Coleman Municipal Drain

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Finlay and Edith McCormick, in Listowel, Ontario, under Section 64 of the Drainage Act from the quality of construction of the works under the engineer's report on the Coleman Municipal Drain in the Municipality of North Perth.

Before:
Marthanne Robson, Vice Chair; Jack Young, Vice Chair; John Rudics, Member

Appearances:
Andrew Osyany, representing the respondent, Municipality of North Perth
Rod McCormick, representing the appellants, Finlay and Edith McCormick
Tom Pridham, P.Eng., engineer who prepared the report
Tom Gibson, assessed landowner
Doug Johnston, representing Maplevue Farms, assessed landowner
Glen Kuepfer, contractor, witness for the respondent (the Contractor)
Gary Pipe, Operation Manager, Municipality of North Perth, witness for the respondent

Decision of the Tribunal

Background

The report on the Coleman Municipal Drain Improvement and Extension, 2007 by R.J. Burnside & Associates Limited (the Report) was completed in February 2007. Construction of the drainage works was undertaken that spring and the certificate of completion was signed May 7, 2007, by Mr. Tom Pridham, P.Eng. (the Engineer).

This appeal was heard in Listowel, Ontario on July 24, 2008. Finlay and Edith McCormick appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act), that they were dissatisfied with the quality of construction on the Coleman Municipal Drain. Mr. Roderick McCormick dealt with this project on behalf of his parents, Finlay and Edith McCormick, throughout the entire process: from attending on site meetings and meetings for the consideration of the Report, to being present and making decisions on their behalf during construction, to initiating the appeal to the Tribunal and giving evidence and presenting submissions at the Hearing of the appeal. Finley and Edith McCormick did not give evidence.

Prior to the beginning of the hearing, the Tribunal ordered the production of certain documents by the municipality.

At the outset of the hearing, the Tribunal ascertained that one set of engineer's notes which it had ordered produced prior to the hearing was made available to the parties. A second set of notes had not been produced; an electronic mail submission from the engineer indicated he did not have any notes for the meeting in question. Mr. McCormick advised the Tribunal he was satisfied with the documents produced.

Statutory Context

Section 64 of the Act states:

Appeal by owner of land
64. Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17, s. 64; 1998, c. 18, Sched. A, s. 1 (3); 2006, c. 19, Sched. A, s. 6 (1).

Overview of the Project

Mr. Pridham testified that the original Coleman Drain was constructed in 1913. The 2007 project was undertaken to incorporate two existing private tile drains (8-inch tubing drain and 6-inch tubing drain) into the municipal drain and to secure a formal outlet for tiled lands situated north of a bush on the McCormick property (Lot 61). The new outlet was to be through 745 feet (227 metres) of 6-inch tubing installed on the Maplevue Farms Ltd. Property (Lot 62), fifty feet from and parallel to the property line. The project also required the installation of two new catch basins at Sta. 545 and on the property line west of Sta. 318, and three new grates on existing catch basins.

Construction was undertaken on three days in April and May of 2007. On the second day of construction, it was discovered that the private 6-inch tile drain on lot 62 that was to be incorporated into the drain was in poor repair and partially blocked by tree roots. The problem was discussed with all landowners and it was decided that this 100m length of 6-inch tubing would be replaced, and the allowance in the report for incorporating the old drain removed accordingly. Mr. Pridham explained he had asked that a letter explaining the change be appended to the Report for future reference.

Mr. Pridham explained that the drain was designed with a ¼ drainage coefficient, which matched the drainage coefficient of the existing downstream outlet drains for the project. He said this was a lower coefficient than he would normally use for a new drain but that the landowners were in agreement with this coefficient.

The Issues

The issues before the Tribunal were:

1. Was the tee connection at Sta. 318 installed correctly?

2. Was an apparent reverse grade in the private tile in lot 61, connecting into the west side of the new catch basin on the property line west of Sta. 318, caused by defects in the construction of the Coleman drain?

3. Was the section of the existing Coleman Drain that was reconstructed from Sta. 235 to the property line west of Sta. 318 constructed at the proper gradient?

4. Did the construction result in a reverse grade in the tile connection at Sta. 318?

5. Should the Report be amended to reflect the change in Section 31 Allowance for lot 62?

6. Does the Tribunal have the jurisdiction to determine the legal status of a private drain located on Lot 62?

7. Should the McCormicks be ordered to pay the municipality's legal costs and additional engineering costs related to this hearing?

The Evidence

Issue # 1 - Installation of Tee Connection at Sta. 318

Mr. Roderick McCormick told the Tribunal that the Report required that the joints between tiles and each of the three ports on the tee connector were to be wrapped with filter wrap and mortared. He explained that a solid seal was necessary to prevent tree roots from entering the drain as there was a line of soft maples approximately twenty feet from the connection. He said he was present during the construction of the drain and observed that the joints were wrapped with filter wrap and bags of dry mortar were dumped on the top of the joints. He said the contractor then carefully dug and backfilled around the tee connector. He submitted this construction method was deficient as the joints were not mortared all the way around the circumference of the tile and there was no protection from tree roots for the sides and bottoms of the joints.

Mr. Pridham testified that he was present during construction and saw the contractor excavate under the tee, install filter cloth and dry mortar followed by wet mortar, then more dry mortar at the end. He said he saw the entire process and was satisfied the joints were sealed. He theorized that Mr. McCormick may have seen only the tail end of the sealing process. In response to a question, he confirmed that he had seen wet mortar installed.

Mr. Glen Kuepfer told the Tribunal he had been a drainage contractor full time for 15 years and had worked on approximately 50 municipal drains. He said they put dry mortar around the tee, then wet mortar all around the circumference, then a bit of dry mortar on it to help it dry. In response to questions he said his brother had applied the wet mortar all the way round and that they used masonry mortar typically used around catch basins. Mr. Keupfer said his main role had been operating the plough, and he had assisted with the installation of catch basins and junctions.

Issue # 2 - Apparent Reverse Grade upstream of the catch basin west of Sta. 318

Mr. McCormick testified that he had hired another contractor to do some private drainage work on lot 61 and that contractor had determined there was a reverse grade from his tile into the catch basin west of Sta. 318, impeding drainage of Lot 61. Mr. McCormick referred the Tribunal to several photographs that he had taken which he said showed ponding of water at the bottom of the inlet and outlet tiles, during a relatively dry period. Weather data was also provided. He stated the lowest water level he had seen in the tiles was just under two inches in the inlet tile, and 1.25 inches in the outlet tile.

Mr. McCormick also showed photos of poor functioning tiles in his private drain. He stated that tile that was installed in 1988 was totally choked by tree roots by 2005 and showed a photo of water flowing from the drain when the roots were removed. Mr. McCormick said that he believed the bedding for the original tile was disturbed when drainage stone was installed to stabilize the catch basin west of Sta. 318, and that this resulted in the reverse grade on his private tile. He explained that the drainage trench had been flooded when blocked tile was replaced and had to be bailed out, allowing for an opportunity to disturb the bedding.

A written submission by drainage contractor Mr. Dennis Erb confirmed that his company had measured elevations on the private drain and found the catch basin west of Sta. 318 was one inch higher than the elevation of a tile drain 104 feet upstream on the McCormick property. He had also observed that this section of drain was two-thirds full and flowing slowly. Mr. Erb was not in attendance at the hearing to give evidence.
Mr. Pridham referred the Tribunal to the Report (Appendix A, page 2), an 'as constructed' diagram of the drainage works and his notes. He stated that the pre-existing elevation at Sta. 318 was 399.21 m, that the Report called for an elevation of 399.21 m at both the inlet and the outlet tiles. He said he did not check the elevation at the time of construction but that he and the drainage superintendent, Mr. Pipe had measured the elevations on June 11, 2008 at 399.199 m at the inlet and 399.21 m at the outlet. Mr. Pridham stated that if there is a problem on the private tile, it was there before construction of the new drainage works. He verified that no work had been undertaken on the private drain as part of the Coleman Municipal Drain improvements.

In response to questions, Mr. Pridham indicated Mr. Kuepfer did not deviate from the grade in the Report. He said because of the relatively low drainage coefficient, there was probably an inch of water sitting throughout the drain in normal conditions. He said the grade where the drain joined with the main Coleman Municipal Drain was fairly steep, but he did not recall the exact grade.

Issue # 3 - Grade of the Reconstructed Tile from Sta. 235 to west of Sta. 318

Mr. McCormick stated that he was present when the section of 6-inch tile that was to be incorporated was replaced due to damage by tree roots. He said when the tile plough was disconnected he saw that where the new tile was to be connected to the catch basin west of Sta. 318 it was misaligned and most of the 6-inch tile was above the oversize hole in the catch basin. He said he heard the plough operator say we got the grade wrong, the tile elevation was too high.

Mr. McCormick explained he left to purchase mortar and when he returned the connection had been made but the soil had only been disturbed for about 20 feet downstream. He referred the Tribunal to photos which he said showed the catch basin was not functioning properly, at the same time that other catch basins on the drainage works were working. Mr. McCormick said the newly installed drain was not a uniform 0.3 grade and did not meet the specifications in the Report. He said the tile would have had to be bent to make it fit into the catch basin and pointed out that the Drainage Guide for Ontario indicates that constructed drains should not deviate more than 15% (7/8 in. for a 6 in. tile) from specifications on tile of that size. He also pointed out that reverse grades were not allowed. Based on his observation of 1.25 inches of water in the tile in no load conditions, Mr. McCormick concluded that there is a reverse grade.

Mr. Kuepfer said he was the plough operator. He recalled saying something to the effect that there was an increased grade there and they would have to dig it back. He explained that as he approached the property line, he raised the plough up in order to avoid damaging the existing tile and then dug by hand to lower the tile to grade.

Mr. Pridham said he was present during the construction of the catch basin west of Sta. 318. The drainage plough operator brought the plow up to avoid hitting existing tile and that the last 10 feet or so had to be trimmed out by hand. Mr. Pridham checked the grade with a laser and was confident there was no reverse grade in the tile. He theorized that Mr. McCormick saw the tile when it was first placed, before it was trimmed out.

Mr. Pridham said the 'as constructed' drawing showed that the entire drainage works was built according to the specifications in the Report, with the exception that the 6-inch private tile that was to be incorporated was replaced instead.

Mr. Pridham stated that he had seen about an inch of water in both the inlet and outlet tiles on June 11, 2008, and that it was not uncommon to have an inch of water sitting in corrugated tile even in dry conditions.

Mr. Pridham indicated it was a normal construction practice to raise the plough in this situation and then to trim the tile to grade by hand.

Mr. Gary Pipe verified that he had assisted with the 'as constructed' measurements in June 2008 and that the grades measured met the specifications.

Issue # 4 - Grade of the tile at Sta. 318

Mr. McCormick indicated that he was concerned there was a reverse grade where the new drain intersects with the replacement tile of the private drain that was incorporated. He said the only way to know would be to open the drain up and measure it. He said if the replacement tile was installed at a steeper grade and higher elevation than required in the Report, then there was a possibility that there is a reverse grade at this point. He said he based his conclusions on the same evidence that he saw when the tile did not line up with the catch basin hole.

In response to a question by Mr. Osyany, Mr. McCormick said he did not raise any of his concerns about the quality of construction while the construction was underway because he did not want to interfere with the engineer, costs were escalating quickly on the drainage works and he was learning as he went along.

Mr. Pridham indicated the drain was re-constructed as per the profile drawing in the Report.

Issue #5 - Amendment of Section 31 Allowance in the Report

Mr. Pridham testified that during construction it was discovered that the section of 150mm existing tile drain from Sta. 235 to west of Sta. 318, on lot 62 was full of tree roots and of questionable integrity. All parties agreed that this section of drain should be replaced with solid non-perforated tile and the work was completed. It was also agreed that the $600 allowance for lot 62 for existing drain under Section 31 of the Act not be paid and that the construction value in the Report be increased by $600. He asked the Tribunal to amend the Report to reflect this change.

Mr. McCormick stated that he fully supported this reconstruction.

Issue # 6 - Status of Existing Private Drain on Lot 62

Mr. McCormick testified that in his view his parents had a prescriptive easement on a private drain installed on Lot 62 and he understood that it would continue to operate after the improvements were made to the Coleman Municipal Drain. He said he had spoken to Mr. Pridham and told him they were going to retain their right to the easement drain, and Mr. Pridham told him that the easement drain was outside the scope of his Report. Mr. McCormick explained that when the drainage works were constructed, the private drain on Lot 62 was not connected to it. He said the private drain was clay tile and likely dated back to the 1913 work when the Coleman Municipal Drain was constructed.

Mr. McCormick told the Tribunal that his understanding of the Drainage Act was that it required the engineer to comply with the Professional Engineers Act and regulations and that the engineer is required to comply with all relevant law. Mr. McCormick said that the Report did not allow the engineer to sever the connection of the easement drain and divert it. He submitted that the Drainage Act was misused and his parents' rights were expropriated unjustly and that it was within the authority of the Tribunal to correct the situation.

Mr. Pridham said that the Report did not call for the connection of the old private drain to the new drainage works, and therefore the drain was not connected. He said there had been numerous discussions regarding this private tile and the landowner of Lot 62 did not want it connected to the new drainage works. He said the question of whether or not there was an easement was outside the scope of his work. Mr. Pridham said the new section of drain constructed under section 4 of the Act (Sta. 318 to Sta. 545) would adequately drain the lands that had been draining into the disputed drain and there was no practical advantage to connecting the old drain to the new drainage works. In response to questions, Mr. Pridham said he had seen the old drain where it was cut in two locations and that it was in poor condition.

Mr. McCormick disputed that the private drain was in poor condition. The Tribunal declined to hear detailed evidence to this effect as the private drain was not to be incorporated into the project, and its condition was irrelevant.

Mr. Osyany submitted this was a private dispute between landowners as to whether or not a prescriptive right existed and that this was a matter for the courts, outside the jurisdiction of the Tribunal.

The Tribunal ruled that it had no jurisdiction to deal with matters concerning rights to private drains and in any event, this was not an issue that could be appealed under section 64 of the Act, as it did not relate to the quality of construction.

Summations

Mr. McCormick indicated he believed the Report to be invalid because it was in conflict with the Act and municipal by-laws are subordinate to provincial statutes. He said Section 64 of the Act allowed him to appeal this conflict of law to the Tribunal.

With regard to the alleged defects in the construction of the drainage works, he asked the Tribunal to consider repairing defects in the Section 78 drain in the 10 foot section in dispute and to determine if the reverse grade occurred during construction or if it was a pre-existing condition. He asked that the Tribunal order the drain to be fixed to meet the specifications of the Report. In the event that the tee connection at Sta. 318 cannot be fixed to prevent tree roots from entering, he asked that the Tribunal order the removal of a row of soft maple trees. He asked that the one year appeal period for quality of construction appeals be extended if the Tribunal ordered changes to the drain.

Mr. Osyany submitted that the evidence with regard to grades was that the grade elevation at the catch basin west of Sta. 318 was exactly as ordered in the Report and that was no work done upstream on lot 61. He said it was clear that if there was a problem with the grade in the private drain upstream of this catch basin it had nothing to do with the construction in question. He said it appeared that Mr. McCormick had not seen the entire process of mortaring the tee in the same location and that both the engineer and the contractor testified that a process of dry mortar followed by wet mortar, followed by dry mortar was used. Regarding the point of the drain where work was done by hand to bring a tile to the correct level, Mr. Osyany pointed out that the engineer and drainage superintendent had checked the grade and found the drain was built to specifications. He argued that the appellant had brought speculation, not credible evidence of defects in construction.

Mr. Osyany asked that the Tribunal order that a letter by Mr. Pridham dated May 9, 2007 describing the replacement of one of the private drains and adjustment in allowances be appended to the Report.

Mr. Osyany asked the Tribunal to order the landowners of Lot 61 (the McCormicks) to pay costs in the amount of $10,000 ($6,000 for engineering work required to respond to the appeal and $4,000 in legal costs). He submitted that it was clear the Section 64 appeal had been brought for improper, private purposes as there was no problem with this drain and no benefit to the drain from the hearing. He said Mr. McCormick could have raised his concerns during construction, and later declined the opportunity to meet with the engineer before the hearing to see if matters could be resolved. He also pointed out that Mr. McCormick had made allegations of conflict of interest and professional misconduct. He said if these are not established there should be a penalty.

Mr. McCormick responded that the appellants are entitled to present beliefs, they do not have to be engineers and he asked that the case be evaluated as to the facts, not conjecture. He said the Municipality constantly said this was a spurious appeal but they were simply seeking to protect their rights where the Act has been misused. Mr. McCormick argued that, as landowners on the drain, even if the Tribunal ruled the protection of property rights was not within its jurisdiction, the appellants are entitled to present their sincerely held beliefs.

The Findings

Issue # 1 - Installation of Tee Connection at Sta. 318

There was considerable evidence presented with respect to the method used to seal the tiles to the connector at this location. The main contention was that the sides and bottom of the connections were not sealed properly to prevent the intrusion of tree roots. The Tribunal accepts the evidence of the Engineer and Contractor, who were both present when the connection was made, that the connections were made in accordance with the specifications in the Report.

Issue # 2 - Apparent Reverse Grade upstream of the Catch basin west of Sta. 318

Mr. McCormick presented evidence that there was a reverse grade on his private tile in lot 61 upstream of the catch basin west of Sta. 318. The "as constructed" drawings submitted as evidence indicate that the tiles in the catch basin are at the elevation specified in the report. As this private tile on lot 61 was not disturbed during construction of the Coleman Drain, this issue has no merit with respect to the quality of construction.

Issue # 3 - Grade of the Reconstructed Tile from Sta. 235 to west of Sta. 318

The evidence with respect to this issue was focused on Mr. McCormick's observation that the tile entering the catch basin west of Sta. 318 was misaligned and above the opening in the wall of the concrete catch basin, when the tile was initially installed using the drainage plough. The evidence of the Engineer and the Contractor clearly indicate, that when approaching the catch basin location, the drainage plough was raised to avoid damage to Mr. McCormick's private tile and that the Coleman Drain tile downstream was then adjusted by hand shovel to the specified grade.

The "as constructed" survey evidence shows the invert elevation of the tile in the catch basin to be 399.21m. as specified in the Report. The Tribunal finds that there are no grounds to support this issue.

The Tribunal further finds that if the appellant had agreed to meet with the Engineer and the Contractor, as requested, this common construction procedure could have been explained and this hearing may not have been necessary.

Issue # 4 - Grade of the tile at Sta. 318

Mr. McCormick's concern was that there may possibly be a reverse grade situation at this tee connection similar to the alleged grade problems in issues # 2 and # 3. As no evidence was presented, except for speculation, this situation cannot be considered.

Issue #5 - Amendment of Section 31 Allowance in the Report

The Tribunal will endorse the change in the Report to reflect the deletion of the incorporation of the existing 150mm tile on lot 62 and the reconstruction of this section of the drain.

Issue # 6 - Status of Existing Private Drain on Lot 62

Considerable discussion took place with respect to the status of the existing private drain that angles across lot 62 from about Sta. 235 to the property line at Sta. 545. The Report did not provide for this private drain to be connected to the Coleman Drain. Testimony indicated that all parties, including Mr. McCormick, had agreed that this tile not be connected to the Coleman Drain adjacent to the property line and that the owner of the private drain in lot 62 did not want it connected.

The Report, on page 1, states that "Mr. McCormick further outlined that the Section 4 petition was submitted to secure a formal outlet for the balance of his parents lands within the Coleman Drain watershed." It would appear that the construction of the Coleman Drain provides the formal outlet requested and there is no need to connect the private drain stubs to the Coleman Drain.

The Tribunal considered Mr. McCormick's request and found that there is no section of the Act that allows the Tribunal to determine the easement rights to a private drain. In any case, such a determination was not an issue related to quality of construction, the matter appealed in the case. Mr. McCormick had prepared considerable arguments with respect to this issue. Once the Tribunal ruled that the issue was outside of its jurisdiction, it declined to hear further evidence or argument on that issue.

Issue #7 - Assignment of Costs

In his summation, Mr. Osyany, representing the Municipality of North Perth in these proceedings, requested that the Tribunal make an award of costs. He submitted that legal costs were $4000 and additional engineering costs were just over $6,000, for a total of approximately $10,000. He asked that this be assessed directly to the owners of Lot 61, Finlay and Edith McCormick. There was no challenge or dispute to the amount of the additional costs.

Rule 28 of the Tribunal's Rules of Procedure (the Rules) provides for the awarding of costs in rare circumstances.

28.01 Where party believes that another party has acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances, it may ask for an award of costs. (Emphasis added)

In this case, one could ask, was this hearing necessary? Clearly the answer is no. Mr. Roderick McCormick argued that his parents, Finlay and Edith McCormick, had a sincerely held belief that they were entitled to a remedy before this Tribunal. They chose to challenge the quality of construction under section 64 of the Drainage Act. However this appeal was really about the McCormicks' claim they had certain rights to a private drain on their neighbour's property. This hearing was not the right place to determine that matter.

The McCormicks' issues and concerns with respect to quality and method of construction might have been addressed at the time of construction, when Roderick McCormick was present with the engineer and the other landowners. Roderick declined an offer to meet with the engineer and discuss the concerns after the construction was completed. His reason was that he didn't feel he had the right to go on Mr. Johnston's private property. There is no indication that permission was sought to go on Mr. Johnston's property to examine the construction.

Rule 28 provides that, to merit consideration of a costs award, a party's behaviour need only be one of: clearly unreasonable, frivolous, vexatious or in bad faith. The Tribunal does not believe that the appeal was frivolous or in bad faith. However, this appeal was clearly vexatious to the other parties, and certainly clearly unreasonable from the other landowners' and the Municipality's perspectives.

It was clear from Roderick McCormick's testimony that both he and his parents thought the private drain on Lot 62 would continue to function after the completion of this project. This belief was held to such an extent that he reconnected the private portion of the drain on his property to the private drain on Lot 62 after the completion of this project even though he knew that the private drain had been severed in two places downstream on his neighbours property. Mr. McCormick submitted photographic evidence showing the reconnection.

This belief was completely contrary to the intent and purpose of this construction project. Given the amount of discussion amongst the Municipality, the Engineer and the other landowners, the Tribunal finds that this belief was clearly unreasonable. The entire project was rendered more costly because of the numerous and lengthy discussions with Mr. McCormick. It would appear that it was this belief regarding the continued functioning of the private drain that led the McCormicks to seek a remedy before this Tribunal. Their behaviour could be characterized as forging ahead blindly ignoring all argument and reasoning of the other parties involved in this project. This clearly unreasonable behaviour is the type of behaviour that is contemplated by Rule 28.

For these reasons the Tribunal has decided to order that the McCormicks pay some of the additional costs related to this hearing.

Order of the Tribunal

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal by Finlay and Edith McCormick under Section 64 of the Act is dismissed.


2. Lot 61 shall be assessed a Special Assessment of $6,000 for the Municipality's legal costs and additional engineering costs associated with these proceedings.
   
3. The remaining additional costs associated with these proceedings, up to $4,000, shall form part of the costs for the project as a Special Assessment, and shall be levied against properties assessed in the Report in the same manner as the assessments associated with the construction of the drain.


4. The Engineer shall amend the Report in the Provisional Bylaw to reduce the Section 31 Allowance on lot 62 by $600 and increase the Construction Cost Estimate by $600. The Municipality shall provide each landowner with a copy of the amended bylaw, clearly marked "As amended by the Tribunal decision dated October 23, 2008".

Dated at Ottawa, Ontario this 23 October 2008.