ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
King&York v. Brad West Gwillimbury (Town)
2000 ONDR 6
DATE OF DECISION:
2000-07-18
2000-06
STATUTE:
HEARING:
BETWEEN:
2000-08 -23
THE CORPORATION OF THE TOWNSHIP OF KING AND THE REGIONAL MUNICIPALITY OF YORK APPLICANTS
-AND-
THE CORPORATION OF THE TOWN OF BRADFORD-WEST GWILLIMBURY COUNCIL OF THE COUNTY OF SIMCOE TOWN OF TECUMSETH MUNICIPALITY OF PEEL TOWNSHIP OF KING CORPORATION OF THE TOWN OF EAST GWILLIMBURY CORPORATION OF THE TOWN OF NEWMARKET CORPORATION OF THE TOWN OF CALEDON RESPONDENTS
D E C I S I O N
The Application was heard by the Ontario Drainage Referee on the 23rd day of August 2000 in the Superior Court, Barrie, Ontario. The Referee delayed issuing a decision at the request of Counsel pending settlement discussions until he received a request on June 11, 2000 to release the decision. The Motion was for:
“ l. An Order setting aside the ex-parte order of the Drainage Referee dated March 12, 1998;
Costs of the Motion on a solicitor and client basis;
Such further and other relief as Counsel may advice and the Drainage Referee may permit.”
The ex-parte Order of the Drainage Referee dated March 12, 1998 read as follows:
“ ORDER
This motion made by the Town of Bradford-West Gwillimbury for certain declaratory relief, made without notice, was heard this day at Pembroke, Ontario.
ON READING the Affidavit of Joseph Marra:
THIS COURT ORDERS that this Motion is properly before this Court, without Notice.
THIS COURT ORDERS that the municipalities named in paragraph one (1) of the Affidavit of Joseph Marra are the proper respondents in this matter.
THIS COURT ORDERS that the Moving Party shall, within three (3) days of receipt of this Order, serve by registered mail upon each of the respondents, to the attention of the Clerk of the municipality, a copy of the Motion Record, this Order and an explanatory letter. Service shall be deemed effective five (5) days after mailing.
THIS COURT ORDERS that the procedure to be followed in this matter shall be as set out in Exhibit “A” to the Affidavit of Joseph Marra.
THIS COURT ORDERS that the Applicant shall cause its Engineer and counsel to serve upon each of the Respondents, or their counsel, within three (3) days of the date of receipt of this Order, a concise written summary of the work proposed and the cost of it and a map showing the approximate area proposed to be assessed.
THIS COURT ORDERS that any of the Respondents may require the Engineer to attend for examination for discovery in this matter, but he shall only be liable to be examined once and the examination shall be completed within thirty (30) days of the date of this Order.
THIS COURT ORDERS that any party may cause the return of this Motion for a hearing on terms as may be agreed or Ordered.
THIS COURT ORDERS that the questions to be determined by the Referee on the return of the Motion are:
(a) Are the lands upstream of the canals in the Holland Marsh Drainage Scheme properly liable for assessment for works of repair and improvement on the canals as is proposed by the Applicant?
(b) Are upstream lands which are riparian lands distinguishable from those which are not, for the purposes of assessment?
- THIS COURT ORDERS that the balance of the relief sought is adjourned sine die returnable on seven (7) days notice. “
ISSUES TO BE DETERMINED (as defined by the Appellants)
(a) Should the above mentioned Order of the Drainage Referee be set aside on the basis that the Referee does not have jurisdiction to make an ex parte Order.
(b) If the Drainage Referee has the power to make an ex parte Order should he have exercised it in the circumstances of this case, having regard to the evidence emergency or impracticality in notifying parties.
The facts in this case can be simply stated. On December 19 1997 Counsel for the Town of Bradford-West Gwillimbury made a Motion in the Court of the Ontario Drainage Referee for an Order amongst other matters, abridging any requirements for service of the Motion. (the above mentioned order is sent out above)
No notice was given of this motion to the municipalities affected. The affidavit of Joseph Marra accompanying the said motion did not set forth any evidence relating to the issue of notice, save and except the following statement
“that because of the very large area affected, and because significant legal issues need to be determined, it is not cost effective to prepare a report, an assessment schedule and to entertain appeals in the usual manner; “
The motion was made in writing, pursuant to Rule 37.12.1 (1) of the Rules of Civil Procedure and no oral argument was heard with respect to the issue of notice. The Referee executed the order on March 12, 1998 in the form requested by the Moving Party and the municipalities were notified of the Order by registered mail. Appearances were subsequently filed by the affected municipalities.
Mr. Courey, solicitor for the Applicant, describes the notice as being “in the form of an originating notice dealing only with procedural matters rather than substantive issues”. He advised that the municipalities preferred an opportunity to move to have the action discontinued as against any of them, but none of the parties had acted within the period exceeding one (1) year. Mr. Courey stated that scheduling procedural matters was particularly difficult because of the nine parties involved and because of the shortage of courtroom availability.
Josephine Matera, Counsel for the Township of King and the Corporation of the Township of East Gwillimbury made the following representations with respect to issues of law. She argued that all proceedings before the Drainage Referee were subject to the Statutory Powers of Procedure Act, R.S.O. 1990, c. S 22 and secondly that all matters before the Referee are subject to the Rules of Practice and Procedure to be followed in all proceedings before the Referee. Drainage Act, R.S.O. 1990, c. D17, s S107 Regulation 275.
She submitted that the Rules of Civil Procedure were not applicable to the Drainage Referee, but could be invoked where the Referee determines they are appropriate as is the case with the practice of the Ontario Municipal Board, 1990 R.R.O. Regulation 889.
Ms. Matera referred to Section 6 of the Statutory Powers of Procedure Act, which she set forth as follows:
“6.1 - The parties to a proceeding shall be given a reasonable notice of the Hearing by the Tribunal “
She also referred to Section 29 of the Rules which reads as follows:
“29. - Unless the Referee otherwise orders, there shall be at least seven clear days between the service of a notice of a motion and a day for hearing.”
That Section, she argued, provided authority to abridge time for giving notice but not authority to dispense with notice entirely.
Counsel referred to Section 107 of the Drainage Act which reads:
“ (1) the referee may, with the approval of the Lieutenant Governor in Council, make rules regulating the practice and procedure to be followed in all proceedings before him under this Act and may prescribe tariffs and fees therefor;
(2) the referee may give directions relating to the conduct of proceedings before him or her and as to the persons who shall be parties to such proceedings.”
Counsel argued that Section 107, although very broad, did not provide authority to dispense with notice entirely.
Kelly G. Yerxa, Counsel for the Regional Municipality of York, continued with submissions on behalf of the Applicants by stating that in the alternative that even if the Referee had the authority to make an order based on a motion without notice that the motion must have been made without notice on the basis of urgency or because it was impractical or impossible to notify the affected parties. She argued that there was no evidence found in the motion record of the Town or specifically in the affidavit of Joseph Marra to justify or approve that the ex parte order was required on an emergency or urgent basis. Further, she argued there was no evidence found in either the motion record or affidavit to prove it was impossible or impractical to notify the affected parties. She advised that it was now evident that the Applicant could have served the Respondent Municipalities by mail, by facsimile transmission or by personal service.
Finally she argued that the Referee was authorized to review and set aside his Decision on the basis of irregularity by Section 25 of Regulation 275.
“25. Non-compliance with these Rules shall not nullify any notice or any other proceeding unless the referee otherwise directs, but any notice or any other proceedings may be set aside by the referee either wholly or in part as irregular. R.R.O. 1980, Reg. 247, s.25.”
Ms. Yerxa concluded her submissions by requesting that the Order be set aside and the costs of the motion be awarded on a solicitor and client basis.
Nadia Koltun, Counsel for the Corporation of the Town of Caledon, continued the submissions by indicating that she adopted the position taken by the previous Applicants. She indicated this matter ought not to have proceeded by way of an ex parte motion, but rather by a motion seeking directions under the Drainage Act. She argued that the Referee had ample authority, pursuant to Section 106 and Section 107 of the Drainage Act to give directions with respect to procedures to be followed and to join such parties as the Court saw fit. She argued that an application ought to be made with notice to the affected municipalities granting them thirty (30) days to make an appearance and a further period of time to make submissions as to the proper parties and procedure to be followed.
Ms. Koltun further objected to the use of the Municipalities as agents for the property owners and suggested that some form of proper notice be given to land owners by publication or through the form of public meetings, etc.
She further objected to the arguments made by the Respondent with respect to
estoppel advising that the municipalities had co-operated in an effort to have matters moved along and in particular with respect to seeking government funding, therefore it was proper to suggest that they acquiesced.
At the conclusion of her remarks she affirmed her support for the position taken by the Applicants, namely the Corporation of the Township of King, the Regional Municipality of York and the Town of East Gwillimbury and requested the same relief.
Mr. John S. Rogers, Counsel for the Corporation of the Town of Newmarket, and William D. Turville, Counsel for the Corporation of the Town of Tecumseth, both supported the motion of York and East Gwillimbury and requested the same relief.
The Respondent Solicitor, Paul Courey, argued that the ex parte motion brought by Bradford was an originating process and not subject to the Statutory Powers of Procedure Act. He further argued that the Referee’s power to set procedure was provided by Section 107 of the Drainage Act. He further advised the Referee
(sounds like vary the demand) for notice and limited the amount of the variation as provided in Regulation 275 s 29 and s 30 pursuant to the Drainage Act. He further argued that the Drainage Referee was not restricted in referring to the Rules of Civil Procedure in circumstances that were appropriate. He argued that it was appropriate that the Referee have regard to the Rules of Civil Procedure by analogy because of the following:
(a) the Referee must be a Judge of the Superior Court of Justice or a Barrister at the Bar of Ontario with ten years’ standing;
(b) the Referee is a judicial officer barred from acting as counsel, agent or advisor on any matter under the Drainage Act;
(c) the powers of the Referee are similar to those of a Judge of the Superior Court of Justice;
(d) the Referee is empowered to require the assistance of court officers;
(e) the Referee may set costs or direct assessments of costs by an assessment officer of the Superior Court of Justice and may utilize the tariff of the appropriate court of competent jurisdiction for similar proceedings.
Mr. Courey went on to argue that because the Motion was brought simply to initiate proceedings and not to determine any substantive right that it was not an issue as to whether or not urgency or inability to serve formed the basis for justifying the ex-parte nature of the proceedings. Mr. Courey further argued that the Respondents attorned to the jurisdiction of the Referee by filing Notices of Appearance and not moving to set aside the Order, once served. Mr. Courey concluded his argument by saying that the Respondents are now estopped from moving to set aside the Order because of their conduct, silence, delay and acquiescence.
Mr. Courey stated that the Township of King had acquiesced in the decision to bring the Motion in the first instance. He advised that the Township of King appointed members to Committee which makes recommendations to Bradford, the initiating Municipality, and that the Township of King has notice of these recommendations from reports of its members and the minutes of the meetings. He suggested there was no evidence that the Township of King objected in any way to the recommendation made to Bradford to initiate proceedings in the manner in which it did. Mr. Courey argued that inasmuch as the application was only brought by the Township of King, the Region of York and the Town of East Gwillimbury, that the Order as issued should stand as against the other parties.
Finally Mr. Courey argued that to grant the relief requested would have no other effect than to cause delay and expense because the motion could be once again made on notice with the effect that the same arguments be repeated once again or Bradford could apply to the Drainage Tribunal under Section 76 and in all probability the Tribunal would refer the matter to the Referee to proceed on a point of law.
Mr. Courey concluded by requesting the Motion to Set Aside the ex parte Order be dismissed with costs.
In reply Ms. Matera for the Applicants argued that the law of estoppel had no application in the circumstances of this case because the joint Holland Marsh Drainage Committee made only recommendations and all final decisions would have to be referred back to Council. She pointed out that the Township of King resolution of April 7 1997 to appoint Ken Smart, P.Eng. to prepare a preliminary report required that any final decision would have to be referred back to Council. The role of the joint committee was merely to recommend, not to decide and the evidence did not show that the Council of King had knowledge or approved the steps taken by Bradford leading up to the making of the ex parte order. Counsel referred to the case of the City of Niagara Falls v Township of Niagara, 1966 CanLII 291 (ON HCJ), 1967 1 O.R. 96 where Judge Clunis, the acting Drainage Referee, ruled
“The fact that both parties agree to a procedure order providing for a trial of an issue does not deprive the defendant the right to move against the statement of claim served pursuant to the order on the ground that it discloses no cause of action. It is only after the statement of claim is served that the defendant is in a position to know the real complaint against it.”
Consequently, Counsel for the Township of King argued that any acquiescence in procedural matters preliminary to bringing the application to have the ex-parte order dismissed did not limit the right of the applicant to seek a motion of dismissal.
In reply to Mr. Courey’s argument that he had proceeded by way of originating notice, Ms. Matera indicated that Rules 2 and 3 of Regulation 275 set out the Rules of Practice to be followed before the Drainage Referee. In this case the proper form was not followed as set out in the Rules which form provided for fifteen (15) days’ notice. In fact it was argued that this motion was a hybrid motion - part originating motion and part procedure. Section 15 of the Rules of Procedure, Regulation 275 set out the procedure to be followed with respect to procedural motions including the requirement of seven (7) days’ notice.
Ms. Matera submitted that it was open to the Drainage Referee to look to the Rules of Civil Procedure for guidance, but that the Drainage Act and Regulation 275 clearly empowered the Court of the Drainage Referee to be “master of its own procedure”. However, in every case the Court of the Drainage Referee is limited to the restrictions imposed by the Statutory Powers and Procedures Act in some form of notice is required. Mr. Matera concluded by endorsing the comments of Ms. Koltun with respect to how the matter might proceed in the future pursuant to a motion seeking directions, etc. Ms. Matera wished to endorse the submissions of Ms. Koltun and does not object to being here representing the municipality, but objects to appearing on a representative capacity for other landowners.
Ms. Yerxa, speaking for the Regional Municipality of York in reply stated that it was not clear whether the Town was proceeding pursuant to Section 76 of the Drainage Act. She indicated the April resolution in 1987 referred explicitly to Section 78. The procedure, pursuant to Section 78 is a very different procedure to be followed than Section 76. The Section 78 procedure would require notice to all parties. She advised that pursuant to Section 76 there was a problem with respect to who received notice, e.g. was notice required to be sent to the upper municipalities. She did not believe this matter should proceed pursuant to Section 76.
Having reviewed the evidence and considered the submissions made by Counsel the Referee concluded that the Motion should succeed and accordingly set aside the ex-parte motion of March 12, 1998.
The grounds for the Decision of the Referee are as follows:
(a) The Referee agreed with the submissions made by the Counsel for the Applicants and in the circumstances of this case there was no evidence or at least in any event, not sufficient evidence to indicate that there was an emergency that warranted immediate action such as to justify an ex-parte motion. Such a conclusion is justified by an examination of subsequent events.
(b) The Court also agrees that there was not a demonstrated need to dispense with notice because of practical difficulties in providing notice and agreeing with the submissions of Ms. Koltun to the effect that notice could have been given by alternate means such as publication, etc.
Having decided to set the motion aside on account of the aforesaid reasons, it was not necessary for the Referee to decide many of the other issues raised by Counsel, including the issue as to whether or not the Referee had jurisdiction to grant an ex-parte motion. The powers granted to the Referee by the Drainage Act provide very broad authority with respect to procedure and the abridgement of time for notice and on occasion the Referee is confronted with very urgent problems which require immediate action. However, in the present circumstances that issue does not require determination.
With respect to the issue raised by the Respondent, namely the matter of estoppel, the Referee is not satisfied on the evidence that there was sufficient evidence to permit the defence of the estoppel at this Hearing. There is some grounds to support the belief of Counsel for the Respondent that he was proceeding with the implied support of the Township of King etc., but the inferences were tenuous and subsequent events clearly indicated that such a belief was mistaken. In any event, the Applicants’ right to challenge an order improperly granted continues at law unfettered.
City of Niagara Falls v. Township of Niagara 1966 CanLII 291 (ON HCJ), 1967 1 O.R. 96
The submissions of Counsel for the Town of Caledon, Ms. Koltun, both of which were adopted by Counsel supporting the application, were both positive and helpful. She suggested that the Drainage Act provided ample authority for the Town of Bradford-West Gwillimbury to proceed by way of a motion with notice to the affected municipalities seeking procedural directions and receiving and providing for submissions with respect to procedures to be adopted with respect to upland land owners, etc.
The Referee, in general terms, agrees with the submissions made by Ms. Koultun and would be prepared to entertain such a motion so as to allow this matter to proceed.
With respect to the issue of costs, the Referee is prepared to hear submissions at a time and place agreed to by counsel which need not be the Court House in Barrie, Ontario, but if parties agree at a site convenient to Counsel.
DATED: July 18 2000
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee