ONTARIO DRAINAGE TRIBUNAL

APPEAL:

MacCRIMMON MUNICIPAL DRAIN (RE) Township of Caledonia Gerard and Mrs. Catherine Gauthier Stanley A. McLeod Mr. Bruce Gowland Mrs. Daniel Lenart Mr. Ewen MacNeil

MacCRIMMON MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 08

STATUTE:

Drainage Act

HEARING:

April 16, 1996

DATE OF DECISION:

May 3, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 08

MacCRIMMON MUNICIPAL DRAIN

TOWNSHIP OF CALEDONIA

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal concerning the MacCRIMMON MUNICIPAL DRAIN, TOWNSHIP OF CALEDONIA from the February 15, 1996 decision of the Court of Revision and the Report of the Engineer under the following:

a) Section 50 (2) of the Drainage Act by the Township of Kenyon; and Alex and Lila Mogelonsky, Dieter & Astrid Meng.

b) Section 48 (1) of the Drainage Act by Casey and Conelus Van Drunen and Harold MacCrimmon.

c) Section 48 (1) and Section 65 (5) of the Drainage Act by Gerard and Catherine Gauthier; Rondo MacSweyn; Gordon Newhook; J. Ward Gowland; Catherine Mcllwain; and Janet MacCrimmon.

d) Section 54 of the Drainage Act by Denis Lavigne, Stanley MacLeod, Gordon E. Newhook, Ward J. Gowland, Alex Mogelonsky, C.A. Van Drunen, Brian & Sandra McCauley, Lucien & Myrna Ladouceur, Harold and Janet MacCrimmon, Catherine Mcllwain, Rondo MacSweyn, Laurie Mack, Robin Taggart and Bruce Gowland.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice- Chair; Mr. Herb Todgham, Vice-Chair; Mr. Rene Montpellier, Member.

Appearances:

Mr. Gerard and Mrs. Catherine Gauthier, appellant; Stanley A. McLeod, party to the appeal; Mr. Bruce Gowland, party to the appeal; Mrs. Daniel Lenart, party to the appeal; Mr. Ewen MacNeil, party to the appeal; Mr. Alan MacKinnon, counsel to the appellants, except Mr. & Mrs. Gauthier; Mr. Philip McNeely, on behalf of the respondent, the Township of Caledonia.

DECISION OF THE TRIBUNAL

This appeal was heard in St. Bernadin, Ontario on April 16, 1996. Joanne Bougie-Normand, Clerk Treasurer of the Township of Caledonia (Caledonia), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). Several ratepayers of Caledonia and the Township of Kenyon (Kenyon) assessed in the engineer's September 1995 report for the MacCrimmon Municipal Drain Improvement appealed to the Tribunal under Section 48 and Section 54 of the Drainage Act (the Act). The Township of Kenyon appealed to the Tribunal under Section 50 of the Act.

Section 48 of the Act is as follows:

48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

The applicable parts of Section 50 of the Act is as follows:

50(1) The council of any local municipality to which a copy of a provisional by-law was sent under subsection 46(1) may, within forty days after the copy of the provisional by-law was sent to the clerk, appeal to the Tribunal from the report by serving the clerk of the initiating municipality and the clerk of every other municipality assessed by the engineer with a written notice of appeal setting forth the reasons for such appeal.

50(2) The reasons for appeal may be the following, or any of them,

(a) that the proposed drainage works as it affects the appealing municipality should be abandoned or modified, on grounds to be stated;

(b) the work is unnecessary; or

(c) that the assessment against lands and roads within the limits of the appealing municipality and roads under its jurisdiction is illegal, unjust or excessive. R.S.O. 1980, c. 126, s. 50.

Section 54 of the Act is as follows;

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

Mr. Gerard Gauthier and Mr. Ewen MacNeil requested the Council of the Township of Caledonia (the Council) to clean the MacCrimmon Municipal Drain from Highway 417 to the outlet in the Urquhart Municipal Drain and further requested that "the culverts be properly sized and replaced for that section of the drain and the cost of the installation and future maintenance of the culverts become part of the drain maintenance".

The Council, by resolution dated May 23rd, 1995, appointed McNeely Engineering Consultants Ltd. to prepare a report under Section 78 of the Drainage Act, R.S.O. 1990, D.l7. McNeely Engineering Consultants Ltd. named Philip McNeely as the engineer in charge of the project. The on-site meeting was held on August 2nd, 1995 at 10:00 a.m. Fifteen landowners within the drainage area attended the meeting.

Upstream owners do not wish to pay a share of the downstream culverts and petitioned against the project under date March 11th, 1995. Thirty-two signatures appeared on that petition. The upstream owners stated that the original by-law of 1948 left the construction and maintenance of culverts with the property owners who required culverts and that no change to this requirement should be made at this time.

A revised report and by-law dated 1965 made no allowances for construction of bridges as owners were given allowances in 1948.

Caledonia asked to have the culvert sizes defined in the new report so that culvert replacements or new culverts do not cause upstream flooding.

The drain is approximately 22,300 feet long, running from the Urquhart Drain through Caledonia, under Highway 417 and on upstream into Kenyon Township through to Lot 14, Concession 8, Kenyon. The drainage area is 2,600 acres. The proposed work consists of the supply and installation of two 2.2 m diameter corrugated steel pipes 3.5 mm thickness, 10 meters long.

The Issue

There are three issues before the Tribunal:

1. Are the assessments as proposed in the engineer's report as modified by the Court of Revision appropriate?

2. Is the work necessary?

3. Are the benefits to be derived from the work commensurate with the estimated costs?

The Findings

Mr. Philip McNeely told the Tribunal that the report provided for the installation of two culverts, one on the Gauthier property and one on the MacNeil property. The culvert of Mr. and Mrs. Gauthier has suffered structural damage. It is a 2 m x 1.6 m steel tank, partially collapsed, with a narrow driving platform. This culvert is undersized. The culvert on the MacNeil property is a 1.5 m diameter steel tank. It is undersized for the drain and should be 2.2 m in diameter. The existing headwalls require maintenance, and the driving platform is narrow. Mr. McNeely told the Tribunal that the channel clean-out requested by Mr. Gauthier and Mr. MacNeil was not necessary at this time and could be carried out as repair under the existing by-law when it is necessary.

Mr. McNeely said that in calculating the assessment, the construction costs of the two bridges ($7,000 each) were assessed against the abutting owners, and all other costs were assessed to the watershed. He said that the other owners look after their own culverts, so these two property owners should as well. He said he felt the cost of complying with the process of the Act should be assessed to the watershed, and that is what he has done. The resulting schedule charges approximately 50% of the total cost against the owners who are receiving the culverts and 50% against the watershed. Mr. McNeely also said that in calculating the assessments, he had considered the strong feelings from the owners that the future maintenance of the channel should be assessed against upstream owners based on the old report (By-Law 10, 1987), while maintenance of these culverts should be assessed against the owners of the abutting land.

The court of revision was held on February 15, 1996. The decision of the court of revision was filed as an exhibit at the hearing and is as follows:

"...if deteriorated or unsafe crossings (bridges) are replaced in the future, the property owner of the said crossing will be responsible for 40% of the total cost and the other 60% will be charged against upstream owners as per the assessment schedule of the Engineer's Report of 1986 as modified by the Court of Revision and as shown in By-Law No. 10, 1987 of the Township of Caledonia." "...this will include all items which are an integral part of the crossing, erosion protection material, (rip-rap), as well as backfill material over the top of the crossing."

In response to questions, Mr. McNeely told the Tribunal that:

• He has provided sizes for culverts throughout the drain, i.e. for both Caledonia and Kenyon townships.

• The cost of calculating the culvert sizes was about $1,000.⁰⁰.

• His professional opinion is that the culvert on the Gauthier property is unsafe, and both the Gauthier and MacNeil culverts are too narrow and both require replacement.

Mr. Kent MacSweyn spoke on behalf of Kenyon. Mr. MacSweyn told the Tribunal that he is a member of the Council of Kenyon and is authorized by resolution of Council to appear at the hearing on behalf of the Township. He indicated that Kenyon Council feels that the project costs are excessive, the assessments against the ratepayers of Kenyon are unjust, and the process is illegal.

Mr. MacSweyn presented evidence that culvert materials could be purchased and installed at less cost than estimated by the engineer. Mr. McNeely replied that the supply of materials and installation would be tendered and the actual costs charged to the project. No matter what the cost estimate, the landowners will only be charged the actual costs incurred. The Tribunal agrees with Mr. McNeely. The Tribunal also notes that costs change over time, and even the quotes provided to Mr. MacSweyn may change by the time this work is ready to be tendered.

Mr. MacSweyn argued that the culverts had excessive length. He pointed out that the Ministry of Transportation (MTO) standard for access culverts is a 15-foot driving platform. He argued that these drain crossings are too long and should be reduced to the MTO standard. Mr. McNeely stated that over the years, farmers had asked for wider driving platforms on crossings for safety reasons. He pointed out that farm equipment is large, awkward and expensive. In his opinion, the 20± foot driving platforms provided by his report are appropriate for farm crossings. The Tribunal notes that the length of the crossings is a safety concern. In this case, the Tribunal accepts the opinion of the engineer that a 20± foot driving platform is appropriate for the uses expected to be made of the crossings.

Mr. MacSweyn argued that Section 78 does not give the engineer the authority to do this work. He argued that the assessments were unjust since the 1948 report required the property owner to provide a crossing, and several landowners in Kenyon had done just that. In Mr. MacSweyn's opinion, the Caledonia landowners should not now be allowed to have the drain install their culverts and charge costs to Kenyon ratepayers. Mr. MacSweyn also argued that the on-site meeting did not take place at the site but rather at the Township Hall, and then moved to the site.

The Tribunal does not have jurisdiction to deal with the legal argument of whether or not Section 78 provides authority for this work. The Tribunal is aware of many situations where new drain crossings have been installed under a report under Section 78 of the Act. In fact, if Mr. MacSweyn's position is accepted, then it would be impossible for a landowner to have a crossing installed after the original drain report was adopted, no matter how long ago that was. The Tribunal is aware of many reports where the division of assessment between municipalities has been altered from the original assessments in a report under Section 78 of the Act. Referee Turville dealt with the holding of the site meeting at a location other than "the site" in Grace Eves et al vs. Township of Amherst Island, August 1983.

Several landowners upstream of Mr. MacNeil's property addressed the Tribunal. The basic arguments offered was that their property received no benefit from the work proposed and they should not be assessed any of the cost of the work. These landowners believe that the original drain report from 1948 set out the requirement that all crossings were the responsibility of the owner, and this cannot and should not be changed now. Mr. McLeod told the Tribunal that he thought his assessment on the MacCrimmon Drain should be lower because he also has to pay for the Nora Fraser Drain. The Nora Fraser Drain crosses his property and outlets into the MacCrimmon. Mr. McLeod agreed that all of his land that is assessed into the MacCrimmon Drain does flow into the MacCrimmon Drain. The Tribunal recognized the situation of Mr. McLeod but sees it as being no different from other landowners. Some landowners can construct drains on their property to take their water to the outlet, others have to cross the lands of a neighbour and do so by agreement or by a drain under the Act. Both incur costs to transport their water to an outlet. In fact, when the Urquhart Drain is maintained, repaired or improved downstream of the outlet of the MacCrimmon Drain, then the watershed of the MacCrimmon Drain will be assessed part of the cost of that work. Each owner is responsible for paying their share of the cost of conducting the water artificially caused to flow from their property to a sufficient outlet, wherever that may be.

The Tribunal accepts the opinion of Mr. McNeely that the Gauthier culvert is unsafe and the MacNeil culvert is undersized and requires a wider driving platform. No engineering evidence to the contrary was presented by any of the witnesses. On this basis, the appeal of Kenyon that the work is not required fails. The Tribunal also accepts that a 20± foot driving platform is reasonable for a drain crossing used by large modern farm equipment. On this basis, the appeals that the drainage work should be modified by shortening the length of the crossings fails.

No evidence was presented to the Tribunal on the issue of "benefits commensurate with the cost" and therefore appeals based on this ground must fail.

On reviewing the wording of the report, the Tribunal found the maintenance clause to be unclear. Mr. McNeely told the Tribunal that his intention was that the maintenance of the culverts is to be the responsibility of the abutting landowners, but eligible for grants. The cost of maintaining the channel is to be charged to the watershed based on the assessment schedule in By-Law 10, 1987. In the opinion of the Tribunal, this does not comply with the requirements of Section 18 of the Act. Section 18 is as follows:

Subject to section 33, the engineer in the report shall provide for the construction or the replacement, enlargement or other improvement of bridges, culverts, pumping stations and water gates rendered necessary by the drainage works including the cost of the construction or the replacement, enlargement or other improvement of the bridges, pumping stations, water gates and culverts, in the assessment for the construction, improvement, maintenance or repair of the drainage works, and they shall for the purposes of maintenance or repair, be deemed part of the drainage works. R.S.O. 1980, c. 126, s. 18.

In the opinion of the Tribunal, the crossings on the Gauthier and MacNeil properties, once specified as part of the drain, must be maintained as part of the drain. In arriving at this decision, the Tribunal realizes that the Act, under which the 1948 report was written, provided for making allowances for farm crossings. This policy was revised in 1975 when the Act made it mandatory that crossings required by the drainage work had to be installed and maintained by the municipality as part of the drainage work. It appears to the Tribunal that the current report must bring these two crossings into compliance with the Act as it exists in 1996.

On reviewing the assessments, the Tribunal accepts the argument of the upstream owners that they receive no benefit from the work. The Tribunal notes that no upstream owners are assessed for benefit. The Tribunal agrees with Mr. McNeely that the upstream owners are assessable for outlet liability since each owner has a responsibility to take their water to a sufficient outlet. The Tribunal feels that the upstream properties are contributing about the same amount of water per acre to be passed through these culverts. The Tribunal recognizes a significant benefit to the landowners adjacent to the culverts. Therefore, the Tribunal decided that:

1. The overhead cost should be charged 50% to each culvert to reach a total cost for each culvert.

2. The total cost of each culvert (including overhead) should be assessed 50% benefit to the abutting landowner and 50% as outlet assessment to the contributing watershed.

3. Maintenance of these culverts should be charged on the basis of the assessment schedule in this report, with 50% of the maintenance cost of each culvert assessed to the abutting owner and 50% assessed to the upstream owners, pro rata on the outlet assessment set out in the schedule.

4. Maintenance of the channel should be charged based on By-Law 10, 1987.

In the opinion of the Tribunal, Caledonia does not have the authority to specify the culvert sizes in upstream Kenyon Township. Therefore, the reference in the report to the size of culverts to be installed in Kenyon ought to be removed.

In the opinion of the Tribunal, the report ought to be amended by the engineer. The required amendments are:

1. The assessment schedule.

2. Deletion of the schedule of culvert sizes in Kenyon Township.

3. Clarification of the maintenance provisions.

4. Provision of a specification for the supply of materials, installation and maintenance of the culverts.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to direct that the costs, including overhead costs, for the installation of these culverts be charged 50% to the abutting landowners and 50% to the watershed as an outlet assessment. All other appeals are denied. Mr. McNeely is directed to amend the report before By-Law 64-1995 is given third reading.

The reasons for this decision are:

1. The Tribunal accepts the expert evidence of the engineer that the culverts on the Gauthier and MacNeil properties require replacement.

2. In the opinion of the Tribunal, once crossings have been installed as part of a drainage works, they must be maintained by the municipality as part of the drainage works.

3. In the opinion of the Tribunal, Caledonia does not have authority to specify the size of culverts in Kenyon Township because Kenyon is upstream of Caledonia.

4. Specifications for the work must be included in the engineer's report because:

(a) Section 8 of the Act requires them.

(b) without specifications, there is no way to determine the need for and control future maintenance.

ORDER OF THE TRIBUNAL

It is ordered that:

1. Before the Council of Caledonia passes By-Law 64-1995, the engineer is to modify his report by:

(a) deleting reference to the size of culverts in Kenyon Township.

(b) adding to the report a specification for the construction and maintenance of the culverts.

(c) amending the assessment schedule by dividing the overhead costs equally between the two culverts and the assessing the total cost of each culvert 50% to the abutting landowner as a benefit assessment and 50% to the contributing watershed as an outlet assessment.

(d) amending the repair and maintenance clause to require maintenance of the culverts to be part of the drain with the costs charged 50% to the abutting landowner and 50% to the upstream owners pro rata on the outlet assessment set out in the schedule.

Once the modifications have been made, the Council of Caledonia may pass By-Law 64-1995 adopting the amended report.

2. The engineer is to make the modifications to his September 1995 report at no additional cost.

3. All appeals under Sections 48, 50 and 54 are dismissed.

4. Appeals filed under Section 65(5) are improperly filed and are therefore dismissed.

It is ordered that there be no 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 3rd day of May, 1996.