ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

MacSweyne v. Lochiel (Township)

1999 ONDR 4

DATE OF DECISION:

1999-10-18

1999-04

STATUTE:

Drainage Act

HEARING:

BETWEEN:

RONDO MACSWEYNE, BARRY MACSWEYNE,

ESTATE OF RALPH MACSWEYNE

APPELLANTS

‑AND­

THE CORPORATION OF THE TOWNSHIP OF LOCHIEL

RESPONDENT

‑AND­

THE MINISTRY OF AGRICULTURE, FOOD & RURAL AFFAIRS

PARTY OF THE THIRD PART

DECISION

The Appeal of the Appellants reconvened once again on the 9th day of September 1999 in the Town of Alexandria, Ontario, a location of convenience mutually agreed upon by the Parties. The matters to be considered arose from the terms of a previous Order dated October 19, 1998, which Decision stated

“(d) That at the conclusion of the construction work, after all costs have been ascertained, the Referee will be available for a further Hearing to deal with all matters, including construction matters, assessments and allowances respecting all parties”.

For the purpose of this Hearing, however, Counsel agreed at the commencement of the Hearing that there were only two issues outstanding, namely:

(a) The question of allowances to be granted with respect to the cost of restoration work to the lands of the MacSweynes after construction;

(b) Repair of the existing MacSweyne private tile, if required.

It is not necessary to recite the history of the R. F. McLennan Drain, most of which has been recounted in previous Decisions of the Ontario Drainage Referee. However, it should be noted that pursuant to a Drainage Report dated August 13, 1998 and approved at a Hearing of the Ontario Drainage Referee conducted on the 2nd day of September, 1998, that construction work was completed in the late fall of 1998. Also an R.F. McLennan Drain Rehabilitation Report dated the 16th day of June, 1999 was completed by Chang Wang, PhD, Pedologist, and D. Richard Coote, PhD, PAg, PEng. This Report also arose from the October 19, 1998 Order of the Ontario Drainage Referee which stated:

“(c) That a special additional allowance be granted to the property of D. MacSweyne, Roll No. 16‑13000, to cover the costs of obtaining a soil specialist, doing soil rehabilitation and soil restoration work. This allowance is to be in the sum of $17,000.00. . .

That the appointment of the soil specialist be done in consultation with the Drainage Engineer and the work of restoration be supervised by him in accordance with the recommendation of the soil specialist.”

The restoration work in accordance with the terms of the Rehabilitation Report was completed in the spring of 1999 under the direction of the Drainage Engineer, after consultation with the Soil Conservation Specialists. The Appellants confirmed that they were satisfied with the work of construction and with the work of restoration, however they advised they were seeking increased allowances. They justified this claim for increased allowances because the cost of the restoration had greatly exceeded the amount previously granted by the Ontario Drainage Referee for that work and because they were claiming that their private drainage systems, which had been damaged in 1987 when the Township conducted a work of improvement and repair on the Drain, had never been repaired.

The first witness called by Mr. Allan O'Brien, Counsel for the Appellants, was Kent MacSweyne. He outlined in detail, using well prepared sketches and photographs, the existing private drainage system as well as a detail of the R. F. McLennan Municipal Drain. He presented evidence to demonstrate that the damage to their drainage system and their property was caused by the work conducted by the Municipality in 1987 to repair and improve the existing R.F. McLennan Drain. Mr. Kent MacSweyne endeavoured to show that in creating a swale for surface flows along the course of the Municipal Drain, the construction crews had deepened the surface waterway to a point where it exposed and cut off many of the private drain connections to the Municipal Drain. He advised that in the spring of 1998 there was a substantial flow of water in the newly created swale which resulted in severe erosion. Mr. MacSweyne presented the Court with a series of photos which appeared to support his allegations.

Mr. MacSweyne referred to the Soil Rehabilitation Report, prepared by Dr. Wang and Dr. Coote, dated June 16, 1999 which was prepared as a result of the Ontario Drainage Referee's Decision of October 19, 1998. The objectives and the findings of the Report were as follows:

“Objective 1 ‑ To determine if the area left fallow by the land owner is an accurate representation of the area that was disturbed during previous work on the R. F. McLennan Drain.”

The conclusion of the Study ‑ “ In our opinion the entire area left uncultivated was the area disturbed during the construction activity of 1987, with the exception of a small triangular area discussed above which was rendered too small and inconvenient for the cultivation by the construction.”

“Objective 2 ‑ To determine the areas where sub‑soil has been mixed with topsoil and left at the surface.”

The conclusion of the Study ‑ “The shaded portions of the cross sections indicate where topsoil and subsoil appear to have been mixed and left on top of the original topsoil.” (A sample of one cross section is attached hereto as Appendix “A”

“Objective 3 ‑ To determine where topsoil has been removed and subsoil is inadequately covered.”

The conclusion of the Study ‑ “The portions of the cross sections which are not shaded therefore indicate where subsoil is inadequately covered.”

“Objective 4 ‑ To determine the locations and extent of areas where soil may be available for removal, relocation and grading.”

The conclusion of the Study ‑ “The shaded areas in the cross sections shown in Appendix “A” indicate where soil is available for removal, relocation and grading.”

In our opinion this material is suitable for use as top soil that can be placed over any subsoil material that can be used to fill the existing channel. It should need only some additional phosphorus fertilizer, at the rate of approximately 20 kg/ha P2 05 to bring it up to the quality of the adjacent field soils.

“Objective 5 ‑ To recommend the extent and locations of soil removal, relocation and grading.”

The conclusion of the Study ‑ “This is the most difficult objective to meet. The understanding of the owner is that the soil surface over the pipes will be restored to its former elevation adjacent to the original open drain prior to the construction undertaken in 1975. Conclusion ‑ We have therefore decided to use our soil measurements to establish what we believe to be the MINIMUM Soil Surface Elevation prior to construction, but with the understanding that in many places the actual surface may have been higher than our measurements indicate. The Report also found that there was insufficient on site material to complete the work without removing more topsoil than that shown as shaded areas in the soil cross section ...lt is also our opinion that suitable sources of this topsoil material may be found nearby. A knoll to the east of the farm lane is one example.”

The Report continues and on page 8 thereof provides a summary of observations made during an on site inspection on June 8, 1999 after most of the work on the drain had been completed.

I. “The soil movement and grading appeared to have been done generally following the recommendations above. Over‑filling appears to have been done to allow for soil consolidation in the filled areas.

2. The amount of filling in the vicinity of the confluence of the Main Drain and Branch No. 1 seems to have exceeded the minimum recommended above, which should lead to a more appropriate surface elevation than would have been the case if only the minimum had been used.

3. The amount of filling in the area adjacent to, and to the east of, the farm lane appears to be lower than intended, based on grade markers left at the site.

4. A portion of the uncultivated area on which topsoil was stockpiled in 1987 was not stripped of its excess topsoil. The largest area is north of the main drain between the farm lane and County Road 24. The strip is from 10 to 15 metres wide, and has 15‑20 cm of surplus topsoil that could have been used in the re‑grading. Another area is a triangle on southeast side of the first bend in Branch No. 1. Here the surplus topsoil is not as deep, but could have provided additional material if it had been stripped. A narrow unstripped area has been left in many places at the outer edge of the stockpile area, adjacent to the cultivated fields.

5. The surface following grading has been left very uneven, with surface elevation differences exceeding 30 cm within 1 meter horizontal distance in many places. Approximately 10‑20% of the area is affected in this way. The most severe surface roughness is at the outer edge of the stripping done in the previously uncultivated area where topsoil was stockpiled. This unevenness may have been the result of wet soil conditions, and thick grass and weeds at the time of construction, which make it difficult to strip a shallow soil layer uniformly.

6. There are a number of stones remaining at the soil surface, ranging in size from cobbles to one which is about half a metre cubed.

7. No stone has been placed on the upslope approaches to the DICBs to control erosion.”

The Report went on to recommend a programme of soil improvements and crop rotation for soil restoration. It also provided for an estimate of future soil productivity and a proposed programme for monitoring soil productivity at annual intervals after completion of the drainage work proposed.

Mr. Kent MacSweyne expressed satisfaction with the Soil Report and expressed satisfaction with the fact that the work was done consistent with the Report. He further indicated that the work had been done under the supervision of the Drainage Engineer. However, he pointed out that Page 9 of the Report indicated that some additional grading was necessary before the fields could be cultivated.

Mr. MacSweyne concluded by advising the Court that in the late spring of 1999 he became aware that the Drainage Engineer was about to fill in and do final grading on the Drain. To forestall that event they rushed to get trucks from a variety of contractors for the purpose of trucking material off site to the Drain. The total cost of trucking, including bulldozers and loaders, was the total sum of $39,061 .24. Of that amount he indicated that $12,604.67 represented monies paid to 760153 Ontario Inc., which company was the MacSweyne family corporation.

Under cross examination Mr. MacSweyne admitted that efforts had been made by the Drainage Contractor to connect existing private tiles. He had no evidence to contradict the suggestion made that 27 connections had been made and that in each case the Supervisor had inspected the private tiles for a distance of 22 meters back from the Municipal Drain. He further agreed that since construction there was no evidence of wet spots; however he advised that the spring of 1999 was a relatively dry spring. He confirmed that they had encountered no difficulty in planting crops in the spring of 1999.

Mr. MacSweyne further admitted, when questioned by Counsel for the Respondent, that the MacSweynes had instructed Mr. Chisholm to advise Mr. Spriet that they wished to fill the swale up to pre 1975 levels. He stated that he was not certain as to the content of the conversations between Mr. Chisholm and Mr. Spriet. He stated that he understood that any cost for the infilling above the levels provided in the Spriet Report would be at their expense to the extent that it exceeded the $17,000.00 allowance. Kent MacSweyne allowed that he expected the balance of the cost to be recovered from the Municipality. Mr. MacSweyne admitted that approximately 500 ‑1,000 more cubic meters were used than had been suggested by the Soils Report. Finally Mr. MacSweyne admitted that they had elected to use material from the north end of the farm rather than truck it from the adjacent knoll as recommended in the Soils Report. He admitted that this was a more costly process and that it had improved the value of the farm.

The Drainage Engineer, Mr. John Spriet, advised that he had recently visited the site and noted that the Drain was functioning very well. He advised that the Spriet Report would have called for 2,500 cubic meters of soil to be moved for infilling purposes.

The Soils Report suggested approximately 3,500 cubic meters and in fact, the amount utilized was in excess of 4,500 cubic meters. Mr. Spriet expressed the view that ordinary farm equipment was sufficient to deal with any further grading requirements. He stated that he had advised the MacSweynes that they could raise the level of fill in the drain to whatever level they chose so long as it did not interfere with upstream flows. However, he had instructed them that all costs beyond the approximately $17,000 allowed would be at their expense.

Mr. Noble, acting on behalf of the local ratepayers, questioned the Drainage Engineer and received assurances that the level of fill did not interfere with surface flows from upstream lands.

Mr. Ramsey, the Drainage Supervisor for the Engineering firm of Spriet & Associates, advised that he had 35 years' experience in the field. He stated that he had made all the connections with the private tile encountered during the course of construction. He advised that in making connections they normally seek the advice of local owners and that they had requested a plan of the private tiles (which was not forthcoming in this instance). He stated that they dug back 22 meters from the municipal tile to ensure that the tile was in good condition and was working well. He stated they made 27 connections to 4” and 6” tile. He stated that in each case there was a trickle of water in the tile and they were clean before the connections were made. Mr. Ramsey stated while under cross‑examination, that a local knoll would have required trucking of only approximately 400 feet distant from the municipal drain, whereas the site that was used at the back of the farm was approximately 2500 feet away. He further stated that because of the soil conditions trucks were required to move slowly and consequently each trip to the north end of the farm took approximately 1 /2 hour longer.

Mr. Allan O'Brien, Counsel for the Appellants, in his submissions, requested that the private tile connections be inspected by a local drainage firm mutually agreeable to both parties and that any costs of repairs be borne by the Township. He stated that if the repairs were not required, no costs would be incurred by the Township. With respect to the issue of restoration he stated that the work was in accordance with the Report of the Soils Expert and that the previous decision of the Drainage Referee had left open the issue of quantum of allowances. He indicated that there was no comprehensive and accurate evidence as to the level of infilling and although it might have exceeded the levels suggested in the Soils Report that no more than 500 extra cubic meters would have been involved. He stated that MacSweynes were not obliged by the Soils Report to use the soil from the nearby knoll and that indeed they had saved expense by making soil available from their own farm. He concluded by stating that the MacSweynes should be compensated for the use of their own equipment and that all charges made by them were at established competitive rates.

Ms. Reeve, in her submissions, stated that there was no satisfactory evidence to indicate that there was any remaining damage to the private tile systems and that all evidence indicated that satisfactory connections had been made to the Municipal Drain. She advised that the level of the infilling of the drain had gone, not only beyond the recommendations of the Drainage Engineer, but beyond the recommendations of the Soil Restoration Report. She concluded by stating that inasmuch as the MacSweynes had elected to infill the drain to pre 1975 levels, that they should be required to pay all additional costs incurred beyond the allowance of $17,000.00 that had been previously set out in the October 1998 Decision. She concluded by stating that the MacSweynes had been dealt with very generously, both by the previous Decisions of the Drainage Referee and by damage settlements made by the Municipality.

Having heard the evidence and the submissions of legal counsel, the Ontario Drainage Referee arrived at the following conclusions:

1. The drainage scheme, as designed and installed by Spriet Associates with the assistance of their talented Supervisor, Mr. Ramsey, exceeded in quality that of the average municipal drain. It will provide the MacSweynes with a system that far exceeds the capacity of the R. F. McLennan 1975 Municipal Drain. Most of the cost of that Drain has been underwritten by the taxpayers of the Province of Ontario as well as local municipal taxpayers to the great benefit of not only the MacSweynes, but also to the other upstream assessed owners on the R. F. McLennan Drain.

2. That an excellent Soil & Drain Rehabilitation Report has been prepared with the assistance of Peter Chisholm, P. Eng., Chang Wang, PhD and D. Richard Coote, PhD, PAg, PEng, which Report sets a precedent in the quality of its analysis and recommendations. That Report was adhered to very closely with respect to its construction and restoration aspects and will prove to be of great benefit to the MacSweynes in the future if they follow its recommendations with respect to soil productivity measures. The cost of that Report was approximately $7,000.00, once again paid largely by the public purse.

3. The Claim for Damages which was not the subject of this Hearing, (the Minutes of Settlement were filed during the course of the Hearing) has been settled by the Municipality very generously and quite reasonably.

4. The restoration and rehabilitation of the Drain which took place in the spring of 1999 went beyond the requirements of the Spriet Drainage Report and beyond the very generous requirements of the Soil & Rehabilitation Report of June of 1999. The restoration of the soil as recommended in that Report was both justified and necessary, serving as it did to restore what had been degraded in the 1987 Repair and Improvement Work. However, the level of infilling reflected the personal wishes of the MacSweynes to have the drain restored to pre 1975 levels at very substantial extra cost. In my opinion, the level of infilling as recommended by Spriet Associates was sufficient and fell within normal parameters. The level of infilling as set out in the Soil & Rehabilitation Report was overly generous and in my opinion reflected in large measure the expressed personal desires of the owners. This was supported by the statement on page 5 of that Report referring to Objective 5, namely the extent and locations of soil removal, relocation and grading ‑

“This is the most difficult objective to meet. The understanding of the owner is that the soil surface over the pipes will be restored to its former elevation adjacent to the original open drain prior to the construction undertaken in 1975. “

It is my opinion that the authors of the Soil & Rehabilitation Report were guided in large measure by the desires of the owners in setting the minimum standards in their Report for infilling elevations. In any event, the final levels that currently exist reflect the personal objectives of the MacSweynes. This infilling level was achieved at a very great extra cost which cost was also increased substantially by the decision of the MacSweynes to truck the excess material from the north end of the farm. The MacSweynes were perfectly entitled to both choose the source and the level of the material, provided it did not interfere with upstream owners. The Drainage Engineer has assured us that current levels have not, in any way, interfered with upstream flows and therefore the construction can be accepted and approved. However, the question of who must pay the additional cost is another matter and I am of the opinion that the public taxpayer must not bear all or even a major portion of this additional burden.

5. The issue of the private tile drains and their connections to the Municipal Drain is one in which it is difficult to make a judgment. The preponderance of the evidence, as given by Mr. Ramsey the Supervisor of the work, indicated that the connections were properly made and that the private tile which was examined up to a point of 22 meters distance from the Main Drain. I am of the opinion that any problem relating in that area is minor and can be repaired (e.g. if blowouts occur) at minimum cost.

6. I am further of the opinion that this matter must be brought to an immediate closure. This matter has festered for a number of decades disturbing the lives of not only the MacSweynes, but that of Municipal Officials, both in the old Municipality of Lochiel and the current Municipality of North Glengarry. In recent years all parties have made an effort to reach a settlement and in this regard I wish to commend the officials of North Glengarry Township as well as the MacSweynes for reaching a settlement with respect to the issue of damages. The Provincial Government deserves much credit, as does the old Municipality of Lochiel for its respective efforts to bring this matter to a final resolution.

In consideration of all the above mentioned factors, I MAKE THE FOLLOWING ORDER:

(a) THAT an additional allowance of $10,000.00 be granted to the Appellants and charged to the Municipal Drain.

(b) THAT an additional allowance of $3,000.00 with respect to the private tile of the Drain be granted to the MacSweynes and charged to the Municipality of North Glengarry.

(c) THAT Legal Counsel provide written submissions with respect to the matter of costs.

DATED: October 18 1999.

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee