768212 Ontario Limited v. The Corporation of the Village of Glencoe, 2000 ONDR 8

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Ontario Limited v. Glencoe (Village)

2000 ONDR 8

DATE OF DECISION:

2000-10-23

2000-08

STATUTE:

Drainage Act

HEARING:

BETWEEN:

768212 ONTARIO LIMITED

PLAINTIFF

-AND-

THE CORPORATION OF THE VILLAGE OF GLENCOE

DEFENDANT

D E C I S I O N

This matter was heard by the Ontario Drainage Referee in accordance with special arrangements made at the Tax Court of Canada in London, Ontario over a period of four days, namely the 6th, 7th, 19th and 20th days of July, 2000. The Plaintiff was a numbered Ontario Corporation owned by Mr. and Mrs. Ward, both of whom were involved in residential development and resided in the Village of Glencoe. The Defendant was the Municipal Corporation of the Village of Glencoe with a population of approximately 2200 - 2300 residents.

The Plaintiff’s claim, as set out in the Statement of Claim, was as follows:

(a) damages resulting from the negligent design and construction of the drain, together with costs of engineers’ reports and legal costs in the amount of $80,000.00;

(b) prejudgment interest and postjudgment interest in accordance with the Courts of Justice Act;

(c) costs on the solicitor client basis;

(d) such other and further relief as to this Court seems just.

The Drain referred to in the Plaintiff’s claim was the Elgin Avenue Drain resulting from a Report prepared by Spriet & Associates London Limited which Report was dated the 10th day of May 1993. The Village authorized the preparation of the Report after having received a Drainage Petition, pursuant to Section 4 of the Drainage Act signed by a large number of residents living on Elgin Street in the Village as well as one farmer, namely Mr. Crozier, who lived on adjacent property within the Township of Mosa. (The watershed included lands in the Township of Mosa, as well as property within the Village of Glencoe.)

The Drainage Report described the drainage areas as follows:

“The total watershed area as described previously contains approximately 20.8 hectares. The area requiring drainage is described as the south parts of the lots south of Elgin Avenue, the south parts of the lots west of Elgin Avenue and south of Anderson Street, part of Registered Plan 34-R-2127 (proposed subdivision) all in Lot 1 Concession 1 in the Village of Glencoe, and the part of the north part of the south half of Lot 1 Concession 1 in the Township of Mosa.”

The Drainage Report went on to describe the EXISTING DRAINAGE CONDITIONS AND DESIGN CONSIDERATIONS as follows:

We have made an examination of the previously described area affected and found that the area requiring drainage does not have a proper surface and subsurface drainage outlet. The affected owners requested that a proper drainage outlet be provided for their properties.

We also found that the owner of the south-west part of Lot 1 Concession 1, Village of Glencoe (Registered Plan 34-R-2127) is in the process of subdividing his lands for the purpose of residential development. The owner has requested that the proposed outlet for the upstream area be oversized to accommodate the drainage for his future subdivision.

We would like to point out that there have been no indications of any adverse soil conditions, but no formal soil investigation has been made.”

Under the heading RECOMMENDATIONS AND DESIGN CRITERIA the Drainage Engineer stated:

“...that a shallow surface ditch be constructed south of, adjacent and parallel to the south limits of the Village of Glencoe in the area south of Elgin Avenue and that a closed storm sewer be constructed from the outlet of said surface ditch westerly along the south side of the Village limits and northerly and westerly through the proposed subdivision to an outlet into the head of Government Drain No. 1 at the west Village limited.

We further recommend that the upper 300 lineal meters of the Government Drain No. 1 be cleaned out in order to provide a proper subsurface outlet for the proposed storm sewer.”

Under the heading PROPOSED WORK:

“The proposed work consists of approximately 200 lineal meters of shallow open ditch cleanout, approximately 300 lineal meters of main open ditch cleanout including quarry stone rip-rap bank protection and approximately 361 lineal meters of 150mm (6”) to 750mm (30”) concrete field tile and plastic sewer pipe including relating appurtenances.”

The total cost of the work was estimated to be approximately $28,800.00 and the Report provided that the entire Drain be maintained by the Village of Glencoe until such time as changes are made under the Drainage Act. The Schedule of Assessment indicated that the Assessment to be borne by D. Ward (the owner of the Appellant Corporation) was to be $12,950.00. Attached hereto as Schedule “A” is a sketch which formed part of the Drainage Report and which outlines the course of the Drain and illustrates the watershed which is helpful in understanding the location and the detail of the Drain.

Before the Drainage Report was prepared representatives of the Appellant Corporation and the Village Corporation met and the Drainage Engineer was provided with a Preliminary Draft of the proposed Subdivision.

Carl Grabowski of Delcan Engineering, a firm retained by the Plaintiff, in a written memorandum dated the 3rd day of March, 1993 referred to an important meeting as follows:

“On Monday, March 1, 1993, I met with Ray Ramsey and Tony Devos of Spriet Associates who are currently designing a municipal drain across Don Ward’s property. Presently, Elgin Court is experiencing surface ponding during storm conditions. Some of their runoff is directed towards a 100 mm (4”) farm drain which is unable to handle the flows. Therefore, Glencoe has retained Spriet to design a larger storm sewer to solve the problem.

Very little design has been carried out by Spriets to date, and they are yet to determine drainage boundaries, sewer sizes and elevations.

I presented our preliminary design (Plan and Profile) and indicated how shallow the storm outlet is. Spriets are hoping to bring the sewer between Lot 26 and 27 to the proposed street, carry it northerly to an easement between Lots 20 and 21 where it will outlet to a ditch. As shown on our plans, the only length of storm sewer required for this development is from the proposed street to the outlet. This length will be sized accordingly to accommodate drainage from the proposed subdivision without stormwater management.

The cost sharing arrangement is yet to be determined, and the sewer is to be constructed this Summer.

Spriet will keep me up to date as their design progresses so that our design could be co-ordinated with theirs”.

The Drainage Report approval process followed the regular procedure and it appears that no one from the Plaintiff’s firm attended at either the consideration of the Report or at the Court of Revision Proceedings. The installation of the Drain commenced on the 16th day of November, 1993. Mr. Ward acknowledged that he was on site during construction and noted that no Engineer from Spriet & Associates was on site at that time.

In February of 1994, Mr. Ward became concerned with respect to the location of the Drain and commissioned a firm of Surveyors, namely, Archibald, Gray and McKay Ltd. to conduct a survey to ascertain its location. The survey indicated that the installed drain was not located exactly on the lot line between Lots 26 and 27 where the Drain entered the southern portion of the Subdivision. At the downstream end of the installed Drain where it exited from the Subdivision, namely between Lots 20 and 21 the survey indicated that the Drain was once again not installed exactly along the dividing lot line.

A letter dated the 11th day of December 1994, from Jones, Gibbons & Reis, solicitors for the Plaintiff, advised the Township

“If you will review the Spriet & Associates plans for this drain, you will note that it is supposed to be located along the lot lines between Lots 20 and 21 and Lots 26 and 27 on my client’s draft Plan of Subdivision.”

We enclose a survey prepared at my client’s expense which shows the Drain is located substantially inside Lot 20... We therefore suggest that the Assessment for the Elgin Avenue Drain be deferred until my client’s damages are determined as it would be premature to settle this issue at this time”.

In a letter dated the 12th day of August, 1996, A. M. Spriet, P.Eng. replied to the solicitors for the Plaintiff....

“The Drain has been designed to provide outlet for the proposed subdivision without requiring storm water management measures”...” In urban sewer work there is usually a full time inspector directing and supervising the work and recording measurements necessary for “as built” drawings. In open field construction as is the case here, the general location of the drain is known and because municipal drains are by their nature shallow, the most practical method of locating a drain in the future has been to expose it. In this case there is only 3’+ of cover.... “In reviewing our working drawings, I find that it was never our intention to construct the drain on the lot line between Lots 20 and 21. Our rough working drawings show the drain located on Lot 20. I have enclosed a copy of our working drawing for your information. In reviewing the drawing provided with the drainage report, the impression given is that the drain is located on the lot line between Lots 20 and 21, however, the width of the line indicating the drain location blends in with the lot line because of the scale of the drawing. The proposed future lot lines are shown with lightly dashed lines. The proposed future lot line between Lots 20 and 21 does not show up on the drawings.”...”At present the drain is located from one to 2 meters inside Lot 20. While no formal easement is required for a municipal drain, a right-of-way has been established over the drain the width of which is not defined. A 10 foot width is usually adequate in this circumstance to provide access to service the drain.”....”It is unfortunate that there was a misunderstanding about the proposed location of the drain. The lot frontage adjustment is the simplest and most practical solution and according to my discussions with Archibald, Gray and McKay, is without cost. In an effort to assist Mr. Ward with cost he has incurred in locating the drain, we would be prepared to pay Archibald, Gray & McKay’s invoice.”

Mr. Grabowski, P.Eng. acknowledged during cross examination that he preferred that the storm sewer be one or two feet off the lot line so the digging of fence posts, etc. would not affect the drain. He further acknowledged that he did not specifically tell Spriet to follow lot lines.

Mr. Ward advised, in his evidence, that as negotiations with the Municipality continued through his Solicitors he became more and more apprehensive and accordingly retained the services of W. J. Bartlett, P.Eng. Consulting Engineer with the firm of La Fontaine, Cowie, Buratto & Associates Limited. Mr. Bartlett appeared before the Referee and gave evidence on Mr. Ward’s behalf relating to a Report he prepared for Mr. Ward with respect to the Drainage Works dated January 6, 1998. In that Report Mr. Bartlett advised that he examined (a) the adequacy of the design; and (b) the functionality of the works as constructed. Mr. Bartlett advised the Referee that in his professional opinion the design was adequate upstream of the catchbasin located at station 0+316 - for agricultural purposes (draining approximately 16 acres) of agricultural land. However, he further advised that in his opinion the design was inadequate in terms of capacity as designed through the proposed Tanya Court Subdivision. He advised that the only portion of the drain which was designed for a 2 year design storm was the final section of pipe at the downstream end from station 0+445 to station 0+511.

He went on to advise that the Drain as constructed was of reduced capacity because of a reduction in grade between station 0+316 to station 0+379 from .10% to .08% and of a further reduction of grade between station 0+379 and station 0+445 from .10% to .04%. The reduction to .08%, he advised, was not significant, but the reduction to .04% was very significant, reducing the capacity of the drain by almost 40%. He concluded that the resulting “flooding could be extensive and more frequent than should reasonably be expected in an urban area”.

Mr. Bartlett concluded his report by stating that the design should have been challenged prior to the adoption of the Drainage Report, however, having failed to achieve such changes it was now necessary to apply for a new Drainage Report and By-Law with a new assessment schedule. Under cross-examination, Mr. Bartlett agreed that it was too late for a Section 64 Appeal to the Drainage Tribunal unless an extension of time was granted, the Drain having been completed in November, 1993.

Karl Grabowski, P.Eng., (an employee for a period of 12 years with Delcan Engineering) presented evidence on behalf of the Plaintiff. He stated that Mr. Ward used the services of Delcan Engineering for the development of his subdivision. Mr. Grabowski advised that he had met with Spriet & Associates, the Drainage Engineers on the Project, right after the Preliminary Design of the Subdivision in March of 1993. He made a memo to the Don Ward file, previously referred to containing the following paragraph:

“Spriets are hoping to bring this sewer between Lots 26 and 27 to the proposed street, carry it northerly to an easement between lots 20 and 21 where it will outlet to a ditch. As shown on our plans, the only length of storm sewer required for this development is from the proposed street to the outlet. This length will be sized accordingly to accommodate drainage from the proposed subdivision without storm management.”

Mr. Grabowski, in his testimony, stated that the sizing was satisfactory, but the installation, because of the reduced grade, was not.

An exchange of correspondence between the Plaintiff’s Solicitors, Delcan Engineering and Spriet Associates followed, which resulted in a letter from Spriet Associates dated August 12, 1996, previously referred to. In that letter Spriet endeavoured to answer a number of the questions raised in the previous correspondence with respect to capacity. He advised that the drain had been designed to provide outlet for the proposed subdivision without requiring storm water management measures.

Mr. Grabowski advised that in a meeting with the Village in May of 1998 before construction of the subdivision was commenced, the Municipality had been advised that Mr. Ward was willing to re-lay the pipe at the proper grading. The Engineer, however, advised that the Municipality replied “that the pipe should not be touched”.

Various efforts were made to reach a compromise with respect to the reduced capacity and a proposal under the engineering stamp of Gary W. Ingram recommended an additional pipe of 375mm in width and 19m in length extending from the west corner of Lot 31 to connect with the catchbasin at station 0+445. A second proposal dated the 8th day of June 1998 had the additional seal of K. Grabowski affixed. However, Mr. Grabowski’s seal was clearly crossed out. The second proposal providing for a 300mm pipe was eventually installed by Mr. Ward’s contractor.

Mr. Grabowski concluded by stating that he provided engineering advice to Mr. Ward with respect to the design and installation of a new perimeter drain which bracketed the subdivision to the west, commencing at station 0+316 and outletting at catchbasin station 0+491. He stated that the perimeter drain was necessary to compensate for any shortfall in capacity and would ensure that no flooding would occur.

Two witnesses called by the Plaintiff, Mr. Paul Santos and Mr. Kenneth Wilson, both testified that they had observed water flows at the catchbasin in 0+316 and had noted that more water was flowing through the perimeter drain than was flowing into the Elgin Avenue Drain in the direction of catchbasin 0+379.

Mr. Courey called as his first witness, Gary Ingram, P.Eng. Consulting Engineer with MIG Engineering, who was acting for the Municipality of Glencoe during the construction of the Elgin Avenue Drain and the Tanya Street Subdivision. Mr.Ingram advised that the drain outlet within the subdivision was constructed to a two year storm. He indicated that the drain had been functioning well, but agreed that there was an installation problem between stations 0+379 and 0+445 which resulted in limitation of capacity of 13%. He advised that this limitation was calculated by Spriet Associates and that he agreed with their calculation. He stated that this limitation in capacity was corrected by the installation of a 300mm pipe from a catchbasin at the west corner of Lot 31 outletting into the catchbasin at station 0+445. Mr. Ingram testified that it was decided to reduce the 350mm - 19m lateral pipe to 300mm because of installation problems. However he maintained that because the grade was increased by 58% the same capacity was maintained. Mr. Ingram further indicated that although the capacity was reduced by 13% between the catchbasin at station 0+379 and station 0+445, there was an increase in grade at the next downstream section, namely between station 0+445 catchbasin and station 0+511 so that the overall capacity of the drain was maintained.

Mr. Ingram concluded by saying he was not familiar with the details of the perimeter drain which he believed was not necessary, but which did add extra capacity. He indicated that if there was any surcharging at catchbasin station 0+316 that the water would collect in the open drain in the area south of the agricultural land which area would act as a reservoir without any negative consequences. He stated that the apparent bend in the pipe between station 0+445 and the outlet was of no consequence with respect to capacity.

A. M. Spriet, P.Eng. of Spriet Associates, the appointed Drainage Engineer on the Project, presented evidence to the Referee. He advised that the Drain was designed to service both farmland and the Subdivision. The farmland area which found its outlet at Station 0+316 consisted not only of the 40 acres of farmland, but also of an area south of Elgin Avenue involving the back lots of Subdivision. That area, he advised was designed to a standard of 3/4” runoff in 24 hours being the normal farm standard. The next section of drain within the Subdivision from stations 0+316 t 0+445 was designed to handle the flow from 35% of the Subdivision plus the farm area and was designed to a two year storm standard. Capacity from station 0+445 was designed to handle the flows from the entire Subdivision. Mr. Spriet advised that there were no challenges at the time of the consideration of the Report or at the Court of Revision. He further maintained that a site meeting was held with a representative of the Spriet Associates and the Contractor before construction commenced. Mr. Spriet advised that there was no effort to keep the drain immediately on the lot line inasmuch as it often interfered with the fence posts, etc. He also advised that the outlet pipe was within the 10’ easement along Lot 20. He further stated that the oversizing provided for the Subdivision “so that storm water management could be avoided” was provided from Station 0+445 to the outlet. He asserted that the de-efficiency in grade between stations 0+316 and 0+445 was more than made up for by the increased grade beyond station 0+445. However, he further advised that notwithstanding that fact, that remedial work was undertaken to carry water from the catchbasin at the west corner of Lot 31 in a 12” pipe to station 0+445 and that all costs for that modification were borne by Spriet Associates and the Contractor.

Reeve D.R. McDonald gave evidence on behalf of the Village of Glencoe. He advised that the Drain was working well even after a rainfall of almost 4” and that the Village had received no complaints. Mr. McDonald advised that most of the detail in the negotiations with respect to the Drain were handled by MIG Engineering and Delcan Engineering, together with Spriet Associates. He advised that he did not have knowledge of the perimeter drain, but recognized it was a private drain and stated that he did not know who would maintain it in the absence of any agreements. The Reeve advised that it was the custom in the Municipality for the Village to assume responsibility for the maintenance of a drain in the circumstances where it served a developed Subdivision. Thus, in this case, responsibility for maintenance was only to be assumed by the Municipality if the Subdivision became fully developed.

The Reeve advised that the Council had carefully considered the problems arising from the construction and were satisfied, based on the opinion of experts, that there was no need to relay the pipe or indeed to repair it. He stated that the tender cost of relaying the pipe was $11,885.00 and that it was his understanding that the Village was expected to pay that cost entirely out of its general revenues without even the option of assessing it back as a work of repair. The Village consultants once again advised that repair was not necessary. He pointed out that under the existing Report any repairs would have to be paid by the Village of Glencoe.

ISSUES TO BE DETERMINED

1. Has the Plaintiff filed its appeal within the allowable time frame pursuant to Section 111 subsection 2 of the Drainage Act. Or in the event that the Plaintiff failed to fall within the time requirements, is an extension of the time for appeal, pursuant to Section 113 of the Drainage Act proper.

2. Was the Defendant negligent and therefore responsible in damages for one or more of the following reasons:

(a) faulty design of the drain;

(b) improper installation of the drain;

3. • Additional lateral remedial drain connection approval

• Concerns about a water pipe installed between station 0+455 and the outlet

4. The problem of the private perimeter drain constructed without the authorization of the Drainage Act; and

5. Damages.

6. Dealing first with the issue of the limitation period, the Act provides as follows:

“Section 111 (2) - A copy of the notice with an affidavit of service thereof shall be filed with the local registrar of the Ontario Court (General Division) for the area in which the initiating municipality is situate, and the notice shall be filed and served within two years from the time the cause of complaint arose.”

The Plaintiff issued his claim for damages on the 11th day of June 1999. This matter involves the construction of the new Drain and therefore according to decided Cases the claim does not arise until the aggrieved party becomes aware of the act of negligence by which he or she is affected. In this case a major issue was the issue of improper installation and the details of the installation, particularly with respect to the capacity of the Drain, did not become evident to the Plaintiff until such time as he obtained the Bartlett Report. The Bartlett Report was available to the Plaintiff in January of 1998 and it is at that time that the Plaintiff became aware or should have become aware of the failure to install the Drain in accordance with the grades as set out in the Drainage Report. Consequently, in accordance with the “discoverability rule” which has been relied on in previous Drainage Decisions, the two year period would run from January of 1998. Accordingly, the Claim, having been issued on the 11th day of June, 1999, falls within the two year period and is not barred. It might be argued that the issues with respect to the location of the Drain ought to have been filed from an earlier period, namely from the time of the survey of Archibald Gray and McKay Ltd in early 1994. I am inclined, however, in the circumstances to exercise the discretion granted to me in Section 113 of the Act in favour of the Appellant on the basis of practical considerations, including the fact that the survey was not based upon an exposed drain.

2. With respect to the adequacy of the design, I am satisfied on all the evidence that the design was adequate. This Drain was designed and installed some five years before the Tanya Subdivision was developed. The Village authorities would have been justified in being uncertain as to the future development of the Subdivision.

Accordingly, the Village acted reasonably in having it installed largely to rural standards with some accommodation for the potential Subdivision. In rural drainage, a primary consideration is cost benefit. Because agricultural drainage is one of the major costs in farming every consideration is made to reduce costs consistent with potential agricultural returns. The design upstream of catchbasin Station 0+316 was to a standard farm land design, namely 3/4” of rainfall in 24 hours. That design was particularly justified because of the potential water management features of the open ditch upstream of the catchbasin at station 0+316. The profile characteristics of that open ditch exhibited significant potential for storage. Downstream at catchbasin 0+445 which Station is located at the road central to the Subdivision, the capacity was increased remarkably from the 15” to a 30” tile. Such an increase at that point was in keeping with intention to provide sufficient outlet to the Subdivision so as to avoid storm water management. Such a design is consistent with the words in the memo of Karl Grabowski, P.Eng. dated the 3rd day of March, 1993 which reads as follows:

“Spriets are hoping to bring the sewer between Lots 26 and 27 to the proposed street carried northerly to an easement between Lots 20 and 21 where it will outlet to a ditch. As shown on our plans the only length of storm sewer required for this development is from the proposed street to the outlet. This length will be sized accordingly to accommodate drainage from the proposed subdivision without storm water management.”

The design is also consistent with the words as set forth in the Drainage Report dated May 10 1993 where it is stated:

“The owner has requested that the proposed outlet for the upstream area be oversized to accommodate the drainage for a future subdivision”.

The above mentioned interpretation of the document is supported by the testimony of Mr. Spriet and Mr. Ingram and indirectly by Mr. Grabowski who said he approved the design as outlined in the Drainage Report. Such a consideration is further supported by the simple fact that the Report was never challenged or appealed after having been fully circulated, etc. I therefore find that the design of the Drain was in all the circumstances adequate for the purpose intended and accordingly find that there was no negligence on the part of the Drainage Engineer who designed the same, which negligence cannot therefore be attributed to the Municipality.

With respect to the issue of improper installation, the circumstances are more complex. The details are reasonably clear and largely undisputed. The first objection relates to the location of the drain and such objections arose out of a survey conducted independently by Mr. Ward, using the services of Archibald, Gray & McKay Ltd. That survey indicated that the installation did not follow along the lots lines between Lots 26 and 27 of the proposed Subdivision and that there was a considerable curve in the Drain as installed between station 0+445 and the outlet which deviation was calculated to be 11% off the straight line. Subsequently, when the installation of the services for the Subdivision commenced, it was ascertained that the Drain between Station 0+379 and 0+445 curved significantly toward the southwest, causing some difficulty with respect to the installation of services. Mr. Spriet testified that although the diagram attached to the Drainage Report illustrated the Drain as running along the lot line between Lots 26 and 27, the text of the Report did not confirm such an undertaking and indeed the scale of the diagram was such that a meter or two off the boundary line could not be detected. He said it was good practice not to construct a drain directly on the boundary line because the subsequent construction of fences could well interfere with the Drain. Accordingly he advised it was never his intention to construct the Drain directly on the lot line between Lots 26 and 27. Mr. Grabowski, in his testimony, agreed that it was not his practice to recommend that a drain be located directly on the lot line.

With respect to the curvature in the installation between Station 0+445 and the outlet of the Drain, it appears that the installation was still within the 10’ easement as suggested in the Report. Such a deviation, although cosmetically not particularly appealing, in no way interfered with the capacity of the Drain. As a consequence I cannot find either deviation to constitute a material defect such as to attribute negligence to the Drainage Engineer or the Contractor.

With respect to the curvature in the Drain between Station 0+379 and 0+445, the evidence was not as precise. It appears that this deviation required the re-location of a catchbasin, involving some extra cost to the Developer but I am not satisfied in all the circumstances that these costs could have been foreseen at the time when the Drain was constructed in an open field. It is not unreasonable to assume that there was a duty on the Plaintiff to have a knowledgeable adviser on the scene at the time of the installation to ensure that the installation was consistent with future plans for the Subdivision. I therefore cannot attribute negligence to either the Drainage Engineer or the Contractor for this minor deviation considering the installation occurred in an open farm field.

With respect to the issue of whether or not the Drain was installed in accordance with the grades as set out in the Drainage Report, the evidence is clear that it was not. The Report of William Bartlett clearly discloses that the reduced grade between stations 0+316 and 0+379 resulted in a capacity reduction of .08%. The reduction in the grade between station 0+379 and 0+445 resulted in a reduced capacity of 13% as calculated by Spriet and of nearly 40% as calculated by Bartlett. The increased grade between the catchbasin at station 0+455 and the outlet resulted in an increased capacity of approximately 25%. Mr. Spriet testified that the increased capacity beyond 0+455 compensated for any lost capacity upstream and therefore resulted in no overall loss of capacity. An effort was made by the Engineers to further compensate for any lack of capacity by constructing a 375mm pipe - 19m in length from the catchbasin adjacent to the westerly point of Lot 31 outletting in catchbasin at station 0+445. It was argued that this would provide a by-pass for surface flows that would normally make use of the 15” drain between station 0+316 and station 0+445. Mr. Ingram approved this compromise and it appears that at first it might have been acceptable to Mr. Grabowski, but he eventually determined that it was unsuitable. In any event, the compromise proposal was installed by Mr. Ward’s Contractor.

After consideration of all of the above mentioned factors, I am of the opinion that although clearly the Drain was not installed in accordance with the Drainage Report, that the final result did not decrease the capacity of the Drain in serving the watershed. I find that the Parties made an effort to effect a compromise with the lateral Drain which more than compensated for any loss in the main Drain.

In considering all of the evidence I am satisfied that at the Engineering level the Parties were dealing in good faith in an effort to provide satisfactory solutions. The fact that the cost of the lateral additional drain was paid for by Spriet and the Drainage Contractor and that it was installed by Mr. Ward’s contractor further attests to the efforts made by all Parties to reach an accommodation. I therefore cannot find negligence on the part of any of the Defendants sufficient to justify an award of damages with respect to installation.

3. It appears that the remedial lateral drain was an addition to the work that was not provided for in the original Drainage Report nor was it accommodated by any subsequent amendment. I THEREFORE ORDER as part of this work that the Drainage Report be amended to include the lateral 12” drain 19 meters long from the catchbasin at the westerly corner of Lot 31 extending to the outlet in the catchbasin at station 0+445 and that henceforth it be considered part of the Elgin Avenue Drain.

In addition there was some issue raised with respect to the installation of a water pipe during the course of the installation of the outlet pipe between Station 0+445 and the outlet. Water pipes are normally not part of drainage, but when they are installed in the course of a drainage project, under the legal auspices of the Drainage Act, jurisdiction arises. Inasmuch as this pipe might, and the evidence is very limited, constitute a threat to the Drainage System, I ORDER THAT it not be used until such time as the Municipality receives an opinion from a Drainage Engineer certifying that it does not constitute a danger to the drain or to adjacent owners in the drain if utilized in the normal way without further modification.

4. PERIMETER DRAIN

Reeve McDonald, in his testimony, advised that he was uncertain with respect to the future of the Perimeter Drain. He recognized that it was a private drain, illegally attached to the Elgin Street Drain and that he had no clear idea as to how it would be maintained in the future. The evidence was sufficiently detailed to satisfy the Referee that the Perimeter Drain was properly engineered by Mr. Grabowski and that it provides a by-pass to that portion of the Elgin Avenue Drain where all the concerns with respect to capacity and location were focused. Evidence given by several of the witnesses on behalf of the Plaintiff indicated that in the eyes of a layman and using the practical test of a layman that the flow through the Perimeter Drain was greater than that through the Elgin Avenue Drain. Accordingly, it appears that the Perimeter Drain acts as a relief drain for the Elgin Avenue Drain and provides significant increased capacity. The existence of the Perimeter Drain may well have contributed significantly to the success of the Elgin Avenue Drain in accommodating the recent heavy rainfalls referred to by the Reeve. The simple fact is that the Perimeter Drain, as constructed, is physically an integral part of the Elgin Avenue Drain and will cause significant problems in the future if the matter is not legally addressed. I am therefore of the opinion that the Perimeter Drain should form part of the Elgin Avenue Drain and so ORDER. In the future it will be maintained by the Municipality as part of that Drainage System. IT IS FURTHER ORDERED THAT the standard easement for maintenance purposes be attached to that Drain.

I FURTHER ORDER THAT Notice of this Order with respect to the Perimeter Drain be sent to each owner affected by the Perimeter Drain extending to them an opportunity to appeal within a period of 30 days of the date of the notice to the Ontario Drainage Referee, the terms of this Order dealing with the Peripheral Drain. This Notice is to be sent out by the Municipality of Glencoe.

IT IS FURTHER ORDERED THAT the Plaintiff be granted an allowance with respect to the Perimeter Drain in the sum of $18,478.00 plus G.S.T. The additional cost of that allowance is to be assessed to all the owners assessed on the Elgin Avenue Drain on a pro rata basis.

DAMAGES

Inasmuch as this Court has determined that no negligence can be attributed to the conduct of the Drainage Engineer, the Contractor or the Municipality, all claims with respect to damages fail. The claim for damages is therefore dismissed.

I find that all Parties in this matter acted responsibly and with reasonable regard for their responsibilities and duties. As is often the case in drainage matters when there is a transition from rural drains to urban drains there is often a conflict arising from the different standards traditionally applied. In this case, there was not only a mixture of rural and urban requirements, but there was a time lapse of some five years between the construction of the largely rural Drain and the construction of the urban Subdivision. The time lapse further complicated matters for all Parties involved.

With respect to the issue of legal costs, because of the unique nature of this Order, I am going to set aside a day convenient to Legal Counsel when I will attend in London to hear submissions with respect to costs.

DATED: October 23, 2000

Delbert A. O’Brien, Q.C.

Ontario Drainage Referee