ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Evanturel (Township) v. McLean

1995 ONDR 3

DATE OF DECISION:

1995-01-25

1995-03

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF EVANTUREL

APPELLANT

AND

BRIAN MCLEAN AND CAROL MCLEAN

RESPONDENTS

APPEARANCES:

FOR THE APPELLANTS SERGE HAMEL OF KEMP, MAILLE & HAMEL, NEW LISKEARD, ONTARIO

FOR THE RESPONDENTS ROB GORDON

REASONS

The Appellant Township applied for an Order pursuant to Section 106 (1) (a) of the Drainage Act, R.S.O. 1990 Chap. 119 to have an obstruction removed from the No. 4 Municipal Drain. The Respondent admitted that he had placed the earthen dam in the Municipal Drain but stated he had done so to draw attention to the erosion problem which he claimed was already adversely affecting his property.

The Municipal Drain had been constructed pursuant to a Report dated 1971-1972. A large watershed of excellent farmland was drained by the No. 4 Drain outletting into the Blanche River. The No. 4 Drain was part of a large project covering thousands of acres which involved over 7 drainage ditches and 16 road ditches. The initiating municipality was Evanturel but the No. 4 Drain proceeded through part of Ingram, an unorganized township, to its outlet. The Respondents live in Ingram Township and the downstream portion of the drain was located along the lower boundary of their farm being Lot 1 Concession 111, Ingram Township. The Respondents owned all of the land north of the Drain and bordering the Drain from the Boundary Line Road between the Townships and the outlet in Blanche River to the east. Only 1600 feet of the Drain extended into Ingram Township at the downstream end, but it emptied into a substantial ditch which had the appearance of a natural watercourse and which in turn carried the flow to the Blanche River.

This portion of the ditch beyond the official drain also extended along the south boundary of the Respondents’ farm being Lot 2 Concession 111.

Mr. LaCarte, the Clerk of the Township of Evanturel, stated that in May of 1994 he received information that Mr. McLean had blocked the No. 4 Drain immediately east of the Boundary Road (which ran north and south) in Ingram Township. Severe flooding, he explained, was averted when an upstream farmer removed a road entrance to his lands in the Boundary Road ditch north of the No. 4 Drain, which action allowed the water to be diverted south along the Township Road ditch to another drainage ditch which extended east parallel to the No. 4 Drain. This drainage ditch further to the south also extended to the Blanche River. However, he explained while it relieved severe flooding it still left several feet of water in the No. 4 Drain which farmers in Evanturel Township believed would freeze and break their tile drains as cold weather set in.

The Clerk further advised that he had visited Mr. McLean and requested that he remove the obstruction and had more recently sent a registered letter requesting the removal, but to no avail. He also stated that several neighbours complained about wet basements which they attributed to the flooding.

Douglas Inglis, a farmer in Evanturel Township, whose farm is still registered in his father’s name, and which farm is immediately upstream of the Boundary Road, explained that they had 40 acres of cement tile which was very susceptible to breakage if frozen and that the cost of replacement would amount to $500.00 per acre. He further stated that he feared that an additional 120 acres of plastic tile might become fully or partially filled with sediment if the outlets remained under water for any length of time. Mr. Inglis also expressed concern about the impact the high water table might have on his recently planted Trefoil Legume.

Don Elliott, the Road Superintendent for the Township of Evanturel, advised that the integrity of the Boundary Road was threatened by the blockage of the No. 4 Drain. Accordingly it presented a safety hazard to the public and significant cost burden to the Township, if it washed out.

Victor Praskey, P.Eng. a Drainage Engineer of considerable experience, was called by the Appellants. He advised that the No. 4 Drain crossed under the Boundary Road, through two 48” culverts and proceeded for 1600 feet into Ingram Township. Mr. Praskey had been involved in the preparation of the original Drainage Report and he stated that the ditch was cleared and deepened for an additional 200 feet beyond the designed outlet.

He stated that at the time of construction, in his opinion, the outlet had been sufficient and that there was as much erosion then as is presently apparent. He stated that the presence of large trees 30-35 years old in the bottom of the gulley (downstream of the Drain) standing upright, indicated that most of the erosion was high on the banks. He believed that much of the high bank erosion was caused by the freeze and thaw cycle.

Mr. Praskey pointed out that the 1967 “ARDA MICRO DRAINAGE STUDY MAP” illustrated several watercourses on the Respondents’ property which drained south into the ditch extension and the No. 4 Drain.

Mr. Pratskey concluded by stating that the depth of the outlet ditch had not changed much since construction and that the type of erosion was typical of the entire area. He suggested that filter cloth might help to prevent high bank erosion of the type evident downstream of the outlet.

Ed McLean, the father of the Respondent, Brian McLean, was called as the first witness by Counsel for the Respondents. He advised that he had at one time owned the south half of Lot 1 Con. 111, Evanturel Twp. as well as the north half of Lot 1 Con. 111 and the Southwest one-quarter of Lot 2 Con. 111 Ingram Twp. He was, he stated, well acquainted with the drains during their construction period and advised that he had only one complaint regarding construction in Ingram Township, namely a minor diversion in the channel of the drain made to avoid a cluster of trees located on the south side. The diversion resulted in an encroachment toward the roadway used by the Respondent along the north side of the Drain. In subsequent years, erosion at this point further threatened the roadway causing the Respondent to expend truckloads of fill to preserve the roadway. Mr. McLean expressed concern about the ownership of that roadway stating that an old map dated 1931 indicated municipal ownership.

Mr. McLean advised that in October of 1993, he attended an Evanturel Council Meeting and expressed concern about erosion occurring on his property in Ingram Township. He stated that he told Council members that if they did not deal with the problem he would block the Drain. They never responded so, as a result, Mr. McLean blocked the Drain in May of 1994.

Mr. McLean swore that the size of the ditch adjacent to Lot 2 Con. 111 and downstream of the No. 4 Drain outlet had doubled since 1961. The present depth he measured at about 100 feet. the bank he stated had collapsed since 1984 by more than the width of a tractor. Mr. McLean explained that he had used his bulldozer to fill in washouts along the bank and had in the process utilized many truckloads of fill.

Mr. Sid VanderVeen, representing the Ministry of Agriculture, Food & Rural Affairs, explained that the Ministry had a programme in place for the construction of drains in unorganized townships. It required all land owners who owned land used by the drain to petition. The Ministry would appoint a drainage engineer to provide a report which, if approved by the owners, would be the basis for the subsequent construction work. The owners of the adjacent lands were required to pay 20% of the cost (in advance) and the Ministry provided the balance namely 80% as a grant.

The Referee, in the course of the Hearing, adjourned to take a view of the site and made certain observations which are attached hereto as “Statement of Ontario Drainage Referee”. The Referee, while taking a view of the site observed that the highly improved and therefore more valuable farm lands were located upstream of the dam while the land downstream consisted first of less valuable pasture land and finally of bush. The area of greatest erosion was in the bush, except for several small cleared fields. It was also immediately apparent that with severe winter weather conditions about to grip the area at any moment, immediate action had to be taken to remove the dam and allow the upstream water levels to abate or severe damage would be caused by the freezing of the water filling the drainage tile. Also the earthen dam would freeze solid making its removal before spring very difficult. Further it was obvious that in the spring, serious flooding and washouts would inevitably occur if the dam was not removed. Indirect damages in the nature of flooded basements and crop loss could also occur if action was not taken.

Consequently, the Drainage Referee had little difficulty in deciding to grant an immediate order to have the dam removed. The matter of erosion in Ingram Township which was of great concern to the Appellants also required consideration. It appeared in those areas on the McLean property where open ditches from the north caused erosion at the point where they emptied into the Drain that simple rip rap protection would prove inadequate.

Further downstream the high bank erosion presented a more difficult challenge, both in terms of the correct remedy and the cost benefit considerations. A serious assessment of these matters was called for and the Referee therefore decided that an Engineering Report was required. It was therefore ordered that the Township of Evanturel have one prepared at the cost of the owners in the No. 4 Drain. It is expected that the use of flow control devices might be explored provided they are cost beneficial. It was noted that the presence of considerable shrubbery in the upstream end of the Drain in Ingram Township already provides natural flow control without apparent flooding. Further the Report ought to consider the feasibility of negotiations with the proper authorities in the Ministry of Agriculture, Food and Rural Affairs with a view to utilizing Ministry funds to assist in the work in the unorganized Township of Ingram. The Court also is of the opinion that the Report ought to be moderate in both its scope and cost.

Finally, the Referee decided that a further hearing of this matter ought to be available to either party upon application to deal with the recommendations in the Report and with other matters arising if its implementation could not be effected by consent. At that time, the issue of costs will also be dealt with and the conduct of the parties in efforts to reach an equitable settlement will be addressed. In conclusion, the Referee wishes to put on record his belief that the major difficulty in this matter arose, not from the unwillingness of the parties to co-operate in the application of the provisions of the Drainage Act, but rather because of the difficulty arising from the jurisdictional uncertainty with respect to the application of the Act in an unorganized Township. It therefore must be clearly established that the initiating Township had or has the authority and indeed the obligation in circumstances such as arose in this instance to continue a drainage works beyond the limits of the Township (Section 20) and to extend the drain, maintain and repair it without a petition (Section 78) pursuant to the provisions of the Drainage Act.

Section 74 of the Drainage Act defines the duty of repair assigned to each local municipality. Common sense would dictate that the drafters of the provision when referring to a “local municipality” contemplated an organized local municipality. In the absence of an organized local municipality such as is presented in this matter, the duty must fall back on the initiating municipality to have the repair work done pursuant to its by-law.

DATED January 25, 1995

Delbert A. O’Brien, Q.C.

Ontario Drainage Referee

STATEMENT OF ONTARIO DRAINAGE REFEREE PURSUANT TO SECTION 114 OF THE DRAINAGE ACT, R.S.O. 1990 C. D17

On the 19th day of December 1994, at the request of the Respondents and with the consent of the Appellant, the Hearing which had commenced at 2:00 p.m. in the Court House, Haileybury, Ontario, was adjourned to permit a view of the No. 4 Municipal Drain. Legal Counsel for the Respondent and the Appellants attended together with a representative of the Ministry of Agriculture, Food and Rural Affairs. Weather conditions were not ideal because of snow which covered the ground to a depth of approximately one foot and because of ice which covered any open water. Daylight was also a limiting factor and by 5 p.m. it was dark.

The view commenced at the intersection of the No. 4 Drain and the Boundary Road between the Townships of Evanturel and Ingram. Immediately upstream one could observe a well-developed large level agricultural area suitable for cash cropping. Several owners of these upstream properties pointed out the outlets of their tile drains, some of which were of cement construction. These drain outlets emptied into the open No. 4 Drain channel upstream of the Boundary Road. It was apparent that the outlets were covered with water and serious breakage might occur if the tile drains continued to remain full of water as weather conditions deteriorated.

At the road the open No. 4 channel appeared to be approximately 4-5 feet deep with a top width of approximately 15-20 feet. Immediately downstream of the road was an earthen dam blocking the flow of the No. 4 Drain completely. We proceeded downstream from the road toward the outlet in the Blanche River. We observed a straight open channel which appeared to have been constructed at one time.

In this area the land on either side of the ditch consisted of open fields which appeared to be used as pasture land. The ditch which slowly enlarged as we proceeded east was full of small tress and shrubs.

At several spots erosion of the ditch banks was evident but it appeared to only be serious at several points where ditches from the adjacent fields directed flow into the main ditch. I made the observation that such erosion could be controlled by rip rap measures.

As we proceeded east the ditch rapidly enlarged and the open field on either side gave way to bush. The nature of the soil could not be observed but it was described as consisting of fine sand. The remaining 1\2 of the distance to the Blanche River proceeded through bush with only several small open fields on the north side. The ditch became what appeared to be more like a natural watercourse with a depth reaching 60-100 feet and a top width of several hundred feet. The vegetation in the ditch (gulley) was extensive, including trees growing near the bottom of the ditch, with a butt diameter of at least 20 inches.

The upper slopes were seriously eroding in this bush area affecting some limited agricultural land in the small cleared field owned by the Respondents. I observed that in this downstream area erosion control measures might not be cost beneficial. We proceeded to within 150 yards of the Blanche River before further progress was completely obstructed by natural barriers.

I conclude, based on my observations, that costly damage would occur if water was allowed to freeze in the upstream tile systems. Such an event was inevitable unless a decision was made to immediately remove the obstructing dam.

DATED January 25, 1995

Delbert A. O’Brien, Q.C.

Ontario Drainage Referee