Hambly Sabourin & Beach Beaulac Municipal Drains- July 21-22, 2010 Hearing Decision

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 Sylvain Gauthier, in Thornloe, Ontario; Garry Beach, in Belle Vallée, Ontario; and Richard Gosselin, in Brethour, Ontario, under Section 64 of the Drainage Act from quality of construction of the Hambly Sabourin & Beaulac-Beach Municipal Drains in the Township of Brethour.

Before: John O'Kane, Vice-Chair; Jack Young, Vice-Chair; Claire Belluz, Member

Appearances:
Sylvain and Misty Gauthier - Appellant and landowner
Garry and Marjorie Beach- Appellant and landowner
Al Frasier- Representative for Garry Beach
Paul Courey- Counsel for the Township
Ken Smart- Engineer, K. Smart Associates Limited
Garth Knoecker- Drainage Superintendent
Claude Bordeleau- French Interpreter
Pam Bennewies- Clerk/Treasurer for Township and clerk for the hearing
Interested Landowners- Ed Dane, Ken and Evelyn Hambly, Jacqueline and Steven Connelly, Allan Scott and Mrs. Scott.

Reasons for Decision

Three Drainage appeals under section 64 of the Drainage Act were scheduled by Tribunal Order for a hearing to begin on July 21st, 2010 and continue on July 22nd, 2010. Appeals under s. 64 of the Act relate to complaints about the quality of construction of a drainage works.

The appeals of Garry Beach and Sylvain Gauthier proceeded as ordered and will be dealt with together in these reasons for decision. For the reasons that follow, the appeals of Garry Beach and Sylvain Gauthier are in part, granted.

The third appellant, Richard Gosselin, and his lawyer, Ms. Lisa Neil, did not appear for the scheduled appeal hearing. Therefore, the Tribunal will release separate reasons for decision, in respect of Richard Gosselin's appeal.

Background

The Hambly Sabourin Beaulac-Beach Drain consists of repairs and improvements made under section 78 of the Act to two existing and related municipal drains: the Hambly Sabourin Drain established in 1980, and the Beaulac-Beach Drain established in 1981.

In 2000, in response to complaints from some landowners about the drains, the Township of Brethour (the Township) appointed drainage engineer K. Smart Associates Limited under the Act to report on repairs and improvements. Ken Smart (the Engineer), a professional engineer with that firm, had overall responsibility for the report and the drainage works since that time. The Engineer delivered a preliminary report in June 2001 and a revised report in July 2002 (collectively, the Report). A number of appeal proceedings under the Act followed the delivery of the Report.

The construction tenders received for the drainage works proposed in the Report exceeded the Engineer's estimates as set out in the Report by more than 133%. As a result, the Township held a further public meeting in February 2006 under s. 59 of the Act to consider the increased costs of the drainage works. Despite the increased cost of construction, the Township, with input from the landowners, decided to proceed with the drainage works.

The construction work was to begin and finish during the summer season of 2006. However, while construction began then, it was not substantially completed until 2009.

The contractor that was awarded the construction contract began to work but did not finish and then subsequently abandoned the project part way through. The Township hired a second contractor to step in to complete the project.

The construction work called for in the Report for the Gauthier and the Beach properties has been completed by the second contractor, but not to the satisfaction of Sylvain Gauthier and Garry Beach.

Sylvain Gauthier's Issues

Sylvain Gauthier's property is in Lot 10 north of the Townline Road. The Beaulac-Beach Drain as originally designed and constructed in 1982 follows Sylvain Gauthier's northern property line in an east to west direction.

Issue No. 1 - Drain Maintenance

Sylvain Gauthier testified that he wants his section of the drain to be cleaned and maintained. The Tribunal accepts his testimony that since 2005 he has asked the Township several times verbally and then in writing to clean and maintain the drain. He presented photographic evidence that indicates the drain along his property line requires maintenance work (Exhibit No. 5). He testified that his land suffered flooding due to beaver dams and debris along the drain on his property. However, he conceded in cross-examination that he was not suggesting there was anything called for in the Report that had not been done.

The Engineer testified that under the Report, there was no significant work to be done along the Beaulac-Beach drain in Lot 10. The Tribunal accepts his testimony that when the initial preparation work was done for the Report, Sylvain Gauthier's predecessors on the property specifically declined to have any work done in that area of the drain. The Tribunal accepts the Engineer's evidence that as a result, the Report did not provide for any significant work on the Beaulac-Beach Drain in Lot 10.

Therefore, while Sylvain Gauthier appears to have legitimate maintenance issues, those maintenance issues are not within the Tribunal's jurisdiction to address in an appeal under s. 64 of the Act. Those maintenance issues arise under the 1981 Beaulac-Beach Drain Report. Therefore, the Tribunal cannot grant Sylvain Gauthier relief about his drain maintenance issues under s. 64 of the Act.

However, the Township did call evidence from Garth Knoeker, the Township's Drainage Superintendent, who advised that maintenance of the Beaulac-Beach Drain in Lot 9 and 10 is scheduled to be completed during the summer of 2010. Hopefully, that planned maintenance will alleviate Sylvain Gauthier's concerns related to drain maintenance.

Issue No. 2 - Construction Access

Sylvain Gauthier also raised an issue about damage to a hay field and culvert resulting from the contractor's equipment that crossed his property to access the northwest corner of the Beach property in Lot 11 where a drain crossing was to be constructed.

The Report provided for several possible routes for construction access, one of which was across the Gauthier property.

The Tribunal accepts Sylvain Gauthier's evidence that the contractor deviated from the intended access route across his pasture and instead crossed a hay field. The heavy construction equipment crushed a 1' by 16' field culvert that Sylvain Gauthier had to replace. The heavy construction equipment also compacted a swath through the Gauthier hay field resulting in decreased hay yield from that field.

The Township's witnesses did not dispute the damage to Sylvain Gauthier's field culvert and Garth Knoeker confirmed the damage to the hay field.

The Tribunal is satisfied that the contractor deviated from the intended construction access route and caused damage to Sylvain Gauthier's culvert and hay crop, which is a quality of construction issue under s. 64 of the Act.

The Tribunal accepts Sylvain Gauthier's candid evidence that he replaced the crushed culvert with a used culvert he had on the farm. Therefore, he did not suffer any out of pocket expense although he expended his own labour to dig out the crushed culvert and install the used replacement culvert.

The Tribunal is not satisfied that the evidence from either Sylvain Gauthier or the Township is conclusive about the value of the loss in the hay yield.

The Tribunal notes that the Report called for the owner of Lot 10 (now Sylvain Gauthier) to receive an allowance under s. 30 of the Act of $700 for use of an access route to the drain for construction.

In all the circumstances, and given the access allowance of $700 already provided for in the Report, the Tribunal is satisfied that Sylvain Gauthier should receive an additional $500 that will form part of the overall cost of the drain. The Tribunal's reasons include the following:

" Sylvain Gauthier agreed to facilitate construction access across his property to access the Beach culvert crossing work when soil conditions were unfavourable to permit access elsewhere;
" The contractor deviated from the access route shown on the Report plans causing the damage to both the field crossing culvert and the hay crop.

Garry Beach's Issues

Garry Beach's property is in Lot 11 north of Townline Road and immediately west of the Ontario-Quebec border. The drainage works contemplated in the Report are at the eastern most end of the Beaulac-Beach Drain and extend about 23 metres onto the Beach property. A natural watercourse across the Beach property collects water flowing out of the province of Quebec to the east and north, and conveys the water to the Beaulac-Beach Drain.

Issue No. 1-Fences

Al Frasier and Garry Beach testified that the contractor removed portions of two fences on the Beach property during construction of the Beach culvert crossing.

The Engineer testified that Don Lacko, an employee of the Engineer supervised construction under the Report. Unfortunately, Mr. Lacko is suffering from a serious illness and was unable to testify. The Engineer testified using Don Lacko's field notes and information he received from Don Lacko in e-mails or conversations. The Engineer testified that Don Lacko advised him that no fencing was removed as part of the construction works in the Report.

A. The Property Line Fence

Al Frasier and Garry Beach testified that about 300' of the property line fence was removed during construction and not replaced. The property line fence separates Garry Beach's property from Sylvain Gauthier's property. No party called any evidence about which landowner (Beach or Gauthier) installed or maintained the property line fence.

The Tribunal cannot reconcile the Engineer's second hand evidence derived from Don Lacko's information with the evidence from Al Frasier and Garry Beach, coupled with drawing 4 from the Report that shows a property line fence just east of station 1+587 running in a north-south direction between the Beach property and what is now the Gauthier property.

The contractor traversed the Gauthier property from the west to access the area on the Beach property where the Beach culvert crossing was to be constructed. The property line fence shown on drawing 4 would, of necessity, have to have been removed for passage of the construction equipment. After weighing the evidence about the property line fence, the Tribunal is satisfied that a portion of the property line fence was removed during construction and not replaced following construction.

The Report provided that any fences removed for construction were to be replaced. Therefore, the Tribunal will direct the Engineer to require that the contractor arrange for re-construction of the missing portion (approximately 300') of the lot-line fence as shown on drawing 4 of the Report. As an alternative, the contractor, the Engineer, and the landowners may negotiate a suitable arrangement for the landowners to receive a sum of money to re-construct the missing section of property line fence.

B. The Internal Fence

Al Frasier and Garry Beach testified that an internal fence that ran in an east-west direction along a laneway upstream of the site of the Beach culvert crossing was removed as part of the contractor's work to remove a bank over which the laneway passed.

The Engineer, Al Frasier and Garry Beach all testified that one of the contractors completed some bank excavation work for Garry Beach. That bank excavation was work that Garry Beach privately arranged with the contractor and it was not part of the work under the Report. The Engineer's evidence was the internal fence must have been removed as part of that private bank excavation work since that internal fence ran alongside the bank. Al Frasier and Garry Beach's evidence was that the private bank excavation work took place elsewhere on the Beach property although where specifically was never identified. Al Frasier and Garry Beach testified the contractor removed the internal fence upstream of the culvert crossing when the bank was excavated to provide the contractor's machinery with suitable access to the culvert-crossing site.

The Tribunal considers that in the context of this particular issue, the Report provides more compelling and convincing evidence to resolve the internal fence issue. The Report drawings do not show the internal fence, nor do the Report drawings show the bank. The Report does not call for any construction work on the bank or the laneway in the area of the bank.

Therefore, Garry Beach has not proved to the Tribunal's satisfaction that the construction work under the Report involved removing the internal fence.

Issue No. 2-Seeding

Al Frasier testified that the Report provided that, in addition to construction at the Beach culvert crossing, there was to be 100 metres of channel improvement downstream of the Beach culvert. He also testified that the contractor did not do 100 metres of channel improvements and specifically did not slope and re-seed the channel banks downstream of the Beach culvert crossing. It appears from the Report specifications that about 14 metres of that channel work was on the Beach property and about 86 metres was on the Gauthier property.

Al Frasier provided photographs of the downstream channel area that he suggested showed very little channel improvement and no re-seeding (Exhibit No. 2, photo #5).

The Report specifications for the downstream channel on the Beach property are:

G. Beach (Roll No. 1-030)
1+587 to 1+601

- 14 m bottom cleanout and levelling
- Provide 1.2 m bottom and 1.5:1 side slopes
- Work on south side and level on south side

The Report also specified the following about seeding:

8. Seeding

Seeding shall be done of any new banks and shall take place on the same day as excavation wherever possible and in accordance with the Standard Specifications....

There was no evidence of the contractor seeding the channel banks on the Beach property, downstream of the Beach culvert crossing. However, Al Frasier's photographs illustrate that the channel banks are heavily covered in grassy vegetation (Exhibit #2, Photos #1, #5).

The Tribunal accepts the Township's evidence that the banks of the channel on the Beach property are now well vegetated.

The Tribunal finds that reseeding of the channel banks at this time on the Beach property would be an unnecessary waste of scarce resources on this drainage project. The seeding is to prevent erosion of the channel banks and to provide a natural filter for water entering the channel. The existing vegetation shown in Al Frasier's photographs already serves both those purposes.

Therefore, the Tribunal concludes that despite the lack of seeding on the channel banks on the Beach property, there is no hardship, loss or harm to Garry Beach and the Tribunal declines to make any order about the seeding issue.

Issue No. 3-Working Corridor

Al Frasier testified that the Report required the contractor to level any excavated material along the working corridor on either side of the drain. He introduced photographs contrasting the levelled working corridor along the west side of Lot 8 (Exhibit No. 2, Photo #2) with the very uneven working corridor on Lot 9.

The Township's evidence was that the uneven area alongside the drain on Lot 9 was not part of the work completed under the Report, but rather was the result of drain maintenance completed by the Township's Drainage Superintendent under the original 1981 Beaulac-Beach Report.

There was no evidence that there is any unlevelled working corridor conditions on the Beach property. There was no evidence that any unlevelled working corridor conditions downstream of the Beach property created any adverse effect, loss or harm to Garry Beach.

The Tribunal is not satisfied on a balance of probabilities that the unlevelled working corridor conditions on Lot 9 that Al Frasier testified to were because of work done under the Report.

Therefore, the Tribunal declines to make any order about Garry Beach's issue concerning the working corridor.

Issue No. 4-Townline Road Access Culvert

The Report provided for several construction access routes. One such route was across Garry Beach's property. While the evidence is far from clear, it appears that Garry Beach asked the contractor not to use the designated access route across his property since it would bring the contractor's equipment close to his farm buildings under wet soil conditions.

The contractor, under Don Lacko's direction, installed an alternate access onto the Beach property by installing a new culvert in the road ditch on the north side of Townline Road. The evidence is unclear about whether Garry Beach was involved in the decision to install that new access route. The culvert was installed in the road ditch, which is Township property.

The real issue on appeal arises because the contractor did not use the alternate access onto the Beach property when construction commenced. The Township's evidence as well as Al Frasier's evidence was that the fields on the Beach property were far too wet for heavy construction traffic when construction started. As a result, the contractor used an alternate access route through Sylvain Gauthier's property.

However, the question on this appeal becomes who should pay for the cost of the unused road ditch access culvert adjacent to the Beach property.

The Tribunal finds that it was appropriate for the Township and contractor to look for an alternate access onto the Beach property when Garry Beach asked that the construction traffic by-pass his farm buildings. The Tribunal finds that it was appropriate to construct that access onto the Beach property using a road ditch culvert. It follows in the Tribunal's analysis that the cost of that additional access is a legitimate extra to the project.

The Engineer testified that his view about the cost of that road ditch was that it should be apportioned 50% to the cost of the drain and 50% to the Township since the Township could later remove the access and recover some salvage value.

In the circumstances, the Tribunal finds that it would be inappropriate to criticize the Township and the contractor over the alternate road access simply because the field conditions at construction time made that access unusable. However, the Tribunal also finds that it would be equally inappropriate to burden the landowners with 100% of the cost of the alternate access, given that the Township could recover some salvage value.

Therefore, the Tribunal concludes that 50% of the cost of the alternate access will be charged to the drain and 50% will be charged to the Township. For clarification, the Tribunal makes no order that the Township remove the access. The decision to remove the access or maintain the access remains solely with the Township.

Issue No. 5-Channel Excavation and Rip-Rap

Al Frasier testified that the contractor did not clean out the channel downstream of the Beach culvert crossing as called for in the Report. He also testified the contractor did not place the required "rip-rap" or heavy stones along the channel banks and bottom, downstream of the Beach culvert crossing. He also testified that there was an apparent lack of filter cloth beneath the rip-rap. He testified that the rip-rap is intended to provide a solid diversion for water flowing into and out of the culverts at the crossing. Al Frasier testified that because of the absence of rip-rap and the filter cloth, the culvert is deteriorating.

The Report called for rip-rap to be placed 3 metres to the north and south sides of the Beach Culvert crossing to create a splash pad, as well as an additional 13 metres of rip-rap along the north bank of the downstream channel.

The Engineer testified that Don Lacko advised him that the channel excavation and the rip-rap had been completed in accordance with the Report. However, he conceded that when reviewing the photographic evidence presented by Al Frasier, it was difficult to be certain the channel excavation and rip-rap had been completed (Exhibit No. 2, photo #1, #5, #S-7, #S-8).

The Engineer testified that because work on the Beach culvert crossing had been done twice, once by the first contractor and then again by the second contractor, it was possible that some of the original rip-rap placement was disturbed.

Counsel for the Township in submissions conceded the issue of the rip-rap was perplexing since the photographic evidence suggests the rip-rap is not there. His suggestion was to leave that issue to be addressed as maintenance planned for later this summer. He went on to indicate that if the required rip-rap is not there, it should be put there and at no cost to the drain project. By that the Tribunal concludes it would be dealt with as a contractual deficiency between the Township and the contractor responsible for the deficiency.

The Tribunal finds the evidence inconclusive regarding the channel work and the rip-rap adjacent to the Beach culvert crossing. The Tribunal disagrees with the Township's suggestion to leave the issue to be addressed as maintenance. The Tribunal views the issue as a quality of construction issue under s. 64 of the Act. Therefore, the Tribunal directs the Engineer to inspect the Beach culvert crossing to ascertain the status of the channel work and the upstream and downstream rip-rap and filter cloth and, as necessary, to direct repairs to the channel, rip-rap and filter cloth.

Issue No. 6-Culvert Placement

Al Frasier raised an issue related to the placement of the two culverts arising from the twice re-constructed Beach culvert crossing.

The Report specifications called for a 1200 mm culvert to be added through the crossing as a "helper" pipe for the existing 1500 mm pipe that was also to be extended as part of the Report work. The placement of the helper pipe was to be approximately 100 mm higher than that of the existing pipe.

The Tribunal qualified the Engineer as an expert to give opinion evidence in respect of drainage engineering, drainage works and the processes and responsibilities of drainage engineers under the Act.

The Engineer testified that his original design for the Beach culvert crossing was to install the helper pipe in the location of an existing washout through the crossing. He testified that his primary design objective with respect to the helper pipe placement was to place the pipe on a good base and his opinion was that a good base would be about 100 mm higher than the existing pipe.

The Engineer testified that after the first contractor abandoned the work and the new contractor arrived with Don Lacko to complete the Beach culvert crossing, they encountered several problems at the crossing. The details of those problems are in an excerpt from Don Lacko's field notes included at page 16 of Beach Exhibit No. 2. Both the existing 1500 mm extended pipe and the 1200 mm pipe were badly damaged.

The Engineer made the decision that both pipes had to be replaced, necessitating the re-construction carried out by the second contractor. The pipes were replaced with pipes that were slightly longer and a 1600 mm pipe was installed rather than the 1500 mm design.

However, it is clear from photographs take by Garry Beach (Exhibit No. 2, photos #1, #S-1 to S-4) that the new helper pipe is not installed 100 mm higher than the new bigger pipe.

The engineering evidence from the Engineer was that the original design placement of the helper pipe was only to fit into the existing washout. Since the crossing was being completely re-done the second time, the pipes could be placed essentially side by side without any impairment in the culverts' function or capacity.

There was no evidence lead about the elevation of the culverts in relation to the elevations in the design drawings.

The expert evidence of the Engineer, that the Tribunal accepts, is that while the culvert placement is not exactly as originally designed, it still functions as intended and it is functioning well. The overall end area of the pipes is slightly larger, capable of conveying water through the crossing as designed.

Therefore, the Tribunal finds that there is no reason to re-construct the Beach culvert crossing a third time, simply to achieve the placement of the helper pipe approximately 100 mm above the existing pipe. To do that would require slavish adherence to the design specifications. That level of adherence is not only unnecessary in these circumstances, it is quite uncommon when construction designs are executed in real world conditions in the field.

Al Frasier also raised an issue about the costs of the Beach culvert crossing using several invoices and payment certificates. The point of that evidence was to suggest the Beach culvert crossing work was re-done twice and paid for four times. While the Tribunal is not convinced that the project costs and payment issues necessarily fall within a quality of construction appeal under s. 64 of the Act, we considered Al Frasier's evidence under this issue.

The Engineer's evidence was that the first contractor had not been paid for its work on the Beach culvert crossing because it had not completed the work. After that contractor abandoned the project and the several deficiencies were uncovered at the Beach culvert crossing, some extra work was approved such as longer and newer culverts and one larger pipe.

Therefore, after considering all the evidence about the project costs and payment for the Beach culvert crossing, the Tribunal is satisfied that the landowners on the drain will only pay for the Report work and the approved extra work once.

Issue No. 7-Culvert Crossing Concrete Deck

Al Frasier presented considerable oral, photographic and material evidence that sections of the concrete deck placed over the Beach culvert crossing had failed and broken away. He also presented evidence that demonstrated that in some parts of the concrete deck, the specified design thickness for the concrete was not achieved.

The Engineer testified that where the concrete had failed and broken away appeared to him to be where the concrete was thinner than the design specification. He testified that the contractor would be required to address those failures under the contractor's warranty. He confirmed that those concrete repairs would be completed at no cost to the drain as they were warranty items.

Al Frasier and Garry Beach testified that after the second contractor re-built the Beach crossing the concrete deck was not constructed for what amounted to two seasons. Through those two seasons, the crossing was simply the rough rip-rap. Garry Beach was reluctant to use the crossing in that state because the sharp rip-rap presented a risk of puncturing his equipment tires and the crossing was so uneven he was concerned about tipping over heavy loads while crossing.

Garry Beach testified that he could not access about 30 acres of hay fields for two years because of what he considered an impassable crossing.

There was no evidence from Al Frasier or Garry Beach about the value of the lost hay crops. The Township did lead evidence about the value of hay crops from Garth Knoeker, who is also a farmer as well as the Drainage Superintendent. The Township's evidence was that round hay bales could fetch $25 and an acre could yield about five round bales.

The Report drawings derived from the Engineer's examination of aerial photos show only 13 acres of fields upstream of the Beach crossing.

While they suggested it during argument, Garry Beach and Al Frasier did not testify that there had been any field clearing upstream of the drain crossing between 2001 and the construction of the crossing.

In the circumstances, the Tribunal is satisfied that the Report drawing depicting 13 acres of upstream fields to be the most accurate evidence of that area.

Based on the evidence, the hay crop loss from that field area would translate to $1,625 each year for two years. The total crop loss would be $3,250. However, there are several other considerations applicable when determining the appropriate level of compensation for Garry Beach arising from the construction of the crossing.

Garry Beach had no input costs for the 13 acres of unused field for two years. He also had no production or harvesting costs for those fields for two years. Further, he did not do anything to mitigate the potential losses, such as put the Township on notice or level the crossing surface with gravel.

In the result, the Tribunal concludes that while Garry Beach deserves compensation, the evidence satisfies us that the potential $3,250 loss must be discounted. Therefore, the Tribunal concludes that the appropriate compensation for Garry Beach is $800, which will be charged as part of the costs of the drain project.

Order of the Tribunal

Therefore, the Tribunal Orders:

1. Sylvain Gauthier will receive additional compensation for culvert and hay crop loss of $500.00. The cost of this compensation will form part of the overall costs of the drain.
2. The Tribunal directs the Engineer to require the contractor to arrange re-construction of the missing portion (approximately 300') of the lot-line fence as shown on Report drawing number 4. As an alternative, the contractor, the Engineer, and the landowners may negotiate a suitable arrangement for the landowners to receive a sum of money to re-construct the missing section of property line fence. There will be no cost to the drain as a result of this requirement.
3. The Tribunal directs the Engineer to apportion the costs of the road ditch access onto Garry Beach's property 50% to the costs of the drain and 50% to the Township. The Township is at liberty to remove the road ditch access culvert.
4. The Tribunal directs the Engineer to inspect the Beach culvert crossing to ascertain the status of the channel work, the upstream and downstream rip-rap and the filter cloth and, as necessary, to direct repairs to the channel, the rip-rap and the filter cloth. There will be no cost to the drain as a result of this requirement.
5. The Tribunal directs the Engineer to require the contractor to remedy the concrete deck deficiencies at the Beach culvert crossing. There will be no cost to the drain as a result of this requirement.
6. Garry Beach will receive compensation for hay crop loss of $800.00. The cost of this compensation will form part of the overall costs of the drain.
7. The non-administrative costs of the Municipality for these appeals shall form part of the drainage works.
8. There will be no other order of costs in respect of the Gauthier and Beach appeals, and all parties to the Gauthier and Beach appeals are responsible for their own costs.

Dated at Brampton, Ontario this 28th day of July, 2010.