Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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:
Deschambault Municipal Drain Township of Osgoode
Deschambault Municipal Drain (RE) 1997 ONAFRAAT 9
STATUTE:
Drainage Act
HEARING:
March 19, 1997
April 9, 1997
1997-09
NEUTRAL CITATION:
1997 ONAFRAAT 9
Deschambault Municipal Drain
Township of Osgoode
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 by Mr. Emile Deschambault under Section 5(2) of the Drainage Act, from Council's decision not to appoint an engineer to prepare a report to improve or repair the Deschambault Municipal Drain, Township of Osgoode.
Before: Mr. Herbert Todgham, Vice-Chair; Mr. John Taylor, Vice-Chair; Mr. Ron MacDonell, Member.
Appearances: Mr. Emile Deschambault, appellant Mr. Kevin Grace, on behalf of the respondent the Township of Osgoode
DECISION OF THE TRIBUNAL
This appeal was heard in Metcalfe, Ontario on March 19, 1997. Mr. Emile Deschambault appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 5(2) of the Drainage Act (the Act), from Council's decision not to appoint an engineer to prepare a report to improve or repair the Deschambault Municipal Drain, Township of Osgoode (the township).
Mr. Wayne Robinson, Clerk of the township performed the duties of the Clerk of the Tribunal.
Section 5(2) of the Act is as follows:
5 (2) Where a petitioner,
(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or
(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council,
the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O., c. 126, s. 5.
The Background
The Deschambault municipal drain was initiated, under the Act, by petition in 1974. It was originally referred to as the Faubert drain but at some point became known as the Deschambault Drain. Both drain names appear on documents at the township office. The drain was constructed in 1974 under a report of A. J. Graham. The drain commences at the half lot line between N.W. 1/4 lot 20 and the S.W. 1/4 lot 20 Concession V. The drain runs in a south east direction intersecting Regional Road 6 at right angles. From there it turns 90 degrees and runs easterly parallel to Regional Road 6, on the Deschambault property, for a distance of 754 feet and then it turns 90 degrees and crosses Regional Road 6. From there it flows easterly parallel to the Regional Road just south of the road allowance to an outlet into Grey's Creek (formerly known as the Middle Castor River).
It is the Tribunal's understanding that the outlet portion of the Deschambault Drain along the south side of the Regional Road was constructed by the Regional Municipality of Ottawa Carleton in about the year 1974 when it was constructing and regrading the road. Although it is part of the Deschambault Drain, the Region made no charge to the upstream owners for the work it did on this outlet portion.
The slope on the drain on the north side of the Regional Road is 0.05% and on the south side 0.03%. This was all the slope that was available in 1974. The Grey's Creek was deepened about 2 feet in 1990. The Deschambault drain has not been deepened to take advantage of this additional depth at the outlet.
The Deschambault Drain was designed for surface drainage but not subsurface outlet.
A culvert crossing Regional Road 6 at the Faubert property (the property on the south side of Regional Road 6) taking the water from the southern portion of the watershed north across the road at the western point where the Deschambault drain intersects Regional Road 6 was placed when the road was reconstructed in 1974. This culvert has been blocked as directed by a Tribunal order dated November 8, 1990. When the culvert was blocked the southerly road ditch along Regional Road 6 was cleaned and graded so that the water on the south side of the road flows easterly to that portion of the Deschambault drain on the south side of the road and from there to the outlet in Grey's Creek. None of this water should cross the road to the north (Mr. Deschambault).
Mr. Deschambault petitioned the township to prepare an engineer's report to move the existing drain from his property onto the Regional Road allowance and then construct a new drain along the north part of Regional Road 6 to outlet into Grey's Creek. The township has refused to appoint an engineer to respond to this petition.
Because the Deschambault Drain was constructed under the Act it is the duty of the township to maintain and improve it as required, assessing the cost among the various property owners as set out under the Act.
The Issue
The issue before the Tribunal is whether or not an engineer ought to be appointed to prepare a report to relocate, repair or improve the Deschambault Municipal Drain.
The Evidence and the Findings
Mr. Emile Deschambault told the Tribunal that he purchased this 50 acre farm in 1956. At that time he could cultivate the land. It is Mr. Deschambault's evidence that his flooding and wet ground problems all started in 1974 when the road was elevated. He said that water currently flows from the Faubert farm on the south side of the road, north, through the road culvert on the Deschambault Drain, and then back onto Mr. Deschambault's fields on the north side of the Regional Road where it lies for long periods of time preventing him from farming the land. He said that he cannot even grow grass or pasture. Only 15 acres of the land can be farmed now. Mr. Deschambault reminded the Tribunal that none of this water is supposed to flow from the south side of the road onto his land but should rather travel east down the Deschambault Drain on the south side of the road to an outlet into Grey's Creek. According to Mr. Deschambault, this part of the drain on the south side of the road is not, in fact, serving as an outlet for the waters as it should.
Mr. Deschambault told the Tribunal that this is a long standing issue with the township and he wants to have a proper solution to the drainage problem so he can farm the land like he was able to do prior to the 1974 report. Mr. Deschambault told the Tribunal that he wants a report prepared to take the water along the north part of the road property straight to Grey's Creek rather than have the drain going across the road. He was emphatic that he is not prepared to pay any cost for an engineering study of the issue nor any construction cost to address the problem.
Mr. Kevin Grace, drainage superintendent for the township, presented a chronology of events on this drain to the Tribunal. Mr. Grace said that the Council is not certain what the best solution to the problem is but that the Council is concerned about accepting the petition and appointing an engineer. Mr. Grace summed up the township's position as follows:
1/ Council is reluctant to appoint an engineer and incur cost that may be charged to Mr. Deschambault particularly since he has indicated to the Council, in writing, that he is unwilling to pay any of the cost of an engineer or construction that would address the drainage problem.
2/ Council is of the opinion that moving the drain from the farm land to the road property will not provide the expected improvement. Council's opinion is that whether the ditch is on one side of the fence or the other it will not affect the drainage of the field. Lateral drains leading from the field to the ditch are necessary to drain the field.
3/ Council is concerned about the high cost of relocating the drain since very little, if any, benefit may be derived.
Mr. Grace said that the Council could have appointed an engineer but that would have resulted in a large bill for Mr. Deschambault whether work proceeded or not and Council anticipates that he would still not be satisfied with the result.
Mr. Grace told the Tribunal that there is a Bell Canada fibre optics cable running parallel to Regional Road 6 on the north part of the road property. This cable would have to be relocated in order to construct a drain on the road allowance. Bell Canada has given a cost estimate of $45,000 to do this work. Mr. Grace indicated that the cost of construction of a drain on the north part of the road property would be about $10,000 bringing the cost of the drain requested by Mr. Deschambault to about $55,000.
Mr. Grace said that on November 14, 1996 he conducted a survey from the Grey's Creek to the cross culvert of the Deschambault Drain, along the south side of the road and then to the north side. This survey showed that the drain is silted above design grade by approximately eight inches. The outlet at the Grey's Creek is grown up with cattails. The township is prepared to maintain the drain at any time. Mr. Grace said that, in his opinion, maintenance will not provide the amount of drainage improvement that Mr.Deschambault is looking for.
The Tribunal examined the evidence and concluded that the Deschambault Drain must be dealt with in accordance with the Act. Under the Act, regardless of what solution was proposed, Mr. Deschambault, as the major benefiting owner, would have to be assessed a significant portion of the cost of the work. Mr. Deschambault was very emphatic that he was not prepared to pay any of the cost of his proposal or any other work that may be carried out on the drain. Because Mr. Deschambault is not prepared to contribute to the cost of any work that may be undertaken, there really is no way that the township can reasonably do anything under the Act without an ensuing argument with Mr. Deschambault over the payment of his assessment.
While Mr. Deschambault believes that moving the drain onto the road allowance and digging a ditch on the north part of the road property to Grey's Creek will improve the drainage of his property, Mr. Grace is not certain that a significant drainage improvement will result.
Unfortunately the Tribunal had no definitive engineering evidence to review in order to assist it in deciding:
a) whether the part of the drain on the south side of the road is preforming its intended function as an outlet for the upstream waters from both north and south of the road, and
b) whether moving the drain onto the north side of the road allowance and digging a ditch on the north part of the road property to Grey's Creek will improve the drainage of Mr. Deschambault's land.
The Tribunal has sympathy with the position of the township. Mr. Deschambault wants an engineer appointed to investigate the matter and design a new ditch to solve his drainage problem but is unwilling to pay any of the cost involved. The Tribunal does not want to create a situation that would result in a money issue between the township and Mr. Deschambault. Therefore the Tribunal decided not to direct the township to appoint an engineer to respond to Mr. Deschambault's petition. However, if Mr. Deschambault provides, to the township, evidence of an engineer that a drain on the north part of the Regional Road property is feasible and will provide better drainage than the present drain in the existing location AND that he is prepared to contribute to the cost of the work, the township ought to review its position on this matter.
Because the work on the outlet portion of the Deschambault Drain along the south side of the road was originally carried out by the Regional Municipality and because Mr. Deschambault alleges that his flooding and wet ground problems started when the road was raised, it seems to the Tribunal that perhaps the Region should be persuaded to assist Mr. Deschambault in collecting this engineering evidence.
The Tribunal heard evidence of silting of the outlet portion of the Deschambault Drain along the south side of the road, and of the lowering of Grey's Creek. It seems to the Tribunal that it may be possible to deepen the Deschambault Drain to take advantage of the improved depth at Grey's Creek thus providing a better outlet for the watershed. This may be a partial, if not a full, solution to the complaints of Mr. Deschambault. If Mr. Deschambault brings forward to the township proper engineering evidence concerning his proposal, the township could weigh this against the deepening of the drain in its present location and then decide on the best course of action to relieve Mr. Deschambault's drainage problems. However, Mr. Deschambault must understand that under the Act, before the township can spend any money, either investigating or dealing with problems, he, Mr. Deschambault, must show that he is prepared to pay his share of the cost involved.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
1/ The appeal of Emile Deschambault from council's decision not to appoint an engineer to respond to his petition for improvements to the Deschambault Drain is dismissed.
2/ 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/ Mr. Deschambault provided no technical information to convince the Tribunal that his proposed solution was feasible.
1/ In the opinion of the Tribunal, Mr. Deschambault would have to be assessed a significant portion of the cost of any engineering study and any resulting construction that would address this drainage problem. Mr. Deschambault is emphatic that he will not pay any of these costs.
Dated at Chatham, Ontario this 9th day of April, 1997