ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
GRCA v. Wellington (Township)
2009 ONDR 4
DATE OF DECISION:
2009-06-16
2009-04
STATUTE:
HEARING:
BETWEEN:
GRAND RIVER CONSERVATION AUTHORITY
APPELLANT
- and -
THE CORPORATION OF THE TOWNSHIP OF WELLINGTON NORTH, ALFRED WILSON
RESPONDENTS
O R D E R
These Motions made by Counsel, initially heard on February 27th, 2009 resulting in an Order of the Referee dated March 3rd, 2009, which among other matters ordered the resumption of the Motion heard February 27th, 2009 be continued by teleconference the 27th day of April, 2009. With the consent of parties, a further continuation of this Motion was made on the 15th day of April, 2009 by teleconference.
AND WHEREAS a further Motion was made on April 7th, 2009, on behalf of the Grand River Conservation Authority, requesting leave to allow the Appellant to give notice to the Council of the Respondent, the Corporation of the Township of Wellington North, requesting an environmental appraisal pursuant to s. 6(1) of the Drainage Act and other matters.
AND UPON hearing the submissions of Council for the parties on April 7th, 2009 and April 15th, 2009.
AND UPON hearing the further submissions of K.A. Smart P. Eng. of K. Smart and Associates Limited on April 15th, 2009 with regard to the Motion for the environmental appraisal pursuant to Section 6(1) of the Drainage Act.
THIS COURT ORDERS THAT:
There shall be an environmental appraisal undertaken on the West Luther Drain 63 on proposed Branches A & A1, at the request of the Grand River Conservation Authority.
The Appellant and the Respondents shall produce all material relevant to such environmental appraisal in their possession as of April 30th, 2009.
The Respondent Alfred Wilson and the Appellant shall exchange such documentation, while the Corporation of the Township of Wellington North shall make such documents available for review by the Respondent, Alfred Wilson and the Appellant at its premises and at the offices of its Engineer, K. Smart Associates Limited.
On or before May 15th, 2009, proposals regarding the draft terms of reference for the environmental appraisal shall be provided to K. Smart Associates Limited and to each of the parties to this action.
On or before May 29th, 2009 K. Smart Associates Limited shall provide to the Appellant, the Respondents and to the Referee draft terms of reference having regard to the proposals submitted to it.
The Referee shall provide written Reasons for Decision in ordering such appraisal despite notice not having been received, pursuant to s. 5(1) and s. 6(1) of the Drainage Act.
DATED at Strathroy, Ontario this 16th day of April, 2009.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE
REASONS FOR DECISION
The Referee has heard a number of Motions by Counsel above and with attendance of the Engineer, Kenneth Smart on April 15th, 2009, which Motions occurred December 10th, 2008, February 27th, 2009, March 3rd, 2009, April 7th, 2009 and April 15th, 2009 at the Superior Court of Justice in Guelph and by teleconference. These Motions were initially made as a result of issues, which arose before the Agriculture, Food and Rural Affairs Appeal Tribunal in a hearing in which concerns were expressed regarding prematurely proceeding with an appeal under s. 49 of the Drainage Act R.S.O. 1990 c.D.17 while an appeal was outstanding to the Referee under s. 47.
After the initial Motion requesting direction as to the procedures to be used in preparation of a trial of the issues was made by the Solicitors for the Petitioner, Alfred Wilson, the Grand River Conservation Authority brought two further Motions. One was held in chambers at the Superior Court of Justice Guelph on February 27th, 2009. A second Motion, presented at a teleconference, requested leave to permit the Appellant, Grand River Conservation Authority to give notice to the Corporation of the Township of Wellington North requiring an environmental appraisal in accordance with Section 6 (1) of the Drainage Act.
While this Motion was clearly out of time, a continuation of this teleconference motion was granted at which K.A. Smart P.Eng., the engineer in connection with the West Luther Drain 63, Branches A and A1 as described in the report of August 20th, 2008 was in attendance. At the continuation, I ordered an environmental appraisal be undertaken and required certain time frames within which there would be an exchange of documentation and the supply of proposals for draft terms of reference for the environmental appraisal. The Engineer, K.A. Smart, provided draft terms of reference on or about May 29th, 2009.
In ordering this course of action, the Referee is mindful of the formal procedural requirements of the legislation, but in the exercise of the powers of the Referee, pursuant to s. 106 (1) (d) and (f), I am of the opinion that the purpose and the process of the Drainage Act would be thwarted if such order were not granted while the appeal of the Grand River Conservation Authority under Section 49 of the Drainage Act is held in abeyance at the Agriculture, Food and Rural Affairs Appeal Tribunal, hereinafter the “Tribunal”. The scope and the intent of the legislation is such that the lack of an environmental appraisal would impede the decision making of the Referee and might further limit the information before the Tribunal, were it to eventually hear the appeal of the Grand River Conservation Authority under Section 49 of the Drainage Act. The following Sections of the Drainage Act are relevant to the deliberations of the Referee:
s. 6(1) Upon receipt of a notice from the initiating municipality under subsection 5(1), a local municipality, conservation authority or the Minister of Natural Resources, as the case may be, may send to the council of the initiating municipality within thirty days a notice that an environmental appraisal of the effects of the drainage works on the area is required, and the cost thereof shall be paid by the party who requested it.
s.6(3) The party requesting the environmental appraisal or the council of the initiating municipality, as the case may be, within forty days of receiving the account therefore, may appeal to the Tribunal, and the Tribunal may confirm or vary the account as it considers proper.
s. 10 (1) Where the council of the initiating municipality deems it expedient, it may or if it has received notice under section 6 that an environmental appraisal is required, it shall instruct the engineer to prepare a preliminary report containing a sketched plan of the drainage works and an estimate of the cost thereof in so far as it is practicable to do so, and which shall include the environmental appraisal, if any, and the benefit cost statement, if any, and the engineer shall forthwith prepare and file such a preliminary report with the council.
s. 10 (2) Upon the filing of the preliminary report, the council of the initiating municipality shall cause the clerk to send a copy of the preliminary report and a notice of the date of the council meeting at which the preliminary report will be considered, to,
(a) every owner of land within the area requiring drainage as determined by the engineer or described in the petition, as the case may be;
(b) any public utility or road authority that may be affected by the drainage works;
(c) any local municipality and conservation authority entitled to notice under section 5 or, if no authority is entitled to notice, to the Minister of Natural Resources; and
(d) the Minister.
s. 10 (7) Where any party mentioned in clause (2) (a), (b) or (c) is dissatisfied with the environmental appraisal, an appeal lies to the Tribunal.
It should be noted with regard to these Sections that as the Grand River Conservation Authority will be bearing the costs of the environmental appraisal, it has a right of appeal to the Tribunal as to the account for such environmental appraisal Section 6(3).
A further problem is encountered in that Section 10(1) mandates a preliminary report in a matter where there already exists a Report dated August 20th, 2008 on West Luther Drain 63, Branches A & A1.
It should be further noted that the appeal with regard to any dissatisfaction with the environmental appraisal lies to the Tribunal. Whether the parties wish to take these steps or leave the matter in the hands of the Referee as part of the wider grounds contained in Section 47 will be left to the discretion of the parties going forward with this matter.
The Referee is mindful of a series of decisions which occurred with a project similar in nature to the one proposed for this drain. I refer the parties to a series of Decisions of the Referee Delbert A. O’Brien on Court file number 99-CV-161877 Robwildon Limited, Plaintiff, The Corporation of the Township of Ramara, McCarthy Land Improvements, Lafarge Canada Inc., Ike Meyers and Joseph Harrigan, Defendants, an Order and Decision dated December 5th, 2002 under the style of cause Diether Carlos Dabis and Christine Kaiser-Reid, Plaintiffs, and the Corporation of the Township of Ramara, McCarthy Land Improvements, Lafarge Canada Inc., Ike Meyers and Joseph Harrigan, Defendants. There were additional decisions dated June 14th, 2002 under the Robwildon style of cause with further Reasons for Decision under the same style on December 2nd, 2002. Finally an Order was given on August 25th, 2004. In this series of decisions, despite the fact that the Engineer had received the opinion of the Township of Ramara legal advisors that the project was exempt from the Environmental Assessment Act, and despite the fact that in his Order the Referee placed a caveat that negotiations should occur with the Ministry of Environment; the Ministry of Environment through the Director ordered remedial work, and preventative measures on August 13th, 2004.
In a Decision of the Environmental Review Tribunal under Case number 04-095-04-096, the Corporation of the Township of Ramara and Lafarge Canada Inc. v. Director, Ministry of Environment, the appeals of both the Township and Lafarge regarding the Order of the Director were withdrawn. Ramara, as required by the Order, was to submit an application to the Ministry of Environment seeking a Certificate of Approval under the Ontario Water Resources Act, 1990, c.0.40. The argument that had been brought before the Referee through the Counsel for the Municipality was that a Certificate of Approval was not required citing an exemption, Section 53 (6) (d):
“To a drainage work under the Drainage Act or sewage work where the main purposes of the work is to drain land for purposes of agricultural activity.”
It would appear that the grounds of appeal before the Environmental Review Tribunal were that the lands being drained were still substantially available for agricultural activity. However, it was obvious from the evidence before the Referee that there would be a conversion of the agricultural portion of the lands over time to an industrial use.
While the Drainage Act provides a useful mechanism in mixed use areas where there is residential, urban/industrial land mixed with agricultural lands on which a drain exists to expeditiously deal with these combined storm water management issues; s. 83 of the Act provides the guiding principle to the Referee in that it states: s. 83(1):
Except as authorized by a by-law of the initiating Municipality, approved by the Ministry of Environment, no persons shall discharge or deposit or permit to be discharged or deposited into any drainage works and liquid, material or substance other than unpolluted drainage water.
In the Decision of Referee Delbert A. O’Brien, dated June 14th, 2002 cited above he states:
Finally, the proposal that the storm water management facility on the Township Industrial Property be assessed only to the lands and roads that contribute water to the facility is not equitable. The major purpose of a storm water management facility is to protect downstream flows and is a benefit to downstream land owners who are not obligated to increase the capacity of the drainage system adjacent to their properties. A storm water management facility is a rather modern concept and fortunately the working of the Drainage Act allows for flexibility permitting downstream assessment.
I find that it would be an abuse of process of the scheme contained within the Drainage Act if prior to continuing with the West Luther Drain, no environmental appraisal was received, given that the Ontario Municipal Board has indicated requirements in an order on file number TL070333 issued June 11th, 2008 on an appeal of an official plan and rezoning to change the Wilson property from Agriculture A to Extractive Industrial EI for the establishment of a Class A quarry. The Board ordered that drainage matters need to be settled. It becomes obvious that the ultimate use of the property is not to be agricultural, although the current use appears to be agricultural may continue to be so, especially if the appeal of Alfred J. Wilson with the Ontario Municipal Board is abandoned or is unsuccessful.
Given the obvious intention of the petitioner in this matter to change the use from agriculture to an industrial extractive/quarry use, the Referee finds that the Grand River Conservation Authority is entitled to an Order of a remedial nature pursuant to s. 106.
In arriving at my decision, I was also aided by the endorsement of Drainage Referee Richard T. Johnson on Court file number 305/92 and 306/92 regarding the matter of Arie Vanderschot, Appellant, and the Corporation of the Township of North East Hope et al. Respondents; Arthur Horne et al. Appellants, and the Corporation of the Township of North East Hope et al., Respondents given August 5th, 1992.
Although these actions were combined, two different endorsements were given, the endorsement given in connection with the Horne et al. Decision is instructive. In it, Referee Johnston states;
I am of the opinion that I have the right to regulate my own procedure on the basis of Oatway v Canadian Wheel Board 1945 CanLII 43 (SCC), [1945] 2 D.L.R. 145.
The Referee further provides, as obiter, his opinion of his jurisdiction regarding the Tribunal which had given a Decision on an appeal by the City of Stratford, County of Perth, the Upper Thames River Conservation Authority and Arie Vanderschot pursuant to Sections 48, 49 and 54 of the Drainage Act. This decision was authored by Bernard J. Goodal, Chair of the Ontario Drainage Tribunal on April 6th, 1992. In his endorsement of August 5th, 1992, Referee Johnston states:
In my view, my appellate jurisdiction of the Tribunal only extends to matters not precluded by s. 101 of the Act and in the present case, if the Tribunal’s decision which it imposed on the engineer had elements which did not comply with the requirements of the Act. Pages 10 and 11 of the Tribunal’s decision requires some analysis. . .
After this analysis, the Referee states:
The issue of the allowance set out in the new Report could be appealed to the Tribunal by Mr. Dempsey. He has a right to appeal. Even though the Tribunal seems to have made its decision as to the amount of the allowance, Mr. Dempsey is entitled to appeal the amount of the allowance. Such appeal will not be an abuse of process.
To summarize:
(a) I do not have a jurisdiction to review the Tribunal’s decision as to process it uses to reach its decision (i.e. the introduction of evidence, reviewing allowances on its own initiatives or directing the Engineer on how to prepare a new Report) on appeals under s. 48, 49. This is a matter of judicial review, if it is available; and
(b) I can direct the Tribunal to hold hearings on appeals to it under the Act if it refuses to hold such hearings.
Referee Johnston then went on to describe further rights of appeal which might accrue. He states:
However, in this case, the appeal was launched before the report appeal from was finalized and the appellants did not have an opportunity to review the report to see if it complied with the requirements of the Act. Therefore the Appellants Horne and Dempsey will be allowed to prosecute their appeal but only on grounds appearing in the June 15th, 1992 Engineer’s Report and not on any grounds prior to that time.
Similarly, I take the position that I have the discretion to direct that the Tribunal proceed with any appeals under Section 10(7) of the Act regarding dissatisfaction with the Environmental Appraisal. Should a revised report evolve from that Environmental Appraisal I retain discretion to rule on that report.
DATED at Strathroy, Ontario this 16th day of June, 2009.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE