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Environment - Drainage

. 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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