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:

Bourdeau Municipal Drain Corporation of the Nation Municipality

Bourdeau Municipal Drain (RE) 2000 ONAFRAAT 31

STATUTE:

Drainage Act

HEARING:

November 22, 2000

DATE OF DECISION:

December 15, 2000

2000-31

NEUTRAL CITATION:

2000 ONAFRAAT 31

Bourdeau Municipal Drain Corporation of the Nation Municipality

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 Jean-Claude Pavan, Raymond and Raphael Gour, Royal Bourdeau and René Giroux under Section 54 of the Drainage Act, and by Royal Bourdeau under Section 48 of the Drainage Act, from the decision of the Court of Revision and the Engineer’s Report on the Bourdeau Municipal Drain in the Corporation of the Nation Municipality.

Before:

James Rickard, Chair John Taylor, Vice-Chair Jack Young, Vice-Chair Gertrude Levac, Member

Appearances:

Jean Martel representing Royal Bourdeau and René Giroux, Jean-Claude Pavan, Ralph (Rapheal) Gour, Royal Bourdeau, René Giroux, appellants Barry Harwood, Claude Bourque, David Laurence, assessed landowners

Stéphane Leclerc, P. Eng., on behalf of the respondent, the Nation Municipality

Neil Levac, P. Eng., on behalf of the respondent, the Nation Municipality

Denis Pommainville, former Reeve of the municipality

DECISION OF THE TRIBUNAL

This appeal was heard in Casselman, Ontario on November 22, 2000. Jean-Claude Pavan, René Giroux and Raphael and Raymond Bour appealed to the Tribunal under Section 54 of the Drainage Act. Royal Bourdeau appealed under Section 48 and Section 54 of the Drainage Act.

Section 54 of the Act states:

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.

54(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.

54(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.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the November 1999 engineer’s report on the Bourdeau Municipal Drain, Municipality of the Nation▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The Bourdeau Municipal Drain was constructed as a result of a February 1965 report by Stidwill and Associates. At the time of construction its main purpose was to drain farmland. In the early 1980’s, a portion of the farmland served by the drain was subdivided into lots and houses and roads were constructed to connect the subdivision with the existing village of Limoges. The drain was re-routed at that time, on the advice of the engineer of the subdivision developer.

At the time of the Hearing, the drain started at the north limit of the Bourdeau subdivision at the intersection of Bourdeau Blvd. and Dolores Street, and ran in a southerly direction along the east side of Bourdeau Blvd. for approximately 900 feet. It then turned and ran southwest through the east side of Lot 30, and then south under Ottawa Street, the Canadian National Railway and Herbert Street through the Village of Limoges. Its outlet was between Herbert Street and Mabel Street. From there, water found its own way to Indian Creek.

There are 51.7 acres in the watershed. The length of the drain is 3,400 feet.

Mr. Leclerc testified that Levac Engineering was retained by the municipality to update the assessments, due to the lot division, and determine what maintenance was required on the drain.

He reported that a preliminary report was presented in October 1999 and that there were questions regarding the delineation of the watershed. This was confirmed and a final engineer’s report was submitted in November 1999. The report called for cleaning of the drain, re-grading two culverts (on properties identified by Roll Nos. 02-076-36 and 02-076-38), replacing a collapsed culvert near Herbert Street, and the replacement of the headwall at the outlet.

The Issue

There are two issues before the Tribunal:

1. Are the assessments in the Assessment Schedule, Bourdeau Municipal Drain/Update as per Court of Revision Order, June 14, 2000 appropriate?

2. Should the drainage works described in the November 1999 engineer’s report be modified?

Preliminary Matter Mr. Martel moved for an adjournment as he had only recently been retained and as there was a possibility that the newly elected Council of the municipality would wish to abandon the municipal drain. Several other parties objected to the postponement and Mr. Martel agreed that the matter should proceed and withdrew his request for adjournment.

The Evidence and the Findings

Appellants’ Statements:

1. Mr. Pavan stated that he had recently re-paved his driveway and that his contractor, on advice of municipal engineers, lowered the culvert 2 inches. He stated that his contractor was told that all the culverts were to be lowered, but that he now understood that this was not the case. He complained that the report was too complex and he observed that the municipality made all these changes to the drain, therefore he felt the municipality should pay for them. He noted the modifications were not authorized under the Act as no petition was signed by landowners.

Under questioning he confirmed that his assessment is $286.04 (outlet and benefit) and that he believes the municipality should pay the full amount, using general tax revenues. In his opinion, the municipality had neglected the drain and this led to the current problems. It was pointed out that a petition is only required when there is a new drain established; once established, a drain can be repaired or improved at the request of landowners or the municipality. It was also pointed out that Section 3 of the Drainage Act did not apply to this drain.

2. Mr. Royal Bourdeau stated that he had lived in the area the longest and was the original owner of the land that has been subdivided. He stated that he owned properties identified by Roll Nos.

02-076-00 and 02-076-32. He noted that he had owned the property identified by Roll No.

02-076-78 but that it was sold the previous year. Mr. Bourdeau explained that he was one of the original petitioners for the drain and that the property was farmed at the time, but was converted to a subdivision between 1978 and 1983. The streets and ditches were sold to the municipality. Mr. Bourdeau also pointed out that he and Mr. Giroux had subsequently dug a ditch from Dolores street running north to the first concession, and that he had also dug a ditch that runs along the Bourdeau-Gour property line.

Mr. Bourdeau was of the opinion that the municipality had purchased the Bourdeau drain when it bought the roads and ditches. It was his understanding that municipal drains are those that run through farmland. He pointed out that most of the watershed was now a subdivision. He noted that there had only been flooding once on his property, and that was after a torrential downpour. He stated that his property drains onto Ottawa Street which empties into a municipal sewer system. He also raised a concern about the municipality allowing people to construct buildings over the drain.

Mr. Leclerc, the engineer, questioned whether there were any buildings on top of the drain. Mr. Bourdeau felt the buildings were near to the drain, if not on top of it. Mr. Bourdeau acknowledged that a beaver dam was blocking the Dolores Street-Concession 1 ditch. It was also determined that the subdivision was registered but that there was no drainage agreement on the subdivision.

In response to questions from the Tribunal, Mr. Bourdeau suggested that the municipality should pay for repairs to the drain. He was particularly opposed to paying an assessment for his undeveloped bush land which he felt contributed very little water to the drain. He was less opposed to paying some assessment for his residential property.

3. Mr. Giroux testified that he bought his property in 1975 (Roll No. 02-071-00) and that his residence is on the small part that fronts on Ottawa Street. Behind his house he owns a large amount of bush land. He confirmed that a private ditch running from Dolores Street to Concession 1 was dug between his property and the Bourdeau property. In his opinion most of his land drains to Concession 1. He also stated that he dug two small ditches when he built his house. He noted that in 1998 there was an exceptional rainfall and everyone had flooding; but normally there was no flooding on his property.

Mr. Giroux testified that a culvert that was part of the drainage works running through a property owned by Mr. Leroux (Roll No. 02-082-10) was damaged and that Mr. Leroux was going to sue but the municipality fixed it all at their cost.

Mr. Giroux submitted into evidence a map and several photographs of the drainage works. He pointed out a ditch running parallel to Concession 1, which he indicated the municipality had built in 1994 to provide drainage to another project. He stated it then built a ditch to carry water from Claude Street to Limoges Road. He stated that water from Limoges Road and Concession 1 travels alongside the railway to a branch of Indian Creek. The ditch is built on both sides of the road; an old municipal drain that was there is now gone. He stated that he did not believe that his water could all drain into the Bourdeau drain, as there was only one 18 inch culvert to allow his water into the Bourdeau drain. In his view, the properties upstream of the back of the Ottawa Street properties, and the first three properties at that end of Bourdeau Blvd. no longer drain into the Bourdeau drain. He felt that most of his property drained into Indian Creek through the Concession 1 drain.

In response to questions, Mr. Giroux indicated that the proposed work would not improve his drainage. He did not want any of his property assessed for this work, but acknowledged that four or five acres could contribute water to the Bourdeau drain, as it could enter the drain via the Royal Court culvert and the Ottawa Street ditch.

In response to questions, Mr. Giroux indicated that Herbert Street was developed by two different developers and that he believed they obtained permits to fill in the drain and build over it. He also noted that he had never farmed his land since he bought it in 1975, and that he believed it was zoned as residential in 1979. He stated that there is a little stream 4 or 5 inches deep that flows north from his land and that the ditch dug in 1984 from Dolores Street to Concession 1 is still functioning well. He felt that Bourque St must drain to Limoges Road. He stated that he has never seen water flow in that area, but that it must go there as there is nowhere else to for it to go. Through the Chair, Mr. Mark Moynes, assessed landowner, questioned how water could flow that way when he has seen it flow the other way. Mr. Giroux reiterated that he had not actually seen water flow in that area.

4. Mr. Gour indicated he was representing himself and his cousin Raymond Gour and that they owned the property behind the subdivision (Roll No. 02-057-00) and a lot identified by Roll No. 02-076-03. He noted this was bush land and that it was his view that the water could not go anywhere for most of it, but that some drains out the back of the property into a river. He felt that if the municipality was going to allow people to relocate the Bourdeau Drain, it should pay the costs. He did not believe he should be made to pay for the municipality’s mistakes. He stated that he never knew the drain existed until the engineer’s report was commissioned.

In response to questions, Mr. Gour stated that the property had been in his family’s hands for over 40 years. He noted that his father was one of the original petitioners and that the original drain did clear up the water at the time. He stated that in the mid-1980’s he and Mr. Bourdeau installed the line property ditch that is now filled in with a beaver dam. He stated that he has assessments on two properties and that neither one is acceptable. He stated that his residential lot does not have a drainage problem as the land is high enough. He stated that he has a culvert providing street access to the property and that the municipality had approved its design before it was installed.

Intervenors’ Statements:

1. Mr. Harwood, owner of the property identified by Roll No. 02-099-04, indicated that he was one of two landowners affected by the proposed replacement of a collapsed culvert. He said it had been explained to him that his assessment was very low because the benefit to his property is minimal. He expressed a concern that the storm drain on Herbert Street has caved in and that the culvert is blocking up because the pieces of storm drain are being washed into it. He understood that this storm drain was not part of the Bourdeau drain but he stated that the storm drains on Herbert Street and Ottawa Street needed to be repaired and that he felt the municipality should look at the whole problem. He noted that the drain is not under his driveway; it is at the front of his property.

Mr. Harwood stated that he did not know why the open ditch drain was converted to a culvert in the past, but he understood that the municipality made some errors and he felt that they should have to pay more, though not the total cost of the project. He reported that at the time of the 1998 flooding, there had been a very heavy rainfall for about 16 hours. He observed the flow of water at that time and noted that the water almost flowed over from Herbert Street, but that it went under Mabel Street to Depin, the lowest spot in the village. He felt the engineer should have looked more closely at the outlet to make sure that the problem is not further south.

In response to questions, Mr. Harwood agreed that the Bourdeau drain did not reach Mabel Street but that it drained into another drain on Mabel Street. He stated that the main reason he attended the hearing was to see that he was not over-charged. He stated that he receives no benefit from the drain. He stated that his house is approximately 27 years old and that the drain was there first. Mr. Harwood felt a large part of the collapsed culvert was on his property. He indicated that he would not like the municipality to replace it with an open ditch, as he felt that could cause structural damage to his house. He did not agree that he gets a special benefit from having a closed drain through his property. He did not agree that it would be fair to have half the cost of repairing the culvert assessed to him.

2. Mr. Bourque, owner of the property identified by Roll No. 002-058-26 stated that his property should be excluded from the watershed. He explained that an engineer had installed a ditch at the back of his property to drain it to Limoges Road. This depth of this ditch varied from 3 feet deep to 1.5 feet deep, with the lower end at the road. Mr. Bourque reported that he had seen water flowing to the road. He also observed that there are some properties on Bourque Street that drain north to Concession 1 and that water from the street flows both ways.

In response to a question as to why he waited a year before bringing forward this information, Mr. Bourque indicated that the process was confusing and drawn out. Mr. Bourque also suggested that since the Bourdeau drain had been re-located, it no longer existed as a municipal drain.

3. Mr. Laurence, owner of 105 Bourdeau Street (Roll No. 002-076-01), indicated he had lived in the village 30 years and had never heard any reference to Bourdeau drain until the flood of 1998. He noted that the drain runs along his property line on two sides of the lot, like a moat. He said he examined the drain with the Drainage Superintendent and that he thinks the railway culvert is too small. He said he would have allowed the drain to be relocated in a straight line through his property, but that he was told that he would have to pay for this work himself. It was his view that the municipality should pay. He stated that there is a problem with well water in the Village of Limoges, due to vegetation in the drain contaminating the water. He noted that water lies in the ditch next to his property year round.

In response to questioning, Mr. Laurence indicated he would be prepared to pay for a portion of the cost of installing a culvert to route the drain directly across his property.

4. Mr. Pommainville, a former reeve, testified that he wanted to clarify a few points that had been raised by the appellants and intervenors. He indicated that at the time the houses along the Bourdeau drain were built, it was relatively easy to obtain building permits. He said that different developers had filled in part of the municipal drain with culverts, with or without the municipality’s consent.

Mr. Pommainville reported that in April 1997 there was a threat to the structural stability of a house on Ottawa Street, due to a big flood. Because of the urgency of the situation, the municipality fixed the problem within three or four days and the municipality paid the full amount of the repair. He stated that the municipality was concerned that it might be sued otherwise. He also testified that in the early 1990’s, there was a problem with erosion on the Laurence property. At that time, the municipality and three owners paid to put a 90º turn in the drain and install rip rap.

Mr. Pommainville also indicated that the possible abandonment of the drain had been discussed in the past.

Engineers’ Statements

The engineer Mr. Leclerc stated that the watershed draining to the Bourdeau Drain is as described in his plans. He testified that he had surveyed the drain and observed water flow in the drain. He indicated that if there was water draining to Concession 1 from some of the roadside ditches, then it is due to silting as they were designed to drain forward to the Bourdeau Drain. Mr. Leclerc stressed that the engineers were not hired to determine what was done correctly or incorrectly in the past.

With regard to potential problems downstream of the outlet, Mr. Leclerc indicated that he had looked into the problems, that the area has now been cleaned up by the municipality, and that he had determined the culvert size was sufficient.

In response to questions, Mr. Leclerc indicated that a site meeting had been held and that landowners with properties adjacent to the drain were notified of the meeting. He indicated that the option of re-routing the drain through Mr. Laurence’s property had been considered but it was felt that the cost was too high. He confirmed that he had seen photographs that indicated that some ponding from the beaver dam was flowing into the watershed. Mr. Leclerc testified that roadways were being assessed on the basis of surface area and location, relative to the drain. He indicated that no run-off coefficients had been used to calculate different rates of run-off from roadways, residential lots and bushland. Mr. Levac stated that the residential lots were all one acre lots, with some natural retention and septic on site. It was his view that the drainage coefficient from these properties would be closer to the bush coefficient than most residential lots.

Both engineers testified that it was not their role to consider the abandonment of the drain, but that they did not believe it would be advisable at this time. Mr. Leclerc pointed out that cleaning and maintenance of the drain would be more difficult if the municipality did not have access to it. Mr. Levac noted that the Bourdeau Drain was the only reasonable outlet for the Gour property, and that this property may be developed in the future. He also suggested that it would not be equitable to abandon only the Bourdeau Blvd. portion of the drain as the landowners on this road were contributing water to the drain.

In response to a question with regard to the Harwood property, Mr. Leclerc stated that the assessment was based on two factors – the area of land drained and the position of the drain. He calculated the Harwood property was 0.3 acres and utilized 5% of the length of the drain. He indicated it was not his practice to assign a special benefit cost for maintenance of existing culverts; he assigns special benefit costs when new culverts are installed. Mr. Leclerc indicated that he had not undertaken camera work to determine exactly how much of the culvert needed to be replaced before finalizing his report, as the municipality had agreed it would pay for the replacement of the culvert.

Mr. Leclerc confirmed that he was confident in his assessment of the watershed boundaries and that he had visually observed water flow as well as surveying with a level. He also confirmed his analysis of water flow in the channels linking Dolores Street to the Concession 1 ditch. He acknowledged that there was an open channel right beside the edge of the watershed, but testified that water flowed east toward the Bourdeau Drain. He indicated that the engineers had depended upon observations made at the site to reach their conclusions.

With regard to the Bourque property, Mr. Leclerc indicated that he had seen an open channel on the property and that visual inspection was used to determine the part of the property that drains to the east and the part that drains to the west. With regard to the Giroux property, Mr. Levac testified that some water at the south end of the property drains to Ottawa Street and into the storm sewer; some drains towards Royal Court and some drains toward Limoges Street. He suggested that part of the land probably uses approximately 90% of drain; but that the part entering the drain via Ottawa Street only uses 25% of the drain.

In response to questions, Mr. Levac agreed that most of what the engineers did in the report was fix changes that should have been done when the subdivision was developed. He agreed there was an increased administrative cost related to the expansion of the number of properties assessed. He also agreed that if the report were to be approved, then the culvert on the Harwood property would become part of the drain. He did not agree that Mr. Harwood received a special benefit from the culvert as it was an existing culvert, therefore there was no benefit. He noted that the municipality’s policy with regard to this drain was that the first culvert is put in at the landowner’s expense, but the municipality paid for any repairs that were required.

Final Summations

Mr. Martel stated that he was satisfied that the issues had been raised. He did not have a specific recommendation as to how the assessment schedule should be adjusted but said he believed the report should be modified to address the concerns that had been raised. He stated he was not asking that his clients’ assessments be eliminated, but that they should be reduced. Mr. Gour suggested that it would be fair to charge everyone in the watershed $25/year to clean the ditch. Mr. Pavan indicated that he had made his points earlier.

Mr. Leclerc stated that he felt that there had been a good point raised with regard to using different run-off coefficients for different types of land. He said that he did not agree that individual landowners receive special benefits when existing culverts are repaired. He submitted that using the outlet liability schedule was the fairest method to assess the future cost of maintenance of culverts. Mr. Levac stated that he agreed that a minimum assessment to all landowners would be fair. He pointed out that culverts along the drain will likely need to be replaced with larger ones at some point, due to the development of large properties adjacent to the subdivision. He noted that those properties would have to pay for this expansion.

ORDER OF THE TRIBUNAL

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

1. The engineer is directed to reduce the outlet liability to the Gour Property (Roll No. 02-057-00) to $270.04.

2. The engineer is directed to reduce the outlet liability to the Bourdeau property (Roll No. 02-076-00) to $136.61 and to reduce the benefit liability to this property to $241.13. The total liability assessment to this property will be $377.74.

3. The engineer is directed to reduce the outlet liability to the Giroux property (Roll No. 02-071-00) to $407.45.

4. The outlet liability assessments on each of the roads listed in the Assessment Table for the Bourdeau Municipal Drain (Update as per Court of Revision Order, June 14, 2000) are to be increased as set out in the table below:

Road

Outlet Liability

Benefit Liability

Total Liability

Claude Street $26.48 $26.48

Bourque Street $57.53 $57.53

Main Street $74.18 $74.18

Ottawa Street $246.77 $246.77

Bourdeau Avenue $372.41 $1,682.30 $2,054,71

Herbert Street $80.23 $7,600.00 $7,680.23

County Road 5 $361.86 $361.86

5. The engineer is directed to adjust the assessments of each property listed in the Assessment Table for the Bourdeau Municipal Drain (Update as per Court of Revision Order, June 14, 2000) to which a roll number has been assigned and to which the total liability is less than $50.00, such that :

• the total liability for each of these properties is $50.00;
• the increases in assessments are added to the outlet liability of these properties.

6. The engineer is directed to increase the outlet liability on the property owned by the Municipality of the Nation and identified as Pt. E1/2 Lot 30 to $50.00.

7. Future maintenance on culverts that are part of the drain shall be assessed as follows: 60% of the cost to upstream landowners, on outlet liability basis only; 40% of the cost to owners of the private property to which the culverts provide access; or, where the culverts do not provide access to private property, the owners of the land on which the culverts are located.

8. The appeal of Jean-Claude Pavan under Section 54 of the Act is dismissed.

9. The appeal of Royal Bourdeau under Section 48 of the Act is dismissed.

10. 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 Tribunal notes that in allocating the costs of this drainage works the engineer did not differentiate the rate of run-off that various kinds of property might generate. For example, he applied no different factor between residential properties with lawns, roof drains and driveways and undeveloped lands in the state of nature. The Tribunal is of the view that such differentiation should have been factored into the assessment. Without it, the large, undeveloped properties bear an unfair burden of the costs of this project. The Tribunal is of the view that a minimum assessment per property is appropriate in this case, as the large number of properties affected can be expected to increase the cost of the drainage works.

The Tribunal found that there was insufficient evidence presented to support a modification of the drainage works. The Tribunal was concerned that the engineer’s report was difficult for lay people to read as the descriptions of the work to be undertaken were largely found in the appendices to the main report, rather than the narrative portion of the report.

Dated at Guelph, Ontario this 15th day of December▬ ❞⌙↨↨↨‼