ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

ALLAN v. CONNELL et al

2016 ONDR 3

DATE OF DECISION:

2016-12-15

2016-03

STATUTE:

Drainage Act

HEARING:

Court File No. 709-12

BETWEEN:

KEN ALLAN Plaintiff

-and-

JIM CONNELL, GREGG SMITH, LIANNE WAITE Defendants

O R D E R

Michael Wicklum Barrister & Solicitor Solicitor for the Ken Allan Plaintiff

Scott Hughes Bond and Hughes Solicitor for Jim Connell Defendant

J. Alden Christian Diamond & Diamond ™ Solicitor for Gregg Smith and Lianne Waite Defendants

Todd Perry P.Eng McIntosh Perry Consulting Engineers Ltd.

1. Todd Perry of McIntosh Perry Consulting Engineers Ltd. (hereinafter referred to as McIntosh Perry), shall superintend the maintenance of the Robert Allan Requisition Drain, now known as the Robert Allan Award Drain in relation to portions of the lands owned by the parties to this claim.

2. The said Todd Perry, using his best efforts, shall establish a profile in accordance with the original award of J.H. Moore dated the 15^th day of August, 1902.

3. As Drainage Superintendent in this matter using powers similar to those of a Drainage Superintendent under a Municipal Drain, McIntosh Perry shall further inspect the lands of Ken Allan, Jim Connell, Gregg Smith and Lianne Waite and shall direct maintenance to be undertaken either by the owners or, should there be no agreement between the owners as to a contractor to perform the maintenance, upon Order of the Referee.

4. Such direction or Order shall be with the intention to bring the drain located on the properties of Gregg Smith and Lianne Waite being Part Lot 8, Concession 10 geographic Township of North Burgess, Township of Tay Valley; the lands of Jim Connell being Part of Lot 8, Concession 10 in the geographic Township of North Burgess, Township of Tay Valley and those lands of Kenneth Allan on Lot 9, Concession 10 also in the geographic Township of North Burgess, Township of Tay Valley, to an acceptable level of performance in accordance with the spirit of the original award drain.

5. Each of the owners shall, after the initial maintenance and repair as described above is completed, maintain the portion of the ditch located on their lot or parcel of land.

6. Each of the owners will at all times maintain the drain in accordance with good farming practices, which includes keeping cattle out of the ditch and periodic removal of small debris to be completed by each of the respective owners at their own cost on their own property.

7. On a biennial basis, the Drainage Superintendent for the Township of Tay Valley shall be asked to complete a visual survey of the drainage works extending from the easterly limit of the Smith property to the westerly limit or upper limit of the Allan property.

8. Any owner may request a visit and an opinion from the Township Drainage Superintendent at any time for the purposes of addressing a specific concern. The Drainage Superintendent shall at that time provide the owners with a brief written summary of his findings and recommendations, if any. Where the visit has occurred as a result of one property owner’s request, the cost of such visit at the rate that the Drainage Superintendent would normally charge to the Township shall be paid by that owner to the Township. Where the review is part of a biennial inspection, the portion payable by each of the owners shall be based on the number of feet of drain located on their property as a prorated share of the total length of the drain which is the subject of this action being 3,100 feet approximately.

9. In the event maintenance work is required and the owners are unable to agree on a contractor to perform the work and engage the same for the purposes of reinstating the drain to the conditions established at the onset of the initial maintenance; the Drainage Superintendent acting on behalf of the owners shall obtain opinions from one or more contractors acting in the best interests of the group of the cost to complete such maintenance.

10. The cost of maintenance work will be split based on the linear number of feet of drain from the top of the Allan property line to the farthest downstream point of maintenance.

11. Upon receipt of an itemized invoice to be prorated based on measurement of linear feet of the drain from the bottom of the maintained area to the top of the property benefitting, the owners shall make payment to the contractor at the direction by the Drainage Superintendent within seven (7) calendar days. The administrative costs of the Drainage Superintendent shall be borne by the owners in proportion to the amount of maintenance occurring on their property using the rate of compensation payable had McIntosh Perry been appointed by the Township of Tay Valley to perform Drainage Superintendent duties.

12. To the extent that the negligence of one owner leads to the requirement for maintenance in the opinion of the Drainage Superintendent, such maintenance costs and works shall be borne entirely by the owner causing the need for repair or maintenance.

13. The superintending undertaken in sections 1 through 4 of this Order shall be the responsibility of Todd Perry. Thereafter the firm of McIntosh Perry may carry out the balance of this Order, or any other firm, or individual appointed to the position of Drainage Superintendent from time to time by the Corporation of the Township of Tay Valley.

14. The powers of such drainage superintendent shall be limited to those provided in this Order.

Dated at Strathroy, Ontario, this 15th day of December, 2016.

REASONS FOR DECISION

This action was initiated by an Application brought by Ken Allan as Applicant, Court file number 709/12, Notice of which Application was dated September 28^th, 2012.

In the interim a Notice of Application for a Procedural Order dictating the nature, timeline and process of the Application was made to the Referee.

Among the grounds in the Application were, among other items:

(i) The Township has consistently refused to accept the fact that the Drain in question is in fact an Award Drain for purposes of Section 3(18) of the Drainage Act.

(ii) The Township has lost the original Award Profile documents they are obligated to safeguard under the law.

(iii) Using his jurisdiction, the Referee has the authority to order a repair of the Drain if the landowner violates Section 3(18) of the Drainage Act and the Referee has the authority to substitute the original profile of the drain with a current profile of the drain by way of engineer’s report dated January 11^th, 2000.

The parties to the Application were Jim Connell, Greg Smith, Lionne Waite, Township of Tay Valley and Jim Richardson, Director of the Ontario Ministry of Agriculture, Food and Rural Affairs.

The Corporation of the Tay Valley Township brought a cross-motion and responded to the Application on February 6^th, 2014, after the Referee had convened a Procedural Hearing with regard to this matter.

The Municipality, in its response, stated:

1. Award Drains were authorized pursuant to the Ditches and Watercourses Act which was repealed in 1963. No new Award Drains can be established.

2. The responsibility of maintaining an Award Drain remains the responsibility of the property owners adjacent to the Award.

3. A Municipality is not responsible for maintaining Award Drains.

4. There is no statutory provision to enforce compliance by the Municipality of existing Award Drains.

5. Any claims for damage for non-compliance or enforcement can only be made against adjacent property owners.

In a procedural order dated February 18, 2014 arising from the Motion and Cross Motion, the Township was ordered to provide its undertaking to produce at trial in this matter the Engineer, Todd Perry, to provide expert evidence in relation to a failed petition on the Allan/Connell Municipal Drain, February of 2002, the area requiring drainage, the state of repair of the “Robert Allan Ditch Award Drain” and related matters.

The Referee ordered that the Corporation of the Township of Tay Valley be removed as a party to the action along with Jim Richardson, Director of the Ontario Ministry of Agriculture, Food and Rural Affairs on behalf of Her Majesty the Queen and right of Ontario.

It became evident during the submissions during the Procedural Hearing that as an attempt at a petition had failed and in view of the fact that documentation had now come forward with regard to the Robert Allan Ditch Award Drain, would be a circumvention of the process under the Drainage Act to request that under Section 4(1)(d) the Director institute a petition. The simple reason is that in essence the drainage works were in existence but needed maintenance.

The Referee further ordered that Todd Perry of McIntosh Perry Consulting

Engineers Ltd. be allowed access to the property of the remaining parties to the action with his costs to be in the event of the cause.

While the Referee removed the Corporation of the Township of Tay Valley, hereinafter Tay Valley, from this action, the Referee did not remove the obligation that the Township had in relation to documentation of a failed attempt in 2002 to bring about a drain by petition known as the Allan/Connell Municipal Drain February of 2002; nor did the Referee reduce the obligation of the Township to produce documentation relating to the Robert Allan Award Drain and miscellaneous matters relating to this drain. This obligation is found in O.Reg 232/15 Section 11(2) and its predecessor O.Reg 275/1990.

Although in my Procedural Order of February 18^th, 2014, the Referee allowed the Corporation of the Township of Tay Valley to be removed as a party to the action, this was intended to remove its obligation where in normal circumstances the Municipality had a duty under the Drainage Act to oversee completion of the drain maintenance and fulfil its function as the administrator of the drain. Under the Drainage Act the Municipality still has obligations with regard to prior records which the Referee noted in his Procedural Order and the Regulations under the Act. As a result of these considerations the Referee required Todd Perry to provide expert evidence based on his knowledge of the failed petition of the Allan/Connell Municipal Drain and related matters of the area requiring drainage and his knowledge of the state of the repair of the “Robert Allan Ditch” Award Drain.

In accordance with the Procedural Order of the Referee, a Statement of Claim for Damages was to be served by the Applicant. On the 13^th of March, 2014, a Statement of Claim was issued for general damages in the amount of $185,000.00, Special Damages, Declaratory Relief, Costs and other relief. The Plaintiff further requested damages for non-repair as a result of notices to downstream owners in 2002 and subsequently in 2012. The Plaintiff sought Declaratory Relief that the Defendants be ordered to keep the ditch in a state of repair pursuant to the Award. Finally the Plaintiff relied on the Ditches and Watercourses Act and the Drainage Act.

At Trial there was no dispute as to the expertise of Mr. Perry. Mr. Perry provided his curriculum vitae and all three Counsel to the parties in this action agreed with his expertise. Mr. Perry entered into evidence three separate Exhibits. The first was a letter to the Referee dated July 4^th, 2014 from McIntosh Perry which arose from the Referee’s requirements on the Procedural Order. This letter provided Todd Perry’s observations after meeting with the three parties to the claim. Lianne Waite did not join Gregg Smith in his meeting with Todd Perry.¹

In addition to the letter dated July 4^th, 2014, Mr. Perry completed a Memo to the file, which were in essence site visit notes on the Drain. These were dated May 20^th, 2014 and May 27^th, 2014.²

As a result of work undertaken by Gregg Smith and in response to his contact with Mr. Perry, Todd Perry appeared at the Smith property on November 12^th, 2014. This was in advance of a Discovery of Gregg Smith which was scheduled for the next day. Mr. Perry agreed to attend and provide a written account of his findings.³

Finally, at the request of the Referee and with the approval of Counsel, this Court requested that Mr. Perry provide his thoughts on how maintenance of the drainage system on the Smith/Connell/Alllan lands might be formalized. These were contained in a letter dated April 27th, 2016, a day after Mr. Perry’s initial testimony on April 26^th.⁴

In addition, the Court was able to rely on the work that had been completed by McIntosh Perry Consulting Engineers Ltd. on the Allan/Connell Municipal Drain, contained in a report under Section 40 of the Drainage Act dated February 2002. This report eventually ended work on the Municipal Drain with the withdrawal from the petition by Susan Connell.⁵ The withdrawal was contained in a letter signed by Susan B. Connell and James G. Connell on January 25^th, 2002,⁶ in which the Connells state they had been made aware that there was a previous agreement, the Robert Allan Ditch which affects the area. They indicated their satisfaction that that document provided sufficient information and guidance as to their responsibilities. The work completed on Section 40 report on the Allan/Connell Municipal Drain provided Mr. Perry with an additional amount of expertise.

The intent of the report was to establish “a good and sufficient outlet for surface water currently flowing from the Allan/Connell lands and to improve the channel through which the water flows.”⁷

Under land use, Mr. Perry states in his 2002 report “only a moderate increase in agricultural capacity is expected as a result of the Drain construction.” ⁸ The report also documented the need for maintenance.

Under existing patterns it stated “this drainage course is poorly defined, with heavy infilling and some overgrowth.”⁹ Further the report states “in some areas crops are damaged on a regular basis by standing water.”¹⁰ Subsurface drainage does not appear to be a significant concern in this project. Finally, in describing the area requiring drainage he states “based on our field observations, the area requiring drainage covers approximately 20 ha. and covers the lands from the centre east half of Lot 8 to the centre west half of Lot 9¹¹” shown on an attached plan, which plan was filed as an Exhibit¹². Further submitted by Mr. Perry was a drawing which showed the profile of the lands being served by the Allan/Connell drain in 2002.¹³

This action is based on the report of the Award of Ditch Robt. Allan Requisition, North Burgess Township dated August 15^th, 1902.¹⁴ This written report was given by John H. Moore, the Engineer appointed by the Township of North Burgess, pursuant to the provisions of the Ditches and Watercourses Act 1894. The report describes thirteen (13) parcels, most of which are half concession lots with one portion being the Concession Sideroad between Lots 6 and 7 on the 10^th Concession of the Township of North Burgess.

The written portion of the Award Drain was accompanied by a map which the Township luckily had in its possession through supply by Ken Allan described as the Plan and Profile of the Award Ditch, Robt. Allan Requisition. ¹⁵ On the Plan and Profile before the Court, the three parties to the controversy over the maintenance of the drain were highlighted to show their location. These were: Ken Allan, Jim Connell, Gregg Smith and Lianne Waite. The drain, however, extended considerably upstream and more importantly quite a distance downstream from the parties to this issue.

At the outset of the proceeding, the Referee made available to Counsel the Report of the Select Committee on Farm Drainage from the Ontario Legislature in 1948. Of interest was its review of the various pieces of legislation. Under the Ditches and Watercourses Act, according to the Select Committee, the Act provided in 1948 and presumably in 1902, that

where an individual farmer requires drainage to remove water from his land, he may secure an award by which the water may be carried off his land to a sufficient outlet. The work under this Act is limited to a cost of $2,500.00 and the drain must not extend over seven (7) Township lots.¹⁶

On the award dated the 15^th day of August, 1902, the costs were in the amount of $600.00 for the whole work to be complete together with some administrative costs which kept this drain well within the provisions of the Act.

According to the Report of the Select Committee,

this Act has come to be known as the “One Man Act” because it enables a single farmer to secure relief from flood conditions on his farm.¹⁷

The report goes on to state that

it is only intended for small operations as is evident from the restrictions which are placed on the works constructed under the Act.¹⁸

The originator of the Robt. Allan Ditch was located upstream, one farm lot west from the lands owned by Ken Allan who brought the current action. No evidence was given with regard to maintenance of this drain for the first seventy (70) years after its completion. Evidence was that in approximately 1972 or 1973 (or even later) Ken Allan and Norman Ferrier did maintenance work on their portions of the drain. After that, maintenance did not continue until some sporadic efforts by Mr. Allan to complete work on his landlord’s property without permission, which landlords happened to be Gregg Smith and Lianne Waite.

In the Section 40 Drainage Act Report, the area requiring drainage, defined in the petition, had been subject to discussion for drainage improvements for some time.

Drainage works in the area were completed many years ago as an Award Drain known as the “Robert Allan Ditch” In the past 5 years, Mr. Allan had made some additional improvements on the Smith property.¹⁹

As Background the Report stated:

In August of 1999 Mr, Ken Allan filed a Petition for Drainage under Section 4 of The Drainage Act with the Clerk of BBS Township. Upon review of that Petition, it was confirmed that Mr. Allan did not own sufficient land to satisfy either Section 4(a) or (b) of the Act. Mr. Allan was subsequently notified of the deficiency in the Petition.

In the fall of 1999 Mr. Allan again approached the Municipality about his desire to obtain improved drainage outlet for his land in Lot 9, Concession X. In an effort to solve a drainage problem without going to the expense of a Municipal Drain, the Municipality engaged the services of McIntosh Hill Engineering (now McIntosh Perry Consulting Engineers) to survey and prepare plans to provide improved outlet for Mr. Allan’s property. The engineering work was completed, and plan & profile drawings, dated January 11, 2000 were submitted to the Township. The work anticipated by the plans included deepening an existing ditch to provide adequate outlet to the Allan lands and replacement of one culvert. The work was to take place on the Allan, Connell and Smith properties. Cost estimates were obtained from local contractors, and an approximate budget of $12,000.00 was anticipated. It was believed that the work would proceed by Mutual Agreement between the owners however; the drainage work was never completed.

In the Spring of 2001 Mr. Allan applied to the Township for construction of a Requisition Drain, under Section 3 of The Drainage Act. The request for the Requisition Drain was for the same work defined in January, 2000. The Requisition Drain did not proceed, as the anticipated cost of the project exceeded $7,500.00 as required by Section 3(3) of The Drainage Act.

In June of 2001 a Petition for drainage under Section 4(b) was filed with the Township to provide drainage to the same property that was subject to the previous Petition, engineering work and Requisition Drain request. This new Petition contained two signatures, which had the effect of validating the Petition under Section 4(b) of the Act.²⁰

Todd Perry did an initial report which seemed to indicate that a fairly substantial amount of money would be required; at which time Susan Connell withdrew her name from the petition on January 25^th, 2002. She also became aware at this time that there was the original award requisition drain in existence.²¹

As a result, on February 28, 2002, the Engineer filed a report that the drainage works could not proceed under the Drainage Act as it did not have the requisite number of owners representing 60% of the hectarage in the area. Furthermore, although the original Award Drain crossed the sideroad between Lots 6 and 7 Concession 10 North Burgess, the Township took the position that it was not involved, therefore it did not need to file under Section 4(1)(c), a request by the Road Superintendent that the drainage work was required for a road or part thereof. In fact, throughout this Hearing, no mention has ever been made with regard to the issue of the Township road needing maintenance.

After the withdrawal of Susan Connell from the petition, there was some fallout with regard to allocation of costs of the engineer which ended up at the Agriculture, Food and Rural Affairs Appeal Tribunal where Minutes of Settlement were accepted and the appeal under Section 5 of the Drainage Act was dismissed.

Subsequently, Notice of Appeal to the Drainage Referee was issued out of the Superior Court of Justice at Perth Ontario for Lanark County, Court File number 690/07 on September 17^th, 2007. This appeal has not proceeded and will be discussed later in this decision.

A Memorandum of Appearance was filed on behalf of Susan Connell and Gregg Smith and correspondence was forwarded to the Referee requesting a teleconference pre-trial to discuss procedure and possible settlement. No follow-up occurred with the Referee from either party nor was the Referee initially aware that a Memorandum of Appearance had been filed on behalf of Smith and Connell by Scott Hughes of Bond and Hughes in Perth Ontario.

COURT FILE NUMBER 690/07

It was not until February 18, 2014 while in attendance at the Procedural Motion and Cross-Motion brought by Michael Wicklum on behalf of Ken Allan and Janet Bradley of Borden Ladner Gervais LLP on behalf of the Township of Tay Valley, was the Referee made aware that no steps had been taken to resolve the issue raised by the 2007 action. Although the Referee received a telephone call from Mr. Good suggesting that he would need to set up a teleconference to establish pre-trial procedure, nothing further came of it. At the same time, a letter was forwarded to the Referee by Donald Good stating that it would be useful to hold a teleconference Pre-Trial to discuss procedure and possible settlement. By correspondence dated November 21^st, 2007, Mr. Good clarified with the Referee that the matter was not brought in the Superior Court of Justice rather than in the Court of the Drainage Referee. He indicated that he may have inadvertently caused some confusion by omitting the words “in the Court of the Drainage Referee” in the title of the proceedings.

On February 25^th, 2008, the Referee wrote to Counsel for Ken Allan and that the Referee would approach the Court directly in connection with the matter to see if it could provide contents of its file before this could occur. By correspondence dated May 23^rd, 2008, Mr. Good stated that he had been promised by lawyers for the Respondents that work would be done and that he was arranging for a meeting and would then get back to the Referee. The only other correspondence which came to the attention of the Referee was correspondence from the Registrar of the Court to Mr. Allan indicating that he would need, through his lawyer Donald Good, to contact the Drainage Referee and that Mr. Good should contact the Superior Court Trial Co-ordinator in order to reserve court facilities. Any calls from Mr. Allan to the Referee directed him to work with his lawyer. When the Referee arrived on February 18^th, 2014, a copy of the file was requested and for the first time the Referee examined the Notice of Appeal, noted that there had been an Affidavit of Service filed and that a Memorandum of Appearance had been filed by Scott B. Hughes on behalf of both Gregg Smith and Susan Connell.

Parties to drainage matters in Ontario are generally aware that the Referee has operated until recently with only one part time staff person at his office and is dependent upon the Counsel involved with these matters and the Court to keep the Referee abreast of new appeals being launched. In this particular situation, nothing was received by the Referee beyond the phone call and the letter from Donald Good. After the initial phone call, no follow-up occurred. The Referee was not aware that Scott Hughes, as Counsel for Gregg Smith and Susan Connell had filed a Memorandum of Appearance on their behalf, nor what the terms of the Notice of Appeal were. To a certain extent, the Court could have provided the file to the Referee, as the Referee had attended in Perth Court a number of times previously, however, generally the onus is upon the Appellant and the parties to the action to bring this matter before the Referee for a procedural order in order to establish a path forward after the appeal was issued. Nothing was further heard by the Referee on this matter, nor documentation received until the Referee requested the information from the Court.

As a general suggestion to all Counsel dealing with the Referee, given the lack of familiarity of the various Courts with drainage matters, it is incumbent upon parties bringing an action that not only they contact the Referee regarding a Procedural Order, but also provide the documentation which they have filed with the Court. In some situations in the recent past, some Courts were unwilling to assign a file number to an Appeal under the Drainage Act. However, regardless, it is incumbent upon the person bringing the application to move these matters along, as the Court of the Drainage Referee had no procedural methodology established, especially under the rules in place at the time, Ontario Regulation 275/1990 to bring about a dismissal of the action for lack of procedural requirements and laches.

Scott Hughes, on behalf of Gregg Smith and Susan Connell, submitted to the Court that he had written to Donald Good indicating there was a limitation period issue if the claim filed in 2007 related to the Notice of Non-Repair issued in 2002.

At this trial, Counsel initially had no comments on this issue, however, J. Alden Christian in his Submissions suggested that the Appeal issued on October 2^nd, 2007 be endorsed as abandoned without prejudice to the Notices of Non-Repair filed on the 15^th and 16^th of March, 2012. In other words, the Referee would not be dealing with issues raised by the 2007 action, but only dealing with the issues arising from the Notices provided and the claims arising pursuant to those Notices of 2012. This issue will be addressed later in this decision.

RESPONSE TO NOTICES OF NON-REPAIR MARCH 15^TH AND 16^TH 2012

Eventually a Notice of Non- Repair dated March 15^th, 2012 appears to have been delivered to Thomas Gregg Smith and Lianne Marilee Waite; which Notice described a request for maintenance of

dredging or cleaning out the ditch loosely known as the Robert Allan Drain, so as to prevent flooding occurring upstream on Ken Allan’s land as a result of non-repair of parts of the ditch situated on your land.²²

An additional Notice of Non- Repair was provided to James Gordon Connell by Ken Allan dated March 16^th, 2012.

JIM CONNELL

Mr. Connell, who owned the property adjacent to that of Mr. Allan was not an active farmer but had been the Chief Building Official for the Town of Perth for approximately 26 years. In addition he did part-time work in the Township of North Burgess as a Chief Building Official from 1981 until, I assume, his retirement. Although Mr. Connell had past experience in relation to agricultural matters he had not farmed for a number of years. Mr. Connell and his wife moved to the farm in 1977, buying a house off the original farmstead. Subsequently, in 1989, Mrs. Connell acquired part of the northeast half of Lot 8, Concession 10 and part of the southwest half of Lot 8, Concession 10, North Burgess Township. With Susan Connell’s passing in 2010, through a Transfer by Personal Representative, James Gordon Connell acquired the farmlands on June 21, 2010.²³

Mr. Connell shed some light on his wife’s withdrawal from the petition drain known as the Allan/Connell Drain. This arose as a result at the time of an on-site meeting. They received a visit from David Allan. At that time, David Allan was in his 80’s. It was he who made them aware of the Award Drain. This and the matter of costs led them to believe that maintenance could be effected through the Award Drain provision.

Later, confusion also existed in the minds of Mr. and Mrs. Connell in that the Notice of Non-Repair given to Susan Connell on August 10^th, 2002 was given on the Allan/Connell Drain which, according to Mr. Connell, was the drain which failed to proceed. A similar notice reciting the Allan/Connell Drain was given to Greg Smith also dated August 10^th, 2002.

A letter dated September 3^rd, 2003²⁴ claiming authorization under the Ditches and Watercourses Act was addressed to Susan Connell and Greg Smith regarding the Moodie Award Drain. This letter requested repayment of the costs Ken Allan had incurred in relation to the report on the Allan/Connell Drain while Mr. Allan, in his letter, indicated that Susan Connell and Ken Allan had paid for the survey (i.e. the report) the costs of the survey was to be paid by Greg Smith and Susan Connell, after the deduction of the costs of appearing at the Drainage Tribunal and divided three ways. Such request did not comply with the terms of the Drainage Act with regard to failed petition and the sharing of costs²⁵, nor did it merit enforcement under the Ditches and Watercourses Act as that Act had been repealed. In his Notice of 2003, Mr. Allan indicated that any disagreements were to be handled by the Drainage Referee.

This letter brought about a response by Susan Connell, which was also signed by Jim Connell dated September 8^th, 2003.²⁶ In their response to Mr. Allan, the Connell’s pleaded no knowledge of any Drain called the Moodie Award Drain. They also disputed the costs as a result of the failed petition they had been assessed by the Township and they had paid the Township. They also disputed the costs of the Tribunal, but this matter had been settled between the parties.

What they did however state in their letter was:

we are prepared to have the necessary work done to the Ditch; however, we do not feel that any repair work carried out on our property would provide relief until the Smith property downstream is repaired.

They went on to state that:

it concerns us that the apparent increase in the depth of the ditch represented by the survey by Todd Perry does not represent what is required to be maintained (repaired) in the Robert Allan Award.

Jim and Susan Connell, at that time, posited their opinion that the Smiths did not require additional depth to be carried through to fulfil their maintenance obligation. They stated:

your action, several years ago to construct a deeper ditch across the Smith property, we believe, has caused the situation to become difficult to resolve.²⁷

They then offered a four point suggestion with regard to the remedial measures which could be performed to resolve the issues between the parties. Their suggestions however, did propose an additional cost to Mr. Allan on property which is not his, the Smith property. This letter ended communication between the parties according to Mr. Connell for the ensuing years 2003 – 2005.

Mr. Connell viewed the next Notice of Non-Repair as being the Notice of Appeal filed by Donald Good in 2007²⁸, he indicated he was not a party to that Appeal, as it was directed at his late wife and he did not own the property at that time.

When Mr. Connell received the Notice in 2012, however, he did act on it. Mr. Connell’s evidence was that after he received the Notice in 2012, he contacted a drainage contractor, being Tackaberry Sand & Stone Ltd., hereinafter referred to as Tackaberry. After the visit to the drain, the contractor indicated that he couldn’t do the cleanout until October 2012.

As a result of this work he indicated that the water level in his ditch dropped one foot (+ or -) within a month and since then he has not seen significant flooding. However, Mr. Connell only checks the property a couple of times per year as it is rented out.

Mr. Connell stated Mr. Allan had rented the property from his wife in the 1990’s and that although there was a defined ditch in his property, on the Allan side it was difficult to make out a ditch with defined lines.

Mr. Connell also indicated when his wife bought this property, walking the property with the seller, Mr. Ferrier, he was advised that the farmland in the vicinity of the ditch wasn’t of great quality and it was only growing grass.

In cross-examination, Jim Connell acknowledged that when someone referred to the Allan/Connell Drain they were referring to the same waterway as the Allan Ditch, but Mr. Connell further confirmed that when David Allan showed them the old map/plans and profiles of the drain, he did not show him any written documentation.

When Mr. Connell received the Notice in 2012 with the correct description and given the fact that he owned the property, he felt he should get on with the maintenance. He did not, however, tell his contractor that the Drain was an Award Drain. It was the opinion of Jim Connell that his responsibility to maintain the Drain was to clean it out.

While Mr. Connell indicated he did not have a copy of the Plans and Profiles, although he had seen them in his discussions with David Allan, a copy became available to him through his Solicitor after the most recent action was started. He further indicated that the property he owns is now being rented and is in corn and soya beans, with the first crop of soya beans planted approximately two years previous to this Trial.

As a result of the work undertaken in 2012, Todd Perry states in his report to the Referee of November 2014:

The ditch on the Connell land appears to be excavated to a depth deeper than the Smith land. I am not aware of any particular reason for over-excavation of the Connell land. As such there can be expected to be a certain volume of standing water on the Connell land.²⁹

GREGG SMITH

Gregg Smith gave evidence similar to that of Jim Connell that he was not a farmer and after leaving the area to reside in Alberta for 8 years he had returned to set up a paint store in the Town of Perth. He and his wife Lianne Marilee Waite bought the property described as Part Lot 10, Concession 10, in the Township of North Burgess in 1990 being approximately 80 acres, occupying the property in 1991. A rental agreement was entered into with Ken Allan for rental in 1991. The terms of the Agreement were; (i) cattle were to be pastured where they were currently at that time (ii) the rental would last for 5 years with no change in rent but the tenant would fertilize, seed, clear fences etc.. The rental agreement, however, was not binding on a sale and established rental of $800.00 per year commencing July 1991.³⁰

Friction seemed to arise between the parties with the change of fence location, which in Mr. Smith’s opinion was coming closer and closer to their residential portion of the lands. At that time the Smith children were small and there was a concern with the proximity of the cattle. Mr. Smith also mentioned in testimony that Ken Allan was allowing his cattle into the ditch 4 or 5 times a week where anywhere from 40 to 60 head would traverse or walk through the ditch which was part of the Robert Allan Award.

At the time of the initial purchase of the property, there was a bridge beside or over which the cattle would roam.

In the spring of 1998 on short notice, Mr. Smith was notified that a contractor named Cavanagh would be coming on his property to clean his ditch. At the time of this work there were 4 mounds of dirt placed at the side of the ditch. It became obvious to the Smiths that someone had come on their property with big equipment and began to dig a ditch from their neighbour to the east’s property. Mr. Smith’s evidence was that when he contacted the contractor the next day he was advised by one of the workers that Ken Allan had stated that it was his property and to go ahead with the work.

As a result of the conversations with Mr. Allan’s contractors, Mr. Smith asked that they and Mr. Allan vacate his property. It can be assumed, given their animosity in 1998 that Mr. Smith and Ms. Waite were not approached to sign the petition on the Allan/Connell Drain. In 2002 on receipt of the Notice of Non-Repair, Mr. Smith approached the Drainage Engineer for the Township at the time, Allen Richmond. After an inspection of the property, according to Gregg Smith, Mr. Richmond suggested that Mr. Smith should keep it up, meaning basically maintenance of the drain and removal of fences where it was trapping grass and slowing down the water flow.

Difficulties occurred upon receipt of the Notice of Non-Repair dated the 15^th day of March, 2012, according to Mr. Smith. It was delivered by Ken Allan to his wife in somewhat of a highhanded tone indicating that they (Smith/Waite) were in trouble now. At this time Mr. Smith and his wife took the Notice to Adam O’Connor of the office of McIntosh Perry which was the Drainage Engineer of Tay Valley Township.

On being approached, Adam O’Connor indicated that they (Smith/Waite) were not able to do any work until at least July. They would have to talk to the Ministry of Natural Resources and hold off until the Ministry concurred. Prior to this time, through Terry Peacock, the Engineer/Drainage Superintendent of the Township came into possession of a copy of the written portion of the Robert Allan Award Requisition Drain. Mr. Smith appears to have been confused as to what date this happened, stating in one situation it was 1998 and later describing it as 1996.

In 2012, some work was done on the Smith property described by Mr. Smith as cleaning grass in the drain, similar to what Jim Connell had done on his property. Inquiries were made of the Ministry of Natural Resources through McIntosh Perry and a backhoe operator was retained to do some of this work. This appears to have been the “dig out and cleanout the drainage ditch” through R.W. Mini-Backhoe Service.³¹ During this process, grass was removed from the base of the drain.

As a result of the inspection of the premises ordered by the Referee in 2014, a meeting was scheduled with Todd Perry and portions of his advice were that the drain could use repair and maintenance. These observations were of heavy grass growth in the channel of the drain, drainage being impeded by an old culvert which had heaved with frost and the existence of a rock ledge 6 – 12 inches under the surface of the drain. In discussions between Todd Perry and Gregg Smith in 2014, Mr. Smith indicated his willingness to replace and lower the culvert.

In his July report³² Mr. Perry thought lowering the drain would be viewed as an improvement of the original drain rather than a repair and/or maintenance. As a result of the discussions with Todd Perry, Gregg Smith, who was self-represented at the time, actually contacted the Counsel for Mr. Allan, who suggested that Mr. Smith get someone to walk the ditch with him. As a result of his neighbour examining the drain with him, a supervisor from Tackaberry was contacted and that firm attended at the property. Tackaberry is the same contractor that was used by Jim Connell.

This led to an additional report by Todd Perry at the request of Gregg Smith dated November 12, 2014. This was offered to the Referee as a Supplemental Report to that ordered by the Referee in the Procedural Hearing.³³ This further report covered the work which was undertaken by Mr. Smith after site visit on May 27^th, 2014. The updated report had confirmed that the rock ledge did exist. Later, through work on maintenance the contractor Tackaberry Sand & Stone Ltd. was able to dig out rock, debris and boulders which the Engineer assumed represented the rock ledge. More importantly the culvert that replaced the bridge on the Smith property was also replaced. Although the new culvert was smaller than the one replaced, this culvert was set below the ditch invert in keeping with good practice. It was at least 12 inches lower than the previous culvert, according to Mr. Smith.

At the time of this report, Mr. Perry also confirmed that the standing water was 12 – 8 inches lower on the Connell property than it was in May. Leaving seasonal fluctuations aside there is clear evidence that the Smith’s works was having positive impact on the drainage.

Mr. Smith submitted as evidence an account from Tackaberry which only partially showed the work done. According to Mr. Smith, although the invoice was not definitive, the work done was approximately $4,000.00.³⁴

In cross-examination, Mr. Smith confirmed that at no point after 1993 did he entertain the services of an engineer to determine the state of his drain as it compared to the obligations on the Award. By 1996, or shortly thereafter, Mr. Smith was aware that there was an Award Drain after receiving the written portion only. During the period of 1991 – 1996 there was a lease which Mr. Allan continued for 2 years after on a verbal renewal or an over holding agreement with Smith and Waite.

After receipt of the 2002 Notice Smith did not investigate the profile on the Award relying on what had been said by Allen Richmond and prior to him, Mr. Peacock. In essence on cross-examination, Mr. Smith confirmed that until he was advised in 2012 by Mr. Perry he was not aware that there needed to be a change in the culvert. Mr. Smith also confirmed in cross-examination that he did not consult with the Drainage Award to establish the culvert height when he replaced the bridge on the property with the culvert. This first culvert was not replaced until October of 2014.

Also on cross-examination, Mr. Smith acknowledged that the clean out completed by R.W. Mini Backhoe Services was light and superficial compared to what was done later by Tackaberry.

Mr. Smith was pursued in cross-examination as to why he did not have the Drainage Superintendent come out after his 2012 work. Given hindsight, this is not a valid proposition in that the Municipality did not have an obligation under an Award Drain to inspect maintenance work.

In order to cooperate during the course of the action, when Mr. Smith was unrepresented, he arranged through Mr. Allan’s lawyer a site visit by Ken Allan and Doug McLaren. At that time after 2012, Mr. Allan stated that the work was not sufficient which led to discussions with regard to the culvert that replaced the bridge not being property positioned. It was put in in 2000 for the use at the time of installation by the new renter, Jim Ferrier. Further in 2012, Mr. Smith did not mention to his contractor, Ricky White that this was an Award Drain and that Mr. White might consult with the Award. Finally, after the work was done on Mr. Connell’s land and in response to a visit by Mr. Perry, Mr. Smith acknowledged that Mr. Perry’s view that the current profile of the ditch was not yet at the profile of the original Award.

EVIDENCE OF KENNETH ALLAN

Dr. Ken Allan was a veterinarian who continued practicing until 2009. On the property in question and other lands owned by Mr. Allan he ran a cow/calf operation with approximately 200 animals at the date of the Hearing.

At the time both Connell and Smith purchased their lands, Mr. Allan rented their land until approximately 1998/1999. Mr. Allan complained that flooding became worse on his property in 2003. His view of the reason is that Gregg Smith had a bridge and replaced it with a culvert which was not properly installed. He indicated that in 2013 there was a drop but then the water level came back up again. He maintained that after the 2014 work, nothing had changed in his water levels.

On his own behalf he had done maintenance in 1972 – 1973 using a bulldozer with Norman Ferrier, the predecessor in title to Jim Connell, did maintenance. According to his evidence, Mr. Allan used the bulldozer to cut out a path 60 feet on either side of the drainage course at a depth of 3.5 feet in the middle, but because of flooding from 2002 forward, he was unable to get on his own land to do work in accordance with the Award for maintenance on his own property. This led to the Notices of Non-Repair in 2002.³⁵

This Notice of Non-Repair referred to the Allan Connell/Connell Drain. In questioning in cross-examination, Mr. Allan confirmed that’s what it was named and that he did not name it that. Of course this was a mistake in his referral to the failed petition drain. Later in cross-examination Mr. Allan indicated that:

the Township doesn’t control this. It was me that sent him the Notice of Non-Repair it was not the Township.

In response to further questioning from Mr. Christian:

Did you proceed to the Court of the Referee as we are here today?³⁶

I don’t think my lawyer at that time proceeded to the Court of the Referee; I think he did it through Civil Court. I am not sure about that.³⁷

In response to a review of Exhibit number 9 Tab 5 being a Notice in the Superior Court of Justice Notice of Appeal to Drainage Referee Mr. Allan agreed that it was possible that it took 5 years to get from the Notice of Non-Repair to the Appeal which was issued October 2^nd, 2007.

It would appear that Mr. Allan decided to proceed on this method of action as a result of a Decision in the Court of the Drainage Referee, Allan v Tay Valley (Township) 2007 ONDR 1 (CANII). In that case through the Superior Court of Justice Court File number 97-0865 the style of cause was Neris Allan and Kenneth Allan v. the Corporation of the Township of North Burgess. The Allans were successful in this matter being granted injunctive and damage relief upon applying to the Court for further direction. As a result of the limits in the Civil Court’s ability to deal with the requirements of the Drainage Act the matter was referred to the Drainage Referee under Section 120 of the Drainage Act. At that time, Justice McWilliam who gave the Decision in the civil matter endorsed the matter to continue the process under the Drainage Act. It would appear that Mr. Allan’s lawyer Donald Good, having succeeded in this fashion in one instance felt he could do the same in this case. However, according to Mr. Allan, he and Donald Good parted ways with the matter not proceeding until Mr. Wicklum was retained.

It can be assumed, because Mr. Good had success in his previous decision described above that the method of proceeding through the Superior Court of Justice in a claim for damages might be more expeditiously completed through the Superior Court of Justice then through the Court of the Drainage Referee. In the Referee’s correspondence with Mr. Good, he indicated that it was simply confusion that the claim was commenced in the Superior Court of Justice rather than the Court of the Drainage Referee. Whatever the reasons, valuable time was lost in addressing the issue of maintenance.

In evidence from Ken Allan, it became obvious that he felt he could not do maintenance on his own property until maintenance downstream was completed. From the many steps taken by Mr. Allan in trying to bring maintenance to this drain, he also showed a desire for improvements in the drainage course. This is not something within the scope of or the definition of maintenance.

In Todd Perry’s evidence, when looking at the pictures of 2016³⁸ and prior photographs³⁹ he advised the Court that with a profile of 0.1% (that is 1 foot of water per thousand feet) a 6 inch bump will back the water up for 200 feet. He gave his opinion as engineer that if the parties went to the original specifications of the drain there would be no standing water.

In Mr. Perry’s report of July 4^th, 2014⁴⁰ he discusses the rock ledge which was also brought up by Ken Allan in his evidence. The rock was 6 – 12 inches under sediment in the drainage channel but Mr. Perry took the position that if the repair/maintenance goes to the original specifications in the drain there should be no standing water but he tempered this observation by his concerns that the rock ledge may never have been removed in the original construction of the drain.

In his initial report, Mr. Perry agreed with Mr. Allan that at least cleaning the ditch down to the top of the rock ledge which ran 200 feet in length between the culvert and the Connell lands would solve the problem of re-establishing the upstream drainage to the best levels it had ever seen in the past.⁴¹

As confirmation of both Mr. Allan’s position regarding the rock ledge and the inspections of Todd Perry, Mr. Perry stated:

the ditching work on the Smith land appears to have been excavated to a depth at or below previous ditch bottom elevation, most noticeably in the reach between the culvert and the Connell lands. The clear evidence of small rock debris and boulders in the ditch near the pine tree confirm that the ditch profile in this area is lower than what we had assumed the “rock ledge” to be. Based on my visual review, I am satisfied the new ditch profiles lower than the previous ditch profile.

Mr. Perry did not, however, go to the extent of indicating whether the drain was now at the level originally put forward in the Award, confirming since there are no benchmarks in the profile, it is difficult to work with.

In all of Mr. Perry’s reports he acknowledges the concerns that Mr. Smith raised about being sued in Civil Court and that this had an effect of delaying his response while the cloud of the lawsuit could be removed.

Mr. Smith did tell me if Ken dropped the lawsuit for damages and was reasonable as to his expectations for the scope and timing of the work, Mr. Smith could comply with Mr. Allan’s request to reinstate the drain and lower the culvert in question.⁴²

FINDINGS

The Drainage Act R.S.O. 1990, c.D.17 is a statute based on Notice. Section 3(18) does not provide specific clues with regard to Notice, however, the Drainage Act is strongly based on Notice as can be found in Section 79(1) where, on 45 days’ notice the Municipality whose duty it is to repair drainage works can be compellable by the Referee to perform those works and pay damages. Although the drainage works that are before this Court are not ones for which the Municipality is responsible, Section 111(1) provides clear direction to the Referee in the exercise of his powers under Section 106(1) of the Act. Section 111(2) provides that a limitation period of 2 years from the time the cause of complaint arose.

The relevant times for the Drainage Referee in assessing damages therefore are the 15^th and 16^th of March 2010, 2 years before the Notices were provided by Mr. Allan. Clearly, the Defendants/Respondents in this matter could have undertaken a more serious view of their responsibilities at an earlier time than they did. But the dates of the Notice did not lend themselves to immediate work by the Defendants in this matter, as the evidence from the testimony of Mr. Connell for the work done in 2012 and the timing of the work done by the same contractor in 2014 for Gregg Smith and Lianne Waite suggests that administrative delays caused by the nature of these repairs are acceptable.

However, in the case of Mr. Connell this still leads to approximately 2 years where maintenance could have been undertaken and was not and in the case of Gregg Smith and Lianne Waite for approximately 4 years. Yet any damages are mitigated by the fact that Ken Allan has done no work on his property to the knowledge of the Referee after substantial maintenance had been done by Jim Connell in the fall of 2012 and by Gregg Smith and Lianne Waite in the fall of 2014. Based on the evidence of Todd Perry, it would seem that the Award Drain in the case of Jim Connell had been lowered to a level beyond the profile as was understood by Mr. Perry on the Connell lands and as a result of the excavation carried on by Gregg Smith through Tackaberry again work may have exceeded the work which was originally done under the Award Drain as it can be assumed that the initial drain may not have removed the rock ledge which ran for approximately 200 feet on the Smith property.

Once these repairs/improvements were made to the drain, (the improvements not being required) it was incumbent upon Mr. Allan to complete his own work. Going forward the Referee has completed an Order which will deal with the ongoing maintenance of the drain and establishing whether, for purposes of damages in this Action, any further maintenance is required on either of the Connell and Smith/Waite properties in accordance with the such Order when the profile is established to the best of the ability of Mr. Perry or his firm acting in the capacity as Drainage Superintendents. As a first requirement maintenance will be on the lands of Mr. Allan as the Referee sees no impediment why this work cannot be done. If Mr. Allan were proactive it may have been done after the Hearing on this matter in April of 2016.

As a result, no damages will be allowed beyond the relevant times for each party being October 2012 for Connell and October of 2014 for Smith unless McIntosh Perry finds that additional maintenance is required.

DAMAGES

There were two witnesses who provided information with regard to damages.

JOHN W. FERRIER AND KENNETH ALLAN

The Referee has reviewed the evidence of John W. Ferrier. This gentleman is an older farmer who knows his business but does not necessarily keep records. He has an extensive background and is currently a custom operator although semi-retired. He pastures his cattle on various farms and confirms the value of pasture is about $1,000.00 – $2,000.00 per farm. He has experience with “muck soil if it is well conditioned.” His opinion is that Ken Allan has 10 acres of muck soil out of the 20 acres affected by this drain while his opinion was that the farm (“perhaps portions thereof”) was worthless, he provided evidence with regard to the main activity which could occur on this property which is hay.

Based on this scenario, if Mr. Allan had a properly maintained drain in March of 2010 he would not have a profit to be earned until the harvest occurring after March of 2013. This is based on a three year process to make the land productive. According to Mr. Ferrier, the first year would be cultivating with a plough down, removal of any thorns, a process of one year with some seeding work. According to Mr. Ferrier, after putting in the cover crop as well as the seeding there wouldn’t be any harvest of hay in the second year either, as he advised he would let it get established so that on the third year you would have a quality crop. In Mr. Ferrier’s opinion you could get $40.00 a bale for approximately ten 4 x 4 bales per acre on the muck soil. On the second cut there could be 3 bales per acre which he claimed would be of similar value and in exceptional years a third cut. The third cut might yield one – two bales per acre. Although Mr. Ferrier maintained the idea of the sale price of $40.00 per bale, he did not have a very strong opinion with regard to the cost of production. Eventually after calculating the costs of seed per acre, working of the land, etc., Mr. Ferrier felt there might be a cost of production of $25.00 - $30.00 per acre leaving a profit of $10.00 - $15.00 per bale. Mr. Ferrier also mentioned that there was a brush area of approximately 2 acres.

Ken Allan had a different take on the losses. While he claimed 40 acres were out of production because of the wetness until August and that the quality of hay was poor, he stated that he never paid more than $35.00 a bale. He did not provide any opinion as to amount of costs in arriving at the payment he might make for a bale of his own. Mr. Ferrier did provide an idea of costs; based on this information, the Referee is of the opinion that there would be no damages claimable under this head against Jim Connell as it would take 3 years to bring the crop in place and Mr. Connell had done his work in 2012. There might be 2 years’ worth of claims in relation to Gregg Smith, but this should be cut down by the fact that when Mr. Ferrier was getting his third cut of hay Mr. Allan would be at least getting his first cut of hay in August. Mr. Allan gave no estimate for the number of bales which would be received but I would assume that he should be able to get something near the volumes of bales that a first cut would give.

In his evidence, Mr. Ferrier in giving an alternate estimate of damages with regard to pasture, he indicated that he paid $1,000.00 - $2,000.00 per farm for pasture.

Of interest with regard to the pasture comments, Mr. Ferrier who had only recently visited the land could not recall the location of fences in the vicinity of the drain, but in response to a question asking whether the cattle were prevented from getting into the area surrounding the drain or where hay might be growing by prevention through fencing he stated as follows:

I guess they could get in there but I can’t see . . . my cattle don’t want to go into muddy soft boggy holes. They just won’t go in there.⁴³

Mr. Allan provided very sketchy evidence as to the dates the cattle were stuck in the area surrounding the drain. The Referee, however, is of the opinion that one has to mitigate their damages as this area should have been fenced off. It appears that Mr. Allan has had various difficulties over the years with regard to fences. The Referee is not prepared to allow any damages for loss of livestock, within the timeframe described for damages to occur as Mr. Allan acknowledged his fences in certain cases, especially in relation to the abutting Connell lands were in poor shape.

Regarding Mr. Allan’s purchase of abutting lands and the extra expense, the Referee must question the lack of evidence provided of any substance with regard to the costs of removing equipment stuck in the swampy area and the requirement after purchasing the farm adjacent the costs of attending at that farm and going around rather than through the property. The purchase of the farm was a choice of Mr. Allan who would have been aware at the time of the difficulties he faced with the swampy area.

Finally there has been little evidence given with regard to the crossing placed on the property which appears to be the boundary between the east and west half of the lots owned by Ken Allan. There is lack of adequate information with regard to the timing of cattle losses and additional costs arising from the inconvenience caused with regard to the lack of maintenance on these drains.

While the Referee will not be assessing damages regarding the issue of cattle loss and inconvenience, there are valid reasons to suggest that damages regarding the remediation of the muck lands using the formula put forward by John W. Ferrier would lead to a claim for damages for the loss of hay. The damage claim, however, is muddied considerably by the lack of quality evidence given by Ken Allan regarding his losses. As an example relating to the muck lands, it appears the lands at the side which were possibly usable, had been used for pasture after cuts of hay had been harvested. As a result the Referee believes that the only damages relate to the ten acres of muck soil and in the situation of Mr. Connell, as stated previously, if there was a properly maintained drain in March of 2010 Mr. Allan would be able to get a harvest occurring after March of 2013. Since Mr. Connell’s work was done in 2012 and according to the engineer below the grade originally set in the Award, I find in relation to Mr. Connell damages of $1.00.

In relation to Gregg Smith and Lianne Waite, there was a delay and to this end because the major work on Mr. Smith’s drain did not occur until 2014, two years’ worth of hay crop could have been obtained from the muck lands.

Since the profit on a bale using the value placed on it by Ken Allan ($35.00), minus the expenses described by John Ferrier ($25.00 - $35.00), the profit of $10.00 per bale would be obtained. Using the muck lands as the lands which would be lost during this period, damages lessened by the fact that later in the year after obtaining two cuts of hay (which I assume occurred on his remaining fields) Mr. Allan pastures cattle after it starts to freeze in the fall.⁴⁴ It would appear according to evidence that there are a number of months, depending on the amount of snow that cattle can pasture.

Mr. Ferrier estimated as an alternate estimate of damages a loss of pasture which he would be paid $1,000.00 - $2,000.00 per farm for pasture. Given that the total area, which is subject to this claim is 20 acres (I discount Mr. Allan’s estimate of the acres), the value of the pasture using Mr. Ferrier’s quote would be approximately $200.00. Thus in each of the years relating to Smith/Waite I am of the opinion that damages subject to my further comments would be $1,100.00 per year for two years for Gregg Smith and Lianne Waite until November of 2014 when work was completed on their portion of the drain.⁴⁵

In the Referee’s decision regarding limitations, no damages were to be allowed beyond October 2012 for Connell and October 2014 for Smith. Such finding is final unless McIntosh Perry finds additional maintenance is required. It is the opinion of the Referee that if Mr. Allan has not completed work subsequent to November of 2014 on his property to remove the build-up within his portion of the drain, whether or not any additional maintenance is found to be required, disentitles him to further damages.

INITIAL SUBMISSIONS OF COUNSEL ON JURISDICTION

In advance of the Hearing, the Referee asked that Counsel address the issues arising from S.3 (18) of the Drainage Act as this section states as follows:

3(18) Every ditch constructed under the Ditches and Watercourses Act being Chapter 109 of the Revised Statutes of Ontario, 1960, shall be maintained in accordance with the Award of the Engineer providing for such maintenance until such ditch is brought under the provisions of this Act by petition under section 4.

A simple reading of the section, as recognized by Mr. Hughes, Counsel for James Connell reveals an ambiguity in the legislation. The section says that ditches will be maintained in accordance with the Award until brought into the Act by petition. It is only referring to how Award Drains become Municipal Drains through Section 4 and the fact the that an Award Drain shall be maintained. This does not speak to jurisdiction explicitly and as suggested by Mr. Hughes, straightforward reading might led to the opinion that the Award Drains are outside the Act. This section can be interpreted differently than section 2 of the Act that indicates that in relation to Mutual Agreement Drains, S. 2 (4), the subsequent provisions of the Act do not apply to any drainage works constructed as a Mutual Agreement Drain. There is no such wording in section 3. The 2010 amendments to the Drainage Act had the effect of removing requisition drainage works having an estimated cost of which would exceed $7,500.00. With the passage of time, the use of a Requisition Drain which could be brought by one person has ended; as has the involvement of the Municipality in this type of drain.

Mr. Hughes’ question is that in essence are Award Drains under the Act or are they not? If section 4 criteria can be used, they are brought within the main sections of the Act because they become a petition drain. Maintenance, however, becomes a problem. It has been submitted that the Referee can determine claims and disputes arising under the Act:

including, subject to section 120, claims for damages with respect to anything done or purporting to have been done under this Act or predecessor of this Act or consequent thereon.⁴⁶

And s 106(1)(e) grants the Referee original jurisdiction “to entertain applications for Orders, restraining anything proposed or purporting to be done under this Act or predecessor of this Act.

Finally under s. 1061(1)(d), the Referee can:

entertain applications for Orders directing to be done anything required to be done under this Act

Further arguments were submitted by Counsel under s. 120 that states claims can be transferred from Civil Court where a Judge is

of opinion that the relief sought therein is properly the subject of a proceeding under this Act or that it may be more conveniently tried before and disposed of by the Referee.⁴⁷

Finally in his submissions, Mr. Hughes stated:

Award Drains are preserved under s. 3(18). There is a process to convert them in s.4, so it seems unintended that there Referee would not have power over them as well.⁴⁸

It was noted by the Referee and Counsel that in the Application of Mr. Wicklum on behalf of Ken Allan in paragraph 1 (d) requested as relief a:

declaration the drain is a drain for purposes of s 3(18) of the Drainage Act R.S.O. 1990. c D17 or in the alternative an alternate designation of the drain under the Drainage Act.

What has been proposed in the past is that the Referee changes the designation of the drain from an Award Drain to a petition drain but Mr. Wicklum altered this to suggest that the Referee has the power to order a current profile which is readable and be substituted for the original profile document 115 years old.⁴⁹

Further submissions were made by Counsel for Jim Connell was that there is no jurisdiction for the Referee to redesignate this waterway.

Counsel put forward the unopposed position that there should be no improvement in the drain beyond the original profile. In relation to the question of going to the original profile given the existence of the rock ledge and its removal; would that represent an improvement? A majority of Counsel proposed that regardless of whether the drain was built to the original profile, the Referee should be bound by the exact Award specifications.

The Decision of Referee O’Brien in Dabis v. Township of Ramara 2001 ONDR 1 was raised by Mr. Hughes. The Referee suggests that this Decision can be viewed as unique to its situation as the parties had in that decision, pursuant to s. 120(1) of the Drainage Act agreed to have the matter transferred to the Court of the Ontario Drainage Referee

so that in the words of one of the Counsel “it might be conveniently tried before and disposed of by the Referee, particularly in light of the acknowledgement of the need for remedial action.”⁵⁰

The Referee’s position in this matter is that there is adequate provision to order maintenance on an Award Drain. Given the age of many Award Drains coupled with the difficulty in locating full documentation, the Referee reserves the right to clarify an award by ordering a current profile which is readable, workable and to the spirit of the original award.

MAINTENANCE

The definition of maintenance has also come to the attention of the Referee. In the Ditches and Watercourses Act s 1 (h) ‘maintenance’ means the preservation and keeping in repair of a ditch. The definition of maintenance under the Drainage Act in s. 1 is that ‘maintenance’ means the preservation of a drainage works.

In the opinion of the Referee the concept of preservation includes repair.

The order of the Referee on maintenance which is attached to this decision should be interpreted in this fashion.

COSTS

In the Referee’s Procedural Order of the 6^th day of March, 2014, paragraph 4 stated that:

Todd Perry will be allowed access to the property of the remaining parties to this action. His costs to be in the event of the cause.

The Referee finds that the costs of Todd Perry, subsequent to the 6^th day of March, 2014, including the time and visits in arriving at the letter of July 4^th, 2014 to the Referee and November 12^th, 2014 to the Referee, will be split equally between the parties to this Action. In addition, the time spent by Mr. Perry attending before the Referee on April 26^th, and 27^th, 2016 shall also be borne equally between the parties to this Application.

The Referee in having to order these visits and attendances speaks to the animosity which has developed between the parties. While the Municipality did not help by asking that it be removed from this matter, it bears the expense of attending at the Procedural Hearing and in the opinion of the Referee, although no costs were requested, Tay Valley shall bear its own costs.

The claim of Ken Allan against Greg Smith and Susan Connell Court file number 690/07 is dismissed. No costs are to be awarded to either of the parties to that Action.

In the allowance of damages in establishing the relevant period of March of 2010 in this matter, the Referee approves of the decision of Referee O’Brien in Wilson v. Harwich 1999 ONDR 5, 1999 ONDR5. Given the ambiguity in S 111(1) and the definition of “proceedings”, the Referee believes that the timing in this matter for the limitations is not September 28^th, 2012 when the Notice of Application was issued but the dates of the Notice of Non-Repair being March 15^th and 16^th, 2000 respectively, being two years prior to those Notices provided by Mr. Allan to the Defendants. Although Ken Allan has received somewhat limited damages in the situation of Smith/Waite and nominal damages on Jim

Connell the Referee has sympathy for each of the parties to this matter. It would appear in the past there have been very few cases dealing with maintenance of Award Drains. Mr. Allan tried various methods of proceeding with this, all of which he tried to initiate on his own. It would perhaps have been more fruitful if he had been able to have a reasonable conversation with the two remaining parties from whom he was seeking maintenance but abandoned the conversation when he decided to work on a tenant’s property (Smith/Waite) without any permission. The lawsuit in 2007 did not help this matter.

Having said that, the resistance of both Mr. Connell with regard to technical matters such as the naming of drains and Mr. Smith in not involving an engineer at an earlier time leads the Referee to believe that there is fault on all sides of this matter.

As a result, I leave the matter of costs to be discussed between Counsel. Hopefully, they will be able to come up with a proposal regarding costs for the Referee to review that is acceptable to all by January 15^th, 2017. Failing which, I would ask that Counsel for the Plaintiff provide submissions regarding costs in this matter by January 31^st, 2017. Subsequently Counsel

for the Defendants shall submit responses to the Referee within 10 days further by February 10^th, 2017.

Dated at Strathroy, Ontario this 15th day of December, 2016.

ONTARIO DRAINAGE REFEREE

ROBERT G. WATERS

Footnotes

1. 1Exhibit number 12
2. 2Ibid
3. 3Exhibit number 15
4. 4Exhibit number 22
5. 5Exhibit number 20
6. 6Exhibit number 7
7. 7Exhibit number 20 p.3
8. 8Ibid
9. 9Exhibit number 20 p.4
10. 10Ibid
11. 11Ibid
12. 12Exhibit number 13
13. 13Exhibit number 17
14. 14Exhibit number 2
15. 15Exhibit number 1
16. 16Report of the Select Committee on Farm Drainage Session of 1948 p. 5 – 6.
17. 17Report of the Select Committee on Farm Drainage Session of 1948 p. 5 - 6
18. 18Ibid p. 6
19. 19Exhibit number 20 p.2
20. 20Exhibit number 20 p. 2 Background
21. 21Exhibit number 7
22. 22Exhibit number 6
23. 23Exhibit number 9 Tab 2 and 3
24. 24Exhibit number 10
25. 25S.43 Drainage Act RSO 1990 c. D.17
26. 26Exhibit number 10 Tab 32
27. 27Exhibit number 10 Tab 33 p. 2
28. 28Ibid
29. 29Exhibit number 15
30. 30Exhibit number 10 Tab 3
31. 31Exhibit number 10 Tab 44
32. 32Exhibit number 12
33. 33Exhibit number 15
34. 34Exhibit number 10 Tab 45
35. 35Exhibit number 3 Smith, Exhibit number 4 Connell
36. 36Transcript Superior Court of Justice Court of the Drainage Referee Volume II p 278 Line 30
37. 37Transcript Superior Court of Justice Court of the Drainage Referee Volume II p 278 Line 30
38. 38Exhibit number 23 BF 39, 40
39. 39Exhibit number 14
40. 40Exhibit number 12
41. 41Exhibit number 12
42. 42Ibid
43. 43Transcript Volume I p 222 line 16
44. 44Volume II of the Transcript p 263 Line 15 220
45. 45First cut (10 bales per acre x 10 acres) $1,000.00 Second cut (3 bales x $10.00 x 10 acres) $300.00 less deduction for value of pasture $200.00
46. 46Section 106(1)(c)
47. 47Section 120
48. 48Transcript Superior Court of Justice, Court of Drainage Referee Vol I p 7 Line 2
49. 49Ibid p 12 and 13
50. 50Exhibit 8Tab 5 p 4