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 Stone Road West
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:
Labelle and Banar New Residential Access Culvert over the McCain Sideroad Drain Town of Kingsville
Labelle and Banar (RE) 2010 ONAFRAAT 29
STATUTE:
Drainage Act
HEARING:
August 19, 2010
September 16, 2010
2010-29
NEUTRAL CITATION:
2010 ONAFRAAT 29
NEW RESIDENTIAL ACCESS CULVERT OVER THE MCCAIN SIDEROAD DRAIN
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 Roger Banar and Gisele Labelle of Kingsville, Ontario under Subsections 48(1) and 54(1) of the Drainage Act from the engineer’s report and from a decision of the Court of Revision regarding a New Residential Access Culvert Over the McCain Sideroad Drain in the Town of Kingsville.
Before:
Susan Whelan, Vice Chair; Enio Sullo, Member; Doug Flook, Member
Appearances:
Roger Banar and Gisele Labelle, Appellants Ruth Orton-Pert, Counsel for the Municipality Corinne Gabriele, Municipal Services Supervisor Bruce D. Crozier, Engineer John Henderson, witness for Municipality Wayne Cox, witness for Municipality Randy Knight, witness for Municipality
DECISION OF THE TRIBUNAL
This hearing was held in the Municipal Building, Town of Kingsville (the Municipality), in Kingsville, Ontario on August 19, 2010. Gisele Labelle and Roger Banar appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48(1) and 54(1) of the Drainage Act, (the Act) regarding their assessment and from the Engineer’s Report titled “New Residential Access Culvert Over the McCain Sideroad Drain” dated November 10, 2009 (the Report), prepared by Bruce D. Crozier, P.Eng. (the Engineer) of Bruce D. Crozier Engineering Inc.
Mr. Scott Brown, Deputy Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk of the Municipality filed an affidavit of service with the Tribunal as proof that all parties have been served with notice of this hearing.
BACKGROUND
Mr. Banar and Ms. Labelle (the Appellants) are the owners of a residential property at 951 Heritage Road in the Town of Kingsville, comprised of Lots 117 and 118, Reg. Plan 1384 (Roll No. 280-41650), hereinafter referred to as the property. The property is made up of two lots both originally cut off from the travelled roadway by an open channel municipal drain known as the McCain Sideroad Drain. The drain channel is located adjacent to and parallel to the road; it runs across the entire frontage of the property.
On June 29, 1995, Mr. Banar applied for and was granted an “entrance permit” from the County of Essex for the property identified as Lots 117 and118, Reg. Plan 1384. On the same date, Mr. Banar filed a request with Mr. Wayne Cox, Drainage Superintendent for the Township of Gosfield South (the Municipality prior to amalgamation with the Town of Kingsville) for a new access culvert over the McCain Sideroad Drain to serve said property. Subsequently, at the July 10th meeting of Council, Bruce D. Crozier Engineering Inc. was authorized to prepare an “Engineer’s letter” for the culvert installation.
The “Engineer’s letter” referred to by the parties as the “letter of sizing”, was prepared on September 25, 1995, by John V. Henderson, P.Eng., and reviewed by Lou Zarlenga, P.Eng., both of Bruce D. Crozier Engineering Inc. The “letter of sizing” provides essential information for the construction of the proposed culvert but only standard details and drawings are attached. The proposed location for the centre of the culvert was identified as approximately at Station 9+86 in accordance with the most current Engineer’s report for the McCain Sideroad Drain dated May 26, 1969. This location would have placed the culvert in front of the existing house on Lot 117. The “letter of sizing” recommends that the culvert installation be inspected by the Township Drainage Superintendent and that the proposed culvert would be considered a first time private bridge to be installed at the owner’s cost. Additionally, it clearly states “the information contained in this letter does not constitute an Engineer’s report under the provisions of the Drainage Act”.
The culvert described in the “letter of sizing” was installed in January 1996. However, it was installed entirely in front of Lot 118 with its south end approximately at the lot line between Lots 117 and 118. Soon after the installation, a dispute ensued between Mr. Banar and the Municipality regarding the culvert’s location. The dispute remains unresolved.
During the period between 1996 and present day, access to both Lots 117 and 118 has been through the single driveway on Lot 118. Lot 117 does not have any direct access to the road.
In 2009 the Appellants filed a request with the Municipality for a second culvert to serve Lot 117. Council for the Municipality appointed Bruce D. Crozier Engineering Inc. under Section 78 of the Drainage Act, to prepare an Engineer’s report. The Engineer subsequently submitted his Engineering report dated November 10, 2009 (the Report) which provides for the construction of a new access culvert for Lot 117, to be attached to the existing culvert built in 1996, for an estimated cost of $13,400 to be assessed entirely to the Appellants. The Report also recommends that the resulting single structure, comprising both the 1995/96 and 2009/10 culverts become part of the McCain Sideroad Drain works under the Drainage Act.
The Report was adopted by Kingsville Council on December 7, 2009 and a Court of Revision was held on January 11, 2010. The Appellants attended both the Council meeting and the Court of Revision. They claimed that the Municipality made an error when they installed the first culvert in 1996 and objected to paying again for another culvert. In response, the Court of Revision passed a resolution that the Municipality “…absorb the engineering costs of up to $2,500…given the nuisance caused to Mr. Banar over the years in trying to rectify the situation.”
The Municipality called for Tenders and awarded the work to Jeff Shepley Excavating Ltd. for $6,989.64. However, the start of construction was halted pending disposition of an appeal received from the Appellants.
The Tribunal was provided with several versions of the Notice of Appeal, that were somewhat ambiguous, inconsistent or inapplicable. A Pre-hearing Conference was held on May 11, 2010 pursuant to Rule 24 of the Tribunal’s Rules of Procedure to identify the issues under appeal and determine whether the Tribunal had jurisdiction to hear all matters under appeal. The Decision of the Pre-Hearing Conference, dated June 9, 2010, ruled the issues for appeal qualified under Section 48(1) and 54(1) as detailed below and that the Tribunal had jurisdiction over all matters under appeal.
ISSUES UNDER APPEAL
The issues under appeal were determined by the Pre-hearing Conference to be as follows:
Section 48(1): Whether the Engineer’s report should be modified as follows:
- relocation of hydro pole guy wire to be included as part of the works;
- driveway to be extended approximately 20 ft beyond the top of the culvert to match existing driveway; and,
- reference to the culvert being for Lots 117 and 118 should be corrected to Lot 117 only.
Section 54(1): Whether the assessment for the entire cost of the drainage works should be to the Town of Kingsville.
EVIDENCE
Engineer’s Overview of Report
The Engineer provided an overview of the Report prior to the introduction of evidence by the Appellants. He stated that he was instructed by the Municipality to incorporate the existing access culvert into the report for the new culvert so that both would become part of the McCain Sideroad Drain. All future maintenance would then be shared between the Appellants and the upstream property owners.
On October 8, 2009, a number of landowners attended the site meeting but the Engineer stated that no one raised any concerns with respect to the construction of a culvert on the Appellants’ property. Several ratepayers did attend to complain about past flooding in the area. The Engineer advised them to contact the drainage superintendent which they subsequently did, and their concerns would form part of a separate drainage report. The Engineer further testified that the culvert was sized to have a capacity comparable with the existing culverts along that section of the drain. Accordingly, he does not expect the new culvert to affect the flooding potential in the area.
The Engineer stated that he inspected the existing culvert and determined that although 15 years in age, it was in good condition; therefore the municipality could assume it as part of the drain. The Report provides for the installation of a 9.8 m (32 ft) culvert across the McCain Sideroad Drain in front of Lot 117. The new culvert will be attached to the existing culvert that was installed in 1996, eliminating the need for one head wall. The combined culvert length will provide for separate driveway entrances to Lot 117 and Lot 118, and it will be centred approximately at the lot line between Lot 117 and Lot 118. The entire structure will be incorporated as part of the McCain Sideroad Drain.
The Engineer explained that the entire estimated cost of $13,400 was assessed to the Appellants as a first time installation for access to Lot 117 and that the existing culvert will become a secondary access until such time as the lots have separate assessment roll numbers. He further advised that future maintenance of the culvert structure will be performed by the Municipality under the Drainage Act and assessed 50% to the Appellants’ property and 50% to upstream landowners within the McCain Sideroad watershed.
He advised that the Report included specifications for the type and size of pipe and drawings for the location of the culvert’s installation. He also stated that at the Court of Revision on January 11, 2010, the Municipality agreed to pay $2,500 dollars towards the Engineering costs as reflected in the revised report.
The Engineer also explained that although the “letter of sizing” proposed that the midpoint of the 1995/96 culvert be at approximately Station 9+86, it was actually installed in front of Lot 118 with its midpoint being at 9+50 and the south end at 9+68 (the lot line between Lot 117 and Lot 118).
Section 48(1) Appeal – Hydro Pole Guy Wire
Mr. Banar testified that there is a hydro pole located at the lot line between Lot 117 and Lot 118. The hydro pole is equipped with a guy wire that he believes will conflict with the new access and driveway for Lot 117. He noted that the Report makes no mention of the guy wire and requested that the Engineer’s Report be amended to include the relocation of the guy wire.
In reply evidence, the Engineer pointed out that the hydro pole is shown on the drawings attached to his Report but conceded that he had indeed missed the guy wire prior to completing the Report. He stated that if the guy wire will interfere with the new driveway entrance, it can be modified or moved and any adjustment or relocation could be arranged directly with the hydro utility.
In response to questions from the Tribunal, the Engineer stated that the hydro pole will be located between the two driveways. He said that while this is not an ideal situation it is a common occurrence and will not directly interfere with the operation of the two driveways. With respect to the relocation of the guy wire, he said that regardless of whether the relocation is included in the report or not, it would be done at Mr. Banar’s cost. In response to further questions from the Tribunal the Engineer acknowledged that the assessment of the relocation of the guy wire could be directed to the utility company.
A common document brief submitted to the Tribunal by the Municipality and the Appellants includes a copy of a “Customer Service Contract” issued to Mr. Banar on February 4, 2010 by Hydro One Networks for the relocation of the subject guy wire in the amount of $280.08. The service contract was not mentioned in the testimony at the hearing.
Section 48(1) Appeal – Driveway Extension
Mr. Banar testified that the work described in the Report should include the extension of the driveway approximately 20 feet beyond the back side of the culvert to match the existing driveway in front of Lot 118. He maintained that the driveway extension was included as part of the work during the installation of the 1996 culvert and he expected that it would also be part of the work included in the current culvert installation.
In response evidence, the Engineer stated that the limits of the driveway entrance over the top of the proposed culvert are identified on the drawings attached to his Report. The work includes a gravel driveway surface approximately 20 ft wide over top of the culvert extending from the edge of the road pavement to the back side limit of the backfill for the culvert. He said this is standard practice in culvert installations done under the Act and that he was not given any instructions to extend the driveway any further.
Section 48(1) Appeal – Reference to Lots 117 and 118
Mr. Banar noted that the Engineer’s Report references the new culvert as being constructed to serve Lot 117 and Lot 118. Mr. Banar believes that the reference for the new culvert should only be Lot 117.
The Engineer agreed that the new culvert will serve only Lot 117. However, he clarified that the reference in the Report to both Lot 117 and Lot 118 is to describe the parcel of land owned by the Appellants. Although there are two lots, there is currently only one roll number assigned, hence only one parcel of land according to the Act.
Section 54(1) – Assessment
Mr. Banar testified that he believes that both the Engineer and the Municipality made errors in the 1995/96 “letter of sizing” and installation of the original culvert.. He further testified that he paid for the initial installation and that he should not have to pay again for another culvert. His property is made up of Lots 117 and 118 and that each lot can be sold separately. He maintains that he had requested that the 1995/96 culvert be installed with its mid point at the line between Lots 117 and 118 so that it could be utilized as a shared crossing for both lots. It was his understanding that the culvert would create an individual 20 ft driveway top width on each lot. As evidence of this fact, he pointed to the Entrance Permit that he obtained from the County of Essex which describes the location of the new entrance as being on Lots 117-118. Mr. Banar stated that upon being granted the Entrance Permit, he contacted Mr. Wayne Cox at the Municipality and did everything he was asked to do. He stated that when he received the Engineer’s “letter of sizing”, he did not understand the information, and he relied on Mr. Cox to manage the project. He said that he followed the Municipality’s instructions, including paying the Engineer’s firm directly for the “letter of sizing” as well as Glen Knight, the Contractor who installed the culvert.
Mr. Banar testified that he could not be present for the entire day when the Contractor came to the site to install the culvert because of a medical issue. He said that when he returned later in the day, he discovered that the culvert had not been installed at the mid point between the two lots as he was expecting. Instead, the culvert had been placed entirely in front of Lot 118. He said that he complained to Mr. Cox but nothing was done about it.
Mr. Banar further testified that he did not understand why Lots 117 and 118 were being viewed as one property by the Municipality and the Engineer. He stated that separate lots were created by Registered Plan 1384 and he produced a letter from his lawyer affirming that the lots can be sold individually.
For the past fifteen years Mr. Banar maintains he has tried to resolve the issue of the culvert being installed at the wrong location. He said that the Municipality had admitted to their error but failed to take any corrective action. He acknowledged that the Municipality agreed to pay $2,500 of the current engineering costs, but he said that he expected the Municipality to pay the entire amount, considering the inconvenience he has endured. He believes that if the culvert had been installed at the right location in the first place, he would not require a second culvert.
During cross-examination, Ms. Orton-Pert asked Mr. Banar how he intended to deal with the hydro pole if the 1995/96 culvert had been installed straddling the lot line between Lots 117 and 118. Mr. Banar clarified that the culvert should have been installed so that he had a 20 ft lane on either side of the lot line with the pole in the middle. Mr. Banar said that the “letter of sizing” prepared by the Engineering firm specified the wrong location for the culvert. He also had no recollection of meeting with the Engineer, Mr. Henderson or anyone else at the site prior to the installation. It was his testimony that the Municipality was responsible for the process after he obtained and delivered the Entrance Permit.
Mr. John Henderson testified that he has been employed by the Essex Region Conservation Authority since 1999 and worked for Bruce D. Crozier Engineering Inc. from 1990 to 1999. He confirmed his signature on the “letter of sizing” dated September 25, 1995 but did not have any specific recollection of the letter. He testified that he had been involved in the preparation of a number of letters of sizing around the time of the letter for the Appellant’s property. He said that some municipalities would request letters of sizing in lieu of a full report under the Act to reduce costs. In preparing such letters, he would typically attend at the site once and meet with the property owner to determine what was required. However, he did not have any specific recollection of having met with or had any discussions with Mr. Banar in this case. He said that under the letter of sizing process, he typically was not required to coordinate or inspect the installation of the culvert as that was the responsibility of the Municipality.
Mr. Henderson identified the hand written notes dated September 25, 1995, as notes that he would have recorded during his attendance at the Banar culvert site. Among other things, the notes indicate that the culvert was to be installed with its north end at Station 9+68 and south end at Station 10+04.
Mr. Glen Knight testified that he is the current owner of Glen Knight Septic Tank Service which was contracted to install the 1995/96 culvert. At the time of the culvert installation in January 1996, he was an equipment operator for the same company which was then owned by his father. He recalled a hydro pole being present as a well as a “black pipe” in front of the house to the left of the hydro pole. He testified that Mr. Banar was present when they first arrived at the site to install the culvert and that Mr. Banar had said that the black pipe was a future sanitary sewer line. He also testified that Mr. Banar then left the site and did not return until late in the day. Mr. Knight stated that he had not seen the “letter of sizing” prepared by Mr. Henderson and did not recall having any conversations with anyone regarding where the culvert was to be installed.
Mr. Wayne Cox testified that he has been employed by the County of Essex since 2002. He stated that at the time of the installation of the 1995/96 culvert, he was the Drainage Superintendent for the Township of Gosfield South. He testified that he was familiar with the “letter of sizing” prepared by Mr. Henderson and that he assisted Mr. Henderson when he attended at the site to do his survey in the fall of 1995. Mr. Cox also testified that he recalled meeting with Mr. Banar when he was at the site with Mr. Henderson. He said he assumes that he had a discussion with Mr. Banar regarding the location of the proposed culvert but he did not have a specific recollection.
Mr. Cox also attended at the site on the morning of the culvert installation in January 1996 to verify the work being done. He said he arrived just as the culvert was set to be installed and noted that it was not at the location specified in the Engineer’s “letter of sizing”. However, he said that the location selected for the installation seemed logical since there were several large trees and a hydro pole at the location specified in the “letter of sizing”. Mr. Cox said he checked the culvert for proper elevation, alignment and size but it didn’t matter to him where the culvert was being installed as long as it was on the Banar property.
In response to questions from Mr. Banar, Mr. Cox said that it was the responsibility of the landowner to ensure that the culvert was installed at the proper location.
Responding to questions from the Tribunal, Mr. Cox testified that the decision to instruct the Engineer to prepare a “letter of sizing” as opposed to a drainage report under the Act was made by Council. He said that the reason was to save money for the landowner.
Ms. Corinne Gabriele testified that she has been the Municipal Services Supervisor and the Drainage Superintendent for the Town of Kingsville since 1998. Prior to that, she worked for the Town of Amherstburg for 5 years and Bruce D. Crozier Engineering Inc. for 10 years. She said she became familiar with the Banar culvert situation shortly after starting with the Municipality. Although she researched the municipal records, there was very limited documentation available. She did find the “letter of sizing” signed by Mr. Henderson and determined that the 1995/96 culvert was not installed at the location specified. She said that the Municipality offered to relocate the culvert to the location specified in the “letter of sizing” but Mr. Banar did not agree to the offer. At the same time, Ms. Gabriele discovered that despite there being only one roll number, the parcel of land owned by the Appellants was actually comprised of two separate lots. She said that Mr. Banar wanted to move a house to Lot 118 and that he needed a separate access, which led to his formal request for a second culvert in August 2009.
Ms. Gabriele testified that during the consideration process for the Report, she prepared a background report to Council detailing the circumstances surrounding the 1995/96 culvert, including installation at the wrong location. It was Ms. Gabriele’s report that led to the decision of the Court of Revision for the Municipality to pay $2,500 of the project toward the cost of the Engineer’s Report.
Ms. Gabriele further testified that there was a new sanitary sewer system about to be constructed at the time of the 1996 culvert installation, for the area where the Appellants lived. She referred to a “Service Connection Location” sheet which was introduced by Ms. Orton-Pert. Ms. Gabriele testified that the sheet represented the location where Mr. Banar wanted his sanitary sewer connection to be located. She noted that the location shown on the sheet would conflict with the location of the 1995/96 culvert. She said that the proposed location of the connection coincided with the approximate location of the “black pipe” described by Mr. Knight. She speculated that the 1995/96 culvert was moved to avoid a conflict with the proposed sanitary sewer connection.
Responding to questions from the Tribunal, Mr. Banar testified that the black pipe that Mr. Knight saw in 1996 and referred to by Ms. Gabriele, was actually a storm drainage pipe conveying rainwater from the area surrounding the house to the ditch at the road. He said it had nothing to do with the sanitary sewer connection.
During questions from the Tribunal, Ms. Gabriele conceded that she did not know what the black pipe was. She also confirmed that since the sanitary sewer connection was deeper than the drain, it would not conflict with the culvert installation. However, she said that installing the culvert in advance of the sewer connection would create an inconvenience in that the sanitary sewer connection would have to cross under the culvert.
Also, in responding to questions from the Tribunal, she said that she had never denied that the 1995/96 culvert had been installed in the wrong location. While she had earlier stated that the Municipality had made an error, she had since learned that the Contractor, Glen Knight Septic Tank Service, had been contracted directly by Mr. Banar. As such, she said that Mr. Banar would have been responsible for installing the culvert at the location he wanted.
Responding to Ms. Gabriele’s testimony, Mr. Banar said that he had no recollection of hiring Glen Knight to install the culvert. However, he did agree that he paid Glen Knight $4,000 for the culvert installation and about $300 to the Engineer as directed by the Municipality.
The Engineer was recalled to answer further questions from the Panel. He testified that he first saw the “letter of sizing” three months ago. He said “letters of sizing” were utilized 15 years ago but not today and that their purpose was to speed up the process and save the landowner money. He said the landowner didn’t have to pay for a full Engineer’s report and the letter of sizing did not need to go through Council consideration, the Court of Revision and other processes required by the Act. He said the Municipality would hire the Engineer and the access culvert would be considered a private bridge that would typically be incorporated as part of the drainage works sometime in the future when a drainage report was done for the entire drain.
With respect to the specified location of the culvert in the 1995 “letter of sizing”, the Engineer said that he assumes that the landowner told his office where the culvert was to be placed. He speculated that Mr. Banar had the culvert moved from the specified location to avoid a conflict with the pending installation of the sanitary connection.
The Engineer testified that if the culvert was to be installed with its mid point straddling Lots 117 and 118 with 20 ft lanes on each side, the culvert would have to be much longer than the 36 ft specified in the “letter of sizing”. In order to comply with what Mr. Banar claims he wanted, it would have required a culvert at least 60 ft long allowing for the sloped end walls on either side. He also stated that he was not aware until Mr. Banar testified at this hearing that he wanted the culvert to straddle the lot lines with two 20 ft driveways.
The Engineer challenged Mr. Banar’s reliance on the Entrance Permit issued by the County. Despite the fact that the form refers to both Lots 117 and118, it does not specify where the culvert is to be installed or how long it is to be. He said the reference to “Lot 117-118” is simply a description of the Appellants’ land.
He also testified that the Municipality has a policy that all landowners pay for access culverts on municipal drains that are a first time installation. He stated that this is a policy he both agrees with and supports. Despite the fact that the Appellants’ lots were assessed as part of the 1969 Engineer’s report for the McCain Sideroad Drain, he insisted that the culvert is still a first time installation and should be assessed to the landowner. However he again confirmed that the future maintenance and repair of the extended culvert would be assessed 50% to the adjacent landowner and 50% to the upstream landowners.
Analysis and Findings
Section 48(1) Appeal – Hydro Pole Guy Wire
The Tribunal finds that the adjustment or relocation of the hydro pole guy wire should have been included in the Engineer’s Report. Accordingly, the power utility would have been party to the Drainage Act process, including being sent an invitation to the Engineer’s site meeting, the Council meeting to consider the Report, the Court of Revision, as well as the Tribunal Hearing. Pursuant to Section 26 of the Act, the cost of adjusting or relocating the guy pole should have been assessed to the power utility. The utility could then exercise its right to carry out the work with its own forces, failing which, the Municipality could complete the work pursuant to Section 69 of the Act. In all cases, the power utility would have a right to appeal the works or their assessment.
The Tribunal considered setting aside the current Engineer’s Report and ordering that a new report be prepared that includes the adjustment or relocation of the guy wire with the cost of same assessed to the power utility. However, the Tribunal notes that the delay and costs of such an order would far exceed the $280.08 that the utility has requested to carry out the work. Therefore, the Tribunal will not issue an order to set aside the Report.
Section 48(1) Appeal – Driveway Extension
The Tribunal accepts the Engineer’s evidence that the driveway surface included in municipal drain culvert installations typically extends from the road pavement to the backside limit of the culvert backfill.
Section 48(1) Appeal – Reference to Lots 117 and 118
The Tribunal accepts the Engineer’s reason for referencing Lots 117 and 118 in his report. The reference is simply a descriptor used for the land owned by the Appellants.
Section 54(1) – Assessment
The Tribunal is troubled by the Municipality’s decision in 1995 to request an “Engineer’s letter” or “letter of sizing” for the installation of a culvert on a municipal drain in lieu of appointing an Engineer to prepare a report under the Act. The Tribunal finds that the Municipality’s action to circumvent the process required by the Act played a significant role in the ensuing and ongoing dispute between the Municipality and the Appellants. The Municipality’s fiduciary responsibilities with respect to municipal drains are clearly described in the Act. Had the original culvert installation proceeded under the Act, the duties and responsibilities of the parties involved would have been clearly defined. Unfortunately, by moving forward under a “letter of sizing” the process became riddled with problems.
Despite that Mr. Henderson cautioned in the “letter of sizing” that the letter did not “…constitute an Engineer’s Report under the provisions of the Drainage Act…”, the Tribunal finds that he was fully aware that the Municipality and Mr. Banar intended to use the letter to install a new culvert on the McCain Sideroad Drain. Mr. Henderson, as the Engineer, was or should have been aware of the requirements of the Act with respect to municipal drains, including Section 18, which stipulates that culverts, among other things, are to be deemed part of the drainage works.
The evidence is inconclusive with respect to establishing what instructions, if any, Mr. Banar provided to the Engineer, the Municipality or the Contractor about the location of the installation of the 1995/96 culvert. The Tribunal does not accept Mr. Banar’s assertion that the reference to Lots 117-118 on the Entrance Permit issued by the County of Essex meant that the culvert was to be installed straddling the lot line between the two lots. Also, Mr. Henderson did not provide any evidence that he had communicated with Mr. Banar at any time during the preparation of the “letter of sizing”. And, although Mr. Cox testified that he met with Mr. Banar when he attended at the site with Mr. Henderson, he could not recall the specifics of what was discussed with Mr. Banar. The Engineer believes that someone told his office where the culvert was to be placed, but could not produce any evidence to substantiate this assumption. Additionally, Mr. Knight could not recall any discussions with Mr. Banar about the location.
The evidence suggests that each of the parties relied on someone else to organize and co-ordinate the work. The Engineer stated that once the “letter of sizing” was sent to the Municipality, their job was done and they were not required to inspect construction work. While it is clear that the Municipality hired the Engineer, they then asked Mr. Banar to pay the bill. Neither the Municipality nor Mr. Banar admits to hiring the Contractor, Glen Knight, to install the culvert, although Mr. Banar appears to have paid the bill. Mr. Cox attended at the site on the day of the culvert installation, but testified that it didn’t matter to him where the culvert was being installed. Mr. Knight could not recall why the culvert was not installed at the location specified in the “letter of sizing”. Mr. Banar said he relied on the Municipality and the Engineer to get the job done.
The Tribunal finds as fact that the 1995/96 culvert was not installed at Station 9+86 in front of Lot 117 as specified in Mr. Henderson’s “letter of sizing”. The Tribunal also finds as fact that the culvert was actually installed at Station 9+50 in front of Lot 118 with its south end at Station 9+68, being the lot line between Lots 117 and 118. Mr. Banar testified that neither the specified location nor the installed location coincides with what he wanted, which was a culvert straddling the lot line between Lots 117 and 118 with two 20 ft driveways, one to each lot.
The Tribunal accepts the Engineer’s evidence that if the 1995/96 culvert was to be installed straddling the lot line between Lots 117 and 118 with two 20 ft. driveways as Mr. Banar testified he wanted, the culvert would have to be at least 60 ft long instead of the 36 ft. specified in the “letter of sizing”.
The Tribunal notes that once the 2010 culvert is attached to the existing 1995/96 culvert, it will result in a culvert with an overall length of 68 ft. with its mid point straddling the lot line between Lots 117 and 118 with two 20 ft driveways, one to each lot, which is exactly what Mr. Banar testified he wanted in 1995/96.
The Tribunal has made a determination of the cost of the 1995/96 culvert had the work been undertaken under an Engineer’s report in accordance with the Drainage Act and in accordance with what Mr. Banar testified that he wanted. The evidence is that Glen Knight installed the 36 ft long culvert in 1996 for $4,000. Accordingly, the Tribunal estimates that the cost of a 68 ft long culvert would have been approximately $7,500 plus Engineering fees of approximately $1,500 for a total of $9,000. After deducting the $4,000 and $300 that Mr. Banar already paid to the Contractor and the Engineer respectively, Mr. Banar would have paid an additional $4,700 to install the culvert he testified that he wanted. By applying the Bank of Canada Consumer Price Index (CPI) from 1995 to 2010, the amount in 2010 dollars is approximately $6,250.
The Engineer’s cost estimate for the current culvert is $13,400. After deducting $6,250 per the above analysis, the remaining extra cost is $7,150. The Tribunal finds that both the Municipality (and all its agents, including the Engineer) and to a lesser extent, the Appellants, bear some responsibility for the extra cost.
Order of the Tribunal
The Tribunal orders as follows:
- Section 48(1) Appeals:
i) The relocation of the hydro pole guy wire shall be coordinated by the Municipality and the costs shall be paid from the Contingency Allowance provided for in the Engineer’s Report and shall be included in the final cost of the work.
ii) The request to include the extension of the driveway beyond the limits stipulated in the Engineer’s Report is denied.
iii) The request to amend the reference in the Engineer’s Report from “Lots 117 and 118” to “Lot 117” only, is denied.
- Section 54(1) Appeal:
The assessment for the cost of the work described in the Engineer’s Report which is estimated to be $13,400 shall be $7,900 to Roger Banar and Gisele Labelle, Lot 117 and 118, Registered Plan 1384 and $5,500 to the Town of Kingsville (this amount includes the $2,500 already agreed to at the Court of Revision). If the final cost of the work is different than the estimate, the assessments to each of the parties shall be proportioned accordingly.
Dated at Amherstburg, Ontario this 16th day of September, 2010