Louis and Ester Arvai v. Municipality of West Elgin, 1998 ONAFRAAT 21

Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Hoy Drain Township of Aldborough

Hoy Drain (RE) 1998 ONAFRAAT 21

STATUTE: Drainage Act

HEARING: May 5, 1998

DATE OF DECISION: May 21, 1998

1998-21

NEUTRAL CITATION: 1998 ONAFRAAT 21

Hoy Drain Township of Aldborough

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 Louis and Ester Arvai under Section 48(1) of the Drainage Act with respect to the Hoy Drain, Township of Aldborough.

Before:

Andrew Wright, Vice-Chair; Herb Todgham, Vice-Chair; Warren Jenner, Member; Charles Broadwell Member, Moira Connell Member.

Appearances:

Karl Arvai, counsel to the appellants Ester and Louis Arvai

Dennis McCready, P. Eng., on behalf of the respondent the Municipality of West Elgin.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Municipality of West Elgin (the Municipality) near Rodney Ontario on May 5^th, 1998. Joanne Groch, Administrator-Treasurer of the Municipality of West Elgin, performed the duties of the Clerk of the Tribunal.

Louis and Ester Arvai appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48(1) of the Drainage Act (the Act) with respect to the Hoy Drain, in the Municipality of West Elgin (formerly the Township of Aldborough).

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.

Preliminary Matters

At the start of the hearing Mr. Karl Arvai, counsel to the appellants, requested that the Tribunal extend the time for filing the appeal. He explained that his clients were out of the country for part of 1997 and therefore were unable to attend at some of the drain meetings or to file the appeal within the time limit specified in the Act.

Mr. McCready, the drainage engineer representing the Municipality, told the Tribunal that the Municipality has not been prejudiced by the delay in the proceedings caused by the filing of the appeal however the other assessed ratepayers have had the construction of the project delayed pending the outcome of the appeal. He said that Mr. Louis Arvai was at the meeting to consider the report and told the Council that he was unhappy with the proposal and might appeal to the Tribunal. The Council held the Court of Revision on August 7, 1997 and no appeals were filed. Since no appeals against the report had been filed the Council gave third reading to By-law 97-24 on September 11, 1997.

The Tribunal considered the request and since no prejudice to the Municipality was identified and the delay in construction of the project has already occurred, decided to grant the request and extend the time for filing the appeal of Louis and Ester Arvai to September 24^th, 1997.

Mr. Karl Arvai told the Tribunal that basis of the appeal is that the appellants are asking that the work be abandoned as unnecessary. He characterized that as a modification to the work under Section 48(1). He said that, in the alternative, the work should be modified to determine that the benefit of the work is solely to the petitioners and therefore the petitioners ought to be responsible for all the costs.

Mr. McCready objected to the Tribunal hearing any appeal on the assessment of the project. He pointed out that the other assessed ratepayers may not have understood that the hearing could consider the issue of assessment and therefore are not present at the hearing.

Mr. Karl Arvai made a motion to amend the notice of hearing to allow an appeal on assessment. Mr. Arvai said that he was ready to proceed but that, if the Tribunal thought it necessary in order to notify the other assessed owners of the appeal, he would not object to an adjournment. He argued that the Tribunal has wide latitude under Section 51 to allow the modification of the notice of hearing.

In response to an inquiry from the Tribunal, Mr. Karl Arvai confirmed that he was ready to proceed and advised the Tribunal that, in the event the hearing did proceed, he would not be calling any expert evidence to challenge the assessment schedules set out in the report.

The Tribunal considered the motion. The Tribunal notes that on October 22, 1997 the Tribunal staff sent to Mr. Louis Arvai a letter requesting clarification of the issue of the appeal. This letter has not been responded to. If Mr. Louis Arvai had responded these issues could have been settled long ago. The Tribunal recognizes that it has wide powers under Section 51 but does not think that those powers would allow it to completely ignore the flow of the Act. The Act requires a party upset by the division of assessment of a proposed project to first appeal to the Court of Revision. Those parties that appeal to the Court of Revision, if still dissatisfied, can appeal to the Tribunal. In this case, Mr. Louis Arvai has not appealed to the Court of Revision nor to the Tribunal within the time specified in the Act for appealing assessments. Consequently the Tribunal decided to deny the motion to amend the notice of hearing to allow an appeal on assessments. The hearing proceeded on the basis of the original notice of hearing with the discussions focused on Section 48(1)(b) namely “the drainage works should be modified on grounds to be stated”.

The Background

Prior to 1962 there was a drain known as the Hoy Award Drain which consisted of sections of open ditch and tile. The Hoy Award Drain was improved over the years under various reports dated 1892, 1897 and 1911. The Hoy Drain was originally constructed, under the provisions of the Act, in accordance with a report prepared by H.H. Todgham dated February 6, 1962. The 1962 report specified that the Hoy Award Drain be abandoned and that a new tile drain be constructed consisting of 350 mm (14"), 300 mm (12"), 250 mm (10"), and 200 mm (8") tile. The tile commenced at the Hill Drain in Lot 9 Concession 9 and runs in a northerly direction across County Road 2 then bending gently to a north-easterly direction through Lot 9 Concession 8 (Louis and Ester Arvai) crossing the Lot boundary into Lot 10 (S. Nacewicz) where it connects to a pond near the Lot line then bends north-westerly, then north-easterly to a second pond in Lot 10 and then northerly to the north limit of the CN/CP railway lands. Under a report prepared by W. Cnossen dated October 17, 1991, a drain known as the Arvai Branch of the Hoy Drain was constructed. This Branch consists of 150 mm and 200 mm diameter tile along the line between Lots 9 and 10, to the County Road, and along a portion of County Road No. 2. The Branch Drain outlets into the Hoy Drain approximately 3 m Southwest of the line between Lots 9 and 10.

The May 9, 1997 engineer’s report on the Hoy Drain was prepared under Section 78 of the Act, upon a request of S. & W. Nacewicz, owners of Part of Lot 10, Concession 8. The report provides for upgrading the capacity of the Hoy Drain from its outlet into the Hill Drain, upstream, to the west end of the pond immediately Northeast of the line between Lots 9 and 10.

The report recommends the construction of the covered drain having a length of 550 m to supplement the capacity of the existing Hoy Drain from its outlet in the Hill Drain to the southern pond in Lot 10 Concession 8. This new drain is to run parallel to the existing Hoy Drain and approximately five meters to the south of the existing tile. The covered drain will consist of a 6 m length of 400 mm diameter corrugated steel pipe as an outlet pipe, a 12 m length of 500 mm diameter corrugated steel pipe as an inlet pipe at the pond, 501 m of 350 mm diameter concrete tile, and a 31 m road crossing consisting of 356 mm (14") O.D. smooth-wall steel pipe.

The report also recommends:

1. the construction of a catch basin at each end of the new road crossing with a cross-connection to the existing catch basin on the Northwest side of the road.

2. the construction of a junction chamber to connect the inlet pipe from the pond to the course of the existing Hoy Drain, the new tile drain and the Arvai Branch of the Hoy Drain.

3. the connection of all existing private tile drains encountered during the construction to the new covered drain.

4. the construction of a sump in the pond at the inlet end of the inlet pipe. This sump will be lined with a layer of rip-rap placed on a geotextile filter fabric underlay.

5. that the portion of the existing Hoy Drain from its outlet into the Hill Drain, upstream, for a distance of approximately 550 m to the pond immediately Northeast of the line between Lots 9 and 10 in Concession 8, remain as part of the Hoy Drain in addition to the work carried out under this report.

6. that the portion of the Hoy Drain in Lot 11, Concession 8, be abandoned for purposes of future maintenance by the Township and be plugged at the line between Lots 10 and 11. The portion of the drain in Lot 11 will become the property of the owner of the adjoining property.

The estimated cost of the proposed work is $40,750.

The Issue

The issue before the Tribunal is whether the proposed Hoy Drain should be modified by abandoning the work.

The Evidence and the Findings

Mr. Louis Arvai told the Tribunal that he has been the owner of Part of Lot 9 Concession 8 since March, 1970. He was aware of the existence of the Hoy drain. He said the soil on the farm is a sandy loam in the depressional area near the drain and tobacco sand to the north west. He has grown tobacco on the land as well as wheat, corn and soybeans. He has not had problems farming the land near the Hoy drain.

He said that the pond on the Nacewicz property near his eastern boundary is a dug out pond with the excavated dirt placed on the long sides of the pond. No surface water from his land can get in to this pond. He has never seen the pond overflow.

He said that the soil on the Nacewicz property is lighter sand than his property and they also grow tobacco and soybeans. He has not seen water lying around the ponds. He combined the crop on the Nacewicz property for four or five years and did not notice any problem with the drainage. In all the time he has been on the farm he has not seen water ponded on the Nacewicz property.

Mr. Louis Arvai told the Tribunal his land is rolling and lateral drains exist in the areas on his land that needed drainage. He installed 3,000 to 4,000 feet of tile in 1996, most of it outletting into the Hoy drain. Some of these tiles have existed since the 1962 report constructing the Hoy drain and before. He said the Hoy drain is working satisfactorily on his land and he has no need for additional drainage. He said that he has never seen a problem on the Nacewicz property that could be corrected by a bigger outlet drain. He told the Tribunal that he has never seen any tiling work on the Nacewicz property since he bought his land in 1970. He said in his opinion, the proposed work is unnecessary and the Nacewicz family can look after their own drainage. He said his son took over the farm in 1990 and grew ten to fifteen acres of tobacco in the last three or four years.

In response to questions from Mr. McCready, Mr. Louis Arvai told the Tribunal that he did not bring this information to the attention of the Municipality until this hearing. He agreed that the Hoy drain is the only outlet for the Nacewicz property.

Mrs. Wanda Nacewicz told the Tribunal that she came to the farm in 1968. She filed photos indicating surface water on her land but she was unable to tell the Tribunal the exact date the photos were taken or if they were immediately after a rain storm. Mrs. Nacewicz filed a diagram of her farm showing the approximate location of the tile drains that had been installed on the property since 1968. She told the Tribunal that she could not remember the exact dates the tile were installed but some tiles were installed in the past three to five years while others were older. She said she thought there were additional old tiles in the farm but she was not certain of that. She said they have installed lots of tile on their land and the drainage problem has not been solved. She said if there is too much rain the water flows from the pond to the Arvai property and they still have standing water on their fields. She said the water ponds after every big rain and this happens each year.

John Poole, drainage superintendent of the Municipality since 1985-86 told the Tribunal that he had repaired the Hoy Drain on the Arvai property two years ago and three years ago. He said the problems appear to relate to the spacing between the tiles. He said the tile fills with water and then the water goes out the crack between the tile and wets the soils. When the water flow slows and finally drains from the tile the wet soil flows back into the tile causing holes to form right to the ground surface. He said he has also repaired wash outs on the Nacewicz property. He said the soils on the Nacewicz property are more of a blow sand that creates problems for the drain. He said that, in his opinion, the Nacewicz property needs a better outlet and more tile on the farm.

Mr. Dennis McCready, P. Eng., told the Tribunal that he is the engineer who prepared and filed the May 9, 1997 report on the Hoy Drain. He said the report was prepared after a written request was received from the owners of the Nacewicz property. He told the Tribunal that some of the property owners in the watershed had tile drained their lands to outlets other than the Hoy drain. This has resulted in a slightly smaller watershed than was identified in the 1962 report. He told the Tribunal that the only complaint about inadequate drainage received was from the owners of the Nacewicz property. The complaint was that the water does not go away fast enough for the use they want to make of the property. He explained that they grow tobacco and tobacco is a crop that does not tolerate flooding.

Mr. McCready said that he investigated the capacity of the existing drain and found, for the reduced watershed of 1997, the 1962 drain had a capacity to drain about ½ inch of water in 24 hours from the watershed. He said this is less than the current design standard for projects that include covered drains that also allow surface water to enter the drain.

Mr. McCready told the Tribunal that his experience was that over the years there is a tendency that landowners want more capacity in tile drains. He said that while the 1962 drain only provides a ½ inch coefficient this has been satisfactory to the landowners until recently.

According to Mr. McCready, the current design standard for tile drains with open inlets is a capacity to drain 1 inch in 24 hours from the watershed. He told the Tribunal that, in his opinion, the downstream portion of the drain requires upgrading and therefore he recommended using the existing tile and supplementing with a second tile to bring the capacity of the combined system to one inch in 24 hours from the watershed. Mr. McCready explained that he had provided for upgrading the Hoy drain only to the southern pond as the remainder of the drain is located on the Nacewicz property and, if there is a need to increase the drainage on the Nacewicz property, the owners have the option of doing so themselves. He said they could install additional tile drainage and main drains and connect to the improved outlet. He expected they would have to do some private work on their lands before the drainage problems would be solved.

In response to repeated suggestions from Mr. Karl Arvai that the problems on the Nacewicz could be caused by tile blockages in the existing Hoy Drain on that property, blockage of the inlet to the Hoy Drain from the ponds, or the lack of sufficient lateral drains or poor soils, Mr. McCready told the Tribunal that it is his belief that the outlet is the source of the drainage problems on the Nacewicz property. He said that, if there are other problems, then they can be solved by tile on the farm or improvement of the remainder of the Hoy drain on the Nacewicz property in the future. He said that the Nacewicz family had proved to him that they had done extensive tile drainage over the years and he did not think more tile on the Nacewicz property was the solution to the problem he found in his field investigation, at least until an improved outlet is in place.

In his summation, Mr. Karl Arvai urged the Tribunal to find the work was not needed at this time. He argued that there were more questions than answers in this case. He insisted that the 1962 system was working satisfactorily and met the Ministry design guidelines. He said both Mr. McCready and Mr. Poole had said that more tile was needed on the Nacewicz property. He pointed out that the watershed had been reduced by the landowner tiling their land to other outlets. In his opinion, insufficient investigations had been done to prove that the outlet was the problem so this work was just a “stab in the dark” attempt to solve an unknown problem. He argued the outlet did not need to be improved and the work should be abandoned.

In his summation, Mr. McCready argued that the appeal was filed on the basis that the drain should be modified on grounds to be stated but no modification has been suggested. He said that Mr. Louis Arvai had maintained the position that nothing should be done ever since the time that the survey was undertaken yet he did not attend at the meetings nor did he send a representative nor did he appeal within the time limits specified in the Act, nor did he provide any alternative solution to that recommended in the report. He argued that no new information had been brought forward at this hearing to support Mr. Louis Arvai’s position that nothing should be done. He also said that there clearly is a problem on the Nacewicz property that requires attention. Mr. McCready urged the Tribunal to adopt the report as presented.

The Tribunal examined the evidence and made the following conclusions:

1. Mr. Karl Arvai is correct that the drain was designed in 1962 to ½” drainage coefficient. It is recognized that drainage requirements change over time as land use changes, as the economy changes and as agriculture progresses. In the opinion of the Tribunal, that is what has happened in this case. The drainage provided in 1962 is no longer an acceptable level for the Nacewicz property. Over the years they have installed a large number of private tiles and they are still having drainage problems so they now have to get the outlet improved to carry off the water that they are collecting or may need to collect in the future. They have asked the Municipality to improve the outlet as provided for in the Act.

2. The engineer appointed by the Municipality has made an examination of the problem and concluded that the proper starting place is the outlet for the property and that enlargement of the Hoy Drain is needed. Once this has been done, it may be necessary to install additional private tile on the Nacewicz property.

3. The Nacewicz family have taken steps to help themselves by installing tiles. They are proposing a sensible two-phased approach to the problem - improve the outlet and then improve the farmland drainage if needed.

4. The engineer has used the current acceptable design standard of 25 mm of water to be removed from the watershed in 24 hours. The engineer has designed the drain for open inlets as there are large open inlets (ponds) on the drain.

5. The only evidence provided by the appellant is his unsubstantiated opinion evidence that neither he nor his neighbour Nacewicz has a drainage problem and there is no need to enlarge the drain. Both of these matters were clearly and forcefully refuted by the witnesses that supported the report.

The Tribunal is not convinced that the project is without merit and ought to be abandoned.

In the opinion of the Tribunal, the essence of the appellant’s position is that the neighbours do not have a problem and, if they do, they should solve it themselves. The evidence is that there is a drainage problem on the Nacewicz property. Contrary to the evidence of Mr. Louis Arvai who could not recall any drainage works being done on the Nacewicz farm at any time over the last 28 years, the Tribunal heard the evidence from the drainage superintendent, from the engineer and from Mrs. Nacewicz whose evidence, albeit unspecific, was clear that there were over a number of years extensive private drainage works undertaken on the Nacewicz farm. The scheme of the Act is to provide outlet solutions for people with drainage problems. There was no credible evidence to refute the engineer’s opinion that the outlet improvement is a necessary step to solve the drainage problem on the Nacewicz farm. With these circumstances in mind, the Tribunal has to consider who should pay the cost of the hearing.

In the normal course of events during proceedings under the Drainage Act, landowners speak for themselves to express any concerns about a project that affects their land. These landowners attend the meetings and express their opinions, debate with the engineer and their neighbours over the details of the project and participate in the process of arriving at the design of a project. Throughout such a debate information flows between the affected landowners and the engineer so that, if there is recourse to the Tribunal, whether or not advocates appear on behalf of parties, the facts of the case are known to all of the parties and the Tribunal is asked to settle the differences of opinion as to how the facts are to be interpreted. Occasionally the Tribunal is required to weigh evidence to determine essential facts but normally, with responsible participation throughout the Drainage Act process by the stakeholders, there are no surprises. There is usually no material controversy about the facts, and the Tribunal's decision focuses on how the facts are to be applied.

In this case Mr. Louis Arvai attended only one meeting - the meeting to consider the report. His position from the outset has been that he has all the drainage he requires for his property so that any additional work on the drain is unnecessary. His stance is that, if the neighbours desire additional drainage, they should be prepared to pay for it. To justify that position he seems to have convinced himself that the ponds on the existing Hoy Drain are not open inlets to the drainage system and that the Nacewicz family had not installed any tile drainage on their land.

The physical evidence of tile drainage is easily determined by examining the land and talking to the landowners. It appears that Mr. Louis Arvai did neither; indeed, Mr. Louis Arvai was so disinterested in hearing what his neighbour had to say about the ponding of water on and the tile drainage in their lands that he elected not to remain at the hearing for that evidence. In short, Mr. Louis Arvai did not participate in the process in any way that was constructive. Being absent from the Country does not excuse him from the obligation to participate responsibly. He has a son who continues the family tobacco farming operation on the lands in issue and he was represented at the hearing by a son, an experienced litigator. These persons, or others like them who are trusted with many family business matters, could have been authorized to represent the family interest in this matter if Mr. Louis Arvai found it inconvenient to do so himself.

After the Council of the Municipality passed the by-law authorizing the work, Mr. Louis Arvai filed an appeal and requested the Tribunal to extend the time for filing appeals so this hearing could be held. This involved delaying the hearing from September 1997 until May 1998 because of Mr. Louis Arvai's absence from the Country. The allowing of the extension has been referred to previously but in this context it is to be observed that Mr. Louis Arvai had ample opportunity to investigate not only the facts but to obtain professional assistance to form expert opinions about them. Despite this opportunity, we were advised that Mr. Karl Arvai was first retained a couple of weeks prior to the hearing and there was no expert opinion evidence tendered to support the position advanced by Mr. Louis Arvai.

In all cases, the Tribunal expects the appellant to provide clear, cogent evidence to the Tribunal. In this case Mr. Louis Arvai simply made assertions that no tile work had been done on the Nacewicz property, that the ponds were not open inlets to the Hoy Drain and that the work was unnecessary. Absent corroborative, independent evidence to support these propositions, coupled with the apparent lack of inquiry on his part as to whether or not the assertions were true and given the body of information and opinion to the contrary formed through the course of the Act process, the Tribunal is of the opinion that this hearing was unnecessary.

In the opinion of the Tribunal, when an appeal is filed there is an onus on the appellant to provide credible evidence in support of the appellant's position. In this case the appellant provided no such evidence either because it does not exist or because he did not obtain and present it. For this reason the Tribunal is of the opinion that it is unfair to assess the costs of this hearing to the drainage project and thereby to Mr. Louis Arvai's neighbours.

ORDER OF THE TRIBUNAL

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

1. The appeal of Louis and Ester Arvai under Section 48(1) is dismissed.

2. The Tribunal assesses the appellant $2,000.⁰⁰ in costs to partially offset the costs of this appeal. This $2,000.⁰⁰ is to be paid to the Municipality of West Elgin within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45 day period, the council is directed to add $2000.⁰⁰ to the taxes in arrears on Roll number 030-054, S½ Lot 9, Concession 8, (Louis Arvai). This $2,000.⁰⁰ is not to be considered eligible for grants.

3. It is ordered that there be no other order as to costs and all parties are responsible for the balance of their own costs. Attention is drawn to Section 73 of the Act.

The reasons for this decision are:

1. In the opinion of the Tribunal, there is a drainage problem on the Nacewicz property and the solution proposed in the engineering report on the Hoy Drain dated May 9, 1997 is a reasonable approach to address this problem. Therefore the Tribunal will not order either a change in the work or its abandonment.

2. In the opinion of the Tribunal, given the circumstances of this case, it is unfair to charge all of the cost of this hearing to the drainage works and therefore the appellant must bear some of the cost of this appeal.

Dated at London, Ontario this 21^st day of May, 1998.