ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Bosanquet (Town) v. Eizenga et al

1999 ONDR 2

DATE OF DECISION:

1999-01-25

1999-02

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE TOWN OF BOSANQUET

APPELLANT

-AND-

ERIE EIZENGA, DAVID EIZENGA, DUNCAN STANTON, BASIL DOLMAGE, FRED BUCHANAN, DONNA BUCHANAN, R. ADAM DOLMAGE, MARK FRALEIGH, JOHN C. LESTER, WILLIAM CAMPBELL, JOYCE CAMPBELL, DON WOODLAND, NAN SUE WOODLAND, HOWARD LESTER, KEITH LEWIS, DOUGLAS JOHNSON, BARBARA DOLMAGE, JOE VANDENBERG, LESTEROSA SWINE-DAN LESTER, DON EVANS, BARB EVANS, RICHARD POPE, BRENDA SEATON, PETE SEATON, E. ANNE EDWARDS, ROBERT BRYANT AND KATHLEEN BURKE AND ALL OTHERS ASSESSED OWNERS ON THE COULTIS DRAIN

RESPONDENTS

D E C I S I O N

This matter came before the Ontario Drainage Referee on the 31st day of March l998 in the Ontario Court (General Division) at the Court House at Sarnia, Ontario. The application of the Appellants requested that the Drainage Referee make an Order as follows:

(a) that the proposed Extension of the Coultis Drain be considered as a proper work pursuant to Section 78 of the Drainage Act;

(b) that a further order be made pursuant to Section 106 (1)(d) and Section 106 (1) (f) of the Drainage Act suspending further proceedings and requiring the work to be done immediately on account of existing emergency conditions.

A brief history of the Coultis Drain and related proceedings is necessary for a complete understanding of the issues as they arose at the Hearing. The Coultis Drain, which was originally established in l884 and subsequently improved in 1907 provided for an open channel originating in the Town of Forest and extending for some miles to outlet in a natural watercourse eventually flowing to Lake Huron. The watershed area consisted of approximately 363 hectares, including 335 hectares of agricultural land, 19 hectares of urban land and 9 hectares of roads and highways. The extension proposed in the current Report incorporated part of a subdivision known as Glendale Beach increasing the total hectarage to 384 hectares.

In August of l995, the Town of Bosanquet was requested by the owners of Forest Cliff Camp to assist with the cost of replacing a culvert downstream of the outlet of the existing Coultis Drain. The original culvert had been washed out by a storm which occurred on June 2 l995. A petition was signed by the owners of the Forest Cliff Camp and Mr. Jim Monteith, a Drainage Engineer, was appointed on the l8th day of December 1995 to undertake an examination and to prepare a drainage report. Mr. Monteith recommended that the appropriate method to complete the work was to extend the existing Coultis Drain to a proper outlet using the provisions provided in Section 78 of the Drainage Act. Mr. Bill Veitch of MIG Engineering Limited replaced Mr. Monteith as Drainage Engineer on the project and prepared a Preliminary Report dated May 9 l995 providing for three alternative designs.

A final Report was presented to Council on June 16 of l997 and a Court of Revision was held on the 5th day of August l997. Several appeals followed and a Hearing of the Ontario Drainage Tribunal was conducted on the 23rd day of October l997.

At the commencement of the Hearing before the Drainage Tribunal, the Drainage Engineer advised the Tribunal that the Report was no longer sufficient due to significant changes that had occurred along the channel in the interval; and therefore the Ontario Drainage Tribunal ordered the Report be referred back to the Engineer for further consideration. A new amended Report was therefore prepared dated January 13 l998.

The Drainage Engineer, Mr. Veitch in his appearance before the Referee, advised that the storm which occurred in June of 1995 was of unusual intensity causing a washout of the culvert at the camp property which resulted in flows that were sufficiently great to de-stabilize the downstream areas of a ravine which had carried the waters of the Coultis Drain for over a century.

Mr. Veitch stated that, in his judgment, the ravine currently was eroding, the banks were slipping and the ravine was widening. He believed that adjacent homes were in danger and even a heavy rainstorm could cause significant damage in the present circumstances. He was therefore of the view that there was an “insufficient outlet” and that the Drain ought to be extended in accordance with the provisions of the Drainage Act.

In the cross examination conducted by Mr. Courey, Mr. Veitch admitted that the June l995 storm was a very unusual event, likely representing a l00 year storm event. He agreed that it was also a very isolated storm and that many inches of rain had fallen within a very short period of time. Mr. Veitch agreed that the increase in the size of the culvert on the Camp property would not increase the quantity of water passing through, but would increase the velocity of flows. He was of the opinion, however, that because of improved farming practices upstream, the Drain was experiencing increased rates of flow.

The Drainage Engineer advised that the best season for constructing the drain in the ravine area would be during the winter months, stating that the second best period of time would be during the late summer.

Mr. Veitch summarized his recommendations in his Report as follows:

• “Provisions for grubbing and cleaning of the low-grade section of open channel from the downstream of the existing Coultis Drain to the new culvert crossing for Forest Cliff Camp.

• Provision for allowances for the new 1800mm culvert installed by Forest Cliff Camp and the incorporation of said culvert as part of the drain.

• Provision of suitable velocity reduction and grade control devices and bank stabilization methods to retard the extensive channel and bank erosion occurring downstream of the culvert. The design provides for this channel stabilization for approximately 622m downstream of the existing Coultis Drain. When complete, the Coultis Drain can be considered an extension to a proper outlet.

• The design recommended provides for the use of bio-engineering techniques and natural material (rip-rap and rubble) which will allow for ease of future maintenance and access.

• The estimated total cost of the works required has been determined to be $252,800 which includes administration, engineering and taxes.”

Tenders had recently been received with respect to the project, the lowest of which was in the sum of $275,439.00 including G.S.T.

Mr. Waters, in his written submissions, argued and cited numerous authorities in support of the Appellant's position, namely that the Municipality was fully justified in extending the Coultis Drain to a sufficient outlet pursuant to the provisions of Section 78. He quoted Section 78 of the Drainage Act noting the wording “extend to the outlet”.

Section 78 (1) - Where for the best use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, re-construct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumps, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it or to consult two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in Section 4, but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report.”

Mr. Waters further argued that an emergency existed and the Referee was justified, pursuant to Section 106 (1) (d) and Section 106 (1) (f) in abridging proceedings and in ordering that the work be done immediately in response to emergency conditions. Section 106 (1) (d) provides that the Referee has authority

“to entertain applications for orders directing to be done anything required to be done under the Act;”

Section 106 (1) (f) provides

“over any other matter or things in relation to which application may be made to him under this Act”

He concluded by stating

“It is submitted that the erosion and deterioration which has occurred in the two years prior to the Hearing before the Referee is damage indicating a dynamic situation of an emergency nature and requires the residual jurisdiction of the Referee to be exercised”.

Mr. Paul Courey appeared on behalf of a group consisting of Dan and Nan Sue Woodland, Fred and Donna Buchanan, Mark Fraleigh, John Lester, Lesterosa Swine Limited, Barbara Evans, Adam Dolmage, Basil Dolmage, William Campbell, Barbara Hamilton, Joe Vandenberg, Doug Johnson, Howard Lester, David and Frederika Eizenga, John Fildaw and Duncan Stanton, being upstream owners of agricultural lands.

Mr. Courey advised there were two issues before the Referee, namely whether or not the Municipality was properly empowered by Section 78 of the Drainage Act to extend the Coultis Drain downstream and secondly, whether or not the Referee ought to take control of the entire process on an emergency basis.

He arranged the attendance of Mr. Bartlett, a Drainage Engineer of considerable experience, as a witness to provide expert evidence. Mr. Bartlett was of the opinion that the damage downstream which required protective repairs was 400m from the outlet of the existing Coultis Drain and was therefore too far distant to justify a work of extension pursuant to Section 78. He stated that the work should be considered a new Drain requiring a new Petition. Mr. Courey went further in his submissions suggesting that for all intents and purposes a natural watercourse intervened between the outlet of the old Coultis Drain and station 405 where significant work commenced. Therefore he argued that upstream owners were legally relieved of their responsibility for downstream damages. Mr. Courey further argued that there was a sufficient outlet for the Coultis Drain because of the extensive grade. He therefore submitted that a new Petition should be sought pursuant to Section 4 of the Drainage Act to provide for a “new area requiring drainage”.

With respect to the issue of an emergency, Mr. Courey argued that the Town was seeking to ignore the Tribunal and was engaging in forum shopping as a matter of convenience. He stated that the general jurisdiction of the Referee, pursuant to Section 106 did not override the specific allocation of authority under Sections 48, 54 and 101. Neither, in his view, did it displace the emergency power vested in the Minister under Section 124. He further argued that the winter season had already passed and that on the evidence of Mr. Bartlett that the best time to do the work was in late summer. He urged that there was sufficient time to permit regular procedures pursuant to the Act without resort to extraordinary remedies.

Mr. Stuart K. Kiar, provided written submissions on behalf of his clients, Robert Bryant, Richard Pope and others, referred to as “Cottage Owners”. He agreed that there were two issues before the Referee, namely (a) whether the municipality had acted properly, pursuant to Section 78 in extending the drain, as provided in the Report, and (b) whether an emergency situation existed such as to justify the Referee in abridging proceedings and ordering an immediate commencement of the work. However he also indicated that there were two other issues arising, namely (c) whether or not the Referee ought to order that the matter be referred back for a Preliminary Report to consider more cost effective alternatives and (d) whether the Referee had sufficient evidence to make any substantive decision without a further Hearing.

With respect to the first issue, Mr. Kiar argued that Section 78 clearly provided sufficient authority, quoting from the Section:

“for the better use, maintenance and repair of any drainage works....to make a new outlet for the whole or any part of the drainage works....to improve, extend to an outlet or alter the drainage works.... without the petition required in Section 4 but on the report of an engineer.”

Mr. Kiar stated that:

“the erosion risk to the cottagers along the ravine had been caused or at least significantly contributed to by the water accumulated in the Coultis Drain over its lengthy course and the Municipality has the authority, perhaps the obligation, to remove the risk by ensuring that the water is carried to a sufficient outlet.”

Mr. Kiar went on to submit that the Municipality had erred when it not only asked the Referee for confirmation of its powers pursuant to Section 78, but in addition sought to dispense with normal proceedings pursuant to emergency considerations. As a result, he argued, the cottage owners were required to assume additional legal Hearing expenses and for that he requested that costs be awarded at the expense of the Municipality.

With respect to the second issue, namely the Referee's jurisdiction in emergency circumstances, Mr. Kiar made the following written submissions:

“In the case at bar, the fact is that there is no urgency. There is no imminent risk to the health or safety of any person nor is it likely that any cottage will slip into the ravine within the time frames required to complete the Drainage Act processes and procedures. To the extent that these facts are not in evidence or may be unclear from the partial evidence heard to this point, as has been previously stated, that is the necessary consequence of the Referee's requirement for these submissions before the evidence is complete. In any case, for the purposes of these submissions on behalf of the Cottage Owners whose property and safety is alleged to be at risk, at least until they are afforded a chance to give their evidence about such matters, the Referee must accept their assertion that there is no urgency or emergency. Whatever the findings of fact after the evidence is complete, the facts cannot possibly warrant depriving the Cottage Owners of the opportunity to challenge whether the proposed drainage works will be effective for the purpose for which it is intended and to challenge whether it represents the preferred alternative solution to the drainage problem flowing from the Coultis Drain. “

Accordingly, Mr. Kiar requested that the Referee make an Order that the Report go back to be considered pursuant to Section 41 of the Drainage Act.

The third issue referred to by Mr. Kiar was the Cottage Owners' concern that the Municipality and the Municipal Engineer had failed or refused to consider more cost effective alternatives. He argued that there were several alternatives, namely:

(a) the purchase of the affected properties;

(b) the diversion of the Coultis Drain to outlet into the Elliott Drain; and

(c) the use of a closed pipe in the ravine in addition to the present proposal.

He further stated that, in his opinion, the municipality had disregarded the Tribunal's directive, namely the preparation of a new Report with new proposals. Consequently, Mr. Kiar requested that the Referee consider referring the Revised Report back with specific directions to consider alternatives.

Finally, Mr. Kiar claimed that the Referee had insufficient evidence on which to base any substantive decision as a result of the Hearing on March 3l l998. Mr. Kiar maintained “that the Hearing of March 3l l998 defied the most rudimentary principles of natural justice and fair play and that procedural fairness was sacrificed on the altar of expediency”. He further alleged that he was concerned about ex curia communication between the Referee and the Municipality which he apparently wished to test in cross-examination. Mr. Kiar therefore maintained that the Referee must afford all Parties the opportunity to lead further evidence.

Having heard the evidence and having read the submissions provided by the representatives of the various Parties, the Referee made the following findings:

1. Section 78 of the Drainage Act very clearly, concisely and explicitly empowers a municipality to extend an existing drain to a sufficient outlet without a petition and upon the report of an engineer. The Section could hardly be more explicit and is strengthened by the proposition that the Drainage Act is remedial legislation and requires a liberal interpretation. Such a theme is repeated again and again in the many legal authorities, both in text and in court cases. The words of Mr. Justice Garrow in the case of Orford v Aldborough 1912 CanLII 489 (ON CA), 27 O.L.R. 107 C.A. expresses clearly both the law and the object of the Act. It should be noted that Mr. Justice Garrow wrote many decisions involving matters of drainage on behalf of the Court of Appeal and was noted to have special experience in drainage law. He stated:

“There are waters brought to an old outlet and which flow beyond it, causing damage to the lands below. These waters occasion injury and the Engineer is justified in relieving them and assessing the lands which would cause the injury accordingly. This seems tersely to epitomize the case which we are called upon to deal”.

“Dealing now with the objections to jurisdiction before mentioned, and taking them in their order, I am quite unable to follow the learned counsel in his contention that a petition was necessary. The contention necessarily implies that, if there had been a petition, the objection would fail. I could more easily understand an argument that, even upon a petition, circumstances are such that relief cannot be lawfully granted; and that, that being so, there could be no relief, either upon petition or report - in view of the fact that we have here an intervening water course”.

“What is proposed is not the construction of a new drainage work, but merely the repair and improvement of an established system which, experience has proved, is defective in that lands and road along its water course are being flooded from year to year by overflow of waters for which the system provided no adequate or sufficient escape. Such case seems to me very clearly to fall within the express provisions of Section 77 (now Section 78) of the Municipal Drainage Act as to repairing upon report”.

“Fleming creek and Kintyre creek, both, although small, entitled in strictness to be called water courses, long ago lost their natural condition and became part of an artificial drainage system created under the drainage laws of the Province. The law permits that to be done and, when it is done, that part of the system which was once a natural water course is entitled to no particular immunity, under the law, over the other parts which are purely artificial. The whole must operate so as to discharge the waters when it should gather at proper and sufficient outlet. The law at least aims at affording complete relief from the common enemy, and not merely a nominal or paper relief, or the relief of one section of the locality at the expense of the other”.

This statement represents a clear statement of the law and an enlightened interpretation of the Act.

In the current Report the extension of the Coultis Drain from its current outlet to Station 405, even in circumstances where very little work is done in the intermediate area, is fully justified both from a practical point of view and from a legal point of view. In every circumstance it must be a question of common sense and good judgment in determining how far an existing drain can be extended pursuant to Section 78. Certainly cases will arise where the matter has been pressed too far and the extension cannot be justified; but such is not the case in this proposed extension of the Coultis Drain. Here the Township exercised the discretion clearly accorded to it by Section 78 of the Drainage Act after receiving petitions, threatening letters and entreaties from its ratepayers, some immediately downstream of the Coultis Drain, to ensure that the Coultis Drain was taken to a sufficient outlet.

Recognizing the heavy responsibilities placed on municipal councils by the Drainage Act, particularly with reference to Section 79 dealing with repairs and liability for failure to act, the drafters of the legislation gave unfettered discretion in Section 78 to act as they saw fit “ for the better use, maintenance or repair of any drainage works, 'including the right to make a new outlet' for the whole or any part of the drainage works ... to extend to an outlet”. The Section could hardly be more permissive and its intent clearly does not hobble the discretion of a council in looking after the needs of their ratepayers arising from municipal drains without adequate outlets.

There often appears to be a desire among some practitioners to repeatedly indulge in restrictive interpretations of the Drainage Act which interpretations are often supported by inappropriate application of ancient Common Law Rules. It was precisely because of the failure of the Common Law to deal adequately with the demands of modern agriculture that the Drainage Act was instituted. Happily, it completely supersedes the Common Law and introduces a system of municipal drains that is in every sense of the word under the domain of municipalities. The Act legitimizes a petition with only the single signature of the municipal road authority. Likewise, it has given unfettered discretion in extending an existing municipal drain even when there is the intervention of what could be described as a natural watercourse provided provision of a Drainage Report is commissioned.

The obligation to carry a municipal drain to a sufficient outlet is a major responsibility and the definition of a sufficient outlet is clearly set forth in the Act.

In Section 1 (d) “Sufficient Outlet means a point at which water can be discharged safely so that it will do no damage to lands or roads”.

Section 15 of the Act states that “subject to Section 32 every drainage works constructed under this Act shall be continued to a sufficient outlet”.

The only limiting factor in the circumstances is the application of common sense and the need to establish that the damage suffered can be attributed to the Drain.

2. With respect to the second issue of the need for extraordinary measures resulting from the emergency, I have no difficulty in finding that the circumstances which pertained at the time of the first hearing were not such as to justify any such measures. I was therefore not obliged to make an immediate order.

My opinion was substantially re-enforced by the position taken by the cottage owners as represented by their Counsel: namely, that they did not view the circumstances as constituting an emergency.

3. With respect to the remaining issues raised by Mr. Kiar, namely,

(i) that the Report be referred back for further consideration by the Drainage Engineer; and

(ii) that there was insufficient evidence on which any substantive decision could be based.

Certain matters unfolded in the subsequent spring and summer interval which made a decision respecting these issues unnecessary. The Referee received information that a new petition had been signed by various downstream owners and filed with the Municipality. In consultation with the Parties it was determined that the various alternative designs should be fully reviewed and considered in a subsequent hearing. Accordingly, arrangements were made and a further Hearing convened on the first and second days of September, l998 in the Ontario Court (General Division) in Sarnia.

HEARING: September 1 and 2 - 1998

At the commencement of the Hearing, Mr. Veitch reviewed the final design which was calculated to handle a 10 year storm. Mr. Veitch said that the 10 year requirement was because the area to be described as a hazard area consisted of a combination of rural and urban properties. The estimated construction cost was in the area of $250,000.00.

As the Hearing progressed, it became evident that most of the Parties attending who gave evidence were opposed to the level of cost proposed by the Drainage Engineer. Although there was a clear consensus that some work must be done, there appeared to be a common understanding that the cost was excessive and represented too great a burden on the ratepayers. Some of the upstream owners advised that they had not received adequate notice of proceedings, particularly of site meetings. They acknowledged that the Hearing provided them with an opportunity to present their views.

Mr. William Bartlett, P.Eng. was called by Mr. Courey as an expert witness. He agreed that there was a problem in the ravine which required a solution. However, he stated that the current proposals incorporated the wrong design and were entirely too expensive. He indicated that his investigations had revealed that the main cause of the deterioration of the ravine was the June 1995 storm with an 8” rain fall which represented a 250 year storm event. Mr. Bartlett urged that the design be completely revised to provide for a pipe system to be constructed in the ravine with a storm retention pond. He suggested that the pipe be sufficient for a two year storm with a minimum size being 36” and the retention pond have a capacity to provide for a storm of a 5 to a l0 year intensity.

Mr. McBride, acting on behalf of the cottage owners, also presented evidence. He said his clients were upset at the process but they wanted a solution.

Mr. McBride also suggested that there be a large berm at the lane-way of the camp for a retention pond with possibly 220 meters of piping with proper vegetation and a spillway. He indicated that he had not completed any engineering work but believed that the construction work could be done for approximately $125,000.00 to $150,000.00.

At the conclusion of two days of hearing, it was evident that the Parties had moved towards a consensus and that the Drainage Engineer representing the various parties would be willing to collaborate in a new and more cost effective design. It appeared to be acknowledged by all Parties at the Hearing that the cost of eliminating all risk was prohibitively expensive but that a new design which incorporated a higher level of risk could be constructed at an acceptable cost. As a consequence, at the conclusion of the Hearing, the Drainage Referee made an Order, a copy of which is attached hereto as Schedule “A”.

The Order provided for a new revised report to incorporate a substantial reduction in costs (a maximum cost limit of $200,000.00 for construction). The Drainage Engineering firm of MIG was to consult fully with Mr. McBride and Mr. Bartlett with respect to both assessment and design. The new Report was to be available by mid November. The matter was adjourned to the 14th day of December at which time the new design was to be considered, including assessments and allowances. The matter of cost was reserved to be determined at a further hearing.

HEARING - December 14, 15 - 1998

In accordance with the above mentioned Order, the Hearing re-convened on the 14th day of December 1998 in the Ontario Court (General Division) at Sarnia, Ontario at the hour of l0:00 a.m. Once again Mr. Robert G. Waters, Barrister and Solicitor, represented the Appellant Town of Bosanquet, assisted by the appointed Drainage Engineer, Mr. William Veitch, P.Eng.

Paul J. Courey, assisted by Mr. Bartlett, P.Eng., once again represented the upstream owners.

Mr. McBride, P.Eng. again appeared for the downstream cottage owners located in the Glendale Subdivision.

Mr. Waters advised the Drainage Referee that the new Report dated the 1st day of December 1998, prepared by MIG Consulting Engineers was a collaborative effort, both with respect to design and assessment. He advised that the only major area that remained unresolved was the issue of the maintenance assessment schedule. He further advised that all Parties wished to file a series of amendments to the Report, many of which were of a housekeeping nature which once again would be proposed as a matter of consent. The amendments were filed with the Drainage Referee as Exhibit No. 3 and are attached hereto as Schedule “B” to this Decision. The Drainage Referee therefore immediately ordered, in accordance with the application made, that the amendments filed as set out herein in Schedule “B” be incorporated into the Drainage Report dated the 1st day of December 1998.

The Clerk-Treasurer for the Town of Bosanquet, Mr. Adams, confirmed under oath that the new revised Report was circulated to all owners, giving them l0 days' notice, advising them of the time and place of the hearing and advising them, if they had any questions, to contact the Municipal Office.

The Drainage Engineer proceeded to advise the Referee of the major features and amendments in the new Report. He advised the Referee that after a series of meetings with Mr. Bartlett and Mr. McBride, he had taken the liberty of asking several companies to tender on the new design and that several tenders had been returned. The most complete and acceptable tender offer indicated that the total cost, including administration, for the construction of the drain, pursuant to the current design, would be $l87,253.41. He indicated that he was concerned about the cost issue and believed it was important, in view of the history of tenders exceeding the estimated cost, that an exact tender price be obtained. This tender return was well within the cost range set out by the Referee in the previous Order, namely the maximum construction cost of $200,000.

The major features of the new design was the incorporation of a pipe system with significant new structures on both the upstream and downstream ends.

The change at the upstream end was the removal of the culvert installed by the Forest Cliff Camp and replacement with a smaller pipe of 900 mm, which pipe extended all the way down to the downstream outlet. At the upstream end was to be installed a 1200 mm x 1200 mm catchbasin which was designed to accept the entire flow from the Coultis Drain up to a l0 year storm event. Behind the berm (e.g. the roadway into the Forest Cliff Camp) was to be established a retention pond where some minor excavation was to be done with the storage capacity sufficient to contain a 25 year storm. The berm itself was to be reinforced with rip rap to secure it in the event that it was over-topped by a flow exceeding a 25 year storm.

The design provided for the 900 mm pipe to be installed on the north side of the ravine, approximately 2 meters from the bottom of the water course.

Finally, at the outlet of the pipe was to be constructed a spillway and an energy dissipating device from which the flow was to be discharged into Lake Huron.

In conclusion, the Drainage Engineer advised that maintenance was critical, particularly with respect to keeping the upstream catchbasin free and clear of debris during high flow seasons. On cross examination, Mr. Veitch acknowledged that the previous Report had provided for a design criteria flow for a 10 year storm plus a safety factor and that the current Report compared favourably inasmuch as it provided for a 10 year storm event within the enclosed pipe and an additional capacity for a 25 year storm in the retention pond.

With respect to assessment, Mr. Veitch indicated there had been a compromise agreement with 66% assessed to benefit and 33% assessed to outlet. He indicated that there had been a difference of opinion with respect to the maintenance schedule, but that he had established a new maintenance schedule providing the rate of assessment at 50% of the benefit assessment in the construction schedule.

The Drainage Engineer was subject to a lengthy cross-examination with respect to the administrative and engineering costs. Considerable evidence was heard with respect to the same from both Mr. Bartlett and Mr. McBride outlining what, in their opinion, would be reasonable costs.

Mr. Evans was called as a witness by Mr. Courey and spoke on behalf of the upstream agricultural owners. He advised that he was much happier with this new proposed design and confirmed that he had acquired considerable experience in drainage construction. He further urged that the watershed at the upstream end within the Town of Forest be extended. It appears that he had done considerable research and filed with the Court a Report dated October 30 l998 prepared by Todgham & Case Associates Inc. The Report was apparently prepared for the Town of Forest and dealt with the Jefferson Street Outlet Drain and Union Street Storm Sewer. He quoted from the Report at page 3 under the heading “EXISTING CONDITIONS”:

“A detailed review of various drainage systems identifies a cross connection between the Union Street Storm Sewer and the Queen Street Drain, as well the Union Street Storm Sewer and the Jefferson Street Drain. The Union Street Storm Sewer intersects both the Queen Street Drain and the Jefferson Street Drain at a slightly higher elevation. Currently the downstream portion of the Queen Street Drain and the Jefferson Street Drain, west of the Union Street Storm Sewer, convey all these flows derived from the entire area located upstream from these intersections. Once the downstream drains have become surcharged, the Union Street Storm Sewer conveys the balance of the flows north to eventually discharge into the Coultis Drain. This drainage arrangement results in frequently surcharged storm sewers and tile drains which are undersized.”

Mr. Evans maintained that this Report conclusively proved that storm sewer flows from areas outside of the watershed in the Town of Forest were being carried to the Coultis Drain by the Union Street Drain and the James Street Drain. Accordingly he urged that the upstream watershed be expanded and the area assessed.

Mr. Bartlett, P. Eng. provided expert testimony advising that, in his opinion, the design was more than adequate and far exceeded the requirements of an agricultural drain. He stated that there was no need for a separate maintenance schedule and that the construction assessment schedule for maintenance was adequate. He indicated that he had viewed the aforementioned Todgham & Case Preliminary Report with respect to the storm sewers in the Town of Forest and in his opinion an additional 15 hectares ought to be assessed to the Coultis Drain consisting of 5 hectares of road and 10 hectares of urban lands. Mr. Bartlett indicated that he would recommend that the upstream watershed be expanded “south along Union Street to Clyde Street, thence to the north east forming a triangle to a point east of Main Street on the extension of Queen Street.

Mr. Bartlett further indicated that in the event of a 25 year storm that the storm sewer drains in Forest would quickly surcharge and flows including surface flows would be into the Coultis Drain.

Mr. Bartlett concluded by suggesting that a one time special assessment should be made pursuant to Section 66 of the Drainage Act against the landowners in the Town of Forest with respect to the use of the Coultis Drain during the previous approximate 20 years. This assessment for historical use could be used, in his opinion, to offset part of the construction cost of the current drainage work.

Mr. John Byrne, Clerk of the Town of Forest, appeared and presented evidence on behalf of the residents of the Town of Forest. He regretted that he had not had sufficient notice to permit him to acquire and bring legal counsel. He advised that the Todgham & Case Report did not provide the whole story and that Mr. McKenzie, whom the Town had employed for road construction, was more familiar with the particulars of the storm drain connection. Mr. Byrne advised that the Town of Forest was playing catch up with respect to the condition of its storm sewers and conceded that many were in very poor condition. He asked for an opportunity to provide further input with respect to proposed future assessment within the Town of Forest.

Mr. William Burke, appearing as a witness for Mr. McBride, being one of the residential downstream owners, indicated that he generally favoured the pipe solution which he felt would help deal with the toe erosion at the bottom of the channel. He believed, however, that some further work should be done in the ravine. He was of the opinion that the erosion along the top of the ravine could be locally handled if the toe erosion problem was contained. He concluded by stating that the engineering and administrative costs were excessive, that there had been too many reports. He maintained therefore that the Town should pay a greater portion of the engineering costs.

Mr. McBride also provided expert testimony. He stated that, in his opinion, the pipe design was the proper one and was cost effective. He further stated that the proposed design criteria, being a combination of a 10 year and a 25 year storm capacity was beyond the necessary standard and therefore adequate. Mr. McBride agreed with the testimony previously provided by Mr. Bartlett that the engineering costs with respect to the project were beyond the norm and therefore unjustified. He advised that, in his opinion, a reasonable engineering fee for a $200,000.00 project would be approximately $35,000.00. He also favoured the expansion of the watershed within the Town of Forest, including areas north of North Street. He believed a reasonable one time special assessment, pursuant to Section 66 of the Drainage Act for the Town of Forest, based on the increased hectarage of 15 hectares could fairly be calculated at the sum of approximately $l0,000.00. Mr. McBride concluded by urging that minor work be done in the bottom of the channel, particularly where it meanders, because the benefits would outweigh the minor costs involved.

Mrs. Turner, the downstream owner, appeared and presented evidence to the Referee. She indicated that they had not had much time to review the Report, but formally advised the Court that they wished to have the project proceed past their property.

Mr. David Marsh, appearing for the Forest Cliff Camp, advised the Referee that the retention pond presented a serious hazard to the children's camp. He advised that it should be fenced off.

Mr. Paul Courey, in his submissions, advised the Referee that it was important to make a decision with respect to the legal question relating to the proper use of Section 78 of the Drainage Act in the circumstances of this case. He urged that a decision be made to clarify the law with respect to this issue. He argued that a Petition ought to have been used in the circumstances of this case. Mr. Courey further argued that in this matter there never was sufficient grounds to support an emergency declaration such as to justify the Referee in assuming jurisdiction under Section 106 (l) (d) and (f) of the Drainage Act.

He further supported the view that there should be a special one time assessment made with respect to the Town of Forest pursuant to Section 66 of the Drainage Act. Mr. Courey urged that if a special safety fence was required by the Forest Cliff Camp, that it be assessed as a special assessment to the Camp.

Mr. Waters, in his submissions, advised that the Town had at all times acted in good faith, recognizing that there was a special risk involved in this project because of the downstream residential home locations. He noted that the project was made more difficult because there appeared to be three major groups involved, namely the upstream agricultural landowners, the Forest Cliff Camp and the downstream residential home owners. Thus conflicts could not easily be resolved and resulted in a series of reports. He concluded by stating that it should be recognized that this current project incorporated a greater risk factor arising as a calculated concession to lower costs. He urged that the issue of costs be dealt with in written submissions.

Having heard the evidence, together with the submissions of Counsel and the advice of the Drainage Engineers, the Referee made an oral Order. The Order involved the following terms:

1. That necessary revisions to the Drainage Report be made as filed in Schedule “B” and that the design as amended is approved.

2. That the Forest Cliff Camp be given an election to have, as part of the construction, a proper safety fence erected around the retention pond, such fence to be charged 50% to the drain and 50% as a special assessment to the Camp.

3. That the Report incorporate the bottom of the channel as part of the work and provide for some straightening, cleaning of obstacles, vegetation etc., such costs not to exceed 15% of the total cost of construction.

4. That the amended assessment as provided in the Report, both with respect to construction assessment and maintenance assessment, is approved.

5. That the watershed is to be extended in the Town of Forest to include those areas that provide flow into the Coultis Drain. A special one time assessment, pursuant to Section 66 of the Drainage Act for the past use made of the Coultis Drain is to be made, such sum not to exceed $l0,000.00

6. That the new Revised Report is to be circulated to all owners with the notice attached that those owners facing new assessments for the first time within the Town of Forest shall have the right to appeal to the Drainage Referee with respect to the issue of the amount of their assessment, including the one time assessment ordered pursuant to Section 66 above. However, such an appeal will not delay construction which may proceed forthwith. Such appeals must be filed with the Referee or the Municipality within 30 days of the receipt of the assessment.

7. That the issue of costs, both engineering and legal, are reserved and the Decision will be made with respect to the same after the receipt of written submissions with respect thereto, such written submissions to be provided by the Appellant, Mr. Paul Courey, Mr. McBride and if they so choose, the Town of Forest.

DATED January 25, 1999.

Delbert A. O'Brien

Ontario Drainage Referee

Schedule “A”

Court File No. A50/98

IN THE COURT OF THE ONTARIO DRAINAGE REFEREE

ONTARIO DRAINAGE REFEREE ) THURSDAY, THE 3RD DELBERT A. O’BRIEN, Q.C. ) DAY OF SEPTEMBER, 1998

THE CORPORATION OF THE TOWN OF BOSANQUET

APPELLANT

-AND-

ERIE EIZENGA, DAVID EIZENGA, DUNCAN STANTON, BASIL DOLMAGE, FRED BUCHANAN, DONNA BUCHANAN, R. ADAM DOLMAGE, MARK FRALEIGH, JOHN C. LESTER, WILLIAM CAMPBELL, JOYCE CAMPBELL, DON WOODLAND, NAN SUE WOODLAND, HOWARD LESTER, KEITH LEWIS, DOUGLAS JOHNSON, BARBARA DOLMAGE, JOE VANDENBERG, LESTEROSA SWINE-DAN LESTER, DON EVANS, BARB EVANS, RICHARD POPE, BRENDA SEATON, PETE SEATON, E. ANNE EDWARDS, ROBERT BRYANT AND KATHLEEN BURKE AND ALL OTHERS ASSESSED OWNERS ON THE COULTIS DRAIN

RESPONDENTS

Solicitor for the Appellant: Robert G. Waters, Esq. 72 Frank Street, Strathroy, ON N7G 2R6

Solicitor for Respondents: Paul J. Courey, Esq. Paroian, Raphael, 13 Queen Street North, Tilbury, ON N0P 2L0

Agent for Glendale Beach J. A. McBride, P.Eng., Cottage Owners: Maitland Engineering Services Ltd. 449 Josephine Street, Wingham, ON N0G 2W0

O R D E R

Upon hearing evidence produced at Hearings on March 31, 1998, September 1 and 2, 1998 and upon hearing the submissions of Counsel for the Appellant and the Respondents and the Agent for the Respondent Cottage Owners at Glendale Beach, J. A. McBride, P. Eng. regarding the proposed work on the Coultis Drain, the Referee being of the opinion that the major obstacle to the proposed work is the costs of the project:

1. The Referee orders that a new report be prepared by William Veitch of M.I.G. Engineering Ltd., Consulting Engineers, in full consultation with Will Bartlett, P. Eng. and J. A. McBride, P. Eng.

2. The Referee orders that in light of the reduced costs intended by the new report there shall be recognition by the affected owners, particularly those owners in the area affected by the new report that there will be greater risk in the future.

3. The Referee orders that the works to be recommended in the report to be prepared under the terms of this Order shall be at a cost no greater than $200,000.00.

4. The Referee orders that such report shall be completed by the 15th day of November, 1998 with the report to be circulated between the parties to the Hearing through their respective counsel and agent.

5. The Referee orders that the balance of this Motion be adjourned to December 14 and 15, 1998 at which Hearing the Referee shall review all matters, including costs to date. The costs to date are to be kept separate in the report of the Engineer William Veitch, in consultation with the Engineers, Will Bartlett and J. A. McBride with such cost including the costs of the consulation by the said Engineers, Will Bartlett and J. A. McBride shown separately.

6. The Referee further orders that the costs of prior and subsequent proceedings, both legal and engineering, arising prior and after the construction of the works, shall be determined at the Hearing to be held on December 14 and 15, 1998.

Order signed this 3rd day of September, 1998

DELBERT A. O’BRIEN, Q.C.

Ontario Drainage Referee

Schedule “B”

Amendments to Report of MIG Engineering Ltd.

On Coultis Drain, dated Dec. 1, 1998

Page 2: Para. 1- Revise to read as follows: “The Town of Bosanquet, in consultation with us, considered 3 alternative designs on Jan. 6, 1997. The preferred alternative was incorporated into a preliminary report dated Feb. 20, 1997 and considered at a meeting, on notice to the affected owners, on March 3, 1997. A final report, dated May 16, 1997 was considered at a meeting, on notice, on June 16, 1997.”

Page 3: Para. 1- Revise to read as follows: “As a reuslt of an Order of the Ontario Drainage Referee, after hearings on March 31 & Sept. 1-2, this report was prepared, in consultation with Will Bartlett, P. Eng. and J. A. McBride, P. Eng., engineers retained by the Respondents. The recommended design was developed based on flow rates calculated solely by us.”

Para. 2- Add a sentence as follows: “That increased risk is reflected in the fact that the existing channel downstream of Sta. 0+412 is not to be designed or constructed as part of the drain and that seepage and flows over the top of the banks are not addressed”

Page 4: Para. 3: Change “from Sta. 0+355m” to “from Sta. 0+360m”

Para. 4: Add the following sentence: “Alternatively, failing an agreed price, the Camp may retain the pipe.”

Para. 8: Change “$170,000” to “$187,253.41”

Page 5: Insert new recommendation as follows: “Prior to any significant development in the watershed which could increase the flow in the Coultis Drain, a stormwater management study should be done.”

Page 9: Soil Conditions: Add a sentence as follows “A copy of his report is appended”. Attach Mr. Colin Atkinson’s report.

Outlet of Project: Delete “few” and insert “no change”

Page 11: Para. 2: Delete “PVC” and insert “HDPE”

Para. 8: Add a sentence as follows: “Because the road crossing creates the detention system upstream, the elevation of the surface can not be reduced.”

Page 12: Para. 2: Change to read as follows: “for right of way, a nominal amount from Sta. 0+00 to Sta. 0+682.5”

Insert a new heading “Working Corridor” before the “Alternatives” section, to read as follows:

“Working Corridor

From Sta. 0+00 to Sta. 0+405 there shall be, as part of the drainage works, an area for construction and maintenance extending 8 metres from the top of the bank, on both sides of the drain and the detention area.

From Sta. 0+405 to Sta. 0+682.5, there shall be, as part of the drainage works, an area for construction and maintenance 15 metres in width, being 5 metres north of the centreline of the covered drain and 10 metres south of it.

From Lot 8 to Sta. 0+537, there shall be, as part of the drainage works, an area for construction and maintenance 6 metres wide for the covered drain serving Cole St.”

Page 14: Para. 2: Revise the last sentence to read as follows: “If additional screens or rip rap are required in the future, upstream of CB#1, because of plugging, they shall be installed under the maintenance provisions of the Drainage Act.”

Para. 4: Delete “405m” and insert “682.5m”

Delete “10m” and insert “15m”.

Page 19: Para. 2: Delete “section 77” and insert “section 74”

Page 22: John Fidaw – benefit: Delete “$100” and insert “$______”

Page 26: Para. 1: Delete “Sta. 0+355m” and insert “Sta. 0+360”

Delete “7 m wide” and insert “8 m wide”.

Para. 3: Delete “900mm x 1200mm” and insert “1200mm x 1200mm”

Page 28: Para. 2: Delete “300mm – 600mm rip rap stone” and insert “300mm – 600mm quarried rip rap stone from Allied Quarry, Amherstburg, or equivalent”. Add a sentence as follows: “All rip rap shall be placed to a minimum thickness of 750mm”.

Page 29: Para. 3: Delete “and as shown on Drawing Sheet #4”.

Page 30: Para. 2: After “compacted”, insert “to 98% Standard Proctor Density”.

Drawing Sheet #1: Legend: Delete “354.44” and insert “384”

Drawing Sheet #2: Change reference re CB#1 from “900mm” to “1200mm”.

Drawing Sheet #3: Change reference re 300mm Boss 2000 from “1.2m cover” to “1.0m cover”. Change reference from “900mm x 1200mm” to “1200mm x 1200mm”.

Drawing Sheet #4: Change reference re 300mm Boss 2000 from “1.2m cover” to “1.0m cover”.

Change reference in detail of spillway from “300” thickness to “750” thickness.

Change reference to last course of pipe from “900mm Boss 2000, 38.5m @ 4.70%” to “900mm Boss 2000, 33.5m @ 4.70%” in both the plan and profile.