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Drainage Act

R.S.O. 1990, CHAPTER D.17

Consolidation Period: From August 20, 2007 to the e-Laws currency date.

Last amendment: 2006, c. 35, Sched. C, s. 27.

SKIP TABLE OF CONTENTS

CONTENTS

Definitions

1.  In this Act,

“benefit” means the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures; (“avantage”)

“benefit cost statement” means a statement relating the anticipated benefits expressed in dollars to the total estimated cost of the drainage works; (“état coût-avantages”)

“built-up area” means an area of land where,

(a) not less than 50 per cent of the frontage upon one side of a road for a distance of not less than 200 metres is occupied by dwellings, buildings used for business purposes, schools or churches, or

(b) not less than 50 per cent of the frontage upon both sides of a road for a distance of not less than 100 metres is occupied by dwellings, buildings used for business purposes, schools or churches, or

(c) not more than 200 metres of a road separates any land described in clause (a) or (b) from any other land described in clause (a) or (b), or

(d) a plan of subdivision has been registered; (“agglomération”)

“commissioner” means a commissioner appointed by a municipality by by-law; (“commissaire”)

“conservation authority” means a conservation authority established under the Conservation Authorities Act; (“office de protection de la nature”)

“court of revision” means a court of revision constituted under this Act; (“tribunal de révision”)

“Director” means the Director appointed for the purposes of this Act; (“directeur”)

“drainage superintendent” means a drainage superintendent appointed by a municipality by by-law; (“directeur des installations de drainage”)

“drainage works” includes a drain constructed by any means, including the improving of a natural watercourse, and includes works necessary to regulate the water table or water level within or on any lands or to regulate the level of the waters of a drain, reservoir, lake or pond, and includes a dam, embankment, wall, protective works or any combination thereof; (“installations de drainage”)

“engineer” means an engineer registered under the Professional Engineers Act or a surveyor registered under the Surveyors Act, or a partnership, association of persons or corporation that holds a certificate of authorization under the Professional Engineers Act or the Surveyors Act, as the case may be; (“ingénieur”)

“improvement” means any modification of or addition to a drainage works intended to increase the effectiveness of the system; (“amélioration”)

“initiating municipality” means the local municipality undertaking the construction, improvement, repair or maintenance of a drainage works to which this Act applies; (“municipalité initiatrice”)

“injuring liability” means the part of the cost of the construction, improvement, maintenance or repair of a drainage works required to relieve the owners of any land or road from liability for injury caused by water artificially made to flow from such land or road upon any other land or road; (“responsabilité des dommages”)

“lateral drain” means a drain that is designed for the drainage of one property and that begins and ends on the same property; (“drain latéral”)

“maintenance” means the preservation of a drainage works; (“entretien”)

“Minister” means the Minister of Agriculture and Food; (“ministre”)

“outlet liability” means the part of the cost of the construction, improvement or maintenance of a drainage works that is required to provide such outlet or improved outlet; (“responsabilité de la sortie”)

“owner” includes a guardian of property and a guardian, executor, administrator or trustee in whom land is vested; (“propriétaire”)

“preliminary report” means an engineer’s report containing the information specified in section 10; (“rapport préliminaire”)

“property” means a parcel of land that by the Assessment Act is required to be separately assessed; (“propriété”)

“public utility” means a person having jurisdiction over any water works, gas works, electric heat, light and power works, telegraph and telephone lines, railways however operated, street railways and works for the transmission of gas, oil, water or electrical power or energy, or any similar works supplying the general public with necessaries or conveniences; (“services publics”)

“referee” means the referee appointed under this Act; (“arbitre”)

“repair” means the restoration of a drainage works to its original condition; (“réparation”)

“report” means an engineer’s report containing the information specified in section 8; (“rapport”)

“road authority” means a body having jurisdiction and control of a common and public highway or road, or any part thereof, including a street, bridge and any other structure incidental thereto and any part thereof; (“office de la voirie”)

“special benefit” means any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works; (“avantage particulier”)

“sufficient outlet” means a point at which water can be discharged safely so that it will do no damage to lands or roads; (“sortie appropriée”)

“Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal continued under the Ministry of Agriculture, Food and Rural Affairs Act. (“Tribunal”) R.S.O. 1990, c. D.17, s. 1; 1992, c. 32, s. 8; 1999, c. 12, Sched. A, s. 9 (1); 2002, c. 17, Sched. F, Table.

Mutual Agreement Drains

Mutual agreement re drainage works

2.  (1)  When two or more owners of land desire to construct or improve a drainage works on any of their lands and are willing to pay the cost thereof, they may enter into a written agreement for the construction, improvement, financing and maintenance of such drainage works, which shall include the following:

1. A reference to the Drainage Act.

2. Descriptions of the lands of the parties to the agreement sufficient for the purposes of registration in the proper land registry office.

3. The estimated cost of the drainage works.

4. A description of the drainage works, including its nature and approximate location.

5. The proportion of the cost of the construction, improvement and maintenance of the drainage works that is to be borne by each of the owners of the lands.

6. The date the agreement was entered into.

7. An affidavit of a subscribing witness to the execution of the agreement by the parties sufficient for the purposes of registration in the proper land registry office. R.S.O. 1990, c. D.17, s. 2 (1).

Filing of agreement

(2)  A copy of the agreement and the plans and schedules, if any, of the proposed drainage works may be filed with the clerk of the local municipality in which the land or any part thereof is situate, and the agreement or an executed copy thereof may be registered in the proper land registry office. R.S.O. 1990, c. D.17, s. 2 (2).

Registered agreement binding on successors

(3)  An agreement made under this section shall, upon registration in the proper land registry office of the agreement or an executed copy thereof, be binding upon the heirs, executors, administrators, successors and assigns of each party to the agreement. R.S.O. 1990, c. D.17, s. 2 (3).

Exception

(4)  The subsequent provisions of this Act do not apply to any drainage works constructed under this section. R.S.O. 1990, c. D.17, s. 2 (4).

Requisition Drains

Drainage works constructed on requisition

3.  (1)  Where it is necessary, for the proper drainage of any lands, that a drainage works should be constructed thereon or constructed thereon and through the land of one or more adjacent owners, the owner of the land requiring or to be benefited by such drainage may file with the clerk of the local municipality in which the land is situate a requisition in the form prescribed by the regulations requesting that an engineer be appointed. R.S.O. 1990, c. D.17, s. 3 (1).

Deposit for expenses

(2)  Upon filing the requisition, the owner shall deposit with the clerk of the municipality the sum of $300 to be used toward defraying the expenses incurred consequent thereon, which sum shall be taken into consideration by the engineer in apportioning costs. R.S.O. 1990, c. D.17, s. 3 (2).

Limit of cost

(3)  No drainage works, the total estimated cost of which will exceed $7,500, shall be constructed under this section. R.S.O. 1990, c. D.17, s. 3 (3).

Cost not included

(4)  For the purposes of calculating the total estimated cost in subsection (3), the cost of crossing lands occupied by the works of a public utility or road authority shall not be included. R.S.O. 1990, c. D.17, s. 3 (4).

Limit of area to be assessed

(5)  Only lands lying within 750 metres from the sides of the drainage works and land lying within 750 metres from the upstream point of commencement of the drainage works may be assessed under this section. R.S.O. 1990, c. D.17, s. 3 (5).

Duty of council

(6)  The council of the local municipality, upon the filing of the requisition, shall by by-law or resolution appoint an engineer to make an examination of the area and to make a preliminary report. R.S.O. 1990, c. D.17, s. 3 (6).

Notice of examination

(7)  The engineer shall, before making an examination and report, cause the clerk of the local municipality to send to each owner of land and to each public utility that may be affected by such drainage works as set out in the requisition at least seven days written notice in the form prescribed by the regulations by prepaid mail, addressed to each such owner at the owner’s address as shown by the last revised assessment roll, of the date, time and place of an on-site meeting with the engineer to examine the area. R.S.O. 1990, c. D.17, s. 3 (7).

Statements

(8)  The engineer shall file with the preliminary report a benefit cost statement and a statement of the anticipated effects of the drainage works on the local environment. R.S.O. 1990, c. D.17, s. 3 (8).

Engineer to set out requirements

(9)  The engineer in the preliminary report shall set out the requirements for a petition sufficient to comply with section 4. R.S.O. 1990, c. D.17, s. 3 (9).

Duty of council

(10)  Upon the filing of the engineer’s preliminary report, the council of the local municipality shall cause the clerk to send by prepaid mail to each owner of lands to be affected by the drainage works as set out in the requisition and to the Minister, a notice stating the name or other designation of the drainage works and the date of the council meeting at which the preliminary report will be considered. R.S.O. 1990, c. D.17, s. 3 (10).

Copy of report, etc.

(11)  A copy of the preliminary report, the benefit cost statement and the statement of the anticipated effect on the local environment must accompany each notice sent under subsection (10). R.S.O. 1990, c. D.17, s. 3 (11).

Duty of clerk

(12)  Unless the owner who filed the requisition files with the clerk of the local municipality a petition sufficient to comply with section 4 within sixty days of the meeting at which the report was considered, the clerk shall send, by prepaid mail, to such owner, notice that unless the requisition is withdrawn or a petition is filed within thirty days from the date the notice was sent, the council of the local municipality shall instruct the engineer to prepare a report. R.S.O. 1990, c. D.17, s. 3 (12).

Power of council

(13)  Where a petition sufficient to comply with section 4 is filed within the time limits prescribed by subsection (12), the council of the local municipality shall proceed in the manner prescribed for a petition under section 4. R.S.O. 1990, c. D.17, s. 3 (13).

Duty of council

(14)  Unless the requisition is withdrawn or a petition is filed with the council of the local municipality within the time limits prescribed by subsection (12), the council by by-law or resolution shall instruct the engineer to prepare a report. R.S.O. 1990, c. D.17, s. 3 (14).

Idem

(15)  Despite any other provision of this Act, upon the filing of the report, unless the requisition is withdrawn, the council of the local municipality shall, subject to any appeal that may be taken, adopt the report and proceed to implement it in accordance with this Act. R.S.O. 1990, c. D.17, s. 3 (15).

Appeals

(16)  Upon the filing of a report, an appeal lies therefrom to the Tribunal and as nearly as may be possible in the same manner and on the same grounds as in the case of a report for the construction of a drainage works commenced by petition under section 4. R.S.O. 1990, c. D.17, s. 3 (16); 2006, c. 19, Sched. A, s. 6 (1).

Collection of expenses

(17)  Where the requisition is withdrawn or the drainage works is not proceeded with under requisition as a result of an appeal, the owner who filed the requisition is chargeable with and liable to the municipality for the expenses incurred by the municipality in connection with the requisition, and the sum with which such owner is chargeable shall be entered upon the collector’s roll for the municipality against the lands of the owner, and shall be collected in the same manner as real property taxes. R.S.O. 1990, c. D.17, s. 3 (17).

Existing ditches

(18)  Every ditch constructed under The Ditches and Watercourses Act, being chapter 109 of the Revised Statutes of Ontario, 1960, shall be maintained in accordance with the award of the engineer providing for such maintenance until such ditch is brought under the provisions of this Act by requisition in the manner prescribed by subsection (1) or by petition as set out in section 4. R.S.O. 1990, c. D.17, s. 3 (18).

Petition Drains

Petition

4.  (1)  A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,

(a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;

(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;

(c) where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 (5);

(d) where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).

Form of petition

(2)  A petition under subsection (1) shall be in the form prescribed by the regulations and, where it is filed by an owner or owners under clause (1) (a) or (b), shall be signed by such owner or owners. R.S.O. 1990, c. D.17, s. 4 (2).

Petition where area lies on each side of boundary line

(3)  Where it is desired to construct a drainage works for the drainage of an area composed of lands or roads lying on each side of a boundary line between two or more local municipalities, the council of any of them may proceed upon a petition as required by this Act in all respects, including the sending of notices, as if such area were entirely within the limits of the municipality. R.S.O. 1990, c. D.17, s. 4 (3).

Person deemed owner

(4)  Where a person who is the owner of land, but does not appear by the last revised assessment roll of the municipality to be the owner, is a petitioner, the person shall be deemed an owner if the person’s ownership is proved to the satisfaction of the clerk, and, if the person who appears by the assessment roll to be the owner is a petitioner, the person’s name shall be disregarded in determining the sufficiency of the petition. R.S.O. 1990, c. D.17, s. 4 (4).

Persons jointly assessed

(5)  Where two or more persons are jointly assessed for a property, in determining the sufficiency of a petition, they shall be deemed to be one owner. R.S.O. 1990, c. D.17, s. 4 (5).

Drainage works constructed on petition

5.  (1)  Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,

(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or

(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources. R.S.O. 1990, c. D.17, s. 5 (1).

Appeal to Tribunal

(2)  Where a petitioner,

(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or

(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council,

the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2); 2006, c. 19, Sched. A, s. 6 (1).

Notice that environmental appraisal is required

6.  (1)  Upon receipt of a notice from the initiating municipality under subsection 5 (1), a local municipality, conservation authority or the Minister of Natural Resources, as the case may be, may send to the council of the initiating municipality within thirty days a notice that an environmental appraisal of the effects of the drainage works on the area is required, and the cost thereof shall be paid by the party who requested it. R.S.O. 1990, c. D.17, s. 6 (1).

Authorization for environmental appraisal

(2)  The council of the initiating municipality may obtain an environmental appraisal on its own initiative, the cost of which shall be paid by the municipality from its general funds. R.S.O. 1990, c. D.17, s. 6 (2).

Appeal

(3)  The party requesting the environmental appraisal or the council of the initiating municipality, as the case may be, within forty days of receiving the account therefor, may appeal to the Tribunal, and the Tribunal may confirm or vary the account as it considers proper. R.S.O. 1990, c. D.17, s. 6 (3); 2006, c. 19, Sched. A, s. 6 (2).

Benefit cost statement

7.  (1)  The council of any local municipality to which notice was given under subsection 5 (1) or the Minister may send to the council of the initiating municipality within thirty days a notice that a benefit cost statement is required and the cost of preparing such statement shall be paid by the party who required it. R.S.O. 1990, c. D.17, s. 7 (1).

Idem

(2)  The council of the initiating municipality may obtain a benefit cost statement on its own initiative, the cost of which shall be paid by the municipality from its general funds. R.S.O. 1990, c. D.17, s. 7 (2).

Appointment of engineer

8.  (1)  Where the council of the initiating municipality has decided to proceed with the drainage works described in a petition, the council shall by by-law or resolution appoint an engineer to make an examination of the area requiring drainage as described in the petition and to prepare a report which shall 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 provided for under this Act. R.S.O. 1990, c. D.17, s. 8 (1).

Where engineer is a corporation, etc.

(2)  Where the engineer appointed under this Act is a corporation, association or partnership, the appointee shall, within ten days of the date of appointment, notify the council of the name of the individual engineer who will have charge of the project and who will remain in charge until the report is filed and if for any reason the designated engineer ceases to be employed by the appointee, the appointee shall within ten days of such time notify the council of the name of his or her replacement. R.S.O. 1990, c. D.17, s. 8 (2).

Appeal or referral to Tribunal

(3)  Where the council fails to appoint an engineer within sixty days after giving notice of its decision to proceed, any petitioner may appeal to the Tribunal or, where the petition was signed by the Director or where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal, and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 8 (3); 2006, c. 19, Sched. A, s. 6 (1).

One report on two or more petitions

(4)  The council of the initiating municipality may instruct the engineer to make one report with respect to two or more petitions requiring drainage in two or more adjoining areas that require drainage. R.S.O. 1990, c. D.17, s. 8 (4).

Determination of petition compliance

9.  (1)  The engineer shall, before making an examination and report, cause the clerk of the local municipality to send at least seven days written notice in the form prescribed by the regulations to each owner of lands within the area requiring drainage as described in the petition and to each public utility that may be affected by the petition setting out the time and place of an on-site meeting with the engineer to examine the area. R.S.O. 1990, c. D.17, s. 9 (1).

Duty of engineer

(2)  At the on-site meeting, the engineer shall,

(a) determine the area requiring drainage;

(b) determine whether the petition complies with section 4 for the area requiring drainage; and

(c) where the engineer is of opinion that the petition fails to so comply, establish the requirements for a petition to comply with section 4. R.S.O. 1990, c. D.17, s. 9 (2).

Idem

(3)  Where the engineer is of opinion that the petition complies with section 4, the engineer shall proceed to prepare a report or a preliminary report, as the case may be. R.S.O. 1990, c. D.17, s. 9 (3).

Report of engineer

(4)  Where the engineer is of opinion that the petition does not comply with section 4, the engineer shall so report to the council of the initiating municipality stating wherein the petition is deficient, the amount of the engineer’s fees and by whom they shall be paid, and the council shall forthwith send a copy of such opinion to each petitioner. R.S.O. 1990, c. D.17, s. 9 (4).

Fees to form part of costs

(5)  Where, within sixty days of the engineer’s reporting to council under subsection (4), a petition that complies with the requirements of section 4 is filed with the clerk of the council,

(a) the council shall instruct the engineer to prepare a report, or a preliminary report, as the case may be; and

(b) the fees mentioned in subsection (4) shall form part of the cost of the drainage works. R.S.O. 1990, c. D.17, s. 9 (5).

Preliminary report

10.  (1)  Where the council of the initiating municipality deems it expedient, it may, or if it has received notice under section 6 that an environmental appraisal is required, it shall instruct the engineer to prepare a preliminary report containing a sketched plan of the drainage works and an estimate of the cost thereof in so far as it is practicable to do so, and which shall include the environmental appraisal, if any, and the benefit cost statement, if any, and the engineer shall forthwith prepare and file such a preliminary report with the council. R.S.O. 1990, c. D.17, s. 10 (1).

Consideration of report

(2)  Upon the filing of the preliminary report, the council of the initiating municipality shall cause the clerk to send a copy of the preliminary report and a notice of the date of the council meeting at which the preliminary report will be considered, to,

(a) every owner of land within the area requiring drainage as determined by the engineer or described in the petition, as the case may be;

(b) any public utility or road authority that may be affected by the drainage works;

(c) any local municipality and conservation authority entitled to notice under section 5 or, if no authority is entitled to notice, to the Minister of Natural Resources; and

(d) the Minister. R.S.O. 1990, c. D.17, s. 10 (2).

Withdrawal from and additions to petition

(3)  At the meeting referred to in subsection (2), the council shall consider the preliminary report and shall give to any person who signed the petition an opportunity to withdraw from it by putting a withdrawal in writing, signing it and filing it with the clerk, and to any person present who owns land in the area requiring drainage and has not signed the petition an opportunity to do so. R.S.O. 1990, c. D.17, s. 10 (3).

Cost of petition and preliminary report

(4)  If at the end of the meeting the petition does not contain a sufficient number of names to comply with section 4, the original petitioners are chargeable in equal shares with and liable to the municipality for the expenses incurred by the municipality in connection with the petition and preliminary report, excluding the amount of any grants and the costs of any environmental appraisal or benefit cost statement, and the sum with which each of such petitioners is chargeable shall be entered upon the collector’s roll for the municipality against the lands of the person liable and shall be collected in the same manner as real property taxes. R.S.O. 1990, c. D.17, s. 10 (4).

Instruction to engineer

(5)  If at the end of the meeting, the petition contains a sufficient number of names to comply with section 4, the council may instruct the engineer to proceed with the preparation of a report. R.S.O. 1990, c. D.17, s. 10 (5).

Appeal to Tribunal

(6)  Where the council of the initiating municipality fails to instruct the engineer to proceed with the preparation of a report, any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 10 (6); 2006, c. 19, Sched. A, s. 6 (3).

Idem

(7)  Where any party mentioned in clause (2) (a), (b) or (c) is dissatisfied with the environmental appraisal, an appeal lies to the Tribunal. R.S.O. 1990, c. D.17, s. 10 (7); 2006, c. 19, Sched. A, s. 6 (1).

Referral to Tribunal

(8)  Where,

(a) lands used for agricultural purposes are included in the area to be drained, the Minister; or

(b) a conservation authority or regional office of the Ministry of Natural Resources reports to the Minister of Natural Resources that the environmental appraisal is unsatisfactory, the Minister of Natural Resources,

may refer the environmental appraisal to the Tribunal. R.S.O. 1990, c. D.17, s. 10 (8); 2006, c. 19, Sched. A, s. 6 (1).

Powers of Tribunal

(9)  An appeal under subsection (7) or a reference under subsection (8) shall be made within forty days after the meeting referred to in subsection (2), and the Tribunal may confirm the environmental appraisal or direct that it be reconsidered in such respects as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 10 (9); 2006, c. 19, Sched. A, s. 6 (1).

Engineer’s Report

Duties of engineer

11.  The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon. R.S.O. 1990, c. D.17, s. 11.

Power to enter on lands

12.  (1)  The engineer or any of the engineer’s assistants when engaged in the performance of their duties during or after the examination of the locality may enter, measure along, ascertain the bearings of any line, plant the stakes that they consider necessary for the performance of the work and take levels on the land of any person. R.S.O. 1990, c. D.17, s. 12 (1).

Offence, obstruction of engineer

(2)  Every person who wilfully interferes with or obstructs the engineer or any of the engineer’s assistants in the exercise of the powers conferred by this section is guilty of an offence and on conviction is liable to a fine of not more than $1,000. R.S.O. 1990, c. D.17, s. 12 (2).

Duties re survey

13.  (1)  The engineer in making a survey shall establish sufficient bench marks or permanent levels by which a drainage works may be governed, and shall in the report record the description, location and elevation of every bench mark or permanent level. R.S.O. 1990, c. D.17, s. 13 (1).

Offence, interference with bench marks

(2)  Every person who interferes with, removes or destroys any bench mark or permanent level established under this section is guilty of an offence and on conviction is liable to a fine of not more than $1,000. R.S.O. 1990, c. D.17, s. 13 (2).

Providing capacity for covered drainage works

14.  (1)  Subject to subsection (2), the construction of a drainage works by means of the improvement of a natural watercourse shall not include a covered drainage works, unless the part of the drainage works in which the covered drainage works is included provides capacity for all the surface water from the lands and roads draining naturally towards and into it and for all the waters from all the lands and roads assessed for the drainage works. R.S.O. 1990, c. D.17, s. 14 (1).

Covered drainage works may be employed

(2)  A covered drainage works may be employed in conjunction with an open drain provided that the total capacity of the system is sufficient for the purposes of subsection (1). R.S.O. 1990, c. D.17, s. 14 (2).

Sufficient outlet

15.  Subject to section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet. R.S.O. 1990, c. D.17, s. 15.

Report re disposal of material taken from drainage works

16.  The engineer in the report shall determine in what manner the material taken from any drainage works in the construction, improvement, repair or maintenance thereof shall be disposed of. R.S.O. 1990, c. D.17, s. 16.

Bridges and culverts on roads

17.  The engineer in the report shall provide for the construction, enlargement or other improvement of any bridges or culverts throughout the course of the drainage works rendered necessary by the drainage works crossing any public road or part thereof. R.S.O. 1990, c. D.17, s. 17.

Construction of bridges, etc.

18.  Subject to section 33, the engineer in the report shall provide for the construction or the replacement, enlargement or other improvement of bridges, culverts, pumping stations and water gates rendered necessary by the drainage works including the cost of the construction or the replacement, enlargement or other improvement of the bridges, pumping stations, water gates and culverts, in the assessment for the construction, improvement, maintenance or repair of the drainage works, and they shall, for the purposes of maintenance or repair, be deemed part of the drainage works. R.S.O. 1990, c. D.17, s. 18.

Engineer may recommend abandonment of drain

19.  The engineer in the report may recommend the abandonment of any drain or part thereof that is no longer useful or that is being supplanted by a new drainage works. R.S.O. 1990, c. D.17, s. 19.

Continuing drainage works beyond limits of municipality

20.  (1)  Where it is considered necessary to continue a drainage works beyond the limits of the initiating municipality, the engineer employed by the council of the municipality may continue the drainage works on or along or across any road allowance or other boundary between any two or more municipalities, and from any such road allowance or other boundary into or through any municipality until the engineer reaches a sufficient outlet. R.S.O. 1990, c. D.17, s. 20 (1).

Where drainage works not deemed outside initiating municipality

(2)  A drainage works shall not be deemed to be continued into a municipality other than the initiating municipality merely by reason of such drainage works or some part thereof being constructed on a road allowance forming the boundary line between two or more municipalities. R.S.O. 1990, c. D.17, s. 20 (2).

Assessments

Engineer to distinguish assessments

21.  The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefor. R.S.O. 1990, c. D.17, s. 21.

Assessment for benefit

22.  Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit. R.S.O. 1990, c. D.17, s. 22.

Assessment for liability

Outlet liability

23.  (1)  Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability. R.S.O. 1990, c. D.17, s. 23 (1).

Injuring liability

(2)  If, from any land or road, water is artificially caused by any means to flow upon and injure any other land or road, the land or road from which the water is caused to flow may be assessed for injuring liability with respect to a drainage works to relieve the injury so caused to such other land or road. R.S.O. 1990, c. D.17, s. 23 (2).

Basis of assessment

(3)  The assessment for outlet liability and injuring liability provided for in subsections (1) and (2) shall be based upon the volume and rate of flow of the water artificially caused to flow upon the injured land or road or into the drainage works from the lands and roads liable for such assessments. R.S.O. 1990, c. D.17, s. 23 (3).

Certain owners not to count for or against petition

(4)  The owners of the lands and roads made liable to assessment only under subsection (1) or (2) shall neither count for nor against the petition required by section 4 unless within the area therein described. R.S.O. 1990, c. D.17, s. 23 (4).

Assessment for special benefit

24.  The engineer may assess for special benefit any lands for which special benefits have been provided by the drainage works. R.S.O. 1990, c. D.17, s. 24.

Engineer may assess a block, etc.

25.  (1)  The council of the local municipality may direct the engineer to assess as a block, a built-up area designated by the council, and the sum assessed therefor may be levied against all the rateable properties in the designated area proportionately on the basis of the assessed value of the land and buildings. R.S.O. 1990, c. D.17, s. 25 (1).

Assessment to be charged against public roads

(2)  Where the engineer makes a block assessment under subsection (1), the engineer shall designate the proportion of the assessment to be charged against the public roads in the designated area. R.S.O. 1990, c. D.17, s. 25 (2).

Increased cost, how borne

26.  In addition to all other sums lawfully assessed against the property of a public utility or road authority under this Act, and despite the fact that the public utility or road authority is not otherwise assessable under this Act, the public utility or road authority shall be assessed for and shall pay all the increase of cost of such drainage works caused by the existence of the works of the public utility or road authority. R.S.O. 1990, c. D.17, s. 26.

Assessment where drainage works continued beyond limits of municipality

27.  Where a drainage works is continued into or through a municipality other than the initiating municipality under section 20, the engineer may assess, regardless of municipal boundaries, all lands and roads that, in the engineer’s opinion, should be assessed for benefit, outlet liability or injuring liability, with such proportion of the cost of the drainage works as appears just, and in the report thereon the engineer shall estimate separately the cost of the drainage works within each municipality and upon the road allowances or other boundaries. R.S.O. 1990, c. D.17, s. 27.

Assessing lands in neighbouring municipality

28.  Where any lands or roads in or under the jurisdiction of a local municipality, other than the local municipalities into or through which the drainage works passes, are, in the opinion of the engineer of the initiating or other municipality doing the work or part thereof, benefited by the drainage works or provided with an improved outlet or relieved from injuring liability, the engineer may assess the cost of the construction, improvement, maintenance or repair of the drainage works in the same manner as is provided in section 27. R.S.O. 1990, c. D.17, s. 28.

Allowances and Compensation

Allowances for right of way, etc.

29.  The engineer in the report shall estimate and allow in money to the owner of any land that it is necessary to use,

(a) for the construction or improvement of a drainage works;

(b) for the disposal of material removed from drainage works;

(c) as a site for a pumping station to be used in connection with a drainage works; or

(d) as a means of access to any such pumping station, if, in the opinion of the engineer, such right of way is sufficient for the purposes of the drainage works,

the value of any such land or the damages, if any, thereto, and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 29.

Amount for damage to ornamental trees, etc.

30.  The engineer shall determine the amount to be paid to persons entitled thereto for damage, if any, to ornamental trees, lawns, fences, lands and crops occasioned by the disposal of material removed from a drainage works and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 30.

Allowance for existing drains

31.  Where an existing drain that was not constructed on requisition or petition under this Act or any predecessor of this Act is incorporated in whole or in part in a drainage works, the engineer in the report shall estimate and allow in money to the owner of such drain or part the value to the drainage works of such drain or part and shall include such sum in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 31.

Allowance for damage due to insufficient outlet

32.  Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low-lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low-lying lands in respect of such injuries. R.S.O. 1990, c. D.17, s. 32.

Allowance for loss of access

33.  Where the engineer thinks it expedient to make an allowance for loss of access to an owner instead of providing for the construction or the replacement, enlargement or other improvement of a bridge, the engineer shall in the report provide for payment to the owner of such amount as appears just by way of allowance for loss of access and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 33.

Prior assessments to be taken into consideration

34.  In fixing the sum to be assessed upon any land or road, the engineer may take into consideration any prior assessment or allowance on the same land or road for the construction, improvement, maintenance or repair of a drainage works and make such adjustment therefor as appears just, and in the report the engineer shall state the adjustment so made. R.S.O. 1990, c. D.17, s. 34.

Assessment may be shown in money

35.  The assessment upon any land or road for a drainage works shall be shown by the engineer placing in a schedule to the report sums of money opposite the land or road, and, where the engineer considers it advisable, the fractional part of the whole cost to be borne by the land or road. R.S.O. 1990, c. D.17, s. 35.

Assessment of affected land

36.  The engineer, in assessing the lands and roads requiring drainage or otherwise liable for assessment under this Act, shall show in the report the approximate number of hectares affected by the drainage works in each parcel of land assessed for the drainage works. R.S.O. 1990, c. D.17, s. 36.

Engineer to assess separately

37.  The engineer in the report shall list separately the lands in each municipality that are assessed for a drainage works and shall indicate the assessment for the cost of lateral drains and the assessments of lands that are not agricultural lands. R.S.O. 1990, c. D.17, s. 37.

Variation in assessments for maintenance and repair

38.  Where the engineer considers it equitable that the cost of the maintenance and repair of a drainage works be assessed upon a basis different from that upon which the cost of its construction or improvement is assessed, the engineer shall determine and report the basis upon which the cost of maintenance and repair of the drainage works or of any part or parts thereof shall be assessed. R.S.O. 1990, c. D.17, s. 38.

Time for filing report

39.  (1)  The engineer shall file the report with the clerk of the initiating municipality as soon as it is completed or in any event within six months after the appointment of the engineer or within such further time as may be extended before or after the expiry of such six-month period by the council of the municipality by resolution. R.S.O. 1990, c. D.17, s. 39 (1).

Engineer may forfeit compensation

(2)  Where, after thirty days notice by council, the engineer neglects to make a report within the time limited by or extended under this section, the engineer shall forfeit all claims for compensation for the work done upon the drainage works, and the council of the local municipality may appoint another engineer. R.S.O. 1990, c. D.17, s. 39 (2).

By-law not invalid by reason report not filed

(3)  A by-law passed by the council of any local municipality for the construction of a drainage works under this Act shall not be quashed by reason only that the report of the engineer was not filed within the time limited by or extended under this section. R.S.O. 1990, c. D.17, s. 39 (3).

Engineer’s finding, drainage works not required, etc.

40.  Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer’s fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report, by prepaid mail, to all persons who signed the petition or requisition, as the case may be, and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal. R.S.O. 1990, c. D.17, s. 40.

Notice of drainage works

41.  (1)  Upon the filing of the engineer’s report, the council of the initiating municipality, if it intends to proceed with the drainage works, shall, within thirty days of the filing of the report, cause the clerk of the initiating municipality to send a copy of the report and a notice by prepaid mail stating,

(a) the date of the filing of the report;

(b) the name or other designation of the drainage works; and

(c) the date of the council meeting at which the report will be considered,

to,

(d) the owners, in the initiating municipality, as shown by the last revised assessment roll to be the owners of lands and roads assessed for the drainage works or for which compensation or other allowances have been provided in the report;

(e) the clerk of every other local municipality in which any land or road that is assessed for the drainage works or for which compensation or other allowances have been provided in the report is situate;

(f) the secretary-treasurer of each conservation authority that has jurisdiction over any land affected by the report;

(g) any railway company, public utility or road authority affected by the report, other than by way of assessment;

(h) the Minister of Natural Resources where land under his or her jurisdiction may be affected by the report; and

(i) the Director. R.S.O. 1990, c. D.17, s. 41 (1).

Clerk to notify persons assessed

(2)  The clerk of every other local municipality in which any land or road that is assessed for the drainage works or for which compensation or other allowances have been provided in the report is situate shall send within thirty days of the sending of the last notice under subsection (1) a copy of the report and notice by prepaid mail to the owners, as shown by the last revised assessment roll to be the owners of the lands and roads in such municipality assessed for the drainage works, or for which compensation or other allowance has been provided in the report stating,

(a) the date of the filing of the report;

(b) the name or other designation of the drainage works; and

(c) the date of the council meeting of the initiating municipality at which the report will be considered. R.S.O. 1990, c. D.17, s. 41 (2).

Copy of report not required

(3)  Despite subsections (1) and (2), where a block assessment is made, the notice to the owners of the lands so assessed need not be accompanied by a copy of the report. R.S.O. 1990, c. D.17, s. 41 (3).

Same

(3.1)  Despite subsections (1) and (2), the council of a local municipality is not required to send a copy of the report to owners of lands and roads assessed for a sum of less than $100. 1998, c. 18, Sched. A, s. 1 (1).

Council meeting for consideration of report

(4)  The date of the council meeting at which the report will be considered shall not be less than ten days after the last notice has been mailed under subsections (1) and (2). R.S.O. 1990, c. D.17, s. 41 (4).

By-law not to be quashed

(5)  A by-law passed by the council of any local municipality in connection with the construction of a drainage works under this Act shall not be quashed by reason only that any notices required under this section were not sent within the specified time limits. R.S.O. 1990, c. D.17, s. 41 (5).

Consideration of report

42.  The council of the initiating municipality at the meeting mentioned in section 41 shall consider the report, and, where the drainage works is requested on petition, shall give an opportunity to any person who has signed the petition to withdraw from it by putting a withdrawal in writing, signing it and filing it with the clerk, and shall also give those present owning lands within the area requiring drainage who have not signed the petition an opportunity to do so, and should any of the lands or roads owned by the municipality within the area requiring drainage as described in the petition be assessed, the council may by resolution authorize the head of the municipality to sign the petition for the municipality, and such signature counts as that of one person in favour of the petition. R.S.O. 1990, c. D.17, s. 42.

Liability of original petitioners

43.  If, after striking out the names of the persons withdrawing, the names remaining on the petition, including the names, if any, added as provided by section 42 do not comply with section 4, the original petitioners on their respective assessments in the report are chargeable proportionately with and liable to the municipality for the expenses incurred by the municipality in connection with the petition and report and the sum with which each of such petitioners is chargeable shall be entered upon the collector’s roll for the municipality against the lands of the person liable, and shall be collected in the same manner as real property taxes. R.S.O. 1990, c. D.17, s. 43.

Sufficiency of petition

44.  If, at the end of such council meeting, the petition contains a sufficient number of names to comply with section 4, the council may proceed to adopt the report, and, subject to section 59, no person having signed the petition shall, after the adoption of the report, be permitted to withdraw. R.S.O. 1990, c. D.17, s. 44.

Adoption of report

45.  (1)  A report may be adopted by by-law in the form prescribed by the regulations and, when such by-law is given two readings by council, the report shall be deemed to be adopted and the by-law shall be known as a provisional by-law. R.S.O. 1990, c. D.17, s. 45 (1).

Appeal or referral to Tribunal

(2)  Where a report is not adopted by council, any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal. R.S.O. 1990, c. D.17, s. 45 (2); 2006, c. 19, Sched. A, s. 6 (1).

Notice of court of revision to be sent to local municipalities and to owners

46.  (1)  The council of the initiating municipality shall, within five days after the adoption of the report, send a copy of the provisional by-law, exclusive of the engineer’s report, and a notice of the time and place of the first sitting of the court of revision by prepaid mail to every other local municipality in which any land or road is assessed for the drainage works or for which allowance or compensation has been provided for in the report. R.S.O. 1990, c. D.17, s. 46 (1).

Idem

(2)  The council of the initiating municipality and of every local municipality to whom a copy of the provisional by-law is sent under subsection (1) shall, within thirty days after the adoption of the report, send a copy of the provisional by-law, exclusive of the engineer’s report, and a notice of the time and place of the sitting of the court of revision by prepaid mail to each person or body entitled to notice under section 41 and the notice shall inform each owner that the owner may appeal the owner’s assessment to the court of revision by a notice given to the clerk of the initiating municipality not later than ten days prior to the first sitting of the court of revision. R.S.O. 1990, c. D.17, s. 46 (2).

Sittings of court

(3)  The first sitting of the court of revision shall be held on a day not earlier than twenty nor later than thirty days from the date of completing the mailing of the copies of the provisional by-law under subsection (2). R.S.O. 1990, c. D.17, s. 46 (3).

Appeals

Appeal from report to referee

47.  (1)  Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a written notice of appeal shall be served upon the council of the initiating municipality within forty days after the mailing of the notices under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 47 (1).

Notice to court clerk

(2)  Upon receipt of a notice of appeal under subsection (1), the clerk of the municipality shall forthwith record the notice and send a copy of the notice to the clerk of the court of the referee. R.S.O. 1990, c. D.17, s. 47 (2).

Appeal to Tribunal

48.  (1)  Any owner of land or any public utility affected by a drainage works, if 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 under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1); 2006, c. 19, Sched. A, s. 6 (1).

Appeal by Director

(2)  Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, c. D.17, s. 48 (2); 2006, c. 19, Sched. A, s. 6 (1).

Appeal by conservation authority

49.  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 written notice of appeal shall be served within forty days after the mailing of the notices under subsection 46