Saxon Drain Branch No. 1 (RE), 2013 ONAFRAAT 7

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, chemin Stone Ouest

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Saxon Drain Branch No. 1 Municipality of South West Middlesex

Saxon Drain Branch No. 1 (RE) 2013 ONAFRAAT 7

STATUTE: Drainage Act

HEARING: April 30 and May 1, 2013

DATE OF DECISION: June 4, 2013

2013-07

NEUTRAL CITATION: 2013 ONAFRAAT 7

SAXON DRAIN BRANCH NO. 1 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 Jeanette and Thomas Patrick Ward, Appin, Ontario; under Section 48(1) and Section 54(1) of the Drainage Act from the Engineer’s Report and from a decision of the Court of Revision on the Saxon Drain Branch No. 1 in Municipality of Southwest Middlesex.

Before: Kirk Walstedt, Chair; Enio Sullo, Vice-Chair

Appearances: Ray Dobbin, P.Eng., R. Dobbin Engineering Inc. - Engineer who prepared the Report Janet McGuigan-Kelly, Counsel for the Municipality Thomas Patrick Ward, Appellant Valerie M’Garry, Counsel for the Appellant John Kuntze, P.Eng, K. Smart Associates Limited, Expert Witness for the Appellant John Jeffery, Drainage Contractor, Expert Witness for the Appellant Elizabeth Jeffery, Drainage Superintendent for the Municipality, Witness for Appellant M. Paul Downs, Counsel for Grant and Sharon Wolfe and Jim Wolfe, Assessed Landowners John Wolfe, Witness for the Assessed Landowners William J. Bartlett, P. Eng., Northwest Consulting Civil Engineers, Expert Witness for the Assessed Landowners Robert Robinson, C. Robert Robinson Contracting Ltd., Expert Witness for the Assessed Landowners Kenneth R. McCutcheon, P. Eng., McCutcheon Farm Drainage Ltd., Expert Witness for the Assessed Landowners

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of Southwest Middlesex Council Chambers (the “Municipality”) in Glencoe, Ontario on April 30 and May 1, 2013. The Engineer’s Report dated April 21, 2011 for the Saxon Drain Branch No. 1 (the “Report”) was prepared by R. Dobbin Engineering Inc., and signed by Ray Dobbin, P. Eng., (the “Engineer”). The appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) was filed by Valerie M’Garry, Counsel for the Appellants Jeanette and Thomas Patrick Ward.

Janneke Newitt, Administrator/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 the hearing. The Municipality filed an Affidavit of Service, dated April 26, 2013, as proof that all parties had been served with the notice of hearing.

At the start of the hearing, Ms. M’Garry objected to Mr. John Wolfe having party status at the hearing. She noted that the name “John Wolfe” appears on some of the document briefs submitted by Mr. Downs and is referenced in the witness reports of Messrs. Bartlett and McCutcheon. She pointed out Mr. John Wolfe is not an assessed landowner on the Saxon Drain and has no financial connection to the project. Therefore, she argued he is a “stranger” to the proceedings and should neither be permitted to participate in the hearing nor to call witnesses. Accordingly, she said the engineering reports prepared by Messrs. Bartlett and McCutcheon should also be excluded from the evidence since they were retained by Mr. John Wolfe.

Mr. Downs dismissed Ms. M’Garry’s objection as being disingenuous. He remarked that Ms. M’Garry has known all along he represents Grant and Sharon Wolfe and Jim Wolfe, who are assessed landowners in the Engineer’s Report. Therefore, he said Ms. M’Garry could not say the Appellant was misled by the name “John Wolfe” that was mistakenly placed on his document briefs. Furthermore, he argued that since he represented assessed landowners Grant and Sharon Wolfe and Jim Wolfe, they are entitled to call witnesses, including Messrs. Bartlett and McCutcheon. Mr. Downs pointed out that pursuant to Rule 31 of the Tribunal’s Rules of Procedure, the Tribunal had issued an order making all parties assessed or compensated for the drainage works parties to the hearing. He also pointed to Rule 2 which gives the Tribunal power to dispense with compliance with any rule in order to secure the most just, most expeditious and most cost effective determination of any appeal. Mr. Downs said the Tribunal could not make a just determination of the appeal if witnesses are excluded and pointed out that there is no Rule that requires the name of the appellants to be placed on the document briefs.

Ms. McGuigan-Kelly did not object to Mr. Downs’s representation of Grant and Sharon Wolfe and Jim Wolfe or allowing the evidence from the witnesses Messrs. Bartlett and McCutcheon.

Following a brief recess, the Tribunal acknowledged that Mr. Downs represented the assessed landowners Grant and Sharon Wolfe and Jim Wolfe and as such, he was entitled call witnesses, including Messrs. Bartlett and McCutcheon.

Ms. M’Garry reported that the afternoon preceding the hearing, she had received a diagram and a number of photographs taken by Elizabeth Jeffery, Drainage Superintendent for the Municipality, but she did not have time to determine the significance of the diagram and photographs. Since none of the parties objected, the Tribunal agreed to allow the photographs to be put into evidence and that any one of the parties could call Ms. Jeffery as a witness.

Background

The Saxon Drain is located in the vicinity of Irish Drive on Lots 6 and 7, Concessions R1NLR and R2NLR, between Mayfair Road and Springfield Road in the Municipality of Southwest Middlesex. The current Engineer’s Report was prepared pursuant to a petition under Section 4(2) of the Drainage Act (the “Act”). The Report recommends the construction of a new 250 mm (10”) diameter Saxon Drain Branch No. 1 tile drain along the north side of Irish Drive, commencing at the head of the Saxon Drain and extending easterly, upstream 150 m (492’). The Branch No. 1 Drain will serve a watershed of 13.6 ha (33.6 acres) comprised of private lands and the Irish Drive right-of-way. The Engineer’s estimated cost for the project is $15,764.

In addition to the construction of the new Saxon Drain Branch No.1 Drain, the Report also makes other recommendations, including blocking two tile drains on the lands owned by Tom and Jeannette Ward (S½ Lot 6, Concession R1NLR) which were deemed by the Engineer to be draining areas outside of the Saxon Drain watershed.

Issues

1. Should the drainage works recommended by the Engineer’s Report be modified?
2. Should any of the Engineer’s recommendations contained in the Report, including the disconnection of tiles on the Appellant’s lands, be modified or deleted?
3. Are the benefits derived from the drainage works commensurate with the costs?
4. Should the assessments be modified?

Evidence

Mr. Ray Dobbin P.Eng., R. Dobbin Engineering Inc., the Engineer who prepared the Report

Mr. Dobbin testified that the project was initiated by a petition dated October 9, 2009 under Section 4 of the Drainage Act, submitted by Tom and Jeannette Ward, owners of S½ Lot 6, Concession R2NLR.

Mr. Dobbin stated the Saxon Drain as it exists today consists of twin tile drains that start at two catch basins on the north side of Irish Drive and flow downstream approximately 945 m (3,100’) where they outlet into an open drain. He said the first of the two tiles was constructed under an Engineer’s report by Mr. Spriet dated February 19, 1974 as a replacement for an open channel and consists of 525 m (1,722’) of 350 mm (14”) diameter and 420 m (1,378’) of 400 mm (16”) diameter concrete tile. The second tile drain which runs parallel to the original tile was constructed under his report dated April 22, 2001 and consists of 512 m (1,680’) of 450 mm (18”) diameter and 434 m (1,424’) of 525 mm (21”) diameter concrete tile. Mr. Dobbin said that the two catch basins at the head of each tile drain on the north side of Irish Drive were connected together as part of the 2001 report. He explained that the 1974 and 2001 tile drains were designed to 9 mm (3/8”) and 16 mm (5/8”) drainage coefficients respectively but since the tiles are interconnected, they act as a system resulting in a design to a 25 mm (1”) drainage coefficient.

In addition to the twin tile drains, Mr. Dobbin testified the drainage works comprising the Saxon Drain also includes a 300 mm (12”) diameter tile known as the Saxon Drain Branch that extends northeast from the head of the twin tile drains on the north side of Irish Drive, across the southeast corner of Lot 7, to the west boundary of Lot 6. He said the Branch tile provides outlet for both surface and subsurface waters from Lot 6 and that it was incorporated as a Municipal drain under his report dated April 23, 2007. Specifically the Branch Drain provides an outlet for a 300 mm (12”) tile draining the northerly part of Mr. Ward’s property.

Mr. Dobbin explained that a Branch B open channel drain also existed along the north side of Irish Drive which was constructed under a report dated August 7, 1897. However, he said that at some point the channel was filled in and replaced with a tile drain which later became the responsibility of the Road Authority.

With respect to the current Report, Mr. Dobbin gave evidence that he conducted a site meeting on January 26, 2010 at which time he gathered information from those who attended the meeting, examined the drainage area and ultimately concluded that the drainage petition submitted by Mr. Ward complied with Section 4(2) of the Drainage Act. Based on the petition, Mr. Dobbin said that he found it reasonable to extend a new municipal tile drain along the north side of Irish Drive from the head of the Saxon Drain tiles, easterly to a low lying area east of Mr. Ward’s driveway, where water collected from the road allowance and from property on both sides. He said that there was a 200 mm (6”) tile in the south part of Mr. Ward’s land whose current outlet was into the Saxon Branch Drain and that Mr. Ward wished to connect this tile to the new municipal tile drain.

Mr. Dobbin gave evidence that following the site meeting of January 26, 2010, he could see fresh backfill from a trench for new 200 mm (8”) tile that had been installed on Mr. Ward’s land in the fall 2009. He said that he walked along the trench line and discovered that it extended to within 90 m (295’) of the east boundary of Lot 6, which appeared to be beyond the Saxon Drain drainage area of 30 acres (12.1 ha) established by the 1974 report. Upon returning from his walk, Mr. Dobbin testified that he spoke with Mr. Ward about what he had found. He said that Mr. Ward told him that he knew the tile extended outside the Saxon Drain watershed but all he had done in 2009 was to replace the existing tile. Referring to his notes, Mr. Dobbin testified that he then asked Mr. Ward about a second, more northerly tile and Mr. Ward’s response was that he knew that northerly tile extended to a low hole which was also beyond the Saxon Drain drainage area. According to Mr. Dobbin, Mr. Ward told him that the Bateman Drain tile was not low enough to drain the low holes on his land and that in the 1960s he had diverted a portion of Bateman Drain drainage area to the Saxon Drain because the Saxon Drain was a better outlet. Mr. Dobbin also said that Mr. Ward told him that he had relocated a portion of the Bateman Drain tile on his property. Further Mr. Dobbin stated that he asked Mr. Ward if his tiles and the Bateman Drain tiles were interconnected to which Mr. Ward’s reply was no.

Based on his review of the records, Mr. Dobbin testified that the Engineer (Mr. Spriet) who prepared the 1974 report for the Saxon Drain had walked Mr. Ward’s farm to establish the drainage of 30 acres (12.1 ha). He said that he was aware that in 1988 another Engineer (Mr. Pletch) also walked the Ward property and agreed with Mr. Spriet on the drainage area of 30 acres (12.1 ha). Mr. Dobbin gave evidence that he asked Mr. Ward if he had told Mr. Spriet or Mr. Pletch about the tile drains that he had extended outside of the Saxon Drain watershed to which Mr. Ward replied that he had not told them because they did not ask him.

Mr. Dobbin said since it appeared that Mr. Ward had diverted drainage from additional land into the Saxon Drain watershed, he became concerned with the capacity of the Saxon Drain tiles because both his 2001 design and Mr. Spriet’s 1974 design were based on a watershed of 30 acres (12.1 ha). For that reason, he said that he reported his findings to the Municipality who then instructed him to carry out a more detailed investigation of the drainage boundary for the Saxon Drain north of Irish Drive, pursuant to Section 65 of the Drainage Act. Accordingly he said that he carried out a GPS topographic survey and determined at least 17.3 ha (42.7 acres) of the Ward lands (S½ Lot 6) and 33.8 ha (83.5 acres) of the Wilson lands are being drained into the Saxon Drain by way of a subsurface drainage system, whereas they were assessed 12.1 ha (30 acres) and 32.1 ha (79.3 acres) respectively in the 1974 and 2001 reports.

Mr. Dobbin stated that his investigation into the Saxon Drain drainage boundary also revealed the balance of Mr. Ward’s lands beyond the 12.1 ha (30 acres) assessed into the Saxon Drain were historically assessed into the Bateman Drain. According to Mr. Dobbin, the Bateman Drain has undergone little in the way of maintenance or improvement since it was constructed under a 1929 Engineer’s report.

Mr. Dobbin testified that he prepared his Report for the Saxon Drain Branch No. 1 with the following recommendations:

1. That a tile drain be extended east along the north side of Irish Drive from the existing catchbasin at the head of the Saxon Drain (2001) to the low area east of the driveway to 5875 Irish Drive (5878 Irish Drive), generally in the vicinity of the existing road culvert under Irish Drive.

2. That a catchbasin be installed at the head of the proposed tile drain to provide outlet for surface water.

3. That a knockout be left in the proposed catchbasin to allow connection of the existing 200 mm dia. tile main in the south portion of the south part of lot 6 if the conditions in recommendations 4 and 5 are confirmed.

4. That the 300 mm dia. tile main extending north east in the south part of lot 6 be exposed and permanently blocked at a location to be confirmed by the engineer (approx. 60 metres southwest of the end of the tile as shown on the drawings).

5. The 150 mm dia. portion of the 200 mm and 150 mm dia. tile main extending northeast in the south part of lot 6 and currently connected to the 300 mm dia. tile main shall be exposed and permanently blocked at a location to be confirmed by the engineer (approx. 150 metres southwest of the end of the tile as shown on the drawings).

6. The owner will not be allowed to connect any subsurface drainage to the proposed catchbasin in the event that recommendations no. 4 and 5 have not been carried out. If recommendations no. 4 and 5 are not maintained, the municipality may disconnect any subsurface drainage from the proposed catchbasin at the expense of the owner until such time as the owner complies with these recommendations when it may be reconnected at the owner’s expense.

7. That improvements be carried out on the Bateman Drain in the south portions of lots 5 and 6 and the Stevenson Drain downstream as necessary to provide sufficient outlet under Section 78 of the Drainage Act for lands within its watershed. That improvements be made to the branch of the Stevenson drain in lot 5, range 2 north and downstream as necessary to provide sufficient outlet for lands within its watershed

8. That the owner of the south half of lot 6 or the owner of south half lot 7 file a section 4 petition with the council requesting that a branch of the Bateman Drain be extended west to the property line between lots 6 and 7 to provide outlet for surface waters from the bush area in the south half of lot 7 and approx. 1.7 hectares (4.2 acres) of subsurface drainage from that property.

Mr. Dobbin explained that he designed the Branch No. 1 Drain to a 25 mm (1”) drainage coefficient. He said that since he had become aware that Mr. Ward had extended his tiles beyond the historical Saxon Drain watershed, he recommended the disconnection of Mr. Ward’s southerly and northerly tiles (recommendation nos. 4 and 5) at the watershed boundary of the Saxon Drain. He explained that although the northerly tile now outlets to Branch B, it would backflow into the new Branch No.1 drain since it is interconnected with the southerly tiles.

Mr. Dobbin stated the only work that needs to be done per his Report is the construction of the new Saxon Branch No. 1 tile and catchbasin (recommendation nos. 1, 2 and 3). He said that Mr. Ward does not have to block his tiles (recommendation nos. 4 and 5) but if he does not do so, he will not be allowed to connect to the new Saxon Drain Branch No.1 (recommendation no. 6). Mr. Dobbin explained that he also included recommendations nos. 7 and 8 in his Report because the Bateman Drain has received little or no maintenance since its construction in 1929 and is neither big enough nor deep enough to drain its watershed. He said that because the Bateman Drain is limited in capacity to a 9 mm (3/8”) drainage coefficient and has not been maintained, water from Bateman Drain watershed often surcharges into the Saxon Drain.

Mr. Dobbin testified that he separated the $15,764 estimated cost of the proposed drainage works into two amounts: $12,204 for the recommended construction and $3,560 for his investigation into the drainage area. He said that he split the $12,204 into two thirds ($8,136) benefit assessment and one third ($4,068) outlet assessment. For the benefit, he assessed 50% to, Concession R2NLR, 40% to Irish Drive and 10% to Lot 6 Concession R1NLR. He assessed the outlet to each property and road based on equivalent hectares. With respect to the $3,560, Mr. Dobbin explained that he assessed a large portion of this amount to S½ Lot 6 and S ½ S Lot 7 where he spent the greatest amount of time and the remaining cost to the Saxon Drain watershed.

Mr. Dobbin gave evidence that his Report was provisionally adopted by the Municipal Council on August 3, 2011. Subsequently a Court of Revision was held on September 14, 2011 at which time the Court made a correction to Mr. Ward’s affected hectares from 12.1 (30 acres) to 4.6 ha (11.4 acres) on the Saxon Drain Branch No. 1 Drain.

Evidence of Mr. Thomas Patrick Ward, Appellant

Mr. Ward testified that he and his wife purchased the property in 1963 from Mr. Bateman. He said that he and Mr. Bateman walked the perimeter and used a 50 ft. tape to establish the size of the parcel. He explained that the property was then overgrown with brush and large trees, so they had great difficulty measuring the three sides away from the road. Although he and Mr. Bateman agreed on 123 acres (49.8 ha), Mr. Ward said that he registered the deed at 125 acres (50.6 ha) and that no legal survey has ever been done to confirm the parcel size. Mr. Ward testified that in 1966, he cleared the land of brush and trees for the purpose of farming.

Mr. Ward said that in the 1960s there was drainage from his land to the Saxon Drain by way of a 12” (300 mm) tile in the northeast part of his farm. He said there was also drainage in the southeast part of the farm to Branch C of the Bateman Drain by way of a 6” (150 mm) tile.

Using the scaled topographic map which formed part of Mr. Dobbin’s Report, Ms. M’Garry asked Mr. Ward to point out the main tile drains on his property. Mr. Ward pointed to two tile drains which he referred to as the 1966 tile and the 2009 tile. He said Mr. Dobbin wants him to disconnect the upper 200’ (81 m) of his 2009 tile and the upper 500’ (152 m) of his 1966 tile from the Saxon Drain watershed. He remarked that he cannot disconnect the tiles because there is not enough fall for them to go to the Bateman Drain. However, he did get an estimate from a tiling contractor, John Jeffery to disconnect the two tiles and divert them to the Bateman Drain; that estimate was in the amount of $4,410.

Mr. Ward testified that since the road ditch on the north side of Irish Drive has no outlet, the drainage from the road is through his private tiles. With respect to the south side of the road, he said that drainage has always been by way of a road ditch toward the original open channel of the Bateman Drain. He objected to water being diverted from the south side of the road into the new Saxon Drain Branch No. 1 as proposed in the Report.

Mr. Ward gave evidence the Saxon Drain is made up of two tiles which were installed at different times under a 1974 “Spriet” report and a 2001 “Dobbin” report, respectively. He said that the “Spriet” and “Dobbin” tiles were designed for a 3/8” (9 mm) and 5/8” (16 mm) drainage coefficient respectively and that the “Spriet” tile is 20” (500 mm) higher than the “Dobbin” drain. He went on to explain that although the overall design of the two tiles is to a 1” (25 mm) coefficient, he only has access to the lower “Dobbin” tile due to slope limitations from his property. Therefore, Mr. Ward reasoned that his land is only drained to a 5/8” (16 mm) drainage coefficient in the Saxon Drain.

Mr. Ward testified he has never refused to disclose the location of his private tile drains to the Engineer. He said that Mr. Dobbin could have walked his property with him and he would have pointed out the location of his drains.

Referring to photographs of his land which he had taken during a recent rainfall, Mr. Ward pointed out several ponds of water where he said surface water was flowing from the Saxon Drain watershed to the Bateman Drain watershed. Referring to additional photographs, Mr. Ward described the existing conditions on the north side of Irish Drive, along the proposed route of Saxon Branch Drain No. 1. He said there have been a number of motor vehicle accidents in the area due to the bend in the road, the limited room and the existence of a hydro pole. Therefore he said that an open ditch along that section would not make sense.

During cross-examination by Mr. Downs, Mr. Ward was insistent that the overflow of water on his land depicted in the photographs was from the Saxon Drain watershed to the Bateman Drain watershed, and not the other way around. Mr. Ward testified that he did not know what work had been done on the Bateman Drain before his arrival on the scene in 1963. However, after his arrival, he said that he replaced a 12” (300 mm) tile on his land and in the 1990s; he replaced part of the Bateman Drain tile.

Mr. Ward agreed that the drainage area of his land established by the 1974 Engineer’s report was 30 acres (12.1 ha) and that before that it was 23 acres (9.3 ha), as established in the 1954 report. Mr. Downs put it to Mr. Ward that the 1954 report actually established the drainage area at 17 acres (6.9 ha) but Mr. Ward maintained his position of 23 acres (9.3 ha). Mr. Ward said that he did not know why or how the Engineer arrived at an increased drainage area of 30 acres (12.1 ha) in the 1974 report. Mr. Ward indicated that he concurred with Mr. Dobbin’s determination that the area of his land draining to the Saxon Drain is actually about 43 acres (17.3 ha) despite that since 1974 he had only been assessed for 30 acres (12.1 ha).

Responding to further questions from Mr. Downs, Mr. Ward testified that he has never drained water into the Saxon Drain from outside the 30 acre (12.1 ha) watershed for which he was assessed. He qualified his answer by saying that he did not extend any tiles outside the Saxon Drain watershed since he installed the tiles in 1966. Whereas Mr. Dobbin testified that he had a conversation with Mr. Ward following the site meeting wherein Mr. Ward told him that he had extended his tile outside of the Saxon Drain watershed and connected them to the Saxon Drain because it was a better outlet, Mr. Ward denied having had such a conversation.

Mr. Downs put it to Mr. Ward that he had not paid his fair share of the assessment for the Saxon Drain since 1966 because he was assessed for only 17 acres (6.9 ha) up to 1974 and for 30 acres (12.1 ha) up to the present, whereas he was actually draining 43 acres (17.3 ha). Mr. Ward said that he relied on what the Engineer’s determination of the drainage area in 1974 and in the reports that Mr. Dobbin did in 2001 and 2007. He suggested that the Engineers, including Mr. Dobbin did not do their job properly in making a determination of the actual Saxon Drain watershed area on his land. Further, he said that it was not his fault that Mr. Dobbin designed the Saxon Drain tile in 2001 based on 30 acres (12.1 ha) instead of 43 acres (17.3 ha).

During questioning by Ms. McGuigan-Kelly, Mr. Ward conceded that he knew in 1966 he was bringing in more water into the Saxon Drain by extending his tiles outside the Saxon Drain watershed. However, Mr. Ward maintained his position that any tiling he had done since 1966 was only to repair or replace the existing tiles and no new tiles were extended outside the watershed for the Saxon Drain. Mr. Ward explained that he connected the tiles to the Saxon Drain because the Bateman Drain was not deep enough. Mr. Ward confirmed that neither he nor any of his neighbours have ever petitioned to repair and improve the Bateman Drain.

Evidence of Mr. John Kuntze, P.Eng., K. Smart Associates Ltd., Expert Witness for the Appellant

Mr. Kuntze’s expert witness report dated April 16, 2012 was put into evidence by Ms. M’Garry.

In preparing his report, Mr. Kuntze testified that he met with Mr. Ward and together they walked the entire farm. Mr. Kuntze said he also reviewed Mr. Dobbin’s Report, including the attached topographic map, aerial photographs of the Ward farm (taken in 2000, 2006 and 2008), as well as, historical Engineers reports for the Saxon Drain (from 1897, 1947, 1954, 1974, 2001, 2006 and 2007), for the Bateman Drain (from 1929, 1954 and 1966) and for the Stevenson Drain (from 1988).

Mr. Kuntze gave evidence the Ward farm is drained by the Saxon Drain and the Bateman Drain. He said that in the early reports (Saxon 1897 and Bateman 1929), Mr. Ward’s property was shown to be 100 acres (40.5 ha), even though the watershed plans scaled from 105 to 107 acres (42.5 to 43.3 ha). He added that the current assessment rolls for the Municipality indicate the property is 125 acres (50.5 ha). However, by overlaying the approximate boundary of the property onto the topographic plan produced by Mr. Dobbin, he determined that parcel is approximately 117.8 acres (47.7 ha.). Mr. Kuntze concluded that 115 acres (46.55 ha) would be a reasonable approximation of Mr. Ward’s farm. Mr. Kuntze said the size of the Ward farm provides insight as to the discrepancies in the balancing of watershed between the Saxon and Bateman Drains undertaken by the Engineers in previous reports.

Mr. Kuntze stated the 1897 report for the Saxon Drain does not stipulate the affected area of the Ward farm, neither on the schedule of assessment nor on the drawing. Although the watershed shown on the 1897 drawing does not closely represent the current watershed on the Ward farm, Mr. Kuntze said that by scaling the 1897 drawing, he determined the affected area to be 21 acres (8.5 ha) and the overall parcel size of the farm to be 107 acres (43.3 ha). Mr. Kuntze stated the 1947 report did not make any changes to the assessment schedule but the 1954 report shows 17 acres (6.9 ha) assessment to the Saxon Drain for Mr. Ward’s land. According to Mr. Kuntze, the 1974 Saxon Drain report increased the assessed area of Mr. Ward’s farm to 30 acres (12.1 ha) based on the drainage patterns observed by the Engineer at that time and also based on the information that the farm was actually larger than 100 acres (40.5 ha). Mr. Kuntze added that the outline of the watershed boundary shown on the 1974 report actually scales 41 acres (16.6 ha). With respect to the 2001 and 2006 reports prepared by Mr. Dobbin, Mr. Kuntze noted that whereas the reports assess Mr. Ward for 12.1 ha (30 acres), the watershed shown on the drawings attached to those reports scales approximately 16.7 ha. (41 acres) and the overall parcel size scales 113 acres (45.7 ha).

Before seeing the 1929 report, Mr. Kuntze testified that he did not know about the existence of the Bateman Drain, noting the watershed plans in the 1954 and 1966 do not recognize or show the location of the Bateman Drain, even though those reports propose work on the Bateman Drain. Furthermore, he said the watershed plan attached to the 1988 report for the Stevenson Drain which provides outlet for the Bateman Drain also did not show any part of the Bateman Drain. According to Mr. Kuntze, part of the Bateman Drain tile was replaced by Mr. Ward in 1966 while he was installing tile drains on his property, believing it was a private drain. Mr. Kuntze said the Engineer who prepared the 1988 report for the Stevenson Drain appears to have done a “watershed balance” for the Ward property under the assumption that the farm was 125 acres (50.5 ha); thereby assessing 95 acres (38.4 ha) to the Stevenson Drain by deducting the 30 acres (12.1 ha) assessment to the Saxon Drain from the 125 acres (50.5 ha) overall parcel size.

Mr. Kuntze was aware Mr. Ward had tiled his land in 1966 shortly after he bought the property. However, he said the drainage pattern established in 1966 has not changed since that time. He noted the recent tiling activity in 2002 and 2009 was to replace the existing tile drains once an outlet was made available by the 2001 Saxon Drain report. Mr. Kuntze stated that in 1966, Mr. Ward drained his farm in the most effective way that he could by using the outlets available in the Saxon and Bateman Drains. Mr. Kuntze indicated that Mr. Ward did tile additional lands to the Saxon Drain in 1966. However, he said that the Engineers that worked on the Saxon Drain since 1966 have not properly defined the watershed area for the Saxon Drain. Therefore, he reasoned that Mr. Ward cannot be held responsible for the oversight of previous Engineers in properly defining the Saxon Drain watershed. Furthermore, he said that in 2002, the landowners contacted Mr. Spriet, the Engineer who prepared the 1974 report, who told them that Mr. Ward was not tiling outside the Saxon Drain watershed. In this regard, he put into evidence a handwritten note from Mr. Spriet dated October 10, 2002.

As part of his testimony, Mr. Kuntze referred to a large scale copy of the topographic map prepared by Mr. Dobbin that showed the historical and expanded watershed for the Saxon Drain on the Ward property. Mr. Kuntze had marked the location of Mr. Ward’s main tile drains and surface flow patterns on the map. He also identified the watershed boundary of the Saxon Drain based on his interpretation of the plans attached to the historical reports and had divided the lands into a number of sub-watersheds. He then described in significant detail the surface and subsurface drainage for each of the sub-watersheds. In particular, he identified the areas D4a and D6 (1.79 ha (4.4 acres) and 3.34 ha (8.25 acres), respectively) as those that Mr. Dobbin wants to disconnect from the Saxon Drain. Mr. Kuntze noted that based on his interpretation of the watershed boundary, these areas were actually located within the historical Saxon Drain watershed. He explained while the surface water from the two areas will overflow to the Bateman Drain, the areas are drained by Mr. Ward’s subsurface tiles that outlet to the Saxon Drain. As such, he suggested that the assessment for the two areas be split 50/50 between the Saxon and Bateman Drains.

Mr. Kuntze then explained his analysis which led him to conclude the overall size of Mr. Ward’s farm is 47.68 ha (117.8 acres) and that the correct watershed areas for the Saxon and Saxon Drain Branch 1 Drains are 15.1 ha (37 acres) and 5.5 ha (13.5 acres) respectively.

Mr. Kuntze observed there is no information in Mr. Dobbin’s Report regarding the existing tile drains on Mr. Ward’s land. He said that Mr. Dobbin should have sought out the existing tile information from the landowners, including Mr. Ward, noting that in his own practice he always asks the landowners the questions: “do you have tile drainage? ...do you have a plan of the tile drainage? …can you tell me what tile drains you have?” He suggested that Mr. Ward cannot be faulted for Mr. Dobbin’s failure to ask these questions.

Mr. Kuntze pointed out the current tile drainage on Mr. Ward’s farm is random and there are no direct surface inlets. He said that the tile drainage system has been carrying the subsurface flow to the Saxon Drain since 1966 with no apparent problems. He noted there are no surface inlets on Mr. Ward’s tiles; therefore they are only draining a 25’ (10 m) swath along their length through slow ground percolation. Mr. Kuntze said he realized that the design of the Saxon Drain tiles in the 1974 and 2001 reports was based on 12.1 ha (30 acres) from Mr. Ward’s lands, however, he testified that in his opinion, the design of the Saxon Drain in the 2001 report would not have changed as a result of using 15.1 ha (37 acres) instead of 12.1 ha (30 acres). He said that in his opinion, if you cut off Mr. Ward’s tiles as recommended in the Report, it won’t make any difference downstream. In this regard, he testified that he had calculated the “effective” drainage coefficient for the Saxon Drain tiles to be 22 mm (7/8”) when using an drainage area of 15.1 ha (37 acres) for the Ward lands. He noted that this is only a 3 mm (1/8”) reduction from Mr. Dobbin’s 25 mm (1”) design.

Mr. Kuntze testified that he had reviewed the flow calculations attached to the report prepared by Mr. Bartlett (expert witness for the Assessed Landowners). He remarked that while he agreed that Mr. Bartlett’s calculations were mathematically correct, he said that the flow capacity of the Saxon drain tiles of 147.7 l/s as calculated by Mr. Bartlett only applies when the two tile drains are working together. However, he said Mr. Ward’s land is connected only to the 18” (450 mm) diameter tile which is the lower of the two Saxon Drain tiles; the second tile, which is a 16” (400 mm) diameter, is 20”(500 mm) higher and is not deep enough to drain Mr. Ward’s lands. Mr. Kuntze reasoned that Mr. Ward only receives the benefit of a 5/8” (16 mm) drainage coefficient whereas the downstream landowners, who are able to utilize both tiles, receive the benefit of a 1” (25 mm) drainage coefficient.

Mr. Kuntze objected to bringing water into the Saxon Drain Branch No.1 from the south side of the road. He said that any drainage problem on the south side of the road needs to be dealt with on the south side of the road and suggested that a new drainage petition is required. He noted that Mr. Ward did not ask for drainage of the road or lands from the south side of the road.

Mr. Kuntze stated that since the Saxon Drain watershed has now been clearly established, it is a good opportunity to correct past errors made by the Engineers. Accordingly, he suggested that the Tribunal should order the following:

“Watershed plan – Drawing 1 of 4

• Watershed area for Branch No. 1 to be corrected to agree with the watershed shown on the attached topo plan

• Primary change is to delete the south side of Irish Drive and lands south of Irish Drive from the Saxon Branch 1 watershed

• Correct the Saxon Drain watershed to agree with the current drainage area and delete reference to historical and current drainage area

• Add note that area D6 and area D4a are assessed at half the area and shall continue to be assessed to the Bateman Drain for the other half of the area

• Correct Stevenson Drain Branches to Bateman Drain Branches

Report Recommendations Page 4

1. Remove words “…generally in the vicinity of the existing road culvert under Irish Drive” Road ditch on south side of road not to be drained north in this location by installing a new culvert across the road as suggested in the Dobbin letter dated June 29, 2011, issues with drainage on the south side of the road should be resolved on the south side of the road.

2. No change

3. Remove words “…if the conditions in recommendations 4 and 5 are confirmed”

4. delete

5. delete

6. delete

7. delete – decisions as listed to be made by affected owners and Drainage Superintendent if required

8. delete – recommendation is unclear, owners can decide if they need a new drain and file a petition

Assessment Schedule 1

…the cost of the Saxon Branch No. 1 be assessed be equally to Ward and Irish Drive as a benefit assessment.

Assessment Schedule 2

Cost of the watershed investigation should be borne by the Municipality…. The Municipality could consider assessing half the cost to the Bateman Drain and half the cost to the Saxon Drain.”

During cross examination by Mr. Downs, Mr. Kuntze conceded the area currently being drained by Mr. Ward to the Saxon Drain could be as much as 43 acres (17.3 ha) as noted by Mr. Dobbin. Mr. Kuntze agreed that when Mr. Ward replaced the 1966 tiles with bigger tiles in 2002, the flow would have increased if the slope of the tiles was also increased. Mr. Kuntze also agreed that Section 65 of the Drainage Act requires a landowner seek the permission of the Municipality to connect to a different drain. Mr. Kuntze said that he was aware that John Jeffery had estimated the cost to connect Mr. Ward’s tiles to the Bateman Drain to be $4,410 and concurred the connections were feasible if the Bateman Drain was deepened. He also agreed the connection of the tiles to the Bateman Drain was a cheaper solution than enlarging or adding another tile to the Saxon Drain to accommodate the expanded watershed on the Ward lands. However, Mr. Kuntze said the cheapest solution is leave the tiles connected to the Saxon Drain since they do not affect the Saxon Drain.

During cross-examination by Ms. McGuigan-Kelly, Mr. Kuntze persisted with his opinion that the water on the south side Irish Drive should not be brought into the Saxon Branch No. 1 Drain as proposed by Mr. Dobbin.

Mr. Kuntze admitted that he only became aware of the enlarged watershed for the Saxon Drain when he saw Mr. Dobbin’s Report in 2011. With respect to Mr. Ward’s private drains, Mr. Kuntze confirmed that he had not actually located the tile drains on the ground and that the tiles he had drawn on the topographic map were based on information provided by Mr. Ward as well as previous Engineer’s reports. Mr. Kuntze conceded that Mr. Ward could easily install surface inlets into his tiles even though there may not be any there now.

Evidence of Mr. John Jeffery, Drainage Contractor – Expert Witness for the Appellant

Mr. Jeffery testified that he farms land immediately behind Mr. Ward’s property and that he was a third generation drainage contractor. He said that he has done all tiling on Mr. Ward’s land since 1965 and considers himself to be very familiar with the drainage in the area. He noted that the tiling pattern on Mr. Ward’s land has not changed since 1966 even though some of the tiles have been replaced from time to time. Mr. Jeffrey recalled that in 1966, he used a survey level to determine the fall of the land and ran the tile accordingly, but acknowledged that he did not know where the watershed boundary between the Saxon and Bateman Drains were at that time.

Mr. Jeffery disagreed with Mr. Dobbin’s evidence that the northerly tile on Mr. Ward’s land is 8” (200 mm) and 6” (150mm) diameter. He indicated that in 2002 he replaced the 6” (150 mm) tile with 12” (300 mm) diameter at the downstream end, where it outlets into the Saxon Branch Drain. Moving upstream, he said the tile then changes to 8” (200 mm), 6” (150 mm) and 4” (100 mm) diameter.

Mr. Jeffery gave evidence that Mr. Ward asked to meet with him at the site to review the location where Mr. Ward’s tile drains were to be cut-off as recommended by Mr. Dobbin. Mr. Jeffery determined that only the northerly tile could be connected to the Bateman Drain; the southerly tile could not be connected because the Bateman Drain (Branch C) was not deep enough. Nevertheless, Mr. Jeffery said that he prepared a cost estimate to connect both tiles into the Bateman Drain in the amount of $4,410.

Referring to photographs of the site which had been taken by both himself and Mr. Ward after a rainfall, he noted that the surface waters from the Saxon and Bateman drains were mixing at the watershed boundary. However, his observation was that water was not running from the Saxon Drain into the Bateman Drain.

During cross-examination by Mr. Downs, Mr. Jeffery admitted that he could not tell from the photographs which way the surface water was running at the watershed boundary between the Saxon and Bateman Drains. Mr. Jeffery also agreed that based on his knowledge, there has not been any maintenance work done on the Bateman Drain throughout its history, except for a section of the Bateman Drain on the Ward property that was replaced in 1966.

On further questioning by Mr. Downs, Mr. Jeffery agreed that the tiles on Mr. Ward’s land could be cut-off as recommended by the Report, and diverted to the Bateman Drain, if the Bateman Drain was deepened.

Evidence of Ms. Elizabeth Jeffery, Drainage Superintendent for the Municipality, Witness for the Appellant

Ms. Jeffery testified that, at the request of Mr. Ward, she took photographs of the flow conditions in the catch basins located at the head of the Saxon Drain, on the north and south sides of Irish Drive. Ms. Jeffery said that she took the first set of photographs on April 10, 2013, after a rainfall event and the second set on April 26, 2013 when there had been no rain. She explained that she took the photographs on April 26, 2013 only for reference purposes. On the photographs taken on April 10, 2013, Ms. Jeffery described that the flow was visible in the lower of the two Saxon Drain tiles and nothing was overflowing into the higher tile.

Evidence of Mr. M. William J. Bartlett, P. Eng., Northwest Consulting Civil Engineers - Expert Witness for the Assessed Landowners

Mr. Bartlett testified that Section 65(5) of the Drainage Act requires that:

“No person shall connect to or disconnect from drainage works without the approval of the council of the municipality.”

He also pointed to Section 65(3) of the Act which states:

“If an owner of land that is not assessed for a drainage works subsequently connects the land with the drainage works for the purpose of drainage, or if the nature or extent of the use of a drainage works by land assessed for the drainage works is subsequently altered, the clerk of the local municipality in which the land is situate shall instruct an engineer in writing to inspect the land and assess it for a just proportion of the drainage works, taking into account any compensation paid to the owner of the land in respect of the drainage works.”

Mr. Bartlett testified that an Engineer instructed under Section 65(3) must be satisfied the proposed connection of additional drainage waters can be accommodated in the capacity of the drainage works and that the proposed connection will not adversely impact the drainage of other lands in the watershed. If the Engineer is of the opinion that there is sufficient capacity, and that other lands will not be adversely impacted, the Engineer will then determine an assessment or connection fee. However under the current circumstances, Mr. Bartlett said that he agreed with Mr. Dobbin’s recommendation to block Mr. Ward’s tiles at the limit of the historical Saxon Drain watershed, noting the Saxon Drain does not have adequate capacity to accommodate the extra 5.2 ha (12.8 acres) from the Bateman Drain watershed, without adversely affecting the drainage of the other lands within the Saxon Drain watershed. He said he also agrees with Mr. Dobbin’s recommendation that the Bateman Drain be improved under a new drainage report to provide sufficient outlet for the lands within its watershed.

Mr. Bartlett testified that he reviewed the report prepared by Mr. Kuntze and that he disagreed with a number of statements made by Mr. Kuntze. He said Mr. Kuntze’s statement that the Engineers in the 1974 and 2001 failed to properly define the watershed is unfair, noting that if the Engineers were not told of the construction of tile drains on the Ward property, they would have had little chance of finding the tiles. He said that the construction of tiles would not have been evident on the surface of the land in 1974 because it had been 10 years since they were constructed. He remarked that without knowledge of the tiles, it would have been impossible for the 1974 Engineer to make an accurate determination of the watershed.

With respect to the topographic map which was divided into sub-watersheds by Mr. Kuntze, Mr. Bartlett said that he disagreed with Mr. Kuntze’s suggestion that the assessment of the areas historically within the Bateman Drain watershed, which have been drained by tiles into the Saxon Drain, should be split equally between the Bateman and Saxon Drains. He agreed that the practice of assessing an area of land where the subsurface drainage goes to one drainage works, and the surface drainage goes to a different drainage works, into both drainage works is common in the industry. However, he said the practice is usually based on the scenario where the surface water passes through the area without ponding or directly entering the subsurface drainage tiles. He noted on the Ward property, the areas involved will pond to a depth as much as 0.55 metres (22”) before they overflow to the Bateman Drain, leaving only the tile to drain the ponds into the Saxon Drain. Mr. Bartlett further stated the topographic map also suggests that there may be surface water draining from adjacent Bateman Drain watershed areas into the ponded areas served by Mr. Ward’s subsurface drains that outlet into the Saxon Drain.

Mr. Bartlett disagreed with Mr. Kuntze that the additional land being diverted into the Saxon Drain from the Bateman Drain will not impact the Saxon Drain. He testified the Saxon Drain does not have the capacity to accommodate the expanded watershed. To this end, he gave evidence that he calculated the capacity of the Saxon Drain tiles at their upper end (at Irish Drive) to be 147.7 l/s which matches the flow of 148.41 l/s from the Saxon Drain watershed based on a 25 mm (1”) drainage coefficient. He explained that, when the extra area from the Ward lands is included, it results in a flow of 168.66 l/s which exceeds the capacity of the tiles. Accordingly, he said all lands and road within the Saxon Drain watershed have not been receiving the level of protection of a 25 mm (1’) drainage coefficient which they paid for. Mr. Bartlett testified that Mr. Dobbin had only two options available to him; either provide the required capacity in the Saxon Drain or cut off Mr. Ward’s tiles. Noting that it would be expensive to increase the capacity of the Saxon Drain (perhaps as much as $50,000), he said he agreed with Mr. Dobbin’s recommendation to cut off Mr. Ward’s tiles.

Mr. Bartlett testified he had reviewed many Engineer’s reports from the 1970s and earlier. He said the drainage boundary maps and drawings attached to those reports were rarely drawn to an accurate shape or scale. Therefore, he said he disagreed with Mr. Kuntze’s analysis that the historical watershed for the Saxon Drain on Mr. Ward’s lands was larger than the 17 acres (6.9 ha) in the 1954 report or the 30 acres (12.1 ha) in the 1974 report, since he based the analysis on scaling the plans attached to the old drainage reports.

Mr. Bartlett agreed that Mr. Ward’s tile drains, which are recommended to be cut off by Mr. Dobbin, could be drained to the Bateman Drain and that he was aware of Mr. Jeffery’s estimate to do so in the amount of $4,410. However, he explained that since the Bateman Drain has not been worked on likely since 1929, improvements to the drain, including deepening, would be required in order to provide adequate drainage to lands and roads within its watershed.

With respect to water from the south side of Irish Drive entering Branch Drain No. 1, Mr. Bartlett said that he agreed with Mr. Dobbin. The alternative to draining the water on the south side of the road would be to install another tile along the south side of the road parallel to Branch No. 1 Drain. He said this would not be cost effective.

During cross examination by Ms. M’Garry, Mr. Bartlett agreed that it is the Engineer’s responsibility to determine the drainage watershed. However, he said that while Engineers are able to determine the extent and direction of surface flows, they must rely on historical records and information from the landowners when it comes to subsurface tiles.

Mr. Bartlett seemed unaware that one of the two Saxon Drain tiles was higher than the other at the head of the drain and that Mr. Ward could only connect to the lower of the two tiles. However, Mr. Bartlett was aware that because the tiles are interconnected, they act as a system.

Ms. M’Garry suggested to Mr. Bartlett that Mr. Ward’s tiles could not be considered a subsequent connection pursuant to Section 65(3) of the Drainage Act because they pre-dated the 1974 and later reports. Mr. Bartlett stated that in his opinion, the tiles are a subsequent connection regardless of when they were installed.

Evidence of Mr. John Wolfe, Witness for the Assessed Landowners

Mr. Wolfe testified he resides on the south side Irish Drive on a 200 acre (80.9 ha) parcel behind Mr. Ward’s farm but is not assessed on the Saxon Drain. He said he has lived at that location since 1957 but the farm has now been transferred to his son Grant Wolfe. He stated he was a drainage contractor between 1953 and 1967 and after that he was involved in the manufacturing of farm drainage machines. He indicated that he was very familiar with the drainage in the area.

Mr. Downs referred Mr. Wolfe to a series of photographs taken on April 13, 2013. Mr. Wolfe testified he had taken the photographs to show the conditions of the Ward farm and Wolfe farm after a rainfall. Looking at the photographs, Mr. Wolfe noted there was a lot less ponding of water on the Ward farm as compared to the downstream Wolfe lands. He did not speculate why there was more ponding on the Wolfe lands, but during cross-examination by Ms. M’Garry, he conceded that some of the backup on the Wolfe lands could have been the result of plugged or overburdened tiles on the Wolfe lands.

Evidence of Mr. Robert Robinson, Expert Witness for the Landowners

Mr. Robinson testified he is a farmer, a drainage contractor as well as, a licensed erosion control design contractor. He said he has been involved in farm drainage since 1972. He testified he was the contractor that installed the second Saxon Drain tile associated with the 2001 Engineer’s report. He stated he had reviewed Mr. Dobbin’s current Report and that he agreed with Mr. Dobbin’s recommendations which include blocking Mr. Ward’s 300 mm (12”) and 150 mm (6”) diameter tiles at the limit of the 30 acres (12.1 ha) watershed of the Saxon Drain. He said that when Mr. Ward extended his tiles, he drained more land into the Saxon Drain which he had not paid for and in doing so, harmed the downstream landowners. He explained that since Mr. Ward’s land is located upstream, his water enters the Saxon Drain tile first; that is, before the water from the downstream Wolfe lands. Mr. Robinson said that if Mr. Ward’s tiles are blocked as recommended by Mr. Dobbin, it will lessen the amount of water flowing in the Saxon Drain and will restore the Saxon Drain to the capacity the landowners paid for.

Mr. Robinson testified that Mr. Ward’s lands which have historically been in the Bateman Drain watershed should remain there and if Mr. Ward would like to drain his farm, he should ask for improvements to the Bateman Drain.

Evidence of Mr. Kenneth R. McCutcheon, P. Eng., Expert Witness for the Landowners

Mr. McCutcheon testified he is a Professional Engineer and has been a drainage contractor since 1977. He gave evidence that since the heads of the Saxon and Bateman Drains are roughly at the same elevation, water can move either direction through subsurface tiles if they are interconnected. He said that moving water from the Bateman Drain to the Saxon Drain would have an impact on the Saxon Drain. He explained that since the upstream water is at a higher elevation, it will enter the Saxon Drain first and keep the drain full for a longer period of time which will restrict the flow of downstream lateral tiles coming into the drain.

Mr. McCutcheon testified that the need to determine watershed areas is essential to apply fair outlet assessments. He said he had reviewed Mr. Dobbin’s Report as well as, the report prepared by Mr. Kuntze and noted that on a percentage basis, they are not far apart in their estimates of the Saxon Drain watershed. However, he said the capability to cross the watershed with subsurface drains has much more impact on the outlet capacity of the Saxon Drain for downstream landowners. Therefore, he said he agreed with Mr. Dobbin’s recommendations that any tiles on the Ward farm that cross the watersheds of the Bateman and Saxon Drains, should be blocked at the limit of the two watersheds. He said that once the tiles are blocked, it will restore the efficiency of the Saxon Drain to its original design.

Response Evidence of Mr. Ray Dobbin, Engineer who prepared the Report

Mr. Dobbin said he analysed the feasibility of connecting Mr. Ward’s blocked tiles to the Bateman Drain whose watershed they belong. Mr. Dobbin said his calculations showed that Mr. Ward can connect both blocked tiles to the Bateman Drain. However, he said there was one hole on Mr. Ward’s lands which is within the Bateman Drain watershed that could not be drained to the bottom due to lack of depth of the Bateman Drain.

Mr. Dobbin testified he agreed with the calculations done by Mr. Bartlett showing the capacity of the Saxon Drain is being exceeded because Mr. Ward is draining 5.2 ha (12.8 acres) of extra land to the Saxon Drain. He said the lands within the Saxon Drain watershed no longer receive the benefit of a 25 mm (1”) drainage coefficient to which it was designed.

Mr. Dobbin gave evidence that he included the area south of Irish Drive in the watershed for the Saxon Drain Branch No. 1 since that is where it naturally flows. He said that currently the water ponds on the south side of the road until it flows overland westerly to the Saxon Drain. The alternative to bring the water across the road would be to construct another drain along the south side of the road. He said that option would not be cost effective, particularly in view of the existence of a hydro pole, a fence and trees along the south side of the road. Mr. Dobbin confirmed that he became aware after he prepared his Report that there was no existing culvert across the road. However, he said the Road Authority is at liberty to install a culvert if they wish to eliminate the pond on the south side of the road and the lack of an existing culvert did not preclude his inclusion and assessment of lands on the south side of the road.

Mr. Dobbin confirmed the entire Saxon Drain tile system was designed to include both surface and subsurface water to a 25 mm (1”) drainage coefficient. While he is aware that Mr. Ward’s tiles do not currently have direct surface water inlets, he said that there is nothing to prevent Mr. Ward from draining his surface water into the tiles, including those tiles that currently extend beyond the Saxon Drain watershed.

Ms. M’Garry challenged Mr. Dobbin on the recommendations contained in his Report; however, Mr. Dobbin remained steadfast on all his recommendations. Ms. M’Garry put it to Mr. Dobbin that it is the Engineer’s duty to correctly establish the watershed boundary and that he and the previous engineers had failed to correctly establish the Saxon Drain watershed when they prepared their reports in 1974, 2001 and 2007. Mr. Dobbin said he relied on the number of acres shown in the schedule of assessment forming part of the historical reports rather than scaling the watershed on the historical drawings. He explained that the shape and small scale of the watershed on historical drawings was not suitable for scaling. He noted that Mr. Ward’s lands were assessed for 17 acres (6.9 ha) in the 1954 report, not 23 acres (9.3 ha) stated by Mr. Ward, and that in the 1974 report, the area was increased to 30 acres (12.1 ha by Mr. Spriet) which was later confirmed by Mr. Pletch in 1988. Mr. Dobbin said there was no reason for him to question the historical watershed when he prepared his 2001 and 2007 reports.

Ms. M’Garry put it to Mr. Dobbin that if the Engineers don’t know where the drainage boundary is, how is a farmer supposed know where it is. Mr. Dobbin responded in his experience, farmers know how many acres they are draining to a particular outlet and that in this case, he was convinced that Mr. Ward knew how many acres he was draining into the Saxon Drain.

Ms. M’Garry challenged Mr. Dobbin on his inclusion of water from the south side of Irish Drive into the Saxon Drain Branch No. 1 since there had been no petition from the Road Authority or the owners of land on the south side of the road. Mr. Dobbin stood by his decision to include drainage from the south side of the road; he said that a separate petition was not required and that the Road Authority could install a culvert across the road without any further authorization or report under the Drainage Act.

Ms. M’Garry also put it to Mr. Dobbin that Mr. Ward does not receive the full benefit of a 25 mm (1”) drainage coefficient on the Saxon Drain because Mr. Ward only has access to the lower of the two Saxon Drain tiles. Mr. Dobbin asserted that the two tiles comprising the Saxon Drain are interconnected and as such act a single drainage system that does indeed provide all lands and road within the watershed, including Mr. Ward’s land, protection to a 25 mm (1”) drainage coefficient.

Arguments by Ms. Valerie M’Garry, Counsel for the Appellant

Ms. M’Garry argued Mr. Ward should not be required to disconnect any of his tile drains. She pointed out the drainage pattern of the Ward property was established in 1966 when Mr. Ward tiled his land. She stated there was no “red line” on the ground showing Mr. Ward the limit of the Saxon Drain watershed so he tiled his land in the most effective way he could. Ms. M’Garry noted the Saxon Drain was an open ditch up to 1974 when it was converted to a closed tile drain. She suggested that in 1974, the Engineer (Mr. Spriet) increased Mr. Ward’s drainage area to 30 acres (12.1 ha) because Mr. Ward volunteered that his farm was actually 125 acres (46.1 ha) instead of 100 acres (40.5 ha) which had previously been used by Engineers.

Ms. M’Garry argued the Engineers who prepared previous reports had done a poor job of defining the limits of the watershed and the plans attached to their reports were poorly drawn. She noted that in preparing the 1974 and 2001 reports, Messrs. Spriet and Dobbin merely accepted the historical watershed plans without making sure they were accurate. She argued that if it has taken the Engineers until now to identify the correct watershed, surely Mr. Ward cannot be faulted for not knowing the location of the watershed boundary when he tiled his land in 1966. Ms. M’Garry further pointed that in 1974 Mr. Spriet had said Mr. Ward had not tiled outside the Saxon Drain watershed.

Ms. M’Garry stressed that any adverse impacts on downstream lands are all theoretical but in fact, there was absolutely no evidence of any actual adverse impacts on downstream lands since the Ward lands were tiled in 1966. She noted that while all the other landowners get a 1” (25 mm) drainage coefficient, Mr. Ward only gets a 5/8” (16mm) coefficient because he can only connect to the lower of the Saxon Drain tiles.

Ms. M’Garry alleged the onus was on Mr. Dobbin to ask Mr. Ward about his tiles when he was preparing his reports. She said that Mr. Ward did not tell Mr. Dobbin about his tiles because he was not asked.

Ms. M’Garry argued that water from the south side of Irish Drive should not be brought into the Saxon Drain Branch No.1 noting that the road provides a natural divide. She said the affected parties on the south side of the road should look after their own problems and that there is no benefit to Mr. Ward to bring water across the road.

With respect to the cost of the topographic survey undertaken by Mr. Dobbin, Ms. M’Garry argued the cost should be borne by the Municipality since they asked for the survey to be done. In the very least, she said that the cost should be spread amongst the ratepayers on both the Saxon and Bateman Drains.

Ms. M’Garry stressed that Mr. Ward has never refused to pay his fair share of the assessment. She said that Mr. Ward’s affected area is to be corrected to what has now been identified as the watershed and Mr. Ward is willing to pay what is required based on that area.

Ms. M’Garry pointed out Mr. Kuntze’s report lays out in detail the changes to Mr. Dobbin’s Report being sought by Mr. Ward. She added that if the Tribunal is inclined to accept Mr. Dobbin’s Report, in the very least, the Tribunal should delete Mr. Dobbin’s recommendation nos. 7 and 8, since neither Council nor the landowners can be obligated to petition for drainage or carry out Section 78 maintenance on the Bateman Drain.

Arguments by Mr. Paul Downs, Counsel for the Assessed Landowners

Mr. Downs stated that his clients support all the recommendations contained in Mr. Dobbin’s Report.

Mr. Downs argued that Mr. Ward has been bringing a lot of water into the Saxon Drain watershed without the permission of the Municipality. He said the evidence is that Mr. Ward’s portion of the Saxon Drain watershed was 17 acres (6.9 ha) in 1966, not 23 (9.3 ha) acres as claimed by Mr. Ward, and that it was increased to 30 acres (12.1 ha) in 1974. He pointed out since we now know that Mr. Ward’s actual watershed is 42.7 acres (17.3 ha), it is apparent that Mr. Ward evaded assessments on the Saxon Drain since he installed his tiles in 1966.

Mr. Downs pointed to Mr. Dobbin’s evidence that Mr. Ward told him that he knew he was outside the watershed when he installed his tiles in 1966 and that he had tiled to the Saxon Drain because he considered it a better outlet. Nevertheless, Mr. Ward installed his tiles to drain 43 acres (17.3 ha) instead of the 17 acres (6.9 ha) for which he was assessed. Mr. Downs argued that as a farmer, Mr. Ward knows the difference between 17 (6.9 ha) and 43 acres (17.3 ha) and that Mr. Ward has known all along that he tiled outside of the watershed. Furthermore, Mr. Downs pointed out when Mr. Ward replaced his tiles in 2002, he replaced them with bigger tiles at a steeper grade, which further increased the flow into the Saxon Drain.

Mr. Downs affirmed that because Mr. Ward brought in water from outside the watershed, his clients have been prejudiced by having to pay a larger share of the assessment on the Saxon Drain since 1954 while at the same time receiving a lower level of protection than what they paid for. He said the evidence shows Mr. Ward contravened Section 65 of the Drainage Act when he brought in water from outside the watershed in 1966. He argued that Mr. Ward should not benefit for his noncompliance with the Act.

Mr. Downs pointed to Mr. Jeffery’s evidence that Mr. Ward can redirect his tiles to the Bateman Drain for a cost of $4,410. Accordingly, Mr. Downs argued that Mr. Ward is not prejudiced by Mr. Dobbin’s recommendation to cut off the tiles because he has saved at least that amount for not paying his proper assessment to the Saxon Drain since 1966

Mr. Downs suggested that Mr. Ward would have been better served to spend his money on the improvement of the Bateman Drain since that drain has received little in the way of maintenance or improvements since 1929. He noted that Mr. Ward is assessed some 85% to the Bateman Drain and about 45% to the Saxon Drain. As such, he said it’s not surprising that Mr. Ward has never petitioned for the repair or improvement of the Bateman Drain

Arguments by Ms. Janet McGuigan-Kelly, Counsel for the Municipality

Ms. McGuigan-Kelly’s arguments were somewhat aligned with those of Mr. Downs. She noted that Mr. Dobbin had just learned at the hearing that Mr. Ward had increased the size and grade of his 1966 tile drain when he replaced the tiles in 2002. She said that he had also just learned that in 1966 Mr. Ward relocated the Bateman Drain tile without the approval by the Municipality.

Ms. McGuigan-Kelly pointed out that in 2001, Mr. Dobbin designed the Saxon Drain tile to accommodate 30 acres (12.1 ha) of Mr. Ward’s lands, and not 42.7 acres (17.3 ha) which was discovered by the recent topographic survey undertaken by Mr. Dobbin.

Ms. McGuigan-Kelly noted that despite Mr. Kuntze’s evidence that Mr. Ward does not have any surface water entering his tiles, Mr. Ward, or a subsequent owner, could change his mind.

Further, Ms. McGuigan-Kelly pointed out that Messrs. Bartlett, Robinson and McCutcheon all support Mr. Dobbin’s recommendations in his Report.

Findings

The Report by Mr. Dobbin for the Saxon Drain Branch No.1 which was prepared under Section 4(2) of the Drainage Act, proposes a project with an estimated cost of only $12,204. Because Mr. Dobbin had noted evidence of an expanded watershed on the Appellant’s land, the Municipality subsequently instructed Mr. Dobbin to make an inspection of the Saxon Drain watershed and prepare preliminary report under Section 66 (now Section 65) of the Act. Mr. Dobbin then undertook a topographic survey of part of the watershed and although he corresponded with the Municipality on several occasions regarding the issue, he does not appear to have prepared a preliminary report under Section 65. Instead, Mr. Dobbin included his findings under Section 65 of the Act in his Report for the Saxon Drain Branch No. 1. When the cost of the watershed investigation of $3,560 is added to proposed works for Saxon Drain Branch No.1, the overall cost for the project included in the Report becomes $15,764.

While it is somewhat unusual to blend a Section 4(2) report with a Section 65 report into a single Engineer’s Report, the Tribunal finds nothing in the Act that precludes this approach. Given the connectedness of the Section 4(2) and Section 65 issues, the Tribunal finds that the Engineer’s approach to be reasonable under the circumstances. The eight recommendations made by Mr. Dobbin in his Report are actually a blend of Section 4(2) and 65. Although the appeal was filed under Sections 48(1) and 54(1) of the Act and there were indeed some minor items to be decided on the design and assessment of the Saxon Drain Branch No. 1, the most contested issues at this hearing had more to do with the overall Saxon Drain watershed under Section 65 of the Act.

The Engineer, Mr. Dobbin and the Assessed Landowners alleged that Mr. Ward contravened the Act when he drained additional lands into the Saxon Drain for which he was not assessed, without seeking the permission of the Municipality. The tribunal agrees that Mr. Ward did drain additional lands into the Saxon Drain without seeking permission and that he was not assessed for those additional lands. Based on the topographic survey done by Mr. Dobbin which was undisputed by Mr. Kuntze, it is now evident that in 1966, Mr. Ward drained 42.7 acres (17.2 ha) into the Saxon Drain which far exceeds the 17 acres (6.9) for which he was assessed in 1966 and the 30 acres (12.1 ha) for which he was assessed in 1974.

The undisputed evidence is that Mr. Ward cleared and tiled his land in 1966. Then, in 2002 and 2009, Mr. Ward replaced those same tiles, in some cases with larger tiles at a steeper grade. During cross examination, Mr. Ward skirted around questions about whether he knew in the mid-1960s that he was tiling beyond the Saxon Drain watershed and that he was bringing in more than 17 acres (6.9 ha) (or 23 acres (9.3 ha) as claimed by Mr. Ward) than he was assessed for into the Saxon Drain. After being pressed by Ms. McGuigan-Kelly, Mr. Ward admitted that he was aware that he was bringing in more than 23 acres (9.3 ha) but said that it did not matter at that time because the Saxon Drain was an open ditch.

The Tribunal was not swayed by Mr. Kuntze’s attempt to demonstrate Mr. Ward had not tiled beyond the Saxon Drain watershed by scaling the shape and size of the watershed shown on the plans attached to the historical Engineer’s reports. The Tribunal was also not swayed by his opinion that Mr. Ward cannot be faulted for tiling beyond the Saxon Drain watershed boundary because past Engineers failed to properly identify and show the watershed on their plans and therefore, Mr. Ward could not be expected to locate the watershed boundary on the ground. There was no evidence to suggest that Mr. Ward made any attempt to contact the Municipality in 1966 for help in identifying the watershed. In fact, the evidence is that Mr. Ward not only tiled beyond the 17 acres (6.9 ha) watershed for which he was assessed at that time, but he also relocated a section of the Bateman Drain tile, again without contacting the Municipality. Injuring a drainage works in this manner is not permitted by the Act.

The Tribunal is convinced that Mr. Ward knew in 1966 that he was tiling more acres (hectares) into the Saxon Drain watershed than what he was assessed for.

Mr. Dobbin’s evidence, as validated by Mr. Bartlett, is that he used the drainage coefficient method to design the Saxon Drain tiles to a level of 25 mm (1”) in 24 hours. The Tribunal notes that the shape of the watershed on the Ward lands bears no relevance to the design of an outlet using the drainage coefficient method. However, the number of acres (hectares) drained has a direct relationship on design and subsequently the assessment.

The Tribunal does not accept Ms. M’Garry’s argument that Mr. Ward did not tell Mr. Dobbin and the Engineer who prepared the 1974 report (Mr. Spriet) about his tiles because they did not ask him. As a landowner, particularly as the petitioner for the new drain, Mr. Ward ought to have provided all relevant drainage information to Mr. Dobbin. It is precisely, Mr. Ward’s failure to disclose all relevant information to Mr. Spriet in 1974 and Mr. Dobbin in 2001 and 2007 that led to a design of the Saxon Drain tiles based on a watershed of 30 acres (12.1 ha) in lieu of the 42.7 acres (17.2 ha) that he was actually draining. Mr. Ward had at least four opportunities to disclose the information about his tiles; to Mr. Spriet in 1974 and to Mr. Dobbin in 2001, 2007 and 2011, but failed to do so.

Mr. Kuntze suggested the size of the 2001 Saxon Drain tile would not have changed as a result of the extra watershed area from the Ward land and that the reduction in the drainage coefficient on the drain is an insignificant 3 mm (1/8”). The Tribunal believes that a 3 mm (1/8”) reduction in the drainage coefficient is indeed significant, especially considering that the extra watershed actually belongs in the Bateman Drain which has an overall drainage coefficient of only 9 mm (3/8”). Messrs. Dobbin, Bartlett, Robinson and McCutcheon all agreed that the downstream landowners are indeed being impacted because the drain is overburdened and they do not receive the benefit of a 25 mm (1”) drainage coefficient for which they paid for. Accordingly the Tribunal finds that all landowners and road currently within the Saxon Drain watershed are being adversely impacted by the extra land being drained by Mr. Ward.

The Tribunal does not accept Mr. Kuntze’s argument that Mr Ward does not receive the benefit of a 25mm (1”) drainage coefficient because he is only connected to the lower of the two Saxon Drain tiles. The evidence from Mr. Dobbin, corroborated by Mr. Bartlett, is that the two Saxon Drain tiles are interconnected and act as a single system to provide capacity to a 25 mm (1”). As a single system, the two tiles provide the same capacity as if there was only a single, appropriately sized tile. It is noteworthy that Mr. Ward was connected to the higher Saxon Drain tile dating back to 1974 and it was not until after the lower tile was constructed in 2001 that he changed his connection to the lower tile by increasing both the slope and size of the his private tiles.

Since Mr. Ward drained additional lands into the Saxon Drain watershed and since the Saxon Drain is being impacted by the drainage from those additional lands, the Tribunal finds that Mr. Dobbin was justified in making his recommendations nos. 4 and 5 that, if adopted, would require Mr. Ward to disconnect his tiles as described in his Report. For similar reasons, the Tribunal also finds Mr. Dobbin’s recommendation no. 6 to be justified.

With respect to Mr. Dobbin’s recommendation nos. 7 and 8, the evidence clearly suggests that unless the Bateman Drain is repaired or improved, surface flow surcharge will continue to overburden the Saxon Drain. Under the circumstances, the Tribunal finds that Mr. Dobbin’s recommendations for the repair and improvement to the Bateman and Stevenson Drains are justified and appropriate. However, having those recommendations embedded in the Saxon Drain Report will strip the landowners on the Bateman and Stevenson Drains of their rights to be involved in any process under the Act to repair and improve those drains.

Based on the evidence, the Tribunal finds that improvements to the Bateman Drain are likely required in the south portions of lots 5 and 6 and the Stevenson Drain downstream as necessary to provide sufficient outlet for lands within its watershed and to the branch of the Stevenson drain in lot 5, range 2 north and downstream as necessary to provide sufficient outlet for lands within its watershed. The Tribunal also finds that consideration should be given whether to extend a branch of the Bateman Drain west to the property line between lots 6 and 7 to provide outlet for surface waters from the bush area in the south half of lot 7 and approximately 1.7 hectares (4.2 acres) of subsurface drainage from that property. In addition to providing adequate drainage to their respective watersheds, any potential repairs and/or improvements to the Bateman and Stevenson Drains should be undertaken with a view of relieving undue surcharge to the Saxon Drain. Both of these improvements may be made under Section 78 of the Act, and an Engineer should be appointed to prepare a report (or reports). The processes under the Act, including appeals, should be followed.

The Tribunal has considered the Appellant’s objection to including water from the south side of Irish Drive into the Saxon Drain Branch No. 1. It is noteworthy the “area requiring drainage” used by the Engineer to determine the validity of a Section 4(2) petition at the start of the process is not necessarily the same as the drainage area or watershed of the drain. In this case, the Tribunal finds that the Engineer is justified in including the road and lands on the south side of the drain because he determined that they are within the watershed of Saxon Drain Branch No.1 and as such do not require another Section 4 petition as suggested by Ms. M’Garry.

The Tribunal has also considered the Appellant’s objection to his assessment for the cost of the topographic survey and suggestion that the cost should be borne by the Municipality because they asked for it. Since the topographic survey was necessitated by discovery of evidence by Mr. Dobbin that Mr. Ward had tiled outside of the Saxon Drain watershed, Mr. Dobbin could have easily assessed the entire cost of the survey to the Ward lands. However, Mr. Dobbin correctly recognized that the results of the survey benefited the entire Saxon Drain watershed. Under the circumstances, the Tribunal is satisfied with the assessments made by the Engineer for the cost of the topographic survey.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeals by Jeanette and Thomas Patrick Ward under Section 48(1) and 54(1) of the Drainage Act are denied in part.
2. Recommendation nos. 7 and 8 from the Report shall not form part of any by-law regarding the Saxon Drain.
3. The Municipality shall appoint an Engineer under Section 78 of the Act to prepare a report (or reports) on possible improvements to the Bateman Drain in the south portions of lots 5 and 6 and the Stevenson Drain downstream as necessary to provide sufficient outlet for lands within its watershed, and to the branch of the Stevenson drain in lot 5, range 2 north and downstream as necessary to provide sufficient outlet for lands within its watershed. Further, the appointed Engineer shall consider whether to extend a branch of the Bateman Drain west to the property line between lots 6 and 7 to provide outlet for surface waters from the bush area in the south half of lot 7 and approximately 1.7 hectares (4.2 acres) of subsurface drainage from that property. All processes under the Act, including appeals, shall be maintained for a report (or reports) on these possible improvements.
4. 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 the own costs.

Dated at Maidstone, Ontario this 4th day of June, 2013.