Hierons Drain (Re), 2007 ONAFRAAT 26

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.omafra@ontario.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Hierons Drain

Township of Tehkummah

Hierons Drain (RE) 2007 ONAFRAAT 26

STATUTE:

Drainage Act

HEARING:

September 26, 2007

DATE OF DECISION:

November 19, 2007

2007-26

NEUTRAL CITATION:

2007 ONAFRAAT 26

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 Township of Tehkummah, Ontario under Section 64 of the Drainage Act from the quality of construction of the works under the engineer’s report on the Hierons Drain in the Township of Tehkummah.

Before: Rod Stork, Chair John O’Kane, Vice Chair Ron Gelderland, Member

Appearances: Mr. M. James, Counsel, Township of Tehkummah Mr. Ron Hierons, Land Owner Mr. David Jaggard, Land Owner Mr Jim Anstice, Land Owner Mr. Terry Gordon, Land Owner Mr. Rick Gordon, Land Owner Mr. Colin Trivers, P. Eng. Drain Engineer Mr. John Tait, Tait Brothers Contracting, Drain contractor

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) heard this appeal in Council Chambers, Township of Tehkummah, Tehkummah, Ontario on September 26, 2007. The Township appealed to the Tribunal under Section 64 of the Drainage Act (the Act).

Mr. M. James, Counsel for the Township gave a brief outline about why the Township appealed. There is a disagreement between the Township’s Engineer, the construction contractor and the property owners about parts of the drain construction. Mr. James framed the disagreement in the following questions:

1. What was the design intent?
2. Is that design intent adequately reflected in the design specifications?
3. Does the construction meet the design intent?
4. Does the construction meet the design specifications?

Mr. James explained the Township’s goals were for a drain that works properly and a completion certificate.

Ms. Patsy Gilchrist, Clerk-Treasurer of the Township of Tehkummah (the Municipality), performed the duties of the Clerk of the Tribunal.

The Tribunal had previously issued an order making all affected landowners parties to this hearing. Ms. Gilchrist filed an Affidavit of Service proving that all parties have been served with notice of this hearing.

Statutory Context

Section 64 of the Act states:

64. Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17, s. 64; 1998, c. 18, Sched. A, s. 1 (3); 2006, c. 19, Sched. A, s. 6 (1).

The Issues

The Tribunal frames the issues before it as:

1. In the circumstances of this case, was it open to the engineer and the contractor to make changes during construction from the design approved by the Township and embodied in By-Law 2006-06?

2. If not, in the circumstances of this case, what is the appropriate remedy?

3. If additional work is required, in the circumstances of this case, who should pay for that work?

The Evidence

The Hierons Drain began in response to a March 2004 petition by Ron Hierons under section 4 of the Act. Mr. Hierons wanted to enclose the open drainage ditch across his land and improve the drain outlet into Blue Jay Creek.

In accordance with the Act the Township appointed Colin G. Trivers, a professional engineer, as the drainage engineer to prepare a drainage report. Mr. Trivers had previously prepared drainage reports in his career. The Tribunal marked the September 12, 2005 report as Exhibit 2.

Mr. Trivers designed the drain as a 755 metre grassed waterway over solid plastic drainpipe with three ditch inlet catch basins and two outlets into Blue Jay Creek. The Hierons Drain has three parts named Drain “A”, “B” and “C”.

On May 2nd, 2006 the Township passed By-Law 2006-06 that adopted the drainage report and approved construction of the drainage works according to the report.

The Township issued a construction tender. Tait Brothers put in the successful tender bid and received the construction contract. Tait Brothers built the drain during the summer of 2006.

Mr. Hierons testified the drain worked very well. Mr. David Jaggard, the neighbour immediately upstream from Mr. Hierons testified that after an unusual rainstorm he experienced flooding or ponding on his property. He investigated and learned that changes during construction of the drain departed from the approved design. He believes those changes resulted in the flooding or ponding on his property. Therein lies the crux of the dispute before the Tribunal.

All parties agreed that during construction certain parts of the drain design were changed. Clearly some changes were agreed on by the engineer and contractor. It is less clear there was agreement about other changes. The changes included: substituting the size of a manhole; changing the covers on the manhole; creating a berm next to the manhole; and, moving a field or low-level crossing next to the berm.

The evidence of all parties was consistent about an unusual rainstorm event that happened on December 11-12, 2006. Although the Tribunal did not hear any meteorological evidence, the anecdotal evidence satisfied the Tribunal that the rainfall was unprecedented for the area at that time of year.

That rainstorm resulted in water ponding upstream from the manhole (ditch inlet) on Drain “A” onto Mr. Jaggard’s property. The existing open ditch across Mr. Jaggard’s property could not hold the water and areas of the Jaggard farm were temporarily flooded. It is accurate to suggest that if the rainstorm hadn’t occurred, the changes made during construction would never have been an issue.

The engineer and the contractor both believed the changes described could be made to the approved design during construction. However, the Act does not give the engineer any authority to make changes to an approved design. The Township’s By-law is the legal approval of the design and the authority for building the drain. That By-law does not include any discretion to the engineer to approve changes to the design. The tender bid put in by Tait Brothers became the construction contract on acceptance by the Township. There is nothing in that contract that allows the contractor, or the engineer for that matter, to change the approved design.

Section 58(4) of the Act does grant the municipality the ability to come before the Tribunal to seek correction of an error in an engineer’s report. However, that avenue is only available after the by-law is passed and before any assessments have been levied. That avenue was not pursued for this drain.

The engineer’s evidence is that the ditch inlet construction of Drain “A” is not the issue. Rather the issue, he says, is the grading associated with the berm next to the ditch inlet and the field crossing. Together those structures cause damming that results in water backing up and ponding on the Jaggard property. The engineer also testified the design plans do not show a top elevation for the manhole (ditch inlet) on Drain “A”.

The engineer testified the berm and the sloped top manhole on Drain “A” at Stn. 0+165 were not on the approved design drawings. The solution, as testified by the engineer, is:

• The berm and field crossing near Stn. 0+165 next to the ditch inlet must be graded out so it does not hold back water.

• The present sloped top manhole should be changed to a flat top as specified in the design.

The evidence was that a sloped top catchbasin was used on the Drain “B” section at Stn. 0+378 that was not specified in the design.

Mr. Jaggard also testified that he believed the catchbasin on Drain “B” was on his land rather than on the Hierons’ land. The evidence before the Tribunal on that was far from convincing and in any event the Act does not give the Tribunal jurisdiction to deal with boundary disputes.

Analysis and Findings

The Tribunal begins its analysis by remarking that both the engineer and the contractor are clearly professionals who acted in good faith with proper motivations and intentions.

Unfortunately, as the philosopher William James noted, the road to perdition is often paved with good intentions.

The Act clearly sets out a series of duties that a drainage engineer must perform when preparing a report.

That engineer’s report, which includes specifics such as design details and criteria, once approved by the municipality, becomes the “word” on that part of the municipality’s infrastructure.

The Act does not grant the drainage engineer jurisdiction or authority to unilaterally change the report once the municipality approves it. Similarly, the Act does not grant the engineer jurisdiction or authority to approve changes to design during construction. If the engineer has any such powers, they must flow from somewhere other than the Act.

The Act does not grant the contractor any jurisdiction or authority apart from a right of entry under Section 63.

In our view any jurisdiction or authority in either the engineer or the contractor over design or construction must flow from either the municipality’s by-law or the contract documents, which would include the tender documents. We note that neither By-law 2006-06 nor the contract documents grant such jurisdiction or authority.

This is a quality of construction appeal. Under section 51(1) of the Act the Tribunal has a wide discretion to make such order and direct such things to be done as:

• are authorized by the Act; or,

• it considers proper to carry out the purposes of the Act.

In this case we conclude measuring the quality of construction starts with the construction design. As is obvious from our analysis the quality of construction in this case departed from the construction design.

There is no dispute in the evidence that changes from the approved design were made during construction.

We learned and accept that one such change: swapping a 1250 mm. round manhole with a 3’ x 4’ rectangular manhole; will not result in any decreased function of the drain. Therefore as a matter of practicality, economy and the purposes of the Act, we conclude no changes are needed because of the size of the manholes and catchbasins.

However, the evidence satisfies us that other of those changes, as detailed below, have resulted in decreased function of the drain, producing unwanted effects on upstream properties. That, we conclude, is contrary to the purposes of the Act and therefore requires that we direct remedial changes.

We view these departures from the design as resulting in poor quality of construction. That occurred because of the admitted misunderstanding by the Township’s engineer and the Township’s contractor about their respective authorities.

Both Mr. Tait and Mr. Tivers candidly admitted in evidence that each have over 30 years experience, but, hadn’t been aware they couldn’t make changes from the approved design when building the drain. The Tribunal is under no illusions that, during construction, minor changes may happen to address vagaries found in the field. If not for the freak rain in December 2006, these changes would likely have remained non-issues.

It is our view that both the engineer and the contractor are servants of the Township. For that reason it is our view the Township ought to pay for any added costs arising from our directions. It would be unfair and unreasonable and not serve the purposes of the Act to saddle the landowners on the drain with the direct costs of correcting these issues.

During evidence Mr. Hierons made it clear that he would cooperate to allow the contractor access to his land to carry out any order of this Tribunal.

ORDER OF THE TRIBUNAL

Therefore, to ensure the quality of construction of the drain and to achieve the purposes of the Act, we order and direct as follows:

1. The engineer will fix grade elevations for the top of each manhole, catchbasin and field or low-level crossing in the approved design for permanent vertical control of those structures.

2. The engineer will designate a working space or corridor and access route for completing the drainage works.

3. The owners of the Hierons’ land and the Jaggard’s land will give the engineer and contractor access as needed to carry out the terms of this Order.

4. The engineer will produce and present to the Township a set of “as built” drawings that will include all elevation benchmarks.

5. The tops of the manhole on Drain “A” and the catchbasin on Drain “B” will be modified to flat tops rather than the sloped tops. If, in the engineer’s opinion, these changes cannot be carried out without hindering the function of the drain, these catchbasins will be replaced with the catchbasins as originally designed.

6. The berm and low-level field crossing built beside the manhole on Drain “A” at Stn.0+165 will be regraded so that water from the upstream lands is not dammed up.

7. The engineer will provide the Township with an amended report with corrected plan and profile drawings.

8. The Township of Tehkummah will pay the costs of completing the works directed by this Order.

Dated at Guelph, Ontario this 19th day of November, 2007.