ONTARIO SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
CITATION: Chrustie v Ottawa (City), 2023 ONDR 2
DATE OF DECISION: 2023-03-22
Court File No.: CV-20-83031 (Ottawa)
BETWEEN:
BRUCE DAVID CHRUSTIE
Plaintiff/Appellant
-and-
CITY OF OTTAWA
Defendant/Respondent
-and-
RIDEAU VALLEY CONSERVATION AUTHORITY, MICHAEL WESTLEY, BARBARA WESTLEY, TOMLINSON DEVELOPMENT CORPORATION, WILLIAM TOMLINSON IN TRUST, 5010697 ONTARIO INC. o/a R.W. TOMLINSON LTD., LLOYD MARC CHARTRAND, CHARLENE ANN CHARTRAND, WILLIAM KINKADE, JULIE KINKADE, JOHN CHARLES COMPTON, MARY LUCY ELIZABETH COMPTON, AuthorityGOPAL MOUDGIL, SUDERSHAN MOUDGIL, STEVEN SELTENREICH, ANITA BOLGER, VANGALDER CONSTRUCTION CO., RIDEAU VALLEY CONSERVATION FOUNDATION
Added Parties
DRAINAGE REFEREE ) HEARING HELD TUESDAY
ROBERT G. WATERS ) THE 21ST DAY OF FEBRUARY 2023
REASONS FOR DECISION
The Order dated February 28, 2023, emanates from a Hearing held on the 2lst day of February, 2023. In advance of that hearing, I forwarded to the parties to the Hearing a draft Order which was the topic of discussion on February 2lst, 2023. The Order that arose from the Hearing dealt with a number of issues which were discussed at the Hearing of February 21st, 2023.
Initially, I dealt with the original Appellant, Bruce David Chrustie, with regard to a proposal which he put before the Referee in the form of an email dated January 5, 2023, suggesting that changes to the Conservation Authorities Act necessitated the removal of the Rideau Valley Conservation Authority from this matter. Counsel for the Rideau Valley Conservation Authority, Charlotte Watson, pointed out that the matters in the current amendments to the Conservation Authorities Act did not deal with the matter before this Referee, and Mr. Chrustie took the position that, as regulations have not been promulgated and this may come to the fore at a later date, he would not proceed with a Motion to have the Rideau Valley Conservation Authority removed.
However, the Rideau Valley Conservation Foundation agreed to the proposal of the Referee that it bring a Motion, Factum , and Book of Authorities, as it relates to the dispute set out in the documentation of the Rideau Valley Conservation Foundation as to the jurisdiction of the Drainage Act, the Drainage Referee and the administrator of the Drain being the City of Ottawa. As I stated during the Hearing the position of the Rideau Valley Conservation Foundation was foundational to the balance of the proceedings if their assertions with regard to jurisdiction were valid.
It was further noted, however, by the Referee that the Rideau Valley Conservation Foundation also appealed the report of Robinson Consultants Inc. on the Hobbs Municipal Drain Outlet Extension dated June, 2021, and that position or appeal under Section 47 Drainage Act R.S.O.1990,c.D.17 is not part of these reasons and will proceed depending on whether the jurisdiction of the Referee is acknowledged.
During the course of the Hearing Bruce David Chrustie raised the issue that the proposal of Robinson Consultants Inc. needed revision for an alternate route than that contained in the report dated June 24, 2021, Project No. B17042. Mr. Chrustie maintained that he was agent for a number of parties and the Referee has requested that confirmation of those parties to this agency be provided and that a Motion be brought with regard to the alternate route on or before June 24, 2021.
There were a number of parties who have filed Witness Statements, and although unrepresented by Counsel were concerned with regard to issues of flooding. The Referee enquired as to whether the Statement of Claim proposed in the draft Order, now contained in Paragraph 5 of the Order of February 28th, 2023, relates to damages under Section 79 of the Drainage Act, or assessment for lack of outlet under Section 32 of the Drainage Act. It was the position of the Referee that the Statement of Claim for Damages would be of aide to Mr. Robinson in connection with his report if, as a result of the procedure before the Referee, the Drain did not proceed and there would be assessments for lack of sufficient outlet going forward. The Referee urged the parties to establish where their damages lie, either with Section 79 or Section 32.
An issue arose with regard parties, as there a number of unrepresented parties in this matter, to provide either a Statement of Claim, a Witness Statement or an Affidavit setting out their concerns. These were lacking for Marc Chartrand and Charlene Anne Chartrand and Van Galder Construction Company. The Chartrands did not attend at the Hearing and the Municipality is being charged with the duty of contacting them to see if they are continuing with this matter. Van Galder Construction Company did attend and will be dealing with provision of a Statement of Claim. Both of these matters are to be resolved by June 13, 2023.
Tomlinson Development Corporation, William Tomlinson in Trust, 5010697 Ontario Inc. o/a R.W. Tomlinson Limited will be required within 120 days of this Order, being June 28th, 2023, to submit a Claim of Damages, and indicate whether they were requesting an Environmental Assessment. They are further charged with satisfying the Referee that their proposal of an extension of the Drain pursuant to Section 78 is valid within the terms of this Appeal.
It should be noted that the Referee has expressed concerns that there have been no Drainage Engineers retained as experts with regard to the proposal of Robinson Consultants Inc. and the parties have been urged to retain the services of an expert witness such as a Drainage Engineer with regard to the concerns set out in the various provisions of the Order. In addition, as there are a large group of unrepresented parties in this matter, the Referee has urged the parties retain the services of counsel at least in helping drawing their Statement of Claims and the documentation involved in this matter. All parties should be aware of the Reasons for Decision of the Referee dated the 11th day of January, 2021, with regard to the original report of Robinson Consultants Inc. in which Mr. Robinson indicated that the Drain should not proceed because of an inability to receive consent in his mind to the extension of the drain through the wetland described as the Richmond Fen which led to his proposal under Section 40 of the Act that the Drain not proceed.
Finally, the Referee comments on the position of the Rideau Valley Conservation Authority through its representative Charlotte Watson in which she maintained that the Referee cannot order the Conservation Authority to approve the drain. At this point, there has been no decision by the Conservation Authority as to an Environmental Assessment and a Cost Benefit Statement which was authorized by a prior Order January 18, 2021, and, in addition, it is premature for the Rideau Valley Conservation Authority to take a position in advance of a Hearing and a final decision with regard to the route and any amended report of Robinson Consultants Inc.
The Referee notes, specifically, that there is more than one way of ensuring that there is no net loss of wetland and ensuring its integrity at the same time the Referee is cognizant of the concerns of most of the appellants in this matter, because of the lack of outlet, that they are subject to flooding which is the raison d'etre of the Conservation Authorities Act. As the matter proceeds hopefully the Drainage Act and the Conservation Act can go forward in a manner of mutual understanding and lead to a beneficial outcome for the Hobbs Drain.
Dated at Strathroy, this 22nd day of March, 2023.
Robert G. Waters Drainage Referee