Drain Short et No. 2A 2006

Si vous désirez obtenir une traduction de cette décision ou ordonnance, veuillez communiquer avec le bureau du Tribunal (voir ci-dessous).

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

And in the matter of: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Alan Webster, Thornhill, Ontario under Subsection 48(1) of the Drainage Act from the engineer's report on the Short and No. 2A Drain, 2006 in the City of Kawartha Lakes.

And in the matter of: A Pre-hearing Conference pursuant to Rule 24 of the Tribunal's Rules of Procedure;

And in the matter of: a motion by the City of Kawartha Lakes heard November 15th, 2011, pursuant to Rule 25 of the Tribunal's Rules of Procedure for the dismissal of the Section 48(1) appeal of Alan Webster before the Tribunal without a hearing.

Before: John O'Kane, Vice Chair

Appearances:
Valerie M'Garry, counsel for City of Kawartha Lakes
Judy Currins, Clerk for City of Kawartha Lakes
Alan Webster, appellant

Overview

This motion is the second motion made by the City of Kawartha Lakes to dismiss the appeal of Alan Webster made under subsection 48(1) of the Drainage Act (the Act).

The City brought this motion when Alan Webster failed to comply with a procedural order of this Tribunal that required him to file with the Clerk, written particulars of his appeal, a list of all documentary evidence, and a list of all witnesses together with copies of witness statements. That procedural order had been part of the September 1st, 2011 order dismissing the City's previous motion.

That procedural order specifically provided that the dismissal of the City's motion was without prejudice to the City renewing its dismissal motion. That provision was included because of my reservations and concerns, expressed in my September 1st reasons for decision, about Alan Webster's position, understanding and commitment to the appeal process under the Act.

In response to the September 1st procedural order, Alan Webster filed a four page handwritten letter and a one page attachment with the Clerk, albeit twenty-two days after the deadline set out in the procedural order. He filed no evidence on this motion to challenge the two affidavits filed by the City, but he did participate in the motion and made submissions in response to the submissions from counsel for the City.

The issues the City raised on this motion are:

• whether Alan Webster's appeal ought to be summarily dismissed because he failed to comply with the previous procedural order; or
• whether Alan Webster's appeal ought to be summarily dismissed because it is frivolous and vexatious.
  

Background Context of the Short and 2A Drain, 2006

In my September 1st, 2011 decision dismissing the City's first motion, I extensively reviewed the background of the Short and No. 2A Drain, 2006 and the various appeal proceedings that have unfolded in the five plus years since an engineer's report prepared under the Act recommended certain improvements to the drain. Therefore, I will not repeat that extensive background in this decision, but adopt by reference that background context into this decision.

Analysis and Conclusion

Does Alan Webster's Late Filing Warrant the Dismissal of his Appeal?

The Tribunal released the procedural order requiring Alan Webster to particularize his appeal issues and evidence on September 1st and a copy was faxed to Alan Webster's office on that day. Therefore, in accordance with the procedural order, Alan Webster's particulars document was due to be filed with the Clerk of the municipality, who under the Act serves as the clerk of the Tribunal, on or before September 21st, 2011.

The affidavit evidence of the Clerk, Judy Currins, confirmed that the envelope containing the Alan Webster particulars document was received in her office on October 13th, 2011 and the envelope was post-marked October 5th, 2011. Alan Webster filed no contradictory evidence on this motion and during his submissions he did not challenge either the date he post-marked his particulars document nor did he challenge the date that the Clerk received the particulars document.

The Webster particulars document was filed twenty-two days late.

By way of explanation of his tardy filing, Alan Webster told the Tribunal during submissions that when he received the September 1st procedural order he read it and concluded that he had until the end of the month of September to file his particulars.

Alan Webster advised during his motion submissions that he is a Chartered Accountant and the Vice-President of Finance of a company in the Greater Toronto Area. In addition, he advised that he owns some twenty farms in the County of Victoria. He advised the Tribunal, both in written communications and during his motion submissions about his absence from the previous motion hearing, that he and his employer were meeting with three vice-presidents of a major Canadian chartered bank. My conclusion is that Alan Webster is a sophisticated, educated and knowledgeable professional person.

Therefore, it is hard to accept Mr. Webster's explanation that, after reading the September 1st procedural order, he concluded that he had until the end of the month of September to file his particulars document.

On September 22nd, 2011, the day after the Alan Webster's deadline to file his particulars documents, counsel for the City wrote the Tribunal seeking a hearing date for a motion to dismiss Alan Webster's appeal for failing to provide the particulars as ordered.

On September 29th, 2011, the Tribunal office received a facsimile transmission from Alan Webster. The cover sheet indicated the transmission totaled ten pages; however, only seven pages were actually received. The Tribunal Coordinator telephoned Alan Webster at his office on September 29th and left a message about the transmission issue. Alan Webster did not respond to that message from the Tribunal Coordinator.

I therefore conclude that Alan Webster attempted, but failed to deliver his particulars document directly with the Tribunal on September 29th. However, in addition to being eight days after the filing deadline, it was not filed with the Clerk as ordered.

Mr. Webster's cavalier attitude about complying with an order of this Tribunal is worthy of censure, particularly since his failure to abide by the procedural order deadline directly resulted in the City bringing this dismissal motion. However, the appropriate mechanism for addressing that is by inviting submissions on costs, rather than by way of summary dismissal.

Is Alan Webster's Appeal Frivolous or Vexatious?

At the previous dismissal motion, the City argued then that Alan Webster's appeal was frivolous and vexatious. The reasons for decision of September 1st, 2011 contained an analysis about the law on determining whether an action is frivolous and vexatious. Drawing from that analysis, based largely on Madam Justice Brown's reasons in Her Majesty the Queen in Right of Ontario v. Rui Bin Xu 2011 (ONSC 2315 (CanLII), the following are, in my view, the two possible applicable factors, in the present circumstances:

• whether it is obvious that an action is not capable of success or that no reasonable person can reasonably expect to obtain relief
• whether the actions are brought for an improper purpose, including harassment or oppression of other parties by proceedings brought for purposes other than assertion of legitimate rights

Alan Webster's original appeal under section 48 of the Act was dated July 21st, 2007 and stated the following:

The undersigned hereby appeals to the Ontario Drainage Tribunal with respect to the report of Mr. Thomas Pridham P.Eng. recently adopted by Council of the City of Kawartha Lakes.

The basis of the appeal is that:

1. The cost of the works exceeds the benefit.
2. The work should be modified so as to not change the present character of the 2A Drain and the Mariposa Brook, and other grounds to be advised once engineering advice is available.
3. The allowances are inadequate to affected owners.
4. Other grounds as may be advised.

As revealed in Alan Webster's original appeal notice, his three issues are: costs exceed benefits; the design should be changed on engineering grounds; allowances to landowners are inadequate, and those issues flow from an engineer's report, adopted by the City Council.

In order to better understand the nature of that engineer's report, a review of the statutory context for an engineer's report is useful.

The relevant statutory scheme begins with section 8 of the Act which provides that an engineer appointed under the Act must examine the area requiring drainage and prepare a report that must include plans, profiles and specifications of the proposed drainage works; an estimate of the total cost; an assessment of the proportion of the cost to be assessed against each parcel of land or road for benefit, outlet liability and injuring liability; and, any allowances to be paid to landowners affected by the drainage works. In completing those statutory duties, section 11 of the Act provides the engineer with the following specific guidance and direction:

The engineer shall, to the best of the engineer's skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.

It is also useful to understand that the engineer's report in question in Alan Webster's appeal notice is a report dated March 2006, prepared by R.J. Burnside & Associates Limited and authored, signed and impressed with the seal of T. M. Pridham, a Registered Professional Engineer for the Province of Ontario (the "Report").

The Report comprises sixty-five pages of text, followed by several hundred more pages of maps, plans, profiles, specifications, designs, construction drawings, construction and assessment intervals, hydraulic modeling, input from the Department of Fisheries and Oceans, construction estimates and a preliminary assessment schedule.

As noted in my September 1st reasons, in the five years since that Report was delivered, Alan Webster had sufficient time to crystallize and refine his section 48 appeal issues, marshal his evidence and define his appeal strategy.

It is in that context that I turn to Alan Webster's handwritten four page document that he filed late, in response to the September 1st procedural order. That handwritten document particularizes his appeal issues, lists the documentary evidence and the witness evidence that he would rely on in a hearing of his appeal.

It is important to understand, as these are reviewed, that Mr. Webster confirmed in his particulars document that he will not call any expert witnesses or any witness other than himself, and that he planned to cross-examine the author of the Report. He also did not list or provide any documents other than a one page document dated September 26th, 2011 from Mike Fudge Construction.

My consideration of the first of the two factors from the Xu case was informed by this context shaped by the Report on the one hand and Alan Webster's particulars on the other. In this context, I consider the Webster particulars to be bordering on "not capable of success"; however, I am also informed by my experiences of sitting on dozens of drainage appeals where the particulars advanced by appellants consist of not much more than those advanced by Mr. Webster.

My consideration of the second of the two factors from the Xu case was also informed by the submissions Mr. Webster made during the motion. Those submissions included Mr. Webster's lengthy explanation about multiple issues that he says he has encountered with the City and its predecessor, including lawsuits. Those issues all appear to be unrelated to the Report and unrelated to the three issues raised in the Webster appeal notice. I had no evidence of any of that, only Mr. Webster's submissions. However, those submissions suggest to me that Mr. Webster may have a larger agenda and motivations beyond simply pursuing his appeal rights under the Act. Therefore, it was Mr. Webster's own words, rather than anything the City filed, that came within a razor's edge of engaging the second of the two factors from the Xu case recited above.

Based on the record before me, I am unable to conclude, but only by the slimmest of margins, that it is obvious no reasonable person can reasonably expect to obtain some relief.

Similarly, and again by the slimmest of margins, I am unable to conclude that the appeal has been brought for some improper purpose.

Order of the Tribunal

1. Therefore, the Tribunals orders that:The City's motion is dismissed.
2. The costs of the motion are hereby reserved until after considering written submissions.
3. The parties will exchange and file with the Tribunal office, within ten days of the date of this Order, written submissions on the costs of the motion not to exceed three pages of written text, excluding any case authorities or Bills of Costs or Costs Outlines.
   

John O'Kane, Vice Chair

Dated at Brampton, Ontario this 28th day of November, 2011.