Kawartha Lakes (City) v. Owners of R.J Burnside, 2011 ONDR 2

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Kawartha Lakes (City) v. Owners of R.J Burnside

2011 ONDR 2

DATE OF DECISION:

2011-03-07

2011-02

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE CITY OF KAWARTHA LAKES

APPLICANT

AND

ALL CURRENT OWNERS OF LANDS ASSESSED OR GRANTED ALLOWANCES PURSUANT TO THE R.J BURNSIDE & ASSOCIATES LIMITED REPORT OF MARCH 20^th^, 2006

RESPONDENTS

SUPPLEMENTAL REASONS FOR DECISION ON PETITIONS FOR ABANDONMENT OF SHORT AND 2A DRAINS

As I indicated in my Decision dated the 14th day of January, 2011, my Reasons for Decision have been divided in this matter. These reasons address the issue of abandonment of the Short and 2A Drains which arose through a Notice of Motion dated the 23rd day of May, 2008. As a result of this Motion and a procedural hearing held with Counsel representing some of the parties to this matter, it was agreed that the municipality would place Notice of a Preliminary Procedural Hearing to unrepresented parties in the drainage community by publishing in the local print media, being the Lindsay Post and Kawartha Lakes This Week, notice of the hearing of June 25th, 2008. The issues arising in the Notice of Motion are best described in the Affidavit of Kenneth Becking, Director of Engineering and Public Works for the City of Kawartha Lakes. The right to Petition for Abandonment occurs pursuant to s.84 of the Drainage Act (the "Act").

Abandonment of all or part of drainage works

84.(1) If three-quarters of the owners of land assessed for benefit in respect of a drainage works, who, according to the last revised assessment roll, own not less than three-quarters of the area assessed for benefit as shown in the by-law or by-laws under which the drainage works exist, send a request asking for the abandonment of the whole or any part of the drainage works, the council of the initiating municipality shall, as soon as reasonably possible, send a notice to all of the owners of the land assessed for the drainage works stating its intention to abandon the drainage works, or the part of the drainage works specified in the notice, unless, within 10 days of the dated the municipality's notice was sent, any owner sends a notice to the clerk of the municipality requesting that the report of an engineer to be made on the proposed abandonment. 2010, c.16, Sched. 1, s.2 (32).

Same

(2) The council of the initiating municipality may send a notice in accordance with subsection (1) of its intention to abandon a drainage works or the part of the drainage works specified in the notice, even if a request described in subsection (1) has not been sent to the municipality. 2010, c.16, Sched. 1, s.2 (32).

Engineer's report may be required

(3) If an owner sends a notice to the clerk within a 10-day period in accordance with subsection (1), the council shall appoint an engineer to examine the drainage works and report recommendations as to the proposed abandonment, any necessary work in connection therewith, the sale of any assets, the cost of abandonment and all other appropriate matters and shall assess all costs, including the engineer's compensation, and damage allowances against persons liable to assessment in connection with the drainage works in such proportions as appear just. R.S.O. 1990, c. 0.17, s. 84(3).

Procedures on report

(4) All proceedings, including appeals, with respect to a report under subsection (1) shall be the same with necessary modifications as on a report for the construction of a drainage works. R.S.O. 1990, c. 0.17, s. 84(4).

The specifics of the Motion that requested the direction of the Referee related to two petitions that were presented to the Municipality, one with respect to the Short Drain governed by by-law number 78-33 and a second with respect to the 2A Drain as governed by by-law 738, initially, and most recently altered by by-law 78-33.

The concern of the City of Kawartha Lakes (hereinafter referred to as the "City") was that after these petitions were received, the City also received correspondence from another owner assessed under the drain pointing out the need for maintenance and improvement of the drain and expressing a strong sentiment in opposition of abandonment.

KENNETH D. BECKING

In his affidavit, Kenneth D. Becking stated:

Even though the petitioners had acknowledged an insufficiency in the petition regarding the Short Drain portion of the watercourse, Council's direction and our duty under the Act as we understood it, required the municipality to make its own independent assessment of the sufficiency of any petition for abandonment presented. Since the process, if a valid petition for abandonment were to be received, would almost certainly include another engineer's Report having to be produced and undergo the Drainage Act appeal processes, causing a significant additional cost to be imposed on the drainage community, we approached our obligation to assess the validity of the petitions with considerable care and a heightened sensitivity to the competing interests involved here.

Kenneth Becking described a number of issues which the City, in consultation with its legal counsel, identified in connection with the abandonment petitions. These issues were as follows:

1. There had been many severances and mergers of parcels, as well as other matters that affected the acreage as originally estimated in the respective Reports.
2. The municipality was concerned as to its methodology where properties had been originally assessed under one by-law to one drain and then assessed later under a different by-law to a different drain without an amendment of the assessment schedule in the original by-law.
3. Should the A and B Branches of the Short Drain be included in the drain for purposes of determining the property assessed for benefit?
4. There were a number of properties in joint ownership where the signature of only one owner appeared on the petition.
5. Would roads count as part of the benefitting lands if they have been assessed for benefit under a report?
6. Can a Petition for Abandonment that lacks the concurrence and signature of a road authority ever be sufficient where the roads were assessed for benefit?
7. If the property has changed hands according to the municipal records but not according to the last assessment roll, which governs?

Mr. Becking advised that in his investigation for the sufficiency of petition, he relied on the advice of Counsel for the City, Valerie M'Garry. Her advice, among other matters, was that the municipality could not actively assist the abandonment petitioners or those seeking maintenance at this point and should remain as neutral as possible.

THOMAS PRIDHAM

After receiving the initial petitions on or about October 10th, 2006, the City had decided not to involve Thomas Pridham, who had created the Report at the order of Referee O'Brien dated March 20th, 2006, as this report had brought about the Petitions for Abandonment. The decision at this time was to leave Mr. Pridham out of the analysis, as the petitioners had expressed a belief that Mr. Pridham was biased against their position.

After continuing discussions with the petitioners, in face of their insistence that their petition was valid, counsel for the municipality conferred with Paul Elson P.Eng. Drainage Engineer at the Stratford office of R.J. Burnside and Associates Limited, together with Mr. Pridham, whose familiarity with the watershed serviced by the drains in question would hopefully aid in Mr. Elson providing unbiased assistance. In addition, on April 24th, 2007, a further amended petition was submitted to Council. Analyses of the petitions were completed by the City and submitted to Council in May of 2007 which led to a Drainage Board Meeting on June 27th, 2007. The purpose of this meeting was to allow the municipality to ensure that those requesting abandonment understood that there would be a further engineer's report required for the abandonment. The City wanted to be sure that the drainage community knew that the cost of the report could be a significant factor if assessed against petitioners or portions of the drain that might be abandoned, if this was not anticipated by those original petitioners.

In the interim, in July of 2007, 35 appeals under s. 47 of the Drainage Act as well as 37 appeals under s. 48 and 54 of the Drainage Act were submitted.

This lead to the major concern which the municipality placed before the Referee:

. . What is the municipality to do, should it receive an apparently valid abandonment petition during the ongoing processes under the Drainage Act that were previously Ordered by the Referee with respect to the Burnside Report? If it is, or appears to be, a valid petition for abandonment, should it be dealt with in the midst of the Drainage Act process currently underway pursuant to the Orders of the Ontario Drainage Referee with respect to the Short and No. 2A Municipal Drain Report, 2006? Or, should any petition(s) for abandonment (and any other significant decisions affecting the watershed) await the completion of the Drainage Act process, as appears to have been the intent of the prior Referee's Orders?

Part of the reason the City wished to place this primary concern before the Referee is the position taken by Thomas A. Pridham, engineer, appointed by the municipality pursuant to the Order of Referee O'Brien and upon its own direction. Mr. Pridham took the position regarding sufficiency of outlet:

In our opinion and practice a sufficient outlet is the point where the drainage works provides the required outlet for upstream lands and can be terminated and discharged without additional injury to the downstream lands. In our opinion a sufficient outlet on this project was obtained at Station -2 + 100 in the S ½ Lot 19, Con. 11 (A. Webster)....

Therefore sufficient outlet, according to Mr. Pridham, would carry the work on the Short Drain to a point very near the downstream end of the 2A Drain at Station -4 + 000.

In the Affidavit of Thomas Pridham filed with the City's motion, Mr. Pridham stated:

When told by Ms. M'Garry that petitions for abandonment had been received, I pointed out to her that the petitioners should understand that the work proposed under my Report would not change.

The reason for this is because, subject to section 32 (allowance for damage), section 15 of the Drainage Act requires me to take any Drain to a sufficient outlet. A sufficient outlet for the proposed work will not be reached, in my professional opinion, until a point in the south half of Lot 19 in Concession 11. This point is well downstream of the point at which the petitioners think a valid abandonment petition will end the work. Section 8 of my Report deals with the requirements of a sufficient outlet.

The second question which the City put before the Referee came from the ongoing efforts to place abandonment petitions before the City. The City in its Notice of Motion indicated that both petitions had been analysed and had not yet proven to be sufficient based on the municipalities analysis, assuming its analysis was appropriate. The municipality asked that should I rule that the abandonment process prevented compliance with Referee O'Brien's Order at this time. The second question, as put by Mr. Becking in his Affidavit was:

Is the process and analysis the municipality and its advisors have used to determine the validity of the abandonment petitions an appropriate and supportable one? If not, what and where are the flaws and what should the municipality be doing in the future with respect to such a petition?

All parties acknowledged that there was a paucity of decisions under the Act dealing with the abandonment of a drain. As a result, the Referee is providing these reasons, relying on the evidence before him, common sense and some of the procedures which have been used in the past with regard to abandonment as well as the specific dictates of section 84 to give some direction regarding procedure.

SID VANDER VEEN

One of the witnesses called was Sid Vander Veen, who is the Drainage Co-ordinator for Ontario. He testified that he had shared with John Oostveen, Manager of Engineering Services for the City of Kawartha Lakes Report his opinion on abandonment procedure which had been previously shared with the Township of South Gower. This document is attached to a report of Mr. Oostveen to Council dated March 27^th^, 2007.

Mr. Vander Veen suggested in his evidence that it was his opinion that he would rather over consult and insure that the community of landowners involved in the drain have sufficient opportunity to understand the implications of what ramifications can occur if a drain is being abandoned. In the situation of South Gower, the City of Kingston, which was considering abandoning a section of the drain, held a public information meeting. The result of that meeting was that petitioners withdrew the petition and the process was stopped.

The first two steps in the process described by Mr. Vander Veen were establishing the validity of the abandonment petition, and should the petition be valid, a meeting to consider the abandonment of the drain. This is held, although not required by the Act, to insure that landowners will realize what might happen.

While this was somewhat the process undertaken by the City, the position of Thomas Pridham that the Short Drain be taken to sufficient outlet which would, in essence, take it through most of the 2A Drain was not something established as the appeals to the Referee under s. 47 had not been heard. Common sense would dictate that parties to an abandonment should establish whether the work would proceed with regard to the drain at any rate, especially if the environmental concerns were that the 2A Drain (sometimes known as the Mariposa Brook) not be disturbed. If costs were a concern, common sense would also dictate that given the history of the Short and 2A Drain, it is probable that a request for a report regarding abandonment would occur with consequences unknown to the petitioners.

It is my view that, although I do not have to rule on it for reasons I will set out further, a petition for the abandonment of a drain during the process of fulfilment of an Order of the Referee under s. 78 of the Act is an abuse of process. This is especially significant given the fact that owners of some of the lands assessed for benefit, albeit different owners now represent lands of owners who had brought appeals which initiated the Report ordered by Referee O'Brien and in a turnaround are now attempting to arrange its abandonment before costs can be assessed. Section 84(4) implies that the usual procedures under the Act occur. Although there is no report regarding abandonment, there was an Order requiring a Report under s. 78. Several parties to this trial on one hand require abandonment, and yet on the other hand appeal under s. 47 of the Act. This, while not prevented by the Drainage Act, bespeaks of attempts at obstruction which have occurred throughout the history of this drain.

My Order of June 25th, 2008 sets out the procedure which was to be used in this matter; that being the Trial of the Issues as to the fulfilment of the Orders of Referee O'Brien of August 31 and October 20th, 2000 by means of the Appeal of the March 20th, 2006 Report of Thomas Pridham, pursuant to s. 47 of the Act should occur first. At that time I was, and continue to be, of the opinion that a Petition for Abandonment of an appealed Report would not provide to the petitioners any real sense of what they were abandoning until that appeal was heard, nor would it provide to the engineer charged with completing the Report regarding abandonment a true calculation of the costs of such abandonment given that some work might inevitably proceed if the Report under appeal was approved in whole or in part.

Having ruled that the petition for abandonment process must await the completion of the Drainage Act process as described in Referee O'Brien's Orders, I will now deal with the questions placed before the Referee in secondary fashion in the Motion of the City of Kawartha Lakes.

QUESTIONS PLACED BEFORE REFEREE

At the outset I wish to dissuade other municipalities from this type of Motion for Directions without chastising the City of Kawartha Lakes for this particular motion. Kawartha Lakes was faced with a specific situation that was very unique. In normal circumstances, the municipality (as it does with a petition) should through its own analysis, with help from the engineer appointed in connection with the area requiring drainage, be in a position to establish the validity of the petition. In this Notice of Motion, Kawartha Lakes in its grounds confirm this:

The Municipality has also been presented with petitions for abandonment of the Short and No. 2A segments of this water course. Both have been analyzed and have not been proven to be sufficient based on municipality's analysis and assuming that analysis to be appropriate.

At this point the City should not have proceeded to the Referee. If there was an issue raised by the petitioners for abandonment, in response to the City's decision, this issue could have been pursued through motions or appeals pursuant to s. 106(1)(b), (d), (e) and (f) of the Act brought by those petitioners.

ISSUES RAISED BY KENNETH BECKING AND COUNSEL FOR THE CITY

I will now deal with procedural abandonment issues raised by Kenneth Becking in his Affidavit and by counsel for the City with respect to the process the City utilized to date, to its analysis and its conclusions with respect to the abandonment petitions' validity.

1. There had been many severances and mergers of parcels as well as other matters that affected the acreage originally estimated in the respective Reports.

In dealing with abandonment, the City, provided it is able to establish the lands assessed for benefit from the original report to its satisfaction, and unless there is clearly an error with regard to description of the benefitting lands, should, to the satisfaction of the engineer charged with interpreting the original report, have a relatively straight forward exercise. In this process, the severances create new or additional owners for purposes of votes and, where the mergers of parcels occur, a reduction in the number of owners. I assume that the remaining matters affecting the acreage relate to the position taken that the 1978 Gibson Report altered interpretation of which owners were assessed for benefit.

2. The municipality was concerned as to its methodology where properties had been originally assessed under one by-law to one Drain and then assessed under a different by-law to a different Drain without amendment of the assessment schedule in the original by-law.

All parties acknowledged there were flaws in the assessment schedule of the 1914 Cavana Report found at Exhibit 1 Volume III Tab 13. I find there is no disagreement between the parties that there was an extension of the Short Drain for purposes of repair and improvement to Station 26 + 00 in Lot 16, Concession 13, also variously described as Hub 0 through the H.M. Gibson Ltd. Report.

All parties have likewise acknowledged that there was no amendment to the assessment schedule in the 2A Drain in the original by-law at the time the modified work was being completed, pursuant to the Gibson Report dated May 15th, 1978. This report occurred after a Tribunal Hearing.

According to Mr. Becking:

Mr. Gibson, in 1978, extended his work further downstream than what I believe Mr. Cavana referred to as the end of the Short Drain, or at least what I was able to determine was the end of what Mr. Cavana called the Short Drain, so there was an overlap. With the aid of advice from legal counsel, we came to conclude that where the overlap occurred, the later by-law superseded the earlier, and that then dictated the properties which would be assessed against each of the petitioners.

He further described the overlapping area as Lots 11, 12, 13, 14 and 16 in Concession 12.

This was confirmed by expert evidence given by Mr. Dries in his report.

I concur only the land assessed for benefit in the 2A Drain that was not assessed for benefit in the Short Drain may be considered in the petition for abandonment of the 2A Drain.

Evidence of the correctness of this proposition can be found within the statute as it relates to maintenance of drainage works and costs. Section 74 requires maintenance of the drainage works as follows:

... at the expense of all upstream lands and roads in anyway assessed for the construction or improvement of the drainage works and in proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or an appeal therefrom.

The text from the Municipal Drainage Act s. 69, being the drainage legislation in place at the time of the Cavana Report, which dealt with the maintenance of inter-municipal drains, contained similar wording:

At the expense of the lands and roads in any way assessed for the construction thereof, in the proportion determined by the engineer or surveyor in his report and assessment for the original construction or in appeal therefrom by the award of arbitrators or order of the Referee, unless or until in the case of each municipality, such provision for maintenance is varied or otherwise determined by an engineer or surveyor in his report and assessment for maintenance of the drainage work ...

It becomes plain that the addition of the phrase "then current by-law pertaining thereto" in current legislation confirms that the later report supersedes the Cavana Report based on proper interpretation of current legislation. This interpretation was noted in confidential reports of the council of Kawartha Lakes given by staff in 2007-2008

3. Should A and B Branches to the Short Drain be included as part of the drain for purposes of determining assessment for benefit?

While the current statute has the definition of a "drainage work", it does not provide any aid as to whether a branch be included in the drain for purposes of determining the proper assessment. In earlier statues, "drainage works" were also not defined, as a result judicial interpretation of the term "drainage works" provides the answer.^22^ In his text, The Drainage Acts, Ontario, Frank Proctor quotes Justice Lister of the Court of Appeal in re Tp. Of Rochester & Tp. Of Mersea (1899) 26 474, at p. 480, ^23^ Justice Lister states:

There can be no doubt that a drainage work may include such branch drains as may be necessary to render the drainage of the area effective, and that the main and branch drains may be regarded as a single scheme or undertaking, for the expense of which the lands in any way liable to contribute may be assessed as for a single scheme. There is no provision in the statute which suggests in such a scheme, the necessity of a separate assessment.

4. There were a number of properties in joint ownership where the signature of only one owner appeared on the petition.

In answer to this question I refer to all parties to the 1997 decision Landmark Ltd. V. The Municipality of the Township of Hay^25^, in which Referee O'Brien discusses joint ownership in a situation where only the name of the one joint owner appeared on the petition. The Referee quotes section 4(2) of The Drainage Act as requiring the signature of each owner. He goes on to state:

It must be recognized, however, that it is possible to have a legal signature provided by a party other than the signing party. It must be done through the provision of a document that provides clear legal authorization.

Referee O'Brien then discussed the nature of such legal authorization. It should be noted that at the time this issue was brought to the attention of the Referee, the Substitute Decisions Act had only recently been proclaimed and the prevalence of power of attorneys was not as pronounced as it is today. The better course of action for the municipality or an engineer would be to suggest the supply of a power of attorney. However, according to Referee O'Brien, other authorizations might be valid, depending on the circumstances.

5. Would the roads count as part of the benefitting lands if they have been assessed for benefit under a Report.

It has been acknowledged by the abandonment petitioners prior to the commencement of this trial that the abandonment petition for the Short Drain fell short of the criteria set out in s. 84(1) of the Act. This was also confirmed by Mr. Dries appearing on behalf of the s. 47 appellants as well as the petitioners for abandonment. Mr. Dries confirmed in his instructions that he was retained by counsel for both groups, who were substantially the same people.

While it was not specifically put to the Referee in the motion, the Affidavit of Kenneth Becking sets out two issues which were raised during the abandonment portion of the hearing regarding roads:

Do roads count as benefitting lands if they were assessed for benefit under a report? The position of the City was that they did. Two opposing positions were taken, with the municipality finding the 2A petition not sufficient based on the area of roads being viewed as assessed for benefit while the petitioners for abandonment who excluded the area which the City claimed as assessed for roads under their petition for abandonment of the 2A Drain maintaining the validity of their amended petition.

A further interpretation taken by the City requires comment from the Referee on the City's documentation put forth for purposes of calculating sufficiency of petition.

In the counting of ownership, the City put forth the following position:

The City of Kawartha Lakes owns land (a gravel pit) within this drainage area and had not signed the petition. The City is also the road authority for the roads in question. Although it is not "ownership" in the same sense as a property acquired by deed or conveyance, the Surveys Act and the Municipal Act vest the roads in the municipality. It holds the roads as Trustee and is obliged to protect and maintain the roads as a public right of way. By contrast, the municipality owns the gravel pit through a purchase, by deed and not as Trustee.

We counted the City name twice; once for the gravel pit and once for the roads, because the nature of the municipality's ownership interest in the roads, as opposed to other ordinary lands, such as the gravel pit, is fundamentally different.

As a result, the City in calculating the number of owners, counted itself twice. Mr. Dries in his report of October 19th, 2009 contradicts this:

It is my opinion that the City of Kawartha Lakes should only be counted once as owner of land.

Drawing from Mr. Becking's Affidavit, the city's position is further described as follows:

…The principle is that municipalities hold the roads as trustees for the public. The public are actually the beneficial owners of any roads that have been opened as public roads, with the municipality "holding" them in its name, even though there is generally no deed to look at to determine title. This basic principle came down from the common law, has been enshrined in our legislation since the first Highway Act of 1793 and remains the case to this day.

This, however, begs the question in its ownership of other property, is the municipality not trustee for its citizens? I cannot agree with the analysis of counsel for the municipality as set out in Exhibit H to the Affidavit of Mr. Becking. For example, while a road once created is a liability for the municipality, I would assume that a landfill, once created, is also a liability. As an example, under the current Municipal Act, enacted in 2001, the requirements for closing and selling a highway, once more onerous, have been removed with regard to the sale of a closed road without creating a great variation between such sale and that of surplus lands. Therefore, city lands should be counted as one ownership.

Additionally, Mr. Dries, in his report, supports the position of the abandonment petitioners regarding assessment for benefit:

I also question whether the Roads in the City of Kawartha Lakes should be included in the table of owners involved in the petition to abandon the 2A Drain. Schedule of Assessment attached to by-law 738 identifies the assessment against the "roads and lands of the municipality" in the amount of $525.00 but does not identify any portion of this assessment as a benefit charge.

Some light can be shone on the interpretation of the drainage assessment schedule in the Cavana Report and by-law 738 by reference to The Drainage Acts, Ontario, Frank B. Proctor, LL.B. Arthur Poole & Co. 1908 pages 105 to 115, (cited previously).

The author's commentary relates to s. 61 of the former Municipal Drainage Act which provided for notice if the initiating municipality's drain continued into another municipality or whose lands or roads are assessed but without drainage work being continued into such adjoining municipality.

Section 63 (2)(b) of the Municipal Drainage Act allows as reasons for appealing in s. 63(2)(b)4:

that the assessment against lands and roads within the limits of the appealing municipality and roads under its jurisdiction is illegal, unjust or excessive.

Mr. Proctor then quotes various authorities as follows:

To authorize an assessment in a contributing municipality, the proposed work must confer substantial benefit upon the lands or roads assessed.

In my view, the reason that the assessment is not shown as a benefitting assessment in the report of Mr. Cavana in 1914 appears in a prohibition against block assessment.

If amounts assessed against each road and each parcel of the land in the appealing municipality charged with a portion of the cost of the proposed work are not shown separately, the whole assessment is illegal.

I have no doubt that, based on the law extant at the time of the Cavana Drainage Report in 1914, roads were to be shown as separately assessed. It would further appear that the simple reason why the roads in the Cavana Report were not shown as assessed for benefit was that they did not fit into the scheme of lots and concessions which is set out in the by-law. Given the above analogy and case law with regard to initiating and appealing municipalities in s. 63, of the Municipal Drainage Act R.S.O. 1897 c. 226, common sense would lead me to assume that the roads were not assessed as a special assessment but as an assessment for benefit. In arriving at this decision, I had regard to the definition of "benefit" in the Act and a treatise named "Drainage Assessment Revisited" authored by Mr. Dries and H.H. Todgham.^36^

6. Can a petition for abandonment that lacks concurrence and signature of a road authority (where the roads are assessed for benefit) ever be sufficient?

Based on the structure of the Act, I would be inclined to say that, yes, a petition for abandonment could proceed lacking the concurrence and signature of a road authority, however, this does not derogate the rights of the road authority under s. 4(1) (c) to petition for the drain at any rate. It would, however, require a political decision to proceed in the face of the petition for abandonment depending on the nature of the road authority within the municipality.

In arriving at such determination, the road superintendent or other person having jurisdiction should be aware of the following principles enunciated by Proctor in dealing with compensation for damage to low lying lands based on a section that was the precursor to the current s.32 of the Act:

No Authority To Flood Roads – It will be noted that no power is conferred upon an engineer authorizing him to conduct the contents of a drain onto a road and let them lay there on compensating the municipality for damages sustained.^37^

Proctor quotes with approval the decision of Referee Hodgins:

Now of the two municipal interests which are confided by the legislature to Municipalities, highways and drainage, the care of highways must be their paramount duty; drains and drainage systems must be considered as the subordinate duty. Highways are for the benefit of the public at large. Drainage schemes can only be undertaken at the instance of and for the benefit of private persons or sometimes for the benefit of locality. The public interest in regard to highways therefore must always be paramount to the public interest of the persons benefited, or to be benefited by drainage systems and drainage schemes.

7. If property has changed hands according to the municipal records but not according to the last assessment roll, which governs?

Normally, the last revised assessment roll would govern. However, s. 4 (4) of the Drainage Act allows a person who is the owner of land, but does not appear to be the owner on the last revised assessment roll, to prove ownership to the satisfaction of the court according to Referee O'Brien:

Misdescription of Properties – Errors in the identification of the various owners' properties, although they should be reviewed and corrected, likewise do not invalidate a petition provided that the signatories are in fact owners within the area requiring drainage.^39^

It should be noted that the last revised assessment roll, as set out in the Assessment Act, has as its primary purpose determination upon whom the assessment should be made, the rate of taxation and upon whom it should be levied.^40^ Completion of the assessment roll is not always timely as it may be subject to Assessment Review Board Appeal and certification by the Registrar of that Board.^41^ In addition, it is stated that the last revised assessment roll is valid despite any defect or error committed with regard to the roll:

provided that the provisions of this section in so far as they relate to the omission to deliver or transmit the notice do not apply to a person who is given the assessment corporation notice provided for in subsection 31 (4).

Section 31 (4) is a provision regarding notice as to which address the Notice of Assessment may be delivered. It is common real estate practice in Ontario that notices are provided to both the municipality and to the Municipal Property Assessment Corporation or through the municipality to the Municipal Property Assessment Corporation. However, with severances, confirmation of the last revised assessment roll can often be delayed for beyond a year while assessed values are established.

Further complications occur in s. 17(2) of the Assessment Act in which land held by a person as trustee, guardian, executor etc. shall be assessed against the person as owner. Section 17 (2) goes on to state in part:

... but the fact that the person is a trustee, guardian, executor or administrator shall, if known, be stated in the roll.43

In essence, actual knowledge by the municipality will always confirm ownership.

FINDINGS OF FACT REGARDING PETITION FOR ABANDONMENT OF SHORT AND 2A DRAIN

In entering into this motion, the municipality had taken a position that neither petition, but most importantly the petition for abandonment of the 2A Drain was valid. This was all that was required. In providing his evidence, Kenneth Becking reviewed Exhibit 1 Volume III Tab 203 being the documentation created by which the municipality in summary form confirmed that both the Short and 2A Drain abandonment petitions failed to meet the double test required by s. 84 (1) of the Act.

In addition to his report, Mr. Dries provided the following evidence at trial:

I reviewed the various tables that were produced by the town to identify the property owners and who they thought was in and out and whether the signatories to the petition met the requirements of the Act relative to its validity, and I concurred with the methodology that seemed to be applied in determining the properties in the petition process with a few exceptions.

In part, those exceptions have already been addressed in these reasons, Mr. Dries went on to say:

The long and the short of it, based on my analysis and based on the information that was available to me and based on the requirements of meeting the threshold, the 75% threshold of owner signatories or area affected -or area assessed for benefit, I concluded that the petition for the 2A Drain was still not valid ..

I also expressed an opinion that in my belief the costs associated with developing the validity issue on the part of the town was not chargeable to the costs of the Short and 2A Drains, as that was a separate issue.

I find as fact that neither petition met the threshold required by s. 84 of the Drainage Act. In addition, although it is not determinative of anything in this matter, the amended petition was invalid in that it should have been in the form of a re-submitted petition in which there was confirmation of the original parties as well as the parties who were wishing to join their name to the petition in April of 2007. A fresh petition for abandonment should have been supplied.

COSTS

I accept the evidence and the opinion expressed by Mr. Dries on behalf of the abandonment petitioners that the costs associated with developing the validity issue on the part of the municipality are not chargeable to the Short and 2A Drains. As a result, the costs of the city's counsel, its engineers relating to the development of the city's position expressed in the confidential memo to council, its involvement in the June 27^th^, 2007 meeting regarding the potential abandonment of the 2A Municipal Drain should not be included in costs chargeable to the Short and 2A Drain. However, I am of the opinion that the costs relating to the preparation and submission of the Motion of May 23rd, 2008 for directions are attributable to the drain pursuant to s. 73 (1) of the Act on a partial indemnity basis.

As I indicated in my initial Reasons for Decision in this matter, costs continue to be a concern and the time spent by counsel for the municipality and for counsel in support of a petition for abandonment should be excluded from costs assessed to the drain. Had the Referee received Mr. Dries report in a more timely fashion, effectively one day of time during the entire seventeen day trial could have been avoided. As such, those two parties will not have their costs with regard to that portion of the time of trial. I will address the situation regarding costs of the parties and the issue of the City of Kawartha Lakes' liability under s. 79 of the Drainage Act separately in my final Reasons for Decision.

Dated at Strathroy, Ontario this 7th, day of March, 2011.

ROBERT G. WATERS

ONTARIO DRAINAGE REFEREE