Van Every Gardens Inc. v. City of Hamilton, 2008 ONAFRAAT 4

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

APPEAL: Hauser Municipal Drain City of Hamilton Hauser Municipal Drain (RE) 2008 ONAFRAAT 04

STATUTE: Drainage Act HEARING: November 20, 2007 DATE OF DECISION: January 24, 2008 2008-04 NEUTRAL CITATION: 2008 ONAFRAAT 04

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 Van Every Gardens Inc., in Dundas, Ontario under Subsections 48(1)(a) and 48(1)(b) of the Drainage Act from the engineer’s report on the Hauser Municipal Drain in the City of Hamilton.

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

Appearances: Karen Turkstra, President of Van Every Gardens Inc., Appellant Carl Turkstra, witness for appellant Peter Turkstra, witness for appellant Bryon Wiebe, P. Eng., on behalf of the City of Hamilton, respondent John Morgante, on behalf of the City of Hamilton, respondent Bob Paul, on behalf of the City of Hamilton, respondent Bruce Hauser, assessed landowner Adi Irani, P. Eng., on behalf of Bruce Hauser, assessed landowner Betty Jean Price, assessed landowner

DECISION OF THE TRIBUNAL

Overview

The Hauser Municipal Drain is the subject of this appeal heard in Stoney Creek, Ontario, on November 20, 2007. Van Every Gardens Inc. (“Van Every”) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) under Subsections 48(1)(a)¹ and (b) and 54(1)² of the Drainage Act (the “Act”).

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 and 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 section 48(1)(a) appeal concerns the costs/benefits of the drainage works proposed in the Engineering Report. The section 48(1)(b) appeal concerns the design of the proposed drainage works. The section 54 appeal concerns the assessments or the cost sharing proposed in the Engineering Report.

The City of Hamilton received a petition for drainage from a group of landowners from a residential subdivision. Hamilton appointed Bryon Wiebe (“Wiebe”), a professional engineer with Wiebe Engineering Group Inc. as the drainage engineer (the “Engineer”) under the Act.

Van Every appealed to the Tribunal from Wiebe’s Engineering Report dated January 31, 2007.

Mr. Salter Hayden, Deputy Clerk of the City of Hamilton, performed the duties of the Clerk of the Tribunal.

Before the Hearing, the Tribunal issued an order making all landowners assessed or compensated in the Engineering Report parties to the Hearing. An Affidavit of Service was filed with the Tribunal as proof that all parties have been served with notice of this Hearing.

Background

Plan #62M-883 is a residential subdivision in the City of Hamilton (“Hamilton”), developed by Karen Turkstra (“Turkstra”) through Van Every. For several years there has been a persistent drainage issue in the southeastern portion of the subdivision, near where it adjoins the land of Bruce Hauser (“Hauser”).

To relieve the drainage problem, Turkstra convinced several of the homeowners in the subdivision to become petitioners under the Act, after which, Hauser also became a petitioner.

To address this drainage issue, Hamilton appointed Wiebe to be the drainage engineer under the petition.

None of the residential homeowners from Plan #62M-883 who signed the petition appeared at the Hearing.

Preliminary Matters

At the beginning of the Hearing the Tribunal asked Turkstra to clarify:

1. The nature of the appeals before the Tribunal; and,
2. Her role, or the role of Van Every, in the appeals before the Tribunal.

The Tribunal raised the first issue because it was unclear from the materials filed what was under appeal. Hamilton’s engineer raised the same concern.

Turkstra told the Tribunal the appeal was about the construction and design of the drainage works, under Section 48 of the Act, and of the assessments made by Wiebe, under Section 54 of the Act.

Although there was some suggestion the assessment appeals were started late, after reviewing the appeal notices and the dates they were received by the Clerk, the Tribunal is satisfied the appeals were started in time. If, however, we were wrong, we would exercise our discretion under the Act to extend the time to appeal. We would do so as there was no evidence, nor argument that any party will suffer prejudice if an extension was to be allowed. Therefore, if it had been necessary, we would have decided this is a proper case to extend the time to perfect the assessment appeals.

The Tribunal raised the second issue because, as conceded by Turkstra, neither Van Every nor Turkstra owned any land in the drainage area.

Section 48 of the Act allows that an “owner of land” may appeal to the Tribunal. The definition section of the Act expands the meaning of the word “owner” to include a “guardian of property” and a guardian, executor, administrator or trustee “in whom land is vested”. The word vested is not a defined word under the Act. The Canadian Law Dictionary defines vested, when used in this context, to mean a conveyance or transfer by operation of law. Here, we rule out the land in issue is vested in either Van Every or Turkstra since there is no evidence or argument to suggest it was.

The question then becomes whether Turkstra or Van Every are a “guardian of property”. Turkstra suggested that she had rallied the homeowners to sign the original drainage petition, on the understanding that Van Every would accept all financial responsibility for any assessments made against the homeowners. She described that she had the authority to speak for the homeowners. She told the Tribunal that she had written communications between Van Every and the homeowners that appointed her the guardian for the landowners’ properties.

The Tribunal directed that Turkstra file those written confirmations with the Tribunal by November 23, and that all parties file any written submissions by November 30, on the Tribunal’s jurisdiction to hear the Van Every appeals.

Turkstra filed the following:

• a copy of a September 12, 2005, letter from her to all the residents of the subdivision, explaining why a drainage petition was the solution; and
• A series of letters and e-mails all dated after November 21, 2007, confirming Turkstra’s and Van Every’s authorization to represent the homeowners in the subdivision, and confirming their acting as an “agent or guardian”.

Hamilton filed submissions that Turkstra and Van Every meet the Act’s expanded definition of “owner”, because they have been assigned with the care of the affected owners’ properties.

Wiebe filed submissions that Turkstra and Van Every are “owners”, because Hamilton has not yet assumed all the road and roadside ditches in the subdivision.

Hauser filed submissions that the Tribunal should decide the jurisdiction issue itself.

The Tribunal is not satisfied that Turkstra and Van Every are, in the circumstances of this case, “guardians of property” under the Act’s expanded definition of “owner”. The Canadian Oxford dictionary defines a guardian as a person having legal custody of another person or her property. The evidence filed by Turkstra and Van Every does not support a finding that the homeowners gave Turkstra and Van Every legal custody of their property.

However, the Tribunal believes the appeals are nonetheless valid, and that it has jurisdiction based on the evidence and submissions. The alternate theory supporting the validity of the appeals is that of agency. The materials filed by Turkstra and Van Every show the homeowners considered Turkstra and Van Every as their agents. That is consistent with both the September 12, 2005, correspondence from Van Every, as well as the confirmations dated after November 21, 2007.

If, for example, a lawyer represented a petitioner, that lawyer could begin an appeal to the Tribunal for the client. There is nothing in the Act that precludes an agent like Turkstra beginning an appeal to the Tribunal for a property owner. Therefore, the Tribunal decides that it has jurisdiction to consider these appeals started by Turkstra and Van Every, for the homeowners in the subdivision.

The Substantive Issue on Appeal

The issue before the Tribunal was: does the Report properly address the need of the Van Every subdivision for a legal drainage outlet?

The Engineer’s Evidence

The Engineering Report was Exhibit 4 in the appeal. One of the primary objectives of the Engineering Report, as noted on page III of Exhibit 4, was “to secure a legal outlet for both Van Every and Bayview Estates”.

One of the Engineer’s duties under section 9(2) of the Act is to fix the area needing drainage. Performing that duty typically requires the Engineer to define a watershed area. Based on the watershed area the Engineer then calculates the water from the watershed area that will be drained through any proposed drainage works.

The Engineering Report in section 1.4 identifies the drainage area as “in the order of 100 hectares” and references the Key Plan in Appendix B of Exhibit 4. That drainage area is much larger than just the Van Every Estates subdivision and Mr. Hauser’s neighbouring proposed Bayview Estates subdivision.

The Engineer was not aware of the status of the drain for the Sundusk subdivision located upstream of station 0+000, the starting point for the proposed drainage works. The Engineer testified that downstream of the proposed works, beyond station 0+540 was a natural watercourse.

As noted in section 2.1 of the Engineering Report, and as confirmed in the Petition for Drainage, there was an issue about water not draining properly between Lots and 8 and 9 in Van Every Estates (62M-883).

However, the Engineering Report did not incorporate the drainage of the water collecting between Lots 8 and 9 into the drainage works. The Engineer testified he did not view that as part of his mandate but rather viewed it as an issue for the lot-grading plan of the municipality. By the end of the Hearing the Engineer agreed the drainage between Lots 8 and 9 needs to be addressed in the drainage works.

The Engineering Report detailed that the Engineer determined allowances of $28,000 for Turkstra offset against costs assessed against Turkstra of $73,000. However, under the Act the benefits and costs of the drain can only be assessed against parcels of land. It was agreed by all that Turkstra (Van Every) no longer owned any land in the drainage area.

The Evidence of the Remaining Parties

It became abundantly clear to the Tribunal during the Hearing that all parties agreed the water issue between Lots 8 and 9 should be addressed as part of the drainage works.

Carl Turkstra, an engineer, as well as a representative of Van Every, testified about a possible solution. Adi Irani, an engineer representing Hauser, also testified about a possible solution.

The Tribunal appreciates the assistance intended by the solutions offered by these parties, however, this drain will eventually be a municipal drain. Therefore a better approach is to allow the Engineer appointed by the Municipality to issue a revised Engineering Report to address those issues revealed by the appeal hearing.

Analysis and Findings

The Tribunal findings are as follows:

1. The Engineering Report did not adequately provide recommendations for a solution to the issue of drainage for the Van Every subdivision. In particular, it did not address the drainage issue between Lots 8 and 9. That relief was sought in the petition for drainage works filed by the agent of the owners of land within the Van Every subdivision.

2. The Engineer appointed under the Act is to provide recommendations in a revised Engineering Report that will include a proposed resolution for the issue of drainage between Lots 8 and 9 in the Van Every subdivision.

3. The Engineering Report does not clearly define the watershed that will drain into the proposed drainage works. In the revised Engineering Report the Engineer should clarify the specific watershed area.

4. The Tribunal understood the Engineer’s evidence was that the Sundusk Estates subdivision located upstream of station 0+000 drained, at least in part, into Van Every Gardens. Given that, the Tribunal is troubled that no outlet assessment was made against the property owners in Sundusk Estates. Therefore, in the revised Engineering Report the Engineer should either provide for outlet assessment against the upstream landowners or include a detailed rationale why not.

5. The Plan and Profile in Appendix B of the Engineering Report lacks the following benchmarks that should be included in a revised Engineering Report to regulate flow control:

a) A control elevation and size for the existing 1300 mm culvert found at station 0+000;

b) A control elevation and size for the existing 1300 mm culvert found at station 0+540;

6. Assessments of costs, either benefit, outlet or injuring liability, can only be made against landowners in the drainage area. The assessments have the same status as a tax lien under the Municipal Act. Therefore the assessments made against Turkstra must be deleted from the Engineering Report. The assessments must be made against registered landowners. The Tribunal appreciates the Engineer was simply trying to give effect to the contractual arrangements between Van Every, the landowners and the municipality. Van Every testified it undertook to pay all the costs assessed against the landowners within Van Every Gardens. While the Engineer adopted a practical approach to the assessments, it did not conform to the Act. The Tribunal is not trying to rewrite any contracts between those parties, as it has no such jurisdiction. However, the Tribunal must ensure that the municipality can recover the cost of this proposed municipal drain from assessed landowners. Therefore if the contractual arrangements between Van Every, the landowners and the municipality fall through, the municipality will still have its statutory ability to raise the cost of the drainage works.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence and the submissions, the Tribunal orders that the Engineering Report be returned to the Engineer, for revision as follows:

1. Define the watershed.

2. Add control elevations to the Plan and Profile for the culverts at the start and end of the proposed works.

3. That the report be extended 30 m upstream of station 0+000 and extended 30 m downstream of station 0+540 to include and size both culverts for the purpose of flow control

4. Recommend the solution for the drainage between Lots 8 and 9.

5. Address outlet assessment for the upstream landowners.

6. Apportion the assessments for the proposed works against the registered landowners.

Dated at Guelph, Ontario, this 24th day of January 2008.

(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.

Footnotes

1. 148.(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. 254. (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.