ONTARIO DRAINAGE TRIBUNAL
APPEAL:
RUSCOM RIVER (RE) Township of Harwich Wm. & Helen E. Glassco
RUSCOM RIVER (RE), 1995 ONAFRAAT 04
STATUTE:
HEARING:
November 22, 1994
January 26, 1995
NEUTRAL CITATION:
1995 ONAFRAAT 04
ONTARIO DRAINAGE TRIBUNAL
IN THE MATTER OF
an Appeal of Donald Rushlow from the Report of E.P. Dries, P. Eng., dated March 15, 1994, on the Ruscom River, in the Township of Rochester, in the County of Essex
DECISION
This Appeal came before the Ontario Drainage Tribunal on November 22, 1994, at the Township of Rochester Council Chambers, 958 Highway #2, St. Joachim, Ontario.
All assessed owners 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, E.P. Dries, P. Eng., who prepared and presented the Report dated March 15, 1994; the Appellant, Donald Rushlow and other assessed owners.
The Clerk of the Township of Rochester, Annette Drouillard, acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
IT IS ORDERED THAT the Appeal of the Appellant Donald ·Rushlow be dismissed.
IT IS ORDERED THAT all references in the Report dated March 15, 1994 to the cast-in-place concrete farm bridge to serve Pt. Lot 17 and 18, Concession 6, Roll #11-028, be deleted from the Report and that the said crossing be constructed as a precast concrete box low flow crossing as redesigned by the Engineer at an agreed upon cost of $38,000.00.
IT IS ORDERED THAT there be no 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: January 26, 1995
Bernard J. Goodal, Chairperson
Ontario Drainage Tribunal
REASONS FOR DECISION
This Appeal was launched by the Appellant, Donald Rushlow, pursuant to s.54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act), was heard on November 22, 1994.
The proceeding was initiated 11 years ago (December 20, 1983), in response to a request of Russell Knister, for the repair and improvement of the Ruscom River. The Council of the Township of Rochester appointed an Engineer to prepare a Report pursuant to s.78 of the Act.
The original Report is dated July 21, 1987. It was adopted by the Council of the Township of Rochester on September 22, 1987. There were numerous appeals to the Court of Revision and subsequently appeals to the Ontario Drainage Tribunal pursuant to s.48 and s.54 of the Act.
The first hearing of the Ontario Drainage Tribunal was held on October 7, 26 and 27, 1988. The Tribunal ordered extensive reduction in the extent of the work, enumerated in the Order of the Tribunal dated December 8, 1988. The appeals with respect to assessment under s.54 (1) of the Act were not proceeded with because of the extensive reduction in the extent of the work and the required consequent adjustments to the assessments levied against the lands in the watershed.
The Decision and Reasons for Decision are reported in the Ontario Drainage Tribunal Consolidated Decision and Reasons for Decision for 1989 at page 2894.
The Engineer prepared an Addendum to the Report modifying the proposed work, he felt, in compliance with the Order of the Ontario Drainage Tribunal. After adoption of the Addendum, further appeals to the Ontario Drainage Tribunal were filed alleging that the modifications did not implement the modifications as ordered by the Tribunal. A second hearing was held on July 26, 1989. The Tribunal was of the opinion that the modifications prepared by the Drainage Engineer did not accurately reflect the changes to the Report intended by the Tribunal. The Tribunal rendered a Decision further particularizing the modifications that it directed to be made in its Decision of December 8, 1988 and other additional significant changes in the work to be done.
A hearing was held on July 27, 1989, with respect to the assessment levied against the lands in the watershed of the 223 appeals that were filed, only six were proceeded with because the downstream work was eliminated.
The Decision and Reasons for Decision of the July 26 and 17, 1989 hearings are reported in the Ontario Drainage Tribunal Consolidated Decision and Reasons for Decision 1990 at page 3284.
The apparent lull in the proceedings over the next four years is merely a manifestation of the more discreet nature of the activity during that period. The Engineer expressed concerns regarding the significant changes in the extent of the work made by the Ontario Drainage Tribunal. The works recommended in the original Report were designed to have the capability to effectively contain the runoff from the watershed resulting from rainfall event having a frequency occurrence of 1 in 2 years. The channel improvements from Highway #2 to Lake St. Clair were designed to accommodate the increased peak runoff events from the upstream drainage improvements, with no increase in water surface profile. The modifications to the design ordered by the Ontario Drainage Tribunal and the Ministry of Natural Resources produced a design which does not meet this design criteria. The proposed work on the channel will produce a consistent channel bottom gradient in those portions of the drain in which excavation is permitted. However, significant inconsistencies in cross-section, and hence carrying capacity, will still exist throughout much of the length of the channel as a result of the ordered modifications. Having expressed these concerns to the Council of the Township, the Council sought legal advice in interpreting the Orders of the Ontario Drainage Tribunal and how to carry on the proceedings. Council again instructed the Engineer to prepare a revised Report as required by the Orders of the Ontario Drainage Tribunal. A revised Report was filed on June 17, 1991.
In the meantime, a group of assessed owners made an Application to the Ministry of the Environment· for a full environmental assessment. The Ministry of the Environment reviewed the proposed drainage works, fully investigated any environmental impact, and concluded that a fu11 environmental assessment was not required. Following the review of the works by the Ministry of the Environment, the Ministry of Natural Resources, wearing their hat as agents of the Federal Government under the Fisheries Act and the Essex Regional Conservation Authority, reviewed the project and proposed modifications to ensure the integrity and the continued preservation and enhancement of the fish habitat.
The Engineer accompanied by representatives of MNR and ERCA toured the entire on January 22, 1993. Further modifications were proposed to reduce environmental impact and improve fish
Council then instructed the Engineer to prepare the final Report. The final Report dated March 15, 1994 and filed as Exhibit #2 was adopted by Council.
Again there were a large number of appeals to the Court of Revision. The Court made few modifications in the assessments. The· Appellant, who has been a party to all of the appeals in this proceeding, also appealed to the Court of Revision. The Court of Revision dismissed his appeal.
He now appeals to the Ontario Drainage Tribunal.
The gist of the Appellant's submission before us is best expressed in his own words in the preamble to his Notice of Appeal, which reads as follows:
"Three thousand eight hundred and fifteen dollars. This is the amount of my assessment so boldly called 'Benefit'. It is more like a contribution to drain a designated flood plain so someone may plant their crops right up to the river’s edge and not encounter any crop damage. ... If a farmer chooses to work the areas located in flood plains, then it should be his responsibility to deal with the consequences and not the taxpayers of surrounding Municipalities."
In his oral evidence before us, the Appellant primarily reiterated and expanded on the contents of his Notice of Appeal. He said that it is outrageous for an upstream owner to pay for private crossings across the Ruscom River. "The logic that 'your water passes through their property necessitating them to require a crossing' lacks· any common sense. The upstream landowners didn't dig or locate the Ruscom River. Anyone who purchases property which is split by a water course knows beforehand that a crossing will be required if they choose to get to the opposite bank.
These proposed crossings are not open to the public or even to the assessed landowners who are jointly paying for half of it. These are private crossings and should be financed solely by the landowners requesting them".
He then goes on to criticize the misuse of the Drainage Act. He says, "If the Ruscom River project is an example of how the Drainage Act was really intended to function, then some serious revamping of this Act is essential in the very near future to prohibit an eleven year long burden, such as this, from ever occurring again".
He concludes, "As a result of the two Tribunal hearings, the project was scaled down by approximately 50%. The original work of 9.5 metre bottom, 2:1 slope of the banks, straightening and widening through ·my property has been eliminated except for river bottom excavating to keep the grade. With all the work in this area and downstream having been downgraded, I feel the assessment should follow proportionately".
The Appellant is the owner of the N Pt Lot 18, Con. 6, Roll #08-042 immediately south of Highway #401. The lands have been assessed the sum of $3,815.00 for benefit and $169.00 for outlet liability for a total assessment of $3,984.00 for an affected area of 12.85 ha (31.76 ac). The Appellant professes that he is not opposed to farmers earning a living, but he should not have to pay to drain flood plains. The owners who plant them take the risk. They know the lands and· therefore if they are wanting to take the risk that is up to them.
The method of assessment and the equity of it has been ruled on by the Tribunal at the previous hearing. The Engineer in calculating the assessments in this revised Report used the same method as he had used previously. We can find no error in the arithmetic and since the same principles were applied to the Appellant's lands as to the lands of all other assessed owners, there is no merit in the Appellant's appeal, and it will therefore be dismissed.
Without extensive analysis or profound insight, it is quite clear why the assessment levied against the Appellant's lands is the same now as when the project was first conceived on the much grander scale. Originally, 15,600 m of channel were to be worked on draining a watershed of 46,000 ac with in excess of 1,800 assessed owners at an estimated cost of $1,156,00000.
As the project proceeding went through the appeal process, the project was scaled down to what, on the basis of the evidence, the previous Ontario Drainage Tribunal felt was sufficient work to relieve the original problem. The proposed drainage work is now about 50% of its original size. The costs of construction are now $366,100.00 with the administrative and engineering and other costs of $381,000.00 for a total cost of $747,100.00. Even though the total cost has decreased by over $400,000.00 the assessments levied against the lands in the final Report are the same as the assessment levied against those lands in the first Report. There are two reasons why this is so. First, the reduction in the total cost of the work was realized by eliminating almost all of the work downstream of the Sixth Concession Road. Eliminating that work substantially reduced the number of assessed owners to bear the burden of the costs of the remaining work. Second, the administrative and engineering and other costs have greatly increased. The combination of these two factors has resulted in the assessments remaining about the same.
No one but the Appellant has suggested that the purpose of this work is to relieve the flooding on the flood plains so that owners may plant their crops right up to the river's· edge and not encounter any crop damage. The Engineer had stated in his Report, and the Tribunal in the previous hearings has endorsed the statement, that the primary purpose of the drainage works was, and continues to be, to provide an outlet for the numerous tributary drains to the Ruscom River and to alleviate the f loading of the abutting lands. The benefits accruing to the lands is an increase in property values, because the flooding will be reduced, the enhanced appearance and the lessened future maintenance costs.
The Appellant's reasoning in support of the submission, that the upstream owners should not be assessed for the private farm crossings being provided for the two assessed owners, has a rather attractive ring to it. As he understands it, the reason that the upstream owners are being assessed for the downstream farm crossings is that their waters pass through them. This, he argues, lacks any common sense. The upstream owners did not dig the Ruscom River. Anyone who purchased lands which are severed by the course of the River, clearly realized that at the time he made the purchase and consequently was aware that he would have to get to the opposite bank. These crossings are not open to the public nor do the assessed owners who half a pay of it.
The issue, whether or not the upstream owners should be assessed for the downstream farm crossings, is no longer open for review at this hearing. It has been foreclosed in the previous Tribunal hearings. Although we do not have the transcripts of the hearings, it is quite clear from the Decision and from the Reasons that the issue was argued and the Tribunal made its decision on the basis of the evidence and arguments before it. We do, however, wish to correct the basic misconception that the Appellant has made. The upstream owners are assessed for the downstream farm crossing not because their waters pass through them, but because there are crossings there now which will be destroyed during the course of construction and which must be replaced. At the same time, they must be made larger to accommodate the increased flow in the river because of the more concentrated artificial drainage upstream and to meet the current requirements of Municipal Drains. In the circumstances, the upstream owners are properly assessed under the Act.
The Appellant also complained, that there is now less work being done over his lands than in the initial Report. The Engineer confirmed that the work being done on his lands is the same as proposed in the initial Report. This is further substantiated by the Order of the Ontario Drainage Tribunal where it directed that "the portion of the drain lying south of Highway #401 shall be completed as designed in the original Report".
The Appellant’s criticism of the Drainage Act is equally without merit. The Ruscom River project is not a typical example of how the Drainage Act works or is intended to work. The Drainage Act is not without its shortcomings. As with all other Statutes, review and updating of the legislation should be a continuous process. However, overall, it functions very well. It is like all remedial Acts, where in certain circumstances, particularly where the parties take issue with the remedy at every stage provided by the legislation, the proceeding tends to get bogged down and expensive. This, however, cannot be avoided if the assessed owners are to be given a reasonable opportunity to participate in the proceedings and to have a say in the final form of the work to be done and the monies to be expended. In this particular case, a large number of owners took issue with the whole project from the beginning. The proceeding went through a number of assessments, reviews, studies and appeals. Ministries, agencies, and other interest groups, besides the parties, were involved. That takes time, and it costs money. Yet, regardless of the form of the Statute, there is inevitably a price that must be paid if the principles of democracy are incorporated into the legislation. Although many have criticized the Act and said that it should go down the drain, very few constructive suggestions have been received to supplement or replace the current legislation.
We have been informed by the Engineer that the high-level crossing proposed for one of the farm crossings has to be redesigned. Tenders have been called and the cost of constructing the cast-in-place concrete bridge proposed for the farm crossing has come in at in excess of $80,000.00, whereas the estimated cost was $35,000.00. The owner has indicated that he is not prepared to pay $40,000.00 (50% of the total cost assessed to him as a Special Benefit) for the crossing.
The existing crossing at the site consists of a small diameter corrugated steel pipe "low flow" crossing. The Engineer has redesigned the crossing as a new low flow crossing consisting of twin 2,400 mm span x 1,800 mm rise precast concrete box culverts. The new crossing, like the existing crossing, would be subject to periodic flooding. However, the nature of the box culverts is such that periodic flooding will have no negative impact on the crossing. The price of this crossing has been confirmed by the contractor at $38,000.00.
Council and the property owner, Mr. Moison, agreed to accept the low-flow option. The contract documents with the contractor are to be modified to exclude the cast-in-place concrete bridge and include the precast concrete box option at a price of $38,000.00. Council asks for an Order to delete all references in the Report to the cast-in-place concrete farm bridge to serve Pt Lot 17 and 18, Con. 6. They ask that the Order direct the construction of the precast concrete box low-flow crossing at an agreed-upon price of $38,000.00.
An Order will therefore go amending the Report as proposed by the Engineer to construct a low-flow crossing rather than a high-level crossing to serve the farm lands of Maison, Roll #11-028, being Pt. Lot 17 and 18, Con. 6, Township of Rochester and deleting all references in the Report to the cast-in-place concrete farm bridge.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: January 26, 1995.
ONTARIO DRAINAGE TRIBUNAL
Warren Jenner, panel member
Judy Clark, panel member
Bernard J. Goodal, chairperson