ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Reid v. Admaston (Township) 1991 ONDR 2

DATE OF DECISION: 1991-02-08

1991-02

STATUTE: Drainage Act

HEARING:

BETWEEN:

DAVID REID APPLICANT,

• AND -

THE CORPORATION OF THE TOWNSHIP OF ADMASTON RESPONDENT,

• AND -

GENERAL ACCIDENT INSURANCE COMPANY THIRD PARTY

REASONS FOR JUDGEMENT

This Motion was heard by me on Friday, February 8th, 1990 at the Tax Court of Canada in Ottawa, Ontario. Mr. Dickinson brought a Motion on behalf of the Respondent for an Order that the Applicant was estopped from making the claim for damages in his Statement of Claim because of a settlement between the Applicant and the Respondent in 1985. Mr. Dickinson’s Motion also asked me to consider whether I had jurisdiction to order the Respondent to appoint an Engineer under 78(1) of the Drainage Act, R.S.O. 1980 Chapter 126.

Mr. Carr-Harris, on behalf of the Applicant, also filed a Motion for an Order amending the Applicants’ claim by the addition of the following paragraph 1 of the said application:

“(ff) an Order directing the Respondent to repair, maintain and, or alternatively improve the drain pursuant to the provisions of section 74, 75, 78, and 79 of the Drainage Act, R.S.O. 1980 Chapter 126.

(fff) an Order directing the Respondent to obtain an Engineer’s report or preliminary Engineer’s report for the better use, maintenance or repair of the drain.”

The Order sought by Mr. Carr-Harris was consented to by Mr. Dickinson on behalf of the Applicant.

After hearing the arguments of Counsel for both the Applicant and the Respondent I invited Mr. Carr-Harris to make a Motion for an Order directing the Respondent to obtain an Engineer’s report or preliminary Engineer’s report for the better use, maintenance or repair of the drain. Mr. Carr-Harris made that Motion. I order that the Respondent obtain a preliminary Engineer’s report on the Reid Drain under s. 78(1) of the Drainage Act. The appointment of the Engineer is to be made within 30 days.

Mr. Dickinson did not consent to the making of this Motion, nor my Order.

I also order that the Engineer used by the Respondent to prepare the preliminary Engineer’s report not be Greer Galloway and Associates Limited. I further order that the Applicant pay the Respondent arrears of taxes in the amount of $2697.64 plus accrued interest to date of payment, forthwith. I make the Order that the Applicant pay the arrears of taxes because, although the Respondent may not have properly done work on the Applicant’s property pursuant to By-law, it did the work in good faith to relieve the problem confronting the Applicant. I was also concerned that the Applicant, as well as the Respondent, did work on the property and contributed to the continuing drainage problem.

During the course of his argument Mr. Dickinson indicated that the Respondent was willing to pay damages resulting from installation of a berm on the Applicant’s property. These damages were set out in Mr. Reid’s Affidavit of May 31st, 1990.

The Respondent will therefore pay to the Applicant the sum of $600.00 for the application of herbicide to kill weeds in fill used on the Applicant’s property and the sum of $800.00 for the loss of four experimental crops of corn of the Applicant. These payments are to be made forthwith by the Respondent.

In regard to the Motion brought by Mr. Dickinson I find that it should succeed. Other than those damages admitted by the Respondent above, the Applicant is estopped from claiming damages in this action. The Applicant, with the advice of counsel, signed a full and complete release in favour of the Township in 1985. Although the release is very broad it does not violate any public policy. The meaning on the face of the release is quite clear: Mr. Reid released the municipality from claims for damages resulting from errors in construction of the drain, design of the drain, and future repairs.

In coming to that conclusion I rely on the case of the Town of Grand View v. Arthur Herbert Doering 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, with particular reference to Judge Richies’ comments at the bottom of page 633 and the top of page 634. I am also relying on the case of Henderson v. Henderson, [1843] 3 Hare 100 at pp. 114-115.

I also come to that conclusion on the fact that the Applicant has relied on self help remedies and has failed to take those appeals available to him under sections 64 and 111 of the Drainage Act within the appropriate time periods.

There has to be an end to this litigation at some point in time. The ingenuity of Counsel may create apparently new grounds for litigation but I find, as a fact, that there was no problem in this case which would cause damage to the Applicant which could have been known at the time the Applicant signed the release in 1985.

Although the Applicant is estopped from claiming damages against the Respondent in this action it is not a bar to his right under the Drainage Act to apply to this Court for the Order asked for by his Counsel, namely a preliminary Engineer’s report for the Reid Drain.

The Greer Galloway Engineer’s report was prepared in 1971. The drain has had a history of malfunction and considerable repair since that time and it continues to date.

The Applicant owns most of the property on the Reid Drain and he will be assessed most of the costs for an Engineer’s report and any subsequent construction. There are also other co-adventurers which are served by the Reid Drain. They are entitled to a properly functioning drain, as well as Mr. Reid, and it is the responsibility of the Township to provide it. The drain, as presently constructed, does not provide it.

The material before me consisted of the Application Record, which includes the Affidavit of David Reid, sworn May 31, 1990; the Affidavit of Ronald Ferguson, sworn July 26, 1990; Mr. Dickinsons’ Motion Record, which contains the Affidavit of Beverly Briscoe, sworn January 17, 1991; the transcript of the examination of Mr. David Reid on October 23, 1990; Mr. Carr-Harris’ Motion Record which includes the Affidavit of Jane Bachynski, sworn February 5, 1991, and the Supplementary Affidavit of Jane Bachynski, sworn February 5, 1991.

I read all the material. I find, as a matter of fact, that although the drain carries water that the drain was not constructed properly and is not operating properly. I make this finding on the facts disclosed in both the Applicant’s and Respondent’s material. The only way to resolve this matter is to have a new Engineer’s report on the drain. In the circumstances I believe a preliminary Engineer’s report would be appropriate.

The dispute between the Applicant and the Respondent has been non-stop since the construction of the drain. Through his current solicitors and his former solicitors Mr. Reid has continued to make the Respondent aware of the nature of his complaints. The Respondent cannot say that it was not award of the nature of the Applicant’s complaints. I find, as a matter of fact, that the Respondent has had adequate notice of both the Applicant’s requests to properly maintain and repair the drain and his claim for an Order directing the Respondent to obtain an Engineer’s report on it.

Section 79(1) of the Drainage Act confers on the Referee the power to compel the municipality to take necessary acts to maintain and repair a drain if a person affected applies to the Referee for such an Order. Where, as I have found that the only way to determine what has to be done to properly maintain and repair this drain is to have an Engineer’s report on how the maintenance and repair are affected by the improper construction, it is within my jurisdiction to compel the Respondent to appoint an Engineer under s. 78(1) of the Drainage Act. The Applicant and his co-adventurers on the drain will then have all the rights flowing from the procedures set out in section 10 of the Drainage Act.

If it is necessary for either party to seek further directions from me to carry out this Order, either party may, upon 10 days notice, bring a Motion for further directions.

I believe that my Order disposes of all matters which were in dispute between the Applicant and Respondent. I therefore order that the action between the Applicant and Respondent be dismissed. I do, however, reserve the issue of costs to be determined by me at a later date. I am not making an Order as to costs at this time. I encourage the parties to settle the issue of costs between them. If they cannot agree I may be spoken to as to the issue of costs.

If there are any outstanding matters between the Respondent and the Third Party which cannot now be settled between them I will hold a hearing on the Third Party claim. If matters are settled between the Respondent and the Third Party I shall make such Order as requested by those parties.

THIS DECISION DELIVERED AT OTTAWA ON THE 8TH DAY OF FEBRUARY, 1991.

R. T. JOHNSTON

DRAINAGE REFEREE