ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
Campbell v. Mariposa (Town)
2000 ONDR 1
2000-10-20
2000-01
STATUTE:
HEARING:
BETWEEN:
COLIN CAMPBELL
Appellant
-and-
THE CORPORATION OF THE TOWNSHIP OF MARIPOSA
Respondent
Paul Courey, Esq. Solicitor for the Appellant
Ronald J. Swain, Esq. Solicitor for the Respondent
DECISION
The Appeal of Colin Campbell was heard by the Drainage Referee on the 16th day of October, 2000 in the Court House in Lindsay, Ontario. The Appeal was with respect to the award of costs made by the Ontario Drainage Tribunal at a Hearing which occurred on the 12th day of September, 2000.
In addition to the aforementioned appeal, the Appellant made an application to the Drainage Referee in the following terms:
"The Applicant makes application for:
(a) an Order abridging any time limit for serving or filing this application, if necessary;
(b) An Interlocutory Injunction restraining the Respondent, its agents and contractors from performing work on the Short Drain, Branches A and B, as is proposed in a report by T. Pridham, P.Eng., dated March 10, 2000, until such time as the report ordered by this Court on August 31, 2000 concerning the Short Main Drain has been procured, considered, any appeals dealt with, and any work thereunder completed.
(c) A permanent Injunction restraining the Respondent, its agents and contractors from performing any work on the Short Drain, Branches A and B., which would lower the grade, widen the channel, or have in any way the result of increasing the flow or lowering the water table in the adjacent lands without first procuring the report of an engineer which report declares that no damages to downstream lands will occur.
(d) Other relief as may be permitted."
In addition, the Appellant made a second application on the following terms:
"The Applicant makes application for:
(a) An Order abridging the time for service, if necessary;
(b) An interim and a permanent injunction restraining the Respondent, its agents and contractors from constructing a drainage works known as the Fowler Drain as is proposed in a report signed by T. Pridham and dated June 15, 2000 until such time as a report on the Short Main Drain is obtained and dealt with as provided for in s.78 of the Drainage Act.
(d) His costs in this matter;
(d) Other relief as may be permitted."
With the consent of Legal Counsel, the Drainage Referee dealt first with the Applications seeking relief by way of a restraining order.
Mr. Swain, acting for the Municipality, advised the Referee that no work was contemplated on either the proposed Fowler Drain or the Branches A and B of the Short Drain in the immediate future. He therefore indicated that he had no difficulty in giving an undertaking to the Court on behalf of the Municipality that no work would be done with respect to either Project until such time as a formal hearing of the Drainage Referee could be convened in December next to deal with both Applications.
Therefore, with the consent of both Counsel, the Drainage Referee made an Interim Order that
(a) No work was to be done on the proposed Fowler Drain or Branches A and B of the Short Municipal Drain until a Hearing is convened in December of 2000 before the Drainage Referee. If, for any reason, such Hearing is not convened such work is not to commence until after January 1, 2001.
(b) No Order is made with respect to the issue of costs relating to the aforesaid Applications.
The Drainage Referee then proceeded to hear the Appeal with respect to the issue of costs relating to the previous Decision of the Ontario Drainage Tribunal. A Notice of Appeal with respect to costs was filed in the following terms:
"THE APPELLANT APPEALS to the Court of the Drainage Referee from a Decision and Order of the Agriculture Food and Rural Affairs Appeal Tribunal dated October 11, 2000 concerning the Short Drain, Branches A and B.
THE APPELLANT ASKS that the award of costs be set aside.
THE GROUNDS OF THE APPEAL are as follows:
l. The Tribunal awarded costs in an amount which is punitive, without just cause.
The Appellant made a motion, to be dealt with in writing, which the Tribunal indicated that it would hear orally. By hearing the motion orally just before the commencement of the main hearing, the Tribunal removed any opportunity for the Appellant to withdraw his appeal to the Tribunal before the hearing was held and his exposure to costs was incurred.
The Tribunal indicated that it would "hear" the motion, but when the hearing convened, the Tribunal declined to receive oral submissions from counsel."
The Drainage Referee enquired of Legal Counsel as to whether they were prepared to proceed with this Appeal in view of the short notice that the Respondent had received. Both Counsel indicated that they were prepared to proceed and urged the Drainage Referee to hear the matter immediately to save further costs.
Mr. Courey, Counsel for the Appellant, made application for an amendment to the style of cause, adding a party, namely Christopher Dale, as a Party Appellant.
Counsel for the Respondent did not object to the addition of the Party Appellant and accordingly the Drainage Referee Ordered that Christopher Dale be added as a Party Appellant in the matter.
The Appeal heard by the Drainage Referee therefore related only to the matter of costs awarded by the Drainage Tribunal. The Drainage Tribunal had dealt with an Appeal of Doris Chidley, Evelyn Cleland, Murray Teel, Colin Campbell and Christopher Dale pursuant to s. 48 of the Drainage Act. The Tribunal had dismissed the Appeal of all parties and proceeded to award costs. The Order of the Tribunal was as follows:
" l. The Appeals by Doris Chidley, Evelyn Cleland, Murray Teel, Colin Campbell and Christopher Dale under Section 48 of the Drainage Act from the March 2000 report of T. M. Pridham on the Short Drain, Branches A and B., Township of Mariposa are dismissed.
The Tribunal assessed the appellant Doris Chidley $400.00 in costs to partially offset the costs of this appeal. This $400.00 to be paid to the Township of Mariposa 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 $400.00 to the taxes in arrears on Roll number 40-121-00 Part Lot 20 Reg. Plan 57R1420 parts 1 and 2, and Reg. Plan 57R2730 Part 3, Concession 12 (Chidley). This $400.00 is not to be considered eligible for grants.
The Tribunal assesses the appellant Evelyn Cleland $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-031-00 S. Part Lot 11 Concession 11 (Cleland). This $900.00 is not to be considered eligible for grants.
The Tribunal assesses the appellant Murray Teel $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-034-00 Part Lot 11 and Part Lot 12 Concession 11 (Teel) This $900.00 is not to be considered eligible for grants.
The Tribunal assesses the appellant Colin Campbell $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-111-00 Part Lot 15 Concession 12 (Campbell). This $900.00 is not to be considered eligible for grants.
The Tribunal assesses the appellant Christopher Dale $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-121-00 Part Lot 10 Concession 10 (Dale). This $900.00 is not to be considered eligible for grants.
The non-administrative costs of the Township in respect to this appeal shall form part of the drainage works and 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.
The Reasons for these decisions are:
The Appellants failed to bring cogent evidence before the Tribunal on any of the issues in the appeal.
The principal purpose of the appeal was to prevent the municipality from performing its statutory duty of maintaining municipal drains."
The Drainage Referee has no jurisdiction to deal with the Appeal on the merits as it is pursuant to Section 48 of the Drainage Act. Section 101 of the Drainage Act provides that on any appeal or reference pursuant to Section 48 of the Drainage Act the decision of the Tribunal is final. Section 98 (10) empowers the Tribunal to deal with the issue of costs in all proceedings before it.
"Section 98 (10) - The costs of any proceedings before the Tribunal shall be paid by or apportioned between the parties in such manner as the Tribunal considers proper, and where costs are ordered to be paid, the order for payment thereof may be filed in the Small Claims Court and is enforceable as a judgment or order of that court. R.S.O. 1980, c. 126, s 98 (10), revised."
However, Section 101 does not make any reference to Section 98 (10) and indeed Section 106 (2) of the Drainage Act provides as follows:
"Section 106 (2) - Subject to section 101, the referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purpose may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal."
Therefore the Drainage Referee is empowered to hear any appeal from the Drainage Tribunal dealing with the issue of costs.
The Tribunal made the following observations with respect to the evidence.
"The Tribunal examined the evidence. Since the decision of the Referee was referred to several times during the hearing it is deemed appropriate to set out the essential parts of that order. The order of the Referee dated August 31, 2000 provides:
That the Township of Mariposa be restrained from undertaking any maintenance on the Short Drain other than maintenance commencing at Station 160+00 up to Station 69+50 which maintenance shall not lower the grade below that as defined in the H. G. Gibson Report dated May of 1978. The cost of all such maintenance work shall be paid as in the normal course by upstream owners.
That the Township of Mariposa appoint a Drainage Engineer pursuant to Section 78 of the Drainage Act R.S.O. 1990, Chapter D17 to prepare a Report for the maintenance and improvement of the Short Municipal Drain, including the preparation of a new maintenance schedule. All regular procedures as provided in the Drainage Act shall be adhered to.
That legal costs be awarded to the Applicant fixed in the sum of $3,000.00 payable forthwith by the Respondent Municipality but recoverable by the Respondent Municipality as part of the cost of the preparation of the new Report.
The Tribunal examined the report of Mr. Dries. It would have been helpful if Mr. Dries had been available to be questioned on his report but since he was not there the Tribunal accepted the evidence based on a plain reading of the report. The Tribunal is unable to find in the report anything which says that Mr. Dries is of the opinion that the Short Drain was not taken to a sufficient outlet in l978 nor does the report say that the Short Drain does not provide a sufficient outlet for the Short Drain Branches A and B. The evidence of Mr. Pridham, a professional engineer with many years of experience in the field, is that the Short Drain does provide a sufficient outlet for the proposed work. The Tribunal agrees with Mr. Pridham that the work covered in the report is of a minor nature. If, as Mr. Courey suggests, the report on the Short Drain finds that the Short Drain outlet needs improvement or an allowance should be paid for insufficient outlet, then the land in the watershed of the Short Drain Branches A and B will be in no different situation after the proposed work than it is in today's conditions. The Tribunal rejects the proposition that the work on the branch drains ought to be held in abeyance pending implementation of a report not yet commissioned on the main drain.
The Tribunal agrees with Mr. Swain's submissions on the appeals. The appellants brought no cogent evidence to the hearing to support their contention that the work was not cost beneficial, that the allowances were excessive or that the work should be modified. The Tribunal dismisses these appeals.
Were these appeals properly brought by downstream owners? It was clear from the evidence that some of the appellants were a very long way downstream from the watershed of the A and B Branches of the Short Drain. The watershed for Branches A and B is highlighted. The names of the appellants are also highlighted.
The wording of Section 48 "any owner of land or any public utility affected by a drainage works" appears to imply a financial connection to the project. It is clear that a long-term tenant would be affected by the project, but a long term tenant is not given a right to appeal. On the other hand, if a substantial connection to the proposed work can be shown by a downstream owner, then it appears that under some conditions the downstream owner should be able to appeal to the Tribunal. There are obviously restrictions on this; for instance, the issue of compensation or allowances should not be open to challenge by a person who is not assessed in the report.
It appears to the Tribunal that downstream from the area covered by the report an owner must demonstrate a substantial connection to the proposed work in order to come within the definition of "affected owner". It is not enough to say: I am downstream, therefore I am affected. The burden is on the owner to demonstrate the substantial connection.
Where an appeal is filed by a downstream owner, the Tribunal will accept the appeal as an administrative action. However, any of the assessed owners or the Municipality would be at liberty to bring a timely motion to have the appeal dismissed on the grounds that the appeal is a nullity, and the Tribunal would make a determination on that point. It is unlikely that a motion brought at the last minute would be successful.
In this case, the downstream owners did not bring evidence to satisfy the Tribunal that they are "affected owners" within the intent of s.48.
However, even in cases where downstream owners are properly before the Tribunal, the issue of costs arises. In the usual course the assessed owners bear the costs of the entire project, including the costs of appeals to the Tribunal. It is not appropriate that non-assessed parties (successful or not) should cause an expense to the project without participating in some of the expense. The engineer's report defines the drainage community in which rights and obligations are shared and an appellant from the outside, in effect coming into this community, should share in the costs. In this instance the Tribunal does not need to consider to what extent successful appellants should share in the costs, since in this case all of the appeals are being dismissed.
All of the appellants signed a very similar notice of appeal. Except for Doris Chidley they were represented by able counsel at the hearing. They had been informed by the municipality that their position that the drain was not taken to a sufficient outlet would be contested at the hearing and they should be prepared to bring expert or "hard" evidence in support of their contentions.
The Tribunal procedure is that appellants are requested to file an appellant statement. Appellant statements are not designed to restrict appellants evidence or arguments but are to assist in the conduct of the hearing and thereby reduce the costs to all parties. When there is no appellant statement, the engineer must prepare for all issues raised in the notice of appeal. In this case only one appellant provided an appellant statement to assist the municipality in preparing for the hearing.
The appellants had no tenable case on the issues specified in the notices of appeal. The Tribunal agrees that the main thrust of the appellants' arguments and evidence was to obstruct the municipality, delay and hopefully prevent the work. In doing so the appellants caused considerable additional costs to be incurred.
Branches A & B of the Short Drain are established, existing municipal drains. The municipality has a statutory duty to maintain them. In this case the maintenance could only be done by way of a report. Stripped to its essentials, the appellants were attempting to prevent the municipality from performing its statutory duty of maintaining these municipal drains.
The Tribunal notes that the Chidley appeal was withdrawn on September 8, 2000, only four days before the hearing. The withdrawal of the appeal at such a late date does not eliminate but does reduce the cost exposure. The Tribunal is not in a position to make any other distinctions among the remaining appellants.
Sometimes even unsuccessful appeal provide some benefit to the projects and the Tribunal takes that into account in considering cost awards. In this case the appeals have brought no benefit to the project.
The Tribunal agrees with Mr. Courey's submissions that no costs should be awarded to Mr. Turville's clients. This is because the Township was adequately representing the interests of the proponents of the work. In regard to the engineering and legal costs of the Township for the appeal, the Tribunal accepts the estimates of $3,500.00 for engineering work and $2,500.00 for legal representation to cover the costs of preparation and attendance at the hearing. The Tribunal also notes that the wording of s.98 of the Act appears broad enough to provide for an award of costs in respect of the Tribunal's costs.
The Tribunal is of the view that justice would be done in this case if the sum of $4,000 was recovered from the appellants."
Mr. Courey provide the Drainage Referee with the testimony of Mr. Carl King. Mr. King presented evidence on behalf of the Appellant. Mr. King stated that there was an insufficient outlet downstream of the Campbell property and that accordingly each year the Campbell property was adversely flooded. He stated that the Drainage Engineers, John Kuntze, P.Eng., and Ed Dries, P.Eng. had testified in previous hearings on the public record that the Short Municipal Drain had insufficient outlet. He referred to the Decision of the Drainage Referee dated August 31, 2000 which provided for a Section 78 Report with respect to the Short Municipal Drain, which Order he suggested confirmed that the Short Drain had an insufficient outlet. He further advised that because the profiles of both of the Branches of the Short Drain were now below the Grade Level of the 1978 Drainage Report that increased velocity of flow would result in the Short Municipal Drain causing further injury to the lands of Mr. Campbell.
Mr. King advised that he had attended at the previous hearing before the Drainage Tribunal and had noted that the Drainage Tribunal had not permitted oral evidence or indeed submissions to be made to Council with respect to a motion to adjourn the proceedings. He maintained that this deprived the Appellant of the privilege of a full hearing on the Motion and of the opportunity to withdraw the Appeal as a result of the Decision on the Motion. Mr. King concluded his testimony by stating that the culvert under the road permitted Christopher Dale's property to be drained into the municipal drain, but that it was some distance up the road and required the water to be conveyed to the drain by the road ditch.
Mr. Courey made the following submissions:
He first argued that his client had been denied a fair hearing with respect to the Preliminary Motion made on September 12, 2000 at the commencement of the Drainage Tribunal Hearing. In that motion he had requested an adjournment until such time as the Section 78 Report on the Short Drain was completed. He advised that the fact that he was not able to introduce oral evidence and make legal submissions resulted in the denial of natural justice. He stated that it was unfair to suggest that he had not brought the Motion in a timely fashion inasmuch as he had done so within four (4) working days after the Order of the Ontario Drainage Referee calling for a Section 78 Report on the Short Drain had been published. He was of the opinion that this had greatly prejudiced his client inasmuch as his client was not afforded an adequate opportunity to withdraw the full Appeal subsequent to the Decision with respect to the motion.
Mr. Courey went on to argue that it was very reasonable for his client to appeal the Report with respect to the Short Drain Branches A and B for the following reasons:
(a) There was insufficient outlet downstream of Mr. Campbell's property which resulted in repeated flooding of the Campbell property. This insufficiency of outlet had been confirmed not only by John Kuntze, P.Eng. and Ed Dries, P.Eng., but by the Order of the Drainage Referee referred to previously for a Section 78 Report and by previous Decisions of the Tribunal on eproviding for an injuring liability award to Mr. Campbell.
(b) In addition, there was clear evidence that the Short Drain had been excavated below the original grade lines of the 1978 Gibson Report, and that the respective Drainage Report indicated the same was true of Branches A and B. If such was the case, he argued, Mr. Campbell was burdened by the flooding caused by drains with capacity in excess of the specifications contained in the original Reports. This increased velocity of flow had never been reviewed by the process of a regular Drainage Report because it resulted from work of repair not improvement.
(c) Mr. Courey pointed to comments acknowledging insufficiency of outlet made by the Engineer, Tom Pridham contained in the Decision of the Drainage Tribunal, namely "it is his professional opinion that the work will have no adverse impact on downstream owners and no additional injury will be created by this work..." While the outlet to the Short Drain may be impaired the Short Drain does provide sufficient outlet for the Short Drain Branches A and B in his professional opinion."
With respect to Christopher Dale, Mr. Courey argued that inasmuch as Mr. Dale did not have direct access to the Drain, he had good cause to challenge the Report. Mr. Courey argued that the Municipality could at any time unilaterally deny Mr. Dale the privilege of using the Municipal ditch to transfer his water from his outlet into the Municipal Drain. Thus, he argued, he had good cause to appeal the Report on the basis that it did not provide him with a legal outlet.
Mr. Courey concluded by maintaining that the total award of costs in the sum of $4,000.00 amounted to a punitive award. He noted that it was the usual practice of the Drainage Tribunal not to award burdensome costs and therefore this was an uncustomarily high award calculated to punish. He indicated that the Hearing took less than one full day and involved no preliminary proceedings.
Mr. Swain, in his submissions, stated that the Drainage Tribunal had found that the Appellants provided no significant evidence to support a Section 48 Appeal. Mr. Swain pointed out that the position of Mr. Campbell was at all times ambivalent with respect to whether or not he wanted to have a sufficient outlet downstream of his property. He stated that it was available to Mr. Campbell to petition Council at any time for a Section 78 Report and that he had not done so. Mr. Swain further pointed out that there were excellent farmers such as Mr. Parker, who wished to have adequate outlets for their drainage so that they could carry on their agricultural practices in an efficient manner. He further suggested that Mr. Campbell had been invited to bring professional evidence to the Hearing, but he had not done so. Mr. Swain concluded by saying that this Appeal, like the previous Appeal, had resulted in further costs and delays and he requested that an award of costs be made in favour of the Municipality against the Appellants.
The Drainage Referee recognizes that this particular drain has more historical baggage than possibly any other Drain in the Province. The Short Drain is characterized by some special features. There is a group of upstream farmers, highly professional in their farming activities who seek the rightful privilege through the medium of the Drainage Act to obtain a proper outlet for standard agricultural drainage. In addition you have several downstream farmers who believe they may suffer flooding from continued upstream improvement. The Appellant, Colin Campbell, has historically been proven to be a flood victim. In addition, this Drain has attracted the attention of various agencies, both Provincial and Federal, concerned with preservation of the habitat. All these factors have compounded to make drainage issues very sensitive and have imposed on the Municipal Administration a burden not common to most drainage projects.
Within the vortex of all the above mentioned conflicting interests, the drainage process is challenged to find a satisfactory resolution suitable to all. It is my opinion that the Drainage Act is up to the challenge and is capable of addressing all the conflicting issues in a satisfactory manner. The Drainage Act is a historic document and has survived largely unchanged through the decades adjusting to technological changes over the years without the need for radical amendment. This is because there are four cornerstones on which the Drainage Act rests, namely:
(a) It is enabling legislation that permits a single landowner (farmer) who is a minority landowner, often downstream, to compel his or her upstream neighbors to assist in a drainage project for which they must pay their fair share of the cost to relieve him or her of the burden of their unwanted water. The farmer may be outvoted by his or her neighbours, unsupported by municipal council, but by means of the various appeals which is the genius of the Drainage Act he or she has the instrument to affect drainage schemes because his or her land is "the area requiring drainage".
(b) The second essential cornerstone of the Drainage Act is the requirement for a professional Drainage Engineer. The Act requires that all schemes be designed by a professional Engineer and the financial burden of this requirement is relieved by the l/3 Provincial Government Grant.
Such critical decisions as determining the area requiring drainage, the design of the work and the assessment schedule are the prerogatives of the Drainage Engineer. A coterie of experienced and talented Drainage Engineers has ensured the integrity of Municipal Drains throughout the Province.
(c) The third cornerstone is the administration by a municipality. This provides an independent administration at the local level, traditionally without bias and with competent accounting controls. Local Councils also bring to the process an element of local knowledge that can frequently relieve undue hardship through the process of the Court of Revision, etc.
(d) The fourth building block is the Appeal Procedure. The Province has historically provided independent "decision makers" specialized in the field of drainage, who have helped to develop drainage law and procedure for a practical and cost effective system. The Act builds into the process numerous opportunities for appeal which, together with site meetings and the consideration of the Report, provide for maximum local input. The purpose is to fine tune the drainage project to suit local circumstances which are frequently unique. The appeals not only permit people to vent their strong objections, but serve the dual purpose of educating the participants so that they understand the nature of the design, the reason for the assessment, and above all the justice of the process. The fundamental historical prerequisites of judicial administration are
(a) easy access (without the complications of red tape);
(b) speedy decision making; and
(c) an inexpensive process.
Historically, the Drainage Referee for many decades fulfilled that function. For short periods of time, County Court Judges and the Municipal Board also served (but the record reveals that they did not serve with the specialized knowledge and efficiency that was required). After the 1975 Act, the legislation provided for two agencies, the Drainage Tribunal and the Drainage Referee. The first oriented to the facts and the second oriented to the law. Both are specialized and cost effective.
The historical success of the Drainage Tribunal from its creation in 1976 was its determination to keep legal costs at a very low premium and to allow landowners access without the need of lawyers. That, in my opinion, has been one of the major reasons why the Drainage Tribunal has had significant success and has been well accepted by the agricultural community in this Province.
Having regard to the above mentioned factor, I am troubled by the possibility that Mr. Campbell is being penalized for having filed an appeal. The Drainage Tribunal was entirely within its jurisdiction to dismiss his appeal and to award costs against him, but the decision appears to create the inference that the level of costs established was to discourage similar appeals.
Mr. Campbell may have been justified in appealing for the following reasons:
(a) There appeared to be a pattern of continuous drainage work upstream of Mr. Campbell's property in the A and B Branches of the Short Drain, apparently in the Fowler Drain and in the Short Drain itself which have resulted in excavations in excess of the original specifications as set out in the original Reports. This work was no doubt done with good intentions, but it is apparent that the nature of the underlying rock made precise excavation very difficult. The result of all this, no doubt, is to increase the velocity of the flows downstream.
(b) All this activity has been done with the knowledge that there is an insufficient outlet downstream of Mr. Campbell's property which has been historically recognized by the Drainage Tribunal and is currently acknowledged by several drainage engineers involved in the process. Mr. Campbell might well have to accept some responsibility for the insufficiency of that outlet as a result of the ambivalent position he has adopted previously with respect to this Drain. He is not entitled to stop upstream drainage, but if he is flooded as a result, he is entitled to be compensated in the form of injuring liability.
(c) There is another major historical interest in this project which will no doubt emerge and that is the third party interest of Government Agencies at both the Provincial and Federal level with the objective of protecting wildlife and fishing habitat. As this Drain proceeds pursuant to a Section 78 Report that group will have an opportunity to once again present their views and may succeed in arresting any effort to provide a sufficient outlet for the Short Municipal Drain with or without the help of Mr. Campbell. If they succeed, once again Mr. Campbell is entitled, if his property is flooded, to compensation in the form of injuring liability.
Thus, Mr. Campbell is caught between the interest of upstream agriculturists and downstream guardians of the environment, wildlife and fisheries, etc., both of whom have a different but legitimate agenda. Mr. Campbell, caught as he is between these competing and powerful interests, at least has the right to appeal and present his dilemma in every possible forum.
In my experience, I have never encountered a drain with greater potential difficulty. It was because of this drain in times past that the whole Drainage Act process was challenged by powerful groups in the Province which groups regarded it as a threat to the interests they were determined to protect. Thus any decision with respect to the Mariposa Drain must be made with great caution, having regard to historical factors. I anticipate that the development of the Section 78 Report will not go without significant interventions.
However, notwithstanding the above comments, I am loathe to interfere with the Decision of the Drainage Tribunal in such a discretionary area as the awarding of costs. This view is reinforced by the fact that I did not have the advantage of a transcript of the proceedings, being obliged therefore to rely only upon the Reasons for Decision of the Tribunal and limited affidavit evidence. Accordingly, I find it necessary to dismiss the Appeal of Mr. Campbell.
With respect to the appeal of Mr. Dale, I have no alternative but to dismiss his appeal having received even less evidence upon which I could rely.
With respect to the matter of costs, in all the circumstances I am not inclined to award costs to either party and therefore each party will be responsible for his or its own costs.
DATED: October 20, 2000
Delbert A. O'Brien, Q.C.
Ontario Drainage Referee