Katrina Collins v. Municipality of Middlesex Centre, 2025 ONDR 2

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Collins v Middlesex Centre (Municipality), 2025 ONDR 2

DATE OF DECISION: 2025-04-28

Court File No.: CV-23-00001995-0000 (London)

B E T W E E N:

KATRINA COLLINS

Plaintiff

• and –

MUNICIPALITY OF MIDDLESEX CENTRE

Defendant

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

HEARD ON WEDNESDAY, THE 23^rd and THURSDAY, THE 24^th DAY OF APRIL, 2025

ORDER

The Court of the Drainage Referee fixed April 23, 2025 as the date for a hearing of the Municipality’s motion for

(a) An order dismissing all claims in this action for compensation under section 79 of the Drainage Act, RSO 1990, c D.17, as amended (the “Drainage Act”);

(b) In the alternative, a declaration that the plaintiff’s claims to damages are limited to those provable damages occurring on or after November 7, 2021; and

(c) An Order dismissing the balance of this matter.

and, after hearing the evidence of those who swore affidavits in support of and in response to the Municipality’s motion and the submissions of counsel, for the reasons that follow:

THIS COURT ORDERS that

1. The action is dismissed.

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

Dated at London this April 28, 2025.

Andrew C. Wright Acting Drainage Referee

REASONS

Definitions

1. For the purposes of these reasons, unless the context requires a different meaning:

(a) the “1965 Engineer’s Report” means the Engineer’s Report on the Forsyth Drain dated August 19, 1965 issued by A.M. Spriet & Associates Ltd., and signed by A.J. DeVos, P.Eng. including plan and profile. (Exhibit No.: 1)

(b) the “2006 Engineer’s Report” means the Engineer’s Report on the Forsyth Drain Garden Avenue Branches 2006 dated October 19, 2006 issued by Spriet Associates London Limited and signed by M.P. DeVos, P.Eng. including plan and profile. (Exhibit No.: 2)

(c) the “2016 Delaware Stormwater Master Plan” means the Delaware Community Settlement Area Stormwater Master Plan prepared pursuant to the Municipal Class Environmental Assessment; the Municipal Class Environmental Assessment was approved in October 2000, as amended in 2007 and 2011. The 2016 Delaware Stormwater Master Plan was issued by Stantec Consulting Ltd. in 2016 and signed by Stephanie Bergman, Hons. BA, MA and Nelson Oliveira, P.Eng.

(d) the “2022 Road Reconstruction Works” means the municipal infrastructure works described in paragraphs 24 to 27 of these reasons.

(e) the “Act” or the “Drainage Act” means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.

(f) “ADIP” means the OMAFA Agriculture Drainage Infrastructure Program.

(g) the “Building Code Act” means the Building Code Act, 1992, S.O. 1992, c.23, as amended.

(h) the “Conservation Authority” means the Lower Thames Valley Conservation Authority having jurisdiction in the area of the Forsyth Drain

(i) the “Drain” or “Forsyth Drain” means the drainage works known as the Forsyth Drain, constructed under the authority of the Act in accordance with the 1965 Engineer’s Report and the 2006 Engineer’s Report.

(j) the “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.

(k) The “Expropriations Act” means the Expropriations Act, R.S.O. 1990, c. E.26, as amended.

(l) the “Municipal Act” means the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended.

(m) the “Municipality,” sometimes referred to as “Middlesex Centre,” means the defendant, the Municipality of Middlesex Centre, for itself and as the administrator of the Drainage Act within its territorial limits.

(n) “OMAFA” means the Ministry of Agriculture, Food and Rural Affairs, now the Ministry of Agriculture, Food and Agri-Business.

(o) the “Planning Act” means the Planning Act, R.S.O. 1990, C. P.13, as amended.

(p) the “Referee Rules” means Regulation 232/15, as amended, made under the Drainage Act, being the Rules of Practice and Procedure in Proceedings Before The Referee.

(q) the “Rules of Civil Procedure” means the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as Amended, made under the Courts of Justice Act, R.S.O. 1990, C. C.43, as amended.

Parties and Representation

2. The plaintiff was represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation, until June 21, 2024 when the plaintiff was represented briefly by Brian Duxbury, a lawyer in the office of Duxbury Law and after July 2, 2024 the plaintiff was self-represented until September 12, 2024, when the plaintiff was again and is now represented by Mr. Kirwin.

3. Middlesex Centre is represented by Jonathan de Vries and Leslie Jack, lawyers with the law firm of Shillington McCall ^LLP, Lawyers.

Documents and Exhibits

4. At the time of the hearing of the Municipality’s preliminary motion in April 2025, the following documents are part of the record:

Statement of Claim issued September 20, 2023

No.:1

Engineer’s Report on the Forsyth Drain dated August 19, 1965 issued by A.M. Spriet & Associates Ltd., and signed by A.J. DeVos, P.Eng. including plan and profile. (“1965 Engineer’s Report”)

No.: 2

Engineer’s Report on the Forsyth Drain Garden Avenue Branches 2006 dated October 19, 2006 issued by Spriet Associates London Limited and signed by M.P. DeVos, P.Eng. including plan and profile. (“2006 Engineer’s Report”)

Procedural Order issued December 12, 2023 by Acting Drainage Referee, Andrew Wright, now reported as Collins v Middlesex Centre (Municipality), 2023 ONDR 11

Statement of Defence dated February 28, 2024

No.: 3

Affidavit of Documents sworn by Katrina Collins on January 30, 2024

No.: 4

Compilation of the 222 documents referred to the Affidavit of Documents sworn January 30, 2024 by Katrina Collins

No.: 5

Middlesex Centre’s Affidavit of Documents sworn by Dan Anderson, Drainage Superintendent, in March 28, 2024

No.: 6

Compilation of 49 documents referred to in the Middlesex Centre Affidavit of Documents sworn March 28, 2024

Amended Statement of Claim filed and issued April 30, 2024

Reply issued April 30, 2024

Amended Statement of Defence issued June 28, 2024

Amended Reply issued August 2, 2024

Procedural Order issued September 20, 2024 by Acting Drainage Referee, Andrew Wright setting schedule for the Municipality’s Preliminary Motion, now reported as Collins v Middlesex Centre (Municipality), 2024 ONDR 7.

No.: 7

Municipality’s Motion Record for its Preliminary Motion which includes the Notice of Motion dated December 2, 2024 and the supporting affidavit of Dan Anderson sworn December 2, 2024 with the following Exhibits:

A Amended Statement of Claim dated April 30, 2024

B Amended Statement of Defence dated June 28, 2024

C Plaintiff’s Reply dated April 30, 2024

D Affidavit of Documents of Middlesex Centre sworn March 28, 2024

E Affidavits of Documents of Katrina Collins sworn January 30, 2024

F 1965 Engineer’s Report

G E-mails from Katrina Collins to Dan Anderson dated September 22, 2021 with photo attachments

H E-mail between Dan Anderson and Katrina Collins dated May 7, 2018

I E-mails between Katrina Collins and Brian Lima dated May 7 and 8, 2018

No. 8

Affidavit of Katrina Collins sworn January 15, 2025 in response to the Municipality’s Preliminary Motion with 21 Exhibits as follows:

A Parcel registers for plaintiff’s property

B Photographs of the Wellington Street catch basin after the 2022 Road Reconstruction Works

C Photographs of the York Street catch basin after the 2022 Road Reconstruction Works

D Aerial photograph showing the locations of the Yorks Street catch basin and the Welington Street catch basin

E Photographs of interior of the plaintiff’s house on April 16, 2018

F Photographs and video of the interior of the plaintiff’s house and video taken May 6, 2018

G Photographs of the interior of the plaintiff’s house taken on May 16, 2018

H Photographs of the interior of the plaintiff’s house taken on October 1, 2019

I Photographs and videos of the interior of the plaintiff’s house, her driveway on Wellington Street, ponding on boulevard on the south side of Wellington Street and ponding on the boulevard on the east side of York Street and videos, all taken on September 22, 2021

J Videos taken on June 26, 2024, after the 2022 Road Reconstruction Works, from inside the plaintiff’s house and outside from the northeast corner of the plaintiff’s property

K Videos taken on July 15, 2024, after the 2022 Road Reconstruction Works, from inside the plaintiff’s house, from inside the plaintiff’s garage and outside from the northeast corner of the plaintiff’s property

L E-mail from the plaintiff and Brian Lima (Municipality) on May 7, 2018

M E-mail exchange between Dan Anderson (Municipality) and the plaintiff on May 8, 2018

N Copy of medical leave letter issued on May 9, 2028 to the plaintiff

O E-mail sent at 6:43 am on September 22, 2021 by the plaintiff to Dan Anderson (Municipality) with several photographs of ponding on boulevard on the south side of Wellington Street

P E-mail sent at 6:58 am on September 22, 2021 by the plaintiff to Dan Anderson (Municipality) with a photograph of the interior of the plaintiff’s house

Q E-mail sent at 6:58 am on September 22, 2021 by the plaintiff to Dan Anderson (Municipality) with a video of ponding on the boulevard on the east side of York Street

R E-mail sent on September 23, 2021 by Dan Anderson (Municipality) to the plaintiff

S This is a 1½ hour YouTube video of Council Meeting on September 20, 2023. The relevant portions are at 59:00 to 1:10.45 minutes showing Mr. Kirwin speaking against a proposal for the development of the Wellington Street property immediately to the west of the plaintiff’s property because of the risk of flooding of low laying property and questions of lot grading

T Letter dated September 16, 2024 from the Municipality (Michael Di Lullo, Chief Administrative Officer) to the plaintiff

U Letter dated November 28, 2024 from the plaintiff to the Municipality (Michael Di Lullo, Chief Administrative Officer) including a copy of the Procedural Order issued December 12, 2023

No. 9

Affidavit of Steven Collins sworn January 25, 2024 with two exhibits as follows:

A Photograph taken May 17, 2018 showing the Wellington Street catch basin

B The plan and profile from the 1965 Engineer’s Report

No. 10

Affidavit of Sidney Vander Veen, P.Eng. sworn January 15, 2025 in response to the Municipality’s Preliminary Motion with eight Exhibits as follows:

A Ontario Ministry of Agriculture, Food and Rural Affairs Publication 859 entitled “A Guide for Drainage Superintendents Working under the Drainage Act in Ontario” (pages 8 to 251)

B Publication entitled “Drainage Superintendents’ Guide”, published in April 1991 by the Drainage Superintendents Association of Ontario, in cooperation with staff from the Ministry of Agriculture and Food (pages 253 to 294)

C Policy 4.2(a) and Appendix A from the Agriculture Drainage Programme policy for eligibility for grants under subsection 85 (b) of the Drainage Act to subsidize a municipality’s cost of a drainage superintendent (pages 297 to 313)

D Middlesex Centre By-law No. 2018-026 appointing Dan Anderson as Drainage Superintendent for Middlesex Centre (page 315)

E Township of Delaware By-law No. 1014 adopting in June 1930 the November 15, 1929 report of W.R. Smith, A.M.E.I.C, Township Engineer to establish the Forsyth Drain (page 317 to 326)

F The 1965 Engineer’s Report, including plan and profile (pages 328 to 339)

G The 2006 Engineer’s Report, including plans and profiles (pages 341 to 352)

H The 2016 Delaware Stormwater Master Plan (pages 354 to 850)

No. 11

The Curriculum Vitae of Sid Vander Veen, P.Eng.

No. 12

Sid Vander Veen’s Acknowledgement of Expert’s Duty signed January 15, 2025

No. 13

Record dated April 4, 2025 filed by the applicant in response to the Municipality’s preliminary Motion with three Tabs:

Tab 1 – Exhibit No. 8

Tab 2 – Exhibit No. 9

Tab 3 – Exhibit No. 10

5. 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 facta submitted by the parties or case law referred to by counsel. Also, 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.

Background

6. The Municipality was created on January 1, 1998, as the result of a municipal restructuring amalgamation of the Townships of London, Lobo and Delaware. At the time of restructuring, the plaintiff’s property at 15 York Street was in the Village of Delaware, which was within and part of the Township of Delaware. The Village of Delaware was the principal settlement area in the former Township of Delaware. Since restructuring the plaintiff’s property is simply part of the larger Middlesex Centre Municipality.

7. The plaintiff’s property, known municipally as 15 York Street, is part of Lot 16 registered plan 47 (assessment Roll # 393901902108900). It is located in the southwest quadrant of the intersection of York and Wellington Streets. York Street runs north and south; Wellington Street runs east and west.

8. Middlesex Centre’s Official Plan has three levels of settlement area hierarchy: the highest order is Urban Settlement Areas, followed by Community Settlement Areas and finally Hamlets. The former Village of Delaware is designated as a Community Settlement Area.

9. Prior to restructuring, the Village of Delaware had municipal water mains but no sanitary or storm sewers. Stormwater management was undertaken under the Drainage Act. The Forsyth Drain was one of the municipal drains established in Delaware, and it serviced a large portion of the former Village's southeast. The cost of the infrastructure and its maintenance and repair was levied via the Drainage Act against Village residents and roads, with no part of it going to the general rate of the predominantly rural Township of Delaware.

10. The Forsyth Drain is a closed drain, the origins of which date back to the early decades of the Twentieth Century. It was most recently reconstructed and repaired in accordance with the 1965 Engineer’s Report. As mentioned, it provides drainage for an area in the southeast of the Delaware Community Settlement Area. In the vicinity of the plaintiff’s property, the Forsyth Drain flowed from north to south in pipes under the travelled portion of York Street and outlet to the Thames River south of Highway No.:2, now County Road No. 2 (Longwoods Road) to the east of John Street.

11. The Drain is now located in and is the responsibility of Middlesex Centre under the Drainage Act.

12. In 2006, the Garden Avenue Branches were incorporated into and became part of the Forsyth Drain in accordance with the 2006 Engineer’s Report. The Garden Avenue Branches had been constructed as part of the servicing and development of a then-new residential subdivision. The subdivision lands were within the drainage area of the Drain identified in the 1965 Engineer’s Report.

13. These Garden Avenue Branches outlet into the Forsyth Drain just north of County Road No.2 (Longwoods Road) about 675 feet (205 metres) south of and downstream from the plaintiff’s property.

14. In 2016, Stantec Consulting Ltd. prepared the 2016 Delaware Stormwater Master Plan report following the Municipal Class Environmental Assessment process. The Class EA process and the 2016 Delaware Stormwater Master Plan were the necessary precursors to the 2022 Road Reconstruction Works referred to in paragraph 24 below. The Class EA process was commenced on January 14, 2015[1] and was completed on February 11, 2016[2], after which the 2016 Delaware Stormwater Master Plan report was issued.

15. The 2016 Delaware Stormwater Master Plan document is 496 pages in length[3]. The 2016 Delaware Stormwater Master Plan report identified the Forsyth Drain as one of ten subdrainage systems in Delaware. The subdrainage areas are identified in the report as Prior Municipal Drain, Mill Street development storm sewer, Hog Back Close storm sewer, Tower Heights Storm Sewer, Springer Road Municipal Drain, Cummings Municipal Drain, Longwoods Road Culvert, Longwoods Commercial lands, Harris Road Thompson Municipal Drain, and the Forsyth Municipal Drain. The boundaries of each subdrainage system are shown on the plan of Preferred Alternatives.[4]

16. With respect to the then-existing conditions of the Forsyth Drain, the salient observation in section 5.3.11 of the 2016 Delaware Stormwater Master Plan document[5] is

Many of the existing pipes located within the system have insufficient capacity to accommodate minor flows. There is no defined route for major flows, and therefore, all flows are ultimately directed to the undersized minor system. As a result, ponding along York Street and Garden Avenue is likely.

17. The problem is insufficient capacity. The 2016 Delaware Stormwater Master Plan document does not report, as an existing condition, that the Forsyth Drain is out of repair or that it is not being maintained.

18. In the context of applying evaluation criteria to alternatives for the Forsyth Drain subdrainage area, in the Operation and Maintenance Costs category, the 2016 Delaware Stormwater Master Plan document describes a disadvantage of the “Do Nothing” alternative, as follows:

High maintenance and costs associated with repairing the Forsyth Drain in its existing alignment. Root penetration in areas of the drain along private property (off the right of way) may further reduce pipe capacity and require future maintenance

This speaks to future costs of maintaining and keeping in repair the Forsyth Drain if it remains as it was in 2016. This appears in section 6.2.11 of the 2016 Delaware Stormwater Master Plan report[6]. The “areas of the drain along private property” are between station 1+20 and station 6+87 of the Forsyth Drain, as shown on the plan and profile from the 1965 Engineer’s Report.[7]

19. The 2016 Delaware Stormwater Master Plan identifies a preferred and recommended alternative for the Forsyth Drain subdrainage area in section 7.1.11.[8] The Class EA process evaluated alternatives for the Forsyth Drain subdrainage area, including the preferred and recommended Alternative 2, are presented in Table 6.13 of the 2016 Delaware Stormwater Master Plan[9] A description of Alternative 2 is given in section 6.2.11.2 of the 2016 Delaware Stormwater Master Plan report[10]. It is perhaps best illustrated by Figure 6.15 of the 2016 Delaware Stormwater Master Plan report.[11]

20. As it is pertinent to the plaintiff’s property at 15 York Street, Alternative 2 proposed the construction of a new storm sewer in Wellington Street from York Street, flowing westward to a new outfall to the Thames River. This storm sewer and outfall would have the capacity to carry flows from a 100-year storm event. The Forsyth Drain infrastructure under the travelled portion of York Street south of Wellington Street would be replaced by a storm sewer in York Street, which would flow northward to the storm sewer in Wellington Street, thence to the new outfall to the Thames River; again, this storm sewer would have the capacity to carry flows from a 100-year storm event. The Forsyth Drain infrastructure under the travelled portion of Wellington Street east of York Street would be replaced by a westward-flowing storm sewer in Wellington Street, thence to the new outfall to the Thames River; this, too, would have the capacity to carry flows from a 100-year storm event.

21. The part of the Forsyth Drain under York Street north of Wellington Street would be retained and would outlet into the new storm sewer flowing westward under Wellington Street. The preferred and recommended Alternative 2 retains the part of the Forsyth Drain that crosses private property between station 1+20 and station 6+87 of the plan and profile from the 1965 Engineer’s Report referred to in paragraph 18 above but that section of the Forsyth Drain is relieved of flows from York Street and Wellington Street.

22. As previously mentioned, the Class EA process and the 2016 Delaware Stormwater Master Plan report were the necessary precursors to the 2022 Road Reconstruction Works referred to in paragraph 24 below.

23. The plaintiff acquired the property at 15 York Street on December 8, 2017.

24. From May 2022 to September 2022, Middlesex Centre undertook road infrastructure works in the vicinity of the plaintiff’s property, which included replacing with storm sewers the parts of the Forsyth Drain under the travelled portions of York Street and of Wellington Street to the east of York Street. This is defined as and referred to in these reasons as the “2022 Road Reconstruction Works”. The replacements included storm sewer pipes under the travelled portion of the road allowances of York Street and Wellington Streets east of York Street. New storm sewers were also installed under the travelled portion of Wellington Street west of York Street.

25. The 2022 Road Reconstruction Works were not undertaken under the authority of the Drainage Act, and the replacement and new storm sewers, paving, curbs, gutters and catch basins are not part of the Forsyth Drain.

26. The Forsyth Drain infrastructure under the travelled portions of York Street and Wellington Street east of York Street has been replaced by storm sewers and no longer physically exists; what may exist has been decommissioned and abandoned in place. Middlesex Centre intends to formally abandon, as Drainage Act infrastructure, the now non-existent portions of the Forsyth Drain that were replaced as part of the 2022 Road Reconstruction Works but has not yet done so.

27. Before the 2022 Road Reconstruction Works, the paved, travelled portions of York Street and Wellington Street had sloped shoulders and roadside ditches or swales; in some cases, sidewalks were located immediately adjacent to the pavement. The travelled portion of the streets was replaced with asphalt paving, curbs, and gutters. In some places, catch basins were installed in the curbs and gutters and those new catch basins outlet into the newly installed storm sewers.

28. Prior to the 2022 Road Reconstruction Works, there was no storm sewer under Wellington Road west of York Street; a storm sewer was installed in that location as part of the 2022 Road Reconstruction. It should be remembered that the Forsyth Drain infrastructure under the travelled portion of York Street south of Wellington Street, which previously flowed southward, was replaced by a storm sewer in York Street south of Wellington Street, which flowed northward to the storm sewer in Wellington Street, thence to the new outfall to the Thames River.

29. There were and are sidewalks on both sides of York Street in the vicinity of its intersection with Wellington Street. There were and are sidewalks on the south side of Wellington Street, but not on the north. Where sidewalks were previously adjacent to the paved travelled portion of the road, as was the case with Wellington Street, in 2022, the sidewalks were relocated away from the pavement.

30. There are two catch basins which are of significance for the plaintiff’s property. The locations of those two catch basins are shown on the aerial photograph on page 17 of the plaintiff’s affidavit.[12] That aerial photo was taken before the 2022 Road Reconstruction Works because there are no curbs and gutters, and the sidewalk on the south side of Wellington Street abuts directly on the paved, travelled portion of the street.

31. Curbs and gutters are shown in the photo of the York Street catch basin in Exhibit “C” to the plaintiff’s affidavit,[13] so that photograph was taken after the 2022 Road Reconstruction Works. That York Street catch basin is located at the bottom of a swale west of the curb and east of the sidewalk and is located between an electrical or telecommunication utility box or cabinet to the north and the hydro pole to the south. It is noteworthy that there is a catch basin in the curb a few feet to the east of the catch basin in the swale. The new replacement York Street catch basin is in approximately the same location as its predecessor before the 2022 Road Reconstruction Works.

32. The Wellington Street catchbasin is shown in the photos provided with the plaintiff’s affidavit[14]; these photographs were taken before the 2022 Road Reconstruction Works and show its location in a swale south of the sidewalk, between the no-parking sign to the east and the plaintiff’s driveway to the west. There is, however, a photograph of the curb, gutter and sidewalk on the south side of Wellington Street in front of the plaintiff’s house as part of the plaintiff’s productions.[15] It is dated July 24, 2023,[16] about a year after the 2022 Road Reconstruction Works. It shows the location of the newly installed catchbasin to the south of the newly installed sidewalk on the south side of the Wellington Street road allowance behind and to the west of the no parking sign. It is to be noted that there is no catch basin in the curb at this location.

33. The York Street catch basin and the Wellington Street catch basin that existed before the 2022 Road Reconstruction Works were replaced and continue after the 2022 Road Reconstruction Works, albeit the Wellington Street catch basin is now a larger structure and has been moved a few feet to the south very close to if not on the boundary of the road allowance abutting the plaintiff’s property.

34. It is now desirable to turn to the plan and profile from the 1965 Engineer’s Report. It appears in several places on the record, but reference is made to Sidney Vander Veen’s affidavit.[17]

35. That 1965 plan shows the York Street catch basin in the location as shown in the photos and videos provided in the plaintiff’s affidavit.[18], as well as in the affidavit of Dan Anderson.[19] It is at the bottom of a swale west of the recently installed curb on the west side of the York Street road allowance near the southeast corner of the plaintiff’s property. That catch basin was, and its replacement is in the same location. After the 2022 Road Reconstruction Works, with the removal or decommissioning of the Forsyth Drain infrastructure under the travelled portion of the roadway, the new York Street catch basin now outlets to the catch basin in the curb a few feet to the east and thence into the storm sewers installed as part of the 2022 Road Reconstruction Works.

36. The 1965 plan shows no Drainage Act infrastructure on Wellington Street west of York Street. The Wellington Street catch basin and its outlet lateral(s) are not, therefore, part of the Forsyth Drain infrastructure – or part of any drainage works under the aegis of the Drainage Act. Before the 2022 Road Reconstruction Works, the Wellington Street catch basin outlet to a drainage pipe that was part of the Forsyth Drain located under the travelled portion of York Street to the east. The outlet was via a lateral running from the Wellington Street catch basin easterly under the boulevard on the south side of Wellington Street. As part of the 2022 Road Reconstruction Works, the larger replacement Wellington Street catch basin now outlets via a 300mm lateral to the north into the newly constructed storm sewer located under the travelled portion of Wellington Street. The replacement catch basin is located a few feet to the south, closer to the plaintiff’s house than its predecessor and is not at the bottom of a swale. The pre-2022 swale on the south side of Wellington Street has, since 2022, been filled in to accommodate a new sidewalk relocated away from the travelled portion of Wellington Street, resulting in slopes from the sidewalk toward the plaintiff’s property.

Plaintiff’s Issues

37. The plaintiff purchased 15 York Street in November 2017 and closed the transaction on December 8, 2017. The house, which is said to have been built in 1840, has undergone multiple additions since it was originally built.

38. Essentially, the plaintiff's complaint is that the amount of water that flowed into the Forsyth Drain significantly increased due to surrounding land use development, roof water being connected to the Drain. She also says that the 2022 paving and installation of curbs and gutters on or near her property and the intersection of York Street and Wellington Street have also increased the flow of water.

39. She says that this has been especially so since about 2005 or 2006, when a storm sewer, as well as sub-drains servicing the Garden Avenue subdivision, began to outlet into the Forsyth Drain downstream from her property. This was done under the authority of the 2006 Engineer’s Report. The plaintiff pleads that the engineer made no calculations to determine whether the Drain had adequate capacity to accept flows from the new Garden Avenue system. She says that the Garden Avenue connection substantially reduced the capacity of the already overburdened Drain to accept surface water into the Wellington Street catch basin and the York Street catch basin. She says that, as a result, there was little means for the water to escape the area near her house, resulting in a very high water table such that her sump pump ran frequently, even on days when there was no rainfall.

40. The plaintiff says that in or about 2016 Stantec Consulting Ltd. prepared the 2016 Delaware Stormwater Master Plan following the Municipal Class Environmental Assessment process. The Director of Public Works & Engineering, Brian Lima, was Middlesex Centre's contact person for the Class EA. It is pleaded that the 2016 Delaware Stormwater Master Plan recommended a number of improvements to the Forsyth Drain intended to alleviate overland flows and ponding. The plaintiff pleads that the 2016 Delaware Stormwater Master Plan also referenced "root penetration", ''frequent, prolonged ponding at a Wellington Street low point" and that “the existing Drain had insufficient capacity for minor flows”. The plaintiff says that, because of the 2016 Delaware Stormwater Master Plan report, the Municipality was aware that the 1965 vintage Drain, as amended by the 2006 Engineer’s Report, had limited or insufficient capacity to carry the flows from its watershed.

41. The statement of claim alleges substantial flooding of the plaintiff’s property, including in her basement, due to heavy rain on the following dates:

April 16, 2018

May 4, 2018

May 6, 2018

May 16, 2018

October 1, 2019

July 11, 2020

September 22, 2021

Section 79 Statutory Cause of Action

42. The plaintiff relies on sections 74 and 79 of the Drainage 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.

43. I wish to review the scheme of the Drainage Act as it relates to the maintenance and repair of municipal drains, 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. In doing so, there is much plagiarism from what was said in the June 26, 2023 decision in Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2023 ONDR 5[20], starting at paragraph 261 of those reasons.

44. Maintenance and repair entail 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.

45. The cost of maintaining and repairing a drain is assessed to the owners of the land 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 reports include two separate schedules, one for the assessment of construction costs and the other for the assessment of future maintenance and repair costs.

46. The municipality is the administrator of the Drainage Act. Except to the extent that the municipality is an assessed landowner of roads, the municipality 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.

47. 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 periodically, such as 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. Oftentimes, 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 have 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 serve a formal notice under section 79 of the Drainage Act, and once a municipality has 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.

48. The point is that the scheme of the Act does not fault a municipality for doing little or nothing to keep a municipal drain in good repair after it has been constructed, in the absence of a request for maintenance and repair.

49. 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. That said, if the municipality receives a request for a section 78 improvement, upon receiving such a section 78 request, the municipality is to appoint an engineer to investigate and prescribe an improvement to the drain, which will address the persisting drainage problem. For a review of how a municipality is to respond to a request for improvement, refer to paragraphs 65, 66 and 67 below.

50. If an improvement, as authorized by section 78, does not rectify the persisting drainage problem, it may be necessary to petition for new drainage works. In the meantime, the municipality is not liable for damages that may arise from the persisting drainage problem so long as the drain is maintained and repaired as specified in the most recent engineer’s report on the drain.

51. The essence of subsections 79(1) and 79(2) of the Act is that a municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been served with the 45-day notice specified in subsection 79(1) of the Act. The plaintiff’s claims, in this case, indicate that she thinks that section 79 is to be interpreted such that once the 45-day notice has been given and the 45-day grace period 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. Subsection 79(2) of the Act seems clear that a municipality shall not be liable for non-repair until after notice has been given. Giving retroactive effect defeats the scheme and purpose of the Act.

52. As previously indicated, under the Drainage Act, the municipality responsible for maintaining and repairing a drain is not liable for non-repair unless and until notice is served. The plaintiff places singular emphasis on the Municipality’s obligations under section 74 of the Act. However, that section cannot be read alone; it must be read with section 79, which requires a 45-day notice to be served before the municipality becomes liable for non-repair. Once the notice is served, 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.

53. 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. Often, 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 the reasonableness of time to effect a repair after the service 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 landowner is entitled to damages if the harm is 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 landowner is entitled to damages occurring from and after the expiration of the 45-day grace period. That liability exposure continues until the municipality’s obligations under the Drainage Act are changed by a superseding engineer’s report and/or formal abandonment.

54. In broad terms, the intent and purpose of the basic requirements for a notice of non-repair under section 79 are to be fair to the municipality; the municipality should be given a reasonable understanding that there is an issue about the state of repair of Drainage Act drainage works and of what part of the drainage works there is the problem so the municipality can understand what the Act requires of it. It is often clear, such as the culvert in front of my farm is plugged with debris; please remove the debris, or there is a beaver dam backing up the drain at the back of Jack’s farm; please remove it. Also, fairness to a municipality requires that the basis of any damages claim advanced under section 79 must relate to the notice given under section 79 of the Act. If the notice references a beaver dam at the back of Jack’s farm, that notice would not support a claim for damages arising from a blocked culvert, which is a concession removed from the beaver dam.

55. As previously mentioned, fairness to a municipality requires that the basis of any damages claim advanced under section 79 must relate to the notice given under section 79 of the Act.

56. One of the leading cases about the sufficiency of a section 79 notice is the case of Hud v. West Nipissing, 2011 ONSC 6294. This is a decision of Justice Ellies issued October 28, 2011. As to the question of the adequacy of the notice required to be served under section 79 of the Drainage Act, at paragraph 13 she said:

13To be sufficient under s. 79 of the Act, the notice given must identify the drain in question and request that the drain be repaired. It must also be precise enough to allow the municipality to decide if the complaint is well-founded or frivolous. Section 79(2) also requires that the notice be sent to the “head” or the “clerk” of the municipality.

14There is no evidence before this court of the position occupied by Louise Cote, the person to whom the plaintiff’s message of April 25, 2007 was sent. However, it is clear from the evidence that the message was received by the municipality very shortly after it was sent and that, regardless of her position, Ms. Cote provided it to the appropriate people at the Municipality. Therefore, I find that this aspect of the notice requirement was fulfilled.

57. The Municipality also has referred to a case called Crawford v. Ellice (Township), [1899] O.J. No. 51 at para 29 (CA). A panel of Court of Appeal Judges unanimously decided the case. In this case, a three-paragraph letter was sent to the municipality. The question was whether the letter constituted sufficient notice. The Court says:

24 It seems to me that what the statute requires is an unconditional notice or demand to repair under its provisions, given or made by a person interested in the drain, and who or whose property is injuriously affected by its condition.

25 The notice or demand ought to be for the performance of that which the plaintiff afterwards seeks to compel by mandamus; in short, it ought to be so clear and precise in its terms that the municipality might be able to ascertain whether the complaint was well-founded or frivolous, and it ought to be a notice which the municipality would be justified in treating as a notice under section 73 for the purpose of an application to the referee under sub-sec. (a).

58. In paragraph 26 of the decision, before deciding that the letter did not constitute a sufficient notice of non-repair, the Court concluded that

Looking at the whole letter it seems to me that what the plaintiff really wanted was to have the drain so improved as to give it an increased fall, to be paid for by owners of lands then using it as an outlet for their drains, but who had not contributed to its original cost.

Although this decision is over a century old and was made under a different statutory regime, it features an issue in this case: whether the communication constituted a request for improvement under section 78 of the Act or a notice of non-repair under section 79 of the Act.

59. Thus, the notice of non-repair needs to identify the municipal drain that is in need of repair, and there needs to be a request that the drainage works be repaired. The notice of non-repair may suggest how the repair should be carried out, but it does not need to specify how the municipality is to correct the condition of the drainage works identified in the notice. The municipality is not bound by any suggestion about how the drainage works and how it needs to be repaired. For that, the municipality is to look to the most recent engineer’s report on the drain or the relevant part of the drain, and if what that report requires is not possible or is impractical or is not advisable, the municipality must consider mitigation measures pending an alteration of its obligations under the Drainage Act.

60. In this case, mitigation involved replacing the relevant parts of the undersized Forsyth Drain with an oversized storm sewer system designed to accommodate a storm event with a 100-year return period. This compares to the Forsyth Drain, which, as indicated in the 1965 Engineer’s Report[21], did not approach the size of storm sewer design by the standards of 1965. So long as the replacement storm sewers provide comparable or better drainage than the Forsyth Drain was designed to provide, the Municipality has mitigated the effects of eliminating the Forsyth Drain infrastructure in the vicinity of the plaintiff’s property. With respect to the plaintiff’s property, the 2022 Road Reconstruction Works mitigated the replacement of the Forsyth Drain pending the formal abandonment of the relevant part of the Forsyth Drain to remove any obligation the Municipality may continue to have under the Drainage Act.

Improvements under Section 78 of the Act

61. The Act distinguishes between improvements to drainage works and maintenance and repair of drainage works. The principal distinction is that an improvement requires an engineer’s report, whereas maintenance and repair involve restoring the drainage works to the standards specified in the most recent engineer’s report.

62. There is considerable engineering work, 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 that it may be undertaken based on the most recent engineer’s report.

63. 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;”.

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

65. 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 language of section 78 is permissive. A municipality may, but is not required to, undertake an improvement project. The exception is derived from subsection 78(4) of the Act, which provides that

All proceedings, including appeals, under this section shall be the same as on a report for the construction of a drainage works.

67. If someone asks for an improvement, the understanding is that, for the purpose of the Drainage Act process, the request for an improvement is akin to a petition, except it is for an improvement rather than for a new drain or an outward expansion or upstream extension of an existing drain, and the provisions of the Act apply mutatis mutandis. So, if a request for an improvement is received by a municipality, it must consider how to proceed and appoint an engineer if the decision is to proceed. Failure to do so may result in an appeal to the Drainage Tribunal under subsection 5(2) of the Act. Once an engineer is appointed, the process, including appeals, is as prescribed by the Act. However, absent a request for the improvement of a municipal drain established under the authority of the Act, the decision whether to proceed with an improvement is entirely within the discretion of the municipality, and the municipality is under no obligation, nor does it have any liability for a decision not to undertake an improvement.

68. A request for improvement given under section 78 of the Act is not a notice of non-repair under section 79 of the Act requiring the maintenance and repair of a municipal drain, and vice versa. In the same vein, a request to incorporate the Wellington Street catch basin as a branch of the Forsyth Drain would require a petition under section 4 of the Act because it would involve extending the municipal drain upstream. This will be important in attempting to understand the nature of the communication the plaintiff says she had with the Municipality on May 7^th and 8^th, 2018 and again on September 22, 2021, as will be discussed below.

Prescribed Forms

69. In his affidavit[22], Mr. Vander Veen speaks to the Central Forms Repository, so it is perhaps useful to reflect upon the forms provided for a request for improvement under section 78 of the Act, a notice of non-repair under section 79 of the Act and a petition under section 4 of the Act.

70. While the Province of Ontario’s Central Forms Repository carries many forms related to the Drainage Act, only nine are required to be used by O. Reg. 381/12.

71. One of those required forms is the form of a petition. The prescribed form of petition is found in the Government of Ontario Central Forms Repository as Form 003-0173 entitled “Petition for Drainage Works by Owners - Form 1”. There is also a Form 2 to be used by a road authority and a Form 3 to be used by the Director appointed under the Act. These petition forms are prescribed by O. Reg. 381/12, and, as such, must be used.

72. While the Central Forms Repository carries Form 003-0202 entitled “Notice of Request for Drain Major Improvement Drainage Act”, its use is not mandatory. It is not a form prescribed by O. Reg. 381/12. As such, there is no particular form that must be used for a request that a municipality improve an existing drain pursuant to sections 78 and 78.1 of the Drainage Act.

73. Again, while the Central Forms Repository carries Form 003-0202e entitled “Notice of Request for Drain Maintenance and/or Repair”, its use is not mandatory. It is not a form prescribed by O. Reg. 381/12. As such, there is no particular form that needs to be used when giving a notice of non-repair to a municipality pursuant to section 79 of the Drainage Act, so long as it is otherwise sufficient for the purposes of section 79 of the Act.

Service of Sufficient Notice for the purposes of section 79 of the Act

74. With all of that said, the principal issue raised by the Municipality’s motion is whether sufficient notice was served on the Municipality for the purposes of section 79 of the Act and, if so, when that notice was served so as to commence the 45-day grace period.

75. In 2010, there was an amendment to subsection 79(1) of the Act. Subsection 2(29) of Schedule 1 to the Open for Business Act, 2010, S.O. 2010, c. 16, amended subsection 79(1) by deleting the words “in writing” from the introductory phrase of that subsection. The amendment came into effect on October 25, 2010.

76. Before the amendment, the introductory clause of subsection 79(1) read as follows:

Upon forty-five days’ notice in writing 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, …

77. The parties in this case have agreed that the elimination of the words “in writing” means that the prerequisite notice required by section 79 of the Act may be served verbally. I do not share that consensus and will address that issue commencing in paragraph 103 below. There is also the matter of service “upon the head or clerk of the local municipality,” and that will be discussed commencing in paragraph 121 below.

78. In the meantime, I will review and consider whether the documented and verbal evidence supports the prerequisite service of an effective notice for the purposes of section 79 of the Act.

79. Her testimony in her January 15, 2025 affidavit[23], the plaintiff says she gave oral and written notice of flooding at 15 York Street to the Municipality on numerous occasions, the particulars of which are summarized in the following paragraphs.

80. During her viva voce evidence, the plaintiff explained that she called the Municipality on Monday, May 7, 2018. At that time, her problem was that her power had been out on Saturday and Sunday, with the result that the sump pump in her basement was not operating. Without the sump pump, her basement was taking on water. On May 7, 2018, the plaintiff says that she called the Municipality and initially spoke with a female telephone receptionist to whom she “explained her flooding issue.”[24] The plaintiff did not provide the name of the telephone receptionist. In her viva voce evidence, the plaintiff says she spoke to the receptionist about water in her basement. She made no mention of any ponding of water on the south boulevard of Wellington Street or the west boulevard of York Street in the vicinity of her property. Based on the information provided about water in the basement, the telephone receptionist transferred the plaintiff’s call to Brian Lima, the Municipality’s Director of Public Works at the time.

81. There is no evidence that there was ponding of water on the south boulevard of Wellington Street or the west boulevard of York Street in the vicinity of the plaintiff’s property on May 7^th and 8^th of 2018.

82. The plaintiff refers to the telephone interaction she then had on May 7, 2018 with Brian Lima. In her affidavit, the plaintiff says she spoke of water in her basement and the high-water table[25]. Again, in her viva voce evidence, the plaintiff says she spoke to Mr. Lima about water in her basement and made no mention of any ponding of water on the south boulevard of Wellington Street or the west boulevard of York Street in the vicinity of her property.

83. Mr. Lima reacted to what he heard from the plaintiff about her flooded basement by being concerned about whether there might be a leak in the water service to the plaintiff’s house, and steps were taken to investigate this. This is reflected in his May 8, 2018 e-mail to the plaintiff.[26]

84. The plaintiff says she sent an e-mail to Dan Anderson, the Municipality’s Drainage Superintendent, on the evening of May 7, 2018 asking for help with some history on drainage in the vicinity of her property at 15 York Street[27]. This e-mail made no mention of basement flooding, nor any ponding of water on the south boulevard of Wellington Street or the west boulevard of York Street in the vicinity of her property or her then ongoing communication with Mr. Lima.

85. On the morning of May 8, 2018 Mr. Anderson e-mailed a copy of the plans and profiles from the 1965 Engineer’s Report and from the 2006 Engineer’s Report.[28]

86. In his viva voce evidence, Mr. Anderson said he was unaware of the communication between Mr. Lima and the plaintiff in May 2018 until after this litigation was commenced. He also testified that he never spoke to Mr. Lima about his e-mail exchange with the plaintiff.

87. The plaintiff complains that Mr. Anderson’s e-mail did not include contextual or explanatory text, the engineer’s reports, or a reference to the Drainage Act. She says she concluded that the blank e-mail sent by Mr. Anderson was the extent of the help she would receive, so she did not follow up.

88. The plaintiff says she had a further telephone conversation with Mr. Lima on May 8, 2018. There is confusion about the timing of the testing of the water in the plaintiff’s basement. The plaintiff says the basement water was not tested for chlorine until the morning of May 9, 2018, whereas the May 8^th e-mail from Mr. Lima suggests the testing had already occurred. Whenever the test occurred, the conclusion was that the chlorine test of the water in her basement indicated that the water did not originate from the municipal water supply, so it must be a function of groundwater infiltration. Again, this is reflected in Mr. Lima’s May 8, 2028 e-mail to the plaintiff.[29]

89. Before moving to the next communication in September of 2021, reflecting upon the Hud v. West Nipissing standards of notice enunciated in paragraph 55 above, in this May 2018 communication by the plaintiff, there is no reference to the Forsyth Drain nor any indication of how it was out of repair, nor a request that it be repaired. This is not surprising because the plaintiff concedes that, at that time, she had no knowledge of the Drainage Act or any comprehension of the Forsyth Drain. Even taking into account the verbal communication, what was provided by the plaintiff to the Municipality in May 2018 did not constitute a sufficient notice to trigger liability under section 79 of the Act.

90. It should be mentioned that the July 11, 2020 flooding event is described in the affidavit of the plaintiff’s father, Steven Collins[30]. It describes a flooded basement and water surcharging from the Wellington Street catch basin. He says that the outlet for the Wellington Street catch basin flowed to the east, so he believes it was connected to the Forsyth Drain on York Street. His belief is that the water from the Wellington Street catch basin was the source of the water in the basement and that this water originated from the Forsyth Drain. He observes that the catch basin was removed during the 2022 Road Reconstruction Works. Mr. Collins does not mention that it was replaced by a larger catch basin a few feet to the south. Importantly, in the context of this case, there was no communication with the Municipality at the time of the July 11, 2020 storm event.

91. The next communication referred to by the plaintiff in her affidavit[31] occurred about three years later on September 22, 2021.

92. It consisted of e-mail traffic from the plaintiff to Mr. Anderson with many photographs and videos of the flooded boulevard between York Street, Wellington Street and the plaintiff’s house and the driveway to the plaintiff’s property. There were four e-mails with photographs and video attachments with the following messages[32]:

6:40 pm “This is what happens in heavy rain, maybe the catch basin needs to be cleaned? I think they miss (sic) this one when they did it last time. Is there anything we can so (sic) to help this from flooding?”

6:43 pm “It’s backing up to my house, the garage man door entrance. I’m not sure what to do.”

7:14 pm “The entire corner is flooded.”

10:08 pm “It’s pouring in my basement.”

93. The first e-mail was accompanied by photographs of ponding on the boulevard on the south side of Wellington Street, so that is the catch basin that she thinks may need cleaning. The second had photographs of the interior of the plaintiff’s house. The third photograph included a video of ponding on the boulevard on the west side of York Street. As previously stated, the only catch basin that was part of the Forsyth Drain infrastructure at the time was the York Street catch basin on the west side of York Street near the southeast corner of the plaintiff’s property. Each e-mail provided attached photographs and, in one case, a video file.

94. The plaintiff did not communicate with the Municipality by telephone or other verbal means at this time in September 2021.

95. Before moving on it is worth reflecting, again upon the Hud v. West Nipissing standards of notice enunciated in paragraph 55 above, in this September 22, 2021 e-mail communication by the plaintiff, there is no reference to the Forsyth Drain nor an indication of how it is out of repair, nor a request that it be repaired. Again, this is not surprising because the plaintiff concedes that, at that time, she still had no knowledge of the Drainage Act or any comprehension of the Forsyth Drain. There was no verbal communication to augment the e-mail traffic. What was provided by the plaintiff to the Municipality in September 2021 did not constitute a sufficient notice to trigger liability under section 79 of the Act.

96. Mr. Anderson responded by e-mail on September 23, 2021 to the effect that he had referred the matter to the Municipality’s staff person in charge of catch basin cleanouts[33]. The plaintiff complains that Mr. Anderson did not tell her “the catch basin” was part of the Forsyth Drain without specifying to which of the two catch basins she was referring. She complains that Mr. Anderson did not refer her to section 79 of the Act and its prerequisite of a notice of non-repair in order to qualify for damages.

97. In her affidavit[34], the plaintiff speaks of flooding from surface water flows from the west onto her property from July to August 2024. She complains that, because of this ongoing litigation, the Municipality insisted that any communication about the flooding of her property be channelled through legal counsel. The issue of flooding in 2024 has not been raised in the pleading; rather, it has arisen only recently in the plaintiff’s affidavit.[35]

98. The photographs and videos provided by the plaintiff with respect to the 2024 storm events do not include any of the boulevard or catchbasin on the west side of York Street. Of those showing the south side of Wellington Street, there is one taken from the northwest corner of the plaintiff’s property with a fleeting segment pointing east toward the intersection with York Street, and it shows there is no flooding of the Wellington Street catch basin or of the boulevard or sidewalk on the south side of the Wellington Street road allowance.

99. Regarding the July 15, 2024 storm event, one of the outside videos is taken from inside the plaintiff’s garage. It shows surface water ponding on the plaintiff’s driveway and the northwest yard of her house[36]. This video shows the accumulation of surface water run-off from the west being drained away via the recently installed catch basin on the south side of Wellington Street.

100. That said about the 2024 storm events, because the relevant portions of the Forsyth Drain did not exist in 2024, any flooding in 2024 was not associated with or attributable to the Forsyth Drain, including the York Street catch basin and the Wellington Street catch basin, neither of which was at the time part of the Forsyth Drain.

101. The conclusion is that, even taking into account verbal as well as permanent record e-mail traffic, what was provided by the plaintiff to the Municipality in May 2028 and in September 2021 did not constitute a sufficient notice to trigger or support liability under section 79 of the Act.

102. The Municipality did not consider this communication with the plaintiff in May 2018 or September 2021 to be a request for improvement under section 78 of the Act. No engineer was appointed for that purpose under the Drainage Act by the Municipality, and there was no appeal to the Drainage Tribunal under subsection 5(2) of the Act. I am satisfied that such communication in May 2018 and September 2021 was not regarded by either the plaintiff or the Municipality as a request for improvement under section 78 of the Act and, in my opinion, it did not constitute such a request.

Service for the Purposes of Section 79 of the Act

103. As previously mentioned in paragraph 77 above, in this case, there is consensus between the parties that a notice for the purposes of section 79 may be given verbally. The plaintiff’s expert witness was of the same view.

104. I have serious reservations. In my view, the verb “serviced” in section 79 of the Act necessarily implies that something must be delivered. The Concise Oxford Dictionary defines “service” as “Make legal delivery of (writ, etc.)”. The New Shorter Oxford English Dictionary – which comes in two bulky volumes – defines “service” in Law as “The action or an act of formally serving a writ or other legal document on a person.”

105. In this day and age, much documentation is transmitted electronically by e-mail, text messaging or fax, and the legislative amendment removing the words “in writing” had the effect of clarifying that electronic transmission of documentation was sufficient to effect service; mailed, couriered, and hand-delivered service was acceptable but not a requirement. The plaintiff’s expert witness, Mr. Vander Veen, said much the same thing about the rationale for the 2010 amendments to the Act, which eliminated such things as giving notice by prepaid mail and in writing. But the verb “served” is retained in section 79 and, as a matter of fairness to municipalities, service should be interpreted such that nothing is or can be served via verbal communication, whether by telephone, video conference or in person. My reasoning follows.

106. Evidentiary issues surrounding verbal communication present significant challenges, none of which go to the bona fides of the witnesses involved. Verbal communication, while seemingly straightforward, can present challenges that compromise its reliability.

107. Verbal communication is inherently subjective. Individuals often interpret words based on their unique experiences and biases, which can lead to misunderstandings and misinterpretations that undermine clarity. An engineer or Drainage Superintendent may understand an engineer’s plan differently than a layperson with little or no technical engineering background. In this case, even if there is agreement about what was said, it is not obvious whether the communication was a request for an improvement of the Forsyth Drain under section 78 of the Act or a notice of non-repair under section 79 of the Act requesting maintenance and repair of the Forsyth Drain. It certainly does not constitute a petition to extend the Forsyth Drain upstream to incorporate the Wellington Street catch basin as a branch of the Forsyth Drain, as there is no prescribed Form 1.

108. The engineering expert for the plaintiff gives his opinion that the verbal and e-mail evidence is sufficient notice of non-repair of the Forsyth Drain for the purposes of section 79 of the Act.[37] He says it does not constitute a request for an improvement of the Forsyth Drain under section 78 of the Act. In his viva voce evidence, he was unable to articulate the indicia that would differentiate between them. In that evidence, he said that, when it comes to distinguishing between notice of non-repair under section 79 or a notice or petition under section 4 or section 78, he really doesn't distinguish. In his mind, if the municipality becomes aware that there is a problem, they need to take the appropriate management course of action, whether that be maintenance or repair, or whether that be Section 78 improvement. With respect, I disagree. When a person invokes the authority and remedies of the Drainage Act, that person has the onus of being clear with the municipality that rights or claims are being asserted under aegis of the Drainage Act and of providing clarity about the character of what is being claimed, ideally by reference to the applicable sections of the Act. A municipality should not be left to guess at the risk of significant liability exposure if it guesses incorrectly. In this case, the plaintiff seeks damages in the amount of $1,950,000.

109. Human memory is notoriously fallible. People can easily forget details, misremember events, or embellish facts, which complicates the ability to establish the trustworthiness of verbal accounts, particularly in legal contexts. In this case, there is confusion about when the plaintiff’s basement water was tested for chlorine. Nothing turns on when it was tested, but it illustrates the problem. Most verbal exchanges lack a permanent record, making it difficult to provide concrete evidence of what was said or intended or understood by the recipient. This absence of documentation can pose serious challenges in legal disputes, where proof of what was communicated in a conversation is important.

110. The meanings of verbal communication can hinge significantly on the context. Tone, body language, and situational elements impact how messages are understood, making it hard to determine the true intent behind spoken words or how it was perceived by the recipient. Language itself can be ambiguous. Words with multiple meanings or vague phrasing can lead to confusion and differing interpretations. For example, in this case, in her communication with the Municipality in September 2021 about the flooding of the York Street and the Wellington Street boulevards and of her property and basement, the plaintiff made no distinction between the catch basin on York Street, which was an element of the Forsyth Drain, and the catch basin on Wellington Street, which was not.

111. Emotions play a vital role in verbal interactions. Stress, anger, or excitement may obscure clarity and alter the reception of messages, increasing the risk of miscommunication.

112. To navigate these evidentiary challenges effectively, it is essential to supplement verbal communication with a permanent record of evidence. This approach is particularly important in the case of municipalities where there are often several layers of authority that need to be consulted and to give direction before municipal action can be taken. I’ll get into this more in the context of service on the head or clerk of the municipality. There is also the problem of turnover of municipal personnel over time; when personnel depart, they take with them the recollection of a conversation, and all that is left behind is whatever permanent record of the conversation was made at the time. For instance, Mr. Lima, the Middlesex Centre Director of Public Works and Engineering at the time of the May 2018 communications, has not been with the Municipality since 2019. Another problem is that sometimes a busy municipal employee will retain no recollection of a routine 15-minute discussion over the municipal reception counter or by telephone. If the person intended such a conversation to be a request for an improvement under section 78 of the Act or a notice of non-repair for the purpose of section 79 of the Act or a petition under the Act, they need to send a confirming e-mail, fax or letter delivered by courier, mail or by hand. This is not only a question of fairness to the municipality, but it is an accurate purposive interpretation of the verb “served” in the context of subsection 79(1) of the Act.

113. As indicated in paragraph 47 above, 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. This is consistent with the evidence given by the plaintiff’s expert witness. While such an informal approach is common, when necessary, the owner can serve a formal notice under section 79 of the Drainage Act, and once a municipality has 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. For something as critical as triggering potential municipal liability as a notice for the purposes of section 79 of the Drainage Act, if there is verbal communication of intent to give such a notice, it is necessary that such unwritten message be followed up promptly with a confirming e-mail, fax or letter that can be maintained as a permanent record. In those circumstances, the service of the confirming e-mail, fax or letter couriered, mailed or hand delivered would constitute the notice under section 79 of the Act and initiate the 45-day grace period.

114. Given the frailty of proving what was communicated verbally and the importance of the notice requirement, I am satisfied that the service of notice required by subsection 79(1) of the Act requires the delivery to the Municipality of a permanent record notice of non-repair by e-mail, fax, or letter that is couriered, mailed or hand delivered. If the information was initially conveyed orally, the notice of non-repair may be served in the form of a confirmation of what has been communicated verbally. The confirming permanent record served by physical delivery, e-mail, fax or mail constitutes the prerequisite notice of non-repair required by subsection 79(1) of the Act; to be clear, undocumented verbal communication does not constitute service of the prerequisite notice of non-repair required by subsection 79(1) of the Act.

115. As with all forms of documentary evidence, the context in which it was created shapes its interpretation. This includes the background and circumstances surrounding the documentation, including any unwritten, spoken statements that may have been uttered at the time, which may assist in understanding the meaning and implications of the documents in question. For example, in this case, the 2016 Delaware Stormwater Master Plan concluded that the Forsyth Drain did not have adequate capacity, not that it was out of repair. There is no evidence that the Forsyth Drain was out of repair. With that background knowledge, the most likely purpose of a formal Drainage Act notice about flooding in the vicinity of the intersection of York Street and Wellington Street would be a request for an improvement of the Forsyth Drain under section 78 of the Act.

116. Counsel for the plaintiff made submissions that the Forsyth Drain was out of repair by reason of the 2006 Engineer’s Report incorporating the Garden Avenue Branch. He submitted that the definition of repair in the Drainage Act involves restoring the drain to its original condition. He argues that the original condition is as described in the 1965 Engineer’s Report and that such condition cannot be restored after the adoption of the 2006 Engineer’s Report. On that basis, he argues that, by definition, the Forsyth Drain in the vicinity of the plaintiff’s property is out of repair. With respect, I disagree. After 2006, restoration of the Forsyth Drain to its original condition is the Forsyth Drain’s condition as described in the 1965 Engineer’s Report, as amended by the 2006 Engineer’s Report. By that standard, there is no evidence that the Forsyth Drain was out of repair. It did not have sufficient capacity to carry off water in the timely manner common in an urban setting, but there is no evidence that it was in disrepair.

117. With respect to whether a notice of non-repair for the purposes of section 79 of the Act may be served verbally, counsel for the plaintiff relies on paragraph 23 of a decision of Referee Waters in the case of White v Niagara Falls et al., 2024 ONDR 2[38]. This decision was rendered by Referee Waters on February 2, 2024 on a motion by the municipal respondents to dismiss the application. One of the issues was whether a sufficient notice of non-repair had been given to the municipalities for the purposes of section 79 of the Act. In paragraph 23 of his reasons, Referee Waters referred to the submissions of counsel for the applicant/responding party about the elimination of the “in writing” words from subsection 79(1) of the Act. As well, in paragraph 24 of his reasons, Referee Waters refers to the submissions to the contrary by counsel opposite. Referee Water’s decision about the sufficiency of the notice of non-repair does not address the question of the verbal service of notice; rather, he determines that by the time of procedural hearings in December 2012, based on the exchange of motion records themselves, the municipalities had received sufficient notice.

118. In this case, as indicated in paragraph 101 above, whether verbal communication is taken into account or not, the conclusion is that what was provided by the plaintiff to the Municipality in May 2018 and September 2021 did not constitute a sufficient notice to trigger or support liability under section 79 of the Act.

119. The consensus reached by the parties in this case should not be regarded as setting a precedent or establishing an expectation or standard for those operating in the Drainage Act world. To be clear, once again, undocumented verbal communication does not constitute service of the prerequisite permanent notice of non-repair required by subsection 79(1) of the Act.

120. This is at odds with the opinion of the plaintiff’s expert witness, Mr. Sidney Vander Veen, P.Eng., and is inconsistent with what he has instructed students seeking qualification as a Drainage Superintendent. For almost two decades until 2019, Mr. Vander Veen was the highly respected Drainage Coordinator with OMAFA. In that role, he was responsible for qualifying Drainage Superintendents to receive Provincial subsidization for their work as Drainage Superintendents, and to that end, he taught courses, the graduates from which would qualify for subsidy.

Service of Notice on the Head or Clerk and the Municipality

121. Section 79 of the Act requires that a notice of non-repair be served on “the head or clerk of the local municipality.” The office of the head of the council of a municipality is established by the Municipal Act. The head of the council is called the Mayor, Reeve, Warden and sometimes Chairman. The holder of that office is at the apex of the policy-making and legislative branch of the municipal government. The office of the clerk of the municipality is also established in the Municipal Act. The clerk is the cornerstone of the administration and operations of a municipality. Both the head of council and the clerk, or their deputies, attend all meetings of the municipal council.

122. Section 4 of the Act requires that a petition be filed with the clerk. In general terms, when the clerk receives a petition, the call goes out to the drainage engineer and arrangements are made to schedule a meeting of the council to consider the appointment of an engineer to respond to the petition. There are technical details required by the Act, but that is the gist of it.

123. In the same vein, if there is a request for improvement under section 78, after the clerk receives it, the drainage engineer is consulted, and arrangements are made to schedule a meeting of the council to consider the appointment of an engineer to respond to the request.

124. If the clerk receives a notice of non-repair under section 79 of the Act, one of the first calls is to the municipal solicitor because of the legal liability implications of such a notice. The drainage engineer and the Drainage Superintendent are also likely to be called in. There is nothing casual about handling a notice of non-repair.

125. The office of a Drainage Superintendent is established by and for the purposes of the Drainage Act. A Drainage Superintendent is not the clerk of the local municipality and, therefore, a Drainage Superintendent is not qualified to receive a notice of non-repair pursuant to section 79 of the Act. There is good reason why there is and should be this separation between a Drainage Superintendent and the clerk.

126. To explain, reference needs to be made to ADIP and the ADIP policies released in 2005, and particularly ADIP Policy 4.2(a) and Appendix A. The plaintiff’s expert witness, Sidney Vander Veen, P. Eng., produced the ADIP Policy.[39] As explained in ADIP Policy 4.3(b), in order for the salary of a Drainage Superintendent to qualify for Provincial subsidy, the time spent by the Drainage Superintendent must relate to the performance of eligible responsibilities. There is then a list of 29 eligible responsibilities in Appendix A to the ADIP Policy. Most of the 29 items are general in nature and provide a synopsis of the sorts of things a Drainage Superintendent might be expected to do according to the circumstances. As an example, item 3 speaks to reporting to the municipal council and keeping council informed about drainage matters.

127. Appendix A items 6 and 12 are particularly problematic if Mr. Vander Veen is correct that a notice of non-repair under section 79 of the Act can be given, verbally or otherwise, and be effective when communicated to the Drainage Superintendent. Those items are as follows:

128. Advise landowners of approaches that they might take to solve their drainage problems.

129. Advise the council and landowners of the procedures and appeal rights under the act.

130. It would be routine for a Drainage Superintendent to be approached about drainage problems because that is his job. Whether by e-mail exchange, discussion by telephone, or in person in the field, it is the function of the Drainage Superintendent to discuss drainage problems and to offer solutions, including options relating to petitions, formally requesting improvements and/or serving a notice of non-repair. The role of a Drainage Superintendent is described in general terms in paragraph 47 above in the context of a municipality’s management of its maintenance and repair mandate under the Drainage Act.

131. With respect, if Mr. Vander Veen is correct, then any such discussions about options for solutions could potentially be construed to be or later interpreted as notice triggering a liability risk under section 79 of the Act. If the Drainage Superintendent intentionally or subconsciously avoids such discussions or is circumspect and evasive to avoid the risk of liability, the result hampers the Drainage Superintendent’s efforts to be helpful to ratepayers and to the municipality and is counter-productive to the intended role of a Drainage Superintendent.

132. There is another adverse consequence of notice, verbal or otherwise, under section 79 of the Act being given to a Drainage Superintendent. This was raised in the submissions of counsel for the Municipality. When a Drainage Superintendent is asked about drainage problems and is canvassing drainage solutions, there may be situations when a problem can be addressed short of a full-scale repair exercise. Take the hypothetical of the clean out of an open ditch drain that would involve restoring grades and clearing brush from the side slopes and bottom of the drain at a hypothetical cost of $50,000. That is the requirement of the Act; the drain is to be restored to the specifications of the most recent engineer’s report. If that discussion is to be taken as notice of non-repair for the purposes of section 79 of the Act, then a full-scale restoration is what the Act requires the Drainage Superintendent to do; there is no flexibility or option to do otherwise without risking liability under section 79 of the Act. Now, in that situation, if the land owner is concerned about the cost and he and the Drainage Superintendent share the thought that the unplugging of a downstream culvert under the municipal road allowance might go a long way to alleviate the drainage problem, it should not be amiss for them to try that solution by having the Drainage Superintendent ask the road department to clean out the culvert at little or no cost to the drain. The Drainage Superintendent should not be constrained by information that could be construed as a notice, verbal or otherwise, of non-repair from pursuing practical, less expensive solutions in consultation with those affected. The Drainage Superintendent should not be put in an all-or-nothing position; that is the corollary of the notation that communication with a Drainage Superintendent can be construed to be notice of non-repair for the purposes of section 79 of the Act.

133. The Drainage Superintendent should not be inhibited by worries that anything conveyed to him may potentially be or later interpreted as a notice of non-repair, which may expose the municipality to civil liability consequences. He should be helpful to those he deals with by explaining the appeal rights and procedures but also by making it clear that, to start a formal Drainage Act process, a petition, request for improvement or notice of non-repair, as the case may be, must be given to the municipal clerk electronically or by delivery.

134. I conclude this section of these reasons by reflecting on what was said by Justice Ellies in the case of Hud v. West Nipissing, 2011 ONSC 6294. As to the question of the service of the notice required under section 79 of the Drainage Act, at paragraph 14 she said:

14There is no evidence before this court of the position occupied by Louise Cote, the person to whom the plaintiff’s message of April 25, 2007 was sent. However, it is clear from the evidence that the message was received by the Municipality very shortly after it was sent and that, regardless of her position, Ms. Cote provided it to the appropriate people at the Municipality. Therefore, I find that this aspect of the notice requirement was fulfilled.

133. I take this to mean that there is some practical flexibility about service. The delivery to the municipal office receptionist of an envelope with the clerk’s name on it will be sufficient; similarly, the mailing or couriering of an envelope with the clerk’s name on it will be effective; the same for e-mail and faxes. For reasons explained above, service on the Drainage Superintendent is not to be regarded as service on the clerk, head of council or the municipality. That does not prevent the Drainage Superintendent from agreeing to carry the envelope or document to the clerk for service if asked. The point is, there needs to be evidence that it was received by the clerk or head of council, who are the appropriate people at the Municipality. The way in which the notice of non-repair gets to the clerk or head of council is less important than that there is evidence that it did get to one of them promptly in order to commence the 45-day grace period without any delay.

134. In this case, there is no such evidence. Neither the Drainage Superintendent nor the Director of Public Works and Engineering recognized that the plaintiff had or intended to initiate any sort of Drainage Act process or to give any kind of formal Drainage Act notice, so neither reported to the other nor to the clerk of the Municipality in May 2018 or in September 2021. The clerk and head of council only became aware when this action was commenced in September of 2023 and when the plaintiff appeared before Council on September 20, 2023.

Section 32 of the Drainage Act

135. The plaintiff pleads, in the alternative, that section 32 of the Drainage Act contemplates that a cost-benefit analysis may be performed to compare the cost of improvements with the potential injury to land and property. Since the Municipality chose to forego improvements to the Drain, the plaintiff pleads that pursuant to section 32 of the Drainage Act, the Municipality is strictly liable for failing to have an engineer update its assessment schedule to provide her with an allowance which would alleviate her pecuniary losses suffered from 2018 to 2021.

136. Section 32 of the Act provides as follows:

Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low-lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low-lying lands in respect of such injuries.

137. Section 32 concerns the preparation by an engineer of a report for drainage works under the Act. If the engineer determines that it is preferable to compensate the owner of low-lying lands rather than size the drainage works and extend the drainage works to a sufficient outlet, the engineer may, in his report, fix the amount of the compensation. The amount of the compensation paid to the owner of the low-lying lands at the bottom end of the drainage works is added to the cost of the drainage works project and is assessed and paid for in accordance with the assessment schedule for the drainage works. The assessed owners and the owner of the low-lying land have rights of appeal to the Drainage Tribunal. To the extent that it may have any application in these circumstances, section 32 would have been a factor when the 1965 Engineer’s Report and the 2006 Engineer’s Report were being prepared – and it wasn’t. That said, section 32 of the Act does not create a statutory cause of action in the way that section 79 of the Act does.

138. The plaintiff pleads that the Municipality had an obligation to commission an engineer’s report to improve the Drain and to include an allowance for her property as low-lying land. As previously mentioned in paragraph 49 above, the Municipality has no obligation to initiate an improvement under section 78 of the Act and is only required to proceed under section 78 of the Act if someone asks for an improvement.

139. Quite simply, the plaintiff has no cause of action based on section 32 of the Drainage Act.

Common Law Injurious Affection

140. The plaintiff pleads that her property's market value has been reduced due to its susceptibility to flooding and the placement of the sidewalk and catch basin closer to the house.

141. Let me start with a couple of observations. Subsection 2(3) of the Expropriations Act provides that “This Act does not apply to the use of or injury to land authorized under the Drainage Act for the purposes of a drainage works constructed under that Act or to any proceedings in connection therewith.” There was no taking of land from the plaintiff required for the 2022 Road Reconstruction Works, so there is no claim for compensation on that account. Such a claim would have been asserted via the Expropriations Act because no part of the 2022 Road Reconstruction Works was undertaken under the authority of the Drainage Act.

142. Section 2(1) of the Expropriations Act provides that “Despite any general or special Act, where land is expropriated or injurious affection is caused by a statutory authority, this Act applies.” “Statutory authority is defined to mean “the Crown or any person empowered by statute to expropriate land or cause injurious affection;”. The Expropriations Act definition of “injurious affection” provides as follows:

“Injurious affection” means,

(b) where the statutory authority does not acquire part of the land of an owner,

(i) such reduction in the market value of the land of the owner, and

(ii) such personal and business damages,

resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,

143. In my respectful opinion, when the Expropriations Act applies, it supersedes and replaces common law claims for injurious affection. This opinion is consistent with the Divisional Court decision in the case of Antrim Truck Centre Ltd. V. HMQ In Right of Ontario, as represented by the Minister of Transportation, 2010 ONSC 304 at paragraph 65 of that decision. The decision was released on January 12, 2010 and was authored by Madame Justice Wilson.

144. The Court of the Drainage Referee has no jurisdiction or authority to address questions of damages for injurious affection under the Expropriations Act. Leaving aside the matter of the Referee’s jurisdiction, claims for injurious affection must result from the construction and not the use of the works. There is no pleaded claim related to the construction in 2022 of the road works, sidewalks and catch basins.

145. The plaintiff pleads that the market value of her property has been reduced on account of the susceptibility to flooding as a result of the installation of the 2022 Road Reconstruction Works and that she should be compensated therefor. The new evidence from the summer of 2024 would be a claim for injurious affection without a taking of land to be pursued under the Expropriations Act because, again, the 2022 Road Reconstruction Works were not undertaken under the authority of the Drainage Act. I doubt this claim would pass the “resulting from the construction and not the use of the works” test, but that is for the Ontario Land Tribunal to decide under the Expropriations Act.

146. With respect to the sidewalk and catchbasin being placed on the road allowance, to the extent their existence diminishes the market value of the plaintiff’s property that is the subject of a claim for injurious affection without a taking of land to be pursued under the Expropriations Act because, again, the 2022 Road Reconstruction Works were not undertaken under the authority of the Drainage Act. Again, I doubt these claims pass the “resulting from the construction and not the use of the works” test, but that is for the Ontario Land Tribunal to decide under the Expropriations Act.

147. The plaintiff pleads that I have the authority to deal with compensation for injurious affection by virtue of clause 106(1)(f) of the Drainage Act. Clause 106(1)(f) is set out in paragraph 152 below. It gives original jurisdiction to the Referee over any matter or thing in relation to which an application may be made to him or her under the Act. With respect, the Drainage Act does not authorize an application to be made to the Referee to order compensation for injurious affection arising from a municipal road works project authorized and completed under the authority of the Municipal Act and which is therefore properly governed by the Expropriations Act.

148. The plaintiff submits that I have jurisdiction with respect to the section 79 statutory cause of action claims, so the plaintiff’s claims for common law injurious affection are “in relation” to the application under section 79 of the Act. With respect, clause 106(1)(f) does not give the Court of the Drainage Referee carte blanche to assume jurisdiction and authority to adjudicate matters that are outside of and unrelated to the Drainage Act just because a claimant couples it in the same statement of claim or notice of application with something over which the Court has jurisdiction under the Act. It seems to me that “any matter or thing in relation to which application may be made to him or her under the Act” allows the Referee to deal with ancillary or accessory matters in order to give effect to or facilitate the result of the application made under the Drainage Act. In this case, the plaintiff’s claim for common law injurious affection is separate and distinct from the plaintiff’s claims under section 79 of the Act for non-repair of drainage works authorized under the Drainage Act. The common law injurious affection claim is for the alleged reduction in her property's market value due to its susceptibility to flooding and the placement of the sidewalk and catch basin closer to the house as a consequence of the 2022 Road Reconstruction Works, which were undertaken under the authority of the Municipal Act, not the Drainage Act, and is to be pursued under the Expropriations Act.

Negligence

149. In the same vein, section 79 of the Drainage Act grants the Drainage Referee limited jurisdiction to hear damage claims resulting from the non-repair of drainage works and under clause 106(1)(c) of the Act with respect to anything done or purported to have been done under this Act. It does not grant general jurisdiction to adjudicate common law negligence claims.

150. In broad terms, the classic common law tort of negligence is based on duty of care, breach of standard, causation, damages, and lack of remoteness. The Court of the Drainage Referee has no jurisdiction or authority with respect to this tort.

151. When the Court of the Drainage Referee has jurisdiction conferred by the Drainage Act, there may be circumstances in which the Court has to evaluate whether there has been a breach of a standard of care or a falling below some form of reasonable expected minimal level of competent conduct. In that context, within the jurisdiction and authority conferred by the Drainage Act, there may be a discussion of negligent conduct or behaviour. But that is not to be conflated with a classic common law tort of negligence, which is beyond the jurisdiction of the Court of the Drainage Referee.

152. The plaintiff pleads that her damages claims based on the tort of negligence are intra vires the Referee by virtue of clause 106(1)(c) and clause 106(1)(f) of the Act; they are as follows:

106(1) The referee has original jurisdiction,

(c) To determine claims and disputes arising under the Act, including, subject to section 120, claims for damages with respect to anything done or purported to have been done under this Act or a predecessor of this Act or consequent thereon;

(f) over any other matter or thing in relation to which application may be made to him or her under this Act.

153. The plaintiff submits that I have jurisdiction to deal with damages for negligence claims “with respect to anything done or purported to have been done under this Act” or if they are “in relation” to an application under section 79 of the Act.

154. Counsel for the plaintiff refers to a number of cases to support this submission, and I will refer to them below:

(a) Balvert v. Colchester South (Township), 1995 ONDR 2

(i) This is a decision of Referee D.A. O’Brien Q.C., issued on July 12, 1995. It relates to the costs of rectifying a badly constructed drainage works authorized under the Drainage Act. That work was done in 1982. Amongst other things, the corrugated steel pipes were installed too low, and the side slopes of the open ditch portions were too steep, resulting in unstable side slopes. There were also issues about the engineer’s report not taking into account soil types and, therefore, the risk of instability of the drain banks.

(ii) The municipality assumed responsibility for the supervision of the construction work in 1982 via its Drainage Superintendent.

(iii) Thereafter, three engineering reports identified the problems and recommended ways of rectifying the deficiencies. The municipality incurred expenses to address the problems and assessed those expenses, together with the cost of the engineering reports, to the owners in accordance with the assessment schedule from the most recent engineer’s report on the drain. Some of those assessed owners appealed to the Referee and asked that he exercise authority under subsection 118(2) of the Act to require the municipality to pay those costs out of general funds rather than by way of assessment to the drain.

(iv) Subsection 118(2) must be read in the context of subsection 118(1), which speaks of damages and costs payable by a municipality and arising from proceedings under the Act. In this case, the proceedings are under clause 106(1)(c) of the Act to determine claims and disputes arising under the Act, including damages with respect to anything done or purporting to be done under the Act. The original drain construction was done under the Act, as was the remedial work.

(v) The default position is established by subsection 118(1) of the Act. The amounts are to be levied on the landowners by way of assessment for the drain. Subsection 118(2) of the Act goes on to say that the Referee may order that those amounts be paid out of the general municipal funds rather than by the drain. The Referee may exercise discretion to make such an order if there has been improper action, neglect, default or omission by the municipality.

(vi) It is in the context of subsection 118(2) of the Act that there is a discussion of negligence by Referee O’Brien. He determined that the landowners should not be assessed for the remedial work done on the drain, the need for which he exclusively attributed to the failure of the Drainage Superintendent to supervise properly the construction work done in 1982.

(b) Courtney v. Huron (Township), 1998 ONDR 5

(i) This is a decision of Referee D.A. O’Brien, Q.C., issued December 29, 1998. It concerns a claim made for negligence in the maintenance and operation of a municipal drain. In his decision issued on March 17, 1997, reported as Courtney v. Huron (Township), 1997 ONDR 2, Referee O’Brien decided, based on section 111 of the Act, that claims for damages prior to May 27, 1991 were statute barred. The May 27, 1991 date is two years prior to the filing of the appeal on May 27, 1993.

(ii) The drain was constructed in 1964, with extensions constructed in 1966 and 1978. It was a largely open ditch. In 1992, it became evident that problems existed with the drain due to a maintenance operation (cleanout) in 1983. The drain was deepened below the design grade, and this created problems with: bank erosion, grade level crossings and rocks removed from the drain bottom and placed on the banks.

(iii) Remedial work was proposed in an engineer’s report, approved after adjustments ordered by the Tribunal, and completed in 1996. The Referee found that the municipality was negligent in connection with the 1983 cleanout. Again, in this case, the proceedings are under clause 106(1)(c) of the Act to determine claims and disputes arising under the Act, including damages with respect to anything done or purporting to be done under the Act. The 1983 drain cleanout was done under the Act.

(iv) The damages related to crop losses in areas adversely affected by the post-1983 cleanout drain pending completion of the remedial work.

(v) Again, Referee O’Brien states that he is exercising authority under subsection 118(2) to award damages from the municipality's general funds.

(c) Hape v. Essex (Town), 1999 ONDR 3

(i) This is a decision of Referee D.A. O’Brien, Q.C., issued September 23, 1999. It involves claims for damages arising from substandard work done by a contractor who was carrying out drainage works authorized by a 1990 engineer’s report. The engineer’s report called for a clean-out and an improvement of the drain. The contractor’s work was completed in 1991. Almost immediately, there were complaints.

(ii) In 1998, an engineer prepared a report calling for extensive remedial work at considerable cost. There were appeals to the Drainage Tribunal. Before the Drainage Tribunal, submissions were made about the municipality being negligent in its supervision of the contractor’s work. The Tribunal deferred to the Referee allegations of negligence, damages and who should pay any damages.

(iii) In this case, again, the proceedings are under clause 106(1)(c) of the Act to determine claims and disputes arising under the Act, including damages with respect to anything done or purporting to be done under the Act. The clean-out and improvement of the drain were authorized by the Act under the authority of the 1990 engineer’s report, and the municipality’s supervision of the contractor’s work was or should have been done under the Act.

(iv) The Referee found the municipality was negligent in failing to properly supervise and in failing to pursue the contractor for the deficiencies in the construction. He then awarded as damages a portion of the applicant’s benefit assessment under the engineer’s report, representing the cost of restoring his land adjacent to the drain. He went on to exercise his authority under subsection 118(2) of the Act to order that the damages be paid out of the general funds of the municipality.

(d) Ireland v. West Elgin (Municipality), 2006 ONDR 3

(i) This is a decision of Referee R.G. Waters issued November 17, 2006. This is a claim for damages under section 79 of the Act for non-repair of a drain. Referee Waters decided that any damages arising before notice of non-repair was given by a solicitor’s letter were not eligible for recovery, whereas some after that letter were.

(ii) He decided that written notice of non-repair was required and that constructive notice, verbal requests and the observation of flooding did not constitute sufficient notice for the purposes of section 79 of the Act.

(iii) With respect to the damages that were recoverable, he ordered that they be paid out of the general funds of the municipality pursuant to subsection 118(2) of the Act. It was in the context of subsection 118(2) of the Act that Referee Waters determined that the municipality’s response time was at an unacceptable and negligent level. Negligence does not have a bearing upon liability under the strict liability statutory cause of action under section 79 of the Act; it is only relevant to the question of whether the damages are paid by assessment to the drain or from the general funds of the municipality by order of the Referee under clause 118(2) of the Act.

(e) Kelch v. Romney (Township), 1996 ONDR 4

(i) This is a decision of Referee D.A. O’Brien, Q.C. issued December 31, 1996. It is a claim for damages for negligence by the municipality. The first and primary issue in this case was whether notice had been given under section 79 of the Act. Referee O’Brien determined that it had not.

(ii) The secondary issue was whether subsection 118(2) of the Act supported a separate cause of action in negligence. The allegation was that the 1962 engineer’s report on the drain specified an inadequately sized culvert under a county road. Referee O’Brien determined that there was no negligence. He simply did not address himself to the matter of his authority to deal with negligence under subsection 118(2) or, for that matter, under clause 106(1)(c) of the Act to address claims and disputes arising under the Act, including damages with respect to anything done or purporting to be done under the Act.

(f) Steeves v. Montague (Township), 2000 ONDR 11

(i) This is a decision of Referee D.A. O’Brien, Q.C. issued July 17, 2000. It involves a claim for damages which resulted from work conducted by the municipality for the purpose of cleaning out a municipal drain. The claim was advanced under clause 106(1)(c) of Act. The work done was to clean up after the January 1998 Ice Storm event in Eastern Ontario. The Province offered funding for such projects, and the work was done by the municipality under the authority of section 74 of the Act. There was to be no cost to the landowners as it was being funded by the senior level of government.

(ii) The complaint was that the municipality’s contractor used a hi-hoe and cut down trees to facilitate its operation. It was said that for the purposes of clause 106(1)(c), a municipality is liable for damages caused by its negligence in undertaking anything done or purporting to be done under the Act. Referee O’Brien then goes on to find that there was no negligence with respect to the way in which the clean-up work was done.

(iii) Referee O’Brien, however, found fault with the municipality's communication with the appellants when the clean-up work was underway. At the same time, he criticized the appellants for not informing themselves about customs and practices relating to municipal drains in general and, in particular, the entitlement of municipal contractors to access properties to work on municipal drains. He goes on to say he is satisfied that no significant losses were proven. He then refers to the cost of replacing trees without linking the causation of the loss of trees to faulty municipal communication and concludes by awarding $1,000 in damages. I confess to some confusion about the logic in this latter part of Referee O’Brien’s reasons.

155. None of these cases supports the proposition that the Court of the Drainage Referee has jurisdiction and authority to adjudicate a classic common law tort cause of action for negligence beyond what is grounded in the jurisdiction and authority found in the Drainage Act.

156. As indicated in paragraph 151 above, negligence, in the sense of a standard of conduct or failing to meet some form of reasonable expected minimal level of competent conduct, does not have a bearing upon liability under the strict liability statutory cause of action under section 79 of the Act; it is only relevant to the question of whether the damages are paid by assessment to the drain or from the general funds of the municipality by order of the Referee under clause 118(2) of the Act.

157. Clause 106(1)(c) of the Act requires that any negligence, in the sense of standard of conduct, is in connection with something done or not done under the Act, it does not give jurisdiction to award damages for actions that are outside of and unrelated to the Drainage Act just because a claimant couples it in the same statement of claim or notice of application with something over which the Court has jurisdiction under the Act. Similarly, with respect, clause 106(1)(f) of the Act does not give the Court of the Drainage Referee carte blanche to assume jurisdiction and authority to adjudicate matters that are not rooted in or related to the Drainage Act just because a claimant couples it in the same statement of claim or notice of application with something over which the Court has jurisdiction under the Act.

158. The plaintiff has made numerous allegations of negligence. In some way, they have to be connected to something done or purported to have been done under the Act or a predecessor of the Act or consequent thereon, to paraphrase clause 106(1)(c). Many of those allegations are variations on the theme that the Municipality neglected to maintain and repair the Forsyth Drain or neglected to make improvements to it.[40] With respect to those allegations of non-repair, as mentioned in paragraph 51 above, the essence of subsections 79(1) and 79(2) of the Act is that the Municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been given 45 days’ notice sufficient to satisfy the requirements of subsection 79(1) of the Act; and no such notice was given in this case with respect to the damage claims being asserted as concluded in paragraph 101 above. With respect to the allegations about not undertaking an improvement of the Forsyth Drain, as mentioned in paragraph 67 above, the Municipality is not obligated to initiate an improvement under section 78 of the Act and is only required to proceed if someone asks for an improvement. In this case, neither the plaintiff nor the Municipality regarded nor now regards the May 2018 e-mails or the September 22, 2021 e-mail traffic as such a request for improvement.

159. The plaintiff pleads that the Municipality

(a) Failed to enforce the Middlesex Centre’s Site Alteration By-law no. 2016-087 authorized by the Municipal Act and failed to issue an order to discontinue the activity of alteration of the grade of land near the plaintiff’s property, including those owned by the Caines, which alterations increased the amount of surface water flowing onto the plaintiff’s property.[41]

(b) failed to issue a work order pursuant to section 445 of the Municipal Act, requiring the correction of the alteration of the grade of land near the plaintiff’s property.[42]

(c) improperly issued permit no. MMC-2020-652 and permit no. MMC-2020-686, presumably in connection with the Municipality’s Site Alteration By-law enacted pursuant to provisions of the Municipal Act, allowing a site alteration permit(s) for the alteration of the grade of land, including on those lands owned by the Caines.[43]

(d) permitted a sewage system to be operated and maintained on the Caines' lands that is not in accordance with the Building Code Act.[44]

(e) approved a minor variance pursuant to the Planning Act allowing a building to be constructed and/or developed on the Caines' lands that exceeded the overall size of 59 square metres for all residential accessory buildings.[45]

(f) failed to require as a condition to approval of a plan for development on lands near the property that the owner of said lands, the Caines, provide and maintain grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and wastewater from the said land and from any buildings or structures thereon, in accordance with section 41 of the Planning Act.[46]

(g) failed to maintain the highway and the road allowance abutting the property in a state of repair pursuant to section 44 of the Municipal Act such that excess flooding and water accumulation occurred on the property.[47]

160. Whatever was done or not done under the authority of these other statutes is not something “done or purported to have been done under this Act or a predecessor of this Act,” to quote from clause 106(1)(c) of the Act, nor is it anything “in relation to which application may be made to the Referee under this Act,” to quote clause 106(1)(f) of the Act. The Court of the Drainage Referee has no jurisdiction.

161. Even if there is some causal connection between what was done or not done and the adequacy of the Forsyth Drain to quickly accommodate water flows, that goes to the question of an improvement under section 78 of the Act and/or maintenance and repair under section 79 of the Act. And, as previously mentioned in paragraph 67 above, the Municipality has no obligation to initiate an improvement under section 78 of the Act and is only required to proceed under section 78 of the Act if someone asks. As mentioned in paragraph 51 above, the essence of subsections 79(1) and 79(2) of the Act is that the Municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been given a sufficient 45-day notice in accordance with subsection 79(1) of the Act; and no such notice was given in this case with respect to the damage claims being asserted as concluded in paragraph 101 above.

162. Finally, the plaintiff pleads that the Municipality’s employees were negligent in that they made statements and omitted information that misled the plaintiff into believing that the Municipality was not responsible for maintaining and repairing the Drain.[48] In her Reply pleading, the plaintiff says that it was not until April 17, 2023, when she took legal advice, that she learned of the Municipality’s significant responsibilities under the Drainage Act.[49] She pleads that the Municipality neglected to explain the Drainage Act to her and her rights and opportunities under the Act.

163. The plaintiff is a layperson residing in the urban setting of the community of Delaware. While many in the farming community will have familiarity with the Drainage Act and municipal drains, the plaintiff had no understanding that there is a difference between storm sewers and municipal drains or, in this case, that one catchbasin is part of a municipal drain, and the other is not. Even for those steeped in the lore of the Drainage Act, it is sometimes a struggle to differentiate between what is a notice of non-repair under section 79 of the Act and a request for improvement under section 78 of the Act or when a petition under section 4 of the Act is required; and then to understand the different processes and procedures associated with each. The plaintiff would not have comprehended any of these things.

164. The Municipality’s Director of Public Works and Engineering and Drainage Superintendent would have that sort of understanding of the Drainage Act and knowledge of the 1965 Engineer’s Report, the 2006 Engineer’s Report and the 2016 Delaware Stormwater Master Plan. They would also have been aware that the 2016 Delaware Stormwater Master Plan recommended replacing the relevant parts of the Forsyth Drain and that they were in the early stages of planning, including budgeting for what would become the 2022 Road Reconstruction Works. They would have known that, pending completion of the 2022 Road Reconstruction Works, roadside ponding at the intersection of York Street and Wellington Street was foreseeable because the design capacity of the Forsyth Drain was insufficient to carry off stormwater flows as quickly as is the norm for urban setting.

165. In those circumstances, the plaintiff called the Director of Public Works and spoke of water in her basement in May of 2018. In her viva voce evidence, the plaintiff says she talked about water rising in her basement because the power was out, and the sump pump was not working; she made no mention of any ponding of water on the south boulevard of Wellington Street or the west boulevard of York Street in the vicinity of her property. The Director was responsive about the water service to the house and did not allude to the Forsyth Drain as described in the 2016 Delaware Stormwater Master Plan because he was not told of any ponding of water on the boulevards. And there is no evidence that there was any such ponding in May 2018.

166. At the same time, in May 2018, the plaintiff asked the Drainage Superintendent for some history about drainage in the vicinity. The Drainage Superintendent was not told about basement flooding or any ponding of water on the boulevards adjacent to the plaintiff’s property. He was unaware of the ongoing communication the plaintiff was having with Mr. Lima. He e-mailed electronic copies of the plans and profiles from the 1965 Engineer’s Report and the 2006 Engineer’s Report with no explanation, elaboration, or reference to either the Drainage Act or the 2016 Delaware Stormwater Master Plan.

167. This was not helpful to a layperson such as the plaintiff. That said, what should the Municipality have communicated in the circumstances? The allegation is that in May 2018, the Municipality’s Director of Public Works and Engineering raised the issue about her water service leakage vs groundwater infiltration into her basement. It is alleged that this amounted to misdirection when, by reason of the 2016 Delaware Stormwater Master Plan, he knew or ought to have known that the principal contributing factor related to inadequacies of the Forsyth Drain. Mr. Lima was responsible for all of the Municipality’s conventional municipal infrastructure governed by the Municipal Act, such as municipal water supply, treatment and distribution systems in the Municipality’s Urban Settlement Areas and Community Settlement Areas, sanitary sewers and wastewater treatment systems in most of those communities, storm sewers and stormwater management, as well as roads throughout the Municipality. He would have been aware of the Drainage Act and its implications, as well as the 2016 Delaware Stormwater Master Plan and proposals for its implementation. But in May 2018, when he got the call from the plaintiff about her flooded basement and was not told about any flooding of adjacent boulevards, it is not surprising that his reaction was concern for the integrity of the municipal water distribution system in Delaware, as reflected in his e-mail communication to the plaintiff on May 8, 2018. I do not fault Mr. Lima for focusing on whether the source of the water in the basement was the Municipality’s water system, and in the absence of evidence that he was told of flooding of boulevards, or indeed that there was such flooding, I do not fault Mr. Lima for not delving into questions about the Forsyth Drain and Drainage Act.

168. The Drainage Superintendent is a different matter. In response to the plaintiff’s May 2018 request for a history of drainage, as mentioned, the Drainage Superintendent e-mailed her the plans and profiles from the 1965 Engineer’s Report and the 2006 Engineer’s Report with no explanation or elaboration. These plans and profiles are technical engineering drawings. To someone trained in engineering, these documents would have conveyed important information that the plaintiff claims was not disclosed. However, it’s understandable that a layperson may not fully grasp the meaning and implications of these plans and profiles.

169. I have struggled with what the Drainage Superintendent should have done in response to the plaintiff’s May 2018 request for a history of drainage in the vicinity of her then recently purchased home. Should he have provided the 1965 Engineer’s Report (12 pages with the plan and profile attached at the back), the 2006 Engineer’s Report (12 pages with the plan and profile attached at the back), the 2016 Delaware Stormwater Master Plan (496 pages), a copy of the Drainage Act, Government of Ontario Central Forms Repository Form 003-0173 entitled “Petition for Drainage Works by Owners - Form 1”, Form 003-0202 entitled “Notice of Request for Drain Major Improvement Drainage Act” and Form 003-0202e entitled “Notice of Request for Drain Maintenance and/or Repair”? Had he done that, she would have been buried in paper and, as a layperson, would have only a marginally better grasp of her situation. However, it might have made more of an impression on her of the need to seek engineering or legal counsel. That is hypothetical speculation in the same vein as pondering what the Drainage Superintendent could or should have done.

170. I have considered the duties of the Drainage Superintendent, as found in subsection 93(2) of the Act. Nothing in the list of duties suggests that he has an obligation to educate members of the public about municipal drainage under the Drainage Act, either generally or with respect to any particular municipal drain. The plaintiff asserts that the Municipality had a duty to provide her with legal and engineering counsel in May 2018 equivalent to what she received for the first time on April 17, 2023, and that the Municipality’s failure to do so was negligent[50]. With respect, I disagree that the Municipality has such a duty to any of its ratepayers. The Drainage Superintendent and the Municipality are not under a duty to educate the plaintiff about the Drainage Act and the Forsyth Drain, much less give legal advice.

171. The plaintiff’s expert witness, Mr. Sidney Vander Veen, P.Eng., referred to the “duties” of a Drainage Superintendent as described in the ADIP policies released in 2005[51], and particularly ADIP Policy 4.2(a) and Appendix A. ADIP Policy 4.2(a) provides:

The primary responsibility of the drainage superintendent is to maintain, repair and operate the municipality's drainage systems constructed under the Drainage Act. The superintendent's responsibilities may also include other duties related to municipal drains. Appendix A describes the possible duties of the drainage superintendent. The superintendent's time performing these duties is eligible for grants under Section 85(b) of the Drainage Act.

172. ADIP Policy 4.3(b) provides that

The salary of a drainage superintendent claimed for grant must only be related to the time spent by the approved superintendent performing eligible duties of the superintendent.

173. ADIP Appendix enumerates a list of 29 eligible responsibilities, styled “duties,” which are eligible for subsidy[52]. That list of 29 items is prescribed for subsidy eligibility; beyond that, at best, it is a guidance document. It does not establish and is not intended to establish standards of conduct for Drainage Engineers in the context of liability claims against the employing municipality. To the extent that Mr. Vander Veen suggested that those “duties” represented such standards, respectfully, he is misguided.

174. The question of his response to the plaintiff needs to be considered from the perspective of the Drainage Superintendent at the time. Mr. Anderson was responding to a request for drainage history he received during the evening of May 7, 2018. He had no knowledge of the plaintiff’s power outage, her sump pump stoppage or that her basement was taking on water. He had no awareness of the communication the plaintiff was having with Mr. Lima. He had no information that there was ponding of water on the boulevards on the west side of York Street or the south side of Wellington Street. In that information vacuum, the next morning, he e-mailed the plaintiff electronic copies of the plans and profiles from the 1965 Engineer’s Report and the 2006 Engineer’s Report. With a clearer vision of hindsight, it can be said that his response was not perfect. Nonetheless, Mr. Anderson’s response met the essential standard of conduct to be expected from a Drainage Superintendent.

175. Also, with the same clearer vision of hindsight, it might have been better had the plaintiff made an effort to inform herself about the plans and profiles that had been provided to her in May of 2018. It is likely that those inquiries would have led to the Drainage Act; she might then have become aware of the Municipality’s responsibilities under the Drainage Act. Had she retained an engineer or lawyer in 2018 shortly after receiving the plans and profiles, she could have been differently prepared to deal with the Municipality about the flooding situations in 2019, 2020 and September 2021. It appears that she did not seek that counsel until April 17, 2023.

176. The Court of the Drainage Referee does not have the jurisdiction to adjudicate classic common law tort of negligence claims. Any consideration of negligence must be within the context of something done or not done under the Drainage Act, to quote clause 106(1)(c) of the Act. Even if the communication in this case between the plaintiff and Municipal staff is sufficiently connected to the Act, the plaintiff has not made any allegations that constitute negligence.

Conclusion

177. For the reasons found in paragraph 101 above, the plaintiff’s claims alleged under section 79 of the Drainage Act are not sustainable for want of sufficient notice to the Municipality. As mentioned in paragraph 139 above, the plaintiff has no cause of action based on section 32 of the Drainage Act. For reasons set out in paragraphs 143 and 144 above, the plaintiff’s claims for damages for common law injurious affection must be asserted under the Expropriations Act, and the Court of the Drainage Referee has no jurisdiction or authority. As stated in paragraph 149 above, the Drainage Act does not confer on the Court of the Drainage Referee jurisdiction or authority to deal with the plaintiff’s claims for damages for common law negligence, and, as indicated in paragraph 176 above, if there was jurisdiction, the plaintiff has not pleaded any allegation which constitutes negligence.

178. The action must, therefore, be dismissed.

179. By way of addendum, during final arguments, counsel made submissions about limitation periods. In the circumstances, those submissions need not be addressed and are not.

Costs

180. As for costs, if the parties are unable to agree, each party may make brief written submissions to the presiding Acting Drainage Referee within 30 days

Dated at London this April 28, 2025.

Andrew C. Wright Acting Drainage Referee

1Notice of Study Commencement on page 570 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit sworn January 15, 2025.

2Notice of Completion on page 356 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit sworn January 15, 2025.

3From page 354 to page 850 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit sworn January 15, 2025.

4on page 635 of Exhibit No. 10 being Sidney Vander Veen’s Affidavit, sworn January 15, 2025.

5on page 447 of Exhibit No. 10 being Sidney Vander Veen’s Affidavit, sworn January 15, 2025.

6on page 545 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

7on page 328 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

8on pages 550 and 551 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

9on page 541 to page 545 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

10on pages 490 and 493 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

11on page 492 of Exhibit No. 10 being Mr. Vander Veen’s Affidavit, sworn January 15, 2025.

12Page 17 of Exhibit “D” to Exhibit No. 8, being the plaintiff’s affidavit sworn on January 15, 2025.

13Page 15 of Exhibit “C” to Exhibit No. 8, being the plaintiff’s affidavit sworn on January 15, 2025.

14Pages 12 and 13 of Exhibit “B” to Exhibit No. 8, being the plaintiff’s affidavit sworn on January 15, 2025.

15Tab 179 of Exhibit No. 4, being a compilation of the plaintiff’s productions provided with the plaintiff’s Affidavit of Documents sworn January 30, 2024.

16Page 11 of Schedule A to the plaintiff’s Affidavit of Documents sworn January 30, 2024.

17Page 328 of Exhibit “F” to Exhibit No. 10, being Sidney Vander Veen’s affidavit sworn on January 15, 2025.

18Page 15 of Exhibit “C”, page of Exhibit “D”, pages 49 to 53 of Exhibit “I” to Exhibit No. 8, being the affidavit of the plaintiff, sworn January 15, 2025

19Pages 102 and 103 of Exhibit No. 7, being the Municipality’s Motion Record, under Tab 2, being the affidavit of Dan Anderson, sworn December 2, 2024.

20Parts of this decision have been appealed and are under reserve by the Divisional Court.

21Exhibit 1, page 1 of the 1965 Engineer’s Report.

22Exhibit 10, paragraphs 13 and 14 on page 3 of the affidavit of Sidney Vander Veen, P.Eng. sworn January 15, 2025.

23Paragraphs 10 to 19 on pages 2 to 4 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

24Paragraphs 11 on pages 2 and 3 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

25Paragraphs 17 and 18 on page 4 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

26Exhibit I on page 110 of Exhibit 7, being the Municipality’s Motion Record dated December 2, 2024.

27Exhibit “M” on page 66 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

28Exhibit H on page 108 of Exhibit 7, being the Municipality’s Motion Record dated December 2, 2024.

29Exhibit I on page 110 of Exhibit 7, being the Municipality’s Motion Record dated December 2, 2024.

30Exhibit 9.

31Paragraphs 23 to 26 on page 5 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

32Exhibit G on pages 92 to 106 of Exhibit 7, being the Municipality’s Motion Record dated December 2, 2024.

33Exhibit R on page 77 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

34Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

35Paragraph 28 on page 5 of Exhibit 8, being the plaintiff’s affidavit sworn January 15, 2025.

36Exhibit “K” to Exhibit No. 8, being the plaintiff’s affidavit, sworn on January 15, 2025.

37Exhibit 10, paragraph 17 on page 4 of the affidavit of Sidney Vander Veen sworn January 15, 2025.

38This decision is under appeal to the Divisional Court, though the appeal has been stayed by the Court, pending completion of the hearing.

39Exhibit C to Exhibit 10, being the Affidaivit of Sidney Vander Veen sworn January 15, 2025.

40Amended Statement of Claim, paragraph 32, clauses a, b, c, d, e, f, m, n, o, q, r, s, t, u, x, and y.

41Amended Statement of Claim, paragraph 32, clauses g.

42Amended Statement of Claim, paragraph 32, clauses h.

43Amended Statement of Claim, paragraph 32, clauses i.

44Amended Statement of Claim, paragraph 32, clauses j.

45Amended Statement of Claim, paragraph 32, clauses k.

46Amended Statement of Claim, paragraph 32, clauses l.

47Amended Statement of Claim, paragraph 32, clauses v.

48Amended Statement of Claim, paragraph 32, clauses w.

49Paragraph 30 on page 19 of Plaintiff’s Amended Reply issued August 2, 2024.

50Paragraph 30 on page 19 of Plaintiff’s Amended Reply issued August 2, 2024.

51Exhibit C to Exhibit 10, being the Affidavit of Sidney Vander Veen sworn January 15, 2025 commencing on page 297 of Exhibit 10.

52Pages 15/17 and 16/17 of Exhibit C to Exhibit 10, being the Affidavit of Sidney Vander Veen sworn January 15, 2025, those pages being pages 311 and 312 of Exhibit 10.