TOWN OF BRADFORD-WEST GWILLIMBURY

APPLICANT

-AND-

TOWNSHIP OF KING, TOWN OF EAST GWILLIMBURY,

TOWN OF CALEDONTOWN OF NEWMARKET

and TOWN OF NEW TECUMSETH

RESPONDENTS

D E C I S I O N

This matter was heard by the Ontario Drainage Referee in the Superior Court of Justice at the Court House, 114 Worsley Street, Barrie, Ontario during a series of Hearings, commencing in March 02 and being completed on the 17^th day of July, 2002.

The matter came before the Drainage Referee by Order of the Agriculture, Food and Rural Affairs Appeal Tribunal dated the 30^th day of January, 2001. The order of the Tribunal is quoted in full as follows:

“ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed, the Minutes of Settlement, and the submissions made the Tribunal orders:

The application by Bradford West Gwillimbury for permission to procure an engineer’s report to vary the assessment schedule for the Holland Marsh Drainage System under Section 76(1) of the Drainage Act is granted.
In the first instance The Town of Bradford shall pay the entire costs of the engineer’s report.
75% of the costs of the engineer’s report shall be assessed to the owners of land in the Holland Marsh Drainage Scheme according to the current by‑law.
25% of the costs of the Engineer’s report shall be paid by the parties to this application in accordance with the proportions set out in Schedule “A” attached hereto, from the general funds of each municipality if the application to the Referee fails. In the event the application to the Referee is successful, the 25% shall be assessed out under the report (as may be varied by the Referee). For the purposes of this provision, the application to the Referee shall be deemed to be successful if the Referee holds that any lands upstream of the Holland Marsh Drainage Scheme are liable for outlet assessment.
The parties shall circulate the proposed assessment schedule to all affected owners and shall co‑operate in appropriate pre‑hearing procedures to distribute information, receive inquiries, focus issues and group similar concerns so that the hearing before the Referee can be conducted efficiently.
Each party shall bear its own costs of the pre‑hearing procedures.
Pending the completion of these proceedings any repair and improvement work on the Drain shall be conducted pursuant to the provisions of s. 78 of the Act.
This Order is without prejudice to any party identified in the engineer’s report to raise issues of legal liability in regard to the possible extension of the drainage area and the ability to assess riparian owners.
Upon the completion of the engineer’s report the applicant and all of the respondents shall make an application to the Referee to decide the legal issues referred to in paragraph 8.
Upon the application being filed all proceedings under this application are adjourned to the Referee, but until the commencement of the application referred to in the previous paragraph the Tribunal retains jurisdiction and the parties are at liberty to apply to the Tribunal for further directions. This panel is not seized of the issue.
The non‑administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Andrew Osyany

Vice Chair

Dated at Shelburne, Ontario this 30^th day of January, 2001.”

In accordance with Clause 5 of the above mentioned Order the Parties on consent, applied to the Ontario Drainage Referee for a Procedural Order which was granted in the following terms:

IT IS ORDERED that the transfer of this matter from the Agriculture, Food and Rural Affairs Appeal Tribunal pursuant to the Drainage Act, s. 119, is acknowledged.
IT IS FURTHER ORDERED that the Applicant and initiating municipality shall be the Town of Bradford‑West Gwillimbury and the Respondents shall be the Township of King, the Town of New Tecumseth, The Town of East Gwillimbury, and Town of Caledon and the Town of Newmarket and such other assessed owners as may file Notices of Appeal as herein provided.
The engineer, Ken Smart P. Eng., shall prepare a Schedule of Assessment for the Holland Marsh Drainage Scheme which, in his opinion, reflects the fair and equitable allocation of costs for works of maintenance and repair of the Holland Marsh Drainage Scheme.
AND IT IS FURTHER ORDERED that the Applicant shall serve a copy of such Assessment Schedule on the head of Council of each of the responding municipalities.
AND IT IS FURTHER ORDERED that the Applicant and each of the Respondents shall circulate to each assessed owner within its boundaries, a copy of the entire proposed Assessment Schedule which affects all the lands within such proposed watershed boundary, together with an explanatory note indicating in general terms the purpose and effect of such Schedule and giving notice of a public information process as provided herein.
AND IT IS FURTHER ORDERED that each of the Respondents individually or jointly at their discretion and the Applicant shall conduct a public information session or open house. That process shall be completed within 90 days from the date of service of the Assessment Schedule.
AND IT IS FURTHER ORDERED that owners shall be advised by such public information process that they may appeal their assessment by filing a Notice of Appeal to the Referee with the clerk of the municipality in which the lands are situate, on grounds as set out in the Drainage Act, section 52. The deadline for filing such appeals shall be set by each of the Parties for appellants within their respective municipalities from the service of the Schedule of Assessment. The Respondents are deemed to have appealed their assessments on the grounds that they are not to be assessed at all because lands owned by them are either riparian lands or are lands not liable for outlet or injury, and on such other grounds as they state.
AND IT IS FURTHER ORDERED that the clerk of each of the Respondents and the Applicant shall collect, record and group similar complaints from their respective municipalities, to expedite the hearing before the Referee.
AND IT IS FURTHER ORDERED that within 150 days from the service of the Schedule of Assessment, the clerk of each of the Respondents and the Applicant shall serve on each of the others, by an alternative to personal service, a copy of the materials referred to in paragraph 8. and shall file such materials with proof of service with the Referee.
AND IT IS FURTHER ORDERED that any party may apply to the Referee for a hearing date, such application to be at least 180 days from the service of the Assessment Schedule. Any party may contest the hearing date sought.
AND IT IS FURTHER ORDERED that pending completion of these proceedings any work of improvement on the Holland Marsh Drainage Scheme shall be conducted pursuant to the provisions of the Drainage Act, section 78. Provided that the Applicant is not prevented from performing work of repair and maintenance under Section 74, according to the by‑law (s) in effect at the time of such work.”

The above mentioned Procedural Order was significant for several reasons and was only agreed upon by the Respondents after lengthy negotiation. It was clearly designed to satisfy basic natural justice requirements in rather unorthodox circumstances where the owners of approximately 65,000 acres of land were proposed to be assessed for the first time in the Holland Marsh Drainage System. The Drainage Referee approved the preceding Order pursuant to Section 107 (2) of the Drainage Act, R.S.O. 1990 Chap D17.

As a result of the Hearing conducted on the 13^th day of March, 2002 in the Superior Court of Justice at the Court House, Barrie, Ontario, a further Order was made by the Drainage Referee setting a date for the Hearing, namely the 27^th day of May, 2002. A further Procedural Order dealing with preparations for and the conduct of the Hearing was consented to by the Parties and executed by the Drainage Referee. It provided for witness statements to be filed, production of documents, examination of the Drainage Engineer, issues to be tried, Order of Proceedings, Complete Statement of Facts, etc.

HISTORY

In accordance with the Order of the Tribunal, the Town of Bradford-West Gwillimbury, retained the engineering firm of K. Smart Associates Limited to prepare a Section 76 Report. The extensive Report was completed, dated April 27 2001, and signed by K. A. Smart, P.Eng. In the summary of the Report, the Drainage Engineer described the purpose of the Report as follows:

The purpose of this report is to prepare a new schedule of assessment for future repair, maintenance and minor improvement (hereafter abbreviated to just “maintenance”) purposes of the canals and dykes that form part of the Hollard Marsh Drainage System. The present Holland Marsh Drainage System is maintained in accordance with the assessment schedule that originated from the original 1924 report of construction but that has been updated in 1949 and again in 1990.

The previous assessment schedules for maintenance have only involved lands and roads bounded by the two perimeter canals and dykes. Recent studies have indicated that the assessment schedule for maintenance of the canals and dykes should include all lands and roads that are tributary to the canal/dyke system. A report on the Holland River Drain in 1930 actually assessed many of the tributary lands in King, Tecumseth and Caledon plus some in West Gwillimbury and an amount was paid then to use the Holland Marsh Systems as an outlet. Accordingly the purpose of this section 76 report is to modify the existing assessment schedules for maintenance to include all lands anal. roads that are tributary to the dykes and canals plus to include previously assessed interior Marsh lands.

Assessment schedules for maintenance that are prepared pursuant to Section 76 of the Drainage Act are required to show amounts against each land and road in order to establish the shares each land or road would bear for future maintenance. The amounts shown are not sums to pay. They are only presented to establish the proportion that a property should bear when maintenance work is undertaken. These proportions are also normally used to bill out the cost of the Section 76 report itself. The normal procedure is to take the costs of maintenance, divide it by the total assessment shown in a Section 76 report, and then to multiply each owners’ assessment in the Section 76 report by the resultant number to determine the owners’ share of any specific costs.

The number that has been selected to establish the total of the Section 76 assessments in this report is the figure of $1,102,700 which was used in the 1990 report and which would be the latest assessment schedule applicable to the interior marsh lands. (This cost in 1990 was assessed only to the interior marsh lands since the project was for the pumping station.)

The basis of the assessments within this Section 76 report are such that 25a of the $1,102,700 assessment is assessed to all exterior lands and roads and the balance of 75% will remain with the interior marsh lands.

For any owner to find what his share of future maintenance would be, he has to find those assessment pages that relate to his municipality and he can then find his property which is listed in numerical order of property assessment roll number. The dollar amounts then shown beside the owner’s name can then be divided by the total of all assessments which is $1,102,700 and then be multiplied by 100 to determine the owner’s percentage share for future maintenance. Then whenever maintenance is undertaken, the owner will be assessed this proportion of the costs.

An example of how to calculate an owner’s share or percentage of future maintenance is as follows (based on last listed land property in this report):

Roll No. 040‑002‑19500‑Assessment in this report $408

Share of future maintenance of lands and dykes: (408 divided 1,102,700) x 100=0.037%

If future maintenance costs were $200,000, this owner’s portion of it would be:

(0.0327 divided 100) x 200,000=$74

Schedules contained in this report will only be applicable to maintenance of the canals and dykes. The other components of the Holland Marsh Drainage System which includes the central river and the pumping schemes will continue to be maintained against assessments to the interior marsh lands only.

To arrive at a fair distribution to all the exterior lands and roads, factors were applied to each parcel to consider their land use, the topography of the parcel and the soil types.

This report is to be circulated to all affected lands and roads subject to the provisions of revised Section 41(3) of the Act which exempts the mailing of the report to properties assessed for less than $100.00. Also a Municipality may pay any actual assessment that results if $50.00 or less out of general funds. The final decision as to what owners received a full report and which, if any, assessments are to be paid will be the decision of each Municipality. Public meetings, one per Municipality, may be conducted to explain the procedure or to deal with any specific assessment; and any owner who is dissatisfied with his share of future maintenance may appeal to the Ontario Drainage Referee ...

...WHAT IS THE HOLLAND MARSH DRAINAGE SYSTEM (HMDS)

It is a Municipal Drain pursuant to the Drainage Act

It consists of 2 canals (north and south), 2 dykes, the Central River which is now the Main Drain, 2 pumping stations

The two canals with their dykes in effect reroute the Schomberg Branch of the Holland River around 7,000(+‑) of low laying marsh land and roads. The canals and dykes start at Highway 9, 2(+‑)km west of Weston Road and converge some 13 to 14 km easterly just 0.2 km upstream of Highway 11 and to the south of Bradford

The original river that flows through this 7,000 acres is maintained today at a level of some 2.6 metres below the water level in the canals.

This allows the 7,000 acres to be drained into the river.

Originally 1 pumping station in Bradford was constructed but then due to the construction of Highway 400, a second station was built opposite the mouth of the North Branch of the Schomberg River.

The North dyke is now Simcoe County Road 8 from the former Town of Bradford’s limits west to Highway 9. The east part is a Town road within the former Town of Bradford

The South dyke is in part King Township roads (Pumphouse Road, King Street, Woodchoppers Lane and South Canal Bank Road), in part Highway 9, in part lane and in part just a dyke.

HOW WAS THE HMDS CREATED

In accordance with an Engineer’s report pursuant to the Drainage Act.
Engineer was Alexander Baird (Sarnia)
His report was dated June 19, 1924
It is believed construction was completed in or around 1930.”

On the 27^th day of May, 2002, the Hearing reconvened in the Superior Court of Justice in Barrie, Ontario. Legal Counsel appeared representing the Applicant and the Respondents, however, none of the individual Appellants appeared either personally or by counsel. After dealing with a number of procedural matters including a request for a further adjournment by William Turville, the Ontario Drainage Referee adjourned the Hearing until Wednesday, the 28^th day of May, 2002 at the hour of 10:00 o’clock in the forenoon. The Referee further ordered that the Municipal Clerks of the Respondent Municipalities notify all Appellants within their jurisdiction, either by telephone or personally, to inform them that the Hearing would proceed on Wednesday and to advise each and every one of them that they must appear if they wished to have their respective appeals heard.

At the commencement of the Hearing on Wednesday, the 28^th day of May, 2002, affidavits were filed by the respective Clerks of the Respondent Municipalities, attesting to the fact that notice had been given to all the Appellants as noted in the style of cause with the exception of H. O. Pritchard, of Bolton, Ontario. The only Appellants to appear personally before the Referee were William Gray, acting on his own behalf and Allen Leach who appeared on behalf of the Lake Simcoe Region Conservation Authority.

EVIDENCE OF KEN SMART, P.ENG.

Mr. Smart was sworn and gave evidence in support of his Section 76 Report to establish that “conditions had changed or circumstances had arisen such as to justify a variation of the assessment”. He advised that the canals which had been constructed as part of the system were currently substantially full of silt. He noted that because the interior lands of the Holland Marsh pumped their excess water into the Schomberg River that all silt that lodged in the Holland Marsh canals must have been deposited from upstream lands. He stated that in several spots the canals were so filled with silt that a small outboard motor could not operate freely although the canals had been originally dug to a depth of 9 feet to 10 feet. Mr. Smart attributed the silt from the upstream lands to the following factors:

a. Very considerable change in farming practices from cattle operations which were very dependent on pasture and hay operations to cash crop farming. In cash crop farming, Mr. Smart reported, the entire acreage is cultivated yearly with significant to severe seasonal runoff. The extensive use of fertilizers further contributed to the weed growth, etc. in the canals.

b. The development of roads ‑ Highway 400 running north and south, Highway No. 9 running east and west with extensive ditching, the major portion of which outlets into the Holland Marsh.

c. Municipal Drains, such as the Holland River Drain which has its outlet in the Holland Marsh Drainage System, drains 23,000 acres in Caledon, Tecumseth and King, which drain contributed a one time outlet payment of some $1,200.00 in 1931. In addition to the municipal drains there are many improved natural water courses, all of which outlet downstream into the Holland Marsh system.

d. In addition, he advised, there had been tremendous commercial and residential development in the area, all of which contribute substantially to increased velocity of flows.

Mr. Smart further indicated there has been substantial changes in the Holland Marsh system itself. Many of the changes resulted from Hurricane Hazel’s flooding, such as the removal of a six foot berm between the canal and the dyke, the widening of the south and north channels and excavation to a depth of 10’. In addition, excavated materials were leveled on the marsh side of the dykes in order to widen, raise and strengthen them. Pump houses had been constructed and re-constructed as part of the works.

Mr. Smart concluded by stating that it was his opinion, as supported by the practice of most engineers and the plain reading of the Drainage Act, that the upstream lands in the watershed should pay their fair share of the assessment. He advised that in his opinion it was unfair to have the interior 7,000 acres deal with the entire costs of maintaining the system when the system was the natural outlet for flows from the entire 65,000 acre watershed.

Mr. Smart then went on to explain his method of assessment with respect to each property. He advised that all assessment for the upstream lands was based on outlet liability or injurying liability and that any benefit could be assessed to the interior marsh lands. He indicated that his assessment was based on Section 23 of the Drainage Act and particularly Subsection 3 is quoted as follows:

“The assessment for outlet liability and injuring liability provided for in subsections 1 and 2 shall be based upon the volume and rate of flow of the water artificially caused to flow ...into the drainage works from the lands and roads liable for such assessments.”

Each property was considered separately and given a factor depending on land use (e.g. residential and/or wooded area). Consideration was also given to the type of soil and the slope of the land, which together contributed to the rate of flow from the land. For example, residential might be given a factor of .4 and a wooded area a factor of .2, which together with the area of the parcel would determine the assessment.

In the Report there are 132 pages of individual assessments, each page consisting of approximately 60 property owners. The assessment schedule represented a herculean effort because each property owner received a very subjective calculated assessment. Mr. Smart went on to advise that he did not distinguish between riparian owners and non riparian owners because the Drainage Act did not make any such distinction and in his opinion most of the Drainage Profession in Ontario did not distinguish assessment on that basis.

Mr. Smart further advised that he was currently working on a Section 78 Report to repair and improve the Holland Marsh Drainage Works and that the Assessment Schedule that he had prepared pursuant to Section 76 could be used as a basis for the assessment in that Report of Repair and Improvement. He estimated that the total cost of the work envisaged in the Section 78 Report would be approximately 11.9 million dollars. Of that, 3.9 million would be assessed to landowners and roads; 2.6 million would be assessed to the Conservation Authority (M.N.R.) with respect to flood control; 2.7 million would be assessed with respect to road public safety to the Ministry of Transportation and Communications (M.T.C.) and 2.7 million for roads and bridges (Municipalities).

Mr. Smart concluded by making amendment recommendations to the Drainage Referee with respect to the assessment of individual owners. The assessment amendments he requested were as follows:

(A) Parcel 1949‑000‑027‑52600 King Township being the property of Mrs. Margaret Britnell. It was recommended that the amount of the assessment in acreage be .2 hectares rather than the original .54 hectares. This change would affect the original assessment of $4.00 by lowering it to $2.00

(B) Parcel 1949‑000‑100‑12000 owned by Mr. and Mrs. Tettenuzzo. It was recommended it have a “C” value equivalent to a .3 instead of an estate residential lot with a value of .35 because of its wooded status, thus changing the assessment from $25.00 to $21.00.

(C) Parcel 1949‑000‑125‑20000‑21000 being the property of Mr. Hodgson. The first property is 40% sandy loam soils, terrain of 2‑5% crop land use; 33.5% clay loam soils, terrain of 2‑5% crop land use; 25% sandy loam soils, terrain of 5% woodland use and 1.5% depressional for a pond which would put “C” value equal to .3162 instead of .35 changing the assessment from $209.00 to $189.00. Parcel 21000 recommended no change.

(D) Parcel 2124-010-001-09105 owned by H. O. Pritchard. The property is designated as a “depressional area” instead of original wood estate residential. This would change the property from “C” value from 0.25 to 0.05 and would effectively reduce the assessment from $3 to $1

(E) Parcel 1949‑000‑114‑36000 & 1949‑000‑123‑55500 owned by Lake Simcoe Region Conservation Authority. The first property with a “C” value would change from 0.1625 to 0.1475, altering the assessment from $309 to $281. The second Parcel the use classification would change from crop to pasture, thus changing the “C” value from .035 to .3 thereby changing the weighted “C” value to 0.25 which in turn alters the assessment from $31 to $28.

WILLIAM GRAY EVIDENCE

Mr. Gray indicated that he had a small parcel 20’ x 30’ which he had owned for approximately 52 years. He indicated that annual taxes were $4,000.00; that he was a pensioner and had considerable trouble paying his taxes. He acknowledged that his assessment, pursuant to the Schedule, would be $9.00.

ALLEN LEACH, APPEARING FOR CONSERVATION AUTHORITY

Mr. Leach, speaking on behalf of the Conservation Authority expressed concern about the overall cost of the project. He explained that the cost would be prohibitive if the various grants were not approved by the Government, particularly the grant through the Conservation Authority from the Ministry of Natural Resources. Mr. Smart assured him that if the grants were not provided by the Government the project would be considerably reduced in size and therefore cost. Mr. Smart further assured Mr. Leach that estimates had been received from several contractors with respect to the work and accordingly he did not expect a cost overrun. Mr. Smart further confirmed that dredged material which was not used in the project to fill canals would be hauled away. Mr. Leach indicated that the Conservation Authority did not oppose the Project providing the Government Grants were forthcoming. Mr. Leach, however, thought the Conservation Land should not be assessed inasmuch as, in his opinion, it would not realize any benefit from the Drainage Project. Mr. Smart replied that even the Conservation Land was not in an absolute state of nature and therefore required some measure of assessment, although in the circumstances of this project, the amount of the assessment on conservation lands was very minor. Mr. Smart recommended the reduction of the assessment in two of the properties appealed by the Regional Conservation Authority.

EVIDENCE OF ART JANSE, DRAINAGE SUPERINTENDENT Town of Bradford‑

West Gwillimburv

Mr. Janse advised that he had a long history of association with and therefore knowledge of the Holland Marsh Drainage Scheme. He indicated that he was instructed to examine the Drainage System as far back as 1986. He advised that there were many changes in recent years including the construction of the new Pumping Station in 1993. He advised the South Canal was 50o full and in four places was nearly blocked. He stated that he was very concerned with the condition of the system and that if there was heavy snow fall, the dykes would be overtopped. He stated that he was firmly of the opinion that the silt came from the upper lands and that the canal water which had been clear was now brown in colour. He stated that there had been major improvements of roads, road ditches and improvements in natural watercourses. The farm lands had been tile drained and the tile drains often had an outlet in the road ditches. He advised that the Municipality had been served with notice to put the system into repair and the application pursuant to Section 76 of the Drainage Act was the result. He stated that, in his opinion, the assessment on the upper lands should be 40% rather than the 25% suggested by Mr. Smart.

He advised that new building permits indicated that the structures in the area had increased by 30%. He stated that the various Ministries were supportive of the Project but wanted the issue of upstream assessments settled before they would proceed to give further consideration to funding. He noted that the level of water in the outlet of the Central River (the Schomberg Branch of the Holland River) was more than 4’ higher than land level of the marsh. He concluded by stating that he had witnessed a decade of rapid development over the entire watershed.

SUBMISSIONS OF PAUL COUREY. COUNSEL FOR THE APPLICANT

Mr. Courey defined the‑issues as follows:

(A) Procedural correctness of proceedings;

(B) Compliance with the requirements of Section 76 of the Drainage Act; and

Mr. Courey advised the Referee that because of the scope of the project, involving multiple municipalities, approximately 72,000 acres and many thousands of owners, routine procedures proved inadequate and accordingly the Municipalities had co‑operated in recommending a joint procedural order. With respect to the assessed owners who were not consenting parties to the Procedural Order, the Order provided explicitly for notice to be given to every owner of the proceedings by other means. He noted that by Order of the Drainage Referee, notice by telephone was given to all Appellants of the adjourned Hearing which proceeded on the 16^th day of July 2002. He observed that the fact that several dozen appeals by individual owners had been filed reflected the opportunity afforded.

With respect to the appropriateness of a Section 76 Report, Mr. Courey advised that the two requirements, namely conditions “having changed” or “circumstances have arisen such as to justify variation of assessment”, were both very evident in the circumstances of this case. He reviewed the evidence presented by Mr. Smart and Mr. Janse with respect to the change of conditions. He noted that there appeared to be no quarrel with the definition of the watershed as described by Mr. Smart nor the proposition that the Holland Marsh Land System was a natural outlet for all water collected in the water basin.

Some of the changes referred to in the evidence he reviewed as follows:

an increase in the maze of roads servicing the area which included the construction of Highway 400 and the substantial enlargement of Highway 9, both of which bisect the watershed.
remarkable urbanization and population increase which resulted in substantial residential development (e.g. 30% increase in structures in the Municipality of Bradford West Gwillimbury)
agricultural changes which affected the entire watershed as farmers switched from livestock, both dairy and beef production to cash cropping of corn, soya beans, etc. This process converted pasture land and hay production to intensive cultivation of all acreage in annual crops. Such a practice, he argued quite naturally, produced extensive runoffs of soil causing serious downstream siltation.
Another feature of the cash crop cultivation was the intensive use of chemical fertilizers which contributed substantially to weed and aquatic growth in the canals, etc. The evidence disclosed intensive crop farming involved extensive systematic tiling of the land with resulting increased municipal drains and improved watercourses, all of which serve to ensure a steady flow of upstream water downstream during the run‑off season. He pointed out that the evidence disclosed the densely brown colour of the water in the canal after rains and the presence of thick aquatic growth all attesting to substantial change in agricultural land use. The evidence of 10’ canals being filled with silt and weeds was further confirmation, he added, of major changes in upstream farming practices.

Mr. Courey next referred to the evidence which was relevant to the second ground of Section 76 “circumstances have arisen”

(a) The first circumstance was the change in assessment practice over the last 75 years. Mr. Smart clearly stated that in his opinion the decision not to assess upstream lands made by Mr. Baird was not in keeping with modern assessment practice.

(b) The second was the very substantial alterations in the entire system made after the ravages of Hurricane Hazel at which time the berms were removed and canals widened and deepened.

(c) Thirdly there was public safety considerations which demand that the highways located on the dykes be improved and that protective barriers be erected.

(d) Fourthly it appeared that the Ministry of Transportation and Communication was prepared to assist in funding with respect to this aspect.

(e) Fifthly, there was a major flood protection concern and funding available. However the programme had been put on hold until the issue of upstream assessment was resolved.

(f) Sixthly there was a commitment to improve the bridges and other structures by the Municipalities.

Mr. Courey advised that the municipal Respondents, with the exception of the Town of New Tecumseth, had settled all issues except the legal issue of the appropriateness of the assessment of upstream lands. He advised that in his opinion the Town of New Tecumseth could not represent the assessed ratepayers in Tecumseth because they had earlier joined in an application to set aside a previous Order arguing that they could not and would not represent individual ratepayers.

Mr. Courey further argued that the request by Counsel for the Town of New Tecumseth that the assessment in New Tecumseth be capped at $10.00 was in the circumstances unreasonable and was not in keeping with the responsibilities of the Drainage Engineer pursuant to the terms of the Drainage Act, particularly Section 7. He advised that the Holland River Municipal Drain had already set a precedent in paying a fixed sum to the Holland Marsh Drainage System for the outlet utilized. Mr. Courey noted that the Holland River Drainage Report assessed all lands, whether they were riparian or not, and argued that the one time payment was only valid for the term of that Report.

With respect to the legal issue of the assessment of riparian owners, which issue was raised by Counsel for the Town of New Tecumseth, Mr. Courey submitted that Section 23 of the Drainage Act as set out hereafter did not provide for the exclusion of riparian owners. He quoted the Section as follows:

“(1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.

(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.

(3) The assessment for outlet liability and injuring liability provided for in subsections (1) and (2) shall be based upon the volume and rate of flow of the water artificially caused to flow upon the injured land or road or into the drainage works from the lands and roads liable for such assessments.”

Mr. Courey proceeded to argue that even the Common Law did not exempt riparian owners. Mr. Courey cited the Supreme Court case of Groat v City of Edmonton 1928 S.C. Reports at page 522. In that case the City of Edmonton discharged a storm sewer into a natural watercourse. Anglin C.J.C stated “The Common Law right for a riparian owner to drain his land into a natural stream affords no defence to an action for polluting the water in the stream; pollution is always unlawful and in itself constitutes a nuisance.”

Mr Courey proceeded to further quote the Common Law case of Scarborough Golf and Country Club v City of Scarborough a High Court of Ontario Decision of 1986 reported in 55 O.R.(2d) at page 193. Once again in this case the City of Scarborough had established an outlet for a storm sewer into a natural watercourse. In a lengthy decision Cromarty J. stated: “The case law is of some assistance here as well. ““Reasonable use”” in the context of drainage operations of an upper riparian has been defined by the Ontario Court of Appeal in McGillvray v Township of Lochiel (1904), 8 O.L.R. 446 in which Garrow J.A. quoted with approval at page 449 from the Decision of Miller v Laubach (1864) 47 PA p 154 as follows:

“No doubt the owner of lands through which a stream flows may increase ““volume of water by bringing into it without any liability to damages to a lower owner. He must abide the contingency of increase of emission of the flow in the channel of the stream because the upper owner has the right to all the advantage of drainage or irrigation reasonably used which the stream may give him”.

He continued;

““To the same effect is the recent decision by the Court in Re: Elma and Wallace (1903) 2 0.W.R. 198 and what is a reasonable use is defined in McCormack v. Horan (1980) 81 N.Y. as a use up to the capacity of the banks of the stream.””

The Golf Course was found liable for wilful damage and nuisance.

Mr. Courey therefore concluded that at Common Law that riparian owners had the right to discharge their own water, (e.g. not collected from other properties) into a natural water course, providing such water did not overload the bank of the water course so as to overflow the banks and providing it was pollution free. In such a case at Common Law there was no liability arising with respect to downstream owners. The American cases appear to focus on the principle of reasonable use of the natural water course as an outlet.

Mr. Courey advised that Statute Law in the form of the Drainage Act introduced considerable changes and sought to substantially alter the Common Law. He referred to a case of Judge Clunis in 1976 namely Bayius v. Township of Flamborough reported 1975 CanLII 777 (ON HCJ), 9 O.R. (2d) 66, noting he was the acting Referee at the time where he said:

“I emphasize that in my view it is clear beyond question that the Common Law rights of a riparian owner do not arise in respect of municipal drains”.

Mr. Courey referred to a series of court decisions dealing with both Statute and Common Law rights which imposed liability on riparian owners. In the case of Tilbury East v. Raleigh Township (1979) O.J 546, Mr. Justice Trainor of the Ontario Supreme Court, ordered the Township of Raleigh to pay the estimate of the costs of dykes and banks stating “A duty exists in Common Law and by Statute to prevent flooding of downstream lands. The duty on the Defendant is to provide a sufficient outlet for its drainage water in order that the Plaintiffs’ land is not injured.”

In the oft quoted Court of Appeal case of the Township of Huntley v the Township of Marsh 1909 0.W.N. 190 Garrow J A stated:

“The size of the area is of little consequence in considering whether or not the assessment is one which might lawfully be made. Drainage water must go not merely to an outlet by means of which it satisfactorily escapes from the lands which are being drained, but to a sufficient outlet, which is defined in Section 2, subsection 10, means that ‘safe discharge of water at a point where it will do no injury to the lands and roads’ and Section 3, subsection 4 as it now stands, shows that it is not sufficient in order to escape from liability simply to show that the first discharge was into a ‘swale, ravine, creek or water course’. See Young v Tucker 26 A.R. 162; Township of Orford v Township of Howard, 27 A.R. 223 re Township of Elma v Township of Wallace, 2 O.W.R. 198.

There must, of course appear to be a reasonable connection between the source of the injurious water and the outlet in question and as such connections establish the legal right to assess under the statute however large the area seems to follow.”

Mr. Courey argued that this Court of Appeal case which he submitted clearly defined the law of Ontario had great relevance to the current proceeding inasmuch as a large watershed was involved and it clearly found that upstream lands were assessable even if they were some distance from the downstream injured lands. No distinction was made of riparian lands. Reference was also made to the Court of Appeal decision of Young v Tucker reported in Ontario Appeal Reports Volume 26 at 162. This decision reversed the decision of the Drainage Referee of the day and the head note reads as follows:

“While the owner of land has an undoubted right to drain it in the ordinary course of husbandry, he must take care that any water collected by his drains is carried to a sufficient outlet, if the water is drained into a pond which is not large enough to hold the additional volume of water thus brought to it, he is liable in damages to a person whose land is flooded by water overflowing from such pond.”

This case duly assessed riparian owners, pursuant to the Drainage Act at that time in circumstances where a sufficient physical outlet was found in a pond but the discharge from the pond was found to cause injury to lands downstream.

Mr. Courey made reference to the Belzner et al v Town of Dunville released by Referee Johnston 1992 and the subsequent case by the same Referee R. Hodson et al v Township of Mariposa dated 1993 in which it was found that riparian owners were not assessable. Mr. Courey indicated that these cases could be distinguished because the assessment was described as outlet assessment wherein it ought to have been described as injuring liability.

Mr. Courey then referred to Section 23 of the Drainage Act, Subsections 1, 2 and 3 previously quoted herein. He stated that Section 23 is the basis for outlet and injuring liability assessment and no reference whatsoever is made to any exception to be granted to riparian owners.

Mr. Courey then referred to the case of Orford v Aldborough C.A. 1912. 107. In this case, the Court of Appeal upheld the decision of Referee Henderson.

Garrow J.A. went on to state the opinion of the Court as follows:

“It is not in my opinion necessary in this case to discuss the general question of the riparian right of drainage into natural water courses for the purpose of agriculture...Fleming Creek and Kintire Creek, both, although small, entitled in strictness to be called watercourses, long ago lost their natural condition and became part of an artificial drainage system created under the Drainage Laws of the Province. The law permits that to be done and when it is done part of the system which was once a natural water course is entitled to no particular immunity, under the law, over the other parts which appear to be artificial. The whole must operate so as to discharge the waters which it gathers at a proper and sufficient outlet. The law at least aims at affording complete relief from the common enemy and not merely a nominal or paper relief or the relief of one section at the expense of another.”

Mr. Courey proceeded to refer to the work of Frank B. Proctor, LL.B. a leading drainage practitioner in the Province in the early decades of this century who wrote the singular comprehensive text on drainage. His text entitled The Drainage Acts of Ontario referring to the Judgment of the Court of Appeal in the Township of Orford v Township of Howard 1927 A.R. at 223

“The judgment of the Court was delivered by Lester J.A. who said ‘the legislature in enacting these subdivisions (Subsections 3 and 4) had in view the cases of Orford v. Howard and Harwich v Raleigh and intended to alter and extend the Section so as to impose upon lands in the municipality from which water has by any means been caused to flow upon and injure lands in another municipality, a liability to contribute to the costs of a drainage works such as the one in question here, without regard to whether such water has been caused to flow upon and injure such lands, either immediately or by means of another drain or by means of another natural watercourse into which it has been conveyed and discharged for the purpose of being carried away. The language of the subsection is clear and unambiguous. In plain terms declares that if by any means water is caused to flow upon and injure lands of another municipality the lands from which the water is caused to flow may be assessed, etc.”

Mr. Courey advised that most drainage practitioners and most established municipal drains in the Province assess upstream lands even when there is an intervening watercourse. He referred to a respected and long term practitioner, Mr. Gibson, who answered such a question at the Drainage Conference in April of 1979. He stated at page 82 of the proceedings:

“I personally have assessed them. I see no difference in your having a group of tributary municipal drains in the upper part of a watershed going into a natural watercourse and some two or three miles down you do a work of improvement, and you place your assessment over the entire watershed, because of the bridge sizes you must construct for, are based on the total watershed, not just the lower end of it.”

Mr. Courey concluded by stating that it was necessary to bring certainty to the law of Ontario in this matter.

SUBMISSIONS OF MS. MATTERA

Ms. Mattera advised the Referee that she was Counsel for all the Respondent Municipalities, with the exception of Tecumseth. She indicated that all issues had been settled with the exception of the legal issue, namely the assessment of upstream owners beyond the boundaries of the Holland Marsh Drainage Scheme.

Ms. Mattera indicated that the first legal issue to consider was whether or not the “additional lands” could be assessed under a Section 76 Report. She stated that in her opinion additional lands could not be assessed whether they were riparian lands or not. She stated that it was incumbent upon Bradford to demonstrate changed conditions and because the Drainage Act was a Taxing Statute any uncertainty ought to be resolved in the interest of the taxpayers. She advised that in her opinion the upstream lands had not been assessed in the original Drainage Report of 1924 because it was a Reclamation Scheme rather than a Drainage Scheme in essence. She argued that the ratepayers had limited rights under Section 76 as opposed to a Section 4 Petition Drain. In a Section 4 Petition, the procedure provides for many avenues of appeal at various stages of the process. Under Section 76, the rights of appeal were more limited.

She further advised that Section 76 provided for a right to vary the existing assessment, not to add and extend the numbers of assessed ratepayers. She repeated that because new taxation was being imposed, any uncertainty in the interpretation of the Statute should be decided in favour of the ratepayer.

Ms. Mattera then went on to make her second point, namely that if Section 76 could properly be used to expand the area of assessment a pre condition of “Conditions Have Changed or Circumstances Have Arisen” had to be proven.

She stated that the first hurdle to be overcome by Bradford was to establish that changes had taken place so as to disprove the wisdom of the original Engineer, Mr. Baird, in not assessing the upstream owners. She argued that the changes referred to by the Drainage Engineer, Mr. Smart, were subject to challenge such as (1) the fact that most of the land was cleared and put in farming before 1924; (2) most of the rapid urbanization had occurred in areas other than within the watershed; and (3) while there had been an increase in the number of highways, the engineer had failed to give specific calculations of increased run‑off.

With respect to the changes in farm practices through cash crop farming, she added that there was no expert evidence given with respect to the impact of such changes.

With respect to the siltation of the canals, she advised that it was a continuous process and did not represent a sudden change in circumstances. Ms. Mattera argued that the problems may have arisen because of inadequate maintenance of the canals. She noted that the Engineer had indicated that if grants are not available that a significantly smaller project could be pursued and that the road work contemplated could be done in any event by the Municipalities and the Ministry.

Ms. Mattera argued that the Drainage Act was not remedial legislation, but rather a Taxing Statute. She noted that the case of Eurig Estate (re) 1998 S.C.C. states that the criteria of Taxation Statutes was set out, namely (a) enforced by law; and (b) authorized by a legislature; (c) collected by a public body; (d) used for public purpose. She maintained that all four criteria were fulfilled in the case of the Drainage Act.

She also referred to Canada v. The Johns Manville case S.C.C. 1984 which she claims stands for the proposition that where a taxing statute was not explicit, any doubt must be resolved in favour of the taxpayer. She argued that Section 76 was not clear as to whether or not the variation should be limited to existing assessed owners or if it permitted an extension to include new assessed owners.

With respect to the issue of riparian owners, she advised that the Municipalities she represented made no distinction with respect to riparian owners. She further indicated that she agreed with the argument of Mr. Courey that if upstream owners are assessable, that riparian owners ought to be included in the assessment. She advised that she could not envisage how, practically, riparian owners in this large watershed could be identified. She added the caution that if they were excluded from assessment it would probably result in political difficulties.

She concluded by advising that most issues had been settled but that she was appearing as a friend of the Court to argue the legal issue of the assessability of upstream owners.

SUBMISSIONS OF WILLIAM TURVILLE, Q.C.

Mr. Turville advised the Referee that in his opinion the Drainage Engineer had not followed the requirements of the Drainage Act in the Drainage Report. He advised that Section 21 of the Drainage Act required separate columns to be shown.

“Section 21 ‑ The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefor.”

He argued that the Engineer had failed to set out separate columns in the Report. Mr. Turville further stated that the Engineer had not complied with Section 37 of the Act which he quoted as follows:

“Section 37 ‑ The engineer in the report shall list separately the lands in each municipality that are assessed for a drainage works and shall indicate the assessment for the cost of lateral drains and the assessment of lands that are not agricultural lands.”

He indicated that in his opinion these Sections were mandatory and that an owner had a right to know why he was assessed and the reason. He submitted the Drainage Report should therefore be set aside.

Mr. Turville further advised that he adopted the argument of Ms. Mattera with respect to the application of Section 76 of the Act.

Mr. Turville proceeded to argue that riparian owners ought not be assessed. He quoted the Suter Drain case referred to previously as an authority.

Mr. Turville also referred to the Common Law rights of riparian owners as defined in the Scarborough and Golf Club case referred to previously. He allowed that Section 23 of the Act was vague and required clarification. He argued that the $1,250.00 paid by the Holland River Drainage Scheme in 1931 represented payment for all time and relieved ratepayers in that system from further assessment. Mr. Turville argued that the Drainage Act was not a code of the law relating to Drainage and that if the Common Law was to be varied the Statute should be very clear as to its intent. He quoted the House of Lords Decision Bank of England v The Vagliano Brothers, Appeal Court 1981 page 144 to support this proposition.

Mr. Turville advised that most of the ratepayers in New Tecumseth were farmers and the assessment would represent a very substantial financial burden. He indicated that in his opinion the costs could escalate to considerably more than the $10.00 per acre suggested by Mr. Smart. He requested that the Drainage Referee cap the assessment in the Municipality of New Tecumseth for each ratepayer at the maximum sum of $10.00. He noted that New Tecumseth represented only 2.50 of the upstream lands and suggested that in the circumstances all upstream lands should be capped at $10.00 per acre.

FINDINGS OF FACT AND LAW

The first issue which the Referee wishes to address is that of the appropriateness of the Section 76 assessment report. This was an issue raised by Counsel for the Respondents and on which she placed major emphasis. One might assume that the Agricultural Food and Rural Affairs Appeal Tribunal addressed this issue in their Order of January 30 2001. It might be further assumed that the Minutes of Settlement referred to in the Tribunal Order reflected the consent of the Respondents who were parties to that Order and as to the appropriateness of that Order. Without relying on the above factors, I have no hesitation in stating that the evidence as presented to me by the Drainage Engineer, Ken Smart, P.Eng., and the Drainage Superintendent, Mr. Janse, which I find to be credible, supports my finding that the conditions necessary to support the Section 76 Report namely “conditions have changes or circumstances have arisen such as to justify a variation of the assessment” have been satisfied. This watershed embraces a part of Ontario that has enjoyed rapid growth and development in all aspects, including urban, infrastructure, and rural. I am satisfied on the evidence that there has been a dynamic increase in urban development as illustrated by the Drainage Superintendent’s submissions relating to the remarkable increase in building permits for structures within his Township.

The developments in the road system, particularly Highways 400 and 9 which criss‑cross this watershed represent prodigious changes in drainage patterns. The changes in agricultural land use are so obvious that judicial notice of it would be logical. The change from a cattle based economy to a cash crop economy in agriculture mirrors changes that occurred in Central and South Western Ontario. The cattle based economy relied substantially upon pastures and forage production which did not require annual soil cultivation. Modern farming technology presently encourages annual cultivation of all available acres; and fields extend from road ditch to road ditch. In addition, cash crop farming demands systematic drainage which has resulted in vast increases in tile drainage, municipal drains and improved water courses. The extensive siltation of the canals in the Holland Marsh system, in some places 8 feet deep, is a natural predictable outcome.

In addition to the above mentioned “conditions have changed”, “circumstances have arisen” include a public policy component. Public authorities arranging from the host Municipality to the Conservation Authority, the County and the Provincial Government all, according to the uncontradicted evidence presented, have at stake in the outcome of this proceeding. The host Municipality was legally obliged to commence repairs to a Drainage System which is much more than a conventional drainage system and which embraces the interests of not only thousands of residents, but of Government Authorities at all levels. The public safety factors are foremost and involve potential serious flooding, a risk of highway accidents resulting from faulty barriers on the dyke roads as well as inadequate bridge structures. Progress is stalled until the assessment puzzle is resolved. I therefore also find that “circumstances have arisen” which require that the issue of assessment be immediately addressed. I therefore find that the conditions required to justify a Section 76 Report have clearly been satisfied.

The second issue raised by Ms. Mattera related to the scope of the Drainage Engineer’s authority in varying the assessment pursuant to a Section 76 Report and more particularly as to whether the Engineer was justified in extending geographically the area assessed to include new properties. She submitted that because, in her opinion, the Drainage Act was a Taxing Statute, that any uncertainty in the wording of the Legislation should be interpreted in favour of the taxpayer and that therefore new owners should not be included. I cannot agree with the submissions of Counsel for the Respondents for several reasons.

First, I suspect it fails to meet the requirements of a taxing statute as specified in the Eurig Estate case referred to previously in that the assessments collected are not used for a public purpose. Under the Drainage Act the funds collected must be used exclusively for the construction or repair of a drain to serve the interest of local property owners. Furthermore, the Courts have consistently held that the Drainage Act is remedial legislation to be given a liberal interpretation. The case of re: Hunter and Toronto (1904) 8 0 L R 52 (CA) long ago classified the Drainage Act as remedial stating it “should receive such large and liberal construction as would best attain the object of enactment”. It is with that direction in mind that I find that a liberal interpretation of Section 76 (1) of the Drainage Act does permit an Engineer to include a new geographical area and new properties in the process of varying the assessment. I further rely on the words in the Section “if all the lands and roads assessed or intended to be assessed” as expressly giving justification for the assessment of lands intended to be assessed being new properties as opposed to lands and roads already assessed. I therefore find that the Drainage Engineer did not contravene the terms of Section 76 (1) in extending the area assessed geographically to include new properties.

Ms. Mattera went on to indicate that the extension of assessment into a new geographical area involving new owners, pursuant to Section 76 constituted a breach of natural justice. She indicated that if these new owners had been assessed pursuant to Section 4 that they would have many more rights of appeal and consideration. She noted that Section 76 (2) did limit the rights of appeal. In considering this argument, the Referee is mindful of the fact that the Respondents consented to the Procedural Orders previously referred to which provided for notice and procedures for the consideration of the Report and the Assessment of all proposed assessed owners. The terms of that Procedural Order provided for an appeal to be made to the Referee. The Referee notes that during the Hearing on the 27^th day of May, 2002, the Referee required that the Hearing be adjourned to permit all Appellants who had filed Appeals to be directly contacted and informed of the time and the place provided for each and every appeal to be heard. I am therefore satisfied that sufficient efforts have been made to ensure that the potential assessed owners were given every opportunity to appeal, review and consider the Report. In the circumstances, therefore, I am satisfied that there was not a breach of natural justice in the Procedure adopted for the approval of the Section 76 Report.

Moving to the next issue of major consideration, namely propriety of the assessment of the upstream lands, beyond the limits of those lands assessed in the original 1924 Drainage Report. The upstream lands assessed in the Section 76 Drainage Report were not assessed benefit assessment, but rather only outlet liability or injuring liability. The authority for such assessment is found in Section 23 (1) of the Drainage Act.

Section 23 (1) of the Drainage Act reads as follows:

“Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability”.

The words of Section 23 (1) in my opinion could not be more explicit. These words, or similar words, have been incorporated in Drainage Legislation for approximately one full century. During that time this wording has been repeated in various revisions of the Act without significant amendment. The Section reflects and incorporate the decisions of Senior Courts and of the Drainage Referees made in the early part of the last century. Historically, both municipalities and particularly riparian owners have attempted to use the Common Law to protect them from assessment. This introduction of Common Law principles has consistently led to confusion in the application of Drainage Law. It is important to recall that the Drainage Act was required because of the failure of the Common Law to deal with modern drainage requirements. The Common Law was developed over centuries when water power was paramount, when transportation by water was primary and accordingly when riparian rights were of major significance. The total inadequacy of the Common Law with respect to modern drainage requirements is illustrated by the fact that the riparian owner had full rights of drainage into a natural watercourse, while his immediate non‑riparian owner had no rights whatsoever. Thankfully the Drainage Act provided a means for giving drainage to all landowners whether they were riparian or non riparian consistent with the needs of modern agriculture.

In my experience, much of the confusion with respect to the application principles of assessment in Drainage Law arises from the total failure to appreciate that the Common Law is replaced by and subject to Statute Law. In the words of the renowned drainage scholar, Frank B. Proctor, LL.B., in his text on the Drainage Act we find the following:

“The plain words of the Act must govern. In the drainage cases which have come before the various Courts of the Province having cognizance of such matters for adjudication, certain rules of construction have been formulated by the Courts, as application has required, to assist in a uniform interpretation of various provisions of the Act. These Rules have been, for the most part, in accordance with or supplementary to the ordinary Rules governing the construction of Statute generally. Thus it has been cited that where the wording of the Act is clear, the sole duty of the Court is to enforce the appropriate provisions of the Act. In Turtle v .Township of Euphemia (1900) 31 O.R. 404 Meredith J. said at page 407 “Now whatever notions I might have of the necessity for, or wisdom of, that which the legislature in plain words provide, I must give effect to it. I have no right to adjudicate away any part of an enactment because it might seem to me to be needless ... it is surely but right to give the persons who made this law credit for both knowing and saying what they mean, and saying no more than they meant”

As I have said before the words of Section 23 are clear, explicit and intentionally broad enough to cover each and every circumstance of drainage assessment.

In the subject case it should be noted that there was no objection made by any of the Parties to the definition of the watershed as provided in the Report nor to the Report’s proposition that the Holland Marsh Drainage Scheme was the natural outlet for all waters collected by the watershed. Therefore, the only issue to be determined is whether the upstream owners were properly assessed in the 1976 Report pursuant to Section 23 of the Drainage Act.

Section 23 of the Act states that “lands and roads that use the drainage work as an outlet ... directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.” It is hard to imagine wording being more comprehensive, more precise and less capable of misunderstanding. Consequently, it is the opinion of this Court that the upstream lands proposed to be assessed by this Report and which lie within the designated watershed may be assessed for outlet liability. It is true that the flows may be indirect through the medium of road ditches, municipal drains, watercourses or whatever, but eventually the outlet is the Holland Marsh Drainage Scheme. The most remarkable feature of this Scheme is that the dyke canals constructed on either side of the internal lands appear to be maintained mostly for protection against and as an outlet for water from upstream lands. Accordingly it is not only proper in law, but proper in terms of equity that the upstream owners share some of the cost of maintaining this outlet.

The Case Law also supports the assessability of the upstream lands. The case of Tilbury East v. Raleigh Township previously referred to stated “A duty exists in Common Law and by Statute to prevent flooding of downstream lands. The duty on the Defendant is to provide a sufficient outlet for its drainage water in order that the Plaintiff’s land is not injured.”

Mr. Justice Garrow, who was central to so many drainage decisions in the early part of the last Century, speaking on behalf of the Court of Appeal, stated

“The size of the area is of little consequence when considering whether or not the assessment is one which might lawfully be made. Drainage water must go not merely to an outlet by means of which it satisfactorily escapes from the lands which are being drained to a sufficient outlet which is defined in Section 2 (10) means a safe discharge of water at a point where it will do no injury to the lands and roads and Section 3 (4) as it now stands shows that it is simply not sufficient in order to escape from liability simply to show that the first discharge was into a swale, ravine, creek or watercourse”.

That Court referred to the cases of Young v Tucker, Township or Orford v Township of Howard and the Township of Elma v Township of Wallace, all of which support the above mentioned principle. It thus appears that the cases have consistently supported the assessment of upstream lands in circumstances where downstream lands could be subject to injury or damage from upstream flows.

Mr. Turville submitted that riparian owners ought to be exempt from assessment. He relied on the Decision of Referee Johnston in Belzner v Town of Dunnville 1992 and Hudson et al v Township of Mariposa 1993.

Ms. Mattera clearly stated that she did not support Mr. Turville in this submission and wondered how practically riparian owners could be distinguished and identified in such a complex and large watershed. It may be, as Mr. Courey submitted, that the two Decisions referred to immediately made by the Drainage Referee can be distinguished on the basis that the assessment described was outlet assessment, rather than injuring liability.

If they cannot be distinguished on that grounds, then I must disagree with their conclusion as to the Law. The right of riparian owners at Common Law to discharge their water into a natural watercourse is well established. However, even that right has been modified considerably as illustrated in the cases previously referred to, namely Groat v City of Edmonton and Scarborough Golf v City of Scarborough. As Judge Clunis clearly stated and as previously quoted, the Common Law rights of riparian owners cannot apply in the case of municipal drains. Once again, Mr. Justice Garrow in the case of Orford v Aldborough 1912, CA, 107 stated clearly Ontario Law:

It is thus clear beyond all doubt that there is no exception in terms of assessment for riparian owners under the terms of the Ontario Drainage Act. If such were the case, not only would it be highly inequitable in result, but it would be almost impossible in application. It would also be contrary to the general practice of drainage engineers which I have witnessed in my twenty‑five years association with the Drainage Act in the Province of Ontario.

This Court therefore has no difficulty in deciding that the Drainage Act of Ontario doesn’t provide for an exemption for riparian owners with respect to drainage assessment and that therefore their assessment in the current Report is correct and in compliance with the requirements of the Act.

Mr. Turville submitted that the Engineer had failed to comply with Section 21 of the Drainage Act in failing to have separate columns for benefit outlet and injuring liability assessment and the sums assessed against each parcel of land. Mr. Smart replied in his cross examination that the practice of the profession in providing a maintenance schedule was not to provide columns separately for benefit outlet assessment or injuring liability. In this regard, he stated that the profession was guided by Section 74 of the Act that provides for assessment for maintenance to be done on the basis of the current by‑law which, in this case, would be the 1991 Repair By‑Law with the costs to be levied in proportion to the assessment in that By‑Law. As a consequence maintenance assessment is in proportion and is based on a previous by‑law. Further, in this case, there was no assessment of benefit to any upstream owner. Accordingly, the Referee finds that Mr. Smart was following the practice of the profession in the Province of Ontario and that in providing a new Maintenance and Repair Assessment Schedule pursuant to Section 76 as he did, he was not in conflict with Section 21 of the Act. The Referee relied also on Section 38 of the Act which accords considerable discretion to a Drainage Engineer in maintenance assessment.

With respect to Section 37 of the Act, it appears that Mr. Smart did list separately the lands in each municipality and that it was not necessary to indicate the assessment for lateral drains inasmuch as there were no lateral drains present. It appears he neglected to designate which lands were not agricultural. Failure to designate non agricultural lands is not a fundamental failing going to the root of assessment, but merely is descriptive in nature. It clearly does not justify the setting aside of the Report.

Finally, Mr. Turville submitted that the assessment of the owners in the Municipality of New Tecumseth would present a hardship and requested that the assessment be capped at $10.00. The Referee, though sympathetic with the request, could not acquiesce to the same without causing gross inequity in the structure of assessment.

The Engineer has quite correctly assessed all parties using the same criteria for assessment, namely land use, the nature of the soil, the slope and configuration of topography and the size of the parcel. All assessed owners were treated alike and in the course of the Hearing no significant challenge was made with respect to the Engineer’s method of assessment, other than with respect to the legal issues previously discussed. I have therefore no difficulty in confirming the assessment method and the assessments made by the Drainage Engineer with respect to the schedule of assessment together with the amendments recommended by the Drainage Engineer in this proceeding.

I find it necessary to dismiss the Appeal of William Gray for whom I have sympathy, but whose assessment, being the sum of $9.00, I find to be reasonable in the circumstances.

With respect to Mr. Leach, appearing for the Conservation Authority, I find it necessary to dismiss the Appeals, other than the two recommended amendments referred to hereafter. Mr. Smart was correct in assessing all lands within the watershed because it can be assumed that in this watershed no land remains as in its original state of nature. All lands, including Conservation lands have been modified to a degree, however slight. Therefore some measure of assessment must be made, but with respect to Conservation lands the assessment ought to be minor indeed unless it has been developed for some purpose other than for Conservation purposes. Mr. Leach on behalf of the Conservation Authority took a responsible position in this matter and for that I congratulate him.

This Report was an extremely complex and herculean undertaking and all parties who participated deserve congratulations. The Holland Marsh Scheme in its original conception, development and life history has been a brilliant success story and exists as a jewel in the agricultural mosaic of this Province.

ORDER

The Appeals of the Respondents, namely the Township of King, the Township of East Gwillimbury, the Town of Caledon, the Town of Newmarket and the Town of New Tecumseth are hereby dismissed.

The Appeals of the Appellants as listed in the Style of Cause are hereby dismissed with the exception of the Parties specifically referred to on Page 13 of this Decision, all of which amendments as recommended by the Drainage Referee and as set forth on Pages 13 and 14 are hereby approved.

The Drainage Engineer, Ken Smart, P.Eng. is to provide forthwith to each Respondent Municipality and to the Applicant proper identification of all non‑agricultural lands in the watershed.

With respect to the issue of costs, the Referee is prepared to receive submissions in the event that the Parties are unable to reach agreement ‑ at a date to be arranged with the consent of the Applicant and Respondents.

DATED: October 11 2002

Delbert A. O’Brien Q.C. Juris D.

Ontario Drainage Referee

Bradford-West Gwillimbury (Town) v King (Town), 2002 ONDR 2

Case Summary