PLAINTIFF

‑AND-

THE CORPORATION OF THE TOWNSHIP OF RAMARA,

MCCARTHY LAND IMPROVEMENT, LAFARGE CANADA INC.,

IKE MEYERS AND JOSEPH HARRIGAN

DEFENDANTS

D E C I S I O N

This matter was to continue before the Ontario Drainage Referee on the 6^th day of May, 2002 in the Superior Court House in Barrie, Ontario dealing with the issue of damages. At the commencement of the Hearing, Michael M. Miller, Counsel for the Township of Ramara, advised that all Parties to the damage claims had settled all issues with respect to the claims for damages. He submitted to the Referee that he had been instructed by the Parties to the damage claims to advise the Referee that the assessment in the amount of $35,000.00 net allocated in the Drainage Report by the Drainage Engineer, Ken Smart, P.Eng., for the cost of restorative work with respect to “the private works of 1997” be assigned and assessed to the four parties; namely Joseph Harrigan, Ike Meyers, Lafarge Canada Inc and the Township of Ramara as originally provided. Mr. Miller allowed that, in his opinion, settlement of the damage claim had been made possible with considerable savings in litigation costs (which cost would have incurred if the matter had proceeded in the regular Superior Court with discoveries, pre‑trials, etc.) by having a Drainage Report prepared prior to the completion of the damage proceedings providing remedies and allocating costs, including the costs of restorative measures.

Mr. Miller further advised the Referee that he wished to make a submission with respect to legal costs and disbursements, which the Township of Ramara had incurred in the Hearings associated with the preparation of the Drainage Report.

The only matter therefore remaining to be determined by the Drainage Referee was the issue of assessments and allowances as assigned in the original Drainage Report of May 15, 2001 with respect to the McNabb Drain as amended, most recently by Addendum dated December 10^th, 2001.

HISTORY

For a better understanding of this Decision, the history of the McNabb Drain, as contained in the Referee’s Decision of December 5, 2001, will be repeated herein.

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

CURRENT STATUS OF THE DRAIN:

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

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

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

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

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

THE WATERSHED:

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

CONSTRUCTION WORK DONE IN 1997

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

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

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

DEVELOPMENT OF DRAINAGE REPORT:

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

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

The OTTHYMO Modelling indicated that the flows during a 2 year storm at the Ramara Road 47 culvert immediately upstream of the Dabis property would have been 2.23 cubic metres per second pre‑1997 in a properly maintained drain After this project with storm water management 2 05 cms. Although it is not normal to design a project of this nature for a 100 year storm, the model disclosed that at the Ramara Road 47 culvert in the event of a 100 year storm in 1903 the McNabb flow would have been 6.91 CMS just before 1997 (maintained), after this project with storm water management the flow would have been 7.58 CMS.

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

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

RECOMMENDATIONS FOR CONSTRUCTION MADE BY DRAINAGE ENGINEER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BENEFITS TO OWNERS EXPECTED FROM THE PROPOSED WORKS

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

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

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

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

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

HEARING TO CONSE)ER THE REPORT

The Hearing commenced on the 26^th day of June, 2001, in the Court House in Barrie, Ontario before the Drainage Referee for the purpose of receiving evidence and submissions with respect to the design of the Drainage Project as outlined in the Report dated May 15, 2001.”

As a result of that Hearing the Drainage Engineer, K. A. Smart, P.Eng., provided amendments to the Report dated the 27^th day of July 2001, which amending features were circulated to all parties by the Solicitor for the Township of Ramara. At the request of the Drainage Referee submissions were provided by Legal Counsel for the Parties by the 17^th day of August, 2001.

In response to the recommendation of Mr. Chris Strand of the Federal Department of Fisheries and Oceans, and various Parties, the following amendments were proposed:

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

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

In response to the requests of Messrs. Kaiser‑Reid and Dabis the following changes were made:

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

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

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

In response to the request of Mr. Scholtz, Counsel for Lafarge Canada Inc. and Standard Industries Ltd., further amendments were proposed and recommended and a further Hearing conducted on the first and second days of November 2001. The final amending recommendations with respect to design and construction were made by Ken Smart, P.Eng. He proposed as follows:

(a) that the proposed bottom elevation for the storm water management facility at the Township of Ramara Industrial Park site be revised from 231.30 to 231.45 metres;

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

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

At the further request of Counsel for Lafarge Canada Inc. an additional amendment was made with respect to Drain D, returning the grade of that Drain to the dimensions as specified originally in the May 15 2001 Report. The Referee noted:

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

As a result of the Hearing on the first and second days of November, 2001, the Referee made a final Order dated December 5, 2001, ordering that all of the above, changes and amendments be incorporated into the Drainage Report of May 15 2001 and that the Municipality adopt said wording in the Provisional By‑Law.

A further Hearing with respect to Assessment and allowances was conducted on the 18^th and 19^th days of December, 2001. Mr. Ken Smart, P.Eng., the appointed Drainage Engineer, filed his Final Schedule of Assessment, which is attached hereto as Schedule “B”. It was noted that the total assessments amounted to approximately $431,000.00, of which approximately $90,000.00 is assessed to roads. Approximately $35,000.00 represented assessments relating to the cost of the “restorative work” which would not be encountered in a normal drainage works. Of the remaining approximately $300,000.00 assessed to the landowners, about 50% of that assessment or approximately $150,000.00 represented the net assessment after grants and allowances. Of the $150,000.00 net assessment remaining, approximately 50% of it was paid by Corporations, leaving approximately $75,000.00 to be paid by individual landowners.

Mr. Smart reviewed the various assessments, indicating that he had assessed the downstream owner, Kaiser‑Reid, both benefit and outlet assessment, which totalled approximately $7,000.00, notwithstanding that the municipal drain as proposed no longer extended through their property and further that they were on the downstream end at the outlet. As far as benefit assessment was concerned, Mr. Smart maintained that the Parties were within the watershed and liable to be assessed for benefit, pursuant to Section 22 of the Drainage Act because their lands did benefit in that they were more easily maintained as a result of the construction, being protected from excess flooding. He maintained that because the downstream owners operated a commercial business, the security they would enjoy by the limitation in flows provided by both the upstream control device in the old Grand Trunk Railway culvert and by the upstream storm water management facilities, resulted in a major benefit. Such a benefit served to enhance the value of their commercial properties.

With respect to outlet assessment, Mr. Smart quoted Section 23 (1) of the Drainage Act stating that their lands used the outlet

“which was an improved outlet provided directly or indirectly through the medium of any other drainage works.”

In this case he maintained they had a greatly improved outlet because of the control of flows provided directly through the medium of the upstream storm water management facilities.

Mr. Malen, on behalf of the Kaiser-Reid operations, submitted that as downstream owners they should not be liable for either benefit or outlet liability assessments. The basis of his submissions related to the termination of the Drain upstream, at the request of Kaiser‑Reid. He further argued that they should not be assessed for maintenance inasmuch as even cut off assessment does not result in a maintenance assessment.

The Drainage Referee considered the submissions and agreed with the Drainage Engineer, Mr. Smart, that the Kaiser‑Reid property received a major benefit from this Project. They were given the privilege of withdrawing their property from the Drainage Project after considerable work had been done on their property and upstream. This interim work was done for the protection of their property. However, the major benefit received by the Kaiser‑Reid owners was provided by the very special design of the entire Drainage Project, crafted to ensure that they would only receive limited flows. In all there were three installations in the drain calculated to control downstream flows primarily for the benefit of the downstream owners and more particularly the Kaiser‑Reid property. Because they operate a commercial business used by the public, flow control is of much greater significance to them than would be the case in the average property. As a result a 1200 mm culvert in the old General Trunk Line remained intact to limit flows to less than that of a 2 year storm. Upstream a major storm water management facility was installed on the Standard Industries property with an enormous capacity far exceeding agricultural drainage requirements designed to function at the level of a 100 year storm. Further upstream a third facility, namely the Storm Water Management Facility on the Industrial Park site also served to control flows.

As a result of the above measures the Kaiser‑Reid property received substantial benefits from this scheme which greatly enhanced the market value of their commercial operation. Clearly they are assessable, pursuant to the provisions of Section 22 of the Drainage Act as receiving an increased value and a more easily maintained operation.

The Kaiser-Reid property is further quite properly assessed outlet liability pursuant to Section 23, in this case “the lands use an outlet improved indirectly through the medium of the drainage works” by reducing and limiting the flow”.

I therefore approve of the assessments with respect to the Kaiser‑Reid property and confirm the same, subject to the following amendment:

‑The Kaiser‑Reid and Dabis properties should not be included in the Schedule for maintenance and the Schedule must accordingly be so amended.

With respect to the Dabis property the same arguments which apply with respect to the KaiserReid property apply with the same significance. Mr. Dabis is to be commended for his special interest in the environment and for that reason he has a vital interest, to protect in controlling not only the flow of water, but the quality of water as it flows through his property. This Project, combining upstream cattle fencing, flow control devices and environmentally friendly storm water management facilities will enhance the value of the watercourse on his property.

The next upstream property is owned by Mr. Snodden who is a longtime farmer and who will receive significant benefits from this Project. He has enjoyed the benefits of significant allowances and grants so that his net assessment, being approximately $7,000.00, is tolerable in the circumstances.

The Robwildon property and the Chiu property benefit from these works by having the large ditches constructed across their property backfilled and restored to an original condition. The cost of this work, estimated at $20,000.00 is borne primarily by other owners with the result that that portion of the work, after grants and assessments, cost little or nothing to either of the owners. They are assessed, of course, both outlet and benefit, with respect to the balance of the Project. Their properties will be provided with significantly improved outlets which will increase the value of their properties. I have reviewed the submissions of Mr. Kussner with respect to their assessments, recognizing that the settlement of the damage claim has resolved the issue of the special assessment for restoration. I therefore approve and confirm the assessment on the Robwildon and Chiu properties.

The net assessment of two of the large upstream industries, Lafarge Construction Inc was $21,000.00 and that of Standard Industries, a net assessment of approximately $900.00. It should be noted that the net assessment of Standard Industries was minor because of the allowances granted reflecting the fact that the major storm water management facility was located on the Standard Industries’ property. Mr. Scholtz, acting for Lafarge and Standard Industries, in his submissions with respect to assessment challenged the special assessment assigned to Lafarge, namely $8,750.00, with respect to restoration cost resulting from the private 1997 work. However, that assessment aspect has been resolved by the settlement achieved by the Parties in the damage claim issue.

The second complaint made by Mr. Scholtz was with respect to the allowance granted per acre, namely $200 per acre for the 44 acres utilized in the storm water management facility. The Referee is in agreement with Counsel for Standard Industries Limited and believes that the acreage allowance should be increased by $150.00 per acre, the increase cost to be added to

the outlet assessment of the Drain and apportioned pro rata. The proposal that the entire cost of roadside ditch cleaning to the depth required by the municipal drain be charged to the Road Authority is not, in the circumstances, proper. The Road Authorities are under no obligation

to maintain roadside ditches for the purpose of draining adjacent lands and it would therefore it would be unfair to transfer such a burden to it.

Finally, the proposal that the storm water management facility on the Township Industrial Property be assessed only to the lands and roads that contribute water to the facility is not equitable. The major purpose of a storm water management facility is to protect downstream flows and is a benefit to downstream land owners who are not obligated to increase the

capacity of the drainage system adjacent to their properties. A storm water management facility is a rather modern concept and fortunately the wording of the Drainage Act allows for flexibility, permitting downstream assessment.

Both J. Harrigan and L . Meyers are owners central to this entire project. Both are bona fide farmers attempting to improve their declining agricultural production by adequate drainage. The properties, particularly that of Mr. Harrigan, are seasonally inundated by upstream water in ever increasing quantities. It appeared that everyone involved at the Hearings agreed that this water was caused by the construction and improper drainage of Highway No. 12.

Both landowners had tile drained their property at great cost only to find that they had an inadequate outlet and when they made an effort, together with others, to achieve a suitable outlet they had run into opposition and a claim for damages. The Harrigan net assessment amounts to approximately $18,000.00 and the Meyers’ net assessment amounts to approximately $15,000.00. In addition, each has been assessed an additional $8,750.00 relating to the cost of restoration of the 1997 work. Both have appeared before the Drainage Referee and indicated that such an assessment cost could be catastrophic in their farming operations, considering the costs they have already incurred with respect to drainage, etc. In the circumstances, I am of the opinion that equity demands that they be given some measure of relief. I am of the opinion that their plight has been caused in large measure by flooding, resulting from the construction and operation of Highway 12. 1 therefore will reduce Mr. Harrigan’s assessment by $8,000.00 and transfer the same to the assessment of Highway 12 ‑Ministry of Transportation and Highways‑ and further reduce the assessment of Mr Meyers by $6,000.00, which amount I also transfer and add to the assessment of Highway 12 ‑ Ministry of Transportation and Highways.

I have read the submissions of Carmen Smyth, forwarded by Maureen Cooke and listened to her submissions at the Hearing. I note that the net assessment for C. Smyth is approximately $3,000.00. There appears to be approximately 10.6 hectares assessed in the drain and there appears to be a considerable amount of systematic tile drainage in the north east corner of the property. The proper outlet for this portion of the property is the McNabb Drain and no doubt that outlet has been inadequate in recent years, largely because the property owners along the Award Drain have not taken steps to maintain the Award Drain. I am of the opinion that the Carmen Smyth property will benefit significantly from this drainage works when an adequate outlet is available. I therefore am of the opinion that the assessment is reasonable in the circumstances and confirm the same.

With respect to the assessment of R. Corsetti and G. Borgacci, which is in the approximate net amount of $7,000.00, for 41.3 hectares assessed in the drain, a large portion of which is systematically tiled Mr. Smart expressed the opinion that all 41 hectares flow toward the McNabb Drain. Mr. Borgacci, who appeared at the Hearing, indicated that he wished to farm this land personally in the future, complaining that the McNabb Award Drain had not been property maintained. It appeared to the Drainage Referee that Mr. Borgacci had a positive outlook and that he had made efforts to keep the Award Drain cleaned along the roadside ditch. However, it was apparent to the Drainage Referee that Mr. Borgacci and Mr. Corsetti have a very considerable investment in tile drainage which is severely compromised by an inadequate outlet. The Referee is of the opinion that Messrs. Corsetti and Borgacci will benefit more than many property owners in this watershed when they receive an adequate outlet. I therefore feel that they will benefit substantially from this work and affirm their assessment.

I have read the submissions of William D. Speedie and I am quite sympathetic with his concerns largely because his land is located some distance from the McNabb Drain. I note that Mr. Speedie has been assessed approximately $1800.00 net, which in all the circumstances I believe to be reasonable. I therefore find that I cannot grant any relief to Mr. Speedie.

I have also reviewed the submission of Mr. Man Hoi Leung. Mr. Leung is assessed for approximately 10 hectares in the net amount of approximately $1800.00. Because of the reduction in the grade of the Main Drain at the intersection of Highway 12 and 2^nd Concession Road, I doubt if Mr. Leung is being provided with as useful an outlet as previously. I am therefore going to reduce Mr. Leung’s benefit assessment by the sum of $800.00, which assessment will be transferred to 2nd Concession Road.

With respect to the submissions of Hache & Williams and Robinson relating to the Hache North Branch, I note their net assessment is approximately $2700.00 and $2400.00 respectively. I also note this is a commercial corner that is currently burdened with inadequate drainage arising from an inadequate outlet. This work of improvement will provide them with an excellent outlet which will benefit their properties enormously. I therefore have no difficulty in confirming the assessment.

I further confirm all other remaining assessments set forth in the latest Revised Schedule provided by Mr. Ken Smart, P.Eng. and dated the 31^st day of December, 2001.

I would like to commend Counsel for the various parties for their joint effort in settling the damage claim. I have been advised by Mr. Miller, Counsel for the Township of Ramara, that a draft Order will be provided to me on a consent basis which I will be pleased to endorse.

Mr. Miller has made an application that I give consideration to awarding legal costs to the Township with respect to his efforts on their behalf in processing this matter. He has provided me with a detailed Bill of Costs, including details of disbursements. He has indicated to me that most of this time was spent in processing the drainage report and very little with respect to the damage claim. He indicated that only 20 % of the bill of costs related to the damage claim. I am personally grateful for Mr. Miller’s assistance in this matter and have no hesitation in commenting that he was of great assistance in working with the other seven lawyers and three drainage engineers in processing this matter.

I have reviewed the written submissions provided by other Counsel with respect to legal costs. It appears to me that there was an understanding in the settlement of the damage claims that each Party would be responsible for its own costs. In that spirit and recognizing that the major

Legal costs related to the damage claim, I am going. to deny any award or costs other than a very limited award to the Municipality. The Municipality is required by the Drainage Act to process a drainage project. The history of the Drainage Act litigation, however, is to limit legal costs. I am therefore prepared to grant 20% of Mr. Miller’s request for costs and disbursements totalling $6,379.36 plus G.S.T., which amount is to be added to the costs of the drain.

I will conclude this Decision by quoting several concluding paragraphs from my previous decision of December 5, 2001.

“The Kaiser‑Reid property and the Dabis property, except for the upstream 200 metres,

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

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

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

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

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

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

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

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

DATED: June 14, 2002

Delbert A. O’Brien

Ontario Drainage Referee

Robwildon et al v. Ramara (Township), 2002 ONDR 7

Case Summary