Cronk v. Central Elgin (Municipality), 2018 ONDR 3

Ontario Superior Court of Justice

In the Court of the Drainage Referee

Cronk v. Central Elgin (Municipality) 2018 ONDR 3

Date of Decision: 2018-06-06 Statute: Drainage Act Hearing: Court File No. CV-98/15

Between: Kyle Cronk and Isabel Cronk Applicants

• and –

The Corporation of the Municipality of Central Elgin Respondent

Order

Following the 8 day trial of this case held in St. Thomas commencing on Monday, May 14, 2018 and finishing on Thursday May 24, 2018 including hearing the submissions of counsel for the applicants and the respondent, for the reasons which follow:

THIS COURT ORDERS that:

1. The Corporation of the Municipality of Central Elgin (the “Municipality”) shall pay to the applicants, Kyle Cronk and Isabel Cronk, damages in the amount of $125,945.40 for failing to maintain and repair the Oille municipal drain (the “Drain”) as required of the Municipality by section 79 of the Drainage Act.

2. Pre-judgement interest will be paid on the damage amount referred to above calculated from June 6, 2011.

3. The damages referred to above represent damages to the date of this decision and do not preclude claims for damages arising after the date of this decision to lands that are injuriously affected by the continuing failure of the Municipality to maintain and repair the Drain as required by section 79 of the Drainage Act.

4. The Municipality is to initiate under section 78 under the Drainage Act a process to secure a sufficient outlet for the Drain as sufficient outlet is defined in the Drainage Act.

5. Pursuant to subsection 118(2) of the Drainage Act, expenses incurred by the Municipality in connection with the Drain from April 2011 to the date of this decision, including the cost of the mitigation works completed in February 2016 as well as expenses arising from this proceeding, shall be payable out of the general funds of the Municipality and shall not be levied upon the lands assessed for the maintenance and repair of the Drain. For this purpose the expenses of the Municipality shall include any costs payable by the Municipality net after deducting any costs payable to the Municipality.

6. If the parties are unable to agree about costs, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.

Dated at London this June 6, 2018

Andrew C. Wright Acting Drainage Referee

Reasons

1This case involves a municipality’s obligation to maintain and repair a municipal drain as required by section 79 of the Drainage Act and the municipality’s liability pursuant to that section.

2In the course of the trial I heard evidence from a number of witnesses. Mr. John Kuntze, P. Eng., was qualified to give expert engineering evidence in relation to drainage matters under the Drainage Act; he was called by the applicants to whom I will refer as the Cronks. I heard expert appraisal evidence from Mr. Sandy Moir and from Mr. Mark Penhale; Mr. Moir was called by the Cronks and Mr. Penhale by the respondent Municipality of Central Elgin to which I will refer as the Municipality. I had expert evidence from two qualified geotechnical engineers; Mr. Colin Alston, P. Eng., for the Cronks and Mr. Philip Bedell, P. Eng., for the Municipality. Mr. Kyle Cronk, one of the applicants, gave factual evidence. I also received factual evidence from Mr. Geoff Brooks, the Assistant Director of Physical Services of the Municipality and from Mr. Lloyd Perrin, the Director of Physical Services of the Municipality. Also Mr. Ryan DeSutter gave factual evidence. Mr. DeSutter gave evidence under summons by the applicants. He is a former Drainage Superintendent for the Municipality between March 2015 and November 6, 2016 when he left Central Elgin for a senior administration position with a nearby municipality.

3The municipal drain in question is the Oille Drain in the geographic Township of Yarmouth, now in the Municipality of Central Elgin. The Oille Drain serves a watershed of 128 hectares and outlets over the high bluff on the north shore of Lake Erie in the vicinity of the applicants’ property which is part of Lots 27 and 28, Concession 1 and known municipally as 3887 Old Dexter Line. I will sometimes refer to this as the Cronk Land.

4It is the outlet for the Oille Drain that is the problem. The failure of the outlet in March 2011 has resulted in considerable erosion of the bluff from the head of a gully down to the Lake. The erosion is in close proximity to the house on the Cronk Land.

5The bluff along the north shore of Lake Erie rises some 38 metres from the Lake. On top of the bluff the table land to the north is relatively flat. In broad terms the stratigraphy of the table land is about 4 to 6 metres of sand beneath the top soil layer and below the sand is a silty clay overburden down to bedrock. The bottom of the bluff consists of the clay overburden material and is located at the water’s edge.

6The bluff sloop is very steep and is unstable on account of the erosion at the toe of the slope by the Lake. In the normal course, as the Lake carries away the clay material at the toe of the slope, the soils above slip down; the slippages work their way to the top of the bluff which is advancing north at the rate of some 1.6 metres each year. This 1.6 metre per annum regression rate was the subject of disagreement between the experts during the trial but, whether it is either 1.8 or 1.6 metres per year, it is clear that it is an average over a long term and that the top of the bluff is advancing inexorably to the north absent some measure to fix the toe of the slope.

7To illustrate that regression of the bluff to the north, when the Oille Drain was first established in 1911, there was farm land south of the Lake Road. Lake Road ran east-west a considerable distance to the north from the top of the bluff. The applicants’ land are located on the north side of the road allowance for Lake Road. That road allowance is now at or over the top of the bluff. The Lake Road was abandoned sometime during the 1960’s and has been formally closed. In its place Dexter Line was laid out to the north. Dexter Line is the north boundary of the applicants’ land and has provided access to the applicants’ land since the closure of the Lake Road. Recently Dexter Line has been moved to the north again and what was the original Dexter Line has been renamed Old Dexter Line.

8With this context, let me review the pertinent history of the Oille Drain, which I will sometimes refer to as the Drain. As mentioned the Drain was first established in 1911. The outlet at that time was on the north side of Lake Road at a location in lot 27 where the Cronk Land is now located. The outlet was said to be into a ravine. Presumably the ravine conveyed the outlet water to the top of the bluff then down the slope to the Lake.

9The next engineer’s report is in 1963 under which the outlet was carried under Lake Road to an outlet on the south side of the road allowance. The report called for rip-rap to protect the outlet. The outlet pipe and rip rap emerged below the top of the bluff; the outlet water flowed uncontrolled from the rip rap protection area down the slope of the bluff to the Lake.

10There was another engineer’s report in 1979 and one in 1981 but the work under these reports did not deal with the outlet which is what is pertinent to this case.

11In 1982 the Municipality, then the Township of Yarmouth, undertook significant outlet work by connecting to the 1963 outlet a 20 inch (500 millimetre) steel pipe some 48 metres in length from the outlet pipe (below the top of the bank of the bluff) down the slope to the Lake. This work was done under section 74 of the Drainage Act as maintenance and repair; there was no engineer’s report.

12At some point in 2006 there was a problem with a break in the 20 inch steel pipe that was installed in 1982. In 2007 the Municipality commissioned an engineer’s report; it was entitled Oille Drain Outlet, dated June 28, 2007, prepared by Spriet Associates and signed by John R. Spriet, P. Eng. I will sometimes refer to this report at the 2007 Outlet Report. Under the 2007 Outlet Report the anchoring concrete catch basin or junction box was relocated on the Cronk Land to the north and there was attached to it 18 metres of 375 millimetre (14 inch) plastic agricultural tubing. This 14 inch agricultural tubing was carried down the slope and inserted into the remaining portion of 20 inch steel pipe that had been installed in 1982. The smaller plastic agricultural tubing was sleeved into the 1982 steel pipe by some 12 metres so there would be a continuing connection if the steel pipe were to slide further down the slope. This work was done in 2008. The estimated cost of the work from the 2007 Outlet Report was $14,900; there was no evidence of the actual cost.

13This 14 inch agricultural plastic tubing failed in March of 2011. Sections of the tubing which were snapped together had become separated so that the outlet water was no longer getting into the 20 inch steel pipe from 1982. The result was significant erosion, particularly of the sandy soil at the top of the bluff but also a deepening of the gully of clay overburden down to the Lake.

14In April of 2011 Kyle Cronk advised Central Elgin of the problem providing video of the damaging outlet water flows. On April 21, 2011 Mr. Cronk gave formal notice to the Municipality requiring the repair of the Drain outlet.

15The evidence of Geoff Brooks, now the Municipality’s Drainage Superintendent, was that, at the time in April 2011, the broken sections of plastic tubing could not be snapped back together or replaced or otherwise be re-inserted into the 20 inch steel pipe.

16I now turn to the involvement of the applicants, Mr. and Ms. Cronk, with the Cronk Land.

17In 2010 the Cronks were looking for a retirement home. Kyle Cronk has been a police officer since 1985 with the OPP. He was appointed sergeant in 2001. At the time he was teaching at the Aylmer Police College and he and his wife were anticipating retirement. From his having been raised on a farm he was aware of drainage matters generally. Because of his farm experience, he also had the know-how to operate heavy equipment.

18On the Cronk Land there is a farmhouse that was constructed in the 1940’s as well as some out buildings. One of the outbuildings was a barn which has since been lost to a wind storm event.

19The Cronks purchased the Cronk Land in October 2010. Before committing to the purchase Mr. Cronk understood that he would need to take steps to stop the erosion of the bluff as otherwise he appreciated that the continued northward advance of the bluff would eventually put the house at risk. Mr. Cronk’s evidence was that he consulted with Central Elgin and with the Kettle Creek Conservation Authority (KCCA), the Conservation Authority having jurisdiction, about the prospect of installing a revetment at the toe of the slope of the bluff. In this context a revetment involves the placement of large concrete or stone blocks at the water’s edge. The blocks each weight in the order of a ton (2,000 pounds or 57 kilograms). The placement and number of blocks would be specified by engineers specializing in this sort of coastal work and would require Conservation Authority approval.

20At the time of the purchase of the Cronk Land Mr. Cronk had not retained an engineer nor had he made a formal submissions for a revetment. He understood there would be process and that he would need to involve an engineer but he also understood that there were no in-principle obstacles to the idea of a revetment.

21After the purchase Mr. Cronk retained an engineer who was familiar with the KCCA’s Shoreline Management guidance document. The KCCA Shoreline Management Plan at the time was authored by Philpott Associates Coastal Engineers Limited dated December 1989. The engineer retained by Mr. Cronk had participated in the authorship of this Shoreline Management Plan when it was being prepared and was familiar with its requirements. The retainer was to design a revetment for the Cronk Land which would satisfy the requirements of the KCCA.

22The idea the Cronks had was that the house on the Cronk Land would be significantly renovated and improved. They had completed a similar project with a Victorian house in Aylmer. The renovated house would be their retirement home. The investment in the renovation depended upon being able to complete the revetment shoreline protection as otherwise the house would be at risk from the bluff erosion.

23At the time of their purchase of the Cronk Land in October 2010, the Oille Drain outlet was functioning properly. When it failed in March 2011, Mr. Cronk immediately advised the Municipality and requested that it be fixed.

24Mr. Lloyd Perrin, then the Municipality’s Drainage Superintendent, and his assistant, Geoff Brooks attended with Mr. Cronk at the Cronk Land to look at the situation with the Drain outlet. This was in April 2011 and, at the request of Mr. Brooks, Mr. Cronk made his written request for repair on April 21, 2012.

25Following this, there was a meeting at the Cronk Land with respect to the proposed revetment. The meeting was held on May 9, 2011; it was attended by Mr. Cronk and by representatives of the KCCA, the federal Fisheries and Oceans Canada, the Ontario Ministry of Natural Resources and the Municipality of Central Elgin, being Mr. Perrin and Mr. Brooks. The consensus of that meeting was that the reviewing agencies would entertain the revetment application subject to the submission of an Impact Statement prepared by a qualified engineer with expertise in coastal processes.

26Again there were no in-principle obstacles to a revetment. In a confirming letter from the KCCA dated June 29, 2011 there was specific reference to the Philpott work in 1989. The evidence of Mr. Cronk and of Mr. Perrin was that arising from that meeting the consensus was that the Municipality would move forward with fixing the Drain and Mr. Cronk would deal with the revetment. Because the Dain outlet was in the same vicinity it was understood that the Drain outlet would need to be cured and that the cure would have to be accommodated by the revetment and would have to be taken into account in the revetment design. When giving his evidence Mr. Brook’s was asked about this meeting and he was unable to recall any details.

27Mr. Cronk gave instructions to his coastal engineer and expected the Municipality to give instructions to the drainage engineer.

28On May 12, 2011 the Municipality convened an on-site meeting in contemplation of appointing an engineer under section 78 of the Drainage Act to deal with the failed Drain outlet. Geoff Brook was in attendance as was Mr. John Spriet, P. Eng., the author of the 2007 Outlet Report which proposed the snap-together plastic agricultural tubing solution. Mr. Cronk was in attendance as were a number of landowners in the Oille Drain watershed. In his evidence Mr. Brooks reported that there were some vociferous expressions of dissatisfaction by the land owners that the outlet they had paid for two years earlier had failed already. While there was some sympathy for the Cronks by some of those in attendance for the obvious significant erosion of the bluff advancing toward the house, there was land owner resistance paying for a new outlet.

29I digress to note that Mr. Perrin, then the Drainage Superintendent, was not in attendance at this May 12th meeting and that the Municipality never did initiate a section 78 process.

30Mr. Brooks’ evidence was that, as a result of that on-site meeting, the Municipality had concluded that there was no good solution at a reasonable cost. That state of affairs continued until March of 2015.

31During the period between May 2011 and March 2015 the Municipality made some inquiries of drainage contractors and asked a drainage engineering firm, other than Spriet Associates, to look at the problem but nothing came of it. Indeed the other drainage engineering firm was dismissed by the Municipality before they could make a recommendation. There were also some discussions with the County of Elgin about routing the Drain outlet to the Catfish Creek to the north in connection with the County’s re-location of Dexter Line. On the evidence, however, I am satisfied that the Municipality’s efforts to find a solution to the Drain outlet problem were casual and haphazard and were largely a reflection of the assessed owners resentment at the May 12, 2011 on-site meeting.

32During this period the Drain outlet deteriorated as a result of the continued erosion at the top of the bluff from the uncontrolled outflow of water from the Drain. All of the 14 inch plastic agricultural tubing installed in 2008 separated and fell into the gully below. The erosion extended northerly to the location of the anchoring concrete catch basin structure which had been installed in 2008 and it too fell into the gully. The erosion extended across the former road allowance for Lake Road such that a culvert in the former road was eroded into the gully. With the uncontrolled flows from the Drain down the bluff and erosion of the lower clay portions of the gully, the 20 inch steel pipe from 1982 was dislodged and slipped further down the slope.

33Also during this period, Mr. Cronk regularly attended at the Municipality’s offices to inquire of Mr. Brooks about progress with the rectification of the outlet problem with the Drain. Mr. Brooks advised that the Municipality was working on it without providing particulars. Mr. Cronk spoke of attending every two or three weeks, something he was able to work into his OPP duties. Mr. Brooks acknowledged that Mr. Cronk came into the Municipal office to inquire about progress with the Drain outlet but was vague about the frequency. I prefer Mr. Cronk’s evidence about frequency; this was an important issue in Mr. Cronk’s life whereas it was just a part of Mr. Brooks’ daily routines meeting the public about municipal concerns.

34As mentioned, Lloyd Perrin was the Drainage Superintendent in 2011 when the Drain outlet failure occurred. Geoff Brooks was appointed Drainage Superintendent in 2012 and held that positon until 2015 when Ryan DeSutter was appointed Drainage Superintendent. Mr. de Sutter had been employed by Central Elgin starting in July 2011. His work was as an engineering technologist and did not initially relate to municipal drainage. By 2015 Mr. DeSutter had obtained the credentials to be a Drainage Superintendent and was appointed to that position in March 2015. He continued in that position until he left Central Elgin for a senior administration position with a nearby municipality on November 6, 2016.

35Mr. DeSutter explained that when he took over the Drainage Superintendent role from Mr. Brooks, Mr. Brooks provided him with a briefing of then currently active drainage matters. The Drain outlet problem on the Cronk Land was not part of that briefing.

36Mr. DeSutter received on April 17, 2015 a letter from Mr. Cronk demanding a solution to the outlet problem. At that point the expanding erosion at the top of the gully was approaching the house.

37Mr. DeSutter familiarized himself with the Municipality’s drainage files and arranged an on-site meeting on May 25, 2015 with himself, Mr. Perrin, Mr. Brooks and two engineers from Spriet Associates. By then Mr. DeSutter had identified a contractor, Murray Mill’s Excavating and Trucking, that had a proposal for rectifying the situation. On July 22, 2015 an application was made to the KCCA for approval of the work. It was supported by a letter and plan prepared by Spriet Associates. Liaising between Central Elgin, Spriet Associates and the KCCA, the Spriet Associates letter and plan were modified and revised to satisfy the requirements of the KCCA. The final version was issued by Spriet Associates on September 14, 2015. The application was also supported by a September 14, 2015 letter from the geotechnical engineer, Mr. Bedell. The finalized application was peer reviewed by the KCCA’s outside consultant; the consultant’s report was dated October 15, 2015. The KCCA permit was issued on October 16, 2015. Because of weather considerations the work was not completed until February 2016.

38It is to be noted that the formal application to the KCCA in July 2015 was made by Mr. and Ms. Cronk with Ryan DeSutter being shown as their agent. When the KCCA permit was issued in October 2015 it was issued to Mr. and Ms. Cronk.

39The work completed in February 2016 involved the installation of a new concrete catch basin structure to anchor an 18 inch high-density polyethylene (HDPE) pipe from the anchor structure to the bluff and then down the slope to the Lake. The new catch basin was placed well back from the top of the bank. The sections of HDPE pipe were fused or welded to form a continuous run from the anchor catch basin down the slope to the Lake. The HDPE pipe is corrugated on the outside but smooth in the inside; it has some flexibility as recommended by the geotechnical engineer. It is significantly more robust than the 14 inch plastic, snap-together, agricultural tile prescribed by the 2007 Outlet Report. The evidence is that this solution has significantly arrested the erosion at the top of the bluff caused by the Drain outlet. There are continuing issues which are of particular concern to Mr. Cronk and more will be said below in connection the appointment by the Municipality of the engineer under section 78 of the Drainage Act.

40The cost of this outlet remediation was about $87,000 and was paid for out of Central Elgin general funds.

41This work was not completed under an engineer’s report pursuant to section 78 of the Drainage Act so it is not part of the Drain. What is part of the Drain is described in the 2007 Outlet Report which specifies a catch basin and 14 inch plastic, snap-together, agricultural tubing sited in what is now thin air because the land where it was located is no longer there after the erosion caused by the uncontrolled outlet flows from the Drain. In the same vein, the 2007Outlet Report calls for the 14 inch plastic tubing to be sleeved into the 20 inch steel pipe from 1982 which has slide down the slope with the erosion again as a result of the uncontrolled outlet flows from the Drain. A section 78 report is needed to sort this out and more will be said in this connection below.

42I now return to the May 9, 2011 meeting at the Cronk Land with Mr. Cronk, a representative of the KCCA, of the federal Fisheries and Oceans Canada, of the Ontario Ministry of Natural Resources being in attendance with Mr. Perrin and Mr. Brooks from the Municipality of Central Elgin. This meeting was primarily about the Cronks” proposed revetment but also reflected that Central Elgin needed to address the failed Drain outlet. The Cronks were to be responsible for the revetment and the Municipality was to be responsible for the Drain outlet.

43What the Municipality did is summarized above. The Cronks retained a coastal engineer to design the revetment to satisfy the Shoreline Management Policies which had been adopted by the KCCA; those polices had been authored by Philpott Associates Coastal Engineers Limited in December 1989. Those Shoreline Management Policies contemplated shoreline protection revetments to safeguard existing development. To complete the submission the Cronks needed to know how the Municipality was proposing to deal with the failed Drain outlet; the outlet solution would need to be integrated into the revetment and the revetment design needed to take into account flows from the Drain.

44Despite not having a municipal solution to the failed Drain outlet, the Cronks made a submission to the KCCA for their proposed revetment in May of 2014 supported by an engineering report and drawings from Shoreplan Engineering Limited, the Cronks’ coastal engineer.

45The KCCA response to this submission, documented in a letter dated May 22, 2014, gives an early caution of a potential policy change by referring to the fact that the KCCA and other conservation authorities were then in the process of commissioning a consultant to up-date their shoreline management plans.

46The consultant that was retained was W.F. Baird & Associates Coastal Engineers Ltd. Baird’s work got underway in May or June of 2014. Baird’s final report was dated October 13, 2015 and adopted shortly thereafter by the KCCA. A cornerstone of the Baird Shoreline Management Plan, as it related to the High Bluffs on the north shore of Lake Erie, is “Managed Retreat” which, for the purposes of this case, amounted to a prohibition of shore protection measures such as the proposed Cronk revetment.

47While the Baird work was not completed and adopted as policy until October of 2015, Mr. Cronk became aware of the policy sea change when Peter Zuzek, a senior consultant with Baird & Associates, attended the Cronk Land for a site inspection on July 14, 2014. At that time Mr. Zuzek bluntly told Mr. Cronk there would be no revetment in the high bluff areas on Lake Erie; “You will never get your revetment”, he told Mr. Cronk.

48The Cronk revetment application to the KCCA was eventually deemed complete and referred to an outside consultant for review. That review was undertaken by Judy Sullivan, P. Eng. who issued her report on April 15, 2015. While the peer review report evaluates the application by reference to the then in effect Shoreline Management Plan authored by Philpott in 1989, she includes in one of her appendices August 28, 2014 extracts from Baird’s work.

49The Sullivan report recommends that a number of things be changed and/or addressed by the consulting coastal engineer, Shoreplan Coastal Engineering, and the geotechnical engineer, Ya Engineering Limited. Pointedly she makes the comment that “A key issue which has not been addressed by the Ya report is the potential threat to the safety of the existing residence resulting from the rapidly eroding and incising gully to the west of the residence which is associate with the drain.”

50The Cronks could give instructions to their engineers but had no control over the Drain outlet failure about which Central Elgin had taken no remedial measures.

51In August 2015 Mr. Cronk took steps to respond to the Sullivan peer review by making a further application to the KCCA for a modified revetment proposal. He explained that he was hoping that his application would be “grandfathered” to be evaluated under the Philpott shoreline management ground rules as opposed to the Baird regime. But, by the end of 2015, it was beginning to sink in for the Cronks that they were not going to get KCCA approval for the revetment in the circumstances of the changing policy regime for the high bluffs on the north shore of the Lake.

52That said, Mr. Cronk was convinced that, if Central Elgin had done in April or May of 2011 what they eventually did in April of 2015 under Ryan DeSutter’s oversight, the continuing erosion problem from the failed Drain outlet would have been addressed and approved by the KCCA along with the revetment proposal and it all would have been completed by early 2012 under the Philpott shoreline management regime. He is 85% to 90% sure of that result.

53Having reviewed the history I now turn to the issue of liability under the statutory cause of action found in subsection 79(1) of the Drainage Act. Subsection 79 (1) provides as follows:

Upon forty-five days’ notice served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.

54Maintenance and repair of a municipal drain involves restoring it to the condition set out in the most recent report on the drain.

55The submissions of the Municipality are that a reasonable time needs to be read into the obligation to maintain and repair after the 45 days’ notice is given. The submission was that regulatory approvals from other agencies would require more than 45 days.

56In the vast majority of instances, maintenance and repair of an approved municipal drain can be undertaken without further regulatory approvals. In some cases, where fisheries are involved, there may be delays related to fish runs but these things can be anticipated and planned around. If that is not possible, then some form of temporary measures should be taken if possible to mitigate damages until the drain repair can be affected. If none of this can avoid injuring damage to property, then the reasonableness of the course of conduct of the municipality with the duty to repair will be reflected in the decision about whether the damages should be paid by the drain as contemplated by subsection 118(1) of the Drainage Act or out of the general funds of the municipality under subsection 118(2) of the Drainage Act.

57Subsections 118(1) and 118(2) of the Drainage Act which provide as follows:

118(1) Except as provided by subsections (2), (3) and (4), all damages and costs payable by a municipality and arising from proceedings taken under this Act shall be levied upon the lands and roads in any way assessed for the drainage works for construction, improvement, maintenance or repair in such manner as the referee or court may determine, and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under this Act.

118(2) Where such damages and costs become payable owing to any improper action, neglect, default or omission on the part of the council of any municipality or of any of its officers or employees in the construction, improvement, maintenance or repair of the drainage works or in carrying out the provisions of this Act, the referee or court may direct that the whole or any part of such damages and costs shall be borne by the municipality and be payable out of the general funds thereof.

58In the normal course under subsection 118(1), any damages and costs payable by the Municipality would be assessed to the drain in accordance with the assessment schedule in the most recent engineer’s report. Subsection 118(2) contemplates that, in the event the municipal has not proceeded properly, the Referee may make an order that whatever amounts are payable by the municipality shall be paid out of general funds rather than assessed to the drain.

59My conclusion is that the question of reasonable time after the giving of 45 days’ notice under subsection 79(1) of the Drainage Act and the reasonableness of a municipality’s conduct about maintaining and repairing the drain and/or implementing mitigating measures until repairs can be effected go to the question of how the costs and any damages are to be paid, that is, whether the municipal drain pays or the municipality pays out of general funds. The injuriously affected land owner is entitled to damages; whether the municipal drain pays or it is paid out of general funds, if the drain cannot be repaired in 45 days and if the damage arising cannot be mitigated until the repair is completed, the injuriously affected land owner is entitled to damages.

60In this case, it is not an answer to liability under subsection 79(1) of the Drainage Act to say that it is impossible to restore the Drain to the condition specified in the most recent 2007 Outlet Report because the location of the anchoring catch basin and of the 14 inch plastic agricultural tubing no longer exists because of the erosion caused by the outlet failure. In the rare case where maintenance and repair has been rendered impossible, because of non-repair or otherwise, the Municipality must move to amend the requirements for the drain into the realms of what is possible by initiating a process under section 78 of the Drainage Act and, in the meantime, by undertaking mitigating measures to reduce the damage to the injuriously affected property. In this case, the work completed by Central Elgin in February of 2016 represents a mitigation measure only; the Municipality remains liable for the continuing non-repair of the Drain until a new report has been prepared under section 78 which alters what the Drain is.

61The Municipality submitted that it had a due diligence defence to its liability under subsection 79(1) of the Drainage Act. The defense of “due diligence” relates to prosecutions of offences not civil liability for a statutory cause of action. Broadly speaking, and at the risk of over generalizing, in criminal matters or quasi-criminal offences there must be both the offending conduct, actus reus, and the intention to do it, mens rea. Some offences, so called strict liability offences, eliminate the need to establish mens rea; the courts have however, citing the presumption of innocence requirement of the Canadian Charter of Rights and Freedoms, determined that, even with a strict liability offence, the accused has the right to raise a due diligence defence. The due diligence defence imposes the evidentiary burden on the accused to prove that the accused took reasonable care to avoid the offending conduct and was not negligent. In certain cases, the courts have determined that, when the legislation is clear that no due diligence defence can be available, then it is an absolute offence when only the actus reus needs to be proved to make out the offence.

62The Municipality’s due diligence submissions relied upon prosecution cases. No cases were provided that related to a statutory cause of action such as is found in subsection 79(1) of the Drainage Act. I am satisfied that due diligence is not available as a defence to the Municipality’s civil liability under subsection 79(1) of the Drainage Act.

63If I am wrong, the Municipality has not made out anything that remotely qualifies as due diligence. Had Central Elgin done in April or May of 2011 immediately after the Drain outlet failure what they eventually did in April of 2015 under Ryan DeSutter’s supervision, the continuing erosion problem from the failed Drain outlet would have been addressed by early 2012 and further damage mitigated from then on. The four year delay in taking effective remedial measures was not reasonable. Taking no steps to alter, via section 78 process, the Municipality’s continuing non-repair liability is not a reasonable course of action to avoid continuing liability for damages.

64The Municipality submitted that the Cronks’ notice of non-repair given on April 17, 2015 superseded the April 21, 2011 notice of non-repair. The submission was that the Cronks’ course of conduct between April 2011 and April 2015 amounted to an acquiescence or consent to the Municipality doing nothing to remedy the failed Drain outlet. The evidence is that Mr. Cronk repeatedly asked Geoff Brooks about progress about the Drain outlet and was repeatedly assured that the Municipality was working on a solution. That does not imply acquiesce or anything remotely like a waiver of his rights under subsection 79(1) of the Drainage Act.

65I find that the operative date of the Cronks’ notice for the purposes of the 45 days’ notice contemplated by subsection 79(1) of the Drainage Act is April 21, 2011. The Municipality is therefore liable to the Cronks for damages for injurious affection to the Cronk Land arising from the non-repair of the Drain after June 6, 2011. As noted, the non-repair continues as the Municipality has not been able to and cannot restore the Drain to the condition set out in the most recent report on the Drain being the 2007 Outlet Report.

66The Municipality spend much effort attempting to show that no physical injury had occurred to the Cronk Land. This was done by cross-examination of Mr. Cronk who was shown aerial photographs he had not previously seen. It was also done via evidence from Lloyd Perrin who had previously provided no affidavit or disclosure “will say” statement to the Cronks’ counsel.

67The gist of the evidence was that the land to the south of the Cronk Land across the road allowance for the now closed Lake Road is owned by 980322 Ontario Ltd. Mr. Cronk did not recall the number company name but advised that the principal was David Roby and that Mr. Roby through his corporation had given authority and permission to construct the proposed revetment and to access it for construction and maintenance. The Roby land is now either in the Lake or on the way down the unstable, steep bluff slope.

68The next point was that between the Roby land and the Cronk Land there was the road allowance for the now closed Lake Road which was registered in the name of the road authority having jurisdiction. Mr. Perrin said that road authority was the Municipality though the Lake Road had at one time been a County Road. Mr. Cronk’s evidence was that Mr. Perrin had told him that the Cronks could use the road allowance lands as if part of their own. Mr. Perrin did not recall saying that and reaffirmed Municipal ownership. There is no evidence that anyone from the Municipality objected to the Cronks’ use of the road allowance land nor was there any evidence that the Cronks had been refused access to cross the road allowance land for construction and maintenance of the proposed revetment.

69There were differences between property boundary lines from Central Elgin’s data base and the County’s data base. The Municipality’s appraiser, Metrix Realty Group, used the County GIS mapping in their February 28, 2018 report which was provided to the Cronks in advance of the trial. The Central Elgin GIS mapping produced during Mr. Cronk’s cross-examination is different. Both are taken from assessment mapping and transposed onto the aerial photos. County’s mapping has the road allowance land quite a bit further south than Central Elgin’s. The aerial photos show the location of the former travelled portion of the Lake Road which appear to be more in line with the County’s interpretation of the assessment mapping.

70None of these boundaries are based on surveys. The reference plan surveys by which the various parcels are described for Registry Office purposes do not show buildings so, without a survey that shows buildings on the Cronk Land relative to property boundaries, it is not possible to say with precision where the boundaries are located.

71Be all that as it may, even by reference to the Central Elgin mapping, the aerial photo taken in 2015 shows that the erosion in the vicinity of the failed Drain outlet has extended north of the road allowance onto the Cronk Land thereby establishing that there has actually been physical erosion damage done to the Cronk Land as a result of the failed outlet and the failure to take remedial steps until February 2016.

72Regardless of boundary lines, a fundamental cornerstone of the Drainage Act is that the Municipality’s obligations transcend property boundaries. Municipal drains routinely cross property boundaries and are carried to a sufficient outlet and it is for the Municipality to maintain and repair the municipal drain no matter which property the drain may be located on. In this case the problem is that the Municipality took no steps until February 2016 to mitigate the damaging effects of the failed Drain outlet of which the Municipality was aware from March of 2011.

73As for the Cronks seeking to protect the Roby land and the road allowance land from erosion in order to protect the Cronk Land from the advancing regression of the top of the bluff, so long as it is done with the knowledge and approbation of the intervening land owners, the ownership of the intervening land has little bearing on the issue of the Municipality’s obligation under section 79 of the Drainage Act to deal with the failed Drain outlet.

74I turn now to the question of damages. In summary the Municipality says the Cronks have suffered no damages flowing from the failed Drain outlet. The Cronks’ submission is that the Municipality’s indecisiveness about how to fix the failed Drain outlet deprived them of the opportunity to construct their proposed revetment in 2011 or 2012.

75I will refer to the Municipality’s submissions with respect to the various aspects of the Cronks’ damages claim once I have summarized the Cronks’ submissions.

76The Cronks submit that, had Central Elgin done in April or May of 2011 immediately after the Drain outlet failure what they eventually did in April of 2015 under Ryan DeSutter, the continuing erosion problem from the failed Drain outlet would have been addressed and approved by the KCCA along with the revetment proposal and both projects would have been completed by early 2012 under the Philpott shoreline management regime. Because of the Municipality’s four year delay, by 2015 their opportunity for KCCA approval of the proposed revetment was lost under the Baird Shoreline Management system. Whatever value of the Cronk Land would have had with a revetment and no drain related erosion at the top of the bluff is their measure of damages discounted to reflect their chance of successfully processing the revetment application to the KCCA in 2011 – 90% chance of success; 75% chance of success?

77The Cronks led expert evidence from a geotechnical engineer, Colin Alston, P. Eng. who gave evidence that unless the revetment was in place by 2015, it would be too late to keep the residence on the Cronk Land outside of the erosion hazard area for the purposes of the KCCA regulations. This conclusion was based on complicated assumptions and calculations of factors of safety, stable slope and recession rates at which the bluff advances to the north by reason of erosion by the Lake. There was much discussion about the correct numbers and calculations but no witness disagreed with Mr. Alston’s conclusion that the house could not be saved with a revetment after 2015.

78To that let me clarify that the house is not in imminent danger of falling down the bluff into the Lake. It is estimated by Mr. Alston that it will be some 24 years before that will happen. The problem is that once within in the erosion hazard area, no building permits will be available without KCCA approval and, given the Managed Retreat approach to shoreline management, it is unlikely such permission will be available. The result is that only modest cosmetic improvements to the house are possible not the sort of major renovation originally foreseen by the Cronks.

79It is likely possible to obtain KCCA approval to move the house but, if the move is to a more northerly location on the Cronk Land, the foundation requirements of the KCCA at the set-back location would be very demanding. More will be said of this below. It is also likely possible to obtain KCCA approval to move the house to a location beyond KCCA regulatory authority.

80The Cronks led expert appraisal evidence of the hypothetical market value of the Cronk Land in October 2017 as if there was a revetment in place and no Drain related erosion at the top of the bluff; Mr. Sandy Moir, the appraiser gave that value as $550,000. This value assumes the revetment is in place and paid for.

81The Cronks’ appraiser also gave evidence of the value of the Cronk Land in October 2017 “as is” and on the basis of the hypothetical that there had been no Drain related erosion to the top of the bluff (and no revetment). The values were both $235,000; the Drain related erosion at the top of the bluff made no difference. It should be noted that Mr. Moir in his report assumed that without the revetment the house had a useful life of 40 years before it went into the Lake; on that basis he concluded that the Cronk Land had a value of $275,000 with or without the Drain related erosion. He revised that number down to $235,000 after learning that the useful life of the residence had been revised to 24 years.

82Mr. Cronk gave evidence of his estimate of the cost of the revised proposed revetment, which has been revised to reflect the comments in the Sullivan peer review report including reducing the length of the revetment to 100 metres. He gave that cost to be $148,000 which included a $30,000 contingency and $30,000 for the rental of equipment to carry and place the revetment blocks. His intention was to do most of the placement work himself.

83On this basis, taking the $550,000 hypothetical value of the Cronk Land had there been no Drain outlet failure, KCCA approval to install a revetment in 2011 and 2012, less the residual value of the Cronk Land of $235,000 less the $148,000 estimated cost of the revetment, the damages claim is for $165,000 discounted by a percentage reflecting the likelihood of a successful application to the KCCA for a revetment permit in 2011 or 2012 under the Philpott shoreline management ground rules.

84The Cronks also claim for the cost of engineers preparing the application to the KCCA and application fees paid to the KCCA aggregating $36,762.15, again to be discounted by a percentage reflecting the likelihood of a successful application to the KCCA for a revetment permit in 2011 or 2012.

85In response to Mr. Cronk’s evidence that he was 85% to 90% sure of getting the revetment proposal approved by the KCCA under the Philpott shoreline management regime had the Drain outlet problem been rectified by 2011 or 2012, the Municipality took the position that there was no chance of the revetment permit being available to the Cronks in 2011 and 2012. Mr. Bedell was qualified as a geotechnical engineer. In his evidence he was adamant that there was zero chance of success.

86Mr. Bedell discounted the June 29, 2011 letter to the Cronks from the KCCA confirming the consensus reached during the May 9, 2011 on-site meeting attended by Mr. Cronk and by representatives of the KCCA, of the federal Fisheries and Oceans Canada, of the Ontario Ministry of Natural Resources, and of Mr. Perrin and Mr. Brooks. Mr. Beddell represented that portions of that letter, which were extracted from the Philpott report, amounted to a prohibitive obstacle to a revetment permit from the KCCA. He discounted as not comparable and irrelevant the revetment approval issued by the adjoining Catfish Creek Conservation Authority about the same time under the Philpott regime at a location within sight of the Cronk Land to the east.

87Mr. Bedell focused particularly on the question of access to the proposed revetment for construction and subsequent maintenance.

88While I am confident in Mr. Bedell’s geotechnical expertise, I found that his evidence with respect to the prospect of a KCCA revetment approval in 2011 and 2012 strayed beyond expert opinion into the realms of advocacy. An expert with experience about the approval process might give opinion that an application needed a great deal of work to qualify for approval or that certain elements of the application, such as the access issue, would be particularly challenging; it is advocacy to say that there is absolutely no chance of successful.

89I will take into account Mr. Bedell’s comments about the difficulty with access. I will also take into account that he did not disagree with Mr. Alston’s opinion that a revetment would fix the toe of the slope to arrest the inland advance of the bluff. I will also take into account that Mr. Bedell did not disagree with Mr. Alston’s opinion that after 2015 a revetment could no longer protect the house on the Cronk Land.

90I now turn to the value of the Cronk Land as determined by appraisal.

91Both the Municipality’s and the Cronks’ appraisals dealt with the value Cronk Property in October 2017. The appraisers aligned the assumptions going into their work as best they could so the results would be as comparable as possible. Both appraisal relied principally upon a comparison approach to valuation.

92Mr. Moir, the Cronks’ appraiser, gave it as his opinion that, had a revetment been in place and paid for and had there been no Drain outlet related erosion at the top of the bluff, the value of the Cronk Land in October of 2017 would be $550,000. The Municipality’s appraisers, Metrix Realty Group, were instructed not to provide a value on the basis of that hypothetical. Mr. Mark Penhale, when he gave evidence in support of the Municipality’s appraisal report, was asked about the $550,000 and he responded that he could have come to such a value but was concerned about its uncertainty.

93The Municipality’s appraisal value for the Cronk Land on October 27, 2017 was $286,000 for both the “as is” situation and for the hypothetical scenario that there had been no Drain outlet erosion at the top of the bluff.

94Initially the Cronks’ appraisal gave a very similar result: $275,000 for both “as is” and the hypothetical scenario that there had been no Drain outlet erosion at the top of the bluff. One of the assumptions made by Mr. Moir was that the house had a useful life of 40 years before it was expected be lost to the bluff and Lake. Shortly before the trial he was given geotechnical advice that, based on new calculations, the useful life of the house was reduced to 24 years. On that basis Mr. Moir revised his appraisal opinion to $235,000. This amount was the same for both “as is” and for no Drain related erosion at the top of the bluff. Mr. Moir testified that with a 24 year useful life an informed purchaser would be prepared to purchase the Cronk Land as a rental property for income and that anyone seeking to purchase a home in which to live would not be much interested in 24 years whereas they would be in a home that had 40 years.

95Mr. Penhale was asked if the anticipated useful life of the house and the change from 40 to 24 years affected his opinion as to value; he testified that it did not.

96Mr. Moir was asked about the value of the Cronk Land were the house to be relocated to the north on the Cronk Land. Mr. Moir testified that, at a cost to relocate in the order of $500,000, it would drive the value of the Cronk Land into negative territory and would not be supported in the market place.

97Based on this evidence, there is little controversy about the $550,000 value of the Cronk Land in the hypothetical that a revetment was in place and paid for and that there had been no Drain outlet related erosion at the top of the bluff.

98There is also no controversy about the fact that the value of the Cronk Land is the same whether or not the erosion damage had occurred after the failure of the Drain outlet in March of 2011. The difference is between the $286,000 value from the Municipality’s appraiser and $235,000 from the Cronks’. In my view the useful life of the residence is a material factor which was not taken into account by the Metrix Realty Group appraisal and was in the Moir appraisal. For the purposes of calculating damages in this case I am going to use a figure of $245,000 as the value of Cronk Land without a revetment. This is a middle ground value which tends toward Mr. Moir’s opinion which I prefer.

99I now turn to the cost of installing a 100 metre revetment in 2012. This evidence was provided by Mr. Cronk. He described that he had costed the armour stone revetment blocks that were required. He testified that he intended to do the work himself with borrowed and rented equipment. His estimate of the cost to complete the revetment on that basis was $148,000. This included a $30,000 allowance for contingencies and another $30,000 for rented equipment.

100Aside from costs associated with access for installation and maintenance of the revetment, Mr. Cronk was not particularly challenged about these costs. With respect to access Mr. Cronk was asked about alternatives. There was a discussion of the original concept of a path down the bluff from east to west. That had been abandoned in favour of a north south construction path on the advice of his geotechnical engineer, Mr Alston. There was a discussion of self-unloading ships and of the use of barges. Mr. Cronk did not have specifics about the access because the project had not gotten to that point. He agreed that access for installation and subsequent maintenance and repair would have needed to be settled to the satisfaction of the KCCA but he believed that there was enough room in his budget to handle it.

101Mr. Bedell testified that in his opinion, the north-south access road would be very expensive, if it was feasible at all.

102In my opinion the access question would have been addressed if there was going to be a successful revetment application in 2011. The resolution of this issue was not addressed at the time and how it would have been address is still unclear because the revetment application did not get that far before continuing the application became futile. The cost and feasibility of the access issue is an element of the question of how likely it is that the revetment application would have been successful in 2011 if the Drain outlet failure had been rectified. On that basis I will use Mr. Cronk’s $148,000 revetment cost but take into account the assess question when settling upon the likelihood that the application would have been successful in 2011 or 2012.

103The costs thrown away of engineers preparing the application to the KCCA and application fees paid to the KCCA aggregating $36,762.15 is not in dispute, subject to adjustment by a percentage reflecting the likelihood of a successful application to the KCCA for a revetment permit in 2011 or 2012.

104So the damages to be adjusted are the $550,000 value of the Cronk Land if there was a revetment and no erosion resulting from the failed Drain outlet, less the $148,000 cost of a revetment, less the $245,000 current value of Cronk Land without a revetment plus the $36,762.15 in costs thrown away; this amounts to $193,762.15 in economic loss to be adjusted to reflect the likelihood of success of the revetment application.

105So that brings me to the adjustment percentage.

106Before doing so, let me say something about the Cronks’ submission that the Cronks’ are entitled to damages for lost opportunity with an adjustment for likelihood of success. An example of lost opportunity would be if a solicitor missed a limitation period. Depending upon the strength of the case lost and the risks of the litigation process, the client would be entitled to have from the lawyer something falling short of the full amount claimed but more than an economic settlement amount. A breach of contract case where the success of the project was dependent upon a rezoning, the damages otherwise payable could be adjusted to reflect the chance of getting the change of zoning. Wrongfully failing to give a shortlisted candidate an interview for a job would result in damages adjusted to reflect the candidate’s chance of being successful; it is not an answer to say that on a balance of probabilities the candidate would not have gotten the job - the lost opportunity has value.

107In this case the Cronks’ lost opportunity to process the revetment application under the Philpott regime has value. Let me start by saying that I do not believe it is zero; in the same vein I believe that Mr. Cronk’s 85% to 90% is unduly optimistic. Whatever the percent, it is a judgement based on the evidence.

108I am influenced by the cooperation and collaboration which went into the KCCA approval of the Drain outlet mitigation works in 2015 and constructed in February 2016. That approval as based on a two page engineer’s letter with a one page plan. A draft was reviewed and marked up and with engineering and Central Elgin input was issued by the engineer and the KCCA permit was issued. Mr. Bedell also issued a short let in support of this application.

109The Cronk revetment application would have been more complex but, with consensus amongst the review agencies that the revetment could be done, the same sort of cooperation and collaboration would have yielded a KCCA permit in the same sort of time frame. Despite Mr. Bedell’s testimony to the contrary, I believe the June 29, 2012 letter from the KCCA to Mr. Cronk reflected a consensus by the regulatory agencies at the May 9, 2012 on-site meeting that the revetment could be installed under the then existing shoreline management policies.

110Having considered the April 21, 2015 Sullivan peer review of the Cronk revetment application it is clear that there needed to be changes to the Cronk application. That said most of the things identified by Sullivan were capable of being cured by the Cronks, except for the failed Drain outlet which was municipal responsibility. The Sullivan peer review speaks to the access issue and the matter of safety on the unstable bluff slope. Solving the matter of access is critical to the success of the revetment application. The east to west access reviewed by Sullivan was abandoned by the Cronks in favour of a north south option propose by Mr. Alston. Given Mr. Bedell’s concerns about cost and feasibility of that option, other alternatives may have been considered such as the use of shallow draft barges. Because the revetment application did not proceed, these things are unknown but I must take them into account when considering how likely it is that the revetment application would have resulted in a KCCA permit for the revetment before the Philpott regime was replaced by the Baird shoreline management policy.

111In considering these factors and the evidence around these factors I have concluded that there was a 65% chance of successfully obtaining a KCCA permit for the revetment. This 65% also takes into account the possibility that to achieve success Mr. Cronk’s budget estimate for the construction of the revetment might need to be revised upwards. That 65% adjustment when applied to the $193,762.15 in economic loss calculated above yields damages in the amount of $125,945.40.

112I am now going to turn my attention to the Cronks’ claim for damages based on the cost of relocating the house on the Cronk Land to the north away for the top of the bluff. This claim would not be the subject to adjustment because is not damages for a lost opportunity. It is actual damages for the cost of saving the house made necessary by the inability to install a revetment at the toe of the slope of the high bluff.

113Evidence of the cost of the relocation was given by Mr. Cronk. His testimony was that the total cost to move the house will be around $400,000 to $500,000. The actual moving of the house would cost some $34,000 but the largest portion of the cost would be related to helical screw piles required by the KCCA for the foundation of the relocated house. In addition there would be costs associated with access and with utilities relocation, including septic tank connection or replacement. Mr. Cronk’s evidence was supported by an estimate from an engineer, contract estimates and communication between the KCCA and his legal counsel. He was not particularly challenged on cross-examination about these cost estimates and the Municipality offered no contrary evidence. I find that the cost of relocating the house to a more northerly location on the Cronk Land is $500,000.

114I must now determine if the house relocation costs are a proper head of damages.

115My concern is that there is much overlap and duplication in the assessment of damages for the lost opportunity to secure a revetment permit from the KCCA and the claim for relocating the house.

116The lost opportunity claim is based on the economic loss to the Cronks adjusted to reflect their chance of success in securing the revetment permit from the KCCA. The economic loss is calculated using the value that, hypothetically, would have been minus the value of what exists after deducting the estimated cost of getting to the hypothetical scenario. The value of what exists is based on a house with a useful life of 24 years because it is not moved. Relocating the house changes the calculation of economic loss. If the Municipality is to pay for the cost of relocation, there should be a set-off credit in the economic loss calculation for the increased value of the Cronk Land after relocation. No appraisal opinion was provide for the value of the Cronk Land on the basis of a hypothetical house relocation.

117Another problem I have with the house relocation head of damages is that it assumes there is no revetment and that the house needs to be moved back from the bluff to keep it safe from the natural regression of the bluff to the north. That regression to the north is a naturally occurring phenomenon that exists and will continue to occur regardless of the failure of the Drain outlet. The failure of the Drain outlet, and more particularly the Municipality’s failure to take mitigation measures for four or five years, resulted in the Cronks losing the chance for the KCCA revetment permit; embedded in that lost opportunity is saving the house without relocation. The lost opportunity is attributable to the failure of the Drain outlet. Once the Cronks are compensated for that lost opportunity, any house relocation is on account of the continuing natural regression of the bluff, not the failed Drain outlet.

118I am also troubled that the $500,000 amount for relocation substantially exceeds the value of the Cronk Land. Mr. Moir, the Cronks’ appraiser, was asked how the cost of relocating the house would affect the value. His response was that relocation costs can be taken into account but, once the relocation costs exceed what the land is worth, the value of the land remains as if vacant, the appraisal assumption being that relocation is not economically feasible.

119I am satisfied that relocation of the house on the Cronk Land is not an economically reasonable undertaking. The Cronks’ will have damages for their economic loss in the value of the Cronk Land arising from the lost opportunity to securing a revetment permit from the KCCA. But to add to that the cost of relocating the house on the Cronk Land would give the Cronks an additional windfall which they may or may not ever spend on relocation costs.

120The head of damages for relocating the house is therefore denied.

121I now wish to address the need for an engineer to examine this Drain outlet pursuant to section 78 of the Drainage Act. There is not much controversy about the need for a section 78 report.

122The 2016 mitigation measure for the Drain outlet is not part of the Drain because it was not installed under the provisions of the Drainage Act. The Municipality has no statutory obligation to maintain and repair it. As importantly, because of the failure of the 2007 Drain outlet and the erosion caused thereby at the top of the bluff, it is impossible to maintain and repair the outlet which remains formally part of the Drain under the 2007 Outlet Report. The Municipality continues to be liable under section 79 of the Drainage Act for all future injury to property. The only way to change that impossible-to-satisfy statutory obligation is to change the obligation by way of amendment under section 78 of the Drainage Act. Why the Municipality has not initiated a section 78 process long since is puzzling. My sense is that there is municipal unease about assessed owner unrest over cost – such as was exhibited at the May 12, 2011 on-site meeting with the engineer and assessed owners about the failed outlet. That is not an acceptable reason for neglecting the Municipality’s obligations under section 79 of the Drainage Act.

123I will therefore order the Municipality to initiate a process under section 78 of the Drainage Act to secure a sufficient outlet for the Drain. A sufficient outlet is defined in the Drainage Act as a point at which water can be discharged safely so that it will do no damage to lands or roads.

124While it is the responsibility of the appointed engineer to lead the section 78 process, I wish to be clear that the exercise should not be a matter of simply incorporating the February 2016 mitigation works into the Drain. The slope where that work was installed is, on the evidence, unstable. On the evidence, that work is temporary because, with continuing erosion and regression of the high bluff, the anchor structure will in time succumb to and suffer the same fate as the anchor structure from the 2007 Outlet Report – it will fall over and down the bluff. The evidence before me indicates that, to the north, the slopes to the Catfish Creek are more stable, though of similar height to the high bluff on the Lake. Consideration was given to diverting the Drain outlet to Catfish Creek in conjunction with Elgin County’s establishment of the new Dexter Line. At the time the County dismissed the suggestion and the Municipality dropped it. The County does not have a veto under the Drainage Act, even if working under and around their road allowance may be expensive to the County. While it is for the appointed engineer to decide, my strong recommendation for his or her consideration is that an alternative outlet to the Catfish Creek should be canvassed seriously as a more suitable long-term outlet solution for the Drain.

125In his evidence Mr. Cronk described seepages and “goop” material that are coming out of the sand layer at the top of the bluff in the vicinity of the 2016 outlet structure and the HDPE pipe. He is concerned that there are leakages or unconnected pipes from field tile or previous Drain pipes which have not been identified connected or sealed effectively. He is anxious that these unidentified flows are exacerbating the erosion problem unnecessarily. Again, it is for the appointed engineer to decide but it is my recommendation that these issues be investigated and addressed if possible.

126With respect to the HDPE pipe, in the September 14, 2015 letter from Spriet Associates to the KCCA in support of the permit for the mitigating outlet works, there is reference to anchoring cable and anchors to be drilled into the ground. This is a reflection of the recommendations in Mr. Bedell’s supporting letter to the Municipality dated September14, 2015. None of the numerous photos of the HDPE pipe show anchoring cables or anchors. If the HDPE pipe is to be maintained, it is recommended that the appointed engineer revisit that anchoring issue and require it or not as the appointed engineer may decide.

127Finally, when assessing the cost of any work arising from the section 78 process, the appointed engineer is to assess only those expenses incurred after the date of this decision.

128Pursuant to subsection 118(2) of the Drainage Act, expenses incurred by the Municipality in connection with the Drain from April 2011 to the date of this decision, including the cost of the mitigation works completed in February 2016 as well as the expenses arising from this proceeding, shall be payable out of the general funds of the Municipality and shall not be levied upon the lands assessed for the maintenance and repair of the Drain. For this purpose the expenses of the Municipality shall include any costs payable by the Municipality net after deducting any costs payable to the Municipality.

129The reason for this order is that, in all the circumstance, I find that the damages and costs which are payable by the Municipality are the result of the Municipality’s inaction and omissions in the maintenance and repair of the Drain, particularly the Drain outlet and the insufficient outlet occasioned by its failure, and in carrying out the provisions of the Drainage Act to provide maintenance and repair of the Drain or to provide mitigating measures to stop the damage caused by the insufficient outlet.

130If the parties are unable to agree about costs, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days.