CITATION: Ruttan v. The Corporation of the Township of Strong, 2026 ONSC 1585
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leandra Ruttan and Brant Cook, Plaintiffs
AND:
The Corporation of the Township of Strong, Defendant
BEFORE: The Honourable Madam Justice M.E. Vallee
COUNSEL: Conner Harris and Leah Cummings, Counsel for the Plaintiffs
Michael Sirdevan, Counsel for the Defendant
HEARD: Nov. 12-15, 18, 20-22, 25-28, 2024, Oct. 14, 2025
reasons for decision
Introduction
1This is a novel case about flooding. Years ago, the Township granted building permits to the plaintiff Brant Cook’s grandfather for construction of buildings, including a residence, garage, and septic, on its own land, the shore road allowance, on Pool Lake. The plaintiffs now reside there year round. They state that the Township replaced a culvert which drains Pool Lake into Lake Bernard, a much larger lake. The new culvert is the wrong size, the water level in Pool Lake has risen and as a result, the land on which their buildings are situated is being flooded. The buildings are sustaining water damage. The plaintiffs state that the Township has an obligation to prevent this. Their claim is based on alleged negligence and nuisance. The Township states that it does not have an obligation to the plaintiffs to prevent flooding on its own land.
History of the property’s ownership and relevant events
2The property in issue on Pool Lake in the Township of Strong has been in the family of the plaintiff Brant Cook1 for 75 years. The municipal address is 963 South Lake Bernard Road, Sundridge. Originally, Donald Peever bought the land from the Crown. The patent describes the property as,
Broken Lot Number Nineteen in the Second Concession of the said Township of Strong. The said land is bounded by a strip of land one chain in perpendicular width along the shore of Pool Lake.
3At some point, Brant’s grandfather Frederick (Fred) acquired an interest in the land and owned it together with Stanley Seymour. In 1950, Fred bought out Mr. Seymour’s interest. In the transfer, the property is described as
Broken Lot Number Nineteen in the second Concession of the Township of Strong, in the District of Parry Sound, containing eighty-four acres, more or less. The said land is bounded by a strip of land one chain in perpendicular width along the shore of Pool Lake.
4The property is located at the south end of the lake. The “strip of land one chain in perpendicular width along the shore of Pool Lake” is referred to as the shore road allowance, SRA. It separates the property from the lake. Part of the property is a marsh. Initially, Fred and his wife Mary built a small white cottage on the SRA, which did not have a septic system. There is no evidence of a permit for this cottage. They decided to build a bigger cottage, south of the small white cottage and received a building permit for it in 1966. Most of it was on the SRA. Subsequently, in 1978, they received a building permit to turn this structure into a two- storey house with a garage. They applied for and received a permit to build a septic system because they wanted to live there full time. Fred also built a shed. In 1990, he died. Title to the property passed to Mary.
5On July 16, 2001, the Township Clerk sent a letter to Mary stating,
At a recent council meeting, the enclosed drawing was presented to council by the owners of Parcel 107 [the adjacent land]. Council thought you should have a copy of the drawing in the event you were selling your property. Due to all the buildings being on the shore road allowance, this may pose a problem for anyone purchasing your property who would require a mortgage. This drawing is meant for information purposes only.
6On February 4, 2002, Mary transferred the property to Robert Cook, Brant’s father and to Donald Cook, Brant’s uncle. Brant testified that he wanted to purchase the property. He had been visiting it ever since he was a young child. Uncle Donald was concerned about the buildings’ being on the SRA and wanted to obtain some assurance from the Township before the property was sold to Brant. Uncle Donald requested that council consider this. It passed resolution #17 dated December 18, 2001 which states,
Be it Resolved that this council does hereby confirm that the cottage at Roll 2-19-10 sitting on the allowance for road can remain at this location provided the cottage and septic is kept in good repair, the cottage cannot be enlarged.
7Brant and his wife, the plaintiff Leandra Ruttan, purchased the property on March 8, 2002. Most of it is bush. There is some swamp at the northern end. There is a ditch in the northeast corner of the property that separates the area where the buildings are located from the swamp. One of the buildings is a shed which is 15’ to 20’ from the ditch.
8Leandra testified that she knew that at least part of the house was located on the SRA when they purchased the property.
The culvert failure
9Pool Lake originally drained into Lake Bernard, a much larger lake to the northwest through a creek. At some point (the date is unknown) a culvert was installed, a road was built over it and the water flowed through the culvert. Kevin Minor was the roads superintendent for the Township for many years. He testified that the culvert was comprised of two pieces that were joined with a coupler. He testified that the water level in Pool Lake was high in the spring of 2003. The top of the culvert collapsed and then gravel was pulled down into it. It collapsed because of its age and rust at the coupler. As a result, the road was closed. A new culvert was installed.
10Brant and Leandra state that after the new culvert was installed, the lake water levels rose and began to flood around their buildings. This has caused significant damage. They state that the new culvert is smaller than the old one and is causing the flooding. It is the wrong size. The Township was negligent in failing to install an appropriately sized culvert to prevent the flooding. Their expert engineer performed an analysis and has concluded that a larger culvert or several culverts should have been installed to address the flooding. The plaintiffs state that the Township is liable for the damage.
11The Township states that flooding occurred prior to the installation of the new culvert. The new one is essentially the same size as the old one; therefore, the new culvert is not the cause of the flooding. Even if the new culvert is causing the flooding around the plaintiffs’ buildings, the land on which they sit is a SRA, owned by the Township. The Township does not have a duty to prevent flooding on to its own land.
Issues to be determined
a) What was the size of the old culvert?
b) What is the size of the new culvert?
c) Is the new culvert the cause of the flooding?
d) Does the Township have a duty to the plaintiffs to prevent flooding in the area of their buildings? Specifically,
i. following the installation of the new culvert, did the Township fail to undertake the necessary studies and assessments required to address the high water levels on Pool Lake and its impact on the plaintiffs’ lands;
ii. did the Township incorrectly rely on and continue to rely on the Department of Fisheries and Oceans and the Ministry of Natural Resources for advice and recommendations and to address issues that are outside the statutory duties of these agencies, and which are the Township’s responsibilities.
iii. If the Township is an occupier of the SRA within the meaning of the Occupier’s Liability Act, R.S.O. 1990 c. O.2 does it owes a duty of care to the plaintiffs? Is there an implied tenancy?
e) Has the Township created a nuisance by refusing to take steps to address the water level on Pool Lake?
f) Has the Township trespassed on the plaintiffs’ lands?
g) If the Township has been negligent, what are the plaintiffs’ damages?
Evidence of the plaintiffs Brant Cook and Leandra Ruttan
The beach
12Brant testified that his grandparents Fred and Mary poured a concrete pad in front of the small white cottage. This is shown in photos. At that time, the water’s edge was approximately 20’ out from the cottage. There was a beach from the cottage to where the shed is now located. It was 300’ long and 20’ wide. Brant stated that his grandfather would drive his car up to the steps of the cottage to unload things. He provided numerous photos of the land including a photo of a car on the beach as well as his grandmother walking on it.
The permits for the second cottage/house
13On August 19, 1966, the Township issued a permit to allow construction of a second cottage. Fred subsequently built it southwest of the small white cottage. No issue has been raised about the validity of these permits.
14Brant stated that on September 8, 1977 Fred and Mary made an application for a building permit to turn the second cottage into a house and build an addition on it. On page two of the application is a sketch showing the high water mark 52’ from the house. On May 21, 1978, the Township issued a building permit for construction of the house addition and the garage which Fred built. Fred also made an application dated May 23, 1978 for construction of a sewage system because he and Mary were retiring and wanted to live at the house full time. Page two shows the placement of the septic system relative to the lake and the house. The septic was constructed and continues to exist today.
Purchase of property
15Brant stated that he and Leandra purchased the property on March 8, 2002.
Application under the Surveys Act
16Brant stated that in 2019, the Township made an application under s. 48 of the Surveys Act, R.S.O. 1990 C. s.30 for a municipal resurvey of the road allowance to re-establish the road allowance relative to the plaintiffs’ property as well as other properties. The Surveyor General commissioned Mr. Stanton, OLS, to fix the boundaries of the SRA. His survey shows that the small white cottage and most of the house are located on the SRA.
17Brant stated that he and Leandra objected to it at the Surveyor General’s hearing; however, the Surveyor General concluded that the Stanton survey was accurate with some minor adjustments.
Illustration of the property’s features
18Brant reviewed a copy of plan 42R-1858 dated October 17, 2007.2 He outlined the property in yellow. He outlined in green the swampy area on the property. He also marked in pink the location of the ditch between the swamp and the area where the buildings are located.
Failure of old culvert and installation of new one
19The old culvert failed and the new one was installed in 2003.
Effects of flooding
20Brant testified that the new culvert appeared to be round. It seems to be smaller and sit up higher than the old one. There is a bump in the road. He stated that the old culvert seemed to be set lower. The stream came up to it.
21Brant stated that after the new culvert was installed in 2003, there have been extensive changes to his property as a result of flooding. After the new culvert was installed, water was pooling in the side yard. Docks had to be put in at a higher elevation in the spring. In 2004, the plaintiffs began contacting the Township to complain about the flooding. This continued for several years. Brant stated that he learned the Ministry of Natural Resources does not supervise nor regulate the installations of culverts in the Township. The road over the culvert is a Township road. Furthermore, the Department of Fisheries and Oceans has jurisdiction to approve culvert installation if it is satisfied that fish habitat would not be disturbed.
22By 2007, the corner of the concrete pad was under water. Part of the beach was lost then. Since then, the entire beach has been lost. Most of the time, the water is over the concrete pad in front of the small white cottage. It lifted the pad. The water has damaged the lawn in front of the house and has pushed back rocks and a fire pit. Most of the trees have died around the house. The house footings started to shift. By 2010, there was water in the house every year from the spring freshet and sometimes in the fall. Mushrooms grow in the basement during these times. Brant stated that he has torn up carpet. Cracks in the concrete floor and foundation are visible. The garage floor started to crack. The family room had a large crack in the floor because the water heaved the floor. He put in 15 yards of fill which helped for a few years but the water continued to increase. As of 2010, the shed was always flooded. He took everything out of the shed and put fill in it. The building is damaged. The posts are leaning 6 – 7”. The footings on the lake side of the building have deteriorated from water erosion.
23Brant stated that he has made efforts to minimize the water issues. He moved the garage doors so that they are higher. He put 2” of gravel on the concrete floor. He elevated various items on concrete blocks such as the refrigerator, the bar and the washing machine. The piers for the house need to be replaced.
24Brant provided a photo that showed by 2019, the docks were 20’ into the lake because the water level was so high. He stated that he had never experienced anything like this, even before he owned the property.
25Brant testified that in the summer of 2002, the water’s edge was 63’ away from the house. Now it is consistently 38’ back. The high water levels and flooding have had a significant impact on him and his family. In the spring, they do not have any visitors to reduce toilet flushing. They do their laundry in town. They drink bottled water because the well is flooded. The dampness has caused his trailer floor to rot out. A number of trees have died as a result of the flooding.
2008 Application by Township to DFO
26Leandra stated that in 2008 council was re-considering the culvert and approached the DFO. Mr. Pringle, Mr. Minor’s successor as roads superintendent, made another application for culvert installation to the DFO.
27The DFO suggested that the Township obtain an assessment from a hydrologist to confirm whether the water levels will change. The fish technician stated that he doubted they would.
28Leandra stated that the Clerk, Ms. Georgie, wrote an email dated November 25, 2009 which was copied to the DFO. She received a copy of it. It states
Council passed the following resolution at the November 11th 2008 council meeting…Be it resolved that this council does hereby agree that due to the advice from Oceans & Fisheries requiring a hydrological study and the conflict between the Pool Lake Assoc. and the Lake Bernard Property Owners Assoc regarding lake levels, Council has decided to take no further action on the Pool Lake Culvert Replacement….When council authorized Dave Pringle to make application to the DFO for the installation of a replacement culvert between Pool Lake and Lake Bernard, council wanted confirmation from DFO that the Pool Lake will drain into Lake Bernand and decrease the lake level of Pool Lake. DRO would not confirm this but suggested that the Township of Strong [sic] obtain an assessment from a hydrologist as to whether confirmation can be obtained with indications that the water level of Pool Lake will change.
It is the opinion of council that they are not going to incur this kind of expense and then find out that the water level of Pool Lake would not change. Also there is [sic] the two varied opinions of whether Pool Lake should be drained. Council have made their decision on this matter and it is final.
29On November 11, 2008, the Township passed a resolution signed by all councillors that, “this Council does hereby determine that due to the report received from Oceans and Fisheries requiring a Hydrological study and the conflict between the Pool Lake & Lake Bernard Associations re: lake levels, Council has decided to take no further action on the Pool Lake Culvert Replacement.”
Peter Smith’s letter
30Leandra stated that in 2010, Peter Smith, P.Eng., attended at the property to look at the culvert and offer an opinion on the flooding. He provided a letter dated May 13, 2010 which states that the culvert is 35” deep and 44” wide. At that time, there was water in only the bottom of the culvert. Mr. Smith stated that it is located too high to protect their property. He suggested that another culvert be installed beside it but at a deeper elevation.
2011 Township’s resolution
31Leandra stated that she attended a council meeting on July 12, 2011. There was a new mayor. She wanted to approach council again about a solution to the flooding levels. By this time water was coming into the family room. In 2011, the carpet and the furniture was wet. They had all of the carpets cleaned. The trees were dying in the swamp area.
32Leandra testified that Linda Maurer, the Clerk, sent her a letter dated August 11, 2011 stating that she had contacted the DFO and the MNR to request a site meeting to discuss the Pool Lake issues. They would not attend a site meeting because it was not in their mandate. She advised that council would not be pursuing any installation/replacement/changes to the existing culvert at this time.
Claim issued
33In 2012, the plaintiffs commenced this action.
Prior flooding
34Brant testified that he was not aware of any flooding problems before 2003 although through the course of the litigation he has become aware of a flooding incident. On April 1, 1998, Uncle Don took a video showing extensive flooding of the property and described it as “El Nino at work”. The water was almost to the edge of the house. The side yard was flooded over to the shed. Brant stated that he was not there then. Nobody ever told him about it. Uncle Don told him that on a rare occasion the property flooded.
Tullock survey
35Leandra stated that she and Brant hired Paul Forth, OLS of Tullock Surveyors to do a sketch showing the locations of the buildings in relationship to the SRA. He sent her a letter dated March 15, 2012 stating that he had reviewed the existing survey data and that he was, “…inclined to believe that at the time of the survey of the Township, the lake levels were the same. Additional evidence of similar levels is the fact that Brent [sic] remembers paddling in a small boat from one lake to the other and back prior to the culvert and road construction.”
Quotes for renovations
36Leandra stated that CA Boyes General Contractors came to look at the house and consider what could be done. Initially there were discussions about lifting the house but a new septic system would be required. CA Boyes provided a letter dated November 8, 2011 with budgets to do certain work. It included lifting the house and the garage and installing new block foundation and concrete floors for $15,000 to $20,000. Leandra stated that they did not proceed with it because of the cost and the fact that the flooding had not been fixed. She believed that the culvert still had to be rectified.
37Leandra stated that CA Boyes sent her an email dated August 5, 2012 setting out approximate costs for a new 2,000 square foot house. The house would be “around $300,000” and a detatched 24/ x 26/ garage would be between $18,000 and $20,000. Leandra stated that she and Brant did not have enough money to build a new house.
Mold remediation
38Leandra stated that from 2014 to 2015, she and Brant moved out of the house because mould remediation had to be done. Service Master provided a quote of $23,839. A family friend did the work because Service Master was too expensive. There was no written quote. He was paid $3,000. There is no documentation. They stayed in the small white cottage. In 2014, new posts were put in to support the house. In 2015, the basement had to be gutted. Brant stated that he threw out everything including furniture because of mold.
Raising and salvaging the house
39Leandra stated that in 2016 the flooding was very bad. Emergency sandbags were needed. Cedarland Homes Ltd, a builder from Parry Sound came to the property to investigate raising the house and salvaging it. They said they would not warranty this type of work because it had been built in sections. They provided a quote to build a new house in the same location with a warranty, which was $449,674. This did not proceed for financial reasons.
40In 2023 Royal Homes provided a quote to build a new house which was $1,000,771 including tax. It would be built on the footprint of the existing structure. This did not proceed because of the cost and because they could not obtain a building permit. The details are set out below.
Landscaping
41Leandra stated that Solid Rock Landscaping provided a quote dated March 12, 2015 to address some of the impacts from the flooding such as planting trees and adding fill. The work was not done due to the cost.
42Brant stated that the flood damage to buildings must be repaired. A building permit is required.
Attempt to obtain building permit
43The Township Clerk, Caitlyn Haggart, testified that the Township has a two-step process for obtaining a building permit. First, an applicant must demonstrate compliance with the zoning bylaw. If staff determines that it does, the person may proceed with a building permit application. If staff determines that it does not, then a person can apply for planning relief.
44Leanne stated that she and Brant filled out the form for the first step toward obtaining a building permit for repairs. Ms. Haggart confirmed that the Township’s written response dated April 6, 2021 was:
…we cannot approve you to move forward with a building permit at this time for the following reasons:
The site sketch provided is not consistent with Plan MS0855 so the set back information is not accurate.
The buildings are almost entirely on Township property.
The septic system and well are located on Township property.
These items would have to be addressed before making an application for a building permit.
45As noted above, the Township had issued permits in 1966 and 1978 for those buildings to be built on its property. The resolution required that the house and septic be maintained. Leandra stated that before 2017, nobody ever raised issues about the buildings’ being on the SRA.
46On cross-examination, Brant agreed that when he and Leandra purchased the property, he received a reporting letter from his lawyer stating that he had “…good and marketable title subject only to…the reservations as contained in the original Crown grant.” He did not purchase title insurance. He did not obtain a survey. His grandfather did not obtain one either. He did not see the Crown grant.
Attempt to purchase the SRA
47Brant agreed that when he and Leandra purchased the property, they were aware that the west end of it was low lying. The swamp drains into Pool Lake. It serves as an overflow or buffer. Grandpa Fred seeded the beach area because Grandma Mary complained of sand being tracked into the house. In front of the house, some of the sand became lawn. Brant stated that he did not know that his grandmother had received a letter from the Township in 1994 regarding the shore road allowance. He learned of it in the litigation. Neither his grandmother nor his Uncle Don ever mentioned it to him.
48Brant stated that he assumed that the house was not on the SRA because the Township granted a building permit and his grandparents lived there for a long time. He first learned that the house was on the SRA in the 2019 Surveyor General’s hearing.
49Leandra stated that they looked into purchasing the SRA; however, the Township deferred the decision to sell until the litigation is resolved. She also stated that purchasing it would be very expensive because of the size of the property and its long water frontage.
What was the size of the old culvert?
Kevin Minor’s evidence
50Kevin Minor, the Township’s roads superintendent at the time of the old culvert’s collapse and the new one’s installation, testified that sometime prior to the collapse, he got into the water and measured the old culvert. It was 48” wide (1,219.2mm) and 32” (812.80mm) high. He provided the same evidence at his examination for discovery on June 4, 2013.
Doug Cuthbert’s evidence
51Mr. Cuthbert has owned a cottage on Lake Bernard since 1977. He is a retired professional engineer. Prior to his retirement, he was employed by Environment Canada and was involved in engineering water management concerning waters between Canada and the United States. Mr. Cuthbert was not called as an expert witness.
52Mr. Cuthbert stated that since the 1950s, he has spent time on Pool Lake. He stated that water flows from Pool Lake to Lake Bernard. Originally there was an open small navigable creek between the two lakes. A culvert was installed in approximately 1965 when a road was built across the creek. This constrained the flow of water from Pool Lake to Lake Bernard. The Pool Lake water level rose a bit. In 2003 the culvert failed. Another one was installed which Mr. Cuthbert stated further constrained the flow of water. The Pool Lake water level rose higher.
53Mr. Cuthbert explained that the levels of most lakes rise in the spring when snow is melting and there is more rainfall. Pool Lake is no exception. Its water level is not controlled because there is no dam. Mr. Cuthbert's view was that the replacement culvert is smaller than the original culvert. He was told by Township staff that the original culvert was a 26” arched culvert with a flat bottom, which means that it was 26” across at its widest point. He never measured it. He states that the replacement culvert is round and has a diameter of 32”. It has limited capacity to provide the outflow from Pool Lake
54Mr. Cuthbert offered to provide an assessment of the replacement culvert capacity free of charge to the Township. His report is dated October 9, 2007. In it, he states that the 32” round culvert has reduced the Pool Lake outlet capacity. It has led to higher spring and early summer water levels on the lake. This caused serious environmental and ecosystem degradation on the shoreline and considerable shoreline flooding and damage to some private properties. He stated that there were three reasons for this.
55First, the 32” round culvert does not have as much outflow capacity at lower water elevations as does a 26” arched flat bottom culvert. It does not begin to have a higher outflow capacity as the 26” arched one until the water level reaches a depth of one foot or more above the bottom of the culvert. If the 32” round culvert was installed at exactly the same elevation as the 26” arched culvert, the round culvert would be less efficient in passing the outflow until the Pool Lake level rises to one foot above the bottom of the culvert. Mr. Cuthbert appended this sketch to his report as Attachment 5 entitled Culvert Cross-Section Comparison Sketches.
56Second, the new 32” round culvert appears to have been installed at a different slope then the original culvert. Dave Pringle, the road superintendent, told him that the new culvert was placed at the lowest elevation possible in the bedrock; however, if the new culvert was placed on a different slope than the original one, it would be tilted up and at a higher elevation where Pool Lake water drains into it.
57Third, his observations of the water level impacts on the shorelines and ecosystems of Pool Lake show that the replacement culvert does not perform as well as the original one did. Trees are dying as a result of the flooding.
58Mr. Cuthbert suggested some possible solutions. They include replacing the culvert by constructing a small bridge, replacing the culvert with an open bottom culvert and adding a second smaller diameter culvert.
59Mr. Cuthbert stated that the Township took no steps to replace the new culvert. He stated that the Bernard Lake Property Owners’ Association sent a letter dated August 29, 2008 A997 to the Department of Fisheries (DFO) confirming that the Township appeared to be prepared to replace the culvert but was informed by Phil Curtis (of the DFO) that the problem was not significant enough to merit DFO approval. Mr. Cuthbert stated that he disagreed with this. The Township did not submit an application. The Township took no further action regarding replacement of the new culvert.
60Mr. Cuthbert stated that from 2009 to the present, the condition continues. High water levels, ice on the lake and wind cause flooding and shoreline erosion. Structures near the edge of the lake are being impacted. His 2009 recommendations remain the same today.
61Mr. Cuthbert was shown the Township’s Culvert Installation Application. He had not previously seen it. At the bottom it states, “Existing culvert type: flat bottom arch Length: 32’ Diameter: 48”. He agreed that the 48” diameter was inconsistent with what he had been told. He was shown a letter from Phil Curtis (DFO) to Mr. Minor (roads department) stating that the original culvert had been washed out and was to be replaced with one that would be the same. He was shown the invoice for the Township’s purchase of the new culvert. It was a helical arch pipe 1150mm (45.25” span”) x 820 mm (32.25” rise). The length ordered was 12m. Mr. Cuthbert stated that this would make sense because it is not a round pipe.
62Mr. Cuthbert was shown a photo taken in 2011 of the replacement culvert. It shows a flat bottom arch pipe. Mr. Cuthbert stated that this does not reflect what was installed. A round pipe was installed. He stated that he kneeled on top of the pipe and looked in at both ends. He agreed that if the replacement culvert was a 44” flat bottom culvert, it would not restrain the flow of the water from Pool Lake to Lake Bernard. It would be 44” at its widest point, not necessarily across the bottom.
63Unfortunately, Mr. Cuthbert received some incorrect information regarding the size of the old culvert. He was told it was 26”. He was also told that the new culvert was 36”. As noted above, Mr. Minor, who measured it, stated that it was 48” across. Mr. Cuthbert’s measurements were inaccurate. He stated that the replacement culvert is round and has a diameter of 32”. The invoice for the new culvert shows that it is a helical arch pipe with a rise of 32.25”. Mr. Cuthbert may have taken his 32” measurement from the top of the culvert to the bottom, not realizing that it was an arch pipe. Because Mr. Cuthbert’s report was based on incorrect measurements provided by others, it is not useful.
The plaintiffs’ expert evidence
64The plaintiffs retained Crozier and Associates Consulting Engineers for an engineering opinion. Mr. Mocan is the president of Crozier. He is a professional engineer and was qualified as an expert to provide an opinion in civil and water resource engineering. He prepared a report dated July 25, 2017.
65On page 3, the report states,
The Owners have advised us that water levels in Pool Lake have been higher since the culvert under South Bernard Lake Road was replaced in 2003. In the Owners’ opinion, higher water levels are due to the New Culvert having a different configuration than the culvert that existed prior to 2003 (the Former Culvert).
66Mr. Mochan stated that Crozier was asked to answer a number of questions mostly related to how the existing culvert may be affecting Pool Lake water levels. He stated that the owners’ opinion played no role in Crozier’s analysis. It did a technical review: it took field data, used modelling tools, took precipitation measurements and came to its own conclusions.
67Understanding how Mr. Mocan determined the size and elevation of the old culvert is very important. He stated that there was no document or evidence of its size so to the extent possible, he used photographs. Mr. Mocan stated that he obtained four photos of the old culvert taken on June 5, 2003 when it was being removed. The four photos are on one page at A3567 appendix A of his report. He used the top left and right photos which I will describe as photos 1 and 2. Photo 1 shows some orange fencing that is 4’ high in the foreground. The culvert is in the background, partially obscured by the embankment. Photo 2 shows a section of the entire culvert that has been removed and is sitting on the bank next to the outflow area into Lake Bernard. There is no fence in this photo.
68Mr. Mocan stated that he took the image of the fence from photo 1 and superimposed it on the image of the culvert in photo 2. The two photos that he used to determine the old culvert’s size were taken in different locations. The items in both were different distances from the camera. The red fence was scaled and superimposed on photo 2. For scaling, in photo 1 he estimated the distance of the camera from the fence. In photo 2 he estimated the distance between the culvert and the camera. He rotated and scaled the fence to obtain the size of the culvert relative to the fence. He could not describe the details of this process because someone else from his office did it. The physical characteristics of the old culvert were estimated or inferred from the photographs. He agreed that there was no photo in the report showing the fence superimposed on photo 2 nor is there an explanation as to how the scaling was done.
69From this process, he determined that the size of the old culvert was 1630mm x 1120mm and the invert elevation was 329.74.
70Mr. Mocan stated that typically he does not use superimposing to determine the size of a culvert. He stated that there was no recorded elevation for the old culvert. He had to make an assumption. To say that the new culvert is at a higher elevation than the old one, he had to make an assumption about the old one.
71He did not know that a Township employee had actually measured the old culvert before it was removed.
72Mr. Mochan noted that the new culvert is 1150 mm x 820mm and the invert elevation is 329.74. From this, based on his assumptions, he concluded that the former culvert intake area was approximately twice the size of the new culvert and sits higher in contrast to the former culvert. He stated that in the photos the new culvert appears to be a different size but this is inferred from scaling the photos and not his measurements. He did not measure the old culvert. He noted that the physical characteristics of the old culvert were estimated or inferred from the photographs.
73He did not take any steps to see whether physically the new culvert could be lowered. Another study would be required for that.
74Mr. Mocan testified that he carried out a culvert hydraulics study using five different culverts: A – the new culvert; B – the former culvert; C- modified culvert 1; D- modified culvert 2; and E – modified culvert 3. He carried out water level simulations using the GAWSER model and prepared a chart comparing the water levels in Pool Lake resulting from culverts A to E. He prepared a chart entitled Storm Event Water Levels Comparison in Pool Lake using culverts A to E. He prepared another chart entitled Simulated Pool Lake Water Levels before and After Culvert Replacement in June 2003 which shows the water levels when the old culvert was in place and water levels with the new culvert in place.
75Mr. Mocan considered the modelled culvert performance based on road drainage compliance and impacts of water levels to private property.3 He noted that no design documents exist for the new culvert because it was replaced on an emergency basis.
76Mr. Mocan stated that in his opinion, based on the flooding frequency to the owners’ property of less than two years, the Township did not properly assess the impact of the new culvert on water levels in Pool Lake before or shortly after the emergency replacement of the old culvert. The structural engineering assessment carried out by Crozier determined that the frequency of this flooding has resulted in structural damage to the owners’ property. He states, “Most likely, these damages could have been reduced or mitigated if a proper risk assessment had been completed by the Township and mitigation remedies had been implemented.
77Mr. Mocan stated that before replacing a culvert, a hydrologic study is always appropriate and is standard. It must confirm that any replacement must not have adverse upstream or downstream impacts such as flooding. The study should be done ahead of time so that the design can be modified if there are any negative impacts.
78Mr. Mocan concluded that the new culvert is not appropriate. It should be replaced by one that is bigger and at a lower elevation. A further study would be required. If those changes were made, the impacts on the owners’ property would be reduced.
79Under cross-examination, Mr. Mocan agreed that his assumptions regarding the size difference between the old culvert and its elevation in comparison to the new culvert were factors that he considered in assessing the new culvert’s performance. He agreed that if the new culvert were the same size and elevation as the old one, there would be no difference in performance.
Analysis
80I have no reason to discount Mr. Minor’s evidence. He actually measured the old culvert. He ordered the new one. He was there when it was installed. He is no longer a Township employee and has no interest in the outcome of this litigation.
81The fact that Mr. Minor’s actual measurement of the old culvert was not provided to Mr. Mohan is surprising. As noted above, Mr. Minor stated at his examination for discovery on June 4, 2013 that the old culvert was 48” wide (1,219.2mm) and 32” high (812.80mm) Mr. Mohan’s report is dated July 25, 2017, four years later. Mr. Mohan’s overlaying photographs taken of different objects from different distances to determine the size of the former culvert is unreliable. As noted above, he determined that the size of the original culvert was 1630mm/64” x 1120mm/44” and the invert elevation was 329.74. Using Mr. Minor’s measurements, Mr Mohan overcalculated the width by 410.8mm/16” and the height by 307mm/12”. I find that Mr. Minor’s actual measurement of the former culvert is the most reliable evidence. Because Mr. Mohan’s report was based on incorrect assumptions about the size of the former culvert, it does not assist. Furthermore, although a hydrologic study may be appropriate and is standard, the plaintiff did not provide any authority for a legal requirement that this study be done. It could not have been done prior to the installation of the new culvert because replacing the old one was done on an emergency basis.
82I find that the size of the old culvert was 48” wide (1,219.2mm) and 32” high (812.80mm).
What is the size of the new culvert?
Mr. Minor’s evidence
83Mr. Minor stated that the Township had to apply to the Department of Fisheries and Oceans for permission to install a new culvert on an emergency basis. The authorization letter from DFO was based on his application. It was granted by Phil Curtis, Fish Habitat Technician, who set out installation requirements. The Township ordered a new helical arch pipe culvert and coupler. The invoice dated May 21/03 states that it was 1150 mm x 820mm (45 ¼” wide x 32 ¼” rise) and that the length was 12m. Mr. Minor stated that it was delivered.
Mr. Mocan’s evidence
84Mr. Mocan stated that he determined the width, arch and elevation of the new culvert from survey information and Crozier’s own measurements of it. He concluded that the new culvert is 1150mm x 820mm. Mr. Mocan stated that this was a standard size. There was nothing unusual about it. As noted above, from this he concluded that the former culvert’s intake area was approximately twice the size of the new culvert, in other words, the new culvert is half the size of the old culvert. He also determined that the invert elevation is 329.74. Therefore, it sits higher in contrast to the former culvert.
The Township’s expert evidence
85The Township retained D.M. Wills and Associates Limited to understand the impact of the new culvert on Pool Lake water levels, investigate the impact of alternate [sic] culvert installations on Pool Lake water levels, determine the impact of the Lake Bernard water levels on the culvert and determine the natural Regulatory Floodplain Elevation for the creek. Mr. Ken Smith prepared a report dated April 16, 2018.
86Mr. Smith stated that he took his information about the size of the new culvert from a Williams survey, which was not before the court. Mr. Smith stated that in a table on that survey, 1100mm x 900mm is stated to be the size of the new culvert, which is a CSP arch culvert. According to the invoice, the new culvert is 1150 mm x 820mm. The difference between the Williams survey and the new culvert size is that the Williams survey states that the new culvert is 50mm narrower (1.96”) and 80mm taller (3.14”) than it actually is. Mr. Smith stated that he did not speculate or make any assumptions regarding the size of the former culvert.
87Mr. Smith stated that he carried out a hydrology study which he described as an essential part of culvert analysis based on estimation of peak flows. He used Williams’ topographic survey dated 2014. He used a HEC-RAS model and carried out detailed calculations. Unfortunately, the existing culvert had to be modelled as a 1270 mm by 785 mm CSP Arch, a different size from the new culvert installed, because the hydraulic modelling program did not have a 1150 mm x 820mm option. The modelled size was 120mm wider and 35mm shallower than the existing culvert. At the end of his analysis, Mr. Smith concluded,
The results of the hydraulic analysis indicate that the existing culvert meets the MTO HDDS with respect to HW/D ratio, overtopping and freeboard. In addition, the culvert meets the requirements for safe access as defined by the Technical Guide – River and Stream Systems: Flooding Hazard Limit (MNR. 2002, having a flood depth of less than 0.30m over the road during the Regulatory Storm.
88Mr. Smith testified that if he had engineered a replacement culvert, the new one was the appropriate size. He noted that to install a smaller culvert, importing material would be required to make up for lost volume. Removing a culvert, placing fill and installing a new culvert higher would not make sense. He stated that the elevation of Pool Lake water levels is driven more by seasonal inputs sustained by wet weather and spring melts rather than events. He noted that Pool Lake has a lot of storage space and that the water levels in Lake Bernard do not have any impact on the water levels in Pool Lake. He stated that while the Ministry of Natural Resources (MNR) is typically the responsible authority, this area is not subject to a Conservation Authority. If the MNR were to apply a regulatory flood plain for development, it would restrict development on any lands below elevations of 330.63 m above sea level. Portions of the plaintiffs’ property would be within a natural regulatory flood plain for Pool Lake.
Analysis
89The new culvert is not round. It is noted to be an “arch pipe”. It would be the same shape as the letter “D”. It lies on the flat edge with the curved part going upward. Comparing Mr. Minor’s measurement of 48” wide to the 45 ¼” culvert that was ordered, the new culvert is narrower by 3 ¾”, 1 3/8” at either side. Some of the modelled assumed sizes are not much different.
90The fact that Mr. Minor’s actual measurement of the former culvert was not provided to Mr. Mohan is surprising. As noted above, Mr. Minor stated at his examination for discovery on June 4, 2013 that the former culvert was 48” wide (1,219.2mm) and 32’ long (812.80mm). Mr. Mohan’s report is dated July 25, 2017, four years later. Mr. Mohan’s overlaying photographs taken of different objects from different distances to determine the size of the former culvert is unreliable. As noted above, he determined that the size of the original culvert was 1630mm x 1120mm and the invert elevation was 329.74. Considering Mr. Minor’s measurements, Mr. Mohan overcalculated the width by 410.8mm and the length by 307mm. I find that Mr. Minor’s actual measurement of the former culvert is the most reliable evidence. Because Mr. Mohan’s report was based on incorrect assumptions about the size of the former culvert, it is of limited assistance.
91The DM Wills report does not analyse the size of the old culvert. Rather, it uses an incorrect model size for the new culvert due to limitations in the hydraulic modelling program, which is narrower than the new culvert. It is of limited assistance.
92Given Mr. Minor’s measurements which I accept and the details of the new culvert’s size set out in the invoice, I find that the new culvert is only marginally narrower than the old culvert.
When did the flooding begin? Is the new culvert the cause of the flooding?
Peter Cook’s evidence
93Peter Cook is Brant’s second cousin. Fred and Mary Cook were his uncle and aunt. He testified under subpoena served by the Township.
94Peter stated that he has owned a cottage on Pool Lake for 40 years, which is directly across the lake from Brant’s property and has water access. He is very familiar with the plaintiffs’ property because he has visited it since he was 5 years old.
95Peter stated that Pool Lake is very swampy at one end and very rocky at the other. Brant’s house is in the swampy end. He described it as a lot of water, bog and frogs. The shoreline is mucky. He recalled walking out into the water with muck under foot. Before the road was built, the family members had to walk through bog and water, carrying everything. He recalled being up to his waist in mud. Peter recalled that before the house was built he and other kids would go hunting for frogs. The area was grassy and marshy. He described it as nature’s paradise. In the spring, the property was always wet. In the summer it was dry.
96Peter recalled the time when the footings were dug for the house approximately 6 – 8’ deep. During the process, they would be covered for the night. In the morning water was in the holes.
97Peter stated that in one spring, the water went up to the back door of the house. This was extreme. It did not happen every year. In the spring rains, there was always water on the property. It was very low land. Peter stated that Fred wanted to improve the land. He used a bulldozer to push swamp mud from the lake up on to the property to create a berm to address the water. Between 1972 and 1976, Fred brought in many truckloads of sand. They covered the property with 2’ of sand, which kept the water away. Fred maintained it very carefully. He put down sod and grass seed. When it was damaged by high water, Fred would backfill it with more sand. When Fred was no longer at the property, these improvements were not kept up. The sand deteriorated. Some parts of it washed away. There was never any pre-existing sand on the property. All photos of a sandy beach show a man-made beach.
98After Fred passed away, Don Cook would tell him when the water was high. They put skids in the shed every year to keep the items up out of the water. Don put downspouts on the house to drain the water back into the lake. Between 1985 and 2002 there was flooding at the property every year. The amount would vary depending on the snow and the rain. Typically, there was water in the shed. It went into the garage 3 or 4 times.
99Peter testified that since 1985 when he purchased his cottage, the water levels have increased. He believes that there are many factors that could be contributing to this. He stated that the water has never gone over the road.
100Peter provided a video from 1998. He was not there that day. The video shows the shoreline leading up to the white cottage. The water is very high. He stated that it was one of the worst years. The shoreline, which is now in front of Brant’s house, still had ice on it. The shed was full of water. There was water in between the house and the shed, behind the house, up to the road and the laneway and in front of the garage. The skids in the shed were piled four feet high. A lawn chair left on the lawn was surrounded by water. Water was half way up a trailer’s wheels. The video shows Brant’s brother and a friend in a boat in front of the shed. There was so much water that they were driving the boat around the shed. Peter stated that the water remained at this level for a few weeks.
101Peter stated that a stream ran from behind his property down to the lake. In the early 2000s, a lot of logging was done behind his property. The stream tripled in size.
102Peter stated that he always thought that neither the old culvert nor the new one were responsible for the high water. He and Brant disagree on this. He stated that he was smelt fishing nearby when the original culvert collapsed. He believes that the culverts have nothing to do with the water level fluctuations.
103Peter stated that the property has deteriorated so the water comes in. He believes that if the amount of sand that Fred brought in had been maintained, there would not be any flooding today. Fred was meticulous. Back then, nobody would know that it was a swamp.
Analysis
104Peter is not an engineer. He is a retired bus driver and could offer only a layman’s view regarding the new culvert’s impact. I accept his evidence that between 1985 and 2002 there was flooding at the property every year. The new culvert was installed in 2003.
105Mr. Mohan stated that culverts can become deformed over time by road traffic. The arch can be pressed down making the culvert wider at the bottom. The old culvert was 48” wide. The new culvert is 45 ¼” wide. As noted above, the difference is 1¾” on each side. The plaintiffs did not provide volumetric calculations to show that this small difference in width would cause significant flooding. The new culvert is practically the same size as the old one. Given this and Peter’s evidence that prior to Brant’s ownership the property often flooded in the spring, sometimes to a significant extent, I find that the new culvert is not the cause of the flooding.
Was the Township negligent?
106As noted above, this is a novel case. The question is whether the Township has a duty of care to prevent flooding on to its own land, the SRA, given the fact that it granted building permits for the construction of the plaintiffs’ house on the SRA. There are no cases on point.
The plaintiffs’ position
Failure to undertake hydrological study
107The plaintiffs state that following the installation of the new culvert, the Township failed to undertake the necessary studies and assessments required to address the high water levels on Pool Lake and its impact on the plaintiffs’ lands.
Inappropriate reliance on DFO and MNR’s recommendations
108The plaintiffs state that the Township incorrectly relied on and continues to rely on the DFO and the MNR for advice and recommendations and to address issues that are outside the statutory duties of these agencies, and which are the Township’s responsibilities.
Township’s consent
109The plaintiffs state that the building permits issued by the Township and the 2001 resolution show the Township’s consent for the buildings to be located on the SRA. The Township would have had to satisfy itself that the property complied with the Township’s zoning, official plan and other requirements before issuing the building permits.
Duty of care to upstream owners
110The plaintiffs state that as a reasonable culvert owner, the Township has a duty of care to upstream owners, like them. It breached this duty of care by allowing water to flood the SRA and in permitting a dangerous condition on its property that it knew or ought to have known could cause injury to the plaintiffs.
Occupier’s duty
111If the Township is an occupier of the SRA within the meaning of the Occupier’s Liability Act then according to s. 3(1) it “owes a duty to take such case as in all the circumstances of the case is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while on the premises”. Section 4(3) states that the “duty does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property”. The plaintiffs did not willingly assume the risks.
Nuisance
112The plaintiffs state that the Township has caused high water levels to be present on the plaintiffs’ property. This has resulted in an interference being damage to the plaintiffs’ buildings and trees. The Township has created a nuisance. Courts have addressed the issue of whether someone who is not an owner or occupier of land but merely a licensee has a sufficient interest in land to maintain a claim in nuisance. The plaintiffs have a possessory interest in the land on which their buildings are located which is a stronger right than a licensee.
The defendant’s position
113The Pipes O’ Pan Group sent a memo to council dated July 3, 2001. It wanted to sell its adjacent property. The surveyor identified a cottage built on the SRA in front of their land. They state in the memo, “we believe these structures are illegal…this cottage and its associated structures will compromise the sale…” They asked council to consider the legality of the buildings and how to resolve the matter so that the sale can proceed.
114When Brant’s grandmother, Mary, received the letter dated July 16, 2001 from the Township Clerk stating that “Due to all the buildings being on the SRA,…” she and Uncle Don knew that the buildings were on the SRA.
115Uncle Don sent an undated note to council prior to the sale to Brant and Leandra stating, “access to Pool Lake [boat launch] has been a problem and wants to solve, would like to be put on agenda for Dec 18, letter that cottage will not be forced to remove from shoreline”.
116This resulted in the resolution dated December 18, 2001 that the cottage and septic can remain if kept in good repair.
117According to s. 5(3) of the Municipal Act, 2001, S.O. 2001, c. 25, all powers of a municipality must be exercised by bylaw. A resolution is a less permanent rule of municipal government and usually expresses the decision of a council in respect of a temporary or discrete matter. A resolution passed by council is not binding and does not create any legal obligation when it has not been passed by bylaw. While Uncle Don’s request resulted in the resolution dated December 18, 2001 that the cottage and septic can remain if kept in good repair, the resolution was temporary, non-binding, and did not give any rights to the plaintiffs or their older relatives. The defendant states that the resolution relates to the location of the original white cottage.
118The Township does not owe a private duty of care to the plaintiffs. The test in Anns v. Merton [1978] A.C. 728 (U.K. H.L.) was refined in Cooper v. Hobart, 2001 SCC 79. In para 30, the court stated,
The Anns analysis is best understood as follows. At the first stage of the Anns test, two questions arise:
was the harm that occurred reasonably foreseeable in consequence of the defendant’s act, and
are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?
The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual police considerations outside the relationship of the parties that may negative the imposition of a duty of care.
119There is no proximity here because the Township has no duty to ensure that its own lands were free from flooding as the plaintiffs’ predecessors in title had illegally constructed their structures on Township lands. The plaintiffs could not rely on the Township to prevent harm because any flooding occurred on the Township’s land.
120Even if a private law duty of care did exist, the Township is exempt as a result of its pure policy decision not to proceed with another replacement culvert due to the costs associated with a hydrological study, and in light of the DFO’s position that changing the culvert would not have any effect on the lake levels and associated flooding. The Township made a policy decision in 2008 when it determined that the cost of the hydrological study was excessive, given the DFO’s comments that it was unlikely to demonstrate a solution to the flooding at and around the plaintiffs’ buildings.
121In Cooper para 38, the court stated, “…it is inappropriate for courts to second-guess elected legislators on policy matters.”
122Furthermore, regarding policy decisions, s. 450 of the Municipal Act, 2001 states:
No proceeding based on negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of a municipality or local board made in good faith exercise of the discretion, shall be commenced against,
(a) a municipality or local board…
123Mr. Mochan’s conclusion that the new culvert is responsible for the flooding at and around the plaintiffs’ buildings is based almost entirely on the assumption that the new culvert is significantly smaller than the original culvert.
124Contrary to what he concludes, the old culvert could not have been significantly larger than the new culvert because according to Mr. Minor, the new culvert was simply placed in the void created by the old culvert. There is no evidence that the old culvert’s bed was altered in any way prior to or during the installation of the new culvert.
125The Township’s expert, Ken Smith, stated that the Township met the MTO Highway Drainage Design Standards and the requirements for safe access as defined by the Technical Guide – River and Stream Systems: Flooding Hazard Limit (MNR) 2002.
Analysis
126I reject the the plaintiffs’ position that following the installation of the new culvert, the Township failed to undertake the necessary studies and assessments required to address the high water levels on Pool Lake and its impact on the plaintiffs’ lands. While Mr. Mohan stated that a hydrological study was appropriate and standard, there is no mandatory requirement for the Township to undertake it.
127The Township may have relied on the DFO and the MNR for advice and recommendations and to address its questions; however, the Township was required to obtain approval from only the DFO for installation of the new culvert. The DFO fish technician was not qualified to give an opinion regarding whether a larger culvert would address flooding. This was in the purview of an engineer; however, the evidence shows that the new culvert was installed at the lowest level on bedrock where the old culvert had been.
128The building permits issued by the Township and the 2001 resolution do show the Township’s consent for the buildings to be located on the SRA. The plaintiff states that the Township would have had to satisfy itself that the property complied with the Township’s zoning, official plan and other requirements before issuing the building permits. There is no doubt that the house and septic construction permits were issued between 1966 and 1978. The Township was satisfied that the buildings could be constructed on the SRA which was first described in the 1935 Crown Patent. The buildings are likely now a legal non-conforming use. The plaintiffs’ consent argument goes toward the Township’s illogical refusal to issue a repair permit. It does not attract liability regarding flooding.
129The plaintiffs’ cases regarding duty of care to upstream and downstream owners concern property owners’ pollution of water affecting other owners on the same watercourse. That is not the situation here.
130The Occupier’s Liability Act defines an occupier as (a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities carried on, or control over persons allowed to enter the premises. Premises means lands and structures including water. The Township owns the SRA. It does not have physical possession in the typical sense of those words. It has responsibility for and control over the condition of its land; however, there is no legal authority to support the argument that granting a building permit to Fred to construct the house on the SRA, which was subsequently purchased by the plaintiffs, meant that the Township was required to keep the SRA suitable for the location and use of the house. The evidence shows that Fred knew the property was affected by water. He took steps to keep the water away from the house. Fred maintained the berm and beach that he created. He put down sod and grass seed. When it was damaged by high water, Fred would backfill it with sand. These activities were not carried on after Fred passed away. The water took overtook the man-made berm and beach.
131I do not accept the plaintiffs’ argument that the Township created a nuisance because the property was affected by water when Fred owned it.
132The Pipes O’Pan memo must have referred to the white cottage because the plaintiffs’ house is on the SRA in front of the plaintiffs’ lands.
133The December 18, 2001 resolution must have referred to the cottage which became the house because the white cottage did not have a septic. The fact that the resolution was not a bylaw is something of a red herring. The Township has acted in accordance with it. It has not required the various Cook owners of the buildings including the plaintiffs to remove them or the septic system. The resolution does not include any obligation for the Township to keep the SRA free of water. It just states that the buildings and septic can remain if maintained.
134The Township states that the plaintiffs “illegally” constructed their buildings on the SRA. I do not accept this. The Township granted building permits.
135The Anns/Cooper test applies to a defendant’s “act” that causes harm. Here, the Township did not act in a way to cause harm. Again, the property was affected by water when Fred owned it in 1966. As noted above, there was no requirement for the Township to have a hydrologic study done concerning the new culvert.
136The Township made a policy decision based on its view that the cost of the study was too much and that different landowners preferred different water levels.
137The Township was not required to meet MTO standards. It was not subject to approval by a Conservation Authority. It was only required to and did obtain approval from the DFO which was concerned about fish habitat. Even though it was not required to meet MTO standards, I accept Mr. Ken Smith’s evidence that the Township did meet them as set out in the MTO Highway Drainage Design Standards and the requirements for safe access as defined by the Technical Guide – River and Stream Systems: Flooding Hazard Limit (MNR) 2002.
Conclusion
138This will be a difficult decision for the plaintiffs. There is no legal basis upon which I can find that the Township was at fault. For the above-noted reasons, the plaintiffs’ claim is dismissed.
Damages
139In case I am wrong in concluding that the Township has not been negligent, I will consider the plaintiffs’ quotes for repairs and/or building a new house on their own property.
140Leandra stated that C.A. Boyes & Sons Ltd. provided an estimate to renovate the house which included preparation of drawings, obtaining permits including one for a new septic, lifting the building and garage, digging out the walls and foundation, installing a new foundation and concrete floors for the house and garage, new plumbing, electrical and heating, finished interior, new landscaping, and renovating the shed. The estimate shows a dollar range for each item. The lowest amounts in the range total $120,300. The highest amounts in the range total $174,800.
141Leandra stated that a builder, Cedarland Homes Ltd., came to the property to investigate raising the house and salvaging it. He said they would not warranty this type of work because the house had been built in sections. They provided a quote to build a new house in the same location with a warranty. The total was $449,674.97.
142Leandra stated that Royal Homes also provided a quote to build a new house on the same footprint. The total was $1,000,771.97
143The quotes to build a new house are not helpful because a new house would be a significant betterment.
144If I had found that the Township had been negligent, I would have awarded $147,550 for damages, which is the mid-point of the C.A. Boyes quote.
Costs
145If the parties are unable to agree on costs, they may file brief written submissions, no more than 4 pages of text with 14 pt. font size, regular 1” margins and 1.5 spacing exclusive of a costs outline and any offers to settle. If either party exceeds the 3 page limit, the additional pages will not be considered. The Township’s submissions are due within 3 weeks of the release date of this decision. The plaintiffs’ submissions are due within a further 3 weeks. The costs outline shall identify all lawyers on the file, their respective years of call and rates actually charged to the client. It shall also provide calculations on a partial indemnity basis including the rate applied, and if sought, the same on a full indemnity basis. A breakdown of the hours spent on specific aspects of the work shall be provided. A breakdown of disbursements shall be provided with copies of receipts if applicable. If the parties intend to rely on caselaw, hyperlinks shall be provided. If an offer was made that attracts costs consequences, the costs outline shall show the amount and value of the work done before the date of the offer and the amount and value of work done afterwards.
146All costs submissions shall be provided to my judicial assistant by email. If no submissions are received after the plaintiffs’ submissions are due, costs will be deemed to have been settled between the parties. If the plaintiffs do not provide costs submissions, the court will infer that they do not contest the Township’s request for costs.
Vallee J
Date: March 17, 2026