ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
West Nipissing(Municipality) v. Hud 2010 ONDR 4
DATE OF DECISION: 2010-08-27
STATUTE: Drainage Act
HEARING: BETWEEN: THE MUNICIPALITY OF WEST NIPISSING APPELLANT AND LORENCE WILLIAM HUD RESPONDENT
ORDER
Upon the Motion of the Applicant and upon hearing orally from the Appellant’s Solicitor:
IT IS ORDERED that personal service shall be deemed to have been effectively served on the Respondent providing the flowing three (3) CONDITIONS have been satisfied:
The Appellant shall post by ordinary mail, a copy of this Order and the Notice of Motion together with the accompanying Documentary Evidence returnable Monday, August 16, 2010 at 10:00 a.m. at the Court House at 360 Plouffe Street, North Bay, Ontario to the residence of the Respondent at 11431 Highway 64, Verner, Ontario in the District of West Nipissing, and at Unit 341-5A – 975 McKeown Avenue, North Bay, Ontario P1B 9P2.
The appellant shall post by registered mail, a copy of the order and the Notice of Motion together with the accompanying Documentary Evidence returnable Monday, August 16, 2010 at 10:00 a.m. at the Court House at 360 Plouffe Street, North Bay, Ontario to the residence of the Respondent at 11431 Highway 64, Verner, Ontario in the District of West Nipissing, and at Unit 341-5A-975 McKeown Avenue, North Bay, Ontario P1B 9P2.
The Notice of Motion together with the Documentary Evidence and a copy of this Order shall be posted in the office of the Local Registrar.
The Appellant shall file an Affidavit that the above three conditions have been satisfied.
IT IS FURTHER ORDERED that there shall be no further adjournment of this Motion.
There shall be no Order as to costs.
Dated at North Bay, Ontario this third day of August, 2010
Willian D. Turville Acting Drainage Referee
DECISION
Appearances:
Michael Miller, LLB. Solicitor for The Municipality of West Nipissing and no one appearing for the Respondent on August 3, 2010. However, this Court was not satisfied that personal service on the Respondent had been effective as required. I signed an Order for substitutional service requiring three conditions to effect personal service on the Respondent, returnable August 16, 2010.
The required Affidavit of Service was files. On the 16th day of August 2010, the solicitor for the Appellant, Michael Miller was present in Court and no one appeared for the Respondent.
In support of his Motion, the Appellant's solicitor filed the Affidavit of Garth Noecker, a civil engineering technologist and survey technician with K. Smart Associates Limited and the Drainage Superintendent for the Appellant.
All reference in this decision to the Drainage Act refers to Drainage Act, R.S.O., 1990 c.D.l7 as amended by: 1992, Chapter 32, s.8.
I find that Bylaw 1047-71 that created the drainage works known as The Cazabon Drain, passed by the Township of Caldwell on the 17th day of August, 1971. Was a drainage scheme in accordance with the provisions of the Drainage Act, 1962-63. Accordingly, I am satisfied that this municipal drainage scheme known as The Cazabon Drain gives this Court jurisdiction to hear this Motion. The Township of Caldwell by Order of the Minister in accordance with the Municipal Act, R.S.O. 1990, c.M45 that a Commission be established to reconstruct certain areas. This resulted in the Corporation of the Township of Caldwell along with other municipalities be amalgamated under the name of The Corporation of the: Municipality of West Nipissing effective January 1, 1999.
On October 16, 2000 Mr. & Mrs. Goulard, a prior owner of the land in question, submitted a Petition to Council to repair The Cazabon Drain also known as the Goulard Drain. On December 19, 2000 the Appellant appointed K. Smart, P. Eng, Limited to prepare a report and the work was duly completed.
The crux of the Appellant’s evidence is the Affidavit filed by Garth Noecker sworn July 16, 2010, and Exhibits filed at the Motion. In addition to the Affidavit of Garth Noecker, Mr. Noecker and Marcel Betty, the Assistant Drainage Superintendent gave brief evidence under oath.
The main issue in question is simply--did the Respondent deny access to his property for the Appellant's staff/employees to repair/maintain this municipal drain?
In 2007 and 2008 there were complaints by the Respondent that the road and the Goulard culvert needed repairs on his property. These repairs were completed in a timely fashion by the Appellant and the Respondent willingly gave access to his property at that time. It should be pointed out that the Goulard culvert in question was several feet behind a large, locked wrought iron gate. However, in 2008, three upstream landowners complained of flooding to their lands. On May 28, 2009, (Exhibit F) the Respondent advised the Appellant that there were problems with the Goulard culvert.
Some work was done, but the Respondent was not satisfied with the quality of the work (Exhibit G). The Respondent was not receptive to opening the gates (Exhibit J). The Respondent made it very clear he only wished to have communication with "one of the honest police officers" (Exhibit I) of the West Nipissing Police Service. As well, the West Nipissing Police Service were unable to mediate between the parties for access.
(Exhibit K) is a letter from Garth Noecker advising the Respondent that the Appellant had a legal obligation to repair the municipal drain and had the right of access. Part of this letter (Exhibit L) of Garth Noecker to the Mayor and Council of the Municipality of West Nipissing with a copy to the Respondent states:
"While we make every attempt to accommodate Mr. Hud's schedule in the installation of this pipe, all parties should be advised that the failure of this pipe threatens the integrity and capability of the upstream drain as well as Mr. Hud's access and that therefore it is my intention to proceed with the replacement of the pipe as quickly as possible."
Further communication from the Respondent to the West Nipissing Police Service, part of which reinforces the argument that the Respondent would not allow access through the locked wrought iron gate.
"I have already informed both of you and Inspector St. Pierre that no work can begin." (Exhibit M)
"Needless to say, all discussions in regard to the Drain have now been brought to an end by the Drainage Superintendent's false and defamatory accusations..." (Exhibit N)
I support the statement of Mr. Noecker (Exhibit N) that the Respondent was denying access to his property.
In addition, the Respondent readily admits to closing and filling in the drain (Exhibit P). This is part of the Respondent’s response to the Appellant's request for access (Exhibit 0) to do the work on May 6, 2010.
"which necessitated the closure and filling of the drain..."
Perhaps more telling of the conduct of the Respondent is letters and e-mails filed by the solicitor for the Appellant at the Motion (Exhibit 5). The Respondent was advised by the Appellant that he was exposing himself to penalties in accordance with Sec. 80 (i) of the Drainage Act for filling in part of The Cazabon Drain. On the same day an e-mail from the West Nipissing Police Services (May 20, 2010) encouraging the Respondent to allow the workers access to repair the Culvert/pipe. On May 21, 2010, the Respondent responds to the West Nipissing
Police Services in an e-mail, part of which reads:
"The work that I did to save and protect human life last summer, after the Municipality abandoned the dangerous drain, is continuing and shall continue unabated and the drain, which was closed in the summer of 2009, shall remain closed in perpetuity."
And
"All of the drainage employees, administrative and otherwise, including the CAO, are now persona non grata on my property and they cannot lawfully enter upon my land under the pretext of working on the drain because the drain was abandoned and closed almost a year ago."
In a further e-mail from the Respondent to the West Nipissing Police Service dated May 22, 2010:
..."and the Municipality now understand, that any and all drainage employees cannot now or ever, lawfully enter any part of my land, at any time, under any circumstances, for any reason whatsoever and if they do, you will immediately have them arrested and charged."
In an e-mail dated May 24, 2010 from the Respondent, addressed to the Clerk/Planner of the Municipality of West Nipissing, I quote the following excerpt:
“I also have informed Inspector St. Pierre that you and all other drainage employees, including the CAO, are now persona non grata, which means that there is a lifetime ban against any of you entering my property.”
Having considered the Exhibits of the Affidavit of Garth Noecker, Exhibits 1 - 6 filed and the testimony, I have concluded the following facts and law.
The Respondent failed to seek legal advice as to his responsibility being a landowner whose property forms part of this municipal drainage scheme known as The Cazabon Drain.
That by his own admission, the Respondent refuses to allow the workmen onto his property to repair/maintain the culvert/pipe contrary to Section 12 of the Drainage Act.
That by his own admission on several occasions, the Respondent has filled in part of this municipal drain (also see e-mail June 2, 2010 to Mr. Miller) Exhibit 5 filed.
The Respondent has repeatedly, either through his silence by not responding to requests for access or in his various e-mails attached to the Affidavit of Garth Noecker and filed as part of Exhibit 5 by the solicitor for the Appellant.
The Respondent has exposed himself to damages in accordance with Section 82 of the Drainage Act.
The repeated statements by the Respondent that this municipal drain has been abandoned are totally incorrect and he has interpreted the law to accommodate his agenda. To abandon a municipal drain or any of it, it must comply with Section 84 of the Drainage Act. These provisions have not been met.
The Respondent is required by law to repair/maintain the Goulard culvert and can be libel for injuries sustained by assessed landowners for non-repair Section 79.
There is no question that access has been denied and that there is urgent need for the repair to be done to prevent further damage to upstream owners. That the Respondent has been very obstinate in his dealings with the Appellant is apparent. It was the Respondent's initial request to have the culvert repaired, yet he has been very unreasonable in responding to the many requests for access. He was repeatedly warned of the consequences and his responsibility as part of this municipal drainage scheme. The Respondent has no regard for causing the lands of his upstream neighbors to flood and again is ruled by his own selfish agenda. The Appellant should have sought legal advice from the inception.
The Respondent has no right or reason to interfere with the Appellant's statutory duty neither to repair/maintain the works nor to interfere with those responsible for carrying out that duty. I do not hesitate to grant the relief sought by the Appellant and as no one appeared for the Respondent, the allegations are not refuted.
Having come to the above conclusions in fact and law, I Order the Municipality of West Nipissing to immediately to begin the repair/maintenance to the Goulard culvert and to take the necessary steps to clear that part of the drain filled by the Respondent, so as to relieve the flooding to upstream landowners.
To that end, I further Order the Appellant to engage the West Nipissing Police Service or whatever other police service that may be required to ensure that work is carried out peacefully.
I further Order a permanent injunction be granted to the Appellant against the Respondent or any of his agents or servants to restrain any lawful employee of the Appellant to repair, reconstruct or maintain the Cazadon/Goulard culvert and to remove the fill in the drain caused by the Respondent within his lands. This Order includes allowing the Appellant's servants, repairmen the right of ingress, egress and regress to the lands of the Respondent.
The Appellant’s solicitor shall have costs in the amount of One Thousand ($1,000.00) Dollars to be assessed against the Respondent’s lands in accordance with Section 109 of the Drainage Act.
Regarding the question of assessing damages after the work is completed; the Appellant may apply to this Court for an oral assessment. The conduct of the Respondent shall have some bearing on my decision as to the amount of damages that may be assessed.
Dated the 27th day of August, 2010
William D. Turville, Q.C Acting Drainage Referee