REASONS FOR JUDGMENT

gilmore J.:

Overview

[1] This is the plaintiff’s (hereinafter “the Region”) motion for an interim and interlocutory mandatory order requiring the defendants to remove the berm on their property, or in the alternative, an order allowing the Region to remove the berm at the defendants’ expense.

[2] The Region seeks this order by way of either, a statutory injunction, an injunction to prevent a public nuisance or an injunction pursuant to section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] The defendants oppose the motion on the grounds that:

(a) The Region has not proven a clear breach or strong arguable case for breach of statutory duty, a public nuisance or a nuisance;

(b) A trial is needed to determine if there is a breach of statutory duty, public nuisance or nuisance; and

[4] An order was previously made giving the intervenor, the Lake Simcoe Region Conservation Authority (the “LSRCA”), leave to file a factum and make submissions on the motion.

[5] The subject property is located on the north side of Bloomington Road and municipally known as 1166 to 1360 Bloomington Road East, Aurora (the “defendants’ property”). The property is owned by Gaetano DiBlasi (“Mr. DiBlasi”). His son, Vito DiBlasi, was the former owner of the property. The defendants’ property consists of approximately 48 acres of land upon which there is a single family detached dwelling, in which Mr. DiBlasi lives. Both Bloomington Road and Leslie Street are municipal roads over which the Region has jurisdiction.

[6] The subject property runs along Bloomington Road for approximately 3,000 feet west of Leslie Street towards Bayview Avenue. Prior to August 2012 there were berms along the south side of the property in front of Bloomington Road; except for approximately 450 running west from the driveway into the commercial part of the property. Mr. DiBlasi put up a berm (the “subject berm”) along the southerly edge of the said remaining 450 feet, between the berms to the west and to the east, in the area in which there was previously no berm.

[7] The ditch between Bloomington Road and the berm is owned by the Region and is approximately six feet wide.

[8] The defendants’ property lies within the protected Oak Ridges Moraine Area and is subject to regulation under the Oak Ridges Moraine Protection Act, 2001, S.O. 2001, c. 3 (the “ORMPA”) and the Oak Ridges Moraine Conservation Plan (Ontario Regulation 140/02) (the “ORMCP”).

[9] The defendants’ property also contains a provincially significant wetland (“PSW”), which is part of the White Rose – Preston Lake Wetland Complex (the “Wetland”). The Wetland has been designated as a PSW since January 2000. PSWs are areas identified as the most valuable in the province by the Ontario Ministry of Natural Resources (the “MNR”) using the Ontario Wetland Evaluation System.

[10] The Wetland, plus an area which extends outwards a distance of one hundred and twenty metres from the boundary of the Wetland (“the setback”), is regulated by the LSRCA under Ontario Regulation 179/06 made under the Conservation Authorities Act, R.S.O. 1990, c. C.27 (the “Conservation Authorities Act”).

[11] The Region is an upper tier municipal corporation headquartered in Newmarket, Ontario, and responsible for constructing, repairing and maintaining roads within its jurisdiction, including Bloomington Road. The Region has a duty imposed on it by the Municipal Act, 2001, S.O. 2001, c. 25 (the “Municipal Act, 2001”) to maintain and repair Bloomington Road. It is a main arterial road near provincial highway 404. There are approximately 15,000 vehicles travelling both directions per day in the subject area of Bloomington Road.

[12] Mr. DiBlasi resides in a dwelling house located on the defendants’ property and was responsible for the construction of the subject berm. Mr. DiBlasi’s son was the registered owner of the defendants’ property at the time the berm was constructed. Mr. DiBlasi now owns the property.

[13] The subject berm was constructed in August 2012 and is located along the southern portion of the defendants’ property adjacent to Bloomington Road. It is approximately 3.5 metres high and 157 metres long. There is no dispute that Mr. DiBlasi built the berm.

[14] According to the Region, construction of the subject berm has caused pooling in the ditch between the north side of Bloomington Road and the southern boundary of the defendants’ property, as well as in a ditch on the south side of Bloomington Road. This is because the subject berm has cut off the flow of the intermittent watercourse over Mr. DiBlasi’s land from culvert C19 under Bloomington Road and into the Wetland.

[15] The Region has concerns with respect to standing water in the ditches weakening the pavement structure on Bloomington Road, as well as concern about flooded ditches becoming drowning hazards for motorists. Finally, the Region has public health concerns with respect to standing water being a habitat for mosquito larvae, which may carry mosquito borne diseases, such as West Nile Virus. As well, the Region has paid for water to be pumped from the north drainage ditch more than ten times since December 2012 at a cost in excess of $11,000. The Region has also documented high levels of standing water at various times in 2012 and 2013.

[16] In 2012 Mr. DiBlasi applied retroactively to the LSRCA for a permit to construct the berm. A permit was never issued to him, but the LSRCA served Vito DiBlasi with a Notice of Violation dated September 26, 2012, with respect to the unauthorized development, interference or alteration in or on a wetland setback. That prosecution is currently underway.

[17] The defendants deny that the berm prevents any intermittent watercourse from flowing from the Region’s expanded ditch onto the property, nor does it trap any water in the expanded ditch. Further, the defendants deny that there has ever been such a watercourse, and that the Region is solely responsible for the inflow, accumulation and ponding of water in its own ditches, or for failing to cause the water in the ditch to flow eastwards through the ditch toward and under Leslie Street through a culvert into the Rouge River as was always intended. The defendants deny that the berm is within the PSW or within the 120 metre setback of the PSW. Their position is that if the berm is removed, water would continue to pond in the ditch on the north side of Bloomington Road.

[18] Mr. DiBlasi maintains that culvert C19 was not operational until after July 2012 when the Region undertook work to allow water to flow through. The Region denies this, stating the work done in July 2012 was only to remove some sediment build-up, and that culvert C19 has been in place for 35 years and was replaced with a new culvert in 1976 when Bloomington Road was widened.

[19] Whether or not the defendants had the right to construct the berm on the subject property is not in issue with respect to this motion. This motion relates to whether or not the defendants should be required to remove the berm. The defendants have failed to remove the berm and failed to comply with the Region’s demands to do so.

Factual Issues

[20] There are several facts in this case that are not in dispute. There are as follows:

(a) Bloomington Road is a major arterial road under the Region’s jurisdiction;

(b) Culvert C19 runs under Bloomington Road from south to north, and is a culvert which has been in place since before the defendants owned the property;

(c) The berm was built by Mr. DiBlasi or at his behest in August 2012, and the dimensions of the berm are not in dispute;

(d) There was never any flooding in the north ditch between October 1982 and August 2012. Since construction there has been pooling of water in the north ditch, with a depth of water between two and three feet at times;

(e) On a number of occasions the Region has alleviated flooding by pumping out water from the ditch;

(f) There is a wetland on the property fed, in part, by water flowing from the north drainage ditch onto the defendants’ property; and

(g) Mr. DiBlasi is currently being prosecuted by the LSRCA with respect to the construction of the berm without a permit.

[21] The two main areas of contention, as between the parties, are the cause of the flooding in one or both of the ditches, and the course of the surface water and where it flowed prior to construction of the berm.

[22] The Region maintains that the cause of flooding is related solely to the construction of the berm. The defendants are adamant that the flooding has been caused from work that the Region did on one or both of the ditches in the summer of 2012.

[23] Region staff attended at the berm on November 12, 2012, after concerns were raised by the occupants of the property adjacent to the south drainage ditch, namely Miller Waste Systems. Following this inspection by the Region a letter was sent to Mr. DiBlasi dated December 11, 2012, demanding that he remove the berm. Mr. DiBlasi refused to remove the berm. He responded to the Region by letter dated December 12, 2012, claiming that the construction of culvert C19 caused the pooling of water, and potentially contamination to the water wells on his property. He suggested that the Region construct a culvert on the south side in order to direct the contaminated water away from his property.

Issue One – The Cause of Flooding

The Position of the Region

[24] In support of its contention that the berm is the sole cause of the flooding in the relevant ditches, the Region relies, in part, on photographic evidence provided by the Mr. DiBlasi from before the construction of the berm and photographs taken after the construction of the berm. The photos from before and after make it clear that before the berm was constructed the land sloped down from Bloomington Road and water followed the slope. After the construction of the berm the water was prevented from following the slope of the land, and it flowed back through the culvert causing flooding in both the north and south ditch.

[25] In June 2012 the Region did limited work on the south ditch to remove sediment build-up. This involved scraping out the ditch to the depth of the culvert’s bottom lip. The culvert was functional and not fully occluded before this work took place.[^1] The Region denies that it did any work on the north drainage ditch in July 2012 as alleged by the defendants. Further, the defendants produced photographs of work alleged to have been done on the north ditch by the Region. However, on cross-examination Mr. DiBlasi conceded the photographs could have been of the work on the south ditch. Therefore, the Region takes the position there is no evidence of any work done by the Region on the north ditch. It was never altered or expanded by them.

[26] There is no evidence that that the flooding started after the ditch work, but only after the berm was constructed in August 2012. The Region only discovered the flooding problem as a result of a complaint made in November 2012. The defendant produced a number of photographs, but none that showed flooding between the time the ditch work was done in June and the berm construction in August 2012.

[27] The Region points to a handwritten letter from Mr. DiBlasi dated December 12, 2012, contained in the Region’s motion record at page 157. In the letter, Mr. DiBlasi does not deny that the berm is causing flooding. He justifies its construction and tells the Region how the flooding can be rectified without taking down the berm. Mr. DiBlasi was inconsistent with respect to his explanations for the reason why he constructed the berm. His December 12, 2012, letter indicated he was trying to keep water off the property, but in cross-examination he said he was simply finishing off the berms that were already on the perimeter of his property that had been constructed by the Region.

[28] The Region produced an expert report authored by Mr. Mark Hagesteijn, a senior associate with the engineer firm of R.V. Anderson Associates Limited, and a professional engineer specializing in the area of storm water management since 1983. He was retained by the Region to prepare a report analysing the impact of the subject berm on the existing and proposed storm drainage and in response to the report of the defendants’ expert dated October 31, 2013.

[29] In his opinion, prior to the construction of the subject berm, culvert C19 drained overland via an intermittent watercourse to a wetland 100 metre north of Bloomington Road.[^2] His report at page 7 indicated that pond depths in the ditch could be up to 1.88 metres, which is considered a safety hazard without having a guide rail between the pond and the edge of the road. At page 6 of the report, Mr. Hagesteijn opines that ponding will reduce the water infiltration rate. This means that the water level of the ponding is high enough that it could damage the pavement structure of Bloomington Road in this area.

[30] The Region also provided the expert report of Mr. Cameran Mirza dated April 29, 2013. Mr. Mirza is a professional engineer and the principal of Pavement Engineering with the engineering firm of Coffey Geotechnics Ltd. He has specialized in the area of pavement engineering for 40 years. His opinion is that standing water in the ditches will lower the supporting strength of the sub-base soil and weaken the pavement structure. This will cause the onset of pavement break-up which can take the form of potholes, cracking or “alligatoring.”[^3]

[31] The Region also notes that the LSRCA agrees that flooding is caused by the berm as per Exhibit F to the affidavit of Mr. Alibhai[^4], in which Beverly Booth, manager of planning regulations and enforcement for the LSRCA in Newmarket, indicates that “[t]he fill which has been placed along the Di Blasi property boundary is currently acting as a berm and preventing waters which would normally drain into the wetland from reaching the wetland ... the blockage of normal drainage through the Di Blasi property will have an adverse impact on the wetland.”

[32] As Mr. DiBlasi claims the water flowing from the Miller Paving lands is contaminated, the Region retained SPL Consultants to sample the quality of the surface water in the relevant ditches in January and May 2013. Reports dated February 13, 2013, and May 15, 2013, prepared by Gordon Jarvis, Project Manager/Senior Environmental Officer at SPL, indicate that the parameters in the surface water samples can be attributed to naturally occurring soil conditions in Ontario and pose minimal impacts to surface waters at the concentrations found.[^5]

[33] The Region is critical of the expert’s report produced by the defendants. That report was prepared by Derek J. Coleman, Ph.D., an environmental planner and ecologist. Dr. Coleman has over 40 years experience in environmental, ecological and rural planning including water resource projects, waste management plans and land development. The Region does not dispute Dr. Coleman’s experience or expertise, but submits it is not the right type of expertise for these issues, as a planner cannot opine on issues related to storm water management. Scientific methodology is needed, not just walking the site to see where water may have gone. The Region submits that Mr. Coleman would not be qualified as an expert at trial and that his report is simply a repackaging of the defendants’ evidence.

[34] Dr. Coleman is clear that it is not the berm which has caused ponding in the north ditch but it is the Region’s action in opening culvert C19 and excavating the hole the water now fills. The Region denies that it did any excavating in the north ditch and further, that culvert C19 was “opened.”

[35] In summary, the position of the Region on the issue of the effect of the berm is that Mr. DiBlasi has illegally constructed a berm on his property in order to dry out the wetland and increase the marketability of the property. Despite demands by the Region to remove the berm, Mr. DiBlasi refuses to do so claiming that the ponding in the ditches is not caused by the berm but by work done on the ditches by the Region in the summer of 2012. The Region denies that any work was done on the north ditch and the work on the south ditch did not cause ponding. The berm must be removed in order to ensure that the pavement structure on Bloomington Road is not compromised by standing water, that the standing water does not become a hazard to motorists or a public health hazard from the prevalence of mosquito larvae.

The Position of LSRCA

[36] While most of the LSRCA’s submissions focussed on the dispute as to whether the berm is located within their jurisdiction and the effect of the berm on the course of water to the PSWs, the position of the LSRCA on the issue of what caused the flooding aligns with that of the Region with respect to the berm preventing the drainage of waters to the PSW.

The Position of Mr. DiBlasi

[37] Mr. DiBlasi takes the position that there had never been overflow of water in previous years and that the overflow of water was caused by the work done by the Region to open up culvert C19 and deepen and widen the culvert on the south and north side. The ditch around culvert C19 was deepened to 3 feet and 100 feet long. This created a man-made pond from which water could not flow. Mr. DiBlasi relies on the work order of the Region in relation to the ditch, which is located in the Region’s supplementary motion record at page 5. The action required is noted as “unplug culvert”. His view is that prior to the deepening and widening of the ditch by the Region in July 2012 this culvert was “invisible and must have been covered up and underground.”[^6] The Region also deepened and widened the ditch on the north side at the same time as the work was done on the south side (the Region categorically denies this). As a result of this work, Mr. DiBlasi had no choice but to build the berm so water would not flow onto his land as a result of the work done by the Region. Mr. DiBlasi’s affidavit evidence was that there was no ponding in the north side ditch between 1982 and July 2012 when the work was done by the Region. Although water did accumulate in the north ditch after heavy rain, the ditch did not overflow and water flowed east in the ditch towards Leslie Street. The photographs at Tab E of Mr. DiBlasi’s responding motion record showed water accumulation in the north ditch in May 2007. This ponding occurred before the berm was constructed. The photographs at Tab D were also taken in May 2007, and show ponding on the south side ditch well prior to when the berm was constructed.

[38] Mr. DiBlasi also points out that there is no evidence of the depth of the ditch on the north side before the berm went up, nor is there evidence of any measurement of the depth of the ditch after the berm was constructed. The Region’s expert engineer was retained in December 2012, but never took any measurements, although he had ample opportunity to do so during 2013 before his report was published.

[39] Mr. DiBlasi’s view is that even if the berm is removed, water would still pond in the north ditch. The water has nowhere to go as the northerly lip of the ditch is at least three feet above the highest water level.

[40] In 2008 the Region expropriated 39 feet of Mr. DiBlasi’s land to expand Bloomington Road. The former southerly edge of his land was moved north by 39 feet. There is, however, no elevation line to show what the elevation was for his lands in 2008, nor for the elevation of the lands post-expropriation but prior to the construction of the berm. Mr. DiBlasi submits that a trial would require that surveys be done for elevation lines prior to and after the expropriation, but before the berm was constructed. Topographical surveys pre-2008 and post-2008, but prior to the construction of the berm, would be required to determine the proper elevation lines. This would bring clarity to the issue of the level of Mr. DiBlasi’s lands when the berm was constructed in 2012, and the depth of the ditch. The Region should have provided that material but did not. With respect to any concerns in relation to ponding, Mr. DiBlasi submits that there is evidence of only 4 days of high volumes of water, and 11 days in which the Region pumped water from the ditch.

[41] The consequence of the Region deepening and widening the south side ditch is that they created a new situation in which water flows from the south side to the north side and then onto Mr. DiBlasi’s land. The Region caused more water to come onto Mr. DiBlasi’s land and he had no choice but to construct the berm.

[42] According to Mr. DiBlasi, any pumping of water done by the Region is solely as a result of their own actions in deepening and widening the south and north ditches. Further, there is no evidence that water in the north ditch has affected the pavement structure of Bloomington Road. In any event, if such damage has or does occur, it is solely as a result of the Region’s own actions.

[43] The Region did not serve its material in this matter until September 2013; over a year after the berm was constructed and including a spring and summer of wet weather. There is clearly no urgency to this matter.

[44] The Region has allowed the pooling of water in at least six other areas along Bloomington Road which are as serious, or more serious, than the ponding in question. In some cases, this ponding has been caused by the Region and they have taken no action.

[45] As for Mr. Mizra’s report, the defendants’ view is that it is of minimal value in that it does not identify any damage to Bloomington Road, it is theoretical as to what might occur in future and it does not opine on the reason for the ponding.

[46] With respect to water quality in the ditch, the SPL report confirms some contamination in the surface water in the north ditch. No follow up or testing has been done with respect to this finding, nor has the Region attempted to find the source of the contamination.

[47] Mr. DiBlasi’s expert, Dr. Coleman, is clear that the ponding was caused by the Region’s actions in opening culvert C19 and excavating the north ditch. Dr. Coleman suggests that the Region could alleviate the problem by excavating the ditch further east to Leslie Street and restore the former flow of water.

[48] In summary, Mr. DiBlasi’s position on this issue is that the berm did not cause and has nothing to do with the ponding of water in the north ditch since August 2012. It was the Region’s so-called “preventative maintenance work” on the ditch by widening and deepening the ditch, and opening culvert C19 which caused excessive water flow, such that the berm was required. As the construction of the berm was required because of the Region’s actions, any resulting damage to the pavement or requirement for pumping the ditch are the sole the responsibility of the Region.

Issue Two – Is the Berm Affecting the Flow of Water to the PSW?

[49] At issue is the flow of water overland when it rains and the ditch fills with water; and whether the berm is located within the 120 metre setback of the PSW.

The Position of the Region

[50] The Region retained Mr. Mark Hagesteijn to prepare a report. The expert’s report provides an opinion regarding the pre-berm flow of water as per the aerial photograph located at Tab 4 of the compendium of photographs and figures. This shows that prior to the construction of the berm water flowed from the south side of Bloomington Road, through culvert C19, and then across Mr. DiBlasi’s property into the Wetland. The expert calls the flow of water overland an intermittent watercourse. The watercourse is only present during times when rain results in the flow of water overland. The aerial photograph also shows a brown area, which is consistent with water draining over that part of Mr. DiBlasi’s property.

[51] The Region takes the position that the evidence is clear that prior to the construction of the berm water flowed exactly as per Mr. Hagesteijn’s report, through the culvert, along the ditches and into Mr. DiBlasi’s land as a sheet, and then more narrowly to the Wetlands. This is shown succinctly at Tab 10 of the compendium, which specifically notes a drainage course on a topographical map prepared by Delph & Jenkins Limited dated January 18, 2000. The drainage course is noted in the exact position which Mr. Hagesteijn says is the intermittent watercourse.

[52] There is no issue with respect to the berm being within the setback of the PSW. The aerial photograph at Tab 5 of the compendium when viewed in conjunction with Tab 2G of the Region’s motion record make it clear that the berm is within the red-circled setback area.

The Position of the LSRCA

[53] Mr. Hill, on behalf of the LSRCA, advised that the subject property contains wetland which is provincially significant. He pointed to a map located in the motion record of the Region at Tab G, which shows the boundaries of the jurisdiction of the conservation authority.

[54] Provincially significant wetlands are areas identified by the province as being the most valuable based on a science based ranking system known as the Ontario Wetland Evaluation System. The information is provided to planning authorities to support the land use planning process. Wetlands are among the most productive and biologically diverse habitats on the planet. Mr. Hill pointed to section 28(1)(b) of the Conservation Authorities Act, which allows a conservation authority to make regulations in relation to “prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of river, creek, stream or watercourse, or for changing or interfering in any way with a wetland”, and section 28(1)(c) “prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”. Mr. Hill argues that section 28(25)(d) of the Conservation Authorities Act defines development as including “the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere”. He submits that the berm, therefore, constitutes development as defined by the Conservation Authorities Act.

[55] He then referenced Ontario Regulation 179/06 with respect to the regulations related to the LSRCA. Those regulations indicate that development in areas within the jurisdiction of the LSRCA cannot be undertaken in “(d) wetlands; or (e) other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands”. The onus is on Mr. DiBlasi to show that the berm is not within the 120 metre setback of the PSW. A view of the photo located as Exhibit G to the affidavit of Mr. Alibhai, sworn September 23, 2013, shows that the berm is clearly within the setback area. Therefore, the regulation applies and permission is required before work can be undertaken.

[56] Mr. Hill takes the position that there is a public interest at stake, and an apparent breach of the Conservation Act regulation, which could result in harm to the environment. While Mr. Hill was only an intervenor, and did not present evidence, he submitted that the court can take the LSRCA’s concerns into consideration when exercising discretion as requested by the Region.

The Position of Mr. DiBlasi

[57] The defendants submit there is no evidence that the berm is located within the 120 metre setback of the PSW. Further, Mr. DeBlasi denies he is in violation of any section of the regulation because the berm does not interfere with any hydrologic function. The berm sits on the post-expropriation southerly edge of the property where it has not affected any of the water in the expanded ditch between the berm and Bloomington Road, or the condition of the land to the north of the berm. Further, the berm does not interfere with any existing channel of a river, creek, stream or watercourse because there is no river, creek, stream or watercourse to be interfered with, and no wetland in the area of the berm. Mr. DiBlasi’s position is there is no evidence to the contrary.

[58] According to the expert of Mr. DiBlasi, Dr. Coleman, the water in the ditch infiltrates the land within 27 hours after rainfall, absent an extraordinary rain event. Dr. Coleman explains that the water goes underground to the pond as it always has. There is no water flow on the so called intermittent watercourse, other than when it rains, and there is therefore no waterbed or banks. The topographical survey relied upon by the Region does not show a watercourse, just a downward elevation line pointing towards the pond. The drainage course starts in the middle of the lands, and there is no evidence that any drainage course goes from the edge of Mr. DiBlasi’s lands. Evidence provided by the Region does not support the contention that water flows from the ditch overland.

Legal Issues and Analysis

Statutory Injunction

[59] The Region seeks a statutory injunction pursuant to the Municipal Act, 2001. They rely on section 440 of the Municipal Act, 2001, which provides as follows:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

[60] The Region relies on Croplife Canada v. Toronto (City)[^7] for the proposition that the Ontario Court of Appeal has stated that the powers of municipalities under the Municipal Act, 2001 should be not be interpreted restrictively and a broad purposive approach should be used.

[61] Further, the Region’s by-law number R-686-81-40 prohibits the obstructing or encumbrancing of regional roads without lawful authority.

[62] In seeking a statutory injunction, the factors that would normally be considered in an application for an equitable injunction do not apply. Irreparable harm and balance of convenience do not need to be considered because the public authority is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest.[^8]

[63] The breach must be a clear one, but once established the court will grant a statutory injunction on an interlocutory basis.[^9] By way of balance, however, there is a higher evidentiary burden placed on the party seeking the injunction. The Region in this case must establish that a clear breach of the by-law has occurred.[^10] By contrast, the responding party need only show it has an “arguable defence.”[^11]

[64] Finally, the fact that the defendants may suffer some hardship form the imposition of the injunction will not outweigh the public interest in having the law obeyed.[^12]

[65] I find in the circumstances of this case that a statutory injunction must issue for the following reasons.

Mr. DiBlasi’s Evidence is Unreliable

[66] I accept and find as a fact that the Region did not excavate the north ditch. I accept the affidavit evidence of Mr. Salim Alibhai that the work order at Exhibit A to his affidavit sworn December 4, 2013, relates to the south ditch and that as per undertaking no. 12 from his cross-examination on September 23, 2013, no other information about any work done on the north ditch by the Region was found.

[67] I also find that Mr. DiBlasi’s evidence on this point is confused and unreliable. His affidavit sworn November 25, 2013, indicates that the photographs (taken by him) at Exhibit C are photos showing the north ditch after the work was done by the Region. However, in his cross-examination he concedes he may have been confused, and that the photographs at Exhibit C may well be photographs of the south ditch as put to him by counsel for the Region.[^13]

[68] I do not accept the position of the defendants that prior to the work done by the Region on the south ditch that culvert C19 was blocked. Mr. DiBlasi’s letter dated December 12, 2012, accuses the Region of illegally placing culvert C19 and “illegally directing into my property all the water coming the hwy (sp.)….” However, in his cross-examination Mr. DiBlasi concedes that culvert C19 has been there since before he bought the property in 1982, and that instead of accusing the Region of placing the culvert there he should have said “opened” in his December 12, 2012, letter.[^14]

[69] In Mr. DiBlasi’s letter of December 12, 2012, he explains that the construction of the berm was necessary to protect the water wells on his land from contamination of the water in the ditches opened up by the Region. However, in his cross-examination he denies that he built the berm to keep water off his property. Instead, he says that he built it to finish the berm on the north side of Bloomington Road.[^15]

[70] Overall, I find that Mr. DiBlasi’s evidence is unreliable. I accept that his motives for building the berm may not be as altruistic as he wishes this court to see them. As such, where Mr. DiBlasi’s evidence and that of the Region conflict, I prefer the evidence of the Region.

The Evidence of the Region’s Experts Should be Preferred

[71] It is not clear to this court that the defendants’ expert would have been qualified to testify as an expert had a trial been held in this matter. As per Fogan v. Nowacki[^16] the evidence of an architectural technologist was rejected on drainage issues because he “was not qualified to speak to technical and engineering issues and could offer no expert opposing evidence….”[^17] In the case at bar, the Region’s expert, Mr. Hagesteijn, was a qualified engineer with 30 years experience in storm water management. I accept that his scientific analysis using computer modelling should be preferred over Dr. Coleman’s method of reviewing surveys and walking the property. To be clear, I do not take anything away from Dr. Coleman’s expertise in land use planning and ecology. The fact remains, however, that such expertise is not the type of expertise needed to make the scientific assessments needed in this case.

[72] As such, I accept Mr. Hagesteijn’s conclusions at page 14 of his report dated December 5, 2013, and specifically his conclusions that in summary are as follows:

(a) Prior to the construction of the berm, water drained from the ditches and culvert C19 into a watercourse on Mr. DiBlasi’s property;

(b) The berm could create ponding up to a depth of 1.88m which is considered a safety hazard without a guide rail between the pond and the road edge;

[73] The defendants submit that the Hagesteijn report fails to provide elevation levels for the southerly edge of the defendants’ lands. The Region relied on elevations contained in a Ministry of Natural Resources (“MNR”) survey going back to 2003. The defendants submit that the MNR 305 elevation line prevents the flow of water from expanded ditch onto the subject property, with or without a berm.

[74] With respect, there is no evidence of this. There is evidence that the location of culvert C19 is a low point, but there is no evidence that the 305 elevation acts as a barrier to keep water in the ditch. Mr. Hagesteijn was not asked to confirm this alleged fact in his cross-examination.

[75] The defendants also note that Mr. Hagesteijn does not dispute that water in the ditch infiltrates underground into the property to the north of the ditch within 27 hours. The defendants use this admission to imply that ponded water eventually seeps into the ground in any event and will not cause the problems alleged by the Region. With respect, Mr. Hagesteijn clarifies this issue in his cross-examination. He states that pre-berm the water flowed overland. Post-berm the water will infiltrate into the ground and either evaporate, infiltrate or “mainly it will sit as a lake there.”[^18] One cannot infer from Mr. Hagesteijn’s evidence that infiltration is either an acceptable way of dealing with the ponding of that any infiltration will feed into the PSW.

[76] I also accept the expert evidence of Mr. Cameran Mirza, a professional engineer with 40 years experience in pavement engineering. I accept his evidence on the same basis as that of Mr. Hagesteijn. I accept his conclusion that the “capillary” effect of standing water in the ditches will weaken the pavement structure through freezing and thawing over time. This can reduce the life of pavement structure from 15-20 years to 3 years.[^19]

[77] Mr. Mirza’s report is criticized by the defendants for being too theoretical and for not providing an opinion about why the water is ponding. With respect, Mr. Mirza was not asked to give an opinion about the reason for the ponding. He was to provide an opinion with respect to the impact of the flooding/ponding on the current and proposed pavement structure. His report may be interpreted as somewhat theoretical as he was clearly asked to contemplate the future impact of flooding/ponding in the relevant areas. I find that Mr. Mirza has the qualifications to make such opinions and that giving an opinion about possible future outcomes for pavement damage was not outside of his expertise.

There is no Evidence of Flooding Prior to August 2012

[78] Mr. DiBlasi was unable to provide proof that such flooding existed as alleged. The photographs he provided were taken by him and showed flooding in July and September 2013. He did not produce any photographs of flooding prior to that date. He agreed in cross-examination that he had never seen conditions like this “since you opened the culvert.”[^20] I infer from this testimony that Mr. DiBlasi meant that he had never seen conditions like this (meaning flooding) since the Region did the work on culvert C19 in June 2012, and I accept that as his evidence. Mr. DiBlasi again blamed the flooding on the work done by the Region, but that does not take away from his observations of the increased water levels from the photographs taken after the berm was constructed.

[79] Further evidence of flooding after the construction of the berm was in the form of concern by the occupants of the property adjacent to the south ditch, namely, Miller Waste Systems. This concern was raised by Miller in November 2012. Upon inspection by the Region in November 2012 it was determined that the berm was preventing water from flowing in its normal course through culvert C19. A demand letter to remove the berm was sent to the defendants shortly thereafter.[^21]

[80] There is also photographic evidence which confirms the flooding after August 2012. Photograph 2 in the compendium was taken in 2007 and shows the area in which the berm was ultimately constructed. The land can be seen to slope down towards the defendants’ property. Also, photographs 5, 6, 7 and 8 in the compendium taken after the berm was constructed clearly show flooding in both ditches.

[81] Mr. DiBlasi argues that the photographs at Exhibit C of his affidavit sworn November 25, 2013, are evidence of flooding prior to the construction of the berm, as those photographs were taken in July 2012. It must be kept in mind however, that Mr. DiBlasi’s evidence on cross-examination was that he was not sure that these photographs are of the north ditch or the south. The Region submits that these photos are of the south ditch, and that the allegations of the defendants that the Region’s work on the north ditch causing the flooding are false and in any event cannot be corroborated by Mr. DiBlasi. Moreover, the photographs at Tab 6 of the compendium are from Mr. DiBlasi’s own records and clearly show flooding in the north ditch in July 2013.

The Berm is Preventing the Flow of Water to the PSW

[82] While it is true that Mr. Hagesteijn has never personally observed an intermittent water course on the property, nor any water flowing overland onto the subject property from the ditch, that does not mean that such a watercourse does not exist.

[83] I accept Mr. Hagesteijn’s findings that prior to the construction of berm, water flowed from the north ditch onto the defendants’ property as sheet flow and then narrowed into a watercourse. I accept that a watercourse does not always need to be filled with water to be an area in which water flows. The markings of such a course can clearly be seen in the aerial photograph at Tab 4 of the compendium in the form of the brown coloured area leading into the PSW. Further, the Delph & Jenkins survey dated 2000 and produced by the defendants shows a marked “drainage course” in the same area.

[84] According to the LSRCA the berm is blocking the flow of water from the ditch and across the defendants’ land into the PSW. They have served Vito DiBlasi with a Notice of Violation dated September 26, 2012, with respect to the unauthorized development, interference or alteration in or on a wetland setback. While this case is not concerned with that prosecution, it would seem odd that the LSRCA would pursue such a prosecution without confidence that the subject berm was actually within the wetland setback. Further, the LSRCA map located at page 57 of the Region’s motion record clearly shows the berm within the boundary of the setback.

[85] I find that Mr. DiBlasi’s argument that the berm is not within the setback area to be disingenuous in the face of the evidence presented. It appears he does not like to be told what to do when it comes to his property. He applied for permission to construct the berm only after he had already constructed it. In 2007 he submitted a permit for placement of fill only after he received a Notice of Violation from the LSRCA. Mr. DiBlasi appears to like to act first and seek required permission later.

A Ditch is Part of the Road over which the Region has Jurisdiction

[86] The Municipal Act, 2001, S.O. 2001 c. 25, does not define the term “road”. However, it does contain a definition of “highway” at section 1(1):

“highway” means a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway; (“voie publique”)

[87] In W.D. Russell in Russell on Roads, at page 51, (2nd Ed., Carswell: Toronto (2008)), states that “the term ‘common and public highway’ in the Municipal Act, 2001 refers to roads owned by the municipality.”

[88] Section 26 of the Municipal Act, 2001, specifies what is considered a “highway”:

The following are highways unless they have been closed:

All highways that existed on December 31, 2002.

All highways established by by-law of a municipality on or after January 1, 2003.

All highways transferred to a municipality under the Public Transportation and Highway Improvement Act.

All road allowances made by the Crown surveyors that are located in municipalities.

All road allowances, highways, streets and lanes shown on a registered plan of subdivision.

[89] The Municipal Act, 2001 recognizes at section 44(8) that parts of a highway can be “untravelled”:

(8) No action shall be brought against a municipality for damages caused by,

(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or

(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. [Emphasis added.]

[90] In the case of Stager v. Muskoka Lakes (Township), 1989 4176 (ON SC), 71 O.R. (2d) 126, the court notes “[I]n my view the road includes not only the travelled portion but also the ditches and verges and the full extent of the road allowance”. However, this case interprets the 1980 version of the Municipal Act, R.S.O. 1980, c. 302. The case was affirmed at the High Court of Justice, Divisional Court, (1989), 71 O.R. (2d) 126. The definition of “road” adopted in Stager was also mentioned in Saiviarkand Investments Ltd. v. Toronto (City), [2009] O.J. No. 6424, at para. 16.

[91] In R. v. Wassilyn, 2006 ONCJ 248, the central issue was whether the definition of “street” in the Toronto Municipal Code, Chapter 743, includes a sidewalk. The Toronto Municipal Code defines “street” as a “highway” as defined in section 1(1) of the Municipal Act, 2001. The court ruled that the definition of “highway” included the sidewalk. At paras. 8-11, the decision was based on a close interpretation of the Municipal Act, 2001, itself and jurisprudence:

8 Section 55(1) of the act provides: An upper-tier municipality is not responsible for the construction and maintenance of sidewalks on its highways and the lower-tier municipality in which the highways are located is responsible for the construction and maintenance of the sidewalks and has jurisdiction over that part of the highway, unless the municipalities agree otherwise. (emphasis added).

9 Similar references to sidewalks forming a part or parts of highways are also found in sections 42, 60, and 297 of the Municipal Act, R.S.O. 1990 c. M.45.

10 The civil jurisprudence while not directly applicable, in my opinion, supports the respondent's position that the sidewalk forms part of the highway. In Green et al. v. Dixon Road Car Wash Ltd et al., (1981), 1981 1941 (ON SC), 124 D.L.R. (3d) 503 Justice Craig noted at p. 505:

• If "highway" in s. 427(1) does not include "sidewalk" then, aside from cases where snow and ice are involved (s. 427(4)), actions against municipalities for damages with reference to sidewalks would be confined to a common law right of action based on misfeasance; the statutory liability for non-repair would not arise. In my opinion that is clearly not the case; "sidewalk" must be considered as part of a highway as defined in the Municipal Act, s. 1, para. 10, and referred to in s. 427(1). For years the cases have all proceeded on that basis and assumption. To mention a few: Gilmour v. City of Toronto (1926), 30 O.W.N. 319 at p. 320; McCracken v. Hamilton, [1959] O.W.N. 128; affirmed [1960] O.W.N. 74.

11 In the case of 122-124 Avenue Road Holdings Inc. v. Toronto (City) (1992), 1991 7146 (ON SC), 6 O.R. (3d) 661 Cavarzan J. noted at p. 663:

• It is undisputed that "highway" in the Municipal Act includes all of the highway, that is to say, the roadway, the sidewalks, and the boulevards.

[92] In McQueen v. Niagara-on-the-Lake (Town) (1987), 9 A.C.W.S. (3d) 45, [1987] O.J. No. 2416, at para. 13 the court ruled that a boulevard, which is between a sidewalk and a roadway was part of the “highway”. However, this case interpreted a previous 1980 version of the Act at section 257.

[93] If the reasoning of Wassilyn and McQueen is applied to the issue at hand, then a “highway” under the Act includes a sidewalk and a boulevard, and must also include the ditch within its parameters. This conclusion is bolstered by section 44(8) of the Municipal Act, 2001 that recognizes that some parts of a “highway” are untraveled.

Clear Breach of the Municipal By-Law and Flagrant Breach of Regulation 179/06

[94] Given the above I find that there has been a clear breach of by-law R-686-81-40 and CAA regulation 179/05 in that:

(a) The ditch forms part of the road – being Bloomington Road.

(b) It is undisputed that Bloomington Road is a road under the jurisdiction of the Region;

(d) The berm has caused the flooding in the north ditch;

(e) The berm is an “encumbrance” which has been interpreted to include an item which clogs, impedes, hinders or obstructs;[^22]

(f) The berm is located within the PSW setback;

(g) The berm prevents the flow of water overland to the PSW which is a clear breach of Regulation 179/06;

(h) There are no exceptional circumstances which would prevent the granting of the injunction;

(i) The infringements of by-laws in other areas of Bloomington Road which have not been addressed by the Region, as alleged by the defendants, are not a defence to this action; and

(j) The flooding in the north ditch will harm the pavement structure of Bloomington Road even with regular maintenance;

[95] In the event I am wrong with respect to the test for a statutory injunction, an injunction would issue based on the berm being a public nuisance. The same principles apply to the test for a public nuisance as a statutory injunction.

[96] A public nuisance may be an activity which interferes with the public’s interest in health, safety, morality or convenience or it may involve interference with a public right of way such as a street or highway.[^23]

[97] There is no doubt that the ponding in the ditches creates inconvenience as the public in York Region have had to pay over $11,000 to pump out the ditches since the berm was erected. Further, there are public safety issues related to the citizens of York Region and indeed any motorist using that section of Bloomington Road given that ponding could result in the drowning death of a motorist. Finally, there is the issue of the ponding creating a habitat for mosquito larvae and the public safety issues related to the potential spread of West Nile virus.

[98] The defendants argue that the Region has not met the test for public nuisance in that it has not established “special or peculiar damage” which is defined as extraodinary, direct and not fleeting. The defendants rely on the academic paper of Professor Alistair R. Lucas[^24] for this proposition. The defendants argue that there is no evidence of damage to the pavement or a mosquito hazard, nor any damages special to the Region.

[99] I respectfully disagree. In Torino Motors (1975) Ltd. v. Kamloops (City) (1988), 1988 2881 (BC CA), 63 D.L.R. (4th) 168 (BCCA) at para. 4 the court held that “[n]uisance includes the escape of water which inflicts damage, injury and inconvenience on all who come with the ambit of the nuisance.” I infer from this that nuisance may include not just the escape of water, but also the accumulation or ponding of water. I also find that the “all” referred to in this passage would include not just the public, but PSWs, which are areas designated to protect wetlands and the environment with the public interest in mind.

[100] I also do not find there any special circumstances which would prevent the issuing of an injunction in nuisance.

[101] The defendants raise the issue of whether this court has the jurisdiction to issue a mandatory injunction which is available only at common law. The Region responds with two arguments. First, removal of the berm is a form of restraining the defendants from continuing to contravene the by-law. As well, section 62.1 of the Municipal Act, 2001, sets out as follows:

62.1 (1) A municipality may apply to a judge of the Superior Court of Justice for an order requiring the owner of land lying along a highway to remove or alter any vegetation, building or object on the land that may obstruct the vision of pedestrians or drivers of vehicles on the highway, cause the drifting or accumulation of snow or harm the highway if the municipality is unable to enter into an agreement with the owner of the land to alter or remove the vegetation, building or object from the land. 2002, c. 17, Sched. A, s. 10.

Order

(2) Upon application by the municipality under subsection (1), the judge may make an order, subject to the payment of such compensation to the owner or other conditions as the judge may fix,

(a) requiring the owner of the land to remove or alter the vegetation, building or object in respect of which the application is made; or

(b) authorizing the municipality to enter upon the land, upon such notice to the owner as the judge may fix, to remove or alter the vegetation, building or object. 2002, c. 17, Sched. A, s. 10.

[102] The Region submits that this section of the Municipal Act, 2001, permits a mandatory order if the object will cause damage to the road. As I have already found that the road includes the ditch and as the conclusions in Mr. Mirza’s report concerning damage to the pavement have been accepted by this court, I find that this section of the Municipal Act, 2001, gives this court authority to require the “object” (in this case the berm) to be removed as harm to the highway will otherwise result.

[103] If I am incorrect with respect to the interpretation of section 62.1 of the Municipal Act, 2001, regarding the removal of the berm, I agree with the Region that restraining the defendants from continuing contravention of the by-law would include requiring the berm to be removed.

[104] As a statutory injunction and an injunction on the grounds of public nuisance have been granted there is no need to address the additional issues of irreparable harm and balance of convenience.

[105] The defendants shall remove the berm entirely by July 31, 2014. If they fail to do so by that date, the Region may remove the berm and the defendants shall pay the cost of the said removal by the Region.

Costs

[106] If the parties cannot agree on costs I will receive written submissions on a seven day turnaround by June 19, 2014, starting with the Region, then the defendants and then the Region by way of reply (if the Region wishes to file one). Written submissions shall be no longer than two pages in length, exclusive of any Bill of Costs or Offer to Settle. If no costs submissions are received within 35 days of the release of this judgment, costs will be deemed to be settled and no further submissions shall be received.

Justice C.A. Gilmore

Released: May 28, 2014

[^1]: Affidavit of Salim Alibhai sworn December 4, 2013, para. 5.

[^2]: Bloomington Road Flood Analysis report prepared by Mark Hagersteijn (R.V. Anderson Associates Limited) dated December 5, 2013, page 3.

[^3]: Report of Cameran Mirza (Coffey Geotechnics Ltd.) dated April 29, 2013, page 3.

[^4]: Affidavit of Salim Alibhai sworn September 23, 2012, para. 13 - Exhibit F.

[^5]: Reports of Gord Jarvis dated February 13 and May 15, 2013. Exhibit AA to the affidavit of Salim Alibhai sworn September 23, 2013.

[^6]: Affidavit of Gaetano DiBlasi sworn November 25, 2013, para. 14(b).

[^7]: (2005), 2005 15709 (ON CA), 75 O.R. (3d) 357 (CA) at paras. 6 and 8.

[^8]: Vancouver (City) v. Zhang, 2009 BCSC 84 at paras. 18-19.

[^9]: Newcastle Recycling v. Clarington (Municipality) (2005), A.C.W.S. (3d) 359, 2005 46384 (ONCA) at para. 32.

[^10]: Peachland (District) v. Peachland Self Storage, 2011 BCCA 466 (in chambers) at para. 30.

[^11]: Ibid at para. 30.

[^12]: Canada v. Ipsco Recycling Inc., 2003 FC 1518 at paras. 50-51.

[^13]: Cross-examination of Gaetano DiBlasi, February 25, 2014, page 33, questions 195 and 197.

[^14]: Cross-examination of Gaetano DiBlasi, February 25, 2014 at page28, questions 131-132.

[^15]: Ibid at page 9, question 16.

[^16]: 2012 CarswellOnt 14549 (OMB) at paras. 16 and 17.

[^17]: Ibid at para. 17.

[^18]: Cross-examination of Mark Hagesteijn dated February 26, 2014, questions 36 and 46.

[^19]: Report of Cameran Mirza dated April 29, 2013, page 3.

[^20]: Cross-examination of Gaetano DiBlasa on February 25, 2014, page 23, questions 107 and 109.

[^21]: Affidavit of Salim Alibhai sworn September 23, 2013 paras 28-30.

[^22]: R. v. Goodfellow, 2009 ONCJ 543 at para. 7.

[^23]: Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201 (SCC) at para. 52.

[^24]: “Public Nuisance: Public Wrongs and Civil Rights of Action” A Symposium on Environment in the Court Room, March 23-24, 2012, University of Calgary.

The Regional Municipality of York v. Gaetano DiBlasi and Vito DiBlasi, 2014 ONSC 3259

Case Summary

REASONS FOR JUDGMENT

gilmore J.:

Overview

Factual Issues

Issue One – The Cause of Flooding

The Position of the Region

The Position of LSRCA

The Position of Mr. DiBlasi

Issue Two – Is the Berm Affecting the Flow of Water to the PSW?

The Position of the Region

The Position of the LSRCA

The Position of Mr. DiBlasi

Legal Issues and Analysis

Statutory Injunction

Mr. DiBlasi’s Evidence is Unreliable

The Evidence of the Region’s Experts Should be Preferred

There is no Evidence of Flooding Prior to August 2012

The Berm is Preventing the Flow of Water to the PSW

A Ditch is Part of the Road over which the Region has Jurisdiction

Clear Breach of the Municipal By-Law and Flagrant Breach of Regulation 179/06

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 6