ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Vergeer v. West Elgin (Municipality)

1999 ONDR 6

DATE OF DECISION:

1999-01-21

1999-06

STATUTE:

Drainage Act

HEARING:

BETWEEN:

JOHN AND JOANNE VERGEER

APPELLANT

-AND-

THE CORPORATION OF THE MUNICIPALITY OF WEST ELGIN

RESPONDENT

DECISION

The Appellant, John Vergeer, filed an Appeal in the Court of the Drainage Referee at the Court House in St. Thomas, Ontario on the 20th day of May 1998. In the Appeal he requested the following remedies:

" l. A stop order to be made to preserve evidence.

2. An order granting this appeal and to set aside the Engineer's Report in regards to the Trudell Drain No. 2.

3. A declaration that by-law 96-22 of May 23 l995 is invalid.

4. A declaration to set aside the decision of the Ontario Drainage Tribunal of October 21, l996 with respect to the Trudell Drain No. 2.

5. A declaration to grant access to the site in strict compliance with the Act.

6. Costs to be awarded to crop damages for 1996 and upon completion.

7. An order extending the time for this appeal if necessary.

8. An order to return or credit outlet pipes and risers.

9. An order to grant a review of the engineer's fee.

l0. An order that the Reeve comply with the Municipal Act, Section 70 (a) (b) and Canadian Air Regulations 30l.08 (a).

ll. The Engineer failed to comply with the Act, Sections 15, 30 and 32 and request fees be credit to the account of the drain.

12. Full costs paid for this action, costs and damages to be paid out of the general account of the Municipality.

13. That your Honour make a site inspection.

l4. An order for such further and other relief as this Honourable Court may allow."

The Council of West Elgin responded to the Appeal by making an Application for Summary Judgment. In the Application for Summary Judgment, the Counsel for the Township of West Elgin made the following submissions:

" l. The decision appealed from was based on an appeal to the Ontario Drainage Tribunal under Section 64 of the Drainage Act R.S.O. 1990, c. d17

2. Section 101 makes decisions of the Tribunal final in matters of appeals based on Section 64.

3. The Notice of Appeal is not framed in judicial review so as to avoid Section 101.

4. The appeal is frivolous, vexatious and brought for the purpose of delay.

5. Other grounds as may be permitted. "

The Appellant, John Vergeer, (the Respondent in the Application) did not file any affidavit material in response, but filed a document he described as "Notice to Dismiss".

The Municipality's application for Summary Judgment was heard with the consent of the Parties at the Court House in Windsor on the 14th day of August l998 at l0:00 a.m.

The Respondent, (the Appellant in the original appeal) acting on his own behalf, presented evidence and called as his only witness his wife, Joanne Vergeer.

The Solicitor for West Elgin, Paul Courey of the firm of Paroian, Raphael, filed affidavit material, made submissions and cross-examined John and Joanne Vergeer.

A brief history of the drain is necessary for a clear understanding of the issues in this application. A Decision of the Ontario Drainage Tribunal dated the 21st day of October l996 dealing with the same Municipal Drain provides a brief history. I quote from the Decision as follows:

"The Trudell Drain was originally constructed pursuant to a report submitted by H. H. Todgham, dated January 5, 1954 and consisted of 267 meters of 200 mm tile commencing on the west side of the road allowance between Lots l5 and 17 and extended easterly into the south half of Lot 17 and thence northerly into the north half of Lot 17 to its outlet in a private ditch. All of the lots are located in Concession 3 of the Township.

The owners of lands on which the existing Trudell Drain is located requested that the existing tile be replaced because it was in poor condition and not working. The owner of part of the north half of Lot 17, Concession 3 requested that the existing private open ditch that served as an outlet for the Trudell Drain be backfilled and a new tile continue beyond the old municipal tile and beside the backfilled ditch to an outlet further downstream. The Township appointed M. P. DeVos to prepare a report on this request.

The current work was done pursuant to a report title Trudell Drain No. 2, dated March 2, l995, signed by M.P. DeVos of Spriet and Associates. The work consisted of construction of approximately 608 meters of 200 mm to 300 mm concrete filled tile and storm sewer including related appurtenances. The storm sewer is Boss "Poly-Tite" and runs from station 0+360 to station 0+220, past a pond adjacent to the line of the drain. A sealed storm sewer pipe was used in this location to prevent the pond from being drained. A catchbasin was installed at about station 0+250 to allow overflow from the pond into the drain.

The old open ditch was backfilled and a new tile constructed in native material alongside of the ditch. The outlet was protected by an outlet structure constructed of stone rip rap underlaid by a filter blanket. An approach apron of quarry stone rip rap 2 meters long and 3 meters wide also underlaid with a filter blanket was constructed to allow surface water to flow from the drain to the outlet ravine.

The work was carried out in the months of July and August l995.

The working area specified in the report is shown on the plan as General Notes 2 and 3 and is as follows:

2. The working width available to the contractor to construct the drain shall consist of those lands immediately adjacent to the drain and connections and shall not exceed an average width of l5 meters.

3. All owners along the course of the drain shall make an access route from the nearest road to the drain location available to the contractor. The average width of this route shall not exceed 8 meters. "

The Ontario Drainage Tribunal proceeded to make the following Order:

"1. The Township is ordered to complete the construction of the drain by:

(a) repairing the erosion control system and the erosion that has occurred at the outlet structure; and

(b) repairing the eroded swale at the boundary between the Vergeer and the Vanderloo property; and

(c) correcting the erosion at the catchbasin at the north side of the point near station 255, in strict compliance with the specifications.

2. The appellant was adamant that some control be placed on the surface water flowing onto his property from the upstream owner. The appellant indicated a preference for a hickenbottom inlet in this location. The Tribunal directs the municipality to construct a berm and hickenbottom inlet to the drain at the property boundary between Vergeer and Vanderloo to assist in controlling the surface water passing this point. The cost of this work is to be charged to the maintenance account of the drain and collected by pro rating over the entire assessment schedule, the next time maintenance charges are levied. The inlet is to be added to the specifications and become part of the drain.

3. Access must be provided by Mr. Vergeer through his property. At the hearing, Mr. Vergeer indicated he preferred access for this work to be made by traveling down his lane, past the buildings, to his back lanes, avoiding, as much as possible, traveling on the air strip. This is the access route the contractor is to take. The OPP is to assist the contractor in gaining access if required.

4. The Tribunal assesses the appellant $2,000.00 in costs to partially offset the costs of his appeal. This $2,000.00 to be paid to the Township within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45 day period, the council is directed to add $2000.00 to the taxes in arrears on Roll number 70-025, part N l/2 Lot 17, Concession 3, Aldborough (J & J Vergeer). This $2,000.00 is not to be considered eligible for grants.

The Tribunal then provided reasons for its decision:

l) In the opinion of the Tribunal, the Township stood ready to complete the work and was prevented from doing so by the appellants. Insofar as there are deficiencies in the work, the appellants are the main cause for these deficiencies remaining unresolved at this time.

2. In the opinion of the Tribunal, the ratepayers assessed for the drain should not have to pay a significant portion of the cost of the involvement of the engineer after August 1995 or of this hearing.

It is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act. Dated at Chatsworth, Ontario this 21st day of October, l996. "

Mr. Paul Courey, Counsel for the Township of West Elgin, filed affidavit evidence before the Referee, sworn to by the Clerk on July 31, 1998, which disclosed:

"That after the Decision of the Tribunal, the Municipality attempted to complete the remedial work on several occasions. The Township was taking extreme care not to unduly disturb Mr. Vergeer's land and sought to do the work in very dry conditions. Nothing more was heard and the Township's scheduled work was September 5 l997 or in the event of rain September 8 l997. Counsel for Mr. Vergeer was advised of those plans.... Unfortunately wet weather set in and the work could not be completed in the fall of l997 nor could it be done through the winter because of lack of frost"

" I believe "(the Clerk)" that Mr. Vergeer is aware that with current weather conditions the Township would be contemplating the work very soon. In fact the Drainage Engineer advises me (the Clerk) that he feels conditions will be suitable by mid June barring unusual weather."

As has been noted, Mr. Vergeer appealed in May before work could be done.

Mr. Paul Courey, in his submissions requesting summary judgment, advised that the Appeal to the Ontario Drainage Tribunal referred to above, had been under Section 64 of the Drainage Act from which Section no appeal of the Drainage Tribunal decision was available. He made reference to Section 101 of the Drainage Act which reads as follows:

101. In any application, appeal or reference under sections 8, l0, 48, 49, 50, 54, 64, 65, 66 and 75 the decision of the Tribunal is final. R.S.O. 1980, c 126, s. 101.

Mr. Paul Courey argued that Section 101 was clear in its terms and accordingly, unless the Appeal had been framed as a "Judicial Review", there is no possible jurisdiction for the appeal. He accordingly submitted that he was entitled to have the Appeal summarily dismissed.

The Appellant, Mr. John Vergeer, replied by reading (under oath) from a prepared statement entitled "Notice to Dismiss" previously referred to, which I will quote in full.

"The Appellant refers to Section 106 (2) (which see) and includes a photocopy of the right of a landowner to a reconsideration and requests that a hearing be held in that the Tribunal decision was wrong in fact as provided in Part 2.

1. The Affidavit of Joanne Groch, sworn July 3rd, 1998 is materially wrong and cannot be supported.

ITEM # 5 Cannot be supported and is directly opposite to the events.

ITEM # 7 The appellants received no correspondence from their lawyer.

ITEM # 7 Mrs. Groch's statements about wet weather is completely false. In fact the day that the Engineer, Drainage Superintendent, backhoe with catch basin, dump truck, supply truck, Contractor, and two O.P.P. cruisers drove to the site over dry terrain, the Contractor refused to carry out the work. Furthermore, why make such a demonstration in wet weather. Two councilors viewed the site and it was "dry enough to plow".

Data from Environment Canada contradicts this false claim.

ITEM # 8 Mrs. Groch asserts facts that she cannot prove

ITEM # 9 The Appellant denies delaying. Mrs. Groch cannot testify to the appellants motive.

ITEM # 10 This statement cannot be supported, the Appellant demands proof.

2. The Notice of Motion, item 4, is false and cannot be supported. The Appellant demands strict proof thereof.

3. The reference to Section 101 of the Drainage Act is without merit and lacks foundation in that the Appellant did not apply under the sections quoted by the respondent. Nonetheless the issue of Section 64 cannot be ignored. The Appellants are in possession of information that allows a reconsideration of a decision (see copy). It would stand to reason that the referee would also have an opportunity as well. The act allows under section 206(2) to the Referee to hear the appeal in the same manner as the Tribunal.

The Appellant states that the Drainage Superintendent and Engineer claimed facts that cannot be supported by the physical evidence. In the appellant's opinion, perjury and obstruction of justice occurred numerous times during the course of the Tribunal hearing, the appellant can furnish the supporting data and material evidence and requests an opportunity to do so.

Furthermore, the Appellants pleaded strenuously for a simple site inspection and were denied an opportunity in part due to a misunderstanding about this matter. Had a physical inspection been carried out the members would realize that they had been mislead by the testimony of the engineer and superintendent. The Appellants understand that the Tribunal members met privately with the respondents after the hearing.

4. The respondent's claim (Item 4) is designed to mislead and cannot be supported. The evidence trail shows a pattern of accuracy, concern and timeliness by the Appellants. In fact, any correspondence received from the Township was normally replied to by the following day.

In fact, the appellants have suffered stress, illness, financial costs and have spent hundreds of hours gathering evidence, statements, the Engineer's Report, meetings, and photographs which have been compiled in the report titled Draft Report - Trudell Drain.

In fact, the appellants would never have petitioned the Trudell Drain No. 2 and furthermore, would never have made an appeal before Tribunal had they known in advance that the situation would go from bad to worse.

The Appellants relied upon their honesty, good character and a belief that accurately and fairly stating the problems under oath and a basic site inspection would resolve the matter simply. The appellants had no way to persuade the engineer and superintendent to tell the truth and nothing but the truth. Nor could they demand a site inspection.

The Appellants were denied any element of natural justice.

In view of the foregoing, an appeal would deal with this matter now or if you would prefer the appellants could proceed by way of filing criminal charges later.

5. The respondent's Motion should be denied in that it does not address the appellants appeal which made reference to sections 11, 14(1), 15, 30, 32, 33, 48(c). Furthermore, the Motion does not address the validity of by-law 96-22, May 23, 1996 by which additional funds were allotted to the contractor above the tendered amount, resulting from errors made by the Engineer o\in preparation of the tender document.

The Motion fails to deal with the access route (another area of testimony by the engineer that contradicts the facts and the law). The Motion fails to address the matter of the Engineer's fee. The Motion fails to address crop damage and ignores the fact thee project is far from complete and his attempt to describe the work to be done as remedial is wrong. The Act specifies that work performed is either construction or maintenance. The appellant requests that a detailed work plan clearly showing the material, equipment and time required to finish the construction be furnished in order that your Honour can determine the veracity of respondent's claim.

The Motion should be dismissed because it does not deal with the issue of a credit to the ratepayer's in that the certificate of completion is invalid.

The Motion should be dismissed in that it does not deal with the issue of the unnecessary policy involvement and the appellant's freedom and quite enjoyment as guaranteed under the Charter.

The Motion should be dismissed in that it does not deal with Section 70(a)(b) and Canadian Air Regulations 301.08A.

The Motion should be denied as the respondent did not address the issue of Council Meeting of April 24, 1996 where the Engineer admitted to shortfall of stone and downstream damage which contradicts this sworn testimony on both counts.

With all due respect, the Appellant requests a public hearing in order that this matter be settled fairly. The entire matter resulted from unfinished work by the contractor the Superintendent's belligerent and obnoxious manner, the Engineer whose firm has been before Tribunal on numerous cases and lost and cannot be relied upon. Furthermore, although Council was given numerous opportunities to solve the problem in a low cost way a long time ago, they continued to support and defend the Engineer and Contractor even though each Councillor had a complete site inspection as well as a review of the highlighted areas of the Draft Report. Tribunal decisions show that the township must act as an agent for the people on the drain and not shelter the Engineer from harm.

The Appellant refers to section 103(1) and with all due respect requests that a hearing be held in Elgin County. "

All of the above was read into the Record by Mr. Vergeer.

At the conclusion of Mr. John Vergeer's remarks it was apparent to the Referee that there was little disagreement as to what had to be done to the Drain, other than a dispute with respect to the access route. It was further agreed by all Parties that most of the work that had to be done was covered by the warranty of the Contractor and that the Contractor had agreed to complete the work - providing he could gain access to the Vergeer property. Mr. Vergeer alleged that the Tribunal misunderstood his evidence with respect to the preferred route and read into the Record portions of the transcript he had received through the Freedom of Information process. Regrettably the notes were not clear and the matter remained somewhat ambiguous. In any event, Mr. Vergeer presented clear evidence to indicate that he preferred to have access for the remedial work by entry from the Township Road, hence easterly over the north boundary of the W. & L. Vanderloo property. His recommended route continued easterly over the Vergeer property to a bush area, thence northerly along the perimeter of the bush to a point where the major portion of the work was to be done at or near the outlet of the Trudell Municipal Drain. This route was different from that ordered by the Tribunal which was exclusively over the Vergeer property from the same road but with entry near the north boundary. After entry the route so ordered continued along a roadway past the Vergeer buildings along the newly constructed runway to the same point.

It was apparent to the Referee that not a great deal turned on which access route was followed by the Contractor's vehicles, providing the conditions were dry at the time so that the fields would not be rutted. It appeared that neither route would interfere with existing crop production.

It was further apparent to the Referee that the thrust of Mr. Vergeer's remarks were with respect to complaints relating to the Decision of the Ontario Drainage Tribunal. Particularly he objected to the Tribunal's assertion that he had interfered with access to the Drain for which action he had been assessed the sum of $2,000.00 in costs.

After hearing the submissions from both Parties, the Referee concluded that the remedial work on the Drain ought to be proceeded with immediately before inclement weather delayed it further. The Drain had been completed in 1995 and most of the complaints made by Mr. Vergeer related to the unfinished portions of the work which he had in fact not allowed the Contractor to complete by denying access. In this regard, he was the author of his own misfortune. It was apparent to the Referee that further delay could not be justified and therefore the Referee made an Order at the Hearing that the remedial work on the drain commence forthwith. The Order was in the following terms:

" Court File no. 175/98

IN THE COURT OF THE DRAINAGE REFEREE

Delbert A. O'Brien, Q.C. ) Thursday, the 10th day of

Ontario Drainage Referee ) September A.D. l998

BETWEEN:

JOHN VERGEER and JOANNE VERGEER

Appellants

-and-

THE CORPORATION OF THE MUNICIPALITY OF WEST ELGIN

Respondent

ORDER

THIS MOTION made by the Municipality of West Elgin for an Order dismissing the appeal of John Vergeer and Joanne Vergeer of a decision made by the Ontario Drainage Tribunal on October 21, 1996 concerning the Trudell Drain #2 was heard on August 14, 1998 at Windsor, Ontario, on the consent of the parties.

ON READING the affidavit of Joanne Groch, sworn July 3 l998 and on hearing the submissions of Counsel for the Municipality of West Elgin and of John Vergeer and Joanne Vergeer, appearing in person,

1. THIS COURT ORDERS that the Appeal of John Vergeer and Joanne Vergeer of a decision of the Ontario Drainage Tribunal dated October 21, l996 concerning the Trudell Drain #2 in the former Township of Aldborough is hereby dismissed insofar as the appeal concerned matters governed by the Drainage Act, R.S.O. 1990, c. D 17, s. 64.

2. THIS COURT ORDERS that the Municipality of West Elgin is authorized to complete the work that the Ontario Drainage Tribunal's decision of October 21, l996 specified. That work is to be completed forthwith.

3. John Vergeer and Joanne Vergeer are to provide access through their lands as ordered by the Tribunal. The route from the area near the buildings to the back lanes along the south limit shall be as agreed by the parties or, failing agreement, along the edge of the runway.

4. THIS COURT ORDERS that the relief sought by the Respondent, being matters governed by Sections other than Section 64 of the said Act is adjourned sine die, returnable at a date, time and place appointed by the Ontario Drainage Referee.

5. THIS COURT ORDERS that the issue of costs of this proceeding shall be addressed by the parties after the determination of the foregoing matters.

Ontario Drainage Referee

DECISION (Continued)

Pursuant to the Order of the Drainage Referee made the 10th day of September, l998 a further Hearing was convened in the Ontario Court (General Division) at St. Thomas Ontario on the 16th day of December, 1998. The Referee was advised at the commencement of the Hearing that, pursuant to the above mentioned Order, the Contractors for the Township had gained access to the property subsequent to the previous Hearing and had completed the work on the Trudell Drain No. 2.

Mr. Vergeer outlined briefly the claims in his appeal as follows:

(a) He requested that the Referee reverse the Order of the Ontario Drainage imposing on him a payment of $2,000.00 in costs;

(b) He requested that By-Law No. 96-22 of the Township of Aldborough be quashed inasmuch as it provided for payment for top soil in the amount of $2,163.00 which payment was in his submission was not authorized inasmuch as the form of "tender and agreement" in paragraph 5 provided for "the contractor to supply all materials to complete the drainage works." The Appellant objected to the assessment for the topsoil being charged to all the owners in the drain notwithstanding the fact that the said payment had been made to Mr. Vergeer and his wife for topsoil provided from their farming operation.

(c) Mr. Vergeer requested that he be reimbursed for $489.00 privately paid by him to an Engineer for professional advice. The professional advice so obtained was not proffered at the Hearing.

(d) Mr. Vergeer also claimed reimbursement for the cost of the damaged outlet pipe formerly installed in the old drain and damaged during the current construction. He claimed $541.00 which included delivery and installation charges. At the conclusion of his remarks Mr. Vergeer advised the Referee that he did not intend to produce further evidence, at least at that time in the proceeding.

Mr. Courey called as his first witness the Clerk of the Township, Mrs. Joanne Groch, who had served as Clerk of the Township for a period exceeding l0 years. She advised that she was fully familiar with the accounts relating to the Trudell No. 2 Drain. She stated that By-Law No. 96/22 had been properly passed by the Municipality for the purpose of paying Mr. and Mrs. Vergeer the sum of $2163.00 for the top soil obtained from their farm for use during the construction of the Trudell No. 2 Drain. She further advised that all the work had been completed on the drain, much of it as warranty work by the Drainage Contractors. She confirmed that the old outlet pipe removed from the old drain to which Mr. Vergeer had made reference had been damaged during the current construction and that it had been scrapped.

The Clerk, during the course of cross-examination by Mr. Vergeer, replied that the supply of top soil had never been the responsibility of the contractor inasmuch as it was not included in the extent of work set out in the form of tender agreement. The Clerk further noted that the notes on the Plan and Profile being part of the Trudell No. 2 Drainage Report dated August 2 l995 provided only for the Contractor to spread top soil. It was her information that the contractor had spread the top soil and therefore he had fulfilled his obligations completely. The Clerk concluded by stating that By-Law 96-22 had been properly passed by the Township, that it related to top soil used in the construction of the drain and that the said sum recited in the by-law was properly assessed pro rata to all owners assessed on the Trudell Drain No. 2.

Mr. Courey called as his second witness the Drainage Superintendent for the Township of Aldborough, John Poole. Mr. Poole was an experienced Drainage Superintendent, fully qualified for the position having held office as Treasurer and President of the Ontario Drainage Superintendent's Association. He advised that the Drain had now been completed and that he had received the Completion Certificate from the Engineers with respect to the same. Mr. Poole pointed out that the cost of the topsoil, namely $2,000.00 had been listed in the Schedule "B" Cost Estimate on page 6 of the Trudell Drain # 2 Drainage Report. Consequently all assessed owners on the Trudell Drain # 2 who received and reviewed the Drainage Report were fully informed as to the cost of supplying the top soil. He advised that he was present when arrangements were made with the Engineer and Mr. Vergeer to supply the top soil from the pile of top soil available from the construction of the Vergeer pond. The price had been negotiated and Mr. Vergeer had submitted his bill, of which $l63.00 represented the G.S.T. payable. Mr. Poole pointed out that the extent of work on page 3 of the form of tender agreement, which sets out the work to be done by the Engineer, did not include the supplying of top soil. He advised that before the tender form was completed, agreement had been reached to obtain the top soil from the Vergeer farm. Mr. Poole completed his statement by advising that the outlet pipe for which Mr. Vergeer was seeking compensation was the property of the old drain and had been discarded as worthless, having been damaged in its removal.

In responding to questions directed to him by Mr. Vergeer during cross examination, Mr. Poole advised that the damaged pipe was not covered in the paragraph under the heading BRIDGES AND CULVERT PIPES on page 8 of the Specifications for construction of the Trudell Drain # 2 Drainage Report. That section provided for all culverts to be salvaged or compensated for. Mr. Poole indicated that the subject pipe was neither a bridge nor a culvert as referred to in that section. Likewise Mr. Poole advised that it did not fall within the definition of TRIBUTARY DRAINS as set forth in page 13 of the aforesaid Specifications. Again, that Section required outlet pipes to be carefully salvaged and/or connected.

Mr. Poole pointed out that this was not part of a Tributary Drain, but rather had been originally installed as part of the Trudell Drain # 2. He advised that the installation had been made in approximately 1988.

Mr. Poole concluded by stating, in response to Mr. Vergeer's questions, that the Township had complied with every requirement both in the Drainage Report and in the Order of the Ontario Drainage Tribunal.

Mr. Courey also called Dennis Chevalier, a heavy equipment operator who had been in charge of the construction work on the Trudell Drain # 2. Once again Mr. Chevalier had many years experience in drainage construction. He advised that he had been involved in completing the tender form and he was well aware at the time that the top soil was not to be supplied by the contractor, but rather was to come from the Vergeer farm. He therefore was not surprised that the form outlining the extent of the work did not include the supply of top soil. Mr. Chevalier further advised that before removing the top soil from the area adjacent to the pond, he had received instructions from Mr. Vergeer as to which pile to remove. He advised that they had completed all the warranty work which took approximately two days. He stated they had consulted with the Drainage Superintendent and the Ontario Provincial Police continuously during the remedial work. He advised that in that two day period they added rip rap to the outlet, installed a hickenbottom inlet at the property line and made changes to the catchbasin at the pond. He confirmed that they had no problem with access during this last work and that the outlet pipe which they had removed from the old drain had been damaged in removal.

Mr. Chevalier, during cross examination by Mr. Vergeer, referred to the general notes on the Plan of Profile of the Drainage Report which stated:

"Existing open ditch to be backfilled and graded and provide outlet for surface water using existing soil material from sides of ditch and pond."

Mr. Chevalier also referred to a further note on the Profile which stated:

"Top soil to be distributed over backfilled ditch to a depth of 250 mm (top soil located on the west side of pond"

Mr. Chevalier confirmed that when they first attempted to make repairs to the Drain, subsequent to the Decision of the Ontario Drainage Tribunal, the site had simply been too wet.

He concluded by advising that the outlet pipe which had been removed from the old drain had been destroyed during excavation and had no value.

SUBMISSIONS OF MR. VERGEER

Mr. Vergeer commenced his submissions by advising the Drainage Referee that he had made numerous attempts to settle the matter so as to avoid the current Hearing. He said that he had advised the Township that the $2,164.00 charge with respect to top soil should be paid by the contractor rather than by the assessed owners. He further stated that he had sought to have the $2,000.00 penalty imposed by the Ontario Drainage Tribunal reversed. He complained to the Drainage Referee that the Tribunal had not conducted a fair hearing, particularly because of their refusal to take a view of the site. He was of the opinion that if they had observed the outlet portion of the drain that the matter could have easily been resolved.

Mr. Vergeer pointed out that the engineering Completion Certificate should not have been given to the Township when there was so much remaining work to be done under warranty. He further advised that he had requested that the Township pay him for the cost of the drainage outlet pipe that had been destroyed during the course of its removal. Mr. Vergeer concluded by indicating that the entire exercise, including the hearings before the Ontario Drainage Tribunal and the Ontario Drainage Referee had been very stressful for both him and his wife and their health had suffered as a result. He therefore sought relief from the Drainage Referee for the matters he had outlined at the commencement of the proceedings.

SUBMISSIONS OF MR. COUREY, Counsel for the Respondent

Mr. Courey indicated that this was a relatively simple drainage project which had been turned into a fiasco as a result of the conduct of the Appellant. He advised that there had been no major disagreements as to what work had to be completed. All the work required had been defined by the Ontario Drainage Tribunal and the matter would have been resolved but for the continued obstinacy of the Appellant. Mr. Courey advised that at all times the Township was anxious to complete the work and the Contractor was willing. Mr. Courey maintained that the Appellant had never given a suitable reason for refusing to co-operate or grant access. Mr. Courey maintained that the $2,000 cost penalty imposed by the Tribunal was justified and there was no reason to set it aside.

With respect to the application to quash By-Law 96-22, Mr. Courey pointed out that such a request had not been part of the original appeal which had been filed exclusively pursuant to the terms of Section 64 of the Act. Mr. Courey, as Counsel for the Township, maintained that Mr. Vergeer had referred to Section 118 of the Act for the first time during the course of the current hearing. Mr. Courey pointed out that Mr. Vergeer was not simply a farmer, but rather an experienced Tax Accountant accustomed to dealing with complex matters and governments. He further advised that Mr. Vergeer had sought and received legal advice with respect to this matter. Mr. Courey advised that, in his opinion, Mr. Vergeer, as a professional was not entitled to any special treatment. Mr. Courey advised that By-law 96-22 was perfectly legal, dealing as it did with the supply of material to be used in the drain which material could have been supplied by any third party and was properly charged to all the assessed owners on the Drain. He stated that Mr. Vergeer's attack on the By-law was without any justification.

With respect to the outlet pipe, Mr. Courey advised that it was part of the old drain and as such it belonged to all the assessed owners in the Drain and therefore Vergeer had no special property right in it. According to the Drainage Superintendent it had been in the ground for almost a decade and the fact that it was damaged when it was removed was not unexpected. Mr. Courey also maintained that Mr. Vergeer had no legal basis for claiming reimbursement for monies spent by him in retaining privately a drainage engineer to provide him with drainage advice. Mr. Courey concluded by saying that the appeal of the Appellant was entirely without legal merit and ought to be dismissed. He added that Mr. Vergeer had proffered no credible evidence on which the Court could rely.

With respect to the issue of costs, Mr. Courey argued strenuously that the Township ought to be compensated significantly in the matter of costs. He advised that although this project was of a limited scale, that the cost to the Township had been out of all proportion. He stated that not only had the Township been required to retain legal services for the Hearing, but as well consumption of the Clerk's time, of the Drainage Superintendent's time and even of Council's time had been prodigious. He advised that the Ontario Drainage Tribunal had, in its Decision, penalized the Appellant in a significant cost award, but that apparently it had made no impression on the Appellant. He therefore requested that the Referee make a further award for costs so as to bring home to the Appellant the fact that he was not justified in abusing the system as he sought to do. Mr. Courey advised that in his opinion the legal costs incurred by the Township in proceedings before the Drainage Referee would exceed $6,000.00. He therefore requested that on a Party and Party scale an award of $4,000.00 should be the minimum award considered. He therefore asked that the Referee fix costs in the sum of $4,000.00 in favour of the Respondent Municipality.

The Referee, having considered the evidence and heard the submissions made, arrived at the following conclusions:

(a) The Appellant's claim to obtain relief with respect to the outlet culvert falls squarely within the provisions of Section 64 of the Drainage Act and therefore must be dismissed in accordance with the Order of September 10 l998 previously made by the Ontario Drainage Referee.

(b) The Claim for reimbursement with respect to the Engineering fee in the amount of $489.00 could only be justified as a qualified disbursement. In the circumstances the Engineer was not called to give evidence nor was a professional report proffered in evidence. Consequently, such advice, whatever it may have been, was of no assistance in the Hearing and I find it not to be a qualified disbursement. Therefore the Appellant is not entitled to reimbursement for said amount.

(c) With respect to the Appellant's request that the Referee reverse the Decision of the Ontario Drainage Tribunal which assessed special costs of $2,000 against him, to be added as taxes to his property; I can find no justification in changing that decision. It would appear that the Referee, relying on general Appellate authority granted could review the Decision with respect to costs made by the Ontario Drainage Tribunal. However, in normal circumstances the Referee would be reluctant to change such a Decision unless very substantial reasons were presented for doing so. In the circumstances of this case there is nothing in the Appellant's conduct which gave any indication of regret or apology. Consequently that aspect of the Appeal is dismissed.

(d) Finally, the most substantial grounds on which the Appellant could rely is the legality of By-law 96-22. I find nothing in the evidence to suggest any grounds whatsoever upon which the By-Law should be quashed. The By-law appears to be validly passed by the Township for the purpose of paying the Appellant for top soil provided for use during the construction of the Drain. The cost of the top soil cannot be queried by any of the assessed owners inasmuch as it was set forth clearly in the cost estimate of the drain in the Drainage Report that was fully circulated and subsequently authorized by By-law. The Report clearly notes on the Plan and Profile where the top soil is to be found and how and by whom it is to be distributed and spread. It is to be acquired on the Appellant's property and presumably it is to be paid for. The amount to be paid is clearly set forth in the Estimate of Costs previously referred to. Likewise, in the same notes it requires that the Contractor distribute and spread the same as part of the work. The Contractor did not object at any time to distributing or spreading the top soil. It would have been perfectly permissible for the Township to obtain from a third party the supply of top soil. I therefore find that I have no grounds whatsoever on which to set aside or quash By-law 96-22 and further find it to be valid and binding.

Having deal with the specific points of the Appeal I therefore have no alternative but to dismiss the Appeal in its entirety.

Returning to the matter of costs, I note that the Appellant is requesting that no costs be charged to either Party. However, I cannot agree with him in that respect and believe that I must grant costs in this matter to the successful Party, namely the Respondent. Mr. Courey has argued strenuously for a substantial award of costs indicating that the Municipality has been put to substantial and unnecessary expense. He stated in this Submission that the legal costs of the Township would exceed $6,000.00. He points out that not only has there been considerable time spent in preparation for legal hearings, but as well the Clerk, the Drainage Superintendent and Council have been required to spend a considerable time with respect to this matter. Mr. Courey has requested costs on a Party and Party scale at 2/3rd of $6,000.00 namely $4,000.00. In the circumstances, I agree that this is a reasonable amount. In normal circumstances I am reluctant to make large awards of costs, particularly in matters involving farmers where the entire exercise is a learning experience. In the main, drainage matters are not essentially adversarial in nature and the artfully well crafted Drainage Act is calculated to permit constant adjustments as the drainage project proceeds. However, in the present circumstances I find that we have a professionally trained and skillful Appellant who has assumed an extremely adversarial attitude in this matter, making it almost impossible for the Municipality to reach a satisfactory settlement. I therefore award costs to the Respondent Municipality in the sum of Four Thousand Dollars ($4,000.00) to be paid to the Township within forty-five (45) of the receipt of this decision and once again to be credited to the account of the Drain. As with the Ontario Drainage Tribunal, if the account remains unpaid after the 45 day period, Council is directed to add $4,000.00 to the Appellants' taxes as arrears on Roll No. 70-025 Part North one-half Lot 17, Concession 3, Aldborough Township (J. & J. Vergeer).

DATED: January 21, 1999

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee