ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Sauve v. Champlain (Township)
2001 ONDR 5
2001-09-25
2001-05
STATUTE:
Drainage Act
HEARING:
BETWEEN:
2001-09-21
CINDY SAUVE
APPELLANT
-AND-
TOWNSHIP OF CHAMPLAIN
RESPONDENT
D E C I S I O N
The appeal was heard by the Ontario Drainage Referee on the 21^st^ day of September, 2001 in the Superior Court at L’Orignal, Ontario. The Appellant, Cindy Sauve, was supported in this appeal by her neighbours, all of whom reside downstream of the municipal drain on Pleasant Corners Road, all being represented by Mr. Robinson. The names of the aforementioned parties who joined Mrs. Sauve in the appeal were Bob & Bridgett MacDonald, Allen & Therese Dunsmore, Bill & Alice MacKinnon, Don MacKinnon & Marlene Nixon, Ruth Stevens, Jacques Franche, Mrs. Ratajczaki, Ron & Sue Billingsley, Guy Durocher & Ella Smith, John, Redmond & Louise Gauthier, Wayne & Judy Young and Yvonne & Ulrich Schoerer.
The Appeal was pursuant to Section 47 (1) of the Drainage Act "Any owner of land or public utility affected by a drainage works, if dissatisfied by the report of an engineer on the grounds that it does not comply with the requirements of the Act, or the engineer has reported the drainage works cannot be constructed under Section 4, may appeal to the Referee...."
Sections of the Drainage Act referred to in this appeal were as follows:
Section 15 "Subject to Section 32, every drainage work constructed under this Act shall be continued to its sufficient outlet"
Section 21 “The engineer in the report shall assess for benefit outlet liability and injuring liability and shall insert an assessment schedule, opposite each parcel of land and road liable therefor."
Section 23.2 “If from any land or road water is artificially caused by any means to flow upon and injure any other land or road, the land or road from which the water is caused to flow may be assessed for injuring liability with respect to a drainage works to relieve the injury so caused to such other land or road."
Section 32 "Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low lying lands in respect of such injuries."
Robert Lefebvre, Clerk-Treasurer of the Township of Champlain, filed with the Court an affidavit of service swearing that Notice of the Hearing had been mailed to all assessed owners and all interested parties on September 6, 2001.
The W.J. Douglas Municipal Drain was established by a by-law dated July 6 1927 passed pursuant to a Report prepared on February 1927 by W. H. Hagwood, P.Eng. Unfortunately no plan or profile of the Drainage Basin remained available. The works in the 1927 Report were described as: "commencing at a point where the Little Rideau River crossed the road between the Third and Fourth Concessions (Station 0) thence running westerly and southerly to the point where the C.P.R. intersected the line between Lot 6 and 7 in the 4^th^ Concession a distance of just over 8,700 feet. The dimensions of the drain were described as "the bottom width of the ditches to be 2.5 feet and Station 0 to Station 70 and 2 feet from Station 70 to the upper end and the side slopes were to be 1.25 horizontal to one vertical throughout."
It appeared that the drain was not maintained on a regular basis and when a request for maintenance was received, difficulties were immediately encountered in the absence of the plan and profile. The engineer was therefore instructed to re-construct the plan of the drain, and survey the existing ditch providing such improvements as might be desirable.
The improvements resulting from site meetings, etc. provided for an extension of the drain upstream from Station 1+500 towards Highway 34.
The extension of the drain upstream described in the 1998 Report, (which improvements are the primary subject of the current Report for the Upper W.J. Douglas Municipal Drain) is described as follows - “Commencing on Lot 9 Concession 5 of the Township of West Hawkesbury at Station 0+000, being a point on the south side of the Via Rail Canada Railway Allowance where it intersects Highway 34. From this point, the drain will run north easterly along the south side of the Railway Embankment until it reaches a concrete culvert at Station 0+511. There it crosses the Railway Embankment and is joined by a branch which originates 150 meters to the west, along the north side of the railway embankment. From that point the drain flows northeasterly along the north side of the Railway Embankment until it reaches the Canadian National Railway Embankment. It then flows north along the west side of the Embankment until it crosses under the CNR Railway. It then goes southerly along the east side of the CNR and then northerly again following the direction of the Via Rail and crosses the 6-7 Side Road to connect with the original head of the drain at Station 1+500 at the southwest corner of the Cusson property.” (Note that in the current Report Station 0 is the head of the drain while in the 1927 Report, Station 0 was the outlet of the drain).
Appeals with respect to the August 1998 Report were made to the Ontario Drainage Tribunal and resulted in a Hearing conducted on the 21^st^ day of January 1999.
The Decision of the Tribunal included the following Order:
"The work of improvement provided for in the Engineer’s Report is not to be undertaken until the repair of the existing drain has been completed and this is to be set out clearly in the Engineer’s Report."
As a result of the Tribunal Decision, a separate Report dealing with the original W.J. Douglas Municipal Drain was issued in November of 1999 and maintenance work on the original drain was conducted by the Drainage Superintendent during the year 2000.
A new Petition was received with respect to the proposed extension upstream, pursuant to Section 4 of the Drainage Act and a new Report was prepared under the heading The Upper W. J. Douglas Municipal Drain, which Report was dated December of 2000 and revised March of 2001.
The Upper W. J. Douglas Municipal Drain drains an area of approximately 273 hectares, part of which includes the rural geographical Township of West Hawkesbury and part of the Town of Vankleek Hill. The lands within the Town of Vankleek Hill are generally used for residential and industrial purposes. The lands within the Township of West Hawkesbury are generally used for farming purposes. The upper reaches of the drainage area are rolling and the lower reaches are flat with a slight slope towards the Little Rideau Creek which serves as an outlet for the entire drainage scheme. The soil map of Prescott County identifies the soils within the drainage area as mainly Grenville Loam and Bearbrook Clay with good to excellent crop capability. The Drainage Engineer concluded that drainage was very poor, especially in the area near the point of commencement, and determined that there was a sufficient outlet in the recently maintained W. J. Douglas Municipal Drain. Thus, although the Upper W. J. Douglas Municipal Drain and the old W. J. Douglas Municipal Drain commenced as one project, because of the Order of the Ontario Drainage Tribunal the project was severed and a new Report prepared for the upstream extension. Technically the current appeals were filed in relation to the Upper W. J. Douglas Municipal Drain, but the area of concern with respect to sufficient outlet applies to the entire project. Because the Upper W. J. Douglas Municipal Drain utilizes the older W. J. Douglas Municipal Drain as an outlet and because these projects were originally commenced as a single undertaking, I am prepared to deal with the sufficiency of outlet with respect to the entire Project.
ISSUES
The issue to be determined is whether or not the W. J. Douglas Municipal Drain, including its Upper and Lower Portions, has a sufficient outlet in accordance with the requirements of the Drainage Act.
SUBMISSIONS OF THE APPELLANT
Mr. Robinson, speaking for the various Appellants, advised that his clients living downstream of the outlet of the Municipal Drain along Pleasant Corners Road experienced extensive flooding every spring and during heavy rainfall events. He advised, and filed photographs to show, evidence of flooding in the subject area and further photos showing existing obstructions in the Little Rideau Creek downstream of the Municipal Drain Outlet. These consisted of a beaver dam and rock bars which clearly appeared to obstruct flows. He pointed out that the Municipal Drain Report did not specify culvert size, thus permitting culverts upstream of the Appellants to be enlarged at will with the resulting increase in flows. Mr. Robinson pointed out that the 1927 Report included a recommendation for improvements of the Little Rideau Creek downstream of the Municipal Drain outlet. These improvements, he indicated, had never been undertaken. Mr. Robinson also pointed out that the maintenance work that was completed in the year 2000 of the older W. J. Douglas Municipal Drain resulted in excavation in the area immediately below the outlet of the Upper W. J. Douglas Municipal Drain 4 ½ feet lower than the approved elevation in the 1999 Report. This, he pointed out, would increase the flows in the Drain, permitting further downstream flooding.
Mr. Robinson pointed out that the 1999 Report continued to permit private culverts along the course of the Drain and did not specify sizing. Mr. Robinson went on to urge that a complete Hydraulic Study of the entire watershed be completed so as to ascertain expected flows in the downstream areas of the Municipal Drain and the Little Rideau Creek watercourse.
Mr. Robinson concluded by urging that consideration be given to granting damages for injurious liability to downstream owners in the event that further work was not undertaken in the Little Rideau Creek.
SUBMISSIONS OF MR. LEVAC
Mr. Levac filed photographs with the Court noting that the farmlands in the upper reaches of the drainage area were in need of improved drainage. He filed a Hydraulic Capacity Study which indicated the sizing of the culverts in the Upper W. J. Douglas Municipal Drain would be either reduced in capacity or maintained at the same flow capacity as a result of the proposed work. He submitted that because the culverts were in old railway embankments that the embankments would act as storm water management devices and control flows to consistent levels during flood periods. He indicated the estimated cost of the Upper W. J. Douglas Municipal Drain would be $56,480.00 and maintained that it had an adequate outlet in the downstream drain, namely the W. J. Douglas Municipal Drain. Mr. Levac called as his witness, Michael St. Jean, the Drainage Superintendent for the Municipality who had supervised the work of maintenance in the W. J. Douglas Municipal Drain. Mr. St. Jean agreed with Mr. Levac in his opinion that the culverts to be installed would restrain the flows from the Upper W. J. Douglas Municipal Drain but acknowledged that during the drainage work that the upstream end of the W. J. Douglas Municipal Drain had been over excavated, both as to width and depth because of the muck conditions. He was of the opinion that it would quickly fill in over time. Mr. St. Jean agreed that there were obstructions in the Little Rideau Creek watercourse downstream of the municipal drain, but stated that he had no authority to move the obstructions because that area did not form part of the municipal drain. He advised that he was familiar with the area of the watercourse downstream of the drain and that, in his view, clearing of the obstructions would be desirable and that the flooding would be considerably decreased even without the deepening of the channel.
CONCLUSIONS DRAWN FROM THE EVIDENCE
The Referee, having heard the evidence and the submissions given, arrived at the following conclusions:
l. There was a need for drainage, particularly in the upper reaches of the proposed Drain.
It was apparent that the culverts to be installed and/or lowered in the Upper W. J. Douglas Municipal Drain would act as storm management devices restricting the level of flows, although it is recognized that considerable surcharging could occur and increase flows during times of heavy flooding.
Clearly, the upper end of the W. J. Douglas Municipal Drain was over excavated, well beyond the dimensions permitted by the By-law of 1999, both with respect to depth and bottom width.
The 1999 Report was flawed in that it did not specifically provide that any alteration of culverts located in the drain would require the permission of the Drainage Superintendent.
A preponderance of the evidence provided at the Hearing established that the W. J. Douglas Municipal Drain had not been taken to a sufficient outlet. However, the evidence was not sufficient to determine the extent of the downstream extension required nor did it provide any guidance with respect to cost.
The downstream appellants are entitled to some relief from flooding, either through improvements to the Little Rideau Creek watercourse and/or by way of an injurious liability award.
During the course of the Hearing the Referee was advised that the Ontario Drainage Tribunal was about to schedule a Hearing with respect to the subject drain dealing with the issue of assessment. Thus it appeared prudent and cost effective to the Referee to have the Drainage Tribunal determine the design of the extension and/or issue of injuring liability at such a Hearing. This task would be made easier if the Tribunal could be provided with further engineering evidence with respect to a downstream extension and the estimated cost of the same.
ORDER
IT IS THEREFORE ORDERED THAT:
The Drainage Engineer immediately conduct a survey of the Little Rideau Creek, downstream of the drain outlet, and prepare a preliminary report with respect to obstacle removal and straightening, if deemed necessary, together with an estimate of cost for such work or in the alternative proposals for injuring liability. Such Report to be submitted to the Drainage Tribunal at or in advance of their scheduled Hearing. The determination of the extent of the downstream extension of the Drain or the measure of relief by way of an injuring liability award is hereby referred to the Ontario Drainage Tribunal.
The Drainage Engineer review the existing culverts in the W. J. Douglas Municipal Drain and those immediately downstream in the area of concern so as to be in a position to make recommendations to the Tribunal with respect to sizing and revisions in the Report so as to control culvert alterations..
All other matters, including costs, are adjourned until after the Ontario Drainage Tribunal has dealt with the matters referred to herein, to be continued after due notice.
DATED: September 25, 2001
D. A. O’Brien
Ontario Drainage Referee