ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Ireland v. West Elgin (Municipality)
2006 ONDR 3
DATE OF DECISION:
2006-11-17
2006-03
STATUTE:
Drainage Act
HEARING:
2006-06-26
B E T W E E N:
KELLY IRELAND and WAYNE IRELAND Appellants
- and -
THE CORPORATION OF THE MUNICIPALITY OF WEST ELGIN Respondent
APPEARANCES:
Counsel for the Appellants Counsel for Respondent
Amy C. Dale, Jennifer Stirton,
Gunn & Associates, McCall Dawson Osterberg Wallace
Barristers & Solicitors Barristers
D E C I S I O N
This action was commenced by a Notice of Appeal. After service of a Statement of Defence, parties moved by telephone conference before the Referee for a procedural order to proceed by way of an application with affidavits, cross-examination, argument upon affidavit and transcript evidence.
The Application was heard the 26th day of June, 2006 for an Order compelling the Respondent, The Corporation of the Municipality of West Elgin, pursuant to s.79 of the Drainage Act, to make whatever repairs were necessary to the Hessenauer Drain in the Geographic Township of Aldborough, now in the Municipality of West Elgin. The Appellants also requested an Order that the Respondent pay damages in the amount of $23,000.00 as compensation for the Municipality’s failure to properly maintain its drainage works, together with a claim for their costs in this proceeding.
Under s.79(1), a Municipality is compellable on forty-five (45) days notice in writing served upon the Head or Clerk of the local Municipality, to perform the duties conferred upon it by the Drainage Act, to maintain and repair a drainage work.
Under s.79(2), a local Municipality, whose duty it is to maintain, is not liable in damages “until after service by or on behalf of such person of the notice referred to in subsection (1)” has occurred.
At issue is notice, or the apparent lack of provision of notice in writing, and the obligation of the Municipality after notice was received, to remedy the claimed lack of maintenance and repair of the drainage works.
Kelly Ireland and her contractor, William Smith, provided affidavit evidence in the Appellants’ Affidavit Brief.
By way of reply, the Municipality supplied the affidavit of its Drainage Superintendent, John Ungar. Subsequently, there was a cross-examination on the affidavit of John Ungar. The important points from these affidavits, and those that arose from the cross-examination on this affidavit are as follows:
The Hessenauer Drain is a Municipal Drain that runs along Silver Clay Line in the Municipality of West Elgin. Silver Clay Line is a road allowance located between Concessions 11 and 12 in the Geographic Township of Aldborough. The Hessenauer Drain was completed in 1953. According to Mr. Ungar, it was to replace the Schmitt Award Drain, which was an award drain that had been installed in 1907. The documentary evidence showed that the Hessenauer Drain ran west to east along Silver Clay Line, while the Schmitt Award Drain ran from north to south, intersecting the Hessenauer Drain at right angles in the vicinity of the Ireland property.
Although the Irelands have a different version of when verbal notice was given to the Township, the Drainage Superintendent indicated that on the advice of a local drainage contractor, he attended at the Ireland’s property to investigate a flooding problem, which he had been advised by the drainage contractor had occurred. At the time of his attendance at the home of the Ireland’s on March 8th, 2004, the first flood had occurred. The Ireland’s expressed the opinion that the Hessenauer Drain, which was located on the north side of Silver Clay Line opposite their house, was malfunctioning and causing water to back up into their basement.
It was the Drainage Superintendent’s view that the Ireland’s property was not within the watershed serviced by the Hessenauer Drain. This was stated in his affidavit and reconfirmed in cross-examination of the 30th day of November, 2005.
Mr. Ungar further stated that around this time a landowner in the area, John Miller, who was the principal of 571419 Ontario Limited, petitioned for a repair or improvement of the Hessenauer Drain. The petition, according to Mr. Ungar, was made pursuant to s.78 of the Drainage Act. (cross-examination of Mr. Ungar November 30, 2005 p.19, question 112).
In August of 2004 Mr. Ungar was further called to the Ireland property regarding a second flood in the Irelands basement. At that time he advised the Irelands that their property was unlikely to be hooked into the Hessenauer Drain, as their property was not within the watershed serviced by the Hessenauer Drain. He further stated that they would have to prove to him that they were in fact hooked to the Hessenauer Drain.
Despite this position, the Drainage Superintendent advised Kelly Ireland around October 2004 that the Hessenauer Drain would be flushed. The start of flushing the drain did not occur until December 14, 2004 but was not completed on that date. The crew returned on January 10, 2005 to finish flushing the drain. Throughout this period, the Drainage Superintendent described the drain as functioning, but doing so slowly.
On January 4th, 2005 the Superintendent attended at the Ireland’s property in connection with a survey for the Hessenauer Drain. According to Mr. Ungar’s affidavit, the drainage engineers had completed a survey in accordance with the petition made under s.78 of the Drainage Act. He advised it was determined that the Schmitt Award Drain route, which followed a different route than the Hessenauer Drain, was more in keeping with the natural elevation of the surrounding land. According to the Superintendent, he had no recollection of a claim of flooding on that day.
On February 15, 2005, after a further complaint of flooding, this time in the form of a letter from the Appellant’s Solicitor to the Municipality, there was another inspection by Mr. Ungar.
HESSENAUER DRAIN
Prior to the Hearing of the Application, the Respondent’s Solicitor in accordance with s.24 (1) of the Rules of Practice and Procedure R.R.O. 1990, Reg. 275, produced a list of all documents within the possession of the Municipality of West Elgin relating to the relevant drainage works. Among the documents that were produced were:
the Plan and Profile for the Schmitt Award Drain. (Exhibit 6)
the written report dated December 30th, 1953 from McCubbin, Brisco & Todgham recommending construction of the Hessenauer Drain (this formed part of Exhibit 1 in the Undertakings Brief of Gunn & Associates).
the reapportionment of drainage assessment due to a land severance application regarding the Scheckenburger property. (Exhibits 3 and 7).
an Owners & Mapping document updated to September 28, 2004 (Exhibits 2 and 3).
January 2005 Plan and Profile for the new Hessenauer Drain prepared by Spriet Associates (Exhibit 1),
In addition, the Referee received documentation on the date of hearing the application that had not been included in the document briefs or productions of either side, being;
(a) June 28, 2005 Plan and Profile for the new Hessenauer Drain together with the Report of Spriet and Associates of the same date.
(b) the letter of Gunn & Associates dated February 1, 2005 addressed to the Municipality of Elgin providing written confirmation of flooding.
I find as a result of the supply of the documentation, upon review of the affidavits and the cross-examinations, that the following represents the factual situation with regard to the Hessenauer Drain at the time of the flooding.
According to the Report of McCubbin, Brisco & Todgham dated December 30, 1953, there is no indication that the Hessenauer Drain was to replace the Schmitt Award Drain. (Exhibit 1 Tab 1).
Contrary to the statements of the Drainage Superintendent in his original affidavit and cross-examination, the Municipality had to be aware through an apportionment of drainage assessment that the Hessenauer Drain included the Appellants’ property within its watershed, as their immediate predecessors in title, had to have a split of assessment on December 3, 2003 in order to apportion future maintenance and repair costs for the Drain.
Further, an “Owners & Mapping” spreadsheet update as at September 28, 2004 showed the interest of Mr. and Mrs. Ireland as owners assessed under the drain.
Although the Drainage Superintendent had indicated that a new petition was received pursuant to s.4 of the Drainage Act, the report of Spriet Associates was given pursuant to both s.78 and 4 of the Drainage Act. This report appears to confirm the prior request of Mr. Miller, on behalf of his Corporation for repairs, as well as several owners’ petition for what I assume were improvements to be made on the drain.
According to the Report of Spriet Associates, in addition to the evidence provided regarding lack of repair by the Appellants, the owner of the property on the northerly side of Silver Clay Line indicated the existing drain installed in 1954 was no longer functioning properly and did not provide sufficient outlet for his lands (p.1 Spriet Associates Report, Exhibit 5). The report also indicated in its field investigation and survey that the ground profile along the route of the original Hessenauer Drain rose about two (2) feet from the lowest point of the drain in Lot 10, Concession 2 before falling again to its outlet at the Hookaway Drain.
After noting that the 1954 Hessenauer Drain did not follow the natural outlet route (which was described in the report of Spriet Associates as the Schmitt Award Drain installed in 1907), the Engineers decided to survey the route along this natural run and do a cost and design comparison. This survey revealed there was a consistent fall along the entire route of the former Schmitt Award Drain.
As a result of recommendations of Spriet Associates, a new drain was to be constructed following the natural low run, formerly occupied by the Schmitt Award Drain. Portions of the Hessenauer Drain were abandoned, specifically in the area that lead to the flooding of Ireland’s property.
A new closed drain described as Branch 1 Hessenauer Drain was installed to service the Ireland’s property; while Branch 2 formed that part of the original Hessenauer Drain along the north side of Silver Clay Line outletting from a catch basin in the approximate area where the Schmitt Award Drain was located to the Main Drain, fed from another catch basin which had been installed on the Hessenauer Drain flowing south to north under Silver Clay Line at Station O+223 thereby reversing the flow of the original drain. The remaining portion of the original Hessenauer Drain was to continue in its usual direction toward the Hookaway Drain; this was described as Branch 3. The Main Branch of the relocated Hessenauer Drain, in essence, represented a reestablishment of the Schmitt Award Drain.
According to the list of documentation supplied by the Municipality’s Solicitor, described previously, there appears to have been a repair to the drain in 1980. Exhibit 2 submitted in this application shows the location of three (3) catch basins on the Hessenauer Drain, where only one (1) was required by the report in 1953. There was no documentation provided by the Municipality that would suggest that these improvements to the drain were done with the benefit of a report. They may have represented part of the repair done in 1980.
The evidence of William Smith, the contractor for the Appellants, was that the Appellants’ basement drain was hooked into a 5” clay tile at the southeast corner of the house. The contractor confirmed that there was a 4” clay tile running along the perimeter of the back wall of the house and a 4” clay tile running along the front portions of the house, with this latter tile being plugged solid. It was the position of the contractor that the foundation drainage for the house was indirectly hooked into the malfunctioning Hessenauer Municipal Drain via a gravel vein (Appellants’ Affidavit Brief, Tab 2, p.6, para.14). The contractor put forward the argument that a gravel vein located slightly under the foundation would, as a response of the failure of the water in the Hessenauer Drain to adequately escape the roadway and catch basins adjacent to the Ireland property, have the effect of hydraulically putting water to the basement of the Ireland property.
In cross-examination on this position and in response to a question regarding the basement drain, Mr. Smith advised that the 5” tile was hooked “to an agreement drain that was there from years ago.” (cross-examination of William Smith’s affidavit, p.16, question 98). The contractor went on to elaborate that it was his understanding that the “agreement drain is looked after by the people that are hooked into it.”
The Municipality’s reply evidence in connection with this flooding, found in the cross-examination of Mr. Smith, stressed that there was a somewhat higher elevation of the home of the Ireland’s to the south of Silver Clay Line. The Referee was not aided in this matter by the fact that no expert evidence, other than the practical experience of Mr. Smith, was given regarding the effect of ground water on gravel veins. Nor could the Respondent explain why the Ireland’s property was within the assessment area of the Hessenauer Drain, in light of the fact that there was a higher elevation of the front lawn of the Ireland’s home than the roadway and that the natural run of the Schmitt Award Drain located to the east occurred to the south. Nor could Respondent’s Counsel explain what benefit the Hessenauer Drain would have in removing water from the vicinity of the Ireland home with the drain being located on the north side of Silver Clay Line.
Based on the evidence presented, it is my assumption that the Schmitt Award Drain appears to have been terminated at the original catch basin established for the Hessenauer Drain in 1953, since the Schmitt Award Drain partially served the lands to the north of Silver Clay Line. However, I am also satisfied that based on field investigations of the Appellants’ contractor, William Smith, the Schmitt Award Drain was still in existence to the south of Silver Clay Line and could have provided part of the outlet necessary for the removal of water from the foundation of the Ireland’s home, had it been adequately maintained. It does not appear that the Irelands were aware of the existence of the Schmitt Award Drain, nor were they aware that maintenance with regard to Mutual Agreement Drains or Award Drains is the obligation of the owners who, under the original Award Drain, can be required to maintain certain sections.
Because the property the Irelands purchased had recently been severed, the Irelands did not have “on premises” access to the Schmitt Award Drain, however, it was evident from the existence of the tile that prior owners of their home had been indeed hooked to the Schmitt Award Drain.
As a result, I find the disrepair; lack of maintenance and poor design of the Hessenauer Drain caused the addition of water to the area surrounding the Ireland’s foundation. The removal of that water could have been facilitated by the Irelands’ maintenance, along with the other landowners, as required of the Schmitt Award Drain. Unfortunately, they had no knowledge of this drain until this damage occurred.
I further find that the Drainage Superintendent’s unfortunate reliance on the Hessenauer Drain Plan, rather than looking at the entire collection of documentation surrounding the Drain, slowed the Municipality’s response to an unacceptable and negligent level. Inexplicably this was done in the same time frame as the request for repair was made under s.78 by 571419 Ontario Limited (Miller).
During the course of submissions of counsel, I provided them with Watson v. the Corporation of the Township of Admaston and Corporation of the Township of Bromley. This was a decision given November 9th, 1994 by Drainage Referee Delbert A. O’Brien Q.C. delivered in the County of Renfrew. In this decision the Referee confirmed that under s.79, written notice is not required in cases of flooding caused by ice or snow. Counsel at this hearing, however, confirmed that neither ice nor snow were a factor in the flooding. I found no evidence in the affidavit of Kelly Ireland as to ice and snow being cited as a factor in the flooding.
In a later decision in the Court of the Drainage Referee, File No. 5041 1995 Victor Kelch v. Township of Romney, in the Ontario Court (General Division), Small Claims Court, Chatham Ontario, Referee O’Brien confirmed on page 8 that
“notice is a condition precedent to a claim for damages resulting from the lack of repair of a drainage works.”
In essence, notice is required before any liability accrues. I agree with this position.
A further difficulty is whether negligence occurred subsequent to notice, as the Referee has the power to compel repairs, but only forty-five (45) days after receipt by the Municipality of the notice. As a result, the Municipality is allowed some lead-time in dealing with issues of non-repair and maintenance.
The Appellants have made various comments regarding the actual notice received by the Municipality. I am satisfied, based on the information before me, that the Municipality could have been aware of the problem with regard to the drain through the visits of the Drainage Superintendent to the property and through the requests for repair of the drain from the abutting landowner.
The Decision of Referee Clunis, Tomsett v. Township of Toronto and the Minister of Highways for the Province of Ontario dated October 25, 1967, provides guidance with regard to the nature of constructive notice. In that decision, the Referee states
“the attendance of Township workmen in answer to her telephone calls, and their opportunity to view the area while attending is the only reliable evidence of constructive notice to the Township of the possibility of the flood developing.”
The Referee continued:
“that there was no basis for the conclusion that the opportunity for observation by Township employees who responded to Mrs. Denham’s call, should constitute constructive notice to the Township of a flood condition existing or likely to arise as a result of the blocking of the highway culvert.”
The Referee then went on to describe that in this particular situation, the Plaintiff based his right to damages on non-repair of a highway and on negligence and in nuisance. The Referee further stated,
“A municipality may have an obligation to take precautions to prevent flooding in respective highway culverts under its jurisdiction that have a history of blocking with resulting flooding.”
In this situation I think the same reasoning may apply with regard to catch basins. With the addition of two catch basins since establishing the drain, it seems obvious that there has been a history of flooding in connection with the Hessenauer Municipal Drain.
While I have taken the position that damage claims can only arise out of those damages which occurred after notice was given, according to the facts as I find them, flooding occurred two separate times after notice was given to the Township. In arriving at damages, I find that the damages to be awarded are only those damages occurring after the letter of the Appellants’ Solicitor was received.
I do not find that the petition provided by Mr. Miller can represent notice on behalf of the Irelands. I refer to Eek v. King (Township) [1970] 20.R. 700 p.4, para. 16 in the Appellants Book of Authorities. In this decision, Referee Clunis quotes with approval a decision of Referee G.F. Henderson.
This Decision was the first occasion in which the new s.80 (a) enacted in 1911 came before the Count for consideration. Section 80 (a) is the predecessor of the current s.79 provision. Referee Henderson states:
“it is the duty of landowners along the course of a drain to keep track of its state of repair, and that when anyone finds that the drain is becoming out of repair to such an extent that he, as an owner, may reasonably anticipate damage to be caused to him, it is his duty then to notify the Council of the lack of repair and of the probability of damage.”
“The Council is not obliged in this respect to watch a drain from month to month, and the Council does not become liable in pecuniary damage to any owner of land whose property is subsequently injuriously affected by reason of non repair unless and until after service by or on behalf of such owner of a notice in writing.”
“There was no notice of non repair given to the Township by the plaintiff or by anyone else prior to 1912 and therefore insofar as the plaintiff’s damages for 1912 were due to non repair, as distinguished from a defect in original construction, the plaintiff cannot succeed.”
I view the statement of Referee Henderson as quoted by Referee Clunis as a clear statement of the law. As a result, damages cannot flow for non-repair until notice was given.
Referee Clunis, in the same decision stated:
“(p.3, para.11 Book of Authorities). I think the laws will establish that once a landowner has proven he has sustained damage by way of the failure of the municipality to keep the drain in proper repair, that there then arises an onus on the part of the municipality, if it contends that the damage suffered was not wholly attributable to the lack of repair, to prove what portion was brought about by other causes.”
In this particular situation, I find that the damage was not entirely caused by the lack of repair and refer to the failure of the Appellant to properly maintain the Schmitt Award Drain.
Finally, I address the issue of defect in original construction. The report from Spriet Associates indicated that there was a rise in the land to the east of the catch basin in the original Hessenauer Drain. The report proposes rerouting part of the drain westward to join in with the Main Drain, which was in the vicinity of the Schmitt Award Drain. While this might be viewed as a defect in construction, the defect in my opinion is one of degree. Although the severance creating their parcel may have prevented the Irelands from easy access to the Schmitt Award Drain, I would assume that the lack of prior difficulties, being 20 years since the previous repair, meant that, in normal circumstances, the drain was performing adequately. My assumption is that the house was in its present location for approximately 40 years, based on the evidence of the Irelands, with no problem having occurred. As a result, although the engineering on the drain was somewhat suspect, I do not find that the damages that arose were caused by the defect in original design.
As a result, damages arise in accordance with s.79(2).
DAMAGES
We have received damage briefs from the Irelands. Part of the damages, including damage to carpet etc. occurred as a result of the initial flooding in early spring of 2004. The Irelands had not given written or verbal notice to the Municipality at the time of the first flood regarding the lack of repair of the Hessenauer Drain. As a result, I find, in the absence of such notice, that the Municipality cannot be responsible for these initial damages.
After the first flood caused the initial damage, subsequent floods, in effect, rendered the basement of the Irelands uninhabitable, as there were approximately five (5) floods in total until the improvements of the Hessenauer Drain occurred.
The Irelands retained the contractor, William Smith, to do remedial work around the premises. Three estimates were given, but the actual work that has been completed to date is found on an invoice dated December 1st, 2005. This invoice, including GST was for $7,650.50. I was advised by Counsel for the Appellants that the amount of this invoice is to be reduced at their own request by 22%. This reduction is found in the affidavit of William A. Smith, (para.13 Appellants Affidavit Brief, Tab 2); Mr. Smith pointed out that certain improvements that he did as part of the invoice, were not directly necessary as a result of the malfunctioning of the drain.
In the absence of contrary evidence I accept this calculation. The Appellants may suggest that the reduction of the account by 22% suggested by Mr. Smith represents the sole betterment which occurred at this premises, at the hearing I laid before Counsel the suggestion that additional betterment has occurred in this situation. No percentage regarding such further betterment was suggested by either Counsel. I find that on the issue of betterment, at least 25% of the remaining amount claimed on the invoice of December 1st, 2005 could be ascribed to betterment, in that the foundation of the house was many years old at the time of the flooding. It appeared the house had been constructed in the 1960’s and did not have the benefit of modern waterproofing techniques or improvements which came as a result of the work of the contractor as described in the December 1, 2005 invoice.
In addition, I find that the Appellants contributed to their difficulties once the damages occurred by failure to more thoroughly investigate the existence of the Schmitt Award Drain, its location and maintenance. If the basement tile had been operating properly, there may have been a further lessening of damages. As a result of this negligence on the part of the Appellants, I further reduce the damages by 15%. I calculate damages to be $3,580.43, being the original invoice of $7,650.50, less 22% ($5,967.39), less 40% ($3,580.43) for betterment and contributory negligence.
The Irelands also claim damages for the interior of the basement. An initial estimate was given on February 10, 2005 in the amount of $6,532.35. This estimate included the installation of 50 yards of carpet. According to the affidavit of Kelly Ireland, the damages associated with this estimate occurred after the third flood on December 31st, 2004 and led to a call on January 4th, 2005 to the Municipality. Subsequently, the Solicitors for the Irelands sent a letter to the Municipality on February 1st, 2005, with the estimate of William A. Smith described above. It is obvious that much of the damage with regard to the basement occurred before written notice was provided to the Municipality by letter dated February 1st, 2005.
It is also somewhat difficult to understand why there was a delay in obtaining the estimates after the summer of 2004 when the second flood had occurred. Kelly Ireland states that the property insurers concluded that the damage from their basement flooding was not an insured peril (Appellants Affidavit Brief Tab 1 p.5). The Irelands indicated that they needed to get rid of the carpet after the first flood (para.9 Appellants Affidavit Brief, affidavit of Kelly Ireland). As further flooding occurred, more damage occurred. (Appellants Affidavit Brief, affidavit of William Smith para.9, p.4).
In fact, the estimate given on February 10, 2005 of $6,532.38 was expanded as a result of increased material cost and a significant increase in the amount of work necessary to remedy the basement damage. The second estimate dated June 5th, 2005 was for $8,955.90, being an increase in costs of $2,423.00. While Mr. Smith indicates that the increase may have related to partially increased material costs, he also claimed the increase related to further damage which occurred to the premises. Again, the issue of betterment occurs.
While the carpet that was lost at the original flooding cannot form part of the claim, since it has not been separated in the estimates, I am making the assumption that the increase in material costs for carpet were minimal. Betterment still occurs and as a result, although I am prepared to award $2,423.55 for damages as directly caused by the delay in repair and further flooding, being the increase between estimates, I am reducing this by 40% to $1,454.13.
The Respondent’s Solicitor did not make a submission regarding the estimate for landscaping of $1,926.00. In light of the damages to the exterior of the foundation, I am again suggesting the same reduction for betterment and the contributory negligence of the Irelands, at 40% to $1,155.60.
The total damages payable to the Appellants are $6,190.16.
These damages are not to be charged to the Hessenauer Drain. In accordance with s.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.
I further find that the Appellants shall have their costs on a partial indemnity basis.
If the parties are unable to agree on an amount which should be payable by the Corporation of the Municipality of West Elgin for costs, written submissions can be made within 90 days of the date of this Judgment by the Appellants with further submissions by the Respondents within 30 days thereafter.
DATED at Strathroy, Ontario this 17th day of November, 2006.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE