Todd Perry

The plaintiff brought an action for damages and declaratory relief against downstream neighbours for failing to maintain their portions of an Award Drain, causing flooding on his farmland.

The defendants argued the Drainage Referee lacked jurisdiction over Award Drains and that they had performed adequate maintenance.

The Referee held that he had jurisdiction to order maintenance and clarify the drain's profile.

The Referee ordered ongoing maintenance supervised by an engineer and awarded the plaintiff nominal damages of $1 against one defendant and $2,200 against the others for crop losses caused by delayed maintenance.

The appellants appealed the engineer's report for the proposed Stanley Road Municipal Drain, seeking declarations of invalidity and damages for crop loss caused by the respondent Township's prior alteration of a natural watercourse.

The Drainage Referee ordered the drain to proceed under the engineer's recommended alternative but mandated a minimum depth of four feet and the retention of the appellants' berm to ensure sufficient outlet.

The Referee also increased the allowances for land loss and existing works, clarified the Township's maintenance obligations, and awarded the appellants $6,896.44 in crop damages for the years 2004 to 2007.