Bibeau-Pilon Drain (Re), 2007 ONAFRAAT 28

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

Bibeau-Pilon Drain

Township of Brethour

Bibeau-Pilon Drain (RE) 2007 ONAFRAAT 28

Drainage Act

October 29, 2007

DATE OF DECISION:

December 6, 2007

2007-28

2007 ONAFRAAT 28

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 Bruce Mills, Belle Vallee, Ontario under Section 48 (1) (b) of the Drainage Act from the engineer’s report and an appeal by J. D. Wilkinson, Belle Vallee Ontario under Section 54 of the Drainage Act from the decision of the Court of Revision on the Bibeau-Pilon Drain in the Township of Brethour.

Before:

Marthanne Robson, Vice Chair;
Ron Gelderland, Member;
Denis Perrault, Member

Appearances:

Bruce Mills, appellant
J. D. (Jack) Wilkinson, appellant
Zephirin Menard, assessed landowner
Robert Kettlehut, assessed landowner
Kenn Smart, engineer for the municipality
Don Lacko, witness for the municipality

DECISION OF THE TRIBUNAL

This appeal was heard in the Brethour Community Hall, 51476 Brethour Rd, RR 1 Belle Vallee, Ontario on Monday, October 29, 2007.

Bruce Mills, Belle Vallee, Ontario appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 (1) (b) of the Drainage Act (the Act) from the engineer’s report (the Report) and J. D. Wilkinson, Belle Vallee, Ontario appealed to the Tribunal under Section 54 of the Act from the decision of the Court of Revision on the Bibeau-Pilon Drain in the Township of Brethour.

Ms. Pam Bennewies, Clerk-Treasurer of the Township of Brethour, 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 have been served with notice of this hearing.

Statutory Context

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

Appeal to Tribunal

(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,

(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;

(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).

Section 54(1) of the Act states:

(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).

The Background

Existing Drainage

The Bibeau-Pilon Drain was constructed in accordance with the report of V.R.O. Praskey, P. Eng. (H. Sutcliffe Ltd) dated February 16, 1982. At that time, the report provided for the construction of a Main Drain, Branch A and Branch B open channels. The Main Drain commenced at Brethour Road including new culverts on the road and ran westerly along the south side of the Townline Road, then northerly crossing the Townline Road and then northerly across Lot 6, Concessions 1 and 2 and terminated at the half Concession Line in Concession 3. A new culvert installation was provided below Brethour Road, below the Townline Road and below Road Concession 2-3 (Sowinski Road) at the top end. As well, two short branch drains – A and B - were constructed.

A report submitted on the Mills Drain in 2000 by K.A. Smart, P. Eng. (K. Smart Associates Ltd.) dated October 31, 2000 altered the watershed of the Bibeau-Pilon Drain wherein it was recognized that lands formerly assessed in the Bibeau-Pilon Drain actually drain east towards Brethour Road and a new drain (Mills Drain 2000) was constructed to serve this watershed easterly intoWright Creek.

It is believed that scattered repair and maintenance had been undertaken on the Bibeau-Pilon Drain since its construction.

A watershed that exists to the west of the Bibeau-Pilon Drain had been previously served by an 800mm+ culvert crossing the Townline Road and by a small open channel that progresses southerly across the property of Zephirin Menard (1-297, 1-304) towards Wright Creek. There are lands north of Townline Rd. that were to be served by this culvert and channel. It is known that the culvert is in poor condition and does not function and as a result waters now overflow in the north road ditch of the Townline Road to the Bibeau-Pilon Drain.

The Report of the Engineer

The Report was prepared pursuant to Section 4 of the Act. The Report had been prepared pursuant to an original petition submitted to Council of the Township of Brethour by Bruce Mills on behalf of lands in Lot 6, Concession 1 in the township. The petition was augmented following an on-site meeting in accordance with Section 9 by the addition of the J. Wilkinson property (N pt Lot 6, Concession 2)

The purpose of the Report was to provide for improvement to the main channel of the Bibeau-Pilon Drain in Lot 6, Concession 1 and the south part of Lot 6, Concession 2, and downstream of the Townline Road along the south side of Townline Road east to Brethour Road and for a small incorporation and improvement of the ditch on the south side of the road downstream of Brethour Road in the north part of Lot 7, Concession 6, Township of Casey. The work would also provide for beaver dam removal on Branch A of the existing Bibeau-Pilon Drain in Lot 6, Concession 2, and would provide for the construction of a new Branch Drain known as Branch C.

The total estimated cost of the project is $73,450 ($55,700 Main Drain, $650 Branch A and $17,100 Branch C). The affected watershed is 679.4 hectares (1,679 acres) The total length of open drain work is 2,412m (2,017 Main Drain and 395m Branch C), plus 58m of new channel being incorporated on the Main Drain and removal of 2 beaver dams on Branch A.

The Issues

The issues before the Tribunal are:

How to address Mr. Mills’ request for compensation from the municipality related to damages to his tractor from the failure of a culvert on the Main Drain
How to address the proposed construction of “Branch C” as requested by the petitioner, Mr. Mills, and as recommended in the Engineer’s Report
Should the Tribunal order the engineer to revise the assessment schedule in his Report to reduce assessments to the properties owned by Mr. Wilkinson and to reallocate any resulting changes?
How to treat the assessment of Mr. Menard as it relates to the proposed “Branch C” of the Bibeau-Pilon drain.

Preliminary Matters

It was brought to the attention of the Tribunal Panel that Ms. Pam Bennewies is not only the Clerk-Treasurer of the Township of Brethour and was serving as the Clerk of the Tribunal for the purposes of the Hearing, but, she is also an assessed landowner in the watershed. It was noted that Ms. Bennewies takes no part in the decision of the Panel. No parties in attendance objected to Ms. Bennewies’ attendance or participation in the Hearing.

Mr. Wilkinson advised the Panel that he could only stay at the Hearing until 1:00 pm, due to another obligation. The Panel took note of Mr. Wilkinson’s time constraints.

The Evidence

In his opening remarks, Mr. Mills stated that:

There is frequent flooding on his property adjacent to the Bibeau-Pilon drain
Water is flowing into his property from another watershed
The Report joins another watershed to the Bibeau-Pilon Drain watershed
Mr. Rene Cote, Road Superintendent for the Township of Casey, and Mr. Allan Goddard, Road Superintendent for the Township of Brethour have stated that no work has been done on the Townline Road.
A couple of farmers have dug a ditch that now flows into the Bibeau-Pilon ditch.
The ditch needs to be cleaned or the water returned to its natural courses; this would stop a lot of the flooding.
The slope of the ditch needed to be returned to its proper elevation.

In his opening remarks, Mr. Wilkinson stated that:

He is near the top of the drain.
When the on-site meeting was called, the engineer mentioned that tile on his (Mr. Wilkinson’s) property was under water.
The assessment to him and his wife was excessive.
No maintenance has been done on the drain, but, needs to be done. There has been natural “wear and tear” on the drain.
The assessment on his property should be assessed to other landowners. Assessment should be done on a per hectare basis.
He had asked for his assessment of $4000 benefit on the main drain to be reduced to $2,000 originally. However, he will now leave it up to the Tribunal to determine the appropriate assessment.

In opening remarks, Mr. Smart stated that:

He would try to address the item that Mr. Mills referred to, i.e. Branch C.
He would address Mr. Wilkinson’s concerns by explaining the method of determining the assessment and maintenance schedules in the Report.

Following questioning by the Panel, Mr. Smart was accepted by the Panel as an Expert Witness.

Kenn Smart

Mr. Smart outlined the background and recommendations contained in the Report.

In his submission, Mr. Smart testified:

There had been four requests from Mr. Mills
Subsequent to the public meetings, there had been a request from Mr. Wilkinson for improvements to the drain
Concerns had been expressed regarding beaver dams on the drain.
Survey and design work had determined that: the water Mr. Mills referred to was running into the Bibeau-Pilon drain; two beaver dams on Branch A needed to be removed; the Townline Rd culvert needed reconstruction; the original drain stopped at Brethour Rd.; a clean-out of the ditch across Mr. Kettlehut’s property was needed in order to remove ox-bows; it was recommended that with regard to Branch C, the ditch on the north side of Townline Rd. be deepened and widened – however, the municipality decided to leave the ditch as it was and where it was.
That the culvert leading into Mr. Menard’s property was damaged, that water sits there and overflows onto Mr. Mills’ property. There is no recommendation in the report to improve the ditch across Mr. Menard’s property; nothing will change on the Menard property, however, he is to be assessed for benefits related to not having the water flow across his property (cutoff assessment).

Mr. Smart provided a general overview of the assessment methods he used in the report and offered to provide specifics for individual landowners. He referenced pages 21 – 32 of the Report (Exhibit 2). He noted that the gross assessments in Casey Township were: $2000 for Mr. Menard; $1045 for Mr. Wilkinson and $1500 for Mr. Kettlehut. In Brethour Township, the gross assessments were: $22,920 for Mr. Mills’ properties; and, $6543 for Mr. Wilkinson.

Schedule C on Page 24 of the Report (Exhibit 2) identified the net costs to the landowners, including; $666 for Mr. Menard; $299 in Casey Twp and $1881 in Brethour Twp for Mr. Wilkinson; and $4890 for Mr. Mills.

The Calculation of Assessments for Future Maintenance is reported in Appendix B, pages 29 – 32 of Exhibit 2 (the Engineer’s Report).

Bruce Mills

Mr. Mills requested that the Tribunal order Brethour Township to pay the cost of replacement parts for his tractor for the damages done to his tractor from the failed culvert.

When asked by the Panel, Mr. Mills was not able to identify the authority for the Tribunal to pay damages, nor was he able to provide evidence or an actual bill for the parts. He indicated that the township had documents and that the total cost was about $330.

Mr. Mills raised concerns regarding the safety of a hydro pole located at the intersection of Brethour Rd and Townline Rd. The Panel noted that the hydro pole was near an overflow pipe that was not addressed in the Report. When asked by the Chair, there were no objections from the parties to including the hydro pole as part of Mr. Mills’s request.

Mr. Mills reiterated that he would like the water in the ditch on the north side of Townline Rd to flow to the west, rather than the east. When asked by the Panel if he wanted Branch C at this time, Mr. Mills indicated “No”.

Mr. Smart confirmed that according to the Report, Branch C was to go ½ mile west of Brethour Rd and that when Mr. Mills had signed the petition, his request was consistent with what was in the Report.

Mr. Mills called Don Lacko as a witness. Mr. Mills asked Mr. Lacko to confirm the slope of the land along the Townline Rd. Mr. Lacko indicated that along the centre line of Townline Rd. the elevation rises by a couple of inches for a few hundred metres from the Main Drain, then the centre line slopes towards the west.

Jack Wilkinson

Mr. Wilkinson testified that:

He felt there was too much benefit assessed to him and his wife; $4000 was too much.
He felt that the work proposed should have been routine maintenance
He was willing to pay something to address the matter of the submerged tile drains
Only ¼ of a mile of the drain needed to be cleaned in order to provide outlet
The tiles on his property were installed about 15 years ago, with some installed more recently.

In response to questioning, Mr. Wilkinson stated:

That his experience with drainage tribunals suggested that Tribunals can change the recommendations contained within the engineer’s report.
Whatever decision regarding the drain is implemented will have an impact on future maintenance and that parties should work to get this right. He asked that the Tribunal see that attribution was done properly.
That with respect to Branch A, he had concerns regarding the lack of on-going maintenance and the feeding of the beaver and the resultant beaver dams.

Summations

In his summation, Kenn Smart noted:

With respect to the request by Mr. Mills to be compensated for repairs to his tractor, Mr. Mills should have served notice to the municipality under Section 79 of the Act. At the site meeting, there was no discussion of the condition of the culvert where the damage to the tractor occurred.
With respect to Branch C, the municipality indicated that it did not want to deal with the culvert adjacent to Mr. Menard’s property. Replacing the culvert and related costs would have cost approximately $50,000 rather than the $17,100 as indicated in the Schedule of Assessments.
The hydro pole is located near the municipal culvert that is not part of the Bibeau-Pilon drain. Some rip rap would take care of any potential dangers to the pole.
That with respect to Mr. Wilkinson’s assessment, he felt this was not out of line. He indicated that Mr. Wilkinson had been assessed $1000 for work further down the drain, because the lower drain level downstream would reduce the water level at Mr. Wilkinson’s tile drains, enhance their functioning, and provide sufficient outlet.
That Mr. Lacko’s survey along Townline Rd had been submitted as Exhibit 6. The survey showed the slope along the road.

In response to a question from the Panel, regarding the property of Mr. Menard, Mr. Smart stated:

That if the ditch that ran through Mr. Menard’s property were improved and the landowners who benefited were assessed at $15/metre, the total assessment would have been $6000 at least. The value of having the cutoff, i.e. not reopening the failed culvert on Townline Rd, should be at least half of that, i.e. $3000. The total of the Menard/Boucher assessment was $3000 – a fair assessment when compared to the others.
That Mr. Menard is receiving a cutoff benefit – the water does not run through his property – and this is why he is being assessed. Water that could have flowed to Mr. Menard currently flows toward Mr. Mills’ property. The future benefits to Mr. Menard are likely the greatest, i.e. lower costs related to excavating the existing ditch.

Mr. Smart stated that he believed that the assessments contained within the Report were correct and fair, given the work that was proposed. He questioned whether Mr. Wilkinson understood the difference between having maintenance work done by the Drainage Superintendent versus done under the Act.

Mr. Smart advised that he always looked at what is paid by all parties and that he takes the value of the provincial drainage grant – where applicable – into account. He also considers the assessment splits/allowances between landowners.

Mr. Smart also felt that the future maintenance schedule is fair. In future, if the drain is fairly maintained across all properties, the schedule is valid.

Bruce Mills

Mr. Mills stated that it was not right that he would have to pick up the majority of the total cost of $17,100 for Branch C. He felt that it was the fault of the township for letting the flooding happen. Mr. Mills submitted additional documents from the Township Council from 2002, 2003 and 2005 regarding drainage maintenance matters and related assessments.

In response to a question from the Panel, Mr. Mills confirmed that the assessments related to Branch C were an issue for him.

The Findings

With respect to the damage to Mr. Mills’ tractor, the Tribunal found:

No invoice for replacement parts for the damaged tractor was shown to the Tribunal, nor was a specific date given regarding when the damage occurred.
The corrugated steel pipe (CSP) that had collapsed was part of the municipal drain. The municipality had assumed the road, the road had gravel on it, and the road had been maintained; never closed. Despite this, the township had described the road as non-maintained.
The petition to the Township was signed on March 13, 2006; the tractor accident occurred before July 13, 2006; the on-site meeting was held on June 8, 2006; and, a second on-site meeting was held on August 17, 2006.
No notice of damage was made to the municipality as required under Section 79 of the Act. Nor was such a notice submitted to the Tribunal as evidence.

With respect to Branch C:

On April 26, 2007, Mr. Mills appealed to the Tribunal under section 48(1)(b). (i.e. drainage works should be modified on grounds to be stated…)
Following the May 9, 2007 decision of the Court of Revision, Mr. Mills disputed his assessments and felt he was being assessed too much. He felt that the township should pay for the CSP. He also wanted Branch C cancelled at that point.
At a meeting on January 30, 2007 to consider the Report, Mr. Mills indicated that he wanted the CSP at Mr. Menard’s property replaced. The Township indicated it was not prepared to do so. The Engineer stated that to send the report back and to make the changes would cost an additional $1200 - $1300 and, therefore, the township council needed to decide whether to leave the report as it was or to amend it.
Township Council did not ask for changes, the report was adopted as requested, with the sitting of the Court of Revision to follow as soon as possible afterwards.
Mr. Menard appealed his assessment on Branch C at the Court of Revision. He did not request or support Branch C.
The Engineer did as he was requested by petition, but, the objectives of the Report changed over time. Council should have sent the Report back for revision and then recirculated it.
On the day of the hearing, the Tribunal heard that Mr. Mills did not want Branch C, nor did Mr. Menard. The road authorities for the township failed to do their own work on their own property.

With respect to the appeal of the decision of the Court of Revision by Mr. Wilkinson, the Tribunal found:

Mr. Wilkinson’s assessment, as explained by the engineer, was fair and just. The Court of Revision upheld the engineer’s report.
No persuasive evidence was submitted by Mr. Wilkinson to justify his request for a reduction in his assessment.

The matter raised by Bruce Mills with regard to reinforcing the footings of the hydro pole is outside the jurisdiction of the Tribunal and is not addressed.

ORDER OF THE TRIBUNAL

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

The request by Mr. Mills for compensation in the amount of approximately $330 from the Township of Brethour, for damages to his tractor, is denied.
Branch C is cancelled. Proposed works in the Report related to Branch C are to be deleted from the Report and assessments in the Report are to be revised. Accordingly, the assessment to Mr. Menard for Branch C is reduced to zero. Any costs related to this cancellation are to be borne equally by the Township of Brethour and the Township of Casey.
The appeal by Mr. Wilkinson to reduce assessments on his properties - as calculated in the Report - is denied.
The non administrative costs of the Township in respect to this appeal shall form part of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

It appeared to the Tribunal that the main concern of the landowners, in particular Mr. Wilkinson and Mr. Mills, was the lack of timely maintenance to the drain. Portions of the drain were not regularly inspected or maintained. This neglect appears to have contributed to the deterioration of the drain.

The Tribunal recommends that all affected landowners and the townships work together to develop a coordinated and on-going maintenance plan for all future drainage works in the watershed.

Dated at Borden, Ontario this 6th day of December, 2007.