W.J. Douglas Municipal Drain (Re), 1999 ONAFRAAT 3

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:

W.J. Douglas Municipal Drain Township of Champlain

W.J. Douglas Municipal Drain (RE) 1999 ONAFRAAT 3

STATUTE:

Drainage Act

HEARING:

January 21, 1999

DATE OF DECISION:

February 4, 1999

1999-03

NEUTRAL CITATION:

1999 ONAFRAAT 3

W.J. Douglas Municipal Drain Township of Champlain

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 Jean-Paul Cusson and Victor Reasbeck under Section 54 of the Drainage Act from the decision of the Court of Revision with respect to the

W. J. Douglas Municipal Drain in the Township of Champlain.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Gertrude Levac, Member.

Appearances:

Jean-Paul Cusson, appellant.

Victor Reasbeck, appellant.

Jean Decoeur, on behalf of Jean-Paul Cusson, appellant.

Leo Tremblay, P. Eng., on behalf of the Respondent, the Township of Champlain.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Champlain in Vankleek Hill, Ontario, on Thursday, January 21, 1999. Jean-Paul Cusson and Victor Reasbeck appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision with respect to the August 1998 engineer’s report from Leo Tremblay, P. Eng., on the W. J. Douglas Municipal Drain in the Township of Champlain (the Township). Mrs. Jeanne Charlebois, Deputy Clerk of the Township, performed the duties of the clerk of the Tribunal.

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.

At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the August 1998 engineer’s report of Leo Tremblay, P. Eng., on the W. J. Douglas Municipal Drain, Township of Champlain, having been served notice of this hearing are made parties to this hearing.

The Background

The W. J. Douglas Municipal Drain (the Drain) is a watercourse which was first improved under the Act through a report prepared in February 1927, by W. H. Hagwood, Civil Engineer. The Provisional By-law was adopted in April 1927, the Court of Revision was held in June 1927, and the final By-law was adopted on July 6, 1927. The Township records contain the Drain By-law and the engineer’s report and Schedules of Assessment. However, there is no plan of the Drainage basin and there is no profile of the works. Although there is no surviving plan of the original construction, the extent of the 1927 Drain was well described in the text of the engineer’s report. The works were described as “commencing at a point where the Little Rideau River crosses the road between the 3^rd and 4^th Concessions, Station 0, thence running westerly and southerly to the point where the C.P.R. intersects the line between Lots 6 and 7 in the 4^th Concession a distance of just over 8,700 feet. The dimensions of the Drain were “the bottom width of the ditch is to be 2 ½ ft. from Station 0 (lower end) to Station 70 and 2 ft. from Station 70 to the upper end and the side slopes are to be 1¼ horizontal to 1 vertical throughout ”.

A request for maintenance was received by the Township of West Hawkesbury and the Drainage Superintendent found that, in the absence of a profile and plan of the works, he could not proceed with the requested maintenance. The instructions to the Engineer were to reconstruct the plan of area Drained, survey the existing ditch and integrate into the report improvements as might be desirable by the present owners.

Through the site meeting with owners, certain improvements to the municipal Drainage system were requested. These include the extension of the Drain from its previous point of termination at Station 1+500 upstream towards Highway 34 (see attached plan).

The report provides:

1. A schedule for the maintenance of the existing Drain based on the assessment schedule from the 1927 report and the plan and profile as best they can be reconstructed at this time.

2. Upstream improvements to the Drain commencing at Station 0+000, a point on the south side of the Via Rail Canada railway allowance where it intersects Highway 34 and from there running north-easterly along the south side of the railway embankment until it reaches a concrete culvert at Station 0+511. Here it crosses the railway embankment and is joined by a branch which originates 150 m. to the west, along the north side of the railway embankment. From this point, the Drain flows north-easterly along the north side of the railway embankment until it reaches the Canadian National Railway embankment (operated by Ontario L’Orignal Railway Inc.). It then flows north along the west side of this embankment until it crosses under the CNR. It then goes southerly along the east side of the CNR and then northerly again, following the direction of Via Rail and across the 6-7 Sideroad to connect with the original head of the Drain at Station 1+500 at the south west corner of the Cusson property. The improvements begin at the proposed head of the Drain at Station 0+000 and continue downstream through the Cusson property and along the existing Drain for 600 m to Station 2+100 at a point about 100 m west of the Cusson east property limit. The improvements in the present report will extend from Station 0+000 to 2+100. (Note that in this report Station 0 is the head of the Drain while in the 1927 report Station 0 was the outlet of the Drain).

The estimated cost of the work is $56,640. This cost is assessed at 51.2% benefit and 48.8% outlet. The Drainage area is 377.7 hectares.

The Issue

The issue before the Tribunal is:

Are the assessments for the improvements to the W. J. Douglas Municipal Drain, as recommended by the engineer and altered by the Court of Revision, appropriate?

The Evidence and the Findings

Leo Tremblay, P. Eng., the engineer who prepared and presented the August 1998 engineer’s report, told the Tribunal that not much has changed in the watershed since the original Drain was constructed in 1927. He said that the only work necessary on the majority of the existing Drain is a work of maintenance. He prepared his plan and profile for the maintenance of the existing Drain and prepared a schedule of maintenance of this Drain which reflects exactly the assessment in the 1927 report. He said it is his understanding that the only appeals are from the assessments for the proposed improvements.

Mr. Tremblay explained that he had designed the improvements based on comments heard at the site meeting. He said that the 1927 Drain was assessed 27% benefit and 73% outlet. He said that, in his opinion, the assessment for the new section should be divided at a ratio of 50% benefit and 50% outlet. The schedule proposed is close to this division. He said he assessed outlet on an area basis and benefit on a linear basis to the parties affected. The small lots were grouped into block assessments.

Mr. Tremblay told the Tribunal that the Court of Revision made only minor adjustments to the assessment schedule.

In response to questions from the Tribunal Mr. Tremblay acknowledged:

1. There are typographical errors in the report and plan such as wrong gradients on the profile, there are unclear sections on where the spoil is to be placed, and that the improvement work would not proceed until after the Township completes the work of maintenance on the existing Drain.

2. The culverts in the existing 1927 Drain were the responsibility of the owners at the time that the Drain was constructed and since this is a work of maintenance in that section, lowering or replacing the culverts remains the responsibility of the adjacent landowners. The existing culverts will not handle the flow when the Drain is running full and some flooding will occur upstream of the culverts.

3. In the improved section of the Drain the only culverts affected are those of public authorities that have to pay the cost of upgrading culverts so there is no provision in the report dealing with culverts.

4. The cost of maintaining the 1927 Drain would probably be in the range of $15,000-$20,000, but this is not included in the report or the estimates of the cost of the work.

Sid Siversky, an assessed landowner, told the Tribunal that he did not understand that the cost of the proposal did not include the charges for the maintenance of the 1927 Drain or that the culvert crossings were the responsibility of the adjacent landowners. He told the Tribunal that he felt misled in the process and now is questioning his assessment for this work.

Jean Decoeur, P. Eng., spoke on behalf of the appellant Mr. Cusson. Mr. Decoeur told the Tribunal that he had noted several minor errors in the report and profile and he filed a copy of Exhibit 3 with the Tribunal wherein he noted the discrepancies that he had found. Mr. Decoeur then used the profile of the existing Drain and the proposed improvement to show that, if the channel on the Cusson property is just maintained, the work of improvement on the Cusson property could be eliminated without affecting the flow from the upstream lands. He also pointed out that the work on the upstream 600 m of the Drain on Mr. Cusson’s property was assessed as a maintenance work on the 1927 Drain on a prorata basis to the 1927 assessment schedule. The work on the same 600 m of channel was then assessed again to Mr. Cusson as part of the assessment schedule for the improvements proposed in the upstream extension of the Drain. Mr. Decoeur told the Tribunal that all that is required on the land of Mr. Cusson is to maintain the existing Drain. He requested that the Tribunal eliminate the improvement work on Mr. Cusson’s land and the entire assessment against his property for the improvement. He said Mr. Cusson is quite prepared to have the Drain maintained across his property and to pay for this under the maintenance schedule for the existing Drain.

Mr. Decoeur also asked if the cost of the engineering for the report had been divided between the work required to reconstruct the plan and profile from the 1927 report and the work required for the improvements. He argued that the engineering costs for the maintenance work, including the updated assessment schedule for it, should be charged to the maintenance project and the engineering costs for the improvement should be charged to the improvement.

In response to questions from Mr. Tremblay, Mr. Decoeur told the Tribunal that Mr. Cusson would be content with the maintenance work only on his land and he realized that, in this situation, he would receive no allowances for this work. He said that he expected that some flooding might result, but that flooding would be the result of culvert sizes as opposed to the size of the channel on the Cusson property.

Victor Reasbeck told the Tribunal that all of the drainage from his property goes into the Drain below the part that is to be improved. He said that there is no flooding in the area except for two or three days in the spring. He said, in his opinion, the area does not need to be touched except for cleaning up the ice storm damage from last year.

In his response, Mr. Tremblay told the Tribunal that the engineering costs to date have been submitted as a lump sum, but there could be a division of the cost between the maintenance section and the improvement section of the report. He argued that the proportion for maintenance should be smaller, because it took less work to prepare the assessment schedule using the 1927 report than it did to construct the new assessment schedule for the upstream improvement and prepare the report for it.

The Tribunal examined the evidence and has concerns about the authority for preparing this report. The Tribunal decided to proceed on the assumption that there is authority for the report. If it is found there is no authority for the report then the body making that determination will be able to make appropriate orders on the issue of the report.

The Tribunal decision is based on the premise that the municipality will be proceeding with the downstream repairs prior to the work of improvement.

The engineer made it clear that the culverts in the channel covered in the 1927 report were not part of the Drain at that time and since only maintenance is being done now no work can be done on these culverts as part of the project. The Tribunal agrees with the engineer that the adjacent landowners are responsible for the cost of any culvert work necessary as part of the maintenance work under the 1927 Drain report, until such time as a new engineer’s report covering culvert work in this section of the Drain is obtained in accordance with the Act.

The Tribunal does not agree with the method used for assessment of benefit based on a per meter rate. In the opinion of the Tribunal, the benefit conferred on a property may have much more to do with the soil type, location in the watershed, increased property value due to Drainage provided, shape of the parcel that is affected by excess moisture and other like matters rather than the length of the Drain on a property. However, the Tribunal took note of the fact that the majority of the landowners did not appeal their assessments and in order to salvage as much as possible of the money spent to date, the Tribunal decided not to order the individual benefit assessments to be amended but to make the following directions to the engineer:

• Based on the evidence of Mr. Decoeur and on review of the profile, the Tribunal decided to direct that the proposed improvements should stop at Station 1+500, the upstream side of the Cusson property. The effect of this decision is that the 1927 Drain will be maintained to the profile provided for that Drain for its entire length and, since there is no improvement work affecting the properties of the two appellants, the assessment against the appellants, Reasbeck and Cusson, in the “Schedule of Assessment (1998 Improvements)” will therefore be eliminated.

• In the opinion of the Tribunal, the cost of the improvement project ought to be assessed at 1/3 for benefit and 2/3 for outlet since it is clear that the work of improvement is largely for the purpose of carrying away water that is now being artificially Drained from upstream lands.

• The engineer is directed to make adjustments in the estimate of the cost of the project and in the assessment schedule.

• Given the unusual method used by the engineer in calculating the assessment schedule, the cost of revising the report should not be charged to the Drainage project. Further, no more than $1,000 in engineering charges for preparation and attendance at this hearing may form part of the cost of the work.

ORDER OF THE TRIBUNAL

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

1. The appeal of Mr. Reasbeck is allowed because his lands are not Drained into the improvement section of the Drain. The $1,360 assessed against Lot 6, Con. 4 (V Reasbeck) in the “Schedule of Assessment (1998 Improvement)” is reduced to $0.00. Similarly, his assessment in the percentage table for this part of the work is also to be reduced to 0%.

2. The appeal of Mr. Cusson (part W part Lot 6, Con. 4) is allowed and the $9.850 assessment for the “Schedule of Assessment (1998 Improvement)” on this property is reduced to $0.00 and the assessment in the percentage table is to be eliminated. The work of channel improvement is to start at the head of the 1927 Drain (Station 1+500) and proceed upstream only.

3. The work of improvement provided for in the engineer’s report is not to be undertaken until the repair of the existing Drain has been completed and this is to be set out clearly in the engineer’s report.

4. The engineer’s report of August 1998 is referred back to him for further consideration under Section 57 of the Act. The engineer is to prepare an Estimate of Cost for repairing the entire length of the existing Drain, which is to include the cost of the physical work of restoring the channel to the dimension specified in this report and disposing of the materials, together with 35% of the engineer’s fees for his services up to the date of filing of Mr. Cusson’s appeal to the Tribunal. He will then prepare a “Schedule of Assessment (1927 Maintenance Profile)” assessing this Estimate of Cost and using the percentage assessments contained in the August 1998 report for maintenance. This Schedule that he is to prepare is to be set out in dollar amounts. Both the Estimate and the Schedule of Assessment are to be included in the engineer’s revised report. The engineer is also to prepare a Revised Estimate of Cost for improvement of the channel from Station 0+000 at Highway 34 downstream to Station 1+500 at the head of the existing Drain, which is to include the cost of the physical work and allowances as set out in his report dated August 1998 together with 65% of his fees for services up to the date of filing of Mr. Cusson’s appeal to the Tribunal. Also to be included in this revised estimate are the contingency estimate, the other administrative items set out in his 1998 report and the allowable part of the engineer’s fees in connection with the Tribunal hearing. He will then assess his Revised Estimate of Cost in a “Revised Schedule of Assessment for 1999 Improvements”.

5. The repair of the existing Drain from its head at Station 1+500 to its outlet may be carried out either as part of the project covered by the report and By-law or separately as a work of repair by the Township. In either situation, the 35% share of the engineer’s fee is to be included as part of the cost of the repair when calculating any grant.

6. The percentages in the assessments for maintenance of the 1927 Drain as shown in the August 1998 report are confirmed.

7. The allowances for Mr. Cusson for the improvement in the Drain in the amount of $1,790 is eliminated since no improvement work is being done on this property.

8. The assessments for the 1998 improvements to the Drain are to be recalculated using a division of 1/3 to benefit and 2/3 to outlet and using the proportions for benefit and outlet for each property in the schedule as modified by the Court of Revision after the assessment against the two appellants is set at $0.00.

9. The engineering cost for the modification of the report shall not form part of the cost charged to the maintenance of the Drain or the improvement project.

10. The fees of the engineer for preparation and attendance at the Tribunal hearing that are in excess of $1,000, shall not form part of the cost charged to the maintenance of the Drain or the improvement project.

11. When the engineer files his revised report the Township will deal with it as a new report under the provisions of the Act (see Section 57).

12. 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.

Dated at Tilbury, Ontario this 4^th day of February, 1999