Ontario Drainage Act: Shared Ditches and Municipal Drains

If you own rural or farm land, a ditch along the boundary can be a quiet convenience or a source of constant friction. Who maintains it, who pays and what happens when water floods a neighbour often come down to whether it is part of a municipal drain.

This article walks through the basics of Ontario's common law on surface water, the Drainage Act process, how costs are assessed and the deadlines for disputing them.

Ditches that are not part of a municipal drain

Under Ontario common law, surface water has no right of drainage. Collected or discharged surface water, such as tile drainage, roof runoff or road ditch water, must not be diverted onto land that would not naturally receive it, or liability for damages can follow.

There is an exception. A right to drain collected water onto a neighbour's land may arise from 20 years of continuous, open, peaceful, uncontested use without permission. A court must confirm the right, and it can be lost if the drainage is increased.

Owners can also deal with a shared ditch privately. Two or more owners can make a written agreement under s. 2 of the Drainage Act. If registered on title, it binds future owners and is maintained according to its terms, but enforcement is only through court action.

How a municipal drain is started

A petition for a municipal drain is filed with the clerk of the municipality. Petitioning owners must make up a majority in number of owners in the area, or own at least 60% of the area requiring drainage.

Once a petition is accepted, council must appoint an engineer to examine the area requiring drainage. The engineer's report assesses each property for benefit, outlet liability and injuring liability. The assessment is what ultimately sets what each owner is asked to pay.

Maintenance, repair and who pays

A drainage works must be maintained and repaired by each local municipality it passes through, and the cost is assessed in the proportions set by the current by-law. If the drain is in poor condition, any person affected by it may serve 45 days' notice to compel the municipality to repair it.

Assessments on agricultural land may be eligible for a provincial grant, and the municipality applies for it. For maintenance and repair, the grant applies only to land assessed at the Farm Property Class Tax Rate. The grant percentage is best confirmed with the Ministry or the municipality.

If you are buying or selling, note that Drainage Act charges attach to the property when billed, and the current owner must pay them. Ask about outstanding or upcoming drainage charges before closing.

Disputing an assessment or report

Different appeals have different clocks, and the stage of the process matters. The main ones in the Act are below.

Under the Drainage Act, the Tribunal means the Agriculture, Food and Rural Affairs Appeal Tribunal, not the Ontario Land Tribunal. Which route applies depends on whether the report concerns a new drain, an improvement or maintenance, so check the notice you received.

What to do next

Damaging or obstructing a drain or its working corridor is an offence. The owner may be ordered to restore the drain and pay costs, and the fine is up to $1,000 or up to thirty days' imprisonment. Avoid filling, planting or building in or near a drain until you have checked.

• Ask the municipal clerk whether a ditch on or near your land is a municipal drain.
• Request the current drainage by-law and engineer's report for your property.
• Mark every deadline on your calendar as soon as you receive a notice.
• Check title for any registered drainage agreement.
• Photograph flooding or blockages with dates.
• Talk to a lawyer if a neighbour's water is damaging your land or an assessment seems wrong.

Frequently asked questions