Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/english/tribunal
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/french/tribunal
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Pike Creek Drain (Sood Property) Town of Lakeshore
Pike Creek (RE) 2013ONAFRAAT 13
STATUTE:
Drainage Act
HEARING:
July 9, 2013
DATE OF DECISION:
September 30, 2013
2013-13
NEUTRAL CITATION:
2013 ONAFRAAT 13
PIKE CREEK DRAIN (Sood Property) Town of Lakeshore
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 Survashi Sood, of Maidstone, Ontario under Sections 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision on the Pike Creek Drain (Sood Property) in the Town of Lakeshore.
Before:
Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Doug Flook, Member
Appearances:
Survashi Sood – Appellant
Ashok Sood – Spouse of the Appellant
Danny Branoff – Representative for the Appellant
David Johnson, P. Eng. - Johnson Engineering Consultants Inc.
Erik Runge – Witness for Appellant
George Turnball – Witness for Appellant
Tom Marentette, P.Eng. – Dillon Consulting Limited, Engineer who prepared the Report
Henry Dielemans, P. Eng. – Golder and Associates Ltd.
Tim Byrne – Essex Region Conservation Authority
Jill Fiorito – Drainage Superintendent for the Town of Lakeshore
Jim Renick – Counsel for Municipality
John Bushnell – Landowner
Francis Fournier - Landowner
DECISION OF THE TRIBUNAL
This hearing was held in the Town of Lakeshore (the“Municipality”), in Belle River, Ontario on July 9, 2013. The Engineer’s Report dated May 9, 2012 for the Pike Creek Drain Sood Property (the “Report”) was prepared by Dillon Consulting Limited (the “Engineer”) and signed by Tom Marentette, P. Eng.. The appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) was filed by Survashi Sood who was represented by her spouse Ashok Sood and Danny Branoff, the representative for the Soods (“Appellant” or the “Soods”).
Mary Masse, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.
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 Further Rescheduling of Hearing dated June 6, 2013.
Prior to the start of the hearing originally scheduled for May 21, 2013, the Appellant objected to one of the Vice-Chairs appointed to the Panel due to the disclosure of a prior relationship with Dillon Consulting Limited. The Tribunal issued a preliminary decision adjourning the hearing to July 9, 2013 and appointed another Vice-Chair to the Panel.
Background
The matter proceeding under the Drainage Act (the “Act”) as it relates to Pike Creek Drain was initiated when the Soods requested a repair to the embankment of Pike Creek Drain situated in the rear yard of their property located at 74 County Road 42 (“Sood Property”), under section 78 of the Act. Tom Marentette, a professional engineer representing Dillon Consulting Limited, was designated under section 8 of the Act for overall responsibility for the Report.
The entire Pike Creek Drain is an open channel approximately 13,900 metres long, drains an area of 3,480 hectares (8,600 acres), and outlets to Lake St. Clair. The section of the Pike Creek Drain subject to this Report is situated approximately 190 metres downstream of the County Road 42 bridge crossing.
Issues
Should the Report of the Engineer be upheld?
Should the assessments against the Appellant be amended?
Summary of the Decision
The Tribunal finds that the Municipality failed to provide the required thirty (30) days notice to the Essex Region Conservation Authority (“ERCA”) as required by the Drainage Act (“Act”) prior to the appointment of the engineer, and also identified numerous deficiencies with the Report. For the reasons set out in more detail below the appeal is granted and the Report set aside.
Timeline of Events
| Date | Event |
|---|---|
| Late 2011 | ERCA notified of the slide and the separation of the embankment at the rear of the Sood Property |
| January 30, 2012 | Soods request Municipality to repair embankment of Pike Creek Drain in the rear yard of their property |
| January 31, 2012 | Engineer appointed by Municipality |
| February 7, 2012 | On-site Meeting. (no minutes recorded) |
| February 8, 2012 | Visit on Sood Property with Golder and Associates Ltd.(“Golder”) and the Engineer. Record of site visit located at Schedule ‘A’ of Report |
| March 19, 2012 | Topographic survey prepared by Engineer |
| April 19, 2012 | Drainage Superintendent and Engineer meet with Mr. Sood at the site to review drawings with his contractor. Mr. Sood indicated he would review the information |
| May / June 2012 | Soods import earth fill material into the rear portion of their property along the south drain bank of the Pike Creek Drain |
| May 2012 | ERCA advised of on-going filling and grading activities at the Sood Property |
| June 15, 2012 | Engineer and Golder meet at the site to review the fill placed by the Soods |
| June 19, 2012 | Engineer re-surveys section of the drain embankment filled by the Soods after the completion of the initial survey in March 2012 |
| June 26, 2012 | Meeting with Soods, Architect for the Soods, ERCA, Municipality and Engineer at the Sood Property to discuss the work and events that had occurred since the request to repair the drain had been filed with the Municipality |
| July 9, 2012 | Golder conducts soil boring investigation on Sood property |
| August 10, 2012 | Meeting with the Municipality, Engineer and Soods to review and discuss draft report |
| September 25, 2012 | Report received by the Soods |
| November 2012 | Soods hire Mr. Turnball, a contractor, to remove fill, install drains and terraces |
| November 2012 | Mr. Turnball contacted by the Soods to investigate a hole at the back of the Sood Property. During the investigation, Mr. Turnball discovers and replaces a broken pipe leading from the original tile draining the Sood house foundation |
| November 2012 | Municipality receives notification about construction activity occurring at the Sood Property |
| Prior to December 10, 2012 | Municipality receives a call from ERCA advising that one of the neighbours in the surrounding area called about some type of activity occurring at the Sood Property. Municipality investigates call and observes dump trucks entering and exiting the Sood Property |
| December 10, 2012 | Drainage Board hearing, Soods Request for Reconsideration |
| April 8, 2013 | Mr. Johnson retained by Soods to attend at the Sood Property, review, and comment on the Report |
| June 25, 2013 | Soods request that the Municipality refer the Report back to Engineer under section 57 of the Act |
Evidence
Tom Marentette, for the Municipality
The Engineer provided an overview of the project, outlined the process under section 78 of the Act, summarized how the assessments were determined and provided a description of the watershed.
The Engineer testified that on January 30, 2012 the Municipality received a request from the Soods to repair the embankment of Pike Creek Drain in the rear yard of the Sood Property. On January 31, 2012, the Municipality accepted the request under section 78 of the Act and appointed the Engineer to prepare the drainage report.
The on-site meeting was held on February 7, 2012 as required by the Act with the Drainage Superintendent, Engineer and the Appellant to assess the erosion and bank instability that had occurred in the rear yard of the Sood Property. At that meeting, the Engineer observed that the rear yard fence was leaning and the bank had sloughed off into Pike Creek. The Engineer indicated that he was retained by the Municipality to determine the source of the erosion problem causing the degradation of the bank and to prepare an action plan to resolve the problem. Upon questioning by the Tribunal, the Engineer admitted that there were no minutes prepared for the initial on-site meeting held on February 7, 2012.
At the February 7, 2012 on-site meeting, the Engineer discussed with the Soods that the erosion problem could be expensive and difficult to repair due to the existing soil conditions and the location of the work. The Engineer observed water percolating through the bank on the Sood Property and recommended that it be investigated by the Soods. This would assist in determining the source of the water and reduce some of the costs. The Engineer testified that he had advised the Soods that he was prepared to work cooperatively.
A further meeting was held on February 8, 2012 at the Sood Property with the Engineer and Mr. Dielemans from Golder. At that meeting, the Engineer again observed water percolating from the creek bank in the area of the most severe bank failure and noted a septic system located immediately to the south and next to the west end of the residence.
The Engineer identified several action items in an attempt to investigate the cause of and resolve the bank failure occurring at the Sood Property. These action items are set out in the Record of Site Visit, dated Feb 8, 2012 and included; investigating the septic system, checking the Soods swimming pool for leaks, replacing the perforated drain tile with solid wall pipe, minimizing the use of the on-site sprinkler system, and directing surface water through collection piping. The Engineer recommended that a staged approach be undertaken to the repairs in an effort to resolve the slope instability problems at the back of the Sood Property.
The Engineer conducted a site survey and examined the Pike Creek Drain on March 19, 2012. However, due to the placement of fill material on the Sood Property on June 19, 2012, discussed in more detail below, the Engineer resurveyed the embankment. On July 9, 2012 Golder completed a geotechnical investigation of the Sood Property and based on the geotechnical analysis, the Engineer recommended that the fill material imported to the site by the Soods in June 2012 be removed and stockpiled off-site.
The Report recommended that a retaining wall be constructed to allow the drain to function as designed and to provide the Soods with slope stability in their rear yard. According to the Engineer, the retaining wall could be designed numerous ways but, in the Engineer’s opinion, the retaining wall had to be of considerable mass to provide the stability required. The Engineer recommended that the retaining wall be three blocks high resulting in a height of approximately 2.4 metres (approximately 7 – 8 feet). The Engineer further recommended that an investigation be conducted during excavation to locate and identify the source of percolating water observed during the initial site meeting, prior to the placement of the fill by the Soods.
The Engineer’s opinion was that the instability of the slope was due to a combination of the following factors: (1) the land was filled by prior owners for the purpose of raising the existing property elevations as a condition of development, which resulted in additional soil pressure on the top bank of Pike Creek Drain without consideration of long term bank stability; and, (2) an unknown source of groundwater percolating from the drain bank. The Engineer testified that, in his opinion, the bank failure was not the result of erosion from drainage flows within Pike Creek. Based on these factors, the Engineer assessed a Special Benefit Assessment for 80% of the cost against the Sood Property and the remaining 20% against the Municipality.
Ashok Sood, on behalf of the Appellant
Mr. Sood testified on behalf of his partner, Survashi Sood, (the “Soods”). Mr. Sood outlined the personal difficulties recently experienced by the Sood family relating to a fire in their company’s head office, principal warehouse and other facilities used by their company. While these events are very unfortunate, they are not relevant to, nor do they have an impact on, the appeal that is before the Tribunal.
The Soods became aware of an erosion problem occurring at the bank located at the rear of their property and on January 30, 2012 the Soods requested that the Municipality repair the embankment under section 78 of the Act.
Although Mr. Sood stated on numerous occasions that the Engineer would not meet with him on the property, he did admit to attending the February 7, 2012 on-site meeting and acknowledged that either he or his representatives participated in several other meetings. At the February 7, 2012 meeting, the Engineer advised the Soods that, in his opinion, it would be very costly, between $150,000 and $200,000 to resolve the drainage problems.
Upon questioning from the Tribunal, Mr. Sood indicated that the first time they had contacted the Municipality about the bank erosion problem was on January 30, 2012. Mr. Sood expressed frustration that the Engineer could develop an estimated cost without investigating the cause of the erosion problem. Mr. Sood testified that he requested that the Municipality keep him informed as to any costs over $5,000.
During the time that the Engineer was preparing the Report, the Soods required an appraisal of their property in order to obtain a second mortgage. The Soods were concerned that the existence of the erosion problem occurring in the rear yard would jeopardize their ability to obtain and acquire mortgaging on the property. In an attempt to fix the erosion problems, the Soods, without any prior discussion with the Municipality, Engineer, or ERCA, hauled in fill from an outside source, to backfill the area.
In or around June 19, 2012, representatives from the Municipality attended at the Sood Property and requested that the fill be removed. The Soods asked that the fill remain until the Municipality completed the Report and a solution was provided to resolve the erosion problems. According to Mr. Sood, the Municipality again advised him that the fill had to be removed.
In or around June 26, 2012, the Soods met with representatives from the Municipality, the Engineer, and Mr. Byrne from ERCA. At that time, the Soods were again told to remove the fill placed at the back of the property. The Soods made another request that the fill remain until the Report was completed. Upon questioning by the Tribunal, Mr. Sood admitted that, to the best of his knowledge, the fill was never tested to determine whether or not it was properly classified as “clean” fill.
While Mr. Sood testified that he did not have any one-on-one meetings with the Engineer or Golder over the past fifteen (15) months, on cross-examination and questioning by the Tribunal, Mr. Sood confirmed that he had met with the Engineer, the Municipality, and their representatives on numerous occasions.
In or around September 25, 2012, the Soods received the Report proposing the construction of a retaining wall at the back of their property. The Soods expressed serious concerns that the Report did not determine the source of the erosion. However, Mr. Sood pointed out that the Report did conclude that Pike Creek was not the cause of the erosion.
Mr. Sood testified that since the cause of the erosion had not been identified, he asked that the Municipality get a second opinion from another engineer. The Municipality refused to seek a second opinion on the erosion problems at the Sood Property. Mr. Sood expressed frustration with the entire process and the Engineer’s opinion because the Engineer failed to consider and provide any alternatives to resolve the erosion problem.
In November 2012, Mr. Sood hired a contractor, Mr. Turnball, to remove some of the fill placed at the back of the Sood Property. Mr. Turnball removed some fill, installed drains and constructed three terraces on the bank of the Sood Property. Upon completion of Mr. Turnball’s work, the Soods contacted the Municipality, the Engineer and ERCA to inspect the property. According to Mr. Sood, ERCA was not opposed to the work that had been completed. Mr. Sood acknowledged that neither the Municipality nor the Engineer approved Mr. Turnball’s work.
Mr. Sood testified that a couple of weeks before this hearing, they noticed a hole and puddle of water at the back of their property. When they investigated the source of the water, they concluded that a buried pipe was cracked and had no outlet. Mr. Sood contacted Mr. Turnball and asked that the pipe be extended to allow the water to flow out to the drain. Mr. Sood testified that both the Municipality and ERCA were advised of the work completed by Mr. Turnball.
Mr. Sood admitted to doing work on the property a total of three (3) times, confirmed that he never sought any permits, and admitted that he never contacted the Municipality or ERCA prior to engaging in any of the work. Mr. Sood testified that, in his opinion, he did not do anything wrong when he completed the work without obtaining and permits or approvals from the Municipality or ERCA.
Erik Runge, Witness for the Appellant
Erik Runge testified that he was the individual who hauled the fill onto the Sood Property and assisted Mr. Turnball with the work performed on the Sood Property in November 2012. Lakeside Trucking is owned by the Sood family and Mr. Runge stated that he has been employed by Lakeside Trucking for approximately two (2) years.
Mr. Runge testified that he diverted fill to the Sood Property from the Parkway project. Mr. Runge stated that approximately twenty (20) to twenty-five (25) truckloads of fill were brought onto the Sood Property. On cross-examination, Mr. Runge could not explain why the Municipality was advised that fifty (50) truckloads of fill were hauled to the Sood Property.
Mr. Runge indicated that in October or November 2012, he assisted Mr. Turnball with the work at the Sood Property and removed some of the fill that he placed at the rear of the Sood Property. Mr. Runge indicated that at that time he removed approximately eight (8) to fifteen (15) truckloads of fill from the Sood Property. Mr. Runge advised that nothing is moved from the Parkway project without being tested. On questioning from the Tribunal, Mr. Runge advised that he sought permission from Ameco, one of contractors for the Parkway project, to take the soil to the Sood Property as opposed to a designated landfill.
George Turnball, Witness for the Appellant
Mr. Turnball described himself as “a jack of many trades” most recently employed by Chrysler for a period of fifteen and a half years (15½) as a skilled tradesperson. Also, for last twenty-five (25) years he has operated his own business doing shoreline protection including stone rock and steel walls along the banks of Lake Erie. Mr. Turnball indicated that he has experience working along shorelines and constructing appropriate drainage measures.
Mr. Turnball testified that he was retained in or around November 2012 by Mr. Sood to repair the slope in the backyard of the Sood Property down to Pike Creek. After reviewing the Report, Mr. Turnball concluded that terracing and a french drain would resolve the problems with the slope stability. Mr. Turnball indicated that he was initially retained by the Soods to remove the surplus dirt that was sagging and to change the slope of the bank, and then felt he could resolve the problem with terracing and drainage.
Mr. Turnball testified that he excavated a considerable amount of the area including original fill that was placed at the time of, or prior to, the initial construction of the Sood residence. Mr. Turnball reconstructed the area and lightly compacted the soil with the backside of the digging bucket. Mr. Turnball also constructed drainage works consisting of stone, filter cloth and catchbasins along three different terraces sloping from west to east to allow the water runoff to enter Pike Creek.
In Mr. Turnball’s opinion, the amount of fill excavated was reasonable to alleviate the excessive sloping, while the terraces resolved some of the slumping problems. Mr. Turnball testified that the slumping problems were not as prevalent in the lower part of the slope as compared to the upper part where the loose fill was applied.
Mr. Turnball stated that he excavated a trough and placed filter cloth, clear stone and perforated pipe to drain the water to catchbasins that were connected to one of the original perforated pipes draining the eaves of the Sood house. Mr. Turnball advised that he was only able to compact the terrace areas lightly as he did not want to damage the piping located within the terraces. Mr. Turnball recommended sodding of the terraces in the early Spring 2013 to prevent runoff damage. Mr. Turnball testified that he was not aware of any request by the Municipality that the area be sodded.
In Mr. Turnball’s opinion, the terraces could withstand a normal amount of rain but due to the recent heavy rains in the area, the terraces were no longer stable. Mr. Turnball testified that he had examined the terraces approximately four (4) to five (5) weeks prior to the hearing and observed the runoff going over the terraces and eroding the bank because, in his opinion, the tile had curled up and the water could not escape.
Mr. Turnball testified that later, he was called by Mr. Sood to address a secondary problem relating to a hole that was discovered at the back of the Sood Property. With the assistance of Mr. Sood’s employees, the area was excavated and a broken pipe was discovered that led to the original tile draining the Sood house. A camera was used to explore the pipe which went approximately 67 – 68 feet from the Sood house on a downward gradient towards Pike Creek. The pipe was inappropriately backfilled and had no means of discharging so, over time, it had bubbled up through the ground. Mr. Turnball replaced the pipe with a four inch (4”) PVC pipe leading in an easterly direction towards the bank and discharging into Pike Creek. Mr. Turnball testified that, prior to engaging in the work, he did not consult with Mr. Sood’s engineer, Mr. Johnson, the Municipality, Engineer, or ERCA.
On cross examination, Mr. Turnball acknowledged that he is not an engineer by degree nor did he obtain any input from the Engineer on the work he completed. Mr. Turnball admitted that he had been provided with a copy of the Report.
Mr. Turnball indicated that at no time did he have any meetings with the Engineer or anyone from the Municipality despite acknowledging that he was aware that he was working on a municipal drain. Mr. Turnball confirmed that a municipal drain is an engineered structure that would require an engineer to maintain or do any work on the drain. However, in Mr. Turnball’s opinion, the area where he completed the work was not part of the municipal drain and he felt that he was working entirely within the Sood Property.
Mr. Turnball testified that he had received input from ERCA on the work he completed but did not obtain a permit, and that if a permit was required, it was not his responsibility to obtain the permit. In Mr. Turnball’s opinion, he only implemented a portion of the work set out in the Report by removing existing fill from the yard and grading the area so it would not slide down the embankment any further.
On questioning from the Tribunal, Mr. Turnball confirmed that he did not prepare any drawings for the work he completed nor did he have any discussions with the Municipality or ERCA.
David Johnson, P. Eng., Johnson Engineering Consultants, Witness for the Appellant
Mr. Johnson testified that he was contacted by Mr. Branoff in or around April 2013 on behalf of the Appellant to review and comment on the Report. Mr. Johnson completed a visit of the Sood Property on April 8, 2013, which was the first time he became aware of the project.
According to Mr. Johnson, on June 25, 2013, the Appellant asked the Municipality to refer the Report back to the Engineer under section 57 of the Act to avoid this hearing. Mr. Johnson testified that the purpose of the terracing and the french drains on the Sood Property was to improve the slope stability. Mr. Johnson recommended that additional improvements to the area be undertaken including: topsoil, grass and/or staked sod, and felt that a “wait and see” approach be adopted to monitor the stability of the slope. Mr. Johnson agreed with Mr. Turnball that, due to the exceptionally large amount of rainfall in the area, the work completed to date could not be properly assessed.
Mr. Johnson noted that Council accepted the request under section 78 of the Act and that the Act requires that an engineer shall not be appointed until thirty (30) days after notice is provided to each affected conservation authority. The Report states that the request from the Soods was received by the Municipality on January 30, 2012 and on January 31, 2012 the Engineer was appointed. It was Mr. Johnson’s opinion that this is a fatal flaw with the process.
According to Mr. Johnson, section 8(1)(a) of the Act requires that, at a minimum, the Report include plans, specifications and profiles. Mr. Johnson pointed out that the Report should include a full plan of the watershed to provide an understanding of the entire project. However, the Report only shows a location plan of the Sood Property. Section 8(1)(a) also requires that a Report show the specifications of the drainage work being proposed. In Mr. Johnson’s opinion, the design of the work being proposed must be completed by the Engineer responsible for preparing the Report.
Mr. Johnson noted that the Report requires that the contractor, during the excavation of the project, identify any sources of water and conduct a review of the bank failure. Mr. Johnson also expressed concern that the Report is unclear about the work to be completed.
Mr. Johnson testified that it is inappropriate for the Engineer to request that the selected contractor design, supply, and install the retaining wall set out in the Report. Mr. Johnson expressed concern that the Engineer only provided a conceptual design of the retaining wall while the detailed design work is to be completed by some other engineering office. In commenting on the retaining wall, Mr. Johnson indicated that the proposed height, of approximately 7 – 8 feet, would not be high enough to stop the flow of water and further erosion of the Sood Property over the retaining wall into Pike Creek.
Mr. Johnson acknowledged that the broken pipe leading from the house was investigated by Mr. Turnball, repaired and extended to an outlet to the Pike Creek channel. The extended drain provides drainage for the house footings and, in Mr. Johnson’s opinion, may have been the cause, or part of the cause, of the water on the slopes, causing the erosion problems.
A review of the Engineer’s drawings, specifically the cross sections under Schedule G, was completed by Mr. Johnson who noted that it identified certain stations looking east downstream, and showed the retaining wall on the left hand side of the drawings being the north side of the bank. However, the retaining wall is to be constructed on the south side of the bank along the rear of the Sood Property. Mr. Johnson indicated that the detail in the Report is inconsistent with what is expected and contains several misinterpretations.
Mr. Johnson pointed out that the Report requires that the width of the channel bottom be restored to the existing by-law profile. The most recent report relating to Pike Creek drain is dated November 24, 1968 (“1968 Report”). In the 1968 Report, the width of the channel was established and the slope of banks illustrated. Mr. Johnson testified that the Report shows numerous channel widths of 6.28 metres, 6.79 metres, 4.71 metres, and 5.71 metres among others for the 46 metres of channel length along the Sood Property, and that this information would make it difficult for the contractor to construct the wall in the manner illustrated in the Report. Upon questioning from the panel, Mr. Johnson indicated that the 1968 Report identified the bottom width of the drain as being 7 metres, which did not coincide with any of the dimensions used by the Engineer. Mr. Johnson testified that the Report is inappropriate, incomplete and that the project cannot be completed as illustrated. In addition, Mr. Johnson stated that, in his opinion, the Report does not meet the requirements of the Act.
Mr. Johnson opined that the shifting of the terracing and french drains at the back of the Sood Property were due to the unusual heavy rains and that a wait and see approach should be taken since there are no risks of flood or health impacts. In his opinion, the fresh fill eroded prematurely and the drainage of the Sood Property looks worse than actual conditions.
On cross-examination, Mr. Johnson confirmed that he was hired to investigate the Sood Property and to comment on the Report. Part of his retainer included assessing the work that had been completed on the Sood Property and determining whether or not it was acceptable. Mr. Johnson indicated that he was not asked to come up with a solution to the drainage problems and was not involved when the initial work on the Sood Property was completed. Mr. Johnson agreed that the recent heavy rainfalls likely sped up what otherwise would happen to the Sood Property.
Mr. Johnson stated that it is not acceptable for someone not to follow the provisions of the Act but that since the terracing and french drains are already constructed, it would make sense to take a wait and see approach and monitor the situation. Mr. Johnson acknowledged that the Soods made several attempts to repair the erosion problem which included the importation of fill and the use of sand bags; both of which were unsuccessful.
On cross examination, Mr. Johnson admitted that the amount of rainfall was not the entire reason of the bank problems, and that only approximately one to two wheel barrels of soil washed away.
On questioning from the Tribunal, Mr. Johnson clarified that a wait and see attitude is only part of the solution and the other part is to address the surface and apply staked sod. Mr. Johnson confirmed that he was not sure of the cause of the problem but one of the causes had to be the damaged outlet pipe from the house, which was recently repaired. Mr. Johnson agreed that fixing the outlet pipe may only be a band-aid solution and does not represent a permanent solution to the problem. In his opinion, a permanent solution would consist of improving the terracing and french drains and confirming that the water flows through the catchbasins to the outlet.
Francis Fournier, neighbouring landowner north of the Soods
Mr. Fournier expressed considerable concern about the information being provided by ERCA and testified that he had not contacted ERCA to complain of the work being completed by Mr. Sood. Mr. Fournier also expressed concerns that the retaining wall being proposed by the Engineer for the Sood Property would set a precedent for the area.
John Bushnell, neighbouring landowner south of the Soods
Mr. Bushnell stated that there is fourteen (14) kilometres of ditch and he is also concerned about setting a precedent for the area with the construction of the retaining wall. Mr. Bushnell testified that he was not provided with a copy of the Report despite the Engineer’s drawing showing a portion of the retaining wall extending onto his property for approximately ten (10) feet. Mr. Bushnell was also concerned that the Engineer had provided only one solution and could not identify why the bank failed.
Tim Byrne, ERCA
The parties agreed to allow Mr. Byrne from ERCA to testify at the start of the hearing to allow him to attend to other ERCA matters. Mr. Byrne testified that the Pike Creek Drain in the area of the Sood Property is a regulated area administered by ERCA and is a municipal drain that exists under by-law. Mr. Bryne advised that ERCA was notified of the slide and the separation of the embankment on the Sood Property late in 2011. Mr. Byrne indicated that in early 2012 he was advised that an Engineer had been appointed under the Act by the Municipality to proceed with the preparation of a Report and identify works to mitigate the slide, and to address the drainage problems on the Sood Property.
According to Mr. Byrne, in or around May 2012 he was advised of filling and grading activities occurring on the Sood Property. Mr. Bryne testified that he attended a meeting with Mr. Sood and advised him not to engage in any further work on the embankment. At that time, Mr. Bryne reminded Mr. Sood that filling and grading activities are governed under section 28 of the Conservation Authorities Act and that a permit is required prior to engaging in any such work.
Mr. Byrne testified that, throughout 2012, ERCA received information from neighbours that some on-going construction activities had taken place or were being undertaken on the Sood Property.
Mr. Byrne was provided with photographs of the work completed by Mr. Turnball and advised the Tribunal that these works were completed without authorization by the Municipality and without obtaining a permit from ERCA. According to Mr. Byrne, he again cautioned Mr. Sood that legal action may be initiated by ERCA for failing to get the necessary permits. In Mr. Byrne’s opinion, the works consisted of significant sloping and re-grading of the embankment. In ERCA’s opinion, any impact from the work completed by Mr. Turnball would be to the Sood Property and, because of this, ERCA did not pursue any legal action against the Soods.
Mr. Byrne testified that he was recently advised by the Municipality that additional works had been completed on the Sood Property that consisted of the construction of significant works and structures into the bank. Mr. Byrne confirmed that a permit was not issued to the Soods for this work and that no engineering drawings had been provided to ERCA for review and comment.
Jill Fiorito, Drainage Superintendent for the Municipality
Ms. Fiorito testified that the first time she became aware of a problem with the failure of the bank on the Sood Property was on January 30, 2012 when the Municipality received the request from the Soods. On cross examination, Ms. Fiorito admitted that the Municipality appointed the Engineer on January 31, 2012, one day after receiving the request under section 78 of the Act.
Ms. Fiorito believed that the former Drainage Superintendent, Mr. Brigam Barlow, may have met with the Soods prior to the formal request being filed on January 30, 2012. Ms. Fiorito recalled that Mr. Barlow had meetings with the Soods prior to the matter being brought before the Municipality and that Mr. Barlow advised the Appellant that proceeding under section 78 of the Act was the preferable way to proceed.
On February 7, 2012, a meeting was held on-site with the Municipality, Engineer and the Appellant. Ms. Fiorito indicated that the Municipality had numerous meetings with the Appellant, and the Appellant’s representatives while the Report was being prepared. Ms. Fiorito specifically recalled having numerous meetings with the Soods and their representatives Mr. Branoff, Mr. Turnball, and the Sood’s architect.
Ms. Fiorito testified that, in November 2012, she received notification about activity occurring at the Sood Property. Ms. Fiorito attended the Sood Property and took a series of photographs that was provided to the Tribunal for evidentiary purposes. Ms. Fiorito expressed concern about the impact of the concrete, asphalt and garbage discovered at the top of the drain on the bank.
Ms. Fiorito stated that prior to the December 10, 2012 Drainage Board meeting, the Municipality received a call from ERCA advising that one of the neighbours in the surrounding area called about some type of activity occurring at the Sood Property. Ms. Fiorito testified that, after receiving ERCA’s call, she investigated the Sood Property and discovered dump trucks entering and exiting the Sood Property.
Ms. Fiorito recalled meetings with Mr. Turnball and testified that she advised him that the Municipality has a pre-qualification list of individuals who can work on a municipal drain. Ms. Fiorito testified and reiterated on cross-examination that she advised Mr. Turnball that he could not do any work in a municipal drain unless he contacted the Municipality and was placed on the pre-qualification list.
Ms. Fiorito testified that on December 10, 2012, when the Report was being considered by the Drainage Board, the Appellant advised that they had already engaged in some work on the bank and was of the opinion that it resolved the problem. Ms. Fiorito testified that, at that time, she was not aware of any work being completed on the Sood Property. According to Ms. Fiorito, the first time she was advised about a different solution from what was being proposed in the Report was from Mr. Branoff, approximately one (1) week before the Tribunal hearing. At that time, Mr. Branoff advised Ms. Fiorito that the Appellant had a different solution to the erosion problems. Ms. Fiorito testified that the Appellant completed this work without contacting the Municipality or ERCA. Ms. Fiorito confirmed that she had cancelled the meeting with Mr. Branoff because Council for the Municipality instructed that the Report go before the Tribunal.
On questioning from the Tribunal, Ms. Fiorito testified that at the February 7, 2012 on-site meeting, an overview of the Act, the process, the appointment of the Engineer, and the Court of Revision was discussed with the Appellant. Ms. Fiorito again confirmed that numerous meetings were held with the Appellant and their representatives.
On ERCA’s involvement in the process, Ms. Fiorito testified that ERCA was invited to the February 7, 2012 on-site meeting but she was unclear as to whether or not Mr. Barlow had discussed the situation with ERCA prior to that time. During the hearing, Ms. Fiorito telephoned Mr. Bryne who advised her that ERCA had become aware of the bank failure at the end of 2011.
Mr. Marentette, Engineer for the Municipality
Mr. Marentette reviewed the history of the development of the Sood Property. Mr. Marentette referred to a photograph taken on February 8, 2012 identifying the most severe area of the bank failure and showing brown foamy water percolating from the bank. This photograph initially led the Engineer to believe that an outlet from the septic tank may not have been constructed in accordance with approved plans or that a pipe extending through the bank was cut off resulting in the bank failure.
The Engineer testified that based on the geotechnical report, and taking into account the amount of fill placed on the Sood Property since the construction of the house, it was recommended that the fill material imported to the Sood Property be removed and stockpiled until construction of the retaining wall was completed. The Engineer testified that he recommended that an investigation be performed during the excavation to construct the retaining wall in order to locate and identify the source of water observed during the initial site meeting.
The Engineer recommended that the retaining wall be installed using pre-cast concrete interlocking blocks with a design life of a minimum of sixty (60) years. According to the Report, the retaining wall system is to be designed by a Contractor and installed in accordance with the manufacture’s recommendations.
The Engineer testified that several meetings were held with the Soods to discuss the work. It was the Engineer’s understanding that on November 28, 2012, ERCA notified the Municipality of an internet complaint relating to filling activities on the Sood Property. On November 28, 2012 the Engineer and the Drainage Superintendent conducted a visit of the Sood Property to investigate the second occurrence of work without a permit following notification from ERCA. The Engineer testified that the work undertaken on the Sood Property consisted of grading, the benching of the top of the embankment and installation of subdrains and catchbasins, and that this work was located within the Pike Creek Drain.
The Engineer testified that in the preparation of the Report, he considered alternatives to the retaining wall including; steel and other geogrid retaining walls. In the Engineer’s opinion, all of these alternatives have implications from a practical and cost standpoint. Also, the Engineer assumed, based on the Soods’ filling activities, that the Soods wanted the table lands returned to what existed prior to the failure of the bank. The Engineer advised that, in developing a solution to the erosion problem, he considered the location of the pool, the amount of fill placed on the property historically and recently, and the area of the construction activities. Based on these considerations, the Engineer concluded that a gravity type retaining wall was the preferred solution.
In the Engineer’s opinion, the work completed on the Sood Property by Mr. Turnball was a band-aid solution to the bank failure problem and he was not prepared to validate any of the work completed by Mr. Turnball.
Upon questioning by the Tribunal, the Engineer indicated that he relied on sections 21 and 22 of the Act to support the 20% assessment to the Municipality. The Engineer testified that the Municipality’s liability for the 20% special assessment was because of the Municipality historically allowing the filling of the Sood Property when the house was constructed which, in his opinion, was one of the factors leading to the failure of the bank.
The Engineer testified that it is common practice to not provide a detailed design for a retaining wall to allow the contractor some flexibility in the design of the wall. In the Engineer’s opinion, he felt that he had set out sufficient detailed parameters for the wall.
The Engineer confirmed that the fill activities performed by the Soods did not change the recommendation in the Report that a retaining wall be constructed.
On cross examination, the Engineer confirmed that he recommended that the fill placed on the Sood Property be removed prior to the construction of the wall and that the Soods investigate the source of the area slumping as a result of percolating water (often referred to throughout the hearing as the sink hole). The Engineer further confirmed on cross-examination that if the Soods had discovered a pipe in the area that was not functioning and fixed the blockage, then it was reasonable to assume that a solution may have been found to the problems associated with the sink hole.
The Engineer took the position that, in his opinion, if the recommendations of the Report were implemented and a contractor dug down and found the source of the problem with the percolating water, it is likely that the contractor would find exactly what the Soods found; being the broken pipe that was not properly draining the area. The Engineer stated that it is not his responsibility to conduct a subsurface investigation as he is not an excavation contractor, and because of this, did not feel that it was his obligation to provide detailed designs for the retaining wall or conduct an investigation to determine the source of the problem.
Henry Dielemans, P. Eng., Golder and Associates Ltd. hired by the Engineer
Mr. Dielemans testified that the Engineer consulted with him about the geotechnical issues associated with the Sood Property in early February 2012. On February 8, 2012, a meeting was held at the Sood Property to observe a recent slope failure. Mr. Dielemans observed that soil masses had slumped down the bank and that there was visible moisture penetration on the Sood Property.
In his opinion, there were some signs of new fill being placed on the slope. Mr. Dielemans also examined the existing site features, the irrigation system, and noticed some discolouration on the slump that led him to suspect that there may be some effluent coming from the septic system.
Based on the observations at the meeting, Mr. Dielemans discussed proceeding with a follow up program to better define the subsurface conditions on the property. Mr. Dielemans indicated that he conducted some investigative work, including a site visit and exploratory work, to determine the source of seepage emanating from the bank.
Mr. Dielemans stated that he had no further involvement with the Sood Property until he conducted a geotechnical investigation in June 2012 and observed a significant amount of new fill that had been placed on the Sood Property. Mr. Dielemans indicated that he was unclear as to how the fill was placed and the method of placement.
Mr. Dielemans’ evidence was that the photographs taken by the Municipality identified that the slope instability was caused from the added weight of the fill at the top of the bank. Mr. Dielemans testified that he conducted the investigation (drilling) at the top of bank rather than in the fill area as he felt, for safety reasons, that he had to remain on stable land.
Upon completion of the field work, Mr. Dielemans stated that he had discussions with the Engineer to discuss slope restoration and several options were canvassed to resolve the problem including a sheet pile wall, gravity wall and the conceptual design from a geotechnical perspective. In Mr. Dielemans opinion, the gravity wall was the preferred solution. Mr. Dielemans testified that he had no further involvement in the process but understood that a significant amount of earth fill had been removed from the Sood Property in an attempt to establish a more stable slope.
Upon cross examination, Mr. Dielemans reiterated that he had discussed different options to resolve the slope stability issue with the Engineer and was unclear whether or not the various options were explained to the Soods. The different options, available after the placement of the additional fill included, in his opinion, a steel sheet pile wall, reinforced earth and the retaining wall. Mr. Dielemans agreed that the other options are still available to Mr. Sood but since it had been admitted that the fill could not be compacted, the fill would have to be removed and replaced with a different type of material.
Findings
The Municipality outlined in detail the extensive works that occurred on the Sood Property including; the placement of fill, removal of fill, and terracing and constructing french drains, all of which occurred without notification to the Municipality or ERCA.
Despite that ERCA may have been aware of the need for the drainage works on the Sood Property late in 2011, likely in or around December 2011, the evidence shows that the Municipality failed to notify the secretary-treasurer of ERCA thirty (30) days prior to the appointment of the engineer as required by the Act.
Section 78(2) of the Act states that “An engineer shall not be appointed under subsection (1) until thirty days after a notice advising of the proposed drainage works has been sent …” [emphasis added]. The Municipality does not dispute that the section 78 request was received on January 30, 2012 and that the engineer was appointed on January 31, 2012.
The Appellant is seeking to have the Report rejected and set aside by the Tribunal based on the defects identified with the Report and the failure of the Municipality to comply with the requirements of the Act. The evidence of the Appellant’s engineer was that the Report did not meet the requirements of section 8 of the Act because plans, profiles and specifications necessary for construction of the drainage works were not included as part of the Report. Also, the Appellant’s engineer is requesting that a wait and see approach be taken to determine whether the work completed by the Appellant, without the approval of the Municipality or permits from ERCA, resolve the problems associated with the slope stability at the rear of the Sood Property.
The Drainage Board heard the Soods’ request for reconsideration on December 10, 2012. Contrary to Mr. Sood’s understanding that ERCA was not opposed to the work completed by Mr. Turnball, the Minutes from the Drainage Board indicate that ERCA expressed concern with the work performed by Mr. Turnball in an ERCA regulated area without following proper process. However, while it is clear that ERCA did not want to validate any of the work that had been completed, ERCA indicated that it may be worth a re-assessment of the Sood Property since some of the fill had been removed.
The Tribunal was advised that, at the time of the hearing, there were no charges filed against the Soods by either ERCA or the Municipality for the work completed by the Soods without obtaining permits or prior approval.
The Municipality raised an issue with the evidence provided by Mr. Johnson and objected to him advocating a position on behalf of the Soods. The Tribunal agrees with the comments of counsel for the Municipality that an expert must be neutral and objective and cannot become an advocate. However, the Tribunal is of the opinion that Mr. Johnson’s evidence with respect to the contents of the Report, the condition of the Sood Property and the drainage problems, is properly treated as expert opinion.
There was general agreement amongst the engineering experts that the cause of the bank failure was accelerated by groundwater from an unknown source. The evidence before the Tribunal confirmed that the septic is not the source of the problem. The engineers differed in whether the repair of the pipe resolved the problem. However, the source of the problem does not appear to have been determined with any certainty.
The Tribunal does not accept the Engineer’s view that it is not his responsibility to conduct a subsurface investigation to locate the source of the problem. The Engineer requested that the Soods find the water source in the initial stages of the project and that the contractor deal with it during the construction phase. The Tribunal finds that it is the Engineer that is responsible for the overall administration of the Act from the initiation of the project to the completion of the project. While the Engineer may have asked the Soods to investigate the water source to save costs, it is the Engineer who has the responsibility to determine the source of the problem and provide a design to take the water to a sufficient outlet where it will do no further damage in the future.
The Tribunal accepts Mr. Johnson’s views that the specifications set out in the Report are unclear about the work to be completed and that insufficient details are provided to complete the construction of the retaining wall. The landowner is also entitled to know exactly what work is being proposed for the property to resolve the drainage problems.
The Tribunal has grave concerns about the allegations of impropriety by Mr. Bushnell and Mr. Fournier on the part of Mr. Byrne and Ms. Fiorito. In the Tribunal’s opinion, such allegations are inappropriate and without merit. While it is unclear who contacted ERCA about the works being conducted at the Sood Property, and whether it be by telephone or internet, it is clear that ERCA was contacted about the work. More importantly, the issue about whether or not ERCA was contacted by a neighbour has no bearing on the Tribunal’s decision.
The Appellant’s representative takes the position that there was no evidence that the Soods ever knew, were warned, or told by the Municipality that the fill added to the Sood Property required any permits or approvals. First, it is not the responsibility for the Municipality to advise every landowner within its jurisdiction of permits required, specifically for work that the Municipality is not advised of prior to it being undertaken. Second, the Tribunal accepts the evidence of ERCA and Ms. Fiorito that the Appellant and/or the Appellant’s representatives were advised on numerous occasions that permits and/or Municipal approvals were required. Unfortunately, the failure to obtain permits is not a matter that is within the jurisdiction of this Tribunal. The lack of jurisdiction of the Tribunal to deal with the work completed by the Appellant without the appropriate permits should in no way be interpreted as the Tribunal condoning the work.
The Tribunal notes that the Municipality failed to provide the required thirty (30) days notice to ERCA prior to the appointment of the Engineer, contrary to the provisions of section 78(2) of the Act.
The Engineer’s cavalier attitude towards the provisions of the Act gravely concern the Tribunal. Therefore, the Tribunal has no alternative but to conclude that the Report fails to comply with the Act, particularly with respect to the following:
The Engineer testified that he conducted an on-site meeting with the Soods on February 7, 2012 but there are no minutes, notes or documentation in the Report from this meeting;
The Report does not provide assessments against every parcel of land and road for benefit, outlet liability and injuring liability;
The drawings provided show the retaining wall encroaching onto the neighbour’s property without including the neighbour in any meetings or discussions about the location of the retaining wall. There was no assessment to the neighbour and it is unclear whether the neighbour will be responsible for any on-going maintenance costs. To resolve this issue, the Engineer testified that the Municipality will pay for this portion of the retaining wall;
The cross sections of the creek do not reconcile with the statement in the Report requiring that the width of the channel bottom be restored to the existing by-law profile set out in the 1968 Report; and,
The drawings show the retaining wall being constructed on the northern side of the bank despite the engineer testifying that the retaining wall is to be constructed at the back of the Sood Property, which would be the southern side of the bank.
The failure of the Municipality to provide the notice statutorily required by section 78(2) coupled with the deficiencies in the Report gives the Tribunal no alternative but to set aside the Report. However, this decision should in no way be interpreted as the Tribunal concluding that the “wait and see” approach to the erosion of the embankment being advocated by the Appellant as being appropriate in these circumstances. Since the Report is set aside, there is no reason to address the veracity of the assessments.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeals of Ms. Sood under sections 48(1) and 54(1) of the Act are granted.
The Engineer’s Report is set aside.
There be no other order as to costs and all parties are responsible for their own costs.
Dated at London, Ontario this 30th day of September, 2013.