ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

King v. Kawartha Lakes (City) 2002 ONDR 6

DATE OF DECISION: 2002-08-09

2002-06

STATUTE: Drainage Act

HEARING: 2002-07-16

BETWEEN:

CARL KING APPELLANT

‑AND-

THE CORPORATION OF THE CITY OF KAWARTHA LAKES RESPONDENT

CORRECTING DECISION

A hearing was held on July 16 2002 in the Superior Court House at 444 Kent Street West, Lindsay, Ontario to hear submissions by Counsel with respect to a Decision made by the Ontario Drainage Referee dated April 26 2002, but not yet issued. Mr. Courey, Barrister and Solicitor made submissions on behalf of the Appellant and Valerie M’Garry, Barrister and Solicitor, made submissions on behalf of the Respondent.

After the April 26, 2002 decision was mailed to Counsel, Paul Courey on behalf of the Appellant, immediately wrote a letter to the Ontario Drainage Referee dated the 16^th day of May 2002 requesting that corrections be made to that Decision which he characterized as clerical errors. Valerie M’Garry, in a reply to Mr. Courey’s letter sent directly to the Ontario Drainage Referee dated the 29^th day of May 2002, objected to the submitted changes requested by Mr. Courey, characterizing them as substantive in nature and too important to be dealt with by way of correspondence. Both Counsel subsequently agreed that a proper procedure would be to set a hearing date to deal with the issues raised in Mr. Courey’s letter and accordingly such a date was set for the 16^th day of July 2002.

SUBMISSIONS OF MR. PAUL COUREY

Mr. Courey’s first request was rather minor in nature, being an amendment to a phrase attributed to him on page 10 of the Decision dated April 26 2002, wherein he was quoted as follows: “He submitted that it did restrict appeals relating to issues of natural justice or abuse of process, etc.” Mr. Courey submitted that the phrase be amended as follows: “He submitted that it did not restrict appeals relating to issues of natural justice or abuse of process, etc.” Ms. M’Garry did not object to this correction, which she agreed was strictly in the nature of a clerical error.

Secondly, Mr. Courey requested that on page 16 of the Decision dated April 26 2002, the Order be amended deleting the words “all three matters” and replacing them by the words “both matters”. He advised that there had been three files put on the desk of the Ontario Drainage Referee at the Hearings at Lindsay on the 14^th and 26^th days of March, 2002. First was the Appeal of Carl King ‑ Court File 003704, which appeal had been issued on the 17^th day of September, 2001. The second Appeal by Carl King, bearing Court File No. 004140 had been issued the 8^th day of March, 2002. A third matter naming as Applicants, Dr. Susan Terrill, Gordon Durward, Jane Durward, Betty Brower and John Brower, identified as Court File No. 004139 also was issued on the 8^th day of March, 2002.

Mr. Courey advised that there was general confusion by all Parties with respect to the files before the Court at the March Hearings, prompted substantially by the strike of the Provincial Government workers during proceedings. He argued that only two matters ought to have been before the Ontario Drainage Referee for a decision, namely the Appeals of Carl King bearing Court Numbers 003704 and 004140. He submitted the following reasons:

A. Notice of Hearing which was issued by the Municipality with respect to the hearings sent out in February referred only to the Appeal of Carl King, in particular Court File No. 003704. At that time, he pointed out, the originating Notice of Motion involving the Applicants, Dr. Terrill, et al was not even issued. He advised that he consented to permit the subsequent appeal of Carl King, namely Court File No 004139 to proceed at the same time because it involved the same parties and the same issues.

B. Mr. Courey maintained that the only issue that was to be before the Ontario Drainage Referee during the March Hearings was the issue of jurisdiction which that had been arranged by agreement of the Parties. He went on to state that in the Application of Dr. Susan Terrill, et al, the issue was not a narrow legal argument of jurisdiction, but rather involved the calling of witnesses and the presentation of evidence. Mr. Courey advised that he had consented to a Hearing involving a legal argument relating to jurisdiction, but had never consented to have the Dr. Terrill Application heard concurrently. He confessed that Counsel had not satisfactorily clarified matters at the commencement of the Hearing.

C. Mr. Courey advised that there was a major natural justice issue involved if the Application of Dr. Terrill, et al was dismissed because they had not had proper notice of the Hearing and had not had an opportunity to present evidence. He advised that they would have no alternative but to appeal the Decision to the Divisional Court and this would greatly delay matters.

D. Mr. Courey argued that the Hearing dealt with procedural matters and there had not been a decision on the merits of the Application. He added that the Ontario Drainage Referee had broad jurisdiction to deal with procedural matters, both by virtue of the Drainage Act and the Regulations pursuant thereto.

SUBMISSIONS OF MS. VALERIE M’GARRY

Ms. M’Garry agreed that the Ontario Drainage Referee had jurisdiction to make corrections, noting that the Order had not yet been issued by the Court. She advised that she had no objection to the inclusion of the amendment referred to on Page 10 of the Decision by the insertion of the word “not” as requested by Mr. Courey.

Counsel for the Respondent agreed that there was a measure of confusion resulting from a number of factors: (1) the strike of Government Employees; (2) the cancellation of the March 7, 2002 Hearing; (3) the Appeal to the Divisional Court on March 5, 2002; and (4) the issuance of two new matters on March 8.

Ms. M’Garry allowed that before the Hearing date she had been concerned about the status of the originating Motion Application and as a result had telephoned Mr. Courey on March 11 2002 to ascertain the status of the matter. She advised that it was her understanding that he wished to proceed with all matters and for that reason she had dealt with the application for the originating motion in her Factum.

Counsel for the Respondent went on to advise that she considered the. Section 47 motion a subject of jurisdiction, and had not been advised by Mr. Courey even though she had provided him with a copy of her Factum that he did not wish to pursue the Dr. Terrill application.

Ms. M’Garry advised that the Application could have been dealt with during the Hearings and noted that Mr. Courey had not objected when she referred to all three matters in her submissions.

Counsel for the Respondent concluded by stating that the matter had been properly before the Drainage Referee and that the failure of Mr. Courey to provide evidence did not deprive the Referee of jurisdiction. She concluded by stating that the Referee had the authority to review the matter and make a decision clarifying the issues.

AMENDING DECISION

The Referee agreed with Counsel that there was considerable confusion in this matter relating to exactly what issues, appeals and/or motions were properly before the Referee during the March Hearings. The Referee accepts shared responsibility for this confusion which was aided and abetted by many factors.

The first difficulty encountered by the Referee, upon his arrival at the Lindsay Court House, was the fact the Court Office was locked. The Referee did not have access to the file nor to personnel in the office until after 10:00 a. m. at which time the Hearing commenced.

Secondly, because the Court file No. 004140 and file No. 004139 had not been issued until the 8^th of March 2002, the Referee did not have any advance notice of any of these matters.

Thirdly, because the Hearing by the agreement of the Parties, was to deal only with the legal issue of jurisdiction the Referee made the assumption, perhaps unwarranted, that all three matters which had been placed on his desk at the commencement of the Hearing were to be dealt with.

Fourthly, a series of sudden procedural events added to the difficulties, namely an Appeal to the Divisional Court, issuance of two new matters on the 8^th day of March 2002, the postponement of the March 7^th Hearing and the efforts to arrange suitable court dates for all parties during the course of the Strike.

The Referee acknowledges that Counsel for the Respondent did deal in her Factum with the Application of Dr. Terrill, et al, but noted that she had expressed some uncertainty as to the status of that matter.

After considering the above mentioned matters, the Referee concluded that a procedural error had been made. The Referee acknowledges that he did not make any substantive findings with respect to the issues raised in the Application of Dr. Terrill, et al.

It was the Referee’s understanding at the commencement of the Hearing that only a single issue would be dealt with, namely the jurisdiction of the Referee to hear appeals from the Ontario Drainage Tribunal with respect to Section 48 and Section 54 Appeals. There was no formal written agreement with respect to the issues that would be before the Referee, rather matters had proceeded informally by correspondence between Counsel for the Parties.

The confusion which arose, in the circumstances, is understandable and I certainly will not attribute fault to any Party. However, to avoid any breach of natural justice and to ensure that Dr. Terrill and the other Applicants have an opportunity to present their appeal, I will agree to the amendments suggested by Mr. Courey.

ORDER

I THEREFORE ORDER:

1. THAT the correction be made to page 10 of the Decision dated April 26, 2002, so that the second sentence in the second paragraph on that page be amended to read as follows:

“He submitted that it did not restrict appeals relating to issues of natural justice or abuse of process, etc.”

2. THAT the following typographical error be corrected on page 13 so that the fourth paragraph on that page be amended to read as follows:

“The Attorney General maintained in its 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.”

3. THAT on page 16, under the heading ORDER, that the paragraph be amended to read as follows:

“In accordance with the aforesaid reasons, I HEREBY DISMISS the Appeals of Carl King, more particularly referred to in Court File 003704 and in Court File 004139 and that the Appeal of Dr. Susan Terrill, et al, and identified as Court File 004140 be adjourned and be heard at a date agreeable to the Parties, to be set by the Referee.”

4. THAT I will receive written submissions with respect to the issue of costs, such submissions to be received at my office within 35 days of the date of this Amending Decision. However, if Counsel prefers, submissions can be made orally at the Hearing of Dr. Terrill et al in this matter.

5. THAT this Amending Decision shall be attached to and form part of the Decision in this matter dated April 26, 2002.

DATED at Pembroke, Ontario this 9^th day of August 2002.

Delbert A. O’Brien, Q. C.