Hayter v. Bluewater (Township), 2004 ONDR 3

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Hayter v. Bluewater (Township)

2004 ONDR 3

DATE OF DECISION:

2004-01-16

2004-03

STATUTE:

Drainage Act

HEARING:

BETWEEN:

2003-11-26

LOIS HAYTER AND W. GLENN HAYTER

APPELLANTS

• AND -

THE COUNCIL OF THE MUNICIPALITY OF BLUEWATER

RESPONDENT

D E C I S I O N

This matter proceeded before the Ontario Drainage Referee in a hearing which commenced on the 27th day of August and after an adjournment continued on the 26th day of November 2003 in the Goderich Court House. Preliminary matters were dealt with in a Procedural Order dated the 4th day of July which resulted from a Pre-Hearing Conference conducted on consent in the boardroom at the law firm of Siskinds in London, Ontario on the 16th day of June 2003. I have set out fully the terms of the notice sent to all assessed owners with respect to the Pre-Hearing Conference as well as the terms of the Procedural Order. The documents not only provide relevant information with respect to the trial proceedings, but also, constitute excellent precedents for future use. Credit is due to the experienced and accomplished legal Counsel who acted in this matter.

PRELIMINARY PROCEDURAL ORDER

“Upon reading the Notice of Appeal and having heard submissions by counsel for the Appellants and for the Municipality, the following Orders are made as to the giving of notice of this proceeding:

Pre-Hearing Conference

1A Pre-Hearing Conference will be convened at the Court House in Goderich at 10:00 a.m. on (date)

2The purpose of the Pre-Hearing Conference will be to deal with preliminary and procedural matters, including the identification of parties, the identification of issues, the starting date of the hearing, the duration of the hearing, the possibility of settlement of any or all of the issues and such other matters that the Referee considers appropriate.

Notice of Hearing

3The appellants will give notice of the Pre-Hearing Conference on or before (date) in the following manner:

3.1 Notice of Pre-Hearing Conference will be in substantially the form attached as Schedule “A” to this Preliminary Procedural Order.

3.2 A copy of the Notice of Pre-Hearing Conference shall be mailed to the Municipality and to all of the owners of lands assessed into the East Branch of the Black Creek Municipal Drain according to the last revised assessment roles by prepaid first class post at their respective addresses appearing as Schedule “B” to this Procedural Order.

Parties

4. The parties to the Pre-Hearing Conference will be

4.1 the Appellants,

4.2 the Municipality

and such other persons as may seek party status at the Pre-Hearing Conference and as the Referee may allow.

5. As indicated in the Notice of Pre-Hearing Conference attached as Schedule “A” to this Preliminary Procedural Order, any person seeking party status may do so at the commencement of the Pre-Hearing Conference. Such persons are requested to give prior written notice of their intention to seek party status to the Corporation of the Municipality of Bluewater at its offices located at 14 Mill Street, Zurich, Ontario N0M 2T0 where the telephone number is (519) 236-4329. Such notice of intention should include a statement of the interest to be represented and an address for service.

6. If any such notice of intention is delivered to the Municipality, counsel for the Municipality shall forthwith file such notice with the Clerk of the Superior Court of Justice in Goderich and provide copies to the Ontario Drainage Referee and to counsel for the Appellants.

Availability of Documentation

7. The following documentation will be made available for inspection by the public during normal business hours at the Municipal offices at 14 Mill Street, Zurich, Ontario:

• C.P. Corbett Report, dated 1972;

• The February 14th, 2002 Decision and Order of the Agriculture, Food and Rural Affairs Appeal Tribunal;

• Letter dated July 3rd, 2002 from Ed Dries, P.Eng., to the Municipality;

• Letter dated July 25th, 2002 from the Municipality to the Tribunal;

• Letter dated September 4th, 2002 from the Tribunal to the Municipality;

• The Hayter’s Notice of Appeal, dated October 4th, 2002.

SO ORDERS THE ONTARIO DRAINAGE REFEREE

Dated at Pembroke, Ontario Mr. Delbert A. O’Brien, Q.C.

ONTARIO DRAINAGE REFEREE

SCHEDULE “A” TO PRELIMINARY PROCEDURAL ORDER

The Ontario Drainage Referee (the “Referee”) will conduct a PRE-HEARING CONFERENCE with respect to the Applicant’s Appeal at (time) on (date) at (place) located at (address).

IF YOU DO NOT ATTEND THE PRE-HEARING CONFERENCE, THE REFEREE MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO FURTHER NOTICE OF THESE PROCEEDINGS.

The Appellants have appealed to the Referee from a decision dated September 4th, 2002 issued by the Agriculture, Food and Rural Affairs Tribunal (the “Tribunal”) with respect to the Tribunal’s February 14th, 2002 decision and Order made in connection with the East Branch of the Black Creek Municipal Drain (the “Drain”).

The circumstances under which the appeal arises may be summarized as follows:

1. The most recent report for the Drain was prepared by C.P. Corbett in 1972. The drain is located in the geographic Township of Hay, it has a length of some 4.65 miles and it outlets into the West Branch of the Black Creek Municipal Drain.

2. The Appellants’ lands assessed into the Drain are on Lots 23 and 25, Concession 7.

3. The Drain was repaired in 1995 to remove beaver dams. In 1996 and 1997 the appellants sought removal of more beaver dams and repairs were made. In June of 2001 the appellants sought the repair of the Drain and in July 2001 they petitioned for a drain works.

4. In July 2001 the Appellants appealed to the Tribunal from Council’s refusal to appoint an engineer. The Tribunal heard the appeal on December 18th, 2001 and issued its decision and an Order on February 14th, 2002. In its pertinent respects, the Tribunal gave the Appellants the option of depositing $6,000.00 as security for a preliminary report and to provide the Municipality with names of engineers who were acceptable to the Appellants to prepare a preliminary report. If this was done, the Municipality was to appoint an engineer from the names provided to prepare a preliminary report. The Tribunal also gave directions as to the content of the preliminary report.

5. The Appellants exercised the option and deposited the money and provided the list of names. The Municipality first appointed one of the named engineers but he resigned. The Municipality approached another of the named engineers, Ed Dries P.Eng. of Togham and Case in Chatham. In July 2002, Mr. Dries corresponded with the Municipality seeking clarification about the contents of the preliminary report ordered by the Tribunal and advising that the work contemplated by the Tribunal could not be completed within the $6,000.00 budget.

6. The Municipality passed Mr. Dries’ communication to the Tribunal for direction. On September 4th, 2002, the Tribunal’s General Manager replied to the Municipality. The reply correspondence required that the $6,000.00 deposit amount to be increased to $11,000.00 and provided direction as to the preliminary report.

7. It is from the September 4th, 2002 supplementary Decision that the Appellants now appeal.

The Appellants request that the September 4th, 2002 supplementary Decision be set aside as an Order of the Tribunal and that the Referee make the following Orders:

8. An Order reducing the security costs back to the original $6,000.00 as set out in the Tribunal’s Order of February 14th, 2002, as the increased amount of $11,000.00 should be considered invalid as having no legal foundation or precedent;

9. An Order restricting the scope of the preliminary report to that as set out in the original Order of the Tribunal dated February 14th, 2002;

10. An Order reinstating the first appointed engineer; or in the alternative, the appointment of an engineer who will provide a preliminary report, costing the amount originally stipulated or according to the requirements of the Drainage Act;

11. A declaration that the Tribunal had no colour of right to make “clarifications” which amounted to a supplementary Order and, if they had the right to do so, they had an obligation to provide the Appellants with an opportunity to respond to any new information relied upon by the Tribunal.

The PURPOSE OF THE PRE-HEARING CONFERENCE will be to deal with preliminary and procedural matters, including the identification of parties, the identification of issues, the starting date of the hearing, the duration of the hearing, the possibility of settlement of any or all of the issues and such other matters that the Referee considers appropriate.

Any person seeking party status may do so at the commencement of the Pre-Hearing Conference. Such persons are requested to give prior written notice of their intention to seek party status to the Corporation of the Municipality of Bluewater at its offices located at 14 Mill Street, Zurich, Ontario N0M 2T0 where the telephone number is (519) 236-4329. Such notice of intention should include a statement of the interest to be represented and an address for service.

A copy of the Notice of Appeal and the following documentation will be available for inspection during normal business hours at the Municipal Offices at 14 Mill Street, Zurich, Ontario.

List of Documents:

· C.P. Corbett Report, dated 1972;” .... etc.

“Dated at Pembroke, Ontario Mr. Delbert A. O’Brien, Q.C.

ONTARIO DRAINAGE REFEREE “

The Pre-Trial Hearing Conference was held in London, Ontario and the following Procedural Order resulted which was issued and dated the 4th of July 2003.

PROCEDURAL ORDER

Upon reading the Notice of Appeal and having heard submissions by counsel for the Appellants and for the Municipality, the following Orders are made as to the giving of notice of this proceeding:

Hearing

4A Hearing will be convened at 9:30 a.m. in the morning of August 27th, 2003 at the County Court House in Goderich at 1 Court House Square in Goderich, Ontario.

5The purpose of the Hearing is to consider the Appellants’ appeal generally, and to consider, in particular, the questions arising from the July 3rd, 2002 letter from Mr. Ed Dries, P.Eng., to the Municipality and the July 25th, 2002 letter from the Municipality to the Tribunal and to consider such other matters that the Referee considers appropriate.

Notice of Hearing

6The appellants will give notice of the Hearing on or before July 10th, 2003 in the following manner:

3.1 Notice of Hearing will be in substantially the form attached as Schedule “A” to this Preliminary Procedural Order.

3.2 A copy of the Notice of Hearing shall be mailed to the Municipality, to the Ausable-Bayfield Conservation Authority and to all of the owners of lands assessed into the East Branch of the Black Creek Municipal Drain according to the last revised assessment roles by prepaid first class post at their respective addresses appearing as Schedule “B” to this Procedural Order.

Parties

4. The parties to the Hearing will be

4.1 the Appellants,

4.2 the Municipality

and such other persons as may seek party status at the Pre-Hearing Conference and as the Referee may allow.

5. As indicated in the Notice of Hearing attached as Schedule “A” to this Procedural Order, any person seeking party status may do so at the commencement of the Hearing. Such persons are requested to give prior written notice of their intention to seek party status to the Corporation of the Municipality of Bluewater at its offices located at 14 Mill Street, Zurich, Ontario N0M 2T0 where the telephone number is (519) 236-4329. Such notice of intention should include a statement of the interest to be represented and an address for service.

6. As also indicated in the Notice of Hearing, in addition, any person intending to adduce professional engineering expert opinion evidence at the Hearing is required to give written notice of their intention so to do to the Municipality at its 14 Mill Avenue offices in Zurich. Such notice of intention must be filed with the Municipality on or before August 13th, 2003 and shall include the name of the engineer, a summary of such engineer’s evidence and copies of documentation upon which such engineer will rely at the Hearing.

7. If any notice of intention is delivered to the Municipality, as contemplated in paragraphs five and six above, counsel for the Municipality shall forthwith file such notice with the Clerk of the Superior Court of Justice in Goderich and provide copies to the Ontario Drainage Referee and to counsel for the Appellants, together with the summary of such engineer’s evidence and copies of documentation upon which such engineer will rely at the Hearing.

8. The Appellants and the Municipality are required to lodge at the Municipal offices on or before August 13th, 2003 a list of the names of the witnesses they will call to give evidence at the Hearing and, in the case of any professional engineering expert opinion, a summary of such engineer’s evidence and copies of documentation upon which such engineer will rely at the Hearing.

Availability of Documentation

9. The following documentation will be made available for inspection by the public during normal business hours at the Municipal offices at 14 Mill Street, Zurich, Ontario:

· C.P. Corbett Report, dated 1972;

· The February 14th, 2002 Decision and Order of the Agriculture, Food and Rural Affairs Appeal Tribunal;

· Letter dated July 3rd, 2002 from Ed Dries, P.Eng., to the Municipality;

· Letter dated July 25th, 2002 from the Municipality to the Tribunal;

· Letter dated September 4th, 2002 from the Tribunal to the Municipality;

· The Hayter’s Notice of Appeal, dated October 4th, 2002;

· A copy of this Procedural Order;

· Copies of any notices of intention filed with the Municipality as contemplated by paragraphs 5 and 6 above;

· The list of witnesses referred to in paragraph 8, above, and summaries of the engineering evidence and supporting documentation as contemplated in paragraphs 6 and 8, above.

SO ORDERS THE ONTARIO DRAINAGE REFEREE

Dated at Pembroke, Ontario Mr. Delbert A. O’Brien, Q.C.

ONTARIO DRAINAGE REFEREE”

Original Order of Tribunal made February 14th, 2002

Is reproduced as follows:

“ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

12. The appeal of Lois Hayter and W. Glenn Hayter is allowed.

13. The appellants shall have 60 days from the date of receipt of this decision to deposit $6,000.00 with the Municipality, as security for the preparation of a preliminary report.

14. The appellants shall have 60 days from the date of receipt of this decision to submit a list of at least four drainage engineers to the Municipality. The list shall exclude all engineers who have worked on this drain or for the appellants.

15. Upon the appellants failing to comply with the previous two paragraphs, the appellants’ appeal is dismissed, otherwise the following procedure shall be observed.

16. Within thirty days of the appellants complying with the previous two paragraphs, the Council of the Municipality shall appoint an engineer to prepare a preliminary report in accordance with Sections 10(1) and 10(2) of the Act to consider the state and improvement of the East Branch Black Creek Drain 1972. The engineer shall be chosen from the list submitted by the appellants.

17. The preliminary report shall include a study of the channel from the Lot 25 - 26 sideroad downstream to a point that provides a “sufficient outlet” for the appellant properties. The design shall be to current land use and drainage standards for the watershed. The report shall include a cost estimate and an approximate distribution of the project cost to the appellants, the upstream landowners and the downstream landowners. The report shall also investigate the various means and capacities of the tile drains transporting water into the drain from the appellants’ properties and make recommendations if necessary.

18. The preliminary report shall be entirely at the expense of the appellants and the deposit shall be applied towards the cost of the preliminary report, with the balance (if any) refunded to the appellants forthwith upon the submission of the preliminary report and account for the same.

19. The cost of the proceedings following the receipt of the preliminary report shall not be at the expense of the appellant, but shall be charged in the normal manner with the right to appeal to the Tribunal or the Referee, as the case may be.

20. For the purposes of proceedings before the Tribunal, this panel remains seized of the matter.

21. In the event that a final report is directed to be obtained, the engineer, in preparing the final report may assess an amount to the credit of the appellants, reflecting any advantage obtained in the final report by reason of the existence of the preliminary report.

22. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Jack Young

Vice Chair

Dated at Gravenhurst, Ontario this 14th day of February 2002.”

The above-mentioned Order was followed by a letter directed to the Agriculture, Food and Rural Affairs Appeal Tribunal from Janisse Zimmerman, Clerk Administrator of the Municipality of Bluewater, which letter was dated July 25th, 2002, and which letter requested clarification of the Tribunal Order. The body of the letter is set out as follows:

“Dear Tribunal Members:

RE: EAST BRANCH BLACK CREEK DRAIN

TRIBUNAL ORDER

Pursuant to the Tribunal’s Order in this matter, Council has appointed E.P. Dries of Todgham & Case Associates as Engineer. Mr. Dries has reviewed the Order and provided a letter, dated July 3rd, 2002, in response to his appointment setting out his interpretation of the work in the Order. He noted in this letter that he does not feel that $6,000.00 will cover the project and that the Tribunal had not set out how any over run would be dealt with. A copy of this letter is enclosed. I have also enclosed a copy of an email from Mr. Dries providing his estimate of the work to be $11,000.00.

Council has instructed me to write to the Tribunal requesting clarification on 2 issues prior to having the Engineer proceed:

1. How should any cost over $6,000.00 be dealt with?

2. Is Mr. Dries’ interpretation of the work ordered by the Tribunal correct?

Thank you for your attention to this matter.

Yours truly,

Janisse Zimmerman, CMO

Clerk-Administrator

/jz

enclosures”

The Agriculture, Food and Rural Affairs Appeal Tribunal responded in a letter signed by Sue Gillespie, General Manager/Secretary in the following terms:

“Dear Ms. Zimmerman:

I am writing in response to your letter dated July 25th, 2002 in which you asked the Agriculture, Food and Rural Affairs Tribunal (formerly the Ontario Drainage Tribunal) to clarify its decision of February 14th, 2002 on the East Branch Black Creek Drain. You indicated the engineer selected to undertake the work ordered by the Tribunal estimated the cost of the work at $11,000.00, rather than $6,000.00 as was anticipated at the hearing on this matter. You asked the Tribunal to clarify its decision with respect to:

1. How should any cost over $6,000.00 be dealt with?

2. Is Mr. Dries’ interpretation of the work ordered by the Tribunal correct?

The panel that decided this matter has instructed me to advise you of the following:

23. The decision of the Tribunal was that the Appellants’ appeal was granted on the condition that the Appellants cover the cost of the preliminary report ordered by the Tribunal and deposit funds with the municipality to secure this payment. As the estimated cost of the preliminary report is higher than anticipated at the time of the hearing, the Tribunal would like to clarify that the Appellants must deposit an additional $5,000.00 with the municipality if they would like the work to proceed. If the appellants do not wish the work to proceed, they are to so inform the municipality and the municipality is to refund the initial $6,000.00 which the appellants deposited with it, less any costs to date which are directly related to the new report.

24. The decision of the Tribunal gives the appointed engineer the discretion to determine what work is required in order to prepare a preliminary report which includes: a study of the channel from the Lot 25- 26 side road downstream to a point that provides a “sufficient outlet” for the appellant properties; a design that shall be to current land use and drainage standards for the watershed; a cost estimate and an approximate distribution of the project cost to the appellants, the upstream landowners and the downstream landowners; and investigation of the various means and capacities of the tile drains transporting water into the drain from the appellants’ properties.

The Tribunal suggests that the engineer consider staging the survey work with the first stage extending from the Lot 25 - 26 side road to perhaps the vicinity of Lot 18. This would determine if a sufficient outlet for the Hayter properties can be obtained within that section of drain without expending funds unnecessarily.

If the engineer decides to stage the work and a sufficient outlet is not obtained in the first stage, then the engineer shall hold a second site meeting after the first stage of the work is completed to give a verbal report on the condition of the existing drain and the sufficiency of outlet at that stage. If a second site meeting is held, the appellants shall be given the opportunity at that meeting to inform the municipality that they no longer wish the work to proceed and the municipality is to forthwith refund to them the balance (if any) of funds they deposited for the purpose of obtaining a preliminary report.

It should be noted that the Tribunal decision did not include an investigation of “the weir on Lot 11" as was suggested in Item 5 of Mr. Dries’ letter.

Also the “other issues raised at the site meeting” (last line of Item 6) should not be included unless they affect the sufficiency of the outlet for the appellant’s properties.

The above is a clarification of the Panel decision. Should any party wish to have a reconsideration of the original decision, then the normal rules of procedure would have to be followed.

Yours truly,

Sue Gillespie

General Manager/Secretary

cc: Lois M. Hayter and W. Glenn Hayter c/o John G. Langlois, Barrister and Solicitor”

The terms of the clarification Order (or supplementary Decision) were challenged by the Appellants Mr. and Mrs. Hayter who filed an appeal to the Referee (the terms of which are set out previously in the Notice of the Pre-Hearing Conference.)

ISSUES

1. Was the Agriculture, Food and Rural Affairs Appeal Tribunal procedurally correct in issuing a clarification Order and/or supplementary Decision in circumstances where it did not provide due notice to the effected parties and provide them with the opportunity to respond in circumstances where the Tribunal appeared to be acting upon new information provided in a letter by the Clerk-Administrator of the Bluewater Municipality.

2. Having heard further evidence from the parties at a full hearing of the matter, should the Referee provide further instructions with respect to the investigations to be conducted in preparation of the preliminary report or ought the preliminary report be abandoned.

3. How should the costs incurred by the Municipality be apportioned and assessed?

4. Should the Referee order the Municipality to pursue a new report pursuant to Section 78 of the Drainage Act relating to the West Branch and the construction of the irrigation gates on Lot 11 Concession 7.

5. As requested by both counsel should the Drainage Referee remain seized of the matter for all future proceedings.

At the commencement of the Hearing it was confirmed that no one had sought “party status” as provided for in the Procedural Order, however, several owners indicated they wish to present evidence at the appropriate time.

EVIDENCE OF THE APPELLANTS

Mr. Langlois called as his first witness the Appellant, Mr. Hayter. Mr. Hayter advised the Court that the relevant property (which his wife owned) served by the drain was Lot 25 and Part of Lot 23, Concession 7. He advised the drain was constructed pursuant to a report made by engineer, C.P. Corbett, in 1972 involving both the east and the west branch of the Black Creek Drain. Subsequently he added, in 1987 a report was completed by engineer W. J. Bartlett with respect to the west branch and at that time the east branch was repaired. In 1992 and 1994 beavers dams were removed from the East Branch by the Municipality after Mr. Hayter complained.

In 1996 Mr. Glenn Hayter requested a repair, but the same was denied by Council after a site meeting was called. A similar request and response were repeated in 1997. In 1998, Mr. Hayter hired Maitland Engineer to conduct a survey of the drain starting at Lot 10, Concession 6 continuing up the West Branch to a junction point with the East Branch and from there up the East Branch to farm culverts in Lot 18 or Lot 17 at Concession 7. In the spring the survey was continued north to Lot 21, Concession 7. In 1999 the Municipality at the request of Mr. Hayter did conduct a complete clean out of the East Branch, but failed to remove vegetative growth from the east side of the bank. Because the drainage contractor at that time did not file with the Municipality, the grade elevations, Mr. Hayter advised that in his opinion work did not conform to the specifications provided by the Corbett Report.

In 2000 a gate (dam) was installed in Lot 11 of Concession 1 with a height of almost five feet for the purpose of creating a pool of water for adjacent irrigation. The gate was not installed pursuant to a drainage report, but rather in conjunction with a letter provided to the Municipality by Engineer W. J. Bartlett.

In the year 2001 the Hayters petitioned for repairs to the drain and when the same was rejected by Council they filed a petition under Section 4 of the Drainage Act for drainage works. The same was rejected and the land owners appealed to the Drainage Tribunal. The Tribunal’s Order followed, dated the 14th of February 2002.

Pursuant to the Order of the Tribunal the Municipality appointed David Grahlnan as project engineer and a site meeting was set up for May 30th on consent with the Municipality. The Hayters did not attend the meeting and were informed that the other land owners had objected to the fact that Mr. Grahlnan had spoken to Mr. Hayter and that they requested that he should be removed from the project. It appears that the Mayor (Reeve) was in attendance and the result was that Mr. Grahlnan was relieved of his position and Mr. Ed Dries appointed as project engineer.

In correspondence with the Municipality Mr. Dries asked for further clarification and advised that the fee for the preliminary report would have to be in the order of $11,000.00. The Clerk then mailed a letter to the Tribunal requesting further clarification (which letter is produced herein) and the result was the issuance of a Clarification Decision. Mr. Hayter then appealed to the Drainage Referee.

In cross-examination Mr. Hayter agreed that he would be satisfied if the drain was put back in the condition it was in 1973 and again in 1987 provided some work was done to repair and/or upgrade the Highway 84 culvert.

David Johnson P. Eng.

Mr. Langlois called as his second witness David Johnson who was qualified to give expert evidence with consent of Counsel by the Court. Mr. Johnson first identified the Plan of the water shed which was prepared for and attached to the report of Bartlett in 1987. Mr. Johnson stated his interpretation of the first Tribunal Order as follows:

“ The Appellants accept the Tribunal Order and met the

conditions within that Order on faith and with the comfort of

expecting a full study of the channel to the point of sufficient

outlet within the cost estimate given. The study was expected

to include the full length of the drain to include the weir structure

in Lot 11, Concession 7 as the existence of the weir had been

fully discussed at the Tribunal Hearing.”

He further advised that in his professional opinion which included an interpretation of Section 10 of the Drainage Act and a reference to a paper dealing with preliminary reports given by H. Todgham P.Eng., that a full elevation instrument survey was not necessary in the preparation of a preliminary report. Mr. Johnson further advised that the clarification statement made suggestions contrary to the intent of the original Order. To provide a sufficient outlet he advised that it was necessary to study the drainage banks, vegetation, grading, culvert sizes, blockages including the weir gate in Lot 11, Concession 7. He noted that the weir gate restricted water flow well upstream and was constructed beyond the limits set in the Bartlett letter. Mr. Johnson concluded by stating that the Clarification Decision severely limited the preliminary report study.

David H. Grahlnan, P. Eng

Mr. Grahlnan was qualified with the consent of Counsel by the Court to give expert testimony. Mr. Grahlnan advised that he was appointed on April 29th, 2002 to provide a preliminary report for the Municipality of Bluewater in accordance with the Order of the Tribunal. He advised that as a first step in the process he had set the date of May 30th, 2002 for a site meeting in Council Chambers. Before doing so he had contacted Mr. Hayter asking him whether or not this date was satisfactory to him. Mr. Hayter advised him that he would not be attending the meeting because the matter had become so adversarial, but he took the opportunity to present his perspective as to what should be done. Mr. Grahlnan made arrangements with him to meet after the meeting. When the meeting convened, he advised that he had spoken to Mr. Hayter and to Mr. Johnson (Mr. Johnson pursuant to the Tribunal Order provided the names of four engineers suitable for the project and in doing so had contacted engineers as to their availability.) Bill Dowson, Mayor objected to this and very adamantly stated that Mr. Grahlnan had compromised his objectivity and could not continue as project engineer. Mr. Grahlnan advised that he subsequently wrote a letter to municipal council on June 14th outlining his views and seeking further direction. Before the letter could be mailed, he was phoned by Clerk/Administrator Mrs. Zimmerman and advised that he had been discharged.

Mr. Grahlnan stated that he thought the sum of $6,000.00 was a fair cost for a preliminary report and he was of the opinion that it could be done for that. On cross-examination he advised “my sort of rule of thumb is that you can survey two kilometers a day and that would represent two and a half days of survey for which you should budget a $1,000.00 a day for that work, so you would accrue $2,500.00 in survey costs. Now that would leave you $3,500.00 to do everything else. Mr. Grahlnan maintained in cross-examinations that he still had not determined whether a full survey would be required.

EVIDENCE OF THE RESPONDENT

Janisse Zimmerman, Clerk/Administrator

The Clerk/Administrator advised that in 1996 the Appellant had submitted a petition for maintenance and the drainage superintendent had been instructed to take the necessary steps. He had inspected the site and found beaver dams to be present and arranged for the removal of the dams. Later in 1996 the drainage superintendent had called a site meeting which Mr. Hayter did not attend. The other owners advised that they were satisfied with the condition of the drain and it was decided that no further work would be done. In 1997 after a further petition by Mr. Hayter a new drainage superintendent Mr. Haggit examined the drain and found that it was silted very little. He observed that the appellants’ outlet tile had nine inches of free board. A site meeting was called and the other owners advised that they were satisfied with the condition of the drain. Mr. Haggit walked the drain and found beaver dams at the bottom end which he removed together with some rock obstructions.

Once again, in July of 1999 Mr. Hayter submitted a petition for repair. The Drainage Superintendent Pat Haggit was instructed to investigate and he reported that the drain needed a clean out. A site meeting was held and a majority of the owners indicated that they were satisfied with the present condition of the drain. However, Mr. Haggit proceeded with a bottom clean out to the grades of the 1972 Corbett report. After the work was done the excavating company VanDriel provided a letter to the Municipality stating that the grades were in accordance with the grades set out in the 1972 report.

Once again, in June of 2001 Mr. Hayter submitted a further petition to have the drain repaired (cleaning of bush and vegetation) Mr. Haggit once again walked the drain and in his opinion the water was not being held back and that removing the vegetation might provide potential for erosion. Council therefore decided no further action should be taken. In July the Hayters’ submitted the second petition and when Council determined not to act further he appealed to the Tribunal.

The Clerk advised that there was confusion at the Tribunal proceedings when they tried to determine whether the Hayters had made a request pursuant to Section 74 for repair or filed a petition under Section 4 of the Drainage Act. Mrs. Zimmerman pointed out that the Tribunal had concluded that “Council was entirely proper in refusing to appoint an engineer.”

The Administrator further advised that after the Tribunal Decision Mr. Hayter had paid $6,000.00 to the Municipality and had provided the names of four engineers. The Municipality approached David Grahlnan and a site meeting was scheduled for May 30th. Mrs. Zimmerman advised that after the on site meeting Mr. Grahlnan offered to resign and Council accepted his resignation. The Municipality then approached Mr. Ed Dries to request that he prepare the preliminary report. After receiving a letter from Ed Dries raising certain issues, she stated she forwarded a letter to the Tribunal asking for further clarification. The Tribunal’s clarification letter which was received on September 4th, 2002 was appealed to the Referee by the Hayters.

Mrs. Zimmerman advised that by the end of July 2003 the legal and engineering costs for the Municipality amounted to $6,727.79. She requested that the Referee give further directions and perhaps review the Tribunal’s decision with respect to how further costs should be accommodated. She concluded by advising that the fee of Mr. Grahlnan for his work was in the sum of $1,938.84.

Edward Dries, P. Eng.

Mr. Dries with the consent of Council was qualified as an expert by the Referee. Mr. Dries commenced by advising that the issue relating to the installation of the gate (dam) in the West Branch of the drain should be separated from the issues relating to the East Branch. He suggested that a report could be prepared pursuant to Section 78 dealing with the issues arising from the installation of the structure. He was of the opinion that it was within the jurisdiction of the Drainage Referee to make an Order directing the Municipality to retain an engineer and prepare a report pursuant to Section 78. The report would deal with the issue of whether or not the structure constituted an obstacle in the drain. He confirmed that in his opinion the letter provided by W. J. Bartlett for the Municipality with respect to the gate (dam/structure) had no status pursuant to the Drainage Act. Mr. Dries went on to confirm that in his opinion the sum of $11,000.00 was appropriate with respect to the preparation of the preliminary report. Mr. Dries stated that if the finding of the preliminary report was that further work should be done then Mr. Hayter could receive a credit reflecting any advantage obtained for the final report by reason of the existence of the preliminary report work. The Drainage Engineer noted that the Clarification Decision of the Tribunal suggested that the engineer consider staging survey work. The first stage extending from Lot 25, 26 Side Road to perhaps the vicinity of Lot 18 to determine if a sufficient outlet for the Hayters could be obtained. Thereafter, a second site meeting would be called before any further work would be done. He advised that he was of the opinion that a survey was required. A late fall or early spring time period would save considerable costs. Mr. Dries was of the opinion that it was important to investigate the extent to which the gate (dam) affected upstream owners, including owners on the West Branch, but the issue should be separated. Mr. Dries went on to advise that Section 40 might be resorted to and was of the opinion that it should be used more frequently. Mr. Dries pointed out that preliminary reports terminated pursuant to Section 40, where an engineer determines that a project is not justified, and pursuant to Section 78, when a Council decides that a project is not practical raise issues with respect to cost recovery. Sections 10(4) and Section 43 which provide for cost recovery do not specifically apply to Sections 40 in refusal, or a Section 78, refusal to proceed. Mr. Dries pointed out that the matter should be resolved by the Court and noted in present case that the Tribunal had treated this matter as falling within Section 78 but had then attempted to attach the costs to the Appellant. The question arises who will pay any excess and an Order by the Referee in this respect would be helpful. Such an Order would be valuable for other cases as well. Mr. Dries suggested also that the Referee might give some direction to Municipal Council as to what would be appropriate reason for refusing to proceed with a Section 78 request.

Mr. Dries reviewed the summary of evidence provided by the Patrick S. Haggitt the Drainage Superintendent which outlined his field investigation of the drains. It disclosed that Mr. Haggitt had conducted a survey of both the East and West Branch from Highway 84 downstream in both drains to the gate (dam/ structure). The results indicated for the East Branch (except for a short distance where cattle passed through the drain) that the current bottom of the drain was below the designed grade. For the West Branch from the junction of the East Branch and West Branch downstream the current bottom was also below the designed grade. Mr. Dries observed this information was very useful and more authorative than in a previous letter from the drainage contractor. The survey also indicated that the bottom of the drain at the junction of the East and West Branches was at exactly the same grade as the top of the gate/dam structure. In the cross-examination Mr. Dries advised that without further analysis he could not give an opinion as to whether or not the gate (dam) caused a back up in the East Branch. Mr. Dries concluded by stating that problems could arise if an effort was made to remove all vegetation as set forth in the 1972 report because of environmental concerns and the possible intervention of the Department of Fisheries and Oceans.

Patrick Haggitt Drainage Superintendent for the Municipality of Bluewater

Mr. Haggitt confirmed that he had at the request of Counsel for the Respondent undertaken a survey of both the East and West Branches of the drain from Highway 84 southerly to the gate (dam). He confirmed that the bottom of the drain except for an area in the East Branch where the cattle passed through was below the designed grade. With respect to the West Branch the bottom of the drain was below the designed drain from the junction of the East and West Branch down to the gate (dam structure). Mr Haggitt confirmed that he found that the grades given by the contractor for the drain in 1999 were correct. Mr. Haggitt reported that after Mr. Hayter had submitted a petition to have the drain repaired in June of 2001 that he had walked the drain and found the condition of the drain “did not appear to be causing water to be held back or preventing the drain from operating satisfactorily.” He stated that he was of the opinion that having the brush removed would make the banks less stable. Council accepted his recommendations and no further work was done. In July of 2001 Mr. Hayter submitted a second petition and Mr. Haggitt once again advised Council that nothing further should be done noting that no other owner had expressed any concern. As the result Council took no further action.

ASSESSED LANDOWNERS

Grant Love

Mr. Love advised the Court that he owned seven properties fronting on the East Branch of the drain, three upstream of Mr. Hayter, one in between and three farms downstream from the Hayter property. He advised that his property adjacent to the Hayter property was tile drained and that he encountered no drainage problems. He advised that Mr. Hayter had constructed a berm along the drain to intercept surface water with the result that all water on the Hayter property had to enter the drain through the underground tile. It was his opinion that this restriction with respect to surface flows was overloading the Hayter subsurface tile system. He advised that Hayter never attended any site meetings which resulted in the matter being dragged out. In his opinion the drain in its present state was working quite well.

John McAllister

Mr. McAllister advised that he was having no problem with the drain. He advised that the beaver dams had to be taken care of near the Hayter property on a regular basis. He indicated that he used grass waterways to channel surface waters into the drain.

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS

Mr. Langlois stated that there were four or five matters that had to be addressed by the Referee as the result of the Clarification Order of the Tribunal. First was the matter of the extent of the investigation to be conducted for the preliminary report in particular whether it was to continue downstream to include the examination of the impact of the gate (dam) in Lot 11, Concession 7. The first Order had suggested an examination of “sufficient outlet” and the clarification had apparently retreated from an investigation of the impact of the gate (dam structure). He noted that Mr. Dries had recommended that the impact of the structure ought to be examined. Secondly, he was of the opinion that the dam structure ought to be incorporated officially into the drain by an authorized report. In short, it ought to be brought under the control of the Municipality because presently it constituted a private, irregularity in the drain. He noted that private dredging must have taken place below grade upstream of the dam structure and that the culvert to which the gate was attached had been installed deeper then provided in the engineer’s letter. The sizing of the culverts in the West Branch he considered to be an issue. Thirdly, Mr. Langlois suggested that the specifications in the Corbett Report ought to be maintained . He noted the fact that the East Branch had been excavated below grade that the culvert under Highway 84 was not adequate. Fourthly, he urged that Mr. Grahlnan be reappointed. He advised that Mr. Grahlnan had indicated that the preliminary report could be completed for a cost of $6,000.00. He noted that excess costs were a major issue and should be addressed by the Referee although consideration ought to be given to the survey work that had already been accomplished. Fifthly, he advised that the Tribunal ought not to have changed the Order without having giving notice to the parties affected and providing them with an opportunity to present evidence. Such action by the Tribunal was a serious breach of natural justice and accordingly the Supplementary Decision ought to be set aside.

RESPONDENT’S SUBMISSIONS

Mr. Wright commenced by skillfully outlining the basis for the Referee’s jurisdiction to deal with this matter. He referred to Section 106 which granted original jurisdiction to the Referee particularly referring to subsection (1)(f):

Section 106 (1) reads as follows:

“The Referee has original jurisdiction...”

Section 106 (1)(f) reads as follows:

“Over any other matter or thing in relation to which an application

may be made to him/her under this Act.”

He noted however, that subsection (2) which granted the Referee jurisdiction to hear appeals from decisions of the Tribunal was limited by the terms of Section 101. In that regard he made the following comments. The Tribunal had assumed authority to deal with this matter because the appeal of the Appellants was pursuant to Section 4 of the Drainage Act. Accordingly, the Tribunal assumed jurisdiction pursuant to Section 5(2) of the Drainage Act. However, they went on to find (although the validity of the petition is within the jurisdiction of the Referee) that the petition was not properly framed and in fact concluded that the Appellants did not really intend to be within Section 4 of the Act. The Tribunal then went on to find that the petition was not really raising issues of repair, but rather was a proceeding under Section 78 of the Act. The Tribunal stated “there is no specific wording regarding the jurisdiction of the appeal with respect to the Municipality not going ahead with an improvement under Section 78.” Having drawn that conclusion, the Tribunal then proceeded to found its jurisdiction on the general wording of Section 51(1) and the “intent of the Act.” Mr. Wright proceeded to state that the Tribunal should have treated the matter as an application for review of the decision under Section 29 of the Tribunal’s Rules. If the Tribunal rules had been applied, the Tribunal would have asked the Municipality to make preliminary submissions directed to the standards and criteria set out in the Tribunal’s rules. The result would certainly have provided for notice to the Parties of Record. Mr. Wright conceded that on behalf of the Municipality the Tribunal failed to follow its own rules and lost sight of the principals of natural justice.

Mr. Wright then went on to advise the Referee that whether the Tribunal’s decision was based on section 5(2) of the Drainage Act or as they indicated on Section 51 or Subsection 21.1(2) of the Statutory Powers of Procedure Act (power to review its own decision), that neither section was referred to in Section 101 of the Act. Therefore he concluded that the Referee has jurisdiction to hear this appeal from the decision of the Drainage Tribunal. Mr. Wright went on to say that because the Tribunal had acted on information contained in the letter from the Municipality, which was in the circumstances new evidence, it opened up the whole matter to review by the Referee. Mr. Wright further went on to note that both he and Counsel for the Appellants made a joint submission to the Referee to remain seized of the matter so that all further decisions would be made in the Court of the Referee.

Mr. Wright then advised that in his opinion the appeal should be allowed and the decision set aside. He further submitted that the Referee should rehear the matter dealing with the new evidence presented by Mr. Dries. He suggested that such new evidence would have made a difference had it been available to the Tribunal. He proceeded to state that all the evidence was before the Referee thus permitting a new decision.

Mr. Wright went on to make the following recommendation:

25. He urged that the Referee decide that it was not necessary in all the current circumstances to a have Preliminary Report prepared. He gave the following reasons in support of that decision namely, the drain was working satisfactorily as confirmed by two adjacent owners Mr. Love and Mr. McAllister. Further the drain was fully cleaned out in 1999 and recent surveys confirm that the design was achieved and perhaps over achieved. He noted that Mr. Hayter had advised that he would be satisfied if the drain was restored to its capacity in 1973 and 1987. Mr. Wright submitted that the gate (dam structure) did not present an obstacle noting that the fall from the Hayter property to the junction of the West and East Branch was approximately ten feet and that there was another five feet of fall from the junction to the dam structure. He noted that Mr. Hayter had constructed a berm adjacent to the drain to intercept surface waters and in doing so he was the author of his own drainage problems. The Tribunal had determined that the Municipality had acted properly, but found that the appointment of a drainage engineer to prepare a preliminary report was justified in the public interest only if Mr. Hayter was to pay the full cost. Now, however, the costs were escalating and Mr. Hayter was not prepared to pay the full costs. Therefore in consideration of the above-mentioned facts, Mr. Wright urged that the appeal be granted, but that an Order be made dispensing with the need for a Preliminary Report..

26. In the alternative, Mr. Wright made the following recommendations:

a) He conceded that the Referee had jurisdiction to make an Order pursuant to Section 78 recommending that a report be made with respect to the gate (dam structure). He was of the opinion that at the present time such an Order was premature particularly because none of the property owners in the West and East Branch would have had any notice of such matter and also technically because the West Branch was not properly before the Referee. Mr. Wright noted that it was not practice in every situation to have a report prepared for a private installation on a drain, providing it did not cause an obstruction.

b) With respect to the East Branch Mr. Wright advised that if the Referee decided to appoint an engineer that the theory of the Tribunal decision be followed namely that the costs be paid by the Appellant, Mr. Hayter. Mr. Wright advised that Mr. Hayter should be required to deposit the $11,000.00 and that any surplus ought to be returned to Mr. Hayter. He urged that Mr. Dries be retained to do the work and a full survey ought to be done (Mr. Dries and Mr. Johnson both recommended a survey and Mr. Grahlnan was not sure). Mr. Wright urged that if a drainage engineer was appointed that he be required to examine the Hayter drainage system. Finally, Mr. Wright urged that the engineer be directed to consider Section 40 of the Act and that an apportionment and the collection of the costs be reserved to the Referee. If the preliminary report proposed an upgrading of the drainage condition, he recommended that a preliminary sketch of the costs be prepared and an assessment schedule be produced and that all appeals be directed to the Referee. Mr. Wright concluded by requesting that the Referee reserve on the matter of costs.

FINDINGS

27. The Referee having heard all of the evidence concluded that the Agriculture, Food and Rural Affairs Tribunal acted improperly in issuing a Clarification or Supplementary Decision in circumstances where they did not notify the parties in the original hearing of their intention and in its receipt of new evidence upon which they apparently acted. The Supplementary Decision was substantive, the parties affected thereby ought to have had an opportunity to be advised thereof, make submissions and perhaps be granted a further hearing. In this case it appears that the Tribunal did not follow its own rules with respect to the review of a decision and simply was in breach of the basic rules of natural justice. The Referee has jurisdiction because the decision appeared to be based on either Section 5(2) or Section 51 of the Drainage Act.

28. The Referee has conducted a full hearing in this matter and has received essentially the same evidence that was presented to the Tribunal plus additional significant evidence. In particular the Referee had the benefit of evidence by Mr. Ed Dries and the Drainage Superintendent, Mr. Haggitt. The Drainage Superintendent in particular was commissioned by Mr. Wright previous to the hearing to go out and conduct survey work which served to remove much of the uncertainty with respect to the condition of the lower portions of the drain. The Referee has come to the conclusion that the drain is in a reasonable state of repair in its current condition and that further expenditure at this time is not warranted with respect to the East Branch. Accordingly, the Referee has decided that the appointment of an engineer to prepare a preliminary report is not at this time justified. The Referee was influenced in coming to this decision by many factors particularly the following:

a) In his evidence Mr. Hayter indicated that he would be happy if the drain was restored to the condition of 1973 and 1987. It must be noted that he did qualify his statement by his concerns with respect to the culvert at Highway 84 and the trees and brush that had not been removed on one side of the drain in the 1999 cleaning.

b) In its initial decision the Tribunal stated “The tribunal finds that with the 1999 clear out the drain is in substantial repair.”

c) The adjacent assessed landowners namely, Mr. McAllister and Mr. Love, stated unequivocally that the drain was in satisfactory condition and was providing them with good drainage. They objected to any further work being done on the drain.

d) The Drainage Superintendent, Mr. Haggitt, provided very creditable evidence to the effect that the drain was in good condition and provided elevation grades to establish that the lower end of the drain exceeded the specifications in the old 1972 Report.

e) The original Tribunal decision was premised on the concept that the Mr. Hayter, the Appellant would pay for the entire cost of the preliminary report. That amount was set at $6,000.00. Mr. Hayter responded and paid the deposit of $6,000.00 on the understanding that he would have the advantage of a preliminary report. However, the Supplementary Decision increased that amount to $11,000.00 without consulting with the Appellant. Mr. Dries advised it might cost considerably more. Mr. Hayter was justified in objecting to these changes at his expense. The Tribunal reached a positive decision with respect to a preliminary report on the understanding that Mr. Hayter would pay the full cost. The converse of that theory is that it would not be in the public interest if Mr. Hayter did not pay the full cost. Consequently, with Mr. Hayter objecting to paying more it is reasonable to conclude that in the present circumstances a Preliminary Report is not justified.

3. The Referee was impressed with the testimony of Mr. Dries who indicated that the gate (dam structure) ought to be investigated, but that the process should involve a Section 78 report independent of the preliminary report involving the East Branch. The structure was installed without a full report and therefore remains a private structure in the drain outside of the control of the Municipality. Further, it appears that the structure has exceeded the specifications suggested by Mr. Bartlett in his letter to the Municipality which letter also contemplated that it would only be a temporary structure. A report should not prove to be costly if shared by all of the owners in the both the West and East Branch. The results of such a report would remove the uncertainty which has disturbed upstream owners and would allow for remedial action if necessary. I therefore have come to the conclusion that a separate report would be in the interest of all the assessed owners. The Referee in making an Order that the Municipality appoint an engineer pursuant to Section 78 to investigate the impact of the structure on the performance of the drain will allow an opportunity for any assessed owner to file an appeal with respect to that decision to the Referee.

4. Although the Referee after hearing the evidence has come to the conclusion (as did the Tribunal) that the drain in substantially in good repair in accordance with the specifications of the 1972 Corbett and the 1987 Bartlett reports, it appears that there was some uncertainanty in three areas with respect to the state of repair. These were as follows:

a) The area where cattle have access to the drain causing the tramping of the slopes;

b) The Culvert at Highway 84 which may be in a state of disrepair including the low level culvert; and

c) The remaining vegetation and brush on one side of the drain which was not removed in the 1999 clean out.

These three concerns are apparently a matter of repair and ought to be attended to by the Drainage Superintendent. The Drainage Superintendent’s appeared to be well qualified for the purpose of attending to these matters.

5. Having heard the evidence the Referee is of the opinion that the Mayor and Council together with the other owners who attended the site meeting were unreasonable in their actions of insisting that Mr. Grahlnan be removed as the appointed engineer. His replacement appears to have greatly increased the cost of the proposed preliminary report. As a result, it would be unfair to deduct from the deposit filed by Mr. Hayter of $6,000.00 the fee of Mr. Grahlnan which in the circumstances should assess to all assessed owners on the East Branch.

6. The Referee concurs with the submissions made by both Counsel that the Referee remain seized of this matter and as a consequence the Referee will be available to deal with subsequent matters including all costs and the assessment of the same.

ORDER

1. The Referee Orders that the Appeal be allowed and the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated the 14th day of February, 2002 together with the Supplementary Decision dated September 4th, 2002 be set aside. Consequently the Preliminary Report will not proceed further.

2. That the $6,000.00 deposit held by the Municipality paid by the Appellant, Mr. Hayter, be held by the Municipality until such time as the Referee determines whether it will be returned or what portion thereof after submissions are received at a further hearing at which time the Referee will deal with all cost issues. A time for such a hearing will be set after consultations with Counsel.

3. That the Municipal Corporation of Bluewater proceed to appoint the drainage engineer of their choosing to prepare a drainage report pursuant to Section 78 of the Drainage Act to investigate the impact of the private drainage structure described as the gate (dam) in Lot 11, Concession 7 of the West Branch with a view to enacting a By-Law to legalize the existence of the structure. This portion of the Order shall be sent to all assessed owners advising them that if they disagree with the terms of this Order they will have an opportunity to appeal and have the matter reviewed by the Drainage Referee at a time and place fixed for the hearing. Such a notice is to be prepared by counsel for the Respondent and forwarded to the Referee for approval at which time it will include a time, place and date for the proposed Hearing.

4. That the engineering fee David Grahlnan P. Eng., be paid by the Municipality which sum may be recovered either as part of the regular repair account or by special By-Law authorized by this Order.

5. All further proceedings in this matter will be conducted by the Drainage Referee.

6. Legal costs in this matter shall be reserved to be settled at a special hearing referred to previously.