Campbell et al. v. City of Ottawa, 2012 ONAFRAAT 18

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West / 1, chemin Stone Ouest Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/english/tribunal / www.omafra.gov.on.ca/french/tribunal

APPEAL: David Adams Municipal Drain, Rideau-Goulbourn Ward, City of Ottawa

David Adams Municipal Drain (RE) 2012 ONAFRAAT 18

STATUTE: Drainage Act

HEARING: April 25, 2012

DATE OF DECISION: July 19, 2012

2012-18

NEUTRAL CITATION: 2012 ONAFRAAT 18

DAVID ADAMS MUNICIPAL DRAIN Rideau-Goulbourn Ward, City of Ottawa

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Herbert and Marlene Campbell, Manotick, Ontario from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal; and by Douglas and Elaine Grinnell, Manotick, Ontario under Section 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal on the David Adams Municipal Drain in Rideau-Goulbourn Ward, City of Ottawa.

Before: Harold McNeely, Vice-Chair; Enio Sullo, Vice-Chair; Corry Martens, Member

Appearances: Herbert Campbell - appellant Douglas Grinnell, appellant Christopher Moore, counsel for appellant (Grinnell) Mark Somers, WESA- Envir-Eau, expert witness for appellant (Grinnell) Bill Graham, Weston-Graham & Associates Ltd., expert witness for appellant (Grinnell) Donald R. Good, expert witness for appellant (Grinnell) Gilbert Desjardins, assessed landowner John Henderson, assessed landowner Monica McCarthy, assessed landowner Cathy Crosby, counsel for the Municipality A. J. Robinson, Robinson Consultants Inc. - Engineer who prepared the Report

DECISION OF THE TRIBUNAL

This hearing was held in the City Hall for the City of Ottawa, (the Municipality) in Ottawa, Ontario on April 23, 24 and 25, 2012. Herbert and Marlene Campbell appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal. Douglas and Elaine Grinnell appealed to the Tribunal under Sections 48(1) and 54(1) from the Engineer’s Report on the David Adams Municipal Drain dated April 18, 2011 (the Report), prepared by Robinson Consultants Inc. (the Engineer), and signed by A. J. Robinson, P.Eng.; and from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal.

Rosemary Theriault performed the duties of the Clerk of the Tribunal on April 23 and 24; and Carole Legault performed the duties of the Clerk of the Tribunal on April 25, 2012.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the notice of hearing dated January 16, 2012.

At start of the hearing, assessed landowners John Henderson, Monica McCarthy and Gilbert Desjardins asked to provide evidence at the hearing. In addition to his appeal, Mr. Campbell requested to give evidence on the Grinnell appeal. Mr. Henderson also requested to give evidence on the Grinnell appeal. Ms. Crosby elected to call Mr. Campbell, Mr. Desjardins and Ms. McCarthy as witnesses for the Municipality.

Background

The Engineer’s Report was initiated by a landowner petition filed under Section 4 of the Drainage Act. The works proposed by the Report are located in Lots 6 through 14, Concession 1, Rideau-Goulbourn Ward (former Township of North Gower), City of Ottawa. The Report provides for an open channel drain with an overall length of approximately 3,750 metres to serve a watershed of approximately 300 hectares. The proposed construction includes fish habitat compensation measures and protection of a heron nesting site. The total estimated cost of the works is $504,000.

Relief Sought by the Appellants

1. The Report should be set aside because the benefits to be derived from the drainage works are not commensurate with estimated costs;
2. The drainage works should be modified to provide for a less costly solution;
3. The compensation and allowances provided by the Engineer are inadequate; and,
4. The assessments should be reduced.

Evidence

Mr. A.J. Robinson - Engineer

Mr. Robinson testified that the David Adams Municipal Drain was initiated by a petition under Section 4 of the Drainage Act (the Petition), signed by 11 of the 25 landowners within the drainage basin, representing 72.63% of the total land area. He said that his firm was appointed as the Drainage Engineer by Council of the City of Ottawa on March 9, 2005, following which he convened a site meeting on July 5, 2005. Mr. Robinson stated that at the site meeting, he determined that the primary concern and cause for the petition by the landowners was an unauthorized man-made dam constructed on Lot 7, Concession 1, on lands currently owned by the Appellant, Mr. Grinnell. Consequently, he conducted research into how and when the dam came into existence.

Mr. Robinson gave evidence that the dam on the Grinnell property was constructed across an existing natural watercourse. Using aerial photographs which he entered into evidence, he observed that the dam was not present in 1983 or 1984; however, there was evidence of the dam in a preliminary phase by 1985 and indications of the presence of a significant structure by 1987. Through the remaining years to 2008, he said that there was evidence of expansion of the open water area upstream of the dam, suggesting that the structure was raised over this period of time. He said the evidence included additional aerial photographs; information from the landowners as well as a “Notice of Violation” dated May 5, 1997 from the Rideau Valley Conservation Authority (RVCA). Referring to additional aerial photographs, Mr. Robinson pointed out that by 2008 there was expansion of the open water areas extending further upstream from the dam and that there were dead trees now used as heron nesting sites. He observed that the dam has significantly impacted the drainage from upstream lands because standing water remains in the watercourse year-round upstream of the dam as far as Carsonby Road (approximately 1,300 metres upstream of the dam).

Mr. Robinson gave evidence that he commenced work on the Report following the onsite meeting of July 5, 2005. He determined that the most efficient method of providing the required level of drainage was through the removal of the man-made dam on the Grinnell property. Through preliminary consultations with the various environmental agencies, including the RVCA, the Ontario Ministry of Natural Resources (MNR), the Ontario Ministry of the Environment (MOE) and the Federal Department of Fisheries and Oceans (DFO), he concluded that obtaining the required approvals for the removal of the dam would be a difficult process.

Following consultations with the environmental agencies and further meetings with the landowners, Mr. Robinson testified that he finalized and submitted his Report to the agencies on March 5, 2010. He said that he received approval from DFO (Section 35 of the Fisheries Act – Letter of Authorization) on August 19, 2010, noting that DFO had also completed a review of the proposed works under the Canadian Environmental Assessment Act and had found that the project would not likely cause significant environmental impacts when completed in conjunction with the proposed mitigation measures. Mr. Robinson noted that the heron rookery was the primary reason for the requirement of the Canadian Environmental Assessment Act review that was completed in conjunction with the DFO’s fish and habitat review. Subsequently, Mr. Robinson also received a permit from the RVCA (Ontario Regulation 174/06 – Letter of Permission) on January 19, 2011.

With the environmental approvals in hand, Mr. Robinson gave evidence that he then conducted a further meeting with the landowners on March 29, 2011 for the purpose of informally presenting his Report. He said that the official meeting to consider the Report was then held on June 2, 2011 and the Court of Revision was held on August 16, 2011.

According to Mr. Robinson, the works proposed by his Report provide a free-flowing drainage system, complete with improved access and crossings (culverts) as well as provisions for routine maintenance (removal of beaver dams, etc.). He said that he designed the drainage system to provide adequate outlet for the entire drainage basin using a standard agricultural design to the requirements of the Drainage Act.

Mr. Robinson testified that the work proposed by his Report includes fish and bird (heron) habitat mitigation measures required by the approving environmental agencies. Referring to several illustrative aerial photographs, cross-sections and diagrams, Mr. Robinson provided details of the fish and heron habitat mitigation measures, which include recreated deepwater fish refuge pools (2 metres deep), a recreated littoral zone (seasonal shallow water zone), natural meanders in the channel, fish passable grades and culverts, pool/run/riffle complexes as well as protection of heron nesting sites. He said that the pond impacting areas housing the fish and heron habitat mitigation measures will be limited in extent to the east half Lot 7, Concession 1, being the Grinnell lands.

Mr. Robinson testified that his total estimated cost of the project is $504,000. He said that among other things, the estimate includes allowances to be paid to the affected landowners for lands lost due to the widening of the drain as well as crop losses on agricultural land, under Sections 29 and 30 of the Drainage Act, respectively. He detailed the major components of his estimate as follows:

Routine Drain Construction.......................................... $180,000 Routine Engineering/Administration.............................. $80,000 Allowances and Carrying Costs....................................... $8,000 Environmental/Fisheries Construction.......................... $111,000 Environmental/Fisheries Administration...................... $125,000 Total................................................... $504,000

Mr. Robinson explained that the Drainage Act requires the total cost of the project be assessed to the affected landowners and roads in the categories of “benefit”, “outlet liability”, “injuring liability”, “special benefit” and special assessment of a public utility or road authority. He said that he first assessed the special benefit and special assessments to the City of Ottawa Road Authority for the road crossings; to the City of Ottawa, for fish habitat mitigation measures; to Mr. Grinnell, for mitigation measures to preserve the heron rookery artificially created on his property resulting from the construction of the unauthorized dam; to the respective landowners for the installation of culverts through the dam as well as other locations where no access currently exists. He then assessed the remaining cost to normal benefit and outlet. Mr. Robinson presented the following summary of assessment categories:

City of Ottawa (Special Benefits) - Roads..................... $12,000 City of Ottawa (Special Assessment) - Fisheries.......... $220,000 Landowners (Special Benefits) -Environmental............. $16,000 Landowners (Special Benefits) –Access Culverts.......... $54,000 Landowners Normal Benefit & Outlet......................... $202,000 Total................................................... $504,000

Mr. Robinson then detailed the method that he used to assess the normal benefit and outlet. He said that his technique involved converting all the lands within the watershed into a factored or equivalent area. In the case of benefit assessment, this included the area of land within the basin and a factor that is related to land use. In the case of outlet assessment, he used the area of land within the drainage basin, the land use and a factor that represents the location of the land relative to the drain. He explained that for purposes of construction assessment, he divided the drain into two sections. However, for purposes of future maintenance assessment, he further subdivided each of the two sections into three subsections.

Appeal by Herbert and Marlene Campbell

Mr. Herbert Campbell

Mr. Campbell testified that there is a gravel pit on his property part of which is below the elevation of the proposed David Adams Municipal Drain. Referring to the statement in the Report: “You cannot assess those lands that are too low to make use of the works, such as a gravel pit or quarry, unless they are clearly connected by an outlet to the drain”; Mr. Campbell argued the portion of his gravel pit that is below the elevation of the proposed drainage works should not be assessed.

Mr. Robinson testified that the gravel pit occupies 4.4 hectares of Mr. Campbell’s total affected area of 27.24 hectares and that Mr. Campbell’s total assessment is $19,536. He said that 2.2 hectares of the gravel pit is lower in elevation than the proposed drainage works. Accordingly, he recommended that the Tribunal reduce Mr. Campbell’s affected area by 2.2 hectares to 25.04 hectares with a corresponding reduction in his assessment

Appeal by Douglas and Elaine Grinnell

Mr. Douglas Grinnell - Appellant

Mr. Grinnell testified that he has some expertise in drainage because he makes his living as a contractor and is often involved in drainage projects. He stated that he is very familiar with the conditions at the site of the proposed drain because he spent most of his life there. He said that he hunted and/or visited not only his own lands, but also those belonging to upstream landowners, Messrs. Nixon, Campbell and Wilson, from 1966 to 2009. According to Mr. Grinnell, the watercourse on Mr. Campbell’s property was dredged in 1966 to harvest peat which resulted in the creation of ponds. He said that in 1966, there were also substantial ponds on the Wilson property, created by beaver dams.

Mr. Moore referred Mr. Grinnell through 6 black and white aerial photographs taken in 1946, 1960, 1964, 1975, 1979 and 1984. Mr. Grinnell testified that he obtained the aerial photographs taken in 1960, 1979 and 1984 and that photographs from 1946, 1964 and 1975 were appended to the expert witness report prepared by Mr. Bill Graham. From the 1946 photograph, Mr. Grinnell testified he could see the access road that crossed the watercourse and went back to the original homestead on his property. He said that the homestead had been there since 1838. Also referring to the 1946 photograph, Mr. Grinnell said that he could see open water in the watercourse upstream of his property. From the 1960 photograph, Mr. Grinnell testified that he could see the dredged area and bog on the Campbell property as well as the ponds and marshland on the Wilson property. In viewing the 1964 photograph, Mr. Grinnell said that he could see the access road on his property but could not tell if there was water in the watercourse; however, he could see the bog on the Campbell property and trees on the Wilson property. From the 1975 photograph, Mr. Grinnell testified that he could see a big body of water on his and Mr. Nixon’s properties as well as a big body of water on Mr. Campbell’s property. From the 1979 photograph, Mr. Grinnell gleaned that there was water in the watercourse upstream of his laneway; including on the Nixon, Campbell and Wilson sections of the watercourse, and that the water on the Campbell property had an island in the middle of it From the 1984 photograph, Mr. Grinnell said that he could see water upstream of his laneway and that the trees were still alive.

Mr. Moore led Mr. Grinnell through 2 maps. Looking at the first map, Mr. Grinnell testified that it was a map that the Municipality produced around 1988 for the purpose of implementing the 911 numbers. He explained that the significance of the map is that the word “dam” appears on the watercourse on his land with wetlands indicated as extending upstream to Carsonby Road, which he said is consistent with the 1979 aerial photograph. In reference to the second map, Mr. Grinnell testified that it was a map produced in the 1940’s that was given to him by his father, who used it for duck hunting. He said that map shows marshland and forest used for duck hunting on the Campbell and Wilson properties.

Mr. Grinnell gave evidence that he first started to live on his property in 1981 as a tenant and then purchased the lands in 1984. He said that in 1981, the causeway crossing the watercourse on his property was a cobble stone flow-through crossing and explained that the cobble stone was embedded in the clay across the watercourse and that there was water both upstream and downstream of the crossing. He clarified that the standing water upstream of the causeway continued all the way up to Carsonby Road and that there were beaver dams at the Campbell/Nixon property line, at the Campbell/Wilson property line and at 3 locations on the Desjardins property. Mr. Grinnell acknowledged that he did not have any photographs of the crossing as it existed in 1981 or prior.

Mr. Grinnell testified that in August 1983 he began improvements to the causeway at the crossing of the watercourse. He said he built up the causeway by bringing in cobble stones, boulders and pit run gravel because he wanted more water for duck hunting and a wider crossing for better access by bigger tractors and equipment. He explained that since this was the only crossing of the watercourse, it was often used by some of his neighbours, including Messrs. Schellings and Nixon. Prior to his improvements, Mr. Grinnell described the causeway crossing of the watercourse as a wide, very broad valley to a low point in the centre. He testified that none of the upstream agricultural lands were flooded or inundated with water as result of him raising the causeway; however, some of the upstream lands were affected by beaver dams.

Mr. Grinnell testified that the ash trees died as a result of ponding upstream of his causeway and the first heron nests showed up in April 1985. He explained that it was not his intention to attract herons or to create a heron rookery. In subsequent years, the number of herons nesting in the area grew and he could not do anything to get rid of them because the birds are protected by law.

Mr. Grinnell testified that he did not seek permission to raise the causeway in 1983 and nobody upstream said or did anything when he did the work. He explained that he was not concerned about backing up water because the upstream land was already flooded and he was not affecting any agricultural land. He said that the first complaints about the raised causeway came in 1994/1995 when Mr. Campbell and a few other neighbours complained about water being backed up. Subsequently, he said that the Municipality got involved and a number of meetings were convened with the RVCA, as well as other agencies.

In further testimony, Mr. Grinnell stated that in 1994, his upstream neighbours, Messrs. Paul Desjardins and David Adams were removed from his property as they were setting charges on his dam for the purpose of blowing it up.

Mr. Moore referred Mr. Grinnell to several letters and memorandums as follows:

• Letter dated September 30, 1997 from Mr. Basil Parsons (assessed landowner on the Report) to the Township of Rideau complaining about damages being inflicted on upstream lands by water backing up from the dam. Mr. Grinnell discounted Mr. Parson’s complaint because he said that Mr. Parson’s land is located at a higher elevation in the upstream part of the watershed, and was not being affected by water backup from his causeway.
• Memo to file dated October 20, 1997 from Mr. Brian Humphrys, Planning & Development Director for the Township of Rideau that documents a meeting that was held on October 6, 1997. Mr. Grinnell testified that he attended this meeting and said that in response to complaints about water backing up, he produced aerial photographs and topographic maps to show that the water had been there “forever” and that his causeway was not affecting water levels.
• Letter dated August 14, 1998 from Donald A. Maciver, of the Rideau Valley Conservation Authority to Ms. Victoria Vander Linden of the Ottawa Carlton Region of the Ministry of Agriculture. Mr. Grinnell quoted from the letter: “There is evidence that the impoundment has been in place for many years.”
• Letter dated August 24, 1998 from David Ball of the Township of Rideau to Mr. Lambert McCarthy (assessed landowner on the Report). Mr. Grinnell remarked that there was no water backup on Mr. McCarthy’s lands so he did not understand why Mr. McCarthy was involved except that Mr. McCarthy is a friend of some of the petitioners. Mr. Grinnell noted that Mr. Ball’s letter indicates that the Municipality would not be taking any legal action against him. He quoted the letter as saying “…the matter is a civil one to which the Township is not a party.”
• Letter dated November 5, 1998 with attached Minutes of Meeting dated October 28, 1998 from Barbara Sinclair, of Lang Michener Barristers & Solicitors to Mayor Glenn Brooks of the Township of Rideau. Guided by Mr. Moore, Mr. Grinnell referred to excerpts from the Minutes which he said confirm that:
  • the dam on Mr. Grinnell’s land was constructed in 1983;
  • Mr. Grinnell added material to the causeway until the spring of 1985 but did not add anymore material after that;
  • the causeway has been there since the 1880’s;
  • the waterway is a natural watercourse and not a municipal drain; and,
  • in reviewing the “Common Law Aspects of Water”, Ms. Sinclair seems to support the opinion of expert Witness Mr. Donald Good.

Mr. Grinnell reasoned that his dam has not affected the upstream landowners because the land use has never changed before or after the construction of the dam and neither he nor his upstream landowners need drainage for agricultural purposes because:

• Mr. Campbell has no cultivated land;
• Mr. Wilson has no tile drains and the major part of his land is forest;
• Mr. Desjardin has no tile drains and does not require drainage except for a small finger of land that is too small to farm; and,
• Mr. Parson’s land is being used as pasture because it is not economically viable to farm.

Mr. Grinnell described the causeway as having a length of 35 metres from top of bank to top of bank with a spillway in the middle and a width of 18 metres from upstream side to downstream side. He said that the spillway is 0.88 metres lower than the top of bank and that its downstream side is 0.76 metres lower than the upstream side. Mr. Grinnell testified that he recently measured the water depth on the upstream side of the dam next to the trees where the herons nest and found that it ranged from 0.40 to 0.75 metres. He said that his measurement of water depth on Mr. Nixon’s property also ranged from 0.40 to 0.75 metres but on Mr. Campbell’s land it was 1.2 to 1.4 metres. He reasoned that the water was deeper on Mr. Campbell’s land because of the dredging that was done in the 1960s. According to his calculations, Mr. Grinnell testified that if the water level was dropped 0.8 metres, there would be no water remaining on his or Mr. Nixon’s land but there would still be water on Mr. Campbell’s land.

Mr. Grinnell testified the water depths upstream of the dam provided in the Engineer’s Report are about 1 metre deeper than his own recent measurements, and suggested that the Report is wrong. Based on his own survey and measurements, Mr. Grinnell also suggested that the elevation of the top of the dam given in the Report as 89.9 metres is also wrong and that, in fact, the dam is actually about 1 m lower. Accordingly, Mr. Grinnell concluded that since the Engineer’s design of the drainage works is based on wrong elevations of the dam and water depths, it will not work. He said that the Engineer’s design will cause the trees that are being used by the herons as nesting sites to collapse because their roots will be out of the water.

Mr. Grinnell testified that in his opinion, the Engineer’s estimate related to the construction of the heron rookery of $16,000 which was assessed to his property as a special benefit Assessment was drastically understated. He testified that as a drainage contractor, he had knowledge of such costs and he believed that the cost of said work could be as high as $180,000 which was of grave concern to him since the increased amount would be assessed to him as part of the special benefit.

Mr. Moore played and entered into evidence a video showing the conditions of the watercourse on Mr. Grinnell’s property, upstream of the dam.

Mr. Mark Somers – Expert Witness for the Appellants Douglas and Elaine Grinnell (Professional Engineer)

Mr. Somers testified that he visited the site once and reviewed the Drainage Act and Engineer’s Report. While at the site, he said that he observed water flowing over the dam on Mr. Grinnell’s property and estimated that the elevation difference of the water from upstream to downstream was 0.6 metres. He said that he walked upstream along the watercourse as far as Carsonby Road as well as downstream to the outlet in Mud Creek and noted several obstructions along the routes, which he suspected were beaver dams.

As part of his report that was put into evidence by Mr. Moore, Mr. Somers testified that he produced a small scale composite drawing of the area comprising an aerial photograph, superimposed with property lines and topographic features, including contours. He noted that the 90 metre contour intersected both sides of the causeway on Mr. Grinnell’s property which he said indicated that both ends of the causeway are at a 90 metre elevation. While at the site, he observed that the causeway sloped toward the middle from either side toward the spillway and that water was flowing across the spillway. He estimated that the spillway was at least 0.6 m below the elevation on each side.

Mr. Somers noted that the Report provides estimates of $27,750 for the culvert crossing on Mr. Grinnell’s property and $16,000 for the excavation of the littoral zone (habitat for the heron rookery) for a total of $43,750, all of which was assessed to Mr. Grinnell as a special benefit. Mr. Somers testified that he contacted two local contractors to obtain budgetary estimates of this work who told him that the cost would actually range between $250,000 and $300,000. Specifically, he estimated that the cost of the culverts and excavation of the littoral zone will be $64,500 and $180,000, respectively which he said is significantly higher than the Engineer’s estimates and therefore of grave concern.

With respect to the imposition of the special benefit assessments to Mr. Grinnell, Mr. Somers testified that, in his opinion, the cost of the culverts on Mr. Grinnell’s property as well as the excavation of the littoral zone for the heron rookery should be distributed to all the landowners, not just Mr. Grinnell. He said that the landowners, who agreed to the “consensus solution”, are the ones who will benefit from the work.

Mr. Donald Good - Expert Witness for the Appellants Douglas and Elaine Grinnell (Lawyer)

Mr. Good stated that the Drainage Act was originally passed in the 1800’s primarily to develop new farmland, which is still a significant purpose of the Act. He said that this general historic purpose of the Act was carried into the Report in this case.

Mr. Good remarked that the Engineer is responsible for determining if the cost of the drain is justified by the increased value to the agricultural lands in the drainage area. However, in reviewing the Report, he said that he did not find a cost benefit analysis. He commented that the Engineer seems to have taken his mandate to proceed with Report, based on the site visit and subsequent meetings with the landowners. However, he said no authority to proceed can be given at site visits pursuant to Section 9(2) of the Act.

Mr. Good said that the Engineer considered the dam to be illegal or unauthorized and took his marching orders from that. However, Mr. Good noted that in preparing the Report, the Engineer made no effort to establish the legal status of the causeway and/or dam. Mr. Good stated that based on information provided by Mr. Grinnell, the causeway has existed for a very long time, at least as far back as 1951. He pointed out that the purpose of the causeway was to provide access across the watercourse to the farmhouse. For purposes of providing his opinion, Mr. Good testified that he assumed that the causeway has existed in its current form since 1981. He added that based on the Report, the causeway has existed without the approval of any authority and certainly not with the permission of Mr. Grinnell’s neighbours.

Based on his understanding of the history of the causeway, Mr. Good testified that in his opinion, the Grinnells have a prescriptive right to have the causeway across the public watercourse. He said that Section 31 of the Real Property Limitations Act (RPLA) provides that after 20 years, the owner of the easement has a prescriptive right to the easement. He explained that while permission defeats a prescriptive right, he said that it is abundantly clear from the Report that no permission was ever given for the causeway to be constructed or maintained. Mr. Good elaborated that the property right enjoyed by the Grinnells is an easement across a natural watercourse that belongs to the public. He said that since the easement has vested permanently by virtue of the RPLA, it cannot be defeated. Additionally, due to the passage of time, he said that the easement also includes the right to flood water onto neighbouring upstream properties and that these neighbours have lost their right to complain about the flooding.

Mr. Good stated that since the causeway is an easement right owned by the Grinnells, any interference with the easement right is an expropriation of that right. Accordingly, he said that if the easement is altered for the benefit of upstream owners, the cost of the benefit must be applied to the owners receiving the benefit, not the Grinnells which has been done by the Engineer. Furthermore, he said that the Grinnells must be paid an allowance for any expropriation of their easement rights for the benefit of others. He also commented that considering that the Engineer reviewed the causeway in an entirely inappropriate manner, the validity of the entire schedule of assessment must be questioned.

Ms. Crosby challenged Mr. Good’s opinion with respect to the legal status of the causeway and dam. She entered into evidence a Parcel Register showing that the Grinnells purchased their land on September 17, 1984 under the Registry Act, and that the land was converted to the Land Titles Act on the PIN creation date of November 19, 1999. She said that Section 51 of the Land Titles Act specifically excludes the rights of adverse possession and prescriptive rights and only preserves those rights that had been acquired on the PIN creation date. Accordingly, she said that neither of the periods from 1984 or 1981, provide the 20 years required by the RPLA. Mr. Good responded that even if the transfer of the lands to the Land Titles Act in 1999 failed to preserve the rights under the RPLA, the condition for the 20 year period would still have been met since the causeway existed long before 1981. However, Mr. Good explained that in his opinion, Section 51 of the Land Titles Act does not apply in the manner suggested by Ms. Crosby. He argued that Section 51 says that prescriptive rights stop when someone attacks your title. However, in this case, the prescriptive right exists on the same property. He noted that this was not what Section 51 of the Land Titles Act was intended to capture.

Responding to further questions from Ms. Crosby, Mr. Good clarified that he considers the date when the Petition was filed (March 30, 2005) as the end of the 20 year period under the RLPA.

Mr. Moore referred Mr. Good to the letter dated November 5, 1998 with attached Minutes of Meeting dated October 28, 1998 from Barbara Sinclair, of Lang Michener Barristers & Solicitors to Mayor Glenn Brooks of the Township of Rideau wherein Ms. Sinclair comments on the statute of limitations of the 20 year period for the Grinnells to have acquired prescriptive rights. Mr. Good stated that Ms. Sinclair’s opinion is consistent with his own opinion. He added that at the time of building the dam, Mr. Grinnell did not have the legal right to do so; however, he acquired prescriptive rights to do so upon the expiration of the 20 year period.

Mr. Bill Graham Expert Witness for the Appellants Douglas and Elaine Grinnell (Professional Agrologist)

Mr. Graham noted that the Engineer’s Report indicates that the purpose of the report is for “improved drainage for agricultural purposes”. He testified that the drainage basin for the David Adams Municipal Drain stands out because of the land use zoning around it: the land on the east side of the drain is zoned “general rural” and “sand and gravel resource area” while the land on the west of the drain is zoned “rural natural features”.

Mr. Graham said that about 25 years ago, he was hired by some of the landowners in the area to carry out an agricultural survey to determine if the area soil capability justified the lands being zoned for agriculture. His findings at that time were that the area was not prime agricultural land and, as a result, the Municipality changed the zoning of the land to non agricultural.

Mr. Graham commented that the Report describes the soil characteristics of the area only in engineering terms relating to drainage. He said that the Report does not provide any information on the relative size or agricultural significance of the different soil units. He stated that there are two major soil associations in the drainage basin: Dalhousie on the west side of the drain and Jockvale on the east side of the drain. He said that Dalhousie soils comprise deep, level-lying marine clay with moderate capability limitations for agriculture because of wetness and stoniness, while Jockvale soils are fluvial or marine fine sands with major fertility limitations because of their high fines content and lack of clay minerals. Mr. Graham added that there are also some smaller areas of Grenville association soils as wells as Kars soils, the latter being used for gravel extraction.

Mr. Graham explained that the soil classification system of the Canada Land Inventory for mineral soils is based on limitations to agricultural use. He said that there are 7 classes: Classes 1, 2 and 3 are considered prime agricultural soils; Classes 4 and 5 have severe limitations that restrict their productive capability; Class 6 is usually used for permanent pasture; and, Class 7 is a non agricultural soil. With respect to the soils in this area, he said that the Dalhousie and Grenville soils are Class 3, Jockvale is Class 4 and Kars is Class 5. Mr. Graham testified that he visited the site and sampled the soils at several locations in order to confirm the actual conditions.

Mr. Graham gave evidence that he reviewed the historical agricultural use of the land of the area from 1946 to 2008 using aerial photographs and digital imagery which he obtained from the National Photo Library. He said that between 1946 and 1964, the only notable change was the opening of gravel pits on Lots 8 and 9. From the 1975 aerial photograph, he noted that there were several residential lots that had been severed along 1st Line Road. Between 1975 and 2008, he said there were some changes to the gravel extraction areas and the agricultural area on Lot 10 had been expanded. He estimated that by 2008, the total acreage being farmed in the drainage basin was approximately 140 acres. During the hearing, Mr. Moore also led Mr. Graham through three other aerial photographs from 1960, 1975 and 1984 which Mr. Graham said reinforced his observations.

Mr. Graham’s conclusions were that:

• there has been no significant change in the area of land being used for agriculture since 1946;
• there is no large area of prime agricultural soil in the drainage basin that would benefit from additional surface and sub-surface drainage;
• any attempt to clear the lands currently covered with trees and brush for agricultural use would be an economic failure;
• there is no evidence of need or justification for additional surface or subsurface drainage in the agricultural basin; and,
• the works proposed by the Report are unrealistic and unnecessary from an agricultural point of view.

Mr. Moore read an excerpt from the administrative Report to Agriculture and Rural Affairs Committee and Council of the Municipality, dated May 31, 2011 which states, “agricultural land use has intensified over the years… , as well as an excerpt from the preamble to the Draft By-law stating that: “…agricultural land use has intensified…” Mr. Graham said that neither of the statements is true.

During cross examination, Ms. Crosby referenced and read Section 4 of the Drainage Act which sets out the requirements for a petition. She noted that in order for a petition to be valid, it must be signed by “…the majority in number of owners…” or “…the owner or owners of lands...representing at least 60% of the hectarage in the area” or “where a drainage works is required for a road, the engineer or the road superintendent having jurisdiction over such road…” or “where a drainage works is required for the drainage of lands used for agricultural purposes, the Director…” Ms. Crosby said that nothing in the Drainage Act states that the petition for drainage must be filed based on agricultural use and challenged Mr. Graham on the grounds that the Report had been prepared for the sole purpose of improving agricultural land. Mr. Graham’s response was that the Engineer’s Report makes that very statement several times.

Responding to questions from the Tribunal, Mr. Graham expanded on the meaning of agricultural land use beyond normal cultivation of crops, as also including raising of livestock, dairy, chicken and egg production. In response to further questions, he said that while normal production returns for corn and soybeans are $270.50 and $184.20 per acre respectively, he determined the expected returns on lands within the drainage basin would be $34.25 and $44.34 for corn and soybeans respectively.

Mr. Herbert Campbell – Appellant

Mr. Campbell testified that he has owned his property since 1993; however, his father originally purchased the land in 1957, and he visited the area many times since 1957. He said that prior to 1985 he could walk across the watercourse to the back of the property throughout the year except for a few weeks during the spring. In 1990, Mr. Campbell stated that his father asked him to investigate where all the water was coming from and found that Mr. Grinnell had built a dam across the watercourse that was backing up water onto their land. He said that he marked the water level for future observation and found that the water kept rising, leading him to conclude that the dam was being raised. However, during questioning from Mr. Moore, he acknowledged that he did not witness the dam being raised and did not take any measurement or photographs of the dam.

Mr. Campbell gave evidence that in 1994 the Municipality told him they couldn’t do anything about the dam so he went to MNR. He said that he finally got a response from MNR by way of a letter dated May 21, 1996 which indicated that the dam was a civil matter. Mr. Campbell also said that the MNR letter indicated that the dam had been raised 1.5 to 2 feet in 1984, that Mr. Grinnell should have obtained permission to build the dam and that the MNR could not lay charges against Mr. Grinnell because too much time had passed.

Mr. Campbell remarked that it used to be very nice on his land in the fall when the leaves changed colour but now many of the trees are dead and he needs either a boat or helicopter to get to the back of his property.

Responding to questions from Mr. Moore, Mr. Campbell testified that contrary to Mr. Grinnell’s evidence, there had never been a dragline on his property and that the watercourse had never been dredged. He clarified that there may have been a small quantity of material removed from the watercourse using a small loader. Mr. Moore challenged Mr. Campbell on his testimony noting that the Engineer measured a water depth on his property of 1.4 metres, suggesting that the area had been dredged. Mr. Campbell responded that the water is deep on his property because it is being backed up by Mr. Grinnell’s dam.

Mr. Moore then led Mr. Campbell through the series of aerial photographs dating from 1946 to 2008 asking Mr. Campbell to identify various features, including agricultural land, wooded areas, surface water areas, roads and lanes. Mr. Campbell attempted to identify the features on the aerials but responded by saying that he was not an expert and could not identify the items on the aerial maps, especially since the photographs were taken at great distance. Mr. Campbell did acknowledge that the laneway on Mr. Grinnell’s property was there in 1953 but he based his answer on the letter from MNR rather than the aerial photographs.

Mr. Campbell acknowledged that he did not seek legal advice on the matter of the dam. He also agreed that none of his land is being currently used for agricultural purposes and that he has no plans to develop the land for residential use.

Ms. Gilbert Desjardins – Assessed Landowner

Mr. Desjardins testified that his farther Paul Desjardin, who is an assessed landowner, passed away last year and that he is the executor of the estate. He said that his father bought the property in 1947 and that he is familiar with the lands because he was raised there all his life. At the current time, he said that he is involved in renting the property for cash crops. Mr. Desjardins gave evidence that the lands were originally used for a dairy farm, and then converted for growing oats, barley and hay and later to cash crops such as corn and soybeans.

Mr. Desjardin stated that the water backup problem caused his father a lot of financial and mental anguish. He conceded that they always had problems with beaver dams in the watercourse noting that from time to time, he and his brother would have to go and blow up the beaver dams. He explained that once the beaver dams were gone, they would get relief from the water; however, after removing the beaver dams sometime in the 1980s, he said that the water backup did not improve but actually got worse.

Mr. Desjardins testified that there was a maple bush adjacent to the watercourse which his father used for firewood and lumber. He said that his father also had a field in the bush where he grew corn and cucumbers. However, the maple trees died and about 18 acres of the farm field is not being used because of backup of water from Mr. Grinnell’s dam. He explained that he is losing $100 per acre rent on the 18 acres.

Mr. Desjardin said he signed the Petition for drainage to improve the ability to farm their property and added that he and his father talked about clearing some of the bush for farmland once the area is drained.

Mr. Moore referred Mr. Desjardins to the aerial photographs, particularly one taken in 1987 and asked him to identify certain features. Mr. Desjardin complained that the photographs were taken too high and so he had trouble seeing any details. Mr. Moore challenged Mr. Desjardin with respect to the 18 acres of land that he said is not currently being farmed because of the backup of water from the dam. He suggested to Mr. Desjardin that the aerial photographs taken before and after the construction of the dam show no change in land use of the 18 acres. He also suggested that the land is not being farmed because it is too narrow for large farm equipment. Mr. Desjardins disagreed that there had been no change in land use but was aware of the limitations of the 18 acres for large farm equipment. He explained that once drained, he intends to clear about 20 adjacent acres of bush to join up with the 18 acres. Mr. Desjardin disagreed with Mr. Graham’s testimony that the cost of clearing would be $5,000 per acre; he said that although he did not get a quote, he expects the costs will be much less.

In response to further questions from Mr. Moore, Mr. Desjardin testified that he is aware of his assessment of $30,675 and remarked that the recovery of lost crops will more than cover his assessment.

Ms. Monica McCarthy – Assessed Landowner

Ms. McCarthy testified that her lands are about 93 to 100 acres in area. She said that she was aware that her assessment is $20,646 which is fine. She went on to testify that the land was being used for agricultural purposes when she and her husband bought it in 1981. She said that they tried raising cattle at first but that didn’t work out so they planted buckwheat but it could not be harvested because it was too wet. She stated that they did not try planting a crop again but instead her husband planted 2,000 trees. She said that all the trees died because the land was not draining properly. She said her husband tried planting trees again, this time further away from the watercourse and although some still died, most are still alive. She explained that they sell the trees for lumber. Ms. McCarthy went on to testify that when they lost the 2,000 trees, her husband investigated why the water was backing up. Although he did find beaver dams, he identified the Grinnell dam as having a significant impact on their property, both financial as well as enjoyment of their land.

Noting that Ms. McCarthy’s lands are located near the upper end of the watershed and are at least 5 metres higher than the top of the dam on Mr. Grinnell’s property, Mr. Moore challenged Ms. McCarthy’s testimony that they are being affected by water backing up from the dam. Ms. McCarthy responded that the backup of water from the Grinnell dam is keeping the beavers there, who in turn build more upstream dams, thereby backing up water further upstream as well.

Responding to Mr. Moore again, Ms. McCarthy testified that they do not have any plans to develop their land for estate residential lots.

Mr. John Henderson – Assessed Landowner

Mr. Henderson put into evidence pertinent excerpts from the City of Ottawa Official Plan that apply to the drainage basin of the David Adams Municipal Drain as well as excerpts from the Existing Conditions Field Survey Report of the basin that was carried out in 2005 by the City of Ottawa’s consultant, Marshall Macklin Monaghan, in advance of the Sub-Watershed Study for Mud Creek.

Referring to the Official Plan (OP), Mr. Henderson noted that much of the watershed for the David Adams Municipal Drain is designated as a Rural Natural Features Area which is described as a natural environment area comprised of forests and wetlands both on public and private lands. He referenced a number of statements in the OP pertaining to the Municipality’s commitment to the preservation and protection of such lands and pointed to clauses saying that the Municipality will support said lands with publicly funded programs to enhance the natural environment systems. He also referenced commentary and policy directives to protect these areas to the benefit of the entire region.

Mr. Henderson noted that the Existing Conditions Field Survey Report highlights the importance of maintaining biodiversity and ecological functions for one of the largest remaining upland natural environment areas in the clay plain within the region. He also pointed to the statement in the report indicating that the natural environment areas of the Mud Creek watershed represent only 1.7% of the overall area, which is far less than the Environment Canada Guideline of 6%.

Mr. Henderson made reference to the Engineer’s special assessment of $219,682 to the City of Ottawa for the cost of fisheries mitigation measures above and beyond the normal costs, as well as the special assessment of $16,000 to Mr. Grinnell for the cost of the heron rookery. Mr. Henderson argued that the Engineer was justified in assessing the City of Ottawa for the fisheries mitigation because the municipality has a responsibility to maintain and support the features of the natural environment area pursuant to its own Official Plan. He said that these features benefit the entire regional community not just the local landowners. He commented that the Municipality should not be able to designate the lands as natural environment and then walk away without contributing to their protection. Using the same rationale, Mr. Henderson argued that should the Tribunal decide to reduce or eliminate any assessments to Mr. Grinnell for the cost of the heron rookery, such costs should be added to the Municipality’s special assessment; failing that, he suggested that the costs be charged to the original petitioners.

Mr. Henderson commented that the apparent alternative solution referred to in the Engineer’s Report, involving lowering the elevation of the dam, was dismissed by the Engineer because of the negative reaction of the landowners. He noted that there does not appear to have been an actual reaction by DFO as to what the fisheries mitigation measures might have required under that alternative and what costs would be involved. He remarked that he would have supported that alternative, although he did not oppose the current Report.

Mr. A.J. Robinson – Engineer – Reply Evidence

Mr. Robinson repeated some of his previous testimony, including his reference to the Notice of Violation dated May 5, 1997 and that the heron rookery was the primary reason for the requirement of the Canadian Environmental Assessment Act review, and provided some further elaboration and comments.

Mr. Moore objected to Mr. Robinson’s reference to the “May 5, 1997 Notice of Violation”. Mr. Robinson explained that the basis of his reference was a letter of that date from the RVCA to Mr. Grinnell and that the words “Notice of Violation” appeared in the “regarding” line.

Mr. Moore also objected to Mr. Robinson’s statement that the heron rookery was the primary reason for the requirement of the Canadian Environmental Assessment Act review. Mr. Robinson conceded that the heron rookery may not have been the only reason for the requirement.

Mr. Robinson noted that cost associated with routine drainage on the project of $180,000 is not excessive and that the remaining costs are due to extraneous circumstances such as fisheries mitigation and the heron rookery resulting from the construction of the dam. He explained that the construction cost estimates in his Report were prepared based on actual contract cost data from his other projects, as well as the Municipality’s data base of construction costs. He said that he was very confident in his cost estimates for the culvert construction; however, he said that the cost estimate for excavation related to the heron rookery was a little more challenging.

Mr. Robinson testified that he was also very confident that the survey and the elevations shown on the drawings are accurate.

Mr. A.J. Robinson – Engineer – Cross Examination by Mr. Moore

Mr. Moore pointed out that one of the requirements of the Guideline for Services of the Engineer Under the Drainage Act 1998 (the Guideline) published by the Association of Professional Engineers of Ontario, is for the Engineer to look at the Petition and satisfy himself that it complies with the Act. In this regard, Mr. Moore challenged Mr. Robinson on the validity of the Petition on the grounds that “…it was signed by the majority of landowners…” as stated in his Report. Mr. Robinson conceded that the majority of landowners did not sign the Petition and that the statement in his Report was an error; however, he said that the Petition satisfied the requirements of Section 4 of the Act because there were sufficient landowner signatures representing at least 60% of the area requiring drainage, pursuant to Section 4(1) (b) of the Act. Mr. Robinson added that, in fact, there were sufficient owners on the Petition to represent 72.63% of the area requiring drainage. Mr. Moore complained that the Report does not contain any calculations to confirm the validity of the petition and proceeded with extensive questioning of the Engineer with respect to this. Mr. Moore went through the signatures on the Petition one by one seeking Mr. Robinson’s explanation as to which names he included and which he excluded and then complained that the names did not match the Schedule of Assessment. He also complained that the drainage area in the text of the Report is stated as 325 hectares which does not match the 298.72 hectares given in the schedule of assessment. Furthermore, Mr. Moore alleged that one of the signatories to the petition, Mr. Bradford, had withdrawn, and his land area should not have been included. Mr. Moore therefore challenged Mr. Robinson’s calculations with respect to the validity of the Petition.

Mr. Robinson explained that he established the area requiring drainage that is used to determine the validity of the Petition early in the process and said the area requiring drainage is not necessarily the same as the drainage area that ended up in the Schedule of Assessment. He testified that the 325 hectares in the text of the Report is an approximate area, which should have been more appropriately stated as 300 hectares, and that the actual area of the drainage area is 298.7 hectares as shown in the Schedule of Assessment. Mr. Robinson acknowledged that he included Mr. Bradford’s land in making his determination as to the validity of the Petition, but said that even if Mr. Bradford was not included the Petition would still satisfy the requirements of Section 4(1) (b) of the Act by a wide margin. Ms. Crosby stated that the Municipality had no record of Mr. Bradford having withdrawn from the Petition.

Mr. Moore challenged the Engineer on a number of statements in his Report:

• “Natural watercourse versus or an Award Drain”: Mr. Robinson agreed that the existing waterway is a natural watercourse and not an Award Drain.
• “unauthorized dam across the natural watercourse”: Mr. Robinson agreed that Mr. Grinnell’s road had been there for a long time but disagreed that it acted as a dam prior to the time when Mr. Grinnell built up the crossing in 1984. He clarified that he was referring to the dam as being unauthorized not the road.
• “structure has severely impacted drainage”: Mr. Robinson agreed that some of the backup of water upstream of Mr. Grinnell’s road is the result of beaver dams. However, based on the expansion of the upstream body of water, he maintained his position that the dam appears to have been raised after its original construction in 1984. He discounted Mr. Moore’s proposition that the expansion in the water body was the result of upstream beaver dams having been blown up allowing the water to backup behind Mr. Grinnell’s dam; he said the extra water would flow over the dam without causing any expansion unless the dam was raised.
• “purpose of the Report is drainage for agricultural purposes”. Mr. Robinson stated that agriculture includes many uses beyond cultivated crops and therefore had been misinterpreted by Mr. Moore and his witnesses. He said that in hindsight, it would have been more appropriate to have used the words “rural drainage” instead of “agricultural drainage” throughout his Report.
• “heron rookery was artificially created”: Mr. Robinson testified that he did not know if the rookery was an intended or unintended consequence of building the dam. However, he acknowledged that he was not an expert on herons and did not have any evidence to suggest that Mr. Grinnell brought in herons. He also acknowledged that he did not hire a heron expert.
• “mitigation measures as negotiated (in principle) with DFO”: Mr. Robinson explained that the words “in principle” are remnants of the Report prior to it being submitted to DFO for approval and could logically have been removed. However, he said that he was hesitant to make any changes to the Report once approved by DFO.

Mr. Moore also challenged the Engineer alleging that he failed to:

• to do any research on agricultural land use in the basin contrary to the requirements of the Guideline;
• consult with the Ministry of Agriculture to evaluate the agricultural capability of the basin;
• solicit specific landowners on what they planned to do with their land;
• consult with DFO until 2007, two years after starting the project; and,
• address that the lands within the drainage basin are considered by the City of Ottawa’s Official Plan as being regionally significant and are part of a region that is deficient in wetlands.

Mr. Robinson’s summary response was that his Report complies with the requirements of the Drainage Act. With respect to consulting with DFO, he said that normal procedure is to first consult with the RVCA which he did early in the process.

Mr. Robinson acknowledged that he could not determine the configuration and elevation of the road crossing of the watercourse from the aerial photographs; either before or after the construction of the dam. He also confirmed that he did not personally observe the construction of the dam on Mr. Grinnell’s property.

Referring to the aerial photographs from 1960, 1979 and 1984, Mr. Moore suggested to Mr. Robinson that the causeway backed up water long before 1984 when Mr. Grinnell raised the dam. Mr. Robinson testified that he could not see any water upstream of Mr. Grinnell’s roadway in the 1960 photograph, but conceded that the 1979 photographs appear to show at least some upstream water as a result of a blockage at the roadway but he would not classify that as a dam.

Mr. Robinson acknowledged that he had not seen some of the documents relating to the meetings and correspondence from the Municipality, other authorities and private landowners dating back to the 1990’s until this hearing. He said that the 1988 map for the purpose of implementing the 911 numbers was one of the documents that he was seeing for the first time. In reference to the map, Mr. Robinson agreed that the map showed a body of water and the word “dam”.

Mr. Moore pointed to the letter dated May 21, 1996 from the MNR to Mr. Herb Campbell which he said highlights the fact that there had been an access road crossing the watercourse on Mr. Grinnell’s land for many years and that the surface elevation of the road bed was raised approximately 1.5 to 2 feet in 1984. Mr. Robinson did not dispute that the access road had been there for many years; however, he said that the height of the dam is much higher today than stated in the letter.

Mr. Robinson conceded that he did not obtain a legal opinion on Mr. Grinnell’s rights under common law. He also acknowledged that he did not get a legal opinion to support his assertion that the dam was unauthorized. However, he said he confirmed with the Municipality and the RVCA that Mr. Grinnell had not been granted a permit to build the dam. Mr. Moore referred Mr. Robinson to the letter dated November 5, 1998 with attached Minutes of Meeting dated October 28, 1998 from Barbara Sinclair, of Lang Michener Barristers & Solicitors to Mayor Glenn Brooks of the Township of Rideau. Mr. Robinson testified that he had not been provided with a copy of the letter until this hearing.

Mr. Moore asked Mr. Robinson why he had not proposed the alternate solution to drop the dam down to the 1983 level. Mr. Robinson testified that he discussed the alternate solution with the landowners. This solution involved lowering the dam by 1 metre, but this was not acceptable to the landowners, including Mr. Grinnell, or DFO. He explained that dropping the dam by 1 metre would still leave water behind the dam. He added that he did not estimate the cost of the alternative because it was not an acceptable solution to anybody.

Mr. Moore continued his cross examination with a lengthy and detailed questioning of Mr. Robinson on the profile and cross-section of the dam. Mr. Moore asserted that the Engineer was sloppy in the preparation of the dam cross-section shown on his drawings. He noted that the cross-section depicts the dam as being flat across the entire structure at an elevation of 89.9 metres and that the water level behind the dam is at 89.8 metres. Mr. Robinson conceded that the cross-section was not representative of the actual surface profile, however, he reaffirmed the accuracy of the elevations shown and that the drawing was sufficient for its intended purpose of showing the proposed construction.

Mr. Moore asserted to Mr. Robinson that his elevations, profile and cross-section of the roadway over the dam are wrong, pursuant to the measurement and elevations taken by Mr. Grinnell and confirmed by Mr. Somers. He said that according to Mr. Grinnell’s survey, the road over the dam slopes down from each side by as much as 1 metre toward a spillway in the middle and that the spillway slopes 0.8 metres from upstream to downstream. He said that based on the evidence of Mr. Somers that the 90 metre contour line intersects with the side of the dam, it follows that the elevation of the spillway is approximately 89 metres which are about 1 metre lower than the elevation of 89.9 metres indicated throughout the Report. He said the fact that the dam is actually lower by 1 metre was also confirmed by Mr. Grinnell’s measurements of the water depths upstream of the dam indicating that the water is actually 0.4 to 0.75 metres deep instead of 1.7 metres shown in the Report. Mr. Robinson testified that he was confident with the survey of the site carried out by his staff and undertook to produce details of same.

Following an overnight recess, Mr. Robinson put into evidence the survey details comprised of 7 pages and survey notes comprised of 30 pages. Using the survey details, Mr. Robinson highlighted a series of elevations taken at the dam. He noted that the elevations along the top of the dam from side to side along the centre line of the roadway ranged from 90.18 metres to 89.81 metres, indicating that the drop in elevation from the sides to the middle of the dam was 0.27 metres, not 1 metre as asserted by Mr. Grinnell. He said this is consistent with the elevation of 89.9 metres shown on the cross section drawing of the dam. The elevations at the centre of the dam from upstream to downstream were 89.79, 89.87 and 89.82 indicating that the dam was slightly crowned in the middle with little or no drop in elevation from upstream to downstream. Mr. Robinson also pointed to the elevations of the bottom of the channel both upstream and downstream of the dam as being 88.06 and 88.07 metres respectively, which is consistent with the original profile of the channel. With respect to the depth of water upstream of the dam, Mr. Robinson testified that those measurements were taken in the winter when the area was covered with ice. He explained that his survey crew drilled holes in the ice to measure the depth of the water upstream of the dam, which at the time of the survey was approximately 1.7 metres. Mr. Robinson stated that he did not know why Mr. Grinnell’s numbers were different but suggested that one possible explanation might be that erosion and/or sedimentation may have occurred between the time of his field survey in 2006 to the time that Mr. Grinnell took his readings in 2012.

Unconvinced as to the accuracy of the Engineer’s survey, Mr. Moore asked the Tribunal to grant a delay in the proceedings to allow time for a proper survey of the dam to be carried out. He argued that the Engineer’s Report does not provide a clear profile and cross-section of the existing structure in a way that can be properly interpreted as required by the Guideline. He said that such information is crucial since the entire design is based on the survey of the dam, which he said appears to be wrong. Ms. Crosby objected to the delay on the grounds that Mr. Moore had ample opportunity in advance of the hearing to have his own survey carried out. Additionally, Ms. Crosby argued that this matter deals with riparian rights on a natural watercourse and how the interruption or obstruction of flow is affecting the landowners; and that the actual profile and shape of the dam are not relevant for the purposes of this hearing. The Tribunal was swayed by Ms. Crosby’s arguments and following a brief recess, denied Mr. Moore’s request for a delay.

Noting that Mr. Robinson was not an expert on herons and that he had not hired the services of a heron expert, Mr. Moore challenged the Engineer’s proposed mitigation measures for the heron rookery. Mr. Robinson admitted that the proposed method was new and that he was not aware of any other project where this had been done before. However, the proposed measures were devised in consultation with his biologist and the approving authorities had approved the method.

Mr. Moore turned his attention to the administrative reports and draft by-law that went to Municipal Council for the purpose of adopting the Engineer’s Report. He complained that the administrative report and attached by-law contained significant errors including a reference to the “David Adams Award Ditch” instead of natural watercourse; a statement that “agricultural land use has intensified over the years”, contrary to the evidence; and, a statement the “a majority of landowners” signed the Petition which is not true. Mr. Robinson said that he could not comment on the administrative report and by-law because he was not the author. Ms. Crosby stated that the by-law is still provisional and that any errors will be corrected before its final passage.

Mr. Moore alleged that Mr. Robinson did not ask Mr. Grinnell’s permission to locate the fisheries and heron mitigation works on his property. Mr. Robinson replied by saying that the proposed mitigation measures will be located within the existing pond area and will not impact Mr. Grinnell beyond the limits of the pond.

Mr. Robinson conceded that there is no provision in the Drainage Act to make a special assessment such as he made to the Municipality; however, he said that the special assessment was made in consultation and with the agreement of the Municipality. He conceded that the Report wrongly refers to Mr. Grinnell’s special benefit assessment for the heron rookery as a special assessment in a few locations; it is, in fact, a special benefit assessment as defined in the Act.

With respect to Mr. Grinnell’s special benefit assessment for the construction of the culvert, Mr. Moore argued that Mr. Grinnell’s culvert can be distinguished from the other private culvert crossings by the fact that it is not new. Mr. Robinson agreed that the crossing is not new. Mr. Moore also argued that if the new culverts for the other landowners are not installed, the drainage works will still function but it will not function if culverts are not installed through the dam. Accordingly, based on the definition of special benefit in the Act that references a feature that “has no effect on the functioning of the drainage works”, Mr. Moore reasoned that no special benefit assessment should have been made for the culvert. Furthermore, Mr. Moore suggested that the Engineer should have paid an allowance to Mr. Grinnell for the expropriation of the crossing. Mr. Robinson did not dispute the definition of special benefit as quoted by Mr. Moore but said that he did not see why Mr. Grinnell should get paid for the expropriation of the crossing since the crossing will remain after the culverts are installed. Mr. Moore also asserted that there is no provision in the Drainage Act to assess culverts as a special benefit but Mr. Robinson disagreed.

Mr. Robinson acknowledged that he did not do a cost benefit analysis since none was requested pursuant to Section 7 of the Act. However, Mr. Moore challenged Mr. Robinson that he ought to have considered Section 40 of the Act to decide whether the works were impractical. Mr. Robinson testified that he did not find the works to be impractical.

Summation and Argument by Mr. Moore

Mr. Moore summarized his arguments under the four areas of Mr. Grinnell’s appeal, being Sections 48(1) (a), 48(1) (b), 48(1) (c) and 54 of the Drainage Act.

Section 48(1) (a) “…the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof”

Mr. Moore claimed that the Report does not satisfy the requirements of Section 48(1) (a) of the Act.

Mr. Moore affirmed that Section 48(1) (a) does not say that it is only to be considered when there has been a benefit/cost statement requested by the Municipality pursuant to Section 7 of the Act. He argued that the test applies to each and every drainage report regardless of whether a benefit/cost statement has been requested or paid for. He contended that the failure of the Report to provide any evidence or information to support the benefits to be derived from the $504,000 being spent in itself fails to satisfy the considerations of Section 48(1) (a). He emphasized that is painfully obvious that the benefits are not commensurate with the costs because there is no evidence, no information, no calculations and no quantitative or dollar assessment. He argued that the evidence from Mr. Desjardins that he would be able to recuperate approximately $2,000 per year does not satisfy the word “commensurate” by any stretch of the imagination. With regard to the testimony from Ms. McCarthy with respect to trees, no information was provided as to the economic benefit to be derived. He also pointed to the evidence from the landowners that they do not intend to develop their property into estate lots.

Mr. Moore argued that you cannot use the Act to propose a project without any idea as to the benefit. He said that the Municipality and the Engineer took a risk not to spend the money to do a cost benefit analysis early in the process.

Mr. Moore stressed that that there is no evidence or information on basements being flooded or roads or structures being damaged. He said that in 1998 when Ms. Sinclair was retained by the Municipality, she made it clear that the Municipality would not pursue any relief from Mr. Grinnell for the dam because the only piece of land that was possibly being affected was the Carsonby Road allowance which had not been damaged.

Mr. Moore declared that the Report has boxed itself into agricultural considerations by stating that its purpose is to improve agricultural land. He said that clearly the by-law and administrative report to Municipal Council is very specific as to the purpose of the drainage works, that being for agricultural purposes. He referenced Mr. Graham’s evidence that any attempt to farm within the drainage basin would be an economic failure; that, even if drained properly, the soils in the area would not yield more than $34 to $44 per acre; and that the agricultural land in the area does not need drainage.

Mr. Moore questioned why the Report was prepared. He suggested that the real purpose was to indirectly do what the landowners were not prepared to do, that is to pursue a remedy in the courts.

Mr. Moore stated that, in fact, there will be a detriment or negative benefit to the proposed works because the basin comprises a significant natural area of wetlands in a rapidly diminishing stock of such and the proposed works will take away from that. He argued that ponds have existed in the area for at least 100 years but certainly since 1946, as evidenced by the aerial photograph from that year. He said that the lands have always been forested and comprised of a sloppy marsh and that removal of that does not create a benefit. He noted that the fish habitat, the rookery and other wild life is recognized as a positive by the Municipality, the RVCA and DFO and said that works proposed by the Report will take away from that. Mr. Moore suggested that if no work is done, the herons and fish will continue to exist and there will be no costs incurred.

Mr. Moore claimed that the petitioning landowners recognized that the costs would be assessed back to them and that the petitioners had an opportunity to withdraw when the costs were presented. He said once the costs got out of control, especially when the mitigation measures were added in, in an attempt to make the project go, the Municipality took on $219,682 in costs, making it very difficult for any of the petitioning landowners to be concerned. Additionally, he said that the $43,000 that was assessed to Mr. Grinnell provided even more motivation to petitioners not to withdraw.

Mr. Moore further argued that pursuant to the evidence from Mr. Somers, the costs of this project will be significantly higher than the Engineer’s estimate, particularly with respect to the heron rookery which has been underestimated by 20% or more. He submitted that the increased costs will make the benefits to be derived even less commensurate with the costs.

Section 48(1) (b) “…the drainage works should be modified on grounds to be stated”

Mr. Moore noted that the Report does indicate an alternative that involved lowering the dam. However, he said the alternative was quickly dismissed and no attempt was made to see what mitigation measures would have been required for that alternative. Mr. Moore contended that the alternative method would have prevented the measures for the heron rookery and likely resulted in less costs for fisheries mitigation, but we wouldn’t know that unless the Report is modified. Accordingly, he argued that the Tribunal should strike out the Report and have a new report prepared implementing the alternative solution.

Mr. Moore alleged that the whole project was initiated, reviewed, processed, analyzed, marketed, repackaged, remarketed and sold based upon fairly significant irregularities, errors and inconsistencies which provide more reason for the Tribunal to strike out the Report. In this regard, Mr. Moore argued that:

• The Engineer did not act independently and allowed himself to be influenced by the petitioners, contrary to Sections 11 and 40 of the Act.
• The Engineer failed to deal with the impact of the proposed works on the clear existence of Mr. Grinnell’s prescriptive rights to the dam. He pointed to the evidence that Mr. Grinnell’s causeway has been in existence for 200 years and that the aerial photographs show that it was backing up water as a dam going back to 1946. He also pointed to Mr. Good’s evidence that Mr. Grinnell enjoys a prescriptive right to have the dam at the height it is now which cannot be defeated by the Drainage Act or the Land Titles Act.
• There are very serious concerns regarding the accuracy of the Engineer’s measurements of the dam and water level. He pointed to the evidence from Mr. Grinnell supported by Mr. Somers that challenged the Engineer’s measurements. He claimed that it is impossible for the dam to be at an elevation of 89.9 metres with a water depth of 1.7 metres as stated by the Engineer and that, in fact, it is lower by as much as 1 metre. Mr. Moore highlighted the importance of this because the Engineer’s calculations for the design of the littoral zone and fish ponds are all based on that elevation.
• The Engineer’s cost estimates for the construction of the heron rookery and Mr. Grinnell’s culvert are drastically low. He pointed to Mr. Somers’ evidence in that some of the costs, particularly the heron rookery, could be as much as 20 times higher than the Engineer’s estimate.
• In addition to errors in the Report, he pointed to the administrative report to the Municipal Council as having an erroneous reference to the David Adams Award Ditch constructed in the 1800’s, leading Council to believe they were approving additional work to an existing award ditch.

Section 48(1) (c) “…the compensation or allowances provided by the engineer are inadequate…”

Mr. Moore argued that pursuant to the evidence by Mr. Good, since Mr. Grinnell has a prescriptive right to have the dam, the removal of that right by the Report constitutes an expropriation for which Mr. Grinnell should be compensated.

Mr. Moore also argued that Mr. Grinnell should be paid an allowance for the fish and heron mitigation measures to be constructed on his property. He emphasized that the other landowners turned down the construction of the mitigation measures on their property while Mr. Grinnell was not even asked.

Section 54(1) Appeal of assessment “…from the decision of the court of revision…”

Mr. Moore argued that there is no provision in the Act to allow the cost of a culvert to be assessed against a private landowner. He pointed to the fact that Mr. Grinnell’s culvert is different from the other landowners because a crossing already exists on Mr. Grinnell’s land, whereas, the other crossings are new. Mr. Moore argued that Mr. Grinnell’s culvert is not a special benefit because the definition of a special benefit states that it is for special work or feature “that has no effect on the functioning of the drainage works.” He reasoned that whether or not the new culverts for the other landowners are installed, it will have no effect on the functioning of the drain. However, if Mr. Grinnell’s culvert is not installed through the dam, the drain will not work. Accordingly, Mr. Moore stated that Mr. Grinnell’s culvert should be assessed to all landowners.

Mr. Moore affirmed that the cost of the rookery should not be assessed to Mr. Grinnell because the rookery was unintended and the mitigation measures must be done in order for the drainage works to benefit all the landowners. Accordingly, he reasoned that the cost of the rookery falls into the same category as the fish mitigation and therefore should be assessed to the Municipality or to all the landowners, which is also supported by the submissions from Mr. Henderson. Mr. Moore asserted that there is no guarantee that the heron rookery will even work because it is, in fact, an experiment that no one seems to have tried before. He argued that Mr. Grinnell is being asked to pay for an experiment with no risk to the Municipality or the other landowners. Mr. Moore also pointed to the evidence from Mr. Somers that the Engineer drastically underestimated the cost of the heron rookery mitigation measures. Pursuant to Mr. Somers’ evidence, he said the costs could be as much as $200,000 instead of the $16,000 estimated by the Engineer, which is of grave concern to Mr. Grinnell since he would be asked to pay extra costs.

Mr. Moore argued that Section 59 of the Act will not protect Mr. Grinnell from increases in his special benefit assessments since Mr. Grinnell will have no further say in whether the project proceeds or not because he was not a petitioner. Also, Mr. Moore emphasized that whereas Mr. Moore’s assessment could increase as much as 20 times, it may not invoke Section 59 of the Act because the increased cost of the items related to Mr. Grinnell’s special assessment may not necessarily result in the overall project cost being over 133% of the Engineer’s estimate.

Summary and Argument by Ms. Crosby

Ms. Crosby stressed that there are two requirements that must be met in order to claim prescriptive rights under Section 31 of the Real Property Limitations Act:

• first, the person claiming the right has to have claimed it without interruption for a full period of 20 years; and,
• second, to be able to show that the right was enjoyed, not necessarily by the person making the claim, but has to be so enjoyed by a full period of 40 years.

Ms. Crosby affirmed that Section 51 of the Land Titles Act specifically excludes Section 31 of the Real Property Limitations Act as of the date Mr. Grinnell’s property was placed into Land Titles (the PIN creation date) which was November 19, 1999. Ms. Crosby said that the evidence shows that Mr. Grinnell first moved to the property in 1981 and then purchased same in 1984. In 1984, Mr. Grinnell built up the stone roadway across the watercourse thereby converting the stone roadway into a dam. Ms. Crosby concluded that Mr. Grinnell cannot claim prescriptive rights for the dam because he does not meet the 20 year requirement, even if you go back to 1981.

Ms. Crosby stated that Mr. Grinnell has to also show that the use was enjoyed for a full 40 years. Ms. Crosby argued that while the aerial photographs appear to show the existence of the road for some time, there was no evidence that anybody used the road or used it in a way that Mr. Grinnell used it. Ms. Crosby concluded that absence of such evidence leaves only Mr. Grinnell’s self serving evidence, which does not satisfy Section 31 with respect to the 40 years; certainly it was not enjoyed as a dam for 40 years.

Ms. Crosby pointed out that this matter deals with common law and riparian rights relating to a natural watercourse. She said Mr. Grinnell created an artificial blockage in the natural watercourse and there have been many complaints from his neighbours over an extended period of at least 15 years. Ms. Crosby pointed to the case law provided by Ms. Sinclair in her letter of November 5, 1998 which indicates that the court remedies would be the issuance of a mandatory injunction to remove the blockage and damages. She said that those remedies were not satisfactory to the affected landowners because they require drainage so that their land can be used and enjoyed in the same manner that it was when they purchased it. Ms. Crosby stressed that Mr. Grinnell has adversely affected the use and enjoyment of his neighbours’ land by changing the stone road to a dam. She pointed to the evidence from Mr. Campbell, Mr. Desjardins and Ms. McCarthy who not only lost use and enjoyment of their land, but also incurred financial losses and emotional distress since 1985. She said that Mr. Campbell, Mr. Desjardins and Ms. McCarthy were fully aware of their assessments of $19,536, $34,487 and $21,739 and they supported the Report.

Ms. Crosby alleged that Mr. Moore’s interpretation of Clause 48(1) (a) is flawed. She noted that the definition of “benefit” in the Drainage Act is not limited to quantitative financial benefits only; it also refers to “…higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantage relating to the betterment of lands, roads, buildings or other structures.”

With respect to Mr. Graham’s evidence that the land within the basin is not suitable for agriculture, Ms. Crosby pointed to the evidence from the landowners that they were using their land for agriculture.

Findings

Appellant – Herbert and Marlene Campbell

Section 54(1) Appeal of assessment “…from the decision of the court of revision…”

Mr. Campbell’s appeal to reduce his affected area and corresponding assessment was unopposed and was supported by the Engineer. Accordingly, the Tribunal will order a reduction in Mr. Campbell’s affected area and assessment with a corresponding increase in assessment to the all the other assessed parties.

Appellant – Douglas and Elaine Grinnell

General Findings

This dispute had its beginnings in 1984 when the Appellant, Mr. Grinnell, by his own admission, built up the roadway crossing of the natural watercourse on his property because he wanted more water for duck hunting and a wider crossing. The Tribunal was not swayed by the evidence from Mr. Grinnell or by the pre-1983 aerial photographs that the roadway acted as a dam prior to being raised by Mr. Grinnell. However, there is abundant evidence that the road acted as a dam after it was raised in 1984. The evidence shows that Mr. Grinnell built the dam without the knowledge or consent of neither the authorities nor the neighbouring landowners and that the dam has adversely affected the upstream landowners. Accordingly, the Tribunal finds that the dam constructed by Mr. Grinnell in 1984 was a clear violation of common law respecting water courses.

The evidence also shows that despite ongoing complaints from his neighbours as well as the involvement of the Municipality, RVCA and MNR, no legal action and no charges were laid, and the dam remains in place today. In addition to aggravating and adversely affecting upstream neighbours, over the years, the backup of water from Mr. Grinnell’s dam also enhanced and expanded the existing fish and bird habitat, including the creation of a heron rookery. The abundance of flourishing bird population, including herons, was evident on the video shown by Mr. Moore at the hearing. Complicating matters further, the Municipality later enshrined the basin as a regionally significant natural environment area in their Official Plan.

The Tribunal finds that, by the time the Petition for drainage was filed in 2005, which led up to the preparation of the Report and this hearing, the dispute had snowballed into a complex state of affairs. Up to a few years after it was built, it may have been possible for Mr. Grinnell to remove the dam and reinstate the crossing to its pre-1984 condition, without significant consequences. However, the viability of simply removing the dam faded over time as the basin’s natural features and enhanced fish and wildlife habitat became increasingly apparent. This, in turn, contributed to a significant effort to design, seek approvals for and implement extensive mitigation measures to protect the fish and bird wildlife, including the heron rookery, in order to move forward with the drainage works under the Drainage Act.

Mr. Moore argued that Mr. Grinnell has acquired prescriptive rights in the form of an easement, as described by Donald Good in his evidence. Ms. Crosby argued that Mr. Grinnell has not acquired these rights as a result of their property being transferred into the Land Titles system. There was no evidence to suggest that the prescriptive rights claimed by Mr. Grinnell are defined in any deed or other document of title, and are not noted or recognized on the Parcel Register for the Appellants’ property. Neither Mr. Grinnell nor the adjacent property owners affected by the flooding have applied to the Superior Court of Justice of Ontario to seek a determination of these rights.

The jurisdiction to determine property and prescriptive rights rests exclusively with the Superior Court of Justice of Ontario pursuant to Sections 97 and 100 of the Courts of Justice Act, and on a limited basis with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.

The Tribunal is a creature of statute that has no inherent jurisdiction or authority. In this appeal, the Tribunal draws its jurisdiction and authority from the Drainage Act. As stated by the Supreme Court of Canada in the decision of Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 29:

Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q c. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21.

Therefore, in the absence of a decision of the Superior Court of Justice determining the prescriptive rights claimed by Mr. Grinnell, or in the absence of a Parcel Register and title documents which recognize these rights, the Tribunal has no jurisdiction to determine whether the appellant has acquired a prescriptive right.

Mr. Moore presented evidence and argued that some of the proceedings before and after the preparation of the Report, as well as some aspects of the Report itself, do not comply with the requirements of the Drainage Act. The Tribunal considered this evidence only with respect to the matters over which it has jurisdiction, noting that some of the issues raised by Mr. Moore, such as the validity of the Petition, the resolution of Council and the provisional by-law, are within the jurisdiction of the Drainage Referee.

Section 48(1) (a) “…the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof”

Mr. Moore argued that the Report should be set aside because the benefits to be derived from the drainage works are not commensurate with the estimated costs.

The Tribunal does not accept Mr. Moore’s argument that the Engineer should have prepared a benefit cost statement, regardless of whether or not such statement was requested under Section 7 of the Act. The Act specifically defines a “benefit cost statement” as “a statement relating to the anticipated benefits expressed in dollars to the total estimated cost of the drainage works”. The request for a benefit cost statement under Section 7 takes place before the Municipality has decided to proceed with the project and an Engineer is appointed under Section 8 of the Act. There is nothing in the Act that requires the Engineer to prepare a benefit cost statement and/or to include it in the Report. That is not to say that the Engineer can ignore Section 40 of the Act which states; “Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the Engineer shall forthwith file with the clerk of the initiating municipality a report to that effect…” However, Mr. Robinson’s testimony is that he did not find the works to be not required or impractical.

The Tribunal also does not accept Mr. Moore’s argument that the Report fails to comply with Section 48(1) (a) on the grounds that the Report does not contain any quantitative or dollar amount assessment of the benefits to be derived from the costs. The definition of “benefit” in the Act which is referenced in Section 48(1) (a), as Ms. Crosby pointed out, refers to a much broader range of benefits including “…higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantage relating to the betterment of lands, roads, buildings or other structures”. The only dollar amount assessment of the benefits required by the Act, are those contained in the schedule of assessment forming part of the Report.

The Tribunal acknowledges Mr. Graham’s evidence that the lands within the basin are not considered prime agricultural land and that at least some of the soil types would not benefit from drainage. If the proposed drainage works were being proposed strictly to improve agricultural lands as argued by Mr. Moore, the Tribunal might have been swayed that the benefits are not commensurate with the costs. However, in view of all the evidence, the Tribunal finds that the purpose of the Report goes well beyond the improvement of agriculture. The Tribunal accepts Mr. Robinson’s testimony that in hindsight, it would have been more appropriate to have used the words “rural drainage” instead of “agricultural drainage” throughout his Report, and that those words should have carried through to the administrative report to Council as well.

Mr. Moore argued that the proposed drainage works will actually be a detriment or negative benefit because they will take away from valuable wetlands in the basin and suggested that if no work is done, the herons and fish will continue to exist and there would be no construction cost. The Tribunal finds that since there was a valid Petition, the “do nothing option” would not satisfy the requirements of the Act.

Mr. Moore alleged that in addition to Mr. Grinnell’s special assessment, the Municipality also purposely took on costs to ensure that the petitioning landowners would not withdraw their names from the Petition. However, Mr. Grinnell did not produce any evidence to support his allegation.

The Tribunal has considered Mr. Somers’ evidence suggesting that the Report drastically underestimates the costs of the heron rookery and Mr. Grinnell’s culvert. Mr. Moore argued that the increased costs will make the benefits even less commensurate with the costs. Mr. Somers evidence is that he contacted two local contractors to obtain budgetary estimates for this work and prepared his cost estimate based on that. Neither of the two contractors were named or called to give evidence at the hearing, therefore, the Tribunal does not give much weight to Mr. Somers’ hearsay evidence. On the other hand, Mr. Robinson testified that he prepared his cost estimates based on contract information from other projects and from the Municipality’s construction cost data base compiled from contract prices on past projects. The Tribunal finds Mr. Robinson’s evidence more reliable than that of Mr. Somers on this point.

The Tribunal considered the $504,000 price tag for this project to drain less than 300 hectares which, at first glance, appears to be unusually high. However, a closer look reveals that $236,000 of the cost is for environmental and fisheries mitigation while $268,000 is for routine drainage construction (including routine engineering administration, allowances and carrying costs). Based on Mr. Henderson’s uncontested testimony, the watershed for this project is unusual because it is designated as a natural features area of regional significance that benefits the entire regional community, not just the local landowners. The Tribunal was swayed by Mr. Henderson’s argument and finds that the benefits to be derived from the drainage works extend beyond the assessed landowners to the entire regional community.

Finally, the Tribunal notes that while Mr. Moore raised multiple arguments and allegations, he did not put into evidence any cost benefit analysis to substantiate his allegations and arguments.

Section 48(1) (b) “…the drainage works should be modified on grounds to be stated”

Mr. Moore argued that the Tribunal should set the Report aside and order that the Engineer pursue a less costly alternate solution that involves lowering Mr. Grinnell’s dam, instead of installing culverts through it. Mr. Robinson testified that the option of lowering the dam was rejected by both the landowners and the approving agencies. Accordingly, the Tribunal finds no basis to set aside the Report in favour of the alternative solution.

Mr. Moore expressed concern with regard to how the whole project was initiated, reviewed, processed, analyzed, marketed, repackaged, remarketed and sold based upon fairly significant inaccuracies. Overall, while the Tribunal finds that there were indeed some erroneous statements in the Drainage Report, none of these errors were serious as to affect the intent and purpose of the Report. The Tribunal also finds that there were indeed a few erroneous statements in the administrative report to Council for the Municipality and in the preamble to the by-law, some of which carried through from the Report. The Tribunal is satisfied with Ms. Crosby’s undertaking to correct the errors in the administrative report and by-law prior to being submitted to the Municipal Council in preparation for final passage of the by-law.

The Tribunal’s findings with respect to other arguments and allegations made by Mr. Moore are provided below.

• Allegation that the Engineer did not act independently and allowed himself to be influenced by the petitioners, contrary to Sections 11 and 40 of the Act. The Tribunal finds no merit in Mr. Moore’s argument that the Engineer was influenced by the petitioners or any other party in the preparation of his Report.
• Allegation that the Engineer failed to deal with the impact of the proposed works on the clear existence of Mr. Grinnell’s prescriptive rights to the dam. The Tribunal finds that it is unreasonable to expect the Engineer to have dealt with the issue of prescriptive rights under the Real Property Limitations Act and the Land Titles Act during the preparation of his Report.
• Allegation that the Engineer’s measurements of the dam and water level as well as his depiction of the existing dam on his drawings are inaccurate. While the Tribunal is concerned with the significant differences in the measurements taken by Mr. Grinnell versus those of the Engineer, it will not set aside the Report on this basis for the following reasons:
  • Mr. Grinnell’s measurements were taken in 2012 while the Engineer’s measurements were taken six years earlier in 2006. There was nothing put into evidence to indicate what changes may have taken place during the six year intervening period, including natural erosion and/or sedimentation;
  • Mr. Grinnell did not reference his elevations to a datum forming part of the Engineer’s drawings. Through Mr. Somers, Mr. Moore made an attempt to reference Mr. Grinnell’s elevations to the Engineer’s datum by referring to the contour map attached to Mr. Somers’ report. The Tribunal has great difficulty with this because the level of accuracy of the contours on Mr. Somers small scale map comes into question, particularly in view of Mr. Somers evidence that the contours were compiled from aerial mapping and not taken on the ground.
  • At the insistence of Mr. Moore, Mr. Robinson put into evidence the detailed notes and survey information taken by his staff during the survey. Despite exhaustive cross examination, the Tribunal finds that Mr. Moore failed to identify any flaws in the Engineer’s survey notes and details.
  • Mr. Moore cross-examined the Engineer extensively on the erroneous depiction of the existing dam on his drawings. Although the Engineer conceded that the cross-section of the road over the existing dam was not flat as depicted on the drawing, he testified that the drawing was accurate for the purpose of which it was intended, that is to show the new construction. The Tribunal finds that the Engineer’s failure to show the precise configuration of the existing dam on the drawings bears no relevance to the matters to be decided at this hearing.
• Allegation that the Engineer did not comply with the Guideline for Services of the Engineer Under the Drainage Act 1998 published by the Association of Professional Engineers of Ontario. The Tribunal finds that the Engineer complied with the general requirements of the Drainage Act in preparing his Report. The Guideline is intended to guide the Engineer and does not form part of the Drainage Act.
• Allegation that the Engineer’s cost estimates for the construction of the heron rookery and Mr. Grinnell’s culvert are drastically low. The Tribunal does not place much weight on Mr. Somers’ evidence in this regard for the reasons stated in the previous section.
• Allegations that the administrative report to the Municipal Council contained an erroneous reference to the David Adams Award Ditch constructed in the 1800’s, leading Council to believe they were approving additional work to an existing award ditch. The Tribunal provided some findings on this matter in the previous section. There was no clear evidence to suggest that the reference to an Award Ditch, instead of a natural watercourse, swayed the Municipal Council in favour of supporting the project.

Section 48(1) (c) “…the compensation or allowances provided by the engineer are inadequate…”

As noted above, the evidence shows that the backup of water from Mr. Grinnell’s dam enhanced and expanded the fish and heron habitats, including the creation of a heron rookery as they exist today. The fish and heron mitigation measures to be implemented as part of the Engineer’s Report are intended to preserve and protect those habitats while at the same time allowing for drainage of upstream lands. Although the fish and heron mitigation measures will result in a reconfiguration of flooded areas on Mr. Grinnell’s lands, there was no evidence to suggest that the measures will expand the currently flooded areas. Accordingly, the Tribunal finds no basis for awarding an allowance to Mr. Grinnell for the fish and heron mitigation measures.

Section 54(1) Appeal of assessment “…from the decision of the court of revision…”

The Tribunal does not accept Mr. Moore’s argument that Mr. Grinnell’s twin culverts are not a special benefit to Mr. Grinnell on the grounds that the definition of special benefit is for special work or feature “that has no effect on the functioning of the drainage works”. Mr. Moore argued that if Mr. Grinnell’s twin culverts are not installed through the dam, the drain will not work, hence they cannot be said to have no effect on the drainage works. The Tribunal finds no merit in this argument because the construction of the dam by Mr. Grinnell has been found by the Tribunal to be in clear violation of common law respecting water courses. (See General Findings above.)

The Engineer’s evidence is that he assessed a special benefit to the respective landowners for 100% of the cost of culverts where no access across the watercourse currently exists, including Mr. Grinnell’s twin culvert crossing at the dam location. The Tribunal finds that the Engineer’s application of special benefit assessments for new culvert crossings is in compliance with the Drainage Act and accepted practice. However, the evidence is that Mr. Grinnell’s laneway crossing of the natural watercourse has existed for a long time and therefore cannot be classified as a new crossing. Unlike the other private landowner culverts, Mr. Grinnell’s twin culverts as proposed by the Engineer’s Report are, in fact, a modification and improvement of an existing crossing. As such, the Tribunal finds that the upstream landowners, whose water drains through Mr. Grinnell’s proposed twin culverts, should be assessed a portion of the cost of those culverts to account for the value of Mr. Grinnell’s pre-existing crossing.

The Tribunal notes that all the private landowner culverts proposed by the Engineer’s Report will have a standard length of 9 metres while Mr. Grinnell’s culverts will have an extended length of 30 metres. There was no evidence provided at the hearing and there is no information in the Report to explain why Mr. Grinnell’s culverts are substantially longer than the others. The Engineer’s estimate for Mr. Grinnell’s 1200 mm diameter twin culverts is $27,750 which is more than three times the $7,225 estimated cost of the standard 9 metre length twin culverts of the same diameter. The Tribunal finds that the cost of extending the culvert beyond the standard length is assessable as a special benefit to Mr. Grinnell’s property. However, to account for the value of Mr. Grinnell’s pre-existing crossing, the Tribunal will order that approximately 30% ($2,200) of the estimated cost of standard length twin culverts be assessed to upstream lands and roads.

The evidence as to whether the heron rookery was an intended or an unintended consequence of the construction of the dam by Mr. Grinnell in 1984 was inconclusive. Regardless, the heron rookery was artificially created and now requires regulatory and costly mitigation measures to protect because, according to the evidence, the rookery is recognized by the Municipality, RVCA and other authorities as being regionally significant.

The Tribunal accepts the Engineer’s evidence that the heron rookery was artificially created by the construction of the dam. Although the Tribunal understands the Engineer’s rationale in assessing the $16,000 cost of the rookery mitigation measures as a special benefit to Mr. Grinnell to hold him accountable for artificially creating the rookery, the Tribunal does not accept this justification as no special benefit would be derived by Mr. Grinnell from the rookery.

Notwithstanding that the heron rookery was artificially created by Mr. Grinnell’s actions and that it now requires costly mitigation measures to protect, the evidence is that the rookery is a desirable natural feature that is recognized by the Municipality and other authorities as a being regionally significant. As such, the Tribunal accepts Mr. Moore’s argument, supported by the evidence from Mr. Henderson, that the cost of the heron rookery mitigation measures fall into the same category as the fish mitigation measures.

Accordingly, the Tribunal will order that the cost of the heron rookery mitigation measures be added to the Municipality’s special assessment.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeals by Grinnell G Douglas & Kelly-Grinnell R Elaine (Roll No. 18282-504000-0000) under Section 48 of the Drainage Act are denied.
2. The modified Summary Schedule of Assessment appended hereto as Schedule ‘A” shall replace the Schedule of Assessment contained in the Report. The modifications included in Schedule ‘A’ are described below:
   1. The affected area and assessments for Campbell Marlene Gladys & Campbell Herbert J.) (Roll No. 18282-504200-0000) have been modified as follows: i. affected area reduced from 27.24 hectares to 25.04 hectares; ii. assessment for benefit reduced from $2,061.13 to $1,917 with the corresponding increase assessed to the all other lands and roads ; and, iii. assessment for outlet reduced from $10,249.84 to $9,602 with the corresponding increase assessed to all the other lands and roads.
   2. The special benefit assessments to Grinnell G Douglas & Kelly-Grinnell R Elaine (Roll No. 18282-504000-0000) have been modified as follows: i. special benefit assessment for culverts reduced from $27,750 to $25,550 with the corresponding increase assessed to upstream landowners; and, ii. special benefit assessment for heron rookery mitigation measures reduced from $16,000 to $0.00 with the corresponding increase added to the special assessment to the Municipality.
3. The non-administrative costs of the Municipality in respect of this appeal shall form part of the cost 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.

Dated at Ottawa, Ontario this 19th day of July, 2012

Schedule 'A'

David Adams Municipal Drain

Schedule of Assessment

Roll No.	Owner(s)	Area (Ha)	Benefit S1	Benefit S2	Benefit Total	Outlet S1	Outlet S2	Outlet Total	Special Benefit	Total
18282-503000	Schellings Mark Antonius	3.64	$279		$279	$862		$862		$1,140
18282-504000	Grinnell G Douglas & Kelly-Grinnell R Elaine	21.88	1,675		1,675	4,847		4,847	25,550	32,073
18282-504100	Hope Julie Nan	6.65				1,913		1,913		1,913
18282-504200	Campbell Marlene Gladys & Campbell Herbert J	25.04	1,917		1,917	9,602		9,602	7,225	18,745
18282-504500	Villeneuve Shawn	0.17				108		108		108
18282-504600	Nixon Lauralee Ellen & Nixon Jeffrey Walker	17.23	1,319		1,319	7,103		7,103	7,225	15,647
18282-504700	Schaubs Gerhard	19.93	1,526		1,526	8,770		8,770		10,296
18282-504800	Wilson John Bell & Wilson Sandra Diane	41.68	3,191		3,191	18,090		18,090	7,225	28,507
18282-504900	Armstrong Cheryl Lynn	2.76				1,002		1,002		1,002
18282-504905	Henderson John David & Hall Philippa Grace	4.70				2,151		2,151		2,151
18282-504906	Bradford Harold James & Bradford Linda Carol	7.77				4,571		4,571		4,571
18282-505000	Desjardins Paul	50.38	3,858		3,858	26,345		26,345	4,825	35,027
18282-505100	J. Schellings Ltd.	1.15		80	80	835	438	1,273		1,354
18282-505200	Adams David	39.70		2,769	2,769	18,451	13,863	32,314		35,083
18282-505201	Deschamps Ernest Florence & Todd-Deschamps Shirley	1.00				450	381	831		831
18282-505202	Tweedie Scott William & Tweedie Elizabeth	1.11				500	423	923		923
18282-505203	Studholme Kimberly Ann & Studholme Linda Mary	0.46				200	175	376		376
18282-505204	Campbell Gina Maria & Campbell James Roger	1.01				470	385	854		854
18282-505205	Casey Marlene & Casey Michael	1.00				479	381	860		860
18282-505209	Klatt Scott	1.35				981	648	1,629		1,629
18282-505210	Baldwin Raymond	1.35				981	565	1,546		1,546
18282-505211	Ryan Peter & Ryan Diana Joan Dakers	1.35				981	751	1,731		1,731
18282-505400	Parsons Mary & Parsons Basil	22.62		1,578	1,578	7,393	15,167	22,560		24,138
18282-505600	McCarthy Lambert & McCarthy Monica	15.66		1,092	1,092	3,753	17,176	20,929		22,021
18282-506000	Rasa Arnolds & Rasa Antonia	2.73		190	190	595	3,152	3,747		3,937
City of Ottawa Roads/Other	Carsonby Road	2.50	337	391	728	5,159	1,558	6,717	12,000	19,445
	First Line Road	1.70				1,877	533	2,410		2,410
City of Ottawa	- Special Assessment								235,682	235,682
Totals		296.52	14,103	6,101	20,204	128,468	55,597	184,064	64,050	$504,000