Kawartha Lakes (City) v. Owners of R.J Burnside, 2011 ONDR 4

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Kawartha Lakes (City) v. Owners of R.J Burnside

2011 ONDR 4

DATE OF DECISION:

2011-05-09

2011-04

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE CITY OF KAWARTHA LAKES

APPLICANT

AND

ALL CURRENT OWNERS OF LANDS ASSESSED OR GRANTED ALLOWANCES PURSUANT TO THE R.J BURNSIDE & ASSOCIATES LIMITED REPORT OF MARCH 20^TH, 2006

RESPONDENTS

REASONS FOR DECISION ON LIABILITY PURSUANT TO SECTION 79 OF THE DRAINAGE ACT -AND- REASONS FOR DECISION REGARDING APPORTIONMENT OF COSTS

As I have indicated in my two prior Decisions dated January 14th, 2011 and March 7th, 2011 on this matter, I am providing separate reasons on the issues regarding costs of the parties and the Corporation of the City of Kawartha Lakes' (hereinafter "the City") liability under Section 79 of the Drainage Act R.S.O. c D. 17, hereinafter referred to as the "Drainage Act" or the "Act".

Proceedings in all matters before the Referee commenced by a Motion dated the 23rd day of May, 2008 requesting a preliminary procedural hearing; this Motion was heard on the 25th day of June, 2008. At that Motion Andrew Osyany, Counsel for the Applicants, Dale McFeeters et al, raised concerns regarding repetition and duplication which might occur if the Hearing before the Referee simply dealt with the matters regarding Abandonment under Section 84 of the Act and Section 47 appeals which had already been instituted. Paragraph 11 of the Order of the Referee of 25th day of June, 2008 lead to the participation of Section 79 Drainage Act claimants. The Order read:

1. The trial of this matter shall proceed as a trial of issues, with oral testimony as to the fulfilment of the Orders of Referee O'Brien dated August 31 and October 20, 2000 and the Appeal of the Report of March 20th, 2006 pursuant to Section 47 of the Drainage Act. Thereafter, evidence will be heard as to the adequacy of the Petition for Abandonment described in the Affidavit of Kenneth D. Becking. Upon completion of these matters the Referee will hear representations as to his jurisdiction to hear evidence relating to assessments and modifications pursuant to Sections 48 and 54 of the Drainage Act. If a Statement of Claim is received regarding these drains pursuant to Section 79 of the Drainage Act, a trial of an issue regarding liability and damages will occur at the discretion of the Referee.

As a result, a Statement of Claim on behalf of the previously described claimants was issued on September 12th, 2008. Thereafter parties to the Section 79 claim participated in the Hearing as well as the various procedural motions during the entire seventeen day trial. Referee O'Brien identified the parties to the statement of claim in his decision on this matter dated October 31st. 2000, Colin Campbell v. Corporation of the Township of Mariposa, Court file 002957. As quoted in my prior decision, Referee O'Brien stated:

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.

As the main action neared completion, it was put forward to the Referee by Mr. Osyany on behalf of the Applicants (described as Appellants) in Court file number CV103/08 that should liability be found against the City, a further trial would be directed for the assessment of damages. This proposal received the consent of Counsel representing all represented parties at the Hearing.

The Applicants, Dale McFeeters et al, alleged that the Respondent, the City, has failed to keep the Short Drain in repair, the Short Drain being a municipal drain within the former Township of Mariposa, now in the City.

The Applicants have asserted that numerous notices were given, both informally and in written form, but the Respondent failed to affect the repairs. The Applicants allege common-law liability to the City, asserting that unless it acted with due diligence, it was liable. The specific allegations regarding common-law liability of the City were that it was inactive, engaged in needless and protracted consultations instead of making decisions and acting to remedy lack of maintenance.

The Applicants further alleged that the Respondent has a strict liability pursuant to provisions of Section 79 of the Act; even due diligence was no excuse, or in the alternative, the City failed to act with due diligence. McFeeters et al. state the onus of proof of such due diligence is upon the City.

In response, the City has stated in its pleadings that it followed the practices and procedures required by the Drainage Act as modified by ancillary legislation such as the Fisheries Act, Environmental Protection Act etc. and that such practices and procedures are also modified by the Orders and Reasons for Decision of Referee O'Brien in the year 2000. Finally, the City states that it has acted throughout with due diligence and that any delays in the cleanout or maintenance of the Drain are solely attributable to the actions of third parties other than the City.

The applicable sections of Section 79 are as follows:

Power to compel repairs

79. (1) Upon forty-five days’ notice served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected. R.S.O. 1990, c. 0.17, s. 79 (1); 2010, c. 16, Sched. 1, s. 2 (29).

Municipality liable for damages caused by non-repair ill Despite subsection (1), the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1) upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works. R.S.O. 1990, c. D.17, s. 79 (2).

To aid in understanding this objection, regard should be had to the following definitions under the Drainage Act.

Definitions

"drainage works" includes a drain constructed by any means, including the improving of a natural watercourse, and includes works necessary to regulate the water table or water level within or on any lands or to regulate the level of the waters of a drain, reservoir, lake or pond, and includes a dam, embankment, wall, protective works or any combination thereof;

Maintenance is defined as follows:

"maintenance" means the preservation of a drainage works;

Repair is defined as follows:

"repair" means the restoration of a drainage works to its original condition;

CHRONOLOGY OF REQUESTS FOR MAINTENANCE AND MUNICIPAL RESPONSES TO SECTION 79 CLAIMS BEFORE 2000

Terry Parker appeared on behalf of Tampa Farms Limited, Dale McFeeters appeared on his own behalf and on behalf of Darmar Farms Inc., and Dale Hamilton appeared on behalf of himself and his wife Lynda and on behalf of Hyspruce Holsteins Inc. and William Bruce McKeown appeared on behalf of himself and his wife Sonya to provide evidence regarding their claims. In addition, Paul Brown, who joined later in this matter, provided evidence.

In response, the Municipality provided evidence through John Kuntze, the Drainage Superintendent for the Municipality from 1981 to 1996, Kenneth Becking, the Director of Public Works and Thomas Pridham who completed the Report for the Repair and Improvement of the Short and 2A Drains under Section 78 of the Act.

The first request for maintenance came in the form of a letter from James Paul to the Township of Mariposa (hereinafter "the Township") dated November 1ih, 1986 requesting a clean out.

John Kuntze of K. Smart Associates Limited, who is a Drainage Engineer, acted as Drainage Superintendent of the Township from 1981 to 1996. He provided a report dated May 28th, 1987 to John Doble, Clerk Treasurer of the Township and copied this report to Mr. Paul, together with some of the later Section 79 claimants being Ron Hamilton, Evelyn Cleland, Tampa Farms, Dale McFeeters and Gary Marquis. The report contained an acknowledgement that there was a rock outcrop on the Marquis farm on the line between Lots 11 and 12 in the centre of Concession 10. The report confirms that during a previous drain reconstruction, some rock was excavated using conventional excavation equipment. At the time it was deemed the rock was not causing a significant obstruction to the channel. It was therefore decided to let the rock weather naturally, rather than incur the cost of major blasting or jackhammering as part of the cleanout.

Three days prior to the date of Kuntze's report, Colin Campbell and six other assessed owners requested a Tribunal Hearing as a result of concerns regarding added costs of this work. At this time the Township received an opinion from its Solicitor that the removal of the rock represented an improvement rather than maintenance or repair.

A letter dated November 12th, 1987 from Kuntze confirmed that the work was completed in September of 1987. In addition, it confirmed that beside the removal of sediment, there was a removal of rock outcrop of approximately 300 mm to 450 mm in depth.

The next request for maintenance was made by Seldon Parker, President of Tampa Farms Limited on November 3rd, 1990. This was a request for further maintenance on the Short Drain. The specific request was to clean out any portion of the project which had not been previously cleaned out, Mr. Parker further requested that the Township complete the project according to the original Engineer's Report of H.M. Gibson Ltd. and remove all obstructions downstream as far as Lot 19, Concession 13. Lot 19, Concession 13 is located on the 2A Drain. It was not among the lands within the former 2A Drain which were consolidated in the Gibson Report as part of the Short Drain.

As Drainage Superintendent, Kuntze wrote to the Clerk of the Township confirming he would conduct an examination of the Short Drain on Concession 10-11 Road (Quaker Road) downstream to County Road 6 and the 2A Drain from County Road 6 downstream to Lot 19, Concession 13 as requested by Mr. Parker. County Road 6 is now described as Eldon Road and this investigation of the Short Drain, in essence, was to end very close to Hub 0 as described in previous documents as the end of the Short Drain where it was incorporated into the 2A Drain.

Several months later, Mr. Parker, on behalf of Tampa Farms Limited, altered the request of November 3rd, 1990, asking for a cleanout of beaver dams and any other obstructions, leaving the other work requested in the November 3rd letter to a later date if the performance of the drain was improved. The area requested to be cleaned was identified as being from the multi plate culvert downstream to Lot 19, Concession 13. The multi plate culvert is located on Peniel Road.

Kuntze prepared a report from this further request, addressed to Sandra Lloyd, Clerk of the Township. The report indicated a clean out of Peniel Road upstream could be considered, but that there did not appear to be an immediate need for a clean out downstream of Peniel Road. The report further indicated that further inspections were to be carried out on the 2A Drain downstream of the Short and Kievall Creek Drain outlet. Maintenance was ordered in the form of a resolution from Council to the road superintendent, asking that he remove the beaver dam located on the Short Drain at the north half of Lot 10, Concession 10 and on the Kievall Creek Drain at Lot 11, Concession 12.

This appeared to satisfy parties as there were no further complaints until a letter was received by Council June 2nd, 1994 from Seldon Parker. Mr. Parker's concern was that since the repair of the drain and cleanout in early of 1983, as a result of the Gibson Report, many improvements to roads, ditches and an additional clean out of the Kievall Creek Drain had occurred. This had added undue strain to the outlet area of the Short Drain system. Seldon Parker's letter requested not only repair but improvement. He indicated that he felt this would relieve the flooding on Mr. Campbell's property. During this period, there were requests for the removal of beaver dams which appeared to have been complied with by Council.

The letter dated May 31st, 1994, Dale McFeeters joined with Seldon Parker in connection with the previously mentioned complaint. Unlike Mr. Parker, Mr. McFeeters requested a clean out of the A and B Branch of the Short Drain plus any clean out of the Short Drain required to provide adequate outlet for the tile drains on Lot 11, Concession 10, and Township of Mariposa. This letter, similar to Mr. Parker's, noted that greater than 10 years had passed since maintenance had been done. Council quickly passed on these requests to its Engineer.

The reply from K. Smart Associates Limited occurred on August 29th, 1994 which included a recommendation of a clean out upstream from the junction of the Kievall Creek Drain with the Short Drain upstream. As Drainage Superintendent, John Kuntze added the following comment:

However, I certainly will not recommend this clean out work be completed until such time as the matter of the well interference complaint on the Campbell property has been resolved. Presently I would anticipate that this will be resolved in the next month.

The well complaint was not cleared up for fourteen months.

The well complaint of Mr. Campbell had surfaced in 1983, after the construction of the drain pursuant to the Gibson Report, as amended. At that time the Ministry of Environment (hereinafter referred to as M.O.E.) started an investigation but it wasn't pursued. In 1991, the issue was reopened by the M.O.E. and a detailed investigation was made of the well concern.

As a result, the Township hired a consultant, Agra Earth and Environmental, to conduct a study. Its report was forwarded to the Township September 26th, 1994, indicating that the well on the Colin Campbell property was not hydraulically connected to the Short Drain. This report was forwarded to the M.O.E. on October 14th, 1994. However, the finds of the report appeared not to satisfy the M.O.E. and a notice was issued to the Township preventing work on the drain pursuant to Section 34(7) of the Ontario Water Resources Act on July 14th, 1995. It was not until November 1^st, 1995 that the order was withdrawn when the M.O.E.'s testing confirmed that Colin Campbell's water well supply was adequate. Two things came from the Ministry's November, 1995 letter. Firstly, the well was very susceptible to fluctuation in ground water levels and seasonal variations in precipitation. Also, the M.O.E. believed that the construction work on the Short Drain caused the destabilizing influence on the local aquifer, which in turn increased the well's susceptibility to these natural variations. Their research made them realize that technically it was impractical to prove or quantify this effect.

In the meantime, while investigations were occurring regarding the well water complaint and in turn delaying the maintenance, Dale McFeeters forwarded a letter to Ontario Drainage Referee O'Brien appealing under Section 79(1) of the Act to have repairs made to the Short Drain. This letter was dated June 28th, 1995 and it noted that more than a year had passed since asking for repairs. This letter was forwarded in July to the Drainage Superintendent.

Almost immediately after receipt of the letter from the M.O.E., Drainage Superintendent Kuntze indicated to the Clerk of the Township that it must proceed as quickly as possible to deal with the need for maintenance on the Short Drain.

A meeting was scheduled with landowners for November 22nd, 1995. The ostensible reason for the meeting was to discuss the proposed clean out and confirmed that the notice indicated there would be no further meetings or reports.

At this juncture, the Drainage Superintendent ran into difficulties in his dealings with the Council for the Township.

Colin Campbell and Raymond Chidley became Councillors for the Township. Besides Colin Campbell's well documented dislike of the Drainage Act and his thorough use of its appeal provisions, he was concerned with flooding at the north end of his property. Raymond Chidley was involved with the removal of any dealings with the control structure on his property and the ratcheting back of the project undertaken through the Gibson Report. At a meeting on August 19th, 1996, Council for the Township passed a number of resolutions which were descriptive of their attitude to their obligations under the Drainage Act. A complete set of these resolutions is contained in Exhibit 8 in this trial; however, I provide portions of each of the resolutions which are descriptive of Council's attitude to its obligations under Section 79 of the Act.

RESOLUTION 96-607

This resolution was moved by Colin Campbell, seconded by Raymond Chidley and carried by a vote of 4 -1.

"Whereas the council of the Township of Mariposa acknowledges the agricultural value of municipal drains and believes agricultural drains will continue to be a vital part of agribusiness in Ontario; and

WHEREAS members of municipal council's must recognize that first and foremost there role is one of representation;

AND WHEREAS the Drainage Act removes from local council's ability to be responsive to their electorate and the Drainage Act unfairly encourages petitions of drainage works and almost ensure project completion based on absolute minimum conditions;

FURTHERMORE, whereas council feel that their roll under the Act is purely administrative; that very little relief is offered under the Act allowing a council to argue on the issue of accountability,

THEREFORE, BE IT RESOLVED that a detailed review of municipal drainage works in the Township of Mariposa be undertaken to establish the level of drainage projects past and present and future.

ALSO, that the Ministry of Agriculture and Rural Affairs be contacted in an effort to help orchestrate the review and that a letter be sent to the Minister of Agriculture and Food Affairs expressing Mariposa Townships concerns of the inherent inequalities in the Drainage Act. The Minister is also requested to strike up a review of the Drainage Act and to make changes to reflect current social economic pressures and to address limitations on elected officials in dealing with the Act as responsible, representative member of office. Further that the motion be circulated to all rural municipalities for support to· the motion."

RESOLUTION 96-608

This resolution was moved by Ray Chidley seconded by Colin Campbell and was carried by a vote of 3 -2. It states:

"WHEREAS council is deeply concerned with the level of drainage works in Mariposa Township past, present and future;

AND WHEREAS council freely admit to the merits of drains and drain maintenance;

AND WHEREAS this council feels it has an obligation to address the issue of drainage in Mariposa;

THEREFORE, BE IT THEREFORE RESOLVED that effective immediately, the Drainage Superintendent for the Municipality is to be notified that no work is to be undertaken unless specific written instructions are given by the municipality."

RESOLUTION 96-609

A further resolution 96-609 was passed by Council on a vote of 4-1 requesting that on the McFeeters Drain, Burnside and Associates readdress the total land requiring drainage.

RESOLUTION 96-610

Finally, Resolution 96-610 was moved by Ray Chidley, seconded by Colin Campbell and was carried by a vote of 4 -1:

"WHEREAS this council feel that the Drainage Act is not a current document reflective of current social and economic realities;

AND WHEREAS Mariposa council feel that the Act is antiquated, biased and not legislation that address the political and planning realities of today;

AND WHEREAS this council acknowledges the original intent of the Act and supports the agribusiness benefits the Act strove to obtain, this council also realizes that the Act has not taken into account urban sprawl, recession, reckless planning, sporadic severance's and other developments thereby rendering the Act outdated, unworkable and archaic.

FURTHERMORE, the Act has proven to be counter productive to the political process in that it removes elected officials from the role of policy makers and makes them defacto drainage work takers since the Act is heavily biased in favour of municipal drains.

THEREFORE, BE IT RESOLVED THAT, whereas this council feel their role as responsible elected officials has been abandoned by the Act (in fact, has been removed), the council of the Township of Mariposa will seek advice from the Ministry of Agriculture, Food and Rural Affairs on what course of action is open to them to alter the act to reflect current realities and to allow elected officials to once again be representative;

AND, that the legal counsel of the Municipality be contracted to give an opinion on the feasibility of challenging the Drainage Act so that control of drains in the Township of Mariposa is returned to the officials elected to guide the affairs of the township."

The minutes also show that Deputy Reeve Kelly, who opposed each of these motions, wished the record to show the following:

Deputy Reeve Kelly requested that the records show that there will be probable cost to taxpayers for legal expenses when she believes this Council will be unsuccessful in changing the Provincial Drainage Act. Also, she believes that this Council could face law suits for not dutifully carrying out their role under the Drainage Act.

According to John Kuntze, it was his intention in July of 1996, to set up a tender document, to put the work out for tender, in an effort to get the maintenance work underway. By a letter dated November 22nd, 1996 to the Clerk of the Township, John Kuntze confirmed he had suspended work on the Short Drain cleanout, among other drains. At the end of the same year, Kuntze confirmed that the contract with K. Smart Associates Limited was not renewed appointing him as Drainage Superintendent.

In early January 1997, Dale McFeeters sent a letter asking for a meeting with the new Drainage Superintendent, Brian Greck of Aquafor Beech Limited. Council decided through a resolution of January 20th, 1997 that the letter of McFeeters is forwarded to the new Drainage Superintendent. It would appear that the Council was attempting to return the responsibility of arranging cleanouts to the Drainage Superintendent. In the meantime, Dale McFeeters requested that an appeal for maintenance be forwarded to the Ontario Drainage Tribunal under Section 51(1) of the Act and provided a Notice of Appeal to the Ontario Drainage Tribunal.

The appeal was submitted under Section 51 (1), but it requested the Township to fulfil its obligation for maintenance under Section 74 of the Drainage Act. The Ontario Drainage Tribunal's response was that Mr. McFeeters should look for his relief pursuant to Section 79 of the Act.

By letter dated April 14th, 1997, Mr. McFeeters noted that there had been no response from the Drainage Superintendent to a request for a site meeting with him and with spring runoff, problems were becoming more urgent. Council's response came by letter dated May 9th, 1997, in which it suggested Mr. McFeeters be more specific in describing his drainage problems. This appears to reject the meeting that Mr. McFeeters had requested with the Superintendent.

Mr. McFeeter's response was very specific as to his maintenance requests regarding the Short and 2A Drain. He ended the letter with the following phrase:

"I will expect an immediate response from the Drainage Superintendent on these matters and I hope Council will not interfere with the duties of the Drainage Superintendent.

In a document described as a "General Report" dated June 26th, 1997 to the Municipality, Drainage Superintendent, and Brian Greck indicated the following with respect to the Short Drain main branch:

"This drain has considerable history and a variety of issues related to it (e.g. well water supply, design capacity, flooding, loss of trees, destruction of fish habitat, legal limits). As such, I have initiated work which involves several tasks listed below."

Of the tasks completed by Mr. Greck, these were instructive:

• inspection of drain by canoe from 11th to 13th Concession (completed with councillors C. Campbell and R. Chidley)
• review of historical issues on the drain (meeting held with Councillors C. Campbell and R. Childley); and
• review of previous and existing by-laws, tribunal decisions related to the short drain (ongoing)30

In his General Report, Mr. Greck planned to have his Short Drain report completed by July 25th, 1997. This appears to have been done and a public meeting was held on September 29th, 1997. This led to a deputation from Mr. McFeeters and Mr. Parker, among other attendees, to the public meeting.

Council's response, as provided by Sandra Lloyd, the Clerk was as follows:

Council has asked that I inform you that it is concerned with a timely reply to your request; however, a viable and responsible reply must not be set aside in a call for speed.

By the end of October, Aquafor Beech Limited had submitted a report to Council for the Short Drain maintenance dated October 23rd, 1997. This report is of interest because it takes positions which appear to be contrary to the position taken by the prior superintendent and subsequently by Mr. Pridham in his report of March 2006. The recommendations were as follows:

Problems surrounding the maintenance of the Short Drain go beyond those typically considered as the responsibility of a Drainage Superintendent under the Drainage act. As such, it is beyond my responsibility to make any recommendations other than that regarding a cleanout along those sections of drain for which I believe a clean out is necessary. Notwithstanding the above statement, it is my professional opinion that the current design of the Short Drain does not meet the level of drainage expected by some landowners for land location in Concession 10 Lots 11 and 12, and that any clean out of the drain will provide only a marginal improvement to its overall performance.

Drainage Superintendent Greck followed up with 6 recommendations.

In response, Council's sent a letter to Dale McFeeters dated October 28, 1997, in which it confirmed a resolution that the Drainage Superintendent proceed with recommendations 1 and 5 of his October 23rd report on the Short Drain Maintenance "and further the Drainage Superintendent carry out a further review of recommendation 3 and report back to Council as soon as possible.,

Recommendation 1 was the removal of a beaver dam on the 2A Municipal Drain prior to the next spring and 5, was, as an interim solution, a bottom cleanout of the Short Drain Branches "A & B" to remove vegetation growth and restore its design grade.

Recommendation 5 came with a caveat suggesting landowners should implement measures to limit the supply of sediment flowing to the drain or that the drain be redesigned to provide a greater level of clearance between the drain bottom and tile outlet. This, Brian Greck suggested, would need a new report.

Recommendation 3, which was not accepted, proposed:

The removal of accumulated sediment, debris (at Culverts and fallen trees), and sections of rock bank and bed at locations not yet excavated to the engineers specifications between station 69+50 to 190+08.

Superintendent Greck suggested that this work be completed by an excavator and suggested the work would provide improvements of drainage during high spring flow. Station 69+50 is the entrance of the Branch A into the main drain at Quaker Road while station 190+08 is the juncture of the Kievall Creek Drain with the Short Drain. Council stalled this recommendation. It is interesting to note that the Drainage Superintendent did not recommend maintenance work from the start of the original Short Drain downstream to Hub 0, as he indicated it would not provide significant benefit.

Mr. Greck indicated that if the level of maintenance did not satisfy Council, a study be completed to reassess the suitability of the existing drain, including Branches A and B. He suggested this report include a cost benefit analysis and an environmental appraisal. (Recommendation 4).

This recommendation, in essence, is the report that was eventually ordered by Referee O'Brien in connection with the Short Drain and expanded by Council to include the 2A Drain.

­Most interesting of all, Mr. Greck stated in paragraph 6

At this time I do not believe that a petition to abandon the Short Drain would resolve the problems at hand and would likely result in more difficulties and cost to land owners in the long term. As such, I recommend that an alternative solution be considered prior to: proceeding with actions towards abandoning the Short Drain, see item 4 above.

In his Examination in Chief, John Kuntze pointed out that Recommendation 3, upon which Council suggested more studies should occur, was the same recommendation that he had made in 1995.

At the Township's November 17th, 1997 Council meeting, a further resolution was made which appears to have deferred Recommendation 3 on the rock clean out and Recommendation 1 on the beaver dam to the new Council. This deferral is confirmed by the tender document which was completed by Aquafor Beech Limited to clean out Short Branches A and B, being Recommendation 5 only. Brian Greck indicated in a letter that the tender would be issued on December 2nd, 1997.

In December of 1997, Tampa Farms Limited (Seldon Parker) and Dale McFeeters retained Counsel who advised again that they wished the cleanout to occur and that they were not in an agreement with the current Superintendent's proposal. The cleanout proposed by Brian Greck for Branches A and B was confirmed by John Kuntze and the claimants as rather minimal.

Aquafor Beech Limited's contract was not renewed on January 1st, 1998 and the previous superintendent John Kuntze of K. Smart Associates Limited returned as Superintendent.

An election had occurred and a different Council was in place.

No work on the cleanout appears to have occurred until well into the growing season for 1998, as cleanout specifications and estimates were not supplied until August 12^th, 1998.

While preparation for cleanout was being worked upon, a letter was forwarded to the Township from Colin Campbell dated August 19th, 1998 indicating that he disagreed with the excessive maintenance and had concerns that Superintendent Kuntze was authorizing work going beyond the designed grade. He asked this complaint be forwarded to the Drainage Referee but took no steps to formally lodge an appeal in accordance with Regulation 275, Rules of Practice and Procedure.

The situation in connection with Branch A and B of the Short Drain was further complicated, as noted in Dale McFeeters' letter to Council on October 1st, 1998, in which he indicated that additional lands not assessed under Branch B were being brought into Branch B of the Short Drain. He requested the Township Road Superintendent petition under Section 4 of the Drainage Act to incorporate the additional lands into the drain. Among other recommendations in John Kuntze's report of October 13th 1998 to the Clerk of the Township, he stated:

Therefore, it is my recommendation before any further cost is expended on maintaining Branch A or B that a new engineer's report should be prepared to address the assessment concerns described above.

The assessment concerns related to the fact that in the original 1978 report there was no inclusion of any assessment to White Rock Road or any of the lands along White Rock Road, nor was there any assessment attributed to the fairly large watershed area south of Skyline Road (Highway 7) and centering on White Rock Road.

The Road Superintendent, who had been requested to sign a petition to bring these lands in to the Drain, felt reluctant to do so. As a result, Dale McFeeters, Tampa Farms Limited and Evelyn Yeoman signed a petition under Section 76 and Section 78 of the Act to have the grade levels corrected and have the assessment schedule in the drainage watershed of A and B Branches be corrected. Council complied with this request in 1999.

The next step in attempting to respond to the work suggested by Drainage Superintendents John Kuntze and Brian Greck was a memo to Council given by John Kuntze on October 4th, 1999 in which he once again recommended the cleanout of the drain be undertaken from Eldon Road near Hub 0 to the commencement of the drain at Skyline Road43. John Kuntze was hoping this tender would be completed by early November 1999. Tenders were received and a recommendation was given to the Clerk of the Township dated December 13th, 1999.

In the interim, it was decided that the Road Superintendent would petition the incorporation of the north road ditch on Skyline Road at Lot 11from the existing cross-culvert to the upstream end of Branch B within the Short Drain Branch B for purposes of future maintenance. In March, a report was completed on the Improvement and Extension of Short Drain, Branches A and B, which was completed March 10th, 2000.

Meanwhile, delay was occurring in the Short Drain Main Branch cleanout because of fisheries concerns, which were submitted to the Kawartha Region Conservation Authority. By April of 2000, Mr. Kuntze had not received approval from the Department of Fisheries and Oceans for the maintenance proposed and it appeared further that it would be unlikely to occur until mid-June.

A new stage in the proceedings occurred with the appeal by Colin Campbell and other parties to the Tribunal and to the Referee dated June 30th, 2000.

A description of what followed next can be found in my initial Reasons for Decision dated January 14th, 2011 pages 1 through 14, which I will not review at this time. However, some of the delays which have occurred subsequent to these appeals by Colin Campbell and others will be addressed in my discussion of the issues raised by the Section 79 claimants.

ISSUES

The portion of the trial relating to lack of maintenance revolved around the following issues:

1. Was the Township of Mariposa and its successor, the City of Kawartha Lakes, required to complete maintenance requested by Parker and McFeeters in a timely fashion? Did it do so? Did the Township and the City, collectively described as the Municipality, receive the required notice under Section 79?
2. Were the cleanouts undertaken under the supervision of the Drainage Superintendent adequate to fulfill the Municipality's responsibilities pursuant to Section 79 of the Act?
3. To what extent do the obligations imposed on the Municipality, pursuant to Section 79 of the Act require extension of maintenance and repair of drainage works to go beyond the drain on which the original request was made if such work was necessary to do effectual maintenance and repair?
4. To what extent is the Municipality responsible for loss of a drainage profile, failure to coordinate installation of road works to match the design grade of a drain, and failure to follow-up on extras cited in an original report? Can these failings be included in Section 79 liabilities?

1. TIMELINESS AND NOTICE

A discussion of timeliness cannot proceed in the abstract. The circumstances surrounding the Township and the drainage community must be taken into account in establishing timeliness.

What, however, is undisputed is the need for maintenance on the Short Drain. From the first request of James Paul in 1986 for a clean out, it was evident that work needed to be done. All parties agreed that the initial clean out requested in 1986 was carried out in 1987.

Similar requests were acted upon until the first allegation of delay occurred in 1994. At that time, Superintendent Kuntze cited the well water interference claim of Colin Campbell as the reason for delay. According to Superintendent Kuntze, the M.O.E. reopened the well water complaint of Colin Campbell in 1991 at which time it was decided it was not appropriate to be doing maintenance on those parts of the Short Drain that could in any way be linked with the complaint. I agree.

When a further request came in 1994. Superintendent Kuntze completed a report on August 29th, 1994. At that time he felt that the well water complaint would be resolved in a month at that time. It was not completed until 1995. With the withdrawal of the order, effectively the Municipality was in a position to proceed; the Municipality moved very quickly with meetings being scheduled to discuss the proposed clean out within days of receiving notice that the order was withdrawn. At this point, the issue of timeliness comes to the forefront.

Superintendent Kuntze had prepared reports on May 27^th, 1991 and a further report on August 29th, 1994. Preparing tenders should have been relatively straight forward. In early 1996, it is obvious that the Drainage Superintendent ran into interference from Council.

While it is not a hard and fast rule, evidence was provided by Tom Pridham in this action when questioned for his opinion as to what would be a timely response to a request for maintenance.

In questioning on Tab 82, Exhibit 1 Volume II, the Aquafor Beech Report, on maintenance, the following exchange occurred between Mr. Osyany and Mr. Pridham.

Q. Do you see any reason for council to have not directed?

A. Certainly there's nothing evident.

Q. So now if you go back to 1994 when all of this cleanup and work has been requested -we're up to October '97 -do you see anything in the record that you've looked at to justify not doing the maintenance work?

A. It appears from the chronology, Mr. Osyany, it's a lengthy process. They didn't move on with the maintenance activities.

Q. Can you see any reason why this wasn't done if it was requested in 1994 that no instructions were given to go ahead until '97?

A. Not really. I think maintenance activities, if the request is submitted in '94, the maintenance work should, you know, hopefully be completed '95 or something like that. Maintenance is quite a bit different than preparing a report.

Aside from spot maintenance or emergency maintenance, this would appear, barring special circumstances, to be a reasonable time frame. I accept Mr. Pridham's opinion as reflective of what should be current practice. As a result, in view of the existence of the order from the M.O.E., which was not presented to Mr. Pridham at the time of his cross-examination, maintenance should have been completed within the 1996 crop year. As such, I find the Municipality is liable in damages commencing in 1996 to the owners who provided notice to the Municipality in accordance with Section 79.

Kawartha Lakes has inherited a problem caused by the Council of the Township in which Councillors Campbell and Chidley allowed their personal concerns and distaste for the Drainage Act process to cloud their duties as Councillors. In the situation that the Township found itself in in the spring of 2006, it had a clear duty to administer the Act. While Councillors Childley and Campbell did not represent the majority, they were active in a process in which, although they were certainly allowed to legitimately raise their concerns regarding the Drainage Act and its possible effect on themselves, they exposed the Municipality to liability. While it was alleged during the trial that there was conflict of interest of the two Councillors pursuant to the Municipal Conflict of Interest Act R.S.O. 1990, c.M.50, this in fact was not the situation. Section 5 of the Act did not apply to Councillors Chidley and Campbell (Section 4 applies where Section 5 does not.)

"Section 5 does not apply to a pecuniary interest in any manner that a member may have; ...

(e) by reason of having an interest in any property affected by work under the Drainage Act . ..as the case may be, relating to local improvement;"

Therefore, while those two Councillors had a particular interest in the Short and 2A Drains they did not violate the Municipal Conflict of Interest Act. They placed their personal interest above that of their community. Nowhere among the evidence presented has the Referee seen an opinion which was to have been provided by Counsel to the Municipality on the feasibility of challenging the Act so as to return the control of drains in Mariposa to its officials elected to guide the affairs of the Township.

As often stated by prior Referees, the Act can indeed be Draconian. However, the alternative to generational and endless law suits between parties wanting drainage and those parties failing to see the social and economic utility of it is not found in the position taken by the Council of the Township in 1996. The councillors had a democratic right to request a legislative review and possible change to the legislation but they didn't have the right to thwart it.

There are many obligations placed upon municipalities by the Province. As described in Court File number 002957, Colin Campbell ats. The Corporation of the Township of Mariposa, Referee O'Brien asserted the Municipality is a cornerstone of administration of the Drainage Act. He stated:

The third cornerstone is the administration by a Municipality. This provides an independent administration at the local level, traditionally without bias and with competent accounting controls. Local Councils also bring to the process an element of local knowledge that can frequently relieve the undue hardships through the process of the Court of Revision etc.

Unfortunately, the lack of bias was not evident in 1996.

­It should be added that in the matter of maintenance, the cost to the Municipality is minimal. The assessed owners are the ones that bear the cost and they have their remedies under the Act.

While it might be argued that municipal liability is limited in the situation where a policy decision is made by council, it is instructive to note that Section 450 of the Municipal Act, 2001, S.O. 2001 c.25 limits liability only in certain circumstances.

Policy decisions

450. No proceeding based on negligence in connection with the exercise or no exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of a municipality or local board made in a good faith exercise of the discretion, shall be commenced against,

(a) a municipality or local board;

(b) a member of a municipal councillor of a local board; or

(c) an officer, employee or agent of a municipality or local board. 2001, c. 25, s.450.

The limit of this exemption, for good faith exercise, relates to a discretionary function. Section 74 of the Drainage Act mandates that a "drainage works" shall be maintained and repaired by each local municipality through which it passes.

Sections 74 and 79 of the Drainage Act provide no discretion. As a result, the policy decisions made by Council in 1996 do not exempt Council from its obligations under Section 79 of the Act.

I find that there is no real issue regarding notice. Notice as I have already described occurred on November 3^rd, 1990. Although partial maintenance occurred with the Road Superintendent removing a beaver dam, a request for further study was made. More importantly there was further notice received on June 2nd, 1994. On August 29^th, 1994, this notice was acknowledged with the caution regarding the well interference claim. If that were not enough notice, there is the notice in the form of a letter forwarded by Dale McFeeters to the Ontario Drainage Referee through the Township.

2. WERE THE CLEANOUTS UNDERTAKEN ADEQUATE TO FULFILL MARIPOSAI KAWARTHA LAKES' RESPONSIBILITIES?

I find that the cleanouts undertaken were inadequate. I came to this conclusion based on the evidence described in the chronology, especially in the refusal of the Municipality to complete maintenance in accordance with the proposal of Superintendent Kuntze and the recommendations of Brian Greck where it deferred Recommendation 3 on the rock cleanout and only completed part of Recommendation 5. Therefore, while the limited cleanout work that was undertaken will be taken into account in the assessment of damages, they were in no way adequate enough to fulfill the Municipality's responsibility under Section 79.

The fact that there were no cleanouts from the junction of the Kievall Creek Drain with the original Short Drain to Hub 0 speaks of a failing of the Municipality to provide relief through improved outlet.

In addition, there was notice suggesting that the trouble with the Short Drain lie with the 2A Drain. During cross-examination of Superintendent Kuntze, the following questions were asked by Andrew Osyany:

Q. Now, as drainage superintendent you were familiar with these drains, the Short and the 2A.

A. Yes.

Q. And was it your opinion that the 2A Drain had to be maintained in order for the Short Drain to work properly?

A. That's the conclusion I came to eventually. I don't think that that conclusion was necessarily there in 1987, but by 1997 or by 2000 it was becoming apparent that something more was going to need to be done.

Later, the question was put in another way:

Q. So, Mr. Kuntze, as a professional who's done work as a drainage superintendent for x number of years, it took you about ten years to realize that the 2A Drain needed to be maintained in order for the Short Drain to work properly is that correct?

A. Yes that would be what I have been saying, yes.

In essence, there is an admission that none of the proposed cleanouts which were opposed by Council would have done on the job without work on the 2A Drain.

3. To what extent do the obligations imposed require extension of maintenance beyond the drain on which the original request was made?

Although the original requests were made on the Short Drain, the 2A Drain received mentioned very quickly on in the process with the request of Seldon Parker on November 3rd, 1990.

Given the definitions of "drainage works" cited previously and those of "maintenance" and "repair" and given the mention in the various notices which extended into the 2A Drain; and although the Short Drain received disproportionate mention in the requests for maintenance, it is an obligation, where there is no gap between the two drains, to review a downstream drain's sufficiency of outlet to see whether it should or should not be part of the maintenance and repair work. This was not done until well into the process.

4. To what extent is the Municipality responsible for loss of a drainage profile, failure to coordinate installation of road works to match the design grade of a drain, and failure to follow-up on extras cited in an original report?

The lack of a drainage profile, whether lost through negligence or inadvertence cannot relieve the Municipality of its responsibility to maintain a drain. When that loss of the profile became evident, work should have been undertaken by the Municipality to establish a profile. The Municipality cannot plead its own failure to maintain records, which it was required to do as part of its obligations under the Drainage Act as a defence to its further obligations under Section 79(1) of the Act.

Failure to coordinate the installation of the road works on Peniel Road with the Short Drain profile raises concerns which may occur for many municipalities. Often the forces used by a municipality in connection with road work are not identical to those involved with drainage. We have had the uncontradicted evidence of two professionals on this problem; one, the drainage superintendent, John Kuntze and the drainage engineer, Thomas Pridham.

In cross-examination by Mr. Courey, Mr. Pridham acknowledged that the twin multi-plates, at Peniel Road were approximately six inches above grade line. When asked whether this was significant, Mr. Pridham indicated that although there would be a loss of grade for about one thousand feet upstream, the drain would work.

The evidence of Superintendent Kuntze on cross-examination by Mr. Osyany was that this culvert, which was placed on Peniel Road after the work on the Gibson Report in 1983, was installed in 1991. According to Superintendent Kuntze, the twin culverts were to be placed at the correct elevation and the direction of elevation was given by the drainage superintendent himself. Superintendent Kuntze acknowledges that Mr. Pridham in his report has indicated it was a higher elevation, but he had not checked it out.

Superintendent Kuntze's answer regarding its effect on the drain was as follows:

"I haven't gone through the exercise to see exactly how it would pan out, but it appears from Mr. Pridham's report that the culverts aren't as deep or don't conform with the Gibson profile. Now, that's the installed elevation. Right?"

It was confirmed in testimony by Mr. Pridham that it would cost approximately $250,000.00 to replace the culvert. However, there has been no evidence introduced by the Claimants to indicate that this mistake had a significant effect on the operation of the drain.

In connection with the failure to follow-up on extras cited in the original Gibson Report, evidence was given that there were approximately two places in the drain where there were rock outcrops. Under maintenance proposals, there were suggestions that these rock outcrops be removed. The controversy with these rock outcrops arose as a result of them being extras in the report. Mr. Pridham explained "specific rock outcrops were not identified in the Gibson Report, however, they were included as an extra to the contract." The question was raised to Mr. Pridham:

THE WITNESS: ... "Why should we have to pay for the rock removal twice when we've already paid for it once?" But in effect the assessed owners never paid for it because they didn't take it out."

Q. And typically, and we've seen them even in the old contract, tendered that way because they don't know how much rock they well encounter, so it's difficult for the contractor to give a lump sum bid, so they bid the excavation as though there's no rock, and if they encounter the rock they're paid by .. .

A. Cubic metre.

Mr. Pridham confirmed that this was a common practice. The final confirmation comes as follows in an exchange between Mr. Pridham and Mr. Courey:

Q. It's not meant to make it optional, is it? In other words, the grade line still governs. The drain is supposed to be constructed down to the grade line.

A. That's correct.

The Municipality, for some reason, failed to enforce its contract. I would assume that this failure was as a result of costs savings they had hoped to gain by not completing the contract.

Regardless, during maintenance, the Referee finds that in a situation where the extra was not completed, the maintenance to be undertaken can complete the extra.

In my opinion, by using the grade line in the report, maintenance, including the removal of rock, can be deemed to be preservation of the drainage works. While "repair" is defined as restoration of the drainage works to its original condition in this particular situation, I interpret that to mean restoration to its intended condition, using the grade line found in the report.

For the above reasons, I find the Municipality is liable to the Claimants who provided notice to it for the years 1996, 1997, 1998 and 1999. Although it could be said that the Municipality in 1999 was moving forward with this matter when the request moved from solely maintenance to maintenance and improvement, I find that there was nothing preventing the Municipality in 1999 to complete some of the maintenance that had already been requested and considered, while leaving the matter of improvement and further works downstream to the Section 78 Report.

LIABILITY OF THE MUNICIPALITY UNDER SECTION 79 SUBSEQUENT TO 2000

The Short Drain cleanout as ordered by Referee O'Brien, in its modified form, was completed in November of 2000. There now occurred the process of completion of the report ordered by Referee O'Brien together with the additional direction of the Municipality contained in its letter of September 19th, 2000 to include the section known as the 2A Municipal Drain.

With the amalgamation of Kawartha Lakes occurring in 2001, work commenced at a relatively quick pace during the first year. But, according to the evidence of Thomas Pridham, not much occurred during the year 2002. The reason given was that the Municipality was waiting for the Decision on the Washington Drain, which was being appealed to the Referee.

Only one invoice appears to have been submitted for work during the entire year and this work was submitted in an invoice attached to a letter dated June 30th, 2002. The next invoice appears to have been that of Schroder and Associates on the hydrologic modelling in March of 2003.

In the interim, a new maintenance request had been received by the Township. This was dated March 17th, 2000 from Bruce and Sonya McKeown requesting a cleanout to provide outlet for their tiles on Lot 13, Concession 13.67 This request was received and, according to the McKeowns, was acknowledged by Superintendent Kuntze, however, the McKeowns were advised that their work would be completed in conjunction with the Short Drain work.

McKeowns stated in their letter to the City of Kawartha Lakes Drainage Board dated July 17th, 2002;

In the following months work on the Short Drain was planned, we were informed our cleanout would be in conjunction with this work. However, the Short Drain met roadblocks and the section downstream from the Kievall outlet has now been waiting two years for a full engineers report.

The McKeowns went on:

It has now been three years since our initial request, and it appears there will be a long wait before the cleanout could be done together with the Short Drain. We hereby request this work be done as soon as it is possible. We have approximately 25 cleared acres that are useless without tile and plan to tile it this year.

This request received a quick response from Superintendent Kuntze according to documentation, a cleanout was completed in 2002 and confirmed by Mr. McKeown. This appears to be the most recent cleanout in relation to this Hearing before the Referee.

In cross-examination, Bruce McKeown indicated that it was his belief that a cleanout was required within just seven years of the previous maintenance, because the cleanout for the Kievall Creek Drain would not be effective until there was a cleanout of the 2A section. Mr. McKeown pointed out that his property is at the bottom end of the Kievall Creek, so that without the Short Drain and the 2A Drain being maintained, the Kievall Creek Drain would never work properly.

The next request for maintenance on the Kievall Creek Drain occurred through correspondence from Ron (Dale) Hamilton dated June 18th, 2003 to the City of Kawartha Lakes requesting maintenance upstream from the maintenance work done in 2002 to White Rock Road. The request for maintenance was referred to the Drainage Superintendent Paul Young on July 22nd, 2003.

Dale Hamilton, in providing testimony, does not indicate that any further work was done on the Kievall Creek Drain, other than what was previously described. The only other notice received by the City from Ron/Dale Hamilton was his letter of October 18th, 2006 in which he threatened legal action should the City pursue the abandonment of the Short and 2A Drains. He raised the issue of the Kawartha Lakes' liability for damages.

Apart from a letter and a deputation to Council in 2006, the McKeowns did not specifically request any further need for clean out other than the expanded cleanout beyond the limits of the Kievall Creek Drain through the Short and 2A Drains. In essence, their only follow-up notice was their letter to Mayor Barbara Kelly through their Solicitor, Andrew Osyany dated October 31st, 2006. In that letter, Mr. Osyany raised the issue that the Council needed to proceed to the formal meeting to consider and possibly adopt the Pridham Report of March 2006, pursuant to Section 41 of the Act. The Council had not called a consideration meeting. The motion from the Drainage Board requesting such meeting was dated April 19th, 2006. What followed was the Question and Answer document which has been referred to in prior Reasons for Decision in this matter.

At the same time, the Municipality was in receipt of its first abandonment petition and had advised the Solicitor for the Section 79 claimants that this petition was being evaluated. The actual by-law to provide for the drainage work was not passed until May 22nd, 2007.

During this period, while the City had its statutory obligations under section 41 of the Act, it encountered contravening obligations under section 84. Added to this was its novel approach used to perhaps defuse the controversy surrounding the drain and provide information to the public. It was moving forward on the Report on the Short and 2A Municipal Drains Repair and Improvement 2006. In fact, as described in the minutes of the City of Kawartha Lakes Drainage Board of the meeting of April 19th, 2006, the formal meeting to consider the report was to occur as and when the questions raised and the information provided by the public was able to be addressed. This eventually led to the Question and Answer document.

A little over a year later, the by-law to provide the drainage works was passed, and the various appeals, previously mentioned, occurred. The Referee notes that the request of Mr. Osyany was to have the Short Drain repaired, but included no mention of the 2A or the Kievall Creek Drain.

The Referee finds that in such a difficult situation the delay in moving immediately to the by-law was justified in light of the public concerns. In this particular situation, I am justified in extending the time for such proceeding pursuant to Section 113 of the Act.

During the period from the amalgamation of the Victoria County Municipalities into the City of Kawartha Lakes, the post of Drainage Superintendent has only been sporadically attended to. In testimony, John Kuntze confirmed that he was briefly the superintendent for the City when it was first established until a staff person could be put in charge. He further advised that in 2010 he was retained by the City to assist them in training a new person as superintendent. The period that he was Drainage Superintendent was from 2000 to 2003 at which time City staff took over.

Although Mr. Kuntze was not the superintendent the entire time, his comments as to what maintenance was done between the years 2000 and the completion of the report in March of 2006 by Mr. Pridham was instructive. The question put to him was:

Q. Were you aware of any maintenance -well ... you had Parker and McFeeters and everybody else still complained about maintenance on the Short Drain that whole time, didn't you? Was there no one who said, "We need to do something -small jobs on a short term basis?"

A. No, not that I am aware of. I mean it had been in the hands of an engineer, and certainly not on ... the Short Drain....

I am not aware of any beaver dams and any problems that came forward after 2000, and I was only Drainage Superintendent from about 2000, I think to 2003 for the City of Kawartha Lakes and then the city staffs took over and have done that since then...

Mr. Kuntze also confirmed that the Municipality did not establish a maintenance program where drains are maintained on a regular basis without any request or input from landowners.

At trial, Exhibit 28 was entered into evidence by Kenneth Becking, Director of Engineering and Public Works for the City, as part of the job posting in June of 2009 for a Senior Engineer Technician and included the functions of a Drainage Superintendent. Part of the Exhibit was a memorandum prepared by Dave Hodgson, Councillor, according to the evidence. After identifying the classes of drains Councillor Hodgson wrote:

Maintenance of municipal drains is the direct responsibility of the Municipality.

There is no need to petition for cleanout or maintenance. The process of petition is only for the creation of new drains or the extension of existing drains.

Maintenance without an engineer's report would address most of the drains within C of KL since approximately 88% fall under the class C and F. In this case what work needs to be done would be based on the decision of the Drainage Board and the Drainage Superintendent.

Since amalgamation in 2001, there has been no significant drain maintenance of the 57 Drains in C of KL. Given that there is no issue with the D.F.O. on a majority of them, we are at a loss to find a reason why nothing has been done. It has been suggested that the present Drainage Superintendent is too preoccupied with other responsibilities within the D.P.W. Engineering Department. If that is the case, one has to question given the importance of agriculture to our municipality why in the past 8 years the position of drainage superintendent has been given so little attention and significance.

At the hearing, Mr. Becking admitted during cross-examination that for the 57 drains in 2008, the approximate amount of money spent on drainage work for maintenance was $1,500.00.

When asked about the question of the moving of obstructions on the drain under Section 80 of the Act, Mr. Becking was of the opinion that such action could not occur in light of the direction of Referee O'Brien. In essence the Municipality pleaded that the prior Referee's Order paralyzed drainage work in the Municipality.

A further delay occurred between the Provisional adoption of the Short and 2A Municipal Drain's Repair and Improvement 2006 Report in May 22nd, 2007 until June of 2008. Part of this delay occurred while awaiting completion of the Court of Revision. During the time between this and the submission of the Motion in May of 2008, Counsel for, the Municipality ran into delay due to Counsel having pressing family matters towards the end of 2007. The final delay occurred with a work stoppage at the Municipality in the beginning of 2008 leading to lengthy negotiations.

These two events, while adding further to the delay, did not extend a full year and in the Referee's opinion were not significant enough to bring about liability.

In summary, I find liability for the year 2002 for those parties who had given notice greater than one year previous.

In addition, the lack of a maintenance program during the period from amalgamation to the commencement of the motion, even to the extent to allow spot maintenance, does bring a certain level of liability to the City in that maintenance could have occurred on the 2A Drain below Hub 0 and still not violate the Referee's Order. During various times when it became evident that the proceedings were going to stretch on, access could have been had to the Referee to reduce problems caused by neglect by some minor maintenance if the Referee's opinion had been requested. The Referee, through injunction, only prohibited maintenance on the Short Drain, not the 2A Drain nor the Kievall Creek Drain. The lack of an assessment schedule may have caused the problem for the 2A Drain. This, however, was the responsibility of the Municipality.

As a result, the Referee finds there is a continued liability, although limited as to its total effect, to the value that may be ascribed to maintenance that could have occurred from 2000 forward, less the value of the partial maintenance performed for those parties giving notice prior to 2000 on the Short Drain and for Bruce and Sonya McKewon and Ron Hamilton after 2000 in relation to the Kievall Creek Drain.

Quantifying the value of such losses will be extremely difficult and probably trivial in light of remedy involved in the improvement under the Section 78 Report.

As this matter proceeds to a possible further trial, which I am directing be for the assessment of damages, all parties should be cognisant of the difficulty which will occur in assessing damages.

Referee Clunis, in his Reasons for Judgment dated the 12th day of February, 1970 in the matter of Gerard Eek vs. The Corporation of the Township of King stated:

I think the law is well established that once a landowner has proved that he has sustained damage by reason of the failure of a Municipality to keep a drain in proper repair, that there then arises an onus on the part of the Municipality, if it contends that the damage suffered was not wholly attributable to the lack of repair, to prove what portion was brought about by other causes.

A further issue arises in my mind that, although the municipality will face this onus, the complainants may have to address the effect of the partial maintenance work which was completed on damages.

Finally, Andrew Osyany, Counsel for the Claimants brought the claim under the common law. I do not find that the damages occurred pursuant to the common law, as it has been stated many times before by prior Referees, the Drainage Act has removed riparian rights originally based on the common law and replaced them with the statutory scheme known as the Drainage Act.

In a decision of Referee G.F. Henderson between the Corporation of the Village of Thedford and the Corporation of the Township of Bosanquet, a case which dealt with riparian rights and rights acquired through prescription. There was an argument between parties who had no riparian rights, wanting to bring water to an outlet for a 20 year period. Referee Henderson stated:

There is no question about the general proposition that a right to a flow of water may be acquired by prescription, but one must bear in mind the fact that prescriptive right is usually placed upon the theory of implied grant, and my understanding of the Municipal Drainage Act is that its provisions are intended to rebut by implications any such prescription.

This is one of the several statements by Referees indicating the common law does not apply to drains constructed under the Drainage Act and its predecessor legislation.

Finally, according to Referee O'Brien, discussing the definition of "drainage works".

That Section grants very wide powers to a Drainage Engineer and overrides all traditional common law rights. The Drainage Act was originally required to overcome limitations of the Common Law. The inadequacies of the Common Law became more pronounced as modern technology improved farming methods and required sophisticated drainage programs even within residential areas.

COSTS

I have previously ordered the removal of 75% of the costs of preparation of the report and/or meetings and procedures, both engineering and legal, required in the completion of the Question and Answer document. In my Order of December 10th, 2010, I have further required the removal of one half of the costs of modelling from the estimate of the costs of drainage works. In my Reasons for Decision on the matter of abandonment dated March 7th, 2011: I stated:

As a result, the costs of the City's Counsel, its engineers relating to the development of the City's position expressed in the confidential memo to Council, its involvement in the June 2th, 2007 meeting regarding the potential abandonment of the 2A Municipal Drain should not be included in the costs chargeable to the Short and 2A Drain. As previously stated the costs of preparation of a Motion of May 23rd, 2008 are attributable to the drain on a partial indemnity basis.

I also indicated in those Reasons that the time spent by Counsel for the Municipality and Counsel for those in support of the Petition for Abandonment should be excluded from costs assessed to the drain.

As a result of my decision on the liability issue, costs for the Section 79 claimants shall be payable by the Municipality and not attributable to the drain, such costs to be paid on a partial indemnity basis. Mr. Osyany's submission maintained that his participation in the trial of issues brought about by my June 25th, 2008 Order was necessary to ensure that the City of Kawartha Lakes continued to complete its obligations. He suggested at that time that the cost of the McFeeters party be assessed one half against Norris/Campbell parties and one half absorbed by the City.

I find that the liability for costs is that of the City on its own for the reasons already elaborated in this Decision.

After careful review of the evidence, I find that Mr. Courey, in dealing with Section 79 matters on behalf of Lisa Norris, Glenn Campbell and others was not extensively involved in that phase of the trial. As such, rather than attempting to separate the time spent by Mr. Courey on the Section 79 matters, he shall have his costs on those matters on a partial indemnity basis, with such costs to be attributed to the drain. Kawartha Lakes will not have its costs on the Section 79 matters, but costs of the City in these proceedings, subject to exclusions mentioned, shall form part of the costs of the drainage works. Such costs of Counsel for the City shall be on a partial indemnity basis.

At the time of submissions, Counsel for the City of Kawartha Lakes Valerie M'Garry requested that costs of $6,330.00 which were incidental items on the ledger, submitted as Exhibit 25 and 25(a) be removed from the costs of the proceedings. With this request I concur.

During the course of the completion of these Reasons, I received the reports ordered by my Order of December 10th, 2010. Given the complicated nature of the proceedings as they continue, and as a result of a teleconference with Counsel, I have decided that the matter of costs shall be further addressed, more particularly as to their quantum on June 15th, 2011 at 10:00 a.m. at the courthouse at Lindsay.

I am advised by Counsel that this has been perhaps the longest and most complicated trial before a Drainage Referee since that office was created. Given the vast amount of documentation and exhibits, I could not have completed this matter without the able assistance of all Counsel who acted forcefully on behalf of their clients but also aided the Referee in providing, what he hopes will be, the end of a generational conflict within the former Township of Mariposa with a decision which the Referee believes strikes an appropriate balance between the competing interests within the drainage community.

DATED at Strathroy, Ontario this 9th day of May, 2011.

ROBERT G. WATERS

ONTARIO DRAINAGE REFEREE