ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Goetz v South Bruce (Municipality), 2021 ONDR 2

DATE OF DECISION: 2021-02-12

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 12th DAY ) OF FEBRUARY 2021 )

ORDER

The Court of the Drainage Referee having heard the evidence in this matter on February 1st, 2nd and 3rd, 2021 and, upon hearing the submissions of counsel for the applicants and counsel for the respondent Municipality, for the reasons which follow:

THIS COURT ORDERS that:

1. The application is dismissed.

2. The expenses of the respondent Municipality arising from this proceeding shall be levied upon the lands assessed for construction of the Filsinger Drain as set out in the 2018 Engineer’s Report (as defined in the reasons which follow), as modified by the Tribunal Decision (as defined in the reasons which follow), and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for construction under the Drainage Act. For this purpose, the expenses of the respondent Municipality shall include any costs payable by the respondent Municipality and shall be net after deducting any costs payable to the respondent Municipality.

3. As to costs, if the parties are unable to agree, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.

Dated at London February 12, 2021.

Andrew C. Wright Acting Drainage Referee

REASONS

1This case is about the Filsinger Drain, drainage works constructed in 1970 to handle drainage from farm fields south of the Village of Mildmay in the County of Bruce. In 2014 one of the owners of one of the farms requested, pursuant to section 78 of the Drainage Act (the “Act”) that the Filsinger Drain be improved. The engineers appointed by the Municipality of South Bruce (the “Municipality”) prepared a report issued in 2018 in which the engineers proposed the abandonment of the 1970 drainage works infrastructure and the construction of new, replacement drainage works infrastructure. The proposed improved drainage works is to be lower and is to have significantly greater capacity than the 1970 drainage works. The changes were proposed in order to satisfy current engineering standards and to take into account changed circumstances in Mildmay and in the surrounding agricultural lands.

2The applicants ask that 2018 engineer’s report be set aside. They rely upon the decision of Referee Turville in a case called Kilberg v. Wallace (Township) reported at 1988 ONRD 1. It is a decision issued on March 17, 1988. Based on that decision the applicants say that the 2018 Engineer’s Report (as defined below in these reasons) and the drainage works infrastructure proposed therein are not authorized by section 78 of the Act.

Hearing and Witnesses

3After a number of case management pre-hearing conferences to narrow and refine the scope of the hearing, a three-day hearing was conducted commencing on Monday February 1, 2021. In the circumstances of the current pandemic, the hearing was conducted by video conference using the Zoom platform.

4Four witnesses gave evidence.

5Mr. Stephen Brickman, P.Eng. is a drainage engineer with several years of experience with the Drainage Act and is one of the signatories of 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., including plan and profile (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. Mr. Brickman gave background factual evidence at the beginning of the hearing and was later called by the respondent Municipality to give factual and opinion evidence.

6Mr. Mark Goetz is one of the appellants and is a farmer and landowner in the watershed of the Filsinger Drain. He has lived in the vicinity for most of his life. He is also Deputy Mayor of South Bruce and has been on the Municipal Council for two terms. While Mr. Goetz was not qualified as an expert witness, he has considerable local knowledge that was helpful. He gave evidence for the applicants.

7Much of Mr. Goetz’s evidence is incorporated in the reasons which follow. Without diminishing the importance of his evidence as reflected in these reasons, I wish to mention here points which he particularly emphasized in his evidence:

(a) Mr. Goetz reflected that the request for the section 78 project made by Mr. Spence in 2014 was for the correction of the culvert at the intersection of John and Ellen Streets in Mildmay and for the extension of the outlet downstream from that intersection to a location beyond Absalom Street, West. He is concerned that the project proposed by 2018 Engineer’s Report goes way beyond what was asked for and proposes to supplant drainage works infrastructure which has been in place since 1970 with entirely new infrastructure at a cost of half a million dollars that increases the capacity of the new infrastructure significantly.

(b) Mr. Goetz says that what is proposed amounts to new drainage works which are not authorized by section 78 of the Act and which requires a petition under section 4 of the Act. He indicated that the abandonment of the existing drainage works infrastructure is not authorized under sections 19 and 78 of the Act and must be authorized via process under section 84 of the Act, a process which has not been undertaken.

(c) Mr. Goetz also advised of the problem created by a major storm event in May 2000. That storm changed the course of water flow such that additional water was brought into the Filsinger Drain watershed. He said that the water flow appears to have been restored as a result of the Borth-Goetz Drain recently installed in 2019.

8Mr. Sid Vander Veen, P.Eng. has extensive knowledge of the Act and its workings. For many years he was employed by the Province with the Ministry of Agriculture, Food and Rural Affairs as one of the persons responsible for the administration of the Act. He has recently retired from that position. In his retirement he is engaged as a drainage engineer in private practise. He has a prodigious knowledge of decisions of the Court of the Drainage Referee and of the Agriculture, Food and Rural Affairs Appeal Tribunal. His curriculum vitae was entered as an exhibit, as was his Acknowledgment of Expert’s Duty, and he was qualified as an expert witness.

9Ms. Leanne Martin is the Chief Administrative Officer of the respondent Municipality. She was called to give factual evidence about the process.

10Mr. George Spence was called by the respondent Municipality. He is a farmer and landowner in the watershed of the Filsinger Drain. He is the one who made a request for the improvement of the Filsinger Drain which has resulted in the 2018 Engineer’s Report. Mr. Spence is a farmer and has lived in the vicinity for many years.

11As with Mr. Goetz, much of the evidence given by Mr. Spence is incorporated in the reasons which follow. Again, without diminishing the importance of his evidence as reflected in these reasons, I wish to mention here points which he particularly emphasized in his evidence:

(a) Mr. Spence has owned and operated his farm for 45 years. He advised that he grows hay and cash crops and has a 25-acre maple bush. He described the areas of his farm which are compromised by lack of drainage. He described how his farm is in the middle of the watershed, so he gets the run-off from others, including the Goetz lands. While there are others in the watershed who are lower, his farm receives and must handle a great deal of water coming down from others.

(b) Mr. Spence said that the water problem on his farm has gotten worse each year. He described his efforts with the Municipality to obtain relief. Those efforts are reflected in the narrative in these reasons below.

(c) Mr. Spence gave evidence that he was initially surprised by the high cost of the project as proposed in the 2018 Engineer’s Report, but he has since decided it is what needs to be spent.

Documents and Exhibits

12At the end of the hearing on February 3, 2021, the following documents were 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 “2018 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, Q.C., issued March 17, 1988 in the case of Kilberg v Wallace (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.

Interim Procedural Order issued September 29, 2020 reflecting a procedural hearing held on September 10, 2020 and continued on September 18, 2020 disposing for preliminary matters.

Procedural Order for the Hearing issued November 19, 2020 reflecting a procedural hearing held on November 13, 2020.

Exhibit No. 11

Letter dated April 28, 2020 from the Court of the Drainage Referee (Acting Referee Andrew Wright) addressed to Mr. Paul Courey, counsel for the Municipality, and to Ms. Valerie M’Garry, counsel for the applicants - to be filed by the respondent Municipality.

Township of Colchester v Township of Anderdon Township of Gosfield North v Township of Anderdon (1915), 1915 CanLII 576 (ON DR), 21 D.L.R., 277 (Ontario. Drainage Court)

The Minister of Indian Affairs and Northern Development v Ranville (1982) 1982 CanLII 202 (SCC), [1982] 2 S.C.R., 518

Decision of Referee William Turville, Q.C., issued July 12, 1985 in the case of King Truck v Blandford-Blenheim (Township), (1985) 1988 ONDR 1

Re: Information and Privacy Commissioner of Ontario and Niagara Parks Commission; (1999) Appeal – 980 330-1

Paul v British Columbia (Forest Appeals Comm.) 2003 SCC 55 6

Butchko v R., 2004 SKQB 140

R. v Chan, 2019 ONSC 783

Decision of Referee R.T. Johnston issued February 12, 1991 in the case of Campbell v Zorra Township reported at 1991 ONDR 1

Decision of Referee Delbert O’Brien, Q.C. issued October 19, 1998 in the case of MacSweyne et al v. Lochiel (Township) reported at 1998 ONDR 8

13The 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; the list 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.

14The Procedural Order for the Hearing listed above (issued November 19, 2020) required that, if counsel or a witness intended to rely upon case law or legislation, other than the Act, copies were to be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing. The presiding Referee had to abridge the time for complying with this requirement in connection with the last two listed cases which were introduced by Mr. Vander Veen as he was giving evidence.

Background

15The respondent Municipality 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. This amalgamation occurred on January 1, 1999. That date is after the Filsinger Municipal Drain was establish and before the 2018 Engineer’s Report was issued.

16The 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.

17The petition has been lost, so the identity of the petitioners for the 1970 Engineer’s Report and the lands they owned at the time is not known. That said, according to the 1970 Engineer’s Report, there was a petition by G. Filsinger and others that comprised a majority of an area requiring drainage. It appears, then, that there must have been at least three petitioners. Mr. G Filsinger is the predecessor in title to the lands currently owned by Mr. George Spence. As mentioned, Mr. Spence is the one who made a request for the improvement of the Filsinger Drain, which has resulted in the 2018 Engineer’s Report.

18The Bruce County Official Plan was originally adopted on May 20, 1997 and approved by the Ontario Municipal Board on November 16, 1999. There have been a number of Official Plan amendments since, including a 5-year review update, which was approved June 21, 2010. The Bruce County Official Plan has designated Mildmay as a Primary Urban Community.

19There is also a South Bruce Official Plan which focuses on that Municipality’s Primary Urban Communities, being Formosa, Mildmay and Teeswater. The South Bruce Official Plan was adopted on March 18, 2018 and approved on September 7, 2018.

20Judicial notice was taken of much of this Official Plan information. It is available on public websites, and none of the witnesses were sufficiently informed to speak to it. The point is that the County Official Plan came into effect after the 1970 Engineer’s Report was implemented, and the South Bruce Official Plan was adopted and approved in 2018 before the 2018 Engineer’s Report was issued.

21The Village boundary of Mildmay shown on the plan of the Filsinger Drain in the 1970 Engineer’s Report is the municipal boundary of the Village. The boundary of Mildmay shown on the plan of the proposed new drain in the 2018 Engineer’s Report is not a municipal boundary, but rather it is the boundary of the Mildmay Primary Urban Community established by the South Bruce Official Plan.

22Much of the land in the drainage area of the Filsinger outside of Mildmay is designated by the Bruce County Official Plan as Agricultural, with the exception of some land south and west of Mildmay, which is designated Environmental Protection. The Environmental Protection designation extends into the Mildmay Primary Urban Community.

23The current population of the community of Mildmay is about 1,200 persons. Statistics Canada reports a population of 2019 in 2016. Most of Mildmay has full municipal services: municipal water, sanitary sewers, a storm sewer system, and a local natural gas distribution system. The South Bruce Official Plan requires that any new development in Mildmay must be on full services.

24It should be noted that the servicing of Mildmay was completed in the period between 1974 and 1978. That is after the construction of the existing drain (the “Existing Drain”), being the one established under the 1970 Engineer’s Report. Significantly, the 1970 Engineer’s Report could not have taken into account flows now out-letting from then non-existent Mildmay storm sewers at the intersection of John Street and Ellen Street.

25The use of the land surrounding Mildmay to the south, west and east in the watershed of the Existing Drain is predominantly agricultural. The land use in Mildmay through which the Existing Drain runs is single-family residential.

26There is a significant watercourse running through the core of Mildmay well to the north of the Filsinger Municipal Drain. This watercourse flows from east to west and is known as the Otter Creek. It is a tributary to the Saugeen River, which outlets to Lake Huron at Southampton, some 45 kilometres to the northwest.

27It 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.

28The Existing Drain, being the one established under the 1970 Engineer’s Report, is a closed, field tile system with two culvert road crossings. It outlets into a natural watercourse in Mildmay. From the outlet of 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 pipe 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) field tile from station 11+00 to station 19+75.

29There 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).

30The date of the installation of the 40 inch (1,000 mm) corrugated steel pipe through the intersection of John Street and Ellen Street is unknown, but it is reasonable to expect that the 40 inch (1,000 mm) pipe has to do with the storm sewer installation in Mildmay in the late 1970’s and the outlet of those storm sewers at the intersection of John Street and Ellen Street.

31While the design standard for the Existing Drain is not set out in the 1970 Engineer’s Report, it was estimated by Mr. Brickman, based on field tile and culvert sizes, that the drainage coefficient design standard is 7.2 mm of rainfall per 24 hours.

32The Existing Drain is a closed, field tile system with two culvert road crossings which flows in a north-easterly direction from the catch basin at the property boundary, it then jogs north-easterly under Bismark Road, North and then continues north-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. The road authority responsible for Bismark Road, North for John Street and for Ellen Street is the respondent Municipality.

33The 2018 Engineer’s Report proposes that the Existing Drain be physically destroyed and formally abandoned as a municipal drain under the Act and that new drainage infrastructure (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 on the east side of Absalom Street, West.

34The 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.

35Moving upstream from the open ditch,

(a) there are to be two (2) 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 (2) parallel “low-flow” pipes. All three are of solid HDPE pile and the installation is to be done by the respondent Municipality.

(b) The Proposed New Drain then moves upstream in a 750 mm HDPE 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 concrete field tile to Bismark Street, North at station 0+445.

(d) It is to be noted that at station 0+353 the pipe size and type changes from 750 mm HDPE pipe to 675 mm concrete field tile. Station 0+353 marks the boundary (“Urban Boundary”) between the Primary Urban Community established by the South Bruce Official Plan and the agricultural lands to the south. Within the Urban Boundary the drainage works are designed to accommodate the peak flows produced by a two-year pre-development rainfall event. Upstream from station 0+353, outside of the Urban Boundary, the drainage coefficient design standard is 25 mm of rainfall per 24 hours. The engineering evidence is that there is no way to correlate a drainage coefficient standard to the peak flow in a two-year rainfall event, but based on pipe sizes, the 750 mm HDPE pipe can carry a third more water than the 675 mm concrete field tile. The design standard within the Urban Boundary of Mildmay is significantly greater than the design standard that was used outside of the Urban Boundary. HDPE pipe is used for stormwater management in urban settings whereas concrete field tile is not.

(e) The Proposed New Drain crosses to the south side of Bismark Street, North to station 0+475. This road crossing is through a 750 mm O.D. smooth wall steel casing to be installed by boring.

(f) Thence the Proposed Drain goes upstream in a 600 mm diameter concrete field tile 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).

36There 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. The road crossing of Bismark Street North will be in a new location and the old culvert will be blocked up with grout and abandoned in place. The crossing at the intersection of John and Ellen Street will require the replacement of the existing infrastructure, being the 18 inch (450 mm) pipe which is part of the Existing Drain and the 40 inch (1,000 mm) corrugated steel pipe which is not part of the Existing Drain.

37Mr. Brickman advised that the watershed of the Proposed New Drain is 163.3 hectares (403.52 acres). He also advised that the area of the watershed using the Existing Drain is 447 acres (180.1 hectares), although the assessed area from the 1970 Engineer’s Report is only 382 acres (154.6 hectares). In his view, the areas using the Existing Drain and the area that would use the Proposed New Drain are substantially the same.

38The Existing Drain, together with the 40 inch (1,000 mm) corrugated steel pipe which is not part of the 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.

39The 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. Mr. Brickman is aware of one request for repair sometime in the 2010 to 2012 period. This was a request for the removal of tree roots that had gotten into the Existing Drain. Mr. Brickman does not know of any formal notice given under section 79 of the Act in connection with that particular repair. There is no record of any request for the Existing Drain to be repaired under section 79 of the Drainage Act.

40There was a request for improvement of the Existing Drain made in May of 2002 by Mr. George 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. While there was an appeal to the Tribunal, the appeal was withdrawn before the appeal was heard.

41It 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.

42Aside from the root removal previously mentioned, there 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.

43Mr. George Spence made another request for improvement of the Existing Drain on September 2, 2014. That request was made under section 78 of the Act. That request initiated the process leading to the 2018 Engineer’s Report.

44In response to that request, the Council of the Municipality appointed Dietrich Engineering Limited on January 27, 2016.

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 ß48 and 54 of the 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.

Applicants’ Case

51As mentioned at the beginning of these reasons, the applicants rely upon the decision of Referee Turville in a case called Kilberg v. Wallace (Township) reported at 1988 ONRD 1. It is a decision issued on March 17, 1988. Based on that decision, the applicants say that the 2018 Engineer’s Report and the drainage works infrastructure proposed therein are not authorized by section 78 of the Drainage Act.

52The Kilberg v Wallace (Township) decision involved the Mayberry Drain in Perth County. The Mayberry Drain was first created under an engineer’s report in 1952. It consisted of a short main drain and three branches the aggregate length of which was 5,900 feet.

53Pursuant to a request under section 78 of the Act, an engineer’s report was prepared entitled the Mayberry Drain 1985. The report was provisionally adopted in December 1985 and was appealed to the Referee on the grounds that the proposed project was not authorized under section 78 of the Act.

54The decision about what was done in 1952 and what was proposed in 1985 may be gleaned from the following selected extracts from the decision:

The quality of this report prepared by the engineers is not in question, only its authority under Sec. 78 of the Act.

It appears from the evidence there is little dispute that the course of the now Mayberry Drain 1985 followed generally that of the original one constructed under Colonel Archibald’s report in 1952. It is as well quite evident from the exhibits filed that the drainage area in the 1985 report was similar to that drainage area in 1952, 125 acres to about 120 acres. Also, the changes in land assessed were very minimal, approximately 3% - 4%. The evidence of the engineers established clearly that the old drain was out of repair and is presently in need of repairs and improvement, and I so find. It was as well, established by the evidence that the change in land use from rural to urban in certain areas to commercial, caused a greater volume of water and required a larger capacity to handle it.

The third proposal in the preliminary report was provisionally adopted by By-Law No. 34-85 on the 2nd day of December 1985. It is highly unlikely that different engineering firms would design the identical scheme. In the final results, costs and design would be different.

Mr. Smart, a drainage engineer of some 13 years’ experience pointed out the differences in his 1985 report and the original design by Colonel Archibald. I would not have expected there to be a great similarity in view of the advanced engineering in the past 35 years.

Mr. Herbert Todgham a drainage engineer for over 40 years whose reputation is well known and respected, was of the opinion that the system designed in the 1985 report was basically a new drain precipitated by the many changes in present day conditions and that it was no longer an agricultural drain, but was in essence, a storm sewer system having increased capacity of some 15 times the original concept constructed in 1952.

55From these extracts it appears that the 1985 proposed drainage works infrastructure were to be in approximately the same location as the 1952 drainage works infrastructure and were to be used by the same drainage area properties. The 1985 proposed drainage works would be a closed drain for the most part; it is unclear but likely that the 1952 drainage works conveyed water in a pipe or tile. The difference is that the capacity of the 1985 version had been increased materially to satisfy then current engineering standards and changed circumstances in the watershed. It is also clear from the decision that the 1985 engineer’s report proposed that the 1952 drainage works infrastructure be abandoned as part of the drainage works under the Act upon completion of the 1985 proposed drainage works infrastructure.

56There are many similarities between what is now proposed for the Filsinger Drain and what was then proposed for the Mayberry Drain. Neither of the expert witnesses suggested that the two cases were distinguishable on their facts, nor did counsel for the Municipality make submissions to that effect.

57. Referee Turville then proceeded to set aside the 1985 report as not being authorized by section 78 of the Act.

58There appear to be two threads to the reasons of Referee Turville in the Kilberg v Wallace (Township) decision. The one is that an improvement must be to the drainage works that are in existence, regardless of whether the capacity and design parameters of the existing works may be out-of-date from an engineering standards perspective at the time of the improvement. The other factor is that Referee Turville appears to understand that the abandonment provisions of section 19 of the Act only apply in the circumstances of an engineer’s report arising from a petition.

59I will first address the abandonment question. I will then deal with Referee’s view of what is permitted as an improvement under section 78 of the Act and will, in that context, include a review of subsection 78(1.1) of the Act which now provides a definition of what projects are authorized as an improvement in section 78.

Abandonment

60. In my view the comments made in the Kilberg v Wallace (Township) decision about abandonment are obiter dicta, that is Referee Turville’s comments represent an observation which is not the basis of his ultimate decision to set aside the 1985 engineer’s report on the Mayberry Drain. Obiter dicta is less authoritative; it gives guidance but is not accorded the same degree of deference as should be given the ratio decidendi of a previous Referee’s decision.

61There are two places in the Act which refer to abandonment of a municipal drain. They are section 19 and section 84.

62The only other place in the Act where the word “abandon” appears is in subsection 50(2)(a), which describes one of the grounds for an appeal to the Tribunal under subsection 50(1) of the Act by a municipality, not the initiating municipality, affected by a proposed drainage project. This relates to an appeal of an engineer’s report; it does not provide a mechanism for the abandonment of all or a part of a municipal drain.

63Section 19 and section 84 are set out below:

Engineer may Recommend Abandonment of Drain

19 The engineer in the report may recommend the abandonment of any drain or part thereof that is no longer useful or that is being supplanted by a new drainage works.

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 date the municipality’s notice was sent, any owner sends a notice to the clerk of the municipality requesting that the report of an engineer be made on the proposed abandonment.

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.

Engineer’s Report may be Required

(3) If an owner sends a notice to the clerk within the 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.

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.

Abandonment by Council

(5) If no owner sends a notice to the clerk within the 10-day period in accordance with subsection (1) or if the engineer’s report, as it may be altered on appeal, recommends the abandonment of the drainage works, the council may by by-law abandon the drainage works, and thereafter the municipality has no further obligation with respect to the drainage works.

Disbursement of Remaining Funds

(6) Any money remaining to the credit of the drainage works after it is abandoned shall be divided proportionately among the owners of lands and roads assessed therefor.

64Section 19 of the Act contemplates abandonment of all or part of any drain in the context of an engineer’s report. Thurston Kee, counsel for the applicant in the Kilberg vs Wallace (Township) case, submitted that “section 19 of the Act applies to a petition drain only” and that otherwise authority under section 84 must first be obtained. It appears that Referee Turville was persuaded to that view.

65To quote from Referee Turville’s decision:

Accordingly, the engineer as well does not have the authority to abandon an existing scheme under Sec. 78 and at the same time take the position that this work is not new work, a prerequisite of Sec. 19.

66With respect, I am troubled by this part of Referee Turville’s decision both because of the language of section 19 and also because of how section 19 appears in a part of the Act entitled: “Engineer’s Report”.

67That “Engineer’s Report” part of the Act starts with section 11 which describes the duties of an engineer appointed under the Act. There is no doubt that section 11 applies to engineer’s reports whether propounding a petition drain or an improvement under section 78.

68Section 12 of the Act deals with engineers’ access to land in the performance of their duties and obligations under the Act. Again, there is no suggestion that this has a different application depending upon whether the engineering work was initiated by petition under section 4 of the Act or by request for improvement under section 78.

69Section 13 of the Act deals with what is required of the engineer in the way of a survey. Again, this applies whether the engineer’s work arises from a petition or a request under section 78.

70Section 14 of the Act speaks to covered drainage works and the sufficiency of capacity of any such covered drainage works. Again, no one has questioned that this section applies to both a petition drain and an improvement under section 78.

71Section 15 of the Act requires drainage works to be carried to a sufficient outlet. This section applies to all drainage works regardless of whether initiated by petition or by request for improvement.

72Section 16 of the Act requires the engineer to make provision in the report for the removal and disposal of material taken from the drainage works. Again, this has application whether the project is initiated by petition or by request for improvement.

73Section 17 of the Act requires that the engineer’s report provide for road crossings regardless of whether the report is prepared in response to a petition or a request for improvement under section 78. In the same vein section 18 of the Act deals with bridges, culverts and pumping stations.

74Section 19 deals with recommendations in an engineer’s report for “the abandonment of all or part of a drain that are no longer useful or is being supplanted by new drainage works proposed in the engineer’s report”. There is mention of “new drainage works”, which may imply a petition drain, however, there is a disjunctive “or” that separates the no-longer-useful branch from the “supplanted-by-new-drainage-works” branch of section 19. There is otherwise no reference in section 19 to or a distinction between a section 4 petition or to a section 78 improvement request.

75Section 20, the last section of the Act under the “Engineer’s Report” title, deals with the continuation of drainage works beyond the limits of the initiating municipality to reach a sufficient outlet. There is no argument about whether this provision should apply to engineer’s reports prepared in response to a petition as well as to engineer’s reports in response to a section 78 request for improvement.

76So, when every other section of the Act under the “Engineer’s Report” title applies to engineer’s reports prepared in response to a petition as well as to engineer’s reports in response to a section 78 request for improvement, I have great difficulty understanding why section 19 should be limited in its application to engineer’s reports for petition drains.

77The language of Section 19 of the Act envisages two situations; one is when any drain or part thereof “is no longer useful” and the other is when it “is being supplanted by a new drainage works”. There is a disjunctive “or” separating the two situations. In my view the “no-longer-useful” test will more frequently have application in the context of an engineer’s report prepared under section 78, whereas the “supplanted-by-new-drainage-works” test will more often come until play where the engineer’s report is for a petition drain.

78Either way, section 19 of the Act applies to both situations according to the circumstances and, once adopted by by-law, the drainage works infrastructure proposed by the engineer’s report are to be implemented, constructed and installed. To the extent that the engineer’s report recommended the abandonment of all or a portion of pre-existing drainage works infrastructure “that is no longer useful or that is being supplanted by a new drainage works”, the abandonment is an integral part of the proposal and takes effect when the proposed drainage project is implemented.

79If it were the case that section 84 of the Act is the only avenue to abandonment of a municipal drain under the Act in connection with an improvement under section 78, then, procedurally, when an engineer’s report, pursuant to section 19 of the Act, recommends abandonment of all or a part of an existing drain, either a parallel, duplicated processes would need to be undertaken under section 78 and section 84, including appeals under section 48, or, alternatively, after the engineer’s report has passed through all of the processes and appeals and has been finally adopted, the municipality would then embark upon second process under section 84 of the Act to formally abandon the municipal drain as recommended.

80Section 84 of the Act provides mechanics by which the community around a municipal drain can seek the abandonment of the whole or any part of drainage works. The mechanics are akin to but the reverse of a petition to establish a municipal drain. Abandonment requires a 75% majority of those benefiting from the drainage works to start the process. The municipality may also initiate an abandonment process. Regardless of how it is starts, there are requirements for giving notice to those affected and the right to requisition an engineer’s report coupled with appeal rights which are the same with necessary modifications as on a report for the construction of drainage works. This is set out in subsection 84(4) of the Act and includes an appeal to the Tribunal under section 48 of the Act.

81A parallel process under the two sections of the Act would be cumbersome and confusing for those involved. The alternative, sequential approach would require that when an engineer’s report has passed through all of the processes and appeals and has been finally adopted, the municipality would then embark upon a second process under section 84 of the Act to formally abandon the part of the pre-existing municipal drain as recommended. That would, of course, entail the possibility of another engineer’s report as contemplated by subsection 84(1), and another round of appeals to the Tribunal by virtue of subsection 84(4) of the Act.

82Such a convoluted and tortuous process of multiple appeals, with the attendant risk of conflicting Tribunal decisions, is at odds with the intent of the Act to provide relatively informal, simplified and efficient procedures to deliver drainage works where requested and needed.

83The evidence which I have heard from the expert engineering witnesses is that, in practise, a second process through section 84 is never undertaken.

84Mr. Courey made submissions that distinguished between the abandonment of a “drain” contemplated by section 19 and the abandonment of “drainage works” as referred to in section 84 of the Act. “Drain” is undefined in the Act; “drainage works” is defined as “including a drain …”. He argues that the reference to a “drain” in paragraph 19 refers to the component parts of “drainage works” infrastructure, whereas section 84 applies to the “drainage works” as a whole. While this distinction may be helpful in other contexts, when section 84 speaks of “the abandonment of the whole or any part of the drainage works”, the distinction between the whole of the drainage works and its several “drain” parts becomes less useful.

85For the reasons I have given, to the extent that the Kilberg v. Wallace (Township) case says by way of obiter dicta or implies that section 19 of the Act only applies to a petition drain, with respect, I disagree. Section 19 applies to a report prepared under section 78 as well as to a report prepared in response to a section 4 petition.

86. To bring this back to the case before me, the 2018 Engineer’s Report proposes the physical destruction and formal abandonment of the Existing Drain once the Proposed New Drain has been completed and commissioned. The 2018 Engineer’s Report is the result of a process initiated under section 78 of the Act. There is no need for an additional abandonment process for the Existing Drain section 84 of the Act. This does not compromise the legal efficacy of the 2018 Engineer’s Report as it relates to abandonment of the Existing Drain; in that respect it is authorized by the combined operation of sections 19 and 78 of the Act.

What Qualifies as a Section 78 Project?

87I now turn to the question of what section 78 of the Act means and what it authorizes as interpreted by Kilberg v. Wallace (Township).

88At the risk of getting ahead of myself, my reading of the Kilberg v Wallace (Township) decision is that the Referee’s decision, that is his ratio decidendi, is that he did not think section 78 authorized increasing the capacity of existing drainage works infrastructure beyond what is incidental to something specifically authorized by subsection 78(1.1). In these reasons I will sometimes refer to this part of the Kilberg v Wallace (Township) decision as the “Capacity Issue” or the “No-Increase-In-Capacity” part of the decision.

89This interpretation of Referee Turville’s decision was not contested by the expert engineering witnesses nor by counsel for the Municipality, in his submissions; they all submitted that this part of the Kilberg v Wallace (Township) decision was wrong and should not be followed; more will be said about these submissions below.

90Here is an extract of what Referee Turville said in his Kilberg v Wallace (Township) decision:

In my view the engineers intended their design to be a new drainage works without any use of the existing scheme. The Act defines improvement:

Sec 1. “improvement” means any modification of or addition to a drainage works intended to increase the effectiveness of the system.

I do not view the work described in the 1985 report as an improvement to an existing system but as a new work not authorized by sec. 78. An improvement must be an improvement to an existing scheme and not as this report envisages. Neither do I see anything in the language of Sec. 78 that would permit an entirely new design to be constructed regardless of any similarities in the watersheds. Consequently, this new drainage work cannot be an improvement of the Mayberry Drain 1952 as contemplated by Sec. 78 (see Tilbury East vs, Romney (1895), 1C.& S. 261). Accordingly, the engineer as well does not have the authority to abandon an existing scheme under Sec. 78 and at the same time take the position that this work is not new work, a prerequisite of Sec. 19.

91The definition of “improvement” at the time is identical to the definition today.

92. At the time, subsection 78(1) was as follows:

78(1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report. R.S.O. 1990, c. D.17, s. 78 (1).

93Subsection 78(1) as quoted above is the same as it appeared in The Drainage Act, 1975, S.O. 1975, c. 79.

94The current subsection 78(1), which speaks of “projects listed in subsection (1.1)”, together with the list in subsection 78(1.1), (both quoted in paragraph 98 below) were introduced in 2010 statutory amendments two decades after the 1988 Kilberg v Wallace (Township) decision.

95I have highlighted in bold the language in subsection 78(1) of the Act as it was at the time of the Kilberg v Wallace (Township) (see paragraph 92 of these reasons) because those words are comparable to the language of clause 78(1.1) 5. of the Act as it is today. The word “improvement”, identically defined now as then, does not appear in section 78 now or then. The verb: “improve” appears in section 78 now and then and I take it to have the same meaning as the noun “improvement”; that is, to improve a drainage works is to undertake an improvement of the drainage works.

96When referring to section 78 of the Act, subsection 78(1.1) needs to be particularly taken into account because it defines the projects which may be undertaken as an “improvement”. As mentioned, subsection 78(1.1) was introduced in 2010, well after the Kilberg v Wallace (Township) decision in 1988 and well before the matters before the court in this application.

97In his evidence Mr. Vander Veen gave it as his opinion that subsection 78(1.1) of the Act was introduced in 2010 to assist with the readability of the awkward run-on sentence which subsection 78(1) was before the change. He said that there was no change in the substance of section 78 resulting from this 2010 change. The run-on sentence version of section 78 appears in paragraph 92 of these reasons.

98. Section 78 now provides as follows:

78(1) If a drainage works has been constructed under a by-law passed under this Act or any predecessor of this Act, and the council of the municipality that is responsible for maintaining and repairing the drainage works considers it appropriate to undertake one or more of the projects listed in subsection (1.1) for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by section 4.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 78 (1) of the Act is amended by striking out “projects listed in subsection (1.1)” and substituting “major improvement projects listed in subsection (1.1)”. (See: 2020, c. 18, Sched. 4, s. 9 (1))

(1.1) The projects referred to in subsection (1) are:

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 78 (1.1) of the Act is amended by striking out “projects” in the portion before paragraph 1 and substituting “major improvement projects”. (See: 2020, c. 18, Sched. 4, s. 9 (2))

1. Changing the course of the drainage works.

2. Making a new outlet for the whole or any part of the drainage works.

3. Constructing a tile drain under the bed of the whole or any part of the drainage works.

4. Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.

5. Otherwise improving, extending to an outlet or altering the drainage works.

Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 5 of subsection 78 (1.1) of the Act is repealed and the following substituted: (See: 2020, c. 18, Sched. 4, s. 9 (3))

5. Extending the drainage works to an outlet.

5.1 Improving or altering the drainage works if the drainage works is located on more than one property.

6. Covering all or part of the drainage works.

7. Consolidating two or more drainage works.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 78 (1.1) of the Act is amended by adding the following paragraph: (See: 2020, c. 18, Sched. 4, s. 9 (4))

8. Any other activity to improve the drainage works, other than an activity prescribed by the Minister as a minor improvement.

(2) An engineer shall not be appointed under subsection (1) until thirty days after a notice advising of the proposed drainage works has been sent to the secretary-treasurer of each conservation authority that has jurisdiction over any of the lands that would be affected.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 78 (2) of the Act is repealed and the following substituted: (See: 2020, c. 18, Sched. 4, s. 9 (5))

Notice

(2) An engineer shall not be appointed under subsection (1) until 30 days after a notice has been sent to the following persons advising them of the municipality’s intent to undertake the major improvement project:

1. The secretary-treasurer of each conservation authority that has jurisdiction over any lands that would be affected by the project.

2. The prescribed persons. 2020, c. 18, Sched. 4, s. 9 (5).

(3) The engineer has all the powers and shall perform all the duties of an engineer appointed with respect to the construction of a drainage works under this Act.

(4) All proceedings, including appeals, under this section shall be the same as on a report for the construction of a drainage works.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 78 of the Act is amended by adding the following subsection: (See: 2020, c. 18, Sched. 4, s. 9 (6))

Minor improvements to drainage works

(5) Despite subsections (2) to (4), the Minister may prescribe the process for approving minor improvements to a drainage works mentioned in paragraph 8 of subsection (1.1). 2020, c. 18, Sched. 4, s. 9 (6).

99I have noted the changes to the Drainage Act which have been introduced by Section 9 of Schedule 4 of Statutes of Ontario 2020 chapter 18, entitled: COVID-19 Economic Recovery Act, 2020. Though enacted and given royal ascent on July 21, 2020, those provisions relating to the Drainage Act have not yet been proclaimed in force.

100It is useful to repeat here the definition of “improvement” as found in the definition section 1 of the Act:

“improvement” means any modification of or addition to a drainage works intended to increase the effectiveness of the system;

101As previously noted, this is the same definition that was in the Drainage Act at the time of the Kilberg v. Wallace (Township) decision. The 2020 amendments to the Act do not change the definition of “improvement” nor add definitions of “major improvement projects” nor of “minor improvements”, though perhaps a definition of “minor improvements” may appear in regulations when they are available.

102It is noted that, in the subsection 78(1.1) definition of the authorized projects refers to “the drainage works” and in subsection 78(1) the drainage works are “a drainage works that has been constructed under a by-law passed under this Act or any predecessor of this Act”. In this case “the drainage works” infrastructure is the Existing Drain as described in the 1970 Engineer’s Report.

103The respondent Municipality says that increasing the “effectiveness” (to use the language of the definition of “improvement”) of the existing drainage works authorizes, under section 78, materially increasing the capacity of existing drainage works. Referee Turville had the same definition of “improvement” before him when he issued his decision in the Kilberg v. Wallace (Township) decision. He also noted submissions by counsel for the respondent Township of Wallace that there is “no limit on capacity or extent of improvement authorized by Sec. 78”. He disagreed; he did not think section 78 authorized materially increasing the capacity of existing drainage works. beyond what is incidental to the specifically authorized projects.

104With that No-Increase-In-Capacity paradigm in mind, I will review the listed heads of improvement found in subsection 78(1.1).

105Before doing so, however, let me comment upon what “the drainage works” are in this case. Here is where I believe it is helpful to take into account Mr. Courey’s distinction between a “drain” (undefined in the Act) and the defined term, “drainage works”. A “drainage works” is an amalgam of and the sum of its parts. In these reasons I have sometimes referred to the parts as drainage works infrastructure.

106In the case of the Filsinger Drain, the component parts of the Existing Drain are mostly “drains”, including field tile and culverts under roads. Even if all of those component parts of the drainage works are altered or replaced, as contemplated by one or more of the projects listed in subsection 78(1.1) of the Act, the resulting infrastructure remains part of the same drainage works so long as the capacity of the resulting drainage works does not exceed what is permitted under the No-Increase-In-Capacity part of the Kilberg v. Wallace (Township) decision, otherwise the resulting drainage works become a new drainage works which is not authorized by section 78 of the Act.

107If it were not for the Capacity Issue part of the Kilberg v. Wallace (Township) decision, the component parts of the Proposed New Drain, which are mostly “drains”, including field tile, HDPE storm sewer pipes, pipes under roads and a drainage ditch outlet, would become a new version of the Filsinger Drain drainage works after the Existing Drain component parts have been replaced as proposed by the 2018 Engineer’s Report. The Filsinger Drain drainage works can be said to continue even if the Existing Drain infrastructure is replaced by the Proposed New Drain infrastructure.

108This does not help because the capacity of the replacement drainage works infrastructure is materially greater than that of the existing drainage works infrastructure that runs afoul of the No-Increase-In-Capacity paradigm of the Kilberg v Wallace (Township) decision So, let me review the listed heads of improvement found in subsection 78(1.1) of the Act with that paradigm in mind.

109Item 1. of subsection 78(1.1) speaks of changing the course of the drainage works. This has to do with location not capacity of the drainage works. It could entail an incidental, consequent increase in the capacity for the original drainage works.

110Item 2. of subsection 78(1.1) deals with outlet for the drainage works. Again, this does not authorize a change in the design or capacity of the existing drainage works.

111Item 3. of subsection 78(1.1) authorizes the construction of a field tile under the drainage works. This will authorize an incidental, consequential increase in the capacity for the original drainage works, but the original drainage works remains in place as originally designed and constructed. The purpose of an underdrain is not primarily to increase capacity.

112Item 4. of subsection 78(1.1) authorizes various types of protective measures for the drainage works; it does not authorize widening or deepening the original drainage works, as section 77 does specifically in the context of what can be done when it costs no more than $4,500.00. These authorized protective measures may involve an incidental, consequent increase in the capacity for the original drainage works.

113Item 5. of subsection 78(1.1) deals broadly with improving, extending to an outlet and altering the drainage works. If improving does not include increasing capacity by definition, then altering might be stretched to authorize some changes in design that incidentally increases capacity. In the context of the rest of subsection 78(1.1), in my view, the flexibility which may be implicit in item 5. is modest. I also note that the 2020 amendments (not yet proclaimed in force) separate into separate clauses extending to an outlet in clause 5. from improving or altering existing drainage works in clause 5.1. and limits the application of clause 5.1. to drainage works located on more than one property.

114Item 6. of subsection 78(1.1) permits an open drain to be put into a pipe or tile. By necessary implication this could involve substantial changes in the capacity of the drainage works. When this clause 6 is read with section 14 of the Act, this improvement might will lead to a significant incidental, consequential increase in capacity were section 14 of the Act to apply, which it does not in this case.

115Item 7. of subsection 78(1.1) contemplates the consolidation of two or more drainage works. This could involve consolidating into a single engineer’s report two connected or related drainage works projects and perhaps combining the physical drains into one if that is warranted. Again, there is no authorization to increase the capacity of either or both of the drainage works to accommodate materially greater flows.

116There is no reference in subsection 78(1.1) to increasing materially the size and capacity of “the drainage works” to align with current engineering standards or otherwise. There are a few items in subsection 78(1.1) which authorize improvements which would necessitate changing the design or design parameters of “the drainage works” but, in my view, given the No-Increase-In-Capacity paradigm from the Kilberg v Wallace (Township) decision, design changes are limited to the improvements which are specifically authorized and may only include incidental increments in capacity.

117In my view this is consistent with the Capacity Issue determination of Referee Turville in the Kilberg v Wallace (Township) case. In essence he said that, when it comes to an improvement under section 78, you take the drainage works as you find it. If standards of the existing drainage works are so outdated or the circumstances in the watershed have changed such that redesign and materially increased capacity is dictated by current engineering standards, then, under the No-Increase-In-Capacity paradigm from the Kilberg v Wallace (Township) decision, it becomes a new drainage works which is not authorized by section 78 of the Act.

118Referee Turville was concerned about the local drainage community losing input and control which is available through the petition process. He says:

Section 78 or its predecessors was never intended to authorize as (sic) initiating municipality to improve an existing municipal drain as designed in this report. The extend and ramifications are beyond that which the legislation could have intended when it was first implemented over 100 years ago. I do not subscribe to the view, that could otherwise prevail, that a municipality may do an improvement as proposed here and impose their will upon an unsuspecting public who is required to pay for it, without recourse. Many municipalities re guided by their engineers and it must not be seen that this section is self-serving. It is interesting to note that the first resolution of the Respondent dated September 10, 1981, was merely a request to vary the assessment under section 76. Further, by resolution dated March 7, 1983, the Respondent had again instructed the engineer to prepare a preliminary report under Sec. 10 of the statute. Council appears to have proceeded under this section believing there to be a Sec. 4 petition or gave little thought to the matter. In any event, the engineer should assist Council with the knowledge he possesses, or as I indicated earlier, seek directions from the Referee (Sec. 106(4)).

To allow this report to stand as being authorized under sec. 78 could unleash a flood of new drainage works under the pretext of an improvement to an existing drain. An owner assessed for benefit in need of improvement could in the final result under Sec. 78, trigger a totally new design and course as an improvement to existing scheme, and all other owners assessed for benefit would have no recourse. This cannot be permitted.

119I interject here to reflect upon Mr. Courey’s submission that Referee Turville was wrong about no recourse for other assessed owners His submission is that the effect of subsection 78(4) of the Act is to give all rights of appeal that would be available on a petition to those affected by a report prepared under section 78. All those affected by a section 78 report have the same recourse as those affected by a report prepared in response to a section 4 petition and Referee Turville was wrong to think otherwise. More will be said of Mr. Courey’s submissions below.

120. If there is a petition, a significant number of those in the area requiring drainage need to agree by signing a petition. Section 4 of the Act provides the specifics of how to calculate the number of petitioners required to support the validity of a petition. The Act also provides that, once the petitioners see the engineer’s report, they have the opportunity to withdraw from the petition if they don’t like the proposed project or the cost estimates. Signing a petition also exposes the petitioner to paying the cost of the process if the project does not proceed so there is some financial responsibility imposed.

121. There are other checks and balances in the petition process which are not present under section 78. Under section 78 a single owner can initiate the process without the knowledge of or over the objection of others using the drain. The person initiating the section 78 process normally has no responsibility for the costs if the project does not proceed. There is no opportunity to withdraw the initiating request or of the neighbours stopping the process when the project and its costs are understood at the time when the engineer’s report is presented to Council.

122These differences mentioned in paragraphs 120 and 121 above are noteworthy differences between a section 4 petition process and the process for improvement under section 78 of the Act but they do not go to the concern expressed by Referee Turville that assessed owners have “no recourse” under section 78 of the Act. Subsection 78(4) of the Act provides such recourse.

123In this case, the Existing Drain and the Proposed New Drain have similar drainage areas. The Proposed New Drain follows substantially the same alignment as the Existing Drain except for the deviation around the Forman property was requested by that property owner to facilitate possible future development. The difference is largely in significantly increased capacity of the Proposed New Drain. The design of the Existing Drain is based on 7.2 mm of rainfall in 24 hours. The Proposed New Drain is based on 25 mm of rainfall in 24 hours in the agricultural areas to the south until the drain reaches the Urban Boundary of Mildmay where it steps up to an urban design standard for storm water management in urban areas, being the peak flow from a two-year rainfall event; based on pipe size this is a third more capacity than for the rural part of the drainage works. The type of pipe used also changes to reflect the urban setting, as compared to the rural parts of the drainage works.

124In all, this is very similar to the situation with the Mayberry Drain in the Kilberg v Wallace (Township) case. To paraphrase from that decision, the Proposed New Drain is basically a new drain precipitated by the many changes in present-day conditions. It is no longer an agricultural drain, but is, in essence, a storm sewer system in Mildmay having increased capacity many times greater than the original concept constructed in 1970.

125The evidence which I have heard from the expert engineering witnesses would suggest that this No-Increase-In-Capacity part of Referee Turville’s decision in Kilberg v Wallace (Township) has been ignored in practise.

126I will digress briefly to observe that, in the Kilberg v. Wallace (Township) decision, Referee Turville determined that municipal drainage works cannot be extended upstream under the Act without a petition under section 4. By and large, that part of his decision has been respected and is not in question in this case.

127Returning to the practise under section 78, routinely when a request is made for the improvement of a drainage works under section 78, the drainage engineers take it as their mandate to ensure that the drainage works are brought up to current engineering standards having regard for current circumstances in the watershed of the drainage works. Those standards have evolved over the years and, in doing so, have become more rigorous. When it comes to the improvement of an older municipal drain, inevitably the engineers remake it to satisfy their profession’s current engineering standards and to reflect then current circumstances around the drainage works.

128In this case that evolution and the changed circumstances have led to the 2018 Engineer’s Report which estimates the project cost to be $508,000.

129According to the expert engineering evidence, this approach is consistent with the current engineering practise in the Province.

130So, my dilemma is: do I ignore and effectively over-rule Referee Turville’s decision in the Kilberg v. Wallace (Township) as it relates to the Capacity Issue.

131Ms. M’Garry for the applicants submitted that I should follow the Kilberg v Wallace (Township) decision. She submits that it represents the state of the law since 1988. If the legislature had felt the need to change that law, they could have done so but did not in either the 2010 or in the 2020 legislative amendments to section 78. It is important, she submits, for there to be consistency in decisions in order that those operating in the drainage sphere in Ontario will be able to govern themselves and their affairs to reflect the state of the law.

132Mr. Courey made extensive submissions in support of ignoring Referee Turville’s decision in the Kilberg v. Wallace (Township) as it relates to the Capacity Issue and urged me to hold that the 2018 Engineer’s Report is authorized by section 78 of the Act notwithstanding the No-Increase-In-Capacity paradigm of the Kilberg v Wallace (Township) decision.

133Mr. Courey started by reminding me that, even though we style ourselves as the Court of the Drainage Referee and are given the courtesies of a superior court judge in the courthouses where we sit when there is not a pandemic, we are in fact an administrative tribunal exercising a statutory power of decision under the aegis of the Statutory Powers Procedure Act.

134He then references a Supreme Court of Canada decision is Weber v. Ontario Hydro, [1995] 2. S.C.R. 929 (S.C.C.) and the following quote from Mr. Justice Iacobucci:

Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the arbitrator is not bound to follow the decisions of other arbitrators, even when similar circumstances arise.

135His submission is that, sitting as I am as an administrative tribunal, I am not bound to follow Kilberg v Wallace (Township) under the judicial doctrine of stare decisis.

136Mr. Courey then referred to two Referee decisions which were introduced by Mr. Vander Veen. He was the last witness. It is unfortunate that these decisions were not circulated in advance of the hearing in accordance with the Procedural Order issued in November 2020 given that everyone involved was operating remotely via video conference during the pandemic. The cases were transmitted electronically during Mr. Vander Veen’s testimony, and he was recalled the next morning to answer questions about the cases before final submissions commenced.

137The first of those Referee decisions is a case called Campbell v Zorra Township, 1991 ONDR 1. This is a decision of Referee Johnston. The case involved a report prepared under section 78 of the Act. The point of contention is that the engineer’s report proposed to replace the outlet grassed waterway with a tile. The engineer recommended the tile, and the appellant wanted to retain the grassed waterway. The tile simply carried the same water to the same destination more quickly. Mr. Courey says that this implies greater capacity. I am not convinced that accelerating the speed of travel of the same amount of water qualifies as increased capacity but, if it can be said to be, it is incidental to the specifically authorized improvement of “covering all or a part of the drainage works”, to quote clause 6 of subsection 78(1.1), and is consistent with the Kilberg v. Wallace (Township) decision related to the Capacity Issue. It is incidental to the improvement.

138Referee Johnston in his decision refers to that part of the Kilberg v. Wallace (Township) decision that relates to the Referee’s jurisdiction under section 47 of the Act and the Tribunal’s jurisdiction under section 48 of the Act. Mr. Courey asks me to take from this that Referee Johnston was aware of the Kilberg v. Wallace (Township) decision and nonetheless endorsed an engineer’s report which authorized an increase in capacity. On that basis Mr. Courey submits that there are conflicting decisions between the two former referees. For reasons indicated, I am not convinced.

139The second decision introduced by Mr. Vander Veen is a case decided by Referee O’Brien in a case called MacSweyne et al v. Lochiel (Township), 1998 ONDR 8. In his decision Referee O’Brien makes not reference to the Kilberg v. Wallace (Township) decision. Mr. Vander Veen gave evidence before Referee O’Brien in that case and in his evidence before me in this case he did not say that the Kilberg v. Wallace (Township) decision was brought to the attention of Referee O’Brien at the time the MacSweyne et al v. Lochiel (Township) case was argued.

140The gist of the MacSweyne et al v. Lochiel (Township) case is that a drain that was constructed in 1975 was badly installed. An engineer was appointed on the direction of the Referee to recommend solutions. The engineer did so by report issued August 13, 1998.

141The 1975 drain was designed to a drainage co-efficient of 9.0 mm of rain in 24 hours; the remedial report recommendations proposed Option A with a drainage co-efficient of 25 mm and offered an Option B with a drainage co-efficient of 38 mm. In the 1998 report the engineer recommended Option B. Referee O’Brien endorsed Option B.

142The drainage works in the MacSweyne et al v. Lochiel (Township) case was an agricultural drain that did not flow into a settlement area and become akin to an urban storm sewer.

143Mr. Courey says that the increase in capacity authorized in the MacSweyne et al v. Lochiel (Township) case is like what we have in this case about the Filsinger Drain. He argues that there are now three conflicting decisions between three former Referees.

144I asked Mr. Vander Veen if he was aware of any decisions that specifically referred to the Capacity Issue aspect of Referee Turville’s decision in Kilberg v. Wallace (Township) which specifically decided against Referee Turville’s notion that section 78 did not authorize any change in capacity otherwise than incidentally to one or more of the specifically authorized improvements enumerated in subsection 78(1.1). Mr. Vander Veen said that he was not aware of any such case.

145Mr. Courey then reviewed a number of decisions concerning the doctrine of stare decisis as it applies in the courts. He referred me to the case of Minister of Indian Affairs v. Ranville et al 1982 CanLII 202 (SCC), [1982] 2 S.C.R. 518 in which Justice Dickson, for the majority for the Court, said:

The traditional justification for the stare decisis principle is certainty in the law. This of course remains an important consideration even though this Court has announced its willingness, for compelling reasons, to overturn a prior decision.

146Mr. Courey also referenced the supplementary reasons given by Justice Richie for himself and Justice Beetz in which he agreed with Justice Dickson’s views about stare decisis but added:

I do not doubt the power of this Court to depart from a previous judgement of its own but, where the earlier decision has not been made per incuriam, and especially in cases in which Parliament or the Legislature is free to alter the law on the point decided, I think that such a departure should be made only for compelling reasons.

147Mr. Courey argues that if, notwithstanding the judicially binding principle of stare decisis, the Supreme Court of Canada can depart from a previous decision for compelling reasons, so too can I.

148To assist with what may constitute “compelling reasons” Mr. Courey referred me to a case called R. v. Chan, 2019 ONSC 783. This is a criminal case the facts of which do not relate to the case before me. That said, what makes the case relevant is that Mr. Justice Boswell, who rendered the R. v. Chan decision, had previously made a decision about the constitutionality of a provision of the Criminal Code subsequently to which a different Justice of the same court in a different case made a different decision about the constitutionality of the same section of the Criminal Code. Justice Boswell was being asked to re-open his earlier decision in light of the subsequent different decision. That led to a discussion of the principle of stare decisis and comity between judges of the same level of court.

149At paragraphs 39 and 40 of his decision Justice Boswell says:

The horizontal convention provides that, while not strictly binding, relevant decisions of the same level of court should be followed as a matter of judicial comity, unless there are compelling reasons that justify departing from the earlier ruling.

In Re Hansard Spruce Mills [1954] 13 W.W.W (NS) 285 (B.C.S.C.) Wilson J. defined “compelling reasons” as follows:

(a) Where subsequent decisions have affected the validity of the early decision;

(b) Where it is demonstrated that some binding precedent or relevant statute was overlooked; or

(c) Where the judgement was not considered.

150Justice Boswell went on to reference Appeal Justice Laskin in a case called David Polowin Real Estate Ltd. V. The Dominion of Canada General Insurance Co., (2005) 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161. At paragraph 43 Justice Boswell says:

Justice Laskin went on to note that “most modern judges disavow both a rigid adherence to precedent and an unrestrained right to depart from their court’s previous authority”. He suggested the following approach:

Instead of focusing on phrases such as “manifestly wrong”, the approach I prefer is that adopted by this court in R. v. White (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A), at p. 602 O.R. It calls on the court to weigh the advantages and disadvantages of correcting the error in the previous decision. The approach focuses on the nature of the error, and the effect and future impact of either correcting or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.

151Mr. Courey submitted that, while these cases relate to the stare decisis principle in the context of the judiciary, I should be guided by similar principles when deciding how to exercise my discretion as an administrative tribunal as to whether to follow Referee Turville’s decision on Kilberg v. Wallace (Township).

152He then made the following submissions as to why Referee Turville’s decision in Kilberg v. Wallace (Township) was wrong as it relates to the Capacity Issue.

153He says Referee Turville was wrong for not having regard for the reference to “increase the effectiveness of the system” in the definition of “improvement” as it was then and is now.

“improvement” means any modification of or addition to a drainage works intended to increase the effectiveness of the system”

154He submitted that the plain and ordinary meaning of increasing effectiveness necessarily implies increasing capacity of the drainage works if that is warranted by the circumstances, including current professional engineering standards. Both expert engineering witness subscribed to this interpretation.

155Mr. Courey submits that Referee Turville was wrong when he lamented that owners would have no recourse with respect to a report prepared under section 78. Referee Turville said:

To allow this report to stand as being authorized under Sec. 78 could unleash a flood of new drainage works under the pretext of an improvement to an existing drain. An owner assessed for benefit in need of improvement could in the final result under Sec. 78 trigger a totally new design and course as an improvement to existing scheme, and all other owners assessed for benefit would have not recourse. This cannot be permitted.

156Mr. Courey submits that Referee Turville ignored or forgot the effect of subsection 78(4) of the Act which gives all rights of appeal that would be available on a petition to those affected by a report prepared under section 78. All those affected by a section 78 report have the same recourse a those affected by a report prepared in response to a section 4 petition and Referee Turville was wrong to think otherwise.

157Mr. Courey relied upon the evidence of the two engineering expert witnesses that, for the three decades since the Kilberg v. Wallace (Township) decision, the part of it relating to the Capacity Issue has been ignored by the engineering profession. It is an “outlier”.

158In that same vein Mr. Vander Veen was asked about why, if Kilberg v. Wallace (Township) was thought to be wrong, it has not been addressed by the legislature with the 2010 or the 2020 amendments to the Act. His response was that, because the decision has been ignored, it was not thought to be an issue requiring the attention of the Legislature.

159Both engineers expressed alarm about the potential conflict with their professional obligations to satisfy current professional engineering standards if, in law, they are constrained by section 78 to work to out-of-date design standards and criteria. Mr. Vander Veen indicated that it was unlikely the Provincial subsidy support for agricultural drainage projects would be available for drainage works which did not satisfy current engineering standards.

160If I follow the Kilberg v. Wallace (Township) decision as it relates to the Capacity Issue, it will give rise to the need to consider a further legislative amendment to subsection 78 and/or the definition of “improvement” or, alternatively, at least in the interim, there will be a very challenging sea-change in the engineering practise in Ontario when it comes to the handling of section 78 requests for improvement.

161If I do not, it will be business as usual.

162I am mindful of what Laskin J.A. said above; it bears repeating:

It calls on the court to weigh the advantages and disadvantages of correcting the error in the previous decision. The approach focuses on the nature of the error, and the effect and future impact of either correcting or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.

163The advantages of continuing with business as usual are great because there will be no disruption in the drainage engineers’ practise in the Province and no need to consider legislation. The disadvantage of reversing the No-Increase-In-Capacity paradigm derived from the Kilberg v Wallace (Township) decision is that there are a few who are aware of it and who have relied upon it. The applicants in this case are amongst the few. For the sake of the few in the future, there is considerable advantage to saying clearly that Referee Turville was wrong about restricting capacity increases under section 78 of the Act.

164With great respect to Referee Turville, I am satisfied that he was wrong in not taking into account that increasing the effectiveness of a drainage works as contemplated in the definition of “improvement” implies increasing capacity when warranted by current engineering standards and the circumstances of and around drainage works. I am satisfied that he did not have regard for the full suite of appeal rights available under section 78 which are comparable to those available for a section 4 petition when he expressed concern about assessed owners not having recourse under section 78. To the extent that Referee Turville’s ratio decidendi is influenced by his obiter dicta about section 19 of the Act applying only in the case of a petition drain, again, in my view, he is incorrect for the reasons indicated from paragraphs 60 to 86 above in these reasons.

165Having regard for the comments of Laskin J.A. about weighing the advantages and disadvantages of correcting the error in the previous decision, and the effect and future impact of either correcting or maintaining it and considering the effect and impact on the parties and future litigants as well as the integrity and administration of our Drainage Act system, I am satisfied that I should not follow the No-Increase-In-Capacity principle and paradigm derived from the Kilberg v Wallace (Township) decision. That part of the decision is at odds with good professional engineering practise in Ontario, it is inconsistent with the Provincial funding regime for agricultural drainage under the Drainage Act and it is something which has been ignored as an aberration by the engineering profession since the decision was rendered in 1988. It does not represent the current state of the law under the Drainage Act.

166On that basis, I am satisfied that section 78 of the Act authorizes that which is proposed by the 2018 Engineer’s Report, including the abandonment, pursuant to section 19, of those parts of the Filsinger Drain drainage works infrastructure which will be no longer useful or that will be supplanted by new, replacement drainage works infrastructure.

Section 11 of the Act

167I wish to add a few words about the obligations and authority of an engineer appointed under the Act. In summary section 11 of the Act sets out the obligations of the engineer to be fair and impartial and to bring best judgement to the work.

168In this case the applicants complained that the appointed engineer deviated from the improvements specifically listed by Mr. Spence in his 2014 section 78 request. The applicants supplemented that by criticizing the engineer for not adhering to Council resolutions about what should be done under section 78.

169Not a lot of time was spent on this issue during the hearing because it is clear that neither the Council appointing the engineer nor the person requesting the section 78 improvement nor any of the stakeholders in connection with the drain have the authority to instruct the engineer how his report is to be done. The engineer has an obligation to seek out all who have an interest and to take into account all information, comments and suggestions provided. The engineer is then required by section 11 of the Act to bring independent, quasi-judicial, professional skill, knowledge and judgement to the project and to write his report accordingly.

170On the evidence, the engineer did that in this case.

Section 118 of the Act

171The November 2020 Procedural Order for the Hearing identified a number of issues to be addressed, one of which was:

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?

172There was no evidence of any impropriety that would justify my making an order pursuant to subsection 118(2) of the Act.

173Pursuant to subsection 118(1) I order that the expenses of the respondent Municipality arising from this proceeding shall be levied upon the lands assessed for the construction of the Filsinger Drain as set out in the 2018 Engineer’s Report, as modified by the Tribunal Decision, and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for construction under the Act. For this purpose, the expenses of the respondent Municipality shall include any costs payable by the respondent Municipality and shall be net after deducting any costs payable to the respondent Municipality.

Final Disposition

174The application is dismissed.

Costs

175As to costs, if the parties are unable to agree, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.