Hodgson v. Mariposa (Township), 1993 ONDR 1

Ontario Superior Court of Justice

In the Court of the Drainage Referee

Hodgson v. Mariposa (Township) 1993 ONDR 1

Date of Decision: 1993-03-01 1993-01 Statute: Drainage Act Hearing: 1993-03-01

Between:

R. Hodgson, W.J. MacLeod, N. & E. Crowder, P. & S. Hughson, Zehava Saarony, O. & M. Desroches, F. Akrey, Douglas E. Fish Appellants

• and -

The Corporation of the Township of Mariposa Respondent

Appearances:

The Appellants, in person c/o Frances Akrey Ronald J. Swain for the Respondent

Decision

The Drainage Referee:

The appeal of Zehava Saarony and others from the report of John Kuntze dated March 8, 1991 on the proposed Schmid drain in the Township of Mariposa, in the County of Victoria, came on for hearing before me on Monday, the 1st day of March, 1993 at Lindsay.

The appellants were Mr. R. Hodgson, Mr. & Mrs. W. MacLeod, Mr. & Mrs. Crowder, Mr. & Mrs. P. Hughson, Mrs. Zehava Saarony, Mr. & Mrs. Desroches, Mr. Francis Akrey, and Mr. Douglas E. Fish.

I dismiss the appeal of Mr. Fish. He is not in the proper forum. He is not assessed under or affected by the proposed drain. His concerns regarding the quality and additional flow of water down to his property, which is some several concessions south of the proposed work, should have been addressed at an earlier stage.

There may be a flaw in the Act that people who are concerned about affects of drains on their property do not have notice at an earlier stage. However, this matter is a political matter to be dealt with by a change to the Act as to how notice is to be given of proposed drains. Perhaps they should be advertised in local papers. In any event, since it is my intention to set aside the report of Mr. Kuntze, he will have his relief even though his appeal is dismissed.

I wish to deal with some of the grounds of appeal advanced by the appellants other than those on which I am basing my decision. Mr. Kuntze is both the Drainage Superintendent and drainage engineer on this drain for the Township of Mariposa. I have previously made comments in the appeal of Horne and Dempsey v. Township of North Easthope that I think that there is a potential conflict built into situations where engineers are retained as drainage superintendents then proceed to prepare drainage reports. My major concern is that they have an obligation as superintendents to all the ratepayers but as engineers they exercise a quasi-judicial function and there may be some conflict between their responsibilities. Having said that I feel Mr. Kuntze in this particular case has worn the hat of drainage superintendent and drainage engineer separately and without conflict. His evidence was very explicit on this point as to the precautions he took not to confuse his two roles. My comments on this point are not a ground for my decision.

The appellants raised several issues with which I could not deal. It was up to the tribunal to deal with loss of access under section 32 and 33 of the Drainage Act. The appellants request that I review the Ontario Tribunal decision is not possible and not within my jurisdiction under the Act.

In regard to the appellants’ claim that the engineer did not file his report in a timely fashion and as a result may forfeit compensation I find these are not matters over which the appellants have any authority. It is the Municipality that decides whether the engineer is proceeding promptly enough and as a result may or may not forfeit his compensation.

In regard to the issue of whether the notice for the council meeting was sent in a timely fashion I find that it was sent on April the 17th on the basis of the evidence and explanation of the Township clerk. I might suggest a little bit more time be given than the ten days in situations where you’re concerned that the mail has to go such a convoluted route to reach the ratepayers and I accept that most appellants did not receive their notice of the meeting until Friday, April 26th, 1991 and that the meeting which was to be held on April 29th, 1991 caught many of the upstream owners by surprise. However, I think nothing turns on this as they suffered no prejudice. All of the upstream owners except Mr. Akrey seemed to have attended the meeting and were given an opportunity to register their complaint.

In regard to Mr. Kuntze’s practice of preparing, signing, and sending the notices for the on site meeting I think this is a practice to be discouraged. It does not technically comply with the Act as the notices are to be signed by the Clerk and sent out by the Clerk. I can understand that the engineer may very well be the best person to do the ground work in determining who the notice should be sent to but then should consult or contact the Clerk to review those persons to whom the notices are to be sent and actually have the Clerk send the notices. In this case nothing turns on it. Everyone who should have received a notice did and attended the on site meeting.

I find that Mr. Kuntze was not prejudiced against Mrs. Saarony. Mr. Kuntze’s evidence on this point was very clear. I would have been concerned if Mr. Kuntze as a drainage superintendent would have said that he would have put the open drain through her property whether she liked it or not when he met with her on March the 20th, 1990. I find that he did not make such a comment on March the 20th, 1990. He may have made a comment, or something similar to it, at the July 19, 1990 on site meeting. While it may not have been the kindest thing to have said, again, it is my opinion that nothing turns on it. At that time Mr. Kuntze was exercising his functions as an engineer to determine the best drainage plan, in his opinion, to solve the problem of Mr. Schmid.

In regard to the point which the appellants have raised regarding the fact that they have not received altered assessments I find that this is a minor matter. The assessments were changed in a very minor way by the Tribunal and the changes in the assessment can be easily understood by anyone.

I now come to the two issues which cause me the greatest concern in this case. They are: the area requiring drainage as defined by Mr. Kuntze, and whether he should have assessed the upstream owners in the manner he did for outlet liability.

First, let me say that council for the Township of Mariposa accommodated the appellant to a very great extent. At the beginning of this hearing Mrs. Saarony produced an amendment to the Statement of Claim introducing the issues of assessment for outlet liability of the upstream owners and Mr. Kuntze’s definition of the area requiring drainage. I do not know whether Mrs. Saarony was trying to take anyone by surprise or not but I have given her the benefit of the doubt. She, and the other appellants had ample opportunity, from the time that the procedure order in this matter was granted to the date of this hearing, to give adequate notice of all the grounds on which they were basing their appeal. They chose not to retain counsel and delayed until the last moment to establish the two fundamental bases of their claim. I acknowledge that Mr. Swain has not had a chance to review the cases relating to the two grounds of appeal. However, as I shall explain hereafter, I do not think it would matter, in any event, if he had an opportunity to research the law given my decision in the case of Belzner, et al v. the Town of Dunnville on the Suter drain. Once the ground of appeal is advanced by the upstream owners that they should not be assessed, and I find the evidence supports that ground, I am bound to follow my previous decision.

The area requiring drainage as defined by Mr. Kuntze in his drainage report was the lands that have been tile drained on the Schmid property, south of the water course, that remained to be tiled. I am totally satisfied that this is the real area requiring drainage based on the decisions of my predecessor, Referee Turville in the Westendorp v. Township of Elizabethtown, decision dated June 2, 1986. Referee Turville referred to a letter from Referee Henderson to the Clerk of the Township of West Williams dated November 29, 1929. Referee Henderson states: “What you need is, in the first place, a reasonably well defined drainage area, that is, a section of land requiring drainage, and it is this territory which should be described in the area. It is, of course, not proper to pick out just enough lots to enable a majority, but there should be what I generally speak of as an irregularly shaped saucer with reasonably well defined banks around it. This might be all on one lot, although that is, of course, a rare case, but the point is that once you have a low lying section of land requiring drainage, it is the majority of the owners in that section that you need for the petition, no matter how many others the engineer may bring in.” Referee Turville followed that decision in the case of Jones v. Township of Derby, which is a decision of his dated December 8th, 1986 in which he said of the engineer’s decision to include some additional land, “This decision is made without first studying physical conditions of the land to determine if, in fact, they would fall within the area requiring drainage as determined by him in his capacity of engineer and not to readily accept the area described in a Petition. This approach does not coincide with Referee Henderson’s statement. You cannot adjust the irregular “shaped saucer” shaped with reasonably well defined banks around it “just because a landowner indicates his desire for drainage, without first ascertaining where those well defined banks are located on the ground.” In his zeal to accept the petitioner’s version of the area requiring drainage Mr. Mannerow has not formed a proper independent judgment in making his assessment.”

I would add that in determining the area requiring drainage there should be some physical characteristic which is different where the proposed drain ends from that of the surrounding territory. This could be the extent of the grade; the kind of cropping that is taking place in the area, or other physical characteristics. This does not seem to have been the case with the Schmid drain.

I have voiced my concerns about the engineer’s definition of the area requiring drainage in the proposed Schmid drain. However, without expert evidence from the appellants, in this instance, I am not prepared to say that Mr. Kuntze has not defined an area requiring drainage. I have my concerns but they will remain only my concerns and not a ground for setting aside Mr. Kuntze’s report.

I find on the evidence that there is a natural water course from at least Jack Lunney’s property down to Laurel Belyea’s property. Frank B. Proctor in his commentaries published in 1908 on the Municipal Drainage Act states at page 24, “In view of the foregoing cases the following brief definition is suggested. Wherever water has created for itself a defined channel with visible banks or margins (per Armour, C.J.O. in Williams v. Richards [1893], 23OR651, at page 656) within which running water may be found during at least certain seasons of the year, in sufficient volume to be of service to the proprietors of the adjoining lands, a legal water course exists, providing always that the flow of water comes from some natural and reasonably constant source, and it is not due to some exceptional or unforeseeable event, e.g. a flood. (Hill v. Buffalo and Lake Huron Railway [1864], 10, Gr. Chy., 506 at page 510). The fact that a stream with generally well defined banks spreads out at certain intermediate points into something like a pond or small lake does not make the whole of it the less water course. (Per MacKennon, J.A. in re: Township of Harwich v. the Township of Raleigh [1894], 21 A.R. 677 at page 687).”

The evidence here from Mr. Akrey and Mr. Desroches and from the engineer himself would indicate that there is a water course in defined channels which may spread out at certain points. I also find from the evidence of Mr. Akrey, Mr. Desroches, Ms. Hughson, and Walter MacLeod, whom I thank for standing up at the last moment, that there have not been any changes to the water course which would not make it a natural water course. It does not matter whether there are crops grown or cattle raised around the water course. As long as the upstream owners, which abut the natural water course, only drain water from their own property, they are riparian owners and are entitled to reasonably drain into the water course without being assessed for outlet liability.

On the basis of my decision in Belzner, et al and the Town of Dunnville on the Suter drain I find that the engineer should not have assessed the upstream owners for outlet liability.

I feel that the appellants have “lucked into” this situation. The ground of appeal on which the report is set aside was not put forward until the commencement of this hearing. It is a valid ground to set the report aside. Mr. Swain was not at a disadvantage given my decision on the Suter drain.

Mr. Kuntze, on the other hand, was placed at a severe disadvantage. He was aware of the decision in the Suter drain, but the grounds of appeal advance in the Suter drain were not advanced in this case until this morning. If they had of been, Mr. Kuntze could have gone to the Township council and asked them to refer the report back. He was not given this opportunity nor was the council. I have sympathy for Mr. Kuntze in this matter and he is not to be faulted. This report was prepared prior to the decision in the Suter drain. He did not know, based on the pleadings by the appellants in this matter, that this issue of assessment of upstream riparian owners for outlet liability would be raised. He had the right to rely on the grounds of appeal that were being advanced.

For the reasons I’ve stated foregoing the appeal will succeed and the report of Mr. Kuntze dated March 8, 1991 will be set aside.

This decision is without prejudice to Mr. Schmid to bring an action in damages against Mrs. Saarony for interfering with the natural water course downstream from his property. I make no finding as to the fault between Mr. Schmid or Mrs. Saarony in regard to their conduct. It is my strongly held view that an action between the two of them should resolve the matter. However, Mr. Schmid may, again, bring a Petition for drainage. I would suggest that my comments in regard to the area requiring drainage and who may be assessed for outlet liability be taken into account if any new petition is brought forward.

I have heard from the appellants and counsel for the Township of Mariposa in regard to costs.

Although the appellants have succeeded I feel that costs should be awarded against the appellants given the dilatory conduct in filing their amended Statement of Claim and putting the respondent, its counsel, and engineer at a disadvantage. I do not think that the appellant, Douglas E. Fish, should have to pay any costs given the nature of his claim and he will only be responsible for his own costs. Mrs. Saarony has been responsible in the most part for putting forward the grounds of appeal although I have no doubt she has consulted on a regular basis with the other appellants. She has the most to gain perhaps by the setting aside of the report. The other appellants have not gained as much.

I do not think an award of solicitor and client costs is warranted. I am prepared to fix costs rather than have them taxed. I fix the following costs: Mrs. Zehava Saarony $500.00; R. Hodgson $250.00; W. & J. MacLeod $250.00; N. & E. Crowder and P. & S. Hughson $250.00; L. & M. Desroches $250.00; F. Akrey $250.00. These costs are to be paid to the Township of Mariposa within 90 days of today’s date or the costs may be collected by adding them to the appellants’ tax bills on their properties. All other costs incurred by the Township to today’s date are to be paid out of the general funds of the Township. That included the engineering costs and the legal costs and all other costs relative to this drain.

R.T. Johnston Drainage Referee

DATED: March 1, 1993