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Exeter Municipal Diversion Drain 2009
Si vous désirez obtenir une traduction de cette décision ou ordonnance, veuillez communiquer avec le bureau du Tribunal (voir ci-dessous). In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Barlow Square Inc., Sudbury; Martin and Maria Bonigut, Newmarket; Henry Kedra, Guelph; Gary Rupke, Kettleby; and Salvatore Tunno, Kettleby under Subsection 48(1) of the Drainage Act from the engineer's report and by the County of Simcoe, Midhurst; and Dorian and Elizabeth Milleman, Newmarket under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision, and by Lawrence and Connie Curtis, Bradford; and Ron Gleason, Bradford under Subsection 48(1) and 54(1) of the Drainage Act on the Holland Marsh Drainage System Canal Improvement Project initiated by the Town of Bradford West Gwillimbury. Before: John O'Kane, Vice Chair; Jack Young, Vice Chair; and Enio Sullo, Member Appearances: Attendees on behalf of the parties: On behalf of the Town of Bradford West Gwillimbury:
On behalf of Barlow Square Inc., appellant:
On behalf of Mr. Martin and Ms. Maria Bonigut, appellants:
On behalf of Mr. Lawrence and Ms. Connie Curtis, appellants:
On behalf of the County of Simcoe, appellant:
On behalf of Mr. Ron Gleason, appellant:
On behalf of Mr. Henry Kedra, appellant:
On behalf of Mr. Dorian and Ms. Elizabeth Milleman, appellants:
On behalf of Mr. Gary Rupke, appellant:
Decision of the TribunalThe purpose of this hearing was to hear appeals relating to a report titled "Holland Marsh Drainage System Canal Improvement Project" (the Report) dated January 16, 2009, prepared by K. Smart Associates Limited (the Engineer) for the Town of Bradford West Gwillimbury (the Municipality) in accordance with section 78 of the Drainage Act (the Act). Mr. Ken Smart, P. Eng. was designated the Engineer in charge of the project in accordance with section 8(2) of the Act. This hearing was held in the auditorium of St. John's Presbyterian Church, Bradford, Ontario, on October 27th, 28th, 29th, 2009, and December 9th, 2009. Ms. Patricia Nash, Clerk of the Town of Bradford West Gwillimbury, performed
the duties of the Clerk of the Tribunal. OverviewThe project started in 1997 when preliminary studies were done on improving the Holland Marsh Canal System which then culminated in a preliminary report in 2003 on repairing the dykes and canals of the Holland Marsh Canal System. The final report on the project, which is the subject of this hearing, was commissioned in May 2003 and proposes the following work:
The Report estimates that the total cost of the proposed repairs to the canals and dykes, inclusive of financing, engineering and administration to be $26,385,640. Included in those costs, as part of the engineering, was the construction of two trial areas of the canal which were completed in 2008, where the Engineer field tested the design and construction techniques. The proposed work is the costliest Drainage Act project in Ontario history. The watershed comprises 28,853.8 hectares (71,297 acres) of lands and roads with over 7,000 properties in seven municipalities. The Engineer apportioned the estimated costs of the project over the lands and roads located within the watershed in an "Assessment Schedule", generally described as the "assessment", in accordance with the Act. In the Report, the Engineer also determined the allowances to landowners under sections 29 , 30 and 31 of the Act. Of the total estimated cost of $26,385,640, the allowances to landowners accounted for $449,150. When designing the works, determining the allowances and assessments, and making the Report, the Engineer acts according to specific statutory duties as set out in section 11 of the Act. Those duties are: . . . to the best of the engineer's skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon. Despite assessments to over 7,000 properties and allowances made to 157 properties along the canals, there were just nine appellants that filed twelve appeals in total. Of those twelve appeals, seven were withdrawn before the end of the hearing leaving five appeals for the Tribunal's determination. Table 1 describes those five appeals by landowner, property roll number and the nature of the appeal. Salvatore Tunno withdrew his appeal just prior to the hearing. The County of Simcoe and Gary Rupke withdrew their appeals partway through the first day of the hearing. Ron Gleason's appeal was adjourned at the request of the parties. During the Curtis appeal, their counsel advised they withdrew their section 54 appeal. We will address the disposition of the Gleason appeal later in this decision. The appellants under section 48 of the Act complained that the allowances (estimated money they will receive) under sections 29, 30, 31 and 33 of the Act were too low. The appellants under section 54 of the Act complained that the assessments (estimated money they will pay) under section 23 of the Act were too high. Table 1
Preliminary MattersPrior 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 Municipality filed an affidavit of service proving that all assessed landowners in the Holland Marsh watershed had notice of the hearing, satisfying section 99 of the Act. No other landowners asked for party status at the hearing. Background
The Holland Marsh canal system began construction in the mid 1920s. The original construction was a drainage works under the 1920s version of the Drainage Act. Alexander Baird was the original drainage engineer who designed the canal system in a 1924 drainage report. The drainage works consisted of a north canal and a south canal that redirected the flow of the Schomberg Branch of the Holland River to the north and south of what is referred to as the "Holland Marsh". In addition, there were a series of dykes or berms built adjacent to the canals to provide flood protection for the low-lying lands within the canals and dykes. A pump system maintains the Holland River within the marsh at a level approximately 2.5 metres below the level of Lake Simcoe. The result of the drainage works was the reclamation of about 7,000 acres (2,800 hectares) of marshland into fertile, productive agricultural land. The canals also drain an exterior watershed area of about 64,300 acres (26,000 hectares) including parts of several geographic townships which are now included in the Town of Caledon (Region of Peel), the Towns of Bradford West Gwillimbury and New Tecumseth (County of Simcoe), and the Towns of East Gwillimbury and Newmarket, and the Township of King (Region of York). B. The 1954 Remedial Work In 1954, Hurricane Hazel ravaged parts of Ontario and caused widespread flooding. The area of the Holland Marsh protected by the dykes and canals was flooded causing significant losses. During remedial work after the hurricane, portions of the canals were widened and deepened to provide greater flood protection. C. Developments up to the Present Since first constructed 85 years ago, much of the landscape has changed around the canals and dykes of the Holland Marsh.
In the fifty years since Hurricane Hazel, regular maintenance of the canals has not been possible. The post-hurricane widening and deepening of the canals obliterated much of the originally designed maintenance corridor. New road infrastructure, principally Highway 400, bisects the Marsh and several bridges span of the north and south canals. Low bridges and bridge piers located within the canals prevent the use of dredging equipment to maintain the canals. The Holland Marsh is administered by the "Holland Marsh Local Services Board" (the Board) which has representatives from the municipalities as well as landowners. D. Context of the Current Drain Works Proposal The Town of Bradford West Gwillimbury appointed the Engineer in 1997 under the Act to study needed repairs and maintenance to the canals, dykes and bridges and to prepare a preliminary report. The Report under consideration in these appeals is the culmination of over a decade of investigations, studies, an environmental assessment, surveys, soundings, drawings, meetings with affected municipalities, meetings with the responsible regulatory agencies, public meetings with area residents, hearings before the Tribunal and the Drainage Referee. The Engineer's Report recommended the improvement work to the Holland Marsh drainage system canals and dykes to accomplish the following goals:
EvidenceThe Engineer gave an overview of the Report prior to the introduction of evidence by the appellants. On consent of all parties, the Tribunal qualified the Engineer to give expert opinion evidence as a Drainage Engineer under the Act. The Engineer was the only expert qualified to give opinion evidence on drainage engineering and the engineer's duties under the Act. The Engineer has been a qualified professional engineer since 1968 and over ninety-five percent of his professional practice has been in the drainage discipline. In many previous proceedings, he has been qualified to give expert evidence in drainage matter. He has authored over 800 drainage reports under the Act. The allowance appeals deal with "land" under section 29 of the Act and "damages" under section 30 of the Act. Allowances - Land - Section 29Section 29 of the Act provides for an allowance to be paid to landowners for the use of any land necessary for the construction and improvement of the drainage work, including the maintenance corridor, and for the disposal of excavated material. The allowances in the appeals all relate to lands "outside the Marsh" or on the exterior of the canals and berms. In determining the allowances for land in the Report, the Engineer developed
the following schedule of land values "outside the Marsh".
There are four appeals under section 48 of the Act related to allowances. The four appellants are Bonigut, Kedra, Curtis and Barlow Square. The properties of those four appellants are all located outside the Marsh along the north side of the north canal to the east and west of Highway 400. The Engineer testified that, in developing the allowances for the lands to be used in this project, he considered their physical characteristics; the applicable planning regulations; his experiences and the practice of drainage engineers generally throughout the province. He also considered that the Act does not direct the purchase of the lands, but rather, the use of the lands for the purposes of the Act. Title to the land remains with the property owners. He testified that he relied on his forty years experience as a drainage engineer to develop the allowances. He testified he also consulted with past and present local drainage superintendents and members of the Holland Marsh Local Services Board about local land values. The Engineer testified that, in his experience, he typically uses values for Southern Ontario "bush" land of $400 - $800 per acre. The Engineer testified that for the "bush" land outside the Marsh he adjusted the value upward from his typical Southern Ontario value to $1,200 per acre. For residential properties, the Engineer testified that he applied a rate of $25,000 per acre reflecting a higher use and a higher value. He readily conceded under cross-examination that he was not a land appraiser
and in the circumstances of this project, he did not consult with a land
appraiser about land values. He explained that his duty under section
29 was to develop an allowance for the use of the land that he considered
fair and reasonable. Allowances - Damages - Section 30Section 30 of the Act provides for allowances to be paid to landowners for damage to trees, lawns, fences, land or crops due to construction and the disposal of materials removed during construction. In determining the allowances for damages in the Report, the Engineer
developed the following schedule for section 30 allowances "outside
the Marsh".
The Engineer testified that, in developing the allowance for damages, he considered the standard rates that he has previously applied in other drainage projects. Those standard rates are $300 per acre for bush lands; $400 per acre for pasture lands; and $400-$500 per acre for cultivated lands. He testified the section 30 allowances he developed for this drainage project were higher than allowances he has previously used. He also testified that he engaged the services of a professional forester to conduct a visual examination of the trees on the lands proposed for the canal work to determine if there was any commercial timber. The forester advised the Engineer there was little timber of any significant value. Based on the information the Engineer received from the forester, he did not increase the section 30 allowances as he considered them reasonable and fair in the circumstances. However, recognizing some landowners might consider their trees in the area proposed for use as being more valuable, the Engineer allowed in the Report that landowners identify valuable trees. The Report proposes those trees will be cut and piled for the landowner during the works, provided they are not needed in the construction. AssessmentsThe Act requires that the total cost of the project be distributed over all landowners that contribute water to the project and landowners that have their land improved by the project. The levy against a property, in dollars, is referred to as an "Assessment". There are several types of Assessment as described as follows: "Benefit" is a defined term under section 22 of 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. Lands inside the marsh have been assigned a "Benefit Assessment". An assessment for "outlet" liability under section 23 of the Act arises when any land puts water into a drainage works. It is the cost of transporting runoff from a property to an outlet. The Engineer assesses that land for part of the cost of the works as outlet liability under section 23. Lands outside the marsh have been assigned an "Outlet Assessment" In addition, the Act provides for a "Special Assessment" in section 24 . This assessment is for increased cost to a project for a particular item such as bridges and utilities. The Engineer assessed the lands on the interior of the canals and dykes for benefit and the lands outside the dykes and canals for outlet. The Engineer assessed 75% of the costs to the interior lands as benefit and 25% of the costs to the exterior lands as outlet liability. Special assessments were deducted from the total cost prior to distributing the benefit and outlet assessments. The only assessment appeal under section 54 of the Act is by the Millemans and relates to an interior parcel assessed for benefit. The Engineer testified that the lands inside the dykes and canals benefit from flood protection and from having the canals to convey water from the surrounding watershed around the interior lands. Since the benefit to all interiors lands is similar, the Engineer developed a per acre assessment by dividing the applicable costs by the overall acreage inside the dykes and canals. Therefore, all interior land parcels were assessed for benefit at the same rate per acre. The Engineer's approach to the assessment was consistent with the original 1920s assessment and with an earlier report completed under section 76 of the Act and approved in 2002 by the Ontario Drainage Referee . Issues Raised in the Individual Appeals
The Bonigut properties are located outside the marsh on the north side of the North Canal Road, one on each side of Sideroad 5, about 1.0 km west of Highway 400. The existing canal is located on the Bonigut land with the southern bank of the canal approximately following the Boniguts' southern lot line. Canal Road is located on top of the canal berm immediately south of the Bonigut southern lot line. In this area there is very little remaining of the original maintenance corridor. Along the Bonigut land, the proposed work is described as a "Full Relocation" which will relocate the canal to the north. The Report proposes using excavated soils to fill in the existing canal. Along the entire southerly limit of the Boniguts' property line, what was under the canal water will become filled in, creating a strip of land, owned by the Boniguts between the relocated canal and Canal Road. Dr. William Konrad, a planning professional, acted as advocate and presented the evidence on behalf of the Boniguts. Dr. Konrad identified the issues as: the inadequacy of the compensation for land and damages; the extent of the land taken; the scope of damages to property rights and property value, and the basis for the allowances. The Boniguts contend that just compensation is $43,604 for land value;
$5,800 for the loss of trees; $4,200 for appraisal costs; $4,778 for planning
consulting costs of Dr. Konrad, $128 for photocopying and $7,240 for legal
costs, for a total of $65,750. Dr. Konrad testified that strip of reclaimed Bonigut land where the existing canal is located will be "landlocked" and separated from the balance of the Bonigut lands by the canal. He testified the only way for the Boniguts to get to that part of their land would be via boat. Dr. Konrad testified that, because of the proposed work, the compensation for the Bonigut land ought to include both the 12.039 acres of the relocated canal and the 7.781 acres of the existing canal area for a total of 19.82 acres. Dr. Konrad testified that the fair compensation value for those lands would be $2,647.36 per acre using the $1 million purchase price from 1997, based on discussions he had with a senior appraiser about values. That would translate to land compensation of $52,470.61. As additional support for that value, Dr. Konrad presented an appraisal report from Murray Visser from Central Ontario Appraisals Inc. which indicated, based on sales data, an appropriate value is $2,200 per acre. That would translate to land compensation of $43,604.00. Without any supporting evidence, Dr. Konrad also raised several liabilities associated with the proposed work:
The Engineer testified the section 29 allowance for use of the Bonigut land in Lot 5 of was $4,925 and $13,525 in Lots 6 and 7. He explained he used the "bush" allowance rate of $1,200 per acre he developed considering his experience and practice throughout Ontario as well as the physical characteristics of the land he proposed to use, and the applicable planning and regulatory regimes. He readily conceded in cross-examination that he was not a qualified appraiser. He testified that, in his experience, it is only in exceptional cases where he involves a land appraiser to prepare formal appraisals. He explained his statutory duty is to develop the allowances based on estimate of the value applying his experience and skill. The Engineer testified that the land along the Bonigut southern lot line is zoned environmental protection (EP) by the local municipality and "Marsh Protection Buffer" under the Official Plan (OP). The Provincial Greenbelt Plan designates that area along the canal as "Natural Heritage System". The Engineer explained that the area of the Bonigut lands to be used for canal relocation was very low and under water for many months of the year due to the canal overtopping its banks. He explained how the Trent-Severn Canal System controls the water level in Lake Simcoe at a level that is higher than the ground level outside of the canal bank in some locations. Since there are no control structures between the canal and Lake Simcoe to regulate the canal water level, the Lake levels strongly influence the water level in the canal. He testified that, as a result, the land along the outside bank of the canal is under water for many months after spring run-off. The Municipality called Jack Winkler, a registered professional forester since 1981. Based on his qualifications and experience and with the consent of all parties, Mr. Winkler was qualified to give opinion evidence as an expert in forestry. The Engineer hired Mr. Winkler to assess the Bonigut trees to consider if they were valuable for logging. He estimated the timber value at $250. The Engineer concluded that due to the wet conditions, there was no repeat crop value in the trees. The Engineer confirmed that no contaminated soils had been discovered on the Bonigut lands in the soil tests carried out, however, if any such soils were encountered during the canal relocation, it would be disposed of off-site as part of the overall construction costs. If any contaminated soils were found in the existing canal, measures would be used to cap such contamination. He explained that the proposed environmental measures had been reviewed by Environment Canada during the environmental assessment process and they will form part of the construction contract terms and the successful contractor will be required to provide performance bonds to ensure compliance with the contract. Based on the physical characteristics of the Bonigut lands and the restrictive planning designations, the Engineer concluded that $1,200 per acre was a reasonable and fair section 29 allowance for the Bonigut lands that were to be used for the relocated canal. He also testified that $500 per acre was similarly reasonable and fair as the allowance for the Bonigut lands that was presently part of the existing canal that will be filled in with material excavated from the relocated canal. He also testified the $500 per acre allowance for the maintenance corridor was similarly fair and reasonable. He also testified that the $500 per acre was a reasonable section 30 allowance. He agreed that if the Boniguts believed their trees were valuable they could identify them in advance of construction and the Report allowed the Engineer to have those trees cut and piled for the Boniguts, provided the trees were not needed in construction. He agreed during cross-examination that since the scheme of the Act is
that users of the drainage works pay for the works, the object is to minimize
the costs. However, he disagreed there was any effort to cut costs, particularly
with respect to the allowances. He testified that, in his experience,
the land allowances of about $449,000 were not out of balance for a project
of about $26 million, particularly when about $15 million of that overall
cost was for associated structures which were not assessed to landowners.
He was unequivocal that the land allowances he developed were fair value. The Municipality called Mr. Art Janse to provide evidence. Prior to his retirement in 2003, Mr. Janse had been the Drainage Superintendent, the Chief Building Official and the Zoning Administrator for both the former Township of West Gwillimbury and the Town of Bradford West Gwillimbury. He has lived in the Holland Marsh area since he was a child and knows the Bonigut property. Mr. Janse described the Bonigut lands along the canal route and the proposed relocation route as swampy. He explained that since the 1980s, when the Trent Severn water levels were raised, that area of the Bonigut lands has been under water for about nine months of each year. He described that since the 1980s, many trees in that area have fallen over. His view was the trees have fallen over because the land is so swampy and unable to support the trees. Mr. Janse explained that part of his job with the Municipality had been to review development proposals, including such proposals for lands adjacent to the canal. The Municipality has a policy of acquiring land along the canal from property owners seeking development approvals under the Planning Act. The policy requires landowners to donate such lands without charge as part of the approval process. The reason behind the policy is so the Municipality can acquire ownership of a canal maintenance corridor. In his experience with the Municipality, those acquired lands have varied in width from 100 to 400 feet. In his final submission on behalf of the Boniguts, Dr. Konrad revised their contention of just compensation for Allowances to $49,000 plus costs for legal and professional fees of $16,347.79 for a total of $65,347.79. Bonigut Findings The Bonigut lands used for the existing canal have been used that way since the original drainage works in 1924 and we find that Boniguts' predecessors in title were compensated under the Drainage Act at that time. The Bonigut lands that are proposed to be used in the canal relocation are zoned "EP" which is an environmentally protected zoning designation as well as "marsh buffer" in the OP and "natural heritage" in the provincial plan. No building can take place in an EP zone and the area of the EP zone cannot be used to calculate land area for any other zoning provision. An owner cannot alter the fill or grades in an EP zone without the approval of the conservation authority. The Bonigut lands proposed for use in the canal relocation are at elevations
that are below the seasonal levels of Lake Simcoe and, as a result, those
areas are presently subject to flooding and are under water as much as
nine months of the year. There are several difficulties with the land value evidence presented by the Boniguts. First, there was second hand hearsay evidence, as the appraiser that Dr. Konrad had spoken with was not present for cross-examination. Second, the authors of the Rober/Visser appraisal report were not present for cross-examination. Third, the Rober/Visser appraisal report is based on a sales analysis, presumably where title is conveyed as part of a land sale. However, under the Act, the Boniguts retain title to lands used for the drainage works. There was no evidence from the Boniguts that land value in a sale transaction equates to land value for an allowance under the Act. When an appellant comes before this Tribunal, challenging allowances as too low or too high or wrong or unfair, it is incumbent on the appellant to present cogent evidence demonstrating that to be the case. In establishing the value of a portion of a parcel of land along the canal, it is essential that the value established relates only to that part. The property appraisals presented provide only an average value for the total property which includes buildings, improved areas of the property, access to roads, and other improvements. In this case, it was incumbent on the appellants to provide a substantiated value for the section of land involved in the project and the Boniguts did not adduce any cogent evidence to satisfy us that the Engineer's estimate of the allowances was wrong. The Engineer was qualified as an expert in drainage matters and we accept his evidence about how and why he developed the allowance values in the Report. While not a qualified or licensed real estate appraiser, the Engineer has completed over 800 drainage reports. In each of those reports, he discharged a statutory duty to estimate the value of allowances for the use of lands and the allowances for damages. That experience developed over forty years in practice qualifies the Engineer to make estimates of value. In the circumstances of this case, we place a great deal of weight on the Engineer's evidence about his estimate of land values for the Bonigut allowances. We therefore find as a fact that the section 29 allowance to the Boniguts of $1,200 per acre for bush land outside the Marsh is reasonable and fair. We also find as a fact that the section 30 allowance to the Boniguts of $500 per acre for bush area outside the Marsh is reasonable and fair. There was no evidence of contaminated soils. In any event, we are satisfied that the Engineer has appropriately addressed the contamination contingency through the construction contract terms and contractor's performance bonds. The Tribunal does not have jurisdiction to grant declaratory relief or
decide issues of third party liability, liability for trespass or future
flooding. There was also no evidence lead in respect of those issues.
Therefore, while those issues concern the appellants, the Act does not
provide for any related relief, even if sufficient evidence had been provided
to us.
The Kedra property is located north of Canal Road (Simcoe Road 8) about 150 metres east of Tornado Street and on the north side of the north canal. There is currently no access to the property but, historically, there was a footbridge across the canal that afforded access. The footbridge partially collapsed and the Municipality removed it because it presented a hazard in canal maintenance. In the area of the Kedra land, the proposed work is described as a "Full Relocation", which will relocate the canal to the north. This will result in the Kedra property being totally used up by the new canal. In his evidence, Mr. Kedra described the property as a "building lot" with a well, mature fruit trees and foundation remnants left after a fire destroyed the house in the early part of the 1990s. He testified the property enjoyed legal non-conforming use status that would allow him to rebuild on the foundation remnants. Mr. Kedra testified the combined allowances of $11,975 were inadequate for his loss of the building lot, water well, fruit trees and the foundation remnants. He testified that he believed he could obtain a building permit and rebuild on the remnant foundations. Mr. Kedra provided evidence of property value he obtained from internet searches of two real estate listing services. He suggested that the property value was around $50,000 for the lot plus another $36,000 for the value of the foundation, water well, fruit trees, landscaping and a hydro pole. During cross-examination, Mr. Kedra testified he inherited the property from his great aunt. He confirmed that his family had begun renovations on the house in the early 1990s without a building permit and the Municipality had issued a stop work order. At some later point, a fire partially destroyed the structure. He agreed that his father and great aunt applied for a demolition permit and tore down the remainder of the structure. In cross-examination, Mr. Kedra conceded that:
The Engineer testified that he calculated the allowance for the Kedra property believing it was a residential building lot. He testified that, based on what he learned through the Kedra appeal and Mr. Kedra's evidence, he would drop the allowance from the residential building lot rate to the rate assigned to bush lots. The Engineer testified that the Kedra property was designated EP under the zoning by-law, "marsh protection buffer" under the Official Plan and "natural heritage" under the Greenbelt Plan. He described the elevation of the property as 219.8 metres above sea level (ASL) while the flood level was 221.25 metres ASL (1.45 m. above the land elevation). He described the Kedra property as "flood land" which would complicate building assuming the necessary permission was obtained. It would require fill to bring the property above the flood level, however the Lake Simcoe Region Conservation Authority will not grant fill permits in the EP zone. He also pointed out that to get fill onto the property would require a bridge, a dragline or a barge. The Municipality called Mr. Art Janse to provide evidence. Mr. Janse is a life-long resident of the marsh and knows the Kendra property well. His professional experiences as former Drainage Superintendent, Chief Building Official and Zoning Administrator give him a unique credentials to provide the Tribunal with very helpful local context. Mr. Janse testified about the renovation to the Kedra structure in 1992 without a building permit leading to issuing a stop work order. He also confirmed that under the EP zoning designation that applies to the Kedra property, once the demolition permit was issued, the property lost its legal non-conforming use status, therefore the Municipality would not issue a building permit to re-build on the old remnant foundations. He also confirmed that the Kedra property could not accommodate the required septic/sewage system required by the Ontario Building Code. Kedra Findings The Tribunal accepts the uncontradicted evidence of Mr. Janse, that when Kedra's great aunt obtained a demolition permit to take down the burned structure, they forfeited the legal non-conforming use status of the property. We accept the property's planning designations, confirmed by both the Engineer and Mr. Janse as being EP, "marsh buffer area", and "natural heritage". We find as a fact that, due to the property status and the planning controls, the property is not a residential building lot. We also accept that the Engineer made the original allowances for the Kedra property, as set out in the Report, based on erroneous information. This appeal process now presents an opportunity to either allow that error to stand, or to correct that error. We therefore find as a fact that the proper, reasonable and fair treatment of the Kedra property is to recalculate the allowances based on its status as bush land outside the Marsh. To ignore this error and leave the allowances as if the Kedra land was a residential building lot would be tantamount to visiting unfairness on all other landowners along the canal. On the issue of land values, there was no direct evidence from Mr. Kedra about the value of his property. The real estate listing information he produced was of limited value. He did not produce evidence of any comparable properties and he did not lead value evidence from any person qualified to determine the value of land used for the drainage works. In the circumstances, we attach no weight to the value information gleaned from the real estate listings produced. When an appellant comes before this Tribunal challenging the allowances as too low or too high or wrong or unfair, it is incumbent on the appellant to present cogent evidence demonstrating that to be the case. In this case, Mr. Kedra did not adduce any cogent evidence to satisfy us that the Engineer's corrected estimate of the allowances was wrong. The Engineer was qualified as an expert in drainage matters and we accept his evidence about how and why he developed the allowance values in the Report. While not a qualified or licensed real estate appraiser, the Engineer has completed over 800 drainage reports. In each of those reports, he discharged a statutory duty to estimate the value of allowances for the use of lands and the allowances for damages. That experience developed over forty years in practice qualifies the Engineer to make estimates of value. In the circumstances of this case, we place a great deal of weight on the Engineer's evidence about his corrected estimate of land values for the Kedra allowances. We therefore find as a fact that the section 29 allowance value of $1,200
per acre for bush land outside the Marsh is reasonable, appropriate, and
applicable to the Kedra property. The Tribunal will order an appropriate reduction in the Kedra section
29 and 30 allowances to reflect this correction to the Report.
The Curtis property is located outside the marsh on the north side of the North Canal Road, about 1.0 km east of Highway 400. The existing canal is located on land owned by the Curtises on the south side of Canal Road, inside the marsh. The northern bank of the canal approximately follows the Curtis' southern lot line. Canal Road is located on top the canal berm, immediately south of the existing canal. Along the Curtis land, the proposed work is described as a "Full Relocation" which will relocate the canal to the north onto the Curtis land. The Report proposes using excavated soils to fill in the existing canal. The Curtises were represented by Adam White and Ian Donnell. Mr. White commenced the presentation and summarized the Curtis' appeal
concerns as:
Mr. White submitted that his client was entitled to compensation for 4.2 acres of land at $32,000 per acre, plus $20,000 for the value of the trees, plus legal costs of $32,500 and costs thrown away of $1,500. This calculates to a total of $188,400. In addition, he argued for a letter of indemnification from the Municipality. Mr. Lawrence Curtis testified that he and his wife purchased the property in October 1995, for about $3,000 per acre. The property has some workable areas, some pasturelands and about 60% of the land is bush. The property line extends to the north edge of the existing canal. While the zoning of most of the land is agricultural, there are about ten acres zoned as EP located along the canal. Before buying the property, the Curtis' appraisal by Central Ontario Appraisals, dated May 29, 1989 placed the value of the property at $1.76 million. The Curtises asked Ms. Cairns, a friend in the real estate business, to provide an opinion of the current estimated market value of the property. The Curtises filed that written opinion but the author was not called to testify. The opinion estimated the present value at about $2.6 million or around $24,000 per acre. Mr. Curtis reviewed recent property sales in the vicinity as well as the compensation in the Report for the Kedra property and a municipal acquisition for land near the Kingsley Bridge. The property sales all reflected property values greater than the $1,200 per acre provided for bush lands in the Report. The compensation in the Report for the Kedra property used a substantially greater value per acre. Similarly, the municipal acquisition of a small piece of private lands for the Kingsley Bridge used land values substantially greater than $1,200 per acre. Mr. Curtis testified he was at a loss to explain the differences in the land values compared to the $1,200 per acre in the Report. Mr. Curtis testified that they had harvested 90-100 hardwood trees from their property under a commercial contract in 1997 for about $18,000 or about $180 per tree. He said he could not explain the difference between that value and the value determined by the Engineer's arborist, which he thought was about $26 per tree. Mr. Curtis used photographs to make his point that any arborist looking into their property from across the canal would have limited ability to see further than thirty to forty feet into the property. Mr. Curtis felt that if the value per tree from the 1997 tree contract was used the loss of trees would amount to about $28,000. Mr. Curtis testified that, with the canal relocation, they would lose a strip of soil along their southern lot line twenty-four metres wide by a depth of about ten feet. The soil excavated from that area will fill the existing canal. He explained how the property owners to the south of them would benefit from that soil and that he should receive fair compensation for that soil. Mr. Curtis testified that he understood that, once the works are completed, they would own the canal that passes through their property. He expressed concern that he and Mrs. Curtis will be liable for loss and injuries in the canal on their property. He explained he was unaware of any protection or indemnification they might have. Under cross-examination, Mr. Curtis conceded he was unaware how Ms. Cairns allocated that estimated value between the land and the buildings on the property. Mr. Curtis was unaware if Ms. Cairns was an appraiser and he was unaware if she had any forestry qualifications. He also conceded she had not walked over the property to produce her letter of opinion but she had previously been to the property. He conceded that the similar properties he reviewed in chief were not in the EP zone and he agreed that zoning designation could reduce the value. Mr. Curtis confirmed that their lands were subject to spring flooding but that he was not frequently down in that area. He agreed their lands were outside the marsh and the land in issue was bush land. He confirmed the land acquired for the Kingsley Bridge was unrelated to the Holland Canal and it was a much smaller piece. He indicated that he would cut and sell the trees along the canal if the drainage works proceeded but only if he was not compensated for the trees. Mrs. Curtis also testified and explained her concern over their liability during the canal work and into the future. She felt they should have a letter of indemnification from the Municipality. She also confirmed they were seeking fair market value for the land to be used for the canal relocation and, if they could not get that, they were seeking the fair market value for both the trees and the soil. She believed that the 4.2 acres to be used for the canal could be part of a parkland dedication in any development proposal. She testified she believed there were 180 to 300 mixed trees along the canal that will be lost. She testified most were sugar maple, hickory, ash and oak. She provided pictures she took along the canal that showed the trees. Under cross-examination, Mrs. Curtis conceded she did not know what Ms. Cairns' qualification as MVA meant. She also confirmed she did not know if the Municipality would permit low wetlands along the canal to be used for parkland dedications. She expanded on her liability concerns with examples of someone drowning in the canal or snowmobiling into a tree. The Curtises called George Eng to testify about peat resources. Mr. Eng has been a peat farmer since 1987. Because of his long experience in the industry, he was qualified to give opinion evidence about peat and peat farming. Mr. Eng never visited the Curtis property. He was familiar with other lands on the canals. He explained peat is organic material that can be excavated from the earth and, after allowing it to dry, it is then marketed for greenhouse and gardening uses. In the ground, peat can be worth $8-9 per cubic yard. It can retail for $20-$25 per cubic yard. He explained that there is peat in the Holland Marsh that is good for vegetables and flowers. In cross-examination, Mr. Eng confirmed that to get a permit to extract peat, the property owner is required to do an environmental assessment. He confirmed that he had not done any testing of the Curtis land or the neighbouring lands to determine if there was any peat present. He acknowledged that the lands could have little or no peat. The Municipality called Jack Winkler, a registered professional forester since 1981. Based on his qualifications and experience and with the consent of all parties, Mr. Winkler was qualified to give opinion evidence as an expert in forestry. Mr. Winkler explained that the Engineer hired him to look at the properties where the canal was to be relocated to give an estimate of the timber value. In July 2008, he traveled the Holland Marsh along both the north and south canal where it was accessible by road. On the north canal, he only looked at the trees on the north side of the canal. During that tour, he looked at the timber on the Curtis property. On the morning of his evidence, he returned to the area and reviewed the Curtis lands and trees again. On both tours, his viewing point was from Canal Road across the canal to the south. He explained that his approach was that he walked onto a property to the west of the Curtis lands and paced off a distance about 22 metres deep, which is the depth of the relocation. He measured the trees in that area. He then walked along Canal Road assessing the trees along the canal relocation route. He described the trees as hardwood bush, mostly ash and some silver maple (which he described as soft), elm and a few cedars. He described the tree size as uneven. He explained how he was able to do a tree count as he walked along Canal Road. He also explained that he gave the benefit of any doubt about a tree to the property owner by assigning the tree value. Returning on the day of his evidence, he explained he could see much further with the leaf cover off and he believes his earlier assessment overestimated the tree value. Mr. Winkler testified that the price of timber has gone down from where it was in 2008 when he did his first inspection. Despite extensive cross-examination, Mr. Winkler was adamant that he had not undercounted the trees or the estimated value. When presented with the tree photos taken by Mrs. Curtis, he testified the trees shown were silver maple, ash and elm. The Municipality called Frank Jonkman, a life-long area resident and
has been the Drainage Superintendent for the Holland Marsh for the past
three years. Mr. Jonkman testified that some areas along the canal remain under water from the spring melt until September each year. He described that as typical of the lands encompassing the Bonigut, Curtis, Kedra and Barlow Square lands. Mr. Jonkman introduced photographs showing the Municipality's tree clearing effort using a barge on the canal and operating onto flooded portions of land outside the canal. He explained that he has taken the barge in the photos onto both the Bonigut and Curtis properties while they were flooded to remove fallen trees that block flows through the canals. The Municipality called Art Janse and he repeated much the same evidence he gave during the Bonigut and Kedra appeals. Mr. Janse confirmed that the Jonkman photos showed the kind of water levels and maintenance that were typical during his time as Drainage Superintendent between 1981 and 2003. Mr. Janse explained that before the 1980s, the water level in the canal was lower but since the mid 1980s Trent Severn Waterway Study, the water level in that system, which includes Lake Simcoe, was maintained at higher levels until July each year and then during hurricane season (from August on) the water levels are lowered. As a result, it is not until late July or early August each year that the canal water level drops to within the canal banks. He has seen a dramatic increase in trees toppling over with the increased water levels since the 1980s. He testified that between Highway 9 and Cook's Bay on Lake Simcoe there is no fall in the land - it is flat. He described how, in a strong wind, the water in the canal can flow either upstream or downstream. He showed photographs marked as exhibits that he took on the Curtis land within two weeks of the beginning of the hearing showing how saturated the lands remained into October. The Engineer testified about how he developed the allowances provided to the Curtis property in the Report. The Engineer based his $5,350 section 29 allowance first on the canal width of 27 metres along 630 metres of the Curtis' southern property limit. That is 17,010 square metres or 1.7 hectares at $3,000 per hectare or $5,103 for the use of the land for the drainage works. He then added the maintenance corridor width of 3 metres by 630 metres. That is 1,890 square metres or 0.188 hectares at $1,250 per hectare or $236 for the maintenance allowance. He testified he rounded the total up to $5,350. The Engineer based his section 30 damages allowance of $2,126 on the 27 metre width by the 630 metre length by $1,250 per hectare. The Engineer testified he developed those rates per acre based on his experiences developing allowances throughout the province and then he considered local data that has been alluded to earlier in respect of the Bonigut and Kedra appeals. The Engineer also testified he has previously done drainage projects inside the Holland Marsh. He explained that his section 29 allowances, for land taken, for the fertile agricultural lands within the Marsh on those smaller drain projects were $10,000 per acre. He considered the rates for that kind of land when developing the section 29 allowances in issue because the lands in issue: generally have no agricultural use; have no significant timber value; and, have no development potential. As a result, he considered that $1,200 per acre would be generous. He also explained that his previous section 30 allowance for damages, of $3,500-$4,000 per acre for projects inside the Marsh on the cultivated agricultural lands. Therefore, he explained that his section 30 allowance of $500 per acre for these bush lands outside the Marsh was comparatively generous. He explained that, while he considered Mr. Winkler's assessment of the tree value, he only used it for two properties with high saw log value. The Curtis property was not one of those two properties. He did not adjust the section 30 allowance of $500 per acre for the Curtis tree value because he believed he would simply leave the harvested trees cut and piled for the Curtis, without any deduction from that allowance. The Engineer testified that the only direction the Act provides him about his section 29 and section 30 allowances is from section 11, which gives him his overall duties and direction. He confirmed he is not obliged to obtain forestry assessments or appraisal reports, nor is he obliged to obtain land surveys on all properties. The Engineer testified that section 16 of the Act directs the Engineer on how to deal with excavated material. He testified that under that section he determined the excavated material would be used in the construction to fill in the existing canal and to construct the berms. He confirmed that the soils consultant that did some test boring determined that the peat in the area of the Curtis property was an average depth of about three feet, was not fully decayed, and was fibrous in nature. He explained that he is treating the Curtis property the same as all others along the canal. He testified that he based the Kedra allowance on what he believed the legal use of that land to be at the time the Report was completed. However, based on what he learned since then about the inability of Kedra to maintain the legal non-conforming uses status, he testified that the allowance for Kedra should come down to the same basis as the allowance for Curtis as opposed to raising the allowance for Curtis. The Engineer explained he learned about the true status of the Kedra property just before the hearing. Under cross-examination, the Engineer confirmed that, in his 40 years practice as a drainage engineer, he had never faced the liability issue concern raised by the Curtises. He advised that he always believed that if there ever was any liability issue it would be part of a municipality's insurance coverage. The Engineer confirmed he never considered the marketable value of the soils. The Engineer confirmed he did consider the Winkler report about the value of the trees in his section 30 allowance but, since his Report gave all property owners the right to mark and keep any trees they considered valuable, he did not need to adjust the allowance. The Engineer explained that, when he completed the calculation of the
allowances, he sat back and asked himself the question: "is it fair
and reasonable?", to confirm his work. He also conceded he never spoke directly with the Curtises or to either of their neighbours. He agreed that this is a substantial project for his company and they will receive a consultant fee for their services. The Engineer disagreed with the Curtis' counsel that the process would be shorter if he had used the services of a real estate appraiser. He testified that appraised values of the land used might have been less than his allowances, which may have lead to more appeals. Curtis FindingsThe area of the Curtis lands proposed to be used in the canal relocation are zoned "EP" which is an environmentally protected zoning designation as well as "marsh buffer" in the OP and "natural heritage" in the provincial plan. No building can take place in an EP zone and the area of the EP zone cannot be used to calculate land area for any other zoning provision or any parkland dedication. No fill can be added or removed from an EP zone. The Curtis lands proposed for use in the canal relocation are at elevations that are below the seasonal levels of Lake Simcoe and, as a result, the lands are presently subject to flooding and are under water as much as nine months of the year. The trees on the Curtis lands in the area of the canal relocation have no commercial timber value. While the Cairns letter of opinion on property value was filed, without the author present the Municipality had no opportunity to test that evidence through cross-examination. Therefore we attach minimum weight to that opinion. As previously noted, when an appellant comes before this Tribunal, challenging
allowances as too low or too high or wrong or unfair, it is incumbent
on the appellant to present cogent evidence demonstrating that to be the
case. In establishing the value of a portion of a parcel of land along
the canal, it is essential that the value established relates only to
that part. The property appraisals presented provide only an average value
for the total property which includes buildings, improved areas of the
property, access to roads, and other improvements. In this case, it was
incumbent on the appellants to provide a substantiated value for the section
of land involved in the project and the Curtises did not adduce any cogent
evidence to satisfy us that the Engineer's estimate of the allowances
was wrong. While not a qualified or licensed real estate appraiser, the Engineer has completed over 800 drainage reports. In each of those reports, he discharged a statutory duty to estimate the value of allowances for the use of lands and the allowances for damages. That experience developed over forty years in practice qualifies the Engineer to make estimates of value. In the circumstances of this case, we place a great deal of weight on the Engineer's evidence about his estimate of land values for the Curtis allowances. We therefore find as a fact that the section 29 allowance to the Curtis property of $1,200 per acre for bush land outside the Marsh is reasonable and fair as is the $500 per acre allowance for the maintenance strip. We also find as a fact that the section 30 allowance to the Curtis property of $500 per acre for bush area outside the Marsh is reasonable and fair. The Tribunal does not have jurisdiction to grant declaratory relief or
decide issues of third party liability. Therefore, while that issue concerns
the appellants, the Act does not provide for any related relief, even
if sufficient evidence had been provided to us.
The Barlow Square properties are located outside the marsh on the north side of the North Canal Road, about 2.0 km east of Highway 400. Lots 10 and 11 are separated by the unopened Sideroad 10 road allowance. The existing canal is located on the Barlow Square land with the southern bank of the canal approximately following the Barlow Square southern lot line. Canal Road is located on top the canal berm immediately south of the Barlow Square Inc. southern lot line. Along the Barlow Square land, the proposed work is described as a "Full
Relocation" which will relocate the canal to the north. The Report
proposes using excavated soils to fill in the existing canal. Along the
entire southerly limit of the Barlow Square property line, what was under
the canal water will become filled in, creating a strip of land owned
by the Barlow Square between the relocated canal and Canal Road. Mr. Dejean argued that Barlow Square should receive compensation based on $15,000 per acre, failing which the compensation should be $9,000 per acre or, at the bare minimum $6,400 per acre. Mr. Dejean also argued that the Municipality should issue a letter of indemnification to Barlow Square for any third party liability. Mr. Dejean testified that Barlow Square understood the need for the drainage works but challenged the allowance compensation as inadequate. He testified the lands used in the work should be valued on a full parcel basis. He provided property value evidence from the internet and Multiple Listing Services (MLS) showing seven transactions in the vicinity where the values per acre were above the $1,200 proposed in the Report. He also testified that the annual property assessment that the Municipal Property Assessment Corporation (MPAC) completed for municipal property taxation, valued the lands at $804,000, or about $6,400 per acre. Mr. Dejean testified that, although the Drainage Act does not provide that the Municipality buy the land used for the drainage works, the Municipality should buy the land. Under cross-examination, Mr. Dejean agreed he was familiar with development projects and servicing such projects. He also conceded that, while land was typically sold at a price per acre, land would have areas that may be more or less valuable. He conceded the Barlow Square property had both low land and high land, which if it was severed, some acres would be worth more than others. He conceded the low land at the canal has no potential for future land development or for agriculture. In cross-examination, Mr. Dejean conceded that there were many differences between the Barlow Square property and similar properties in the vicinity that have been sold, including location, zoning, and the presence of buildings. He explained that his original formula for the allowance was based on $15,000 per acre, which was the asking price the Barlow Square lands had most recently been listed for sale, but he conceded that Barlow Square had been unable to get that price from anyone in eighteen months while the property was listed for sale. He also conceded Barlow Square had no appraisal evidence to show the overall property value would be less with the EP area along the canal. The Engineer testified that his approach to the land value allowance was similar to his approach throughout Ontario. He explained he felt that, based on the use that could be made of the canal lands, the $1,200 per acre for bush lands was more than fair. He explained that, when he sought out local value information, he received no new data that convinced him the value was more than $1,200 per acre, so he used the rate of $1,200. He explained he used the same methodology for Barlow Square as he had for all the other lands along the canal. He explained the lands along the canal were all similar low lying, mostly flooded lands. Under cross-examination, the Engineer conceded that any landowner, himself included, would want more for their land. He suggested that was human nature. When challenged about why he would value the canal lands less than the MPAC valuation, he explained that when he looked at the area to be used for the canal he considered its use. Here the area is low and is flooded for much of the year. That resulted in a reduced value. In addition, he considered if there was any value in the land for agriculture, forestry or re-development. In each consideration, he concluded there was no value of significance. The Engineer testified that, if he felt it necessary, he would have consulted an appraiser but based on his experience he felt the allowances were more than generous in the circumstances due to the characteristics and potential use of the land. He explained that, after developing his allowance value, he asked himself if he would buy ten acres of the land along the canal at $1,000 per acre. The answer to his own question was that he would not make such an investment. Based on that self-examination, he was satisfied that $1,200 an acre was reasonable and fair. To emphasize how little use could be made of any of the lands along the canal, the Engineer testified that as part of developing the Report and recommendations, two areas of trial work were completed on the canals that included relocation the canal. He explained that they had to wait until August for the water levels along the canal to drop low enough for them to get on the lands to do the relocation work. Mr. Art Janse testified, reiterating the evidence he provided in the Bonigut appeal, about the characteristics of the Barlow Square lands and the flooded nature of the area throughout most of the year. He also testified that the Municipality had previously rejected an application by Barlow Square to develop its lands. He confirmed that, based on his thirty-six years with the Municipality, there was no development potential of the lands along the canal because of the flooded nature of those areas. He explained that, to the best of his knowledge, there are no development applications being accepted by the Municipality for any lands along the canal. Barlow Square Findings The Barlow Square lands proposed to be used in the canal relocation are zoned "EP" which is an environmentally protected zoning designation as well as "marsh buffer" in the OP and "natural heritage" in the provincial plan. No building can take place in an EP zone and the area of the EP zone cannot be used to calculate land area for any other zoning provision. No fill can be added or removed from an EP zone. The Barlow Square lands proposed for use in the canal relocation are at elevations that are below the seasonal levels of Lake Simcoe and, as a result, those areas are presently subject to flooding and are under water as much as nine months of the year. The trees on the Barlow Square lands in the area of the canal relocation have no commercial timber value. As previously noted, when an appellant comes before this Tribunal challenging allowances as too low or too high or wrong or unfair, it is incumbent on the appellant to present cogent evidence demonstrating that to be the case. In establishing the value of a portion of a parcel of land along the canal, it is essential that the value established relates only to that part. The property appraisals presented provide only an average value for the total property which includes buildings, improved areas of the property, access to roads, and other improvements. In this case it was incumbent on the appellants to provide a substantiated value for the section of land involved in the project. Barlow Square did not adduce any cogent evidence to satisfy us that the Engineer's estimate of the allowances was wrong. We therefore find, as a fact that the section 29 allowance to Barlow Square of $1,200 per acre for bush land outside the Marsh is reasonable and fair as is the $500 per acre allowance for the maintenance strip. We also find, as a fact that the section 30 allowance to Barlow Square
of $500 per acre for bush area outside the Marsh is reasonable and fair.
The Milleman property is located inside the marsh immediately north of the south canal at the northwest corner of the Dufferin Street and King Street intersection. No construction is proposed on the Milleman property. As a landowner inside the marsh, the property is assessed $7,978 for the benefit their lands will receive from the improved protection provided by the canal and berm improvements. The nature of the Milleman appeal is that 1.12 acres of their land is part of a wetland complex classified as conservation lands. As a result, that 1.12 acre (0.453 ha.) portion of their lands enjoys an exemption from municipal property taxation. The Millemans' argument was that they should not pay any assessment for the drainage works, since their land enjoys a partial property tax exemption. Mrs. Milleman argued that rare birds inhabit the conservation lands and if they were obliged to pay the assessment, it would act as a disincentive to taxpayers to preserve conservation lands. Mrs. Milleman testified that the Ministry of Natural Resources encourages qualifying landowners to participate in the Conservation Land Tax Incentive Program to preserve and protect conservation lands. She testified that the Drainage Act assessment was like a property tax and since the property enjoyed a partial tax exemption, it should also be exempt under the drainage Report. On cross-examination, she conceded that 2009 was the first year they had applied under the Tax Incentive Program and that they had to apply each year to continue the partial tax exemption. The Engineer testified that he was unaware of the partial tax-exempt status of the Milleman lands and that he had not previously encountered that Tax Incentive Program. However, he testified that with this new knowledge he would not alter the assessment. He explained the assessment for benefit to lands inside the marsh was applied consistently to all lands and he saw no reason to change the assessment for the Milleman lands. He testified his Report does not dictate who pays the assessment but rather determines which land is liable for assessment. The Engineer confirmed that he made his assessment under the Drainage Act and that the assessment was not a municipal tax. He also confirmed that, while provincial and municipal property might be exempt from municipal taxation, it is always assessed under the Drainage Act if located within a drainage works. Mr. Sid Vanderveen testified. He has been a professional engineer since 1987 and the Drainage Coordinator for the Ontario Ministry of Agriculture, Food and Rural Affairs for nineteen years. He explained that he spends about ninety percent of his time on drainage matters. He provides advice to drainage professionals and the public. On consent of all parties, after hearing Mr. Vanderveen's qualifications, he was qualified to provide opinion evidence as an expert in drainage. Mr. Vanderveen testified that he was familiar with the Tax Incentive Program. He explained that, under the Drainage Act, while all land in a drainage watershed was assessable, not all land necessarily paid the assessment. He pointed out section 61(5) of the Act that provides that the assessment made against tax-exempt lands is paid for by the municipality that imposed the assessments. Milleman Findings In his opening remarks at the start of this hearing, the Engineer explained that 75% of the land assessment costs of the project were charged to the lands "inside the marsh" and that this cost was distributed over the properties inside the marsh on a uniform per hectare basis. The Milleman property was assessed a benefit assessment of $7,978 based on their 3.225 hectare parcel, at the same rate per hectare as all the other properties inside the marsh. The Tribunal understands that the Milleman property will enjoy municipal property tax relief for 1.12 acres (0.453 ha.) which is about 1/7th of their property due to its designation as "conservation land". Municipal property taxes are based on the total real estate value of the property including buildings and improvements. Charges under the Drainage Act (also referred to as "assessments) are not a municipal property tax but a charge against each property as their share of the cost of constructing this project under the Drainage Act. There is no mechanism under the Drainage Act for the Engineer to apportion the benefit assessment to anything other than a property identified by the property roll number. Despite the fact that a municipality might add a Drainage Act assessment to a property tax bill for administration and collection purposes, the drainage assessment is not a property tax. The Millemans may seek some tax relief from the Municipality under section 61(5) of the Act. Therefore, the facts do not support the Milleman appeal and the Act does
not allow the Milleman appeal.
Gleason owns a private bridge over the canal which is used as the access to and from his property. The Report originally proposed to tear out that bridge and compensate Gleason in the amount of $60,000.00. As noted in the Overview to these reasons, the Gleason appeal was adjourned at the request of the parties pending settlement discussions. Ultimately, the parties filed Minutes of Settlement. These minutes outlined that the section 29 and section 30 allowances provided to Gleason in the Report do not change. However, the minutes consent to the increase of the section 33 allowance for Gleason's loss of access, by $154,600, from $60,000 to $214,000, and the section 24 special assessment of $2,500 decreases to $0 because of the settlement. These changes reflect an overall increase in cost of the drainage project. The settlement requires that the replacement private bridge will be constructed by Gleason to a standard to meet the requirements of the drainage project and in future will be maintained by the landowner. The Tribunal asked the parties to the Gleason appeal for written submissions about how the increased costs were to be dealt with in the Report. Gleason Findings The $154,600 allowance increase will be addressed by decreasing the estimated Contingency Allowance in the Report by $154,600. The $2,500 decreased special benefit will be addressed by increasing the outlet assessment against all roads in the watershed by $2,500, apportioned pro rata. AnalysisThe arguments of Bonigut, Curtis and Barlow Square all relied on the 1898 decision of the Referee in Rhodes et al. v. Township of Raleigh in respect of the principles of damage compensation under the Municipal Drainage Act. However, that decision does not reflect the provisions of that legislation in issue. No one provided us with a copy of the legislation applicable in 1898. The decision recites that it arises from a claim for "damages to land" caused by the enlargement on construction of two drains in Kent County. What is apparent from the decision is that case did not involve an allowance determined by a drainage engineer such as we are concerned with in this case. Therefore, we conclude that the Rhodes case is of little practical use to us in this case. We also do not accept that the principle of stare decisis applies so
that the Referee's decision in Rhodes controls or binds this Tribunal.
At its highest, Rhodes is a decision of coordinate jurisdiction with this
Tribunal. The Drainage Act provides the Engineer with the following guidance about allowances for land used for drainage works.
In "estimating" the "value" of the land, the Engineer is bound by the section 11 duty to apply the "best of the engineer's skill, knowledge, judgment and ability, honestly and faithfully …". The Drainage Act does not require the Engineer to employ land appraisers to determine those estimates of the value of land. We accept the Engineer discharged his section 11 duty when estimating the value of the land in this case. The valuation exercise involved considering the nature and amount of land to be used for the canal and maintenance corridor. In our view the proposed canal relocation and maintenance corridor in the four section 29 allowance appeals are quite similar. The relevant aerial photographs incorporated into the Report drawings
show that, from that altitude, there is no physical feature that differentiates
that corridor on the Bonigut lands from the Curtis lands, from the Barlow
Square lands from the Kedra lands. The physical characteristics reveal the corridor is obviously unsuited for any agricultural or forestry pursuits. The expert evidence of the only qualified forester confirms that the corridor is unsuited for forestry. The uncontradicted evidence of Art Janse was that the land in the corridor is under water for six to nine months of each year due to spring run-off and the Trent Severn system maintaining a high water level in the system until around August each year. The planning designations and restrictions on the land within the corridor is the same. The result of those regulations is the owners cannot use the land for housing or for any development. The owners cannot remove or add fill to the corridor purposes. The owners cannot receive development credit for parkland dedication of the land in the corridor. The Engineer's classification of the lands as "bush" land is reasonable given its characteristics. We accept as a fact that he has previously completed hundreds of land valuations, some of which were on similar "bush" lands. While not a land appraiser by profession, we find as a fact that the Engineer's experiences with valuing land under the Act, eminently qualify him for the valuation exercise called for in the Act. For that reason, we accept that the Engineer's valuation of the lands for the section 29 allowances at $1,200 per acre ($3,000/hectare) as a reasonable and fair estimation of the value. In addition, none of the Appellants led any reliable direct evidence providing us with the basis for any different finding of fact. We also find as a fact that the evidence does not support a finding of valuable peat reserves beneath the Appellants lands. The anecdotal evidence about possible peat reserves in the absence of any soils tests confirming such reserves does not provide us with the evidentiary foundation to make any such findings of fact. That bush land value will apply to the Bonigut, Curtis, Barlow Square
and Kedra lands. We find that the Engineer discharged his section 11 duty in the section 30 allowance at $500 per acre ($1,250/hectare) which we find to be fair and reasonable. We accept that the Engineer's experiences in estimating damages under the Act eminently qualify him for that valuation exercise. In addition, none of the Appellants led any reliable direct evidence providing us with the basis for any different finding of fact. There was direct evidence from the qualified forester that there was no significant timber value in any of the trees on the Bonigut, Curtis, Barlow Square and Kedra lands. There was some anecdotal and hearsay evidence led by the Appellants about tree values. While the Engineer satisfied us that the section 30 allowance is reasonable and fair, we are sensitive to the strong views of the Appellants that their trees are more valuable, even in the absence of any objective evidence to support those views. Therefore, we find that the Appellants should be entitled to identify trees with marketable timber value and the Engineer will be directed to cut and pile the marked trees on the Appellants' land next to the maintenance corridor for use by the landowners. If the landowners and the Engineer cannot agree on which trees have marketable timber value, we direct the Engineer to hire forester Jack Winkler, or if he is unavailable another qualified forester, to determine if the trees have marketable timber value and his decision will be final. Bonigut and Curtis sought costs of the appeals. Bonigut asked for costs of $16,347.79. Curtis asked for costs of $34,000.00. Section 51 of the Act gives the Tribunal broad discretionary powers that
we interpret as including the power to award costs in appropriate circumstances.
In addition, it would be an extremely unusual case where an unsuccessful Appellant would recover its costs from the successful Respondent. Therefore, we exercise our costs discretion and award no costs to any Appellant. Order of the TribunalFor the reasons cited above, the Tribunal orders that:
9. There will be no other order of costs and all parties are responsible for their own costs. Dated at Brampton, Ontario, this 12th day of March, 2010. Pour plus de renseignements : Sans frais : 1 888 466-2372 poste 63433 Local : 519 826-3433 Courriel : appeals.tribunal.omafra@ontario.ca |
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