ODR 2016

The plaintiff brought an action for damages and declaratory relief against downstream neighbours for failing to maintain their portions of an Award Drain, causing flooding on his farmland.

The defendants argued the Drainage Referee lacked jurisdiction over Award Drains and that they had performed adequate maintenance.

The Referee held that he had jurisdiction to order maintenance and clarify the drain's profile.

The Referee ordered ongoing maintenance supervised by an engineer and awarded the plaintiff nominal damages of $1 against one defendant and $2,200 against the others for crop losses caused by delayed maintenance.

The appellant appealed a 2012 municipal by-law that relocated a municipal drain, alleging the relocated drain caused flooding on his property.

The municipality brought a motion to dismiss the appeal on the basis that the limitation periods under the Drainage Act had expired.

The Acting Drainage Referee granted the motion and dismissed the appeal, finding that the time to appeal the 2012 engineer's report or apply to quash the by-law had long passed, and that any current drainage issues must be addressed through new maintenance or improvement requests under the Act.

The Upper Thames River Conservation Authority brought a motion for leave to intervene as an added party in an application under the Drainage Act.

The applicants opposed the motion, arguing that the Conservation Authorities Act and the Drainage Act create separate jurisdictions.

The Acting Referee granted the motion, finding that the Authority had an interest in the subject matter, could be adversely affected by the judgment, and shared common questions of law or fact with the proceeding.

The addition of the Authority would not cause undue delay or prejudice.