ONTARIO DRAINAGE TRIBUNAL
APPEAL:
MILL CREEK MUNICIPAL DRAIN (RE) Township of Longueuil McNeely Engineering Consultants Limited.
MILL CREEK MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 24
STATUTE:
Drainage Act
HEARING:
October 22, 1996
December 3, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 24
MILL CREEK MUNICIPAL DRAIN TOWNSHIP OF LONGUEUIL
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal by the Corporation of the Township of Longueuil from the account of the engineer for the MILL CREEK MUNICIPAL DRAIN, TOWNSHIP OF LONGUEUIL.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Herbert Todgham, Vice-Chair.
Appearances:
Mr. Michael A. Chambers, counsel to the applicant the Township of Longueuil. Mr. P. Donald Rasmussen, counsel to the respondent McNeely Engineering Consultants Limited.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers for the Township of Longueuil (Longueuil) L'Original, Ontario on October 22, 1996. Mrs. Jeanne Charlebois, Clerk Treasurer of Longueuil performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). Longueuil applied to the Tribunal under Section 72 of the Drainage Act (the Act) to review the account of McNeely Engineering Consultants Limited (McNeely) for the Mill Creek Municipal Drain.
Section 72 of the Act is as follows:
72(1) The council of the local municipality, within, forty days after the engineer's account is presented to the clerk of the municipality, may, on notice to the engineer, apply to the Tribunal, which shall review the account and make any alteration it considers just.
72(2) Where the account as confirmed or altered by the Tribunal exceeds $1,000, either party may, on notice to the other party, appeal the decision of the Tribunal to the referee, whose decision is final.
- (3) In any application made under subsection (1), it shall not be necessary to notify all persons assessed for the drainage works. R.S.O. 1980, c. 126, s. 72.
The Background
The Cross Creek Drain in Caledonia Township crosses the township boundary into Longueuil and becomes the Mill Creek Drain. There is an area in Longueuil that floods. The Council of Longueuil appointed McNeely "to prepare a Preliminary Report on the Mill Creek Drain under Section 78 of the Drainage Act". In this report, McNeely 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 in charge of the project for McNeely, 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 could not accommodate a one in two-year storm without flooding and that 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. Several ratepayers appealed the assessments in this report to the Court of Revision which was held on January 4, 1996. Minutes of the Court of Revision show that Mr. McNeely suggested a change in the assessments, but the Court of Revision did not accept this and confirmed the assessment in the report. Several owners then appealed to the Tribunal. During the Tribunal hearing on April 17, 1996 Mr. McNeely advised the Tribunal that he no longer felt the project should proceed. The Tribunal adjourned the hearing and issued a decision providing an opportunity to the parties to develop a proposal to address the problems. Subsequently, Longueuil filed an application with the Tribunal requesting a review of the engineering fees for the work done by McNeely.
The Issue
The issue before the Tribunal is whether or not the engineering fees for the work performed by McNeely on the reports for the Mill Creek Drain, Longueuil, are justified.
The Evidence and the Findings
As a preliminary matter, Mr. Rasmussen, counsel for McNeely, raised the issue of the jurisdiction of the Tribunal to conduct the hearing since the application to have the account reviewed was filed after the expiry of the 40 day period for making application under Section 72(1).
Mr. Chambers argued that Longueuil had notified McNeely that it was asking the Tribunal to extend the time for filing the application and no prejudice would result to McNeely if the Tribunal extended the time under the authority of Section 100 of the Act.
Section 100 of the Act states:
100 The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1980, c126, s.100.
The Tribunal notes that the invoices from McNeely span a time frame from 1995 through 1996 and in fact, .the account for attendance at the Tribunal hearing on April 17, 1996 has yet to be rendered by McNeely. In the opinion of the Tribunal, when the engineer files interim billings, the forty day time period should not start until the final billing has been issued to the municipality. Under the circumstances, the Tribunal is prepared to extend the time for filing the application to review the engineers account and so orders.
Mr. Chambers, counsel to Longueuil told the Tribunal that Longueuil filed the application to review the engineer's account because of the turnaround made by Mr. McNeely at the Tribunal hearing on the appeals from the Court of Revision. At the hearing, for the first time, Mr. McNeely advised that the project was impractical and not economically viable. This was a surprise to Longueuil and came after considerable money had been spent for engineering services. Mr. Chambers said that Longueuil is of the opinion that Mr. McNeely should have been in a position to advise at an earlier stage in the proceedings, under Section 40 of the Act, that the work was impractical and no further work should have been done. He said that considerable expense was incurred after this point should have been reached and Longueuil should not have.to pay for this unnecessary work.
Mr. Chambers said that Longueuil's second concern was that Mr. McNeely did not support his own assessments as set forth in the report. He said that subsequent to the delivery of the final report and prior to the Court of Revision, Mr. McNeely came upon some documents in his files that led him to take the position that his assessment schedules in the report ought not to be the assessment schedules for the project.· This caused extra work and Longueuil then had the circumstance of going to the Tribunal on appeal from the Court of Revision with the engineer not supporting the assessment schedule in the report. The Court of Revision had confirmed the original assessment schedule and Longueuil had to defend that decision at the Tribunal with Mr. McNeely promoting a variation of the decision.
Mr. Chambers summed up the position of Longueuil saying that Mr. McNeely ought to have acted as he is obligated to do under Section 40 and advised that the matter was impractical early in the process and that the Tribunal should find that McNeely is not entitled to any payment for services after that point in time. In response to questions from the Tribunal Mr. Chambers said that Longueuil was not saying that the work was done poorly or inefficiently just that at some point in time McNeely should have reported under Section 40 and is entitled to be paid for services rendered to that point in time only and not beyond that point. Mr. Chambers said McNeely is not entitled to be paid for work done after the meeting of August 8, 1995. That is, McNeely should be paid up to and including Invoice 19626 (at Tab 2 Exhibit 2) which would put the account at $48,403.46 including G.S.T.
Mr. Phil McNeely spoke to the Tribunal on behalf of McNeely. Mr. McNeely provided the Tribunal with the following information.
In the fall of 1994, McNeely was appointed by Longueuil to prepare a report under Section 78 on the Mill Creek Drain.
He was the engineer in charge of the project for McNeely.
A site meeting was held with the owners and representatives from Longueuil council. At the site meeting the owners complained of flooding on an area of about 800 acres.
After the site meeting a preliminary report was prepared and filed with Longueuil under date of November 10, 1994. This report listed six projects in the upstream area that had been constructed in the early 1970's as well as the Cross Creek Drain in 1982 that would have an impact on the flows in the Mill Creek Drain. At that time, Mr. McNeely reported that a project of about $220,000 appeared to be required to address the problems of which $52,000 was needed to study the situation and prepare a final report. The project envisioned improvements to five crossings and improving the capacity of 8400 lineal feet of channel.
The preliminary report was discussed with the council of Longueuil and the owners and McNeely proceeded with the studies.
Under date of August 3, 1995 McNeely filed an Interim Report with Longueuil. At this point it was clear to Mr. McNeely that improvements to Mill Creek upstream of Ritchance Road so that it could carry the 1 in 10 year summer storm within channel 9 out of every 10 years would require enlargement of Mill Creek downstream of Ritchance Road at a cost of about $800,000. This report referenced Section 40 of the Act which provides for the situation where the engineer finds that a drainage works is impractical and suggested a meeting be convened with the council of Longueuil and the owners to obtain their comments and suggestions.
A meeting with Council was held. Then a meeting with Council and the owners was held on August 8, 1995. At these meetings the alternatives studied were discussed and a project consisting of improvements to five bridges and minor channel work upstream of Ritchance Road at a cost of about $120,000 was discussed. Mr. McNeely said that, in his opinion, this project was borderline, but he was convinced by the owners at the meeting that this proposal was practical and he was instructed to prepare a report.
A final report was prepared and filed with council under date of September 27, 1995.
Up to this point Mr. McNeely had approached the project on the basis of accepting the physical conditions as found in the field without questioning how these conditions were created. He attempted to solve these physical problems and had not reviewed the previous engineering reports with a view of identifying the causes of the current problems.
After the filing of the report and before the Court of Revision Mr. McNeely was asked questions by the owners about the works constructed in the upper watershed and the effect of these works on the flow in Mill Creek. In responding to these questions Mr. McNeely reviewed the previous reports and had come to the conclusion that the flooding in Longueuil had been caused primarily by the drainage improvements upstream in Caledonia township including the diversion to Mill Creek of the overflow from a watershed of 2,100 acres which normally drained to another outlet. Because of this review he altered his opinion on how the assessment should be calculated.
At the Tribunal hearing some of the appealing landowners in Longueuil were represented by Mr. Renner. Mr. McNeely said he became convinced during questioning by Mr. Renner that the Longueuil landowners who were suffering from flooding had changed their opinion and no longer felt the project was viable. He was certain they felt that the cause of the flooding was the work done in Caledonia Township and that Caledonia ratepayers should pay the cost of the proposed work on Mill Creek.
Because of the information obtained between the filing of the report, the Court of Revision and at the Tribunal hearing Mr. McNeely advised the Tribunal that he no longer supported the project. Since in his mind it was borderline to begin with and since the benefiting landowners appeared to have changed their minds on the project he felt he had to advise the Tribunal that the project should not proceed.
Mr. Chambers told the Tribunal that, based on the evidence of Mr. McNeely, it should have been apparent that the project was impractical at the August 8, 1995 meeting with the Council and owners and that is the point in time when a Section 40 report ought to have been filed and McNeely's invoices for work after August 8 should therefore be forfeited. Mr. Chambers argued that all of the information discovered by Mr. McNeely after the filing of the final report was in McNeely's files and should have been found by a thorough review by Mr. McNeely before the interim report was written.
Mr. McNeely argued that Mr. Chambers was making his argument with the benefit of hindsight. He reminded the Tribunal that he had approached the problem from the viewpoint that there was an existing problem to be solved and he prepared his report on that basis. It was not until after he had filed his report and assessment schedule, and the owners began asking questions about the cause of the flooding that he reviewed the previous reports with a view of establishing the impact of the previous upstream work on the historical flows in Mill Creek. This review caused him to change his mind on the appropriateness of his proposed assessments.
Mr. Ken Howes, an assessed ratepayer in Longueuil told the Tribunal that he was one of the owners that engaged Mr. Renner to appeal the assessments in McNeely's final report. He said that he still supports the project as proposed by McNeely and believes that it will solve the flooding problems. He said that although McNeely predicts that his property will flood, it has not been flooded in the past twenty years. Mr. Howes agreed with Mr. McNeely that the questioning of Mr. Renner indicated that the owners no longer supported the proposal.
Mr. Rasmussen told the Tribunal that Mr. McNeely had attempted to discuss the issue of fees with Longueuil and the Council had refused to meet with him. Because of this refusal Mr. Rasmussen argued that McNeely should be awarded costs of this hearing.
Mr. Chambers argued that the Tribunal should find in the circumstances that it was reasonable for Longueuil to request a review of the account and not award costs against Longueuil.
The normal procedure in assessing an engineer’s account would be for the Tribunal to examine the work done by the engineer to see if the work was done expeditiously and competently and to obtain documentation of the work claimed to have been done. In this case the municipality took the position that it did not challenge the engineer's accounts up to the point of the consideration of the interim report in August 1995. The municipality offered three reasons why the account beyond that point should not be paid:
1/ By his own admission Mr. McNeely said the project was borderline but was convinced by the landowners to proceed. The municipality argued that McNeely was the expert and the decision to proceed on a project is not an approval by poll of the landowners but the independent judgment of the engineer.
2/ At that point the engineer ought to have known that the project should not proceed and the engineer failed to fulfil his responsibilities under Section 40 of the Act, and
3/ McNeely failed to adequately review background materials to arrive at proper assessments in the report.
The Tribunal finds a number of deficiencies in the work carried out by the engineer. In completing his work Mr. McNeely failed to conduct certain reviews of historical data in his files until after the final report was filed and the court of revision was scheduled. Once the reviews were done, Mr. McNeely admitted that he arrived at the conclusion that he could not support either his proposed work or the proposed assessments. In the opinion of the Tribunal, Mr. McNeely was unduly influenced by the owners who attended the meetings and forgot to balance the interests of these owners with his duty to the rest of the ratepayers who would be assessed for any work he proposed.
The Tribunal is of the opinion that the final result of its hearing on the Mill Creek Drain appeal is a shared responsibility between the engineer and the elected Council for Longueuil and the ratepayers. Therefore, the Tribunal has decided to deal with the assessment of this shared responsibility and hence the accumulated costs of engineering and temporary financing up to and including the April 17, 1996, Tribunal hearing in its decision on the appeals which it heard on that date.
Decision and Reasons
After careful consideration of the evidence submitted and submissions made the Tribunal decided to issue the following orders:
1/ McNeely is to provide one copy of all of the original information developed for the Mill Creek Municipal drain report to Longueuil. That is the aerial photography, hydrologic and hydraulic modelling, field surveys and like data.
2/ The accounts of McNeely up to and including the account for attendance at the Tribunal hearing on April 17, 1996 are confirmed as rendered.
3/ There is no order of costs other than each party is responsible for its own cost and none of the cost is to be charged to the drainage works.
The reasons for this decision are:
1/ The information and materials gathered for this study should be useful for future studies. The three municipalities should have access to them at no additional cost
2/ In the opinion of the Tribunal, the accounts are properly documented and the quality of the work was unchallenged. Thus the accounts are confirmed.
3/ Both parties had valid reasons for pursuing this matter and thus each should be responsible for its own costs for this hearing.
Dated at Chatsworth, Ontario, this 3rd day of December 1996.