Drainage Petition Fails Over Area Requiring Drainage

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

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)

Farm bridge collapses beneath sprayer - who is at fault?

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

In 2017, a custom sprayer operator from a local farm supply company was crossing a private bridge on a farm with a self-propelled sprayer when the bridge broke.  The sprayer fell into the river that ran beneath the bridge.  The operator was trapped underwater but managed to escape his machine.  The sprayer sustained very significant damage.  Over the course of 11 days in 2023 and 2024, a trial was held in the Superior Court of Justice to determine who was at fault for the incident and what compensation might be owing for damage to the sprayer.  A decision was rendered at the end of March this year.

The sprayer involved in the case weighed over 15 tons when empty and had 100-foot booms.  It had been purchased in 2014 for just under $343,000.  The operator of the sprayer was a long-time employee of the farm supply company and had operated the sprayer (and only that sprayer) for four years.  He had finished spraying one field on the customer’s farm and was moving to another field across the bridge when the collapse occurred.  The sprayer was about two-thirds of the way across when wooden planking broke beneath the sprayer’s front right tire.  The sprayer rolled completely and landed upright in the deep river below.  The cab was submerged and quickly filled with water, but the operator found a way out.  He escaped with cuts to his hands from broken glass.

The farm bridge had originally been constructed in the early 1900s by the same family that owns and operates the farm today.  In 1980, the bridge was rebuilt with concrete abutments placed at each end of the bridge.  The river was spanned using five steel beams spaced to create a supporting structure 10-feet-wide.  A wooden deck was placed over the beams with wooden planks running parallel with the beams on each side of the deck to hold the deck together.  In all, the wood deck stretched 57 feet from one side of the river to the other.  The deck extended in an overhang of approximately 3 feet beyond the edge of the steel beams on each side of the bridge.

No building permit was required for the bridge; the only legal requirement for the private bridge was that it be high enough above the river to allow water to pass under the bridge if the river flooded.  The unchallenged evidence of the farm family was that the bridge was crossed between 40 and 50 times a day by large-sized farm equipment weighing from 15 to 40 tons. 

After the bridge collapse, the sprayer sat mostly submerged in the river for 10 hours.  It was extricated from the water and taken back to the equipment retailer for an assessment of the damage to the machine and an estimate of the cost of repair.  A consultant engaged by the insurer for the farm supply company didn’t believe the sprayer was a write-off; he thought the unit could be repaired for roughly $332,000 including taxes.  The cost of a new replacement sprayer was over $435,000.  The insurer gave the farm supplier the following options: 1) repair the sprayer; 2) purchase a replacement sprayer of similar value to the damaged sprayer; or, 3) take the estimated cost of the repairs and apply it to the purchase of a new sprayer.  The farm supply company chose the third option and purchased a new sprayer.

Having paid out the estimated cost of repairing the damaged sprayer, the insurer for the farm supply company had a right of subrogation meaning that it could now pursue a claim to recover the money it had paid out.  The insurer sued the farm corporation that owned the bridge, claiming that the farm was at fault for the collapse because: the overhang was unsupported; the bridge was in a state of disrepair including rot; the wooden deck was free to shift over the steel beams; and, there was no warning that the overhang of the wooden deck was unsupported.  The farm corporation defended the action arguing that the incident was caused by driver error.  Provided that a vehicle was kept centered over the steel beams, the farm corporation contended that the bridge could support equipment much heavier than the sprayer had been at the moment of the collapse. 

The Court sided with the farm corporation and ruled that driver error was the cause of the incident and of any losses suffered by the farm supply company.  Although there was evidence of some rot in the wooden deck of the bridge, the bridge did not break at the point of the rotted wood.  Instead, the bridge broke only where the sprayer tire reached a point two-thirds across the overhang.  If the tires had been centered on the beams, the bridge would not have collapsed whether the wood on the overhang was rotten or brand new.  The Court found that the likely explanation for the sprayer veering toward the edge of the bridge was driver inadvertence.  A warning to keep the machine in the centre of the bridge and off the overhang wouldn’t have helped: the sprayer operator already knew he needed to keep the vehicle centred when crossing the bridge.  The insurer’s subrogated action for damages was dismissed.

Read the decision at:  2025 ONSC 1996 (CanLII).

 

Dump Trucks are not Ubers

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

A case decided in the Ontario Court of Justice in 2024 holds some valuable lessons for landowners and commercial trucking operators.  The decision resulted in convictions for a trucking company under the Environmental Protection Act – that was the quasi-criminal part of the story.  In the background, it is likely that the circumstances of the case will also give rise to civil claims against some of the parties involved.  The landowner is now confronted with huge potential costs.

Back in 2020 or so, the owner of a 36-acre rural property obtained a permit to fill in a low-lying area of his property to expand the workable land for agricultural purposes.  It’s not clear what initiated this, but the common-law partner of the owner was approached by the principal of a landscaping company offering to source fill to be used on the property.  The “soil broker” proposed a formal agreement to the landowner.  The landowner didn’t sign the agreement initially, wanting to wait to see what material was delivered to his property.  The landowner viewed the first few dump truck loads that came in and the fill appeared to be clean fill – exactly what he wanted.  That was on October 30, 2020.

The landowner was away on business on November 5 and 6 when more trucks arranged by the soil broker came to the property.  On November 6, the owner’s partner called him in a panic to explain that personnel from the Ministry of the Environment, Conservation and Parks (“MECP”) had attended at the property and told her that the material that was being delivered was not appropriate for the site.  The owner arrived back at the property late at night on November 6.  He went out to the fill area with a flashlight and could see that the material deposited contained rubber, tires, building debris, pink plastic from insulation, shoes, wood, metal and various pieces of garbage.

The evidence before the Court showed that some of the fill brought to the site was clean but much of the fill was waste from a particular property where there had been a historic unapproved landfill and where old industrial waste was mixed with the soil.  That source property could not be developed by its owner until the waste was eliminated.  Apparently, the soil broker was going to help that owner solve its problem with the historic waste by moving the waste to the 36-acre property and using it to fill in the low-lying area.  In all, 199 truckloads of material were brought to the landowner’s property through trucking arranged by the soil broker.  The landowner testified that, as of the date of the hearing before the Court, 167 loads-worth of waste-containing material probably remains.  He’s afraid he’ll go bankrupt if he has to haul the material away to a proper waste-disposal site.

The hearing before the Ontario Court of Justice was a trial on charges laid against the soil broker and the trucking company that had delivered the waste material to the landowner’s property.  Both parties were charged under the Environmental Protection Act with depositing waste on land that is not a waste disposal site and with operating a waste management system (which would include transporting waste) or waste disposal site without authorization under the Act.  The soil broker did not attend the trial, which proceeded on an ex parte basis against him.  He was convicted on both charges in respect of the November 5 and 6 delivery dates. 

The trucking company that delivered the waste to the landowner’s property did attend the trial and contested the charges.  The trucking company argued that other trucking companies were involved, that the MECP could have done more to stop the dumping, that the landowner should have been charged, etc.  One final argument made by the trucking company was that “the dump truck industry operates like Uber, renting out trucks and drivers to customers and that the responsibility of the trucking company is limited only to providing the trucks and drivers and has nothing to do with what is being hauled.”

The Justice of the Peace conducting the trial rejected all of the trucking company’s arguments as to why it should not be convicted.  She explained:

Dump trucks are not Ubers. There is a legal and regulatory framework that applies to dump trucks that choose to transport and dump waste. A dump truck company is expected to know what these legal requirements are and to ensure that they obtain the appropriate authorizations if they engage in this activity. If they do not, they should be taking steps to ensure they do not transport waste. This is their obligation under the law. Full stop. They cannot simply excuse themselves from legal and regulatory requirements by ignoring them. They bear the legal risk if they choose to do so.

The lesson for trucking companies is clear – ignorance of what is being hauled is no defence to a charge for transporting waste without proper authorization.  The lesson for landowners might be to refuse the importation of any fill to a property without personally ensuring that the fill is appropriate and can legally be deposited.  There will no doubt be a cost to achieving that level of assurance.  However, the cost of having your property turned into an illegal waste dump will be far higher.

Municipality cuts down abandoned orchard trees deemed noxious weeds

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

According to Ontario’s Weed Control Act, “every person in possession of land shall destroy all noxious weeds on it.”  The owner of land is deemed by the Act to be in possession of the land.  Provincial and municipal road authorities are deemed to be in possession of road allowances.  Noxious weeds are those that are prescribed in the Regulation made under the Act (including giant hogweed, poison-ivy, leafy spurge, sow-thistle, ragweed, etc.) and other plants that may be deemed to be a noxious weed (called a “local weed”) in a by-law passed by a municipality.  The council of upper-tier municipalities (counties, regions, cities) and some other municipalities are required by the Act to appoint one or more area weed inspectors to enforce the Act.  Only municipalities that have appointed a weed inspector may pass a by-law deeming other plants to be noxious weeds.

Weed inspectors are empowered to enter any land and buildings (dwelling houses excepted) between sunrise and sunset for the purpose of searching for noxious weeds and weed seeds and may also inspect implements, machinery, vehicles, crops and other plants.  Where access to a property is denied, the weed inspector can obtain a search warrant without prior notice to the owner or occupier of the property.  The inspector may order a person in possession of land to destroy noxious weeds or weed seeds.  If the person in possession does not comply with the order, the weed inspector may “cause the noxious weeds or weed seeds to be destroyed in the prescribed manner”, with the cost of the work charged back to the owner of the lands by the municipality.  The prescribed manner of destroying noxious weeds includes pulling or removing the plants from the soil, cutting the roots or stalks of the plants, ploughing or cultivating the soil, or treating the plants with a herbicide. 

In August of this year, Justice Sheard of the Ontario Superior Court of Justice released her decision in a lawsuit brought by landowners against their local municipality after the Municipality cut down an apple and pear orchard on the landowners’ property.  The orchard was cut down in 2014 and the landowners were billed $12,800 for the work.  Their court action was commenced in 2015 and a trial took place before Justice Sheard over several days in 2022 and 2023.  The lawsuit included claims for: $1,500,000 in general damages for negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass, and nuisance; $1,000,000 in punitive and exemplary damages; a declaration that the Municipality’s weed by-law was void for bad faith, vagueness, overreach, etc.; a declaration that the landowners’ natural justice rights were violated; and an order for reimbursement of the $12,800 cost of the tree removal work.

The landowners had purchased their property in May, 2011.  The property was 20 acres in size and included two abandoned orchards of about 2.5 acres each (only one of which was at issue in the litigation).  Very shortly before the landowners’ purchase, a new neighbour purchased an adjacent farm property where he planted apple trees with a view to developing an orchard.  That neighbour had concerns that the landowners’ abandoned orchard was full of disease and insect pests that would threaten the existence of his young apple trees.  The neighbour raised this concern with the Municipality and had learned through OMAFRA that other municipalities had passed by-laws designating abandoned orchards as noxious weeds.  He requested that his own municipality do the same.

In 2013, the Municipality’s Council passed a by-law designating diseased fruit trees as “local weeds” to be treated as noxious weeds pursuant to the Weed Control Act.   A “diseased fruit tree” was defined in the by-law as “a fruit tree as herein defined, whether dead or alive, which fruit tree as part of a planting of greater than 0.25 ha (0.618 ac) and which planting is within the 375 m (1,230.31 ft) of a fruit growing operation or plant nursery operation, and which planting has been neglected from normal standards of good farming practices, such that it exhibits fruit tree disease or populations of insects which represent a reasonable threat by movement to such commercial fruit growing operation.”  A “fruit tree” included both apple trees and pear trees.

In April, 2014, the Municipality determined that the landowners’ one abandoned orchard contained diseased fruit trees and issued an order to the landowners to “bring down and burn” the apple trees within 30 days of service of the order.  Nearly four months later, the trees had not been destroyed.  In August, 2014, the Municipality moved in and had the diseased trees cut down.

Justice Sheard dismissed the landowners’ court action in its entirety.  She found that the weed control by-law passed by the Municipality was not void – it was clearly within the scope of the Municipality’s statutory authority given to it under the Act.  The Municipality followed the proper procedure in passing the by-law and the bylaw was submitted to and approved by the Minister of Agriculture, Food and Rural Affairs as required by the Act.  Justice Sheard disagreed with the landowners that the by-law targeted them in particular, commenting:

Had the plaintiffs acted in accordance with “normal standards of good farming practices” in the management of the Orchard, the Bylaw would have been of no concern to them. Indeed, had the plaintiffs acted on their stated objective to develop a commercial apple growing operation, they might well have been advocates for the Bylaw, intended to protect all fruit growing or plant nursery operations.

Having found that the by-law itself was valid, Justice Sheard concluded that the landowners’ court action must fail because their recourse was not to the Court but to the chief weed inspector appointed pursuant to the Weed Control Act.  Where a municipal weed inspector makes an order against a person in possession of land, that person may appeal the order to the chief inspector who may either confirm or revoke the order or make a new order.  The chief inspector’s order may be appealed to the Divisional Court.  In this case, the landowners did not appeal the order and were bound by it.  As the order was found to be valid, there was no basis on which the landowners could sue the Municipality for damages allegedly resulting from the operation of the order.

Read the decision at:  2023 ONSC 4540 (CanLII).