ODR 1991

The applicants sought damages and other relief after the respondent municipality installed a supplementary plastic drain across their property, which worsened drainage and caused their basement to flood.

The Drainage Referee found that the municipality erred by not appointing an engineer under s. 78 of the Drainage Act, as the work constituted an improvement rather than a repair.

The bylaw authorizing the work was quashed, and the municipality was ordered to refund payments, appoint an engineer, and pay $1,958.31 in damages for the flooded basement.

The Respondent municipality brought a motion to estop the Applicant from claiming damages regarding a municipal drain, relying on a 1985 settlement and release.

The Applicant brought a cross-motion for an order directing the Respondent to obtain an Engineer's report for the drain's repair and maintenance.

The Drainage Referee held that the Applicant was estopped from claiming further damages due to the clear terms of the 1985 release.

However, finding that the drain was improperly constructed and malfunctioning, the Referee ordered the Respondent to appoint an Engineer to prepare a preliminary report under s. 78(1) of the Drainage Act.

The Respondent was also ordered to pay admitted damages of $1,400 for crop and property loss, while the Applicant was ordered to pay tax arrears.

The appellant appealed an engineer's report proposing improvements to a municipal drain, arguing that replacing a grassed waterway with an additional tile drain would reduce capacity and cause soil erosion on his property.

The respondent municipality challenged the appellant's status to appeal, which the Referee dismissed, finding the potential for erosion sufficient to grant standing.

On the merits, the Referee held that the drain was no longer a natural watercourse, rendering section 14(1) of the Drainage Act inapplicable.

The Referee accepted the engineer's conclusion that the proposed changes constituted an improvement and dismissed the appeal, awarding costs to the respondent.