Brick Road Drain (Re), 1996 ONAFRAAT 1

BRICK ROAD DRAIN (RE) Township of Camden William Cryderman

BRICK ROAD DRAIN (RE), 1996 ONAFRAAT 01

Drainage Act

January 4, 1996

DATE OF DECISION:

January 15, 1996

1996 ONAFRAAT 01

An Appeal to the Ontario Drainage Tribunal by William Cryderman, under Section 64 of the Drainage Act, concerning the quality of construction of the BRICK ROAD DRAIN, TOWNSHIP OF CAMDEN.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice Chair; Mr. Herbert Todgham, Vice-Chair; Mr. Warren Jenner, Member.

Appearances:

Mr. William Cryderman, appellant, in person; Mr. D. Good, counsel to the appellant; Mr. J. Wickett, counsel to the respondent, the Corporation of the Township of Camden.

DECISION OF THE TRIBUNAL

This appeal was heard in the Township of Camden municipal offices on January 4, 1996. Ms. Shelley Wilkins, Clerk Administrator of the Township of Camden (the Township), acted as Clerk of the Tribunal.

Mr. William Cryderman appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act) concerning the quality of construction of the Brick Road Drain.

Section 64 of the Act states:

"Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1980, c. 126, s. 64."

The Background

The Brick Road Drain was constructed on a request by Mr. William Cryderman under Section 4 of the Act, pursuant to the report of Mr. Raymond Dobbin, P. Eng., dated July 30, 1993. There was an existing agreement drain consisting of an open channel along the east side of the Brick Road (Thirteenth Concession Road, Gore of Camden). The head of the drain was on the north side of the driveway in the southerly part of lot 3 concession 14. The drain coursed southerly for approximately 380 meters across the northerly part of lot 2 to its outlet to the Little Bear Creek Drain. It provides outlet for part lot 2 and the southerly part of lot 3 in concession 14 and the east side of the Brick Road. The drainage area consists of 3.06 hectares of farmland and 0.23 hectares of graveled road.

The work done under the July 30, 1993 report consisted of the installation of 338 meters of covered drain running southerly, on private property, east of and parallel with the existing open channel using 150 mm diameter polyethylene drainage tubing covered with filter sock.

The engineer's report says:

"The existing open channel shall be filled in and graded to conduct surface water to three ditch inlet catchbasins which shall be located to eliminate the need for driveway culverts. The covered drain will allow subsurface drainage from lands in concession 14 to be installed."

One existing subsurface drain was intercepted during construction and was connected to the new tile. The specification in the report provided for Hickenbottom inlets to be used as ditch inlet catchbasins.

The specification for filling the existing channel is as follows:

"The existing channel shall be backfilled using material from the east bank. The material shall be compacted using the tracks of the unit carrying out the backfill operation. The backfill shall be graded to a vee shape swale with 1:3 side slopes and a minimum depth of 300 mm. The backslope of the existing open channel shall be regraded to form the backslope of the proposed swale. The swale shall drain to the Hickenbottoms installed under this report or to the Little Bear Creek Drain."

The Issue

The issue before the Tribunal is whether or not the construction of the Brick Road Drain was satisfactory and in accordance with the engineer's report on the Brick Road Drain adopted bylaw number 19-1993 of the Township?

The Evidence and Findings

Mr. Raymond Dobbin, P. Eng., told the Tribunal that he prepared the July 30, 1993 report on the Brick Road Drain. According to Mr. Dobbin, the soil in the area is sandy. Before the construction of the Brick Road Drain, the existing agreement ditch was full of cattails and the culverts were full of sand. In particular, he noted that the culvert under Mr. William Cryderman' s driveway was almost completely full of sediment. There were two furrow ditches on either side of the driveway to the William Cryderman house. The agreement ditch was on the road allowance running parallel to the road and on the private land side there was a high bank. The area behind the bank sloped to a low depressed area south of William Cryderman's driveway, west of the house and some 30 to 40 meters or so east of the east limit of the road. This is the area requiring drainage on William Cryderman's property.

Mr. Dobbin told the Tribunal that the work was tendered and the successful contractor was Mr. Randy Phillips, a reputable tile drainage contractor. Mr. Dobbin said that he conducted a visual inspection of the drain on a Friday in June of 1994. At that time, the drain was completed to his satisfaction with the exception that the swale had not been seeded.

Mr. Neil Marchand, Drainage Superintendent for the Township, told the Tribunal that he was on the construction site two or three times a day during construction. The construction took about five days to complete. When complete, the Hickenbottom inlets have approximately three feet exposed above the bottom of the swale. The below ground portion was wrapped with filter cloth to prevent the entry of soil.

On the Friday evening that the work was almost completed, a rainstorm struck the area. While the accounts differed on the amount, the Tribunal concluded that between 5 and 10 inches of rain fell on the watershed of the Brick Road Drain. As a result of this rainfall, the area was flooded.

Mr. William Cryderman told the Tribunal that when he arrived home from work, the swale and low areas on his property were full of water. He said that he went to the swale and observed that the Hickenbottom inlets were completely covered with a filter material. He said that he loosened this material from the top of the inlet and pushed it down to the water level to allow the entry of the water. He then brought a shovel and dug the debris away from the inlets so the water could get away. According to Mr. Cryderman, he dug for about three hours removing sod, debris and other materials from the inlets. He said he dug first at the inlet on the south side of his lane. He then dug at the other two inlets but not for as long or as deep. He said that he thought he had exposed about three feet of the inlet on the south side of his lane when he stopped digging.

Mr. Dobbin told the Tribunal that he and Mr. Marchand met with Mr. William Cryderman on July 25, 1994. He said that they agreed to:

Regrade the swale south of the driveway for approximately 300 feet.
Reseed the swales after regrading.
Replace the stone around the three Hickenbottoms.
Place gabion stone rip rap at both sides of the William Cryderman lane.

Mr. Marchand said that he engaged a contractor to perform this repair work and that he was satisfied that the drain had been constructed to the specifications in the report.

Mr. Dobbin told the Tribunal that he conducted his final inspection of the work and then issued a completion certificate dated October 6, 1994.

Mr. William Cryderman entered into evidence several photos taken of the area around the drain and the low areas on both sides of his lane. These photos show water ponded in the swale and water ponded on the fields. Mr. Cryderman told the Tribunal that his property has been flooded on three occasions since the Brick Road Drain was constructed. He said the flooding lasts longer than before the drain was constructed. He told the Tribunal that he has not constructed any tile drains from the low areas in his fields to connect to the Brick Road Drain. He said he was not satisfied with the performance of the drain. He also said that the drain appeared to be constructed the way that it should be. In response to questions from the Tribunal, he said that he was completely satisfied with the drain when the work was completed and that he did not know if the problem is that the drain does not work or that the water is not getting to it. He told the Tribunal that he was not sure if the problem with the drain was one of design or construction.

The Tribunal acknowledges that Mr. William Cryderman is not satisfied with the operation of the Brick Road Drain. Mr. William Cryderman told the Tribunal that he had not viewed the tile outlet of the Brick Road Drain to see if water was running or not. Mr. Marchand told the Tribunal that he has observed the outlet and water does run from the tile. Mr. Marchand told the Tribunal that during the times of the flooding, the Little Bear Creek Drain was also in a flooded condition so the outlet of the Brick Road Drain was under water and could not be observed. The Tribunal believes there would be other opportunities to observe the operation of the drain outlet when it would be well above the level of water in the Little Bear Creek Drain.

The only other evidence provided to the Tribunal concerning the quality of the construction of the Brick Road Drain was the evidence of Mr. Dobbin and Mr. Marchand that the drain was constructed to their satisfaction. The Tribunal must therefore conclude that the drain was constructed according to the specifications in the report.

In the opinion of the Tribunal, there is an obligation on the part of the appellant to bring to the hearing evidence that the drain was not constructed to specifications. A general dissatisfaction with the way the drain is functioning is not sufficient.

In the opinion of the Tribunal, this appeal, as presented, was a frivolous appeal. The appellant made no effort to have the tile inspected by a knowledgeable party who could attest to the quality of the construction. The appellant did not outline his dissatisfaction with the drain in writing when requested by the Township. Either of these actions could have produced information that would have made this hearing unnecessary. As a consequence, in the opinion of the Tribunal, the appellant will have to bear a portion of the cost of the hearing.

In response to questions from the panel, Mr. Wickett could not provide a figure for the Township's cost in preparing for the hearing. Therefore, the Tribunal fixed the part of costs of this hearing to be charged to the appellant, Mr. William Cryderman, at $1,000.00.

Decision and Reasons

After careful consideration of the evidence presented and submissions made, the Tribunal decided to dismiss the appeal of William Cryderman against the quality of construction of the Brick Road Drain, Township of Camden. The reason for this decision is that Mr. William Cryderman provided no evidence that the drain was not constructed to the specifications contained in the report of July 30, 1993.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

The appeal of William Cryderman against the quality of construction of the Brick Road Drain, Camden Township be dismissed.
Mr. William Cryderman is to pay forthwith to the Township of Camden costs of $1000.00 to be applied by the Township towards the costs of this hearing. If these costs are not paid in full by March 31, 1996, the Township is instructed to add the unpaid portion to the taxes in arrears on SW¼ lot 3, concession 14, Mr. William Cryderman.
The costs of this hearing are not to be considered as cost eligible for a grant under the Drainage Act.

It is ordered that there be no other order as to costs and all parties are otherwise responsible for their own costs.

Attention is drawn to Section 73 of the Act.

Dated at Chatsworth, Ontario, this 15th day of January 1996.