McFeeters v. Kawartha Lake (City), 2011 ONDR 3

McFeeters v Kawartha Lake (City), 2011 ONDR 3

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

DATE OF DECISION:

2011-01-14

2011-03

STATUTE:

Drainage Act

HEARING:

BETWEEN:

DALE MCFEETERS, DARMAR FARMS INC., TAMPA FARMS LIMITED, DALE HAMILTON, LYNDA HAMILTON, HYSPRUCE HOLSTEINS INC., WILLIAM MCKEOWN AND SONYA MCKEOWN

APPLICANTS

• AND –

THE CORPORATION OF THE CITY OF KAWARTHA LAKES

RESPONDENT

-AND-

GLEN CAMPBELL, EXECUTOR OF THE ESTATE OF

LILA MAY CAMPBELL; GLEN CAMPBELL,

LISA NORRIS AND BRAD NORRIS

THIRD PARTY

REASONS FOR DECISION

A trial of the issues which have arisen in relation to the Short and No. 2A Municipal Drain occurred between July 20^th – July 22nd, 2009, September 22nd – September 24th, 2009, December 1st – December 3rd, 2009, February 22nd – February 25th, 2010 and June 14th – June 17th, 2010.

This trial is a result of a series of events that lead the City of Kawartha Lakes (formerly the Township of Mariposa, hereinafter referred to as "Municipality") to bring a Motion before the Referee on Wednesday June 25th, 2008 for direction on procedural matters. Direction was needed because of work undertaken as a direct consequence of the Orders of Delbert A. O'Brien, Ontario Drainage Referee, dated the 31st day of August, 2000, on which Reasons for Decision were supplied on November 22nd, 2000 and a further Order dated October 20th, 2000, Court Files 002794 and 002957 respectively.

The prayer for relief in the Motion requested confirmation of who the parties were; the documents to be served; and the nature of the notice to be given. The main thrust of the Motion was to have the opinion, advice and direction of the Referee with respect to the Orders of Referee O'Brien described above and a procedure to be followed in the event that a valid petition for abandonment of the No. 2A Drain was received. More particularly, the Applicant requested that the Referee, should he find that there was a submission of a valid petition for abandonment, take the position that such petition superseded the completion of the outstanding Orders of Referee O'Brien. There was a further request that the Referee provide his advice and direction as to the appropriateness of the process, analysis and conclusion of the Municipality with respect to the abandonment petitions already received and for future similar situations.

In the grounds for the Motion, Counsel confirmed that the Municipality had received the report required by Referee O'Brien under s. 78 of the Drainage Act R.S.O. c.D.17 (hereinafter referred to as the "Drainage Act") and that it had been completed to the point where appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal (hereinafter referred to as the "Ontario Drainage Tribunal") and the Referee had been received and were ready to proceed.

These were appeals to the Referee under s. 47 of the Drainage Act which had not been delivered to the Referee and appeals to the Ontario Drainage Tribunal under s.48 and 54 of the Drainage Act. According to paragraph 68 of the Affidavit of Tom Pridham P. Eng., appointed by Council as the Engineer on this project, there were 35 appeals under s. 47 of The Drainage Act to the Referee and 37 appeals under s. 48 and 54 to the Drainage Tribunal.

Paragraph 69 of Mr. Pridham's affidavit indicated that he had received advice through the Municipality's Solicitor that the Agriculture, Food and Rural Affairs Appeal Tribunal was concerned about the appropriateness of proceeding with the appeals under s. 48 and 54 of the Drainage Act until the issues arising out of the petition for abandonment had been resolved.

The appeals concerned a report, which was submitted in accordance with the Order of Referee O'Brien dated the 31st day of August, 2000, which stated:

IT IS HEREBY FURTHER ORDERED that the Respondent Corporation appoint a Drainage Engineer pursuant to Section 78 of the Drainage Act R.S.O. 1990, Chapter 0.17 to prepare a Report for the maintenance and improvement of the Short Municipal Drain, including the preparation of a new maintenance schedule. All regular procedures as provided in the Drainage Act shall be adhered to.

In a Decision that tangentially related to this matter, Colin Campbell brought an application to the Drainage Referee on Court File no. 002957 on the 16th day of October, 2000 in which he appealed costs that had been awarded against him by the Ontario Drainage Tribunal on the 12th day of September, 2004.

Also, in the above appeal Colin Campbell raised other grounds for appeal. These other grounds included a request for an interim Order that no work occur on the proposed Fowler Drain or on Branches A and B of the Short Municipal Drain until a Hearing was convened in December of 2000 before the Drainage Referee. This request arose after the Drainage Referee had allowed for some maintenance in his Order of the 31st day of August, 2000 on the Short Drain; which then resulted in the Ontario Drainage Tribunal deciding to extend the maintenance to two branches of the Short Drain. In response, concerns were also raised to the Referee at a hearing October 16, 2000 that a new "branch", being the Fowler Drain, if constructed, would add to the volume of water and worsen the sufficiency of outlet of the Short Drain, which was the reason the Referee had ordered the Report in the first place.

It should be noted that by letter dated October 31 St. 2000, the Township of Mariposa's Counsel, Ronald Swain, advised that he was instructed by the Council of the Township of Mariposa not to contest the application for the above mentioned restraining orders on the Fowler and Short Drain Branches A and B.

Referee O'Brien's Decision in this matter is instructive and can be found at Tab 131 of Volume III of Exhibit 1. It should be noted that Exhibit 1 contains the main documents filed in this trial with consent of all Counsel.

Page 12 of Referee O'Brien's Decision states:

The Drainage Referee recognizes that this particular drain has more historical baggage than possibly any other Drain in the Province. The Short Drain is characterized by some special features. There is a group of upstream farmers, highly professional in their farming activities who seek the rightful privilege through the medium of the Drainage Act to obtain a proper outlet for standard agricultural drainage. In addition, you have several downstream farmers who believe they may suffer flooding from continued upstream improvement. The Appellant, Colin Campbell, has historically proven to be a flood victim. In addition, this Drain has attracted the attention of various agencies, both Provincial and Federal concerned with the preservation of the habitat. All of these factors have compounded to make drainage issues very sensitive and have been imposed on the Municipal Administration a burden not common for most drainage projects.

Referee O'Brien follows with a rather eloquent defence of the Drainage Act to which I will refer later.

On page 14 of the same Decision, Referee O'Brien states:

Thus, Mr. Campbell is caught between the interest of the upstream agriculturists and downstream guardians of the environment, wildlife and fisheries, etc., both of whom have a different but legitimate agenda. Mr. Campbell, caught as he is between these competing and powerful interests, at least has the right to appeal and present his dilemma in every possible forum.

In my experience, I have never encountered a drain with greater potential difficulty. It was because of this drain in times past that the whole Drainage Act process was challenged by powerful groups in the Province which groups regarded it as a threat to the interests they were determined to protect. Thus, any decision with respect to the Mariposa Drain must be made with great caution, having regard to historical factors. I anticipate the development of the S. 78 Report will not go without significant interventions.

A BRIEF DESCRIPTION OF THE SHORT AND 2A DRAINS

The Short Municipal Drain was originally constructed under the Township of Mariposa By-law no. 410 after a report dated April 12th, 1891 signed by W.E. Yarnold Township Engineer. The report provided for improvements commencing at the present junction of the Kievall Creek Drain, with the termination of the Short Drain upstream and well into the north half of Lot 10, Concession 10. The same report also provided for the construction of three branch drains designated as A, B and C. Branches A and C appear to be the present Branch A. Branch B on the original plan appears to be in the same location as the existing Branch B, however, this Branch has been extended and there is a further Branch 8 extension requested. The Short Drain also has an additional Branch in the Fowler Drainage Works, which enters the main drain at the north half of Lot 11, Concession 11.

A fairly large drain, being the Kievall Creek Drain, which was brought about in 1986, joins with the Short Drain at its terminus, where it enters into the 2A Drain. The 2A Drain (1914) has a number of drains entering it being; the Kievall Creek Drain (1.986), the Hill Drain (1903) and the McArthur Drain (1920). In addition, the Grant Municipal Drain (1980) is within the watershed.

In emphasizing the size of the watershed, Engineer T.M. Pridham's March 20th, 2006 report described these two Municipal Drains as the ultimate outlet for 8,420 hectares (20,790 acres) of lands and roads. On page 50 of his report, Mr. Pridham states:

Stripped to the essentials, this work is for all practical purposes maintenance of two long established municipal drains. The Short Municipal Drain was originally constructed pursuant to a 1891 report. The last major work was done pursuant to a 1978 report. The proposed work on the Short Drain is essentially repair work and the removal of two shale rock outcrops. The No. 2A Municipal Drain was originally constructed pursuant to a 1914 report. Work was proposed on a large part of the drain pursuant to a 1977 report however it was not proceeded with. No significant maintenance work has been done on this drain for almost 100 years. The profile cannot be located. The proposed work provides an updated profile and also deals with an unauthorized obstruction that is adversely affecting the functioning of the drain. The report also provides updated maintenance schedules for both schemes.1o

A BRIEF HISTORY OF MARIPOSA TOWNSHIP'S DRAINAGE CONTROVERSY

A recent history of the controversy over drains in the Township of Mariposa, now the Municipality, would be instructive at this point. Although there appears to have been controversy in the past surrounding the inception of the 2A Drain brought on by the report of Mr. Cavana in 1914, the most recent round of dispute arose with the 1977 report of H. M. Gibson Ltd.. This report arose from a petition for drainage work submitted in September of 1975. The report itself dated February 16th, 1977 by H. M. Gibson Ltd. Consulting Engineers, attempted to deal with both the Short and 2A Municipal Drains. The report identified a number of issues. In the description of the history of the 2A Drain in Mr. Cavana's report of 1914, reference was made to the "Handcocks dam" in the by-law, which Mr. Gibson presumed was the old dam on R. Chidley's property. Some of the recommendations in the report were:

7. Modify the existing culvert and control structure at Station 359-10, immediately west of R. Chidley's house.

8. Clean out and modify the overflow channel (West of R. Chidley's barns) to provide additional capacity for flood crest.

In the cost estimate, the modifications to the combination bridge and control structure at the Chidley property at Station 359-10 required the excavation, backfill and removal of the existing structure (p. R-6). There appeared to be no suggestion that the control structure would be replaced.

There was an appeal to the Ontario Drainage Tribunal. By Order given by the Chair of the Ontario Drainage Tribunal, D.A. O'Brien, dated October 24th , 1977, it was ordered that only the Short Municipal Drain be cleaned and improved and not the 2A Drain, which was located downstream from that drain. The cost for preparing the original report was to be assessed to the owners described in the assessment schedule to the Report.

As a result, a new Report was prepared by H. M. Gibson Ltd. on May 15th, 1978 with work being completed in approximately 1982. During the same period, a washout of the dam (control structure described above) occurred at the Chidley property. In 1981, the Ministry of Natural Resources approached Mr. Chidley requiring approval under the Lakes and Rivers Improvement Act for the dam replacement.

In response to this letter, Mr. Chidley's solicitors forwarded a letter to the Ministry of Natural Resources indicating that there had been a dam previously from the 1850's until the 1890's and that the current dam that was constructed in 1960, was washed out in the spring of 1981. Reasons cited for the dam to remain were that the dam would provide a source of recharge for the two wells located on the property and would be a source of water in case of fire.

During the 1980's concerns arose with regard to the continued silting up of the Short Drain, with the first request for a clean-out occurring in 1986 from James Paul. During the same period, work was being completed on the Kievall Creek Drain, which joined a small distance from its end with the Short Drain and the 2A Drain. It is acknowledged by all parties that there is some confusion as to the exact location of the termination of the Short Drain and the commencement of the 2A Drain.

During the same time, Colin Campbell made complaints to the Ministry of Environment with regard to possible water well interference as a result of drainage works. In addition, in 1987, Colin Campbell, among other parties, also requested a Hearing of the Tribunal regarding the proposed clean-out of the Short Drain, as requested by James Paul.

Concerns that were expressed within the watershed community lead to one of the earliest Environmental Assessments requested under s.6 of the Drainage Act by the Kawartha Lakes Conservation Authority to assess the work that was being proposed on the Kievall Creek Drain. As agricultural drains are exempted from the Ontario Environmental Assessment Act, the Environmental Appraisal provided an environmental planning tool to ensure that the construction of the drain was sympathetic to natural, social, economic and environmental conditions.

Throughout the period from 1986 forward, numerous requests were received for work to be done with regard to maintenance on the Short Drain. This culminated with a letter dated June 28th, 1995 by Dale McFeeters to the Drainage Referee under s.79 (1) of the Drainage Act to have repairs made on the Short Drain. At approximately the same time, the Ministry of Environment and Energy withdrew their Order under the Ontario Water Resources Act. This Order prevented maintenance on the Short Drain, as the Ministry of Environment and Energy appeared to have satisfied themselves that the complaint of Colin Campbell regarding well interference had been dealt with.

In 1997 informal appeals were made by Dale McFeeters to the Ontario Drainage Tribunal using s.79 of the Drainage Act. The Tribunal directed Mr. McFeeters to the Referee as it was within the Referee's jurisdiction to hear these matters.

As a result of the continuous requests and petitions for maintenance and improvements of the Short Drain, Branches A and B, Council requested a report. A report was completed March 10th, 2000 by R.J. Burnside and Associates Limited for the improvement and extension of Short Drain Branches A and B pursuant to s.s 8 (4), 76 and 78 of the Drainage Act but not s. 74.

The appeals initiated by Mr. Campbell on the report of Thomas M. Pridham P. Eng. of R.J. Burnside and Associates Limited dated March 10th, 2000, eventually lead to Referee O'Brien's decisions in 2000 (Colin Campbell v. Township of Mariposa Court file 002957) and (Colin Campbell v. Township of Mariposa Court file number 002794) together with the Tribunal Decision cited above.

The report, which was ordered by Referee O'Brien on August 31st, 2000, was expanded in its scope under s.78 of the Drainage Act to include the 2A Drain at the initiative of Council. Council was swayed in its decision by the terms of s. 78 that required the drain be taken to a sufficient outlet pursuant to s. 15 of the Drainage Act in response to Referee O'Brien's concerns regarding flooding on the Campbell property.

The acrimony that had been engendered between the competing interests on the Short and 2A Drain appeared to extend to other drains within the Township of Mariposa and its successor, as a result of amalgamation, the Municipality. This came in the form of the Washington Drain.

The Washington Drain serves a total of about 1,600 acres of which 500 acres are tile drained or will be tile drained. It is an open channel drain with an outlet on the east side of the townline with Ops Township. The report, which was appealed, arose as a result of two petitions brought to Council and the existing drain being out of repair. The Engineer who produced the report was Tom Pridham of R.J. Burnside and Associates.

An appeal was brought by Carl King ullider s. 48 of the Drainage Act to the Ontario Drainage Tribunal. His grounds for appeal included cost benefit and whether the designs should be altered due to concerns regarding water quality, water table, wells, and/or fish habitat.

Prior to the initial hearing before the Trilbunal, a Notice of Motion was served asking for procedural remedies. Most of these requests were granted by the Tribunal in this pre-hearing. Of particular concern to the Municipality and its Engineer was the release of documentation including:

1. a copy of all engineering survey field notes on the Washington Drain

2. a copy of his calculations showing the volume and rate of flow of water in the drainage channel.

3. a copy of the assessment worksheet(s) he used to prepare assessment schedules in the Engineer's Report dated AP 28, 2000.

After a hearing, the appeal of Carl King was dismissed. Costs were assessed against Mr. King in the amount of $8,000.00. Several issues with regard to the costs claim and the right of appeal to the Referee arose from the decision of the Tribunal.

More importantly, however, a further appeal to the Referee occurred, [Dr. Susan Terrill et al. v The Corporation of the City of Kawartha Lakes file number 004140], which appeal attempted to prohibit the Respondent, Kawartha Lakes, from initiating any works of repair, improvement, extension and enlargement of the watershed of the Washington Drain until such time as a sufficient outlet was available. The parties appealing were owners downstream who, although not assessed on the drain, were concerned regarding sufficiency of outlet. The Referee, after reviewing provisions of the Drainage Act regarding his jurisdiction, decided that he had the jurisdiction to review such sufficiency of outlet. On this aspect he stated, "The sufficiency of an outlet involves more than determination of physical calculations, but also involves legal consideration recited in case law such as whether the outlet is a natural water course, possible prescriptive rights, outlets into constructed channel, wetlands, etc."

After finding that there would be sufficient outlet for the Washington Drain on the basis that no further damage would occur, Referee O'Brien stated:

However, I also find that flood damage has been suffered by the Applicants for some time in the past and that the proposed works which include the work on the Rogers Hancock Drain, the proposed Elm Tree Road Drain and/or Branch, the Tampa Farms work on the Maclaren Creek watercourse, the possible Verdenberg work, all in combination raise a very strong presumption that the Maclaren Creek will not provide a sufficient outlet.

After describing work that had already been commenced on the Maclaren Drain, the Referee stated:

although the downstream applicants have in the past failed to sign a petition requesting the works, they have collectively at this hearing indicated that they favour, that the work be done on the Maclaren Creek watercourse and they have indicated they are willing to pay their fair share for the work. The need has been demonstrated, the solution is at hand and common sense requires that action be taken."

The Referee then went on to confirm his original jurisdiction to entertain an appeal with respect to the report of an Engineer under s. 47 of the Drainage Act.

I find that common sense and justice requires that (pursuant to s. 106 of the Drainage Act) I make a direction that the Township of Ops appoint a Drainage Engineer ... to complete the work that Mr. Kuntze has undertaken on the Maclaren Creek water shed and prepare a report with respect to the same."

This decision was dated July 15th , 2004.

In March of 2002 there were appeals to the Referee by both Dr. Susan Terrill on Court File No. 004140 and Carl King on Court File No. 003704, which then brought about a Correcting Decision by the Referee dated August 9th, 2002. This lead to an appeal to the Divisional Court, Superior Court of Justice, Court File No. 746/03 for judicial review of the Referee's Correcting Decision dated August 9th , 2002 and his original Decision dated April 26th , 2002.

All this is of some interest in that Carl King provided an affidavit on behalf of Colin Campbell in his application for restraining order on the work on Branches A and B of the Short Drain; this affidavit describes Mr. King as a friend and neighbour of Colin Campbell.

I provide this history of the Washington Drain to emphasise the intensity of feelings which have arisen in the drainage community and to illustrate its effect on drainage practice in the Municipality to which I will refer later.

SHORT AND NO. 2A MUNICIPAL DRAINS REPAIR AND IMPROVEMENT REPORT DATED MARCH 20, 2006

The report which arose from the Order of Referee O'Brien and on the initiative of the Council of the Township of Mariposa. Council by letter September 19th, 2000 confirmed a resolution passed pursuant to s.78 of the Drainage Act appointing Tom Pridham P.Eng. of R.J. Burnside and Associates as Drainage Engineer "to prepare a report for the maintenance and improvement of the Short Municipal Drain (including the section known as the 2A Municipal Drain). The report to include the preparation of new maintenance schedules as directed by the Referee."

At the commencement of summations I canvassed Counsel as to whether there had been any matters on which there was an agreement. It was agreed that the addition of the 2A Drain, an issue which Mr. Courey had raised in connection with the report on the Short Drain as ordered by Referee O'Brien was, on the consent of all Counsel appearing, a valid use of the powers of the Municipality, regardless of the wording of Referee O'Brien's Order.

Mr. Pridham summarized the recommendations contained in his report as follows:

This report has been prepared based on an extensive investigation. The work re-establishes the gradeline and deals with an unauthorized obstruction on the No. 2A Municipal Drain. The work also provides for removal of two shale outcrops and maintenance of the entire Short Municipal Drain. Future maintenance costs can now easily be dealt with as interval assessments have been provided for pro-rating purposes. The work is for all practical purposes maintenance and minor improvements on two long established municipal drains.

The modelling work undertaken is probably the most detailed investigation completed for any municipal drain in the history of the province. There was no other way to do it. The outlet issue of this watershed had to be addressed. The work clearly demonstrates that there will be no significant impact downstream as a result of the proposed work. Likewise, future schemes of an agricultural standard may take place in the upper part of the watershed without being impeded by concerns regarding the outlet capabilities of the Short and No. 2A Municipal Drains. This includes the work on the Short Drain, Branches A and B and the Fowler Drainage Works which are presently on hold.

This is the most significant outlet drain in the City of Kawartha Lakes. At present drainage in the watershed is basically frozen. The outlet problem is not going to go away or get any less costly to resolve. This work relieves the present day issues for the Short Municipal Drain and the No. 2A Municipal Drain. More importantly the outlet issue that has plagued this watershed for years has been addressed. Future generations are not faced with the struggle over the uncertainty of the downstream impact. There is no need for the costly injunctions, hearings, etc., that have prevailed in this watershed. They are not constructive. We encourage the assessed owners on this project to work together for long term harmony in this drainage community.

Unfortunately for the drainage community, Referee O'Brien foresaw the competing interests which lead to the various appeals now before this Referee.

SECTION 47 APPEALS

As part of the Procedural Order of August 6th, 2008 in this matter, the Appellants, pursuant to s. 47 of The Drainage Act I had until September 5th, 2008 to retain Counsel and provide the Referee with particulars of their appeals as the initial appeals were formulaic in nature. Particulars of these appeals were as follows:

1. The Engineer failed to consider alternatives to the proposed massive construction project, including the alternative of doing nothing and utilising s. 32 of the Act.

2. The Applicant failed to properly instruct the Engineer with respect to implementing the Orders of Referee O'Brien ... specifically by authorizing far more work than the Referee's Orders required, with subsequent increase in, cost.

3. The Applicant was negligent in its duty to monitor and control the cost of the report and has incurred excessive costs, which were unnecessary...

4. The Applicant did not fulfil the purpose of the Act in that it failed to allow for the participation of affected owners in the process. Rather, at each step, the Appellants were presented with a fait accompli.

Counsel for the Applicant, Valerie M'Garry, noted that two of these grounds referred to the Municipality as opposed to the Engineer complying with the Drainage Act. To this, Counsel for the Appellants replied: "that it is at best a distinction without a difference, we certainly could have brought a separate' application under s.1 06. I agree.

While several s.s. concerning the Engineer's duties were reviewed in argument, the heart of the issue as to the duty of the Engineer in completing the Engineer's report is s.11 of the Drainage Act which reads:

The engineer shall, to the best of the Engineer's skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the Engineer in connection with any drainage works and make a true report thereon.

At the outset, the Referee finds the report itself reflects the best of the Engineer's ability, his skill, knowledge and honesty. I commend him on his forthright dealing with the issues with a very complete report. However, a number of issues which Referee O'Brien warned of in his Decision dated October 20th, 2000 were not resolved.

Counsel for the Municipality, Ms. M'Garry, submitted that removal of 1.6 meters of material per meter length over 8 kilometres together with crossings made this a large project. Nor could it be seriously maintained that there was the alternative of doing nothing in the face of actions by a number of parties under s. 79 of the Drainage Act for damages from the Municipality for not maintaining and repairing the drain, given the potential liability the Municipality faced. During the course of evidence, Doris Chidley, for one, acknowledged that the 2A Drain had silted up, it was slow, being impeded by beaver dams to the extent that the drain had to be cleaned and the beaver dams removed.

In connection with the grounds of appeal regarding s.32 of the Drainage Act, Counsel for the Municipality pointed out that the Engineer is to provide an opinion and with such opinion the Engineer has discretion. In the final two pages of his report, under Benefit Cost Consideration, Mr. Pridham writes:

The most significant benefit of this work, in our opinion; is that if it addresses once and for all the outlet issue for the entire 8,420 hectare (20,798 acre) watershed.

The cost per serviced hectare for this work is roughly half the provincial average over this time period; As mentioned previously, the Benefit Cost Analysis on the Kievall Greek Drain indicates the cost for the proposed improvements would be recovered in 5 to 10 years.

In cross-examination with regard to the Cost Benefit matters, this position was not seriously shaken.

The second ground raised by the appellant causes more problems for the Engineer. Although the phraseology of the appeal described the City, it was the Engineer who needed to instruct himself with respect to the implementation of the Orders of Referee O'Brien. Being forewarned of significant interventions, the Engineer's response was to authorize work which greatly increased the cost of this drain.

Excellent historical research was undertaken by the Engineer in connection with this drain, which should have helped with the "social implications" component of the work in this drain. Mr. Pridham indicated he was aware of the environmental appraisal of the Kievall Creek Drain undertaken under the Drainage Act by Cumming-Cockburn & Associates Limited in 1985 In addition in later testimony; Mr. Kuntze described the Environmental Appraisal. I advised the parties that I was aware of its contents from another hearing. I indicated I would refer to it as a valuable methodological tool.

At the request of the Kawartha Lakes Region Conservation Authority, an Environmental Appraisal was done on the Kievall Creek drain which outlets into the Short and 2A Drains. The author stated:

The social implications of an undertaking are an important but often ignored component of impact assessment. This component of a study was carried out by way of questionnaires and person-to-person interviews. Social data was considered important to the appraisal process since this information provided the perceived and actual advantages and disadvantages of the proposed drainage to the landowners.

The analysis of impact on the social environment was very difficult to predict for this study. Analysis was limited to descriptive statistics and summaries. In general terms, the positive and negative aspects were mostly measured in economic value. However, this ignored many of the intangible social parameters (i.e. way of life) more research is required into the methods of social analysis for impact studies.

Later in the study the authors commented:

The social implications of the proposed drainage were the most difficult to predict. The people who live within the watershed were divided almost evenly for and against the proposal. We found that the attitude toward the drain was directly dependent on the benefits that the landowner would get from the drain, the cost of the drain to the landowner and the obligation the landowner feels toward solving drainage problems in the watershed and improving agricultural lands for his neighbours.

The authors of this study found that the cost of the environmental appraisal was beyond what was required. They suggested that to make environmental appraisals a useful tool, the cost of such study must be within the reach of the agencies and interest groups. Costs should fit the drainage community involved in this project. Engineering challenges were not the largest concern facing the Engineer in the Short and 2A Drains. Social issues were. They could be categorized in two areas:

1. The Norris Chidley Dam/Crossing

2. Modelling analysis and calibration costs.

The Norris Chidley Dam/Crossing relates to way of life issues whereas the modelling portion of the social benefit scenario relates to costs.

In an intergenerational conflict such as this, the downstream owners, mostly commencing with Colin (Mac) Campbell, saw no utility in drains. Counsel for the Appellants, who included Glenn Campbell, son and successor in title to Mac Campbell, acknowledged that Mac Campbell did not like drains. Many of the opponents on the 2A Drain at the outset, refused to acknowledge that it was a drain, instead referring to it as the Mariposa Brook. In response to a series of questions in cross-examination from Ms. M'Garry, Doris Chidley answered:

Q. Ok. Would that not have insured that you were aware that in the area in question in the vicinity property was a Municipal Drain?

A. Well, we were quite aware it wasn't. It never was a municipal drain as far as we were concerned.

In answer to a further question regarding research and documents, Mrs. Chidley answered:

1. . .. . It's always been the Mariposa Brook, and this is what we continue to think of it, as a creek and always has been.

The property owned by Lisa and Brad Norris (prior to them Ray and Doris Chid ley) had been the site of a mill dam used to power a woollen mill. This dam was raised to a height of 8 1/2feet in 1854 what was not known to the Norrises and the Chidleys was that in 1879 an agreement was signed by the owners at that time, Alexander Horn and his son, in which a contract was entered into with others for the removal of the dam. It was stated at the time that the Township had participated in the compensation, as the dam removal was to benefit the roads. Unfortunately this information was not known at the time of the Gibson report which, as noted earlier, proposed the removal of the structure on the Chidley property. This lead to an appeal to the Tribunal which limited the work to the Short Drain in the face of opposition from numerous assessed downstream owners, which included, I presume, Mr. Chidlely. T.M. Pridham confirms that Mr. Campbell brought to the attention of the Engineer at the time, Howard Gibson, that Chidley owned damming rights on the channel.

Then, as a result of a washout of the dam in 1981, without knowing the damming rights had been relinquished, Mr. Chidley made application to the Ministry of Natural Resources in response to correspondence from them. The application confirmed that the dam was a replacement in the minds of the Chidleys. It would appear that in 1977 the dam and the proposal in the Gibson report for its removal reflected a direct threat to their perceived rights. This opinion was confirmed by Doris Chid ley:

A. Some point in time Mrs. Chidley, did your husband assert that he had damming rights at that location?

A. We were under the opinion, because we had a copy of the original damming rights, that they were given to our property in 1849 I believe, and that they were given to that 38 acre parcel of land, and on it, it said forever.

In previous examination in chief, Mrs. Chidley described the somewhat ornamental nature of the dam:

A. Has there been some form or another of a dam across the stream for most of that time?

A. Not until 1957. There was a little – my husband put a little waterwheel in there and a little rock dam that washed out every spring with the water up and in the meantime the little waterwheel would pump up water to water the gardens and what not.

Ray and Doris Chidley and their Successors in title their daughter and son-in-law, Lisa and Brad Norris, live in a home which Doris has described as being built in the mid­1800's. It is plain from the evidence that both the Norris and Chidley families are sentimentally attached to this site.

With the evidence of Tom Pridham provided through his report and documentation in the course of the trial, it is clear that these damming rights had been relinquished. Unfortunately, this information was not provided to the Chidleys or their successors in title, Lisa and Brad Norris, when it resurfaced during the course of research for the drain. Investigation into the Chidley dam, as it was described, was first mentioned in documentation dated July 20th, 2001, described in an account from RJ. Burnside and Associates Ltd. to the Municipality.

It was at this time that an approach could have been made to Mrs. Chidley in an informal manner and certainly between early 2003 and 2005 to suggest that their damming rights did not exist; Mr. Pridham should have been aware, in relation to his research of the Gibson report, that damming rights were asserted by the owners. With the historical research completed in the fall of 2002 or early 2003, an opportunity was missed to discuss this and perhaps change the mindset of Mrs. Chidley or Brad and Lisa Norris prior to completion of the report. A fruitless meeting with Mr. and Mrs. Norris occurred in November 2005. Considering that, on April 11th, 2003, there was an information meeting hosted by RJ. Burnside and Associates Limited, an opportunity was lost at that time to pass on this information. The ultimate proposal showed a lack of sensitivity to the heritage of the site, specifically the way of life and the social issues surrounding the 2A Drain.

In the Referee's opinion, an opportunity was also lost to perhaps negotiate the removal of the wooden control structure/weir on the northerly side of the crossing. Having confirmed by 2003 through research that the stop log at the existing structure contravened s. 80 of the Drainage Act, the chance to improve the flow of the drain by seeking an order at a lesser cost was missed.

As work continued on the drain to determine sufficiency of outlet with the modelling exercise undertaken after March of 2003, design options for modelling had to be created. No design option, which included the existing structure, was ever introduced during this process. This modelling appears to have commenced in early 2005. No evidence was given as to when the engineers were made aware by the Municipality that there were new owners of the Chidley property until attempts were made to convene a meeting which happened November 26th, 2005

In his Examination-in-chief, Mr. Pridham confirmed:

... So as a result of that Washington Drain decision, it was absolutely clear to me that, especially on a project of this size, that you simply couldn't just state an opinion that the work wouldn't do any harm. That simply wouldn't be good enough in this particular instant and ... but again, it was abundantly clear to me that we had to do some detailed analysis with respect to the downstream impact of the work.

According to the Engineer, there had been attempts to get together with the Norrises since September of 2005. While all parties acknowledged that the meeting was not acrimonious, it did not go well. Preliminary drawings for a culvert replacement were shown. Mr. Pridham's evidence was that the culvert replacement wasn't cast in stone at that time.

The evidence of Lisa Norris was more detailed. She recalled that a history was given as to how the matter all started and discussions with regard to the Washington Drain occurred. The evidence of Lisa Norris was as follows:

Q. How did it all sit with you, that is, removing the bridge and putting a couple of culverts in?

A. Well, to tell the truth -it took a while to sink in. We didn't say a lot because we were just trying to digest it all. We were really quite amazed at what we were being told but didn't know how to respond to it. It -you know we were just surprised. Our response -we didn't have a lot of response and didn't say a lot. Because we really didn't know what to say or ­how to question.

Additionally, Lisa Norris confirmed that Mr. Pridham discussed his research, his modelling and the conclusions that the outlet capacity would be more than satisfactory.

At the same meeting, the Norrises were advised that the dam was illegal according to the Drainage Act and that Mr. Pridham could not find a record that there was permission from the Ministry of Resources to have a dam.

At a later date, the drawing of the culvert was dropped off at Lisa Norrises brother, Duncan Chidley's house. Although the parties had discussions and communication was also had with the Drainage Board for the Municipality, positions hardened with the Norrises maintaining that the crossing was their private property. Issues arose with regard to jurisdictional matters regarding the primacy of Ministry of Natural Resources legislation, as well as the Lakes and Rivers Improvement Act over the Drainage Act. Whether the eventual acrimony, which developed from this point forward, could have been spared by a series of meetings working toward a solution for both sides is a moot point, but it was never attempted.

The second area, which can be described as a social issue, is the modelling analysis and calibration costs. For modelling, the issues were: Was there a necessity in the Short and 2A Drain scenario for the modelling to be undertaken, and secondly: Was modelling to the extent and cost that eventually occurred indicative of a lack of judgment on the Engineer's part? Was the modelling undertaken as a result of fear of or prejudice against any person that lead to a breach of the Engineer's duties under s. 11 of the Act?

In the Decision of the Tribunal on the Washington Drain the issue of sufficiency of outlet arose, similar to this matter. The concern that the Municipality had regarding the discovery of Mr. Pridham's field notes was acknowledged by Counsel for the Municipality to be a situation which might have been an honest misunderstanding with respect to the information requested of Mr. Pridham by Counsel for Mr. King and the intended use of the Engineer's field notes.

In rendering its decision on the 22nd day of October, 2001, the Tribunal through its Vice-Chair, Andrew Osyany, stated:

The Engineering preparation forced on the Municipality by Mr. King has far exceeded what a project of this size should require. While Drainage Engineers provide information to assess owners, the drainage community should not pay for the excessive time or demands placed on the Engineer by one owner. The drainage community, as a whole, should not pay for the education of anyone member.

After several appeals, the matter ended up before the Drainage Referee, whose Decision dated July 15th, 2004 [Dr. Susan Terrell, Gordon Durward et al Applicants and the Corporation of the City of Kawartha Lakes, Respondents, Court of the Drainage Referee File number 004140 accepted the evidence of two Drainage Engineers in the matter, being Mr. Pridham and Mr. Kuntze to the effect that Referee O'Brien found:

There is sufficient outlet for the Washinton Drain viewed independently on the basis that no further damage will occur.

This, in concert with work that was to be completed on the McLaren Creek watercourse downstream, satisfied the Referee at that point, that the opinion of the two Engineers was sufficient. I note that in neither the Decision of the Tribunal nor that of the Referee was there any requirement or request that modelling be undertaken, although there is an acknowledgement by the Tribunal of a large increase in the amount of preparation placed on the Engineers by the Appeal.

Shortly after the Tribunal's Decision, in October 2001, a report from Burnside dated January 23rd, 2002, invoiced for the period from July 1st, 2001 to December 31st, 2001 was presented. In the invoice it was confirmed that staff were completing a field survey of the Mariposa Brook from Peniel Road, McGill Bridge downstream to Quaker Road for modelling purposes. The report also noted that already there were discussions occurring with the Public Works Department regarding concerns expressed by a local owner as to the extent of the work.

By March of 2003, Dr. Harold Schroeder, of Schroeder and Associates had been retained by the Municipality. There is no indication in the evidence that the need for this study was mandated by the Drainage Board, as various appeals in the Washington Drain were still proceeding, and there was no Decision indicating the Referee's backing the Engineers' opinion without modelling until July of 2004.

In cross-examination, Mr. Pridham lamented that with the Washington Drain, there was a $90,000.00 estimate, but the final cost of the work was about $250,000.00 as a result of the appeals that took place:

Q. Mr. Courey: And what happened to the increased cost? Did anybody pick it up other than the drain in general?

A. Mr. Pridham: No. It was passed on to the owners within the watershed. Well, how that influenced the Short Drain was the whole sufficient outlet issue. The Short and 2A had a 20,000 acre watershed, and it was relatively flat and needed some hard engineering evidence with respect to the outlet.

In Mr. Pridham's evidence he indicated that the total cost of construction items was $262,800.00, yet the total cost of modelling was $315,000.00. At the time of the information meeting in April of 2003, Mr. Pridham was of the impression that his proposal for modelling was reasonably well received. However, at the same time Mr. Pridham acknowledged that he had no idea how much work would be required for the modelling or what the eventual costs would be. He further acknowledged that no estimates were taken to the Drainage Board, which was charged with overseeing drainage matters for the Municipality. Nor did he attempt to seek an estimate from Dr. Schroeder, as he was the only one in the Province who dealt with this work.

In response to the suggestion that the modelling cost was a very large expenditure in relation to what was relatively a small amount of work, Mr. Pridham's answer was:

I think the modelling that we undertook, was fully justified. I think the outlet issue of this extremely large watershed had to be addressed once and for all, and the reason that the work is. . . . We were trying to go in there and establish,.... a new profile for the 2A and make sure that we could utilize with it what was there, and it was sort of the best drainage. . . we provide with the minimum amount of environmental intrusion. So we weren't looking at trying to pull out big yards just to make the construction cost higher. I know the modelling is a tremendous cost, and I know it's extremely high.....when you compare it to the strict cost of the~ construction ...but I feel that we were fully justified in undertaking the work, and it had to be done. The Drainage Board recommended to council that it be absorbed by the general levy, and quite honestly I was hoping council would follow up on the Board's recommendation with respect to that. I don't disagree, Mr. Courey, it's an awful expenditure, but I felt it was -it had to be done.

The modelling exercise also came into play with regard to what has been described as the Chidley/Norris Crossing. The evidence-in-chief with regard to the crossing arose from the testimony of Donald McNalty. He is a professional Engineer and employee of R.J. Burnside and Associates Limited. Mr. McNalty's work as a structural Engineer included a large number of short to medium span structures, mostly for municipal and county road systems. A number of such projects were large municipal drain infrastructure involved with rural roads.

During his initial testimony, Mr. McNalty admitted he had not been on site but that the firm had been for survey work and photographs. Mr. McNalty stated that after the meeting of November 2005, the Norrises prohibited further access. After describing a number of issues that could occur with the existing crossing being redesigned to work within the drain, Mr. McNalty brought forth the idea that if the crossing were to be rehabilitated; it should accord with good engineering practice. In his point of view, such practice would come under the Canadian Highway Bridge Design Code, which he indicated is also used for private structures. Based on his firm's reports, he looked at evidence on the foundation walls and winging walls. He had concerns regarding the superstructure handling loads and becoming a part of the municipal infrastructure, if it was incorporated in the drain. He also worried about vehicles sliding off. Based on those concerns, it was his opinion that the structure needed to be replaced. His difficulty was that he had not actually inspected the bridge, although he knew he had the right to have such access.

By Motion of the Municipality dated November 28th, 2009, heard on December 2nd, 2009, the parties consented to an inspection of the crossing by their Engineers, together with consultants of their choosing, as confirmed by order dated the 20th day of January, 2010. Such attendance was ordered with costs of the site visit to be separately assessed and allocated by the Referee.

The same order included production of the report of E.P. Dries, P.Eng. of Dillon Consulting Limited to the Referee. This report was completed October 19, 2009. The Dries report dealt with issues such as the need for improvement under s. 78 of the Drainage Act. It confirmed that a report should occur on both the Short and 2A Drains. The report dealt with hydraulic design including the two-year storm and five-year summer event, and also considered over bank incidents, which in the opinion of its author did not affect non-agricultural lands.

With regard to the design gradeline, contrary to the Pridham Report (which suggested a .05% generally throughout the drain), this report suggests that 0.04% grade from the commencement of the 2A, increasing that grade to 0.06% after the Norris crossing was passed. The report acknowledged that it was not completed with an inspection on-site. Unlike the testimony of Mr. McNalty, neither Mr. Dries nor his report suggested the necessity of bridge code standards, making note that the Ontario Ministry of Agriculture and Food Guidelines make no reference to this requirement. Mr. Dries raised the issue of the practicality of the highway standards. He raised issues with regard to the cost benefit aspect of the structure, which would be approximately $60,000.00 to replace the old crossing.

In Mr. Dries' initial report he concluded that on the surface, the Pridham report was not much more than maintenance, but the hydraulic modelling cost at $315,000.00, or 32.6% of the project, was extremely high. He opined that in his practice he found it extraordinary. While he concurred there was nothing wrong with using sub-consultants, it was his opinion that the Municipality should be paying this out of the general levy. Regarding the crossing, it was Mr. Dries' opinion in his initial report that the existing crossing did not require complete replacement. Given that the estimated cost of the installation proposed by the Pridham Report was $60,000.00 and the area being provided access was approximately 2 acres, the cost to replace the structure hugely exceeded the real property value of land that provided the access.

The report submitted by Mr. Dries took into account the Chidley property, which is adjacent to the Norris property. This property is 15.41 acres, but only a portion is used for agricultural purposes. He suggested that even if this area was included, the cost of the structure exceeds the real property value of the land suggesting that s. 33 of the Act would need to be seriously considered. Dries surmised that the intent of replacing the structure was not related to its function as a private crossing but as a means by which the weir/control structure/dam on the upstream face of the existing structure could be removed. His recommendation was that the structure not be removed as it "does provide a convenience to the property owner who has paid the entire cost of the construction".

On the matter of flooding, it was Mr. Dries' opinion that "the weir would produce an artificial increase in the water surface profile upstream of the structure. Because the grade of the drain is so mild, this influence may extend upstream to the Eldon Road crossing. The crossing structure itself could effectively convey the 10-year return period flood without flooding the Norris residence.

On the drain in general, Mr. Dries also recognized that livestock and cereal grain production is being replaced by commercial row crops. "The owners that have contributed to these drainage systems have a right to expect an appropriate level of service. The physical features of any structure within the channel, whether it is the weir on this structure or a beaver dam, must be controlled through some enforceable legislation. In his initial report, he suggests that the weir be lowered to a level consistent with the .04% design channel bottom grade.

As a result of the return to the site ordered by the Referee in his order of January 20th, 2010, further reports were given, including the report dated February 9th, 2010, of Dillon Consulting Limited 66 and the R.J. Burnside and Associates Limited report February 12th , 201067. Both maintained the divergent views shown in the original reports of the Engineers. The Dillon Report indicated that no detailed analysis had been conducted to assess the capacity of the structure with respect to the Ontario Highway Bridge Design Code; while the Burnside Report determined that the bridge superstructure system was not capable as accepting the Bridge Design Code loads. The Canadian Code standard has superseded the Ontario Code.

The Code, while useful and desirable, is not mandatory, as by definition its use relates to a highway. The definition of a "highway" includes a driveway, bridge, trestle or any other structure incidental thereto, any part of "which is intended for or used by the general public for the passage of vehicles ... The difficulty is this is private property. The Norrises no longer have a pressing need to cross over the bridge, as the broiler barn that was located on the other side has long since been demolished. The evidence of Lisa Norris was that the bridge was adequate for feed trucks before the barn was demolished and that it has served them well since.

In cross-examination of Mr. Dries and Mr. McNalty, both acknowledged that the installation of a haunch at the base of the current crossing could stabilize the drain bottom as well as gripping the concrete in the structure. Widely divergent views of the cost of this procedure were given. Mr. Dries gave a total of $10,000.00 to $15,000.00 as a conservative estimate in creating the haunch, stabilizing the bridge and rerouting the water. Mr. McNalty's estimate was considerably higher at $45,000.00, but given the social issues rose by the owners, both lifestyle and cost, this is still less than the Pridham report is original proposal of $60,000.00. Mr. McNalty did not take into account in his estimate, but later acknowledged, that using the existing diversion channel could save $12,000.00 during construction and other cost savings measures could lower his estimate.

As a result, the total cost of retaining the existing bridge, depending on the estimates, could be between $15,000.00 -$33,000.00. Proceeding with this previously unexplored option would thus reduce costs and also deal with the issues, which lead to Lisa Norris spearheading opposition to this drain.

FINDINGS

Returning to the particulars of the appeals under s. 47 of the Drainage Act, I find that the Engineer failed to consider at least one alternative, being the retention of the existing Norris crossing through stabilization of the existing bridge foundation. The Engineer was correct in ascertaining that the alternative of doing nothing was not prudent and that utilizing s. 32 of the Drainage Act in the particular situation of the Norrises would not benefit from compensation for flooding of low lying lands. The better choice would have been, assuming the lack of legal right to access by Duncan Chidley over the Norris crossing, to have entertained an allowance for loss of access. This was not done. Given the informal arrangement between Lisa Norris and her brother Duncan Chidley, which might be formalized in the future, the best course of action will be to stabilize the existing structure.

The Referee finds that the work completed on the report, although more than the Order of the Referee, with the inclusion of the 2A Drain, was a valid exercise of the authority of the Municipality. I am satisfied that the work, including modelling, was necessary, given the Reasons for Decision of Referee O'Brien which found Colin Campbell to be historically proven a flood victim. This coupled with the evidence of David McGill referring to the flooding in the area of the McGill Bridge on Peniel Road; has further confirmed to the Referee that a certain amount of modelling to buttress the opinion of the Drainage Engineer was merited. However, the Engineer failed in his duty to monitor and control costs of the report thereby showing lack of judgement in not obtaining some form of estimate regarding the cost of modelling and to some extent having ordered the modelling out of concerns regarding possible subsequent appeals.

Finally, the Engineer neglected his duty in connection with the Norris Crossing by failing to involve the affected owners in the process at an earlier time. While acknowledging that Mr. Chidley died during this period and title was transferred, based on the research of the Engineer and with his knowledge of the history of the site, he could have brought an application during this process to clear the log control structure/weir. In addition, the Engineer could have applied to the Referee for direction regarding routine maintenance matters given the length of time that had passed from Referee O'Brien's Order of 2000. Unfortunately, the amount of acrimony that had occurred in the Township of Mariposa and its successor, the Municipality, lead to an extremely adversarial approach to this drain on both sides, which has only added to its costs.

ORDER

The Referee Orders that an amended report be prepared by Thomas M. Pridham of R.J. Burnside and Associates Limited incorporating the existing crossing on the Norris property into the 2A Municipal Drain, such report to be completed within ninety days with full consultation. With Edward P. Dries of Dillon Consulting Limited prior to its return to the Referee. Such Order completed on the 10th day of December, 2010 is attached as Schedule "A" to this Reason for Decision. For the above reasons, I have required the incorporation of the existing crossing into the 2A Municipal Drain.

GRADELINE

Other matters in my Order, however, will require explanation. I have ordered that the 0.05% grade proposed in the report of Mr. Pridham dated March 20th, 2006 be used between Peniel Road and Black School Road. In light of the modelling, which was completed, I cannot accept the logic of Mr. Dries in suggesting a 0.04% grade for the 2A Drain, from its commencement at the end of the Short Drain to the Norris property, then increasing the grade to 0.06% extending from the Norris Crossing station no. 1 + 150 to the outlet of the 2A at station no. -0 + 600.

In Mr. Dries' report and through evidence given by Mr. Pridham, it was confirmed that all three alternative grade lines considered in the Pridham report, being 0.05%, 0.045% and 0.04% provided a channel of sufficient hydraulic capacity to contain and convey the designed flow. Mr. Courey in his submissions on the lower gradeline suggested that 0.04% would still work, and that it was the best way of compromising the competing interests, being social concerns and property rights. He further suggested there would be less work on the drain, approximately 100 meters less excavation.

Mr. Courey rightly pointed out that the issue with the 0.04% grade is that it will silt over with lack of maintenance. His suggestion was that routine maintenance should be required as part of the Referee's Decision. The Referee, having considered this and the determined opposition to even the slightest maintenance in the past, is inclined to accept the evidence of Mr. Pridham regarding the grade. I am satisfied that the 0.05% grade will more readily remove impediments to the flow which might be left by the bottom of the previous dam/weir as a result of the reconstruction of the Norris Crossing. I am also satisfied that while there will be a need for regular maintenance, the 0.05% grade will lead to less frequent maintenance. While I find that in the past there has been no actual flooding of the residence of Doris Chidley and her successors, Lisa and Brad Norris, given the occasion of more extreme weather events in recent years, some relief will be provided if such event occurred through the imposition of the 0.05% grade.

Any steps which will extend the time before the need of maintenance and possible further appeals and continued acrimony in the Referee's opinion, is the better course of action. Therefore I accept the grades proposed by Mr. Pridham in his report in S. 5.0, subject to any variation arising from the amended report mandated by my order of December 10, 2010.

In order to police the reconstruction of the crossing and the two-year warranty period in which the structure will form part of the drain, the Referee will require confirmation from the Engineer of the date completion of the drainage works, more specifically the crossing. At that time an Order specific to the crossing can be provided, if deemed necessary by the Norrises.

In my Order I have required the removal of one-half of the cost of modelling from the estimate of the cost of the drainage work. As stated previously in these reasons, it has been acknowledged by all parties during the trial that the modelling exercise lost its focus. While no evidence was brought to bear as to how the scope of the modelling could have been limited, previous concerns, which I have described with regard to Collin Campbell, and continuous flooding of his lands and the more recent concerns raised by David McGill confirmed the need for modelling. In a drain saddled with the controversy that has enveloped this drain in the context of the history of drainage within the City of Kawartha Lakes and its predecessors, together with the lack of profile for the 2A Drain, there was a necessity for more detailed calculations contained in the modelling exercise, but not its runaway costs.

QUESTION AND ANSWER DOCUMENT

I have ordered the removal from this drain of 75% of the cost of preparation of a report and/or meetings and procedures both engineering and legal required in completing the Question and Answer Document. This Exhibit was completed in the form of a document brief dated November 11th, 2006 completed by Valerie M'Garry, Counsel for the Municipality. The Memo accompanying the document dated November 11th, 2006 stated:

In May of this year, Council resolved that the matter of the Short and 2A Municipal Drains be referred to the Drainage Board to conduct the meeting to consider the report. An additional condition was imposed-that any questions about the proposed drainage work be sent to the Secretary of the Drainage Board in writing by June 5th , 2006, and that all questions raised by the public or Councillors be answered in writing. This document is to be made available 10 days in advance of the consideration meeting, at the Clerk's Department at the City Hall, for pick up by interested members of the public.

In Referee O'Brien's Order of August 31, 2000, he ordered that, "All regular procedures as provided in the Drainage Act shall be adhered to." I see no requirement in s. 41 or 42 of the Drainage Act for the Council to require questions in writing or to complete a question and answer document responding to those written questions in writing. In addition, since this drain was to be constructed pursuant to the provisions of s. 78 of the Drainage Act, it should be noted that s. 78(4) indicates that all proceedings, including appeals, under this section be the same as on a report for the construction of a drainage work, which, for example, would be drainage work constructed on petition as found in s. 5(1) of the Drainage Act. Further guidance can be obtained from the provisions of s. 106(1) of the Drainage Act in which: The Referee has original jurisdiction:

"... (d) to entertain applications for orders directing to be done, anything required to be done under this Act:

(e) to entertain applications for orders restraining anything proposed or purporting to be done under this Act or a predecessor of this Act; and

(f) over any other matter or thing in relation to which application may be made to him or her under this Act."

Counsel provided no guidance from prior decisions of Referees with regard to a document such as the Question and Answer Document. I have awarded a portion of the costs of the Question and Answer Document to remain with this report, in that in the particularly divisive atmosphere which Referee O'Brien had warned of, attempts at providing for a streamlined process have merit. In this situation, I would have recommended that the questions be obtained as proposed in the Question and Answer Document, but that a meeting is used to provide comments and answers to some of the questions as many were repetitive, rather than preparing a document 169 pages in length. The costs far out-weighed its value. The Question and Answer Document was open to abuse. For example, Brad Norris on his own provided 137 questions, the posing of which and providing the answers thereto took up 140 pages in the document.

Of interest was correspondence dated June 2nd, 2006 from Frank Smith with a series of 19 questions. The last question is indicative of the problem which the municipality failed to recognize. "Do you guarantee that your cost of the entire operation including the modelling, consulting and the report will not exceed $1 million plus cost of living for any delay in starting? Who will monitor those ongoing costs? The answer, after indicating it was impossible to guarantee in advance what the entire cost would be, confirmed that the cost of the report and the modelling was known but construction portions going to tender could not be guaranteed and that the cost of appeal processes would affect the cost. In its answer, the Municipality specifically mentioned the Washington Drain. The answer stated: "The municipality will be responsible for monitoring the ongoing costs during the construction phase and will certainly be aware of increases in costs, although not able to "monitor" in the sense of exercising any control, during the appeal phases." The Municipality's duty was to monitor to the best of its ability, through the entire process, not simply during construction.

An additional concern for the Referee is that the Municipality, being an amalgamation of a number of smaller municipalities, may be attempting to compartmentalize the process while isolating itself from some of the hard questions that can arise from the Drainage Act procedure. Going forward, I would recommend that municipalities in larger projects, encourage written questioning so that meetings can be fruitful, but avoid the cost of the individual answering of repetitious questions. By the use of a meeting the concerns of several people will be answered in one response to those repeated questions. Although such meetings can be difficult, they are a necessary part of this process:

In evidence, Kenneth Becking, Director of Engineering and Public Works for the Municipality confirmed that there were 41 copies of the Question and Answer document picked up, yet 100 -200 were printed.

FENCING

During the course of the trial, the Referee preceded on view in the presence of Counsel, Counsel of the Short and 2A Drains. During this inspection, at the conjunction of the Short and Branch A, Branch B and the pending Branch B extension, standing water was noted in the Drain with banks falling in as a result of trampling by cattle. The cattle were located on the property being the south half of Lot 11, Concession 11 owned by E. Cleland. At this locale, cattle were observed in the drain. There was little evidence of flow in the drain. The Referee formed the opinion that flow in the drain was being impeded by access by the cattle to the drain, especially at this junction.

The need for fencing has been addressed in my Order of December 10, 2010. In the report of E.P. Dries of Dillon Consulting Limited dated October 19th, 2009, Mr. Dries made the following comment:

As a general comment, I find it unusual that the Authorization makes no comment about controlling livestock access to the drain. I recall from my site visit in 2000 that the Short Drain passes through pasture lands. The report makes no comment for the need for fencing to prevent direct livestock access to the drain. This practice is suggested and the Design and Construction Guidelines and DFO may consider this a positive mitigation matter measure. Would recommend that the Engineer review the potential need for fencing.

In response to questions in cross-examination Mr. Pridham indicated it was not his practice that cattle be fenced out of drains unless someone requested it. He confirmed that it had only been previously done once by him, upon request. On further questioning Mr. Pridham indicated he was not aware of Agriculture Canada/Ontario Ministry of Agriculture and Food, Best Management Practices booklets such as Streamside Grazing. Given the constant requests for maintenance on the Short Drain, such a position is unacceptable.

ENVIRONMENTAL CONCERNS

Referee O'Brien, in his Reasons for Decision of November 22nd, 2000, recognized the competing interests of the upstream agriculturists and the downstream guardians of the environment, wildlife and fisheries etc. One of those guardians of the environment is Glen Campbell, son of Collin Campbell, one of the main protagonists in the history of this drain. Mr. Campbell, who is now a Councillor for the Municipality, did not provide testimony at the trial. However, evidence of Mr. Campbell's position came to the Referee. In a letter dated March 23rd, 2006, around the time of the presentation of the report of R.J. Burnside and Associates Limited to the Council of the Municipality. Mr. Campbell made several suggestions, starting with his opinion that drainage in Mariposa was viewed as water removal. He wrote that this approach was leaving social, environmental and economic chaos in its wake. He suggested a number of innovative approaches to drains including using field tiles, not only to drain water during times of excess, but also to hold water in the soil during times of drought. He quoted Dr. C.S. Tan's research on the effect of controlled drainage. For example, such drainage can create a controlled system which partially eliminates nitrate, phosphorus, and pesticide runoff into water courses. His recommendations deserve consideration.

Recently, the Ontario Ministry of Agriculture and Food has requested a review of the extensive literature surrounding environmental impacts of agricultural drains. This review, dated September 4th, 2004, was completed by the Ontario Soil and Crop Improvement Association and submitted by Harold Rudy of that organization. One finding of this paper, which reviewed both the negative and positive impacts of drainage from an environmental perspective, was, that subsurface drains can reduce runoff when the subsurface flow is added to the reduced surface flow. There may be a net increase at the field's edge but that outflow is spread out over a longer period of time. In the present situation of the Short and 2A Drains where many of the tiles do not function properly, it can be assumed in rainfall events that surface drainage washes not only phosphorus, but liquid manure, pesticide residue, etc. into the drain. As recommended by Mr. Campbell, controlled drainage and sub irrigation systems can reduce this, but such systems must be allowed to function. The Short & 2A drains have failed for a number of years through lake of maintenance and failure to follow up on recommendations of Engineers on past reports. The watershed surrounding the Short & 2A Drain includes the Kievall Drain which had an Environmental Appraisal. This appraisal found that sediment and erosion would be decreased by that drain; that water quality would be improved by a functioning drain in the long term, that this would be a positive impact and that the drain would have an effect of decreasing flood levels during 2, 5 and 10 year rain events.

Looking into the future, controlled drainage may be part of the answer to environmental concerns, but in the interim what is needed is properly functioning drainage to create a capability for such control. That is not the situation at present with in the Short and 2A Drain.

SECTION 54 APPEALS

There were two appeals lodged under S. 54 upon which the Referee heard submissions of the Applicant and the Appellants, Carl Jewell and Ronald and Judith Gibbs. The Appeals of Jewell and Gibbs were to the Tribunal. If the Appeals had proceeded to the Tribunal, pursuant to s.1 01 of the Drainage Act, such decision of the Tribunal would have been final. During the course of this trial the parties, who were represented, made Motion requesting the Referee hear the Appeals under s. 48 and s. 54 of The Drainage Act, although such appeals had been lodged with the Tribunal. Upon submissions from Counsel, the Referee gave an Order dated the 2nd day of December, 2009, which was based on the consents of most parties to have their appeals heard by the Referee under s. 48 and 54, and further arranging the withdrawal of such appeals from the Agricultural, Food and Rural Affairs Tribunal, the Referee decided to proceed with the appeals, using the wider jurisdiction of the Referee under s. 106. The Order provided as follows: "Carl Graham Jewell having attorned to the jurisdiction of the Referee and having given his consent is deemed to have withdrawn his appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal." Judith Gibbs also provided her consent in writing dated the 1st day of December, 2009. Her husband Ronald Gibbs appeared before the Referee on December 3rd, 2009 and confirmed that he wished to have his appeals under s. 48 and 54 of the Drainage Act withdrawn. Reaction for Decision with regard to this Motion was given on the 4th day of January, 2010. In such Reasons, I qualified the jurisdiction of the Referee to exclude parties who were unrepresented or who had not provided their consent. I stated "In relation to those parties, I can find no special circumstances that would allow me to usurp the right of appeal that remains to those parties with the Tribunal. My hearing in this matter as it relates to s. 48 and s. 54 covers only those appeals that have been withdrawn with their resultant attornment to my jurisdiction. “In this particular matter, the Gibbs' and Mr. Jewell were unrepresented. Evidence was given in chief by Thomas Pridham with cross-examination by the unrepresented Appellants and provision of their own evidence.

CARL JEWELL

At the outset the City acknowledged that an adjustment was in order. A Memo in 2007 concluded that approximately 5 hectares (12 acres) should have been assessed to the South Hancock Drain. This lead to a reduction of 3.8 hectares (9 acres) from the watershed of the Short & 2A Drain. During the same exercise, it was noted that the Mollon property being the north half of Lot 19, Concession 14 also needed an amendment due to an error in plotting the watershed boundary of the South Hancock Drain. I note that the Mollon's are parties to the appeal as a result of theirs. 47 of the Drainage Act appeal.

An additional issue under s. 54 of the Drainage Act arose on the Jewell property. This relates an area of 6.9 hectares which drains into a gravel pit located on the south half of Lot 19, Concession 14. As a result of concerns which appear to have been raised at the Court of Revision, that the assessment was too high, investigations were made by R.J. Burnside and Associates Limited of the gravel pit.

According to Mr. Pridham, Mr. Jewell maintained that the pit was actually lower than the drain. During negotiations, the Engineer provided to Mr. Jewell the Decision in relation to the Hyde Municipal Drain Improvements, Branch E in the Region of the Municipality of Haldimand-Norfolk which maintained:

In summary; if it is shown that the lands are in fact in the watershed and waters are artificially caused to flow from those lands, a rebuttable presumption is raised that the lands are liable to assessment for outlet liability. I concur that the onus is then cast upon the appellant to show on the balance of probabilities, that the waters artificially caused to flow do not in fact outlet into the drainage works.

The onus is thus cast upon Mr. Jewell in this situation.

Previously in Referee O'Brien's defence of the Drainage Act he stated "The second essential cornerstone of the Drainage Act is the requirement for a professional Drainage Engineer. The Act requires that a professional Engineer design all schemes and the financial burden of this requirement is relieved by the 1/3 Provincial Government Grant.

Such critical decisions as determining the area requiring drainage, the design of the work and the assessment schedule are the prerogatives of the Drainage Engineer. A coterie of experienced and talented Drainage Engineers has ensured the integrity of Municipal Drains throughout the Province.

In testimony, Mr. Pridham described that there were approximately five gravel pits in addition to the Jewell pit, in this particular portion of the watershed, Mr. Pridham stated: "What we have done in this report, is indicated that we have made no adjustments for depressional areas. It is simply impractical to do so because there is so many of these depressions that have been created, and these depressions, of course, have been created, man-made created by gravel pits and what not. So the difficulty becomes, if there is an adjustment made in one, there possibly should be looked at as the others as well, but it looked from, from what we could see out there that it was likely coming out at the bottom of the hill or somewhere in that area and finding its way down the creek."

The Engineer confirmed that the bottom of the gravel pit was at an elevation higher than the drain. Based on this investigation, Mr. Pridham formed the opinion that 6.9 hectares (17 acres) were within the watershed. On cross-examination Mr. Pridham acknowledged that he was not sure where the water went and that it was percolating out of the gravel pit or the water would come over the sides.

On questioning from the Court as to whether there was anything such as a clay plug which would have kept the water within the watershed. Mr. Jewell's evidence was "no one from the neighbourhood had hit such plug yet."

Mr. Pridham further confirmed that the bottom of a hill of the abutting property of J. and M. Starr, was a pond where he concluded the water would be boiling out. He then suggested the water would follow over the surface of the ground, through the abandoned railway and out to the drain.

Although this opinion is not buttressed by much data other than a profile showing the drain and the pond, both below the water level of the gravel pit; the Engineer did form an opinion. In response to which Mr. Jewell was unable to provide evidence to show that the water wasn't getting into the drain. Such evidence could have been provided by another Drainage Engineer and/or a hydrologist.

As a result, I find that the 6.9 hectares surrounding the gravel pit should remain in the watershed.

RONALD AND JUDITH GIBBS

On the Ron and Judith Gibbs property, however, the Engineer had more difficulty in forming an opinion with regard to the outlet. Mr. Pridham indicated that he had hearsay evidence that a sinkhole located on Lot 7 Concession 10 outletted in the abutting landowners, David and Susan Wright's property on Lot 8 Concession 10. To confirm the evidence, Mr. Pridham attended at the site. The site visit, however, was fruitless in finding any outletting from a sinkhole on the Gibbs property to springs on the abutting landowner's property. He found the springs at the toe of the hill between the sinkhole and the bush on the Wright property, but couldn't find exactly where it boiled out. When he explained to Mr. Gibbs the Hyde decision mentioned above, Mr. Gibbs countered that Mr. Gibbons' report had removed the lands surrounding the sinkhole from the Short drain watershed.

In evidence, the Engineer turned to the Municipality's response to the R & J Gibbs s. 54 appeal. A profile was provided showing the height of the sinkhole, the bottom of the hill where the water is purported to be escaping and the approximate elevation of limestone strata which might prevent water escaping the Short Drain watershed. Mr. Pridham indicated that although he did not know for sure, the water might drain over the limestone and outlet into the Wright bush. However, the topography of the property was such that it could not be through overland flows as there was a hill between these two points. No evidence was given with regard to the limestone strata to indicate that it would not be cracked or have openings into which the sinkhole could drain.

In cross-examination, Ron Gibbs indicated that it was his opinion that given the Gibson report from 1978, which left out the acreage surrounding the sinkhole that there would an onus on the Engineer to prove where the water was outletting. The Gibson report indicated that that Engineer did not know where the water went.

In response to a question whether the Engineer checked geological files of the area to see if the limestone sublayer was bedrock for that particular area. The Engineer confirmed that he did not. In response to the following question by the court "It is often said that the whole concept of the Drainage Act is to turn it over to the expert who is going to provide that scientific basis. It's anecdotal in your situation is it not? A. Mr. Pridham: Somewhat. The Referee finds that Mr. Gibbs has met the onus in the Hyde case by providing the report of a previous expert, Mr. Gibson.

An alternative assessment was provided. While certain owners, Y & B Yeomans, C. Belanger and R & F Chambers did not appeal, this revised assessment based on the sinkhole being removed from the watershed should apply for those properties as well as the appellants Ron and Judith Gibbs and S & D Wright. I so order.

ADDITIONAL REASONS FOR DECISION

At the time of submissions by Counsel, I indicated that I was going to divide my decision in relation to claims under s. 79 of the Drainage Act. I am expanding on that option. In order to provide the Engineers direction in a timely fashion, as the amendment to the report proceeds, I am at this time providing my Reasons for Decision in connection with the appeals under s. 47, s. 48 and s. 54 of the Drainage Act.

The matter of costs, both as to quantum and apportionment, the issue of abandonment and the establishment of liability, if any, under s. 79 of the Drainage Act will be provided in separate Reasons for Decision. As these further Reasons for Decision entertain substantial questions affecting the rights of the parties, time for service of any notice of appeal in relation to these Reasons for Decision will not commence until the additional Reasons for Decision have been provided. The Referee is of the opinion that substantial measures which affect the rights of the parties still remain to be determined.

In their submissions, Counsel has requested that I clear up a number of minor matters arising from the original Orders of Referee O'Brien. Based on the submissions of Counsel, I Order as follows:

1. The Order of 31 st day of August, 2000 restraining the Corporation of the Township of Mariposa, now the Corporation of the City of Kawartha Lakes from undertaking any maintenance on the Short Drain other than maintenance commencing from Station 160+00 up to Station 69+50 is no longer binding.

2. The Order arising from the Application to restrain the Township of Mariposa from undertaking any work on the Fowler Drain and the Short Drain, Branches A & B is hereby vacated forthwith.

3. It is Ordered that the Corporation of the City of Kawartha Lakes, at the direction of its Drainage Engineer being charged with the completion of the Amended Report is authorized to remove such natural barriers as log jams and beaver dams in the watercourse in accordance with the Department of Fisheries and Oceans Screening Environmental Assessment Report dated February 1 st, 2006 prior to completion of any work under the proposed amended report.

DATED at Strathroy, Ontario this 14th, day of January, 2011.

ONTARIO DRAINAGE REFEREE

ROBERT G. WATERS