Don McNalty

The appellants appealed the decision of the Court of Revision regarding the benefit assessment for the reconstruction of a municipal drain under the Drainage Act.

The appellants argued that they had already paid for a previous drain improvement in 2014 that met their needs, and that the new drain primarily benefited upstream landowners by providing a deeper outlet.

The Tribunal accepted the evidence of the appellants' expert that the benefit assessment should consider the area of lands receiving benefit rather than just the length of the drain on each property.

The Tribunal ordered a 50% reduction in the appellants' benefit assessment, reallocating the costs pro-rata among the other assessed lands.

The appellant appealed a municipal council's decision not to proceed with a request for drainage improvements under section 78 of the Drainage Act.

The Tribunal dismissed the appeal without a hearing, finding it lacked jurisdiction because subsection 78(4) only contemplates appeals after an engineer's report has been prepared.

The appellants appealed the final engineer's report for the proposed Frank Szeder Drain under section 48 of the Drainage Act, arguing that the project was delayed excessively and the proposed design was flawed and too costly.

The Tribunal found that while the 12-year delay was excessive, the appellants failed to provide evidence that the proposed drainage work was technically flawed or that the costs outweighed the benefits.

The Tribunal dismissed the appeal and affirmed the engineer's report, but limited the chargeable engineering costs to $108,130 to account for the excessive delay.

The appellants appealed under section 64 of the Drainage Act regarding the construction of the Desroches Municipal Drain across their farm.

They claimed damages for crop loss and site cleanup, alleging the contractor commenced work in wet conditions contrary to an agreed-upon start date, failed to separate topsoil, and enlarged the working corridor.

The Tribunal dismissed the appeal, finding no evidence of an agreed start date and concluding that the construction and site restoration were completed in accordance with the Engineer's Report.

The Tribunal also noted that several of the appellants' claims regarding the drain's design and crop damage allowances should have been appealed earlier under section 48 of the Act.

The appellants appealed their assessment under the Drainage Act for the replacement of the McClure Bridge, arguing their lands drained into a different drain than the one assessed.

The Tribunal found that the natural flow of water from the appellants' properties was towards the Curry Marsh Drain West Branch, not the Crawford Drain as relied upon by the engineer's report.

The Tribunal concluded the engineer should have recommended a new watershed investigation upon discovering contradictions between historical reports and actual water flows.

The appeal was allowed, and the appellants' assessment was removed and reallocated to the Township.

The appellants brought a motion seeking declarations that the respondent municipalities lacked jurisdiction to refer an engineer's drainage report back for reconsideration, arguing the matter was before the Drainage Referee.

The Tribunal dismissed the motion, finding that Section 57 of the Drainage Act provides clear authority for a municipal council to refer a report back to the engineer for reconsideration.

The Tribunal also noted there was no evidence of improper motive and that raising the jurisdictional issue at this stage was inappropriate.

The appellant appealed the benefit assessment for the Cobb's Lake Creek Municipal Drain under section 54 of the Drainage Act.

Prior to the hearing, the parties reached a settlement agreement to remove the benefit assessment for the appellant's property and redistribute the costs to other properties in Section 5 of the drain.

The Tribunal approved the settlement agreement under section 51(1) of the Drainage Act and ordered the respondent municipality to amend the Provisional By-Law to incorporate the settlement terms before giving it third reading.

Two appeals were brought regarding the Port Colborne Municipal Drain.

Port Colborne Quarries Inc. appealed under Section 54 of the Drainage Act, seeking to reduce the runoff coefficients used for their assessment, which had been increased by the Court of Revision.

Jack Hellinga appealed under Section 48, arguing his lands were improperly assessed for upstream work.

The Tribunal dismissed Hellinga's appeal, finding it lacked jurisdiction under Section 48 to hear an appeal regarding assessments.

The Tribunal allowed the quarry's appeal, relying on expert engineering evidence to restore the lower runoff coefficients originally proposed in the engineer's report.

The appellant appealed the assessments for the Geiger Drain under section 54 of the Drainage Act.

The appellant also brought a motion for an extension of time to file an appeal under section 48, which the Tribunal denied.

On the merits of the section 54 appeal, the Tribunal found that the majority of the engineer's assessments were fair and reasonable.

However, the Tribunal reduced the benefit assessment for Lot 5 regarding an engineered berm, finding no significant soil erosion to justify the specific benefit, and reduced the assessment for Branch C, finding the allowances should not have factored into the assessment calculations.

The appeal was allowed in part.

The appellants appealed their Outlet Liability assessment under the Drainage Act for the Komoka Drainage Works.

They argued the drainage works should be funded entirely by the municipality's Stormwater Management levy or that their assessment should be reduced due to an inappropriate equivalent factor applied to their agricultural land.

The Tribunal dismissed the appeal, finding that the appellants' properties were not in the Settlement area and did not pay into the Stormwater levy.

The Tribunal also found the engineer's use of a 1.0 factor for agricultural lands was fair and reasonable, and that the assessment was calculated correctly using the modified Todgham method.

The appellants appealed their municipal drain assessments under section 54 of the Drainage Act, seeking reductions in their outlet liability and benefit assessments.

They argued that a lower runoff factor should have been applied to their property, which is a provincially significant wetland, and that they received no benefit from the drainage works.

The Tribunal dismissed the outlet liability appeals because the appellants failed to provide expert evidence to contradict the municipality's engineer.

However, the Tribunal allowed the appeal regarding the $1,000 benefit assessment, reducing it to zero, as the property would not increase in value or be more easily maintained as a result of the works.

The appellants appealed the assessments in the Engineer's Report for the Highway 6 Drain under section 54 of the Drainage Act.

Two of the appellants withdrew their appeals at the hearing.

The remaining appellants and the respondent municipality reached a consent agreement to reduce the outlet liability assessment for the appellants' property and correspondingly increase the benefit assessment for the municipal wastewater treatment plant.

The Tribunal ordered the Engineer's Report amended in accordance with the consent agreement.