ONTARIO DRAINAGE TRIBUNAL
APPEAL:
Point Abino Municipal Drain (RE) City of Port Colborne Don Simmons, R. D. Winger, W. O’Connor, Marcy Properties, L. Ross, R.&H. Henning, O. Pfeifer, C.F. Kreiner, A.&M. Van Osch, O. Kolpack, Ray Haggerty, G. & J. Bysterbosch
Point Abino Municipal Drain (RE) 1983 ONAFRAAT 01
STATUTE:
Drainage Act
HEARING:
June 23, 1983
July 13, 1983
NEUTRAL CITATION:
1983 ONAFRAAT 01
DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATING TO THE APPEALS OF DON SIMMONS, R. D. WINGER, W. O'CONNOR, MARCY PROPERTIES, L. ROSS, R.&H. HENNING, O. PFEIFER, C.F. KREINER, A.&M. VAN OSCH, O. KOLPACK, RAY HAGGERTY, G. & J. BYSTERBOSCH, WITH RESPECT TO THE POINT ABINO DRAIN IN THE CITY OF PORT COLBORNE.
All the assessed parties within the City of Port Colborne were served with a copy of the Notice of Hearing by prepaid mail and invited to make representations.
The Appeal came before the Ontario Drainage Tribunal on the 23rd day of June 1983 at the hour of 9:30 o'clock in the forenoon at the Humberstone Township Hall, Port Colborne, Ontario.
At that time, there appeared before the Tribunal A. Pluhar, P. Eng., who prepared and presented the Revised Report dated the 24th day of September 1982.
D. Ceri Hugill, Barrister & Solicitor, appeared on behalf of Sherkston Beaches Limited. T.A. Beilby, Barrister and Solicitor, appeared on behalf of the Pére Abineau Park Association. Ray Haggerty, M.P.P. appeared on his own behalf. Don Simmons, Joseph Winger, Wm.J. O'Connor, Jr., Dr. Marcy, Mrs. D. Pfeifer, C.F. Kreiner, Mr. Van Osch and Gary Bysterbosch, Appellants, appeared and presented evidence. Several assessed owners addressed the Tribunal.
Patricia Premi, the Deputy Clerk of the City of Port Colborne, acted as Clerk of the Tribunal.
Upon hearing the submissions of the above-mentioned parties, the evidence submitted, and the material filed, IT IS HEREBY ORDERED THAT the City of Port Colborne proceed to adopt the Report as revised by By-law and proceed with the work subject to the following amendments being made:
(a) the Pumping Station at the outlet be deleted from the work;
(b) the name of the Haggerty Drain be changed to the Branch No. 1 Drain, all work on the Ron Haggerty property be deleted, and the benefit assessment assigned to Ron Haggerty be struck;
(c) the assessed properties of Wm. J. O’Connor Jr. are to be examined by the Drainage Engineer to ascertain whether they are contiguous unsevered lots to which minimum assessment ought to apply. If so, the changes are to be made.
(d) Because the purpose of this proposed Drain includes residential drainage and conservation considerations, which go much beyond the scope of traditional agricultural schemes, the Tribunal requests that the City of Port Colborne take all reasonable steps to ensure that all available grants or subsidies are secured with respect to the construction of this drain.
(e) No costs are awarded, and accordingly, all parties are responsible for their own costs.
Attention is drawn to Section 73 of The Drainage Act, 1975.
DATED July 13, 1983.
Delbert A. O'Brien Chairman Ontario Drainage Tribunal
REASONS FOR THE DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATING TO THE APPEALS OF DON SIMMONS, R. D. WINGER, W. O'CONNOR, MARCY PROPERTIES, L. ROSS, R. & H. HENNING, D. PFEIFER, C. F. KREINER, A. & M. VAN OSCH, D. KOLPACK, RAY HAGGERTY, G. & J. BYSTERBOSCH WITH RESPECT TO THE POINT ABINO DRAIN IN THE CITY OF PORT COLBORNE.
The Appeals were heard on the 22nd day of June 1982 in the City of Port Colborne. The Appeals were with respect to a previous order made on the 10th day of June 1981.
The drainage basins consisted of approximately 1,900 acres, embracing parts of three developed residential areas. Two of these developed areas, namely Pleasant Beach and Point Abino were subject to flooding in times of high run-off and conditions were such as to present a health hazard. The Municipal Drain which had been in existence since the beginning of the Century had not been cleaned since 1958 and parts of it were in the worst possible state of disrepair. The previous Order recommended certain minor upstream changes and had required that a pumping station be located at the outlet to maintain a constant level of water in the "Pere Abineau Marsh". The Order had made provision for appeals and numerous appeals were filed.
Once again, the arguments were in conflict. The philosophy of "I am not my brother's keeper" regrettably prevailed throughout the Hearing. There were, of course, exceptions, including the charming and generous President of the Pleasant Beach Owners' Association. The evidence was presented in general terms and consisted largely of opinion rather than fact. There was no professional evidence presented to assist the Tribunal other than that of the Drainage Engineer. Much of the evidence of upstream appellants advanced the notion that they should have better outlets, but downstream owners should bear the burden of the cost. Downstream owners wanted nothing done, asserting that nature should be left untouched, regardless of the calamities in the upstream areas. There appeared to be little desire to understand or accommodate the interests of other owners.
During the hearing, there was no possibility of a consensus developing because as each party presented his or her evidence, with few exceptions, they promptly left. The solicitors excused themselves and left with the permission of the Tribunal, but the others displayed, by their conduct, a total disregard for the evidence and opinions of their fellow citizens. Accordingly, the Tribunal was left with the problem of reconciling as best it could the conflicting points of view.
The Tribunal attempted to accommodate Mr. Haggerty by terminating all work on his property and by relieving him of the benefit assessment. The Tribunal also directed that the assessment of Mr. O'Connor be examined to ascertain if he was improperly paying more than one minimum assessment. The Tribunal remains firmly convinced that a low lift pumping station would greatly improve the reliability of the outlet and afford a feature of management to the "Pere Abineau Marsh" that would benefit all parties. However, in view of the opinions expressed at the Hearing, the Tribunal determined to delete the pumping station, mindful of the fact that the engineering had been completed and that it could be installed at any time in the future. With the pumping station removed, the need to consult with the Conservation Authorities with respect to the levels in the Marsh was no longer necessary.
Finally, in response to the argument of D. Ceri Hugill, Barrister and Solicitor, the Tribunal requested that the City of Port Colborne make maximum use of grants and subsidies to defray the cost of the work. This particular Drain is relieving residential communities and attempting to deal with a major conservation interest. The result is that considerably more costs will be incurred than if the object was agricultural only. Consequently, other sources of funding ought to be utilized.
DATED July 13th 1983.
Wilfred Roy, Member
Keith Benner, Member
E.C. Brisco, Vice-Chairman
D.A. O’Brien, Chairman