Coultis Drain (Re), 1997 ONAFRAAT 48

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Coultis Drain

Town of Bosanquet

Coultis Drain (RE) 1997 ONAFRAAT 48

STATUTE:

Drainage Act

HEARING:

October 23, 1997

DATE OF DECISION:

October 31, 1997

1997-48

NEUTRAL CITATION:

1997 ONAFRAAT 48

Coultis Drain

Town of Bosanquet

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF:

An appeal to the Ontario Drainage Tribunal under Section 48 and Section 54 of the Drainage Act by Erie and David Eizenga; Duncan Stanton; Basil Dolmage; Fred and Donna Buchanan; R. Adam Dolmage; Mark Fraleigh; John C. Lester; William and Joyce Campbell; Dan and Nan Sue Woodland; Howard Lester; Keith Lewis; Douglas Johnson; Barbara Dolmage; Joe Vandenberg; Lesterosa Swine - Dan Lester; Don and Barb Evans and under Section 54 of the Drainage Act by Richard Pope; Brenda and Pete Seaton; E. Anne Edwards; Robert Bryant and Kathleen Burke with respect to Coultis Drain, Town of Bosanquet.

Before:

Mr. Vernon Spencer, Chair; Mr. Edward Mailloux, Vice-Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Herbert Todgham, Vice-Chair.

Appearances:

Mr. Bill Veitch, P. Eng., on behalf of the Town of Bosanquet

Mr. Will Bartlett, P. Eng., on behalf of 17 appellants

Anne Edwards, appellant

Robert Bryant, appellant

Richard Pope., appellant

John Fildaw representing Keith Lewis

Brian St. John, appellant

Robert Pope, appellant

DECISION OF THE TRIBUNAL

This appeal was heard in the Town of Bosanquet (the Town) in the community centre at Thedford, Ontario on Thursday, October 23, 1997. Several assessed owners appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the May 16, 1997 engineer’s report on the Coultis Drain and under Section 54 of the Act from the decision of the Court of Revision. Ms. Carol McKenzie, Clerk of the Town performed the duties of the Clerk of the Tribunal.

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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1990, chap. D.17, s. 48.

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.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

. (3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

R.S.O. 1990, chap. D17, s. 54.

Preliminary Matters

At the beginning of the hearing, Mr. Veitch, P. Eng., the engineer who prepared the May 16, 1997 engineer’s report on the Coultis Drain, told the Tribunal that there is additional information that has been brought to his attention that will have a bearing on the hearing. He asked for a short recess to discuss the information with Mr. Bartlett, P. Eng., the engineering advisor to several appellants, to determine if his clients wish to proceed with the hearing. The Tribunal granted a recess.

Following the recess, Mr. Veitch told the Tribunal that the reason he asked for the recess was that from the beginning of the appeal process he has had a concern that the design in the report may not be sufficient to address the problem by the time the work actually goes to construction. He said that the channel is unstable and the dynamics ongoing in the channel make a suitable and economical design difficult. Mr. Veitch said that he did the survey and design about a year ago and proposed a design that was relevant for the channel he surveyed at that time. He realized that things would change so he had provided for minor changes in the channel by the time of construction. He said that he had inspected the site this week and found that the channel has changed considerably since the design was carried out. He said the changes are to such a degree that the methods used in the design are no longer applicable, the design needs to be altered and the cost will be considerably increased. While he has not had the opportunity to prepare detailed calculations, he indicated the cost of the project would increase from the present $149,000 estimate to perhaps as high as $260,000.

Mr. Veitch said that he is concerned that if the report is referred back for redesign and then has to go through the process under the Act again, the project will be back at the Tribunal next year with the same problem that the design is again inappropriate for the channel conditions.

According to Mr. Veitch, the outlet channel for the Coultis Drain has been in existence for quite some time and had found equilibrium. There was a significant storm on June 2, 1995, and several since. The June storm washed out the culvert at Forest Cliff Camp. He said that the volume and velocity of flow caused considerable erosion, the stability of the side slopes was upset, the slopes have become unstable and may not regain stability for five to ten years without mechanical assistance. He said the channel is deepening by eroding into the hard pan and widening. The restoration work needs to be done quickly. He said his approach to solving the problem would be the same as the current design but would utilize larger materials and more extensive coverage of the eroding areas. This is where the increase in cost would occur.

Mr. Veitch said he is asking the Tribunal to decide the landowners’ concerns about the assessments, refer the report back for redesign and then allow construction to proceed with the understanding that the costs will be significantly higher than those in the current report. Under questioning from the Tribunal, Mr. Veitch indicated that under normal circumstances he would advise Council to refer the report back to an engineer for further consideration. Mr. Veitch also agreed that, in view of the anticipated doubling of the cost of the project, it would be appropriate to review alternative solutions to the problems.

Mr. Bartlett argued that the work is not a work under Section 78 of the Act but should be a work under Section 4 of the Act. He said in his opinion a petition is required and the present report has not been authorized by a petition. In the opinion of the Tribunal, this is a matter that is in the jurisdiction of the Drainage Referee, not the Tribunal.

Mr. Bartlett also said that while the engineering approach to solve the problem as it exists today will not be appreciably different from that proposed in the current report, the size and cost of the materials to be used will be different. He said his clients are concerned with their assessments in the present report and this concern will be increased with a more costly solution. He said his clients definitely want to preserve their appeal rights and do not waive them in respect of a new report.

Mr. Bartlett told the Tribunal that, in his opinion, the work should be designed after the spring runoff and constructed before the winter season so there would be an opportunity for the area to stabilize before the next spring runoff event. Mr. Bartlett indicated that the work may have to be extended downstream of the current proposal and that would result in additional lands being assessed for the project. Under questioning, Mr. Bartlett agreed that under normal circumstances the report should be referred back to an engineer for further consideration.

The role of the Tribunal is to assist in solving problems. While the Tribunal would like to do something substantial with the current report to address the problems at the Coultis Drain outlet, the changes required are of such a magnitude that the report will have to be referred back to an engineer for further consideration. The Tribunal will make such an order. The result is that there will be a new report with new proposals and new assessments. To be fair to everyone, that report will need to proceed through the process under the Act. Everyone is aware of the time restrictions and it is important to keep the time frames as short as possible to avoid further deterioration of the channel or damage to the homes on the top of the slope at the outlet.

The Tribunal then turned to the issue of the cost of this hearing.

In response to questions from the Tribunal, Mr. Veitch said that he had expected some deterioration in the channel but not enough to require a complete redesign. He said that he had discussions with Mr. Bartlett about the project, but just recently inspected the site again and finalized his opinions on Wednesday, October 22.

In response to questions from the Tribunal, Mr. Bartlett said that he had visited the site in the spring of 1997 and again about three weeks before the hearing. He said he felt the proposed work was not sufficient to address the problems, but he did not discuss his concerns with Mr. Veitch until Friday, October 17.

Both engineers acknowledged that this channel is in a dynamic state and is actively eroding. In the report, Mr. Veitch provided for minor changes by the time of construction, so he was aware of that issue from the outset of the project. Several appellants had filed under Section 48 indicating the work should be modified. This is a second clue that the site should be revisited and discussions with owners undertaken. The Tribunal is at a loss to understand why Mr. Veitch waited until the day before the hearing to inspect the site and decide that his proposed work was insufficient and the report should be referred back. The Tribunal is also unable to understand why Mr. Bartlett would wait until three working days before the hearing before discussing his opinions on the suitability of the design with Mr. Veitch especially since he was aware of the issues three weeks before the hearing. When professional advisors are involved in the hearing process, the Tribunal expects full and timely disclosure of information so that needless hearings, along with the associated costs, can be avoided. In the opinion of the Tribunal, this hearing should have been avoided, and could have been avoided, had there been disclosure and timely investigations by the engineers involved. In the opinion of the Tribunal, the drainage works should not bear the cost of this hearing.

The Tribunal wishes to point out that the specifications form an important part of the engineer’s report. The specifications not only tell the contractor what is expected but also help the property owners understand what they are paying for and, when maintenance is required, the municipality and drainage superintendent know what they are responsible to maintain. In the opinion of the Tribunal, a detailed and complete specification document in the report which defines and explains the work to be done, completes the permanent record in the municipality and ensures that the owners get value during construction as well as in future maintenance of the project. The Tribunal feels that the new report on this project should contain much more detail than the present report.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The Council of the Town of Bosanquet is directed to refer the May 16, 1997 report on the Coultis Drain to an engineer for further consideration in light of the changes in the channel that have occurred since this report was filed.

2. Charges for preparation and attendance at the hearing by Mr. Veitch and his advisors shall not form part of, or be added to, the cost of the drainage works

3. 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.

The reasons for this decision are:

1. The engineer indicated that the design in the report is inadequate to address the current situation in the field and must be revised prior to the passing of a By-law authorizing work to be done.

2. In the opinion of the Tribunal, this hearing would have been avoided if the parties had disclosed information, discussed the changes that have taken place and the need for a new report, in a timely manner. The cost of this hearing could have been avoided. Therefore, the ratepayers on the Coultis Drain should not have to bear the cost of the hearing.