ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Robwildon et al v. Ramara (Township)
2002 ONDR 8
2002-12-02
2002-08
STATUTE:
HEARING:
BETWEEN:
2002-11-08
ROBWILDON LIMITED
PLAINTIFF
‑AND-
THE CORPORATION OF THE TOWNSHIP OF RAMARA, MCCARTHY LAND IMPROVEMENT, LAFARGE CANADA INC., IKE MEYERS AND JOSEPH HARRIGAN
DEFENDANTS
DECISION
The Ontario Drainage Referee heard a Motion made by the Township of Ramara in the Superior Court at the Court House in Barrie, Ontario on the 8th day of November, 2002. The Motion requested:
“A declaration that the Orders made by the Ontario Drainage Referee on the 5th day of December, 2001 and June 14, 2002 were made pursuant to the provisions of Section 4 of the Drainage Act, R.S.O. 1990, Chapter D17”
An Affidavit of Service was filed by Counsel for the Township of Ramara which confirmed that all assessed owners on the Drain had been given notice of the Motion. In addition an Affidavit made by Edward B. Veldboom, Barrister and Solicitor, in the City of Orillia stated:
“2. These actions were commenced by Robwildon Limited and Diether Carlos Dabis and Christine Kaiser‑Reid on January 12th, 1999 and March 12, 1999 respectively naming as one of the parties Defendants, the Township of Ramara. These actions sought damages for negligence, nuisance and negligent misrepresentation arising out of drainage work which was carried out on an Award Drain known as the McNabb Drain.
Because the work was carried out on an Award Drain and because it was apparent that remedial work to the drainage system would be necessary, all parties to the litigation consented to an Order transferring the action to the Drainage Referee pursuant to Section 120 of the Drainage Act, R.S.O. 1990, c.D. 17. As a result, an Order was made by Madam Justice Kiteley dated November 24, 1999, a copy of which is attached hereto and marked as Exhibit “A” to this my affidavit.
On an application by the Corporation of the Township of Ramara to the Drainage Referee, the Municipality was ordered to appoint an Engineer to examine the drainage area and report to the Referee pursuant to Section 8 (1) of the Drainage Act. Now produced and shown to me marked as Exhibit “B” to this my affidavit is a true copy of that Order of February 22, 2000.
I am advised by Michael Miller and do verily believe that all of the parties to this action and all parties who were found to be in the drainage area by the engineer proceeded with these matters before the Ontario Drainage Referee as if a formal petition had been presented by the Municipality and land owners pursuant to Section 4 of the Drainage Act.
A hearing was conducted before the Drainage Referee in accordance with the principles set out in the Drainage Act and an engineer was appointed by by-law pursuant to Section 8 (1) of the Drainage Act.
The findings of Delbert A. O’Brien, the Ontario Drainage Referee, are contained in Decisions dated December 5th, 2001 and June 14, 2002, copies of which are attached hereto and marked as Exhibit ‘C’ and ‘D’ respectively.
I am advised by Michael Miller and do verily believe that complaints have been received from members of the public that the Orders made by the Drainage Referee were not made pursuant to a petition. As a result of these complaints, the Ministry of Agriculture, prior to granting any grants, has requested the Ontario Drainage Referee to clarify whether the changes and alterations to this drainage system will constitute a Petition Drain as defined by the Drainage Act.”
Mr. Miller made submissions on behalf of the Township requesting that the Referee make an Order declaring and confirming that the McNabb Municipal Drain is properly and lawfully constituted pursuant to the provisions of the Ontario Drainage Act, having all the characteristics and entitlements as if commenced by petition pursuant to Section 4 of the Drainage Act.
Christine Kaiser‑Reid (marina owner) appeared before the Referee and made submissions to the effect that that drain had not been properly constituted by Petition and requesting that the Referee initiate a new process “founded on the democratic principles of the Drainage Act and the fact that the present construction of this project be stopped.” In addition she requested a new Drainage Engineer be appointed to prepare a new Report.
J. Snowden, a full time farmer, appeared and urged the Referee to extend the drain further downstream to the vicinity of the Dabis laneway culvert. He expressed the fear that the unimproved portion of the drain on the Dabis property would not provide an adequate outlet.
Mr. Ike Meyers, a full time farmer, also appeared and urged that the matter proceed forthwith.
In the history of the Drainage Referee’s involvement in the process of decision making under the Ontario Drainage Act, the McNabb Drain proved to be one of the most complex and challenging.
Initially the matter was referred to the Ontario Drainage Referee on the understanding that emergency measures were required to forestall further damages to downstream owners, more particularly Kaiser‑Reid and Dabis (siltation had filled the marina and erosion threatened features of the water course). At a meeting in Osgoode, the Referee reached the clear understanding that there was a consensus amongst the Parties for the need to immediately appoint a drainage engineer to prepare a drainage report dealing with immediate remedial and preventative measures.
A series of hearings followed in which the Drainage Referee observed every tenet of natural justice to ensure that every party had ample opportunity to appeal, understand, be informed and make submissions with respect to the progress of the drainage work. Most parties were legally represented and during the course of the hearing eight lawyers participated, along with three engineers, all of whom ensured that justice was done.
The preventative and remedial measures taken were successful. The marina was quickly restored to commercial use and immediate measures to prevent erosion were undertaken. That emergency work and the report of the engineer identifying costs, etc. greatly facilitated the settlement of the damage claim which was settled without a lengthy trial.
The major purpose of this project, including the private and contested drainage work, was the need to provide drainage for the agricultural lands, particularly those of Meyers and Harrington. Their property had been grossly flooded and to obtain an adequate drainage, they had spent many thousands of dollars to install tile drains only to be frustrated by a totally inadequate outlet. The purpose for this work and the primary area requiring drainage was agricultural.
The Drainage Referee is compelled to comment that most legal counsel and assisting engineers were very co‑operative. The larger industrial owners, the road authorities and the Municipality were generous in accepting the burden of substantial assessment in an effort to advance the process.
The Referee was at all times anxious to ensure that safeguards were incorporated into the Scheme to protect the Dabis and Kaiser‑Reid properties recognizing that their properties were very vulnerable at the downstream end of the Award Drain being subject to ever increasing flows resulting from the inevitable development of the upstream watershed.
It must be recognized that the significant cost of building the upstream storm water management features (which enabled the undersized protective culvert to remain in the old Grand Trunk Railway) was for the benefit of the downstream owners.
The evidence adduced in the several hearings indicated that at one time the farmers had an adequate outlet in the Award Drain, but that over time, development, particularly in the form of highways, municipal roads and possibly railways distorted the flow patterns. The failure to maintain the Award Drain exacerbated the problem depriving the farmers of adequate drainage. The farmers demonstrated their understanding of the need for proper drainage by expending tens of thousands of dollars in the process of installing tile drains. The Drainage Act fortunately provides a remedy for these farmers and its many enabling provisions permit the replacement of the Award Drain by a Municipal Drain.
FINDINGS OF LAW AND FACT IN LAW
(A) I find on the basis of the evidence presented that this Municipal Drain is an agricultural drain and its primary purpose was to provide sufficient outlets for agricultural lands.
(B) That as a matter of law Section 106 of the Drainage Act provides ample original jurisdiction to the Drainage Referee particularly in an emergency situation to make the Order made in this proceeding. Section 106 (1) (c) is one of several subsections which grant jurisdiction to the Referee ... “to determine claims and disputes arising under this Act including subject to Section 120 claims for damages with respect to anything done or purporting to have been done under this Act or a predecessor of this Act or consequent thereon.” The Drainage Act is remedial legislation and the Interpretation Act requires that it be given a liberal interpretation to accomplish the purposes of the Act.
(C) In this case I find the Award Drain, constructed under a “predecessor Act”, was no longer adequate to serve the watershed. In the process of settling the damage dispute, I find it was necessary to engage a drainage engineer to improve the existing Award Drain and to repair the damages caused by the contested private work. Calculations made by the Drainage Engineer also served to expedite the damage claim and did in fact advance the settlement arrangements with great savings in costs.
(D) The obvious purpose of Section 120 (1) of the Drainage Act in providing for the transfer of damage claims to the Court of the Referee, as was done in this case, is to permit a more complete resolution of drainage problems than the mere award of damages. The matter was transferred by Madam Justice Kitelely in the belief, in the words of the Section “...that the relief sought therein is properly the subject of a proceeding under this Act or that it may be more conveniently tried and be disposed of by the Referee...” . The expectation inherent in the words of this Section is that the resolution by the Court of the Referee will go beyond the mere award of damages, and will encompass the correction of the fundamental drainage problem. Such was the mandate in the present matter and it was fulfilled.
ORDER
THE DRAINAGE REFEREE THEREFORE ORDERS THAT
This Municipal Drain be classified, treated and considered to be Standard Agricultural Municipal Drain in all respects similar to a Municipal Drain initiated by petition pursuant to Section 4.
All agricultural grants, such as would be available in the normal agricultural municipal drain, to be available.
The legal and administrative costs of this Hearing borne by the Municipality be added to the cost of the drain.
DATED: December 2 2002
Delbert A. O’Brien, Juris D, Q.C.