White v Niagara Falls (City), 2026 ONDR 2

CITATION: White v Niagara Falls (City), 2026 ONDR 2

DATE OF DECISION: 2026-04-13

Court File No.: CV-16-00011326-0000 (Welland)

BETWEEN:

DAVID WHITE

Plaintiff

and-

THE CORPORATION OF THE TOWN OF FORT ERIE; and

THE CORPORATION OF THE CITY OF NIAGARA FALLS

Defendants

ACTING DRAINAGE REFEREE

ANDREW WRIGHT

HEARING HELD THE 7th and 8th DAYS

OF APRIL, 2026

ORDER

The Court of the Drainage Referee held a hearing with respect to damages in this action on April 7 and 8, 2026, and after receiving the evidence of the witnesses called by the parties and having heard the submissions of counsel for the parties, for the reasons that follow:

THIS COURT ORDERS that

The action is dismissed.
As to costs, if the parties are unable to agree, each party may make written submissions to the presiding Acting Drainage Referee within 30 days.

Dated at London this April 13, 2026.

____________________________________ Andrew C. Wright Acting Drainage Referee

REASONS

For the purposes of these reasons and the Order (the “Order”) to which these reasons are attached, unless the context requires a different meaning:

(a) The “1948 Grassie Engineer’s Report” means the Report for the repair and improvement of the St. John’s Marsh Drain dated October 11, 1948, issued to Willoughby Township and signed by C.A. Grassie, Engineer, with assessment schedule and plan for the St. John’s Marsh Drain in the Townships of Bertie and Willoughby, adopted by the Township of Willoughby By-law No. A-115 and by the Township of Bertie by By-law No. 1455.¹

(b) The “2016 K. Smart Engineer’s Report” means the Report on the St. John Marsh Drain 2016 issued to Fort Erie on April 8, 2016, by K. Smart Associates Limited and signed by Neal Morris, P.Eng., with respect to the St. John Marsh Drain 2016, including plan and profile. This report was provisionally adopted by two readings of Fort Erie By-law 115-2016 on October 24, 2016. The Court of Revision met on November 23, 2016 and again on 2017-02-22 and made minor assessment changes.

(c) The “2016 Revised K. Smart Engineer’s Report” means the revised report dated November 23, 2016, issued to Fort Erie by K. Smart Associates Limited (Neal Morris) with revisions to reflect assessment schedule changes ordered by the Court of Revision, which report was adopted by Fort Erie By-law 115-2016 finally passed on April 24, 2017.

(d) The “2017 Spriet Engineer’s Report” means the Report on the St. John Marsh Drain 2017 issued to Niagara Falls on November 1, 2019, by Spriet Associate Engineers & Architects and signed by J.R. Spriet, P.Eng., with respect to the St. John Marsh Drain 2017, including plan and profile. This Report was provisionally adopted with the first and second readings of Niagara Falls By-law No. 2017-130 on November 28, 2017.

(e) The “2019 Tribunal Decision” means the decision of the Drainage Tribunal issued February 7, 2019, with respect to the 2017 Spriet Engineer’s report on the St. John's Marsh Drain now reported as St. John’s Marsh Drain 2017 (RE), 2019 ONAFRAAT 2.

(f) The “2019 Revised Spriet Engineer’s Report” means the 2017 Spriet Engineer’s Report as revised and issued to Niagara Falls on October 30, 2019 and signed by J.M. Spriet, P.Eng., to reflect the 2019 Tribunal Decision, which report was adopted by Niagara Falls By-law No. 2017-130 as finally passed on December 12, 2019.

(g) The “Act”, sometimes referred to as the “Drainage Act”, means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.

(h) The “Conservation Authority” means the Niagara Peninsula Conservation Authority.

(i) The “Conservation Authorities Act” means the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended.

(j) The “Drain” or “St. John’s Marsh Drain” means different things depending upon when it is being referred to:

(i) From 1948 until April 24, 2017, the Drain means the physical infrastructure components of the drainage works constructed under the authority of the Drainage Act in accordance with the 1948 Grassie Engineer’s Report;

(ii) From April 24, 2017, until January 25, 2021, the Drain means the physical infrastructure components of the drainage works constructed under the authority of the Drainage Act in accordance with the 2016 Revised K Smart Engineer’s Report and the 1948 Grassie Engineer’s Report to the extent that it was not superseded by the 2016 Revised K Smart Engineer’s Report; and

(iii) After January 25, 2021, the Drain means the physical infrastructure components of the drainage works constructed under the authority of the Drainage Act in accordance with the 2016 Revised K Smart Engineer’s Report and the 2019 Revised Spriet Engineer’s Report.

(k) The “Drainage Tribunal” means the Ontario Drainage Tribunal before 1990, when the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) took over the administration of the Drainage Act and “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal thereafter.

(l) The “City” or “Niagara Falls” means The Corporation of the City of Niagara Falls, for itself, and as the administrator of the Drainage Act within its territorial limits.

(m) “Niagara Region” means the Regional Municipality of Niagara.

(n) “Port Colborne” means The Corporation of the City of Port Colborne, for itself and as the administrator of the Drainage Act within its territorial limits.

(o) The “Referee Rules” means Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.

(p) “Referee Waters” means Robert G. Waters, B.A., LL.B., the now retiring Drainage Referee in Ontario.

(q) the “Statutory Powers Procedure Act” means the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, as amended.

(r) The “Town” or “Fort Erie” means The Corporation of the Town of Fort Erie, for itself and as the administrator of the Drainage Act within its territorial limits.

(s) The “Township of Bertie” or “Bertie Township” means the former Corporation of the Township of Bertie, which is the predecessor of Fort Erie with respect to the St. John's Marsh Drain.

(t) The “Township of Humberstone” or “Humberstone Township” means the former Corporation of the Township of Humberstone, which is the predecessor of Port Colborne with respect to the St. John's Marsh Drain.

(u) The “Township of Willoughby” or “Willoughby Township” means the former Corporation of the Township of Willoughby, which is the predecessor of Niagara Falls with respect to the St. John's Marsh Drain.

(v) The “White Property” means that lands described as being part of Lot 11, Cross Concession in the geographic Township of Willoughby, (PIN 64251 – 0169 Lt). The assessment roll number for the White property in Niagara Falls is 27-25-130-004-219-000000; it is municipally known as 5981 Willow Road, Stevensville; and it comprises about 22 acres (8.9 hectares).

The concession in the geographic Township of Bertie, now in the Town of Fort Erie, between the north boundary of Fort Erie on the north and Netherby Road (Niagara Regional Road No. 25) on the south is referred to in Engineer’s reports issued by Spriet Associate Engineers & Architects as the Second Cross Concession and in Engineer’s reports issued by K. Smart Associates Limited it is referred to as the Broken Front Concession of geographic Township of Bertie. No witness giving evidence was able to confirm which is correct, so for the purposes of this Order and reasons, that concession will be referred to as the Broken Front Concession of the geographic Township of Bertie.
Throughout the Order and these reasons therefor, underlined text indicates a hyperlink connection.

Parties and Representation

The applicant, David White, is represented by Samuel Kirwin, a lawyer with the Law Office of Samuel Kirwin Professional Corporation.
The respondent, Niagara Falls, is represented by Brian Chung, a lawyer in the Toronto offices of Aird & Berlis LLP.
The respondent, Fort Erie, is represented by Eric Florjancic, a lawyer in the Windsor office of Legal Focus LLP.

Documents and Exhibits

At the time of the damages hearing in April 2026, the documents listed in the Appendix commencing on page 48 below are the documents of record.

Background

To understand the dynamics in this case, some background is required.
The plaintiff, David White, and his parents, George and Catherine White, purchased the White Property in 1980 as joint tenants; George and Catherine White (undivided ½ share) and David John White (undivided ½ share. The land transfer to them was registered on November 4, 1980, as instrument No. 363015². At the time, the land had a frontage of 933.4 feet (284.5 metres) on the Willow Road road allowance and a depth of 1,101.53 (335.75 metres) and was said to comprise 23.68 acres (9.6 hectares) more or less. After acquiring the White Property, David White lived there for about a year, then moved out when his parents moved in. His parents lived in the house until his father died on February 3, 2010, and thereafter, his mother lived in the house. The plaintiff moved in with his mother until her death in 2018, and he lives alone. When he wasn’t living on the White Property, the plaintiff lived in Fort Erie.
David White transferred his interest in the 23.68 acres (9.6 hectares) to his parents as joint tenants by land transfer registered as instrument No. RO413145 on July 24, 1983.
A two-acre (0.8-hectare) parcel at the southwest corner of the property was severed off as a retirement lot and transferred to David White on January 30, 2004. The severed lot had frontage of 210.0 feet (64.01 metres) on Willow Road and a depth of 415.0 feet (126.49 metres)³. After George White’s death on February 3, 2010, the severed lot was sold to third parties in 2012. A residence has since been constructed on the severed lot.
In 2013, Catherine White, as the surviving joint tenant, transferred the remaining 22-acre (8.9-hectare) White Property to herself and David White, as joint tenants, by a transfer registered on September 24, 2013, as instrument SN386485. The White Property was transferred to David White alone by land transfer registered as instrument SN534482 on November 21, 2017. Catherine White has since passed away in 2018.
David White did not have a registered ownership interest in the White Property between July 22, 1983, and September 24, 2013.
The White Property comprises about 22 acres (8.9 hectares). It is located on the north side of Willow Road. Willow Road is the boundary between Niagara Falls (formerly Willoughby Township) to the north and Fort Erie (formerly Bertie Township) to the south. The travelled portion of Willow Road runs east and west until it reaches about mid-point along the frontage of the White Property, where it makes a 90⁰turn to the south. East of this 90⁰turn, the road allowance is unopened.
After it turns south, Willow Road continues for one concession, the Broken Front Concession in the geographic Township of Bertie, now in Fort Erie, to Netherby Road, a major east-west regional road (Regional Road 25). This section of Willow Road will be referred to as the “north-south portion of Willow Road”.
Willow Road is a paved secondary road without shoulders. Willow Road is load-limited near the White Property. There is a grassed roadside swale on the north side and a shallow roadside ditch on the south side of Willow Road. In the locality of the White Property, it appears that the roadside swale and ditch flow from west to east, with a culvert beneath Willow Road as it turns south in front of the White Property. There are no municipal water mains, sanitary sewers, storm sewers, or sidewalks.
There is a residence on the White Property. It faces south toward Willow Road just as it, Willow Road, turns to the south. The residence is set back from the travelled paved portion of the road by about 30 metres (100 feet). There is also a detached garage located a little to the north and east of the house, and a gravel driveway from Willow Road located east of the house and west of the garage. There are also buildings behind the house and behind the garage. There is an area of about 1.21 hectares (3.0 acres) around the house, garage and the two buildings to the rear, which is maintained as lawn with tree cover.
At the rear or north part of the White Property, there is a scrub bush wetland area in which there is a small pond. This scrub bush area is about 1.21 hectares (3.0 acres) in size and is located in the middle of the north boundary of the White Property. There is a watercourse or creek flowing from south to north on the west side of the White Property; the watercourse or creek flows into the scrub bush wetland area, whence it dissipates into the marsh wetlands located to the north on land owned by the Conservation Authority, about which more will be said in paragraph 22 below. The 6.47-hectare (16.0-acre) balance of the 8.9-hectare (22-acre) White Property is vacant for agricultural use. The plaintiff’s evidence is that he rents 4.86 (12.0 acres) of the arable land for soybean and wheat crops⁴ and grows a quarter acre (0.10 hectares) of squash for personal consumption⁵.
The distances and areas given in paragraphs 17 and 18 above and paragraph 28 below appear precise because they are rounded to as many as two decimal places. That is a function of converting between metric and imperial measurements. The measurements, however, are realistic estimates derived from scales on plans and maps. The purpose is to provide a description of what exists on and in the vicinity of the White Property.
There are some agricultural land uses in the area around the White Property, with significant tracts of bush and scattered non-farm residential development. One such non-farm residential lot is the severed lot taken off the southwest corner of the White Property.
The White Property and much of the surrounding lands are designated Prime Agricultural Area by the Regional Official Plan. In the Niagara Falls Official Plan, the lands in Niagara Falls are designated Good General Agriculture and Environmental Protection Area. Lands to the south in Fort Erie are designated by the Fort Erie Official Plan as Agriculture and Environmental Protection.
There is also land abutting the north side of the White Property, owned by the Conservation Authority as part of the 222.6-hectare (550-acre) Willoughby Marsh Conservation Area. The Conservation Authority describes its conservation area as a swamp ecosystem, which is one of the most extensive forested wetlands in the eastern part of the Niagara Peninsula. It is a relatively untouched space with no formal trails or facilities, where birdwatching, seasonal hunting, and passive recreational activities can be enjoyed.
Perhaps it is useful to differentiate between a swamp and a marsh, as both are used in connection with the Willoughby Marsh Conservation Area. The main difference is vegetation: marshes are dominated by soft-stemmed grasses, reeds, and other herbaceous plants, while swamps are forested wetlands with woody plants like trees and shrubs. Both are types of wetlands that are saturated with water, either permanently or seasonally, but it is the dominant plant life that distinguishes them. Much of the 222.6-hectare (550-acre) Willoughby Marsh Conservation Area is swamp.
The Willoughby Marsh Conservation Area is identified as a wetland for the purposes of the Conservation Authorities Act Regulation O.Reg. 41/24: Prohibited Activities, Exemptions and Permits, as amended. The Willoughby Marsh Wetland Complex was first identified as a Provincially Significant Wetland by the Ministry of Natural Resources in September 1984. The wetland extends into the White Property to a limited extent, closely adjacent to its north boundary. Much of the White Property is under Conservation Authority regulation⁶.
Predominantly, the White Property drains northward into the Conservation Authority lands. There may be situations in which surface water from the Conservation Authority wetland flows back over the north boundary of the White Property. As mentioned, a natural watercourse or creek flows northerly on the west side of the White Property. It conveys water into the wetland at the rear of the White Property, thence to the Conservation Authority land. This watercourse also carries water from lands to the south in Fort Erie. There is a large wetland/bush area in the Broken Front Concession of the geographic Township of Bertie, now in Fort Erie, between Willow Road and Hetherby Road, which drains to the north. A considerable area in Fort Erie, between Willow Road and Netherby Road, west of the north-south portion of Willow Road, contributes water that flows north through the White Property. Much of this area in Fort Erie has been developed for non-farm residential uses or small hobby-farm holdings.
The northbound water crosses from south to north via twin 500 mm (20-inch) culverts under Willow Road in a location west of the White Property at the westerly lot line of the previously mentioned severed lot. The creek watercourse flows northerly along the westerly lot line of the severed lot for a distance before bending to the northeast and then crosses into the west side of the White Property. The banks of the channel of the natural watercourse or creek dissolve as a well-defined channel as it flows into the vegetation of the Willoughby Marsh Conservation Area marsh; the water from the watercourse/creek dissipates into the marsh and swamp wetland⁷.
The natural watercourse or creek is not part of a municipal drain under the auspices of the Drainage Act. The flow of water from Fort Erie lands south of Willow Road, and through the twin 500 mm (20-inch) culverts under Willow Road, is not part of a municipal drain.
The St. John's Marsh Drain, as described in the 1948 Grassie Engineer’s Report, flows southeasterly from the northwest area of the original farm Lot 11, 1^st Cross Concession, in the geographic Township of Willoughby. That northerly part of Lot 11 is owned by the Conservation Authority. The north boundary of the original farm Lot 11 is about 480 metres (1,575 feet) north of the north boundary of the White Property. The location of the St. John's Marsh Drain in Lot 11 is approximately 335.28 metres (1,100 feet) north of the north limit of the White Property; that intervening distance between the White Property and the location of the Drain is swamp and marsh wetland. Attached on page 46 below is an extract of the Plan from the 2019 Revised Spriet Engineer’s Report; it shows the location of the Drain relative to the White Property. For perspective, the east boundary of the White Property is 335.75 metres (1101.53 feet) long⁸.
The St. John's Marsh Drain flows from Conservation Authority land in Lot 11 to and through land owned by others in Lot 10, 1^st Cross Concession in the geographic Township of Willoughby. It flows southerly across Lot 10, across the municipal boundary into geographic Bertie Township, now in Fort Erie. It continues southerly across Netherby Road for several farm lots to the Canadian Pacific Railway right-of-way (formerly the Penn Central Railway and Canadian Southern Railway) and outlets just south of the railway into the Marsh Drain in Lot 12, Concession 14, N.R. in the geographic Township of Bertie. The Marsh Drain outlets into Black Creek, which flows easterly into the Niagara River. An estimate of the length of the Drain as described in the 1948 Grassie Engineer’s Report is in the order of 3,200 metres (10,500 feet). It is an open ditch except for road and railway crossings.
In the vicinity of the White Property, the St. John's Marsh Drain flows southerly through Lot 10, 1^st Cross Concession, some 275 metres (902.23 feet) to the east of the east boundary of the White Property. That part of Lot 10 where the St. John's Marsh Drain flows is a wooded, depressional or stream-valley area, which is also governed by Conservation Authority regulations.
As mentioned, predominantly, the White Property drains to the north into the Conservation Authority marsh and swamp lands, though occasionally, surface water from the Conservation Authority wetland flows back over the north boundary of the White Property. The White Property is in the drainage area of the St. John's Marsh Drain, but has no direct connection or access to it. The Conservation Authority lands drain into the upper reaches of the St. John's Marsh Drain, and then flow southeasterly into Lot 10, Cross Concession, geographic Township of Willoughby. Since the Conservation Authority acquired the lands to the north of the White Property in the 1960s, it has made efforts to protect the Willoughby Marsh. The Conservation Authority has done nothing to impede the flow of surface water from the White Property because it augments the wetland features it seeks to enhance.
Where the watercourse or creek flowing from south to north on the west side of the White Property flows onto the Conservation Authority lands, it flows into a marsh, where the water dissipates into the marsh and beyond to the swamp to the north on the Conservation Authority-owned lands⁹. There may have been a time when the watercourse extended into the Conservation Authority-owned land, but since it was acquired by the Conservation Authority in the 1960s, it has gradually silted up due to sediment deposition from upstream soil erosion and has become overgrown with marsh and swamp vegetation. The Conservation Authority has done nothing to impede the natural flow of the watercourse or creek onto Conservation Authority lands, nor has it done anything to interfere with its evolution and associated wetland vegetation. The effect for White Property is that, without direct access to the St. John's Marsh Drain, the capacity of the Conservation Authority lands to assimilate and carry away water from the White Property is insufficient such that approximately 2 to 2.5 hectares (5 to 6 acres) are continuously wet and cannot be worked; and, depending upon the year, parts of the west side of the White Property do not dry out sufficiently to be worked. Five hectares (twelve acres) have been cropped in soybeans and wheat by a tenant farmer since 2014¹⁰.
The St. John's Marsh Drain was located on Conservation Authority land, some 335.28 metres (1,100 feet) north of the White Property boundary. As previously mentioned, attached on page 46 below is an extract of the Plan from the 2019 Revised Spriet Engineer’s Report, which shows the location of the Drain relative to the White Property. For perspective, the east boundary of the White Property is 335.75 metres (1101.53 feet) long¹¹. While more will be explained below, by virtue of the 2019 Revised Spriet Engineer’s Report, the part of the Drain upstream from station 0+950 was formally abandoned as Drainage Act infrastructure in 2021. As appears from the extract from the Plan for the 2019 Revised Spriet Engineer’s Report, on page 46 below, the now abandoned part of the Drain is at least as far north of the White Property as the east boundary of the White Property is long. Station 0+950, as shown on the extract, extends 50 metres (164 feet) into the Conservation Authority lands. Station 0+900 is where the Drain exits the Conservation Authority lands. Station 0+900 is in the order of 220 metres (725 feet) from the White Property across the Belme property, which is closer than any part of the now-abandoned part of the Drain upstream from Station 0+950. The 220-metre (725-foot) distance is comparable to the length of the south boundary of the White property, which is 220.5 metres (723.4 feet) in length¹².
The intervening separation distance between the Drain and the White Property is a marsh and swamp wetland. There is no channel, ditch, or other means of conveying water across the Conservation Authority land from the White Property to the location where the St. John's Marsh Drain existed before its abandonment. Even after the abandonment of the Drain across the Conservation Authority lands upstream from station 0+950 as specified in the 2019 Revised Spriet Engineer’s Report, the Conservation Authority lands continue to drain into the St. John's Marsh Drain downstream from that station 0+950, where it was initially proposed to install a Newbury Weir. That weir was eliminated from the drainage works, so there is no restriction on outlet capacity. The White Property has neither de facto nor legal access to the St. John's Marsh Drain, whether by formal easement or by means of water conveyance authorized under the Drainage Act. The drainage problems on the White Property result from (a) the natural flow of surface water from south of Willow Road into the watercourse or creek across the west side of the White Property and (b) insufficient outlet capacity through the Conservation Authority lands - insufficient capacity in the sense described in paragraph 32 above.
The plaintiff says that there have been drainage problems at the White Property since the late 1980s, in effect, since shortly after he and his parents acquired the White Property and moved in. Although the plaintiff made complaints to municipal authorities, the plaintiff did not give the notice required by section 79 of the Drainage Act until August 10, 2012. Before proceeding with the history, it is essential to review the principles governing section 79 of the Act.

Section 79 Statutory Cause of Action

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.

It is important to understand 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. This will bear upon a purposive interpretation of the liability section of the Drainage Act, namely section 79.
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.
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.
The municipality is the administrator of the Drainage Act. Except to the extent that the municipality is an assessed landowner of roads or other municipal property, 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.
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 live with a less-than-perfect drain rather than 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 by simply 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.
The point is that the Act’s scheme does not fault a municipality for doing little or nothing to keep a municipal drain in good repair after it has been constructed, absent a notice/request for maintenance and repair.
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.
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.
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 he 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.
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 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.
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 insufficient to complete 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 abandonment¹³.
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.
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.
At paragraph 59 of the Erie Shores Divisional Court decision, the Divisional Court said:

In summary,

(a) Damages are recoverable under s. 79(1) of the Act if: (1) there is a causal connection between the condition of the drainage works that a municipality failed to repair or maintain, and the damages claimed; and (2) such damages, which may include economic losses, must flow from or arise out of some physical injury or harm to property.

(b) Damages are only recoverable to the extent that they were suffered 45 days after the delivery of notice under s. 79(1).

In this case, Referee Waters, in his Order issued February 2, 2024, has determined that sufficient notice was given on August 10, 2012. While the 45-day grace period would otherwise expire on September 24, 2012, Referee Waters extended that date to September 24, 2013, to correspond with the date, after August 10, 2012, when the plaintiff acquired a registered ownership interest in the White Property. To extend the date, Referee Waters exercised his discretion under section 113 of the Act. This is all addressed in Referee Waters’ Order issued February 2, 2024, now reported as White v Niagara Falls (City), 2024 ONDR 2. It is not my function to alter Referee Waters’ decision that damages only qualify for recovery under section 79 of the Act if they were incurred after September 24, 2013. My mandate is to quantify the damages caused by the failure to maintain the St. John's Marsh Drain in good repair after September 24, 2013 and to allocate any such damages between the two municipal respondents.

Strict Liability under Section 79 of the Act

It is also important to understand that the statutory cause of action created by section 79 of the Act imposes strict liability. At paragraphs 23 and 24 of the reasons for the decision in the case of Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2022 ONDR 5 (“Erie Shores 2022 Actionability Decision”), the applicants’ submissions were:
The applicants make the point that section 79 of the Act makes the municipality liable to any person affected by the condition of the municipal drain, not just those who are assessed for and who benefit from the municipal drain. The conditions precedent to recovery under section 79 are that sufficient notice be given and that damages have been suffered as a result of the condition of the municipal drain not being in repair as specified in the most recent engineer’s report on the relevant part of the drain. It is then a matter of strict liability with no obligation, the applicants submit, to show, as required by injurious affection at common law, a tort (nuisance, negligence, or trespass) that is otherwise actionable but for the authorizing statute.
It is said by the applicants that the Drainage Act is comprehensive legislation regulating drainage matters, which replaces the common law with respect to drainage matters. The Act establishes a cause of action in section 79, and entitlement to damages under that section is not a question of an expansion of liability, as the Municipality asserts, but is instead a remedy explicitly established by and set out in the Drainage Act. There is no statutory interpretation exercise needed because there is no ambiguity about section 79.
At paragraph 29 of the Erie Shores 2022 Actionability Decision reasons for decision, the court of the Drainage Referee endorsed the applicant’s submissions as a correct statement of the law. The Erie Shores 2022 Actionability Decision was appealed to the Divisional Court, and that appeal was dismissed in paragraph 84 of the Erie Shores Divisional Court decision.

Damages, Causation and Remoteness

While it is not necessary to establish nuisance, negligence, or trespass to establish liability under section 79 of the Act, some elements of tort liability continue to apply to the strict liability of the statutory cause of action. An authoritative statement of the elements of negligence is found in paragraph 3 of the reasons of Chief Justice McLaughlin in the case of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 (“Mustapha”)

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

In the context of the strict liability of the statutory cause of action created by section 79 of the Act, the “duty” is established by section 74 of the Act and the “standard” is derived from the most recent engineer’s report on the municipal drain; it is not, therefore, necessary to consider the duty of care or standard of care elements. However, it is still required, under the statutory cause of action created by section 79 of the Act, to establish, on a balance of probabilities, that the claimant sustained physical injury or harm to property which was caused, in fact and in law, by the non-repair of the municipal drain. Also, under section 79 of the Act, the physical injury or harm to property must have been caused after the expiration of the 45-day grace period, as extended by Referee Waters in this case.
There are two aspects to causation. “Cause in fact” concerns the proximate cause or the “but-for” test. “Cause in law” has to do with remoteness.
To establish “cause-in-fact”, a claimant must demonstrate that a municipality’s failure to maintain a municipal drain in good repair after the expiration of the grace period was the proximate cause of the physical injury or harm to property; this is the “but-for” test.
The plaintiff must establish that, if the drain had been working properly, the physical injury or harm to property would not have occurred. “Working properly” in this context means that the drain is functioning in accordance with the specifications of the most recent engineer’s report on the municipal drain.
A recent restatement of the meaning and application of the “but-for” test is found in Clements v. Clements, 2012 SCC 32 at paragraph 8. Paragraph 8 has been paraphrased below to reflect that the context is not negligence but rather the statutory cause of action created by section 79 of the Act:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the municipality’s non-repair of the municipal drain, the physical injury or harm to property would not have occurred. Inherent in the phrase “but for” is the requirement that the municipality’s non-repair was necessary to bring about the physical injury or harm to property - in other words, that the physical injury or harm to property would not have occurred without the non-repair of the municipal drain. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, the action against the municipality fails.

To establish “cause-in-law”, a claimant must show that the damage claim arises out of some physical injury or harm to property was not too remote or unrelated to the non-repair of the municipal drain to hold the municipality liable. The concept concerns the extent to which liability should extend to losses suffered by a claimant, and the test is the objective foresight of a reasonable man.
A statement about remoteness or cause-in-law is found in Mustapha, paragraphs 12 and 13:

The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).

The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 1) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 643)

62.              The Wagon Mound is the name of a ship. The defendants negligently allowed oil to spill from their ship into Sydney Harbour.  The case was decided by the Judicial Committee of the Privy Council in the UK on appeal from the Courts in Australia.  The spilled oil drifted to the plaintiffs’ wharf, where repairs were taking place. Although the oil was not thought to catch fire on water, molten metal from welding operations sparked a fire. The plaintiffs’ wharf and equipment were damaged. The Privy Council held that a defendant is only liable for damage that is a reasonably foreseeable consequence of their actions.  Since fire damage was not foreseeable, the defendants were not liable. This principle of risk foreseeability was adopted in Canada by [Mustapha](https://canlii.ca/t/1wz6f).

63.              [Mustapha](https://canlii.ca/t/1wz6f) was a case dealing with a psychiatric disorder attributed to observing a dead fly in a bottle of drinking water.  In [paragraph 14](https://canlii.ca/t/1wz6f#par14), the Chief Justice comments that:

The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.

And she continues in [paragraph 16](https://canlii.ca/t/1wz6f#par16):

To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.

64.              The court in [Mustapha](https://canlii.ca/t/1wz6f) found against the plaintiff. Other cases have cited [Mustapha](https://canlii.ca/t/1wz6f) in relation to the issue of psychiatric disorders, but few have focused on remoteness and reasonable foreseeability in other situations.

65.              While it predates [Mustapha](https://canlii.ca/t/1wz6f) by 20 years, an Ontario decision dealing with farmland is the Ontario Court of Appeal decision in [Kienzle v. Stringer](https://canlii.ca/t/g16zs), [1981 CanLII 1851 (ON CA)](https://www.minicounsel.ca/oca/1981/1851) (“Kienzle v. Stringer”).  The plaintiff was a farmer in Perth County who inherited his farm from his parents.  He rented adjoining land to render the farming operation economical.  He decided to relocate to the Kincardine area, where he could acquire a larger farm.  The purchase of the Kincardine farm depended upon the proceeds of sale of the Perth Farm.  In anticipation of the sale of the Perth farm, the plaintiff surrendered the lease of the adjoining farm.  A title issue with the Perth farm was discovered, preventing the sale transaction from being completed; without the proceeds from the sale, the plaintiff was unable to complete the Kincardine purchase.  The defendant was the solicitor who had certified the title to the Perth farm.

66.              The title problem was solved by paying $10,000 to obtain the missing signature. The Court of Appeal awarded damages for the $10,000 paid to cure the title to the Perth farm.  The income from the Perth farming operation dropped dramatically without the rental of the adjoining farm; the Court awarded $10,000 for the loss of one year’s income (profit net after expenses), saying that one year represented a reasonable period for the plaintiff to untangle himself from the predicament he found himself in when the transactions fell through. After that, the plaintiff was expected to mitigate his own losses.

67.              The Perth farm was relisted and sold for more than the original transaction; the Kincardine transaction was revived, but the purchase price had also increased.  The question was whether the loss of the appreciation on the Kincardine farm, reduced by the appreciation on the Oxford farm, is a recoverable head of damage in the circumstances; the amount of the net loss was $20,200.  The Court of Appeal answered that the loss on the secondary transaction was not reasonably foreseeable and disallowed the claim. The Court also said that it was not necessary to decide whether impecuniosity alone would have precluded the plaintiff from recovering his Kincardine loss. There is a dissent by Justice Wilson, who would have allowed the $20,200 but disallowed the $10,000 damages for lost income.

68.              However challenging it may be to apply, the test for remoteness or causation in law is reasonable foreseeability.

69.              A more recent decision is that of Justice K.A. Jenson in T.C.O. [Agromart Ltd. v. Sutton Farms (Nacona) Ltd.](https://canlii.ca/t/kbckg), [2025 ONSC 1996](https://www.minicounsel.ca/scj/2025/1996) (Agromart).  An employee of the plaintiff, T.C.O. Agromart Ltd. was driving a crop sprayer across a private bridge on the defendant’s land when the bridge broke, and the sprayer fell off the bridge, landing in the Napanee River. The Sprayer was badly damaged, and the cost of its repair exceeded $300,000.00.  The plaintiff was seeking to recover the cost of repairs.

70.              Justice Jenson determined that the defendant owed the plaintiff a duty of care under the [Occupiers’ Liability Act](https://www.ontario.ca/laws/statute/90o02).  At [paragraph 49](https://canlii.ca/t/kbckg#par49) of her decision, Justice Jenson cited [Mustapha](https://canlii.ca/t/1wz6f) for the four essential elements of a negligence claim. In [paragraph 50](https://canlii.ca/t/kbckg#par50), she states that she will skip directly to address the fourth element of the test – causation.

71.              At [paragraph 54](https://canlii.ca/t/kbckg#par54), she refers to the “but for” test of causation, and in [paragraph 55](https://canlii.ca/t/kbckg#par55), she speaks of the legal cause of the damage.  In [paragraph 89](https://canlii.ca/t/kbckg#par89), she finds that the cause of the sprayer falling into the river was the inadvertent steering of the sprayer off the load-bearing part of the bridge.  She then deals with the legal cause of the accident in [paragraph 98](https://canlii.ca/t/kbckg#par98). She cites the Court of Appeal case of [Hemmings v. Peng,](https://canlii.ca/t/k4br5)
[2024 ONCA 318](https://www.minicounsel.ca/oca/2024/318) (Hemmings), which in turn cites the Supreme Court of Canada in [Mustapha](https://canlii.ca/t/1wz6f) and the language from Wagon Mound referred to in [Mustapha](https://canlii.ca/t/1wz6f).  The test is what is reasonably foreseeable in the circumstances.

72.              Justice Jenson found that it was not reasonably foreseeable that the sprayer operator would inadvertently drift off the load-bearing part of the bridge.  It was reasonable for the landowner of the bridge to assume that persons operating farm equipment, such as the sprayer, would have the knowledge, experience and skill to drive it safely across the bridge.  The plaintiff’s claim was dismissed.

73.              Again, however challenging it may be to apply, the test for remoteness or causation in law is reasonable foreseeability.

74.              I wish to add a comment about the Court of Appeal decision in [Hemmings](https://canlii.ca/t/k4br5) because it is cited by Justice Jenson in her [Agromart](https://canlii.ca/t/kbckg) decision.  [Hemmings](https://canlii.ca/t/k4br5) is a medical malpractice case with multiple defendants.  Starting in [paragraph 59](https://canlii.ca/t/k4br5#par59), the Court of Appeal discusses the tests for factual causation and legal causation; when doing so, the Court of Appeal references the Supreme Court of Canada in [Mustapha](https://canlii.ca/t/1wz6f) and the language from Wagon Mound mentioned in [Mustapha](https://canlii.ca/t/1wz6f);  this appears in [paragraph 67](https://canlii.ca/t/k4br5#par67) of the Court of Appeal decision. It is these parts of the [Hemmings](https://canlii.ca/t/k4br5) decision that Justice Jenson referred to in [Agromart](https://canlii.ca/t/kbckg).  The Court of Appeal decision goes on at considerable length to analyze the principles in the context of the evidence in that case with respect to each of the defendants.

Damages Principles

I now turn to issues related to what damages are eligible to be recovered under section 79 of the Act.
As previously mentioned above, in the Erie Shores Divisional Court Decision, the Divisional Court said in paragraph 59:

In summary,

(b) Damages are only recoverable to the extent that they were suffered 45 days after the delivery of notice under s. 79(1).

As was said in paragraph 276 of the reasons given for the June 26, 2023 decision in Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), (“Erie Shores 2023 Preliminary Issues Decision”) 2023 ONDR 5, it seems elementary that there be a causal connection between the non-repair of a component of the St. John's Marsh Drain and the damage arising because of the non-repair.
The Erie Shores 2023 Preliminary Issues Decision was appealed to the Divisional Court. One of the questions put to the Court on appeal was: “Did the Referee err in finding that a claim for damages under s. 79 of the Act is limited to those damages that occur after notice has been delivered? The Divisional Court, in the Erie Shores Divisional Court Decision, answered that question in the negative and dismissed the appeal. With respect to the damages element of the appeal, the Divisional Court disposed of that part of the appeal at paragraph 58.
To be eligible for recovery, the physical injury or harm to property resulting from inundations of the White Property must not have already occurred prior to the expiry of the 45-day grace period, in this case, as extended to September 24, 2013. This includes both losses, costs and expenditures before that date as well as losses and costs incurred and expenditures made afterwards to deal with damage caused by the inundation of the White Property before the expiry of the 45-day grace period, as extended. This principle is grounded on the foundation that the Municipality has no liability until the 45-day notice has been given and the 45-day grace period has expired¹⁴.
The plaintiff’s damages claims are limited to physical injury or harm to property that has occurred after the expiry of the 45-day grace period, as extended, (i) which are additional to any injury or harm that may have already occurred before the expiry of the grace period and (ii) which would not have occurred if Drainage Act authorized drainage works were in good repair as specified in the applicable most recent engineer’s report¹⁵.

Mitigation

In the context of the strict liability of the statutory cause of action created by section 79 of the Act, mitigation is relevant. The general rule is that the aggrieved party must take all reasonable steps to mitigate loss and cannot claim for the avoidable accumulation of that loss. Simply put, a plaintiff is entitled to recover from a defendant damages suffered, but not those that could have been avoided by the plaintiff acting reasonably. In this sense, claimants are said to be under a duty to mitigate.
A plaintiff’s duty to mitigate his/her/its damages was explained by Justice Laskin in Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1975] SCJ No 81 (QL). Although Red Deer dealt with mitigation in the context of a contractual claim, the Supreme Court of Canada in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] SCJ No 5 (QL), affirmed that the same principles applied to tort law.
Justice Wilson in Janiak at para. 33 cited an Australian case, Bucyznski v. McDonald (1971), 1 SASR 569 at p. 573, for guidance on this issue of reasonableness in the mitigation assessment:

I turn now to the question whether the plaintiff has done all that he could reasonably have done to alleviate his condition… The principle to be applied with respect to mitigation of damages in the cost of tort is clear. The plaintiff is “bound to act not only in his own interests, but in the interests of the party who would have to pay damages, and keep down the damages, so far as it is reasonable and proper, by acting reasonably in the matter.” …“If any part of his (the plaintiff’s) damage was sustained by reason of his own negligent or unreasonable behaviour, the plaintiff will not be recouped as to that part.” However, “the question what is reasonable for the plaintiff to do in mitigation of damages is not a question of law, but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant” …once the plaintiff has “made out a prima facie case of damages, actual or prospective, to a given amount”, the burden lies upon the defendant to prove circumstances whereby the loss could have been diminished. Not only must the defendant discharge the onus of showing that the plaintiff could have mitigated his loss if he had reacted reasonably, but he must also show how and to what extent that loss could have been minimized…

In short, the obligation of a plaintiff is to act with prudence. This involves determining (1) the standard required in measuring the plaintiff’s conduct; and then (2) whether, considering that standard, a plaintiff’s conduct was in fact unreasonable. The plaintiff is not expected to take extraordinary measures or all possible steps to mitigate damages.
Before leaving the matter of mitigation, it should be added that a municipality may also have opportunities to mitigate. After receiving a notice under section 79 of the Act, a municipality may wish to undertake mitigation measures if it is not possible to restore the municipal drain within the 45-day grace period. An example would be a repair that involves restoring an outlet channel through a marsh or muskeg, which can only be accessed by the necessary heavy equipment once the ground is frozen. Another example would be a situation in which, as a practical matter, the obligation to maintain and repair a municipal drain can only be achieved in conjunction with and/or by modification of the drain through an improvement under section 78 of the Act, and the Drainage Act process leading to the adoption of a new engineer’s report under section 78 will require more than 45 days. In these circumstances, a municipality may consider measures to mitigate the consequences of non-repair, such as temporarily pumping or diverting water from around homes and barns, using temporary berms or channels to redirect flows into roadside ditches or other suitable outlets. A municipality has the ability and authority to do these sorts of things, which the adversely affected private landowner does not. Damages for non-repair are ordinarily charged to the drain under section 118 of the Act, to be levied in accordance with the most recent assessment schedule. The cost of mitigation measures will also typically be charged to the drain to be similarly assessed. A municipality is not required to implement mitigation measures; however, if it chooses to do so, it must conscientiously weigh the potential savings from avoided damages against the costs of mitigation.

Common Law Obligation of Conservation Authority to Take White’s Water

The common law rules govern natural water flows in the absence of municipal drains. With respect to surface water, under the “natural drainage principle”, a landowner has the right to allow water to flow naturally from a higher elevation to a lower one and, in so doing, to allow water to flow onto a neighbour’s land. The transfer of surface water in this manner is not actionable at common law, regardless of the consequences for the downstream property owner. The upstream property owner cannot be held liable for the resulting consequences of natural topography. Although an upstream owner is not accountable to a downstream owner for natural flows of surface water, the downstream owner is under no obligation to accept surface water flows arriving from neighbouring properties - whether through natural drainage or otherwise. As a result, the downstream owner has the right to block and repel surface water as it comes onto their property and to prevent a natural flow from a neighbouring property, even if this causes injury to the upstream property.
This principle was entrenched in Canadian common law by the Supreme Court of Canada as early as 1899 in the McBryan decision. McBryan v. Canadian Pacific Railway Co., 1899 CanLII 34 (SCC), 29 SCR 359. In that case, irrigation water used by neighbour, Shaw, flowed from Shaw’s property, onto an initial portion of the McBryan property, then through a culvert built by CPR in its railbed (the railway crossed the McBryan lands), ending up on the remaining portion of the McBryan property. To protect his farm from the erosion caused by the incoming flow, McBryan built a berm or dam on the downstream side of the CPR railbed and culvert. The resulting accumulation of water, along the railbed and backing up through the culvert, caused damage to the CPR railbed and the railway sued McBryan for the damage. CPR argued that McBryan should have built his berm on the other side of the culvert, which would have also protected the railbed. In a unanimous decision, the Supreme Court upheld McBryan’s right to protect his land as he saw fit. It stated that if CPR had a grievance against anyone, it was against Shaw for the unnatural flow of irrigation water arriving from his property.
Although the right to block or repel surface water remains an integral part of the common law, Di Gregorio v. Osborne, 2004 CanLII 34423 (ON SC) stands for the principle that when blocking the flow of surface water, the owner of the property that sits downstream is entitled to do no more than is reasonably necessary to protect their land.
The common law treats water flowing through a “watercourse” differently. Unlike water governed by the natural drainage principle, watercourses (natural or human-made) cannot be blocked or repelled by a downstream owner. This principle was confirmed by the Court of Appeal for Ontario as recently as 2005 in Meyer v. McLennan, 2005 CanLII 39858 (ON CA) paragraph 3:

It is common ground that, while the appellant may be entitled to block surface water drainage from the respondents’ property, he is not entitled to block a natural water course running from the respondents’ property onto his.

At common law, a landowner whose lands abutted a natural watercourse has the right to drain his lands into that watercourse. So long as this was done reasonably, downstream landowners whose lands were flooded as a result have no cause of action against the upstream landowner.
This is an overview of the salient elements of the common law. It does not attempt to delve into the intricacies that can apply to the particular facts of individual cases. The overview, however, is sufficient for the purposes of this case. It is also consistent with the summary of the common law in Ontario, found on page 3, under the title “The Common Law”, in the Final Report of the Select Committee on Land Drainage, published in June 1974 in the 4^th Session, 29^th Legislature, 23 Elizabeth II.
These common law principles are subject to the overarching regulations of the Conservation Authority Act. Subsection 28(1) of the Conservation Authority Act prohibits, in any area subject to Conservation Authority regulation, any “activities to straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or to change or interfere in any way with a wetland” without a permit as authorized by subsection 28.1 of the Conservation Authority Act. As previously mentioned, the Conservation Authority lands and much of the White Property are under Conservation Authority regulation¹⁶. The plaintiff ran afoul of subsection 28(1) of the Conservation Authority Act when, in June of 2008, he placed fill near the north boundary of the White Property and made modifications to the watercourse running through the west side of the White Property.
That said, it bears reiterating what was said in paragraphs 31and 32 above. The Conservation Authority has done nothing to impede the flow of surface water from the White Property, as it augments the wetland features the Conservation Authority seeks to enhance. Nor has the Conservation Authority done anything to impede the flow of the natural water course or creek onto the Conservation Authority wetland, which exists and has for some time existed in its natural marsh and swamp wetland state. As mentioned in paragraph 32 above, there may have been a time when the watercourse extended into the Conservation Authority-owned land, but since it was acquired by the Conservation Authority in the 1960s, by a process of natural accretion, it has gradually silted up due to sediment deposition from upstream soil erosion and has become overgrown with marsh and swamp vegetation. The Conservation Authority has done nothing to impede the natural flow of the watercourse or creek onto Conservation Authority lands, nor has it done anything to interfere with its evolution and associated wetland vegetation.

Post-Notice Municipal Responses

I now return to the history of this case. In response to the August 10, 2012, notice of non-repair, Fort Erie appointed K. Smart and Associates Limited to review the situation and report. The result was the 2016 K. Smart Engineer’s Report. This report dealt only with the portions of the St. John's Marsh Drain from the north side of Netherby Road south to the outlet into the Marsh Drain. The reason for this is that the owner of the land in Fort Erie was satisfied with the condition of the St. John's Marsh Drain as it was north of Netherby Road; he did not want it cleaned out, repaired, or improved. The St. John's Marsh Drain under the 2016 K. Smart Engineer’s Report ends on the north side of Netherby Road at station 1+855. This coincides with the outlet for the St. John's Marsh Drain, as identified in the 2017 Spriet Engineer’s Report, which designates the north side of Netherby Road as station 0+000.
The Fort Erie Court of Revision made changes to the assessment schedule in the 2016 K. Smart Engineer’s Report. Those changes were incorporated into the 2016 Revised K Smart Engineer’s Report, which was adopted by Fort Erie By-law 115-2016, finally passed on April 24, 2017. The work contemplated by the 2016 Revised K Smart Engineer’s Report was completed, and a Completion Certificate was issued by K. Smart and Associates Limited to Fort Erie on April 8, 2016.
In response to the August 10, 2012, notice of non-repair, Niagara Falls appointed Spriet Associate Engineers & Architects to review the situation and report. The result was the 2017 Spriet Engineer’s Report. This report addressed the portions of the St. John's Marsh Drain north of the Netherby Road and aligned the outlet with the work done under the authority of the 2016 Revised K Smart Engineer’s Report. This report abandoned much of the upper reaches of St. John's Marsh Drain on the Conservation Authority land upstream from station 0+950. The 2017 Spriet Engineer’s Report proposed the installation of a Newbury Weir at station 0+950 to maintain water levels in the wetlands on the Conservation Authority land. The outlet into the drainage works constructed by Fort Erie under the 2016 Revised K Smart Engineer’s Report is at station 0+000, and extends upstream to the location of station 0+950 on the Conservation Authority lands.
As appears from the extract from the Plan from the 2019 Revised Spriet Engineer’s Report, on page 46 below, station 0+950, being located on Conservation Authority lands, extends the Drain upstream 50 metres (164 feet) into the Conservation Authority lands. Station 0+900 is where the Drain exits the Conservation Authority lands.
The 2017 Spriet Engineer’s Report was appealed by the plaintiff to the Drainage Tribunal. The 2019 Tribunal Decision was issued on February 7, 2019. That decision approved the abandonment of the upper reaches of the Drain on the Conservation Authority lands, but it eliminated the Newbury Weir. To reflect the Drainage Tribunal’s decision, Spriet Associate Engineers & Architects prepared and issued the 2019 Revised Spriet Engineer’s Report on October 30, 2019. It was adopted by Niagara Falls By-law No. 2017-130 as finally passed on December 12, 2019. The work contemplated by the 2019 Revised Spriet Engineer’s Report and a Completion Certificate was issued by Spriet Associate Engineers & Architects to Niagara Falls on January 25, 2021.

Drainage Solutions Had There Been A Valid Petition

A digression is warranted to envision what might possibly have occurred with the 2017 Spriet Engineer’s Report had there been a valid Drainage Act petition at that time for a drainage solution for the White Property.
The on-site meeting was convened by the late John Spriet, P.Eng., on November 3, 2015, in connection with his work on the St. John's Marsh Drain for Niagara Falls. The 2017 Spriet Engineer’s Report states that David White’s contribution at the meeting was to advise that the White Property is subject to frequent flooding from flows originating from Willow Road and from the Conservation Authority lands north of the White Property. He also said that drainage of the White Property had degraded steadily over the years and that it is no longer the productive farmland it once was.
By November 3, 2015, David White had received advice from John Kuntze, P.Eng., in 2012, and from others thereafter, that to solve the drainage problems on the White Property, a petition was required. Without a petition, John Spriet could not have extended the St. John's Marsh Drain beyond what was provided for in the 1948 Grassie Engineer’s Report. With a valid petition under the Drainage Act, Mr. Spriet could have considered the option of establishing a branch of the Drain southerly to give the White Property direct access to the Drain. As importantly, John Spriet could have considered the option of a Branch Drain to the east to give the White Property outlet access to the Drain in Lot 10, 1^st Cross Concession, geographic Willoughby Township or the unopened road allowance immediately south of Lot 10; that location is closer to the White Property than the Drain in the Conservation Authority lands to the north and it would have accommodated the Conservation Authority desire that no work be done to disturb the wetland. Either an open ditch Branch 335.28 metres (1,100 feet) in length, flowing north from the White Property to connect to the Drain, or an open ditch Branch flowing 275 metres (902.23 feet) from the White Property to connect to the Drain to the east, would involve cutting through extensive brush and tree growth to get to the Drain.
Page 5 of the 2019 Tribunal Decision, issued on February 7, 2019, the Drainage Tribunal says:

The Tribunal notes that once a proper outlet is established, as recommended by Mr. Spriet, then petitions could be filed or other methods used to create branch drains if requested and still required at that time by the affected landowners.

On June 6, 2023, David White submitted a Drainage Act Petition to Niagara Falls, saying, “Need a drain to drain my farm”. His was the only signature on the petition. An engineer has been appointed by Niagara Falls, and the Drainage Act process continues.
The preliminary proposal for the drainage works in response to the White petition involves open ditch drainage works flowing to the east 257 metres (843.18 feet) from the White Property, with its outlet into the St. John's Marsh Drain in Lot 10, First Cross Concession in the geographic Township of Willoughby in the vicinity of or on the unopened road allowance for Willow Road¹⁷. The preliminary proposal contemplates both a drainage outlet for the White Property to the east and a diversion of flows from south of Willow Road to the east. An extract of the plan for the preliminary proposal is presented on page 47 below.
The preliminary proposal has not yet been included in an engineer’s report prepared under the Drainage Act, nor has it been considered by the Niagara Falls council. There are potential appeals to the Referee under section 47 of the Act and to the Tribunal under sections 48 and 54 of the Act. If the preliminary proposal survives all the Drainage Act process, the White Property would benefit from such drainage works.

Was There a Lack of Maintenance and Repair of the St. John's Marsh Drain?

The St. John's Marsh Drain was not maintained in good repair, particularly in its location on the Conservation Authority land. The Drainage Tribunal made the following finding on page 7 of the 2019 Tribunal Decision:

The municipalities that are responsible for the St. John’s Marsh Drain have ignored their duty to maintain an important part of their infrastructure for far too many years. This has resulted in environment changes, some of which can be considered positive such as the NPCA wetlands and others which can be considered to have devalued property, such as former farmland becoming marshes. This can be compared to allowing a road to deteriorate to such an extent that not only is it unusable, but in places one cannot even find it.

The Drainage Tribunal also found on the same page that

Mr. White suffers extensively from water drainage issues to the point of negating any agricultural potential of his lands. Furthermore, the weir will aggravate these problems by contributing to flooding the lands which abut the conservation lands.

The Drainage Tribunal does not take into account that municipalities’ liability for not maintaining a municipal drain in good repair is qualified by section 79 of the Act and depends upon notice being given under section 79, for the reasons outlined in paragraphs 37 to 48 above.
The Drainage Tribunal also does not take into account the contribution to the drainage problem of the considerable flow of water from Fort Erie lands south of Willow Road which flow in the watercourse or creek across the west side of the White Property or that the St. John's Marsh Drain, as it was in the Conservation Authority lands, was located some 335.28 m (1,100 feet) north of the White Property boundary and that the White Property had no access to or a direct connection with the St. John's Marsh Drain.
That said, the evidence before the Drainage Tribunal was to the effect that there had been little or no maintenance and repair of the St. John's Marsh Drain on the Conservation Authority lands.
In his May 2, 2012 memorandum report to Fort Erie, John Kuntze, P.Eng., reported that maintenance is required on the St. John's Marsh Drain from the Marsh Drain outlet north to the Netherby Road.¹⁸ He noted that no owners expressed concern about the condition of this reach of the Drain, but he nonetheless proposed cleanout grades which would require a new report under section 78 of the Act because the proposed grades would vary from the grades in the 1948 Grassie Engineer’s Report. Mr. Kuntze reported that his intention was to continue his site examination and survey north from Netherby Road to the Fort Erie/Niagara Falls boundary, but the owner of that land said he did not want a ditch cleanout by way of maintenance, repair or improvement.
Mr. Kuntze reported being approached by Mr. White about his drainage problems. While Mr. Kuntze understood and offered ways and means for Niagara Falls to address them, he reported to Fort Erie that drainage concerns about the White Property were beyond the scope of his appointment to prepare a report on the St. John’s Marsh Drain in Fort Erie.
Based on this memorandum, the report 2016 Revised K Smart Engineer’s Report was processed to adoption by Fort Erie By-law 115-2016, which was finally passed on April 24, 2017. This provided an improved outlet for the upper reach of the St. John's Marsh Drain. I am, however, hard-pressed to understand how the lack of maintenance of the lower reach of the Drain by Fort Erie caused or contributed to the drainage problems encountered by the White Property.
The cause of the flooding of the White Property is a combination of the lack of a sufficient outlet to the north over the Conservation Authority lands and the significant natural flow of surface water from Fort Erie lands south of Willow Road. The Conservation Authority did not want its wetland compromised, so, in an effort to protect the Willoughby Marsh, it neglected the direct riparian access it had to the St. John's Marsh Drain, which led to its disuse and eventual loss.
With all that said, once the portion of the St. John's Marsh Drain on the Conservation Authority lands was abandoned, Niagara Falls has no section 79 liability for damages incurred after the abandonment date, so long as Niagara Falls maintains the part of the St. John’s Marsh Drain downstream from station 0+950 in good repair in accordance with the specifications of the 2019 Revised Spriet Engineer’s Report.
So, the damages which are eligible for recovery under section 79 of the Act are those suffered or incurred after September 24, 2013 and before the abandonment date, so long as Niagara Falls maintains in good repair the part of the St. John’s Marsh Drain downstream from station 0+950 as specified in the 2019 Revised Spriet Engineer’s Report.
The effective date of abandonment depends upon the circumstances and a reading of section 19 of the Act. I digress briefly to say that the abandonment provisions of section 84 of the Act do not have application in the case of an engineer’s report recommending abandonment under the authority of section 19 of the Act: See Goetz v South Bruce (Municipality), 2021 ONDR 2, paragraph 77 to paragraph 86.
Section 19 of the Act provides as follows:

The engineer in the report may recommend the abandonment of any drain or part thereof that is no longer useful or that is being supplanted by a new drainage works.

In the case of abandonment of a drain or part thereof that is no longer useful, the effective date of abandonment is the date of the final enactment of the municipal by-law adopting the engineer’s report. In this case, that would be December 12, 2019, the date when the 2019 Revised Spriet Engineer’s Report was finally adopted by Niagara Falls By-law No. 2017-130.
In the case of the abandonment of a drain or part thereof that is being supplanted by new drainage works, the effective date of abandonment may differ for the various parts of the municipal drain as the old is replaced by the new. For example, if an old pipe is replaced with a new, larger one, the municipality’s obligation to maintain and repair the old continues until the replacement is installed, after which the obligation shifts to the new; and so on down the line until all the new drainage works are completed. If it is significant in a particular case to know when a specific element of the old drainage works was effectively abandoned, it will depend upon the evidence. Otherwise, the effective date of abandonment of the supplanted drainage works is the date of completion of the replacement works. In this case, the Certificate of Completion of the work contemplated by the 2019 Revised Spriet Engineer’s Report was issued by Spriet Associate Engineers & Architects to Niagara Falls on January 25, 2021.
The 2019 Revised Spriet Engineer’s Report describes that, at the on-site meeting held on November 3, 2015, the representative of the Conservation Authority advised that no work would be required on Conservation Authority lands, as that property was part of the Willoughby Marsh. The abandonment of the part of the St. John's Marsh Drain on the Conservation Authority lands was therefore by reason of that part of the St. John's Marsh Drain being no longer useful. The effective date of abandonment in this case is December 12, 2019.
However, abandonment is only part of the story. It was also incumbent upon Niagara Falls to maintain that part of the St. John’s Marsh Drain downstream from station 0+950 in good repair in accordance with the specifications of the 2019 Revised Spriet Engineer’s Report. That was not done until January 25, 2021, when the Certificate of Completion of the work contemplated by the 2019 Revised Spriet Engineer’s Report was issued by Spriet Associate Engineers & Architects to Niagara Falls.
So, the damages which are eligible for recovery under section 79 of the Act are for additional physical injury or harm to property suffered or occurring after September 24, 2013, and before January 25, 2021, which would not have happened had the St. John's Marsh Drain been restored to the condition specified by the 1948 Grassie Engineer’s Report.
After January 25, 2021, there is no municipal liability under section 79 of the Act so long as the St. John’s Marsh Drain is maintained in good repair downstream from station 0+950 in accordance with the specifications of the 2016 Revised K Smart Engineer’s Report as to the lower reach of the Drain and as specified in the 2019 Revised Spriet Engineer’s Report with respect to the upper reach of the Drain. Although there was brief evidence of the removal, in 2024, of the formative elements of two beaver dams, one in Niagara Falls and the other in Fort Erie, there is no evidence or suggestion that the municipalities are not maintaining the St. John's Marsh Drain in the condition specified in those two Engineer’s Reports.

Causation in Fact

Before embarking upon a consideration of the damages claims of the plaintiff, it is important to consider causation. All of the plaintiff’s damages claims proceed on the assumption that the inundations of the White Property are caused by the municipal defendants’ failure to maintain the St. John's Marsh Drain in good repair.
Hypothetically, if, by September 24, 2013, Niagara Falls had restored the St. John's Marsh Drain to the specifications of the 1948 Grassie Engineer’s Report, would it have made any difference to flooding that occurred on the White Property?
As said in paragraph 26 above, the banks of the channel of the natural watercourse or creek flowing northerly across the west part of the White Property dissolve as a well-defined channel as it flows into the marsh vegetation of the Willoughby Marsh Conservation Area wetland; the water from the watercourse/creek dissipates into the marsh wetland and beyond into the swamp to the north. And as said in paragraph 34 above, there is no channel, ditch, or other means of conveying water across the Conservation Authority land from the White Property to the location where the St. John's Marsh Drain existed before its abandonment or where it presently exists near the south eastern boundary of the Conservation Authority lands from station 0+950 to station 0+900 of the 2019 Revised Spriet Engineer’s Report. The White Property has no access to or a direct connection with the St. John's Marsh Drain. The White Property is some 335.28 metres (1,100 feet) away from the hypothetically restored St. John's Marsh Drain and a shorter distance to station 0+950 and station 0+900 of the existing Drain. Such an hypothetically restored Drain on the Conservation Authority land would result in somewhat reduced ground and surface water levels in the immediate vicinity of the Drain, but it would not have drained the 550-acre marsh and swamp wetland or altered, much or at all, the water assimilation capacity of the marsh and swamp some 335.28 metres (1,100 feet) away at the White Property boundary. The existing Drain, extending 50 metres (164 feet) into the Conservation Authority lands near its southeastern boundary, has not drained the 550-acre marsh and swamp wetland or altered, much or at all, the marsh and swamp's water assimilation capacity.
There is no engineering opinion about this. Scientific evidence is not always required. The Chief Justice said the following in the Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181 decision at paragraphs 8 and 9

8The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

9The “but for” causation test must be applied in a robust common-sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

In the context of this case, references in the above quotation to the defendant’s negligence are to be read as the municipality’s failure to keep the Drain in good repair.
The principal point is that the onus is on the plaintiff to establish, on a balance of probabilities, that the additional physical injury or harm to property suffered or occurring after September 24, 2013 and before January 25, 2021, which would not have happened if the St. John's Marsh Drain had been restored to the condition specified by the 1948 Grassie Engineer’s Report.
The plaintiff has provided no evidence that a hypothetically restored St. John's Marsh Drain would have drained the wetland swamp and marsh on the Conservation Authority land. To reiterate what was said in paragraph 127 above, no channel, ditch, or other means of conveying water across the Conservation Authority land exists from the White Property to the location where the St. John's Marsh Drain was located before its abandonment or where it presently exists between station 0+950 and station 0+900 close to the south eastern boundary of the Conservation Authority lands as shown on extract from the 2019 Revised Spriet Engineer’s Report presented on page 46 below. The White Property has no access to or a direct connection with the St. John's Marsh Drain. As said in paragraph 34 above, the White Property had neither de facto nor legal access to the St. John's Marsh Drain. The White Property is some 335.28 metres (1,100 feet) away from a hypothetically restored St. John's Marsh Drain, and the plaintiff has offered no evidence that the water assimilation capacity of the marsh at the boundary and swamp beyond it to the north would be improved by a hypothetically restored St. John's Marsh Drain. The evidence is that the existing outlet to the Drain between station 0+950 and station 0+900 of the 2019 Revised Spriet Engineer’s Report, close to the south eastern boundary of the Conservation Authority lands, a shorter distance northeast of the White Property, has not drained the 550-acre marsh and swamp wetland or altered, much or at all, the water assimilation capacity of the marsh and swamp.
Because the White Property had no access to or a direct connection with the St. John's Marsh Drain, as indicated in paragraph 34 above, the drainage problems on the White Property result from (a) the natural flow of water from south of Willow Road into the watercourse or creek across the west side of the White Property and (b) insufficient outlet capacity through the Conservation Authority lands - insufficient capacity in the sense described in paragraph 32 above. Flooding of the White Property would have occurred and will continue regardless of whether the St. John's Marsh Drain was maintained to 1948 specifications, because it has no riparian outlet to that 1948 Drain.
I am satisfied that, even if, by September 24, 2013, Niagara Falls had restored the St. John's Marsh Drain to the specifications of the 1948 Grassie Engineer’s Report, it would have made no difference to the flooding that occurred on the White Property between September 24, 2013 and before January 25, 2021. Whatever flooding may have occurred on the White Property in that period would have happened whether or not the St. John's Marsh Drain was restored and in good repair. The non-repair of the Drain is not the proximate cause of the flooding of the White Property. Therefore, it is not the cause of any inundation-related physical injury or harm to property for which damages are claimed. The plaintiff has not satisfied the “but for” causation test, on a balance of probabilities.
While this disposes of the action, if it is determined that I am incorrect about the proximate cause of the flooding, I will address the damage claims.

Heads of Damages Claimed

The issues for the damages hearing, as set out in paragraph 17 of the Order issued by Acting Referee Wright on December 22, 2025, now reported as White v Niagara Falls (City), 2025 ONDR 13, relate to the plaintiff’s damage claims for physical injury or harm to property sustained after September 24, 2013 and caused by failure to maintain the St. John's Marsh Drain in good repair as follows:

(a) The calculation of income from cropping of the arable lands on the White Property, excluding losses attributable to George and Catherine White. (See paragraphs 137 to 153 below.)

(b) The accounting regarding restoration (if any) of farm buildings and ponds. (See paragraphs 167 to 191 below.)

(d) The future assessed costs if the petition of June 2023 proceeds. (See paragraphs 192 to 196 below.) and

(e) The proportionate liability for damages, if any, of each of the defendants (see paragraph 50 of the reasons for the Order issued by Acting Referee Wright on December 22, 2025, now reported as White v Niagara Falls (City), 2025 ONDR 13).

In support of his damage claims, the plaintiff has provided a compilation of supporting documentation in the form of an affidavit of documents, sworn July 31, 2025. This affidavit of document has been entered as Exhibit #1 and will sometimes be referred to as the plaintiff’s damages brief. The damages brief runs to 448 pages under 30 Tabs.

Income Loss

The measure of economic loss damages is the value of what is lost or the cost of replacement, supported by documentation such as receipts or appraisals. If the physical injury or damage to property can be repaired or restored, the measure of damages will be the cost of the repair or restoration, again supported by receipts, up to but not exceeding its replacement value. If the physical injury or harm is such that it cannot be feasibly repaired or restored, the measure of damages will be the difference between the value the property had before the physical injury or harm occurred and the value of the property as it has been physically injured or harmed, supported by appraisals. Cronk v. Central Elgin (Municipality), 2018 ONDR 3 falls into this last category.
The quantification of economic loss in this case involves calculating the lost income (i.e., profits net of expenses) from lost or damaged crops that would not have occurred if there had been no flooding of the White Property after September 24, 2013 and before January 25, 2021. By way of example, a farmer plaintiff could prove his economic loss damages by providing historic crop yields from the flooded lands in years when they were not flooded, comparing them to the quantity of crops lost or reduced yields due to flooding, and then applying current market prices to estimate the value or amount of the loss. A comparable approach would be to compare crop yields on other unflooded farms, his own or others, in the vicinity and compare those yields to those from the flooded field and again apply current market prices to estimate the value or amount of the loss. If the crop was not planted or harvested, the market value of the lost crop would need to be adjusted to reflect the expenses of planting, crop maintenance, harvesting, and transportation that were not incurred. With respect to livestock, examples include proving, with receipts, the cost of purchasing replacement fodder or renting alternative pastureland to establish the quantum of recoverable damages. If the claim is based on a non-existent or hypothetical herd or flock, calculating the loss of income becomes complex and depends on numerous assumptions that go well beyond the market sale price per head at the auction yard.
The plaintiff in this case did not provide any such evidence in support of his claim for damages for economic loss of income. At least not until he attempted to do so belatedly in his reply affidavit, sworn March 16, 2026. As explained in paragraph 154 below, the new information was tendered too late in the hearing process to be given any evidentiary weight for the reasons set out in paragraph 181 below. The result is that the plaintiff’s loss of income claim rests on the one-line statement of a financial advisor: “Loss of Income from livestock and hay of $25,000 per year.” The financial advisor goes on to say that the annual loss would be the same “for growing vegetables/squash.”
Before proceeding to the financial advisor’s evidence, it is relevant to describe the plaintiff’s farming activity and his off-farm employment.
Until his retirement in 2018, the plaintiff made his living as a full-time operating engineer¹⁹. An operating engineer operates and maintains heavy machinery, such as bulldozers, excavators, cranes, graders, backhoes, loaders, paving and road-building machines, primarily in construction, industrial, and infrastructure projects. In the plaintiff’s case, his primary work was on Highway 400 series highway construction, operating bulldozers and excavators, though he had other earth-moving work.
The plaintiff has never had a Farm Business Registration for a farm business with Agricorp under the Farm Registration and Farm Organizations Funding Act. His father had such a registration prior to his death in February 2010. After 2010, the plaintiff did not farm but did quite a bit of “bushhogging” grass-cutting to maintain the White Property until 2014, when the plaintiff started renting 5 hectares (12 acres) to a local farmer to grow soybeans and later wheat. The tenant has a farm business registration. The tenant does not pay any rent. From the plaintiff’s perspective, the value to the plaintiff of the lease arrangement is that the tenant maintains the 5 hectares (12 acres), so the plaintiff does not have to. The tenant was entitled to keep whatever he could make from the harvested crop. There is no written lease²⁰.
With respect to livestock on the White Property, there is a reference by the plaintiff to his father still having “maybe eight cows, 20 or 30 sheep” in 2009²¹. There is a reference to the sale of six cows in late 2013²² after his father’s death on February 3, 2010. There is no evidence that the plaintiff had livestock on the White Property after this sale.
There is a reference to the plaintiff growing squash. The plaintiff says that in 2009, he grew and sold 8,500 lbs of squash. He says he would have continued because it was so profitable²³. In his examination on September 30, 2025, the plaintiff says that he grows a quarter acre of squash for personal consumption. He explained that he was told by the Conservation Authority that he could not grow squash on a commercial basis, but was allowed to grow squash for personal consumption; that is what he has done on a quarter acre since 2009²⁴. In these circumstances, there is no loss of income associated with squash after September 24, 2013.
Returning to the financial advisor, there is a one-line statement: “Loss of Income from livestock and hay of $25,000 per year.” The financial advisor goes on to say that the annual loss would be the same “for growing vegetables/squash.” These statements are extracted from a four-page document entitled Loss of Income and Projected Investment Growth for Period: Year 2008 to June 30, 2025. It is unsigned, has a preparation date of July 9, 2025, and is attributed to Mark L. Price, Financial Advisor. It appears under Tab 28 of the plaintiff’s damages brief, starting at page 443.
Mark Price gave evidence regarding this document. He was not qualified as an expert to give opinion evidence. His evidence was that the $ 25,000-per-year figure was given to him by the plaintiff. All of the financial loss information and dates of loss were provided to him by the plaintiff. Mr. Price made no independent investigation or inquiries.
To establish economic loss of income based on opinion evidence, in a case like this, the person offering the opinion should be qualified as an expert witness. Such an expert witness should usually have formal training in accounting or business valuation and experience quantifying financial loss. For income loss, lost profits, or business interruption, the expert would generally have one or more of the following designations:

(a) CPA (Chartered Professional Accountant) – with experience in financial statements, tax returns and farm/business records and profit-and-loss analysis

(b) CBV (Chartered Business Valuator) – especially where there is a going concern business (e.g., farm operation).

Mark Price has none of these credentials. The defendants’ expert, Jim Tracey of Tracey Business Advisor Inc., has. Mr. Price does not tie his $25,000-per-year conclusion to tax returns, farm records, or external data, nor does he explain his calculations in a way that can be evaluated by Mr. Tracey or tested under cross‑examination.
Beyond letters after their name, the expert should be able to demonstrate regular work in damages quantification, such as loss-of-income/loss-of-profits analyses, business valuation in litigation, and quantifying economic loss for civil actions (tort, contract, expropriation, etc.). Mr. Price has no background or experience in this. His work as a financial advisor focuses on life insurance, retail investment and personal financial planning. He does not possess the specialized training or forensic accounting experience necessary to reliably quantify farm income loss.
The expert should be able to explain and defend a transparent methodology. Mr. Price offered no explanation, much less a transparent defence, of the methodology by which he arrived at a $25,000-per-year conclusion, other than what he was told by the plaintiff. It is difficult to reconcile Mr. Price’s assumption of farm income of $25,000.00 per year with current market conditions, given the rent-free leasing of 5 hectares (12 acres) for the growing of soybeans and wheat over the decade since 2014²⁵.
The defendant’s expert, Jim Tracey of Tracey Business Advisor Inc., was commissioned by the defendant municipalities to review the document entitled “Loss of Income and Projected Investment Growth for Period: Year 2008 to June 30, 2025,” prepared by Mark L. Price, Financial Advisor. In his September 26, 2025 critique, it is apparent that Mr. Tracey is flummoxed by the ineptitude of the Mark Price document. That critique document is Exhibit C to the affidavit of Jim Tracey sworn February 26, 2026 marked as Exhibit 3. Mr. Tracey concludes, to paraphrase, that Mr. Price’s document does not meet the requirements of an expert report as outlined by the Canadian Institute of Chartered Business Valuators and that Mr. Price’s document lacks sufficient analysis and disclosure to determine that the calculated loss resulted from the non-repair of the St. John's Marsh Drain. I agree and give no weight to Mr. Price's evidence.
In the plaintiff’s damages brief, the plaintiff has produced copies of his income tax return for 2022 under Tab 1, his income tax return for 2023 under Tab and his income tax return for 2024 under Tab 7. Neither Mr. Price nor the plaintiff explained how the information from those returns had any bearing on calculating the lost income (i.e., profits net of expenses) from lost or damaged crops that would not have occurred if the Drain had been in good repair between September 24, 2013, and January 25, 2021.
To qualify for recovery as damages under section 79 of the Drainage Act, crop losses must have occurred after September 24, 2013, before January 25, 2021. I am satisfied that, during that period, the plaintiff did not farm any part of the White Property that was vacant for agricultural use. There is no reliable evidence from which to quantify the economic loss of income. The onus is on the plaintiff to provide that evidence, and in its absence, I am not going to make an out-of-thin-air estimate.
Before leaving the quantification of crop loss damages, it is important to comment upon the plaintiff’s attempt to bolster his case by introducing new information in his reply affidavit, sworn on March 16, 2026, now entered as Exhibit 7. That information was Statistics Canada Field Crop Reporting for soybeans and wheat in the Niagara Region, coupled with Chicago Board of Trade Pricing for soybeans and wheat. Applying that information to crops that were neither planted, husbanded over the growing season, harvested, nor transported for delivery does not take into account the expense of planting, crop maintenance, harvesting and transportation that were not incurred. The best evidence of the income potential from farming the White Property is that the plaintiff has leased 5 hectares (12 acres) rent-free for the cultivation of soybeans and wheat over the decade since 2014. The new information and approach to crop loss quantification were first raised in a reply affidavit. That affidavit was intended to be a reply to the material filed by the municipal defendants in response to the plaintiff’s damages brief (Exhibit 1) and, incidentally, to be responsive to the questions posed by the presiding Drainage Referee in his letter of March 3, 2026 (Exhibit 6). The information from Statistics Canada and the Chicago Board of Trade is neither. It is, however, indicative that the plaintiff is placing little or no reliance on the opinion of Mr. Price. While the new information is unhelpful to the plaintiff, it would otherwise have been given no evidentiary weight for the reasons indicated in paragraph 181 below.

Legal Expenses

Under Tab 23 of the plaintiff’s damages brief is an affidavit of the plaintiff, sworn on February 19, 2025. In that affidavit, the plaintiff documents the amount billed to him by his several lawyers and a paralegal over a period from 2010 to date. Attached to the affidavit as exhibits are copies of accounts rendered by these legal representatives. The plaintiff seeks to recover his substantial legal expenses of more than $190,000.00 to date. Rather than dealing with legal expenses incurred lawyer by lawyer, they will be addressed by reference to the legal proceedings involved.
Legal expenses were incurred in defending charges under the Conservation Authorities Act. These charges arose from things done by David White on June 14, 2008. There was a conviction on July 28, 2009. While some of the legal expenses extend beyond September 24, 2013, they relate to incidents that occurred in 2008 and do not qualify for recovery under section 79 of the Act because they fall outside the qualifying time period. In any event, they are too remote.
As for legal fees in connection with the Drainage Tribunal, paragraph 5 of the Order at the end of the 2019 Tribunal Decision specifies that: “There shall be no other Order as to costs. All parties shall be responsible for their own costs.” Legal expenses associated with the Drainage Tribunal will need to be segregated out from legal expenses otherwise incurred in connection with this action.
Costs in this action have been and are being reserved for determination at the end. It is not a question of damages; it is a question of costs to be awarded depending, in large part, upon the result.
None of these legal expenses is recoverable as damages under section 79 of the Act.

Sale of Property and Indebtedness

In the same damages brief affidavit under Tab 23 of the plaintiff’s damages brief, the plaintiff seeks to recover, as damages, $63,950.00 he received from selling farm equipment and tractors. He wishes this sum to be adjusted for inflation. In the July 31, 2025 damages brief, the time when the sales occurred is not specified. In his affidavit, sworn March 16, 2026 and marked as Exhibit 7, the plaintiff has added transaction years as well as a couple of additional items for a new total of $71,950.00. The bulk of the farm equipment sales occurred in late 2013 and throughout 2014. This was after the plaintiff’s father died in 2010, when the plaintiff had full-time employment off the farm and when farming of the White Property had ceased. It is to be recalled that the plaintiff had full-time, non-farm employment as a heavy equipment operator until his retirement in 2018.
I digress to observe that the two extra items slipped into this list in paragraph 29 of the reply affidavit (Exhibit 7), sworn March 16, 2026, are barred as procedurally untimely for the reasons indicated in paragraph 181 below.
He seeks to recover, as damages, the $75,000.00 he received in 2012 on the sale of the 2-acre severed retirement lot after his father George White’s death.
He also seeks to recover, as damages, the $11,000 he received upon the sale of his lease on a three-acre parcel of crown land in Temiscamque, Quebec, on August 4, 2024.
The plaintiff also seeks to recover, as damages, over $300,000 in mortgage and other debt he has incurred, allegedly to fund the above-referred-to litigation, i.e., the defence of the Conservation Authorities Act charges, the Drainage Tribunal appeal and this action. The Manulife Bank mortgage²⁶ appears to be a line of credit secured by a mortgage. There are Mastercard and VISA credit card statements²⁷ and two demand 18% promissory notes to private lenders for $80,000.00 dated May 12, 2023 and for $20,000.00 dated December 11, 2023. ²⁸
It is difficult to understand why the plaintiff should be compensated for money he has already received, whether from sales or borrowings. There is no loss. There is no physical injury or harm to property.
There is no “but for” causal connection, in fact, between the sales and borrowing and the flooding of the White Property. As to causal connection in law, using the language of The Wagon Mound (No. 1) case, these claims are far-fetched. Even if there was some loss associated with such sales and borrowings, it is not a reasonably foreseeable result of flooding of parts of the White Property; considering the result in the Kienzle v. Stringer decision and the Agromart decision, the foreseeability of the risk and consequence is too remote, so there is no causal connection in law.

Physical Injury or Harm to Property on the White Property

In cases involving flooding caused by the failure to maintain a municipal drain in good repair, typical claims include the cost of repairing or replacing property damaged by flooded basements and the like. In this case, no such claims have been made.
In support of his claim for damages, in paragraph 27 of his affidavit, sworn March 16, 2026 (Exhibit 7), the plaintiff refers to Exhibit “P” on page 125 of that affidavit. Exhibit “P” is a photograph of handwritten notes on a slip of paper that, without explanation or any substantiation, purport to calculate a volume of 99,060 cubic metres of fill at a unit price of $70.00 per cubic metre, for a total cost of $6,934,200.00 to place fill on the White Property to alter its topography so that it slopes from north to south.
The plaintiff’s rationale for this land-filling project is that the preliminary proposal for the drainage works in response to the White petition referred to in paragraph 103 above is that, under that proposal, the White Property must drain to the south instead of the north. An examination of the preliminary proposal does not support the rationale's premise. Under the preliminary proposal, surface water will continue to flow from south to north and will be intercepted by the open ditch flowing west to east between station 0+455 and station 0+363 of the proposed north branch²⁹. The water from that open ditch enters an inlet structure for the proposed closed tile at station 0+363 and flows south-easterly to the southeast corner of the White Property at station 0+00 of the proposed north branch. While no profile is provided for the preliminary proposal, the closed tile portion of the north branch will have sufficient fall to flow by gravity to its outlet into the west branch at station 0+257 of the west branch. The west branch then flows easterly to the St. John's Marsh Drain. Evidence to this effect was given by Mr. Neal Morris, P.Eng., the engineer formerly employed with K. Smart &Associates Limited, who prepared the preliminary drainage proposal. An extract of the plan of the preliminary proposal is attached on page 47 below. The plaintiff will be able to farm over the underground closed tile. The plaintiff’s rationale misses the point that the surface water from the north boundary of the White Property does not flow southerly across the White Property, but rather it captured near the north boundary, put into an underground pipe which conveys the water from the north to the south via underground pipe to the southeast corner of the White Property, where it discharges to the east away from the White Property. The preliminary proposal does not envisage altering the elevations of any part of the White Property; again, this was confirmed by Mr. Morris in his evidence.
Regrading of the White Property, so that it flows from north to south, is not necessary and defeats the purpose of the north branch of the preliminary proposal for drainage works in response to the White petition referred to in paragraph 103 above. Beyond that, such a land-filling project would most certainly be frowned upon by the Conservation Authority, to the extent that it would affect the sizable portions of the White Property that are subject to Conservation Authorities Act regulation³⁰. There is no indication in the plaintiff’s evidence that the plaintiff consulted with a professional engineer or with the Conservation Authority about such a project, much less that Conservation Authority permits would be available for such a land-filling undertaking. It is to be recalled that the plaintiff was convicted on July 28, 2009, under the Conservation Authorities Act for land-filling he undertook on June 14, 2008.
Before leaving the matter of placing fill on the White Property to alter its topography so that it slopes from north to south, it is important to note that this subject was raised for the first time in the affidavit of the plaintiff, sworn March 16, 2026 (Exhibit 7). That affidavit was intended to be a reply to the material filed by the municipal defendants in response to the plaintiff’s damages brief (Exhibit 1) and, incidentally, to be responsive to the questions posed by the presiding Drainage Referee in his letter of March 3, 2026 (Exhibit 6). The evidence about the land-filling head of damages is neither. As indicated above, it is being dismissed as being without merit, but it would otherwise have been disqualified as procedurally out of time for the reasons set out in paragraph 181 below.
In addition, in support of his claim for damages, the plaintiff submitted a $1,692,7400.00 estimate for the cost of replacing all of the buildings on the White Property. Blaine Hawkins testified in support of the estimate. Wise Cracks is a Canadian franchise operation specializing in basement waterproofing, foundation crack repair and sump pump installations. Mr. Hawkins is the operations manager of the Wise Cracks franchisee in the Niagara region with an office in Niagara Falls. The franchisee is a corporation owned by Mr. Hawkins’ wife. It is the Niagara Falls franchise that issued the estimate, which Mr. Hawkins authored. Mr. Hawkins is not an engineer. He has been in the construction business since 1977. He is licensed as a master electrician. He worked for multi-nationals overseas for 20 years or so before retiring and returning to Canada about 11 years ago.
Mr. Hawkins attended the White Property on February 23, 2024, after which he issued an estimate for exterior waterproofing of the house’s perimeter and installing a new sump pump. His evidence was that he had not been on the White Property before this visit, and he had not met the plaintiff previously. He was there at the invitation of the plaintiff. The February 23, 2024 estimate will be discussed in paragraph 188 below.
Mr. Hawkins attended again on June 4, 2025, before issuing an estimate on June 4, 2025, for the replacement of all the buildings on the White Property. The June 4, 2025 estimate will be discussed in paragraphs 182 to 187 below.
Mr. Hawkins attended again the week before the hearing to refresh his recollection of the situation and to update his observations if there were any changes.
It is useful to recall here that, to be eligible for recovery as damages under section 79 of the Act, the claim needs to relate to additional physical injury or harm to property suffered or occurring after September 24, 2013 and before January 25, 2021. Mr. Hawkins has no knowledge of the physical condition of the White Property or any of the buildings on the White Property prior to February 23, 2024. He has no knowledge of conditions before September 24, 2013; he has no knowledge of what, if any, deterioration may have occurred between then and January 25, 2021; and he has no knowledge of how the conditions he observed on February 23, 2024, compared to prior conditions.
Prior to addressing Wise Cracks' June 4, 2025, estimate to replace all the buildings on the White Property, the buildings on the White Property should be described. But before doing so, I will address the objections of counsel for the municipalities. Despite concerns that two days for the damages hearing would be insufficient, given the six witnesses the plaintiff would call, two days were reserved at the insistence of counsel for the municipalities. Months later, the municipalities advised that three or four additional witnesses would be called. To accommodate, the hearing hours were extended, an extra day was added, and, to abbreviate the time required for the plaintiff's evidence, I sent a letter dated March 3, 2026 to counsel for the plaintiff with some questions I would be asking the plaintiff at the damages hearing if the non-controversial information was not provided in advance of the damages hearing. A copy of that letter is Exhibit 6. Counsel for Niagara Falls objected to the letter. The plaintiff provided the requested responses as part of his reply affidavit file on March 16, 2026. That affidavit is Exhibit 7.
In the face of the objections, counsel for both municipalities were asked to provide jurisprudence prohibiting a presiding hearing officer from questioning witnesses who appear before him. They were also asked to assist in identifying jurisprudence that limits the scope or nature of such questioning.
Counsel for Niagara Falls submitted that the request for case law was tantamount to unfairly shifting the onus to the defendants and reiterated that the letter of March 3, 2026 and the responses in the March 16, 2026 affidavit amounted to the introduction of new and further evidence in breach of the Procedural Order issued on December 22, 2025 Order is now reported as: White v Niagara Falls (City), 2025 ONDR 13. To the extent that there was anything substantively new in the March 16, 2026 affidavit, reference is made to paragraph 181 below, but the Niagara Falls’ submission is that any questions posed by the trier of fact at the hearing should be limited to the evidentiary record put before the court by the parties, as a matter of procedural fairness.
With respect, as the presiding Drainage Referee, I am permitted to question witnesses who appear before me. Normally, that happens after the examination-in-chief and cross-examination by the parties opposite in interest, so that the examinations are not interrupted. The presiding Drainage Referee’s questions should be aimed at clarifying, focusing, completing, or fairly testing the evidence. They should not advance one side’s case, rehabilitate a party’s witness, or become an adversarial cross-examination that could create a reasonable apprehension of bias. After questions from the presiding Drainage Referee, the parties should be given the opportunity to ask questions arising from the answers to the Referee’s questions. My letter of March 3, 2026, was consistent with those philosophies, as was my conduct of the damages hearing.
The thrust of the defendants’ concern lies less with the questions posed by the presiding Referee and more with elements of the plaintiff’s reply affidavit, which introduce for the first time entirely new information and damages theories for which the defendant municipalities have had no opportunity to prepare or any opportunity for response. That is a legitimate concern. As counsel for Fort Erie put it in his submissions, the plaintiff has exploited the Court's inquiry to engage in impermissible case-splitting, trial by ambush, and the introduction of entirely new damages theories on the eve of trial. Counsel for Fort Erie provided jurisprudence in support of that submission. While agreeing with the principle, the defendants overreach when they demand that useful responses intended to expedite the hearing process be expunged from the record. A rudimentary understanding of the buildings and structures on the White Property and when they were constructed is useful clarification, given the damages claim for the cost of replacing them all. Much earlier, the Court requested, if available, a survey to obtain more precise boundary measurements; it was provided and then included as an Exhibit to the March 16, 2026, reply affidavit. Counsel for Niagara Falls asked me for title documents that were not in his file, which I provided; those documents were also included as an Exhibit. Information about the Crown Patent, the land-use planning process for creating the severed 2-acre lot and historical maps of Willoughby Township is non-contentious background with little or no bearing on the plaintiff’s damages claims. What is legitimately of concern is the introduction of a new head of damages in the amount of $6,934,200.00 for the land-filling project referred to in paragraphs 168 and 169 above; the raising of that entirely new head of damages in reply is unacceptably out of time procedurally and has been given no evidentiary weight. Similarly, the new information and the approach to crop loss quantification first raised by the plaintiff in the reply affidavit, as described in paragraph 154 above, are inappropriate, procedurally out of time and given no evidentiary weight. Again, in paragraph 29 of the reply affidavit sworn March 16, 2026, the plaintiff has augmented the list of sold farm equipment which were not previously mentioned in the July 31, 2025 damages brief and, as indicated in paragraph 161 above, they are disqualified as being procedurally out of time and have been given no evidentiary weight.
I now return to a description of the buildings on the White Property. As appears from the footnotes, much of the information about the buildings is derived from responses to my March 3, 2026 letter (Exhibit 6) provided in the plaintiff’s March 16, 2026 Affidavit (Exhibit 7).

(a) There is the residence. It was located on the White Property when it was acquired in 1980. The plaintiff estimates that parts of the house were built in the early 1900s and that in 1952, a new house was constructed on the old foundation. There have been no further renovations or repairs to the house’s foundation since³¹. The house is described in paragraph 17 above. It has an unfinished basement. There is a sump pump in the basement. The house has electricity; it is heated by propane; it has a septic tank; water is supplied by a cistern. The plaintiff’s evidence is that potable drinking water is supplied from the cistern and that the water is either collected rainwater or purchased by the truckload³². The cistern was replaced in 2012³³. There is no water well for the house³⁴.

(b) There is a detached garage, which is also described in paragraph 17 above. It was constructed on the White Property in about 1985. It occupies about 45 square metres (480 square feet). The floor of the garage is a concrete slab on grade. It is a single-car garage with inside working areas on either side³⁵.

(c) Behind the garage is a building designed to accommodate livestock; this will be referred to as the “livestock barn”. The livestock barn was constructed in 1981. It has a footprint of 315.9 square metres (3,400 square feet). It has water supplied by a well located outside, adjacent to the barn. The well is about 70 feet deep, so likely close to the bedrock interface³⁶.

(d) The fourth building is a little to the north and west of the feedlot barn. This building is used for tool storage and as a workshop; it will be referred to as the “workshop”. Its footprint is about 112 square meters (1,200 square feet)³⁷.

(e) There is also a galvanized grain bin located a little east of the workshop building and a little north of the livestock barn. It was installed in 1982. It has a 7.3-metre (24-foot) diameter, is 4.5 metres (15 feet) high, and has an estimated capacity of 105 cubic metres (3,000 bushels)³⁸.

The Wise Cracks $1,692,7400.00 estimate includes replacing all of these buildings and constructing an additional building with a footprint of about 278.7 square metres (3,000 square feet) to accommodate “high equipment,” such as a combine.
The plaintiff’s rationale for the need to replace all the buildings is that the preliminary proposal for the drainage works in response to the White petition referred to in paragraph 103 above, is that under that proposal, the White Property must drain to the south instead of the north which leaves all of the buildings two feet low, so the building need to be replaced³⁹. As explained in paragraph 169 above, an examination of the preliminary proposal does not support the rationale's premise. The preliminary proposal does not envisage altering the elevations of any part of the White Property; surface water will continue to flow to the north, and the residence and three outbuildings will remain unaffected.
The plaintiff has provided hundreds of photographs of inundations of the White Property. None of them shows flooding of the house, the garage, the feedlot barn, the workshop or the storage bin. There are no photographs of these buildings being marooned by surrounding floodwater. There are no pictures of the driveway into the White Property being flooded, much less impassable. There are no photographs of basement flooding in the house, nor any evidence of it.
It may well be that these buildings have endured reasonable wear and tear over the decades, but the evidence does not, on a balance of probabilities, support any causal connection between their current state of repair and flooding of the White Property after September 24, 2013 and before January 25, 2021.
An additional new building, as proposed by Wise Cracks, is an improvement which is not recoverable under section 79 of the Act.
The plaintiff has also submitted for recovery, as damages, a $200,000.00 Wise Cracks estimate for exterior waterproofing of the house and the installation of a sump pit and pump. The evidence indicates that there is rudimentary tar sealant on the exterior of the basement walls of the house, and that the existing sump pump has been struggling to keep the unfinished basement completely dry. The original house was built in the early 1900s, and in 1952, a new house was constructed on the old foundation. The exterior tar sealant is consistent with that vintage, so the proposed Wise Cracks’ exterior waterproofing represents a betterment of the house, its basement and sump pump, for which, on a balance of probabilities, there is no causal connection between flooding of the White Property after September 24, 2013 and before January 25, 2021.
In the same vein, the plaintiff has submitted, for recovery as damages, a $113,690.00 quote from RCC Waterproofing Inc. for excavating around the house, installing waterproofing to the exterior of the house and installing a new sump pump. Jeffery Martin of RCC Waterproofing Inc. was scheduled to testify but did not. As with the Wise Cracks proposal, the proposed exterior waterproofing represents a betterment of the house, its basement and sump pump, for which, on a balance of probabilities, there is no causal connection between flooding of the White Property after September 24, 2013 and before January 25, 2021.
The plaintiff has submitted a $9,500.00 quote for the drilling of a new water well and pump as damages. This is a well for the livestock barn. Mr. Ted van der Zalm was scheduled to give evidence about this quote, but he did not appear to do so. The plaintiff claims the well was contaminated by water from the Drain. The surface water on the White Property flows from south to north. The well is located in front of the barn, thus a considerable distance south of the north boundary of the White Property. It is difficult to make the causal connection between water in or from the Drain and surface water around the barn on the White Property. If the well had been sealed correctly, there would have been no surface-water infiltration. Had Mr. van der Zalm provided evidence, he could have presented his observations on the state of repair of the existing water well. The water quality issue could well have been resolved by treating the raw well water. If Mr. van der Zalm had given evidence, he could have provided information about conventional water treatment protocols for raw well water in the area. On a balance of probabilities, there is no causal connection between flooding of the White Property after September 24, 2013 and before January 25, 2021; and the proposed new well represents betterment of the livestock barn.
None of these heads of damage qualifies for recovery under section 79 of the Act. There is either no evidence from which to quantify damages, or there is no causal connection, in fact or in law, between them and the flooding of the White Property after September 24, 2013 and before January 25, 2021.

Future Assessed Costs If the White Petition of June 2023 Proceeds

This is the fourth item on the issues listed in paragraph 135 above. It is derived from

(a) clause (d) of paragraph 62 of the Order issued by Referee Waters on February 2, 2024, now reported as White v Niagara Falls (City), 2024 ONDR 2,

(b) clause (d) of paragraph 6 of his Order issued May 6, 2024, now reported as White v Niagara Falls (City), 2024 ONDR 11;

(c) paragraph 8 of his Order issued May 16, 2025, now reported as White v Niagara Falls (City), 2025 ONDR 4, in which he quotes clause (d) of paragraph 6 of his Order issued May 6, 2024; and

(d) clause 17(d) of the Order issued by Acting Referee Wright on December 22, 2025, now reported as: White v Niagara Falls (City), 2025 ONDR 13.

The notion is that, if the St. John's Marsh Drain had been maintained in good repair, it would not have been necessary for the plaintiff to petition for alternative drainage solutions such as are being pursued as a result of the petition he filed with Niagara Falls in June of 2023.
As described in paragraph 104 above, the preliminary proposal for the drainage works in response to the White petition involves open ditch drainage works flowing to the east 257 metres (843.18 feet) from the White Property, with its outlet into the St. John's Marsh Drain in Lot 10, First Cross Concession in the geographic Township of Willoughby in the vicinity of or on the unopened road allowance for Willow Road⁴⁰. The preliminary proposal contemplates both a drainage outlet for the White Property to the east and a diversion of flows from south of Willow Road to the east.
There are also preliminary assessment schedules for that proposal⁴¹. The estimated total cost of construction of this proposal is $293,542.00. Of that total, the White Property would be assessed $39,651.00, net after 1/3 provincial grant and allowances for the construction of the project. And thereafter, the White Property would be assessed for the maintenance and repair of the proposed White Branch Drain.
The difficulty with the notion that this represents a head of damages is that, whether or not the St. John's Marsh Drain had been maintained in good repair between September 24, 2013 and before January 25, 2021, the White Property had and has no de facto or legal outlet access to the Drain. Either an open ditch Branch 335.28 metres (1,100 feet) in length, flowing north from the White Property to connect to the Drain, or an open ditch Branch flowing 275 metres (902.23 feet) from the White Property to connect to the Drain to the east, would involve cutting through brush and tree growth to get to the Drain. Either would require a petition and an engineer’s report, and the construction and future maintenance of significant drainage works, a portion of the cost of which would have been assessed to the White Property. Whether or not the St. John's Marsh Drain had been maintained in good repair between September 24, 2013 and before January 25, 2021, the White Property is going to be assessed for a drainage branch connection to give the White Property actual and legal outlet access to the Drain, whether to the north or to the east. It may be that the shorter branch to the east will be more expensive than a branch for the north, but not likely, and there is no evidence one way or the other. This head of damages does not qualify for recovery as damages under section 79 of the Act because the cost associated with a branch drain connection of the White Property to the Drain would have been incurred whether or not the Drain had been maintained in good repair.

Reiteration of Result

In any event, as stated in paragraph 133 above, the non-repair of the St. John's Marsh Drain is not the proximate cause of the flooding of the White Property. Therefore, it is not the cause of any inundation-related physical injury or harm to property for which damages are claimed. The plaintiff has not satisfied the “but for” causation test, on a balance of probabilities. The action is therefore dismissed.

Costs

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

Dated at London, this 13th day of April 2026.

____________________________________ Andrew C. Wright Acting Drainage Referee

Extract from the Plan from 2019 Revised Spriet Engineer’s Report

Extract of Plan for Preliminary Proposal for White Branch Drains

Appendix

Exhibit No.

1948-10-11 – Township of Willoughby By-law No. A- 115 adopting the Report for the repair and improvement of the St. John’s Marsh Drain issued and signed by C.A. Grassie, Engineer, with assessment schedule and plan for the St. John’s Marsh Drain in the Townships of Bertie and Willoughby.

1952-07-02 – Report on the Improvement of Part of Black Creek in the Townships of Bertie and Willoughby, signed by R. Blake Erwin, Township Engineer, including specifications and assessment schedule, adopted by Township of Bertie By-law No. 1578. The Black Creek joins the St. John’s Marsh Drain at the easterly limit of Lot 11, Concession 11, N.R., Township of Bertie. The improvements were to provide an improved outlet for the St. John’s Marsh Drain.

1980-11-04 – Deed registered as No. 363015 of White Property to John and Catherine White and David John White as joint tenants. Part of lot 11, First Cross Concession in the geographic Township of Willoughby – describes four boundaries comprising 23.68 acres more less.

1983-07-22 – David White transferred his interest in the 23.68 acres (9.6 hectares) to his parents as joint tenants by land transfer registered as instrument No. RO413145

2012-05-02 – K. Smart & Associated Limited (John Kuntze) memorandum report to Fort Erie about issues with the St. John’s Marsh Drain

2012-08-10 – Notice of Appeal to the Referee addressed to Niagara Falls by lawyer Terrance Green on behalf of David White. A separate “Notice of Appeal to Referee” was faxed to each of Niagara Falls, Port Colborne, Fort Erie and Niagara Region by Terrance James Green, Barrister and Solicitor for David White.

2013-09-24 – Following the death of George White on February 3, 2010, Catherine White, as the surviving joint tenant, transferred the 22-acre (8.9-hectare), net after the transfer of the 2 acre (0.8 hectare) retirement lot, White Property to herself and David White, as joint tenants, by a transfer registered on September 24, 2013, as instrument SN386485.

2014-07-31 –Engineer’s Report to Fort Erie for the Black Creek Drainage Works 2014, prepared under s 76 of the Drainage Act, issued by K. Smart and Associates Limited, dated July 31, 2014 and filed with the Fort Erie Clerk on February 13, 2015 and refiled on March 31, 2015. Provisionally adopted on April 27, 2015, by Fort Erie By-law No. 67-2015

2016-03-17 – Motion Record from Terrance Green on behalf of David White seeking maintenance and repair of the St. John’s Marsh Drain with supporting affidavit of David White sworn February 17, 2016, including 8 Exhibits “A” through “H”

2016-04-08 – Report on the St. John Marsh Drain 2016 issued to Fort Erie on April 8, 2016 by K. Smart Associates Limited and signed by Neal Morris, P.Eng. with respect to the St. John Marsh Drain 2016, including plan and profile (K. Smart File No. 13-249) The report was provisionally adopted by two readings of By-law 115-2016 on 2016-10-24. Court of Revision met on November 23, 2016 and again on 2017-02-22 and made minor assessment changes. A revised report dated 2016-11-23 was issued by K. Smart Associates Limited (Neal Morris) to reflect those changes. The report as revised was finally approved by final reading of By-law 115-2016 on 2017-04-24. Certificate of Completion dated April 27, 2020 issued with respect to the St. John Marsh Drain as outlined in the 2016 Revised K. Smart Engineer’s Report certifying practical completion on January 10, 2020.

2017-03-31 – Motion Record seeking to remove Port Colborne and Niagara Region from the action with supporting affidavit of the Drainage Superintendent of Port Colborne, Henri Bennemeer, sworn 2017-03-30 with 12 Exhibits “A” through “L”, and the affidavit of the Acting Director of Transportation Services for the Regional Municipality of Niagara, Shawn McCauley, sworn 2017-03-30 with 9 Exhibits “A” through “I”

2017-07-21 – Affidavit of Shawn McCauley, the Acting Director of Transportation Services for the Regional Municipality of Niagara, sworn July 21, 2017 in support of the motion to remove Port Colborne and Niagara Region from the action with one Exhibit being the 2016 K. Smart Engineer’s Report

2017-10-17 – Affidavit of David Maiden the Drainage Superintendent of Fort Erie sworn October 12, 2017 in support of the motion to remove Port Colborne and Niagara Region from the action with two Exhibits “A” and “B”

2017-10-19 – Order issued by Referee Waters on October 19, 2017 removing Port Colborne and Niagara Region as Respondents/defendants in this action by White now appearing as Schedule “A” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2.

2017-10-19 – Second Procedural Order of Referee Waters establishing a schedule for the (1) exchange of pleadings and (2) directing Niagara Falls to copy the Referee with the section 78 engineer’s report which had been commissioned in relation to the St. John’s Marsh Drain (3) directing Fort Erie to keep parties apprised of activities in connection with the engineer’s report dated April 8, 2016 (K. Smart and Associates), now appearing as Schedule “B” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2

2017-11-01 – Report on the St. John Marsh Drain 2017 issued to Niagara Falls on November 1, 2019, by Spriet Associate Engineers & Architects and signed by J.R. Spriet, P.Eng., regarding the St. John Marsh Drain 2017, including plan and profile (Spriet Associated Job No. 213172). On November 28, 2017 Niagara Falls provisionally adopted the 2017 Spriet Engineer’s Report by by-law 2017-130.

2017-11-21 – Catherine White and David White transfer the White Property to David White alone by land transfer registered as instrument SN534482 on November 21, 2017.

2017-11-27 – Statement of Claim provided by Melissa Braodhurst, a paralegal carrying on business as Rideau Legal Services (located in Cardinal in eastern Ontario). The statement of claim is undated and unissued, but was received by Referee Waters on November 27, 2017.

2017-12-22 – Statement of Defence from Fort Erie

2017-12-22 – Statement of Defence from Niagara Falls

2019-02-07 –2019 Tribunal Decision issued February 7, 2019, with respect to the 2017 Spriet Engineer’s Report on the St. John Marsh Drain 2017, issued to Niagara Falls on November 1, 2017, by Spriet Associate Engineers & Architects, in which the Drainage Tribunal amended the Report by removing the recommended Newbury Weir from the termination point of the drain at station 0+950. This was an appeal was heard on September 18, 2018 under section 48 of the Act (the assessment appeal under section 54 of the Act was withdrawn) - St. John's Marsh Drain 2017 (RE), 2019 ONAFRAAT 2

2019-10-30 - A Revised Report, the 2019 Revised Spriet Engineer’s Report. It was originally issued November 1, 2017, by Spriet Associates and signed by J.M. Spriet, P.Eng. and revised October 30, 2019 to reflect the 2019 Tribunal Decision of February 7, 2019. The 2019 Revised Spriet Engineer’s Report was presented to Niagara Falls Council on December 10, 2019, at which time final reading was given to By-law No. 2017-130. It contains the same recommendation: That the existing 1948 St. Johns Marsh Drain in the N.P.C.A lands (Roll No. 4-167) upstream of Sta 0+950 be officially abandoned from municipal drain status pursuant to Section 19 of the Drainage Act. It does not include the Newbury Weir at the upper end of the drain (Sta 0+950), in accordance with the 2019 Tribunal Decision. On January 25, 2021 the Certificate of Completion of the St. John Marsh Drain for Niagara Falls Spriet Associates Job No. 213172 was issued by Spriet Associates.

2020-01-06 – Letter from David White to Niagara Falls appealing to the Referee under section 106(1)(a) and (b) and 106(2) of the Drainage Act from the decision of the Tribunal issued February 7, 2019.

2020-04-24 – Order issued by Referee Waters on April 24, 2020 which represents the third Order arising from teleconference hearings on May 20, 2020 which continued on June 17, 2020. Order refers to the resumption of a hearing originally held on March 25, 2020.

2020-05-29 – Notice of Motion by David White’s then counsel appealing the 2019 Tribunal Decision.

2020-05-29 – Order issued by Referee Waters on May 29, 2020, directing counsel for White to e-mail to respondents/defendants the Notice of Appeal required by paragraph 6 of the April 24, 2006 Order and adjourned to June 17, 2020.

2020-07-09 – Order issued by Referee Waters on July 9, 2020. It reflects teleconferences on March 25, 2020, April 23, 2020, May 29, 2020 and June 17, 2020. The order is that the damages claim against Fort Erie and Niagara Falls are to continue as one action as set out in the Referee’s Order of October 19, 2017 and that the work set out in the November 1, 2017 Spriet Report is to proceed “except the Abandonment of the Drain upstream of Station 0+950 and the construction of the Newbury Weir, both of which are stayed until the balance of the works on the St. John’s Marsh Drain 2017 are completed and evaluated.” No reasons were given.

2021-03-12 – Order of Referee Waters issued March 12, 2021. Refers to Order of July 9, 2020. Refers to work on St. John’s Marsch Drain in Niagara Falls (Spriet Report) not having been completed and work on the Drain in Fort Erie (K. Smart Report) being certified complete on April 27, 2020 at the time of the July 9, 2020 Order. Refers to work on St. John’s Marsch Drain in Niagara Falls (Spriet Report) certified complete on January 25, 2021. This Order sets out a revised schedule for pleadings, the exchange of affidavits and documents, including expert reports and discovery examinations, and expert examinations. Liability and damages to be determined at trial.

2022-07-21 – Notice of Motion by David White by his then counsel, seeking leave to amend the statement of claim, supported by the affidavit of Ian Nielsen sworn July 21, 2022 attached to which is the draft amended Statement of Claim. This motion was allowed by Order of Referee Waters issued December 22, 2022 which is an attachment to the Order issued February 2, 2024 now appearing as White v Niagara Falls (City), 2024 ONDR 2.

2022-11-03 – Order of Referee Waters issued November 3, 2022. Refers to the 2019 Tribunal Decision (Re 2019 Spriet Report). Refers to Referee Order issued April 24, 2020, paragraph 6, authorizing White – then unrepresented, to file an amended statement of claim by January 6, 2020. Reference to Referee Order October 19, 2017 for amended statement of claim. Reference to Notice of Appeal dated May 29, 2020. Municipalities given until May 29, 2020 to make submissions about matters raised by the restated Notice of Appeal. Adjourned to December 12, 2022 to deal with procedural matters.

2022-12-22- Procedural Order of Referee Waters allowing amended statement of claim and giving defendants time to file amended statements of defence, confirming that the amended statement of claim replaces the originally filed Notice of Appeal/Application delivered by the plaintiff requiring the municipalities’ affidavits of production by February 28, 2023 and ordering that examinations be conducted before April 28, 2023. Attached to this Order is the undated amended statement of claim. This Order appears as Schedule “C” to the Order issued February 2, 2024 now reported as White v Niagara Falls (City), 2024 ONDR 2.

2023-05-25- Two volumes of hard copy documents with 63 Tabs associated with an unsworn Supplementary Affidavit of Documents of David White, dated in April 2023 and e-mail traffic from then counsel for the plaintiff dated May 25, 2013.

2023-06-06 – Petition by David White to Niagara Falls for drainage of the White Property. One handwritten, the second typed. Signed by David White only.

2023-09-21 – Order of Referee Waters issued on September 21, 2023. It refers to the Order of July 9, 2020. It establishes a schedule for the plaintiff to provide an affidavit of documents by September 26, 2023; defendant municipalities to provide summary judgement dismissal motion material by October 16, 2023; plaintiff to provide responding material to the municipalities’ motion by October 23, 2023; cross-examinations to be completed before November 3, 2023; hearing of municipalities’ summary judgement dismissal motion on December 5, 2023; with liability and damages to be determined at trial.

2023-10-16 – Niagara Falls Motion Record for summary judgement dismissing the action with supporting Affidavit of Nick Golia, sworn October 16, 2023 with 7 Exhibits “A” to “G”

2023-10-23 – Supplemental Affidavit of Documents of David White, sworn October 23, 2023 with 63 Tabs; these are the same documents as are in the two hard copy volumes from May 25, 2023.

2023-10-23 – Affidavit of David White, sworn October 23, 2023, in response to the municipalities’ motion to dismiss with no Exhibits attached

2023-11-02 – White Supplementary Affidavit of David White, sworn November 2, 2023 with 15 Exhibits “A” to “O”

2023-11-03 – Transcript of cross-examination of Troy Davidson, Fort Erie Drainage Superintendent

2023-11-03 – Transcript of cross-examination of Nick Golia, Niagara Falls Senior Project Manager - Development

2023-11-03 – Transcript of cross-examination of David White, the plaintiff

2023-11-14 – White Second Supplementary Affidavit of David Whitee sworn November 14, 2023 with 3 Exhibits “A” to “C”

2023-11-15 – Fort Erie Motion Record including Notice of Motion for summary judgement dismissing the action and supporting Affidavit of Troy Davidson, Fort Erie Drainage Superintendent, sworn October 16, 2023 with 19 Exhibits “A” to “N”.

2023-11-17 – Motion Record of David White with supporting affidavit of David White, sworn November 17, 2023 with 7 Exhibits “A” through “G”. (Exhibit “F” is the Second Supplementary Affidavit of David White sworn November 14, 2023 with 3 Exhibits “A” to “C”) The motion seeks to file a new affidavit in response to the municipalities’ motions to dismiss and set a date for cross-examination, a new date for the exchange of facta, and an adjournment of the hearing date of December 5, 2023.

2024-02-02 –Order issued by Referee Waters on February 2, 2024 dismissing the municipalities’ motions for summary dismissal of the action, now reported as White v Niagara Falls (City), 2024 ONDR 2

2024-02-29 – Notice of Appeal to the Divisional Court by Niagara Falls from the Referee Order issued on February 2, 2024.

2024-02-29 - Notice of Appeal to the Divisional Court by Fort Erie from the Referee Order issued February 2, 2024.

2025-05-06 –Order issued by Referee Waters on May 6, 2024, formalizing the decision issued dismissal order of February 2, 2024 for the appeal to the Divisional Court of that Order. This Order is now reported as: White v Niagara Falls (City), 2024 ONDR 11.

2025-05-16 – Procedural Order issued by Referee Waters on May 16, 2025, now reported as: White v Niagara Falls (City), 2025 ONDR 4 This Order was issued after the Divisional Court stayed the appeals pending completion of the dismissed summary judgment motions as to the quantum of damages and apportionment between Niagara Falls and Fort Erie.

No. 1

2025-07-31 – Affidavit of Documents (Supplemental) sworn by David White on July 31, 2025 (second and final version) with 30 Tabs, including at Tab 23 and affidavit of David White sworn February 19, 2025 with 12 Exhibits “A” through “L” and at Tab 28 the unsigned July 9, 2025, Strategic Investment Concepts Report entitled “Loss of Income and Projected Investment Growth Period: Year 2008 to June 30, 2025” prepared by Mark L. Price, Financial Advisor.

2025-09-30 – Transcript of cross-examination of David White, the plaintiff

2025-12-22 – Order issued by Acting Referee Wright on December 22, 2025 dealing with a number of historical aspects of this action and establishing a schedule for the damages hearing. This Order is This Order is now reported as: White v Niagara Falls (City), 2025 ONDR 13.

2026-01-27 – Fort Erie Notice of Motion to extend scheduled delivery time specified in the December 22, 2025 Order issued by Acting Referee Wright supported by the affidavit of Wahib Kassab, sworn January 27, 2026 including one Exhibit “A”.

2026-01-30 – Niagara Falls Notice of Motion to extend scheduled delivery time specified in the December 22, 2025 Order issued by Acting Referee Wright supported by the affidavit of Megan Stevens, sworn January 30, 2026, including two Exhibits “A” and “B”.

2026-02-10 – Order issued by Acting Referee Wright on February 10, 2026 amending some scheduling elements of the December 22, 2025 Order for the damages hearing.

No. 2

2026-02-26 – Supplementary Affidavit of David Maiden sworn February 26, 2026 with one Exhibit “A” being the Affidavit sworn by him on October 12, 2017 in support of the motion to remove Port Colborne and Niagara Region from the action with two Exhibits “A” and “B”

No. 3

2026-02-26 – Affidavit of Jim Tracey, CPA, CA, CBV, MACC sworn February 26, 2026 with three Exhibits. Exhibit “A” is his CV; Exhibit “B” is his Acknowledgement of Expert’s Duty; and Exhibit “C” is his Expert’s Report issued September 26, 2025 by Tracey Business Advisor Inc. and signed by Jim Tracey, CPA, CA, CBV, commenting on the July 9, 2025, Strategic Investment Concepts Report submitted with Exhibit No. 1, being the Supplemental Affidavit of Documents sworn by David White on July 31, 2025.

No. 4

2026-02-26 – Affidavit of Troy Davidson sworn February 26, 2026 with three Exhibits. Exhibit “A” is his Affidavit of Documents sworn April 24, 2023; Exhibit “B” is his affidavit sworn October 16, 2023 in support of Fort Erie’s Motion for summary judgement dismissing the action; and Exhibit “C” is the transcript of his cross-examination conducted on November 3, 2023.

No. 5

2026-02-26 – Affidavit of Nick Golia sworn February 26, 2026 with six Exhibits. Exhibit “A” is his affidavit sworn October 16, 2023 in support of Niagara Falls’s Motion for summary judgement dismissing the action; Exhibit “B” is the Niagara Falls Affidavit of Documents sworn by him on September 7, 2023; Exhibit “C” is the transcript of the examination of David White on May 25, 2023; Exhibit “D” is the transcript of his examination on May 26, 2023; Exhibit “E” is the transcript of the examination of David White on November 13, 2023; and Exhibit “F” is the transcript of the examination of David White on September 30, 2025.

No. 6

2026-03-03 – Letter from Referee Wright to counsel for the plaintiff seeking non-controversial information from the plaintiff with a view to expediting the evidence at the damages hearing.

No. 7

2026-03-16 – Affidavit of David White provided by way of Reply in response to Referee Wright’s March 3, 2026 letter with 18 Exhibits “A” through “R”.

Footnotes

Exhibit H to the affidavit of Henri Bennemeer sworn March 3, 2017 in support of a motion by the City of Port Colborne and the Regional Municipality of Niagara to be removed as defendants in the action.
A copy of this deed is Exhibit “A” to the Second Supplementary Affidavit of David White, sworn November 14, 2023
The severed lot size and dimensions are taken from the reference plan of survey deposited in the Registry Office for the Land Titles Division of Niagara South as Plan 59R-12132.
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 6, lines 18 to 23
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 10, lines 15 and 16.
The plan showing Conservation Authority Regulated Areas in Exhibit No. 1, Tab 17 on page 262 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
The water from the watercourse on the White Property crosses the north boundary of the White Property in a location shown in a number of photographs in the plaintiff’s Supplementary Affidavit of Documents, sworn October 23, 2023, under Tab 62. The following undated photographs depict the location along the boundary fence between the White Property and the Conservation Authority wetland where the water crosses: Photos C16, C17 and C18 on pages 288, 289 and 290; photo C22 on page 293; photo D13 on page 307; photos D14 and D 15 on page 308; photos F3 and F4 on pages 314 and 315. The photographs under Tab 62 that are dated were taken in 2006, 2007, 2008 or 2009.
This dimension is taken from the 1980 Deed to the plaintiff and his parents registered on November 4, 1980 as No. 363015.
The water from the watercourse on the White Property crosses the north boundary of the White Property in a location shown in a number of photographs in the plaintiff’s Supplementary Affidavit of Documents, sworn October 23, 2023, under Tab 62. The following undated photographs depict the location along the boundary fence between the White Property and the Conservation Authority wetland where the water crosses: Photos C16, C17 and C18 on pages 288, 289 and 290; photo C22 on page 293; photo D13 on page 307; photos D14 and D 15 on page 308; photos F3 and F4 on pages 314 and 315. The photographs under Tab 62 that are dated were taken in 2006, 2007, 2008 or 2009.
The tenant farmer is Steve Griffith from Rock Furrow Farms: transcript of plaintiff’s cross-examination on July 30, 2025, at page 6, line 18 to 21.
This dimension is taken from the 1980 Deed to the plaintiff and his parents registered on November 4, 1980 as No. 363015.
The dimension is taken from the reference plan of survey deposited in the Registry Office for the Land Titles Division of Niagara South as Plan 59R-12132.
What has been said in paragraphs 36 to 47 is an adaptation of the principles enunciated in paragraphs 259 to 272 of the reasons given for the June 26, 2023 decision in Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), (“Erie Shores 2023 Preliminary Issues Decision”) 2023 ONDR 5. An adaptation of those paragraphs is also found in paragraphs 42 to 54 of the reasons given in Collins v Middlesex Centre (Municipality), 2025 ONDR 2. A similar adaptation is found in paragraphs 28 to 41 of the reasons for the decision in Schall v Fort Erie (Town), 2025 ONDR 11.
See comparable language in paragraph 274 of the reasons given for the Erie Shores 2023 Preliminary Issues Decision.
See comparable language in paragraphs 29 and 30 of the reasons given for the Erie Shores 2023 Preliminary Issues Decision.
See the plan showing Conservation Authority Regulated Areas in Exhibit No. 1, Tab 17 on page 262 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
Exhibit No. 1, Tab 19, page 266 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
Exhibit I to the affidavit sworn by Troy Davidson on October 16, 2023 in support of Fort Erie’s motion to dismiss the action.
Transcript of plaintiff’s cross-examination on September 30, 2025, at page 42, lines 21 to 23.
Transcript of plaintiff’s cross-examination on September 30, 2025, at page 6, lines 19 to 23, page 8, line 24, page 9, lines 45 to 20, page 73, lines 4 to 11, page 74, lines 1 to 7.
Transcript of plaintiff’s cross-examination on September 30, 2025, at page 72, lines 24 and 25.
Paragraph 29 of the affidavit of David White, sworn March 16, 2026, marked as Exhibit 7.
Paragraphs 22 and 23 of his affidavit sworn March 16, 2026, being Exhibit No. 7.
Transcript of September 30, 2025, examination of David White: page 10, line 15 and page 11, line 7.
Paragraph 22 of the affidavit of David White, sworn March 16, 2026, marked as Exhibit 7.
Exhibit “G” to the plaintiff’s affidavit, sworn February 19, 2025, which is found at page 416 under Tab 23 of Exhibit No. 1, being the plaintiff’s damages brief.
Exhibits “H” and “I” to the plaintiff’s affidavit, sworn February 19, 2025, which are found at pages 422 and 425 under Tab 23 of Exhibit No. 1, being the plaintiff’s damages brief.
Exhibits “J” and “K” to the plaintiff’s affidavit, sworn February 19, 2025, which are found at pages 427 and 429 under Tab 23 of Exhibit No. 1, being the plaintiff’s damages brief.
Exhibit No. 1, Tab 19, page 266 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
The plan showing Conservation Authority Regulated Areas in Exhibit No. 1, Tab 17 on page 262 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 19, lines 1 to 9.
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 21, lines 3 to 6.
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 20, lines 2 to 6.
Paragraph 4 of the affidavit of David White, sworn March 16, 2026, being Exhibit 7.
Paragraph 11 of the affidavit of David White, sworn March 16, 2026, being Exhibit 7.
Paragraph 5 of the affidavit of David White, sworn March 16, 2026, being Exhibit 7.
Paragraph 10 of the affidavit of David White, sworn March 16, 2026, being Exhibit 7.
Paragraph 8 of the affidavit of David White, sworn March 16, 2026, being Exhibit 7.
Transcript of plaintiff’s cross-examination on July 30, 2025, at page 41, lines 5 to 9.
Exhibit No. 1, Tab 19, page 266 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.
Exhibit No. 1, Tab 20, page 268 to page 270 of the Affidavit of Documents sworn by the plaintiff on July 31, 2025.