The answer to this question stems from court decisions. When surface water is collected, the courts often follow the principal outlined in the 1897 appeal court decision in Ostrom v. Sills. In this decision, the judge writes the following:
“Generally speaking, the upper proprietor may dispose of the surface water upon his land as he may see fit but he cannot by artificial drains and ditches, collect it or the water stagnant pools or pond upon his premises and cast it in a body upon the proprietor below him to his injury. He cannot collect and concentrate such waters and put them through an artificial ditch in unusual quantities upon his adjacent proprietor.”
This means that if surface water (including tile drainage) is collected and directed onto a lower property, the property owner (and possibly the contractor) could potentially be held liable for the damages that result. The collected water must be brought to a sufficient outlet.
What is the definition of a sufficient outlet?
In the development of municipal drains in Ontario, the Drainage Act defines “sufficient outlet” as “. . . a point at which water can be discharged safely so that it will do no damage to lands or roads . . .” Although the Drainage Act does not regulate tile drainage systems installed on private agricultural land, this definition still provides a good direction for tile drainage contractors. The legal sufficiency of an outlet under common law can only be decided by a judge. Examples of sufficient outlets include:
- Municipal drains, but only for the area of land that is actually assessed into the municipal drain; before connecting to a municipal drain, contractors should contact the drainage superintendent about connection conditions (e.g. a 1 ft. freeboard).
- Natural watercourses, but only for the land that is in the watershed of the natural watercourse. Permits may still be required from the local conservation authority.
- Mutual agreement drains.
Are there other sources of information on the common law as it relates to water?
There is an excellent book entitled “Water Law in Canada – the Atlantic Provinces,” which contains a chapter on surface water and another chapter on riparian rights. John Johnston obtained permission from the publisher to post a scan of these chapters on the LICO website. You can find them here: www.drainage.org/reference_publications.html
As of August 13, 2018, there were 101 licensed tile drainage contractors in Ontario. There are 221 licensed machines and 450 machine operators (263 Class A). Remember, you are supposed to have your licenses with you when performing your work as a business or if you are operating a machine. It seems that no one goes anywhere anymore without their phone. Why not take a picture of your license with your phone? DC