South Vance Drain (Re), 1996 ONAFRAAT 2

SOUTH VANCE DRAIN (RE) Township of Camden William Cryderman

SOUTH VANCE DRAIN (RE), 1996 ONAFRAAT 02

January 3, 1996

DATE OF DECISION:

January 15, 1996

1996 ONAFRAAT 02

An Appeal to the Ontario Drainage Tribunal by William Cryderman from the April 27, 1995 decision of the Court of Revision for the SOUTH VANCE 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. Donald 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 3, 1996. Ms. Shelley Wilkins, Clerk Administrator of the Township of Camden (the Township), acted as Clerk of the Tribunal.

Mr. William Cryderman appealed under Section 54(1) of the Drainage Act, R.S.O. 1990, Chapter D.17 (the Act), from the decision of the Court of Revision on the South Vance Drain. Section 54(1) states:

"54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal."

The Background

The South Vance Drain is an open channel with 1:1 sideslopes and a three-foot-wide bottom. It is located along the east side of the Brick Road (the road between concession 13 and 14, Gore of Camden). It outlets to the McBrien Drain in lot 4 and extends upstream for a distance of approximately 2700 feet to its head at approximately the centre of lot 3. The drain was last improved under an engineer's report dated September 1949. The open channel was cleaned out in 1993.

The proposed work is under Section 78 of the Act and consists of:

Installing 475 feet of eight inch tile beginning at an existing tile outlet near the lot line between the SW¼ and the NW¼ of lot 3 running northerly. The existing open ditch in this area is to be filled in leaving a surface swale.
The access culvert for the NW¼ of lot 3 concession 14 (W. Cryderman) is to be relocated.
The access culvert for the W½ lot 4 concession 14 (F. & E. Kramer) is to be enlarged from 24 inches in diameter to 30 inches and lengthened to 48 feet.

Each component of the work is separately assessed in the report. The three assessments are combined into one assessment schedule as follows:

Concession

Lot

Owner

Total Assessment

E½ 3

Cryderman Farms Ltd.

$322.00

E½ 4

Brookston Acres

$416.00

SW¼ 3

W. Cryderman

$2,158.00

NW¼ 3

W. Cryderman

$3,469.00

W½ 4

F. & E. Kramer

$1,464.00

Brick Road, Township of Camden

$2,435.00

Total Assessment

$10,264.00

The Issue

Since the appeal was brought under Section 54(1) of the Act, it appeared at the outset of the hearing that the issue before the Tribunal was whether or not the assessment against the land of the appellant, William Cryderman, is appropriate for the work being done. It soon became apparent, however, that the basic issue to be determined was whether or not the work that is proposed to be done adjacent to or on the land of the appellant should even be undertaken.

The Evidence and the Findings

Mr. Raymond Dobbin, P. Eng., told the Tribunal that he has been registered as an engineer since 1982 and has been the Township drainage engineer since 1987. He said that he was instructed by the Township on October 25, 1993 to prepare a report on the South Vance Drain pursuant to a request to replace the access culvert on the drain at the W ½ lot 4 concession 14 (Mr. Kramer). An on-site meeting was held December 6, 1993. According to Mr. Dobbin, Mr. Harry Riepma (owner of the Kramer property at that time); Mr. John Cryderman; Mr. Neil Marchand, Township Drainage Superintendent; Mr. John Leeson, Township Councilor and Mr. Richard Smith attended at the meeting. Mr. Dobbin's notes made when the meeting was finished indicate that Mr. Riepma (W½ lot 4 concession 14) requested that the farm access culvert be widened to accommodate the entry of farm equipment. He said that the existing culvert entrance was too narrow. Mr. Dobbin's notes indicate that Mr. John Cryderman told him he has a six-inch outlet across the road draining to the South Vance Drain, an area of his property that was originally (1949 report) assessed benefit by cut-off. The notes also indicate that Mr. Neil Marchand had cleaned the open channel in 1993 and that Mr. Marchand told Mr. Dobbin that Mr. William Cryderman was unable to attend at the meeting but was making two requests. The first request was that the upper end of the drain be filled in and the open ditch replaced by a tile from the head of the drain to the point where the low run in the field empties into the ditch. The second request was that the access culvert be moved from its present location to higher ground closer to the north boundary fence of the property. Mr. Dobbin said that he and Mr. Marchand met with Mr. William Cryderman on July 25, 1994 to discuss another drain. He told the Tribunal that at the meeting, he asked Mr. Cryderman whether he wanted the upper end of the South Vance Drain replaced with a tile and filled in and whether he wanted his bridge relocated onto higher ground. Mr. Dobbin told the Tribunal that Mr. Cryderman said he wanted this work done. As a result of his instructions from Council and the meetings with the affected ratepayers, Mr. Dobbin prepared and filed his November 9, 1994 report on the South Vance Drain.

Mr. Marchand did not touch the Riepma/Kramer culvert when he cleaned out the open channel in 1993 because he felt the culvert work was more than repair and required an engineer's report.

Mr. Dobbin told the Tribunal that, for the purposes of assessing the cost of the work, he divided the project into three components: the Kramer bridge replacement and extension, the William Cryderman bridge relocation and the filling and replacement of the top 475 feet of the existing channel with a tile drain and a swale.

Mr. Dobbin told the Tribunal that he provided a separate schedule for each component and assessed these components of the project as follows:

Kramer Culvert

The total cost is $3,862 including engineering and GST. This amount provided for putting in a new, larger, longer culvert with headwalls. $204 was estimated for the cost of materials for the extension only. Adding to this, the estimated cost of installation and engineering and GST came to a total cost of $457 for extending the culvert. This amount is assessed as a special benefit assessment to the Kramer property for the lengthening of the culvert entrance.

Mr. Dobbin then subtracted the special benefit from the total estimated cost and assessed 1/3 of the remainder as benefit to the Kramer property. This amounted to $1,007.

He then assessed Brookston Acres (Mr. Jack) $336 as a benefit by cut-off. Mr. Dobbin reasoned that this was about 1/3 of the benefit assessed to the Kramer property. The remainder of the cost was assessed to the upstream owners of the lands and road as an outlet assessment based on the acreage of the properties with the road assessed at twice the rate per acre. This amounted to an assessment of about $40.25 per acre for outlet assessment. He did not assess for outlet any of the approximately 25 acres of the Kramer lands lying upstream of the culvert.

Relocate the access culvert on NW ¼ lot 3, Mr. William Cryderman's Culvert

The total estimated cost of removing the existing culvert, moving it downstream and reinstalling the culvert with headwalls, including engineering and GST is $3,015. The estimated cost of removing the existing culvert and installing it in the new location, including engineering and GST is $1,046. Since this work is a benefit to only the William Cryderman property, $1,046 is assessed as a special benefit to that property. After deducting the $1,046 from the estimate of $3,015, Mr. Dobbin was left with the sum of $1,969 to assess. He assessed 1/3 of this ($656) to the William Cryderman property as a benefit assessment with the remaining $1,313 assessed to the upstream properties as outlet assessment. This resulted in an outlet assessment rate of about $99.47 per acre. Again, the road was charged at double the rate.

Fill in 475 feet of ditch and install 475 feet of eight-inch tile with a surface swale

The total estimated cost of this work is $3,387.

The existing channel is on the road allowance close to the edge of the road. Filling in the ditch will improve the safety and stability of the road. The estimated cost of filling in the open channel plus engineering and GST is $1,107 and this amount is assessed as a special benefit against the road. Mr. Dobbin said that he assessed the balance as:

One-third ($760) as a benefit assessment to NW ¼ lot 3 (Mr. William Cryderman) for having a direct outlet to a tile and no ditch to clean out.
One-third ($760) to Brick Road as a benefit assessment.
One-third ($760) as outlet on SW ¼ lot 3 ( Mr. William Cryderman) since the tile would pick up a tile drain coming from this part lot.

Mr. Dobbin told the Tribunal that Mr. Cryderman appealed to the Court of Revision saying that his costs were too high and suggesting that the costs be shared equally between those who petitioned for the work. The Court of Revision did not change the assessments and Mr. Cryderman appealed to the Tribunal.

Mr. Donald Good, solicitor for the appellant, told the Tribunal that Mr. William Cryderman was taking the position that he has not applied for the benefits which may be imposed upon him and that the Court of Revision has the power to consider that factor and eliminate that part of the assessment as laid out in the engineer's report. He said that the benefits laid out in the schedule are not benefits applied for and therefore these benefits should be deleted.

Mr. William Cryderman told the Tribunal that he had not instructed Mr. Marchand to ask that his access culvert be moved and the upper end of the drain filled in and replaced with a tile drain. He told the Tribunal that the July 25, 1994 meeting with Mr. Dobbin and Mr. Marchand was an unannounced meeting to discuss the Brick Road Drain. He said that at the end of the meeting they had a casual conversation about the South Vance Drain but he did not request any work on the drain. Mr. Cryderman said that he understood requests for work on the drain had to be in writing and he had not made a written request. Therefore, he should not be assessed for the work. Mr. Cryderman was adamant that he had not requested the work and that he was not in favour of the work proceeding as provided in the report.

Mr. Cryderman told the Tribunal that while he did not receive notice of the meeting to consider the engineer's report, he did receive a copy of the report at a later date. He said that he attended at the Court of Revision and had raised these same issues but was told that the Court of Revision had a narrow authority. Since the Court of Revision did not grant his request, he appealed to the Tribunal.

Mr. William Cryderman offered no evidence on the amount of his assessment other than his statement that he did not ask for the work and should not be required to pay for benefits he does not want.

The Tribunal examined the assessments made by Mr. Dobbin:

In the opinion of the Tribunal, water from the east (concession 14) cannot possibly cross the road onto the lands to the west (concession 13) because of the present ditch and the road. Replacing the Kramer culvert, even though it is being enlarged, will not provide increased cut-off to the lands in concession 13. In the opinion of the Tribunal, land in concession 13 should therefore not be assessed for benefit from cut-off in this report.

In the opinion of the Tribunal, the benefit that accrues to the W½ lot 4 concession 14 (Kramer) from the enlargement, extension and replacement of the access culvert is more properly a special benefit than an ordinary benefit under the Act. None of this cost should be assessed under the heading of benefit.

In the opinion of the Tribunal, the W ½ lot 4, concession 14 (Kramer) is underassessed for the proposed work on the culvert that will service it.

In the opinion of the Tribunal, the engineer did not assess a high enough percentage of the work on the Kramer culvert as a special benefit assessment to the adjoining property. In the opinion of the Tribunal, a more appropriate special benefit assessment for culvert replacement is generally 50% of the cost of the culvert work with the balance being assessed to the lands. and roads draining through the culvert as outlet liability.

The Tribunal notes that, for the outlet assessment for the Kramer culvert, Mr. Dobbin treated the NW 1/4 and the SW 1/4 of lot 3 concession 14 as two separate parcels but the W ½ of lot 4 concession 14 was treated as one. Mr. Dobbin explained that he had done so since the lot 3 properties had two roll numbers and showed as two properties in the 1949 report while the lot 4 property had only one roll number. The Tribunal notes that when assessing for outlet, Mr. Dobbin did not assess any outlet to lot 4 even though the culvert is located to the north side of the centre of the property and the south portion of the property has to drain through the culvert. In response to questions from the Tribunal, Mr. Dobbin agreed that had lot 4 been two properties he would have assessed the SW 1/4 an outlet assessment for the Kramer culvert work. The Tribunal finds that while Mr. Dobbin attempted to be consistent in his assessment methods, he failed to account for all of the water entering the drain upstream of the Kramer culvert when he calculated his outlet assessments. In the opinion of the Tribunal, all of the lands that use a drainage works, or part of it, should be assessed for the part each uses regardless of parcel boundaries.

The Tribunal examined the report of the engineer during the hearing. In discussions with the engineer, it was agreed that the report was not sufficiently specific in certain matters. Other items have come to the attention of the Tribunal as well. The Tribunal will, therefore, include at the end of the section "Decision and Reasons" a section headed "Practice Notes" in which it will set out a number of matters that either require correction in this report or which the engineer should consider in preparing future reports. Furthermore, there are several typographical errors in the assessment schedules. In the opinion of the Tribunal, the report should be referred back to the engineer for correction of the various items.

Having heard the evidence of Mr. Cryderman, it is apparent to the Tribunal that Mr. Cryderman is in fact appealing under Section 48 of the Act on the ground that the report should be modified by eliminating all of the proposed work except the work on the Kramer culvert. Therefore, the Tribunal directs a modification of the notice of hearing to include an appeal under Section 48 and extends the time for filing an appeal under Section 48 to the date that Mr. William Cryderman filed his appeal to the Tribunal (May 25, 1995).

The Tribunal heard evidence from other assessed ratepayers in the watershed of the South Vance Drain. Mr. John Cryderman of Cryderman Farms (E½ lot 3 concession 13) told the Tribunal that he thought the assessments contained in the report were fair. He also told the Tribunal that whether or not the William Cryderman culvert was moved and the top end of the drain filled in would not make any difference to his farm.

Mr. Ernie Kramer (W½ lot 4 concession 14) told the Tribunal that he requested his culvert be lengthened so he could get trucks into his field easier. He said that whether or not the William Cryderman culvert was moved and the top end of the drain filled in would not make any difference to his farm.

Mr. Murray Jack of Brookston Acres Ltd. (E½ lot 4 concession 13) told the Tribunal that he was concerned about the assessment for cut-off. He said that he thought that once the water was cut off, he should not have to pay for it again. He also told the Tribunal that whether or not the William Cryderman culvert was moved and the top end of the drain filled in would not make any difference to his farm.

The Tribunal is faced with a report proposing work that it now appears that none of the assessed ratepayers require. Since no one wants the William Cryderman culvert relocated or the upper end of the South Vance Drain backfilled and replaced with a tile and swale, the Tribunal directs that this proposed work be deleted from the engineer's report.

The Tribunal finds as a fact that Mr. William Cryderman either asked to have his culvert relocated and the upper end of the South Vance Drain backfilled and replaced by a tile drain or he ought to have known this work was being proposed and he should have told council he did not want the work done before the engineer filed the report that resulted in this hearing. The basis for this finding is that, in his evidence, Mr. William Cryderman admitted to a conversation with Mr. Dobbin on July 25, 1994 during which this work was discussed. Also, the October 18, 1994 Council minutes indicate that Mr. William Cryderman was present at the meeting and stated that "he had discussed with Neil Marchand his request to relocate the bridge and close the top portion of this drain". These same minutes indicate that the Council requested Mr. Cryderman to fax his requests for alterations to the South Vance Drain as soon as possible. Mr. William Cryderman told the Tribunal that he received a copy of the engineer's report. In the opinion of the Tribunal, if Mr. William Cryderman objected to the proposed work, he ought to have made his objections known to Council before the Court of Revision was held. He did not. Therefore, the Tribunal finds that Mr. William Cryderman created considerable confusion regarding the work to be done on the South Vance Drain and should carry most of the responsibility for this confusion.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made, the Tribunal decided to direct that the November 9, 1994 report on the South Vance Drain be referred back to the engineer with instructions to eliminate all work except the work on the Kramer culvert. The W½ lot 4 concession 14 is to be assessed 50% of the cost of the work as a special benefit assessment. The remainder of the cost of the culvert work is to be assessed as outlet liability to all the lands and road draining through it. The report is to be revised by Mr. Dobbin at no additional fee.

Mr. William Cryderman is assessed $1,500 in costs for this hearing. This sum to be paid forthwith to the municipality and credited to the account for the South Vance Drain. If the $1,500 is not paid by March 31, 1996, council is directed to add $750 to the taxes in arrears on SW 1/4 lot 3 concession 14 (William Cryderman) and $750 to the taxes in arrears on the NW 1/4 lot 3 concession 14 (William Cryderman).

The reasons for this decision are:

At this time, none of the assessed ratepayers require the relocation of the William Cryderman culvert or the filling in of the upper portion of the South Vance Drain and replacement with a tile drain combined with a surface swale, so it is not appropriate to proceed with this work.
The engineer agreed with the Tribunal that there are several areas in which the report is unclear. In the opinion of the Tribunal, these uncertainties should be corrected by the engineer at no cost to the drain. Since the report would have to be amended in any event, the cost of also deleting part of the work and amending the assessment schedule will be minimal.
In the opinion of the Tribunal, the current report under-assesses the Kramer property for the enlargement and lengthening of the culvert that services it.
Mr. William Cryderman played a major role in the confusion regarding the work to be done on the South Vance Drain. In the opinion of the Tribunal, he ought to pay most of the cost of this hearing.

Practice Notes

The Act requires the engineer's report to be based on metric units but imperial equivalents can be shown as well if this makes the report more easily understood.
It is helpful to show on the plan of the drainage area the same parcel identifiers, such as name and/or roll numbers, that were used in the schedule of assessment.
Note that while Section 30 of the Act provides for damages caused to lands and crops, these are for damages caused by the present work and not by future repairs. Further the damages are those caused by the disposal of material not those caused by excavating to obtain fill material. Compensation for this might be by way of Section 29.
Section 36 of the Act requires the engineer to show in his report the approximate number of hectares affected by the drainage works. This applies not only to lands and roads receiving improved drainage, but also, as well, to lands and roads receiving benefit by cut-off.
When an open portion of an existing drain under the Act is to be filled in completely there must be a statement that this portion of the drain is abandoned.
When an open portion of an existing drain under the Act is to be partially filled with a swale to remain, there must be a statement that the filled part is abandoned and the status of the remaining swale specified. If the swale is to be part of the drain, its dimensions, grades, etc. must be set out to establish the standard for future maintenance.
A working corridor must be specified to permit the operation of Section 63(1) of the Act.
Especially when there is more than one Assessment Schedule in a report, great care must be taken in the wording of the maintenance section of the report to avoid any possible confusion concerning the assessment of future maintenance and repair.
Once the engineer files his report, it can be amended before being adopted by Council, but to do this it must be referred back to the engineer. The amended report must be given a new date and should be marked "Amended" so that it cannot possibly be confused with earlier versions. Since all drawings must be dated the same as the report of which they are a part, if the report is given a new date and marked "Amended", the drawings should also be marked accordingly.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

The November 9, 1994 report on the South Vance Drain, Township of Camden be referred back to the engineer, Mr. Raymond Dobbin, for clarification and deletion of all work except the work on the Kramer culvert.
50% of the cost of the work on the Kramer culvert is to be assessed to W½ lot 4 concession 14 Camden (Mr. Kramer) as a special benefit assessment with the remainder to be assessed as outlet against all of the lands and roads eligible to be assessed for an outlet assessment, including that portion of the Kramer property that drains through this culvert, in the normal manner followed by the engineer.
The clarification and modifications of the report be completed by Mr. Dobbin for no additional fee.
Mr. William Cryderman is assessed $1,500 in costs for this hearing. This sum to be paid forthwith to the municipality and credited to the account for the South Vance Drain. If the $1,500 is not paid by March 31, 1996, the council is directed to add $750 to the taxes in arrears on SW 1/4 lot 3 concession 14 (William Cryderman) and $750 to the taxes in arrears on the NW 1/4 lot 3 concession 14 (William Cryderman).

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.