Agriculture, Food and Rural Affairs Appeal Tribunal
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: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:
Walker Drain Improvement - 2001
Municipality of Thames Centre
Walker Drain Improvement – 2001 (RE) 2004 ONAFRAAT 07
STATUTE:
HEARING:
May 14, 2003
DATE OF DECISION:
February 13, 2004
2004-07
NEUTRAL CITATION:
2004 ONAFRAAT 07
Walker Drain Improvement – 2001
Municipality of Thames Centre
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF:
A request by the Municipality of Thames Centre, pursuant to Rule 29 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal, that the Tribunal review its decision of May 14, 2003 with respect to the appeal to the Tribunal by:
K. Loucks K. Dimtrick Barbara Reid V. Chanyi
G. Dewit Paul Sinclair Jerry Baker T. Buys
Jacalin Ramsay R. Zweers W. Zweers S. & C. Fiedler
Mike Leal R. & L. Vanbesien P. Reid Richard Tipping
Shelley Wouters Tony Moonen Margaret Mitchell Frances M. Strothard
under Section 48 of the Drainage Act from the engineer’s report on the Walker Drain Improvement –2001 in the Municipality of Thames Centre.
Before:
Andrew Osyany, Vice Chair; Jack Young, Vice Chair; Bill Olson, Member
Appearances:
David Broad, counsel, Municipality of Thames Centre
Paul Elston, P. Eng., R.J.Burnside & Associates Ltd., engineer who prepared the report
Allen Budden, representing Margaret Mitchell, assessed landowner 15 Charles St.
Carl Gillespie, assessed landowner, 19 Charles St.
Gerry DeWitt, assessed landowner, 26 Charles St.
Gerry Baker, assessed landowner, 14 Charles St.
DECISION OF THE TRIBUNAL
This review of the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) decision dated May 14, 2003 on the Walker Drain Extension - 2001 was heard in Dorchester, Ontario on December 18, 2003. The Tribunal, on Nov 13, 2003, agreed to review its decision dated May 14, 2003 on the grounds that new evidence, which was not previously made available to the Tribunal, should be considered.
Michelle Casavecchia, Clerk of the Municipality of Thames Centre (the “Municipality”), performed the duties of the Clerk of the Tribunal. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
The Background
The proceedings in this matter are summarized below:
Date of Proceeding
Description
Date of Decision(s)
April 17 2002
Original hearing (First Hearing)
May 29 2002
Written request
Request for review of May 29 2002 decision
Sept 13 2002
Oct 16 2002 and Feb 18 2003
Hearing to review May 29 2002 decision (Second Hearing)
Interlocutory Nov 04 2002 Final May 14 2003
Written request
Request for review of May 14 2003 decision
July 25 2003
Written request
Second request for review of May 14 2003 decision
Nov 25 2003
Dec 18 2003
Hearing to review May 14 2003 decision (Third Hearing)
Feb 13 2004
An overview of the proceedings is given in the Findings.
Preliminary Matter
The Tribunal pointed out that one of the Tribunal Members that comprised the panel that sat on the First and Second Hearings related to the Walker Improvement Drain – 2001was no longer with the Tribunal. The Tribunal noted that the panel was not seized of this matter, but that the remaining three of the original panel of four were assigned to the current panel.
Mr. Broad and Mr. Budden indicated they had no objection to the composition of the panel.
The Issue
The issues before the Tribunal were:
Should the Tribunal order the drainage works to be constructed along Alternative “B”, rather than Alternative “C”.
How should the engineering and legal costs undertaken since the Tribunal hearing of February 18, 2003 be assessed?
The Evidence
Mr. Paul Elston, P.Eng., testified that he had conducted preliminary fieldwork which was necessary to design the drainage works on Alternative “C”, as per the Tribunal’s Order and had met with opposition from landowners to that route. He said landowners were concerned with the impact of the work on a disabled child that lived on the Buys property (Roll No. 31-13405). He said the severity of the child’s illness was not known to landowners until a meeting scheduled by the Municipality was held in August 2003.
Mr. Elston indicated that Mr. Buys had asked for higher allowances for work to be done on his property. Mr. Elston said that providing higher allowances could put the cost of Alternative “C” above the cost of Alternative “B”, and would at least make the costs of the two options equivalent. He acknowledged that he had not yet made an independent assessment as to what the appropriate allowances should be for the Buys property, relying instead on Mr. Buys’ opinion.
Mr. Elston told the Tribunal that Mrs. Sinclair, one of the owners of the property most affected by the proposed Alternative “B” route (Nielsen/Sinclair property, Roll No. 31-133), had written a letter indicating her support of Alternative “B”. He also pointed out that a letter petition had been signed by 20 landowners who now favoured the Alternative “B” route.
Mr. Elston said that he recommended the drainage works be constructed along the Alternative “B” route.
In response to questions, Mr. Elston indicated:
He had conducted sufficient field work to design the drain on either the Alternative “B” or the Alternative “C” route.
By the end of the February 2003 proceeding, the engineering work conducted was valued at $70,000; by the date of this proceeding (DE 18 03) the value of engineering work had risen to $78,000. Approximately $2,000 of engineering costs were related to the Municipality’s request for a review of the May 29, 2002 Tribunal decision. He estimated an additional $2,000 of engineering work would be billed as a result of the December 2003 proceeding.
He did not have access to the Buys property until June 2003. Special arrangements had to be made due to an aggressive dog.
Aerial photographs of the area did not show all the added features on the Buys property.
He understood that when a drain is established under the Drainage Act, landowners are restricted as to what they can do with land used for the drain.
When an established drain is removed or abandoned at an owners request, normally the costs of removal are assessed to that landowner.
Costs are generally assessed to properties where work is undertaken and to properties upstream of the work, but there is an exception for cut-off benefits.
He did not ascertain which would be the best route to take through the Buys property, as the landowner indicated there was no place it would be acceptable.
A trench box could be used to install the drain but there would still be an impact on trees, sheds and underground facilities on the Buys property.
If the existing drain were abandoned, the Municipality would no longer have access to fix it.
It would take approximately two months for him to complete his report, once the Tribunal released its decision.
Summations
Mr. Broad pointed out that the question before the Tribunal was which route the drain should be constructed on. He submitted that Alternative “B” was preferable, as it was the route recommended by the engineer; it was no more expensive than the Alternative “C” route; and 20 of 25 landowners had now signed a letter petition in support of Alternative “B”, including the landowner most affected by this route.
Mr. Broad said it was unfortunate that this information was not available earlier in the hearing process, but that based on the new information, the Tribunal should order the drain to be constructed along the Alternative “B” route.
Mr. Broad pointed out that engineers’ costs are to be assessed to the drainage works, pursuant to Section 70 of the Drainage Act.
Mr. Budden requested the Tribunal review the assessments in the engineer’s report before it is circulated to landowners, to ensure that its order is followed.
Mr. Gillespie said he supported the Alternative “B” route as he was concerned with the impact of construction along Alternative “C” on the Buys child. He clarified that he would not necessarily support the assessments to his property if the drain were to be designed to follow the Alternative “B” route.
Mr. DeWitt questioned whether the proposed drainage works would alleviate water problems in basements.
The Findings
These findings are based on the evidence from all three hearings. Some findings from the previous decisions are omitted as not being necessary for this decision.
Overview of Proceedings
For the purpose of this decision it is helpful to review the background that led to this proceeding. The situation on the ground is not very complicated. The Walker Drain was constructed in the early part of the 20th century. It is an urban drain, and although in general it still functions, by today's standards it is too shallow and lacks capacity. In the upper portion, on what are presently the Hill and Ramsay properties, the drain is failing. The owners of the Hill lands have submitted a petition in accordance with the Act. The petition was initially opposed by a very large number of the other affected owners. The Municipality is in favour of reconstructing the drain and wants to combine the work with some needed street reconstruction.
The engineer's original solution was to relocate the upper portion of the drain east of its existing location, and to extend it into other lands. This led to the First Hearing by the Tribunal held April 17, 2002, which, based on the evidence presented by another drainage engineer, resulted in the Tribunal ordering the consideration of another route, now known as Alternative "A". This order was made on May 31, 2002.
The Municipality applied for a reconsideration of the Tribunal's order. This was granted by an order, dated September 17, 2002.
The Second Hearing was on October 16, 2002. While the basis of the request for reconsideration was that new evidence had come to light; in fact no real new evidence was presented. Accordingly, the Tribunal made a very specific order, directing among other things the engineer to prepare a detailed plan of the land along the route of the existing drain (now Alternative “C”), showing all topographic features, estimated costs of the alternatives including the cost of restoration and compensation if the owners prefer to undertake the restoration themselves.
The Second Hearing continued before the Tribunal on February 18, 2003. The total project was originally costed at $283,000. For the purposes of the hearing the project engineer costed this portion separately. It turned out that, for this portion of the project, Alternative "A" was, at $154,000, considerably more expensive than the other two alternatives and not considered desirable to construct. In the light of the evidence at the First Hearing, the project engineer's original proposal had been modified by eliminating a branch which was going into an entirely different property and simplifying the route through what is now the Ramsey property. This alternative is now known as Alternative "B". The reconstruction of the drain on the properties which already have the existing drain, but in a different location is now known as Alternative "C". The project engineer's evidence was that Alternative "B" would cost $99,200 and Alternative "C" would cost $96,000. The project engineer's evidence was that both Alternative "B" and "C" were feasible, and although$3,200 more expensive, he was in favour of Alternative "B". The Municipality was in favour of Alternative "B" as well because it meshed much better with the proposed reconstruction of Charles Street.
The evidence at the continuation of the Second Hearing was that the engineer’s work in considering Alternative "C" (which was the route directed by the Tribunal to be investigated) was not done until about the last two weeks before the continuation date. In fact, the documents first filed with the Tribunal for the continuation of the Second Hearing did not show Alternative “C”. Although specifically invited to give an explanation, counsel for the Municipality gave no explanation for this state of affairs.
The Second Hearing order was released on May 14, 2003. It directed the construction of Alternative "C", with the engineer to determine in his detail design the final location to facilitate construction and minimize property damage. The route selection of the panel rested on two principal points: firstly, if reasonably possible, the drain should remain on the properties where it always was and has the legal right to be there; and, secondly, Route "C" was the most economical alternative.
In July 2003, with the assistance and participation of the Municipality, the present owner of the Buys property applied to the Tribunal for a reconsideration. The order of the Tribunal, dated July 25, 2003, dismissed this application.
The project engineer held a meeting for the affected landowners on August 19, 2003, at which he presented some revised calculations. He accepted all of the cost estimates for damages submitted by the owner of the Buys property, and in the light of that he came to the conclusion that the revised allowances now made Alternative "C" more expensive than Alternative "B". The total project cost, using Alternative "B" is $204,275. The total project cost, using Alternative "C" is $206,175. The explanation for the difference is that Alternative "B" is more expensive to construct, but the engineer's allowances come to $3,250, while his allowances in Alternative "C" come to $13,410. To summarize, the engineer’s estimate for Alternative “B” was $1,900 less expensive but Alternative “C” had $10,160 more in unsubstantiated damages than Alternative “B”. As a result of the meeting, another petition was circulated, and many of the original opponents of the project now signed on in favour of Alternative "B".
It is to be noted that the original project cost estimate was $283,000, and that even with the additional hearing expenses, the revision of the project produces a very substantial saving.
The Municipality applied for another rehearing, and a rehearing order was granted on November 25, 2003.
The Third Hearing took place on December 18, 2003. The evidence is that the project engineer did not walk the Buys property until after the Second Hearing. Although specifically directed by the Second Hearing decision of May 14, 2003, the project engineer had not considered what would be the least disruptive route through the Ramsay and Buys properties, and admitted that the allowances could change on the basis of the exact route laid out.
The panel asked both the engineer and counsel regarding the costs associated with the July 2003 re-hearing application, the September 2003 re-hearing application and this hearing. Counsel estimated the legal costs of this hearing at $2,500 but would not give an estimate as to the legal costs of the re-hearing applications. The engineering costs were estimated at nil for the first re-hearing application, $2,000 for the second re-hearing application and $2,000 for this hearing. Bearing in mind that even with the engineer's full acceptance of the allowance estimate of the current owner of the Buys property, and without any consideration of the exact location of the drain (which could reduce the allowances), the net cost difference favouring Alternative "B" is only $1,900 on a $200,000 project, it is hard to see spending a minimum of $6,500 to achieve a potential $1,900 saving. There may be an additional discrepancy in these figures as the project engineer also indicated that at the end of the First Hearing the engineering work was valued at $70,000, and that by the date of the Third Hearing the engineering costs had risen to $78,000. This, then, would be an $8,000 difference, plus the legal expenses.
Throughout, the evidence has been that the back yard of the Buys property contains a pool and a number of structures, although the information as to what exactly is there, has not been the same in the last two hearings. There is no evidence as to whether these structures are in compliance with the zoning by-laws. It is clear that the above ground pool has been put over the existing drain.
The Tribunal heard no new evidence to confirm that the construction cost of Alternative “B” was less than the cost of Alternative “C”. The engineer acknowledged that he had not determined the appropriate allowances for the Buys property. The Tribunal is left with a guess of what these allowances might be, based on the landowner’s opinion. There was no evidence to suggest Mr. Buys had any expertise in assessing these allowances.
Route Selection
The Tribunal believes that landowners’ wishes should be taken into account in designing drainage works, where practical. The difficulty with this particular drainage works is that, with the exception of the Municipality, which favours Alternative “B”, the landowners have not maintained a consistent position. Twenty landowners originally requested a third route (Alternative “A”) be followed, but later balked at the cost. At the Second Hearing, several of the landowners present stated they wanted the drain constructed along the cheapest route, which is clearly the Alternative “C” route. At this latest hearing, 20 landowners have signed a letter petition indicating they now favour the Alternative “B” route, out of consideration for the owner of the Buys property. No professional or medical opinions were presented to the Tribunal on the health of the Buys child; nor did the Tribunal hear from Mr. or Mrs. Buys. It should be noted that these letter petitions are only expressions of opinion and are not the statutory petitions referred to in Section 4 of the Act.
The Tribunal has spent considerable time debating the pros and cons of the various alternatives on this drainage project. Had proper consideration been given to Alternative “C” at all stages of this project, it is felt that Alternative “C” would be the best solution to the drainage problem. It has the least expensive cost and has an established right to be reconstructed in that location without disruption of the other properties. It is unfortunate that none of the principal directly affected landowners, with the exception of Mr. Baker and Mr. DeWitt, attended any of the hearings to make their wishes known. On the understanding that the most recent letter, presented at this hearing, signed by 20 landowners, represents the genuine wishes of these owners, the Tribunal will order that Alternative “B” be constructed.
This part of the decision is not unanimous and a dissenting opinion is appended to this majority decision.
Assessment and Costs Issues
The Tribunal finds that the engineer has been far from independent on this project.
The engineer testified that he and the Municipality’s Drainage Superintendant, Mr Shand, carried out the engineering work as “a team”. Section 11 of the Act clearly indicates that the engineer shall act independently. He is required to make his engineering decisions based on his own professional judgement rather than be influenced by others. The Municipality is a major affected landowner on this project. It undercuts the engineer’s independence to allow the Municipality to carry out some of the field investigation and dialogue with owners on behalf of the engineer, and so effect the selection of the appropriate route.
The engineer did not meet with owners of the Nielsen/Sinclair property regarding a new proposed route, even though he was directly ordered to do so by the Tribunal. Many excuses were offered.
The engineer did not properly investigate and design the Alternative “C” route to provide the most suitable location through the Buys property, even though directed to do so by the Tribunal. The photographic evidence at the hearing in December 2003 dwelled on the location of Alternative “C” that would be most difficult and expensive, rather than the open area that may have been more suitable and less expensive. The engineer did not properly cost the allowances through the Buys property on Alternative “C” in the best location but relied on costs provided by the landowner without experience or justification. Similarly, on the Ramsey property, it is felt that the route could have been designed to be less disruptive and less expensive.
At the Second Hearing on this matter, the engineer testified that Alternative “C” is feasible and the least expensive alternative. Had the engineer properly investigated the best possible route in the Alternative “C” location in his original report, there would have been considerable savings and the project may have proceeded in a more orderly manner.
Further, the Municipality, by scheduling an unnecessary meeting on August 19, 2003, has increased the cost of the drainage works. As well, information has not been brought to the Tribunal’s attention in a timely manner, leading to additional costs to the project.
Counsel for the Municipality pointed out that while under s. 78 of the Act, the Tribunal can deal with the cost of a hearing, the Tribunal has no jurisdiction to not allow the engineer's costs otherwise, because of the provisions of s. 70 of the Act which states:
- The fees and expenditures of the engineer form part of the cost of the drainage works.
In a number of situations certain work may be done by the project engineer which is for the specific benefit of a certain party. Alternatively, certain parties may make excessive demands on the engineer's time. These items are properly assessed by independently acting project engineers as special assessments to the parties involved. The Tribunal directs that, except for the actual engineering work done in pursuance of the Tribunal order of May 14, 2003, all of the engineer's fees and disbursements subsequent to that order are to be assessed as a special benefit to the lands owned by the Municipality. For the sake of clarity, fees and disbursements in connection with the meeting of August 19, 2003 are part of the special benefit assessment. No engineering work appears to have been done since the November 25, 2003 order, and accordingly, all the engineering fees and disbursements since that time (including the work associated with this hearing) shall be assessed to the Municipality as a special benefit. Similarly, all of the legal costs subsequent to the February 18, 2003 hearing (including the legal costs associated with this hearing) shall be assessed to the Municipality as a special benefit. The Tribunal is aware of the cost provisions in the two re-hearing applications, and this order is made to deal more clearly with the costs involved in this project since the Second Hearing. These subsequent proceedings have been driven by the Municipality, through its employees, and in the Tribunal’s view have provided no benefit to the Walker drain.
During the First Hearing in this matter, considerable dialogue took place between Mr. Kuntze, P.Eng., and Mr. Elston, P.Eng., regarding the methodology of assessing the cost of the project. The Tribunal evaluated these opinions, and in light of their submissions has modified certain aspects of the assessment methodology.
Further, it is the Tribunal’s view that in locations where the drain is abandoned and relocated, even if not physically removed, the owners of the land should be charged with an appropriate amount, related to the amounts being paid for the acquisitions of the new rights of way. In addition, the Buys property receives a benefit by cut-off, as the property will no longer be encumbered with a municipal drain across it, requiring maintenance and disruption in the future. It should be noted that with the old drain being abandoned on the Buys property, that property will no longer have a right to request maintenance of a drainage outlet through that drain. The Buys property should accordingly be assessed a cut-off benefit in the range of $2,000-$4,000.
ORDER OF THE TRIBUNAL
This order includes the subsisting parts of previous orders. After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Tribunal Order dated May 14, 2003 is set aside.
The Municipality is ordered to refer the report back to the engineer to complete the design of the drain so that it follows the general route of Alternative “B”. The engineer is also to:
i) Provide an outlet to the Baker property on Charles Street.
ii) Maintain the north end of the existing drain which was proposed to be abandoned, to drain the Zweers properties and the railway lands. iii) Clarify that all old drains encountered during construction be connected to the new drainage works iv) The portions of the Walker Drain located on the Buys property, Ramsay property and southern portion of the Hill property are to be abandoned but not removed.
- The engineer is ordered to vary his assessment methodology to:
i) Reconsider the overall project proportion of statutory benefit and outlet liability ratio and any other incidental assessment matter in the light of the modification to the project. ii) Assess the statutory benefit portions of the assessment to lands and roads in a ratio in the range of 35-40% to roads and 60-65% to lands in the watershed. iii) Assess a maximum of 10% of the statutory benefit costs as a general watershed improvement benefit. iv) Vary the benefits assessed to the benefiting properties receiving a direct connection to the drainage works, improved property values, and improved drainage according to the benefit received by each individual property. v) Assess a cut-off benefit to properties where the original Walker Drain is to be abandoned. For the Buys property, this cut-off benefit is to be in the range of $2,000-$4,000.
vi) Assess a special benefit to the Municipality in an amount that is equivalent to the total of all engineering fees and disbursements for work undertaken on this project since the release of the Tribunal decision dated May 14, 2003 and all legal costs associated with this project incurred since February 18, 2003.
vii) Assess a benefit to the properties where the drain is being abandoned but not removed, the amount of assessment is to be based on the cost of acquiring land for the drain at this time. viii) Clarify that the actual cost of the road improvements will be assessed to the Municipality as a special assessment.
The engineer shall file the revised report with the Council of the Municipality within 60 days. The Council of the Municipality shall circulate the revised report. Any assessed landowner can appeal directly to the Tribunal within 30 days of the circulation of the revised report by filing a Notice of Appeal in writing with the Clerk of the Municipality. The Clerk shall forthwith forward all appeals to the Tribunal after the 30-day time limit for appealing has passed.
The Municipality is to pay $1,000 to Mr. Kuntze, which shall be added to the cost to the drainage works. The balance of Mr. Kuntze’s account shall not form part of the costs of the drainage works.
Except as ordered above, the non-administrative costs of the Municipality in respect to this appeal shall form part of the cost of the drainage works. Except as ordered above, all other parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
Dated at Guelph, Ontario this 13th day of February, 2004.
DISSENTING OPINION AND REASONS
Except as specifically provided in this dissenting opinion, this panel member agrees with all the findings of the majority and the orders proposed by the majority.
The Drainage Act deals with drainage of lands, not people. This drain will be there long after the present owners, project engineer, drainage superintendent and Tribunal members are gone. Personalities drive a number of hearings before the Tribunal, but the Tribunal ought to come down on the side of what is right, and not what personality conflicts may dictate.
Relocating the drain from its existing location basically because the present owner of the Buys property built over the drain and has a number of structures in the back yard is not a good enough reason. There is a municipal drain on the property. A previous owner of the property was paid compensation for constructing it in that location. That property has not only the benefit but also the burden of the drain. There must be sound reasons for casting the burden on someone else. Unquestionably, the right location of the drain is Alternative "C". It is the opinion of this panel member that no evidence was called at any time to the contrary that had any legal weight on this issue.
The inference from all that has transpired is irresistible. The Municipality is determined not to construct the drain unless it is Alternative "B". This is in spite of the fact that the scheme established by the Drainage Act is that the Tribunal is the final authority with regard to the location and features of the drain.
The Tribunal could take the avenue of least resistance and order the construction of Alternative "B". However, this panel member takes the view that the Drainage Act of Ontario applies even in the Municipality of Thames Centre.
For future reference, this dissenting member would propose to deal with the situation in the following way.
This panel adjourns the hearing and retains jurisdiction in this matter for the following purposes.
The engineer is directed to complete and submit to the Municipality and the Tribunal the revised report, following the orders of the Tribunal, and selecting the least intrusive location for Alternative "C" within 35 days of the release of this decision.
In the event that the Tribunal's order is not complied with, the Tribunal shall convene a hearing to consider whether the project engineer should be removed.
The Municipality is directed to accept the revised report and pass the appropriate provisional by-law.
Any affected owner may appeal directly to the Tribunal both in regard to modification and assessment issues, by filing an appropriate notice with the Municipality within 25 days of the passage of the appropriate provisional by-law.
This panel shall consider what further Tribunal supervision may be needed at the hearing of such appeals. In the event that no appeals are filed, the Municipality shall file with the Tribunal the call for tenders within 90 days of the release of these reason, and the certificate of completion of the engineer within 210 of the release of these reasons.
The parties are at liberty at any time to apply to this panel for further modifications and clarifications at any time.
The above omits the various assessment and costs directions. This dissenting panel member is of the view that any further applications are to be made to this panel, and that applications for re-hearing would not be appropriate until the completion of this hearing.
Dated at Shelburne, Ontario this 13th day of February, 2004.