DECISION

This matter was heard by the Ontario Drainage Referee at a Hearing which commenced on Monday the 16^th day of July 2001 in the Superior Court of Justice, Court House, Barrie, Ontario.

The Drainage Referee had previously dealt with a related motion on the 27^th day of July 2000 in which the Applicants were successful in obtaining an order for amendments to the Statement of Claim.

The Statement of Claim as amended requested:

(1) a mandatory injunction requiring the Respondent to clean out, repair and maintain the Phelpston Marsh Drain in accordance with the specifications in relation thereto;

(2) damages for the years 1987 to 1996 in the amount of $250,000.00;

(3) pre-judgment interest in accordance with the Courts of Justice Act;

(4) their costs of this action, including applicable goods and services tax; and

(5) further and other relief as to this Honourable Court may seem just "

The claim for damages was pursuant to Section 79 (1) and (2) of the Drainage Act.

"Section 79 (1) - Upon 45 days notice in writing served by any person affected by the condition of the drainage work, upon the head or clerk of the municipality whose duty it is to maintain and report the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.

Section 79 (2) - Despite subsection (1), the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1) upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works. "

The Phelpston Marsh Drain dates back to 1921. The Drainage Basin includes land owned by Rockeynol Farms Limited, namely the north half of Lot 11 Concession 5, in the Township of Springwater. The Drain appeared to work adequately for many years until the outlet was damaged by Hurricane Hazel in the late 1950's. On July 26 1961, the Council of the Township of Flos passed By-Law 1572 which called for clean out, repair and enlargement of the Phelpston Marsh Drain. (Township of Flos has now become the Township of Springwater). The By-law resulted from a Drainage Report submitted by D. H. Weir, P.Eng.,in which Report Mr. Weir identified an area of quicksand at the lower portion of the Main Drain which he suggested required sheet piling to ensure an adequate outlet. The sheet piling was not installed and as a result, in 1967, the Drain was in need of extensive repairs.

Ainley and Associates Limited, Drainage Engineers, prepared a Report which resulted in By-Law 1675 dated March 4, 1968. This By-law further extended the drainage system and directed certain repairs. Ainley and Associates reported that the Main Drain in the area of the quicksand had narrowed to a width of from two to three feet in some places and that its elevation was some 3 feet above specifications. Accordingly, they recommended in the area of the quicksand that the ditch be excavated a foot below the grade set by Mr. Weir and widened to a minimum of 12 feet. When the repairs, pursuant to By-Law 1675, were completed the drainage system performed well and the evidence indicated that the lands of Rockeynol Farms Limited were dry and suitable for agriculture.

However, once again in 1977, the drain required extensive maintenance and this was done pursuant to a new by-law. In 1979 a notice in writing of disrepair was delivered to the Township by Colin Elliott on behalf of Rockeynol Farms and a neighbour, Tom Archer. The Township made efforts to repair the drain, but in the downstream area the grade level achieved was still 4 feet above the by-law specifications.

The function of the Drain therefore remained impaired and on July 3 1981 the Applicant, through his Solicitor, served a notice on the Township pursuant to the provisions in the Drainage Act. A notice commencing a proceeding before the Referee was also filed with the Local Registrar of the Supreme Court.

A Statement of Claim was subsequently delivered claiming damages and in October of 1983 Minutes of Settlement were agreed upon providing damages for the years 1979 to 1983.

The Statement of Defence of the Municipality admitted the drain was out of repair, perhaps reflecting the fact that some landowners believed it would be less costly to pay damages than to continue the expensive repairs.

A subsequent claim was issued for damages for the years 1984 to 1987 inclusive and Minutes of Settlement were once again entered into dated September 28 1987.

The matter of the Phelpston Marsh Drain remained controversial in the Community. A Report commissioned by the Township to put the drain in repair went through a series of appeals and involved the Township in other related legal procedures. The new Report was finally adopted and provided for a pumplift system to carry the flow over the troublesome quicksand area. Mr. Elliott, the owner of Rockeynol Farms Limited, supported the pump system proposal and it went into operation in

Rockeynol Farms Limited and Colin Elliott v. The Corporation of the Township of Springwater, 2001 ONDR 4

Case Summary

DECISION

Rockeynol Farms Limited and Colin Elliott v. The Corporation of the Township of Springwater, 2001 ONDR 4

Case Summary

DECISION