Kilberg v. Wallace (Township), 1988 ONDR 1

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Kilberg v. Wallace (Township)

1988 ONDR 1

DATE OF DECISION:

1988-03-17

1988-01

STATUTE:

Drainage Act

HEARING:

BETWEEN:

DAVID KILBERG ET AL

APPLICANTS

-AND-

THE CORPORATION OF THE TOWNSHIP OF WALLACE

RESPONDENT

REASONS FOR JUDGEMENT

This application was heard on April 27 and 28, 1987, at the Court House, Stratford, Ontario pursuant to Sec. 47(1) of the Drainage Act, R.S.O. 1980, c. 126, to set aside the engineering report dated September 5, 1985, known as the "Mayberry Drain 1985". The grounds of appeal are that the engineers' report did not comply with the requirements of the Drainage Act, R.S.O. 1980, c. 126. More particularly, the engineers who had prepared it, Messrs. John Kuntze and K.A. Smart of K. Smart Associates Limited, had no authority to create the scheme they proposed under Sec. 78. It was the Appellants' view for the most part that the Respondent ought to have proceeded under Sec. 4 as a petition drain for a new municipal scheme.

The original engineers' report that first created The Mayberry Drain 1952, was prepared by Colonel S.W. Archibald, consulting engineer, dated May 6, 1952, had been adopted by By-Law 753 on the 2nd day of February, 1952 by the Township of Wallace. It had a main drain of approximately 3000 feet with three branch drains, in all about 5300 feet in this township. It originated in the abutting Town of Listowel and consisted there of a short main drain and three branches, totalling 625 feet, making the whole of the Mayberry Drain about 5900 feet in length. The estimated cost at that time was $4,600.00.

Mr. Kee for the Appellants:

Schedule for future maintenance is not authorized under Sec. 78 but is as well contrary to Sec. 76; the engineer failed to define the area requiring drainage in his report; no authority to extend upstream under Sec. 78; no authority to abandon existing municipal scheme under authority of Sec. 78, but must first obtain a request under Sec. 84; the report clearly stated it was to be a new drainage work not authorized under Sec. 78; can't abandon and improve existing drain scheme at the same time; Sec. 19 applies to a petition drain only; no authority to assess for previous costs etc. in the new report for an existing municipal drain.

Miss K.L. Evans for the Respondent:

Work authorized under Sec. 78 is an improvement and repair of an existing drainage works authorized within its own boundaries and outside it own boundaries; no Sec. 4 petition required to complete drainage works; improvement to an existing drainage works is authorized for a similar watershed and not the physical drain itself; the report proposed is for the better use of the existing Mayberry Drain; Sec.78 authorizes the Moore property to be included in this drainage works; no limit on capacity or extent of improvement authorized by Sec. 78; Sec. 59 has no application to Sec. 78 otherwise a majority of landowners not affected by a necessary improvement could prevent the work being completed; same watershed today 35 years later requires greater capacity; assessment schedules for repair and maintenance are correct and if no authority, Referee has authority to refer back to engineer.

It is necessary to review briefly the recent changes in the legislation to assist in ascertaining the present intention of Sec. 47(1) under which this appeal was authorized.

There have been landmark changes in the present drainage legislation from its predecessors, the last enactment being The Drainage Act, R.S.O. 1970 c. 136 as amended by 1972 Chapter 1, s.7. Appeals to question the authority of an engineer's compliance with the legislation in preparing a report were formerly authorized under Sec. 36 of that statute.

Sec. 36 Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the ground that it does not comply with the requirements of this Act, or that the benefits to be derived from the drainage works are not commensurate with the estimated cost there-of, or that the drainage works should by modified, on grounds to be stated, may appeal therefrom to the referee,.....such order as appears just.

Under the present legislation the grounds of appeal to the Referee have now been curtailed. Jurisdiction to hear appeals from the engineer's report presently fall within two sections of the Drainage Act, R.S.O. 1980 c. 126. This legislation with its major revisions was originally enacted in 1976 and it created for the first time The Ontario Drainage Tribunal which now hears certain grounds of appeal formerly before the Referee.

Sec. 47(1) Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee....46(2), as the case may be.

Sec. 48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal.....subsection 46(2), as the case may be. 1975, c. 79, s. 48(1); 1980, c.1, s.9.

It appears that the interpretation of Sec. 36 of The Drainage Act, R.S.O. 1970 c. 136, was best defined in the language of Referee Clunis in The Chesapeake and Ohio Railway Company v. The Corporation of the Township of Sombra, December 1967 (unreported) at page 5 -

"In general it seems to me that an appeal of this kind is limited to a consideration of the form of the report and an inquiry as to whether or not the engineer has carried out the mandatory requirements which the Act requires in preparation of the report and whether the report deals with the matters which are essential to an understanding of need for the work, what work is proposed and how its cost is to be borne. The economic feasibility of a proposed work is of course open to examination at this stage. 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 to or modifications of the scheme of the work as proposed in the report."

As the present Sec. 47 and 48 stand, I am of the view that the current legislation intended the Referee to no longer consider the "economic necessity" or even to review the merits of the report under Sec. 47(1). The question to be decided is simply whether the plain language of Sec. 78 authorizes the works contemplated in The Mayberry Drain 1985 report were in fact improvements to the original scheme of 1952. If they were not, the Respondent must proceed by way of a petition under Sec. 4 of the statute should this work be completed.

There was a great deal of evidence given by several engineers for both parties regarding the differences in the engineering standards applied by Colonel Archibald in 1952, and what they would be today. I found little assistance in the engineering evidence as to the different views expressed, that the report did or did not comply with Sec. 78, save as to Mr. Todgham's evidence on the Moore property. The facts presented and the evidence of the engineers did little in assisting me to draw any inferences that the scheme proposed in the 1985 report was authorized under Sec. 78 of the Act. The quality of this report prepared by the engineers is not in question, only its authority to do so under Sec. 78. There were five alternative proposals in the preliminary report dated November 15, 1983. The engineers' final report suggested some of the landowners had approved one of the five proposals.

It appears from the evidence there was little dispute that the course of the now Mayberry Drain 1985 followed generally that of the original one constructed under Colonel Archibald's report in 1952. It is as well quite evident from the exhibits filed that the drainage area in the 1985 report was similar to that drainage area in 1952, 125 acres to about 120 acres. Also, the changes in lands assessed were very minimal, approximately 3-4%. The evidence of the engineers established clearly that the old drain was out of repair and is presently in need of repair and improvement, and I so find. It was as well, established by the evidence that the change in land use from rural to urban in certain areas to commercial, caused a greater volume of water and requires a larger capacity to handle it.

The third proposal in the preliminary report was provisionally adopted by By-Law No. 34-85 on the 2nd day of December, 1985. It is highly unlikely that different engineering firms would design the identical scheme. In the final results, costs and design would be different. No one can ever expect perfect drainage. Mr. Smart, a drainage engineer of some 13 years experience pointed out the differences in his 1985 report and the original design by Colonel Archibald. I would not have expected there to be a great similarity in view of the advanced engineering in the last 35 years. Mr. Clark, an engineer, who testified for the Appellants, was of the opinion that the 1985 report was an overdesign. Just because different criteria was used in 1952 is no reason to set it aside as he implied unless of course the 1985 design was not authorized by Sec. 78. Normally the principle enunciated by the Chancellor in Stephens v. Moore, 25 O.R. 605 would prevail.

"In matters of drainage and other business of local concern, 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, the meaning of which is always a large outlay for costs, unless there has been a manifest and indisputable excess of jurisdiction, or and undoubted disregard of personal rights."

Mr. Herbert Todgham a drainage engineer for over 40 years whose reputation is well known and respected, was of the opinion that the system designed in the 1985 report was basically a new drain precipitated by the many changes in present day conditions and that it was no longer an agricultural drain, but was in essence, a storm sewer system having an increased capacity of some 15 times the original concept constructed in 1952.

I must say that all decided precedents of case law submitted by the Respondent`s solicitors in support of the proposition that the engineer is authorized under Sec. 78 to relocate a drain, dealt with only a part of an existing municipal scheme. No precedent appears to exist nor were any submissions made of previously decided cases that authorized under Sec. 78 or its predecessors, a totally new drainage course for basically the same watershed.

It is clear from the language and the five alternative proposals drafted by the authors of the 1985 report that a new drainage works was intended to replace the existing Mayberry Drain and in essence there was to be no physical use made of the 1952 scheme. Mr. Smart without personal inspection of two branches, appears to have relied on the word of the owners that one branch was out of repair and another could not be found. In fact, the original Mayberry Drain was no longer to be the responsibility of the municipalities to maintain and was to be abandoned.

Excerpts from the Mayberry Drain, 1985 report;

Page 11 Summary Recommendations

"It is therefore, our recommendation that a new drainage works to replace the existing Mayberry Drain be constructed and that it consist of a main drain and one branch drain. The main drain will consist of an open...."

Page 18 "The existing Mayberry Drain including all branches shall be considered abandoned for future maintenance purposes. It shall revert to the status of a private drain and be maintained at the discretion of each owner on whose property it exists."

In fact every proposal in the preliminary report began with the words "...install a new drain...". In my view the engineers intended their design to be a new drainage works without any use of the existing scheme. The Act defines improvement;

Sec. 1¹³ "improvement" means any modification of or addition to a drainage works intended to increase the effectiveness of the system.

I do not view the work described in the 1985 report as an improvement to an existing scheme but as a new work not authorized under Sec. 78. An improvement must be an improvement to an existing scheme and not as this report envisages. Neither do I see anything in the language of Sec. 78 that would permit an entirely new design to be constructed regardless of any similarity in the watersheds. Consequently, this new drainage work cannot be an improvement to the existing Mayberry Drain 1952 as contemplated by Sec. 78 (see Tilbury East vs. Romney (1895), 1 C.& S. 261). Accordingly, the engineer as well does not have the authority to abandon an existing scheme under Sec. 78 and at the same time take the position that this work was not new work, a prerequisite of Sec. 19. The engineer in charge of the preparation of a report could seek directions from this Court as to the extent of his authority.

Section 78 or its predecessors was never intended to authorize as initiating municipality to improve an existing municipal drain as designed in this report. The extent and ramifications are beyond that which the legislation could have intended when it was first implemented over 100 years ago. I do not subscribe to the view, that could otherwise prevail, that a municipality may do an improvement as proposed here and impose their will upon an unsuspecting public who is required to pay for it, without recourse. Many municipalities are guided by their engineers and it must not be seen that this section is self-serving. It is interesting to note that the first resolution of the Respondent dated September 10, 1981, was merely a request to vary the assessment under Sec. 76. Further, by resolution dated March 7, 1983, the Respondent had again instructed the engineer to prepare a preliminary report under Sec. 10 of the statute. Council appears to have proceeded under this section believing there to be a Sec. 4 petition or gave little thought to the matter. In any event, the engineer should assist Council with the knowledge he possesses, or as I indicated earlier, seek directions from the Referee (Sec. 106(4)).

To allow this report to stand as being authorized under Sec.78 could unleash a flood of new drainage works under the pretext of an improvement to an existing drain. An owner assessed for benefit in need of improvement could in the final result under Sec. 78, trigger a totally new design and course as an improvement to existing scheme, and all other owners assessed for benefit would have no recourse. This cannot be permitted.

In Tilbury East vs. Romney 1 C. & S. 261 at page 266, Referee Henderson said;

"If this drain upon the townline can within the meaning of the Act be called part of Number Four, then it seems to me the argument of Mr. Wilson is unanswerable, that given any municipal drain in any township, that drain can be used as a base of operation so that the most extensive work which can in any way be connected with it, may be done upon the report of an engineer, without the necessity of a petition."

There is one further issue to be resolved and that is the question of the extension of this drain from the one constructed in 1952. The lands to the north owned by Moore in the Township of Wallace are to be included in the drainage scheme in the 1985 report are now to be assessed for benefit for $1,200.00. Mr. Smart's design of a catchbasin with a long offset lead into part of Lot 24, Concession 2, Township of Wallace clearly shows that the part of the front half of the Moore property was to drain to the south. According to the evidence, it had always drained by gravity in the original scheme in that same direction. Mr. Todgham was of the opinion, to which I agree, that the added words from "...extend or alter the drainage works..." (The Drainage Act, R.S.O. 1970, c. 136, Sec 53) to its present language "....extend to an outlet or alter the drainage works..." (Drainage Act, R.S.O. 1980, c. 126, Sec. 78) was in essence a new drainage scheme and a Sec. 4 petition is required. Indeed, one need only look at the predecessors to the 1975 statute to conclude that the intention of the present legislation was for the engineers to extend a drain downstream only to an outlet. Simply put, you cannot extend an existing drainage scheme to an upstream outlet as was intended for the Moore property. The phrase "....extended to an outlet..." was added to Sec. 78, in my view, by the legislature to rectify any ambiguity in the language of its predecessors. It is not possible to improve an existing drainage works by extending it upstream. I might add that any extension upstream of any size is beyond the scope of Sec. 78 and I would have set aside any report for this oversight. Failure to do so on my part would open the door for future upstream construction, possibly of unlimited magnitude that is , in essence, a new drain for which a petition is required. As well, the Moore property had not been previously assessed for benefit under By-Law No. 753 and therefore does not now qualify under Sec. 78 as having been previously "...constructed under a by-law passed under this Act..." as required by that section of the legislation.

For the reasons given, the Respondent's failure to proceed by way of Sec. 4 of the statute necessitated by the engineers' report having been found to be an excess of jurisdiction resulting in an undoubted disregard of personal rights. (see Stephens v. Moore 25 O.R. 605)

I do not see the necessity of dealing with the other issues raised by the Appellants. I must add that it was suggested by the Respondent's solicitor that I amend the provisional by-law which adopted the final engineers' report dated September 5, 1985. This appeal, however is an application to set aside the engineers' report, not a provisional by-law. An application to quash the latter is premature (see City of Niagara Falls v. Township of Niagara, 1967 O.R. 96). The Referee has no authority to amend a report at this stage and any submissions to do so in my decision ought to have been completed during the course of this Hearing and not left for this Decision.

Accordingly, the appeal is allowed. The Appellants' engineers fees for attendance shall be set at Two Hundred and Fifty ($250.00) Dollars each (Sec. 107(1)). Further, the Appellants are entitled to their costs, in accordance with Section 73(1), 109, 110 on the scale set out in Tariff "A", Rule 58.06 of the Ontario Annual Practice.

Dated this 17th day of March, 1988.

Ontario Drainage Referee