ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Hape v. Essex (Town)
1999 ONDR 3
1999-09-23
1999-03
STATUTE:
Drainage Act
HEARING:
BETWEEN:
CARL HAPE
APPELLANT
-AND-
THE TOWN OF ESSEX
RESPONDENT
DECISION
This matter was heard by the Ontario Drainage Referee on the 16th day of September, 1999 at the Court House in the City of Windsor. It was commenced by way of a Notice of Motion issued on the 30th day of July, 1998 at the Windsor Court House on behalf of the Appellant, Carl Hape. Originally the Respondents named in the matter were the Corporation of the Township of Colchester North and the Corporation of the Township of Colchester South. However, pursuant to an Order made under the Municipal Act, R.S.O. 1990, Chapter M45, the aforementioned municipalities were amalgamated as the Town of Essex. Accordingly, pursuant to the request of Counsel for the Appellant, the Drainage Referee amended the style of cause naming the Town of Essex as the Respondent.
Counsel for the Appellant requested the following relief:
"An Order declaring that the Respondents, or either of them, failed to properly supervise the work of a contractor done under a work of repair and improvement on the 8th Concession Road Drain, under a report by E. O. LaFontaine, P.Eng. dated May 23, 1990, which resulted in substandard work being done by the contractor.
An Order declaring that the Respondents, or either of them, failed to pursue available remedies to recover damages from the contractor, its surety, the engineer, or others who may have been responsible in law for the substandard work.
An Order declaring that the Appellant has suffered damages as a result of the substandard work in the amount of $100,000.00 for which the Respondents, or either of them, are liable in law.
An Order declaring that the procedure to be followed in this matter shall, with necessary modification, be as set out in the Rules of Civil Procedure for the conduct of an action in the Ontario Court (General Division) with the Appellant being required to serve a document equivalent to a Statement of Claim within thirty (30 days)
Other relief as may be permitted."
The 8th Concession East Drain is a very old Municipal Drain, serving 1254 acres of farm land, together with 34 acres of road, in the Township of Colchester North, in addition to 760 acres of farm land and 23.85 acres of road in former Colchester South.
The upper end of the 8th Concession East Drain commences at the west side of County Road No. 23 in the former Township of Colchester North and extends westerly and downstream along the north side of the 8th Concession Road to approximately the east limit of the Ferris Side Road where it turns southerly. The Drain then extends southerly and downstream along the east side of the Ferris Side Road across County Road 18 into the former Township of Colchester South to where it turns westerly across the Ferris Side Road at a point opposite the south half of Lot 17 Concession 6. The Drain then proceeds in a general south westerly direction and downstream across Lot 16 into Concession 6 across the 6th Concession Road through Lot 14 in Concession 5 and across the 5th Concession Road to its outlet in the Richmond Drain. It is a long, large, open drain serving a large watershed of relatively flat farm land.
Before a Report dated the 23rd day of May, 1990, made by the Engineering firm of Lafontaine, Cowie, Buratto & Associates Limited, the earliest previous reported cleanout was in 1921.
After the approval of the aforesaid May 23 1990 Report which provided for a cleanout and improvement, the Township of Colchester North, which had been the initiating municipality, let a contract for the work to Sherway Contracting Limited. The records indicate that Sherway Contracting Limited completed the work which consisted largely of a bottom cleanout, some sloping of banks with repairs to outlet pipes, replacement of access culverts, underpining of a bridge structure and associated works for a total construction cost tendered by them of $80,525.00. The work was completed in 1991 and almost immediately there were complaints about the quality of work, particularly with respect to over excavation and although some remedial work was completed by Sherway, complaints continued.
In 1995 the Appellant purchased part of Lot 17 Concession 6 in Colchester South Township, which land was bounded on its west side by the 8th Concession Road Drain East. In the spring of 1996 Mr. Hape, while driving his tractor along his laneway which ran parallel and adjacent to the drain, suffered a mishap when the tractor slipped into the drain as a portion of the bank slid into the drain under the tractor. In addition to the aforesaid incident, Mr. Hape complained of erosion and sloughing of his banks involving many tons of soil together with loss of trees and portions of fence together with a very real threat to the foundation of an old barn immediately adjacent to the drain. Mr. Hape complained to an employee of South Colchester, Tony DiCiocco, who was the acting Drainage Superintendent for the Township. He wrote letters of complaint in April and May of 1996 to the Clerk and as a result an on‑site meeting was convened and the engineering firm of N. J. Peralta Engineering Ltd. was retained to commence an investigation.
On March 27, 1998, N. J. Peralta Engineering Ltd. delivered a Report calling for extensive remedial work, primarily consisting of installation of 903 meters of 455 mm pipe in the bottom of the drain adjacent to the length of Hape's land and beyond. The Report also called for the importation of clay fill to re‑build and re‑shape the slopes and to cover the pipe which was to be laid on the bottom of the drain. The cost of that work was estimated at $155,488.00.
Mr. Hape appealed the Report to the Ontario Drainage Tribunal, pursuant to Section 48 of the Drainage Act and other owners, namely Attilio Grosso, L. Bomben‑Grosso and Richard White appealed likewise to the Drainage Tribunal, pursuant to Section 54 of the Drainage Act. In addition, through the offices of Paul Courey, the Appellant appealed to the Ontario Drainage Referee.
The Ontario Drainage Tribunal convened on the 20th day of August 1998 and adjourned its proceedings pending the outcome of the Appeal to the Ontario Drainage Referee.
John Taylor, the Vice‑Chair, stated in his Decision:
"The Tribunal considered the submissions of the parties and the March 27, 1998 Report prepared by Mr. Peralta. The Report does two things. It recommends a repair for the problem and who should pay the cost of repair. These two items are the same issues that the Referee must decide in the action of Carl Hape. Also in the Report there is allegations of negligence on the part of Colchester North in failing to supervise the work, allegations of negligence on the part of the Engineer and the contractor performing the work, under the 1991 Report. The Referee has the jurisdiction to determine these matters. If the Referee finds damages and responsibility, then he also has to determine the best and least expensive repair. The Referee may well determine a different repair than the one presented by Mr. Peralta. The Tribunal decided it should not proceed with this Hearing and decide what work is necessary, what the costs are, and who should pay but should defer to the Referee. In making this Decision, the Tribunal is aware that it is open for the Referee to order the Tribunal to proceed, and if so ordered, the Tribunal will proceed. The Tribunal is not dismissing the appeals. The Tribunal stands adjourned to await the outcome of the motion at the Referee. In the opinion of the Tribunal, proceeding with this Hearing would be an unnecessary waste. The evidence before the Referee may have to be duplicated or may differ from what is presented here and the Tribunal does not want two different decisions on the same issues. Further, the appeals to the Tribunal by the other owners in the watershed will be affected by the Decision of the Referee and the Tribunal feels these appeals should be postponed as well. "
It should be noted that in the Peralta Report, the Appellant was assessed for his 49.46 acres as follows:
$ 6,000 for Benefit
$ 2,269.00 for Outlet
$12.000.00 Special Benefit
TOTAL $20, 269.00
A paragraph from Mr. Peralta's Report reads as follows:
"A number of ratepayers, both in the Township of Colchester South and in the Township of Colchester North conveyed their deep concerns and frustrations with the overall condition of the 8th Concession East Drain just southerly and downstream of County Road No. 18. It was the general opinion of these ratepayers that the present eroded condition of this Drain was caused primarily due to the drain over‑excavation, and the generally poor work performed by the General Contractor pursuant to the Engineer's Report of May 23, 1990 by E. O. Lafontaine, P.Eng. A great deal of discussions ensued which included comments such as "the general contractor and the engineer should have been sued because the work was not done properly in 1991" and "work to the Drain south of the County Road 18 should not have been done", etc. Mr. Alfons Brockman advised that erosion and minor caving‑in of the drain banks along Mr. Hape's property existed prior to the work being done in 1991; however, the erosion was not near as bad as it is now. Mr. Mario Meloche advised that with the over‑excavation of the drain and the considerable grade which naturally exists within the drain, the erosion problems have increased considerably along the drain. We advised the ratepayers present that as Engineers retained by the Township of Colchester South, we must deal only with the drain conditions which currently exist and cannot deal with any of the issues with respect to the faults of the General Contract and/or the Engineer involved with the construction works conducted back in 1991. We further advised that we must focus on the problem at hand and provide a method of controlling the erosion problems."
Mr. Courey, on behalf of the Appellant, made the following allegations in his Statement of Claim:
"Essex, or its agents, failed to adequately supervise the work so as to ensure the quality of the work and/or the repairs.
Essex, or its agents, failed to pursue the remedies available to is after Sherway disclaimed responsibility by letter dated March 1, 1993. Specifically, Essex failed to make a timely demand on the Maintenance Bond, or alternatively failed to advance a claim against Surety once coverage was denied by letter dated November 22, 1993.
Essex owed a duty of care under the Drainage Act and common law to owners of the lands assessed. Essex was obligated to carry out the provisions of the Act which charged it with the maintenance of the Drain. Hape, as a subsequent owner, is entitled to rely on Essex to have properly maintained the Drain in the past, prior to his purchase of the land, which occurred after the work and the 1990 report was completed.
Hape states that any work now required is a foreseeable and direct result of the negligence of Essex in not properly supervising the work, or alternatively in not pursuing the remedies available to it at the time for the defective work. Essex is responsible in damages for Hape's share of the cost of any work now required as for his loss of enjoyment of his property."
Mr. Marshall, in his Statement of Defence, made the following allegations:
"The Plaintiff was aware of the exact situation with respect to the drain at the date of the purchase and purchased the property subject to the existing drain condition.
The Plaintiff failed to commence proceedings in accordance with Section 110 (2) of the Drainage Act in that he was aware of the property damage when he purchased the property on the 19th day of May, 1995 and when he complained to Township Council by letter dated the 22nd day of May, 1996, and has failed to request the Drainage Referee for relief from commencing the action within the time frame set out in the Drainage Act.
The Defendant denies that either the Corporation of the Township of Colchester South or the Corporation of the Township of Colchester North was negligent in the supervision of the construction of the drain and was advised by the Engineer retained by the Township of Colchester North, Lafontaine, Cowie, Burrato & Associates Inc. ("LCBA") that:
(i) there is no conclusive evidence as to the cause of the problem. The slumping is evident along the entire section of the drain and is on the road side bank only.
(ii) while over excavation may have contributed to the failures, it cannot be said for certain that this is the case.
(iii) the constant rain all year may have contributed to the problem.
(iv) the extra weight of the moisture collected in the grass slope and the high water table may be an additional factor.
(v) another contributing factor for the slumping may have been the weight and vibration of the backhoe . . . . "
Mr. Courey called as his first witness on behalf of the Appellant, Ray Fields, a farmer who had farmed the Hape property, both before and after the purchase by Mr. Hape. He confirmed that the Drain was causing serious erosion along the Hape farm. He confirmed that he was present when the work was done and in his opinion the work done by Sherway Construction was substandard.
Mr. Hape testified that he had purchased the property in the fall of 1995, that he had not made a serious inspection of the Drain until the spring of 1996 at which time he experienced the incident with his tractor. He advised that a short portion of the fence at the rear of his property was falling into the Drain together with trees in that area. He indicated that his barn, which was approximately 70 years old, was currently approximately one foot from the drain and required immediate supporting repairs to the foundation to avoid serious damage. He advised that in addition there were cracks in the foundation of the house and in the floor tile inside the house, but he quite honestly advised that he could not attribute them to the Drain. He commented that he was not aware of any negligence on the part of the Municipality until such time as he attended meetings in 1996 at which time he was apprised of the over‑excavation of the Drain, both as to depth and bottom width.
Mr. Meloche, the current Drainage Superintendent had also been the Drainage Superintendent for Colchester North throughout the relevant period. He advised that in his opinion 75 % of the damage to the Hape property had occurred prior to 1995 when Mr. Hape purchased the property. Mr. Meloche produced his personal record of rainfall, which showed a total of 16.4 inches of rain falling from December 30, 1991 to July 8 in 1992 and 8.3 inches in 1993 from January 4 to June 28th. He maintained that the heavy rainfall and a high water table had had a significant negative influence on the stability of the Drain. He also stated that it was his opinion that the high velocity of flows in the Drain and the composition of the soil were also significant factors in causing erosion. He admitted during cross examination by Mr. Courey that after Mr. Ruthven, the then current Drainage Superintendent for Colchester South, passed away during the course of construction in 1991 that the Sherway Construction excavation work may have gone unsupervised from Station 5 + 191 along the Ferris Road. Mr. Meloche stated that he assumed supervision when the work reached County Road 18 at the Colchester North Line. Mr. Meloche identified and confirmed many of the statements found in the correspondence which flowed between the Municipalities, Engineers and the Construction Company in 1991 and 1992 regarding problems in the Drain.
A letter that is representative of some of the correspondence and which was that signed by D. A. Joudrey, P.Eng. of the firm of Lafontaine, Cowie, Buratto & Associates Ltd. addressed to the Township of Colchester South dated the 2nd day of December 1992, states:
"As you may be aware there has been some significant slumping of the roadside ditch bank along the Ferris Sideroad between County Road 18 and the 6th Concession Road associated with the work on the above drain. Repairs will be required.
We have reviewed the cross‑sections of this section of the drain comparing the original ditch cross‑sections to the proposed design, the as‑constructed cross-sections from May 1991 and the actual cross‑section of November, 1992.
There is no conclusive evidence as to the cause of the problem. The slumping is evident along this entire section of drain and is on the roadside bank only. It is more pronounced in some areas.
The failures are in areas that include the following:
Where the drain was overexcavated by the Contractor by as much as 12".
Where the drain bottom was excavated wider than specified up to 2 meters instead of 1.5 meters.
Where the drain was excavated to design grades which were below original bottom elevations.
Where the drain was not appreciably touched.
From the cross‑sections, we note that considerable scouring of the ditch bottom has occurred since May of 1991. The existing drain bottom is now as much as 6" lower than the as‑constructed 1991 elevations and slightly wider at the bottom.
Undoubtedly, over‑excavation of the bottom both in depth and width by the Contract is a major factor in this problem. While this may have contributed to the failures, it cannot be said for certain this is the case.
The constant rain all year may have also contributed to the problem. The extra weight of the moisture collected in the grassed slope and the high water table may be additional factors.
Another contributing factor for the slumping may have been the weight and vibration of the backhoe which excavated from the top of the roadside bank. Trucks were also sitting and being loaded along the edge of the road.
It should be noted that the east bank, which had all of the grass and brush removed appears quite stable."
An equally important piece of internal correspondence also taken from the files of South Colchester was a letter dated June 18 1993 addressed to E. O. LaFontaine, P.Eng. and written by Charlie Maaskant, the then Drainage Superintendent for the Township of Colchester South. This letter was copied to the Township of Colchester North. It reads:
"In response to your letter of June 4, 1993, following our site meeting on May 27, 1993, I would like to make a number of comments and ask for clarification on some points:
(1) In a letter from your office to Sherway Contracting dated December 16, 1992, you advised the contractor that "this project cannot be given final acceptance and you should notify your bonding company accordingly". Given that the project has not been accepted and the holdback has not been released, how is it that the drainage by‑law has been closed?
(3) In your letter of December 16, 1992 to the contractor, you clearly state that . .. "every instance of bank slumping has been caused b overexcavation of the drain beyond the designated depth and bottom width. " The contractor was informed that he was being held responsible for all problems relating to slumping of the ditch bank between station 4+000 and 5+200 at his sole expense. I understand that the holdback of $3,762.11 will be used for the required repairs and would like confirmation that the contractor remains responsible for the repairs you propose.
(4) At this point the repair method of reshaping the west bank to 2:1 side slope and hydramulch seeding and fertilizer appears to be the preferred long term solution."
It is interesting to note that as late as June of 1993 the correspondence indicates that the slumping problems appear to be confined to the roadside or the west side of the ditch.
Mr. Robert A. Sirola, P.Eng., an employee of Sherway Construction also presented evidence. He advised that the company received a completion certificate from the Drainage Engineers; and the following year they did repairs as requested shoring up the sideslopes in various places along the Drain. He conceded that Sherway Construction had over excavated the Drain in places, but he maintained it was not significant and was often done with the approval of the Municipal Supervisor. He concluded by stating that, in his opinion, the design slope of 1 to 1 1/z was not adequate.
Tony DiCiocco, an employee of both the Conservation Authority and the Town of Essex was the last witness called for the Town of Essex. He advised that he personally inspected the Drain in the spring of 1994 and stated that in his opinion 75 % to 80 % of the damage had already been caused to the Drain at that time. Mr. DiCiocco had no information with respect to the subject as to why the bonding company was not pursued by the Municipality. He also claimed that the rainfall was unduly heavy after the Drain was constructed in 1991, although he conceded that the average rainfall in the area was placed by the Ministry of Agriculture and Food at 28.18 inches annually and that therefore the records of rainfall kept by Mr. Meloche did not reach that threshold.
Having considered the evidence carefully and listening to the submissions of Counsel, I arrived at the following conclusions:
- The Municipalities were negligent in the supervision of the drainage work in 1991 and in their failure to recover from the contracting company the costs of putting the Drain in suitable repair. It appears, after the unfortunate death of the Drainage Superintendent, Mr. Ruthven, that during the course of repair and improvement of the Drain conducted in 1991, particularly from Station 5+191 up to the County Road 18, that the work of the Contractor was unsupervised. If the work of the Contractor was supervised, it appears that excavation adjacent to the Hape property was excessive, both as to depth and bottom width. The evidence further indicates that the repair work done by Sherway Construction was insufficient and accordingly it fell to the Municipality to complete the work or pursue the Contractor and/or its bonding company for damages. For whatever reason, Colchester North, the initiating Municipality, failed to carry out its statutory duties and therefore must be held responsible. I find that the Municipality was negligent on two counts, namely:
(a) in failing to properly supervise the work; and
(b) in failing to pursue the Contractor for the deficiencies in the construction.
- I cannot agree with Mr. Marshall's arguments with respect to the question of whether or not the Referee had jurisdiction to make rulings on both counts. I would point to Section 118 (2) of the Drainage Act where it directs that Municipalities are responsible for "improper action, neglect, default or omission" not only for the "construction, improvement, maintenance or repair of the drainage works", but also for "carrying out the provisions of the Act".
The Drainage Act imposes on Municipalities the responsibility for administering the Drainage Act and for entering into contracts for construction, etc. If there is breach of such a contract it is the responsibility of the Municipality to seek proper legal redress.
- The question of the quantum of damages suffered by Mr. Hape in this matter is much more complex. It has been correctly argued by Mr. Marshall that there were many factors that applied and therefore limit the extent of damages. The measure of damages in this case was very difficult to ascertain because the damages were not quantified by the evidence in any mathematical way other than by relating the damage claim to the Benefit Assessment, both General and Special, made in the Peralta Report. Although the latter gives an indication of the cost of restoring Mr. Hape's property in the area of the Drain, it was not a true measure of the damages suffered by Mr. Hape.
I recognize the following factors as contributing to the failure of the drain:
(a) the physical circumstances of this large watershed resulted in heavy flows in peak runoff periods which, together with the grade, produced high velocities which resulted in predictable erosion.
(b) rainfall immediately following new construction can be very detrimental and although I recognize that the rainfall in the years 1992 and 1993 as indicated by Mr. Meloche was not above average rainfall, significant storm events of high rainfall during short periods of time often have serious negative impacts. In this case, the evidence indicated several heavy rainfalls.
(c) Mr. Meloche and Mr. DiCiocco testified that most of the damage occurred before Mr. Hape bought his property. This evidence was somewhat rebutted by the letter of Mr. Maaskant who noted as late as the summer of 1993 that the damage was to the west bank. However, I accept that a significant portion of the damage may well have occurred before 1995, therefore that factor was taken into account in my assessment.
I find that the Appellant is not limited by Section 110 (2) of the Drainage Act as argued by Mr. Marshall. Having commenced his Motion by the 30th day of July 1998 I find that the "cause for complaint" did not arise until after the Appellant had attended the various meetings in the summer of 1996 which process is recounted in the letter of Deputy Clerk Cheryl A. Bondy of the Corporation of the Township of Colchester South addressed to Mrs. Norma Meloche, ClerkÂ-Treasurer of the Township of Colchester North. The Record indicates that in the earlier letters of April and May to the Township he was seeking a remedy in the form of repair of the Drain and at that time was not aware of the facts which might lead him to believe that he in fact had a cause of action for damages. In any event, I find that the action was commenced within the two year time limit from the time that the "cause of complaint" arose, therefore I need not make an Order extending the time, pursuant to Section 114 of the Drainage Act.
Mr. Courey has requested damages for:
(a) the loss of trees;
(b) loss of fencing;
(c) personal injury or trauma as a result of the tractor incident;
(d) damages to cure the barn;
(e) damages for the cracks in the foundation of the house and for the cracks in the tile; and
(f) for erosion and loss of farm land through erosion adjacent to the ditch.
Mr. Courey has suggested that the damages have been quantified by the Drainage Report prepared by Mr. Peralta by the collective sums of $6,000.00 General Benefit and $12,000.00 with respect to Special Benefit assessed to Mr. Hape. I agree that if Mr. Hape was entitled to full recovery, the Benefit Assessments collectively present the cost of restoring his land adjacent to the Drain, including the restoration of land adjacent to the barn, etc.
I discount the claim with respect to the cracks in the foundation and the tile in the house as not being sufficiently established in evidence. I commend Mr. Hape for his honesty in suggesting that he was not certain of that claim and indicating that damage could have resulted from recent work done on the roadway in front of his premises. I further accept that the loss of trees and fencing in these circumstances is nominal. The need for repair and restoration of the foundation of the barn appears to be very legitimate.
I must therefore make a discretionary judgment with respect to what damages should be granted to the Appellant. The total amount of Benefit Assessment provides some guidance, but must be adjusted downwards because
a) there were other contributing factors causing the damages as outlined above;
b) the Appellant will have a much better drain if construction proceeds, a benefit well beyond mere compensation for damages to the old drain.
I therefore believe it would be equitable to award damages in the sum of $9,000.00 being 50 % of the Benefit Assessment.
I am making this award to Mr. Hape payable by the Municipality of the Town of Essex independent of whether the work contemplated in the Peralta Report is proceeded with or not. At the Hearing before me the Drainage Engineer, Mr. Peralta, was not called by Counsel. Therefore I was not afforded the advantage of expert professional testimony and was unable to make a decision as to the adequacy of the Peralta Report. I therefore leave that determination to the Ontario Drainage Tribunal when it proceeds with its Hearing pursuant to Section 48 and Section 54 of the Drainage Act. However, I would urge it to take into consideration my award of damages to Mr. Hape in their deliberations to ensure that he does not have the advantage of double recovery.
The Parties are hereby granted the opportunity of making written submissions as to costs. They must be submitted in forty‑five days (45) after they have been exchanged.
DATED: September 23 1999.
Delbert . O'Brien, Q.C.
Ontario Drainage Referee