ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
CORY KITTEL
Applicant
- and -
THE CORPORATION OF THE TOWNSHIP OF WILMOT and JANANNA CORP.
Respondents
ACTING DRAINAGE REFEREE ANDREW C. WRIGHT
HEARD ON TUESDAY, MAY 20^TH^, WEDNESDAY, MAY 21^ST^, THURSDAY, MAY 22^ND^, AND FRIDAY, MAY 23, 2025
ORDER
The Court of the Drainage Referee held a hearing on the merits of this application from May 20^th^ to May 23, 2025, and after receiving the evidence of the witnesses called by the parties and having heard the submissions of counsel for the applicant, the Township and the representative of Jananna Corp., for the reasons that follow:
THIS COURT ORDERS that
The application is allowed.
The petition signed by Walter Krupnik as President of Jananna Corp. on April 26, 2021 is not a valid petition for the purposes of section 4 of the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.
The Engineer’s Report on the “Bamberg Creek, Jananna, and Koch-Leis Municipal Drains 2023” dated April 28, 2023 issued by the Engineer and signed by Stephen Brickman, P.Eng., including plan and profile, is set aside.
Township of Wilmot provisional By-Law 2023-32 read a first and second time on June 26, 2023, being a By-Law to Provide for Drainage Works for the Construction and Improvement of the Bamberg Creek, Jananna, and Koch-Leis Municipal Drain, is quashed.
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 May 27, 2025.
Andrew C. Wright Acting Drainage Referee
REASONS
Definitions
- For the purposes of these reasons, unless the context requires a different meaning:
(a) the “Act”, sometimes referred to as the “Drainage Act”, means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.
(b) the “Conservation Authority” means the Grand River Conservation Authority
(c) the “Drainage Superintendent” means K. Smart Associates Limited and John Kuntze P.Eng. President, in their capacity as Drainage Superintendent, appointed in accordance with the Act by by-law of the Township.
(d) the “Engineer” means both Stephen Brickman, P.Eng., and Headway Engineering Professional Corporation, carrying on business as “Headway Engineering”, together.
(e) the “Engineer’s Report” means the Engineer’s Report on the “Bamberg Creek, Jananna, and Koch-Leis Municipal Drains 2023” dated April 28, 2023 issued by the Engineer and signed by Stephen Brickman, P.Eng., including plan and profile. The Engineer’s Report is Exhibit No.: 2.
(f) the “Koch-Leis Drain” means the municipal drain constructed in accordance with the engineer’s report addressed to the Township of Wilmot and the Township of Wellesley, dated November 15, 1950, issued by Graham Reid & Associates, Ltd. and signed by G.G. Reid, P.Eng.1 as adopted by the Township’s By-law No.: 936 read a first and second time on December 11, 1950 and finally passed on February 1, 1951.2
(g) the “Municipal Act” means the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended.
(h) the “Petition” means the petition signed by Walter Krupnik as President of Jananna Corp. on April 26, 2021, that initiated the process under the Act, which has resulted in the Engineer’s Report. The Petition is Exhibit No.: 13.
(i) the “Proposed Jananna Drain” means the Drainage Act project administered by the Township beginning with the Drainage Act process leading up to the completion and adoption of the Engineer’s Report, including rights of appeal to the Drainage Tribunal, then the construction of the Proposed Jananna Drainage Works and thereafter the maintenance and repair of the Proposed Jananna Drainage Works all of the cost of which to be assessed to and paid for by the owners of lands that use the Proposed Jananna Drainage Works in accordance with the assessment schedules in the Engineer’s Report.
(j) the “Proposed Jananna Drainage Works” means the physical infrastructure components of the drainage works, including both the proposed East Branch and the proposed West Branch of the Jananna Municipal Drain, to be constructed, maintained and repaired under the authority of the Drainage Act in accordance with the Engineer’s Report.
(k) the “Statutory Powers Procedure Act” means the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, as amended.
(l) the “Rules” means Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.
(m) the “Rules of Civil Procedure” means R.R.O. 1990, Reg. 194, being the Rules of Civil Procedure under the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
(n) the “Township” means The Corporation of the Township of Wilmot, the respondent.
(o) the “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.
Parties and Representation
The applicant is represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation.
The Township was represented by Paul Courey, a lawyer in the office of Courey Law Professional Corporation until March 12, 2024 when he was replaced by Thomas Sanderson, a lawyer in the Waterloo office of Miller Thomson ^LLP^.
Jananna Corp. is self-represented by its president, Walter Krupnik.
The Engineer is represented by David Potts, a Barrister providing counsel to Lawyers in the fields of Defamation, Cyberlibel, Privacy and Cybersecurity, as well as by Christopher Macleod, a lawyer in the office of Cambridge ^LLP^. Counsel for the Engineer is only be involved in connection with issues related to document productions from the Engineer’s files.
It is to be noted that a number of those who received notice of this application and sought to observe from the virtual gallery were provided with login credentials to monitor the case management video conferences on September 11^,^ 2024, February 19, 2025, and the hearing on the merits.
Documents and Exhibits
- At the time of the hearing of the merits in May 2025, the following documents are part of the record:
Exhibit No.
Notice of Application issued December 20, 2023
No.: 1
the Petition
No.: 2
the Engineer’s Report
No.: 3
Township’s January 10, 2024 Motion Record for Procedural Directions Tab 1 – Notice of Motion Tab 2 – Affidavit of Jeffery Bunn sworn January 10, 2024 with three Exhibits; Exhibit A - copy of the applicant’s Notice of Intention to bring this application. Exhibit B - chronology of documents and events with copies of correspondence, including the December 19, 2023 agenda letter and the December 28, 2023 notice letter from the presiding Referee, the Notice of Application and e-mail traffic. Exhibit C - Township’s proposed procedural order.
Order issued by Acting Referee Andrew Wright on January 15, 2024 fixing the return date for the Township’s Motion for Directions now reported as Kittel v Wilmot (Township), 2024 ONDR 1
No. 4
Affidavit of Cory Kittel sworn January 29, 2024 in response to the Township’s January 10, 2024 Motion for Procedural Direction including four Exhibits: Exhibit A – the Petition Exhibit B – the Engineer’s Report Exhibit C – Township of Wilmot By-law No. 2023-32 provisionally adopting the Engineer’s Report with first and second reading on June 26, 2023 and not yet finally passed. Exhibit D – Examples of Styles of Cause in three cases: Herron v St. Charles (Municipality), 2019 ONDR 1; Geotz v South Bruce (Municipality), 2020 ONRD 1; Chrustie v Ottawa (City), 2021 ONDR 1
Order issued by Acting Referee Andrew Wright on February 22, 2024 establishing schedules for delivery of applicant’s supporting affidavits and production of documents and for the Township and the Engineer to produce documents now reported as Kittel v Wilmot (Township), 2024 ONDR 3
No. 5
Engineer’s Affidavit of Documents sworn on March 14, 2024 by Stephen Brickman, P.Eng., together with the 144 documents listed therein.
No. 6
The Engineer’s Curriculum Vitae.
No. 7
Applicant’s Affidavit of Documents sworn on April 2, 2024 by Cory Kittel, together with the 110 documents listed therein.
No. 8
Affidavit of the applicant in support of the application sworn on April 2, 2024 by Cory Kittel, together with 29 Exhibits A through CC.
No. 9
Productions Brief of the Township issued April 2, 2024, together with the 267 documents identified therein.
Order issued by Acting Referee Andrew Wright on April 16, 2024 providing for the giving of Notice to those who may be affected by the result of the application, now reported as Kittel v Wilmot (Township), 2024 ONDR 4.
No.: 10
Affidavit of Stephen Brickman, P.Eng. sworn June 20, 2024 together with 21 exhibits A through W one of which, Exhibit A, is an Expert’s Report.
Order issued by Acting Referee Andrew Wright on September 11, 2024 adding Jananna Corp as a party and setting dates for their delivery of documents and exchange of affidavits and fixing date case management video conference on Wednesday, February 19, 2025, now reported as Kittel v Wilmot (Township), 2024 ONDR 5
No. 11
Affidavit of Walter Krupnik sworn November 20, 2024
No. 12
Affidavit of Brian Verspagen, P.Eng., sworn January 10, 2025 together with two exhibits: Exhibit A - expert’s report Exhibit B - Acknowledgement of Expert’s Duty Exhibit C - Curriculum Vitae.
No. 13
Affidavit of Cory Kittel sworn January 10, 2025 together with one exhibit: Exhibit A – Mr. Kittel’s Commentary and his Evidence
No. 14
Affidavit of Kenneth Heintz sworn January 10, 2025
No. 15
Affidavit of Ladislaus Bauer sworn January 10, 2025 together with one exhibit: Exhibit A – His letter dated January 7, 2025 addressed To Whom It May Concern
No. 16
Supplementary Affidavit of Stephen Brickman, P.Eng. sworn February 5, 2025 together with Exhibit A – Supplementary Experts Report dated February 5, 2025
No. 17
Affidavit of Kaitlin Bos, Clerk of the Township, sworn February 6, 2025, together with Exhibit A – the Petition Exhibit B – Property Index Map Exhibit C – Parcel Register for PIN 22176-007 Exhibit D – Parcel Register for PIN 22176-0015 Exhibit E – Information and Legislative Services Staff Report ILS 2021-27 dated July 12, 2021 Exhibit F – Minutes of Township Council Meeting dated July 12, 2021 Exhibit G – Letter dated July 22, 2021 from the Engineer, Stephen Brickman, P.Eng. to Tracy Murray the Township’s Manager of Information and Legislative Services and Deputy Clerk Exhibit H - Letter dated September 8, from the Engineer, Stephen Brickman, P.Eng. to Tracy Murray the Township’s Manager of Information and Legislative Services and Deputy Clerk Exhibit I – Public Information Meeting Presentation dated September 29, 2022 Exhibit J - Public Information Meeting Presentation dated November 22, 2022 Exhibit K - Engineer’s Report dated April 28, 2023 Exhibit L – Minutes of the Township Council Meeting on June 26, 2023, with Confirmatory By-law Exhibit M – Minutes of Court of Revision Meeting dated August 16, 2023 Exhibit N - Notice of Appeal letter from Cory Kittel dated September 6, 2023
Order issued by Acting Referee Andrew Wright on February 19, 2025 fixing the dates for the hearing of the merits of the application now reported as Kittel v Wilmot (Township), 2025 ONDR 1.
No. 18
Final Report of the Select Committee on Land Drainage, tabled in the Legislative Assembly by Lorne C. Henderson, M.P.P, Chairman, June 1974 in the 4^th^ Session, 29^th^ Legislature, 23 Elizabith II
The decision of Referee G.F. Henderson, Q.C. in the case of Duane v. Finch (Township), issued on May 15, 1908 and reported at 1908 ONDR 1.
Decision of Referee Wm.D. Turville in the case of Jones v Derby (Town) issued December 8, 1986 and reported at 1986 ONDR 3
Decision of Referee D.A. O’Brien in the case of M&M Farms v Kingsville (Town) issued September 29, 2004 and reported a 2004 ONDR 1
Decision of Referee S.L. Clunis in the case of McKeen v East Williams (Township) issued May 31, 1966 and reported at 1966 ONDR 1
Decision of Referee R.T. Johnston in the case of Hodgson v Mariposa (Township) issued March 1, 1993 and reported at 1993 ONDR 1
Decision of Referee D.A. O’Brien in the case of Pannabecker v West Wawanosh (Township) issued June 12, 2000 and reported at 2000 ONDR 2
Decision of Referee Wm.D. Turville in the case of Westendorp v Elizabethtown (Township) issued June 10, 1986 and reported at 1986 ONDR 1
Decision of Referee R. G. Waters in the case of Brzeczka v Niagara on the Lake (Town) issued by on October 19, 2022 and reported at 2022 ONDR 1
Decision of Acting Referee A.C. Wright in the case of Melidy v Holland Marsh Drainage System Joint Municipal Service Board, issued February 25, 2023 and reported at 2023 ONDR 6 – Note: The appeal of this decision to the Divisional Court was abandoned.
Decision of Cumming, J. in the case of CPC International Inc. v Seaforth Creamery Inc., 1996 CanLII 8195 (ON SC)
Decision of Referee J.P. McMahon in the case of Ingersoll G&C v Southwest Oxford (Township), issued October 12, 1977 and reported at 1977 ONDR 1
- 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. As well, 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.
Issues
- As set out in the Procedural Order issued on February 19, 2025, the issues to be addressed are as follows:
(a) What is the area requiring drainage for the purposes of applying section 4, in particular, clauses 4(1)(a), (b), (c) and (d) of the Drainage Act to the Petition? Is the Engineer’s definition/rationale/methodology for it permissible under the Drainage Act?
(b) If valid, how does the Petition support the proposed West Branch Drain on the west side of the Jananna property in the Koch-Leis Drain watershed, and the proposed “improvements” to the Koch-Leis downstream from the proposed outlet of the West Branch Drain into the Koch-Leis Drain?
(c) Does the Engineer’s Report satisfy the requirement, at subsection 8(1)(a) of the Drainage Act, to include a description of the area requiring drainage in the report?
Background
This case concerns a proposed municipal drain petitioned for by Jananna Corp. Jananna Corp. owns 107-acre (43.3-hectare) farm property known municipally as 1184 Gerber Road. The Jananna Corp. farm (the “Jananna Farm”) is part of the north half of Lot 10, Concession 3, Block B in the Township of Wilmot and fronts on the south side of Gerber Road. North of Gerber Road in this location is the Township of Wellesley. Most of the Jananna Farm has outlet access to the Bamberg Creek via the Koch-Leis Drain; a small pocket in the southeast part of the Jananna Farm does not have the same access to the Bamberg Creek.
The Jananna Farm was acquired by Jan Gawron and Anna Gawron in May 1957.4 They farmed it until Mr. Gawron died in 2007; Mrs. Gawron died in 20125. After their deaths, the Jananna Farm was transferred to three of their children, Theresa Gawron, Christine Gawron and Irene Schneider, on February 5, 2014. They, in turn, transferred the Jananna Farm to Jananna Corp. on the same date. The children of the Gawron’s are the shareholders of Jananna Corp. It owns and operates the Jananna Farm. Walter Krupnik, the president of Jananna Corp., is Mrs. Gawron’s son. A daughter, Lucy Gawron, lives in the farmhouse on the Janana Farm.
The Janana Farm was systematically tile-drained in 2018. Before that the farm had random tiling.
The Jananna Farm is rented to a Mr. Jantzi, who cash crops the farm. It had a corn crop last year and has been seeded in soybeans this year.
The applicant, Cory Kittel, is one of the owners of the 98-acre (39.66-hectare) farm, which abuts the east side of the Jananna Farm. The Kittel Farm (the “Kittel Farm”) is known municipally as 1010 Gerber Road and is part of the north half of Lot 9, Concession 3, Block B, in the Township of Wilmot. The Bamberg Creek runs through the south part of the Kittel Farm. The Kittel Farm was acquired on April 10, 1969 by Edgar Kittel, Wilfred Kittel and Mary Brenner. It was transferred to Wilfred Kittel and the Estate of Edgar Kittel on June 17, 1982. It was transferred on March 11, 2009 to Jeremy Nichola Kittel, Cory Lee Kittel, Rosemary Helen Kittel-MacCormack, Wilfred Nicholas Kittel and Donna Maryann Kittel. Finally, on August 3, 2018, the Kittel Farm was transferred to Cory Lee Kittel and Kirby Lynn Tiffany Kittel.6
The Bamberg Creek runs through the Kittel Farm. Some of the Kittel Farm is south of the Bamberg Creek but the largest part is to the north. The Bamberg Creek flows from east to west. It flows into the Nith River, which in turn joins the Grand River in Paris, from whence it flows to Lake Erie near Dunnville.
Mr. Kittel grew up on the Kittel Farm. In September 2021, he, his wife, mother and children moved into a newly constructed house on the farm. He says his children are the sixth generation of the family to live on the Kittel Farm7. The Kittel Farm is cash-cropped by a farmer tenant. The crops identified by Mr. Kittel are spelt and alfalfa. He also has some cattle.
The Kittel Farm and the Janana Farm farms are shown in the aerial photograph, which is attached to these reasons on page 34. The same aerial photograph was attached to the Petition8. North is at the top of the aerial photograph. It identifies the location of the Bamberg Creek and the Koch-Leis Drain. The Koch-Leis Drain is a municipal drain that flows southeasterly to the west of the Jananna Farm. It passes through a small part of the southwest corner of the Jananna Farm; it then outlets into the Bamberg Creek.
As mentioned, both farms grow agricultural cash crops. The Janana Farms has most recently been planted in corn and is now planted in soybeans. It has been fully harvested for the past 50 years, during the time when Jan and Anna Gawron were on the farm9.
The Jananna Corp. property has extensive, systematic tile drainage. The tile drainage carries water to the west, where it outlets into the Koch-Leis Drain. The high part of the Jananna Farm is in the north; the highest part is in the eastern half of the frontage on Gerber Road. The land falls to the southwest, and water from most of the Janana Farm flows southwest to the outlet into the Koch-Leis Drain in the southwest corner of the farm, thence to the Bamberg Creek. As the land falls southwest, in the southeastern part of the Jananna Farm, the topography bends southward toward the Bamberg Creek. The systematically tile-drained portions of the southeast part of the Jananna Farm also outlet to the southwest into the Koch-Leis Drain, thence to Bamberg Creek.
There is, however, a pocket of land in the southeast part of the Jananna Farm where water cannot flow by gravity to the Koch-Leis Drain10. That southeast area ultimately flows into the Bamberg Creek, but because the Jananna Farm does not have direct access to the Bamberg Creek for this pocket, the purpose of the Petition is to secure a legal outlet access to the Bamberg Creek. Mr. Kittel estimates the pocket on the Jananna Farm is approximately 1 acre (0.4 hectares) to 1½ acres (0.6 hectares). Mr. Krupnick was reluctant to guess, but when pressed, estimated it is in the order of 2 acres (0.8 hectares) to 3 acres (1.2 hectares). The Engineer advised that the pocket is 1 acre (0.4 hectares) in size surrounded by another acre of land that is not systematically tile-drained. The pocket on the Jananna Farm can be and is being cropped, though with challenges in wet years.
The Petition was signed by Jananna Corp. on April 26, 2021. Before doing so, Jananna Corp. sought to obtain outlet to the Bamberg Creek for the southeast part of the Jananna Farm across the Kittel Farm. The assistance of the Wilmot Township Drainage Superintendent, John Kuntze, P.Eng. was enlisted. Mr. Kuntze provides Drainage Superintendent services to the Township under contract but he is also a seasoned drainage Engineer expert. In April of 2018, Mr. Kuntze proposed 2,300 feet (700 metres) of different-sized, solid corrugated plastic tubing depending upon whether the outlet was to serve only the Jananna Farm or both the Jananna Farm and the Kittel Farm under the aegis of a Mutual Drain agreement under the authority of the Drainage Act 11. Mr. Kuntze estimated the cost to be in the order of $35,00012 to be shared under a Mutual Drain agreement.
For reasons that are unclear from the evidence, these discussions did not result in a Mutual Drain agreement and the Petition was filed with the Township.
The Township followed the procedures under the Drainage Act by appointing the Engineer, who in turn held an on-site meeting on September 22, 2021, at the Jananna Farm. Representatives of Jananna Corp. were present; Mr. Kittel was not but sent the Engineer an e-mail on October 25, 202113.
On September 13, 2022 there was a “Petitioner Meeting” with the Engineer to discuss a western branch drain to outlet into the Koch-Leis Drain.14 On September 29, 2022 there was a Public Information Meeting at the Wilmot Recreation Complex Wayne Roth Meeting Room located at 1291 Nafziger Road.15 Starting on September 22, 2022, there was an e-mail exchange between Mr. Kittel and the Engineer.16
On November 24, 2022 the Engineer convened a Public Information Meeting in connection with a September 30, 2022 request for improvements of the Koch-Leis Drain.17 The Engineer, in his viva voce evidence, confirmed that there was no request for improvement for the purposes of section 78 of the Drainage Act. At this meeting, the proposed West Branch was presented. This meeting, too, was held at the Wilmot Recreation Complex Wayne Roth Meeting Room located at 1291 Nafziger Road. Representatives of Janana Corp. were notified of this meeting and attended. Mr. Kittel was not notified and did not attend.
Mr. Kittel and the Engineer met on February 9, 2023. This meeting was arranged after an exchange of e-mail and voice messages from December 9, 2022 to February 3, 2023.18 The Engineer’s notes of this meeting indicate that Mr. Kittel is prepared to discuss an agreement for a private drain.19 The Jananna Corp. response was that they wanted a “legal” outlet by way of a municipal drain.20
The Engineer’s Report was issued on April 28, 2023 and copies were provided by the Engineer to the Township for distribution on May 5, 2023.21 Council’s meeting to consider the Engineer’s Report was held on June 26, 2023. During that meeting, representatives of Jananna Corp. and Mr. Kittel addressed the Council. Council gave first and second reading to By-law 2023-3222 provisionally adopting the Engineer’s Report and Court of Revision was scheduled for August 16, 2023.23 The Court of Revision dismissed all assessment appeals and confirmed the assessments in the Engineer’s Report.24
A notice of intent to bring this application was issued on November 21, 2023, and the Notice of Application was issued on December 20, 2023. Appeals to the Drainage Tribunal under section 48 (from the Engineer’s Report) and section 54 (from the Court of Revision) of the Drainage Act will be held in abeyance pending the outcome of this application.
Engineer’s Report Proposal
The Engineer’s Report proposes an East Branch and a West Branch as well as incorporating and improving portions of the Bamberg Creek as an element of the drainage works.
For the East Branch of the Proposed Jananna Drain, the Engineer’s Report recommends a new municipal drainage system (from station 0+000 to station 0+598) be installed from the outlet (station 0+000) into the Bamberg Creek in Lot 9, Concession 3, Block B, and extending upstream in a northwesterly direction across Lot 9 to the property line (station 0+218) separating Lot 9 (the Kittel Farm) and Lot 10 (the Jananna Farm), in the same concession. The drainage works would then continue upstream northerly on the Jananna property to a catch basin at station 0+598 on the property line between Lots 9 and 10. From station 0+000 to a catchbasin at station 0+310, the East Branch would consist of a 400mm concrete field tile, and from the station 0+310 catch basin to the station 0+598 catchbasin, the East Branch drain would be a 200mm concrete field tile.
With respect to the proposed East Branch of the Proposed Jananna Drain, improvements would be made to the Bamberg Creek, which would become a municipal drain known as the Bamberg Creek Drain 2023. The improvements to the Bamberg Creek Drain 2023 would be from the outlet of the East Branch (station 0+000) and extending downstream generally in a southwesterly direction past the outlet of the West Branch (at station 0+287 of the Bamberg Creek Drain) to a sufficient outlet on the Schneider property (Roll No. 9-153) at station 0+650 of the Bamberg Creek Drain 2023. Bamberg Creek Drain 2023 would remain an open watercourse, and the improvement works would involve deepening, cleaning, brushing, mulching and open ditch excavation, including cleanout through the concrete bridge at station 0+539.
The West Branch of the Proposed Jananna Drain would be new municipal drainage works. It would start at station 0+000 (of the West Branch), where it would outlet into the Koch-Leis Drain in Lot 10, Concession 3, Block B, and extend upstream to a catchbasin on the south road limit of Gerber Road, in the same concession at station 0+760. From station 0+000 to station 0+450, the West Branch would consist of a 250mm concrete field tile and from station 0+450 to the catch basin at station 0+760, it would be a 200mm concrete field tile.
In connection with the West Branch, improvements would be made to the Koch-Leis Drain from its outlet into Bamberg Creek Drain (station 0+000 of the Koch-Leis Drain) in Lot 10, Concession 3, Block B and extending upstream to the outlet of the West Branch (being station 0+551 of the Koch-Leis Drain and station 0+000 of the West Branch). The Koch-Leis Drain is an open ditch in this location, and the improvements involve deepening, cleaning out, brushing and mulching. The Koch-Leis Drain, as thus improved, would be known as the Koch-Leis Drain 2023.
The Engineer’s Report summarized that the proposed tile drainage system would include the installation of approximately 1,358 m of 200 mm to 450 mm diameter pipes and is designed to convey flows at a design standard of 25mm per 24-hour period. The proposed improvements to the open channels consist of approximately 1,201m of cleanout. It is said that the proposed drainage system would be constructed at elevations adequate to drain the surrounding subsurface lands.
The Engineer’s Report also recommends updating the watershed for the Koch-Leis Drain to reflect the most current topographic information and adjusting the maintenance assessment accordingly. Similarly, the Report suggests updating the watersheds of the surrounding municipal drains during future reviews of those drainage systems.
Validity of Petition
- I now turn to a consideration of the validity of the Petition, which has been signed by the owner of only one parcel of land, the Jananna Farm. The focus of this consideration is the question of the area requiring drainage for the purposes of subsections 4(1) and 4(2) of the Drainage Act in the context of the Petition. These subsections are as follows:
4(1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,
(a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;
(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;
(c) where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 (5);
(d) where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).
4(2) A petition under subsection (1) shall be in the form prescribed by the regulations and, where it is filed by an owner or owners under clause (1) (a) or (b), shall be signed by such owner or owners. R.S.O. 1990, c. D.17, s. 4 (2).
- It is helpful to describe the pertinent parts of Jananna Farm and Kittel Farm to begin a discussion of the area requiring drainage. That best description is found in the April 24, 2018 memorandum prepared by John Kuntze, P.Eng, and addressed to Mr. Kittel and Chris Gawron, a representative of Jananna Corp.25 It is to be recalled that Mr. Kuntze was serving as the Township’s Drainage Superintendent. His memorandum pre-dates the Petition, which was signed three years later on April 26, 2021. In the memorandum, Mr. Kuntze observes that
The area in question is a low depressional area on the west boundary of the Kittel farm. Part of this low area extends westerly into the Gawron farm. The attached 2015 aerial photograph from the GRCA website illustrates the low depressional area in question as this area cannot currently be farmed. A depressional area has no direct outlet for surface drainage and thus will remain wet for long periods of time. Depressional areas can usually not be farmed unless they are tile drained. The natural outlet for the depressional area in question is to the southeast to Bamberg Creek on the Kittel farm.
I believe that the depressional area on the Kittel and Gawron properties had a functional tile outlet in the past.
On the GRCA website one can examine aerial photograph from 2015 back to 2000. On the 2000 and 2006 aerial photograph it appears that most of the depressional area on both farms may have been under cultivation. The 2010 aerial photography shows considerable flooding in the low area on the Kittel farm and the 2015 aerial photograph shows the low area on both farms can no longer be cultivated.
At some time since 2006 the tile drain became nonfunctional due to lack of repair. An on-site examination would be required to determine if a tile drain exists and if it requires repair.
The 2015 aerial photograph from the GRCA website that is referred to and attached to the April 24, 2018 Kuntze memorandum is found on page 35 of these reasons. It shows the depressional area and that, while a part of it is on the Jananna Farm, much more is on the Kittel Farm. The part of the depressional area that is located on the Jananna Farm is the pocket referred to in paragraph 20 above. The depressional area is cropped on both sides of the boundary between the farms, albeit with challenges in wet years; these challenges relate to delays in getting on the land with farm machinery and equipment.
On page 4 of the Engineer’s Report, the Engineer says:
The area requiring drainage is part of Lot 10, Concession 3, Block B. The petition is valid in accordance with Section 4(1)(a) of the Drainage Act.
There is no elaboration or a map or plan showing what the Engineer regarded as the area requiring drainage.
The Engineer’s Expert’s Report,26, on page 32 of the Engineer’s affidavit, the Engineer says:
The entire property at North 1/2 of Lot 10, Concession 3, Block B, 1184 Gerber Road, Wilmot Township, has been delineated as the ARD, excluding the bush areas and the naturally well-draining soils to the north of the property. These areas do not require drainage interventions, hence their exclusion from the ARD.
The Engineer provides no map or plan of this area requiring drainage, nor does he provide any explanation of what constitutes “naturally well-drained soils to the north of the property.”
In his viva voce evidence, the Engineer explained that the “naturally well-drained soils to the north” refers to lands identified on the Working Area Plan27, which is the second of two plans attached to the Engineer’s Report. They are the lands in the north of the part of the Jananna Farm that is not systematically tile drained. He then explained that the Working Area Plan identifies the systematically tile drained lands because they are south of the light grey dashed line identified on the left side of the plan as “Anticipated Limit of Field Tile” The viva voce evidence is that the land to the north of the systematic tile drainage is naturally well-drained sandy soil, where such tile drainage is superfluous.
The bush area is shown on the map attached to the Petition found on page 34 below. With respect to the bush, the evidence is that there is a wetland in the middle and that the western part of the bush flows west to the Koch-Leis Drain inlet, and some of the eastern side of the bush goes south and east off the Jananna Farm.28 The Engineer offers no explanation of why the wetland and all or some parts of the bush should not be regarded as part of an area requiring drainage or why some drainage interventions are not warranted. Mr. Krupnik said that there is more water in the bush since the installation of the systematic tile drainage in 2018 than there had been during his father’s time farming the land.
The Engineer appears to have determined that wherever Jananna Corp. has installed, or wishes to install, systematic tile drainage is an area requiring drainage for the purposes of section 4 of the Drainage Act, and he uses the Jananna Farm property boundaries to define that area requiring drainage. This he does in the context of the Petition, which identifies as “improved drainage required” a narrow, short strip along a part of the south half of the east property line.
The Engineer, Mr. Brickman, P.Eng. is a seasoned, well-qualified drainage engineer who is entitled to great deference with respect to the question of the area requiring drainage for the purposes of section 4 of the Drainage Act, particularly in the absence of a differing opinion from a qualified engineer or surveyor. But if his opinion is clearly wrong, it cannot stand.
In his decision in the case of Jones v. Derby (Township), 1986 ONDR 3, Referee Wm. D. Turville quotes with approval the decision Garrow, J.A. in Re: Township of Anderson and Townships of Malden and Colchester South (1912) 1912 CanLII 465 (ON CA), 8 D.L.R. 812 at 814 concerning the engineer’s duty in determining an area requiring drainage:
“He has necessarily to make a close and careful examination and study of the whole premises, and in his deliberate conclusions ought not, in my opinion, to be disregarded. Except under clear evidence of error, or unless a question of law is involved.”
I digress briefly to observe that the applicant’s engineering expert witness, Mr. Brian Verspagen, P.Eng., in his Expert Report29 offers no opinion about the validity of the Petition or about the “area requiring drainage” for the purposes of section 4 of the Drainage Act. His Expert Report is, by its terms, limited to a review of the Engineer’s Report to assess the engineering design of the East Branch of the Janana Drain 2023.30
As to the question of clear evidence of error, it is the right of a layperson appellant to ask good questions, and it is the responsibility of the responding expert to provide good answers. In this case, there are three fundamental questions that present themselves;
(a) Was the Engineer correct to define the area requiring drainage by reference to property ownership boundaries?
(b) Did the Engineer correctly identify the scope of the Petition?
(c) Was the Engineer correct to exclude any part of the Kittel Farm from the area requiring drainage for the purposes of section 4 of the Drainage Act in the context of the Petition?
- Those questions will be dealt with below, but first, it will be useful to review the several cases to which the Engineer has referred in this expert’s report, augmented by additional decisions referred to by counsel. This case review will focus on the context of the correctness of using property boundaries to determine an area requiring drainage for the purpose of section 4 of the Drainage Act.
Areas Requiring Drainage Context
Before doing so, it is worth reviewing briefly some of the foundational elements of the Drainage Act. The Act is an extraordinarily powerful instrument. It is akin to many local improvement legislative schemes in which local landowners may petition for the installation of servicing infrastructure, such as roads, sewers, street lighting and sidewalks. If there is a prerequisite number of petitioners, the municipality proceeds with the project and then recovers the cost of doing so through an assessment of those landowners who use the installation. Usually, the legislation authorizes assessments to be recoverable as municipal property taxes. This is the general scheme of the Drainage Act as it applies to drainage works. The municipality is the administrator of the Drainage Act and is not the ultimate payor for the costs of construction, maintenance and repair of municipal drainage works. Those whose lands use or contribute water to the drainage works pay the costs of constructing, maintaining and repairing drains. A municipality will only be assessed to the extent that its road or other municipally owned properties are assessed as users of the drain. The powers and authority of the Act to install drainage works and, for that purpose, to acquire rights over lands for the drainage works and working easements and to pay compensation in the form of allowances and to recover the costs and expenses in the same manner as municipal taxes are awe-inspiring. But the exercise of all of these powers and this authority under the Act and the process provided by and the protection from liability afforded by the Act depend upon there being a valid petition in the first place.
Under the scheme of the Act, to give notice of non-repair under section 79 of the Act takes just one person; to request the improvement of an existing drain under section 78 of the Act takes just one person, but it is not simply a matter of a single land owner asking for drainage or desiring an outlet to unleash to power and authority of the Drainage Act to create a new municipal drain.
Section 4 does not say that a petition may be filed by any owner of a single parcel of land who announces that their property needs drainage. Section 4 of the Act gives exactly that power to a road authority and to the Director in subsections 4(c) and 4(d), respectively, but no one else has that authority. The century-old cornerstone of drainage legislation in Ontario is that it takes a majority - or now alternatively 60% of the area requiring drainage.
It is essential to determine an area requiring drainage in order to be able to apply those percentages and thus test for the validity of a petition. Once the area requiring drainage has been determined, the rest is a mathematical calculation. However, if an area requiring drainage is determined solely and simply based on the owner of a single property’s desire for a legal outlet, then what is the purpose of Section 4 of the Act? The legislature knows how to create laws that allow for single-person initiation, as in Sections 78 and 79 of the Act. However, it has not done so in relation to the establishment of new municipal drains. Careful attention is therefore required in the determination of an area requiring drainage to preserve the integrity of section 4 of the Drainage Act.
Over the past couple of decades, well-intentioned, activist decision-makers have pushed the limits in promoting drainage solutions to the greatest extent possible without the benefit of a legislative amendment.
Case Review
Duane v. Finch (Township), 1908 ONDR 1
The decision in Duane v. Finch (Township), 1908 ONDR 1 was issued by Referee G.F. Henderson, Q.C. on May 15, 1908. This decision reflects the drainage regime at the time when a petition was presented to the municipal council. The municipal council had the responsibility of deciding whether the petition described a “real drainage area”. Referee Henderson decided that the petitioner had gerrymandered the drainage area described in the petition to include those who would sign and to exclude those who wouldn’t.
Before quashing the By-law and the petition upon which it was based, he said:
What I would wish to point out very plainly is that it is not proper to pick out any portion or portion of what is in fact a distinct basin requiring drainage. Subject to the discretion of the township council, the majority, are to rule, but they must constitute a real majority, and in no case should the council permit the provisions of the Act to be abused by allowing a real minority to impose upon an actual majority.
The Duane v. Finch (Township) decision does not address the question of whether an area requiring drainage can be determined by reference to property ownership boundaries.
However, the salient aspect of this decision is the concept that a real majority of landowners in a real, on-the-ground, distinct basin requiring drainage must agree by signature on a petition. That notion has been the foundation of the province's drainage regime for more than a century. That principle remains the essence of section 4 of the current Drainage Act, with the added nuance that the signatures of those owning 60% of the area requiring drainage will be sufficient for a valid petition.
McKeen v. East Williams (Town), 1966 ONDR 1
- This is a decision of Referee S.L. Clunis issued May 31, 1966. It is a case where the engineer’s report proposed drainage works that went beyond what was asked for in the petition. On page 11 of his decision, he says
I think the whole of the evidence points to the conclusion that the proposed work was recommended because of the desire of the engineer to improve the drainage of the whole area and his desire to provide economic drainage for Highway Number 81. It follows that, in my opinion, the size, the costs, the value of the scheme and its purpose differs so materially from the work contemplated by the petition that it bears little relationship to that petition. The relevant provisions of the Act have been changed since McCullough vs. Caledonia, 25 A.R., 417, was decided, but the principle stated in that case that the Act does not authorize a municipality to pass a by-law for the construction of a drainage system which differs substantially in size and cost from the drain petitioned for because such a by-law is in effect based upon no petition at all, is still good law.
In this connection, it seems to me to be a necessary corollary of this principle that if a sufficiently signed petition which describes a drainage area is filed, it is not to be taken as authority to proceed with any drainage work that may seem desirable in the general area of which the petitioning area is only a part.
This decision does not speak to the question of whether an area requiring drainage can be determined by reference to property ownership boundaries.
It does, however, speak to the need for an engineer to focus on the area identified by the petition rather than the general good of a larger area.
Ingersoll G&C v Southwest Oxford (Township), 1977 ONDR 1
The Ingersoll G&C v Southwest Oxford (Township) decision was issued by Referee J.P. McMahon on October 12, 1977. This decision is made under the provisions of the Drainage Act, 1970, Chapter 136, as amended, which is the predecessor of the current iteration of the Drainage Act.
In this case, two petitions were filed with the Clerk of the Township at approximately the same time, prior to February 17, 1976. It is not clear which was filed first in time. One was signed by the road authorities. The affected road authorities were the Township, the Town of Ingersol and the County of Oxford. The other petition was signed by residents of an affected subdivision; the road authorities also added their names to this petition. An engineer’s report, dated June 25, 1976, was prepared, and, after due process, was finally adopted by the Township as the initiating municipality on January 18, 1977.
There was no dispute that a serious flooding problem existed in the area, affecting not only the homes in the subdivision, a conservation area, but also the roads, namely, Whiting Street, Breckwood Boulevard, Maple Lane, Holcroft Street, and the Second Concession (West Oxford).
One of the problems before the Referee was that the petition, signed by the landowners in the subdivision, lacked a sufficient number of signatures to be valid. The one signed by the road authorities would be valid, as any one of the road authorities had the right to petition on their own. The Referee determined, based on the evidence, that the municipalities and the engineer had proceeded on the basis of the petition with only the road authorities’ signatures and therefore considered it a valid petition. Amongst the evidence relied upon by the Referee was the fact that the engineer had made no inquiry of the municipalities about property ownership, as that information was not relevant to a petition signed by road authorities. Another indicia of intention was that, when the Council held its meeting to consider the report, no opportunity was given for petitioners to withdraw their signatures, as all the road authorities had previously indicated their wish to proceed as proposed by the engineer’s report.
Having determined that the petition signed by only the road authorities was the applicable petition, with respect to the area requiring drainage identified in that petition, the Referee determined that identification in the petition of the roads alleged to require drainage was sufficient.
This decision does not speak to the question of whether an area requiring drainage can be determined by reference to property ownership boundaries.
The applicant refers to this Ingersoll G&C decision for the proposition that the engineer cannot establish the area requiring drainage until they have conducted the relevant analysis following the on-site meeting31. Without quarrelling with the general proposition, it is difficult to extract that notion from this decision.
Westendorp v. Elizabethtown (Town), 1986 ONDR 1
The Westendorp v. Elizabethtown (Town) decision was issued by Referee S.L. Clunis on June 2, 1986. This is after the 1975 advent of the current Drainage Act. In this decision, he determined that there were sufficient signatures on the petition in question.
As to the determination of an area requiring drainage, Referee Clunis says the following:
The best definition of the area requiring drainage that I was able to research appeared in a letter dated November 29, 1929, to the Clerk of the Township of West Williams from Drainage Referee George F. Henderson:
“It is not necessary that there should be a majority of the petition of all those whom the engineer finds to be eventually interested in the drainage work. What you need is in first place a reasonably well defined drainage area, that is, a section of land requiring drainage, and it is this territory which should be described in the area. It is of course not proper to pick out just enough lots to enable a majority, but there should be what I generally speak of as an irregularly shaped saucer with reasonably well defined banks around it. This might be all on one lot, although that is of course a rare case, but the point is that once you have that low lying section of land requiring drainage, it is a majority of the owners in that section that you need for a petition, no matter how many others the Engineer may bring in.”
The decision also emphasizes that the then-new Drainage Act was intended to divest local councils of the burden of having to decide upon an area requiring drainage without the assistance of a professional. The decision also comments that the then-new Drainage Act had the effect of restricting an overzealous engineer from creating a scheme far larger than envisaged in the petition.
Again, this decision does not mention property ownership boundaries as a relevant factor in determining an area requiring drainage. It does refer to the concept of an irregularly shaped saucer as the basis for determining an area requiring drainage. This saucer analogy is the classic theory under the Drainage Act since 1975 and before. The regular symmetry of a teacup saucer is impossible in the topography of the real world, hence the “irregularly shaped sauce”; however, the theoretical concept and approach to determining an area requiring drainage remains.
The Engineer takes from this decision the following:
This decision has significantly influenced modern engineering approaches, emphasizing the need for precise, data-driven assessments in drainage projects. It guides the development of methodologies that consider both physical geography and hydrological needs comprehensively.
I was unable to extract that impression when reviewing the decision.
Jones v. Derby (Township), 1986 ONDR 3
The case of Jones v. Derby (Township) is a decision of Referee Wm.D. Turville issued December 8, 1986. It was an appeal under subsection 47(1) of the Act.
There was an initial petition which had the signatures of joint owners without the signature of the other co-owner. This was identified as a problem after the statutory on-site meeting had been held. To rectify the deficiency a second petition was signed with all co-owner signatures. The Drainage Act process continued without a second on-site meeting as contemplated by section 9 of the Act. On that basis, the engineer's report was set aside. The Referee nonetheless went on to deal with the issue of the area requiring drainage.
The appellants said the engineer merely followed the wishes of the petitioners and paid little heed to the lands in the same drainage basin. The appellant’s engineer witness testified that lands across the road from the petitioner's lands were part of the area requiring drainage. Water flowed between the lands on both sides of the road through culverts under the road.
Referee Turville made the following observation about what is to be included as part of the area requiring drainage:
I am of the view that it is the intention of the present Drainage Act, that lands not described in the petition as requiring drainage that are subsequently found to require drainage by the engineer in his report to have similar physical features so as to form one area requiring drainage with those lands described in the petition as requiring drainage, are as well, to be included when the requirements of Sec. 4(a) or (b) are being considered, otherwise the lands described in the report by the engineer in accordance with Sec, 8-1(a) would not be fairly described. Failure to do so would not afford the intended protection for those who did not sign the petition.
- In his decision, the Referee referred with approval to the above-quoted statement of Referee Henderson and made the following observation about the engineer’s approach to the area requiring drainage
You cannot adjust the irregular “shaped saucer with reasonably well defined banks around it” just because a landowner indicates his desire for drainage, without first ascertaining where those well defined banks are located on the ground. In his zeal to accept the Petitioner’s version of the area requiring drainage Mr. Mannerow has not formed the proper independent judgment when making his assessment.
As a result, the report was set aside on the grounds that the area requiring drainage had not been correctly identified.
There is no suggestion in this decision that property ownership boundaries are relevant to the determination of an area requiring drainage. Even the width of a road allowance is not relevant. What is relevant are physical features.
Hodgson v Mariposa (Township), 1993 ONDR 1
Hodgson v Mariposa (Township), 1993 ONDR 1 is the decision of Referee R.T. Johnston issued March 1, 1993. This decision turns on whether upstream riparian owners can be assessed for outlet in connection with downstream drainage works.
As it relates to establishing an area requiring drainage, this decision reiterates previous decisions that the considerations for determining an area requiring drainage relate to physical characteristics. Again, there is no suggestion in this decision that property ownership boundaries are relevant to the determination of an area requiring drainage.
Pannabecker v. West Wawanosh (Town), 2000 ONDR 2
Pannabecker v West Wawanosh (Town), 2000 ONDR 2 is a decision Referee D.A. O’Brien issued on June 12, 2000. It is an appeal under section 47(1) of the Act. This is a case where the owner of a single parcel of land signed the petition, and the engineer determined that the area requiring drainage was limited to that owner’s property. The validity of the petition was confirmed.
The engineer provided detailed evidence explaining why drainage was not needed for the elevated lands upstream of the subject property and for the lands downstream. He explained that a natural topographical ridge on the subject property trapped surface flows that would otherwise continue off the property. The drainage works were designed to carry flows past the ridge.
In his decision, Referee O’Brien reiterated that the “lands requiring drainage” decision must evaluate the objective condition of the land in question. To that, he added that land use factors should also be taken into account. The introduction of land use as a factor in determining an area requiring drainage dates from this decision.
Again, this decision does not suggest that property ownership boundaries are relevant to determining an area requiring drainage.
M&M Farms v. Kingsville (Town), 2004 ONDR 1
The M&M Farms v. Kingsville (Town), 2004 ONDR 1 decision was rendered by Referee D.A. O’Brien and issued on September 29, 2004. In this case, a significant greenhouse was being proposed. The owner of the greenhouse property was the sole signatory on a petition for an outlet for the then-proposed greenhouse. A Mr. Paveo owned most of the lands between the greenhouse property and the proposed outlet receiving watercourse. Mr. Paveo opposed the drainage works and sought to have the petition declared invalid.
In his decision confirming the validity of the petition, Referee O’Brien reflected and acknowledged that:
It becomes harder and harder to apply the saucer concept to the context of modern farming and it has no application whatsoever if the only requirement is to obtain a legal outlet when one is not available.
- Referee O’Brien then decides:
With the above-mentioned considerations in mind, I have concluded in this matter that the “area requiring drainage” is primarily to be found on the lands of M&M Farms Ltd
If Referee O’Brien decided that outlet was the only consideration when determining an “area requiring drainage,” then he did so with disregard for the century-old cornerstone of drainage legislation in Ontario that requires a majority - or now alternatively 60% of the area requiring drainage to establish a municipal drain. Such a determination is also at odds with the intent and purpose of section 4 in the scheme of the Drainage Act. I prefer to understand that he found that the area requiring drainage was primarily on the greenhouse property and, to a lesser degree, on the adjacent Paveo property. If that interpretation is correct, then Referee O’Brien has imaginatively preserved the saucer concept by finding an area requiring drainage near the upper edge of the watershed without breaking the saucer theory. But in doing so, he has pushed the limit of what can be achieved without a legislative amendment to section 4 of the Act.
If, as the Engineer contends, the "saucer" concept is outdated and has been replaced with general criteria that reflect current agricultural and environmental practices to ensure that the Drainage Act remains relevant, the replacement regime should not be a matter of what engineers and others decide the law should be, but rather the replacement theory first needs to be entrenched and reflected in the Drainage Act by way of legislative amendment. Until then, a landowner’s desire for a legal outlet is a factor but is not the only consideration and does not trump all other considerations.
That said, again, this M&M Farms v. Kingsville (Town) decision does not suggest that property ownership boundaries are relevant to determining an area requiring drainage on either or both of the greenhouse or the Paveo property.
Brzeczka v Niagara on the Lake (Town), 2022 ONDR 1
This Brzeczka v Niagara on the Lake (Town), 2022 ONDR 1 decision was issued by Referee R.G. Waters on October 19, 2022. The issue in this case involved determining the validity of a petition and whether the engineer’s report responded to the petition.
The petition was signed by one landowner by the name of Lament. Mr. Lament owned two properties, one to the east and the other to the west of an intervening holding owned by a Mrs. Watson. The west Lament property abutted on the west side of the Watson property, and the east Lament property abutted on the east side of the Watson property.
The Lament petition specified the east property only. After much debate, the correction of errors in the engineer’s report and not a little confusion, Referee Waters upheld the validity of the petition. He went on to express his grave concern about the validity of the engineer’s report and deferred any decision about setting aside the engineer’s report to give the engineer an opportunity to correct errors and make changes to the drainage works to reflect the area requiring drainage as identified in the petition and to do so in consultation with the engineer for the appellants. I am not aware that a revised engineer’s report has yet been endorsed by Referee Waters or otherwise.
This decision identifies land use considerations, physical characteristics, and environmental factors as relevant when determining an area requiring drainage for the purpose of section 4 of the Drainage Act. However, again, it does not suggest that property ownership boundaries are relevant to the determination of an area requiring drainage.
Melidy v Holland Marsh Drainage System Joint Municipal Service Board, 2023 ONDR 6
- Melidy v Holland Marsh Drainage System Joint Municipal Service Board, 2023 ONDR 6. This is a decision of Acting Referee A.C. Wright issued on February 25, 2023. The issue was the area requiring drainage. In concluding that the petition was not valid, the Referee found that the engineer used property boundaries rather than topographical data and that he discounted or ignored the topographical information provided by the petitioner and obtained none for himself. After reviewing most of the authorities mentioned above, the Acting Referee observed:
Nowhere in this is there any suggestion that property boundaries are a relevant factor in determining the area requiring drainage for the purpose of section 4 of the Drainage Act
Area Requiring Drainage and Property Ownership Boundaries
The first question set out in paragraph 49 above is: Was the Engineer correct to define the area requiring drainage by reference to property ownership boundaries?
Physical topographical features or characteristics, land use considerations, the need for an outlet, environmental factors and the petition itself are relevant when determining an area requiring drainage for the purpose of section 4 of the Drainage Act. Property ownership per se is not a factor.
The Engineer’s Expert Report deals at some length with the use of property lines when determining an area requiring drainage.32 He speaks about challenges about ownership boundaries when a ravine or swale forms a property boundary or crosses a property. He refers to riparian access to a sufficient outlet and how ownership boundaries differentiate which land is riparian and which is not. He refers to ownership boundaries being used in the context of usability, such as defining farm fields or development areas of more intensive or commercial-focused uses.
Property ownership boundaries can provide a convenient and accurately ascertainable means of describing the limits of relevant factors. For example, the ownership boundary of a gravel pit may be a convenient and useful way of describing the location of the physical topographical feature which the gravel pit represents. The ownership boundary between land used as a vineyard or orchard and abutting land used for pasture, again, can be a convenient and accurate way of describing which land use is which. But in these situations, it is not the ownership boundary per se that is pertinent; it is the land use or physical topographical feature that it represents.
One circumstance comes to mind when an ownership boundary could be relevant to the question of an area requiring drainage for the purposes of section 4 of the Drainage Act. If a property on one side of the boundary has a particular legal status in drainage law and the property on the other side of the boundary does not have that status, the ownership boundary between them becomes relevant. In this case, for example, the Engineer has excluded the Kittel Farm from the area requiring drainage because it is a riparian property with direct access to the Bamberg Creek, whereas the Jananna Farm does not have direct access to the Bamberg Creek. More will be said about this below, but the point here is that the ownership boundary is only relevant in this one narrow instance. This is not intended to preclude the possibility of other contexts in which legal status in drainage law changes across a property boundary and thus becomes relevant to the decision about the area requiring drainage for the purposes of section 4 of the Drainage Act, but my imagination is not fertile enough to think of any.
In this case, the Engineer has used property boundaries to identify land where Janana Corp. has invested in or wishes to invest in systematic tile drainage. The property boundaries, in themselves, are not relevant; they serve as a means of describing where the owner has or wishes to invest in systematic tile drainage, and it is the location or proposed location of systematic tile drainage that the Engineer has taken to be germane to his area-requiring-drainage determination.
Scope of the Petition
The second question from paragraph 49 above relates to the scope of what was authorized by the Petition.
After reviewing the several Referee decisions above, the conclusion is that physical topographical features or characteristics, land use considerations, the need for an outlet, and environmental factors are relevant when determining an area requiring drainage for the purpose of section 4 of the Drainage Act.
These factors must be considered in the context of the Petition, a part of which is the aerial photograph on page 34 of these reasons. That part of the Petition identifies a narrow area on the south half of the east boundary of the Jananna Farm, as “improved drainage required”.
The Engineer, in his Expert Report33, claims that the Petition identified the entire Jananna Farm as the area requiring drainage, excluding the bush to the south and the sandy soils to the north. He goes on at length to discount the aerial photograph attached to the Petition as a supplementary item of little consequence. The Township Clerk has identified that the Petition includes the aerial photograph as a component of the Petition.34 In her viva voce evidence, Ms. Bos, the Township Clerk, said that it was routine for Drainage Act petitions to have maps or plans attached. With respect, I am satisfied that the aerial photograph, which is reproduced on page 34 of these reasons, is an integral part of the Petition as signed and submitted. It is clearly identified by the notation “improved drainage required,” where improved drainage is required for a portion of the south half of the east property limit; there is no similar notation with respect to any other part of the Jananna Farm. The prescribed form of Petition with the aerial photograph attached together represents the benchmark against which the Engineer should have proceeded. The aerial photograph is not to be discounted or ignored.
The West Branch of the Proposed Janana Drain is intended to improve management of drainage on the west side of the Jananna Farm.35 Runoff from most of the Jananna Farm, including all of the west side, flows to the southwest and outlets to the Koch-Leis Drain. There is no suggestion that the West Branch or the Koch-Leis Drain will lessen or alleviate flows that would otherwise go to the southeast.
The drainage problem identified in the Petition is located on the east side of the Jananna Farm, specifically in the area adjacent to its east boundary. By discounting or ignoring the aerial photograph on page 34 of these reasons, the Engineer erred in extending the area requiring drainage and the scope of the proposed drainage works to the rest of the Jananna Farm.
This conclusion does not preclude Jananna Corp. from requesting an improvement of the Koch-Leis Drain under section 78 of the Act to better accommodate flows from their systematic tile drainage and, perhaps, flows from a private drain variation on the West Branch if they choose to install one on their own land.
Was the Engineer Correct to Exclude any part of the Kittel Farm from the Area Requiring Drainage?
- The third and final question set out in paragraph 49 above is:
Was the Engineer correct to exclude any part of the Kittel Farm from the area requiring drainage for the purposes of section 4 of the Drainage Act in the context of the Petition?
- A little more background is required. As said in paragraph 110 above, the drainage problem identified in the Petition is located on the east side of the Jananna Farm, specifically in the area adjacent to its east boundary. The evidence is that there are two aspects of drainage problems on this eastern boundary which have been identified.
The Kittel Pond
The first is the pond on the Kittel Farm. The pond’s location is shown on the aerial photograph attached to the Petition and reproduced on page 34 of these reasons. It is on the west boundary of the Kittel Farm and is to the north of the blue line marked as “Improved Drainage Required.” The pond is in the treed area a short distance south Gerber Road. The pond is spring-fed. The problem is that water from the pond spilled onto the Jananna Farm, creating a 3 to 4-acre marshy area.
Mr. Kittel said he was unaware of this issue until it was raised at one of the public meetings convened by the Engineer. After being informed, he took steps to resolve the problem by installing an impermeable clay liner in the pond with particular strength on the west or Jananna Farm side. He also installed an outlet structure on the south side of the pond to direct any overflow away from Jananna Farm and onto Kittel Farm. This was done in August of 2023.
Mr. Krupnik gave similar evidence but from a Jananna perspective. He did not mention the work done on the pond, but he stated that after the installation of the systemic tile drainage in 2018, the marshy area had shrunk, and the bullrushes and other marshy vegetation had been cleared out so that the area is now cultivated.
Between the clay lining of the pond with an overflow outlet to the Kittel Farm and the systematic tile drainage on the Jananna Farm, this issue has been addressed. It is noted that the top at station 0+598 of the East Branch of the Proposed Jananna Drain includes an inlet catch basin just to the south of this spring-fed pond area.
The Saucer
The second element on the eastern boundary of the Jananna Farm is the pocket of land in the southeastern part of the Jananna Farm referred to in paragraph 20 above. This is the pocket of land where water cannot flow by gravity to the Koch-Leis Drain36. Because the Jananna Farm does not have direct access to the Bamberg Creek for this pocket, the purpose of the Petition is to secure a legal outlet access to the Bamberg Creek. The Engineer advised that the pocket is one acre (0.4 hectares) in size, surrounded by another acre of land that is not systematically tile drained. This two-acre (0.8 hectares) pocket on the Jananna Farm can be and is cropped, although with challenges in wet years delaying access to the land.
As mentioned in paragraph 19 above, much of the Jananna Farm is systematically tile drained with an outlet via the Koch-Leis Drain to Bamberg Creek to the southwest. The two-acre (0.8 hectares) pocket is a small area that cannot be systematically tile-drained by gravity to the Koch-Leis Drain.
This pocket is part of the low-lying “low depressional area” identified on the 2015 aerial photograph, found on page 35 of these reasons. The aerial photograph is from the GRCA website and was attached to the April 24, 2018 Kuntze memorandum referred to in paragraphs 37 and 38 above. This low-lying “low depressional area” has been referred to by the parties as the “saucer” as a short form reference to the depressional area that straddles both the Jananna farm and the Kittel Farm. The part of the saucer on the Kittel Farm is about 5 acres (2 hectares) so larger than the part of the saucer on the Jananna Farm.
In his viva voce evidence, the Engineer acknowledged that if the saucer, or some variation on it, is taken to be the area requiring drainage for the purposes of the Petition, then it would not be a valid petition without the signatures of Mr. and Mrs. Kittel. He says, however, that in his opinion, no part of the Kittel Farm should be included as part of the area requiring drainage for two separate reasons. The first is that the Jananna Farm has a different land use than the Kittel Farm, as it has systematic tile drainage to support the more intensive farming made possible by the investment in tiling, whereas the Kittel Farm does not. The second reason is that the Kittel Farm has riparian access to Bamberg Creek, so it does not require the legal outlet desired by Jananna Corp. The contention is that if the Kittel Farm has a legal outlet, it cannot be included as part of an area requiring drainage.
As mentioned, the first reason is that, with systematic tile drainage, the Jananna Farm is a different land use than the Kittel Farm and is in need of a legal outlet to the Bamberg Creek to support the more intensive farming made possible by the investment in tiling. This extends not only to where the tile drainage investment has been made, but also to where Jananna Corp would like to install systematic tile drainage.
Both the Jananna Farm and the Kittel Farm grow cash crops. They are the same land use. The notion that any land where systematic tile drainage has been installed or is proposed to be installed qualifies as an area requiring drainage for the purposes of section 4 of the Drainage Act is clear evidence of error. There is no threshold investment amount that entitles a landowner to a single signature petition under Section 4 of the Act. It is at odds with the intent and purpose of section 4 in the scheme of the Drainage Act and is inconsistent with the century-old cornerstone of drainage legislation in Ontario that requires a majority - or now alternatively 60% of the area requiring drainage to establish a municipal drain.
The Engineer says in his Expert Report that the saucer concept is both archaic and deficient and that the focus should instead be on legal outlets and utilizing today’s drainage technologies.37 Unless and until section 4 of the Drainage Act is amended by the legislature to authorize a petition by any solitary landowner who declares that their property needs drainage, the Engineer’s paradigm is incorrect in law. This paradigm surfaces repeatedly throughout the Expert Report.
The Engineer’s second rationale for excluding the Kittel Farm from the area requiring drainage is based on its riparian access to the Bamberg Creek. On pages 32 and 33 of the Engineer’s Expert’s Report38, he justifies his exclusion of any part of the Kittel Farm from the area requiring drainage as follows:
Evaluating the extension of the Area Requiring Drainage (ARD) onto neighboring lands is essential for understanding its impact on the petition's validity and the overall drainage project. The Kittel property to the east features a distinctive low-lying, saucer-shaped area that is predominantly located on Mr. Kittel's side. This analysis will clarify whether the saucer is included in the ARD and determine if other features on the Kittel property should also be considered part of the ARD. This precise determination is crucial for ensuring the project's alignment with the Drainage Act and addressing any misconceptions that could affect its progression.
Riparian Rights and Legal Outlets
The Kittel property is positioned riparian to Bamberg Creek, affording it natural drainage rights that negate the necessity for interventions under the Drainage Act. This riparian status allows the property to legally manage water flow from the property directly into the creek without additional infrastructural requirements. Conversely, the Jananna property lacks such riparian benefits, placing it in a position where the Drainage Act becomes essential to establish a legally sanctioned drainage solution.
Mr. Kittel has acknowledged the adequacy of his property’s drainage capabilities through correspondence stating,
"It has been confirmed by independent drainage designers and installers that a suitable outlet already exists and can be achieved without this work" (Page 650 of 1106 of the Engineer’s Productions).
This assertion not only demonstrates awareness of the property’s advantageous position but also solidifies the fact that this property does not require the statutory interventions provided by the Drainage Act, unlike the Jananna property which is dependent on such legal provisions to achieve necessary drainage standards.
This clear distinction in legal drainage rights between the two properties highlights the necessity of the Drainage Act's involvement for the Jananna property to ensure it meets current drainage standards and legal requirements. It stresses the disparity in natural advantages and legal entitlements affecting the drainage strategies applicable to each property.
As I understand the Engineer’s analysis, he is distinguishing between an area requiring drainage for the purposes of section 4 of the Act and an area that could be drained but isn’t. Where an area that could be drained, or a part of it, has feasible, legal, riparian access to a sufficient outlet, that area or part cannot be regarded as an area or part of an area requiring drainage for the purposes of applying section 4 of the Drainage Act. If a landowner has the ability, as a riparian owner, to provide drainage to a sufficient outlet but chooses not to do so, it cannot be claimed that the land requires drainage or is part of an area requiring drainage.
Property boundaries are not pertinent to the determination of an area requiring drainage under Section 4 of the Drainage Act. However, as discussed in paragraph 103 above, if there is a differing legal status or characterization for drainage purposes across a property boundary, the differing legal status should be considered. On that basis, I can agree with the Engineer’s analysis, but I am uneasy about the feasibility of the Bamberg Creek as an outlet for the saucer area on the Kittel Farm. The Engineer’s theory depends upon the outlet to the Bamberg Creek being reasonably feasible.
In March 2023, Mr. Kittel advised Jananna Corp. that he would, at his expense, systematically tile drain the Kittel Farm and, to that end, retained a drainage contractor to design the drainage system39. The proposed Kittel drainage system would provide relief for the part of the saucer on the Kittel Farm, which in turn would provide relief for the part of the saucer on the Jananna Farm. At the time Mr. Kittel made the statement quoted above by the Engineer in an April 12, 2023 presentation, Mr. Kittel had presented his proposed drainage plan, and the Engineer and the Drainage Superintendent were already aware that it was not feasible and would not work if attempted.
The Drainage Superintendent and the Engineer were aware that the Kittel proposal would not work unless the Bamberg Creek was deepened.40 There is an e-mail exchange between the Drainage Superintendent and the Engineer on April 7, 2023 about a discussion between the Drainage Superintendent and a tile drain installation contractor about the Kittel plans for tiling the Kittel Farm. The Drainage Superintendent wanted to be sure the contractor knew and that he had told Mr. Kittel that his tile plan would not work effectively unless the Bamberg Creek was cleaned out.41 In his viva voce evidence, the Engineer confirmed what he had told Mr. Kittel at their February 9, 2023 meeting42 that he had no difficulty with the tile drainage proposal for the Kittel Farm, but he also confirmed that he later determined that it would not work, in the sense of an adequate outlet, unless the Bamberg Creek was deepened.
The sufficiency of the Bamberg Creek as an outlet for the Kittel Farm, and therefore its feasibility, would appear to depend upon the work contemplated by the Engineer’s Report for the Bamberg Creek Drain, 2023.
The applicant’s engineering expert, Mr. Verspagen, gave confirming evidence that drainage of the low-lying saucer on the Kittel Farm would not be possible unless the Bamberg Creek was lowered. He also gave evidence that, to make available adequate fall from the saucer area on the Kittel Farm, the Bamberg Creek would need to be lowered more than was proposed in the Engineer’s Report.
The Engineer excluded the Kittel Farm from the area requiring drainage on the theory that it had riparian access to the Bamberg Creek for outlet and, therefore, did not require drainage. For that theory to apply, it must be reasonably feasible for Mr. Kittel to gain access to a sufficient outlet in the Bamberg Creek from the saucer area on the Kittel Farm. Leaving aside the feasibility of the cost of all this, Mr. Kittel lacks the authority to clean out and deepen Bamberg Creek from the Kittel Farm downstream. Unless the Bamberg Creek is lowered to the extent necessary to provide a practical sufficient outlet for drainage from the Kittel Farm, the Bamberg Creek does not represent a reasonably feasible, sufficient outlet to support the Engineer’s rationale for excluding any part of the depressional area on the Kittel Farm from the area requiring drainage under section 4 of the Act.
Theoretically, the Jananna Farm also has riparian access on the west side of the Jananna Farm to the Koch-Leis Drain and thence to the Bamberg Creek. The Engineer was asked about the feasibility of conveying water to the west via an open ditch or a pipe through the bush at the rear (south) of the Jananna Farm. This improbable hypothetical was posed in the context of considering what constitutes outlet feasibility. Again, leaving aside the feasibility of the cost, the Engineer calculated that the saucer area on the Jananna Farm was too low and too far from Bamberg Creek via the Koch-Leis Drain to be feasible technically.
On the evidence, both the Kittel and the Jananna sides of the saucer are alike in that both have technical riparian access to the Bamberg Creek for outlet, but neither has reasonably feasible riparian access to that outlet.
It should be said that this discussion of feasibility overlooks the cost factor. But cost is a relevant factor, though not in this case. In other circumstances, there will be a tipping point between prohibitively high and reasonably feasible costs for accessing a sufficient riparian outlet.
The conclusion is that the Engineer erred in excluding any part of the saucer area on the Kittel Farm from the area requiring drainage under section 4 of the Act on the grounds that the Kittel Farm has riparian access to the Bamberg Creek because it does not represent a reasonably feasible, sufficient outlet for the Kittel Farm.
Other Considerations
As previously mentioned, the petition, physical topographical features or characteristics, land use considerations, the need for an outlet, and environmental factors are relevant when determining an area requiring drainage for the purpose of section 4 of the Drainage Act. Physical topographical features or characteristics and outlet have been discussed. There is no difference in land use because both farms are being cash-cropped, so in this case, land use is not a consideration in determining the area requiring drainage for the purposes of section 4 of the Drainage Act. Environmental factors constrain the extent to which each of the farms can be used for agricultural production because of the Bamberg Creek and its associated wetlands, flood plain and woodlots on either side of that watercourse, but, again, in this case, these things are not considerations in determining the area requiring drainage for the purposes of Petition under section 4 of the Drainage Act.
Conclusion
The Engineer is entitled to great deference with respect to the question of the area requiring drainage for the purposes of section 4 of the Drainage Act, and his conclusions ought not to be disregarded except when there is clear evidence of error or unless a question of law is involved. But if his conclusion is patently wrong, it cannot stand.
In determining the area requiring drainage for the purposes of section 4 of the Drainage Act in the context of the Petition, the Engineer has erred in the following respects:
(a) The Engineer did not understand or accept that the aerial photograph found on page 34 of these reasons is an essential part of the Petition which seeks a drainage solution for an area along the east boundary of the Jananna Farm identified on the photograph as “improved drainage required”.
(b) The Kittel Farm has been excluded from the area requiring drainage on the basis that it has an outlet by way of riparian access to the Bamberg Creek, notwithstanding that the Engineer was aware that the exercise of such riparian rights is not feasible and would not work if attempted.
(c) The Engineer has justified his area requiring drainage exclusively on the basis of drainage outlet for systematic tile drainage installed or proposed, notwithstanding that the bulk of the Jananna Farm has an existing operational legal outlet to the Bamberg Creek via the Koch-Leis Drain.
(d) The Kittel Farm has been excluded from the area requiring drainage on the basis that it represents a different land use than the Jananna Farm, despite both being used for the agricultural production of cash crops. The existence of, or proposal for, investment in systematic tile drainage does not constitute a change in land use.
(e) Because the Engineer has determined the area requiring drainage exclusively based on drainage outlet, the Engineer has ignored physical topographical features and characteristics, dismissing the traditional “saucer” concept as archaic and deficient. Unless and until section 4 of the Drainage Act is amended by the legislature to authorize a petition by the owner of a single parcel of land who declares that their property needs drainage, the Engineer’s paradigm is incorrect in law.
- Whatever the area requiring drainage may be, in this case, it includes some part of the saucer on the Kittel Farm. The Engineer’s determination of the area requiring drainage is in error, so his conclusion that the Petition is valid cannot be maintained. The Petition is therefore declared to be invalid because the Engineer did not correctly identify an area requiring drainage for the purposes of section 4 of the Drainage Act in the context of the Petition. With that conclusion, the Engineer’s Report must be set aside, and the provisional by-law adopting it must be quashed.
Costs
- As to 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 May 27, 2025.
Andrew C. Wright Acting Drainage Referee
Aerial Photograph That is Part of the Petition
Aerial Photograph Attached to Kuntze April 24, 2018 Memorandum
Footnotes
- Exhibit 5, Tab 1, pages 2 to 15 of the Engineer’s Affidavit of Documents.
- Exhibit 5, Tab 2, pages 17 to 19 of the Engineer’s Affidavit of Documents.
- The Petition is also reproduced in Exhibit 17, Exhibit “A” on pages 5 to 7 of the affidavit of Kaitlin Bos sworn February 6, 2025; she is the