ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Balvert v. Colchester South (Township)
1995 ONDR 2
DATE OF DECISION:
1995-07-12
1995-02
STATUTE:
Drainage Act
HEARING:
BETWEEN:
JOHN BALVERT
APPLICANTS
-AND-
THE CORPORATION OF THE TOWNSHIP OF COLCHESTER SOUTH
RESPONDENT
REASONS FOR DECISION
An application made by John Balvert was heard by the Ontario Drainage Referee on the 8th day of June 1995 in the Court House at Windsor, Ontario.
The Applicant made the application on his own behalf and on behalf of eleven other assessed owners, all of whom owned properties on Registered Plan 202 (Parts of Lots 1 and 2, Concession 2) Township of Colchester South facing King’s Highway No. 18 and assessed into the Bassett Municipal Drain.
Paul Courey, Barrister and Solicitor represented the Applicants and Elvey B. Marshall, Barrister and Solicitor, represented the Respondent Corporation of the Township of Colchester South.
The original Application, as filed, requested the following remedies:
(a) A declaration that repair and reconstruction work on the portion of the Bassett Drain, between Roseborough Road and the Richmond Drain in the Township of Colchester South in the County of Essex, was due to the negligence of the Respondent and/or its agents;
(b) A declaration that the Respondent and/or its agents are not entitled to recover against the Applicants named in Schedule “A” hereto for the cost of reconstruction to the aforementioned portions of the Bassett Drain due to the Respondent and/or its agents own negligence;
(c) An injunction restraining the Respondent from taking any steps to levy against the Applicants listed in Schedule “A” hereto for the reconstruction of the portion of the Bassett Drain between Roseborough Road and the Richmond Drain.
(d) An Order requiring the Respondent to refund all monies paid by Applicant listed in Schedule “A” hereto in regard to the reconstruction of the aforementioned portion of the Bassett Drain;
(e) An Order extending the limitation period for this matter to be brought before this Honourable Court.
However, Mr. Paul Courey, as a preliminary matter, requested that the pleadings be amended as follows:
- That the Referee make a declaration that
(a) the Municipal Corporation of the Council of Colchester South was negligent in the supervision of the drainage works conducted on the Bassett Municipal Drain pursuant to the Report prepared by G.J. Chevalier, P.Eng. of Chevalier Engineering Associates Ltd. dated the 23rd day of September 1981;
(b) the applicants suffered damages as a result of said negligence in the form of costs incurred for repairs made to said works;
(c) the Respondent Municipality be prohibited from assessing said owners for the costs of such works, including the Engineering fees and that all payments previously made by the Applicants including interest and penalties with respect to such assessments be refunded to the respective owners.
In reply to the Application made for the amendment of pleadings Mr. Marshall, on behalf of the Respondent, advised that he had received adequate notice that such an application for amendment would be made and accordingly had no objection thereto. The Referee proceeded to permit the amendment requested.
A second preliminary issue was raised by the Respondent, namely that the application had not been made within the two year period as required by Section 111 Subsection 2 of the Drainage Act. Mr. Marshall advised that the drainage works had been completed in 1982 and the final certificate granted by the engineer in July of 1983 with respect to the completion of the work. Accordingly, he submitted the Application ought to have been made within the subsequent two years so as to be within the time.
Mr. Courey replied by advising that complaints had been filed by the assessed owners at various times, including during the construction period, more particularly on February 13, 1985 a petition was presented requesting that repairs be made to the Bassett Drain. The said petition was signed by thirteen owners and further requested that the Township pay for the cost of repairs. Mr. Courey further indicated that there had been several engineering reports commissioned by Council with respect to the condition of the drain and the need for repairs, namely a Report from William J. Setterington Limited dated January 14, 1985, a Report by N.J. Peralta Engineering Limited dated March 14, 1986 and a further Report not commissioned by Council by R.L. Long Consulting Limited dated April 30, 1985. Mr. Courey stated that the repairs made by the Township, pursuant to the recommendations made in the aforesaid engineering reports were not completed until November of 1990 and assessments were not received by the owners until 1991.
Mr. Marshall replied by stating that the Respondent was prejudiced by the delay inasmuch as two drainage superintendents of the Township who had attended on the drain at various times were now deceased and therefore unavailable to give evidence. He pointed out that the proper test in the circumstances was the issue of “fairness”, what was “proper under all the circumstances” and whether there was “substantial prejudice”.
The Drainage Referee, having heard the submissions of legal counsel, determined that the application which was dated the 27th day of November 1992 was made within time. It was not until the owners received their assessments in 1991 that they were finally aware that the cost of repairs would not be borne by the Township out of general revenues, but rather would be passed on to the owners as further assessments with respect to the Drain. It was at that time that the “cause of complaint arose”.
Having disposed of the preliminary matters, the Drainage Referee proceeded with the Hearing and received much of the evidence in the form of documents filed as Exhibits by both counsel on consent. The documentary evidence indicated that the Bassett Drain was a long established municipal drain constructed along the northern side of King’s Highway No. 18 commencing at the Roseborough Road and proceeding westerly to its outlet in the Richmond Drain. It consisted of an open drain, constructed along the northern limit of the said Highway. At the upper end of the drain at the Roseborough Road, two large pipes with diameters of 21” and 24” respectively discharged upstream waters into the Bassett Drain. The open drain extended for a distance of 2,258 feet westerly to the centre line of the Richmond Drain at the downstream end. The Bassett Drain features 13 corrugated steel pipe culverts which serve as access bridges for the various owners to Highway 18 along its course.
In September of 1981 the Drainage Report which had been commissioned by the Municipality was completed by Chevalier Engineering Associates Ltd. with respect to the repair and improvement of the Bassett Drain. The Report found that “the Drain was out of repair in part due to silting and lack of brushing. It was also found that all access culverts were too high and not of sufficient size to properly drain the water flowing into the drain from the Town of Harrow and the abutting lands”. The Report went on to recommend that the Drain be “repaired, deepened and improved and that large access bridges be constructed”. In 1982, a contractor E.V.N. Contractors of Windsor, Ontario was selected and the work specified in the Chevalier Report was substantially completed by October of 1982. It appears that immediately complaints arose from the assessed land owners concerning the quality of the workmanship and a petition signed by various owners previously referred to, was presented to Council.
As a result of complaints, Council engaged the services of William J. Setterington Limited an experience drainage engineering firm, to investigate the condition of the Bassett Drain and prepare a Report for Council as to its condition making proposals with respect to any required repairs. Mr. Setterington filed his Report dated the 14th day of January 1985 with Council. William J. Setterington summarized his lengthy and thorough report with the following conclusions:
All of the 48” diameter corrugated steel pipes had been installed too low;
All of the 26 concrete filled jute bag head walls had been constructed improperly;
The side slopes are too steep along the majority of the length of the drain;
The side slopes of the drain would be unstable even at the specified slope.
The grade at the bottom of the drain as specified is beyond the normal grade requirement and therefore the depth of the drain and its top width becomes progressively excessive from the upper end of the drain westerly toward the Richardson Drain.
It would become extremely expensive and cost impractical to increase the side slopes of the drain in order that they would be stable for at least the west one-half of the Drain.
The Engineer’s Report is deficient in that it did not recognize the soil types at the site and therefore the instability of the drain banks when constructed on a slope on 1 ½ units horizontal to 1 unit vertical.
Sloughing of the drain’s side slopes will continue in the future until we reach a stable slope.
As the drain banks continue to slough in the future the length of each concrete filled jute bag headwall will become increasingly inadequate which will increase their instability.
Mr. Setterington, in his conclusion not only pointed out the deficiencies in the construction, but went further and criticized the Engineering Report provided by Chevalier Engineering in stating that the side slope design of 1 ½ to 1 was inadequate, considering the soil types involved.
A second Engineering Report was commissioned by the insurance adjuster, Mr. F.C. Maltman, which Report was dated October 30, 1985 and was prepared by R.J. Long Consulting Ltd. of Orangeville, Ontario. The Long Report observes that Chevalier’s Engineering appointment with respect to construction was limited to “staking, infrequent field review and a final inspection on or about the 20th day of October 1982”. The Report further notes that the Township Drainage Commissioner was to satisfy himself that the work was done “in a neat thorough and workmanlike manner to the full satisfaction of the commissioner in charge”. As provided in Sections 3.8 of the Specifications, the Report goes on to say that, “the Township assumed responsibility for the correction of deficiencies, the Certificate of Completion, the release of the holdback and the maintenance of the Drain during 1983”.
The Long Report further went on to specify the following inadequacies in construction:
(a) The headwalls were not crescent shaped nor properly sloped as required in the specifications;
(b) The Drain was constructed and approved by the Township Commissioner with side slopes in excess of 1 ½ to 1;
(c) Lateral Tile Drains were not connected to the Drain, as required.
The Long Report differed from the Setterington Report in that it maintained that the specifications in the Chevalier Engineering Report of 1 ½ to 1 for side slopes were adequate and sufficient for agricultural drainage.
A third drainage report was prepared by N.J. Peralta Engineering Ltd. of Kingsville which Report was dated March 14, 1986 and which Report was commissioned by the Corporation of the Township of Colchester South. This Report, like the Chevalier Report, was a Section 78 (Drainage Act) Report. The Peralta Report noted that the present deficiencies in the Bassett Drain resulted from the works performed in 1982. It further noted that there was extreme erosion and unstable banks and that the jute headwalls were in an extremely poor and unstable state. It recommended as a solution that the entire Drain be enclosed at a proposed cost of $188,481.00. The recommendations of the Peralta Report were never accepted as it appeared that all parties recognized the cost was unacceptable.
It then appears that the Municipal Corporation of the Township of Colchester South under the supervision of its drainage commissioner proceeded to make repairs, which work continued over a period of time and was completed in November of 1990. The repairs which were primarily to the headwalls cost a total of $21,025.30. The costs were then assessed to the various owners together with the cost of the Drainage Reports, namely the William Setterington Report, which cost $1,017.00 and the N.J. Peralta Report which cost $10, 150.00.
The total net cost to the Appellants, after deduction of the Provincial Grant and assessments to other owners who were not parties to this application, amount to the total sum of $10,173.21.
In addition to the documents filed, Mr. Paul Courey called as his witness John Balvert who provided the following information.
He stated that he had lived at the same location, namely R.R. #4 Harrow, Ontario since 1975. He further stated that during construction in 1982 he was on holidays at the time and therefore had time to observe the work closely. He testified that stone was not placed under the culverts as was required in the specifications set forth in the Engineering Report. He further noted that the jute bag headwalls, instead of sloping with a face of 12 inches for every four foot vertical, actually sloped in the opposite direction and the jute bag headwalls were not dug in as required. He went on to state that he observed that the lateral drains were not connected as required and the seeding of the banks was not done.
Mr. Balvert further advised that he complained constantly to Council and spoke to the Drainage Commissioner at the time who was Murray Richardson. Mr. Balvert stated that he supported the conclusions in the Setterington Report and in the R.J. Long Report. He testified that he believed that the cost of the Peralta Report was excessive and not cost beneficial.
Mr. Balvert presented photographs which illustrated that the jute cement bags had been placed improperly, namely perpendicular rather than parallel, to the culverts which they were designed to protect. The photographs showed that the headwalls were not sloped or crescent shaped as required but rather were absolutely vertical and not dug into the slopes at either side. Mr. Balvert indicated that he was satisfied with the present open drain and that the slopes had finally stabilized. He saw no advantage in a fully enclosed drain believing that the soil type would not provide for a stable buried pipe. Mr. Balvert concluded by stating that in his opinion the owners should not be assessed for the remedial work done on the drain the need for which he exclusively attributed to the failure of the Drainage Superintendent to properly supervise the construction work of E.V.N. Contractors which was done in 1982.
Mr. Marshall, solicitor for the Respondent, presented no evidence other than the documentary evidence referred to previously.
In his submissions, Mr. Courey pointed out that all three engineering reports had noted that the 1982 construction work done pursuant to the Chevalier Engineering Report was deficient and not in accordance with the recommendations of the Report. Because such work was supervised by the Drainage Commissioner, an employee of the Corporation of the Township of South Colchester, Mr. Courey argued that it constituted negligence on behalf of the Municipality. He pointed out that the Setterington Report and the Long Report were somewhat contradictory with respect to the design requirements for side slopes for agricultural land inasmuch as Long approved the 1 ½ to 1 design whereas Setterington said it was not adequate for the soil conditions that were present.
Mr. Courey pointed out that all work that was done on the Drain was remedial in nature and did not constitute any improvement to the drain. He further argued that the Setterington and the Peralta Engineering Reports were required for the purpose of remedying failures in the drain as constructed in 1982. Mr. Courey argued that because most of the work was remedial in nature, including the two Drainage Engineering Reports referred to that it should be charged to the general funds of the Municipality pursuant to Section 118, Subsection 2 rather than be assessed against the properties served by the Drain. Mr. Courey stated that a Municipality acting under the authority of a Statute must act reasonably and is liable to pay for any damages which flow from its negligence citing the case of Fewster vs. Twp of Raleigh (1894), High Court of Justice. He further went on to state that the law is somewhat confusing, particularly the older cases with respect to the issue of whether or not a Municipality is liable for damages if it follows the recommendations set forth in a professional drainage report. He reported that Ian Rogers, author of Law of Canadian Municipal Corporations state that in such a circumstance the Municipality is not liable. The case of Murphy vs. Town of Oxford 1899 (Court of Appeal) held that a Township is not so liable where it acts in good faith carrying out the plans of an Engineer. However, he referred to the Supreme Court decision of the Township of Ellice and Hiles and Crooks (1894) which established that, “where a scheme for a drainage work to be constructed under a valid by-law proves defective and the work has not been skillfully and properly performed, the Municipality constructing it is not liable to persons whose lands are damaged in consequence of such defects and improper construction, as tort feasors, but are liable under Sec 591 Municipal Act for damages done in construction of the work or consequent thereon”. (Headnote)
The facts are not in dispute. The Municipality undertook various works of improvement and repair which were completed in the summer of 1991. The headwalls have been properly repaired by the Municipality and the side slopes have sufficiently stabilized. The present condition of the drain appears to be satisfactory in the view of Mr. Balvert, speaking for the present assessed owners. Accordingly, no further work is contemplated at the present time. The only issue to be resolved is payment of the cost of repairs, which includes the cost of the Engineering Reports totaling the sum of $32,140.65.
I find that the Municipal Corporation of Colchester South assumed responsibility for the supervision of the construction work pursuant to the Chevalier Engineering Report through its employee, Mr. Richardson, the Drainage Superintendent. I further find that he was negligent in performing that duty and accordingly that damages have accrued as a result of that “improper construction and workmanship”. The Municipality is responsible for his negligence.
I further find that all of the parties listed in Exhibit 2, TAB 2 of the Record, commencing with the name Jose Liberato to and including the name of Lucien Garante are parties to this action, pursuant to Section 107, Subsection 2 of the Drainage Act and that they have a remedy under Section 118, Subsection 2 of the said Act, “Improper action, neglect, default or omission on the part of any Municipal officer or employee of the Municipality”.
I therefore find that the aforesaid assessed owners are entitled to full recovery of their share of the cost for repairs made to the Bassett Drain and assessed against them.
I also find that they are fully entitled to be fully compensated for the cost of the William J. Setterington Limited Drainage Report, which was occasioned solely for the purpose of remedial work.
I find that the N.J. Peralta Report was commissioned pursuant to Section 78 of the Drainage Act for the purpose of repairs, maintenance and also improvement. Accordingly, inasmuch as the owners have received some benefit from the Peralta Report with respect to a new design for full enclosure even though such design was not implemented. Accordingly, only 50% of the cost of that Report should be attributable to the Municipality and payable out of General Funds pursuant to Section 118, Subsection 2. The remaining 50% of the cost of that Report should be charged to the Drain and assessed out to the owners pursuant to Section 118, Subsection 1 of the said Drainage Act.
I further order that any interest or penalties assessed with respect to the Drain against the Parties to this Application be fully reimbursed to the said parties. At the time of the hearing, details were not made available to the Drainage Referee with respect to interest, penalties, etc. and accordingly if there are difficulties in the parties ascertaining the amounts to be awarded as damages and/or reimbursed to the parties, a further hearing to ascertain the exact amount of damages will be available at the request of either party on ten days’ notice.
The issue of costs was not addressed at the Hearing and was not claimed on the original application however I am awarding costs in the fixed amount in favour of the Applicant, John Balvert, to be paid by the Corporation of the Township of South Colchester in the amount of $800.00.
DATED: July 12, 1995
DELBERT A. O’BRIEN Q.C.
ONTARIO DRAINAGE REFEREE