ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Rodgers v. Guelph (Township)
1995 ONDR 4
1995-10-11
1995-04
STATUTE:
Drainage Act
HEARING:
BETWEEN:
FRANCIS D. RODGERS
APPELLANT
-AND-
TOWNSHIP OF GUELPH
RESPONDENT
REASONS FOR DECISION
The Appeal of Francis D. Rodgers of Hillside Drive, Guelph, Ontario was heard in the Court of the Ontario Drainage Referee on the 18th day of August 1995 in Guelph, Ontario.
The Appellant acted on his own behalf without the assistance of legal counsel and the Township was represented by Fiona M. McCrea of the law firm of Kearns, McKinnon.
A preliminary application had been made by the Respondent for a procedural order and the matter was heard on Friday, the 21st day of April 1995 in Court Room No. 3 in Guelph. The Respondent had indicated to the Referee that it wished to avoid further delays and inasmuch as the Appellant was not represented by legal counsel, a procedural order was required to provide particulars of the Appellant’s Reasons for Appeal and establish an agenda to have the matter proceed with dispatch to a Hearing.
The Referee attended at Guelph, after hearing submissions from both parties and an order was made on the 21st day of April 1995 providing as follows:
The Drainage Referee orders that the Appellant deliver particulars of the appeal to the Respondent and file same within twenty days hereof and that the Respondent deliver a response thereto within fifteen days thereafter;
The Drainage Referee further orders that the parties shall be entitled to examinations for discovery each of the other and to production of documents, records, etc. in possession of the parties in matters relating;
The Drainage Referee further orders that either party may then apply to the Court for a hearing;
The Drainage Referee further orders that the Respondent prepare a Record of Proceedings in the matter.
After several delays to suit the convenience of the Appellant, a trial date was finally set, namely Friday, the 18th day of August 1995 and the matter proceeded to hearing.
The Appellant’s original notice of appeal stated that the grounds for the appeal were pursuant to Section 47 of the Drainage Act being, “an application for the quashing of by-law No. 9-99-94. The Appellant further provided particulars of his Reasons for Appeal pursuant to the Order of the Drainage Referee as follows:
The Engineer in his report imposed property restrictions that he has no authority to suggest or include in his report;
In direct conflict with Common Law and the Drainage Act Section 11 the Engineer has reported benefit and outlet liability with the intent to punish property owners and benefit persons known to himself;
The Engineer has failed to comply with the Performance Guidelines for Services of the Engineer Acting Under the Drainage Act 1975;
The Engineer has violated the Professional Engineers Act Reg. 941, Section 10, Subsection 21, Item 5 at the on-site meeting;
The Drain recommended does not meet the Engineers minimum standards;
The Engineer has provided information as fact he cannot substantiate and has withheld information from earlier hearings.
The Respondent replied to the Appellant’s Particulars as follows:
The Respondent denies the allegation set out in paragraph 1 of the Appellant’s Statement of Issues. The only restriction on property use in the Engineer’s report has, ‘However, the Owners of Lot 3, Reference Plan 451 shall not build up the rest of the lot beyond its existing elevation’. This sentence was deleted by Order of the Ontario Drainage Tribunal dated June 20, 1994. There are no property restrictions in the Engineer’s report.
The Respondent denies the allegation set out in paragraph 2 of the Appellant’s Statement of Issues. The Engineer has complied with the provisions of the Drainage Act in determining the benefit and outlet liability and the assessments therefore. The Ontario Drainage Tribunal has heard an appeal of the attribution and assessments of the benefit and outlet liability and made adjustments to the assessments in its Order dated June 20, 1994. There is no appeal from the Ontario Drainage Tribunal on the issue attribution of benefit and outlet liability or the assessment therefore.
The Respondent denies the allegation set out in paragraphs 3 and 4 of the Appellant’s Statement of Issues. These allegations do not lie within the jurisdiction of the Ontario Drainage Referee. The Engineer has complied with his duties and responsibilities under the Drainage Act and under the Performance Guidelines of the Engineers Acting Under the Drainage Act 1975 and acted in good faith in the performance of his duties at all times.
The Respondent denies the allegation set out in paragraph 5 of the Appellant’s Statement of Issues. The proposed drain, as amended pursuant to the Order of the Ontario Drainage Tribunal dated June 20, 1994, addresses the requirements for drainage in the area as determined by the Engineer in accordance with the Drainage Act.
The Respondent denies the allegation set out in paragraph 6 of the Appellant’s Statement of Issues. At all times the Township has complied with the provisions of the Drainage Act.
The Respondent denies the allegation set out in paragraph 7 of the Appellant’s Statement of Issues. At all times the Engineer has complied with the requirements of the Drainage Act in the preparation of his report and in carrying out his duties thereunder.
The first witness called by the Appellant at the hearing was the Drainage Engineer, T.M. Pridham, P.Eng. who had been appointed by the Township of Guelph to prepare a Drainage Report, pursuant to a Petition for Drainage Work dated 30th day of June 1993, which was a second and revised Petition. The Drainage Report dated the 17th day of December 1993 was modest in scope, providing drainage for only 3.4 acres at a total estimated cost of $8,000.00 for the project. The small drainage basin was comprised entirely of urban subdivision lots, 10 in number, on Registered Plans 451 and 449 respectively. The subdivision was flanked on one side by Hillside Drive and the other side by Promenade Road. The outlet was into a culvert under Highway 24, the elevation of the culvert being critical as it was the only available outlet for the project. I have attached to the Decision as Appendix 1 a copy of a plan provided in the Report outlining the watershed and the originally proposed drain location. The Engineer advised that the surface flows were to the west, toward Highway No. 24 and that previously in 1974 the owners of the Cook and Rodgers properties had installed a private tile across their properties to alleviate ponding water. However, more recently, the natural surface flow had been interrupted by Mr. Baccin, the owner of Lot 3, Plan 451 when he undertook a major infilling of his lot. This action interrupted the natural flow of waters to the west causing severe ponding on the lots of upstream owners, Godin and Frangos as well as some ponding on the Ferris lot. The drainage petition therefore originated as a direct result of the action of Mr. Baccin after private efforts to resolve the problem failed. The wording on the final Petition was as follows:
“Required Drain to be installed to provide an outlet through the dammed water by Roll No. 5-137 (G. Baccin). Repeated attempts to arrange for a private solution have failed and we wish to have a drain constructed under the provisions of the Drainage Act”.
The design called for a storm sewer pipe installation because of the limited ground cover available imposed by the restricted elevation of the outlet pipe under Highway No. 24. The only inlets for the drain were two catch basins constructed immediately upstream of the Baccin property. It was apparent from the evidence given by the Drainage Engineer and from the design of the drain that the cause of the problem and the need for a statutory drain arose almost exclusively from the unneighbourly conduct of Mr. Baccin. The Drainage Engineer proceeded to indicate that of the total assessment of $7,669.00 levied against private land consisting of both benefit and liability he had assessed the Baccin property for a total of $2,469.00. The Drainage Engineer indicated that properties were to be fully restored and that the Cook and Rodgers properties were assessed for cutoff benefit only because the pipe to be installed through their properties (therefore providing no local drainage) was not perforated.
The Drainage Engineer went on to explain that Mr. Baccin and Mr. Rodgers had appealed their assessments to the Court of Revision and the Court of Revision had made no changes. Subsequently Mr. Rodgers and Mr. Baccin appealed to the Ontario Drainage Tribunal and the Tribunal reduced the Baccin assessment by some $1,750.00. The Ontario Drainage Tribunal also directed the Engineer to relocate the drain across the lots on Plan 451 as close to the southerly property line as was practical in the circumstances.
The Chairman of the Ontario Drainage Tribunal, in his Reasons stated in paragraph 2 on page 6 –
“We cannot subscribe to the reasons given by the Engineer for high assessment levied against the lands of the Appellant, Baccin. Because the water run is not a natural stream, but a mere surface water run, an owner of lands has all the legal rights to block the surface flows from flowing over his lands. This in fact is what Mr. Baccin has done. He had every legal right to do it and consequently he cannot be penalized for the consequences of his acts as he has been by the Engineer. Successive owners or other owners can also raise their lands in a similar manner. It is true that the problem is there. It is true that the drainage works are being provided to address and solve that problem. However, it is not right to assess the Baccin lands in any other manner or on any other principles than assessing the other lands in the subdivision. His assessment, as the assessment of all other land owners, must be based on the benefits that the lands of the owners derive directly from the construction of the drainage works”.
The Drainage Engineer went on to say that after the site meeting, he had decided that a private drain would be more cost effective and practical in the circumstances. To pursue that purpose he wrote a letter (Exhibit 11, dated the 12th day of May 1992) to one of the owners, George Mooney. In that letter he proposed the type of sizing of tile that would be required to give a 1” in 24 hour run-off co-efficient. He further indicated the grade that would be necessary and the approximate route the drain should follow to get the necessary cover. A simple design plan was enclosed and the length of drain required, etc. The letter also disclosed that the Engineer had discussed the approximate costs with a Drainage Contractor and determined it to be roughly $2,500.00.
In that letter the Engineer indicated that he would be willing to assist if the parties could reach a private cost sharing agreement and in that event there would be no costs for his services.
Mr. Pridham, in his testimony advised that when it became obvious that the parties could not reach a private agreement, a new revised petition was signed and a site meeting set for the 28th day of July 1993. Members of Council were present at the site meeting, including the Reeve and Mr. Rodgers. Mr. Pridham indicated that the actions of Mr. Baccin were very controversial as the neighbours took exception to his unneighbourly conduct, which they described as being the sole cause of the problem.
The Engineer introduced photos taken in March of 1994 showing the Baccin property on which was located a very large newly constructed residence. The pictures indicated that the Baccin lot had been substantially raised with fill and clearly illustrated extensive flooding on the upstream lots owned by Frangos and Godin.
The Drainage Engineer found the Petition to be in compliance with the Act and proceeded to prepare the Drainage Report. It was presented, adopted and circulated with an estimated total cost of $8,000.00. However, before work could proceed, appeals were launched to the Court of Revision and subsequently to the Ontario Drainage Tribunal.
The second witness on behalf of the Township was Reeve Les Foote. The Reeve indicated that he had been Reeve for approximately four years and had participated in four or five municipal drains during that time. He stated that the Township had found that the Drainage Engineer, Tom Pridham, had on all occasions provided excellent service in a fully professional manner. He indicated that with respect to the Gazer/Mooney Subdivision Drainage Works all procedures had been complied with, no rights had been violated and all parties had been treated fairly. He stated that in his opinion the Engineer complied with his duties as outlined in Section 11 of the Drainage Act. *
Mr. Rodgers, in cross-examination of the Reeve, asked why the Minutes of a meeting held by the Township with respect to the drain had deleted the comments of Mr. Rodgers who had spoken on behalf of Mr. Baccin. Mr. Rodgers further questioned why he had been asked to leave the Township meeting.
- Footnote: [Section 11 of the Drainage Act outlines the duties of the Drainage Engineer. “The Engineer shall, to the best of the Engineer’s skill, knowledge, judgement and ability, honestly and faithfully, and without fear of, favour or prejudice against any persons, perform the duty assigned to the Engineer in connection with any drainage works and make a true report thereon.”]
Mr. George Mooney, a long time resident and one of the major petitioners for the Drain, was the last witness called by the Township. He indicated that historically the flow of water was clearly to the west – across the various properties toward Highway No. 24. He further indicated that after Mr. Baccin had filled his property, ponding took place upstream to a depth of 24”. He stated that all efforts to provide for a private drain were made impossible because Mr. Baccin would not agree or co-operate. He indicated that in his opinion the Engineer had at all times acted in a fair and professional manner.
Mr. Rodgers, after being duly sworn, presented evidence on his own behalf. Mr. Rodgers commenced by complaining that the Drainage Act does not give the right to “take private property”. He further indicated that the site meeting had been marked by harsh language and strong statements. He believed that the Engineer had shown prejudice and preference. Mr. Rodgers was of the opinion that the depth of the drain would not be sufficient on his property and that the drain would work to the surface as a result of frost action. He objected to the “Clubhouse” attitude displayed by the Township Officials and stated that the Engineer had advised him that the Drain might be constructed off his property after the Ontario Drainage Tribunal Hearing. (The Drainage Engineer replied that he had discussed that possibility with the Appellant before he received the Reasons from the Drainage Tribunal, which Reasons indicated the Drain was to be constructed on the Appellant’s property).
The Solicitor for the Township, in her submission, stated that the Appellant was late in filing his Petition, which ought to have been filed within forty days pursuant to Section 47 of the Act. She noted that Section 47 had been specifically referred to in the Notice of Appeal filed by the Appellant. She further advised that no professional (expert) evidence had been provided by the Appellant any time during the course of the Appeals, including the current appeal before the Drainage Referee.
She further stated that the evidence disclosed that all elements of the Act had be fully complied with by the Drainage Engineer who had at all times exercised his discretion in a professional manner. She further argued that inasmuch as the Appeal was pursuant to Section 47 of the Drainage Act requesting that the by-law be quashed, that there must be evidence of improper procedure, error or lack of jurisdiction. She stated that there was no evidence that there had been any error made with respect to procedure. The Township Solicitor concluded her submissions by filing with the Referee two cases both being Decisions by the Ontario Court of Appeal. The first case was that of the Township of Huntley and the Township of March dated 1909 in which the Mr. Justice Garrow stated that the conclusions of the Engineer ought not to be disturbed “unless it is satisfactorily proved that they are either erroneous in fact or that he proceeded illegally”. The second case being that of Wilson and the Township of Sarnia (1913). In that case, Chief Justice Merredith stated “there is nothing to warrant the conclusion that the Report, plans and specifications and assessments were not the result of the independent judgement of Mr. Code the Engineer. He testified they were”. She concluded by arguing that the findings, more particularly the report of the Engineer, ought to be disturbed or quashed because there was no evidence whatsoever of illegality or improper procedure to contradict the evidence of the Drainage Engineer.
At the conclusion of the Hearing, the Referee agreed to accept written submissions from both parties. Having heard the evidence and read the submissions, the Referee arrived at the following conclusions:
Because the Appellant was not represented in this case by legal counsel, it imposed a great burden on the Referee and on the Solicitor for the Respondent, both with respect to deciding the issues under appeal and with respect to proper procedure. The necessity of a special hearing for the purpose of providing a Procedural Order was certainly one of the consequences that flowed directly from the Appellant’s determination to represent himself. In the circumstances, the Solicitor for the Township must be complimented for assisting the Court of the Referee with respect to procedural concerns in the advancement of the Appeal. However, it must be stated on the Record that the Appellant has the right to act on his own behalf without the assistance of legal counsel.
The issues, as they emerged can be defined as follows:
(a) The issue of the timeliness of the Appeal
(b) The issue of whether or not the Report of the Engineer complied with the requirements of the Act, pursuant to Section 47 of the Act
(c) The issue of whether the By-law adopting the Report and providing for the construction of the drain ought to be set aside pursuant to Section 106, Subsection 1 (b) on the basis of improper procedure, lack of jurisdiction and impropriety, etc. or any other reasonable legal grounds.
With respect to the first issue, namely whether or not the Appellant had filed the Appeal “within the 40 days after the mailing of notices under Section 40” as required by Section 47. It must be remembered that the Drainage Act is remedial legislation and in circumstances where no substantial prejudice is disclosed, relief is normally granted. Section 113 of the Act specifically empowers the Referee to extend the time for appeals. Given that the Appellant did not have the advantage of legal advice (although in his evidence he indicated that he had received legal advice to the effect that the Appeal had not been filed on time) I am inclined to accept the late filing and not dismiss the appeal on that narrow procedural grounds.
With respect to the issue of whether or not the Drainage Report complied with the provisions of the Drainage Act, the evidence totally failed to indicate any non-compliance. The Solicitor for the Respondent Township pointed out in her argument that the Court was not provided with any professional expert evidence to contradict the evidence provided by the Drainage Engineer, Mr. Pridham.
The Referee while acknowledging that assessment is no part of this Appeal cannot help but comment on the legal issue dealt with by the Tribunal with respect to “property restrictions”. The matter was previously alluded to in this Decision and the Tribunal Chairman’s remarks were quoted. The Referee is obliged to direct attention to Section (1) of the Drainage Act which defines Drainage Works as follows:
“includes works necessary to regulate the water table or water level in or on any lands or to regulate the level of waters of a drain, reservoir, lake or pond and includes a dam, embankment, wall, protective works or any combination thereof”.
That Section grants very wide powers to the Drainage Engineer and overrides all traditional common law rights. The Drainage Act was originally required to overcome the limitations of the Common Law. The inadequacies of the Common Law became more pronounced as modern technology improved farming methods and required sophisticated drainage programs even within residential areas. The Drainage Act is legislation designed to provide downstream owners with relief from the increased flows resulting from hi-tech land improvements and likewise upstream owners are granted rights of drainage through or over the lands of downstream owners. The Drainage Act resulted from the failure of the Common Law to provide a remedy for drainage requirements when confronted with a “berming mentality” (with its roots firmly in medieval Common Law). In this case, Mr. Baccin was fortunate indeed in having his neighbours willing to contribute to the construction of a more cosmetic subsurface drain through his property as they might have chose to exercise “their rights of drainage” through his property by means of a more economical open drain. He received a substantial benefit in that regard pursuant to the terms of the current Drainage Legislation which thankfully replaces the unworkable Common Law.
Finally, dealing with the issue of irregularity or impropriety relating to procedural considerations with respect to either the conduct of the professional Engineer or the Township, the Referee can find no grounds to support the allegations of the Appellant. All procedures required by the Act appeared to have been fully complied with. The effort made by the Drainage Engineer to persuade the parties to proceed by way of a private drain so as to avoid the extra cost inherent in a municipal drain, in this case was most commendable. It appears that the problems created by Mr. Baccin may have been totally resolved by the expenditure of little more than $2,500.00. However, that was not to be the case and indeed the much more costly process pursuant to the provisions of the Drainage Act had to be undertaken.
It is not unusual when a drain proceeds by Petition to have some owners displeased with the project. Avenues are provided in the Drainage Act for input, disclosure and appeal in a very democratic process. It is not uncommon to have hostility at meetings called pursuant to the provisions of the Drainage Act and it is my experience that such hostility is often much greater in drains constructed within urban areas or where drains intrude into urban areas. It often appears that Drainage Engineers and Municipal Officials are aligned in interest with those who wish the drain to proceed and consequently oppose the interest of those who wish to halt or discredit the drainage process. However, it must be understood that both the Municipal Officials and the Drainage Engineer are only carrying out their statutory duty. They must proceed with the drainage works providing there is a proper petition and providing all the necessary procedures are followed. It may appear to the dissidents that there is a “Club house” atmosphere prevailing amongst the Drainage Engineer, Municipal Officials and the Parties requiring drainage, however, the Drainage Engineer and Municipal Officials are only doing their duty and the Petitioners are merely exercising their rights under the Ontario Law.
In conclusion, I will deal with some of the specific points outlined in the Appellant’s Statement of Particulars of Appeal.
The second item raised in Mr. Rodgers’ appeal relates to the matter of assessment which is beyond the jurisdiction of the Referee and therefore cannot be addressed.
With respect to the third item mentioned, the Drainage Referee has no jurisdiction with respect to the Professional Engineering Act. The Appellant must seek such remedies before another Tribunal properly constituted to deal with professional standards. The Drainage Referee is empowered to deal with standards imposed by the Drainage Act, but was not provided with any substantive evidence indicating that Mr. Pridham had not complied with the requirements of the Drainage Act in a totally professional manner.
With respect to paragraph 5 in the Appellant’s Particulars of his Reasons for Appeal, the Drainage Referee was not presented with any credible evidence that would suggest that the Drain as proposed would not meet minimum engineering standards. It should once again be pointed out as has been stated in many decisions of the Courts respecting drainage matters over the years that an Appellant ought to provide professional engineering evidence to the Court in circumstances where he is challenging the evidence of a professional engineer.
In reviewing the evidence presented at the Hearing, I therefore conclude that the conduct of the Drainage Engineer and the Municipal Officials was of an acceptable standard and that all procedures required by the Drainage Act had been fully complied with.
I have no difficulty in the circumstances in dismissing the Appeal of Mr. Rodgers on all grounds of this appeal as filed.
With respect to the issue of costs, I note that Mr. Rodgers, although exercising his legal rights of appeal, at various stages of the process has caused considerable delay and has added substantially to the cost of this project, which extra burden will have to be shared by all owners. Also, Mr. Rodgers has chosen to appear without legal counsel so as to limit his own personal costs. That decision has cast a greater burden on the Solicitor for the Municipality.
Finally, it is customary to award costs against an Appellant in circumstances where an appeal is dismissed. Therefore I am awarding costs against the Appellant in favour of the Township fixed in the sum of $800.00 to be added to the assessment of the Appellant and collected in a like manner as assessment in the Drainage Report.
DATED: October 11, 1995
DELBERT A. O’BRIEN
ONTARIO DRAINAGE REFEREE