ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
King v. Kawartha Lakes (City)
2002 ONDR 5
DATE OF DECISION:
2002-04-26
2002-05
STATUTE:
HEARING:
BETWEEN:
2002-03-14
CARL KING
APPELLANT
‑AND-
THE CORPORATION OF THE CITY OF KAWARTHA LAKES
RESPONDENT
DECISION
The above mentioned appeals and motion were heard by the Ontario Drainage Referee on the 14th and 26th days of March 2002 in the Superior Court House, 440 Kent Street West, Lindsay,
Ontario.
The original notice of appeal requested the following relief:
A. An Order setting aside the Decisions of the Ministry of Agriculture, Food and Rural
Affairs Appeal Tribunal dated March 23 2001 and June 29, 2001 concerning the
Washington Drain in the Township of Mariposa;
B. An Order that the Referee is seized of the Appeal of Carl King concerning the Report
by Tom Pridham, P. Eng. dated April 28 2000 and the assessments levied thereunder.
C. An Order setting out the procedure for the conduct of the Appeal as a trial de novo in
substitution for a hearing by the Tribunal.
The ground for the Appeal were as follows:
A. The written Decision of the Tribunal of March 23 2001 varies from the oral decision given at trail, without reason or explanation, thereby tainting the Tribunal and giving the appearance of it making decisions based on additional considerations after the completion of the hearing.
B. In the June 29 2001 decision, the Tribunal refused to transfer this matter to the Referee and refused to give reasons for its refusal thereby giving rise to a reasonable apprehension biased against Carl King.
The Appeal was dated September 17 2001. A subsequent Appeal dated the 8th day of March 2002 requested the following relief:
A. Setting aside the decision of the Tribunal dated September 17 2001 and October 22
2001 concerning the Washington Drain in the Township of Mariposa.
B. An Order that the Referee be seized of the Appeal of Carl King concerning the Report
by Tom Pridham, P. Eng. dated the 28th day of April 2000 and the assessments leivied thereunder.
C. An Order setting out the procedure for the conduct of this Appeal as a trial de novo, in
substitution for the hearing by the Tribunal.
The Grounds for the Appeal were set out as follows:
A. The Tribunal mistakenly interpreted the correspondence from Carl King's counsel advising of an appeal from an earlier decision as a request for an adjournment of a hearing set by the Tribunal for September 18, 2001. The Tribunal accepted
submissions from other parties, one without notice to Carl King, and did not afford
Carl King an opportunity for reply.
B. The Tribunal conducted a hearing on September 18 2001 and rendered a decision on
October 22, 2001 when it was without jurisdiction because of the outstanding appeal to
the Referee and when there was a stay in place because of the statutory Powers of
Procedures Act.
In addition, the Appellant filed a Notice of Motion requesting the following relief:
" 1. The Applicant makes application for:
(a) An order setting aside the decisions of Agriculture, Food and Rural Affairs Appeal Tribunal dated March 23, 2001, June 29, 2002, September 17, 2001 and October 22, 2001 concerning the Washington Municipal Drain.
(b) An Order that the Referee is seized of the proceedings concerning a report by Tom Pridham, P. Eng. , dated April 28 2000 and the assessments levied thereunder.
(c) An Order setting out the procedure for the conduct of this appeal.
(d) An Order setting aside By‑Law 2000‑25 of the Corporation of the Township of Mariposa.
(e) An Order prohibiting the Respondent from initiating any works of repair, improvement, extension or enlargement of the watershed of the Washington Drain until such time as a sufficient outlet is available, as specified in the report of a qualified engineer and until such report is finally adopted under the provisions of the Drainage Act.
(f) An Order extending the time for filing and serving this Notice, if necessary.
(g) An Order that this matter be tried together with two (2) appeals by Carl King concerning the same matter."
"2. The grounds for the application are:
(a) The Applicants are owners of land downstream of the work proposed for the Washington Drain, which outlets into MacLaren's Creek Tributary.
(b) The Applicants had no notice of the Report of Tom Pridham, P.Eng. dated April 28 2000 as they are neither assessed owners or grantees of allowances thereunder.
(c) The Applicants have since become aware of the proposed work, which affects them as the increased volume and/or velocity of the flow will worsen the flooding which already occurs on their land.
(d) The Applicants, or some of them, have in the past complained to the Respondent, or its predecessor, that MacLaren's Creek Tributary cannot accept the flows already delivered to it by the Washington Drain. "
ISSUES
By special agreement of Counsel for the Parties, it was decided that the Ontario Drainage Referee would conduct a Hearing focused exclusively on the issue of whether the Referee had jurisdiction to hear the aforesaid Appeals. The Hearing date was set, on consent, for March 7th 2002.
Valerie M'Garry, Counsel for the City of Kawartha Lakes, however, chose to bring an
application on the 6th day of March, 2002 before Mr. Justice W. A. Jenkins of the Superior Court of Justice, Divisional Court, in London Ontario staying the Ontario Drainage Referee from reviewing the Decision of the Tribunal. Mr. Justice Jenkins, as part of his endorsement in dismissing the Application, stated:
"In the case before me the Referee has indicated that he is anxious to hear full argument on the issue of jurisdiction and his right to review the decision of the Tribunal. I believe that he should be afforded that opportunity in spite of the fact that he has dealt with the issue on other occasions".
Accordingly the Drainage Referee proceeded to hear the matter focused on the issue of the jurisdiction of the Drainage Referee to hear the Appeals.
FACTS
Because the issue before the Referee was a matter of law , only a very limited outline of the
facts is required. The project commenced by way of several petitions submitted to the
Corporation of the Township of Mariposa in the summer of 1998 and the spring of 1999. A
Drainage Report dated the 28th day of April 2000 was completed by the appointed Drainage
Engineer and a Provisional By‑Law passed by the Municipality dated, the 5th day of May 2000.
Subsequently on June 29, 2000 the Court of Revision was conducted. Thereafter an appeal was received from Carl King pursuant to Section 48 of the Drainage Act and subsequently also with respect to 54.
The AFRAA Tribunal heard the Appeal on the 15th day of March 2001 and after a Motion to conduct Discoveries was made, the Tribunal re‑convened in a pre hearing mode and rendered a Decision dated March 23 2001. In the Decision the request to conduct Discoveries was denied, but an Order was made for the production of certain records, etc. One area of contention arising out of the Order was the apparent failure to grant a right of access to the Engineer of the Appellant to enter upon the lands included in the drainage works. It was alleged that the Tribunal Chairman had orally stated that such an Order would be forthcoming. Subsequently when Counsel for the Appellant casually ran into the Tribunal Chairman and inquired about the Order he was advised " we decided differently". At the June 19th 2001 Hearing, Mr. Courey on behalf of the Appellant asked the Tribunal to recuse itself on the basis of bias based on the alleged irregularity of the Order. The Tribunal dismissed the Application but proceeded to hear a conflict of interest complaint made by the Appellant with respect to Mr. Swain, solicitor for the City. It appeared that Mr. Swain's partner had previously acted for one of the downstream owners who raised complaints with respect to a culvert. Mr. Swain was allowed to step down and was replaced by Valerie M'Garry at the subsequent hearing.
A new hearing date for the Drainage Tribunal was set for September 18 2001. Mr. Courey's notice of appeal was accepted as a request for an adjournment and on Monday the 17th day of September 2001 the Tribunal convened a teleconference call. Apparently the Tribunal dismissed the Application for an adjournment and proceeded with the Hearing on September 18. At the Hearing on the 18th Mr. Courey advised that he took no part in the proceedings, alleging that the Tribunal was without jurisdiction.
Because the only issue to be determined in this matter was the legal question of whether or not the Drainage Referee had jurisdiction to hear the Appeals before him, the matter proceeded without the presentation of any evidence.
SUBMISSIONS OF VALERIE M'GARRY
Counsel for the Respondent proceeded first. Ms. M'Garry commenced by noting that the current appeals were before the Drainage Tribunal pursuant to Section 48 and 54 of the Drainage Act. The issue arising, she maintained is whether or not the Drainage Referee had the right by way of judicial review to take control of the process and conduct a hearing de novo. In this case she added that the appeal was also a final decision of the Tribunal dealing with an engineer's report and the appeal was filed out of time.
Ms. M'Garry stated that the powers of the Drainage Referee were granted, defined and limited by Statute and accordingly must be interpreted correctly.
She note that Section 48 and 54 Appeals were specifically referred to in the privative clause of Section 101 of the Drainage Act. That Section states that:
"Such appeals of the Drainage Tribunal are final"
The Respondent' s Counsel further advised that although the Drainage Referee has original jurisdiction under Section 106 (1) of the Act, that jurisdiction does not include powers of judicial review. She stated that the Judicial Review Procedure Act of 1971 codified the special remedies granting exclusive jurisdiction to the Divisional Court, (quoting Section 2 and Section 6 of said Act.)
Ms. M'Garry advised that the extent of the Referee's powers as defined in Section 106 of the Drainage Act appear to overlap with matters reserved exclusively to the jurisdiction of the Divisional Court, but if such was the case that these powers are unconstitutional and void relying on the authority of Reference re: Residential Tenancies Act 1979 (Ontario) 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714 (S.C.C.)
Ms. M'Garry further stated that any jurisdiction the Referee might have with respect to interlocutory matters pursuant to Section 106 (3) of the Act was not now relevant because the Referee was now "functus‑officio". The Application should have been made prior to the commencement of the Hearings on the merits and the final disposition of the same. Ms. M'Garry concluded by stating that the Referee is similarly "functus‑officio" with respect to a motion or appeal pursuant to Section 47 of the Act since the matter has been heard and completed.
SUBMISSIONS OF PAUL COUREY for Appellant
Mr. Courey advised that the use of judicial review language in the circumstances of this case was an error on his part and the only issue to be determined was whether or not the privative clause in Section 101 was sufficient to prevent the appeals. He stated that the Statute, namely the Drainage Act clearly grants a right of appeal to the Referee. This right of appeal is expressed in the broadest terms and includes all Tribunal decisions, save and except those specifically excluded by Section 101. He continued by stating that the Drainage Referee is an Appellant body with respect to the Drainage Tribunal quoting subsection (2) of Section 106
which reads:
"Subject to Section 101 the Referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purposes may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal".
Mr. Courey argued that the privative clause Section 101 only applied to substantive issues. He submitted that it did restrict appeals relating to issues of natural justice or abuse of process, etc.
Mr. Courey referred to the Administrative Law publication David J. Mullan, Professor of Law, Queen's University, published also in Canadian Encyclopaedia Digest which at page 575 states
" a great deal of judicial scrutiny of administrative action is carried on in statutory appeals rather than as applications for judicial review. If there is a right of appeal from a statutory decision to a court or a second tier administrative tribunal, it should be used to seek redress instead of judicial review. "
Professor Mullan referred to the authority of Canadian Pacific Ltd vs Matsqui Indian Band 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3
Mr. Courey proceeded to quote from the same article at page 576 as follows:
"In their broadest incarnation, statutory appeals differ significantly from judicial review; a general right of appeal, and particularly an appeal by way of hearing de novo, involves the appellate body reassessing the merits of the decision at first instance on the law, facts or evidence and without according it any deference. The appeal body may substitute its own decision for that of the authority under appeal. Indeed, the appellate authority will be declining its jurisdiction if it does not engage in a reassessment of the decision under appeal. "
He further quoted from the same article at page 578:
"A statutory right of appeal on law and jurisdiction includes all species or jurisdictional infirmity, including the various grounds of abuse of discretion and breach of the rules of procedural fairness or natural justice. A right of appeal confined to questions of law does not exclude jurisdictional infirmities as nullities that are not applicable; rather, a jurisdictional error is simply a species of error of law".
Mr. Courey proceeded to argue that Section 6 of the Judicial Review Procedures Act did not apply in the circumstances of this case because this was not a judicial review, but rather a statutory appeal.
Mr. Courey submitted that because this was the exercise of a statutory right of appeal as opposed to judicial review it did not raise issues of constitutional concern. He advised that in the circumstances of an appeal from, the Tribunal to the Referee, the Referee had no option but to hear the appeal and determine whether or not the privative clause Section 101 had application.
Mr. Courey argued that it would have been improper for him to proceed directly to the Divisional Court without first exhausting his client's right of appeal as provided in the Drainage Act and he referred for authority to the Jafine and Catherwood v College of Veterinarians of Ontario and Discipline Committee of the College of Veterinarians (1991), 1991 CanLII 7126 (ON CTGD), 5 O.R. (3d), 439 (Gen.Div.) where it was held
"it would be premature to refer the matter to the Divisional Court; the appropriate time for that Court to consider the matter was after the decision of the Discipline Committee being rendered at which time the issues would be known".
Mr. Courey proceeded to argue that privative clauses should not be allowed to protect decisions flawed by a breach of natural justice. To support his submission he quoted once again from Professor Mullan at page 232 (infra):
"Breach of either limb of the rules of natural justice or procedural fairness renders a decision void rather than voidable. As a consequence, breach of the rules of natural justice or procedural fairness is generally a species of jurisdictional error, the main consequences of which are that review on procedural grounds is not affected or limited by the presence of a privative clause, other decisions or actions resulting from the impugned decision are themselves invalid and collateral attack is a possibility, at least in certain forms. Also, a breach of this type is a free‑standing or independent ground of judicial review, meaning that the court should not assess the substantive issue at stake and refuse relief where the denial of procedures was of no consequence to the outcome. "
Consequently, the solicitor for the Appellant argued that the Referee had original jurisdiction as outlined in the many provisions of Section 106. The provisions of Section 106, he noted, are defined in the broadest possible terms, citing for example Section 106 (1) (d)
"to entertain applications for orders directing to be done anything required to be done under this Act. "
and Section (f)
"over any other matter or thing in relation to which application may be made to him or her under this Act. "
Mr. Courey made reference to Section 106 (4) of the Drainage Act which reads as follows:
"The Referee has power to determine all questions of fact or law that it is necessary to determine for the purpose of disposing of any matter within his or her jurisdiction and to make such decision, order or direction as may be necessary for such purpose".
The issue of procedural fairness is a question of law and thus ought to be determined by the
Referee pursuant to this Section, he stated.
Section 106 (2) provides that on an appeal from the Tribunal that the Referee
"may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal. "
This Section, argued Mr. Courey in conclusion, authorizes the Referee to hear a matter de novo.
WRITTEN SUBMISSIONS OF THE ATTORNEY GENERAL
The Attorney General, after receiving notice of a constitutional question pursuant to Section
109 of the Courts of Justice Act responded by filing a written submission.
The Attorney General maintained in his written brief that Section 106 (1) did not give the
Referee power to review decisions made pursuant to Section 48 and Section 54 of the Act.
Part of the Attorney General's submissions are reproduced.
"6. For convenience ss 106 (1)(d) (f) are reproduced below:
"(1) The referee has original jurisdiction,
(d) to entertain applications for orders directing to be done anything required to be done under this Act; and
(e) to entertain applications for orders restraining anything proposed or purporting to be done under this Act or a predecessor of this Act; and
(f) over any other matter or thing in relation to which application may be made to him or her under this Act ;
- While these subsections contain broad wording in the context of the Act as a whole and particularly in light of ss. 106 (2) and 101, it is clear that they do not give the Referee the power to review `on a procedural and natural justice basis' decisions made by AFRAAT under the Sections listed in s. 101 of the Act.
The Attorney General submits that if the legislature had intended to give the Referee the power to judicially review decisions made by AFRAAT pursuant to the Sections listed in s. 101 of the Act , it would have done so expressly. The fact, recognized in the City of Niagara Falls v Overmeyer, infra, that the legislature specifically considered including a general right of appeal to the Drainage Referee in the Act but decided otherwise, does not support the view that the Referee has jurisdiction to review, on a procedural basis or natural justice basis AFRAAT decisions made under s. 48 and 54 of the Act.
- In the‑City of Niagara Falls v. Overmeyer and the Township of Howard v. Heyboer, the Drainage Referee found that he had jurisdiction to judicially review decisions made by the Ontario Drainage Appeal Tribunal [now AFRAAT] under the sections listed in s, 101 of the Act. The Referee did not rely on s 106 (1) to find his jurisdiction, but appeared to rely on s. 106 (2) and some inherent jurisdiction of the Referee to judicially review decisions. Notwithstanding the remedial nature of the Drainage Act, no Tribunal including the Ontario Drainage Referee has inherent jurisdiction to review decisions on a procedural natural justice basis. The jurisdiction must come from an express grant of authority in the enabling statute or from the inherent jurisdiction of a superior court. The Drainage Referee is not sitting as a superior court and therefore has no inherent right of judicial review."
The Attorney General went on to deal with the constitutional issue which is unnecessary in the circumstances to review.
REASONS
In this matter the Referee had the able assistance of experienced Counsel whose submissions were of great assistance. In determining the jurisdiction issue the first matter to be resolved is whether or not the Drainage Referee has inherent jurisdiction to conduct a procedural review resulting from a breach of natural justice in the conduct of a hearing. The Referee has no difficulty in determining that the Referee does not possess any inherent jurisdiction in the absence of specific and enabling legislation to hear appeals dealing with breach of natural justice etc. Such inherent jurisdiction is restricted to a Section 96 Court and more particularly the Divisional Court pursuant to the terms of the Judicial Review Procedural Act R.S.O. 1990
chapter J1 Section 2 and 6.
The Second issue to be determined is whether or not the Ontario Drainage Referee has specific jurisdiction granted by the Ontario Drainage Act and more particularly Section 106 of the said Act to hear appeals of the Ontario Drainage Tribunal relating to a procedural abuse of natural justice etc. The main thrust of Mr. Courey's argument related to this aspect of the matter..
Section 106 (2) explicitly empowers the Referee as an Appellate body with jurisdiction to hear appeals on any decision of the Drainage Tribunal subject only to the privative Section 101.
Section 106 (2) which reads as follows:
"subject to section 101 the Referee has jurisdiction to hear appeals from any decision or order of the tribunal and for said purpose may make any order the tribunal might have made and may substitute his or her opinion for that of the tribunal"
This grants the statutory right of appeal on the broadest terms.
The Supreme Court of Canada in Re: Harelkin and the University _of Regina 1979 CanLII 18 (SCC), 96 D.L.R. (3rd) 14 found that a writ of certiorari should not issue in circumstances where a second tier appellate tribunal was available to hear the appeal. In that case, Beetz J. stated:
"In this case the writ should not issue for the appellant had an adequate alternative remedy, namely a right of appeal to the Senate Committee which he did not pursue. Moreover the decision of the Committee of Council was within its jurisdiction and its failure to observe the rules of natural justice does not render it void so as to leave no decision from the Senate Committee. Even if the decision was a nullity, it is still appealable because of the statutory power given to the Senate to hear appeals from the decisions of the Council. The failure of the Committee of Council to observe the rules of natural justice could have been cured on an appeal to the Senate Committee which would have to be conducted at a trial de novo. "
Thus, it would appear that the Supreme Court of Canada has ruled that when a statutory appeal is available to an appellate tribunal, even where the issue is an abuse of natural justice, that avenue of appeal ought to be pursued before a judicial review is undertaken.
However, the issue of the private clause remains and the questions is whether or not it is a bar to an appeal where the issue is an abuse of natural justice as opposed to an issue of substantive law.
The law has consistently held that a privative clause, particularly a clause using the word "final" is not a bar to a judicial review appeal to a Section 96 appointed Court. However, I have not been given, nor have I found decided cases dealing with the issue of a breach of natural justice in a statutory appeal involving a privative clause and an appellate tribunal.
Therefore, notwithstanding the admonition of the Interpretation Act which directs a broad and liberal interpretation of remedial legislation, such as the Drainage Act, I am inclined to adopt a strict interpretation of the Sections so as to avoid further litigation and the possible cost of a constitutional challenge. I am aware of the extraordinary financial burden this matter has already placed on the backs of agricultural producers in pursuing their rights under the Drainage Act. Henceforth the only avenue for redress of procedural abuse for agricultural producers engaged with the Drainage Act will be the very much more costly relief available through the Divisional Court. I find that I am without jurisdiction to hear the appeals in this matter.
ORDER
In accordance with the aforesaid reasons I HEREBY DISMISS all three matters AND I FURTHER ORDER THAT I will receive written submissions with respect to the issue of costs, such submissions to be received by my office within thirty (30) days of the date of this Decision.
DATED: April 26, 2002
Delbert A. O'Brien Q.C.
Ontario Drainage Referee