Chatham (Township) v. Dover (Township)

Chatham (Township) v. Dover (Township)
Collection
Supreme Court Judgments
Date
1886-04-09
Report
(1886) 12 SCR 321
Judges
Ritchie, William Johnstone; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Municipal law
Decision Content
Supreme Court of Canada
Chatham (Township) v. Dover (Township), (1886) 12 S.C.R. 321
Date: 1886-04-09
The Corporation of the Township of Chatham and North Gore (Defendants) Appellants;
and
The Corporation of the Township of Dover East and West (Plaintiffs) Respondents.
1885: November 21, 23, 24; 1886: April 9.
Present: Sir W.J. Ritchie C.J., and Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Municipality—Drainage in—Petition for—Extending into adjoining municipality—Report of engineer—Not defining proposed termini—Benefit to lands in adjoining municipality—Assessment on adjoining municipality.
Under the drainage clauses of the Municipal Act a by-law was passed by the township of Chatham founded on the report, plans and specifications of a surveyor, made with a view to the drainage of certain lands in that township. The by-law, after setting out the fact of a petition for such work having been signed by a majority of the rate payers of the township to be benefited by the work, recited the report of the surveyor, by which it appeared that in order to obtain a sufficient fall it was necessary to continue the drain into the adjoining township of Dover. The surveyor assessed certain lots and roads in Dover, and also the town line between Dover and Chatham, for part of the cost as for benefit to be derived by the said lots and roads therefor. The township of Dover appealed from this report, under sec. 582 of 46 Vic. ch. 18, on the grounds, inter alia, that a majority of the owners of property to be benefited by the proposed drainage works had not petitioned for the construction of such work as required by the statute; that no proper reports, plans, specifications, assessments and estimates of said proposed work had been made and served as required by law; that the Council of Chatham, or the surveyor, had no power to assess or charge the lands in Dover for the purposes stated in the said report and by-law; and that the report did not specify any facts to show that the Council of Chatham, or their surveyor, had any authority to assess the lots or roads in Dover for any part of the cost of the proposed work; that the assessment upon lots and roads in Dover was much too high in proportion to any benefit to be derived from the proposed work, and that no assessment whatever should be made on the lands or roads in Dover as the work would, in fact, be an injury thereto; and that the report did not sufficiently specify the beginning and end of the work, nor the manner in which Dover was to be benefited.
Three arbitrators were appointed under the provisions of the act, and at their last meeting they all agreed that the township of Dover would be benefited by the work, but R.F., one of the arbitrators, thought $500 should be taken off the town line, and W.D., another of the arbitrators, held that while the bulk sum assessed was not too great, the assessment on the respective lands and roads, and parts thereof, should be varied, but that this was a matter for the Court of Revision. A memorandum to this effect was signed by W.D. and A.E., the third arbitrator, at the foot of which R.F. signed a memorandum that he dissented and declined to be present at the adjourned meeting to sign the award, “if in accordance with the above memoranda.” Later, on the same day, W.D. and A.E. met and signed an award determining that the assessment on the lands and roads in Dover, and on the town line, made by the surveyor should be sustained and confirmed, and that the appeal should be dismissed, and that the several grounds mentioned in the notice of appeal had not been sustained. The Queen’s Bench Division set aside this award on the two grounds, namely, of want of concurring minds in the arbitrators, and of defect in the surveyor’s report in not showing specifically the beginning and end of the work. The judgment of the Queen’s Bench Division was sustained by the Court of Appeal. On appeal to the Supreme Court of Canada:
Held, Ritchie C.J. dissenting, that the award should have been set aside upon the ground that it was not shown that a petition for the proposed work was signed by a majority of the owners of the property to be benefited thereby, so as to give to the corpora tion of Chatham jurisdiction to enter the township of Dover and do any work therein.
That the arbitrators should have adjudicated, upon the merits of the appeal, against the several assessments on the lots and roads assessed, as their award was, by secs. 400 & 403 of 46 Vic. ch. 18, made final, subject to appeal only to the High Court of Judicature, and it was not a matter for the Court of Revision to deal with at all as held by one of the arbitrators. That the award should have been set aside because it did, in point of fact, as it stood, profess to be a final adjudication against the township of Dover upon all the grounds of appeal stated in the notice of appeal, and did, in point of fact, charge every one of the lots and roads so assessed with the precise amount assessed upon them respectively, although, by a minute of the proceedings of the arbitrators who signed the award, it appeared that they refused to render any award upon such point and expressed their intention to be to submit that to the Court of Revision.
That the arbitrators should have allowed the appeal to them against the surveyor’s assessment, and that their award should also have been set aside on the merits, because the evidence not only failed to show any benefit which the lots or roads in Dover which were assessed would receive from the proposed work, but the evidence of the surveyor himself showed that he did not assess them for any benefit the work would confer upon them, but for reasons of his own which were not sufficient under the statute and did not warrant them to be assessed.
APPEAL from a decision of the Court of Appeal for Ontario[1] affirming the judgment of the Divisional Court[2], which set aside the award in an arbitration between the municipalities of Dover and Chatham.
The facts of the case are fully set out in the previous reports and in the judgment of Mr. Justice Gwynne in this court.
Pegley for the appellants.
Practically, the question to be decided is, whether the award was valid or not.
The Cons. Mun. Act of 1883 contains the provisions under which the proceedings in this case have been carried on. See sections 570 to 590 inclusive.
There are two species of enactment in regard to the construction of drains. One where a drain goes near an adjoining township but does not enter it, and the other where it does enter the lands of the adjoining township. This case belongs to the second class.
The respondents will contend that in the absence of an express provision Dover could not be assessed for this drain, but it is submitted that sec. 579 applies to this case and is such an express provision.
We must read all the sections together to ascertain the mind of the legislature. I would refer to secs. 576, 578, 579, 580, 581 and 582, in which the language used is the same.
Taking the grounds of objection as set out in the notice of the respondents, I would say as to the first, that the arbitrators were not functus officii; that what is claimed to be an award first made is merely a memo, of the intention of the arbitrators, and the subsequent finding was the proper award. Two of the arbitrators could sign. Sec 402.
As to the objection of want of concurrence in the minds of the arbitrators, I submit that there was such concurrence. They may have differed as to their powers, but that was all. They had no authority to distribute the assessment which must be done in the Court of Revision subject to an appeal to the County Court Judge. Grant v. Eastwood[3].
The next objection is, that the award was contrary to law and evidence. I submit that this award must be taken as the finding of a jury and the court will not inquire as to whether the award was too much or too little.
As to the objection that there was not a proper report of the surveyor, I submit that the evidence is clear that the surveyor pursued the usual course and the report is sufficient. It is contended that the full details should have been reported, but that would have been almost impossible to be done, and of very little use if it were done.
Again they say there was no proper by-law, and no proper petition. That objection is not open to them here. They proved the by-law themselves, and the by-law recited the petition. Montgomery v. Raleigh[4].
It is contended that Chatham had no power to carry their drain into Dover further than sufficient to find fall enough to carry off the water beyond the limits of Chatham, and could not assess Dover therefor.
The act provides how far the engineer can go and he has not gone farther than the law allows. The power to assess I have already pointed out.
In answer to the next two objections, it is submitted that the titles to the lands assessed in Dover are sufficiently set out in the report.
It will be contended that no power is given to the engineer to assess for bridges. But it is clear that where power to do a thing is given by an act there is, by necessary implication, power to do everything requisite to the completion of the work. See sec. 570 of the Act of 1881, and sec. 529 of ch. 24 of the R.S.O.
Robinson Q.C. and Matthew Wilson for the respondents.
There are three or four important questions of law to be considered.
We contend, first, that there was no concurrence in the minds of the arbitrators to make the award relied on by the appellants.
One declines to sign the award altogether; another objects to the distribution. Who then is to sign an award confirming that distribution? The only award that could be made was one according to the memo., and we had a right to have the opinion of Douglas before the Court of Revision.
Then we submit that the Engineer had no power to assess the lands and roads, or if lands, not roads, in the lower townships.
See the judgments delivered in the court below[5], and see sec. 284 of the Municipal Act of 1883.
The only case where power to assess is expressly given is in that of an upper township. Sec. 580.
Then, if they had power to assess lands, had they power to assess roads also? That will depend upon the question whether or not the arbitrators had anything to do with the distribution of the assessment. That has occasioned great difference of opinion among the judges of the court below. It was supposed to be set at rest by two decisions in our court, Essex v. Rochester[6], cited in Thurlow v. Sidney[7] but they were found not to do so.
It is contended that there must be power to assess or else the provision as to giving notice, &c., would be useless. But a section merely pointing out a mode of procedure cannot enlarge power to assess. Wilberforce on Statutes[8].
The report is not sufficient as it does not specify the work to be done. It should be sufficient to entitle us to compel them to perform the work as we would have to pay the money whether it is done or not. Chatham v. Sombra[9].
The following authorities also were cited:—
Northwood v. Raleigh[10]; Rome v. Township of Rochster[11]; Harrison’s Municipal Manual[12].
Pegley was heard in reply. Sir W.J. RITCHIE C.J.—This case was very fully discussed by the learned judge before whom it was originally heard, and by the judges of the Court of Appeal for Ontario.
Chief Justice Cameron set the award aside on two grounds; first, the want of concurrent minds on the part of the arbitrators, and secondly, the insufficiency of the original report, in not disclosing the beginning nor the end of the work.
Hagarty C.J. thought the report not open to objection as not showing a fixed point of commencement; with the aid of plans he thought it readily ascertainable, and that it sufficiently fixed the amount to be assessed against Dover as to lots and roads; and did not think the objection fatal that the surveyors could only go into Dover as far as was necessary to get sufficient outfall; he thought, that in view of the opinion of Mr. Douglas, the award should not have formally sanctioned and affirmed the whole of the assessment, but should merely have affirmed the amount of the assessment as a whole, and not the detailed adjustment of the assessment as made on lands and roads. Yet strange to say, as Mr. Justice Burton points out, one of the reasons assigned by Dover against the validity of the award is “that the arbitrators did not confirm, nor intend to confirm, the different particular assessments.” Mr. Justice Osler thought that Dover could not be legally assessed for and on account of the roads in Dover or for the town line; he also thought the surveyor’s report defective, in not showing one of the termini of the proposed work, the last station being omitted in profile plans; also in not stating, as expressly required by section 578, that the work is to be constructed at the expense of both municipalities, and in what proportion. Mr. Justice Patterson thought that where roads derive a benefit from a work which is continued into the municipality, the same liability exists as is clearly imposed where the works do not extend beyond the municipality where they are commenced but greatly improve the roads of another; he did not think the report, plans, &c., open to the objection of want of definiteness, and as to removing obstructions below 240—$350, it can have no force since the passing of 45 Vic. ch. 26, three weeks after the date of the report, and over a year before it was communicated to the head of the Dover Council and which enacts that the R.S.O. ch. 174, sec. 529, should extend to the removal of any obstruction which prevents the free flow of the waters of any stream. This is now in section 570. And as to the objection that the engineers had no right to continue the proposed deepening or drainage farther into Dover than sufficient to find fall enough to carry the water beyond the limits of Chatham, the learned judge says:—
I can find no proof in support of this objection. The evidence of two surveyors seems rather to suggest that the work should be carried farther than proposed, on account of the creek being obstructed.
The learned judge goes on to say that section 570 makes provision for passing by-laws for work which may be desirable, for determining what property will be benefited, &c., the proportion in which assessments should be made on the various portions of lands so benefited, and in every case of complaint by the owner, &c., to proceedings for trial of such complaint, and appeal therefrom, as under the Assessment Act. Reading section 581 with section 578, and with sections 580 and 570, the learned judge says:—
It seems perfectly manifest that the servient municipality is in no way affected by the engineer’s detailed assessment of its lots and roads, but is bound only by his apportionment of the aggregate amount between the two municipalities. That amount it distributes, by its own by-law, among its lands and roads in the same manner and with its same incidents of appeal to its own Court of Revision and to the judge, as the other municipality. Each may avail itself, to what extent it pleases, of the engineer’s details; those details will, doubtless, as a matter of practice, be, in most cases, adopted and followed in the by-law, but the statute leaves both municipalities alike free to vary them.
The learned judge also thought the appeal from the report simply an appeal against the aggregate charge upon the municipality, and he did not think the award differs from the memorandum; he thought the arbitrators had no jurisdiction to deal with the apportionment, and the award disposes of the matters over which the arbitrators had jurisdiction. Therefore he thought the award good and that the appeal should be allowed.
Burton J. thought the view taken by Douglas was the correct one, namely, that if one of the parties, or the municipality, complained of the assessment inter se, the proper course was to appeal to the Court of Review, when the by-law determining the assessment had been introduced, and it was a matter with which the arbitrators had no concern, As to the objection that the award proposes to confirm the assessment made by the surveyors on the roads and lots and parts of lots on the several proportions mentioned by him, and that the findings did not set forth, or show, or assess, or charge every road, lot, &c., in proportion, &c., that the arbitrators did not confirm, or intend to confirm, the different particular assessments, the learned judge thought that to hold the award bad on that ground would be to ignore what took place before the arbitrators, where the council for Dover wished them to consider the propriety of the several assessments, and also would be in the face of the admission by Dover in the objection to the award that it does not set forth or show or assess or charge every road, lot or portion of lot, &c. As to the sufficiency of the surveyor’s report the learned judge thought the plans and profile, in connection with the report, intelligible enough, and he thought the only question the arbitrators had to deal with was the gross amount charged against the municipality, and that Douglas was correct in his view of the law, and the objection on the ground of want of concurrence between the two arbitrators, fell to the ground.
The main question as to the validity of the award seems to me to be: Were the arbitrators bound to pass on every assessment or charge on every road and lot, or portion of lot, according to the proportion of benefit the same, in the opinion of the arbitrators, derives, or will derive, from the work, or to confirm the different particular assessments? I think it was the duty of the arbitrators to pass only on the validity of the assessment in respect to the gross or bulk sum assessed, and not on the lands and roads, and parts thereof, assessed. It appears to me, that under section 580, and the sections referred to by Mr. Justice Patterson, that the only matter which is subject to appeal on the report, &c., served on the head of the council of the municipality into which the deepening or drainage is to be continued, is the adjustment of the proportion in which each of the two municipalities shall contribute, and no provision having been made for bringing the property owners before the arbitrators a fair inference, and, in fact, a fair construction of the statute, I think, is that they were, if dissatisfied with the individual apportionment, left to appeal from the assessment under the by-law to the Court of Review, or appeal as in ordinary cases, to have the assessment properly apportioned among themselves, without interfering with the gross or aggregate amount placed on the municipality, and this is the view of one of the arbitrators, and if correct his mere statement of it could in no way affect the validity of the award. In my opinion, the award is not bad in not determining this latter question. If, then, the duty was confined to determining only as to the correctness of the gross or bulk sum think the award good. The memorandum signed at the meeting at 9.15 a.m. of the 18th of May, 1883, was not the formal award, but simply a memorandum for drawing up the formal award, for the signing of which a time and place were fixed, namely, four o’clock of the same day, at the same place, of which Fleck, the dissenting arbitrator, had full notice, and having declined, under his hand, to sign any award, and having, in like manner, also declined to be present at the adjourned meeting to sign the award it in accordance with the memorandum of the morning, and the formal award of the majority, as contained in such award, being in accordance with the memorandum of the morning as to the bulk or gross sum and costs, there was, on all matter so awarded, a consensus of opinion by the majority; the absence of Fleck, when the formal award was signed, did not, in any way, vitiate the award so made, the arbitrators not being functus officii as alleged.
I cannot say the surveyor’s report, with the plan and profile, does not disclose the beginning or end of the work; the starting point seems plain enough, and, although the right of the surveyor is limited to the point where he finds fall sufficient to carry the water beyond the limits of such (dominant) municipality, in this case he did so to remove obstructions from the stream, and the charges for work as to be done were $350. It is said this does not come within the terms of the statute, but if there is no sufficient fall without removing these obstructions, can it be said that until he removed them, he had found a sufficient fall, the intention, in my opinion, being, as Mr. Justice Cameron expresses it, to make it running, and not stagnant, water at that point? I think that Dover was assessable for and on account of the roads in Dover, and for the town line.
I think there is a sufficient statement that the work is to be constructed at the expense of both municipalities, and that the proportions are made sufficiently apparent.
It is suggested that, in point of fact, Dover was not benefited by the work. Chief Justice Cameron thus disposes of this question.
A knowledge possessed by the arbitrators of the locality may enable them to see benefits that I do not, and I would therefore, on the mere question of amount of benefit, defer to them.
And Hagarty C.J.O., in the Court of Appeal, says:—
I share his (Chief Justice Cameron’s) reluctance to interfere on that ground alone with the decision of the arbitrators, the more particularly as the dissenting arbitrator was willing to hold Dover benefited in a lesser sum than they awarded.
The strongest evidence, I think, is to be found in the fact that the arbitrator for Dover appears to have been unable to arrive at the conclusion that Dover derived no benefit, but, on the contrary, was of an opposite opinion, and differred from his co-arbitrators only as to the quantum of benefit, the majority of the arbitrators thinking the benefit was to the extent of $1,000, and the arbitrator for Dover putting the amount of the benefit at $500.
Before I should be presumptuous enough to interfere in a case, and on a point, such as this, and say the award was wrong, and that the court below were wrong in upholding it on this ground, in a matter on which the arbitrators and the judges of the court below, from local knowledge, are so much more capable of forming an opinion than I can presume to be, I should require that the case should be beyond all reasonable doubt, which, in my opinion, is by no means the case here.
I entirely agree with the judgments of Patterson, and Burton JJ., and think this appeal should be allowed. FOURNIER J.—I have not been able to come to that conclusion. I think the appeal should be dismissed,
Each portion of the lots or roads should be assessed for its portion of benefit to be derived from the work done. This has not been done here.
I doubt very much if any appeal would lie in this case, because these proceedings seem to me to be regulated by special acts, unless giving an appeal in matters of award would be applicable here.
I have read the very full and exhaustive judgment prepared by Mr. Justice Gwynne, and concur in all that he says.
HENRY J.—After considering this case with a great deal of attention, 1 have satisfied my mind that the whole of the proceedings were unauthorized by any law. I will deal with it as presented by the argument, by the evidence, and by the opinion of the learned judges in Ontario, and then I will turn to the question of the legality of the proceedings.
The application for the work to be done to be presented to the town council as required by sec. 570 of the act, that is taking the act of 1888, is to be signed by a majority of the parties to be benefited. In this case a number of the parties interested in the township of Cover are reported by the surveyor as the parties who are to be benefited. No application was made to them to sign a petition; they were not called upon in any way to take part in this transaction. Now let us look at the statute, which I will read. (His Lordship read sec. 570 of the Municipal Act of 1883.)
Under that statute the council would have authority only in case a majority of the parties who are to be benefited by the improvement in the township should sign the petition.
But there is no provision made in this proceeding for obtaining the signatures of parties in that township to the petition, although alleged to be benefited. It would appear, if the provision of section 570 is to be studied, and for the purpose of carrying out what is intended, that the parties who are to be benefited should be all considered, and in that case, where the law provides that a majority of the parties to be benefited by the improvements must sign the petition, if they are resident out of the township they are not here as petitioners. The policy of that provision of the law is simply to enable a majority to force the minority to make the improvements. But if the township of Chatham is to be benefited and not Dover, and the majority in Chatham were to sign a petition and the council of that township could act on that petition and tax the people of Dover, the principle would not apply.
I cannot think that a bare majority in the township of Chatham should originate proceedings where the contemplated works would extend into Dover, and that the legislature could be said to have endowed them with the power of making improvements that in the township of Chatham may cost $1,000, and in the township of Dover may cost four times as much, and the people in the latter taxed without having any voice or say in the matter. It seems to me that where the property is situated in two townships it would be necessary to show that the petition was signed by a majority of the persons to be benefited in both.
I have already said that if the act authorised the proceedings, section 570 is the only provision in the law by which this right could be exercised in Dover, and I am of opinion that that section requires the petition to be signed by a majority of the persons to be benefited in both townships. The law making provision for an appeal from the decision of the surveyor allows such appeal to arbitrators whose decision shall be final on the whole question of benefit. It is in evidence that objections were taken and fyled with the arbitrators, who declined to consider them. I think it was the duty of the arbitrators to consider these objections. I do not think the award made was a good or binding one. It is a well known principle that if certain matters are left to arbitrators, who fail to consider them, the award is not good. The minutes in evidence show that several matters were not considered.
Another objection that I take is that the weight of evidence shows that Dover was not to be benefited by the change. Then, if this benefit is altogether for the township of Chatham, what right had that township to tax Dover?
If the improvement is made it leaves Dover according to the evidence just about where it is at present. But we have, I think, only to look at the evidence of the surveyor himself. He says:
In making the assessment in Dover I took into consideration that Chatham had made all these taps mentioned, and if Chatham had not done so, perhaps I would not have assessed Dover at all for this work. * * * I would not have assessed either lands or roads in Dover so high for this work if the cut off had not been made by Chatham.
The meaning of that is, that because Chatham had previously made a drain at its own expense, years afterwards it would have a right to tax Dover.
And when we have, in addition to that, the almost certain evidence that Dover was not to be benefited in any way, I think the whole proceedings are inequitable.
But I have still another objection to the whole of the proceedings in this case. I am of opinion that they were all bad from beginning to end. Section 577 provides for the taxation of an adjoining township where the work to be done extends beyond the limits of the municipality where it is commenced. If the work of drainage in this case is commenced in Chatham and being a benefit to Dover, is brought up to the limits between the two townships, then this section applies.
Section 577 is as follows: (His Lordship read the section.)
Now how does the case stand? This act is not intended to allow one township to go into another, make a drain, and alter their bridges and roads and affect and tax the property owners. It is simply to come up to the limits, and the law provides that if the operation is beneficial to the adjoining township the latter may be called upon to contribute. But here Dover is sought to be taxed for a portion of the work to be done in Dover beyond the limits of Chatham. Now where is the law to be found to sustain such a claim? Surely if the legislature had intended that one township could go in and dig drains in and tax another it would have said so.
Then I turn to section 578 and that section provides: (His Lordship read this section.)
That does not alter the other clauses. Then section 580 says: (This section was then read by His Lordship.)
That does not allow one township to go into another. The law protects civil rights and we are to construe the public statutes so as to prevent any interference with these rights.
Then how are we to construe these sections? Plainly it must be that a township is not to operate outside of its own limits. How can we say that the statute intended one township to operate in another unless it so prescribes and enacts?
Then section 582 provides: (His Lordship read this section.)
“If the work being continued in its limits,” that is, where it is brought up to the line and the other township benefited, the work being continued within the limits where it was commenced.
But if I had any difficulty in the construction to be put on these sections I think section 598 would settle it beyond all question or manner of doubt. That section says:
Where any works proposed to be constructed in any locality under section 570 affect more than one municipality, either on account of such works passing, or partly passing, through two or more municipalities, or on account of the lowering or raising of the waters of any stream or lake, which is contemplated in the proposed scheme of drainage, either draining or flooding lands in two or more townships, the county council of the county to which such municipalities belong, upon the application of the council of any of the municipalities affected, and without any preliminary petition from the owners of the property to be benefited, may pass by-laws for the purposes authorized by the said section.
The application for the improvement in question should have been brought before the county council. I think no one township could originate the proceedings, and contract for an expenditure of money, in another. The legislature says, “where the work passes through two or more municipalities,” which it did here, and section 59S clearly provides for a case of that kind and no one council is authorized to deal with it, but either may apply to the county council
So think that our judgment should be to dismiss the appeal and confirm the judgment of the Court of Appeal for Ontario.
TASCHEREAU J.—The appeal, in my opinion, should be dismissed for the reasons given by Mr. Justice Gwynne, in whose judgment I concur.
GWYNNE J.—By the Municipal Institutions Act in force when the proceedings which are the subject of this appeal were instituted by the Township of Chatham, namely, ch. 174 of the Revised Statutes of Ontario, in its 529th section it is enacted that:—
(His Lordship here read the section) By the 530th section it is enacted that “such by-law shall, mutatis mutandis, be in the form or to the effect following:”
Here follows the form of a by-law framed wholly as applicable to the case of a work contemplated to be completed within the limits of the municipality in which it originates, leaving it to the draftsman of a by-law for a case coming within the 2nd sub-section of section 529, namely, to the case of a work extending beyond the limits of the municipality in which it originates, to frame a by-law applicable to such a case upon, the model (mutatis mutandis) of that given in section 530 for a work completed within the municipality in which it originates. To this model it will, however, in the case before us, be useful to refer for the purpose of seeing what the legislature has enacted should appear in a by-law fox executing works of this nature to make it a good by-law. The form is headed:
A by-law to provide for draining parts (or for the deepening of , in , as the case may,) the township of , and for borrowing, on the credit of the municipality, the sum of for completing the same,
Provisionally adopted the day of A.D.,
Whereas a majority in number of the owners as shown by the last revised assessment roll of the property hereinafter set forth, to be benefited by the drainage (or deepening as the case may be) have petitioned the council of the said township of praying that (here set out the purport of the petition describing generally the property to be benefited).
Now, from this clause it appears that the preliminary essential condition precedent, necessary to give the council jurisdiction to take any action which could have any binding effect whatever upon any persons sought to be made chargeable with any part of the cost of such a work, is that a petition should be presented to the council praying for the performance of the proposed work, describing its nature, and signed by a majority of the owners of the property to be benefited by the proposed work, which property should be designated in the by-law. The next clause is:
And whereas thereupon the said council procured an examination to be made by , being a person competent for such purpose, of the said locality proposed to be drained (or the said stream, creek or water course proposed to be deepened, as the case may be) and has also procured plans and estimates of the work to be made by the said , and an assessment to be made by him of the real property to be benefited by such drainage (or deepening as the case may be) stating as nearly as he can the proportion of benefit which, in his opinion, will be derived in consequence of such drainage (or deepening as the case may be) by every road, and lot, or portion of lot, the said assessment so made, and the report of the said in respect thereof and of the said drainage (or deepening as the case may be) being as follows (here set out the report and assessment of the engineer or surveyor employed,)
Now from this clause it appears clearly that the duty of the engineer employed to examine the work was, first, upon a survey to determine the total cost of the proposed work; and then to assess the whole of the property which, in his opinion, would be benefited by the proposed work, whether consisting of roads or lots, with the whole of such cost; the proportion of benefit to be derived by each road, lot, or part of lot, upon completion of the work being specially assessed against each such road, lot or part of lot. The by-law then proceeds:—
And where as the said council are of opinion that the drainage of the locality described (or the deepening of such stream, creek or water course, as the case may be) is desirable: Be it therefore enacted by the said municipal council of the said township of
pursuant to the provisions of ch. 174 of the Revised Statutes of Ontario—
1st. That the said report, plans and estimates be adopted, and the said drain, (or deepening as the case may be) and the works connected therewith, be made and constructed in accordance therewith.
2nd. That the Reeve of the said township may borrow on the credit of the corporation of the said township of the sum of , being the funds necessary for the work, and may issue debentures of the corporation to that amount in sums of not less than one hundred dollars each, and payable within years, with interest at the rate of per centum per annum, that is to say in (insert the manner of payment whether in annual payments or otherwise) such debentures to be payable at and to have attached to them coupons for the payment of interest.
3rd. That for the purpose of paying the sum of being the amount charged against the said lands so to be benefited as aforesaid other than lands (or roads, or lands and roads,) belonging to the municipality, and to cover interest thereon for years at the rate of per cent. per annum, the following special rates over and above all other rates shall be assessed and levied in the same manner, and at the same time, as taxes are levied upon the under mentioned lots and parts of lots; and the amount of the said special rates and interest assessed as aforesaid against each lot, or part of lot respectively, shall be divided into equal parts, and one such part shall be assessed and levied as aforesaid in each year for years after the final passing of this by-law, during which the said debentures have to run.
Here follows a schedule of the lots assessed as benefited, with the amounts respectively assessed against each, by the engineer appointed to examine and report upon the work as appearing in his report to the council, and the by-law proceeds:
4th. For the purpose of paying the sum of being the total amount assessed as aforesaid, against the said roads (or lands or roads and lands) of the said municipality and to cover interest thereon for years, at the rate of per cent. per annum, a special rate of in the dollar, shall, over and above all other rates, be levied, in the same manner and at the same time as taxes are levied upon the whole rateable property in the said township of in each year for the period of years after the final passing of this by-law, during which the said debentures have to run
The statute then provides by a second sub-section to the said 530th section that:
In the event of the assessment being altered by the Court of Revision or judge, the by‑law shall, before being finally passed, be amended so as to correspond with such alteration by the Court of Revision or judge (as the case may be).
Now, it is to be observed that the form of by-law above given in sec, 530, and the whole of that section with its sub-section and of sec. 529 with all of its subsections except the second, relate exclusively to a work to be completed in the municipality in which it originates, and that this 2nd sub-section of sec. 529, which is the only one which relates to a work originated in one municipality and continued into another, provides that the originating municipality shall raise the funds necessary to defray the cost of the entire work, subject to be reimbursed (to use the language of the sub-section) “as hereinafter mentioned.” Upon the municipality in which the work originates the burthen of providing all the funds necessary for the completion of the entire work seems to be imposed, subject, however, to a right to be re-imbursed by the municipality into which the work is continued for such special benefit as the work shall confer on the lots and roads in the latter municipality.
The only provision made which authorizes a municipality in which a work originates to continue it into an adjoining municipality, or for reimbursing the former in such a case for any part of the cost of such continuance, is contained in the following sections: (His Lordship then read secs. 534, 536 and 537.)
Now from these sections it is apparent that the only purpose for which the legislature has given to one municipality the extraordinary exceptional power of sending its officers into an adjoining municipality and of constructing any work of drainage therein, is to carry off the water brought down by the work commenced in an upper municipality, and the only case in which power is given to charge the municipality into which the work is continued, or the lands situate within the limits of such municipality, with any part of the cost of such work is in the event that the lands of the municipality (in which term I include its roads), or the lands of individual owners situate within the limits of the municipality, derive a special benefit from the work, and such power is limited to the extent of such benefit, by which term, as applied to such a case, I understand that the roads and lands so charged should derive such a substantial benefit from the work, beyond that which they respectively enjoyed independently of such work, as to make it plainly just and proper that they should be made to contribute to the cost of a work undertaken for the sole benefit of lands situate in another municipality, and actually necessary for effecting that object. As it is not competent for the engineer or surveyor of the municipality in which the work originates to do anything whatever, within the limits of the municipality into which the work is continued, beyond what is necessary to carry off the water brought down by the work done in the upper municipality, all the work done in the lower municipality must be regarded as being essential and necessary for the accomplishment of the purpose of the upper municipality, and the owners of property therein which is benefited thereby, the incidental benefit therefore, if any there be, to the roads and lots in the lower municipality should be very clearly established beyond all manner of doubt, to warrant the lands in the lower municipality being subjected, against the will of the owners, to contribute to the cost of a work wholly necessary for the benefit of the owners of the upper municipality. The assessment in such a case imposed by an officer of the upper municipality upon property situate in the lower municipality should be scrutinized with the utmost care and jealousy; and it is for this reason, I apprehend, that section 588 of ch. 174 R.S.O. has been amended by sec. 580 of 46th Vic. ch. 18, which came into force before the arbitration had in this case and applies to it, and enacts that:
The council of the municipality in which the deepening or drain- age is to be commenced shall serve the head of the municipality into which the same is to be continued (or whose lands or roads are benefited without the deepening or drainage being continued), with a copy of the report, plans, specifications, assessment and estimates of the engineer or surveyor aforesaid, and unless the same is appealed from as hereinafter provided it shall be binding on the council of such municipality.
For the purpose stated in the above section, and for all proceedings in this case subsequent thereto, this act, 46 Vic. ch. 18, which is an act in consolidation and amendment of the acts respecting municipal institutions, is the one which applies to this case before us, and I shall, therefore, henceforth refer to the sections of this act. The 581st section enacts that: (His Lordship read the section.)
This section, 570, is identical with section 529 of ch. 174 of the Revised Statutes of Ontario, already set out in full.
The 582nd section enacts that: (His Lordship read secs. 582 and 583.)
The only sections necessary to be referred to in this connection are sections 400 and 403 by the former of which it is enacted that: (The said sections were read by His Lordship.)
Now from these sections it is apparent that what were the matters referred to the arbitrators is to be determined by reference to the report, plans, specifications, assessment and estimates of the engineer, mentioned in the 580th section, and to the grounds of appeal stated in the notice of appeal mentioned in the 582nd section, all which documents taken together constitute the submission to arbitration; and the object of the arbitration, as appears by the 580th sec., is to determine whether or not the said report, plans, specifications, assessment and estimates of the engineer are to have binding effect to any, and if any to what, extent upon the council of the municipality into which the work is proposed to be continued, which, in the case before us, is the municipality of the township of Dover East. It becomes therefore necessary to refer to the said report and other documents mentioned in the 580th sec, and to the notice of appeal served on the township of Chatham, to determine what were the matters in difference between these two municipalities which were referred to the arbitrators in this case; but before doing so it will be necessary to draw attention to the condition of things as they existed before the making of the report, plans, &c., prepared by authority of the council of Chatham and served upon the council of Dover for the purpose of charging the latter township with a portion of the cost of a work deemed necessary to be constructed for the benefit of the owners of property in the township of Chatham.
The Little Bear Creek drain, the deepening of which is the work under consideration, was constructed several years ago along the marshes and low wet lands in Chatham, across the greater part of that township, until it reached Little Bear Creek where it flows close to the town line between Chatham and Dover East. The drain crossed the Prince Albert road, in the heart of the township, where the lands are very low and wet. This drain would have been quite ineffective for the purpose for which it was constructed without what is called the Prangley Tap, which was constructed by the county of Kent in the east end of the township of Chatham, and by which waters collecting in Camden and the eastern part of Chatham are drawn off to the river Sydenham. The township of Dover, as one of the townships of the county of Kent, contributed its share to the construction of this drain. Notwithstanding that the Prangley Tap carried off a quantity of water in the township of Chatham, which otherwise would have had no means of escape beyond the limits of the township except such as was afforded by Little Bear Creek drain and creek, the waters of the creek below the outlet of the drain overflowed its banks and damaged the lands in Dover. In order to drain the lands along the town line, between Chatham and Dover, and to relieve Bear Creek of a portion of the water so brought into it by Little Bear Creek drain, a drain, called the town line tap, was constructed within the limits of the township of Chatham close to the town line from Little Bear Creek drain, along the town line northerly. To the cost of this work the township of Dover contributed between $8,000 and $9,000; subsequently what is called the town line extension drain was constructed, in and by the township of Chatham, for the purpose of giving better outlet for Chatham waters and lessening the flow of water into Bear Creek, to which drain Dover contributed upwards of $1,000.
It was found, however, that the town line drain so constructed, with its extension, and Little Bear Creek drain and creek, were wholly insufficient to give effective drainage of the great mass of water collecting and lying in the heart of the Township of Chatham, and therefore that township, at its own expense, constructed a drain, called the Prince Albert Road Tap, along the Prince Albert road, to carry off a portion of the waters collected there and which the Little Bear Creek drain and creek, and the town line tap and extension, were incapable of carrying off So many small drains, however, have been constructed by individuals to drain their lots, and by the public to drain roads, which small drains are conducted into the Prince Albert Road Tap, and so low is the land at the Prince Albert road, and so great is the quantity of water which collects there, that the drain was quite unable, even with the assistance of Little Bear Creek drain, to carry it all off, and the Prince Albert road is much overflowed and dam- aged thereby. Besides the above drains, the township of Chatham has constructed other drains to carry off water collecting in Chatham, and which had no natural outlet except such as Bear Creek afforded, which creek was utterly incapable of carrying off all of such water. The municipality of the township of Dover, also at its sole expense, constructed in the westerly part of that township a drain called the Baldoon street drain, at the lower extremity of the work now proposed to be done, which falls into Bear Creek near its outlet.
Such was the state of things when Mr. W.G. McGeorge, an engineer and surveyor employed by the council of the municipality of the township of Chatham, made the following report, which is addressed to the reeve, deputy reeve and municipal council of Chatham township. (His Lordship read the report, which is set out in full in 5 O.R. 326.)
Subjoined are two schedules, the one for the township of Chatham the other for that of Dover; to the former it is unnecessary to refer, as it is with the schedule of the township of Dover that we are concerned, which, as it is not long, it will be convenient to set out in full, for the purpose of showing precisely what it is that Mr. McGeorge did, and what it is that his report purports to adjudicate upon; for it is in the nature of an adjudication binding upon the municipality unless appealed from, and in case of appeal the award made by the arbitrators to whom the appeal is referred is absolutely conclusive and binding upon all parties, subject always to the jurisdiction of the High Court of Justice, as we have seen by reference to the sections of the act above extracted.
The schedule in respect of the township of Dover is headed and is as follows:
Little Bear Creek drain west of Prince Albert road. Schedule of assessments on lands and roads in the township of Dover East, for benefit, for outlet, and for constructing a drain to carry off water brought down on lands to damage them:
Concession 10, Lot 24
$ 10 00
“ 11, “ 24
20 00
“ 12, “ 24
20 00
“ 13, “ 24
5 00
E. Baldoon st., Lot 21
5 00
“ “ 22
7 00
“ “ 23
7 00
“ “ 24
7 00
“ “ 25
7 00
“ “ 26
7 00
“ “ 27
7 00
“ “ 28
7 00
“ “ 29
25 00
“ “ 30
25 00
“ “ 31
25 00
“ “ 32
25 00
W. Baldoon st., “ 21
5 00
“ “ 22
5 00
“ “ 23
5 00
“ “ 24
5 00
“ “ 25
5 00
“ “ 26
5 00
“ “ 27
5 00
“ “ 28
5 00
“ “ 29
5 00
“ “ 30
5 00
“ “ 31
5 00
“ “ 32
15 00
Road between concession 10 and 11 from town line to Baldoon Street
50 00
Road between concession 11 and 12 from town line to Baldoon Street
50 00
Road between concession 12 and 13 from town line to Baldoon Street
50 00
Baldoon street from lot 21 to lot 31, inclusive
50 00
Half assessment on town line of Chatham and Dover from 6th to 15th concessions, inclusive.
1,000 00
This schedule being, as it is, made part of the report shows that all that the engineer did, as indeed all that he had to do as far as the township of Dover was con- cerned, was to assess the above several lots and roads with the above several sums as for benefit to be conferred upon them respectively by deepening the Little Bear Creek in the township of Dover, which deepening was absolutely necessary to carry down the great flow of additional water brought into it from the township of Chatham, by the deepening of Little Bear Creek drain, in that township. The profile annexed to the report, and also made part of it, shows that this drain was deepened upwards of three feet at the Prince Albert road to carry off water from the Prince Albert road drain and that this depth was continued with a fall of three feet to the town line tap where the bottom of Little Bear Creek drain, when deepened, will be between three and four feet below the bottom of the town line tap; from this point the deepening is to be in Little Bear Creek itself, which, at present, has a fall of about two feet from the town line to Baldoon street drain. The Little Bear Creek, when deepened, is to have its bed lowered to the level of the bottom of the Little Bear Creek drain, at the town line tap, which depth is to be maintained on a dead level to Baldoon street drain, so that instead of the natural fall which the creek now has, from the town line to Baldoon street drain, the current and flow of the waters in the creek, between these points, will be created and maintained solely by the force of the extra water, brought in at Albert road, coming down the Little Bear Creek drain on the fall of three feet given to it, from that point to the town line tap, and this tap will be of no use until the waters in Little Bear Creek drain rise high enough to enter the town line tap. The profile has at its foot, at station 239, the following entry which must also be taken as part of the report:
Continue 300 rods further clearing bars and timber.
Now, against this report and the assessment therein contained, and against all proceedings of the council of the municipality of the township of Chatham there upon, the municipality of Dover, in accordance with the above provisions of the statute in that behalf, appeals by a notice of appeal, in which the grounds of appeal are stated as follows:
To James Clancey Esquire, Reeve of the Township of Chatham and North Gore:—
Take notice that the council of the municipality of the township of Dover East and West do appeal against the pretended report of W.G. McGeorge, provincial land surveyor and engineer for Chatham aforesaid, for the deepening of Little Bear Creek drain, west from Prince Albert road, to the Chatham and Dover town line, and for the extension thereof into the township of Dover East beyond Baldoon street, and against the assessment made by the said McGeorge as mentioned in such report, and against all proceedings taken by the council of Chatham aforesaid thereon.
And the grounds for such appeal are: (His Lordship read the grounds of appeal as set out in 5 O.R. 329.)
The notice then notifies Chatham of the appointment by Dover of an arbitrator to act on behalf of that township and of the name of such arbitrator, and calls upon the council of Chatham to appoint an arbitrator to act upon behalf of that township. An arbitrator having been appointed by Chatham in pursuance of this notice, and a third arbitrator having been also duly appointed, according to law, the matter in difference, as appearing by reference to the reports and other documents appealed against, and to the grounds of appeal as stated in the notice of appeal, whatever those matters were, became referred to the three arbitrators so appointed whose duty it was finally to adjudicate thereon.
The material question therefore is: What were the matters so referred?
Now, it cannot, I think, admit of any doubt or question that the municipality of Chatham had no power whatever, by their engineer or otherwise, to carry any work originating in Chatham, and necessary for the drainage of Chatham, into the township of Dover, or to impose any burthen by way of assessment upon any lands or roads in Dover to reimburse Chatham for, or to pay, the cost of any part of such work, unless a petition, signed by a majority of the owners of property in the township of Chatham to be benefited by the proposed work, should be first presented to the council of the municipality praying that the proposed work should be undertaken and executed under the provisions of the statute. The presentation of such a petition so signed is a condition precedent to the acquisition by the municipality of the township of Chatham of any jurisdiction whatever over the township of Dover or over any lands situate therein. That no such petition ever was presented as would give to Chatham the jurisdiction over Dover in this case having been made one of the grounds of appeal against the validity of Mr. McGeorge’s report, I cannot see upon what ground it can be held that such a matter was not one which should have been enquired into and adjudicated upon by the arbitrators. If none such had been presented the jurisdiction never attached, and in such case the report of Mr. McGeorge had no validity or binding effect whatever, and the appeal, as it appears to me, must have succeeded upon that ground alone. Now no express decision of the arbitrators has been given upon this point; the objection was taken by the notice of appeal and appears never to have been abandoned; it has been urged before the High Court of Justice for Ontario, on the motion to set aside the award, and has been repeated before us.
The onus of proving that the jurisdiction had attached lies plainly upon the municipality which assumes to exercise the jurisdiction, but no evidence appears to have been offered upon the point. The recital in the by-law of the township of Chatham, which was produced but with which the township of Dover had nothing to do, of the existence of a fact necessary to exist before the jurisdiction could attach, cannot have the effect of giving the jurisdiction.
The point was made a ground of objection to the award of the arbitrators upon the motion to set it aside made in the High Court of Justice for Ontario, and it is still pressed before us by the respondents as a reason against this appeal, and upon this ground, if on no other, I cannot see why the appeal of the township of Dover against Mr. McGeorge’s report should not have prevailed.
But assuming the jurisdiction to have attached, then it became the duty of the engineer employed to report upon the work to set forth in his report a statement of all the several lots and roads in the township of Dover, if any there were, which in his opinion would be benefited by the completion of the proposed work, and to assess and charge each of such lots and roads with the amount of such benefit to be received by each. If the work should be for the benefit of Chatham alone, and should confer no benefit upon lands in Dover, no lands in Dover should be assessed; only such as should be benefited should be assessed, and each lot, separately, only with the amount of the benefit it should receive. If lots should be benefited, but roads not, then the lots only should be assessed, each to the amount of its own benefit, and the roads should not be assessed, or if roads alone should be benefited, then they alone should be assessed to the amount of such benefit, and the lots should not be assessed. Now what Mr. McGeorge by his report did, was to set out in a schedule, which was made part of his report, all the lands and roads in Dover which, in his opinion, would be benefited by the work, and to assess and charge each of such lots and roads with the particular amount of benefit which, in his opinion, each would receive. The township of Dover, in their notice of appeal, object to this part of his report upon the that the several lots and roads so assessed and charged with such burthen will not derive from the completion of the work a benefit to the amounts respectively assessed upon them, nor in fact any benefit at all, but that, on the contrary, the work will do them injury. This is the substantial ground of appeal upon this point, upon which, in my opinion, it was the duty of the arbitrators to have adjudicated. I cannot, I confess, comprehend how there can be any doubt upon this point The statute requires the engineer to assess and charge every lot and road, if any there be, which in his opinion is benefited, with the amount of such benefit, and to make the assessment so made by him part of his report. It further makes the report, including his assessments, binding if there be no appeal, but if there be an appeal, then the statute creates a special court of arbitrators to whom the whole report, and the matters in difference in relation thereto, and to its contents, which are stated in the notice of appeal, as grounds of appeal are referred; and it makes the arbitrators’ award, on such matters so referred, to be conclusively binding upon all parties, which term “all parties,” as here used, in my opinion, comprehends the owners of the lands assessed, as is apparent from section 400 of 46 Vict. ch. 18, which enacts that in cases of this nature one copy of the award shall be registered in the registry office of the county or division in which the lands affected are situate. For what purpose can this be supposed to be done except to perfect most effectually the charge of the several sums assessed upon the lands charged, and to give notice thereof to all purchasers of such lands or any of them. What the foundation is for the idea that, in a case like the present, there is a bulk sum charged by the engineer’s report the propriety of which alone is what is submitted to the arbitrators, and that the manner in which such bulk sum is apportioned, and what are the lots among which it should be apportioned, and in what manner, are matters with which the arbitrators have nothing to do, but are reserved for after consideration by a Court of Revision, I am unable to see. There is nothing in the statute expressed to that effect, and no such thing can be implied from what is expressed. Such a construction would defeat what, in my opinion, appears to be the plain intention of the legislature, namely, that the award of the arbitrators should be conclusive and binding upon all parties affected by the assessment, and that by registering the award the lands so assessed should become irrevocably charged with the amount assessed against each. The by-law thereafter to be passed by the council of the municipality of Dover is merely for the purpose of levying by yearly rates, in the same manner and at the same time as other rates are levied, the amounts already effectually charged upon the lands assessed. Now that there is any bulk sum, in the report appealed from, which is assessed upon the township of Dover as such, that is to say, in any other sense than that the aggregate of the several sums charged upon the several lots and roads mentioned in the report of necessity makes a sum total or, if the term be liked better, a bulk sum is, in my opinion, quite a mistake. By adding up the several sums charged upon the several lots and roads assessed, we find, no doubt, that they amount to $1,479, which sum of necessity does bear a proportion to the amount of the whole cost of the work as estimated at $10,196 which proportion is well expressed, it is true, by the fraction 1479/10196, and thus the proportion which Mr. McGeorge’s report finds that the township of Dover should contribute to the proposed work can be ascer- tained, and this, indeed, is the only way in which such proportion can be ascertained consistently with the provisions of the statute, which is to charge severally the lands in Dover with the particular amounts by which they shall be respectively benefited.
If there be error in the items, or any of the items which compose the sum total, that sum total must be erroneous to the extent of such error in the particular items. Whether, therefore, there be any, and if any, what, error in the particular items, or in any and which of them, is the material question, and it requires adjudition upon each particular item.
The sum of $1,479, being arrived at in no other way than by addition of the several items charged upon the several lots and roads, is nothing more than a result of what Mr. McGeorge shows by his report that he did, which was, as he was required to do, to assess the particular lots and roads with the particular sums by which he says that, in his opinion, they will respectively be benefited by the work. That was the only thing done, and which his report represents as having been done, by him, and it is against the things so represented as having been done that the appeal was taken. If it should appear that all, or any, of the lots and roads assessed should not have been assessed for the reason that it does not appear that they would be benefited by the proposed work to the respective sums assessed upon them severally, or to any amount, the assessment would be bad as regards every lot and road so wrongfully or excessively assessed; the correctness of the several assessments was, in my opinion, one of the matters which was submitted to the arbitrators by the express terms of the notice of appeal; that, assuming the jurisdiction to have attached, was the very point upon which the arbitrators were called upon to adjudicate, and upon which they should have made their award so as to make it, as it is by the statute intended to be, conclusive and binding upon all parties. Whatever might be the difficulties and delay attending the proceedings which might be necessary to be taken for the purpose, that, as it appears to me, was their clear duty. There is no such thing mentioned in the report, nor, indeed, could there be, as a bulk sum, which, having been first ascertained in some unexplained or unsuggested manner, has thereafter to be apportioned among some lots and roads without any diminution of the bulk sum. The only bulk sum being the sum total of the assessments charged on the several lots and roads added together, that sum total must vary accordingly as it should be found that the assessments charged upon the several roads were properly or improperly charged.
If any of those assessments should be removed for the reason that the lots or roads on which they were charged would not be benefited by the proposed work the sum total must of necessity be diminished accordingly. If the lots would not be benefited, but the roads would be, the assessment charged upon the lots must be removed; so if the roads would not be benefited, but the lots would be, the assessments charged upon the roads must be removed; and in neither case could the amount deducted in respect of the one be charged upon the other, either in justice or common sense or by reason of anything expressed in the act, which, by providing a court of arbitration to adjudicate upon the matters in difference, plainly intended, as I think, that complete justice to all parties concerned should be finally administered by that court.
Now the award, which was signed by two only of the arbitrators, after reciting the engineer’s report and the assessments made by him upon the lands and roads in Dover mentioned in his report, and the appeal therefrom, and that the arbitrators had considered all the evidence offered before them, adjudicated as follows:—
First—We order, award and determine that the said assessment upon lands and road in the township of Dover East and West, and the town line between the said township of Dover East and West, and the township of Chatham and North Gore, by the said George McGeorge, be sustained and confirmed, as the said lands and roads in the said township of Dover East and West will be greatly benefited and improved by the said work, and also the said town line road between the said municipalities of Dover and Chatham, and that the said appeal be and the said is hereby dismissed, and that the several grounds mentioned in the notice of appeal have not been sustained.
Now that this award purports to be a full, final and complete adjudication upon every ground of appeal stated in the notice of appeal, cannot, I think, admit of a doubt. It determines, in effect, that the event which alone could give any jurisdiction to the township of Chatham to affect the township of Dover had occurred. It determines that every one of the assessments of lots and roads in the township of Dover, made by Mr. McGeorge, was just and proper, and that each one of those lots and roads would be benefited by the proposed work and to the amount charged upon it. In form it is perfect as a conclusive award which is by the act made binding upon all parties, subject only to being interfered with by the High Court of Justice to the jurisdiction of which court it was subjected; and I cannot doubt (if not interfered with by the High Court of Justice) that, if and when registered in the registry office of the county where the lands lie, it would irrevocably charge every one of lots and roads so assessed with the precise amount so assessed upon them respectively. The duty of the municipal council of the township of Dover to pass a by-law for levying these amounts by yearly rates within the period allowed by the statute for that purpose was simply ministerial, and no court of Revision, or other court, could ever review such assess- ments so confirmed. The registration of the award would irrevocably bind the several lands with the respective amounts so charged upon them respectively, subject always to the jurisdiction of the High Court of Justice over the award. But that the arbitrators who signed the award never intended it to have the effect which, from its terms, in my opinion it clearly has, appears from a minute of proceedings before the arbitrators which, with the evidence taken before them, has been returned to the High Court of Justice for Ontario for the purpose of being used upon the motion made in that court by the township of Dover that the award should be set aside, for, among other reasons, the same reasons as had been stated in the notice of appeal to the arbitrators, and because the said findings and award of the arbitrators are contrary to law and evidence and the weight of evidence.
From this minute of proceedings it appears that on the 18th May, 1883, all the arbitrators met to decide as to the award, when the following entry is made.
The arbitrators have considered it best to decide against the legal objections, and to decide against Mr. Wilson’s contention, (Mr. Wilson was counsel for Dover) leaving him to bring them before the courts if he thinks proper.
The arbitrators all agree that Dover will be benefited by the work, Mr. Fleck holding that, on the evidence offered, five hundred dollars should be taken off the assessment on the town line road, the other arbitrators holding that lands and roads in the township of Dover are benefited to more than the amount of assessment and that it should be confirmed, but one of the arbitrators, Mr. Douglas, holding that while the bulk sum assessed is not too great the lands and roads and parts thereof so assessed should be varied, which it is competent for the Court of Revision to do. The arbitrators thereupon agree to confirm the assessment as above.
Mr. Fleck declines to sign the award.
Arbitrators now adjourn till 4 p.m. this day to sign the award at same place.
I have already expressed my opinion to be that this view of Mr. Douglas, as to there being a bulk sum which could be correct although the items of which it is composed, or some of them, should be removed, is erroneous. The error, I think, consists in the application of sections of the act, which relate solely to a work constructed wholly at the cost of the municipality in which it is both begun and completed, to the case of lands in a township into which a work of an adjoining municipality is continued by and for the benefit of the municipality constructing the work, to which case the sections do not apply, and with respect to which special provision is made by other sections of the act. In the former case there is a bulk sum first ascertained, namely, the cost of the whole work, which afterwards is apportioned (without any diminution of the bulk sum, which of course cannot be diminished being the amount of the cost of the whole work,) in such a manner as may appear most fair and just, among certain lots and roads, even though the proportion of the whole cost which the several lots and roads would have to pay might be greater than any actual benefit that could be said to be conferred upon them respectively by the work. In the present case, where a work begun in and for the benefit of Chatham is continued into Dover, there is no bulk sum in so far as Dover is concerned as to it, the lands therein cannot be subjected to any charge except for the actual benefit each lot and road shall be considered to receive. There is no bulk sum to be apportioned among any lands in Dover. The only bulk sum in the case at all is the cost of the whole work, which must be borne by Chatham, except in so far as particular lots and roads, if any there be in Dover, can be said to derive benefit from the work, and these lots and roads can only be charged with a sum representing the actual benefit which can be fairly attributed to the work irrespective of any bulk sum.
For the reasons already given, I am of opinion that the Court of Revision has not, and cannot have, anything to do with a case of this kind. The Court of Arbitration is the final court (subject only to the jurisdiction of the High Court of Justice) to adjudicate upon all matters in difference arising in a case of this kind.
The sec. 581 of 46 Vic. ch. 18, which provides that the municipality into which a work is continued by an adjoining municipality shall pass a by-law to levy the amounts legally assessed upon lands in the lower township, and which says that such by-law shall be passed in like manner, and with such other provisions, as would have been proper if the majority of the owners of the land to be taxed had petitioned for such work, as provided in sec. 570, does not say that the by-law so passed shall be subject to the provisions contained in sec. 570 and its sub-sections, but that it shall be passed with (that is in my opinion shall contain) such provisions as a by-law petitioned for in the manner provided for in sec. 570; that is to say, provisions for borrowing on debentures the required sum and for levying the sums charged on the several lots by special yearly rates on the respective lots, and for raising the amount charged on roads by a general assessment on the ratepayers of the municipality.
To subject assessments which, on appeal, have been submitted to the decision of arbitrators to be again revised by a court of revision would, in my opinion, be quite inconsistent with the plain intent of the act, that the award should be conclusively binding upon all parties, subject only to revision by the High Court of Justice, and with the provision that the award shall be registered in the registry office of the county in which the lands affected are situate. In my opinion, therefore, the arbiter ors erred in not adjudicating in fact upon the merits of the appeal against the several assessments on the lots and roads assessed, as by their award they have in terms done, and that for this error, plainly appearing upon their minutes, the award should have been set aside.
There remains to be considered the main point insisted upon, both before the arbitrators and against the award, namely, that the evidence failed to establish that the proposed work would confer any benefit upon the lots and roads assessed, and that on the contrary it established, as well as could be established in advance of the construction of the work, that it would inflict injury upon some of them.
The learned Chief Justice of the Court of Appeal for Ontario, concurring with certain expressions in the judgment of the learned Chief Justice of the Divisional Court before whom the motion to set aside the award as against law and evidence and the weight of evidence was made, says upon this point:
On the general merits of the award I share with the learned Chief Justice his difficulty in seeing, on the evidence, how Dover is to be benefited by the proposed work, but I share also his reluctance to interfere, on that ground alone, with the decision of the arbitrators, the more so as the dissenting arbitrator was willing to hold Dover benefited in a lesser sum than awarded.
If the question was one depending upon the credibility of witnesses, or upon a nice estimate of contradictory evidence, I quite concur that the judgment of arbitrators upon a mere question of fact should not be interfered with. But here no question of the credibility of any of the witnesses arises, and there appears to be very little, if any, contradiction in the evidence, all of which is brought before us. Difference of opinion there may be, but in the facts upon which opinions should be formed there does not appear to be any material difference. Here the great mass of the evidence certainly appears to be against there being any benefit conferred, and if the principle upon which the engineer says that he made the assessments, and formed his opinion that the lots and roads assessed would be benefited, be, as is insisted by the respondents, erroneous, a court of appeal, on a motion to set aside an award which confirms the assessments, is bound to exercise its independent judgment upon the evidence.
It is not questioned that all the work proposed to be done is absolutely necessary to carry off the extra water brought down from Chatham. This being so, the evidence that benefit will be conferred upon the lots and roads assessed in Dover to justify their being charged with a portion of the cost of a work wholly necessary for the accomplishment of the purposes of Chatham ought, in my mind, to be absolutely free from doubt, for, prima facie, in such a case the burthen of the cost of the whole work ought to be borne by the municipality which invades the territory of another in order to accomplish purposes of its own.
It might give rise to a serious question hereafter if lands in Dover should now, before the construction of the work, be assessed as for benefit anticipated to be conferred upon them by the work, and it should after its construction turn out that injury and not benefit, as is most strenuously and for very strong reasons insisted by many of the witnesses, would be the actual result, whether the owners of the land so assessed might not be deprived of their right to compensation, under sec. 591 of 46 Vict. ch. 18, for the injury so done to their property.
Turning then to the engineer’s report, we find him there saying that the charges made upon the lots and roads in Dover assessed by him are, “for benefit,” “for outlet” and “for constructing a drain to carry off water brought down on lands to damage them.”
Now as to this latter item of service done to the lots and roads assessed in Dover, it is to be observed that the only water brought down on lands in Dover, and which certainly will damage some lands in Dover unless effectually carried off, will be the water brought down by the deepened drain in Chatham, which water Chatham is bound to carry off effectually so as not to damage any lands in Dover or, in default, to recompense the injured parties under sec. 591 of 46 Vict. ch. 18, as well as at common law, so that this item can form no just ground for charging lands in Dover with any part of the cost of the work. Then as to item “for outlet.” What is meant by this item is difficult to understand, for the only outlet which the proposed work will give to any water will be outlet for the extra waters brought into Dover by the deepened drain in Chatham, which waters by the deepening of Bear Creek in Dover will find their outlet through that stream eventually to Lake St. Clair. The deepening Bear Creek in Dover for this purpose gives no outlet to Dover’s waters that Dover had not before. There can therefore be no justification for the charge imposed upon the lots and roads assessed in Dover under the item “for outlet.”
Then as to the item “for benefit.”
The engineer himself, in his evidence before the arbitrators, says:
The drain is necessary to carry off the water brought down to the Prince Albert road and district. There is very great need to carry off the water from the Prince Albert road (in Chatham). I don’t think any smaller drain than I have proposed would be sufficient.
Again:
It is for outlet that I assess the roads south of the prop