further, there was the discrepancy in the 1975 Report in that the lands of the Appellants did not appear to be included in the watershed that could only be resolved by an Engineer appointed under the Act. It seems to us that if an Engineer had been appointed there would have been no hearing.
The initial hearing had to be adjourned and the adjourned hearing held because of the contemptuous act of the Township in destroying the dam, the very subject of the Petition.
An Order will therefore go, that any costs incurred by the Township of Blandford-Blenheim as costs of the hearing shall be paid by the Township out of its general funds.”...
JURISDICTION OF TRIBUNAL WITH RESPECT TO DAMAGES:
Mr. Courey proceeded to argue that the general power section, namely Section 51 (1) of the Drainage Act which defines the Powers of the Tribunal did not permit the Tribunal to assess damages. Section 51 (1) of the Drainage Act reads as follows:
“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 direction such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act”
He went on to state that in the absence of a clear definition in the Act with respect to the “purposes of the Act”, it was not open to the Drainage Tribunal to determine the “purposes of the Act”. He advised that it was up to the Courts and/or the Referee to define the purposes of the Act. In support of his argument he referred to The House of Lords decision reported C.A. l966 p 997. In that case the Minister had refused to exercise the discretion given him under the Milk Marketing Act to overrule a Decision of the Board.
The Court of Appeal held “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and the objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Courts”. Mr. Courey also pointed out that the above mentioned case was quoted with approval in the dissenting opinion of L’Heureux-DubJ, J.J. in the case of Paccar Canada Limited v. Canadian Association of Industrial Mechanical & Allied Workers reported in 1989 CanLII 49 (SCC), 62 D.L.R. (4th) 437 (Supreme Court of Canada).
Mr. Courey went on to argue that fact the damages purported to be granted by the Tribunal went beyond compensatory damages and could only be classified as punitive damages. He advised that the Respondent had not constructed the dam originally and that even the ownership of it was in dispute, so that it was improper to compensate him for losses which he never sustained. Mr. Courey further contended that it was improper to grant damages pursuant to the Drainage Act for the alleged loss of a dam that was originally constructed not for drainage purposes but for irrigation purposes.
DAMAGES FOR CONTEMPT:
Mr. Courey noted that the Chairman of the Ontario Drainage Tribunal described the act of the Township ordering the dam removed as “a contemptuous act of the Township in destroying the dam”. ... “...An Order will therefore go, that any costs incurred by the Township of Blandford-Blenheim, as costs of the hearing, shall be paid by the Township out of its general funds.”...
It therefore appeared, in Mr. Courey’s view, that the Tribunal was punishing the Township for an act of contempt. Mr. Courey quoted from paragraph 421 in the Canadian Encyclopedic Digest (3d), Vol 1, Title 1 under the heading ADMINISTRATIVE LAW “At common law, the power to cite and punish for civil contempt ex facie is restricted to the superior courts. However, inferior courts of record may punish for contempt in facie.
Paragraph 420 which precedes paragraph 421 cited above states “It is sometimes necessary to distinguish contempt ex facie and contempt in facie or, roughly translated, between contempt outside of the hearing and contempt in the presence of the tribunal.” Mr. Courey concluded by arguing that the Drainage Tribunal did not have jurisdiction to punish the Township by assessing costs to be paid out of general funds on the basis of contempt jurisdiction because the alleged improper act of the Township was conducted outside of the Tribunal Hearing.
LIABILITY FOR OBSTRUCTION SEC.80:
Mr. Courey further argued that the Township’s conduct in ordering the removal of the dam was fully justified by Section 80 of the Drainage Act. He stated that the dam was clearly an unauthorized obstruction in the drain. Section 80 Subsection l of the Drainage Act states as follows:
“When a drainage works becomes obstructed by a dam, low bridge, fence, washing out of a private drain, or other obstruction, for which the owner or occupant of the land adjoining the drainage works is responsible, so that the free flow of the water is impeded thereby, the persons owing or occupying the land shall, upon reasonable notice in writing given by the council of the local municipality whose duty it is to maintain and repair the drainage works or by the drainage superintendent appointed by the council, remove such obstruction and, if it is not so removed within the time specified in the notice, the council or the drainage superintendent shall forthwith cause it to be removed, and the cost thereof is payable to the municipality by the owner or occupant of the land”.
Mr. Courey pointed out that the Council has an obligation “to forthwith cause it to be removed” and any undue delay could lead to a damaged claim against the Municipality. Mr. Courey further argued that the Tribunal was wrong in alleging that the Township ought to have appointed an engineer to determine if the dam was an obstruction and/or to determine who the owner was. He stated that it was up to the owner to prove that he was in fact an owner and accordingly entitled to petition for the incorporation of the dam. Mr. Courey maintained that the Township had properly exercised its discretion in response to the requests of another Government Agency, namely the Ministry of Natural Resources, to remove the dam. This was particularly true he stated where, as in these circumstances, the purpose of this dam was not for drainage but rather for irrigation. Mr. Courey requested that the Referee clarify the responsibilities of the Township with respect to Section 80 of the Drainage Act noting the Tribunal’s Decision had the result of placing the Township in a position of genuine jeopardy.
The Solicitor for the Appellant also took issue with the Ontario Drainage Tribunal’s use of evidence acquired other than at the Hearing, which evidence included communication with the Community Farm of The Brethren between the Hearings and the receiving of photos, etc. He pointed out that this breach of procedure afforded no opportunity of cross-examination with respect to such evidence.
COSTS:
He concluded by advising the Referee that he had instructions from the Township not to make any requests for costs in view of the special circumstances of the Appeal.
COUNSEL FOR THE RESPONDENT:
Ms. Mary Recoskie, on behalf of the Respondent, advised that her client had purchased the property in l993 and that the dam had been built the previous year by the Community Farm of The Brethren who farmed all the adjoining land. She stated that after receiving the Notice from the Township to remove the dam her client had signed a petition to have the dam incorporated into the drain. Council’s response was recorded in a Resolution passed on the l9th day of October, 1994 which read “Whereas it is unclear with the available Township records and without the benefit of a legal survey on the validity of the Petitioner as owner”. Council thus rejected the Petition. On November 7th the Respondent filed an Appeal with the Drainage Tribunal relating to the Township decision. Ms. Recoskie particularly drew to the attention of the Referee a letter dated October 26 l994 wherein the Clerk queried Council Members as to whether they wished to proceed with the Order requiring the removal of the dam in light of the appeal made by Mr. van der Krift to the Ontario Drainage Tribunal. Attached to that letter was a sketch of that property which, although it did not locate the drain, was sufficient in Ms. Recoskie’s opinion to raise a presumption “a clear suspicion” that the dam was located on the land of the Respondent”. The Solicitor for the Respondent then pointed out that notwithstanding the fact that Council was clearly aware of the Appeal to the Ontario Drainage Tribunal they proceeded to order that the dam be removed in a letter addressed to the Community Farm of The Brethren on the 17th day of November 1994. She argued that Council ought not to have so proceeded and quoted Section 25 (l) of the Ontario Statutory Powers of Procedure Act which reads as follows:
“Unless it is expressly provided to the contrary in the Act under which the proceeding arises, an appeal from a decision of a tribunal to a court or other appellate tribunal operates as a stay in the matter except where the tribunal or the court or other body to which the appeal is taken otherwise orders.”
Ms. Recoskie then referred to Section 118 (2) of the Drainage Act as providing the Tribunal with authority to make an assessment against the General Revenue of the Township for improper acts on the part of municipal officials. She advised, however, that if, in fact, the Tribunal had exceeded its jurisdiction in awarding damages, etc. then she requested the Referee substitute his decision for that of the Tribunal and make an Order in the same terms. She proceeded to argue that her client was receiving compensatory damages inasmuch as he had purchased his property with the dam in place and had accordingly acquired ownership of the same - therefore suffering a real loss when the same was removed. Ms. Recoskie urged that the Referee support the Tribunal’s decision that the Township be charged with the cost of the Drainage Report because the Council ought to have appointed a Drainage Engineer to ascertain whether the dam constituted an obstruction before they ordered that the same be removed. She concluded by stating that in her opinion Council had been too differential to the Ministry of Natural Resources and erred in directing that the dam be demolished while the appeal was pending. Accordingly in her opinion that decision was not made in good faith and accordingly she requested that the current appeal by the Township be dismissed with costs against the Township.
DECISION ON PRELIMINARY MOTION:
With respect to the Motion for Dismissal of the Appeal for Delay in the filing and service upon which I had reserved my decision, I have determined that the same ought be dismissed. I find no significant prejudice arising from the delay incurred by the Respondent and indeed I do not regard a delay of approximately six months in the filing of the appeal and possibility 9 months in the service of the same on the Respondent, in the circumstances, as constituting undue delay. I note that Section 111 Subsection 2 of the Drainage Act provides for notice of a claim and service thereof to be made within two years from the time the claim arose. That is a reasonable guideline and provision is made in Section 113 for an extension of the time for appeal beyond the two year period in circumstances that justify such an extension. I am inclined to give a liberal interpretation to Section 113 and accordingly in the circumstances of this case, I find that there has been no undue delay and certainly no measure of prejudice disclosed. The motion is therefore dismissed.
DECISION ON APPEAL:
Having reviewed the evidence filed, having read the Reasons for the Decision of the Drainage Tribunal and having heard the submissions made by Counsel, the Referee is of the opinion that the Appeal should be allowed at least in part in accordance with the terms hereinafter specified. The Referee has determined that the Drainage Tribunal clearly exceeded its jurisdiction in awarding damages to Mr. van der Krift in the amount of $8, l32.00. That award cannot be otherwise described than as an award of damages and in fact is so described by the Chairman of the Drainage Tribunal in his Reasons on Page 6 when he says such an amount shall be ordered “by way of damages for destroying the concrete dam which had been constructed and had been ordered removed”. The Drainage Act is very specific in granting jurisdiction to the Referee only in Section 106 (c) with respect to the awarding of damages. Section 50 (l) of the Act cannot be interpreted so as to extend the powers of the Drainage Tribunal to include that authority power specifically granted to the Drainage Referee. Further a historical consideration of the Act clearly indicates that the “original jurisdiction” granted to the Referee pursuant to Section 106 was exercised in previous Acts by a Federally appointed Judge who for many years acted as Referee. Drafters of the more recent Drainage Act elected to reserve certain powers to the Referee alone (including claims for damages) no doubt in the knowledge that certain procedures followed in the Court of the Drainage Referee result in a stricter application of the Rules of Evidence, etc. which rules are exceedingly important in establishing quantum of damages. As a matter of record the application of such Rules is much more relaxed in proceedings before the Ontario Drainage Tribunal where the Chairman is not required to be a practising Barrister of specific experience.
Further Section l8 of the Act in both Subsections specifically makes reference to damages, and in each subsection refers to determinations by the Referee or a Court. Accordingly, in my opinion I have determined that the provisions in the Drainage Act cannot be subject to misinterpretation in providing jurisdiction exclusively to the Drainage Referee with respect to the assessment of damages. Having made this fundamental determination in favour of the Appellant it is not necessary to consider some of the other issues raised by his Counsel in the Appeal with respect to damages.
I do agree with the submissions made on behalf of the Respondent in support of the opinion expressed by the Ontario Drainage Tribunal namely that it would have been prudent for the Township to await the outcome of the Appeal made to the Ontario Drainage Tribunal before proceeding with the demolition of the offending dam. Ms. Recoskie is correct in pointing to the provision of Statutory Powers Procedure Act which apply in a case such as was before the Ontario Drainage Tribunal. Any Township action ought to have been stayed until the Appeal was heard. In case of an emergency, an application could have been made to the Referee or to the Tribunal for particular direction. Accordingly, I chose to confirm the Decision of the Ontario Drainage Tribunal with respect to that portion of their Order which required the Township of Blandford-Blenheim to pay the Ontario Ministry of Agriculture, Food and Rural Affairs for the cost of the Drainage Report out of General Funds. It is for the same reason that I confirm that part of the Order of the Ontario Drainage Tribunal which required that any costs incurred by the Township of Blandford-Blenheim with respect to the Hearing be paid by the Township out of its General Funds.
The Decision of the Tribunal however will be amended to provide that the Township of Blandford-Blenheim will not be required to pay to the Appellant out of Township General Funds the sum of $5,992.00. Further, the Appeal is amended to provide that if the Appellant re-constructs the dam as provided in the Order, two further conditions must apply:
(a) the approval of the Ministry of Natural Resources must be received in writing; and
(b) construction must be done under the direction of a Drainage Engineer appointed by the Township;
The Referee is of the opinion that the Township of Blandford-Blenheim was correct in giving significant weight to the advice of the Ministry of Natural Resources with respect to its responsibilities in the maintenance of this Drain as with other Drains in the Township. Although the Ministry of Natural Resources must not have veto powers over drainage matters, it is of utmost importance that every effort be made to accommodate and incorporate their views in matters of drainage. It is precisely because this particular dam did not serve any independent drainage purpose that the views of the Ministry of Natural Resources deserved greater weight. Further, other assessed owners on this project have the right to have their drainage interests protected and it is for that reason that the dam ought not to be re-constructed without being done under the supervision of a drainage engineer.
At the conclusion of the Hearing, Ms. Recoskie specifically requested an opportunity to make submissions with respect to costs if the appeal was granted in whole or in part. Accordingly, I am prepared to receive written submissions with respect to costs. I am aware that Counsel for the Township of Blandford-Blenheim, at the conclusion of his submissions, indicated that he had instructions not to request costs. It is for that reason that I am presently not disposed to order costs in favour of either party. However, I will not make a final decision with respect to the issue of costs until I have received written submissions from the parties if they so choose. Such submissions must be received by me within 30 days of the receipt of this Decision by each respective Counsel.
DATED: May 16, l997
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee
Court File No. 419
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
THE CORPORATION OF THE TOWNSHIP OF BLANDFORD-BLENHEIM
-and-
JELLE VAN DER KRIFT
DECISION WITH RESPECT TO ISSUE OF COSTS
In a Decision with respect to the above matter dated the l6th day of May l997, provision was made for the filing of written submissions with respect to the issue of costs.
Accordingly Counsel for the Appellant and the Respondent filed written submissions. Counsel for the Appellant, who had originally not requested costs at the Hearing, in written submissions requested that consideration be given to the granting of costs to the Appellant. Counsel for the Respondent who had requested costs at the Hearing, including a consideration of costs with respect to her Preliminary Motion, pursued her request for costs.
Both Counsel conceded that they had achieved a mixed result in the Decision. The Appellant had succeeded in having the Order for damages reduced substantially by the sum of $5,992.00. The Respondent was successful in having the appealed Order of the Ontario Drainage Tribunal confirmed in part, namely the payment for the cost of the Drainage Report and the legal costs of the Tribunal Hearings by the Township out of General Funds. As a result it must be said that both parties achieved some success, but there is no reason to prefer one party with an award of costs.
IT IS THEREFORE ORDERED that both applications for costs be dismissed and the parties will be responsible for their own costs.
DATED at Pembroke, Ontario this 27th day of August A.D. l997.
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee