ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Bosanquet (Town) v. Eizenga et al
2000 ONDR 4
DATE OF DECISION:
2000-04-17
2000-04
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
‑AND‑
CORPORATION OF THE TOWN OF FOREST
RESPONDENT AND APPELLANT IN PART
DECISION
The Appeal of the Corporation of the Town of Forest was heard by the Ontario Drainage Referee on the 7th, 8th and 9th days of February, 2000 in the Superior Court of Justice, Sarnia, Ontario.
Legal submissions, both with respect to the substantive issues and costs, were subsequently made before the Referee on the 29th day of February, 2000.
The Appeal of the Town of Forest was pursuant to a previous Decision of the Ontario Drainage Referee dated the 25th day of January 1999 wherein permission was specifically granted to the Town of Forest and to any newly assessed owners within the Town of Forest to appeal its or their assessments arising from the Revised Drainage Report. An affidavit was duly filed by Mr. Waters, made by the Clerk of the Town of Bosanquet, confirming that the Drainage Report had been duly circulated to all assessed owners with a Notice attached thereto advising them of their right of appeal to the Drainage Referee. On the date set for the Hearing of the Appeal, namely the 20th day of December, 1999, the Referee had ordered, in accordance with the request of Mr. Robertson, solicitor for the Town of Forest, that the Appeal of the Town of Forest be adjourned until the 7th day of February, 2000 to allow more time for preparation, notice, etc.
At the Hearing on the 20th day of December, 1999, the Ontario Drainage Referee had further ordered in response to the request of the Solicitor for the Town of Forest that the Drainage Engineer, Mr. Veitch, provide a Statement of Rationale for the block assessments within the Town of Forest. Mr. Veitch confirmed that he had prepared such a Statement of Rationale and delivered the same to the Solicitor for the Town of Forest on the 10th day of January in the year 2000. Said Statement was filed as Exhibit 10.
At the commencement of the Hearing the Referee advised that he had received two Appeals from individual owners through the offices of the Clerk‑Administrator for the Town of Forest, first from C. Leo Fritsche and a second from Mrs. E. McLeod. Both Appeals were addressed to the Clerk of the Town of Forest. The Referee directed the Clerk of the Court to call the names of both Appellants and neither was present. The Referee noted that in the event that there was not an appearance before the conclusion of the Hearing that the Appeals would be dismissed.
Mr. Veitch, the Drainage Engineer, advised the Court that he had made the amendments to the watershed in accordance with the Order referred to above to include “those areas in the Town of Forest that provide flow into the Coultis Drain”. He advised that in extending the watershed he had relied upon the evidence given in the previous Hearing by Engineers Bartlett and McBride and had done a document review but had not made a physical view of the site. The Drainage Engineer advised that he had reviewed the Jefferson Street Outlet Drain Report dated the Ilth day of February 1999, but that he nonetheless extended the watershed to Clyde Street believing that flows would still be directed into the Coultis Drain from the area south of Jefferson Street. Such flows, he observed, would be inevitable in circumstances where a rainfall exceeded the 5 year storm capacity of the Jefferson Drain.
Mr. Veitch was firm in his view that overland flows from the area south of Jefferson Street would still flow north into the Coultis Drain, but he acknowledged that he had not made a calculation of the extent of those flows. The Drainage Engineer on cross‑examination advised that he was aware, before completing his Report, that a plug had been installed in the Union Street Drain at its intersection with the Jefferson Street Drain so as to terminate the historic surcharging which formerly had conducted surplus flows north into the Coultis Drain. He also advised Mr. Robertson that he had followed the Todgham method with respect to assessment and had assigned different run‑off coefficients, namely .1 for agricultural lands, .4 for roads in the Town of Bosanquet, .5 for the County Road and a factor of 15 for the roads within the Town of Forest. He explained that a factor of 15 was used with respect to roads within the Town of Forest because that part of the watershed was fully urbanized with curbs, gutters and a complex system of catchbasins.
With respect to the special one time historic levy made pursuant to Section 66 of the Drainage Act, Mr. Veitch advised that he had not made any special calculations but had merely followed the direction of the Drainage Referee.
Joe Adams, Drainage Superintendent for the Town of Bosanquet, presented evidence in which he advised that 80‑90 % of the Coultis Drain construction had been completed. He had recently inspected the Drain and noted abnormally high flows for mid winter from the upstream areas, e.g. Town of Forest, while a current examination of agricultural tiles indicated they were dry. He had sent water samples from the Drain for laboratory testing in London and the results indicated the presence of E Coli and chlorine. However, Mr. Adams acknowledged that he was unable to pinpoint the source of the contamination.
Mr. Trudel presented evidence on behalf of the Town of Forest. He advised that he had completed the Drainage Report for the Argyle Street Drain, the Jefferson Street Outlet Drain and the Eureka Street Drain, all in the Town of Forest on the 11th day of February 1999. He indicated that this Report had been commissioned as a result of the findings of a Preliminary Report dated October 30, 1998. The Preliminary Report had been filed in previous Hearings and indicated that the Jefferson Street and the Queen Street Storm Sewers would, because of cross connections in times of heavy flow, surcharge and enter the Union Street Drain which carried the flow north into the Coultis Drain. Mr. Trudel prepared a map of the watershed in the Town of Forest for both the Jefferson and the Coultis Drains. The map was entered as Exhibit 16 and is attached to this Decision as Schedule “A”. The map is attached to the Decision because it illustrates quite simply the areas of duplication in the watersheds which are marked in gray and is very helpful in outlining and illustrating many of the complexities that arose in the evidence.
Mr. Trudel advised that Jefferson Street Drain had an excellent outlet in Hickory Creek and was increased to a five year storm flow capacity. He stated his objective was the isolation of the two watersheds, one from the other. He indicated that the historic tile connection at the Jefferson and Union Street intersection had been plugged and considerable reconstruction had been done on Queen Street to carry flows west into the Hickory Creek. All the work had been completed by July of 1999 and no cut‑off assessment had been assigned to the lands north of Jefferson Street. Mr. Trudel stated that in his professional opinion the shaded areas should not be included in the Coultis Drain's Watershed and therefore should not be assessed. Mr. Trudel advised that the total cost of the drainage works completed by the Town of Forest was the sum of $330,000.00.
Mr. Trudel further maintained that surface flows were to the west rather than to the north and pointed to the contours which disclosed a 7.5 meter fall to the west by northwest. He further pointed out that the road grades illustrated a fall to the west almost doubled that of the fall to the north.
Mr. Trudel, in referring to the assessment of the roads in the Town of Forest, advised that in his opinion a factor of 15 was excessive. He stated that in his opinion it was inconsistent with the Todgham method and that a factor of 5 would be more appropriate. He stated that, in his opinion, the curb and gutter “fabric of the streets” in the Town of Forest with its grass boulevards was comparable in run‑off co‑efficient to the County Roads with asphalt pavement and gravel shoulders. In addition, Mr. Trudel argued that there was considerable depressional storage within the urban area of the Town of Forest. Mr. Trudel presented in evidence a calculation using the Otthymo method designed to assess the volume of rainfall generated south of Jefferson Street and to determine the extent of ponding within the urban green areas. The calculation was filed as Exhibit 23 and the conclusion which Mr. Trudel drew from the calculation was that the appropriate run‑off factor for the roads ought to be 4.1.
Mr. Trudel presented his recommendations.
(a) With respect to the watershed, he recommended that the area of duplication, namely 10.3 hectares should be removed from the urban lands assessed and that 2.4 hectares of roads should be removed from the Roll Assessment. As a consequence, Mr. Trudel advised that the assessment in the Town of Forest be reduced overall by approximately $14,000.00. He further stated that he, together with Mr. Burns and Mr. McKenzie, had attended at the office of Mr. Veitch in January of 1999, urging that the Jefferson Drain Work be taken into account and that these adjustments be made.
(b) With respect to the one time special historic levy of $10,000.00, Mr. Trudel pointed out that the Referee had not specified the exact amount that ought to be charged, but had merely put a $10,000.00 limit on the amount assessable. He therefore argued that there ought to be a historic calculation of the use made of the Coultis Drain by the Town of Forest and of the contributions with respect to maintenance, etc. made by the Town of Forest. He indicated that he did not have access to the records and therefore could not make such a calculation himself.
Mr. Trudel, on cross examination by Mr. McBride, admitted that the Town of Forest had no storm water management programme. He further admitted that in the Todgham method the runoff factors were merely tools of calculation and that in the end the Engineer was to apply a fairness test which was discretionary and overriding. Mr. Trudel, under cross examination by Mr. Waters, admitted that the depressional storage was only significant with respect to a major storm event. He further admitted that even south of Jefferson Street a portion of the surface flow would be to the north, although he maintained the predominant flows were still to the west. Mr. Trudel agreed that the Town of Forest had permitted private hookups to be made to the municipal drains, although new hookups were discouraged. He also conceded that there were private tiles in rear areas of lots, which private tiles were connected to the storm sewer drains even in the areas south of Jefferson Street. Mr. Trudel further agreed that the illegal hookups to the Coultis Drain in the Town of Forest may have existed for a period exceeding twenty years. He advised that he would recommend block assessment within the Town of Forest for urban lands.
Under cross examination by Paul Courey, Mr. Trudel admitted that the drain records for the Town of Forest were “less than perfect”. Mr. Trudel conceded that the Public Works for the Town could well have made unauthorized connections to the municipal drains. Mr. Trudel advised that he had not had an opportunity to examine all drains and there could be connections of which he has no knowledge.
Mr. Trudel, when questioned by Mr. Courey, agreed that in making his calculations for depressional areas, he had not undertaken field work, but had merely worked from soil mapping and other records. He confessed that depressional areas could be filled up at any time and there was no municipal by‑law to restrict such filling. Mr. Trudel agreed that the Town of Forest had had proper legal notice of the Coultis proceedings and it was its responsibility to inform other affected parties in Forest. Mr. Trudel further agreed that the contour mapping indicated a slope toward the open Coultis Drain of 7.5 meters within the watershed. Mr. Trudel stated that Mr. Veitch had given him one and one half days to assist in making the final assessment and that he had not been able to accommodate the time schedule and in any event was of the opinion that Mr. Veitch should make the assessments independently. He informed Mr. Veitch that the work was nearly completed in June of 1999 and had not contacted Mr. Veitch further until the Appeal was filed in November of 1999.
Mr. John Burns, C.E.O. of the Town of Forest, presented evidence at the Hearing. He indicated that the Town of Forest had received due notice with respect to Report No. 1 and No. 2, but not with respect to the Revised Report (Revised pursuant to the Order of the Referee on December 1, 1998). He indicated that the Town of Forest was not concerned with the first Report where non agricultural urban lands were assessed $10,641.00; however, it was very concerned when the assessment was increased by nearly $14,000.00 plus the special assessment of $10,000.00. Mr. Burns indicated that within the area of duplication in the watershed that a variety of records showed private storm sewer connections.
Mr. John Evans, currently an employee of the Township of Plympton, was called to give evidence by Mr. Paul Courey. He introduced a variety of photos showing the flows in the Coultis Drain and at the outlet of the Jefferson Drain. He also introduced a series of photos which showed that the Coultis Drain was serving areas north of North Street. He advised that the northern area of duplication, namely west of Union Street and north of Queen Street was served by an 8” plastic pipe which flowed into the Coultis Drain to the north. He indicated that that plastic pipe serviced four lots in the area of duplication. He testified that he had personally seen it installed.
Mr. Evans then proceeded to introduce a series of photos which he alleged showed surface flows to the north along Union Street, at the various intersections. He testified that these surface flows resulted from a moderate rainfall. Mr. Evans testified that the plug that was installed in the drain at the Jefferson intersection could easily be removed by the work force of the Town of Forest. He stated that in view of the history of illegal connections made by the Town of Forest work crews, that that was a real possibility.
Under cross examination by Mr. Robertson, Mr. Evans ceded that he had not calculated the velocity of the flows in the Coultis Drain or at the outlet of the Jefferson Drain.
During cross examination by Mr. McBride, it was established that Exhibit 16 was drawn incorrectly and that the original outline of the watershed in the Report of September 1, 1998, (being Exhibit 27 at the First Hearing) correctly showed the eastern boundary of the watershed to be between Albert Street and Gore Street.
Mr. Bartlett, P.Eng. presented expert evidence on behalf of Paul Courey. He stated that in his opinion the assessments were fair and appropriate in the final report. He indicated that he had prepared a plan based on Ontario Base Mapping which showed that there was a 10 meter fall in the watershed toward the northwest. He indicated that there were approximately 70 catchbasins in the watershed and because there was no storm management within the Town of Forest there would be a rapid and steep flow downstream from the Town of Forest. He stated that it would precede the flows from the farmland and would therefore utilize all the capacity in the Coultis Drain in the event of a large storm. Mr. Bartlett agreed that he was familiar with the Todgham method and that Factors ranging from 3 to 8 with respect to roads were common. However, in this particular case, in the application of the fairness test, he agreed with Mr. McBride that, because of the steep grades in the Town, coupled with 100 % urbanization that a multiple of 2 should be applied. Therefore, in his opinion, a Factor of 15 was appropriate for the roads in the Town of Forest. Mr. Bartlett stated that, in his opinion, the special assessment in the amount of $10,000.00 was insufficient and should be increased in view of the 20 plus year history of illegal use of the Coultis Drain by the Town of Forest.
Under cross examination by Mr. Robertson, Mr. Bartlett agreed that he was not aware of any subsurface connections south of Jefferson Street. Mr. Bartlett said he had observed surface flows flowing north on Union Street, but that he had not made any calculations. Mr. Bartlett stated that roads in Bosanquet had no curbs or gutters and the County Road, which is paved with gravel shoulders and a ditch, was appropriately given a Factor of 5. He indicated that in Forest where the streets were fully paved and in some places three lanes wide with curbs, gutters and catchbasins, there was a much greater run‑off factor, particularly when coupled with the significant slope. Mr. Bartlett indicated that the topography of the whole watershed, with the exception of the Town of Forest, was flat. Mr. Bartlett observed that the Town of Forest was favoured with gravity and in the event of a large storm, because of the uniquely substantial grade at the upper end of this drainage system within the Town of Forest, the effect would be to send the equivalent of a bowling ball of water down the drainage system.
Mr. Bartlett also suggested that consideration should be given to extending the watershed north of North Street.
Mr. Trudel, in reply, stated that the Factor of 15 for roads in the Town of Forest was simply not fair in the circumstances. He repeated that because of the substantial work done on the north side of Union Street that the northern area of duplication was now fully serviced by a substantial storm sewer running directly in front of the lots which provided a perfect outlet. Under cross examination by Mr. Courey he admitted that because of the complexities of old drains in the old area of Forest, that it was difficult to exactly determine the watershed. He admitted that an 8” pipe had been reconnected at the intersection of Queen and Union Streets, which appeared, although it was somewhat of a mystery, to interconnect the two watersheds.
On the morning of the 29th of February 2000, the parties made submissions with respect to Issues of Fact and Law. Mr. Robertson, on behalf of the Town of Forest, advised that there were three outstanding issues germane to its appeal:
(a) the definition of the watershed;
(b) the level of assessment of the roads in the Town of Forest; and
(c) the special historical outlet charge pursuant to Section 66.
Dealing first with the issue of Section 66, Mr. Robertson advised that there was no evidence to support the degree of historic use. He advised that the onus of proof was, in his opinion, on the Drainage Engineer to examine the historical record and calculate the percentage of costs to be attributed to the Town of Forest.
With respect to the definition of the watershed, Mr. Robertson argued that Mr. Trudel, P.Eng. had filed Exhibit 16 (which is the schedule attached to this Report) clearly outlining the duplicate areas of the watershed. He argued that Mr. Trudel's evidence should be preferred because Mr. Veitch had admitted that he had not done an examination of the extended watershed in the field. Mr. Robertson argued that there was a northern watershed duplication and a southern watershed duplication and both areas should be excluded from assessment in the Coultis Drain. Mr. Robertson stated that since the Drain had been plugged at the intersection of Union and Jefferson that any further assessments would be improper inasmuch as water no longer was “artificially caused to flow” to the Coultis Drain system. With respect to surface flows, he indicated that the slope to the west was double that of the slope to the north and that the absence of storm water management in the Town of Forest was a red herring. Mr. Robertson challenged the evidence of Mr. Adams as being unscientific and irrelevant.
Mr. Robertson went on to argue that in the event that the duplicate watersheds were to be assessed, then there should be a calculation of the volume and the rate of flow. The Coultis Drain would only be utilized in the event of a major storm exceeding a five year storm. Mr. Robertson argued that there should be some calculation of how often this would occur and some evaluation of the volume of flow.
With respect to the issue of assessment of the roads in the Town of Forest, Mr. Robertson said the factor of 15 % was entirely excessive when compared to the factors in Bosanquet ranging from 3 % to 5 % for similar roads. Mr. Robertson stated that the 66 foot road allowance, whether it consisted of curbs and gutters or County Road asphalt with ditches, ought to have the same co‑efficient for run‑off applied. Mr. Robertson pointed out the highest run‑off co‑efficient outlined in the Ministry's Design and Construction Guidelines was a factor of 9. Mr. Robertson concluded by arguing that the factor of 15 had been arrived at improperly, by a consensus of the involved Engineers rather than by discretionary judgment of the official Drainage Engineer.
Mr. McBride, in his submissions, stated that since the plug had been applied at the intersection of the Jefferson and Union Drain, that the duplicate area of the watershed should be assessed on the principle of providing the extra capacity necessary for a storm event in excess of a five year storm. He concluded by restating that the factor of 15 for roads in Forest was in all the circumstances fair and equitable.
Mr. Paul Courey, in his submissions, advised that the onus was on the Town of Forest, as the Appellant, to prove that it had not been properly assessed by the Drainage Engineer in the Coultis Drain. He argued that the evidence of the Town of Forest had been undermined by their admission that the records were poor and they did not have precise knowledge of the private drains and their connections within the watershed. More specifically, Mr. Courey argued that the Town was unable to provide evidence with respect to the Drains on Washington and James Streets, both private and public, which in all probability he maintained directed flows in part or totally to the Coultis system. He maintained that, because of the limited capacity (one year storm) of the Union Street Drain, that excessive surface flows flowed north into the Coultis system.
With respect to the northern duplicated area, Mr. Courey noted that the uncontroverted evidence of Mr. Evans indicated that that area was drained to the north into the Coultis system by an existing 8 inch tile.
Mr. Courey argued that it appeared that a few property owners in the north east corner of the watershed may not have received notice of the current appeal because of the inaccurate maps supplied by Bosanquet. However, because they had been assessed to the Coultis Drain and so would have had notice from the first Report, they were in law on notice of the entire proceedings. Mr. Courey stated that the increase in their assessment amounted to only 532.00; so that if there was any question of improper notice, the proper remedy would be to charge those few dollars directly to the Town of Bosanquet.
With respect to the issue of the Special Assessment, Mr. Courey argued that it should be increased in accordance with the recommendation of Mr. Bartlett, P.Eng. He noted that the illegal connection may have been in place for as long as 30 years and that neither Mr. Monteith, P.Eng. or Mr. McKenzie, P.Eng., both of whom had particular knowledge, had been called as witnesses. He therefore argued that a negative inference could be drawn from their absence.
In any event Mr. Courey advised that a Special Assessment of this nature could not be calculated with mathematical precision and the Court was justified in making a finding based on the material available.
With respect to the Outlet Assessment for the Town of Forest, Mr. Courey stated that the only significant issue related to Road Assessment. He argued that the factor of 15 was justified because the Town of Forest had gravity on its side, was at the upstream end of a lengthy watershed and was immediately served by a 42” tile. He pointed out that Mr. Bartlett, P. Eng. had indicated that in the circumstances of a major storm event, gravity would send a shock of water from the top end of the watershed in the Town of Forest down the Coultis Drainage system.
Consequently, he stated the Town of Forest, including the duplicated areas should be assessed in the Coultis Drain to handle large storm events. He pointed out the following evidence, namely:
(a) imprecise knowledge of private drains;
(b) absence of urban water management system;
(c) absence of by‑laws to maintain storage area;
(d) fabric of the road structure, a percent of which ran north and south; and
(e) the slope of the land as evidenced by the contours indicated that the slope was to the northwest.
All justified a significant assessment for outlet within the Town of Forest.
Mr. Waters, in his submissions, argued that the Town of Forest was responsible for giving proper notice to its residents and had plenty of time to become part of the process. He argued that the confusion with respect to private drains, including the revelation that there were two drains running north on Union Street, added to the difficulty in differentiating the watersheds. He argued that the Town of Forest had not contributed evidence with respect to the potential drains in Washington Street, in James Street and with respect to connections north of North Street. He concluded by stating that inasmuch as they had opened up the issue to appeal the issue of Special Assessment, that it was open to the Court to increase that Assessment beyond the previous $10,000.00 limitation imposed.
The Drainage Referee, having considered all the evidence, arrived at the following factual conclusions:
That the watershed, as outlined on Exhibit 16 attached hereto, ought to be amended to comply with the watershed as shown on the First Report to include lands in the northeast quadrant extending between Prince and Albert Streets north to North Street.
That all of the lands ought to assessed into the Coultis Drain, including those areas marked “Watershed Duplication”, both north and south on the basis that in the event of a major storm event and certainly in events exceeding a five year storm that the Coultis Watershed would provide an essential outlet for the entire watershed.
That the Jefferson Street Drain now provides an additional outlet for those portions of the watershed marked “Watershed Duplication”, both north and south and that accordingly some adjustment in the outlet assessment with respect to these areas ought to be made.
That the uncertainty caused by lack of records within the Town of Forest with respect to drains and their connections, both private and public, made any effort to totally isolate the duplicate watersheds impossible.
That the Town of Forest receives a unique benefit from the Coultis Drain because of its location at the upstream end of the Drain, coupled with its substantial 7.5 meter urban grade and a 42” upstream outlet. The above mentioned combination of circumstances ensures that the flow impact of a major storm event is transferred downstream in the Coultis Drainage system thereby requiring substantially greater capacity in that system.
I THEREFORE ORDER THAT:
(a) the Special One Time Historic Assessment assessed to the Town of Forest, pursuant to Section 66 of the Drainage Act, be maintained at the level of $10,000.00.
(b) that the watershed of the Coultis Drain extend as shown on Exhibit 16, being Schedule A attached hereto outlined in blue, be amended to include the lands in the North East quadrant as originally shown in earlier Reports and as shown on Sheet No. 1 of 4 attached to the Drainage Report of the Coultis Drain dated December 1 1998.
(c) that the area shown on Schedule “A”, attached hereto shaded and marked “Watershed Duplication”, both north and south, within the Town of Forest, have the Outlet Assessment relating to the “areas of duplication” reduced by 50 % .
(d) that the increased assessment for private urban lands within the northeast quadrant of the Town of Forest amounting to $532.00 be assessed as a one time assessment to the Town of Bosanquet so as to avoid any complaint with respect to lack of notice.
(e) that the Appeals of C. Leo Fritsche and of Elsie 1. McLeod are hereby dismissed.
Submissions with respect to the matter of costs, both legal and engineering, were made at the conclusion of the Hearing on the 29th day of February 2000. The Parties indicated at the commencement of the proceedings that they were in agreement and had reached a consensus with respect to a number of issues relating to the matter of costs. They indicated that:
(a) they had reached agreement with respect to both legal and engineering costs relating to all proceedings prior to the Appeal of the Town of Forest on the 20th day of December, 1999 and that they would be presenting an Order on Consent to the Drainage Referee at a later date with respect to the same.
(b) the Referee need not fix the legal costs of Mr. Waters nor the engineering costs of Mr. Veitch inasmuch as such costs would be included in the costs of the Drainage Work.
(c) all the Parties agreed that the engineering costs in the amount of $5,000.00 with respect to the attending Engineers, namely Mr. Bartlett, Mr. McBride and Mr. Trudel would be reasonable relating to appearances of December 20, 1999 and subsequent.
Mr. Robertson argued that the Special Historic First Time Assessment pursuant to Section 66 of the Drainage Act should not be considered in the calculation of costs. He said it was his understanding that the costs of Mr. Bartlett and Mr. McBride would be covered as part of the works unless otherwise ordered. He added that the costs should be ordered on a Party and Party scale at the Superior Court Level and he stated that in his opinion the range of $5,000 to $6,000 was proper for fixed legal costs. He pointed out that in his opinion Mr. Trudel would have spent more time in preparation for the Hearing with respect to the Appeal of the Town of Forest than either Mr. Bartlett, Mr. McBride or Mr. Veitch.
Mr. Waters, solicitor for the Town of Bosanquet, indicated that he did not disagree with the suggested numbers put forward by Mr. Robertson.
Mr. Paul Courey argued that the Town of Forest should be liable for costs with respect to the Appeal on a Party and Party basis on the scale of the Superior Court. He pointed out that although it was traditional not to award significant costs in drainage proceedings, in this case the Town of Forest was financially able to pay costs and the Town was not part of the solution, but rather was part of the problem. Mr. Courey argued that four days had been consumed in proceedings dealing only with the assessment of roads in the Town of Forest and the amount of the Special Historic Assessment. He maintained that the Town of Forest had not properly participated nor co‑operated and therefore ought to be penalized in costs. Mr. Courey added that in his opinion the Town of Bosanquet and the Town of Forest had not done proper field work in preparation for the Hearing, leaving the burden of presenting the bulk of the evidence to Mr. Evans and Mr. Bartlett.
The Drainage Referee considered the submissions and concluded from all the evidence that there had not been sufficient preliminary communication between the Drainage Engineer, Mr. Veitch and the Engineer for the Town of Forest, Mr. Trudel. Whatever the reason for the failure of communication, it was apparent that there was sufficient time after the Jefferson Drain Report had been completed in February of 1999 to communicate the particulars thereof to Mr. Veitch before he completed his Report in September of the same year. The Referee is of the opinion that if there had been proper communication and due consideration given, in all probability proceedings relating to the Town of Forest Appeal would not have been necessary. Drainage Engineers, when appointed pursuant to the Drainage Act, have very special responsibilities. Their role is not adversarial, their role is both administrative and judicial and they have a duty to assemble all the evidence available when exercising their judgment pursuant to the terms of the Drainage Act. In this case, both Drainage Engineers had a duty and responsibility, particularly where there was, as in this case, a duplication in parts of the watershed to ensure that all information was disclosed and exchanged. I find that in the circumstances of this case both Engineers failed in that duty and in their efforts to fully co‑operate. I therefore find it necessary to penalize the Town of Bosanquet and the Town of Forest in costs for that failure.
I am satisfied with the recommendations made by the Parties with respect to engineering costs and agree that a reasonable sum for the engineering costs for the Hearings relating to the Appeal of the Town of Forest, which covered in all 4 days, in the fixed amount of $5,000.00 is reasonable. I further find that legal costs for the 5 days as suggested fixed in the amount of $5,500.00 is reasonable.
I THEREFORE ORDER:
(a) that the matter of costs with respect to both legal and engineering fees with respect to proceedings before the 20th day of December, 1999 be adjourned to a later date to be determined.
(b) that the engineering costs for the Town of Bosanquet with respect to the Drainage Engineer, Mr. Veitch and for the Town of Forest with respect to their Drainage Engineer, Mr. Trudel, be fixed in the sum of $2,000.00 each for preparation and appearance at the Hearings on and subsequent to December 20, 1999: to be added to the cost of the Drain.
(c) that the engineering costs of the Drainage Engineer, Mr. Bartlett, and the Drainage Engineer, Mr. McBride, be fixed in the amount of $5,000.00 and be added to the cost of the Drain.
(d) that the legal costs of Mr. Paul Courey, solicitor for Mr. Evans, et al, and Mr. Robertson, solicitor for the Town of Forest and the costs of Mr. Waters, solicitor for the Town of Bosanquet, with respect to his appearance and attendance at these Hearings, be fixed in the amount of $5,500.00 each and that these costs be added to the cost of the Drain.
DATED: April 17, 2000
Delbert A.O'Brien
Ontario Drainage Referee