Section 78 of the Drainage Act authorizes improvements that significantly increase drain capacity to meet current standards.
The applicants sought to set aside a 2018 engineer's report proposing improvements to the Filsinger Drain, arguing that section 78 of the Drainage Act does not authorize the abandonment of existing works and the construction of new works with significantly increased capacity.
The Acting Drainage Referee dismissed the application, declining to follow a 1988 Referee decision (Kilberg v. Wallace) that restricted capacity increases under section 78.
The Referee held that section 78 authorizes improvements that increase capacity to meet current engineering standards, and that section 19 permits the abandonment of existing works supplanted by such improvements.
Goetz v South Bruce (Municipality), 2021 ONDR 2
