The Corporation of the Township of Edwardsburgh/Cardinal v. Carmichael et al, 2018 ONDR 1

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

EDWARDSBURGH (TOWNSHIP) v. CARMICHAEL et al

2018 ONDR 1

DATE OF DECISION:

2018-02-15

2018-01

STATUTE:

Drainage Act

HEARING:

Court File No.: 17.0090

BETWEEN:

THE CORPORATION OF THE

TOWNSHIP OF EDWARDSBURGH/CARDINAL

Applicant

• and —

ROBERT CARMICHAEL and BETTY CARMICHAEL, DAVID BRUCE and ARLENE BRUCE and GREG MOULTON

Respondents

ACTING DRAINAGE REFEREE

ANDREW C. WRIGHT MONDDAY, THE 12^TH DAY

OF FEBRUARY, 2018

ORDER

The Court of the Drainage Referee having appointed this day for a continuation of a procedural pre-hearing conference

(a) to identify parties;

(b) to identify the number and nature of witnesses to be called by each party;

(c) to schedule pre-hearing production and exchange of documents, including witness statements for expert witnesses and evidence summaries for other witnesses;

(d) to schedule examinations for discovery;

(e) to identify the order in which parties will call evidence, cross-examine and make final submissions;

(f) to estimate the amount of time required for the hearing;

(g) to set the commencement date for the hearing;

(h) to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.

Upon hearing the submissions of counsel for the applicant Township, of the agent for the respondents Robert and Betty Carmichael, of counsel for David and Arlene Bruce and of Greg Moulton, for the reasons which follow:

THIS COURT ORDERS that:

1. The Township is to initiate a Section 78 process under the Drainage Act to incorporate as part of the James Reilly/Dewitt-Richter Municipal Drain the changes to the culvert and crossing on the Bruce property and the relocation of the drain and culvert on the Carmichael property.

2. In that connection, the Township Council is direct to pass the following resolution:

"That council appoint Andrew Robinson, P. Eng. of Robinson Consultants Inc. to complete an amendment to the existing Engineer's Report for the James Reilly/Dewitt-Richter Municipal Drain, under Section 78 of the Drainage Act, to incorporate the changes to the culvert and crossing on the Bruce property and the relocation of the drain and culvert on the Carmichael property. The amendment report is to include an assessment schedule for the costs of the amendment report and any additional modifications required at the two properties. The amendment report is not to deal with the assessment and distribution of costs to date for modifications and related costs incurred since issuance of the Certificate of Completion dated November 28^th, 2012 for the initial construction."

3. A hearing will be held to determine how expenses related to the 2013 improvement of the Bruce crossing are to be borne and in what proportion.

4. The time and date of that hearing will be fixed by the presiding Acting Drainage Referee in consultation with the parties and having regard for the availability of a courtroom in the Courthouse in Brockville.

5. Costs of the day are reserved to the final disposition of this matter.

6. The presiding Acting Referee is seized of the hearing of the merits of this application.

Dated at London this February 15, 2018

__________________________­­­­­­­­­­­­­­­­­­­

Andrew C. Wright

Acting Drainage Referee

REASONS

1. On Monday February 12, 2018 the Court of the Drainage Referee resumed the procedural pre-hearing conference which commenced in the Courthouse in Brockville on July 19, 2017.

2. The procedural pre-hearing conference in July 2017 was adjourned to a telephone conference call hearing on January 23, 2018. The Order and Reasons therefor from July19, 2017 were issued on August 16, 2017. The Order and Reasons from the January 23, 2018 telephone conference call were issued on January 25, 2018.

3. The gist of the decision from January 23, 2018 was that the procedural pre-hearing conference should be further adjourned to enable the involvement of Mr. Andrew Robinson, P. Eng. The adjournment was to a date to be fixed by the Court having regard for the availability of Mr. Robinson and of the representatives of the parties.

4. The Court set 10:00 am on Monday February 12, 2018 for the resumption of the procedural pre-hearing conference. Warren Leroy appeared for the Township; Shawn Carmichael represented for parents Robert and Betty Carmichael; Gordon Campbell appeared for David and Arlene Bruce; and Greg Moulton spoke for himself and his wife Mary Ann Moulton. Andrew Robinson, P. Eng. also participated.

5. Mr. Robinson is the author of the most recent report on the James Reilly / Dewit-Richter Municipal Drain (the "Drain"). That report was issued May 11, 2009 by Robinson Consultants Inc. and signed by A.J. Robinson, P. Eng. as modified by Addendum No. 1 issued July 2009 by Robinson Consultants following Court of Revision decisions (the "Most Recent Engineer's Report"). Mr. Robinson gave factual background evidence during the hearing in Brockville in July 2017.

6. There are two aspects to this case.

7. One relates to the alteration in 2013 of a farm crossing on the property of David and Arlene Bruce at a cost of some $50,000 before taking into account Provincial subsidization. The Bruce farm is in Lot 4, Concession 6. The Township treated the expense as maintenance and repair and in this proceeding in the Court of the Drainage Referee sought confirmation that this treatment was appropriate. Mr. Robinson had previously given the Township advice that this work should be assessed to the landowner as special benefit. The Township's Drainage Superintendent was of a different view and the Township proceeded in reliance on the Drainage Superintendent to assess the cost on the basis that it was maintenance and repair. The Carmichaels and the Moultons, both assessed to the Drain, oppose having to pay any of the cost of the Bruce crossing work as maintenance and repair of the Drain.

8. The Township contracted its Drainage Superintendent work to an engineering firm called Greer Galloway Group Inc. Greer Galloway Group Inc. assigned a Certified Engineering Technician to perform the Drainage Superintendent function. Needless to say a C.E.T. does not have the credentials of an engineer. There is no suggestions that there was any engineer at Greer Galloway Group with Drainage Act experience to oversee and guide the C.E.T in his work for the Township.

9. The principal reason for the adjournment of the July 2017 procedural pre-hearing conference to the January telephone conference call was to give the Township an opportunity to identity and retain an engineer who would be supportive of the opinion of the Drainage Superintendent that the work on the Bruce crossing was maintenance and repair. During the January 2018 telephone conference call counsel for the Township advised the Court that the Township conceded that the work at the Bruce crossing was an improvement and not maintenance and repair and that the remaining issue was how to attribute the cost of the improvement work and of this Drainage Referee process.

10. The second branch of this case relates alterations made to the Drain in 2015 as it flows through the Carmichael farm in Lot 2, Concession 6. There is no doubt that this work was done without municipal approval under the Drainage Act or Conservation Authority approval. After the fact the Township Drainage Superintendent inspected the alteration, and with a retro-active approval from the Conservation Authority, found it to be acceptable subject to the correction of deficiencies. The changes to the Drain involved relocating a culvert and the realignment of a section of the Drain. The Drainage Superintendent inspected the changes in 2015 and directed that identified deficiencies be rectified; this is set out in a letter dated July 10, 2015 addressed to Shawn Carmichael which appears under Tab MM of the Township's Application Record. There is no suggestion that an engineer has viewed the alterations and determined whether the changes satisfied current engineering standards.

11. In his evidence in July 2017 Mr. Robinson advised that he had not seen the work so could not comment about whether it satisfied current engineering standards.

12. No effort has been made to incorporate into the Drain the improved Bruce crossing and the alterations made to the Drain on the Carmichael farm.

13. The Bruces and the Moultons take no position about the situation on the Carmichael farm.

14. Mr. Carmichael does not dispute the allegations that the Drain was altered as it crosses his parents' farm without municipal or Conservation Authority knowledge, much less approval. He has offered no justification for the unauthorized alteration of the Drain. He has provided no indication that the deficiencies identified in the July 10, 2015 letter from the Township's Drainage Superintendent have been rectified. He acknowledges that the changes made to the Drain as it flows through his parents' farm have not been formally incorporated into the Drain. His position is that the issue of the relocated Drain on his parents' farm is unrelated to the Bruce crossing matter and should be dealt with separately.

15. The Township has put both issues before the Court of the Drainage Referee in its application. Both aspects of the case relate to the same municipal drain and both matters involve the Carmichaels. I have ruled that I will address both matters which are brought to the Court by the Township's application.

16. Against this background, during the January 2018 telephone conference call, I expressed to the parties my concern that, regardless of the allocation of financial responsibility, there needed to be a way to formally incorporate as part of the Drain the changes made to the Bruce crossing and the changes made to the Drain on the Carmichael farm. In my mind a drainage engineer would need to attend and view and evaluate these changes to the Drain and to be satisfied that the changes satisfy current engineering standards. If they do not, then the engineer would need to identify what needs to be done so that they do conform to current standards. Even if the changes made to the Bruce crossing and on the Carmichael faint are determined to be satisfactory, I envisage that a further engineer's report would be required to incorporate formally the changes into the Drain. It was in the course of struggling with how to proceed that I decided I needed input from Mr. Robinson. To that end the January 2018 telephone conference call was adjourned to the February 12, 2018 telephone conference call which included the participation of Mr. Robinson.

17. In the course of that February 12, 2018 procedural pre-hearing conference, it evolved that a process under section 78 of the Drainage Act should be initiated and that the Township should appoint Mr. Robinson to undertake that exercise, This is the sort of process which should have been undertaken leading to the improvement of the Bruce crossing and to the relocation of portions of the Drain on the Carmichael farm. It is acknowledged that the Section 78 process under the Drainage Act is burdensome but that is the nature of the legislation which is a very powerful tool to be used carefully, judiciously and with due process having regard for all of the stakeholders assessed to the Drain.

18. I have therefore decided to Order the Township to initiate a Section 78 process under the Drainage Act and, in that connection, to pass the following resolution:

"That council appoint Andrew Robinson, P. Eng. of Robinson Consultants Inc. to complete an amendment to the existing Engineer's Report for the James Reilly/Dewitt-Richter Municipal Drain, under Section 78 of the Drainage Act, to incorporate the changes to the culvert and crossing on the Bruce property and the relocation of the drain and culvert on the Carmichael property. The amendment report is to include an assessment schedule for the costs of the amendment report and any additional modifications required at the two properties. The amendment report is not to deal with the assessment and distribution of costs to date for modifications and related costs incurred since issuance of the Certificate of Completion dated November 28^th, 2012 for the initial construction."

19. With some minor adjustments, this form of resolution was crafted by Mr. Robinson and offered for consideration after the February 12t^h telephone conference call. The parties have had an opportunity to review and comment on upon it.

20. This disposition will lead to the regularization, under the Drainage Act, of the Bruce crossing and of the changes made to the Drain on the Carmichael farm. It will also permit the crystallization of the amounts in issue to this point in time. Expenses going forward in connection with the Section 78 process will be addressed as part of and in the course of that process.

21. I will return to my potential involvement in the Section 78 process at the end of these reasons.

22. With respect to the amounts in issue to this date, essentially those amounts relate to the 2013 improvement of the Bruce crossing. The question before me now is how those expenses should be borne and in what proportion. The candidates for payment are, in my preliminary view, the Bruces, the Township to be paid out of its general funds, and the Drain to be apportioned in accordance with the assessment schedule attached to Most Recent Engineer's Report.

23. There will also be the matter of the parties' costs of this proceeding in the Court of the Drainage Referee. This cannot be addressed until the results of the hearing on the merits are known. Any settlement offers will be pertinent to the costs decision.

24. I would think that, with the crystallization of the amounts in issue, there will be little need for evidence. Ideally, the amount can be agreed upon between the parties. I ask that the amount be determined without regard for Provincial subsidization. I can hear about the effect of subsidization but I want to be able to deal with an allocation of money before subsidy — which may or may not be available depending upon the allocation.

25. In his June 19, 2013 Memorandum to the Township, at Tab Y of the Township's Application Record, Mr. Robinson gave it as his view that the improvements to the Drain crossing requested by the Bruces should be at the expense of the landowner as a special benefit. Again, if there can be agreement on this point, it would not be necessary to call Mr. Robinson as a witness. I would then be hearing evidence and submissions about why, in the circumstances, the expenses for the Bruce crossing should be paid otherwise than by the landowner as a special benefit.

26. I presume that the hearing will be based in large measure on the supporting documentation provided with the Township's Application Record. Assuming there is agreement about the amounts involved and a brief appearance by Mr. Robinson to confirm his July 2013 opinion, I anticipate hearing, in addition, evidence from someone representing the Township and from one of the Bruces. Given that the Township has conceded to the fundamental objection of the Carmichaels and the Moultons, I do not expect much or any evidence from them. I ask that they please advise if this assumption is incorrect and, if it is, who they intend to call as witnesses.

27. The balance of the hearing will be submissions by the parties about the allocation of the Bruce crossing expenses. I would think it should be completed in one day but would propose to reserve the courtroom for two days.

28. I ask for comments from the parties as well as a list of conflict dates in April and May, 2018.

29. Once I have comments and conflict dates I will arrange with the Courthouse for a courtroom and will issue a procedural order fixing the time and date for the hearing.

30. I return now to the Section 78 process which I have ordered be commenced.

31. In the normal course the section 78 exercise can proceed without the further involvement of the Court of the Drainage Referee. In the event of appeals, usually under Section 48 from the engineer's report and/or under Section 54 from an assessment decision by the Court of Revision, the appeal is heard and disposed of, the under the Drainage Act, by the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal"). Section 101 of the Drainage Act provides that the Tribunal's decisions under Sections 48 and 54, amongst other sections, are final.

32. Turning to the Referee's jurisdiction under Section 106, particularly clause 106(f), the Referee has broad authority over any matter or thing in relation to which application may be made to him or her under the Drainage Act. In my preliminary view, given the jurisdiction I have over the matters which are before me, I could assume appellate authority with respect to the section 78 process I have ordered.

33. I have heard Mr. Campbell's comment that, because I have the background of the case, my hearing of any appeals would be more efficient and reflect the broader context. My concern is that attendances in the Court of the Drainage Referee tend to be more formal and expensive, often with legal representation, as opposed to the less formal process adopted by the Tribunal.

34. If there is a sense that the parties wish me to remain available for any appeals which may arise from the Section 78 process I have ordered, I will consider doing so. At this time, I will not make a decision as I want first to hear from the parties about my jurisdiction to do so and their preference. I propose that this question be addressed at the time of the hearing to deal with the expenses incurred to date in relation to the 2013 improvement of the Bruce crossing.

35. If there are any difficulties arising out of this decision, I may be spoken to.

36. I am now and will remain seized.

37. As previously indicated, I ask for comments from the parties about witnesses and the length of the hearing to deal with the Bruce crossing expenses as well as a list of conflict dates in April and May, 2018.

Dated at London February 15, 2018

Andrew C. Wright

Acting Drainage Referee

Superior Court of Justice

Attention: Civil Registrar Brockville Court House

AND TO: Warren Leroy,

Ault & Ault,

Barristers & Solicitors

Counsel for The Corporation of the Township Of Edwardsburgh/Cardinal

AND TO: Shawn Carmichael

Agent for Robert and Betty Carmichael

AND TO: Gordon S. Campbell,

Aubry, Campbell, MacLean,

Lawyers — Avocats,

Counsel for David and Arlene Bruce

AND TO: Greg and Mary Ann Moulton,

Agent for Robert and Betty Carmichael