ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Mclean v. Evanturel (Township)
1998 ONDR 10
1998-10
STATUTE: Drainage Act
HEARING: 1998-12-4
BETWEEN:
W. E. MCLEAN, BRIAN MCLEAN, CAROL MCLEAN
APPELLANTS
‑AND-
TOWNSHIP OF EVANTUREL
RESPONDENT
DECISION
This Decision results from a Hearing conducted in the Court House in Haileybury, Ontario on the 4th day of December, l998. The Hearing was in response to an Order made by the Ontario Drainage Referee on the 6th day of November, l998. That Order was made with the consent of Counsel for both Parties after a teleconference call with the Referee. That Order provided for a trial of the issues on the 4th day of December, l998 in Haileybury. It further required that the Clerk of the Township of Evanturel advise the assessed owners by registered mail of the Hearing, enclosing therein a copy of the Order. It also ordered that both Counsel prepare legal Factums which they duly filed with the Clerk of the Township for viewing by interested parties prior to the Hearing.
Counsel for both the Applicants and the Respondent had, during the above mentioned teleconference call, advised the Referee that they believed that this matter would be greatly expedited with a view to avoiding the cost of a subsequent full trial if several preliminary legal issues were addressed by way of a motion. Those preliminary legal issues were defined in the Motion Application made by the Applicants on behalf of both Parties as follows:
“(a) The Applicant is requesting an Order that Section 15 of the Drainage Act be strictly interpreted as requiring Drain No. 4 of Evanturel Township to operate with sufficient outlet.”
(b) “The Respondent is requesting an Order that the Application be dismissed on the legal basis of res judicata.”
The facts in this case were extensive and involved several Hearings of the Ontario Drainage Referee. The first commenced on the l9th day of December l994 - all relating to the No. 4 Municipal Drain. Rather than repeat the lengthy history, I have included two Schedules. Schedule “A” is a Statement of the Referee pursuant to Section 114 of the Drainage Act which describes the drain and the immediate environs and Schedule “B” is a copy of the Drainage Referee’s Decision and the Reasons dated the 3rd day of June, l996.
It should be noted that following the Decision of May l996 that the affected owners in Ingram Township elected not to sign a Petition so as to take advantage of the Ontario Ministry of Agriculture, Food and Rural Affairs’ special programme for the construction of drains in unorganized territories. Consequently, Option 2 referred to in the Report of K. Smart Engineering was proceeded with. Although two appeals were filed within the time frame allowed for appeals by the Drainage Referee, both appeals were subsequently withdrawn. It should be noted that one appeal was filed by Tomston Farms of R.R. # l Englehart, Ontario and the second was filed by the McLeans, the Respondents herein.
An application dated the 19th day of May l998 was subsequently filed by Donald R. Good, Barrister and Solicitor, on behalf of W. E. McLean, Brian McLean, Carol McLean and the Estate of G. Pollock with the Ontario Drainage Referee. This application was pursuant to Section 79 of the Drainage Act requesting an Order requiring that the Drainage Ditch No. 4 be repaired. The application also requested secondary relief in the form of a Claim for Damages pursuant to Section 106 (l)(c) of the said Act. It was with a view to avoiding the costs of a full trial that Counsel for both parties requested a Hearing to deal with preliminary legal issues only.
SUBMISSIONS OF APPLICANTS:
Counsel for the Applicants made the following submissions:
- He suggested that Section 15 of the Drainage Act applied and a sufficient outlet had not been achieved for the Ditch No. 4 Drain. He quoted Section 15:
“Subject to Section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet”
He advised that Section 32 had no application to the instant case. He gave two reasons, namely:
(a) The lands in question were not lowlands; and
(b) No compensation for damage had been estimated by the Drainage Engineer and paid by the landowners assessed, e.g. the Applicants had never received compensation.
He noted that Section 4 of the Drainage Act defined “sufficient outlet” as meaning “a point at which water can be discharged safely so that it will do no damage to lands or roads” He advised that the key word in Section 15 was “shall”. He referred to the Interpretation Act of Ontario which defined “shall” to be “imperative”.
Mr. Good referred to the case law and in particular the case of Rowland v. McCallum (1910) 22 O.L.R. 418 (C.A.) That case, he advised, interpreted the word “shall” to be imperative and cautioned that any other interpretation would be to make new law.
Mr. Good advised that a rule of statutory interpretation requires that Statutes which expropriate private property must be read implicitly as requiring compensation. He maintained that Drain No. 4 had resulted in a loss of property to the Applicants. He referred to the Supreme Court case of Leiriao v. Val-Belair 1991 CanLII 46 (SCC), [1991] 3 S.C.R. 349 (S.C.C.). He quoted the dissent in that case as follows:
“Because property is a fundamental legal right and because expropriation is such an exorbitant power, Canadian Law has consistently favoured a restrictive interpretation of Statutes enabling expropriation”
Mr. Good maintained that Section 32 only modified the requirements of Section 15 where the outlet lands were “lowlands”. He continued to argue “if damage due to insufficient outlet is demonstrated to be incurring to downstream lands which are not lowlands, the Drainage Referee must order remedial action to prevent the damage from insufficient outlet from continuing.” Accordingly he maintained that the Drainage Referee had no discretion in the interpretation of Section 15.
Mr. Good concluded by requesting that an Order be made that if damage to the McLean land is demonstrated to be occurring that the drain be remedied to prevent further outlet damage. Mr. Good referred to and relied on the following authorities:
Township of Raleigh and Township of Harwich, (1903), Decisions of the Referees Appointed for the Purpose of The Drainage Laws, Vol. II, Pg. 12
McGillivray v. Township of Lochiel, (1916), Decision of Cases Arising Out of The Municipal Drainage Act, No. 84, Pg. 66
Carruthers vs. Township of Moore, (l893), site unrecorded
Healy v. Ross (1916) Decisions of Cases Arising Out of The Municipal Drainage Act, No. 84, pg. 236
Matilda v. Edwardsburgh, (l916) Decisions of Cases Arising out of the Municipal Drainage Act, No. 84, Pg. 94
Wigle vs. The Townships of Gosfield South and Gosfield North, (1902), site unrecorded.
SUBMISSIONS OF RESPONDENT
Mr. Ellies, on behalf of the Respondent, stated the Application in this matter was pursuant to Section 79 under the Drainage Act wherein the Referee is provided with authority on 45 days notice to make an order requiring a municipality to exercise their powers and perform the duties incurred by the Act to maintain and repair a drain. Mr. Ellies argued that inasmuch as there were no new facts before the Referee that any decision made by the Referee could only be based on the facts arising from or having been heard and determined in the previous proceedings. He therefore argued that if any Order was made by the Referee pursuant to Section 79 of the Act that it would be in the nature of a summary judgment and could not be made at this stage of the proceedings without adducing further evidence.
He therefore went on to argue that inasmuch as any determination made in the current proceedings could only be made on the facts and issues that have already been dealt with, that it afforded the Respondent an opportunity to raise the legal defence of res judicata.
He maintained that the primary issue in this matter addressed by the Applicants was the issue of sufficiency of outlet and that had already been reviewed and determined by the Referee in previous decisions. He referred the Referee to the decision of Thornton vs. Tittley et al reported in 5l O.R. (2d) at 315 and on appeal before the Court of Appeal at 6l O.R. (2d) 543. In that decision, Mr. Justice Steele at the lower Court, dismissed the Application on the basis of res judicata quoting from the decision of Re: Knowles 1938 CanLII 91 (ON CA), 1938 O.R. 369
“a Judgment or Order finally settles between the parties all those matters which are actually raised as issues between the parties, and decided by the judgment, but is also conclusive as to all other issues which could have been raised at the time of the hearing and were relevant to its determination”.
The same case on Appeal was dismissed on the basis of being a vexatious, abusive process and the Court of Appeal, in its notes, stated:
“This action followed unsuccessful attempts by the Plaintiff to prosecute the Defendants in criminal courts in other proceedings with respect to such matter and issue...
The very conduct of these proceedings, along with other proceedings taken by the Plaintiff, satisfy us that this action should be dismissed as being vexatious and an abuse of the process of the court.”
Thus, Mr. Ellies, argued that the matter should be dismissed on the basis of res judicata because there were no new facts or issues. In the alternative he advised, the matter could be dismissed on the basis of the proceedings being vexatious and abusive, being designed to prolong and delay the final legal outcome.
With respect to the interpretation of Section 15 of the Drainage Act, Mr. Ellies replied to the arguments of Mr. Good by suggesting that although it is a directive and mandatory provision, it is specifically qualified by Section 32 of the Drainage Act. He maintained that Section 32 could not be read out of Section 15 and specifically permitted discretion to be applied with respect to the cost beneficial aspects of securing a sufficient outlet.
Mr Ellies further referred to Section 10 of the Interpretation Act which states -
“Every act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.”
He maintained that Section 10 permitted a liberal interpretation of the Drainage Act to secure best the objective of the Act. He further referred the Referee to Section 106 of the Drainage Act which, in its many subsections granted broad discretion to the Referee. He concluded by requesting that the Application be dismissed.
The Referee, having read the material and authorities submitted by the Counsel, arrived at the following conclusions:
l. The Referee recognizes that this Hearing, although somewhat unique in character, was made in response to a consensual order requesting that the Referee provide a legal interpretation of the meaning of Section 15 of the Drainage Act and also to address the specific issue of res judicata as it would apply. Thus, this procedural motion is somewhat in the nature of a stated case although it should clearly be understood that there was no agreed set of facts filed by the parties. Section 15 of the Drainage Act reads as follows:
“Subject to section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet”.
The word “shall” is mandatory and should not be interpreted otherwise, however, the Section is specifically subject to Section 32. Section 32 reads as follows:
“Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low-lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low-lying lands in respect of such injuries.”
In my opinion, Section 15 cannot be read independent of Section 32 and the provisions of Section 32 must be given equal weight. Section 32 specifically gives discretionary powers to the Drainage Engineer and an alternate solution to the finding of a sufficient outlet. Common sense requires such an alternate provision because otherwise in many cases the cost of a sufficient outlet would be prohibitively expensive in circumstances where tolerable damages could be sustained and reasonably compensated for.
There was some argument as to whether the subject lands in this matter could be properly defined as “low lying lands”. I find that low lying lands refers to lands that might suffer from the flow of water downstream and is not to be interpreted as referring to the elevation of the lands. Consequently, although the damage might accrue indirectly to lands of higher elevation, the cause of the damage would be as a consequence of impact of water flows downstream.
I also repeat, as I have in many previous decisions, that the Drainage Act is remedial legislature and is to be liberally interpreted as indicated in Section 10 of the Interpretation Act. To attempt to interpret Section 15 without the qualifying common sense implicit in Section 32, would be to render many vital drainage schemes throughout Ontario impossible, if not illegal, and thus defeat the purpose of the Act.
With respect to the issue of res judicata, I would advise that even if the Applicants proceeded pursuant to Section 79 that it would, in my opinion, revisit issues previously determined and thus be subject to the principle of res judicata. I cannot envisage new evidence that was not previously available. Previous Decisions have clearly acknowledged that damages will accrue to the lands of the Applicants and that those Applicants are entitled to compensation. The level of compensation has also been defined in previous Decisions. Throughout the previous Decisions, the application of Section 32 has been the guiding principle. The Decisions implicitly recognize that the quality of the lands downstream compared with the quality lands upstream was such that damage could be sustained without great loss to the owners or the environment.
Indeed, the Applicants had an opportunity of invoking a special policy of the Ontario Government which provided generous funding for drains in unorganized territories. They elected, however, not to take advantage of this opportunity and therefore must accept the consequences of their decision. They must also accept the consequences of my Decision, namely that the No. 4 Drain complies with provisions of the Drainage Act, more particularly Section 15 of the Act, and that the compensation offered pursuant to Section 32 was adequate.
Both Counsel requested an opportunity to make written submissions with respect to costs. Accordingly, I grant the Applicants thirty (30) days to make written submission from the date of this Decision with a further twenty (20) days for the Respondent to make submissions after receipt of the Applicants’ submissions. The Applicants will have further l0 days to reply.
DATED: December 28, l998
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee