Terrill et al v. Karwartha Lakes (City), 2004 ONDR 8

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Terrill et al v. Karwartha Lakes (City)

2004 ONDR 8

DATE OF DECISION:

2004-07-15

2004-08

STATUTE:

Drainage Act

HEARING:

BETWEEN:

2004-06-15

DR. SUSAN TERRILL, GORDON DURWARD, JANE DURWARD

BETTY BROUWER and JOHN BROUWER

APPLICANTS

AND -

THE CORPORATION OF THE CITY OF KAWARTHA LAKES

RESPONDENT

DECISION

The appeal was heard by the Ontario Drainage Referee in the Superior Court of Justice in Barrie, Ontario on the 15^th^ day of June 2004. The Applicants in their Notice of Motion issued the 8^th^ day of March 2002 asked for:

(a) An Order setting aside the Decisions of the Agricultural, Food and Rural Affairs Appeal Tribunal dated March 23^rd^, 2001, June 29^th^, 2001, September 17^th^, 2001 and October 22^nd^, 2001 concerning the Washington Municipal Drain.

(b) An Order that the Referee is seized of the proceedings concerning a report by Tom Pridham, P. Eng., dated April 28^th^, 2000 and the assessments levied thereunder.

(d) An Order setting aside By-Law 2000-25 of the Corporation of the Township of Mariposa.

(e) An Order prohibiting the Respondent from initiating any works of repair, improvement, extension or enlargement of the watershed of the Washington Drain until such time as a sufficient outlet is available, as specified in the report of a qualified engineer and until such report is finally adopted under the provisions of the Drainage Act.

(f) An Order extending the time for filing and serving this Notice, if necessary.

(g) An Order that this matter be tried together with two (2) appeals by Carl King concerning the same matter.

(h) Costs

(I) Other relief as may be permitted.

The grounds for the Application were set out as follows:

(a) The Applicants are owners of land downstream of the work proposed for the Washington Drain, which outlets into MacLaren’s Creek Tributary.

(b) The Applicants had no Notice of the Report of Tom Pridham, P.Eng., dated April 28^th^, 2000 as they are neither assessed owners or grantees of allowances thereunder.

(c) The Applicants have since become aware of the proposed work, which affects them as the increased volume and/or velocity of the flow will worsen the flooding which already occurs on their land.

(d) The Applicants, or some of them, have in the past complained to the Respondent, or its predecessor, that MacLaren’s Creek Tributary cannot accept the flows already delivered to it by the Washington Drain.

(e) The Drainage Act, especially S. 47 and 106.

(f) Other grounds as may be advised.

The Respondents replied by issuing a further Notice of Motion dated the 1^st^ day of June 2004 which requested.

“ (a) An Order dismissing the Applicants’ appeal/motion.

(b) The costs of this motion; and,

The grounds for the Motion were stated as follows:

“ (a) The Drainage Referee does not have jurisdiction to hear the Applicants’ appeal;

(b) The appeal was filed after the completion of a Tribunal hearing and the rendering of its final decision;

(d) Section 47 of the Drainage Act, R.S.O. 1990, D.17;

(e) Such further and other grounds as counsel may advise.”

Counsel for the Respondent submitted that it would be expeditious to deal first with the Respondent’s Motion which focussed on two issues namely the jurisdiction of the Drainage Referee in this matter pursuant to Section 47 of the Drainage Act and the issue of whether or not the Applicants’ Appeal had been brought within the time frame as required by the Act and/or whether the Drainage Referee ought to exercise his discretion in extending the time. Counsel for the Respondent argued that if the Respondent’s Motion succeeded on either of these grounds it followed that the Applicants’ Appeal should be dismissed without the necessity of proceeding to a full trial.

The Respondent filed in support of her Motion an Affidavit made by Tom Pridham P.Eng.

In his Affidavit Mr. Pridham advised that he had been formally appointed by the Township of Mariposa to prepare a report pursuant to Section 78(1) of the Drainage Act for the repair and improvements of the Washington Drain on the 15^th^ of February 1999. He further advised that on March 17^th^, 1999 the Township of Mariposa received a letter from Gordon and Jane Durward expressing concerns with respect to flooding and damages requesting that they be notified of any site meetings regarding the drain, notwithstanding the fact that they were downstream of the Washington Drain. Mr. Pridham thus advised that those landowners as well as Annie and Susan Terrill, also downstream, were notified of the site meetings held on May 13^th^, 1999. The Applicants attended that site meeting as well as an information meeting held on the 10^th^ of February 2000. At the time Mr. Pridham advised the downstream owners (who lived in Ops Township) that in his opinion he did not foresee additional hardships to the downstream land because of the proposed work. Again, the Applicants were present at a meeting to consider the report held on May 16^th^, 2000 and a By-Law was given a first and second reading in June. There followed an appeal to the Court of Revision and an appeal to the Agricultural, Food and Rural Affairs Appeal Tribunal. Subsequent procedures involved three days of hearings before the Tribunal, a day before the Divisional Court, two days before the Drainage Referee and a further day before the Divisional Court on appeal.

Mr. Pridham advises that it was not until March 8^th^, 2002 that the Applicants’ filed their Notice of Motion to the Drainage Referee. He stated only that the Applicants’ John and Betty Brouwer received a copy of the report dated April 28^th^, 2000. Mr. Pridham advised that Section 47 of the Drainage Act requires that an appeal under the section be launched within forty days of the mailing of the notices under Section 46(2) of the Act. Accordingly the time allowed for the Applicants’ to launch an appeal in this case would have expired by July 31^st^, 2000.

Mr. Pridham was cross-examined on his Affidavit by Mr. Courey, counsel for the Applicants’ and repeated in his opinion that the work on the proposed work on the Washington Drain would “have no effect on downstream lands.” Mr. Pridham admitted that Annie and Susan Terrill and Gordon and Jane Durward had not been served a copy of the Report.

Legal Arguments

Ms. M’Garry argued that the Drainage Referee had no further jurisdiction pursuant to Section 47 of the Drainage Act once it had been established that the project drainage engineer had addressed the issue of sufficiency of the outlet. With respect to the Drainage Referee’s discretion to extend time limits she argued that the Drainage Referee could only do so in a “reasoned and rational way, having looked at all the circumstances.” Ms. M’Garry argued that although the Applicants Terrill and Durward had not received a copy of the Drainage Report pursuant to Section 46(2) they had participated in site and information meetings and therefore were aware of proceedings. She advised that the appeal ought to have been filed by the end of July 2000 pursuant to the terms of Section 47 and that no adequate explanation had been given as to why the Applicants had delayed. Ms. M’Garry added that it would prejudice the petitioners to delay the Washington Drain further.

Mr. Courey stated that the trial of this matter had originally been scheduled, but was delayed because of appeals to the Divisional Court. Therefore any issue of jurisdiction ought to have been raised much earlier. Mr. Courey further argued that the 40-day limitation in Section 47 did not apply to his clients because they had never been mailed a copy of the report. He further argued that the Drainage Referee should therefore be guided by Section 111(1) of the Drainage Act which provided for a two-year limitation period for appeals. Mr. Courey went on to argue that his clients were confused by the multitude of proceedings before the Drainage Tribunal, Divisional Court, etc. He added that the Drainage Referee had broad discretion pursuant to Section 113 of the Drainage Act and in the circumstances where no prejudice had been shown to the Petitioners, that it would be reasonable to exercise that discretion and permit a late appeal.

With respect to the jurisdiction issue Mr. Courey argued that Section 47 required the Drainage Referee to review the matter of the sufficiency of the outlet otherwise the appeal process would be meaningless. He concluded by stating that the Drainage Act was remedial legislation and ought to be interpreted liberally. Justice would require that the Applicants’ be granted their day in Court, he stated.

At the conclusion of the arguments the Drainage Referee advised the Counsel that he would reserve his decision with respect to the Motion of the Respondent and would proceed to hear evidence with respect to the appeal of the Applicants.

Appeal of Applicants

The hearing continued and Mr. Courey called as his first witness on behalf of the Applicants David Presley an instructor at Sir Sandford Fleming Community College. Mr. Presley indicated that he had spent approximately 20 years measuring aquatic inventories particularly with respect to the MacLaren Creek which was the outlet for the Washington Drain. He indicated the MacLaren Creek was unique in the number and variety of fish species and that it was particularly valued as a spawning ground for the Muskellunge.

Dr. Susan Terrill a professional veterinarian and one of the Applicants advised that she operated a mixed farm downstream of the Washington Drain outlet along and adjacent to the MacLaren Creek. She advised that her farm lands were annually flooded and her father the previous owner had complained to the Township in a letter as early as October 17^th^, 1974. She had expressed concern that they would not only be affected by the work on the Washington Drain, but by the additional proposals currently under consideration all of which would use the MacLaren Creek as an outlet, namely the Rogers Hancock Drain, and Elm Tree Road drainage proposal, further drainage work to serve Tampa Farms etc. She noted that physical barriers had been created downstream such as railway embankments, road crossings and laneways which obstructed flows in the MacLaren Creek. She added that a large beaver dam existed downstream for decades. She stated that she did not oppose work on the Washington Drain, but was convinced that the downstream owners would suffer additional flooding and damages as a consequence. Upon cross-examination Ms. Terrill agreed that she had attended the site meeting where her problems were discussed, but advised that she had not received by mail an official copy of the report.

Mr. Gordon Durward one of the Applicants advised that he had also owned a downstream farm neighbouring that of Dr. Terrill’s since 1980. He had advised that he had sent a letter through his lawyer, to Ops Township and to Township of Mariposa in August 1998 complaining of continual flooding. He advised that he had met the Drainage Engineer for Ops Township John Kuntz with respect to his flooding problems and had learned that there were proposals for further drainage works in the proposed Elm Tree Road branch and a further drainage work on behalf of Tampa Farms in addition to the clean up work that had been done on the Rogers Hancock Drain. All this proposed work he believed would compound the downstream flooding. He agreed that they had attended the site meeting with respect to the Washington Drain, but advised that he had never received an official notice of the report. He filed pictures which disclosed extensive flooding over his access lane leading to both his house and his barns. He advised that this flooding took place not only during the spring freshette, but also during heavy rain storms in the summer months. He referred to the Washington Drain Report prepared by H.M. Gibson P.Eng. originally dated August 1974 which advised that the Washington Drain had been originally constructed under an agreement of owners dated February 1907. He noted that Mr. Gibson in his report of 1974 had originally contemplated “it is my recommendation that this drain be cleaned and improved and extended downstream to an outlet on the north side of the Town Line between the Township of Ops and the Township of Fenlon.”

Under cross-examination Mr. Durward acknowledged that he attended the site meeting, but advised that he had not signed a petition because he did not wish to pay the amount of money assessed to his lands as disclosed in a draft assessment schedule prepared by engineer Kuntz which assessed his lands in total to close to $12,000.00. He indicated, however, that he was willing to pay his fair share and wanted the work to continue downstream in the MacLaren Creek to a proper outlet.

John Brouwer one of the Applicants advised the Drainage Referee that he operated a mixed farm located at the outlet of the Washington Drain and advised that he was personally satisfied with the proposed Washington Drain works which incorporated much work that he had already completed on his own property. Mr. Brouwer was very committed to environmental issues, but expressed support for the downstream Applicants who he agreed were severely flooded at certain times of the year. He expressed concern as to the adequacy of culvert sizing in the roads immediately downstream of the Washington Drain.

Mr. Courey called Mr. King an upstream owner located at the upper end of the Washington Drain who expressed support and concern for the flooding which he regularly witnessed, and which was suffered by the downstream Applicants. Mr. King advised that railway culverts constructed in a railway embankment on Lot 27, Concession 1 in Ops Township presented a severe restriction to flows in the MacLaren Creek. In addition, he advised that there was a long term beaver dam located in Fenelon Township on Lot 1, Concession 1 which also severely obstructed flows. Mr. King concluded by stating that he supported the Applicants as an upstream owner because he was of the opinion that the Washington Drain was dumping water on downstream owners and causing damages. He indicated that he was willing to pay his fair share to see that downstream owners obtained proper relief. He also expressed concern about the damage that obstructions were causing to fish habitat.

Evidence of Respondent

Ms. M’Garry called as her first witness the appointed drainage engineer on the Washington Drain namely, Tom Pridham. Mr. Pridham advised that the 1974 Gibson Report had been revised when downstream petitioners withdrew from the petition and that all work was done in accordance with the 1977 revised report. Thus the Washington Drain terminated at the Town Line between the Township of Mariposa and the Township of Ops. Mr. Pridham restated his opinion which was expressed on page 4 paragraph 2 of his Report on the Washington Drain “we did not foresee additional hardship to the downstream lands being created as a result of the proposed work.” Mr. Pridham indicated that although a new branch was being added to the Washington Drain known as the Stoelinga Branch that it was wholly within the old watershed and would not increase the flow downstream. Mr. Pridham indicated that because there was a 60-foot fall from the upper reaches of the Washington Drain to the outlet at the Town Line that the flow would continue downstream whether or not the Washington Drain existed.

Mr. Pridham under cross-examination by Mr. Courey advised that the tile drainage both existing and proposed acted as a buffer to peak flows. Mr. Courey added that in his opinion the replacement culvert in the Town Line at the outlet of the Washington Drain was adequate, although he admitted that he had not conducted exact measurements.

Mr. John Kuntz P.Eng. was called as a further witness by Counsel for the Respondent. Mr. Kuntz advised that he was involved in the clean out of the Rogers Hancock Drain in Mariposa Township the lower portion of which was located in the Township of Ops and which had an outlet in the MacLaren Creek. Mr. Kuntz advised that he was concerned that the lower 57 metres of the Rogers Hancock Drain be cleaned out. It was located on the Durward’s lands and in the process of examining it he had talked to Mr. Durward. He noted that Mr. Durward had serious flooding problems particularly with respect to the access lane which could only be navigated at certain times of the year with a tractor. Mr. Kuntz further advised that a petition had been filed by Tampa Farms which related to an area of the MacLaren Creek adjacent to Lot 26 in Ops Township and a more easterly portion of the same property which would be served by a proposed Elm Tree Road Branch and/or Drain. Mr. Kuntz stated that he had already conducted site meetings and prepared material. The material that Mr. Kuntz had prepared included a plan of the area which was filed as an exhibit in the proceedings. Mr. Kuntz decided that he could not proceed further in the absence of a petition although he had investigated the MacLaren Creek area and even gone so far as to prepare a draft assessment schedule. Mr. Kuntz supported Mr. Pridham’s opinion that the Washington Drain had a sufficient outlet.

Mr. Kuntz testified that his investigation revealed that there were several obstructions in the MacLaren Creek which caused flooding and for which he had considered remedies which had never, however, been compiled in a complete Drainage Report. These obstructions consisted of:

♦ The right-of-way culverts in an old railway embankment which crossed through the water shed.

♦ The lane way culverts on the Durward property.

♦ A bottleneck at the lower end where the water course crossed the Elm Tree Road.

♦ A decade’s old beaver dam which was not only causing flooding, but restricted fish mobility.

Mr. Kuntz in his thorough and forthright presentation of the evidence appeared to invite the Drainage Referee to resolve the dilemma by directing that his report be completed so as to give the necessary relief to the downstream owners in this matter.

Arguments

Mr. Courey for the Applicants

Mr. Courey stated that the evidence of Applicants Terrill and Durward as to the annual flooding and damage occasion was both direct and credible. That evidence was supported by Mr. Brouwer and Mr. King both upstream owners who had witnessed the downstream flooding and urged corrective action be taken. He noted that the original report of Mr. Gibson provided for work to be done right to the Fenlon Town Line raising a presumption that ought to be given some weight.

Mr. Courey added the “state of nature no longer existed in this downstream area and that much of the flooding was caused by the restrictions of man-made barriers.” He argued that improved farming practices and other infrastructure developments increased the velocity of flows if not the quantity of flows. He challenged the concept that tile drainage acted as a buffer particularly at times when the ground was frozen and/or saturated. Mr. Courey further argued that Mr. Kuntz recognized the problems and had made efforts to resolve the same to the point where he had completed a watershed plan, an assessment schedule and had contemplated remedial designs all of which had not been incorporated into a final report because of his concerns with legal procedures. He noted that Mr. Kuntz appeared to invite the Drainage Referee to resolve the legal issues and allow his work to proceed on the MacLaren Creek’s downstream outlet.

Mr. Courey requested that the Drainage Referee:

♦ Prohibit any work to be done on the Washington Drain until such time as a sufficient outlet was available.

♦ Pursuant to Section 106(1)(b) of the Drainage Act, amend the resolutions of the respective municipalities to require that the work on the Rogers Hancock, the proposed Elm Tree Branch, the proposed Vandenberg Branch, and the tributary work on the Tampa Farms (Lot 26, Ops Township) be taken to a sufficient outlet on the MacLaren Creek including work on the MacLaren Creek outlet.

♦ Remain seized of the matter and that all further appeals be referred to the Drainage Referee.

Ms. M’Garry Counsel for the Respondent

Ms. M’Garry pointed out that the reason why the Gibson report was modified in 1977 was because the petitioners in the downstream end had withdrawn from the petition. She noted that Mr. Pridham had looked at the downstream area and concluded that there would be no further damage. She reported that because of the 60-foot fall in the Washington Drain the drain could be filled in and the water would still find its way to the MacLaren Creek. She pointed out that two drainage experts had testified that in their opinion the Washington Drain had a sufficient outlet. Ms. M’Garry urged the Drainage Referee not to delay matters further indicating that proceedings had been very costly. Ms. M’Garry noted that despite the complaints of the downstream Applicants with respect to flooding and damages suffered that they had not petitioned for relief under the terms of the Drainage Act.

Ms. M’Garry advised the Drainage Referee that if the Drainage Referee chose to amend the resolutions of the municipality having heard evidence in addition to and independent of the Washington Drain issues that the Municipality would have no issue with such a determination. However, Ms. M’Garry queried whether or not the Drainage Referee in the circumstances would have jurisdiction.

Findings in Fact and Law

Having heard the evidence provided by the Applicants and the Respondent including submissions I find as follows:

♦ That the lands of the downstream Applicants particularly the lands of Dr. Terrill and Gordon and Jane Durward have consistently flooded both during the spring flood and in times of heavy rain causing damage and inconvenience.

♦ That the aforesaid owners have never received allowances pursuant to Section 32 of the Drainage Act despite the fact that the condition has prevailed for many decades.

♦ That the downstream area is far removed from a state of nature inasmuch as physical obstructions have been incorporated into the landscape such as the railway embankments, the Durward access laneway, the crossing at the Elm Tree Road and in addition the beaver dam which has existed for many years in Fenlon Township. These constructed obstructions I find to be a major factor contributing to the flooding problems of the Applicants.

♦ That additional drainage work is in process which will use the MacLaren Creek as an outlet namely, the Elm Tree Branch and/or Drain, the extra work requested by Tampa Farms on the MacLaren Creek, the possible Vandenberg Branch, even the completion of the work on the Rogers Hancock.

♦ That John Kuntz has made a thorough investigation of the MacLaren Creek water course. That he has observed the flooding, examined the obstructions and contemplated solutions. That he has completed a detailed plan of the water shed, completed a draft assessment schedule and only failed to complete the full report because of legal misgivings. That substantial costs have been incurred by the Municipality, that the historic problems are very close to a solution, but for the need of legal direction.

I find as a matter of law that I am required to exercise my discretion in favour of the Applicants with respect to the late filing of the appeal pursuant to the powers granted to me pursuant to Section 113 of the Drainage Act for the following reasons:

The Applicants namely, Dr. Terrill and Mr and Mrs. Durward are not strictly bound by the term’s of Section 47 of the Drainage Act inasmuch because they did not receive a formal notice of the drainage engineer report, but qualify as to their right of appeal pursuant to Section 47 as being owners of land “affected by the drainage works.”
Because of the multiplicity of the proceedings involving this matter it is reasonable to believe that the Applicants were confused as to their rights.
Further confusion appeared to be caused by the conflicting interest which contributed to delays including the Department of Oceans and Fisheries approvals.
The additional evidence provided in this hearing particularly by engineer John Kuntz as to the work done by the Township of Ops and the proposal for additional drainage in the area (all of which evidence may not have been available in previous hearings) had a measured influence on the Court in exercising its discretion in favour of granting relief.

The Drainage Referee is satisfied that he has jurisdiction to review the sufficiency of the outlet in an appeal pursuant to Section 47 and that review involves more than merely rubber stamping the opinion of a drainage engineer. The sufficiency of an outlet involves more than the determination of physical calculations, but also involves legal consideration recited in case law such as whether the outlet is a natural watercourse, possible prescriptive rights, outlets into constructed channel, wetlands, etc.

I accept the evidence of the two drainage engineers in this matter Mr. Pridham and Mr. Kuntz to the effect that there is a sufficient-outlet for the Washington Drain viewed independently on the basis that no further damage will occur. However, I also find that flood damage has been suffered by the Applicants for some time in the past and that the proposed works which include the work on the Rogers Hancock Drain, the proposed Elm Tree Road Drain and/or Branch, the Tampa Farms work on the MacLaren Creek water course, the possible Vandenberg work, all in combination raise a very strong presumption that the MacLaren Creek will not provide a sufficient outlet. The extensive and expensive work already wisely done on the MacLaren Creek outlet by John Kuntz begs for completion requiring only a legal green light to permit its completion and the resolution of this enduring conflict.

Although, the downstream Applicants have in the past failed to sign a petition requesting the works they have collectively at this hearing indicated that they favour, that further work be done on the MacLaren Creek water course and they have indicated that they are willing to pay their fair share for such work. The need has been demonstrated, the solution is at hand and common sense requires that action be taken. I find that I have original jurisdiction to entertain an appeal with respect to the report of an engineer under Section 47 and in view of further evidence provided particularly by Mr. Kuntz, the assessed owners, and the Applicants I find that common sense and justice requires that (pursuant to section 106 of the Drainage Act) I make a direction that the Township of Ops appoint a drainage engineer (which might well be Mr. Kuntz) to complete the work that Mr. Kuntz has undertaken on the MacLaren Creek water shed and prepare a report with respect to the same. Thereafter the report should follow the usual procedures as provided in the Drainage Act.

I find that there is no need or reason to delay the work on the Washington Drain and that it may proceed forthwith as it will likely cause no further injury to the downstream Applicants.

The Court in making this decision relies on the very broad powers granted to the Drainage Referee in Section 106 of the Drainage Act. The Referee is guided by the legal philosophy that has been consistently pursued by the Courts in Drainage matters referenced by the Dean of Drainage Practitioners, Frank Proctor in his text “The Drainage Acts, Ontario” 1908 when he quotes Mr. Justice Meridith in (re Dundas St. Brydges [1904] 8 OLR 52 at p. 55:

“It is always to be borne in mind that these local improvement clauses are to be considered remedial legislation, and are to receive such large and liberal construction as will best attain the object of the enactment. They are to be worked out by that plain class of laymen, which usually fills municipal office of township, town or village, as well as of city. They are not to be the subject of expert hair splitting, nor to stand or fall upon any Judge’s or any court’s notion of what is fair or unfair, beneficient or the opposite to the taxpayer. The Legislature may be well, and must, well or ill, be trusted to know what is best and to know how to employ the proper language in which to express its will.”

DATED: July 15^th^, 2004

Delbert A. O’Brien, Q.C. Juris D.

Ontario Drainage Referee