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, chemin Stone Ouest

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Bruce Municipal Drain No. 19

Municipality of Kincardine

Bruce Municipal Drain No. 19 (RE) 2007 ONAFRAAT 23

STATUTE:

Drainage Act

HEARING:

June 12, 2007

DATE OF DECISION:

October 10, 2007

2007-23

NEUTRAL CITATION:

2007 ONAFRAAT 23

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 Dennis Munro, Tiverton, Ontario and by Kathleen Freer and Gary Freer, Tiverton, Ontario under Section 48⁴ of the Drainage Act from the engineer’s report and under Section 54³ of the Drainage Act from the decision of the Court of Revision on the Bruce Municipal Drain No. 19 in the Municipality of Kincardine.

Before:

John O’Kane, Chair; Rod Stork, Member; Euclid Mailloux, Member

Appearances:

Kate Freer, appellant

Gary Freer, appellant

Ed Dries, P. Eng. on behalf of Mr. and Ms. Freer

Dennis Munro, appellant

Ernie Young, witness for Mr. Munro appellant

Andy McBride, P. Eng. on behalf of the Municipality of Kincardine, respondent

Brad Pryde, P. Eng. witness on behalf of the Municipality of Kincardine, respondent

Andrew Wright, counsel to the Saugeen Valley Conservation Authority, party

Gary Senior, witness on behalf of the Saugeen Valley Conservation Authority, party

DECISION OF THE TRIBUNAL

OVERVIEW

The Bruce Municipal Drain 19 is a drainage project intended to service about 760 hectares (1,875 acres) within a defined watershed in the Municipality of Kincardine (the “Municipality”). The watershed eventually drains to Lake Huron.

The Drainage Act, R.S.O. 1990, c. D.17 (the “Act”) sets up a procedure where the majority of landowners in an area can petition the clerk of the local municipality for construction of drainage works. The municipality must consider the petition and decide whether to go ahead with the works sought. Where a municipality decides to continue with the works it appoints an engineer to prepare a comprehensive report (the “Engineering Report”) about the drain design, costs, and who will share those costs. The essence of the scheme is the parties within the watershed area that benefit from the drainage works bear a share of the costs.

The Tribunal met on June 12 and 13, 2007, and July 12, 2007, to hear the appeals of Dennis Munro (“Munro”) and Kathleen Freer and Gary Freer (“Freer”). All the appellants are farmers in the Municipality.

Munro and the Freers each brought two types of appeal before the Tribunal. One appeal was from the Court of Revision (under s. 54³ of the Act) which confirmed the cost division of the drainage works (the assessments) fixed by the Engineering Report. The second appeal was from the Engineering Report and related to the utility of the drainage works (under s. 48⁴ of the Act). In both types of appeal the Tribunal hears the matters afresh.

Since the assessments for the drainage works were under appeal, all property owners within the watershed received notice of the appeal hearing. We received affidavits of service¹ made by Donna MacDougall, Clerk of the Municipality, who performed the duties of Clerk of the Tribunal.

Mr. Ed Dries, a professional engineer, aided the Freers at the hearing.

Mr. Munro acted as his own counsel at the hearing.

Andy McBride, the professional engineer appointed by the Municipality, and author of the Engineering Report, represented the Municipality.

At the start of the hearing on June 12, 2007, and with the consent of the parties, the Tribunal granted the Saugeen Valley Conservation Authority’s (“SVCA”) motion for party status in the appeals. Andrew Wright, a lawyer, represented SVCA.

SVCA took part in the appeals to address the appellants’ position that SVCA should bear part of the cost of the drainage works proposed in the Engineering Report. Those costs included: a fish habitat study, engineering design related to fish habitat issues; construction related to fish habitat issues; and, three years of fish habitat monitoring.

BACKGROUND

Mr. McBride gave the required section 55 overview that addressed how he made his assessments, as well as providing overall background.

In 1998, a group of farmers in what was then the Township of Bruce petitioned the municipality for drainage of their lands by a drainage works under the Act. Their lands were Lot 7 and part of Lots 11-18, Concession 3, and part of Lots 14-18, Concession 2. In 1999, a municipal amalgamation resulted in the creation of the Municipality of Kincardine.

In 2002, the owners of Lots 21-22, Concession 12, and Lots 18, 21 and 22 Concession 1, petitioned for drainage of their lands.

None of the appellants were petitioners.

The Municipality directed that one Engineering Report² address both petitions.

Mr. McBride explained the work was a large drain serving an elongated watershed flowing north-west.

The proposed drain is mainly an open channel with one closed tributary branch called Branch A and a closed portion near a municipal landfill site.

Mr. McBride explained that his objective was to find a sufficient outlet for water draining through the watershed using the Ministry of Agriculture’s two year storm design criteria.

Mr. McBride explained that he believed he found a sufficient outlet for the drain in a meandering natural watercourse in a pronounced valley in Concession 3, near the lot line between Lots 7 and 8.

Mr. McBride told the Federal Department of Fisheries and Oceans (“DFO”) of the proposed changes to the natural channel in Lot 7, as the outlet for the proposed works. To work as the drain outlet, the natural channel was to be straightened. DFO refused to approve the proposed change to the channel without reviewing the impact of the works on any fish habitat within the channel. Therefore a fish habitat study was undertaken.

Throughout the history of this drain many meetings took place involving Mr. McBride, the affected property owners, including the appellants, the SVCA, the DFO, and municipal officials. Those meetings addressed, among others, design and construction issues, fish habitat issues, environmental and ecological issues, overall costs, and allocation of costs.

Eventually Mr. McBride prevailed on the DFO to approve some scaled back changes to the channel in Lot 7, Concession 3. However, those changes restricted the outlet to 75%. Those changes are in Mr. McBride’s July 2005 Addendum to the Engineering Report. The result of the DFO approved changes was that Mr. Munro, who is at the bottom end of the proposed drain, would not have a sufficient outlet for the water draining across and from his property.

Most of the proposed drainage works will be on cleared agricultural land. The Engineering Report details the allowances to landowners for improvements made to the existing channel.

Mr. McBride filed a changed drawing 14-R, adopting a suggestion made by the Freers to realign the works to make the drain more hydraulically efficient in the west half of Lot 13.

3,530 metres of the drain were proposed to be closed, as it traversed municipally owned lands in Lot 17, Concession 2, which contained a municipal landfill site. This closed portion from the lot line between Lots 16 and 17, Concession 2, and into Lot 18 is made of steel pipe with no joints to protect against leachate from the landfill entering the drainage works. The topography in this part of the drain is hilly. The Municipal Works Department is prepared to level the land so construction will not entail deep excavation. In November 2006, Mr. McBride amended Drawing 6 to reflect the leveling, and to increase the grade from .18 to .43. Mr. McBride asked the Tribunal to approve Drawing 6R in its decision

Branch A is to be 12” to 18” diameter closed drainage tiles about 1,440 metres in length through Lots 13-17, Concession 3. Branch A intersects the main drain at the Munro/Freer property line in the west half of Lot 13, Concession 3. It will provide outlet for surface waters, and subsurface waters, from existing agricultural tile drainage of those properties. The Freer property is systematically tiled: the orientation of the tile is toward the proposed Branch A.

The total cost of the proposed drainage works is $722,600.00. The Engineering Report divided those costs among all the properties. The Engineering Report calls for allowances to some of the landowners under sections 29, 30, 31 and 32 of the Act.

Typographical corrections and revisions to the Engineering Report were distributed to the parties on February 8, 2007.

The Issues

The Munro issues are:

1. Since the proposed drain will not give Munro sufficient outlet, either stop the project or provide Munro compensation for insufficient outlet.
2. Include in the drainage work an unnamed stream that drains into the drain.
3. Reduce the amount assessed for Munro’s farm lane crossings.
4. Change the treatment of excavated material on Munro’s lands, or provide more compensation.
5. Increase Munro’s land value compensation.
6. Order the drain built to a sufficient outlet on Lot 7, Concession 2.

The Freers’ issues are:

1. Stop the drain around Sideroad 10-11, since the proposed costs of the work downstream of that point are largely driven by fish habitat protection issues, rather than drainage issues. The costs for the work downstream of that point outweigh the benefits.

2. The assessments for fish habitat investigations and the proposed related work should not be assessed against the Freers or any individual landowner, but rather, should be assessed to reflect the benefit to the public.

3. The assessments to the Freers related to Branch A are too high.

4. The assessments related to the landfill site are too low.

The Freer Evidence

Ed Dries is a Professional Engineer with many years experience in drainage. He has prepared hundreds of reports for drainage works under the Act. The Tribunal accepted Mr. Dries as an expert in drainage, qualified to give opinion evidence.

Mr. Dries referred to Tab 45 of the SVCA document brief (Exhibit 4), which detailed the basis for the Freers’ section 48(1) and 54(1) appeals.

Besides Mr. Dries, both Gary and Kathleen Freer testified. The Freer witnesses were cross-examined and answered questions from the Tribunal.

Apart from the Freer evidence addressed to the specific issues noted, the Freers testified about the democratic nature of Drainage Act procedures. They suggested a primary concern should be “is it fair to all concerned” relative to the value of each property and the value of the improvement. They criticized the way the municipality and the Court of Revision had not listened to their concerns. They suggested they had not been invited to take part in all meetings, nor were they provided with a preliminary report. They explained how the delay since the process began almost 10 years ago forced them to hire engineering and legal professionals at great personal cost. They also testified the estimated costs of the proposal had increased by about $270,000.

The Freers’ s.48(1) Appeal Issue:

The Freers asked the Tribunal to stop the proposed works at a point just west of Sideroad 10-11. Mr. Dries testified that the overall cost of the works increased because of improvements driven by fish habitat issues rather than drainage issues downstream of Sideroad 10-11.

The upstream landowners in Lots 7-10, Concession 3, should then receive allowances under s.32 for insufficient outlet and under s.33 for loss of access.

Pro-rating the cost saving achieved by stopping the works at Lot 10 would reduce the assessments to all lands assessed on sections of the main drain and Branch A.

Mr. Freer testified that he and his wife had farmed their property for 40 years.

He confirmed that if the drain stopped at Sideroad 10-11 there would be no impact on his property. He knew there was much land “fall” downstream from his land and it always drained. He favoured the cost savings associated with stopping the drain since he would benefit, and Mr. Munro would receive compensation.

The Freers’ s.54(1) Appeal Issues:

(a) Normal Benefit / Normal Outlet Assessments

The Freers challenged the Normal Benefit/Normal Outlet assessments to the Freers’ properties, roll numbered 1-148 and 1-149, on Branch A of the proposed works.

Mr. Dries pointed out that the Freers’ land north of the drain is all underdrained through systematic private tiles installed by the Freers. For now, the shallow open drain is enough for the Freers but not for drainage of the upstream landowners. The Freers have a private agreement with Mr. Munro to allow them access to the main drain on his lands.

Mr. Dries explained that under the Todgham assessment approach there has to be a rationalization of the outlet/benefit splits. For the outlet/benefit splits shown on Exhibit 8, he testified it was too heavily weighted on benefit because the Freers did not need improved drainage. As a result, his opinion was the benefit assessment should be $4,700 on section A1 and $13,800 on section A2.

Mr. Freer testified that he objected to the specific cost allotment to his property for Branch A Sections A1 and A2. He confirmed he asked Mr. McBride for design alternatives related to the drain as it crossed his property. He felt the engineer should have been able to come up with alternatives in 15 minutes. His point was that the relative costs allotted to his property for that extra engineering work was not representative of the engineering work. He also felt he should not have to pay increased costs for dealing with the soil excavated from building that part of Branch A as a closed drain.

Mr. Dries testified that based on information from Mr. Freer, he inferred there was an area of the Freer property where surface water drained to the north and not into the drain. That area was about 2.7 hectares. The resulting adjustments would reduce the Freer outlet liability on roll #148 to 8.9 hectares, and 18.93 hectares on roll #149 of Branch A and to 37.87 hectares on the main drain.

Mr. Freer’s evidence confirmed, with first-hand observations, that the surface water at the north end of his property drains to the north, away from the drain, through three culverts and on to the hydro right of way.

(b) Fish Habitat Cost Assessment Issues

The Freers argued that fish habitat improvements are not integral to the drain’s function, and add to the cost of the works in Lots 7, 8, 9, and 10, Concession 3.

Mr. Dries suggested that the cost associated with the study and construction of fish habitat within the works should be borne by the party requesting the fish habitat studies and improvements.

Mr Dries showed on Exhibit 5 that most of the DFO and SVCA concerns with fish habitat issues were in the portion of the drain to the west of Sideroad 10-11. He stated the portion east of Sideroad 10-11 was a natural channel. Mr. Dries said the enlarged grade profile in Exhibit 5 showed there was enough fall to the west of Sideroad 10-11. His evidence was that improvements to the grade of the channel alongside the outlet would improve the outlet, however, it would still be insufficient. Based on the Engineering Report $86,000.00 was the cost to build the section of the drain west of Sideroad 10-11. Mr. Dries testified that not building the last 2,028 metres of the drain would save $46,644.00. He conceded that allowances payable to Munro for insufficient outlet and loss of access would reduce those savings about half.

He stated that the fish habitat monitoring cost of $5,000 would disappear if the drain stopped around Sideroad 10-11. He also testified that the associated drain maintenance cost assessed to upstream owners would reduce.

Mr. Dries stated that by stopping the drain construction at Sideroad 10-11, the outlet assessments to all lands upsteam of Sideroad 10-11 would also be reduced.

Mr. Dries testified that the cost for fish habitat improvements downstream of Sideroad 10-11 included monitoring, widening of the channel, and scrub tree removal, which were conservatively estimated to cost $12,500.00. He said the fish habitat improvements in no way improved drainage.

Mr. Dries suggested the cost of improving fish habitat should be assessed to the SVCA as it served their mandate of improving the environment.

Mr. Dries relied on an opinion letter from Mr. Andrew Osyany LL.M. dated November 20, 2006 (Exhibit 6, Tab 1). Over Mr. Wright’s objection, the Tribunal admitted the Osyany letter into evidence but ruled that it would receive little weight since Osyany was not present for cross-examination.

Mr. Dries testified that the SVCA had jurisdiction over lands within the Drain #19 watershed. Mr. Dries suggested the SVCA was a “Public Utility” under Section 26 of the Act. He said that it is common practice for drainage Engineers to assess telephone and pipeline utilities for any special drain crossing of the utility. Mr. Dries said the SVCA should bear the extra cost to the works caused by any of its needs. He said that his clients requested the SVCA pay for any costs associated with fish habitat.

He referred to a facsimile message from Mr. McBride to Mr. Senior, of the SVCA, dated, January 14, 2000 (Exhibit 4, Tab, 4). That document, he said, proved that Mr. McBride sought the advice of the SVCA in 2000, before making his own investigation of the lands in Lot 7, Concession 3. Mr. Dries referred to Mr. Senior’s response to Mr. McBride dated January 17, 2000 (Exhibit 4, Tab 5), pointing out the proposed works would need to accommodate fish habitat. He stated that a fish habitat study was conducted on the advice of the SVCA, but that, it was not a requirement under the Act. Mr. Dries said the chronology of communication proved that Mr. McBride had many conversations about fish habitat with a representative from SVCA. He said the SVCA was involved with fish habitat issues from the beginning.

(c) Landfill Site Cost Assessment Issues

Mr. Dries testified that the landfill site in Lot 17, Concession 2, was assessed based on the same characteristics as agricultural lands. He testified that he routinely assesses industrial-commercial lands such as the landfill at a rate four to five times higher than agricultural lands.

His reason was the engineering and construction associated with the landfill site added complexity and cost to the drain. Also it required leachate monitoring. Mr. Dries’ evidence was that this monitoring should be reflected by increased assessments against the landfill site. His opinion was that the assessments against the landfill site should be $64,000 to $80,000 higher.

He conceded that any changes to the landfill assessments would not benefit the Freers.

Mr. Freer testified that a channel dug across the landfill site is responsible for more water flowing in the main drain across his property. He testified that his challenge to the landfill site assessment was a matter of principle for the better of the whole community.

Mrs. Freer testified about a September 2003 document, entitled “Most Practical Drain Design”, which had been presented to landowners. She noted, however, that this document had been amended twice to address concerns about leachate from the landfill site. The amendments increased costs and caused delays. Her point was that the rest of the landowners should not be saddled with the increased costs associated with landfill site issues.

The Munro Evidence

Dennis Munro testified and called Ernie Young, who has done Mr. Munro’s custom combining for years.

Mr. Munro testified that he owns Lots 8, 9 and 10, Concession 3, and Lot 12 and the west half of Lot 13 with his sister. His lands are at the lower end of the watershed. The Report calls for an 8’ deep, 27’ wide channel meandering across his property which will still not address the flooding on his properties.

He is dissatisfied with his allowance for insufficient outlet. He believes there is no point in building the drain if the water cannot reach a sufficient outlet.

He explained that in high flow conditions, his tile drains will flood and will not work until the floodwaters subside, and he will not receive any compensation for that impact on his tile drains. He conceded in cross-examination that even now his tile drains typically flood out in the spring.

He calculated that 8 acres of his land on Lot 8 would regularly flood. He explained that he should get compensation for the long-term effects of flooding on those 8 acres at $2,500 an acre.

He showed the Tribunal photographs and explained how an unnamed stream drains water from part of Lots 11 to 16, Concession 2, into the proposed drain. That unnamed stream should therefore be part of the municipal drain.

He testified that he should receive an allowance of $32,000 to cover the costs to improve several of his farm lane crossings of the drain since building the drain and fencing will restrict access that he previously had.

Mr. Munro testified that he does not accept the Report proposal, to spread excavated spoil on good productive land beside the drain. He asked for damages of $10,000 to address that issue or that some of the spoil fill his old watering holes, at no cost, and some be placed on the buffer strip, next to the drain. In cross-examination, he agreed that the approach to deal with the spoil should be the same for all assessed landowners. He disagreed that the compensation for loss of production staged over 3 years was enough.

He criticized the Report’s approach to valuing his land. He argued that the values were 9 years old. He testified the value of land is the same regardless of location on the farm. He then showed that his lands were uniformly productive. He suggested the .7 factor used in the Report was wrong.

Mr. Munro told us that any costs to accommodate fish habitat should be paid by the public as a public benefit.

Ernie Young

Mr. Young testified that he is a retired Maintenance Supervisor and has farmed for 57 years. He continues to do custom work full-time. He farms 3,000 acres each year. He has done custom work for Mr. Munro for 11 years.

He told the Tribunal that the topsoil in the watershed is Elderslie Silt Loam, which is very productive soil. His view was that the productivity of the soil would be harmed if spoil was spread on top of the soil and that harm would continue for about 20 years. He explained the usual practice for dealing with spoil from excavation is to replace the subsoil and cover it with topsoil.

He showed us, using crop yield mapping from the GPS unit on his combine, that Munro’s lands were equally productive.

Mr. Young explained that he was also a representative of the Soil and Crop Committee for the Ontario Federation of Agriculture, Bruce County branch. He also explained the Bruce County Federation of Agriculture is concerned that the cost of fish habitat accommodations in municipal drainage works are being borne by farmers who have a right to increased production through agricultural drainage.

The SVCA Evidence

Mr. Senior is a 24-year employee with SVCA, responsible for reviewing drainage reports as they relate to SVCA’s regulatory authority. The Tribunal qualified him as an expert to give opinion evidence in the environmental planning field.

Mr. Senior explained the contractual relationship between the SVCA and the DFO that delegates to SVCA responsibilities to review and assess fish habitat issues for the DFO. Where fish habitat issues cannot be mitigated, which was the case with this drain, the DFO retains authority. The SVCA’s authority is over the environmental impact of drainage works built through wetlands.

When the engineer first contacted the SVCA in late 1999-early 2000, Mr. Senior saw from aerial mapping that it was probable that fish habitat issues would arise and he told the engineer of that. He also told the engineer and a group of landowners early in 2000 that the DFO usually requires a fish habitat study and he advised the engineer of who to contact within the DFO.

Mr. Senior testified that he had no involvement with fish habitat issues after November 2000.

SVCA has issued a permit for the drain to alter a watercourse, which is part of SVCA’s regulatory authority. Although that permit has since expired, he viewed it as an administrative matter to reissue a fresh permit when the works proceed.

SVCA only became aware of the Munro and Freer appeals two days before the start of the hearing in November 2006.

The Engineer’s Evidence

Mr. McBride is a professional engineer with over 30 years experience. He was qualified by the Tribunal as an expert to give opinion evidence about drainage matters.

Mr. McBride presented his evidence to respond to the Freers’ appeals issues first, and second, to respond to the Munro appeal issues. As part of the engineer’s case, he called Brad Pryde as a witness to address part of the Freers’ appeal.

The Freer Appeal Issues

Mr. McBride testified the proposed works are good for agricultural lands.

Mr. McBride testified the outlet he originally proposed in Lot 7 was not allowed by DFO. The reason was fish habitat issues. The DFO have allowed for some modest changes to the meander in Lot 7 that will provide some improvements in drainage. Those modest improvements approved by DFO are in the Addendum to his Report. He explained the DFO approved changes will add to the cost of the works that can only be assessed against the lands in the watershed.

Although he conceded stopping the works around Lot 10-11 and providing added compensation for insufficient outlet was possible, he did not believe it was right. His opinion was that the best end for the drain was downstream of the Munro lands where the lands were not used for agriculture. He viewed taking the drain to that point as the best achievement of the section 15 requirement for a sufficient outlet. He felt he would be abrogating his responsibilities under the Act if he stopped the drain at station 0+794.

He testified that he takes direction for assessments from sections 21, 23 and 24 of the Act. Since SVCA does not own any lands in the watershed, he is unable to assess any part of the costs against SVCA.

He conceded the Fish Habitat Study that he sought could be considered a partial environmental appraisal under section 6 of the Act. However, he testified the Fish Habitat Study was not requested by SVCA. He felt required to get the study because of DFO requirements and he was unable to find any authority in the Act to assess any costs against DFO. As a result, he assessed the costs of the Fish Habitat Study against all affected lands and roads.

Three fish biologists involved during the process disagreed with the author of the Fish Habitat Study about the impact of the proposed works on fish habitat.

Mr. McBride testified the Branch A outlet was established because the existing outlet on the Freer property was insufficient. He testified he originally proposed an open drain but Mr. Freer approached him in September 2003 and asked that he develop other choices for consideration. He acted on that request and prepared three other choices. Eventually the Freers selected the tile drain alternative and asked to spread topsoil on part of their land. He felt this alternative would be a benefit to the Freers as it removed the open drain scar and added productive land since there would be no buffer strip. His opinion was the special benefit assessments were reasonable and fair. His development of the assessments for special benefit was based on the time to resolve the Freer’s issues.

Mr. McBride’s opinion was the assessments for normal benefit normal outlet were also fair and reasonable.

Mr. McBride conceded that it had come to his attention that much surface water drains from the Freer lands to the north through culverts in the hydro corridor.

Mr. McBride testified that a closed steel pipe will be used to bypass the landfill site and ensure no contaminated water from the landfill enters the drain. The extra design, material and construction costs associated with these measures were all assessed to the municipality since it owns the landfill. His opinion was the related assessments are fair and reasonable.

Brad Pryde is a professional engineer with over 20 years experience as a consulting engineer. He was qualified to give expert evidence on landfill and waste management issues. He is the president of Pryde Schropp McComb Inc., the consulting engineers appointed by the municipality to monitor and report on the landfill site.

He testified only about ¼ of the municipal site is licensed for landfill use (about 16 of the municipality’s 100 acres).

His opinion was the proposed drain would not increase the “life” of the landfill nor will it increase its value.

He explained the landfill area has a high water-table and they do not want to see any decrease of that because of the drain. The reasoning is the landfill site is a naturally attenuated site where groundwater flowing through the soil of the site acts like a filter to reduce contaminant levels from the buried wastes. The groundwater is monitored and must meet Ministry of Environment (“MOE”) standards. They do not want the subsurface drainage speeded up by the municipal drain. Therefore the drain was designed to route around the landfill and will be built of pipe that is like that typically used in storm sewer construction to prevent groundwater infiltration.

The Munro Appeal Issues

Mr. McBride testified the meandering channel beginning at Lot 7, Concession 3 will only hold 74% of the expected flow but with the proposed overflow channels the design will hold 100% of the expected flow.

He admitted that water will overflow the top of the channel banks during peak flow and there will be resulting flooding on Munro’s lands. He testified that Munro’s tiles are under water during peak flows and that is normal for agricultural drains. He testified the proposed works will still provide improved outflow for Munro’s tile drains increasing them from 8” outflow to 17” outflow. He testified that it is not standard practice to compensate owners for normal occasional flooding. His opinion was the reasonable and fair approach is to compensate Munro $4,600 for insufficient outlet under s. 32 of the Act.

Since there was no petition to include the unnamed stream he was unable to include the catchment area of the stream in this municipal drain. However the flow from the stream was considered in the design and the lands were assessed under section 23 of the Act. He testified that such a petition could be made in future. He agreed that he heard a petition had been signed but never presented to the municipality.

Mr. McBride testified the environmental regulatory agencies require fencing to keep livestock out of drains. He also testified it was simply good farming practice. In his experience standard farm lane crossings were 6 metres wide but Mr. Munro wanted 11 metre crossings to accommodate farming equipment. Mr. McBride considered Munro’s request a special benefit and decided it was fair and reasonable to assess Munro for the added costs over a standard 6 metre crossing.

Mr. McBride testified about how he approached the issue of dealing with the spoil excavated from Munro’s lands. He felt spreading it over a 3 metre buffer would create a berm that prevented surface water draining into the ditch and therefore he came up with the idea to spread it on the fields next to the buffer. He then calculated compensation for crop loss on a 3-year declining basis. He did confirm there were alternatives such as trucking the spoil away for disposal or stripping topsoil to spread the spoil and then cover it with the topsoil. He testified if the owners are prepared to pay the extra costs associated with those alternatives, he can address that issue. DFO had originally wanted a 6 metre buffer but the owners objected to that and it was through negotiation with DFO and the owners that a 3 metre buffer developed. He is familiar with other drain works throughout the province where 6 metre buffers are used. He also confirmed his belief that DFO would amend its authorization if the buffer strip was widened to 6 metres, provided it was immediately reseeded to act as an area of vegetative filtration.

Mr. McBride used land values from a federal agency and he used the highest rate of $2,500 an acre. He applied a .7 factor for lands next to the drain based on his view that since that area is sloping and subject to flooding it is less valuable. He used it across all the open drain portions so if it changes for Munro, it should change for all.

Closing Arguments

Mr. Munro’s closing arguments are grouped into several sections.

1. Since the engineer confirmed that water will spill over the top of the drain on Lot 8, Concession 3 and compromise his tile drain function that part of his property should not be assessed for any benefit.

2. If the drain project goes ahead he should get compensation of $20,000 for insufficient outlet. He calculates that based on $2,500 an acre for 8 acres.

3. The collection area for the unnamed stream should be incorporated as part of the report for Drain # 19 so that flooding of his land due to water discharged onto his property from the unnamed stream could be appropriately addressed.

4. Since the report requires fencing to restrict livestock from open sections of the drain the configuration of drain crossings restricts the equipment he will be able to drive across the drain crossings. He asks that there be no assessment made against his property for wider drain crossings that will accommodate his equipment or his custom operator on the theory that the fencing requirement will impair his use of the drain crossings.

5. He argued that spreading excavated spoil from the drain will reduce the productivity of the lands adjacent to the drain. He seeks an allowance of $10,000 for damages to productive soil on his properties in Lots 8, 9, 12, and 13, Concession 3. In lieu of some compensation he would accept some spoil to fill old cattle watering holes, provided there is no cost to him.

6. He argued the engineer’s land valuation approach was faulty. He submitted productive lands across farm property should be valued equally. He submitted the engineer’s valuation factor of 0.7 be changed to 1.00 to reflect the true land value.

7. He argued the drain should be continued to a sufficient outlet in Lot 7, Concession 3, as proposed by the engineer September 2, 2005. He submitted that any damage to fish habitat could be addressed by a fish habitat compensation plan. As an alternative however, he submitted he should receive compensation for insufficient outlet in a range between $46,644 and $66,634.

Mr. and Mrs. Freer together provided the following closing arguments.

1. Mr. Freer argued to terminate the drain at Station 0+704 and to pay allowances for insufficient outlet and loss of access under Sections 32 and 33 of the Act. He submitted any cost savings from stopping the drain at that point be pro-rated against the outlet assessments for the upstream lands.

2. He argued that fish habitat accommodations in drain design and maintenance costs did not improve the drain functioning. He submitted the $12,500 estimated cost of fish habitat accommodation be assessed to the SVCA. He submitted the fish habitat monitoring as well as the Fish Habitat Impact Assessment cost of $15,000 should be assessed to SVCA under Section 6(1) of the Act.

3. Mr. Freer submitted that his properties in Concession 3, roll numbers 1-148 and 1-149, did not receive the benefit and outlet reflected in the proportions under the report. He argued the benefit to outlet ratio of assessment for his properties roll number, 1-148 and 1-149 on Section A-1 of Branch A be adjusted to a ratio of 30 percent benefit and 70 percent outlet. He requested that the reduction in outlet be prorated against all assessed properties on Branch A of the proposed works. Mr. Freer requested that the benefit outlet split be reapportioned for roll number 1-149 on Section A-2 of the drain to 50 percent benefit, 50 percent outlet, with reduced assessments being prorated as outlet assessments against all lands assessed on Branch A.

4. Mr. Freer submitted that his discussions with the engineer about the design of alternative proposals should be a normal cost associated with a drainage works. He argued the related assessment of $3,000.00 for special benefit should be assessed against all lands assessed on Branch A of the drainage works rather than against his land.

5. He argued that surface water runoff from roll 1-148 and 1-149 was mostly toward the north away from Branch A and therefore the surface water runoff area assessed to his lands should be reduced from 10.18 hectares to 8.9.

6. Mr. Freer argued that the assessment of the landfill site in the report did not reflect the type of land use. He submitted that the benefit assessment for the landfill site be increased to reflect a land value at four to five times the value of agricultural land and to decrease the assessments against all properties upstream of the landfill site.

7. Mr. Freer argued that the assessments were not fairly apportioned and that the SVCA should bear the cost of requesting an environmental appraisal (the fish habitat study). He submitted that the delay, changes to the report and increased cost were attributed to the municipality’s concerns about the landfill site. The need to hire professional representatives and the delay financially burdened him and Ms. Freer and therefore they asked for an order requiring the municipality to pay them costs of $3,000.

Mr. Wright delivered the following submissions for the SVCA.

1. He submitted that there was no drainage petition before the Tribunal for the collection area of the unnamed stream.

2. He referred to Section 35 of the Fisheries Act which prohibits interference with fish habitat. He submitted that compliance with Section 35(2) of the Fisheries Act may result in added cost to a drainage project.

3. Mr. Wright argued that although Mr. Senior advised Mr. McBride about fish habitat issues, the fish habitat study was requested by Mr. McBride not the SVCA.

4. Mr. Wright submitted it would be an absurd interpretation of the Act to find the SVCA was a public utility under the Act. He submitted that in any event the SVCA does not own land in the drainage area.

5. Mr. Wright argued the Tribunal did not have jurisdiction over the DFO. He submitted the SVCA should not bear the responsibility for any fish habitat related issues that are mandated under the Fisheries Act.

Mr. McBride structured his arguments to address first the Munro appeals, followed by the Freer appeals.

1. He submitted in response to Mr. Munro that:

a) There was a valid petition for drainage under the Act.

b) The original design was modified to accommodate fish habitat issues dictated by the Fisheries Act and the DFO.

c) The assessments he made were fair and reasonable.

d) Land values were based on data from 2003.

e) Mr. Munro’s request for compensation for 8 acres of land due to insufficient outlet, loss of access and normal seasonal flooding was excessive. The drain was designed based on the two year storm model and seasonal flooding of systematic tile drains is a normal occurrence.

f) Under the Act he has no authority to prepare a report for drainage of the unnamed stream without a petition.

g) He prepared the report using standard farm lane crossing widths of six meters. Therefore if Mr. Munro wanted wider crossings, he should pay for those since it was a specific benefit to Mr. Munro.

h) The spoil damage was calculated at 100 percent crop loss for the first year after construction, 66.6 percent for the second year, and 33 percent for the third year respectively. That would result in about $20,000 to Mr. Munro over the three years. He conceded there are alternatives to deal with the spoil such as replacing topsoil over spoil, or hauling spoil away. However the approach should be applied equally across the drainage project. The alternatives, he argued, would add to the cost of the project. He submitted that landowners who wanted a different treatment for the spoil should be assessed half the costs.

i) He was not opposed to preparing a compensation package for loss of fish habitat, if the Tribunal ordered the drain continued to a sufficient outlet in Lot 7. However, in that event he asked the panel seize itself of the matter to deal with the revised report.

2. He submitted in response to the Freers that:

a) He would have been negligent to prepare the report and terminate the works at Sideroad 10-11.

b) The assessments against the Freer properties on Sections A-1 and A-2, Branch A are fair and equitable, however, on review he conceded the hydro corridor north of the Freer properties provides more drainage of surface waters than he initially estimated and therefore the assessments against the Freer lands should change to reflect the volume of surface water drained to the north.

c) Based on his 30 years as a drainage practitioner when a party asks for special amendments to the drain they are responsible to pay the increased costs.

d) Historically, the DFO has not been sympathetic toward drainage practitioners in the drainage industry. DFO considers drainage proponents like urban landowner developers. In those cases the user or developer pays the costs of the drainage infrastructure.

e) He does not interpret the Act broadly enough to consider the SVCA assessable, under Section 26.

f) He assessed the area occupied by the municipal landfill site as agricultural land. A closed steel pipe would be used for the drain to by-pass the landfill site and ensure that leachate from the landfill would not enter the drainage works. The increased cost of that stretch of the drain and the enhanced piping was assessed to the Municipality.

g) He argued the drainage works will not provide any special services for the landfill site.

The Findings

The Tribunal recognizes that for the landowners affected by Bruce Drain #19 this has been a long and difficult time. We heard and understand the frustrations borne of delays stretching almost a decade, increasing costs, and seemingly unrelated issues dictated by a federal government ministry.

With that recognition as our starting point we remind ourselves the Drainage Act is legislation with long history in Ontario’s rural communities.

The Act provides a democratic means for the majority of landowners in a watershed area to petition for improved drainage. The Act directs sharing overall costs of the drainage works among all the landowners in the watershed. Some landowners will benefit from the drain while others may be burdened by the drain. The Act directs that the design and dividing of the benefits and burdens be entrusted to a specialized expert, the drainage engineer. The engineer’s design decisions and apportionment decisions however are not necessarily the final word.

Consistent with our country’s respect for the principle of due process, the Act sets up the right to appeal to the Court of Revision, this Tribunal and the Drainage Referee if dissatisfied with design or assessment issues.

1. Reverting to the Engineer’s Original Design.

The fish habitat issues that had such an impact on the drain design and this hearing warrant some context from this Tribunal.

• The Tribunal is established under provincial legislation.
• The Tribunal does not have jurisdiction over matters within federal jurisdiction.
• Fisheries are matters that fall in the constitutional jurisdiction of the federal government.
• The Tribunal cannot direct the engineer to disobey federal legislation.

The Tribunal cannot therefore direct the engineer to revert to his original drain design. Once the DFO communicated to the engineer the proposed design would impair fish habitat, the engineer was obliged to develop design variations to ameliorate the potential effects on fish habitat to comply with federal law.

While the design changes are not dictated by drain engineering concerns it is not proper to suggest the associated increased costs should not be borne by the landowners in the watershed. None of the rights enjoyed in our society are absolutes. If the drain crossed an environmentally sensitive area that required complex and costly engineering solutions, the landowners on the drain would still pay those associated increased costs. So too with fisheries related increased costs.

Therefore the Munro and Freer appeals over the increased costs of designing and building the drain because of fish habitat, including continued monitoring are dismissed and those parts of the Report are confirmed.

We recognize there are competing constitutional authorities that will arise when drainage works are proposed in areas of fish habitat. It is unfortunate there is no adjudicative body with authority to address the competing interests of landowners and, as in this case, the DFO. The result is landowners are left with the unfortunate perspective that they have no due process recourse when dealing with DFO.

2. Assessing Costs of the Drain to SVCA

We accept that the SVCA was the first line of contact for the engineer with respect to fish habitat information. We do not accept however that the SVCA dictated or directed that a fish habitat study be made. SVCA acted as a responsible commenting agency and alerted the engineer to the potential for fish habitat issues and the likely consequences should DFO become involved.

We accept Mr. Wright’s arguments that the definition of public utility in the Act cannot be interpreted to include the SVCA. We also accept the fact that SVCA does not own any land in the watershed and therefore is not liable for any assessment under the Act.

For these reasons there is no basis to assess any costs of the drain against the SVCA.

The decision to obtain the fish habitat study was made by the engineer. The engineer is appointed to act on behalf of the municipality to superintend the entire drain from petition to construction. With that in mind, it is our view the appropriate party to be assessed for the costs of the fish habitat study is the municipality. We accept part of the Freer submissions from Mr. Dries that the fish habitat study is an environmental study under section 6 of the Act. It was not a comprehensive study of all aspects of the environment but we do not find that to detract from its status as an environmental appraisal. Since it was commissioned by the engineer it is our view it qualifies as an environmental appraisal initiated by the municipality under section 6(2) of the Act.

Therefore we direct the costs of the fish habitat study which we understand are $5,400 to be assessed against the Municipality and that part of the Report is amended accordingly.

3. Compensation for Insufficient Outlet

We accept Mr. Munro’s evidence that about 8 acres of his land in Lot 8, Concession 3 will face extended periods when his tile drains will not work. Mr. Munro seeks compensation based on $2,500 an acre for insufficient outlet, loss of access and seasonal flooding.

There was no dispute over the $2,500 an acre value although the engineer proposed factoring that value by .7 on a theory the land near the drain was less valuable than lands elsewhere on Munro’s farm.

We do not accept the engineer’s approach to valuing the compensation for insufficient outlet. We also do not accept the .7 factor approach to value on Munro’s lands. The evidence supports Munro’s position that the lands are uniformly productive.

Therefore there is no basis for us to decide the value should be factored and we allow that part of Munro’s appeal. Since the engineer used that factored approach on all sections of the open drain we direct him to modify his Report and the assessments accordingly.

We direct the engineer to revise the Report to provide compensation to Munro for insufficient outlet based on 8 acres at $2,500 an acre.

4. The Excavated Spoil and the Buffers

The excavated spoil issue presents a conundrum with no simple solution.

Impacting on this issue are the buffer strip requirements imposed on the drainage works by a federal agency (DFO) that this tribunal has no jurisdiction over. Add to that the principles of good farming practices and land stewardship and the incongruity of spreading waste soil on top of good productive topsoil, thereby injuring the productivity of that land. Finally we have several possible solutions, however, each one comes with a significant cost. The eventual question is who will pay.

The engineer designed the buffer strip at 3 metres. We understood this width to be a compromise achieved with DFO, the landowners and the engineer. However, we see varying the width of the buffer as the best approach to deal with the excavated spoil.

Therefore the Tribunal allows Munro’s appeal about the buffer strips in part. We direct the engineer to revise the width of the buffer strips to 6 metres. We understand this will entail seeking an amendment to the DFO permit, however, given the buffer will increase to a size close to that originally wanted by DFO, we expect the permit revision to be a non-issue.

We further direct the engineer to revise the report to provide the excavated spoil will be contoured over the widened buffer strips.

Because of widening the buffer strips, we direct the engineer to recalculate the allowances for the lands taken by the increased buffer width and the allowances for crop losses.

This solution, while not perfect, will lessen the loss of good productive farmland. It will provide a wider buffer strip that will be safer for the landowners to maintain with farm equipment. It will also provide a more efficient filter between the farmlands and the drain. It will also provide added land mass next to the drain that may have the added benefit of providing increased drain capacity. The costs of this approach will be assessed to each of the landowners.

The engineer accepted that an arrangement can be made with Munro to use some of the spoil to fill old waterholes and we expect that will happen.

5. The Unnamed Stream

We accept the engineer’s submissions that he cannot include the unnamed stream in his Report as part of the municipal drain without a petition under section 4 of the Act.

Therefore we dismiss Munro’s appeal about the unnamed stream. As noted by the engineer during the hearing, it is open to the landowners in the area to bring forward a petition to incorporate that unnamed stream into the municipal drain.

6. The Munro Farm Lane Crossings

We accept the engineer’s evidence of the 6 metre standard width for farm lane crossings. We also accept the evidence that Munro’s custom operator uses equipment that is too wide to simply drive across a standard farm lane crossing. That is because the drain on either side is fenced to prevent livestock from fouling the drain waters.

However, we also accept the evidence that the equipment in question can be disconnected on one side of the crossing, trailered over the farm lane crossing and then reattached.

Munro wants 11 metre wide farm lane crossings to save the time to disconnect the combine head and trailer it over the crossing where it is reconnected. We see that as something Munro wants that is different or “more” than other landowners will receive with standard farm lane crossings.

Therefore, if Munro wants those wider crossings he will have to pay for them. Therefore we dismiss the Munro appeal seeking an allowance for wider farm lane crossings.

7. The Branch “A” Assessments

The engineer conceded that more of the surface water from the Freer property drains to the north and away from the drain than he had previously believed. He conceded that in the circumstances the Report and the corresponding assessments ought to be changed accordingly.

Therefore the Tribunal directs the engineer alter the Report to reflect that 8.9 hectares rather than 10.19 hectares from roll numbers 1-148 and 1-149 drain into Branch A.

We find that, like most affected landowners, the Freers consulted with the engineer about issues unique to their property. The Freers asked the engineer to develop several alternatives for the drain on their lands. When parties engage the engineer in these exercises it should be understood it is for their specific benefit and not for the overall benefit of the drain. That is why the Act provides that such special benefits are assessed against the requesting landowner.

Therefore, apart from the revisions to the assessments arising from the changed area that drains into Branch A, we dismiss the Freer appeals of the Branch A assessments. We find the assessments made by the engineer were reasonable and fair. The engineer used the “Todgham” method for assessment. We note as a general observation the assessments required under the Act are not simple arithmetic calculations. They need a good deal of expertise and the exercise of judgment and discretion by the engineer. We are not satisfied that the evidence presented by the Freers about the balance of the assessments related to their lands were unreasonable, unfair or wrong.

8. The Landfill Site

The Freer’s arguments about the land value used by the engineer to determine the assessment of the landfill site are compelling.

The engineer used agricultural land values to determine the value of lands used for an industrial use. The Freer’s suggested the value should be 4-5 times that of agricultural land. Mr. Dries’ evidence was that in his drainage practice he values industrial land at 4-5 times agricultural values. We accept that as the only evidence about industrial land values.

Therefore we direct the engineer to recalculate a suitable industrial value for the area within the licensed landfill footprint based on $10,000 an acre. Once that value is completed we direct the engineer to reapportion the upstream assessments accordingly.

9. The Freer’s Costs of the Appeal

The Tribunal has authority to grant costs of the hearing to a party.

The Tribunal, to guide itself in exercising that authority, has developed rules that help when considering costs.

Rule 28.01 of the Tribunal Rules of Procedure allows a party to seek costs where the party believes another party acted clearly unreasonably, frivolously, vexatiously or in bad faith.

The Tribunal, when considering a claim for costs, must consider the entire circumstances of the hearing and whether any party acted “clearly unreasonably”, “frivolously”, “vexatiously” or “in bad faith”.

Although there have been significant delays with this drainage petition and significantly increased costs from the original estimates, we find there is not enough evidence of those four factors to warrant a cost award in this case.

ORDER OF THE TRIBUNAL

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

1. The $5,400 costs associated with the engineer obtaining a fish habitat environmental study are assessed against the Municipality and the engineer will amend the Report accordingly.

2. Mr. Munro will be compensated for insufficient outlet based on 8 acres at $2,500 an acre for a total of $20,000 and the engineer will amend the Report accordingly.

3. The buffer strips will be revised to a width of 6 metres. The excavated spoil will be contoured over the buffer strips. The engineer will:

a) recalculate the allowances for land taken by the increased buffer and the allowances for crop losses;

b) assess the costs for dealing with the excavated spoil to each of the landowners;

c) amend the Report accordingly.

4. The engineer will amend the Report to reflect that 8.9 hectares from roll numbers 1-148 and 1-149 drain into Branch A and revise the associated assessments accordingly.

5. The engineer will recalculate the land value for the licensed landfill area using an industrial land value of $10,000 an acre and re-apportion the assessments against the landfill site and the lands upstream from the landfill site and amend the Report accordingly.

6. The engineer will amend the Report to reflect the changes to Branch A as shown on drawing W99403-14R.

7. The engineer will amend the Report to change the gradient of the Main Drain – Closed Portion from 0.18% to 0.34% between Stations L0+000 and L0+440 as shown on drawing W99403-6R.

8. The engineer will amend the Report to incorporate the revisions detailed on the engineer’s revisions sheet dated January 31, 2007.

Dated at Brampton, Ontario this 10th day of October, 2007.

Notice

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. R.S.O. 1990, c. D.17, s. 54 (2); 2006, c. 19, Sched. A, s. 6 (1).

Procedure

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, c. D.17, s. 54 (3); 2006, c. 19, Sched. A, s. 6 (6).

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

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

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1); 2006, c. 19, Sched. A, s. 6 (1).

Appeal by Director

(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, c. D.17, s. 48 (2); 2006, c. 19, Sched. A, s. 6 (1).

Footnotes

1. 448. (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,
2. 354. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1); 2006, c. 19, Sched. A, s. 6 (1).
3. 1Exhibits 1 and 2
4. 2Exhibit 3 – July 2005 Revised Engineer’s Report by R.J. Burnside & Associates Limited