Whalen v. Mississippi Mills (Town), 2003 ONDR 1

Whalen v. Mississippi Mills (Town)

2003 ONDR 1

DATE OF DECISION:

2003-07-19

2003-01

Drainage Act

2003-04-02

BETWEEN:

JACK WHALEN APPELLANT

AND -

CORPORATION OF THE TOWN OF MISSISSIPPI MILLS RESPONDENT

Counsel for the Appellant: Counsel for the Respondent:

Barrister & Solicitor Barrister & Solicitor

DECISION

On the 2nd day of April, 2003 the Drainage Referee conducted a hearing in the Superior Courthouse in Perth, Ontario to deal with the appeal of Jack Whalen. The appeal was pursuant to Section 106 (1)(b) of the Drainage Act "to determine the validity of ...of any petition ... relating to a drainage works under this Act."

ISSUE:

The issue to be determined was whether or not the drainage petition was valid having been signed by the Road Superintendent in circumstances where it was alleged that the true purpose of the works was to provide drainage for a mini subdivision including the roads located therein.

The relevant sections of the Drainage Act are as follows:

Section 4(1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with a clerk of the local municipality in which the area situated by,

Section 4(1)(c) Where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 subsection 5;

The records revealed that in 1978 the Aldot Subdivision had been constructed in what was then the Township of Ramsay near the Town of Carleton Place on Lot 5, Concession 4. A drainage plan had been prepared as part of the subdivision agreement and had been registered on title in 1981. That drainage plan provided for the drainage of a minor subdivision and the relevant road system to the south by way of an easement ditch running through the property of Mrs. Crerar and the property of the Appellant Mr. Whalen. It appeared that before the easement could be acquired and the drainage ditch constructed the development firm had gone into bankruptcy and the project was taken over by the engineering firm Greer, Galloway & Associates Limited. In subsequent years, fourteen houses were constructed on fifteen lots, but the easement was never obtained, nor was the drainage ditch constructed. The subdivision road named Spruce Crescent formed a perfect U attached to the south side of Spruce Drive which roadway ran east and west. At the bottom of the U (Spruce Crescent) was a culvert in the roadway directing the flow south to a depression or natural water course running due south which had been the proposed course of the easement and drainage ditch. Over the years, it appeared that a depth of standing water remained in the road ditches near the aforementioned culvert and the residents complained frequently to the council of the flooding conditions.

FACTS:

In response to the complaints of residents the Council of the Town of Mississippi Mills attempted to obtain from the Appellant a drainage easement as proposed in the subdivision agreement. It appears that the landowner immediately south of the subdivision, Mrs. Crerar, had agreed to enter into such an agreement. The Town prepared a draft agreement and forwarded the same to the Appellant and when a consensus could not be reached, the Town advised that they would proceed by way of a petition drain. Accordingly, on February 25th, 2002 the Town sent a letter to all area land owners including the Appellant inviting each to a meeting to be held on the 28th of February at the council chambers to discuss procedures with respect to the construction of a municipal drain. Further efforts were made by the Town and Mr. Goode, Solicitor for the Appellant, to negotiate an easement agreement, but all efforts failed and on the 3rd day of September, 2002 Denis Bedard, Director of Roads & Public Works signed a petition for a municipal drain. A resolution of the Town of Mississippi Mills dated the 17th September, 2002 appointed John Stidwell, a drainage engineer to review the petition and prepare an engineering drainage report. On November 6th, 2002 Mr. Stidwell conducted a site meeting and reported that in his opinion the petition was valid. Before further steps could be taken, an appeal was filed by the Appellant by his Solicitor Donald Goode questioning the validity of the petition.

EVIDENCE OF APPELLANT:

Jack Whalen advised that his property which was approximately one quarter mile from the subdivision was largely overgrown, but that he did participate in some farming. He advised that the proposed easement agreement drafted by the Town was not acceptable to him and that it had never referred to road drainage. He stated that the surface water from the subdivision flowed south across the Crerar property and continued over his property to an outlet near Highway No. 7. He advised that he had purchased his 95 acres in 1991. In cross-examination he agreed that there were beaver dams on his property and at times pools of water on the upper section. He also agreed that the proper drainage of this water would benefit his property.

Michael Benson a registered planner gave evidence on behalf of the Appellant. He advised that he had attended the site meeting of November the 6th and he inspected the road and that in his opinion the road displayed no significant damage at the southerly culvert. He did not observe flooding at the site, but noted standing water in the ditches near the culvert.

Henry R. Krzywicki M. Eng. gave evidence on behalf of the Appellant. He advised that he had visited the site, on January 24th, 2003. He stated that the pavement of Spruce Crescent was in his opinion in good condition. He added that in his most recent visit on April 2nd he observed some cracking adjacent to Lots 8 & 15 and on the south culvert. He stated that there were occasional pot holes particularly on Spruce Drive. Under cross-examination by Mr. Knotts, Mr. Krzywicki agreed that the standing water in the ditches could have a negative effect on the road.

EVIDENCE OF THE RESPONDENT:

Denis Bedard, P. Eng. Director of Roads and Public Works for the Town of Mississippi advised that the Town had undertaken certain work on the roads in the Aldot Subdivision by clearing the ditches and putting stone on the shoulders. He stated there was up to a depth of four feet of standing water in the road ditches near the culvert. He advised that because of inadequate drainage to the south there was a back up of water all around the subdivision and this resulted in the deterioration of the roads.

Glenn Gordon, Drainage Superintendent for the Town said that he had walked the length of the water course to the south across the Crerar property to the Appellant's property. He indicated there was a great deal of debris and beaver dams restricting the flow south. He advised that there was a safety problem presented to the public with so much standing water in the ditches because of the poor drainage.

John Stidwell, P. Eng. the drainage engineer advised that in his opinion the petition was valid and there was a need for an improved and outlet. He stated that a petition drain was needed for proper drainage of the roads and ditches.

SUBMISSIONS:

MR. DONALD GOODE

Donald Goode on the behalf of the Appellant advised that section 4(1)(c) of the Drainage Act ought to be narrowly interpreted. He maintained that unlike the other subsections which require a majority of owners or a majority of land ownership (significant burdens) the singular signature of the road superintendent should be not permitted to allow casual use. Mr. Goode proceeded to argue that the real objective in this matter was not road drainage, but rather a subdivision drainage and that the evidence pointing to the need for road drainage was very limited. He noted that Mr. Henry R. Krzywicki had advised that the road was in good condition and that the minor cracking was not due to improper drainage. Mr. Goode noted that the language of a draft easement on various letters of communication referred to area drainage, not road drainage. Mr. Goode concluded by stating that it was an abuse of the Drainage Act to initiate a municipal drain for the purpose of providing drainage for the residents of the subdivision in circumstances where there was very little evidence of the need for road drainage.

MR. RICHARD KNOTT

Mr. Knott on behalf of the respondent referred to the Public Transportation and Highway Improvement Act Chapter 15 definition section, which defines Highway as in "... including the area between a lateral property line thereof" He argued therefore that ditches must be included as part of the road. Mr. Knott then pointed out that Section 4(1)(c) of the Drainage Act specifically refers not only to roads, but also "part thereof"; thus ditches were surely included as part of the road system. He further stated that most of the witnesses even those called by the Appellant admitted that standing water in the ditches would have a negative influence on the roads. The evidence he advised clearly and consistently suggested that there was standing water as much as two feet deep in the ditches. He stated that both Mr. Peddard and Mr. Stidwell had clearly testified that drainage was necessary to preserve the road system. He concluded by pointing out that the Drainage Act provided that the drainage engineer was entrusted to determine whether or not a petition was valid and if he so found then onus fell on the Appellant to disprove its validity.

FINDINGS OF FACT AND LAW:

The Referee was assisted in this matter not only by able legal counsel, but also by experienced professional witnesses. I am satisfied that the evidence disclosed that there was a need for the proper drainage of the roads and ditches in the subdivision. The Town had taken preventive action to maintain the roads, including the restoration of the shoulders with rock, the cleaning of ditches and exploration of a more satisfactory outlet. The evidence supported the existence of standing water in the ditches particularly in the area of the southerly culvert during most months of the year. The evidence further indicated that standing water would eventually lead to the deterioration of the road way. It was not necessary for the Municipality to wait until the roads are in a state of decay before preventive action was taken. The Municipality was also concerned with the potential safety problems presented by the standing water in the ditches in a residential area. It is highly coincidental that concurrent with the drafting of this decision that the Province of Ontario has ordered municipalities to take measures to deal with potential problems arising from standing water and the West Nile disease threat. The evidence was also consistent as to the need for an improved outlet to the south. I therefore find that there was a need for a drainage work, for the proper maintenance of the roads and ditches in the area of the Spruce Crescent Subdivision.

I further find Section 4(1)(c) need not be restrictively interpreted as to its application. Road authorities universally have special problems with respect to drainage, and it is common knowledge that excellent drainage is absolutely necessary for the proper maintenance of roads and for public safety. Further, the road authority is responsible for its actions to a Municipal Council which is responsible to the electorate for its actions. The accountability is to the public at large which makes use of the highways and not to the immediate land owners in the water shed, as is the case with the other subsections. Accordingly, I am of the opinion that Section 4(1)(c) requires a liberal rather than a restrictive interpretation as to its use.

ORDER:

I hereby Order and Confirm that the finding of the Drainage Engineer was proper and that the Drainage Petition is valid.
I further Order that I will entertain proposals from Counsel as to whether or not they wish to make written submissions or have me attend for an oral hearing with respect to costs.

DATED: June 19th, 2003

Delbert A. O'Brien, Q.C. Juris D

Ontario Drainage Referee