Dean Drain No. 1

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

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Bud Kelly, Inwood, Ontario, under Section 64 of the Drainage Act (the Act) from the quality of construction of the drainage works under the engineer's report on the Dean Drain No. 1 in the Municipality of Brooke-Alvinston.

Before:

Kirk Walstedt, Chair; Doug Flook, Member; Enio Sullo, Member

Appearances:

Ray Dobbin, P. Eng., engineer who prepared the Report, on behalf of the Township
Randy Hills, Public Works Manager
Bud Kelly, appellant
Frank Wilson, witness for the appellant
Don McGugan, witness for the appellant
Ken Munro, assessed landowner

Decision of the Tribunal

This appeal was heard in Alvinston, Ontario on September 15, 2009. Mr. Kelly appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 64 of the Drainage Act.

Ms. Cathy Case, Clerk, Township of Brooke-Alvinston (the Municipality), performed the
duties of the Clerk for the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the report parties to this hearing. An Affidavit of Service was filed with the Tribunal as proof that all parties have been served with notice of this hearing.

Statutory Context

Section 64 of the Act states:

"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."

Background

The Tribunal heard from Ray Dobbin, the engineer who prepared the drainage report. Mr. Dobbin stated that the report was completed on July 28, 2006 pursuant to the Order of the Tribunal dated May 17, 2006. This Order was the result of an appeal by Bud Kelly under subsections 48 and 54 of the Act. After the report was adopted, the provisional by-law was submitted to the Court of Revision and the report was subsequently adopted by the Municipality by by-law. Construction of the drainage work took place between May 18 and 24, 2007, with some additional ditching work done after this period of time. The Drainage Superintendent attended the site on occasion and checked the grades.

Bud Kelly, a landowner on the drain, appealed to the Tribunal as he was dissatisfied with the quality of the construction of the drainage works, and the erosion of soil that had occurred as a result of settlement of the soil and rip rap on parts of the drainage works.

The Issue

The issues before the Tribunal were:

• Was the Dean Drain No. 1 constructed and completed in accordance with the specifications?

• Was the quality of the construction of the Dean Drain acceptable?

• Is remedial work on the drain required?

The Evidence

Mr. Kelly filed a number of photographs which he believed showed substandard construction of the drainage works on or near his property. These photographs included a surface water outlet pipe which was damaged by the contractor during construction, soil erosion around a catch basin, spacing on catch basin grates that do not meet the spacing as specified in the engineer's report, and access culvert (driveway) widths that do not meet the width provided in the engineer's report due to slumping of the rip rap on the sides of the driveway.

Mr. Kelly stated that he called Mr. Dobbin on August 3, 7 and 27, 2007 concerning issues about the drain and Mr. Dobbin stated that he would speak to the contractor about the problems he raised. However, he confirmed that he never put any of his concerns in writing to the Municipality.

Mr. Dobbin stated that he had talked to the contractor about some of the issues that had been drawn to his attention and acknowledged that there are outstanding issues to be addressed.

The Tribunal offered the parties the opportunity to meet to discuss the outstanding issues on this drain and attempt to reach a settlement. Each party agreed this would be beneficial.

The Municipality and Mr. Kelly returned after their discussion and presented the Tribunal with a settlement agreement resolving Mr. Kelly's issues, for the Tribunal's consideration. Mr. Dobbin stated that the items identified in the agreement would be addressed immediately and completed by the end of October, subject to being able to get the new grates for the catch basins manufactured on time.

Costs

Mr. Dobbin asked the Tribunal to assess his costs of $2,500 for preparing and attending the hearing to Mr. Kelly since several issues Mr. Kelly raised were not brought to anyone's attention. He felt if Mr. Kelly had advised the Municipality of his request in writing, the hearing could have been avoided. Mr. Dobbin did not think his additional costs should have to go towards the cost of the drain.

Mr. Dobbin also read a written note provided to the Municipality by Mr. Lee Moore, a landowner who was not able to attend the hearing. In summary, Mr. Moore's position was that the drain is working fine, that Mr. Kelly is making frivolous accusations, and that he should be responsible for all expenses related to the Tribunal hearing.

The Tribunal also heard from Mr. Ken Munro, a landowner, who indicated that he did not want any more costs associated with the drain and felt Mr. Kelly should be fully responsible for the costs of this appeal.

The Findings and reasons

As the parties reached a settlement with respect to the issues before us under Section 64 of the Act, the Tribunal is left with making a decision on the issue of costs.

A Cost Order may be made if a party requests it and a party has, in the Tribunal's opinion, acted inappropriately as outlined in Rule 28.04 of the Tribunal's Rules of Procedure. Such Orders, and the amount awarded, are to discourage conduct that wastes a great deal of the Tribunal's and party's time as well as other resources.

An Order for costs is very rare and is not standard as in court proceedings. It is only where the Tribunal finds that a party wrongly brought the appeal or participated unacceptably in preparation or hearing events, that an award of costs will be made.

We find in the matter before us that Mr. Kelly did not act in a manner that would warrant the awarding of the Municipality's costs against him.

Mr. Kelly testified that on at least three separate occasions he contacted Mr. Dobbin by telephone in an effort to have his issues resolved. Mr. Dobbin acknowledged receiving at least one of the telephone calls; however, Mr. Kelly's issues were left unresolved. Mr. Dobbin stated that Mr. Kelly should have put his complaints in writing. We give no weight to this argument as Mr. Dobbin acknowledged receiving at least one of Mr. Kelly's telephone calls, so it is clear that he and the Municipality were aware of the unresolved issues Mr. Kelly had with respect to the construction of the drain.

We see the issue as one of a communication breakdown, the reasons for which are not clear to the Tribunal. With that being said, it is our determination that both the Municipality and Mr. Kelly should accept equal blame in not having the issues satisfactorily resolved prior to appearing before us. Had the parties communicated properly, there would have been no need to bring the matter before us. Proof of this lies in the fact that the outstanding issues were dealt with by the parties during a 30 minute recess of the Hearing.

It is therefore this Tribunal's findings that the Municipality's request for costs from the appellant is denied.

Order of the Tribunal

1. The tile connection to catch basin #1 is to be repaired using concrete grout on both sides of the catch basin wall.
2. The surface water inlet pipe at catch basin #1 is to be replaced and moved 1.2 metres east of the anchor post, with installation at the same elevation.
3. The catch basin grates on catch basins #1, #2 and #3 are to be replaced with gate spacing of 50 millimetres end to end in one direction.
4. The surface water inlet pipe approximately 60 metres east of the west line fence is to be replaced with a new pipe to match the existing location and elevation, and leaving a 150 millimetre overhang into the open channel.
5. The driveways are to be repaired using rip rap and gravel top as required to provide a 7.3 metre (23.9 feet) wide travel surface. The flat surface is to be compacted at both driveways.
6. The side slopes of the open channel are to be seeded to the top of the banks plus 600 millimetres beyond.
7. The existing 100 millimetre diameter subsurface drain immediately east of the west driveway is to be excavated and lowered to provide a minimum of 300 millimetres cover.
8. The costs of these repairs are to come from the contractor hold back of $500 and the 10% deposit cheque.
9. All repairs are to be completed by October 31, 2009 subject to the catch basin grates being available for installation.
10. The non-administrative costs of the Municipality with respect to this appeal shall form part of the cost of the drainage works. The Tribunal will make no award as to costs and, as such, all parties shall be responsible for their own costs.
    
    

Dated at Maidstone, Ontario this 22nd day of September, 2009.