Rockeynol v. Spring Water (Township), 2000 ONDR 10

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Rockeynol v. Spring Water (Township)

2000 ONDR 10

DATE OF DECISION:

2000-09-05

2000-10

STATUTE:

Drainage Act

HEARING:

BETWEEN:

ROCKEYNOL FARMS LIMITED AND COLIN ELLIOT

APPLICANTS

-AND-

THE CORPORATION OF THE TOWNSHIP OF SPRINGWATER

RESPONDENT

DECISION

The Applicants commenced an action for damages against the Respondent on October 31, 1996. During the course of conducting Discoveries it was ascertained by the Applicants that they wished to expand their claim for damages and to do so would require an amendment of the Statement of Claim. Accordingly, the Applicants brought a motion before the Ontario Drainage Referee in the Superior Court of Justice in the City of Barrie, Ontario on the 27th day of July, 2000.

The Motion was for:

(a) an Order amending the Statement of Claim by changing the year in the thirteenth paragraph on page 4 of the Statement of Claim from "1994" to "1987";

(b) an Order amending the Statement of Claim by changing the time frame in the nineteenth paragraph, sub (b) on page 5 of the Statement of Claim from "1994 to 1996" to "1987 to 1996";

(c) the costs of this Motion; and

(d) such further and other relief as to this Honourable Court may seem just.

The facts as set forth in the Affidavit filed on behalf of the Applicants made by Lee-Ann Fournier and the Affidavit filed on behalf of the Respondent made by Paul Flindall were as follows:

The Applicants operate a farm in the Township of Springwater in the County of Simcoe. They own and plant crops on the north half of Lot 11, Concession 5 which consists in part of land that has extraordinarily high fertility, and which is located on what is known as the "Phelpston Marsh". The land has been drained by the Phelpston Marsh Drain for more than 50 years. For most of these years, the Phelpson Marsh Drain has adequately drained the Applicant's Land.

In 1979 the drain became clogged in an area of quicksand in Lot 10 in the 4th Concession, leaving the Applicants' Land to a large extent impossible to cultivate. The Applicants advised the Township of Flos (the Respondent's predecessor) of the problem on August 17, 1979, then again on August 5, 1980. On July 3, 1981, the Applicants served the Township of Flos with notice pursuant to the Drainage Act, Section 79 (2) and issued a Statement of Claim dated December 16, 1981. The claim was settled by Minutes of Settlement dated October 11, 1983 and an Order was made accordingly on October 11, l983. The Order of William D. Turville, Drainage Referee, required that damages and costs be paid by the Municipality out of its general funds.

In March of 1986 the Applicants once again made a claim for losses suffered in the intervening years because of the improper functioning of the drain. Once again, Minutes of Settlement were entered into on the 28th day of September, 1987 and a subsequent Order was made by the Referee, William D. Turville, providing for payment of damages and costs by the Municipality out of its general funds.

In April of 1983, Ainley and Associates Limited, Drainage Engineers, prepared a Report on the Phelpston Marsh Drain which recommended that a pump lift station be inserted at a problem area in order to alleviate conditions causing damage to the Applicant's land. That Engineering Report was subsequently appealed to the Court of Revision and the Drainage Tribunal pursuant to the provisions of the Drainage Act. After the Appeals were resolved, a pump lift station was constructed commencing in the fall of 1987 and finishing in the spring of 1988 at a cost of $171,500.00.

On May 30, 1996, the Township received a telephone call from the Applicants complaining about a beaver dam and then a written notice from the Applicants on June 13, 1996. The Township immediately arranged for removal of the beaver dam and a cleanout of a portion of the Tenth Sideroad Branch of the Drain. That work commenced on June 25th 1996 and was completed on June 28th 1996. The parties agreed that repairs made in 1996 were satisfactory.

The Applicants thereafter commenced an action for damages on the 31st day of October 1996.

ISSUES TO BE DECIDED

The Applicants defined the issue as follows:

The issue on this motion is whether the Statement of Claim should be amended to claim damages for losses the Applicant's incurred not only from 1994 to 1996, but from 1987 to 1996."

The Respondent describes the issues as follows:

"Were the Applicants barred from claiming damages extending back to 1987 because

(a) the Respondent had not incurred liability for drainage repair pursuant to Section 79 (2) of the Drainage Act, the notice having not been given as required by the Act; and

(b) the Applicants were barred by Section 11 (2) of the Drainage Act for not having filed "Notice within 2 years from the time the cause of complaint arose" and/or Section 45 (1) of the Limitations Act for not having commenced an action within six years."

SUBMISSIONS OF APPLICANTS

The Applicants submitted that the law with respect to amendment of the pleadings is governed by Rule 266.01 of the Rules of Civil Procedure which provides as follows:

"On motion at any stage of an action the Court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment".

It was argued that Rule was mandatory unless it resulted in prejudice that could not be compensated by costs. In this case, it was alleged that there was no such prejudice, the Respondent having had notice of the Applicants' claim for many years.

The Applicant argued that Section 111 (2) was satisfied inasmuch as the Respondent had been notified of the cause of complaint as early as 1979.

The Applicant referred to the Interpretation Act which states that (because the Drainage Act is remedial legislation) such statutes must be given "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".

It was further argued that the issue of notice and limitation periods should not be decided on a summary basis, such as in this motion. The Applicants referred, in support of this proposition, to several authorities including Lee v. Ontario (1990), 1990 CanLII 6980 (ON HCJ), 72 O.R. (2d) 343 (H.C.) and Barcan v. Zorkin, [1987] A.J. No. 575 (Alta. C.A.) It was finally argued that the Respondent should not be allowed to rely on a notice or limitation defence in circumstances where such a defence had not been pleaded.

The Respondent argued that because notice was not given as required by Section 79 (2) with respect to any claim before 1996 that the Applicants were precluded from claiming damages extending back to 1987. He quoted the case of Cullerton v. Township of Logan (1913), 25 O.W.R., 254 (Ontario Drainage Court). He added that the notices given in 1979 and 1980 and 1984 were related to actions that were settled by Minutes of Settlement before the Drainage Referee, William D. Turville.

The Respondent further argued that Section 111 (2) of the Drainage Act precluded any claim for damage arising prior to two years from the giving of notice. He referred to the oft quoted case of Wigle v. Townships of Gosfield South and Gosfield North (1904), 7 O.L.R., 302 (Ont. C.A.).

ORDER

The Referee, having read the material filed and heard the submissions of Counsel, has determined that the Motion to amend the pleadings ought to be granted.

The Drainage Referee has very broad discretionary powers provided by Section 106 of the Drainage Act over all matters falling within his jurisdiction, procedural and otherwise. In this case, following the spirit of Section 26.01 of the Rules of Civil Procedure, the Referee is of the opinion that any prejudice that would befall the Respondent as a result of the granting of the amendment requested could be compensated in costs. In granting the motion providing for the amendment of pleadings, the Referee is specifically not making any determination with respect to the issue of Section 79 (2) notices and/or Section 111 (2) time requirements. Such consideration shall be reserved to be considered at the subsequent trial when all the evidence is before the Court.

The Drainage Act, being remedial legislation does require a broad and liberal interpretation and justice is better served when all the evidence is before the Court. Accordingly, it should be noted that if the Respondent moves to amend his Statement of Defence with respect to the pleading of limitation periods, etc. that the Court will be inclined to consider such a request positively.

The Court therefore grants the motion amending the Statement of Claim in the terms requested.

The Court further adjourns the issue of costs with respect to this motion to be determined at a later date in the proceedings, consideration to be given to any prejudice that may have been suffered by the Respondent as a result of this Motion.

DATED: September 5, 2000

Delbert A. O'Brien, Q.C.

Ontario Drainage Referee