ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Landmark v. Hay (Town)
1998 ONDR 1
1998-07-31
1998-01
STATUTE:
HEARING:
1998-16-04
BETWEEN:
LANDMARK LTD.
Appellant
‑and‑
THE MUNICIPALITY OF THE TOWNSHIP OF HAY
Respondent
DECISION
This matter proceeded before the Drainage Referee in the Court House in Goderich, Ontario on the 16th and 17th days of April, 1998. It followed a previous hearing conducted on the 27th day of June, 1997, which dealt with procedural motions presented by both Counsel. A decision dealing with the procedural motions dated the 31st day of July, 1997, is attached to this decision as Schedule 'A'. That decision of July 31st 1997, gave a brief outline of the history of the Norman Heights Municipal Drain and granted an Order dealing with examinations for discovery and production of documents. It also provided for a full hearing with respect to the issue of the validity of the By‑Law.
A brief statement of the facts can be summarized as follows:
The evidence revealed that on or about the 14th day of August, 1995 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. The Engineering firm of LaFontaine, Cowie, Burrato & Associates Limited was appointed and after a preliminary meeting was held with some of the owners in September of 1995, an official on‑site meeting was convened on October 91995. Landmark Limited was inadvertently not provided with a Notice. At a second meeting to discuss the preliminary proposal held on the 10th day of February 1996, Landmark Limited was not present, once again having not been notified. On March 12, 1996 the Drainage Engineer filed with the Township a Report dated February 15 1996 respecting the Norman Heights Municipal Drain. It should be noted that Landmark Limited had a very substantial interest in the drainage project being the largest landowner in the assessed area.
The Township became aware that Landmark Limited had not been notified and on March 25 1996 sent a letter requesting its presence at a meeting to discuss the proposal on the 11th day of April 1996. 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 were held, including the meeting to consider the Report (May 11 1996) and the Court of Revision held on the 8th day of June 1996. The evidence of Mr. Elston, the Engineer, indicated that he had been willing to repeat the process of the on‑site meeting, but was advised by Mr. Stark at the April 11 meeting that it was not necessary to do so and that the matter could proceed. On the witness stand, Mr. Stark allowed that his memory of the 11th of April meeting was not perfect, however, he recalled that Mr. Elston had advised him that he was prepared to re‑start the matter. He stated that Mr. Elston further advised “that it would be no advantage and all opportunities were still available.”
The evidence indicated that Mr. Stark had many objections to the Drainage Report believing there was a less expensive and simpler way to provide the same level of drainage. He was of the opinion that the Engineer had not taken advantage of the many technical reports that were available through Landmark Ltd. and which were very relevant to drainage considerations. He stated that he was not given an opportunity to have the proper inputs and was of the opinion that if he had had an opportunity to meet with the Petitioners earlier in the proceedings that the whole matter would have taken a different course. He further noted that there were many obstacles along the proposed route of the drain that had not been taken into account in the Drainage Report and which would be costly to remove ‑ such as sheds, hedges, etc. Mr. Stark expressed concern because he had not had an opportunity to fully express his views at the meeting to consider the Report. He also objected because Mr. Elston, the Drainage Engineer, was not present at that meeting being replaced by William Bartlett, an Engineer from the same firm.
Landmark Ltd. appealed to the Ontario Drainage Tribunal and a Decision was rendered dated the 2nd day of October, 1996. The Decision dismissed the appeal of Landmark Ltd. with costs assessed against Landmark Ltd. The Tribunal considered two issues in the appeal, namely:
a) The modification of the Drainage Report; and
b) The fairness of the assessment schedule.
The Decision recommended changes with respect to both these matters.
A copy of the area requiring drainage is attached hereto as Schedule 'B', which illustrates in detail the Subdivision developed by the Appellant along the shores of Lake Huron. The subdivision plan, namely Plan 529, accounts for most of the “area requiring drainage”, but the watershed includes as well, agricultural lands being part of Lot 28 and Lot 27, Lake Road West Concession. The agricultural lands as well as Block B are owned by Landmark Ltd.
SUBMISSIONS
Counsel for the Appellant in his representations argued that the Drainage Petition was deficient. He further stated that the Drainage Referee had no remedial authority to correct a flawed Petition. He proceeded to outline in a series of submissions the various errors which he alleged were contained in the Petition:
- Misdescriptions of Properties
Mr. Seed argued that the Petition which described the affected area as “Norman Heights Subdn” failed to provide a metes and bounds description as required in the Petition form. He further stated that this description excluded properties which are adjacent to or part of the area such as Block B and included property which was not part of the subdivision, namely the adjacent agricultural land. He went on to point out that there were also misdescriptions of the properties identified as owned by the various owners. He identified at least six such errors. In addition the Petition referred to at least five nonexistent lots in the subdivision.
Counsel for the Respondent replied by stating that, in her opinion, the metes and bounds description was adequate, particularly in circumstances where all but one of the signatories were found to be in the area requiring drainage. She argued that there was absolutely no prejudice resulting therefrom and it was the Engineer's duty, not the Petitioner's, to define the area requiring drainage. She referred to The Interpretation Act, R. S. O. 1990, Chap. 1. 11, sec. 28, sub. D.40.
“In every act, unless the contrary appears, and in subsection D, where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead do not vitiate it.”
Ms. Evans preceded to refer to the misdescriptions of the various owners' properties, stating that in her opinion the errors were immaterial. She noted that the Engineers, including Mr. Kuntze retained by the Appellant, had testified that such minor errors were common and not critical. She noted that Mr. Elston testified that some of the confusion resulted from the insertion of municipal addresses rather than lot numbers.
The Referee considered the issue of misdescriptions and found that they were not substantial so as to affect the validity of the Petition. A petition is a “field document” normally prepared by laymen without technical training. Its purpose is merely to identify in layman's terms the area which is to be the subject of the proposed drainage works. The identification of “the area requiring drainage” is the function of the Drainage Engineer, and requires professional expertise. The Engineer has a duty to review the names on the Petition and satisfy himself that they are in fact the owners of the land. This function is often done in consultation with the municipal clerk as they together review the assessment roll. It should be noted that Section 4 subsection 4 of The Drainage Act provides for the Clerk to be the final arbitrator of ownership in circumstances where the assessment role does not identify the true owner.
Accordingly I conclude:
a) That the general description in the Petition of the proposed drainage area does not require precision and minor errors contained in the general description do not invalidate a petition.
b) Errors in the identification of the various owners' properties, although they should be reviewed and corrected, likewise do not invalidate a petition providing that the signatories are in fact owners within the area requiring drainage.
- Questionable Signatures
The Appellant proceeded to identify what he alleged was a further flaw in the Petition, namely signatures “per (another party)”. The first of such signatures can be disregarded because the property was not in the area requiring drainage. The second such signature, namely that of Don Thompson “per P.M. E. “, however, is relevant. Mr. Seed pointed out the engineer did not give any evidence to indicate that Don Thompson had authorized this signature.
Mr. Seed proceeded to indicate that there were further flaws including the two Broughton signatures. One such signature is almost illegible, but by applying a highly generous interpretation it might possibly be conceived as that of H. K. Broughton, who in fact owned Lot 40, Plan 517. However the signature of W. F. Broughton, Mr. Seed noted, was readily identifiable and the assessment roll indicated that he was only a joint owner of Lot 16, Plan 529, with David and John Broughton. Mr. Seed submitted that the evidence did not reveal any authorization for Mr. W. F. Broughton to sign on behalf of his fellow owners.
Mr. Seed then proceeded to the name of Jack Crosthwaite and pointed out that the true owner of the property, namely Lot 41, Plan 517, was Barbara Crosthwaite. He also pointed to the signature of K. J. McIntyre, but noted that the owner of the property was in fact Iris McIntyre. Mr. Seed argued that there was no evidence to indicate that these signatures were authorized.
In reply Ms. Evans suggested that the signatures for the above‑mentioned people were valid on the principle of agency. She argued in each case there was a legal relationship between the parties and in the absence of other evidence that should be sufficient to invoke an agency relationship. She maintained that the almost illegible Broughton signature was indeed that of H.K. Broughton, and that in any event the onus of proof was on the Appellant to show the signatures were not valid.
- Joint Owners
Mr. Seed also questioned the signatures with respect to eight properties that were jointly owned, but were represented by only the name of one joint owner on the Petition. It would appear that seven of these properties were owned by joint spouses. The eighth was owned by family members by the family name of “Down”. Referring to the case of Belzner et al vs. Dunnville, Mr. Seed argued that all joint owners must sign a petition. He quoted the late Referee Johnston in a paragraph taken from that Decision as follows:
“The first matter is whether all the signatures of joint owners, co‑owners and partners are necessary on a petition. The answer is they are. If land is held by husband and wife, whether jointly or as co‑owners, both have to sign the petition. The same applies to unrelated joint owners or co‑owners, regardless of how many there are. If there are three joint or co‑owners they all have to sign. All partners of a partnership or land that is held as partnership property have to sign. This is for purposes of the Drainage Act and is regardless of the common law or other statutes that may state what the legal effect of one joint or co‑tenant or partner is signing is.”
“The reason for the aforementioned is that the petitioners by signing the petition make themselves liable to be assessed for the cost of the drain. If it does not proceed and a clear intention from each person having an interest in the land that may be assessed or liable for the cost must be demonstrated by each owner.”
The Counsel for the Respondent replied to the submissions of the Appellant by stating that the Drainage Referee was not bound to follow the decision in the Belzner Case because the doctrine of “stare decisis” only applied to decisions of a Court which is higher in the judicial hierarchy. Accordingly she stated that the Decision of Referee Johnston is not binding on the current Referee. Secondly, she reasoned that the issue was “obiter dicta”, and the principle of “stare decisis” is only applicable to issues “necessarily decided ...and is not applicable to dicta”.
Ms. Evans further pointed out that sections 4 (5) of The Drainage Act provides:
“where two or more persons are jointly assessed for a property, in determining the sufficiency, they shall be deemed to be one owner. “
It follows, logically she argued, that because they count as one owner for the sufficiency of the petition, the name of one joint owner should count as the signature for both joint owners.
Having reviewed the evidence and read the submissions I must advise that I am compelled to follow and confirm the decision of the late Referee Johnston in the Belzner Case. The petition is a fundamental document in any Municipal Drainage proceeding. It is an artful creation developed historically to balance the interests of the majority with the rights of minority land owners. The development of the concept of the “area requiring drainage” is a unique refinement developed through the years which permits the downstream owner to obtain relief. A solitary downstream owner might be the only party providing the “area requiring drainage” while being surrounded by a large watershed of owners who, in their upstream comfort, have no interest in voting to financially support his compounding moisture problems. Only through the institution of The Drainage Act and the instrument of a Municipal Drain can he seek redress by employing a skilled professional to determine objectively, free from local political pressure, whether his property constitutes the “area requiring drainage” and that accordingly his vote alone is sufficient to initiate a Municipal Drain. However, in such circumstances where a minority owner or minority owners can seek such redress, it is imperative that that enabling instrument, namely the petition, be scrupulously employed. Accordingly great care must be taken to comply precisely with the provisions of the Act to ensure that justice is done and is perceived to be done.
Section 4 (2) of The Drainage Act provides
“a petition under Section 1 shall be in the form prescribed by the regulations and where it is filed by an owner, or owners under clause 1 (a) or (b) shall be signed by such owners or owners . . .”
This provision is quite clear in requiring the signature of each owner.
It must be recognized, however, that it is possible to have a legal signature provided by a party other than the signing party. It must be done through the provision of a document that provides clear legal authorization. The appointed Drainage Engineer who is entrusted to ensure that the petition is valid must be satisfied that such authorization was given in all cases. That authorization ought to be in writing and ought to be kept with the petition.
Having found, following the Belzner Case, that it is necessary to have both spouses sign when they are joint owners, it is even more necessary to have clear proof of authorization if the petition is signed by someone other than the owner. The onus falls upon the Drainage Engineer to provide proof that the signatures are duly authorized, here the evidence was insufficient.
Thus, in the case of McIntyre, Crosthwaite and Thompson, the signatures fall short. If we add to these three names the signatures for “joint owners” which I also find to be inadequate, we have in all twelve faulty signatures which collectively render this Petition insufficient. The Petition, therefore fails and the by‑Law must be quashed.
There were other issues raised by the Appellant, namely the issue of multiple petitions and the issue of the time to add or withdraw names to the petition which are not determinative in this decision, but which merit some comment. Clearly, the preferred time to add or withdraw signatures is at the on‑site meeting or at the meetings to consider the report of the engineer under Section 42 of The Drainage Act. That, however, does not preclude the possibility of adding or withdrawing names before the site meeting and after the site meeting, as contemplated by Section 9 (5) (a) of The Drainage Act, at least for 60 days.
With respect to the issue of multiple petitions, it is not the authenticity of the petition that is in issue, but rather the validity of the signatures attached thereto ‑ e.g. it would be possible for the petition to be destroyed and yet the project proceed on the basis of sufficient proof being made available that a valid petition was in existence at the essential time.
Because the outcome of this matter was decided on the basis of an insufficient Petition, it is not necessary for me to determine the issue of natural justice or procedural irregularities. However, I will comment that during the course of the hearing I concluded that the motives of the Township and the Drainage Engineer were at all times honourable and that there was no indication of bad faith. I am satisfied on the evidence that the Drainage Engineer, Mr. Elston, did advise Mr. Stark that he was prepared to halt proceedings and to call a further site meeting if Mr. Stark so required it. I am equally satisfied that Mr. Stark said it was not necessary to revert to a site meeting on the understanding that he would have an opportunity for input in subsequent meetings. I am not satisfied that Mr. Stark had an adequate opportunity for input in subsequent meetings, however, I do not have to make a determination on that point having decided that the Petition was flawed.
I will grant Counsel sixty (60) days to complete written submissions with respect to costs, thirty (30) days to the Appellant, twenty (20) days to the Respondent after receipt of the Appellant's submission and ten (10) days for the Reply.
DATED: July 31, 1998
De1bert A. O’Brien, Q.C.
Ontario Drainage Referee