Elphick Municipal Drain

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

Appearances:

John Kuntze, P. Eng., on behalf of the Township of Huron-Kinloss, respondent
Ken and Joyce Elphick, appellants
Jeff Gammie, appellant
Steven Hare, appellant
Brian and Linda Johnston, appellants
Linda Sharpin, appellant

Decision of the Tribunal

Overview

The Elphick Municipal Drain (the "Drain") in the Township of Huron-Kinloss ("Township") arose from the May 2006 petition for drainage made by Ken and Joyce Elphick ("Elphick") under section 4[i] of the Drainage Act, R.S.O. 1990, c.D.17 (the "Act").

On May 15, 2006 the Township appointed John Kuntze, a professional Engineer with K. Smart & Associates Limited (the "Engineer") under section 8[ii] of the Act to examine the area needing drainage and prepare a report.

On November 1, 2007 the Engineer delivered (the "Report"), with recommendations for drainage works in response to the Elphicks' petition for drainage. The Report included an assessment of whom would bear the costs of the drainage works.

Five appeals from the Report under section 48[iii] of the Act came before the Tribunal. The appellants are Laura Jarvis and Steven Hare (collectively "Hare"), Brian Johnston and Linda Johnston ("Johnston"), Jeff Gammie and Kristi Gammie ("Gammie"), Linda Sharpin ("Sharpin") and Steve Moran ("Moran"). The essence of those appeals was the drainage works should not continue. The reasons were: (1) the Elphicks did not have a drainage problem; (2) if the Elphicks did have a drainage problem they should solve it themselves privately; (3) the costs of the drainage work outweighed any benefit of the work.

Three appeals under section 54[iv] of the Act came before the Tribunal from the January 21, 2008 decision of the Court of Revision. Those appeals were from Gammie, Moran and the Elphicks. The Court of Revision decision altered the costs assessment in the Report. The essence of Gammie's appeal was that the Elphicks should bear all the costs of the drainage works. The Elphicks appealed to restore the cost assessments to those originally set out in the Report.

All eight appeals went together on March 31, 2008 in Ripley, Ontario. Ms. Sonya Watson, Clerk of the Township performed the duties of Clerk of the Tribunal.

Before the hearing took place the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the appeal. Ms. Watson filed a Declaration of Service at the start of the hearing proving the notice of the hearing was served on all parties.

The Elphicks, the Johnstons, Steven Hare, Jeff Gammie and Linda Sharpin all attended and took part in the appeal hearing. Steve Moran did not attend the appeal hearing.

Preliminary Matters

As part of the Tribunal's standard opening explanation of the rules for the hearing the Tribunal asks if anyone wants standing at the hearing.

Wilt Gamble, Deputy Mayor of the Township and a Member of the Court of Revision that heard the original appeal of the assessments in the Report asked for standing.

Mr. Gamble explained the nature of his interest was to explain to the Tribunal the reasoning behind the January 21, 2008 Court of Revision decision. In response to the Tribunal's invitation for submissions no party objected to Mr. Gamble's request.

The Tribunal rose to consider Mr. Gamble's request and on resuming ruled against granting Mr. Gamble standing.

The Tribunal sits as an appeal body under section 54 of the Act from decisions of the Court of Revision. Because of that the Tribunal considered it inappropriate to grant standing to Mr. Gamble. The Tribunal conducts a fresh hearing into the assessments from the Report and it must exercise its own independent decision-making powers. The Court of Revision's reasons should be clear from the face of the decision. If the Court of Revision's reasoning is not clear from the face of its decision, Mr. Gamble's explanation of the reasoning will not help the Tribunal in exercising its own independent decision-making powers.

The Background

The Elphicks have lived in the former Village of Lucknow, now the Township, for 13 years. Their immediate neighbour to the south is Hare. Their immediate neighbour to the north is Gammie and the immediate neighbour to the west is Johnston. Moran and Sharpin are neighbours but to the south of Hare. Between the May 2006 Petition and the delivery of the Report the ownership of the Johnston, Hare and Gammie properties changed. Johnston, Gammie and Hare are referred to since they are the current landowners

The Report identified a small area needing drainage. That area is confined to part of the Elphicks' back yard. The entire watershed or drainage area is .56 hectares. The Engineer testified that in 30 years of professional practice this was the smallest municipal drain project for which he had ever prepared a report. The objective of the Drain is to provide the Elphicks with an improved drainage outlet for their back yard.

The outlet of the drain will be into an existing watercourse on Gammie's property. The drain will continue upstream across the Gammie property and then across the Elphick property to a proposed catchbasin at the lot line between Elphick and Hare. The drain is proposed to be 56 metres of solid plastic pipe of 200mm diameter. The pipe will be double wall construction to accommodate high flow velocity and prevent root penetration. The total costs of the Drain will be $8,400.00. The Engineer arrived at an assessment schedule that shared those expected costs among the properties in the watershed. Those properties are owned by the parties to these appeals.

The Engineer is a licensed professional Engineer with 30 years of experience in municipal drainage. During his career he has written about 12 reports a year under the Act. Previously he has been qualified to give expert evidence before both this Tribunal and the Ontario Municipal Board. On the Engineer's motion, after hearing evidence about his qualifications, the Tribunal qualified the Engineer to give expert evidence in the discipline of municipal drainage matters.

The Issues

1. In the circumstances of these appeals, can the Tribunal cancel the Report and the drainage works, and end the process?
2. Can an improved drainage outlet be achieved for the Elphicks?
3. What should be done with the assessments?

Discussion and Findings

In the circumstances of these appeals, can the Tribunal cancel the Report and the drainage works, and end the process?

The evidence of Gammie, Johnston, Hare and Sharpin was consistent; they all doubted the Elphicks had any drainage problems. Their reason was that since they had no drainage problems, they doubted the Elphicks did.

They did produce a photograph taken from Hare's back yard showing the Elphicks' back yard area on January 9, 2008 following a significant thaw. That photograph does not show any surface water in the Elphick back yard. They also produced a photograph from elsewhere in Lucknow that same date showing evidence of flooding because of the thaw. The Elphicks produced their own photograph, taken a day or two earlier that shows surface water in the Elphick back yard.

The Elphicks testified they have experienced a drainage problem in their back yard for the 13 years they have lived there. They testified the problem was mostly a subsurface water problem. The area needing drainage in their back yard stays spongy. In their home they have a sump pump that runs often to take away water that infiltrates the foundations. Occasionally they also have standing water on the surface of the spongy back yard area.

The Engineer's evidence, based on his own several site examinations at various times of the year (January, April and August), was that there was a drainage problem in the Elphicks' back yard.

It was clear from the evidence of Gammie, Johnston, Hare and Sharpin that they were all suspicious of the Drainage Act process. None of them felt they would receive any benefit from the Drain. The evidence was the Elphicks' use of the Act was: poisoning neighbourhood relations; had cost them thousands of dollars; and, the outcome of the appeals might open the floodgates to others in the Lucknow area who might turn to the Act to resolve drainage issues.

However, if the requirements of the Act are met and a drainage works built, the affect on neighbourhood relations is not relevant. The Tribunal has no ability to control neighbourhood relations which remain the province of the people in the neighbourhood.

The government of Ontario passed the Act in the 1800s and it remains a part of our law today. The Ontario Divisional Court has, as recently as February 28, 2008, confirmed in City of Welland vs. Comazzolo that people with drainage problems can access the Act whether in rural or urban settings. Therefore the spectre that many people from Lucknow might petition for drainage works under the Act is irrelevant to the Tribunal's decision-making.

Mr. Johnston advanced the suggestion that the Drainage Act process started by the Elphick drainage petition had cost the appellants thousands of dollars. However he did not file any documentary in support of that testimony. Further there was no particularization of the amount beyond "thousands". The Tribunal gives little weight to that evidence. In any event, the Tribunal's decision does not depend on the expense the parties incur because of the process.

Universal among the section 48 appellants was the position that the proposed drain would be no benefit. However, the Act is not concerned with a current landowner's subjective view of benefit derived from the Drain. Rather, the Act is concerned with the objective measurement of the benefit to the land as section 1[v] of the Act defines that word.

The section 48 appellants were disturbed the Engineer was not listening to their unanimous objection to the Drain. However, the Engineer's duties are not based on a majority poll of all the lands affected by the Drain. The Act sets out the Engineer's duties. The Tribunal is satisfied on the evidence the Engineer carried out his duties under the Act.

Another theme that emerged from the evidence of the section 48 appellants was that investigations ought to have been conducted by digging up the Elphicks' back yard to discover the source of the water. The Act is not concerned with the specific source of water needing drainage. A fundamental physical principle is that water flows downhill with gravity. The task under the Act for an Engineer is to take water from the area needing drainage to a sufficient legal outlet. Therefore, the source of the water is not relevant. In this context one can be certain, if water is present, it came from somewhere upstream. The only exception might be where water is present because of an underground spring where water is being forced up through the ground under pressure.

The Engineer did testify that he suspected the subsurface water in the Elphick back yard was because of either an underground spring or because of buried tile drains originating on the upstream properties of Johnston or Hare. He explained that during his investigations he found a drain catchbasin in the driveway of the Johnston property. He suggested the catchbasin was connected to buried drainage pipes. His investigation confirmed it was not a municipal drain. His investigation did not reveal the route of the drainage pipes connected with that catchbasin. He theorized those pipes could possibly run underground through the Elphick property and if there was any break in the underground pipe, that could be a source of the subsurface water in the Elphick back yard. He also testified that he saw roof gutter downspouts from the buildings on both the Johnston property and the Hare property extended underground. He testified that typically that would only be done if the downspout then connected to an underground pipe that carried the water downstream away from the building foundation. Again he theorized that if such underground pipes exist they could extend through the Elphick property and if such underground pipes broke, that could also be a source of the subsurface water in the Elphick back yard.

If any such underground drainage pipes exist remains academic since, as noted above, the source of the water is not material to the issue of an area needing drainage. If any such pipes exist they have no legal status as municipal drains and without private contractual arrangements between neighbours, there is no legal basis for such pipes crossing the Elphick property.

The Tribunal is satisfied on the evidence before it that the Elphicks have experienced a persistent drainage problem on their property. The Tribunal is satisfied that the area needing drainage is confined to the Elphicks' back yard and therefore the Elphick Petition is, as the Engineer decided, a valid Petition. Therefore in the circumstances of this case, the Tribunal cannot cancel the Report and the process.

However, as the next section will address, where suitable, the Tribunal can direct changes to the drainage works.

Can an improved drainage outlet be achieved for the Elphicks?

The section 48 appellants do make a good point about the costs of the proposed work at $8,400.00 for the size of area needing drainage.

The Engineer testified that he developed three alternatives to address the Elphick petition. In summary, those three alternatives are:

• a drain extending from the watercourse at station 000 to the Gammie/Elphick lot line at station 032;
• a drain extending from the watercourse at station 000 to station 044 which is a point about midway through the Elphick backyard in the area needing drainage; or
• a drain extending from the watercourse at station 000 to the Elphick/Hare lot line at station 056.

In each alternative the Engineer recognized the proposed work would not guarantee the Elphicks' subsurface water issue would evaporate. He testified that in any municipal drain his duty is to provide a sufficient legal outlet. It remains up to the private landowners to connect to the municipal drain with any desired lateral drainage measures if they want to further improve the drainage on their land.

The following table shows the costs associated with the drainage works for each of the three alternatives as extracted from the Engineer's "Calculation of Assessments" marked as Exhibit 4.

The Engineer's evidence was that because of the nature of the drainage issue his approach was to do the minimum needed to address the issue. The Tribunal finds that approach is reasonable and responsible.

The Engineer testified that when he presented the three alternatives to the Elphicks, they elected to have the works installed to the Elphick/Hare lot line. When the costs associated with the Elphicks' election is considered it translates into $4,500 of the overall $8,400 total estimated cost. That is about 54% of the total proposed cost of the drainage works involved to extend the drain from station 032 to station 056. That 24 metres of the Drain accounts for more than half the total estimated cost.

Since the objective of the drain is to provide the Elphicks with a legal outlet and improved drainage, the Tribunal finds that objective can be accomplished with the first alternative noted above ending the works at station 032. That first alternative also ensures the minimum work and therefore minimum cost will be needed. That first alternative will allow any surface water from the Elphick backyard a place to drain. More importantly, it will provide a place where the Elphicks can connect lateral drainage measures from their backyard to drain the subsurface water to a sufficient legal outlet.

By truncating the drainage works at the Gammie/Elphick lot line the Tribunal is recognizing that, for at least part of the proposed works, the cost-benefit arguments made by the section 48 appellants are valid.

However, there are risks to the upstream section 48 appellants associated with truncating the Drain at station 032.

The evidence of the section 48 appellants was clear: they had no drainage issues; and, they had no intention of ever connecting to the municipal drain. However, there is at least a chance there are undiscovered drainage pipes that cross the Elphick property from the upstream lands. If that turns out to be the case there may be no legal status of those drains in which case the Elphicks might have no duty to continue to allow those drains to exist. Therefore the upstream landowners could find they have drainage issues if previously undiscovered drains across the Elphick lands no longer work. In that case they might well need and want the ability to connect to a safe, secure and legal municipal drainage outlet.

Extending the drain across the Elphicks' property removes any potential for friction between the Elphicks and the upstream neighbours should those upstream landowners ever wish to connect to the municipal drain. The only permission issues would then be with the owners of the Hare property. However, by truncating the Drain at station 032, any future connection by any upstream landowner would need either the Elphicks' permission to cross their lands or a further petition under the Act. In either case it is possible the entire cost of crossing the Elphick property would have to be borne by those upstream landowners.

The Engineer testified that early in the process he presented a suggestion to the upstream landowners that they join in the Petition so the drainage works could be extended across the Hare property and on to the Johnston property. The upstream owners rejected that suggestion. The Engineer's evidence about the benefits the upstream owners would get from an extended drainage works or even the works stopping at station 056 suggest he understood those risks to the upstream lands. The Elphicks, being former farmers and fully familiar with both municipal drains and the risks associated with private drains also appear to have understood those risks.

The section 48 appellants remained fixed that they would never have any use for a connection with the municipal drain. However, if in future a connection with the Elphick Municipal Drain is needed, the upstream landowners will still have an ability to achieve a connection by a petition under section 4 of the Act.

What should be done with the assessments?

Majority Decision of Members Mary Field and Bill Schaefer

• Documentation presented in Exhibits 6 & 7 in the form of photographs, Environment Canada reports on temperature and rainfall beginning 2 days prior to when the photographs were taken, and a flood monitoring/safety bulletin issued by Maitland Valley Conservation Authority, support evidence given by the appellants that surface water is not a problem in the watershed.
• Jeff Gammie gave evidence that there is no flow of water across his property.
• Evidence was given by Linda Sharpin that her property is situated on a gravel base, and by Brian Johnston that all the properties in question are situated on a gravel base.
• The Engineer stated that he was dealing with a sub-surface drainage problem on the Elphick property and was not concerned with periodic ponding.
• On cross examination by Jeff Gammie, the Engineer stated that there was no evidence of any large amounts of surface water flowing across the Gammie property but that he could not accept that the Gammie property should be assessed at $0.
• Exhibit #2 notes that a Court of Revision decision in Schedule A did in fact apply '0' Benefit on the Gammie property.
• The Engineer, in his closing remarks, indicated that adjustments could be made to the benefit assessment on the Gammie property.
• Section 22 of the Act allows for benefit for increased value. The Elphicks have had an on-going issue with water around/near a building on their property and improved drainage will increase the value of their property.
• After deliberation of the above noted evidence, we do not agree with the Engineer's assessment of equal benefit to both the Gammie and Elphick properties, but rather conclude that the Elphick property will be the greater beneficiary of this drainage works.
  

Order of the Tribunal

After consideration of the evidence field and the submission made the Tribunal orders:

1. The Engineer amend the Report as follows:
   1. The recommended drainage works will stop at station 032;
   2. A catchbasin will be installed at station 032 with a grate on the property line.
   3. The Engineer will fix a top elevation for the grate at station 032.
   4. The catchbasin will have a 200 mm stub in the south face.
   5. The outlet assessments will remain as outlined in Exhibit 4, subject to any changes needed resulting from Order #3, below. The benefit assessment will be revised to the following: Elphick: $1800; Gammie: $200; Jarvis: $200; Johnston: $200; Moran $200; and, Sharpin; $200.
2. Once the Report and schedules are amended to reflect Order #1, the Engineer will return the amended Report to the Township.
3. The non-administrative costs of the Town for these appeals shall form part of the drainage works and it is ordered there be no other order of costs and all parties are responsible for their own costs. Attention is drawn to Section 73[vi] of the Drainage Act.
   

Dated at Guelph, Ontario this 23rd day of April, 2008.

Dated at Kirkton, Ontario this 24th day of April, 2008.

Partial Dissent and Reasons by Vice-Chair John O'Kane

I concur with my colleagues on the findings and rulings on issues 1 and 2 but dissent on issue 3. The explanation for my dissenting views on issue 3 follows.

Under section 21 of the Act the Engineer must assess the lands affected by the drainage works for benefit and outlet and injuring liability. There was no assessment in this case for injuring liability so I will omit it from my further comments.
The Engineer's assessment of benefit and outlet is the method used in the Act to share the capital cost of the drainage works as well as fix a formula to share in any future drain maintenance costs.

The Tribunal received the Report (Exhibit 2) into evidence and during his oral evidence the Engineer explained that his approach to assessments was at pages 6 and 7 of the Report.

Section 23(3) of the Act gives the Engineer specific direction about how to assess for outlet liability (emphasis added). The outlet assessment must be based on the rate of water flowing into the drain from the land liable for assessment. At page 7 of the Report the Engineer noted, under the heading "Outlet Assessments":

"The balance of the estimated cost after deducting the benefit assessments is then assessed as outlet liability on a per hectare basis to the lands and roads in the watershed upstream of the works proposed."

However, unlike outlet assessment, the Act does not give the Engineer any specific direction about how to assess for benefit. The Engineer must apply his own skill, judgment and experience to assess benefits. However the Act does provide the Engineer with some guidance about what he should consider when assessing benefit. Paraphrasing the section 1 definition of "Benefit" what the Engineer must consider is the "advantages" to the land that will result in higher market value, improved appearance or better control of surface or subsurface water. (emphasis added)

I see the direction from the Act about benefit assessments as simple. I interpret it this way. If, because of the drain, there will be a higher market value for the parcel of land or an improved appearance of the parcel land or better control of the water on the parcel of land the Engineer must assign a benefit assessment.

Drawing from that section 1 definition I note the Engineer does not assess landowners but rather assesses parcels of land. The Act does not allow the Engineer to base his assessments on any particular landowner's views about the benefits he or she will get from the drain.

The Engineer's "Calculation of Assessments" schedule marked as Exhibit 4 contained a detailed breakdown of the assessments for each of the three sections of the drain: Station 000-032; 032-044; and, 044-056. Exhibit 4 expanded on the cost sharing details of those three sections beyond the original schedule of assessments from Schedule A of the Report.

The Engineer testified the assessments in his Report were fair and reasonable.

The Tribunal heard evidence about the Engineer's experience and qualifications and made a ruling qualifying him to give expert opinion evidence on municipal drainage matters. He was the only witness qualified by the Tribunal to give opinion evidence.

None of the appellants seriously challenged the Engineer's assessments during cross-examination. None of the appellants presented any competing expert assessment evidence. None of the appellants gave any evidence about any alternative approach to the assessments.

The evidence of Johnston, Sharpin, Hare and Gammie was that they felt the assessments made by the Engineer were unfair to them, because they had no drainage problems and would get no benefit from the drain.

Even if I were to reject the Engineer's evidence about the assessments I am still left with no evidence from the appellants about how to share the costs of the drain or what the assessments ought to be.

The Tribunal's decision on an appeal of assessments must rely on the evidence presented rather than picking assessments from the air. Because of this I cannot join with my colleagues in supporting their majority decision on the assessments.

I accept the Engineer's evidence the assessments made are reasonable and fair. I find as a fact the Engineer made his assessments according to the Act. There was no other evidence before the Tribunal on which I could make any other finding of fact.

I also accept the Engineer's evidence that there is a basis for assessing the Gammie property with a benefit of $1,000 even though that property already has an outlet into the watercourse. The benefit, as explained by the Engineer in his oral evidence as well as in the Report is the drain will provide improved control over surface drainage across the Gammie property. The Engineer testified that water from upstream will flow across the Gammie property in a controlled manner into the watercourse through the municipal drain rather than uncontrolled flowing over the surface. I find that to be a sound, reasoned and principled explanation from the Engineer. In my view that is exactly the consideration the Act requires the Engineer to make in assessing benefit.

I would therefore overrule the Court of Revision and restore the original benefit assessment against the Gammie property set out in the Report.

Dated at Brampton, Ontario, this 2nd day of May, 2008.