MacSweyn v. Lochiel (Town), 1983 ONDR 1

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

DATE OF DECISION: 1983-05-18 STATUTE: Drainage Act HEARING: 1982-02-03

BETWEEN: DONALD RALPH MACSWEYN Appellant -and- LECOMPTE, MOLLER AND ASSOCIATES LIMITED, MCNEELY ENGINEERING LIMITED, MENARD CONSTRUCTION LIMITED, and THE CORPORATION OF THE TOWNSHIP OF LOCHIEL Respondents

REASONS FOR Judgment

Counsel: Gary N. Feldman, Esq., Burgess, Macdonald, Bassel, Sullivan & Leake, Solicitor for the Appellant J. Murray Davidson, Esq., Solicitor for the Respondent, The Corporation of the Township of Lochiel J. Bruce Carr-Harris, Esq., Scott & Aylen, Solicitor for the Respondents, Lecompte, Moller & Associates Limited and McNeely Engineering Limited

This Hearing was held in the City of Ottawa on February 3rd, 4th, 5th, 8th and 9th, 1982. There were in excess of 800 pages of transcript and over 80 exhibits. In all, nine witnesses gave evidence, five of whom were licenced under the Professional Engineer’s Act, R.S.O. c. 394. The action was commenced by Writ of Summons in the Supreme Court of Ontario on August 3rd, 1977 and came on for trial at Cornwall before the Honourable Mr. Justice Craig on November 6th, 1979. His Lordship referred it to me under Section 119(1) of the Drainage Act, Statutes of Ontario, Chapter 79, as amended. A similar section, 76(1) exists under the Drainage Act, R.S.O. 1970, Chapter 136, as amended.

The R.F. McLennan Drain was originally an Award drain under the Ditches and Water Courses Act. Under that Award, water flowed across an open ditch, there were no tiles for subsurface drainage installed at that time. It was intended in a report in 1961 that part of the Award drain, the Main Branch and East Branch would be maintained and improved under Section 2 of the Municipal Drainage Act, R.S.O. 1960, as amended, and as a result By-law 508/61 was enacted on the 1st day of August, 1961. Some of the owners of the land affected by the Award, namely the West Branch and South Branch did not wish to be brought within the jurisdiction of the Drainage Act as it existed at that time. Approximately 370 acres were affected in all and it is to be noted that the watershed shown on the Plan of the R.F. McLennan Drain, dated February 13th, 1961 appeared to be similar to the watershed as outlined in the Plan of McNeely, Lecompte & Associates Limited, dated March 1975, for the current undertaking. As directed by His Lordship, proceeding was commenced in this Court by Notice of Motion dated May 5th, 1980 and filed August 1st, 1980. There was subsequently a preliminary application heard on February 23rd, 1981 at Newmarket, Ontario. Apparently there was some misunderstanding between the solicitors as to which Drainage Act should apply, but it was finally agreed between them that the R.S.O. 1970 Drainage Act, Chapter 136, as amended, was the legislation which should govern these proceedings, and with that I concur.

The Township enacted By-law 769/75 in response to a petition to improve drainage under the old By-law 508/61 which appeared to now include the West Branch and South Branch of the Award.

The main thrust of the Appellant’s case for negligence was directed against two engineering firms - McNeely Engineering Limited and Lecompte, Moller & Associates Limited. The former was issued its Articles of Incorporation on November 10th, 1975. The final payment from the Township of Lochiel to the firm of McNeely Lecompte & Associates Limited for the new work under By-law 769/75 was requisitioned by letter from its officer, P. McNeely, on November 27th, 1975, only seventeen days after the incorporation of McNeely Engineering Limited. Mr. P. McNeely was the engineer of McNeely, Lecompte & Associates Limited, as it was known at that time, charged with the responsibility of preparing the engineering report of that firm as requested in the resolution of the Township dated November 21st, 1974. It appeared from the evidence of Mr. McNeely that the engineering firm of McNeely, Lecompte & Associates Limited merely changed its name sometime prior to the Writ of Summons being filed in Toronto. I accordingly now rule that McNeely Engineering Limited cannot be liable for acts that took place prior to its existence.

In addition, at the outset of this Hearing, I was advised that the claim against Menard Construction Limited was to be dismissed without costs and I signed the Consent Order on February 10th, 1982. Consequently, in the original Writ of Summons issued in the Supreme Court of Ontario, to the proceedings in this Court by way of Notice of Motion dated May 5th, 1980, there were some six Defendants made party to the original action. However, only four remained at the commencement of this Hearing.

In his Statement of Claim in the Supreme Court of Ontario the Plaintiff (Appellant), claimed the following:

"24. (a) Damages to crops and land at the time of construction of the drainage system in the amount of $10,000.00.

(b) recurring damages to soil, lands and fields in the amount of $75,000.00.

(c) recurring loss of profits from damaged crops in the amount of $75,000.00.

(d) costs of redesigning, enlarging and repairing the drainage system in the amount of $75,000.00.

(e) Loss of value of land in the amount of $50,000.00.

(f) Declaration setting aside the Municipal assessment herein.

(g) Interest at the rate of 5% per annum pursuant to the Judicature Act, as amended.

(h) his costs of the action; and

(i) such further and other relief as counsel may advise and this Honourable Court permit."

When the action came before Mr. Justice Craig for trial on November 6th, 1979 at Cornwall, His Lordship stayed it to allow the Plaintiff (Appellant) to seek his relief in this Court under the provisions of the Drainage Act. My Procedure Order of December 23, 1981 provided in part that: "The pleadings and proceedings being in the Supreme Court of Ontario Action No. 15719-77 (Toronto) to form part of these proceedings."

It is to be noted that His Lordship in staying the action held that the Plaintiff was not entitled to the relief sought in Paragraphs 24(d) and 24(f) of the Statement of Claim and his reasons I accept. He said:

"The action shall be stayed to permit the Plaintiff to take such proceedings under the Drainage Act as may be advised for the completion (or repair, if that is the more correct word) of the drainage work; and in those proceedings the Plaintiff shall be entitled to seek all the relief under the Drainage Act that he is seeking in this action. The action will be stayed sine die for at least ten months to permit the Plaintiff to take such proceedings."

It appears to me that as a result of His Lordship’s views, the Notice of Motion filed in this Court on August 1st, 1980 following the Township’s solicitors being served on June 4th, 1980 the relief the Appellant now seeks has been added to the claim in the Supreme Court of Ontario. In addition to the claims for damages, the Appellant has added the further claims for:

"(e) Directing the Respondent, the Corporation of the Township of Lochiel to complete the R.F. McLennan Municipal Drain in accordance with Township By-law 769/75;

(f) In the alternative, directing the Respondents or any of them, to complete, improve or repair the R.F. McLennan Municipal Drain in accordance with accepted and proper engineering design and specifications."

The Appellant now seeks a mandatory order under Sections 73, 74 and 76 of the 1970 Drainage Act, Chapter 136:

"73. Subject to Section 76, applications to set aside, declare void or otherwise directly or indirectly to attack the validity of any petition, report of an engineer, resolution of a council, provisional by-law or by-law relating to a drainage works, as well as all proceedings to determine claims and disputes arising in respect of anything done or required to be done under this Act or consequent thereon, or by reason of negligence, or for a mandamus or injunction, shall be made to and shall be heard and tried by the referee, who shall give his decision and his reasons therefore. 1962-63, c.39, s.73.

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 or an injunction, shall be instituted by serving ten clear days notice setting forth the grounds of the claim upon all persons concerned.

(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 clause of complaint arose. 1962-63, c.39, s.74.

76.-(1) Where an action is brought or is pending and the court in which the action is brought or is pending or a judge thereof is of opinion that the relief sought therein is properly the subject of a proceeding under this Act or that it may be more conveniently tried before and disposed of by the referee, the court or judge may, on the application of either party, at any stage of the action make an order transferring it to the referee on such terms as appear just, and the referee shall thereafter give directions for the continuance of the action before him.

(2) This section applied only where the action is brought within the period limited by this Act for taking proceedings on notice. 1962-63, c.39, s,76."

It appears at first glance that the Appellant is clearly too late, his claim for mandamus having been statute barred by virtue of Section 74(2) of the Drainage Act and that he would therefore be limited to the same relief he sought before Mr. Justice Craig, as stated in His Lordship’s Order for staying the action, as well as to such relief as is available to him under the provisions of the Drainage Act. It may well be that there is no further relief under the Drainage Act as directed by His Lordship’s Order. In view of His Lordship’s direction of November 6th, 1979, I must conclude that the Appellant’s claim is to be restricted to paragraphs (a), (b), (c), (e), (g), (h) and (i) of his Statement of Claim. The monetary relief sought in the Statement of Claim is similar to the amounts in the Notice of Motion before me. It therefore appears that the remedies requested in paragraphs (e) and (f) of the Notice of Motion in this Court are prescribed. I assume that His Lordship was not presuming that the period of limitation imposed by Section 74(2) was to be extended. I am also of the opinion that it was only because of Mr. Justice Craig’s Order that the Appellant asked for the further relief; the damage having occurred in or about 1976, some four years before the Notice of Motion before me. Mandamus is a separate remedy under those Sections of the Act. Though these issues were not raised by any party at trial, this Court must concern itself that the remedy sought was not prescribed.

In this law suit, the Appellant alleges negligence for the design, implementation and supervision of the construction in the work to be undertaken under By-law 769/75, and as a result suffered damage to his land and crops as pleaded in the Statement of Claim. The Appellant is the owner of land to the north of County Road 24 in the Township of Lochiel forming the north half of Lot 34, Concession VII. The engineer’s report was adopted by provisional by-law and subsequently approved by By-law 769/75 which included the Main Drain and Branches I, II and III. The upstream and downstream portions of the Main Drain and a small part of Branch I are located on the Appellant’s lands. All three Branches and the upstream and downstream portions of the Main Drain outlet into the Rigaud River running through the Appellant’s property. The expert evidence led by the Appellant could be directed only against the Respondent engineering firm of Lecompte, Moller & Associates Limited. For convenience I shall refer to this Limited Company as the "firm" and Mr. P. McNeely who designed the report for the "firm" shall be referred to as the "engineer".

The "firm" on the other hand, contended that it was interfered with by the Appellant during construction and was unable to complete the work thereby causing the damage alleged. It appears to me that the Appellant, having discovered he was too late to appeal under Section 36 to have the scheme modified, so as to suit his personal needs, or that the engineer did not follow the requirements imposed on him or that the scheme as proposed in the report would not work, has sought to circumvent the effect of that delay by pleading negligence.

The decision of Judge Clunis, Drainage Referee, in The Corporation of the Township of Woodhouse vs. Joseph Tchorek and Irene Tchorek 1972, the Appellant, a farmer, refused the engineering staff and prospective contractors permission to enter his land to stake the drain. The time for appeal of the provisional by-law and by-law had expired. The Township brought an application for an interim injunction. A summary of the evidence on behalf of the landowner given by an employee of the Ontario Federation of Agriculture stated:

1. The farmer’s tobacco field would be adversely affected if the drain were constructed.

2. The level of water in the defendant’s field would be affected.

3. That no drain would be necessary if changes were made to the adjacent road.

In granting the injunction and dismissing the farmer’s appeal Judge Clunis, Drainage Referee, said:

"these submissions might have carried weight if the Defendant had applied to have the report set aside, as he had a right to do, something over two years ago."

This was an obvious reference to an appeal under Section 36 of the Act. As the claim based on negligence falls within Section 73 of the Drainage Act, I must deal with it separately on the merits.

The authority to pass By-law 769/75 according to the report of the "firm" was pursuant to Section 53 of the Drainage Act. The statute imposes no duty on the Township to receive a petition to improve the existing drainage works as were constructed under By-law 769/75. On the other hand, the recitals set out in that By-law refer to the number of persons required having petitioned for drainage works. These recitals may be taken as prima facae evidence of its authority to pass the By-law, unless contradicted by other evidence. It appears to me, however, that that part of the original Award brought under By-law 508/61 would now come under Section 53 of the Act requiring no petition. Those lands that remained part of the Award would now be brought under the Drainage Act and therefore a petition may have been required to cover this new scheme to bring it within the jurisdiction of the Drainage Act. I shall deal with the matter on the assumption that a petition was required.

No appeal having been made under Section 36, the report was adopted by provisional by-law on May 13, 1975. As well, there being no appeal under Section 44, notwithstanding the procedural errors of the Township, with which I shall deal later, The By-law was confirmed.

The Appellant cannot now complain in view of the times prescribed by Sections 36 and 44 that he did not receive the notice to attend the meeting of Council on May 13th, 1975 and accordingly had no knowledge of the report of that meeting. Mr. McNeely testified that the Appellant attended the May 13th, 1975 meeting to discuss the report at the Township Offices and that he left the meeting in the company of the Appellant. The Clerk-Treasurer of the Township of Lochiel, Mr. McNaughton stated that he personally mailed the required notices in compliance with the Act at Dalkeith, Ontario the nearest Post Office to the Appellant’s farm. He testified that he verified each name and stated that he had gone through the same procedure when he had mailed the assessment notices at an earlier date, which the Appellant acknowledges having received. Mr. McNaughton stated that he recalled the Appellant attending at the Township offices to pick up the engineer’s report having indicated to him that he had lost his copy. This can only be a reference to the one forwarded to him with the notice of that meeting pursuant to the Act. I accept the evidence of Mr. Terry, a neighbour of the Appellant who was also an assessed owner, and as well had received the notice to attend the meeting of May 13th, 1975. He was positive in his recollection that the Appellant was not only at that meeting, but had asked Mr. McNeely some questions. I have had the opportunity of observing the Appellant, and accept the evidence of Messrs. Terry, McNaughton and McNeely and reject the evidence of the Appellant. I find as a fact that the Appellant did attend that meeting of May 13th, 1975. I agree with counsel for the Respondent "firm" during final argument that the Appellant was most "selective" in his answers during cross examination. In my view the procedural steps were complied with by both the Township and the "firm" and no statutory breach of duty can be attributed to either party on this issue.

The Appellant takes the position by virtue of Section 5 of the Act that the Respondent McNeely, Lecompte & Associates Limited breached its statutory duty by not designing, implementing and supervising a scheme as stated in the petition.

Section 5 of the Act reads as follows:

"5. The engineer shall, to the best of his skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to him in connection with any drainage works and make a true report thereon."

In addition he takes the position that this statutory breach of the Act was further compounded by the engineer’s failure to attend at the Appellant`s property to discuss his "firm’s" report. There was no evidence that there had been any errors in the report which may have required correcting or for any reason before the By-law was passed or that the report had been referred back to the "firm" by the Township for reconsideration as provided by the Act. The "engineer" was not in my view obliged to attend "on site" with the owners only to discuss the proposed report. There was, however, some evidence that Mr. McNeely did attend at the Appellant’s property in March of 1975. If that was a requirement of the Act which was not complied with, then the Appellant ought to have appealed under whichever option he thought was available to him under Section 36. Notwithstanding, there is sufficient evidence to find as a fact that Mr. McNeely did attend at the site and I accept his evidence. In any event, I fail to see any statutory duty requiring the "firm" to have their "engineer" attend at the property of the Appellant. It may be politic but the failure to do so cannot be a breach under Section 5 of the Act as no duty was imposed by statute as it was in the subsequent Drainage Act, 1975 Statutes of Ontario, c.79 as amended.

The Appellant further argues that the requests of the assessed owners in the undated petition were not followed by the "firm" who prepared the report and therefore it was as well a breach of Section 5(supra) of the Drainage Act.

Mr. Slater, an engineer with the Ministry of Agriculture and Food, in his enthusiasm to promote an improvement of the existing drainage scheme outlined to the Appellant that after certain government grants the existing R.F. McLennan Drain as the Appellant knew it could disappear with the installation of buried tiles. He even suggested the cost and tile sizes likely to be installed. This appears to have appealed to the Appellant, who would thereby have obtained a better access to all of his lands, easier movement of his equipment as well as the recapture of land for cropping. At trial, however, this engineer testified that he did not design drainage reports, plans, etc. I have no doubt that the Appellant was under the mistaken belief that the petition and the requests in it were necessary to initiate the improvements on his land that were to follow under the original By-law. This engineer testified he drafted the petition himself, but it is unclear if he circulated it to the various assessed owners. Where the drainage areas should have been described in the petition a request of the owners was inserted in its place. The petition reads as follows:

(The Drainage Act, R.S.O. 1962, Section 3, Form 1)

PETITION FOR DRAINAGE WORKS

We, being owners, as shown by the last revised assessment roll, of lands in the Township of Lochiel in the County of Glengarry, requiring drainage, hereby petition that the area more particularly described as follows:

"We request that the lower section of the R.F. McLennan Drain be improved and that branches be added were necessary in order to improve the drainage in this section of land. We request that consideration be given to this use of covered municipal drains were feasible."

This government engineer might well have used more discretion in his discussions with owners. Perhaps he should have made it very clear in writing to all owners that any scheme that he might discuss could have no bearing on that proposed by the engineer appointed by the Township. In any event this was not done. These conversations between the government engineer and the Appellant may well have been the catalyst that fuelled this Hearing, from what the Appellant thought he was paying for and the actual scheme as approved by By-law 769/75.

What then is the engineer’s obligation to provide the owners with a scheme of their choosing?

Mr. A. Graham, an experienced drainage engineer from Southeastern Ontario testified for the Appellant that in his view the owners to be assessed were entitled to a drainage system satisfactory to them. I cannot agree. Many landowners have been unsuccessful in this Court because they did not agree with the scheme proposed by the engineer whether it be under Sections 36, 44, or for various reasons under the negligence sections. Drainage schemes have been the subject of unhappy litigants for decades and many assessed owners have been obliged to accept municipal drains on their property against their wishes. It is very easy to visualize a conflict for an engineer in attempting to design a scheme pleasing to all the assessed owners in accordance with the requirements imposed on him by the statute. The engineer is the only person who, in the final analysis, must be free to do what he considers necessary following these requirements. Under the guise of negligence, the Appellant would have it appear that the "firm" had breached its statutory duty by not following these wishes or demands whatever interpretation one may put on that petition. In my view this is not a statutory breach of duty and consequently no negligence can be attributed to the "firm". Simply put, an engineer is not limited or obliged to follow the dictates of a petition (see Charboneau v. Lobo, 1901, O.L.R. at 156), even as in this instance the petition was required to do the work under By-law 769/75. One must not forget, that the work now authorized under By-law 769/75 is an act authorized by statute and is now law.

The Appellant alleges in his Statement of Claim that the original design by the "firm" was deficient by engineering standards. The engineering evidence called by the Appellant took the position that at various stations on the Main Drain, Branch I and Branch III the tiles installed were undersized. I do not see the necessity for setting out the various tile sizes as recommended by the engineers who gave that evidence. In arriving at the tile sizes to be used for subsurface drainage, Mr. Graham testified that three pieces of information were required:

(a) acreage to be tile drained;

(b) slope of drain; and,

(c) run off or drain co-efficient.

In the determination of the tile sizes, the Ontario Ministry of Agriculture and Food Publication #29, sets out recommended guidelines to be followed. This information is used in conjunction with the graphs provided in Publication #29 which provide the designer with appropriate tile sizes. These three pieces of information are subject to the engineer’s interpretation and judgment and are then placed upon the graphs provided by that Publication. For example, Publication #29 recommends that where open inlets are installed the drainage co-efficient is one inch run off every twenty-four hours per acre. From the information available to him regarding the principles applied by the "engineer" in his report, the sizes calculated by Mr. Graham were substantially larger. He stated therefore, that this was a major design deficiency and that smaller tile sizes as adopted in the report would decrease the capacity and increase the velocity of water resulting in "blowouts" in the tile and erosion of the surface. He applied the same drainage co-efficient and slope as used by the "engineer" in his report. In his assessment of the tile sizes, it appears Mr. Graham had erroneously assumed the whole of the watershed shown in the "engineer’s" report south of County Road 24, approximately 320 acres as the contributing area to be tile drained, was the same acreage as used in calculating the tile sizes in the report by the "firm". It was his opinion that the whole of the watershed should be used as dictated by Publication #29, or as it was formerly known, the A.S.A.E. Manual, which states:

"When surface water is admitted directly to the tile line through surface inlets, the entire watershed draining the surface inlet should be used as the contributing area. An exception of this area is where only a small amount of run off will flow away in a confined channel.

Mr. H. Todgham, one of the leading drainage engineers practising in Ontario today, who has prepared in excess of 1500 reports under the provisions of the Drainage Act, has been giving evidence in various courts in Ontario for over 30 years, testified on behalf of the "firm"; Mr. Graham had stated earlier that as a student he had acquired most of his knowledge of drain design from that gentleman. Mr. Todgham, in calculating the tile sizes had he been required to prepare a report for this scheme, designed detailed maps and charts of each sub-basin. He had levels taken of certain lands south of County Road 24. He said (see transcript - Book 4, page 38)

"I asked Mr. McNeely to arrange to have some levels taken along a couple of the lot lines so that I could see exactly what happened to the land surface, and he provided me with those levels and then I plotted those up on another drawing that’s underneath and I used this. This is basic to determining what the boundaries of those sub-areas are.

Mr. Todgham excluded portions of the watershed south of County Road 24, because of the rise in these lands and calculated that the contributing area to be tile drained was 195 acres. The "engineer" had testified that his approach was based on the exception in Publication #29 and notwithstanding the loss of his design file, he was of the opinion that part of the upper watershed could outlet to surface water at several places. No swale was to be constructed along Branch III and I accept Mr. Todgham’s reasons as well, why this same water would outlet into the swale constructed on Branch I and thereby reducing the contributing area within the exception of Publication #29. Mr. Graham however, appears not to have had any other information available to him in respect of the levels and stated he did not consider the "engineer’s" approach. Mr. Todgham further stated that in his opinion, and based on his calculations, the tile sizes prepared by the "firm`s" report as adopted by By-law 769/75 were identical to his, except in one instance where Mr. Todgham said he would have used a smaller size than the "firm" had employed. He did not agree with Mr. Graham’s view that there would be an increase in surface velocity should the tile sizes adopted by the By-law be installed because of the size of the watershed. Mr. Graham took no calculations of the increase in velocity of surface flow. Mr. Todgham was of the opinion that smaller tile sizes in the report and those changes made during construction would have no significant effect. Professor Peter Chisholm, of the University of Guelph, who has never prepared a report under the provisions of the Drainage Act, qualifies himself in the field of Hydrology and testified on behalf of the Appellant. Both Professor Chisholm and Mr. Graham were of the same opinion that there would be substantial erosion. Had Mr. Graham taken levels and relied on that information in calculating the acreage to be tile drained, he might well have concluded that his contributing area could have been closer to that of Mr. McNeely’s. I accept the evidence of Mr. Todgham that the tile sizes as installed were sufficient. It is to be noted that Mr. Todgham saw no reason to change the slope used by the "engineer". He did however, use a different drainage co-efficient than either Mr. Graham or Mr. McNeely, having concluded from his own study that there was no need for open inlets, because he found no low holes within the fields of the watershed, and therefore was of the opinion that one-half inch in twenty-four hours run off without open inlets was acceptable as directed by Publication #29 and the A.S.A.E. Manual. I also prefer Mr. Todgham’s evidence that his scheme should be similar for farmers using blind inlets who wish to tie into the system. There is no question that competent engineers do depart from suggested guidelines because of their own experience, judgment and discretion. Mr. Todgham went even farther with his opinion than either Mr. McNeely or Mr. Graham and stated that even though open inlets were not necessary in his view, he would still install them for the sole purpose of using the extra capacity available in the tile to eliminate some surface flow during low run off periods. On the balance of probabilities, I accept Mr. Todgham’s evidence for the reasons he gave. In my view the engineering principles outlined in Publication #29 were adequately considered by the "firm". I would expect Mr. Todgham and Mr. Graham’s skills to exceed that of Mr. McNeely’s, but the latter fell within a level acceptable to this court. See Dominion Chain Co. Ltd. vs. Eastern Construction Co. Ltd. et al 1974 CanLII 648 (ON HCJ), 1974, 3 O.R. 481.

I find as a fact that the tile sizes in the report (and this includes those changes on the Main Drain and Branch I made during construction), were adequate and accordingly there was no deficiency in the "firm’s" design. It is unfortunate that the calculations made by Mr. McNeely in preparing his report were lost in a fire prior to these proceedings being initiated, but he testified that by his calculations the area drained by the tile was approximately 145 acres and I have no reason not to accept this. There is no doubt that Mr. Graham’s tile sizes were more than sufficient but based on Mr. Todgham’s calculations and those in the "firm’s" report were larger and more expensive than were required.

In assessing the size of the swale, Mr. Todgham again considered all available information such as the plans, profile, specification, previous by-laws and soils map in the report. He was of the opinion that the "firm’s" two foot bottom was appropriate as was the 10:1 slope. Using the accepted engineering principle of a maximum two year storm projected by the Ministry of Transportation and Communication, he stated it was impossible to calculate the total flow because of such things as topography, soil, slope and weather conditions. Notwithstanding, Mr. Todgham calculated the total flow to be 96 cfs. He found that the average depth of the swale of 1.8’ the anticipated velocity through it would be 2.8 ft/s within the acceptable guidelines. The "firm" calculated the total flow to be 103 cfs. It calculated the same velocity of 2.8 ft/s through the swale as did Mr. Todgham. Mr. Todgham selected the same roughness co-efficient for the Manning Formula as .04 similar to the "firm’s" choice, which he expressed was reasonably based on his judgment and experience in dealing with the Construction and Drainage Guidelines published by the Ministry of Agriculture and Food in arriving at the velocity through the swale. Mr. Todgham further expressed the opinion that the roughness co-efficient selected by Professor Chisholm was too low affecting his conclusions of velocity and I find on the balance of expert probabilities I prefer the opinion of Mr. Todgham that the capacity of the swale was adequate and reject the evidence of Professor Chisholm. In my view the "firm" adequately considered all guidelines on this issue. Professor Chisholm testified that the velocity of water in the proposed swale was too great for the soil to withstand the sheering forces. The "engineer" stated he did not consider this and Mr. Todgham says he seldom does. It was Professor Chisholm’s opinion as a result of the unlined swale it would cause substantial erosion and should never have been designed. There is no explanation as to why Mr. Graham and Professor Chisholm did no calculations as to the total flow. I have given my reasons why I prefer the evidence of Mr. Todgham. In my view this issue should have been raised under Section 36 prior to the provisional by-law adopting the report. The purpose of Section 36 is clearly set out in Judge Clunis, Drainage Referee’s judgment - Chesapeake and Ohio Railway Limited vs. Sombra 1967 (supra).

Both Professor Chisholm and Mr. Graham stated there were further design deficiencies in the "firm’s" report, in particular the absence of numbers of cross sections which would create problems in construction as there was no way of knowing the exact width of the swale. Mr. Todgham, on the other hand, considered this information unnecessary and unduly expensive and saw no difficulty in installing the swale as designed. I accept Mr. Todgham’s view and reject that of Messrs. Chisholm and Graham on this score. Mr. Graham pointed out the lack of four relief wells that existed on the site but were absent from the design in the report and suggests this was a further deficiency. I do not consider this to warrant a finding of negligence in the design.

I am further satisfied that the reducing of the slope during construction of the tile line in the lower end of the main drain of approximately 1,000 feet from .5% to .4% was not a significant reduction of capacity. Mr. Todgham found that it was some 10 to 12% reduction. It appears Professor Chisholm’s calculations had reduced the slope too much as he did not have the correct information and acknowledges that he had made a mathematical error.

All engineers who testified, with the exception of Mr. Slater, were of the opinion that there were three alternate designs to move the waters to the outlet at the Rigaud River. They were:

(1) swale;

(2) tile/swale combination; and

(3) tile only.

The report enacted by the By-law did not require a lined swale. Mr. Graham and Professor Chisholm were of the view that the watershed was too great for an unlined swale, and would cause substantial erosion. Mr. Todgham stated that he had designed a 55,000 acre municipal drain through an open ditch. In his view this unlined swale would result in only a small amount of erosion based on his calculations.

The time to have this scheme modified, changed or corrected was again under Section 36 as I have repeatedly stated. The Appellant did not wish the tile swale combination and he was questioning the judgment of the engineer which appears to fall under the principle enunciated in Chesapeake and Ohio Railway Company Limited vs Sombra 1967, Judge Clunis, Drainage Referee, states:

"There is a right too, to review the engineer’s judgment to the extent that the referee shall be satisfied that the work as proposed can accomplish the intended purpose at reasonable cost having regard to all the circumstances. In this latter review it is open to a referee to hear evidence tending to show the advantages of alternatives or to modifications of the scheme of the work as proposed in the report.

As to the neglect or failure on the part of the "firm" to provide some form of protection against future erosion in the report, it is my view the principles were enunciated in the decision of Joseph Murray vs. The Corporation of the Township of South Gower February, 1972. This was a claim for damages arising out of the construction of a municipal drain. One of the claims was for damages caused by erosion. Judge Clunis, Drainage Referee, on the subject of erosion stated:

"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 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 principle. It is possible to design a drain many different ways. Each design must 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 judgment, 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."

The repair and maintenance sections of the Act cast a duty on the municipality after receiving appropriate notice that the intended function of a scheme is assured. No one can predict when repairs or maintenance will be required. Any suggestion that there was a design deficiency by not providing appropriate protection against erosion in the report must fail.

I shall turn to the issue of the completion of the swale in accordance with the By-law. Both Mr. Graham and Professor Chisholm stated that it appeared that part of the swale had been constructed, and portions of the R.F McLennan Drain had been filled in, in accordance with the report. The contractor’s supervisor, Mr. Bergeron, testifying for the Appellant, stated that only part of the swale in the Lower Main Drain had actually been completed but had been subsequently backfilled. Mr. Ault, supervisor for the "firm" during construction, testified on behalf of the "firm" that the swale had not been constructed in accordance with the original plan except the upstream end of Branch I. The "engineer" who designed the swale stated that part of it had been backfilled and part was still in place. He estimated that only about 25% of the swale had been constructed. He stated during cross examination that in his opinion:

(see transcript - Book 4, page 158)

"the swales were not constructed".

I find as a fact that the swale was not completed in accordance with the plans and specifications outlined in the report.

Mr. Todgham was of the opinion that the damage caused by erosion was mainly due to the lack of a proper channel to permit the water to be carried away and as a result it "meanders". He stated that if the swale had been constructed according to the report, the water would not pond in the lower fields. Although it was almost 3 years since he had last seen the property, Mr. Todgham saw no substantial change from recent photographs. He was of the opinion that (see transcript - Book 4, page 75)

"Whereas if there were a swale along the route the lower places would be interconnected by the channel and so there wouldn’t be water left lying on the ground".

In order to rectify this difficulty, it was his opinion that none of the tiles installed according to the report or increased in size approved subsequently by resolution at two stations, were not to be removed. As well, it was his expert opinion that the swale should be constructed as it was designed to do to take the surface water down through the Appellant’s property to the outlet. He stated further, the culvert size at the entrance to the Appellant’s property should be replaced with the 36” pipe approved by Resolution as recommended on the "firm’s" letter to the Township of Lochiel dated August 12, 1975.

Mr. McNeely in his correspondence to the Township almost a year after the contractors left the job, stated in his letter of August 18th, 1976, that:

"I am still of the opinion that these problems can be corrected through the construction of the drainage swale along this covered drain as shown in the report. No improvement in the area of the covered drain will occur until the swale is completed. The contractor attempted to construct this drainage swale however the owner prevented him from completing it."

There is no evidence of damage to the Appellant’s farmland by excessive erosion before the By-law was passed. Consequently, any subsequent damage alleged by the Appellant must have resulted from the absence of the swale.

I conclude from the evidence that the actual loss of soil and crops, if any, to the Appellant’s land was caused by the filling in of the R.F. McLennan Municipal Drain in accordance with the requirements in the report, together with the absence of the swale.

Who then is responsible for the non-completion of the swale?

From the day Mr. Slater, drafted the petition for the assessed owners, to the last answer given by Mr. MacSweyn on cross examination, there is no doubt that the Appellant did not want the swale and made his wants known from the outset. The only time it appears he did object was during construction and not at the appropriate meeting of May 13th, 1975 when Council adopted the report by provisional by-law. I can only assume because the Appellant never availed himself of his rights under Section 36 or Section 44, that he changed his mind during construction and by that time it was all too late.

Once construction began it became more evident that Mr. MacSweyn was determined to have his own way. Mr. Bergeron, the contractor’s foreman stated in chief that during the installation of the tiles upstream from the outlet, the Appellant had informed him that unless the tile sizes were enlarged there would be no more construction.

(Transcript - Book 2, page 80)

"Q. And at the site, did you see any of the MacSweyns?

A. Yes, I was talking to Ralph.

Q. Is that when he explained to you that he wanted the change?

A. Yes.

Q. Now, do you recall the words he used in indicating to you -- I realize it’s

sometime ago -- but --

A. Well, it came to the effect that he didn’t want anymore work taking place

on -- on the job until it was settled and he was going to get the bigger size.

Apparently he had the contractor install a smaller culvert at his entrance without the "engineer’s" consent. Although this was a statutory breach of duty as the required culvert size was not put in place, I conclude it was not the cause of the damage.

Mr. Bergeron also indicated, that Mr. MacSweyn had further demanded, rather that requested, that the swale be filled in. (See transcript, Book 2, page 93). On cross examination by Mr. Carr-Harris he stated:

"Q. And, Mr. Bergeron, when these changes were made --- were requested by Mr. MacSweyn and you’ve mentioned the tile changes, the culvert changes and the fillings of the swale, would you categorize --- characterize those requests as suggestions or were they demands by Mr. MacSweyn?

A. No, they --- they wanted them changed.

Q. They were adamant about it, were they?

A. What do you mean by that?

Q. Well, I mean they were definite about it. They weren’t --

A. Yes.

Q. --- they weren’t saying if you guys think it’s all right, this is what we want. They were saying, this is what I want. Is that ---

A. Well, they wanted those changes made."

It appears clear to me that Mr. Bergeron had filled in the swale on the Appellant’s orders, because as he stated he wished to satisfy his customer.

The evidence of Mr. Ault with respect to the tile changes demanded by Mr. MacSweyn, appears in places consistent with that of Mr. Bergeron. Mr. Ault stated that Mr. MacSweyn was very upset and used abusive language. He testified that a short section of the swale in the upstream end of Branch I around Stations 20 + 27 and a portion of the upstream end of the Main Drain had been constructed according to the Plan. He stated that upon his return one morning Mr. Bergeron had informed him that the Appellant had stopped the operators from working on the swale and refused to have it constructed. He further stated that the following morning the Appellant had again caused the work to be shut down. There is no question that Mr. MacSweyn was attempting to instruct Mr. Bergeron, with some success, to make the changes on the site. Encouraged possibly, by his earlier successes in obtaining the tile and culvert sizes to suit himself, it now appears he was pushing for further changes and in doing so he was obviously bullying Mr. Ault. I observed Mr. Ault to be a very gentle man, whose voice was scarcely audible in the court room and who was asked several times to speak louder. Mr. Ault paid the courtesy to the Appellant of instructing the contractor to level some of the land in order to avoid ponding in an area where the Appellant demanded the swale be filled in. Mr. Ault stated that when he was informed that the Appellant wanted the swale filled in, he called the "engineer" and was instructed to leave the job and that the "engineer" would advise the Township the job was not completed. Mr. Ault has not returned to the property since and was instructed not to by the Appellant. Upon his leaving the job, construction of the swale was discontinued because constant interference by the Appellant had rendered it intolerable. As Mr. Ault put it, there was no progress being made in the construction of the swale anyway in accordance with the original plan. It is obvious that the Appellant’s conduct provoked the abandonment of the work and he has only himself to blame. The Appellant must have been aware that after the backfilling of the R.F. McLennan Drain together with the preventing of the construction of the swale must result in the flooding to his lands and crops of which he now complains. The Appellant has owned the lands for a number of years and was familiar with that large body of water and the results it would have if not properly controlled.

I believe the words of Judge Clunis, Drainage Referee, in the case of Grudziel vs the Corporation of the Township of Burford, et al, January 13, 1972, admirably suit the conduct and behaviour exhibited by this Appellant. He stated:

"It seems to me that the effect of the plaintiffs application seeking the assistance of the Court is to attempt to enjoin the Council from carrying out its statutory duties under the Act which requires the Council to keep this drain in good repair. The plaintiff’s motive is based upon the possibility that the carrying out of that duty may result in the restoration of the drain to its original condition. I have come to the conclusion that the actions and proceedings of the Council do nothing to assist the plaintiffs’ contention or to alter the fact that what the plaintiffs did was wrong and without justification."

The Notice of Motion of August 1, 1980 asks, inter lia, that the construction be carried out in compliance with the By-law. This was merely an afterthought. He asked for the work to be completed in accordance with the By-law only after Mr. Justice Craig’s Order staying the action. Having been advised by His Lordship that there would be no award for damages to allow him to complete the drain as he requested in the Petition, the Appellant was still hopeful of gaining further relief from the Notice of Motion for an Order to redesign the scheme without the swale. In effect, what the Appellant is seeking is an Order to quash the By-law which has been confirmed by virtue of Section 44 of the Act. In any event, I have no jurisdiction under the Act to amend the By-law at this stage in the proceedings, see John Byrne vs. the Township of North Dorchester 2 C & S at 318. As well, to give him this relief would have the same effect as setting aside the report under Section 36 and that appeal period has long since prescribed. In any event, I would also have required at the appropriate time the "engineer’s" consent to amend his report adopted by the provisional by-law. The Appellant persisted in his testimony that he did not want the swale at all and the final question of his cross examination reiterated his attitude throughout. (see transcript - Book 1, page 10)

"Q. Mr. MacSweyn, as a result of the Action, forgetting now about damages, what do you want done in terms of that drain?

A. A big covered drain for all the water to run underground."

Whatever damage the Appellant has suffered, there is no evidence that he made any attempt to mitigate the loss. He failed to take any steps himself to protect his lands once the decision had been made for the contractor to leave the job. Council apparently attended at the request of the Appellant at his land sometime in 1976. The Township subsequently wrote to Mr. MacSweyn on April 15th, 1977 advising him there was nothing more it could do to assist him. Mr. McNaughton stated that that letter was sent to Mr. MacSweyn because he made his continuous demands known that he did not wish the swale. There is evidence that in 1979 Mr. MacSweyn ran private tiles into the tiles below the Main Drain and "blowouts" occurred as a result. In an attempt to solve that problem and obviously to further assist the Appellant with the damage arising as a result of the abandonment of the work in the summer of 1975, Council sent Mr. L.P. Stidwell, the engineer who had prepared the report for By-law 508/61 to attend at the Appellant’s property. Mr. McNaughton testified that Mr. Stidwell was prevented from entering the property by the Appellant. I find as a fact that Mr. MacSweyn was the author of this own injury and has therefore disentitled himself to the damages claimed. In Peltier vs Twsp. of E. Dover (1897) I C & S 323, a decision of the High Court of Justice. From a brief summary of the facts it appeared that the flooding complained of had been caused by water backing up from the township drain through box drains which had been built by the plaintiff and thence onto his land. He had stood by and allowed the box drains to conduct the water to his property, although he might have easily blocked them up and averted the flooding complained of. Upon these facts, Referee Hodgins said:

"I must therefore find that by his own act and therefore with his own consent the water from the township drain flowed in upon his land and caused the damage of which he now complains."

Accordingly, I now rule the Appellant’s claim for damages is dismissed.

I discussed earlier the question of the remedy of mandamus having prescribed by virtue of Section 74(2). There is of course, no time limit prescribed in which the Township must complete the work under the By-law, but I must consider that the work should be completed within a reasonable time in accordance with the plans and specifications in the engineer’s report as adopted by the By-law. The cases appear to me to be consistent, in that the paramount obligation of the township is to complete the works of the scheme generally in accordance with its own by-law. See the decision of the Supreme Court of Canada in The Township of Sombra vs. The Corporation of the Township of Chatham, 1892 S.C.R. Vol. XXI, 305 at 314. Gwynne J. - also see Judge Clunis, Drainage Referee, February 1, 1971, Murray Gardner vs. The Corporation of the Township of Zone.

The solicitor for the "firm" argued that the maximum "he who comes to equity must come with clean hands" requires that the record of the Appellant who is seeking the equitable relief of mandamus must establish that his conduct in this matter is of it-self clean, otherwise the remedy of mandamus is not to be granted. I am in agreement with Mr. Justice Schroeder had stated in the City of Toronto vs. Polai, 1970/O.R. at 493:

"These cases present instances of the Court’s refusal to grant relief to the Plaintiff because of his wrongful conduct in the very matter which was the subject of the suit in equity."

I would agree with that view, that the Appellant should not be given the remedy claimed because of his conduct during construction. On the other hand, Mr. Justice Schroeder in his reasons said earlier on page 491:

"In my opinion the city, acting in a more restricted sphere in the enforcement of its own by-laws, is likewise in a different position from the ordinary litigant. The inhabitants of the municipality are sufficiently interested in the dispute to warrant intervention by the corporation for the purpose of asserting public rights, and the dispute is not one between individuals. Rather it is one between the public and a small section of the public refusing to comply with the by-law. In suits in which the Court’s equitable jurisdiction is invoked and the clean hands doctrine is pleaded regard must be had to the nature of the relief sought and the character in which the plaintiff is suing."

In the City if Toronto vs. Polai decision it was pointed out that there was a discretion as to the enforcement in carrying out the provisions of the By-law. On drainage matters under the Act, Council must see to it that the work is completed. There is no discretion left to Council to decide whether or not the work should be completed, or the manner in which it should be completed.

As to the prescriptive period of two years as I discussed earlier, having prescribed so to refuse the Appellants relief in par. (e), (f), of the Notice of Motion, the Court of Appeal was called upon in Thackery vs. Township 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):

"A 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."

See also Wigle vs. Township of N. & S. Gosfield 1904 7 O.L.R. 302.

On further reflection, it is my opinion that the remedy of mandamus prescribes two years following the completion of the drain which, I have already found was not done. If the remedy of mandamus were not available, it would be impossible for an owner to require the Township to complete the work if it elected not to finish it. Others have an interest in seeing the drainage scheme properly implemented and it is the Township who must speak for them.

A mandatory injunction will therefore issue requiring the Township of Lochiel to complete the drain and in particular the swale to the depth and width provided in the report and the replacing of a 36” culvert at the Appellant’s entrance. No other work on the tiles is required. I reserve leave to both parties to speak to me if there be any delay in completing the work.

On the question of costs, the Township of Lochiel let the contract to proceed with the construction before the By-law received its third reading contrary to the Act. The By-law did not receive a final reading until March 30, 1976, some nine months after the "engineer" advised the Township he considered the work completed. Consequently the Township denied any interested persons the opportunity of appealing under Section 44. Although no one appears to have been prejudiced, because of that neglect, it may well be that the Township was technically trespassing during construction.

The firm of Lecompte, Moller & Associates Limited failed to adequately advise the Township that the project was not completed and that this would have resulted in damage to the Appellant’s lands. The "firm’s" letter of October 14th, 1975 advised the Township that in his opinion he considered the works closed and the failure to complete may result in damage to the Appellant’s lands as the swale was designed to carry 90% of the watershed to the outlet. On November 27th, 1975 the "firm" sent to the Township its final progress payment certificates. Mr. McNaughton testified that Council considered this as advise that the work was completed. The "engineer" testified he was aware the Appellant might suffer damage and in his advise to the Township should have pressed it to take more active steps for completion. Even the letter by the "firm" of August 18th, 1976 to the Township advised them what steps were required to remedy the problem, yet in the same letter advised them that the project was completed. Though the damage was caused by the Appellant’s conduct, had the "firm" properly advised the Township, then it is my view the choice of what legal steps were to be taken to ensure completion would be left to Council to determine. There is nothing in the Act which authorizes the engineer to take legal action to complete the work because of the interference of third parties. It must be left to the Township to enforce their own By-law and without having been properly advised by the "firm" in my opinion, they had no way of knowing that they must seek legal advise.

The costs incurred by McNeely Engineering Limited and Lecompte, Moller & Associates Limited are similar as both these Respondents were represented by the same counsel.

Accordingly, each party shall be responsible for its own costs including those in Supreme Court Action No. 15719/77.

Dated at Newmarket, Ontario this 18th day of May, 1983.

William D. Turville Drainage Referee