Jim McLaughlin v. Town of Minto, 2001 ONAFRAAT 31

Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Municipal Drain #17 Town of Minto

Municipal Drain #17 (RE) 2001 ONAFRAAT 31

STATUTE: Drainage Act

HEARING: May 9, 2001

DATE OF DECISION: June 15, 2001

2001-31

NEUTRAL CITATION: 2001 ONAFRAAT 31

Municipal Drain #17 Town of Minto

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 Mr. Jim McLaughlin under Section 54 of the Drainage Act from the decision of the Court of Revision, dated November 8, 2000 on the Municipal Drain #17 in the Corporation of the Town of Minto.

Before: John Taylor, Vice Chair; Jack Young, Vice Chair; Tom Hall, Member

Appearances: Jim McLaughlin, appellant John R. Spriet, P. Eng., Spriet Associates, engineer for the report Chris Peter, Drainage Superintendent, Town of Minto Everett Grotenhuis, landowner Donna Michlowski, landowner Margaret Wenzel, landowner Gordon South, landowner

DECISION OF THE TRIBUNAL

This appeal was heard in the Town of Minto, Ontario on May 9, 2001. Mr. Jim McLaughlin appealed to the Agriculture, Food and Rural Affairs Tribunal (the Tribunal) under section 54 of the Drainage Act (the Act) from a decision of the Court of Revision dated November 8, 2000 with respect to Drain No. 17 in the Town of Minto. Ms. Dianne Friesen, Clerk of the Town of Minto, performed the duties of the Clerk of the Tribunal.

The Tribunal issued an order dated January 16, 2001 making all landowners assessed or compensated in the August 21, 2000 engineer’s report on the Davis Drain, Town of Minto parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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.

The Issue

The issue before the Tribunal is:

Are the special assessments for Drain No. 17 in the Town of Minto in the engineer’s report dated August 21, 2000 and confirmed by the Court of Revision, appropriate?

The Background

Mr. John R. Spriet, P. Eng. told the Tribunal that the Drain No. 17 Town of Minto report by Spriet Associates dated August 21, 2000 was prepared as the result of a request by a landowner made pursuant to Section 78 of the Act. He explained that on May 28, 1996 Mr. Jim McLaughlin asked that the portion of the drain that crossed his properties as an open ditch be replaced by a tile drain. The affected properties were Roll Nos. 4-082-10, 4-083 and 4-082-50 (Lot 16 and 17, Concession 5).

Drain No. 17 was originally constructed pursuant to a by-law passed in 1923. It was extended upstream and a branch was added as the result of a report prepared by J. A. Howes in 1963. A 1,300 feet long portion of the drain was deepened as the result of a 1976 report by K.A. Smart on Drain No. 79, a tributary to Drain No. 17.

Mr. Spriet explained there was a delay between the request for the work and the final report because: Mr. McLaughlin was initially not sure he wanted to proceed, due to cost considerations; there were delays related to changes requested by the Department of Fisheries and Oceans (DFO); and his original report, dated September 21, 1998, was reconsidered at the request of the Council of the Municipality. He told the Tribunal that key developments in the process of designing this drainage works were:

• JN 18 96 First site meeting. Ministry of Natural Resources (MNR) and Maitland Valley Conservation Authority were invited to attend but did not send representatives.
• JN 19 96 Maitland Valley Conservation Authority indicated it had no objection to the closing in of the drain.
• JL 09 96 MNR indicated it would be pleased to offer comments regarding the maintenance of the fish habitat, if the project were to proceed.
• December 1996 Mr. McLaughlin indicated he wished the project to proceed, based on a rough cost estimate. Also, Mr. E. Grotenhuis, owner of the property identified by Roll No. 4-017 (Lot 101, Concession D) asked that the portion of the open ditch drain on his property also be closed in with tile.
• FE 18 97 Second public meeting. No representatives of the Conservation Authority, MNR or DFO were in attendance. Mr. Wenzel, owner of properties identified by Roll Nos 4-081 and 4-081-50 (Lot 14, Concession 4) indicated he wanted the portion of the drain crossing his land closed in as well.
• MR 18 97 Further public meeting held. No representatives of the Conservation Authority, MNR or DFO were in attendance.
• AP 02 97 Further public meeting held. No representatives of the Conservation Authority, MNR or DFO were in attendance. After this meeting Mr. Spriet sent information on the proposed work to DFO.
• AP 29 97 MNR indicated it was not prepared to support the proposed drain closure.
• JN 23 97 DFO indicated it was reviewing the plans and would undertake a field evaluation.
• JL 21 97 DFO indicated the portion of the drain on the McLaughlin could not be closed in, but the upstream portion of the drain could be closed.
• SE 30 97 Public meeting held to discuss DFO position. Representatives of the DFO and MNR were in attendance.
• AP 15 98 Township Council directed that the engineer’s report be prepared. At that point, Mr. McLaughlin still wished to have the downstream portion of the ditch closed in, but Mr. Wenzel did not want the portion on his property filled in. Council had obtained legal advice prior to ordering the preparation of the report.
• SE 21 98 Original Drain No. 17 Township of Minto engineer’s report was completed.
• NV 02 98 Report considered by Council.
• DE 07 98 Court of Revision heard three appeals.
• December 1998 An appeal to the Tribunal was initiated as a result of the Court of Revision decision, but could not be heard as the engineer’s report had not been adopted by Council. The Council received further legal advice and directed that the report be revised, to accommodate the DFO direction.
• AU 21 00 Revised Drain No. 17 Town of Minto engineer’s report was submitted.
• NO 08 00 Court of Revision heard an appeal from Mr. McLaughlin on the revised report.

Mr. Spriet explained that the revised report removed the proposed tile on the McLaughlin properties and upsized the proposed tile on the Grotenhuis property. He explained that the last time the drainage ditch was cleaned out was the result of a 1968 report, but the ditch had been deepened and a railway culvert had been installed in the 1970s. He said that the 2000 report called for the clean out and brushing of the open ditch; the lengthening of a farm culvert on the South property (Lot 99, Concession D); the replacement of the open ditch with a tile drain on the Grotenhuis property (Lot 101, Concession D); and the installation of catchbasins to collect surface water flows.

Mr. Spriet testified that part of the cost of determining the appropriate tile sizes for the drainage works was the need to re-establish and verify the watershed. He said that the original report was modified to meet the DFO requirements. But, he pointed out that the engineering costs for the original report had already been incurred prior to the DFO raising concerns. The watershed for this drain was approximately 375 hectares.

Mr. Spriet explained that $38,900 of the cost of the proposed work - including $13,200 special benefit assessments, related to the engineering costs associated with the tile proposal, and a new culvert - was apportioned to the open portion of drain. He explained that he had assessed the engineering cost to the various landowners who had asked for the improvements. He explained that he had consulted with an employee of the Ontario Ministry of Agriculture, Food and Rural Affairs and was told that the special assessments were eligible for a grant.

The Evidence and the Findings

Mr. Jim McLaughlin, appellant

Mr. McLaughlin told the Tribunal that his concern was with the special assessment on his properties. He explained that he had been content with his assessment in the original engineer’s report as the open portion of the drain that crossed his land was to be closed in, as he had asked. He said he understood why he would pay a special benefit for closing in the drain as that provided betterment to his land. He explained that he objected to the $9000 special assessment in the revised engineer’s report as he was not receiving any improvement to his property.

Mr. McLaughlin submitted that at the beginning of the project, the MNR was in charge of whether or not the drain could be closed, but that government policy changed and the DFO took over this responsibility. He suggested that, because of this government policy change, and because the government representatives had not attended the public meetings, the extra engineering costs should be assessed to the DFO.

Mr. McLaughlin pointed out that the engineer’s report held him responsible for 42% of the cost of the open drain portion of the project, and that on a per hectare basis he was assessed five times as much as anyone else on the drain. He said that in his mind, if the drain was closed in, that would give him a special benefit, but since it was not there should not be a special benefit assessment on his properties. He said he did not understand why he should be penalized when the DFO was the cause of the original design being rejected.

In response to questions, Mr. McLaughlin explained that he had not been aware that the MNR or the Maitland Valley Conservation Authority had any concerns at the beginning of the process to improve the drain. He said it was approximately two years after his initial request that he was informed that the DFO had concerns. He understood that the Conservation Authority had no concerns with the proposed closing in of the drain, but that the DFO was concerned with the potential to harm warm water bait fish. Mr. McLaughlin said he did not understand this concern as the ditch is man made and carries very little water. He also said he thought the water quality would be improved if cattle were kept out of the drain.

Mr. McLaughlin said that part way through the process he found out that the Council was proceeding against the wishes of the DFO. He said that if the DFO could not be assessed he did not know who should pay the special benefit cost, but he suggested Council might be asked to pay this cost. Mr. McLaughlin said that if the Tribunal were to order that the work in the first report be completed, he would not object to the special benefit charge.

Mr. Everett Grotenhuis, assessed landowner

Mr. Grotenhuis informed the Tribunal that the Township had originally sent out a letter to landowners on the drain, suggesting a clean out, but that Mr. McLaughlin said that he wanted the drain closed in, on his properties.

Mrs. Donna Michlowski, assessed landowner

Mrs. Michlowsi testified that she had asked about possible environmental concerns at the initial site meeting and at three subsequent public meetings, but had been assured that there were none. She said that she had found that hard to believe as the drain has evolved into a natural waterway. She said that she had subsequently reviewed the letters written by staff of the Conservation Authority and the MNR in 1996. She pointed out that the Conservation Authority had raised a concern about a wetland and that the MNR letter made specific reference to concerns about bait fish habitat.

Mrs. Michlowski said she felt that there had been ample time to deal with environmental concerns before the engineering work was undertaken and she did not believe the engineer had used due diligence. Mrs. Michlowski said that it should have been evident from the beginning of the process that there would be environmental concerns with the proposal, as the drain resembled a natural stream with a gravel bottom and trees on the banks. She said that she did not believe the drain ever completely dried up. She submitted that ratepayers should not be required to pay the engineering costs for the drainage works. She also said a full clean out was unnecessary as the drain was functioning well.

In response to questions, Mrs. Michlowski told the Tribunal that she had contacted the DFO to be sure that a representative would attend a public meeting. She told the Tribunal that after the DFO and Mr. Spriet advised the landowners that the downstream portion of the drain could not be closed in, Mr. McLaughlin indicated he wanted the work done.

Mrs. Margaret Wenzel, assessed landowner

Mrs. Wenzel explained that her late husband had inquired as to the cost of replacing the open ditch with a closed tile drain at a public meeting, but that he had never asked that the work be done. She said she felt that she was in a different situation than Mr. McLaughlin, as she and her husband did not want the drain closed on their property, and as none of the plans attached to either the 1998 report or the 2000 report had indicated that this work would be undertaken on her property.

In response to a question, Mrs. Wenzel identified her husband’s signature on a letter dated FE 23 97 in which the proposed work was requested, but she said that he had not wanted the work to be done.

Mr. Gordon South, assessed landowner

Mr. South indicated that he was the landowner who had asked that a longer culvert be installed. He said that he agreed with Mrs. Michlowski that landowners were not notified early enough about the concerns raised by the MNR and the DFO. He said that he also agrees with Mr. McLaughlin that the landowners should not be assessed special benefits.

Mr. John R. Spriet, P.Eng

Mr. Spriet told the Tribunal that when no representative of the MNR or DFO attended the early public meetings on this proposed work he contacted the MNR and received what he felt was a standard response letter. He testified that the MNR letter did not cause him concern, as it was usual for the Ministry staff to mention warm water and streams and as there was no detailed plan of the proposed work at that time.

Mr. Spriet explained that the survey work was undertaken between December 1996 and February 1997, after Mr. McLaughlin and Mr. Grotenhuis had decided they wanted the drain closed in on their lands. He said that Mr. Wenzel asked that the cost of closing in the drain on his properties be provided in February 1997. Mr. Spriet told the Tribunal that at this time, the Conservation Authority had indicated it had no concern about closing in ditches that had farmland on either side, and that neither the MNR nor the DFO had attended any meetings. He said Mrs. Michlowski asked if these agencies had been informed of the proposed work, and if they had any concerns about the proposal, at a meeting in February 1997.

Mr. Spriet told the Tribunal that it was not until April 27, 1997 that the MNR staff indicated that they were not prepared to support the enclosure of the drain. He said the DFO did not respond until July 21, 1997. He explained that by this time virtually all of the engineering work had been completed. He told the Tribunal that the DFO and the MNR did not attend any public meetings until September 30 1997, and said that they had only come to that meeting at his insistence. Mr. Spriet explained that the DFO did suggest re-routing the drain at that meeting, but that the proposed new route was not practical. He said that in his view there was no doubt as to what the DFO would and would not approve at the September 1997 meeting, but that there was some question as to whether the DFO had the final say in the matter. He reiterated that he had made an effort to have representatives of the MNR and the DFO at earlier public meetings.

Mr. Spriet testified that the legal process undertaken by the Municipality had delayed the delivery of his first report for approximately one year. He explained that he sent his report to the Municipality’s legal counsel in October 1998. He said that he understood that the legal counsel, Mr. Courey, was authorized to enter into negotiations with the DFO in November 1999. However, he said that in May 2000 he was directed by the Municipality to modify the report to accommodate the changes requested by the DFO.

In response to questions, Mr. Spriet indicated that:

• Mr. Wenzel became ill and said he no longer wanted the ditch closed in on his properties prior to the preparation of the first report.
• The drainage basin area had been significantly changed since 1928 and a new maintenance schedule was needed to ensure fairness.
• He had no authority to assess the MNR or the DFO on this drain.
• In determining the assessment for the work on the open portion of the drain, he considered what it would be reasonable to charge upstream landowners for the clean out of the open ditch, and assessed the balance of the cost as special benefit to those requesting the work.
• He did not identify the engineering cost as a special benefit in his initial report as the affected landowners were assessed most of the cost of the project.
• He does not receive many letters from the MNR. He was not unduly concerned with the April 1997 letter as the MNR seemed to be leaving the door open for discussion, and as the Conservation Authority had indicated it had no concerns with the proposed work.
• It had not been possible to correlate the new profile of the open drain with that in earlier reports.
• It was not his practice to inform petitioners of MNR concerns when they requested work on a drain. He explained that both the requests for work and the letters from the environmental agencies were sent directly to the Municipality.
• He had sent a detailed description of the proposed work to the MNR when no representative attended the public meetings.
• It was not possible to resolve all outstanding issues prior to surveying the project. The DFO always comments after the fact.
• The wetland referred to by the Conservation Authority was outside the drainage area and thus was of no concern.
• There was a plan drawn up in February 1997 which showed the drain on the Wenzel properties closed in. This plan was not circulated as the Wenzel request was withdrawn before the final report was completed.
• There was approximately $5,800 of work on this drain that had not yet been billed to the Municipality. He did not intend to charge for approximately $4,000 of work.

Mr. Chris Peter, Drainage Superintendent:

Mr. Peter told the Tribunal he has been the Drainage Superintendent for the Municipality for over thirteen years and that he wrote the initial letter regarding maintenance required on the drain. He said he was approached by Mr. McLaughlin about the possibility of closing in the drain, and that he had then approached other landowners in the watershed to see if anyone else wanted work done at the same time.

Mr. Peter said that on May 29, 1996 Mrs. Michlowski called him to discuss the possibility of an appeal and that she followed up with a letter the next day. He testified that her concern at that time was the expense of the project; and that she did not raise any concerns about the environmental impact of closing in the ditch. He said that no environmental concerns were raised at the on site meeting.

Mr. Peter said that his recollection was that, at the on site meeting, Mr. McLaughlin indicated he would like a rough estimate of cost before deciding whether or not to proceed. He said he attended the December 2, 1996 Council meeting and that Mr. McLaughlin told Council he wanted to proceed. He explained that he had had no direct contact with the MNR or the Conservation Authority at that time, but that he had sent them the same letters as he sent to all ratepayers on the drain.

Mr. Peter said that in July 1997 he understood that staff of the MNR and DFO would be contacting him when they were in the area to inspect the site. He said that they did not contact him but in late July 1997 the DFO indicated it would not support closing in the drain on the McLaughlin lands.

In response to questions, Mr. Peter indicated that:

• There were 125-130 municipal drains in the Municipality.
• He follows a similar procedure with requests for improvements to all drains. But, he pointed out that the MNR is no longer involved, and that the Conservation Authority will contact the DFO directly, if necessary. He said he still does not circulate letters from the DFO to landowners, but that these letters are placed in file specific to the drain and are available for the public to view.
• Notwithstanding the DFO concerns with this drainage works, there was still a desire by Mr. McLaughlin and Mr. Grotenhuis to have the drain closed in.
• The Minto Township Municipal Council had always been very progressive with drainage, and was concerned with the DFO becoming involved in man made ditches. He said that the Council approached Mr. Courey for legal advice on this matter, as he was involved with the DFO on a similar case in Elgin County. In his view the legal advice received was a deciding factor in Council opting to proceed against the wishes of the DFO.
• In April 1998, the Minto Township Council directed that the first engineer’s report be prepared with the drain closed in on Mr. McLaughlin’s properties.
• Subsequently, the township was amalgamated into the Town of Minto.
• The Town of Minto Council contacted Mr. Courey in 1999 and that he suggested that he approach the DFO to see if the drain could be closed in on the upstream portion of the McLaughlin lands. At this point it was known that his other case involving the DFO was not resolved successfully.
• However, on May 24, 2000 Council asked that the report be revised and that the open ditch on Mr. McLaughlin’s lands not be closed in, as per the DFO direction.
• Mr. Spriet had recommended Mr. Courey but he did not urge the Council to pursue the matter further.
• There was no information base as to which drains and streams were suitable for fish habitat in the Municipality. Knowing the drain at the time the requests for improvements were made, he did not foresee a problem with the DFO.

Findings

The Tribunal finds that the cost of the drainage works was increased as a result of the project being designed prior to receiving the input of staff of the MNR and the DFO. The Tribunal finds that the MNR and the DFO acted irresponsibly in neglecting to attend the first four public meetings on the proposed drainage work. However, the Tribunal notes that staff of the MNR did raise an early concern with regard to bait fish habitat and did offer to provide further comments if the proposed work was to be undertaken. The Tribunal finds that, given the experience of the Municipality and the engineering firm with drainage matters, they should have been aware that there would be problems with closing the drain and they should not have incurred such high costs before the environmental issues were resolved. The Municipality is referred to Section 72 of the Act.

The Tribunal finds that the Municipality was responsible for the necessity to prepare both an initial and a revised report on this work, as the Municipality chose to order a report that included the work requested by Mr. McLaughlin after the DFO had specifically prohibited the closure of the bottom portion of the drain. The engineer should have warned the Municipality that this could increase the cost of the project. The Tribunal recognizes that the Municipality did seek legal advice before taking this stance.

ORDER OF THE TRIBUNAL

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

1. The engineer is directed to modify his August 21, 2000 report to reduce the special assessments on the McLaughlin, Wenzel and South properties as follows:

Roll Number	Owner	Original Assessment	Change	New Assessment
4-082-10	McLaughlin	$6,000	($4,500)	$1,500
4-083	McLaughlin	$2,500	($1,875)	$625
4-082-50	McLaughlin	$500	($375)	$125
4-081	Wenzel	$2,400	($1,800)	$600
4-081-50	Wenzel	$200	($150)	$50
4-014	South	$1,600	($150)	$1,450
Totals		$13,200	($8,850)	$4,350

2. The engineer is directed to modify his August 21, 2000 report to include a special assessment in the amount of $8,850 to be assessed to the Town of Minto.

3. The special assessment to the Town of Minto is to be raised by the general rate. Neither that cost nor any solicitor costs incurred as the result of this drainage project are to be charged to the ratepayers on the drain as part of this drainage project.

4. The non-administrative costs of the Town in respect to this appeal, other than those identified in Order #3, 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 Municipality initiated the completion of the original report knowing that the MNR and DFO concerns had not been addressed.

Dated at Tilbury, Ontario this 15th day of June, 2001.