ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Hancock v. Wasaga Beach (Town)
2006 ONDR 1
2006-05-05
2006-01
STATUTE:
HEARING:
2006-02-20
B E T W E E N:
TOM HANCOCK AND WASAGA 500 GO-KARTS LTD.
Appellants
and
THE CORPORATION OF THE TOWN OF WASAGA BEACH
Respondents
Appearances
Counsel for the Appellants Counsel for the Respondents
Ian J. Rowe, Michael D. Stahr
Burgar, Rowe Professional Corporation Baulke Augaitis Stahr LLP
Barristers & Solicitors
D E C I S I O N
This matter came before the Ontario Drainage Referee in a Hearing, which commenced on the 20th day of February, 2006 continuing for three days.
The Hearing resulted from an Appeal filed by Tom Hancock and Wasaga 500 Go-Karts Ltd., requesting the Drainage Referee compel The Corporation of the Town of Wasaga Beach “Wasaga Beach” to appropriately maintain and clean out the Marl Creek Municipal Drain.
The Grounds for Relief further requested the Referee compel Wasaga Beach to commission an appropriate report to determine the extent of the benefiting area for the Marl Creek Municipal Drain with a corresponding schedule of assessment and requested damages in an amount to be determined with respect to Wasaga Beach’s failure to appropriately maintain the Marl Creek Municipal Drain.
A brief history of the Marl Creek Municipal Drain is necessary for a complete understanding of the issues that arose at the Hearing. The Marl Creek Municipal Drain (as it is now known), was originally established in 1898 by by-law number 303 of the Township of Flos and was named the Marl Lake Drain.
A supplementary by-law was passed on September 15, 1911 to authorize the borrowing of funds to complete the Marl Lake Drainage Work in accordance with the intention of the original by-law. There appears to be no further work in relation to the Drain, which was established on the report of M. Gaviller until the passage of By-law number 1283 of the Township of Flos in 1942. This authorized the repair of the Marl Lake Drain, based on the report of James H. Diamond, Township Engineer. Mr. Diamond’s report dealt with two sections of this Drain; one described as the north part started at the north limit of King’s Highway No. 92 between Lots 23 in the 8th and 9th Concessions of the Township of Flos and ran southerly to a point in the south half of Lot 23, Concession 8.
Shortly after continuing from the outlet of the north section, water from the Drain enters into Marl Lake and water from Marl Lake exits the lake through Little Marl Creek until the Drain commences again in Lots 26 and 27, Concession 6 in its southern or second section, continuing until it reaches the Nottawasaga River. A third northerly portion of the Drain, which I will describe as the headwaters section, continues northerly into Lots 23 and 22, Concession 9 in the former Township of Flos.
The work in 1942 was one of repair and improvement, according to the report of James H. Diamond.
Further work was done on the Drain in 1976. At that time there was discussion of whether there should be a Petition for Drainage Work and a new Engineering Report done. However, it was decided that the clean out be done in the form of maintenance under the previous by-law and the assessment schedule, in accordance with the 1942 Report, would be used. It was acknowledged by all parties that no maintenance was done from 1976 until 2004 when it occurred in the form of a clean out. The Township’s Engineer, Ainley and Associates Limited carried out the work in 1976.