Elphick Municipal Drain Addendum

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

And in the matter of:

Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Laura Jarvis and Steven Hare, Brian and Linda Johnston, Jeff and Kristi Gammie, Linda Sharpin, and Steve Moran, in Lucknow, Ontario, appealing under Subsection 48(1) of the Drainage Act from the Engineer's report, and by Jeff and Kristi Gammie, Steve Moran, and Ken and Joyce Elphick, in Lucknow, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Elphick Municipal Drain in the Township of Huron-Kinloss, Ontario.

Before:

John O'Kane, Vice Chair; Mary Field, Member; William Schaefer, Member

Addendum to Tribunal Decision, dated May 2, 2008

On May 2, 2008 the Tribunal panel assigned to the Elphick Drain hearing released its decision (the "Decision").

On May 23, 2008, John Kuntze, the Drainage Engineer wrote to Tribunal staff to raise two issues related to the Addendum to the Report. Those issues arose from the Tribunal's Order to amend the Report.

The first issue related to the cost of a catchbasin the Tribunal ordered at station 032.

The second issue related to how to deal with engineering costs previously spread over three drain intervals where the Tribunal ordered the construction of only one drain interval.

The Tribunal panel held a telephone conference call with Tribunal staff on June 2, 2008 to discuss Mr. Kuntze's correspondence. At that call the Tribunal determined it would be proper to consider Mr. Kuntze's request only after giving all parties to the March 31, 2008 appeal hearing notice and an opportunity to respond.

On June 2, 2008, Tribunal staff wrote to all parties to the March 31, 2008 appeal hearing. That communication advised all parties of Mr. Kuntze's communication and provided a copy. That communication advised all parties they could make submissions by June 17, 2008 and then reply to submissions by July 2, 2008.

The courier service returned the communication addressed to Brian Johnston and Linda Johnston undelivered. Tribunal staff contacted the Johnstons and arranged an alternate delivery. Because of the delay delivering to the Johnstons, Tribunal staff allowed them extra time (until July 17th) to make submissions. Mr. Johnston told Tribunal staff he wanted to consult legal counsel. By July 29th the Tribunal had not received any submissions from the Johnstons.

The Tribunal held a further telephone conference call with Tribunal staff on July 30th, 2008.

We find that a full and fair opportunity to participate has been given to all parties. None of the parties filed submissions about Mr. Kunzte's communication to the Tribunal.
Since we are satisfied of the procedural fairness of our approach, we now turn to the substantive issues raised by Mr. Kuntze's May 23rd communication.

Issue 1: The Cost of the Catchbasin

Our earlier decision was that Elphick's drainage issue required construction of only interval 1 of the three proposed intervals.

We accepted that the catchbasin at station 032 was essential to the drain even in the truncated form reflected in our earlier decision.

We always intended that the cost of the catchbasin at station 032 was part of the overall cost of the drain.

Therefore to clarify, the $500 cost of the catchbasin at station 032 is included as part of the cost of the drain. Mr. Kunzte will apportion that cost accordingly.

Issue 2: The Overhead Costs (Engineering and Administration)

As Mr. Kuntze explained in his May 23rd communication the overhead costs of the drain in the Report were divided between the three proposed intervals. However, our earlier decision, which directed construction of only interval 1, did not address the overhead costs previously apportioned to intervals 2 and 3.

Mr. Kuntze advised that $1,600.00 of the engineering costs, previously apportioned to intervals 2 and 3 would have to be re-apportioned onto interval 1. That would bring the engineering costs on interval 1 from $1,800 to $3,400. As Mr. Kunzte points out, most of that expense is related to the $2,900 associated with preparing the Report.

However, as with all modest drainage projects there is often a tension between the costs to build the drain and the associated engineering costs. That tension is seen here with construction costs of $2,300 and the associated engineering costs of $3,400.

Therefore in the circumstances, we find that it is fair and reasonable to all parties to allow the following engineering costs for the drain:

Report Preparation $2,100.00

Construction Administration & Supervision $ 500.00

Revised Total Engineering Costs Estimate $2,600.00

This revision amounts to an $800.00 reduction in the revised costs of the drain as proposed by Mr. Kuntze in his May 23rd communication. This reduction will necessitate Mr. Kuntze revising the apportionment in his proposed assessment schedule.

Our decision on the engineering costs raises the question of what becomes of $800 in engineering expense that we do not allow as part of the costs of the drain. We accept that the engineering work was completed in a professional manner and Mr. Kuntze is entitled to be paid by the municipality. We therefore direct that the $800 is for the account of the Township of Huron-Kinloss alone and will not form any part of the costs attributed to the drain.

Dated at Brampton, Ontario, this 31st day of July, 2008.