ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Bouwman v. St Charles (Municipality)

2000 ONDR 5

DATE OF DECISION:

2000-11-03

2000-05

STATUTE:

Drainage Act

HEARING:

BETWEEN:

WILLIAM BOUWMAN AND MARSHA BOUWMAN

APPELLANTS

-AND-

THE CORPORATION OF THE MUNICIPALITY OF ST.-CHARLES

RESPONDENT

DECISION

The Appeal was heard in the Superior Court of Justice, 155 Elm Street, in the City of Sudbury on the 25th day of October 2000. The Appellants advised the Referee that they were seeking the following remedy:

(a) that the existing municipal drains located on his property be repaired;

(b) that the spoil banks adjacent to the said drains be spread or removed;

(c) that the land adjacent to the drains be restored for agricultural production.

The Appellants had purchased the north half of Lot 8 Concession 1, Township of St.-Charles consisting of approximately 100 acres in December of 1997. In 1983 the Brazeau Drain had been constructed on said property which was owned at the time by Mr. McConnell. There were several subsequent addendums to the above mentioned Brazeau Report which was dated February 10, 1983. The final result was the construction of three open drains on the subject property, namely the K Branch of some 380 meters, the L Branch of some 834 meters and the Q Branch of 165 meters.

The tender for the work was in the sum of $224,869.00, approximately $40,000.00 below the engineering estimate of $265,350.00. After the completion of the work, the assessment assigned to the McConnell property after grants and allowances amounted to $950.00 net with respect to the K & L Drains and a positive payment of $229.00 with respect to the Q Drain.

Mr. McConnell sold the property in 1985 to a Mr. Quip and in 1993 Mr. Quip sold the property to Mr. Doucet. Mr. Doucet in turn sold the property in 1996 to a Mr. Mehler. In 1998 Mr. Bouwman entered into an agreement of purchase and sale for the property with Mr. Mehler.

A second Brazeau Drainage Report with respect to other Branches of the Brazeau Drain was given consideration by the St.-Charles Municipal Council on the 6th day of June in the year 2000. During the consideration of that Report and the subsequent Court of Revision which was held on the first day of August 2000, Mr. Bouwman voiced his concern with respect to the need for repair of the 1983 Brazeau Drain, particularly with respect to the drains located on his property.

The first written correspondence received by the Municipality from Mr. Bouwman was his letter of July 17, 2000 in which he complained of the flooding on his property resulting from the disrepair of the drains and in which he sought damages. Mr. Bouwman sent a second letter addressed to both the Ontario Drainage Tribunal and the Municipality on August 16, 2000 voicing the same complaints and a letter to the Drainage Referee forwarded by the Municipality of St.-Charles on the 28th day of August in the year 2000, reciting the aforesaid complaints.

As a result of the above mentioned complaints, the firm of K. Smart & Associates, (which firm acted as Drainage Superintendent for the Municipality) inspected the property of Mr. Bouwman with a view to resolving the outstanding issues. In October they made several proposals to Mr. Bouwman, but Mr. Bouwman refused to discuss matters with the Drainage Engineer stating that he was only willing to deal with the Municipal Council.

Mr. Smart advised the Drainage Referee that his firm had inspected the property on September 27 and October 24, 2000 and found that there was no evidence of the spoil having been levelled after the construction work was completed in the period 1983 to 1985. He stated there were beaver dams in the channels, in particular two dams causing substantial upstream ponding and that the spoil, particularly along Drain L on the west side, had a bottom width of 20 feet and a height of 4 l/2 feet. He stated that small trees were growing in the spoil pile up to 3” in diameter. He further advised that the contractor had apparently left openings through the spoil at approximately 100 meter intervals but that the spoil banks were holding back the water and causing flooding in the adjacent fields.

Mr. Smart indicated that he had communicated with Jack Young, the Drainage Engineer who had prepared the 1983 Brazeau Report and conducted the work. Mr. Young was unable to recall the exact particulars as to why the spoil had not been levelled. Mr. Young indicated that it was his custom to permit owners to deal with the spoil privately if they so requested. Mr. Smart referred to the terms of the 1983 Reports, noting that the K and L Ditches were to be constructed to a depth of 4 to 5 feet with 3 foot bottoms and side slopes to 1.5 to 1. The specifications required the material to be levelled in a manner satisfactory to the Engineer. The Report made particular provision with respect to excavated material which read as follows:

“A clear berm or margin of at least two meters shall be left between the top edge of the ditch and the spoil bank. No excavated material shall be left in any ditch, depression, furrow or tile intended to conduct water into the drain. Excavated material may be deposited on either side or both sides of the drain as directed by the Engineer and will in general be placed on the lower side of the drain or on the side opposite trees and fences. It shall be deposited, spread and levelled so that the edge next to the ditch shall have a slope no deeper than 1.5 to l and so that the land on which it lies may be cultivated with adjacent farm land by the use of ordinary farm machinery. In general and unless otherwise provided for, the levelled material shall have a maximum depth of 200 mm. This specification may be considered to have been complied with upon presentation of releases signed by the owners, but the work will be to the satisfaction of the Engineer.”

Mr. Smart surmised that in his opinion the spoil banks had not been levelled because of an arrangement with the owner at the time, Mr. McConnell.

The Drainage Engineer, then gave his recommendations as to how the current problem could be properly resolved. He stated that firstly the beaver dams ought to be removed so as to lower the water levels. Next he indicated that a power brusher should be employed to remove trees and pull the roots out of the spoil banks. He indicated that the tree material and roots should be properly windrowed in piles and the spoil levelled. He indicated that, in his opinion, the work could be done for $5,000.00 and broke down the costs as follows:

$500.00 to remove the beaver dams

$2,500.00 for brushing and separation of the tree material

$2,000.00 for levelling

He indicated that the work should be done as “repair work” under the supervision of the Drainage Superintendent and that the costs should be assessed to the current owner because the spoil had been left as a result of a decision of the owner at construction time, namely Mr. O'Connell. Mr. Smart stated that if the work is completed as a “work of repair” under the supervision of the Drainage Superintendent and an application is made for the 2/3rds grant, that the cost, after grant, to the owner should be in the area of $1600.00.

Royal Lafleur appeared as a witness for the Respondent Municipality. He indicated that he had been employed for 29 years by the Municipality and was employed by the Municipality during the construction of the Brazeau Drain. He stated that he recalled that Mr. McConnell had requested that the spoil be left for his personal use and that it not be spread by the Contractor. Mr. McConnell had indicated that he wished to use the spoil to fill in the low spots in a field and the low spots around his buildings. Mr. Lafleur further advised that he recalled that when the property was sold to Mr. Quip that Mr. Quip advised the Municipality that he did not want work done on his property. It appears that several years later Mr. Quip was charged with the growing of an illegal substance on the property.

Mr. Garth Noecker, an employee of K. Smart Associates, and the designated Drainage Superintendent since 1981 for the Municipality, testified on behalf of the Respondent as follows:

• He indicated that the Banks were overgrown with brush, with trees of up to 4 inches in diameter, approximately 15 years in growth. He stated that, in his opinion, if the beaver dams were removed, the brush growth removed and the spoil banks levelled, that the drains would become quite functional. He stated that the lands to the east of L and K Drains was currently in pasture and appeared to be well cared for. The lands to the west of the L Drain were in bush, had been flooded and had not recently been cultivated.

Mr. Bouwman, the Appellant, stated that since he purchased the farm he had tried to keep the beaver dams under control, but that it was a losing battle. He indicated that in his opinion 20 acres were flooded in the middle of his property and approximately 10 acres at the top end of his property.

Mr. Bouwman did not claim damages, but rather sought to have the beaver dams removed and the spoil banks cleaned or levelled and the willows, trees, etc. removed. He also requested that any damage done to the soil be repaired. He stated that the Township had failed in its duty to levy the spoil banks and the work should have been done when the drain was constructed and only 10% of the cost should be applied to maintenance.

Mr. Bouwman called as a witness Ed LaGrandeur. Mr. LaGrandeur advised that he had worked on the McConnell farm before construction of the Brazeau Drain and stated that it was fully cleared land and was in agricultural cultivation. Mr. Richard Lachance was also called by the Appellant and he indicated that he had moved into the area in 1988 and hunted on the property. He stated that he was recently on the property and could not get within 115 meters of the ditch, because of water.

Mr. Bouwman, when questioned by the Drainage Engineer, Mr. Smart, indicated that he had not previously asked the Municipal Council to remove the beaver dams or repair the drain before his request this past summer. He said in the first year of occupation he was too busy fencing, etc. and in the second year he had tried to plough the land and take off hay without success. He confirmed that it was not until the spring and summer of the year 2000 that he approached Council. He agreed that his first written request for repairs was made on the 17th day of July 2000. He confirmed that when Mr. Smart approached him in an effort to resolve the difficulties in early October that he had advised that he would only discuss the matter with Council.

ISSUES

(a) Was the municipality legally required to remove the beaver dams and repair the drain;

(b) Who should pay the cost of repairing the drain, including the spreading of spoil.

The Referee considered the evidence and arrived at the following conclusions:

1. With respect to the first issue of whether or not the Municipality is required to put the drain in repair, there was no dispute. Mr. Smart, speaking on behalf of the Municipality, conceded that it was the responsibility of the Municipality to put the drain in repair, but indicated that there was no legal liability arising from failure to act because owners had never formally requested that the drain be repaired. Section 79 of the Drainage Act reads as follows:

“79 (1) Upon forty-five days notice in writing served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.

(2) Despite subsection (1) the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1 upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works.

(3) The local municipality whose duty it is to maintain and repair a drainage works is not liable in damages for any injury caused by reason of a drainage works being blocked by snow or ice and overflowing the lands of any person without negligence on the part of the municipal corporation.”

This Section must be invoked by an owner before a Municipality is legally liable for non repair. In the present circumstances no written request was made to the Municipality until July 17, 2000 and thereafter the Municipality acted promptly. On behalf of the Municipality, Mr. Smart attended on the property, contacting Mr. Bouwman in an effort to resolve the matter, but Mr. Bouwman rebuffed his overtures, indicating he would only deal with Council. Consequently, there is no liability arising for which Council is responsible as a result of the current disrepair of the drain. However, as Mr. Smart was quite prepared to concede, the Municipality now has an obligation to put the Drain in repair. Mr. Smart has made a recommendation as to how that should be done, namely under the direction of the Drainage Superintendent, pursuant to the regular provisions for repair work and he has indicated that the total cost of such work ought to be in the sum of approximately $5,000.00 to $6,000.

2. With respect to the second issue, namely who should pay for the cost of repairs, that is an issue that depends on a finding of fact by the Referee as to whether or not the owner at the time, namely Mr. McConnell, requested the spoil banks not be spread in accordance with the specifications of the 1983 Brazeau Drainage Report. I rely on the evidence of Mr. Lafleur, who, as an employee of the Municipality was present at the time and had first hand knowledge of the matter. He testified that Mr. Murray McConnell had clearly indicated at that time that he did not want the spoil to be spread. Mr. Lafleur was able to testify that Murray McConnell requested the right to use the spoil material to fill in low spots in the fields and to spread around his buildings. No other evidence was offered during the course of the hearing to contradict the evidence of Mr. Lafleur and there is no reason why the Referee should disbelieve or discount his evidence. Consequently, the responsibility for spreading the spoil remained with the owner and hence with subsequent owners. It appears from the evidence of Mr. Lafleur that the subsequent owner, Mr. Quip, also rebuffed any efforts by the Municipality to spread the material, preferring to have privacy with respect to the growth of his specialty crops. Subsequent owners are thus burdened with this legacy and inherit the responsibility of spreading the spoil.

In the circumstances, Mr. Bouwman is fortunate in having this work done as a work of repair so as to entitle him to the Northern Ontario 2/3rds Grant. The result, according to the estimate of Mr. Smart, is a cost to the Appellant of approximately $1600.00. Not only does Mr. Bouwman inherit the legal responsibility of spreading the spoil as the purchaser of the property, but he had an opportunity of viewing the property and observing the unspread spoil banks and making inquiries with respect to the same. No doubt the existence of the spoil banks, the beaver dams and the flooding were a factor in determining the purchase price. In any event, I have no difficulty in finding that Mr. Bouwman is responsible as owner to pay his share of the work of repair, which after the application of the grants will be assessed to the property in accordance with the original report.

I THEREFORE ORDER THAT the open Municipal Drains, constructed pursuant to the 1983 Brazeau Drain Report on the property of the Appellants, William Bouwman and Marsha Bouwman, be repaired and that the spoil be spread as part of the work of repair under the direction of the Drainage Superintendent as a work of repair and that the normal grants apply with the balance of the cost being assessed in accordance with the original 1983 Report in the normal manner.

I FURTHER ORDER THAT no legal costs are awarded in this matter and that accordingly both parties are responsible for their own costs incurred. Mr. Bouwman has been successful in obtaining an Order of the Ontario Drainage Referee to secure the immediate repair of the drains located on his property, however, in the circumstances he is not deserving of the award of legal costs inasmuch as he rebuffed the efforts made by the Drainage Engineer and the Drainage Superintendent on behalf of the Municipality to have this matter resolved without the need for a Drainage Hearing. Accordingly, no award for costs will be made.

DATED: November 03 2000.

Delbert A. O'Brien

Ontario Drainage Referee