John Szintai and Carina Bruggeman v. Municipality of Thames Centre, 2007 ONAFRAAT 30

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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:

Moore Drain

Municipality of Thames Centre

Moore Drain (RE) 2007 ONAFRAAT 30

STATUTE:

Drainage Act

HEARING:

December 3, 2007

DATE OF DECISION:

December 28, 2007

2007-30

NEUTRAL CITATION:

2007 ONAFRAAT 30

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 John Szintai and Carina Bruggeman, in London, Ontario, under Section 48(1) of the Drainage Act from the engineer’s report on the Moore Drain 2007 in the Municipality of Thames Centre.

Before:

Kirk Walstedt, Vice Chair; Doug Flook, Member; Euclid Mailloux, Member

Appearances:

Carina Bruggeman, appellant

Martin Bruggeman, witness for appellant

David A. Broad, counsel for the Municipality of Thames Centre, respondent

Michael DeVos, P. Eng., on behalf of the Municipality of Thames Centre, respondent

Jack Kennedy, Kennedy Construction

DECISION OF THE TRIBUNAL

This appeal was heard in Dorchester, Ontario, on December 3, 2007. Carina Bruggeman appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48(1) of the Drainage Act (the Act) from the engineer’s report dated May 7, 2007 (the Report), by Spriet Associates Consulting Engineers & Architects, on the Moore Drain 2007, in the Municipality of Thames Centre, and signed by M. P. DeVos, P. Eng. (the Engineer).

Ms. Margaret Lewis, Clerk of the Municipality of Thames Centre, 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

Section 48(1) of the Act states:

Appeal to Tribunal

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(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).

The Background

The Moore Drain was previously reconstructed in accordance with the report submitted by S.W. Archibald, P. Eng., dated May 31, 1957. A portion of the Moore Drain was later reconstructed in 1995 by the developer of the Evans-Kennedy subdivision. As a condition to the reconstruction that took place in 1993, the municipality required that the drainage works within the Evans-Kennedy subdivision be designed with the ability to provide storm water drainage to the property immediately to the north of the subdivision, identified by Roll Number 50-267, referred to as the Bruggeman property. The condition set forth by the municipality included the extension of storm sewers to the south limit of the Bruggeman property. At that time, the municipality and the developer of the Evans-Kennedy subdivision agreed that the developer would be compensated for the costs involved in over sizing the drainage works, from the developer of the Bruggeman property.

The Report (Exhibit 2) was prepared pursuant to a request from the owners of: the Bruggeman property, of Roll Number 50-267; and the property identified by Roll Number 50-276, owned by 1659934 Ontario Ltd., as stated in the Report. To address this request, Council for the Municipality of Thames Centre appointed Spriet Associates Consulting Engineers & Architects to prepare a report.

The purpose of the Report was to provide recommendations for addressing the requirement of proper drainage outlets to the properties identified by the above noted Roll Numbers, as petitioned by the property owners. With respect to the issue under appeal, the Report recommended as follows:

1. that the existing Evans-Kennedy storm sewer, constructed in 1993, be incorporated as part of the Moore Drain for future maintenance purposes;

2. that the newly constructed storm sewers within the Bruggeman property be incorporated as part of the Moore Municipal Drain for future maintenance purposes upon acceptance of construction; and

3. that the proposed storm sewers within the property owned by 1659934 Ontario Ltd. be incorporated as part of the Moore Municipal Drain for future maintenance purposes upon acceptance of construction.

The total estimated cost of the project is $199,500, and the affected watershed occupies an area of 9.46 hectares.

The Issues

The issues before the Tribunal are:

• Should storm sewers from the Bruggeman property be directed into the Evans-Kennedy storm sewer, as recommended in the Report?

• Is the assessment of the Bruggeman property, as recommended in the August 15, 2007, revised “Schedule ‘B’ – Assessment of Construction” appropriate in accounting for the benefits that the Bruggeman property will receive, from the proposed drainage works?

Preliminary Matters

Mr. Jack Kennedy was present at the Hearing before the Tribunal. He introduced himself as a developer of the Evans-Kennedy subdivision, and stated that his interest in the Hearing relates to the assessments recommended in the Report. With regards to Mr. Kennedy’s presence at the Hearing, Mr. David A. Broad told the Tribunal that testimony from Mr. Kennedy may be of interest during the Hearing.

Mr. Martin Bruggeman stated that Mr. Kennedy is not a landowner within the area affected by the proposed drainage works.

The Tribunal Chair informed all individuals in attendance that there are issues on this matter that relate to Mr. Kennedy. The Chair added that the Tribunal has established Rules of Procedure for issues such as these, and that the Tribunal is relatively flexible with regards to the testimony that is introduced.

Ms. Carina Bruggeman informed the Tribunal that she provided the municipality with copies of the documents she wished to reference during her presentation of evidence, fourteen (14) days before the Hearing date. She further informed the Tribunal that the municipality did not forward copies of these documents, along with copies of the municipality’s submissions, until a date later than that indicated on the Notice of Hearing issued by the Tribunal. Ms. Bruggeman expressed concern over this discrepancy, and stated that the municipality’s late submission of all documents may have compromised her case. She requested that the Tribunal take this matter into consideration.

The Evidence

M. P. DeVos

Mr. DeVos provided the Tribunal with a brief overview of the background and recommendations contained in the Report. He informed the Tribunal that the Report was prepared in accordance with Sections 4 and 78 of the Act. He added that there was a petition for the construction of new storm sewers to serve the properties owned by the Bruggemans and 1659934 Ontario Ltd. Mr. DeVos referred to Exhibit 3, an aerial photograph of the watershed, and identified the Bruggeman property as the northerly property in the photograph. He stated that Wright Street had been extended by the developer, following discussions with the municipality. Mr. DeVos added that in prior drainage works, the need for over-sizing of the storm sewer was identified in order for the Moore Drain to handle flows from the Bruggeman property. He further added that the municipality and the developer of the Evans-Kennedy subdivision discussed the issue of future compensation to the developer for their over-sizing of the drainage works within the subdivision.

Mr. DeVos informed the Tribunal that Spriet Associates was appointed to the project shortly after the 1993 drainage works took place. Mr. DeVos added that since the drainage works to accommodate the Bruggeman property are being constructed after the construction of drainage works on the Evans-Kennedy subdivision, their task was to also provide a cost estimate of the amount that Mr. Kennedy should be compensated for the over-sizing of the drain in his subdivision.

Mr. DeVos referred to “Schedule A”, on page 5 in Exhibit 2, and informed the Tribunal that the total allowances for this drainage works are in the amount of $191,980, and the total estimated costs of the works are of $199,500. He told the Tribunal that one of the purposes of the Report is to address the costs assigned to all property owners, and to do so in relation to the benefits being derived. Mr. DeVos further stated that the costs of the allowances and construction fees were divided amongst the three developments that will be served by the drainage works.

In response to a question from Mr. Broad, Mr. DeVos informed the Tribunal that the costs associated with the construction of the 1993 drainage works were paid by the developer of the Evans-Kennedy subdivision.

Carina Bruggeman

Ms. Bruggeman expressed her appreciation to the municipality and Mr. Kennedy for their consideration in the over-sizing of the drain on the Evans-Kennedy subdivision to accommodate for the drainage of the Bruggeman and 1659934 Ontario Ltd. Properties.

Ms. Bruggeman stated that she is not taking issue with the assessment to the Bruggeman property. She did, however, state that the Report does not provide breakdowns for the costs of the drainage works taking place. She further stated that the amount of money being collected by the municipality is greater than the amount of money being directed toward costs and allowances associated with the works, particularly with regards to the reimbursements to Mr. Kennedy.

In response to these submissions, the Tribunal Chair informed Ms. Bruggeman that the Tribunal does not have the jurisdiction to deal with any arrangement that the developer of the Evans-Kennedy subdivision, Mr. Kennedy, has with the municipality.

Ms. Bruggeman informed the Tribunal that the subdivision on the Bruggeman property was in progress at the same time as the one on the Evans-Kennedy property. She directed the Tribunal’s attention to Exhibit 5, a letter to the Ministry of Municipal Affairs, which states that the plan for the subdivision was premature due to servicing requirements. In reference to Exhibit 5, Ms. Bruggeman stated that the municipality did not bring the issue of drainage works to her attention, even though drainage works were to be taking place within the Evans-Kennedy subdivision, at that time. She further stated that when proceeding with plans for a different subdivision, she was informed of the 1993 drainage works.

Ms. Bruggeman then made reference to Exhibit 6, a letter from Lafontaine, Cowie Burrato and Associates Limited, dated December 21, 1995, and stated that the importance of this letter is to address the issue of costs related to the drainage works. She stated that, on page two of this letter, there is only reference to the assessment of costs, and not of profit, for the proposed drainage works.

In reference to Exhibit 7, a draft letter from Mr. Jeffrey Paul P.Eng. at Stantec Consulting Ltd., Ms. Bruggeman directed the Tribunal’s attention to page two of the fax transmission, which states as follows:

“It is our understanding that the Township does not generally reimburse developers for oversizing of services for external developments.”

Ms. Bruggeman further stated that it is the understanding of Mr. Paul that the additional costs incurred by over-sizing the drainage works were voluntarily borne by Mr. Kennedy. She referenced the fourth page of the fax transmission, and stated that the additional costs incurred are in the amount of $17,500, as estimated by Mr. Paul. Ms. Bruggeman added that the importance of this letter is that Mr. Kennedy voluntarily chose to repair the drain to save himself time.

Ms. Bruggeman made reference to Tab 15, in Exhibit 8, which states that there is no obligation for the municipality to collect any money for the reimbursement of Mr. Kennedy. She further stated that the municipality informed her that it has the obligation to do so.

In reference to Tab 37, in Exhibit 8, a letter from Mr. Broad, Ms. Bruggeman directed the Tribunal’s attention to the mention of costs in the amount of $34,660, and stated that the inclusion of G.S.T. is a significant issue. She further stated that this letter shows that the Municipality deviated from the Act.

In response to this submission, Mr. Broad referred to page three of the letter, and stated that the sequence of events did not take place as required by the Act, but that the municipality did not infringe on their requirements under the Act.

Mr. Broad continued, in response to Ms. Bruggemans’s submissions, and directed the attention of the Tribunal and of Ms. Bruggeman to Tab 20, in Exhibit 8, the draft plan approval, which refers to the conditions of draft plan approval. He referenced paragraph ten, which states as follows:

“That a municipal drain shall be petitioned under the Drainage Act by the Developer to receive storm flows from the site subject to an Engineer’s report whereby ownership, right of access and maintenance responsibilities concerning said facilities is duly identified and provided for in perpetuity, to the satisfaction of the Upper Thames River Conservation Authority and the Municipality. The costs of the Engineer’s Report shall be the responsibility of the Owner.”

In response to Mr. Broad’s submission, Ms. Bruggeman stated that she did file a petition to address lots 16 and 17, and that she signed a petition to incorporate her drains into the municipal drain, as constructed by Mr. Evans.

Mr. Broad, in response to Ms. Bruggeman’s statement, directed the attention of the Tribunal and Ms. Bruggeman to Tab 21, in Exhibit 8, the Petition for Drainage Works by Owners. Ms. Bruggeman then stated that the drainage works requested are with respect to the drainage of lots 16 and 17.

M. P. DeVos

In response to the Tribunal’s request for an overview of the costs involved in this project, Mr. DeVos stated that they reviewed the accumulation of costs related to the construction of the drainage works on the Evans-Kennedy subdivision, and found that the costs were somewhat higher than anticipated. He informed the Tribunal that the best way to properly establish the costs of construction for the prior drainage works, would be to refer to the relevant costs from the appropriate year. He stated that they referred to prices that they acquired at that time, regarding costs per metre for the length and type of drains being installed, and reviewed the differences between costs from that time, and costs of materials at present date. He further stated that the costs were not proportional when taking inflation into account, which lead to their decision to use a ratio of one 1993 dollar to one 2007 dollar.

Mr. DeVos informed the Tribunal that once the actual costs of all construction works were calculated, including the costs of maintenance, and G.S.T., the costs involved were in the amount of $191,980, which was determined to be the allowance for the existing drain. He added that the costs of $191,980, when adding the costs involved in the preparation of the report, and other related costs, brought the total estimate to $199,500, which was is the total of the costs assessed to the three developers. Mr. DeVos further added that, when this process began, Mr. Kennedy was a landowner in the relevant area. This is no longer the case and the municipality is now responsible for the roads.

In response to a question from Ms. Bruggeman regarding the breakdown of costs, Mr. DeVos directed the Tribunal’s attention to Tab 31, in Exhibit 8, which identifies the incorporation of the 7% rate of G.S.T., and 4.4% rate of interest accrued over the course of nine months. Mr. DeVos stated that these items were accumulated in a ledger, and when added to a total construction cost of $174,040, the total costs for this project arrives at $199,500. Mr. DeVos added that a breakdown of costs, on a preliminary basis, was provided at an earlier date, and referred to page 3 of Tab 31, in Exhibit 8, which provides a general breakdown.

Mr. DeVos further stated that there were two different ways in which assessments were tested. The first method used was based on the actual costs, and the second method used was based on the benefits each property would receive in considering the respective flows that each would generate.

Mr. DeVos told the Tribunal that, at the Court of Revision, Mr. and Ms. Bruggeman expressed their concerns about the costs involved, stating that the costs were not fair. He referenced Tab 35, in Exhibit 8, to direct the attention of the Tribunal and of Mr. and Ms. Bruggeman to the breakdown of costs. Mr. DeVos further told the Tribunal that Mr. and Ms. Bruggeman’s concern was with the second method used to test the assessments, the flow method. He stated that, following the Court of Revision, the assessment to Mr. and Ms. Bruggeman was reduced by $5,060, from $34,660 to $29,600, as indicated in the revised Schedule ‘B’ in the Report, dated August 15, 2007.

In referring to a letter from W. J. Barlett in Tab 13, in Exhibit 8, Mr. DeVos told the Tribunal that another engineer conducted a similar exercise to determine assessments to the Bruggeman property for the over-sizing and extension costs, and also provided an estimated cost of approximately $35,000. Mr. DeVos added that this information was established in the year 2000, prior to the report to address the drainage of the Bruggeman property.

In response to a question from Mr. Broad, Mr. DeVos told the Tribunal that the Bruggemans were aware of the letter from W. J. Bartlett dated July 24, 2000, and told the Tribunal that they did not find this number to be correct.

With regards to Ms. Bruggeman’s reference to Exhibit 7, a letter from Mr. Paul from Stantec Consulting, Mr. DeVos stated that this letter is of a very preliminary nature, and that Stantec does not have experience in preparing drainage reports under the Act. He further stated that the letter from Mr. Paul acknowledges that assessments can often vary dramatically between engineers.

In response to further questioning from Mr. Broad, Mr. DeVos told the Tribunal that, in his opinion, the assessment of $29,600 to the Bruggemans is a fair assessment. He added that the costs incurred by the Bruggemans if they were to secure their own outlet, would be higher than their initial assessment in the Report.

In response to a question from Ms. Bruggeman, with regards to the disclosure of the costs involved in the over-sizing and extension on the Evans-Kennedy subdivision, Mr. DeVos stated that the amounts used to calculate assessments were those provided by the contractor. Mr. Broad added to Mr. DeVos’s statement, and referenced Section 31 of the Act, in stating that an engineer is not required to base allowances on actual costs, but on the value of benefits being received.

In response to further questions from Ms. Bruggeman, Mr. DeVos stated that:

• The Report reflects that the drainage works on the Bruggeman, 1659934 Ontario Ltd., and the Evans-Kennedy properties are incorporated into the Moore Drain.

• His task as the engineer was to make assessments of the drainage works within the Moore Drain area, and stated that the Bruggeman drainage works are not going to be included in the other properties’ assessments. He added that he only made assessments to the part of the drain that will be used by all developers.

• The letter from Mr. Jeffrey Paul, of Stantec Consulting, was only an estimate.

• None of the homeowners were assessed because the drainage works were assessed to the developers, as a result of the properties being owned by the developers at the time of assessment.

• Mr. Kennedy has already been compensated for the over-sizing and extension of the previous drainage works within the Evans-Kennedy subdivision.

Summations

Carina Bruggeman

Ms. Bruggeman stated that there are three obvious areas that flow into the final drain, and that when the petition was signed, they acknowledged that all properties would drain into the Evans-Kennedy subdivision. She further stated that the difficulty now, is whether the amount of $17,500 or $29,000 should’ve been distributed between herself, and 1659934 Ontario Ltd. Ms. Bruggeman added that the problem she has is that the costs of over-sizing, which Mr. Kennedy incurred to the benefit of the two other developers, now adds up to $75,000 in assessments to the two other developers, in a project whose total cost is $199,500.

Ms. Bruggeman told the Tribunal that if $35,000 is the real cost associated with the over-sizing of the drain on the Evans-Kennedy subdivision, to accommodate the two other developers, then that amount should be spread between herself and 1659934 Ontario Ltd, and if $75,000 in assessments is being collected, then Mr. Kennedy will be reimbursed for more than the actual costs of the over-sizing.

Martin Bruggeman

Mr. Bruggeman told the Tribunal that in all of his years in this business, he has never seen someone getting money back for drainage works that took place in the past. He further stated that the municipality is deviating from the Drainage Act.

David Broad

Mr. Broad told the Tribunal the issue relates to Section 31 of the Act. He continued, in stating that Mr. Kennedy has constructed the drain based on the requirements of the municipality, with regards to the over-sizing and extension to accommodate the other two developers.

He further stated that Section 31 of the Act permits for the costs involved in the construction of an existing drain, which was not constructed on the requisition of a petition, to be incorporated in the assessments of future drainage works, based on the benefits to be received.

Mr. Broad stated that, through the processes involved in the drainage works, the assessment was reduced to approximately $29,000. He added that, as previously stated by Mr. DeVos, the order in which this took place may not have been in the appropriate order, but the Report has allowed other lands to develop and utilize this drainage works for the development of those properties.

Mr. Broad suggested that the Tribunal exercise deference, in that no evidence was submitted from the appellants to propose a different method of assessment. He added that the dollar figure referenced by the appellants is the amount of $17,500, as estimated in the draft letter from Mr. Paul, and that Stantec Consultants acknowledged that the estimate was done without the production of a report. He further stated that Mr. DeVos has used a tested methodology and checked it with other methods, and that the issue of money being collected does not relieve the appellants from their requirement to pay the amount assessed to them.

The Findings

The Tribunal finds that the existing drain, constructed by Mr. Kennedy in 1993, was explicitly required by the municipality to be over sized and extended for the benefit and future development of the Bruggeman lands and other neighbouring properties.

With respect to the calculation of assessments in the Report, the Tribunal finds that:

1. The Engineer employed sound engineering principles in the calculation of assessments to the properties affected.

2. The appellant provided no expert evidence to refute the methods used by the engineer in preparing the Schedule of Assessments.

3. Mr. DeVos is an experienced engineer whose calculations were not refuted.

4. The Court of Revision fairly dealt with the appellant’s appeal by reducing their assessment by $5,060.

5. The Municipality of Thames Centre did not deviate from Section 31 of the Drainage Act in assessing the properties in question, as well as in the resulting compensation to the previous owner of the Evans-Kennedy subdivision.

6. The letter from Stantec, dated September 20, 1999, that the appellant referenced as being a sound estimate in compensating Mr. Kennedy, was not accompanied by an engineer’s report and, in fact, was a very preliminary estimate that had not been calculated in the same detailed manner as Mr. DeVos subsequently carried out.

ORDER OF THE TRIBUNAL

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

1. The appeal of Carina Bruggeman and John Szintai, under Subsection 48(1) of the Drainage Act, is denied.

2. The non-administrative costs of the municipality 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 Drainage Act.