Toyotatown Limited v. Upper Thames River Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Toyotatown Limited.

The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to permit the placing or dumping of fill on Lot 1, Block "S", Registered Plan 376, in the Township of Westminster, now in the City of London, in the County of Middlesex.

Between:

Toyotatown Limited
Appellant

and

Upper Thames River Conservation Authority
Respondent

D.W. Lewis, for the appellant
R. J. Flynn, Q.C., for the respondent

Two branches of the Thames River flow in a westerly direction through the City of London. The two branches converge and continue as one channel in the westerly part of the city. In the westerly part of the city there are bodies of water known as "the Coves."

It is believed that at one time the river formed an oxbow following a channel in a southerly and northerly direction as contrasted with its general westerly direction. However, many years ago the river ceased to flow in this part of its channel and the old channel forms three stagnant bodies of water. The flood plain of this oxbow contains approximately ninety-five acres. The westerly branch of the Coves is connected to the river by a culvert. A major street known as Springbank Drive crosses the flood plain in an easterly-westerly direction at a location that is approximately one-third of the distance between the outlet of the Coves into the Thames River and the southerly limit of the flood plain.

The appellant owns lots 1, 2, 3 and 4 and part of Lot 5 in Block S of Registered Plan 376. This land has been owned by the appellant for approximately six years and an automobile sales office and repair centre are located on the westerly part of the property. Lot 1 is a triangular lot lying between Springbank Drive, the West Branch of the Coves and Lot 2. The lot is approximately one-third of an acre in size. The easterly part of Lot 1 is composed of a fairly flat area forming part of the flood plain of the Coves. There is a bank on the westerly part of the lot at the west edge of the flat area. On the easterly edge of the flat area there is a slope to the old river bank. The westerly part of the appellant's property is at an elevation of approximately 783.2 to 784.2 feet above sea level, Geodetic Survey of Canada Datum. The elevation of the flat area of Lot 1 is 768 feet, being approximately 16 feet lower than the westerly portion of the lands of the appellant.

In 1973 the respondent, with the approval of the Lieutenant Governor in Council, made Ontario Regulation 755/73 prohibiting the placing of fill in the areas described in the schedules to the regulation. Schedule I to the regulation described part of the watershed of the Thames River from the northwesterly corner of the City of London to the Fanshawe Dam in the Township of London in respect of the north branch of the river and to the boundary between the Township of Westminster and the Township of Dorchester North in respect of the south branch of the river. These areas were shown on maps filed in the office of the Registrar of Regulations and copies of two of these maps indexed as Q-52 and P-52 were produced. The areas shown on the maps included the flood plain of the Coves and extended to elevations of 778 feet on the east and on the west of the Coves. Section 4 of the regulation authorizes the respondent to grant permission to place fill in an area described in a schedule to the regulation "if, in the opinion of the Authority, the site of the . . . . placing or dumping and the method of . . . . placing or dumping . . . . will not affect the control of flooding or pollution or the conservation of land."

The easterly part of Lot 1 owned by the appellant lies within an area shown on a map referred to in the regulation and the appellant applied for permission to place 4,629 cubic yards of fill on the easterly part of Lot 1 containing 1640 square yards. The respondent refused to grant permission on the grounds that the area was susceptible to flooding during a regional storm and in the opinion of the respondent a permit would affect the control of flooding or pollution or the conservation of land.

The decision of the respondent was appealed to the Minister of Natural Resources and by Ontario Regulation 225/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner.

The evidence of Alex Beretta, the major shareholder of the appellant, was that during its six years of ownership the subject lands had never been flooded. Harry Anthony Brouwers, an Ontario land surveyor, outlined the proposals of the appellant and indicated from Registered Plan 376 that the Coves had not formed part of the river since 1879 which was the date of preparation of the plan. This plan shows the main channel flowing in a westerly direction with the east branch not being connected thereto. A narrow channel appeared to provide an outlet into the river for the west branch. This witness had lived in the area for 12 years. During February, 1976, the river was at its highest level in his memory and measured an elevation of 756 feet.

Although the witness was not qualified as an expert in the field of hydraulics or hydrology he gave his opinion that a regional storm might give an increased elevation in the branches of approximately two feet above the 1976 elevation but that such flooding would not effect the subject lands. In his opinion, if a permit were granted there would be no effect on flooding, pollution, or conservation of lands. On cross-examination, he based his concept of a regional storm on the storms that have occurred during the past 25 years. He admitted that he had not seen the records of the respondent when he prepared the application and that the appellant had advised him that it was necessary to obtain permission from the respondent. He agreed that the elevations shown on the plans referred to in the regulation were most reliable and accurate. He accepted the elevation for the 1937 flood used by the respondent but, in his opinion, as a filled area at the north of the Coves and immediately south of the river had been in existence for many years and as local residents had indicated to him that the only flooding in 1937 was in a trailer park which lies on the easterly shore of the westerly branch across from the appellant's property there would be no problems from the proposed filling.

The evidence of Murray Thomas Kinnibrugh, the resources and technical supervisor of the respondent who has been responsible for all outside activities of the respondent outlined the philosophy of the lines shown on the plans referred to in the regulation. Severe flooding occurred in London in 1937 and according to the records of the respondent the waters of the Thames River rose to an elevation of 773 feet. In fixing the fill line i.e. the line below which fill was prohibited without a permit, the respondent added a further five feet establishing the line at 778 feet. The policy of the respondent has been to refuse all applications within the line. The only known exception was one case where the municipality had issued a building permit to the German Canadian Club and the building had proceeded without the knowledge of the respondent. A breach of the regulation had recently occurred when a contractor who was working on a sewer project for the city dumped fill in the easterly part of the flood plain of the Coves with the permission of the landowner. The respondent required this fill to be removed.

The respondent caused James F. MacLaren Limited to make a study to determine whether with flood protection devices fill could be placed in the Coves and the costs of any such proposals. Three proposals were reviewed in the study. One proposal was that the north end of the area be diked to prevent the river from flowing into the area. The second consideration was the installation of a pumping station which would pump water out of the remaining bodies of water in the Coves. The third proposal was to install limited diking around the industrial and residential construction in the flood plain of the Coves and install pumps to pump out water that might flood above the elevation of 762 feet. The minimum estimated cost of these proposals was one million dollars and the City of London considered that these costs were prohibitive with the result that none of the proposals have been adopted.

The present sources of water for these bodies of stagnant water that form the Coves are the water that flows through the culvert from the Thames River during periods of high water and surface water that drains from the surrounding lands. As a result, there is a certain amount of silting of the bed of these bodies of water.

On cross-examination the witness stated that the Fanshawe Dam had been built in 1953 for the purpose of flood control and augmenting of stream flow in the summer. Since the building of this darn there had been no flooding of the magnitude of the 1937 flood.

In examining the exhibits that were filed, several relevant elevations have been noted. The elevations of the area lying within the old channel of the river vary from 750 feet in the south to 772.5 feet at the very north where there appears to have been a considerable amount of fill placed for the purpose of making a park known as Greenway Park. A large part of the area is in the vicinity of 762 feet and this would appear to be the average elevation of the 95 acres that was referred to by Brouwers as the area of the portion of the flood plain in question. Brouwers also indicated that the area of the subject lands was approximately one-third of an acre. The proposal was to fill the subject lands to 784 feet which is 6 feet above the elevation of the fill line. Accordingly, there would be approximately 10 feet of reduction of the storage capacity and if this were multiplied by the acreage there would be 3.3 acre feet of loss of storage. Although there was no proper calculation submitted to me it would appear that on a very rudimentary calculation the storage capacity of the portion of the flood plain in question, accepting Brouwer's acreage, would be 95 acres multiplied by 16 feet i.e. the difference between the average of 762 feet and the fill line of 778 feet. This would result in a total storage capacity of 1520 acre feet. The loss of storage capacity would be approximately one four-hundredths of the capacity of the flood plain and while these figures may not be accurate they do indicate that there would be a significant reduction of the storage capacity particularly as it would only take 400 of such applications to exhaust the entire capacity.

The witness Kinnibrugh gave evidence that there were no hydraulic problems involved in this matter in his opinion and that the sole issue is the loss of storage capacity. He also indicated that the respondent had not established the regional flood line for the area but that the regional flood line had been stated to be 774 feet in the MacLaren report. If this level were adopted there would be a reduction of six feet multiplied by the acreage of the area to be filled in the storage capacity as a result of the proposed filling; i.e. 2 acre feet out of a total storage capacity of 1140 acre feet.

Counsel for the appellant argued that there was no evidence of serious flooding since 1937 and that with the building of the Fanshawe Dam since which there has been no flooding of a similar magnitude, there is no evidence of the grounds alleged by the respondent in its reasons for refusing the permit. In this regard, I do not believe that one can assume that the effect of the construction of the Fanshawe Dam has not been taken into consideration in establishing the fill line.

The normal procedure in establishing regional storm lines and fill lines such as has been done by the Lockwood Corporation and by James F. MacLaren Limited is to take into account the effect of remedial structures in determining these lines. The plans prepared by Lockwood were made in 1966. These plans show, in addition to the fill line, a regional flood line which is somewhat lower than the fill line. It is shown at an elevation of 775 feet at a location south of the subject lands. On the subject property these two lines converge by reason of the steep bank at the westerly edge of the area proposed to be filled. In the absence of evidence to the contrary I can only assume that the regional flood elevation shown on Lockwood's plans has taken into consideration the effect of the Fanshawe Dam. A similar consideration would apply in respect of the determination of the regional flood line by James F. MacLaren Limited at 774 feet. The only conclusion that can be reached from this evidence is that the Fanshawe Dam cannot be expected to prevent some of the flooding that would result from a regional storm. The dam cannot affect water that falls in the part of the watershed below the dam. Further to give effect to this argument I would have to find that a regional storm had occurred since the construction of the dam and there was no evidence of this nature.

Secondly, counsel for the appellant suggested that the proper interpretation of the regulation as enlarged by Schedule I is that the area affected by the regulation was the banks of the Thames River and in effect was the area between elevations of 750 and 755 feet. Schedule I reads as follows: "That part of the watershed of the Thames River in the County of Middlesex ". In my opinion the word "watershed" is not restricted to the area suggested. The area suggested is more in line with the concept of the bed of the Thames River. In my opinion the usual meaning of the word "watershed" is the area drained by a river and this includes an area drawn in relation to the extremities of the tributaries and the head waters of a river. The following meanings are given in the second edition of Webster's New International Dictionary: "The boundary line between one drainage area and others is rightfully termed the watershed, but it is better to call it water parting or as in America, divide."

The whole region or area contributing to the supply of a river or lake; drainage area, catchment area or basin.

"That which sheds or throws off water as from a roof." Schedule I does not include the whole of the watershed but refers merely to the portion shown on the plans. Accordingly, there appears to be no doubt that the subject lands are within the schedule.

Thirdly, counsel referred to the size of the area. I can only conclude that his argument in this regard was a suggestion that the amount of fill was insignificant. I have indicated above the only conclusions I can come to on the evidence produced on this particular point and will go no further than to indicate that I cannot consider the amount of filling proposed in this instance to be insignificant, particularly where it is not inconceivable that the cumulative effect of subsequent applications might exhaust the storage capacity.

Fourthly, counsel also suggested that with the silting in of the Coves, the Coves will ultimately disappear and will no longer form a flood plain for the storage of water. It would appear to me that the logical extension of this point is that no further hastening of the process of nature should be done through filling operations by man. If the natural situation is that a flooding hazard is being created, that hazard should not be increased by artificial filling.

Counsel further argued that the lower parts of the flood plain would be flooded long before the subject lands. This is undoubtedly true. However, it is noted from the maps attached to the regulation that there is a ring of buildings situated close to the existing fill line and if the volume of the existing flood plain is reduced these buildings which while now apparently situate in an area that is free from flooding could be made subject to flooding if part of the storage capacity of the flood plain were reduced. Although no evidence was given to me on the degree of such flooding, I cannot overlook the possibility of these buildings which appear to be in a relatively safe location being subjected to flooding in the event of a regional storm as a result of the reduction of the storage capacity.

Counsel pointed out that because of the height of the land along the banks of the Thames River, particularly at the north end of the Coves, it would be necessary for a storm of considerable magnitude such as that of Hurricane Hazel to occur before the flood plain contained within the Coves would be inundated. The evidence indicated that there was a culvert through which the water could flow although the elevation of this culvert was not given to me in evidence. There are elevations in the area referred to of 772 feet and these elevations, subject to the effect of the culvert, should restrain a considerable height of water. However, it is apparent that these elevations are two feet below the regional flood line established in the MacLaren report and one foot below the 1937 recorded level. The prime purpose of the regulation is to prevent the occurrence of situations such as those that occurred in Weston during Hurricane Hazel and incidentally prevent as far as possible the increase of risks to which existing properties are subject in storms of lesser intensity. However, the programs of conservation authorities are not designed to meet storms of lesser intensity on a short term basis but are designed to meet storms of Hurricane Hazel significance or the hundred year storm and the prime purpose can only be achieved by observing precautions related to these standards.

Lastly counsel argued that there was an element of arbitrariness or a lack of exercise of the discretionary power of the respondent contained in section 4 of the regulation and that the continuous refusal to recommend permission where the land is situate within the flood plain is a failure on the part of the respondent and its officials to properly exercise its jurisdiction. In this regard, Mr. Flinn pointed out that the regulation is firm and prohibitory in its nature and accordingly the primary consideration of the regulation is the prohibition of filling in the scheduled areas. He pointed out that the significant words respecting the exercise of the discretion are: "if in the opinion of the Authority . . . . " and in the absence of the respondent being satisfied it properly refused the application.

The raising of this point was not without merit. The evidence of the witness Kinnibrugh was that his recommendation to the executive committee of the respondent on any application to place fill within the area described in Schedule I of the regulation would be against the issue of permission for the reason that such filling would be contrary to the regulation. In this regard the passage on pages 3-100 and 3-101 of the Article entitled Administrative Law 1 C.E.D. (Ont. 3rd) reads, after dealing with the point of bad faith,

. . . . In addition, there must be a genuine as opposed to a purported use of discretionary power. This means that the decision-maker charged with the taking of the decision should personally exercise the authority conferred upon him and should neither act under dictation from some person not charged with the exercise of the discretion nor delegate the discretionary power to another. Additionally, the discretion should be exercised in relation to each individual matter coming before the decision-maker and should not be automatically determined or even fettered by reason of a rigid policy laid down in advance. Of course, the laying down of general guidelines and principles for future action by a statutory decision-maker is not objectionable so long as he still considers the merits of each individual matter for decision in the light of those guidelines and principles and is prepared to admit of exceptions to the general policy in appropriate cases."

McGillivray, J.A. in the case of Re Hopedale Developments Limited (1965) 1 O.R. 259 stated the principle as follows at pp. 263 and 264,

The right of an administrative tribunal to formulate general principles by which it is to be guided is undoubted and has been considered upon many occasions in the Courts, particularly in cases dealing with the issuing of licences. Numerous examples of this are referred to in Robson, Justice and Administrative Law, 2nd ed., p.297; and in S. A. de Smith, Judicial Review of Administrative Action (1959), p. 184, the learned author, quoting authorities therefore states:

It is obviously desirable that a tribunal should openly state any general principles by which it intends to be guided in the exercise of its discretion. The courts have encouraged licensing justices to follow this practice.

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. This principle has been well stated by Bankes, L.J., in The King v. Port of London Authority, Ex p. Kynoch, (1919) 1 K.B. 176 at p. 184:

There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes . . . . ."

This principle was approved by Jackett, C.J. in the case of "In re North Coast Air Services Limited" (1972) F.C. 390 involving the Air Transport Committee of the Canada Transport Commission. In dealing with the same point in relation to the Mining Commissioner MacGillivray, J. A. said in the case of Re Armstrong and Canadian Nickel Co. Ltd. (1970) 1 O.R. 708 at p. 713,

"The appellant's submission (sic) is that prior to the hearing before him the Commissioner had laid down a policy relating to appeals from forfeiture whereby, if work deficiencies existed, no relief would be granted and, this being such a case, he had given no real consideration in the judicial hearing to the evidence adduced at that time. Reference is made in this regard to evidence that prior to the launching of this appeal the solicitors for the appellant wrote the Commissioner of Mines a letter in which, after outlining certain facts, an application for relief from forfeiture was made. In reply the Commissioner stated that the policy of the tribunal had been to entertain such an application only where the working conditions or a substantial amount of those prescribed by the Mining Act had been met. As this condition had not been met he refused the application. The appellant relies upon this correspondence to substantiate the submission that the Commissioner had prejudged the issue and that upon the hearing the full merits of the case had not been considered. Counsel, it is to be noted, brought this correspondence to the attention of the Commissioner at the hearing asking that he divest himself of the previous opinion and that he deal with the matter on the evidence. This the Commissioner assured him he would do.

Had the Commissioner in fact not proceeded as he had promised, he would obviously have failed to observe the provisions of ss. 138 and 144 of the Act. To lay down for himself, however, some policy as a general guide in such matters was not in itself improper."

As this point is of a judicial nature, I will deal with this point from a judicial approach. It may be noted, in examining the legislation and regulation involved to determine the jurisdiction of the respondent, that the enabling legislation for the regulation in question is clause f of subsection 1 of section 27 of The Conservation Authorities Act, R.S.O. 1970, c.78, as amended by subsection 3 of section 8 of The Conservation Authorities Amendment Act, 1973, which reads as follows:

  1. - (1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,
    . . . . . .

     

    1. prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill."

The relevant portions of Regulation 755/73 made by the respondent are as follows:

  1. Subject to section 4, no person shall,
    . . . . . . . . .

     

    1. place or dump fill of any kind or permit fill to be placed or dumped in the areas described in the schedules hereto whether such fill is already located in or upon such area or areas or brought to or on such area or areas from some other place or places; or
      . . . . . . .
  2. Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies, if, in the opinion of the Authority, the site of the building or structure or the placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land."

It will be noted that the power of a conservation authority to make a regulation respecting fill is qualified in two ways. Firstly, it is limited geographically to defined areas that must be described in the regulation. Secondly in the determination of a defined area, the conservation authority must make a decision, which can only be a legislative decision, on the issue that in the defined area the control of flooding or pollution or the conservation of land may be affected by the filling. However when the administrative decision, which is the exception to the legislative, in the broad sense of including a regulation and other delegated legislation, enactment is made the significant words are "will not affect". The intent of the Act and the regulation combined is that the regulation may create a general prohibition in an area where the test can only be one of possibility but in the application of the regulation the rights of property owners to exercise the rights of ownership should not be affected completely and a consideration must be given to the balance of probabilities in respect of the possibility covered by the regulation. Two obvious cases of the application of the exception are where the regulation itself is made applicable, but validly made applicable, to an area that includes a parcel of land that while on broad possibilities may be affected, on a detailed consideration would not be affected upon a consideration of the balance of probabilities and, secondly, where through a method or procedure adopted the probable effect can be removed.

Had it been established that the executive committee of the respondent had relied on the view expressed by the witness, it would be clear that the legal principle under discussion had been violated. However, there was evidence produced before me, which if it had been before the executive committee, would in my opinion have justified it in coming to the decision it came to apart from the recommendation of its officer. In other words, had the basis of the decision been that merely because the land in question fell within the area described in the regulation, the owner automatically was not entitled to permission, the decision would be questionable. Such an approach makes the provision of the regulation respecting permission completely meaningless and if such had been the approach, in my view the decision of the executive committee would have fallen within the line of cases in which judicial relief was provided. The reasons given by the respondent were other than this reason suggested by its officer and I can only conclude that in fact the respondent in considering the case did not fall within that area for which judicial relief might have been granted. The respondent could not have given the reasons it gave if it had followed the approach suggested in evidence and its reasons reflect that consideration was given to matters of control of flooding which are those matters that the regulation contemplates it considering.

I have reviewed this case from the administrative approach in addition to the judicial approach. Counsel for the respondent submitted, in effect, that the consideration should be of the latter nature in that he submitted that the respondent had provided a hearing, had reviewed the evidence and had come to an opinion which should not be overruled. In my view this judicial approach is not the approach contemplated by subsection 2c of section 27 of The Conservation Authorities Act, as enacted by subsection 4 of section 8 of The Conservation Authorities Amendment Act, 1973, which reads as follows:

  1. - (2c) 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."

In my opinion, the appeal contemplated can only be an administrative appeal. The tribunal to which the appeal is made is the Minister of Natural Resources, who is obviously an administrative tribunal and not a judicial tribunal. There is no qualification of the nature of the appeal and the only conclusion that can be reached from the section is that the Minister, an administrative tribunal, is given the responsibility of making an administrative review of the decision through the device of an appeal. With the assignment of the powers and duties of the Minister to this tribunal, this tribunal in exercising these powers and duties exercise an administrative as contrasted with a judicial, function and should go further than merely apply a judicial approach to the application of the administrative exception by the respondent.

The evidence indicates that the appellant proposes to apply to its use a significant, if not a substantial, portion of the storage capacity of the unusual flood plain associated with the ancient part of the channel of the Thames River, which presently provides a measure of protection for the landowners bordering the flood plain of this part as well as the flood plain of the main channel. Such a reduction of the capacity and any similar reductions which might be obtained on the strength of granting permission in this case create a risk that does not now exist in respect of these properties in the event of a regional storm. In addition, the reduction of the storage capacity in this more or less isolated flood plain would have an effect on existing building within the flood plain by increasing the height of flooding from storms of less than regional storm dimension. Many properties in this part of the flood plain are subject to flooding in storms of lesser intensity and with a reduced storage capacity, these properties would be subject to increased flooding.

One recognized method of establishing that a proposed filling will not affect the control of flooding is an application of the cut and fill principle or as it is now referred to, the stage storage principle. Under this principle the loss of storage capacity is replaced with new storage capacity of equal volume at an equal elevation. The appellant did not suggest that this principle was applicable nor can I envisage the application of the principle to the property in question.

In conclusion, I can come to no other decision than the decision reached by the respondent in this matter. As this case does not fall within an recognized exception, there is no ground for allowing the appeal.

I do hereby order that this appeal be and is hereby dismissed.

There shall be no costs payable by either of the parties.

Dated at Toronto this 5th day of May, 1976.

Original signed by G. H. Ferguson, Q.C.
Mining And Lands Commissioner.