Dabis v. Ramara (Township), 2001 ONDR 1

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Dabis v. Ramara (Township)

2001 ONDR 1

DATE OF DECISION:

2001-12-05

2001-01

STATUTE:

Drainage Act

HEARING:

BETWEEN:

DIETHER CARLOS DABIS AND CHRISTINE KAISER-REID PLAINTIFF

-AND-

THE CORPORATION OF THE TOWNSHIP OF RAMARA, MCCARTHY LAND IMPROVEMENT, LAFARGE CANADA INC., IKE MEYERS AND JOSEPH HARRIGAN DEFENDANTS

A N D: Court File No. 99-CV-166628CM SUPERIOR COURT OF JUSTICE

BETWEEN:

DIETHER CARLOS DABIS and CHRISTINE KAISER-REID Plaintiffs

-and-

THE CORPORATION OF THE TOWNSHIP OF RAMARA Defendant

A N D:

Court File No. 99-CV-166628CM A SUPERIOR COURT OF JUSTICE (Proceedings commenced at Toronto)

BETWEEN:

DIETHER CARLOS DABIS and CHRISTINE KAISER-REID Plaintiffs

-and-

THE CORPORATION OF THE TOWNSHIP OF RAMARA Defendant

-and-

MCCARTHY LAND IMPROVEMENT, LAFARGE CANADA INC., IKE MEYERS, JOSEPH HARRIGAN and ROBWILDON LIMITED Third Parties

D E C I S I O N

This matter commenced by the issuance of a Statement of Claim in the Ontario Court of Justice (General Division) on the 12th day of January 1999 by the Plaintiff, Robwildon Limited, naming the Corporation of the Township of Ramara, McCarthy Land Improvement, Lafarge Canada Inc., Ike Meyers and Joseph Harrigan as Defendants. The claim made against all Defendants jointly and severally was as follows:

1Damages for negligence, nuisance, intentional or negligent misrepresentation and unlawful conversion in the amount of $250,000.00.

2A mandatory injunction requiring the Defendants to restore the Plaintiff’s property to the condition in which it existed prior to the drainage works undertaken by or on behalf of the Defendants as described herein.

3Exemplary and punitive damages in the amount of $250,000.00;

4Pre-judgment and post judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, Chap. 43 as amended;

Each of the Defendants in the Statement of Defence in a Cross Claim claimed contributions and indemnity from the other Co-Defendants.

A second Statement of Claim was issued in the Ontario Court (General Division) on the 29th day of March, 1999 by Diether Carlos Dabis and Christine Kaiser-Reid as Plaintiffs naming the Corporation of the Township of Ramara as Defendant. The Plaintiffs’ claim against the Defendant was as follows:

“(a) damages for negligence, nuisance and interference with the riparian rights of the Plaintiffs in the sum of $1,000,000.00;

(2) in addition and/or in the alternative an award of damages, a mandatory order requiring the Defendant to carry out at his own expense the necessary repairs or work as found by this Honourable Court;

(3) as to the Plaintiffs, Kaiser-Reid only, damages for lost profit in the sum of $200,000.00);

(4) exemplary and punitive damages in the sum of $100,000.00;

5pre-judgment and post judgment interest on the above sums pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, Chap. 43 as amended; “ etc.

The Defendant filed a Statement of Defence on the 21st day of April, 1999 and issued a Third Party Claim naming the McCarthy Land Improvement, Lafarge Canada Inc., Ike Meyers, Joseph Harrigan and Robwildon Limited as Third Parties. The Third Party Claim was for contribution and indemnity with respect to any judgments against the Defendant, etc.

The Parties to the above mentioned actions on consent pursuant to Section 120 Subsection 1 of the Drainage Act agreed to have the matter transferred to the Court of the Ontario Drainage Referee so that in the words of one of the Counsel “it might be more conveniently tried before and disposed of by the Referee, particularly in light of the acknowledgement of the need for remedial action”

Accordingly on the 22nd day of February 2000, a Hearing was held by arrangement of the Parties in a conference room at the Court House at 393 University Avenue, Toronto, Ontario. Each of the Parties was represented by their Counsel of Record at that meeting and after hearing submissions from the various Parties, there was general agreement of the need for immediate action of a preventative nature to forestall serious further damages. The damages anticipated would be to the properties of both Plaintiffs, from erosion and further siltation, as well as potentially serious consequences to the environment, fish habitat, etc., from the runoff of the immediately pending spring freshette.

Accordingly, on the application of the Township of Ramara and with the general agreement of the Parties, an Order was made by the Ontario Drainage Referee in the following terms:

Court File No. 99-CV-161877 99-CV-166628CM 99-CV-1666628CM A

IN THE COURT OF THE DRAINAGE REFEREE

DELBERT A. O'BRIEN ) Wednesday, the 26th day of DRAINAGE REFEREE ) April A.D. 2000

Court File No. 99-CV-161877

SUPERIOR COURT OF JUSTICE (Style of Cause)

ORDER

THIS MOTION made by the Defendant, The Corporation of the Township of Ramara in the Court of the Drainage Referee for an order that an engineer be appointed by the Township for the purpose of examining the area requiring drainage and reporting to the Referee the findings pursuant to Section 8 (1) of the Drainage Act; and an Order that the timing for the completion of Examinations for Discovery and for production will be dealt with once the engineer’s report has been filed with the Referee, was heard on Tuesday, February 22nd, 2000 at 393 University Avenue, Toronto.

ON READING the Motion Record of the Defendant, The Corporation of the Township of Ramara and the Record of Proceedings and on hearing the submissions of counsel for all parties.

1. IT IS ORDERED that an Engineer be appointed by the Township of Ramara for the purpose of examining the area requiring drainage and for the purpose of preparing a Drainage Report.

2. IT IS FURTHER ORDERED that the Engineer prepare an interim report with a view to taking remedial action before the spring freshet.

3. IT IS FURTHER ORDERED that the interim report be circulated to all parties to this matter and to all owners in the watershed with a notice being attached advising the parties and owners in the watershed that they may appeal the terms of this order, including the proposals in the interim report, to the Drainage Referee within 10 days of receipt of the interim report.

4. IT IS FURTHER ORDERED that the interim engineering report be available by March 10th, 2000.

5. IT IS FURTHER ORDERED that the costs of this motion are reserved to the Drainage Referee.

Signed D. A. O’Brien "

The Drainage Referee agreed to make this Order for the following reasons:

(1) There was an emergency situation brought on by the anticipated further damages expected to accrue during the spring freshette because of the particularly heavy snow fall. These damages would consist of a further serious siltation of the Plaintiff, Kaiser-Reid’s marina and dockage area along the shores of Lake Simcoe and further serious erosion of the lands of the Plaintiff, Robwildon. This unique threat was as a result of the newly excavated and unprotected ditches upstream of the Plaintiffs’ lands. There was also a threat of serious environmental damage to Lake Simcoe and fish habitat. The prospect of heavy fines being imposed by the Federal Department of Fisheries and Oceans pursuant to Section 35 of the Fisheries Act encouraged co-operation.

(2) The Order responded to the request of the Plaintiffs in both actions for immediate injunctive relief in the form of preventative and remedial action and to the request of the Township of Ramara’s that a Drainage Engineer be appointed as quickly as possible to prepare a Report under the Drainage Act with respect to the old Award Drain Watershed (it is noted that the Township alone had the authority under the Drainage Act to execute a Petition singularly and commence the process).

(3) It was apparent that any emergency remedial measures required the expertise of a Drainage Engineer and because the process would involve works such as siltation traps, dredging, etc. which would undoubtedly form part of any future municipal drainage works. It appeared to be cost beneficial to have the work performed as one undertaking. It was also apparent that some of the private drainage excavation work could be cost effectively incorporated into the future drainage works.

(4) The Municipality of Ramara was a Defendant in the legal actions and because the Municipality was rejecting liability, several Parties raised concerns about the appropriateness of the Municipality continuing to have conduct of the process etc. because of possible conflict of interest considerations.

(5) The need to have an Interim Report completed and the work done before the ravages of the spring runoff required that the normal time lines provided in the Drainage Act for processing of the Report be abridged.

6Finally, the claim for damages required that consideration be given to the cost of the interim and the remedial work. The matter of the allowances to be granted for the private work done and incorporated into the drainage scheme were closely related The Referee was of the opinion that administrative and hearing costs would be saved and the remedies expedited if all matters were dealt with in the Court of the Referee.

Accordingly, the Referee, on the basis of his original jurisdiction as provided in Section 106 of the Drainage Act, in Subsection (c) “to determine claims and disputes arising under this Act....or purporting to have been done under this Act or a predecessor of this Act and consequent therein” and Subsection (d) “to entertain applications for Orders directing to be done anything required to be done under this Act” assumed procedural control of the project.

The Referee, however, to ensure due process provided that all affected were to be notified and given an opportunity to file an appeal, not only with respect to the Interim Report, but also with respect to the terms of the Order itself within l0 days of notification having been received.

The Municipality of Ramara in response to the Order and the emergency situation immediately appointed K. A. Smart, P.Eng. to prepare a Preliminary Report to provide immediate measures to prevent further siltation in the downstream marina, further serious erosions of the newly constructed ditches and devices to protect fish habitat, etc. An Interim Report was prepared dated March 7 2000. The Interim Report was then forwarded to all Parties affected and at the request of several of the Parties it was reviewed before the Drainage Referee on April 14, 2000. At that Hearing, strong representations were made urging that a Hydrology Study be undertaken to confirm the recommendations of the Engineer. By this time, some of the urgency had abated inasmuch as there had been a measured snow melt without significant flooding. Accordingly, an Order was made by the Drainage Referee dated April 26 2000 requiring that a Hydrology Study be undertaken and recommending that the proposed interim work proceed unless the Hydrology Study recommended against the work. The Order implementing the Interim Report required that the following work be done:

(1) removal of the undersized culvert on the Robwildon property and its replacement as provided in the Report;

(2) the excavation of one new unlined storage facility on the Harrigan property as a temporary siltation trap;

(3) the provision of rip rap on the Harrigan / Meyers Line at points susceptible to erosion as provided in the Report;

(4) the exploration of the Lafarge quarry water to determine if it could be redirected out of the watershed as provided for in the Report;

(5) the removal of sediments from the Dabis sediment ponds and from the marina dock area after the immediate video taping of the full channel.

The Order also required the Drainage Engineer to consult fully with Environmental Authorities and provided for a further Hearing after the Hydrology Study was completed in the event that the Study recommended against any of the interim measures.

The Hydrology Study was completed by Davis Harsch, P.Eng., of K. Smart Associates. The Study was completed using a OTTHYMO Model 1.0.6 Software Package.

The watershed was divided into a number of sub areas. Perimeters were applied to each area and then flows were calculated at various locations within the watershed for storms with return frequencies of 5,10 and 100 years and for a low flow rainfall event of 25mm. The Study was completed in July of 2000 and immediately circulated to the Parties for review. The Hydrology Study recognized that the siltation and sedimentation facility would not be a permanent structure, that it should be designed as an interim measure.

The Municipality of the Township of Ramara was notified that certain of the Parties wished to have the Study reviewed by the Drainage Referee and accordingly on July 24 2000 a further Hearing was conducted.

At the conclusion of the Hearing the Drainage Referee determined that the Hydrology Study did not recommend against the measures of the Interim Drainage Report and accordingly that the work could proceed. As requested by the Referee the Drainage Engineer had consulted with the Federal Department of Fisheries and Oceans. Consultations were also undertaken with Brad Allen of the Ministry of Natural Resources. The interim work was approved by the agencies which advised when the work should be done.

Two contracts were entered into with respect to the Interim Emergency Measures, the first dealt with construction on the Robwildon property of a new culvert and a temporary sediment dam downstream of it, the construction of sediment pond facilities on the Harrigan property and a temporary dam downstream of it. Also it provided for the rip-rapping of the tile outlets and service water entry points on the North Branch along the Meyers/Harrigan Line. The second contract dealt with the excavations of sediments in the Dabis property sediment ponds.

The Ministry of Natural Resources indicated that the marina clean out could be conducted at any time between July 2, 2000 and March 31, 2001. The clean out work was completed during the month of March in the year 2001.

The Drainage Engineer, Ken Smart, proceeded with his investigation of the water shed with respect to providing a full report during the period in which the interim emergency work was being completed. As had been agreed during the initial meeting of the Parties in this matter, the objective of providing good drainage for the full watershed, the remedial work involving the incorporation and/or restoration of part or all of the newly constructed work should proceed before any consideration of damages be made. Mr. Smart’s investigation of the watershed revealed the following:

The McNabb Drain was constructed as an Award Drain pursuant to an Award of Charles E. Fitton on October 7 1903. A review of the profile indicates that the Drain commenced 281 metres downstream of the present Ramara Road 47 on the present Dabis property and continued upstream along the present drainage route to the former Grand Trunk Railway, continued south along the east side of the railway to the Second Concession Road. It then continued on the north side of the Second Concession Road to its intersection with Highway No. 12. The present drain follows exactly along this same route and has not changed since the original Award. The Award Drain then continued across Highway 12 through a culvert still at the present location and continued upstream approximately in the centre of the present Standard Industry’s and Canada Lafarge properties to terminate approximately 235 metres east of Highway 12 on the north side of the Third Concession Road.

CURRENT STATUS OF THE DRAIN:

An examination of the current condition of the Drain was made by Mr. Smart in the spring of the year 2000. It revealed that the watercourse downstream of the Lakeshore Drive had been altered and improved; concrete walls having been constructed on each side of the channel terminating in the concrete boat docking area of the marina. East of the Lakeshore Road the channel had been improved by the installation of rip rap along the north side of the trailer park. Upstream on the Dabis property the Engineer noted that the channel was in a natural condition, except for two ponds in which there was a substantial concentration of sediments. The watercourse continued upstream, crossed through the Ramara Road 47 and the Snodden property, the east part of which was in a field setting. There was evidence that cattle had access to the Drain on the Snodden property. At the upstream end of the Snodden property the Drain passed through an old railway embankment (Grand Trunk Railway) through a 1200 mm pipe. The embankment was very stable and well vegetated. The Award Drain then turned directly south at right angles to run along the east side of the Railway Embankment to where it made a further 90 degree angle turn to the east to run along the north side of the Second Concession Road. This portion of the old Award Drain had standing water, brush and cattails in it. The Award Drain continued along the north side of Concession Road 2 until it passed through Highway 12 where it originally changed course to continue northerly. However, in this portion of the old Award Drain there had been a substantial alteration. It was now apparent that the majority of the flow was intended to come down the west side of Highway 12 or to run across the Harrigan property in a westerly direction. The Drainage Engineer observed that the altered Award Drain flow crossed Highway 12 through a culvert some distance north of the Concession 2 Road. It could be presumed that the altered flow route intended the flow to proceed south in the west ditch of Highway 12. Currently, because of the condition of the ditch, it was flowing west over the Harrigan field. An attempt to investigate the location of the Award Drain on the Standard Industry’s property proved to be very difficult due to substantial ponding of water and cattails.

It became evident that the original route of the Award Drain had been further changed between the Highway 12 and Concession 3. It appears the Drain was also intercepted by the newly constructed CNR Railway. The Award Drain crossed the Railway and then proceeded north using the east railway ditch for a length of 400 metres. From that point the Drain continued north to meet the culvert across the Concession 3 Road. When the original Railway, which was abandoned, became used as a laneway for Lafarge, the Award Drain was further altered to follow an alignment between the two embankments and then across the Lafarge lane and then north to Concession 3.

In the north east upper portion of the watershed, there is situated the Ramara Township Industrial Park. It is north of the Third Concession Road and east of Highway 12.

The north west corner of the watershed featured a small commercial development known as Box Car Willy’s Restaurant. The Engineer noted that the property had very poor drainage and there was substantial evidence of standing water.

The entire watershed was characterized by multiple land use which circumstance complicated efforts to reach a consensus with respect to the need for the drainage development. At the downstream end was located a commercial marina along the shore of Lake Simcoe. Immediately upstream were a series of farms, most of whose owners were interested in improved drainage. To the east and north were located large industrial operations focussing on aggregate production and quarrying. The natural drainage characteristics of the watershed were further complicated by the fact that the central portion of the watershed was bisected by two large developments, namely the CNR Right-of-Way and Highway 12. In addition, absentee land ownership influenced attitudes with respect to cost benefit considerations.

THE WATERSHED:

The features of the Drain are set forth on the watershed plan prepared by the Drainage Engineer, Ken Smart, which is attached to this Decision as Schedule “A” from the Report made as Drawing 1.

CONSTRUCTION WORK DONE IN 1997

As has been previously described, this matter commenced as a result of a claim by Robwildon Limited alleging that a private ditch was unlawfully constructed across their property in 1997. The work was done by McCarthy Land Improvement, the cost being shared by the Corporation of the Township of Ramara, Lafarge Canada Inc., Ike Meyers and Joseph Harrigan. The outlet for the ditch was the Award Drain at a point where the Award Drain flows through the old Grand Trunk Railway bed at the upstream end of the Snodden property. The newly excavated ditch extended across the Robwildon property to its easterly boundary and then proceeded across the property owned by 857238 Ontario Limited to the boundary of the J. Harrigan property. The Engineer described the channel as having bare slopes, a three metre bottom, an eight metre top and a 1.8 metre depth. There was some erosion in the area of the lane crossing and the banks were marked by stock piles of excavated material along its length.

The channel on the property of 857238 Ontario Limited was measured to have a 1.5 metre bottom, a 6 metre top and 1.5 metre depth. On the Harrigan property a similar channel was noted, somewhat smaller having a bottom width of 1.5 metres, top width of 5.5 metres and a depth of 1.3 metres. It proceeded east across the Harrigan property to a point approximately 200 metres from Highway 12 where the channel section terminated and plastic tile drains continued to the Highway. .

Also of recent construction was a second channel on the Harrigan property going directly north along the West limit of the property to a point on the southern boundary of the Meyer property. The excavated channel then made a 90 degree turn east proceeding along the Harrigan/Meyer boundary. The channel continued half way across the Meyer property to a point where it made a second 90 degree turn to the north, continuing across the Meyer property to the Third Concession Road. It then proceeded east along the Third Concession Road. The Drainage Engineer noticed considerable erosion at points along the course of this newly excavated channel. It is apparent that Lafarge Canada Inc., Meyers and Harrigan were of the opinion that the old Award Drain was no longer a suitable outlet for their drainage needs and hence they decided to construct a new private drain with an outlet in the old Award Drain

DEVELOPMENT OF DRAINAGE REPORT:

The Drainage Engineer, Mr. Ken Smart, held a series of meetings with the owners, the first being in early May in the year 2000 and the second major meeting of all landowners being on the 31st of October, 2000. The Engineer had presented four options to be considered by the owners and the various options were discussed in detail. A further informal meeting was held on the 22nd of February 2001 and every effort was made by the Drainage Engineer to accommodate the interests of the various Parties.

Considerable time, effort and money was expended in the investigation and study of the hydrology in this project. An effort was made to satisfy the concerns of two downstream owners, namely Kaiser-Reid and Dabis, that they not encounter increased flows as a result of this project. One of the most significant features of this drainage project was the fact that the 1200 mm railway culvert in the old Grand Trunk Railway bed immediately upstream of the downstream owners was not to be increased in size so that flows through it would remain consistent with the flows in the old Award Drain of 1903. The Engineer in his Report stated that “one of the main goals in hydrology on this project was to implement storm water management in the upper reaches of the watershed so that the flow to the 1200 mm railway culvert remained equal to (or close to) the 1903 or pre-1997 quantities with upstream drainage in good repair.”

The OTTHYMO Modelling indicated that the flows during a 2 year storm at the Ramara Road 47 culvert immediately upstream of the Dabis property would have been 2.23 cubic metres per second pre-1997 in a properly maintained drain. After this project with storm water management 2.05 cms. Although it is not normal to design a project of this nature for a 100 year storm, the model disclosed that at the Ramara Road 47 culvert in the event of a l00 year storm in 1903 the McNabb flow would have been 6.91 CMS just before 1997 (maintained), after this project with storm water management the flow would have been 7.58 CMS.

The soils were analysed and it was determined that they consisted generally of clayey silt with some sand and that side slopes of 2:1 with vegetation would be recommended. It was further recommended that all slopes would be seeded, some by hydra-seeding.

With respect to environmental concerns on which there was much focus because of the earlier catastrophic erosion and sedimentation, the Engineer made a number of recommendations. First he proposed that the temporary sediment pond on the Harrigan property remain until the end of the warranty period. A further three temporary sediment traps using straw bales, etc. were to be used during construction. The storm water management facility recommended on the Standard Industry’s property was a major feature to limit erosion during high flows. Construction of fencing on the Snodden property and of a water facility for cattle were also recommended. Finally, it was recommended that the discharge from the quarries continue to be directed east as per the existing situation.

RECOMMENDATIONS FOR CONSTRUCTION MADE BY DRAINAGE ENGINEER

On the Kaiser-Reid property from the outlet at the Marina Basin to the Lakeshore Drive Road the Drainage Engineer recommended that the watercourse be maintained as part of the Municipal Drain. Upstream of the Lakeshore Drive Road, the channel on the Kaiser-Reid property was also to become part of the Municipal Drain and 40 metres of additional rip rap were to be installed.

On the Dabis property, the existing sediment ponds in the downstream end were to be incorporated along with the channel as part of the Municipal Drain. On the Snodden property the existing channel was to be incorporated as part of the Municipal Drain. Fencing was to be done at the time of construction and minor erosion was to be protected by rip rap. A cattle watering area was to be constructed and tree removal was to be done by agreement with the owner.

On the Robwildon Limited property, the 1200 mm railway embankment pipe was to be incorporated as part of the drain as well as the Channel running south along the Railway bed. The newly excavated Channel across the Robwildon/857238 Ontario Inc. property was to be filled in and the 1000 mm diameter culvert installed as part of the interim measures was to be removed. On the south boundary of the Robwildon property, the old Award Drain was to be re-located 3 to 4 metres to the north of its existing location. The Award Drain channel along this Concession 2 Road was to be deepened and widened.

At Highway 12 the existing 600 x 600 mm concrete culvert with the two 850 mm pipe extension was to be sealed and a new 750 mm pipe was to be installed by a boring method across the Highway to the north of the existing concrete culvert just north of the Concession 2 Road, which concrete culvert was to be incorporated.

On the Standard Industry property from the Second Concession Road north to where the former Award Drain crosses the CNR it was recommended that a new 200 x 230 m storm water management facility be constructed in the south part of the low wetland area that presently exists. It was estimated that this facility would pond 1200 mm of water in a 100 year overflow condition.

It was recommended that a new Branch A be constructed over the Harrigan and Meyers property. The existing private channel excavated in 1997 was to be incorporated across the Harrigan property.

The existing spoil piles were to be levelled and the banks hydra-seeded. The north/south channel is to be extended south on a similar alignment along the westerly boundary of the Harrigan property to intersect with the Main Drain at the Concession 2 Road. On the Meyers’ property, the existing 1997 excavated channel was to be incorporated. The banks were to be repaired and hydra-seeded. It was further recommended that Branch A be continued east along south of the Third Concession Road across the north part of the Meyers property to a point opposite the north west corner of the Egan property. It was further recommended that 500 mm metal piping be installed across the Third Concession Road, the north road ditches to be clean out and reconstructed from the above culvert easterly to Highway 12. The entrance to the Hache and Williams property would be provided with a new entrance pipe. Branch A was to be continued north along Highway 12 for 104 metre, the ditch to be widened and deepened. It was expected that these deepened ditches would give the Hache and Williams property good drainage potential.

The proposed Branch B was to include the existing east-west open channel on the Harrigan property together with the twin tiles. A catch basin at the top end of this double run of 150 mm tubing was to be incorporated and a further concrete catch basin was to be constructed in the west highway ditch and was to be joined to this existing catch basin with a 200 mm plastic tubing.

A new proposed Branch C was to make use of the west No. 12 Highway ditch north of the Second Concession Road to a high point in the ditch 230 metres south of the Third Concession Road. That ditch was to be cleaned out to a depth of between 400 and 650 mm.

A new proposed Branch D was to incorporate the existing 900 mm pipe of the CN Railway. The outlet of this pipe was into the storm water management drainage facility on the Standard Industries’ Limited property. The railway culvert upstream in the course of the old Award Drain was to be retained and was to have a small bottom clean out for a distance of approximately 400 metres. The proposed Branch D would then continue north along the railway right-of-way to the north end of the Lafarge property and would continue east along the northern limits of the Lafarge property. At a point opposite the east side of Harrigan Drive, Branch D would cross the Third Concession Road and proceed north a short distance along the west side of Harrigan Drive.

It was proposed that a storm water facility be constructed on the Township of Ramara Industrial Subdivision, having a dimension of 65 x 85 metres. The facility would have a depth of 1.3 metres, side slopes of 5:1. Branch D would serve as an outlet for the storm management facility which would be fenced with a new chain link fence.

The proposed Branch E would make use of the East Highway Ditch which was to be cleaned out from the Second Concession Road north to the culvert that was being sealed which is 600 metres to the north.

The proposed F Branch at the intersection of the old Grand Trunk Railway roadbed and Concession Road 2 would provide for the lowering of two 900 mm culverts, one crossing the road, the other crossing the old railway road bed and each was to be protected by rip rapping.

These lowered existing culverts would provide a good outlet for the lands to the south and to the west.

The Proposed Branch G would consist of an improvement to the South Concession 3 ditch upstream of the Branch A work, also the west ditch of Highway 12 for some distance south of Concession Road 3. This Branch would provide an improved outlet to the adjacent areas into Branch A.

The above mentioned proposals were elaborate and complex, but were designed to provide a good outlet for every portion of the watershed and to incorporate sufficient flow control mechanism to ensure that the downstream owners, namely Snodden, Dabis and Kaiser-Reid would not receive significantly greater levels of flow than they received traditionally under a properly maintained old Award Drain. Much greater protection was provided for greater flood events than the two year storm, even to the event of a 100 year storm.

This project involved approximately 1200 acres in the watershed and the anticipated cost to drain the area was $465,000.00.

BENEFITS TO OWNERS EXPECTED FROM THE PROPOSED WORKS

(1) The Kaiser-Reid property - the boat storage marina clean out would be part of the maintenance of the drain. Water quality would be improved by cattle fencing and newly seeded banks and storm water and quantity of flow would be controlled by the storm water management facility. The trailer part area would have additional rip- rapping along the banks.

(2) On the Dabis property, the ponds would be cleaned out, additional rip-rap would be added and allowances granted for the existing work done by the owner.

(3) Mr. Snodden would receive fencing and a livestock watering facility.

(4) Robwildon Limited and Chiu (857238 Ontario Inc.) would have the 1997 trench fully backfilled and tiles re-connected. The adjacent improved drain would give improved outlets.

(5) Joseph Harrigan would received major benefits in the form of the diversion of upstream waters that currently run onto his property from the Highway, which waters would either be cut off or provided with a better outlet. The highway ditch along the property was to be deepened and a berm constructed to further protect against flooding from the highway. The existing stockpiles would be levelled and a temporary sediment pond filled in with hyda-seeding throughout.

(6) Ike Meyers, like Harrigan, would receive an excellent outlet for agricultural drainage purposes. The new extension along the northern part of the property would cut off water flows from the north, particularly the highway.

7Highway 12 would receive greatly improved drainage by having ditches reconstructed as part of the drain and by re-directing water flows which currently flood adjacent private lands.

8Lafarge Construction would have the existing Award Drain relocated onto the railway property throughout much of its course. The storm water management facility, when constructed on its property, would be maintained as part of the drainage works.

9CNR would receive a better outlet for its 900 mm culvert which would eliminate standing waters with improved ditching.

10N. Hache and M. Williams (Boxcar Willy’s) would receive badly needed drainage outlets for their commercial property, permitting future improvements to their property.

11Carmen Smyth would be given a good agricultural outlet for his tile drains and the same provisions would be provided for the R. Corsetti and G. Borgacci properties.

The Drainage Report dated the 15th day of May, 2001 was completed and circulated to all Parties with a notice that all Parties would have a right to appeal any of its provisions at a further hearing before the Drainage Referee.

HEARING TO CONSIDER THE REPORT

The Hearing commenced on the 26th day of June, 2001, in the Court House in Barrie, Ontario before the Drainage Referee for the purpose of receiving evidence and submissions with respect to the design of the Drainage Project as outlined in the Report dated May 15, 2001. There appeared before the Drainage Referee Mr. Michael M. Miller, representing the host Township of Ramara, Mr. Seiler, representing the insurers of Meyers and Harrigan; Mr. Kussner was present and represented Robwildon Inc.; Mr. Aikins represented McCarthy Land Improvement; Mr. Malen represented Kaiser-Reid and Dabis; Mr. Scholtz represented Lafarge Canada Inc. and Standard Industries Ltd.; Mr. Leslie represented Mr. Meyers and Mr. Harrigan personally. In addition, Andy McBride, P.Eng. was present on behalf of Lafarge Canada Inc. and Standard Industries Ltd and Mr. Cooper, P.Eng. on behalf of Kaiser-Reid and Dabis.

Other assessed owners attended, some on an intermittent basis, although it should be noted that Mr. Meyers was present during every day of the hearing.

EVIDENCE OF THE PARTIES

Mr. Joseph Harrigan, one of the assessed owners, advised that he was operating a l00 acre family farm. He advised that the farm in the past had provided good crops, but in recent years, particularly since the construction of Highway 12 and the establishment of the Standard Industry’s quarry, his property had been subject to more and more flooding. He indicated that the water flowed from Highway 12 across his property and he had attempted to remedy the problem by tile draining his farm. He believed that the tile drainage needed an adequate outlet and he had therefore joined with his neighbor, Mr. Ike Meyers and Lafarge Canada Inc., in engaging McCarthy Land Improvements to construct a ditch to the west across the Chiu and Robwildon properties to outlet in the McNabb Award Drain. This construction work was done by one of the Defendants in the action, namely McCarthy Land Improvements.

After the private work he advised that he still did not have adequate drainage and his troubles were compounded when a damage claim was made against him by the downstream owners. He advised that he had a very limited financial return from his farm and if he had to pay significantly more dollars in assessments it would not be economically viable for him to continue his farm operation.

Mr. Ike Meyers, a neighbour of Mr. Joseph Harrigan, advised that he had a cow calf operation and that he too had installed tile drainage in 1997 and that the tile drains were working. He was anxious to find a legal solution to his drainage problems so that his tile drains would continue to work, but he advised that his proposed assessment was so high that he simply could not afford to pay it. He also agreed with Mr. Harrigan in stating that his troubles resulted from the flows from Highway 12 across his property and that these flows had increased in recent years.

Chris Strand, an employee of the Federal Department of Fisheries and Oceans, also presented evidence. He advised that he was working closely with the Drainage Engineer, Mr. Smart, on the Project and had already approved the interim work as provided in the Interim Report. He stated that he was also working closely with the Provincial Ministry of Natural Resources. He stated that he recognized the need for proper drainage in the area, but he had concerns with respect to the impact on the environment and fish habitat. He advised that his concerns related to the following issues:

(a) the time of the year the work was undertaken;

(b) the limitation of excavation work, particularly in the downstream area;

(c) the maintenance of shade trees along the drain and watercourses;

(d) construction of silt traps;

(e) recommendations with respect to the design of the storm water management facility on the Standard Industries’ property;

(f) assurance that there be no physical barriers constructed to prevent fish from travelling freely upstream.

At the conclusion of his evidence he gave assurances that he believed that all of these concerns could be accommodated in the design and he was confident he would be able to provide final approval.

Mr. Dabis, one of the downstream owners, advised that he had owned his farm since 1979 and operated it as a cash crop farm. He advised that the flow from the Award Drain was across his property in the form of a natural watercourse and that there were three ponds on his property. He maintained that the McNabb Drain terminated at the east limit of his property. He advised that in the spring of 1998, he noticed significant changes in the watercourse, both with respect to the quantity and quality of the flows resulting in erosion and sedimentation.

An investigation revealed the changes resulted from the construction that had been done upstream by the Defendants. Mr. Dabis indicated that he did not wish to have the watercourse on his property incorporated into the municipal drain and preferred to assume responsibility for the maintenance of the watercourse on his property.

Mrs. Kaiser-Reid advised that she had owned the resort property located at the outlet of the watercourse at the edge of Lake Simcoe since 1985. She said the family owned business consisted of cottages, a trailer park, a restaurant, a marina and a beach area. She testified that for the first time in 1998 she noticed that the water was dirty, filled with sediment and had acquired increased velocity. This resulted, she maintained, in erosion of the property which required them to re-enforce the banks with six truckloads of stone. In addition the yacht area partially filled with sediment and there was a plume of sediment at the outlet which affected in a negative way the beach area. She indicated, as did Mr. Dabis, that she did not oppose drainage for the farmers, but believed that it should not take place at the expense of downstream owners and affirmed her desire not to have the municipal drain extended downstream through her property.

Mr. Ted Cooper gave expert evidence on behalf of Mr. Dabis and Kaiser-Reid. Mr. Cooper advised that on the basis of his investigation he was of the opinion that the Dabis and Reid watercourse had never formed part of the 1903 McNabb Award Drain. Mr. Cooper further expressed concern with respect to the hydrologic modelling which was contained in the K.A. Smart Report and which had been ordered by the Referee in response to the request of Mr. Cooper. He stated that Mr. Smart’s objective of maintaining flows to the pre-1997 capabilities of “a well maintained” McNabb Award Drain might well have over estimated the pre-1997 flows. He stated that the model did not include such things as field storage, etc. He further criticized the run off co-efficient used in the table on Attachment D because it used the same run off co-efficient for agricultural lands as for the industrial area. Mr. Cooper therefore concluded that future flows would be greater than those indicated in the K.A. Smart Report.

Mr. Cooper further argued that the new ditches which outlet downstream of Highway 12 would increase flows downstream of the storm water management facility and the addition of the new bored pipe insured that there was a greater capacity for flows.

Mr. Smart had testified that the 1200 mm culvert at the abandoned old Grand Trunk Railway crossing immediately upstream of the three downstream properties provide an adequate flow control mechanism, having something less than a 2 year capacity. Mr. Cooper argued that with a newly constructed Drain, the flows to this 1200 mm culvert would increase and in fact result in flows greater than those anticipated by Mr. Smart.

Mr. Chiu advised that he was the President of 857238 Ontario Inc., a farm which was purchased in 1989 for a quarter of a million dollars. He advised that it was worth considerably less than that amount now and that he rented it to Mr. Meyers currently at approximately $1,000.00 per season. He advised that he wished to have the private ditch which was dug across his property by McCarthy Land Improvements filled in. He indicated that he was willing to have a storm water management facility constructed on his property, providing it would lower his assessment. He stated that he did not think he would get any advantage from the drainage work and that his assessment was too high.

Mr. Snodden, a farmer of some 50 years’ experience, advised that he farmed 98 acres and operated a cow calf operation. He indicated that he was aware of the need for drainage and approved the project in general terms, but he wished to have a watering pond for his cattle as opposed to nose pumps. He stated that the Award Drain had been cleaned in 1958 and that work had been done on the Dabis property at that time.

Mr. William D. Speedie advised he was a full time farmer with an operation of approximately 150 beef cows and sheep. He advised that his land was rough pasture and had limited value as farmland. He appreciated that Mr. Smart has already reduced his assessment by 50% but thought his assessment was still too high.

Mrs. Williams, an owner of a restaurant known as Box Car Willy’s advised that their assessment was too high. She admitted that they had heavy runoff from Highway 12 which had become much worse since 1998. She said that they had lost approximately an acre to flooding and that they had put in approximately 5 truck loads of gravel each year. She hoped that her flooding problems could be resolved.

REPORT AMENDMENTS JULY 27, 2001

The Drainage Engineer, K. A. Smart, at the request of the Drainage Referee, provided further recommendations amending features of his Report dated July 27, 2001 which were circulated to all Parties by the Solicitor for the Township of Ramara. These recommendations were made in response to some of the evidence given at the Hearing of June 26, 2001 and were made available to Counsel in advance of the written submissions which were provided to the Drainage Referee by August 17, 2001.

In response to the recommendations of Mr. Chris Strand of the Department of Fisheries and Oceans the following changes were proposed:

(1) There would be limited removal of trees on the Snodden property and along the north side of the point of Mara Road;

(2) The storm water management facility on the Standard Industry’s property would be re-designed so that there would be limited excavation adjacent to the wetted area and increased storage would be provided by berming. A channel for fish access would be ensured by the reduction in the excavation along the point of Mara Road so there would be a continuous grade through the concrete culvert below Highway 12 along Concession 2 Road. A new outlet would be found for the lower portion of the ditch on the west side of Highway 12 which would consist of a 450 mm pipe drain across the Harrigan property to Branch A. The new boring across Highway 12 would be raised to be consistent with the current water level of approximately 230.6 in the storm water management facility.

(3) There would be a deletion of the work on the Reid property and on all of the Dabis property except the upper 200 metres. Accordingly, the Kaiser-Reid and Dabis properties, save the upper 200 metres would not form part of the Municipal Drain and in the view of the Drainage Engineer, there was no need to provide an allowance pursuant to Section 32 of the Act for insufficient outlet.

(4) On the Snodden property an electric fence would be provided on the south side of the channel and a woven wire fence on the north side with a watering pond in place of nose pumps.

(5) Branch E would be reduced to the extent that the Highway Ditch would only be cleaned out and with respect to Branch C no excavation would be done in the southerly 100 metres.

SUBMISSIONS OF COUNSEL

Written submissions were provided by legal Counsel for the various Parties by the 17th day of August, 2001.

Mr. Miller, on behalf of the Township of Ramara, advised as follows:

1. The Township of Ramara urged that a new municipal drain be pursued to immediately repair and improve the old Award Drain of 1903 which was currently in a very bad state of repair. The Township asserted that none of the work undertaken by McCarthy Land Improvement was unlawful and that they had a right to make use of the McNabb Award Drain as an outlet.

2. Mr. Miller advised that the Township recommended the adoption of Mr. Smart’s Report, including the amendments recommended by Mr. Smart, which he listed in detail. He concluded by stating -

“It is respectfully submitted that the revised Report of Mr. Smart recognized the concerns of the vast majority of the property owners in the drainage area. The marina property owners are not interested in being a part of the Drainage Works and clearly understand the dangers which accrue to them by withdrawing from this Plan. Likewise, Mr. Dabis has expressed his position in this matter and to the extent that Mr. Smart can accommodate him, he has done so .The concerns of Mr. Strand of the Department of Fisheries and Oceans have been fully addressed and no additional monies need be spent on environmental studies. Fish habitat can be accommodated by modest changes to design on the Standard Industry’s property.”

B. Kussner on behalf of Robwildon Limited and 857128 Ontario Inc. submitted that:

“This Drainage Hearing was originally begun as two related actions for damages. It was converted to a Drainage Reference on consent of the Parties because it was agreed, in the words of Section 120, Subsection 1 of the Drainage Act, that ‘it may be conveniently tried before and disposed of by the Referee’ particularly in light of the acknowledged need for immediate remedial action.”

He went on to state:

“By the same token, Robwildon and Chiu are aware of the need for changes in the way drainage takes place on lands within the McNabb Drain. On that basis they do not oppose the jurisdiction of the Referee to approve elements of Mr. Smart’s Report for ultimate adoption by the Township. However, care must be taken to ensure that the measures which are approved and implemented are narrowly tailored to achieve this objective and not for the collateral purpose of providing additional drainage capacity for the industrial lands upstream in order to facilitate future industrial expansion on these lands.”

Mr. Kussner went on to approve in general terms most of the general recommendations made by Mr. Smart, but with respect to his own clients he urged that written assurances be provided that:

1. The tile drainage on its property will be functional; and

2. If they are not, the drains will be repaired at no additional expense to Robwildon Inc.

He confirmed that Mr. Chiu was willing to have a storm water management detention facility constructed on his property.

Mr. R. Malen made submissions on behalf of his clients, Kaiser-Reid and Dabis :

He urged that the 200 metre portion of the Dabis property that Mr. Smart recommended be retained as part of the Drainage Works also be excluded. Mr. Malen further recommended that the maintenance and improvement requirements resulting from the 1997 Works remain as part of the watershed plan. He also urged that maintenance and monitoring of erosion and sediment controls be improved. He went on to request that a monitoring plan be established to verify the effectiveness of the controls. He stated that if performance controls did not measure up that additional maintenance and restoration work should be done at the expense of upstream owners.

With respect to the law, Mr. Malen observed that Dabis and Kaiser-Reid would rely on their Common Law rights. He quoted the Court of Appeal case of Scarboro Golf & Country Club vs. City of Scarboro (1998), 1988 CanLII 4829 (ON CA), 66 O.R. (2nd) 257. He referred to a quotation in that case from a previous case as follows: “The right of a riparian proprietor to drain his land into a natural stream is an undoubted Common Law right, but it may not be exercised to the injury and damage of the riparian proprietor below, and it can afford no defence to an action for polluting the water in a stream. Pollution is always unlawful and in itself constitutes a nuisance”.

Mr. Malen further stated - “To the extent that the work proposed by Smart returns the flows in the channel to their pre 1997 conditions, Dabis and Kaiser-Reid will gain nothing over that which they originally had (and to which they have always been entitled), namely a clean and stable supply of water from their upstream neighbours.” Mr. Malen concluded by making this request “Pending implementation of permanent upstream controls, there is an urgent need to upgrade the failed interim sediment traps located on the Dabis, Robwildon and Harrigan properties.” On behalf of Dabis and Kaiser-Reid he requested that there be an immediate order in this respect with regular monitoring and maintenance (as specified by the D.F.O.) to prevent ongoing and future damages. In addition he advised that because of the erosion caused by the unauthorized 1997 Works, the reach between Highway 47 and the Dabis laneway is clogged with fallen trees and branches (as noted in the Smart Report). He therefore requested an Order for the removal of this debris to prevent a blockage of the culvert at the Dabis laneway with possible consequent flooding and washout/destruction of the laneway.

Robert F. Seiler:

Mr. Seiler commenced by stating:

“The interest of the liability insurer of these two landowners (Harrigan and Meyers) is an implementing measure that would eliminate the complaints of the downstream owners and avoid any risk of any future claims being made by them. At the same time the insurer recognizes that due deference must be paid to the personal positions of Harrigan and Meyers. Thus the insurer believes that the plan implemented by Ken Smart & Associates, particularly in the revised form presented on the afternoon of Thursday, June 28, 2001 is in most respects a satisfactory compromise between the conflicting needs of the various landowners. However, the insurer does not wish to see unbearable costs imposed on Harrigan and Meyers.”

Mr. Seiler went on to state:

“However, the uncontroverted evidence at the Hearing is that the M.O.T.back in 1974 did something analogous (referring to the McCarthy Improvement Drainage Works) creating a serious problem for Mr. Harrigan and inferentially a lesser problem for Mr. Meyers....however it is not clear that sufficient consideration has been given to the fact that without the problems created by the M.O.T., Harrigan’s and Meyers’ drainage problems might not have been nearly as serious in the first place. Consideration should be given to moving some of the burden from Harrigan and Meyers to the M.O.T.”

William J. Leslie Q.C.

Mr. Leslie made submissions on behalf of Messrs. Harrigan and Meyers in their personal capacity. He adopted the submissions made by Mr. Robert Seiler. He advised that both Parties were unable to afford the proposed assessments in the Report of Mr. Smart. He affirmed the evidence of Mr. Harrigan and Meyers was that the water problems began with the installation of the 1974 Highway 12 culvert and the establishment of the adjacent Lafarge quarry. He also requested that the assessment burden be shifted to M.O.T. so that both Mr. Harrigan and Mr. Meyers might be able to continue their marginal farming operations.

Steven A. Scholtz:

Mr. Scholtz represented his clients, Lafarge Canada Inc and Standard Industries Ltd. He advised that in general terms his client supported the Drainage Report of Mr. Smart, however, he indicated that they did have concerns. Although they recognized the need to increase the water level in the storm water management facility of the Standard Industries property they were concerned that it would result in back water in the storm water management facility in the Industrial Park.

Mr. Scholtz acknowledged that Mr. Smart had not yet completed his Report with regard to the Ramara Township Storm Water Management Facility but he urged that any revisions provide equivalent storage to that contemplated in the original Report. He also noted that because of the proposed higher levels in the Standard Industries Storm Water Management Facility, that the upstream effectiveness of the scheme with respect to the Lafarge property would be negatively impacted, both in Branch D, at the Railway culvert, and at the outlet of Highway No. 12.

Mr. Scholtz requested assurance that an opportunity would be granted to him and his clients to make further submissions with respect to the storm water management facilities after the details of Mr. Smart’s Report had been completed.

In accordance with the request of Mr. Scholtz and in recognizing that final details with respect to the storm water management facilities on the Standard Industries property had not yet been completed, the Drainage Referee agreed to conduct a further Hearing on the lst and 2nd days of November, 2001. It is agreed amongst the Parties that the only issue would be the design of the storm water management facilities so that Counsel who represented other Parties in this matter would not be obliged to attend. With eight legal Counsel and three Drainage Engineers involved in this proceeding it proved exceedingly difficult to arrange mutually agreeable dates for hearings.

On November 1 2001, Mr. Ken Smart presented his final recommendations with respect to storm water management facilities, both on the Standard Industries property and the Township of Ramara Industrial Park. With respect to the Township of Ramara site he recommended

(a) the proposed bottom elevation for the facility be revised from 231.30 to 231.45;

(b) the proposed bottom width be revised from 50 metres to 51.5 metres;

(c) the proposed bottom length be increased from 70 metres from 92 metres; and

(d) the grade of Drain D be increased from .05% to .06%.

He concluded that with the additional dimensions added, the total storage capacity of the unit would remain at 5700 m³ of net storage available.

Mr. Smart confirmed that the Department of Fisheries and Oceans was satisfied with the modification that had been made in his Drainage Report and in particular the modifications of the storm water management facility located on the Standard Industries property where the outlet had been modified so as to permit fish access to the storm water management site wetlands.

At the adjourned Hearing which convened on November 1, 2001. Mr. Scholtz appeared for Lafarge Canada Inc. and Standard Industries. Mr. Cooper, P. Eng. appeared for Mrs. Kaiser-Reid and Mr. Dabis.

Mr. Scholtz affirmed that Lafarge Canada Inc. did not object to the overall design nor did it put forward a proposal of its own. He, however, submitted that he stood by his submissions of August 14 in which the overall argument was that Lafarge Canada Inc. was not in a better position as a result of the changes. More specifically, he noted that there was a greater risk of Branch D flooding because the outlet was more restricted as a result of the higher pipe boring through Highway 12 and because of the closure of the existing culvert through the Highway adjacent to the Harrigan property. He noted that the changes that had been made were all made to appease the Department of Fisheries and Oceans. Mr. Scholtz concluded by pointing out that the allowance granted to Standard Industries for land taken was insufficient inasmuch as the new proposals doubled the area to be flooded.

Mr. Cooper raised a number of issues, most of which only indirectly addressed the issue before the Referee, namely the design of the storm water management facilities:

(1) He pointed out that the hydrological modelling did not account for field storage prior to 1997.

(2) He objected to the fact that the runoff co-efficient for the Industrial Park was the same as that for agricultural lands.

(3) He advised that the sediment control devices should be installed downstream of the 1997 new ditches.

Mr. Cooper, when questioned by Mr. Miller, conceded that he had not attended the early meetings conducted by Mr. Smart with the various owners in October of 2000 and in February of the year 2001.

Mr. Smart replied to Mr. Cooper’s criticisms as follows:

He advised that the field storage, particularly in the Harrigan property did not occur and in any event flows were controlled by the downstream railway 1200 mm culvert. With respect to sediment control downstream he pointed out that heavy sediment damage had already occurred and 80,000 cubic metres of storage available in the storm management facility on Standard Industries’ property provided a level of flow control greatly beyond the levels of a normal agricultural drain. He stated that the run off co-efficient in the Township Industrial Park reflected the fact that most of the park was undeveloped agricultural land.

With respect to the issues raised by Mr. Scholtz, Mr. Smart stood by the allowances granted for land used, noting that the land was zoned Environmental Protection. He did allow, that after hearing the presentations of Mr. Scholtz, that he would be willing to have the grade of Drain D left as it was in the May 15 Report so as to provide maximum depth to the Lafarge Canada Inc. property and a 150 mm drop at the road culvert.

ORDER OF THE REFEREE:

Having heard the evidence, listened to the submissions of Counsel, the Drainage Referee concluded that the Drainage Report of May 15, 2001 should be approved as amended and that the municipality for the Township of Ramara should proceed to pass a by-law adopting its provisions with respect to design. The matter of allowances and assessments to be determined at the Hearing scheduled for December 18 and 19 2001.

The wisdom of proceeding with a systematic drainage system in the watershed had been recognized by the owners of the property in this watershed as early as 1903 when they had initiated the McNabb Award Drain. That system was no doubt adequate for the time, when the primary use of the land was agricultural, but through time its operation was grossly impaired by the construction of highways, railways, roads, businesses, industry and neglect. The failure of the drainage system was demonstrated by the self help measures taken by farmers, Harrigan and Meyers whose lands were flooded to the point where their agricultural efforts were severely compromised. They, together with Lafarge Canada Inc. and the Township co-operated in the construction of a private ditch which they believed would serve the purpose. The ensuing difficulties suffered by downstream owners and the resulting legal action for damages all conspired to force the Municipality to recognize that a co-ordinated and systematic drainage system was required. The multiple land uses and consequent conflicting interests of the Parties, commercial, agricultural, utility, industrial, urban and rural made consensus very difficult.

The Parties wisely turned to the Drainage Act for a solution to the complex problems and in doing so referred the matter to the Drainage Referee so that immediate remedial action could be taken. It was recognized that a comprehensive drainage scheme should be established which would resolve many of the damages suffered by the Parties. It was likewise immediately apparent to the Drainage Referee and Counsels for the Parties that the complex relationship between the need for immediate remedial measures, preventative measures to mitigate damages, the need to incorporate some of the private work, the granting of allowances and the awarding of damages, all within the context of a legal action requesting a mandatory injunction by both claimants provided compelling reasons for the Drainage Referee to assume procedural control of all proceedings.

The adopting By-Law of the Township of Ramara shall include all amendments to the Drainage Report of May 15, 2001, more particularly those set forth in his letter dated the 27th day of July, 2001 and those set forth in his further letter dated November 5, 2001.

The November 5, 2000 amending letter is hereby clarified to confirm that the grade of Drain D will stand unamended as provided in the May 15, 2001 Report such as to give maximum depth to the Lafarge property and create a 150 mm drop at the road culvert.

The Referee is satisfied that the Drainage Engineer in completing the Drainage Report, together with the various amendments thereto was sensitive to the interests of all Parties and that the amendments reflect the many changes requested, both privately and at the various Hearings conducted by the Drainage Referee.

The Kaiser-Reid property and the Dabis property, except for the upstream 200 metres, have been removed from the Municipal Drain as requested by the owners. They made the decision to be removed from the Drain after having received expert advice both from their legal counsel and from their engineering consultant. Significant changes were made with respect to the work performed on the Snodden property reflecting the interest of Mr. Snodden and the interest of the representative of the Federal Department of Fisheries and Oceans. The measures implemented will further protect the environment and such measures, where possible, are firmly endorsed by the Drainage Referee.

Remedial work on the Robwildon and Chiu property was requested by the owners and it can be done in a very cost efficient manner as part of the general drainage work and I am satisfied that there is not a need for a storage facility on the Chiu property.

Significant amendments were made to the work along the Point of Mara Road and the Highway 12 crossing reflecting the recommendations once again of Chris Strand who represented the Federal Department of Fisheries and Oceans so as to permit fish habitat easy access to the wetland area incorporated in the storm water management facility on the Standard Industries property. Significant changes were made to the storm water management facility once again to oblige the recommendations of the Federal Department of Fisheries and Oceans, all in the interest of improved fish habitat and with the co-operation and consent of Lafarge Canada Inc.

Branch A of the proposed Drain will provide two significant farmers in the central area of the watershed with an adequate outlet for their tile drains justifying the major expense that they have both made in recent years in installing a major system of tile drains. The result will be to permit farm lands that were previously inundated with water (particularly the Harrigan property) to be farmed with some expectation of reasonable production.

Many changes were made with respect to Highway 12, including the closing of a major east west culvert adjacent to the Harrigan property. The cleaning of ditches including the considerable re-direction of flows in the ditches, particularly in the area of the intersection of Concession Road 3 and Highway 12 will give major relief to adjacent properties. Obviously these proposals were reviewed by Highway authorities and their approval is confirmed by their decision not to appear and oppose any of the work at the Hearings.

The Drainage Referee is satisfied that significant relief will be given to the commercial properties surrounding the intersection of Highway 12 and Third Concession Road which will benefit from this work. Likewise the farmers on properties adjacent to the work proposed around Branch F will benefit from an improved outlet.

The benefit accorded to Lafarge Canada Inc. and Standard Industries Ltd. together with the property owners in the Ramara Township Industrial Park, both present and future, will be by the provision of an adequate legal outlet.

The unique feature of this drainage system is the provision of two storm water management facilities, capable of dealing with a 100 year storm which level of protection is far beyond that normally provided in rural drainage systems. These storm water facilities, together with the historic culvert in the old Grand Trunk Railway which remains unchanged and unaffected by this proposed work will provide the historic level of protection to the downstream owners. The old railway embankment is very substantial and thus ensures a limitation in flows that is rarely available in drainage schemes. The entire scheme has been artfully crafted by a very experienced and sensitive Drainage Engineer who has laboured to satisfy the interests of all Parties. I am convinced that with the passage of time all owners in this watershed, even those who presently oppose the project (regrettably often without a clear understanding of its features and benefits), will acquire an appreciation of the need for this facility and the protection which it will afford. Future development in this watershed is inevitable and without the insurance provided by this drainage scheme, future flooding, losses, environmental damage and resulting communal anger would exact a much greater cost.

The matter of costs will be dealt with at a subsequent Hearing.