Agriculture, Food and Rural Affairs Appeal Tribunal(Tribunal)

Van Driel 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 Paul Lindsey, of Fergus, Ontario under Sections 54(1) and 48(1)(d) of the Drainage Act from a decision of the Court of Revision on the Van Driel Drain, in the Township of Centre Wellington, and from a Section 40 report of the Engineer that a related drainage works is not required.

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

Appearances

Paul Lindsey - appellant
Neal Morris - K. Smart Associates Ltd. - Engineer who prepared the Report
John Kuntze - K. Smart Associates Ltd.

Decision of the Tribunal

This hearing was held in the Township of Centre Wellington, (the Municipality) in Elora, Ontario on September 26th, 2012. Mr. Lindsey appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48(1) (d) of the Drainage Act (the Act) from the Engineer's Section 40 Report dated December 23rd, 2011 and under Section 54(1) of the Act from the decision of the Court of Revision dated May 23rd, 2012 with respect to his assessments for the Van Driel Drain.

Kerri O'Kane, Deputy Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all landowner parties had been served with notice of hearing dated August 1st, 2012.

Background

The Van Driel Drain was initiated when three landowners (Van Driel, Sykes, & McCracken) petitioned the Municipality for drainage works under the Act.

In response to the petition, the Municipality appointed K. Smart & Associates Ltd. (the Engineer) to prepare a report under the Act. Mr. Neal Morris, a professional engineer with K. Smart & Associates Ltd., was designated the Engineer in charge of the project in accordance with section 8(2) of the Act.

During a site meeting with the petitioners and property owners within the watershed area, the Engineer learned that a portion of Mr. Lindsey's property was part of the watershed.

The watershed of approximately 192 hectares includes about 12 hectares of Mr. Lindsey's property.

Upon learning this, the Engineer then approached Mr. Lindsey about the drainage works and explained that the preliminary watershed boundary would be expanded to include the affected portions of Mr. Lindsey's property.

Mr. Lindsey raises horses and had concerns about some poorly drained areas on his property where standing water could provide a breeding ground for an insect that was potentially harmful to his horses. The Engineer explained that to ensure he had a legal drainage outlet, Mr. Lindsey would need to sign a petition for drainage so that the works needed to drain his property could be incorporated into the Van Driel Drain drainage works.

Mr. and Mrs. Lindsey signed a petition under the Act for drainage works on their land. In response to the petition, the Municipality directed that the Engineer incorporate the works required by the Lindseys into the Van Driel Drain Report in accordance with section 8(4) of the Act.

To address Mr. Lindsey's drainage issues, the Engineer carried out work that included meetings, surveying, drafting and designing drainage options, developing cost estimates, calculating revised assessment schedules and reporting. The cost of that work was $7,500.00.

After Mr. Lindsey learned of the possible costs of the drainage works on his land, he decided that he did not wish to proceed. Another factor that informed his decision not to proceed was that due to some private drain work done by one of his neighbours to install a new tile and catchbasin, some of Mr. Lindsey's concerns about the drainage on his property had been alleviated. However, the Engineer had a statutory duty to continue with his engineering work and the only way to curtail any further engineering costs related to the drainage works on Mr. Lindsey's property was if Mr. Lindsey withdrew his petition. Accordingly, Mr. Lindsey withdrew his petition and any additional engineering work associated with Mr. Lindsey's property came to an end. The issue remained, however, about the $7,500.00 of engineering work associated with Mr. Lindsey's withdrawn petition.

The drainage works consist of a mix of open ditches and enclosed tile drains and catchbasins divided into three segments: the Sykes Branch 1, the Sykes Branch 2, and the Main Drain. Collectively, these works are known as the Van Driel Drain.

Part of the Engineer's responsibility under the Act is to assess benefit and outlet liability of each property contributing water into the drain. Outlet liability is based on the rate of water flow per hectare. Flow rates change, depending on property location and where water enters the drain. In this case, the Engineer determined that 3.9 hectares of Mr. Lindsey's property drained into the Sykes Branch 1 of the Van Driel Drain. Mr. Lindsey challenged that determination. It was Mr. Lindsey's view that the 3.9 hectares drained into the Main Drain, rather than through the Sykes Branch 1. Depending on where these 3.9 hectares drained, Mr. Lindsey's assessment for outlet liability could change.

Issues

  1. Should Mr. Lindsey's outlet liability in respect of 3.9 hectares of his property, be assessed as part of the Sykes Branch 1 of the Van Driel Drain or should it be assessed as part of the Main Drain?
  2. Should Mr. Lindsey's responsibility for the engineering costs associated with the related petition for drainage works that Mr. Lindsey withdrew, be assessed against him separately, or as a special benefit assessment under the Van Driel Drain?

Evidence & Findings - Issue 1

Mr. Lindsey testified that the water from the 3.9 acres had, during his forty year tenure on the property, always drained to the south toward the Main Drain. He provided elevations obtained from Google Earth along his property boundary with County Road 19 and the Cataract Trail that he suggested supported his evidence that the land dropped in elevation from north to south. He also provided a series of photographs taken along his property boundary with County Road 19 and the Cataract Trail that illustrated and supported his evidence about the fall of the land.

The Engineer confirmed that the area in issue was relatively flat. He testified that his determination about the 3.9 hectares draining to the north toward the Sykes Branch 1 was based on survey results. However, the Engineer also testified that he had no objection that the 3.9 hectares be assessed as draining into interval 6 of the Main Drain and that the assessment schedules change accordingly.

On cross examination, Mr. Lindsey testified that he had recently constructed a tile drain commencing in the area of the blocked culvert under the County Road, which flowed north under the road ditch to outlet just past his entrance driveway and then flowed to the Main Drain. No details were provided with respect to the tile drain.

In an appeal, the onus of proof rests with the appellant. In these circumstances, the Tribunal is satisfied, on a balance of probabilities, that those 3.9 hectares of Mr. Lindsey's land drain to the south, toward the Main Drain, rather than north, toward the Sykes Branch 1.

In balancing the evidence, the Tribunal placed significant weight on Mr. Lindsey's evidence that was based on his forty year tenure at the property. In our view, Mr. Lindsey had the best evidence, from first hand experience, about how his property drained. In addition, Mr. Lindsey's evidence was supported by his photographic evidence which illustrated the fall of the land. The Tribunal placed little weight on the elevations obtained from Google Earth. However, the Engineer's survey results confirmed that the area was relatively flat, which, when coupled with the Engineer's expressed ambivalence about assessing the 3.9 hectares as part of the Main Drain, added further weight to Mr. Lindsey's evidence.

Evidence & Findings - Issue 2

It is understandable that Mr. Lindsey would prefer not to pay the $7,500.00 for the engineering costs associated with his withdrawn petition. He does not challenge his responsibility for those costs, rather, he challenges that the $7,500.00 is separately assessed against him, outside the context of the assessment schedules of the Van Driel Drain Report.

Mr. Lindsey withdrew his petition by written communication to the Municipality dated May 24th, 2011. That letter stated "I would like to withdraw my name from the Van Driel drainage petition".

The Engineer's evidence was uncontradicted and unchallenged that when Mr. Lindsey withdrew his petition, the engineering work to that point associated with extending the drainage works onto the Lindsey property totalled $7,500.00.

Part of the Engineer's responsibility under section 8(1)(c) of the Act is to determine "an assessment of the amount or proportion of the cost of the works to be assessed against every parcel of land and road for benefit, outlet liability and injuring liability".

The Engineer's fees and expenses are considered part of the "cost of the works".

The Engineer's Report was completed and dated September 23rd, 2011. In the September 23rd, 2011 Report, the Engineer reported that the total engineering cost estimate was $60,000.00. The Engineer assessed the $7,500.00 engineering costs associated with Mr. Lindsey's withdrawn petition as a benefit to the Lindsey lands.

The Act in section 1 defines "benefit" and "special benefit" as follows:

"benefit" means the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures;

"special benefit" means any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works;

It is apparent from those definitions that the Act contemplates different elements associated with benefit. The former is more specifically related to the functionality of the drainage works, while the latter relates to "additional work" that is unrelated to functionality.

The overall purpose of the Act is a scheme that allows for drainage projects where the fundamental premise is that each landowner on the drain bears a proportionate share of the costs and, where some added expense arises that is unique to a particular landowner, that landowner bears the totality of such increased costs.

In addition, the Act also provides in Section 10(3)(4) and Sections 42 and 43 that, at a meeting to consider the Engineer's Report or preliminary Report, petitioners are given the opportunity to withdraw and, where petitioners withdraw and that results in a petition ceasing to comply with Section 4, the original petitioners are liable in equal shares for the expenses incurred to prepare the Report or preliminary Report. While Mr. Lindsey's withdrawal did not occur at a meeting to consider, it did occur following a meeting held by the Engineer with all landowners on May 9th, 2011 to consider the proposed costs and assessments.

The Tribunal finds that based on the uncontradicted and unchallenged evidence of the Engineer, and in the circumstances of this case, the added costs of the Engineer for conducting surveys and designing and drafting options for extending the physical drainage works onto Mr. Lindsey's land, in response to the Lindsey petition for drainage, should be borne by Mr. Lindsey.

The Municipality scheduled the required meeting to consider the report for October 24th, 2011. At that meeting to consider, Mr. McCracken withdrew his name from the petition and the Municipality referred the report back to the Engineer to re-evaluate the validity of the petition under Section 4 of the Act.

Sometime after the October 24, 2011 meeting, another meeting was held with the petitioners. Following this meeting, Mr. McCracken re-signed the petition. The report states that "some other landowners added their names to the petition" as well. No evidence was presented to support these changes.

The Engineer testified that after preparing the September 23rd, 2011 Report, upon further consultation with the Municipality and more senior drainage practitioners, he revised the Report. The Engineer's revised Report was dated December 23rd, 2011. In addition, the Engineer prepared a second report dated December 23rd, 2011, under section 40 of the Act (the Section 40 Report). The purpose of the Section 40 Report was to deal with the $7,500.00 engineering costs related to Mr. Lindsey's withdrawn petition.

Section 40 of the Act provides:

Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer's fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report, by prepaid mail, to all persons who signed the petition or requisition, as the case may be, and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal.

There is nothing in Section 40 that demands that the contemplated report be separate from the Engineer's Report under Section 8. There may well be circumstances where a separate Section 40 Report will be required, but in the context of these circumstances, the Engineer complied with section 40 by addressing the $7,500.00 cost issue in the September 23rd, 2011 Report as a benefit assessment to Mr. Lindsey. Further, by addressing the matter in one report, the Engineer complied with the Municipality's direction under Section 8(4) to make one report in respect of the two petitions.

During the hearing, when it became apparent from Mr. Lindsey's cross-examination of the Engineer that his complaint was not with his responsibility for the $7,500.00, but rather with the assessment of that responsibility outside the context of the Van Driel Drain Report, the Engineer acknowledged that he had no objection to reverting to assessing that $7,500.00 to Mr. Lindsey as a benefit assessment in the Van Driel Drain Report.

The Tribunal further finds that the Engineer complied with Section 40 by incorporating the assessment of the $7,500.00 of engineering costs as a benefit to Mr. Lindsey, as part of the Engineer's Van Driel Drain Report dated September 23, 2011.

The Tribunal finds that in these circumstances, there was no need for the Engineer to prepare a separate Section 40 Report.

As a result of the Tribunal's determination in respect of the Section 40 Report, the Engineer's Report on the Van Driel Drain dated December 23rd, 2011 will be amended to show the details of the $7,500.00 engineering cost incurred by the Lindsey property and that the $7,500.00 be assessed to the Lindsey property as a special benefit.

As a result of the Tribunal's determination concerning the 3.9 hectares of Mr. Lindsey's land, the assessments reflected on pages 22 and 23 of the Report will be changed to reflect that those 3.9 hectares drain into the Main Drain and the assessments will be changed in accordance with Exhibit #7 filed at the Tribunal hearing on September 26, 2012.

In addition, the Engineer will be directed to make any other consequential amendments to the Report arising from the Tribunal's determination.

Order of the Tribunal

The Tribunal orders as follows:

  1. The appeals of Paul Lindsey under Sections 48 and 54 of the Act are granted in part.
  2. The Engineer's Section 40 Report dated December 23, 2011 is null and void.
  3. The Engineer is directed to amend the assessments in the Assessment Schedule at pages 23 and 27 of the Report in accordance with Exhibit #7 filed at the Tribunal hearing on September 26, 2012.
  4. The Engineer shall further amend the Assessment Schedule and the $7,500.00 engineering cost associated with the Lindsey property shall be assessed to Roll # 07210 (Lindsey) as a special benefit assessment and shall not be prorated when the final cost of the project is determined.
  5. The Engineer is directed to make any consequential amendments to the Van Driel Drain Report arising from the Tribunal's determinations, and to identify them with a double asterisk referring to a footer stating, "As amended by the Tribunal".
  6. The non-administrative costs of the Township for these appeals shall form part of the costs of the drainage works.
  7. There will be no other order of costs and all parties are responsible for their own costs.

Dated at Brampton, Ontario this 4th day of October, 2012.


For more information:
Toll Free: 1-888-466-2372 ext. 63433
Local: 519-826-3433
E-mail: appeals.tribunal.omafra@ontario.ca
Author: OMAFRA Staff)
Creation Date: 23 July 2012
Last Reviewed: 23 July 2011