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:

Short Drain, Branches A and B Township of Mariposa

Short Drain, Branches A and B (RE) 2000 ONAFRAAT 25

STATUTE:

Drainage Act

HEARING:

September 12, 2000

DATE OF DECISION:

October 6, 2000

2000-25

NEUTRAL CITATION:

2000 ONAFRAAT 25

Short Drain, Branches A and B Township of Mariposa

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 Agriculture, Food and Rural Affairs Appeal Tribunal by Doris Chidley, Evelyn Cleland, Murray Teel, Colin Campbell and Christopher Dale under Section 48 of the Drainage Act from the March 2000 report of T. M. Pridham on the Short Drain, Branches A and B, Township of Mariposa.

Before:

Andrew Osyany, Vice-Chair; Ed Mailloux, Vice-Chair; Denis O’Connor, Vice-Chair.

Appearances:

Ron Swain. Counsel to the respondent, the Township of Mariposa

Paul Courey for Evelyn Cleland, Murray Teel, Colin Campbell and W. Christopher Dale.

William Turville, on behalf of assessed owners Keith West, Dale McFeeters and Seldon Parker (Tampa Farms), John Yeomans

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Mariposa in Oakwood Ontario, on Tuesday September 12, 2000. Doris Chidley, Evelyn Cleland, Murray Teel, Colin Campbell and Christopher Dale appealed to the Agriculture Food and Rural Affairs Appeal Tribunal under Section 48 of the Drainage Act (the Act) from the March 2000 report of T. M. Pridham on the Short Drain, Branches A and B, Township of Mariposa.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the March 2000 engineer’s report on the Short Drain Branches A and B, Township of Mariposa parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Section 48 of the Act states:

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

On Friday September 8, 2000 Doris Chidley called the Tribunal office to inform the Tribunal that, due to family circumstances, she would not be able to attend the hearing nor could she send a representative to speak on her behalf.

On Friday September 8, 2000 Mr. Paul Courey, counsel for the appellants, filed with the Tribunal and the Township, but not the other parties to the hearing, a Notice of Motion requesting the hearing be adjourned until such time as the Township of Mariposa procures and processes a report under Section 78 of the Act concerning the Short Drain. The motion was brought on behalf of Colin Campbell and Christopher Dale.

The grounds for the motion were:

1. The report of Mr. Pridham for the improvement of the Branches of the Short Drain must, according to the provisions of the Drainage Act, provide for the discharge of the water from the Branch drains into a sufficient outlet.

2. The Short Drain itself has insufficient outlet and therefore cannot provide for sufficient outlet for the water from the Branch Drains.

3. The Report to be commissioned by the Township will, according to the Act, need to consider the sufficiency of the outlet of the main drain and address the insufficiency, only then will the Branches of the Short Drain have a sufficient outlet.

At the hearing the Tribunal dismissed the motion with reasons to follow. The reasons are set out in this decision.

The Tribunal Rules of Procedure provide that, except at a hearing, a motion date is to be obtained from the Tribunal before the notice of motion is served and that the notice of motion is to be served at least ten days prior to the hearing of the motion upon all the other parties to the appeal and any person to whom the Tribunal has directed notice be given. The motion in this case does not comply with the Rules of Procedure. The motion is clearly based upon the decision of the Drainage Referee, which is dated August 31, 2000. This did not allow enough time for the Campbell-Dale motion to comply with the Tribunal Rules of Procedure, but the motion certainly could have been brought earlier than on September 8, 2000. The motion is based on the affidavit of a legal assistant who deposed to rather bald statements which are based on advice that was received from Mr. Courey.

The Tribunal weighed a number of considerations in reaching the decision to dismiss the motion.

The Tribunal recognizes the importance of dealing with matters as a whole, and not on a piecemeal basis. An applicant needs to convince the Tribunal that it is in the interests of justice and the whole project that a matter be dealt with on a piecemeal basis.

This was not a simple adjournment request, due to the unavailability of the parties, etc. This motion required extensive findings by the Tribunal, full evidence about which would normally be brought out at the hearing itself. The Tribunal is not prepared to, in effect, pre-judge the evidence, based on the bald statements of the legal assistant, which are based on advice received from counsel for the applicants. There are facts in dispute, as appears from the comparison of the Engineer’s report and the legal assistant’s affidavit. The Tribunal is not prepared to resolve the conflict on the basis of the written material, nor is the Tribunal prepared to extend the ambit of the assertions in the applicant’s materials by making any assumptions or implications in the applicant’s favour.

The lack of time afforded to the other parties to respond to the motion is also something that the Tribunal has to consider.

In summary; the material was not good enough and was not presented soon enough to justify the granting of the motion to adjourn. Therefore the motion to adjourn was denied.

In regard to the costs of the motion, the Tribunal was advised that the Engineer spent some time on the weekend prior to the hearing, in preparation to responding to the motion, but no materials were actually filed on behalf of the Township. The Tribunal decided not to award any separate costs in regard to the motion.

The Background

The Short Drain Branches A and B are existing drains under the Act. The last report on these branches was in 1978 when they were repaired as part of the Short Drain Repair and Improvement 1978. The report under appeal was prepared pursuant to Section 4(1)(c), 76(1) and 78(1) of the Act. In 1998 the municipality began a work of maintenance on these branch drains but, after part of the work was done the project was stopped after deficiencies in the schedules of assessment governing the branches were noted. A request for a new report was submitted by D. McFeeters, Tampa Farms Ltd. and E. Yeomans. The report proposed the repair and improvement of the existing Branch A and B and a short extension of Branch B along the north side of Skyline Road. Virtually all of the excavation work was done in 1998 but the spoil was left as the material was unsuitable for spreading. The work involves 2,490 meters of open drain clean-out, hauling and disposal of existing and new spoil along 755 meters of Branch A and 450 meters of Branch B. The watershed comprises 273 hectares (675 acres) roughly half of which is cleared and used for agricultural purposes. Roughly 300 acres of land within the watershed is tile drained

The estimated cost of the work is $50,000.

The Issues

The issues raised in the notices of appeal are:

1. Are the benefits of the proposed work commensurate with the estimated cost of the work?

2. Should the work be modified by increasing the size of the sediment ponds proposed on the channel?

3. Are the allowances excessive?

The principal issue at the hearing was however the following:

4. Should the work be delayed until the report on the Main Branch of the Short Drain is completed?

The Evidence and the Findings

Mr. Tom Pridham, P. Eng., the engineer who prepared the report on the Short Drain Branches A and B outlined the work proposed in the report. The cost of the work is estimated at $50,000. He said that he divided Branch A into four sections and Branch B into two sections, divided the estimated cost of each section into statutory benefit (roughtly 55%) and outlet liability (roughly 45%) and assessed each in the normal manner. The cost of the access culvert was assessed separately. He said that since there were no appeals to the Court of Revision therefore there is no issue at the Tribunal on the assessments.

He pointed out that other than Mr. Dale, the appellants are all on the Short Drain downstream of the proposed work. He does not believe they are affected owners entitled to appeal the work.

Murray Teel, appellant, told the Tribunal that he owns 124 acres downstream of the proposed work. The water from these two branch drains flows into the Short Drain and then through his property. Since 1984 when the work was first done there have been four or five more projects in the watershed. He said every time work is done he receives more water. The projects have been a continual cost over the years. He told the Tribunal that the Short Drain through his property currently provides satisfactory drainage for his land. The drain does not flood him because of the depth and size of the channel. He also said that, since 1984, land in the Branch A and B watershed have been cleared of brush and tress and brought into production. He asked the Tribunal to impose a moratorium for a few years to allow everyone to adjust to the current situation and determine if additional work is desirable.

In response to questions Mr. Teel said that:

• The allowances are excessive, but he did not suggest a figure to be used.

• Deepening the drain makes water come faster onto his property. The same water only faster.

• He has no objection to the general aspects of the work other than who pays the compensation and administrative costs, that is all the ratepayers in the municipality.

• The Short drain is working well now.

Morris Cleland, spoke on behalf of Evelyn Cleland, appellant. Mr. Cleland told the Tribunal that he and his wife own the land at the outlet of the Short Drain Branches A and B. His concern is the silt that construction brings down the branches to the Short Drain on his property. He told the Tribunal that the silt control proposed in the report will control the siltation to his satisfaction.

Colin Campbell, appellant, told the Tribunal that he owns the S. E. ¼ of Lot 14 and all of lot 15 Concession 12 Mariposa, and has lived on that farm all his life. He has 227 acres in total. There are two drains on his land, the Short Drain and the 2A drain. At the present time parts of the land are adequately drained but the farm floods. He said that every time work is done on the channel upstream of him his land receives more water. In particular he told the Tribunal that the flooding of his land has gotten worse since 1994. Some of his tile outlets are now under water.

He said that the 1978 report on the Short Drain written by Howard Gibson originally proposed to carry the drain further downstream than his land. However, he brought to Mr. Gibson’s attention that Mr. Chidley, the downstream owner, held damming rights on the channel. If the dam was constructed the water would back up into the Short Drain on his land. The proposed work downstream of his land was not done.

He said that the road culvert at the outlet of the Short Drain Branch A and B is silted and needs to be cleaned. He has hired Ed Dries, an experienced drainage engineer from Chatham to look at the proposed project on his behalf. He told the Tribunal that Mr. Dries had found that the Branch drains downstream of the road culvert were below the grade in the Gibson report and no work was necessary downstream of the road.

In response to questions Mr. Campbell said:

• The increase in agricultural production has not covered the cost of the work done so far.

• The Branch A and B Drains drained land that was once swampy and is now in production, however the issue is whether it is more profitable to drain, clear and crop the land or leave it in swamp.

• Except for one year the drain on his property has always had water in it.

Mrs. Mary Dale spoke on behalf of the appellant William Christopher Dale. Mr. Dale was ill in hospital and could not attend the hearing. Mrs. Dale told the Tribunal that she and her husband own the S ½ Lot 10, Concession 10 between Skyline Road and Whiterock Road and they live on Quaker Road. She said the basis of their concern is that the water from their land cannot get to the drain. There is no culvert under the road to allow the water to pass.

In response to questions Mrs. Dale said that she has not looked for a culvert herself but has been told by others that no culvert exists.

Carl King told the Tribunal that he is not an assessed owner and he does not own land in this watershed. However he assisted Mr. Dries in his survey and he went to the Dale farm to try to find a culvert under the road. He said there are about twelve acres or so of the Dale land that drains toward the Short Drain Branches A and B, however there is no culvert under the road to allow the water to cross the road and enter the drain.

Seldon Parker, president Tampa Farms Limited, assessed owner told the Tribunal that he went to the Dale farm on Sunday September 10, 2000 and took photographs of the culvert under the road that allows water from the Dale property to flow to the Short Drain Branches A and B. He filed these photos with the Tribunal. The photos show the stop sign on Skyline Road and a culvert under Whiterock Road about 80 feet north of the intersection with Skyline.

In response to questions Mr. Parker told the Tribunal that:

• Tampa farms own 99 acres in the watershed of the Short Drain Branches A and B and has since 1985.

• In 1985 58 to 60 acres of this land was cash cropped and presently 85 acres are cropped.

• The land was tiled in 1993 or 1994 into the existing outlet ditch.

• The road ditch has been improved along Skyline and connected to Branch B thus bringing more water.

• If the report under appeal is passed and the work is done he will not be able to install any more tile on his land but he could drain another 15 acres if the drain were deeper.

• To his knowledge all of the excavation work proposed on his land has been done, the spoil just needs to be hauled.

• These drains have only been dry once that he can remember.

In his reply evidence Mr. Pridham told the Tribunal:

• The report provides for an allowance to municipality for work already completed by the Road Authority on Skyline Road. The allowance is in line with the cost incurred for the work.

• It is his professional opinion that the work will have no adverse impact on downstream owners and no additional injury will be created by this work.

• He has observed water flowing from the Dale property though the culvert under the road toward the McFeeters property, then down the road ditch to the Short Drain Branches.

• He has prepared a cost vs. benefit analysis in order to respond to the allegation that the work is not cost beneficial but since no evidence of this complaint has been filed by the appellants there is no need to respond to this portion of the appeal.

• While the outlet to the Short Drain may be impaired the Short Drain does provide sufficient outlet for the Short Drain Branches A and B in his professional opinion.

• He does not know the condition of the Short Drain Branches A and B prior to the maintenance work done in 1998 and therefore he does not know if the shale rock debris now found in the spoil pile was sloughed in from the sides of the drain or where it came from.

• In his opinion the term sufficient outlet is used to determine if there is any need to pay an allowance for insufficient outlet. In determining the allowance he would only consider damages above and beyond what is occurring now.

• In his opinion, sufficient outlet is the point where water can be discharged without impact downstream.

• The watershed shown in the report is correct.

• The design grade line in the report provides a foot of freeboard for the existing tile outlets.

• The basis for the conclusion that the proposed work will have no measurable affect at the Campbell property is the fact that Mr. Campbell’s property receives the water from a watershed of 10,500 acres. The watershed of the Branch A and B drains is 645 acres. The Referee has ordered a new report and repair to the 1978 gradeline to the outlet of Branch A. The minor work proposed coupled with the small portion of the watershed affected leads him to conclude that the work will have no affect downstream.

• He told Mr. Campbell early on that if he disagreed with this engineering conclusion, then Mr. Campbell should bring credible professional evidence to support his claim that this work would impact adversely on the Campbell lands.

• He spent extra preparation time preparing for the hearing because he did not have the benefit of appellant statements to focus the hearing.

In his final submissions Mr. Courey urged the Tribunal to find that the Short Drain did not provide a sufficient outlet for the Short Drain Branches A and B at this point in time. He argued that the project should be held in abeyance pending the completion of the report ordered by the Referee on the Short Drain. He said if that report finds that the Short Drain does not provide sufficient outlet and the Branch A and B drains are improved now it could result in complications for the municipality and the landowners. He asked for an order holding up construction as well as an order adjusting the assessments on the Dale property.

In his final submissions Mr. Swain pointed out that no one had appealed to the Court of Revision so there is no appeal on assessment for the Tribunal to decide. He said there were three parts to the appeal namely:

1. Benefits are not commensurate with the cost. He said there was no evidence on this ground provided at the hearing and these appeals should be dismissed.

2. The proposed work should be modified. He said that the only modification talked about at the hearing was the sedimentation issue on the Cleland property and Mr. Cleland had agreed that the work as proposed satisfied his concerns. These appeals should also be dismissed,

3. The compensation provided is excessive or inadequate. Mrs. Dale was the only one who provided evidence on this issue and her complaint related to the supposed lack of a culvert under Whiterock Road. This culvert exists as proven by the photographs. The appeals under this head should also be dismissed.

Mr. Swain asked the Tribunal to dismiss the appeals and provide an award of costs. He said that the appellants, other than Mr. Dale, were outside the watershed of the proposed work, were not affected by the work and therefore not entitled to appeal to the Tribunal. He said that Mr. Pridham has incurred costs of $3,500 in preparation for the hearing, and his own fee will be in the order of $2,000. He said that the owners who are in the watershed have asked that certain works be done which, by the report, will not affect downstream owners. Those in the watershed pay the cost and they are being held up by people who are taking action that is akin to obstructionism. They should not cause the hearing and then walk away without paying at least a portion of the cost that they caused. He told the Tribunal that Mr. Campbell had been informed by the municipality that he should provide hard evidence that his property is affected by the work. Even with this knowledge Mr. Campbell failed to provide any evidence at the hearing.

In his final submissions Mr. Turville told the Tribunal that the proposed work was merely housekeeping. There should be no damages or compensation paid to Mr. Campbell as no additional water would flow in the Short Drain and no additional damages to his land would result from the work. He said that he represents 47% of the assessed owners. His clients want to get on with the business of farming. Those who appealed only want to stop the project. They brought no solid evidence and made a lot of people incur a lot of cost. He asked for $2500 in costs for his clients.

The Tribunal asked for submissions from counsel on the issue of whether the appellants (other than Mr. Dale) come within the wording of s. 48, which defines who can appeal: “Any owner of land or any public utility affected by a drainage works”. All three counsel told the Tribunal that they had no specific jurisprudence to point to on the issue of how an “affected” person should be defined. Mr. Turville directed the Tribunal to Proctor’s book on drainage cases which discussed the definition of “owners”, etc. in the context of the drainage laws at the turn of the 1900’s.

The Tribunal examined the evidence. Since the decision of the Referee was referred to several times during the hearing it is deemed appropriate to set out the essential parts of that order. The order of the Referee dated August 31, 2000 provides:

• That the Township of Mariposa be restrained from undertaking any maintenance on the Short Drain other than maintenance commencing at Station 160+00 up to Station 69+50 which maintenance shall not lower the grade below that as defined in the H. G. Gibson Report dated May of 1978. The cost of all such maintenance work shall be paid as in the normal course by upstream owners.

• That the Township of Mariposa appoint a Drainage Engineer pursuant to Section 78 of the Drainage Act R.S.O. 1990, Chapter D 17 to prepare a Report for the maintenance and improvement of the Short Municipal Drain, including the preparation of a new maintenance schedule., All regular procedures as provided in the Drainage Act shall be adhered to.

• That legal costs be awarded to the Applicant fixed in the sum of $3,000.00 payable forthwith by the Respondent Municipality but recoverable by the Respondent Municipality as part of the cost of the preparation of the new Report.

The Tribunal examined the report of Mr. Dries. It would have been helpful if Mr. Dries had been available to be questioned on his report but since he was not there the Tribunal accepted the evidence based on a plain reading of the report. The Tribunal is unable to find in the report anything which says that Mr. Dries is of the opinion that the Short Drain was not taken to a sufficient outlet in 1978 nor does the report say that the Short Drain does not provide a sufficient outlet for the Short Drain Branches A and B. The evidence of Mr. Pridham, a professional engineer with many years of experience in the field, is that the Short Drain does provide a sufficient outlet for the proposed work. The Tribunal agrees with Mr. Pridham that the work covered in the report is of a minor nature. If, as Mr. Courey suggests, the report on the Short Drain finds that the Short Drain outlet needs improvement or an allowance should be paid for insufficient outlet, then the land in the watershed of the Short Drain Branches A and B will be in no different situation after the proposed work than it is in today’s conditions. The Tribunal rejects the proposition that the work on the branch drains ought to be held in abeyance pending implementation of a report not yet commissioned on the main drain.

The Tribunal agrees with Mr. Swain’s submissions on the appeals. The appellants brought no cogent evidence to the hearing to support their contention that the work was not cost beneficial, that the allowances were excessive or that the work should be modified. The Tribunal dismisses these appeals.

Were these appeals properly brought by downstream owners? It was clear from the evidence that some of the appellants were a very long way downstream from the watershed of the A and B Branches of the Short Drain. This is shown on Exhibit 6, a reduced copy of which is attached to this decision. Exhibit 6 shows the watershed plan of the entire Short Drain. The watershed for Branches A and B is highlighted. The names of the appellants are also highlighed.

The wording of Section 48 “Any owner of land or any public utility afected by a drainage works” appears to imply a financial connection to the project. It is clear that a long-term tenant would be affected by the project, but a long term tenant is not given a right to appeal. On the other hand, if a substantial connection to the proposed work can be shown by a downstream owner, then it appears that under some conditions the downstream owner should be able to appeal to the Tribunal. There are obviously restrictions on this; for instance, the issue of compensation or allowances should not be open to challenge by a person who is not assessed in the report.

It appears to the Tribunal that downstream from the area covered by the report an owner must demonstrate a substantial connection to the proposed work in order to come within the definition of “affected owner”. It is not enough to say: I am downstream, therefore I am affected. The burden is on the owner to demonstrate the substantial connection.

When an appeal is filed by a downstream owner, the Tribunal will accept the appeal as an adminstrative action. However, any of the assessed owners or the Municipality would be at liberty to bring a timely motion to have the appeal dismissed on the grounds that the appeal is a nullity, and the Tribunal would make a determination on that point. It is unlikely that a motion brought at the last minute would be successful.

In this case, the downstream owners did not bring evidence to satisfy the Tribunal that they are “affected owners” within the intent of s. 48.

However, even in cases where downstream owners are properly before the Tribunal, the issue of costs arises. In the usual course the assessed owners bear the costs of the entire project, including the costs of appeals to the Tribunal. It is not appropriate that non-assessed parties (successful or not) should cause an expense to the project without participating in some of the expense. The engineer’s report defines the drainage community in which rights and obligations are shared and an appellant from the outside, in effect coming into this community, should share in the costs. In this instance the Tribunal does not need to consider to what extent successful appellants should share in the costs, sinc in this case all of the appeals are being dismissed.

All of the appellants signed a very similar notice of appeal. Except for Doris Chidley they were represented by able counsel at the hearing. They had been informed by the municipality that their position that the drain was not taken to a sufficient outlet would be contested at the hearing and they should be prepared to bring expert or “hard” evidence in support of their contentions.

The Tribunal procedure is that appellants are requested to file an appellant statement. Appellant statements are not designed to restrict appellants evidence or arguments but are to assist in the conduct of the hearing and thereby reduce the costs to all parties. When there is no appellant statement, the engineer must prepare for all issues raised in the notice of appeal. In this case only one appellant provided an appellant statement to assist the municipality in preparing for the hearing.

The appellants had no tenable case on the issues specified in the notices of appeal. The Tribunal agrees that the main thrust of the appellants arguments’ and evidence was to obstruct the municipality, delay and hopefully prevent the work. In doing so the appellants caused considerable additional costs to be incurred.

Branches A & B of the Short Drain are established, existing municipal drains. The municipality has a statutory duty to maintain them. In this case the maintenance could only be done by way of a report. Stripped to its essentials, the appellants were attempting to prevent the municipality from performing its statutory duty of maintaining these municipal drains.

The Tribunal notes that the Chidley appeal was withdrawn on September 8, 2000, only four days before the hearing. The withdrawal of the appeal at such a late date does not eliminate but does reduce the cost exposure. The Tribunal is not in a position to make any other distinctions among the remaining appellants.

Sometimes even unsuccessful appeal provide some benefit to the project and the Tribunal takes that into account in considering cost awards. In this case the appeals have brought no benefit to the project.

The Tribunal agrees with Mr. Courey’s submissions that no costs should be awarded to Mr. Turville’s clients. This is because the Township was adequately representing the interests of the proponents of the work. In regard to the engineering and legal costs of the Township for the appeal, the Tribunal accepts the estimates of $3,500 for engineering work and $2,500 for legal representation to cover the costs of preparation and attendance at the hearing. The Tribunal also notes that the wording of s. 98 of the Act appears broad enough to provide for an award of costs in respect of the Tribunal’s costs.

The Tribunal is of the view that justice would be done in this case if the sum of $4,000 was recovered from the appellants.

The Tribunal has on many occasions commented on the detail that should be provided in engineers’ reports in regard to the method of calculating allowances and assessing the costs of the project. In this case the engineer has done an exemplary job of dealing with the assessment of costs of the project and the Tribunal compliments him on it.

ORDER OF THE TRIBUNAL

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

1. The appeals by Doris Chidley, Evelyn Cleland, Murray Teel, Colin Campbell and Christopher Dale under Section 48 of the Drainage Act from the March 2000 report of T. M. Pridham on the Short Drain, Branches A and B, Township of Mariposa are dismissed.

2. The Tribunal assesses the appellant Doris Chidley $400.00 in costs to partially offset the costs of this appeal. This $400.00 to be paid to the Township of Mariposa 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 $400.00 to the taxes in arrears on Roll number 40-121-00 Part lot 20 Reg. Plan 57R1420 parts 1 & 2, and Reg. Plan 57R2730 Part 3, Concession 12 (Chidley) . This $400.00 is not to be considered eligible for grants.

3. The Tribunal assesses the appellant Evelyn Cleland $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll Number 40-031-00 S. Part Lot 11, Concession 11 (Cleland). This $900.00 is not to be considered eligible for grants.

4. The Tribunal assesses the appellant Murray Teel $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-034-00, Part lot 11 and Part lot 12 Concession 11 (Teel). This $900.00 is not to be considered eligible for grants.

5. The Tribunal assesses the appellant Colin Campbell $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-111-00, Part Lot 15 Concession 12 (Campbell). This $900.00 is not to be considered eligible for grants.

6. The Tribunal assesses the appellant Christopher Dale $900.00 in costs to partially offset the costs of this appeal. This $900.00 to be paid to the Township of Mariposa 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 $900.00 to the taxes in arrears on Roll number 40-121-00, Part Lot 10 Concession 10 (Dale). This $900.00 is not to be considered eligible for grants.

7. 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 reasons for these decisions are:

1. The appeallants failed to bring cogent evidence before the Tribunal on any of the issues in the appeal.

2. The principal purpose of the appeal was to prevent the municipality from performing its statutory duty of maintaing municipal drains.

Dated at Shelburne, Ontario this 6th day of October, 2000