ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Campbell v. Beckwith (Township)
2006 ONDR 2
2006-07-27
2006-02
STATUTE:
Drainage Act
HEARING:
2006-05-09
B E T W E E N:
JOHN DOUGLAS CAMPBELL and ETHEL MARJORIE CAMPBELL
Appellants
and
THE CORPORATION OF THE TOWNSHIP OF BECKWITH
Respondent
Counsel for the Appellants Counsel for the Respondent
Richard T. Knott D. Gregory Meeds
Howard Ryan Kelford & Knott Vice Hunter Labrosse LLP
Barristers & Solicitors Barristers & Solicitors
-and-
B E T W E E N:
CORPORATION OF THE TOWNSHIP OF BECKWITH
Appellant
and
DOUGLAS CAMPBELL and ETHEL MARJORIE CAMPBELL
Respondents
Appearances
Counsel for the Appellant Counsel for the Respondents
D. Gregory Meeds Richard T. Knott
Vice Hunter Labrosse LLP Howard Ryan Kelford & Knott
D E C I S I O N
This matter that was heard in Perth, in the County of Lanark, on May 9th, 10th and 11th, 2006.
PRELIMINARY MATTERS
As a result of Motions heard on the 23rd day of November, 2005, it was decided on consent that the Referee was to hear on behalf of the Appellants, John Douglas Campbell and Ethel Marjorie Campbell (Court File number 300/03) submissions for an order to determine the validity of the drainage petition and/or resolution of the Council of the Township of Beckwith of May 22nd, 2002 pursuant to section 106 (1)(b) and section 4 of the Drainage Act and to further have a trial on the matter of the compensation to the Appellants from the Respondent for damages caused to the Appellants’ property by erosion and/or flooding incurred but limited to loss of soil, loss of use of farmland and inconvenience. Confirmation was contained in the Procedural Order of the Referee.
On consent, the Appellant, the Township of Beckwith (Court File number 752/04) confirmed that it would be continuing its Appeal for damages caused by the destruction, alteration, or diversion and stopping up of a portion of the drainage works in the Foster Municipal Drain situate on the Respondents’ property.
As obliged by the Procedural Order on File number 752/04, Counsel for the Corporation of the Township of Beckwith was to provide confirmation whether the Township wished to continue its appeal regarding engineering costs for the preparation of the Foster Municipal Drainage Report.
In a letter dated November 4, 2003, the Corporation of the Township of Beckwith wrote to the then Drainage Referee after receipt of the Decision of the Agricultural & Rural
Affairs Appeal Tribunal proposing to submit an appeal to the Drainage Referee of the engineering costs for the preparation of the Foster Municipal Drain Report by J.L. Richards & Associates Limited. On the same day that the Procedural Orders described above were provided to Counsel, Vice Hunter Labrosse LLP on behalf of the Corporation of the Township of Beckwith confirmed that it would not pursue the appeal of the J.L. Richards & Associates Limited engineering costs relating to the preparation of the first Foster Municipal Drain Report.
Prior to this matter being heard by the Referee, an appeal was instituted by John Campbell, (also known as John Douglas Campbell) and Karen Campbell, to the Agriculture Food and Rural Affairs Appeal Tribunal. The appeal in that hearing was an appeal of the decision of the Court of Revision under Section 54 (1) of the Drainage Act, as well as an appeal brought as a result of the owners, farmers John and Karen Campbell’s dissatisfaction with the report of the engineer under Section 48.
During the process of the Tribunal hearing, which occurred on three separate days, April 15th, 2003, May 16th, 2003 and June 5th, 2003, an appeal (Court File No. 300/03) was instituted by John Douglas Campbell, Karen Campbell and Mary Muriel McDiarmid against the Corporation of the Township of Beckwith dated April 17th, 2003 to the Drainage Referee. This appeal was further amended on April 24th, 2003 thus giving rise to parallel proceedings.
On page 16 of the decision of the Agriculture Food and Rural Affairs Appeal Tribunal dated September 5th, 2003, concerns were raised regarding parallel proceedings with the Referee. The Appellants in that matter, John Douglas Campbell et al. did not vigorously pursue their grounds regarding the adequacy of petition with the Referee. A further petition was submitted in this matter shortly after the Tribunal’s decision on September 30th, 2003. As a result, the Township proceeded in accordance with the decision of the Tribunal to work on the drain without resort to the Referee, on an interim basis, to resolve at that time the issue of the adequacy of the original petition.
It would appear that the Appellants in Court File number 300/03 took into account the statement of the Tribunal set out on page 16 of its decision: “Should it turn out that the appellant is successful before the Referee, there is little doubt that in this case a valid petition not only can be presented, but will be presented and that accordingly this project will be realized. Therefore, this panel sees no purpose in increasing the costs of the proceedings by directing the engineer to develop alternative specifications and assessments, one, on the assumption that the additional lands are brought in, and the other, on the assumption that the additional lands are not brought in.” The comments of the Tribunal and the subsequent conduct of the Appellants in Court file number 300/03 suggest that the Appellants accepted the wisdom of the Tribunal’s comments and elected to proceed with this matter, only after the report ordered by the Tribunal was completed.
FOSTER MUNICIPAL DRAIN
Although the Foster Municipal Drain has a short history, it seems to have developed over time with little regard to the regulations imposed by the Drainage Act. The initial report was dated November 4, 1968 completed by Graham, Berman and Associates Ltd., Consulting Engineers. The drain was described as the J Foster Municipal Drain.
At the trial before the Referee, John Spriet on behalf of Spriet and Associates provided only portions of the original report through the supply of copies of the 1968 plan and profile drawings. These were included in the Foster Drain 2004 Township of Beckwith Drainage Report prepared by Spriet and Associates Ltd. No written portions of the report completed by AJ Graham, P.Eng of Graham, Berman and Associates Ltd., Consulting Engineers were provided.
Over the next 30 years, the drain appeared to develop on its own with tie-ins, rerouting and the addition of lands to the drain. The Main West Drain had 98 hectares (242 acres) in part of Lots 22, 23 and 24, Concession 10, added in approximately 1995, although John Spriet was unable to confirm that date. The Main East Drain, which originally tied into the Main West Drain in Lot 23, Concession 9, being the farm owned by John Douglas Campbell was reconfigured as a result of a number of occurrences.
As described in the Foster Drain 2004 Report of Spriet and Associates 102 hectares (described as 108 hectares in testimony of John Spriet) were removed from the original watershed outletted by the Main West Drain through the diversion of the Main East Drain in the mid 1980’s. According to Jim Foster, the predecessor to the current owner of part of Lot 24 Concession 10, Mr. Warland, requested that he, Mr. Foster, allow the addition of his private drain to the Main East Drain. Eventually this became Branch 6 as described in the Report on the Foster Drain 2004. At the same time, according to the Spriet Report, Jim Foster constructed a culvert under the unused road allowance described as the Foster Road under the supervision of the Drainage Superintendent. A private ditch was then taken from this outlet southerly from Station number 0+889 to
Station number 0+616. At that point it joined with Branch 1 of the J. Foster Municipal Drain in effect creating a new outlet for the Main East Drain.
While the Spriet Report on the Foster Drain 2004 indicates that there was some supervision from the Drainage Superintendent; the alteration of the drain occurred without a Report or any form of Township approval through by-law or resolution. This occurred in 1982 according to John Spriet and for a time appeared to delay problems, which were later encountered through the addition of lands to the watershed, which outletted through the Main West Drain.
John Campbell, one of the Appellants in Court File number 300/03, provided evidence at the Hearing. He advised that the property owned by his family at Lot 23, Concession 9, Township of Beckwith had been in the family since the 1950’s. He testified that portions of the land to the north of the Jock River were cleared for cropping in the 1980’s. At the same time, some systematic tiling occurred on the lands to the north of the Jock River, however, this systematic tile outletted directly into the Jock River and not into the Main West Drain, which dissected the field in the east half of Lot 23. For a period of time, water in the Drain appeared to move along well. There was a cleanout approximately in 1993.
RECENT DEVELOPMENTS
Mr. Campbell’s evidence was that there would be some flooding in the spring but that seeding could occur after the flooding abated. Very seldom had there been flooding after the seeding occurred, he stated.
In the late 1990’s he noticed a change in the pattern of water arriving on the premises. After the cleanout he noticed soil erosion.
Around this time a neighbour, Jim Foster, purchased approximately 200 acres in Lots 23 and 24, Concession 10, Township of Beckwith. Mr. Campbell decided to walk up the Drain to investigate the cause of the erosion. It appears that in the current location of Branch 2 as described in the Foster Municipal Drain 2004 Report, someone in the past had dug through a knoll, allowing a considerable amount of land to gain drainage access to the Main West Drain. According to John Spriet, this represented 98 hectares or 242 acres, a considerable addition to the Drain.
Much of the land that was added was forested, however, portions of the lands acquired by Mr. Foster (Part Lot 23 and Lot 24) and owned by Serge Pharand (Part Lot 23) were cropped. It is acknowledged by all parties with knowledge of the area, that the open ditch, which now is described as Branch 2 in the Foster Municipal Drain 2004 Report, was in existence and had been in existence for a considerable length of time. There was considerable conjecture as to when these lands were added, ranging from 1987-88 to 1995.
Mr. Campbell brought this situation to the attention of Logan Moore, the Drainage Superintendent. According to Mr. Campbell, there was no response from Mr. Moore until the spring of 2000, when Mr. Moore attended on his property and walked the property with Mr. Campbell up to the location of the tie-in of the private drains into the Main West Branch of the Foster Municipal Drain. Logan Moore submitted a report to
Council (Exhibit No. 5). Several months later, by Resolution number 403-00, Council appointed J.L. Richards & Associates Limited as Township Engineer for purposes of the drain. A replacement Resolution of Council was completed on May 26, 2001 being Resolution number 152-01. These Resolutions are worded substantially the same. Attached to Exhibit 6 containing Resolution number 403-00, is a letter from the Township of Beckwith dated December 7, 2000 to the Engineer, Guy Cormier at J.L. Richards & Associates Limited recommending that he consult with the Ministry of Transportation regarding the process of the widening of Highway No. 7 to see if such widening would affect the process undertaken in the above mentioned Resolutions.
In the interval between the original report of Logan Moore to the Township of Beckwith of April 23, 2000 and the second Resolution in May 2001, it seems that the issues, which have clouded this matter throughout, were identified. These were concerns as to the amount of assessment which would be paid by the lands brought into the expanded watershed boundary, along with Mr. Campbell’s desire to relocate the Main West Branch along the Foster/Campbell property boundary where an existing ditch had been dug by Jim Foster to outlet the Main East Drain, as described previously. With a lack of resolution of the relocation issue, it was the request of Mr. Campbell that the unassessed lands be prevented from draining into the Foster Drain (Exhibit 5). Without resolution of the dispute, the Township decided to authorize a plug to be installed in June of 2001 (see Exhibit 9 letter from Ross E. Trimble to John D. Campbell dated January 7, 2003) to prevent water from the additional lands access to the drain.
At least two times during the ensuing years, the plug had to be repaired or reinstated. This is confirmed by photos contained in Exhibit 2 A, photos numbers 1, 3, 20, 21, 24 and 25. The photographs provide evidence that the plug or dam was either washed out or tampered with on three successive years. In Exhibit 9, the Chief Administrative Officer Mr. Trimble confirmed that repair of the plug was made in December of 2001 and December 2002, yet the plug was still not operating properly in 2003.
A petition signed by Jim Foster dated February 14, 2002 was submitted. However, it is obvious from Exhibit 13 that the intent of the Clerk-Treasurer, Ross Trimble was that certain wording be added to the petition signed by James E. Foster. The wording was: “Pursuant with Section 66 of the Drainage Act, subsequent connections with drainage work, I/WE herewith petition that drainage works undertaken on my property (as per Table 4 in the Preliminary Report-Foster Municipal Drain) be incorporated into the Foster Municipal Drain. I/WE understand and accept the assessment for these works will be as stipulated in the Engineer’s Report, currently being finalized.”
Subsequently on September 30, 2003, after the Decision of the Agriculture, Food and Rural Affairs Appeal Tribunal was rendered, a new petition for drainage works, in accordance with Form 3, giving an approximate description of the lands to be drained by means of a drainage work was supplied to the Municipality.
It was Mr. Campbell’s evidence that the dam did not work. After the dam was constructed, water still came over the dam as additional ditches brought water to the Pharand/Foster property.
A timely response could have alleviated the problems brought on by these additional lands. Although correspondence dated April 24th, 2001 from Mr. Campbell’s Solicitors,
Howard Ryan Kelford and Knott suggested that matters should have proceeded more quickly, the Township acceded to Mr. Campbell’s demands and the block described previously was put in to prevent draining of the additional lands through Foster Drain.
Mr. Cormier, the appointed Engineer, then proceeded with work on the drain. It was his work that was subsequently appealed to the Agriculture Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act.
Without reviewing the Decision of the Tribunal at length, I note that under The Findings, the following comments were made by the Tribunal:
“The engineer in this case referred to various drainage experience, but it was the cross-examination by Mr. Cable brought out that the engineer has never designed a project under the Drainage Act. It has been the custom in the profession for engineers to “apprentice” with experienced drainage engineers and to acquire the expertise under the guidance of an established experienced professional. There is good reason for the custom.” (p. 14)
The Tribunal went on to say:
“The panel is of the opinion that the engineer should not have undertaken this project. As a result of the engineer undertaking this project some unnecessary work was done, some necessary work was not done, the process was extended and complicated beyond what the project involved, parties were put to unnecessary time investment and expenses, and the whole process reflected ill on the practical application of the Drainage Act.”.(pp 14 – 15).
The Tribunal also made the following comments:
“Similarly, the engineer had no understanding that Section 66 of the Act applies in this case where lands are to be brought into the drain.” “The Act does not call for a popularity contest. The engineer has to cost out the various alternatives and then it is up to the person who would receive the special benefit to decide if she/he wants to have the work done or not.” (p 15).
“The engineer proposed to leave the work to be designed during construction. This is not acceptable. The work must be detailed in advance of construction.” (p 15).
“There is a fairly obvious Department of Fisheries and Oceans implication to the proposed work, especially in regard to the proposed relocation of the west branch of the Foster Drain. The engineer did not consult with DFO.” (p 15).
“The drains that are proposed to be added to the Foster Drain were privately constructed. It is possible, but unlikely, that no specifications whatsoever are needed for the drains to be added.” (p 16).
“This panel is of the view that the project must be referred to another engineer.” (p 16).
The Tribunal then ordered a series of measures to be undertaken by the new engineer (see Order of the Tribunal Paragraph 1(i) – (viii) pages 18 and 19 Tribunal Decision.)
In paragraph 2 of its Decision, the Tribunal indicated that the Municipality’s costs to date including, expenses incurred by the engineer related to the attendance at the Tribunal Hearing which might be charged to the drainage works, were limited to the cost of having one professional in attendance at the proceeding. The new engineer was then directed to assess the balance of the cost of the drainage work, subject to a special benefit to MTO, one-third to the Campbell property, one-third to the additional lands to be added to the drain and one-third over the entire watershed. At the same time, the Tribunal ordered as follows:
“The Municipality is to pay $1,000.00 to Mr. Robinson, which shall be added to the cost of the drainage works. The balance of Mr. Robinson’s account shall not form part of the costs of the drainage works.”
Mr. Robinson, a professional engineer, was a witness appearing on behalf of Mr.
Campbell. In accordance with Section 101 of the Drainage Act, in any application, appeal or reference under Sections 48, 54 and certain other sections, the decision of the Tribunal is final.
The Appellants in Court File number 300-03 did not take it upon themselves to appeal the report of Spriet Associates Limited Foster Municipal Drain 2004 under Section 47 of the Drainage Act to the Referee, pursuant to Section 106 (1). This is unfortunate because during the course of his evidence, John Spriet indicated that he attributed to the Drain, engineering costs and expenses as per the Tribunal Order for J.L. Richards & Associates Limited Report the sum of $47,900.00. However, in answer to a question as to the value of the work that the firm of Spriet Associates received from J.L. Richards & Associates Limited, Mr. Spriet indicated that there was perhaps a cost saving to Spriet Associates in completing its own work on the drain of $5,000.00. Since there was no appeal on this report or amendment of the grounds for appeal of Mr. Campbell, those expenses must remain with the drain, payable in accordance with the assessment schedule prepared by Spriet Associates.
I could not find fault with Spriet and Associates in allocating prior expenses as the Order of the Tribunal did indicate those costs were to be passed on to the drain, and the lack of an appeal of the 2004 report prevents my being able to rectify an inequitable situation for those assessed on the drain. Although those assessed on the drain did not receive a large amount of value from the report of J.L. Richards & Associates Limited, the lack of appeal on the Foster Drain 2004 prepared by Spriet Associates London Limited would suggest that parties were satisfied with the improvements proposed in the recommendations contained in the Report, with the possible exception of the Campbells who took it upon themselves to unilaterally relocate the drain, without consultation with the engineer before or during the period of their construction.
ISSUES
The following are the issues, which need to be addressed:
Are the Appellants in Court file No. 300/03 John D. Campbell et al, entitled to compensation from the Township for damages caused to the Appellants’ property by erosion and/or flooding incurred but limited to loss of soil, loss of use of farmland and inconvenience?
What is the basis for finding compensation is payable by the Township?
What is the nature of the damage caused?
Were the Appellants/Respondents in Court File No. 752/04 responsible for damages and/or a fine pursuant to Sections 82(1) and 82(2) of the Drainage Act?
Entitlement to Compensation for Damages
It was the evidence of John D. Campbell that the increased volume and velocity of the water caused damages in the form of erosion and flooding. This was confirmed by some extent by John Spriet who made the comment with regard to Exhibit 2(a), photograph No. 9, that the erosion of the east bank had to do with the restriction in the drain and, as a result, he said velocity of flow would increase.
In answer to further questions in his examination in chief, John Spriet indicated that if increased volume came into the drain velocity would increase. Added to this was confirmation by John Campbell that the area in question, where most of the erosion occurred, was relatively sandy soil. As a result, the drainage channel became widened in run off periods because the velocity had to increase to sustain the flow of the water.
Mr. Spriet also pointed out that at the bottom of the ditch, elevation was close to the original design. Mr. Spriet also provided in evidence confirmation that a way of gaining capacity is to either lower the ditch or raise banks. However, the hands of the Drainage Engineer were tied in this situation in that he was directed by the Tribunal (page 17) not to design a berm.
It was the estimate of John Campbell that 540 cubic metres of top and subsoil were lost from his property. It was further his evidence that this soil built up in certain areas, for example blocking his culvert and at the outlet of the drain in the Jock River. Exhibit 2(a), Picture No. 48, shows considerable build up of grass and weeds at the outlet. Given the very low gradient in the drain, maintenance needed to be more frequent. On page 13 of the Foster Drain 2004 Drainage Report, Spriet Associates recommended the Township undertake annual mowing of vegetation in lower sections of
The drain (Main East and Main West) to maintain maximum flow capacity. This did not occur during the period in which damages were claimed.
In his testimony, John Spriet noted that the diversion of the Main East Drain removed
108 hectares from the watershed, while the improper inclusion of lands only added
98 hectares or 242 acres.
Mr. Spriet indicated that in his experience as Drainage Engineer, he had no recollection of compensation being paid as a result of a person connecting lands to drainage works without the approval of Council of the Municipality under Section 66.
No case law was presented, by either the Appellant or the Respondent as to whether such claims had occurred; nor have I, in a cursory review of decisions, seen any cases referring to Section 66 of the Drainage Act or its predecessors, which allowed for damages. I find, as a matter of fact, that during the period, which is the subject of this hearing, the plug or dam, which was to prevent the additional lands from draining through the Main West Drain, was either washed out or tampered with in three successive years. This occurred after the Township had taken on itself to prevent the flow of water from the additional lands into the drain.
John Spriet, the Drainage Engineer, was very candid about this drain. On cross-examination with regard to sufficiency of outlet, he indicated that this drain obviously was sufficient outlet on the basis that it worked and therefore it was sufficient. Yet, during his Examination in Chief, Mr. Spriet indicated that the photos described in Exhibits 2(a) and 7(a) through 7(g) show that it doesn’t take much for this drain to flood. In further testimony he noted that the added lands, which are the subject of this controversy, should have been identified by the Engineer in 1968 to be included in the Drain.
Although the drain is built to a two year storm design, which means there will be flooding every second year, Mr. Spriet also indicated that, if in 1968 someone had decided to put in an upgraded grass waterway, the situation which led to this appeal would not have occurred. While in Mr. Spriet’s opinion flooding occurred because rainfall exceeded drain capacity, the Jock River backsurged or, as a result of a combination of both, he also indicated that the current configuration of the Main East and the Main West Drains, both exiting into the Jock River has merit as there is now a higher flow capacity while one drain would meander. Most importantly, he indicated that the drain itself was not at a depth for a proper outlet drain. Indeed, Mr. Foster, in his testimony, indicated that his ditch often flowed onto the Campbell’s property and vice versa.
Despite Mr. Spriet’s statement regarding the sufficiency of the outlet, I find that in accordance with the further evidence provided by Mr. Spriet that there was a lack of sufficient outlet. I further find that the costs of constructing or improving the drainage works to bring about sufficient outlet, i.e. blasting the bedrock in the Jock River, would exceed the amount of injury caused to low lying lands along the course of the drainage works. The original 1968 drain did not address Sections 66 and 31 of the Drainage Act. I base this finding on the evidence before me, without having received in evidence the report of Graham Berman and Associates Ltd.
- What is the basis for finding Compensation?
During his cross-examination, Mr. Spriet asked himself the question, are parties liable for damages for attaching to a drain without permission? In his 35 years of experience with drainage, he indicated that he did not know. He stated he had never dealt with it.
He further went on to query whether those who illegally hook up are they themselves liable in damages. No case law or review of legal authorities was provided in connection with the Municipality’s liability by counsel. Perhaps they took the position that if I found negligence, damages would flow. As often is the case with regard to drainage law, much of the law was established during the late 1800s and turn of the twentieth century. I quote from The Drainage Acts, Ontario, written by Frank D. Procter, 1908, at page 170, where it is stated.
“If a Municipality has constructed or operates, or permits the operation or user of, a drainage work in a negligent manner, or in, what is tantamount in law, a way which has caused any injury to others that might have been avoided by a more careful or reasonable exercise of its powers, it is answerable in damages for such injuries as are sustained as a consequence.
The general rule that a municipality is answerable in damages for all injuries sustained as a result of the negligent or improper construction or operation of a drainage work is clearly established.”
I find that in the face of a lack of evidence as to who instituted the illegal hook up of the additional lands to the Foster Municipal Drain, that the Municipality, which undertook through its Drainage Superintendent to place a plug in the drain on two separate occasions and which failed to monitor or prevent the removal of the plug, on the third occasion, is responsible for damages which may occur as a result of such negligence.
In addition, the time over which this matter was allowed to continue also flows, to a certain extent, from the lack of prudence of the Municipality.
In choosing its Drainage Engineer the Municipality has a duty to check to see whether that engineer has some experience in drainage matters. This is not a duty, which prevents new engineers from becoming involved with drainage matters, which is something that the Referee hopes to see in the future. However, as stated by the Tribunal, when there is a lack of experience the engineer tends to work with a more experienced engineer in learning the process. This did not occur. In fact, it appears the Municipality did not check the qualifications of Mr. Cormier in relation to his past drainage experience.
Further, the Municipality has the wider obligation of making sure that the drain as it was originally configured would in fact provide sufficiency of outlet. I find as a matter of fact on the evidence of John Spriet, which evidence was in essence confirmed by both Mr. Campbell and Mr. Foster, that the drain itself never had sufficient outlet. As a result, in accordance with Section 32, there should have been compensation of owners of low lying areas for the loss of use of acreage.
Finally, the Municipality has a duty under Section 79 of the Drainage Act to maintain the drain in order to prevent injury. Given that the report of Spriet and Associates Foster Drain 2004 indicates that annual maintenance should occur with regard to the Main East and the Main West Drain south of the Foster Road and, in light of the evidence that the last clean out occurred in 1993, the Municipality failed in its duty in this regard.
- What damages are John Douglas Campbell et al entitled to?
Mr. Campbell brought his claim under two headings. The first came in the form a claim for the costs of his Drainage Engineer, Andrew Robinson, Consulting Engineer, of Robinson Consultants Inc. A number of invoices were submitted in the form of Exhibit
3(a)-(h). These were invoices commencing on October 26th, 2002 to and including January 31st, 2005. However, these invoices were, for the most part, scrutinized by the
Drainage Tribunal. In its Decision on page 20 under the heading “Order of the Tribunal”, paragraph 3 stated:
“The Municipality is to pay $1,000.00 to Mr. Robinson which is to be added to the cost of the drainage works. The balance of Mr. Robinson’s account shall not form part of the cost of the drainage works.”
I note that invoices in Exhibit 3(a), (b), (c), (d) and (e) cover the period which came within the time prior to, or including the hearing of the Agricultural Food and Rural Affairs Appeal Tribunal. I will not alter the decision of the Tribunal, as this decision was entirely within their jurisdiction. Exhibits 3(f), (g) and (h) are matters I can deal with. Exhibit 3(g) however is simply a billing summary, which adds the GST to Exhibit 3(f) and has the effect of double charging GST.
However, there was some value to the drain in the work undertaken by Mr. Robinson; in that when Mr. Campbell decided to unilaterally alter the drain, I assume that he had the advice of Mr. Robinson as to at least the type of work to be undertaken. Alternatively, as a result of his involvement with Mr. Robinson, he acquired information in addition to his farmer’s knowledge regarding drainage matters. I note that Mr. Spriet’s testimony indicated that Mr. Campbell’s costs which he incorporated into the drain was a farmer’s price. He described such cost as “amazing”, and although the completion of the drain by Mr. Campbell would not have been the method that Mr. Spriet would have used, the drain now incorporates the work done by John Campbell. As a result, I am able to give damages for repayment of the work of the drainage engineer for Mr. Campbell after the hearing of the Tribunal in the amounts of $400.01 Exhibit 3(f) and $927.50 Exhibit 3(h).
The evidence given with regard to the cropping damages was not as consistent. Bruce Dewar of Ritchie Feed and Seed Inc. is Technical Manager at that company and has a BSC in Agriculture and is a Certified Crop Advisor. He created reports giving a summary of economic loss but was unable to provide me with the actual acreage of land which, in each year, was water damaged, nor for that matter, was Mr. Campbell able to provide such acreage. I received in evidence Reports described as Exhibits
10(a), 10(c), 10(d), 10(e), 10(f) and 10(g) as well as Mr. Dewar’s comments contained in Exhibit 10(h) and information regarding Mr. Dewar in Exhibit 10(b).
In providing his estimate of crop loss or total economic loss, Mr. Dewar advised that his view was that the lack of yield and losses arose from the location of the drain and excessive moisture. Mr. Dewar suggested that the input costs should not be deducted from the economic loss because the grain harvested by Mr. Campbell was fed to his animals and the straw was used internally. I cannot accept this evidence. In redirect with regard to the first year’s total economic loss of $4,430.00 for 2002, Mr. Dewar provided a figure based on the 2003 calculations of $2,268.00 as the total input costs. I find that reducing input costs from the calculation of Mr. Dewar, this left a balance of $2,162.00 as the total economic loss for 2002 for Mr. Campbell’s barley.
In the year 2003, the crop loss statement provided by Mr. Dewar for the 18-acre field described $2,268.00 for crop inputs. With the total revenue from the acres, which were cropped, and the remaining acreage, which was cut with a haybine, there was expected revenue of $7,155.00 less the actual revenue of $740.00, leading to a crop loss claimed of $6,415.00.
Again, Mr. Dewar calculated this without deducting the input costs. When that is deducted the loss properly claimed for 2003 is $4,147.00 from the 18 acre field of barley.
In addition in 2003 there was a 6 acre field, which had expected revenue from barley and straw of $2,197.50. The actual revenue was zero as the crop was drowned out. A total crop loss was claimed at $2,197.50. However, again input costs were not deducted. I find that the expected revenue from this field should have been, net of input costs, $1,171.50.
In 2004 there was again a claim for the 18 acre field and the 6 acre field. Again the field was planted in barley as it had been throughout the period claimed by Mr. Campbell. Against actual revenue for barley and straw of $1,935.00 there was expected revenue of $7,155.00, which led to a claim of gross crop loss of $5,220.00. As before, however, inputs were not deducted leading to an actual crop loss of $2,880.00 for the 18 acre field. Likewise with the 6 acre field which again was planted in barley and seeded down with grass, there was an expected revenue of $3,997.50 but an actual yield of $750.00 leading to a crop loss claim of $3,247.00 which again did not take into account the inputs of $1,050.00. This led to an actual crop loss $1,417.50.
Mr. Campbell is further claiming for a crop loss for the 2005 season.
On cross-examination Mr. Dewar acknowledged that if there was a crop allowance given by Mr. Spriet under the drain it might solve the claim with regard to the crop loss. I accept Mr. Spriet’s allowance for crop loss on behalf of Mr. Campbell under Section 30 damages in the amount of $1,740.00. I further point out to counsel that as no appeal was lodged with regard to the Foster Drain 2004 Report, I am unwilling to change the engineer’s calculations. Finally, this allowance is very much in line with the calculations supplied by Mr. Campbell’s expert in that the flooding had then been corrected and damage would arise only now from the slow remediation of soil. Mr. Spriet confirmed that the allowances he calculates pursuant to Section 30 are on a declining scale starting at a 70% crop loss and then moving down each year.
I am somewhat surprised to find that Mr. Campbell cropped the land exclusively in barley four years running, while Mr. Foster in the abutting parcel for the past three years alternated between corn, oats and corn thereby increasing his yields. No opinion was ventured by Mr. Dewar as to whether there would be a reduction in crops as a result of lack of rotation, however, I am satisfied that there will be. I refer parties to a Ministry of Agriculture and Food publication produced in concert with Agriculture Canada, Best Management Practices-Field Crop Production at page 22, which highlights the need for crop rotation. It should be noted that one of the benefits of crop rotation according to this booklet is that it can also reduce soil erosion and runoff. In addition, the parties should be aware of the information contained in the Agronomy Guide, Publication 811 of the Ministry of Agriculture, Food and Rural Affairs.
Since 2002 is the first year on which we have information regarding the use of barley, there would be no loss through continuous cropping. However, during 2003 and 2004 there would be reductions in yield based on the information in the Best Management
Practices publication described above. I find on a somewhat arbitrary basis that there should be a reduction in the damages for 2003 and 2004 of 15% in the amount of revenue loss given the fact that there was continuous cropping. The revised damages, therefore, for those years are $3,525.00 for the 18 acre field and $995.00 for the 6 acre field in 2003. In 2004 the reduction in yield leads to damages which I find to be $2,448.00 for the 18 acre field and $1,204.00 for the 6 acre field as actual crop loss.
Finally, it appears that the drain for the reasons given above suffers from insufficient outlet and, as indicated by Mr. Spriet, the costs of continuing the drainage works to a proper outlet would be far greater than the costs of compensation to the landowner for periodic flooding.
During his evidence, Mr. Campbell did not provide physical calculation of the area that suffered from dampness nor did Mr. Dewar help in this regard. All I am left with is the information, which is before this Referee in the form of the Decision of the Tribunal. In that Decision the Tribunal noted that Mr. Robinson estimated the land value in the area of $1,821.00 per acre while Mr. Cormier of J L Richards estimated the value at $1,500.00 per acre. The Tribunal was persuaded as to the correctness of Mr. Cormier’s estimate and I accept their calculations. Since I am not provided with adequate information with regard to the acreage which is subject to continuous flooding with the exception of calculation by Mr. Cormier of .42 acres, I have arbitrarily set the acreage that was permanently damaged because of the low lying nature of the property at 1 acre with a value of $1,500.00. With the award of this compensation, no further claim for damages can occur with regard to this parcel, unless the acreage flooded in the future can be explicitly shown to be greater than the acreage I have found to be continuously flooded, unless there is future lack of maintenance or some other cause other than lack of sufficient outlet which floods an area of greater than 1 acre.
- Were the Appellants/Respondents in Court File 752/04
Responsible for damages and/or a fine pursuant to Sections
82(1) and 2(2) of the Drainage Act?
Under Section 82 of the Drainage Act, the Municipality may sue for damages to drainage work against any person “who destroys or injures in any way a drainage works” and “any damages ordered by the Referee shall be paid to the Municipality and used for the construction, improvement, maintenance or repair of the drainage works.”
In this particular situation, the Municipality’s counsel advised the Referee that they were abandoning a claim for damages. I agree with their position. Given the information that has been received from the Engineer, John Spriet, the rerouting of the drain, although not in accordance with the Drainage Act, was done at a saving of great cost to the drain and hence the assessed owners. Mr. Spriet also indicated that there was some benefit in the two outlets. Finally, I note the Municipality did not proceed against other owners for their unilateral acts in altering this drain.
However, the Municipality did not abandon its claim with regard to the offence found in Section 82(2). In this particular situation I find John Campbell specifically guilty of the offence of filling up the drainage works known as the Main West Drain as it traversed his parcel, being Lot 23, Concession 9. While I do not find for the reasons above that there are damages payable, I am setting the fine for such filling up of a drainage work at $1,000.00 to be deducted from the amount of damages payable by the Municipality on Court File No. 300-03. I find that Mr. Campbell became fixated on the relocation of the Main West Branch and, although the process did not seem to work for him with the report of the original engineer, the issue was directly before Spriet Associates through the order of the Tribunal, when Mr. Campbell took it upon himself to make the changes.
There has been too much self-help on this drain. All parties would be well advised to work with the Municipality in the future to ensure the adequate functioning of the Foster Drain.
I am allowing no compensation for Mr. Campbell with regard to inconvenience. All parties must work together on a municipal drain; meetings need to be attended so that the Engineer can come up with the most workable solution.
In summary, Mr. Campbell is entitled to compensation for his engineer in the amount of $400.01 and $927.50, crop losses for 2002 in the amount of $2,162.00, crop losses for the year 2003 in the amount of $3,525.00 and $995.00, crop losses in the year 2004 in the amount of $2,448.00 and $1,204.00 together with $1,500.00 for the permanent loss of approximately 1 acre through the lack of sufficient outlet. These damages total $13,161.51, which with the deduction of the $1,000.00 fine, leads to total compensation payable of $12,116.51 to the Appellants in Court File no. 300/03. These damages are not to be charged to the Foster Municipal Drain. In accordance with Section 118(2) of the Drainage Act, the damages and costs are to be borne by the Municipality and payable out of the general funds of the Municipality.
Costs in this matter shall be payable on a partial indemnity basis. However, given that a conviction was also registered under Court File No. 752/04 there will be no costs of the day for the third day of the Hearing. Costs will be given to the Appellant John Campbell et al, for two days of trial inclusive of preparation, GST and disbursements,
which I set at $4,000.00.
DATED this 27th day of July, 2006.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE