John Vanderkloet v. Township of Enniskillen, 2002 ONAFRAAT 28

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:

Hyatt Drain Improvement Township of Enniskillen

Hyatt Drain Improvement (RE) 2002 ONAFRAAT 28

STATUTE:

Drainage Act

HEARING:

June 26, 2002

DATE OF DECISION:

July 31, 2002

2002-28

NEUTRAL CITATION:

2002 ONAFRAAT 28

Hyatt Drain Improvement Township of Enniskillen

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

AND IN THE MATTER OF:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by John Vanderkloet under Section 48 of the Drainage Act from the engineer’s report on the Hyatt Drain in the Township of Enniskillen.

Before:

Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Mary Field, Member.

Appearances:

John Vanderkloet, appellant.

Ray Dobbin P. Eng. Drainage Superintendent, Township of Enniskillen.

John Klapak, assessed landowner.

Cheryl Young, assessed landowner.

Charlie Lassaline on behalf of D. Lassaline, assessed landowner.

Deputy Mayor, Jim Burns on behalf of the Municipal Council, Township of Enniskillen.

DECISION OF THE TRIBUNAL

This appeal was heard in, Petrolia Ontario on June 26, 2002. John Vanderkloet appealed to the Tribunal under Section 48 of the Drainage Act to modify the drainage works as proposed in the Engineer’s Report by Ray Dobbin, (“the Report”) of January 9, 2002.

Duncan McTavish, the Clerk of the Township of Enniskillen (the Municipality), performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the revised Engineer’s Report dated January 9, 2002 on the Hyatt Drain parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Oral evidence at the hearing was given by Ray Dobbin, P.Eng., John Vanderkloet, John Klapak, Cheryl Young, Charlie Lassaline and Deputy Mayor Jim Burns.

Statutory Context

Section 78 of the Act deals with improvements. Subsection 78(1) states:

Improving, upon examination and report of engineer

78. (1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report. R.S.O. 1990, c. D.17, s. 78 (1).

A provision for appeal is made in Subsection 48(1)(d) of the Act. Subsection 48(1) states:

Appeal to Tribunal

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. R.S.O. 1990, c. D.17, s. 48 (1).

The Issues

The issues before the Tribunal were:

1. Which report of the Engineer should be accepted, the one proposing only a cleanout of the drain or the one also proposing the covering in of part of the drain?

2. Under s. 78, when the proposed improvement of a drain is contentious, how is a decision to be made?

The Evidence

Background and History of the Drain

The Hyatt Drain was originally an open channel drain of approximately 1300m. The first 569m from the outlet are along Fairweather Road, then the drain takes a right angle turn and goes across farm fields for the rest of its length. The drain is typical of the drains in the Township. It was last improved under a report in 1976, when there was some deepening, and improvements to farm access bridges. On the Vanderkloet property the spoil that had been put on the side of the drain dams the channel banks, holding back water, leading to loss or diminished production on 5 acres. In 1976 the appellant, John Vanderkloet, wanted the drain closed in, but the contrary wishes of the other landowners prevailed.

In 1989 the work of an upstream owner was incorporated into the drain. The upstream owner had installed a tile drain and backfilled the open existing open channel. The section along Fairweather Road was cleaned out in 1990 under s. 74. The existing open channel is obstructed to various degrees with sediment particularly in the portion upstream of Fairweather Road. Some of the blockage is caused by wash-ins from the adjacent farmland while other sections have filled in over time. The outlet of the tile drain in Lot 6 is blocked by sediment.

This project was initiated by the clean-out request of the owner of part of Lot 6, C. Lassaline, where the tile drain is blocked. An on-site meeting was held and it was followed very shortly by the request of the owner of Lot 5, John Vanderkloet, to Council to have the drain on Lot 5 closed in. Another site meeting followed. At the subsequent Council meeting, attended by the proponent and two opponents, John Klapak and Cheryl Young, the Engineer (Ray Dobbin, P.Eng.) was directed under s. 78 of the Act, to prepare a report, providing for the closing in of the drain on Lot 5.

The Engineer’s preliminary report of September 21, 2001, provided for back filling of the open channel in Lot 5, Concession 7 and installation of tiles for drainage of surface and subsurface waters, surface water tile inlet and channel brushing. The total cost of the project in this report is $49,073.

This preliminary report came to Council on October 23, 2001. Correspondence to the Council opposing the covering in of the drain had been filed by Donna Klapak, John Klapak, Darlene Lasseline, Cheryl Young and Ken Young. The Council meeting was attended by the Engineer, John Vanderkloet, John Klapak, Karen Young, Lloyd Hyatt and Eileen Hyatt. Council approved the closing in project and directed the Engineer to make complete the final report.

The Engineer’s report, dated November 14, 2001, was filed on November 29, 2001. The total cost of the project is $47,696. Various modifications were made in this report from the preliminary report, but essentially it provided for the same work as the preliminary report. The report came to Council for consideration on January 8, 2002. The meeting was attended by the Engineer, Lloyd Hyatt, Charlie Lassaline, Cheryl Young and John Klapak. John Vanderkloet was not in attendance. At this time Council reversed its position on the closing in and referred the report back to the Engineer to delete the closing in of the drain.

The Engineer’s revised report, dated January 9, 2002, deleted the closing in of the drain, provided for the cleanout, the installation of a farm access culvert and the extension of the existing tile drain for 9m, to adjust access for owner of Lot 6. The total cost of the project is $14,939. The revised report came before Council on March 5, 2002. The meeting was attended by the Engineer, Cheryl Young, John Klapak and John Vanderkloet. The revised report was adopted by Council and John Vanderkloet appealed to the Tribunal. He wishes the Engineer’s report of November 14, 2001 restored. Assessment is not an issue for him.

The Engineer advised the Tribunal that the cost of producing the Report of January 9, 2002 was between $1,500 and $2,000.

Evidence on Closing in the Drain

Ray Dobbin, the Engineer, is also the Drainage Superintendent of the Township. In addition to those full-time duties, he has written reports both in the Township and other municipalities. He said that a number of open channel drains in the area have been closed in over the last few years. He believes that closing in the drain would increase production area for crops and eliminate the need for access culverts, many of which are too narrow to accommodate today’s farm machinery. Filling in the channel would also eliminate the problem of brush growth. He was not concerned about the short length of open channel on the West part of Lot 6 emptying into the closed drain. He believes that had Mr. Vanderkloet signed a s. 4 petition to get drainage for the area presently not served by the Hyatt Drain, he would have been entitled to have work done as he owns more than 60% of the area requiring drainage.

John Vanderkloet has owned most of Lot 5 since 1975. His brother, just upstream from him, owns the rest. He grows wheat, soybeans and in some years corn. His property and that of his brother are completely tiled. He maintains the section of the open channel that runs through his property and that of his brother’s, by cleaning out the brush and roots once a year. He wants the drain closed in to prevent washouts, bring more land into production and to eliminate the narrow culverts.

John Klapak, owns land immediately upstream of Mr. Vanderkloet’s brother. He told the Tribunal that he does not want the open channel filled and tiled as he does not believe that a closed tile drain would be able to accommodate the water as well as the open channel, especially during heavy rains. Mr. Klapak said that the properties upstream to his property are being adequately drained by the open channel also. Mr. Klapak told the Tribunal that he liked being able to see the tiles on his property out-letting into the channel and that with a closed drain this would no longer be possible.

Cheryl Young is the owner of lands just upstream from John Klapak. It is on her property that the open channel had been filled in and replaced by a closed drain. She explained to the Tribunal that there would be no guaranteed benefit to her property to have the open channel filled and tiled but that there would be twice as much expense. Mrs. Young told the Tribunal that her basement had flooded but that troughing had been installed which fixed the problem. Mrs. Young told the Tribunal that her property is tiled and that water from the tiles flows into a catch basin at the base of the Hyatt Drain. Mrs. Young told the Tribunal that water on the northernmost portion of her property flows into the Kesson Drain.

Deputy Mayor Jim Burns testified on behalf of the council of the Township of Enniskillen. Mr. Burns told the Tribunal that here have been cases where open channel drains have been back-filled and tiled but he was not aware of a drain that has open channel portions connected to tiled closed portions within the same drain. Mr. Vanderkloet did not attend the meeting to consider the November 14, 2001 report. The assessed landowners who did attend the meeting were not in favour of filling and tiling the portion of the drain proposed in the report. The council made its decision to eliminate the filled and tiled portion of the drain laying across the Lot 5 Concession 7 based on the wishes of the assessed landowners who voiced their opinions at the meeting to consider the November 14, 2001 report. Mr. Vanderkloet was not aware that the council was going to decide to delete the proposal for the filling and tiling of the portion of the drain on his properties.

Assessment

The Engineer advised that the cleanout portion of the assessment was based on the 1976 Engineer’s Report, which had similar cleaning and brushing.

The closing in of the drain on Lot 5 was assessed at 67% statutory benefit and 33% outlet liability to upstream properties.

Final Submissions

Mr. Vanderkloet told the Tribunal in his closing submission that Section 78 of the Drainage Act is open to interpretation and that the Municipal Council has a lot of latitude in making decisions in drainage matters. Mr. Vanderkloet told the Tribunal that he believes it is unfair that the majority of voices against the proposal to fill and tile the channel should take precedence over the fact that he is the owner of the majority of the property requiring drainage. Mr. Vanderkloet said that he understands that he would be assessed most of the cost for the works and is prepared to pay his share of the assessment. Mr. Vanderkloet told the Tribunal that the municipality should bear the costs of the reports produced subsequent to the September 21, 2001 report and that the costs should not be added to the drainage works.

In his closing submission Mr. Ray Dobbin, P. Eng. told the Tribunal that Section 78 of the Drainage Act provided for the action taken by the Municipal Council in the case of the proposed adoption of the report of January 9, 2002. Mr. Dobbin said that improvements to drainage works are often made under the provisions of Section 78 of the Act. Mr. Dobbin stated that a previous Tribunal ruling had directed the Municipal Council to give some weight to concerns raised by rate payers and not just the landowners assessed on the works. Mr. Dobbin said that he believed that had Mr. Vanderkloet petitioned for the works under Section 4, of the Act his request would have been successful by virtue of his ownership of 60% of the area requiring drainage.

Deputy Mayor Jim Burns told the Tribunal in his final remarks that the Municipal Council made its decision to delete the filling and tiling of the open channel because of the cost/benefit concerns expressed by the ratepayers. Mr. Burns stated that Mr. Dobbin had indicated that the proposed works was theoretically practical and that Mr. Vanderkloet would be assessed most of the cost. Mr. Burns said that he believed that council should have contacted Mr. Vanderkloet sooner after making the decision to delete the filling and tiling of the portion of the drain on his property.

The Findings

The Tribunal finds that the Preliminary Report did not correctly identify the drainage area and that this was corrected in the Report, dated November 14, 2001.

The Tribunal notes that the engineer’s reports of November 14, 2001 and January 9, 2002 are similar with respect to the drainage area and the proposed assessments. The Tribunal understands that the difference in the works as set out in the engineer’s report of November 14, 2001 and January 9, 2002 is the deletion of the proposed filling and tiling of the portion of the open channel laying across the Vanderkloet properties at Lot 5, Concession 7. Some errors have been fixed in each subsequent report, but one remaining typographical error is the reference to the 30m extension of the existing tile drain, whereas the intention was to have a 9m extension.

Based on the evidence, the Tribunal finds that the proposed closing in of the drain on Lot 5, Concession 7, is practical from an engineering point of view, and was properly assessed out in the Report, dated November 14, 2001.

In this case, and in many other cases, Councils are facing controversy in connection with drains that were designed and constructed generations ago. The drains were designed to accommodate the then prevailing land uses, machinery and farming practices, but there have been substantial changes since then. Very frequently, the owners of some of the lands on a drain want to upgrade the drain to current standards, while the owners of other lands are content with the functioning of the existing drain.

The basic scheme of the Drainage Act is that it is a compulsory scheme. Drainage (and expenses) will be imposed on unwilling owners of some lands. The safeguards built into the system are the majority requirements in the initiation of a new drain, and the participation of an independent engineer. When it comes to improvement of an existing drain, there is no majority requirement under s. 78. The decision is that of Council, with an appeal to the Tribunal.

Making a decision on improving a drain

There have been a number of cases coming to the Tribunal over the years regarding this issue. The following are proposed for consideration in cases of this kind.

1. The decision must be fair and reasonable and seen as such. The decision cannot be arbitrary, cannot be based on personal likes or dislikes, cannot be made “on principle” without consideration of the facts and circumstances.

2. Before making a decision, Council should be aware of the alternatives, fairly presented through the Engineer, either through a Preliminary Report or in some other fashion.

3. Before making a decision, Council should have afforded all the persons to be assessed an opportunity to be aware of the alternative proposals, including the estimated project costs. Normally this is done by the circulation of the Preliminary Report and the notice that Council will consider the Preliminary Report at a certain specific meeting.

4. Before making a decision, Council should have afforded all the persons to be assessed an opportunity to make representations to Council. Council only has to afford the opportunity, Council does not have to go out and actively solicit the representations.

5. The overall soundness of the alternative proposals should be weighed and compared, together with the impact of the alternative proposals on the lands within the drainage area. The primary consideration in the Drainage Act is the land and not the owner (who may sell or die in relatively short time).

6. The distribution of the cost of the alternative proposals should be considered.

7. There should be at least an informal benefit-cost consideration.

8. The support and opposition by the persons to be assessed for the various alternatives should be considered

9. The prevailing land use practices and drains in the community should be considered

Applying the above considerations, the engineering evidence is clear that the closing in of the drain on Lot 5 is feasible and desirable. The project would bring additional lands into production. The cost of the project is primarily assessed out to the lands on which the work is to be done. On this very drain the open channel had been filled in on other lands. Other open channel drains in the Township are being closed in. The proposal is supported by the owners of 41 ha assessed on the drain and opposed by the owners of 30.2 ha assessed on the drain. The former have a total assessment of $30,182 and the latter $10,145 for this part of the project. The degree of support and opposition was known to Council right from the beginning.

This panel is of the view that Council made the correct decision in October 2001, to have the open channel on Lot 5 closed in. Council’s subsequent reversal is not defensible. There were no new facts coming to light, no change about the feasibility or desirability of the project. There were no new proponents, there were no new opponents. The only difference in January 2002 was in the actual head count at the Council meeting. The proponent was not present and so the proponent lost. The project had already been approved over the objections of the opponents, and the proponent was not aware that it was necessary to be present at Council to re-fight the same battle.

It is appropriate that Council’s earlier decision be restored, and that the costs associated with the Report, dated January 9, 2002, be absorbed by the Municipality.

The independent engineer

The Engineer who prepared the reports is a full-time employee of the Municipality. He advised the panel that the Municipality is aware of the Tribunal’s views on this issue. A long line of cases from the Referee and the Tribunal stresses that the proper functioning of the Drainage Act is, to a very large extent, based on the participation of an independent professional engineer. All the persons assessed on a drain need to have the assurance that the drain had been designed and assessed out by an independent engineer who has done his/her work without fear or favour. Similarly, in the hearing process the Tribunal and the various parties rely on the independence of the engineer with regard to the issues that are before the Tribunal. It is difficult for an employee of the Municipality to undergo a rigorous testing of his/her design and methods of assessment when his/her work includes the full time employer and non-related owners. Are the municipal roads properly assessed? How do the alternative designs impact on the municipality for function and for costs? How are the engineering costs controlled?

It is clear that the Engineer must be independent and seen to be independent. There must be no conflict, no bias and no perception of either.

This is a plain message that has been delivered to municipalities many times. It is probably appropriate that some sanction should be imposed for the breach of this clear and obvious principle. The form of sanction would vary from case to case. This panel can envision situations in which the Tribunal would order the retention of a new engineer for the project and assess to the Municipality all the costs thrown away with the work of the municipal employee-engineer. This panel wants to stress loudly and plainly that there is a very substantial financial risk to a municipality appointing an employee to design drains.

In this case, the Engineer was put in a difficult position. Professionally he supported the closing in of the drain and this put him at odds with Council’s final decision.

Other than disallowing the sum of $2,000, arising from the Report, dated January 9, 2002, the panel is not imposing a further penalty in this instance, because it did not appear that there were any adverse financial impacts to the project of the Engineer being an employee of the Municipality, and the panel did not think that an additional engineer needed to be retained in this instance.

ORDER OF THE TRIBUNAL

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

1. The appeal of John Vanderkloet under Section 48 of the Drainage Act from the Report issued January 9, 2002 by Ray Dobbin P. Eng. on the Hyatt Drain in the Township of Enniskillen is granted.

2. The Clerk of The Corporation of the Township of Enniskillen (“Enniskillen”) is directed to amend the Engineer’s Report, dated November 14, 2001, by replacing the references to the 30 metre extension of the existing tile drain into the West ¼ of Lot 6 with a reference to a 9 metre extension, and to mark on the front of the report in red and underlined: “Amended pursuant to the order of the AFRAA Tribunal, dated July 31, 2002”.

3. The Council of The Corporation of the Township of Enniskillen is directed to amend Provisional By-law 11 of 2002 by replacing the figures and references to the Engineer’s Report, dated January 9, 2002, with the figures and references to the Engineer’s Report, dated November 14, 2001, as amended by this Order.

4. The cost of the Engineer’s Report, dated January 9, 2002, hereby fixed at $2,000, shall not form part of the costs of the drainage works.

5. Except as provided in the previous paragraph, the non-administrative costs of the municipality with respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Shelburne, Ontario this 31st day of July, 2002.