Belzner v. Dunnville (Town), 1992 ONDR 1

Ontario Superior Court of Justice - In the Court of the Drainage Referee

Belzner v. Dunnville (Town) 1992 ONDR 1

Date of Decision: 1992-01-14 Statute: Drainage Act Hearing: 1992-01-06

Between:

E. BELZNER, B. BELZNER, HERBERT CARTLIDGE, E. CARTLIDGE, J.CHAMBON, GISELLE CHAMBON, MR. & MRS. ROBERT COLE, PAUL COOK, LESLYANN COOK, JACK COVERDALE, MARIE COVERDALE, FRANK DEBSKI, J.DEBSKI, MR. & MRS. MICHAEL DOMJANCIC, GEORGE GALE, EVELYN GALE, GABE GALL, MARY GALL, LAWRENCE GOLDRUP, JOANNE GOLDRUP, M. HAWKES, ROY HINCHCLIFFE, LINDA HINCHCLIFFE, WILLIAM HOFFMAN, RALPH HOUSER, SALLY HOUSER, R. HUMFRIES, M. HUMFRIES, GEORGE KOBERNYK, RICHARD KOSON, LORRAINE KOSON, ROBERT LEWIS, L. LEWIS, GERALD MAGIERA, HELEN MAGIERA, E. MADRIS, J. MADRIS, MARTA MATUZZI, CLARE MOODIE, ANNE MOODIE, RAYMOND MOODIE, FAYE MOODIE, MR. & MRS. ARNOLD MURPHY, ANGELO POZZA, FILOMENA POZZA, D. PREST, P.PREST, ROBERT RULYS, S. RULYS, BRIAN STOLYS, A. STOLYS, GARY STROUD, S. STROUD, ROBERT TAYLOR, LUCY TAYLOR, JAMES TEMPLETON, JAMES WALKER, BARBARA WALKER, DONALD WEAVER, SYLVIA WEAVER, GORDON WILSON AND THELMA WILSON APPELLANTS,

• AND -

THE CORPORATION OF THE TOWN OF DUNNVILLE RESPONDENT.

Appearances: William D. Turville, Q.C. for the Appellants Wayne R. Watterworth for the Respondent

REASONS FOR JUDGEMENT

The subject of this appeal is the proposed Sutor Drain.

On February 13th, 1987, certain land owners in Parts of Lots 7 to 12, Clement Tract, Town of Dunnville, (formerly Canborough Township), and one land owner in Parts of Lots 9 and 10, Concession 2, Town of Dunnville, (formerly Canborough Township), petitioned the Town of Dunnville for a drain in the drainage area from lot 7 to Lot 12, Clement Tract, inclusive. A copy of the Petition is appended to this Decision as Schedule “A.”

After the Town of Dunnville accepted the Petition it appointed Mr. J. Kuntze from the firm of K. Smart and Associates Limited by Resolution dated February 24th, 1987, to prepare an Engineers Report under Section 8(1) of the Act. Mr. Kuntze by letter to the Deputy Clerk of the Town of Dunnville on April 10th, 1987 suggested that the Town might consider a preliminary report under Section 10 of the Act rather than a report under Section 8 of the Act. By letter dated April 23rd, 1987 the Deputy Clerk advised Mr. Kuntze that the Town of Dunnville wished him to prepare a preliminary report under Section 10 of the Act.

Mr. Kuntze had waited until April 10th, 1987 to contact the Town of Dunnville to allow the thirty (30) day notification period to the Petitioners, municipalities, concerned Conservation Authorities and The Ministry of Natural Resources to expire.

In the meantime, the Municipalities received a request from M. Kolisnyk and Nona Kolisnyk in Lots 3 and 4, Concession 2, Town of Haldimand (formerly North Cayuga Township) dated March 9th, 1987. The Request was as follows:

“We the undersigned, wish to add our names to the original Petition for Drainage Works by Owners, received in the office of the Clerk of the Town of Dunnville on February 13th, 1987: (Re: Sutor Drain.)”

A copy of this request is appended to this Decision as Schedule “B.”

On May 19th, 1987 Mr. Kuntze prepared and mailed on behalf of the Respondent, a notice of an onsite meeting of all parties affected to be held on May 27th, 1987. The notice indicated that the purpose of the meeting was:

“to examine the area and site of the proposed drainage works, being: improvement to the watercourse across Lots 7 to 13 in the Clement Tract which may also affect lands downstream in Lots 10 and 11, Concession 3 in the former Canborough Township and also with a possible extension upstream into Lots 3 and 4, Concession 2 of the former North Cayuga Township, now in the Town of Haldimand and you as an owner of land affected are requested to attend at such time and place.”

At or shortly after this meeting Mr. Kuntze determined the area requiring drainage to be an area running through Part of Lots 7 to 13, Clement Tract, Town of Dunnville, (formerly Canborough Township) and Part of Lots 3 and 4, Concession 2S, in the Town of Haldimand (formerly North Cayuga Township). The drain would require an outlet through the Blokker property on Lots 10 and 11, Concession 3, Town of Dunnville (formerly Canborough Township).

The area requiring drainage as determined by Mr. Kuntze is indicated on the drainage plan appended to this decision as Schedule “C.”

It is at this point that problems begin to arise as to the sufficiency of the Petition.

Section 9(2) of the Act requires the engineer to a) determine the area requiring drainage; b) determine whether the Petition complies with Section 4 of the Act for the area requiring drainage; and c) if he is of the opinion that the Petition fails to so comply, establish the requirements for a Petition to comply with Section 4. Section 9(4) of the Act requires the engineer to report to Council in the event that the Petition does not comply with Section 4 of the Act and to advise Council as to where the Petition is deficient, the amount of his fees and by whom they shall be paid. The Council is then to send a copy of that opinion to each Petitioner. In order for a Petition to be sufficient, a majority and number of owners must sign it under Section 4(1)(a) or the owners representing at least 60% of the hectarage in the area must sign it under Section 4(1)(b).

Mr. Kuntze in his evidence indicated that he only did the calculations to determine sufficiency of the Petition under Section 4(1)(b) of the Act. Both the Appellants and Respondent agreed that a valid signature of the Kolisnyk’s to the Petition was necessary for a sufficient Petition under Section 4(1)(b) given the area that Mr. Kuntze determined as the area requiring drainage.

I find that neither of the Kolisnyks were a signatory to the Petition at the time of the onsite meeting nor they are still not signatories to the Petition. The request dated March 9th, 1987 by the Kolisnyks to be added to the Petition does not make them, or either of them, a signatory to the Petition.

By the time of the onsite meeting, Mr. Kuntze either had a copy of the Kolisnyk request to be added to the Petition or had been made aware of the request. Mr. Kuntze’s evidence was that he regarded the request from the Kolisnyks as their “intention to be added to the Petition.” In the notice for the onsite meeting, Mr. Kuntze indicated that the area of the proposed drainage works might have a possible extension upstream into Lots 3 and 4, Concession 2S, of the former North Cayuga Township. This is the Kolisnyk property. It is clear from the words “possible extension” that Mr. Kuntze knew that the Kolisnyk property was not covered by the original Petition. Further, since he regarded the Kolisnyk’s request of March 9th, 1987 as their “intention to be added to the Petition” he knew they were not signatories to the Petition.

It is apparent from Mr. Kuntze’s evidence that he thought Mr. Kolisnyk would be added under Section 10(3) at the hearing to discuss the preliminary report and that Mr. Kuntze knew or should have been aware that neither of the Kolisnyks were signatories to the Petition and that the Petition did not have sufficient signatures given the area requiring drainage as defined by him. He should have reported this to Council. If he had the Petitioners upon being advised of the insufficiency of the Petition by Council, may have withdrawn the Petition and started with a new Petition including the Kolisnyks’. This would have got the proceeding off on the proper footing without incurring any further costs.

However, Mr. Kuntze did not do this and proceeded to prepare his preliminary report dated July 30th, 1988. The preliminary report was considered at a meeting of Council on September 26th, 1988. On that date Mr. Kuntze was authorized to prepare a final report on the proposed Sutor Drain.

The Kolisnyks were not added to the original Petition under Section 10(3) at this meeting. Mr. Kolisnyk was at the meeting as was Mr. Kuntze.

Although the appropriate procedure would have been for Mr. Kuntze to report to Council after the site meeting on May 27th, 1987 regarding the insufficiency of the Petition, the procedure may have been saved if Mr. Kuntze had brought to Council’s attention or Mr. Kolisnyk’s attention that his name should have been added to the Petition under Section 10(3) at this meeting. This meeting was some sixteen (16) months after the onsite meeting, which in my opinion, is more than enough time to rectify flaws in the process by Mr. Kuntze either reporting to Council on the insufficiency of the Petition or prompt preparation of the preliminary report. It is the Petitioners and Mr. Kolisnyk who suffer because of the delay in the discovery of the flawed procedure. I ascribe no blame to them because if the flaw had been pointed out to them, they could have taken remedial action in regard to the Petition.

A preliminary report, although it estimates an approximate cost of the drainage work, does not set out a schedule of assessment. Therefore the upstream owners in the watershed in the Town of Haldimand, had no real notice as to how much they might be assessed until Mr. Kuntze’s final report was prepared on October 25, 1989. His final report was considered by the Council of the Town of Dunnville of January 8th, 1990. Again, Mr. Kolisnyk’s name was not added to the Petition.

At the January 8th, 1990 meeting, a number of the upstream owners in the watershed who were assessed for outlet liability objected to their assessment. However, the Engineer’s Report was adopted by a provisional by-law passed at that meeting.

Mr. Kuntze’s evidence was that at the Court of Revision to consider assessments, a large number of the upstream owners appealed their assessments on the ground that they should not have been assessed for outlet liability. Mr. Kuntze also gave evidence that the Court of Revision rejected those appeals. A number of the upstream owners appealed to the Ontario Drainage Tribunal on the matter of assessment and the Drainage Tribunal held a hearing on the assessment appeals but withheld its decision until my decision has been rendered as the Tribunal’s decision may not then be necessary.

GROUNDS OF APPEAL

There are basically two grounds of appeal. The first ground of appeal is the sufficiency of the Petition and the second ground of appeal is the whether the drainage engineer applied the appropriate principle in assessing the upstream owners in the Town of Haldimand, many of whom are riparian owners along a natural watercourse.

SUFFICIENCY OF PETITION

I have already set out many of the facts as to whether the Petition was sufficient or not.

The original Petition filed with the Town of Dunnville on February 13th, 1987 was a petition for drainage for an area to include Lot 7 to 12, Clement Tract, inclusive. Once the engineer determined that the area requiring drainage should be extended to the Kolisnyks’ property in the Town of Haldimand, he should have notified the Council of the Town of Dunnville as to what was necessary for the Petition to comply with Section 4.

It was the judgment of Mr. Justice Robertson, C.J.O., in the Court of Appeal in the case of South Easthope v. East Zorra argued March 3, 1944 that an unauthorized alteration in the Petition invalidated the whole proceeding and he upheld the Referee’s decision to set aside the report. In that case Council had instructed the Clerk to add certain lands to a Petition that had already been signed. In this case, I would not dispute the engineer’s right to increase the area requiring drainage to a logical area in his opinion, but upon doing so he has to correctly determine whether the number of signatories to the Petition or the amount of land represented by the signatories to the Petition was sufficient under Section 4(1a) of 4(1b) and if it was not to report to Council.

As I have indicated before, the engineer knew or should have been aware that the number of signatories on the Petition was not sufficient under Section 4(1)(a) or 4(1)(b) and reported to Council accordingly.

I am of the opinion myself that wherever possible, procedural errors, whether by a landowner or the Township, should be forgiven if everyone has had an opportunity to make representations and no one has been harmed or injured. This view has also been urged upon me by Counsel for the Respondent.

However, I am not at all certain that I have the power under the Act to validate the otherwise invalid Petition in this matter. In any case, I am not prepared to relieve the irregularity in this case. The Petition is the cornerstone of the procedure for owners to obtain a sufficient outlet for their water. It must be properly completed and signed.

On ground of the insufficiency of the Petition, I have decided that the engineer’s final report must be set aside.

Several points were raised during the hearing which bear on the sufficiency of a Petition. Although not necessary for my decision in this matter, I wish to address them.

The first matter is whether all the signatures of joint owners, co-owners and partners are necessary on a Petition. The answer is that they are. If land is held by a husband and wife, whether jointly or as co-owners, both have to sign the Petition. The same applies to unrelated joint or co-owners, regardless of how many there are. If there are three (3) joint or co-owners they all have to sign. All partners of a partnership or land that is held as partnership property have to sign. This is for purposes of the Drainage Act and is regardless of the common-law or other statutes that may state what the legal effect of one joint or co-tenant or partner signing is. In the case of a Corporation, an authorized signing officer of the Corporation may sign the Petition. But, the proper name of the Corporation must be clearly printed on the Petition and the office held by the signing officer must be printed under his or her signature and the Corporate seal must be affixed to the Petition or a statement be included underneath the signing officers signature stating that he or she has authority to bind the Corporation.

The reason for the aforementioned is that Petitioners by signing the Petition make themselves liable to be assessed for the costs if the drain does not proceed and a clear intention from each person having an interest in the land that may be assessed or liable to the cost must be demonstrated by each owner.

The second matter is the meaning of Section 4(5) of the Act. Section 4(5) states as follows:

“4.(5) Where two or more persons are jointly assessed for a property, in determining the sufficiency of a petition they shall be deemed to be one owner. R.S.O. 1980, c. 126, s.4.”

This section means that where there is joint or co-tenants or partners, regardless of how many there are, they are only treated as one person for purposes of calculating a majority under Section 4(1)(a) of the Act.

I have indicated that all the owners of the same property must sign the Petition for their signatures count in favour of the Petition under Section 4(1)(a) of the Act. Similarly, all owners of the same property must sign the Petition for their property to be counted in support of the Petition in the calculation under Section 4(1)(b).

OUTLET LIABILITY OF RIPARIAN OWNERS

Mr. Todgham, who was called to give expert evidence on behalf of the Appellants, submitted that Mr. Kuntze proceeded upon an improper principle of assessment; namely, that upstream riparian owners who reasonably drain their lands into a natural watercourse are not liable for outlet liability. Mr. Turville submitted that I had jurisdiction to deal with the proper principles to be applied under the Drainage Act. His support for this position is in the case of Anderson, el at and the Township of Thurlow which was decided by Referee Clunis in November, 1968. At page 9 of that case, the Referee states:

“This brings me to the second allegation or complaint as set out in the second paragraph of the claims. I read this allegation to mean that the engineer did not follow the requirements of the Act in the method which he used to determine outlet, injuring liability or benefit assessments and therefore that the principle or principles which the engineer applied are contrary to those contemplated by The Act. It is clear that the first of the 3 groups giving rise to an appeal to the Referee under section 35 is that the report “does not comply with the requirements of The Act--”. It follows that this complaint may be dealt with by the Referee. Let us therefore examine the proposed work and evidence concerning assessments and the report.”

I am satisfied that I have the jurisdiction to determine whether the principle I have set out has been applied by the engineer in this case. In addition to setting the Engineer’s Report aside on the grounds that the Petition was defective, I have decided that the Engineer’s Report must be set aside on the basis that the engineer failed to consider whether any of the upstream owners were riparian owners discharging into a natural watercourse and therefore exempt from the outlet liability.

The rights of upstream owners to reasonably use a natural watercourse without liability for outlet assessment was first determined by the Ontario Court of Appeal in the Case of McGillivray v. The Township of Lochiel (1904). 8 O.L.R. 446. This case has recently been followed in both the Trial Judgment and the Court of Appeal Judgment in Scarborough Golf & Country Club vs. City of Scarborough, et al. The principle regarding the use of a natural watercourse by upstream owners is set out from by Mr. Justice Carthy, in the Court of Appeal decision 1988 CanLII 4829 (ON CA), 66 O.R. (2d) 257 at page 265 as follows:

“In McGillivray v. Township of Lochiel (1904), 8 O.L.R. 446 at pp. 449-50 (C.A.), Garrow J.A. quoted with approval from the case of Miller v. Lauback, 47 Pa. St. 154 (1864). In the case of Miller v. Lauback (1864) 47 St, 154, the law is in my opinion well stated as follows: “No doubt the owner of lands though which a stream flows may increase the volume of water by draining into it without any liability to damages to a lower owner. He must abide the contingency of increase or diminution of the flow in the channel of the stream because the upper owner has the right to all the advantages of drainage or irrigation reasonably used which the stream may give him.”

To the same effect is the recent decision by this Court in Re Elma and Wallace (1903), 2 O.W.R. 198. And what is a “reasonable use” is defined in McCormich v. Horan (1880), 81 N.Y. 86, as a use up to the capacity of the banks of the stream. See also Gould on Waters, 3rd ed. (1900), sec. 274; Young v. Tucker (1899), 26 A.R. 162.”

Both in his evidence and in his preliminary report, Mr. Kuntze has indicated that the watershed consists of several branches of a natural watercourse. The soil is a lacustrine clay which is not suitable for tile drainage and therefore most drainage into the natural watercourse is by private ditches or swales. Mr. Kuntze has indicated that the watershed is served by three branches of the natural watercourse upstream from the proposed drainage works. Both the evidence of Mr. Kuntze and Mr. Todgham was that from their review of the base mapping available from the Ministry of Natural Resources and for their own inspection the watershed had few tile drains and some private ditches.

Mr. Todgham indicated that he was involved in a drainage scheme near Sweets Corners in the Town of Haldimand some time ago. This is a considerable distance south of the watershed which is the subject matter in this action and does not affect the watershed. Mr. Todgham indicated there was some improvement at the very most westerly portion of the watershed. Ms. Janet Lankester, who is the Clerk of the Town of Haldimand, indicated that she was not aware of any improvements to any natural watercourses in the Town of Haldimand from her personal knowledge or from her search of the records of the Town of Haldimand. Mr. Daniel Weaver, Mr. Jack Coverdale, Mr. Gary Stroud and Mr. Arnold Murphy, who were all Appellants and the youngest of whom have lived in the area for a minimum of 46 years, cannot recall any improvements to the natural watercourse in the watershed. Some of them do drain their lands into the natural watercourse in the watershed.

There was no evidence that any upstream owner who is not a riparian owner had constructed a drain to drain into any of the branches.

Both Mr. Kuntze and Mr. Todgham stated in their evidence that they had not dealt with an upstream area as large as the upstream area on the plan appended hereto where the upstream watercourses were in such a complete natural state.

In the circumstances of this case and in the circumstances of any engineer’s report dealing with natural watercourses, it is necessary that the engineer ask himself “Are any of the upstream properties that I assess for outlet liability entitled to be exempted from outlet liability because of the riparian rights of the owners to drain their lands into a natural watercourse?”

Mr. Kuntze’s evidence was that he did not ask himself that question. In fact, his evidence was that he was of the opinion that he could assess all upstream owners for outlet liability. He based this opinion on a paper on outlet and injuring liability given by Mr. E.H. Uderstadt, an Ontario Land Surveyor and drainage engineer, at the 1977 Drainage Engineers Conference. In that paper, Mr. Uderstadt stated as follows:

“This section has caused many controversies and differences of opinion. It is an accepted fact that common law always applies except insofar as it has been varied by Statute.

Under common law, surface or percolating water not flowing in a natural watercourse has no right of drainage.

By statute and by applying the stipulated provisions this right to drainage may be acquired. The statutory law covers all aspects of land drainage. It must be strictly interpreted in its entirety and cannot be read interchangeably with common law.

Section 23 is not particular at all how water will get into a drainage works “either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse.” Lands and roads are assessable for outlet liability as long as the water is artificially caused to flow.

If it can be assumed that water can flow naturally only off land which is still in its natural state, then it must follow that once the settlers started clearing, burning, grading and making other developments, a change in the drainage pattern was inevitable, water was unintentionally “artificially caused to flow” and therefore these lands have been assessable for outlet liability ever since. As time went on, more sophisticated drainage systems were constructed such as open ditches, tile installations, etc., so that water was collected and vented downstream and was intentionally “artificially caused to flow” and the lands doing so became assessable for injuring liability.

Possibly this explanation is oversimplification but the fact that many reports have been written and accepted on that assumption must speak for itself.”

The principle set out by Mr. Uderstadt is completely and wholly wrong.

Mr. D.S. O’Brien, who was then Chairman of the Ontario Drainage Tribunal, set out the principle correctly in the paper he delivered at the 1982 Drainage Engineers Conference as follows:

RIPARIAN RIGHT OF DRAINAGE

Any landowner whose land abuts upon a natural watercourse has the right to drain those lands into the natural stream. There are, however, some exceptions, the first of which is the requirement that the riparian owner not bring waters into a natural watercourse which had not fallen upon land located in the watershed. If the farmer owns a farm bordering on a natural watercourse, he may purchase a second farm which does not border on the watercourse. By the common ownership of the property he is entitled to drain both farms into the natural watercourse, providing the second farm is within the watershed.

The second limitation of a riparian owner, which is clearly established in common law, is the prohibition against the sale of assignment to an owner of the right to drain into the natural watercourse. The riparian rights are limited to riparian owners (e.g. frontage on a natural watercourse).

This right of drainage allows a riparian owner to collect the water which falls on his land in ditches or drains and discharges the same into watercourses. He is not liable to downstream owners providing his use of the natural watercourse is “reasonable use.” Reasonable use has been defined by the United States authorities as use up to the capacity of the banks of the stream.

OBLIGATION OF RIPARIAN OWNER

The Riparian Owner is not only entitled to have water in a natural watercourse flow through his land in its natural state as a benefit, but is also obliged to receive it if it becomes a nuisance due to flooding, erosion or other reasons.

He has no legal ground for complaint if the riparian owners above him reasonably use the stream as an outlet for agricultural drains, even though the result is to increase the amount of water and flooding of his land.

On the other hand, persons, not riparian owners, who obtain an outlet to the stream, are liable to a downstream riparian owner whose land is damaged but he increased amount of water. It should also be noted that statutory rights of outlet such as those under the Drainage Act in no way interferes with the common law right of a riparian owner.”

An engineer when preparing a report under the Drainage Act, should determine by whatever means he wishes to use -- site inspection, basemapping, aerial photography -- what properties may or may not be exempt from outlet liability because they have riparian rights. In this Report he should include a statement similar to the following:

(a) “After review, there are no properties which have riparian rights”; or

(b) “Lot X, Concession Y, and Lot A, Concession B, have riparian rights of drainage and are not subject to outlet liability”; or

(c) “Lot A, Concession B, has some riparian rights of drainage but I have assessed it for outlet liability because ---.”

The fact that the drainage engineer brings his mind to the question that properties with riparian rights may be exempt from outlet liability and demonstrates in his report that he has addressed this principle prevents the Report being set aside on that ground. Then the matter becomes one of assessment to be dealt with by the Court or Revision of Drainage Tribunal on an assessment appeal. If an Appellant feels the engineer has incorrectly applied the principle, then the Tribunal can give him relief. It is only in situations such as this one, which is a rather unique situation given the large size of the watershed in its natural state, where the engineer has not applied the principle, that the report will be set aside.

Mr. Todgham’s evidence was that all the upstream landowners did not have riparian rights and those that did not, could be assessed for outlet liability.

I order that the Report of Mr. Kuntze dated October 25th, 1989 be set aside 1) because it was based on a Petition which did not comply with Section 4(1)(a) or 4(1)(b) of The Act and 2) because the Engineer did not apply the principle that upstream owners reasonably draining their lands into a natural watercourse are not liable for outlet liability.

The costs of the preparation of the Preliminary Engineer’s Report; the costs of the Engineer’s Report; and all other costs incurred by the Respondent in regard to the proposed Sutor Drain are not to be charged to the Petitioners or their lands and are to be paid out of the general funds of the Town of Dunnville.

The costs of this appeal shall follow the result. The Appellants shall be entitled to their costs on a party and party basis to be paid forthwith by the Respondent after being agreed upon by the parties or assessed by the Registrar at Cayuga. I direct the Registrar to assess the costs as soon after the delivery of the Bill of Costs by the Appellants as is possible.

Costs are to be assessed on the basis of Tariff A under the Rules of Civil Procedure. Regarding Part I, Solicitors Fees, Item 13, counsel fee at trial is fixed by this Court at $500.00 per day; and in Part II, Disbursements, number 26, Experts attendance at Trial is fixed at $350.00 per day.

DATED AT TORONTO, ONTARIO, THIS 14TH DAY OF JANUARY, 1992.

R.T. JOHNSTON ONTARIO DRAINAGE REFEREE