Stephen Brickman, P.Eng.

The applicant challenged the validity of a petition for a municipal drain and the resulting Engineer's Report.

The Engineer had defined the 'area requiring drainage' based on property boundaries and the presence of systematic tile drainage, excluding the applicant's farm because it theoretically had riparian access to a creek.

The Acting Drainage Referee held that the Engineer erred in law.

Property boundaries are not relevant to determining an area requiring drainage under section 4 of the Drainage Act, and the applicant's theoretical riparian access was not reasonably feasible.

The petition was declared invalid, the Engineer's Report was set aside, and the provisional by-law was quashed.

The applicants sought to set aside a 2018 engineer's report proposing improvements to the Filsinger Drain, arguing that section 78 of the Drainage Act does not authorize the abandonment of existing works and the construction of new works with significantly increased capacity.

The Acting Drainage Referee dismissed the application, declining to follow a 1988 Referee decision (Kilberg v. Wallace) that restricted capacity increases under section 78.

The Referee held that section 78 authorizes improvements that increase capacity to meet current engineering standards, and that section 19 permits the abandonment of existing works supplanted by such improvements.

Several landowners appealed the Engineer's Report for the Filsinger Municipal Drain under sections 48 and 54 of the Drainage Act.

The appellants challenged the inclusion of certain lands in the watershed, the scope and cost of the proposed drainage work, the right-of-way allowances, and the assessment calculations.

The Tribunal dismissed the section 48 appeals regarding the watershed and drainage work, finding the existing drain was in poor condition and the proposed work was necessary.

The Tribunal allowed Tyson Kraemer's section 48 appeal in part, increasing his right-of-way allowance.

The Tribunal also allowed the section 54 appeals in part, adjusting the maintenance assessments for the upstream reach of the closed drain, but otherwise accepted the Engineer's assessment calculations.