Alfred (Township) v. Messih, 1995 ONDR 1

Alfred (Township) v. Messih

1995 ONDR 1

DATE OF DECISION:

1995-12-15

1995-01

Drainage Act

BETWEEN:

AND

DECISION

Application was made by way of Motion returnable on the 20th day of December 1994 by the Township of Alfred at the Court House, L'Original, for an Order

"Directing the Appellant, the Corporation of the Township of Alfred, to proceed forthwith with the required maintenance of the 'Constantineau Drain' in the Township of Alfred"

The matter was adjourned on that day by the Court Registrar to the 20th day of January 1995 for a Hearing. At 10:00 a.m. on the 20th day of January 1995, all Parties being present, the matter proceeded.

Mr. Gelinas called as his first witness the Clerk‑Treasurer of the Township, Diane Thauvette. She advised that on February 28, 1994, the Respondent, Serge Leduc, had requested that the Township of Alfred proceed with the maintenance of the Constantineau Municipal Drain which Drain had been established in 1973 by Township By‑Law No. 981. The Township Council, by Resolution No. 122/94 dated the 28th day of February 1994, referred the issue to the Drainage Superintendent for the Township, namely Michel St.Jean.

The Drainage Superintendent sent out a letter dated April 25 1995 to all property owners including both Respondents which letter advised them of the proposed maintenance and of a proposed survey of the Drain which would be performed to ascertain the level of maintenance deemed necessary. The said survey was conducted on the first and third days of June, 1994. The Drainage Superintendent sent a letter to all property owners, including the Respondents, advising them of a meeting to discuss the proposed maintenance. The said meeting was held on the 14th day of July 1994 at the Township of Alfred Municipal Office.

The Respondent, Abdel‑Messih, attended at that meeting and expressed his objection to the project. However, the Council of the Township of Alfred on July 25, 1994, passed By‑Law No. 26/94 authorizing the maintenance work. On July 26 1994, Mr. Michel St-Jean followed up with a letter addressed to all property owners advising them that the maintenance work would commence in late August or early September 1994. This letter also included an assessment schedule estimating the cost to each owner and a map illustrating the area of proposed work on the Drain.

Maintenance work commenced on the Constantineau Drain in the week of August 29 1994 at the downstream section and continued upstream to a point where the Township Road (Concession Road County Road No. 15) intersects the Drain adjacent to the property of the Respondent, Abdel‑Messih. The evidence indicated that both the Contractor and the Drainage Superintendent had telephone conversations with Abdel‑Messih in which he stated that the Respondent did not want the work to proceed on his property, at least until a further meeting was held to consider alternatives.

Mr. Abdel‑Messih had, on the 25th day of July 1994, sent a letter to the Township requesting that the Drain be abandoned and requesting that no work be done on his land. The meeting requested by Mr Abdel‑Messih was held on his farm with both Mr. Pommainville (local Agricultural Representative) and Mr. St‑Jean attending. The issue of abandonment was discussed as were alternative outlets for the upstream owner, Mr.Leduc, and Mr. Abdel‑Messih was advised that a new Engineering Report would be required involving considerable increased cost. No resolution of the issues was reached with the result that the contractor had to stop work and procedures for abandonment were pursued by the Township. As required by the Drainage Act, the other owners on the Drain were notified of Mr. Abdel‑Messih's request for abandonment and the upstream owner, Serge Leduc, filed an objection dated September 19 1994. The Township then, as required by Section 84 (3) of the Drainage Act, appointed an Engineer to consider the matter of abandonment by Resolution No. 376/94 on September 26 1994.

McNeely Engineering Consultants Ltd., thus having been appointed by the Township, held an on‑site meeting on November 3 1994. The proceedings of that on‑site meeting were recorded by Phil A. McNeely, P.Eng. and attached to a letter directed to the Township of Alfred, dated November 7 1994. Attending at that meeting were Jean‑Claude Trottier, Reeve; Abdel‑Messih, Owner; Serge Leduc, Owner; Claude Taillon of McNeely Engineering and Phil McNeely.

At that meeting Mr. McNeely arrived at the following conclusions:

(a) the abandonment application of Abdel‑Messih failed because Section 84 (1) of the Act required the consent of 3/4 of the land owners owning 3/4 of the land. Both conditions must exist and in this case, because only two owners were involved, the consent of more than one was necessary if the Drain was to be abandoned;

(b) McNeely concluded that field observations disclosed that no low cost alternative outlet was available to the Serge Leduc lands;

(c) the Municipality was compelled to perform maintenance on the Constantineau Drain or be liable in damages for injury sustained by assessed property owners and the Drain "urgently required maintenance"•

(d) Serge Leduc urgently required outlet for his tile drains;

(e) Mr. Abdel‑Messih could request an alternative outlet be considered pursuant to Section 78 of the Act if he was willing to accept most of the cost;

(f) The erosion and slumping of lands on the Abdel Messih property along the Drain was not significant.

Council, after receiving the Report of McNeely Engineering proceeded to adopt a Resolution No. 435/94 on November 8 1994 authorizing the Drainage Superintendent to proceed with the maintenance. The Respondent, Abdel‑Messih, was notified of Council's intention by registered mail and he responded by forwarding a letter dated November 16 1994 to the Township stating

"hold any action in this regard to this subject until a Tribunal and court decision has been reached".

The letter raised several other matters, most of which had been considered in the McNeely Report.

Mr. St‑Jean in conversation with the Ontario Provincial Police ascertained that the Police preferred a Court Order authorizing entry before they intervened. On November 18 and 21, the Township Office received from Mr. Abdel‑Messih a letter through his solicitor, Mervet Cook, requesting that the matter be referred to the Ontario Drainage Referee. The Township solicitor, Mr. JeanClaude A. Gelinas, therefore filed a Motion dated December 9 1994 with the Referee requesting the matter be heard on the 20th day of December 1994 in the Court House, L'Original.

Mr. St‑Jean, a civil engineering technologist with many years of experience in drainage and who was currently the Drainage Superintendent for the Township, was called by Mr. Gelinas as his second witness. He introduced the drainage map attached to the 1973 By‑Law which established the municipal drain known as the "Constantineau Drain". He explained that although there were 100 owners on the drain only 8 owners were physically affected by this work. The Drain had a grade of only .06 inches per hundred feet and having not been maintained since 1973 was in serious need of a cleanout. The upstream owner, Mr. Leduc, having recently installed tile drainage did not have adequate outlet and had accordingly requested the cleanout. Mr. St‑Jean surveyed the Drain and determined that about 2 feet of silt had to be removed to restore the original profile and several culverts had to be replaced with some rip rap protection.

He explained that when Mr. Abdel‑Messih attended the first meeting on July 14 1994 in the Township Office that he alone objected to the work. He said that Mr. Abdel‑Messih denied the existence of the Drain because it was not registered on his title. Mr. St‑Jean advised the Respondent to contact Mr. Sid Vanderveen in the Toronto office of the Ministry for further information.

Mr. St‑Jean confirmed the receipt of a fax at the Township Office dated July 25 1994 from Mr. Abdel Messih requesting that all cleaning work stop on his land and requesting documentation. Also, a second fax dated August 25 1994 was received at the Township Office from Abdel‑Messih addressed to Mr. St.‑Jean requesting a meeting with the Agricultural Representative, Mr. Pommainville and Mrs. St‑Jean.

A meeting was held shortly thereafter on site with the Respondent, Mr. Pommainville and the Drainage Superintendent. The issue of alternative outlets for Mr. Leduc's tile drains was considered. Mr. Abdel‑Messih suggested the water be taken southeast to Branch No. 1 of the Constantineau Drain. Mr. St‑Jean replied that such an alternative was impossible from an engineering perspective because the ditch bottom on Branch No. 1 was 8' higher than the ditch bottom at the Leduc tile outlet as illustrated by the drainage design profile. The second alternative proposed of taking the water northeast to the Mutual Drain running northeast between the West and East halves of Concession 3 was considered. Mr. St‑Jean again pointed out that because the ditch bottom of the Mutual Drain was at the same elevation (approximately 1000 feet distant) that sufficient grade could not be achieved unless the Mutual Drain was deepened by 8.5 to 9 feet ‑ that would prove impractical. The third alternative, namely taking the water to the St Andre' Municipal Drain was not possible without an entirely new drainage report prepared by a drainage engineer. A further hurdle was the fact that the last alternative directed the flow from one watershed to another, a process not permitted by Common Law and therefore a measure to be avoided if at all possible.

The issue of abandonment of the Abdel‑Messih portion of the Drain was also discussed and Mr. St‑Jean advised it would be costly, involving a Report of a drainage engineer. In the final analysis, no resolution of Mr. Abdel‑Messih's concerns was achieved.

Mr. Serge Leduc appeared and presented evidence as the upstream owner. He advised that he had recently tile drained a substantial acreage into the Constantineau Drain. The engineering firm that had completed the work for him advised him that the proper and best outlet was in the municipal drain. Currently, his tile drain outlets were under water in times of flood because the Constantineau Drain was in need of a cleanout. Finally, he advised that he had no other feasible outlet and that he was not a party to the Mutual Drain previously referred to. Last spring he advised he was unable to seed the field he had recently tile drained because of excess moisture.

Mr. Abdel‑Messih presented his evidence on the second day of the Hearing. He advised that he purchased the farm in 1991 and that there was no evidence on title of a registered municipal drain. He further stated that the previous owner had provided a declaration at the time of purchase stating there were no easements, etc. affecting the property. He stated that his first encounter with the drain was when he discovered red pickets in his field which caused him to telephone the Municipality. He denied having received the letter sent out by Mr. St‑Jean dated the 25th day of April, 1994. He asked the municipality for documentation on the drain and later received a letter from Mr. St‑Jean dated June 27 1994 inviting him to a meeting to be held July 14 1994. At that meeting he said he requested further documentation as to the existence of the municipal drain. He admitted that Mr. St‑Jean had a small map outlining the course of the Drain but he could not recall seeing the large map or the Report which Mr. St‑Jean testified were both present at the meeting. Mr. Abdel‑Messih agreed that Mr. St‑Jean had advised him he could get copies of the drainage documents from the Drainage Engineer in Hawkesbury.

Mr. Abdel‑Messih advised the Referee that he had a natural spring on his property and he was fearful that the municipal drain might cause it to be polluted. He further stated that he was concerned with the erosion occurring on his land along the course of the Drain.

Under cross‑examination, Mr. Abdel‑Messih declared he was a certified Agricultural Specialist with knowledge of engineers and drainage, the latter experience was particular to his native country. He agreed that he had discussed the issue with Mr. Pommainville, the Agricultural Representative and Mr. Sid Vanderveen of the Ministry. He stated that the first letter he received concerning the Drain was from the Ontario Provincial Police who sent him the letter dated April 25, 1994 from the Municipality. Mr. Abdel‑Messih in reply to Mr.Gelinas' questions admitted the Municipal Drain was running full during flood times. He concluded by stating that he wished that the municipality had provided him with full documentation about the Drain. e.g. map, reports, by‑laws etc. at an earlier stage of the proceedings. He did not deny that he sent a letter dated August 25 1994 requesting the Drain be abandoned and a letter sent July 25 demanding that work stop.

The Drainage Referee having heard the evidence came to the following conclusion with respect to the facts.

(a) The Constantineau Drain was a municipal drain established by By‑Law No. 982 of the Township of Alfred and that it affected the lands of both Respondents with respect to its benefits and burdens

(b) That the drain was in need of maintenance and Serge Leduc had requested the same

(c) That the Municipality had followed the usual procedures in complying with Mr. Leduc's request and Mr. Abdel‑Messih had adequate notice of their intentions and actions.

(d) The Township Staff, including the Drainage Superintendent, has been courteous at all times with Mr. Abdel‑Messih providing him with sources of information such as Sid Vanderveen at the Ministry and the Hawkesbury Engineering firm which had prepared the Report.

(e) The Drainage Superintendent had met in the field with the Agricultural Representative, Mr. Pommainville to seek solutions and had terminated work in an effort to avoid a confrontation.

(f) The appointment of McNeely Engineering was timely and properly chosen being fully at arms length from the controversy.

(g) The professional observations of Mr. McNeely supported those of Mr. St‑Jean in finding

(i) the alternative proposed by Mr. Abdel‑Messih as outlets for Mr. Serge Leduc were either impossible in engineering terms, (Branch 1) or impractical, both from an engineering and a cost consideration perspective (Mutual Drain or St. Andre' Municipal Drain)

(ii) the alleged erosion concern was of limited consequence

(iii) the least costly solution was the cleaning of the Constantineau Drain

(iv) that only two owners were affected by that portion of the Constantineau Drain sought to be abandoned.

and I have no difficulty particularly in the absence of any professional evidence to the contrary in accepting his conclusions.

(h) I am satisfied that the Constantineau Drain does not present a pollution problem to Mr. Abdel‑Messih who, having chosen to live in the country, must know that open drainage ditches are not normally totally free of animal waste.

(i) Mr. Abdel‑Messih has special training in agriculture and his skills in language and communication were evident at the Hearing so that he ought not to have had any difficulty in understanding the procedures, benefits and obligations arising from a municipal drain project.

(j) Mr. Abdel‑Messih did not volunteer to pay the costs or a substantial portion of the cost of constructing any alternative outlet.

Having heard the submissions of the Parties in this matter, I have come to the following conclusion of law:

(1) Mr. Serge Leduc, the upstream owner, has a right to have the drain cleaned pursuant to Section 74 of the Drainage act and the Municipality is liable for damages if it fails to act (Note Section 79). Both provisions are clearly set forth in the Drainage Act and are matters of settled law. The Respondent ought to have sought proper legal advice, heeded it and not put his neighbours and the Municipality to the cost and trouble of contesting both issues.

(2) The abandonment provision of the Drainage Act, Section 84, establishes two criteria which must both be satisfied, namely a request by (a) three‑quarters of the owners of the land assessed for benefit who (b) own three‑quarters of the land assessed (according to the last revised assessment roll). In this case only one‑half of the owners of the “part thereof” requesting abandonment signed the request and therefore it must fail.

(3) There is no legal requirement in law nor any custom established in municipal drainage procedure compelling a municipality to register a drainage by‑law or report against the title of the lands affected.

It should be noted that Section 84 of the Drainage Act requires unanimous consent. If one owner files an objection, a report from an engineer is required and that report must recommend abandonment before a Municipality can proceed to abandon a municipal drain.

It is, of course, the obligation of a neutral Engineer in such circumstances to protect the interests of any minority owner who would be adversely affected by such action. In this case, Mr. McNeely correctly concluded that the upstream owner, Serge Leduc, had an established right of outlet in the Drain and accordingly so recommended. Mr. Serge Leduc had no option but to file an objection to preserve his drainage rights ‑ the cost of the engineering report flows directly from the request for abandonment.

Having come to the aforementioned conclusion of law and fact and after a full Hearing in which all Parties had an opportunity to present evidence and make submissions, I have no difficulty in ordering that the Township of Alfred proceed forthwith with the cleaning and repair of the Constantineau Municipal Drain.

I Further Order that the Respondent, Abdel‑Messih refrain from interfering or obstructing the work.

I will reserve my decision with respect to assessment of costs until such time as the work is completed and the conduct of the Parties in complying with this Order, or otherwise, will be taken into account in that assessment. It will be open to either Party to apply for such an assessment after the work is duly completed.

DATED: February 16 1995

DELBERT A. O'BRIEN, Q.C.

Ontario Drainage Referee

DECISION

Appearances:

Jean-Claude Gelinas, B.A., LLB.,

Counsel for the Township of Alfred

Abdel-Messih, appeared personally

Serge Leduc, appeared personally

An Application having been made by the Township of Alfred dated the l2th day of September l995 for an assessment of costs in this matter, pursuant to an Order previously made by the Drainage Referee dated the 3rd day of February l995, which Order provided amongst other things that "This Court further Orders that the assessment of and liability for costs be and is hereby reserved until such time as the work aforesaid is completed and that either party may apply to this Court for an assessment of costs at that time".

On the l6th day of October, l995, at l0:00 o'clock in the forenoon, all Parties being present, the assessment of costs proceeded.

Mr. Gelinas, acting for the Township called as his first witness the Clerk Treasurer of the Township, Diane Thauvette. She advised that the maintenance work on the Constantineau Drain was completed and all costs had been compiled by the Township. She identified the cost in a statement of account for the Constantineau Drain, which was filed as an Exhibit. The statement outlined the costs as follows:

Professional legal costs of Jean-Claude A. Gelinas amounted to $5445.79;

The professional engineering fees of McNeely Engineering Consultants Ltd amounted to $5l5.99;

The fees of the Drainage Superintendent, Michel St-Jean amounted to $l,089.48;

The construction fees amounted to $l0,542.l7; and

The cost of the Municipal Clerk attending amounted to $l74.00.

Mr. Gelinas advised that the above mentioned costs, aside from the construction costs were extra administration expenses incurred as a result of the conduct of the Respondent, Abdel-Messih, The extra costs related to his obstruction of the construction work, his request for abandonment of the McNeely Engineering Report and finally the hearings of the Drainage Referee. He therefore requested that these extra administrative expenses be assessed against the property of Abdel-Messih and collected in like manner as real property taxes as permitted under the Drainage Act.

Mr. Abdel-Messih spoke on his own behalf and advised the Referee that as a result of the construction work his property had been left in a mess. He advised that lateral ditches draining into the Constantineau Municipal Drain had been damaged, particularly the culverts. He further stated that the spoil from the ditch had been unevenly spread on his property and that it contained considerable debris, stones, etc. Mr. Abdel-Messih also expressed some concern over quality of rip rap around some of the culverts in the drain on his property. He advised that damage had been done to his fences as a result of the construction. Finally, he complained about damage done to the lateral tile drainage outlets, also as a result of the construction. He concluded by saying that apart from the above mentioned matters he had no other complaints about the drain which appeared to be functioning quite well.

Mr. Leduc advised the Referee that the Drain was functioning very well, that the construction work had been on the drain at a time when the soil was moisture laden, but he was satisfied with the final result. In his opinion the fences had been restored to their original standard.

The Drainage Referee attempted to take a view on site of the completed drainage works, but found that weather conditions did not permit adequate observation. Accordingly, arrangements were made on a consent basis between the parties, to have the Drainage Superintendent, Michel St-Jean, in conjunction with Mr. Pommainville of the Ministry of Agriculture, conduct an examination of the completed drainage works. The objective of the investigation was to ascertain whether or not Mr. Abdel-Messih had suffered damages to his property above what would normally be expected during the course of municipal drainage maintenance work. A report was completed and filed with the Drainage Engineer, a copy of which is attached hereto. The report was dated October 27 l995.

The Drainage Referee is satisfied with the Report which indicates that Mr. Abdel-Messih did not suffer any abnormal damages as a result of the construction. Accordingly, the matter of whether or not Mr. Abdel-Messih suffered undue damage during the course of construction to his property will not be a factor in the assessment of costs.

The conduct of Mr. Abdel-Messih in co-operating with the construction work subsequent to the Hearing on January 20 l995 will be considered as I indicated it would in my decision of February l6 l995. But for the subsequent co-operation of the Respondent, Abdel-Messih, I would have been inclined to assess a much greater portion of the extra administration cost. Normally the administration costs in a normal maintenance undertaking are insignificant, but in this particular case, they amounted to over one-third of the costs of the total work, marking this particular project as being grossly abnormal. In the circumstances therefore I order that costs be assessed against the property of Mr. Abdel-Messih in the fixed amount of $2,000.00 which costs are to be collected in like manner as real property taxes and which may be collected pursuant to the provisions of Section 6l subsection 4 of the Drainage Act, R.S.O. l990, Chapter D-l7.

DATED: December l5 l995

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee