Jim McIntosh

The Municipality of Chatham-Kent requested a review of a prior Tribunal decision that set aside an engineer's report (the Spriet Report) for a municipal drain and ordered the Municipality to retain an independent coastal engineer.

The Municipality argued the Tribunal exceeded its jurisdiction, improperly relied on hearsay evidence, and erred in summoning the coastal engineer to testify at the review hearing.

Applying the reasonableness standard of review from Vavilov, the Review Panel affirmed the prior decision.

The Panel held that the Tribunal had the statutory authority under the Drainage Act to procure independent engineering reports and that the Statutory Powers Procedure Act permitted the admission of hearsay evidence.

The Review Panel found no breach of procedural fairness in summoning the coastal engineer to allow for cross-examination, and concluded the original panel provided rational reasons for setting aside the Spriet Report.

Several landowners appealed the assessments and allowances in the Engineer's Report for the South Innisfil Creek Drain Improvement under the Drainage Act.

The appellants argued that their assessments were too high, that the municipality should bear more costs due to past lack of maintenance, and that the drain improvements would not benefit them until downstream culverts were replaced.

A golf course owner appealed the allowance for loss of access, arguing it should cover four bridges instead of one.

The Tribunal dismissed the assessment appeals, finding the engineer's allocations fair and reasonable.

However, the Tribunal allowed the golf course's appeal in part, increasing the allowance for one bridge from $41,600 to $137,500 based on expert evidence, while agreeing that only one bridge should be funded by the drain.

The applicant municipality sought an extension of time under section 100 of the Drainage Act to apply for a review of an engineer's account under section 72.

The account had been paid in 2016, but a 2017 Tribunal decision heavily criticized the engineer's report.

The municipality delayed until December 2018 to seek the extension.

The Tribunal denied the extension, finding no exceptional circumstances to justify the delay between the 2017 decision and the 2018 application, and concluding that the balance of prejudice favoured the respondent engineer.

The appellants appealed the Engineer's Report for the repair and improvement of the Esseltine Drain under sections 48 and 54(1) of the Drainage Act.

The appellants, who own agricultural properties, argued that the proposed drainage works provided no benefit to their lands and that their assessments were disproportionately high compared to the urban and greenhouse developments contributing to the increased water flow and erosion.

The Tribunal accepted the evidence of the respondent municipality's engineers, finding that the assessments were calculated using standard methodologies and were fair and reasonable.

The Tribunal concluded there was no evidence to support modifying the Engineer's Report or the assessments, and dismissed the appeals.

The appellant appealed an engineer's report under the Drainage Act regarding the St. John's Marsh Drain.

The appellant argued that the proposed abandonment of a section of the drain within conservation lands and the installation of a weir would exacerbate flooding on his agricultural lands.

The Tribunal accepted the engineer's recommendation to abandon the unfindable section of the drain within the conservation lands but ordered the removal of the proposed Newbury Weir from the report to prevent further aggravation of the appellant's drainage issues.

The appellant appealed the benefit/outlet assessments for the Workman Municipal Drain 2018 under section 54 of the Drainage Act.

He argued his assessment was too high compared to downstream properties and that upstream wetlands would receive an improved outlet.

The Tribunal found it had no jurisdiction over his other concerns regarding the need, design, and cost of the works, as he missed the deadline to appeal under section 48.

The Tribunal accepted the uncontradicted evidence of the engineer that the assessments were developed using the modified Todgham method and were fair and equitable.

The appeal was dismissed, subject to an amendment to the engineer's report to include an inlet control device to ensure the upstream wetlands do not receive an improved outlet.

The appellants appealed their drainage assessments for the Purbrook Drain under section 54 of the Drainage Act.

The appellants argued they received no benefit from the drain, noting their lands were zoned for environmental protection and could not be farmed.

The Tribunal dismissed the appeals, finding that the appellants were attempting to re-litigate a 1981 decision of the Ontario Drainage Tribunal and had failed to establish any change in the state or use of their lands since that time.

Requests for costs by both the municipality and the appellants were denied, as neither party's conduct during the proceedings was unreasonable, frivolous, vexatious, or in bad faith.