McLean et al v. Evanturel (Township), 2003 ONDR 2

McLean et al v. Evanturel (Township)

2003 ONDR 2

DATE OF DECISION:

2003-02-01

2003-02

Drainage Act

BETWEEN:

2002-12-18

W.E MCLEAN AND BRIAN MCLEAN

‑AND-

D E C I S I O N

This Decision results from the Hearing conducted by the Ontario Drainage Referee in the Superior Court House in Haileybury, Ontario commencing on the 18th day of December, 2002. The Hearing was in response to a Judgment made by the Superior Court of Justice (Divisional Court) dated the 26th day of March, 2002 at which time the Divisional Court heard an Appeal made by the Appellants with respect to a Decision of the Ontario Drainage Referee dated the 28th day of December, 1998. That Decision of the Ontario Drainage Referee is attached to this Decision as Schedule “A”. In that Judgment, Mr. Justice, J. MacDonald, speaking for the Court said

“We confine our decision to the narrow ground of the Appellant’s right to be heard. The Referee has the discretion to determine the procedures to be followed at a hearing, subject to the Rules of natural Justice.

The Appellant sought a preliminary determination of the possible application of Sections 15 and 32 of the Drainage Act, R. S. O. 1990, cal. 17 as amended, on terms which would permit the Appellant to call evidence at a subsequent full hearing. The Referee knew that the Appellant wanted to argue that new and different claims existed.”

In our opinion it was patently unreasonable and an error in law for the Referee not to hear any evidence which the Appellant wanted to present on the issue of whether its alleged new claims under Section 70* of the Act were res judicata.

We quashed the decision that the Appellant’s current claims are res judicata. We leave it to the Parties to determine what they now wish to advance before the Referee.”

*it appears that the Court was referring to Section 79 of the Drainage Act.

Although the original Application of the Appellants was framed as an Application for Repair pursuant to Section 79 of the Drainage Act and secondly as a claim for damages pursuant to Section 106 (1) (c), Mr. Good advised the Court in his opening remarks that the issue to be determined was the issue of “sufficiency of outlet”.

PRELIMINARY MATTERS:

Mr. Ellies, solicitor for the Respondent, as a preliminary matter, argued that the Appellants could not now raise the issue of sufficiency of outlet inasmuch the Appeal previously filed with respect to the Referee’s Decision of May, 1996 had been withdrawn in March of 1998. ( It should be noted that the Decision of May 1996 had granted a right of appeal with respect to matters dealt with therein, provided such appeals were filed within 40 days.) The Appellants had filed such an appeal and had elected to withdraw the same in March of 1998.

Mr. Ellies further argued as a second preliminary matter that the issue of repair, pursuant to Section 79 of the Act, could not be proceeded with inasmuch as the Municipality had not been able to proceed with a Construction By-Law for the No. 4 Drain because of the multiple legal proceedings which continued to keep the matter before the Court. He argued that the Municipality could not be compellable or liable for repairs in circumstances where it was prevented from undertaking the re‑construction of the Drain.

Mr. Good replied to the preliminary objections raised by Mr. Ellies indicating that he had new evidence to present and that the Referee had very broad discretion to determine claims and disputes arising under the Act pursuant to the provisions of Section 106 of the Drainage Act.

The Referee reserved his decision with respect to the preliminary matters and advised that he was prepared to proceed, allowing Mr. Good, solicitor for the Appellants, to present any new evidence that might be available, particularly in deference to the decision of the Divisional Court referred to above.

The history of the No. 4 Drain and the previous proceedings relating thereto, need not be repeated once again in this Decision, being rather detailed in previous Decisions attached hereto as Schedules “A” and “B” .

EVIDENCE OF THE APPELLANTS

Mr. Good called as his first witness W. E. McLean who advised that he was presently the owner of the north half of Lot 2 Concession 3, Ingram Township. He advised that the constructed ditch which later became the No. 4 Drain in 1961 had only one‑half the depth and one‑quarter the width of the present dimensions. He advised that in 1961 it was only 20’ deep near the river and it could be crossed with horses with no difficulty. He advised that the ditch was originally dug by hand, with an outlet in the ravine. He stated that in the ravine there were large trees, some having a diameter of 1.5 feet. He advised that currently within 100 yards of the Blanche River , the ravine was approximately 240’ across and 135’ deep. He further advised that currently the ditch overflowed during the spring freshette into adjacent fields. During cross‑examination Mr. McLean advised that he was not seeking money, but rather wanted to have the ditch fixed. In replying to questions he indicated he could not remember whether he had withdrawn the Appeal in March of 1998 but advised that he had taken his direction from his lawyer.

Mr Good then called Archie Gibson, now a resident of North Bay. He had formerly lived in Ingram Township, leaving the area in 1956 but returning periodically. He advised that the dug portion of the ditch in 1957 was approximately 3’ to 4’ deep and that horses had no difficulty in crossing at the downstream end of the dug ditch. He advised that he had not seen the spring freshette since 1975, but had viewed the Drain in 1996 and had noted a substantial increase in the size of the ravine which he referred to as a canyon. Under cross‑examination by Mr. Ellies, Mr. Gibson agreed that there were many trees of substantial size in the ravine and that those trees had been there for many years. He concluded by admitting that he was unable to give any evidence indicating that any changes had occurred since 1996.

Mr. Good then called Brian McLean, the son of W.E. McLean. He advised that before 1970 the ravine at the lot line between Lots 1 and 2 was only 8 feet deep and approximately 20 feet wide. He stated that in recent years during the spring flood the drain overflowed into the adjacent fields. He further advised that each year he has to effect repairs along the north side of the drain because of erosion. He testified that in the last two years he had repaired washouts on the farm roadway which ran immediately along the north side of the drain.

Mr. Good next called Mr. L. de Vries, P. Ag. C. A. C., a professional agrologist with the firm of Robertson, Merrit and de Vries Limited, Resource Management Consultants, Scarborough, Ontario. Mr. de Vries was qualified as an expert in (a) air photo interpretation; (b) the use of land from photo interpretation; and (c) soil classification. Mr. de Vries filed a Report prepared for the Hearing dated January of 1998.

At the commencement of the second day of the Hearing, Mr. Ellies raised certain objections and had Mr. Good confirm that he was not (a) attempting to quantify damages; or b) attempting to propose an alternative scheme.

In a rather comprehensive report, Mr. de Vries advised that he relied on air photos taken in 1970, 1986 and 1997. The 1970 and 1986 air photos he was able to obtain through the Ministry of Natural Resources and the 1997 air photos were specially flown for the purpose of preparing his Report.

Mr. de Vries in the summary and conclusion of his Report states as follows:

“The comparative photo‑interpretative analysis and the historical documentation has demonstrated in a graphic form the conditions that existed with respect to the drains, the lands and the land uses and the changes that have occurred over the last 28 years. The earliest imagery that was readily available and pre‑dates the construction of Drain No. 4 was taken in 1969. It shows that some drainage works existed in Evantural and Ingram Townships. It was evident from this imagery that the drainage from Lots 1 and 2, Concessions 3, Evantural Township, flowed east under the Township Road through a ditch on Mr. McLean’s property, then into a gully and ravine before entering the Blanche River. This imagery also showed that some of the flow went south along the ditch on the west side of the Township Line to the next drain in the middle of the south half of Lot 1 Concession 3 ....” The Report continues “The construction of the Drain No. 4 was undertaken in 1975. The 1986 imagery provides a picture of some 10 years after construction. This imagery shows that within Lots 1 and 2 Concession 3 Evantural Township, major changes in land use took place. Lands that were wooded in 1970 are cleared and being cropped. Some tile drainage has been installed, some of the old field drains are no longer required .... As already mentioned, some signs of erosion are occurring along the gully and ravine further east while some of the flow is also going down the west side of the Township road the major part passes through the McLean property. There can be no doubt that changes in land use, increases in cultivated lands and the installation of tile drains have altered the hydrological characteristics of the basin surrounding Drain No. 4 and this has manifested itself in an increased flow during the peak periods in the spring. This has resulted in accelerated erosion in the gully on Mr. McLean’s property.”

“The 1997 imagery captures the present condition some 22 years after Drain No. 4 was constructed and 11 years after the 1986 imagery. Within Lots 1 and 2, Concession 3 Evantural Township there have been some further clearing and installation of tile drains. The soil drainage condition in these lands is much improved as revealed by the homogeneity of the tones. Between 1986 and 1997 imagery the comparative assessment has observed that there has been considerable widening of the ravine. This is due to lateral movement of the waters flowing through the ravine resulting in bank erosion and slumping of the ravine walls.

Within the gully and ravine sections of the Drain on Mr. McLean’s property, it was observed that there is extensive bank erosion, bank slumping and a subsistence along the ravine walls. Many sections are bare and devoid of vegetation, the banks are “scalloped” where large sections have slipped down into the ravine and been washed out into the Blanche River. Trees that were once on top of the bank have either toppled or slipped into the ravine.”

Mr. de Vries noted that the area of the ravine had increased by approximately 1 1/4 acres or 23 % and concluded by stating that “unless remedial action is taken there is no doubt the problem of erosion and bank instability on the ravine sections of Drain No. 4 on Mr. McLean’s property will continue and may even accelerate”.

EVIDENCE OF THE RESPONDENT

On behalf of the Respondent, Mr. Ellies presented Mr.Edward Gorecki, the Drainage Superintendent for the Township of Evantural. He advised the Referee that the Township had not been able to pass the by‑law to proceed with the construction because the matter had continuously been before the Court. He stated that in his opinion there had not been a dramatic change in the character of the Drain in recent years.

Mr. Ellies then called Jack Scott, the current Reeve, who had been on Council since 1967, as his next witness. He advised that before the No. 4 Drain was constructed in 1974, considerable work had been done by an adjacent farmer, Mr. Inglis, who had cleaned and deepened the existing outlet in Ingram Township with the consent of the McLeans. Mr. Scott confirmed the 1997 Appeal of Mr. McLean had been abandoned in March of 1998. He confirmed that the current Application had been filed by Mr. McLean on May 19, 1998.

SUBMISSIONS

Appellants:

Donald Good, on behalf the Appellants reviewed the evidence. He indicated that W. E. McLean had explained the early history of the ditch preceding the implementation of the No. 4 Drain. That history clearly revealed that as early as the 1920’s the ditch had been privately constructed by local owners culminating in the significant work done by upstream owner, Mr. Inglis, in 1971. W. E. McLean had advised that the erosion was limited in early years, but increased each year in significance. He reviewed the evidence of Brian McLean, noting particularly that Mr. McLean testified that subsequent to 1996, including the years 2000 and 2001 that there had been an increased amount of erosion.

Mr. Good reviewed the evidence of Mr. Gibson, an independent witness, who although he had moved away in 1957 confirmed that his early experiences indicated that work horses were able to cross the drain near the dividing line between Lots 1 and 2.

The Appellants’ solicitor then reviewed the evidence of Mr. de Vries who had been qualified as an expert with respect to photo interpretation, land use changes and soil classifications. He reviewed portions of the Report which had been filed as an Exhibit dated January of 1998. He specifically referred to Mr. de Vries’ conclusions which indicated that the aerial photos established that significant changes in land use had taken place in the upstream areas of the Evantural Township converting woodlands to farm land. The Report indicated that such changes, together with the increased drainage systems constructed, particularly tile drainage, significantly increased the velocity of flows. These increased flows had an erosion impact on the downstream ravine beyond the outlet of the Drain in Ingram Township, which resulted in an increase in the size of the ravine of approximately 1 1/4 acres. The Report observed that although the bottom of the ravine may have stabilized, the slopes had not and would continue to be degraded by erosion. Mr. Good argued that the evidence of Mr. de Vries should be preferred over that of the Drainage Engineer, Mr. Smart. He added that although Mr. de Vries did not claim to be an environmental specialist that he had strongly suggested that the erosion had a significant negative environmental impact.

Mr. Good submitted that the Drain had not been taken to a sufficient outlet as required by Section 15 of the Drainage Act. He noted that the March 30 1997 Report of the Drainage Engineer, Mr. Ken Smart, acknowledged the existence of an insufficient outlet and provided allowances for the same. Mr. Good indicated that he had some doubts as to whether or not the implementing by‑law of the Township of Evantural had included provisions for such allowances. Mr. Good then made submissions with respect to the law, dealing with the obligations imposed by Section 15 of the Drainage Act. Many of the arguments submitted were similar to those submitted previously on a prior Hearing, the Decision of which is attached hereto as Schedule “A” . The cases referred to by Mr. Good in general supported the proposition which is fundamental in Drainage Law that a Municipal Drain must be taken to a sufficient outlet. Mr. Good suggested that the Referee grant an injunction suspending any work for a period of at least 6 months during which time a further Report be prepared to deal with the issue of insufficient outlet and the damages flowing therefrom.

Mr. Good concluded his argument with respect to the res judicata issue by submitting that this matter was a new application, under a new Section of the Act, presenting a new claim. He submitted that there was new evidence subsequent to the Reports made by the Drainage Engineer, Mr. Smart, and because in his opinion the current Report would perpetuate an illegal condition that the matter should be reviewed. He argued that even if a new proceeding is required, the same is justified in law and he cited the case of Arborform Countertops Inc. v. Stellato et al, 29 O. R. 3rd at page 129.

Respondent:

Mr. Ellies commenced by stating that the construction By-Law for Evanturel Drain No. 4 was not illegal because all provisions of the Drainage Act including natural justice considerations had been complied with and the Appellant had voluntarily withdrawn his appeal with respect to the substantive issues in March of 1998. He confirmed that there had been a series of hearings since 1994 conducted before the Drainage Referee dealing with every issue in the matter.

Mr. Ellies submitted that there was nothing new or different in this application. He indicated that the Report of Mr. de Vries completed in January of 1998 was available or could have been available before the Appeal of Mr. McLean was withdrawn in March of 1998. He submitted that the professional evidence of Mr. de Vries was in some areas contradicted by the professional evidence of the Drainage Engineer, Ken Smart. He submitted that the evidence of Mr. Smart should be preferred because Mr. Smart had continuously been associated with the drain and the site over several years, whereas Mr. de Vries had only visited the site on two occasions.

Mr. Ellies argued that the only relevant new evidence was given by Brian McLean who merely advised that there was a continuation of the pattern of erosion, the same pattern that had existed and been acknowledged in prior hearings.

Mr Ellies repeated his previous argument that the Municipality had no obligation to repair pursuant to Section 79 inasmuch as it was unable to proceed with the construction work by reason of the continuous pattern of legal proceedings, initiated largely by the Appellants. Mr. Ellies submitted that there was no substantive evidence of environmental degradation. He repeated his arguments with respect to Section 15 and Section 32 of the Drainage Act stating that Section 15 was subject to Section 32 and the Appellants had not provided any persuasive legal cases that suggested the contrary.

He concluded by requesting that the Construction By‑Law be approved and compensation as provided in the Report of Ken Smart, P.Eng. be paid.

REASONS

Dealing first with the Appellants’ claim for a remedy pursuant to Section 79 of the Drainage Act “requesting repairs”. The Referee has no difficulty in deciding that such a claim, in the circumstances of this case is without legal foundation. Section 79 of the Drainage Act implies misconduct on the part of a municipality in neglecting or refusing to maintain a municipal drain in a state of repair. If a municipality has a plausible reason or excuse to justify its inaction, it cannot be held liable in damages or be compelled to proceed. In the circumstances of this case, the Municipality was unable to proceed with the construction work, the intention of which was to ensure that the Drain was in a good state of repair, on account of the series of legal proceedings. initiated primarily by the Appellant. Consequently I find that the Municipality had no obligation to the Appellant arising pursuant to Section 79 of the Drainage Act. The Referee wishes to acknowledge, however, that in his submissions the Solicitor for the Appellants did not actively pursue the Section 79 claim.

The Solicitor for the Appellant clearly indicated that the primary issue in this matter was that of the insufficiency of the outlet pursuant to Section 15 of the Drainage Act. It might be argued, as was argued by Mr. Ellies, that this claim was foreclosed when the Appellant withdrew his Appeal provided for in the Decision of the Drainage Referee issued in June of 1996. The Appellant did file such an Appeal, but voluntarily withdrew the same in March of 1998. However, a new application was made in May of 1998 and on consent of the Parties a Hearing was conducted in December of 1998 wherein the issue of the interpretation of Section 15 and Section 32 of the Drainage Act was addressed by the Referee and in addition the issue of res judicata. The Decision of the Ontario Drainage Referee is attached hereto as Schedule “A” which Decision was then appealed to the Ontario Superior Court (Divisional Court). That Court chose not to make any determination with respect to the interpretation of Section 15 and Section 32 of the Drainage Act, but overturned the Decision of the Drainage Referee with respect to the issue of res judicata and sent the matter back for a new Hearing before the Referee. The Divisional Court held on the basis of natural justice that the Appellant’s allegation that he had new evidence to adduce ought to have been heard.

The Referee has now conducted a full hearing with respect to issues raised by the Appellants and having heard the evidence and submissions presented stands by the legal interpretation made in that previous Decision attached hereto as Schedule “A”. The Referee has allowed the Appellants to present, without limitation, all available evidence with respect to the issue, as defined by the Appellants as to the sufficiency of outlet. Very little in the nature of new evidence was presented, referring to the narrow issue of sufficiency of outlet. Some evidence was presented by Brian McLean with respect to that issue, more particularly evidence that the erosion of the ravine continued after 1996 in much the same pattern as had been indicated in previous evidence at previous hearings. The evidence was not different in nature, it was simply more of the same.

With respect to the evidence of Mr. de Vries, it was of a scientific nature and of good quality. It was credible and more precise than previous evidence dealing with exact measurement as to the degradation of the ravine. There appeared to be only one fundamental conflict between the evidence of Mr. de Vries and the professional evidence of Mr. Smart namely whether or not the erosion in the downstream ravine had stabilized. Mr. Smart testified in a general way that in his opinion the erosion of the ravine had reached the point of stabilization whereas Mr. de Vries testified that although the bottom may have stabilized, slopes had not stabilized and that further erosion would continue and might even accelerate.

It is not necessary for me to deal with the issue of “res judicata” inasmuch as I have granted a full further hearing and have heard all the evidence made available to me by the Appellants without restriction. On the basis of that evidence and the submissions made, I once again find that Section 15 and Section 32 must be read together, Section 32 qualifying the requirements of Section 32. I further find that the Drainage Report as prepared by Mr. Ken Smart is legally correct and thus conforms to the requirements of the Drainage Act.

The drafters of the Drainage Act legislation, in their wisdom, recognized that there would be circumstances where the provision of a sufficient outlet was simply not economically feasible. In such circumstances where the need for drainage is imperative, Section 32 provides for damages to be granted to downstream lands where such lands were necessarily injured. The words of the Act are quite clear and they have been followed throughout the Province consistently for many years allowing many important drainage schemes to be constructed in circumstances where a sufficient outlet was not available. This No. 4 Drain is one such circumstance where very valuable upstream agricultural lands require and justify quality drainage in circumstances where the downstream lands ( valued at approximately $1,000 per acre) simply do not justify on a cost benefit analysis the type of investment suggested as necessary by the Appellants’ professional witnesses. It is regrettable that this matter has been so long delayed and involved so much costly litigation, the burden of which will fall in large measure upon the shoulders of the upstream farming community. In the future circumstances may change such as to justify a re‑appraisal.

ORDER:

THAT the Appeal of the Appellants be dismissed on all grounds.
THAT the By‑Law for the re‑construction of the No. 4 Drain be implemented and amended, if necessary, to provide for the allowances to be paid in accordance with the final Report of the Drainage Engineer and to provide for a reduced work commencing at the Ingram/Evantural boundary and proceeding easterly 600’.
THAT the Referee receive submissions with respect to the issue of costs either orally or in writing as agreed after consultation with the Parties’ legal representatives.

DATED: February 2003

Delbert A. O’Brien, Q.C. Juris D.

Ontario Drainage Referee