Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omafra.gov.on.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omafra.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Dykeman Pumping Works Drain Municipality of Chatham-Kent Dykeman Pumping Works Drain (RE) [Request for Review] 2006 ONAFRAAT 42

STATUTE: Drainage Act

HEARING: March 31, 2006

DATE OF DECISION: October 31, 2006

2006-42

NEUTRAL CITATION: 2006 ONAFRAAT 42

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 Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot and Robert Stewart under Section 54 of the Drainage Act from a decision of the Court of Revision and under Subsection 48 (1)(b) of the Drainage Act from the Engineer’s Report on the Dykeman Pumping Works Drain in the Municipality of Chatham-Kent.

Before: Gene Trotman, Vice Chair; Jane Sadler Richards, Member

Appearances (March 31, 2006): David McGeorge, P. Eng., engineer who prepared the Report Tony Dobbelaar, appellant Lloyd DeBot, appellant Arthur Seys, appellant Albert DeBot, appellant Robert Stewart, appellant Scott Kilbride, assessed landowner Eric Allaer, assessed landowner

Appearances (September 19, 2006): David McGeorge, P. Eng., engineer who prepared the Report Tim Dick, representing the Municipality of Chatham-Kent Tony Dobbelaar, appellant Lloyd DeBot, appellant Robert Stewart, appellant Scott Kilbride, assessed landowner Carl Cadotte, assessed landowner

BACKGROUND INFORMATION

This appeal was first heard in Wallaceburg, Ontario, on March 31, 2006 and a decision rendered. It was reconvened on September 19, 2006 by an Order of the Tribunal pursuant to a complaint made by Scott Kilbride and Carl Cadotte. The gist of the complaint by Scott Kilbride, who was not an appellant of record but an assessed landowner in the area involved in attendance at the March 31, 2006 hearing was that he was not given the opportunity to present his side of the issue.

Carl Cadotte was of the same status as Scott Kilbride and his complaint was that a clerical error appeared in the Engineer’s Report which was corrected by the Court of Revision at its sitting on September 28, 2005 but reversed by the Tribunal and as a consequence he wanted that decision reviewed.

The complaints of both Scott Kilbride and Carl Cadotte were upheld by the Chair of the Tribunal, Mr. Rod Stork, and his order in that regard is as follows:

1. The decision of the Tribunal dated May 1, 2006 on appeals by Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert Debot and Robert Stewart from the decisions of the Court of Revision and from the engineer’s report on the Dykeman Pumping Works Drain is to be reviewed by the original panel that heard the matter-Vice chair Gene Trotman and members Ron Gelderland and Jane Sadler Richards.
2. The hearing into the above noted appeals is to be reconvened to allow Mr. Kilbride and Mr. Cadotte to present evidence. The original appellants and the Engineer may be given an opportunity to present evidence in reply.

For the reconvened meeting on September 19, 2006, Ms. Eleanor Mifflin, Clerk of the Municipality of Chatham Kent (the Municipality) performed the duties of the Clerk of the Tribunal.

Mid-morning of September 19, 2006, Tribunal Member Ron Gelderland excused himself from the hearing due to a family emergency. Because he was unable to hear all the evidence and submissions in this case, he did not participate in the deliberations of this matter and the resulting decision.

STATUTE INVOKED AND CONSIDERED

Section 54 of the Drainage Act, R.S.O. 1990. c17 states:

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.

(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.

(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, chap. D17, s. 54.

Subsection 48 (1) (b) of the aforesaid Drainage Act states:

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,

(b) the drainage works should be modified on grounds to be stated;

may appeal to the Tribunal.

PRELIMINARY MATTERS

At the onset of the reconvened hearing on September 19, 2006, Mr. Scott Kilbride asked the Tribunal to adjourn the hearing as he said there was a misunderstanding as to who would be allowed to speak at the hearing. He argued that the Tribunal order dated August 11, 2006 only mentioned himself, Mr. Cadotte, the original appellants and the Engineer but the opening statement of the panel chair indicated that all assessed landowners would have an opportunity to speak. He said he thought the process described by the panel chair was better, as all landowners should be able to speak, but said there were other assessed landowners who did not come to the hearing as they did not want to cancel vacation plans if they were not able to participate in the hearing. Mr. Kilbride said he was misled by the August 11, 2006 order of the Tribunal and an electronic mail transmission from an employee of the Municipality.

Mr. Carl Cadotte said he was not concerned and had no witnesses. He did not support the request for adjournment.

Mr. Tim Dick referenced the electronic mail transmission in question (Exhibit 6) and noted that it quoted the Tribunal’s Notice of Continuation of Hearing “you may wish to attend at the hearing and participate fully” and indicated that it would be up to the Chair/tribunal panel to say who will or will not be able to speak at the hearing.

Mr. Dobbelaar said that he understood that everyone could come to the hearing, including 150 landowners in the area of land that was of concern to Mr. Kilbride.

Mr. Kilbride replied that he understood they could all come but would not be allowed to speak as that was what happened on March 31, 2006.

The Tribunal made it clear, that while the hearing was reconvened specifically to allow Mr. Kilbride and Mr. Cadotte to present evidence, it followed naturally that their supporting witnesses would also be accommodated. It was made clear by the Tribunal that all parties would be heard. With regard to the allegation of misinformation provided by staff of the Municipality, the Tribunal found this allegation had no substance. That being the case the Tribunal decided to proceed with the continuation of the hearing on September 19, 2006.

Mr. Kilbride objected to the ruling on the grounds that he would have had other landowners supporting his position had they known they would have that opportunity. The Tribunal indicated the onus was on him to marshal support for his position and pointed out that he could not disqualify others from attending the hearing based on his view of how the proceeding would be conducted.

Mr. Kilbride objected further to the ruling by voicing his concern that proper notice was not delivered. He said he received the Notice of Continuation of Hearing on September 8, 2006 but he thought that others may have received it later.

Mr. Dobbelaar, one of the appellants on record, stated he would like the hearing to proceed. He said Mr. Kilbride was informed by electronic mail transmission that he would be able to attend and participate fully and received the notice more than 10 days before the hearing. He said he did not think there was a problem with the delivery of the notice on time.

The Tribunal reiterated its decision to proceed with the hearing.

THE EVIDENCE PRESENTED ON MARCH 31,2006

David McGeorge

Mr. McGeorge P. Eng. provided the Tribunal with background information with respect to the Dykeman Pumping Works and its watershed.

The Dykeman Pumping Works was constructed under the report of W.G. McGeorge P. Eng. in 1910. The works was designed to drain approximately 400 hectares of land in Lots 1, 2, 3, and part Lot 4, Concessions 1 and 2 in the former Geographic Gore of the Township of Chatham. The watershed for the Dykeman Pumping Works has its northern and eastern boundaries at the Running Creek Drain and its southern and western boundary at the Chenal Ecarte River. The works provides drainage for agricultural lands and residential lots. The original portion of the main drain was constructed as a tile drain with its upstream most point at the border of Lots 1 and 2, Concession 2. The main drain ran southward and eastward to an open outlet in the Chenal Ecarte River. A branch drain with an adjoining earth bank was constructed from the main drain westward following the river bank from the pump house to higher land at Blue Water Line and a bank along the river was extended eastward from the pump house to Blue Water Line. Banks were constructed along the Chenal Ecarte River westward toward where the new branch drain outlets. From 1911 until 1952 the drain was kept in repair to the extent that sediment was removed from time to time. Tile was replaced with open ditch in the portion of the main drain in the south half of Lot 2, Concession 2. In 1952 a low head propeller pump with electric motor was installed and a new pump house was constructed at the present location. In 1956 the lands in Lot 4, Concession 1 that were not initially assessed into the Dykeman Pumping Works were added to the scheme.

In 2001 a preliminary report was prepared. It contained two options for the repair of the works. Landowners chose the option which provided for the cleaning of the drain; however, in his June 6, 2005 report, Mr. McGeorge P. Eng. recommended that in addition to the removal of sediment a schedule be provided for the continued maintenance of the earth embankments along the Running Creek and the Chenal Ecarte River. The earth embankments provide protection against high water levels in the Chenal Ecarte River.

The June 6, 2005 report prepared by Mr. McGeorge P. Eng. provided for the removal of approximately 1 m of sediment from the bottom of the drain channel and individual landowners requests for embankment repairs pursuant to the policy of the Municipality of Chatham-Kent. The ditch banks are to be stabilized with gabion stone and filter cloth. and a 1 m wide buffer strip on either side of the drain for maintenance purposes is proposed. Individual pedestrian access bridges are to be the responsibility of the individual landowner under the report.

Some of the landowners assessed on the Kilbride Pumping Works objected to being assessed on any portion of the Dykeman Pumping Works except for the repair of the earth embankments around the perimeter of the watershed.

The assessments as apportioned in the report dated January 25, 2005 were 33 1/3 percent lower for the lands on the Kilbride Pumping Works as it was recognized that the Kilbride scheme provided those landowners with some protection from flooding. The lands assessed on the Kilbride Pumping Works however, are also reliant on the Dykeman Pumping Works for protection. The Dykeman Pumping Works was designed with a capacity to drain the whole watershed whereas the Kilbride Pumping Works is only sufficient to provide drainage to the smaller area that is assessed for its operation.

The lands in the Kilbride Pumping Works occupy 16 percent of the watershed of the Dykeman Pumping Works and were assessed for 10 percent of the cost of the proposed maintenance under the June 6, 2005 report which included the excavation of sediment from the main drain, spreading of spoil, erosion control measures and the establishment of a buffer strip on either side of the drain.

The lands within the watershed for the Dykeman Pumping Works are flat with earth embankments along the perimeter. Under the June 6, 2005 report, the per acre assessments for farmlands were very similar, however, the run off factor was higher for residential lands which were assessed accordingly.

The watershed area of the Dykeman Pumping Works was flooded in 1985. The flood waters were accompanied by high winds. The water was pumped out of the watershed over two weeks and at a cost of $52,000.00 to restore the system.

Mr. McGeorge submitted to the Tribunal that if he had not seen the effects of the flood of 1985 firsthand, he may not have assessed the Kilbride Pumping Works lands on the Dykeman scheme: however, it was demonstrated in the flooded conditions that there was overflow of water to lands in both watersheds and that there was no concise method of determining the origins of the water that flooded the area. Mr. McGeorge stated that he did not concur with the decision of the Court of Revision to remove assessments for the Dykeman scheme from all lands assessed to the Kilbride Pumping Works.

Tony Dobbelaar

Mr. Tony Dobbelaar, appellant, told the Tribunal that:

• In 1978 the Dykeman drain was cleaned and the pump motor was rebuilt. All lands except for those in Lots 3 and 4 Concession 2 were assessed for the clean out work.
• The watershed for the Dykeman Pumping Works consists of 1050 acres enclosed by 8 km of dike works. The lands in the watershed are at the level of the nearby Lake St. Clair.
• The lands assessed on the Dykeman Pumping Works were assessed for the repair of the Kilbride pump after it was damaged in the flood of 1985.
• The Kilbride lands should be assessed for some of the work proposed in the June 6, 2005 report to repair and improve the Dykeman Pumping Works. The decision of the Court of Revision to reduce the costs assessed to the Kilbride lands from 10 percent of the total cost to 0 is not appropriate.
• The appellants have many years experience farming in the area of the Dykeman Pumping Works watershed. They have seen how the Dykeman scheme benefits the Kilbride lands.
• The components in the Dykeman scheme rely one upon the other for effective drainage. The dikes keep water out of the low lying watershed; the channel conveys the water to the pumping station where it is pumped to outlet in the Chenal Ecarte River.
• The system is integrated so that all lands in the watershed will be affected should one of the three components of the scheme fall into disrepair.
• The assessments under the June 6, 2005 report are fair and reasonable; the benefit provided to the Kilbride lands by the Dykeman Pumping Works is not nil.
• It became clear in the flood of 1985 that the Dykeman Pumping Works benefited all the lands in the watershed. During the flood of 1985 the Kilbride lands were as severely affected by flood waters as the rest of the lands within the watershed for the Dykeman Pumping Works.

Albert DeBot

Mr. Albert DeBot told the Tribunal that his property was at the lowest elevation of all lands assessed on the Dykeman Pumping Works. He stated that the surface water from the Kilbride lands flow across his property. Mr. DeBot told the Tribunal that his property was located at a point where the Kilbride and Dykeman watersheds met. He stated that he installed two catch basins on his property to improve drainage. Mr. DeBot stated that he wanted a berm constructed on his property to cut off flows from the adjacent Kilbride lands.

Lloyd DeBot

Mr. Lloyd DeBot told the Tribunal that he agrees with the assessment schedule prepared in the June 6, 2005 report which includes assessments against the Kilbride lands for the proposed repair and improvement of the Dykeman Pumping Works. Mr. DeBot told the Tribunal that when water levels are low, the flow within the watershed is generally toward the west, however the wind has an effect on the direction of water flow causing water from the Kilbride lands to flow toward the Dykeman scheme and vice versa.

Robert Stewart

Mr. Robert Stewart told the Tribunal that he represented the estate of Gordon Stewart with lands in Lot 2, Concession 2. Mr. Stewart told the Tribunal that the Kilbride lands were located within, and benefited from, the protective dikes of the Dykeman scheme. He stated that it is unreasonable to consider these lands that are physically located within a watershed as not being in the watershed with respect to assessments for repair and maintenance. Mr. Stewart told the Tribunal that during the flood of 1985, it became evident that the Kilbride lands were not a distinct sub-watershed. Mr. Stewart explained that in general, surface run-off within the watershed flows into the Dykeman Pumping Works. He stated that the Kilbride lands benefited from the Dykeman scheme and should therefore be assessed for a portion of its repair and improvement.

David. McGeorge P. Eng.

In response to questions Mr. McGeorge, P. Eng. told the Tribunal that:

• Under the June 6, 2005 report, the Kilbride lands were assessed for the repair and improvement of the Dykeman Pumping Works but not vice versa.
• He observed conditions in the watershed during the flood of 1985 firsthand.
• During the flood, water flowed from the embankments on the Kilbride lands westward toward the Dykeman pumping scheme.
• The channel in the Dykeman scheme acts as a reservoir for the system. The top of the channel is over 70 feet wide and the bottom of the channel is 60 feet wide. The pump in the Dykeman scheme has the capacity to remove water at a rate of 15,000 gallons per minute or the equivalent of 15 gallons per acre of land per minute. The pump on the Kilbride scheme is much smaller with a capacity of 2,000 gallons per minute.
• Overflow water from the Kilbride scheme enters the Dykeman works. The reverse does not occur as the watershed slopes toward the west, therefore, the Dykeman lands are not assessed on the Kilbride scheme.
• Run-off increases when the ground is frozen. Run off is greater on lands that have impermeable structures such as houses, and paved areas.
• The drain portion of the Kilbride scheme consists of buried tile.
• The watershed for the Dykeman Pumping Works is saucer shaped. The drain portion of the Dykeman Works is located in the lowest part of the watershed.
• Under a previous report, he had recommended constructing a barrier to create distinct watersheds, one for the Kilbride works and one for the Dykeman works. The option was rejected.
• The embankments that surround the watershed are part of the Dykeman Pumping Works. The Dykeman Pumping Works includes the Kilbride Pumping Works.
• The landowners on the Kilbride scheme have recognized that their lands benefit from the embankments surrounding the Dykeman watershed.
• The Court of Revision removed the assessments for the Kilbride lands from any costs for the Dykeman Pumping Works but the three components, embankments, channel and pumping station are integral to the function of the system.
• He reapportioned the assessments from the Kilbride lands onto the other lands in the watershed at the direction of the Court of Revision. He prepared a schedule of assessments based on the Court of Revision decision under a report dated August 26, 2005.
• The assessments that were removed from the Kilbride lands were for repair, maintenance and daily operation of the works.

EVIDENCE PRESENTED ON SEPTEMBER 19, 2006

Mr. Cadotte

Mr. Cadotte told the Tribunal that the Engineer, Mr. McGeorge P. Eng., had acknowledged he made an error in recording the assessment for his property and that as a result it was assessed $80.00 higher than neighbouring properties. He said the Court of Revision had corrected the mistake but that the Tribunal order of May 1, 2006 had reversed that decision.

Mr. David McGeorge in response said, he agreed with Mr. Cadotte, a clerical error had been made and the Cadotte property should have been assessed at $110.00, rather than $190.00. He recommended the Tribunal order the assessment to be modified accordingly.

Mr. Kilbride

Mr. Scott Kilbride referenced previous engineer’s reports on the Dykeman Pumping Works Drain and nearby drainage works. He told the Tribunal that :

• Mr. McGeorge had testified on March 31, 2006 that he had proposed a berm be constructed between the lands served by the Kilbride pump and other lands but that this proposal was rejected. He emphasized that he could find no reference of the proposal in an engineer’s report (Exhibit 10) and that his father had no recollection of that proposal.
• In the 1960s Mr. McGeorge said it was too costly to drain under Highway 40 and no assessment outside the Kilbride lands was charged at that time. He pointed out that at that time the Booker Drain was out of repair (Exhibit 10).
• In a report on the engine of the Dykeman Pumping Works Drain (Exhibit 11), only 57 of 160 acres of Kilbride land was assessed on the drainage works.
• A further report on the same engine replacement work (Exhibit 12) also had only 57 of 160 acres included in the assessment schedule.
• A report calling for dike repairs two years after the engine replacement (Exhibit 13) had no assessment on Kilbride lands.
• A report that divided up the cost of emergency work undertaken on the Dykeman Pumping Works Embankment in the 1970s (Exhibit 14) was costed out equally as all landowners needed the work.
• A report that called for ditch cleaning and pump repairs on the Dykeman Pumping Works Main Drain (Exhibit 15) excluded all but seven acres of Kilbride lands. His father had been told these were the lands that stretched behind the A. DeBot lands.
• A 1982 engineer’s report (Exhibit 16) assessed costs to Kilbride lands but it was never passed so no one was assessed.
• The Booker Drain was still a legal drain.
• Staff notes taken on March 31, 2006 (Exhibit 7) indicated that Mr. McGeorge changed his mind as to whether the Kilbride lands should be assessed in the Dykeman Pumping Works Drain as a result of a flood that occurred in 1985.
• Mr. McGeorge had said that the assessment on embankment work on the Dykeman Pumping Works Drain had been the same for years and Kilbride landowners were assessed for pumping on the Dykeman Drain, but the reports he submitted into evidence showed that was not the case.
• A 1987 engineer’s report on emergency works undertaken as a result of flooding (Exhibit 17) assessed all ratepayers for the dike repairs. For the next 20 years part of the pumping costs of the Dykeman Pumping Works Drain were assessed to Kilbride lands, in addition to the pumping costs of the Kilbride Drain. Dike and pumping costs were assessed at a 16 percent rate to Kilbride lands. The Municipality had verbally acknowledged this was an error and indicated it is taking corrective steps.
• He did not understand until the first day of the Tribunal hearing that the various reports covered various aspects of the drainage works – he had assumed that every report covered everything.
• Minutes of the Court of Revision indicated the pump and the dike could be dealt with under separate reports; Mr. McGeorge said he supposed it could be done.
• At the first reading of the Report, it seemed that spoil would be placed on a golf course; Mr. McGeorge said a property owner to the east of the golf course had agreed to take the spoil. He said Mr. McGeorge had been unaware that it was a golf course.
• At the same meeting, Mr. McGeorge said the Booker Drain drained 160 acres of Kilbride lands to the Dykeman Pumping Works Drain, but could not carry the extra water when the land was developed; a larger drain could not be installed and was abandoned and the Kilbride Pumping Works was installed instead. This contradicted the Report which said the Booker Drain was working and 10 percent of the costs assessed to the Kilbride lands were because of the Booker Drain.
• Minutes of the Court of Revision indicated that Mr. Allaer told the Court of Revision that the Booker Drain was gone and no water could flow through it.
• The golf course was only allowed $636.00 for damages although spoil was to be spread to a depth of one foot.
• Minutes of the Court of Revision dated June 22, 2005 indicated Mr. McGeorge stated the Kilbride Pumping Works has its own pump which outlets into Running Creek but was not a separate watershed from the Dykeman Pumping Works. He did not mention then that the 1985 flood was his reason for assessing Kilbride lands in the Dykeman Pumping Works Drain system.
• His grandfather won a lawsuit when a line was broken and was unable to re-join the Dykeman Pumping Works Drain because the Booker Drain 2 was abandoned. Mr. McGeorge had acknowledged his grandfather won the lawsuit.
• Mr. McGeorge said that it is current users who are assessed for cleaning built up sediment in drains.
• Mr. McGeorge said at the Court of Revision that as far as he knew the Booker Drain 1 was still in repair and had not been abandoned.
• Mr. Kilbride had since asked that the Booker Drain 1 be abandoned.
• No elevations were provided to prove the land sloped to the west, west of the Kilbride lands to the ditch that requires cleaning; if it did the Kilbride lands would not need a pumping station of their own.
• His father stated the Booker Drain had not been functional since 1967.
• The Report required spoil to be removed to the east side of the Stewart property.
• He was assessed at two-thirds the rate of other landowners. He did not initially understand that this was only for ditch cleaning.
• The appellant, Mr. Dobbelaar, first wanted the whole Report abandoned.
• The Kilbride Pumping Works got rid of the water after the flood in 1985, including water that originated on Dykeman lands.
• Mr. McGeorge has said the drain had not been cleaned in many years.
• The drain north of Highway 40 had been cleaned in 1996. Exhibit 18 confirmed this.
• After two ditch cleanings, the spoil would raise the land up to two feet, further restricting access to the Dykeman Pumping Works Drain by water on the Kilbride lands.
• He could not trespass on neighbour’s lands so he took photographs and elevations as best he could from his land to try to demonstrate the slope of the land to the west of the Kilbride lands.
• Photographs he took in March 2006 showed his Lot, the second Lot east of the dividing line between the two schemes, then panned west and showed 7 acres of Kilbride land behind the A. DeBot property. He submitted that the land had a roll to it, the wet spots showed the low points, and that water was pooling on Kilbride lands but not Dykeman lands. He acknowledged the Dykeman lands had a catchbasin but said the Kilbride lands also had a catchbasin. Another photograph showed the tree line and ditch.
• Photographs he took on Sunday, September 17, 2006 showed a white post by a swale that appeared to be the lowest area on Dykeman lands. He set up his transit on his property in a low spot and sighted it 16-18 inches from the top of the white post. He assumed the post was 4 or 5 feet high. Lands between the post and the Dykeman ditch appeared to be rising.
• Photographs he took on Monday, September 18, 2006 showed Mr. Stewart driving his tractor on his property. He set up his transit 100 feet behind his house, 4 foot 11 ¾ inches off the ground and his sight line was 3 inches over the top of the white post photographed the day before. He sighted the rear tire of Mr. Stewart’s tractor. He estimated the tire to be 5 feet 3 inches off the ground. It started to rain so he could not get a measurement of rise off the tractor tire.
• He calculated that the lowest spot in the Dykeman lands west of the Kilbride lands was eight inches higher than the lowest spot on the Kilbride lands. He submitted it would be another foot higher if spoil was placed upon it.

In response to questions from Mr. McGeorge, Mr. Kilbride indicated:

• He did not understand how any spoil could be put on a golf course if the specifications did not allow dirt to be placed on a lawn or laneway.
• He did not know where the spoil was placed when the ditch was cleaned under a report prepared in 1978. His point was piling the spoil as directed in the Report would make the land higher.
• His father had no recollection of a discussion with Mr. McGeorge about building an embankment between the Kilbride and Dykeman lands.
• He thought the Kilbride lands had only been marginally assessed into the Dykeman Pumping Works Drain for approximately 20 years, seven acres in one report and 57 acres in other reports.
• He could see that Kilbride lands were stroked off the assessment schedule of a 1969 report, but did not see that it was done by a Court of Revision so assumed it had been Mr. McGeorge who did it.
• He was aware that Kilbride lands had been added to an assessment schedule in a 1968 engineer’s report but could not see where it said that a Court of Revision did it.
• He had not read the 1964 engineer’s report on the Booker Drain.
• He acknowledged that the Booker Drain was still a legal drain.
• He did not recall ever asking for repairs to the Booker Drain. He was not aware of anyone in his organization asking for repairs after 1967.
• He was not around in 1978 when a bridge was replaced and could not answer questions about the bridge works.

In response to questions of the appellants, Mr. Kilbride indicated:

• To the best of his knowledge no engineering report had sought to remove the Kilbride lands from the Dykeman Pumping Works since the Kilbride Pumping Works was installed some 40 years earlier. The various reports indicated that the Courts of Revision had adjusted the assessment schedules in response to complaints by landowners.
• He was not aware of anyone making a formal request to have an engineer’s report on work that would remove the Kilbride lands from the Dykeman Pumping Works.
• He knew he had to come to meetings to appeal the report if there was a mistake or error in a report related to compensation for property damage.
• He did not know if the Kilbride Pumping Works was the cheapest option at the time it was installed; he thought the engineer would have looked at all options and recommended the best solution.
• In the flood year, residential properties and farm land were flooded. Lands on the south side of Highway 40 were later drained through a hole on the DeBot property.
• The 12-inch catch basins on the DeBot property were installed approximately 40 feet from the property line.
• To the best of his knowledge the assessment schedules in the previous engineer’s reports were final, when the reports are attached to a by-law.

In response to questions from the Tribunal, Mr. Kilbride indicated:

• He had lived in the area for 46 years.
• He held a Bachelors degree in Crop Science from the University of Guelph.
• He understood that assessments were to be based on benefits received and while he knew the Booker Drain had not been officially abandoned he did not think it had been benefiting his lands.
• At the time of the flood he did not doubt that some water from Kilbride lands was removed underground through tiles but he was still left to deal with surface water and had to dig a trench to get the surface water to the Kilbride pump to remove it.
• He thinks part of the watershed is flat but his property is the lowest, and with spoil piled up from the 1996 clean out and the proposed ditch cleaning he did not see how the ditch portion of the Dykeman Pumping Works Drain would benefit Kilbride lands.
• There was no benefit to deepening the ditch if water from his land could not get in it.
• He did not want a berm installed to separate the Kilbride and Dykeman lands.

Mr. David McGeorge P. Eng.

Mr. David McGeorge testified that the watershed had a very flat grade but generally sloped in a westerly direction. He provided a plan and profiles of the Kilbride Pumping Works prepared in 1967. He said the Kilbride pump was on a high point as it was located next to a creek into which it outlets. He also provided plans and profiles of the Highway 40 Drain No. 2 which were prepared in 1983. He explained that the drain was installed to provide direct drainage from residential properties to the Kilbride Pumping Works. He said elevations were taken every 50-100 feet and show that the land slopes to the west. Mr. McGeorge acknowledged that there are high points in the Dykeman lands near the golf course which are 3-4 feet higher, and he suggested the Stewart tractor could have been on the high part of the land that abuts the main drain when Mr. Kilbride photographed it. Mr. McGeorge said the line of the land would not have changed since 1983 since the houses were built and occupied at that time.

Mr. McGeorge stated that immediately after the installation of the Kilbride Pumping Works under the 1967 engineer’s report, he felt the lands should be exempt from the Dykeman Pumping Works as the Kilbride Pumping Works would be capable of draining the lands and only relying on the Dykeman Pumping Works for banks. He said his opinion on that matter was fluid as he knew if there were a flood there would be interchange of flow between the two areas. He pointed out that he was asked by the Municipality (then Chatham Township) in 1978 to give an opinion on how to size a culvert that was to be replaced and that he recommended it be the same size, despite the Kilbride Pumping Works. He said he documented at that time that the lands north of Highway 40 – served by the Kilbride Pumping Works – relied upon the Dykeman Pumping Works Drain for protection against flooding and as a relief outlet (Exhibit 21). He explained that the Drainage Superintendent of the day had asked if a smaller culvert could be installed, in light of the Kilbride Pumping Works.

Mr. McGeorge said the only engineer’s report he prepared that completely left the lands served by the Kilbride Pumping Works out of the assessments was dated January 1978. He said by September 1978 he was convinced the Kilbride lands would use the Dykeman Pumping Works Drain. Mr. McGeorge said that prior to 1985 he used the reasoning that the Kilbride lands had their own pump but relied on protection from the outer bank of the Dykeman Pumping Works Drain. He said by the time of the flood on 1985 it was clear that the Kilbride lands were using the Dykeman Pumping Works Drain.

Mr. McGeorge summarized his assessments to the Kilbride lands for work on the Dykeman Pumping Works Drain as follows:

• Kilbride lands were assessed in his January 1978 report for emergency work done on the dikes and main drain, as landowners in both schemes were affected
• Kilbride lands were assessed in a 1982 report that called for the replacement of a motor but that report was never adopted
• Kilbride lands were included again in 1987 in a report on emergency work needed on the drainage works.

Mr. McGeorge said Kilbride lands had always been assessed 10 percent less than other lands in the Dykeman Pumping Works Drain as they are farther from the pump than other lands. He said he thought their assessments should be reduced by one-third due to the use of the Kilbride Pumping Works. He explained that he based that reduction on the normal cost of pumping their water over an extensive period of time. He explained he checked actual pumping costs and came up with an average cost of $290.00/year and he used that figure to calculate the relief from assessments allocated to the Kilbride lands in the Report in question.

Mr. McGeorge also stated he had been in business for 52 years and knew the area thoroughly and that the whole county is tipped to the west. He said spoil is usually placed on one side of a drain in one clean out and on the opposite side for the next clean out. He also referred the Tribunal to an excerpt from a 1964 report on the Booker Drain which indicated it was in good working condition but did not have adequate capacity (Exhibit 20).

In response to questions by Mr. Kilbride, Mr. McGeorge indicated:

• Booker Drain 2 was abandoned due to an impediment under the highway but Booker Drain 1 was never abandoned.
• The culvert that was replaced was sized for flooding from the lands in the Dykeman Pumping Works, including the Kilbride lands north of Highway 40.
• During the flood of 1985 there was water everywhere and it was flowing to the west.
• An earlier report that assessed only 57 acres of Kilbride lands into the Dykeman Pumping Works Drain was a mistake in the assessment and the Court of Revision added the rest of the lands in.
• Work was undertaken on both the Dykeman Pumping Works and the Kilbride Pumping Works in 1978.

In response to questions from the appellants, Mr. McGeorge indicated:

• He obtained his figures on past assessments from the final reports adopted.
• A dike on the east side of the watershed had been repaired before the flood of 1985 as it had been in poor repair. The other dikes were repaired after the flood.
• Highway 40 was covered with water when he saw it during the 1985 flood; he believed a section of it was taken out by the flood.
• It was intended that the Kilbride Pumping Works would drain the Kilbride lands but relief could go through the Booker Drain 1.
• It was not feasible to remove the Kilbride lands from the scheme, then abandon the main drain and the pump and put a new facility in.

Mr. Kilbride replied that the Stewart tractor was on the east side of the farm in his photographs.

SUMMATIONS

March 31, 2006

In summation Mr. McGeorge told the Tribunal that he believes the assessments under the June 6, 2005 report are reasonable. He explained that it is a difficult task to apportion assessment by percentage to lands that benefit in part by a drainage works. He stated that prior to the flood of 1985 he was of the opinion that the assessments against the Kilbride lands should be reduced because the Kilbride Pumping Works decrease the amount of water from the Kilbride lands that flows into the Dykeman system. However, after he observed the circumstances that existed during the flood of 1985, he became certain that the Dykeman Pumping Works provided protection to the lands drained by the Kilbride Pumping Works. He explained that the apportionment of assessments are largely based on judgment. He stated that in this case he judged that the Kilbride lands derived benefit from the Dykeman works. Mr. McGeorge told the Tribunal that the assessments on the Dykeman Pumping Works were prepared based on the proportionate benefit of the system to each of the assessed lands.

Mr. Dobbelaar spoke for the five appellants in summation. He told the Tribunal that the dikes, channel and pumping station comprising the Dykeman Pumping Works functioned in tandem to provide drainage for the whole watershed. He stated that it was not possible to determine any benefit based on the usage of only one of the components of the system. Mr. Dobbelaar told the Tribunal that all lands in the watershed benefited from the Dykeman system and that with respect to the assessment portion of their appeals, the appellants agreed with the assessments as prepared in the June 6, 2005 report and that they wished the assessments under that report to be reinstated.

Mr. Dobbelaar told the Tribunal that with respect to the appeals under subsection 48 (1) (b) of the Act, Mr. Albert DeBot requested that if the Kilbride lands were to remain removed from the assessments, a berm should be constructed on his property to delineate the two watersheds; one for the Kilbride Pumping Works and one for the Dykeman Pumping Works.

September 19, 2006

Mr. Kilbride pointed out that the engineer’s report dated January 19, 1978 (Exhibit 14) called for remedial work on sections of drain on which remedial work was done where the dikes passed the Kilbride lands.

Mr. Kilbride asked the Tribunal to uphold the Court of Revision decision to remove Kilbride lands from any ditching charges in the Report. He argued these lands would have no benefit from ditch cleaning. In the alternative, he asked the Tribunal to order that land profiles with elevations be prepared by a qualified individual, other than Mr. McGeorge, and that if the slope is easterly then the Kilbride lands be removed from the assessment into the Dykeman Pumping Works. He argued that even if there was some justification for assessing the Kilbride lands at a two-thirds rate, if flood waters were ever high enough to enter the ditch there would be no benefit to Kilbride lands. He said if the Tribunal did not agree with him on these points, he asked that it order that the spoil from previous ditch cleanings and the proposed cleaning be removed from the watershed so that flood waters could enter the ditch, as Mr. McGeorge claimed they would. He asked that this be done at Mr. McGeorge’s expense.

Mr. McGeorge said he included the Kilbride lands in the Report as he was firmly convinced they are using all three elements of the drainage works for flood protection and overall benefit. He asked the Tribunal to refer to his previous summation, made March 31, 2006. He said that in his view the Report should be upheld.

Mr. Kilbride added that at the second sitting of the Court of Revision Mr. McGeorge had indicated that at one time he thought the Kilbride lands should have been given a reduction in their assessments.

Mr. Dobbelaar made the final arguments of the appellants. He said the appellants were before the Tribunal because of the Court of Revision decision. He said the Chair of the Court of Revision was not a professional engineer like Mr. McGeorge. He said he agreed that the Kilbride lands should be assessed less than others in the Dykeman Pumping Works because of the Kilbride Pumping Works. He said he understood that pumps are expensive to operate. He said he had a major problem with these lands being charged no assessment because even though they have one pump they are still in the drainage area and this was shown during the 1985 flood. He said zero was not fair and these lands had to be either in the drainage area or out of it. He argued that if the Kilbride lands were assessed 16 percent of the costs of the banks, they should be charged 16 percent of all aspects of the drainage system. In response to Mr. Kilbride’ argument that a deeper ditch would be of no benefit, Mr. Dobbelaar stated the ditch was not to be deepened, just cleaned out. He argued that spoilage spread was just a fact of drainage.

Mr. Dobbelaar reminded the Tribunal that Mr. Albert Debot had mentioned on March 31, 2006 that he wanted a berm installed as he has a 12-inch main and is taking in surface water.

THE FINDINGS

The Tribunal finds that the Dykeman Pumping Works includes three components: ditches, which transmit water and act as reservoirs in times of flooding; pumps, which move the water from within the watershed to outlets outside the watershed i.e., Chenal Ecarte River and Running Creek; and earth embankments, which hold back water from adjacent water courses i.e., Chenal Ecarte River and Running Creek, on an ongoing basis and during times of flooding.

The 1969 Drainage By-Law No. 67-69 (Exhibit 10) indicates that the Kilbride Pumping Works were devised as the most cost effective way to drain the affected agricultural lands on an ongoing basis. The alternative more costly option was to construct a drainage system under Hwy 40 to access the Dykeman ditch system directly. It is the opinion of the Tribunal that the installation of the pump in itself did not remove the Kilbride lands from the watershed served by the Dykeman Pumping Works. The presence of the Kilbride Pumping Works enhances the effectiveness of the Dykeman Pumping Works in protecting the lands within its watershed, which includes the Kilbride lands. The Tribunal finds that the lands within the Kilbride Pumping Works are clearly within the watershed of the Dykeman Pumping Works.

The onus was on Mr. Kilbride to demonstrate that the lands associated with the Kilbride Pumping Works were outside the watershed and he did not do so. The Tribunal was convinced by the testimony of Mr. McGeorge, an engineer with considerable personal knowledge and corporate memory of the watershed area, that the Dykeman Pumping Works serves the Kilbride lands during large storm events. This was supported by eye witness accounts of flooding in 1985.

The Tribunal finds that the extent of the benefit provided by the Dykeman Pumping Works to the Kilbride lands cannot be strictly determined, therefore, this panel accepts the recommendations of the engineer with respect to the assessments on the Kilbride lands, as scheduled in the June 6, 2005 report. The Tribunal agrees with Mr. Cadotte and the engineer that a clerical error had been made in the engineer’s report dated June 6, 2005. The Cadotte property should have been assessed at $110.00, rather than $190.00.

The Tribunal carefully considered the request by Mr. Kilbride to verify the watershed of the Kilbride system and decided not to grant this request. The Tribunal was of the opinion that since the Kilbride system was part of a larger, integrated system i.e., the Dykeman Pumping Works, it should share in the cost of maintaining the larger system and that verifying the Kilbride sub watershed would not provide information that would affect the Tribunal’s decision.

The Tribunal carefully considered the request by Mr. Kilbride to ensure that spoil resulting from maintenance of the ditch system not impede the movement of water. The Tribunal is of the opinion that, given the minimal slope of the land in the watershed, this is a reasonable request. Therefore, the Tribunal recommends that the engineer pay due attention to this concern and ensure that water movement is not impeded by the placement of spoil from the maintenance works described in the engineer’s report dated June 6, 2005. The respondents are directed to Section 64 of the Act.

ORDER OF THE TRIBUNAL

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

1. That the appeals of Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot, Robert Stewart, under Section 54 of the Drainage Act are granted. The assessments for the repair and improvement of the Dykeman Pumping Works under the June 6, 2005 report are reinstated with the exception that the Cadotte property be assessed at $110.00, rather than $190.00.

2. The appeals of Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot, and Robert Stewart subsection 48 (1) (b) of the Drainage Act are dismissed.

3. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works, pursuant to Section 73 of the Drainage Act, and it is ordered that there be no other order as to costs and all parties shall be responsible for their own costs.

Dated at Ottawa, Ontario this 31st day of October, 2006