THE CORPORATION OF THE MUNICIPALITY OF BLUEWATER

Applicant

‑and-

THE CORPORATION OF THE MUNICIPALITY OF SOUTH HURON, THE CORPORATION OF THE TOWNSHIP OF WEST PERTH, THE CORPORATION OF THE TOWNSHIP OF NORTH MIDDLESEX, THE CORPORATION OF THE TOWNSHIP OF LAMBTON SHORES, THE AUSABLE BAYFIELD CONSERVATION AUTHORITY, STANTEC CONSULTING INC., BERT VISSCHER, LEN VERI, JIM NEIL, JAMES VERI, MICHAEL VERI, LYNN VERI, CATHERINE (KATE) FLETCHER, WALLACE FLETCHER, JACK GLAVIN, ROSS BEAVER, MARGARET BEAVER, MICHAEL BEAVER, GERALD WEBB, DONALD BENDER, WILLIAM MARKLE, SHEILA MARKET, FREDERICK CULBERT, STEPHEN KENDAL and NANCY KENDAL

Respondents

Andrew Wright Solicitor for the Applicant

Paul Brooks and Ottavio Colosimo Counsel for Len Veri and others

Robert Hughes, P.Eng. Agent for Stantec Consulting Inc.

D E C I S I O N

The Ontario Drainage Referee attended at the Court House in Goderich, on Friday, the 26th day of October, 2001 for a Pre Hearing Conference, convened pursuant to a Preliminary Procedural Order issued October 3, 2001. At the Pre‑Trial Conference, Counsel for the Municipality advised that the proposed Ausable Municipal Drain was so unique in many of its aspects that the standard procedure as provided in the Drainage Act for the development of a drainage works could not reasonably be followed. Briefly the unique features of this Drain consisted of (a) size of the watershed extending to approximately 85,000 acres; (b) anticipated cost of the work, approaching one half million dollars with major cost benefit considerations; (c) environmentally sensitive area involved with the Conservation Authority requesting party status; (d) multiple municipalities as disclosed in the style of clause; (e) an appointed engineering firm refusing to proceed with the project; (f) incurred engineering costs exceeding $30,000.00; (g) uncertainty as to the area requiring drainage; (h) uncertainty as to the validity of the Petition.

Confronted with these multiple issues, the Municipality engaged Andrew Wright, a Drainage Legal Specialist to assist them in this complex process. Andrew Wright, at the pre‑hearing conference advised that he was of the opinion that the circumstances of this case demanded that certain issues be settled early in the proceedings so as to ensure maximum efficiency of effort and minimum costs. He therefore proposed that the following procedural order be entered into dealing with the special requirements of notice so as to inform participants of the issues to be addressed at the Hearing. Mr. Wright was supported in his application by Paul Brooks, Counsel for the Veri Family and by Robert Hughes, representing the Engineering Firm of Stantec Consulting Inc.

The Procedural Order was well crafted by Mr. Wright and provides an excellent precedent for matters of similar scope and is therefore set out by the Referee in full.

STYLE OF CAUSE

PROCEDURAL ORDER

Appearances:

Andrew Wright counsel for the Applicant

Paul Brooks counsel for Len Veri and others

Robert Hughes, P.Eng. agent for Stantec Consulting Inc.

Notice of the Pre‑hearing Conference was given in accordance with the Preliminary Procedural Order issued on October 3rd, 2001. The Pre‑hearing Conference convened at the Court House in Goderich at 10:00 a.m. on Friday, October 2nd, 2001.
The purpose of the Pre‑hearing Conference was to deal with preliminary and procedural matters, including the identification of parties, the identification of issues, the starting date of the hearing and the duration of the hearing.

Parties

The parties to the hearing are

the Applicant, the Corporation of the Municipality of Bluewater,

Len Veri and others as represented by Mr. Brooks, and

Stantec Consulting Inc.

Others may seek party status at the commencement of the hearing on Thursday, January 24th 2002. To seek party status at that time, written notice of intention so to do shall be delivered during normal business hours, to The Corporation of the Municipality of Bluewater offices located at 14 Mill Street in Zurich, Ontario. Such notice shall include a statement of the interest to be represented and an address for service.
If such a notice is delivered to The Corporation of the Municipality of Bluewater, counsel for the Applicant shall forthwith file such notice with the Clerk to the Superior Court of Justice in Goderich and provide copies thereof to the Ontario Drainage Referee, to counsel for Mr. Veri and to Stantec Consulting Inc.

Hearing

The hearing of this Motion will be held at the County Court House in Goderich.
The hearing will commence at 10:00 on Thursday, January 24th, 2002 and will continue on Friday, January 25th, and then on Thursday, January 31st and Friday, February 1st, 2002, if required.
These dates were set having regard for Mr. Hughes’ advice as to the availability of Mr. Philip McNeely, P.Eng. the engineer who will defend the validity of the petition in question in this proceeding. Counsel for the Applicant raised the matter of a subpoena for Mr. McNeely; however, in the circumstances of Mr. Hughes’ advice as to Mr. McNeely’s availability, there will be no need for a subpoena.
The Applicant will give notice of the hearing on or before Friday, November 23rd, 2001 in the following manner:

(a) a copy of this Procedural Order shall be delivered to the municipalities named as respondents in this proceeding at their respective municipal offices.

(b) a copy of this Procedural Order shall be delivered to the conservation authority named as a respondent in this proceeding at its principal office.

(c) a copy of this Procedural Order shall be delivered to Stantec Consulting Inc. at Suite 800, 1717 Queen’s Avenue in the City of London.

(d) a copy of this Procedural Order shall be delivered to Mr. Paul Brooks, Lerner & Associates, at the offices of that law firm at 80 Dufferin Avenue in London, and

(e) a copy of this Procedural Order shall be mailed to all of the other respondents named in this proceeding, by pre-paid first class post, to their respective addresses appearing in Schedule “A” attached to this Procedural Order.

In addition, a Notice of Hearing, in substantially the form attached as Schedule “B” to this Procedural Order, shall be published in one or more newspapers having general circulation in the municipalities named as respondents in this proceeding on one occasion before Sunday November 25th 2001.
A copy of this Procedural Order, together with the Applicant’s formal Notice of Motion and the supporting affidavit of Janisse Zimmerman, will be made available for inspection by the public during normal business hours at the offices of The Corporation of the Municipality of Bluewater located at 14 Mill Street in Zurich, Ontario.

Issues

The following issues have been identified:

(a) In connection with the petition received by the Applicant on January 15, 1999 with respect to the proposed Ausable River Municipal Drain, is the “area requiring drainage” appropriate for the purposes of determining the validity of that petition? This “area requiring drainage” is identified in the May 11th, 1998 engineer’s letter to the Township of Hay which appears under Tab 4 to the affidavit filed in support of the Motion.

(b) What is the appropriate method of computing a majority for the purposes of clause 4 (1) (a) of the Drainage Act”

(c) Is the petition received by the Applicant on January 15 1999 with respect to the proposed Ausable River Municipal Drain a valid petition under section 4 of the Drainage Act?

(d) If the petition is valid, as between the drainage project and Stantec Consulting Inc. who should bear the Applicant’s costs of this proceeding, and in what proportion?

(e) If the petition is not valid, as between the Applicant, those that signed the first petition received by the Applicant on August 29th, 1996, those that signed the second petition received by the Applicant on August 10th 1998, those that signed the third petition received by the Applicant on January 15, 1999 and Stantec Consulting Inc. who should bear the costs incurred to date in connection with the proposed Ausable River Municipal Drain project, including the Applicant’s costs of this proceeding and in what proportion?

(f) How should the costs of other parties to this proceeding be borne?

(g) If that third petition received by the Applicant on January 15th, 1999 is not valid, is there an opportunity to present a further petition as contemplated by subsection 9 (5) of the Drainage Act, and, if so, when does the 60 day period commence?

(h) As Stantec Consulting Inc. withdraws from the proposed Ausable River Municipal Drain project, to what extent, if at all, should Stantec Consulting Inc. refund to the Applicant amounts heretofore paid for engineering in connection with the proposed Ausable River Municipal Drain project?

(i) To what extent, if at all, should Stantec Consulting Inc. be entitled to be reimbursed for its costs of turning over to the Applicant the engineering files for the proposed Ausable River Municipal Drain project?

(j) If the proposed Ausable River Municipal Drain project is to proceed, as Stantec Consulting Inc. withdraws from the proposed project, to what extent, if at all, should Stantec Consulting Inc. be responsible to provide reimbursement for extra costs of a new engineer becoming familiar with the project?

(k) Should the Ontario Drainage Referee remain seized of this drainage project, if it is to proceed, so that he would remain available to provide opinions, direction and advice from time to time and to hear any appeals in connection with the proposed drainage project which would otherwise be made to and heard by the Agriculture Food and Rural Affairs Appeal Tribunal?

Contest of Area Requiring Drainage

Counsel for the Applicant expressed concern that the Applicant and Stantec Consulting Inc. should have advance notice of any challenge to the “area requiring drainage” for the purpose of considering the validity of the petition. This will have a significant bearing upon their preparation for and the length of the hearing.
Any person who intends to challenge the “area requiring drainage” identified in the May 11, 1998 engineer’s letter to the Township of Hay under Tab 4 to the Applicant’s supporting affidavit shall give notice to that effect. Such notice shall be in writing and shall be delivered to The Corporation of the Municipality of Bluewater at its municipal offices located at 14 Mill Street in Zurich on or before December 7th, 2001. Such notice shall provide an address for service, shall state the basis upon which the challenge will be made and shall be accompanied by a supporting affidavit sworn by a person who will appear at the hearing to give evidence in support of the challenge.
If such a notice is delivered to The Corporation of the Municipality of Bluewater, counsel for the Applicant shall forthwith file such notice with the Clerk of the Superior Court of Justice in Goderich and provide copies to the Ontario Drainage Referee, to counsel for Mr. Veri and to Stantec Consulting Inc., together with a copy of supporting affidavit material.

Stantec Files

In the context of identifying issues, counsel for the Applicant raised the matter of access to the engineering files pertaining to this proposed Ausable River Municipal Drain project and of an order directing Stantec to release to the Applicant those engineering files. Mr. Hughes undertook to produce those engineering files to the Applicant forthwith but reserved the opportunity to assert a claim at the hearing for Stantec’s costs of so doing. On the basis of Mr. Hughes’ undertaking, no order is necessary to address the issues of access to or of the transfer of possession of the engineering files.

SO ORDERS THE ONTARIO DRAINAGE REFEREE

Dated at Pembroke, Ontario Signed: D A. O’Brien

November 20, 2001”

In accordance with the terms of the above mentioned Order the Drainage Referee reconvened the Hearing of this matter on the 24th day of January 2002 in the Court House at Goderich Ontario at 10:00 a.m. The Referee was advised that the Notice had been served as provided by the terms thereof and an Affidavit was filed by the Clerk of the Municipality, Janisse Zimmerman, confirming the same. Mr. Wright advised the Referee that the matter of “the area requiring drainage” was no longer an issue inasmuch as no person had given notice of such a challenge pursuant to Clause 13, 14, and 15 of the Procedural Order. The Referee therefore ordered that the area requiring drainage as determined by the Drainage Engineer, Paul Elston, be confirmed.

Mr. Wright further requested that the Ausable Bayfield Conservation Authority, Stantec Consulting Inc. and Jim Neil a Petitioner be granted Party standing in the proceeding. The Referee accordingly ordered that the Ausable Bayfield Conservation Authority, Stantec Consulting Inc. and Jim Neil be granted Party status.

It was noted that Ottavio Colosimo, of Lerner & Associates LLP was representing the Veri Family in place of Paul Brooks.

ISSUES

The issue of the area requiring drainage having been confirmed, there was remaining three outstanding issues, namely (a) the validity of the petition; (b) determination of the apportionment of costs of the various parties in circumstances where the petition was proven to be insufficient; and (c) the matter of whether or not the Drainage Referee would remain seized of the drainage project to provide direction and advice and to hear any appeals.

HISTORY OF THE PROJECT

The initiating Municipality for the Project was the Township of Hay, which on January 1st 2001 amalgamated with the Township of Stanley, the Village of Bayfield, the Village of Hensall and the Village of Zurich to become the Municipality of Bluewater. After receiving a Drainage Petition, pursuant to Section 4 of the Act, the Township appointed the Engineering firm of Lafontaine, Cowie, Buratto & Associates Limited. Paul Elston, P.Eng., of that firm provided the Township with a reporting letter dated the 11th day of May 1998 advising the Petition dated the 29th of August 1996 was not sufficient and did not comply with Section 4 of the Drainage Act. In the same letter, Mr. Elston advised that he had made extensive field review of the area of the Ausable River as required by the Act and reported as follows:

“The first part of our work was to review the rivers condition from a point commencing upstream of the petitioned area and continuing to a point downstream of the petitioned area. The area of review was conducted by canoe and involved the examination of approximately 33 kilometres of the river from the Township Road between Concession 2 and 3 and the south boundary of the Township of Hay downstream to the Township of Stephen to Sideroad 10 in the Township of McGillvray” He went on to say that “from our river examination we determined that the most serious problems in the river appeared to exist from Lot 3 Concession 4 Township of Hay to its confluence with the Black Creek Drain on Lot 23 Concession 6 in the Township of Stephen. These problems ranged from trees, debris and beaver dams which have partially or obstructed the flows in the river, to that of a braided channel (ie. a channel without a single defined course) which cannot properly conduct even the flows that the rivers expected to carry after a minor run off event.

We point out that to provide a sufficient outlet for the area requiring drainage it is our opinion and it is necessary to extend the scope of the work to the southerly boundary of the Township of Stephen. The type of construction which we would suggest be completed for the river would include work such as clearing, brushing, removal of debris, minor areas of excavation to realign the channel and to create a more defined channel etc.

To further illustrate the magnitude of the project, it is noted that if the drainage work is undertaken to the southerly area of Stephen Township, then an upstream watershed area of 85,000 to 90,000 acres would potentially be affected either directly or indirectly.”

Mr. Elston completed his Report by stating:

“As can be seen the amount and extent of the work that has been required to advance our work to this stage of review is considerably beyond the amount and the type of work usually required in Municipal Drainage matters.”

After determining that the Petition was not sufficient, the Engineer apportioned the cost to date, namely $25,000.00 amongst the Petitioners.

In August of 1998, a second Petition was brought to the Township within the 60 days contemplated by Section 9 (5) of the Act. The Engineer reported that the second Petition was sufficient as it complied with Section 4 ( 1) (b) of the Act and that the lands represented by the signatures on the Petition represented at least 60 % of the area requiring drainage.

On October 7, 1998 before the Engineer could report with respect to the August 1998 Petition, the Town of Exeter, one of the Petitioners with a large holding in the area requiring drainage, withdrew its name from the Petition. In a letter dated October 9, 1998 the Engineer, Wayne Woods, P.Eng., reported that Exeter’s withdrawal rendered the August 1998 Petition insufficient. However, within a further 60 days a third Petition was presented and by letter dated the 19th day of January 1999, the Engineer reported that it complied with the requirements of Section 4 (1) (a) of the Act as the signatures represented a majority in the number of owners in the area requiring drainage.

In early February 1999, before a site meeting could be arranged, the Engineering firm sought to withdraw from the Project. However the Township protested and the firm agreed to proceed and so advised the Township by letter dated April 5, 1999.

At this point, the Township of Hay became aware of a potential dispute concerning the manner of calculating the majority for the purpose of Clause 4 (1) (a). They were advised that some Drainage Engineers believed that a majority required the signatures of the owners’ of the majority of the properties in the area requiring drainage. In this case two non Petitioners, Exeter and the Ausable Bayfield Conservation Authority and one Petitioner, Lynn Veri, owned multiple properties in the area. If properties were to be counted rather than owners, then there were twenty properties in the area requiring drainage, the owners of only nine of which signed the Petition. The Municipality determined that this issue should be settled before further funds of money were expended.

At a meeting of the Petitioners with the Council on May 17 1999, the Engineer presented four options, namely:

A. Proceed to a relatively expensive final report and put the Petitioners at risk for the heavy cost if the Petition was determined not to be valid;

B. Appeal to the Referee for determination of the validity of the Petition;

C. Proceed with a less costly Preliminary Report with reduced financial risk to the Petitioners and with the hope that with more detail about the proposed Project others would decide to join the Petition at the time of Council’s consideration of Preliminary Report.

D. Attempt to negotiate a mutual drain agreement involving the Conservation Authority, former Town of Exeter, Townships of Hay, Stephen, Hibbert and Osborne.

After meeting with Council on the 5th of July, 2000, the Petitioners asked that the Project proceed under the January 1999 third Petition and the Engineer was so instructed. By letter dated the 12th day of July 2000, the Engineer advised the former Township that the Engineer would not accept such instructions and further advised that they would require a payment of $3500 for making files available to the Township. Efforts to find another Engineer indicated that a substantial further retainer would have to be paid and the Municipality, having already expended $30,000.00, was indeed frustrated, as were the Petitioners.

At this stage the Municipality retained the services of Mr. Wright who recommended that directions be sought from the Referee as to the following:

(A) Is the Third Petition valid

(B) If it is not valid, who should bear the cost as between the several Petitioners

It further became apparent that if Stantec Consulting Inc. was removed as Project Engineer and the issue of their costs settled, that Paul Elston, P.Eng. would be available to proceed with the Project providing the Referee determined that the Petition was valid.

EVIDENCE

Mr. James Neil advised that he had signed the first Petition and that he had already been assessed approximately $4,000.00 as a Petitioner. He urged the Referee to ensure that if the Project did not go forward that he would not be assessed additional sums with respect to subsequent proceedings. Mr. Neil requested the Referee remain seized of the entire Project so as to keep costs in line in such a large Project.

Mr. Tom Prout, General Manager/Secretary Treasurer of the Ausable Bayfield Conservation Authority, advised the Referee that the Authority did not formally object to its lands being included in the area requiring drainage. He stated that the Authority understood the theory of the Drainage Act and realized that although their particular property was not in need of drainage because of its unique special use it could be properly included in a general area requiring drainage. He advised, however, that with respect to assessment the Authority believed that it was proper for their property to receive a zero assessment because their lands would not benefit from a drainage project. He advised that the Conservation Authority had initially proposed the mutual drain option in partnership with the various municipalities because it would permit the development of the drainage basin in stages. This phase development would permit periodic monitoring of the results so as to ensure that the project was fully beneficial. He indicated that the Conservation Authority was not opposed to the project but was very anxious that environmental considerations and cost benefit consideration be dealt with at an early stage.

Mr. Prout advised however that he now believed that the proper procedure would be to proceed under the Drainage Act so that all parties could be assessed, otherwise only the Municipalities and the Conservation Authority would bear the financial burden. He concluded by urging that the Referee remain seized of the Project. He advised that in his opinion the complexity of the project, the cost of the Project and the environmental considerations require that the Referee maintain a comprehensive control of the Project.

Mr. Wright called Phil McNeely, P.Eng. as a professional witness. Mr. McNeely had been involved in the Project as an Engineer after Paul Elston had made his Report of May 1998. He had attended a meeting with Mr. Elston and had reviewed in detail the documentation prepared by Mr. Elston which review included two days in the field in June of 1998. He indicated that in his opinion Paul Elston had provided excellent material, which together with the Hay River Swamp Report (which had been commissioned by the Conservation Authority) would be very helpful to any project engineers. He indicated that the watershed was not conventional and was characterized by unique overland flows during routine storms which occurred during the growing season affecting significant high value crops. Mr. McNeely stated that in his opinion the Town of Exeter would benefit from the Project inasmuch as its landfill site was within the area requiring drainage.

Mr. McNeely stated that he was familiar with the area requiring drainage as defined by Paul Elston and in his professional opinion he was prepared to endorse it as being correct. Mr. McNeely further, when questioned by Mr. Wright, stated that he further believed that the third Petition was valid with the signatures of eight owners out of a total of fifteen. Mr. McNeely added that, in his experience, the proper‑ interpretation of Section 4 (1) (a) was to count owners only, not properties. Mr. McNeely stated that in his opinion the $25,000.00 in engineering fees paid with respect to the Report of Paul Elston was fully justified inasmuch as his Report was both excellent and required. He observed that in his belief Stantec Consulting Inc. currently did not have sufficient drainage engineering experience and that the appointment of a new engineer on the Project was in all the circumstances likely desirable.

SUBMISSIONS

Mr. Wright stated that the first issue to be determined now that the area requiring drainage was no longer in issue was the validity of the Petition. He indicated that there were two schools of thought with respect to the interpretation of Section 4 (1) (a), the first counted the number of owners to achieve a majority and the second school counted the number of properties to obtain a majority. Mr. Wright’s submission was that the better view was to count the number of owners. He stated that in his opinion the Section focused on owners rather than properties and that reference to the assessment roll was merely for the purpose of identification. He added that Section 4 (1) (b) in contrast focused on acreage rather than owners. Mr. Wright referred to the Decision of Referee Turville made on the 2nd day of June 1986 involving Harold Westendorp, et al and the Corporation of the Township of Elizabethtown. He pointed out the logical interpretation of Mr. Turville’s Judgment at the bottom of page 2 and the top of page 3 indicated that he had, in determining the validity of the Petition, counted owners and not properties. Mr. Wright observed that this was the only authority that he could locate and he observed that he could find no authority whatsoever to support the proposition of counting properties rather than owners.

With respect to the second issue dealing with the necessity for the Referee to remain seized of issues relating to the project, he made the following submissions:

He first referred to the common sense factors that supported the continued involvement of the Referee to referee in the matter.

(a) The circumstances of this case had compelled the Municipality to seek directions at an early stage from the Referee because costs in excess of $30,000.00 had already been incurred and substantial further costs would likely be incurred if the Municipality proceeded without determining the validity of the Petition.

(b) There is judicial value in the continuity of a single tier of fact and law in a Trial beset with complex issues involving the environment and cost benefit etc.

(c) It was necessary at an early stage to seek an Order from the Referee providing for the removal of the engineering firm from the Project and determining the engineering cost to be paid.

(d) Of great significance was a problem relating to a Preliminary Report. In the circumstances of this case he argued that all Parties believed that a Preliminary Report was necessary to avoid the very substantial costs of a final Report. A Preliminary Study was required to examine environmental issues, cost benefit considerations and engineering feasibility. However the Drainage Act did not provide an appeal mechanism from the Preliminary Report and various Parties to the Hearing were very anxious to be provided with a right of appeal relating to the substantial issues which would arise from the Preliminary Report. Mr. Wright argued that an appeal of the Preliminary Report could only be provided by the Referee.

(e) The Municipality also expressed the view that it wished to have available the guidance and direction of the Referee to assist along the procedural road in this very complex and expensive Project. Mr. Wright pointed out that the Act specifically permitted access to the Referee, which access was not always available to the Tribunal.

In addressing the Drainage Act, Mr. Wright indicated that Section 106 of the Act used omnibus language in granting original jurisdiction to the Referee. This original jurisdiction, he observed, was exclusive to the Referee. He noted that there was no such language giving original jurisdiction to the Tribunal. He pointed out that under Section 101 decisions of the Tribunal are final, but the Section did not exclude the original jurisdiction of the Referee. He stated that in his opinion there is parallel and over‑lapping jurisdiction. The powers of the Tribunal are specifically set out in the Act and are to be pursued in the normal course to save costs in routine drainage projects. The original jurisdiction of the Referee found in the broad language of Section 106 permits especially complex matters of law and fact to be addressed to the Court of the Referee. He further noted that Section 119 of the Drainage Act allowed matters to be transferred from one Court to the other so as to avoid conflict. Mr. Wright stated that in this matter greater efficiency and even cost savings would be achieved if the Referee remained seized of the matter.

Mr. Wright referred particularly to Section 106 (1) (b) of the Act which grants original jurisdiction to the Referee with respect to Petitions, Resolutions of Council, By‑Laws, both provisional and final, which omnibus provision, he stated, granted broad jurisdiction to the Referee over‑lapping many provisions in the Act normally handled by the Drainage Tribunal.

He concluded by referring to Section 106 (1) (f) which grants omnibus jurisdiction over “any other matter or thing”. This comprehensive section interpreted broadly might even include assessment matters he stated.

SUBMISSIONS OF OTTAVIO COLOSINIO

Mr. Colosimo urged on behalf of his client that the Referee remain seized of all issues with respect to the matter adding that, in his opinion, it was in the interest of all Parties. He advised that there were many difficult issues, particularly cost issues, relating to the time periods before and after the Elston Report. Mr. Colosimo supported all the arguments of M Wright and added that Section 118 of the Drainage Act, particularly Sections 2, 3 and 4 gave additional broad powers to the Drainage Referee. Mr. Colosimo admitted that in this particular case there were major questions of cost benefit and environment which had to be addressed together with the issue of who had to pay the cost of such investigations. He note on behalf of his client. that a significant portion of the lands involved in this drainage basin were lands of very high value.

FINDINGS OF FACTS AND DETERMINATIONS OF LAW BY REFEREE

The Referee, at the outset of the Hearing confirmed (noting that no issue had been taken by any of the Parties) “the area requiring drainage” as set forth in the Report of Paul Elston, P.Eng .in May of 1998. The next issue to be determined was that of the validity of the Petition. The Referee was satisfied, as a matter of fact, that the Petition had been signed by eight owners and that the total number of owners in the area requiring drainage was the number of 15. However, if properties were counted, rather than owners, the number of properties (by roll number) within the area requiring drainage was 20 and the number of owners who signed the January 15 1999 was 10. Section 4(1) (a) of the Drainage Act reads as follows:

“A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,

(a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;”

The issue to be determined is whether the majority in numbers of the signatures on a Petition is based on the number of owners or the number of properties. This issue has caused confusion in past years and requires clarification. In my opinion the drafters of the legislation did not foresee that there would be confusion with respect to this matter, having provided for two separate tests for the validity of the petition, both utilizing the historic democratic measure of the “majority”. The first related to the number of owners (e.g. persons) the second related to quantity of land. In Section 4 (1) (a) the majority of owners regardless of acreage is the determining factor and in Section 4 (1) (b) the number of acres regardless of the number of owners is the determining factor. The tests stand in the legislation in juxtaposition to one another and ought not to be mixed. I find as a matter of law that the Petition is valid, having a majority of the signatures of owners within the area requiring drainage. I might add that both Legal Counsel urged a similar interpretation of Section 4 (1) (a) as being the most logical and reasonable interpretation in the circumstances and I agree with their observations.

With respect to the second major issue urged on the Court by all Parties in this matter and articulated very skilfully by Counsel for the Municipality, namely the requirement for the Drainage Referee to remain seized of and available to give directions at any stage of the process the following considerations apply. The Referee acknowledges that the circumstances of this Project are unique in their complexity of engineering, special environmental considerations and cost benefit considerations largely arising from the immense size of the watershed. Secondly, the fact that the Parties were required to call upon the Office of the Drainage Referee to determine the validity of the Petition so early in the proceeding illustrates why the normal routine of the Drainage Act falls short. Thirdly, the necessity for a Preliminary Report of a special character to encompass the cost benefit and environmental considerations, coupled with the demand by all Parties to have a right of appeal was not available except through the intervention of the Drainage Referee. The allocation of costs for such a preliminary report required special considerations.

The Drainage Referee further agrees with the submissions of Counsel for the Municipality that continuity and familiarity with complex issues and the availability of the Referee to give directions at any stage of the proceedings all provide an improved efficiency, both in public perception and costs.

Turning to the provisions of the Act, the Referee agrees that Section 106 grants original jurisdiction in omnibus language to the Referee as contrasted with the specific provisions granted to the Tribunal. The Referee has original jurisdiction and unlimited jurisdiction with respect to Petitions, Resolutions, By‑laws and in the broadest terms “any claim or dispute arising under the Act”.

The provisions of Section 106 (1) (d) are couched in the broadest language ‑

“to entertain applications for orders directing to be done anything required to be done under this Act.”

Section 106 (1) (f) grants jurisdiction to the Referee in the broadest possible terms mainly “over any other matter or thing” and such a Section coupled with the original jurisdiction of the Referee with respect to by‑laws of Council is sufficient to give the jurisdiction to the Referee to hear an Appeal from a Preliminary Report such as is requested in this case . Particularly is this true in the absence of any other provision for appeal in the Act. The Referee agrees with the submissions of Counsel for the Municipality that the Drainage Act provides specifically for ready access to the Referee for directions and the resolution of issues. However, the Referee should only become involved when special circumstances require a departure from the routine of the Drainage Act.

The Referee also acknowledges the correctness of the submission of Counsel for the Veri Family who pointed out that Section 118 of the Act also grants very broad jurisdiction to the Referee and in particular Subsection 4 which reads as follows:

“Where, in the opinion of the referee or court, damages and costs have become payable by reason of the insufficiency of the capacity or outlet of a drainage works and it is necessary in order to prevent a continuance of such damage to improve the drainage works, the referee or court may permit the council of the municipality to add such damages and costs to the engineer’s estimate of the cost of any such improvement”

The above mentioned Section, coupled with the broad definition of drainage works provides the Drainage Referee or a court with extensive jurisdiction. Drainage works as defined by the Act is as follows:

“drainage works” includes a drain constructed by any means, including the improving of a natural watercourse, and includes works necessary to regulate the water table or water level within or on any lands or to regulate the level of the waters of a drain, reservoir, lake or pond, and includes a dam, embankment, wall, protective works or any combination thereof.”

The Referee, in making a decision with respect to this Application, is guided by the provisions of the Interpretation Act, R. S. O. 1990 Chap. 1.11 which states

“9. The marginal notes and headings in the body of an act and references to former enactments form no part of the Act but shall be deemed to be inserted for convenience of reference only. R.S.O. 1980, c. 219, s.9.

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. R.S.O. 1980, c.219, s.11”

The Drainage Act is remedial enabling legislation and accordingly is to be given the most liberal interpretation to ensure the purposes of the Act are carried out in the most equitable and expedient manner. With that in mind I am prepared to make myself available to all Parties with respect to this matter to give directions and resolve issues as they arise and as applications are made. With that perspective in mind, I HEREBY ORDER THAT after the completion of the Preliminary Report in this matter I am prepared to entertain an application by any of the Parties to this matter which shall include Parties granted standing, all Petitioners and Land Owners within the Drain requiring drainage and any Municipality named in the style of cause. At such Hearing environmental issues, the cost benefit issues, etc. all will be reviewed. Any such appeal must be filed with the Referee within thirty (30) days of circulation of the preliminary reports.

I FURTHER ORDER THAT Stantec Consulting Inc. be removed as Project Engineer and that relevant cost considerations be dealt with at a later date.

DATED: February 11, 2002

Delbert A. O’Brien, Q. C.

Ontario Drainage Referee

Bluewater v. South Huron (City), 2002 ONDR 1

Case Summary