ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Cusson v. Champlain
2002 ONDR 4
2002-07-30
2002-04
STATUTE:
HEARING:
BETWEEN:
2002-01-17
DORILLA CUSSON
APPELLANT
‑AND-
THE CORPORATION OF THE TOWNSHIP OF CHAMPLAIN
RESPONDENT
ORDER
This matter commenced by way of Originating Notice filed by the Appellant requesting a Hearing before the Ontario Drainage Referee set for Thursday the 17th day of January 2002 in the Superior Court House, 59 Court Street, L’Orignal, Ontario. By an agreement between the parties the matter proceeded on the 22nd day of January dealing with a Procedural order, the request for which was contained in the Originating Motion.
The Procedural Order provided for a trial of the matter to be heard on the 25th day of April 2002 at the Court House in L’Orignal. It further provided for completion of discoveries by Friday, the 8th day of March, 2002 and required that all assessed owners be given notice of the hearing date. The Order further required that an official translator be available for the Hearing.
On the 25th day of April, 2002, the Parties once again appeared before the Referee and Mr. Perrier requested a further adjournment of the matter. Mr. Perrier had given notice of a request for adjournment which was not opposed by the Respondent Township. Mr. Perrier requested the adjournment indicating that the transcript of discoveries had not yet been reviewed and indicating that the Parties could endeavour to shorten the Trial by pursuing an agreement as to the facts, etc.
Mr. Gauthier, a major landowner appeared and opposed the adjournment. The Referee granted the adjournment on terms that a new trial date for the 13th and 14th days of June 2002, to be set on a peremptory basis.
The Appellant’s motion, requested that the by‑law No. 2000‑78 passed by the Respondent with respect to the Requisition Drain be quashed for the following reasons:
a) because it contravened Section 3.3 of the Drainage Act and the cost of the work exceeded the amount of $7,500.00;
b) the by‑law contravened Section 15 of the Drainage Act in that the Report did not provide for sufficient outlet;
c) the Drainage Engineer, Andre Desjardins, P.Eng. the appointed Engineer, did not perform his responsibilities as defined in Section 11 of the Drainage Act.
Section 3.3 of the Drainage Act states as follows:
3.3 ‑ “No drainage works, the total estimated cost of which will exceed $7,500, shall be constructed under this section.”
Section 15 of the Drainage Act states as follows:
- ‑ “Subject to section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet. “ R.S.O. 1980, c. 126, s. 15
Section 11 of the Drainage Act states as follows:
- ‑ “The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.”
The Appellant filed the Notice of Intention to make Application to quash the by-law as required by Section 58 (2) of the Drainage Act and there appeared to be no issue with respect to the procedural correctness of the Appeal.
BACKGROUND:
The Agricultural Food and Rural Affairs Appeals Tribunal had conducted a Hearing for an appeal from the Court of Revision and a Section 48 Appeal. That Appeal was heard on the 17th day of July, 2001. In that Appeal the Tribunal Chairman provided the following background which is repeated here:
“Mr. André Desjardins, P.Eng. told the Tribunal that he had been retained by the Municipality to design a drainage works to provide an outlet for a subdivision known as Place Riviera Place. Mr. Desjardins explained that because the drainage works requested was a requisition drain, he could only assess the cost of the drain to lands lying up to 750 metres on either side of the proposed drain, rather than lands in the entire watershed. He estimated that there were 450 acres in the watershed and that 156 acres of this land could be assessed for the drain.
Mr. Desjardins explained that a ditch at the west end of the subdivision flooded due to insufficient outlet. He said he considered two possible routes and determined that the most effective solution was to provide drainage through a wooded area on the Cusson property (Roll No. 01‑244‑00) to an existing ditch on the property owned by the George C. Stevens Estate. He proposed the cleanout of existing ditches on land owned by Mr. Cusson and Place Riviera Place In. The proposed construction on the Cusson property consists of 750 feet of ditch, approximately 2 feet deep, at a 0.18 % gradient: The total length of the drain is 1350 feet. He also recommended the installation of twin twenty-foot long 36‑ inch diameter culverts, under an access road on the Cusson property. Mr. Desjardins said the outlet of the drain into a private ditch was only 6 inches above the level of the Ottawa River.
Mr. Desjardins estimated the cost of the drainage works at $7,450.00. He said he had apportioned the cost of the drainage works in the ratio of 60 % benefit liability and 40 % outlet liability, as this was his normal custom. He explained that 75 % of the benefit portion was charged to lands in the subdivision, and 25 % to the Cusson property. He used a value of $400/acre in calculating the allowances. He said he did not provide an allowance to the George C. Stevens Estate as the drain would enter the ditch on this property at the same location as an existing ditch. Mr. Desjardins said he did not distinguish between developed and underdeveloped lots in the subdivision in calculating outlet liability, as he designed the drain for a fully developed subdivision.
Mr. Desjardins explained that Mr. Gauthier, the developer of the subdivision, had agreed to pay all costs assessed to lands in the subdivision, and that the Engineer’s Report provided that the Municipality was to pay the costs of maintaining the drain, except the cost of culvert replacement.
Mr. Desjardins explained that the land in the drainage area was very flat and that the soil on the Cusson property was black muck over clay.”
CHRONOLOGY OF FACTS
As agreed upon by the Parties:
(a) The requisition for the drain was filed with the Township June 14, 1998 by Robert Gauthier
(b) Grading Plan for Subdivision signed by André Desjardins, P.Eng. August 7, 1998
(c) Resolution of Council approving Preliminary Report July 13, 1999
(d) Preliminary Report completed dated January 13, 2000
(e) Meeting of Council to review Preliminary Report March 14 2000
(f) Resolution of Council authorizing preparation of Final Report June 6 2000
(g) Final Report dated August 8 2000
(h) Provisional By-law approving Report approved September 5, 2000
(i) Court of Revision held on October 10 2000
(j) By‑Law incorporating Decision of Drainage Tribunal dated October 2 2001
Mr. Perrier described the issues in the Appeal as follows:
a. Did the estimated costs exceed $7,500;
b. Did the Engineer, André Desjardins, act in accordance with the requirements of Section 11 of the Drainage Act;
c. Was the drain taken to a sufficient outlet and/or was there a breach of notice requirements with respect to the downstream owner.
Mr. Perrier stated that in his opinion there was no question with respect to the jurisdiction of the Drainage Referee in this matter. He referred to Section 47 of the Act and quoted portions of that Act, namely:
“Any owner of land .... affected by a drainage works dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or the engineer has reported that the drainage works cannot be constructed under Section 4 may appeal to the referee”.
Mr. Perrier then referred to Section 106 of the Drainage Act which he stated granted original jurisdiction to the Referee with respect to (a) Section 47 Report (b) validity of any petition, resolution or by‑law of Council. He referred specifically to Subsection (4) granting the Referee power to determine all question of fact or law.
Mr. Perrier noted that the Referee had power to hear appeals from the Drainage Tribunal except as noted in Section 101 of the Drainage Act, but noted that the Tribunal jurisdiction was specific, relating to Sections 48 and Section 54, namely cost benefit, modification and design, compensation or allowances and assessment. He concluded by stating that none of the above mentioned particular grounds were in issue in this matter and accordingly the Referee had original jurisdiction to deal with this Appeal on all matters before him.
Mr. Perrier submitted two legal authorities in support of the proposition ‑ That the by‑law ought to be quashed due to the failure to comply with the mandatory requirements of the Statute; City of Niagara Falls v Township of Niagara. Decision of Judge Clunis (Drainag‑ee Referee) reported in Ontario Reports 1967 Volume 1 at p 96. He also quoted in support of the same proposition the Court of Appeal Decision of McCulloch v Township of Caledonia 1998 Ontario Appeal Report at page 417.
Mr. Perrier argued that the subject by‑law could not be legally supported because the estimated cost of the requisition drain exceeded the requirements of Section 3 subsection 3 which limited the estimated cost to $7500.00. He noted that Section 70 of the Drainage Act required the engineering fees formed part of the cost of a drainage work. He advised that the final report was dated August 8th, 2000. The Report estimated that the cost of the proposed work, including fees, would amount to $7,450.00. The engineering fees were estimated to be $1,856.00. However he pointed out that an invoice dated August 18 sent to the Municipality, (which included all engineering work up until August 12, 2000) provided for engineering fees of $3,665.57. He argued that that increase in engineering fees indicated that the total cost of the work would amount to $9,259.57 rather than $7,450.00 and would accordingly exceed the statutory limit. He allowed that the engineer must have been aware of the increased engineering fees at the time he filed his final report, but more importantly he was aware of it as was the municipality before the Report was adopted by the Provisional By‑Law of September 5, 2000. Mr. Perrier stated that he. did not know what evidence the Drainage Tribunal had before its Hearing with respect to this matter, but in any event argued that they did not have jurisdiction to determine the matter. Mr. Perrier argued vigorously that the true cost of the work ought to have been made available to the assessed owners and to the members of Council before the by‑law was adopted so that they might respectively be in a position to truly assess whether or not the work should go forward as a Requisition Drain.
The second argument of the Appellant dealt with the issue of whether or not the appointed Drainage Engineer was in a position of conflict contrary to the requirements of Section 11 of the Drainage Act. Mr. Perrier noted that the agreed upon facts indicated that the requisition had been filed with the municipality by Mr. Gauthier on June 14 1998. He further noted that the Grade Plan for the Subdivision had been signed by André Desjardins on August 7 1998. Mr. Perrier referred also to a letter dated June 22 1998 addressed to the Township of Champlain and written by André E. Desjardins which letter states:
“We are requesting that the Mayor and the Administrator be authorized by the resolution of Council, on behalf of the Municipality of Champlain, to enter into a subdivision agreement with Mr. Robert Gauthier”.
The Township replied to the letter by letter on June 25 1998 confirming they were prepared to enter into an agreement to amend the Subdivision Agreement.
Mr. Perrier referred to a letter filed as an Exhibit dated the 11th of March 2002 in which Mr. André Desjardins replied to undertakings made on discovery. The letter outlined the times during which he was engaged in work for the Subdivider, Mr. Gauthier. The Appellant’s Counsel noted that Mr. André Desjardins referred to Mr. Gauthier in that letter as “his client”. The letter illustrated that Mr. Desjardins worked for Mr. Gauthier, the Subdivider, between August 14, 1999 and May 6 2000 and again between September 29 and October 4, 2000 and finally between June 16, 2001 and August 18 2001. Mr. Perrier pointed out that during these times the Engineer was working concurrently for the Township in preparing the Preliminary Report and processing it through Council, etc. The Appellant’s Counsel referred the Referee to the Supreme Court decision of Martin and Grey. 77 DLR (4th) p. 249. In that case, he argued, the appropriate test for a professional in a position of conflict was ‑ “the test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information will occur”.
Mr. Perrier accordingly argued that it was an objective test, the opinion of a reasonable man being satisfied as to the appearance of justice. On the facts of this matter, he submitted, that test was not met.
The final argument of the Appellant related to two matters, namely:
(a) the sufficiency of outlet; and
(b) adequate notice.
The Drainage Report provided for the outlet on Lot 15 (allegedly owned by the Estate of George C. Stevens) into an existing ditch which eventually flowed to the Ottawa River. It appears that the Drainage Tribunal, recognizing that the outlet was not a secure outlet for the Municipal Drain, ordered that the Municipal Drain be extended to the Ottawa River. Mr. Perrier argued that the Tribunal did not have the jurisdiction to amend the by‑law. Mr. Perrier proceeded to argue that adequate notice had not been given to the owner of Lot 15 and inasmuch as notice was a statutory requirement, that failure provided a sufficient basis on which to quash the by‑law. He noted that in extending to the Ottawa River a considerable portion of the Municipal Drain was located over Lot 15. He advised that Lot 15 was now owned by Brian Hayworth. The owner of Lot 15 had not received notice of (a) the site meeting as required by Section 3 sub 7 of the Drainage Act; (b) the meeting to consider the report in accordance with Section 3 sub 10 of the Drainage Act; (c) a copy of the Reports, etc.; and (d) the Court of Revision or the Drainage Tribunal Appeal.
Mr. Perrier concluded by stating that the provision of notice was mandatory, that the failure to provide it excluded the Owner from the proceedings, in circumstances where the works extended over his property, resulting in a breach of natural justice and giving sufficient grounds to quash the by-law.
Mr. Tolhurst, Counsel for the Respondent replied to the arguments of the Appellant’s Solicitor by stating that the estimated cost of the work was under $7,500.00 and accordingly the by-law was proper, notwithstanding the fact that subsequently the costs exceeded the estimate. In any event he argued that the Drainage Tribunal had dealt with the issue. Mr. Tolhurst further argued that this was a very simple drain, involving very few owners and that it had caused considerable grief to the Municipality. He pointed out that the major expense in cost estimates related to excavation and not engineering. He advised there were extra costs the Engineer had not anticipated such as the need to translate the Report into the French language.
With respect to the issue of the alleged conflict of interest, Mr. Tolhurst argued that consideration ought to be given to the fact that there were very few local drainage engineers available and that minor conflicts were bound to occur. Once again he indicated that the Drainage Tribunal appeared to have considered the issue and found no problem. Mr. Tolhurst advised that André Desjardins was not the official engineer for the subdivision, but only worked periodically for the Subdivider. He pointed out that there was no actual evidence of prejudice presented. Mr. Tolhurst referred the Referee to several cases, the first being Labute v Tilbury North Appellate Division SC 1918 CanLII 879 (ON SCHCD), 44 OLR p 522 in which the court stated:
“In drainage and other matters the court should not interfere unless there has been a manifest and indisputable excess of jurisdiction or an undoubted disregard for personal rights”.
Mr. Tolhurst also referred to the case of Township of Harwich and Howard 1946 CanLII 80 (ON CA), 1946 O.R. at 268 CA. He referred the Referee to a quote of Referee Henderson in that case:
“I think that as a Referee I must be very careful in interfering with matters which under the Municipal Drainage Act are vested in the municipal council and its engineers. It is my duty to leave to the municipality engineers employed by it the conduct of all those proceedings and actions vested in them by the Act and in my opinion I should only interfere when I am satisfied that there is a lack of jurisdiction or some wrong principle has been applied with the scheme as against the provisions of the Act and the interpretation of the Act as set out in cited cases. Otherwise this discretion exercised by the engineer and the council must prevail.”
FINDINGS OF THE REFEREE
The Referee, after careful consideration of the agreed upon Statement of Facts and arguments of Counsel found as follows:
In the circumstances of this case the final by‑law dated September 5, 2000 was in conflict with the provisions of Section 3 subsection 3 of the Drainage Act. That Section requires that the estimate for the work, including engineering fees, not exceed $7,500.00. The evidence indicated that before the Provisional By‑law was passed adopting the Report, the Engineer had submitted to the Municipality a Report indicating the cost, including the cost of engineering fees up to that date, namely the 18th day of August, 2000, exceeded the sum of $9,000.00. The Engineer is an agent of Council and any information he has with respect to Report and particularly the cost of the work must be passed on to Council before the Report is adopted by by‑law. It is clear from the evidence that at the time the by‑law was adopted on September 5, 2000, the engineering fees, already submitted to the Municipality for payment were such as to make the cost of the work exceed the statutory limit of $7,500.00. Because the account had been submitted to the Municipality and received by August 22, the Municipality ought to have been aware that the costs would exceed the statutory limit.
The question of cost is fundamental to a Requisition Drain. For that reason a preliminary report is required so as to give an early indication of cost so as to permit an early determination if costs are to exceed the statutory limits. A second opportunity to terminate the work is provided when the final report is given and considered. These are safeguards provided in the Act to avoid excessive costs being incurred. I agree with the Solicitor for the Respondent that after adoption of the final report costs may well, in many circumstances, exceed the estimated cost and in such case there would be no grounds for setting aside or quashing the by‑law. However, that was not the case in these circumstances. The knowledge that the costs would exceed the statutory limits was known to the appointed Engineer and passed on to the Municipality in the form of his invoice for engineering work, all before the final report was adopted.
Dealing with the second issue, namely the question of conflict or the appearance of conflict, I am satisfied, on the evidence, that the Drainage Engineer, André Desjardins, was working both for the Subdivider and for the Municipality intermittently, but concurrently and as such was in conflict in terms of the Drainage Act. The role of the drainage engineer appointed pursuant to the Ontario Drainage Act is one of great responsibility and authority. He is expected to exercise “skill, knowledge, judgment and ability, honestly and faithfully and without fear of favour or prejudice against any person. It is a trust that must be fulfilled without “fear of favour to or prejudice against any person”. This term implies an objective perception and thus the drainage engineer must be seen to perform his or her work so that no one involved in the procedure fears dishonesty. In this matter, as in any matter, the engineer is required to determine what assessment should be paid by the Subdivider who, by his own admission, was his client and at the same time by the Apellant, Dorilla Cusson in whose interest he had duty to perform as an agent of the Municipality. I acknowledge the argument of Mr. Tolhurst in stating that in rural areas professionals often act responsibly in conflict situations, but in this case the evidence of possible conflict was such that it could not be ignored.
I THEREFORE FIND THAT André Desjardins could not be seen to fulfill his functions as appointed Drainage Engineer in accordance with the requirements of Section 11 of the Drainage Act.
I FURTHER FIND THAT the Report and By‑Law adopting it are in conflict with the mandatory requirements of the Drainage Act and must be set aside.
With respect to the issue of sufficiency of outlet and notice to downstream owner I need not make a determination. However, I will state that had the downstream owner, Brian Hayworth, appealed on the basis of failure of notice in accordance with the requirements of the Act I would have been disposed to set aside the Provisional By‑Law on that grounds.
Notice is a fundamental requirement of natural justice. The provisions of the Drainage Act deal with the loss of fundamental property rights and taxation so as to require that the basic rules of natural justice be observed without exception and due notice is such a right.
In the circumstances I find it necessary to comment that in all the circumstances of this case I find that the Municipality acted in good faith with a sincere desire to serve their ratepayers but without due attention to the mandatory and technical provisions of the Drainage Act.
ORDER:
I THEREFORE ORDER that the Provisional Drainage By‑Law No. 2000‑78 passed on the 5th day of September, 2000 be set aside and quashed.
I FURTHER ORDER that Counsel provide me with written submissions with respect to the issue of costs, to be received within thirty‑five (35) days of the date of this Decision.
DATED: July 30, 2002.
Delbert A. O’Brien, Juris D., Q.C.
Ontario Drainage Referee