Kelch v. Romney (Township), 1996 ONDR 4

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Kelch v. Romney (Township)

1996 ONDR 4

DATE OF DECISION:

1996-12-31

1996-04

STATUTE:

Drainage Act

HEARING:

BETWEEN:

1996-07-19 and 1996-09-04

VICTOR KELCH

PLAINTIFF

-AND-

TOWNSHIP OF ROMNEY

DEFENDANT

DECISION

The Plaintiff commenced an action in the Ontario Court (General Division, Small Claims Court) Chatham, Ontario on or about the 24^th day of May 1995. The Claim was for damages in an amount not exceeding $6,000.00 alleging negligence on the part of the Defendant.

The pre-trial of the matter was conducted on the 9^th day of August 1995 at the Court House in Chatham. The presiding Judge ordered the matter to be transferred to the Court of the Drainage Referee.

The matter was heard by the Ontario Drainage Referee in the Court House in Chatham on the 19^th day of July 1996 and on the 4^th day of September 1996.

At the commencement of the Hearing, Mr. Paul Courey, acting for the Plaintiff, moved to amend the pleadings to include a claim for:

(a) A mandatory order requesting that the Townships be compelled to appoint a Drainage Engineer for the purpose of preparing a Drainage Report to examine what remedial measures could be taken to avoid future damage from flooding to the Plaintiff’s property; and

(b) To increase the claim for damages from the sum of $ 6,000.00 to the sum of $18,000.00.

After hearing response submissions from Andrew P. Suboch, Solicitor for the Township of Romney, the Ontario Drainage Referee granted the amendment with respect to the request for the mandatory order and reserved judgement with respect to the request for an increase in the claim for damages. The Referee observed that although Mr. Suboch had not received sufficient notice of the particulars of the amendment sought, he would have sufficient time to receive further instructions from his client before the hearing concluded on the adjourned date. The Referee also commented that he would welcome written submissions with respect to the issue in the meantime.

FACTS

The Plaintiff, Victor Kelch, had recently built a new home in the Township of Romney near the community of Coatsworth, on Lot 25, Concession 3 along the 3^rd Concession Road. A municipal drain known as the Tunnel Drain had been constructed along the southerly ditch of the 3^rd Concession Road which served a drainage area exceeding 1,000 acres. The flow in the Tunnel Drain was to the West in front of the Kelch home, through a pipe culvert in County Road No. 4 and thence south to Lake Erie.

On the 21^st day of August 1994 there was an extremely heavy rainfall which appeared to be rather localized in the Coatsworth area and which caused the Tunnel Drain to overflow across the 3^rd Concession Road onto the Plaintiff’s property. The flooding caused extensive damage to the Plaintiff’s home, rising to a level of one foot (1’) on the main floor, affecting furniture and appliances alike. The water shut down the Plaintiff’s solar heating system and caused serious damage to the structure of the house. The Plaintiff immediately called upon Township officials for assistance and although the Drainage Superintendent attended, no remedial action could be taken on the Sunday. The flood waters gradually subsided being carried away by the Clarkson Drain to the north.

DAMAGES CLAIMED

The Plaintiff’s amended claim was for damages in the amount of $18,000.00. He alleged that the said sum covered only material loss and did not include the cost of labour.

EXPERT EVIDENCE

Mr. Henry E. Regts, P.Eng., the President of Thames Valley Engineering Inc. appeared and gave evidence on behalf of the Plaintiff. Mr. Regts advised that Mr. Kelch’s property was assessed into and drained by the Clarkson Drain, which had been constructed in 1962. The much older Tunnel Drain, which bordered the road in front of the Kelch property, was last repaired and reported on by Wm. Setterington in 1978. He advised that the Tunnel Drain directly across from the Kelch property was required to carry the flow of approximately 1,000 upstream acres while the culvert to the west under the County Road No. 4 was required to handle the flow of 1,200 upstream acres. He indicated that the size of the tile drain directly in front of the Kelch property was of sufficient size to handle a 1” runoff providing the Drain was clean of debris, brush and weeds. He stated, however, that his main concern was the County Road culvert which he believed to be undersized, having a flow capacity, according to his calculations, of only 91.55 cubic feet per second whereas the minimum requirement, of a two year storm would be in the order of 136 cubic feet per second. Mr. Regts further advised that the flow capacity for a 25-year storm would be in the order of 258 cubic feet per second which flow could still be handled by the upstream drain providing it was in good repair.

The Engineer further observed that before the water flowing in the Tunnel Drain would overtop the County Road No. 4 it would require an elevation of 87.50 feet. This he observed would not happen because the elevation of the top of the bank of the drain, both to the north and the south in front of the Kelch property had an elevation of 85.10 feet. Accordingly, severe flooding affecting adjacent properties both north and south would occur when the water reached that height.

Mr. Regts filed many photographs with the Court illustrating that the drain was in need of brushing west of County Road No. 4 and for a short distance immediately east of County Road No. 4. He advised that his investigation indicated that the drain had overtopped the road in 1989, 1991, 1994 and 1995. Such information he acquired indirectly from other owners.

He concluded by advising that several solutions were available:

(a) Petition to have the drain cleaned and brushed;

(b) Raise the road to an elevation of 87.5 to prevent overtopping (construct a berm to the south at the same elevation);

(c) Replace County Road No. 4 corrugated pipe with a culvert of greater capacity;

(d) Raise the Kelch house to a greater elevation;

(e) Have the Township pay for flood damages.

During the cross-examination, Mr. Regts confirmed that the capacity of the ditch itself, providing it was cleaned and maintained, was adequate for a two-year storm. He further conceded that the culvert formula tables, which he introduced in evidence, disclosed that an 84” culvert was adequate to provide drainage for 1110 acres provided the drainage area consisted of level farmland. However, Mr. Regts maintained that for a two-year storm event, in his professional opinion, the minimum capacity to handle 136 cubic feet per second would be a culvert with the minimum diameter of 114” or 9 feet, 6 inches.

VICTOR KELCH

The Plaintiff, Victor Kelch, in his evidence, advised that a heavy thunderstorm occurred on the 31^st day of August 1994 and sometime during the night resulting in the floodwaters filling the ditch and starting to cross the road flooding his property to the north. Mr. Kelch advised in detail of the damage suffered to his furniture, his appliances and the structure of his house as a result. He filed a letter which had been sent to the Township by his solicitor, Samuel A. Mossman, on the 1^st day of September 1994 outlining his damages conservatively at $15,000.00. He filed further invoices and receipts, including another estimate of approximately $18,000.00. He pointed out that the estimates only included material and did not cover labour costs.

He advised that he had personally never seen the water cross the road before 1994, but it has since flooded over the road in June of 1996. He filed a photostatic copy of a letter which he stated he sent to the Township on May 11, 1993 requesting that they examine the ditch advising of possible flooding. He stated that he received a letter in reply from the Township expressing the view that the ditch was up to standard. The Plaintiff filed numerous photographs illustrating the severe flooding that his premises had suffered. During cross-examination by Mr. Suboch, Mr. Kelch stated that he could not recall receiving from the Township an Order to Remedy an Unsafe Building in September 10, 1991 which outlined a number of deficiencies with respect to the construction of his new home, including the following statement:

“Water does not drain away from building”.

Mr. Kelch advised that since the flood he had sent two letters to the Township requesting that they examine the drains surrounding his property with a view to repairing the same – the first dated December 1994 and the second dated February of 1995. During questioning by Mr. Suboch, Mr. Kelch agreed that the Drain had, on several occasions, handled adequately heavy thunderstorms. He admitted that the letter which he allegedly sent to the Township dated the 11^th day of May 1993 had not turned up prior to the first day of hearing and had only been found by his wife in the past several weeks.

MR. WAITES, TOWNSHIP CLERK

Mr. Waites gave evidence on behalf of the defense advising that he had searched Township records thoroughly and could not find any evidence of the alleged letter of May 11, 1993. He advised that it was the Township’s practice to immediately stamp correspondence and give a copy back to the party presenting it. He drew attention to the fact that such a Township stamp was not on the letter filed by Mr. Kelch, although it was on all the other letters presented by him. Mr. Waites was firmly of the opinion that the Township had received no correspondence from Mr. Kelch before the Mossman letter of September 1994 concerning this matter. The Clerk further presented evidence supported by the Township records to the effect that the Tunnel Drain had been brushed as recently as 1987. Mr. Waites concluded by stating that the culvert under the County Road No. 4 was not installed pursuant to the Drainage By-law, but had been installed independently by the County of Kent in accordance with the recommendations of the Township Drainage Engineer.

RICHARD DIBBLEY

Richard Dibbley, the Drainage Superintendent for the Township of Romney, advised that he attended at the site of the flooding on August 22, 1994 after he had been called by the Reeve. He stated that the heavy rain was very localized and the Kelch property was affected because it was much lower than adjacent properties. The Drainage Superintendent advised that they had experienced no problems with the Tunnel Drain in other springs during heavy rainfall and that the Township had no immediate plans for work on the Tunnel Drain in the area that was the subject of this complaint.

SUBMISSIONS

Mr. Courey, in his submissions pointed out that Mr. Kelch experienced difficulty with previous lawyers who had succeeded in misplacing important records of the damages suffered by him. He pointed out that Mr. Regts had provided the only expert evidence, which evidence clearly indicated that the culvert under the County Road was inadequate to handle even a two-year storm event when the normal standard for a County Road would be a 25-year storm. Mr. Courey acknowledged that the late production of the May 1993 letter raised issues of credibility, but argued that Section 118 of the Drainage Act was sufficient to hold the municipality accountable for its negligent conduct in any event. He maintained that the Township was ultimately responsible for the installation of the 84” culvert which was clearly inadequate and therefore constituted negligent conduct. Mr. Courey conceded that the documentation of the damages presented a problem. He pointed out that the Plaintiff had originally believed that he was restricted to $6,000.00 and therefore discounted the need for proper records. He pointed out, however, that inasmuch as the claim only included the cost of materials, the labour component more than compensates for any area of doubt.

Mr. Courey concluded by asking that the Court:

(a) Grant an award for the damages as claimed;

(b) That an Engineer be appointed to examine what remedial measures might be taken to prevent future flooding; and

(c) That costs be granted to Mr. Kelch in the sum of $5,000.00.

Mr. Suboch, in his submissions, pointed out that the onus was on the Plaintiff to prove negligence upon a balance of probabilities. He made reference to the McFee and the Township of Plympton case reported in 61 O.R. (2^nd) 508 where similar negligent conduct was alleged, the Court found that the Plaintiff had an obligation to prove the intensity of the storm, e.g. whether the storm was a two-year storm, a ten-year storm, etc. He further argued that pursuant to Section 79 (1) of the Drainage Act – Proper Notice to the Township of Disrepair, was a condition precedent that must be given within the prescribed time with reasonable certainty describing the nature of the complaint, etc. Mr. Suboch stated that adequate notice had not been given and therefore Section 79 (1) did not apply. He further went on to argue that Section 118 of the Drainage Act had not been properly pleaded and that the requirements of Section 111 of the Drainage Act had not been complied with. The pleadings, he noted, only referred to negligence in maintenance and failed to make any reference to negligence in construction. He concluded by stating that the claim with respect to damages was defective in failing to provide the Court with the necessary supportive documentation. He stated that Mr. Kelch was the author of his own misfortune by building where he did and ignoring the recommendations of the Township. He submitted that costs should be awarded to the Township against Mr. Kelch in the sum of $5,000.00.

ISSUES

1. Whether the Plaintiff should be allowed to increase his claim for damages from the limits prescribed by the Regulations of the Small Claims Court, namely $6,000.00 to $18,000.00 in circumstances where the action had been commenced in Small Claims Court and was transferred to the Drainage Referee by Order of the Small Claims Court Judge.

2. Whether the Township should be held liable for failure to maintain adequately the Tunnel Drain and as a consequence could be held to be responsible for damages caused by flooding pursuant to Section 79 of the Drainage Act.

3. Whether the Township could be assessed for damages pursuant to Section 118 of the Drainage Act for “improper action, neglect, default or omission on the part of Council… or of any of its officers, employees in construction… of the drainage works”.

DECISION

The Referee, having heard the evidence and the submissions, concluded that:

(a) The Plaintiff should be allowed to make an amendment to the pleadings as requested at the commencement of the Hearing to increase the claim for damages. The reasons for granting the Order were as follows:

i The Defendant was not prejudiced by insufficient notice because the first day of Hearing dealt only with the testimony of the expert witness outlining the condition of the drain and related technical considerations without any specific evidence relating to damages being given.

ii The opportunity to submit written submissions with respect to the matter was provided.

iii Counsel for the Defense had more than 5 weeks to prepare for the second Hearing day which dealt specifically with the issue of damages.

(b) The Referee was not satisfied that on a consideration of all the evidence that the Plaintiff had complied with the requirements of Section 79 with respect to adequate notice to the Township of disrepair which notice is a condition precedent to a claim for damages resulting from the lack of repair of a drainage works.

The Referee is simply not satisfied that Exhibit 12 purporting to be a letter dated May 1993 addressed to the Township complaining of the lack of repair was indeed ever sent or received by the Township. This conclusion is founded on several factors:

I The letter was not presented at the first hearing.

II The letter was not stamped “received by the Township”.

III The fact that the Plaintiff’s wife did not provide confirming evidence as to the discovery of the document.

Consequently, I find that the Plaintiff did not give adequate notice as required by Section 79 of the Drainage Act and therefore the Plaintiff is precluded from claiming damages for the flooding resulting from the alleged lack of repair.

(c) The issue of whether or not the municipality is responsible for the installation of an inadequate culvert in County Road No. 4 presents more difficulty. The Township was clearly responsible for the conduct of its agent, the Drainage Engineer, William Setterington, in making his recommendation to the County with respect to the sizing of the culvert. Consequently, if the culvert was clearly undersized the matter could be considered an act of negligence on the part of an employee of the municipality with respect to construction. In such circumstances, the municipality could be held responsible and damages and costs could be awarded payable by the municipality out of general revenues pursuant to Section 118 of the Drainage Act.

In the circumstances of this case, we are dealing with adequate sizing for the purposes of the municipal drain not for the purpose of a County Road. The normal recommended sizing for a municipal drain is a two-year storm. I agree that it is normal when constructing culverts in County Roads to provide for a 25-year storm event.

However, here the issue is not the level of protection required for a County Road, but rather the level of protection required for an owner adjacent to an agricultural drain. That standard is the standard of a two-year storm and in this case and 84” culvert is marginally suitable on the basis of the culvert formula tables presented by Mr. Regts, P.Eng. in his evidence. Mr. Regts, in his well prepared Report, concluded that culvert formula tables indicated that an 84” culvert in level country provided adequate sizing for a drainage area of 1,110 acres. Consequently, I find that William Setterington’s recommendation of sizing was within limits for the purpose of the municipal drain. The matter of whether the culvert is adequate to protect the County Road is the responsibility of the County Engineer.

I am further influenced by the fact that the installation was made 17 years ago and that in the intervening time no other adjacent owner has come forward to complain or to present evidence with respect to flooding problems. Mr. Kelch constructed his house some ten years after the culvert had been installed at a time when he had the advantage of local knowledge concerning the flooding propensity of the area where he chose to build. There is the further evidence that he did nothing to comply with the Order to Remedy which specifically referred to drainage problems.

Finally and perhaps most importantly in the circumstances of this case, there was no evidence provided as to the intensity of the storm in the immediate Coatsworth area. By all indications, rainfall was substantially more than would normally occur during a two-year storm event. The municipality is not an insurer with respect to all levels of storm events. Municipal Drains need not be constructed to a standard beyond that of a two-year storm and in circumstances where greater storms occur the Municipality cannot be held responsible for normal damages that flow as a result of such an event. In this case, there is no reason to believe, based on the evidence provided, that a culvert as recommended by Mr. Regts, namely 9’6”, would have prevented flooding in these circumstances. I therefore find that the Municipality was not negligent and is therefore not responsible for damages which resulted from the recommendation made for the installation of the 84” culvert on County Road No. 4.

(d) I agree, however, that in these circumstances the preparation of a Preliminary Drainage Report to explore the possibility of simple and inexpensive solution to the flooding problems of adjacent owners to the Tunnel Drain in the area of the Kelch property would be justified. A Preliminary Report normally does not deal with the issue of assessment, but I would request that in addition to a review of the feasibility of alternative solutions that an estimate of the cut-off benefit assessment attributable to the Kelch property be made. This will enable Mr. Kelch to make an informed decision as to whether or not he wishes the Municipality to proceed with a full Drainage Report. It will also assist other affected owners in determining whether or not they support or oppose such a project. If the matter does not proceed to a full Report, I order that the cost of the Preliminary Report be payable by the Municipality out of general funds. With respect to the issue of costs, I am of the opinion that no order should be made with respect to costs and that each party will be responsible for their own legal costs.

DATED: December 1996

DELBERT A. O’BRIEN, Q.C.

ONTARIO DRAINAGE REFEREE