McDonald Drain (Re), 1995 ONAFRAAT 31

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

McDONALD DRAIN (RE) Township of Carnarvon A. McDonald

McDONALD DRAIN (RE) 1995 ONAFRAAT 31

STATUTE:

Drainage Act

HEARING:

September 13, 1995

DATE OF DECISION:

October 19, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 31

TOWNSHIP OF CARNARVON

McDONALD DRAIN

IN THE MATTER OF:

An Appeal of A. McDonald from the Report of J. C. Nicholls, P. Eng., dated November 8, 1991, on the McDonald Drain, in the Township of Carnarvon, in the District of Manitoulin.

DECISION

This Appeal came before the Ontario Drainage Tribunal on September 13, 1995, at the Township of Carnarvon Council Chambers, King Street, Mindemoya, Ontario.

All assessed owners and Tom Cooper, Ron Cooper and Gary Cooper c.o.b. as Cooper Engineering and Construction (the contractor) were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.

At that time there appeared before the Tribunal, J.C. Nicholls, P. Eng., who prepared and presented the Report, dated November 8, 1991; R. Walton, P. Eng., on behalf of the Township of Carnarvon; the Appellant, A. McDonald; R. Cooper a partner of, Cooper Engineering and Construction and other assessed owners.

The Clerk of the Township of Carnarvon, M.A. McCutcheon, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

1. IT IS ORDERED THAT:

Tom Cooper, Ron Cooper and Gary Cooper c.o.b. as Cooper Engineering and Construction be made a party to this Appeal.

2. IT IS ORDERED THAT:

the open reach of the McDonald Drain constructed pursuant to the Report of J.C. Nicholls, P. Eng., dated November 8, 1991, shall be excavated to the grade established in the Report from Sta. 0 + 00 to Sta. 0 + 585.

3. IT IS ORDERED THAT:

A new covered drain be constructed from Sta. 0 + 585 upstream as recommended under the heading "Recommendations" paragraph 1, items (ii) to (vii) in the Report prepared by Robert Walton, P. Eng., dated June 26, 1995 and filed as Exhibit #4 at the hearing of the Appeal.

4. IT IS ORDERED THAT:

Paragraph 1 of the Walton Report (filed as Exhibit #4) under the heading "Recommendations" shall be an addendum to the Report of J. C. Nicholls, P. Eng., dated November 8, 1991 on the McDonald Drain.

5. IT IS ORDERED THAT:

The covered reach of the McDonald Drain constructed pursuant to the Report of J.C. Nicholls, P. Eng., dated November 8, 1991 of the McDonald Drain shall be abandoned.

6. IT IS ORDERED THAT:

The Appellant, A. & K. McDonald shall pay the sum of $200. 00 towards the cost of excavating the open reach of the McDonald Drain.

7. IT IS ORDERED THAT:

50% of the balance of the costs to excavate the open reach of the McDonald Drain and the cost to construct a new covered drain as recommended by R. Walton, P. Eng., shall be paid by Spriet Associates Sudbury Ltd., and 50% of the costs shall be paid by the contractor who constructed the drainage works, Tom Cooper, Ron Cooper and Gary Cooper c.o.b. as Cooper Engineering and Construction.

8. IT IS ORDERED THAT:

All costs incurred by the Township of Carnarvon with respect to the hearing of this Appeal shall be paid by the Township of Carnarvon out of its general funds.

9. IT IS ORDERED THAT:

There be no other order as to costs and all parties are responsible for their own costs.

Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.

Dated: October 19, 1995

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

This Appeal, launched by the Appellant, A. & K. McDonald pursuant to s. 64 - owner of land dissatisfied with the quality of construction - of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act) was heard on September 13, 1995.

The proceeding was initiated by the Council of the Township of Carnarvon, in response to a Petition of the Appellant pursuant to s. 4 (1) (a) of the Act.

Prior to the commencement of the hearing, Mr. A. Kettle, P. Eng., General Manager of Spriet Associates Sudbury Ltd., (Spriet) as agent, stated that they would not be seeking an adjournment but proceed with the hearing if their preliminary motion to have the Notice of Appeal struck out is not granted.

Mr. A. Kettle then made a motion asking for an Order striking out the Notice of Appeal as being void because it was filed subsequent to the time limited by s. 64 of the Act. He noted that the Notice of Appeal was filed several months past the one year limited by s. 64 of the Act. He added that the Appellant has had sufficient time to test the covered drain and file his Appeal within the limitation period. There were indications that the drain was not functioning properly within the limitation period, and therefore, there is no excuse for such a long delay in filing the Appeal.

The evidence of the Appellant McDonald is, that he was not aware of the limitation period for appealing. He has had no experience with a Municipal drain. He is not familiar with the Act. He did not know how to proceed. He had complained about some items of the work immediately after construction. In the Fall of 1994, he had hired a drainage contractor to systematically tile his lands. When the contractor came out and checked the Drain, he found it full of water and not on grade. He was not prepared to proceed with the tiling until the Main Drain was functioning properly. It was then that he realized that the Drain was not properly constructed and he immediately complained to the Township, who in turn passed on the complaint to the Engineer.

The evidence discloses that the Certificate of Completion may be said to have been issued on November 22, 1993. In November 1994, Mr. Nicholls testified that he had received a telephone call either from the owner or the Township that the drain was not working. The Notice of Appeal was filed on July 11, 1995. Mr. McDonald must have indeed complained to the Township in the Fall of 1994 since Mr. Nicholls was notified that the Drain was not working in November 1994. On December 28, 1994, Mr. McDonald filed a formal complaint with the Township. On April 6, 1995, Council passed a Resolution formally informing the Engineer that the drain was not properly constructed and that it was not functioning properly. It was resolved that, "Spriet and Associates must tendered a written confirmation containing details of what they intend to do to correct the situation and make the drain operable and when they intend to do it". This was to be done within 30 days.

The alleged defect in the Drain is what may be termed a latent defect. That is, the nature or character of the defect cannot be determined by visual observation without exposing the covered Drain. It is true that there would be signs that things are not right such as, water standing in the catchbasins or no water coming out of the outlet pipe as water entered the Drain, these would be indica of problems; however, they would not disclose the nature of the defect. The nature of the defect could only be determined by exposing the Drain at several locations and examining the exposed Drain. That is exactly what happened here when the contractor, hired by Mr. McDonald to tile his lands, exposed the Drain. Further, Mr. McDonald did give notice to the Township in the Fall of 1994 and confirmed it in his letter of December 28, 1994, wherein he stated, "That there is some major problems with the Municipal Drain".

In our view, the time limited under s. 64 of the Act did not start to run until at the earliest in the Fall of 1994. The Notice of Appeal was filed July 11, 1995. In the circumstances the Notice of Appeal was filed within the period limited by s. 64. If in fact it is out of time, in the circumstances, we will grant the Appellant's motion extending the time for the filing of the Notice of Appeal to the date of the filing (July 11, 1995) and grant permission to file the Notice of Appeal.

The motion of Mr. Kettle, on behalf of Spriet and Associates Sudbury Ltd. to strike out the Notice of Appeal, is therefore dismissed.

The primary purpose of these drainage works was to provide an outlet for the area requiring drainage, comprising Pt. Lots 13, 14 and 15, Con. 7, with an area of approximately 28 ha. At that time, the area was marginally served by an existing ditch which outlets into Municipal Drain “A” across Lot 11, Con. 7. The 1991 Report recommended that the existing ditch be deepened and improved across Lots 11 and 12, Con. 7 and that a new covered drain housed in 400 mm (1611 to 200 mm (8") concrete tile be extended across Lot 13, Con. 7 to provide an adequate outlet for subsurface drainage in the affected area.

The Report was adopted by Council on December 19, 1991 by By-law #91-17. Tenders were called in the summer of 1992. Three tenders were received, ranging from a low of $31,568.48 to a high of $70,753.60. The lowest tender was submitted by Cooper Engineering and Construction (Cooper). Even the lowest tendered price exceeded 133 % of the Engineer's estimate of the contract price. The Engineer was instructed by Council to enter into negotiations with the lowest bidder (Cooper) to see if the tender could be reduced, so that it does not exceed the 133% of the estimate. The prospective contractor (Cooper) then revised his tender to $29,428.48 being less than 133% of the Engineer's estimate. The reduction primarily consisted of substituting corrugated perforated plastic tile for the concrete tile specified by the Engineer. The Engineer then recommended to Council to accept the lowest tender.

The contractor excavated the open drain in the Fall of 1992 to provide some relief for the lands of the Petitioner. He commenced the construction of the closed drain on January 7, 1993. The Engineer attended at the job site in February 1993. The contractor was installing the closed drain in the area of Sta. 650. The Engineer checked the elevation of the covered drain at that station and found it to be within 1 cm of the design grade. He also checked the outlet pipe and found it to be within reasonable tolerances. He walked along the open drain and saw that the water was flowing along it uniformly and therefore assumed, without taking any elevations, that the grade of the open drain was proper. There is no other evidence from the Engineer that he checked either the open drain or the closed drain during construction or as constructed other than that already mentioned.

The evidence of the Appellant is that in the Fall of 1994, the contractor he had hired to install the systematic subsurface drainage in his farm, checked the drain and found that he was unable to drain into it. At the locations he checked, the drain was too high and it was full of water and there was no flow from the outlet pipe. He therefore refused to install the subsurface drainage to outlet into the McDonald Drain. After the Appellant learned this, he immediately complained to the Township and either he or the Township brought it to the attention of the Engineer. This was in the Fall of 1994. The Appellant followed up his complaint in writing by a letter dated December 28, 1994. In that letter he stated, that he noted major problems with the Municipal Drain across his lot. "In the Fall, 'of this year' I had a contractor try to install systematic tiling on my property which required a tie into the drain. He was unable to do so because the Main Drain, in his opinion, was not working properly". The Appellant later contacted a contractor to expose the drain in several locations. He got a friend of his to take elevations on the Drain. The levels disclosed that lengths of the Drain were flat and that other lengths had sags in them. He asked Council to challenge Spriet Associates of Sudbury and Cooper on the quality of the construction work.

In his evidence, Mr. Nicholls stated that he attended at the site on several occasions. Subsequent to his visit on February 8, 1993, he issued a Payment Certificate assessing the progress as 70% completed. He visually inspected the work on May 12, 1993. He issued a Deficiency List on June 3, 1993 filed as Exhibit #11. He held back 3 % of the contract price - $875.00. A payment was made on September 19, 1993. At that time the Appellant complained of the catchbasin tops not being proper. On November 12, 1993, the Engineer visited the site to see whether or not the deficiencies had been remedied and whether the holdback paid to the contractor. On November 22, 1993, he issued the Certificate of Completion. His recollections are that in November, and it seems to him prior to the issuance of the Certificate of Completion, he received a call from the owner or the Municipality complaining of the quality of construction and the non-functioning of the Drain.

Since the matter was getting nowhere, Council of the Township, employed Mr. R. Walton, P. Eng., a Drainage Engineering of quite extensive experience, to review the whole matter and make recommendations to Council. Mr. Walton has prepared a Report, filed as Exhibit #4, dated June 26, 1995. The Report summarizes the preliminary investigations, the field work that Mr. Walton did, the elevations that he had taken, his conclusions and recommendations. He has included in his Report, as Appendix 3, a profile of the bottom of the open drain and the invert of the covered drain. He has concluded that the open Drain was not dug to the depth recommended in the Report. It appears to be 10” to 12” higher than the design grade, except at the downstream and upstream end where the deviation is within accepted tolerances. Although there is considerable silt deposit in the Drain, particularly at the downstream and upstream end, Mr. Walton was of the opinion that he was able to determine the profile of the open drain as dug by the hard bottom soil in the Drain. There is next to no sediment between Sta. 0 + 125 and Sta. 0 + 425. The grade over that reach is parallel to design grade, however, approximately 1011 to 12" higher. There is silt build up at the outlet pipe almost to the top of the outlet pipe.

He found that the covered drain, from the outlet pipe upstream to the first catchbasin at Sta. 0 + 800, is generally below grade an average of 4" except the length between Sta. 0 + 650 to 0 + 700 which is very close to the design grade. We may note here, that this conforms with the Engineer's evidence, that he was in the field at that time and took elevations on the section and he found them to be within 1 cm of the design grade. Upstream of Sta. 0+700 the invert of the drain is generally below design grade by an average of 6". Upstream of the catchbasin at Sta. 0 + 800, the drain dips down well below the grade line and between Sta. 0 + 850 and Sta. 0 + 900 the invert of the drain as constructed is in excess of 14" below the design grade. It then rises again before it reaches the upstream catchbasin at Sta. 1 +040. The Engineer found the water levels along the course of the covered drain to be well above the top of the drain.

Mr. Kettle has filed, as Exhibit #6, elevations taken by Spriet. Generally, the elevations taken by Spriet and those taken by Walton on the open drain are in reasonable agreement. The Spriet elevations show even greater fluctuations in the covered drain than the elevations of taken by Walton. The elevations do, however, show that the elevation of the covered drain at Sta. 6+50 is very close to grade. However, they show a substantial dip at Sta. 0+700.

Neither Mr. Walton, Mr. Kettle nor Mr. Nicholl offered a rational explanation for the undulating profile of the covered drain. They put forward several possibilities or factors that might cause a drain to deviate to that extent from the design grade. However, after considerable review and questioning, it seems that the only rational explanation for the undulating or fluctuating invert grade of the covered drain is that it was not installed on grade. This is the reason we accept; and we reject the other possibilities suggested either by the contractor that this drain had been pushed down by equipment crossing over it, or by the Engineer, Mr. Nicholl, that perhaps the drain had floated up; however in that case, it would be higher than the design grade rather than being generally lower, as it is.

In his evidence the contractor stated that during construction, they had encountered poor soil conditions upstream of the catchbasins at Sta. 0+800. When pressed for further particulars, he stated that he did not contact the Engineer when they encountered these conditions, they "merely installed the drain in the soil that was there without any bedding whatsoever".

We therefore find that the condition of the covered drain as it is now is basically the same as it was subsequent to construction. It does not conform, even allowing for reasonable tolerances, with the drain as designed and a drain that the assessed owners were entitled to. That being the case, it is necessary to determine where the responsibility for the defective drain is to be placed.

Certainly, if not most, but much of the responsibility must be placed on the shoulders of the contractor. By entering into the contract he had undertaken to do the work in accordance with the plans and specifications provided in the Report. Clearly, he did not do this. Consequently, in our view, the contractor should pay 50% of the costs of reconstructing the drain as proposed by R. Walton, P. Eng., in his report of June 26, 1995, filed as Exhibit #4.

What are the duties and responsibilities of the Engineer during construction? The most telling piece of evidence as to the Engineer's duty and responsibility during construction is the fee that he charged in the preparation of the Report under the heading, "Supervision and Final Inspection". Of the total engineering fee of $7,290.00, the Engineer has charged the sum of $2,000.00 for supervision and final inspection. It seems to us that this fee is sufficient to provide for more comprehensive supervision during construction.

The evidence, although not clear, seems to indicate that the Engineer attended at the site during the course of construction only once. He happened to be in the area. He did not have his level with him. He used the contractor's level to take the elevations that he took. He took no elevations on the drainage works after they were constructed. He knew the contractor was inexperienced in constructing covered drains using flexible plastic pipe. There is evidence that the contractor had laid storm sewer and sanitary sewer. However, he had no experience with covered agricultural drains. Added to this, there is the evidence of the contractor of the poor soil conditions, which were not reported to the Engineer. A timely visit to the site would have disclosed this condition and proper bedding would have been provided to stabilize the grade. We note that even though perforated plastic tile was substituted for the concrete tile recommended in the Report, the Report has not been amended to show the change nor have the drawings. The Report should have been amended to reflect the change, and the drawings revised to show the as-constructed drain.

We find that the Engineer failed to discharge the duties and responsibilities that devolve on the Engineer during the course of construction. For these reasons, we are of the view that Spriet Associates Sudbury Limited shall pay 50 % of the costs of constructing the drainage works proposed by Mr. Walton.

Furthermore, Spriet Associates Sudbury Limited shall not be paid any compensation by the Township for attending on the hearing of this Appeal.

Mr. Walton informed the Tribunal that the Township shall bear all of the expenses that it has incurred in the hearing of the Appeal, to be paid out of the Township's general funds.

There will be no other Order as to costs.

Dated: October 19, 1995.

Rene Montpellier, panel member

Vernon Spencer, Vice-Chairperson

Bernard J. Goodal, Chairperson