Counsel for the Appellants Counsel for the Respondent

Donald R. Good Janet E. Bradley

Donald R. Good & Associates Borden Ladner Gervais LLP

Lawyers Patent & Trade-mark Agents

D E C I S I O N

This action was commenced by a Notice of Appeal issued February 2^nd^, 2006 on behalf of the Appellants, Ken Allan and Neris Allan.

After a procedural Order dated the 25^th^ day of August, 2006 ordering disclosure between the parties, a trial of the issues was held on November 9^th^ and 10^th^, 2006 at Perth. The Appellants’ Notice of Appeal requested the following relief:

An Order to declare the Engineers Report approved by the Respondent under by-law 05-102 to be invalid or inadequate.
An Order, in the alternative, to declare the petition for a municipal drain approved by the Respondent under by-law 05-102 to be invalid or inadequate.
An Order requiring the Respondent to include in the cost of the Stanley Road Municipal Drain the costs incurred by the Appellants as a result of illegal activities of the Respondent that resulted in injuring liability to the Appellants’ land.
An Order requiring the Respondent to pay compensation to the Appellants for damages caused to the property of the Appellants by erosion and flooding, including but not limited to loss of soil, loss of use of farmland and inconvenience.

The Appellants further requested costs and other relief.

During opening submissions, the Appellant’s Solicitor, withdrew the request for the relief contained in paragraph 2 of the appeal.

A further issue arose from the prior history of this matter, with the request brought by a motion to the Ontario Superior Court of Justice, Court file number 97-0865, that unresolved matters be transferred to the Drainage Referee, pursuant to Section 120 of the Drainage Act. Section 120 (1) of the Drainage Act states:

Where an action is brought or is pending and the court in which the action is brought or is pending or a judge thereof is of opinion that the relief sought therein is properly the subject of a proceeding under this Act or that it may be more conveniently tried before and disposed of by the referee, the court or judge may, on the application of either party, at any stage of the action make an order transferring it to the referee on such terms as appear just, and the referee shall thereafter give directions for the continuance of the action before him or her. Drainage Act, R.S.O. 1990, c. D.17, s. 120 (1).

Before the Notice of Appeal in this matter was served on the Respondents, an action had been commenced by the Appellants in the Superior Court of Justice in Lanark County, Court file number 97-0865. I did not have benefit of all of the Court documentation from this file, but was provided with Reasons for Decision of the Honourable Justice J. McWilliam dated November 14, 2003 in the Ontario Superior Court of Justice. The style of cause in this action was Neris Allan and Kenneth Allan v. The Corporation of the Township of North Burgess.

The Endorsement/Reasons for Decision arose from the action commenced in 1997 in which damages were claimed from 1995 forward until the time of trial, which damages resulted from two works of the Township of North Burgess. According to Justice McWilliam, the actions taken were: “One was ‘blasting a rock cut to improve the flow of water within the natural watercourse flowing through Concession 9, Lots 8, 9 and 10 including the plaintiff’s property. A second action was allowing the flow of water from the west to substantially increase, particularly by cleaning out the rock cut in 1994 or 95, without regard to whether or not the lands of the plaintiffs might be unnaturally affected.” Reasons for Decision McWilliam J., Exhibit #2, Tab M.

BACKGROUND

Allan v. Township of North Burgess, Court File No. 97-0865.

The important facts in this matter were obtained from the Reasons for Decision of Justice McWilliam and one exhibit from that trial. Kenneth and Neris Allan purchased 68.9 hectares (212 acres) in 1995 from Mr. and Mrs. Jim Bell. Before that they had rented these lands from 1978 onward until their purchase.

Prior to selling these lands, Mr. and Mrs. Bell had created a strip development along Stanley Road in which Mrs. Carol Bell reserved a couple of lots and an access route through to Stanley Road from the agricultural portion of their property. Most of the cropping land in the original Bell property at Lot 9, Concession 9 was purchased by the Allans. On the lands purchased by the Allans is a natural bowl or compression. On Lots 10 and 11 in Concession 9, the abutting landowners John and Carol Armour owned 118.2 hectares. This parcel also had a similar compression, described as a larger bowl than the Allans, containing wetlands.

Separating the bowl or indentation on the Armour property from the bowl on the Allan property was a rock ridge located on the Armour property. Justice McWilliam found that the Township, on or before 1970 or perhaps as late as 1975, blasted through the rock ridge between the two adjacent bowls to alleviate the build-up of water on the Armour property and more importantly to reduce its effect on Stanley Road and other parcels in the watershed to the south and to the west. See appendix “A” Stanley Road Municipal Drain, Drawings 1,3 and 4, Exhibit #4 Stanley Road Municipal Drain Final Report prepared by McIntosh Perry Consulting Engineers Ltd.

Justice McWilliam found that many years later beaver dams had blocked the rock ridge where it had been dynamited and further that some cleaning was done of the beaver dams between 1994 and 1995. Justice McWilliam stated that the beaver dam had in essence reinstated the rock ridge and that its removal opened up the artificial waterway created by the Township.

Justice McWilliam decided that the conduct of the Township in this matter was comparable to a landowner in that “liability was found when the landowner, by artificial means, increases the flow of water onto the lower lying land as by widening a natural cut in a ridge or cutting a ditch.”

Justice McWilliam ruled for the plaintiffs, the Allans, stating as follows:

Injunctive and Damage Relief. In all the circumstances the appropriate order in my view is the township is ordered to restore the rock ridge as best it can to the position it was in prior to 1970. That would not be difficult or expensive according to the evidence at trial. Since the berm put in by the plaintiff seems to work as well as the rock ridge but is, in itself, a change from the natural flow of the water, it would have to be eliminated should the township restore the rock ridge to its pristine 1970 form. In these circumstances if the township wishes to let the plaintiffs keep their berm, then it does not need to return the rock ridge to its status quo ante 1970. For whatever reason, including potential legal liability, if the township wishes to replace the rock ridge, then it shall do what is necessary to repair the berm at its expense since the plaintiff only built the berm under duress to solve a situation created by the initial municipal action.

(I interpret the word “replace” not to mean reinstate the rock ridge but to replace the ridge with the berm)

I listened carefully to the evidence of Bill Graham, a certified agricultural consultant, and accept his seven-step methodology as set out in Exhibit 11. The damages he calculated are reasonable for the plaintiffs ‘practical crop production system’ that they have developed Mr. Graham gave the balanced and reasonable opinion at the end of his report that ‘the total value of potential good quality hay production lost on Lot 9, Concession 9 from 1995 to the present because of flooding and inadequate draining is estimated to be $15,517.50.’ I accept that figure.

After the Decision of Justice McWilliam, the parties on two separate occasions applied to the Court for further direction. By Notice of Motion dated the 23rd day of November, 2004, the Township’s Solicitor Janet Bradley requested an Order that the issue of the proper drainage of the subject lands and other adjacent lands be referred to the Drainage Referee pursuant to Section 120 of the Drainage Act cited above. She requested an Order that the Township investigate alternate means to drain the land of the plaintiff and surrounding lands pursuant to the Drainage Act rather than comply with the relief granted by Justice McWilliam.

The Township further requested “an Order that a Decision of the Drainage Referee pursuant, to the Drainage Act, shall be deemed to amend the Court’s Order to restore the rock ridge or repair the berm.”

On this Motion, Justice McWilliam gave the following handwritten endorsement:

Things to remain in the status quo pending the completion of the process under the Drainage Act to establish a municipal drain. No order as to costs, notwithstanding the success of the Plaintiff, is protecting his berm for the interim. Original judgment is amended to the extent that this endorsement affects said judgment. (Stanley Road Municipal Drain Preliminary Report May, 2005, Exhibit #3 appendix A)

There is a slight variation of this endorsement found in Exhibit #7. In this the Motion is worded as “the Plaintiff in protecting his berm”. I view this as a clearer endorsement.

The Plaintiffs, the Allans, brought a second Motion on February 18, 2005. The reasons for this motion appear to have arisen from additional work that was completed on the berm by Kenneth Allan and the response that it brought from a neighbour, David Miller, on whose land the Allans extended the berm. This Motion requested permission from the Court to allow the berm to be extended/improved on a property not contemplated in the original Decision of Justice McWilliam. I am advised by both Counsel, that Justice K.E. Pedlar, when faced with this further Motion, strongly recommended the parties return to the path, which previously had directed them to the Drainage Act in order to resolve the matters at issue as soon as possible. Counsel provided no written endorsement for the Allans or the Respondent, the Township of Tay Valley, in relation to this second Motion on Court file number 97-0865, nor was any transcript provided.

PROPOSED STANLEY ROAD MUNICIPAL DRAIN

With the consent of both the Appellants and the Respondent, Todd Perry, Vice-President of McIntosh Perry Consulting Engineers Ltd., provided evidence at the commencement of this hearing with regard to the proposed Stanley Road Municipal Drain. Mr. Perry also submitted on behalf of the Township as Exhibit 2 much of the documentation surrounding the process leading to the establishment of the proposed drain, which arose subsequent to the Decision of Justice McWilliam dated November 14, 2003. Included, as Tab A in Exhibit 2, was the curriculum vitae of Mr. Perry, who I qualified as an expert in drainage matters without objection from the Appellants.

Mr. Perry indicated that three days after judgment was given in 2003, the Appellant, Ken Allan attended upon the property of Dr. Armour with his own equipment to fill in the rock ridge, which originally had been blasted out in 1970. This appears to be contrary to the Order regarding injunctive and damage relief given by Justice McWilliam in which the Township was to undertake restoration of the rock ridge. The alternative expressed by Justice McWilliam was that “for whatever reason, including potential legal liability, if the Township wishes to replace the rock ridge, then it shall do what is necessary to repair the berm at its expense since the Plaintiff only built the berm under duress to solve a situation created by the initial Municipal action.” (my emphasis)

Shortly thereafter, Jim McIntosh of McIntosh Perry Consulting Engineers Ltd. along with Kathy Coulthart-Dewey, the Township’s CAO, attended upon the Allans to explore options for resolution. Unfortunately, the Township had not taken upon itself to be proactive in response to the endorsement of Justice McWilliam. After the steps taken by Mr. Allan, on December 23, 2004, according to Mr. Allan, a Councilor visited Dr. Armour, the abutting landowner, after which Dr. Armour promptly evicted him from his property, thereby cancelling the informal arrangement Mr. Allan claims he had for the use of the Armour land. According to Mr. Allan, the ridge had been reopened before the visit to/call from Dr. Armour.

In these circumstances, Mr. Allan took the position that he was forced to repair or patch the berm.

The Township proceeded to obtain the advice of its engineers with regard to possible courses of action to respond to the judgment of Justice McWilliams. In a confidential memo to Tay Valley Township dated April 20, 2004, a number of options were reviewed. Most importantly, however, the engineer, Jim McIntosh, provided his opinion that re-establishment of the berm would lead to upstream flooding, causing damages to upstream lands and Stanley Road. As this was not seen as a viable alternative, the Township reviewed four drainage options, with a fifth option added, allowing overland flow around the existing berm.

The first option proposed was that the drainage be maintained in the existing channel north of the Stanley Road. This option was subject to some difficulties including the Allans’ insistence that there was no channel beyond the rock ridge.

The second option was to take the drainage along the northerly side of Stanley Road for approximately 900 metres easterly from the culvert on Stanley Road, which led into the Armour property. This would have the effect of skirting the entire Allan property but would require the deepening of the roadside ditches and possibly the installation of a guardrail.

Option 3 was to drain water on the south side of Stanley Road into a low lying area, while option 4 proposed to continue this drain on the southerly side of Stanley Road to an adjacent outlet. These two alternatives had difficulty in providing sufficient outlet, with an issue of higher elevations for the outlet of option 4.

The fifth option was somewhat crafted to the Court’s Decision in that it would allow water to flow in the same general direction as in option 1 (i.e. over the Allan lands from the higher bowl) but the water would reach the lower bowl by circumventing the earthen berm which had been constructed by the Allans.

Unfortunately the Township at this time was unwilling to use the provisions of the Drainage Act, more specifically Section 4(1)(c) of the Act, which would allow the Municipality to petition for drainage. The Township pursued the Allans with the object of having them join in an easement to allow the drainage to be completed by the Township. (See Exhibit 5, the Affidavit of Jim McIntosh, paragraph 11 Schedule C). In that Affidavit, Mr. McIntosh referred to a letter sent to the Allans suggesting the above-mentioned easement, or in the alternative that mutual drain agreement entered into under Section 2 of the Drainage Act. By the time this letter went to the Allans, further difficulties had already occurred.

In May of 2004, a contractor had been hired by Mr. Allan to further extend his berm. Mr. Allan stated this contractor reversed his work after many complaints from the neighbours. Given this atmosphere, the matter did not proceed quickly toward the Petition for a Drain under Section 4(1)(c), an option that had been placed before Council in April of 2004. In fact, further work by the Allans on the berm occurred in September of 2004, leading to a neighbour, Mr. Miller, ordering Mr. Allan to remove the berm from his property. The Township then directed its engineer, Mr. McIntosh, to write to the Rideau Valley Conservation Authority, to advise them of the Superior Court Judgment. The letter described what it perceived as a lack of consideration of the Fisheries Act, the Lakes and Rivers Improvement Act and the lack of obtaining a permit by Mr. Allan in construction of his berm.

A further letter was written to the Ministry of the Environment on the same date (September 24, 2004, see Exhibit 2 Tab H), regarding the increase in size of the dam (berm).

Finally, the engineer also wrote on the same date to the Ministry of Natural Resources (MNR) making similar complaints, raising concerns regarding possible failure of the dam and requesting what authority MNR might have in relation to Mr. Allan’s acts.

The response of the Ministry of the Environment was to send the matter to its Investigation and Enforcement Branch for further review of the water permitting regulation; the Rideau Valley Conservation Authority placed a notice of violation concerning the alteration of the waterway and a suggestion that the continued blockage of the flow of the existing water course as documented might result in charges under the Conservation Authority Act. A prior letter had indicated that the Conservation Authority would support the implementation of a drain under the Drainage Act.

These responses seemed to be a backhanded attempt of circumventing the judgment of Justice McWilliam, when that judgment could have been appealed if the Township did not find it palatable. It also appears the Township did not find it acceptable to proceed using a petition by the road superintendent, although that option was before it on April 20, 2004, until after the motion of the Township’s Solicitor to Justice McWilliam was heard on November 23, 2004.

After the motion, the Township proceeded with the drainage petition. On December 14, 2004, the Township of Tay Valley Council received the drainage petition of its Road Superintendent, Howard Farrell. On the same day it appointed Todd Perry as the engineer with respect to such drainage petition.

From this point forward, the Township moved quickly providing notice of an onsite meeting while providing notice to the various agencies of its decision. On January 20, 2005 an onsite meeting was held with 24 owners present. At the same time these owners filed a petition to Council that there be no cost to them for the establishment of this drain. It was confirmed by Mr. Allan that he did not attend this onsite meeting because of the animosity, which had developed with the neighbours.

In anticipation of another spring runoff, it appears the Allans took it upon themselves to bring the second motion, described previously, to compel the Township to maintain the berm pending the completion of the drainage report and to allow the extension of the berm on the Miller property. This motion was ignored by the Court with the admonition that the matter proceed expeditiously as possible under the Drainage Act.

The Preliminary Report was completed May 26, 2005, shortly before the second motion was to be heard. This report reviewed the five alternatives originally mentioned in the confidential report to Council thirteen months prior. After Council received the preliminary report, an invitation was forwarded to affected ratepayers to attend before Council to consider the preliminary report. Ken Allan and fourteen other persons attended this meeting. Whether it was a result of that meeting or the petition that was received from ratepayers previously, on the 28th day of June, 2005, the Township passed a resolution to pay all costs. (see Council minutes June 28, 2005, agenda item F, Final Report and see Exhibit 2 tab E, recital in by-law number 05-102).

At the same meeting, Council approved Motion number 06B-05-205, authorizing a supplement to the preliminary report arising from concerns raised by Ken Allan regarding the design of the proposed drain. (see Exhibit 2 tab MM). The engineer proposed direct negotiations with Mr. Allan. These negotiations lead to the addition of Appendix D to the final report of Todd Perry dated November 8, 2005, which is known as the Alternative #6 Amendment Supplemental Report.

The proposed Alternative #6 would have re-routed the drain along the northerly boundaries of the property owned by David Miller, Carol Bell, Phillip Turnbull etc., until it reached the Stefaniak property, in effect realigning the existing path of the water. The outlet on the easterly boundary of these properties is the same outlet as described in Drainage Alternative #1. Mr. Perry estimated the cost of this alternative at $238,821.00 as opposed to a project grand total of $148,976.00 for option number 1. (see Exhibit 4 appendix D, p.3 and Final Report p.18). Attached as Schedule A to this Decision is the map of considered options. (Exhibit 4 Appendix A Drawing #1).

In Mr. Perry’s expert opinion, Alternative #6 was not recommended for three reasons:

(1) there would be a significant amount of rock excavation as well as clearing and grooming with approximately $139,000.00 more in costs;

(2) the drainage alternative would require the ditch to be relocated to an area one meter higher than the existing passage of water. As such, the new ditch would only serve as a transmission line, not picking up the flows from surrounding lands; and

(3) using the original Alternative #1 would have less impact on land and therefore on property owners.

Mr. Allan did not provide expert evidence to refute this recommendation. In fact, in the report of Mr. Allan’s expert used at the original trial, which was supplied to me in Exhibit 2 Tab B, Roger M. Woeller, hydrogeologist, reviews three different options. These were;

Option number 2 described in the Perry report, being the drainage by-pass around the Allan property using a ditch along Stanley Road;

Option number 1 in the Perry report, improving the drainage channels on the Allan property; or

Option 3 - returning the property to its original condition.

Mr. Allan’s expert, in reviewing the options, suggests the “establishment of the drain along the north side of Stanley Road is economically unfeasible”, while the alternative of turning back the clock was suggested as a nonviable option “given that considerable development has occurred in the areas upstream of the Allan property and these properties may be at risk from flooding.”

see page 7, Exhibit 2, Tab B.

In face of this documentary evidence and the opinion of Todd Perry, a well-qualified drainage engineer, I find that the recommendation proposed in the final report, being drainage Alternative #1, should proceed.

FURTHER ISSUES ARISING FROM CHOICE OF ROUTE

The following are further issues that need to be addressed based on my finding that Alternative 1 represents the route which the Stanley Road Municipal Drain will take.

Does the Stanley Road Municipal Drain, as proposed by McIntosh Perry Consulting Engineers Ltd., provide sufficient outlet to meet the concerns of Ken and Neris Allan?
Are the allowances provided in the report of Todd Perry of November 8, 2005 adequate as they relate to Ken and Neris Allan?
Is the proposal of McIntosh Perry Consulting Engineers Ltd. regarding future maintenance and assessment schedules adequate?
Are damages limited to those set out in the Drainage Act for the establishment of a drain sufficient, given that this matter has also been forwarded to the Referee pursuant to Section 120 of the Drainage Act?
Does the Stanley Road Municipal Drain, as proposed by McIntosh Perry Consulting Engineers Ltd., provide sufficiency of outlet to meet the concerns of Ken and Neris Allan?

During the trial, we heard evidence with regard to the design constraints as they relate to this drain and the concerns of Ken Allan with regard to the sizing of the drain and its ability to cover spring runoff. We also heard evidence with respect to the design of the drain for a one in five year storm. In addition, I expressed concerns regarding overland flow and the removal of the berm as well as negotiations which had occurred with regard to the size of the drain. In his submissions on behalf of his clients, Donald Good stated that negotiations which occurred between Todd Perry and Ken Allan could “form no basis for designing a municipal drain”. With this I respectfully disagree. Establishing a drain requires consultation with all parties and given Mr. Allan’s history in this matter, he was the party who should have been consulted with the most.

In Exhibit 2, Tab B, Water and Earth Science Associates Ltd.’s report prepared by its hydrogeologist Roger M. Woeller on page 8, contains a number of conclusions. Mr. Woeller stated, “lowering the invert of the channel through the removal of .5 metres of bedrock has allowed significantly more water seasonally to pass on to the Allan property. Movement of increased volumes of surface water in the spring and early summer has resulted in delayed drainage and drying of the Allan property.” No evidence was given during the course of the hearing that would contravert this finding.

In the same report, Mr. Woeller states that there was a modification of the natural drainage system from the culvert on Stanley Road, abutting the Allan lands, into a well developed channel, which channel extended to the bedrock high adjacent to the Allan property (the ridge). Although aerial photographs were provided that appeared to indicate the channel continuing from the bedrock high (the rock ridge), the quality of those photographs was poor and supporting evidence was not presented on the channel’s existence, which would require that I disagree with previous findings. I prefer to accept the statement of Roger Woeller that, “natural drainage on the subject property east of the berm is poorly canalized and meanders through a low relief bedrock controlled terrain to where it joins a relatively deeply incised creek complex at an elevation of less than 140 metres above sea level, 15 metres lower than the bedrock high.”(p.4)

In addition, both Todd Perry and Mr. Woeller’s report confirmed that changes in the upper portions of the watershed, including roadside ditches, development of graded and better drained residential properties on the east side of County Road 14 (Narrows Lock Road), increased the rate of flow and lead to less absorption of water.

On cross-examination, Mr. Perry stated that while current development practice was to keep post-development flows the same as pre-development flows, in future if development continues upstream, there would be an increase in the flow. Further, it was the opinion of the engineer, Todd Perry on cross-examination, that the drain is not designed to cover spring runoff, as it will go over the banks. However, he stated that with the drain, the Allans lands would be able to dry out faster after the spring runoff. In situations of extreme weather events or spring runoff, flooding will occur in the bowl area and at the confluence of the internal drain within the Allan property. In Todd Perry’s summary he stated the Allan property will receive more water, but it will move away more quickly.

In response to a query from the Referee as to whether there would be a certain length of time after the installation of the drain for it to reach its normal operation, Mr. Perry’s response was that it would occur immediately. In addition, Mr. Perry gave his opinion that the property would dry out within agricultural time frames.

In dealing with the design constraints, Mr. Perry recommended the more stringent design period of a one in five year storm over the one in two year storm, with which I concur, as his design constraint set out in Section 12 of the report was to propose the best solution at the lowest cost.

During the process of negotiation, in an effort to avoid the eventual appeal that did occur, considerable discussion occurred between Todd Perry on behalf of the Township and Mr. Allan. In this process, according to Mr. Perry, Mr. Allan spoke of a four foot (1.2m) depth throughout his property, not just in the bottom half. At the hearing, Mr. Allan described another drain on his property which was seven feet wide and seven feet deep which allows flow during the entire winter. It was Mr. Allan’s opinion that a ditch six feet wide by six feet deep is necessary for winter flow and to handle spring runoff. In cross-examination, however, Mr. Allan confirmed that he had discussed the four-foot deep drain in July of 2005 which he stated as part of a compromise he would have accepted.

I am prepared to Order the minimum depth of four feet (1.2m) throughout the Allan property in order to address the issue of sufficiency of outlet.

During his testimony, Mr. Allan indicated that he wished the berm removed as part of a promise he appears to have given to his neighbours. During the course of testimony, Mr. Perry stated that a small amount of earth would be needed for construction. In my opinion, this earth can come from the Miller property if this is agreeable to Mr. Miller, to remove some of the earth that was placed onto his property without permission. If Mr. Miller is not agreeable to this idea, a portion of the berm surrounding the drain course can be removed.

In describing the watershed area, the engineer broke the area into three sub-basins; Section 1 having 32 hectares; Section 2 having 46 hectares, and the Upstream Section of 144 hectares.

Section 1 is described at Exhibit 4 p. 4 under topography as:

this area is low lying and typically flooded throughout the year. This low area and adjacent woodland is relatively flat in comparison with the other lands within the entire watershed. The second section abutting consists of about 46 hectares. The lands within this section have more relief for overland flows that the other two sections and are located at the downstream end of the watershed.

As shown on Schedule B to my Decision, Section 2 contains a significant area within the Armour lands from which water can flow overland to the Allan lands. While Mr. Allan sees little problem with continued flows once the drain is built to what he prescribes as a sufficient depth, it is obvious that water from the Amour property will flow overland to the area adjacent to the lower bowl in the Allan property. I view this as an impediment to the functioning of the drain and its sufficiency to outlet water from the Allan property. While there is no doubt that the outlet at the Stefaniak property is adequate, there is an issue of low-lying land that was raised during the course of the Hearing by the Appellants’ Counsel, Mr. Good, under Section 32 of the Drainage Act. While Mr. Allan believed that the drain should be built and designed to cover all types and manner of storm events including quick melting of snow pack, I cannot agree. In fact, the drain itself is designed to a higher standard in light of the climatology changes we appear to be undergoing. I view the spring runoff and snow pack arising over the course of time and the nature of its dissipation nothing different than an extreme weather event that would be greater than a one in five year storm.

In order to avoid issues of sufficiency of outlet in the future, it is my opinion that the berm should remain subject to my comments made previously for the removal of a small amount of soil needed in construction. The berm will protect against overland flows from the Armour lands located to the northwest of the berm/property line, which lands could drain by overland flow into the lower depression rather than making their way to the newly constructed drain.

It will be of no use to the parties to further litigate this matter. As a result, allowances should be given for the loss of land occupied by the berm and betterment to the existing drain by its retention. If the issue of sufficiency of outlet comes forward in the future, the retention of the berm and depth of the drain can be reviewed at that time. However, should such injury continue, I would suggest that either I, or whoever may be hearing this matter, look at an estimate of the cost of compensation for the owners of lower lying lands, (the Allan compression or bowl) pursuant to s.32 of the Drainage Act, rather than the more expensive and less cost effective option of deepening the drain.

Are the allowances provided in the report of Todd Perry of November 8, 2005 adequate as they relate to Ken and Neris Allan?

Two issues arose with regard to the allowances during the course of testimony. Mr. Allan confirmed that he was not satisfied with the allowances for land loss and the allowances for existing works (see page 17 final report, Exhibit 4). At the same time, Mr. Perry was forthright in indicating that, although an allowance might be allowed from the previous court case, as engineer, he did not feel he had authority under the Act to provide for such allowance. Given the nature of my decision, obviously changes are required in the allowances.

For land loss, I do not disagree with the calculation at which Mr. Perry arrived for the land lost to the Allan property, nor his method of calculation of and valuation of land by including the berm as part of the drain in order to lessen issues of sufficiency of outlet going forward. Nevertheless, allowances for land lost by the creation of the berm should be used in arriving at the final calculation of the cost of the drain.

Based on the testimony I find that the berm took approximately an area of 400 metres by 10 metres out of production (1 acre), with approximately 5 metres of land being made non-productive by the gouging of soil for construction and another 5 metres for allowance for width of the berm, (see sketch attached to Exhibit 2 Tab E). One can also see from that sketch there are lands between the berm and the boundary of the Allan property with the Armour property that are also lost to productive use. A further acre will be allocated to this loss of land for a total of 2 acres at $1,000.00 per acre for a total of $2,000.00.

The report of the engineer, under Cost Estimate, allows $3,335.92 for land lost on the Allan property, which allowance is described in Section 24.0 Allowances sub-section 1. A further $2,000.00 will be added for a total of $5,335.92.

In addition, Mr. Allan shall receive, as the berm is to be incorporated into the drain, the sum of Twelve Thousand Dollars ($12,000.00). In the memo to file prepared on July 27, 2005 by Todd Perry (Exhibit 2 Tab II) which was not disputed by Mr. Allan, as of that date, Mr. Allan estimated this amount to be the cost of construction of the berm. In later testimony, Mr. Allan felt the cost of removing the berm and restoring the land would be $25,000.00.

For the reasons stated with regard to sufficiency of outlet, I find that the berm shall form part of the drainage works and as such the allowance for existing works shall be increased by $12,000.00 to $15,600.00.

I agree with the engineer’s allowances for loss of access. One culvert should be sufficient in combination with the culvert and fence on the south side of the drain.

Finally, fencing needs to be addressed. One of the complaints of Mr. Allan during the hearing was that portions of his fence were destroyed on the boundary with the Armour property. Since there are allowances in the plans for an electric fence surrounding the Allan property, it would be somewhat a wasted effort, if that electric fence did not join to the boundary fence between the Allan and the Armour property, regardless of its current state. Since the electric fence is proposed on both sides of the drainage right-of-way, the fence should join to the corresponding boundary fence running in a north and south direction along the property line, thereby preventing access to the drain by cattle circumventing the fence as shown on the plans attached to the final report. This is in accordance with best management practices for buffer strips and constructed watercourses for drains and channelized streams. (See Best Management Practices, Buffer Strips, prepared by OMAFRA Ontario Cattleman’s Association, Ontario Federation of Agriculture).

The amount of this additional cost should be minimal, as Mr. Allan suggested that the fence destroyed was less than 20 feet on either side of the stream at the entrance to the Allan property.

During the course of testimony, I asked both of the witnesses regarding the loss of access to water which might be occasioned by the electric fence surrounding the municipal drain. From submissions of both Counsel, it was agreed that $500.00 represents a reasonable allowance for the cost of this system and such allowance shall be given to Mr. and Mrs. Allan.

Is the proposal of McIntosh Perry Consulting Engineers Ltd. regarding future maintenance and assessment schedules adequate?

I am concerned with maintenance and future maintenance with regard to this drain. It was suggested that if future development occurs, rates of flow from future developments will be required to match existing conditions (p. 15 Final Report, Stanley Road Municipal Drain). This might not turn out to be the eventual situation; development may be such that this is not possible; or development may lead to a further expansion of the watershed area. In such situations, should future development bring expanded requirements of maintenance, the obligation for such maintenance shall be for those parties redeveloping their portion of the watershed lands. The Township has taken it upon itself to accept maintenance in perpetuity, however this should not burden them with the responsibility of paying for maintenance which is brought on by future development. As a result, parcels that are subdivided and developed after the date of this Decision will not benefit from the Township’s obligation in perpetuity to be responsible for maintenance costs. In addition, I do not believe the Township should be giving a “carte blanche” with regard to maintenance, should that maintenance be required as a result of the willful misconduct or neglect of the assessed owners. The report of the engineer shall be amended accordingly.

Finally, the Township has been commendable in dealing with this matter by implementing on the 28th day of June, 2005, the following resolution “that the Township absorb costs incurred under the Stanley Road petition drain protest including legal, survey, engineering, design, construction and maintenance costs in perpetuity, save and except such costs which may arise out of property owner, nuisance and/or negligence or incurred by the property owner as a result of an appeal;” However, I believe this resolution needs clarification. While I accept the intent of Council in dealing with this, the resolution does not represent a binding obligation on future Councils. As a result, as part of this Decision, the provisions regarding maintenance and future maintenance/development contained in this Decision of the Referee shall form part of the obligation in perpetuity with regard to maintenance and future development as will costs of engineering, construction etc..

Are damages limited to those set out in the Drainage Act for the establishment of a drain sufficient, given that this matter has also been forwarded to the Referee pursuant to Section 120 of the Drainage Act?

One of the most disturbing aspects of the matter before me was the unwillingness of the Township to grasp its obligations once liability was found, when it as an owner (Stanley Road) by artificial means, increased the flow of water onto lower lying lands by widening a natural cut in a ridge or cutting a ditch. Once this course of action was taken by the Township, it was responsible for the damages which ensued. (see Proctor, The Drainage Act Ontario P.169, 1908 Arthur Poole & Co.)

The Township took it upon itself to dispute the right of Mr. Allan to construct his berm. The Township and many other municipalities have availed themselves of such a right every time they construct a road.

I refer the Township to McPhee et al. v Township of Plympton et al. 61 0.R. (2d) 508. In this case, McPhee sued the Township over a road. In 1985 the Township had reconstructed the road to improve a railway crossing and prevent flooding of the road. In the process, the surface of the road was raised substantially so that it was higher than the plaintiff’s land. In addition, the existing culvert was replaced with a smaller one. In this case the plaintiff testified that although their property was subject to flooding during the twenty-one years they resided there, the water always drained away. After the construction on the road occurred, there were heavy rains over a short period of time, which flooded the plaintiff’s house and property and caused extensive damage.

The action was dismissed. The Court found that

the owner of higher lands has no natural right to drain his surface water onto the lands of the neighbour, so that the owner of the lower land owes no servitude to the owner of the upper lands in this respect. Further the owner of lower lands may erect barriers to prevent the water from flowing onto his land. This is what the county did when it raised the surface of the road and it was in the same position as the owner of property for this purpose”. (p. 509 Headnote).

Stanley Road is no different a berm than that constructed by Mr. Allan. Although Ken Hutchings had written the Township (Exhibit 2 Tab F) complaining of flooding caused by the berm of Ken Allan, this did not alleviate the fact that the Township, in creating Stanley Road, had also constructed a berm which affected the property of Mr. Hutchings’ wife, Kathleen Hutchings, located on the southeasterly side of Stanley Road.

In the McPhee case the Court found the action of the County was not negligent. It did not have a duty to provide drainage facilities for surface water to the plaintiffs at common law. (p. 522).

Tay Township took it upon itself to approach the local Conservation Authority, the Ministry of the Environment, and the Ministry of Natural Resources to complain of the conduct of Mr. Allan, after it had already lost at trial and in opposition to the tenor of the Decision of Justice McWilliams. If the Township is attempting by this hearing to review the Decision of Justice McWilliam in providing mapping and showing channels beyond the rock ridge, it is evidence which I reject. The evidence of Roger Woeller mentioned previously, describes the lands of Mr. Allan as being poorly channelized. The issue of whether there was a watercourse which would require the decision of the Department of Fisheries and Oceans, (through its agent the Rideau Valley Conservations Authority), or whether there was a permit required through the Ministry of the Environment, should arise from the facts that were found by Justice McWilliams. If Justice McWilliams ruled that there was a water-course on the property, perhaps a different outcome would have occurred, but each of these agencies wisely stayed clear of any form of circumvention of Justice McWilliams’ well reasoned judgment.

Having said that, Mr. Allan was clearly wrong in attempting to extend his berm onto the property of David Miller and Margaret Lafrance. His rights given in the Judgment did not extend to other properties, nor were Miller and Lafrance joined in the action.

I would refer both parties to a Decision which arose in the Willowdale district of the City of Toronto, Di Gregorio v Osborne, [2004] O.J. No. 2156. This Decision which was given by Sutherland J. on May 20th, 2004, represents a more recent restating of the law with regard to liability and nuisance relating to surface waters. It confirms that the owner of the lower land has an absolute right to block surface waters coming from his neighbour’s higher land. This includes a test of reasonableness. To me, it was not reasonable that Mr. Allan should go on the lands of David Miller to prevent water circumventing his berm and continuing to flood his lands. At that time, Mr. Allan only had the right to build the berm within his own property.

Since the Township has been found liable in the original matter, damages which flow for the crops from November 2003 forward will be payable in accordance with the methodology adopted by Justice McWilliam.

I therefore order crop damages for the years of 2004, 2005, 2006 and 2007. As mentioned in testimony, the beaver dams that have refilled the rock ridge frequently wash out and the problem still occurs with regard to drainage through the cut in the ridge. Further I note, Mr. Perry indicated in his testimony that he did not feel he had the authority to pay such damages as part of the drain, with which I agree. As a result, I am authorizing payment of those damages to cover this period as damages not forming part of the Drain.

I would recommend the Township review the appointment of a Drainage Superintendent. Perhaps much of the problem that was encountered in this matter would have been avoided if such an appointment had occurred. While the Township has been ably assisted by its drainage engineers, the engineers were not retained until after a reasonable solution could have come forward. Such a solution would have been more possible if a Drainage Superintendent were in place.

Finally, I find costs in this matter shall be payable on a partial indemnity basis to the Appellant. Although the Township has proceeded in good faith since the appointment of Mr. Perry, at least one year of time was lost, in my opinion, while the Township explored avenues other than the Drainage Act while failing to comply with the terms of the judgment. This delay caused Mr. Allan the additional aggravation and costs of repairing the berm. Please note that I will also review submissions with regard to costs of the two motions which came before the Court at Perth.

O R D E R

For the above reasons and findings of fact and law, I hereby Order:

That the Stanley Road Municipal Drain proceed in accordance with the recommendation of Todd Perry of McIntosh Perry Consulting Engineers Ltd. with the alignment proposed as drainage alternative #1 and described in the report of November 8, 2005.
That the minimum depth of the drain throughout the property owned by Kenneth and Neris Allan shall be 4 feet (1.2m) in order to address concerns of sufficiency of outlet.
That the berm located on the property of Mr. and Mrs. Allan shall form part of the drainage works, subject to a minor reduction in the size of the berm, if during the course of construction soil from the berm is needed for construction of the drain.
That the allowances contained in the drain shall be amended so that allowance for existing works is increased from $3,600.00 to $15,600.00 and the allowance for land lost on the Allan property is increased from $3,335.92 to $5,335.92.
That the provision of fencing be extended from the westerly limit of the Allan property line to join the existing electric fence used to prevent access to the drain by cattle and further that an allowance of $500.00 be given to the Appellant for installation of a cattle watering system at their discretion.
That maintenance of the Stanley Road Municipal Drain shall be the responsibility of the Township, provided that such maintenance is not required at its cost as a result of willful misconduct or neglect of the assessed owners on the drain.
I further Order that in the future, maintenance of the drain may be assessed to individual owners should such maintenance become necessary as a result of development within an individual owner’s lands which increases the amount of flow from such lands into the drain, or to additional owners should there be an expansion of the watershed area if such owner is within the area of expansion.
I further Order, pursuant to Section 120 of the Drainage Act, that damages arising subsequent to the year 2003 for loss of crop be paid to Ken and Neris Allan for the years 2004, 2005, 2006 and the year 2007, as construction of the drain is not to commence until July 2007, well after the time to plant and harvest viable crops. I find such damages to be $1,724.11 per year for a total of $6,896.44 based on the finds of Justice McWilliam.
I further Order that the Township of Tay pass an amending by-law adopting the Stanley Road Municipal Drain final report and Alternative #1 as amended by the Decision of the Referee, including the Township’s obligations regarding payment for construction of the said drain, subject to its rights to claim partial maintenance costs for the drain as outlined in this Decision.
I further Order that the Appellants shall have their costs on a partial indemnity basis.

If the parties are unable to agree upon an amount which should be payable by the Corporation of the Township of Tay Valley to the Appellants for costs, I will entertain submissions from the Counsel for the Appellants with respect to costs, should they be different than those contained in his written submissions of December 8, 2006 within forty (40) days of the date of this judgment, with further submissions by the Respondents within thirty (30) days thereafter.

DATED at Strathroy, Ontario this 19th day of March, 2007.

ROBERT G. WATERS

ONTARIO DRAINAGE REFEREE

Allan v. Tay Valley (Township), 2007 ONDR 1

Case Summary

Counsel for the Appellants Counsel for the Respondent

D E C I S I O N

O R D E R