Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omaf@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omaf@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Ross Drain - 2004
Township of Norwich
Ross Drain – 2004 (RE) 2006 ONAFRAAT 43
STATUTE:
Drainage Act
HEARING:
October 3, 2006
DATE OF DECISION:
October 31, 2006
2006-43
NEUTRAL CITATION:
2006 ONAFRAAT 43
ROSS DRAIN 2004 - Township of Norwich
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.
AND IN THE MATTER OF:
An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Keith Armstrong, Woodstock, Ontario under Section 64 of the Drainage Act with regard to the Quality of Construction of the Ross Drain - 2004 in the Township of Norwich.
Before:
Gene Trotman, Vice Chair; Jack Young, Vice Chair; Ron Gelderland, Member.
Appearances:
Mr. Keith Armstrong, appellant
Mr. John Kuntze, P. Eng., K. Smart Associates Limited, the Engineer who prepared the Report
Mr. Robert Hird, assessed landowner
Mr. Greg Deming, WD Excavating Contractor, witness for the Municipality
HEARING OF THE APPEAL BY THE TRIBUNAL
This appeal was heard in Otterville, Ontario on October 3, 2006. Mr. Keith Armstrong (the Appellant) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act) with regard to issues arising from the quality of construction of the project constructed pursuant to a report on the Ross Drain 2004 dated July 8, 2004, (the Report) prepared by K. Smart Associates Limited and signed by John Kuntze P. Eng. (the Engineer).
Ms. Betteanne Cadman, Clerk-Administrator of the Township of Norwich (the Municipality) performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. An Affidavit of Service was filed with the Tribunal as proof that all parties had been served with notice of the hearing.
STATUTE INVOKED AND CONSIDERED
Section 64 of the Drainage Act, R.S.O. 1990:
“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 drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17,”
THE BACKGROUND
The Report on the Ross Drain 2004 was prepared pursuant to Section 78 of the Act, following a request by owners for repairs and improvements to the Ross Drain 1976.
The objective of this report was “to provide relief for a flooding problem in the north part of Lot 12, Concession 4 (East Oxford) at the head of the Ross Drain 1976.” The construction work involved in the project included the following:
the cleaning out of a portion of the open channel of the existing Elliott Drain on the Armstrong property (Part of NE ¼ of Lot 10, Concession 4),
the construction of a new 450 mm tile drain to parallel the existing 400 mm tile on the Elliott Drain, Branch B on the Armstrong property,
the construction of a new road crossing and catch basins on Oxford Centre Road,
the construction of a new tile drain across the south halves of Lots 10, 11 & 12 of Concession 3, to replace the Ross Drain 1976 tile drain from the road crossing to the mid point of Lot 12,
the construction of a Branch from the mid point of Lot 12 to Oxford Centre Road; and
the construction of a new road crossing and catch basins on Oxford Centre Road.
A contract for construction of the work was awarded to WD Excavating (the Contractor), and it has been substantially completed, however, a Certificate of Completion has not been issued.
Mr. Keith Armstrong, appealed to the Tribunal under Section 64 of the Act alleging that there were a number of deficiencies in the construction work and that additional damages to his lands and crops had occurred as a result of the construction.
THE ISSUES BEFORE THE TRIBUNAL
Was the Ross Drain 2004 constructed and completed in accordance with the drawings and specifications?
Did the appellant suffer additional damages due to the construction?
THE EVIDENCE
John Kuntze
The Engineer, John Kuntze, told the Tribunal that a written agreement (the Minutes of Settlement), which bears his signature on behalf of the municipality, had been reached between the Municipality, Mr. Deming, (the Contractor) and Mr. Armstrong (the Appellant) and that all parties have been signatories thereto. Mr. Kuntze told the Tribunal that some of the issues settled would require the assessment of new costs against the project. He summarized the items that had been settled by agreement as follows:
That allowance for damage to land and crops on the Appellant’s property will be increased by $400.00. Additional land and crops were disturbed during the location, excavation and connection or capping or both, of lateral tile drains on the Appellant’s property.
That of the $400.00 increased allowance, $200.00 would be deducted from the Contractor’s final payment and $200.00 would be added to the final cost of the construction work.
That the lateral drains on the Appellant’s property had to be correctly located and excavated, as this exercise was protracted when the Contractor backfilled the open trench before it could be determined which lateral drains were to be connected or capped.
That the trench was re-dug and, as a consequence, the Contractor will not be compensated for re-digging the trench.
That due to the shallow depth of the lateral drains on the Appellant’s property (70 centimeters whereas, the new tile was 2 meters below the surface) the lateral drains should be connected to a newly installed header, to outlet into the Elliott Drain ditch.
That the trench for the new header was necessary regardless of the Contractor having back filled the initial exploratory trench.
That during the cleaning out of the open portion of the Elliott Drain, which provides outlet for the Ross Drain 2004 tile, the Contractor inadvertently damaged the tile and a rodent gate at the point of outlet. Mr. Armstrong, the Appellant, repaired the damages and has received payment for the repairs thereof. As a consequence, the cost of repairs shall be deducted from the final payment to the Contractor.
That some connections for the lateral tiles were missed and in the Spring of 2006, Mr. Armstrong made the connections at his own expense. He shall be compensated for so doing.
That Mr. Armstrong will hire a third party independent contractor to excavate, and check that the lateral tiles have been capped on the west side of the new Ross Drain trench, and to cap them if necessary. The cost of investigating and capping, if necessary, has been estimated to be no more than $600 all of which shall be at the expense of the Contractor, WD Excavating.
That the Contractor shall pay Mr. Armstrong $1500.00 to compensate him for lost topsoil that occurred while connecting the lateral tiles and during the construction of the Ross Drain 2004.
That the Engineer will investigate and restore the function of the Elliott Drain Branch B, which is the existing 400 mm tile parallel to the Ross Drain on the Armstrong property which ceased to function in the summer of 2006, before issuing a Certificate of Completion on the Ross Drain 2004. A visual inspection is planned within 10 days following the hearing.
That berms constructed on the upstream portion of the Ross Drain will be stabilized and their proper construction assured before the Certificate of Completion is issued on the Ross Drain.
Keith Armstrong
Mr. Armstrong told the Tribunal that Mr. Kuntze characterized the issues under appeal as having been resolved, however he wanted it to be known that he had found that the construction work was not satisfactorily completed. He referred to the lateral tiles, stating that he had found that one was connected to the header while another remained uncapped. Mr. Armstrong stated that he was dissatisfied with the spreading of topsoil and that he wanted his lateral tiles connected to the header. He requested that the upstream berms be checked for adequate construction and that they be stabilized. Mr. Armstrong stated that he was concerned that under the Minutes of Settlement only two exploratory holes would be dug to assess the extent of the lateral tile connections. He told the Tribunal that he preferred to check each lateral tile. Mr. Armstrong said that he had accurate mappings of the location of the lateral tiles.
Mr. Armstrong responded to questions that he was generally satisfied with the provisions of the Minutes of Settlement, however, he wanted to ensure that all the lateral tiles were connected or capped. He stated that it would be agreeable to him to amend the Minutes of Settlement to provide for capping and connection of the lateral tiles.
Mr. Kuntze responded to Mr. Armstrong’s concerns stating that he was agreeable to an amendment to the Minutes of Settlement to provide compensation for excavating and ensuring the capping or connecting of the lateral tiles. He stated that according to the Minutes of Settlement he was committed to inspecting the upstream berms for proper construction and stability.
Mr. Deming, the Contractor, stated that he was also agreeable to amending the Minutes of Settlement to provide compensation for the excavation, capping and connecting of Mr. Armstrong’s lateral tiles.
Robert Hird
Mr. Hird told the Tribunal that he was a dairy farmer and a landowner in the south half of Lot 12 Concession 3. He stated that the Contractor had clipped his electric fence while leveling the spoil around a catch basin, and that the ruts created by construction equipment have not been leveled and in addition the catch basin is located in a depression so deep that it is half the height of a dairy cow. He explained that the depression and ruts were not filled in during the summer when the soil was dry and that although he is not well versed in the technical aspects of drainage structures, he had concerns that the catch basin was improperly installed because of the deep depression. Mr. Hird said that he would like to know when the soil would be properly leveled off.
Mr. Kuntze responded to Mr. Hird’s concerns stating that he understood that the Contractor was supposed to return to Mr. Hird’s property to level the soil after the corn had been harvested.
The Tribunal adjourned at the request of Mr. Kuntze, Mr. Hird and Mr. Deming. At the resumption of the hearing Mr. Hird and Mr. Deming submitted their signed agreement (Exhibit 4) indicating that the Contractor was required to connect any unconnected tiles on Mr. Hird’s property in an area where blow outs had occurred, and that the Contractor would return to level soil when weather conditions permitted. The agreement provided for the hold back of funds from the final payment to the Contractor until such time as the leveling was completed.
Greg Deming
Mr. Greg Deming, the Contractor, told the Tribunal that he was concerned that he might be held responsible for an excessive cost of excavating and capping Mr. Armstrong’s lateral tiles if a third party contractor were employed to do the work. He stated that he was in agreement with an amendment to the Minutes of Settlement stipulating that he would compensate Mr. Armstrong in the amount of $400.00 for additional work to his lateral drains.
The Minutes of Settlement (submitted into evidence as Exhibit 3) signed by the Contractor, the Engineer and the Appellant, were amended to reflect the agreed upon amendment to Item 4. The three parties initialed their consent to the changes.
This document is now referred to as the “Amended Minutes of Settlement.” and
“Amended Exhibit 3”.
Wayne and Elizabeth Buchanan
Prior to the hearing, assessed landowners Wayne and Elizabeth Buchanan submitted a letter dated September 26, 2006 to the Tribunal (Exhibit 6). Mr. and Ms. Buchanan indicated that they would be out of the country at the time of the hearing but that they wished the Tribunal to consider their concerns. In their letter, they stated that a tree had been unnecessarily cut down to accommodate the drainage trenching, the driveway was unusable due to a washout after a heavy rain in February, the east side of their lawn was still without top soil, water pools around the new catch basin, and that water does not flow southward from the tile drain to outlet into the ditch which indicates that the ditch is not functioning as it should.
Mr. Kuntze responded to the concerns identified in Mr. and Ms. Buchanan’s letter dated September 26, 2006. He stated that unfortunately the tree that was cut down cannot be remedied. He stated that the drain consisted of tile of two different sizes where the drain was located at Mr. and Ms. Buchanan’s laneway. He said that new tile matching the larger 14 inch tile was installed to ensure that adequate bore was available at the laneway. Mr. Kuntze acknowledged that the non functioning Elliott Drain Branch B would be investigated and corrected before a Certificate of Completion was issued. Mr. Kuntze told the Tribunal that he was committed to resolving the issues raised before issuing the Certificate of Completion. He stated that issuing the Certificate of Completion does not prevent the right of dissatisfied landowners to appeal later under Section 64 of the Act.
THE FINDINGS BY THE TRIBUNAL
The Tribunal found that there were substantial merit in the issues raised and that the Amended Minutes of Settlement, signed on behalf of the Appellant, the Municipality, and the Contractor, and attached hereto as SCHEDULE #1, is a satisfactory resolution of the those Issues.
The Tribunal found in addition, that the sum of $1,423.13, as referenced in Items 1 & 3 of the Amended Minutes of Settlement, should be added the final cost of the project.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made, the Tribunal orders that:
The parties to the Amended Minutes of Settlement as attached to this decision as SCHEDULE # 1, are hereby ordered to complete the undertakings contained therein.
The sum of $1,423.13, as referenced in Items 1 and 3 of the Amended Minutes of Settlement, shall be added to the final cost of the project.
In accordance with Section 73 of the Drainage Act, R.S.0. 1990, c. D 17, the non-administrative costs of the Township with respect to this appeal shall form part of the cost of the construction work. It is further ordered that there be no other order as to costs and that all parties shall be responsible for their own costs.
Dated at Ottawa, Ontario this 31st day of October, 2006.