Hanek v. North Dorchester (Township), 1980 ONDR 5

Hanek v. North Dorchester (Township), 1980 ONDR 5

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

DATE OF DECISION: 1980-12-03 STATUTE: Drainage Act HEARING: 1979-10-09

BETWEEN: MICHAEL HANEK JR., MICHAEL HANEK SR., MARIE HANEK JR., MARIE HANEK SR. APPELLANTS

• AND -

THE MUNICIPALITY OF THE TOWNSHIP OF NORTH DORCHESTER RESPONDENT

APPEARANCES: C. SCOTT RITCHIE - FOR THE APPELLANTS (MESSRS. SISKIND, TAGGART & CROMARTY, LONDON, ONT.)

D. THURSTON KEE, Q.C. - FOR THE RESPONDENT (KEE, ROSS & ROBERTSON, CHATHAM, ONT.)

REASONS FOR JUDGMENT

This Hearing came on before me at the Middlesex Court House at London, Ontario, on October 9, 10, 11, 1979. The proceedings were initiated by Notice of Motion dated September 5, 1975 as an application to The Divisional Court pursuant to the Judicial Review Procedure Act, S.O. 1971, and was disposed of by that Court by Order dated October 13, 1976, referring the matter to this Court under Section 76 of The Drainage Act, R.S.O. 1970, c. 136, as amended. The Order directed:

"1. IT IS ORDERED that this matter be and the same is hereby referred to the Referee under Section 76 of The Drainage Act, R.S.O. 1970, c. 136 for his directions and disposition including the disposition by him of any collateral matters that may arise before him.

2. AND IT IS FURTHER ORDERED that the Referee has jurisdiction to dispose of this matter and any collateral matters regardless of the timeliness of the service of any Notice under Section 36 of The Drainage Act.

3. AND IT IS FURTHER ORDERED that the question of the disposition of the costs of this application shall also be referred to the Referee."

An Order for Directions was signed on May 3, 1978, by the former Drainage Referee, His Honour Judge Joseph P. McMahon. All material before The Divisional Court was directed to be considered by me and I have heard viva voce evidence, part of which I ordered transcribed, in addition to the exhibits and written arguments. In all there were over 800 pages of written material, transcripts, exhibits and arguments. The transcripts of the evidence taken were received in late January of this year. I have read all of the evidence several times.

The Appellants are farmers, owners of approximately 280 acres in the Township of North Dorchester forming part of Lot 16, Lot 17 and Part of Lot 18, in the First Concession of the said township of which 225 acres are relevant to these proceedings.

The Notice of Motion to the Divisional Court dated September 5, 1975 sets out the initial relief sought.

"1. Prohibiting the Respondent, their servants, agents or employees from proceeding to install drainage lines "A" and "B" to the Lawton Drain as set out in the plans of By-Law 34-74 for the Township of North Dorchester, upon the grounds that such By-Law authorizing lines "A" and "B" across the Applicants' property was not authorized pursuant to Section 53 of The Drainage Act, R.S.O. 1970, Chapter 136;

2. Declaring that By-law No. 34-74 is ultra vires of The Drainage Act, as far as the proposed drainage lines "A" and "B" across the Applicants' property is concerned;

3. In the form of mandamus requiring the Respondent to proceed with the hearing of an Appeal brought by the Applicants pursuant to Section 36 of The Drainage Act, R.S.O. 1970, which requires the Respondent to appoint a referee so that an Appeal might proceed;

4. Declaring the Applicants' Notice of Appeal pursuant to The Drainage Act and dated August 9th, 1974 to be an effective Notice of Appeal pursuant to Section 36 of The Drainage Act;

5. For such further and other Order as this Honourable Court deems just;"

The facts are briefly these:

Sometime in the early 1900's the Lawton Drain was constructed under a predecessor of The Drainage Act, R.S.O. 1970, c. 136, as amended. The Appellants do not appear to have questioned the origin of the open ditch of the Lawton Drain, but do question the Respondent's authority to install Branch Lines "A" and "B" as proposed in the engineer's report. Part of the Appellants' lands were assessed under S.G. Chipman and Company Limited Lawton Municipal Drain repair report of May 1956 and consequently, they knew that the Respondent considered the open ditch of the Lawton Drain to be authorized under a previous Drainage Act. The parties do agree however, that this drain did consist of an open ditch that crossed the Appellants' property in a north-south direction, beginning at Highway 401 opposite the east part of Lot 17 to Highway 401 northwesterly, westerly and then northerly through Lot 17 and an to the next concession. Apparently a sewage lagoon was built by the trailer park owners next to the Appellants' property to the northwest. The Appellants contend that the owners of this park illegally tied their sewage lagoon system into their tile drain which caused an overloading and a breakdown of this system resulting in a flooding to part of their lands.

In an attempt to solve their drainage difficulties, the Appellants and the trailer park owners independently of each other approached Council for assistance. Though Council initially felt it was a private matter, they later requested the engineering firm of H. M. Gibson Ltd. to look into the problem, and finally on October 11, 1973 appointed Gibson to "prepare a report, etc. on the Lawton Municipal Drain for repair and improvement" (Ex. #18). Gibson's report was completed on July 9, 1974 and was provisionally adopted by Council on August 6, 1974 as By-Law 34-74.

Mr. Gibson's report recommended three things to be done:

1. Clean out the open drain to the extent required to provide an adequate outlet to the adjoining lands.

2. Replace the tile drains at the North end of the trailer park with a new drain of sufficient capacity to serve the area, to be known as "A" Branch.

3. Construct a drain to afford an outlet for the lagoon area, to be known as "B" Branch.

On August 9, 1974, one of the Appellants delivered to the Township (Ex. #9):

"a formal notice that I object to the construction of the Lawton Municipal Drain Repair and Improvement and to my assessment"

and stating that:

"further particulars of my objection will be submitted at or prior to the Court of Revision Hearing"

A Court of Revision was held on September 3rd, 1974 and dismissed the Applicants Appeal. And then a further Appeal from this Court to the County Court Judge was subsequently dismissed on December 12, 1974. On December 13, 1974, this provisional by-law received its third and final reading confirming the engineer's report and became known as By-Law 34-74.

On September 10, 1974 Mr. Scott Ritchie, solicitor for the Appellants wrote to the Township Clerk (Ex. "B" to the affidavit of Michael Hanek before The Divisional Court) as follows:

" - dated September 10th, 1974.

Mr. J.M. Hunt, Clerk of the Township of North Dorchester, P.O. Box 209, DORCHESTER, Ontario.

Dear Sir:

Re: Michael Hanek - R.R. #2, DORCHESTER Tile Drain Problem

We wish to confirm that on September 3rd, 1974 the Court of Revision denied our client's application by way of appeal.

The Notice of Appeal that was filed by our clients, filed on the 9th day of August, 1974 referred to our clients objecting not just to the assessment but to the construction of the Lawton Municipal drain repair and improvement. We take the position that this Notice of Appeal was effective not just for the Court of Revision but also pursuant to section 36 of The Drainage Act which provides for an appeal to a referee. We have been instructed to proceed with this portion of the appeal and would greatly appreciate your assistance in bringing this matter on for hearing.

Yours very truly,

SISKIND, TAGGART AND CROMARTY

Per:

C. Scott Ritchie"

The Solicitors acting for the Township at that time replied on October 22, 1974 (Ex. "C" to the affidavit of Michael Hanek):

" - dated October 22, 1974.

Messrs. Siskind, Taggart & Cromarty, Barristers and Solicitors, 471 Waterloo Street, P.O. Box 2520, London, Ontario. N6B 2P5

Attention: C. Scott Ritchie, Esq.

Dear Sirs:

Re: Township of North Dorchester re Michael Hanek, Lawton Drain

We act for the Township of North Dorchester.

Our principals have drawn to our attention your letter of September 10th, 1974 to the Township referable to the Lawton Drain work.

Please be advised that no notice of appeal to the referee as contemplated by section 36 of The Drainage Act appears to have been served by your client within the time limit specified in such section and, in our view, your client's rights to such an appeal were extinguished before your letter was received.

We have reported to our principals accordingly.

Yours very truly,

STEVENSON, EVANS & POLISHUK

Per:

C. S. Stevenson

c.c. J. M. Hunt, Esq., Clerk, Township of North Dorchester"

Mr. Ritchie responded on October 31, 1974 (Ex. "D" to the affidavit of Michael Hanek) as follows:

" - dated October 31, 1974.

Messrs. Stevensons, Evans, Polishuk, Barristers and Solicitors, 170 Dundas Street, London, Ontario. N6A 1G9

Attention: Tim Wood, Esq.

Dear Sirs:

Re: Notice of Appeal from the Court of Revision - M. Hanek

Pursuant to your letter of October 22, 1974 we take the position that the original notice given to the Clerk of the Township of North Dorchester dated August 9, 1974 was a dual Appeal in that our client objected to the construction of the drain and to the assessment. At the Court of Revision we attempted to proceed with both arguments and were advised that they were prepared only to hear the question of the assessment. We advised that our notice of Appeal was two fold and we take the same position at this time. We find it most unusual that you would take the position that there was no Appeal filed when the appeal forms were in fact prepared by your client. From the first time we saw these appeals notices we took the position that they were dual notices of appeal. Surely you would want this matter tried on its merits as it was readily conceded by the Township Engineer that there was a material question of interpretation as to whether the proposed branches of A and B of the lot and drain constituted entirely new drainage or whether such drainage was a repair of an existing drain. There does not appear to be any drainage plans available for the predecessor of the lot and drain plans. If you do have copies of such plans we would greatly appreciate receiving same.

We would greatly appreciate knowing your final position with respect to our Appeal under Section 36 of The Drainage Act so that we may take the appropriate steps to protect our client's rights.

With respect to your letter on the Appeal from the Court of Revision we are not clear what you mean without prejudice to your clients right that you are obtaining an appointment for a hearing herein.

We would greatly appreciate being advised as to when the date for hearing has been received. We will be taking the position that our client receives no benefit from this drain and that the proposal itself is ultra vires. We will consider giving written argument after we have received the appointment for a hearing date.

Yours very truly,

SISKIND, TAGGART & CROMARTY

Per: C. Scott Ritchie"

There does not appear to have been any further step taken in the proceedings, or indeed any correspondence by, or on behalf of the Appellants or any of them after October 31, 1974, until the Notice of Motion to the Divisional Court on September 5, 1975, which in any way objected further to by-law 34-74 or the work done or to be done under it, and this notwithstanding that the Township Officials appear to have informed the Appellants following the dismissal of their assessment appeal to the County Court Judge in December 12, 1974, that the Township proposed to proceed with the work. Tenders were called for in the public press in January, 1975, the work proceeded openly in the Appellants' lands during the summer of 1975 and appears to have been substantially if not wholly completed by September 5, 1975.

The solicitor for the Respondent argued from three positions. Firstly, that the Lawton Drain was duly authorized under a previous Drainage Act and by inference the old tile branches which are to be replaced with Branch Lines "A" and "B", formed part of this municipal drain and under Sec. 49 the Respondent must maintain it and improve it under the authority of Sec. 53. The second argument gives the engineer the authority under Sec. 53 to install Branch Lines "A" and "B", should it be found that the main open ditch was the only part of the Lawton Drain which was authorized under a previous Act. For his last argument, the Respondent's solicitor submits that such work could be authorized under Section 55 of the Act.

Notwithstanding the inability of the Respondent to produce the original by-law, I find as a fact that the Lawton Drain was installed and maintained under by-laws of the township prior to and including the work of repair and improvement of S.C. Chipman, Consulting Engineer, consequent upon his report to the Township on May 30, 1956. I base this finding on the evidence of Mr. Howard Gibson. Mr. Gibson was particularly well qualified to express his opinion in this instance; he attended at the site on several occasions in the preparation of his report; he walked the old lines in the areas of the branch lines proposed in his report and carefully examined them. From his study of the drainage history, and his experience over a period of twenty years of drainage work for this township, Mr. Gibson was particularly competent in my view to express the opinion and reasons he gave in evidence that the old tile drains in the area of his proposed lines "A" and "B" formed part of a municipal drainage scheme that tied into the open ditch of the Lawton Drain. I accept his view that the size, material and age of the old tiles were likely installed by a Mr. Farncombe, a drainage engineer of that period.

Though many months have passed since the trial, I became more convinced each time I read the evidence that the old tile drains in the area of Branch Lines "A" and "B" could well have formed part of this municipal drainage scheme. The Appellants' solicitor found it interesting and noted in his written argument that only Mr. Gibson, and no other engineer who testified, was of the view that the area where the old tile drains which Branch Lines "A" and "B" were to replace, were formally authorized by by-law. I would expect that only Mr. Gibson could give such evidence for no other drainage engineer that appeared before this Court had the local knowledge that could establish a contrary view to my satisfaction. There was no engineering evidence that the old tile drains could not have formed part of the main open ditch. As it has been expressed on many occasions by this Court, the engineer's opinion should not be interfered with unless it has been established that he has erred in an engineering or legal way.

Mr. Todgham, an engineer, expressed the view that it would be risky without the benefit of some documentation to conclude that the area of the old tile drains could have formed part of a larger authorized municipal scheme. Mr. Gibson's evidence convinced me that the area to be drained was quite similar to that of Mr. Chipman's report, and that the open ditch of the Lawton Drain served an area that included the original tiles installed in the early 1900's. Mr. Gibson was aware of the method and the particular style of Mr. Chipman's workmanship and he identified partly from the lack of detail that it was peculiarly Mr. Chipman's handiwork to exclude the information that later engineers would have included. The more I read the evidence, the more I was convinced that there was sufficient documentation and other evidence for me to draw the conclusions I have. Similar conclusions were drawn by a former Drainage Referee, Judge S. L. Clunis, in Godo et al vs. City of Windsor 1971. In that case the by-law had been lost and His Honour inferred from other documents that there had been a by-law establishing a municipal drainage scheme. In the instant case we have, in addition to some documents, the old tile drains and the conclusions drawn by Mr. Gibson. Even the evidence that the Department of Highways (Ex. #11) believed this was a drain of unknown origin and ought to be made a municipal drain, is made by persons who did not have the local knowledge possessed by Mr. Gibson. Where compensation of allowances have been paid to an owner under the provisions of The Drainage Act, S.O. 1975, c. 79, as amended, Sec. 68 provides that the by-law and the amount paid are to be registered in the local registry office against the lands of the owner so as to put all persons on notice. No such provision existed in the 1950 legislation. In addition, the arguments made by the Appellants' solicitor with respect to drainage reservations and the reasons for them are merely conjecture. I accept Mr. Gibson's opinion on this issue and the other reasons he gave in evidence and I reject the evidence of the Appellants' engineers, Mr. H. Todgham, Mr. J.P. McIntyre and Professor J.E. Zajic, to the contrary. Their opinions did not go far enough in my view and lacked the local knowledge possessed only by Mr. Gibson and to a lesser extent, his assistant.

During cross examination (see transcript page 168, 169), Mr. Gibson replied to certain questions as follows:

"Q. Now, taking that factor in isolation, all right, the 6 inch tile that you found, would you not agree with Mr. Todgham that the fact of, and by yourself, is not conclusive one way or another as to whether that was installed under a municipal by-law of a private system.

A. Those drains that are in there actually go all the way back to the county road and at one time, probably before the improvement of the county road, probably picked up water at the county road and I did find tile going back that far. There's three and four inch tile way back to the west of the trailer camp, and I still feel that those tile are of such an age and went in at such a time, probably when Mr. Farncombe was doing work, that the likelihood is that they were built under some predecessor of their Drainage Act.

Q. The question, you see, you're not answering my question. I ask you to be fair.

A. I can't change that part of my opinion.

Q. All right.

A. I have no proof of that, that I acknowledge. I've looked for proof.

Q. All right.

A. But Mr. Todgham has one opinion and I have another opinion. My opinion is based on my knowledge of this particular locality and the record problems, one thing and another that exists. Mr. Todgham......"

In the situation before me I am not prepared to substitute Mr. Gibson's opinion by those engineers who did not all attend at the site or were not familiar with the area of this Township and had not all read the reports, specifications of plans of both Mr. Gibson and Mr. Chipman.

Branch "A" and "B" would replace the existing tile drains at a depth sufficient to support modern day machinery. The present tiles which were replaced with a larger size, would not only alleviate the Appellants' land from the drainage problem arising from the trailer camp, but would in addition, permit a systematic drainage of their own lands. It is of no consequence that Mr. Gibson was unaware of the dispute between the Appellants and the trailer park owners. This is clearly more than a mere repair in that it goes beyond the preservation of the existing tile drains. The open ditch of the Lawton Drain is to be widened and deepened so as to serve what would become an increase volume of water from Branches "A" and "B". I further find as a fact that the change of use of the adjoining lands from agriculture to a trailer park camp around 1967 have exposed the inadequacy of the old tile drainage system. I view such construction as works of repair and improvement.

The improvement of Branch Line "A" and relocating of Branch Line "B" is nothing more than a work of improvement permitted under Sec. 53 and under Sec. 49 of The Drainage Act the Respondent has an obligation to maintain a municipal drain. The Appellate Division has on an earlier occasion declared that the improvement of a municipal drain or part of it is for the better use of maintenance within the meaning of Sec. 53.

In Re: Township of Gosfield South and Township of Gosfield North 1917 CanLII 538 (ON SCAD), 1917, 39, O.L.R., 93, Sec. 77(1) as amended by 6 Geo. V. Ch. 43, Sec. 6 having similar intention as Sec. 53 of The Drainage Act, R.S.O. 1970 c. 136 as amended. Meredith C.J.O. said at page 97:

"In my opinion, Sec. 77 was designed to afford an alternative mode of effecting the improvement of an existing drain, and to dispense, in the cases with which the section deals, with the necessity of the petition for which Sec. 3, provides. The reasonableness of such a provision and the necessity for it are obvious. The result of the existence of the conditions mentioned in Sec. 77 might injuriously affect only a few of the persons who were charged with the cost of the construction and maintenance of the drain, and in such a case it would not be likely that a majority of them could be get to petition for the needed improvement."

See also, Garrow J.A. Re. Township of Oxford and Township of Aldborough 1913, 27 O.L.R. at page 118 to the same effect.

The ensuing By-Law 34-74 is a quite ordinary event necessary for the repair and improvement of an existing drainage works previously authorized by a predecessor of The Drainage Act and as such it was done in compliance with Sec. 53 of the Act Mr. Gibson did what his mandate required of him.

No notice pursuant to Sec. 44 of the Act having been served by the Appellants, such work as authorized by By-Law 34-74 was final. The request for a Prohibition as made in paragraph one of the Appellant's Notice of Motion must accordingly be refused, not only because their request comes too late, but such work was within Council's jurisdiction and properly authorized by By-Law 34-74. I am ever mindful of Chancellor Boyd's opinion expressed in Stephens vs. The Township of Moore (1894) 25 O.R., 600 at 605:

"In matters of drainage....the policy of the Legislature is to leave the management largely in the hands of the localities, and the Court should be careful to refrain from interference - unless there has been a manifest and indisputable excess of jurisdiction, or an undoubted disregard of personal rights."

Having found that Branches "A" and "B" were properly within the competence of the Respondent to pass By-Law 34-74, the application for a Declaration as requested in the Appellants' Notice of Motion, paragraph two is denied.

Dealing with the appellants' paragraph three of their Notice of Motion which reads:

"In the form of mandamus requiring the Respondent to proceed with the hearing of an Appeal brought by the Applicants pursuant to Section 36 of The Drainage Act, R.S.O. 1979, which requires the Respondent to proceed appoint a referee so that an Appeal might proceed;"

The burden was upon the Appellants to pursue their own recourse and to seek any remedy they wished in this Court within its jurisdiction. There is no responsibility upon the Respondent to "appoint a referee so that an Appeal might proceed". Much time could have been saved from the outset had they availed themselves of the provisions of the Act and the Regulations thereto. Even an application to quash By-Law 34-74 under Sec. 44 might have brought in the matter earlier. In any event, as the work was virtually completed when the Application was made, such an order would be futile and the Application is refused.

In respect of the validity of the alleged Notice of Appeal (Ex. #9), the disposition of it is left to this Court to determine. I cannot conceive that this so-called Notice of Appeal was other than an Appeal under Sec. 31(1) of the Act to the Court of Revision; for his objections were apparently addressed solely to that Court. He indicated his "objection will be submitted at or prior to the Court of Revision hearing" (see Ex. #9), but apparently none were made prior. So whatever Mr. Hanek Jr. had in mind, it did not manifest itself in any form until the Court of Revision hearing on Sept. 3, 1974. This view appears to have been shared by the Township Officials and their solicitor from the outset.

When objecting to an engineer's report, Sec. 36 of the Act sets out three distinct headings. These are:

1. on the ground that it does not comply with the requirements of this Act,

2. the benefits to be derived from the drainage works are not commensurate with the estimated cost,

3. The drainage works should be modified on grounds to be stated.

To allow such a general statement as "I object to the construction of the Lawton Municipal Drain" is not in my view what the legislature intended as an appeal under Sec. 36. Previous decisions of this Court have made it clear that the grounds of appeal under Sec. 36 must set out clearly the particulars relied upon on at least one of the three headings of Sec. 36. This essential prerequisite was not complied with by the Appellants; the Respondent, quite naturally, pursued the course of action it did right up to the time of construction. No application was ever made to any competent court to set aside or amend the engineer's report or to enjoin the work until it was too late.

The Order of The Divisional Court dated October 13, 1976, referring the matter to this Court under Sec. 76 of The Drainage Act, afforded the Appellants the opportunity through the Order dated May 3, 1978, of Judge J. McMahon to file a Statement of Claim and therein to raise the issue of damages for the first time in these proceedings. The Respondent's solicitor contended that not only had the limitation period under Sec. 74(1) expired, but Sec. 74(2) requiring notice, was not complied with.

"74(1) - Proceedings for the determination of claims and disputes and for the recovery of damages by reason of negligence, or by way of compensation or otherwise, or for a mandamus of an injunction, shall be instituted by serving ten clear days notice setting forth the grounds of the claim upon all persons concerned.

74(2) - A copy of the notice with an affidavit of service thereof shall be filed with the clerk of the county court of the county in which the initiating municipality is situate, and the notice shall be filed and served within two years from the time the cause of complaint arose. R.S.O. 1970, c.136, s.74."

The evidence discloses that as late as September 7, 1976, the engineer, his assistant and others attended at the site to discuss deficiencies in the construction which appears to have been substantially completed in August of 1975.

As to when the prescriptive period begins to run, I refer to Frank B. Proctor's manual on the Municipal Drainage Act, Part 1 page 179 wherein he stated:

"The Court of Appeal were called upon, in Thackery v. Tp. of Raleigh (1898) 25 A.R. 226, to determine the time from which the prescriptive period of two years began to run, where the damages claimed arose out of the taking of land and its injury and severance in the construction of the drain. The Court held that claims of this nature must be prosecuted within two years from the completion of the drain, Maclennan J.A. saying (p.241): "drain such as this is not like a sewer constructed of brick or cement, and does not become the property of the municipality, and the cause of complaint to the landowner arises when the work is complete, and when the municipality has done all it intends to do for his protection"."

The Statement of Claim dated May 12, 1978 was well within the prescribed time limit and I so find.

Dealing with the Respondent's argument that no notice was served in compliance with Sec. 74(2) of the Act. The well known drainage case of Williams v. Township of Raleigh, 1 C & S, 1 at 51 Lord McNaughten in discussing Section 583(2) of the consolidated Municipal Act 1892 57 Vic. CL. 56 which portions later were to become part of The Drainage Act 1894, similar to the present Sec. 74(2):

"However this may be, their Lordships do not think that the language of sub-section 2 of Section 583 is so clear as to take away the right to bring as action for damages without notice - a right to which a person injured would prima facae be entitled."

I am, however, prepared to accept the Appellants' Statement of Claim as being the required statutory notice, and the subsequent filing of it with this Court, and therefore, the provisions of Sec. 74(1) and 74(2) have been sufficiently complied with.

The Appellants' Statement of Claim asks for the following relief:

"(a) general damages in the sum of $10,000.00;

(b) special damages in the sum of $50,000.00;

(c) interest on such sum as is found by this court to be owing to the Plaintiffs, pursuant to The Judicature Act, and amendments thereto;

(d) a declaration that the Municipality of the Township of North Dorchester did not have the right to construct branch lines A and B of the Lawton Drain across from the Applicants' lands, under the authority of Section 53(1); of The Drainage Act, R.S.O. 1970, Chapter 136;

(e) a declaration that By-Law #34-74 of the Township of North Dorchester is ultravires Section 53(1) of The Drainage Act, in respect of the provisions thereto relating to branch lines A and B;

(f) a mandatory injunction requiring the Defendant to remove branch lines A and B and to restore the Plaintiffs' lands to their former condition;

(g) their costs of this action on a solicitor and client basis;

(h) such further and other relief as to This Honourable Court may seem just."

No evidence was offered to this Court that the drainage scheme propounded by Mr. Gibson was not sound and did not accomplish the purpose for which it was intended, namely, to relieve the Appellants' lands from the overflow of water from the trailer park camp and to give the Appellants further opportunity to systematically drain their own lands.

The general rule has been formulated that, a municipality is answerable on damages for all injuries sustained as a result of the negligent of improper construction of operation of a drainage work is established.

Bradley vs. Twp. of Raleigh 1905, 10 O.L.R. 201 at 204 Valad vs. Twp. of Colchester S. 1895 CanLII 18 (SCC), 1895 24 S.C.R. 622

The claim for special damages is itemized in the Appellants' written argument as follows:

1. Erosion $2,000.

2. Crop loss to date of $423 per year based on trial grain only and $1,939 per year based on only partial tobacco use.

3. Future crop loss $25,000 based on grain only (assuming 60 years) and $116,000 based on partial tobacco use.

4. Retiling $5,000.

5. Tile outlets $1,000.

6. Fencing $3,000.

7. Pond expansion $666.

8. Weir arrangement $600.

One of the Appellants' expert engineers, a Professor Zajic, whose specialities are in the field of biochemistry and water pollution, but not drainage systems, gave evidence that erosion of the Main Lawton Drain had resulted in a loss of approximately $2,000 of soil. In preparing his report, Mr. Gibson gave the following evidence (see page 142, line 17):

"Well, that type of a drain up to that time was being done much in the manner that we recommended in this report. You know you're going to have erosion. You generally, you work on the principle of trying to construct this drain and go back at a later date and do a cleanout only of the section, the bottom, which we can now accomplish because of better equipment. There's been one further change since that time, and in the last two or three years it's become a more common practice now, to do some work of treating the banks to try and encourage growth of vegetation on them but this is - this practice has only started coming on the last two of three years. If you had tried something like that at the time of this report, you more commonly got a lot of objection, because of the additional expense."

I accept the principles as formulated by His Honour Judge S. Clunis, a former Drainage Referee, in the case of Murray v. the Township of South Gower, February 1973, at page 8:

"I turn finally to the claim for damage caused by erosion. It appears that the Township at its own expense supplied gravel to restore the bank of the drain where it had eroded. The plaintiff's claim is limited to labour and materials necessary to fence the eroded area until this had been installed. I have examined the report to ascertain whether or not there was any provision in the report for protection against damage of this kind. I found no such provision. I fail to see how the Township can have any liability for failure to do work which the report did not call for. I do not think that failure to incorporate such protection in the report constitutes negligence. The engineer in his evidence has pointed out what I believe is the generally accepted principal. It is possible to design a drain many different ways. Each design must take into account the economics of the situation. That is, a scheme should take into account such things as the value of the land to be drained, its elevation related to its proposed outlet, and the nature of the soil, among other things. If the cost of a proposed scheme exceeds the value arising from it, the report will be set aside. Therefore, an engineer may be obliged, in the exercise of his judgments, to propose a work that will not bring about the best possible drainage. It is open to ratepayers, when the report is read by council, to ask for changes and improvements for which they are prepared to pay. However, when a report is adopted the council's obligation is to secure a work substantially in accordance with the report. It is generally not liable for damages to lands of an owner if this has been done. Each landowner has the right to determine how he will use the drain. He may tile his land or he may construct open ditches in order to vent water into the drain. Similarly if his land requires to be protected from erosion this generally is the landowners' responsibility."

I accept that practice and can in no way ascribe negligence to the Municipality for the failure to make such a provision in the report which had been approved by By-Law 34-74. In addition, Paragraph 14 of Mr. Gibson's report under the heading, "EXCAVATION" reads as follows:

"Both sides of an open drain are to be sloped one foot horizontally to one foot vertically or as otherwise shown on the accompanying profile. The drain shall have the full specified bottom width at the grade lines."

This is the normal ratio and I heard no evidence that the report was in error either from an engineering or legal point of view.

Items 2, 3, 4, and 5 of the Appellants' Statement of Claim are all attributable to erosion. No negligence having already been found against the Respondent for erosion, it therefore follows that any claim arising out of it must be dismissed.

The claim for damages for fencing falls into three categories:

1. along the open ditch of the Lawton Drain

2. Internal fencing

3. Loss of fences caused by pond extension

For the reasons already given, the claim for item 1 above arises out of the erosion for which no claim can be sustained. Mr. Gibson did consider and testified (see page 149, line 12) whether he ought to have made compensation for the internal fencing as part of the allowance for damage to land under Sec. 8(1) of the Act and I do not consider that any further award should be made for that item. As well, Mr. Gibson's report anticipated the enlarging of the pond and it follows that there could be no allowance made. Even if an allowance could have been made it is doubtful that the Act authorizes the Drainage Referee at this point in time to change any of the allowances under Sec. 8(1).

Mr. Gibson's report made an additional provision under the heading "Farm Ponds" as follows:

"If, at the time of construction it becomes apparent that the cleaning of the open ditch reduces the holding capacity of any pond adjacent to the drain, the pond(s) shall be enlarged to give the same capacity as prior to construction. The cost of enlarging the ponds shall be borne by the drain as an extra."

Mr. Gibson testified (see page 144, line 12):

"We deepened the pond on Mr. Hanek's property and we also extended it westerly and in doing so, we increased it's total cross-section, total surface area approximately a third again from what it had been. This was in an effort to ensure that we left him with at least the same storage capacity as he had prior to construction."

From the evidence I have concluded that the extension to the farm pond was constructed in accordance with Mr. Gibson's report and consequently, I can find no negligence in the part of the Respondent. The claim for this is refused.

Lastly, Sec. 8(6) of the Act states as follows:

"If the engineer thinks it expedient to make an allowance for severance to an owner instead of providing for the construction of the replacement, enlargement or other improvement of a bridge as provided by subsection 4 or 5, he shall in his report provide for payment to the owner of such amount as appears just by way of allowance for severance."

Mr. Gibson made an allowance in his report of $600 for well casing as is his requirement under Sec. 8(6) of the Act. The Appellants took it upon themselves to invest $1,000 for the same material the report specified to be used. The report has long since been finalized and the Appellants have known the allowance to be given them by the report. No doubt it appears to them that the engineer has not been generous in his allowance, but I feel there is no jurisdiction for me to change this amount.

The appellants' claim for special damages are therefore dismissed.

The pleadings of the Appellants for general damages appear to be twofold:

(1) paragraph 14 of their Statement of Claim

"The Plaintiffs further state that as a result of the arbitrary and capricious action of the Defendant in proceeding with the construction of drainage lines A and B notwithstanding the objections of the Plaintiffs, the Plaintiffs have suffered great mental and emotional upset, and their enjoyment of life has been lessened."

(2) that Council of North Dorchester did not act in good faith in dealing with the Appellants' objections.

Having found no negligence against the Municipality I cannot in any way find fault for mental and emotional upset of the Appellants. With respect to municipal councils exercising their powers in good faith, the general rule would appear to have been established in the case of Bell Telephone Co. vs. Owen Sound (1904) 8 O.L.R. 74, as well as the duties imposed on them by the Municipal Act.

The appellants' claim, paragraph 15(c).....

"interest on such sum as is found by this court to be owing to the Plaintiffs, pursuant to The Judicature Act, and amendments thereto;"

.....must fail as there was no award given.

Paragraphs 15(d) and 15(e) of the Appellants' Statement of Claim reads as follows:

"(d) a declaration that the Municipality of the Township of North Dorchester did not have the right to construct branch lines A and B of the Lawton Drain across from the applicants' lands, under the authority of Section 53 (1) of The Drainage Act, R.S.O. 1970, Chapter 136;

(e) a declaration that By-Law #34-74 of the Township of North Dorchester is ultravires Section 53 (1) of The Drainage Act, in respect of the provisions thereto relating to branch lines A and B;"

.....must also be dismissed for the reasons given earlier that By-Law 34-74 was intravires of The Township of North Dorchester to enact under Sec. 53(1) of The Drainage Act, R.S.O. 1970, c. 136, as amended.

Consequently paragraph 15(f).....

"a mandatory injunction requiring the Defendant to remove branch lines A & B and to restore the Plaintiffs lands to their former condition;"

.....must as well be refused.

Costs of the proceedings both here and in The Divisional Court shall follow the event and shall be paid by the Appellants. As their claim was made on a Supreme Court scale, costs shall be paid in that level. I fix the costs of the Township engineer for his preparation and his attendance in Court for giving evidence at $350.00.

Dated at Newmarket this 3rd day if December, 1980.

William D. Turville Drainage Referee

JUDGMENT

This action coming on for trial on the 9th, 10th and 11th days of October, 1979, in the City of London in the County of Middlesex, in the presence of Counsel for all parties, upon hearing read the Order of the Divisional Court dated the 13th day of October, 1976, and the pleadings herein and hearing the evidence adduced and what was alleged by Counsel aforesaid, this Court was pleased to direct this action to stand over for Judgment and the same coming on this day for Judgment:

1. THIS COURT DOTH ORDER AND ADJUDGE that all claims of the Appellants be and the same hereby dismissed.

2. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the Appellants shall pay to the Respondent its costs of this action forthwith after taxation thereof on the Supreme Court scale.

3. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the Appellants shall pay to the Respondent its costs of proceedings in the Divisional Court in accordance with its Order of 13th October, 1976, forthwith after taxation thereof on the Supreme Court scale.

Drainage Referee

CERTIFICATE

THIS IS TO CERTIFY that upon Motion made this day on behalf of the Plaintiffs, Michael Hanek Jr., Michael Hanek Sr., Marie Hanek Jr., and Marie Hanek Sr., by way of appeal from the Judgment of the Drainage Referee dated the 3rd day of December, 1980, in the presence of counsel for the Defendant, and upon hearing read the pleadings and the evidence adduced at the trial, and the said Judgment, and upon hearing counsel aforesaid:-

1. THIS COURT DID ORDER that the said appeal be and the same was dismissed.

2. AND THIS COURT DID FURTHER ORDER that the Plaintiffs do pay to the Defendant its costs of this appeal forthwith after taxation thereof.