Drainage Act Appeals
Table of Contents
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.
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 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 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.
*Tribunal Decision Final
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