Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Holland Marsh Drainage System

Town of Bradford West Gwillimbury

Holland Marsh Drainage System (RE) 2001 ONAFRAAT 5

STATUTE:

Drainage Act

HEARING:

January 16, 2001

DATE OF DECISION:

January 30, 2001

2001-05

NEUTRAL CITATION:

2001 ONAFRAAT 5

Holland Marsh Drainage System

Town of Bradford West Gwillimbury

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

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal, under Section 76(1) of the Drainage Act, by the Town of Bradford West Gwillimbury, for permission to procure an engineer’s report for the purpose of modifying the assessment schedule that pertains to the Holland Marsh Drainage System

Before:

Andrew Osyany, Vice Chair; Jim Rickard, Chair; Jack Young, Vice Chair

Appearances:

Paul Courey, counsel to the applicant, the Town of Bradford West Gwillimbury

Art Janse, Drainage Superintendent for Bradford West Gwillimbury and Township of King

Nadia Koltun, counsel to the Town of Caledon

Josie Matera, counsel to the Township of King

William D. Turville, counsel to the Town of New Tecumseth

Susan Plamondon, counsel to the Town of Newmarket and the Town of East Gwillimbury

DECISION OF THE TRIBUNAL

This appeal was heard in Bradford, Ontario on Tuesday, January 16, 2001. The Town of West Gwillimbury applied under Section 76 (1) of the Drainage Act for permission to procure an engineer’s report to vary the assessment schedule that applies to the Holland Marsh Drainage System. Ms. Juanita Dempster-Evans, Clerk-Administrator, Town of Bradford West Gwillimbury, performed the duties of the Clerk of the Tribunal.

Section 76 of the Act states:

76. (1) The council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal, of which notice has been given to the head of every other municipality affected by the drainage works, for permission to procure a report of an engineer to vary the assessment, and, in the event of such permission being given, such council may appoint an engineer for such purpose and may adopt the report but, if all the lands and roads assessed or intended to be assessed lie within the limits of one local municipality, the council of that municipality may procure and adopt such report without such permission.

77. (2) The proceedings upon such report, excepting appeals, shall be the same, as nearly as may be, as upon the report for the construction of the drainage works.

78. (3) Any council served with a copy of such report may, within forty days of such service, appeal to the Tribunal from the finding of the engineer as to the portion of the cost of the drainage works for which the municipality is liable.

79. (4) Any owner of land assessed for maintenance or repair may appeal from the assessment in the report on the grounds and in the manner provided by section 52 in the case of the construction of the drainage works.

80. (5) An assessment determined under this section shall thereafter, until it is further varied, form the basis of any assessment for maintenance or repair of the drainage works affected thereby.

R.S.O. 1990, c. D 17, s. 76.

The Background

The Holland March Drainage System was constructed pursuant to the 1924 report of Alexander Baird, Engineer and Ontario Land Surveyor. The report allowed for the deepening, widening, straightening and clearing of the south portion of the Holland River, and its tributaries, the construction of a pumping station, and the excavation and embankment of a system of drains, canals and dams. The project was designed to drain marsh and low lying lands along each side of the Holland River in the Township of West Gwillimbury and the Township of King and extending south and south west to the Village of Bradford.

Drainage in the region was expanded in 1931 through the construction of the Holland River Municipal Drain, pursuant to the July 1931 report by U. W. Christie, Civil Engineer.

The Holland Marsh Drainage System was modified in 1990 in accordance with a report by D. Harsch, P. Eng., which detailed improvements to the pumping system.

In February 2000, The Town of Bradford West Gwillimbury proposed to amend the assessment schedule established in the 1990 report to include lands in the Town of Bradford West Gwillimbury, the Township of King, the Town of East Gwillimbury, the Town of Caledon, the Town of New Tecumseth and the Town of Newmarket.

Preliminary Issues

Mr. Jack Young informed the parties that he had a previous involvement with the Holland Marsh Drainage System as his firm had designed a new pump station for the drainage works in the late 1980’s at the request of the Town of West Gwillimbury. He stated that his firm had sold its drainage business in 1990 and that he had not been involved in drainage projects since that time. Mr. Young clarified that he had not been directly involved in the work on the pump station as another engineer in his firm had been in charge of the project. All parties present indicated that they did not object to Mr. Young sitting on the panel that heard this application. Mr. Young repeated his explanation when Ms. Matera arrived and she also indicated that she did not object to Mr. Young as a panel member.

The Issue

The issue before the Tribunal is whether or not it should grant permission to the Township of Bradford West Gwillimbury to procure an engineer’s report to modify the assessment schedule for the maintenance and repair of the Holland Marsh Drainage System.

The Evidence and the Findings

After the commencement of the hearing and the receipt of various items of documentary evidence, the parties, on their own initiative, agreed to Minutes of Settlement.

Based on the Minutes of Settlement, the Tribunal received submissions as to the actual form of the Order to be issued. The Order incorporates the appropriate parts of the Minutes of Settlement and sets out the additional procedural requirements imposed by the Tribunal.

The Tribunal is satisfied that the Order addresses a complex problem in an efficient manner and compliments the parties on having come to a resolution of the method of dealing with the issues in a manner that utilizes the intermeshing parts of the Drainage Act in an imaginative way.

ORDER OF THE TRIBUNAL

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

1. The application by Bradford West Gwillimbury for permission to procure an engineer’s report to vary the assessment schedule for the Holland Marsh Drainage System under Section 76(1) of the Drainage Act is granted.

2. In the first instance The Town of Bradford shall pay the entire costs of the engineer’s report.

3. 75% of the costs of the engineer’s report shall be assessed to the owners of land in the Holland Marsh Drainage Scheme according to the current by-law.

4. 25% of the costs of the Engineer’s report shall be paid by the parties to this application in accordance with the proportions set out in Schedule “A” attached hereto, from the general funds of each municipality if the application to the Referee fails. In the event the application to the Referee is successful, the 25% shall be assessed out under the report (as may be varied by the Referee). For the purposes of this provision, the application to the Referee shall be deemed to be successful if the Referee holds that any lands upstream of the Holland Marsh Drainage Scheme are liable for outlet assessment.

5. The parties shall circulate the proposed assessment schedule to all affected owners and shall co-operate in appropriate pre-hearing procedures to distribute information, receive inquiries, focus issues and group similar concerns so that the hearing before the Referee can be conducted efficiently.

6. Each party shall bear its own costs of the pre-hearing procedures.

7. Pending the completion of these proceedings any repair and improvement work on the Drain shall be conducted pursuant to the provisions of s. 78 of the Act.

8. This Order is without prejudice to any party identified in the engineer’s report to raise issues of legal liability in regard to the possible extension of the drainage area and the ability to assess riparian owners.

9. Upon the completion of the engineer’s report the applicant and all of the respondents shall make an application to the Referee to decide the legal issues referred to in paragraph 8.

10. Upon the application being filed all proceedings under this application are adjourned to the Referee, but until the commencement of the application referred to in the previous paragraph the Tribunal retains jurisdiction and the parties are at liberty to apply to the Tribunal for further directions. This panel is not seized of the issue.

11. 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.