ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Goetz v South Bruce (Municipality), 2020 ONDR 2

DATE OF DECISION: 2020-09-29

Court File No.: CV-20-18 (Walkerton)

B E T W E E N:

MARK GOETZ, DAWN KENNEDY and PATRICIA GOETZ

Applicants

• and –

THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE

Respondent

ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) FRIDAY, THE 18th DAY ) OF SEPTEMBER 2020 )

ORDER

The Court of the Drainage Referee having appointed this day for a procedural Pre-Hearing conference by video 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, if necessary;

(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 background factual evidence of Mr. Stephen Brickman, P.Eng. one of the authors of the 2018 Engineer’s Report on the Filsinger Drain and the submissions of counsel for the applicants and counsel for the respondent Municipality, for the reasons which follow:

THIS COURT ORDERS that:

1. The presiding Referee may vary or add to these rules at any time, either on request or as it sees fit. He may alter this Order by an oral ruling, or by another written Order.

Parties

2. The correct name of the applicant initially identified as Dawn Goetz is Dawn Kennedy and the style of cause is amended accordingly.

3. As one of the original applicants, William Goetz died on August 21, 2020 and his Estate no longer has an interest in land affected by the Filsinger Drain, his Estate is removed as a party applicant, without costs, and the style of cause is amended to remove his name as an applicant.

4. The parties identified at the prehearing conference are:

Mark Goetz, Dawn Kennedy and Patricia Goetz, Applicants

Valerie M’Garry

The Corporation of the Municipality of South Bruce, Municipal Respondent

Paul Courey

Exhibits

5. Because preliminary hearings and the hearing of the merits are being conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, send hard copy or an electronic copy of the exhibit to the court at:

Superior Court of Justice Attention: Civil Registrar via e-mail to Hanna.Burnie@Ontario.ca Walkerton Court House 207 Cayley Street, Walkerton, Ontario N0G 2V

and when doing so shall identify the court file no.: Court File No. CV-20-18 and the exhibit identifier assigned by the presiding Referee; a copy of the letter or e-mail of transmittal shall be provided to the presiding Referee.

(e) Court Orders, the application, notices of motion, factums, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and factums should be filed with the court and item 5(d) applies mutatis mutandis.

6. At the time of the September 10, 2020 procedural pre-hearing conference and its continuation on September 18th, the following documents are part of the record:

Notice of Application issued March 13, 2020

Procedural Order issued April 22, 2020 giving directions as to the giving of notice of the procedural pre-hearing to be held on September 10, 2020

Exhibit No.: 1

Affidavit of Mark Goetz sworn March 4, 2020 with Exhibits “A” through “O” filed in support of the application - applicants to advise the court registrar of Exhibit No.

Exhibit No.: 2

Respondent Municipality’s Record in response including the Affidavit of Stephen Brickman, P.Eng. sworn July 9, 2020 with Exhibits “A” through “D”, the Affidavit of Leanne Martin sworn July 9, 2020, the Affidavit of Sid Vander Veen, P.Eng. sworn July 9, 2020 with Exhibit “A”, and the Affidavit of George Spence sworn July 9, 2020 - respondent Municipality to file, if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 3

Affidavit of service by mail on August 14, 2020 of notice of the September 10, 2020 procedural pre-hearing conference sworn by Ian Nielson on August 26, 2020. - applicants to file if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 4

Affidavit confirming that notice of the September 10, 2020 procedural pre-hearing conference and of other documentation referred to in the notice were available for inspection at the Municipal respondent’s offices and on the Municipal respondent’s website sworn by Tracy Grubb on July 21, 2020. - respondent Municipality to file if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 5

Copy of the notice of the September 10, 2020 procedural pre-hearing conference referred to above. - to be filed by the applicants.

Exhibit No.: 6

Engineer’s Report on the Filsinger Municipal Drain issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng., including plan and profile (the “Engineer’s Report”). - to be filed by respondent Municipality.

Decision of the Agriculture, Food and Rural Affairs Tribunal (the “Tribunal”) related to the Filsinger Municipal Drain and appeals under sections 48 and 54 of the Drainage Act which decision was issued December 16, 2019 and is reported at 2019 ONAFRAAT 20 (the “Tribunal Decision”)

Exhibit No.: 7

Engineer’s Report on the Filsinger Municipal Drain issued January 7, 1970 by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile (the “1970 Engineer’s Report”). - to be filed by the respondent Municipality.

Decision of Referee O’Brien issued April 26, 2002 in the case of King v. Kawartha Lakes (City), reported at 2002 ONDR 5

Decision of Justice MacFarland for the Divisional Court released February 25, 2004 in the case of King v. Kawartha Lakes (City), reported at [2004] O.J. No. 974

Exhibit No.: 8

Curriculum Vitae of Stephen Brickman, P.Eng. and his Acknowledgement of Expert’s Duty. - to be filed by respondent Municipality.

Exhibit No. 9

Curriculum Vitae of Sid Vander Veen, P.Eng. and his Acknowledgement of Expert’s Duty - to be filed by the respondent Municipality.

Decision of Referee William Turville issued March 17, 1988 in the case of Kilberg v Walace (Township), reported at 1988 ONDR 1

Exhibit No. 10

Respondent Municipality’s Motion Record dealing with jurisdictional issues and the striking of evidence, including Notice of Motion and supporting affidavit sworn by Awstin Pettit on August 31, 2020 including Exhibit A - respondent Municipality to file if not already done or, if it has, to advise the court registrar of Exhibit No.

7. The documents that have exhibit numbers will retain their exhibit numbers through the hearing(s) on the merits of this case. New exhibits will be identified by the next ensuing exhibit number and be added to the list as the hearing(s) progresses.

8. The documents listed are intended to reflect those things which would normally be filed in court or which would be used in the course of the hearing; it does not include but does not intend to dispense with routine items such as appearances, affidavits of service required by the court staff for filings such as the application, appearances, any motions and routine affidavits of service for supporting affidavits.

Order of Proceeding

9. The order in which evidence will be given at the hearing of the merits will be as follows:

(a) One of the engineers who authored the 2018 Engineer’s Report shall give factual background evidence;

(b) The applicants will then call their evidence;

(c) The respondent Municipality will call its witnesses; the respondent Municipality shall re-call the engineer who gave background evidence under item 9(a) above to provide both factual and opinion evidence; and

(d) The applicants may then call reply evidence.

10. Final submissions by the parties will proceed in the same order as specified in item 9 above.

Issues

11. With respect to the respondent Municipality’s motion to strike from the record portions of the applicant Mark Goetz’s affidavit, sworn March 4, 2020, in support of the application, the following dispositions are made:

(a) The Court has no jurisdiction to hear an appeal of the Tribunal Decision made under sections 48 and 54 of the Drainage Act, having regard for section 101 of that Act, nor does the Court have any inherent jurisdiction or statutory authority to review the Tribunal Decision by way of judicial review.

(b) The remaining issues to be addressed are:

(i) Is this application statute barred because it was not commenced until after the expiry of the 40-day period prescribed by subsection 47(1) of the Drainage Act (sometimes referred to as the “Act”)?

(ii) Is an engineer’s report prepared in response to a request for improvement under section 78 of the Act which abandons the then existing drainage works established under the Act and authorizes the construction of new drainage works in its place something that is authorized by section 78 of the Act?

(iii) If not, then is the Engineer’s Report, as modified by the Tribunal Decision (the “2018 Engineer’s Report”) such a report?

(iv) If the answer to item 11(b)(iii) above is yes, should the 2018 Engineer’s Report be set aside, and if yes, what ancillary relief should the Referee order to respond to the September 2, 2014 request for improvement made by George Spence?

(v) Is there any improper action, neglect, default or omission on the part of the Municipality that would justify the Referee directing, pursuant to subsection 118(2) of the Act, that the whole or any part of the costs and expenses of the Municipality should be borne out of the general funds of the Municipality as opposed to those costs and expenses being assessed to the Drain as contemplated by subsection 118(1) of the Act; and, if yes, what portion, if not all should be paid out of the general funds of the Municipality?

(c) With respect to the affidavit of Mark Goetz sworn on March 4, 2020 and filed in support of the application, the following are germane to the issues or provide useful background information or documentation:

(i) Paragraphs 1 and 2;

(ii) The first part of paragraph 3 ending with “Exhibit “B” are copies of the Council resolutions in that regard.” (excluding footnote 1);

(iii) Paragraph 11;

(iv) The first sentence of paragraph 12;

(v) Paragraph 17;

(vi) Paragraph 18, excluding references to “the Walkerton water tragedy”;

(vii) Paragraphs 19, 20 and 21;

(viii) The first two sentences of paragraph 22 ending with “February 7th, 2017”;

(ix) Paragraph 23;

(x) The first two sentences of paragraph 27, ending with “to hear and debate them.”;

(xi) Paragraph 39;

(xii) The first two sentences of paragraph 40 ending with “September 23, 2014”;

(xiii) Paragraphs 42, 43, 44 and 45;

(xiv) Paragraph 74;

(xv) The first sentence of paragraph 75 ending with “valid and confirmed”;

(xvi) Paragraph 76;

(xvii) Exhibits “A”, “B”, “F”, “H”, “I”, “J”, “K”.

(d) The respondent Municipality need not lead evidence responding to the evidence in those parts of Mark Goetz’s March 4, 2020 affidavit which are not included in the list above provided that, if background information or documentation provided in the listed parts of the affidavit need to be corrected or elaborated upon, the respondent Municipality should provide evidence to that effect.

Timeliness of Application

12. With respect to the applicants’ motion to extend the time for bringing an application under section 47 of the Act and the respondent Municipality’s application to dismiss the application as being statute barred under section 47, the following dispositions are made:

(a) Pursuant to section 113 of the Act, the applicants’ motion is allowed and the time for bringing this applicant is extended to permit it to be commenced when it was on March 13, 2020;

(b) The respondent Municipality’s motion to dismiss the application on the basis that it was not commenced in time is denied; and

(c) Item 11(b)(i) above is eliminated from the issues list for the hearing of the merits.

Next Steps

13. There will now be a further procedural pre-hearing conference to estimate the amount of time required for the hearing, to set the commencement date for the hearing and to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit. The time and date for that pre-hearing conference will be established by the presiding Drainage Referee after consultation with counsel for the parties.

General Matters

14. When any document is required or permitted to be served, it shall be served by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service) and shall be sent to:

(a) the party’s representative, if any;

(b) where the party is an individual and is not represented, to that party directly, where that party has provided an address for service and/or an e-mail address;

(c) where that party is a corporation and is not represented, to the corporation directly, to the attention of an individual with apparent authority to receive the document.

15. For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee until the commencement of the trial at which time the Referee or Acting Referee presiding at the trial shall become the presiding Referee for the purposes of this Order.

16. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.

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

18. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.

Dated at London this September 29, 2020.

Andrew C. Wright Acting Drainage Referee

REASONS

1This procedural pre-hearing conference was held by video conference on Thursday, September 10, 2020. It was adjourned to be continued on Friday, September 18th to hear the respondent Municipality’s jurisdictional motion to limit the evidence, both applicants’ and respondent’s, to that which is germane to the issues before the Court. These reasons and the Order with which they are associated deals with procedural matters to the extent they can be addressed until the issues for hearing are settled. They also make decisions with respect to the Municipality’s jurisdictional motion.

2A further procedural pre-hearing conference will be held shortly to schedule and organize the hearing on the merits.

Notice of Pre-Hearing Conference

3Notice of the procedural per-hearing conference was given by ordinary mail to the current owners of lands identified in the Engineer’s Report on the Filsinger Municipal Drain issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng., as modified by the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal issued December 16, 2019 (the “2018 Engineer’s Report”). Those lands identified in the 2018 Engineer’s Report are those lands assessed or awarded allowances. Notice was mailed to the owners of those lands at their respective addresses as shown on the last revised assessment roll.

4In accordance with this court’s procedural Order issued April 22, 2020 that notice was mailed on August 14, 2020. Proof of that mailing was filed with the court in the form of an affidavit of service.

5In accordance with that April 22nd procedural Order, copies of the Notice and of other documentation referred to in the notice of this pre-hearing conference were available for inspection at the Municipal respondent’s offices and on the Municipal respondent’s website. Proof to that effect was filed with the court in the form of an affidavit.

6None of the landowners served with the notice of the pre-hearing conference sought party status. As a result, the only parties to this matter are the applicants and the respondent Municipality. I will return to the identity of the applicants below.

7The attempt has been made to emulate, as much as possible, a hearing in a courtroom with a public gallery, the notice of this procedural pre-hearing conference invited those who wished to monitor the conference to log into the video conference to observe. The following persons sought to observe from the electronic gallery:

Mr. George Spence, a landowner affected by the Filsinger Drain, and

Mr. Donald Reinhart, for his mother, Bernice Reinhart, who is a landowner affected by the Filsinger Drain.

8Login credentials were sent to both of these persons. Only Mr. Spence and his wife monitored the pre-hearing. They were allowed into the video conference hearing with their microphone muted so they could observe but not participate in the proceedings.

9Also participating in the video conference on September 10th were:

• counsel for the applicants, Valerie M’Garry,

• counsel for the Municipal respondent, Paul Courey,

• Mark Goetz, one of the applicants,

• Leanne Martin, the Chief Administrative Officer of the Municipal respondent, and

• Stephen Brickman, P.Eng., one of the authors of the 2018 Engineer’s Report.

10Ms M’Garry and Mr. Goetz called in by telephone as they were unable to connect via video conference on September 10th; they were able to login to the continuation of the video conference pre-hearing on September 18th.

11As set out in the Notice of the procedural pre-hearing conference, the purpose of Mr. Brickman’s attendance was to give factual background evidence to assist the presiding Referee to case manage this application to a hearing of its merits.

12The procedural pre-hearing conference was recorded and copies of the audio/video recording have been provided by the presiding Referee to counsel for the parties.

13As mentioned previously, the parties are the applicants and the respondent Municipality. In the weeks before the pre-hearing conference on September 10th, counsel for the applicants advised that Dawn Kennedy is the correct name of the applicant initially identified as Dawn Goetz. With the consent of the respondent Municipality, the style of cause is amended to reflect this name correction.

14The other thing is that the applicant William Goetz passed away on August 21, 2020. Mr. William Goetz, with his widow, the applicant Patricia Goetz, had an interest in land affected by the Filsinger Drain. They owned the land as joint tenants so the land is now owned by Patricia Goetz as surviving joint tenant and the Estate has no continuing interest in the lands. The respondent Municipality has agreed to the withdrawal of the Estate of William Goetz, on an without cost basis, and it is so ordered; the style of cause is amended to delete William Goetz as an applicant.

Purpose of Procedural Pre-Hearing Conference

15As described the notice, the purpose of the procedural pre-hearing conference was:

(a) to identify parties;

(b) to identify the issues;

(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.

16In addition, the Municipal respondent brought a preliminary motion returnable on September 10, 2020 to clarify the Referee’s jurisdiction and authority to deal with certain issues which have been raised in the application and to strike out those portions of the affidavit supporting the application which are not relevant.

17It was decided that Mr. Brickman would give his background evidence first and then the motion would be argued. As the organization of the hearing, as outlined in item 15 above, would depend upon the outcome of the Municipal respondent’s motion, that part of the day’s agenda was be deferred to another date after the court’s decision about jurisdiction had been rendered.

18Counsel for the applicants advised that she had not had enough time to address the respondent Municipality’s motion on September 10th, so the procedural pre-hearing conference was adjourned to continue on Friday September 18th. Mr. Brickman did not participate on September 18th nor did Donald Reinhart, though both were provided with login particulars.

Documents and Exhibits

19Before getting into the evidence Mr. Brickman gave on September 10th, something should be said about keeping track of and identifying documentation and exhibits when conducting hearings by video conference. If the proceedings were conducted in a courtroom, exhibits would be filed with the court registrar and marked with an exhibit number and thereafter be maintained in the court file. When proceeding via video conference there is no physical ability to hand an exhibit to a court official. It is nonetheless essential that there be a formal court record of exhibits properly identified by number for future reference.

20The protocol devised by the court to deal with exhibits in the course of a video conference hearing is set out in paragraph 5, 6, 7 and 8 of the Order to which these reasons are attached.

Background Evidence

21Mr. Brickman is a drainage engineer with several years of experience with the Drainage Act and is one of the signatories of the 2018 Engineer’s Report. His curriculum vitae was entered as an exhibit, as was his Acknowledgment of Expert’s Duty, and he was qualified as an expert witness.

22The Municipal respondent is the result of a municipal restructuring amalgamation of the former Townships of Carrick and Culross, the hamlet of Formosa, and the villages of Mildmay and Teeswater. Mr. Brickman knows that this amalgamation occurred after the Filsinger Municipal Drain was establish and before the 2018 Engineer’s Report was issued but was unaware of the date when the respondent Municipality was created.

23The Filsinger Municipal Drain was established in 1970 under the authority of the report on the Filsinger Municipal Drain issued January 7, 1970 by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile (the “1970 Engineer’s Report”). This report was in response to a petition. At the time of the 1970 Engineer’s Report, the Filsinger Municipal Drain was located in the Township of Carrick and in the Village of Mildmay.

24Mr. Brickman was asked to identify the petitioners for the 1970 Engineer’s Report and the lands they owned at the time. He was not able to provide that information.

25Mr. Brickman was also asked about the Bruce County Official Plan or the South Bruce Official Plan and the land use designations of lands in the drainage area of the 2018 Engineer’s Report. He was not able to provide any of this Official Plan information.

26The use of the land surrounding Mildmay to the east in the watershed of the existing drain (the “Existing Drain”), being the one established under the 1970 Engineer’s Report, is predominantly agricultural. The land use in Mildmay through which the Existing Drain runs is single family residential.

27Mr. Brickman did not know the current population of the community of Mildmay. He was able to say that much of Mildmay has full municipal services: municipal water, sanitary sewers and a storm sewer system as well as a natural gas local distribution system. Mr. Brickman did not know whether the South Bruce Official Plan requires that any new development in Mildmay must be on full services.

28There is a significant watercourse running through the core of Mildmay well to the north of the Filsinger Municipal Drain. Mr. Brickman was aware of its existence but could not provide the name of the watercourse nor how far it is to Lake Huron.

29The plans attached to the 1970 Engineer’s Report and to the 2018 Engineer’s Report show a boundary for Mildmay. At the time of the 1970 Engineer’s Report the Village of Mildmay and the Carrick Township were separate municipalities so perhaps the boundary is the municipal boundary. In the post amalgamation world of South Bruce there is no municipal boundary and no evidence was provided as to what the Mildmay boundary represents as it appears on the plan attached to the 2018 Engineer’s Report.

30It is to be noted that the plan attached to the 1970 Engineer’s Report shows a railway line running through Mildmay. That rail line is not shown on the plan attached to the 2018 Engineer’s report. Mr. Brickman confirmed that the railway right-of-way has now become part of the Bruce County Rail Trail.

31The existing drain (the “Existing Drain”), being the one established under the 1970 Engineer’s Report, is a closed, piped/field tile system which outlets into a natural watercourse in Mildmay. From the outlet the existing drain and moving upstream the Existing Drain consists of

(a) 18 inch (450 mm) pipe for 200 feet (61 metres) from station 0+00 to station 2+00; station 0+00 is located on the north side of John Street to the east of Ellen Street in Mildmay;

(b) while it does not form part of the Filsinger Drain, in the location of the 18 inch (450 mm) pipe and above it, there is a 40 inch (1,000 mm) corrugated steel pile to convey overflow and surface flows;

(c) there is then 806 feet (245 metres) of 16 inch (400 mm) field tile from station 2+00 to station 10+06 which goes upstream to the north-east side of what was then Bruce County Road 16 and is now a local road known as Bismark Road North;

(d) there is then a 94 foot (29 metre) road crossing under what was then a County Road 16 (now Bismark Road North) with a 15 inch (380 mm) pipe between station 10+06 to station 11+00; and

(e) then there is an 875 foot (266 metre) run of 14 inch (350 mm) tile from station 11+00 to station 19+75.

32There is a catchbasin at station 19+75. That location is on the boundary of what is now one of the applicants’ property and was, at the time, the property of one of the Geotz family (roll no. 4-175) and the property immediately to the east, now owned by G. Spence (roll no. 1-202).

33The Existing Drain flows in a south-easterly direction from the catch basin at the property boundary, it then jogs north-easterly under Bismark Road North and then continues south-easterly to outlet into an existing natural watercourse in Mildmay on the north side of John Street to the east of Ellen Street in Mildmay.

34The 2018 Engineer’s Report proposes that the Existing Drain be physically destroyed and formally abandoned as a municipal drain under the Drainage Act and that a new drain (the “Proposed New Drain”) be constructed and installed. The Proposed New Drain is mostly a closed drain but, at the downstream end of the closed drain, it outlets into a 50 to 80 metre long open ditch before it outlets into a natural watercourse.

35The upstream part of the open ditch is located north and east of the intersection of Ellen Street and John Street in Mildmay. This location is in the vicinity of station 0+00 of the Existing Drain. The open ditch flows for about 50 metres north-easterly toward Absalom Street West, which is a County Road in this location. The Proposed New Drain then flows easterly through a 900 mm pipe under Absalom Street West at a location just north of James Street. From that 900 mm pipe the Proposed New Drain outlets into a short section of open ditch and then empties into an existing natural watercourse.

36Moving upstream from the open ditch,

(a) there are to be two parallel 53 metre long “low-flow” pipes of 600 mm diameter under John Street and under the intersection of John Street and Ellen Street to emerge southwest of the intersection where there is a catch basin. There is also a third 600 mm “surface flow” pipe in this location which is located above the two parallel “low-flow” pipes.

(b) The Proposed New Drain then moves upstream in a 750 mm pipe on a south-westerly alignment approximately following a course similar to the Existing Drain up to station 0+203 at which point it deviates from the approximate alignment of the Existing Drain and turns southerly to station 0+248 and then westerly to avoid encroaching upon potentially developable parts of property owned by one R. Foreman (roll no. 6-176-01).

(c) Beyond the Foreman land from station 0+353, the Proposed New Drain goes upstream in a westerly direction in a 675 mm pipe to Bismark Street North at station 0+445.

(d) The Proposed New Drain crosses to the south side of Bismark Street North to station 0+475 and;

(e) thence it goes upstream in a 600 mm pipe to station 0+738 which is a catch basin at the boundary between the Geotz property (roll no. 4-175) and the Spence property (roll no. 1-202).

37There are a few places where the Existing Drain and the Proposed New Drain are in similar locations, particularly the Existing Drain run of field tile from the boundary of the Goetz and Spence properties down to Bismark Street, North. When the Proposed New Drain is constructed and operational, the Existing Drain is to be “destroyed”, to quote the 2018 Engineer’s Report. Mr. Brickman advises that this means that the Existing Drain is to be broken up so it is not capable of conveying water and the rubble is to be left in place.

38Mr. Brickman advised that the watershed of the Proposed New Drain is 163.3 hectares (403.52 acres). He was unable to advise of the area of the watershed of the Existing Drain.

39The Existing Drain provides an outlet for water from parts of the municipal storm sewer system at the intersection of Ellen and John Streets in Mildmay. It is intended that the Proposed New Drain will do so as well and, in addition, the Proposed New Drain will provide an outlet for water from the municipal storm sewer system in Absalom Street, West.

40The 2018 Engineer’s Report found the Existing Drain to be in poor repair. It seems that there was little or no maintenance and repair of the Existing Drain from the time it was installed. There is no record of any request for the Existing Drain to be repaired under section 79 of the Drainage Act. Mr. Brickman is aware of one request for repair some time in the 2010 to 2012 period. This was a request for the removal of tree roots which had gotten into the Existing Drain. Mr. Brickman does not think that any formal notice was given under section 79 of the Act in connection with that particular repair.

41There was a request for improvement of the Existing Drain made in May of 2002 by Mr. G. Spence, the same person who asked for the improvement in 2014 which initiated the process leading to the 2018 Engineer’s Report. That 2002 request for improvement was made pursuant to section 78 of the Drainage Act and resulted in an Engineer’s Report issued February 6, 2003 by Gamsby and Mannerow Limited and signed by Wm. J.Mannerow, P.Eng. That report was never adopted and there were no appeals heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”).

42It is to be observed that a request for an improvement under section 78 of the Drainage Act is not a request for maintenance and repair under section 79 of the Drainage Act such as to expose the Municipality to liability for non-repair if they fail so to do within 45 days or to an order by the Court of the Drainage Referee to compel the repair.

43There does not seem to have been an attempt to restore the Existing Drain to the condition described in the 1970 Engineer’s Report before embarking upon the quest for an “improvement” under section 78 of the Drainage Act.

44Mr. George Spence made another request for improvement of the Existing Drain on September 2, 2014. That request was made under section 78 of the Drainage Act. That request initiated the process leading to the 2018 Engineer’s Report.

45As previously mentioned, the 2018 Engineer’s Report was issued on September 12, 2018 by Dietrich Engineering Limited.

46The South Bruce By-law adopting the 2018 Engineer’s Report is By-law No. 2018-67. It was given first and second reading as a provisional by-law on December 18, 2018.

47On January 15, 2019, notice of the provisional by-law was given under subsection 46(2) of the Drainage Act to assessed owners and advised of the sitting of the Court of Revision.

48The Tribunal held a hearing on November 12, 13 and 14, 2019 of appeals under sections 48 and 54 of the Drainage Act and issued its decision on December 16, 2019.

49South Bruce By-law No. 2018-67 was given third and final reading on February 11, 2020.

50The Notice of this application was issued on March 20, 2020.

51Mr. Brickman’s background evidence was completed at the time of the September 10, 2020 pre-hearing conference before it was adjourned to September 18th.

Jurisdictional Question

52I now turn to the respondent Municipality’s motion to strike significant portions of the affidavit sworn by the applicant Mark Goetz in support of the application.

53As previously mentioned, counsel for the applicants advised the Court on September 10, 2020 that she was not prepared to argue the Municipality’s motion on that day and asked for time to prepare. The procedural pre-hearing conference was adjourned to Friday September 18th to accommodate.

54There is much in the Mark Goetz affidavit (sworn March 4, 2020) in support of the application which speaks to the Tribunal hearing process (November 12, 13 and 14, 2019 hearing) and to its decision (issued December 16, 2019). That Tribunal process and decision related to the 2018 Engineer’s Report and appeals under sections 48 and 54 of the Drainage Act. The Tribunal decision is reported as 2019 ONAFRAAT 20.

55The decision of Referee Del O’Brien in the case of King v. Kawartha Lakes (City), 2002 ONDR 5 concludes that the Court of the Drainage Referee has no jurisdiction to hear an appeal of a Tribunal decision made under sections 48 and 54 of the Drainage Act, perforce of section 101 of that Act. The decision also decides that, constitutionally, the Court of the Drainage Referee has no inherent jurisdiction or statutory authority with respect to the prerogative writs (certiorari, mandamus and prohibition) by way of judicial review.

56The O’Brien decision was unsuccessfully appealed to the Divisional Court. The Divisional Court’s dismissal of the appeal is reported at [2004] O.J. 974.

57Before finally establishing an issues list for the hearing of this application on the merits, it is important to settle what jurisdiction this Court has and to do so before the hearing on the merits embarks upon a review of evidence about procedural and natural justice concerns about the Tribunal raised by Mr. Goetz in his affidavit supporting the application. I invited the applicants and the Municipal respondent to bring a motion to argue and otherwise assist to determine what my jurisdiction and authority is in this case and the evidence which is relevant to my jurisdiction and authority.

58The respondent Municipality’s motion does that.

59The jurisdictional questions raised, as I conceive them, are:

(a) Does the Court of the Drainage Referee have jurisdiction to hear an appeal of a Tribunal decision made under sections 48 and 54 of the Drainage Act, having regard for section 101 of that Act;

(b) If the answer is yes to item 59(a) above, then what errors did the Tribunal commit and how should the Referee correct them?

(c) Does the Court of the Drainage Referee have any inherent jurisdiction or statutory authority to review a decision of the Tribunal by way of judicial review?

(d) If the answer is yes to item 59(c) above, what errors did the Tribunal commit and are they such as to warrant setting aside the Tribunal decision?

(e) If the answer to item 59(d) above is that the is that the Tribunal’s decision is to be set aside, what ancillary relief should the Referee order with respect to the appeals under sections 48 and 54 of the Act that were before the Tribunal?

60The Municipality argues that the King v. Kawartha Lakes decision is indistinguishable and that, for the reasons given by Referee O’Brien, as endorsed by the Divisional Court, I have no jurisdiction or authority to review the Tribunal decision in this case and should hear no evidence that is relevant only to challenges of the Tribunal hearing in November 2019 or its decision in December 2019.

61The applicants agree that the King v. Kawartha Lakes decision, as endorsed by the Divisional Court, represents the current state of the law.

62I agree that this Court of the Drainage Referee has no jurisdiction to hear an appeal of a Tribunal decision made under sections 48 and 54 of the Drainage Act, having regard for section 101 of that Act, nor do I have any inherent jurisdiction or statutory authority to review a decision of the Tribunal by way of judicial review. This is consistent with the decision of Referee O’Brien in the King v Kawartha Lakes case as endorsed by the Divisional Court.

63With that determination made, the question is what to do about evidence in the Mark Goetz supporting affidavit.

64Counsel for the applicants argues that it is the applicants’ prerogative to include whatever they feel is relevant to a fulsome presentation of their case. Counsel for the respondent Municipality argues that anything that is not relevant should be expunged or struck from the record.

65The court’s intention is to limit the evidentiary controversy at the hearing on the merits to evidence that is focused on the issue that is to be decided. There is an expenditure of resources to prepare for and respond to evidence, not to mention the court time occupied by hearing the evidence. Those resources will cost someone money. A significant portion of the Municipality’s expenses for this process will be assessed to the Filsinger Drain or possibly the Municipality’s general rate. Those public resources should not have to bear the cost of preparing for and giving evidence which has little probative value as it pertains to the matters before the court.

66That said, the evidence which has been filed in support of the application is, in fact, part of the record. I do not intend to remove it from the record. I wish, however, to make it clear to the parties that I will disregard those things which I have identified as serving no useful purpose. The intention is that the respondent Municipality will not have to put in the effort and incur the expense of preparing for or of leading extensive reply evidence in connection with those parts of the Mark Goetz March 4, 2020 affidavit which are not included in the list identified in clause 11(c) of the Order to which these reasons are attached.

67I have not included in that list any evidence in the supporting affidavit of Mark Goetz sworn March 4, 2020 which in my view is relevant only to the section 48 and 54 appeals to the Tribunal, to the Tribunal hearing or to its decision.

68There is also commentary in the Mark Goetz March 4, 2020 affidavit which is disparaging of the manner in which municipal staff conducted themselves during the process. Similarly, critical comments are made about the Court of Revision meeting. I can envisage the Municipality feeling an onus to respond to these allegations at length and in detail. These matters have little or no bearing on the question of whether the project proposed by the 2018 Engineer’s Report qualities as a project under section 78 of the Drainage Act. Such evidence will have scant usefulness whereas addressing them will put the parties to considerable, unnecessary expense. I have therefore not included in the clause 11(c) list those parts of Mark Goetz’s affidavit which focus on the conduct of municipal staff during the process and of the Court of Revision and they will be disregarded.

69To provide background and context, those portions for Mr. Goetz’s March 4, 2020 affidavit providing historical information and documentation, including minutes of municipal meetings and municipal staff reports, will be allowed and are included in the clause 11(c) list.

70As previously said, the intention is that the respondent Municipality will not be to put to the effort and expense of preparing for or putting in extensive reply evidence in connection with those parts of the Mark Goetz March 4, 2020 affidavit which are not included in the list identified in clause 11(c) of the Order to which these reasons are attached.

71This determination that I have no authority in this case to sit in appeal of the Tribunal decision on the merits or by way of judicial review, that does not end the matter.

72The applicants’ material raises the issue of what is permitted or authorized as an improvement under section 78 of the Drainage Act. Here is what the Tribunal said about that in its decision:

Counsel for the appellants referred the Tribunal to the case of Kilberg v. Wallace (Township), 1988 ONDR 1, a decision of the Ontario Drainage Referee, reached after a hearing conducted pursuant to Section 47 of the Act in which the appellant requested that the Section 78 report be set aside. Section 47 provides that a landowner may appeal to the Referee where he/she is dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of the Act.

The Court of the Drainage Referee found that the engineer’s report was in excess of jurisdiction as the work proposed to be done exceeded the work permitted under a Section 78 report and the municipality should have proceeded by way of a Section 4 petition. The permitted projects for a Section 78 report are now set out in Subsection 78(1.1).

No appeal to the Referee has been taken pursuant to Section 47 with respect to this Report to the best of the knowledge of the Tribunal, and the time for filing such an appeal has long passed. The Tribunal has no authority to rule on whether the report complies with the Act, as this is an issue reserved to the Referee. In the absence of an Order or ruling from the Referee, we must assume that this Report is validly made under Section 78 and proceed accordingly.

73The issue was raised before the Tribunal and the Tribunal deferred to the jurisdiction of the Referee. The Tribunal also noted that the time for bringing an application under section 47 of the Act was past. I will return to the issue of the timeliness of this application below.

74I note that there is no reference to section 47 of the Drainage Act in the application. Counsel for the applicants advised that the reference in the application to section 45 of the Drainage Act is a typographical error and was intended to be a reference to section 47. (Section 45 deals with council’s consideration of an engineer’s report which has little or no relevance in this context.)

75The Kilberg v. Wallace (Township) referred to in the Tribunal Decision is a decision of Referee William Turville. It is now 30 years old and, since it was decided, subsection 78(1.1) has been added to the Drainage Act. Subject to receiving submissions from the parties on the point, my initial impression is that the principle enunciated in that case survives and may have application in this case.

76The questions arising are:

(a) Is an engineer’s report prepared in response to a request for improvement under section 78 of the Drainage Act which abandons the then existing drainage works and authorized the construction of new drainage works in its place something which authorized by section 78 of the Drainage Act?

(b) If not, then is the 2018 Engineer’s Report such a report?

(c) If the answer is yes, should the 2018 Engineer’s Report be set aside, and if yes, what ancillary relief should the Referee order to respond to the 2014 request for improvement made by George Spence?

Timeliness of Application

77Before getting to the merits of whether the Kilberg v. Wallace (Township) case has application, however, there is the question of the timeliness of this application.

78Subsection 47(1) of the Act provides as follows:

47(1) Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a notice of appeal shall be served upon the council of the initiating municipality within 40 days after the sending of the notices under section 40 or subsection 46(2), as the case may be.

79The notice under section 40 is not relevant in this case. The notice under subsection 46(2) of the Act, the giving of which commences the 40-day appeal period, is the notice to assessed owners of the sitting of the Court of Revision. As previously mentioned, that Notice was given on January 15, 2019.

80Also as previously mentioned, notice of this application was issued on March 13, 2020.

81When, on Friday September 18th, this issue was raised by the court with counsel for the applicants, she asked the court to exercise its authority under section 113 of the Drainage Act to extend the time to regularize the application notwithstanding the 40-day period specified in subsection 47(1). Counsel for the respondent Municipality advised the court for the first time of his intention to bring a motion for the summary dismissal of the application because it was out of time under section 47(1); and he opposed the applicants’ motion to extend time.

82Section 113 of the Act provides as follows:

113. The referee may, where he or she considers it proper, extend the time otherwise limited for appeals or other proceedings.

83Despite these countervailing motions raising this important preliminary matter, neither party had prepared or served motion material. To avoid further delay by adjourning for another period of days or weeks, arguments proceeded on Friday September 18th on the basis of the evidence already filed and part of the record. Also, the parties were given the opportunity to provide, on or before Friday September 25th, relevant jurisprudence and a summary of their respective submissions. Both parties made written submissions at the end of the day on September 25th and I have reviewed and carefully considered those submissions.

84At the time of the September 18th pre-hearing, the court asked that both counsel focus on reasons for the delay and prejudice to the parties.

85The applicants submitted that they did not launch an appeal to the Referee in the 40 days after the giving of notice on January 15, 2019 because at that time they had received a letter from the Municipality advising of the Court of Revision decisions and advising of the right to appeal to the Tribunal. That letter was dated March 8, 2019 and made no reference to the Drainage Referee.

86Counsel for the respondent Municipality pointed out that the applicants had legal representation during the process including at the Court of Revision hearing so should have been aware of the 40-day limitation period. He acknowledged that the applicants’ lawyer at the time was not a partitioner with extensive exposure to the Drainage Act but pointed out that the applicants’ current legal counsel was well versed in Drainage Act matters and that she had been retained for the Tribunal hearing in November of 2019. In his submission the application could and should have been launched before the Tribunal hearing.

87Counsel for the respondent Municipality suggested that, if the applicants had been commenced before the Tribunal hearing, the Tribunal would have stood down until the Referee had dealt with the question. He argued that foundational issues such as the validity of a petition or of a section 78 request for improvement should be addressed first.

88As for prejudice, counsel for the respondent Municipality referred to delay in getting to the drainage project but there was no suggestion or any evidence that any work has been done or that any contracts have been awarded for the construction contemplated by the 2018 Engineer’s Report.

89The delay associated with the proceeding in the court of the Drainage Referee would have been the same whether it was before or after the Tribunal hearing. I do not necessarily agree that, if this application had been brought in advance of the Tribunal hearing, the Tribunal hearing would have been or should have been stood down to await the decision of the Referee.

90The Court of the Drainage Referee does not control Tribunal proceedings and neither does the Tribunal direct how and when the Court of the Drainage Referee will proceed. Nonetheless, in practice, there is often liaison between the Referee and the Tribunal when they are both called upon to deal with appeals arising from the same drainage project. Very often, if a foundational element of a Drainage Act process is called into question, such as the validity of a petition, that question should be resolved by the Referee before the Tribunal gets to the details of the project, allowances and assessments. In this case, however, it is not the foundational section 78 request for improvement that is in issue. The issue before the Referee is whether the project described in the 2018 Engineer’s Report qualifies as a section 78 improvement and is therefore authorized by that section.

91What that project is can only finally be known once the Tribunal has made its decisions on appeals under section 48 of the Act. Had the section 48 appeals been allowed in whole or in part, a different project would then have to be tested against what is authorized under section 78. The applicants could not know if this application could or should be brought until they know the result of the Tribunal Decision.

92I am satisfied that the Referee has broad discretion pursuant to section 113 of the Drainage Act. It is remedial legislation and, in the circumstances where no prejudice has been shown, it is reasonable to exercise that discretion to permit a late appeal and to allow the applicants to have their day in court. The issue they have raised is one of some interest for the legal and engineering professionals in practise under the Drainage Act.

93Therefore, pursuant to section 113 of the Act, the applicants’ motion is allowed and the time for bringing this applicant is extended to permit it to be commenced when it was on March 13, 2020; and the respondent Municipality’s motion to dismiss the application on the basis that it was not commenced in time is denied.

Next Steps

94There will now be a further procedural pre-hearing conference to estimate the amount of time required for the hearing, to set the commencement date for the hearing and to deal with other things as may arise, including how the affidavit evidence already filed is to be used and cross-examined upon. The time and date for that pre-hearing conference will be established by the presiding Drainage Referee after consultation with counsel for the parties.