Ontario Superior Court of Justice
In the Court of the Drainage Referee
Evanturel v. McLean (Township) 1996 ONDR 2
Date of Decision: 1996-06-03
1996-02
Statute: Drainage Act
Hearing:
Between:
The Corporation of the Township of Evanturel Appellant
-and-
Brian McLean and Carol McLean Respondents
Appearances:
For the Appellants: Murray N. Ellies, Q.C., Kirkland Lake, Ont.
For the Respondents: Robbie D. Gordon, Haileybury, Ont.
Reasons for Order
On the 23rd day of May 1996, the Ontario Drainage Referee conducted a Hearing in the Court House in Haileybury to deal with an Appeal of Brian and Carol McLean filed pursuant to an Order made by the Referee dated January 25 1995.
In that Order the Referee had required that the Township of Evantural retain the services of a drainage engineer to investigate the No. 4 Drain and provide a Drainage Report for its repair and improvement. That same Order provided for a right of appeal to the Referee with respect to any aspect of that Report by any of the affected parties. The Appellant has filed the present appeal.
The features of the watershed and the particulars of the No. 4 Drain had been previously outlined in the Reasons for Decision referred to above.
Mr. Ken Smart, the appointed Drainage Engineer, an engineer with considerable drainage experience, provided a Status Report dated October 2 1995. The Report was considered by all affected owners at a meeting called by the Township of Evantural October 30 1995. The Status Report at first outlined the current existing conditions of the Drain and addressed the comments of various owners made at a site meeting held May 25 1995. At that meeting it should be noted the owners in Ingram Township, namely Ruth McLean, Raymond Peddie, Ed McLean (representing Brian and Carol McLean) all requested that work be done on the Drain.
Reporting on his observations, Mr. Smart noted that significant erosion in isolated areas existed downstream of the official drain where the ravine had deepened over the years because of the steep slope. The outlet into the Blanche River created very high eroding velocities under flood conditions. He concluded that “in his opinion the channel has now reached this state” (stable equilibrium) “as witnessed by the age of the trees within it”. He calculated that since 1917 the average bottom has deepened 3 – 4” per year and the top of the bank width may have increased 6 – 12”, per year although the rate of that erosion would have been much less in recent years. He further observed that in recent years the erosion was at scattered locations and would decline with the aging of the ravine.
He noted that some of the evident top erosion was caused by surface water entering the ravine at certain points particularly at the location of the culverts under the parallel laneway. He believed the integrity of the laneway would be preserved if the culverts were repaired and surface runoff arrested although he recommended an annual inspection to remove bottom obstructions.
Mr. Smart, having outlined his observation of the existing conditions of the drain and downstream watercourse proceeded to make his recommendations. With respect to the municipal drain section, only limited work was proposed primarily to limit erosion along the north side so as to arrest any further encroachment on the laneway which provides access to the Pollock (McLean) property. More significant work was recommended to extend and rip rap the laneway culvert at the Townline. Annual inspections were recommended to remove bars that might develop in the bottom of the drain and any existing bars were to be removed as part of the proposed work. The work proposed with respect to the section beyond the outlet of the official drain was also quite limited. He observed that because of the extensive vegetation in the ravine that future erosion would be localized arising from bars in the bottom which would develop from time to time. The Drainage Engineer recommended that, in the future, cost benefit considerations dictated that “insufficient outlet allowances” be given to the owners on a one time basis so that they would be compensated for erosion loss past and future. In the ravine portions he also recommended that at the points where culverts direct surface flows into the watercourse that rip rap protection be installed. A 48’ culvert linking the Bryan and Carol McLean property with the Ruth McLean property was to be left in place and rip rapped.
Mr. Smart provided two work options depending on whether or not the owners in Ingram Township joined in a petition to have the Ministry of Agriculture, Food and Rural Affairs contribute 800 of the cost of the work done in the unorganized township. If the petition was signed he proposed that all of the work previously referred to be done at a total estimate cost of $28,000.00, (of which $13,000.00 would be assessed to the Ingram properties, $15,000 to Evantural properties and $1300.00 to the Townline Road) . Under this assessment scheme the Appellants would pay a total net assessment after allowances of $600.00, the G. Pollock property would receive a payment of $500.00, the C. Peddie property would receive payment of $450.00 and the Ruth McLean property would be assessed $100.00 net.
Mr. Smart made a secondary recommendation which could be implemented if the Ingram owners refused to sign a petition. In that case no construction work would be done except at the Townline Road and greater allowances would be made to the owners in Ingram Township for insufficient outlet, etc. Total Evantural assessment would be in the neighbourhood of $13,500.00 and it would be totally assigned to Evantural owners and the Townline Road.
In both schemes the status of the 2000 feet in Ingram Township as a municipal drain would be confirmed and the maintenance of the same, excepting culverts and surface flows into the drain, would be the responsibility of Evantural Township.
At the Hearing the Appellants presented D.F. Elliott, P.Eng. who produced and filed a Report dated November 1995 (Exhibit # 2) which outlined his recommendations with respect to the repair and improvement of the No. 4 Drain. Mr. Elliott observed that there would be “on going progressive failures and eventually a wide, uncontrolled meandering ditch” because there was no evidence that the existing channel and toe of the slope was stable. He therefore made two recommendations. The first provided for complete stabilization of the ravine using rock protection and geotextile fabric to a depth of 2 ‑ 3 meters with the cut back of existing slopes above the rock protection at 2:1. The slopes would then be treated with topsoil seeding and mulching. The total cost was estimated at $788,323.00. A second alternative to stabilize the north side only would cost an estimated $429,561.00.
A third more cost effective option was proposed by Mr. Elliott providing for the stabilization of the bottom only and the protection of existing failures. This proposal would provide for a stabilized channel bottom up to the high water mark with rock protection and geotextile fabric. Surface water discharge points would be stabilized with rock protection and existing slope failures with granular “B” or pit run. The cost of this third option was estimated to be $102,704.30.
Mr. Blackburn, an Ontario Land Surveyor practicing out of North Bay Ontario, also presented evidence on behalf of the Appellants. He advised that there was a major jog in the property line between the north and south halves of the lots at the division between Lots 1 and 2 Concession 3. This jog moved the property line 75 feet to the south so that virtually the entire ditch in Lot 2 appears to be located on the Pollock property.
The Appellant called Mr. Gibson, a current resident of North Bay, who advised that he was raised on the Pollock property. He stated that in 1961 the ditch at the road was 4 feet deep and 5 feet wide and at its outlet was 20 feet deep and 25 feet wide. He admitted he sold the 35‑40 acres for the sum of $1500 ‑ $2000.00 in 1961.
Mr. Ed McLean presented evidence on behalf of the Appellants. He confirmed the evidence of Mr. Gibson, but added that the measurements given for 1961 were about the same in 1971. He advised that the major erosion started in 1975 and filed photographs of current areas of significant erosion. Mr. McLean said that the upper 1800 feet was holding up quite well and that his concern was with respect to the area beyond that point.
He supported Option 3 of the Elliott report recognizing that Option 1 was more than the local economy could support. He further stated that in his opinion the work proposed in option 3 could be done at a cost of $39,000 for the Lot 2 area and $12,000 for the Lot 1 area. He concluded his evidence‑in‑chief by proposing that alternative outlets be explored for the Evantural water ‑ noting that such outlets were available both to the south and to the northwest.
During examination by Mr. Ellis, Mr. McLean would not commit to sign a petition to be filed with the Ministry. He agreed that $1,000 per acre was fair for the agricultural land, but stated that the bush had more value having frontage on the Blanche River. He agreed that Bryan McLean had the equipment and means to do the remedial work proposed.
In presenting reply evidence, Mr. Smart observed that aerial photographs taken in 1969 disclosed by an examination of the contours, that the top width just east of the division between Lots 1 and 2 was 40’ and the grade 1 ‑ 20. The current measurement at the lot line, he stated, showed a top width of 50 ‑55 feet, thus revealing the enlargement of the channel over 27 years to be 15 feet. He confirmed his opinion previously given that the ravine downstream of the official drain was a natural watercourse. Mr. Smart noted that considerable erosion control work had been completed by the McLeans on their property with respect to entry culverts, etc. and advised that compensation should be granted for such work, if acceptable, in the complete Drainage Report. He concluded by stating a final Report ought to be completed, but only after a petition to the Ministry was signed by all or most of the Ingram Township owners. If such a petition was not forthcoming he recommended that Option 2 be adopted and indeed he opined that considering the extent of the work done by the McLeans he might be inclined to recommend Option 2 in any event. When prompted by Mr. Ellis, he agreed that a value of $1,000.00 for bush land, in the circumstances, as not unreasonable.
Rob Gordon, in his submissions, made three major recommendations.
Firstly he argued that the erosion was clearly not arrested and would continue requiring a maintenance commitment to be enshrined in the Drainage Report.
Secondly, with respect to allowances he noted that with the property re‑alignment in Lot 2 that the Peddie allowance ought to be transferred to the Pollock property. He urged the increase of the acreage allowance to $1,000 per acre for all property lost to erosion arguing that the considerably increased flows since 1974‑75 were largely responsible for the enlargement of the channel.
Finally, he submitted that a greater portion of the assessment ought to be transferred upstream to the Evantural lands, particularly considering that no allowances had been granted in the previous drainage report.
He concluded by requesting that the Drainage Referee take a further view of the site, which proposal was agreed to by all Parties, notice of such a request having previously been made.
A letter from the Ministry of Agriculture, Food and Rural Affairs was filed by Mr. Ellies and thus formed part of the evidence. It was dated January 15, 1996 and clearly advised that the Ministry would not be prepared to fund an undertaking as elaborate and costly as those proposed in the D.F. Elliott Proposals.
Having heard the evidence presented and filed, and having visited the site for the second time, the Referee came to the following conclusions:
The Preliminary Report of the Drainage Engineer, K. Smart, is consistent with the expectation of the Referee and in accordance with the Decision dated January 25 1995. IT IS THEREFORE ORDERED that the Township of Evantural proceed to have a final Drainage Report made based on the Preliminary Report of K. Smart. Option 1 is to proceed if the Owners in Ingram Township sign the petition with the Ministry. Work is only to be done on the properties of the owners who sign the petition. If the Bryan and Carol McLean and Pollock property owners fail to endorse the petition then Option 2 is to be proceeded with.
I further recommend the following modifications or confirmation of specific proposals.
(a) allowances are to be based on a land value of $1,000.00 per acre;
(b) Bryan McLean is to be allowed to complete, under supervision, as much of the work on the McLean lands as he desires so to do and he is to be compensated for the work he has already done consistent with the recommendations in the Drainage Report as revised.
(c) the allowances for insufficient outlet are to be increased by 100. with appropriate adjustments re: the Peddie Property.
(d) if Option 1 is proceeded with the Official Drain is to be extended downstream by an additional 200 feet beyond the 2,000 feet proposal with appropriate rip rap installed. Provision for future maintenance of this portion shall be provided
To expedite proceedings, all regular appeals, as provided in the Act, will be abridged and only one final appeal will be available to all owners affected both with respect to the scheme in the final Drainage Report and assessment therein. That appeal will be to the Referee and shall be filed within forty (40) days of the mailing of the Report to owners.
There shall be no Order as to costs.
DATED June 3 1996.
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee