ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
Rundle v. Blanshard (Township) 1991 ONDR 3
STATUTE: Drainage Act
HEARING: 1991-08-13
BETWEEN: ROBERT JAMES RUNDLE AND BARBARA J. RUNDLE APPLICANTS
- AND -
THE CORPORATION OF THE TOWNSHIP OF BLANSHARD AND McCUTCHEON FARM DRAINAGE LIMITED AND JOHN RUNDLE AND SUSAN RUNDLE RESPONDENTS
APPEARANCES: ROSS R. NICHOLSON FOR THE APPLICANTS MICHAEL E. MITCHELL FOR THE RESPONDENT, LOUIS J. CROWLEY FOR THE RESPONDENT NO ONE FOR THE RESPONDENTS JOHN & SUSAN RUNDLE
REASONS FOR JUDGEMENT
This Application came on for Hearing before me at Stratford on Tuesday, August the 13th and Wednesday, August the 14th, 1991.
At the commencement of the Hearing, no one appeared for the Respondents, John Rundle and Susan Rundle. No claim was advanced against them by any of the other parties. Upon the motion of Mr. Nicholson for the Applicants, and the consent of Mr. Mitchell for the Respondent Township, and Mr. Crowley for the Respondent, McCutcheon Farm Drainage Limited, the Application against the Respondents John Rundle and Susan Rundle, was dismissed without costs.
At commencement of the Hearing on the second day, upon the motion of Mr. Crowley, counsel for McCutcheon Farm Drainage Limited, who had, to that time participated in the Hearing, and upon the consent of Mr. Nicholson for the Applicants and Mr. Mitchell for the Respondent Township, the action against McCutcheon Farm Drainage Limited was dismissed without costs.
I would like to thank all the Witnesses to this Proceeding. Every Witness who gave evidence did so in a forthright and clear manner. I would like to thank Counsel who ably presented their Clients’ position.
This matter resulted from the Applicant and a neighbour, Mr. Hazelwood, agreeing with the Respondent Township to the installation of a plastic drain across their properties to assist the Applicant’s brother, Jack Rundle, to have a better outlet for tile drainage which he was installing on his farm.
The property owned by Jack Rundle and Jim Rundle was originally a one hundred acre parcel in Lot 8, Concession 7, Township of Blanshard. Sometime after the death of their father they divided the property on a north-south axis into two fifty acre parcels with the west parcel being transferred to Jack Rundle and the east parcel being transferred to Jim Rundle.
The Denham Drain consists of an open ditch drain, which crosses the south end of Jim Rundle’s property, and a clay tile drain known as Branch #2, which crosses Mr. Bryan’s farm which is to the east of the Applicants’ farm, then across the northeast corner of the Applicants’ property, and finally to Mr. Jim Hazelwood’s property across the road from and to the north of Jim and Jack Rundle’s property. There is a catch basin at the end of the clay tile drain. When Jack Rundle’s property was being systematically tiled, the foreman for McCutcheon Farm Drainage Limited discovered that a portion of the Branch #2 into which they were going to tie Jack Rundle’s tile was not functioning properly. At that time, Jim or Jack Rundle or Mr. Hazelwood, or any or all of them, approached the Respondent Township to see what could be done.
It was, first of all, determined that Branch #2 was, in fact, a Municipal Drain. It somehow was decided that a supplementary plastic tile would be run on a course similar to the existing clay tile from the catch basin on Mr. Hazelwood’s property to the open ditch portion of the drain on Mr. Bryan’s property. A copy of the plan of the drain is appended to this Decision.
It was the evidence of Mr. Jim Rundle and his wife, which I accept, that the drainage of their property worsened after the installation of the plastic drain. The Applicant suffered drainage problems consisting of ponding, a flooding basement, blow-outs and generally slower drainage in the spring and fall. The problems were particularly worse in the northeast corner of Mr. Jim Rundle’s property, which is the location of his driveways, house and barns.
I accept Mr. and Mrs. Rundle’s evidence that their basement was dry prior to the installation of the plastic drain and suffered severe flooding after it. This is consistent with evidence that the new plastic drain was installed to the northeast of the existing clay tile drain. The plastic drain was installed by a plough and would undoubtedly have cut off any lateral drains, if any, flowing from the area of Mr. Rundle’s house, barns and driveways. I find that the installation of the supplementary plastic tile worsened the drainage on the Applicant’s property.
The first question to be determined is: Should the Municipality have appointed an Engineer under s. 78 or proceeded in the manner it did? The answer is: Yes, the Municipality should have appointed an Engineer under s. 78. The plastic pipe which was installed was an additional drain, not contemplated or recognized in the original 1929 Drainage Bylaw. It was to improve drainage and not to repair or replace it. This is very clear from the evidence of Mr. McCutcheon and Mr. Wilkinson. A portion of the existing clay tile drain was found to be working on Mr. Bryan’s property, and therefore, there is undoubtedly some improvement or attempted improvement in the drainage.
The Respondent Township, when improving the drain, should have proceeded under s. 78 and not under s. 74 or under s. 77 of the Drainage Act. S. 77 of the Drainage Act does not apply to the addition of a supplementary drain. It is not the deepening, widening or extending to an outlet contemplated by that section.
Nor is this Application time barred by s. 64 of the Drainage Act. That section applies to appeals to the Tribunal on newly constructed drains; drains constructed pursuant to an Engineer’s report under s. 78, or perhaps work done under s. 77.
As a result, Bylaw No. 11-1985 is hereby quashed. Any monies paid by landowners pursuant to that Bylaw are to be refunded by the Respondent Township to the landowners at the time, which made the payment, together with interest thereon at the rate the Municipality charges on overdue taxes. Any arrears on the tax roll for payments which have not been made are to be removed together with any interest and penalty charged thereon. No amount expended on the so called repair of the drain in 1984-1985 are to be charged to the landowners, but are to be paid out of the Municipality’s general funds, if they have not already been so paid.
How best do we proceed from here? An Engineer has to be appointed under s. 78 of the Act and I am ordering this to be done under s. 79. When should the Engineer be appointed?
It is possible that if Mr. Jim Rundle had of co-operated with the Respondent Township in 1984-1985 in locating the blow-outs that the drainage of his property would have improved. If Mr. Jim Rundle has had the blow-outs return for a number of years, he should know exactly where they are and where they occur.
I am not prepared to recommend abandoning the practical approach adopted by the Respondent Township as yet. I order the Applicants, particularly Mr. Jim Rundle, co-operate with the Respondent Township, its agents, servants, employees, and contractors, including representatives of McCutcheon Farm Drainage Limited, if necessary, to locate blow-outs and the location of cut tile drains that need hooking up; and I order the Township and its contractors, agents and servants to do this work without cost whatsoever to the Applicants and to have this work done no later than November 30, 1991, taking into account Mr. Rundle’s working hours and the crops he has planted.
The operation and functioning of Branch #2 of the Denham Drain is then to be closely monitored by the Township Drainage Superintendent under the supervision of a Drainage Engineer appointed by the Township, which may be, but not need be, Mr. Kelley. This monitoring shall take place until crops are planted on the Applicants’ farm in the spring of 1992, at which time the Drainage Engineer shall be appointed by the Township to report to the Township as to whether Branch #2 of the Denham Drain is functioning properly or whether further work should be done on it.
The Applicants shall then have all the rights of appeal under the Drainage Act from the report if he’s not satisfied with the working of the drain at that time.
The costs of preparation of the Engineer’s report in the spring of 1992 shall be charged to the drain, but none of the costs spent in monitoring Branch #2 during the fall and winter of 1991 and the spring of 1992, either by the Drainage Superintendent of the Drainage Engineer, prior to the actual preparation of the report shall be charged to the drain. Those costs are to be paid out of the general funds of the Township.
The failure of the Township to follow the procedures set out in the Drainage Act makes it liable for the damages proved at this Hearing are the damages to the basement. The Applicant has produced a paid account in the amount of $1,863.36 for basement repair. This is only several hundred dollars more than an estimate he received in 1986 and I find the difference not to be significant. He also paid $94.95 for pump to pump water from his basement. I order that the Respondent Township pay to the Applicants the sum of $1,863.36 for repair to the basement and $94.95 for payment of the pump. The costs in this Application shall follow the result and the Applicants shall be entitled to their costs on a party and party basis to be paid forthwith by the Respondent Township forthwith after being agreed upon between the parties or assessed by the Registrar at Stratford forthwith after delivery of a Bill of Costs of the Applicant.
Costs are to be assessed on the basis of Tariff A of the Rules of Civil Procedure. Regarding Part I, Solicitor’s Fees, Item 13, Counsel fee at Trial is fixed by this Court at $500.00 per day; and on Part II, Disbursements, Number 26, Expert’s Attendance at Trial is to be fixed at $300.00 per day.
DATED AT STRATFORD, ONTARIO, THIS 14TH DAY OF AUGUST, 1991
R.T. JOHNSTON DRAINAGE REFEREE