Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: appeals.tribunal.omafra@ontario.ca

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

1, chemin Stone Ouest

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Kershaw Drain

Municipality of Southwest Middlesex

Kershaw Drain (RE) 2012 ONAFRAAT 29

STATUTE:

Drainage Act

HEARING:

September 20, 2012

DATE OF DECISION:

September 28, 2012

2012-29

NEUTRAL CITATION:

2012 ONAFRAAT 29

KERSHAW DRAIN

Municipality of Southwest Middlesex

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Rein Minnema (Minnema Farms Ltd.), of Glencoe, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Kershaw Drain in the Municipality of Southwest Middlesex.

Before: Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Tim Mousseau, Member

Appearances:

Rein Minnema – Appellant

R.O. (Ray) Dobbin, R. Dobbin Engineering Inc. – Engineer who prepared the Report

Elizabeth Jeffery – Drainage Superintendent for the Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers, Municipality of Southwest Middlesex, (the Municipality) in Glencoe, Ontario on September 20, 2012. Rein Minnema (Minnema Farms Ltd.) (the Appellant) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from a decision of the Court of Revision held on April 25, 2012 on the Engineer’s Report titled Kershaw Drain (the Drain) dated February 23, 2012 (the Report), prepared by R. Dobbin Engineering Inc. and signed by R.O. (Ray) Dobbin, P.Eng. (the Engineer)

Janneke Newitt, Administrator/Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Background

The Kershaw Drain is comprised of an open channel located on Lots 6 to 14, Concessions Range 1 and 2 N.L.R and Concessions 1 and 2 in the Municipality of Southwest Middlesex. The Report was prepared pursuant to Section 78 of the Act in response to a request for improvements to the downstream section of the drain by the Appellant, Mr. Rein Minnema (Minnema Farms Ltd.), owner of the north part of Lot 13, Concession Range 1 N.L.R. The work proposed by the Report is for the most part, located on Mr. Minnema’s property and includes a realignment of the drain, a downstream extension of the drain, channel improvements, erosion protection and tile repairs. The estimated cost of the project is $53,062 which has been assessed to the affected lands and roads within the watershed.

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 Clerk of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with a notice of hearing.

Issue

Should the Appellant’s assessment be reduced?

Evidence

Ray Dobbin - Engineer who prepared the Report

Mr. Dobbin gave evidence with respect to the chronology of events leading up to this hearing. He testified that the project was started in 2010 when Mr. Minnema requested that the open channel of the drain on his property in Lot 13, Concession Range 1 N.L.R. be improved and extended downstream. He said that following his appointment by Council to prepare a report, he conducted a site meeting on April 22, 2010.

Mr. Dobbin testified that he prepared a preliminary report dated July 15, 2011 which was considered by Council on August 31, 2011. He stated that his preliminary report contained two options for improving and extending the drain downstream: the first option was to improve the channel along its existing alignment while the second option provided for a realignment of a portion of the channel. The estimated costs of the two options were $36,490 and $45,807 respectively. Mr. Dobbin explained that pursuant to Mr. Minnema’s input, Council instructed him to prepare a final report based on the second option, providing for the realignment of the channel.

Mr. Dobbin said that he prepared his final Report dated February 23, 2012, based on the drain realignment option and that he estimated the cost of the proposed works to be $53,062, including engineering and allowances under Sections 29 and 30 of the Act. He added that, except for a short downstream drain extension, all of the work proposed by the Report is located on Mr. Minnema’s property in Lot 13, Concession Range 1 N.L.R.

Mr. Dobbin testified that the final Report was considered and adopted by Council on March 28, 2012 and the Court of Revision was held on April 25, 2012.

Mr. Dobbin put into evidence an itemized project cost estimate sheet, an assessment category breakdown sheet, as well as, detailed calculation sheets (8 pages) to explain his rationale and calculations that he used to determine the schedule of assessment forming part of his Report. He said that he separated that project cost into four categories and assessed the costs as follows:

1. The $18,367 cost for erosion protection required along the length of the channel due to flow from upstream was assessed as outlet to upstream properties;
2. The $4,975 cost of two tile outlet replacements and associated erosion protection was assessed to the benefiting property and/or as outlet to those properties that use the tile as an outlet;
3. The $15,485 cost of channel improvements were assessed $8,827 (57%) as benefit to the adjoining properties and $6,658 (43%) as outlet to upstream properties based on equivalent areas. The benefit was assigned to lands owned by Mr. Minnema and Mr. Smith (landowner downstream of Mr. Minnema) in the amounts of $7,961 and $866 respectively.
4. The $14,273 cost of channel realignment, including erosion protection and tile extensions, less the $1,096 cost of the improvements to the existing channel, (net cost of $13,177), was assessed as a special benefit to Mr. Minnema’s property.

Mr. Dobbin explained that the resulting assessments to the properties owned by Mr. Minnema (Minnema Farms Ltd.) are shown in the Schedule of Assessment forming part of his Report. A summary of Mr. Minnema’s assessments are provided below:

Conc.

Lot

Area (Ha.)

Roll No.

Special Benefit

Benefit

Outlet

Total

Range 1 NLR

Npt L11

40.47

20-091

$803.00

$803.00

Npt L12

40.07

20-092

795.00

795.00

Npt L13

18.9

20-093

13,177.00

7,961.00

375.00

21,513.00

Range 2 NLR

Spt L11

46.13

20-106

915.00

915.00

Gore

pt L13

6.8

20-094

614.00

614.00

Total Assessments to Minnema Farms Ltd.

$13,177.00

$7,961.00

$3,502.00

$24,640.00

Mr. Dobbin further put into evidence a letter dated January 26, 2012 from the Lower Thames Valley Conservation Authority (LTVCA) describing their requirements for fish mitigation which he said increased the cost of the project. Mr. Dobbin also put into evidence three aerial photographs showing Mr. Minnema’s property on Lot 13, Concession Range 1 NLR at the location of the proposed drain realignment. Referring to the photographs, he pointed out that the existing drain channel is located very close to two manure pits and that the realignment will move the drain away from those pits. While the main reason for the drain realignment was to lessen erosion in the channel, he noted that the relocation will also reduce the environmental risk associated with the proximity of the manure pits to the existing drain channel.

Mr. Dobbin went on to testify that he believes that the special benefit assessment that he assigned to Mr. Minnema’s lands for the realignment of the channel was very fair, and could easily have been higher. For example, he said that he would have been justified in assessing some of the cost of erosion protection and fish mitigation measures to Mr. Minnema, but instead he assessed it entirely to the upstream landowners. Accordingly, he asked the Tribunal to award costs to the Municipality to cover his engineering fees for preparation and attendance at this hearing, which he estimated will be between $1,800 and $2,000.

Mr. Rein Minnema - Appellant

Mr. Minnema stated that the assessment imposed on him by the Engineer “hit him pretty hard”. He testified that he consulted several contractors seven or eight years ago on the cost to realign the drain on his property and concluded that he could have done the work privately for a lot less. However, he said that he no longer had the information or quotes from those contractors.

Mr. Minnema noted that he was not the only landowner that preferred the realignment of the drain option. He said that some of the other landowners also preferred the realignment and therefore should help to pay for it.

Mr. Minnema testified that about four years ago he had a realignment of the same drain channel done on one of his upstream properties. He remarked that the earlier project was much cheaper and he was pleased with how it turned out. Responding to questions from the Tribunal, he said that he was confident that the current drain realignment will also turn out well but he said the assessment is too high.

The Tribunal reminded Mr. Minnema that the Report provides his properties total allowances of $5,505. Also, since his properties are used for agriculture, the assessments will likely qualify for a 1/3 provincial grant. The allowances and grants will significantly reduce his net cost to just over $10,000. Mr. Minnema was still unsatisfied with this cost.

The Tribunal asked Mr. Minnema to quantify the reduction in assessment that he was requesting, however, his response was simply that he was paying too much.

Findings

Appeal by Rein Minnema

The Tribunal has reviewed the Report, as well as, the Engineer’s evidence, including his assessment rationale and detailed calculations, particularly those pertaining to the properties belonging to the Appellant, and finds same to be fair and reasonable, as well as, compliant with the requirements of the Drainage Act.

Mr. Minnema made no assertion to suggest that the Engineer’s assessment rationale was flawed or that there was an error in the Engineer’s assessment calculations.

Mr. Minnema based his conclusion that he could have the work done privately for much less on quotes which he said he obtained from contractors seven or eight years ago. The Tribunal has great difficulty in accepting Mr. Minnema’s evidence with respect to the contractor quotes since Mr. Minnema was neither able to produce the quotes nor provide any details whatsoever. In any case, Mr. Minnema’s suggestion of doing the work privately for less cost is a moot point since work on municipal drains cannot be carried out privately; rather, it must be undertaken in a public and transparent manner pursuant to regulations under the Drainage Act.

Mr. Minnema claimed that similar upstream work completed four years ago on one of his upstream properties was done for much less and he was very happy with that result; however, he did not state what the actual cost was. Furthermore, he did not correlate that project with the current one in terms of existing site conditions, drain size, length of the realignment, proximity of buildings or structures, extent of erosion protection required, fisheries mitigation, number of tiles etc.

Mr. Minnema’s reasoning that other landowners on the drain should accept a share of his special benefit assessment on the basis that they also preferred a realignment of the channel, is flawed. The channel realignment is located entirely on Mr. Minnema’s property, and as such, only his lands receive a special benefit.

The Tribunal accepts the Engineer’s evidence that the realignment of the drain will also benefit Mr. Minnema’s property by reducing the environmental risk associated with the proximity of the manure pits to the existing drain, which provides added justification for the special benefit assessments.

In general, Mr. Minnema failed to provide any credible evidence or make any reasonable arguments to support his appeal. Accordingly, the Tribunal will deny the appeal.

Engineer’s Request for Costs

The Tribunal’s jurisdiction to award costs flows from Sections 98(10) and (11) of the Act which gives the Tribunal wide discretion to determine the costs of "any proceedings" under the Act, regardless if a party requests it or not, "as the Tribunal considers proper". Additional jurisdiction flows from Section 17.1 of the Statutory Powers Procedure Act and is guided by the Tribunal’s Rules of Procedure. Rule 28.02 provides that the “Tribunal may make a costs award for conduct at any time during a proceeding.” Rule 28.04 defines bad conduct as "clearly unreasonable, frivolous or bad faith conduct”.

While the evidence and arguments presented by Mr. Minnema lacked substance, the Tribunal cannot conclude that his conduct was “clearly unreasonable”, “frivolous” or in “bad-faith”. Accordingly, the Tribunal will not award costs to the Municipality as requested by the Engineer.

ORDER OF THE TRIBUNAL

The Tribunal Orders as follows:

1. The appeal by Rein Minnema (Minnema Farms Ltd.) is denied.

2. 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.