Caster Section 5

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of:

Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Orven B. Caster, in Brechin, Ontario, under Subsection 5(2) of the Drainage Act from a decision of the council not to proceed with the drainage works for Part Lots 13 and 14, Concession C, in the Township of Ramara, Ontario.

Before:

John O'Kane, Vice Chair; Ron Gelderland, Member; Doug Flook, Member

Appearances:

Orven Caster, appellant
Michael Miller, counsel for the Township of Ramara, respondent
Wilbert Dove, landowner, witness for the Township of Ramara, respondent
Tom Hogenbirk, representative of the Lake Simcoe Region Conservation Authority, witness for the Township of Ramara, respondent.
Don Oliver, landowner, representing Ramara Road 47 landowners, about 13 properties
Ken Hill, counsel for the Lake Simcoe Region Conservation Authority

Decision of the Tribunal

Overview

Mr. Orven Caster appealed to this Tribunal from the January 28th, 2008 decision of the Township of Ramara not to proceed with Mr. Caster's petition for drainage of his land.

The appeal was under section 5(2) of the Drainage Act, R.S.O. 1990, chapter D.17, (the Act).

The appeal was heard at the Township of Ramara Council office on Tuesday May 13th, 2008.

A great deal of evidence was lead on May 13th, 2008 from Mr. Caster in support of his appeal as well as evidence from the Township opposing the appeal. Unfortunately most of the evidence lead by the parties at the hearing was irrelevant to the issue on a section 5 appeal. The issue on a section 5 appeal, as developed below, is very narrow and does not require detailed evidence and certainly not the kind of evidence lead at the hearing.

The Tribunal attempted several times during the hearing to guide the parties to the relevant issue but to no avail.

Petition Drains

A general overview of petition drains under section 4 of the Act provides the context for this decision.

The Act permits the owners of at least 60% of the lands in an area requiring drainage to petition the municipality for drainage by drainage works.

"Drainage works" is a defined term under the Act that is prefaced by the word "includes".

Throughout the definition section 1 of the Act there are examples of the legislators using either "includes" or "means". The Tribunal interprets the use of "includes" as direction from the legislators that what follows is not an exhaustive list. That definition is:

a drain constructed by any means, including the improving of a natural watercourse, and includes works necessary to regulate the water table or water level within or on any lands or to regulate the level of waters of a drain, reservoir, lake or pond, and includes a dam, embankment, wall, protective works or any combination thereof.

Analysis and Findings

The evidence that Mr. Caster has been working on his land since 1989 to remove trees, strip topsoil, construct roadways and berms, some or all of which may or may not be contrary to a variety of regulations is not relevant on an appeal under section 5 of the Act.

Mr. Caster filed a copy of an engineering report from Trow Associates Inc. dated June 14th, 2007 (the "Trow Report"). That report contained Trow's detailed engineering proposal for the drainage works on Mr. Caster's property as well as a cost estimate and proposed assessments. The author of the Trow Report did not testify.

The Tribunal explained to Mr. Caster the Township did not have any chance to challenge the Trow Report through cross-examination. As a result, although the Tribunal received the Trow Report we attach zero weight to it. In any event, engineering evidence is not relevant on an appeal under section 5 of the Act.

We accept Mr. Caster's evidence that his land requires drainage.

Mr. Caster filed a drainage petition with the Township of Ramara using the form dictated by section 4(2) of the Act. Mr. Caster was the only person that signed the petition dated July 26th, 2007 (the "Caster Petition").

There was no dispute before us that Mr. Caster owns more than 60% of the lands in the area requiring drainage.

However, in addition to the drainage petition, Mr. Caster also provided the Township with the Trow Report he had commissioned.

In response to the Caster Petition the Township sought advice from its drainage engineer K. Smart Associates Limited. The Township forwarded to its engineer both the Trow report and later the Caster Petition. The Township's drainage engineer wrote to the Township on August 8th, 2007 advising:

I have reviewed the petition and petition support that you faxed us on August 1, 2007. The petition as submitted is sufficient since Orven Caster signed and his name represents more than the 60% of land required (Section 4(1)(b) of the Drainage Act, RSO 1990).

Council should now decide if they wish to proceed with the petition and if they do wish to do so, then they tell the petitioner and then submit the petition to the Lake Simcoe Region Conservation Authority (L.S.R.C.A.) for their review. Once the L.S.R.C.A. responds (they have 30 days) then Council could appoint an engineer. (Tribunal's emphasis added)

Mr. Smart then referred to the last two paragraphs of his letter of July 4th, 2007 to the Township which still applied. He attached a copy of that earlier letter. The first of those last two paragraphs is reproduced here.

I must also advise the Municipality, that if a petition on the proper form is received and accepted, that it be submitted to the Conservation Authority pursuant to section 5(1)(b) of the Act and the comments of the Conservation Authority, if any, are to be obtained within a 30 day period prior to the appointment of an engineer to act on the petition. (Tribunal's emphasis added)

As reflected in the Township Council Minutes filed with the Tribunal, on September 17th, 2007 the Township of Ramara Council considered a motion to receive the Caster Petition and proceed with the drainage works on notice to all affected property owners and the required agencies. Council deferred that motion and adopted a follow up resolution to defer until they received written comments from the Lake Simcoe Region Conservation Authority ("L.S.R.C.A").

Section 5(1) of the Drainage Act creates two paths for the Township to take. The first path is a decision not to proceed with the works. The second path is a decision to proceed with the drainage works. However, when the second path is taken, the Township must then give written notice of the petition to, among others, the conservation authority.

Once the path to proceed is taken, it results in the appointment of a drainage engineer. The drainage engineer has very clearly defined duties under the Act including bringing a report back to the Township. The engineer's report might conclude the drainage works is not required, impractical or impossible under the Act or the report might recommend drainage works to be constructed. Once that report is returned the Township then may decide to adopt or reject the report. Short of the petitioner withdrawing, once the path to proceed is taken, it continues, at least until the return of the drainage engineer's report.

The Township didn't make any decision as to either section 5 path initially. It deferred its decision about proceeding until the L.S.R.C.A. provided its written comments, not on the drainage petition, but rather on the Trow report. The course taken by the Township did not follow the recommendations of Mr. Smart noted above.

The Township called Mr. Tom Hogenbirk, a professional engineer employed by L.S.R.C.A. and the author of a letter from that agency to the Township dated December 14th, 2007. That letter will be referred to later in this decision. During questions from the Tribunal Mr. Hogenbirk testified that in matters under the Act during his 15 years experience with the conservation authority:

1. The L.S.R.C.A. first receives a notice from a municipality of a drainage petition together with a timeline for the process.
2. The L.S.R.C.A. then gets invited by the drainage engineer to a site meeting.
3. At the site meeting the drainage engineer attends as does the road and drainage superintendent and the conservation authority, sometimes the Ministry of Natural Resources will attend, the petitioner is there as well as other landowners in the area.
4. He confirmed this case was unusual because the process in #1-3 did not happen.
5. He also confirmed this case was unusual because the L.S.R.C.A. was asked to comment on the Trow Report rather than on the petition for drainage.

When the Township ultimately made its decision on January 28th, 2008 not to proceed with the petition it did so only after receiving and considering correspondence from L.S.R.C.A. dated December 14th, 2007.

The December 14th, 2007 letter to the Township from L.S.R.C.A. concluded that the conservation authority could not support the drainage petition. The letter began with the following paragraph:

We have reviewed the above letter and attached Drain Petition Report by Trow Associates (dated June 14, 2007) that we received on November 13, 2007 and offer the following comments.

Mr. Hogenbirk confirmed during testimony that it was conceivable that some part of the Caster land could be drained without any significant concerns by L.S.R.C.A.

The Tribunal finds as a fact that Township Council made its section 5(1) decision not to proceed with the Caster Petition based on considerations that are not included in section 4 of the Act. The Tribunal finds as a fact that in making its decision on the Caster Petition the Township took into account extraneous and irrelevant considerations, specifically the L.S.R.C.A. letter of December 14th , 2007.

The only considerations in a section 5(1) decision are those contained in section 4 of the Act. The Township should not consider, for example, any other materials like the Trow Report, even if filed by the petitioner. The Township could consider the following, all flowing from section 4, which describes the requirements of a drainage petition:

1. The petition form under the regulations;
2. The names on the petition correspond with the names of the owners shown on the last assessment roll;
3. That the names of the signatories account for the majority of the owners in the area if the petition is made under s.4(1)(a);
4. That the owners named in the petition own at least 60% of the land in the area if the petition is made under s.4(1)(b);
5. That the person making the petition is a road superintendent or person with jurisdiction for roads if the petition is made under section 4(1)(c);
6. That the drainage works is on agricultural lands if the petition is made under section 4(1)(d).

An appeal from the Township's section 5(1) decision lies to this Tribunal under section 5(2) of the Act. The Tribunal powers on such an appeal are set out in section 51 of the Act. The Tribunal can make orders and give directions as authorized by the Act or as it considers proper to carry out the purposes of the Act.

The Act was first enacted in Ontario over 100 years ago. It has survived since that time with very few amendments. The Act's purpose is to provide procedures for people to get their lands drained without suffering the vagaries of private contract drains or enforcing riparian rights at common law.

The reason we overturn the Township decision not to proceed is because the Township failed to follow the Act procedures. The result of that failure is the petitioner Mr. Caster was denied the due process procedures set out in the Act. The remedy is to allow the petition to proceed.

A Cautionary Word

It was clear from the evidence that Mr. Caster has a unique approach to regulatory approvals. He testified about various regulatory approvals he had obtained for work at his property however we saw no clear evidence of approvals or permits. In some cases Mr. Caster construed the apparent non-response of an agency as an approval. Although that evidence is not relevant to a section 5 appeal and was not material to this decision it does require the Tribunal to take the extraordinary step of setting out what Mr. Caster should understand about this decision.

Mr. Caster testified about his goal to "restore" his property to the uses he purchased. The decision of this Tribunal is not a determination of any rights of restoration or rights of use of the Caster property. Those matters are beyond this Tribunal's jurisdiction.

Mr. Caster testified about the area requiring drainage. The decision of this Tribunal is not to be taken as any acceptance or endorsement of Mr. Caster's or Trow's views about the area requiring drainage. Under the Act, it is the duty of the drainage engineer appointed by the Township to determine the area requiring drainage.

Mr. Caster testified about his confidence that the Trow Report's recommendations for the drainage works and the related costs and assessments are beyond challenge. The decision of this Tribunal is not to be taken as any endorsement or approval or acceptance of anything in the Trow Report. It is the statutory duty of the drainage engineer appointed by the Township to address the drainage works, the costs and the assessments.

Although this decision directs that the Caster Petition proceed, it does not mean that there will necessarily be drainage works constructed. That determination remains to be made by the Township under section 45 of the Act after it receives the report from the drainage engineer appointed under the Act.

Order of the Tribunal

In the circumstances of this case, the Tribunal overturns the Township decision and directs the drainage petition to proceed.

The Tribunal orders that each party bear its own costs of this appeal.

Dated at: Brampton, Ontario, this 20th day of May, 2008.