ONTARIO DRAINAGE TRIBUNAL
APPEAL:
MILL CREEK MUNICIPAL DRAIN IMPROVEMENT (RE)
Township of Longueuil
Township of Caledonia
Kenneth Howes,
Lloyd Cross,
Barry Cross,
Klaus Mayr,
Philmar Farms Inc.
Hubert Sieve,
Gilberte and Jacques Lalonde,
James Lapensee,
Eric M. Howes,
Helen Kaufman,
Leonard H. Howes,
Sylvain Lepage,
James and Maureen Lewis,
Rodney Maclaren,
Macson Farms Ltd.,
Ronald Brannen,
Ian R. Wilson,
Wayne and Merle Howes,
Louise Mayer,
Daniel White and
Garfield Barton.
MILL CREEK MUNICIPAL DRAIN IMPROVEMENT (RE), 1996 ONAFRAAT 23
STATUTE:
Drainage Act
HEARING:
April 17, 1996
DATE OF DECISION:
December 3, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 23
MILL CREEK MUNICIPAL DRAIN IMPROVEMENT
TOWNSHIP OF LONGUEUIL
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal under Section 54 (1) of the Drainage Act concerning the MILL CREEK MUNICIPAL DRAIN IMPROVEMENT, TOWNSHIP OF LONGUEUIL from the January 4, 1996 decision of the Court of Revision by the following appellants: Kenneth Howes, Lloyd Cross, Barry Cross, Klaus Mayr, Philmar Farms Inc., Hubert Sieve, Gilberte and Jacques Lalonde, James Lapensee, Eric M. Howes, Helen Kaufman, Leonard H. Howes, Sylvain Lepage, James and Maureen Lewis, Rodney Maclaren, Macson Farms Ltd., Ronald Brannen, Ian R. Wilson, Wayne and Merle Howes, Louise Mayer, Daniel White and Garfield Barton.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Herb Todgham, Vice-Chair; Mr. Rene Montpellier, Member.
Appearances:
Mr. Steven Renner, counsel for several appellants;
Mr. David Shelley, counsel for the Township of Caledonia;
Mr. Michael Chambers, counsel to the respondent, the Township of Longueuil.
DECISION OF THE TRIBUNAL
This appeal was heard in the Town Hall of the Township of Longueuil at L'Original, Ontario on April 17, 1996. Mrs. Jeanne Charlebois, Clerk of the Township of Longueuil, performed the duties of the Clerk of the Tribunal. Several owners appealed to the Tribunal from the January 4, 1996 decision of the Court of Revision on the Mill Creek Municipal Drain Improvement.
The Background
The Cross Creek Drain in Caledonia Township crosses the township boundary into Longueuil Township and becomes the Mill Creek Drain. There is an area of approximately 120 acres in Longueuil Township that normally floods every other year. The complaint is that this area is flooding during the growing season and damaging the cash crops grown there. The Council of Longueuil Township appointed McNeely Engineering Consultants "to prepare a Preliminary Report on the Mill Creek Drain under Section 78 of the Drainage Act". In this report, it was recommended that aerial mapping be carried out, followed by an engineering study to "permit better identification of the causes of the flooding". This was done and both hydrologic and hydraulic analyses were performed. The engineer, Mr. Philip McNeely, prepared a second preliminary report, labelled "Interim Report", based on these studies, in which he concluded that the existing channel of the Mill Creek Drain cannot accommodate a one in two-year storm without flooding, and flooding will generally occur annually. He found that applying his usual design criteria for handling peak flow from a 10-year growing season storm would result in work having a total cost of $792,000 (including construction, allowances, engineering studies, etc.). At the meeting to consider that report, it was agreed that such a project was much too expensive but that some improvement should be proceeded with, and the engineer was instructed to prepare a report accordingly. The engineer then filed his final report dated September 27, 1995 providing for minor channel work and the enlargement of the capacity of five culverts, all at a total estimated cost of $172,000. This cost he assessed on the basis of 50% for outlet liability and 50% for benefit. Several ratepayers appealed the assessments in this report to the Court of Revision which upheld the assessments. Some ratepayers then appealed to the Tribunal. A hearing was scheduled for April 17, 1996.
After hearing evidence and receiving exhibits for most of a day, the Tribunal had serious reservations about the viability of the project as proposed in the report. It appeared to the Tribunal that significant information had been brought forward since the filing of the September 27, 1995 report and additional new information was provided at this hearing. The Tribunal asked Mr. McNeely if he was prepared to support the project as proposed. Mr. McNeely said that he no longer felt that the proposal was viable and that he did not think that the proposed project should proceed.
The Tribunal concluded that the project proposal must fail. The Tribunal indicated that full reasons for the decision would be issued. The Tribunal then invited the Townships of Longueuil, Caledonia and West Hawkesbury to submit in writing by July 26, 1996 a proposal for proceeding towards a solution to this problem. The Tribunal also decided that, if a procedure was not found by the municipalities by July 26, 1996, the Tribunal would receive written submissions. from any of the parties to the hearing on how to assess the costs of the hearing and the cost incurred to the date of the hearing.
The municipalities failed to find a proposal to advance the project. The Tribunal received submissions on costs from the three solicitors.
The Problem
After the April 17 Tribunal hearing, the municipalities attempted to find a solution to the drainage problems with the Mill Creek drain. It appears to the Tribunal that the municipalities would like to maintain the drain in accordance with the existing report, but would like to improve the capacity of some of the culverts. The maintenance work can be done by the municipalities under the 1974 report and by-law. The improvement to the culverts has to be the subject of an engineer's report to ensure that enlarging these culverts, without corresponding changes in the channel cross section, does not merely move the flooding from one property to another.
It is clearly demonstrated that the Mill Creek Drain is only a portion of the drainage system and should not be viewed in isolation from the total watershed area. It is also clear that the parties are divided on how to address the problems in the watershed. Each blames the other for the flooding problems that exist and the failure of the current proposed work to proceed. If the parties want to avoid costly and unproductive litigation, some method of addressing the problem must be found by the parties.
This is a multi-municipality drainage works in that the system extends over three municipalities and includes several drains each with its own authorizing by-law. The current work was initiated in respect of the portion of the system in the most downstream municipality. The solution eventually proposed would have brought a 15% relief to the affected lands at a total estimated cost of $172,000. The solution would not have prevented flooding on a yearly basis. The lands subject to annual flooding amount to about 120 acres from a 9,000-acre watershed. According to the evidence of some of the ratepayers, the engineer overestimated the extent of annual flooding. In that event, the per acre cost of the partial relief from flooding is even greater. However, the principle to be applied is that one owner or group of owners should not improve the drainage of their lands to the detriment of owners of lower land. Once water has been collected by artificial means and directed to flow down a channel, the responsibility is to take that water to a sufficient outlet. This project was intended to deal with both the reduction of flooding and the provision of a sufficient outlet.
In the present instance, the proposed remedy failed, at great expense to all the users of the drains and the municipalities. The Tribunal is not aware of any mechanism in the Act that will prevent a similar failure in the future.
Given the lack of cooperation in this case the system did not work. The engineer hired for the downstream portion had to look at the entire drainage system, but had no power to require work in the upstream municipalities. An engineer hired to work on the upstream portion of the system has to look at the entire system, but, unless work is done in the downstream municipality, the cost of this investigation cannot be charged to the downstream owners. Two engineers could be looking at the same system - perhaps at the same time - without either having full authority over the entire system. In theory, the engineer in either case has to tailor the remedies to the needs of all the lands along the entire system. In practice, this independence is hard to achieve given the localized starting point of view and the restrictions of the Act.
In the opinion of the Tribunal, in cases of a large, multi-municipality drain, it makes sense to have one administration for the entire drainage system when improvements are contemplated. Under the Act, the upstream municipality can extend into the downstream municipality to seek a proper outlet, but the downstream municipality cannot require work in the upstream municipality to mitigate flows.
While the municipalities are familiar with the Drainage Act and normally work under the provisions of that Act, the Tribunal feels there are instances where other legislation may provide a more appropriate mechanism to solve a problem. It appears to the Tribunal that the Municipal Act, Section 207, makes provisions for municipalities to enter into an agreement for the joint operation of a drainage system. A board of management is appointed to look after the repairs and also commission such reports and studies as become necessary.
In the opinion of the Tribunal, if the current drainage scheme continues to be operated as a system of separate municipal drains, the administration expenses will be greater than if it were operated as a single unit. As a single unit, there would be fairness in the distribution of costs where actual work is done on only a portion of the scheme. At the same time, a thorough investigation of the effects of the work on the remainder of the scheme would be evaluated prior to work being done with budget built into the work to evaluate the actual impacts three or four years after the work is complete. This would allow verification that a problem has not been transferred from one part of the watershed to another without the necessity of raising money in the future to pay for the post-construction evaluation.
In the case of a report on a problem in a downstream municipality, the Tribunal expects that all alternatives would be explored regardless of the location of the possible alternative solutions. If it turns out that there are cost-effective or less expensive alternatives in the upstream municipality, then the upstream municipality would be given the opportunity to evaluate these alternatives. If the upstream municipality refused to adopt such solutions, this refusal could be a factor in assessing out the costs of a purely downstream solution.
In view of the complete lack of cooperation amongst the parties, the Tribunal was given no alternative solutions to direct. However, the Tribunal hopes that, through the above comments and suggestions, the owners and the municipalities will come together and develop a method that is satisfactory to all concerned for resolving the present difficulties.
The Issue
The issue now before the Tribunal is the disposition of the costs related to the Mill Creek Municipal Drain Improvement project, including the costs of the engineer's report, interim financing, administration and the costs of the April 17, 1996 Tribunal hearing.
The Submissions and the Findings
Caledonia Township proposed that the cost of the engineering reports up to and including the Court of Revision be distributed pro rata to the by-law adopting the 1974 Stidwill report on Mill Creek. Caledonia requested that its legal and engineering costs incurred after the Court of Revision be charged to Longueuil since Longueuil failed to support both the engineer's report and the decision of the Court of Revision, and these were the reasons that Caledonia had to incur the extra costs.
The landowners who were represented by counsel at the hearing proposed that their costs be added to the cost of the drainage project to date, and then the total cost to date be ordered paid by the municipality or municipalities. They argued that the Act takes away from property owners, and gives to the Municipality most of the responsibility and the authority to deal with drainage problems. It failed to do this, and therefore, the municipality should pay.
Longueuil argued that the costs that it incurred were all incurred in good faith by Longueuil in compliance with the Act and should be charged to the drain. Longueuil proposed a charge according to the outlet assessment only against the lands upstream of Ritchance Road that were assessed in the 1974 report or on outlet only in the current report of McNeely.
In the opinion of the Tribunal, there is shared responsibility for the failure of this project. Longueuil properly points out that Mr. McNeely could have presented a "not practical" report under Section 40. Certainly, the information that Mr. McNeely used to arrive at the conclusion that the report was no longer viable was in his files all along. Longueuil and the flooded ratepayers in Longueuil persuaded McNeely to proceed beyond the interim report to provide some relief from flooding. While not stated, it appears that one reason for this is that the cost of the work would be spread out over a large number of owners and therefore the price each landowner would pay would hopefully be less than the benefit that landowner would receive. In doing this, both Longueuil and the benefiting landowners appear to have overlooked their responsibility to the upstream landowners who pay. Caledonia appears to take the position that it has made no contribution to the problem and therefore has little responsibility beyond that of maintaining the existing situation. In the opinion of the Tribunal, all of the parties that were in a position of influence adopted a narrow view of the problem and the proposed solution, and therefore, all bear some responsibility for the outcome.
In the opinion of the Tribunal, several pieces of work were done that provide information that can be used in the future to address the problems of the Mill Creek Drain, such as the aerial photography, the base mapping, the hydraulic and hydrologic modelling, etc. These costs should be paid by the ratepayers on the drain. Mr. McNeely approached the problem from a narrow viewpoint and missed reviewing information that, when he did review it, caused him to alter his position on the solution and the assessment of the cost of the solution. In addition, Mr. McNeely allowed himself to be persuaded to proceed with the final report even though he clearly had serious reservations about the effectiveness of the work. Mr. McNeely must bear the responsibility for the result of his actions and inactions, and therefore some of the cost. The Township of Longueuil and the benefiting ratepayers were advised all along the way by Mr. McNeely of the problems, the costs incurred and the effectiveness of the solution yet they proceeded to request a final report, therefore they must bear some of the cost.
The Tribunal could find little guidance in the submissions on cost to assist it in determining what part of the responsibility to assign to which party. Therefore, the Tribunal took the rather arbitrary decision of assigning $10,000 of the cost to the Township of Longueuil from general funds, and $15,000 of the cost to the engineering firm McNeely Engineering Consultants Limited. The remainder of the cost is to be charged pro rata on the assessments set out in the report on Mill Creek by L. P. Stidwill dated October 30, 1974, as confirmed or amended by competent authority, against the lands and roads in the watershed upstream of the Ritchance road. In this paragraph, "cost" means the cost of engineering and temporary financing related to the preparation of the engineer's report on the Mill Creek Drain dated September 27, 1995, as paid by the Township of Longueuil, including the engineering costs of the Court of Revision and the Tribunal hearing.
All other parties are responsible for their own costs. Longueuil will pay its own legal costs out of general funds.
Decision and Reasons
After consideration of the evidence submitted, the Tribunal decided that the project proposed in the report of McNeely Engineering Consultants Limited on the Mill Creek Municipal Drain Improvement dated September 27, 1995 be abandoned. Since there is no longer a project to be carried out, all appeals are dismissed.
The reason for this decision is the evidence presented at the hearing and the statement by Mr. McNeely that he no longer feels the project is viable.
ORDER OF THE TRIBUNAL
After consideration of the evidence submitted the Tribunal orders that:
The engineer's report on the Mill Creek Municipal Drain Improvement dated September 27, 1995 be abandoned.
All appeals are dismissed.
One copy of the information obtained by the engineer, and not already in the file of the Townships of Longueuil, Caledonia or West Hawkesbury, as a result of the work done in preparation of the report for the Mill Creek Municipal Drain dated September 27, 1995, is to be provided to the Township of Longueuil within 60 days of the decision. The cost of preparing this copy is to be paid by McNeely Engineering Consultants Limited. This material is to be made accessible to the Townships of Caledonia and West Hawkesbury by the Township of Longueuil.
$10,000 of the cost is charged to the Township of Longueuil to be paid from general funds. $15,000 of the cost is charged to the engineering firm McNeely Engineering Consultants Limited. The remainder of the cost is to be charged pro rata on the assessments set out in the report on Mill Creek by L. P. Stidwill dated October 30, 1974, as confirmed or amended by competent authority, against the lands and roads in the watershed upstream of the Ritchance road.
The Township of Longueuil is to pay its legal costs related to the project, including the legal costs for this hearing, from the general rate of the municipality.
The Township of Caledonia is to pay its costs for this hearing from the general rate of the municipality.
The other parties to the appeal are to pay their cost of the appeal.
The costs of the project that are assessed to the landowners are to be considered as eligible for grant under Section 85(a)(i) of the Drainage Act, regardless of the fact that the report was not adopted.
There is no other order as to costs of the hearing.
Dated at Chatsworth, Ontario, this 3rd day of December 1996.