Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2022 ONDR 3

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2022 ONDR 3

DATE OF DECISION: 2022-04-24

Court File No.: CV-21-00000727-0000 (Chatham)

B E T W E E N:

ERIE SHORE DRIVE PROPERTY OWNERS ASSOCIATION, TREVOR DIXON, ROWAN DIXON, ROBERT DIXON, RICHARD JOSEPH BARNIER, WENDY ANNE BARNIER, KEITH GORDON PEARCEY, DAVA ROBERTSON PARR, KIMBERLEY ISAAC, RONALD FRANCIS VAN DER PAELT, SARAH-LOUISE VAN DER PAELT, GARY DANIEL JANADIA, MICHAEL KEITH JANADIA, RISARG HUFF, LINDA MAE HUFF, CHERYL ANN WALLACE, JANET CHARLOTTE WALLACE, STEPHANIE BOUDREAU, TRACY ANN HENRY, GLORIA BLONDE BLACK, LYNDA MAE DODMAN, STELLA MARIE DODMAN, MICHAEL SCOTT MORRIS, DEBRA ANN ZIEMBA, EARL HENRY NEAR, JACOBA NEAR, JONATHON MICHAEL SOUTHEN, SHANNON DEANNA WESTGATE, FRANK SPARKS, JENNIFER ANNE SMITH, SIMON HERBERT SMITH, BAVENDRAN ATCHUTHAMPILLAI, EDWIN CLAUDE WOOD, DAVID PATERSON, HOLLY PATERSON, TREVOR RONALD MORTON, FRANK ARTHUR SROKOSZ, DYANNE SROKOSZ, RONALD BRUCE GILLESPIE, Edward Gerard Peck as Estate Trustee of the ESTATE OF WILLIAM ELDON PECK, Deceased, and Betty Peck as Estate Trustee of the ESTATE OF LARRY ALLEN PECK, Deceased; DAVID CHARLES PECK, DENELLE LEA PECK, PAUL MAILLOUX, DANA SMITH, KRISTY TAYLOR, JODIE TAYLOR; HENRY ALLAN DE JONG, MARISKA DE JONG, STIPAN JURKOVIC, MICHELE JURKOVIC, GEOFFREY EDWARD DENNIS, WESLEY ALFRED TROJAND, JEAN ISOBEL HUMPHREY, JUDY LYNN OEHM, CHARLES EDWARD BELBECK, DENNY KEVIN JAKSIC, TERRA DANIELLE CADEAU, MARLENE MARIA SCHERTZER, WILLIAM MICHAEL SCHERTZER, MARIANNE COUSINEAU, JAMES COUSINEAU, ROGER DOUGLAS HOUGHTON, DEBORAH JEAN VINT, LINDA DARLENE HEYNINCK, WERNER KRAUS personally, and in his capacity as Power of Attorney for MARIA KRAUS, DAVID MICHAEL TROTECHAUD, MARJORY ELLEN TORTECHAUD, MELISSA SHARON OGDEN, KIMBERLY MARGARET SNELL, STEVEN BARRY DOBSON, SUSAN ELIZABETH O’BRIEN, DEVY LEANN BROUWER, MARGO TREVOR HINNEGAN, FRANK KEITH ZIEMBA, JEFFREY PETER KNIPFEL, SONYA LYNN KNIPFEL, MURRAY SPENCER, GAIL SPENCER, MICHELLE RUBY PENNEY, ANDREW JOHNATHAN SPENCER, GARY EDWARD BLAIN, SHARON ELAINE BLAIN, SCOTT FRANCIS, ROSEMARIE KATHI JOHANNA FRANCIS, PHILIP ALLAN SMITH, DEBRA LEE JANE SMITH, CLIFFORD-LAWRENCE BARTLETT, LYNDA LEE BARTLETT, ELIZABETH COLLEEN FLETCHER, 2255577 ONTARIO INC., EDWARD JOSEPH REITBERGER, DARWIN ALLAN RICE, JENNY ROSELINDA RICE, TIMOTHY JOHN AARSSEN, ELIZABETH JEAN WEBER, CHRISTOPHER DAVID HAGER, CATHERINE MARIE PANCOE, RONALD KENNETH PESESKI, ROSEMARIE BERNADET PESESKI, JENNIFER ANN VANNECK, DAVID THOMAS RUTTY, DENISE MARYLOU RUTTY, JEANINE DORIS WATT, BERTRAM LEON MARKS, MONIQUE DARNELL MARKS, BARBARA ANN HOYETT, STEVEN EDMUND DEW, NANCY MARIE DEW, STEPHANIE LIN GELUK, CHERYL LUGEAN MASON, MYRON BURNS BUSH, DAVID RICHARD COPLEY, MARILYN MAUDE COPLEY, ACAMPORA FAMILY HOLDINGS INC., DAVID MELVIN DAVIS, MARGARET SUSAN LOUISE DAVIS, JAMES EVAN STERLING ALLIN, BRIAN GERHARD FALLAK, LAURIE ELIZABETH FALLAK, DANA DAUGHERTY, LEONARDO CARO, JANICE LYNN CARO, HARRY LOUIS VAN DYKE, MARY VAN DYKE, TERRANCE GILBERT MAYNARD, STEPHEN GARY MAYNARD, CHERYL ANN MACKENZIE, BRENDA ALICE KARLOVCEC, LORI ELLEN MCKEON, JANE DOE in her capacity as ESTATE TRUSTEE for the ESTATE OF SEAN PANJER (deceased), WILLIAM ROBERT SEATON, JULIE WENDY SEATON, STEPHANIE KATHLEEN COX

Applicants

• and -

THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT

Respondent

ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) SUNDAY, THE 24^th DAY ) OF APRIL 2022 )

ORDER

The Court of the Drainage Referee has fixed this day:

(a) to consider preliminary matters to be dealt with before requiring the Municipality to provide material in response to the supporting affidavit evidence provided by the applicants;

(b) to set dates for hearing argument about such preliminary matters and to establish a schedule for the exchange of evidence and facta in advance of such argument; and

(c) to consider such other matters as may arise;

and, after consultation with counsel for the parties, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to these rules at any time, either on request or as it sees fit. He may alter this Order by an oral ruling, or by another written Order.

2. This Order is supplementary to the December 3, 2021 Order and the February 2, 2022 Order, both of which remain in effect, as augmented by this Order, except as specifically amended by this Order; and the reasons for those previous decisions remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

3. A further case management video conference will be convened on Tuesday, October 4, 2022 commencing at 10:00 am to address the following preliminary issues:

(a) Should the claims of those applicants who are the owners of properties from Assessment Roll No.: 03600 (Trevor Dixon) on the east to Assessment Roll No.: 14500 (James Allen) on the west be dismissed on the grounds that there is no Drainage Act infrastructure on the Lake Erie shoreline of those properties for which the Municipality has any obligation for maintenance and repair under section 74 of the Drainage Act (sometimes the “Act”) or liability under section 79 of the Act for not doing so?

(b) Does the 1930 McCubbin Seawall as authorized by By-law No.: 2736 have any continuing status under the Drainage Act or has it been subsumed into and been replaced by the Todgham clay dyke/breakwater work in Area A-2 authorized by the engineer’s report adopted in 1973 by By-law No.: 5053?

(c) Does the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 have any continuing status under the Drainage Act or has it been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082?

(d) Are the applicants’ damages claims limited to physical injury or harm to property that has occurred after October 15, 2020 (i) which are additional to any injury or harm that may have already occurred prior to October 15, 2020 and (ii) which would not have occurred if Drainage Act authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report?

(e) Is the September 1, 2020 letter given to the Municipality as notice under section 79 of the Act sufficient as to identifying the “persons affected by the condition of a drainage works” and as to identifying with “reasonable certainty the alleged lack of maintenance and repair of the drainage works” so as to constitute notice as contemplated and required by section 79 of the Act?

Record for Preliminary Issues

4. For the purposes of the preliminary issues, the parties may rely on the evidence that is on record as described in the Exhibit List referred to in paragraph 13 below. As well, each of the parties may provide affidavits to supplement the evidence already part of the record. The parties will delivery any supplementary affidavits to the other party and to the presiding Referee on or before Friday, September 16, 2022.

5. The parties will deliver their facta to the other party and to the presiding Referee on or before Friday, September 30, 2022.

6. The parties are at liberty to make arrangements between themselves for the scheduling and the order of delivery of supplementary affidavits and facta so long as the affidavits and facta to be used at the hearing of the preliminary issues are provided by each party to the other and to the presiding Referee on or before the dates specified in paragraphs 4 and 5 above. And, even if the parties cross-examine on supplementary affidavits in advance of the hearing of the preliminary issues, the witnesses must attend the hearing as required by paragraph 9 below.

Order of Evidence at Hearing for Preliminary Issues

7. The order in which evidence will be given at the hearing of the preliminary issues will be as follows:

(a) The applicants will call as witnesses all whose affidavits the applicants provided as supplementary affidavits as contemplated by paragraph 4 above; those witnesses will give evidence based on the affidavits by reaffirming or correcting their affidavits and then be subject to cross-examination and questions from the presiding Referee.

(b) The Municipality will then call as witnesses all whose affidavits the Municipality provided as supplementary affidavits as contemplated by paragraph 4 above; those witnesses will give evidence based on the affidavits by reaffirming or correcting their affidavits and then be subject to cross-examination and questions from the presiding Referee.

(c) The applicants may then call any of their witnesses to give reply evidence.

8. Final submission by the parties will proceed in the same order as specified in paragraph 7 above.

9. A party who has provided a supplementary affidavit as contemplated by paragraph 4 above must have the person who signed the affidavit attend the hearing for the preliminary issues to give oral evidence, unless the party notifies the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.

Future Case Management Conferences

10. Future case management video conferences will be scheduled to address:

(a) Identification of issues for the hearing of the merits.

(b) Fixing a time for the Municipality to deliver responding materials.

(c) Fixing a time for the delivery of other documentation, having regard for section 11 of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee and dealing with any other issues of disclosure.

(d) Making provisions about access to and login credentials for participants in the video conference hearing.

(e) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).

(f) Identifying the number and nature of witnesses to be called by each party.

(g) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses.

(h) Estimating the amount of time required for the f hearing.

(i) Setting the commencement date for the hearing.

(j) Dealing with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.

Video Conference Protocols

11. For case management video conferences and the hearing on the merits to be conducted by video conference, the following provisions shall apply:

(a) The parties shall provide to the presiding Referee the names and e-mail addresses of those who will be on hand at the video conference hearing; that includes counsel, any witnesses and those giving instructions to counsel.

(b) Parties and those with a recognized interest in the proceeding, including news media, will be provided by the presiding Referee with access credentials, including a password, to log into the video conference at the appointed time.

(c) Parties are responsible for arranging to have their witnesses join the Zoom meeting to give their evidence at the time directed by the presiding Referee.

(d) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.

(e) Parties intending to call a witness will ensure that the witness has a holy book (Bible or Koran) or an oath-taking article (such as an eagle feather) at hand if they are to be sworn to give evidence; a holy book is not required for a witness who affirms.

(f) Prior to giving testimony, each witness shall affirm to the presiding Referee orally that they are alone in the room and that they are not relying on any undisclosed document, such as speaking notes. Witnesses are not permitted to testify with others present in the room or to use undisclosed documents without the approval of the presiding Referee.

(g) For those joining the hearing to simply observe without participation, their microphone will be muted during the hearing conference.

(h) Those joining the hearing will need a device equipped with a webcam and a microphone and access to a reliable internet connection with adequate bandwidth; the device should always be plugged in to ensure that the battery does not run low.

(i) A smartphone may only be used at the discretion of the presiding Referee; the use of a smartphone is discouraged due to potential disruptions, such as incoming calls and messages, and the risk of running out of battery.

(j) Those joining the hearing will normally be alone in their location; if they are not, the presiding Referee may require such other persons to leave the room during the proceeding. There is an ongoing obligation to inform the presiding Referee if they are joined by someone else during the proceeding.

Documents and Exhibits

12. Because case management video conferences and the hearing on the merits are to be conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, file an electronic copy of the exhibit with the court via the One-Key portal and, when doing so, shall identify Court File No.: CV-21-00000727-0000 (Chatham) and the exhibit identifier assigned by the presiding Referee; a copy of the letter or e-mail of transmittal shall be provided to the presiding Referee.

(e) Court Orders, the application, notices of motion, facta, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and facta should be filed with the court and item 12(d) above applies mutatis mutandis.

13. At the time of this Order, the following documents are part of the record:

Notice of Application issued May 18, 2021

Order dated December 3, 2021 and issued the same day by Andrew Wright, Acting Drainage Referee, dealing with the giving of notice of the application

No.:1

Affidavit of Service of the giving of notice of the application by the applicants sworn by Jean Tousignant on December 13, 2021

No.: 2

Affidavit of compliance by the Municipality with its obligations under the December 3, 2021 Order sworn by Samuel Kirwin on January 5, 2022

Order dated February 2, 2022 and issued the same day by Andrew Wright, Acting Drainage Referee, identifying the parties to the application and giving directions to the applicants about providing supporting affidavits

No.: 3

Engineer’s Report dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E. including

(i) Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(ii) Extract of Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.,

(iii) Plan B with Profile dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(iv) Profile of Concession Drain dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(v) Profile of Third Concession Drainage Works dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

No.: 4

Engineers’ Report dated November 5, 1930 signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law No.: 2726 including

(i) Plan of Part of the Shore of Lake Erie and Inundated Lands and Roads dated October 8, 1930 and signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C.

(ii) Blueprint version of the Plan referred to in the item above

No.: 5

Engineer’s Report dated December 7, 1945 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and Engineer’s Report dated January 12, 1946 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E., and Engineer’s Report dated March 26, 1946 all signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by and by W.G. McGeorge, O.L.S., C.E., (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law No.: 3375 (provisionally adopted April 8, 1946 and finally enacted January 12, 1948) including

(i) Plan and profile of Sheet Pile Sea Wall dated January 12, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

(ii) Detail of Piles issued January 22, 1946 by H.E. McKeen & Co. Limited Algoma Steel Sheet Piling – Montreal

(iii) Plan showing lands affected by Lake Shore Protection of Burk Drainage Works dated March 26, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

(iv) Blueprint version of the Plan referred to in item (iii) above

No.: 6

Engineers’ Report dated May 8, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers’ Report dated June 6, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers’ Report dated March 12, 1948 signed by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) all attached to and adopted by Harwich Township By-law No. 3401 provisionally passed on April 12, 1948 and finally passed December 15, 1949 including

(i) Plan of Seawall and Groynes for Lakeshore Protection of Burk Drainage Works dated June 6, 1947 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

(ii) Plan showing Lands affected by Lakeshore Protection of Burk Drainage Works dated March 12, 1948 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

No.: 7

Plans dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. being

(i) Plan A showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

(ii) Plan B showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

No.: 8

Engineer’s Report dated May 1, 1968 and signed by E.C. Brisco, P.Eng., O.L.S., M.E.T.C. (wooden seawalls and groynes) attached to an adopted by Harwich Township By-law No.: 4716 provisionally passed on June 10, 1968 and finally passed January 13, 1969. [Note: No plan or profile for this Engineer’s Report can be located.]

No.: 9

Engineer’s Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement)

No.: 10

Engineer’s Report for Area A-2 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5053 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including

(i) Extract of a plan of Area A-2 signed by the contractor and by the Township

(ii) Plan and Profile of the Erie Beach Drain dated February 1, 1973 and signed by David McGeorge B.A.Sc. O.L.S.

(iii) Plan showing Area A2 of Burk Drainage Works Embankment Protection dated June 1973, last revised November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

(iv) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. Book No. 1017 – 73004.A2.2

(v) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3

(vi) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.4

(vii) Full version of Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3

No.: 11

Engineer’s Report for Area A-3 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5054 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including

(i) Plan of Profile of proposed works for Area A-3 of Burk Drainage Works Embankment Protection dated June, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

No.: 12

Engineer’s Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5082 provisionally passed on February 11, 1974 and finally passed on some date in 1974 including

(i) Plan and Profile for Area A-1 of Burk Drainage Works Embankment Protection dated November 3, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

No.:13

Engineer’s Report prepared under section 76 of the Act to establish an assessment schedule for future maintenance of the Burk Pumping Scheme issued by Todgham and Case Associates Incorporated dated October 15, 1986 and signed by E.E. Dries, B.A.Sc., P.Eng. [Note: The plan of assessed properties referred to in this Engineer’s Report cannot be located.]

No.: 14

Engineer’s Report prepared as a preliminary report under section 10 of the Act issued by Todgam & Case Associates Inc. dated May 15, 1998 and signed by E.P. Dries, P.Eng. including

(i) Figure No. 1 being a Plan of the Burk Drainage area dated March 1998

No.: 15

Engineer’s Report on the Burk Drainage Works 2013 prepared pursuant to section 78 of the Act, dated June 12, 2013, issued by K. Smart Associated Limited and signed by Neal Morris, P.Eng., including plan and profile, adopted by By-law No.: 153-2013 read a first and second time on July 15, 2013 and finally enacted on October 7, 2013.

No.: 16

Affidavit of Terra Cadeau sworn March 22, 2022, including 77 Exhibits A through YYY

No.: 17

Affidavit of John Kuntze, P.Eng. sworn March 22, 2022, including Exhibits A and B

No.: 19

Affidavit of Trevor Dixon sworn March 4, 2022, including five Exhibits A through F

14. The documents that have exhibit numbers will retain their exhibit numbers through the case management hearings and hearing(s) on the merits of this case. New exhibits will be identified by the next ensuing exhibit number and be added to the list as the hearing(s) progresses.

15. The documents listed are intended to reflect those things which would normally be filed in court or which would be used in the course of the hearing; it does not include but does not intend to dispense with routine items such as appearances, affidavits of service required by the court staff for filings such as the application, appearances, any motions and routine affidavits of service for supporting affidavits.

16. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 13 above or legislation, other than the Act, copies must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be referred to; the presiding Referee may abridge this time.

General Matters

17. When any document is required or permitted to be served, it shall be served by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service) and shall be sent to:

(a) the party’s representative, if any;

(b) where the party is an individual and is not represented, to that party directly, where that party has provided an address for service and/or an e-mail address;

(c) where that party is a corporation and is not represented, to the corporation directly, to the attention of an individual with apparent authority to receive the document.

18. For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.

19. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.

20. Costs of the day are reserved to the final disposition of this matter.

21. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.

Dated at London this April 24, 2022.

____________________________________ Andrew C. Wright Acting Drainage Referee

REASONS

1. The principal purpose of this Order is to identify preliminary issues so they can be addressed and disposed of before the Municipality is required to respond to the entirely of the applicants’ case. The intention is to spare the expenditure of municipal resources with respect to matters which are not pertinent.

2. In this connection, it should be remembered that the Municipality is the administrator of the Drainage Act (sometimes referred to as the “Act”) and is not the ultimate payor for the costs incurred; those who pay are those that use the drainage works. In this case, when referring to the expenditure of municipal resources required by this application, it should be in contemplation that, in the normal course, the municipal expenditures will be passed on, by way of assessment, to the predominantly farm community that is assessed for the Burk Drainage Works described in paragraph 18 below. It is important therefore to try to limit, as much as possible, the expenditure of municipal resources on this application. A number of those in that farm community, though not parties, have observer status for hearings in this case.

3. None of the applicants are assessed for the Burk Drainage Works.

4. To understand the rationale for the preliminary issue questions, a considerable amount of background is required. The background which follows in these reasons is based on the documentation evidence adduced to date as enumerated in the Exhibit List in paragraph 13 of the Order and upon facts of which judicial notice has been taken.

Exhibits List

5. Before getting to the background detail, a word should be said about the Exhibits List in paragraph 13 of the Order. The Exhibit List does not reflect all of the 75 supporting affidavits provided by the applicants. I have entered as exhibits three of those affidavits. The first is the affidavit of Terra Cadeau sworn March 22, 2022 because it provides extensive background information. I have also entered as an exhibit the affidavit of John Kuntze, P.Eng. sworn March 22, 2022 because it provides professional opinion evidence. Counsel will note that I have left space in the Exhibit List for Mr. Kuntze’s curriculum vitae and Acknowledgement of Expert’s Duty to be accommodated as exhibits when provided. Finally, I have entered as an exhibit the affidavit of Trevor Dixon sworn March 4, 2022 because it identifies the westerly boundary of the clay dyke/breakwater works in Todgham’s Area A-2. Mr. Dixon says that the Municipality owns the dyke and the land on which it is situated, and that the Municipality’s land runs from his property all the way to Erieau. The significance of this will become clearer below.

6. I have not yet entered as exhibits the rest of the 75 supporting affidavits. They all focus on site specific details related to the individual properties owned by each of the applicants. If the claims of some of the applicants are dismissed, the possibility of which is contemplated by the preliminary question referred to in item 3(a) of the Order, then the affidavits of those applicants do not need to be part of the record and they will not be entered as exhibits. The supporting affidavits of all of the applicants whose claims continue after the preliminary questions are answered, will be entered as exhibits to which the Municipality will need to respond.

Interim Status of Reasons

7. In order to understand, much less debate the preliminary issues questions identified in paragraph 3 of the Order, an evidentiary and legal framework is required. The difficulty at this stage of the proceeding is that the evidence is not complete, and the legal issues have not been argued. For the purposes of these reasons, therefore, it is important to appreciate that the Municipality has not yet been required to provide responding affidavits and the applicants’ supporting affidavits have not been seasoned by cross-examination.

8. The evidence upon which these reasons is based starts with the Engineers’ Reports (the “Engineers’ Reports”) identified in Exhibit 3 through 15 the Exhibits List in paragraph 13 of the Order. The Engineers’ Reports have been in the possession for the Municipality since they were authored and the Engineers’ Reports would have been available to and been digested by the applicants before the application was launched in May 2021. Also, those Engineers’ Reports were made available to the public online and for physical inspection by the Municipality in December 2021 when notice of this application was circulated to all those assessed for the Burk Drainage Works and to all owners of properties along Erie Shore Drive who are not applicants.

9. I have read and tried to understand the Engineers’ Reports and these reasons reflect that understanding. To the extent that the appellants’ witnesses touch upon the Engineers’ Reports regarding the Drainage Act infrastructure authorized by the Engineers’ Reports, these reasons are not inconsistent with the applicants’ material. The applicants’ affidavits are specifically reflected in the preliminary issues questions in item 3(b) and item 3(c) of the Order. If I have misinterpreted or missed something in my review of the Engineers’ Reports, I am amenable to being corrected by the parties’ witnesses.

10. I have also relied upon many of the applicants’ 75 supporting affidavits which were provided on March 24, 2022. Some of the supporting affidavits, with multiple exhibits, run to a thousand pages in length. At this stage of this process, these reasons reflect the applicants’ untested, unchallenged best case. In time, as the application progresses, my understanding of the evidence will likely evolve but, to refine the issues to what are germane, some evidentiary basis is required and just now that is the Engineers’ Reports and the applicants’ best evidentiary case.

11. In my reasons I have taken judicial notice of the Municipality’s publicly published Official Plan and zoning by-law.

12. With respect to Lake level elevations and the specified elevation of infrastructure described in the Engineers’ Report, I have taken judicial notice of online publications of the federal Department of Fisheries and Ocean, Natural Resources, Canada, its Canadian Geodetic Survey division and the Canadian Hydrographic Service. I had anticipated hearing something from the applicants’ engineering witness about the Engineers’ Reports specified elevations of Drainage Act infrastructure relative to current Lake water levels. If I have misinterpreted or missed something, I am open to being corrected by the parties’ other witnesses.

13. Also, in these reasons I have expressed my understanding of the law as it relates to a municipality’s obligations under section 74 and section 79 of the Drainage Act and as to the nature and extent of a municipality’s liability for failing to discharge those obligations satisfactorily. My view of the law is to be understood to be open to debate via submissions by counsel supported by applicable legislation and relevant jurisprudence. Again, the point of the preliminary issues is to identify and decide legal questions before municipal resources are expended on matters which are not pertinent. A good example is the considerable effort that would be required to respond to damages claims which pre-date the giving of the 45-day notice contemplated by section 79. Those efforts would be a waste of resources if those pre-notice claims are determined to be ineligible for recovery simply on the basis of when they were incurred. It is important to settle, in principle, what is eligible for recovery in advance and that requires a consideration of applicable law before the applicants’ 75 damages claims are examined at length and in detail.

Background

14. This application is made by the owners of residential and recreationally properties lying between Erie Shore Drive and Lake Erie. These properties are in the geographic Township of Harwich now in the Municipality of Chatham-Kent (the “Municipality”); the applicants’ properties are located just west of the former Village of Erieau.

15. The Municipality was created in 1998 as the result of a municipal restructuring amalgamation of all local municipalities in Kent County. The former Township of Harwich and the former Village of Erieau were amongst the amalgamating municipalities. The Municipality is a single tier municipality with the status of city.

16. The application is made under the Drainage Act. The application alleges that the Municipality failed to maintain and repair drainage works infrastructure constructed and installed under the Act or a predecessor of the Act. The claim is that such maintenance and repair is the obligation of the Municipality under the Act and that the Municipality’s failure has resulted in damage to the applicants’ properties. The applicants seek compensation for the damage caused and an Order under the Act requiring the Municipality to rectify its non-repair failures.

17. While the focus of this case is upon the natural sandbank north of the Lake on which Erie Shore Drive has been constructed, its connection to drainage works under the Act requires a summary description of a much larger drainage project of which the sandbank is a part.

18. The drainage works were established under The Drainage Act, as it then was, under an engineer’s report issued in 1914. The purpose was to enable the agricultural use of the fertile peat muck soil in that location by protecting the farmland area from the waters of Rondeau Bay and Lake Erie. This was done by a number of internal and external drains, the construction and enhancement of protective breakwater embankments and the pumping of water from the low-lying land into Rondeau Bay. There is a pump in the northeast corner of the low-lying land and also a pump about two-thirds of the way south along the length of the railway embankment, at the east end of the internal Big Creek Drain. Both pump accumulated water into Rondeau Bay. The drainage scheme, called the Burk Drainage Works, is fundamentally the same now as it was initially.

19. Broadly speaking, the Burk Drainage Works are bounded on the north by the Third Concession Road, now called Lagoon Road. It is bounded on the west by the Clark Sideroad, now called Bisnett Line. The south boundary is the natural sandbank separating the farmland from the Lake. The east boundary is a railway embankment separating the farmland from Rondeau Bay.

20. The railway was originally identified as the Pere Marquette Railway, latter as the Chesapeake and Ohio Railway. When the Burk Drainage Works were established in 1914, the railway served the coal dock at the east end of Erieau. In time, with the improvement of roads and the replacement of coal by natural gas, rail traffic declined and then disappeared in this location by the middle of the twentieth century. The last rail traffic used the line in the late 1960’s and the railway was formally abandoned as a railway in the mid-1970’s. The C&O railway embankment nonetheless remained a significant element of the Burk Drainage Works protecting the Burk Drain Farm Area from intrusion by Rondeau Bay.

21. The total farmland area protected by the Burk Drainage Works is in the order of 647 hectares (1,600 acres) and much of it lies below the current still water elevation of Lake Erie. I sometimes refer to the area of protected farmland, including roads in or as they run through the area, as the Burk Drain Farm Area.

22. A digression is warranted about compass bearings. While the Third Concession Road is said to be to the north, it is in fact about 45 degrees to the northeast, about halfway between north and east. Because it can be cumbersome, at best, and potentially confusing to refer to northeast, northwest, southeast and southwest, the parties and the Court have adopted the convention of referring to the Third Concession Road (now Lagoon Road) as being north and the rest as described in paragraph 19 above.

23. Over the decades there have been maintenance and repairs and improvements to the Burk Drainage Works. The most recent report is Engineer’s Report on the Burk Drainage Works 2013 prepared pursuant to section 78 of the Act, dated June 12, 2013, issued by K. Smart Associated Limited and signed by Neal Morris, P.Eng., including plan and profile. This engineer’s report was adopted by By-law No.: 153-2013 which was read a first and second time on July 15, 2013 and finally enacted on October 7, 2013.

24. This most recent engineer’s report has little to do with the issues raised in this application about the natural sandbank barrier between the Burk Drain Farm Area and the Lake. This engineer’s report focuses on replacing a 35-year-old 25,000 US GPM pump with a new 35,000 US GPM pump and 173 HP diesel generator at the pumping station at the northeast corner of the Burk Drain Farm Area. The engineer’s report also addressed issues with internal drains. It makes no reference to works for shoreline protection from Lake Erie or Rondeau Bay. Finally, in addition to an assessment schedule for the work contemplated by the 2013 engineer’s report, it provided assessment schedules for the maintenance of all of the various elements of the Burk Drainage Works. It is this assessment schedule that would be the basis for passing on municipal expenditures for this application to the predominantly farm community that is assessed for the Burk Drainage Works.

25. As indicated, this 2013 K. Smart engineer’s report has little bearing on this application, but the point is that the Municipality has been permitted to be selective in the engineers’ reports and documentation produced pursuant to subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee. I did not wish to have the Municipality produce more than a century’s worth of documentation when much of it concentrated on other parts of the Burk Drainage Works not pertaining to the issues relating to the natural sandbank barrier which is the focus of this application. The applicants have been given the opportunity to review the Municipality’s records and to have produced any document which they felt were relevant. The documents produced and relied upon by the Court are those which the Municipality and the applicants believe to be pertinent.

Legal Context

26. The Act makes a distinction between improvements to drainage works and the maintenance and repair of drainage works. The principal distinction is that an improvement requires an engineer’s report whereas maintenance and repair of drainage works involves restoring the drainage works to the standards specified in the most recent engineer’s report.

27. There is considerable engineering work and statutory process and appeal rights for an improvement. When it comes to maintenance and repair, the engineering work has been done and the assessment schedules established so it may be undertaken by reference to the existing engineer’s report.

28. The Act defines “improvement” as “any modification of or addition to a drainage works intended to increase the effectiveness of the system;”

29. Subsections 78(1) and 78(1.1) of the Act govern how an improvement may be undertaken and those sections appear as follows:

78(1) If a drainage works has been constructed under a by-law passed under this Act or any predecessor of this Act, and the council of the municipality that is responsible for maintaining and repairing the drainage works considers it appropriate to undertake one or more of the major improvement projects listed in sub-section (1.1) for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by section 4.

78(1.1) The major improvement projects referred to in subsection (1) are:

1. Changing the course of the drainage works.

2. Making a new outlet for the whole or any part of the drainage works.

3. Constructing a tile drain under the bed of the whole or any part of the drainage works.

4. Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.

5. Extending the drainage works to an outlet.

5.1 Improving or altering the drainage works if the drainage works is located on more than one property.

6. Covering all or part of the drainage works.

7. Consolidating two or more drainage works.

8. Any other activity to improve the drainage works, other than an activity prescribed by the Minister as a minor improvement.

9. The court has been informed that, in May 2021, the Municipality appointed an engineer, under section 78 of the Act, to prepare a preliminary report under section 10 of the Act pertaining to the Burk Drainage Works. RC Spencer Associates Inc. are the engineers appointed. There is some confusion about which individual engineer has charge of this project. Subsection 8(2) of the Act requires an appointed engineering corporation to identify the engineer who has charge; the Municipality has advise that Richard C. Spencer, P.Eng. is the assigned principal in charge of the project, whereas the applicants understand that Dennis McCready, P.Eng., is the assigned engineer. This needs to be clarified by the Municipality.

10. While the appointment does not specifically speak to improvements to the natural sandbank barrier between the Lake and the farmland to the north, the Request for Proposals that led to the appointment refers to the need to address the effects of erosion, undermining and degradation of the sand bank barrier dyke on which Erie Shore Drive has been built.

11. The RFP document requires the preliminary report to offer options, with preliminary designs, and recommendations for a preferred course of action. The preliminary report is also to include estimated construction costs for the options presented and an assessment rationale for each option.

12. I have watched and listened to the video recording of the “on-site meeting” for this preliminary report. The recording is attached as an Exhibit to the affidavit of Terra Cadeau sworn March 22, 2022. The meeting was held via video conference using the Zoom platform on January 27, 2022 and was led by Dennis McCreedy, P.Eng. The video conference ran for about an hour and was technologically challenged. The engineer focused on the Burk Drainage Works and gave a summary of the engineers’ reports going back to 1914. Public participants raised the shoreline protection issue to which the engineer responded that he was aware of it as an obvious issue that needs to be addressed, though no solutions were discussed. A City representative (Tim Dick) mused about the limitations of the Drainage Act to solve the shoreline protection troubles and raised the notion that solutions and funding outside of the Drainage Act may be required.

13. I observe that no one offered shoreline protection suggestions in this meeting.

14. It is anticipated that an engineer’s preliminary report will be issued some time in 2023. Once the preliminary report has been delivered to the Municipality and once Council has considered it, Council can instruct the engineer to complete a final report or refer the preliminary report back to the engineer for reconsideration or the Council may elect to do nothing.

15. If Council decides to proceed with a drainage project, before any proposed improvements can be undertaken, there will be the processes, including appeals under the Act which apply under section 78 of the Act.

16. This case is not about an improvement under section 78 of the Act; it is based on section 79 of the Act for the lack of maintenance and repair of the Burk Drainage Works.

17. The Act defines “repair” as “the restoration of a drainage works to its original condition;” and it defines “maintenance” as “the preservation of a drainage works;”.

18. The obligation under the Act of a municipality for maintenance and repair are spelled out in section 74 and section 79 of the Act; those sections are as follows:

74 Any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, relating to the construction or improvement of a drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes, to the extent that such drainage works lies within the limits of such municipality, at the expense of all the upstream lands and roads in any way assessed for the construction or improvement of the drainage works and in the proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or on appeal therefrom.

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

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

Review of Historical Engineers’ Reports

40. As mentioned, this application is based on section 79 of the Act. It is therefore necessary to understand what has been specified in the historical engineers’ reports in order to understand what would need to be done to restore the drainage works infrastructure to the standards specified in the most recent engineer’s report.

41. Before embarking upon this exercise, a word is warranted about units of measurement. The earliest reports referred to feet whereas, by the end of the 20^th Century, distances were measured in metres. As to Lake levels and the elevation of infrastructure, the 1930 report used as a benchmark the top of a wood cap at the centre of Pere Marquette Railway Bridge at the Third Concession Road. Later reports use the elevations based on the Dominion Public Works gauge at Erieau when it registers zero. Finally, in 1973, elevations are specified by reference to International Great Lakes Datum (IGLD). All of these need to be reconciled to understand what they translate into today in terms as to elevation relative to current Lake water levels. More will be said about this commencing in paragraph 141 below.

42. In terms of the length of the Lake shore, I have adopted the stations referred to in the 1998 preliminary report prepared by Todgham & Case. It starts at the east end of the natural sandbank barrier at station 0+000 and then proceeds to the west ending at station 4+150 at intersection of the Lake with the southerly extension of Clark Sideroad, now Bisnett Line. These measurements are in metres, so the length is 4,150 metres (4.15 kilometres) or 13,615.5 feet (2.56 miles).

43. The 1998 Todgham & Case report is a preliminary report under section 10 of the Act. It is entitled “Flood Protection Study got Erie Shore Drive in the former Township of Harwich” issued May 15, 1998 and signed by E.P. Dries, P.Eng. It represents a consideration of alternative measures; there was no final report proposing drainage works nor a by-law adopting a final report. In effect the preliminary report does not authorize any works that have status under the Act but it nonetheless provides useful information including identification of the location of historical drainage works infrastructure along the shoreline and the state of repair thereof at the time of the preliminary report. As mentioned, I have adopted the station distances along the lakeshore used in that report.

44. I will review the engineers’ report which relate to the natural sandbank barrier, acknowledging that there are other engineers’ reports to which I do not refer which deal with improvements to other parts of the Burk Drainage Works.

1914

45. The original 1914 Engineer’s report is an Engineer’s Report dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E. This report called for the creation of the Lake Shore Drain on the north side of the Lake Shore Road (now Erie Shore Drive) and the placing of the spoil from the excavation on the north side of the sandbank barrier to provide reinforcement of what was already there. It is difficult from the profiles available to discern the elevation of the Lake level or of the Lake Shore Road. There were no protective measures specified for the Lake side of Lake Shore Road.

46. There is a By-law adopting this 1914 Engineer’s report, but the By-law number is unclear, as is the date when it was enacted. Nonetheless this 1914 report represents the genesis of what was done at that time and all that follows.

1930 Work

47. There was an improvement in the early 1930’s. The by-law was By-law No.: 2736 provisionally adopted November 17, 1930 and finally passed January 12, 1930. This By-law adopted an engineer’s report dated November 5, 1930 and signed by W.G. McGeorge, O.L.S., & C.E. and Geo, A. McCubbin, O.L.S., M.E.I.C. The work specified was reinforcement of a then existing double row of piles at the easterly 1,000 feet (304.8 metres) which were to be augmented by another row of piles. There is no indication of when the then existing double row of piles were installed or by whom.

48. In addition, there was to be constructed 3,000 feet (914.4 metres) of wooden seawall with groynes to the west of the piles.

49. Under this 1930 report there was also to be constructed an earth embankment on the west side of Big Creek and north side of the Fourth Concession Road. The Fourth Concession Road became County Road 12 and after the creation of Chatham-Kent it became Erieau Road. These embankments were in the location now identified as being west and north of McGeachy’s pond.

50. Elevations for this work were set to benchmarks at McGeachy’s cottage – the top of the concrete cap of the parapet wall on the easterly side of the front steps of the McGeachy cottage (14.95 feet) - and the top of the wood cap at the centre of Pere Marquette Railway Bridge at the Third Concession Road (12.25 feet). The elevation of the top of seawall was to be at elevation 12.00 feet; the top of wales (groynes) were to be at 11.00 feet tapered to 10.00 feet elevation at lake ends. The earthen embankments were to be at, at least, 14.00-foot elevation. There is no indication of what the Lake elevation was.

51. The work along the Lakeshore consists of 1,000 feet (304.8metres) of piles and 3,000 feet (914.4metres) of wooden seawall and groynes. The combination of these two [304.8 metres + 914.4 metres = 1,219.2metres] are approximately Area A-2 in the 1973 A.R.D.A dyke work as described in the 1998 Todgham & Case preliminary report as running from station 0+000 to approximately station 1+225. There is no provision for any work on the Lakeshore to the west of this 4,000 feet (1,219.2 metres) of infrastructure.

1946/49 Work

52. The 1946 to 1949 work dealt with shoreline protection at the west end of the natural sandbank on the Lakeshore. There were two By-laws involved.

53. By-law No.: 3375 was provisionally adopted April 8, 1946 and finally passed January 12, 1948. It adopted a report dated December 7, 1945 that was signed by Geo. A. McCubbin, O.L.S., M.E.I.C. and a second report dated January 12, 1946 also signed by Mr. McCubbin.

54. This By-law No.: 3375 work involved the installation for 800 feet (243.84 metres) of wooden seawall with 17 groynes. The location of this infrastructure is said to be “immediately adjoining the Lake Shore Road and about one-quarter mile east of Erie Beach.” As for elevations the engineer’s report specifications require that “Tops of round piles and sheet piling at the off-shore end shall be at Elevation 573.0 or two and one-half feet above the lake surface when the Dominion Public Works gauge at Erieau registers zero. The elevation at the shore end two feet higher than at the lake end.” I find this description confusing but I am going to assume that the Lake end of groynes are to be at elevation 573.0 feet and that the shoreline end of the wooden groynes and of the wooden seawall are to be two feet higher at elevation 575.0 feet.

55. In the engineer’s report there is reference to a distance of 7,425 feet (2,263.1 metres) of unprotected shoreline between the 800 feet of the then proposed seawall and a seawall and groynes constructed in 1943, presumably to the east in the vicinity of the 4,000 feet of drainage infrastructure authorized in the 1930’s. There are no engineers’ reports or drainage by-laws authorizing seawall and groyne work in 1943.

56. While the description for the location of this seawall is imprecise, it is part of the A-1 Area location identified in the 1998 Todgham & Case preliminary report. That A-1 Area goes from is from station 3+075 to station 3+575 so 500 metres or 1,640.42 feet. The 800 feet of seawall and groynes authorized by By-law No.: 3375 is only about half of the A-1 Area. I am going to refer to this 800-foot section of seawall and groynes as the “1948 McCubbin Seawall”; the 1948 year reflects the date of final passage of the enabling by-law No.: 3375.

57. That brings us to By-law No.: 3401 which was provisionally adopted April 12, 1948 and finally passed December 15, 1949. It adopted an engineers’ report dated May 8, 1947 and signed by Geo. A. McCubbin, O.L.S., M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. as well as an engineers’ report dated June 6, 1947 also signed by Messrs. McCubbin and McGeorge and a third engineer’s report dated March 12, 1948 signed by Geo. A. McCubbin, O.L.S., M.E.I.C.

58. The May 8, 1947 engineers’ report refers to the 800 feet of work done “last year”, more erosion, ratepayer requests for additional protection and high Lake water levels and recommends no additional work.

59. The June 6, 1947 engineer’s report refers to continuing issues with high Lake levels but recommends no further action.

60. The March 12, 1948 engineer’s report refers to “a report of March 26, 1946 and by-law adopting same the construction of 800 lineal feet of sea wall and 17 groynes was undertaken and completed as emergency protection of the Embankment and of the Drainage Works”. No copy of a March 26, 1946 report or of an adopting by-law has been produced.

61. The March 12, 1948 engineer’s report goes on to say: “In 1947 an extension consisting of 750 feet of sea wall and 16 groynes was undertaken as a further emergency work on the advice of Mr. McGeorge and myself and on specification dated June 6, 1947.” and that

Some of the owners of lands in the drainage Works have, through private funds, constructed two additional groynes about 250 feet east of the 750 feet extension and it is now proposed to construct a sea wall 1000 feet in length, partly to the west and partly to the east of the above mentioned two groynes, and to construct 20 additional groynes, all as part of the Lake Shore Protection of the Burk Drainage Works.

62. The June 6, 1947 specifications are included with and adopted as part of By-law No.: 3401.

63. The 750 foot emergency extension must have been to the east of the original 800 feet of seawall and groynes (under By-law No.: 3375) because the two privately funded groynes, without seawall, were to the east. The additional 1,000 feet seems to provide a seawall for the two private groynes (partly to the west) and then going east with 20 additional groynes. It appears that this 1,000 feet under By-law No.: 3401 includes the 750 feet done as emergency work in 1947. I am going to refer to this 1,000-foot section of seawall and groynes as the “1949 McCubbin Seawall”; the 1949 year reflects the date of final passage of the enabling by-law No.: 3401.

64. So, we have the original 800 feet 1948 McCubbin Seawall under By-law No.: 3375 plus this 1,000 feet of 1949 McCubbin Seawall under By-law No.: 3401 to the east of the original 800 feet. This 1,800 feet (548.64 metres) approximates the 500 metres (1,640.42 feet) identified as Area A-1 in the 1998 Todgham & Case preliminary report between station 3+075 and station 3+575.

65. As for elevations, the June 6, 1947 specifications for the 1,000 feet of seawall under By-law No.: 3401 provide as follows:

The sheet piling shall be driven to the full depth specified and finished at elevation 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero. Owing to the present high water of the Lake, the top of the seawall and groynes may all be finished at the same specified elevation, approximately 18 inches above high water. Zero of the Public Works gauge is assumed as elevation 570.5. At intervals of 8 feet in both the sea wall and groynes a longer sheet piling is to be driven as shown on the plans.

66. It is to be noted that the elevation of the 1949 McCubbin Seawall authorized by By-law No.: 3401 is at elevation 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero. This is higher than the elevation of the 800 feet 1948 McCubbin Seawall authorized by By-law No.: 3375 at elevation 573.0 or 2½ feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero at the off-shore end of the groynes and at elevation 575.0 at the shoreline end when the Dominion Public Works gauge at Erieau registers zero.

67. I have attempted to relate elevations to the current vertical measurements in the Great Lakes: IGLD 1985. As discussed, commencing in paragraph 141 below, and particularly in paragraph 153 below,

(a) The engineered specified top elevation of the 800 feet of the 1948 McCubbin Seawall authorized by By-law No.: 3375 at the shoreline end converts to 174.977 metres (574.07 feet) IGLD1985; and

(b) the engineered specified top elevation of the 1,000 feet of 1949 McCubbin Seawall authorized by By-law No.: 3401 converts to 175.129 metres (574.57 feet) IGLD1985.

68. The applicants assert that the 800 feet of the 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of the 1949 McCubbin Seawall authorized by By-law No.: 3401 have continuing status as Drainage Act infrastructure.

69. The 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 are in the location of Todgham’s 1,500 foot long Area A-1 which extends from the property with Assessment Roll No.: 14600 on the east to the property with Assessment Roll No.: 18000 on the west so includes the properties of the following applicants:

(a) Dana Daugherty (Assessment Roll No.: 15400),

(b) Leonardo and Janice Lynn Caro (Assessment Roll No.: 16700), and

(c) Harry Louis and Mary Van Dyke (Assessment Roll No.: 17200).

70. The north-south location of the 800 feet of the 1948 McCubbin Seawall authorized by By-law No.: 3375 and of the 1,000 feet of 1949 McCubbin Seawall authorized by By-law No.: 3401 is unclear. It is unclear whether the location of this section of wooden seawalls and groynes is onshore or whether, after 70 years of possible shoreline erosion, the location is now some distance offshore. The applicants’ evidence does not describe with any particularity the current state or fate of this 1,800-foot section of wooden seawalls and groynes. There is no description of currently existing shoreline protection features and elements (provided otherwise than under the authority of the Drainage Act) in addition to or in replacement of the 1948 and 1949 wooden seawalls and groynes. There are, however, photographs of damage along the shoreline which incidentally provide anecdotal evidence of two parts of this 1,800-foot length of shoreline.

(a) The affidavit of Leonardo Caro, sworn February 9, 2022, includes photos which show a poured concrete wall around a concrete deck at the shoreline which rises about three feet above lake level with concrete rubble and stone in the water in front. There appears to be sand under and behind the concrete walled deck. The photos look east, south and west from the shore and show no wooden seawall or wooden groynes above the water level.

(b) The affidavit of Harry Van Dyke, sworn March 2, 2022, includes photos from August 2019 of a concrete seawall with concrete rubble and boulders both inshore and on the Lake side. The concrete seawall is supported on the Lake side by widely spaced steel pilings. It is hard to see how high out of the water this concrete seawall is. The photos also show large concrete blocks on the ground behind the concrete seawall. Most of the photos are to the south and show no wooden seawall or wooden groynes above water level. There is one photo to the west which shows in the background a steel groyne and perhaps a steel seawall. There are no wooden groynes or seawalls above water shown to the west.

71. There is no suggestion by the applicants that the 1,800 feet of the Drainage Act authorized wooden seawalls and groynes from 1948 and 1949 should be restored to the engineers’ reports’ specifications or that such restoration will provide better shoreline protection than what presently exists.

1951 Plans

72. There are two plans dated January 6, 1951 signed by Geo. A. McCubbin, O.L.S., M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. Plan “A” shows the location of the Lake Shore Protection of the Burk Drainage Works. The second is Plan “B” which includes cross-sections for the sandbank barrier between the Lake and the protected farmland to the north at various locations along the Lakeshore.

73. There is no engineers’ report associated with these plans nor any proposed drainage works nor any adopting by-laws.

74. The Lake level at the time is recorded as elevation 572.25 feet.

1969 Work

75. By-law No.: 4716 was provisionally adopted June 10, 1968 and finally passed on January 13, 1969. This By-law adopts an engineer’s report dated May 1, 1968 and signed by E.C. Brisco, P.Eng., O.L.S., M.E.I.C. The engineer’s report identifies that “Immediately east of Beaver Creek bridge there is a portion of the shore some 1,150 feet in length which is the only part of the beach opposite the Burk Drainage Works not protected by seawall and groynes.” The recommendation is that “this area of shoreline be protected by the construction of wood seawall and groynes of a type similar to the installation previously made along the shore further East.”

76. When referring to the beach opposite the Burk Drainage Works being protected by seawalls and groynes, Mr. Brisco does not differentiate between privately funded shoreline protection and that authorized under the Act or predecessors of the Act.

77. There is no plan or profile provided with this engineer’s report but, again referencing the 1998 Todgham & Case preliminary report, it appears that this 1,150 feet of shoreline is approximately between station 3+575 and station 3+940. Between these stations is 365 metres or 1,197.5 feet. So, it appears that the work authorized by By-law No.: 4716 is to the immediate west of Area A-1 identified in the 1998 Todgham & Case preliminary report. I am going to refer to this 1,150-foot section of seawall and groynes as the “1969 Brisco Seawall”. The 1969 Brisco Seawall does not extend westerly to the 210 metres (688.976 feet) of shoreline from station 3+940 to station 4+150 at the shore’s intersection with the southerly extension of Bisnett Line.

78. As for elevations, the specifications are identical to those for the 1949 McCubbin Seawall authorized by By-law No.: 3401 and provide as follows:

The sheet pilings shall be driven to the full depth specified and finished to elevation 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero. Owning to the present high water of the Lake, the top of the sea wall and groynes may all be finished approximately 18 inches above high water. Zero at the public Works gauges is assumed to be elevation 570.5. At intervals in both the sea wall and groynes, a longer sheet piling is to be driven as shown on the plans.

79. As discussed in paragraph 153 below, this engineered specified top elevation of seawall converts to 175.129 metres (574.57 feet) IGLD1985.

80. The applicants assert that the 1969 Brisco Seawall authorized by By-law No.: 4716 has continuing status as Drainage Act infrastructure.

81. Properties to the north of the 1969 Brisco Seawall extend westerly from the property with Assessment Roll No.: 18000 so include the properties of the following applicants:

(a) Brenda Karlovcec, Steve Maynard, Terrance Maynard, Cheryl McKenzie and Lori McKeon (Assessment Roll No.: 18100),

(b) Stephanie Cox (Assessment Roll No.: 22900),

(c) William Seaton and Julie Seaton (Assessment Roll No.: 23000), and

(d) Estate of Sean Panjer (Assessment Roll No.: 23300).

82. It is unclear whether the north-south location of the wooden seawalls and groynes of the 1,150-foot section of 1969 Brisco Seawall is on shore or whether, after 50 years of possible shoreline erosion, the location is now some distance off-shore. The applicants’ evidence does not describe the current state or fate of these the wooden seawalls and groynes. There is no description of currently existing shoreline protection features and elements (provided otherwise than under the authority of the Drainage Act) in addition to or in replacement of the wooden seawalls and groynes. There are, however, photographs of the shoreline which incidentally provide anecdotal evidence for two parts of this 1,150 foot length of shoreline.

(a) The affidavit of Brenda Karlovcec, sworn March 10, 2022, provides photos taken in August 2012, which show portions of a wooden seawall several feet offshore together with concrete, rock and concrete construction rubble on the shore in the foreground. In the background to the west there are old wooden groynes and a new metal groyne. Photos taken in April 2018 show groynes to the west; some of these are wooden and some are metal. In these pictures the shoreline is sandy with a few large boulders in the water and inland from the sand; there is no wooden seawall depicted. Another series of photos in November and December 2020 show a wall of large precast concrete blocks along the shoreline with large boulders and concrete rubble on either side of the concrete blocks. In the background of these photos, shown to the west, are the remnants of wooden groynes and at least one metal groyne; in these photos no wooden seawall is shown.

(b) The affidavit of Stephanie Cox, sworn March 14, 2022, provides photos from 2019 and 2020 showing a wooden seawall, or perhaps a retaining wall, which rises four to six feet out of the water on the shoreline. This structure is too new and too high to be part of the 1969 Brisco Seawall and groynes. There is concrete rubble around wooden seawall/retaining wall. There is a metal seawall or groyne jutting out into the Lake which rises about 3 feet above the Lake. These photos also show the tops of wooden groynes and/or a wooden seawall which are some distance offshore and are just visible out of the water. It is a strange configuration with an outer seawall appearing to be located parallel to the shoreline but at the Lake end of the groynes rather than inshore. Whatever these wooden structures are, they start about 100 yards offshore and extent another 100 yards into the Lake and appear to form a box configuration. It is regrettable that the plan associated with Mr. Brisco’s engineer’s report adopted by By-law No.: 4716 has been misplaced and is not available. That plan would have been helpful to understand the atypical box configuration of groynes and seawall. From the Cox photos, it is difficult to determine how many of these box configurations there are and whether they are to the east or west, or both. The photos also show metal seawalls and metal groynes to the west.

83. There is no suggestion by the applicants that the Drainage Act authorized wooden seawalls and groynes in this 1,150-foot section of 1969 Brisco Seawall should be restored to the specifications for the works as authorized by By-law No.: 4716 or that such restoration will provide better shoreline protection than what presently exists.

1973/74 Work

84. This work was undertaken on the basis of engineer’s reports authored by H.H. Todgham, P.Eng. He divided the work into three parts which he identified as Area A-1, Area A-2 and Area A-3. Each area had its own report and adopting by-law. Mr. Todgham recommended different solutions for each area, and each will be discussed separately below.

85. Area A-1 is described by Mr. Todgham as being 1,500 feet (457.20 metres) in length at the west end of the shoreline where the westerly 800 feet of 1948 McCubbin Seawall were constructed under the authority of By-law No.: 3375 plus the 1,000 feet of 1949 McCubbin Seawall, which was similar but six inches (0.152 metre) higher at the shoreline, constructed under By-law No.: 3401. The 1998 Todgham & Case preliminary report describes Area A-1 as a 500 metre (1,640.42 foot) length of shoreline between station 3+075 and station 3+575.

86. Area A-2 is described by Mr. Todgham as being approximately 4,300 feet (1,310.64 metres) in length at the east end of the shoreline where the 4,000 feet (1,219.2 metres) of pile and seawall protection was constructed under the authority of the 1930 McCubbin report. The 1998 Todgham & Case preliminary report describes Area A-2 as a 1,225 metre +/- (4,019.029 foot) length of shoreline between station 0+000 and station 1+225+/-.

87. Area A-3 involved the reinforcement of the railway embankment which protects the Burk Drain Farm Area from the intrusion of Rondeau Bay. At the time, rail use of the embankment had ceased, and it was in the process of being formally abandoned for rail use.

88. Mr. Todgham also considered the need for protection of the area of the 1969 Brisco Seawall constructed under the authority of By-law No.: 4716 but recommended against doing anything along this shoreline west of Area A-1.

89. In his reports Mr. Todgham uses elevations by reference to the International Great Lake Datum. That would have been the 1955 version; there is now a 1985 version and there is anticipated a 2020 version. More will be said about reconciling the measurement of elevation starting at paragraph 141 below.

90. All the engineers’ reports since 1973 have given elevations by reference to the IGLD vertical measurements.

91. It is also of note that all three projects recommended by Mr. Todgham qualified for 90% subsidy under a programme administered by the Ministry of Agriculture and Food, Agriculture Rehabilitation and Development Authority (A.R.D.A.) for agricultural purposes.

92. I am going to deal with each of the three project chronologically rather than in numerical order.

By-law No.: 5053 – Todgham’s Area A-2

93. By-law No.: 5053 deals with Area A-2. It was provisionally adopted August 23, 1973 and finally passed January 14, 1974. It adopts an engineering report dated July 23, 1973 issued by Todgham & Case and signed by H.H. Todgham, B.A.Sc., O.L.S., P.Eng.

94. In the engineer’s report, Area A-2 is described as extending east on the lakeshore from Lot 407 registered plan 421 across “McGeachy Pond” to Lot 319, Registered Plan 420, a distance of 4,300 feet. This is a little more than the 4,000 feet referred to in McCubbin’s the 1930 report.

95. In his report Mr. Todgham mentions that the lowest elevation of reclaimed farmland is at 563.0 feet IGLD1955 or 10 feet below the Lake level at that time and that, since September 1972, Lake levels have been at record highs with an all-time high in March 1973.

96. For Area A-2, Mr. Todgham proposed construction of a clay dyke/breakwater in the location of the original piles and wooden seawall and groynes specified by McCubbin in his 1930 report. The clay dyke/breakwater was to have a crest of 581.5 feet IGLD1955 which is said to be approximately 8 feet above then current Lake levels. Average width of dyke at its base is 70 feet and at its crest it is 25 feet wide. Here is what the report says about the proposed works in area A-2:

In general terms, we recommend as protective works for Area A-2, the construction of a clay dyke, some 4300 feet in length, on the approximate line of the original lakeshore dyke. The average width of the dyke at its base will be 70 feet and at its crest 25 feet. The crest elevation will be 581.5’ (IGLD) which is approximately 8 feet above present lake level.

The top and front slope of the clay core will be overlain with a fílter membrane which in turn will be covered with a combination of crushed rock and armour stone.

The front edge, or toe, of the new dyke will follow the line of the old timber headwalls, where these exist. New timber piles will be driven where gaps are present in the existing headwalls. At the extreme east end of the new dyke, existing armour stone will form the toe of the protection. Near this section, there is a considerable amount of armour stone which is at present lying too far offshore to be utilized as toe protection for the proposed dyke. Efforts will be made however to reclaim this rock for use in the new protection works.

On completion of the new dyke we would recommend that the water level in the area of "McGeachy pond" be lowered to reduce hydraulic pressure on the road dykes, and limit seepage, and that the internal slopes of the dykes which contain the pond be regraded and seeded. We also recommend the installation of a culvert from the area of "McGeachy Pond” to the Big Creek Drain. The inlet elevation of this culvert will be at the final required water elevation of the pond. A manually operated valve would regulate flow through this culvert.

97. The 581.5 foot (177.241 metres) IGLD1955 elevation of the top of the clay dyke/breakwater converts to 582.119 feet (177.43 metres ) IGLD1985. The July 2019 Lake level was 175.13 metres (574.573 feet) IGLD1985 as described in paragraph 154 below.

98. This clay dyke/breakwater work incorporates the work referred to in McCubbin’s 1930 report as authorized by By-law No.: 2736.

99. This Area A-2 coincides with the Area A-2 referred to in the 1998 Todgham & Case preliminary Report. The clay dyke/breakwater works in Todgham’s Area A-2 extends from the property of Trevor Dixon (Assessment Roll No.: 03600) easterly to Erieau; it does not include the Trevor Dixon property.

100. The applicants do not provide any evidence that this clay dyke/breakwater in this Area A–2, as it exists today, deviates from the specifications for the works as authorized by By-law No.: 5053.

By-law No.: 5054 – Todgham’s Area A-3

101. By-law No.: 5054 deals with Area A-3. It was provisionally adopted on August 23, 1973 and was finally passed on January 14, 1974. By-law No.: 5054 adopts an engineering report dated July 23, 1973 issued by Todgham & Case and signed by H.H. Todgham, B.A.Sc., O.L.S., P.Eng.

102. Area A-3 deals with approximately 6,000 lineal feet (1,828.8 metres) of the Chesapeake and Ohio Railway embankment from its intersection with County Road No. 12, now Erieau Road, north to its intersection with the Third Concession Drain. About 800 lineal feet (243.84 metres) of dyke on the south side of the Third Concession Drain at its extreme east end is also included in Area A-3. To quote from the engineer’s report, the recommended work is described as follows:

In general terms, the improvements that we recommend for Area A-3 involve the placing of compacted clay fill on the east side of the Chesapeake and Ohio Railway embankment. This fill material will be overlain with a filter membrane, then covered with stone rip-rap. The crest, of the embankment will be protected with a filter membrane and crushed rock.

The new protection will extend to an elevation at its crest of 577.5' (IGLD), which is approximately 4 feet above the present water level in Rondeau Bay.

Where excessive seepage is evident on the downstream slope of the embankment, the existing vegetation will be removed and replaced with a graded stone filter to prevent possible piping or undermining of the embankment, resulting from the seepage.

We recommend that some sections of the south dyke of the 3rd Concession Drain be raised to a height of 577' (IGLD) with a crest width of 10 feet and side slopes of 2 to 1. Imported clay fill would be used for this purpose.

103. Not much more needs be said about this Area A-3 because the applicants are not asserting claims for the non-repair of this part of the Burk Drainage Works.

By-law No.: 5082 – Todgham’s Area A-1

104. By-law No.: 5082 deals with Area A-1. It was provisionally adopted February 11, 1974. The exact date when it was finally passed is unclear but there was a Court of Revision meeting on March 11, 1974 so some time after that. By-law No.: 5082 adopts an engineering report dated November 9, 1973 issued by Todgham & Case and signed by H.H. Todgham, B.A.Sc., O.L.S., P.Eng.

105. Area A-1 is said to be a 1,500 foot (457.2 metre) section of lakeshore embankment adjacent to lots 476, 449, 448 and 447 registered plan 421. The 1998 Todgham & Case preliminary report identifies Area A-1 as being 500 metres between station 3+075 and station 3+575. 500 metres is 1,640 feet so a little more that the 1,500 feet referred to in the November 9, 1973 engineer’s report. This Area A-1 is in the location of the 1948 McCubbin Seawall and the 1949 McCubbin Seawall which has a combined length of 1,800 feet (548.64 metres).

106. The engineer’s report makes the following observations about the then existing conditions:

As a result of high water levels and shore erosion, the water’s edge, at present, is within 35 feet of the road in some places, and is an average distance of 50 feet from the road over the area as a whole. About 30 cottages, many of which have suffered severe storm damage, are located on this stretch of beach.

Existing shoreline protection consists of timber headwalls and groynes, which in places have been capped with concrete. The elevation of the top of the wall varies between 573’ and 575’ (IGLD) and the depth of water in front of the wall is between 2 feet and 5 feet. Behind approximately 550 linear feet of the headwall, rocks, broken concrete or stone-filled gabions have been placed. Concrete slabs have been poured behind about 300 lineal feet of headwall in other locations. Generally, this protection extends only 2 to 3 feet above present water level and is completely submerged in some places. The remaining 600 lineal feet of headwall in Area A-1 has no protection on its landward side and extensive erosion behind the wall has occurred.

Because of the low profile of the existing shore protection, it is found that even moderate wave action tends to over-top the protection, and increase the erosion of the shore. During severe storms, water frequently overtops the Lakeshore Road, and flows into the Lakeshore Drain. Partial washouts have occurred under these conditions and will continue in the absence of protective measures.

Our survey also covered the area immediately west of A-1, as far as Beaver Creek, a distance of 1,100 lineal feet. The timber headwall and groynes here, which were constructed in 1969, are in fairly sound condition, but during storm conditions they do not prevent flooding of the triangular shaped area of low-lying land between the headwall and Lakeshore Road. However, the dyke which carries the road past this area has a crest elevation of 577’ (IGLD) +/- 6” and is not subject to erosive wave action during these flooding conditions. We are not, therefore, recommending improvement of the existing protection in this area at the present time.

East of Area A-1, the Lakeshore Road is protected on its south side by a relatively wide strip of land, at its closest point the pavement is 130 feet from the present water’s edge. It is felt that there is no danger of the road or dyke in this area suffering serious damage as a result of storm conditions on the lake, at least in the foreseeable future.

107. It is to be recalled, from paragraph 97 above, that the water level of the Lake at this time is at an elevation of 573.5 feet IGLD1955. With the elevation of the top of the seawall at between 573 feet and 575 feet IGLD1955, as mentioned in the engineer’s report, the seawall had 18 inches of freeboard at its highest and was awash at its lowest in the A-1 Area. The work authorized in 1949 by By-law No.: 3401 and in 1969 by By-law No.: 4716 calls for an elevation of 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero. As discussed in paragraph 153 below, this engineered specified top elevation of seawall converts to 175.129 metres (574.57 feet) IGLD1985 The seawall authorized by By-law No.: 3375 in 1948 had a top elevation at the shoreline that was six inches (0.1524 metres) lower than the 1949 seawall under By-law No.: 3401.

108. It is observed that the 2013 K. Smart engineer’s report referred to in paragraph 24 above gives the elevation of the Lake in 2013 as 174.33 metres (571.95 feet) presumably based on IGLD1985.

109. The recommended work is the construction of a clay embankment on the north side of the existing Lakeshore Road. The new section of road was to have a pavement elevation of 582 feet IGLD1955, being 4 feet to 5 feet higher than the existing road in the area. The Lakeshore Drain was to be excavated on the north side of new embankment. The south or lakeside slope of the embankment was to be protected from wave action with stone rip-rap placed on a filter membrane. Light-weight steel sheet-piling was to be installed at toe for protection in the event of waves breaking directly on the embankment.

110. This work was done to the north of the cottages along the shore in Area A-1. No work was done on the shoreline between the Lake and the cottages.

111. The applicants do not provide any evidence that this 1974 work in Area A–1, as it exists today, deviates from the specifications for the works as authorized by By-law No.: 5082.

112. It is to be noted that Mr. Todgham initially recommended a different project for Area A-1 in a report dated July 23, 1973. That initial report was referred back to him by the Township Council in the face of strenuous objects from the cottage owners in Area A-1.

113. The original recommendation was the construction of a clay berm/breakwater akin to, but narrower than what was proposed for and constructed in Area A-2. Here is what the July 23, 1973 report proposed about the berm.

The berm will follow the alignment of the existing headwall. It will be approximately 20 feet wide at its base, 8 feet wide at its crest and will be constructed behind the existing headwall, to a height of 581.5’ (IGLD), about 8 feet above present lake level.

The armour stone and rip-rap covering of the berm is standard throughout its length, but the core material will vary depending upon the shore conditions which exist.

Where sand beach exists, a compacted clay core, overlain with a filter membrane, will be used. Rock or broken concrete rubble will form the core where the berm is to be located on similar existing material,

In order to carry out the proposed works, it will be necessary to remove all the buildings located between the Lakeshore Road and the proposed berm. The buildings affected are shown on Drawing No. 73004-A1-1.

The owners of these buildings will be paid allowances for damages to lands and building as shown in Schedule “A” (Schedule of Allowances”).

Prior to commencement of the works, the owners will have the opportunity of removing the buildings from their respective properties.

Buildings which remain in the area of the proposed works at the start of construction will be removed and disposed of as part of the works of the contractor.

114. This berm/breakwater would have been located at the water’s edge just behind the then existing seawall and groynes and between the cottages and the Lake. The cottages in that area would have been removed with the owners being given allowances by way of compensation.

115. This proposal was not acceptable to the affected owners and, at their behest, the Township of Harwich Council directed Mr. Todgham to devise an alternative. His alternative was to abandon protective works on the shoreline and move any works to the north of the cottages to protect the Burk Drainage Works and the Lakeshore Road, but not the cottages.

116. Since this work in the mid-1970’s there have been no “improvements” as that is defined in the Act along the Lake shoreline. The Municipality has undertaken some maintenance of the protective works and has implemented some ad hoc measures from time to time to mitigate conditions in highwater years and severe storm events. This is not to say that maintenance and repair under section 79 of the Act and improvements under section 78 of the Act have not been undertaken in connection with other parts of the Burk Drainage Works it is just that those undertakings are not pertinent to this application.

Status of the 1948 McCubbin Seawall and the 1949 McCubbin Seawall after the Todgham Area A-1 Works

117. Prior to the 1974 Area A-1 work by Mr. Todgham under the authority of By-law No.: 5082, in Area A-1 there was the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 to the east of that 800 feet.

118. As explained above, the initial proposal by Mr. Todgham was to construct a clay dyke/breakwater on the shoreline akin to what was done in Area A-2. Had that been done, it would have incorporated the 1948 and 1949 works and those earlier works authorized under the Act would have been subsumed into the new works and the Municipality’s obligations to maintain and repair in accordance with the earlier specifications for seawalls and groynes would have become its obligations to maintain and repair according to Mr. Todgham specifications for the then proposed clay dyke/breakwater.

119. That, of course, did not happen and the Drainage Act works were moved away from the shoreline to a location behind or north of the buildings on the shoreline properties.

120. So, the question is: did the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082 replace the Municipality’s obligations to maintain and repair in accordance with specifications for the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401?

121. So, as a preliminary matter, I would like to hear the parties as to whether the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 are to be regarded as being abandoned and replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082 or does the Municipality continue to be obliged to maintain and repair in accordance with specifications for the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin/ Seawall authorized under By-law No.: 3401?

122. I note that the appellants’ drainage engineer, John Kuntze, P.Eng., gives an opinion that the 1930 McCubbin seawall and piles in Mr. Todgham’s Area A-2 as well as the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 continue to have status as Drainage Act infrastructure. The engineer makes no mention of and is perhaps unaware of the Todgham work authorized in 1973 by By-law No.: 5053 in Area A-2 to construct a clay dyke/breakwater work incorporating the work referred to in McCubbin’s 1930 report as authorized by By-law No.: 2736. Perhaps he is also unaware of the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082 and its implications for the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401.

123. As preliminary matters the following questions should be addressed:

Does the 1930 McCubbin Seawall as authorized by By-law No.: 2736 have any continuing status under the Drainage Act or has it been subsumed into and been replaced by the Todgham clay dyke/breakwater work authorized in 1973 by By-law No.: 5053 in Area A-2?

Does the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 have any continuing status under the Drainage Act or have they been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082?

No Drainage Act Infrastructure Between Area A-1 and Area A-2

124. There is no Drainage Act authorized infrastructure, such as berms, dykes, seawalls or groynes, on the Lake shoreline between Todgham’s Area A-1 on the west and Area A-2 to the east. Presently there are many private shoreline protection measures installed along this stretch of Lake shoreline between Todgham’s Area A-1 on the west and his Area A-2 to the east. The Municipality has no obligation under the Drainage Act for such privately installed features.

125. That length of shoreline without Drainage Act infrastructure extends from Assessment Roll No.: 03600 (Trevor Dixon) on the east to Assessment Roll No.: 14500 (James Allen) on the west; the James Allen property is a few properties east of Area A-1. The properties between these two Assessment Roll Nos. include the properties of a majority of the applicants.

126. As a preliminary matter, the following question needs to be answered:

Should the claims of those applicants who are the owners of properties from Assessment Roll No.: 03600 (Trevor Dixon) on the east to Assessment Roll No.: 14500 (James Allen) on the west be dismissed on the grounds that there is no Drainage Act infrastructure on the Lake Erie shoreline of those properties for which the Municipality has any obligation for maintenance and repair under section 74 of the Act or liability under section 79 of the Act for not doing so?

Observations about Assessments

127. The following is an extract from page 5 of the 1998 Todgham & Case preliminary Report

Under reports prepared under the provisions of The Drainage Act in 1930, 1946, 1947, 1948, 1951, and 1968, wooden seawalls and wooden groynes were constructed along the shoreline of Lake Erie opposite the length of the Lakeshore Drain abutting the Dyke road. The construction of the wooden seawalls and groynes was carried out primarily to protect the Burk Drainage Works and, except for the 1968 report, the entire cost of the seawall and groyne construction projects were assessed against lands within the Burk Drainage Works with no assessment being made against residential lots along the shore of Lake Erie which lie between the Dyke Road and the water’s edge. The only exception to this is the 1968 report where an estimated $11,500 out of $68,000 total assessment was levied upon 23 residential lots with the remaining $56,500 estimated assessment being levied against lands within the Burk Drain Farm Area. The 23 residential lots assessed for the seawall and groyne construction of 1968 are located in Concession 4, W.C.R., Registered Plan 421, Part of Lots 455, 4678 (sic) to 470, and 472 to 476. This is a triangular area of land bounded by the Dyke Road and Lake Erie near the westerly limit of the study area between Station 3+575 and Station 3+900 on Figure 1.

128. In the 1973 Todgham engineer’s report for Area A-1 that was adopted by By-law No.: 5082, the properties behind (i.e. to the north of) Area A-1 are lots 446, 447, 448, 449, registered plan 421 WCR. None of these properties are assessed for the work proposed in the 1973 report.

129. Todgham & Case issued a report on October 15, 1986 which was prepared under the authority of section 76 of the Act. Its purpose was to revisit and revise assessment schedule for the maintenance of the Burk Drainage Works. This engineer’s report was provisionally adopted by By-law No.: D-102/87 on November 24, 1986 and finally enacted by third reading on April 13, 1987. This maintenance assessment schedule did not include any property behind (i.e. to the north of) Area A-1 or any of the properties in the triangle of properties assessed under the 1968 Brisco engineer’s report. About 20 non-agricultural lots on the east side of Bisnett Line (formerly Clark Sideroad) north of Lakeshore Road (now Erie Shore Drive) and three on the north side of Lakeshore Road just east of Bisnett Line are assessed for maintenance.

130. The 2013 K. Smart engineer’s report, referred to in paragraph 24 above, provides the assessment schedule for maintenance of the Burk Drainage Works. That 2013 engineer’s report focused on the pumping station at the northeast corner of the Burk Drain Farm Area and its internal drains and made no reference to shoreline protection drainage works. The assessment schedule for maintenance of the Burk Drainage Works appears to be consistent with 1986 Todgham & Case assessment schedule.

Official Plan and Zoning

131. Most of properties along the lakeshore are designated Agricultural by the Chatham-Kent Official Plan land use map with a Flood-Prone overlay on the Official Plan Schedule of Natural Heritage & Hazard Features. The exception is the triangular area behind the 1969 Brisco Seawall and groynes to the west of Todgham’s Area A-1. That triangular area is designated Recreational Residential and has no Flood-Prone overlay.

132. As for Zoning, most of the properties along the lakeshore are zoned “Deferred Development”, including the triangle of land designated Recreational Residential. That said, a few, perhaps a dozen, of these lakeshore properties have special Recreational and Lake Residential (RLR) site-specific Zoning Exceptions – from west to east they are: RLR-13, RLR-12, RLR-96. RLR-848. RLR-67, RLR-25. The Deferred Development zoning permits existing uses, buildings and structures with limited opportunities for change where there are Official Plan requirements and limitations associated with the Flood-Prone overlay.

133. The land in the Burk Drain Farm Area is zoned Agricultural (A1) apart from a farm (assessment Roll No.: 365014000855800) in the northeast quadrant of the intersection of Bisnett Line and Erieau Road which is has a holding Zoning Exception H-A1-1081 in the A1 zone. This exception contemplates 26 wind turbines as an additional permitted use subject to satisfying a number of preconditions before the holding symbol can be removed.

134. The Municipality’s Comprehensive Zoning By-law No.: 216-2009 refers to the Canadian Geodetic Datum (“CGD”) as the basis for building and structure siting regulations by reference to a Lake Erie “still water” level of 175.26 metres CGD. Canadian Geodetic Datum is undefined in the Zoning By-law. There are two versions of the Canadian Geodetic Vertical Datum. Initially, there was Canadian Geodetic Vertical Datum of 1928 (CFVD28) and now the updated Canadian Geodetic Vertical Datum of 2013 (CFVD2013) is being used. As mentioned, the Municipality’s Comprehensive Zoning By-law identifies the “still water” level of Lake Erie at 175.26 metres CGD. Presumably the Zoning By-law is referring to CGVD28 as CGVD2013 would not have been established when the zoning by-law was enacted in 2009. More will be said about this commencing with paragraph 141 below.

135. By reference to the conversion table found in paragraph 149 below, the assumed “still water” elevation of the Lake at 175.26 metres CGVD28 is now measured as 174.772 metres CGVD2013 and is now measured as 175.255 metres IGLD1985.

136. By comparison, the actual monthly mean water level of Lake Erie in 2019 ranged from 175.14 metres IGLD1985 in June to 174.61 metres IGLD1985 in February. The actual monthly mean water level of Lake Erie in 2020 ranged from 175.8 metres IGLD1985 in June to 174.65 metres IGLD1985 in November and December. The low water chart datum for Lake Erie is 173. 5 metres IGLD1985.

Lower Thames Valley Conservation Authority

137. In addition to zoning regulations, the shoreline area of Erie Shores Drive is subject to the jurisdiction and authority of the Lower Thames Valley Conservation Authority (the “Conservation Authority”) under the Conservation Authority Act and its regulations.

138. The installation of any shoreline protection measures, under the Drainage Act or otherwise, must be approved by the Conservation Authority. Similarly, any building construction, renovation or repair must be permitted by the Conservation Authority.

139. The Conservation Authority has regulations and guidelines which must be complied with as part of the Conservation Authority’s application and permitting process. This includes avoidance of and mitigation measures in areas prone to erosion, areas of slope instability and wave uprush zones. Generally, it appears that most shoreline protection and renovation and repair projects are being accommodated within the Conservation Authority regulatory framework. New development is prohibited in these erosion prone and wave uprush areas.

140. The Conservation Authority was given notice of this proceeding and an opportunity to be a party. The Conservation Authority has chosen not to be involved.

Elevations

141. In a number of instances in these reasons I have provided elevations from engineers’ reports and have converted them to IGLD1985 and some explanation is required.

142. The reason I have used the IGLD1985 vertical measurement regime is that current Lake levels are published using IGLD1985 information. In order for me to understand damage attributable to non-repair of Drainage Act infrastructure, it is important for me to know how much 2019, 2020 and 2021 Lake levels are below, or above, the specification height of the seawalls and groynes in Todgham’s Area A-1 and of the 1969 Brisco Seawall and groynes to the west of that Area A-1.

143. In the cases the seawalls specified in the 1949 McCubbin report for the seawall and groynes in Todgham’s Area A-1 and in the 1969 Brisco report for the seawall and groynes to the west of that Area A-1, they were to be “finished to elevation 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero”. In the case of the 1948 McCubbin report for the 800-feet of seawall at the west end of Todgham’s Area A-1, the specified height at the shoreline was six inches lower.

144. As previously explained, early benchmarks for elevations in the 1930’s were such things as “the top of the concrete cap of the parapet wall on the easterly side of the front steps of the McGeachy cottage (14.95 feet)” and “the top of the wood cap at the centre of Pere Marquette Railway Bridge at the Third Concession Road (12.25 feet)”. Then, for the 1948 McCubbin Seawall, the 1949 McCubbin Seawall and the 1969 Brisco Seawall, elevations were related to the Dominion Public Works gauge at Erieau. From 1973/74 Todgham reports and onward, elevations were given by reference to IGLD. That would have been the 1955 version; there is now a 1985 version and there is anticipated a 2020 version. For reasons previously provided, it is the currently official IGLD1985 that I have decided to use.

145. These IGLD units of vertical measurement are used principally for navigation in the St. Lawrence Seaway and the Great Lakes; for navigational safety, depths on a chart are shown from a low-water surface or a low-water datum called chart datum. Chart datum is selected so that the water level will seldom fall below it and only rarely will there be less depth available than what is portrayed on the chart. The IGLD1955 low water datum for Lake Erie is 173.3 metres or 568.570 feet. The IGLD1985 low water datum for Lake Erie is 173.5 metres or 569.226 feet.

146. As mentioned, the Municipality’s Comprehensive Zoning By-law No.: 216-2009 refers to the Canadian Geodetic Datum (“CGD”) as the basis for building and structure siting regulations by reference to a Lake Erie “still water” level of 175.26 metres CGD. Canadian Geodetic Datum is undefined in the Zoning By-law.

147. As mentioned, the IGLD1985 vertical measurement regime is for use for navigation in the St. Lawrence Seaway and the Great Lake and uses a sea level elevation calculated based on a gauge in the St. Lawrence River; whereas the Canadian Geodetic Vertical Datum is for the whole country and uses a base elevation established for Canada using mean sea levels measured at and calculated from tide gauges in locations on each of the Atlantic Pacific and Artic Ocean coasts of Canada.

148. Initially, there was Canadian Geodetic Vertical Datum of 1928 (CGVD28) and now the updated Canadian Geodetic Vertical Datum of 2013 (CGVD2013) is being used. The Municipality’s Comprehensive Zoning By-law identifies the “still water” level of Lake Erie at 175.26 metres CGD. Presumably the Zoning by-law is referring to CGVD28 as CGVD2013 would not have been established when the zoning by-law was enacted in 2009. By reference to the conversions set out in paragraph 149 below, the CGVD2013 vertical measurements are reported as being 0.483 metres lower than the equivalent measurement for CGVD28 so the “still water” level of Lake Erie at 175.26 metres CGVD28 is now reported as elevation 174.777 metres CGVD2013; the same elevation is also reported as 175.265 metres IGLD1985.

149. The following table gives the heights for the Dominion Public Works gauge benchmark (58U9505) at Erieau

(a) IGLD (1955) - 175.171 metres dynamic height (574.708 feet)

Add 0.189 metres to convert to equivalent IGLD1985;

(b) IGLD (1985) - 175.360 metres dynamic height (575.328 feet);

(c) CGVD28 - 175.355 metres normal orthometric height (575.312feet)

Add 0.005 metres to convert to equivalent IGLD1985;

(d) CGVD2013 - 174.872 metres (epoch 2010.0) orthometric height (573.727feet)

Add 0.488 metres to convert to equivalent IGLD1985;

(e) IGLD (2020) - 174.818 metres (epoch 2010.0) dynamic height (373.550 feet)

Add 0.542 metres to convert to equivalent IGLD1985.

150. The location of the Dominion Public Works is the concrete base of mooring bollard on property of the Lake Erie Navigation Co. Ltd. and was established by the Canadian Hydrographic Service. Physically it is a bronze tablet (disk) stamped with H.S. 2-1958. The elevations given in paragraph 149 above are for the same physical elevation of the disk so, using the table, the elevations given for each of the vertical reference regimes can be converted to the other vertical reference systems. This conversion can be applied with accuracy for locations within 50 nautical miles of Erieau.

151. The Erieau disk is on the deck of the dock above water. It is given here to establish a common vertical reference for comparison of the alternative vertical elevation regimes. Associated with the Erieau disk is a gauge which measures water levels at that location relative to the low water chart datum which for Lake Erie is 173.5 metres (569.23feet) IGLD1985. At the Erieau gauge, High Water is 1.39 metres (4.56 feet) above chart datum and Low Water level is 0.11 metres (0.36 feet or 4.3 inches) above chart datum.

152. I assume that, when the engineers have referred to “elevation 570.5 feet (173.888 m) when the Lake surface at the Dominion Public Works gauge at Erieau registers zero”, they are referring to the low water level at the Erieau gauge. By reference to IGLD1985 that is the equivalent of chart datum at 173.5 metres plus 0.11 metres or 173.61 metres (569.57 feet) IGLD1985.

153. For the 1949 McCubbin Seawall and the 1969 Brisco seawall the specification is that “The sheet pilings shall be driven to the full depth specified and finished to elevation 575.5 or 5 feet above the Lake surface when the Dominion Public Works gauge at Erieau registers zero.” If zero is 173.61 metres (569.57 feet) IGLD1985, then adding five feet yields an engineer specified top elevation of 175.129 metres (574.57 feet) IGLD1985. Again, it is to be recalled that the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 had a top elevation at the shore that six inches (0.152 metres) lower than the 1,000 feet of 1949 McCubbin Seawall under By-law No.: 3401.

154. These elevations then need to be read with Lake levels IGLD1985 as published by the Canadian Department of Fisheries and Oceans (“DFO”). For the summer of 2019, DFO reported the mean monthly Lakewide average water levels as follows:

(a) May 2019 – 175.05 metres (IGLD1985)

Being 0.079 metres (3.110 inches) below the seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(b) June 2019 – 175.14 metres (IGLD1985)

Being 0.011 metres (0.433 inches) above the seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(c) July 2019 – 175.13 metres (IGLD1985)

Being 0.010 metres (0.394 inches) above the seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(d) August 2019 – 175.02 metres (IGLD1985)

Being 0.109 metres (4.291 inches) below the seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(e) September 2019 – 174.87 metres (IGLD1985)

Being 0.259 metres (10.197 inches) below the seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

For the summer of 2020, DFO reported the mean monthly Lakewide average water levels as follow:

(a) May 2020 – 175.08 metres (IGLD1985)

Being 0.049 metres (1.929 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(b) June 2020 – 175.1 metres (IGLD1985)

Being 0.029 metres (1.147 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(c) July 2020 – 175.05 metres (IGLD1985)

Being 0.079 metres (3.110 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(d) August 2020 – 174.93 metres (IGLD1985)

Being 0.199 metres (7.835inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(e) September 2020 – 174.83 metres (IGLD1985)

Being 0.299 metres (11.772 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

For the summer of 2021, DFO reported the mean monthly Lakewide average water levels as follow:

(a) May 2021 – 174.68 metres (IGLD1985)

Being 0.449 metres (17.677 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(b) June 2021 – 174.71 metres (IGLD1985)

Being 0.419 metres (16.496 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(c) July 2021 – 174.81 metres (IGLD1985)

Being 0.319 metres (12.559 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(d) August 2021 – 174.79 metres (IGLD1985)

Being 0.339 metres (13.346 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

(e) September 2021 – 174.67 metres (IGLD1985)

Being 0.459 metres (18.071 inches) below seawall specified height for the 1949 McCubbin Seawall and the 1969 Brisco Seawall

155. Again, it is to be recalled that the 1948 McCubbin Seawall authorized by By-law No.: 3375 had a top elevation at the shoreline that was six inches (0.152 metres) lower than the 1949 McCubbin Seawall under By-law No.: 3401 and the 1969 Brisco Seawall.

156. The DFO historical mean monthly Lakewide average water levels, given by reference to IGLD1985, go back to 1918.

157. These monthly published water levels do not take into account wave action and wave uprush in severe storms nor do they take into account seiches. Seiches are caused when strong winds and rapid changes in atmospheric pressure push water from one end of a body of water to the other. When the wind stops, the water rebounds to the other side. The water then continues to oscillate back and forth for hours or even days. Lake Erie is known for seiches, changing water levels by as much as metres, especially when strong winds blow from southwest to northeast.

Applicants’ Notice under Section 79 of the Act

158. The applicants base their case on sections 74 and 79 of the Act. Those sections are set out in full in paragraph 39 above and need not be repeated here.

159. By letter dated September 1, 2020 the applicants gave to the Municipality the 45-day notice contemplated in section 79 of the Act. Assuming the letter was delivered on September 1, 2020, the 45-day period expired on October 15, 2020.

160. The notice letter itself raises a number of questions but, before getting to them as I will below, I wish to review the scheme of the Drainage Act as it relates to the maintenance and repair of municipal drains and a municipality’s responsibility to maintain and repair drains and the municipality’s liability for not doing so. I believe this review will have a bearing upon a purposive interpretation of the liability section of the Drainage Act, being section 79.

161. Maintenance and repair entails putting the drain in the condition established by the most recent engineer’s report on the drain. An engineer need not be involved with maintenance and repair. The most recent engineer’s report has established what is required and it is up to the municipality to keep it that way; and, under the Drainage Act, a municipality has the right and authority to restore the drain if it has become out of repair. Maintenance and repair work is overseen by the municipality’s Drainage Superintendent, who may be but is most usually not an engineer.

162. The cost of maintaining and repairing a drain is assessed to the owners of the lands using the drain. The engineer’s report includes an assessment schedule according to which the maintenance and repair costs are shared. Older engineer’s reports have only one assessment schedule which is used for both the cost of the construction of the drain and the expense of its subsequent maintenance and repair; more recent engineer’s report include two separate schedules, one for the assessment of construction costs and the other for the assessment of future maintenance and repair costs.

163. The municipality is the administrator of the Drainage Act and is not the ultimate payor for the costs of maintaining and repairing drains; those who use the drain pay the costs of maintaining and repairing drains.

164. Some municipalities have a drain maintenance programme the goal of which is to have every drain in the municipality looked at and brought into repair every ten years or so. That said, many municipalities simply leave the frequency of drain maintenance to the owners who use and rely upon the drain. Oft times the owners are content to manage with a less than perfect drain in preference to being assessed on a routine basis for the costs of maintenance and repair. The Drainage Act countenances that approach but also provides a mechanism for owners who need the drain to operate properly to get the drain restored to the condition prescribed by the most recent engineer’s report. Those owners have the right to require a drain to be repaired simply by asking. Often this happens verbally between the owner and the Drainage Superintendent who rectifies the problem. While such an informal approach is common, when necessary, the owner can give a formal notice under section 79 of the Drainage Act and, once a municipality has been given such a notice/demand, the municipality must respond or face potential liability for damages arising from the non-repair under section 79 of the Drainage Act.

165. Later in these reasons more will be said about liability for non-repair after notice, but the point here is that the scheme of the Act is such that a municipality is not to be faulted, in the absence of a request for maintenance and repair, for doing little or nothing to keep a municipal drain in good repair after it has been constructed.

166. If the drain is restored to the condition prescribed in the most recent engineer’s report and, despite that, a drainage problem persists, the municipality may but is under no obligation to initiate an improvement of the drain by appointing an engineer under section 78 of the Drainage Act. A section 78 improvement may also be initiated upon the request of the owner of any land which is served by the drain. Upon receiving such a section 78 request, the Municipality is to appoint an engineer to investigate and to prescribe an improvement to the drain which will address the persisting drainage problem. If an improvement as authorized by section 78 does not rectify the persisting drainage problem, it may be necessary to petition for a new drainage works. In the meantime, the municipality is not liable for damages which may arise from the persisting drainage problem so long as the drain is maintained in good repair as specified in the most recent engineer’s report on the drain.

167. In this case the Municipality has already initiated an improvement process under section 78 of the Drainage Act as described in paragraphs 30 to 33 above. This case in the court of the Drainage Referee is not about a section 78 improvement but rather deals with the maintenance and repair of drainage works under section 79 of the Drainage Act. As mentioned, that section has been reproduced in in paragraph 39 above.

168. The essence of subsections 79(1) and 79(2) is that a municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been given the 45-day notice specified in subsection 79(1). The applicants’ damages claims in this case indicate that they think that section 79 is to be interpreted such that, once the 45 days’ notice has been given and the 45 days has expired, then the Municipality is liable for all damages, whenever caused, that can be attributable to the non-repair of the drainage works. I disagree. Counsel will need to provide convincing jurisprudence and statutory authority to persuade me to the contrary.

169. Under the Drainage Act the municipality that is responsible for maintaining and repairing a drain is not liable for non-repair unless and until notice is given. The applicants place singular emphasis on the Municipality’s obligations under section 74 of the Act. But that section cannot be read alone; it must be read with section 79 which requires a 45-day notice to be given before the Municipality becomes liable for non-repair. Once the notice is given, the Drainage Act gives the municipality a 45-day grace period within which to repair the drain or to otherwise mitigate any damage arising from the non-repair; the municipality is only liable for damages arising after the grace period.

170. The applicants imply that the Municipality has been derelict in its duties under section 74 the Drainage Act for not being more proactive, before the section 79 notice in September 2020, in maintaining and repairing the drainage works along the Lake Erie shoreline and that liability to the applicants should flow as a result. Again, I disagree. The Municipality has no liability under the Act for non-repair of the Burk Drainage Works until they have the section 79 notice and 45 days to attempt to address it or to mitigate the consequences. And again, counsel will need convincing jurisprudence and statutory authority to persuade me to the contrary.

171. The 45 days is an arbitrary period that is applied to all situations regardless of the nature and extent of the maintenance and repair. In many instances the 45-day grace period is sufficient for the Drainage Superintendent to arrange for the repair of the drain. As often the 45 days is not sufficient to complete the repair work or implement mitigating measures. There may be valid reasons why the 45 days is not sufficient. The question of reasonableness of time to effect a repair after the giving of 45 days’ notice under subsection 79(1) of the Drainage Act and the reasonableness of a municipality’s conduct about 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 in accordance with subsection 118(1) of the Drainage Act or the municipality pays out of general funds as contemplated by subsection 118(2) of the Drainage Act. The injuriously affected land owner is entitled to damages if the damages are attributable to the non-repair after the 45-day grace period; 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 occurring from and after the expiration of the 45 day grace period.

172. The section 79 notice was given by the applicants on September 1, 2020 so the 45-day grace period expired on October 15, 2020.

Damages Principles

173. I turn now to issues related to damages. A first principle is that, to be eligible for recovery, the damages resulting from inundations by the Lake of the applicants’ properties must not have already occurred prior to October 15, 2020. This includes both money paid before October 15, 2020 as well as costs incurred and expenditures made after October 15, 2020 to deal with damage caused by the inundation of the applicants’ properties before October 15, 2020. This principle is grounded on the foundation that the Municipality has no liability until the 45-day notice has been given and the 45-day grace period has expired; if counsel convinces me to deviate from that proposition, then this damages principle will need to be revisited.

174. It appears that the bulk of the applicants’ damages claims are for things which pre-date October 15, 2020 and/or relate to damage which had already occurred before October 15, 2020. I am concerned that the Municipality is not put the effort and expense of responding to damages claims which are not recoverable. So, as a preliminary matter, I wish to hear the parties about what damage claims are eligible to be pursued and those to which the Municipality need not respond. Those submissions should be made in connection with the preliminary issue question in clause 3(d) of the Order; and it is in that context that submissions should be made about the prerequisite of a 45-day notice under section 79 for the Municipality to be liable for non-repair and the eligibility for recovery of damages arising before the expiration of the 45-day grace period.

175. Another principle is that, to be eligible for recovery, the damages must be such that they would not otherwise have occurred if the drainage works had been in good repair to the specifications of the most recent engineer’s specifications. It seems elementary that there needs to be a causal connection between the non-repair of a component of the Burk Drainage Works and damages arising because of the non-repair. Again, counsel will need convincing authority to persuade me to the contrary when addressing the preliminary question in clause 3(d) of the Order.

176. By way of example, this causation principle will present evidentiary challenges with respect to on-shore damage claims related to the 1969 Brisco Seawall which is in the order of a foot (30.5 centimetres) out of current Lake water levels in calm conditions. The damages question would be some variation on:

What physical injury or harm to property has occurred after October 15, 2020 (i) which is additional to any injury or harm that had already occurred prior to October 15, 2020 and (ii) which would not have occurred if the 1969 Brisco Seawall works authorized by By-law No.: 4716 were present to the engineer specified top elevation of 175.129 metres (574.57 feet) IGLD1985?

177. As a preliminary matter, as set out in clause 3(d) of the Order, the following question needs to be addressed:

Are the applicants’ damages claims limited to physical injury or harm to property that has occurred after October 15, 2020 (i) which are additional to any injury or harm that had already occurred prior to October 15, 2020 and (ii) which would not have occurred if Drainage Act authorized infrastructure were present and in good repair as specified in the most recent applicable engineer’s report?

178. Mitigation is also an issue for both the applicants and the Municipality. Mitigation measures will need to be examined in more detail in due course, particularly after the Municipality has put in its evidence.

Efficacy of the Section 79 Notice

179. I now turn to the effect of the September 1, 2020 letter giving the Municipality notice under section 79 of the Act. Subsection 79(1) says that the notice may be given by “any person affected by the condition of a drainage works”. And subsection 79(2) requires the notice to describe “with reasonable certainty the alleged lack of maintenance and repair of the drainage works.”

180. The Notice letter, given by a solicitor, does not identify on whose behalf the letter is sent nor is there any particularly about the alleged lack of maintenance and repair of the Burk Drainage Works (referred to in the Notice letter as the Burk Drainage System). Certainly, the names of the applicants appeared when the application was launched (who may or may not have been clients at the time of the September 1^st notice letter) but, even with the voluminous 75 affidavits filed in support of the application, including one from a qualified drainage engineer, there is no indication of how the applicants say any of the Burk Drainage Works along the Lake shoreline deviate from the specifications of the most recent applicable engineers’ reports or what specifically the applicants say the Municipality is obliged to do or not do under the Act.

181. The sufficiency of the September 1, 2020 notice letter as notice under section 79 of the Act needs to be considered as the preliminary issue question as set out in clause 3(e) of the Order. In argument about the clause 3(e) preliminary question, I wish to hear counsels’ submission about whether the shortcomings in particularity of “alleged lack of maintenance and repair” in a section 79 notice can be cured by subsequent elaboration and, if yes, whether the application and applicants’ supporting affidavits are sufficient to cure any deficiency. And, if shortcomings in particularity of “alleged lack of maintenance and repair” in a section 79 notice can be cured by subsequent elaboration, when does the 45-day grace period expire relative to when sufficient elaboration is provided to the Municipality.

182. Regardless of the answer to the question in clause 3(e) of the Order, I am troubled by clause 1(a) of the application which seeks an Order from the Referee under section 79 of the Act requiring the Municipality “to maintain and repair the Burk Drain system”. Quite simply, such a nebulous and ill-defined order will not be issued. It will be much further along in the process of this application that any compulsory Order will be considered, but, if we get there, my expectation is that, in most cases, any maintenance and repair Order made by the Referee under section 79 of the Act would have reference to engineer-authored specifications from or based on the most recent engineer’s report on a drain or the relevant part thereof and that the Order be capable of being certified as complete, when it is, by an engineer appointed for the purpose.

Dated at London this April 24, 2022.

____________________________________ Andrew C. Wright Acting Drainage Referee