The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to issue permission to enclose the supporting columns of an existing building on part of Lot 25 in Concession I in the Township of Whitby, now in the Town of Whitby in the Regional Municipality of Durham, municipally known as 528 Victoria Street East.
Central Lake Ontario Conservation Authority
G.C.S. Morison, for the appellant.
R. I. R. Winter, Q.C., for the respondent.
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to enclose the supporting columns of an existing building on part of Lot 25 in Concession 1 in the Township of Whitby, now in the Town of Whitby, municipally known as 528 Victoria Street East. By Ontario Regulation 364/82 the power and duty of hearing and determining such appeals were assigned to the Mining and Lands Commissioner. The evidence in the appeal was heard in Toronto on October 14, 1982. The argument was subsequently heard on November 1, 1982.
The appellant and Susi Lukaschus acquired the subject lands in August, 1976. In 1978 the appellant applied to the respondent to enlarge the existing 1,500 square foot concrete block building to approximately 3,000 square feet. This application was modified so that a second storey was erected on the building having 3,000 square feet in area with the overhanging portions being supported by steel pillars.
The enlargement was made and subsequently in the early part of 1982 the appellant closed in the lower part of the building by inserting six inch beams in the lower parts of the steel columns and sheets of glass affixed with wood strips on either side above the beams. One large loading door was constructed in the wall measuring nine feet by ten feet and three other doors measured three feet by seven feet.
The building was originally used as a workshop. The original area continues to be used. The second floor is also used as a workshop and the area enclosed has been used as a machine room. Prior to its enclosure it was used as open storage for lumber, timber and scraps from the operations.
The appellant employed ten persons in his shop and the enclosure enabled him to expand his staff to twenty persons who work on a five-day week earning a payroll of $100,000 a year. Evidence was produced on behalf of the appellant indicating that he receives constant requests for employment from prospective employees and a news release from the federal government was filed indicating a serious unemployment situation in the area.
The appellant gave evidence that it would cost $250,000 to relocate the existing business and that he could not anticipate raising a substantial part of such a sum through the sale of the subject lands.
The appellant suggested that in the event of a regional flood the walls could be removed very quickly, the employees could move up the stairs to the upper storey which is above the regional flood elevation and the hydro service could be cut off in seconds.
The witness indicated that the Pringle Creek, in the flood plain of which the subject lands are situate, is six inches deep at the present time and has a width of approximately eight feet. The creek has steep banks measuring sixteen feet in height and the experience of the appellant was that even in spring runoffs the flood was contained within the banks and rose no higher than three feet.
The appellant indicated that he was prepared to accept the risk of damage to his existing building and would execute a save harmless agreement convenanting to indemnify the respondent and other public bodies and to require future purchasers to enter into a similar convenant.
The appellant gave evidence of the apparent policy of the respondent which it was alleged should justify the issue of the permission sought by referring to a number of properties.
Firstly, he referred to his application in respect of an adjacent property involving residential premises where permission was granted. In this regard it was pointed out that the elevation of the property was one foot lower than the subject lands and the building would be occupied on a full time basis for residential purposes.
Secondly, reference was made to a property two lots to the west of the subject lands on which there is situate a number of forty-five gallon drums which have been on that premises for a period in excess of one year. The witness was unable to advise of the content of the drums.
Thirdly, reference was made to a property occupied by Superior Propane Gas lying to the southwest of the subject lands. A number of gas tanks are situate on a covered platform.
Fourthly, reference was made to a building lying northeasterly of the subject lands on the north side of Highway 401. This property was referred to either as the B.M.W. Building or the Pedlars Building. It was submitted that this building was constructed after 1976 on the same elevation as the subject lands. In addition to the building it was pointed out that some hundred cars are parked on the parking lot at this building.
On cross-examination the appellant admitted that he had not drawn the barrels to the attention of the respondent although he had on one occasion referred to the authority the matter of the placing of fill which he felt might have assisted his case. It was drawn out that the permission granted in respect of the property at 526 Victoria Street East involved an existing building which was not being enlarged, the adjustment of the location of the building to conform with municipal setback laws, the flood proofing of the building to the elevation of the one hundred year storm and the entry into an indemnity agreement whereunder the respondent would be saved harmless from any claims.
The flood plain mapping which was filed as Exhibit 1 shows the elevation of the regional flood to be 279.4 feet with the result that the subject lands would be covered by 9.4 feet of water in the event of a regional storm.
The evidence submitted on behalf of the respondent was provided by William H. Campbell, the general manager and the secretary-treasurer of the respondent who is a civil engineer, and has had considerable experience with water management.
The witness outlined that there has been considerable evolution of the policy of the respondent. In the beginning the respondent adopted a fairly restrictive policy. However, there are fourteen creeks in the area under the jurisdiction of the respondent and as flood plain studies and flood control management programs were developed the more restrictive policy was modified. As a result of remedial works the standard has been relaxed in the flood plain of the Oshawa and Goodman Creeks. In other areas the policy has been stiffened. In the Pringle Creek watershed the degree of flooding is increased by reason of the railway embankment south or downstream of the subject lands through which there is a relatively small culvert. A preliminary study of the creek has been authorized and a report received. The report has been submitted to the Town of Whitby and the position of the municipality has not been received. The report recommends reduction of some flood lines through the alleviation of some obstruction but, if implemented, would not be of assistance to the subject lands. Among the suggestions of the report is the construction of berms but these do not appear to be helpful. The cost of providing an overpass and underpass on the railroad was reviewed in 1977 and at that time estimated at 4.2 million dollars. Consequently, the policy of the respondent is to apply a firm policy in the watershed of the Pringle Creek.
With reference to the B.M.W. Building or the Pedlars Building the witness has been unable to find any record of an application for the construction of the buildings in the files. The evidence indicates that the building probably was not in existence at the time the regulation was implemented as the building does not show in the flood plain mapping. There is some doubt as to the location of the building with reference to the location of the maximum elevation of the regional flood and having regard to the doubt as to the location of the building in relation to that elevation and the absence of an application to construct a building, if in fact it were constructed during the time that the regulation of the respondent has been in effect, this tribunal cannot consider this building as being of significant weight in establishing what the policy of the respondent is said to be or actually is. The witness also pointed out that the question of whether cars constitute fill and can fall within the regulation prohibiting the placing of fill has been considered from a legal point of view and the opinion given is that automobiles do not constitute fill.
With reference to the fire hall of the City of Oshawa, the witness indicated that the building is situate within the flood plain of the Oshawa Creek which, with the modified policy, complied with the policy of the respondent in that while the building was within the regional flood plain it was above the elevation of the hundred year storm and taking into consideration the need for a fire hall in the downtown area of Oshawa and particularly in a centralized location the permit was granted. With reference to the Ontario Motor Sales Office the witness indicated that the permit issued prior to his time of appointment and under existing policy such a permit would not be recommended by the staff of the authority today. With reference to the Dominion Store case it was pointed out that the construction of the building commenced prior to the making of the regulation and that the conditional permit issued as a result of prolonged litigation and negotiation. Reference was made to the erection of a pedestrian bridge over the Oshawa Creek. The witness indicated that the municipality failed to obtain a permit for the construction of the bridge. Reference was also made to a school for crippled children in the flood plain of the Harmony Creek. Approval for an addition was made in an area that was subject to seventeen feet of flooding in a regional storm. However, the respondent was required to reconsider its position and the land was acquired by the respondent and no work was done under the permit. Reference was made to a parking lot of the Ministry of Revenue in the downtown core on the east bank of the Oshawa Creek and the evidence of the witness was that the construction of the parking lot fell within the special conditions applicable to the Oshawa Creek.
The witness also referred to the policy of renovations or restorations of existing buildings in the flood plain. The evidence here related more to the policy of the respondent in respect of the property of the appellant in respect of which approval was granted and although the respondent has a policy of permitting fairly liberal renovations such a policy would not appear to be applicable to the present application as the proposal is a new situation.
On cross-examination the witness indicated that the staff reports of the employees of the respondent do not refer to zoning matters and often the zoning may not be known to the respondent in dealing with applications. When asked the reason for the strict policy of the respondent the witness indicated that the respondent was concerned with the damage to human beings and to buildings in addition to such matters as reduction of storage capacity and the constriction of the flow.
When cross-examined in respect of the Pringle Creek study, the witness was asked whether there was any storm water management program for the creek and the witness replied that no program had been adopted. He also admitted that there has been some exception to the general policy applied in the watershed of the Pringle Creek, two of which were applications of the appellant.
When cross-examined as to the reason for the application of a different policy in respect of Pringle Creek than the policy applied in the Oshawa Creek the witness indicated that the basic reason for the difference is that the flood plain of the Oshawa Creek is broad and ill-defined and the situation in the Pringle Creek is different.
On further cross-examination the witness confirmed that the flood plain was deeper in the Pringle Creek and the flooded areas are much closer to the creek although he did admit that in some areas there was a spillout of water in a regional flood flowing to the east, particularly in the vicinity of Brock Street.
When cross-examined with reference to the evidence of the appellant regarding spring flows in the creek the witness agreed that the evidence was accurate in respect of a normal spring situation. However, in characterizing the ability of the creek to retain floods the witness gave evidence that the banks of the creek would only accommodate a storm not in excess of the twenty-five year storm. The witness also indicated that the flows of a regional storm would build up gradually although he was not able to provide the tribunal with any evidence as to when the creek would overflow the defined bank. Reference was made to the length and size of the watershed and the witness indicated there would be a peaking effect at the time the maximum flood elevation was achieved. The witness also admitted that there was no historical evidence that regional storm had occurred at the particular location. When asked whether the calculation of the flood line was a matter of art or science the witness indicated that in his opinion there was a margin of error in the establishment of the maximum elevation. The witness also agreed that the flood mapping did not enjoy a legislative base but was prepared from engineering principles based on the legal standard set in the regulation.
When cross-examined in respect of the loss of storage capacity the witness indicated that this could be calculated by multiplying the area of the building by the height of the regional flood and admitted that, by itself, such was a negligible consideration. With reference to constriction the witness indicated that the thirty foot extension of the older building reduced the channel capacity by a distance of thirty feet. When asked if the proposal would have any effect on the ability of the creek to drain the area the witness stated that in his opinion there would be no measurable effect. The witness also indicated that he was not aware of the contents of the barrels but did indicate that if they floated downstream they could obstruct a culvert in the same manner as scrap wood which had been piled in the outer part of the building of the appellant as it was first constructed. The witness admitted that the closing in of the building as originally approved might reduce the problem of floating debris but indicated that it would not resolve any of the matters that the respondent has to consider in dealing with its responsibility.
The witness was further cross-examined as to steps taken in respect of flood control on the Pringle Creek. The witness indicated that the regional flood mapping had been prepared and subsequent studies initiated. The approach of the respondent was to reduce upstream development to reduce increases in the flow and depth of the regional flood. The witness indicated that the respondent had not taken any active interest in respect of matters of pollution and left such matters to the Ministry of the Environment. The witness also indicated that there was no issue of conservation of land in the present application.
Reference was also made to a case involving a restaurant in which the respondent had granted a permit. This was again a case of renovation of an existing building which was situate in the Oshawa Creek. The witness admitted that the respondent had a policy of recognizing existing investment and that such policy was applicable to the Pringle Creek area as well as to the Oshawa Creek area. The witness also confirmed that the respondent continues to use save harmless agreements where exceptions to the general prohibition of the regulation are made.
Counsel for the appellant submitted that the social benefits of the enlargement of the premises warranted the issue of permission. Employment of ten persons, increased municipal, provincial and federal taxation and the incremental benefits to the economy were submitted as matters of economic good that should be treated as off setting the concerns respecting the construction of structures in the flood plain. In this regard counsel referred to the decision of R.G. Wright v. The Central Lake Ontario Conservation Authority, a decision of this tribunal dated May 27, 1975. With respect to an argument that the permitted continuance of the occupation of the flood plain by Dominion Stores justified the granting of permission for other landowners, this tribunal said at pp. 6 and 7 of the decision,
Turning to the second point, it is apparent to this tribunal that the respondent is applying the legal procedures available to it to require the shopping plaza in question to conform with the law as established by the regulation. It might, and I say might, have been successfully argued that if the respondent had condoned the breach of the regulation by a large industrial or commercial firm, that consideration should be given to a small residential extension. However, there are differences between the nature of the use of these two types of buildings and the benefits to the local economy and an appellant could in such circumstances be faced with the conclusion that two wrongs do not make a right.
In passing it may be noted that the point is raised as an arguable point and did not form any basis of the conclusion in that case.
It was secondly argued that the evidence of the witness, Campbell, indicated that there is some measure of a safety factor in the definition of a regional storm and it was submitted that in the absence of any legislative acceptance of the definition the tribunal should create an exception based on economic benefit.
Thirdly, counsel for the appellant attempted to question the validity of the elevation of the regional flood. In so doing he referred to an error in the staff report of the respondent which was based on incorrect information filed by the appellant. Reference was also made to elevations on the plan and an area of spill and it was submitted that the elevation shown in the flood plain mapping could not be reached in any circumstances. It was submitted that the case of Drewers' Warehousing Company Limited v. Grand River Conservation Authority, dated June 14, 1978 was authority for the tribunal to examine the flood plain mapping and conclude that the elevations were incorrect.
Fourthly, it was submitted that the failure of the appellant to obtain a building permit was not relevant to this application.
Fifthly, counsel referred to the case of Re Hopedale Developments Ltd. and Town of Oakville  1 O.R. 259 as setting down the standard of an administrative board dealing with a matter before it that is heard de novo and it was submitted that the thrust of this case is that such an administrative tribunal while it may have and announce general policies which may be used as guidelines such announcements or policies should not fetter its discretion that must be exercised in the particular case.
Sixthly, it was submitted that each case should be decided on its own merits.
Seventhly, as a precedent for establishing the issue of permission on a nunc pro tunc basis, counse1 referred to the case of Mobile Mix Concrete Products (1971) Ltd. v. Upper Thames River Conservation Authority dated March 24, 1977. Counsel very fairly pointed out the significant aspect of this case that the changes made by the appellant constituted a reduction of the interference with the control of flooding.
Eighthly, it was said that under the recently enacted federal Charter of Rights it is necessary where there is any interference with private rights for there to be a legislative codification of the public interest justifying the legislation.
Ninthly, counsel submitted that there was no basis in law or fact for the four reasons given by the respondent in rejecting the appeal and in the absence of such basis the decision should be made on some basis of common sense.
The preliminary thrust of this argument related to the issue of appropriate remedy or tribunal and on the Bench taking issue with the submission it was agreed by counsel that the submission was more appropriate to an application for judicial review or for use as a defence in the prosecution that is pending. It was submitted that in the alternative, the conclusions of fact to be drawn in respect of each reason should be that the position taken was disproven by the evidence and accordingly the appeal should be allowed on the ground that the specified reasons were not established on appeal.
With reference to the first reason, i.e., safety of people using the area, it was submitted that there would be no danger to human life in that occupants could escape if warned in time or could take refuge on the second floor. It was pointed out that the use of the building was industrial and no residential or sleeping quarters are involved. It was submitted that no handicapped persons would be on the premises. With reference to Campbell that there would be danger to rescue workers who might be required to rescue three additional persons, it was submitted that this is a negligible number of people compared with the thousands who would be in the flood plain in connection with other properties. It was submitted that the type of building was such that there would be no increased danger to the occupants who would have been equally exposed under the permission issued in 1978 as they would be in the enclosed areas.
With reference to the second reason, i.e. damage to the enlarged premises, it was submitted that it should be found that if the doors could be opened there would only be minimal damage to the building by way of staining, for which the appellant would be agreeable to sign an indemnity agreement.
With reference to the third reason, i.e. inconsistancy with previous decisions of the authority in respect of the site, it was submitted, that if the previous decision were wrong, the previous decision should not be considered as a precedent on the basis that two wrongs do not make a right.
With reference to the fourth reason, i.e. unacceptable precedent, it was submitted that the reliance on the issue of precedent was not justifiable and reference was made to the decision of Galat v. The Halton Region Conservation Authority, dated April 5, 1977, as authority for the concept that if there was no substantive issue no issue of precedent should be raised to defeat the granting of permission and hence as the present case contained no substantive issue, there should be no problem of precedent. Reference was also made to Hogan v. Nottawasaga Valley Conservation Authority, dated December 24, 1976, in support of the principle that precedent should not deter the allowance of an appeal.
Tenthly, it was submitted on the strength of the Galat and Mobile cases that notwithstanding the fact that the applicants are made appellants in these matters there is a reverse onus on the respondent to establish that the refusal of the issue of permission was justified.
Eleventhly, counsel referred to the case of Brant County Board of Education v. Grand River Conservation Authority, suggesting that the case was of precedential value in permitting the extension of buildings into flood plains, although it was admitted that the appellant was not equally capable of providing assistance in flood conditions.
Twelfthly, and the point may relate to the other points of irrelevant matters referring to jurisdiction, it was submitted that the evidence showed that the respondent was selective to the point of being discriminatory. Reference was made to the Superior Propane property, the property on which barrels are stored and the large number of cars permitted to remain on the B.M.W. property. Similarly, it was suggested that having regard to safety considerations the issue of permission to the appellant for the house to the west of the subject property involves greater danger to human life than the present application.
Thirteenthly, it was submitted that there was an absence of statutory authority for the creation of special policies within the area under the jurisdiction of the respondent.
Fourteenthly, it was submitted that the legal maxim that justice should not only be done but appear to be done should be followed and that the implications of allowing Dominion Stores to have permission under the circumstances of that case and for the City of Oshawa to continue to operate an overhead bridge without permission creates an appearance of injustice, particularly when it was said in an earlier case that the respondent would be looking into the latter situation some six years ago.
The submissions on behalf of the respondent were that the proper approach to cases of this nature is that permission authorized under the regulation is, exceptional and the general consideration is the maintenance of the integrity of the flood plain. It was submitted that safety of human persons cannot be regarded from the present use of the building and that future owners could use the building for purposes that involve residential use or use by other classes of persons or uses for longer periods.
It was submitted that the evidence showed that the enlargement of the building constituted a constriction of the flood plain and loss of storage capacity of the flood plain. In addition no provision was made for access from the building in the event of a regional flood and no provisions had been incorporated into the addition for flood proofing. With reference to social factors, it was submitted that the decision of Double v. South Lake Simcoe Conservation Authority, dated June 22, 1982 a case that dealt with an application for residential construction in a flood plain held that a public need for housing should not override the considerations in respect of flood control.
It was submitted that the concerns related to flooding are not restricted to the safety of and the damage to the subject lands but are also applicable to other properties and persons in the flood plain. With reference to the properties having barrels, cars, tanks and the city's footbridge it was pointed out that the respondent had no jurisdiction to deal with these matters either on the grounds that the articles did not constitute fill or that the limitation period for instituting a prosecution had expired.
With reference to the allegation of discrimination it was submitted that the fact that the appellant had been granted permission for his adjacent property would indicate that the respondent was not discriminating against the appellant and counsel distinguished the Mobile, Galat and Brewers' cases on the facts. With reference to onus, counsel referred to the case of Rashotta v. The Moira River Conservation Authority, dated December 29, 1981.
Counsel for the respondent requested costs on the principle of the case of Credit Mountain Lands Co. Limited v. Credit Valley Conservation Authority, dated December 18, 1978.
With reference to costs counsel for the appellant referred to the case of Ihnat v. The Central Lake Ontario Conservation Authority, dated July 7, 1979 in which the payment of Costs was dealt with and where it was suggested that costs should be awarded only in limited circumstances. It was suggested that if the appellant were required to terminate his existing operation he would suffer significant hardship and that the penalty of costs would be a further burden. It was submitted that there was nothing in the Act or the regulation that permitted a global approach to the problem of flooding and that the decision should be made on the legislation as it is drafted rather than as one might wish it to be.
With two exceptions the submissions of counsel for the appellant will be dealt with seriatim. The first exception is the approach that an administrative tribunal should follow in dealing with an appeal under subsection 28 (5) of the Conservation Authorities Act which read,
(5) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.
The submission, as it can best be understood by this tribunal, is that following the Hopedale case, the tribunal is expected to exercise an unfettered discretion which is not bound by predetermined policies. Reliance was placed on the decision of McGillivray, J.A. at p.263 where is was said,
The tribunal, however where it has announced considerations by which it is to be guided, and where it has original jurisdiction, must not fetter its hands and fail, because a guide has been declared, to give the fullest hearing and consideration to the whole of the problem before it.
Subsequent to the Hopedale decision the Court of Appeal dealt with the jurisdiction of this tribunal in respect of a discretionary power under the Mining Act of granting relief from forfeiture for failure to comply with the assessment work requirements of the Mining Act. At p.332 of Armstrong and Canadian Nickel et al. 4 M.C.C. 321, after referring to the Hopedale case McGillivray, J.A said,
In his reasons the Commissioner makes no reference to any guiding policy and, as previously stated, he undertook to deal with the application before him on its merits. It is necessary, however, in view of his previous statement to examine his reasons for judgment with his statement in mind.
After referring to "equities" his Lordship stated at p. 333,
Turning back to the reasons for judgment already quoted I find that each of the 'equities' raised by the respondents has been considered. In the end the Commissioner has rejected them finding them insufficient to overcome the almost complete failure of the plaintiff to meet the provisions of the Act, or the terms under which the previous extension had been granted up until almost the day when its extension was to expire. The plaintiff had taken over the rights to the claims from his predecessor with full knowledge of the arrears with which they were encumbered and some more strenuous effort on its part was obviously called for.
Upon all the evidence and upon a careful review of his reasons I am unable to say that he failed to exercise his powers in a judicial manner. He is given wide discretionary powers by the sections of the Act which I have mentioned and an appeal court does not lightly interfere with his exercise of them.
It must also be kept in mind that cases dealing with zoning matters and relief from forfeiture in respect of public lands relate primarily to the rights of persons in respect of land in average or normal situations. In respect of zoning the legislative interference through the Planning Act and municipal by-laws is based on the public good as determined by the political process and the restriction on the use of land is usually not related to the quality of the land but rather to the location of the land. In respect of relief from forfeiture of mining rights the issue does not relate to the nature of the land but rather to the ability of the applicant to comply with a statutory requirement. However, the restrictions imposed upon the use of land under the Conservation Authorities Act are significantly different from the restrictions or the relief that were the subjects of the Hopedale and Armstrong cases. The purpose of the Conservation Authorities Act is to prevent the occurrence of the results of flooding that occurred in Hurricane Hazel, the Timmins Storm and other regional storms. The subject matter of the control is not primarily the use proposed to be made but rather the inherent weakness or incapacity for use of the lands in question having regard to the susceptibility of the land to flooding.
Consequently, the discretion of an administrative tribunal in dealing with applications under the Conservation Authorities Act must have regard to the purposes for which the Conservation Authorities Act was enacted and the scientific principles of flood plain management that have been developed in connection with the control of flooding. Further, it is doubted that an administrative tribunal acting under the Conservation Authorities Act would have the power to make decisions without regard to such scientific principles and if decisions were made in disregard of such principles it would seem that a far greater harm is done to society by the adoption of unrelated concepts than would be done in connection with decisions where the land itself was not subject to inherent, although not obvious to all persons, incapacities for universal use.
This tribunal does appreciate that any submissions made by an applicant should be considered and dealt with but it does not feel that scientific principles should be overlooked where they are patently applicable regardless of the failure of the lower administrative body to apply or enunciate those principles.
Secondly, with reference to the matter of onus of proof this tribunal can do nothing more than reiterate its statement in the Rashotte case where it was said,
At the outset it may be said with regard to the matter of onus that this tribunal tries not to resolve an issue before it solely on the matter of onus. The carriage of these matters is given to the appellant who is given the right of reply both in respect of evidence and submissions and in most litigious matters the onus normally follows the person that has the carriage of the matter. However, in these cases the tribunal expects the conservation authorities to present their position as was done in this case and the decision of this tribunal is based, it is trusted, on the evidence produced before it. To date it has not been necessary to make a decision on the sole issue of onus and this tribunal is satisfied that the present case is not an appropriate one for that approach to be used.
In the present case the tribunal is satisfied that there is adequate evidence to illustrate the scientific principles involved, although in passing it may be noted, that the appellant failed to produce any expert evidence to establish any recognized scientific principle on which an exception should be granted.
With reference to the first argument respecting social benefits, the appellant failed to provide the tribunal with any method whereby the economic benefits could be quantified or could be related to the economic coat that would be incurred in the event of a regional storm affecting the subject lands. Needless to say the concept, if it were adopted, would not be based on any accepted principle of flood plain management and would have to be regarded on the basis of a political decision that was made notwithstanding the principles applicable to the management of flood plains.
With reference to the second point, the tribunal's view of the evidence was that the witness failed to appreciate the distinction of the dichotomy that was presented to him and his answer in respect of there being a safety factor built into the establishment of the elevation of a regional storm is not in accordance with any evidence that has been presented to this tribunal on all previous occasions. Apart from the foregoing there was no indication in the evidence before me of the nature of such safety factor and the tribunal is not prepared to find, on the evidence presented to it, that there is a safety factor of sufficient significance to warrant the departure from the usual principles of flood plain management. The tribunal suspects that the witness, who had been subject to a considerable amount of cross-examination, directed his mind to a question such as the possibility of occurrence of a regional storm rather than the extent of a regional storm and nothing in these remarks should be taken to assume that this tribunal acknowledged that there is a margin of error in the calculation of a regional storm.
With reference to the third argument, this tribunal does not feel that it is entitled on the basis of the evidence produced to find that there is an error in the preparation of the flood plain mapping. It is obvious from Exhibits 1 and 2 that the flood plain mapping was performed by a recognised independent consultant in the field and this tribunal does not assume the ability to interpret that flood plain mapping to the degree requested by the submission. Had this point been intended to be pursued proper expert evidence should have been produced either on cross-examination of the witnesses of the respondent or by evidence of the appellant's witnesses. It may be observed that the issue in the Brewer's case was the averaging of the maximum observed flood line and not the regional flood line.
This tribunal has no difficulty with the fourth submission on behalf of the appellant although it does not appear to establish the appellant's right to permission and merely indicates, as this tribunal has said on numerous occasions, that zoning controls and building by-laws are matters dealt with by other tribunals and should not be considered as a sole basis for rejecting an appeal. It has also been noted on occasion that this tribunal would not, without some qualification, allow an appeal that was inconsistent with zoning or building by-laws but would of course if there were a conflict, note the conflict in its decision.
Dealing with the sixth submission, this tribunal cannot concur that the statement of approach can be put on the terse basis of the submission. The tribunal agrees that the relevant merits of each case should be considered but where the nature of the subject of the Act, namely, the prevention of increased flooding susceptibilities, involves the concept that the use of one property is not limited effect to that particular property but has an effect on the entire flood plain, the statement must be viewed with a fairly significant qualification. It is clear in this area that cases cannot be considered in isolation.
Counsel for the respondent did not raise any legal argument against the seventh point. With reference to counsel's argument on the Charter of Rights, the tribunal has examined the provisions of the Charter of Rights and can find no provision outlining the principles suggested by counsel. It can only be assumed that the principle submitted by counsel is based on some inference from the actual provisions and in the absence of some authority establishing such an inference this tribunal cannot give weight to this submission.
With reference to the ninth argument, this tribunal has some sympathy with the position that the reasons given do not relate to the control of flooding and relate in effect more to the consequences of the particular application which may or may not be established. However it is assumed that it is the responsibility of this tribunal to deal with the application on the statutory, as enlarged by the regulation, basis of consideration of control of flooding and hence the fact that the evidence did not support the actual reasons given should not in itself provide a ground for reversing the decision. This tribunal should look at the evidence before it and assess the merits of the appellant's case on such evidence.
With reference to the cases quoted in respect of the issue of precedent, it is the view of this tribunal that one cannot argue that a case that is similar to an earlier decision should be allowed unless one can bring the present case within the principle of flood plain management enunciated by the case quoted as a precedent.
It may be noted that in the Brant case the principle of flood plain management behind the decision was the overriding public interest established by the school authorities in the evidence of the case. Accordingly, that principle is of no assistance to the present appellant. Similarly, in the Mobile case the proposal reduced the constriction of the flood plain while the present case has the opposite effect. The Brewers' case involved the denial of an application of a principle applied to other lands in the immediate vicinity.
With reference to the twelfth point, it is apparent to this tribunal that the issue of discrimination should be related to legal procedures which would set aside the decision of the respondent rather than form a ground for allowing an appeal. In addition, the articles mentioned, namely, propane tanks, barrels and automobiles, do not appear to be within the jurisdiction of the respondent even though there may be, as was alleged and which of course was not proven for want of any evidence to such effect, a risk of greater damage from these chattels.
The thirteenth point is rather interesting. It is closely related to the argument of discrimination. However, it fails to recognize the overall approach of the Conservation Authorities Act and particularly section 21 providing for a wide range of projects and schemes for the control of flooding and consequently, upon the implementation of a project or a scheme there are different principles applicable to the control of flooding in the areas that are subject to the project. The submission can only be construed to be not in accordance with the general principles of the Conservation Authorities Act.
With reference to the fourteenth point, this tribunal has little difficulty with the submission. However, when one has regard to the Dominion Stores case and the City of Oshawa footbridge situation it has to be kept in mind that the remedies available to a conservation authority are fairly restricted and where, as in the Dominion Stores case, the matter was fraught with legal issues and in the footbridge situation the time for dealing with the matter had long expired, namely, the time for instituting a prosecution which is the basis of an order for removal, it can only be concluded that to allow every subsequent application to be governed by what occurred in those two cases would result in the complete abdication by the respondent of its jurisdiction and its responsibilities. While it may appear to the layman who has no understanding either of the law or of the scientific aspects of flood control that there is an element of discrimination, no tribunal would be justified in holding the respondent to the results of those two situations. The establishing of these cases as precedents for every subsequent application that may be made would clearly be an application of the principle that two wrongs do not make a right.
Having regard to the facts of this case in the light of the principles of the Conservation Authorities Act and the regulation of the respondent made thereunder, this tribunal proposes to deal with the case in the light of acceptable principles of the control of flooding. It is apparent from the evidence that the subject lands are situate in the heart of the regional flood plain and are also within the flood plain of the hundred year storm and even lesser storms. While the respondent has in some of the watersheds under it jurisdiction established programs which have permitted it to reduce the complete prohibition contained in the regulation, no such programs have been adopted for the Pringle Creek and there is no anticipation that any such programs can be adopted. Accordingly, the only method of control of flooding available to the respondent is the strict enforcement of its regulation.
The evidence of the appellant has failed to bring out either through his own witness or through the witness of the respondent, who was the only expert witness before the tribunal, that there is a principle of control of flooding under which the present application should be allowed. Counsel for the appellant referred to a number of cases where permission had been granted by this tribunal but the appellant has not established that the principle of flood control applicable in any of the decided cases is applicable in the present case.
Even looking beyond the evidence of the present case this tribunal is not aware of any policy either of the Province or generally accepted by conservation authorities that would permit the construction of the enlargement of the appellant's property in the flood plain. Under current provincial recommended policy construction in the flood plain is limited to areas above the elevation of the hundred year storm and the appellant's property is below that elevation. In addition, it is usual to provide or to require that means of egress to and from an area above the regional storm elevation be available. There is no evidence that this aspect of the control of flooding could be made applicable to the present situation. While there is some evidence that the general economy can benefit from the enlarged factory of the appellant such an interest is not the interest of a municipal, provincial or a federal government body. This tribunal is not aware of any principle of flood control under which the proposed enlargement could be considered to be consistent with the control of flooding. Accordingly, this tribunal has no alternative but to dismiss the appeal.
With reference to costs the chief factor in the Credit Mountain case was the fact that the appellant had entered into negotiations with the respondent and accepted permission in respect of the subject property on terms other than those set out in the application under appeal and in accord with the principles of the respondent prior to the hearing and the appellant had been warned by the respondent that costs would be requested.
With reference to the Ihnat case one of the reasons for refusing costs in that case was the fact that in appealing to the Minister an applicant had no expectation that his case would be heard before a tribunal with power to fix costs. However, since the Ihnat case that legal situation has changed. With the passing of Ontario Regulation 364/82 all cases are heard before the Mining and Lands Commissioner and an applicant considering an appeal should be aware of the tribunal before which the appeal will be heard. That regulation was filed in May of the year 1982. However, the appeal in this matter was filed on March 29, 1982 and by reason of it filing prior to the date of Ontario Regulation 364/82 this tribunal proposes to follow the decision in the Ihnat case.
- It is ordered that the appeal in this matter be and is hereby dismissed.
- And it is further ordered that no coats shall be payable by either of the parties to this matter.
Dated this 16th day of December, 1982.
Original signed by G.H. Ferguson
Mining and Lands Commissioner