David White during his legal battle for flooding of his farm
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Hi, my name is David White.
I am seeking financial support so that I can continue a decade-long legal battle against the Town of Fort Erie and the City of Niagara Falls. In the litigation I am suing both municipalities as they have allowed the St. John Marsh Municipal Drain to go out of repair. As a result of the poor state of repair of the municipal drain, one third of my farm is regularly under water. From time to time, even the road I live on, Willow Road, has been washed out due to the flooding.
The roadside ditches and a watercourse outlet onto my farm. Over the past 20 years many roads in my area have been closed, which has caused more water to travel down the ditches of Willow Road where I live. Surface water on my farm used to drain into the top of the St. John Marsh Municipal Drain, located in the Willoughby Conservation Area that shares a north boundary with my farm. However, the drain in the conservation area has not functioned properly for many years. As a result, the conservation land that had consisted of dry farm land since the late 1800s has slowly filled with water to become a swamp. The water pooling became so severe that it expanded beyond the boundaries of the Willoughby Conservation Area onto my farm and the surrounding farms. Not only did I have water spilling onto my property from the conservation area, but the water that flowed onto my farm from the roadside ditches pooled in my fields as it had nowhere else it could go.
I attempted to alleviate the flooding from both sides of the farm by having many truckloads of fill dumped on the farm. I am an operating engineer by trade and before I retired I drove a bulldozer for many years building drains. The filling of my land went smoothly until about 2009 when a meeting of municipal officials was held at the farm. At the outset of a meeting, a by-law officer charged my parents and me with offences under the Conservation Authorities Act. The flooding continued as a result of a drain that was not on my property being plugged. Tensions were high and the municipalities were pointing their fingers at me. It was a wrongful prosecution and the outcome would do nothing to alleviate the flooding issues from the drain that was not on my property.
I hired a lawyer to defend me. The trial of the prosecution was before Justice of the Peace Moses. Many witnesses testified during the trial. I was surprised to learn that the Niagara Region was planning to construct a new six-lane highway over or near my property and the conservation land.
Below is a link to a Hamilton Spectator article regarding the potential highway construction:
https://www.thespec.com/business/goodbye-mid-peninsula-highway-hello-niagara-to-hamilton-trade-route/article_479b5783-e27c-534a-b237-a3bae8da1100.html
Since the flooding devalues my land it would allow it to be purchased at a lower price when the time comes for the highway to be installed. Even though the Justice of the Peace was satisfied that my actions had not caused the flooding, I was found guilty of the offences I was charged with. At the sentencing hearing in 2012, Her Worship Moses denounced the prosecutor for using the Conservation Authorities Act and the justice system as a weapon against my parents and I. Shortly after the sentencing hearing many people who worked for the Niagara Peninsula Conservation Authority (see heading no. 7.1 in the report linked below), Fort Erie, and Niagara Falls lost their jobs. The prosecutor who opposed me during my trial left the role of prosecutor not long afterwards. He went on to work at the health department, but left that role after a short time to work elsewhere.
A copy of the Auditor General's report regarding the Niagara Peninsula Conservation Authority is linked below:
After the trial, I remediated the farm but the flooding issues persisted. In 2012, I resorted to giving formal notice under the Drainage Act to both Fort Erie and Niagara Falls that the St. John Marsh Municipal Drain needed to be repaired. I also initiated a legal proceeding in the Court of the Drainage Referee, to ensure that a Referee would see the repair process through and award damages to me for the loss of topsoil and my inability to grow crops on a third of my 24-acre farm.
It eventually came to my attention that a drainage engineering firm called K-Smart had been appointed in 2002 to assess and report on the state of repair of the St. John Marsh Municipal Drain in Fort Erie, as well as two other drains.
The St. John Marsh Municipal Drain runs through both Fort Erie and Niagara Falls, but the two municipalities did not coordinate the repairs. Instead of one engineer being appointed to work on the entire length of the drain, K-Smart only reported on the state of the part of the drain that was in Fort Erie.
In about 2012, Fort Erie submitted a formal Drainage Act petition to Niagara Falls for construction of a new drain servicing my road, but the Niagara Falls council rejected it.
The part of the St. John Marsh Municipal Drain in Niagara Falls was not assessed by a drainage engineer until about 2015, three years after I gave notice to Niagara Falls that the drain needed to be repaired.
When the K-Smart engineering report was released in about 2016, it stated that the entire length of the drain in Fort Erie needed to be repaired. The actual digging and repairing of the drain would not be completed for several more years.
As mentioned above, Niagara Falls appointed a separate drainage engineering firm called Spriet and Associates in or about 2015 to assess and report on the status of the St. John Marsh Municipal Drain in its jurisdiction. Most of the drain in Niagara Falls ran through the Willoughby Conservation Area, which is where the water from my farm was supposed to outlet.
The 2017 Spriet engineer’s report stated that the drain was severely out of repair in Niagara Falls, so it came as a shock when I learned that the engineer’s recommendation in the report was that most of the drain running through the conservation area was to be abandoned. If that part of the drain was abandoned, the drain would not be dredged back into repair and my farm would be left without a water outlet.
In order to challenge the engineer’s recommended abandonment, I appealed the Spriet report to the Ontario Drainage Tribunal. The Tribunal hearing occurred in 2018 and it involved a testimony by several witnesses, including the author of the report, John Spriet. He testified that at the request of the conservation authority, he placed a plug in the St John Marsh Municipal Drain in 1983. He also testified that he could not locate the drain anymore due to there being too much water in the Willoughby Conservation Area. In 2019, the Ontario Drainage Tribunal allowed the abandonment of the drain in the conservation area. I firmly believe that the lack of water flowing through our drains is the cause of the high number of spinal meningitis cases in the area.
In April of 2020, repairs on the St John’s Marsh Municipal Drain in Fort Erie were completed. Repairs on the part of the drain that was not abandoned in Niagara Falls were completed in January of 2021. The flooding on my farm has continued despite the drain being put back into a state of repair. This is due to the fact that the part of the drain that my property used to outlet to has been abandoned.
The Court of the Drainage Referee ruled in my favour in February of 2024, when it was ordered that Niagara Falls and Fort Erie were both liable to pay me due to the damage from the flooding.
A link to the court's decision is below:
After twelve years of litigation I thought I was finally going to be compensated for the damage to my farm. The court decision would help many of the other rural landowners in Ontario to more easily obtain compensation since it clarified the interpretation of the law by stating that a landowner can give oral notice that a drain is out of repair to a municipality. Prior to this case it was thought that notice needed to be in writing, which historically excluded many landowners from entitlement to damages for flooding. Unfortunately, both Niagara Falls and Fort Erie appealed the Referee’s Order, which means that the ruling that notice can be given orally may be overturned to the detriment of future flooding claimants.
Both municipalities missed the procedural deadline for making the appeals. I attempted to bring a motion to have the appeals dismissed for delay but the registrar twice refused to sign the dismissal order, which she was bound by law to sign. She subsequently allowed the municipalities to file the appeal materials after the deadline. In the subsequent case conference the Justice Sheard did not hold the registrar accountable for her refusal to sign the order dismissing the appeals for delay.
The appeals are expected to be heard in Hamilton in late 2024 or early 2025.
Aside from carrying on with my court proceeding to obtain financial compensation, I have also taken the important step of petitioning for a new branch municipal drain to be constructed near my house that will outlet into the St. John Marsh Municipal Drain. This new drain would alleviate the surface water from my farm, my neighbour's properties, and the roadside ditches. The Drainage Act provides that the cost of constructing this new municipal drain needs to be paid for by substantial tax increases to be paid by me and the other landowners who benefit from it. This is not ideal for me as most of my money is going towards the ongoing lawsuit. I am bound to proceed with the petition process though as not doing so could mean that I am not entitled to recover as much of a damages award in the litigation. Niagara Falls has appointed the engineering firm of K-Smart to design the new drain. I am apprehensive about the appointment as it previously took K-Smart more than 15 years to bring the St. John Marsh Municipal Drain into repair and they did not report on a half mile of the drain within Fort Erie north of Netherby Road. It is my goal to obtain an order in the lawsuit that Fort Erie and Niagara Falls are to pay for the entire cost of constructing the new drain. This would reduce the increase in taxes that me and my neighbours would need to pay for the new drain.
My neighbours and I have been paying taxes yet we have experienced flooding for the past 20 or so years, despite the fact that we are within the watershed boundary of the St. John Marsh Municipal Drain.
I am now 12 years into this litigation and have spent approximately $400,000 to fund it. As a retired operating engineer, I have had to resort to selling my personal belongings, using all of my pension money and to selling my two-acre retirement lot just to make ends meet. The litigation continues. So does the flooding. Any financial relief that you can provide would be greatly appreciated.
With thanks,
David
Organizer
David White
Organizer
Welland, ON