Drainage Act Appeals

Agdex#:	557
Publication Date:	02/86
Order#:	86-014
Last Reviewed:	02/93
History:	Reprinted February 1993
Written by:	OMAFRA Staff

Table of Contents

1. Introduction
2. Court of Revision
3. The Ontario Drainage Tribunal
4. The Drainage Referee
5. Assessment Appeals
6. Benefits and Cost Appeals
7. Construction and Design Appeals
8. Legal and Procedure Appeals
9. Other

Introduction

The Drainage Act provides three bodies to which a landowner may appeal when a drainage works is being proposed or improved. The appeal bodies are the Court of Revision, the Ontario Drainage Tribunal and the Drainage Referee.

Court of Revision

The Court of Revision hears appeals on assessments - the portion of the cost of a proposed drainage work to be collected, as taxes, from the landowner. To appeal to the Court of Revision, a landowner assessed for the drainage works must give a written notice of appeal to the clerk of the initiating municipality at least ten days before the first sitting of the Court. Notice of appeal forms is available from the clerk. The notice must state which land is assessed too high or too low or which land has not had proper consideration of its use (examples are agricultural land assessed as non-agricultural, subdivided land assessed as agricultural land and land used for intensive agriculture such as greenhouses assessed at the same rate as other agricultural land).

If a notice of appeal is late, but presented prior to the first sitting of the Court, the Court may hear the appeal provided it passes a resolution to accept late appeals. Under these circumstances the Court can proceed only if it gives notice to all persons who might be interested.

The Court of Revision holds a hearing, within the municipality that initiated the drainage works, between 20 and 30 days after a copy of the provisional by-law is mailed to all the affected landowners. A quorum of the Court of Revision consists of the majority of the appointed members.

Where only one municipality is affected the Court consists of three or five members who have been appointed by the Council. Where more than one municipality is involved the Court consists of two members from the initiating municipality and one member from each of the other affected municipalities. To be appointed, the member must either be on Council or eligible to be elected to Council.

A decision of the Court of Revision can be appealed to the Ontario Drainage Tribunal.

The Ontario Drainage Tribunal

The Ontario Drainage Tribunal hears appeals on the technical aspects of the drainage works, and appeals on the assessment decisions of the Court of Revision. To appeal to the Tribunal a landowner must serve written notice, stating the grounds for the appeal, upon the initiating municipality. Notice of appeal forms is available from the municipal clerk. The clerk records the appeal and sends a copy to the Tribunal and to each person assessed for the drainage works. A person appealing does not require a lawyer, but may have one if the person so wishes. The Tribunal holds their hearing in a suitable room provided by the initiating municipality. The clerk of the initiating municipality is the Clerk of the Tribunal.

The Tribunal has the power to extend the time for appeals. Some decisions of the Tribunal are final while others can be appealed to the Drainage Referee. The list of appeals shows an asterisk (*) where the Tribunal's decision is final.

The Tribunal has the power to fix costs of the hearing and award them against a party to the hearing. At the time of writing (January 1986) the Tribunal has not used this power except in cases where a party requests an adjournment after the Tribunal has assembled, or where a party has failed to show up for the hearing. The costs are usually sufficient to pay for any professional or other witnesses who have come to give evidence at the hearing.

The Tribunal consists of a chairman and other members who are appointed by the Lieutenant Governor in Council for Ontario. Three members of the Tribunal, one of whom is a barrister entitled to practise in Ontario, constitutes a quorum. Currently, the chairman is a barrister, the vice chairman is an engineer and the other members are farmers and/or persons who have been involved in municipal government.

Where decisions of the Tribunal may be appealed, the appeal is heard by the Drainage Referee.

The Drainage Referee

The Drainage Referee hears appeals on the legal aspects of drainage work as well as appeals from a decision of the Tribunal. To appeal to the Referee a written notice must be served upon the Council of the initiating municipality. The clerk records the appeal and forwards it to the Clerk of the Court of the Referee. The legal procedures before the Referee are formal. It is advisable that an appellant seek competent legal counsel prior to submitting an appeal.

One important difference in the appeal bodies is that when appealing to the Court of Revision or Tribunal the appellant merely serves notice on the Clerk of the initiating municipality and the "system" arranges for the hearing; however, when appealing to the Referee the notice to the municipality is just a notice. It is up to the Appellant to follow the procedures set out in the Regulations for applying for a trial before the Referee.

The Referee can extend the time for appeals where he considers it proper. The Referee must issue an order stating how the cost of the hearing is to be paid; the costs are for professional advice and witness fees, not for the use of the Court facilities.

Actions brought before other courts can be transferred to the Referee where the Court Judge is of the opinion that the relief sought is properly the subject of a proceeding under the Drainage Act. See Section 106 of the Drainage Act for a listing of the appeals over which the Referee has original jurisdiction.

The Referee is appointed by the Lieutenant Governor in Council. The Referee is either a Justice of the Supreme Court of Ontario, a Judge of a County Court, or a barrister of at least ten years standing at the bar of Ontario.

The Referee holds his hearing in the County court House for the county of the initiating municipality. Where decisions of the Referee may be appealed, the appeal is heard by the Divisional Court.

The following list shows the appeals in categories of assessment, benefits and costs, construction and design, legal and procedural, and other.

Assessment Appeals

Grounds For Appeal	Who Can Appeal	Section of Drainage Act R.S.O. 1980	Time Limit for Appeal	Appeal Body
Assessments against lands within appealing municipality are illegal, unjust, excessive.	Any local municipality to which a copy of the report was to be sent.	50	Within 40 days after mailing of the provisional by-law to the municipality.	Tribunal*
That any land or road has been assessed too high or too low.	Any landowner	52(1)	At least 10 days before the first sitting of the Court.	Court of Revision
That any land or road that should have been assessed has not been assessed.	Any landowner	52(1)	A late appeal given before the first sitting of the Court might be accepted.	Court of Revision
Decision of Court of Revision	Any party to an appeal to the Court of Revision	52(1)	21 days from the pronouncement of the Court of Revision's decision.	Tribunal*
Where land is subdivided the assessment of a parcel of land may be appealed if the amount is over $500.	Any landowner affected by the subdivision of land.	65(5)	Within 40 days of sending apportionment by clerk.	Tribunal*
Where a piece of land is connected to a drain sometime after the report is made, the assessment of the parcel of land may be appealed if the amount is over $500.	Any assessed landowner who has connected his land to a drain.	66(2)	Within 40 days of mailing of the notice of assessment.	Tribunal*
Assessment on a report to vary original assessments.	Any assessed landowner.	76(4)	At least 10 days before the first sitting of the Court. A late appeal given before the first sitting of the Court might be accepted.	Court of Revision

*Tribunal Decision Final

Benefits and Cost Appeals

Grounds For Appeal	Who Can Appeal	Section of Drainage Act R.S.O. 1980	Time Limit for Appeal	Appeal Body
Cost of preparing the environmental appraisal.	Party requesting the environmental appraisal (MNR, Conservation Authority, local municipality).	6(3)	Within 40 days of receiving the account.	Tribunal*
Where dissatisfied with an environmental appraisal.	Any landowner within area requiring drainage, public utility, road authority, any local municipality, Conservation Authority, Minister of Natural Resources, Minister of Agriculture and Food.	10(7) 10(8)	Within 40 days of meeting to consider the preliminary report.	Tribunal*
Where benefits are not commensurate with cost as estimated.	Any landowner, Minister of Agriculture and Food.	48(1)a 48(2)	Within 40 days of mailing of the provisional by-law.	Tribunal*
The compensation or allowances provided by the engineer are inadequate or excessive.	Any landowner.	48(1)c	Within 40 days of mailing of provisional by-law.	Tribunal*
Engineer's account.	Local municipality	72(1)	Within 40 days of engineer presenting account.	Tribunal
Where the engineer has reported that drainage works is not required or is impractical or cannot be constructed on a requisition.	Any landowner	48(1)d	Within 40 days of mailing of the report.	Tribunal*

*Tribunal Decision Final

Construction and Design Appeals

Grounds For Appeal	Who Can Appeal	Section of Drainage Act R.S.O. 1980	Time Limit for Appeal	Appeal Body
Where the engineer has reported that the works cannot be constructed because a petition is not valid.	Any landowner	47(1)	Within 40 days of mailing of the provisional by-law.	Referee
The drainage works should be modified on grounds to be stated.	Any landowner	48(1)b	Within 40 days of mailing of the provisional by-law.	Tribunal*
The engineer has reported that the drainage works is not required or is impractical or cannot be constructed on a requisition.	Any landowner	48(1)d	Within 40 days of mailing of the report.	Tribunal*
That the drainage works will injuriously affect a scheme undertaken by the Authority under the Conservation Authorities Act.	Conservation Authority	49	Within 40 days of mailing of the provisional by-law.	Tribunal*
That the drainage works should be altered; That it does not provide sufficient outlet; That the drainage works should be carried to an outlet in the initiating municipality or elsewhere; The work is unnecessary.	Any local municipality to which a copy of report was sent.	50	Within 40 days of mailing of the provisional by-law.	Tribunal*
Correction of gross error in report.	Council of the initiating municipality.	58(4)	After by-law is passed and before assessments are levied.	Tribunal*
Quality of construction.	Any owner of land	64	Any time up to one year after drain certified complete.	Tribunal*
Repair not required or work never competed by municipality whose duty it was to do the work.	Council of local municipality	75	40 days of service of provisional by-law.	Tribunal*

*Tribunal Decision Final

Legal and Procedure Appeals

Grounds For Appeal	Who Can Appeal	Section of Drainage Act R.S.O. 1980	Time Limit for Appeal	Appeal Body
Against Council's decision not to accept petition; That Council has accepted a petition but has not appointed an engineer within 30 days of receipt of petition.	Any petitioner, Minister of Agriculture and Food	5(2)	None specified.	Tribunal
Where Council has accepted a petition but has not appointed an engineer within 60 days of notice to petitioners accepting petition.	Any petitioner, Minister of Agriculture and Food	8(3)	None specified.	Tribunal*
Where the municipality obtains a preliminary report and then does not appoint an engineer to prepare a final report.	Any petitioner, Minister of Agriculture and Food	10(6)	At any time after the receipt of the preliminary report.	Tribunal*
Where the report does not comply with the requirements of the Act.	Any landowner	47(1)	Within 40 days of mailing of the provisional by-law.	Referee
That the proposed drainage works as it affects the appealing municipality should be abandoned or modified, on grounds to be stated; That a petition received should combine with the proposed scheme.	Any local municipality to which a copy of report was sent.	50	Within 40 days after mailing of the provisional by-law to the municipality.	Tribunal*
Omission, neglect or refusal of Court of Revision to hear or decide an appeal.	Any party to an appeal to the Court of Revision	54(1)	21 days from the pronouncement of the Court of Revision's decision.	Tribunal*
Application to quash a by-law.	Any owner of land within the initiating municipality.	58(2)	Within 10 days of passing of the by-law.	Referee
Where council does not proceed with the construction of the work after passage of the by-law.	Any requisitioner, any petitioner or the Minister of Agriculture and Food.	58(5)	None specified.	Tribunal*
Improper spending of funds by initiating municipality.	Council of local municipality.	62(2)	Within 40 days of receiving engineer's report.	Tribunal*
Dissatisfaction with Tribunal adjustment of engineer's account.	Engineer or municipality.	72(2)	Not specified.	Referee

*Tribunal Decision Final

Other

Grounds For Appeal	Who Can Appeal	Section of Drainage Act R.S.O. 1980	Time Limit for Appeal	Appeal Body
Against engineer's report on a requisition drain.	All those listed after Section 47.	3(16)	As specified.	Court of Revision, Tribunal, Referee
Appeal of report for maintenance, repair or improvements on the same grounds as appeals on the construction of a works.	Council, landowners, etc. as specified above.	78(4)	As specified above.	As specified above
An application for an order for maintenance can be obtained if notice is given to the municipality stating a drain is out of repair and is affecting the land.	Any landowner.	79(1)	Application can be made 45 days after giving the municipality written notice that the drain is out of repair. The Notices must describe with reasonable certainty the alleged lack of maintenance and repair of the drainage works.	Referee
Report for abandonment of a drain on same grounds as a report for construction of work.	Any landowner.	84	As specified above.	Referee