ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Belisle et al v. Alfred & Plantagenet 1999 ONDR 1
1999-05-27
1999-01
STATUTE:
Drainage Act
HEARING:
BETWEEN:
LOUIS BÉLISLE, CATHERINE BÉLISLE, JEAN-LOUIS PROULX, ROLLAND S. CHAMPAGNE, JEAN-MARC JUBAINVILLE, THÉRÈSE JUBAINVILLE, FIDÈLE JUBAINVILLE APPELLANTS
-AND-
THE CORPORATION OF THE TOWNSHIP OF
ALFRED AND PLANTAGENET
RESPONDENT
D E C I S I O N
The Appeal of the above mentioned Appellants were heard by the Ontario Drainage Referee on the 19th day of April, 1999 in the Ontario Court (General Division), L’Orignal, Ontario.
In addition to the evidence presented at the Hearing, written submissions were received at a subsequent date as permitted by an Order made by the Referee on that day.
The matter was initiated by a requisition for a drainage work filed by Estelle Lalonde on the first day of November 1996 with the Clerk of the Township of Alfred-Plantagenet. The requisition requested that an Engineer be appointed by the Council of the Municipality and that the Engineer appoint a time and place at which he or she would attend and examine the area in order to make a Report. The Township Council obliged and pursuant to Recommendation 7-97 ratified on the 17th day of February 1997 the Engineering Firm of Neil Levac Engineering Limited was authorized to examine the area of the Estelle Lalonde Municipal Drain and prepare a preliminary report.
Section 3 (6) of the Drainage Act under the heading ‘Requisition Drains’ reads as follows:
‘The council of the local municipality, upon the filing of the requisition, shall by by-law or resolution appoint an engineer to make an examination of the area and to make a preliminary report. ‘
Mr. Levac consequently and in accordance with the instructions of Council prepared first a preliminary report and secondly a final report which final report was dated the 31st day of July, 1997. The Report describes the drainage area of the proposed works as follows
‘The proposed drain would drain parts of Lots 28, 29 and 30 Concession 1, and Broken Front. Twelve owners are included within the watershed and assessed under the Report. The land use is predominately agriculture and is drained by an old water course which flows north under the old Highway No. 17 through a box culvert outletting into the Ottawa River. The total watershed consists of 24.55 hectares.’
He advised that Mr. and Mrs. Lalonde, the owners of the property on the west side where the water course had its outlet into the Ottawa River were motivated in seeking their requisition drain by the slumping of a portion of their adjacent property significantly towards the natural watercourse. This slumping, he concluded, would eventually threaten their residence. Mr. Levac observed that the deepening of the tributary and the steepening of the lower banks due to erosion were the major causes contributing to the instability of the banks. Mr. Levac, in outlining his reasons for recommending a municipal drain, advised that Mr. and Mrs. Lalonde had to take remedial action to preserve their property, but they were unable to do so without running the risk of liability claims for interfering with the natural watercourse. He also reasoned that the Municipality had no right to enter the private property for the purpose of maintaining the water course. Finally, he advised that a municipal drain would allow the cost of the work to be fairly apportioned between all the various parties benefitting
After inspecting the site the Drainage Engineer made the following comments: (page 6 in his Report)
‘The watercourse coming through an existing 1200 mm concrete box culvert under Old Highway 17 flows along a relatively shallow ravine to the Ottawa River. Over the years, it appears that some fill was placed along each slope as a means of terracing the adjacent properties. The amount of fill has not been determined as part of this report. It was also noticed that long term erosion of the stream bed has lowered the base of the embankments by about 600 mm. The erosion is especially apparent at the concrete box culvert where the footing now lies exposed.
A slope stability analysis was performed on existing cross sections of the ravine. The analysis was performed for both sides of the ravine. Three cross sections were chosen for the analysis, one before the slope failure, one where the slope failure occurred and one after the slope failure. The cross sections are shown on the Drawing L9622-1, attached.
The results of the analysis indicated that the slopes along the section located before the slope failure have a factor of safety against slope failure marginally greater than 1.5. However, the slopes located along the other two cross sections indicated factors of safety below 1.5 but greater than 1.0 which indicates marginally stable slopes. The existing large trees presently in the slopes appear to be contributing largely to the stability of the slopes by retaining soil and lowering the groundwater table.
A slope is considered stable if the factor of safety against slope failure is greater than 1.5. When the factor of safety against slope failure is equal to 1.0, landslide conditions are considered to exist.’
The Drainage Engineer, based on the above mentioned observations made the following
recommendations:
‘Our preliminary recommendation is to fill the bottom of ravine up to the underside (or inverts of the concrete box culvert while maintaining positive drainage to the Ottawa River. Prior to placing any fill, the bottom of the ravine will need to be cleared of debris, dead trees or obviously objectionable material. The fill material may consist of low permeability soil such as clay which is then covered with a geotextile fabric and a layer of rip rap stone to minimize erosion. Alternatively, the fill material may consist of blasted rock with a maximum aggregate size of 600 mm. The blasted rock may be placed directly over the clean subgrade with geotextile fabric placed along the embankments. The proposed fill cross sections are shown on Drawing L9622-1.
A slope stability analysis using the revised grades was undertaken and a factor of safety against slope failure greater than 1.5 should be achieved for all slopes.
Based on the proposed fill cross sections and the length of ravine to be filled, the amount of fill required is estimated in the order of 330 m3. A preliminary estimate of costs to undertake the recommended remedial work is in the order of $7,400.00 including engineering.
During construction, care must be given to protecting large trees on the slopes because of their active contribution to the stability of the slopes. For this reason, it is recommended that access to the site be provided along the Ottawa River. It is also recommended to consider carrying out the work during the winter, to take advantage of the added slope stability and bearing capacity of the frozen soil for construction traffic.’
The Drainage Engineer estimated the construction costs at the sum of $7,400.00 which sum he stated was realistic in view of the low cost quotation he had received with respect to blasted rock from the quarry only 2.7 miles from the site of the proposed work.
The Engineer broke down the assessment as follows:
Special Liability Assessment:
Mr. and Mrs. Lalonde 30%
Benefit Liability 30%
Outlet Liability 40%
Mr. Levac, in his concluding remarks, indicated that there were a number of unnatural developments which affected the natural watercourse and no doubt increased the velocity and volumes of flow. These consisted of:
(a) an 18’ overflow pipe that found its outlet in the natural watercourse immediately south of Old Highway No 17 and which provided for overflow capacity from the nearby sanitary sewer pumping station.
(b) there was currently a draft plan of subdivision for lands within the watershed.
(c) there was nearby construction of a new water tower (including a water treatment plant and a sewage treatment plant) which affected surface flows
(d) there was also nearby a cemetery which in the opinion of the Drainage Engineer was potentially at risk.
Mr. Levac concluded his observations by stating that all the above mentioned factors were taken into account by him when he concluded that the project was necessary for the ‘proper drainage of land’ which consideration he maintained involved both hydraulic concerns and maintenance concerns.
Louis Lemay P. Eng. also gave evidence in support of the project indicating that he had been retained by Mr. Levac to analyze the slope failure and provide a ‘Slope Stability Study’.
He indicated that erosion in the bottom of the natural watercourse north of the Old Highway No. 17 was at least 2 feet below the original level. He noted that the bottom of the watercourse was also 2 feet below the bottom of the concrete culvert under the Old Highway and that erosion was undermining the outlet of that culvert. He filed photographs in support of his evidence. He stated that in his professional opinion the slump of the land at the Lalonde residence was the result of erosion at the base of the natural watercourse. He concluded by stating that the 140 year old house was in danger if erosion continued, not immediately, but sometime in the future.
Mr. Lalonde presented evidence advising the Referee that he had purchased the property in 1984. He stated that the erosion had not become serious until 1990 when much more water appeared to flow through the road culvert. Mr. Lalonde advised that he and his spouse had been prepared to take remedial action totally at their own cost, but that they were advised by Township Officials that they could not interfere with the watercourse without the risk of incurring liability.
Mr. Jean-Marc Jubainville addressed the Referee advising that in his opinion the project was not one of drainage, but one of erosion control, serving the purpose of one owner only. He maintained that he personally witnessed the fact that much fill was added to the slope at the Lalonde property and that in his opinion this extra weight was what has caused the slumping in the slope. He also maintained that a small ditch at the front of the house had been filled up, which action may have impacted the site. He therefore urged that the project not proceed.
J. Claude Deziel of J. Claude Deziel & Associates, Urban and Rural Planning Consultants, in written submissions on behalf of Mr. Jean-Louis Proulx outlined various proposals. He advised that Section 3 (1) of the Drainage Act did not authorize this work since the proposed work was not intended to provide proper drainage of lands within a given area. He maintained that
‘None of the owners of land within the area identified in the engineer’s report including the individuals that filed the application require any works to drain their respective lands. ‘
He noted that on page 5 subparagraph 2 of the Engineer’s Report that the purpose of the work was to
‘take action to protect their residence from future slides caused by the instability of the slope due to erosion of the natural stream.’
Mr. Daziel further submitted that
‘This natural ravine has existed for hundreds of years and it appears to provide an adequate drainage outlet for the surrounding lands. The slopes in the study area were stable as indicated by the size and number of mature trees that grow naturally on both sides of the slope. With the introduction of fill material on the slope and at the top, the geometry of the slope was altered and the imported material added additional weight on top, thus reducing the factor of safety and the stability of the slope. Had the additional material not been placed on the slope, things would probably have remained the same for many years to come.’
Mr. Deziel concluded by proposing that the cost estimate provided by the Engineer did not represent the true cost and that it would be grossly exceeded before the Project was completed. He also requested that the Referee reject the proposed work on the basis that it simply did not comply with the requirements of Section 3 of the Drainage Act.
Mr. Houle Q.C. in his brief submissions, supported the representations of the Drainage Engineer. He stated that the Drainage Act which is remedial legislation should be interpreted liberally and expressed concern that the cost of continued litigation could easily exceed the total cost of this simple project.
At the conclusion of the Hearing, the Ontario Drainage Referee took a view of the site and his observations are recorded in the Statement entitled STATEMENT PURSUANT TO SECTION 114 OF THE ACT WITH RESPECT TO ME PROPOSED ESTELLE LALONDE MUNICIPAL DRAIN, which statement is available in the Referee’s file.
The Drainage Referee, having heard the evidence, read the submissions and taken a view of the site, arrived at the following conclusions:
(a) The issue to be determined by the Referee was the issue of whether or not the Drainage Report complied with the provisions of the Drainage Act. The jurisdiction of the Referee to make such determination is found in Section 47 of the Drainage Act. Section 47 of the Drainage reads as follows:
“Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a written notice of appeal shall be served upon within forty days after the mailing of the notices under section 40 or subsection 46 (2), as the case may be.”
(b) This drainage report relied on Section 3 (1) of the Drainage Act for its authorization. Section 3 (1) of the Drainage Act reads:
‘Where it is necessary, for the proper drainage of any lands, that a drainage works should be constructed thereon or constructed thereon... the owner of the land requiring or to be benefited by such drainage may file with the clerk...’
It appears therefore that the statutory authorization for a requisition drain requires ‘the drainage of any lands.’ In the circumstances of this case, the purpose was not the drainage of land, but rather the prevention of erosion. Mr. Levac the Drainage Engineer, quite candidly admitted that the purpose was erosion control and not drainage, but insisted that in his view, drainage maintenance fell within the definition.
Regrettably, I cannot stretch the meaning of the words ‘proper drainage of lands’ to encompass the circumstances of this case. Every case must stand or fall on its own factual basis. In this matter the erosion was not caused by an existing municipal drain, but rather by a natural watercourse. Here the singular objective appears to be erosion control.
I regret that I have to come to this conclusion because l acknowledge that the Drainage Act is remedial legislation and that it is to be interpreted liberally to secure broad aims of drainage. I do sympathize with Mr. and Mrs. Lalonde in their efforts to cope with a nasty, threatening problem. I have, however, no alternative but to order that the Drainage Report dated July 31, 1997 with respect to the Proposed Estelle Lalonde Municipal Drain be set aside as not complying with the provisions of Section 3 of the Drainage Act. I wish to emphasize, however, that this decision applies to requisition drains only.
I cannot avoid commenting in conclusion, however, that Mr. and Mrs. Lalonde may have a legal action against the Municipality. The cement culvert under Old Highway No. 17 may, and I repeat may, be the cause of the erosion complained of. A Common Law liability arises when there is a significant alteration of a natural watercourse if damages can be proven to be caused by such unnatural interference. In this case construction of the roadway across the natural watercourse together with the installation of a culvert may give rise to such a claim.
I THEREFORE ORDER THAT the Drainage Report and By-Law supporting it be set aside and disallowed.
I FURTHER ORDER THAT no costs shall be awarded with respect to this matter so that each Party will be responsible for his or her own costs.
DATED: May 27 1999
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee