Highway 93 Drainage Works

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 Morton Menuck and Kim Burnside, Judith McDonald, and Meredith Firth, respectively, in Elmvale, Ontario, and by William O'Halloran, in Mississauga, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Highway No. 93 Drainage Works in the Township of Springwater.

Before:

John O'Kane, Vice Chair; Jack Young, Vice Chair; John Rudics, Member

Appearances:

Tom Pridham, the engineer, on behalf of the Township, the respondent
Andrew Osyany, counsel to the engineer
William O'Halloran, assessed landowner, appellant
Meredith Firth, assessed landowner, appellant
Robert Gott, on behalf of Judith McDonald, assessed landowner, appellant
Jason Harris, on behalf of the Orr Lake Golf Club, assessed landowner
John Van Vorst, drainage engineer on behalf of the Ministry of Transportation
Alan McDonald, assessed landowner

Decision of the Tribunal

This hearing was held in the Township of Springwater Administration Centre, in Minesing, Ontario, on Friday, October 9, 2009.
Ms. Carol Trainor, Director of Corporate Services/Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Overview

The Ministry of Transportation (MTO) petitioned for drainage works under section 4(1)(c) of the Drainage Act (Act) in order to alleviate risks of flooding on provincial Highway No. 93 on the east side of Orr Lake in the Township of Springwater (Township).

The estimated cost of the drainage works is $1,035,000.00.

The Township appointed R.J.Burnside & Associates Limited (Engineer) in accordance with section 8(1) of the Act to prepare an engineer's report on the project. Mr. Tom Pridham, P.Eng., was designated the "engineer in charge of the project" in accordance with section 8(2) of the Act. The report titled the "Highway No. 93 Drainage Works"is dated February 3, 2009 (Report). In the Report, the engineer apportioned the estimated costs of the proposed drainage works among the lands located within the watersheds in a "Construction Assessment Schedule". The Engineer's cost apportionment is generally described as the "assessment".

Four landowners with properties in the upper parts of one of the watersheds appealed to the Tribunal under section 54 of the Act from the Court of Revision decision of April 24th, 2009. The four landowners all complained the assessments against their lands are too high.

The following table identifies the four appellant landowners, their land by roll number and acreage, and the respective assessments in issue, all extracted from the Report.

Mr. Menuck and Ms. Burnside did not appear at the hearing but did file as part of their appeal copies of their April 13th, 2009 submission to the Court of Revision.

Preliminary Matters

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.
The Clerk of the Township filed an affidavit of service proving that all assessed landowners on the Highway No. 93 Drain had notice of the hearing, and satisfied the Tribunal that the requirements of section 99 of the Act were met.
At the hearing, no other landowners asked for party status.

Background

Tom Pridham, the drainage engineer who prepared the Report, presented an overview of the project. During his evidence, with the consent of the appellants in attendance, the Tribunal qualified Mr. Pridham as an expert in drainage matters to give the Tribunal opinion evidence in that discipline.

Mr. Pridham testified that during a significant rain event on May 24th, 2004, water runoff in the highway ditches overtopped the ditch banks and flooded Highway No. 93.

Public safety concerns about that event resulted in the MTO drainage petition.
The Engineer investigated the area of Highway No. 93 affected by the flooding and determined that six highway culvert crossings were involved. The Engineer indentified five watershed areas that drained through those six culverts and under Highway No. 93 into Orr Lake.

The lands of Menuck, McDonald, Firth and the bulk of the O'Halloran lands all drain as part of a single 166.2 hectare watershed into culvert #9 as designated by the Engineer. A small (0.4 hectare) piece of the O'Halloran land drains as part of a different watershed into culvert #7.

The Engineer described the overall topography of the watershed as relatively dramatic with about seventy-five metres of fall between the upper watershed area and Orr Lake. He described the lands in the upper watershed, which includes the lands of the appellants, as similar: not intensely agricultural although some historic pasture lands being reforested; not much artificial drainage; hilly bush area with a number of natural watercourses; light sandy loam soils.

The Assessments in Issue

The Engineer testified that his first task in the apportionment of the cost of the work and the assessments to lands is to decide the "outlet/benefit" split.

"Benefit" is a defined term under the Act. Generally, it means the advantages to land resulting from the drainage works such as higher market value or increased crop production or improved appearance or better control of surface or sub-surface water or any other advantages relating to the betterment of land.
The Engineer explained that the appellants were not assessed for "benefit" but all assessed for "outlet" liability under section 23 of the Act .

The Engineer testified that he assessed any land that puts water into a drainage works for part of the cost of the works as outlet liability under section 23.

Although all the appellants questioned how much water from their lands would drain into the proposed drainage works, there is no doubt that water from their lands does drain into the existing culverts and will drain into the proposed drainage works. It is our view there is no doubt of that fact for several reasons:

1. No party challenged the watershed areas defined by the Engineer.
2. All the appellants and the Engineer agreed about the natural topography of the lands in the watershed. That Watershed Plan at Figure 1 of the Report depicts that natural topography.
3. The Engineer testified that by using digital terrain-mapping and 3-D computer modeling software he is able to plot with certainty where water drains after falling on the land. The Engineer demonstrated the results with a PowerPoint slide used as part of his evidence. A hard copy of that presentation including the digital terrain-mapping slide was marked as Exhibit 14 at the hearing.
   

Therefore, we find as a fact that the appellants' lands will, directly or indirectly, use the proposed drainage works as an outlet for water flowing from those lands. As a result, the appellants' lands are liable for outlet liability under section 23.

The estimated drainage work costs specific to culvert #9 was $390,000.00, with $90,000 of that for works below Highway No. 93 and $300,000 for works above Highway No. 93.

The Engineer described this drain as a "benefit" drain and testified that in his professional opinion, Highway No. 93 and the lands immediately adjacent to Highway No. 93 would receive the most significant advantages of the drainage works and therefore for the drain work above Highway No. 93, the "outlet/benefit" split was 7.5% (outlet) / 92.5% (benefit).

The Engineer's opinion was that of the lands receiving a "benefit" from the drainage works, Highway No. 93 was the principle beneficiary and therefore the "benefit" was further apportioned 82.5% to Highway No. 93 and 10% to the immediately adjacent lands. The table below shows the explanation of the Engineer's assessment split.

As seen from the table, $22,500.00 of the costs of the drainage works was to be apportioned as outlet liability among all lands in the watershed above Highway No. 93. In section 23(3) of the Act, the Engineer is directed to make the apportionment based on "the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads liable for such assessments."

The Engineer testified that in his professional experience assessment for outlet liability is a relative exercise and not a matter of absolutes. He began by considering the nature and types of lands within the watershed to develop a rating for the lands. He determined that the lands in the upper watershed, including the lands of the appellants, would be used as a baseline to which he assigned a runoff factor of 1.0. He then assigned a runoff factor of 1.5 to the lands of a golf course within the watershed. He explained that the golf course lands, which were cleared and manicured, would put more water into the drain than the bush lands in the upper watershed. He assigned a runoff factor of 3.0 to local roads on the theory that they were less permeable than either the golf course or the bush lands, and would contribute that much more water to the drain. He assigned a runoff factor of 5.0 to Highway No. 93 on the theory that the rate of runoff from the highway would be the highest.

The result of the Engineer's apportionment was that the lands in the upper watershed were all assessed for outlet liability at the same rate of $134.59 per hectare. The only exception is the small (1.4 ha.) portion of the O'Halloran land that drains into culvert #7 and a small (0.7 ha.) portion of the Menuck/Burnside land. The Engineer assessed the small Menuck/Burnside parcel based on his determination that there should be a minimum assessment of $200.

Issues Raised in the Appeals

While all five appellants challenge the amounts assessed against their lands as too high, there are variations in the themes of the appeals.

1. Requirement for the Drainage Works

Several appellants questioned the need for the drainage works. Some questioned if the highway was ever really flooded. One suggested the flood was due in part to water released from a beaver dam. Several suggested that if the road ditches had been properly maintained, no drainage works would have been necessary. All appellants at the hearing accused the landowners downstream of Highway No. 93 of changing lot grading and that was a contributing cause of the drainage issues.

The appeals before the Tribunal were all appeals from the Court of Revision under section 54 of the Act. Under section 52 of the Act, the only issue the Court of Revision deals with is the assessments arising from the Engineer's Report. Therefore, in appeals such as these under section 54 of the Act, the Tribunal's jurisdiction is restricted to the matter of the assessments.

As a result, none of the issues the appellants raised about the need for the drainage works, the cause of the flooding, poor ditch maintenance or other factors contributing to the highway flooding are relevant to a determination of the proper assessments.

As a matter of jurisdiction, we conclude the requirement for the drainage works is not properly before the Tribunal.

2. Riparian Right of Exemption

Two of the appellants argued that because their lands drain into natural watercourses, they should be exempt from assessment under the Act.

The appellants and the Engineer gave the Tribunal copies of two competing authorities from the Drainage Referee on this point: Belzner, et al. v. Corporation of the Town of Dunnville (1992); Town of Bradford West-Gwillimbury v. Township of King, et al. (2002).

The Tribunal concludes the decision of the Drainage Referee in the latter case (Town of Bradford West-Gwillimbury) is the correct interpretation of section 23 of the Act as summarized in the Referee's conclusion at page 29 of that decision:

It is thus clear beyond all doubt that there is no exception of assessment for riparian owners under the terms of the Ontario Drainage Act. If such were the case, not only would it be highly inequitable in result, but it would be almost impossible in application.

The wording of the Act does not support any suggestion of exemption from outlet liability where lands put water into a drainage work.

As demonstrated by the Engineer's evidence about drainage in the watershed, even though some of the appellant's lands drained into natural watercourses, those natural watercourses eventually drained through the proposed drainage works into Orr Lake. Therefore, using the words of section 23 of the Act, we find as a fact that the appellants' lands "directly or indirectly" use the drainage works as an outlet.

The result is that under the clear language of the Act, the appellants' lands are liable for outlet assessment.

3. Fairness and Reasonableness of the Assessments

The Act gives the Engineer very little guidance and direction about how to carry out the Engineer's duty to "assess for benefit, outlet liability and injuring liability".

The Engineer testified he used a variation of the "Todgham" assessment method, named for the drainage engineer who codified his approach to assessment many years ago. This Tribunal has accepted that assessment method many times. However, that does not mean the Todgham approach is the only acceptable approach to assessment.

Ms. Firth filed a copy of an article entitled "Drainage Assessment Revisited" authored by E.P Dries and H.H. Todgham, both professional engineers. That article reviewed the duties of a drainage engineer under the Act. The authors convincingly argue that the ultimate test for any schedule of assessment in a drainage report is this:

Is it fair to all concerned? Can I compare the assessments on any two properties (either neighbouring or in remote parts of the watershed) and say that, relatively speaking, they are being fairly charged for the value they will derive?

The Engineer noted in the last paragraph of page 29 of the Report that "In our opinion the allocations used and the assessments applied are reasonable and properly reflect how the costs of the work should appear when distributed."
The Tribunal does not question that the Engineer used a reasonable approach to developing the assessments however, in our view, the key issue raised in these appeals is whether, in the context of this drainage works, the appellants' assessments are fair.

We adopt the "ultimate test" articulated above by Messrs. Dries and Todgham as the correct yardstick in these appeals.

The evidence of the Engineer, Ms. Firth, Mr. O'Halloran and Ms. McDonald's spouse Mr. Gott was all consistent about the land type and land use in the upper part of the watershed. They characterized the lands as hilly bush with a number of natural watercourses; light sandy loam soils; not intensely agricultural; and not much artificial drainage. Therefore, based on that uncontradicted evidence we find as a fact that those describe the land characteristics and use. The Engineer provided the only evidence about the Menuck/Burnside lands and it too is consistent with this description.

Both Ms. Firth and Mr. Gott testified that they accepted their lands should be assessed on the drain, however they challenged the amount. They both testified that the assessment ought to be around $500. Mr. O'Halloran testified his lands should not be assessed at all.

Mr. Gott's position was the McDonald lands should be assessed similarly to his neighbor Mr. Niels, who was assessed $539.00. However, that neighbor's assessment was the very same rate per acre as the McDonald land. The difference in their respective assessments was due entirely to the size of land within the watershed.

Ms. Firth's position was her assessment should be $50 per acre or about one-third the rate of the golf course due to the difference in the nature of the lands. However, she believed that assessment should only apply to about ten acres of her land and the balance should be exempt. She based her exemption theory on her rights as a riparian landowner draining into a natural watercourse and her property enjoying status, in part, as a "managed forest". We have already determined that the Act does not create any exemption from assessment. If land puts water into a drainage works, it is liable for outlet assessment. The lands of riparian owners and managed forests are not exempt.

Based on the Engineer's largely unchallenged and uncontradicted evidence we make the following findings of fact:

• After the drainage works, the appellants in the upper watershed would not see any difference on their lands.
• The lands adjacent to Highway No. 93 will enjoy the real advantages of the proposed drainage works.

  • Those properties that previously were subject to flooding will be protected from floods enhancing the owners use and enjoyment and increasing the land value.
  • Road safety will be increased with the flooding risk averted.
  • Water drainage around the highway that previously was subject to the vagaries of the common-law will enjoy legal status as a municipal drain.
  • Maintenance of the drain will become a municipal responsibility and no longer be subject to poor neighbours or trespass.

• The upper watershed lands will enjoy the advantage of a legal drainage outlet after the drainage works.

In the context of these facts, when we apply the "relative value" test described by Dries and Todgham in the following table between the assessments of lands adjacent to Highway No. 93 to those "remote" lands of the appellants in the upper watershed we find as a fact that the assessments of the appellants' lands are not fair.

As illustrated above, the appellants will pay a little more than 50% of what the properties adjacent to Highway No. 93 will pay. However, we find it difficult to see how the appellants will receive one-half the relative value received by the properties adjacent to Highway No. 93. In fact, when we consider the several facts related to value bulleted above, we find as a fact that once the drainage works is complete, the appellants will receive less than half the value the landowners adjacent to the works will receive.

To address the unfairness in the assessments we start with the Engineer's approach to the factors applied to the various land types and uses.

While we agree with the Engineer's approach, we find that he erred using a runoff factor of 1.0 for the lands in the upper watershed. The relative mark-up factors of 1.5, 3.0 and 5.0 referred to on page 29 of the Report are generally based on cleared agricultural land having a runoff factor of 1.0. Because of our previous findings about the physical characteristics and use of those lands we find that it is more appropriate to apply a runoff factor of 0.7 to the appellants' lands rather than the runoff factor of 1.0 applied by the Engineer.

However, to be consistent and fair to all, the use of a runoff factor of 0.7 for the hilly bush lands in the upper watershed should be applied uniformly to lands of three landowners who did not appeal (Ericson - Roll # 9-200-00, Niels - Roll # 9-164-00 and Bailey - Roll# 9-206-00). Although those landowners did not appeal, their assessments are open in this appeal and are subject to alteration. In this case, they will benefit from their neighbours' appeals.

As a result, the assessment of the lands in the upper watershed, including the appellants, will be reduced as shown on the table below.

We do not find it appropriate to change any minimum assessment. This means the minimum assessment of $200 applying to part of the lands of both Menuck/Burnside and O'Halloran will remain at $200.00.
The Highway No. 93 benefit assessment will increase correspondingly by the difference as shown below. The reason we add the difference to the highway is it will receive the most significant advantages resulting from the drainage works.

Order of the Tribunal

For the reasons cited above, the Tribunal orders that:

1. The appeals of Menuck/Burnside, McDonald, Firth and O'Halloran are granted in part.
2. The Engineer is directed to amend the assessments in Construction Assessment Schedule at pages 22 to 25 of the Report according to the following table:

   Roll #	Owner	Con./Lot	Benefit $	Outlet $	Total $
   9-164-00	Niels	1/Pt. 69-70		377.00	377.00
   9-200-00	Ericson	1/Pt. 69		1,366.00	1,366.00
   9-201-00	Menuck/Burnside	1/Pt. 69-70		1,667.00	1,667.00
   9-201-00	Menuck/Burnside	1/Pt. 70		200.00	200.00
   9-202-00	McDonald	1/Pt. 69		1,790.00	1,790.00
   9-203-00	Firth	1/Pt. 69		1,884.00	1,884.00
   9-205-00	O'Halloran	1/Pt. 70		2,022.00	2,022.00
   9-206-00	Bailey	1/Pt. 68		1,812.00	1,812.00
   Highway No. 93			502,844.00	1,520.00	504,364.00

3. The non-administrative costs of the Township for these appeals shall form part of the drainage works.
4. There will be no other order of costs and all parties are responsible for their own costs.

Dated at Brampton, Ontario this 18th day of November, 2009.