Elliott Municipal Drain (Re), 2003 ONAFRAAT 11

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:

Elliott Municipal Drain Municipality of Southwest Middlesex

Elliott Municipal Drain (RE) 2003 ONAFRAAT 11

STATUTE:

Drainage Act

HEARING:

March 27, 2003

DATE OF DECISION:

April 29, 2003

2003-11

NEUTRAL CITATION:

2003 ONAFRAAT 11

Elliott Municipal Drain Municipality of Southwest Middlesex

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. Tom Jeffery and the Municipality of Southwest Middlesex under Section 64 of the Drainage Act with regard to the quality of construction of the Elliot Municipal Drain in the Municipality of Southwest Middlesex.

Before:

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

Appearances:

Dennis McCready P. Eng. on behalf of the Municipality of Southwest Middlesex and the Engineer's Report dated June 6, 2001.

Richard Tanner, acting Drainage Superintendent on behalf of the Municipality.

Mr. Murray Jeffery on behalf of Tom Jeffery, appellant.

Mike Cowan, Contractor, respondent.

Harold Boekhoven, assessed landowner.

DECISION OF THE TRIBUNAL

This appeal was heard in Glencoe, Ontario on March 27, 2003. The Municipality of Southwest Middlesex and Mr. Tom Jeffery appealed under Section 64 of the Drainage Act (the Act) with regard to the quality of construction of the Elliott Municipal Drain in the Municipality of Southwest Middlesex (the Municipality)

Mrs. B. A. MacKinnon, 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 engineer’s report dated June 6, 2001 on the Elliott Municipal Drain parties to this hearing. Cowan Farm Drainage was added as a party by the same order. Proof was filed with the Tribunal that all parties had been served with notice of the hearing.

The Background

Prior to the repair and improvement of The Elliot Municipal Drain from the report of Todgham Case Associates Inc. dated June June 6, 2001; the Elliott Drain consisted of open ditch and covered tile sections; the head of the drain was situated in the center of Lot 8 Range 2 N.L.R. The open portion of the drain is connected to the tile drain on the west side of Mayfair Road on the east side of Lot 8, at the centre of Range 2 N.L. R.

The Municipality appointed the firm of Todgham & Case Associates Inc. to prepare a preliminary report for repair and improvement on the Elliott Municipal Drain in accordance with Section 78 of the Drainage Act (the Act) on the Elliott Municipal Drain.

On site meetings were held with assessed landowners. Mr. Harold Boekhoven, of Har-De-Bo Farms situated in east half of Lot 8 of Range 2 N.L.R., intended to systematically tile some of his property. Mr. Boekhoven was concerned that the tile portion of the existing drain would not be able to accommodate the increased capacity of water from his tiles. Mr. Tom Jeffery owner of the property in the west side of Lot 8, Range 2 N.L.R. preferred an open ditch construction which would follow the course of a natural run. Mr. Jeffery was opposed to replacing the old existing tile and favoured the abandonment of the municipal tile drain upstream of his property, as well as the municipal tile drain that was installed on his property.

The Municipality chose the option of following the existing tile drain located in the east half of Lot 8, up to the property line of the Mathewson and Boekhoven properties at the centre of Lot 8 Range 2 N.L.R. The tile portion of the drain was routed westward across the centre of Lot 8 to connect with the open ditch on the west side of Mayfair Road. A new open portion of the drain was routed along the west side of Mayfair Road. The existing tile drain remained part of the drainage works. A catch basin was constructed at the head of the drain and the tile from 1918 was plugged at the centre of Lot 8.

The Municipality adopted the by-law from the engineer's report by Todgham Case Associates Inc. of June 6, 2001 (the report). The report addressed the concerns of the assessed landowners for the routing of the drain, capacity for accommodating water from future connections for tile drainage and the equitable assessment of both the tile and open portions of the drain. The report set out three assessment schedules: one for the open portion; one for the tile portion and one for the future maintenance of the drain.

Mr. Mike Cowan, of Cowan Farm Drainage was awarded the tender to construct the closed portion of the tile drain. Another contractor constructed the open ditch portion of the drain.

The construction of the tiled portion of the drain was completed in September, 2001.

The tiled outlet of the drain was found to be .11 meters below the grade specified in the report dated June 6, 2001.

The Issues

The issues before the Tribunal were:

1. Should the report be amended to reflect the condition of the tile drain as constructed, or should the drain be reconstructed?

2. What amount, if any, should Cowan Farm Drainage contribute to the drain for the expected increased cost of maintenance?

The Evidence

Inspection of the covered portion of the drain under construction

Mr. Dennis McCready P. Eng. of Todgham Case Associates Inc. submitted to the Tribunal his findings and proposal to resolve the grade problems, dated April 15, 2002. Mr. McCready suggested that the Municipality apply to the Tribunal under Section 51 of the Drainage Act to amend the by-law to reflect grade of the drain, as constructed. The proposed resolution also included advice to deepen the open ditch at station 390 which would increase the freeboard where the open portion connected to the covered portion of the drain.

Mr. McCready recommended that the Municipality seeks costs against the contractor (Mr. Cowan) to pay for the additional excavation, increased future maintenance, engineering fees/site meetings and engineering costs related to appeals to the Tribunal.

Mr. McCready told the Tribunal that Mr. John Poole was the Drainage Superintendent for Southwest Oxford. He said that when construction began on the open portion of the drain Mr. Poole asked him to attend at the site and to make an inspection. Mr. McCready said that after his initial inspection the Municipality assumed the responsibility for inspection of the construction thereafter. He said that he noticed pooling of water at the upper end of the drain. Mr. McCready told the Tribunal that he does not know the extent of the field work undertaken by Mr. Poole throughout the construction of both the open and covered portions of the drain.

Mr. McCready submitted to the Tribunal a letter from Mr. Poole dated March 17, 2003 describing the grade problems in the drain. The letter indicated that:

• During the winter of 2001 - 2002 an arrangement was made with the Mr. Cowan to investigate the extent of the grade problems in the drain.

• On April 5, 2002 Mr. Cowan telephoned Mr. Poole to tell him that the grade in the tile drain was .1 meters below that specified in the report throughout the covered portion.

• No municipal employee was present to witness Mr. Cowan's findings.

• Mr. McCready was informed of the April 5, 2002 findings and submitted his response and proposal for resolving the issues.

• A meeting was scheduled for June 28, 2002 to discuss the problem and the proposed solution by Mr. McCready.

• Only Mr. Art Mathewson and Mr. Murray Jeffery attended the meeting, where they supported the solution proposed by Mr. McCready.

• No solution was reached due to a lack of participation by the parties involved.

• Mr. Poole is on sick leave from his duties as Drainage Superintendent.

Mr. McCready said that he still believes that the most practical solution to the grade problem was to apply to the Tribunal for an amendment to the by-law to describe the drain as constructed and to make revisions to the report to reflect the 'as constructed' grade in the covered and open portions of the drain. Mr. McCready said that the cost of any work and engineering fees should be charged to the contractor. He stated that the Tribunal had ruled in two previous quality of construction appeals that non-compliance with tile grades of this order are not acceptable and the responsible party has to suffer the financial consequences.

Mr. McCready said that he was not hired by the Municipality to supervise the construction of the drain. He said that his firm was hired to prepare the report and attend at any possible Court of Revision.

Mr. McCready said that the method of ensuring the proper grade used by practitioners at Todgham Case Associates Inc. is to take elevation readings daily. He said that Mr. Cowan told him that the drain was constructed using laser elevation readings. Mr. McCready told the Tribunal that optimally, the municipal Drainage Superintendent inspects the construction as it progresses; but that the onus is on the contractor to make the proper measurements to ensure that the installation meets the specifications of the report.

Mr. McCready provided the Tribunal with an elevation summary of the existing grades compared to the planned grades from the report, for the tiled portion of the drain. Mr. McCready told the Tribunal that the survey for the grade elevations was conducted by Mr. Richard Tanner and Mr. Dave Scott; both municipal employees. Mr. McCready said that the freeboard between the bottom of the new ditch and the invert of the pipe in the covered section is approximately .15 meters below grade. Mr. McCready explained that according to Publication 29, A Drainage Guide for Ontario, there are maximum and minimum accepted variations in grade calculated against the size of tile used in construction. The specifications in this report are very similar to the provisions of Publication 29. Mr. McCready said that the tolerances for grade variations are acceptable where the capacity of the drain exceeds the required capacity. Mr. McCready told the Tribunal that he did not make any calculations comparing the actual capacity of the drain against the capacity specified in the report.

Mr. Michael Cowan, contractor/owner of Cowan Farm Drainage told the Tribunal that:

• He had been constructing tile drainage systems for over 25 years. Farm tile drainage construction was the bulk of his business but he constructed an average of two or three municipal drains per year.

• The report specified installation of 200 mm tile but it was unavailable and he installed 250 mm tile for the same price. Mr. Tanner and Mr. Scott may not have been aware of the difference in the tile size when they made their grade elevation survey.

• He is familiar with Publication 29 A Guide to Drainage in Ontario, though it is only a guideline.

• He dug up the outlet pipe of the drain in March 2002, thinking that it was excessively sloped but found that this was not the case.

• The conditions were wet in March so that readings for grade were taken by prodding along a 200 meter portion of the bottom of the tile drain.

• He agrees with the findings of the engineer that the grade is .11 meters below the specifications of the report in the covered portion of the drain; however, he does not agree that the low grade will have much impact on the future maintenance of the drain. He believes that it would be reasonable to predict that the drain would need to be cleaned out three times over a 60 year period, as opposed to the engineer's estimate of four times over a 60 year period.

• The drain is functioning well and he is satisfied that there is sufficient freeboard at the outlet.

• He was personally on site at all times during the construction of the drain. A backhoe was used to dig the pipe trench on the east side of Lot 8. He realized after the first day of construction that the grade was below specifications and hoped that he would be able to correct it as construction proceeded. The conditions on the Jeffery and Mathewson properties on the east side of Lot 8 were difficult to work in, as the route of the drain was very curvy, the land was wet and there were several trees and stumps to navigate. The new tile had to be installed over the old tile in some sections. Shots were taken from the leveled bottom of the pipe trench with a telescoping rod to measure the grade elevations.

• Mr. Poole attended at the site on the first day when the backhoe was in use, but he did not take any measurements for elevation.

• It was the usual practice on other municipal drain installations, for the Drainage Superintendents to attend from time to time and take grade elevation measurements.

• The Buckeye Wheel machine was used to complete the tile installation beyond Station 475. The Buckeye Wheel machine had a laser elevation gauge to measure the elevation. The laser gauge is accurate, and shows a discrepancy of less than ½ inch, but only to the degree to which it is manually set to record the elevation.

• Mr. Poole attended the site on one occasion when the Buckeye Wheel Machine was in use.

• It is the usual practice for the Drainage Superintendent to make a report on the drain when construction is finished and to check the elevations. He is not aware if this was done for the Elliott Drain.

Mr. Harold Boekhoven, owner of property in the east half of Lot 8, told the Tribunal that the drain is functioning well as constructed and that his recently tiled property that is connected to the drain is working to his satisfaction.

Mr. Richard Tanner, acting Drainage Superintendent for the Municipality told the Tribunal that he is a Civil Engineering Technologist and the former Drainage Superintendent for the Municipality (formerly, Ekfrid Township). He said that he became the acting Drainage Superintendent for the Municipality in August 2002 after Mr. Poole became ill. Mr. Tanner testified that:

• He has taken the Drainage Superintendent's course sponsored by the Ministry of Agriculture and Food and is familiar with its publications and recommended practices.

• The practice of appointing Drainage Superintendents to inspect/supervise drainage construction is a common practice in Ontario. The Province encourages it, as it reduces the cost of drainage construction.

• It is his professional practice to inspect the construction himself to ensure that the works are constructed according to the specifications. It has not been his experience that the contractor is left to inspect and ensure that the works meet the specifications.

• He does not have personal knowledge of the methods of construction used in the Elliott Drain nor is he aware of extent of inspection of the works, as he was not working for the Municipality at the time of construction. He does however, know of a contractor who consistently uses a laser to site the trench depth at 50 feet intervals.

• He took probe shots to measure the elevation at the outlet of the tile and determined it is deeper than the rest of the ditch at this point. He also took probe shots of the drain from Mayfair Road to the tile outlet near Station 380. Probing measures elevation with only 80% accuracy.

• He does not know the capacity of the drain at present, though he believes that the deviation in grade from the specifications is the maximum allowable.

Costs Associated with Resolving the Grade Problem

Mr. McCready told the Tribunal that the Municipality had not paid Mr. Cowan for his work, though the contractor who constructed the open portion of the drain had been paid. Mr. McCready submitted to the Tribunal a summary of engineering costs for addressing the low grade problem at the hearing. Mr. McCready's submission indicated that the engineering costs were $2,225.64. He submitted that the Municipality might seek to recover costs for the meeting to discuss the amendment of the by-law, the topographic survey of tile and his attendance at the hearing. Mr. McCready told the Tribunal that the costs associated with remedial work would be: $4.29 per meter for excavation along 400 meters of the open ditch which totaled $1700 and $300 to float equipment to the site. Mr. McCready estimated that the frequency of clean out was increased by 1/3, for which he calculated the cost to be an additional $2000 that should be paid by Mr. Cowan. Mr. McCready said that it could possibly be done for less money but that there was no commitment by a contractor for a lesser sum.

Mr. Murray Jeffery, representing Mr. Tom Jeffrey, told the Tribunal that he had inspected the drain recently and that it appeared to be functioning well. Mr. Jeffery said that there was a concern with future maintenance and that the problem would exist as long as the drain existed. He said he was in favour of the tile portion remaining as constructed if monies were advanced to cover the increase in cost of future maintenance.

Mr. Cowan explained that the Municipality had not paid his invoice of November 12, 2001 and that it owed him $7,147. He said that he understood that the Municipality would pay him 80% of the total, deducting 20% for the low grade error. Mr. Cowan said that Mr. Poole telephoned him before Christmas 2001 to inform him that he would not be paid anything until the issue was resolved. Mr. Cowan said that:

• At one time the Municipality suggested that $2,500 would be deducted from his fees. He thought that this was unreasonable.

• He has not attempted to resolve the problems with Municipality.

• He believes he has a responsibility to pay some of the costs associated with resolving the issues but that Mr. McCready's proposal to recover $2,000 from him for increased future maintenance was excessive. He had discussed the amount with a colleague who felt that a sum of $750 to $1,000 would be appropriate.

• The usual practice was for the Municipality to advance 80% of the cost of the materials at the start of construction, pay 17% at the completion of construction and withhold 3% until one year from the date of completion of construction. He has not charged interest to the Municipality on the outstanding fees.

• He wished the Tribunal to dismiss the appeal.

Mr. Tanner told the Tribunal that he does not know what an appropriate estimate for increased future maintenance would be.

There was no proof that the appeal to the Tribunal was commenced within the statutory time limit. Mike Cowan was expressly asked about this, and he consented to the late appeal, if such was the case.

Summations

Mr. McCready said that he couldn't recommend that the Municipality accept the drain as constructed without advising that the by-law is amended and the open ditch bottom is re-graded. Mr. McCready said that the contractor was at fault but that he could have limited the costs of resolving the issue by settling the dispute without a hearing. Mr. McCready maintained that it was the responsibility of the contractor to take the necessary measures to ensure that the tile was installed according to the specifications. He argued that the Municipality was not employed by the contractor to supervise the construction of the drain. He said that he made his proposal for a solution in the best interests of all parties and that Mr. Cowan would be liable for less costs if he agreed to the solution. He said that the Municipality could choose to insist that Mr. Cowan re-install the tile, or withhold his fees in favour of hiring another contractor to re-install the tiles. Mr. McCready explained that it was expedient for the Municipality to apply for an amendment to the by-law, as it would offer protection against possible suits from ratepayers in future.

Mr. McCready asked the Tribunal to order that the costs against Mr. Cowan be paid from the Municipality's general funds as it was unfair to charge the ratepayers on the drain for a mistake that they did not make.

Mr. Cowan stated that he was not confident that the measurements taken by Mr. Tanner and Mr. Scott for the elevation summary were representative of the central portion of the tile drain. He said that he felt that the variation in grade was confined to the beginning and ends of the tile portion of the drain. Mr. Cowan agreed that reinstalling the tile was not a practical solution at this time and that the drain functioned well. Mr. Cowan said that he also agreed with the proposal to amend the by-law, but that he constructed the drain for a very reasonable fee and it was unreasonable to charge him the cost of $2,000 for future clean out when $1,000 was a more realistic figure. Mr. Cowan said that he was not certain who should bear the cost of the hearing.

The Findings

The Tribunal was presented with evidence to indicate that the construction of the Elliott Municipal Drain was not frequently or thoroughly supervised. Mr. John Poole, the Drainage Superintendent, made site visits on at least two occasions though he was not observed to have made any grade measurements. It is not evident that any other municipal employees measured the grades at any time during construction. Mr. Cowan was aware after the first day of construction, that the tile was installed below grade. Though the subsequent probe measurements taken by Mr. Tanner were not 100% accurate, they confirmed what Mr. Cowan already knew. Mr. Tanner's measurements were taken long after construction was complete.

Although there is some uncertainty about the precise grade of the tile along the entire length of the covered portion of the drain, it is clear that the tile outlet is below grade.

The Tribunal finds that there are really only two solutions to the problem, with re-installing of the tile being the least desirable, due to the serious expense to the contractor and the disruption of existing connections from farm tile drainage. This panel agrees with the evidence from all parties that the best course of action to take is to amend the by-law to reflect the as constructed condition of the drain and to provide an allowance to pay for the increased future maintenance cost.

There is disagreement between the contractor and the engineer with regard to the increased cost of future maintenance, but both agree that the drain will need more frequent maintenance than initially scheduled in the report. This is because there is reduced freeboard at the outlet of the covered portion of the drain due to the installation of the tile below grade.

There is also disagreement between the estimate presented by Mr. McCready and the estimate presented by Mr. Cowan. Mr. Cowan is relying on what he was told by another contractor. Mr. McCready’s estimate is reasonable, and was subject to being tested by cross-examination.

The implication from Mr. Cowan was that the municipality should share in the cost because of lack of supervision. The specifications are clear and it is the contractor’s obligation to comply with them. As Mr. McCready pointed out, there is no requirement that the municipality should provide a benefit to the contractor by attending to the supervision. At the same time, it is basic practice for the municipality to provide supervision.

In all the circumstances, the panel is of the view that the appropriate allowance in this case is $1,000. In setting this figure, the panel has taken all the circumstances into account. Clearly, the municipality could have insisted on the tile being removed and re-laid, all of which would have cost Cowan Farm Drainage far more than the $2,000 asked for. Regardless of supervision, the contractor is obligated to comply with the specifications. The estimate of increased expenses is a matter of judgment, including a guess as to inflation in the cost of work over the years and the likely rates of interest. While the contractor is not entitled to supervision services, if supervision had been provided, the landowner’s would have had the benefit of the contractor being required to make an immediate correction, rather than leaving the matter to be discovered until final inspection. The appeal appears out of time, but the contractor has waived any irregularity and the panel is granting an extension of time to regularize the filing of the appeal.

The non-compliance with the specifications necessitated the effort to solve the problem and Cowan Farm Drainage did not co-operate with this. The matter could have been rectified by negotiation and a consent application to the Tribunal under s. 51, instead of a full-scale formal hearing. It is appropriate that the cost of all this should be borne by Cowan Farm Drainage.

The Tribunal finds that the engineer's summary of costs related to the initial investigation to determine the out of compliance matters and preparation and attendance at the hearing is reasonable and acceptable if the engineer will adjust the cost for the actual time spent attending the hearing. Based on the evidence, therefore, the cost of the engineer is assessed at $1,600, which includes all costs to date, plus the preparation of the amended specifications.

ORDER OF THE TRIBUNAL

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

1. The time for filing an appeal under the Drainage Act, s. 64 is extended to December 31, 2003.

2. The Engineer is directed to prepare an amended profile for the Elliott Drain to reflect the as-constructed conditions and to replace the original profile with the amended specifications. The amended report shall be marked on the front cover in red: “Amended pursuant to the order of the AFRAAT, dated [the date of this order]

3. The Municipality is directed to pass an amending by-law, amending By-law 53-2001 to refer to the amended report.

4. Cowan Farm Drainage is ordered to pay the sum of $1,000.00 to the Municipality to be credited to the account of the Elliott Drain maintenance from Station 390 downstream.

5. Cowan Farm Drainage is ordered to pay the sum of $1,600 for the costs of the Engineer associated with the out-of-compliance installation, including investigation, report, Tribunal hearing and preparation of amended profile.

6. Payment by Cowan Farm Drainage of the above amounts shall be by way of deduction of the moneys from the balance owing by the Municipality to Cowan Farm Drainage.

7. The Municipality shall pay the net amount owing to Cowan Farm Drainage within 30 days of the release of this decision.

8. Except as ordered above, 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 29th day of April, 2003.