ODR 2010

The appellant brought a motion for directions regarding the procedure to be followed under the Drainage Act.

On consent of all parties, the Acting Drainage Referee ordered the appellant to file the appeal in the Superior Court of Justice, Court of the Drainage Referee.

Upon filing, the appeal was ordered to be transferred to the Ontario Drainage Tribunal pursuant to sections 119 and 48(1) of the Drainage Act.

The appellant municipality brought a motion for an order allowing its employees access to the respondent's property to repair and maintain a municipal drain.

The respondent had repeatedly denied access, locked gates, and filled in portions of the drain, causing flooding to upstream landowners.

The respondent failed to appear at the hearing.

The Acting Drainage Referee found that the respondent had unlawfully interfered with the municipality's statutory duty to maintain the drain under the Drainage Act.

The Referee granted a permanent injunction restraining the respondent from interfering with the repair work and ordered police assistance to ensure peaceful access.

Costs of $1,000 were assessed against the respondent's lands.

The Grand River Conservation Authority (GRCA) appealed under the Drainage Act and requested an environmental appraisal, which was ordered by the Referee.

The parties subsequently reached a settlement incorporating a technical memorandum, but could not agree on who should bear the $19,079.50 cost of the environmental appraisal.

The GRCA argued the cost should be shifted to the petitioner, Wilson, due to delayed disclosure.

The Referee held that under section 6 of the Drainage Act, the cost of an environmental appraisal is borne by the party who requested it, and any alteration of the account must be appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal.

The Referee declined to reallocate the cost but indicated a willingness to order the legal costs of the proceedings to form part of the cost of the drainage works under section 73(1).