Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West Guelph, Ontario

Tribunal d’appel de l’agriculture,

de l’alimentation

et des affaires rurales

N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email:Tribunal@OMAF.gov.on.ca

1, chemin Stone Ouest

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email:Tribunal@OMAF.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Lownsbrough and Spray Drains

City of Kawartha Lakes

Lownsbrough and Spray Drains (RE) 2004 ONAFRAAT 18

STATUTE:

Drainage Act

HEARING:

May 4, 2004

DATE OF DECISION:

May 19, 2004

2004-18

NEUTRAL CITATION:

2004 ONAFRAAT 18

Lownsbrough and Spray Drains

City of Kawartha Lakes

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 Stephan Orlob, Oakwood, Ontario under Section 64 of the Drainage Act with regard to the quality of construction of the Lownsbrough and Spray Drains in the City of Kawartha Lakes.

Before:

Terry Denison, Vice Chair; Denis O’Connor, Vice Chair; Jack Young, Vice Chair

Appearances:

Tom Pridham, P. Eng., for the respondent, the City of Kawartha Lakes

Stephan Orlob, appellant

Paul Winn, witness

DECISION OF THE TRIBUNAL

This appeal was heard in Lindsay, Ontario on May 4, 2004. Mr. Stephan Orlob appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act) regarding the quality of work on the Lownsbrough and Spray Drains on his property.

Ms. Sandra Lloyd, Executive Assistant to Councilors, City of Kawartha Lakes (the Municipality) performed the duties of the Clerk of the Tribunal.

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Lownsbrough and Spray Drains parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Statutory Context

Section 64 of the Act states:

Appeal by owner of land

64. Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17, s. 64; 1998, c. 18, Sched. A, s. 1 (3).

Preliminary Matters

Mr. Tom Pridham, P.Eng., the engineer that prepared the report (the Engineer), informed the Tribunal that he intended to refer to a decision of the Ontario Drainage Referee dated November 3, 2000, in which panel member Mr. Jack Young was mentioned. Mr. Orlob stated he believed Mr. Young would be impartial. Mr. Young stated he was not aware of the Referee decision in question.

The furniture in the hearing room was rearranged as one of the parties indicated he had a hearing impediment.

The Background

Mr. Pridham told the Tribunal that work was undertaken on the Lownsbrough and Spray Drains pursuant to a report prepared by his firm, R. J. Burnside and Associates Limited, and dated December 15, 2000 (the Report). He said the work involved the clean out of open ditch drains, removal of shale rock, re-location of a portion of the Lownsbrough Drain off a road allowance, lowering culverts, removing a catchbasin and installing a spillway.

Mr. Pridham explained the Spray Drain is a branch of the Lownsbrough Drain and that both drains crossed the appellant’s property, which is identified by Roll No. 30-184-00 (Orlob property). He said the work on the Oorlob property consisted of the repair and improvement of 627 m of the Lownsbrough Drain and 625 m of the Spray Drain.

Mr. Pridham said the by-law adopting the Report was given final reading on September 24, 2001, the work was tendered, there were four bids, two were much lower than the others and Paul Winn Excavating won the tender because of his record with the Municipality. Mr. Pridham said work on the drain commenced in December 2001. He said that excavation work on the Spray Drain on the Orlob property occurred in February 2002 and leveling of the spoil in September 2002. He said work was undertaken on the Lownsbrough Drain on the Orlob property in the week of September 9-14, 2002.

The Issues

The issues before the Tribunal were:

1. Was the spoil from excavation of the Lownsbrough and Spray Drains on the Orlob property spread in accordance with the specifications in the Report?

2. Were the fences removed to facilitate the movement of equipment on the Orlob property re-established to a reasonable standard?

3. Was the Orlob property adequately re-seeded after construction?

The Evidence

Stephan Orlob, appellant

Mr. Stephan Orlob told the Tribunal that he was concerned that the leveling of spoil and fence replacement was not done to the same standard on his property as it was on his neighbours’ properties. He said he thought the contractor was unprofessional in that he left equipment on the lawn on his property, tore up the lawn, spilled fuel on his property and failed to give adequate notice before entering the property.

Mr. Orlob said he met with Mr. Pridham , the engineer, and Mr. Winn, the contractor, on May 27, 2002 to discuss work that was to occur on his property. He said the removal of beaver dams and the replacement of a culvert were discussed but that there was no discussion of any variance in the spreading of spoil. He said if the engineer and the contractor thought there was a request that the spoil area be varied on his property then they should have communicated this to him in writing. He suggested the municipality should be held to a higher standard than landowners, as it is their business to repair drains.

Mr. Orlob acknowledged that extra work was done to move large stones to the edge of the drain on the Orlob property, but submitted this was done on other properties as well. He said he had heard that the municipality undertook remedial work to level the spoil on other properties but that this courtesy was not extended to him.

Mr. Orlob said his fences were not repaired after the contractor completed his work. He said he had a problem with trespassers and had himself replaced some steel posts to prevent motorized access.

Mr. Orlob submitted a series of photographs taken between SE 09 02 and SE 29 02, and in the week before the hearing. He said the photographs showed:

• Rocks placed at the edge of the drain on three neighbouring properties.

• Spoil leveled evenly on the Dawes property (Roll No. 30-180-00).

• The Orlob property when work was underway on SE 09 02.

• Some of his neighbours’ properties after the work was completed.

• The Orlob property after the work was completed.

• Fencing on the Orlob property.

In response to questions, Mr. Orlob indicated:

• He had expected the spoil to be spread neatly over the 20-30 metre area of the work but that it had been concentrated in a small area.

• More rocks were uncovered than he expected but he had no objection to the rocks being placed at the edge of the drain.

• The photograph taken September 9, 2002 (Photo #6) reflected the current condition of his property.

• The Report did not say his property would be treated differently than others, other than a reference to a culvert.

• On the Orlob property, the Spray Drain runs through a forested area with trees on both sides; the Lownsbrough Drain also runs through a forested area but trees had been cleared on one side.

Tom Pridham, P. Eng.

Mr. Tom Pridham told the Tribunal that his recollection of the MY 27 02 site meeting on the Orolb property was that he agreed to relocate an existing culvert on the Orlob property at the expense of his firm as a goodwill gesture; and that Mr. Orlob said he wanted the new spoil spread on top of the old spoil and not beyond. He said this was not unusual as many owners request this. He said he had no objection to placing the spoil on top of existing spoil, even though it might not exactly meet the specifications in the Report.

Mr. Pridham stated that in his view the work was done neatly on the Orlob property and the spoil was leveled exactly how Mr. Orlob requested it be leveled. He said he did not normally document landowner requests, as it had not been necessary in the past. He referenced a decision of the Ontario Drainage Referee, which he said supported his position.

Mr. Pridham said the specifications in the Report called for spoil banks to be leveled to a depth of 150 mm above the original ground level on open land and 300 mm above the original ground level for forest land. He said the Report also allowed the engineer to make minor changes once the construction work is underway and he considered leveling the spoil over the existing spoil to be a minor change.

With regard to fencing, Mr. Pridham said a section of rail fence had been replaced with page wire fence. He said the contractor did not take down the fence in the other location.

In response to questions, Mr. Pridham said:

• Utilities were not disturbed when work was done on the drain; they appeared to be deeply buried.

• A culvert was moved from the Lownsbrough Drain to the Spray Drain to give access to the back portion of the Orlob property.

• He walked the drain the day before the hearing and it looked fine.

• The Lownsbrough and Spray Drains were 4-5 feet deep on average; the Lownsbrough Drain is 6 feet deep in some locations.

• Both drains carry substantial water volumes and probably flow all year.

• He doubted the date on one of Mr. Orlob’s photographs was correct (Photo #9), as it appeared to have been taken during construction, not after completion.

• Photo #10 depicted the finished work.

• Photo #6 was taken the first day of construction; the contractor shaped the land, evened it with a bucket and seeded it after this photograph was taken.

• He personally walked the drain before a certificate of completion was issued.

Paul Winn, witness

Mr. Paul Winn testified that he was a contractor who had worked on several municipal drains in the Municipality in the past few years.

Mr. Winn said at the MY 27 02 site meeting on the Orlob property, he asked Mr. Orlob about leveling of the spoil. He said Mr. Orlob told him to stay in the existing spoil corridor and keep it out of the field, and by the wooded areas to remove some of the scrubby trees but generally stay in the same corridor that was used in the past.

Mr. Winn said when he came on the property there were T-bar posts with old barbed wire rolled up beside them at the boundary of the Orlob property and the Riddle Property (Roll No. 30-182-00). He said he removed the posts to get onto the property but replaced them when he was finished. Mr. Winn said there was a rail fence at the West end of the Orlob property. He said he replaced the rail fence across the ditch but left a section of page wire fencing adjacent to the drain to allow for easier access in the future.

Mr. Winn told the Tribunal he picked up rocks with an excavator, leveled the area with a small bulldozer and then seeded with a broadcaster a day or so after leveling the ground on the Orlob property.

In response to questions, Mr. Winn indicated:

• There were not many rocks on the Spray Drain; there was a particularly rocky section running approximately 30 metres on the Lownsbrough Drain.

• The land running across the hay field to the bush was heavy clay with particularly large rocks.

• His biggest concerns at the site meeting were the spoil and how to look after the culvert that was to be relocated.

• On other properties, when he was ditching he set large stones to the side of the drainage ditch. On the Orlob property he also went in with an excavator and moved stones too big to lift by hand to the side of the ditch.

• The photograph taken on SE 09 02 (Photo #6) was taken the first or second day he worked on the Lownsbrough Drain on the Orlob property. At that time he was casting excavated material and trying to keep the rocks out of the way.

• He supplied the page wire that replaced rails for one section of fence.

Other

Considerable evidence was brought forth on the construction of an access culvert, issues of notice and entry and beavers/beaver dams. These issues were outside the matter that was appealed.

Summations:

Mr. Orlob said the workmanship on his property was different from that on other properties on the Lownsbrough and Spray Drains because the spoil was concentrated in a small area on his property but evenly spread out on other properties. He said there was some discussion as to what was discussed at the MY 27 02 site meeting and asked the Tribunal to accept his testimony that he did not request different treatment of the spoil. He asked the Tribunal to order that the spoil be spread out and the fences re-established or that an amount of money for remedial work be provided to him.

Mr. Pridham said Mr. Orlob had indicated at the site meeting that he did not want the spoil spread on his field, or more trees cut in the bush, that the spoil was levelled as he requested and that Mr. Orlob was responsible for any further work he now wished to have done. He said the spoil was levelled smoothly. Mr. Pridham said there was no fence on the Spray Drain and that Mr. Winn had re-built the fence on the Lownsbrough Drain with rails and page wire. He asked the Tribunal to deny the appeal.

The Findings

The appellant presented a series of photographs to illustrate the work done along the Lownsbrough and Spray Drains. With regard to the photograph showing the condition of his property taken on SE 09 02 while the work was in progress (Photo #6), the evidence from the engineer and the contractor was that it did not reflect the condition of the work when finished. These witnesses said additional stones had been removed from the spread material in a subsequent pass using an articulating excavator and that the remaining spoil had been further leveled. The appellant did not present evidence to contradict these statements. Under cross-examination, Mr. Pridham indicated that Photo #9 dated SE 29 02 did not represent the final leveling of the excavated material and that he had observed on MY 03 04 that the land was level enough to drive a pick-up truck over the spoil. There was no dispute regarding Photo #10, also dated SE 29 02.

Evidence given as to what transpired at the MY 27 02 site meeting varied. Mr. Orlob’s recollection of the meeting was that it did not include a discussion of the spreading of excavated spoil. Whereas Mr. Pridham’s evidence, supported by the contractor’s recollections was that it did. This does not necessarily mean that one party is not telling the truth, simply that the emphasis of the meeting was different for each of them and they each recollected what was important to them.

The Tribunal accepts the evidence of the appellant that the appearance of his property was not identical to other properties on the drain. However, the properties these drains traverse vary in topography, land type and the presence and proportion of rocks and trees. It is difficult to make direct comparisons to neighbouring lands in this situation.

The Tribunal accepts the evidence of the contractor and the engineer that the work undertaken on the Orlob property was done within the specifications in the Report, although not to the satisfaction of the appellant. The Tribunal notes that the Report allows for minor modifications during construction. This is not an unusual provision and minor variations are traditionally made by the engineer on site during construction to satisfy the wishes of landowners.

The Tribunal finds that the contractor did a satisfactory job of removing fences and replacing them to a similar pre-construction condition.

The Tribunal finds that the lands on which spoil was spread on the Orlob property was re-seeded. The evidence of Mr. Orlob was that some of the newly seeded area grew well and some did not.

The Tribunal finds that the evidence does not support the appellant’s contention that the quality of the leveling of spoil, fence replacement and seeding is unacceptable.

ORDER OF THE TRIBUNAL

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

1. The appeal by Stephan Orlob, Oakwood, Ontario under Section 64 of the Act is dismissed.

2. 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.