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Environment (Ont) - Drainage Act (DA). Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent
In Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent (Ont Div Ct, 2025) the Ontario Divisional Court considers the rarely-litigated Drainage Act:Purpose and Scheme of the Act
[14] At common law, the owner of land is not obliged to receive water that does not flow in a stream or other defined natural watercourse from neighbouring land and may build a structure (whether a boundary berm, dyke, retaining wall or other barrier) or raise the height of their land to block the flow of surface water provided that the landowner does no more than is reasonably necessary to protect the enjoyment of their land: see Di Gregorio v. Osborne, [2004] O.J. No. 2156 (S.C.), at para. 45; McLennan v. Meyer, [2005] O.J. No. 4665 (Ont. C.A.), at para. 3.
[15] The purpose of the Act was described by the Referee in his Order from November 30, 2022 (the “Actionable Issues Order”), at para. 17, as follows:... the Drainage Act is intended to overcome the common law obstacles to drainage of and thus the productive use of land in the Province. The effect of the common law is to encourage a broken-up, hedgerow-like landscape of border berms, dykes, retaining walls and other barriers to surface water flows designed to protect each individual land holding from surface water coming down from higher land holding(s). The result is no effective drainage of any of the lands in the watershed. The Drainage Act is designed to cut through those barriers and to provide comprehensive [community-initiated and financed] drainage systems which serve the needs of all in a watershed and to provide drainage works to facilitate the productive use of all land holdings. [16] The Act, with origins spanning back almost 190 years, provides that a municipal drain may be established by petition:(1) A petition for the drainage of an area requiring drainage by means of a drainage works may be filed with the clerk of the local municipality by the majority in number of the owners of lands in the area or by the owners representing at least 60 per cent of the hectarage in the area: see Act, s. 4(1).
(2) If municipal council decides to proceed with the petition, then it must appoint an engineer to examine the area to prepare a report that describes the drainage works, its estimated cost and how those costs should be allocated amongst the owner of lands to be drained even if they did not sign the petition. The allocation of costs is based the owner’s assessed benefit, outlet liability and injuring liability: see Act, ss. 8(1), 10(1), 21.
(3) If municipal council does not respond to the petition or declines the petition, then the petitioner may appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”): see Act, ss. 5(2), 10(6).
(4) The engineer appointed by the municipality shall prepare a report within one year: see Act, s. 39(1). If the engineer finds that a drainage works is not required or cannot be constructed under the Act, then the engineer shall forthwith file with the clerk its report: see Act, s. 40. If the municipality decides not to proceed, any petitioner can appeal to the Tribunal: see Act, s. 45(2).
(5) If the municipality intends to proceed with the drainage works, then it shall send a copy of the report to the petitioners and other prescribed persons: see Act, s. 41(1). If the municipality adopts the report, then the municipality shall send the report and a provisional by-law to the Court of Revision: see Act, s. 46 (1). An owner wishing to appeal their assessment must serve a notice of appeal on the municipality. An owner may appeal to the Tribunal from the decision of the court of revision: see Act, s. 54(1). [17] Once a municipal drain has been constructed under the authority of a municipal by-law, it becomes part of that municipality’s infrastructure, and the municipality becomes responsible for repairing and maintaining the municipal drain. The Act provides:(1) Drainage works shall be maintained and repaired by the municipality through which it passes at the expense of all the upstream lands and roads assessed by the engineer’s report: see Act, s. 74.
(2) On 45 days notice from any person affected by the condition of a drainage works, the municipality is compellable by an order of the referee to maintain and repair the drainage works: see Act, s. 79.
(3) If a municipality considers it appropriate to undertake one or more major improvement projects, such as an activity to improve the drainage works that is not prescribed as a minor improvement, for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by s. 4. The procedure follows that for a petition drain: see Act, s. 78. ...
[25] Under s. 79 of the Act a person that seeks an order compelling a municipality to maintain and repair its drainage works, or damages in relation to such failure to maintain or repair, must provide 45 days’ notice to the municipality.
[26] Section 79 of the Act states:Power to compel repairs
79 (1) Upon forty-five days notice served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.
Municipality liable for damages caused by non-repair
(2) Despite subsection (1), the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1) upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works.
No liability where drainage works blocked by ice or snow
(3) The local municipality whose duty it is to maintain and repair a drainage works is not liable in damages for any injury caused by reason of a drainage works being blocked by snow or ice and overflowing the lands of any person without negligence on the part of the municipal corporation. [Emphasis added.] [27] The Referee addressed the sufficiency of the notice in Issue #5 (above), in which he found that the Notice of Application on May 18, 2021, cured any deficiencies.
[28] The Referee described the content of the notice requirement in the following paragraphs:287. In broad terms, the intent and purpose of the basic requirements for a notice under section 79 are to be fair to the Municipality; the Municipality should be given a reasonable understanding of what part of the drainage works is the problem so the Municipality can understand what is being required of them. It is often clear, such as, the culvert in front of my farm is plugged with debris, please remove the debris, or there is a beaver dam backing up the drain at the back of Jack’s farm, please remove it. The examples of a beaver dam and blocked culvert are inspired by the Hud v West Nipissing case [2011 ONSC 6294] cited by the applicants.
288. Also, fairness to a municipality requires that the basis of any damages claim advanced under section 79 must relate to the notice given under section 79. If the notice references a beaver dam at the back of Jack’s farm, that notice would not support a claim for damages arising from a blocked culvert a concession removed from the beaver dam.
289. The notice needs to request that the drainage works be repaired. The notice may suggest how the repair should be carried out, but it does not need to specify how the municipality is to correct the condition of the drainage works identified in the notice…. [Emphasis added.] [29] In Hud v. West Nipissing, 2011 ONSC 6294, at para. 13, Ellies J. summarized the notice requirements under s. 79 as follows:To be sufficient under s. 79 of the Act, the notice given must identify the drain in question and request that the drain be repaired. It must also be precise enough to allow the Municipality to decide if the complaint is well-founded or frivolous. Section 79(2) also requires that the notice be sent to the "head" or the "clerk" of the Municipality. [30] The above articulation of the requirements of s. 79 summarizes the views expressed by the Court of Appeal for Ontario in Crawford v. Ellice (Township), [1899] O.J. No. 51 and McKim v. East Luther (Township), [1901] O.J. No. 24.
[31] Both Crawford and McKim involved the interpretation of s. 73 of the Municipal Drainage Act, R.S.O. 1897, c. 226, which required that “reasonable notice” be delivered. That provision stated:Any municipality neglecting or refusing to maintain any drainage work as aforesaid, upon reasonable notice in writing from any person or municipality interested therein, who or whose property is injuriously affected by the condition of the drainage work, shall be compellable, by mandamus, issued by the Referee or other court of competent jurisdiction to maintain the work, unless the notice is set aside or the work required thereby is varied as hereinafter provided and shall also be liable in pecuniary damages to any person or municipality who or whose property is injuriously affected by reasons of such neglect or refusal. [Emphasis added.] [32] In Crawford, Lister J.A. stated:24 It seems to me that what the statute requires is an unconditional notice or demand to repair under its provisions, given or made by a person interested in the drain, and who or whose property is injuriously affected by its condition.
25 The notice or demand ought to be for the performance of that which the plaintiff afterwards seeks to compel by mandamus; in short, it ought to be so clear and precise in its terms that the municipality might be able to ascertain whether the complaint was well founded or frivolous, and it ought to be a notice which the municipality would be justified in treating as a notice under section 73 for the purpose of an application to the referee under sub-sec. (a). ...
29 While I do not think that the notice to repair must be framed with technical precision, I do think that it must inform the municipality with reasonable particularity of what is complained of in the way of non-repair, and what the municipality is required to do in respect of the matter complained of. [Emphasis added.] [33] In McKim, Lister J.A. further stated:19 It is settled law that the notice thereby required to be given is essential in order to vest in the Referee power to exercise the jurisdiction which the statute confers on him to issue a mandamus. For the defendants it is said that no notice was given; while the plaintiff relies on a letter, dated the 29th of July 1898, and written by the plaintiff's solicitors to the defendants, as being a sufficient notice under sec. 73. That letter makes no reference to the condition of the repair of the drain. The complaint is that her lands had been injured, caused, in part, by water from the drain, constructed by the defendants, flooding them, and the demand therein made was, not that the defendants should repair the drain, but that they should construct and maintain a drainage work "required" to relieve her lands.
20 I do not think that letter can be treated as a notice under sec. 73.
21 Nor do I think that the defendants are precluded from objecting to the Referee's jurisdiction on that ground because they have, not pleaded want of notice.
22 The Referee's jurisdiction to issue a mandamus being special or limited, exercisable only upon the notice prescribed by sec. 73 being given before action, it was for the plaintiff, who was invoking that jurisdiction, to prove affirmatively that notice had been given. And clearly as affecting that jurisdiction it was open to the defendants to take advantage of the want of notice at any stage of the action. [Emphasis added.] [34] The notice requirement under the predecessor legislation has been strengthened to require that the notice describe “with reasonable certainty the alleged lack of maintenance and repair of the drainage works.” Thus, the principles described in McKim and Crawford are supplemented by this additional statutory requirement.
[35] In summary, notice under s. 79 of the Act must:(a) Be delivered to the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works.
(b) Describe with reasonable certainty the alleged lack of maintenance or repair of the drainage works, which by necessity must identify what part of the drainage works requires maintenance or repair.
(c) Demand maintenance or repair of the drainage works.
(d) Be so clear and precise in the particulars provided so that a municipality can ascertain whether the complaint is well-founded or frivolous. ....
[57] The plain language of s. 79, and the policy considerations expressed by the Referee at para. 269 of his reasons and in Cullerton justify an interpretation of s. 79 that a municipality is not liable for damages suffered by a landowner because of the condition of a drainage system until 45 days after the delivery of notice that the drainage system requires repair or maintenance.
[58] The Referee correctly found that s. 79 of the Act limits damages to those damages arising from physical injury or harm to property that occurred 45 days after notice of failure to repair or maintain the drainage system was given to the municipality. Given my finding on Issue #1, damages are recoverable after the expiry of 45 days following May 18, 2021.
[59] In summary,(a) Damages are recoverable under s. 79(1) of the Act if: (1) there is a causal connection between the condition of the drainage works that a municipality failed to repair or maintain, and the damages claimed; and (2) such damages, which may include economic losses, must flow from or arise out of some physical injury or harm to property.
(b) Damages are only recoverable to the extent that they were suffered 45 days after the delivery of notice under s. 79(1). ....
[76] Subsection 79(1) of the Act establishes a statutory right to compensation. When a person is affected by the condition of a drainage works arising from a municipality’s failure to maintain or repair that drainage works, then the “municipality is liable in damages to the owner whose property is so injuriously affected.”
[77] The Applicants submit that the phrase “injuriously affected” in s. 79 has no relationship to the legal principle of “injurious affection”. Instead, the Applicants submit that the phrase “injuriously affected” refers to the harm to a property attributable to the condition of a municipal drain that has not been maintained in good repair as specified in the applicable most recent engineer’s report. The Applicants’ view that a municipality is strictly liable for damages under s. 79 of the Act is supported by Ward v. Southwest Middlesex (Municipality), 2013 ONSC 4975, at paras. 134-135.
[78] The Municipality submits that:Property owners along the shoreline of Lake Erie have no actionable tort claim (nuisance, negligence, trespass) for damages against anyone for damage caused by Lake Erie flooding from rising water levels, storm surge and wave uprush or from the action of Lake ice or from erosion, all of which have been and are exacerbated by climate change. It is not the purpose of Section 79 to create an actionable claim for damages for injurious affection where no common law tort claim would otherwise exist but for the statutory authority of the Act; and section 79 of the Act should be interpreted accordingly. [79] The Municipality submits that “injuriously affected” has the same meaning as “injurious affection” as was the case in R. v. Loiselle, 1962 CanLII 72 (SCC), [1962] S.C.R. 624. In Loiselle, s. 18(3) of the St. Lawrence Seaway Authority Act, R.S.C. 1952, c. 242, required that the Authority “pay compensation for … lands injuriously affected by construction of works erected by it”. Like the Act, the St. Lawrence Seaway Authority Act does not define the phrase “injuriously affected”. However, the Supreme Court of Canada found that the following conditions are required to give rise to a claim for injurious affection to a property when no land is taken applied to determine when land was “injuriously affected”:(1) the damage must result from an act rendered lawful by statutory powers of the person performing such act;
(2) the damage must be such as would have been actionable under the common law, but for the statutory powers (the “Actionability Requirement);
(3) the damage must be an injury to the land itself and not a personal injury or an injury to business or trade; and
(4) the damage must be occasioned by the construction of the public work, not by its user. [80] A claim for injurious affection when no land is taken is meant to provide a remedy for a nuisance claim in tort that “would otherwise be barred by the common law defence of statutory authority because the alleged injury is an inevitable consequence of construction of a work authorized by statute and done without negligence”: see Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, at para. 29, aff’d 2012 ONCA 81; Wildtree Hotels v. Harrow London Borough Council [2000] 3 All ER 289, at p. 294 (H.L.).
[81] However, unlike the St. Lawrence Seaway Authority Act which establishes a right to compensation for damages arising from the construction of a seaway, liability under s. 79 of the Act is in respect of damages arising from the failure to maintain or repair a drainage works. As noted above, the defence of statutory authority only applies to damages occasioned by the construction of a public work and not by its user. The Actionability Requirement cannot be incorporated as one of the requirements for establishing a claim under s. 79 of the Act when all other requirements to establish a claim for injurious affection are not satisfied.
[82] The phrase “injuriously affected” is not used elsewhere in the Act. However, the phrase “injuriously affect” is used in s. 49 of the Act, which reads:Where the proposed drainage works is to be undertaken within a watershed in which a conservation authority has jurisdiction, the authority may appeal from the report of the engineer to the Tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under subsection 46 (2). [Emphasis added.] [83] As used in s. 49 of the Act, the phrase “injuriously affected” has no relationship to the law of injurious affection. This phrase should be interpreted consistently in the Act. In my view, having reference to the Concise Oxford dictionary definition of “injurious”, the phrase “injuriously affected” as used in s. 79(1) of the Act means to hurtfully impact.
[84] I conclude that the Referee did not err in finding that liability under s. 79 of the Act is strict. . Goetz et al. v. The Corp. of the Municipality of South Bruce
In Goetz et al. v. The Corp. of the Municipality of South Bruce (Div Court, 2022) the Divisional Court considers basics of the Drainage Act:The Statutory Framework
[7] The Act provides a comprehensive scheme for dealing with drainage of surface water and the allocation of costs to the landowners of the properties that receive benefit from the drainage works. A distinction is made between a new drainage works and an improvement to an existing drainage works.
New Drainage Works
[8] Drainage works may be initiated by the Director appointed under the Act if the drainage work is required for agricultural purposes, an engineer or road superintendent on behalf of municipality, the majority of owners of lands in the area, or the owners of lands representing 60% of the land in an area (“Petition Drains”)[2].
[9] In response to the petition, the Council of the municipality must decide whether to proceed. Where the municipality elects not to proceed with the drainage works there is a right of appeal to the Tribunal[3].
[10] If the municipality decides to proceed with the drainage works the Council shall, by by-law, appoint an engineer to examine the area requiring drainage and to prepare a report which is to include:(a) plans, profiles and specifications of the drainage works, including a description of the area requiring drainage;
(b) an estimate of the total cost thereof;
(c) an assessment of the amount or proportion of the cost of the works to be assessed against every parcel of land and road for benefit, outlet liability and injuring liability;
(d) allowances, if any, to be paid to the owners of land affected by the drainage works; and
(e) such other matters as are prescribed or provided for under this Act[4]. [11] There are several appeals that an affected landowner may take once the report is either adopted or rejected by the municipality.
[12] If dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of the Act any owner of land affected by the drainage works may appeal to the Referee[5].
[13] Another route of appeal is to the Tribunal where an owner of land is dissatisfied with the report of the engineer on the grounds that:(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed.[6] [14] An owner of land assessed for the drainage work may also appeal to the Court of Revision[7] on any of the following grounds:(a) any land or road has been assessed an amount that is too high or too low;
(b) any land or road that should have been assessed has not been assessed; or
(c) due consideration has not been given to the use being made of the land[8]. [15] A further appeal from the Court of Revision can be made to the Tribunal[9].
[16] Broad appeal powers are granted to the Referee who has original jurisdiction:(a) to entertain any appeal with respect to the report of the engineer under section 47;
(b) to determine the validity of, or to confirm, set aside or amend any petition, resolution of a council, provisional by-law or by-law relating to a drainage works under this Act or a predecessor of this Act;
(c) to determine claims and disputes arising under this Act, including, subject to section 120, claims for damages with respect to anything done or purporting to have been done under this Act or a predecessor of this Act or consequent thereon;
(d) to entertain applications for orders directing to be done anything required to be done under this Act;
(e) to entertain applications for orders restraining anything proposed or purporting to be done under this Act or a predecessor of this Act; and
(f) over any other matter or thing in relation to which application may be made to him or her under this Act[10]. [17] The Referee also has jurisdiction to hear appeals from the Tribunal[11]. The Referee may dispose of any interlocutory application within the Referee’s jurisdiction and that order is final[12]. The Referee may give directions relating to the conduct of proceedings before the Referee[13] . The Referee has power to determine all questions of fact or law necessary to determine any matter within the Referee’s jurisdiction[14]. The costs of any proceedings before the Referee are in the discretion of the Referee[15] and the Referee may also assess costs or direct an assessment.[16]
[18] A decision of the Referee may be appealed to the Divisional Court[17].
Improvement of Existing Drainage Works
[19] Improvement is defined as “any modification of or addition to a drainage works intended to increase the effectiveness of the system[18].”
[20] When the council of the municipality considers it appropriate to undertake a “major improvement project” “for the better use, maintenance or repair of the drainage works” the municipality may undertake and complete the project in accordance with report of an engineer without the petition required by s. 4[19].
[21] The major improvement projects are defined as:1. Changing the course of the drainage works.
2. Making a new outlet for the whole or any part of the drainage works.
3. Constructing a tile drain under the bed of the whole or any part of the drainage works.
4. Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.
5. Extending the drainage works to an outlet.
6. Covering all or part of the drainage works.
7. Consolidating two or more drainage works[20]. [22] The same proceedings and appeal rights applicable to new drains apply to improvements of existing drain works[21].
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