The Mining and Lands Commissioner

File No. CA 002-99

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Friday, the 14th day of
January, 2000.

The Conservation Authorities Act

In the matter of

An appeal to the Mining and Lands Commissioner under subsection 27 (8) of the Conservation Authorities Act by the Corporation of the Township of Manvers, the Corporation of the Township of Verulam, the Corporation of the Township of Emily, the Corporation of the Village of Bobcaygeon, the Corporation of the Village of Omemee and the Corporation of the Town of Lindsay, respectively, against the 1999 General Levy Assessment of the Kawartha Region Conservation Authority, dated the 24th of February, 1999.

Between:

Corporation of the Township of Manvers
Corporation of the Township of Verulam
Corporation of the Township of Emily
Corporation of the Village of Bobcaygeon
Corporation of the Village of Omemee
Corporation of the Town of Lindsay
Appellants

and

Kawartha Region Conservation Authority
Respondent

Order

Whereas appeals to the Mining and Lands Commissioner (the "tribunal"), pursuant to subsection 27 (8) of the Conservation Authorities Act, were received by this tribunal on the 22nd, 25th and 26th day of March, 1999, respectively,

And whereas a hearing was held in this matter on Wednesday, the 8th day of September, 1999, in the Courtroom of this tribunal, 700 Bay Street, 24th Floor, in the City of Toronto, in the Province of Ontario;

Upon hearing from the parties and reading the documentation filed,

  1. This tribunal orders that the appeals against the 1999 General Levy Assessment of the Kawartha Region Conservation Authority be and are hereby dismissed.
  2. This tribunal further orders that no costs shall be payable by any party in respect of these appeals.

Dated the 14th day of January, 2000.

Original signed by
H. Dianne Sutter
Deputy Mining and Lands Commissioner

The Conservation Authorities Act

In the matter of

An appeal to the Mining and Lands Commissioner under subsection 27 (8) of the Conservation Authorities Act by the Corporation of the Township of Manvers, the Corporation of the Township of Verulam, the Corporation of the Township of Emily, the Corporation of the Village of Bobcaygeon, the Corporation of the Village of Omemee and the Corporation of the Town of Lindsay, respectively, against the 1999 General Levy Assessment of the Kawartha Region Conservation Authority, dated the 24th of February, 1999.

Between:

Corporation of the Township of Manvers
Corporation of the Township of Verulam
Corporation of the Township of Emily
Corporation of the Village of Bobcaygeon
Corporation of the Village of Omemee
Corporation of the Town of Lindsay
Appellants

and

Kawartha Region Conservation Authority
Respondent

Reasons

The matter was heard in the Court Room of the tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario on Wednesday, September 8, 1999.

Appearances:

Mr. Pat Dunn: Agent for the Appellants
Mr. W.A.W. Scott: Counsel for the Respondent

Opening comments:

At the outset of the hearing, it was noted by the Deputy Mining and Lands Commissioner that this appeal came before the office of the Mining and Lands Commissioner pursuant to subsection 27 (8) of the Conservation Authorities Act whereby "a municipality against which a levy is made under this section may appeal the levy to the Mining and Lands Commissioner appointed under the Ministry of Natural Resources Act

The Mining and Lands Commissioner and Deputy Commissioners are appointed by Cabinet pursuant to subsection 6 (1) of the Ministry of Natural Resources Act (R.S.O. 1990, c m 31).

It was further noted that subsection 27 (12) and (13) outline what the Commissioner shall consider,

Subsection (12) states:

The Commissioner shall hold a hearing on the appeal and shall consider

  1. whether the levy complies with this section and the regulations made under subsection (16); and
  2. whether the levy is otherwise appropriate.

Subsection (13) states that:

the Commissioner may, by order, confirm, rescind or vary the amount of the levy and may order the authority or the municipality to pay any amount owing as a result.

In addition and generally speaking, the principles outlined in the Statutory Powers Procedure Act apply to the hearing. These principles essentially codify that the proceedings be fair. The most salient features of this Act are:

That the parties are entitled

  1. to know the issues
  2. to be heard on those issues
  3. to have adequate notice of the hearing in order to be prepared
  4. to be represented by counselor an agent, if they wish, and
  5. to be heard in public

It was noted that this last point did not automatically give the public any right to be heard. The only persons who would be heard were the parties, their representatives and witnesses, any third party who may be added and counsel for any of the witnesses.

The fact that parties are afforded certain legislative protections by virtue of subsection 14 (1) of the Statutory Powers Procedure Act was also noted. This subsection deems that any party may object to answer any question which may tend to incriminate them in other proceedings, if any, of a civil nature. Essentially, what this means is that anything the party may say cannot be used in any proceedings except in criminal prosecutions for perjury or for the giving of contradictory evidence. What the parties need to know is that as long as the truth is told, nothing said can be used against them.

Preamble/ background

The Kawartha Region Conservation Authority adopted its 1999 budget at meeting #2/99 of the full authority on Wednesday, February 24, 1999. Resolution #29/99 resolved:

That, the 1999 budget for the Kawartha Region Conservation Authority be amended to $397,731.00 revenue, and
That, an apportionment from the Reserve for Unspecified Expenditure be made in the amount of $9,181.00 in support of this budget revenue; and
That municipal funding in support of this budget revenue be $311,300.00; and
Further That, the municipal funding be apportioned between watershed municipalities in accordance with the 1999 apportionment percentages shown on Schedule 111 of the 1999 budget document.

Eighteen (18) members of the twenty-one (21) member Authority were present. Eleven (11) members voted for the budget while five (5) members voted against. Two (2) members abstained. Based on the adopted apportionment vote, Resolution #29/99 was approved by a 40.2743 % vote versus a 35.2649 % vote in opposition.

Four member municipalities and an additional two shortly thereafter (the "appellants") of the Kawartha Region Conservation Authority (the KRCA) filed an appeal against the 1999 Kawartha Conservation Authority Budget (Ex. 6) with the Office of the Mining and Lands Commissioner on March 24,1999, pursuant to subsection 28 (5) of the Conservation Authorities Act R.S.O. 1990, c.C.27.

A mediation session was held in the Office of the Mining and Lands Commissioner on May 5, 1999 by Mr. Daniel E. Pascoe, Registrar. The appellants were represented by Councillor Pat Dunn (Town of Lindsay) while Mr. W.A.W. Scott represented the respondent. This mediation session and follow-up attempts at settlement were not successful, which led to the hearing before the tribunal on September 8, 1999.

Issues:

  1. Did certain appointed members act in an appropriate manner with regard to voting or abstaining as directed by their respective Councils as specified in subsection 2 (3) of the Conservation Authorities Act? What are the rights of members to abstain and to announce those intentions? Does the tribunal have the jurisdiction to decide these issue?
  2. Were the Authority members and the member municipalities provided with adequate information concerning the proposed budget and possible capital expenditures as they might relate to "benefit derived"? Was there sufficient time allowed to make a judgment about the validity and advisability of the proposed budget? Does the tribunal have any jurisdiction over the financial status of taxpayers?
  3. Did the voting process on the 1999 budget comply with the Regulations and or Administrative Procedures of the Kawartha Region Conservation Authority and the Conservation Authorities Act?
  4. Did the Authority follow the Regulations with regard to the apportionment of the levy?
  5. What is being appealed - the budget or the levy? Does the tribunal have jurisdiction regarding this issue?

Witnesses:

Only one witness appeared before the tribunal, being Mr. Ian D. Macnab, General Manager of the Kawartha Region Conservation Authority. Mr. Macnab was sworn as a witness to provide the evidence for both the appellant and the respondent.

Preliminary statements:

Mr. W.A. W. Scott, Counsel for the KRCA, briefly outlined the Authority's position with regard to the appeal before the tribunal. He indicated that the 1999 budget was approved by the full Authority. He pointed out that Section 27 (8) of the Conservation Authorities Act allows the following:

"A municipality against which a levy is made under this section may appeal the levy to the Mining and Lands Commissioner, appointed under the Ministry of Natural Resources Act"

Mr. Scott contends that the appellants have appealed the budget, not the levy. Further, he stated that the appellants contention of irregularity in the voting is their opinion and such an opinion does not make the vote illegal.

Mr. Scott was prepared to have Mr. Macnab called as a witness by the appellants in order to state all the facts in the appeal, reserving his right to clarify and cross examine.

Mr. Pat Dunn, Councillor for the Town of Lindsay, reviewed the "Reasons for Appeal to the 1999 KRCA Budget" and referred to Ex. 6. He summarized the reasons as follows:

  1. Certain appointed members did not act on behalf of their respective municipality by abstaining from voting on the 1999 budget, even though so directed by their Councils to vote in favour of a specific budget level. The appellants contend that these members violated Section 2 (3) which states:

    The representatives so appointed have authority to vote and generally act on behalf of their respective municipalities at the meeting.

    The appellants further contend that the chairperson of the authority should not have called for abstentions nor announced his own abstention and the reason for doing so. This action is viewed by the appellants as lobbying, without voting and was a misuse of the position of chair and contrary to Robert's Rules of Order.

  2. The budget information supplied to the local municipalities and authority members prior to the budget vote was inadequate and lacked sufficient financial data, especially relating to prior years budgeted and actual revenues/expenses.
  3. The appellants contend that no consideration was given to certain cost cutting proposals which would have allowed for the holding of the municipal levies to the previous year's level. In addition, they indicated that the emphasis of the Authority should be placed only on mandatory program requirements with all other programs being reduced when necessary.

Examination in chief of appellant's witness by Mr. Pat Dunn

Mr. Ian D. Macnab was sworn in as an expert witness, qualified to give evidence in the matters before the tribunal. Mr. Macnab's credentials were accepted as submitted in Ex. 10. Mr. Macnab stated that he was the General Manager of the Kawartha Region Conservation Authority and outlined his duties in this position.

Mr. Macnab described the budget process for the tribunal. It begins in early September at the full Authority level when general directions are discussed. The Executive Committee and staff are requested to prepare a draft budget. Department Heads of the Authority provide information to the Financial Director who then drafts the budget. This document is discussed with the Executive Committee of the Authority, usually on three or four separate occasions. The Executive Committee often makes changes to the draft document, both in format and context, prior to it being presented for discussion to the full Authority in early December. This draft budget then is forwarded to each of the member municipalities, allowing for at least a thirty (30) day response. The actual budget vote then occurs, usually, in February. Once approved, the municipalities are levied, based on the approved apportionment or assessment.

The AMO protocol (Ex. 14) was referred to by Mr. Dunn. Mr. Macnab indicated that the AMO-ACAO (Association of Municipalities of Ontario and the Association of Conservation Authorities of Ontario) issued a joint protocol pertaining to Non-Matching (Discretionary) Municipal Funding of Watershed Programs. This protocol recommends that thirty (30) days notice is needed by the local municipalities to review the non-matching portion of the budget.

Mr. Macnab was asked if this thirty day period was provided to the Kawartha Region's municipalities. In response, he noted that the entire budget was authorized by the Authority on January 20th, 1999 and mailed out to the member municipalities on January 21st, 1999 for their review. Each municipality was notified that staff would attend a Council meeting to discuss the 1999 budget upon request, but no requests were received by the Authority.

Since the Authority had been delayed in forwarding the budget for municipal review, Mr. Macnab indicated that the Authority meeting to discuss and adopt the budget was delayed until February 24th, 1999 in order to comply with the protocol. Mr. Macnab indicated that some of the delay occurred because both the Township of Verulam and the Village of Bobcaygeon had indicated their desire to cease any involvement with the Authority in the future.

Mr. Dunn questioned Mr. Macnab about some of the details of the 1999 budget, in particular about the approval to purchase a four wheel drive vehicle. Mr. Macnab indicated that no approval was required since it was not part of the budget itself but was paid for from the replacement reserves, which has been growing since 1980. Mr. Macnab indicated that the vehicle was a replacement, not a capital expense.

Maintenance costs also were questioned as to budget provisions. The Authority charges all maintenance costs against each program rather than as a direct line item. Travel costs also go against the vehicle within the program. The programs are part of the budget. Any revenue of equipment rental is placed in the Reserve fund.

Mr. Macnab discussed the properties that are owned or managed by the Authority and the expenses related to these lands. The Authority receives a management fee from the Heritage Foundation for the Fleetwood Creek area. The Ken Reid area is part of the municipal levy, while the Pigeon River maintenance is included in the budget itself.

Mr. Macnab replied in the negative when asked if any analysis was undertaken to determine any specific benefits to one area over another. Unless under management fee, the Authority's conservation areas are budgeted as benefiting the Authority as a whole. It is true that some municipalities could derive more benefit than others, but the Authority has taken the position that on average, everything balances out. An example is the Ken Reid area which provides a greater benefit to the Town of Lindsay.

Mr. Dunn then focussed on actions proceeding and during the Authority meeting at which the budget was approved. Mr. Dunn stated that the Chair of the Authority, Mr. Tom Crowe, received information at an Executive Meeting that he could abstain from voting rather than vote in the negative for the budget as directed by his Council. Mr. Macnab indicated that he did not attend this meeting, so he had no knowledge of this possible action. Mr. Macnab did indicate that the Minutes of Meeting #2/99 were an accurate representation of the facts. An excerpt from these minutes was entered into evidence (Ex. 6).

Chair Crowe stated that his Council was opposed to the proposed 1999 conservation budget and in consideration of his role in drafting the budget and his personal belief in its merits, he could not in good conscience participate in the budget vote. He then stepped out of the chair and Vice-chair Gary Atkins assumed the chair for purposes of dealing with the budget.

Mr. Bailey then announced that he too could not in good faith participate in the budget vote as per his Council's wishes and that he would abstain.

Mr. Dunn referenced Subsection 2 (2) of the Conservation Authorities Act which provides for the establishment of Conservation Authorities and Subsection 2 (3) which references the issue regarding representatives generally acting on behalf of their municipalities. Mr. Macnab agreed that had Mr. Crowe voted "no" as directed by his municipality, the budget would have been defeated.

Mr. Dunn asked if Mr. Crowe would have voted for the reduced budget of $302,000.00. Mr. Macnab could not answer for Mr. Crowe and noted that this issue never was put before the Authority, in the form of a resolution which would have required a vote.

Referring again to the AMO / ACAO protocol (Ex. 14 - page 2), Mr. Dunn asked if the KRCA followed the protocol with regard to grouping the levy into the three distinct categories of levy - general program costs, special benefiting project costs and costs associated with capital expenditures. He especially mentioned the general program costs. Mr. Macnab replied that the Authority has done so.

Cross examination of the appellant's witness

Mr. Scott directed his cross examination of Mr. Macnab towards the matter of the budget preparation and the experience of the witness in this regard. Mr. Macnab indicated he had been involved in the Authority's budget preparation in some form or another since 1980 and as Secretary-Treasurer from 1986. He indicated that the same procedures have been followed during that time with changes occurring in 1996 due to alterations in the method of financing conservation authorities, as well as the method of appointments to the authorities.

He stated that, during his tenure with the Authority, no budget had been challenged or appealed. He stated his opinion that the 1999 budget was properly processed.

Re-examination of the appellant's witness

Mr. Dunn asked if any of the budgets had been challenged by any of the local Councils. Mr. Macnab responded that they had been. The tribunal noted that no further details were provided by either party with regard to this issue.

Prior to final submissions being given, the appellant's indicated that they were uncomfortable with the fact that Mr. Tom Crowe was not present at the Hearing to allow the appellants to question him with regard to his actions. It was understood that Mr. Crowe was not present for medical reasons.

The tribunal noted that neither party had indicated any intention of calling Mr. Crowe as a witness, although the ability to do so existed, prior to the Hearing and could have been facilitated by the Office of the Mining and Lands Commissioner.

The appellants were asked if they wished to have the matter adjourned in order to call Mr. Crowe. Mr. Dunn, however, indicated that they were prepared to accept the evidence as submitted prior to and during the Hearing with regard to Mr. Crowe's actions.

Final submission - appellant

Mr. Dunn submitted his final statement to the tribunal in writing on September 9, 1999. This document was provided to the Respondents by the Registrar of the Office of the Mining and Lands Commissioner, Mr. Daniel Pascoe. It was entered as Exhibit 15. The tribunal has summarized the relevant material from this submission as follows:

  • The appeal encompasses more than the $8700.00 increase in the municipal portion of the 1999 budget.
  • The appeal concerns the control of an organization by the municipalities that created it.
  • It concerns the workings of the KRCA within the framework of the Act.
  • The appellants are attempting to find a balance between the need for conservation and the responsibility to the citizens to control expense and reduce taxes.

Mr. Dunn stated that the framers of the Conservation Authorities Act recognized that the member municipalities were required to provide certain core services, to do so in a cooperative manner in order to share the costs and benefits and to provide an economy of scale. The difficulty arises when one group of conservationists has a different view about the Authority's actions than another group.

The Act did allow for the Authorities' mandate to be expanded but "provided specific direction on how the cost would be charged back to the municipalities". Mr. Dunn contends that the KRCA has failed to follow these directions. In addition, the Authority has made it difficult for some of the member municipalities to determine the actual costs of these expanded services. Mr. Dunn stated that:

This has caused discontent within the Authority mainly from the municipalities who are paying the lions share of the costs. As a result, the KRCA now has the dubious distinction of being the first and only Authority to have dealt with a dissolution motion and the first and only authority to have a budget appealed.

Quoting directly from Exhibit 15, it was Mr. Dunn's submission that the appeal should be upheld on the following grounds:

  1. "that the KRCA failed to establish during the budget submissions a budget identifying maintenance costs as prescribed in section 27 (2) of the Conservation Act;
  2. and that the KRCA failed to establish a levy apportioning the costs to the participating municipalities according to the benefits derived or to be derived by each municipality as prescribed in section 27 (2) of the Conservation Act;
  3. and that the KRCA failed to establish during budget submissions a budget identifying capital expenditures as prescribed in section 26 (1) of the Conservation Act;
  4. and that the KRCA failed to establish a levy apportioning the costs to the participating municipalities in the same proportion as the benefit derived by each such municipality bears to the benefit derived by all participating municipalities as prescribed in section 26 (2) of the Conservation Act;
  5. and that the KRCA failed to, when determining the proportion of the total benefit of any project afforded to all participating municipalities that is afforded to each of them, cause a notice concerning a statement of apportionment to be sent to each council of each participating municipality by registered mail as prescribed in section 25(1) of the Conservation Act."

Note: The tribunal noted that the issues regarding maintenance, capital expenditures and the apportionment of project costs were not directly raised by the appellants in the initial "Reasons for Appeal" outlined in Ex. 6. (Reference also Item 1, Ex. 15) Mr. Dunn indicated that these issues have arisen from the examination of Mr. Macnab regarding maintenance, etc. and the fact that the Executive Committee of the Authority had deemed that these costs should be borne by the general levy. Mr. Dunn contends that this should not have been determined by the Executive since they are required to act in the manner prescribed in the Act.

Subsection 25 (1) of the Conservation Authorities Act states:

When an authority has determined the proportion of the total benefit of any project afforded to all the participating municipalities that is afforded to each of them, it shall cause a notice containing a statement of the apportionment to be sent to the council of each participating municipality by registered mail.

An appeal to the Ontario Municipal Board can be launched to review the apportionment by any dissatisfied municipality.

Mr. Dunn indicated that the appellants are entitled to the analysis of the benefits. It is their opinion that some municipalities receive a large benefit for little cost, while others pay more for a small benefit. He stated that the reason that the "benefit assessment safeguards" were introduced was "to prevent the tyranny of the majority":

Continuing his summation, Mr. Dunn stated that the appellants believe the KRCA violated Robert's Rules with regard to the vote. The appellants had submitted in Ex. 6 that Robert's Rules does not allow for abstentions. He contended that it was predetermined that a "no" vote by the Chair would have defeated the budget, but by announcing his support for the budget and by abstaining from the vote, the Chair helped to carry the Budget and encouraged another member to abstain as well. Mr. Dunn stated that:

"We submit this alone would be sufficient ground for the Commissioner to declare the vote invalid and rescind or vary the amount of the levy pursuant to section 27(13) of the Act."

The appellants further contended that there is ample direction, both in Subsection 2 (3) of the Conservation Authorities Act and agreement in the protocol, to allow municipalities to direct the vote of the members on the budget. Mr. Dunn stated that:

It is apparent that after meeting with members of the senior executive (Mr. MacNabb) that a No vote would defeat the budget and an abstention would permit it to pass. By abstaining the members directed not to support the budget, in fact, did support it

Mr. Dunn concluded by indicating there were a multitude of choices for the tribunal in deciding this matter, including:

  1. the tribunal can order the levy be varied to reduce the appellants' share to the 1998 levy level, an approximate cost of $4000.00;
  2. the tribunal can order that the levy be varied so that all the member municipalities share in the reduction to the 1998 levy level, an approximate cost of $8700.00;
  3. the tribunal can rescind the entire levy and order the Authority to present the budget and the levy in the manner prescribed by law; or
  4. the tribunal can order the levy be paid;

The latter choice, of course, is unacceptable to the appellants.

Final submissions - respondent

Mr. Scott submitted that the appeal should be dismissed and that costs should be awarded against the appellants.

Mr. Scott contended that Mr. Dunn had intermingled sections of the Conservation Authorities Act, none of which lead to a logical conclusion. Although Mr. Dunn has complained about the issue of "project", he did not provide any evidence to indicate that things were not done according to the rules set out in Section 24 of the Act. With his reference to Section 25 of the Act, Mr. Dunn again did not provide any evidence to show that a project was to be apportioned and was not. Mr. Scott submitted that everything that was done was consistent with the regulations.

He discussed the issue of "project". There are certain steps that an Authority must take in adopting a "project" as an action of the Authority. If any Council does not like the apportionment of the project it is required to pay, then the municipality has the right to apply for a review by the Ontario Municipal Board. Mr. Scott submitted that it certainly is possible to appeal on the issue of "project", But that is not the basis for this appeal to the Mining and Lands Commissioner. The issue of project was not mentioned in the appellant's original submission nor in the opening remarks of the appellant.

Under subsection 27, there are two reasons for an appeal:

  1. A project - which requires Ministry of Natural Resources approval and the cost apportioned on a benefiting basis. Mr. Dunn did not provide any evidence that any project was incorrectly handled. The tribunal should therefore not deal with this issue.
  2. The levy - the Mining and Lands Commissioner has the jurisdiction to hear only an appeal on the levy. No evidence was submitted regarding the levy or the apportionment of the levy to the member municipalities. There is an obvious connection between the Budget and the levy, since the first leads to the second. It requires a mathematical exercise and proper notice to the member municipalities.

Mr. Scott stated that this subsection speaks to only the "levy" not the budget. There is no authority for the tribunal concerning the budget. No evidence was submitted that anything was wrong with the apportionment of the levy nor the required notification. Mr. Scott submitted that this appeal is invalid and should therefore be dismissed.

Mr. Scott reviewed the budget process, indicating that before the Authority has a levy, it must have an approved budget. A mathematical exercise is then followed based on the assessment numbers provided by the Province of Ontario. It is the mathematical exercise that is subject to appeal, not the actual levy and certainly not the budget.

Mr. Scott cited Subsection 27 (13) of the Conservation Authorities Act:

The Commissioner may, by order, confirm, rescind or vary the amount of the levy and may order the authority or the municipality to pay an amount owing as a result.

Mr. Scott submitted that this subsection speaks only to the levy, not the budget. However, if the tribunal did decide that the levy was to be varied, the Act says:

may order the authority to pay any amount owing as result

If a municipality can satisfy the tribunal that the levy is incorrect, the tribunal can order the Authority to return the difference between what was levied and what should have been levied. There is nothing in the Act which speaks to the tribunal concluding that a budget is incorrect, nor allowing any return of funds, since it is only a budget. Mr. Dunn has suggested that the tribunal has the jurisdiction to say basically that the budget does not exist. Mr. Scott, however, stated that "there is no authority for the Commissioner to say a budget is not a valid subsisting document".

Follow up submission - appellants

Mr. Dunn submitted that there was ample evidence introduced that indicated that the levy was not arrived at in the appropriate manner. He referred to the matter of capital expenditures and maintenance costs involved in such areas as the Ken Reid Park Beach. Mr. Dunn submitted that these costs have not been identified so that the appellants are unable to assess them.

Mr. Dunn indicated that it was difficult for the appellants to argue against the levy if they did not know what they were being levied for and the manner in which it was divided or apportioned. The Act clearly states that these costs should be broken down and the KRCA has failed to do this, especially as related to maintenance costs.

The tribunal asked the appellant if there were any motions passed by his (or any other) Council requesting information about the budget from the Authority. Mr. Dunn responded in the negative.

Examination regarding awarding of costs - appellants

Mr. Dunn recalled and questioned Mr. Ian Macnab requesting information as to why the hearing was held in Toronto rather than in the Kawartha area. Mr. Macnab indicated that the location was at the request of the Authority on the basis that the Hearing Room of the Mining and Lands Commissioner was "neutral ground", offering neither party any advantage.

Mr. Dunn referred to Mr. Macnab's cover letter to the Commissioner regarding Exhibit 12. Paragraph 7 of this letter (P. 3) dealt with the award of costs. He noted the section as follows:

Kawartha Conservation requests that the Commissioner order the appellant municipalities to pay all costs associated with preparing for and attending the appeal hearing. These costs cannot be finalized until the hearing and al/ decisions coming from it are finalized. However, our estimate at this time (August 17th) is as follows:

Senior staff time $6,950.00
Executive Committee per diems and travel $ 560.00
Disbursements (photocopying, postage, fax, etc.) $ 225.00
Legal costs $ 7,000.00
Total $14,735.00

Mr. Scott asked if there were any personal costs included in the "senior staff time" line, to which Mr. Macnab replied in the negative indicating that the staff time referred to his salary and a secretary's salary while working on the appeal, with no allowance for overtime.

Mr. Scott indicated that the appellants were concerned that the Hearing was held in Toronto, since it increased their costs as well as those of the respondents.

Examination regarding awarding of costs - respondent

Mr. Scott cross-examined Mr. Macnab regarding the position of the appellants on the 1999 KRCA budget. Mr. Macnab stated that the appellants wanted the budget to remain as it was in 1998 with regard to municipal funding. The municipal funding request for the 1999 budget was $8,700.00 higher than the 1998 budget. Mr. Macnab indicated that, to his knowledge, the appellants had not discussed any projects, but only had discussed maintaining the 1998 municipal funding level in the 1999 budget.

Mr. Scott referred to Ex. 12, Schedule III which outlined the apportionment of the 1999 Budget to be levied against the individual municipalities. The impact on the Authority as a whole was $8,700.00, while the impact on the six appealing municipalities was $4,005.56.

Re-examination of the witness - the appellants

Mr. Dunn requested further information from Mr. Macnab regarding various documents that had been submitted. He referred to Schedule A entitled "Kawartha Region Conservation Authority - Financial Forecast for 1996 and The Five Year Period 1997 to 2001 ". (Ex. 12 Tab 5). According to Mr. Macnab, this document was prepared in 1996 for analytical purposes only and provided estimates for the future. Due to varying circumstances, these estimates changed along the way and were approved by the KRCA. There was no guarantee that the funding level was a stable figure.

Mr. Macnab also referred to a report entitled "Situation Analysis and Options for the Future", dated January 17, 1996 and presented to the Board of Directors of the KRCA. (Ex.7) He referred to a statement in section 5.4 of this report:

The forecast for the years 1997 through 2001 is provided to demonstrate the financial viability of the Authority for a five year period based on reduced operation needs. The forecast is made for purposes of this analytical document; actual budgets set by the Board of Directors may differ.

It is noted that the 1997 and 1998 budgets did maintain the forecasted municipal funding levy. (Ex. 12 -Tabs 2 and 3)

Mr. Macnab indicated that the Chart submitted by the appellants with regard to the vote and attendance at the Authority meeting when the budget was approved, was incorrect. He pointed out that this chart (Ex. 6) indicated that some members of the Authority were directed to vote "No" when this was not so. Mr. Dunn acknowledged that the Chart needed correcting. A corrected Chart was submitted by Mr. Dunn subsequent to the hearing, showing the correct information.

Mr. Dunn pointed out that the bottom line figures of the chart were correct and that if the members had all voted as directed by their municipalities, the budget would have failed by a substantial majority.

Submission re awarding of costs - respondent

Mr. Scott submitted that there is "something very wrong where five or six municipalities facing a budget increase of $8700.00 should choose to attack". The Authority must defend its position on the budget, They have the responsibility to balance the benefits throughout the municipalities. He contended that the six (6) "dissident' municipalities had forced a substantial expense without any good cause. As a result, they should be responsible for the cost.

Submission re awarding of costs - appellants

Mr. Dunn reiterated that the amount of dollars involved was not substantial, but the manner in which the vote occurred should have forced the Authority to withdraw the budget increase. The municipalities are all on "shoe-string" budgets as were the group preparing the appeal. The appellants felt that the matter could have been settled before the hearing but met road blocks all along the way.

The tribunal hearing could have been in Lindsay to save dollars for the appellants and the respondents, and not in Toronto which required everyone involved to travel. Mr. Dunn stated that arrangements had been made for the hearing to be held in the Lindsay area, which would not have cost all the travel money.

The appellants are not seeking costs, nor should the Authority be granted costs. If costs are to be awarded however, they should be nominal, since it would penalise the appellant municipalities for trying to uphold their rights of law, within the system.

Submissions re awarding of costs - from member municipalities

The tribunal noted that letters were received. prior to the Hearing from the following municipalities which supported a resolution of the Township of Fenelon's Council, which stated: (Ex. 1)

"Motion: M - 99-99

Moved and Seconded by Elizabeth Luzak and Jim Chambers that

Whereas due process was followed in both the decision of the continuance of Kawartha Conservation and the adoption of the 1999 budget of the organization;

And whereas the municipalities that form Kawartha Conservation are being involved in additional financial costs due to an appeal under Section 27 of the Conservation Authorities Act a minority of municipalities;

And whereas each municipality has been involved in the sharing of an approximate cost of $9,000 for a dissolution program of Kawartha Conservation which was also requested by a minority of the municipalities within Kawartha Conservation;

Be It Therefore Resolved That, if the appeal under Section 27 of the Conservation Authorities Acts not supported by the Commissioner of Lands and Mines, then the Commissioner request that the minority municipalities who are requesting the appeal be ordered to pay costs that Kawartha Conservation will incur because of the appeal, instead of all municipalities that form Kawartha Conservation bearing the financial burden when they did not support this appeal.

And Further, that support for this resolution be requested from all municipalities that form Kawartha Conservation and forwarded to the Commissioner of Lands and Mines. Carried"

This motion was supported by the Township of Brock (Ex. 1). the Township of Bexley (Ex. 2), the Township of Scugog (Ex. 3), the Township of Cavan-Millbrook-North Monaghan (Ex. 4), and the Municipality of Clarington (Ex. 5)

(Tribunal note - these municipalities represent 28.448 % of the apportioned Authority vote. 20.8017% did not respond to the resolution while the appellants represent 50.7503% of the apportioned vote)

Findings

Preamble

The appellants submitted the reasons for their appeal (summary of facts) on April 27, 1999 (Ex. 6). In summary, the reasons provided were:

  1. Certain members violated Subsection 2 (3) of the Conservation Authorities Act by abstaining from voting on the 1999 budget even though directed to do so by their municipalities;
  2. Prior to the vote, inadequate budget information was provided to the municipalities;
  3. The actions of certain members was contrary to Robert's Rules of Order, which state that the chair should not call for abstentions nor should members announce such intentions;
  4. Lack of consideration for the financial status of taxpayers;

and further, the fifth point was:

The appellants request the right to include any other matters which might arise out of a Pretrial Hearing and/or the Response of the Kawartha Conservation Authority as deemed appropriate by the Mining and Lands Commissioner.

At the conclusion of the hearing, Mr. Dunn, on behalf of the appellants, submitted his closing argument (Ex. 15) in which he outlined five (5) points dealing solely with the issue of maintenance costs as per subsection 27 (2) of the Conservation Authorities Act and the apportionment of costs according to benefits derived as per subsection 26 (2) of the Act.

Based on the request made in their fifth point, the tribunal has accepted the issues raised in the appellant's closing argument as part of their reasons for appeal. Although this late action by the appellants and the acceptance by the tribunal did not and does not afford the respondent adequate response time, the tribunal is of the opinion that the respondent's closing arguments and the documentation provided by the respondent in the form of the budget information and the background reports, along with the evidence given by Mr. Macnab at the hearing, provides sufficient information for the tribunal to make an informed decision on the issues.

There also is a matter of jurisdiction involved in this hearing along with an issue of the validity of the appeal itself. Despite this, the tribunal intends to deal with all the issues raised in order to make all matters perfectly clear for the benefit of both the appellants and the respondent.

Issue 1

Did certain appointed members act in an appropriate manner with regard to voting or abstaining as directed by their respective Councils as specified in Subsection 2(3) of the Conservation Authorities Act? What are the rights of members to abstain and to announce those intentions? Does the tribunal have the jurisdiction to decide this issue?

The first reason for the appeal, submitted by the appellants (Ex. 6) dealt with subsection 2 (3) of the Conservation Authorities Act. The appellants alleged:

"As certain appointed members did not act on behalf of their respective municipality through the process to abstain from voting on the 1999 budget as they did not agree with the direction of their council, the appellants take the position these members violated the above section and therefore forms grounds for appeal under the Conservation Authorities Act."

Subsection 2 (3) of the Conservation Authorities Act reads as follows:

The representatives so appointed have authority to vote and generally act on behalf of their respective municipalities at the meeting.

Based on the words found in subsection of the Act, the tribunal finds that it has jurisdiction with regard to this issue. There is no wording, however, that states or implies that a member must act if and as directed by a local municipality.

The members of the Kawartha Region Conservation Authority are appointed by the councils of the municipalities participating in the Authority. The Authority subsequently appoints an Executive Committee to act for the Authority in between meetings and on certain matters determined by the Authority itself. The Authority also names certain members to act as Chair and Vice Chair of the Authority and as Chairs of any Committees that may be established. These people are required to carry out the business of the Authority which may include the borrowing of money, policy recommendation, budget preparation and recommendation, and ensuring that any regulations that the Authority may have adopted are enforced. Subsection 21 of the Conservation Authorities Act outlines the powers assigned to Conservation Authorities in carrying out these duties. The Authority members and their Executive have a responsibility to the Authority as a whole, as well as to their local municipality.

Evidence was submitted regarding the issue of "directed voting" through Exhibit 13 - Correspondence from Ms. Judy Currins, Clerk-Treasurer, Village of Omemee which advised that neither the Town of Lindsay or the Village of Omemee have any written policies which require members to vote in the manner dictated by their local Council. Information was not available as to the policies of the other appellant municipalities. In addition, the appellants did not submit any of the resolutions of the local municipalities indicating that they had directed their representatives to vote against the 1999 KRCA budget. The resolution of the Town of Lindsay was submitted through a copy of a Town report, dated March 22, 1999, dealing with the Council requested review by the Mayor concerning the appointments to the KRCA. This document was submitted by the respondent as part of Exhibit 12, Tab 9. The resolution reads as follows:

Resolved, that the Town of Lindsay representatives on the Kawartha Region Conservation Authority be requested to vote in favour of a budget that results in no increase in the Municipal funding line of $302,600.

The Mayor's report notes that this motion instructs Lindsay's representatives to "vote in favour of a budget of $302,600" but, technically, does not direct a vote against any other budget.

The tribunal agrees with the conclusions of this report when it states that, as Chair of the KRCA, Mr. Crowe was placed in an "awkward" (if not untenable) position. He was involved in the development of the 1999 budget and the processing of same. To vote against it would have been a very difficult action for the Chair of the Authority. Technically, he did not vote for a $302.600 budget and by abstaining, he also did not vote for the proposed budget.

The Kawartha Region Conservation Authority adopted Administrative Procedures by Resolution #53/93 dated May 1993. (Ex. 12, Tab 11). These procedures outline the responsibility of the Chair of the Authority. Clearly, the Chair must take the greatest responsibility for the actions of the Authority and its General Manager. The Chair is the responsible elected representative on the Authority and must act in a manner that is beneficial to the Authority. If this action is not satisfactory to the appointing municipalities, then they have the right to remove the person from membership on the Authority.

Both the appellants and the respondent have referred to Robert's Rules of Order. Exhibit 12, Tab 11 are the adopted Administrative Procedures for the KRCA. These are a supplement to the Authority's Administrative Regulations as approved by the Minister of Natural Resources on February 7,1985 pursuant to subsection 30 of the Act and adopted by Resolution #29 FA/85 (Ex. 12 - Tab 10). These Regulations state:

Meeting Procedures

12. Rules of procedure for Authority meetings shall adhere to the current edition of Robert's Rules of Order, Bourinot's Rules of Order or other generally accepted rules of procedure.

The KRCA Administrative Procedures state that the Authority will conduct business in accordance with Robert's Rules of Order. (Section M - 2) Other relevant sections dealing with voting are as follows:

Section F.1. states:

At any meeting, each member is entitled to one vote and the Chair shall vote with the other members on all questions. In the event of a tie vote, the Chair shall cast a second or deciding vote.

Section F.5. states:

Before a vote is taken, any member may require a recorded vote and it shall be taken by alphabetical surname with the Chair voting last. On a recorded vote, each member will answer "yes" or "no" to the question, or will answer "present" if the said member does not wish to vote.

The Mayor of Lindsay's Review report ( Ex. 12- Tab 9) concluded that "according to Robert's Rules of Order an abstention is neither a negative nor a positive vote". Exhibit 13 provides a notarized extract from the Modern Edition of Robert's Rules of Order. Section 39 dealing with the calculation of votes states:

All votes are calculated on the basis of present voting members. With the right to vote goes the right to abstain from voting, but the chair should never call for abstentions, nor do members have a right to announce they abstained. Abstentions have no effect on the calculation of the votes

The tribunal accepts that Mr. Crowe, through his abstention, was basically indicating that he was "present" within the context of the Administrative procedures and that this abstention, along with that of Mr. Bailey, have no effect on the calculation of the vote.

With regard to the issue that the Chair should "never call for abstentions nor do members have a right to announce they abstained". in Mr. Crowe's case. he was the Chair at the time and as a result, short of leaving the meeting or not attending at all, he had no choice but to announce that he was going to abstain from voting and leave the chair, since it is the Chair that must declare which side won the vote. Exhibit 13 - Page 80 - Roberts Rules of Order states:

When tellers assist in the taking of a vote, they should report the results to the chair in such a way that all present can hear, but they should not indicate which side prevailed; they merely report numerical results and the chair subsequently declares which side prevailed.

In addition, through his responsibility as Chair of the Authority, Mr. Crowe had to make sure the meeting would be run fairly, given his position on the matter. There would have been little doubt of his reasons for abstaining even if he had not stated "in consideration of his role in drafting the budget and his personal belief in its merits". According to the Authority's procedures, the Vice-chair rightly assumed the Chair and Mr. Crowe apparently took no further part in the budget vote. Mr. Bailey, also a member of the Executive Committee, took the same action.

The only error Mr. Crowe may have made was to actually state his personal beliefs and to announce that he intended to abstain. Mr. Crow could have vacated the Chair and taken no part in the discussions but stated "present" when the vote was taken. He also could have taken part in the debate, but apparently did not. Whichever action he had taken, the resulting vote would have been the same.

The other document that was submitted regarding this issue of voting and the direction of voting is the AMO-ACAO Joint Protocol Pertaining to Non-Matching (Discretionary) Municipal Funding of Watershed Program (Ex. 14). This document was prepared "to ensure long-term sustainability of conservation authority functions and services". The covering letter to the Minister of Natural Resources of the time (August 1996) also stated: "We also recognize that municipalities are accountable for the expenditure of local funds and must ensure that they have effective control over the deployment of these funds." The protocol is a framework for carrying out this goal and provides some principles to guide the partnership between municipalities and the local conservation authorities. A further document was issued in January 1997 to Mr. Jim Anderson, General Manager of the Association of Conservation Authorities of Ontario (Ex. 8 and Ex. 12) by the Ministry of Natural Resources entitled Policies and Procedures for the Administration of the Municipal Regulation for Non-Matching Levy Conservation Authorities Act. This document provided policies and procedures to complement, as an addendum, the earlier Protocol. The policy document was to provide "clarification to the budget and levy setting processes and the voting processes required to approve the non-matching levy portion of a Conservation Authority budget".

The Policies and Procedures for Non-Matching Levy utilize the concept of "weighted support". Section 3.0 Policies and Procedures indicates that a budget leading directly to a levy should use the "weighted support" procedure. This section also states:

Members vote as per the direction of the municipality/ies each represents (ACAO/AMO Protocol).

In the event that not all of a municipality's member(s) are present, the member(s) in attendance represent(s) only their proportion of the municipal weighting in the voting.

A tie vote is a lost vote....

The Policies and Procedures do state that a "directed vote" on a budget is valid. However, the Protocol is silent on the issue of abstentions. As a result, the tribunal views this aspect as discretionary.

A subsequent investigation by the tribunal concerning the status of both the Protocol and the Regulation has determined the following information. A memo from Jim Anderson (ACAO) to the KRCA (Ex. 12- Tab 1) dated August 13, 1999 states that the Joint Protocol does not formally bind any municipality or CA. but is a statement of shared values. He further stated that "there is nothing in the ACAO Council powers to formally require individual CA's adherence to the Protocol." Mr. Macnab. through his evidence, indicated that the Authority has attempted to follow the Protocol since the time that it was made available to them, but there has been no resolution adopting them as part of their Administrative Procedures. As a result, the issue of directed voting and the relationship to abstentions is again viewed as discretionary by the tribunal.

With regard to the Regulations, Regulation 231/97 made under the Conservation Authorities Act (June 18.1997) was filed with the Registrar of Regulations on June 19,1997 and subsequently published in The Ontario Gazette (27/97). This Regulation amended Ontario Regulation 139/96 and clarified that 30 days notice was required for a notice of a meeting dealing with the non-matching levy". It also indicated that such notice "must be accompanied by the financial information relied upon in support of that levy". This "financial information" obviously is the budget. Evidence was submitted by Mr. Macnab that this action was taken as required.

Finally, subsection 2 (3) of the Act requires that the members vote and goes on to provide that authority to the members. The section further states that the appointed members are to "generally act on behalf of their respective municipalities".

The words "generally act on behalf" appear to be the relevant portion of this subsection. The Oxford Dictionary - Seventh Edition defines the word "generally" as follows:

adv. in a general sense, without regard to particulars or exceptions

The Canadian Law Dictionary (Barrons - Fourth Edition) does not define the word "generally" but refers to the term "generic" as

A term referring to a group or class of related things, whereas specific is limited to a particular, definite or precise thing.

The tribunal finds that the interpretation placed on Subsection 2 (3) of the Act advanced by the appellants, goes beyond the general to the specific. A member must act for the common good (general) based on the particulars (specifics) of the Conservation Authorities Act. There is no wording that states or implies that a member must act if and as directed by a local municipality within the Act itself. The members who abstained had the right to do so and they acted in an arguably appropriate manner in order to uphold their belief in the work that they had done for and on behalf of the Authority, viewing that work as for the common good of all participating municipalities. As a result, the tribunal finds that "certain appointed members" did not violate subsection 2 (3) of the Conservation Authorities Act.

Issue 2

Were the Authority members and the member municipalities provided with adequate information concerning the proposed budget and possible capital expenditures as they might relate to "benefit derived" ? Was there sufficient time allowed to make a judgment about the validity and advisability of the proposed budget? Does the tribunal have any jurisdiction over the financial status of taxpayers?

With the significant reduction in Provincial Government funding in recent years, the tribunal recognized that the KRCA, along with other Authorities, faced serious problems. A report prepared by the KRCA staff and entitled Situation Analysis and Options for the Future was presented to the Authority on January 17, 1996. (Ex 7) in anticipation of these problems. The report provided several options and analyzed these options. Suffice it to say that the Authority voted to accept the option labelled "scaled down model".

The scaled down model acknowledged that the Ministry of Natural Resources would have minimal involvement in program delivery in the future and that the municipalities would then have more autonomy over and added responsibility for all matters pertaining to natural resources management. The proposal outlined methods of closer communication and consultation with the participating municipalities and Authority members would be charged with the reporting relationship between the Authority and their local community Councils. It was at this time that the Executive Committee was instituted in order to maintain municipal direction over day to day operations, while the number of full Authority meetings would thereby be reduced.

The report included a forecast of Revenues and Expenditures (Section 5.4). It was indicated that this was provided to demonstrate the financial viability of the Authority for a five year period based on the scaled down model. The report went on to state:

The forecast is made for purposes of this analytical document; actual budgets set by the Board of Directors may differ.

In response to the appellants assertion that this report '''guaranteed the municipal funding line be guaranteed for 5 years" (cover letter - Ex. 7), Mr. Macnab referred to the above section of the report and reiterated that it had been produced only for analytical purposes.

Schedule A (Ex. 12 - Tab 5) presented the forecasts for the five year period commencing in 1997. In each case a figure of $302,600 was forecasted as the municipal portion of the budget to be levied against the participating partners.

Exhibit 9 provided the response of the Kawartha Region Conservation Authority to the appeal of the 1999 budget. This document provided a copy of the 1999 draft budget. In addition, the tribunal had requested copies of the 1997 and 1998 budgets, which were provided through Exhibit 12, Tabs 2 and 3, respectively.

The tribunal reviewed the three budget presentations and found that all three basically followed the same format. All Revenue Sources were listed and the various areas of Expenditures were divided into the following eight categories:

  • Land Use Planning
  • Environmental Monitoring
  • Flood Forecasting
  • Liaison and Partnerships
  • Conservation Information
  • Conservation Lands
  • Corporate Services
  • Appropriate to reserves

Each of these categories had direct labour, overhead, supplies, utilities, travel and special costs broken down. In the case of the Conservation Lands, however, only the overall category budget was included. The budget document does provide written comments for each of the categories. Partnership arrangements with Community Groups and Corporations are mentioned. The report notes that the KRCA manages four properties including the Ken Reid Conservation Area. Pigeon River Headwaters Conservation Area, Fleetwood Creek Natural Area and Dewey's Island Natural Area respectively. The tribunal noted that the budget figures for each of these areas were not included.

The Municipal portion of the 1997 and 1998 budgets was $302,600. The overall budgets were higher than was forecasted in the 1996 Situation Analysis report of , $304,600.00, showing $327,400 in 1997 and $338,600 in 1998. The 1998 budget year showed a deficit of $13,000 causing a total expenditure of $351,600. The tribunal could not determine how this deficit was dealt with in the 1999 budget, nor where the deficit was incurred. It is assumed that the actual expenditures were close to the budget figures, but it would seem prudent for the Authority to have indicated where the deficit was incurred and how it was being dealt with.

With regard to the 1999 budget, the Municipal Funding portion of the budget has increased by $8,700.00 or 2.9%. The budget document indicates that this is the first increase in this funding source since 1984 and it appears to be directly attributable to an increase in demand for land use planning as subdivision proposals increase in the area, and to cost increases for environmental monitoring and flood forecasting as more responsibility is downloaded from both Provincial Ministries and Federal Departments. Three of the budget categories actually show a decrease in the 1999 budget as compared to previous years.

The appellants outlined their concern about the budget process in their second "Reason for Appeal" ( Ex. 6) in which they state that the 1999 budget document (Schedule 1) shows only budgeted information for 1998 and 1999. They state that they believe that the Authority should show:

  1. Prior year budgeted revenue and expenses
  2. Prior year actual revenues and expenses
  3. Current year proposed budgeted revenue and expenses

The tribunal's review of the budget indicates that both (a) the prior year budget (1998) and (c) current year proposed budget (1999) are outlined quite clearly. Only the actual figures, plus the disposition of the deficit from 1998 are not provided. The tribunal suggested future action on these matters. Mr. Macnab indicated that this information was always available to the municipal Councils when requested.

Mr. Dunn requested that Mr. Macnab review the process by which the Authority budgets are prepared and approved. The tribunal's review of this evidence indicates that the full Authority usually reviews the draft budget early in December, after which it is forwarded to each of the participating municipalities for review, allowing for at least thirty (30) days for a response prior to any budget vote. This thirty day review procedure is in keeping with the guidelines of the AMO-ACAO Protocol.

In the case of the 1999 budget process, there was a delay which put the draft budget before the full Authority on January 20th and distribution to the municipalities occurred the next day. The budget vote took place at the full Authority meeting on February 24, 1999, a full thirty-five (35) days after the Authority approved the draft budget for distribution. The "validity and advisability" of the budget is a matter for each Council to deal with in their deliberations, but it is clear that the Protocol was suggesting that municipal councils should deal with these matters in a timely fashion and the framers of the guidelines found that thirty days should be sufficient. Based on these facts, the tribunal finds that the Authority provided the municipalities with sufficient time to review the budget prior to the February 24th vote.

With regard to the matter of "adequate information" , it was noted by Mr. Macnab that each of the municipalities were notified that staff, upon request, would attend a Council meeting to discuss the proposed budget, but no requests were received. No evidence was submitted to indicate that this was not the case. There were no requests for actual 1998 figures. There were no requests for details about the various costs associated with the individual Conservation Areas. Furthermore, there were no requests made for details on capital expenditures. Mr. Dunn indicated that this information was often difficult to obtain from the KRCA, but since no evidence of requests were submitted, the tribunal cannot accept this criticism as fact.

Based on the review of the budget documents themselves and the fact that no evidence was provided showing that further information was required by any of the member municipalities, the tribunal finds that adequate information was, in fact, available to the member municipalities to make an informed decision.

The issue of "benefits derived" was raised by the appellants in relation to the KRCA budgets. Mr. Macnab outlined the policy of the Authority as one which viewed the Authority programs as benefiting the community as a whole, as opposed to providing a specific benefit for one or more of the municipalities. The Ken Reid Conservation Area was mentioned as probably providing more benefit to the citizens of the Town of Lindsay because of its proximity to the town, but the Authority believes that all the citizens of the area have a right to use this Area and in fact, do use it as area wide open space. The policy of benefiting the whole has been outlined in the budget documents for many years. The tribunal is aware that many Conservation Authorities have this policy with regard to Conservation Area lands, unlike specific flood control projects.

Since the policy of overall benefit certainly appears to be and has been the policy of the Authority for many years, there would be no need to carry out any analysis to show the "benefits derived". No evidence was put before the tribunal in the form of municipal resolutions which show that this policy had been challenged by any of the local municipalities in their Council forum or in the Authority forum. In addition, Mr. Scott, on behalf of the respondent, indicated that a municipality most definitely could appeal to the Ontario Municipal Board (subsection 25 (2) of the Act) if they disagreed with the apportionment of a "project" as is outlined in the Conservation Authorities Act, but pointed out that the appellants had not mentioned any project in its reasons for appeal, nor had they produced any evidence to indicate that the Authority had undertaken a project in an improper manner. The tribunal accepts Mr. Scott's comments in this regard.

The tribunal does not find anything in the Conservation Authorities Act that would preclude this policy of "benefiting the whole community" with regard to Conservation Area lands. Since the Authority does not have any flood control structures, there may never have been any projects of a capital nature which would have required a "benefits derived" study.

The tribunal notes that subsection 26 deals with capital expenditures, stating that:

(2) The portion of the money so required that each participating municipality shall raise be in the same proportion as the benefit derived by each such municipality bears to the total benefit derived by all participating municipalities.

It has been noted that no evidence was submitted regarding any proposed capital expenditures that might have required apportionment. Mr. Macnab indicated in his evidence that the proposed purchase of a four wheel drive vehicle was not a capital expense and not part of the budget, since it was to be paid for from a reserve fund established for the replacement of vehicles, etc. Mr. Macnab did say that the reserve fund dollars were secured through the budget process in the form of "travel" costs and in the case of the Conservation Lands budget category, through vehicle and equipment usage. The tribunal understands that this is a common and prudent method of financial management which places actual costs for transportation against each program area, but reserves money for future replacement.

Therefore, the tribunal finds that the Kawartha Region Conservation Authority has not violated Subsection 26 of the Conservation Authorities Act with regard to any capital expenditures which would have required a 'benefits derived' analysis which would have required a levy apportioning.

With regard to the "financial status of taxpayers", the tribunal finds that this issue is not within the purview of the tribunal, but remains a responsibility of the municipal Councils and their Boards and Commissions. If the appellants have some suggestions to make to the Authority which might improve the budget process, there are natural channels for this to occur through Council resolutions and the member representatives to the Authority.

Issue 3

Did the voting process on the 1999 budget comply with the regulations and/or Administrative Procedures of the Kawartha Region Conservation Authority and the Conservation Authorities Act?

The KRCA's Administrative Procedures (Ex. 12 - Tab 11) indicate certain matters that are relevant to any vote taken by the Authority. Since the budget leads to the levy, the vote is "weighted" according to the Discounted Equalization Assessment which is determined from the information provided annually by the Ministry of Revenue. (Subsection 27. (1) Conservation Authorities Act.) A budget vote must be recorded and weighted as outlined. Each members vote has a weighted value and it is the weighted value of the members present that is used to determine the outcome of a budget/levy vote.

The procedures dictate that a quorum at any meeting "consists of one-third of the members appointed by the participating municipalities" (section B-1). At the February 24, 1999 meeting, eighteen (18) of the twenty-one (21) members were present, representing 87.8974% of the weighted vote capacity. Three (3) members were absent representing 12.1026% of the weighted vote capacity. It is quite clear to the tribunal that a quorum was present.

According to the Procedures, each member is entitled to one vote and the Chair shall vote with the other members on all questions. In the event of a tie, the Chair has a second vote. (section F-1). On a recorded vote, each member "will answer "yes" or "no" to the question, or will answer "present" if the said member does not wish to vote." (section F-5) It has been accepted by the tribunal that the use of the word "abstain" by two members of the Authority instead of "present", in effect had the same outcome and effect whichever word was used. The tribunal noted that the "official" recorded vote sheet (Ex. 6) does show a column for "Abstaining". This document forms part of Resolution 29199 in the Minutes of the February 24, 1999 meeting.

The tribunal also noted that Robert's Rules of Order indicate that abstentions have no effect on the calculation of the vote.

The Authority also follows the Policies and Procedures for the Administration of the Municipal Regulation for Non-Matching Levy as drafted by the Ministry of Natural Resources (Ex. 8). This document states in the second part of section 2.3., that:

"Under the Municipal Levy Regulation, a vote is carried by a Weighted Majority. Weighted majority means the vote of 51% of those present after the votes are weighted by the percentage of discounted equalized assessment for each municipality."

Section 3.0 Policies and Procedures indicates that the regulations for non-matching levies "come into effect when the voting taking place is clearly to establish the levy". This certainly was the case in this instance.

With regard to the issue of Subsection 27 (2) of the Conservation Authorities Act, the tribunal's examination of the budget document that was presented to the Kawartha Region Conservation Authority on February 24, 1999 indicated that a Schedule III (Ex. 9) was attached. This Schedule is entitled Kawartha Conservation Municipal Funding Apportionments for 1999. This document presents the apportionment percentages and the funding proposed for each of the years 1998 and 1999, respectively, for each of the participating municipalities, along with the percentage of change for each of the municipalities within the 1999 budget compared to the 1998 budget. It is quite apparent to the tribunal that the information required under the Regulations and the Procedures was provided in a clear and concise format by the KRCA within the budget document.

Since the Authority follows the policy that all its programs benefit the whole watershed as opposed to being specifically assigned to one or another area, the tribunal accepts that the maintenance costs involved in these programs would also be apportioned in the same manner.

The tribunal, therefore, finds that the proper information regarding the apportionment of the budget and the subsequent levy was provided to the members of the Authority and the participating municipalities and that the Authority abided by the Regulations, the Procedures and subsection 27 (2) of the Conservation Authorities Act.

With regard to the actual voting process, evidence was provided which outlined how each member voted. There is no dispute that the vote was correctly recorded. The dispute concerns the results of the vote. The appellants provided a chart, (Ex. 6) which was subsequently corrected and resubmitted which outlined how each member who was considered "present" voted and which members had been given direction to vote against the budget. The chart also outlined the percentages of the actual vote as well as the "estimated" percentage of the vote if the members had voted as directed.

The actual count showed 11 members representing 40.2743% of the vote in favour of the budget and 5 members representing 35.2649% opposed. Based on a 100% weighted vote, the Yes votes represented 53.3158 %. As a result, the guidelines in the MNR Policies and Procedures can be seen to have been met. The actual recorded 1999 budget Vote as approved by Resolution 29/99 forms part of Exhibit 6.

Many scenarios were put forth by the appellants and there were others that could have been put forward. The appellants stated that those who abstained had no right to do so and should have voted as directed under the Protocol. Mr. Macnab agreed that if that had happened, the budget would have been defeated. Another "what if" could be what the result would have been if the representative from the Township of Emily had been present to vote, since they were also directed to vote "No".

However, that is not what did happen. The actual vote is what counts and what must stand. The tribunal has found that the members who abstained had the right to do so since the Conservation Authorities Act does not prevent abstentions and the Protocol and MNR's Policies and Procedures are guidelines only and are silent on the matter of abstentions.

In addition, Subsection 25 (1) of the Act deals with projects and the apportionment of benefit. The tribunal reiterates that it has accepted that the whole watershed is the beneficiary of the Authority's programs and therefore, apportionment is not at issue with regards to the 1999 budget.

The tribunal, therefore, finds that the weighted voting procedure for the Kawartha Region Conservation Authority's 1999 budget was carried out and tabulated in the proper manner and that the Authority again abided by the Regulations, the Authority Procedures and Subsection 27 (2) as well as Subsection 25 (1) of the Conservation Authorities Act in so doing.

Issue 4

Did the Authority follow the Regulations with regard to the apportionment of the levy?

The tribunal is of the opinion that this matter has been adequately dealt with under the Issue 3 findings, but to reiterate, the tribunal reviewed the budget presentation and found that the documentation met all the guidelines and regulations as set out in the Conservation Authorities Act, the Authority Procedures document and the Ministry of Natural Resources draft Regulations for the Non-Matching Levy for Conservation Authorities.

A copy of the letter to all municipalities from Mr. Macnab (initial submission) was the only evidence provided by either party regarding the follow up process whereby the Authority must provide notification to each municipality by registered mail of the approval and the apportionment to each municipality of the budget in levy form. This was raised only as an issue by the appellants in reference to Subsection 25 (1) of the Conservation Authorities Act. As a result, the tribunal views this matter as a non-issue.

The tribunal, therefore, finds that the Kawartha Region Conservation Authority followed all the required Regulations with regard to notice and apportionment of the 1999 non-matching levy, based on the approval by the KRCA of its 1999 Budget through Resolution 29/99 dated February 24, 1999.

Issue 5

What is being appealed - the budget or the levy? Does the tribunal have jurisdiction regarding this issue?

Letters were received in the Office of the Mining and Lands Commissioner from the appellant municipalities in the following sequence:

  1. The Village of Bobcaygeon, the Township of Manvers, the Village of Omemee, and the Township of Verulum, dated March 22, 1999, appealing the 1999 KRCA Budget. A report was also submitted with the appeal notice outlining the reasons for the appeal. This report was substantially the same as the "Reasons for Appeal of the 1999 KRCA Budget" submitted by the appellants to the Commissioner's Office on April 27, 1999 and marked as Exhibit 6. The Council resolution from the Township of Verulam was attached.
  2. The Township of Emily by letter, dated March 25, 1999, including a resolution of Council dated March 22, 1999, appealing lithe 1999 Kawartha Conservation budget as per Section 27 of the Conservation Authorities Act".
  3. The Town of Lindsay by letter dated March 26.1999 appealing the 1999 levy of the Kawartha Region Conservation Authority based on a resolution of Council on March 22,1999, and

The issues that were raised by four of the appellants in their initial appeal letter and previously dealt with by the tribunal can be briefly stated as follows:

  • the adequacy of the information supplied to the Municipalities and Authority members;
  • the contravention of Robert's Rules of Order and the right to abstain when directed how to vote;
  • the validity of the voting process on the budget;

The issues relating to the outcome of the discussion that occurred at the Authority meeting of February 24, 1999 were not discussed by the appellants at the hearing. The tribunal noted from the Minutes of the meeting (Ex. 6) that there were no resolutions put forward regarding any aspect of the budget except a resolution to approve same.

In addition, no evidence was submitted, except what appeared in the Minutes of the February 24, 1999 meeting, concerning the issue of the cost of the dissolution meeting and how those costs were dealt with as referred to on page 3 of the original appeal submission from four of the six appellants. The Minutes indicated that these costs were added to the 1999 budget from a Reserve Fund source.

The concerns expressed by the appellant municipalities reflect discontent with the operation of the KRCA. However, the tribunal notes with interest that the Authority appears to be planning a strategy to improve relations between the Authority and its participating municipalities. This strategy was outlined at the budget meeting of February 24, 1999 which is the cause of this dispute and was included in the Minutes of that meeting.

The Vice Chair, Mr. Atkins (Bexley) and member, Mr. Bailey (Omemee) put forth the following motion at that meeting which was adopted as Resolution # 30/99. (Ex. 6)

Resolved That the Board of Directors authorize the Executive Committee to undertake discussions with every municipal council within the watershed for the purpose of determining specific municipal concerns with the conservation authority; fully discussing those concerns; clearly stating the rationale for conservation programming,' and re-establishing positive municipal/conservation authority relations; and
That, the format of these discussions be determined by the Executive Committee; and
Furthermore, That, the outcome of these discussions be considered in the development of the conservation authority's 2000-2004 business plan and 2000 budget.

The Minutes went on to outline a discussion on the governance model of the Authority remarking on the perception of the Executive Committee as an "inner circle", the possible reduction in costs by the possible doubling up of members and the rotating of meeting locations. This discussion went on to state:

More involvement from the members and greater understanding might be achieved if consideration were given to informal social times outside the regular business meetings. These matters will be considered by all members and discussed further at the next meeting.

Whether the above resolution and suggestions have been acted on is not known. The appeal to the Mining and Lands Commissioner may have side tracked the direction given. This appeal is not the usual kind of case that comes before the Mining and Lands Commissioner. These cases usually involve subsection 28 of the Act, rather than subsection 27. The appellants and the respondent have an ongoing relationship and must continue to work together, so it important that a cooperative spirit exist. The tribunal commends the members of the Authority for putting forth this positive strategy and direction and hopes that the 1999 year has seen some movement towards the improvement of intermunicipal relations with the Kawartha Region Conservation Authority.

This leaves only one issue to be dealt with by the tribunal, that being the issue concerning what has actually been appealed.

Subsection 27 (8) of the Conservation Authorities Act is the legislation that the tribunal must have full regard for being the legislation which is the basis of this appeal. It reads as follows:

"(8) A municipality against which a levy is made under this section may appeal the levy to the Mining and Lands Commissioner appointed under the Ministry of Natural Resources Act."

Mr. Scott, on behalf of the respondent, stated that this subsection allows only the Mining and Lands Commissioner to deal with the levy and the apportionment of same.

He stated that no evidence was submitted by the appellants that indicated that there was a dispute over the apportionment percentages, as supplied through the Ministry of Revenue, nor was there any evidence provided indicating a dispute over the process by which the Authority notified each member municipality of its "apportionment" levy of the approved 1999 budget. The tribunal concurs with this position.

In examining the evidence, the tribunal did note that the letter that was addressed to "All member Municipalities of Kawartha Conservation" re 1999 funding from Mr. Macnab and dated February 25, 1999 (Initial Submission) did state that "Any municipality wishing to appeal the budge/municipal funding decision, must do so through the Mining and Lands Commissioner within 30 days of being notified of the required municipal funding."

Mr. Macnab's reference to the "budget" is unfortunate, since it is incorrect wording according to subsection 27 (8) of the Act. However, the letter also uses the words "municipal funding" in several paragraphs throughout, in particular, when stating "The municipal funding in support of the budget was set as originally proposed at $311,300. 00". Mr. Macnab is clearly referring to the levy when he uses the words. "in support'" and "municipal funding"'.

An examination of the initial appeal letters indicates that only the Town of Lindsay placed an appeal against the levy. The other five appeal notices all speak to the budget. The documentation submitted by the appellants, providing the reasons for the appeal, referred only to the budget, not the levy. The evidence provided at the hearing also dealt with issues within the budget and not any issues with the levy or its apportionment.

It may be unfortunate that this was how the appeals were structured, but it is clear to the tribunal that subsection 27 (8) allows the tribunal to only deal with the levy and although the Act does allow an appeal on a budget relating to a "project", there was no evidence submitted regarding any Authority project which would fall under this type of legislative appeal.

As a result, the tribunal finds that the basic appeal was made against the budget of the Authority and not the levy. Therefore, the tribunal finds that it has no jurisdiction to deal with the budget as a whole, only the resulting levy.

Conclusions

The basic issue surrounding this appeal dealt with the jurisdiction of the tribunal to hear an appeal on a budget. Subsection 27 (8) of the Conservation Authorities Act is quite clear that it is only the levy that can be appealed.

The tribunal, however, has taken the view that the issues placed before it as the "Reasons for the Appeal' needed to be addressed for the future benefit of the participating member municipalities as well as the Kawartha Region Conservation Authority. It is for this reason that the first four issues under the Findings have been dealt with by the tribunal. Obviously, there were some valid issues put forward, but it is apparent to the tribunal that the Authority wishes to rectify a public relations problem and the tribunal hopes that it, along with the local municipalities, can put aside the differences that may have arisen from this appeal and move forward in a positive manner for the good of the citizens of the watershed.

Based on the findings presented, the tribunal will order that the appeal in this matter be dismissed.

With regard to matter of the awarding of costs, the tribunal reviewed all the submissions made by the respondent and some individual municipalities as well as taking note of the appellants comments. The tribunal understands that all the apportionments required under the 1999 levy have been paid by the municipalities. The tribunal further understands that the costs would have been lower if the hearing had been held in the watershed, but accepts the position of the respondent that holding the hearing in a neutral location put both parties on a more equal footing.

The appellants were quite within their rights to bring the appeal forward. The tribunal finds that it was proper and was brought without malice by the appellants. It does not, however, give rise to the extraordinary power to award costs. This power, while commonly used by the tribunal in mining matters where the tribunal acts as a Court, is only exercised by the tribunal in Conservation Authority appeals where warranted by extraordinary circumstances. The tribunal did not find this to be the case in this hearing. Each municipality and the Authority itself must bear responsibility for their own costs incurred due to this appeal.

The tribunal will deny the request of the respondent to award costs to the appellant municipalities.