ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
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 ) FRIDAY, THE 25th DAY ) OF NOVEMBER 2022 )
ORDER
The Court of the Drainage Referee heard, on November 25, 2022, submissions from counsel for the parties with respect to the respondent Municipality’s motion to dismiss the applicants’ damages claims and, for the reasons that follow:
THIS COURT ORDERS that
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.
This Order is supplementary to the December 3, 2021 Order issued on that date, the February 2, 2022 Order issued on that date, the April 24, 2022 Order issued on that date, and the October 4, 2022 Order issued on October 12, 2022, all 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.
Dismissal of Municipality’s Motion to Dismiss
- The Municipality’s October 28, 2022 motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act is dismissed for the reasons that commence on page 13, below.
April 24, 2022 Preliminary Issues
- The preliminary issues set out in the April 24, 2022 Order remain outstanding and will be addressed in future hearings; those preliminary issues questions are as follows:
(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 Allin) 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
- 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 12 below as well as the viva voce evidence given by witnesses. As well, the parties have exchanged facta as referred to in the Exhibit List.
Evidence for Preliminary Issues
- The order in which evidence will be given at the hearing of the preliminary issues will be as follows:
(a) The applicants have called their witnesses with respect to the preliminary issues on October 4, 2022 and their evidence was completed that day;
(b) The Municipality will call their witnesses starting on December 9, 2022; those witnesses will give evidence based on their affidavits by reaffirming or correcting their affidavits and then they will 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.
Final submission by the parties will proceed in the same order as specified in paragraph 6 above.
A party who has provided a supplementary affidavit with respect to the preliminary issue questions 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
- Future case management video conferences will be scheduled to address:
(a) Scheduling the delivery of the respondent Municipality’s responding affidavits.
(b) Scheduling the delivery of the applicants’ reply affidavits.
(c) Considering whether to phase the hearing of the merits and identifying issues for the hearing of the merits or for the next phase of the hearing.
(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
- 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
- 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 11(d) above applies mutatis mutandis.
- 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.: 18
Curriculum Vitae and Acknowledgement of Expert’s Duty of John Kuntze, P.Eng.
No.: 19
Affidavit of Trevor Dixon sworn March 4, 2022, including five Exhibits A through F
Applicants’ Recusal Motion – Notice of Motion dated August 30, 2022
Applicants’ Recusal Motion – Moving Party’s Factum dated August 30, 2022
No.: 20
Affidavit of Terra Cadeau sworn September 16, 2022, including twelve Exhibits A through L
No.: 21
Affidavit of John Kuntze, P.Eng. sworn September 16, 2022, including Exhibit A
No.: 22
Affidavit of John Kuntze, P.Eng. sworn September 16, 2022, including Exhibit A
Applicants’ Factum dated September 30, 2022, with respect to the five preliminary issue questions
Respondent Municipality’s Factum dated November 18, 2022, with respect to the five preliminary issue questions
No.: 23
Affidavit of Tim Dick sworn September 15, 2022, including 35 Exhibits A through II with Exhibit C being drone video footage of the shoreline.
No.: 24
Affidavit of Mike DeVos, P.Eng. sworn September 16, 2022, including three Exhibits A through C
No.: 25
Memorandum dated August 15, 2019 from John Kuntze, P.Eng. to Murray Spencer an Sean Panjer regarding Erie Shore Drive lakefront properties – Municipality of Chatham-Kent Shoreline protection and the Drainage Act
No.: 26
Extracts from the Erie Shore Drive Property Owners Association website put to the witness Cadeau during her cross-examination on October 4, 2022
Order dated October 4, 2022 issued October 12, 2022 by Andrew Wright, Acting Drainage Referee, dismissing the applicants’ recusal motion and providing direction about the Municipality’s proposed motion to dismiss the application and, if that motion were to be unsuccessful, to continue dealing with the preliminary issues questions
No.: 27
Municipality’s October 28, 2022 Motion Record for the Municipality’s motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act
Municipality’s October 28, 2022 Factum in connection with the Municipality’s motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act
Municipality’s Book of Authorities provided in connection with the Municipality’s motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act
Applicants’ November 18, 2022 Factum in response to the Municipality’s motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act
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.
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.
If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 12 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
- 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.
For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.
Costs of the day are reserved to the final disposition of this matter.
Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.
Dated at London this November 30, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
The Order to which these reasons are attached is an evolving case management and procedural Order which is a consolidation of previously issued procedural Orders and includes currently operable provisions and eliminates those matters which have been completed or are no longer necessary. Occasionally, as circumstances require, the evolving editions of the Order also deal with motions brought by the parties in advance of the hearing of the merits; once disposed of, the disposition of such motions is not thereafter included.
The principal purpose of this Order is to deal with the Municipality’s October 28, 2022 motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act.
The Municipality’s motion was prompted by the Municipality’s consideration of preliminary issue question 3(d). That question is:
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?
The Municipality’s motion examines subsection 79(1) of the Act and notes that a municipality’s liability depends upon a “person being affected by the condition of a drainage works”, upon that person giving sufficient notice of the condition and, then, after a 45-day grace period, the municipality is “liable in damages to the owner whose property is so injuriously affected”.
The Municipality’s submission is that “injurious affection” is a term of art in the law and the liability established by subsection 79(1) must be understood and interpreted in accordance with the large body of law surrounding the concept of “injurious affection”. The Municipality argues that “injuriously affected” has the same meaning as “injurious affection”; any distinction is semantic without substantive difference.
The Municipality acknowledges that the Drainage Act supplants and replaces the common law as it relates to drainage matters but submits that the statutory cause of action created by section 79, when creating municipal liability “in damages to the owner whose property is so injuriously affected”, refers to and incorporates into the statutory cause of action the concept of “injurious affection” as that term is understood in the body of common law that goes with it.
The following summary of the Municipality’s submissions does not do justice to the extensive and well considered submissions. Those submissions included reference to a number of judicial and referee decisions and were accompanied by, amongst other things, the Report of the Ontario Law Reform Commission, the Basis for Compensation on Expropriation, 1967 in its entirety; the Final Report of the Select Committee on Land Drainage dated June 1974 in its entirety; A History of Drainage Statutes of Ontario (1835 – 1973) by Professor Weinrib; and all decisions from the Williams v Township of Raleigh case dealing with the Government Drain Number One and the Bell Drain, starting with the Report and Findings of the Special Referee, Archibald Bell on February 20, 1890; the decision of Ferguson J delivered on September 4, 1890; the decision of the Ontario Court of Appeal delivered on June 30, 1891; the decision of the Supreme Court of Canada issued on June 28, 1892 and finally the August 3, 1893 decision of the Judicial Committee of the Privy Council – which endorsed the statutory authority defense with respect to the Bell Drain but referred back to the Referee the damages issue related to the non-repair of Government Drain Number One, notwithstanding that the Referee had that reported and found in 1890 that:
in times of very high water in the River Thames, the water therefrom was backed up Number One Drain, or has risen so high as to preview the water escaping therefrom and has thereby caused the water to overflow the said embankment, but I find that the defendants are not responsible for any damages or injury so caused, inasmuch as it would have taken place had said drain and embankment been properly constructed and maintain, and I award no damages for any injury so caused.
The Municipality’s submissions begin with a review of the legal history of “injurious affection”. The starting point is that, at common law, interference with enjoyment of another’s property give a prima facie right of action; however, at common law, legislation that authorizes and renders legal public works takes away the right of action that otherwise would have arisen, with compensation only being allowed when provided for by the statute in the manner prescribed by the statute.
In connection with drainage works, historically, provision for compensation was through The Municipal Act until the advent of the Expropriations Act 1962-63. The Expropriations Act was the product of the work of the Law Reform Commission. The Municipality’s submissions include a commentary on some of the Commission’s observations, including one that a remedy for injurious affection is not, strictly speaking, a matter of compensation for expropriated property. It is really a question of tort law and of the intersection of the nuisance concept with defences of statutory authority and the immunity of the Crown and owes its existence to the expropriating statute. The Commission commented that there were four conditions which applied to the remedy of injurious affection:
a. Damage must result from an act rendered lawful by the statutory powers of the authority.
b. The damage must be such as would have been actionable at common law, but for the statutory authority.
c. The damage must be an injury to the land itself and not a personal injury or an injury to business or trade.
d. The damage must be occasioned by the construction of the public work and not its user.
Many of the recommendations of the Law Reform Commission found their way into The Expropriations Act 1962-63. The Drainage Act 1962-63 and The Expropriation Procedures Act 1962-63 were both enacted at the same session of the Legislature. The Expropriation Procedures Act 1962-63 was said to apply notwithstanding any general or specific Act. Though not initially excluded, following the decision in the case of McKenzie v Dover Township, 1965 CanLII 154 (ON HCJ), [1965] 1 O.R. 688, by April 1965 The Expropriation Procedures Act was amended to specifically exclude application to The Drainage Act 1962-63. Subsection 1(3) of the current Expropriations Act excludes its application to the current version of the Drainage Act so, for example, allowances by way of compensation for easements for drainage works and working corridors and damages for injurious affection attributable to non-repair of drainage works are to be found entirely within the Drainage Act or not at all. Notwithstanding this exclusion, the Municipality submits that, “injurious affection” for the purposes of the Drainage Act remains imbued with the meaning of the legal term of art as reflected in the Law Reform Commissions’ conditions which apply to the remedy of injurious affection.
The Municipality’s conclusion after this extensive analysis is that, for the purposes of the Drainage Act, the requirements to establish injurious affection are at least
a. Damage must result from an act rendered lawful by the statutory powers of the authority;
b. The damage must be such as would have been actionable at common law, but for the statutory powers
The Municipality then says that the applicants have no common law claim in nuisance. In an action for private nuisance, the test is whether the defendant’s use of their land has substantially interfered with the use and enjoyment of the plaintiff’s land, and, if so, if that interference is unreasonable. Lake Erie is a natural body of surface water. It has not been created by artificial means as part of the Burk Drainage Work. It is not within the Burk Drainage Works. It is not the property of the Municipality nor of the upstream landowners assessed for the drain. Neither the Municipality nor the upstream landowners are making an unreasonable use of the Lake. At common law, no shoreline owner has a claim for nuisance or damages against the Municipality or other public entity based on the fact that Lake Erie or some other natural body of water is flooding or eroding their shoreline, absent proof that this was cause by the exercise of some public power.
With respect to a claim in negligence, the Municipality says that section 74 of the Act does not give rise to a cause of action at common law or when read in context with section 79 of the Act, besides which the Municipality says that negligence has not been pleaded in the notice of application or proved by the applicants’ evidence. The Municipality says that, insofar as the claim is that ancillary protective works are alleged to be out of repair or insufficient, this is, in essence, a claim for protection against a natural circumstance, that is Lake Erie.
Injurious affection, involves harm caused by a public work authorized by statute, not naturally occurring harm that may have been prevented by the public work; there is no common law right to be protected from the natural weather phenomenon on Lake Erie. The applicants’ claims are not for protection from the artificial collection of water into drainage works under the statutory authority; this is not a case about not causing harm, it is a case about not providing a benefit. A private person owes no duty to provide a benefit to another, the law of negligence simply does not cover the current situation.
Throughout the Municipality’s submissions there are references to a number of judicial decisions where flooding occurred in relation to drainage works. McPhee v Plympton [1987 CanLII 4223 (On SC)] is an instructive case because it reflects the common law rights and obligations of higher and lower landowners with respect to surface water drainage. The case was decided by District Court Judge Ross in August 1987. That case involved the County of Lambton widening and raising the level of one of its county roads so as to create a level crossing with a CPR rail line and, as part of this work, a box culvert under the county road was replaced and relocated with a smaller diameter corrugated steel pipe. The county was concerned about the drainage of the road and had no regard for the drainage requirements of others. The result of this road work was that water on the McPhee property could not get to the Maudaumin Drain quickly enough to prevent flooding of the McPhee home; before the road work, the McPhee home was never flooded. In the decision Ross DCJ says: The culverts installed in the upgrading of the road were installed for the purpose of drainage of the road and do not form part of the Mandaumin drain. In changing the road drainage culverts the County of Lambton did not interfere with the watercourse or municipal drainage system and thus its work was not actionable as it would have been if the County of Lambton had interfered or diverted or impeded a watercourse or municipal drain. Thus, in raising the road the County of Lambton did not commit an actionable wrong.
What is interesting and pertinent to the debate about the actionability of the appellants’ damages claims is the discussion in the McPhee v Plympton decision of the legal position of landowners with respect to surface water run-off. The following head notes fairly reflect the decision of Ross DCJ:
(1) The owner of higher lands has no natural right to drain his surface water onto the lands of his neighbour, so that the owner of the lower land owes no servitude to the owner of upper lands in this respect. Further, the owner of lower lands may erect barriers to prevent the water from flowing onto his land. This is what the county did when it raised the surface of the road and it was in the same position as the owner of property for this purpose. In doing so, the county did not discharge water onto the plaintiffs' lands; the water was already there. Rather, the raising of the road prevented the water on the plaintiffs' property from escaping as it did formerly. Since the county did what it had a right to do, its action did not amount to a nuisance. Moreover, although the water formerly drained through a culvert under the road, it did not drain in a defined channel. Hence, the plaintiffs did not acquire a prescriptive right to drain surface water through the culvert.
(2) The action of the county was not negligent. It did not have a duty to provide drainage facilities for surface water to the plaintiffs at common law. Nor was there a statutory duty to that effect. Section 51 of the Public Transportation and Highway Improvement Act, R.S.O. 1980, c. 421, and s. 284 of the Municipal Act, R.S.O. 1980, c. 302, imposes a duty on a municipality to keep roads in repair and impose liability on a municipality for default for all damages sustained. However, that duty is directed to persons using the road, not to adjoining landowners. Further, although the Ministry of Transportation and Communications had issued directives on drainage and flood control which municipalities had to observe in the construction of roads, they applied only if the adjoining land was a designated floodplain. The plaintiffs' property was not so designated. Even if the county had owed a duty of care to the plaintiffs and if the county breached it by failing to install a culvert big enough to handle a one in 25 years' storm, the onus would be on the plaintiffs to establish that if the proper culvert had been used there would have been no flooding. The plaintiffs failed to prove that.
While this McPhee v Plympton case has little connection to the issue of wooden seawalls and groynes along the lakeshore of Lake Erie west of Erieau, it is instructive about the intent and purpose of the Drainage Act, insofar as the Drainage Act is intended to overcome the common law obstacles to drainage of and thus the productive use of land in the Province. The effect of the common law is to encourage a broken-up, hedgerow-like landscape of border berms, dykes, retaining walls and other barriers to surface water flows designed to protect each individual land holding from surface water coming down from higher land holding(s). The result is no effective drainage of any of the lands in the watershed. The Drainage Act is designed to cut through those barriers and to provide comprehensive drainage systems which serve the needs of all in a watershed and to provide drainage works to facilitate the productive use of all land holdings.
In the Municipality’s submissions pertaining to a purposive analysis of the statutory interpretation of “injurious affection” in subsection 79(1) of the Act, it is submitted that the interpreter is to identify the objects that the legislature wanted to achieve in enacting the legislation – the practical impacts it hoped to produce, the evils or “mischief it wished to cure”. In broad terms, the mischief to be cured by the Drainage Act is a proliferation of self-help, common law driven, boundary berms, dykes, retaining walls and other barriers to surface water flows which inhibit the efficient drainage of any of the lands in the watershed; the Drainage Act replaces that with a system of community-initiated and financed drainage works to facilitate the productive use of all land holdings in a watershed.
Returning to the Municipality’s submissions, to summarize, the Municipality says the property owners along the shoreline of Lake Erie have no actionable tort claim (nuisance, negligence, trespass) for damages against anyone for damage cause by Lake Erie flooding from rising water levels, storm surge and wave uprush or from the action of Lake ice or from erosion, all of which have been and are exacerbated by climate change. It is not the purpose of Section 79 to create an actionable claim for damages for injurious affection where no common law tort claim would otherwise exist but for the statutory authority of the Drainage Act; and section 79 of the Act should be interpreted accordingly.
In response, the applicants submit that there is no connection between the “injurious affection” common law term of art and its association with expropriation and the language of section 79 of the Drainage Act. Section 79 starts by referring to when a person’s property is affected by the condition of drainage works and concludes by saying that a municipality is liable in damages to the owner whose property is so injuriously affected. The applicants say that the words “injuriously affected” in section 79 are not the same as “injurious affection”, the common law term of art. The ordinary meaning of “injuriously affected” in section 79 refers to harm to a property caused by or attributable to the condition of a municipal drain that has not been maintained in good repair as specified in the applicable most recent engineer’s report.
The applicants’ submission emphases that “injurious affection” is not mentioned in the Drainage Act and asserts that the Municipality has misconstrued and misinterpreted the relationship between the Drainage Act and both the common law and the Expropriations Act.
The applicants review the history of the Drainage Act and case law to the effect that once a municipal drain has been constructed under the Act, all claims for damages arising from works constructed under the Act should be maintainable only under the provisions of the Act. The statutory cause of action established by section 79 is, the applicants submit, a strict liability cause of action. Relying upon the decision of the Referee in the case of Cronk v Central Elgin (Municipality), 2018 ONDR 3 the applicants say that a municipality’s conduct is relevant to the question of whether damages are paid by the municipal drain or out of general funds but that, if the drain cannot be repaired in 45 days and if the harm resulting cannot be mitigated until the repair is completed, the injuriously affected land owner is entitled to damages for the harm caused by the municipal drain not being in repair as specified in the most recent engineer’s report on the drain. Negligence is not part of the equation as to whether a municipality is liable for damages under section 79; if the conditions precedent to recovery of the section are established, liability follows.
The applicants make the point that section 79 of the Act makes the municipality liable to any person affected by the condition of the municipal drain, not just those who are assessed for and who benefit from the municipal drain. The conditions precedent to recovery under section 79 are that sufficient notice be given and that damages have been suffered as a result of the condition of the municipal drain not being in repair as specified in the most recent engineer’s report on the relevant part of the drain. It is then a matter of strict liability with no obligation, the applicants submit, to show, as required by injurious affection at common law, a tort (nuisance, negligence, or trespass) that is otherwise actionable but for the authorizing statute.
It is said by the applicants that the Drainage Act is comprehensive legislation regulating drainage matters which replaces the common law with respect to drainage matters. The Act establishes a cause of action in section 79 and entitlement to damages under that section is not a question of an expansion of liability, as the Municipality asserts, but is instead a remedy explicitly established by and set out in the Drainage Act. There is no statutory interpretation exercise needed because there is no ambiguity about section 79.
The applicants say that, to the extent that the Municipality is making the assertion, natural weather effects including climate change, wave action, and other natural phenomena are not a bar to compensation under section 79 of the Drainage Act.
While the Municipality’s submissions have considerable relevance to the matter of causation and measure of damages, which will be germane in a later stage of the hearing of the merits, I do not subscribe to the Municipality’s submission that the purpose of Section 79 is not to create an actionable claim for damages where no common law tort claim would otherwise exist but for the statutory authority of the Drainage Act.
In my view, section 79 of the Act is intended to extend a municipality’s liability to an owner whose property is affected by the condition of a drainage works, even though, at common law, such claims would be denied.
By way of an example that has no bearing upon the issue of wooden seawalls and groynes along the lakeshore of Lake Erie west of Erieau, at common law the owner of higher land has no damage claim against a lower landowner if the lower landowner blocks the flow of surface water as discussed in the McPhee v Plympton case. If, however, there is a municipal drain constructed under the Drainage Act for which the higher landowner has been assessed, that higher landowner is entitled to use the drain and to have the municipal drain maintained in good repair and to have surface water carried away via the municipal drain, even though at common law as the higher landowner, there is no actionable claim for damages in nuisance or negligence. This is a purposive interpretation of section 79 that is consistent with the intent and purpose of Act as discussed in paragraph 18 above. To this extent at least, subsection 79 creates an actionable claim for damages for injurious affection where no common law tort claim would otherwise exist. The Municipality acknowledges that, if a landowner has been assessed for access to a municipal drain, that landowner would have a claim under section 79 for damage attributable to the non-repair of a municipal drain they paid for, but that this represents a specific carve out from the general rule that there must be an actionable cause of action that would otherwise exist but for the statutory authority of the Drainage Act. Aside from the question of shoreline wooden seawalls and groynes, I am not imaginative enough to conjure additional hypothetical examples of claims for damages for injurious affection where no common law tort claim would otherwise exist, but I anticipate some do and I do not wish to preclude their consideration or to begin a non-exhaustive list of “carve-outs” from a general rule that section 79 requires as a prerequisite that there be an actionable common law tort claim for damages but for the statutory authority of the Drainage Act.
I am also reluctant to superimpose on section 79 of the Act an imputed prerequisite that, to qualify for damages under section 79, an applicant must prove that, but for the Drainage Act, they would otherwise have a successful common law tort claim in nuisance, negligence and/or trespass. I am cognisant of the Municipality’s submission that “injurious affection” and “injuriously affected” are synonymous and to be understood and interpreted having regard for the large body of law surrounding the concept of “injurious affection”. I am, however, not prepared to read into the strict liability statutory cause of action the equally large body of law surrounding the torts of nuisance, negligence and trespass.
In dismissing the Municipality’s motion to dismiss the applicants’ damages claims, I am not dismissing, ignoring or discounting the causation and quantum of damages issues raised collaterally by the Municipality’s submissions; those issues, and others, will be the subject of a future hearing of the merits.
To be specific about one issue, the Municipality’s motion has raised material questions about causation. The damage claims by the applicants are for harm done by Lake Erie. No harm has been done by wooden seawalls and groynes, per se, in their present condition or by any other part of the Burk Drainage Works. As I understand it, in calm weather conditions the level of the Lake is at or just below the engineer specified elevation of the top of the wooden seawalls and groynes and, in calm weather conditions, even in high Lake water periods, there is no damaging flooding inland. Before, during and following naturally occurring stormy weather on the Lake, Lake water rises above the engineer specified seawall and groyne elevations and that is when flooding and resulting harm occurs. The present condition of the wooden seawalls and groynes does not increase the height of the flood waters or prolong the duration of the flooding. This is different than a poorly maintained municipal drain which does not carry away water as quickly as designed thus increasing the height of the flood peak and the duration of flooding that would otherwise have occurred.
While natural weather effects including climate change, wave action, and other natural phenomena are not a bar to compensation under section 79 of the Drainage Act, section 79 requires a causal connection between the condition of the drainage works and the harm resulting from the natural weather phenomena on Lake Erie for which damages are sought. I acknowledge that I have yet to receive the Municipality’s evidence or submissions from counsel about the evidence. It may well be that there is something I do not understand or some evidence I have overlooked or misinterpreted, but, at this stage, it appears to me that establishing the necessary causal connection represents a substantial challenge.
As I have said, this issue and others will be the subject of a future hearing of the merits. In the meantime, I dismiss the Municipality’s October 28, 2022 motion to dismiss the applicants’ claims for damages on the basis that such are not actionable under section 79 of the Act.
Dated at London this November 30, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee