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:

Hayter Drain Township of Goderich

Hayter Drain (RE) 1999 ONAFRAAT 22

STATUTE:

Drainage Act

HEARING:

August 10, 1999

DATE OF DECISION:

August 31, 1999

1999-22

NEUTRAL CITATION:

1999 ONAFRAAT 22

Hayter Drain

Township of Goderich

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

AND IN THE MATTER OF:

An appeal to the Ontario Drainage Tribunal by William Easton and Robert Acheson under Section 54 of the Drainage Act from the decision of the Court of Revision for the Hayter Drain in the Township of Goderich

Before:

Andrew Osyany, Vice-Chair; Herb Todgham, Vice-Chair; James Rickard, Vice-Chair; Moira Connell, Member, Nick Doelman, Member.

Appearances:

Robert Acheson, appellant in person.

William Easton, appellant in person.

Phillip Morrissey, solicitor for William Easton.

Andrew M^cBride, P. Eng., on behalf of the respondent, the Corporation of the Township of Goderich.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers, Township of Goderich (the Township) in Holmesville, Ontario, on Tuesday, August 10, 1999. William Easton and Robert Acheson appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the May 3, 1999 Court of Revision for the Hayter Drain in the Township of Goderich.

Linda Cranston, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the July 1998 Engineer’s Report and the March 15, 1999 Amendment to the Engineer’s Report on the Hayter Municipal Drain, Township of Goderich, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Pertinent Sections of the Drainage Act

Section 31 of the Act is as follows:

31. Where an existing drain that was not constructed on requisition or petition under this Act or any predecessor of this Act is incorporated in whole or in part in a drainage works, the engineer in the report shall estimate and allow in money to the owner of such drain or part the value to the drainage works of such drain or part and shall include such sum in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, chap. D.17.

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. D.17, s. 54.

The Background

Allan and Marjorie Hayter wished to tile drain 32 hectares of their property but found that a legal outlet did not exist. After discussions with Township officials and neighbors, they decided to circulate a drainage petition. In early April 1997, this petition, bearing the signatures of Mr. and Mrs. Hayter and nine residents in the residential area at the west end of the Lot, was submitted to the Township.

The Township authorized the preparation of the engineer’s report appointing Maitland Engineering Inc. to respond to the petition. Andrew M^cBride, P.Eng., is the engineer assigned to the project.

The site of this proposed new Drain is at the west end of Union Sideroad, which is approximately 5.6 km south of the Town of Goderich, off King’s Highway No. 21. The total watershed area for which this Drain has been designed is 34.5 hectares. The largest portion of this watershed is cleared, worked agricultural land used for the production of cash crops. Also included are two Township roads, Union Sideroad and Fuller Drive. As well, all of the residential area at the west end of Lot 16 has been included within this watershed due to the "cut-off benefit" it will receive from the Drain. This entire residential area, including the lake bluff, is approximately 5.7 ha, excluding Fuller Drive.

The 1998 Engineer’s Report, filed as Exhibit 2, shows that originally the water from the Hayter farmlands and the residential area found its way to Lake Huron through a gully running from Fuller Drive westerly between the lots owned by the two appellants, Acheson and Easton. As explained later, the flow of water is now confined in a pipe. The work proposed by the engineer will divert the flow from the farmlands northerly along the rear or east side of the subdivision lots to Union Sideroad so that, except when the run-off exceeds a 1:10 year storm, it will no longer flow through the pipe in the gully.

The pipe system in the gully between the Acheson and Easton properties was apparently installed in two stages. The first, in 1986-87, consisted of four large catchbasins at intervals down the gully toward the lake. With the exception of the upstream catchbasin at Fuller Drive, each of these had an earth berm on its downstream side to catch the water from above and force it into the pipe connecting the catchbasins. From Fuller Drive to the catchbasin about half way to the beach this pipe was 12 inches in diameter while downstream from these the pipe was 48 inches and then 60 inches with rip rap at its outlet at the beach. The second stage in 1992 involved the installation by Mr. Acheson of an auxiliary large catchbasin on his side of the gully near its head, which he connected into the system with a 48 inch diameter pipe running down the gully into the head of the existing 48 inch pipe. This was to carry whatever water could not be handled by the upstream 12 inch diameter pipe section.

Assessed landowners Joseph F. Farnsworth, Brent Hillier, Michelle Hillier, W. J. Millar, Edith Millar, Doris M^cArthur, Mary Jane M^cArthur, Peggy Willigar, John M^cGibbon, Ann M^cGibbon, and Joyce Shack appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Act from the decision of the September 28, 1998 Court of Revision for the Hayter Municipal Drain in the Township of Goderich. That appeal was heard Thursday, October 29, 1998.

The Tribunal ordered that the engineer's report be referred back to him for further consideration of the assessments in the light of the Tribunal's direction regarding the principles to be used in assessing the costs of the project. The Tribunal further ordered certain specific amendments which relate to procedures but which did not change the work recommended by the engineer in any way.

As a result of the above order from the Tribunal, Mr. McBride prepared an amendment to the July 1998 Engineer’s Report. The amendment to the engineer’s report is dated March 15, 1999. The decision of the May 3, 1999 Court of Revision to consider the report was to accept the revised assessments contained in the March 15, 1998 Amendment to engineer’s report. Mr. Easton and Mr. Acheson appealed that decision to the Tribunal. A copy of the plan is attached to and forms part to this decision.

Preliminary Issue

At the outset of the hearing, Philip Morrissey, solicitor representing William Easton and who was assisting Robert Acheson asked the Tribunal for clarification of whether or not this was a hearing de novo in light of the Tribunal’s order which resulted in an amendment to the engineer’s report from which today’s appeal arose. He said that he was prepared to lead evidence that was not given at the last hearing that would change the Tribunal’s original decision. He was also concerned with the effect of the new evidence since three, but only three, of the five panel members on this hearing also participated in the original hearing.

Mr. Morrissey said that his clients did not present evidence at the previous hearing as they were satisfied with the original report. This new evidence would address the design of the project, specifically the engineer's decision not to incorporate the existing Acheson/Easton private drains into the Hayter drain.

Mr. Morrissey's point came down to this: were the appellants restricted to a consideration of how the engineer carried out the Tribunal’s order of November 24, 1998 to re-assess the costs of the project, or were the appellants also able to have the original Tribunal order changed, by obtaining a modification of the project?

The Tribunal reserved a ruling at this point and directed that the appellants should present all the evidence they wished to bring forward in support of their position to have the Tribunal consider changing the original order as well as deal with the assessment of the costs of the project.

After the appellants had led all the evidence, the Tribunal made a decision that the Tribunal would only consider how the engineer carried out the Tribunal's order of November 24, 1998 to re-assess the costs of the project.

In the opinion of the Tribunal, the Drainage Act, Section 101, means what is says: the decision of the Ontario Drainage Tribunal is final. If a party is not satisfied with the decision, relief is available by way of a judicial review through the Courts. Additionally, the Tribunal has the power to re-hear a matter. Before a re-hearing takes place, a party must formally apply for a re-hearing and the Tribunal makes a decision as to whether or not to grant the request for a re-hearing. The Tribunal has set out the tests to be applied in a re-hearing application in the case of the W.W. Turner Pumping Works as follows:

“The Tribunal will consider the following principles before a rehearing is ordered.

1. The integrity of the hearing process. This requires that all parties properly prepare for the hearing and bring forward all relevant evidence. The rehearing tests ask the questions: Was the proposed evidence to be considered at the rehearing available at the time of the original hearing? Could this evidence have been made available by the parties by due diligence? Have the applicants for the rehearing applied for it expeditiously?

2. The public and private interests in having correct decisions. The operating assumption is that the Tribunal has received all relevant evidence, correctly considered all aspects of the case, including legal and engineering principles, and reached a correct decision. If that is not so, there is a public and private interest in correcting the errors. The rehearing tests ask the following questions: Are there any material factual or legal errors on the face of the decision? Have the fundamental facts and circumstances so changed that the decision no longer reflects the realities? If the proposed evidence had been received at the original hearing, would the decision have been different?

3. The public and private interests in finality of Tribunal decisions. The rehearing tests ask the following questions: To what extent have the parties relied on the decisions? Have the works been completed? To what extent will the non-applicant parties be affected by the result sought by the applicant?

4. The procedural and financial costs of a rehearing. Generally, if a rehearing is ordered, all original parties would be given notice and have the opportunity to participate in the rehearing. There are very significant procedural and financial costs associated with a rehearing. The rehearing tests ask the following questions: Is the correction of the alleged wrong out of proportion with the overall effect of the existing decision? To what extent will the non-applicant parties be affected by the procedural and financial cost of a rehearing, regardless of the outcome of the rehearing? Can the non-applicant parties be fairly expected to absorb the cost of individual participation and the overall costs that may be assessed to the drain? If the answer is no, can these costs be fairly expected to be absorbed partially or fully by the applicants?”

This is not a formal re-hearing of the original hearing. This is a new hearing, which deals with the amended report of the engineer. The appellants filed an appeal under Section 54 of the Act from a decision of the May 3, 1999 Court of Revision. A Section 54 hearing is restricted to assessment matters.

The Tribunal, considering Mr. Morrissey’s request as an informal request for a re-hearing, is of the view that the evidence led by the appellants falls far short of being able to meet the re-hearing tests. Of course, the appellants are free to bring a formal application for a re-hearing, and present such evidence as they feel would bring about a decision in favour of a re-hearing. The view of this panel of what it heard would in no way impact on what would be presented at a formal application.

The Issue

The issue before the Tribunal is whether or not the assessments, proposed in the March 15, 1999 Amendment to the Engineer’s Report on the Hayter Municipal Drain and confirmed by the May 3, 1999 Court of Revision, are appropriate and in accordance with the principles as directed in the Tribunal’s November 24, 1998 decision.

The Evidence

Robert Acheson, assessed landowner, told the Tribunal that:

• He apologizes for not attending before the Tribunal at the earlier hearing but his work quite often takes him out of the country and he was unable to attend.

• He is a seasonal resident whose permanent home is in Oakville. Since 1968 he has been in the investment business.

• In 1983 when he bought the cottage he recognized that the gully was unstable.

• His cottage is built right on the edge of the slope.

• The structure in the gully between himself and Mr. Easton was professionally engineered. The firm of Heard Construction was hired to construct the facility.

• In 1986 construction on the facility began. Before the system was completed they received a heavy rain which washed out the lower part. Construction was then completed in 1987.

• Additional construction/upgrades were completed in 1992. Between 1987 and 1992 no work was done. Since 1992 no additional work has been done. The facility has been stable since 1987.

• Mr. Easton and himself have incurred costs in excess of $l00,000 to construct this facility. It is an over-engineered, stable drainage system not only for himself but for the municipality at large.

• He said they did not go to other landowners in the area or to the municipality with a request that they contribute to the expense.

• He has planted in excess of 300 trees, and still continues to do so, to help keep the gully stable.

• In his opinion, the gully is stable and he does not know why the engineer did not design a drainage system that took advantage of the facility he and Mr. Easton have constructed.

• He feels that both he and Mr. Easton are being penalized for being good citizens.

• He wants to be treated as an equal citizen – same terms of assessment as other property owners.

• He wishes Mr. Hayter had approached him about using his drainage system and they could have made an agreement whereby costs to all would be much less.

In response to questions of the Tribunal as to whether or not he received notices to attend the site meetings, meeting to consider the engineer’s report and the Court of Revision, where he would have had an opportunity for input to design of the Drain, he said he did receive the notices but did not attend because of other commitments. He was also unable to attend the first Tribunal hearing but did admit he received a notice advising him assessments were under appeal and that the outcome of the appeal could affect his assessment.

William Easton told the Tribunal that:

• He is semi-retired and lives in London. He is a consultant.

• His in-laws purchased this property in 1959 and in December 1994 he himself purchased the property.

• His daughter and her family live on his property year round.

• His cottage is about 10 to 15 feet from the edge of the ravine.

• Mr. Acheson’s property is directly north of him. A ravine separates their property.

• Prior to development taking place on the east side of Fuller Drive there was no erosion in the gully.

• In 1985/86 he and Mr. Acheson worked with an engineer to design a system to control the erosion in the gully.

• A contractor began the construction in 1986 but before he completed the system they received a heavy rainfall and the bottom portion was washed out.

• The system he and Mr. Acheson designed was completed in 1987.

• Some more construction was completed in 1992.

• They have had no problems with this drainage works since 1987.

• They have done no maintenance since 1992.

• He and Mr. Acheson have incurred expenses in excess of $100,000 to install this facility.

• He did not approach the municipality to pay for this facility as he was unaware of the Drainage Act.

• The design of the Hayter drain makes no provision for drainage of water in the subdivision. Thus some water will continue to drain through the gully. No allowance was given to himself or Mr. Acheson for the use of their system as back up for overflow water beyond the capacity of the Hayter Drain and ability to take run off from the subdivision.

• He attended at most of the site meetings but did not give input as he thought the decision on how and where to build the drain was a “done deal”.

• He did not put forth, before today, a proposal to use the drainage facility installed by himself and Mr. Acheson.

• In his opinion, the best plan for this area would have been to connect into the facility that he and Mr. Acheson have installed. If that plan was chosen he would not be seeking compensation for capital costs of that system.

• He attended the 1998 Tribunal hearing but did not give evidence as there was no mention as to how reassessment was going to be done.

• In his opinion, he is not receiving any benefit from this drain and so should not be assessed a cut off benefit of $2,500.

• He would like to be treated equally with neighbours in this subdivision when he is being assessed.

• He did not know that Mr. Hayter had approached Mr. Acheson about using their drainage facility.

• He objects to his increased assessment that appears in the March 15, 1999 amended engineer’s report.

Mr. Morrissey argued that Mr. Easton should receive a legal allowance under Section 31 of the Act. He said Mr. Easton should not have had to request the allowance but that the engineer should have given an allowance when he prepared his report.

In response to a question by Mr. McBride as to whether or not he had raised the issue of allowances at earlier meetings or at the Court of Revision, Mr. Easton admitted that he had not.

Joyce Shack, Joanne Hood and Peggy Willigar told the Tribunal that at the site meetings they attended ratepayers were asked for their suggestions/ideas about the design of the drain.

Andrew McBride, P. Eng., told the Tribunal that:

• He is a 1970 engineering graduate specializing in water resources engineering. He and a partner established Maitland Engineering in 1976 and have specialized in municipal drainage, with involvement in about 300 drainage reports. He acts as drainage superintendent in five municipalities. Most of his work is in northern Huron and Bruce counties.

• In regard to the Hayter Drain, alternative designs were discussed at the on-site meetings. Potential use of the Easton/Acheson facility had been discussed.

• He made two site inspections of the Easton/Acheson facility. He inspected it with a geotechnical consultant and the road and drainage superintendents. He said he saw at least six holes in the ground and a space where water was running outside of the pipes. He also saw a building precariously sitting on edge of the gully. He was advised the system was approximately 15 years old. His decision was not to recommend to the Township making use the Easton/Acheson facility. He has not changed his mind about this.

• Mr. Hayter told him he was advised by Mr. Acheson that he could outlet into the facility if he assumed 100% liability.

• In the event of a one in ten year storm, the new drain is designed such that overflow water from the farmlands east of the subdivision that cannot be handled by the proposed Hayter Drain would go through the Easton/Acheson ravine.

• In his opinion, the new drainage scheme will provide some cut off benefit for the Acheson and Easton properties but it may not be much greater than for the other parcels in the subdivision.

• He exercised his best judgement in carrying out the principles to be followed in the Tribunal order when he prepared his amended engineer’s report.

• He interpreted the November 24, 1998 Tribunal order as opening up the question of allowances for the construction of the berm. His reasoning was that the owners of the subdivision lands had a legal right to build the berm only on their own lands, and the value of these lands would be about $43,500. The cost of construction of the berm on these lands would also be higher by about $11,000. He, therefore, increased the allowance in his original report by $9,455 to reach a total of $11,000. Mr. McBride urged the Tribunal not to make any changes to the allowances in his amended report as none of the assessed landowners challenged them.

• On page 10 of the November 24, 1998 Tribunal order there is a discussion regarding providing an allowance to the municipality for the drain being located on the road. However, the amended report does not provide for any allowance.

• The work had been broken into sections for purposes of assessing the costs of the drain, and the November 24, 1998 Tribunal order gave directions for re-assessment, section by section, generally indicating a range of percentages, within which he was to exercise his discretion. He re-assessed the work in the light of the Tribunal order, and generally applied the top percentage in assessing benefit to the lands in the subdivision. This resulted in having the sum of $33,585 to be distributed within the subdivision as benefit and outlet.

• Within the subdivision, he was directed to assess somewhere between $2,000 and $4,000 as cutoff benefit to each of the Easton and Acheson properties. He assessed $2,500 against each property.

• He then adjusted the assessment of the small, non-building lots by 20% to reflect the increase in the cost of the project, adjusted for the size of the smallest lot and divided the remaining $28,538 by the 26.634 lots. The average lot was assessed for $937 benefit and $134 outlet, for a total of $1,071. The total assessment on the Acheson and Easton properties came to $3,571 each.

Mr. McBride requested that the Tribunal order a correction to his amended report. On page 22, the Summary of Assessments, all of the Section 26 assessments were erroneously shown against Union Sideroad and should be corrected to read “Union Sideroad $6,495 and Fuller Drive $470”.

When asked by Mr. Morrissey why he did not look at Section 31 of the Act and provide an allowance or the Acheson/Easton drain, Mr. McBride said he did not provide an allowance as Section 31 does not apply in this case as the Easton/Acheson facility was not incorporated as part of the project.

Joyce Shack questioned Mr. McBride as to why he did not assess property owners on the north side of Union Rd. for cut-off benefit. Mr. McBride said it is his opinion there will not be a cut-off benefit to those on the north side.

Alison Loch, councilor for the Township, told the Tribunal she was in attendance at the first site meeting. She said her recollection of that meeting was that at the beginning of the meeting, the engineer stated that this was everyone’s opportunity for input to the design of the drain. She said she does not recall either Mr. Easton or Mr. Acheson offering that their facility could be used.

In final argument Mr. Morrissey submitted that:

• The reason for this hearing is that the Tribunal made the decision that Acheson and Easton should be treated differently than the other landowners and be assessed an additional $2,500 for cut off benefit.

• He has presented evidence suggesting that Mr. Acheson and Mr. Easton should not be assessed a cut off benefit and Mr. McBride also indicated that in his opinion Mr. Acheson and Mr. Easton should not be assessed a cut off benefit.

• It is his opinion that the Tribunal’s November 24, 1998 decision was not based on fact or expert opinion. He requested that the Tribunal correct that decision

Accordingly, he requested that:

• The Tribunal make an order that all property owners in the subdivision be assessed in an equal manner.

• The Tribunal make the decision that to some degree the private drainage works also benefits others in that subdivision.

• The appellants be given an allowance under Section 31 of the Act.

Mr. McBride urged the Tribunal not to consider giving an allowance to the appellants under Section 31. A Section 31 allowance is given only if the appellants' present facility was incorporated in the drain. To incorporate the Easton/Acheson facility would mean significant changes to the present works. He agreed he would not have directed a cut-off benefit assessment to the Easton and Acheson properties but the Tribunal’s order directed him to do this. He had originally assessed the properties according to acreage. He said in hindsight if he had assessed equal costs to all property owners then maybe the two hearings could have been avoided.

The Findings

The Tribunal reviewed the evidence and submissions.

Proposed modification of the drainage works

The appellants filed an appeal under Section 54 which is clearly an assessment appeal. However, a main focus of the appellants’ evidence was concerning a change in design of the proposed drainage works. There was plenty of opportunity for all parties to deal with this at earlier meetings. The engineer’s report clearly states that alternative designs were discussed at earlier meetings. Council notified the appellants of the meetings. Mr. Easton was present at most of the meetings but did not make any presentation. Mr. Easton was present at the previous Tribunal hearing. Mr. Acheson, for his own reasons, did not attend nor did he send a representative. Clearly the Act sets up a process allowing for input into the design of the drain and appeals on the design of the drain and the assessment schedules. The appellants chose to wait until today to come forth with a proposed new design. They had ample opportunity to bring this proposal forth before today.

Mr. McBride had considered the existence of the Acheson/Easton facility, inspected it and made a professional decision not to incorporate the facility in the drain. Despite vigorous cross-examination by the appellants, he has not changed his professional opinion.

If the appellants had truly wanted the Tribunal to consider a new design in the context of an appeal from the amended report, they should have filed a request for an appeal under Section 48. This type of appeal should be served within 40 days after mailing of the notice of meeting to consider the report. There would be serious costs involved in changing the design of the project at this time. When the Tribunal is asked to make a major change, which in effect is an alternative engineering project, there is a heavy burden on the proponents. The proponents must convince the Tribunal that the alternative is preferable. The Tribunal must be able to come to a decision on the relative merits of the project as designed by the engineer and the alternative placed before it by the proponents. The Tribunal can only do this if the proponents bring to the Tribunal a fully worked out proposal. Unquestionably, this means that the proponents must retain the services of a drainage engineer well ahead of the hearing so that the appellant's engineer's report can be provided to the engineer appointed by Council, and the Tribunal has the benefit of the evidence of well informed professionals.

In the alternative, if the appellants wished to have a re-consideration of the November 24, 1998 Tribunal decision, they could have made a formal application for a re-hearing.

Allowances

Mr. Morrissey argued that the appellants should receive an allowance under Section 31 for the advantage that the Hayter Drain will receive from the use made of the Acheson/Easton facility. The Tribunal disagrees. The engineer has been adamant about not including the Acheson/Easton facility in the drainage works, and it is not part of the drainage works. Allowances could only have been given under Section 31 if the Acheson/Easton facility was part of the proposed drainage works.

The November 24, 1998 Tribunal decision on page 10 discusses the engineer granting suitable allowances to the municipality for the land taken for the drain. There is no such allowance in the amended report. At the hearing, the engineer gave evidence that he considered the Tribunal decision, but since there was no specific direction to reconsider allowances his opinion was that no allowance needed to be given to the municipality in this case.

The engineer's methodology in working out the allowances for the Hayter property is fully set out in the original report. The November 24, 1998 Tribunal decision compliments the engineer on it. The drainage works have not changed but the engineer has interpreted the Tribunal decision as re-opening the question of allowances. This panel vigorously disagrees with the methodology adopted by the engineer for re-working the allowances. The engineer's methodology is contrary to well established practice and the plain reading of the Drainage Act, s. 29.

While this panel is very critical of the engineer's conduct in this instance, to bring a closure to this matter the majority of this panel will not order a change in the allowances.

Assessments

The November 24, 1998 Tribunal decision criticised the engineer's report for the lack of detail in working out the assessments. The amended report has no more detail than the original report. At the hearing, however, Mr. McBride did provide detailed information, allowing the Tribunal to conduct an effective review of the amended report.

The November 24, 1998 Tribunal decision directs that a cut off benefit of between $2,000 and $4,000 should be assessed to each of the Acheson and Easton properties. In his March 15, 1999 amendment to the engineer’s report, Mr. McBride set the cut off assessment at $2,500. The Tribunal did not hear any evidence to show that the engineer wrongly exercised his discretion and that the assessment should have been $2,000 vs. $2,500 or $4,000. Instead, the appellants argued that they should not be assessed any cut off benefit and that they should be assessed in the same manner as all other assessed landowners in the subdivision. This panel is satisfied that the engineer properly exercised his discretion in setting the cut-off benefit to the Acheson and Easton properties in the manner directed by the Tribunal.

The role of the Tribunal and the role of the engineer

The scheme of the Drainage Act is that an independent engineer is appointed to make an examination of the situation (including consultation with landowners), prepare the necessary design, work out the estimates and allowances, and to shepherd the project through the various consideration and appeal steps to completion. The engineer is entrusted with enormously significant responsibilites and has correspondingly high professional duties.

With the exception of a few matters reserved to the Drainage Referee, the Ontario Drainage Tribunal is charged with the duty to oversee the process and to make a final binding determination. An order of the Tribunal binds the parties and that includes the engineer. An engineer may not like the decision of the Tribunal any more than the assessed owners, but the engineer is bound, equally with the others.

Where the Tribunal directs that certain things be done, the engineer must comply with the direction. The Tribunal is critical of the engineer’s conduct in this case, as appears from this decision. Another instance showing the engineer’s unwillingness to comply with the Tribunal’s direction is a minor one but very graphic. The November 24, 1998 Tribunal order provides that the report is amended by deleting the last two sentences of section 11.1 of the report. The amended engineer's report, however, reads as follows: “As per item 2 of the Tribunal Order, it is felt appropriate to delete only the last sentence of section 11.1 of the Report...”. Clearly on this point the engineer did not carry out the order of the Tribunal. This panel is restoring the original order of the Tribunal.

This Tribunal has operated on a principle of trust and respect accorded to professional engineers, neither of which is diminished by the differences of opinion and judgment that emerge in hearings. From time to time there are professional engineers appearing on both sides of a hearing. The Tribunal has never had to question the integrity of these engineers or discount their evidence, simply because their professional judgments have diverged.

On the other hand, if it appears to the Tribunal that its directions are not followed in good faith, the Tribunal would not be able to deal with engineers in a spirit of trust. The Tribunal would not be able to have a report referred back to the original engineer for reconsideration, but would have to have the report referred to another engineer. The Tribunal would also then have to deal with the question of additional costs caused by such a referral.

The Tribunal has always had a great deal of respect for Mr. McBride and his work and is therefore at a loss to understand why he did not make all of the changes as ordered or suggested by the Tribunal while at the same time he did make a change that was not called for by the text of the decision.

DECISION OF THE TRIBUNAL

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

1. The appeal of William Easton and Robert Acheson, under Section 54 be dismissed.

2. Before passing By-law number 14 for 1999 (Hayter Municipal Drain), the Clerk is to amend the

March 15, 1999 amended engineer’s report, by deleting from Page 22, the Summary of Assessments,

the line that says: “Special Non-Prorateable – Union Sideroad $6965” and replacing it with: “Special

Non-Prorateable – Union Sideroad $ 6,495 and Fuller Drive $ 470”.

3. Before passing By-law number 14 for 1999 (Hayter Municipal Drain), the Clerk is to amend the

March 15, 1999 amended engineer’s report, by deleting paragraph 2 in its entirety and replacing it

with the following wording (which was Order #2 of the Tribunal’s November 24, 1998 decision):

“The Drainage superintendent should appoint one or more local residents to be catchbasin

supervisors ­to keep the catchbasins clear of debris and sediment when possible to do with manual

labour and otherwise to alert the Drainage superintendent to have the work done. The cost of the

catchbasin supervisors is a cost of maintain­ing the Drain."

4. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of

the Drainage works and it is ordered that there be no other order as to costs and all parties are

responsible for their own costs. Attention is drawn to Section 73 of the Act.

The reason for this decision is:

The Tribunal was convinced by the evidence that the assessment of costs contained in the March 15, 1999 amended engineer’s report are in accordance with the November 24, 1998 order of the Tribunal.

Dated at Shelburne, Ontario this 31^st day of August, 1999.