New municipal drains in Ontario are created by “petition” made to the local municipality. Pursuant to Section 4 of the Drainage Act (the “Act”), petitions may be made by the majority of the number of landowners in an “area requiring drainage”, by any one owner who owns at least 60% of the land within that area, by the municipal engineer or road superintendent where a municipal drain is required for a road, or by the “Director” appointed by the Province in the case of drains required for agricultural purposes. Where the municipality accepts the petition, it appoints a drainage engineer and that engineer must prepare a report for the proposed drain. The report includes the design and specifications of the drain as well as a table of assessments in which each participating landowner’s respective share of the costs of the drain is assigned.
Section 5 of the Act requires a municipal council that receives a petition to consider the petition forthwith and to decide whether to proceed or not to proceed with the drainage works. Where the municipality decides to proceed with the works, the municipality must appoint an engineer to examine the area requiring drainage and to prepare a report for the proposed drainage works. Pursuant to Section 9 of the Act, before making the examination and report, the engineer must hold an on-site meeting with landowners within the area and shall at the meeting: (a) determine the area requiring drainage; (b) determine whether the petition complies with Section 4 for the area requiring drainage; and, (c) where the engineer is of the opinion that the petition fails to comply with Section 4, establish the requirements for a petition to comply.
The term “area requiring drainage” is not defined in the Act. Once an engineer has been appointed by the municipality, in order to determine the validity of a petition brought by a private landowner(s), the engineer must make his or her own identification of the area requiring drainage (which may differ from the area described in the petition) and of the property(ies) lying within that area. The Drainage Act requires this confirmation of compliance with Section 4 because the legislation compels area landowners to participate in (and pay for) municipal drains. Only a landowner or landowners with a sufficient ownership interest in the “area requiring drainage” can compel non-petitioning neighbours to accept a municipal drain. The proper determination of the sufficient ownership interest places an important limit on this forced participation.
The Drainage Referee, who is a judge or a lawyer appointed by the Ontario Cabinet, is given jurisdiction under the Act to determine the validity of a petition, effectively creating an appeal from the engineer’s determinations about the area requiring drainage. A recent decision of the Acting Drainage Referee for Ontario dealt with such an appeal. The Acting Referee noted in his decision:
It is essential to determine an area requiring drainage in order to be able to apply those percentages and thus test for the validity of a petition. Once the area requiring drainage has been determined, the rest is a mathematical calculation. However, if an area requiring drainage is determined solely and simply based on the owner of a single property’s desire for a legal outlet, then what is the purpose of Section 4 of the Act? The legislature knows how to create laws that allow for single-person initiation, as in Sections 78 and 79 of the Act. However, it has not done so in relation to the establishment of new municipal drains. Careful attention is therefore required in the determination of an area requiring drainage to preserve the integrity of section 4 of the Drainage Act.
In the case before the Acting Referee, a single landowner had signed a petition for a new municipal drain to address a “low depressional area” located in part on the petitioner’s property but mainly on the neighbouring property. The neighbouring owner did not sign the petition. The engineer prepared a report for the proposed municipal drain and identified the property owned by the petitioner as the area requiring drainage (being the area within which the owner planned to install a systematic tile drainage system). The questions for the Acting Drainage Referee were whether the engineer was correct to define the area requiring drainage by reference to property ownership boundaries and whether it was correct to exclude the neighbour’s property from the area requiring drainage for purposes of Section 4 of the Act.
The Acting Drainage Referee did not foreclose the possibility that ownership boundaries might be relevant in some circumstances to the determination of the area requiring drainage, but found in this case that ownership boundaries should not have formed the basis for the engineer’s determination. Further, the engineer was wrong to exclude the neighbour’s portion of the “low depressional area” from the area requiring drainage. The engineer had suggested that the neighbouring land should be excluded because it had existing riparian access to an outlet (a nearby creek). However, the Acting Drainage Referee found that the portions of the low area on both sides of the property line had “technical access … for outlet” and neither had “reasonably feasible riparian access to that outlet.”
The result of the Acting Drainage Referee’s findings was that petition was invalid because it was not signed by 60% of the landowners of the area requiring drainage. The engineer’s report was set aside and the municipality’s provision drainage by-law was quashed. As the Acting Referee concluded:
The Engineer is entitled to great deference with respect to the question of the area requiring drainage for the purposes of section 4 of the Drainage Act, and his conclusions ought not to be disregarded except when there is clear evidence of error or unless a question of law is involved. But if his conclusion is patently wrong, it cannot stand.
Read the decision at: 2025 ONDR 5 (CanLII)
