|
Environment - Drainage Act (2). City of Ottawa v. Agriculture, Food and Rural Affairs Appeal Tribunal et al.
In City of Ottawa v. Agriculture, Food and Rural Affairs Appeal Tribunal et al. (Div Ct, 2026) the Divisional Court dismissed a municipality's JR, this brought against "the decision (“the Decision”) of the Agriculture, Food and Rural Affairs Appeal Tribunal (“AFRAAT” or “the Tribunal”) which set aside the report of Robinson Consultants dated June 2, 2022 (“the 2022 Report”) under s. 54 of the Drainage Act" ['Appeal to Tribunal'].
Here the court reviews aspects of the Drainage Act regime:The Drainage Act
[3] The Act provides a legal framework for the planning, construction and maintenance of communal drainage works. The local municipality in which the drainage works are located is responsible for its maintenance and repair in accordance with the by-law. An engineering report and assessment schedule are required to be appended to the by-law. The engineering report informs the assessment, which in turn sets out a formula that allows the municipality to recover costs from upstream property owners in the watershed of the drain.
[4] Section 74 of the Act states:Maintenance of Drainage Works and Cost
74 Any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, relating to the construction or improvement of a drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes, to the extent that such drainage works lies within the limits of such municipality, at the expense of all the upstream lands and roads in any way assessed for the construction or improvement of the drainage works and in the proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or on appeal therefrom. [5] Section 76 of the Act provides that, where conditions have changed or circumstances have arisen that justify a variation of the assessments for maintenance or repair of the drainage works, and all the lands assessed or intended to be assessed lie within the limits of one municipality, the council of the municipality responsible for the drainage works may procure and adopt an engineer’s report to vary the existing assessment. That engineering report forms the basis of any assessment for the maintenance or repair of the affected drainage works.
[6] Section 76(1) of the Act reads as follows:Varying original assessments for maintenance
76 (1) The council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal, of which notice has been given to the head of every other municipality affected by the drainage works, for permission to procure a report of an engineer to vary the assessment, and, in the event of such permission being given, such council may appoint an engineer for such purpose and may adopt the report but, if all the lands and roads assessed or intended to be assessed lie within the limits of one local municipality, the council of that municipality may procure and adopt such report without such permission. [7] In section 1 of the Act, “maintenance” is defined as the “preservation of a drainage works” and “repair” is defined as the “restoration of a drainage works to its original condition”.
[8] A “section 76” report is required to update the proportional rate of cost allocation for ongoing preservation and restoration of the drainage works
[9] Improvements of drainage works are governed by the process set out in s. 78 (1) of the Act, which reads as follows:Improving, upon examination and report of engineer
78 (1) If a drainage works has been constructed under a by-law passed under this Act or any predecessor of this Act, and the council of the municipality that is responsible for maintaining and repairing the drainage works considers it appropriate to undertake one or more of the major improvement projects listed in subsection (1.1) for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by section 4. [10] “Improvement” is defined in section 1 of the Act as any “modification of or addition to a drainage works intended to increase the effectiveness of the system” while the “major improvements projects” are listed in s. 78 (1.1):Projects
(1.1) The major improvement projects referred to in subsection (1) are:
1. Changing the course of the drainage works.
2. Making a new outlet for the whole or any part of the drainage works.
3. Constructing a tile drain under the bed of the whole or any part of the drainage works.
4. Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.
5. Extending the drainage works to an outlet.
5.1 Improving or altering the drainage works if the drainage works is located on more than one property.
6. Covering all or part of the drainage works.
7. Consolidating two or more drainage works.
8. Any other activity to improve the drainage works, other than an activity prescribed by the Minister as a minor improvement. [11] Section 51(1) of the Act reads as follows:Powers of the Tribunal
51 (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.
|
