ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Steeves v. Montague (Township)
2000 ONDR 11
2000-07-17
2000-11
STATUTE:
Drainage Act
HEARING:
BETWEEN:
KIRK STEEVES AND DAWN COYLE APPELLANTS
-AND-
THE CORPORATION OF THE TOWNSHIP OF MONTAGUE RESPONDENT
D E C I S I O N
The Appeal of the Appellant was heard by the Drainage Referee in the Court House in Perth, Ontario on the 30th day of June 2000.
The Appeal was with respect to a claim for damages allegedly suffered by the Appellants as a result of work conducted by the Township for the purpose of cleaning out the Municipal Drain known as the Ford Municipal Drain. The Appeal was pursuant to Section 106 (1) (c) of the Drainage Act
- (1) The referee has original jurisdiction,
(c) to determine claims and disputes arising under the Act, including, subject to section 120 claims for damages with respect to anything done or purporting to have been done under this Act or a predecessor of this Act or consequent thereon;
The work was undertaken by the Municipality in response to a program offered by the Province for the purpose of providing funds as a result of the now infamous Ice Storm in Eastern Ontario. Mr. Tuthill, the Drainage Superintendent for the Township, was requested by the Township to assess what damages had been caused by the Ice Storm with respect to the Municipal Drains. He responded in a letter dated the 12th day of January, 2000 as follows:
“Ice Storm damage to Drains. As requested we have reviewed the municipal drains in the Township for the purpose of assessing damages due to last year’s ice storm. The impact on the drains has been trees which have either fallen into the drains or are over hanging the drains. The locations where remedial work is required are shown in yellow in the enclosed plans and more particularly described as follows”
With respect to the Ford Drain and more particularly Branch No. 1 thereof, the Drainage Engineer recommended that work be done between Stations 0+00 to 57+90 and between Station 67+00 at the Main Drain. The lands of the Appellants being the west half of Lot 28 Concession 8, Township of Montague were situated in that Section of Branch No. 1 of the Ford Drain between Stations 45+00 and 39+30. Accordingly those portions of the Ford Municipal Drain lying within the boundaries of the Appellants’ land were slated for clean up work. The objective was to deal with trees that had either fallen into the drain or were over hanging the drain and there was considerable urgency with respect to the commencement of and the completion of the work.
The Township had received information late in December of 1999 that the grant was available, and was further informed that the work was required to be completed before the 30th day of April, 1999.
The first witness for the Township was Mr. Tuthill, who advised that because of the grant money being available to the Municipality this work was to be done at no cost to the landowners. He indicated that the work was to be done as a work of repair pursuant to the statutory responsibilities of the Municipality in accordance with Section 74 of the Drainage Act.
“74. Any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, relating to the construction or improvement of a drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes, to the extent that such drainage works lies within the limits of such municipality, at the expense of all the upstream lands and roads in any way assessed for the construction or improvement of the drainage works and in the proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or on appeal therefrom. R.S.O. 1980, c 126, s.74”
He further indicated that according to the provisions of the original Drainage Report for the Ford Municipal Drain dated the 10th day of November 1969, under the heading GENERAL SPECIFICATIONS, the following specifications were set out:
“S-12 Clearing and Grubbing:
(a) Trees or brush growing in or on the banks of the drain are to be grubbed out clean.
Trees having a stump diameter of 6” or over are to be cut into log or cord wood lengths and piled clear of the spread materials; the stumps are to be piled in a corner of the field from which they are taken, adjacent to, but not closer than 4’ to the edge of the drain.
Branches and brush under 6” in diameter are to be piled on the spread materials for disposal by the property owner.
(b) At locations where the drain passes through bush or wood lots, a strip of land will be cleared along one side of the drain only. The locations where such clearing will be required and the width of the proposed clearing will be shown in the Supplement Specifications.
It is not the intention that excessive clearing take place. Large trees growing within the designated area are to be preserved unless excessive damage will be caused to them. Stumps are not to exceed 1 foot in height. Brush and branches are to be disposed of as previously outlined in Section (a) above.
Payment for this work will be made under the Tender item “Brushing”.
Mr. Tuthill advised that in accordance with those specifications the work crews (in this case workmen associated with Campbell’s Trucking) were instructed to cut and remove trees on one side of the Drain only so that an industrial hy-hoe could move and work with sufficient clearance on one side of the drain. The larger diameter trees (4” or larger) were to be cut and piled so as to be made available to the owner of the lands; and all brush was to be piled and burned. No more work was to be done than was necessary. Mr. Tuthill admitted that the work went well and quickly, but by the middle of April the ground was warming up and the hy-hoe was making large ruts. The Drainage Superintendent indicated that the operator endeavoured where possible to smooth out the ruts with the bucket of the machine.
In his cross examination of the Drainage Engineer, Mr. Knott, Counsel for the Appellants, made reference to a letter from the Rideau Valley Conservation Authority, dated February of 1999. In that letter permission was granted for the cleanout of several municipal drains, including the Ford Drain, conditional upon the implementation of several measures specified. The General Description of the Specifications advised that a cleanout only was permitted to the extent of the original engineering standards. The letter went on to state
“The total removal of all living healthy trees from the banks of the drainage works on the premise the drain will never again be clogged with branches is considered counterproductive”.
Under Specific Conditions
“Any bends in the channel shall be stabilized, preferably with unconsolidated rock rubble, to prevent erosion.
Riparian vegetation shall not be altered on more than one side of the drain. Where vegetation must be altered on one side of the drain the southerly side of the drain shall remain unaltered.
-Where riparian vegetation has been removed, the proponent shall reestablish bank vegetation when at least 4 weeks remain in the growing season.
All disturbed soils including spoils shall be stabilized prior to completion of the work
where banks are stabilized by planting grass or hydro seeding work shall be completed no less than 4 weeks before the end of the growing season
spoils that are not utilized for construction purposes, shall be stabilized or removed from the site.
Work in water shall not be conducted when flows are elevated due to such events as storms or seasonal floods.
A channel flow check shall be used to capture all mobilized sediments. In addition....
other measures including but not limited to...silt fences, straw bales or sand bags may be used to trap mobilized sediments.
all measures used to trap mobilized sediments shall be maintained in effective working order.
Sediment and erosion control measures shall be implemented prior to construction and inspected on a daily basis to ensure that they are functioning. It is incumbent upon the proponent and contractors to ensure sediment and erosion control measures are functioning properly and the area upgraded as directed.
- sediment and erosion control measures shall be left in place until the site has stabilized.
To minimize impacts on spawning fish; brushing of sideslopes, bottom cleanouts and debris cleanouts shall be restricted to the following time period: June 30 to April 30.
A full cleanout shall be limited to the period: June 30 to September 15
Any deviation from the application prepared by the proponent and/or the directions outlined in this authorization will require the approval of DFO and RVCA.
All mitigation measures shall be implemented to the satisfaction of the DFO and the RVCA. “
In response to questions put to him by Mr. Knott, Mr. Tuthill advised that he had instructed the work force not to do a full cleanout, but merely a bottom cleanout removing only debris, particularly trees that had fallen into the drain. He stated that in his opinion the workmen had not gone beyond their instructions and that re-vegetation had not been undertaken because there had been no effort to remove the stumps or roots. Mr. Tuthill further advised under questioning by Mr. Knott, that sediment and erosion and control measures had not been implemented largely because the banks of the drain had not been disturbed and that there was no grubbing undertaken. He observed that water in the drain at the time of the work was not high and that there were no storms or floods during the period of maintenance.
Mr. Steeves, one of the Appellants, next presented evidence advising the Referee that he had purchased his farm, consisting of about 55 acres, several years ago and that it was presently a hobby farm, but he intended to introduce beef cattle in the future. He indicated that he and his common-law spouse, the other Appellant, fell in love with the property and frequently walked the property perimeter, the property being one mile in depth. He advised that the property was crossed by three separate municipal drains or branches of municipal drains and that the Appellants had planted 75 trees and 275 seedlings in 1998 along the side of the Branch 1 of the Municipal Drain. Mr. Steeves allowed that there had been damage by the Ice Storm and trees had fallen into and across the Municipal Drain. He advised that four days prior to the work being done on his property he was approached by representatives of the Contractor who sought his permission to access the drain by crossing over his property. He stated that he denied the request on the basis that the ground was too wet. He went on to advise that he was astonished four days later to be informed by family members that work was being done on his land in connection with the Branch 1 of the Ford Drain. He immediately went to the back of the property and advised the contractors to discontinue the work and leave his property, which they did. Mr. Steeves immediately took a video tape of the work site and the same was shown as part of the evidence during the Hearing. Mr. Steeves advised that 38 trees had been cut, the largest of which was approximately 19 inches in diameter. He stated that 20 to 25 seedlings had been lost and indicated that the contractor had gained access to his property by crossing through the fence from the neighbouring property and in the process had to cross over the Drain. Mr. Steeves advised that he regretted the cutting of the trees because he had appreciated them because (a) of their aesthetic value; (b) of their recreational value; and (c) of their potential as shade trees for beef cattle. Mr. Steeves indicated that he would like to have the trees restored and advised that he had obtained estimates which indicated a cost of $1500.00 to $1600.00 for each tree. Mr. Steeves concluded his examination in chief by indicating that a major problem in these circumstances was that there was no proper consultation or notice given and that all problems could have been avoided, in his opinion, if a proper protocol had been adhered to.
In the cross examination Mr. Steeves agreed that the length of the Drain where the alleged damages occurred on his property was approximately 200 meters. He advised that although the Contractor had approached him four days in advance he had not specifically been told that work was going to be done on his property. He agreed that the area had suffered severe damage from the Ice Storm and that work was required on the Drain. He admitted to Counsel for the Township that he had ordered the contractor immediately off the property. Under cross examination Mr. Steeves stated that he did not object to the quality of the work, but merely to the manner in which the entire exercise was conducted. He complained about the lack of notice and use of a hy-hoe which he believed to be too large a machine for the purpose required. Mr. Steeves admitted that the workmen were required to leave before they had an opportunity to clean up or finish the work on the site.
Mr. Tuthill returned to provide reply evidence and he advised that he had walked over the Appellants’ property in January and it was typical of other sectors of the drain and that maintenance work was required along the full extent of Branch 1. He indicated that there were no complaints from any of the owners of land with the exception of the Appellants. He advised that in his professional opinion the work that was done was required and that it was reasonably done. He stated further that the one side of the Drain had been cleared back approximately 10 meters on average. Mr. Tuthill advised that the trees had been cut on the south side of the Drain because that was where the work had been done before and in his opinion there were fewer trees to cut.
Mr. Gerald Eckland, one of the Campbell Trucking workmen, was called by the Township and advised that they had worked for three or four weeks before they reached the Appellants’ property. He testified that they had received no complaints from the other owners up to that time. He indicated that the hy-hoe was required because large trees had fallen either into the drain or had lodged across the drain and that they could only be removed by that machine. He said that they had only cut the width of the machine, approximately 12’ wide plus the length of the bucket arm, an additional 20 feet. Mr. Eckland indicated that most of the trees were soft maple and they had worked on the Appellants’ property for approximately one hour before they were required to leave.
Mr. Woolsey a heavy equipment operator of some 25 years’ experience also gave evidence for the Township. He indicated that the hy-hoe was not over sized, because the work required its full power and reach. He indicated the width required by the back hoe was a minimum of 25 feet. The operator indicated that they had done well over half of the Steeves’ property when they were required to leave. He admitted that the hy-hoe had left large ruts on the Appellants’ property, and stated they would have made an effort to fill in the ruts where possible if they had had an opportunity to do so.
Mr. Knott, in his submissions, conceded that the Township had a statutory duty to do the work. He advised that the claim of negligence only related to the manner in which the work was done. He argued that if the work had been done in either mid winter (frozen) or mid summer (dry) that the damages would have been much more limited. He noted that a full year had passed since the Ice Storm. He advised that, if properly consulted, his client would have allowed access to the workmen, but would not have permitted the hy-hoe access to his property. Mr. Knott outlined his clients’ complaints as follows:
(a) the use of the hy-hoe was excessive and unnecessary;
(b) 38 trees need not have been cut, particularly if the hy- hoe had not been employed;
Mr. Knott pointed out that specifications referred to in the Drainage Report provided for work to be done “in or on the banks”, but not in an excessive swath some distance from the banks. The same specifications further indicate that “ it is not the intention that extensive clearing take place”. In this case Mr. Knott maintained that excessive clearing did take place. Mr. Knott also pointed to a letter received by the Township from the Conservation Authority which indicated that “the total removal of all trees is counterproductive and that no planting had been done to ‘re-establish the banks’“.
Mr. Knott concluded by stating that he had some difficulty in quantifying the damages, but indicated that the 38 trees cut could be replaced at a cost of $1,500 to $1,600 per tree for a total cost of approximately $63,000.00. He therefore requested that the damages be awarded in the amount of $63,000.00 to allow the trees to be replaced with 7” saplings.
Mr. Cliffen, in his submissions, indicated that the basic facts were not in dispute and that it was conceded that the Township had a right and indeed a duty to perform the work. He pointed out that the Drainage Engineer had provided professional evidence indicating the work was required and the work was reasonably done. He stated that the Engineer further advised that at any time of year the same machine would be required to handle the larger trees. Mr. Cliffen pointed out that no appraisals had been provided with respect to devaluation of the property and that no written evidence of replacement costs had been provided. Mr. Cliffen quoted Section 63 of the Drainage Act which reads as follows:
“(1) The contractor and the contractor’s assistants when engaged in the construction, maintenance, improvement or repair of a drainage works may, with their equipment, enter upon whatever lands are necessary to complete the work within the working space designated in the engineer’s report.
(2) Every person who wilfully interferes with or obstructs the contractor or any of the contractor’s assistants in the exercise of the powers conferred by subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1,000.00. R.S.O. 1980, c. 126, s. 63”
Mr. Cliffen concluded by stating that the only issue was whether or not the Township was negligent in conducting the work. He referred to Supreme Court Decision of Tock v St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989], 2 S.C.R. 1181
He stated that that case established that where a municipality had a duty to undertake a work that if that work resulted in a nuisance it was justified unless the municipality was negligent in conducting the work.
The Drainage Referee reviewed the evidence and the legal authorities provided by Counsel. The Referee agrees that the sole issue to be determined in this matter is whether or not the Township was negligent in undertaking its work of repair. The Drainage Act imposes on the Municipality, not only the authority to undertake maintenance and repairs of drains, but imposes a duty, using a mandatory word “shall” in Section 74 of the Drainage Act and the specific word of “duty” in Section 79 of the Drainage Act.
I find that the municipality was not negligent in the manner in which the work was performed by the workmen and note that as much was conceded by the Appellant, Mr. Steeves.
I further find that the use of the hy-hoe in the circumstances was justified and necessary and accordingly that did not constitute negligence. The size and number of trees required to be moved from the Drain dictated the use of a large machine.
I further find that conducting the work in March and April in the circumstances was also justified, particularly in view of the fact that the Township had very short notice with respect to the availability of the Ice Storm Grant and had a specific time frame during which the work could be executed. Supporting that decision is the fact that the landowners were fortunate in not having to pay for this work of repair.
I further find the conduct of this work fell within the specifications of the Rideau Conservation Authority, noting in particular that there was no grubbing or significant disturbance of the banks and indeed very little cleaning in the bottom of the drain other than the removal of debris.
However, I do find that the municipality fell short in terms of notification, communication and consultation with the owners and in particular the Appellants, Kirk Steeves and Dawn Coyle. Although the Drainage Act is not specific in requiring formal notification to owners by a municipality when undertaking a work of repair, it is the custom of the Ministry of Agriculture, Food and Rural Affairs to train its drainage superintendents to either provide notice to owners in the form of a written communication and/or through the form of a site meeting. I find in the circumstances that the effort made by the contractor to seek permission to enter upon the Appellants’ land four days before the work commenced was not sufficient, although it served to put the Appellants on notice that something was about to take place with respect to their municipal drain. In this case, I believe that if sufficient notice had been given either through written communication or through the procedure of a site meeting the difficulties and hostilities that were experienced in this matter would, in all probability, have been avoided. I recognize that here we have something of a clash of cultures, inasmuch as the Appellants were newcomers and were not accustomed to practices that are assumed to be normal by long term farmers. The Appellants must accept some responsibility for their failure to inform themselves both with respect to the customs and practices relating to municipal drains in general and in particular as to the intentions of the Contractor once they had been notified that access over their property to the drain was being sought.
I therefore find the Township Officials were negligent in their failure to communicate with and to satisfactorily notify the Appellants of their intentions with respect to the repair of the drain.
I also find that there was contributing negligence on the part of the Appellants in their failure to inform themselves sufficiently with respect to this matter (having in mind that their property was the host of three municipal drains and/or branches) once they had been approached by the contractor seeking permission to access the drains over their property. Further the failure of the Appellants to permit the Township Officials to complete the work on their property served to prevent any mitigation that might have been made of the alleged damages caused.
With respect to the issue of damages I am not satisfied that significant losses have been proven. The Appellants, have a special subjective regard for their property, but that does not necessarily translate into objective values. There was no specific proof as to what number of seedlings beyond the working perimeter of the hy-hoe were lost. Secondly, the cost of replacing soft maple trees in this area of the farm at a cost of $1500 to $1700 per tree is, in the circumstances, excessive. There is nothing in the circumstances of this case that make these trees uniquely special or of exceptional value. The necessity of having these trees for future shade for beef cattle is both speculative and remote in view of the fact that there are obviously many other trees subsisting on the property as indicated by the map filed by the Appellants as Exhibit 8 at the Hearing.
I am further not satisfied that the ruts on the property resulting from the workings of the hy-hoe in this location caused permanent damage of any significance.
As a result, I am awarding damages of $1,000.00 in favour of the Appellants, reserving the issue of costs until submissions have been received from Counsel. The submissions may be made in writing or orally (after a convenient hearing date has been determined) at the option of Counsel. The award for damages is to be paid by the Township of Montague out of General Revenues.
DATED July 17, 2000
Delbert A. O’Brien, Q.C.
Ontario Drainage Referee