ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
HENDERSON v. CHATHAM-KENT (MUNICIPALITY) 2016 ONDR 2
DATE OF DECISION: 2016-03-22
STATUTE: Drainage Act
HEARING: Court File No.: 6257/15
BETWEEN:
DONALD E. HENDERSON Appellant
- and –
THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Respondent
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) TUESDAY, THE 8^th^ DAY ) OF MARCH, 2016 )
ORDER
The respondent having brought a motion to dismiss this appeal to Court of the Drainage Referee, upon hearing the submissions of counsel for the appellant and for the Municipality, for the reasons which follow:
THIS COURT ORDERS that:
The motion is allowed and the appeal is dismissed.
As for costs, if the parties are unable to agree, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.
The expenses of the Municipality arising from this proceeding shall be levied upon the lands assessed for the maintenance and repair of the McKnight Drain as set out in the 2012 Dillon Report and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under the Drainage Act. For this purpose the expenses of the Municipality shall include any costs payable by the Municipality and shall be net after deducting any costs payable to the Municipality.
Issued at London, March 22, 2016
Andrew C. Wright Acting Drainage Referee
REASONS
1This decision is from a procedural pre-hearing conference on March 8, 2016 at which time the Municipality of Chatham-Kent brought a motion to dismiss the appeal proceeding in its entirety.
2By separate Order and decision issued March 18, 2016, the procedural elements of the pre-hearing conference were addressed. This decision deals with the Municipality’s motion to dismiss.
3To understand the basis of the Municipality’s motion, it is necessary to understand the claim being asserted by the appellant in his originating Notice of Motion.
4The claim relates to the McKnight Drain. This drain was originally constructed as an award drain under The Ditches and Watercourse Act before the turn of the last century. The McKnight Drain has been improved and repaired over the intervening decades under the authority of predecessors of the Drainage Act (sometimes referred to as the “Act”). The most recent work was undertaken by the Municipality in accordance with the report on the McKnight Drain prepared under the Drainage Act by Dillon Consulting Limited and dated May 29, 2012 and signed by Adam Sullo, P. Eng. (the “Dillon Report”).
5As alleged in the originating Notice of Motion, this report and the subsequent drainage works arose from the request, in 2010, of the owner of land crossed by the McKnight Drain. The request was for the relocation of a portion of the McKnight Drain so that it would run along a property line rather than across the property. The request was accommodated by the Dillon Report which was processed under the Drainage Act and adopted by By-law No. 151-2012. That by-law was provisionally adopted with two readings on July, 16, 2012 and was given third reading and passage on September 10, 2012.
6As set out in the originating Notice of Motion, the relocation work was undertaken and completed by the end of the summer of 2012.
7The Henderson appeal to the Court of the Drainage Referee was launched by Notice of Motion issued July 30, 2015.
8The allegations are:
(a) that the Henderson farm land had been well drained by the McKnight Drain for many years before the 2012 relocation,
(b) that the Henderson land flooded in 2013,
(c) that it was unusually wet, though not flooded in 2014, and
(d) that, in 2015, the field was saturated after a heavy summer rain such as to impair crop yield.
9The allegation is that the Municipality cleaned out the drain in April of 2013 and again in 2014.
10The allegation is that, despite the efforts of the Municipality, the relocated drain is not capable of draining the Henderson property as effectively as it was drained before the 2012 relocation. This allegation is based on an engineering opinion referred to in the originating Notice of Motion.
11The relief sought is for an order setting aside By-law No. 151-2012, for an order directing the relocation of the McKnight Drain to its previous location and for an order formally abandoning the drain in the 2012 location as a drain under the Drainage Act. There is also a claim for damages but counsel for Mr. Henderson advises that his client has waived that claim.
12Mr. Henderson did not appeal the 2012 Dillon Report to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”). He did not appeal the assessments in the 2012 Dillon Report either to the Court of Revision or to the Tribunal. He did not give notice of intention to quash By-law No. 151-2012 as contemplated by Section 58 of the Drainage Act.
13He has made no request for a re-alignment of the McKnight Drain to its pre-2012 location under section 78 of the Drainage Act or otherwise.
14Mr. Henderson has given no notice requesting the maintenance and repair of the McKnight Drain as contemplated by section 79 of the Drainage Act. He wants the drain relocated, not restored to the condition specified in the 2012 Dillon Report.
15The Municipality’s motion to dismiss the Henderson appeal is based on the limitation periods set out in the Drainage Act.
16An appeal of the Dillon Report was available in 2012 under section 47 of the Drainage Act. That appeal would have been to the Tribunal following provisional adoption of By-law No. 151-2012 on July, 16, 2012. There was no appeal and the time for doing so has long since expired.
17The Municipality also relies on section 58 of the Drainage Act which specifies that, within 10 days after final enactment of By-law No. 151-2012 on September 10, 2012, notice must be given of intention to apply to quash the by-law and that the application must be brought to the Referee within three months. No notice was given and the originating Notice of Motion to set aside By-law No. 151-2012 was not issued until July 30, 2015. The Municipality submits that, in those circumstances, By-law No. 151-2012 is, to quote subsection 58(2) of the Drainage Act, “valid and binding according to its terms”.
18The originating Notice of Motion includes a request for an order under section 79 of the Drainage Act compelling the Municipality to exercise the powers under section 78(1.1) of the Drainage Act to:
(a) Change the course of the McKnight Drain,
(b) Make an outlet for the relocated McKnight Drain,
(c) Reconstruct the embankments and walls of the McKnight Drain before the 2012 relocation.
19Section 78(1.1) of the Drainage Act does not pertain to section 79 of the Act. Section 78(1.1) describes what may be undertaken with an engineer’s report under section 78 of the Drainage Act as follows:
Changing the course of the drainage works.
Making a new outlet for the whole or any part of the drainage works.
Constructing a tile drain under the bed of the whole or any part of the drainage works.
Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.
Otherwise improving, extending to an outlet or altering the drainage works.
Covering all or part of the drainage works.
Consolidating two or more drainage works.
20Improvements to a drainage works are defined, in section 1 of the Act, to mean “any modification of or addition to a drainage works intended to increase the effectiveness of the system.”
21Section 79 of the Act deals with compelling municipalities to undertake maintenance and repair, without an engineer’s report, to restore a municipal drain to the specifications found in the most recent report, in this case the 2012 Dillon Report. The McKnight Drain cannot be relocated to its pre-2012 location as a matter of maintenance and repair; it can only be relocated under section 78 of the Act on the basis of an engineer’s report.
22The Municipality submits that the appellant’s pleading does not qualify as either a request under section 78 of the Act for a re-alignment of the McKnight Drain to its pre-2012 location nor does it constitute a request for maintenance and repair as contemplated by section 79 of the Act. In any event, such requests should not be raised for the first time by way of pleadings in a proceeding before the Drainage Referee.
23In his submissions, counsel for the appellant clarified that, despite the pleading, his client was looking for solutions; not necessarily the relocation of the McKnight Drain to its pre-2012 location. If the relocated drain can be made to work, Mr. Henderson will be content; counsel for Mr. Henderson confirmed that his client is not seeking damages but rather solutions to the drainage problems he has been having since 2013.
24Counsel for the appellant submitted that section 106 of the Act gives the Drainage Referee virtually unlimited authority to intervene to solve drainage problems. Because Mr. Henderson has a drainage problem, the submission was that the Drainage Referee should move to a trial to hear evidence of the problem and to make such orders and give such directions as needed to address the issue.
25As for limitation periods, counsel for the appellant asked that the acting Drainage Referee exercise the authority under section 113 of the Act to extend the time for bringing the appeal. As to that submission, the presiding Acting Drainage Referee asked that counsel address the question of the reason for the three year delay, the question of prejudice, given that the drain has been relocated and the costs incurred and assessed, and the question of alternatives to resolving the alleged drainage problem otherwise than setting aside By-law No. 151-2012.
26With respect to reasons for not proceeding before the Drainage Referee until 2015, counsel submitted that his client was unaware that the relocated drain would not work properly until the flooding in 2013 and that he had expected the Municipality to solve the problem. By 2015, when the Municipality had not satisfactorily restored drainage that Mr. Henderson had had prior to the 2012 relocation of the McKnight Drain, the appeal was commenced.
27Concerning prejudice, counsel submitted that whatever costs may have been incurred and assessed would be sorted out in the course of the proceeding before the Court of the Drainage Referee.
28As to alternatives, counsel submitted that, if after hearing all the evidence the Drainage Referee could find solutions that did not involve setting aside By-law No. 151-2012, then Mr. Henderson would be content so long as the result was the restoration of the drainage his land had before 2012. The submission was that proceeding before the Drainage Referee provided flexibility to yield a solution to the alleged drainage problem.
29In reply, counsel for the Municipality submitted that section 106 of the Act did not give unlimited authority to the Drainage Referee and that it must be understood in the context of other sections of the Drainage Act.
30He submitted that the Municipality has been prejudice by the failure to give notice within 10 days as required by section 58 of the Act because the Municipality has incurred the cost of relocating the drain in accordance with the specifications of the Dillon Report and those cost have been assessed in accordance with the assessment schedule in the Dillon Report. Setting aside the by-law authorizing that work will prejudice all involved.
31Counsel for the Municipality acknowledged that the Drainage Referee has the authority under subsection 79(1) of the Act to order maintenance and repair of a drain if the Municipality does not do so after receiving 45 days’ notice. Maintenance and repair involves restoring the drain to the condition specified in the most recent report, that being the 2012 Dillon Report. Counsel points out that there has been no notice given under section 79 of the Act and that Mr. Henderson, at least in his pleading, has made it clear that he wants relocation of the McKnight Drain to its pre-2012 location rather than maintenance and repair of the drain constructed in 2012.
32Relocation can be undertaken, on the basis of a new engineer’s report, under section 78 of the Act but counsel observes that there has been no request from Mr. Henderson under section 78.
33Counsel for the Municipality submits that it is too late for Mr. Henderson to re-open the 2012 process under which the McKnight Drain was relocated as specified in the Dillon Report. If there is a drainage problem as alleged, Mr. Henderson needs to take new steps under the Drainage Act to deal with drainage issues arising since the 2012 relocation of the McKnight Drain.
34The Court of the Drainage Referee has concluded that the motion to dismiss should be allowed and the appeal should be dismissed for the following reasons.
35Mr. Henderson should have drainage for his land. The drainage should be to the standard of current engineering practise for the drainage of farm land.
36If that drainage can be achieved by the McKnight Drain as relocated and in accordance with the specifications in the 2012 Dillon Report, then what is needed is maintenance and repair of the drain.
37Maintenance is defined in the Act to mean “the preservation of a drainage works” and repair is defined to mean “the restoration of a drainage works to its original condition”. Original condition in this context is the condition specified in the 2012 Dillon Report, being the most recent engineer’s report on the McKnight Drain.
38Section 74 of the Act imposes a duty on the Municipality to maintain and repair the McKnight Drain but section 79 of the Act limits the Municipality’s liability for not maintaining and repairing unless 45 days’ notice is given. The scheme of the Act reflects that the Municipality’s cost of maintenance and report is assessed to the benefitting land owners. The Municipality may, of its own initiative, undertake maintenance and repair. But if a drain is working satisfactorily for the purposes of these using the drain, the Municipality is not obliged to put those land owners to the expense of maintenance and repair work. However, once a land owner gives 45 days’ notice, as contemplated by section 79 of the Act, the Municipality’s obligation to do so arises and liability for non-repair follows. As well, the Drainage Referee has the authority, under section 79 of the Act, to order maintenance and repair if it has not been attended to, but only after the 45 days’ notice has been given.
39In this case the Municipality has undertaken maintenance and repair work on the McKnight Drain on its own initiative in 2013 and 2014. No 45 day notice has been given by Mr. Henderson because he does not want the drain as specified in the Dillon Report.
40If the conditions of the McKnight Drain are, as alleged, difficult and costly to maintain as specified in the 2012 Dillon Report, then changes to the drain may be required. Because the Municipality’s costs of maintenance and repair will be assessed to the benefitting land owners, such costs will or should be of interest to all assessed into the McKnight Drain if expensive work is routinely required to keep the drain functioning properly. Changes to the drain will require an engineer’s report commissioned under section 78 of the Act.
41Section 78 of the Act authorizes works described in subsection 78(1.1) of the Act. The drainage works listed in subsection 78(1.1) have been set out above.
42Therefore, changing the location of the drain or creating an alternative outlet, as sought by the appellant, will require a new engineers report under section 78 of the Act. But there may be other engineering solutions to allow the McKnight Drain to continue in its present location. Counsel for Mr. Henderson acknowledged the possibility and also agreed that the solution for his client came down to engineers working out the best alternative. Again, engineering solutions which are different than specified in the 2012 Dillon Report will require a new engineer’s report even if the drain remains in its present location.
43The Court of the Drainage Referee is satisfied that section 58 of the Drainage Act stands as a bar to this proceeding. The time has passed to re-open a drainage project which was authorized and constructed under section 78 of the Drainage Act in 2012.
44The Court agrees with counsel for the Municipality that, if there is a drainage problem as alleged, Mr. Henderson needs to take new steps under the Drainage Act to deal with drainage issues arising since the 2012 relocation of the McKnight Drain. Current drainage problems should now be addressed under the Drainage Act as maintenance and repair without an engineer’s report under section 79 of the Act and/or by way of works with an engineer’s report under section 78 of the Act.
45The Municipality’s motion to dismiss the appeal is therefore allowed and the appeal is dismissed.
46As to costs, if the parties are unable to agree, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.
47The expenses of the Municipality arising from this proceeding shall be levied upon the lands assessed for the maintenance and repair of the McKnight Drain as set out in the 2012 Dillon Report and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under the Act. For this purpose the expenses of the Municipality shall include any costs payable by the Municipality and shall be net after deducting any costs payable to the Municipality.
Issued at London, March 22, 2016
Andrew C. Wright Acting Drainage Referee