Howe v. Zorra (Township), 2016 ONDR 1

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Howe v. Zorra (Township)

2016 ONDR 1

DATE OF DECISION:

2016-01-05

2016-01

STATUTE:

Drainage Act

HEARING:

BETWEEN:

GORDON J. HOWE and

HOWE FARMS (ONTARIO) LTD.

and

)Valerie M'Garry, for the Applicants ) ) ) )

THE CORPORATION OF THE

TOWNSHIP OF ZORRA.

)Peter Pickfield, for the Respondent ) )Timothy G. Price, for Upper Thames River )Conservation Authority

REASONS FOR DECISION

1. As a result of my Order of November 24, 2015 pertaining to procedural matters in this Application, Counsel for the parties argued a procedural Motion pursuant to Rule 6 of the Rules of Practice and Procedure before me on January 5, 2016. The issue to be determined was the Motion brought by Upper Thames River Conservation Authority ("the Authority") seeking an Order for leave to intervene as an added party to the Application. The position of the Authority was supported by The Corporation of the Township of Zorra ("Zorra") and opposed by the Applicants.

RELEVANT FACTS

2. The factual context of this matter includes an Application seeking to have a municipal resolution set aside and an Order directing the adoption of an engineering report for the purpose of obtaining approval for drainage of farm land. Resolution 03-06-15 of Zorra was a decision to refer a report back to the engineer pending the Court decision with regard to charges laid under the Conservation Authorities Act by the Authority against the Applicants. The resolution also made reference to a County of Oxford woodlands conservation bylaw issue which I am advised has now been resolved. The Authority, supported by Zorra, wishes to be part of this Application. The Applicants take the position that it would be appropriate for me to determine this matter in the absence of the Authority.

3. Fortunately, it is not necessary for me to make any contested findings of fact in this Motion based upon the Affidavits that have been submitted. Accordingly, in the absence of any factual dispute raised by Counsel during argument, the relevant facts upon which I base my decision in this Motion include:

(i) The corporate Applicant is the owner of the subject parcel of land and seeks drainage improvements. Mr. Howe is the president and principal of the corporate Applicant.

(ii) The subject property is Part Lot 19, Concession 1, Township of Zorra, County of Oxford. It is the position of the Applicants that there was historic drainage in the subject property. It is the position of the Authority that water flowed through an open watercourse. It is not necessary for me to make any finding of fact with regard to the differences in positions of the parties at this time.

(iii) The Applicants did undertake drainage work on the subject property which was completed on or about October 2012.

(iv) The Authority took the position that the drainage work was in contravention of the Conservation Authorities Act and Regulation 157/06. The Authority took the position that the drainage work could not be undertaken in a regulated section of the subject property without consent of the Authority for that work.

The Applicants petitioned Zorra for drainage improvements on December 11, 2013. The Application was made by Howe Farms (Ontario) Ltd. Mr. Howe executed the Application on behalf of the corporate Applicant.

(vi) A report was prepared by Mr. DeVos, a professional engineer, pursuant to the provisions of the Drainage Act. During argument, I asked counsel whether there was any issue taken with the results of the work done by Mr. DeVos. While Counsel quite properly reserved their rights to finalize their positions regarding the DeVos report, it appears that no one has any significant factual concern with the work done by Mr. DeVos. Instead, the primary concern is whether it is appropriate for the work to have been completed under the Drainage Act or whether the Authority has a primary level of jurisdiction and must approve of the drainage work in regulated lands.

(vii) The Applicants were charged with violating the Conservation Authorities Act and Regulation 157/06. A five day Trial occurred before Justice of the Peace Anderson. Justice Anderson has made findings of guilt against the Applicants with regard to several charges and the parties are scheduled to make sentencing submissions before Justice Anderson on February 29, 2016.

(viii) On June 2, 2015, Zorra passed Resolution 03-06-15 (located at the Responding Motion Record of Zorra, Tab 3) in which the Municipality resolved to refer the report of Mr. DeVos back to him pending the Court decision under the Conservation Authorities Act.

Karen Winfield swore the informations against Mr. Howe and Howe Farms (Ontario) Ltd. alleging the violations under the Conservation Authorities Act and Regulation 157/06. Ms. Winfield also swore the Affidavit utilized by the Authority in this Motion on November 30, 2013. Additionally, if the Authority becomes a party in this matter, Ms. Winfield's Affidavit attached as Exhibit "A" to her November 30, 2015 Affidavit will be filed on behalf of the Authority. It appears to be common ground between the Authority and Zorra that Ms. Winfield is going to be a witness at the Hearing regardless of the decision I make in this Motion. If the Authority is a party, then Ms. Winfield will be called as a witness on behalf of the Authority. If the Authority is not granted party status, then Zorra would call Ms. Winfield as a witness since one of the concerns of Zorra in this matter is to make sure that it acts properly in a situation where there may be a conflict between the Drainage Act and the Conservation Authorities Act.

LEGAL CONTEXT OF THE TEST CASE

4. Counsel are in general agreement that this matter is a test case with regard to the jurisdiction of the Authority to enforce its mandate pursuant to the Conservation Authorities Act and the rights of land owners to obtain drainage of farm land pursuant to the Drainage Act. I am of course not making any determination with regard to the merits of the issues at this stage in the proceedings. My role at this point is to provide a procedural framework for the determination of this significant issue at a Hearing which will occur later in 2016.

Counsel also are in agreement that the decision of Justice Anderson, regardless of what may occur at the sentencing submissions on February 29, 2016 or the final sentencing in that matter, will be appealed. Since the largest issue in the Drainage Act Application also appears to deal with jurisdiction, Counsel noted that my final decision is also likely to be appealed. In my view, the positions taken by Counsel in this regard are sensible. If there is a conflict between the Conservation Authorities Act and the Drainage Act regarding land use planning and property rights, then it is appropriate for the parties to work toward an ultimate resolution of this matter on an Appellate basis which will determine the rights of land owners to obtain appropriate drainage under the Drainage Act and the rights of the Conservation Authorities to fulfil their water protection mandate under the Conservation Authorities Act. I would hope that a Motion could be brought at some point to have a common appeal of the Trial before Justice Anderson and the Hearing which will occur before me so that a single decision of the Divisional Court can determine the jurisdictional issues raised in this matter. In the circumstances, I appreciate the candour of Counsel in outlining the probable course of this matter which they are managing as a test case.

LAW

6. The Rules of Practice and Procedure Before the Referee state at Rule 17 that the Referee may consider the Rules of Civil Procedure when determining a procedural matter not expressly provided for within the Drainage Act rules. An Application to add a party would meet that criteria.

7. Rule 13 of the Rules of Civil Procedure provides the basis upon which a non-party to a proceeding may move for leave to be added. Pursuant to Rule 13.01(1), the Motion must include a claim by the Authority to the effect that it has,

(a) an interest in the subject matter of the proceeding;

(b) that it may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the Authority and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

8. I also note Rule 13.01(2) states that a Court "shall consider" whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.

9. Various Court decisions have commented upon Rule 13 and I will deal with that legal analysis in a subsequent section of these Reasons.

10. The difference in position argued by the parties before me involved which parties should be involved with this Application as the jurisdictional situation moves ahead both with the Conservation Authorities Act charges and this Application. The position of the Authority, supported by Zorra, is that the Authority is an appropriate party to this Application. The position of the Applicants is that the Drainage Act matter should proceed with only the Applicants and Zorra as parties.

11. Ms. M'Garry submitted that the Conservation Authorities Act and the Drainage Act create two separate jurisdictions and that it would be inappropriate to permit the Authority to have the ability to participate in a Drainage Act Application when it has no direct or traditional role under the Drainage Act. Ms. M'Garry's argument was to the effect that the two separate jurisdictions would then be brought together in the future before an Appellate Court. Ms. M'Garry argued that no further evidence with regard to the role of the Authority is needed beyond the transcript of the Trial before Justice of the Peace Anderson.

12. Ms. M'Garry also argued that the Applicants would suffer prejudice if the Authority is added as a party in the form of costs and time while upstream land owners who have apparently now made their own petition will also be prejudiced if the Authority is part of this Application. In my analysis, the prejudice argument is not determinative of this matter because:

(i) Ms. Winfield is going to be a witness regardless of whether or not the Authority is a party. It may in fact be more efficient to have Ms. Winfield called as a witness by the Authority than to have Zorra call that evidence.

(ii) I agree that the hearing may be extended to some extent by having three lawyers instead of two participate and that some additional evidence may be called if the Authority is a party to the proceedings. However, any prejudice in that matter can be resolved by the fact that the Authority is at risk of paying costs if it is an unsuccessful party to the Application and Mr. Price acknowledged that risk in his argument.

(iii) The addition of the Authority is not going to cause any delay in arranging the hearing because we can have the entire hearing in March 2016.

13. Accordingly, the argument made by Ms. M'Garry that requires more significant analysis is her position that the Conservation Authorities Act and the Drainage Act provide two separate jurisdictions and that it is appropriate to have hearings under those two pieces of legislation proceed in their normal separate courses and to then link them up at an Appellate level.

14. After considering Ms. M'Garry's submissions and the cases which she provided to me, I have concluded that the more appropriate course of action is to add the Authority as a party to this Application.

15. I note that the cases do draw some distinction between Rule 13.01 in which leave is sought to intervene as an added party to a legal matter and Rule 13.02 in which a person may seek leave to intervene as a friend of the Court without becoming a party to the proceeding. For example, Oakwell Engineering Ltd. v. Enernorth Industries Inc. [2006] O.J. No. 1942 and, 1162994 Ontario Inc. v. Bakker 2004 CanLII 60019 (ON CA), [2004] O.J. No. 816, in the Authority's case brief and Tanudjaja v. Attorney General of Canada 2013 ONSC 1878 submitted by the Applicants all deal with situations in which a party proposes to intervene as a friend of the Court. Nevertheless, those cases do provide reasoning that is of assistance to my decision in this matter.

16. In particular, a distinction is drawn by the Courts between strictly private litigation in which the intervention by an outside party would be limited and constitutional matters which are of broad application to society in which intervention is much more likely to be permitted.

17. As noted in the Oakwell Engineering Ltd. case at paragraph 10, many appeals will fall somewhere between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. The burden on the moving party is a heavier one in cases that are closer to the private dispute end of the spectrum.

18. The same case also noted at paragraph 11 that a proposed intervenor must offer something more than the repetition of another party's evidence and argument.

19. I am also mindful of the comments made in the Tanudjaja decision at paragraph 12 in which the overarching principle was quoted as stating that the matters to be considered are the nature of the case, the issues which arise and the likelihood of the Applicant being able to make a useful contribution to the resolution of the Appeal without causing injustice to the immediate parties.

20. I have also reviewed McFadyen v. Ontario (Mining and Lands Commissioner) 41 M.P.L.R. (4th) 267. Commencing at paragraph 33, the Divisional Court considered the appropriate test when a Tribunal is asked to grant party status. The Divisional Court noted at paragraph 35 that a Tribunal is not restricted to the test that is applicable to Court proceedings but may also consider other matters, including the subject-matter of the decision-making power, the nature of the issue to be decided at the Hearing and the object of the governing legislation.

21. It is my opinion that in all the circumstances of this case, it is appropriate to grant the Authority status as a party. In particular, my conclusions regarding the position of the Authority with regard to the tests at Rule 13.01 are:

(a) The Authority does have an interest in the subject-matter of this Application. There may be a conflict between the two pieces of legislation and a decision regarding primacy between the Conservation Authorities Act and the Drainage Act may be required. Alternatively, the two jurisdictions may be able to co-exist. Regardless, the Authority has an interest in the outcome.

(b) The Conservation Authority may be adversely affected by my judgment in this matter if I make a determination to the effect that the Drainage Act has a dominant role over the Conservation Authorities Act. I am obviously not making any such decision at this time, but the Authority has an interest in arguing that issue.

(c) The Authority does have a question of law or fact in common with the issues in this Application.

(d) Additionally, it is my view that a consideration of delay or prejudice under Rule 13.01(2) is resolved in favour of the position of the Authority. There will be no undue delay or prejudice caused by the addition of the Authority for the reasons that I outlined previously herein.

(e) It is also my opinion that the McFadyen case outlines the broad test for the addition of a party intervenor before a Tribunal. The Divisional Court decision in McFadyen is relevant in setting out the fact that a Tribunal is entitled to consider a broad list of criteria in determining whether or not party status should be granted. When it appears that part of the Drainage Act arguments in this matter may involve an attack upon the jurisdiction of the Authority and the Conservation Authorities Act, I believe that it is completely relevant to have the Authority present as a party.

(f) In my view, this case has elements of both private and public considerations of the type noted in the Oakwell Engineering Ltd. case and elsewhere. While the right of a farmer to drain property may be regarded as a private matter, the public does have an interest in making sure that drainage occurs in an appropriate fashion. Conservation Authorities have, as one of their responsibilities, the duty to manage watercourses and therefore, a drainage situation may well affect a broader community effort to conserve resources. The two jurisdictions may therefore potentially be in conflict and as a result, the reasoning in the cases that I have reviewed which tends to support the addition of intervenors becomes relevant.

(g) Finally, the position of Zorra is relevant to my determination. As Mr. Pickfield submitted, Zorra is "caught in the middle". It does not have a duty to defend the Conservation Authorities Act. The main interest of Zorra is to make sure that it follows the law, regardless of how that law is eventually analysed. As a result, Zorra and the Authority are not in identical positions even though they may be supportive of each other in this Motion. Therefore, in order to have a full hearing of all relevant issues, the Authority is a necessary party.

ORDER

22. Accordingly, my procedural Order pursuant to Rule 6 of the Rules of Practice and Procedure for the Referee is as follows:

(i) The Authority is added as a party to this Application. The title of proceedings in future filing should therefore be amended to include the Authority as an intervenor below the position of the Respondent Zorra in the current title of proceeding.

(ii) The Authority shall file its materials in the Application within two weeks of the date of this Order.

(iii) Zorra shall file its materials on or before February 22, 2016.

(iv) The Applicants shall file any reply materials on or before March 4, 2016.

(v) The Hearing is scheduled to occur on March 22, 23, 24, 29 and 30 in Woodstock.

It is my view that a Pre-hearing Conference under Rule 8 would be appropriate in this matter. I therefore direct the parties to contact Referee Waters for the purpose of arranging a Pre-hearing Conference, either in person or by conference call, as Referee Waters may direct. Without restricting the Pre-hearing Conference in any fashion, I suggest that items on the agenda might include:

(a) an effort to define the issues for the Hearing;

(b) a determination of how much engineering evidence will be required in circumstances where it appears that legal rather than engineering issues are the primary focus of the Hearing;

(c) filing of the Hearing Record pursuant to Rule 10;

(d) production of documents.

G. Edward Oldfield

Acting Referee

Released: January 7, 2016