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Friday, September 28, 2012

Drainage Tribunal decides it has no jurisdiction to rule on prescriptive easement rights

In a recent drainage appeal case, the Agriculture, Food and Rural Affairs Tribunal has decided that it does not have jurisdiction to determine property and prescriptive rights; this jurisdiction rests exclusively with the Ontario Superior Court of Justice pursuant to Sections 97 and 100 of the Courts of Justice Act and, on a limited basis, with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.

One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement.  The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property.  The building up dammed the water, causing drainage problems.

The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority.  It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.

Read the decision at: David Adams Municipal Drain.