ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
Dabis v. Ramara (Township) 2004 ONDR 7
2004-07
STATUTE: Drainage Act
HEARING:
BETWEEN:
DIETHER CARLOS DABIS AND CHRISTINE KAISER-REID PLAINTIFFS
- AND –
THE CORPORATION OF THE TOWNSHIP OF RAMARA DEFENDANT
- AND -
MCCARTHY LAND IMPROVEMENT, LAFARGE CANADA INC., IKE MEYERS, JOSEPH HARRIGAN AND ROBWILDON LIMITED THIRD PARTIES
D E C I S I O N
This Motion brought by the Township of Ramara was heard by the Ontario Drainage Referee on the 5th day of July 2004 in the Superior Court of Justice in Barrie, Ontario. This matter had commenced as a claim for damages brought in the Superior Court of Justice in Barrie, Ontario and had been transferred by an Order of the Superior Court of Justice to the Drainage Referee pursuant to Section 120 (1) of the Drainage Act. At an initial hearing on February 22nd, 2000 at Osgoode Hall in Toronto upon the consent of the parties attending, an Order was made by the Referee appointing a Drainage Engineer to prepare a drainage report including an interim report with a view to taking remedial action before spring freshette. The interim report was made in response to concerns that serious further damages would result compounding the damages that had already been suffered by downstream owners if corrective action was not taken before the spring flood. Interim remedial work was undertaken and a full drainage report was completed dated May 15th, 2001. A series of hearings were conducted by the Drainage Referee during which modifications were made to the project and/or approved and the construction of the drain has now been substantially completed. A description of the drainage work, of the watershed and the history of the previous McNabb award drain is fully recounted in the previous decisions of the Drainage Referee and will not be repeated here.
In this Application (which was first brought on the 16th day of March 2004 before the Drainage Referee by the Township of Ramara and which was adjourned at the request of Mr. Dabis and downstream land owners to the 5th day of July 2004) the Municipality requested the following:
An Order pursuant to Section 106 of the Drainage Act approving "Addendum No. 2" dated February 6th, 2004 prepared by K. Smart Associates Limited which amended K. Smart's Report December 31st, 2001.
An Order directing the Corporation of the Township of Ramara to pass a By-Law adopting Addendum No. 2.
An Order that the Corporation of the Township of Ramara pass a By-Law authorizing the construction of drainage works as set forth in Addendum No. 2 prepared by Ken A. Smart P.Eng. dated February 6th, 2004.
In addition at the Hearing the Township of Ramara requested that a further modification to Addendum No 2 be approved.
The Township also requested at the Hearing that both the Reid and Dabis properties be excluded from the maintenance provision and that the revised Maintenance Schedule "B" be approved. The Solicitor for the municipality of Ramara advised the Drainage Referee that he did not wish to pursue the claims outlined in paragraphs 4, 5 and 6 of the Motion as filed.
At the commencement of the hearing Mr. D. Dabis requested a further adjournment of the matter indicating that negotiations with the Ministry of the Environment had not been completed and accordingly any decision by the Drainage Referee ought to await the outcome of those discussions.
Mr. Miller responded by advising that had he been assured that a decision would be made by the Ministry of the Environment before the hearing, however he still urged that the Drainage Referee proceed noting that further delays only increased the costs and frustrations. Mr. Scholtz speaking for Lafarge Canada Inc. strongly apposed any further delay suggesting that the Drainage Referee could quite appropriately deal with the matters contained in the Municipality's application independently of any decisions to be made by the Ministry of the Environment. He noted that the parties had consented to have this matter proceed before the Drainage Referee at the original Hearing and had never objected to the jurisdiction of the Drainage Referee previously in the course of the hearings and therefore no further delay could be justified. Mrs. Kaiser-Reid supported Mr. Dabis by also requesting an adjournment. Having heard the Parties, the Drainage Referee decided to proceed with the hearing rejecting the request for a further adjournment and noting that considerable extra costs had already been incurred in this project by multiple proceedings granted in response to the request of various Parties. The Drainage Referee also stated that any decision made by him with respect to the matters before him could be made independent of the negotiations with the Ministry of the Environment.
Mr. Miller commenced by filing an Affidavit with the Drainage Referee which confirmed that every assessed owner had been notified as well as all interested parties of both the Hearing and of the details of the Municipality's Motion. Mr. Miller then filed a copy of Addendum No. 2 to the Engineer Report dated February 6th, 2004. Mr. Smart, the appointed Drainage Engineer, requested that the Addendum be approved, which Addendum outlined changes to the Report as built and in addition provided for significant modification of the storm water management facility located on the Township lands which was part of the Township Industrial Park. Mr. Smart advised the Referee that the project had been held up for many months because of difficulties with the Ministry of the Environment despite the fact that the Municipality had the approval of the Federal Ministry of Oceans and Fisheries, had previously reviewed matters with the local office of the Ministry of the Environment and had received a legal opinion from the Township of Ramara's legal advisors stating the project was exempt from the provisions of the Environmental Assessment Act. Mr. Smart added that the delays thus caused had added significantly to the cost of the Drain and because of the contradictory messages received from the Ministry resulted in a continual series of unproductive meetings.
Mr. Smart advised that it was necessary to move the storm water management site somewhat to the east (but still on Township property) because bedrock had been encountered limiting the possible depth at the original site. Mr. Smart advised he had prepared two designs, the second design to accommodate the requirements of the Ministry of the Environment for quality control. The first design merely provided for the relocation of the site adhering to the original specifications. The second alternate facility provided for a portion being designated as a sediment forebay area with one meter of standing water. The Referee was advised that the total cost for the relocation of the storm water management site would amount to approximately $12,000.00. The other construction costs referred to in the Addendum were covered by the contingency estimates in the original Report and therefore would not add to the cost of the Drain. Mr. Smart concluded by requesting:
(a) that "Addendum No. 2" be ordered adopted including modification No. 1 dated the 11th day of March, 2004. He advised that the modification No. 1 was a housekeeping item required in conjunction with Bell Canada, the cost of which would be totally assessed as a special assessment to Bell Canada.
(b) He further requested that both designs for the storm water management site be approved so that a decision might be made after negotiations had been completed with the Ministry of the Environment.
Mr. Smart concluded by advising the Referee that he was not requesting that water be pumped into the Drain from the LaFarge quarry which he advised against. He also requested, for purposes of clarification, that the Dabis & Kaiser-Reid properties be excluded from future maintenance provisions and that a revised schedule with respect to maintenance be adopted.
With respect to electric fencing on the Snowden property, he recommended electric fencing would be sufficient and advised that the Dabis pools could be cleaned for approximately $2,000.00.
Mr. Scholtz, Barrister and Solicitor, speaking on behalf of LaFarge, advised the Referee that his client did not wish to have any water pumped from the quarry into the Drain suggesting it would lead to maintenance problems. Mr. D. Dabis advised the Referee that the Drainage Engineer had informed him that the pools would be cleaned out at the cost of the Township and that he had requested that they be off line ponds. In reply to Mr. Dabis' question, Mr. Smart advised that, in his opinion, the ponds should be on line if they were to operate as sediment traps. He further advised that work that he had formerly suggested be done at the outlet of the pond was declined by a Ministry of Oceans and Fisheries representative. Mr. Smart further confirmed that, in his opinion, the storm water management facility on the industrial site was provided substantially for the benefit of downstream owners by controlling flows during storm periods.
Mrs. C. Kaiser-Reid advised the Referee that she was very concerned about potential the pollution of her marina and park resort facility by pollution from the Drain. She urged that upstream cattle be denied access to the Drain by fencing. She requested that her property be removed from the maintenance schedule. She queried whether the off line watering hole on the Snowden property constituted a pollution trap.
Mr. Harrigan advised that during the spring flood he had as much water as before and filed pictures to illustrate the same. Ike Meyers, the only full-time farmer on the Drain, advised that the Drain was working well and he was fully satisfied with it.
Mr. Borgacci advised that he still opposed the Drain and stated that although his property should benefit he was over assessed. He advised that in his opinion the unreasonable delays in this matter were caused because necessary approvals had not been received in advance.
Mr. Smart, in his reply, advised that further seeding of the banks of the Drain would be conducted and that further fencing on the Snowden property could be accommodated if so ordered. He advised that future flooding on the Harrigan property would be substantially reduced by the timely removal of spring ice built up in the Drain and by the construction of a berm that was currently being constructed on a portion of the Harrigan property.
FINDINGS OF FACT AND LAW
The Drainage Engineer, having heard extensive evidence concerning this matter in a series of Hearings lasting over several years, finds that the primary purpose of this Drain was agricultural. This view is supported by the fact that the self help work undertaken outside of the terms of the Drainage Act which led to the initial claim for damages primarily was for the purpose of obtaining drainage relief for the farmers, Harrigan and Meyers.
· I find no difficulty in approving "Addendum No. 2" which deals with minor modifications and refinements as built, none of which were the subject of any objections or apparent concerns during the Hearing. The relocation of the storm water management facility on the Township property, including both of the designs whichever option is chosen is also fully acceptable.
· Changes requested in Modification No. 1 which only affects Bell Canada and the deletion of Dabis and Kaiser-Reid from the Maintenance Schedule are minor and are justified.
· The issue of pollution of the Drain, particularly in the area of the Snowden farm is a significant issue of public safety. When the Referee took a view of the Drain in April it was apparent that the public use of the marina beach and the basin, particularly by children, raised a public health issue. The Referee noted the fact that the cattle had unimpeded access to the Drain on the Snowden farm and the Drain appeared to run through a wintering barn yard where cattle waste was evident and several inches deep. The off set watering facility also appeared to pose a threat of pollution. It was apparent to the Referee that measures had to be taken in the interest of public safety to properly fence along the Drain so as to deny cattle direct access to the Drain.
· When the Referee traveled along the course of the Drain in mid April, he observed that the sediment ponds on the Dabis property had almost refilled with sediment. It was obvious that they were operating as a sediment trap and that they had refilled during the construction upstream of the Drain. It was obvious that they provided considerable protection to the downstream marina in arresting sediment flow and that to function effectively they should be cleaned at least one further time.
ORDER
The Drainage Referee hereby directs:
(a) That the Township of Ramara pass an amending bylaw adopting Addendum No. 2 dated February 6, 2004, Modification No. 1 to Addendum No. 2 dated March 11, 2004 and the Maintenance Schedule as set forth in revised Schedule "B" to remove the Reid and Dabis properties.
(b) That the By-Law approve either Option No. 1 or Option No. 2 for the storm water management facility on the Township site, whichever is determined appropriate by Council after negotiations with the Ministry of the Environment.
(c) The Referee further directs that fencing be completed on the Snowden property to limit access by cattle to the Drain throughout the property. The Drainage Engineer is to examine the off line cattle drinking facility on the Snowden property to determine if the cattle access to it could be restricted so as to limit pollution. If the Engineer determines that nose pumps are required to service the cattle on the Snowden property, such an addition is hereby authorized.
(d) That the two ponds on the Dabis property adjacent to the farm site be cleaned at the expense of the Drain one final time.
(e) That LaFarge Canada Inc. not be required to pump water from its quarry site into the Drain.
(f) That any further costs incurred by this Order, including the engineering and administrative costs occasioned by this Hearing be added to the cost of the Drain and pro rated.
DATED: August 25th, 2004
Delbert A. O'Brien, Q.C., Juris D. Ontario Drainage Referee