ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
MacSweyne v. Lochiel (Township)
1998 ONDR 8
1998-10-19
1998-08
STATUTE:
Drainage Act
HEARING:
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
REASONS FOR DECISION
The Appeal of the MacSweyne family reconvened on the 2nd day of September 1998 in the Court House at Cornwall, Ontario. The purpose of the Hearing was to consider a Drainage Report prepared pursuant to a previous Order of the Drainage Referee made on the 26th day of January, 1998. Pursuant to that Order, John Spriet of the firm of Spriet Associates was appointed for the purpose of preparing a Drainage Report with respect to the R. F. McLennan Drain. As instructed, Mr. Spriet prepared a Drainage Report for the repair and improvement of the aforementioned Drain and filed the same with the Drainage Referee, which Report was dated August 13 1998.
The Report commenced by providing a brief history of the R.F. McLennan Drain which is quoted as follows:
“The R.F. McLennan Award Drain was originally constructed under an award dated July 22, 1903. There were four branches constructed under the award, namely, the Main Drain and the East, West and South Branch.
A report was submitted by L.P. Stidwell on February 13, 1961, under which the Main Drain and East Branch were reconstructed and made into open ditch municipal drains under the Municipal Drainage Act, R.S.O. 1960. The South and West Branches continued as award drains. The Main Drain was 4135 feet in length and the East Branch was 3950 feet in length.
The drain was last reconstructed under a report submitted by P. McNeely dated April 14, 1975. This report modified the existing municipal drain and extended it under a petition of the landowners. The following work and modifications were made through this report:
a) The Main Drain open ditch, north of County Road 24 was replaced with a tile drain and swale system. The Main Drain across Road 24 and upstream for 1800 feet remained as an open ditch municipal drain in accordance with the 1961 report.
b) The East Branch open ditch remained municipal as incorporated under the 1961 report.
c) The old 1903 award West Branch became a municipal drain and was designated as Branch No. 1. It consists of 1573 feet of tile and swale on the north side of Road 24, and 2257 feet of open ditch across Road 24 southward into Lot 35, Concession 6.
d) A new Branch No. 2 tile drain was constructed for 460 feet in Lot 36 to connect to Branch No. 1.
e) The old 1903 award South Branch became a municipal drain and was designated as Branch No. 3. It consisted of 420 feet of tile drain north of Road 24 and 700 feet of tile drain across and south of Road 24.
The work involving the 1975 report was undertaken except for some of the swale construction. A review of the file indicates that an order to complete the swale construction was given by Drainage Referee Turville, and this was carried out between 1986 and 1988.”
The Report then outlined existing drainage conditions as follows:
“A site meeting with respect to the project was held on December 8, 1997. A field survey was made along the course of the drain and watershed limits were measured in several locations. Landowners, who were able to attend provided information with respect to the existing drainage conditions and the 1975 tile construction. Additional field work was undertaken on April 20, 1998 to determine the elevation of the tile, as‑constructed, with respect to the original benchmark.
The following is a summary of the variations found between original design and as‑constructed tile and swale details:
a) The length of the main drain tile, as installed, is 53 meters ± (175 feet) less than design.
b) The main drain tile was installed as much as 0.7 meters (2.3 feet) higher than the design grade.
c) The tile and swale locations, as‑constructed, are directly opposite to the plan.
d) The swale elevation, as‑constructed, is up to 0.6 meters (2 feet) lower than designed.
e) At Sta.0 + 450 main drain, the tile is exposed in the bottom of the swale because of improper tile and swale grades.
f) The lane culvert at Sta.0 + 488 main drain is 0.75 meters lower than the design grade for the swale.
g) The actual grade of the main drain tiles, 400mm (16”) and 300mm (12”), are not a uniform 0.5% as designed. A portion of the 400mm tile is at 0.3% and part of the 300mm tile is at 0.2% . These grades reduce the theoretical tile capacity by 22% and 37% , respectively.
h) The design outlet grade of the main tile is approximately 0.4 meters (16 inches) below the present river bottom grade while the as‑constructed tile outlet grade is 0.4 meters higher which is at stream bottom.
i) The existing swale elevation on Branch No. 1 is up to 0.5 meters lower than designed for the lower 230 meters and the swale does not exist upstream of the junction of Branch No. 3.”
The Report clearly confirms the issues upon which the Parties had previously reached a consensus, namely that the construction of the drain both in 1975 and in subsequent work was faulty. It notes that the original 1975 Drain had a design capacity of only 9.0 mm. That drainage co‑efficient was further reduced by improper grade installation by 22 to 37 percent. The Drainage Engineer indicated that not only was the old design gravely impaired by faulty installation, but now would be impossible to reconstruct inasmuch as its design grade would now be above current ground level. Further the fact that the swale had been constructed much below the design level resulted in private tile drainage outlets on one side of the drain being severed and not connected as was provided in the design.
Therefore, the new Drainage Report provided for the abandonment of most of the old Municipal Drain. It recommended that new tiles be installed in place of the abandoned Main Drain and Swale, the Branch No. 1 and Swale, and the Branch No. 3 and Swale. The new Report provided for two design options. Option A provided for a drainage co‑efficient of 25 mm while Option B provided for a drainage co‑efficient of 38 mm. Because of limited cover, the Report proposed that the Main Drain near the outlet at the Rigaud River incorporate a twin tile design. The deep swale was to be eliminated and a grass waterway was proposed for the lower portion of the Main Drain along the course of the twin tiles.
The total estimated cost for Option A, outlined by the Engineer in Schedule “B” was $162,900.00. The total estimated cost for Option B was estimated to be $179,600.00.
A brief summary of the proposed work was outlined in the Report as follows:
“(a) Twin Main Drain tiles from the river to the junction of Branch No. 1.
(b) One single Main Drain tile from the junction of Branch No. 1 south easterly to the culvert under road 24. The new tile invert, opposite this large surface pipe, is designed to be 0.70 meters ± below the surface pipe invert.
(c) One single Branch No. 1 tile from the Main Drain junction to the culvert under Road 24.
(d) One single Branch No. 3 tile from the junction with Branch No. 1 to the culvert under Road 24.
(e) Eight ditch inlet catchbasins at key locations along the drains.
(f) The elimination of the deep swale that now exists, by backfilling with material from each side. A grass waterway is proposed for the portion of the Main Drain along the course of the twin tiles.”
The Drainage Report provided allowances for damage to lands and crops caused by construction pursuant to Section 30 of the Act and for right‑of‑way pursuant to Section 29. The total allowances were quite modest in total sum, namely $1,510.00.
The Drainage Engineer, as requested by the Referee, provided assessment schedules, both for construction and for maintenance. The assessment schedule for construction of Option B is attached hereto as Appendix A”. It should be noted that the extra cost for the enlargement of tile for the implementation of Option B is assessed substantially against the MacSweyne property. At the conclusion of his remarks, John Spriet, P.Eng., Drainage Engineer, recommended Option B as the preferred Option in his opinion.
Mr. Sid VanderVeen, representing the Ministry of Agriculture, Food and Rural Affairs, had no criticism of the Drainage Report and indicated that in his experience the Drainage co‑efficient of 1” or 25 mm was becoming the accepted Provincial standard. He, however, made no recommendation as to which Option should be implemented.
Peter S. Chisolm from the University of Guelph, School of Engineering, spoke on behalf of the Appellants. He first stated that in his opinion the new Drainage Report was excellent and was substantially supported by Mr. MacSweyne. He then addressed a series of questions to the Drainage Engineer, many of which dealt with technical points for which the Drainage Engineer had answers that satisfied Mr. Chisolm. However several questions raised issues that had not been specifically determined in the Report. The first related to the abandoned tiles and whether or not they would be destroyed as part of the construction. Mr. Chisolm recommended that they be crushed in place. He ,proceeded by urging, on behalf of Mr. MacSweyne, that the existing small abandoned drains in Branch 1 and 3 be left connected to the system. Mr. Chisolm further requested that before re‑grading be undertaken along the course of the swale that a thorough investigation be conducted by a soil expert. He stated that such an investigation was necessary to ensure that the restoration programme resulted in maximum rehabilitation of the soil's productive capacity.
Finally, Mr. Chisolm requested that the grass waterway proposed at the downstream end of the drain over the twin drains be eliminated so that Mr. MacSweyne could work through the area with agricultural machinery. Mr. Chisolm assured the Referee that Mr. MacSweyne would follow good soil conservation practices so that drain and/or the environment would not be adversely affected.
Several other owners directed questions to the Drainage Engineer and appeared to be satisfied with the answers given.
Having heard all the evidence given and the submissions made, the Drainage Referee arrived at the following conclusion:
That the design proposed in the Drainage Report was excellent and with minor modifications would provide a much superior level of drainage for owners within the watershed.
That the 1975 installation together with subsequent modification was severely flawed and failed to provide the assessed owners with satisfactory drainage. In particular the failure of the system visited annually upon the MacSweyne family caused a great measure of grief. The Municipality was responsible for the faulty installation and therefore must accept the burden of a substantial portion of the cost of repair. Consequently, a one time special assessment of the Municipality would be warranted.
That the Ministry of Agriculture, Food and Rural Affairs must share in the burden of repair, not because of any failure on the part of the Ministry, but rather to relieve the assessed owners from paying a second time for an adequate drainage system. The 1975 construction was undertaken during a period when the Federal Government of Canada provided a one‑third contribution to drainage projects and as a result Federal Officials at one point in time acknowledged a responsibility to share in the cost of the R.F. McLennan repair even after the programme had ended. However, that offer has been unilaterally withdrawn and only the Province can step into the breach to ensure that equity prevails. All involved Parties, including the Province, share some blame for the long delay which characterized the resolution of this matter. Accordingly, this Court has decided that a special one‑time assessment against the Provincial Ministry is deemed necessary. Such an Order is in response to an absolutely unique situation and can by no means be considered to set a meaningful precedent.
That the MacSweyne farm over the years has suffered unusual and prolonged damage to its productive soil in the area of the Drain. Accordingly, the Referee is of the opinion that some technical soil expertise is required to ensure the maximum rehabilitation of the soil. For that purpose a special damage allowance is required.
The Referee agrees with some of the further recommendations made by Mr. Chisolm, namely that the existing tile in Branch 1 and 3 should be connected to the new System, that the larger tile along the Main Drain be crushed in place where practical, and finally that the grass waterway near the outlet of the Main Drain be dispensed with ‑ provided adequate remedial measures are ensured.
Finally, that Option B, with estimated extra constructed costs of approximately $16,000.00 was justified because it proved a 50 % capacity increase.
The Referee is of the opinion that the increase capacity to 1 1/2” or 38 mm per 24 hours of run‑off capacity is necessary in the circumstances of this case because of the traditional heavy spring run‑off. It will benefit everyone in the watershed, allowing for speedy evacuation of water from the upstream open drain and from other upstream properties such as the property of Mr. Terry where there has been a history of ponding in times of heavy run‑off. The financial burden of this increase in capacity should be shared by all owners.
ORDERS
The Ontario Drainage Referee therefore Orders:
(a) That the Drainage Report be approved by the Township of North Glengarry with the following amendments:
(i) That the Option B proposal be adopted.
(ii) That the old abandoned tile in Branch 1 and 3 be connected to the new system at the time of construction but remain as private tile and not be maintained as part of the Drain.
(iii) That the grass waterway at the downstream end over the twin tiles be deleted from the Report and that the Drainage Engineer amend the Report by providing a proviso that the owner, Mr. MacSweyne, or subsequent owners, be fully responsible for proper maintenance for that area of the Drain; and That Mr. MacSweyne, or subsequent owners of Property Roll No. 16‑13000, be required to pay exclusively for any repairs required to maintain proper cover, limit erosion, and repair any damage caused thereby to the Drain.
(iv) That the Municipality of North Glengarry pay toward the cost of construction of the Drain a one time special assessment in the sum of $55,000.00 and further that the Ministry of Agriculture, Food and Rural Affairs, pay a one time special assessment for the construction of the Drain in the sum of $55,000.00.
(b) That the cost assessed against the roads for construction be paid as set forth in Schedule “C” for the construction of Option A calculated in accordance with revised costs. The balance of the costs including preparation of the Report, Hearings and Supervision be assessed in accordance with the ratios provided in Schedule “C” for the construction of Option A. The normal O.M.A.F.R.A. one‑third grant will apply.
(c) That a special additional allowance be granted to the property of D. MacSweyne, Roll No. 16‑13000, to cover the costs of obtaining a soil specialist, doing soil rehabilitation and soil restoration work. This allowance is to be in the sum of $17,000.00 and must be expended for the above mentioned purpose.
That the appointment of the soil specialist be done in consultation with the Drainage Engineer and the work of restoration be supervised by him in accordance with the recommendation of the soil specialist.
(d) That at the conclusion of the construction work, after all costs have been ascertained, the Referee will be available for a further Hearing to deal with all matters, including construction matters, assessments and allowances respecting all Parties.
DATED: October 19 1998
Delbert A. O'Brien, Q.C.
Ontario Drainage Referee
APPENDIX “A”
17
HECTARES ROLL NUMBER
CON. LOT AFFECTED (OWNER) BENEFIT OUTLET TOTAL
OPTION B ‑ 38mm DESIGN
MAIN DRAIN ‑ STA.0 + 000 to 0 + 370
6 32 3.70 14‑11000(B. & H. MacSweyn) $ 940.00 $ 940.00
6 32 0.27 14‑10200(B. & L. Urquhart) 100.00 100.00
6 33 9.30 14‑12000(B. & J. Kirkton) 2,340.00 2,340.00
6 33 17.00 14‑13000(R. Brockman) 4,280.00 4,280.00
6 33 0.40 14‑13100(L. C. Robinson) 100.00 100.00
6 34 20.20 14‑14000(W. & D. Terry) 5,090.00 5,090.00
6 34 19.00 14‑15000(W. & D. Terry) 4,790.00 4,790.00
6 35 19.80 14‑16000(W. & D. Terry) 4,990.00 4,990.00
6 35 11.50 14‑17000(M. Campbell) 2,900.00 2,900.00
6 36 6.90 14‑18000(M. Campbell) 1,740.00 1,740.00
7 33 7.30 16‑11000(M. McGillivray) 1,840.00 1,840.00
7 33 0.86 16‑10000(L. Robinson) 220.00 220.00
7 33 9.60 16‑10500(B. & J. Kirkton) 2,420.00 2,420.00
7 34 19.00 16‑13000(D. MacSweyn) 52,360.00 3,290.00 55,650.00
7 35 6.00 16‑14000(D. McLeod) 1,500.00 1,500.00
7 35 1.20 16‑15000(E. & B. Nixon) 300.00 300.00
Total Assessment on Lands $ 52,360.00 $ 36,840.00 $89,200.00
Cty. Rd. No.24 3.00 Counties of Stormont,Dundas & Glengarry $2,300.00 $2,300.00
Total Assessment on Roads $ $2,300.00 $2,300.00
Total Assessment on Main Drain Sta.0+000 to 0+370 $91,500.00
18
HECTARES ROLL NUMBER
CON. LOT AFFECTED (OWNER) BENEFIT OUTLET TOTAL
MAIN DRAIN ‑ STA.0 + 370 TO 0 + 772
6 32 3.70 14‑11000(B. & H. MacSweyn) $ $810.00 $ 810.00
6 32 0.27 14‑10200(B. & L. Urquhart) 100.00 100.00
6 33 9.30 14‑12000(B. & J. Kirkton) 2,100.00 2,100.00
6 33 17.00 14‑13000(R. Brockman) 3,800.00 3,800.00
6 33 0.40 14‑13100(L. C. Robinson) 100.00 100.00
6 34 16.70 14‑14000(W. & D. Terry) 3,730.00 3,730.00
6 34 3.70 14‑150001W. & D. Terry) 810.00 810.00
7 33 7.30 16‑11000(M. McGillivray) 1,630.00 1,630.00
7 33 0.86 16‑10000(L. Robinson) 200.00 200.00
7 33 8.00 16‑10500(B. & J. Kirkton) 1,350.00 1,800.00 3,150.00
7 34 6.00 16‑13000(D. MacSweyn) 20,350.00 710.00 21,060.00
Total Assessment on Lands $21,700.00 $ 15,790.00 $37,490.00
Co. Rd. No. 24 1.50
Counties of Stormont,Dundas and Glengarry $3,300.00 $1,010.00 $4,310.00
Total Assessment on Roads $3,300.00 $1,010.00 $4,310.00
Total Assessment on Main Drain Sta.0+370 to 0+772 $41,800.00
Total Assessment on Main Drain $133,300.00
BRANCH N0. 1 ‑ STA.0+000 TO 0+476
6 34 3.50 14‑14000(W. & D. Terry) $560.00 $ 560.00
6 34 15.40 14‑15000(W. & D. Terry) 2,460.00 2,460.00
6 35 19.80 14‑16000(W. & D. Terry) 3,710.00 3,710.00
6 35 11.50 14‑17000(M. Campbell) 2,920.00 2,920.00
6 36 6.90 14‑18000(M. Campbell) 2,340.00 2,340.00
6 34 2.00 16‑13000(D. MacSweyn) 6,500.00 240.00 6,740.00
7 35 4.50 16‑14000(D. McLeod) 10,200.00 1,120.00 11,320.00
7 35 1.20 16‑15000(E. & B. Nixon) 1,120.00 410.00 1,530.00
Total Assessment on Lands $17,820.00 $ 13,760.00 $31,580.00
Cty. Rd. No. 24 1.50
Counties of Stormont, Dundas and Glengarry $1,700.00 $1,020.00 $2,720.00
Total Assessment on Roads $1,700.00 $1,020.00 $2,720.00
Total Assessment on Branch No. 1 $ 34,300.00
19
HECTARES ROLL NUMBER
CON. LOT AFFECTED (OWNER) BENEFIT OUTLET TOTAL
BRANCH N0. 3
6 34 3.50 14‑140001W. & D. Terry) $370.00 $ 370.00
6 34 15.40 14‑15000(W. & D. Terry) 1,620.00 1,620.00
6 35 16.80 14‑16000(W. & D. Terry) 1,760.00 1,760.00
6 35 5.50 14‑17000(M. Campbell) 570.00 570.00
7 34 1.00 16‑13000(D. MacSweyn) 4,350.00 50.00 4,400.00
7 35 ‑ 16‑14000(D. McLeod) 850.00 850.00
Total Assessment on Lands $ 5,200.00 $4,370.00 $9,570.00
Cty. Rd. No. 24 0.40
Counties of Stormont,Dundas & Glengarry 2,300.00 130.00 2,430.00
Total Assessment on Roads $2,300.00 $130.00 $82,430.00
Total Assessment on Branch No. 3 $12,000.00
Total Assessment on R.F. McLennan Drain ‑ Option B $179,600.00
The above lands noted with an asterisk are classified as non‑agricultural.