ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Courtney v. Huron (Township)

1998 ONDR 5

DATE OF DECISION:

1998-12-29

1998-05

STATUTE:

Drainage Act

HEARING:

BETWEEN:

LYNN COURTNEY

APPELLANT

‑AND‑

THE CORPORATION OF THE TOWNSHIP OF HURON

RESPONDENT

DECISION

This matter commenced when the Appellant, Lynn Courtney, filed his claim in the Ontario Court (General Division) at Walkerton, Ontario on the 27th day of May 1993. In his Statement of Claim subsequently filed and dated the 11th day of December 1995, he made a claim for damages in the total amount of $128,547.41 from the Respondent Township for negligence in the maintenance and operation of the Carter Drain. He further requested that the Referee order that further repairs be made to the Drain at the cost of the Respondent Township and that the Respondent Township be required to pay all future maintenance costs with respect to the Carter Drain. Inasmuch as the Appellant elected to act on his own behalf, without the assistance of legal counsel, procedural difficulties immediately arose requiring the Referee to make two Procedural Orders, the first dated the 15th day of November 1995 and the second dated the 7th day of November 1996.

Counsel for the Respondent, Albert L. Ostner, Barrister and Solicitor, filed a Statement of Defence denying the claims of the Appellant, claiming the losses were excessive and that the Appellant failed to mitigate his losses.

On the 2nd day of December, 1996, Counsel for the Respondent, W. H. Peter Madorin, Q.C., (replacing Albert L. Ostner) requested amongst other matters that the Respondent be granted leave to amend the Statement of Defence so as to permit the pleading of Section 47 Section 101, Section 106, Section 111, and Section 118 of the Drainage Act together with provisions of the Limitations Act. Having granted leave to amend the Statement of Defence, the Referee granted the Appellant further time for written submissions with respect to the issue of whether the Appellant was statute barred with respect to his claim for damages. After receiving written submissions from both parties, the Referee determined in an Order with Reasons given dated 11th March 1997 that the Appellant was statute barred in raising any claim for damages prior to May 27 1991.

Of major relevance in this proceeding was the fact that the Ontario Drainage Tribunal, at the request of the Appellant, Lynn Courtney, conducted several Hearings with respect to the same Carter Drain finally arriving at a Decision dated 30 August, 1994 . The Appeal to the Ontario Drainage Tribunal had been pursuant to Section 48 and Section 54 of the Drainage Act relating to a Drainage Report initiated by the Council of the Township of Huron pursuant to Sections 76 and 78 of the Drainage Act. That Report provided for the maintenance and improvement of the Carter Drain since its last repair work in 1983 and also required a new Assessment Schedule.

The Chairman of the Drainage Tribunal, in his Decision described the Carter Drain and provided a brief history of proceedings:

“The Carter Drain was constructed in 1964. It consists of a covered drain 900 meters

long housed in 350 mm to 250 mm tile over Lots 16 to 19 and 4,300 meters of open drain over Lots 19 to 28. The Carter Drain Extension was constructed in 1966. It is an open drain 270 meters long over Part Lots 28 and 29. The Carter Drain Extension No. 2 was constructed in 1978. It is an open drain 730 meters long over Lots 29 and 30. The area of the watershed is 630 ha. There is extensive subsurface drainage within the watershed. The three previous reports provided an allowance for loss of access. Therefore, all of the farm crossings that exist are the responsibility of the assessed owners.

The Report recommends the installation of 428 sq. m. of riprap as erosion protection, three grade control structures, the removal of the two existing culverts, provision for a buffer strip along the open drain on each side, appropriate rodent gates, one catch basin and other miscellaneous items. The estimate cost of the work is $52,600.00. The soils in the watershed have been mapped as Brookston Clay Loam and Berrien Sandy Loam. The Brookston Clay is a fine texture till exhibiting poor drainage. The Berrien Sandy Loam is a sandy outwash over fine textured till exhibiting imperfect drainage. The on­site meeting was held on June 26 1992. On page 2 of the Report, filed as Exhibit # 2, the Engineer states:

‘At the meeting, it was evident that the alleged problems with this Drain stem from a maintenance operation (cleanout) in 1983. Information received at the meeting indicated that the Drain was deepened below the design grade and this has created problems with: bank erosion, grade level crossings and rocks removed from the Drain bottom and placed on the banks. The main area of contention is Lot 22 Con. 9 (the lands of the Appellant, L & F Courtney). While several owners admitted that there were some problems with the Drain, they seemed reluctant to spend much money to correct the problems.’

After the background data had been gathered, the field survey made, preliminary design and cost estimates completed, a second meeting was held with the lands owners on December 3 1992. Three designs were considered. They ranged from an estimated cost of $120,000.00 for a full project to a low of $30,000.00 for a minimum project. Most owners preferred that only a minimum amount of work be done to fix the eroded banks and to construct grade control structures in two strategic locations. At this point, it was evident to the Engineer, and he brought it to the attention of those attending the meeting, that the Drain is deeper and wider throughout many of the properties than shown on the profile in the previous Report (1963).

In his (the Engineer’s) opinion the reasons were:

(i) the over‑excavation of the 1983 cleanout;

(ii) the large rocks removed at the time lowered the bottom further than anticipated

(iii) the high velocity (due to the gradient of the channel with grades up to 0.65%) combined with the erodable soil have caused scouring and erosion since the 1983 cleanout.

He noted that, although the Drain has steep banks, they are stable where they are vegetated and where there is no cattle access to the Drain. In his opinion, a major restoration work would be of questionable cost‑benefit at this time. His recommendation is to do a minimal amount of riprap placement on the eroded banks and place grade control structures in strategic locations. The reach of the Drain over the Appellant, L. & F. Courtney lands between sta. 3 + 615 and 4 + 030 will have the following work done on it.

One grade control structure;

Grade crossing at the existing pipe;

Riprap at two surface water inlets and at the Lowery Drain outlet; and

One area of channel straightening

The Courtney lands have been assessed the sum of $2,500.00 as benefit, $982.00 as outlet for an affected area of 30.4 hectares.”

Of special significance is the fact that the Engineer, Mr. Kuntze, in his Report assessed $9,250.00 as a special benefit assessment to the Township in recognition of the Township’s failure to control the over‑excavation in 1983.

The Ontario Drainage Tribunal, in its Decision, after reviewing the evidence, including the evidence of two experts provided by the Appellant, Lynn Courtney, arrived at the following conclusions:

“l. Although technically, the drainage works could be restored to their pre 1983 or 1964 condition, it is not practicable, nor would it serve any useful purpose to do so; in any event, the costs would be exorbitant.

2. The object of the remedial work is to preserve the cross‑section by minimizing further slope instability and erosion and to restore the invert to its 1964 grade.

3. The remedial works proposed by the Engineer are the type of works to attain the objective; however, in the opinion of the experts called by the Appellant are not extensive enough.

4. The 1983 ‘cleanout’ contributed to the deteriorated state of the drain.”

The Ontario Drainage Tribunal therefore went on to Order

(a) that the flow control structure proposed by the Engineer to be constructed by the owner sometime in the future at sta. 3 + 650 be constructed immediately as part of the Drainage work.

(b) that an increase in allowances to the Appellant of $465.00 to compensate for lost land due to the widening of the drain.

(c) that the Appellant’s crossing be duly constructed to the 1996 elevation at the cost of the drain or in the alternative grant be given to the Appellant of some $2,000 if he elects to construct a high level crossing.

(d) that the Appellant’s benefit assessment be reduced by $1,000.00

(e) that the total special assessment assessed to the municipality “arising out of its dereliction of duty in 1983 (permitting the overdigging of the drain) to be increased from the sum of $9,250.00 to the sum of $14,550.00.

(f) that the Appellant’s legal costs of $1500.00 be payable by the municipality.

I have specifically set out in detail some of the text and many of the determinations made by the Drainage Tribunal in its Hearing with respect to this matter because much of the evidence presented to the Referee was a repetition of the evidence presented to the Drainage Tribunal. Also, the Drainage Tribunal, in its decision, dealt with many of the grievances of the Appellant, leaving the issue of damages to be dealt with by the Referee.

As a result of the Decision of the Ontario Drainage Tribunal, work proceeded in 1996 pursuant to the Drainage Report on the Carter Drain whilst the Appeal of Lynn Courtney proceeded before the Drainage Referee. It is important to outline for a better understanding of the Referee’s Decision the physical results as they applied to the Appellant’s property when the work was done to implement the Drainage Report in 1996. Attached to the Referee’s Decision is a statement pursuant to Section 114 of the Drainage Act of the observations made by the Drainage Referee reflecting the current state of the Carter Drain when the Referee took a view of the Drain in the company of the Parties during the course of the Hearing.

The work done on the Courtney property, namely Lot 22 Concession 9 Township of Huron as a result of the Decision of the Ontario Drainage Decision modifying the Drainage Report of Mr. Kuntze was as follows:

Several tile drains on the south side of the Carter Drain were provided with outlet pipes. The Lowrey Municipal Drain on the north side was provided with stabilizing riprap and a new outlet. Mr. Courtney elected to go with a high level crossing using cement tiles; and on the upstream side of the crossing a flow control device was established calculated to raise the bottom grade to the grade of the 1964 Report. Downstream near the westerly boundary of the Courtney property a further flow control device was constructed consisting once again of large rocks which was also calculated to raise the bottom of the drain to the 1964 profile level. In addition riprap was applied in certain areas, particularly immediately downstream of the Courtney crossing for the purpose of stabilizing the banks. Thus it appeared that the physical site of the drain had been modified to comply with the wishes of Mr. Courtney with the exception of his claim for damages and the unsightly presence of a spoil bank consisting of rocks and cobble on the south side of the Carter Drain east of the Courtney crossing. There was a suggestion in the evidence which was confirmed in the Decision of the Ontario Drainage Tribunal that the Township had offered to remove this row of spoil, but that its offer had been rejected by Mr. Courtney.

Mr. Courtney, acting on his own behalf, was accompanied by his wife who sat at his side diligently assisting him in the presentation of his evidence. Mr. Courtney and his wife had obviously expended a great deal of time in preparation for the Hearing and although handicapped, as a layman, as to the Rules of Evidence and Procedure, he at all times displayed deference to both the Referee and Counsel for the Respondent.

At the conclusion of the Appellant’s presentation of his evidence Mr. Madorin, acting on behalf of the Respondent, elected not to present any evidence choosing to rely on his submissions only with respect to the evidence of the Appellant.

The Appellant’s evidence indicated that the Courtneys were the owners of a 100 acre farm which they purchased in 1976 from Mr. Courtney’s father. This farm had been in the family for nearly a century. They live in a house on the farm of modern design where they presently raise sheep and grow cash crops (previously registered seed). The Carter Drain which was constructed in 1964 ran across the property in an east west direction along a course that was previously a natural water run linking a series of ponds on the property. The Carter Drain has gone through two extensions. In addition the Lowrey Municipal Drain has been constructed north of the Carter Drain on the Appellant’s property with the outlet into the Carter Drain just to the east of the Appellant’s crossing in the Carter Drain. The north east corner of the Appellant’s property was served by the Lowrey Award Drain which also had its outlet in the Carter Drain, but which outlet was located on the property of the neighbor to the east, namely Mr. Carter. Most of the Courtney land was drained with a combination of systematic and random tiling in the areas north and south of the Carter Drain. Although most of the Courtney lands drained into the Carter Municipal Drain, the extreme southern area of the farm drained in a southerly direction away from the Carter Drain.

Mr. Courtney had unfortunately been involved in a serious accident in 1982 losing the use of his right hand in a grain auger and at the same time seriously injuring his back. Long periods of hospitalization and therapy followed. Unfortunately, during the cleanout of the Carter Municipal Drain in 1983 the time he was able to spend on site while the work was progressing was severely limited by the necessity of his regular attendance for therapy at the hospital. Mr. Courtney’s treatment and rehabilitation continued for years and his condition was further exacerbated by a tractor accident in 1994.

The first evidential burden which fell upon the shoulders of the Appellant in this matter was to show on a balance of probabilities that the Respondent Township was guilty of negligence.

Section 118, subsection 2 of the Municipal Act provides

“where damages and costs become payable owing to any improper action, neglect, default or omission on the part of a council of any municipality or of any of its officers or employees in the construction, improvement, maintenance or repair of the drainage works or in carrying out the provisions of the Act, the Referee or Court may direct the whole or any part of such damage and cause shall be borne by the municipality and payable out of the general funds thereof”.

The matter of the negligence of the Respondent Township, in the opinion of the Referee, was established by the following factual events:

(a) Communication between the Township officials and the Appellant was deficient so as to have led the Appellant to believe that the digging contemplated by the 1983 work would be limited to a clean up of the aquatic weeds in the bottom of the ditch.

(b) The Township commenced the work without having at hand a copy of the 1964 Drainage Report profiled outlining the grades of the original work or if such a profile was available to the Township, the Township failed to properly instruct the operator or to take other measures to ensure that the grades were maintained at the 1964 levels.

(c) The Township did not provide sufficient supervision during the process of cleanout so as to terminate the excessive deepening of the ditch when large boulders were encountered and after Mr. Courtney requested that no further digging be done.

(d) The failure of the Township to provide the Owner with a copy of the profile in a timely fashion also constituted misconduct on the part of Township officials.

(e) The Township’s delay in dealing with the results of the 1983 over excavation was also unacceptable.

The above mentioned evidence in my view was sufficient to establish negligence on the part of Township Officials for which the Township is responsible. The Appellant, Mr. Courtney, also raised other issues purporting negligence which the Referee finds were insufficiently proven. Some of the allegations were as follows:

(a) The spoil bank was placed on the wrong side of the drain. The Referee finds that this matter was compromised by the failure of the Appellant to give clear instructions.

(b) The allegation that tile outlets were seriously damaged. This circumstance was also compromised by the failure of the Appellant to clearly identify such outlets and communicate the same to the Township before the work commenced.

(c) The alleged damage to the Lowrey Award Drain Outlet by the operator. The evidence was circumstantial and was seriously weakened by the failure of the Appellant to take prompt action as a Party to the Award Drain to have the same put in repair in accordance with the terms of the Award Agreement.

(d) The allegation that the Township did nothing to deal with the spoil bank consisting of boulders and cobble on the south side of the drain. This allegation was offset by the inaction of the Appellant with respect to the removal of the same and his apparent refusal to allow the Township to subsequently remove the same.

(e) The allegations made of bias and prejudice in the conduct of the Township Council. The evidence in support of the same was measured against the apparent intransigence of the Appellant himself, his excessive demands, lack of co‑operation and his repeated threats of litigation etc. and in that context fell short.

It should also be noted that the findings of the Referee with respect to the negligence of the Respondent Township are consistent with the conclusion of the Ontario Drainage Tribunal which indicated that the Township was clearly “derelict in its duty” with respect to the Drain.

Having concluded that the Appellant had established negligence, the second hurdle which the Appellant encountered was that of proving damages. For the purpose of clarity and organization I have divided the damage claims into three parts, namely those that relate to damages allegedly suffered south of the Carter Municipal Drain, those that were allegedly suffered as a result of the difficulties with the low flow crossing and finally those that were allegedly suffered in the a area north of the Carter Municipal Drain.

1. DAMAGES SOUTH OF CARTER DRAIN

The crop damage south of the Carter Drain as alleged by the Appellant was as follows:

For the years 1991 and 1992

1. $80 x 2 acres for two years = $ 360.00

2. 21 acres at $40 per acre for 2 years = 1,680.00

For the years 1993 and 1994

3. $80.00 x 2 for 2 years = 360.00

4. 13 acres at $40 per acre for 2 years 1,040.00

5. 6 aces at $20 per acre = 240.00

Also included was the sum of $237.30 with respect to expenses for grass seed which failed in the year 1992 south of the Carter Drain. 237.30

TOTAL 3,917.30

2. DAMAGES TO IMPLEMENTS AT LOW FLOW CROSSING:

The Appellant expended the sum of 266.84

in effecting repairs to farm machinery damaged

while crossing the low flow crossing in the Carter

Drain after the 1983 cleanout caused substantial reduction in depth.

TOTAL $4,184.14

3. DAMAGES NORTH OF THE CARTER DRAIN

The crop damages claimed relating to the area north of the Carter Municipal Drain was as follows for the years 1991, 1992, 1993 and 1994:

3 acres at $40 rate = 120 for 4 years 480.00

2 acres at a $70 rate = 140 for 4 years 560.00

$1,040.00

Expenditures for Construction allegedly caused by excessive moisture:

(a) expenditure in year 1992 for tile work

re: direction of flows from the Lowrey Award

to the Lowrey Municipal Drain 972.00

(b) Construction of driveway, etc.

in September 1993 2,117.00

3,089.63

Fence Repairs North of the Carter:

Caused by the need to convert the north east field to livestock raising

1991 456.00

1992 889.40

1993 706.63 2.052.03

TOTAL $6,181.66

Consideration of Damage Claims North of Carter Drain:

With respect to the Appellant’s claim for damages arising in the area north of the Carter Municipal Drain, the Referee finds that the Appellant has not proven that such damages were caused by the negligence of the Respondent Township. The Appellant argued repeatedly that the damages in the area north of the Carter Drain arose from the malfunction of the Lowrey Award Drain, in particular the outlet into the Carter Drain on the property of Mr. Carter. He claimed that the drainage of the north easterly area of his farm, which was served by the Lowrey Award Drain, was impaired on account of problems with the Award Drain. Mr. Courtney maintained that at some point the outlet tile or pipe of the Lowrey Award had apparently been struck by some object causing it to malfunction. He further indicated that later it was repaired by the insertion of an 8” outlet pipe into the 10” tile. The Appellant was not certain as to who had undertaken the repair of the Lowrey Award Drain but assumed it was Mr. Carter inasmuch as Mr. Carter was responsible for that portion of the Carter Award Drain.

However, there was no direct evidence to support a claim that the Township Officials or Agents interfered with this outlet. As it is the exclusive responsibility of the owners of the Award Drain to maintain it in accordance with the Award Agreement, the Township had no responsibility for any repairs to the Award Drain. It is hard to understand why Mr. Courtney would have allowed the Lowrey Award Drain which served a significant area of his property to malfunction over a number of years without insisting that repairs be made to the same by the party responsible, apparently Mr. Carter. Therefore the Appellant’s claims with respect to damages arising during the years 1991, 1992, 1993, and 1994 with respect to crop loss, construction, fencing etc. fail for want of proof that such damages arose from the negligence of the Respondent Township.

Damages Relating to Crossing

The Appellant’s damage claim with respect to breakage of farm machinery experienced in crossing the low flow crossing after the 1983 cleanout is both modest and justified in the opinion of the Referee. The Appellant’s evidence was that as a result of the excessive deepening of the Carter Municipal Drain the low flow crossing was rendered much more difficult to negotiate because of the steepness of the approaches. As a result he suffered damage to his machinery. Some of the breakage may also have arisen from contact with stones and boulders in spoil areas south of the drain. In any event, I find that this damage claim to be proven and I find it to have arisen from the excessive deepening in 1983.

Damages South of the Carter Municipal Drain

The Appellant’s claim for damages for crop loss south of the Drain I find to be both reasonable and adequately proven. I also am satisfied that such losses were caused by the negligence of the Respondent Township in excavating the Carter Drain to a depth significantly beyond that a required by the 1964 Report. The Appellant alleged that Drainage in a significant portion of the field south of the Drain was impaired by a very substantial berm of cobbles and boulders which resulted directly from the over digging of the Drain. In addition, he alleged that the tile drains were interfered with by the weight of the machinery working on the south bank. In any event, the Appellant found it necessary to do extra work in improving the tile outlets after 1983. That work was similar to the work done in 1996 under the supervision of the Engineer, Mr. Kuntze.

Crop damage is always very difficult to establish because there are so many factors influencing production namely, weather, human skills and expertise, use of fertilizer and pesticides, quality of seed, etc. However, past Drainage Referees have acknowledged this difficulty and have repeatedly stated that it is a discretionary judgment that must be made. This Drainage Referee is satisfied that the claims of the Appellant with respect to crop damages suffered south of the Carter Drain were adequately proven.

Mitigation of Damages:

Mr. Madorin, Counsel for the Respondent, argued forcefully that the Appellant, Mr. Courtney, failed to properly mitigate his damages as was his duty before the Law. He indicated that there was a duty to mitigate tort claims, quoting the case of Hamilton Gas & Light Co. and the United Gas & Fuel Company v. Guest 1916 CanLII 578 (ON SCAD), 1916 37 O.L.R. 132 He further pointed out that impecuniosity was no defence as was illustrated in the case of Alberta Caters Ltd. v. R. Volland Ltd. 81 D.L.R.3rd Ed 672.

It should be noted, however, that in the rather unique circumstances of Municipal Drains, the duty to mitigate is somewhat offset by the continuing obligation of the Municipality to maintain the drain in repair and in these circumstances the Appellant went a substantial distance toward mitigating his losses when he repeatedly demanded that the municipal authorities take remedial action.

Further, Mr. Courtney was limited in his mitigation efforts by the provisions of the Drainage a Act. He could not have installed flood control structures nor altered the low flow crossing without the consent of the Municipality. Perhaps he could have arranged for the hauling away of the spoil berm which he did in part, but such an undertaking was beyond what could reasonably be expected of the average farmer. In most circumstances it is the duty of the average farmer to deal with a normal spoil berm and restore the soil for permanent cultivation. However, in these circumstances, the spoil berm was abnormal containing a large quantity of large boulders which could not be worked into the land.

Mr. Courtney did change his farming practices by abandoning the more lucrative pedigree seed production in favour of commercial production and further commenced to raise livestock, namely sheep in response to the difficulties he encountered with respect to cash crops. I am satisfied therefore that Mr. Courtney, in the circumstances, acted reasonably and within the scope of his responsibilities to mitigate his damages.

In coming to this decision, I took into account the very serious injury suffered by the Appellant immediately prior to the 1983 work which impaired his ability to deal with the situation;

It appeared from the submissions of Mr. Courtney that he was claiming punitive damages. I agreed with Counsel for the Respondent that there is no basis in this matter for an award of punitive damages. A Supreme Court of Canada decision submitted by the Respondent’s solicitor, namely Vorvis vs. I.C.B.C. reported at 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193 Mr. Justice McIntyre states at page 208

“Moreover, punitive damages may only be awarded in respect of conduct which is of such a nature as to be deserving of punishment because of a harsh vindictive reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which should describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in nature and such that by any reasonable standard it is deserving of full condemnation and punishment”.

Mr. Justice McIntyre has correctly set forth the law and have no hesitation in stating that the conduct of the Township and/or Township Officials was far from giving cause for punitive damages.

I find that, although mistakes were made as a result of errors in judgment, the conduct of Council and its officials and agents was not “reprehensible and of a malicious nature”. The claim for punitive damages is hereby denied.

I THEREFORE ORDER that the Applicant, Lynn Courtney, be paid damages in the amount of Four Thousand One Hundred and Eighty‑Four Dollars and Twenty‑four Cents ($4,184.24) by the Respondent Township out of its general funds.

In viewing the site the Referee was disturbed by the unsightly berm or pile of boulders and cobble still existing south of the drain on the easterly portion of the Appellant’s property. This spoil could not reasonably be worked into the ground because of the large number of boulders associated with it. There appears to be no other remedy than that of hauling this material away so as to restore the land to cultivation. It appears that the Township at one point in the proceedings generously offered to remove this spoil and Mr. Courtney refused to permit the same. However, what is abundantly clear is that the spoil berm must be dealt with and if it is not it will remain as a blight on the land, affronting everyone associated with the Carter Drain. I THEREFORE ORDER pursuant to the inherent powers of the Drainage Referee as set forth in Section 106 of the Drainage Act that the Township, at its own expense, undertake to remove this berm of spoil and haul it away. If Mr. Courtney indicates that he will take all or part of the material for use on his farm, then that may be done providing there is no undue delay.

All other claims of the Appellant are hereby dismissed.

In accordance with the request of Mr. Madorin, Q.C., Counsel for the Township of Huron, I have reserved my decision with respect to the matter of costs until such time as I receive written submissions from both the Appellant and the Respondent. I will require the written submissions from the Appellant be filed with me and Mr. Madorin within 25 days of the receipt of this decision. Thereafter, Mr. Madorin will have an additional 15 days to file his submissions with me.

DATED May 20th 1998

Delbert A. O’Brien, Q.C.

Ontario Drainage Referee

Court File No 171/93

IN THE COURT OF THE DRAINAGE REFEREE

BETWEEN:

LYNN COURTNEY

Appellant

-and-

THE CORPORATION OF THE TOWNSHIP OF HURON

Respondent

STATEMENT PURSUANT TO SECTION 114 OF DRAINAGE ACT, 1990 R.S.O. D-17

At the request of the Appellant and with the concurrence of Mr. Madorin, Q.C., Counsel for the Respondent, I attended at the farm of the Appellant to view the area of the Carter Municipal Drain which is the subject of the litigation. We journeyed approximately 75 km. north of the Goderich Court House where the Hearing was being conducted to the site on Concession Road 10 north of the Village of Ripley. I was accompanied at the farm by Mr. Madorin, his assistant Ms. Laurence, Mr. Courtney and the latter’s mother, Mrs. Courtney Senior. The ground was only slightly snow covered so that the observation of the site was not unduly impeded. We first travelled in a vehicle across the north end of the farm along Concession Road 10 and down each lateral sideroad to view the Carter Drain at points east and west beyond the Courtney property. We then drove south on the Courtney driveway past the house and outbuildings to a point where the open drain crossed the Courtney property running east and west. Led by Mr. Courtney we then walked along all of the south bank of the Drain and along part of the north bank.

I observed a large open drain with a width visually estimated to be 15 – 20 feet from bank to bank with a variable depth averaging approximately 6 – 10 feet. The flow at the time was contained in a low flow channel meandering back and forth across the bottom of the wider channel. The banks, although sloughing to a limited degree in a few places, were largely well vegetated and stable.

There was one crossing to serve the Courtney property in the centre of the farm which was constructed with large cement tiles providing ample capacity and with considerable rip rap support. However, I observed that a small channel flow had developed around and under the south side of the cement tiles which could present a problem in the future.

We observed a number of outlets from underground tile emptying into the Carter Drain from both the north and south sides, one of which was the Lowery Municipal Drain. I observed at least one area where water appeared to be noticeably flowing into the Drain which Mr. Courtney described as a natural gravel seam drain. Mr. Courtney attempted to demonstrate with the use of “witching rods” the general area of other underground flows. There was a limited area west of the crossing where the stone rip rap had apparently slid a foot or more down the side of the south bank where it had been placed over a filter cloth.

I observed two flow control structures in the Drain, one immediately upstream of the Courtney crossing and the second at the west end of the Courtney property. Both appeared to be stable and functioning well. The spoil area north of the Drain has been largely cultivated to the edge of the Drain except in an area surrounding a pond just upstream of the crossing. Mr. Courtney pointed out an area where the old watercourse had been filled in to straighten the Drain and where he had dug two test holes. These holes indicated a deep spoil area of perhaps 20 inches containing much clay over a lighter sandy loam soil which covered a lower clay layer 3 – 4 feet deep. One might assume these two holes, which were in close proximity, were representative.

South of the Drain, particularly east of the crossing, approximately 15 – 20 feet from the Drain was a pile of spoil several feet deep and approximately 8 – 10 feet wide, composed of rock, subsoil and topsoil, all mixed together. It not only prevented cultivation of the area but it interfered with surface water flowing toward the Drain. In several spots the soil appeared quite saturated immediately south of this berm. This berm appeared to have resulted from the construction work on the Drain.

The Courtney fields on both sides of the Drain were in cultivation and surface flows on both sides appeared to be toward the Carter Drain.

At the front of the farm (north) the field on the east side was in pasture, being adjacent to the farm buildings. This field was serviced mainly by the Lowery Award Drain whereas the field to the west was served by the Lowery Municipal Drain. More moisture appeared to be present on the surface of the easterly field (8.5 acres). A low spot in the east field was pointed out by Mr. Courtney located in the south east corner where it was bounded on the south by the old Railway Bed. All the farms in the immediately area appeared to be mainly highly developed cash crop farms. The Courtney neighbours on both sides had cultivated and worked the spoil areas on both the north and south sides of the Carter Drain. Mr. Courtney was equipped to handle livestock, particularly sheep, but they were not evident the day of our visit – residing, I was told, on another Courtney farm.

DATED: January 22 l998

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee

Court File No 171/93

IN THE COURT OF THE DRAINAGE REFEREE

ONTARIO COURT (GENERAL DIVISION)

BETWEEN:

LYNN COURTNEY

Appellant

-and-

THE CORPORATION OF THE TOWNSHIP OF HURON

Respondent

DECISION WITH RESPECT TO COSTS

In a Decision of the Ontario Drainage Referee dated the 20th day of May, l998 with respect to the above mentioned matter, the issue of costs was reserved and provision made for written submissions. Accordingly, written submissions were received by the Court from both the Appellant and the Respondent and were considered by the Referee.

The Appellant claimed a total of $46,159.04 with respect to costs arising in matters proceeding before the Drainage Referee. In addition, he claimed the sum of $3l,889.06 with respect to matters before the Ontario Drainage Tribunal.

The Appellant further broke down his claim of $46,159.04 as consisting of:

$35,409.60 with respect to time spent in preparation and appearances before the Referee;

$6,260.90 in disbursements; and

$4,407.54 with respect to mileage remuneration.

The Appellant charged his time at the rate of $l0.00 per hour for a total of 3,549.06 hours. He sought remuneration with respect to his mileage at the rate of $.29 per kilometer, claiming total kilometers of l5,198.4. With respect to his claim of costs before the Ontario Drainage Tribunal, they were broken down as follows:

$26,l0l.0l with respect to fees for professionals in 1992;

$l85.00 with respect to mileage and parking (1992);

$5,469.55 with respect to fees for professionals in 1994;

$33.50 with respect to mileage and parking (1994);

Dealing first with the issue of entitlement to costs for proceedings before the Ontario Drainage Tribunal, the Court has no difficulty whatsoever in finding that there is no basis for awarding the same. The Ontario Drainage Tribunal, in its Decision, specifically awarded to the Appellant the sum of $l,500.00 in costs. The Appellant has not addressed this issue as a matter of an Appeal from that Decision. Further, Section 109 of the Drainage Act states as follows:

“The cost of any proceedings before the Referee are in the discretion of the Referee”.

This Section is specific in its reference to proceedings before the Referee and does not give jurisdiction to the Referee to deal with costs relating to proceedings before the Ontario Drainage Tribunal.

Dealing secondly with the request made by the Appellant, namely that the Referee alter the Lowry Award Drain Agreement and the Carter Drain Report. The Referee does not have any legal basis to make such an amendment for a multitude of reasons, not the least of which is the fact that the only issue to be addressed in this phase of the proceeding is the issue of legal costs. That claim must therefore be dismissed.

However in turning to the issue of the Appellant's entitlement to costs in “proceedings before the Referee” the Court finds that the Appellant is so entitled. The Referee acknowledges that the law of Ontario may well be such as to deny a litigant costs in circumstances where he or she is not represented by a Barrister. Such is not the tradition in proceedings before the Ontario Drainage Referee. It has been a long standing practice of both the Ontario Drainage Tribunal and the Ontario Drainage Referee to award costs in circumstances where a party is acting on his or her own behalf. Such a policy is justified because both agencies are specialized Tribunals which deal in circumstances where it is quite common for litigants to appear on their own behalf. Many litigants are farmers of limited means and it would be unjust in the circumstances not to compensate them for their time and expenses. In this particular case, the financial resources of the Appellant are modest and as he stated in his submissions he had no financial alternative but to appear on his own behalf. Section 109 of the Ontario Drainage Act is unlimited in its terms and grants unfettered discretion to the Referee in matters of costs.

Mr. Madorin, Counsel for the Respondent, in his submissions, indicates that he made an offer to settle dated the l4th day of July, 1997 in the amount of $5,000.00 for damages, pre-judgment interest and costs. Considering that the Appellant was awarded only $4,184.24 in costs, Mr. Madorin urges, while admitting that Rule 49 of the Rules of Civil Procedure is not binding on the Referee, that the Court exercise its discretion and reject any subsequent claim for costs. The Referee, however, finds on the evidence that the Award exceeded in value $5,000. Although qualified disbursements may not have made up the difference, the additional Order made by the Referee for the removal of the spoil berm involved costs to the Municipality that would have clearly exceeded the total amount of the offer of settlement. Accordingly, the Appellant is not disentitled to his claim for costs on the basis of the Offer made and not accepted dated the l4th day of July l997.

However, in awarding costs the Drainage Referee is bound by the general principles of law relating to costs which Counsel for the Respondent set forth in his submissions. An excerpt from Orkin- Law of Costs, Second Edition, Page 2 - 4 was submitted.

“A party's conduct both before and during the litigation process as well as the degree of success achieved are relevant to the exercise of the Court's discretion as to costs”.

That quote clearly sets forth the basic principle of the law applicable and in applying that measure the Court finds that the Appellant falls short on both counts. First, the proceeding was the most protracted prolonged and frustrating session ever experienced by this Drainage Referee. The fact that the Appellant chose not to have the assistance of legal counsel may well have suited his particular needs, but it subjected the Respondent to considerable extra expense. The Respondent was represented by a highly skilled and experienced counsel who was of great assistance to the Court and who showed remarkably forbearance in tolerating an unduly loquacious Appellant. The eleven days of court time consumed in this matter were unnecessary and substantially wasteful of valuable court time. It certainly represented a great and unnecessary expense to the Respondent and it can only be addressed responsibly with respect to the ruling on the matter of costs.

Accordingly, on that basis I find that the Appellant is entitled only to nominal costs. However, I have amended that consideration somewhat for two reasons which deserve consideration. Firstly, the Appellant did have genuine and justified out-of-pocket expenses with respect to witnesses, etc. Secondly, the Appellant did attempt to co-operate and his conduct in removing the spoil berm on his own initiative and thereby saving the Respondent considerable costs deserves some reward. Accordingly, I am awarding the Appellant somewhat more than nominal costs, namely the fixed sum of $4,500.00 inclusive of costs, interest and disbursements, the same to be paid forthwith at the cost of the Municipality. I have elected to fix the costs and disbursements so as to avoid further expenditure of court time in a matter that has already been much too wasteful of Court facilities. The Municipality is thus relieved of any further responsibility with respect to the berm.

DATED: December 29, l998

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee