Fighting Back against the Conservation Authorities Act by Jeff Bogaerts

Published June 1, 2018

Hello Everyone. On Wednesday May 23, 2018, the OLA marked a milestone in our long struggle for property rights.

In Orangeville court, I was defending a client on day 2 of a 3 day trial for alleged violations of the Conservation Authority Act.

This client was originally charged in 2016 with allegations under the CA act and we were successful in having the charges Dismissed before
trial in June of 2017.

Three months later the local Conservation Authority (CA) laid the same offences again.

It was these offences that we were in court for.

As a side note, the same client has been charged with a third set of offences (another trial later this year) on the same property for the
same offence plus a Superior Court injunction for the same property and same offence.

The local CA contends that these are continuing offences, (another issue we will deal with).

This is another fight for another day and it certainly is looking like malicious prosecution.

So … back to the story.

The defence position is that the municipal drain which runs the length of the landowner property (10 acres) was declared a municipal drain in 1911.

We state that the drain has not been maintained properly, has filled in with silt and vegetation over several decades, and therefore has
directly contributed to the problem of creating an artificial wetland.

Proper maintenance on the drain would remove the water on the property and therefore the wetland designation.

The defence takes the position that we do not have to prove that it is not a wetland, in terms of the definition in the CA Act.

The defence contends that under the Drainage Act, a landowner has the right to protect their property from flooding.

The landowner did just that by removing unnecessary peat, putting in clean fill, digging a retention pond, grading and sloping the land and
building up “dirt” along the bank of the drain so the flooding by overflow water from the drain could not enter onto private land.

Of course the local CA takes exception to this and lays the appropriate chargers … in their mind.

The defence is taking a different approach to this situation by using the right to defend ones property from flooding and making it a
permanent solution.

This could be pivotal in circumstances where property owners are adjacent to a drain, water body or water course.

This falls into the category of Riparian Rights, but not exclusively.

Sand bagging a property from flooding is one thing. After the flooding the sand bags are removed and you get ready for the next flood.

The defence is, why not put in a more permanent solution rather than “sandbagging” as required.

It seems, that when this concept was put forward in cross examination to the local CA, sandbagging did not require a permit but a
permanent solution did.

If the permanent solution creates the same result of property protection as sandbagging what is the difference between no permit and
a required permit solution?

They both work and there is less stress and potential property damage with a permanent solution than sandbagging.

What if the sand and sand bags were not available ?

What if you were not home when the flood hit ?

A permanent solution works.

Now that you have some background, you can see where the defence is going.

My Expert, who has the background work experience and qualifications to work in the construction industry and having taken a
2 day course in drainage, (more to come) became my choice.

I told the prosecution that I was bringing an Expert witness, oral testimony with a few pictures and no report.

I passed the Expert’s resume over and I received a call back that the Expert would
be challenged.

So, in the morning before trial, the prosecution and I agreed on consent to hear the challenge to the Expert before we continued the trial in
a voir dire (a trial inside a trial) to decide if the Expert would be allowed to testify.

The unknown factor occurred and the judge would not hear the Expert before we continued with trial testimony.

So the Expert had to wait.

Perhaps the judge wanted to hear more evidence that might help him understand what this case was about before hearing the Expert.

At 3:04pm we finished the second day of testimony and the Expert was called in for the voir dire.

It was a back and forth debate and certainly a give and take between the prosecution, defence and judge.

The Expert was questioned repeatedly by all three.

At 3:58pm The Expert, was declared an Expert witness for testimony in the third day of trial.

So a long, all day wait, to become declared an Expert Witness in the case.

Congratulations to our OLA Expert Witness !!!!!

We can now use our OLA Expert Witness in future similar cases. He would still have to be vetted in each case but each time it will become easier.

I believe we have a good opportunity to win on the basis of an artificially created wetland created by a poorly maintained municipal
drain.

If this works, we win, and there is no appeal, we have created case law. It is a beginning.

Artificially created wetlands … at least as far as landowners next to a municipal drain and hopefully a “water body of some kind”, can
now look to defend against a wetland designation by artificially created means.

Once the case is over we will report on the outcome in detail.

We are still in the fight. One case at a time.

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