New Access Culvert Over the McCain Sideroad Drain

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

And in the matter of: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Gisele Labelle and Roger Banar, Kingsville, Ontario regarding a New Residential Access Culvert Over the McCain Sideroad Drain in the Town of Kingsville.

And in the matter of: a Pre-hearing Conference pursuant to Rule 24 of the Tribunal's Rules of Procedure, to be held for the purpose of considering:

1. the identification of issues under appeal;
2. the jurisdiction of Tribunal to hear all matters under appeal; and
3. any other matters which may assist in the just and most expeditious disposition
   of the appeal.
   

Before:

Susan Whelan, Vice Chair, Enio Sullo, member

Pre-Hearing Conference Decision of the Tribunal

Background

Mr. Banar and Ms. Labelle (the Appellants) are the owners of a residential property on Heritage Road in the Town of Kingsville, comprised of Lots 117 and 118 R.P. 184 (Roll No. 280-41650). The property is cut off from the travelled roadway by an open channel municipal drain known as the McCain Sideroad Drain. The drain channel is located adjacent to and parallel to the road across the entire frontage of the property. A new private access culvert was constructed across the municipal drain in 1995 in accordance with a "letter of sizing" prepared by John V. Henderson, P.Eng. of Bruce D. Crozier Engineering Inc.

Pursuant to a 2009 request by the Appellants, Council for the Town of Kingsville appointed Bruce D. Crozier, P.Eng. of Bruce D. Crozier Engineering Inc. under Section 78 of the Drainage Act, to prepare an Engineer's Report for the construction of a second access culvert to serve the Banar/Labelle property. Mr. Crozier subsequently submitted his report dated November 10, 2009. The report provides for the construction of a new access culvert to be attached to the existing culvert built in 1995, for an estimated cost of $13,400 to be assessed entirely to the Appellants. The report further recommends that the resulting single structure, comprising both the 1995 and 2009 culverts become part of the McCain Sideroad Drain works under the Drainage Act.

Mr. Crozier's 2009 report was adopted by Kingsville Council on December 7, 2009 and a Court of Revision was held on January 11, 2010. Tenders were called and a contract for the work was awarded in February 2010. However, the start of construction was halted pending disposition of an appeal received from the Appellants.

During the Pre-hearing Conference the Panel encouraged the parties to enter into discussions with a view to settling some or all of the issues. However, after recessing for approximately 30 minutes, the Panel was advised that the parties had not been successful at resolving any of the issues.

Prior to adjournment of the Pre-hearing Conference, the Panel again encouraged the parties to attempt to settle some or all of the issues involved. The deadline for completing said discussions was set by the Panel for 4:00 pm May 25, 2010. At the end of business on May 25, 2010, the Clerk for the Town of Kingsville advised that the discussions had been unsuccessful. Accordingly, the Panel moved forward with the issuance of this decision.

The Matter Before the Tribunal

The Pre-hearing Conference was held to identify all of the issues that may be under appeal and to determine whether the Tribunal has jurisdiction to hear all matters under appeal.

Findings

According to the documents and information presented by the parties at the hearing, the 1995 access culvert was installed by the Town of Kingsville and was financed by the Appellants. Since the culvert was installed under a "letter of sizing" as opposed to an Engineer's Report under the Act, it was considered to be a private structure, and not part of the McCain Sideroad Drain works. Mr. Banar stated that the culvert was to be installed with its mid point at the line between Lots 117 and 118 so that it could be utilized as a shared crossing for both Lots 117 and 118; instead, the structure was constructed entirely on Lot 118. Ms. Gabriele conceded that the Town of Kingsville installed the culvert at the wrong location, but disagreed with Mr. Banar as to what was to be the correct location. Ms. Gabriele stated that the correct location would have placed the culvert in Lot 117 instead of 118, but not straddling the line between Lots 117 and 118 as stated by Mr. Banar.

The records indicate that the Appellants attended the Council meeting to consider the report on December 7, 2009. The Appellants did not appear to have a problem with the current Engineer's Report; however, they do feel that the Town erred when it installed the first culvert in 1995 and object to having to pay again for another culvert.

Additionally, the records indicate that the Appellants attended the Court of Revision held on January 11, 2010. Mr. Banar again raised the issue that the Town made an error by installing the 1995 culvert in the wrong location and that he was not consulted prior to installation. He stated that he had tried to resolve the issue for several years with no success. In response, the Court of Revision passed a resolution that the Town "…absorb the engineering costs of up to $2,500…given the nuisance caused to Mr. Banar over the years in trying to rectify the situation."

Subsequent to the Court of Revision, the Appellants filed a "letter of appeal" dated January 22, 2010 asserting their right to choose their own contractor to install the culvert. This appeal was withdrawn on January 27, 2010. The Appellants then filed a Notice of Appeal to the Ontario Drainage Tribunal with the Town of Kingsville on February 9, 2010 under Section 65 of the Act. An additional Notice of Appeal to the Ontario Drainage Tribunal dated March 17, 2010 was attached to a set of documents that the Appellants provided directly to the Tribunal. The further Notice contained appeals under Section 48 of the Act in addition to the previously filed Section 65 appeal.

A Section 65 appeal as filed by the Appellants applies to a situation wherein a party is dissatisfied with the apportionment of assessments amongst two or more parcels of land after the land has been subdivided. Clearly such an appeal is not applicable in this case.

The Panel asked the Appellants to explain what they are appealing about the current Engineer's Report. Mr. Banar stated that he would like the Town of Kingsville to pay the entire cost of the new culvert. He said he already paid for everything the first time in 1995 when a mistake was made by the Town in locating the culvert. He believes he would not need the new culvert if the 1995 culvert had been installed in the correct location. Mr. Banar also stated that he has a few problems with the Engineer's Report. He said that there is a guy wire attached to a hydro pole that will interfere with the new driveway. He would also like the driveway from the new access culvert extended approximately 20 ft toward his house, to match what was done in 1995. However, neither of these items is dealt with in the Engineer's Report. He also said that the Engineer's Report refers to the new culvert as being installed for Lots 117 and 118 where in fact it will only serve Lot 117.

Despite the fact that the Notices of Appeal and correspondence filed by the Appellants are somewhat ambiguous, inconsistent or inapplicable; the issues they are appealing were clearly articulated by Mr. Banar during the Pre-hearing Conference. The issues identified qualify as Section 48(1) and Section 54(1) appeals:

Section 48(1): Whether the Engineer's report should be modified as follows:

• relocation of hydro pole guy wire to be included as part of the works;
• driveway to be extended approximately 20 ft beyond the top of the culvert to match existing driveway; and,
• reference to the culvert being for Lots 117 and 118 should be corrected to Lot 117 only.

Section 54(1): Whether the assessment for the entire cost of the drainage works should be to the Town of Kingsville.

Since the foregoing issues are in relation to the current Engineer's Report prepared under the Drainage Act, they fall within the jurisdiction of the Tribunal.

With respect to the culvert constructed in 1995, the Tribunal would normally have no jurisdiction since it is a private structure that was not installed under the Drainage Act. However, Mr. Crozier's current report recommends that the new culvert be attached to the 1995 culvert, resulting in a single structure which is to be incorporated in its entirety as part of the McCain Sideroad Drain works. As such, both the existing and new culverts will now come under the jurisdiction of the Drainage Act and hence the Tribunal.

Order of the Tribunal

The Tribunal orders that this matter proceed to a hearing for both the Section 48(1) and Section 54(1) appeals as detailed above.

Dated at Amherstburg, Ontario this 9th day of June, 2010.