REASONS FOR DECISION

The Appeal of Rondo MacSweyne was heard on the 24th day of November l997 in the Court House in Cornwall, Ontario. The Parties had filed consents to have the current Drainage Referee, D.A. O'Brien, hear the matter with the knowledge that he had briefly acted for the Appellant while in private practice several years previously. This Appeal had been pending for several years having been interrupted by the untimely death of the previous Referee. At the onset of the Hearing it was confirmed that the Appellant had agreed to permit the issue of the reconstruction or repair of the drain to proceed immediately. The issue of damages, it was agreed, would be considered at a second Hearing.

The Appellant requested, by way of preliminary motion, that the style of cause be corrected to reflect the current ownership of the land as a result of the unfortunate death of one of the partners, Ralph MacSweyne. Mr. MacKinnon, therefore, requested the Appellants be styled as Rondo and Barrie MacSweyne and the Estate of Ralph MacSweyne. The Referee therefore ordered that the style of cause be so amended.

The presence of Sidney VanderVeen, Provincial Drainage Co-Ordinator, was noted; and at his request the Ministry of Agriculture, Food and Rural Affairs was also added by Order of the Referee as Party of the Third Part.

The Appellant called, as his first witness, Kent MacSweyne, a brother of the owners who was very familiar with all details of the Drain including its history. He advised that the drain had functioned as an open ditch before 1974 very successfully. At that time a petition was filed to instal tile and the MacSweynes were under the impression that henceforth the Drain would function as a full enclosed drain. He advised that after completion of the work the following spring they suffered from extensive overland flows which inundated much more property than the previous ditch had and which caused severe erosion. After several years of continuous floods, he related that the MacSweynes filed an appeal with the Drainage Referee and a Hearing was held in 1982 before Referee William Turville. According to Kent MacSweyne, Mr. Turville faulted the MacSweynes for interfering with the work and granted a mandatory injunction to have the work completed in accordance with the Report of 1975. Further work was done under the direction of Greer, Galloway & Associates, Drainage Engineers but conditions did not improve. Mr. MacSweyne showed slides which illustrated flooding along the course of the drain over the MacSweyne property. He concluded by advising that many acres of their property along the course of the drain had since grown up in weeds and brush rendering those acres unavailable for cultivation. Also he noted that a significant portion of their field tile had been intersected by the swayle and had not been properly covered or connected. He concluded by stating that the drain was currently a mess and they favoured the appointment of an independent Drainage Engineering firm to prepare a new Report for the reconstruction of the drain, including a review of assessment. He requested a speedy decision so that a survey of the site could be conducted before severe winter weather set in. He also requested that the Drainage Referee take an immediate view of the site pursuant to Section 114 of the Act.

Mr. W.M. Barton, Drainage Superintendent for the Township of Lochiel, addressed the Referee indicating that he was called by Rondo MacSweyne to view the site before the appointment of Greer, Galloway & Associates by the Township. He had witnessed flooding, erosion and blowouts. He agreed at that time that something had to be done and he requested that Council appoint Greer, Galloway & Associates. Council, in its attempts to resolve the problem, obtained advice from H. H. Todgham, P.Eng. and Lascelles Engineering of Hawkesbury. Mr. Barton concluded by stating that currently work was required on the drain and he favoured the appointment of an independent drainage engineer to prepare a new report.

Sid VanderVeen, on behalf of the Ministry of Agriculture, Food and Rural Affairs, advised that the Ministry acknowledged a long standing problem which required remedial action and hoped that the appointment of a new engineering firm would resolve the problem.

Bruce Kirton, the adjoining upstream owner of Lot 33 Concession 7 stated that because of faulty design and/or construction, his water was prevented from entering the drain despite the fact that he was assessed.

It was thus apparent to the Referee that all parties were in agreement with respect to three important issues, namely:

(a) the drain was not functioning satisfactorily and ought to be repaired;

(b) an independent engineering firm ought to be appointed to prepare a new report;

The Referee therefore ordered:

(a) That the engineering firm of Spriet & Associates of London, Ontario be appointed with John Spriet, P. Eng. named as designated engineer to prepare a new Report for repair with assessment revision

(b) That a view of the site be taken by all interested parties at 3:00 o'clock in the afternoon on November 24 l997.

The Referee's Statement, pursuant to Section 114 of the Drainage Act is attached hereto as Addendum “A”. The Referee, after viewing the site was left with no doubt whatsoever that immediate action to repair the drain was required and that an immediate appointment of an engineering firm would permit a ground survey of the site to be made before severe weather prevented the same.

DATED January 26 1998

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee

Court File No. 97/

IN THE COURT OF THE ONTARIO DRAINAGE REFEREE

BETWEEN:

RONDO MACSWEYNE, BARRIE MACSWEYNE,

ESTATE OF RALPH MACSWEYNE

Appellants

-and-

TOWNSHIP OF LOCHIEL

Respondent

-and-

MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS

Party of the Third Part

STATEMENT OF DRAINAGE REFEREE PURSUANT TO SECTION 114 OF DRAINAGE ACT, R.S.O.1990 CHAP.

At the conclusion of the Hearing at the Cornwall Court House on November 24, l997, with the consent of all Parties, a view was taken of the site of the R.F. MacLennan Drain.

The Parties, Township Officials and some Assessed Owners marshalled onsite at 3:00 p.m. It was a desperately cold, raw and windy day with snow cover on the fields of approximately l5 cm. Accordingly conditions were less than ideal for observation of the rural watershed.

We commenced our tour at the upstream end of the main drain at the road crossing. I noted with surprise that a significant upstream area of the original R.F. MacLennan 1961 Drain was not included in the l975 Report of the Drain. It was apparent that substantial upstream flows entered the Drain at this point through a large culvert in the Road. Secondly I observed a considerable depth of water in the road culvert upon which an ice cover had already been established.

A short distance downstream along the road ditch was a low level dam across the threshold of the constructed swayle crossing the MacSweyne property, apparently designated to divert flows into the nearby catchbasin located at the boundary of the road and the MacSweyne property. The swayle contained no surface flows that could be observed but it appeared to be wet with pockets of ice. It was overgrown with grass and brush with an irregular width averaging by visual estimate several hundred feet.

Downstream, where the farm laneway crossed the Drain, Mr. Rondo MacSweyne pointed out areas where he stated the farm clay tile drains had suffered “blowouts”. These areas were adjacent to the Drain and were caused, according to Mr. MacSweyne, by insufficient cover resulting from the swayle construction.

We travelled further downstream close to the outlet in the Rigaud River where the MacSweynes pointed out that the outlet tile had been constructed, not according to the Report, but rather several hundred feet upstream thereby causing, according to Kent MacSweyne, an unfortunate alteration in the grade of the outlet tile. Without the Plans at hand this could not be verified, however it did appear that the tile outlet and the swayle outlet were in the same immediate area.

We travelled up the road to observe from the road the pressure relief pipe in the Branch 1 Drain and the inlet into the Branch 3 Drain where Mr. MacSweyne advised an open catchbasin had been constructed by the owner to relieve surface flooding on his property. This had the result, Mr. MacSweyne stated, of surcharging the Drain and causing severe surface flooding downstream across the road on the MacSweyne property around the surface pressure relief pipe. Observation could not confirm that allegation, both because no flooding was apparent at the time of our site visit and because of the snow cover. However a low depression in the upstream neighbour's property (Mr. Terry) was apparent, which would suggest a susceptibility to flooding and the area on the MacSweyne property surrounding the relief pipe was badly overgrown suggesting excessive moisture.

Finally, it was clearly apparent that the drain swayle included a significant acreage of the MacSweyne property, all of which was badly overgrown with tall grass and brush. This significant acreage was not in agricultural use and it was impossible to determine by observation alone whether it was solely caused by the nature of the Drain's construction or whether and to what extent the MacSweynes' farming practices had amplified its impact. Clearly it was a scar on the surface of this otherwise productive farm; and evidence of the surface erosion which must annually assault the modest Rigaud River was all too apparent. It appeared that this was a drainage project that had gone sour with severe negative impact on both the environment and the owners of the Drain.

DATED: January 5 l998

DELBERT A. O'BRIEN, Q.C.

Ontario Drainage Referee

D E C I S I O N

O'BRIEN, R: (Orally)

As I indicated earlier this phase 2 of the hearing will deal with the issue of assessment

Before we get into the particulars, I'm going to make a preliminary statement that I think should please most of the parties in the room and possibly displease some others. I'd like to indicate, and I think it's necessary to indicate at this time so that everyone has knowledge of my intentions before we discuss the issue of assessments, I have dealt with this drain in a previous hearing and heard evidence such as led me to believe that there should be some assessments made, special one-time assessment and I'm inclined to do those, subject to allowing those Parties to make representations to me with respect to those assessments. The parties are the Municipality which was originally Lochiel and now the successor municipality is the Amalgamated Municipality. The other Party is the Ministry itself and the assessment I speak of is beyond the one-third grant that is normally available. As you all know there is normally a one-third grant for agricultural lands.

Most of the lands, in fact I expect nearly all the lands in this particular assessment, will be eligible for that grant.

Beyond that, I am inclined to make a one time special assessment against the Ministry of Agriculture, Food and Rural Affairs in the amount of a further one-third. I'm also of the mind to make a further Order subject to submissions to be made. (I'm prepared to hold a hearing for either the Ministry or for the municipality, if they deem it necessary and request it). I'm inclined to make an Order for a one-time special assessment for one-third as well. In each case that will be one-third of Option A which is about $l62,000.00.

That means that there will be little or no assessment to the owners on this project other than the cost of Option 2 (or B). Option 2 (or B) is an improvement. It's significantly more than was designed before. It's an advantage to everyone in the watershed to proceed and that should be assessed to the landowners. It would be a very minimal assessment. And also to the owners will be assessed any additional cost of construction.

Now I anticipate, based on my experience with the excellent firm of Spriet & Associates, that construction costs should not come in significantly above what is estimated in the drain. But as we all know, occasionally there is a minor increased cost and any increased costs will be borne by the owners as well.

So I can indicate at this time, that there would be very minimal assessment to the owners and that is very good news. The owners in this watershed are very favoured in that regard, I want to tell you. You will be assessed on the basis of the assessment made by Mr. Spriet a very few dollars for the great benefit that you will get from this scheme. At this time I am going to decide that the option for l l/2” rainfall capacity be pursued. That will be an excellent system. It will look after everyone's needs. So I'm making that decision now.

I make that order subject to permitting the Municipality and subject to permitting the Ministry to make submissions and lead evidence as to why it shouldn't be so. I'm going to ask that I be advised of the position of the Ministry and of the Municipality within 60 days. I trust that reasonable in the circumstances.

O'Brien, R.

MacSweyne v. Lochiel (Township), 1998 ONDR 7

Case Summary

REASONS FOR DECISION

Ontario Drainage Referee

D E C I S I O N

MacSweyne v. Lochiel (Township), 1998 ONDR 7

Case Summary

REASONS FOR DECISION

Ontario Drainage Referee

D E C I S I O N