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)

Not all Drainage Act appeals are decided on a without costs basis

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Ontario's Drainage Act provides mechanisms to municipalities and landowners to implement drainage solutions on a collective basis.  On petition by landowners, a municipality may be compelled to construct a municipal drain; a municipality may develop a municipal drain on its own initiative; an existing municipal drain may be reconstructed, improved, or maintained.  Costs associated with the municipal drain, including engineering costs, are generally shared by the owners of the lands that outlet to the drain, with each owner responsible for an amount proportional to his or her respective share of the total drainage area.

Disputes related to municipal drains are often the subject of appeals by affected landowners to the Agriculture, Food and Rural Affairs Appeal Tribunal.  Landowners may challenge the necessity for the drainage work being proposed by a municipality and its drainage engineer, the scope or extent of the drainage work, the cost of the drainage work, or the portion of the cost of the drainage work being charged to the landowner.  In the normal course, the parties to a drainage appeal before the Tribunal bear their own costs of litigation, such as legal fees and disbursements; cost awards against a party are exceptional.  However, no party should assume that an adverse cost award might not be made in the right circumstances.

The Tribunal's Rules of Procedure include the following commentary on appeal costs:

Costs are a sum of money ordered to be paid from one party to another party in order to cover only this party's expenses incurred for preparation and attending the proceeding. This may include such things as preparation and hearing time for counsel, consultant and witness fees, and travel expenses. It does not include business or personal financial losses. If the party's conduct caused such losses, however, this conduct may be included in considering a cost order.

A cost order may be made if a party requests it, if one party has in the Tribunal's opinion acted inappropriately, as in Rule 28.04. Such orders and the amount awarded are to discourage conduct that wastes a great deal of the Tribunal's and parties' time as well as other resources. Note that for matters under the Drainage Act, costs are awarded only as provided in that Act.

An order for costs is very rare. Recovery of costs is not standard as in court proceedings. It is only where the Tribunal finds that a party wrongly brought the appeal or participated unacceptably in preparation or hearing events, that an award of cost will be made. Only a party may make a request for costs. Participants, witnesses or others without official party standing can request or receive costs only in the most unusual circumstances. [emphasis added]

According to the Rules, a party to a drainage appeal may ask for an award of costs where another party has "acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances."  Conduct that might warrant an award of costs can include failing to attend the hearing, changing a position without notice, failing to prepare adequately for hearing events, failing to present evidence, acting disrespectfully or maligning the character of another party, or knowingly presenting false or misleading evidence.

In a drainage appeal decision released in January of this year, the Tribunal ordered an appellant landowner to pay the respondent municipality nearly $6,000 in costs.  The landowner had brought an appeal challenging the quality of construction of drainage works, which is a proper issue for appeal under the Drainage Act.  However, the Tribunal found that the landowner provided no reliable evidence of any quality of construction issue and, in fact, that the landowner's true complaint was about the design of the drainage works.  The design of the works was not something that could be appealed to the Tribunal by that point in time, and the Tribunal dismissed the appeal.

The respondent municipality had communicated to the landowner early in the appeal process that the appeal did not actually raise quality of construction issues, and warned the landowner that the municipality might seek costs if the appeal continued.  This communication apparently resulted in a settlement between the landowner and the municipality, but the landowner almost immediately rescinded the settlement.  In its costs decision, the Tribunal concluded that the landowner understood the deficiencies in its appeal, but continued nevertheless, "using the appeal process and potential associated costs as a negotiating tactic to get the Township to fund some or all of its private drainage works of approximately $25,000."

The Tribunal ordered the appellant landowner to pay the municipality its legal costs and engineering costs related to the appeal incurred after the failed settlement, and authorized the municipality to enter the cost award immediately on the tax roll of any land owned by the appellant assessed under the particular municipal drain at issue.  The Tribunal found that the landowner had failed to produce any evidence in support of its quality of construction appeal and, more importantly, that the landowner had unreasonably reneged on its settlement with the municipality.  But for this conduct, the municipality would not have incurred the costs awarded by the Tribunal.

Read the decision at: Ellis Drain Branch 'A' 2017.

Drainage Tribunal orders landowners to pay municipality nearly $50K in costs

The following summary of a recent decision of the Agriculture, Food and Rural Affairs Appeal Tribunal says it all:

"This Drainage Act appeal was unusual. Firstly, the quality of construction of the drainage works was challenged in circumstances where the drain was performing exactly as designed. Secondly, the Appellants’ case lacked any reliable evidence to support their challenge. Thirdly, the Appellants pursued issues that were outside the Tribunal’s jurisdiction, and did so contrary to the Tribunal’s directions.  Fourthly, the appeal was devoid of merit, and in effect frivolous.  Fifthly, shortcomings and the mounting costs were called to the Appellants’ attention before and during the hearing on more than one occasion. Sixthly, these same Appellants had previously pursued a quality of construction appeal on the same drain that another Tribunal Panel determined was unwarranted and, subsequently ordered these same Appellants to pay costs. Despite all that the Appellants pursued a costly and unsuccessful appeal hearing and want their neighbours or the taxpayers of the Municipality to pay for it.

In the circumstances of this case and for the reasons explained, the Tribunal awards the Municipality the costs of the appeal fixed at $49,536.80."

It's pretty rare that the Tribunal awards any costs, especially in Drainage Act proceedings. This decision demonstrates that there is a line that can be crossed, following which parties to Drainage Act appeals may be liable to pay costs to the successful party.

Read the decision at: Coleman Municipal Drain 2013 (RE).

Landowners succeed on appeal of assessment for municipal drain maintenance work

Little Creek Municipal Drain services a watershed in the Municipality of the Town of Lakeshore. Little Creek itself drains approximately 2,700 hectares (or 6,650 acres) of mostly farmland into Lake St. Clair.  In 2011, the Town instructed a drainage Engineer to prepare a new updated assessment schedule for Little Creek for the purposes of future maintenance.  Several landowners who farm within the watershed disputed the results of the Engineer’s new assessment schedule primarily on the basis that his ratio of “benefit” to “outlet” assessment was disproportionate and unfairly burdened their lands with a higher assessment.

On the appeal of the Engineer's assessments, the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concluded that the Engineer's method of assigning benefit assessments to the landowners relied too heavily on previous reports and not enough on his own objective determinations.  As this was a drain repair or maintenance project, the assessment process was not the same as it would be for a new drain construction.  The Tribunal said the following about the determination of "benefit" to the landowners and its role in setting the assessment of costs to the landowners:

According to the definition of “benefit” in Section 1 of the Act, benefit assessments apply to new work or improvement work where it can be easily justified that the construction, in fact, “… will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages …”. However, once that initial benefit has been paid by those lands, they should not have to pay a higher assessment every time it is maintained or repaired; that is, those lands should not have to pay over and over again for those initial benefits. Using the outlet assessment schedule is the fairest way to charge properties for maintenance and repair because, as stated in Section 23(3) of the Act, it is “…based upon the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads …” as well as the length of the drainage works used by those lands and roads.

 

For the reasons mentioned above, when both a benefit assessment schedule and an outlet assessment schedule exist within a report prepared under Section 4 or Section 78, it seems most reasonable that only the outlet assessment schedule be used for maintenance purposes, after the new or improved drain has been constructed. In this case, the Engineer has prepared a benefit schedule that totals $11,000 and an outlet schedule that totals $39,000. The Tribunal does not find the 1981 Brewer-Terry Drain Decision to be comparable as the report under consideration in that hearing was an improvement report, prepared under Section 78 of the Act, wherein the appellant’s lane crossing was being extended. It was not a report prepared under Section 76 of the Act.

 

Accordingly, the Tribunal agrees with the Appellants that, given the facts of this case, benefit assessments should not be considered when apportioning assessments for maintenance.

[emphasis added]

The Tribunal ordered the Engineer to revise the Schedule of Assessment so that assessments would be based only on revised outlet assessments (rather than on the standard categories of "special benefit", "benefit" and "outlet").

Read the decision at: Little Creek Drain (Re).

Enbridge pipelines drive up farm drainage costs

A recent case before the Agriculture, Food and Rural Affairs Appeal Tribunal dealt with a municipal drain affected by three Enbridge pipelines that cross it.  Both the main drain and Branch "A" tiles from the drain cross three Enbridge pipelines (Line 7, Line 8 and Line 9) through manholes that function as siphons.  Siphons are often the only solution (sometimes effective and sometimes not) for the installation and maintenance of tile drains when a pipeline company decides to build through the drainage area. 

The drainage engineer in this situation noted that the siphon reduced capacity in the tiles across the pipelines.  New tiles were to be installed as part of the project under review by the Tribunal; the engineer found that crossing the pipelines at the existing locations would not be feasible without siphons, but that it would be possible to cross underneath the pipelines in higher ground at the "centre location". 

The appeal before the Tribunal dealt with the assessment costs to various landowners.  The engineer had applied a modified "Todgham Method" to calculate the assessments.  He calculated the assessments on the basis of a "natural route" which would have been the assessments if the drains did not have to cross the Enbridge ROW.  He then did a second assessment for the "revised route" based on the presence of the Enbridge ROW and the additional cost to traverse it.  The "natural route" assessment was then modified in conjunction with the "revised route" assessment.

The Tribunal accepted the appeal of one landowner and reduced that landowner's assessment.  The Tribunal found that, in determining the benefit derived by the proposed drainage works to that landowner, it would have been more appropriate for the engineer simply to have made new calculations for the "revised route" rather than modifying the "natural route" calculations (which would not apply because the "revised route" was being used). 

Read the decision at: Re Wakem-Weir Drain.

Southwest Middlesex drainage case back in Court

The law decided in a recent case involving a municipal drain in the former Township of Ekfrid is not as interesting as the facts of the case.  Justice Rady made a few rulings about the applicability of limitation periods and decided that only the municipality could be the subject of a claim under Section 79 of the Drainage Act.  However, it is her rendition of the facts that will be of most interest.

Here is an excerpt with the background for the case:

[9] In 1964 the plaintiffs, who are farmers, purchased a farm of more than 100 acres located on the north side of Irish Drive in the former Township of Ekfrid. The Township has since been amalgamated into the Municipality of Southwest Middlesex.

[10] Since approximately 1897, the southerly portions of their property and the adjacent lot to the west drained into the Saxon drain. The Saxon drain was originally constructed as an open ditch, approximately eight feet deep and twenty feet wide, which travelled south from Irish Drive toward Kings Highway No. 2. The Saxon drain crossed the lands of the defendants, John Wolfe and Grant Wolfe.

[11] A second branch of the Saxon drain extended easterly along the north side of Irish Drive to the southwest corner of the plaintiffs’ property and provided the connection between the southwest portion of the plaintiffs’ property and the main drain. The Saxon drain had been effectively draining the southwest portion of the plaintiffs’ property and the southeast portion of the adjacent lot since 1897.

[12] In or about 1973, the plaintiffs applied under the Drainage Act to deepen and improve their outlet and the main drain. The Township appointed an engineer, the defendant, A.M. Spriet and Associates.

[13] John Wolfe and Grant Wolfe are said to have proposed to Spriet that a portion of the Saxon drain be filled in and replaced with a closed tile. Spriet endorsed the proposal and provided a report to the Township in February 1974, which was approved and passed as by-law number 8-74.

[14] Spriet then designed a tile system to replace a substantial portion of the open ditch. When they expressed concern, affected property owners were assured that the final plan to be prepared by Spriet would include a ditch, spillway or waterway of some kind along the course of the drain that would take excess surface water from the plaintiffs’ property and the adjacent lot.

[15] The work proposed in the Spriet report was performed by Grant Wolfe (one of the property owners benefitting from the ditch’s elimination) and supervised by the Township and/or Spriet.

[16] From 1966 until 1974, the plaintiffs had no complaints about the drainage of their land. However, after the tile was laid and the ditch filled in, they noted that no ditch, spillway or waterway had been constructed and that the plaintiffs’ property and the adjacent lot were no longer draining properly. In particular, during spring runoff and after heavy precipitation, ditches adjacent to that area of Irish Drive would fill and surface water from the adjacent lot would back up onto the plaintiffs’ property, instead of flowing into the Saxon drain, something that occurred several times a year until approximately 2001. The plaintiffs sustained damage to their property and home as a result.

[17] In 1975 and unbeknownst to the plaintiffs, Spriet had advised the Township of a“grievous” error made by Grant Wolfe when he constructed the drain because it had been installed almost one foot too high to provide an outlet for proper drainage of the plaintiffs’ property.

[18] Subsequently, Spriet and the Township authorized the construction of a connection from the plaintiffs’ tile to the main drain beneath the land owned by John Wolfe for a distance of approximately 700 feet, which was to be constructed at Grant Wolfe’s expense. This “relief drain” was intended to remedy the earlier defective construction and provided a benefit to John Wolfe. The plaintiffs were not advised of the error nor told about the construction of the relief drain until 1996. Neither the Spriet report nor by-law number 8-74 was amended to reflect the change. Notwithstanding the error, Spriet certified to the Ministry of Agriculture that the drain had been constructed generally in accordance with the plans and specifications.

[19] The plaintiffs subsequently retained an engineer, who confirmed that a deep rather than shallow waterway was required along the old course of the ditch to take away excess surface water.

[20] The initially constructed waterway in or before 1978 was billed to the plaintiffs and other property owners upstream from the Saxon drain although those costs would not have been incurred had a proper waterway been constructed in the first place. Because the waterway had not been included in the Spriet report, it was characterized as a maintenance item and did not become part of the drainage works of the Saxon drain. The waterway gradually filled in as a result of erosion and cultivation and affected property owners had no means to enforce maintenance.

[21] Unfortunately, the plaintiffs continued to experience flooding and property damage and they repeatedly complained to the Township. The Township is said to have taken no steps to advise the plaintiffs of what it knew about the source of the problem or to have it investigated and corrected.

Read the rest of the decision at: Ward v. Southwest Middlesex Municipality.

Company fined for manure discharge into municipal drain

From the Ministry of the Environment:

Shedden Company Fined $25,000 for Manure Discharge

St. Thomas - A Shedden company was fined $25,000 for discharging pig manure into the Kerstan Municipal Drain causing impairment to the quality of water.

"Polluters should be aware that the ministry's Investigations and Enforcement Branch will vigorously pursue charges when our environmental laws are broken," Environment Minister Jim Bradley.

G.H. Pennings Farms Inc. owns and operates a pig farm located in Southwold Township. The Ministry of Natural Resources received a call from a local resident regarding manure impacting a creek. The tip was relayed to the Ministry of the Environment and ministry inspectors attended the site. During the inspection, staff traced the source of the manure back to a holding lagoon located on the farm. The lab results of the water samples taken at the site showed impairment to water quality.

The company was fined $25,000 plus a victim fine surcharge of $6,250 and was given six months to pay the fine.

When can a stream create a natural severance of a property?

A case is before the Ontario Superior Court in London to determine whether a local watercourse effectively severs a property into two parts.  An application has been commenced by the Municipality of Middlesex Centre for a declaration that a stream (the Bear Creek Drain) is not a navigable waterway such that a particular property through which it flows would be severed in two.  The predecessors in title of the affected landowners had previously applied to sever their property, but the application was denied.  The current landowners then obtained an opinion that the stream created a "natural severance"; a surveyor agreed and registered a reference plan showing the lands north and south of the stream as two separate parts and denoting the stream itself as "Unpatented Crown Land".

This was done without the knowledge of the municipality; the circumstances were discovered when the landowners made an application for a building permit that would have constituted a second dwelling on the same 10-acre parcel; this would not have been permitted without a rezoning unless there was a "natural severance".

Justice Heeney has ruled that it will not be necessary for the municipality to serve its application on other landowners along the Bear Creek Drain as the issue to be determined at trial will relate solely to the specific property in question: "was the stream a naviagble waterway at the time of the original Crown grant to the current owners' predecessors in title in 1831?  If the answer is yes, then the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway.  If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including" the current landowners.

As the onus of proof will be on the landowners, Justice Heeney also ruled that they will present their case first at trial, to be followed by the municipality and then the Province of Ontario.

Read the decision at: Middlesex Centre v. MacMillan et al.

Proposed Drainage Act and Conservation Authorities Act Protocol

From the Environmental Bill of Rights Registry:

In recent years, challenges have arisen in implementing the requirements of the Drainage Act and those of the Conservation Authorities Act.  Under the Drainage Act, municipalities are required to maintain and repair municipal drains, while under the Conservation Authorities Act, conservation authorities are required to regulate interference with or alterations to watercourses, including municipal drains where applicable.

The proposed protocol (the Drainage Act and Conservation Authorities Act Protocol) was developed by an inter-agency team co-chaired by the Ministry of Natural Resources and the Ministry of Agriculture, Food and Rural Affairs, with representation from the drainage sector, agricultural sector, municipalities and conservation authorities. It is intended to improve communications, promote best practices, reduce administrative burden and streamline the permitting process under the Conservation Authorities Act related to the maintenance and repair of municipal drains. The proposed protocol does not apply to new drain construction or improvements to existing drains.

The proposed protocol contains:

a) best practices to facilitate good working relationships between conservation authorities, drainage superintendents and municipalities;
b) sets of standardized requirements for undertaking drain maintenance and repair in compliance with regulations under the Conservation Authorities Act (Standard Compliance Requirements).

Under the proposed protocol, municipalities and conservation authorities may use Standard Compliance Requirements to request or issue permission for drain maintenance or repair in place of the regular conservation authority permit application and issuance process. Conservation authorities could still require a regular permit for some activities if they determine that the activity will not be able to meet Standard Compliance Requirements, or if the standard requirements are not deemed sufficient for that activity.

The proposed protocol contains provisions for the establishment of a Drainage Issues Resolution Team to mediate discussions and recommend solutions in the event that agreement between the conservation authority and municipality cannot be reached. The proposed protocol also uses a combined notification/application form for the federal Species at Risk Act and Fisheries Act as well as the Ontario Endangered Species Act and Conservation Authorities Act into a single notification form which is sent to multiple agencies.

The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be sent to:

Rheanna Leckie
PROGRAM ANALYST
Ministry of Natural Resources
Regional Operations Division
Integration Branch
Land and Water Services Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5405
Fax: (705) 755-1276

The online comments form is at: Comments.

Court throws out damages claims related to municipal drainage repairs

The Ontario Superior Court has dismissed a claim by a landowner for damages relating to a municipal drain (the "Cazabon Drain") located on the landowner's property.  The landowner claimed damages for nuisance (for unnecessary damage caused by undue delay by the municipality to remedy a drain problem), damages for negligence (for poor quality of workmanship in relation to repairs undertaken), and damages for "intentional infliction of economic harm" and "intentional infliction of mental suffering".  These last two claims were apparently related to the harm the landowner's reputation suffered after the municipality obtained a permanent injunction against him under the Drainage Act to prevent interference with efforts to repair the drain.

On a summary judgment motion by the municipality, the Court dismissed the landowner's claims for nuisance and negligence on the basis that insufficient notice of the claims as required by Section 111 of the Drainage Act had been given.  The judge allowed, however, that the landowner could commence new claims for nuisance and negligence.  The claims for economic harm and mental suffering were dismissed outright on the basis that there was no issue for trial. 

The Court also noted in the course of its decision that claims for damages related to the construction or repair of drainage works do not necessarily have to go to the Agricultural, Food and Rural Affairs Tribunal.  The Tribunal does not have exclusive jurisdiction over such claims.  The municipality had argued in this case that the landowner's claim based on negligence should be dismissed because it should have gone to the Appeal Tribunal.

Read the decision at: Hud v. West Nipissing.

Assessed landowners argued they could have done drainage work for less

Two Southwest Middlesex landowners appealed a drainage assessment to the Ontario Agriculture, Food and Rural Affairs Tribunal on the basis that they could have done the required maintenance work themselves at a lower cost.  The Municipality of Southwest Middlesex had been petitioned by the County of Middlesex Road Authority under Section 4 of the Drainage Act to carry out various maintenance work, including the creation of an open drain.  The estimated cost of the work was $22,540.

Two affected landowners appealed the assessment of their shares of this cost.  One argued that from the beginning he had told the Municipality that he was willing to do the work required without the cost of the engineering report.  However, neither landowner appealed the work ordered itself.  The Tribunal found that the Municipality was compelled by the County's petition to have an engineer's report prepared and the work completed.  Given that the work was required, the assessment of costs could not be challenged on the basis that the work was unnecessary (or could have been done differently at a lower cost).  The appeals were dismissed.

Read the decision at: Proctor Drain.

Ontario Court orders landowners to stop blocking drainage ditch on their property

Justice Quigley of the Ontario Superior Court of Justice has ordered Steven and Joan Morrow to stop blocking the flow of water through a drainage ditch on their property in Lanark County.  The County applied to the Court for the injunctive relief after neighbours complained of flooding caused by the damming of a local drainage ditch. 

The County took the position in the case that it was a proper party (even though it was not one of the neighbouring landowners) because the blockage of the ditch created a public nuisance.  Quigley J. agreed.  He found that the attempt to distinguish between a private and public drainage ditch was irrelevant in the circumstances and that the actions of the landowners in blocking the flow of water (with result of flooding of neighbouring lands) "would be actionable even if there were no ditch". 

The Court granted a temporary and permanent injunction prohibiting the obstruction of or interference with the ditch, and made an order allowing the County to enter the property to remove the obstruction and to grade the ditch.  There was also an order for payment of $1,000 in damages contingent on the costs of the County's work.

Read the decision at: Lanark v. Morrow.

Appeal Tribunal rules that drainage engineer didn't favour downstream mayor

The McWilliam-Campbell Drain is a closed tile drain located on Lots 6 to 8 Broken Front Concession A in the Municipality of Dutton/Dunwich. The drain was originally constructed under the Drainage Act in 1965. In its existing state, the tile is comprised of approximately 525 ft (160 m) of open ditch and 2,775 ft (845 m) of closed tile ranging in size from 6" (150 mm) to 12" (300 mm) diameter. The drain outlets to the Thames River and serves a watershed of approximately 44 hectares (109 acres) on both sides of Coyne Road. The lands within the watershed are predominantly agricultural with some wooded areas.

Robert and Susan McWilliam appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) and 54(1) of the Drainage Act (The "Act") from the Engineer's Report (the "Report") dated July 22, 2010, and from a decision of the Court of Revision dated September 1, 2010. John M. Spriet, (the "Engineer") a professional engineer with the firm Spriet Associates Limited was appointed under Section 78 of the Act to prepare the Report.  The work proposed by the Engineer's Report encompasses the replacement of the lower portion of the existing 12" (300 mm) diameter tile with a new 24" (600 mm) tile, including a new crossing at Coyne Road and three new catch basins. The Engineer's estimated cost of the proposed works is $44,000 which is assessed against two affected landowners and Coyne Road.

Susan McWilliam testified that she and her husband believe the Engineer favoured the downstream landowner throughout the process, who is also the Mayor for the Municipality of Dutton/Dunwich. She said that they do not dispute that the existing drain tile has problems and that they need an outlet for their lands. However, she stated that their issues have not been addressed and that the Engineer ignored their questions and concerns throughout the process. She said that the 24" (600 mm) tile proposed by the Engineer will not fix the problems on the drain and she believes that the costs are too high relative to the benefit they will receive. She added that the Engineer's Report does not provide evidence that the drainage issues will be resolved and that costly maintenance repairs will persist even after construction of the larger tile. In further testimony directly from Robert McWilliam, he explained that their share of the costs to repair the existing 12" (300 mm) tile drain have been on average about $600 per year. He reasoned that since the new tile drain is larger, the yearly cost to maintain the new tile will also increase. Additionally, he said that they would have to make payments of $2,500 per year for the construction of the larger tile. He complained that this would be a huge burden on them.

The Tribunal found no evidence to substantiate the Appellants' claim that the Engineer favoured the downstream landowner, Cameron and Anne Marie McWilliam. The Tribunal also found no evidence that the downstream landowner, Cameron McWilliam, who is also the current Mayor for the Municipality of Dutton Dunwich, knowingly influenced the Drainage Act process. Accordingly, the Tribunal was satisfied that the Engineer's Report is a "true report" pursuant to Section 11 of the Act.  The Tribunal also found no evidence to substantiate the Appellants' claim that the Engineer did not carry out a proper investigation of the condition of the existing tile drain.

In view of the evidence, the Tribunal found that the work proposed by the Engineer's Report was reasonable under the circumstances and declined to order any amendments.  However, the Tribunal did find that the Appellants were justified in their claim that the Assessment for Maintenance is unfair.  The Tribunal did not accept the Engineer's explanation as to why his Assessments for Maintenance significantly deviated from his Assessments for Construction.  The Tribunal therefore ordered changes to the Assessments for Maintenance.

Read the decision at: McWilliam Campbell Drain.

Drainage Appeal dismissed by Agricultural, Food and Rural Affairs Tribunal

The Baird municipal drain comprises a watershed of approximately 245 hectares of agricultural and wooded lands in the geographic municipality of the Township of Turnberry, now in the municipality of Morris-Turnberry. The drain is comprised of an open channel main drain and three branch drains, Branch A, Branch B and Branch C. Pursuant to a drainage petition filed by Bill Fralick, an engineer’s report was prepared providing for the construction of a new Branch D tile drain on the lands of Donald and Marion Eadie. The Eadies appealed the engineer’s report to the Agricultural, Food and Rural Affairs Appeal Tribunal. They asked that the report be amended to provide for the construction of a new drain outside of their lands. In the alternative, if the new Branch D tile drain was to remain on their property, then they asked for certain changes to the set up of the drain. The Eadies also asked that the allowances to be awarded to them as part of the project (the allowances being compensation for land taken and damages caused) be increased.

The Tribunal considered the appellants’ suggestion that the area requiring drainage could be diverted southerly to a different drain watershed.  However, the Tribunal noted that the appellants did not produce any professional evidence to substantiate that suggestion.  Therefore, the Tribunal accepted the engineer’s evidence.  It also considered the appellants’ request to move the proposed catch basis from the top of the drain to another location.  Again, the Tribunal accepted the engineer’s testimony on the reasons for which this proposed change could not be made.

With respect to allowances under Section 29 of the Drainage Act, the engineer testified that he obtained land sale data from Farm Credit Canada to establish a per acre land value of $4,000 used to calculate the allowances.  Mr. Eadie presented a letter from a Mr. Crispin showing the sale for parcels of land for prices higher than $4,000 per acre, but Crispin was not called to testify.  The Tribunal placed limited weight on that evidence.  Ultimately, the Tribunal found that the allowances under Section 29 of the Drainage Act provided in the engineer’s report were fair and equitable and in conformance with the Act. The Tribunal also found that the engineer’s allowances under Section 30 of the Act for crop losses determined to be $500 per acre were fair and equitable and in conformance with the Act.

Read the decision at: Baird Municipal Drain.

Municipality discharges contaminated water into municipal drain

The Corporation of the Municipality of Lambton Shores and Landmark Tank & Tower Services Corp. Fined $50,000 for a Discharge of Contaminated Water

SARNIA - On October 18, 2010, The Corporation of the Municipality of Lambton Shores pleaded guilty to one violation under the Ontario Water Resources Act and on September 28, 2010, Landmark Tank & Tower Services Corp. pleaded guilty to the same charge of discharging contaminated water into the Hobbs McKenzie Drain.

The Court heard that the town hired the company to clean and inspect a drinking water standpipe in the Village of Arkona. When the standpipe was opened by the company, it was found to contain 2000 gallons of a red mixture of iron rich water and solids. The company pumped the material out of the standpipe and into the spillway that flowed into the municipal storm drain. Responding to complaints from a resident that the drain was running red in colour, ministry staff attended the site and confirmed the discharge.

The town and company were charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined $30,000 and the town was fined $20,000 for a total of $50,000 plus victim fine surcharges. The company and town were given 60 and 30 days to pay their fines respectively.

Appeal Tribunal "disturbed" by actions of municipality in performing its Drainage Act duties

In allowing an appeal by Rein Minnema of Glencoe, Ontario against a report of a Drainage Engineer for the Municipality of Southwest Middlesex, the Agricultural, Food and Rural Affairs Tribunal criticized the municipality for its actions leading to the creation of the report.  The report concerned the Miller Drainage Works 1969 and Minnema asked that it be amended to provided for enclosing the open channel of the drain on his property.  The enclosure was actually part of the original report of the Drainage Engineer in 2006, but the Municipality ignored that report and instructed the Engineer to go in a different direction.  In the view of the Appeal Tribunal, this instruction exceeded the jurisdiction of the Municipality:

The Tribunal is disturbed by the actions of the Municipality in performing its duties under the Act, beginning with Council's consideration of the Engineer's preliminary report at their meeting of March 15, 2006. The Engineer's preliminary report provided three options for the enclosure of the drain in response to the original request by Mr. Minnema to have the drain enclosed. However, after hearing complaints from upstream landowners, Council chose to ignore the Engineer's recommendations contained in his preliminary report and restated in his letter attached to the municipal staff report. Instead, they opted to proceed in a completely different direction by instructing the Engineer to prepare a report based on installing an access culvert and erosion protection. It was this Council action that appears to have initiated a nearly 5 year litany of events which led to the preparation and consideration of three versions of final reports, with the recommendations in each successive report becoming progressively further removed from Mr. Minnema's original request for an enclosure and the recommendations of the Engineer in his preliminary report. During the process, Council provided specific instructions to the Engineer to modify his recommendations and design parameters, including changing the report from a drain enclosure to a culvert, deleting erosion protection and the upsizing of the access culvert from a 1 in 2 year to a 1 in 5 year design standard.

The Tribunal finds that Council for the Municipality exceeded their jurisdiction under the Act by exerting undue influence on the Engineer which prejudiced the Engineer's independent judgment.

The Tribunal is also disturbed by the Engineer's passivity in complying with Council instructions to make significant changes to his recommendations and design parameters. In his letter to the Municipality of January 14, 2007, which was attached to the staff report to Council dated February 11, 2010, the Engineer clearly stated that the best solution to address problems, including surface water and erosion, was the installation of a tile drain generally following the existing channel with outlets for surface water. During the hearing, the Engineer testified that he is still of the opinion that the erosion issues at the outlet of the existing tiles need to be addressed, yet this work is not included in the current Report. He also testified that the design standard for an agricultural access culvert is normally a 1 in 2 year storm, yet the culvert in the Report has been upsized to a 1 in 5 year storm. Furthermore, he testified that he still stands by his recommendation to enclose the drain as described in his preliminary report, yet the current Report has no such recommendation. He said that he made the changes to the reports in order to comply with the Council instructions.

The Tribunal finds that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.

In view of the above, the Tribunal finds that the Engineer's Report under consideration does not represent a "true report" as referenced under Section 11 of the Act.

Read the entire decision at: Miller Drainage Works 1969.

Good drainage makes for good neighbours?

Click on the following link to read OMAFRA's 1998 paper on common law drainage problems between neighbours: Factsheet 98-015.  Remember that, generally, one neighbour has no right to drain his or her water onto neighbouring lands.  Likewise, the other neighbour has no obligation to allow the water to drain onto his or her land.