Hambly-Sabourin Drain 2001 and Beaulac-Beach Drain 2001 (Re), 2003 ONAFRAAT 30

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:

Hambly-Sabourin Drain 2001 and Beaulac-Beach Drain 2001 Township of Brethour

Hambly-Sabourin Drain 2001 and Beaulac-Beach Drain 2001 (RE) 2003 ONAFRAAT 30

STATUTE:

Drainage Act

HEARING:

November 8, 2002

DATE OF DECISION:

September 29, 2003

2003-30

NEUTRAL CITATION:

2003 ONAFRAAT 30

Hambly-Sabourin Drain 2001 and Beaulac-Beach Drain 2001

Township of Brethour

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 Gary Beach, Belle Vallée, Kenneth Hambly, Belle Vallée and Richard S. Gosselin, Belle Vallée, under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and the Engineer’s Report on the Hambly-Sabourin and Beaulac-Beach Municipal Drain in the Township of Brethour.

Before:

Andrew Osyany, Vice Chair: Yvon Simoneau, Vice Chair; George Klosler, Member.

Appearances:

Al Fraser on behalf of Gary Beach, appellant.

Kenneth Hambly, appellant.

Richard Gosselin, appellant.

Ken Smart P. Eng. on behalf of K. Smart Associates Ltd.

Evelyn Hambly, assessed landowner.

Murray Beach, assessed landowner.

Dorothy White on behalf of the Township of Brethour.

DECISION OF THE TRIBUNAL

This appeal was heard in Belle Vallée, Ontario on November 8, 2002. Mr. Gary Beach, Belle Vallée, Mr. Kenneth Hambly, Belle Vallée and Mr. Richard S. Gosselin, Belle Vallée appealed under Sections 48 and 54 of the Drainage Act (the Act) from the decision of the Court of Revision and the Engineer’s Report dated, July 12, 2002 (the report) on the Hambly-Sabourin and Beaulac-Beach Municipal Drains in the Township of Brethour (the Municipality).

Mr. Roland Lachappelle, 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 July 12, 2002 on the Hambly- Sabourin Beaulac-Beach Drain parties to this hearing. Proof was filed with the Tribunal that all parties had been served with notice of the hearing.

Subsection 48(1) of the Act 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).

Section 54 of the Act states:

Appeal to Tribunal

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. R.S.O. 1990, c. D.17, s. 54 (1).

Notice

(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. R.S.O. 1990, c. D.17, s. 54 (2).

Procedure

(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, c. D.17, s. 54 (3).

Subsequent to the hearing, the Tribunal issued an interim order on February 11, 2003, which provided as follows:

1. Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture is added as a party to the proceedings, as representing the property owners in Quebec, as if they were located within the Province of Ontario.

2. Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture shall be forthwith served by the Tribunal Office with a copy of this order and the exhibits filed in the hearing.

3. Upon the written request of Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture within 60 days of the release of this order, the panel will reconvene the hearing to deal with all issues, so as to allow the participation of Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture regarding all issues.

4. Failing the written request of Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture to reconvene the hearing to deal with all issues, this panel shall receive written submissions from all parties as to the proper method of assessing the costs of the drainage works in regard to the costs properly attributable to the lands in the Province of Quebec.

5. The Tribunal shall appoint a date by which all written submissions shall be filed with the Tribunal office and the Tribunal office shall circulate all written submissions to all parties making written submissions, who then shall have a specified time limit to file written replies with the Tribunal office.

6. Parties may within 60 days of the release of this order make written applications to this panel for clarifications and amendments of this order.

No party has made an application for clarifications or amendments of the Tribunal’s order. A written submission, dated March 14, 2003, and received at the Tribunal Office on April 17, 2003, from the Director, Resources Management Branch, Ministry of Agriculture and Food takes the position that the Tribunal has no authority to order the addition of Her Majesty the Queen in right of the Province of Ontario as a party to this hearing. A copy of this submission is attached to this order as Schedule “A”.

This panel is of the view that its Interim Decision was properly made, and this panel will continue with the process of completing the hearing and rendering a decision. In the event that this panel is in error, then affected parties may make appropriate applications to correct the error.

Because Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Agriculture, has not requested participation in any aspect of the hearing, the only issue on which the panel requires further submissions is as to the proper method of assessing the costs of the drainage works in regard to the costs properly attributable to the lands in the Province of Quebec.

The Tribunal made a second interim order on May 12, 2003, which provided as follows:

1. All parties to this hearing shall be at liberty to file with the Tribunal Office written submissions as to the proper method of assessing the costs of the drainage works in regard to the costs properly attributable to the lands in the Province of Quebec.

2. All written submissions shall be filed with the Tribunal Office on or before June 5, 2003.

3. On June 6, 2003, the Tribunal Office shall circulate all written submissions to those parties who have filed written submissions with the Tribunal Office, and all parties shall have the right to file replies to the written submissions with the Tribunal Office on or before June 20, 2003.

4. This order shall be served by the Tribunal Office by prepaid ordinary mail, fax, or personal delivery upon Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Agriculture and Food. The Clerk of the Municipality shall serve this order by prepaid ordinary mail, fax, or personal delivery on all parties who appeared at the hearing on November 8, 2002.

Further submissions were received by the parties and the panel is now issuing this final order, which incorporates the two interim orders.

The Background

The dimensions of the Township of Brethour in the District of Timiskaming are about five miles by six miles. The easterly limits of the township form part of the boundary between Ontario and Quebec. There are 172 residents. The annual municipal budget is $198,000. There are nine municipal drains in the township. Four of them, including the two that are the subjects of this

hearing, are located in Lots 7, 8, 9, 10 and 11 in Concessions 1 and 2 of the township adjacent to the provincial border.

The natural watershed in this locality is about 960 hectares. Of this, about 320 ha are located in Quebec at the top end of the watershed. The lands are mostly Falardau silty clay loam, fine and without rocks. In the late 1970's very little of the lands in Quebec were cleared, but today about 80% of the Quebec lands have been cleared for farming. Farming operations became more extensive in the township as well, and now about 60% of the township lands have been cleared for farming.

Wright Creek, flowing in a north-south direction, is the natural destination of runoff from the lands in the watershed, which lie east of it. A lot of the existing drainage is to the south, wherein lies the boundary road between Brethour Township and Casey Township and then along the road into Wright Creek.

In 1980, the Hambly-Sabourin Municipal Drain was established. This involved the deepening of an existing north-south ditch between the north halves of Lots 8 and 9, Concession 1, and the construction of a new ditch westerly between the north and south halves of Lots 8 and 7, Concession 1 to outlet into Wright creek in Lot 7. The report is rather laconic. Except for the last 50 m of the drain, the report called for a grade of 0.16%. In the last 50 m the drop was 6 m and rip-rap was called for.

In 1981, the Beaulac-Beach Municipal Drain was established. This drain extended the Hambly- Sabourin Drain upstream to Lot 11, Concession 1. The purpose of the new drain was to provide an outlet for a large natural gully running north-south in the north half of Lot 10, which had caused considerable flooding in the south halves of Lots 9 & 10. In addition, Branch "B" was added to intercept a ditch that had carried water from Lot 11 and easterly Quebec lands, south to the boundary road. A covered drain, Branch "A", was added to drain a low area of about 32 ha in the north half of Lot 10. Branch "B" has a grade of 0.1%, and the main drain varies from 0.2% to a large section at 0.895%. Riprap is called for at the location where Branch "B" enters the main drain.

There is uncertainty as to whether the drains were actually constructed as specified in the reports, but the bottom end of the Hambly-Sabourin Drain started to fail within the first couple of years. No repairs were carried out on either of the drains until recently.

Two additional municipal drains, the Hambly Drain in the south half of Lot 9, Concession 2 in 1980; and the Beaulac Drain along the Concession 1 - Concession 2 line in 1981, were established within the watershed, but they do not outlet directly to either of these drains.

The present situation is that the lower end of the Hambly-Sabourin Drain in lot 7 (currently owned by Mr. Richard Gosselin) is severely eroded. There is now a ravine that reaches depths of 5 m, and the tops of the banks are 10 to 30 m apart. Further upstream there are beaver dams. At the top end of Branch "B" of the Beaulac-Beach Drain in lot 11, the existing crossing keeps getting washed out.

The present report was initiated at the request of the owner of Lot 7, Concession 1 for repairs on the Hambly-Sabourin Drain.

Several options were considered including: compensating landowners for insufficient outlet, installing fencing along the channel banks, installing rip-rap to curtail erosion and abandoning a portion of the channel. The engineer also looked at installing a steel weir in the drain to create more fall, re-grading the channel bottom and closing in the drain and rerouting the drain southward to the Townline Road and then west to outlet into a natural ravine and then into Wright Creek.

The engineer concluded that the best solution was to abandon some of the Hambly-Sabourin Drain, compensate the landowners for insufficient outlet, fence in the channel and provide for riprap as erosion control. At the meeting to consider the preliminary report, Gary Beach requested that the Beaulac-Beach Drain be extended to include the installation of a new culvert on his property, and the Township of Brethour requested repairs under Section 8 of the Act. The final report was prepared and it contains the recommendations to abandon the channel for a length of 366 m from Wright Creek, provide $10,000 to Mr. Gosselin for insufficient outlet, smooth the banks of the channel to an 8 m top width, rip-rap the walls and re-grade the bottom for a length of 321 m which would extend onto Lot 8.

The portion of the Hambly-Sabourin Drain that crosses Lot 8 is in good repair and has recently been cleaned out. The adjoining Beaulac-Beach Drain that crosses Lot 9 is in need of brushing, over the 100 m extending onto Lot 10 and the removal of beaver dams. A culvert under the road that provides access to the property of Gary Beach in Lot 10 often washes out in spring and after heavy rains. The report recommends that a helper culvert be installed in the drain beside the existing 5-foot diameter pipe located on the Gary Beach property.

The assessments for the work are complicated by the fact that the watershed drains lands in Quebec but those lands cannot be directly assessed in the report. The engineer produced several assessment schedules. One of the assessment schedules reflects the 2/3 grant from the Province of Ontario for the works if the Quebec lands in the watershed were to receive the grant; another shows the assessments where there is no grant for the Quebec lands in the watershed. The revised report dated July 12, 2002 contains detailed assessment schedules showing the breakdown for wooded and cleared land as well as roads.

The Issues

In general terms, both the proposed work and the assessment sparked some controversy. The background factors that are involved include the following:

• originally the two drains appear not to have been adequately designed;

• the Hambly-Sabourin drain was not an adequate outlet for the Beaulac-Beach drain;

• the two drains appear not to have been properly assessed out originally in that some lands were included that should have been excluded and some lands were excluded that should have been included;

• had repairs been carried out promptly, the cost of remedial work perhaps would now be less: and

• a third of the watershed is in Quebec and not directly assessable.

The specific questions addressed by the hearing and the consider­ation can be stated as follows:

1. What is the appropriate level of repair to the Hambly-Sabourin Drain?

2. What is to be done with the part of the Hambly-Sabourin Drain that is not going to be repaired?

3. What work should be done in regard to the crossing on lot 11, Concession 1?

4. Should some of the water from the Beaulac-Beach Drain be diverted to the Townline boundary road between Brethour and Casey Townships?

5. What are the appropriate assessments of the various components of the proposed work?

6. Are the allowances properly calculated?

The Evidence

Appropriate Level of Repair to the Hambly-Sabourin Drain

Mr. Ken Smart testified that he had met with the local landowners on nine different occasions to present several different solutions to the drainage problems. The Hambly-Sabourin Drain had never been maintained until recently, though this is not the only reason for the flooding in the spring time and after heavy rains. Mr. Smart said:

• The Hambly Sabourin Drain should have been maintained and a new schedule of assessments made, when the Beaulac-Beach Drain was connected to it.

• Wright Creek is a sufficient outlet for the Hambly-Sabourin Drain, but the ox-bow shape of the waterway contributes to erosion.

• If no work is done on the Hambly-Sabourin Drain, erosion at the section just upstream of Wright Creek may stabilize somewhat, but erosion would continue at the downstream portion.

• He considered the options of paying allowances for a section of the drain that could responsibly be abandoned, or assessing costs to install works to stop the erosion.

• He believes that it would be irresponsible to do nothing and abandon the drain.

With regard to the issue of appropriate level of repair to the Hambly-Sabourin Drain, Mr. Smart told the Tribunal that there were various options, costing from $54,500 to $200,000. He said he evaluated each option on the basis of benefit-cost analysis. In each case he determined the maximum portion of the costs that could be assessed out to the Gosselin property, and then compared it with the expected benefits. In calculating the benefits, Mr. Smart considered the value of land lost each year to erosion, the value of lost crops, the provision of future replacement of a fence to protect the ravine and the cost of avoiding the reconstruction of tile outlets. These come to an annual benefit of $700 to the Gosselin properties. He compared this amount with the dollar value of the notional interest yield of the assessment to the Gosselin property, were the moneys invested. This analysis was not done in respect of any other property. Mr. Smart concluded that only option 1 was cost beneficial.

Option 1 calls for abandoning a section of the Hambly-Sabourin Drain in Lot 7, Concession 1 from its outlet into Wright Creek to a point 437 m from the outlet, and paying an allowance for insufficient outlet to the Gosselins, owners of the property in Lot 7, Concession 1. The insufficient outlet allowance would compensate the Gosselins for a projected loss of .04 ha of land per year due to erosion. The allowance would cover the estimated costs of repairs to tile drains and the construction of a fence along the channel with provision in the report for the construction of the fence by a contractor or by the property owner, at his own choosing.

Mr. Kenneth Hambly told the Tribunal that Mr. Gosselin was aware of the extent of the erosion at the time that he purchased the property in 2000.

Mr. Gosselin said that he had purchased the properties in the north half of Lots 7, 8 and 9 in 2000. He said:

• He is not certain how much property he has lost to erosion in 2001.

• He believes that about three acres were lost to erosion in 2000.

• He is in agreement with the proposed works and the proposed allowance for insufficient outlet for his properties in Lot 7.

• He understands that there will be further erosion in any portion of the drain that is abandoned.

Status of the Portion of the Hambly-Sabourin Drain that will not be Repaired

Mr. Smart said that he had considered abandoning the portions of the Hambly-Sabourin Drain that lay across Lot 7 or abandoning the sections across Lots 8 and 9. He told the Tribunal that:

• If the sections in Lots 7, 8 or 9 were abandoned, the conditions in the upstream portions of the Kenneth Hamby Drains and the Beaulac-Beach Drain would only worsen.

• If any sections of the Hambly-Sabourin Drain were abandoned, it would be necessary to provide an allowance to all affected landowners.

• He understood that Mr. Gosselin wished to continue some of the work of re-sloping the ditch banks and installation of rip-rap himself.

• He does not believe that beavers would be attracted to the portion of drain in Lot 7 that was proposed to be abandoned as the 1% grade would create a flow strong enough to wash away debris.

Mr. Smart’s report recommends that the most westerly 366 m of the drain at the outlet be abandoned and that no work be done on that section as part of this project. However, the owner would be paid up to $6,500 for any approved re-grading that he does in this section privately. In addition, the owner is to be paid an allowance of $20,000 for insufficient outlet.

Scope of work on Gary Beach Access Culvert, Lot 11, Concession 1

Mr. Smart testified before the Tribunal that the access culvert on the Gary Beach property was washed out and that it was proposed in his report of July 12, 2002 to install a helper culvert and rip-rap to support the culverts. Mr. Smart said that it was proposed to brush the channel downstream of the crossing and to remove the beaver dams presently obstructing the channel.

• His findings indicated that the fall in terrain from the point where Branch B of the Beaulac-Beach Drain begins and where the culvert lies is 12 to 20 inches.

• Branch B of the Beaulac-Beach Drain was constructed in order to connect the Gary Beach property to the system.

• There is a significant beaver dam obstructing the drain which creates a fall of 8 feet from the water level in the dammed area to the water level to be found in the free flowing section of the drain.

• The profiles in his report of July 12, 2002 and the Sutcliffe report of 1981 indicate a fall of 500 mm from the access culvert to the beginning of Branch B of the Beaulac-Beach Drain. There is a plunge pool downstream of the culvert.

• He was aware that Mr. Gary Beach was opposed to any work being done on the drainage system except for work on his access culvert.

• He was aware that Mr. Gary Beach felt that he should be compensated for crop losses from being unable to access a part of his property, but it was not the responsibility of the engineer to estimate that loss. The access culvert was not part of the municipal drain at the time it was first installed.

• A flow estimate of the Beaulac-Beach Drain indicated that the present culvert could accommodate a two to five year storm event.

• The solution for preventing a wash out of the Gary Beach access culvert would be to install a pipe large enough to accommodate a 100 year storm event, or as proposed in his report, the access culvert and helper culvert would have to be buttressed by rip-rap. The available provincial grants would not pay for a pipe large enough to accommodate a 100-year storm event.

• The systematic tile drainage in the portion of the watershed upstream of the Gary Beach property has increased the amount of surface flows onto the Gary Beach land. The run-off due to systematic tiling enters the drain at high rates of speed and erodes the banks.

Mr. Fraser told the Tribunal that:

• Prior to the construction of the Beaulac-Beach Drain in 1981, there were natural watercourses that carried the water flowing from the north and east of the Gary Beach property away to the south toward the Townline Road.

• Mr. Gary Beach is certain that the installation of another helper culvert at the crossing will not prevent future wash outs.

• Due to continual wash-outs, 64 acres of property have been inaccessible for several years and the land has returned to brush.

• Mr. Gary Beach does not wish to be included in the drainage scheme at all. Mr. Gary Beach would like to be compensated for lost crops and lost land due to flooding and erosion and to be exempt for being assessed on the proposed works and any future maintenance.

• Mr. Gary Beach signed a petition for a drainage works as he believed this was the only way that he would be able to make his wishes known to the Tribunal.

• The fall in the terrain is 8 feet over 300 feet at the point where Branch B of the Beaulac-Beach Drain begins, and where the access culvert on the Gary Beach property lies.

• Water flows through the drain at such a rate that the sides are being eroded and the sides are continuously caving in.

• The up-stream work under the Sutcliffe report of 1981 did not improve drainage on the Beach property because the branch of the Beaulac-Beach Drain downstream from the Beach property was already overtaxed.

Diversion of Water from Beaulac-Beach Drain to the Townline Road at Brethour and Casey Townships

Mr. Fraser told the Tribunal that the Gary Beach property was closest to the Quebec lands and that there were a number of natural gullies that drained the Quebec lands. Mr. Fraser explained that the Gary Beach property was situated at the convergence of the natural gullies draining the Quebec lands. Mr. Fraser told the Tribunal that in 1981 when the portion of the Beaulac-Beach Drain was constructed across Lots 9 and 10, Mr. Gary Beach opposed the works and that the Municipal Council responded by promising to repair any damage to his access bridge that resulted from flooding. In the 1980's. He said that The Municipal Council of the Township of Brethour accepted monies from the Ministry of Transportation for construction of a berm on the Gary Beach property to prevent water from flowing naturally southward to the Townline Road. He stated that it is not clear under what legal authority the berm was constructed and there are no minutes of any council meetings about the matter.

Mr. Fraser explained to the Tribunal that the 1981 Sutcliffe Report described the flow of water from the Quebec lands as being drained through two natural gullies which ran southward to the Townline Road. He said from there the water makes its way into Wright Creek. Mr. Fraser said that the connection of the drain from the Quebec lands has only served to increase the speed and rate of the flow of water across the access bridge at the Gary Beach property. Mr. Fraser submitted a photograph of the access bridge taken November 2002, where the access culvert is 3/4 filled with water. Mr. Fraser said that Mr. Gary Beach had made several attempts to maintain his access bridge; beginning in the early 1970's when he installed a 16 feet long pipe which was washed out in 1982. Mr. Fraser said that after the loss of the 16 feet long pipe, Mr. Gary Beach installed a 32 feet long bridge which was useable for about three years. Mr. Fraser said that in 1990 Mr. Gary Beach had installed a culvert measuring 5 feet by 22 feet which was washed out on several occasions and was now un-useable.

Mrs. White, Councilor for the Township of Brethour, spoke on behalf of the Township. Mrs. White told the Tribunal that the Ministry of Transportation had given the Township $19,000 to construct a berm to send the water westward on the Beaulac-Beach Drain and that it would create a financial burden on the Townships of Brethour and Casey to create a structure to re-direct the water south to the Townline Road.

Mr. Smart explained to the Tribunal that he does not have the authority to alter the course of the Beaulac-Beach Drain under Section 78 of the Act, the section under which the proposed improvements contained in his report dated July 12, 2002 had been ordered.

Mr. Smart said that if Mr. Gary Beach's property were removed from the scheme there would be 50 ha less property to assess against the cost of the works. He told the Tribunal that the cost of the proposed work on the Beaulac-Beach drain would be subtracted from the total cost of the project and everyone else on the drain would have to pay more in assessments. He said that the Beaulac-Beach Drain would benefit by having its watershed reduced by 40%.

Assessment of the Various Components of the Proposed Work

Mr. Smart explained to the Tribunal that the assessment schedule was very complicated due to the Quebec lands within the watershed. He said that he had based the assessment schedules on a few different scenarios for assessment against the Quebec lands. Mr. Smart said that he had prepared the schedules of assessment for the three scenarios; one calculated with 1/3 of the Quebec assessments added with no grant, one calculated with 1/3 of the Quebec assessments with grant and one schedule based calculated with no Quebec assessments added. Mr. Smart said that the provincial government has agreed to provide grants for 2/3 of the assessment against the Quebec lands. Mr. Smart explained to the Tribunal that he had prepared detailed breakdowns of the assessments and appended them to his report. The breakdowns also show the costs of each component of the drainage scheme with the assessments and separate appendices for the maintenance schedules. Mr. Smart said that the lands in the watershed were assessed for different run-off rates for lands that were wooded, cleared and paved roadways.

Mr. Smart explained to the Tribunal that in conversation with Mr. Gosselin he understood that Mr. Gosselin’s main concerns were with the south half of Lot 10 being assessed for 52 ha when the Beaulac-Beach Drain was first constructed.

Mr. Smart said that there is only one appeal against assessment and that he believes that his scheme is the least unacceptable and that there may have been legal costs associated with not proceeding with the works. He said that the assessments against the Gary Beach property were for rip-rap and concrete at the access bridge and for work downstream.

Mr. Smart told the Tribunal that there are only a few drains in Brethour Township and that the Hambly-Sabourin Drain and Beaulac-Beach Drain are not typical because they were constructed to cause water to flow in an unnatural direction and the degree of fall at the outlet is steeper than what might be found in other drainage works. Mr. Smart explained that when the drains were first constructed the apportionment of assessment for benefit was higher due to the type of use of the lands in the watershed and the size of the watershed. Mr. Smart said that he would have assessed a higher outlet cost to the Beaulac-Beach Drain if he had been the engineer at the time of construction. Mr. Smart said that in his opinion the assessments compared to the allowances for land lost due to erosion are reasonable. He told the Tribunal that rip-rap on the Hambly-Sabourin Drain on the Gosselin property should have been installed at the time the drain was constructed. Mr. Smart said that the two drains were initially undersized and poorly designed which resulted in higher costs today than if the job had been done properly the first time. The initial assessments were also in error in that some lands were wrongly excluded, while other lands were wrongly included.

Mr. Smart said that there was a cut-off benefit assessed against the Gary Beach property and other properties in the original report on the Beaulac-Beach Drain. Mr. Smart said that his view was that this type of assessment was once-and-for-all. He said that in his view he could not assess part of the work under this project to those owners who had been assessed for benefit by cut-off in the original reports as a further benefit by cut-off.

Mr. Smart assessed the work on the Hambly-Sabourin Drain in the proportion of 7.9% statutory benefit, 92.1 % outlet liability and the work on the Beaulac-Beach Drain in the proportion of 64.85% statutory benefit, 35.15% outlet liability. On both drains statutory benefit assessments are done on a per metre basis, at varying rates on different portions of the drains with certain lump sum items added in. On the Beaulac-Beach Drain, 40% of the cost of the culvert is assessed to the owner as statutory benefit. The total statutory benefit to the lands on Lot 7 amounts to $6,000, while the cost of construction is in excess of $48,000.

Mrs. White told the Tribunal that in 1980 and 1982, when the Hambly-Sabourin and Beaulac-Beach Drains were constructed, there was very little systematic tile drainage in the lands in the watershed draining from Quebec. Mrs. White explained to the Tribunal that the increase in systematic tiling in Quebec has resulted in more water flowing into the drains than they were originally constructed to accommodate. Mrs. White said that the Township had approached the then Minister of Agriculture regarding the financial burden of assessment for the drainage of the Quebec lands on Ontario ratepayers and that the response had been encouraging, however, the current Minister had indicated that financial assistance would not be possible.

Mrs. Evelyn Hambly told the Tribunal that the properties assessed on the drain were devalued due to the burden of the assessments.

Mr. Hambly testified before the Tribunal that he thought that the cost of $6,500 to re-grade the ditch bottom and slope the sides of the Hambly-Sabourin Drain in the west half of Lot 7 was excessive for what he believed was only landscaping. Mr. Hambly said that the proposed installation of rip-rap was to stabilize the ditch sides to accommodate the tile that outlet from the Gosselin lands into the drain. Mr. Hambly said that it was unfair to expect neighbouring landowners to bear this assessment as well as the cost of Mr. Gosselin's allowance. Mr. Hambly stated that many of the assessed landowners were on fixed incomes and that the assessments would create undue hardship.

Mr. Hambly told the Tribunal that he understood that some work was necessary but that he wished that the side slopes and ditch bottom would be left unimproved and that it was not necessary to use as much rip-rap as was proposed, to stabilize erosion. Mr. Hambly submitted to the Tribunal, that the banks of Wright Creek that passes through the Gosselin properties are equal in slope to the sides of the ditch but that Mr. Gosselin has never previously expressed concerns about the steepness of the creek banks. Mr. Hambly explained to the Tribunal that water from his property flowed through a private drain which outlet into a gully and ran toward the County Road #7. Mr. Hambly acknowledged that some of the water from his property flowed across the Gosselin properties in Lots 7 and 8 and then into the drain.

Mr. Gosselin told the Tribunal that he wished the water to take its original course. Mr. Gosselin submitted to the Tribunal that he believed that the original petitioners for the works should be responsible for the costs, namely Mr. Bruni and Mr. Jack Beach.

The Calculation of Allowances

Mr. Gosselin told the Tribunal that he understood that an allowance of $10,000 was be paid to him as an allowance for the land that he would lose due to continued erosion as it was proposed to abandon a section of the drain.

Mr. Smart said that Mr. Gary Beach was to receive an allowance of $1,500 because concern about future overflow was not totally ruled out in the scheme. Mr. Smart told the Tribunal that:

• $200 per property roll number was allowed on either side of the drain in Lot 7 and the West 1/2 of Lot 8 for right of way under s. 29 of the Act on the Hambly-Sabourin Drain.

• The damage allowance under s. 30 of the Act for crop loss, equipment access, soil compaction and possible tile damage on the Hambly-Sabourin Drain was $3,600 for the Gosselin properties in Lot 7, $800 for the Gosselin property in Lot 8 and $400 for the Jack Beach property in the West half of Lot 8.

• Under s.32 of the Act, an allowance is to be granted for insufficient outlet. This applies in the case of the property in the west half of Lot 7. Mr. Smart calculated that 2 acres had been lost, valued at $2,500 per ha. Mr. Smart then estimated that each year 0.09 of an acre would continue to be lost to erosion, the value of which is $90. Therefore he allowed the sum of $4,000 from which the interest would notionally cover this yearly loss. The cost of repairing tile outlets and surface runs was going to be $5,000 but because part of the channel is going to be rip-rapped, he reduced this to $3,000. Because of the erosion, the tile outlet will have to be repaired periodically, and each time the cost would be $1,500. Factoring all these considerations together, Mr. Smart provided an allowance of $10,000 to the Gosselin lands in Lot 7. Where lands are given an allowance for insufficient outlet, the by-law adopting the report is registered on title pursuant to s. 68 of the Act.

Mr. Smart said that paying a landowner an allowance for insufficient outlet is a responsible method of reducing construction costs and future maintenance costs.

Mr. Keith Hambly told the Tribunal that the Hambly-Sabourin Drain was working well in its current condition and that he believed the allowances to the Gosselin lands for land lost due to erosion was excessive. Mr. Hambly maintained that Mr. Gosselin had purchased the property in 2000 and that he was fully aware of the problems due to the erosion at the time.

The Findings

Appropriate level of repair of the Hambly-Sabourin Drain

It is the finding of this panel that the original designs of the Hambly-Sabourin and Beaulac-Beach drains were not adequate to address the then existing conditions or the needs that could be anticipated. It is not clear if the drains were, in fact, constructed according to the specifications. A lot of development has taken place since the early 1980’s and most of the Quebec lands have been cleared and brought into agricultural production with a lot of tile drainage. This would not have been predictable in the early 1980’s.

Furthermore, the drains had not been maintained, and this lack of maintenance on the west half of Lot 7 means that the cost of restoring the Hambly-Sabourin Drain today is significantly higher than it would have been some years ago. It is to be noted that any one of the owners on the drain could have requested the municipality to maintain the drain, but no such request seems to have been made for decades.

Having regard to this state of affairs, is it appropriate that the Hambly-Sabourin Drain be repaired or rebuilt to the standards it should have been built to when it was established?

This panel agrees with Mr. Smart’s design of the drainage works, as being one that is a fair solution in the circumstances. This panel takes the view that the evaluation of the various alternatives has to consider the overall cost of the proposal as against the overall benefit to the drainage area. If there are individual inequities, then the assessment system adopted by the engineer must be modified to adjust for the inequities. However, if the overall benefit does not justify the overall cost, then the proposal needs to be modified.

This panel finds that, bearing in mind the deterioration of the drain, the inadequacy of the original design, and the cost of restoring the drain to the original standards, it is not appropriate to require restoration of the drain to the original standards.

Status of the part of the Hambly-Sabourin Drain that is not going to be repaired

This panel is of the opinion that it is not appropriate to abandon the lower 366 m of the drain. It is clear that work is to be done in this area, and if that is so, the lands on which work is to be done should be part of the drainage works. There are reasons also why in the future it may be necessary for the Hambly-Sabourin Drain to have a legal outlet to Wright Creek. Much of the lower 366 m of the drain appears to have stabilized already. The panel is of the view that the engineer can develop a suitable description for the lower 366 m to take into account the accumulated and expected erosion and stabilization and to prescribe the appropriate level of maintenance. In this instance the panel does not see a conceptual contradiction between granting an allowance for insufficient outlet, while at the same time retaining the drain through the property. However, as the point was not fully argued, this panel does not wish to be taken as settling the principle once and for all.

Scope of work at the Gary Beach crossing on Lot 11, Concession 1

The Tribunal agrees with Mr. Smart’s design. No reasonable alternative was proposed. In the opinion of the Tribunal the proposed works have been well designed to accommodate the expected flow of water and the engineer has made great effort to meet with the affected landowners to apprise himself of their concerns and to design the works and accompanying schedules while being mindful of their wishes for low assessments and preferences regarding the routing of the drain. The Tribunal concurs with Mr. Smart’s proposal for installing a helper culvert and rip-rap at the Gary Beach access bridge. While this solution will not prevent future flooding, it is assured that the structure will remain intact through seasonal and weather related overflows. The proposed work at the access bridge is cost effective and addresses the problems of year round access to the north part of the Gary Beach property.

Diversion of water from the Beaulac-Beach Drain to the Townline Road

The natural flow of water was changed by the establishment of both drains. With regard to the direction taken by the original engineer in constructing the Beaulac-Beach Drain, the Tribunal finds that the east-west orientation of the drain is preferable to a north-south direction, for even though the natural gullies ran southward in Lots 10 and 11, the safety of the Townline Road would have been severely threatened if the drain had been constructed to follow a north-south route as there was potential for flooding in spring and after significant rain falls. The routing of the drain is proper as it is an agricultural drain and lies on lands that it serves and protects the Townline Road from damage. It is unfortunate that the drain was not constructed with more erosion preventing materials such as lining the channel at some sections with rip-rap.

The Tribunal understands that Mr. Gary Beach has been inconvenienced by the continued washout of access bridges that he has installed at his own expense, however; the Tribunal finds that the drain is properly located and to disconnect Mr. Gary Beach from the system would not prevent the necessity of proposed work at his property and on sections of the drain further downstream.

Assessment issues

The panel agrees with Mr. Smart that the two drains were not assessed out properly in the first instance. The current project must be properly assessed out. However, past errors cannot be compensated for now by over-assessing those who had been under-assessed in the past.

Mr. Smart views the project as being driven predominantly by outlet needs. He assessed the work on the Hambly-Sabourin Drain in the proportion of 7.9% statutory benefit, 92.1 % outlet liability and the work on the Beaulac-Beach Drain in the proportion of 64.85% statutory benefit, 35.15% outlet liability. On both drains statutory benefit assessments are done on a per metre basis, at varying rates on different portions of the drains, with certain lump sum items added in. On the Beaulac-Beach Drain, 40% of the cost of the culvert is assessed to the owner as statutory benefit. The total statutory benefit to the Gosselin lands on Lot 7 amount to $6,000, while the cost of construction is in excess of $48,000.

This panel reiterates that statutory benefit is not to be calculated on a per metre basis. The Act mandates that each property be looked at individually. It is true that quite often there are similar properties similarly situated, varying perhaps only in the length of frontage on the drain, and a per metre comparison may be a useful way to test the fairness of the assessment.

This panel is of the opinion that the engineer has not given sufficient weight to the statutory benefits received by the properties on the Hambly-Sabourin Drain, and that an overall allocation of 30% to statutory benefit and 70% to outlet liability should have been made.

In this particular case the panel is of the view that due to the special nature of the Beaulac-Beach Drain and the circumstances, benefit by cut-off is to be assessed in these works.

It is clear that the Quebec lands should bear approximately 20-25% of the total cost of the project. The Act requires the engineer to assess out the costs against the lands and various authorities in the drainage area that derive benefits from the drainage works or are responsible for extra costs in the construction of the drainage works. Although not mentioned in the Act, it is clear that the Drainage Act does not apply outside of Ontario.

The Tribunal was told that this is the only drain in Ontario which drains lands in Quebec, without there being any contiguous drainage works in Quebec. s. 122 of the Act deals with some trans-boundary issues as follows:

Interprovincial drainage works, from Ontario into adjoining province

122.(1) Where it is considered necessary or expedient to extend a drainage works constructed under this Act from Ontario into or through lands in an adjoining province, or to extend a drainage works from an adjoining province into or through lands in Ontario, the Lieutenant Governor in Council may authorize the Minister to enter into an agreement with a designated officer of the adjoining province as to the proportion of the cost of any drainage works in the adjoining province to be borne and paid by Ontario and as to the proportion of the cost of any drainage works in Ontario to be borne and paid by the adjoining province. R.S.O. 1990, c. D.17, s. 122 (1).

Apportionment of cost

(2) Where such a drainage works extends from Ontario into or through lands in an adjoining province, the Minister may order a local municipality in Ontario in which the lands affected by the drainage works are situate to provide funds to pay for the proportion of the cost of the drainage works in the adjoining province to be borne and paid by Ontario, and thereupon this Act applies with necessary modifications to such drainage works. R.S.O. 1990, c. D.17, s. 122 (2).

Extension of drainage works from adjoining province

(3) Where a drainage works extends from an adjoining province into or through lands in Ontario, the Minister may order a local municipality into which the drainage works extends to provide for the construction of the necessary drainage works, and thereupon this Act applies with necessary modifications to such drainage works, and the

contribution to the drainage works from the other province shall be paid to such local municipality on the completion of the drainage works. R.S.O. 1990, c. D.17, s. 122 (3).

The situation in the present case is not exactly covered by the provisions of s. 122. The Drainage Act was intended as a complete code in respect of drainage matters and between the Tribunal and the Drainage Referee, it appears that the legislative intention was to exhaust the entire issue. Since the passage of the Drainage Act, the Tribunal and the Drainage Referee have consistently filled in any apparent gaps in order to give effect to the legislative intent of a complete code.

Because this case represents one of the apparent gaps, the panel is of the view that the mechanism for dealing with this situation should approximate the provisions of s. 122 (3).

The legislative intent is that the local landowners should not pay for other lands’ appropriate share of the drainage works and that they should pay for their fair share of extra-provincial drainage works. The legislative intent requires the interplay of the Lieutenant Governor in Council or the Minister of Agriculture and Food.

The Engineer should prepare an additional schedule for construction and maintenance which assesses the share of the Quebec lands to Her Majesty in right of the Province of Ontario. In principle, this is no different from assessing Her Majesty in respect of Provincial highways. For the sake of completeness, the final report should contain the existing schedules (revised in accordance with this order) and these new schedules.

Allowances

Various property owners gave the opinion that the allowances given to the Gosselin lands were excessive. However, the Tribunal believes that the engineer’s approach was reasonable and fair and yielded a fair and reasonable result. The engineer considered the various relevant factors, and used reasonable multipliers.

The following consolidates the surviving salient parts of the Interim Orders of the Tribunal with the orders flowing from this decision.

ORDER OF THE TRIBUNAL

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

1. Her Majesty the Queen in the right of the Province of Ontario as represented by the Minister of Agriculture is added as a party to the proceedings, as representing the property owners in Quebec, as if they were located within the Province of Ontario.

2. The Council of The Corporation of the Township of Brethour is directed to refer the report on the Hambly-Sabourin Drain 2001 and the Beaulac-Beach Drain 2001 back to the engineer for reconsideration of the project and in particular the following items:

a) The lower 437 m of the Hambly-Sabourin Drain shall not be abandoned, but a description of the drainage works for that section shall be prepared taking into account the present state of the works and the expected erosion.

b) The overall proportion of statutory benefit to outlet liability on the Hambly-Sabourin Drain shall be 30:70.

c) Each property on the two drains shall be individually assessed for statutory benefit, rather than by the application of a per-metre charge.

d) Benefit by cut-off shall be assessed to the properties that benefit by the existence of the drainage works.

e) The appropriate share of the Quebec lands on the two drains shall be assessed to Her Majesty in Right of the Province of Ontario

f) The amended Engineer’s Report shall have all the current schedules (amended in accordance with this order) as well as the schedules referred to in the previous subparagraph.

g) The amended Engineer’s Report shall be marked on the front cover with the following: “Amended in accordance with the order of the AFRAAT, dated September 29th, 2003”

h) The normal procedure prescribed by the Drainage Act shall apply to the Amended Engineer’s Report, except as otherwise provided by this order.

3. The non-administrative costs of the municipality with respect to this appeal shall form part of the cost of the drainage works. Except as ordered above, all parties are responsible for their own costs. Attention is drawn to s. 73 of the Act.

4. In the event of appeals to the Tribunal from the amended report or further applications to clarify or modify this order, this panel remains seized of this case.

Dated at Shelburne, Ontario this 29th day of September, 2003.