ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Campbell v. Zorra (Township)
1991 ONDR 1
DATE OF DECISION:
1935-02-12
1991-01
STATUTE:
Drainage Act
HEARING:
1990-05-02
BETWEEN:
DONALD K. CAMPBELL APPELLANT,
- AND -
THE CORPORATION OF THE TOWNSHIP OF ZORRA RESPONDENT.
APPEARANCES:
DONALD K. CAMPBELL, THE APPELLANT IN PERSON
RONALD G. ROBERTSON, COUNSEL FOR THE RESPONDENT, THE CORPORATION OF THE TOWNSHIP OF ZORRA
REASONS FOR JUDGEMENT
This application came on for hearing before me on May 2nd and 3rd, 1990, in the City of Woodstock.
Mr. Campbell, who represented himself, and Mr. Robertson, Counsel for the Respondent, again attended before me on September 4th, 1990 in the City of Toronto to address an issue I raised regarding the extent of my jurisdiction and the question of costs.
This was an appeal to me under Section 47 of the Drainage Act on the grounds that the Report of the Engineer, K. Smart Associates Limited, did not comply with the requirements of the Drainage Act.
The parties agreed that the appeal was properly before me. Any procedural irregularities were waived by the parties.
As a preliminary matter, the Appellant requested an order amending his Statement of Claim by adding a paragraph to the Claim as follows:
“26. The Appellant relies on Sections 19, 57, and 84 of the Drainage Act.”
Mr. Robertson did not object to this amendment and I ordered that the claim be so amended.
Then Counsel for the Respondent brought a motion for an order that the Appellant did not have status to bring this appeal. The motion specified two grounds:
(a) that the Appellant was not an owner affected by the drainage works as he would not be assessed for any cost of the proposed work under the Smart Report; and
(b) That the Appellant would not be adversely affected by the proposed work.
While the Appellant would not be adversely affected by the proposed drainage works, he was an owner and coadventurer on the Van Manen Drain.
The Appellant indicated that he had a Drainage Engineer in attendance to testify that the destruction of a grass waterway portion of the drain would cause soil erosion which would deposit silt on his property or cause deterioration in water quality.
I would not find in every case that an owner who does not bear any cost of a drainage improvement is affected by the drainage works. However, in this case, I found the Appellant's concern with the effect soil erosion would have on his property was enough to establish his right to bring this appeal. I therefore denied the Respondent's motion that the Appellant did not have the right to bring this appeal and entertained the Appellant's appeal.
BACKGROUND AND HISTORY
The subject matter of this action is the Van Manen Municipal Drain. The Van Manen Drain is completely within the Township of Zorra. The Van Manen Drain was constructed pursuant to a Report prepared by W.E. Kelley and Associates Limited, Consulting Engineers & Planners, which Report was dated May 18th, 1976. The drain is therefore one of recent construction. Prior to the Kelley Report, a natural water course flowed from north to south from Lot 19, Concession 1, through Lots 18, 17, and 16, Concession 1, and Lots 16 and 15, Concession 2, Township of Zorra.
Pursuant to the Kelley Report, the drain was to consist of a main drain of covered tile and 5 branch drains (Branches “A” to “E”). The main drain commences at the east side of the Road between Concessions 1 and 2 in the west half of Lot 15, Concession 2; continues in a northerly direction across County Road 16; crosses the Road between Concessions 1 and 2 in Lot 16; continues in a northwesterly direction up through the east halves of Lots 16 to 19, Concession 1; and ends at the line fence between lots 19 and 20 in the west half of Concession 1. I have indicated the location of the main drain of covered tile and Branches “A” to “E” on the Sketch attached hereto. Branch “A” was not constructed and the route of Branch “D” was apparently changed from that set out in the Kelley Report. The Branches do not affect the issues raised in this appeal.
Before the Kelley Report, a natural watercourse existed along the drain route and since it was to be filled in, the Kelley Report also provided for a grassed waterway along the main drain route from the tile outlet to near the north limits of Lot 18 at Branch “D.” I have indicated the location of the grassed waterway on the Sketch attached hereto.
At the time of construction of the Van Manen Drain, it appears that the Engineer, Kelley, authorized the construction of a 600 mm pipe drain as extra work from the downstream side of the culvert under the road between Concessions 1 and 2 to an outlet alongside the main drain tile outlet. This 600 mm pipe drain was installed to admit additional surface waters at the request of the Appellant.
Mr. Jongert, who is the owner of property on Lots 17 and 18, Concession 1, requested that the Municipality, pursuant to Section 58 of the Drainage Act, provide for the improvement of the existing drain by adding an additional tile drain parallel to the existing tile drain.
The Respondent retained K. Smart Associates Limited to prepare a report on the improvement pursuant to section 78 of the Drainage Act. Mr. Kuntze of K. Smart Associate Limited, determined that what was required was a new tile drain to be installed beside the existing tile drain through the east halves of Lots 16 and 17, Conc. 1 to better serve the lands. The additional tile would give the drain more capacity so that it could admit some of the surface waters and allow it to better remove the surface runoff.
In addition, Mr. Kuntze indicated that the grassed waterway did not have to remain grassed.
Whether the Appellant has been totally satisfied with the drain as originally constructed is speculative. However, the Appellant has actively opposed the improvement proposed by Mr. Kuntze. He opposes the Smart Report on the ground that the grassed waterway should not be replaced by tile or be allowed to be ploughed up because the improved drain will not have the same capacity as the existing drain. The Appellant made representations to this effect to the Township Council at the time it considered the Engineer's Report.
Then the Appellant appealed to the Ontario Drainage Tribunal, which appeal was heard on January 4th, 1989. He appealed on the grounds that the benefit of the improved drain was not commensurate with its costs; that the current drain was handling the flow satisfactorily; and that the elimination of the grassed waterway would cause erosion. The Drainage Tribunal considered the assessments of various ratepayers on the drain and the benefit resulting from the modification to the drain. The Drainage Tribunal allowed the drain to proceed without modification other than to order that a larger tile, namely 21” rather than 18” should be installed.
Mr. Campbell then appealed to the Drainage Referee for relief on the grounds that the Engineer's Report did not meet the legal requirements of section 78 of the Drainage Act.
THE EVIDENCE
I am satisfied that the drain is currently operating and functioning normally. I accept Mr. Robert's evidence on this matter. Given the steep slope of this drain, water will flow to its outlet whether there is an additional tile drain or a grassed waterway. The only thing that the additional tile suggested by Mr. Kuntze will do is to increase the rate of flow.
Having allowed the Appellant to proceed with his appeal on the grounds that he would be affected, I was pleased to have Mr. Todgham advance the position that the drain did not comply with the legal requirements of Section 14(1) of the Drainage Act. That section states that an improvement of a natural watercourse shall not include a covered drainage works unless it provides capacity from all the surface water from the lands and roads draining naturally towards and into it and for all the waters from all the lands and roads assessed for the drainage works.
Mr. Todgham, a well recognized Drainage Engineer, gave evidence on behalf of the Appellant. Mr. Todgham stated that Mr. Kuntze used the wrong method in calculating the flow that the drain designed by him was capable of handling.
Mr. Todgham indicated that the natural water course or the 1976 Kelley Report with the grassed waterway would have a capacity to handle a flow of 54cfs while the 1987 Kuntze Improvement would have a combined capacity of only 22cfs. The flow of surface water in a once in two year storm would be 57cfs and both the natural water course and the 1976 Kelley Report would handle that flow but the improvement designed by Mr. Kuntze, without the grassed waterway, would only be capable of handling about 40% of the water.
Mr. Todgham's opinion assumes that Section 14(1) of the Drainage Act applies. It does not apply. We are no longer dealing with a natural watercourse and the change that Mr. Kuntze is recommending does not have to provide for all the surface water to be accepted by the covered drain.
Can the change suggested by Mr. Kuntze be said to be an improvement? On the whole, yes. The Drainage Tribunal had no problem in accepting the improvement to the drain and I am not substituting my opinion for theirs. I was thankful to Mr. Todgham for defining the difference between drainage coefficient system and the rational system. However, I am not going to substitute my opinion for that of Mr. Kuntze's as to the method of calculating the flow.
There will still be surface water and I am sure that the new tile will not handle it at all. The waterway is still there although it is not grassed at all times. Mr. Kuntze confirmed the continued existence of the waterway by giving evidence referring to cross sections across the waterway which showed the waterway still existed. It will be extremely difficult to remove the indentation in the land which is the waterway.
I am sure Mr. Jongert wishes to crop the waterway from time to time. My personal preference would be that he does not. However, I can do nothing to change the Engineer's Report because the report as a whole provides an improvement to the drain in that it carries water to its destination faster. As my predecessor, Referee Turville, stated in his Decision in Kilberg vs Township of Wallace, given on March 17th, 1988:
“As the present Section 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 Section 47(1).”
The Smart Report complies with the legal requirements of the Act.
I still have some misgivings regarding the fact that the soil through which this drain travels is Honeywood Silt Loam and it is quite erodible. However, the drain has been ploughed at various times during the past several years and neither Mr. Todgham nor Mr. Kuntze could point to any particular erosion nor could Mr. Campbell specifically refer to any silt deposits on his property. In fact, the velocity of the water coming down the steep slope will probably carry over silt into the stream.
The Smart Report at page 9 states: “I recommend that the costs of dealing with any erosion on the east half of Lot 18, be absorbed fully by the owners of the east half of Lot 18, and that the watershed has no responsibility for a waterway or the consequences of not having one here.” I find that if the Appellant, at some point in time, can demonstrate real damage to his property by silt, he may bring an action for damages under Section 111 of the Drainage Act, within the proper limitation period.
I was concerned that the additional culvert which was installed at the Appellant's request has not been incorporated into the Smart Report. However, the Appellant has not been assessed for the work and it was represented to me by Counsel for the Respondent that the Respondent will be responsible for maintaining the drain as built and not just as recorded. There was some evidence that in Mr. Kelley's final report of July 24th, 1978 to the Respondent, that these additions had been in effect tacitly agreed to by the Respondent and paid for by it.
In regard to the Appellant's evidence, I respect his tenacity and desire to defeat the improvement to this drain. However, his desire to defeat the improvement and oppose it thoroughly led him to be somewhat vague in his evidence. The vagueness was also present in his pleadings. Basically, the pleadings raised two complaints: (1) that the drain does not comply with the requirements of Section 14(1) of the Drainage Act; and (2) that the removal of the grassed waterway may cause him some damage. I have dealt with both those complaints and rejected them. I also totally reject Mr. Campbell's evidence that the Engineer or any Township Official acted improperly. However, I wish to thank him for a very able presentation of his case.
In the circumstances, the appeal will fail and the Respondent shall have its costs.
Pursuant to Section 107(1) of the Drainage Act, I set the Respondent's Counsel Fee at $300.00 per day for 2 1/2 days and the Respondent's fees for Mr. Kuntze at $250.00 per day for 2 days.
Further, the Respondent is entitled to its costs, in accordance with Sections 73, 109, and 110 of the Drainage Act on the scale set out in Tariff “A,” Rule 58.06 of the Rules of Civil Procedure, to be paid forthwith after assessment thereof by the appropriate Assessment Officer at the Court House in Woodstock.
DATED AT TORONTO, THIS 12TH DAY OF FEBRUARY, 1991.
R.T. JOHNSTON
DRAINAGE REFEREE