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:

Bouchard Harrison Drain The Municipality of West Nipissing

Bouchard Harrison Drain (RE) 2002 ONAFRAAT 36

STATUTE:

Drainage Act

HEARING:

September 5, 2002

DATE OF DECISION:

October 4, 2002

2002-36

NEUTRAL CITATION:

2002 ONAFRAAT 36

Bouchard Harrison Drain The Municipality of West Nipissing

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 Rhéo Bouchard under Section 45 of the Drainage Act from the decision of the Council of the Municipality of West Nipissing not to adopt a provisional by-law regarding the Bouchard-Harrison Drain in the Municipality of West Nipissing.

Before:

Murray Cardiff, Chair; Andrew Osyany Vice Chair; Yvon Simoneau, Vice Chair.

Appearances:

Mr. Rheo Bouchard, appellant.

Jean Pierre (Jay) Barbeau CAO/Clerk on behalf of the respondent the Municipality of West Nipissing.

Mr. Wayne Ferris assessed landowner.

Mr. Vick Harrison assessed landowner.

Mrs. Audrey Menard assessed landowner.

Mr. Ken Smart P. Eng., witness.

DECISION OF THE TRIBUNAL

This appeal was heard in Sturgeon Falls, Ontario on Thursday September 5, 2002. Mr. Rhéo Bouchard appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 45 of the Drainage Act (the Act) from a decision of the Municipality of West Nipissing (the Municipality) not to adopt the provisional by-law for the Bouchard Harrison Drain.

Ms. Louise Coté, Deputy Clerk of 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 on the Bouchard Harrison Drain parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Preliminary Matter

The perception of bias was raised by the Chair of the Tribunal panel as a preliminary matter. Mr. Andrew Osyany explained to the assembled parties that, in his professional capacity as a lawyer, he was acquainted with two of the assessed landowners, Mr. Wayne Ferris (accountant) and Mr. John Ferris (lawyer). Mr. Osyany stated that the acquaintance arose from professional interaction only, they were not clients and that on no occasion had he been involved with the Messieurs Ferris in any social engagement. Mr. Osyany stated that he had no partiality towards them or against them and believed that he could participate in the Tribunal on an impartial basis, but that he would withdraw if anyone raised any objections. No objections were put forth and the panel proceeded to hear the matter.

Statutory Context

Section 45 of the Act states:

Adoption of report

45 (1)A report may be adopted by by-law in the form prescribed by the regulations and, when such by-law is given two readings by council, the report shall be deemed to be adopted and the by-law shall be known as a provisional by-law. R.S.O. 1990, c. D.17, s. 45 (1).

Appeal or referral to Tribunal

45(2) Where a report is not adopted by council, any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal. R.S.O. 1990, c. D.17, s. 45 (2).

The Issue

The issue before the Tribunal was:

1. Should the Municipality be ordered to adopt the February 28, 2002 Engineer's Report by K. Smart Associates Limited (engineer’s report) by a by-law for the Bouchard Harrison Drain.

The Background

The Bouchard Harrison Drain was initiated by a Petition under Section 4 of the Drainage Act (Act) signed by Mr. and Mrs. R. and C. Bouchard on August 16, 2001 and by Mr. V. and Mr. K. Harrison on September 4, 2001. The Road Authority of the Municipality of West Nipissing was included on the petition at a later date when the area requiring drainage was determined to include the roads owned by the Municipality of West Nipissing.

The Bouchard Harrison Drain consists of a watercourse with portions that are natural and portions that are improved, beginning in a low-lying wet area on the north side of Kipling Road. The drain crosses the Kipling Road by means of a culvert at Lot 10 Concession 2 and continues along the south side of Kipling Road across Lots 10 and 11 Concession 2. The drain crosses the Kipling Road at the northwest corner of Lot 11 and continues northward to outlet into a creek which flows to Badgerow Lake.

A first on-site meeting was held on October 2, 2001, followed by the engineer’s examination of the physical situation. A second on-site meeting was held on February 5, 2002, when the proposed recommendations were reviewed.

Council’s consideration of the engineer’s report took place on April 4, 2002, and the matter was deferred for further study. The report came back to Council on June 4, 2002, and the motion to pass the by-law was defeated.

The Evidence

Need for Drainage

Mr. Bouchard, Lot 11 Concession 2

Mr. Bouchard owns 160 acres of which 40 are presently cleared and in agricultural production. There are seven culverts that cross the road and bring water onto his property. Mr. Bouchard said that there is flooding after heavy rains and in the spring time. The flooding lasts from two days up to a week. The flooding interferes with the production of his hay crop.

If larger culverts are installed to accommodate the flow of water crossing the road the flooding will not be remedied unless the channel and outlet are equally improved to accommodate the flow. Even though there is a substantial fall from the neighbouring Harrison property onto his property, the water still pools on his property and on the Ferris property across the road.

He has maintained the portions of the channel that lie on his property and has removed large beaver dams. Maintaining the flow discourages the beavers from damming the channel.

The access bridge in his driveway was constructed in 1972 of concrete. It never satisfactorily contained the flow of water and it had collapsed. He installed an additional 18-inch diameter pipe beside the culvert in the access bridge.

Mr. Harrison, Lot 10 Concession 2

Mr. Harrison testified that his property is east of the Bouchard property on the south side of Kipling Road. Mr. Harrison said that his property consists of 152 acres with a mixture of cleared land and woodlot. There is a permanent residence on the property that is used by his family in spring, summer and fall. Mr. Harrison said that the access to his property is a roadway 250 feet long with a 36-inch culvert running under the road. Mr. Harrison said that in the spring the roadway is often under water, or washed away to the extent that he has to back fill the gaps with sand in order to use the roadway with a vehicle. Mr. Harrison has also removed several beaver dams over the years. Mr. Harrison would like the culvert to be replaced and the channel improved.

Mr. Ferris, Lot 11 Concession 3

Mr. Ferris’ submission was also on behalf of Colleen Knowles an assessed landowner with property at Lot 12, Concession 3 on the north side of Kipling Road. Presently these two properties are used as vacation properties. Soil mapping for the area including his property indicate silt loam that is suitable for agricultural purposes. The culvert crosses Kipling road and outlets on to his property and the water continues in a channel on his property for a great length.

The Ministry of Transportation undertook cleaning of the channel in 1975 in an attempt to keep the water flowing off Kipling Road. Due to inadequate funding the Ministry of Transportation was not able to clean out the whole of the channel on his property. Although there have been no beaver dam blockages in the drain in the past few years, for 8 years out of 10 the property has not been accessible due to spring flooding. At certain times of the year the property is inaccessible due to flooding over the road.

On August 7 and 8, 2002, there was a heavy rain which did not flow out of the channel until August 15, 2002. The standing water created a breeding ground for disease carrying mosquitoes.

Mr. Ferris and his brother are in favour of the drainage report.

Mr. Barbeau on behalf of the Municipality of West Nipissing

Mr. Barbeau, Clerk/CAO of the Municipality of West Nipissing told the Tribunal that the Municipality of West Nipissing came into being in 1999 as an amalgamation of 22 townships that covered 1500 square kilometers. Mr. Barbeau said that Mr. Bouchard installed the second culvert in his access bridge during a dry period and it was undersized; this led to the flooding of his property and may also adversely impact upstream owners. The rate of flow is constricted at the Bouchard property and installing larger culverts would alleviate the problem.

The water levels within the municipality have been at an all time high for the last few years.

After heavy rains or spring run-off, water remains in the channel for a few days and then drains away. The Municipality feels that no drainage work needs to be done for the benefit of the roads.

Mrs. Menard, Lot 11 Concession 3

Mrs. Menard testified before the Tribunal that she and her husband were opposed to the drainage works. Mrs. Menard said that her family uses their property on the north side of Kipling Road for recreation and hunting. There are no buildings on the property.

She did not attend any of the site meetings regarding the proposed works. She and her husband met with an engineer at their home to discuss the proposed works but the discussion did not change their opposition to the works.

She was not aware of any flooding in the area in the past 50 years. Ponding of water in the spring is to be expected.

Mrs. Menard told the Tribunal that she believed that the Drainage Act was enacted to provide drainage for legitimate agricultural enterprises and that she did not believe that Mr. Bouchard's farming activities warranted the provisions for agricultural drainage as set out in the Drainage Act.

Mr. Smart P. Eng., Ken Smart Associates Limited

Mr. Smart told the Tribunal that his engineering specialty is drainage. Mr. Smart said that he had been the author or assistant in writing approximately 800 drainage reports. Mr. Smart explained to the Tribunal that his February 28, 2002 Report on the Bouchard Harrison Drain was commissioned as a result of the petition of Rhéo Bouchard. Mr. Smart said that after the first site meeting was held the endorsement of the Road Superintendent was added to the petition. Mr. Smart had listened to the landowners and made his own investigations. He was satisfied that the problem was not the size of the culvert on the Bouchard property. Work was needed in the channel on the Harrison and Beauparlant properties. The flow in the channel downstream of the Bouchard, Harrison properties was restricted and water levels rose due to beaver and rock dam blockages. All the waters need a proper, legal, outlet.

Cost/Benefit Issue

Mr. Ferris, Lot 11 Concession 3

Mr. Ferris told the Tribunal that he believes that the Municipality refused to adopt the report solely because it did not want to spend the money to improve the drain. Mr. Ferris said that he believes that the cost of the proposed works justifies the improved drainage.

Mr. Barbeau on behalf of the Municipality of West Nipissing

Mr. Barbeau told the Tribunal that since the 1999 amalgamation the Municipal Council has dealt with over 40 applications for drainage works that were estimated to cost over three million dollars.

The schedule of funds for the proposed works amounted to approximately $13,700 assessed to the Municipality for the roads. Council understood that if it did not adopt the report, the engineer’s costs to date, in the approximate amount of $15,000, would have to be paid by the Municipality.

The Agricultural Advisory Committee advised the Council that it supported the proposed works.

The Road Superintendent added his name to the original petition for the works though he was not responsible for any budget concerns associated with the works. If there was a risk of road flooding the Council would have voted for the works to proceed.

The Council decided that the $90,000 cost did not justify the benefit for the proposed works.

Council did not believe that the possible increased land use to Mr. Bouchard justified the expense of the works. In making the decision, Council considered the amount of Provincial funding, and evaluated the benefit to the public at large, the taxpayers of the Province, as well as the local benefit. No formal cost/benefit statement was commissioned from the engineer.

All but two of the Municipal Councillors were present for the vote. Mr. Smart, the author of the report and Mr. and Mrs. Menard were present when the by-law was defeated. The proponents were not present.

Mrs. Menard, Lot 11 Concession 3

Mrs. Menard told the Tribunal that with respect to the cost/benefit issue she was of the opinion that the intent of the Bouchard petition for drainage was to have his driveway culvert replaced without having to bear all the cost himself. Any improved drainage would not increase the production of hay on the Bouchard property, therefore it was not worth the cost.

Though she and her husband would receive an allowance for damage to their property due to the proposed works, they still do not believe that the work is necessary. She and her husband were satisfied with the present state of the drain.

Mr. Smart P. Eng., Ken Smart Associates Limited

Mr. Smart told the Tribunal that at the second meeting to consider the report there were ten parties in attendance and the general feeling was one of acceptance.

No formal benefit-cost statement was commissioned by the Municipality, but in his professional opinion the proposed project was cost beneficial. If he did not think so, there was an obligation on him under the Act to report that. He evaluates the cost of the drain over the expected 50 year life span for the drainage works. In this case there are many road culverts which are undersized, and/or blocked that could lead to unsafe road conditions for which the Municipality would be liable. The potential benefit to the roads in having a legal outlet, better and easier maintenance, and lessened liability is easily worth $50,000 of the $90,000 overall cost of the project.

There is a very substantial area along the proposed drain that could be brought into agricultural production with the drainage works. This is one of the larger areas for agricultural potential. In order to cover the $90,000 cost of the drainage works, only $40,000 in agricultural benefits need to be identified. However, with the drain and the installation of tiles the annual increase in production could be over $6,000 per year, and even after factoring in the cost of tile installation, the total potential benefit is easily over $120,000.

Other matters

The panel was advised that Mr. Smart’s firm is also acting the for the Municipality as drainage superintendents. The person actually doing the work did not give evidence.

Allowances and the assessment of the cost of the drain were reviewed briefly by Mr. Smart. Mr. Smart made the statutory benefit assessment on a per metre basis.

Summations

Mr. Ferris, Lot 11 Concession 3

Mr. Ferris made his summation on behalf of Mr. Harrison and Mr. Bouchard as well as himself. Mr. Ferris told the Tribunal that in their opinions and in Mr. Smart's professional opinion, the proposed works were necessary and cost beneficial. Mr. Ferris told the Tribunal that the Municipality was responsible for the flooding of his property and the Harrison and Bouchard properties because it installed the road culverts initially to discharge water onto the properties on the south side of the road to avoid the capital expenditure for blasting through the rock to create a proper outlet. Mr. Ferris told the Tribunal that the proponents of the works wished the Tribunal to order the Municipal Council to pass the by-law, to address any concerns of the Menard family and to put a time limit on the beginning of the works. Mr. Ferris said that he and the proponents realize that it is too late to begin construction on the work this year. Mr. Ferris said that the proponents believe that the matter had been sufficiently aired and as there were no objections to the assessments the Tribunal should order that there be no further appeals to the Tribunal or the Court of Revision. Mr. Ferris told the Tribunal that the proponents were not seeking costs for themselves for the hearing but that all other costs should be borne by the Municipality.

Mr. Barbeau on behalf of the Municipality of West Nipissing

Mr. Barbeau told the Tribunal in his summation that the reason the by-law was defeated was that the Council decided that the cost out-weighed the benefit. Mr. Barbeau told the Tribunal that the Council also gave weight to Mr. and Mrs. Menard's objections, which were not based solely on monetary concerns. Mr. Barbeau told the Tribunal that the Municipality is satisfied that the road is safe. Mr. Barbeau asked the Tribunal to uphold the decision of the Municipal Council not to adopt the by-law. He also asked that, if the Tribunal reversed the decision of Council, that any assessed landowners have the opportunity to make future appeals.

Mrs. Menard, Lot 11 Concession 3

Mrs. Menard told the Tribunal in her closing remarks that, the Menard family remained opposed to the proposed works and they wished the Tribunal to make an order confirming the decision of Council not to adopt the by-law. Mrs. Menard said that she wanted the assessed landowners to be able to appeal any future decisions under the Act should the works proceed.

Mr. Smart P. Eng., Ken Smart Associates Limited

Mr. Smart told the Tribunal that the Bouchard petition for drainage was justified and that the provisions of the Act should be honoured. Mr. Smart told the Tribunal that in his professional opinion as an engineer, the work should proceed. Mr. Smart said that he believed that should the Tribunal order the by-law to be passed then the Municipality should conduct a Court of Revision to deal with any future opposition to the assessments. Mr. Smart told the Tribunal that he felt that the costs of the hearing should be charged to the Municipality and that all parties should be responsible for their own costs.

The Findings

Necessity of the Works

Evidence was presented by the proponents of the drain to indicate to the Tribunal that the condition of the present drainage structures along the south side of Kipling Road warranted the proposed works. Evidence was presented that the proposed works would provide relief for the assessed landowners from seasonal flooding and ponding of water on the properties on the south side of Kipling Road, specifically on Lots 10 and 11 Concession 2.

The Municipality is partially responsible for the poor drainage conditions as it previously chose to direct the flow of water under the Kipling Road by way of installing culverts without providing an adequate and legal outlet for the watercourse.

The panel accepts the overwhelming evidence of the necessity of the proposed drainage works.

Cost/Benefit Issue

The opposition to the drain and the hearing focused in on the cost/benefit justification of the drain. The panel accepts the engineer’s professional unchallenged evidence on this issue and makes a specific finding that the benefits of the proposed drainage works justify the costs. While no formal statement had been asked of the engineer, the panel agrees with the engineer’s methodology and conclusion. Municipal Councils should rely on expert opinion on this issue, and if they are not satisfied with the project engineer’s opinion, they should seek another professional opinion.

Because this issue has been aired fully, the panel will order that this issue shall not be raised in any subsequent proceedings on this project.

It is not appropriate for a Municipal Council to consider the level of Provincial funding in evaluating the cost effectiveness of a project; a project must live or die based on the total cost. Provincial funding availability and level are considerations for the Province and not the local Municipal Council.

Allowances and Assessment of Cost

While these were briefly canvassed in the hearing, they were not dealt with fully and therefore the panel makes no findings in regard to them, except for noting that the per metre calculation of statutory benefits is not an appropriate method of calculating statutory benefits.

Engineer’s Independence

The Municipality and the project engineer were on the opposite sides of the principal issues. This was awkward for both, since the engineer’s firm also acts as the drainage superintendent. The panel notes that the superintendent normally gives evidence in these hearings and that the evidence of the superintendent is very useful. The panel reiterates that an employee of the municipality should not be the project engineer. The engineer must be independent and must be seen to be independent.

Incidental Matters

Mr. Barbeau had prepared a binder of all the basic documents. This was very convenient and helpful for the panel and the hearing process and the panel thanks Mr. Barbeau for this.

The engineer, Mr. Smart, had prepared a very detailed report, with excellent descriptions of the project and the work proposed to be done on each segment. Details of the proposed work are also shown on the profiles along each segment. In general, the report is very complete and informative. The panel compliments Mr. Smart on these aspects of the report.

All the witnesses presented their evidence and submissions in an orderly and professional manner, and a lot of potential heat turned into light.

Appropriate Disposition of Matters

Clearly, the Municipality should be ordered to pass the by-law adopting the engineer’s report. This hearing dealt with a number of matters that normally come to the Tribunal when there is an appeal from the engineer’s report. However, the only issue that was fully aired and determined in this case is the cost/benefit issue. Therefore, it is appropriate that all the usual rights of the parties should be preserved, following Council’s passage of the by-law, with the exception of the cost/benefit issue, which should not be the subject of any further appeals.

This hearing was a benefit to the drain as a whole, in settling various matters, and therefore, it is appropriate that the costs of these proceedings should be added to the cost of the project.

ORDER OF THE TRIBUNAL

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

1. Not later than at the second meeting of the Council of The Municipality of West Nipissing after the release of this decision, Council shall pass the provisional by-law to adopt the February 28, 2002 Engineer's Report by K. Smart Associates Limited as a by-law for the Bouchard Harrison Drain.

2. Following the passage of the by-law, the normal provisions of the Drainage Act shall apply in regard to the Court of Revision and appeals to the Tribunal, save and except that no appeal shall lie on the basis that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof.

3. 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.

Dated at Shelburne, Ontario this 4th day of October 2002.