Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent, 2025 ONSC 4746

CITATION: Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent, 2025 ONSC 4746

DIVISIONAL COURT FILE NOS.: 75/22 and 29/23 DATE: 20250915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Fregeau, Faieta, Sheard JJ.

BETWEEN:

ERIE SHORE DRIVE PROPERTY OWNERS ASSOCIATION, TREVOR DIXON, ROWAN DIXON, RICHARD JOSEPH BARNIER, WENDY ANNE BARNIER, KEITH GORDON PEARCEY, DAVA ROBERTSON PARR, KIMBERLY ISAAC, RONALD FRANCIS VAN DER PAELT, SARAH-LOUISE VAN DER PAELT, GARY DANIEL JANADIA, MICHAEL KEITH JANADIA, RISARG HUFF, LINDA MAE HUFF, CHERYL ANN WALLACE, JANET CHARLOTTE WALLACE, STEPHANIE BOUDREAU, TRACY ANN HENRY, GLORIA BLONDE BLACK, LYNDA MAE DODMAN, STELLA MARIE DODMAN, MICHAEL SCOTT MORIS, DEBRA ANN ZIEMBA, EARL HENRY NEAR, JACOBA NEAR, JONATHON MICHAEL SOUTHEN, SHANNON DEANNA WESTGATE, FRANK SPARKS, JENNIFER ANNE SMITH, SIMON HERBERT SMITH, BAVAENDRAN ATCHUTHAMPILLAI, EDWIN CLAUDE WOOD, DAVID PATERSON, HOLLY PATERSON, TREVOR RONALD MORTON, FRANK GILLESPIE, Edward Gerard Peck as Estate Trustee of the ESTATE OF WILLIAM ELDON PECK, Deceased, Betty Peck as Estate Trustee of the ESTATE OF LARRY ALLEN PECK, Deceased, DAVID CHARLES PECK, DENELLE LEA PECK, PAUL MAILLOUX, DANA SMITH, KRISTY TAYLOR, JODIE TAYLOR, HENRY ALLAN DE JONG, MARISKA DE JONG, STIPAN JURKOVIC, MICHELLE JURKOVIC, GEOFFREY EDWARD DENNIS, WESTLEY ALFRED TROJAND, JEAN ISOBEL HUMPHREY, JUDY LYNN OEHM, CHARLES EDWARD BELBECK, DENNY KEVIN JAKSIC, TERRA DANIELLE CADEAU, MARLENE MARIA SCHERTZER, WILLIAM MICHALE SCHERTZER, MARIANNE COUSINEAU, JAMES COUSINEAU, ROGER DOUGLAS HOUGHTON, DEBORAH JEAN VINT, LINDA DARLENE HEYNINCK, WERNER KRAUS personally, and in his capacity of Power of Attorney for MARIA KRAUS, DAVID MICHAEL TROTECHAUD, MARJORY ELLEN TORTECHAUD, MELISSA SHARON OGDEN, KIMBERLY MARGARET SNELL, STEVEN BARRY DOBSON, SUSAN ELIZABETH O’BRIEN, DEVY LEANN BROUWER, MARGO TREVOR HINNEGAN, FRANK KEITH ZIEMBA, JEFFREY PETER KNIPFEL, SONYA LYNN KNIPFEL, MURRAY SPENCER, GAIL SPENCER, MICHELLE RUBY PENNEY, ANDREW JONATHAN SPENCER, GARY EDWARD BLAIN, SHARON ELAINE BLAIN, SCOTT FRANCIS, ROSEMARIE KATHI JOHANNA FRANCIS, PHILIP ALLAN SMITH, DEBRA LEE JANE SMITH, CLIFFORD-LAWRENCE BARTLETT, LYNDA LEE BARTLETT, ELIZABETH COLLEEN FLETCHER, 2255577 ONTARIO INC., EDWARD JOSEPH REITBERGER, DARWIN ALLAN RICE, JENNY ROSELINDA RICE, TIMOTHY JOHN AARSEN, ELIZABETH JEAN WEBER, CHRISTOPHER DAVID HAGER, CATHERINE MARIE PANCOE, RONALD KENNETH PESESKI, ROSEMARIE BERNADET PESESKI, JENNIFER ANN VANNECK, DAVID THOMAS RUTTY, DENISE MARYLOU RUTTY, JEANINE DORIS WATT, BERTRAM LEON MARKS, MONIQUE DARNELL MARKS, BARBARA ANN HOYETT, STEVEN EDMUND DEW, NANCY MARIE DEW, STEPHANIE LIN GELUK, CHERYL LUGEAN MASON, MYRON BURNS BUSH, DAVID RICHARD COPLEY, MARILYN MAUDE COPLEY, ACAMPORA FAMILY HOLDINGS INC., DAVID MELVIN DAVIS, MARGARET SUSAN LOUISE DAVIS, JAMES EVAN STERLING ALLIN, BRIAN GERHARD FALLAK, LAURIE ELIZABETH FALLAK, DANA DAUGHTERTY, LEONARDO CARO, JANICE LYNN CARO, HARRY LOUIS VAN DYKE, MARY VAN DYKE, TERRANCE GILBERT MAYNARD, STEPHEN GARY MAYNARD, CHERYL ANN MACKENZIE, BRENDA ALICE KARLOVCEC, LORI ELLEN MCKEON, JANE DOE in her capacity as ESTATE TRUSTEE for the ESTTE OF SEAN PANJER (deceased), WILLIAM ROBERT SEATON, JULIE WENDY SEATON and STEPHANIE KATHLEEN COX

Applicants

(Respondents in DC-22-075 and

Appellants in DC-23-029)

– and –

THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT

Respondent

(Appellant in DC-22-075 and Respondent in DC-23-029

Paula Lombardi, for the Applicants/Appellants

Sheila Handler, for the Respondent

HEARD at London: April 22, 2025

REASONS FOR DECISION

FAIETA J.

[1] The Applicants (other than the Erie Shore Drive Property Association) are the owners or former owners of properties located along Erie Shore Drive in the Municipality of Chatham-Kent (the “Municipality”). These 75 seasonal and residential properties lie between Erie Shore Drive and Lake Erie. For decades these properties have been periodically flooded by water from Lake

[2] Erie.

[3] The Burk Drainage Works was established under a predecessor to the Drainage Act, R.S.O. 1990, c. D.17 (the “Act”) about 110 years ago to convert wetlands into agricultural lands. The Burk Drainage Works drains an area of about 1,600 acres of land, and about 1,340 acres lies below the current still water elevation of Lake Erie and is considered floodable. These lands are drained by a combination of gravity and pumped drainage systems. In addition, dykes and groynes on the shore of Lake Erie serve to protect the flooding of the area served by the Burk Drainage Works: see Todgham and Case Associates Inc., Flood Protection Study for Erie Shore Drive (May 1998) at p. 2 (the “Todgham Study”).

[4] In 2021, the Applicants brought an application under s. 79 of the Act for an order requiring the Municipality to maintain and repair the Burk Drainage Works, pay damages incurred by the Applicants associated with the Municipality’s alleged failure to maintain and repair the Burk Drain, and to pay out of the general municipal levy the costs and damages claimed by each Applicant.

[5] The hearing was commenced before Andrew C. Wright, an Acting Drainage Referee (the “Referee”). The Referee heard two preliminary motions. Each party appeals from the Referee’s decision on these motions.

[6] The Applicants’ appeal raises the following issues:

(a) Did the Referee err in finding that the Applicants’ letter dated September 1, 2020, did not meet the requirements for notice under s. 79 of the Act?

(b) Did the Referee err in finding that a claim for damages under s. 79 of the Act is limited to those damages that occur after notice has been delivered?

(c) Did the Referee err in finding that the 1930 McCubbin Seawall, the 1948 McCubbin Seawall and the 1949 McCubbin Seawall had been abandoned even though s. 19 of the Act, which permits an engineer to recommend the abandonment of a drain, did not come into force until 1975?

[7] The Respondent’s appeal raises the issue of whether, in respect of the Municipality’s motion to dismiss the Applicants’ claim for damages under s. 79 of the Act, the Referee erred in finding that a claim under s. 79 of the Act is a strict liability provision that does not require proof of injurious affection.

[8] For the reasons described below, the appeals are dismissed.

[9] The Burk Drainage Works generally serves those lands in Registered Plan 420 and 421 in the former Township of Harwich. They are provided drainage by an extensive internal gravity and artificially pumped drainage system and are provided protection from Lake Erie and Rondeau Bay by an extensive system of dykes, groynes, and other protective works. The total area within the Burk Drainage Works is in excess of 647 hectares (1,600 acres) and much of it lies below the current still water elevation of Lake Erie. Approximately 542 hectares (1,340 acres) of the agricultural area within the Burk Drainage Works is considered floodable: see Todgham Study, p. 2.

[10] On the petition of landowners, the Burk Drainage Works was established under the Municipal Drainage Act, R.S.O. 1897, c. 226, in about 1913 for the purpose of converting wetlands into productive agricultural lands. These lands are now predominantly used for agriculture (93%), while the remainder is residential/cottage properties (5%) and roads (2%): see K. Smart Associated Ltd., Section 78 Engineer’s Report (June 12, 2013) at p. 2.

[11] Reports prepared under the provisions of the Municipal Drainage Act in 1930, 1946, 1947, 1948, 1951 and 1968, led to the construction of wooden seawalls and groynes along the shoreline of Lake Erie opposite the length of the Lakeshore Drain abutting the Dyke Road. The construction of the wooden seawalls and groynes was carried out primarily to protect the Burk Drainage Works. Except for the 1968 report, the entire cost of the seawall and groyne construction projects was assessed against the lands within the Burk Drainage Works with no assessment being made against the residential lots along the shore of Lake Erie which lie between the Dyke Road and the water’s edge: see Todgham Study, p. 5.

[12] In 2020, the Municipality’s Chatham-Kent Lake Erie Shoreline Study (the “Study”) assessed climate change impacts on water levels in Lake Erie and on coastal storms. It made recommendations for adaptation options for various areas along the length of the Lake Erie shoreline located within the Municipality, including Erie Shore Drive.

[13] The Study provides further details regarding the history of the Burk Drain and the municipal response to shoreline erosion in the vicinity of Erie Shore Drive:

• Prior to European colonization, Erie Shore Drive was likely a dynamic sandy barrier beach that separated the lake from the marsh and meadows of the bay. The dyke was constructed at the back of the sandy barrier beach to protect the re-claimed agricultural lands in the Burk Drain: see Study, p. 105.

• A wooden retaining wall was constructed parallel to Erie Shore Drive and then re-enforced with a series of wooden groynes approximately 25 feet in length in 1930 and expanded/repaired numerous times between 1943 and 1968. Remnants of the old wooden retaining wall and groyne are visible in select locations along Erie Shore Drive: see Study, p. 16.

• Development followed lakeward of the dyke. By the late 1930s, there were approximately 50 cottages and cabins located at the back of the sand beach. A dirt road was constructed on top of the dyke and was eventually renamed Erie Shore Drive: see Study, p. 16.

• In the early 1970s, the former sand beach had eroded and exposed clay in locations. Given the reduced lot depths, the functionality of the private septic systems and weeping beds was identified as a serious pollution problem and health concern.

• In 1998, a preliminary report was prepared under the Act to investigate options for flood protection along Erie Shore Drive. Several key findings from this report remain relevant today. First, the shoreline is eroding, and the process is irreversible without significant investment in coastal engineering structures. Lot-by-lot shore protection can only provide limited localized flood and erosion relief. It can also result in negative impacts to adjacent properties. Second, with the passing of time, the design and construction of a regional shoreline protection scheme for Erie Shore Drive will become more difficult and expensive to implement: see Study, p. 16.

• The recommended approach was a regional solution that included a revetment at the western end of the site and large armour stone headlands with beach nourishment for the central and eastern portion of Erie Shore Drive. The total cost would have been approximately $11 million dollars in 1998 ($16.5 million in 2020). Recommendations were provided for all stakeholders to continue collaborating in the pursuit of a regional solution to Erie Shore Drive. These recommendations were not implemented: see Study, p. 16.

• Extensive flooding occurred around home foundations, structural damage occurred in some locations due to wave forces, and septic tile beds were in failure due to yard flooding. In locations where Erie Shore Drive is low, sheet flow conveyed water over the road and into the Lakeshore Drain. Erosion of the north dyke slope occurred in several locations, threatening the stability of the road and dyke crest: see Study, pp. 16-17.

• The community has very high exposure to coastal hazards, including erosion and flooding. A dyke breach would flood over 500 hectares of interior farmland in the Burk Drainage Scheme and make Erieau Road inaccessible to vehicular traffic. This would isolate the Village of Erieau from emergency services outside the community. These risks are magnified during the current period of high lake levels. This is evidenced by the fact that Erie Shore Drive has repeatedly flooded since 2017. Emergency measures were constructed on the north slope of the dyke (i.e., concrete blocks and rock chutes) to convey wave overtopping: see Study, p. 105.

• In February 2020, the Mayor of the Municipality declared a state of emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, given that there was a 5% to 40% chance of wave overtopping conditions. This would render the dykes unstable with progressive failures, leading to a significant breach and interior flooding. Part of Erie Shore Drive was permanently closed, and the Municipality undertook emergency repairs. It is believed that the dyke is stable to marginally stable for a flood event lasting up to four days: see Study, p. 105.

The Study makes the following conclusions:

• The high lake levels from 2017 to present have exposed the very low resilience of this shoreline to fluctuating water levels and coastal hazards. Decades of building on eroding shorelines and in the coastal floodplain has produced problems that neither the landowners nor the Municipality can afford to address without significant funding support. The changing risk profile due to climate change, including increased lake levels and future erosion rates due to reduced ice cover, make it imperative the community continues to work together and act on the most vulnerable areas: see Study, p. 120.

• Developing a path forward for Erie Shore Drive should be the top priority: see Study, p. 120.

• The Erie Shore Drive community’s vulnerability to coastal hazards is very high. Once the barrier beach was developed and eventually armoured in the 1940s, the nearshore lake bottom began to erode and now features very deep conditions. With the record high lake levels, there is no nearshore to dissipate incoming wave energy, leading to seawalls that are regularly overtopped during storm conditions. There are also building floods, road closures, and impacts to the structural stability of the dyke: see Study, p. 122.

• There have been past attempts at building community-scale shoreline protection for the dyke and homes along Erie Shore Drive. The preliminary opinion of cost for the Erie Shore Drive revetment alternative generated for this study (Option 2-1a), that accounts for climate change impacts on the 100-year lake level and additional lowering of the lake bottom, ranged from $14,000 to $21,000/metre. The community was encouraged to reach a consensus on a regional shore protection alternative in 1998 and implement a solution. Unfortunately, nothing was done: see Study, p. 122.

• The adaptation concepts for Erie Shore Drive are summarized in Table 7.1 below:

Adaptation Approach	Option	Description	Cost (Millions)
Protect	2-1a	Revetment for 50 year planning horizon; build flood proofing; upgrade septic systems; and dyke/road repairs.	$59.2 to $84.4
Protect	2-1b	Revetment for 25 year planning horizon; build flood proofing; upgrade septic systems; and dyke/road repairs.	$45.7 to $64.3
Protect	2-1c	Armour stone berm for 20 year planning horizon; build flood proofing; upgrade septic systems; and dyke/road repairs.	$36.8 to $50.7
Retreat	2-2	Erie Shore Drive retreat and buyout/relocate homes. The assessed value of the property was approximately $20 million in 2019.	Unknown
Upgrade Dyke for Flood Protection	2-3	Upgrade dyke to provide flood protection for the agricultural land.	$22.5 to $31.7 plus Option 2-2
Nature Based Adaptation	2-4	Purchase property in the Burk Drain south of Erieau Road; protect the shoreline; naturalize the dyke; and restore coastal wetland and upland forest habitat on the former agricultural lands (note: assumes implementation of Option 2-2).	$33.1 to $47.4 (plus Option 2-2)

• Shoreline perpendicular groynes and vertical shore parallel seawalls, both of which are present along the shoreline around Erie Shore Drive, were excluded from consideration as adaptation concepts given their ineffectiveness: see Study, pp. 91-92.

• If the community-scale shoreline protection concepts (Option 2-1a to 2-1c) are not desirable or affordable for the benefiting parties along Erie Shore Drive, then a retreat program should be pursued (Option 2-2). The dyke would still require repairs to protect the agricultural land and Erieau Road from a breach and interior flood, as outlined in Option 2-3: see Study, pp. 122-123. Based on feedback received during consultations with senior levels of government, funding is not available for private shoreline protection. However, there is an emerging emphasis on nature-based climate solutions that generate co-benefits for communities and increase resilience, which is consistent with Option 2-4. By removing buildings, eliminating the agricultural land and protecting Erieau Road from flooding, coastal risks are eliminated, emergency access to the Village of Erieau is protected, and more than 400 acres of new coastal wetlands are created. Option 2-4 is consistent with best-practice for disaster mitigation and nature-based adaptation: see Study, p. 123.

The Study recommended that immediate action be taken to implement:

• Option 2-1a to 2-1c (Protect) – implement community scale shore protection and dyke upgrades. Use the Act to allocate costs; or

• Option 2-2 plus Option 2-3 (Retreat and Upgrade Dyke for Agriculture) – if the Protect options are not affordable, pursue a Retreat program (Option 2-2) and implement Option 2-3 (Upgrade Dyke for Agriculture); or

• Option 2-2 plus Option 2-4 (Retreat and Naturalize the Interior) – if the Protect options are not affordable, pursue a Retreat program (Option 2-2) and Naturalize the Interior (Option 2-4): see Study, p. III.

There is nothing in the record that indicates which option(s), if any, have been taken.

Purpose and Scheme of the Act

[14] At common law, the owner of land is not obliged to receive water that does not flow in a stream or other defined natural watercourse from neighbouring land and may build a structure (whether a boundary berm, dyke, retaining wall or other barrier) or raise the height of their land to block the flow of surface water provided that the landowner does no more than is reasonably necessary to protect the enjoyment of their land: see Di Gregorio v. Osborne, [2004] O.J. No. 2156 (S.C.), at para. 45; McLennan v. Meyer, [2005] O.J. No. 4665 (Ont. C.A.), at para. 3.

[15] The purpose of the Act was described by the Referee in his Order from November 30, 2022 (the “Actionable Issues Order”), at para. 17, as follows:

… the Drainage Act is intended to overcome the common law obstacles to drainage of and thus the productive use of land in the Province. The effect of the common law is to encourage a broken-up, hedgerow-like landscape of border berms, dykes, retaining walls and other barriers to surface water flows designed to protect each individual land holding from surface water coming down from higher land holding(s). The result is no effective drainage of any of the lands in the watershed. The Drainage Act is designed to cut through those barriers and to provide comprehensive [community-initiated and financed] drainage systems which serve the needs of all in a watershed and to provide drainage works to facilitate the productive use of all land holdings.

[16] The Act, with origins spanning back almost 190 years, provides that a municipal drain may be established by petition:

(1) A petition for the drainage of an area requiring drainage by means of a drainage works may be filed with the clerk of the local municipality by the majority in number of the owners of lands in the area or by the owners representing at least 60 per cent of the hectarage in the area: see Act, s. 4(1).

(2) If municipal council decides to proceed with the petition, then it must appoint an engineer to examine the area to prepare a report that describes the drainage works, its estimated cost and how those costs should be allocated amongst the owner of lands to be drained even if they did not sign the petition. The allocation of costs is based the owner’s assessed benefit, outlet liability and injuring liability: see Act, ss. 8(1), 10(1), 21.

(3) If municipal council does not respond to the petition or declines the petition, then the petitioner may appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”): see Act, ss. 5(2), 10(6).

(4) The engineer appointed by the municipality shall prepare a report within one year: see Act, s. 39(1). If the engineer finds that a drainage works is not required or cannot be constructed under the Act, then the engineer shall forthwith file with the clerk its report: see Act, s. 40. If the municipality decides not to proceed, any petitioner can appeal to the Tribunal: see Act, s. 45(2).

(5) If the municipality intends to proceed with the drainage works, then it shall send a copy of the report to the petitioners and other prescribed persons: see Act, s. 41(1). If the municipality adopts the report, then the municipality shall send the report and a provisional by-law to the Court of Revision: see Act, s. 46 (1). An owner wishing to appeal their assessment must serve a notice of appeal on the municipality. An owner may appeal to the Tribunal from the decision of the court of revision: see Act, s. 54(1).

[17] Once a municipal drain has been constructed under the authority of a municipal by-law, it becomes part of that municipality’s infrastructure, and the municipality becomes responsible for repairing and maintaining the municipal drain. The Act provides:

(1) Drainage works shall be maintained and repaired by the municipality through which it passes at the expense of all the upstream lands and roads assessed by the engineer’s report: see Act, s. 74.

(2) On 45 days notice from any person affected by the condition of a drainage works, the municipality is compellable by an order of the referee to maintain and repair the drainage works: see Act, s. 79.

(3) If a municipality considers it appropriate to undertake one or more major improvement projects, such as an activity to improve the drainage works that is not prescribed as a minor improvement, for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by s. 4. The procedure follows that for a petition drain: see Act, s. 78.

Application under [Section 79](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d17/latest/rso-1990-c-d17.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d17/latest/rso-1990-c-d17.html)

[18] In 2021, the Applicants brought an application under s. 79 of the Act for an order requiring the Municipality to maintain and repair the Burk Drain, pay damages incurred by the Applicants associated with the Municipality’s alleged failure to maintain and repair the Burk Drain, and to pay out of the general municipal levy the costs and damages claimed by each Applicant.

[19] Following a Case Management Conference, the Referee issued an Order dated April 24, 2022, which identified the following preliminary issues to be determined prior to the Municipality providing any materials in response to the Application Records. The Referee explained that the principal purpose of addressing these preliminary issues was to spare the expenditure of municipal resources, which would be passed on by way of assessment, predominantly to the farm community, on matters that are not pertinent.

[20] The preliminary issues raised by the Referee and his answer to those issues are reflected in his Order dated June 26, 2023 (the “Preliminary Issues Order”), at p. 43, as follows:

Issue #1: Should the claims of those applicants who are the owners of properties from Assessment Roll No. 03600 (Trevor Dixon) on the east to Assessment Roll No. 14500 (James Allin) on the west be dismissed on the grounds that there is no Act infrastructure on the Lake Erie shoreline of those properties for which the Municipality has any obligation for maintenance and repair under s. 74 of the Act or liability under s. 79 of the Act for not doing so?

Answer: No.

Issue #2: Does the 1930 McCubbin Seawall as authorized by By-law No. 2736 have any continuing status under the Act or has it been subsumed into and replaced by the Todgham clay dyke/breakwater work in Area A-2 authorized by the engineer’s report adopted in 1973 by By-law No. 5053?

Answer: No; it has been replaced by the Todgham clay dyke/breakwater work in Area A‑2.

Issue #3: Do the 800 feet of 1948 McCubbin Seawall authorized by By-law No. 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No. 3401 have any continuing status under the Act or has it been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No. 5082?

Answer: No continuing effect; replaced.

Issue #4: Are the applicants’ damages claims limited to physical injury or harm to property that has occurred after October 15, 2020 (i) which are additional to any injury or harm that may have already occurred prior to October 15, 2020; and (ii) which would not have occurred if the Act authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report?

Answer: Yes.

Issue #5: Is the September 1, 2020, letter given to the Municipality as notice under s. 79 of the Act sufficient as to identifying the “persons affected by the condition of a drainage works” and as to identifying with “reasonable certainty the alleged lack of maintenance and repair of the drainage works” to constitute notice as contemplated and required by s. 79 of the Act?

Answer: A qualified yes. The disqualifying ambiguities of the September 1, 2020, notice letter and subsequent email exchanges between the parties’ solicitors in September and October 2020 were cured by the Notice of Application on May 18, 2021, when notice by the applicants became sufficient for the purposes of s. 79 of the Act.

[21] The Applicants take issue with three findings made by the Referee – the first two issues raised on appeal specifically correspond with preliminary issues #4 and #5, and the third issue raised is indirectly related to those preliminary issues, which deals with abandonment.

[22] The Municipality also brought a motion to dismiss the Applicants’ application on the grounds that their claim for damages under s. 79 of the Act required proof of injurious affection, and thus that their claim would have been actionable at common law. In the Actionable Issues Order, the Referee dismissed the Municipality’s motion. The Referee held that s. 79 of the Act “is intended to extend a municipality’s liability to an owner whose property is affected by the condition of a drainage works, even though, at common law such claims would be denied.”

STANDARD OF REVIEW

[23] A decision of the referee or acting referee may be appealed to the Divisional Court: see Act, s. 121.

[24] The appeals in this case are statutory appeals and the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, apply:

1. On questions of law, the standard is correctness;

2. On questions of fact, the standard is palpable and overriding error; and

3. On questions of mixed fact and law, there is a spectrum:

a. Where there is a question of law that can be extricated, the standard is correctness;

b. Where the factual and legal aspects of the question cannot be separated (i.e., the question is with respect to the application of the correct legal principles to the evidence), the standard is palpable and overriding error.

ISSUE #1: DID THE REFEREE ERR IN FINDING THAT THE NOTICE DATED SEPTEMBER 1, 2020, AND SUBSEQUENT EMAIL EXCHANGES BETWEEN THE PARTIES FAILED TO SATISFY THE REQUIREMENTS OF SECTION 79 OF THE ACT?

[25] Under s. 79 of the Act a person that seeks an order compelling a municipality to maintain and repair its drainage works, or damages in relation to such failure to maintain or repair, must provide 45 days’ notice to the municipality.

[26] Section 79 of the Act states:

Power to compel repairs

79 (1) Upon forty-five days notice served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.

Municipality liable for damages caused by non-repair

(2) Despite subsection (1), the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1) upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works.

No liability where drainage works blocked by ice or snow

(3) The local municipality whose duty it is to maintain and repair a drainage works is not liable in damages for any injury caused by reason of a drainage works being blocked by snow or ice and overflowing the lands of any person without negligence on the part of the municipal corporation. [Emphasis added.]

[27] The Referee addressed the sufficiency of the notice in Issue #5 (above), in which he found that the Notice of Application on May 18, 2021, cured any deficiencies.

[28] The Referee described the content of the notice requirement in the following paragraphs:

287. In broad terms, the intent and purpose of the basic requirements for a notice under section 79 are to be fair to the Municipality; the Municipality should be given a reasonable understanding of what part of the drainage works is the problem so the Municipality can understand what is being required of them. It is often clear, such as, the culvert in front of my farm is plugged with debris, please remove the debris, or there is a beaver dam backing up the drain at the back of Jack’s farm, please remove it. The examples of a beaver dam and blocked culvert are inspired by the Hud v West Nipissing case [2011 ONSC 6294] cited by the applicants.

288. Also, fairness to a municipality requires that the basis of any damages claim advanced under section 79 must relate to the notice given under section 79. If the notice references a beaver dam at the back of Jack’s farm, that notice would not support a claim for damages arising from a blocked culvert a concession removed from the beaver dam.

289. The notice needs to request that the drainage works be repaired. The notice may suggest how the repair should be carried out, but it does not need to specify how the municipality is to correct the condition of the drainage works identified in the notice…. [Emphasis added.]

[29] In Hud v. West Nipissing, 2011 ONSC 6294, at para. 13, Ellies J. summarized the notice requirements under s. 79 as follows:

To be sufficient under s. 79 of the Act, the notice given must identify the drain in question and request that the drain be repaired. It must also be precise enough to allow the Municipality to decide if the complaint is well-founded or frivolous. Section 79(2) also requires that the notice be sent to the "head" or the "clerk" of the Municipality.

[30] The above articulation of the requirements of s. 79 summarizes the views expressed by the Court of Appeal for Ontario in Crawford v. Ellice (Township), [1899] O.J. No. 51 and McKim v. East Luther (Township), [1901] O.J. No. 24.

[31] Both Crawford and McKim involved the interpretation of s. 73 of the Municipal Drainage Act, R.S.O. 1897, c. 226, which required that “reasonable notice” be delivered. That provision stated:

Any municipality neglecting or refusing to maintain any drainage work as aforesaid, upon reasonable notice in writing from any person or municipality interested therein, who or whose property is injuriously affected by the condition of the drainage work, shall be compellable, by mandamus, issued by the Referee or other court of competent jurisdiction to maintain the work, unless the notice is set aside or the work required thereby is varied as hereinafter provided and shall also be liable in pecuniary damages to any person or municipality who or whose property is injuriously affected by reasons of such neglect or refusal. [Emphasis added.]

[32] In Crawford, Lister J.A. stated:

24 It seems to me that what the statute requires is an unconditional notice or demand to repair under its provisions, given or made by a person interested in the drain, and who or whose property is injuriously affected by its condition.

25 The notice or demand ought to be for the performance of that which the plaintiff afterwards seeks to compel by mandamus; in short, it ought to be so clear and precise in its terms that the municipality might be able to ascertain whether the complaint was well founded or frivolous, and it ought to be a notice which the municipality would be justified in treating as a notice under section 73 for the purpose of an application to the referee under sub-sec. (a). …

29 While I do not think that the notice to repair must be framed with technical precision, I do think that it must inform the municipality with reasonable particularity of what is complained of in the way of non-repair, and what the municipality is required to do in respect of the matter complained of. [Emphasis added.]

[33] In McKim, Lister J.A. further stated:

19 It is settled law that the notice thereby required to be given is essential in order to vest in the Referee power to exercise the jurisdiction which the statute confers on him to issue a mandamus. For the defendants it is said that no notice was given; while the plaintiff relies on a letter, dated the 29th of July 1898, and written by the plaintiff's solicitors to the defendants, as being a sufficient notice under sec. 73. That letter makes no reference to the condition of the repair of the drain. The complaint is that her lands had been injured, caused, in part, by water from the drain, constructed by the defendants, flooding them, and the demand therein made was, not that the defendants should repair the drain, but that they should construct and maintain a drainage work "required" to relieve her lands.

20 I do not think that letter can be treated as a notice under sec. 73.

21 Nor do I think that the defendants are precluded from objecting to the Referee's jurisdiction on that ground because they have, not pleaded want of notice.

22 The Referee's jurisdiction to issue a mandamus being special or limited, exercisable only upon the notice prescribed by sec. 73 being given before action, it was for the plaintiff, who was invoking that jurisdiction, to prove affirmatively that notice had been given. And clearly as affecting that jurisdiction it was open to the defendants to take advantage of the want of notice at any stage of the action. [Emphasis added.]

[34] The notice requirement under the predecessor legislation has been strengthened to require that the notice describe “with reasonable certainty the alleged lack of maintenance and repair of the drainage works.” Thus, the principles described in McKim and Crawford are supplemented by this additional statutory requirement.

[35] In summary, notice under s. 79 of the Act must:

(a) Be delivered to the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works.

(b) Describe with reasonable certainty the alleged lack of maintenance or repair of the drainage works, which by necessity must identify what part of the drainage works requires maintenance or repair.

(c) Demand maintenance or repair of the drainage works.

(d) Be so clear and precise in the particulars provided so that a municipality can ascertain whether the complaint is well-founded or frivolous.

[36] Next I consider whether the Referee erred in determining that the Applicants’ letter dated September 1, 2020, was insufficient to constitute notice under s. 79 of the Act. The letter states:

Re: Request for Maintenance and Repairs to a Municipal Drain Sections 74 / 79 of the Drainage Act, RSO 1990, c D.17 Burk Drainage System - Erie Shore Drive Property Owners

We have been retained by numerous property owners located along Erie Shore Drive (collectively referred to as the “Clients”) and falling within the existing Burk Drainage System. We are submitting this letter as our Clients’ formal request under the provisions of the Drainage Act, RSO 1990, c D.17 (“Drainage Act”) to the Municipality of Chatham-Kent (“Chatham-Kent” or “Municipality”) seeking to have Chatham-Kent immediately repair and/or maintain the Burk Drainage System.

Over the course of the past several years our Clients’ properties along Erie Shore Drive have been subject to various levels of flooding and other issues as a result of Chatham-Kent’s continued failure to repair and maintain the Burk Drainage System.

The purpose of this letter is to submit, on behalf of our Clients, a written request to Chatham-Kent to compel the necessary repairs and maintenance of the Burk Drainage System. We note that Chatham-Kent as the municipality responsible for the maintenance and repair of the Burk Drainage System may in its discretion undertake one or more of the projects listed in section 78 (1.1) of the Drainage Act that the Municipality considers appropriate. Such projects include but are not limited to constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.

Our Clients are, by copy of this letter, requesting in writing that Chatham-Kent complete the repairs and maintenance required to ensure the proper functioning of the Burk Drainage System and ensure the protection of our Clients’ properties moving forward…. [Emphasis added.]

[37] On September 18, 2020, the Municipality asked the Applicants for “a full list of all the property owners that you represent and who are covered by this notice” and that the Applicants “particularize the allegations of non-repair of the Burk Drainage Works so that we may adequately review and respond.”

[38] On October 19, 2020, counsel for the Applicants responded as follows:

Please see the attached list of property owners and their addresses of whom we have been retained to represent.

In our notice dated September 1, 2020, we confirmed the location of our Clients within the existing Burk Drainage System and that they were impacted by the flooding of their properties as a result of the Municipality’s failure to repair and maintain the Burk Drainage System. This meets the requirements of the Drainage Act for the purposes of a notice.

Our notice specifically relates to the flooding issues in the area due to the lack of repair and maintenance. These issues are very familiar to Chatham-Kent it would be inappropriate to suggest otherwise. Chatham-Kent has engaged in numerous studies and investigations as result of these very same flooding concerns arising from the failure to maintain the Burk drainage system including but not limited to the dike situated along Erie Shore Drive.

Chatham-Kent’s own report from April 2020 states on this issue “If the dike breaches, buildings and agricultural crops inside the Burk Drain could be lost ….” With respect to the area that we represent being the Property owners along Erie Shore Drive, it is noted that “A dike breach would flood over 500 hectares in the Burk Drainage Scheme….” Chatham-Kent has also been monitoring the area and retained Golder Associates to assess the overall stability of the dike and need for shoreline protection. A section of Erie Shore Drive impacting numerous of our clients was closed for traffic on March 9, 2020 to implement emergency repairs to the dike, based on recommendations from Golder that indicated a slope failure during a wave overtopping event could lead to a dike breach.

We trust that the municipality is not taking the position that it is not familiar with the flooding and drainage problems in this area associated with the failure of the dike situated within the Burk Drainage System and need for shoreline protection within the Burk Drainage System when it has retained numerous consultants including but not limited to Golder Associates to investigate the area. Chatham-Kent completed a shoreline study that dealt with this very issue as recently as April 2020 merely six months prior to our Client’s submission of its request for repairs and maintenance. We trust that the Municipality’s own report describes with reasonable certainty the alleged lack of maintenance and repair of the Burk drainage works that are being sought by our Clients. [Emphasis added.]

[39] The Referee found that the notice dated September 1, 2020, delivered by the Applicants, even when read in the context of further correspondence from the Applicants, failed to satisfy the requirements of s. 79 of the Act to describe with reasonable certainty the alleged lack of maintenance and repair of the Burk Drain.

[40] The Referee stated:

303. The Municipality submits that this e-mail exchange does not cure the September 1, 2020, notice as there is still no description with reasonable certainty of the alleged lack of maintenance and repair such as to satisfy the requirements of section 79. I agree that the September 1, 2020, letter, as supplemented by the subsequent e-mail exchanges between the parties' solicitors in September and October 2020, was not sufficiently precise to satisfy the notice requirements of section 79 of the Act, but that is not the end of the discussion.

304. This e-mail exchange is followed by the Notice of Application by which this application was launched on May 18, 2021. It seeks damages incurred by the applicants associated with the non-repair and failure to maintain the Burk Drain system. That generalization is elaborated upon in the following:

(a) Clause (f) under the title “Failure to Maintain and Repair” on page 31 of the Notice of Application alleges that “The lack of repair and maintenance of the Burk Drainage system includes but is not limited to constructing, reconstructing or extending embankments, walls, dikes, reservoirs, pumping station, the seawall and groynes and/or other drainage works in connection with the Burk Drainage system.”

(b) Clause (k) under the same heading on page 32 says: “Despite the Applicants repeated requests for maintenance and repairs of the Burk Drainage System including but not limited to the wooden seawall and groynes, Chatham-Kent has refused, failed, or neglected to repair and/or maintain the Burk Drainage System.”

(c) Clause (ww) of the Notice of Application, under the title “History of the Burk Drainage System,” on page 40 says: “The existing wooden seawall and groynes were installed under the provisions of the Act. Under the provisions of the Act, the Municipality is responsible to repair, maintain and improve the Burk Drainage System and has failed to do so at the cost and expense of the Applicants’ properties situated along the Lake Erie shoreline.” [underlining in original – bold added].

305. On March 24, 2022, the applicants provided their supporting affidavits from which it was evident that the thrust of the applicants’ application is connected to liability attributable to the failure to maintain and repair the wooden seawalls and groynes installed under the Drainage Act along the shoreline from the 1930’s to the 1960s.

306. In the course of processing the application, the ambiguity of the September 1, 2020 notice letter and subsequent e-mail exchanges has dissipated and it has been clarified who the applicants are and that they are asserting money claims under section 79 of the Act on the basis that the Lake flooding damage they have suffered is attributable to the Municipality having not kept up and in repair the wooden seawalls and groynes constructed under the authority of the Drainage Act from the late 1940’s to the late 1960s. That clarification, together with the identity of the persons claiming to be affected, appears for the first time in the Notice of Application. It is then that effective notice was given for the purposes of section 79 of the Act.

307. It is my view there is a degree of latitude about a notice given under section 79 and that imperfections can be cured after the giving of the original notice if provided in writing, including e-mail communication. But at some point, the notice giver has the onus of being explicit with the Municipality about what condition of the drainage works they say is wrong. When the notice is perfected or completed “with reasonable certainty” as to “the alleged lack of maintenance and repair of the drainage works”, then in my view the 45-day grace period will start.

308. The clarification in the Notice of Application on May 18, 2021, mentioned in paragraph 304 above was sufficient to rectify the ambiguity of the September 1, 2020, notice letter and subsequent e-mail exchanges between solicitors in September and October 2020. It is at that time in May 2021 that the notice was sufficiently complete to commence the 45-day grace period referred to in section 79 of the Act. That grace period expires 45 days thereafter on July 2, 2021. References in these reasons to the October 15, 2020, expiry of the 45-day grace period should be read as July 2, 2021, as the context requires.

309. Counsel for the Municipality expressed concern in her submissions that the list of affected persons provided to the Municipality’s solicitor by the applicants’ solicitor via e- mail on October 19, 2020, and referred to in paragraph 299 above, did not include all those who are now applicants. As I reviewed that October 19, 2020, list against the names of the applicants, I noticed a few applicants were not listed but that issue is cured once one takes the application itself as constituting the notice required for the purposes of section 79 of the Act. [Emphasis added.]

[41] The Applicants submit that the Referee erred in requiring them to specify what part of the Burk Drain required maintenance and repair. Its reliance on Hud is misplaced, as the notice not only specified what part of the drainage works required maintenance but also what work was required. In Hud, the notice stated:

The Cazabon Drain downstream from this property is not being kept clear … is now almost totally blocked. The municipality must now immediately clear the inside of the Goulard culvert or there will be extensive flooding with the next heavy rainfall.

[42] The Applicants submit that the Referee erred in finding that the notice was insufficient given that the Municipality did not bring a motion to dismiss Applicants’ notices as insufficient. As noted in McKim, it is open to the Municipality to take advantage of the lack of notice at any stage given that notice is a pre-condition to the Referee’s jurisdiction.

[43] The Applicants also submit that the September 1, 2020, notice satisfied s. 79 of the Act because the Municipality’s own report, issued in April 2020, “describes with reasonable certainty the alleged lack of maintenance and repair of the Burk Drainage Works” they sought. The court was not directed to anything in that report which supports this position. As noted by the Referee, at paras. 209-221 of the Preliminary Issues Order, the Chatham-Kent Lake Erie Shoreline Study did not recommend the use of (shore perpendicular) groynes nor the use of (vertical shore parallel) seawalls as shoreline protection measures as they had proven to be ineffective. The shoreline protection options recommended by the Study in the Erie Shore Drive area included building flood proofing, upgraded septic systems and dyke/road repairs at a cost of between $59.2- $84.4 million. In my view, these options amount to “improvements” defined in the Act as “any modification of or addition to a drainage works intended to increase the effectiveness of the system” and not maintenance (defined in the Act to mean “the preservation of a drainage works”) nor repair (defined in the Act to mean “the restoration of a drainage works to its original condition”).

[44] The Applicants’ failure to identify the “repairs” illustrates the fact that the Applicants do not seek repair but, rather, an improvement (i.e., something new) to protect the shoreline.

[45] I find that the Referee did not make a palpable and overriding error in finding that the notice delivered by the Applicants dated September 1, 2020, did not satisfy the requirements of s. 79 of the Act.

ISSUE #2: DID THE REFEREE ERR IN LIMITING DAMAGES TO PHYSICAL INJURY OR HARM TO PROPERTY THAT OCCURRED AFTER OCTOBER 15, 2020?

[46] The Preliminary Issues Order addressed Issue #4 as follows:

Are the applicants’ damages claims limited to physical injury or harm to the property that has occurred after October 15, 2020 [beyond 45 days after the September 1, 2020 notice] (i) which are additional to any injury or harm that may have already occurred prior to October 15, 2020, and (ii) which would not have occurred if the authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report.

[47] The Referee answered the above question in the affirmative for the following reasons:

30. The answer is yes. The applicants have cited no jurisprudence, nor offered statutory interpretation to the contrary nor made any submissions other than to ask that the applicants’ damages not be limited to those which occurred after October 15, 2020. October 15, 2020, is the date which is 45 days after the giving of the September 1, 2020, letter to the Municipality as notice under section 79 of the Act.

31. Subsection 79(2) of the Act provides that a municipality shall not be liable for non-repair until after notice has been given. Giving retroactive effect is at odds with the scheme and purpose of the Act.

32. The applicants make no submissions with respect to the requirement that damages claims must be for injury or harm to property which would not have occurred if authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report.

[48] In their Notice of Appeal, the Applicants submit that this question should be answered in the negative.

[49] Once again, this question requires a consideration of ss. 79(1) and (2) of the Act.

[50] The Applicants, at para. 36 of their Factum, submit that the Referee found that damages are limited to physical injury or harm to property. The Referee made no such finding. At para. 277 of his reasons, the Referee considered the Applicants’ submission that damages under s. 79(1) are not confined to physical damages and may also be awarded for decrease in property value and for loss of opportunity. In reviewing Cronk v. Central Elgin (Municipality), 2018 ONDR 3, the Referee stated, “had there been no such physical damage, there would have been no award of damages.” The Referee went on to state, at para. 281, that a causal connection is required between the condition of the drainage works and the harm for which damages are sought. The Applicants accept this position. At para. 45 of their Factum, the Applicants state that damages under s. 79 are not limited to physical damages but that a causal connection must be established between the condition of the drainage works and the damages claim, including economic damages.

[51] On this appeal, the parties accept the view that: (1) there must be a causal connection between the condition of the drainage works that a municipality failed to repair or maintain, and the damages claimed; and (2) such damages, which may include economic losses, must flow from or arise out of some physical injury or harm to property.

[52] The Applicants also submit that the Referee erred in finding at para. 280, that “[n]o harm has been done by wooden seawalls and groynes, per se, in their present condition or by any other part of the Burk Drainage Works” when that issue was not before him. However, I do not share the Applicants’ concern given that this statement was later qualified by the Referee, at para. 281:

281. I acknowledge that I have yet to receive the Municipality’s evidence or submissions from counsel about the evidence. It may well be that there is something I do not understand or some evidence I have overlooked or misinterpreted, but, at this stage, it appears to me that establishing the necessary causal connection represents a substantial challenge.

[53] The only remaining issue is whether a municipality is liable for damages under s. 79 of the Act that have been suffered before the completion of the 45-day notice period. The Referee found that such damages were not recoverable. The Referee stated:

269. The essence of subsections 79(1) and 79(2) is that a municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been given the 45-day notice specified in subsection 79(1). The applicants’ damages claims in this case indicate that they think that section 79 is to be interpreted such that, once the 45 days’ notice has been given and the 45-day grace period has expired, then the Municipality is liable for all damages, whenever caused, that can be attributable to the non-repair of the drainage works. I disagree. Counsel for the applicants has provided no jurisprudence or statutory authority to persuade me to the contrary. Subsection 79(2) of the Act seems clear that a municipality shall not be liable for non-repair until after notice has been given. Giving retroactive effect defeats the scheme and purpose of the Act.

270. Under the Drainage Act the municipality that is responsible for maintaining and repairing a drain is not liable for non-repair unless and until notice is given. The applicants place singular emphasis on the Municipality’s obligations under section 74 of the Act. But that section cannot be read alone; it must be read with section 79 which requires a 45-day notice to be given before the Municipality becomes liable for non-repair. Once the notice is given, the Drainage Act gives the municipality a 45-day grace period within which to repair the drain or to otherwise mitigate any damage arising from the non-repair; the municipality is only liable for damages arising after the grace period.

271. The applicants imply that the Municipality has been derelict in its duties under section 74 for not being more proactive, before the section 79 notice in September 2020, in maintaining and repairing the drainage works along the Lake Erie shoreline and that liability to the applicants should flow as a result. Again, I disagree. The Municipality has no liability under the Act for non-repair of the Burk Drainage Works until they have the section 79 notice and 45 days to attempt to address it or to mitigate the consequences. And again, counsel has provided no jurisprudence or statutory authority to persuade me to the contrary. [Emphasis added.]

[54] The Applicants did not advance this position on appeal, nor did they provide any analysis or authorities to support the position it advanced before the Referee. The predecessor to s. 79(2) was added as s. 80a to the Municipal Drainage Act, R.S.O. 1897, c. 226, in 1911: see An Act to amend The Municipal Drainage Act, S.O. 1911, c. 60, s. 1. Section 80a states:

80a. Notwithstanding anything contained in section 80 of this Act, the municipality whose duty it is to maintain and keep in repair a drainage work, shall not become liable in pecuniary damages to any owner of land whose property is injuriously affected by reason of the non-repair of such drainage work, unless and until after service by or on behalf of such owner of notice in writing upon the Reeve or Clerk of such municipality, describing with reasonable certainty the alleged lack of repair of such drainage work.

[55] The effect of this provision means that damages are not recoverable from a municipality in respect of any period prior to the service of the notice. In Cullerton v. Township of Logan, [1913] O.J. No. 773, Drainage Referee G.F. Henderson, K.C., stated:

9 My understanding of the present section 80a, of the Municipal Drainage Act, is that it is the duty of the land owners along the course of the drain to keep track of its state of repair, and that when any one finds that the drain is becoming out of repair to such an extent that he as an owner may reasonably anticipate damage to be caused to him, it is his duty then to notify the council of the lack of repair and of the probability of damage.

10 The council is not obliged in this respect to watch a drain from month to month, and the council does not become liable in pecuniary damages to any owner of land whose property is subsequently injuriously affected by reason of non repair unless and until after service by or on behalf of such owner of a notice in writing describing with reasonable certainty the lack of repair which it is anticipated may subsequently cause damage to the owner. It seems to me that the intention of the Legislature is clearly expressed. The new section of the Act may work a hardship in an occasional case such as referred to by Mr. Makins, but my experience throughout the province would lead me to believe that on the whole it is in the interest of the drainage of the province that that interpretation, which I am satisfied the Legislature intended, should be given to this section of the Act.

11 There was no notice of non-repair given to this township by the plaintiff or by anyone else prior to 1912, and therefore in so far as the plaintiff's damages for 1912 were due to non-repair, as distinguished from a defect in original construction, the plaintiff can not succeed.… [Emphasis added.]

[56] This approach was adopted by the Ontario County Court in Eek v. King (Township), [1970] O.R. 700.

[57] The plain language of s. 79, and the policy considerations expressed by the Referee at para. 269 of his reasons and in Cullerton justify an interpretation of s. 79 that a municipality is not liable for damages suffered by a landowner because of the condition of a drainage system until 45 days after the delivery of notice that the drainage system requires repair or maintenance.

[58] The Referee correctly found that s. 79 of the Act limits damages to those damages arising from physical injury or harm to property that occurred 45 days after notice of failure to repair or maintain the drainage system was given to the municipality. Given my finding on Issue #1, damages are recoverable after the expiry of 45 days following May 18, 2021.

[59] In summary,

(a) Damages are recoverable under s. 79(1) of the Act if: (1) there is a causal connection between the condition of the drainage works that a municipality failed to repair or maintain, and the damages claimed; and (2) such damages, which may include economic losses, must flow from or arise out of some physical injury or harm to property.

(b) Damages are only recoverable to the extent that they were suffered 45 days after the delivery of notice under s. 79(1).

ISSUE #3: DID THE REFEREE ERR IN FINDING THAT THE 1930 MCCUBBIN SEAWALL, THE 1948 MCCUBBIN SEAWALL AND THE 1949 MCCUBBIN SEAWALL HAD BEEN ABANDONED?

[60] The Applicants submit that the wooden seawalls and groynes established more than 70 years ago have not been abandoned and thus had to be maintained in accordance with their original specifications. The Municipality submits that it had the authority to “alter” these features of Burk Drainage Works. Two of the preliminary questions determined by the Referee addressed wooden seawalls and groynes added in 1930, 1948 and 1949 were subsumed into new works established in 1973 and 1974.

Preliminary Question #2 – 1930 McCubbin Seawall

[61] Preliminary question #2 asks:

Does the 1930 McCubbin Seawall as authorized by By-law No. 2736 have any continuing status under the Act or has it been subsumed into and been replaced by the Todgman clay dyke/breakwater work in Area A-2 authorized by the engineer’s report adopted in 1973 by By-law No. 5053 (the “1973 By-law”)?

Answer: No; it has been replaced by the Todgham clay dyke/breakwater work in Area A‑2.

[62] Mike DeVos, a professional engineer retained by the Municipality, concluded that the 1930 McCubbin Seawall had been subsumed into and replaced in 1973 with a new embankment wall in accordance with the Todgham 1973 report and the 1973 By-law. He noted that noted that the 1973 By-law indicates that the 2,800-foot-long timber headwall that had originally protected the dyke which was part of the original 1930 drainage works had badly deteriorated and was almost completely submerged. Nevertheless, the 1973 By-law states that the timber piles were still in good condition and that use of the remaining timber headwall could provide toe protection for a new dyke at a relatively low cost.

[63] John Kuntze, a professional engineer retained by the Applicants, concluded that the 1930 McCubbin Seawall was constructed pursuant to an engineer’s report that was adopted by the Township of Harwich’s By-law No. 2736 under the authority of the Act. Mr. Kuntze further concluded that the 1930 McCubbin Seawall had not been abandoned pursuant to ss. 19 or 84 of the Act. He further states that the Todgham 1973 report incorporated the 1930 McCubbin Seawall as part of the new drainage embankment work in 1973, and, thus, maintenance and repair of the 1930 McCubbin Seawall must be completed by the Municipality in accordance with the Todgham 1973 report. He states that the 1930 McCubbin Seawall continues to have status under the Act and it has not been abandoned under either ss. 19 or 84 of the Act.

[64] Based on this evidence, the Referee concluded that the 1930 McCubbin Seawall no longer had any continuing status under the Act as it had been replaced by the Todgham clay dyke/breakwater work. The Referee stated at paras. 22-24 of the Preliminary Issues Decision:

22. The explanation given by Mr. Kuntze in his affidavit sworn September 16, 2022 [Exhibit 21 in the Exhibit List in paragraphs 12 to 18] is that the 1930 McCubbin Seawall, as authorized by By-law No.: 2736, has not been abandoned as a part of the Burk Drainage Works pursuant to either section 19 or section 84 of the Act. However, because the Todgham & Case July 1973 Report incorporated the 1930 McCubbin Seawall as part of the new drainage embankment work in 1973, repair and maintenance of the 1930 McCubbin Seawall must be completed by the Municipality in accordance with the Todgham & Case July 1973 Report.

23. Mr. Devos reflects in his report attached as Exhibit “C” to his affidavit sworn September 16, 2022 [Exhibit 24 in the Exhibit List] that the 1930 McCubbin Seawall has been subsumed into and replaced by the Todgham 1973 A-2 report and By-law No.: 5053. Later in that report attached to his September 16, 2022 affidavit, Mr. DeVos, speaking in connection with the 1974 Todgham work in Area A-1, says that there was no equivalent to the abandonment section 19 in the legislation at the time of Mr. Todgham’s report and that the practice of that time was to look to the most recent engineer’s report for the state of the drain and that the most recent report superseded.

24. In this case, both Mr. Kuntze and Mr. DeVos get to the same place and that is that, in the Area A-2 location of the clay dyke/berm/breakwater, repair and maintenance must be completed by the Municipality in accordance with the Todgham & Case July 1973 Report authorized by By-law No.: 5053.

Preliminary Question #3 – 1948 McCubbin Seawall and the 1949 McCubbin Seawall

[65] Preliminary question #3 asks:

Do the 800 feet of 1948 McCubbin Seawall authorized by By-law No. 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No. 3401 have any continuing status under the Act or has it been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No. 5082 (the “1974 Bylaw”)?

Answer: No continuing effect; replaced.

The Referee explained his answer at paras. 27 and 28 of the Preliminary Issues Decision:

27. Let me first correct the premise of the question. The 1949 McCubbin Seawall authorized under By-law No.: 3401 involved the incorporation as part of the Burk Drainage works of 750 feet of previously constructed wooden seawall and groynes and the addition of another 1,000 feet of wooden seawalls and groynes for a total of 1,750 feet.

28. The answer to the question, as amended, is: No; as to the westerly 1,500 feet, that 1,500 feet has been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082.

[66] Area A-1 is a 1,500-foot section of lakeshore shoreline protection consisting of timber headwalls and groynes that have been capped in places with concrete. There are about 30 cottages in this area. As well, the water’s edge is an average distance of 50 feet from the road. Although the timber headwall and groynes in this area were in good condition, during storm conditions they do not prevent flooding given their low profile. Although consideration was given to repairing/improving the existing seawall, this approach was not taken as it would have required the removal of the cottages.

[67] Instead, a clay embankment on the north side of Lakeshore Road with an elevation of four to five feet higher than the existing road was selected. No work was done on the shoreline between Lake Erie and the cottages.

[68] The Referee found that the Burk Drainage Works had been altered, in that the 1948 McCubbin Seawall and the 1949 McCubbin Seawall had been replaced by the clay embankment established under the 1974 By-Law. The Referee stated at paras. 170-171:

170. With respect to 1,500 feet of shoreline infrastructure, being the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and part of the 1,750 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 to the east of that 800 feet, I have concluded that, in the particular circumstances of this case, they have been replaced by the 1974 Area A-1 work by Mr. Todgham under the authority of By-law No.: 5082 in Area A-1. My decision is based on the specific facts of this case. One of those facts is that there was no equivalent of section 19 of the Act in the predecessor legislation at the time and that, in that era, as Mr. DeVos says, the practice was to look to the most recent engineer’s report for the state of the drain and to regard the most recent engineer’s report as superseding previous reports. Another factor is that, at the time, a choice was made between the removal of the cottages to accommodate improved shoreline protection then proposed under the Drainage Act or to save the cottages from removal and provide protection of the Burk Drainage Works inland behind to the north of the cottages. In response to that choice, the 1974 work in Area A-1 added protection to the road and sandbank barrier inland from the cottages in lieu of any shoreline infrastructure protecting the cottages. Having thus traded Drainage Act shoreline protection to save the cottages, the successors-in-title to the saved cottages cannot have it both ways; those successors-in-title cannot now claim Drainage Act shoreline protection entitlement. The altered drainage works did not include any shoreline protection for the 1,500 feet of Area A-1 so, whatever shoreline protection was then in existence, lost its Drainage Act status by necessary implication.

171. My conclusion is that the 1,500 feet of 1974 Area A-1 work by Mr. Todgham under the authority of By-law No.: 5082 in Area A-1 superseded and replaced the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and part of the 1,750 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 to the east of that 800 feet such that, since 1974, there has been no Drainage Act shoreline protection infrastructure in the 1,500 foot location of the 1974 Area A-1 work and I so find. [Emphasis added.]

Analysis

[69] At the time that these by-laws were passed, a municipality under the Drainage Act, R.S.O. 1970, c. 136 (“the 1970 Act”), a municipality under s. 61 of the 1970 Act (and s. 84 of the Act) could abandon “a drainage works or a part thereof”, and thus have no further responsibility for their maintenance or repair, either on its own initiative or by petition of ¾ of the land assessed for benefit who own not less than ¾ of the area assessed for benefit. The Applicants submit that in the absence of compliance with the above requirements, the engineer had no authority to recommend the abandonment of drainage works, and thus the Municipality had no authority to abandon drainage works at the time the 1973 By-law and 1974 By-Law were passed. Further, the Applicants submit that the engineer did not have the authority to recommend in a report “the abandonment of any drain or part thereof that is no longer useful or that is being supplanted by a new drainage works” because this authority under s. 19 of the only came into force in 1975.

[70] The Applicants’ analysis ignores s. 53(1) of the 1970 Act which is the predecessor to s. 78 of the current Act. It provides that the municipality whose duty it is to maintain the drainage works may, on the report of an engineer, “construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs and other protective works as ancillary to the drainage works, or to otherwise improve, extend or alter the drainage works or to cover the whole or any part of it” (emphasis added), for the better use or maintenance of a drainage works.

[71] In respect of the 1973 By-law, the Municipality chose to subsume parts of the seawall and groynes to establish a new embankment. Given that the By-law incorporated the seawall and groynes into a new drainage embankment, the action taken by the Municipality comes within the broad scope of activities, such as permitted by s. 61 of the 1970 Act and does not represent an abandonment of part of the drainage works.

[72] The Referee made no palpable and overriding error in finding that the 1930 McCubbin Seawall did not have any continuing status as it had been replaced by the Todgham clay dyke/breakwater works constructed in 1973. This finding follows from the correct view that the seawall did not have to be “abandoned” for such works to be altered given that, amongst other things, a municipality had authority under the predecessor legislation to make alterations to parts of a drainage works on the recommendation of an engineer.

[73] This same analysis applies to the 1948 McCubbin Seawall and the 1949 McCubbin Seawall. The Referee made no palpable and overriding error in respect of his finding that:

[T]he 1,500 feet of 1974 Area A-1 work by Mr. Todgham under the authority of By-law No.: 5082 in Area A-1 superseded and replaced the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and part of the 1,750 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 to the east of that 800 feet such that, since 1974, there has been no shoreline protection infrastructure in the 1,500 foot location of the 1974 Area A-1 work….

ISSUE #4: DID THE REFEREE ERR IN INTERPRETING SECTION 79 OF THE DRAINAGE ACT AS A STRICT LIABILITY PROVISION?

[74] Section 79 is set out above.

[75] The Referee ruled that s. 79 of the Act is a strict liability provision and not subject to the law of injurious affection. The Referee stated at paras. 27 and 29 of the Actionable Issue Order:

27. In my view, section 79 of the Act is intended to extend a municipality’s liability to an owner whose property is affected by the condition of a drainage works evening though at common law such claims would be denied.

28. I am also reluctant to superimpose on section 79 of the Act an imputed prerequisite that, to qualify for damages under section 79, an applicant must prove that, but for the Drainage Act, they would otherwise have a successful common law tort claim in nuisance, negligence and/or trespass. I am cognisant of the Municipality’s submission that “injurious affection” and “injuriously affected” are synonymous and to be understood and interpreted having regard for the large body of law surrounding the concept of “injurious affection”. I am, however, not prepared to read into the strict liability statutory cause of action the equally large body of law surrounding the torts of nuisance, negligence and trespass.

In Lochan v. Binance Holdings Limited, 2025 ONCA 221, at para. 41, P.J. Monahan J.A. stated:

It is well established that the words of a statute are to be read "in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re) 1998 837 (SCC), [1998] 1 S.C.R. 27 S.C.R., at para. 21, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. The goal of the interpretive exercise "is to find harmony between the words of the statute and the intended object": R. v. Breault, 2023 SCC 9, 481 D.L.R. (4th) 195, at para. 26, quoting MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39.

[76] Subsection 79(1) of the Act establishes a statutory right to compensation. When a person is affected by the condition of a drainage works arising from a municipality’s failure to maintain or repair that drainage works, then the “municipality is liable in damages to the owner whose property is so injuriously affected.”

[77] The Applicants submit that the phrase “injuriously affected” in s. 79 has no relationship to the legal principle of “injurious affection”. Instead, the Applicants submit that the phrase “injuriously affected” refers to the harm to a property attributable to the condition of a municipal drain that has not been maintained in good repair as specified in the applicable most recent engineer’s report. The Applicants’ view that a municipality is strictly liable for damages under s. 79 of the Act is supported by Ward v. Southwest Middlesex (Municipality), 2013 ONSC 4975, at paras. 134-135.

[78] The Municipality submits that:

Property owners along the shoreline of Lake Erie have no actionable tort claim (nuisance, negligence, trespass) for damages against anyone for damage caused by Lake Erie flooding from rising water levels, storm surge and wave uprush or from the action of Lake ice or from erosion, all of which have been and are exacerbated by climate change. It is not the purpose of Section 79 to create an actionable claim for damages for injurious affection where no common law tort claim would otherwise exist but for the statutory authority of the Act; and section 79 of the Act should be interpreted accordingly.

[79] The Municipality submits that “injuriously affected” has the same meaning as “injurious affection” as was the case in R. v. Loiselle, 1962 72 (SCC), [1962] S.C.R. 624. In Loiselle, s. 18(3) of the St. Lawrence Seaway Authority Act, R.S.C. 1952, c. 242, required that the Authority “pay compensation for … lands injuriously affected by construction of works erected by it”. Like the Act, the St. Lawrence Seaway Authority Act does not define the phrase “injuriously affected”. However, the Supreme Court of Canada found that the following conditions are required to give rise to a claim for injurious affection to a property when no land is taken applied to determine when land was “injuriously affected”:

(1) the damage must result from an act rendered lawful by statutory powers of the person performing such act;

(2) the damage must be such as would have been actionable under the common law, but for the statutory powers (the “Actionability Requirement);

(3) the damage must be an injury to the land itself and not a personal injury or an injury to business or trade; and

(4) the damage must be occasioned by the construction of the public work, not by its user.

[80] A claim for injurious affection when no land is taken is meant to provide a remedy for a nuisance claim in tort that “would otherwise be barred by the common law defence of statutory authority because the alleged injury is an inevitable consequence of construction of a work authorized by statute and done without negligence”: see Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, at para. 29, aff’d 2012 ONCA 81; Wildtree Hotels v. Harrow London Borough Council [2000] 3 All ER 289, at p. 294 (H.L.).

[81] However, unlike the St. Lawrence Seaway Authority Act which establishes a right to compensation for damages arising from the construction of a seaway, liability under s. 79 of the Act is in respect of damages arising from the failure to maintain or repair a drainage works. As noted above, the defence of statutory authority only applies to damages occasioned by the construction of a public work and not by its user. The Actionability Requirement cannot be incorporated as one of the requirements for establishing a claim under s. 79 of the Act when all other requirements to establish a claim for injurious affection are not satisfied.

[82] The phrase “injuriously affected” is not used elsewhere in the Act. However, the phrase “injuriously affect” is used in s. 49 of the Act, which reads:

Where the proposed drainage works is to be undertaken within a watershed in which a conservation authority has jurisdiction, the authority may appeal from the report of the engineer to the Tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under subsection 46 (2). [Emphasis added.]

[83] As used in s. 49 of the Act, the phrase “injuriously affected” has no relationship to the law of injurious affection. This phrase should be interpreted consistently in the Act. In my view, having reference to the Concise Oxford dictionary definition of “injurious”, the phrase “injuriously affected” as used in s. 79(1) of the Act means to hurtfully impact.

[84] I conclude that the Referee did not err in finding that liability under s. 79 of the Act is strict.

DISPOSITION

[85] For these reasons, the appeals are dismissed. In accordance with their agreement, neither party is entitled to their costs.

Faieta J.

I agree _______________________________

Fregeau J.

I agree _______________________________

Sheard J.

Released: September 15, 2025