Trudell Drain #2 (Re), 1996 ONAFRAAT 19

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

TRUDELL DRAIN #2 (RE)

Township of Aldborough

John and Joanne Vergeer

TRUDELL DRAIN #2 (RE), 1996 ONAFRAAT 19

STATUTE:

Drainage Act

HEARING:

October 7, 1996

DATE OF DECISION:

October 21, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 19

TRUDELL DRAIN #2

TOWNSHIP OF ALDBOROUGH

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal by John and Joanne Vergeer under Section 64 of the Drainage Act concerning the TRUDELL DRAIN #2, TOWNSHIP OF ALDBOROUGH.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Wright, Vice-Chair; Mr. Russell Piper, Member.

Appearances:

John and Joanne Vergeer, appellants in person.

Mr. Mike DeVos, P. Eng., on behalf of the respondent, the Corporation of the Township of Aldborough.

DECISION OF THE TRIBUNAL

This appeal was heard in the Township of Aldborough offices near Rodney, Ontario, on October 7, 1996. Joanne Groch, Clerk-Treasurer, Corporation of the Township of Aldborough, (the Township), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). Mr. John and Mrs. Joanne Vergeer appealed to the Tribunal under Section 64 of the Drainage Act (the Act) concerning the quality of the construction on the Trudell Drain No. 2, Township of Aldborough.

Section 64 of the Act is as follows:

"64. 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 Trudell Drain was originally constructed pursuant to a report submitted by H. H. Todgham, dated January 5, 1954 and consisted of 267 meters of 200 mm tile commencing on the west side of the road allowance between Lots 15 and 17 and extended easterly into the south half of Lot 17 and thence northerly into the north half of Lot 17 to its outlet in a private ditch. All of the lots are located in Concession 3 of the Township.

The owners of lands on which the existing Trudell Drain is located requested that the existing tile be replaced because it was in poor condition and not working. The owner of part of the north half of Lot 17, Concession 3, requested that the existing private open ditch that served as an outlet for the Trudell Drain be backfilled and a new tile continue beyond the old municipal tile and beside the backfilled ditch to an outlet further downstream. The Township appointed M. P. DeVos to prepare a report on this request.

The current work was done pursuant to a report titled Trudell Drain No. 2, dated March 2, 1995, signed by M. P. DeVos of Spriet and Associates. The work consisted of the construction of approximately 608 meters of 200 mm to 300 mm concrete-filled tile and storm sewer, including related appurtenances. The storm sewer is Boss "Poly-Tite" and runs from station 0+360 to station 0+220, past a pond adjacent to the line of the drain. A sealed storm sewer pipe was used in this location to prevent the pond from being drained. A catchbasin was installed at about station 0+250 to allow overflow from the pond into the drain.

The old open ditch was backfilled and a new tile constructed in native material alongside of the ditch. The outlet was protected by an outlet structure constructed of stone rip rap underlaid by a filter blanket. An approach apron of quarry stone rip rap 2 meters long and 3 meters wide also underlaid with a filter blanket was constructed to allow surface water to flow from the drain to the outlet ravine.

The work was carried out in the months of July and August 1995.

The working area specified in the report is shown on the plan as General Notes 2 and 3 and is as follows:

1. The working width available to the contractor to construct the drain shall consist of those lands immediately adjacent to the drain and connections and shall not exceed an average width of 15 meters.

2. All owners along the course of the drain shall make an access route from the nearest road to the drain location available to the contractor. The average width of this route shall not exceed 8 meters.

The Issue

Has the Trudell Drain No. 2 been constructed to the specifications contained in the engineer's report dated March 2, 1995?

The Evidence and the Findings

Mr. John Vergeer told the Tribunal that he has been on the property for the past 18 years. He said he has several concerns with the work, and he listed them as follows:

1. Damage to the pond embankment downstream of the drain construction.

2. Excessive engineering costs.

3. Billings are inconsistent and premature.

4. Erosion around the catchbasin at the pond at about station 0+250 and erosion into the pond.

5. The outlet structure was not constructed; there is no filter cloth or rip rap.

6. There is no provision for surface flow at the outlet.

7. There is erosion at the outlet for 6 to 8 meters into the field.

8. There are wet spots in the field that were not wet prior to the construction.

9. Dissatisfaction with the Township staff and how they handled the accounting and billing for the project.

The Tribunal explained that, while it noted Mr. Vergeer's concerns about the billings, accounting etcetera, the appeal was filed under quality of construction and that is all the Tribunal could deal with at this time.

Mr. Vergeer then explained his concerns with construction. His first complaint was erosion into his pond and around the catchbasin at Station 0+250. He said that there was surface water coming from the property of his neighbour to the south (Mr. Vanderloo) and eroding soil into the pond and washing an area around the catchbasin at station 0+250. Mr. Vergeer requested:

a) a hickenbottom inlet be constructed where the drain crosses the property boundary to control this surface water;

b) the pond be cleaned of sediments;

c) the erosion around the catchbasin be repaired.

Mr. Vergeer' s second complaint was concern about the possible collapse of the plastic sewer pipe by the pond. He said that when the contractor was on the site in July 1996, he backed his truck over the plastic tile line near the pond. Mr. Vergeer asked to have the pipe exposed to see if there was any damage to it, but the Township officials refused.

Mr. Vergeer's third complaint was that there is a wet spot in the field that was not there prior to construction. He was not sure what the cause of the wet spot was.

Mr. Vergeer' s fourth complaint was erosion of the embankment of an earth pond downstream of the outlet of the Trudell Drain No. 2. The drain outlets into a ravine. In the ravine, a distance downstream of the outlet, there is an earthen pond with a six-inch outflow pipe. Mr. Vergeer told the Tribunal that the drain now brings so much water that the earth dam is being washed, and he questioned whether it was appropriate for a twelve-inch tile to outlet into a pond with a six-inch outlet.

Mr. Vergeer's fifth complaint was removal, without compensation, from his property of a steel outlet pipe. He said that when the open drain was being constructed, the contractor removed a steel outlet pipe from one of his tile drains. He wants this pipe returned or a credit on his bill for the value of the pipe.

Mr. Vergeer' s sixth complaint is that the apron on the outlet structure was not constructed and the outlet structure was constructed improperly. He said there was no proper provision for surface water to flow into the ravine and that erosion had taken place into the field as a result of improper outlet construction. Mr. Vergeer was adamant that there was no filter cloth or rip rap in the location where the outlet apron was to be constructed.

Mr. Mike DeVos, P. Eng., told the Tribunal that he was the engineer appointed by the Township to prepare the report on the Trudell Drain No. 2. He said that he filed the report, Mr. John Poole, Drainage Superintendent for the Township, supervised the construction and that he (Mr. DeVos) conducted the final inspection. Mr. DeVos issued a completion certificate for the project under date of August 17, 1995.

Mr. John Poole told the Tribunal that he supervised the construction of the drain. Mr. Poole said that Mr. Vergeer had called him in the fall of 1995 concerned about the construction on the drain. They looked at the drain about November 1995 and noted that there were some areas of minor erosion and settlement of the backfill. He said that he seeded some of the eroding areas and then left more seed with Mr. Vergeer. Mr. Poole told the Tribunal that he thought it was too late in the season to undertake corrective work and that he intended to return in the spring to observe what had happened. Mr. Poole said he returned in March and walked the drain, noting deficiencies and then contacted the contractor. Because the spring was very wet, the contractor was not able to return to the site to do warranty work on the project until July. On July 2, 1995, the contractor returned to the site with a backhoe and a load of soil to begin repairs. Before the repairs could be completed, Mrs. Vergeer told the contractor to leave the site as quickly as he could and the contractor left.

With respect to Mr. Vergeer' s first complaint, Mr. Poole told the Tribunal that the source of the water causing the erosion is from the neighbouring property through an opening in the line fence made by Mr. Vergeer when he created an access route to haul soil that he was selling. This route was in existence when the drain was constructed, and the drain construction did not make this access any larger. The other source of water causing erosion into the pond is from Mr. Vergeer's lands itself. Mr. Poole noted some erosion around the catchbasin at station 0+250 and said that the contractor had agreed to correct this erosion as part of the warranty work on the drain. Mr. Poole told the Tribunal that although he did not feel the drain was the cause of the problem at the line fence, the contractor had agreed to construct a berm at the fence to recreate the effect of the old fence bottom and thus reduce the erosion.

The Tribunal is concerned about the solution to the problem at the fence line. The Tribunal agrees with Mr. Vergeer that a berm could result in a pond on the Vanderloo property. Therefore, the Tribunal finds that the solution to this problem is the construction of a berm to approximate the old fence bottom as well as a hickenbottom inlet into the tile at this location. Since the contractor has agreed to correct the erosion problem at the catch basin as warranty work, no further action is required to deal with this complaint.

With respect to the second complaint about the collapsed tile, Mr. DeVos showed the Tribunal photos of the tracks made by the contractor when he crossed the plastic tile in July, 1996. Mr. DeVos said that, in his professional opinion, the sewer tile would not be affected in strength or in capacity by the passing of the truck. Since no evidence of actual damage nor evidence to dispute the professional opinion of Mr. DeVos was provided, the Tribunal accepts the evidence of Mr. DeVos and concludes that damage to the plastic sewer pipe by the crossing of the truck in July 1996 is highly unlikely.

In response to Mr. Vergeer's third complaint, Mr. Poole told the Tribunal that the contractor installed the drain using an excavator and as a result there was little chance that a tile had been cut and not hooked into the new drain. Mr. Poole said that it was possible that a tile had been missed, and the contractor was prepared to investigate the wet spots on the field to see if a tile could be found. He said that if a tile was found, it would be connected to the drain as part of the warranty work.

Mr. DeVos responded to Mr. Vergeer' s fourth complaint of erosion on the earth embankment downstream of the outlet. Mr. DeVos said that at the time of the on-site meeting and survey, there was a beaver dam downstream of the earth embankment. This beaver dam held water back on the downstream side of the embankment. The beaver dam is now gone, and the water level has lowered, exposing more of the embankment to overflow water. Mr. DeVos pointed out that, in times of flood, the same amount of water would flow from the area as flowed before the drain was constructed and therefore, in his opinion, the work on the drain would not significantly affect the embankment.

The Tribunal notes that the embankment is downstream of the outlet of the drainage work and the quality of construction of the drainage work would not impact on the embankment and, therefore, this issue is irrelevant in this appeal. Therefore, the Tribunal made no findings on this issue.

Mr. Poole addressed Mr. Vergeer's fifth complaint concerning the removal of the steel outlet pipe. Mr. Poole said that this pipe was placed by the Township, as part of a work of maintenance of the drain and did not belong to Mr. Vergeer. Mr. Poole said that when the contractor removed the pipe with the excavator, the pipe was buckled and therefore was discarded.

The Tribunal agrees that the outlet pipe belonged to the drain and not Mr. Vergeer, and therefore, no compensation for the removal of the pipe is required.

Mr. Vergeer's sixth complaint was that the outlet apron was not constructed. Mr. DeVos told the Tribunal that when he conducted his final inspection, he did not note that the apron was missing, and therefore, he concluded that the apron was in place in August 1995 when he conducted the inspection. Mr. Poole told the Tribunal that he did not note that the apron was missing, and therefore, he concluded that the apron was there in August 1995. Mr. Chevalier, the contractor's foreman in charge of the work, told the Tribunal that he had constructed the apron in 1995. He said he put down a filter blanket and installed stone rip rap on top as required by the contract. All three agreed that the outlet structure had deteriorated as a result of consolidation of the backfill in the old ditch and required work. All three agreed that this work was a warranty item and would be done by the contractor at no additional charge to the project. This is the work that the contractor was doing in July 1996 when Mrs. Vergeer ordered him to leave the property. Mr. Vergeer was adamant that neither the filter blanket nor the rip rap was installed.

At the conclusion of the hearing, the Tribunal decided the best way to settle the issue of the installation of the apron was to conduct a field inspection and determine whether filter cloth could be found in the area where the apron was supposed to be installed. If no filter cloth could be found, then obviously Mr. Vergeer is correct in his assertions. When the Tribunal requested the parties to go to the site of the apron, with a shovel and see if they could find filter cloth, Mr. Vergeer changed his version of events and said a cloth would be found. He said that the cloth was put down by the contractor in July 1996, not in August 1995. Since the Township admitted that work was required on the outlet and was prepared to do that work but had been denied access by Mrs. Vergeer, the Tribunal concluded there was little use in going to the site for inspection. In the opinion of the Tribunal, it is important to note that the Township has been ready to complete the work on this drain since July 1996 but Mr. and Mrs. Vergeer refused to designate an access route to the drain, as they are required to in the by-law. Further, when the contractor gained access to the site by crossing the neighbour's property, Mrs. Vergeer ordered the contractor off the property even though he was working within the working space designated in the by-law.

In the opinion of the Tribunal, the issues in this hearing could have been resolved without the need of a hearing or the further involvement of the engineer. In the opinion of the Tribunal, the main reason why the resolution was not found lies with the appellant. The Tribunal is concerned that the other ratepayers on the drain should not pay costs for this appeal.

Decision and Reasons

After careful consideration of the evidence presented and submissions made, the Tribunal issued the following orders:

1. The Township is ordered to complete the construction of the drain by:

a) repairing the erosion control system and the erosion that has occurred at the outlet structure, and

b) repairing the eroded swale at the boundary between the Vergeer and the Vanderloo property, and

c) correcting the erosion at the catchbasin at the north side of the pond near station 255, in strict compliance with the specifications.

2. The appellant was adamant that some control be placed on the surface water flowing onto his property from the upstream owner. The appellant indicated a preference for a hickenbottom inlet in this location. The Tribunal directs the municipality to construct a berm and hickenbottom inlet to the drain at the property boundary between Vergeer and Vanderloo to assist in controlling the surface water passing this point. The cost of this work is to be charged to the maintenance account of the drain and collected by prorating over the entire assessment schedule, the next time maintenance charges are levied. The inlet is to be added to the specifications and become part of the drain.

3. Access must be provided by Mr. Vergeer through his property. At the hearing, Mr. Vergeer indicated he preferred access for this work to be made by travelling down his lane, past the buildings, to his back lanes, avoiding, as much as possible, travelling on the air strip. This is the access route the contractor is to take. The OPP is to assist the contractor in gaining access if required.

4. The Tribunal assesses the appellant $2,000.⁰⁰ in costs to partially offset the costs of this appeal. This $2,000.00 to be paid to the Township within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45-day period, the council is directed to add $2000.⁰⁰ to the taxes in arrears on Roll number 70- 025, part N½ Lot 17, Concession 3, Aldborough (J & J Vergeer). This $2,000.00 is not to be considered eligible for grants.

The reasons for this decision are:

1. In the opinion of the Tribunal, the Township stood ready to complete the work and was prevented from doing so by the appellants. Insofar as there are deficiencies in the work, the appellants are the main cause for these deficiencies remaining unresolved at this time.

2. In the opinion of the Tribunal, the ratepayers assessed for the drain should not have to pay a significant portion of the cost of the involvement of the engineer after August 1995 or of this hearing.

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 Section 73 of the Act.

Dated at Chatsworth, Ontario, this 21st day of October 1996.