Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
McLean et al v. Evanturel (City)
2004 ONDR 6
2004-03-23
2004-06
STATUTE:
HEARING:
BETWEEN:
W.E. MCLEAN, CAROL MCLEAN
AND THE ESTATE OF F. POLLOCK
APPELLANT
- AND -
CORPORATION OF THE TOWNSHIP OF EVANTUREL LAKES
RESPONDENTS
Reasons for Judgment
BY THE COURT:
This is an appeal from a decision of the Ontario Drainage Referee dated February 2003 with respect to Municipal Drain Number 4 in Evanturel Township.
As a preliminary matter, a motion to introduce fresh evidence.
He brings the attention of the Court that the engineering expert appointed by the township in this case retained the Referee Mr. O'Brien to provide legal advice to the engineering expert prior to Mr. O'Brien's appointment as a Referee. This retainer occurred in 1992 some three years before Mr. Smart was appointed as the engineer by the township of this case.
We conclude that although the appellant was not aware of this prior professional retainer before the hearing, that the other two requirements for introducing fresh evidence have not been met. See the decision Visagie v. T.V.X. Gold Inc. (2000) 2000 CanLII 5749 (ON CA), 49 O.R. (3d) 198 at 216.
(1) First, the evidence is only tangentially relevant and does not bear upon a decisive or a potentially decisive issue in this appeal. The players in the drainage community are limited in number, and a prior professional retainer is not sufficient to raise a valid issue of bias.
Second, the allegation of bias in these circumstances would not be expected to have affected the results of this appeal. The motion to introduce fresh evidence is therefore dismissed.
With Respect to the appeal itself from the decision of the Referee O'Brien, released February 2003, the appellant raises two grounds of appeal:
(1) That section 15 of the Drainage Act, R.S.O. 1990, c. D.17 requires a "Sufficient outlet" to be provided on the appellant's land.
It is the appellant's submission that section 32 of the Drainage Act does not apply. This section allows a municipality to pay compensation to a land owner for injury to land if in the opinion of the engineer it is not economically feasible to provide a sufficient outlet.
(2) Second, that the report of Mr. Smart, the engineer, should not have been admitted into evidence or relied upon by the Referee as the appellant did not have the right to cross-examine upon the contents of that report.
Standard of Review
Even if the standard of review for the Referee interpreting his home statue, the Drainage Act, having regard to the four part test outlined in Pushpanathan V. Canada (Ministry of Citizenship and Immigration (1998) 1998 CanLII 778 (SCC), 1 S.C.R. 982, is that of correctness, for reasons to follow we find there is no error with respect to the statutory interpretation.
Issue 1. The Relevant Statutory Provisions
Section 15 and 32 of the Drainage Act provide as follows:
Section 15
Sufficient outlet
Subject to section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet.
Section 32
Allowance for damage due to insufficient outlet
Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low-lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low-lying lands in respect of such injuries.
The Referee concluded with respect to the meaning of section 32 that it must be read in light of its intended purpose in the context of the Drainage Act, that is to compensate landowners injured as a result of an insufficient outlet. The Referee read into the meaning of "low-lying lands" in section 32 to mean "downstream" to ensure the intended purpose of the Drainage Act was respected.
He incorporates his reasons dated December 28th, 1998 in his February 2000 reasons as follows:
In my opinion, Section 15 cannot be read independent of Section 32 and the provisions of Section 32 must be given equal weight. Section 32 specifically gives discretionary powers to the Drainage Engineer and an alternate solution to the finding of a sufficient outlet. Common sense requires such an alternate provision because otherwise in many cases the cost of a sufficient outlet would be prohibitively expensive in circumstances where tolerable damages could be sustained and reasonably compensated for.
There was some argument as to whether the subject lands in this matter could be properly defined as "low lying lands". I find that low lying lands refers to lands that might suffer from the flow of water downstream and is not to be interpreted as referring to the elevation of the lands. Consequently, although the damage might accrue indirectly to lands of higher elevation, the cause of damage would be as a consequence of impact of water flows downstream.
In his February 2003 reasons, the Referee elaborates upon this principle, and confirms the purpose of the Drainage Act:
The drafters of the Drainage Act legislation, in their wisdom, recognized that there would be circumstances where the provision of a sufficient outlet was simply not economically feasible. In such circumstances where the need for drainage is imperative, Section 32 provides for damages to be granted to downstream lands where such lands were necessarily injured. The words of the Act are quite clear and they have been followed throughout the Province consistently for many years allowing many important drainage schemes to be constructed in circumstances where a sufficient outlet was not available. This No. 4 Drain is one such circumstance where very valuable upstream agricultural lands require and justify quality drainage in circumstances where the downstream lands (valued at approximately $1,000 per acre) simply do not justify on a cost benefit analysis the type of investments suggested as necessary by the Appellants’ professional witnesses.
We see no error in this interpretation or in these reasons.
Issue 2. Failure to Cross-Examine
Mr. Smart was retained by the municipality to prepare a report pursuant to Section 78 of the Drainage Act.
Although it may have been preferable to allow the appellant the right to cross-examine Mr. Smart on his report, we note that appellant's counsel did not subpoena Mr. Smart to the hearing, nor did he notify the municipality in advance that he wished Mr. Smart to be present at the hearing for the purpose of cross-examination.
Mr. Smart was cross-examined on his report at an earlier hearing, and the appellant had an opportunity to cross-examine Mr. Smart at that time. In these circumstances, we cannot conclude that there was a failure of natural justice.
The essential difference between the report of Mr. Smart and the opinion of Mr. De Vries was whether the erosion had stabilized. The Referee contemplates in his reason that if there are future changes the appellant would have the right to bring a new application. He states in his conclusion:
It is regrettable that this matter has been so long delayed and involved so much costly litigation, the burden of which will fall in large measure upon the shoulders of the upstream farming community. In the future circumstances may change as to justify a re-appraisal.
For these reasons, the appeal is dismissed.
THE COURT: The respondent concedes that the appropriate range of costs is between $12,000 to $15,000 all-inclusive for both, the motion and the appeal. In view of this concession, we fix costs at $12,000 all-inclusive for both the appeal and the motion. In arriving at this amount, we have taken into account, the costs award of this court in cases of similar complexity and length.
Thank you very much counsel for your assistance.