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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) [Interim Decision #1] Town of Fort Erie and City of Port Colborne

Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) [Interim Decision #1] 2015ONAFRAAT20

STATUTE:

Drainage Act

HEARING:

August 5, 2015

DATE OF DECISION:

September 28, 2015

2015-20

NEUTRAL CITATION:

2015ONAFRAAT20

ZAVITZ Municipal Drain, Sherkston North Branch Drain,

East & West Trail Branch Drains

Town of Fort Erie and City of Port Colborne

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 Gary R. Clee of Port Colborne, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision; and by the City of Port Colborne from the decision of the Court of Revision and a section 72(1) request for review of the Engineer’s Account pertaining to the Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains.

Before:

Paula Lombardi, Vice-Chair; Andrew McBride, Member; Richard Smelski, Member

Appearances:

Gary Clee, Appellant

Henri Bennemeer, Drainage Superintendent, City of Port Colborne, Appellant

Tim Winterton, Engineer for AMEC Environment & Infrastructure

Dave Maiden, Drainage Superintendent, Town of Fort Erie, Respondent

Kelly M. Walsh, Director Infrastructure Services (A), Town of Fort Erie

INTERIM DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Town of Fort Erie on August 5, 2015. The Engineer’s report dated July 29, 2014 for the Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (“Report” or “Engineer’s Report”) was prepared by AMEC Environment & Infrastructure and submitted by Mr. Paul D. Smeltzer, P.Eng., (“Engineer”). The appeals to the Tribunal were filed by Mr. Gary R. Clee and the City of Port Colborne (collectively the “Appellants”).

Laura Bubanko, Clerk of the Town of Fort Erie, performed the duties of 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 July 20, 2015, as proof that all parties had been served with the notice of hearing.

Mr. Mike Woronchak and Ms. Lisa Neal assessed landowners were made parties to the appeal.

Overview

The Report, dated July 29, 2014, was prepared by AMEC Environmental & Infrastructure (“AMEC”). Mr. Paula Smeltzer, P. Eng., a professional engineer with AMEC, was designated under section 8(2) of the Drainage Act (“Act”) with the overall responsibilities for the Report (“Engineer”).

On October 12, 2010 the Town of Fort Erie (“Fort Erie”) approved the appointment of the Engineer to prepare an Engineer’s Report for the portion of Zavitz Drain situated within Fort Erie.

There is considerable history to the preparation of the Engineer’s Report as AMEC was not the first engineer involved in this project. In 2004 and 2006, the need for improvements to the Zavitz Drain was recognized by Fort Erie and Port Colborne with the appointment of Wiebe Engineering to prepare an Engineer’s Report on the Zavitz Drain. In November 2004, Wiebe Engineering Group Inc. (“Wiebe Engineering”) was appointed by Fort Erie to prepare an engineer’s report for the Baer, Schooley, Zavitz and Outlet Drains in accordance with the provisions of the Act. Both municipalities have rescinded the by-laws appointing Wiebe Engineering as Wiebe Engineering was unable to continue to provide engineering services. Wiebe Engineering was replaced as the engineer on record as Wiebe Engineering is no longer providing drainage or engineering services to either municipality.

Fort Erie is considered the initiating municipality under the provisions of the Act. The purpose of the Report is to determine whether drainage works are required, to quantify the works through an engineering investigation and to assess the cost of the drainage works in accordance with the provisions of the Act.

The Engineer conducted a review of the existing Zavitz Drain and proposed the following works:

• cleaning and grubbing along the 2,901 metres of the existing drain plus the clearing of a work area 10 metres wide to permit drain access within Fort Erie and Port Colborne;

• Cleaning of the municipal culverts at Holloway Bay Road and Pleasant Beach Road;

• Replacement of the municipal culvert at Mathews Road;

• Replacement of private culverts on the properties identified as Roll No. 20018336000000 (Clark); Roll No. 2711040000105300 (Damude); and, Roll No. 271104000138400 (Clee); and,

• Removal of the private culvert on the property identified as Roll No. 20018337010000 (Beach).

Port Colborne Engineering & Operations Report #2011-20 (April 11, 2011) recommended to City Council that a petition for a Branch Drain be investigated to service the lands south of the Friendship Trail within the watershed of the Zavitz Drain. On May 12, 2011, the City of Port Colborne (“Port Colborne”) endorsed the motion put forward by staff and approved the appointment of the Engineer in accordance with Sections 4 and 78 of the Act to prepare an Engineer’s Report for that portion of Zavitz Drain situated within the City of Port Colborne as well as to provide the designs and assessments for a new Sherkston North Branch Drain (“North Branch”) and two new drains to be known as the East and West Trail Branch Drains.

The Engineer reviewed the options for the Branch Drains, as provided by the City of Port Colborne, and revised designs where approved. The North Branch Drain and East and West Trail Branch Drains have been designed to improve drainage in the areas of Sherkston Road, Pleasant Beach Road, Friendship Trail and the adjacent residential lands.

The North Branch Drain will commence on the north side of Sherkston Road and extend northerly, between the Neal and Philip properties, to the Friendship Trail. The North Branch Drain will be conveyed under the Friendship Trail, via a new 900 mm HDPE culvert, and then extend northerly through the Cosby and Lochhead properties to intersect the existing Zavitz Drain.

The East and West Trail Branch Drains are proposed as open drains to be constructed in the existing south ditch of the Friendship Trail, which is a paved community walking/biking trail located on a former railway property, now owned by the City. The East Branch is proposed to be 312 metres in length and will convey flows westerly to its convergence with the North Branch. The West Branch is proposed to be 480 metres in length, extending from west of Pleasant Beach Road including the resetting of the culvert under Pleasant Beach Road, and will convey flows easterly to its connection with the North Branch.

The Branch Drains will convey drainage from the properties bounded by the Friendship Trail to the north, the Hayter (Roll No. 271104000119700) / Vorstenbosh (Roll no. 271104000119800) property line to the west, Sherkston Road to the south, Holloway Bay Road and a portion of the Eberly Trucking property to the east, as well as a small portion of the Cosby and Lochhead properties north of Friendship Trail and south of the main Zavitz Drain.

The area drained by the Zavitz Drain is approximately 278.4 hectares. The area within the overall watershed that is to be drained by the North Branch Drain and the East and West Branch Drains, situated in the City of Port Colborne, is approximately 15.49 hectares. The Zavitz Drain outlets to the Outlet Drain at Port Abino Road, where the Outlet Drain travels north to Beaver Creek and then into the Niagara River.

The Engineer’s Report indicates that the estimated cost of the drainage work along the main Zavitz Drain is $316,033.97, with $72,667.26 assessed to Fort Erie private property owners, $75,437.11 assessed to Port Colborne private property owners and the remaining costs assessed to Port Colborne, Fort Erie, the Region of Niagara, the Province of Ontario and various utilities.

The estimated cost of the work along the North Branch Drain amounts to $61,619.90, with $15,835.59 being assessed to private property owners in Port Colborne and the remainder to Port Colborne. The total estimated cost of the East Trail Branch Drain is $13,785.71, with $3,784.94 being assessed to private property owners in Port Colborne and the remainder to Port Colborne. The total estimated cost of the West Trail Branch is $21,512.76, with $2,703.65 being assessed to private property owners in Port Colborne and the rest to Port Colborne.

The Engineer was provided with a considerable amount of background information on the Zavitz Drain by both Fort Erie and Port Colborne. The information included a chronology dating back to 1890, numerous prior engineers’ reports, petitions from property owners regarding drainage issues, by-laws developed to address the drainage issues, and records of the Courts of Revision.

Wiebe Engineering was appointed by Fort Erie in July 2005 to prepare a new Engineer’s Report in accordance with the provisions of the Act for the Zavitz, Baer, Schooley, and Outlet Municipal Drains. While Fort Erie was the initiating municipality, Port Colborne appointed Wiebe Engineering to prepare an updated Engineer’s Report for the repair and improvement of the portion of the Zavitz Drain located within Port Colborne. Wiebe completed several meetings and discussions with landowners in the drainage area and submitted a draft Final Engineer’s Report to Fort Erie on July 21, 2006. A copy of this draft report was provided to AMEC as background information.

AMEC held numerous meetings with property owners in the drainage area but also took into consideration the comments received by Wiebe during its consultation period. The Engineer’s Report confirms that the design of the Zavitz Drain was undertaken based on field information obtained by Wiebe, as confirmed by AMEC in the fall 2010 and spring 2011.

Issues

1. Should the assessment as set out in the Engineer’s Report be amended?

2. Are the engineering fees to prepare the report and the allocation of those fees between Fort Erie and Port Colborne reasonable in the circumstances?

Evidence

Mr. Tim Winterton, P. Eng., on behalf of AMEC Environment & Infrastructure

Mr. Winterton was the Engineer who appeared on behalf of AMEC. The engineer who prepared the report, Mr. Smeltzer, is no longer employed by AMEC. Mr. Smeltzer attended meetings with the landowners and the municipality, was responsible for the preparation of the Report, and signed the Report.

In his presentation and overview of the report, Mr. Winterton indicated that the Wiebe Report, along with everything completed by Wiebe Engineering in the review of the municipal drainage in the area, was provided to, and taken into account by, AMEC. The Engineer presented the Tribunal with an overview of the Zavitz, North Branch, East and West Trail Branch municipal drains. Mr. Winterton reviewed the estimated costs of the work associated with the Zavitz Drain and indicated that approximately $107,611 was assessed to Port Colborne and $208,423 was assessed to Fort Erie representing a total of $316,034. All of the costs associated with the North Branch and the East and West Trail Branch drains were allocated to Port Colborne.

Mr. Winterton confirmed that no allowances under Sections 29 and 30 of the Act were granted for the East and West Trail Branch Drains. Mr. Winterton indicated that the existing ditches on the south side of the Friendship Trail represent an integral component of the Trail and the proposed drains will not result in any further loss of land nor increase encumbrances to the trail system. The existing ditch being incorporated into this drain has little compensation value due to its existing condition and the extent of improvements required.

A high level overview of the Report was provided by Mr. Winterton who admitted that he was not overly familiar with the Report as he had little involvement in its preparation. Mr. Winterton confirmed that AMEC had been awarded the work on the drain in response to a Request for Proposal. Mr. Winterton confirmed that he was not aware of when the drain was last maintained but suspected that it was more than sixty years ago.

In response to questions from the Tribunal, Mr. Winterton stated that no allowances were provided under section 29 for land taken along the Zavitz Drain as it is an existing Drain. Only allowances under section 30 were provided for damage to lands and crops. However, allowances were made for the North Branch under sections 29 and 30. Mr. Winterton indicated that he was not exactly sure how the assessments were calculated but thought it was based on the length of drain passing through each property and the length of drain downstream of each property.

Mr. Winterton advised the Tribunal that the engineering costs associated with the Wiebe Report were added into the costs and assessments of the Zavitz Drain only.

Ms. Lisa Neal, Landowner

Ms. Neal attended the hearing and provided a letter to the Tribunal that was read by Mr. Bennemeer. This letter was marked as Exhibit 3. Ms. Neal’s property is municipally identified as 5576 Sherkston Road and is located on the north side of Sherkston Road. The property situated to the east and abutting Ms. Neal’s property is owned by Paul and Karen Philip. Ms. Neal expressed concern with the proposed construction of the drain on her property and the potential harm that could occur to her existing fence, trees and septic tile bed. Also, one of the trees has considerable sentimental value as it was planted in honour of Ms. Neal’s son.

Ms. Neal also expressed concern about the assessment to her property and any clean up required as a result of the construction of the drainage works. At the hearing, Mr. Bennemeer agreed to discuss these issues with Ms. Neal and investigate potential solutions with Mr. Winterton and, if necessary, an arborist.

Mr. Gary R. Clee, Appellant

Mr. Clee expressed concerns with the assessment applied to his property and, in his opinion, the assessment was not equitable as compared to other properties. Mr. Clee provided the Tribunal with an appeal packaged that included numerous photographs and maps. Mr. Clee’s opinion was that the benefit obtained from the drain is not equitable to downstream properties.

Mr. Clee provided an aerial map showing that the majority of his thirty-three (33) acre (13.4 hectares) property, with the exception of a manicured area of approximately 4 acres (1.6 hectares), is left as a naturalized area. Mr. Clee confirmed that the property is not cultivated and is an overgrown, forested area. Mr. Clee’s concern was that the outlet assessment applied by AMEC does not accurately reflect the use of the land as it is not used for agricultural purposes nor is it developed. Mr. Clee indicated that the assessment should be based on the current use of the land which is primarily a naturalized area. The assessment indicates that Mr. Clee’s property consists of 12.3 hectares of cultivated land which is disputed by Mr. Clee.

In response to questions from the Tribunal Mr. Clee confirmed that the property is zoned agricultural. Mr. Clee indicated that while his parents farmed the property at one point, he has never farmed the property. Mr. Clee did not reforest the land, he just let it grow back to a naturalized state. Mr. Clee is of the opinion that a fair assessment would take into consideration the naturalized area.

Mr. Larry Woronchak representing Michael Woronchak, Landowner

Mr. Woronchak expressed concern about a portion of the Outlet Municipal Drain on his property that was recently cleaned out. It was Mr. Woronchak’s understanding that when the cleaning took place, the excavated material was to be put into his adjacent farm field, but instead the soil was trucked away. Mr. Woronchak indicated that he had hoped to be in a position to put the silt and topsoil into the field to build up a low area so that it could be more easily drained. Mr. Woronchak was advised that, since this is an issue with the Outlet Drain rather than the Zavitz Drain, the Tribunal does not have the jurisdiction to make an order to resolve the situation.

Mr. Woronchak also indicated that there was no new culvert proposed to be installed in the Zavitz Drain on their property. The Woronchaks had one culvert on the drain that was old and collapsing but AMEC seems to have overlooked this culvert and did not show it as being replaced as part of the drainage work. Since the existing culvert was not usable, the Woronchaks put in a new culvert this past spring, at their own cost and expense.

In questioning from the Tribunal, it was recommended that AMEC include the removal and reinstallation of this new culvert to the proper depth and slope, as part of the drainage work undertaken under this report, without any extra assessment to the Woronchaks, since they were supplying the culvert pipe. The engineer agreed that this work could be incorporated into the project without any problem, conditional on confirmation that the culvert is large enough. Upon questioning, Mr. Woronchak advised that the culvert is 5 feet (1500 mm) in diameter. The parties agreed that the culvert is likely large enough since it is the same size as the new one being proposed upstream on the Clark property.

Mr. Woronchak also indicated that they are unable to move some of their farm equipment along Matthews Road since the installation of the new culvert, as a result of the location of the new guard rails. According to Mr. Woronchak the guardrails have been constructed too close together at 19.5 feet and his equipment is 20.5 feet in width. Mr. Maiden, the Drainage Superintendent, advised Mr. Woronchak that the blueprints indicate a requirement for 21 feet between the guardrails. The municipality confirmed to the Tribunal that the area was recently measured, at the request of Mr. Woronchak, and advised that it currently meets the 21 feet requirement.

Mr. Henri Bennemeer, Drainage Superintendent, City of Port Colborne, Appellant

Mr. Bennemeer advised the Tribunal that there may be an issue with the location of the watershed boundary at Nigh Road due to roadside ditching not being undertaken in the past when the Zavitz Drain location was changed. Mr. Maiden agreed that this needs to be confirmed in the field and offered to have the Fort Erie staff survey the area to determine if the roadside ditches need to be regraded to conform to the watershed boundary as shown on Plan E-1A of the Report. Subsequent to the hearing, in an email dated August 19, 2015, Mr. Maiden advised that the survey had been completed and revealed “… that the watershed boundary indicated in the engineer’s report is representative of what exists in the field.” Accordingly, no action is required by the Tribunal on this issue.

Mr. Bennemeer’s testified that the assessments as set out in the Report against the lands and roads in Port Colborne are approximately ten percent higher (10%) than what is set out in prior reports. Mr. Bennemeer expressed concern about the amount of assessment being allocated to the lands and roads in Port Colborne for the Zavitz Drain and the amount of the Engineer’s fees in general.

Mr. Bennemeer indicated that he supports Mr. Clee’s appeal and agrees with the information brought forward by Mr. Clee.

Regarding the proposed new Branch Drains, while Mr. Bennemeer understands that the Hamlet of Sherkston, part of Sherkston Road, part of Pleasant Beach Road and the Friendship Trail will be gaining a legal and sufficient outlet to the Zavitz Drain which is important, Mr. Bennemeer stated that Port Colborne is shocked at the amount of the assessment levied to the roads and the Friendship Trail. Approximately 72% of the costs for the East Trail Branch have been assessed to Port Colborne, 87% of the West Trail Branch, and 74% of the North Branch.

Despite these high assessments, Mr. Bennemeer did acknowledge that it would not be reasonable for Port Colborne to request that its assessment be reduced at this point in the process, as that would result in higher costs to the private landowners. Mr. Bennemeer did recommend that the maintenance schedules should be revised to reflect a fairer assessment to the City of Port Colborne but the assessment schedule for the proposed construction work should be left as currently drafted.

When asked by the Tribunal what Mr. Bennemeer considered an acceptable allocation between Port Colborne and the private residents on the Branch Drains, Mr. Bennemeer indicated that, in his opinion, the split should be approximately 50/50. The land that the Friendship Trail is built on is a former railway line, it is 66 feet in width, but the trail itself is only approximately 10 feet wide and the rest of the area is wooded. Port Colborne initially requested that the drainage works be constructed on the private lands so as not to lose vegetation along the trail, but the Engineer did not want to pursue that route because of the ponds and fences located on the properties backing onto the trail. However, Mr. Bennemeer noted that when the existing buffer is lost, the area residents in the Village will need to create their own buffer.

In Mr. Bennemeer’s opinion, the legal outlet for Sherkston Road, and the roadside ditching that will follow, are imperative, otherwise the front of the properties will continue to have substandard drainage.

On the issue of the assessments for the Zavitz Drain only, Mr. Bennemeer noted that in prior engineering reports the assessments to Port Colborne were approximately 48% of the total cost. However, this Engineer’s Report allocates 58% of the cost of the Zavitz Drain to Port Colborne with the Matthews Road bridge being removed from the work. Mr. Bennemeer did acknowledge that Port Colborne is trying to create improved stormwater management for a hamlet to correct poor planning in the past.

Mr. Bennemeer explained that the Wiebe Engineering Report covered four municipal drains, that is, the Baer, the Schooley, and the Outlet, as well as the Zavitz. Mr. Bennemeer testified that while the Wiebe Report was in final draft form, and near completion, it was being held up by the Department of Fisheries and Oceans.

Mr. Bennemeer explained that he understood that Wiebe Engineering was paid $47,000 in engineering fees for the work it undertook on the four drains and that, of the $47,000, $21,240 was allocated to the Zavitz Drain. As Wiebe Engineering was no longer in a position to complete the work, Fort Erie made a determination to set the Wiebe Report aside and requested that the newly appointed engineer, being AMEC, utilize as much of the Wiebe Report as possible in the preparation of its Engineer’s Report.

Mr. Bennemeer referred to a letter from Mr. Smeltzer of AMEC, dated March 22, 2012, that documented a meeting held to review the additional engineering fees relating to the Zavitz Drain. In that letter, AMEC explained that it was awarded the Zavitz Municipal Drain by the Town of Fort Erie with approved engineering fees of $22,115 (Tab 3, Exhibit 6), not including HST, in October 2010. The March 22, 2012 letter stated that $18,810 of the original approved engineering fees had been expended and that numerous additional items of work had been authorized and costs for each were shown. Mr. Bennemeer provided the Tribunal with an overview of the letter and identified the engineering fees to be divided between Fort Erie and the Port Colborne. Based on this information Mr. Bennemeer concluded that the engineering fees for the main Zavitz Drain were going to increase by $4,660 to a total of $29,275 and the total of the engineering fees for the new Branch Drains in Port Colborne would increase to $17,511.92.

Mr. Bennemeer advised that, in early October 2013, when the Report had essentially been completed by AMEC, it came to his attention that the engineering fees being charged to the Zavitz Drain portion of the project were $74,940, being $45,665 more than the amount approved after the March 22, 2012 meeting. A meeting with Fort Erie held on October 9, 2013 did not resolve the issues associated with this fee increase and it continues to remain unexplained.

Mr. Bennemeer testified that he does not understand the increase in engineering fees for the Zavitz Drain and expressed concern on the division of the fees between Port Colborne and Fort Erie. Mr. Bennemeer further indicated that Port Colborne was allocated 69.5% of the engineering fees associated with the Zavitz Drain leaving Fort Erie with only 30.5% of the engineering fees. Mr. Bennemeer pointed the Tribunal to the report formatting and assessment schedules provided by AMEC which appeared to be identical to what was contained in the Wiebe Report.

Port Colborne takes the position that the allocation of 70% of the engineering fees to Port Colborne for the Zavitz Drain is excessive in the circumstances, particularly since only approximately one-third of the Zavitz Drain is located in Port Colborne.

Mr. Bennemeer indicated that Port Colborne was never advised of, nor did it approve, the increase in engineering fees.

Fort Erie questioned where Port Colborne obtained their figures and provided, at the hearing, a summary of the breakdown of engineering fees which was completed by Fort Erie’s finance department. The Tribunal notes that it is unfortunate that this information was not shared with Port Colborne and the Tribunal earlier as it would have provided the parties with an opportunity to review and comment on the information and made for a more informed hearing. Upon reviewing Fort Erie’s summary, the parties all agreed that the figures are substantially different than those contained in the Engineer’s Report.

In response to questions from the Tribunal, the Engineer confirmed that approximately 1,942 metres of the Zavitz Drain are in Fort Erie and 956 metres are located in Port Colborne. Based on these figures it appears that approximately 67% of the travel length of the Zavitz Drain is located in Fort Erie and 33% of the travel length of the Zavitz Drain is located in Port Colborne. However, when calculating the engineering fees applied to the municipalities for the Zavitz Drain, 30.5% of the engineering fees are assessed to Fort Erie and 69.5% of the engineering fees are assessed to Port Colborne. Mr. Bennemeer indicated that this appears to be inequitable and disproportional. Mr. Bennemeer confirmed that in the prior engineering reports the assessments were proportional to the amount of drain located in each municipality.

Findings

The Tribunal concludes that there are numerous oversights of the existing conditions that were not taken into consideration in the Engineer’s Report and recommends that the Report be revised by the engineer, at no additional cost to the project, taking into account the following findings.

Ms. Neal Appeal

The Tribunal finds that, when reviewing the Sherkston North Branch, the Engineer failed to take into consideration the exact location of the existing drain between the Neal and Philip properties. Since the existing drain is already situated on the Philip property, the Tribunal concludes that the proposed drainage works should be constructed in the same location as the existing drain, that is on the Philip property not on the Neal property, and that the work take place from the east side of that drain, that is from the Philip property.

In an email to the Tribunal dated August 19, 2015 at 8:54 a.m. Mr. Bennemeer recommended:

… that the Tribunal order or amend the report to reflect what I have proposed, in order to allay Lisa Neal's concerns. Namely, that since the existing location (see Dwg. F2) of the drain is already on the former Philp property (parcel 11), that the location of the new drainage works/improvement take place on the former Philp property and that the work take place from the east side of the drain. That the working space on the Neal property remain in case of unforeseen circumstances, but that the width be reduced from 10 metres to 4.5 metres from the property line at Sherkston Road to 90 metres north or approximately Sta 0+470 to Sta 0+380 and from 10 metres to 6.0 metres from Sta 0+380 to approximately Sta 0+318. Lastly, that although it is inferred by way of the 4.5 metre working space, that there be absolutely no access to the drain over the front yard of the Neal property due to the location of the raised septic field.

A copy of the drawing referred to by Mr. Bennemeer is attached as Appendix “A”.

Mr. Woronachak Appeal

The Tribunal finds that the installation of a new culvert on the Woronchak property was overlooked by the Engineer and concludes that the revised Report shall include the removal and reinstallation of the existing, new culvert to the proper depth and slope, as part of the drainage work being undertaken, without any extra assessment to the Woronchak property, since Mr. Woronchak has supplied the culvert, assuming that the existing culvert is large enough. If the existing, new culvert supplied by Mr. Woronchak is not large enough, a culvert of proper size shall be supplied and installed as part of the project and the Woronchak property will be assessed in the same manner as other properties where such work is being undertaken.

Mr. Clee Appeal

The Tribunal finds that the Clee property is not used for agricultural purposes and that the majority of the property has been left to return to its naturalized state.

The Tribunal concludes that the Clee lands must be reassessed by the engineer and the Engineer’s Report revised taking into consideration that the current use of the land is not for agricultural purposes. The Clee property is primarily a naturalized area with a small portion, approximately four acres, being manicured lawn. An aerial photograph of the Clee property is attached as Appendix “B” and shows the naturalized area as compared to the manicured area.

Engineering Fees for the Zavitz Drain

Based on the cost estimate for the Zavitz Drain as shown in the report, AMEC’s fees are thirty percent (30%) of the total project cost. When the Wiebe Engineering fees are included, the engineering fees represent 36.9% of the total project cost. The Tribunal finds that AMEC’s engineering fees for the Zavitz Drain are unreasonable and excessive, as much of this work was completed in the draft report prepared by Wiebe Engineering. The Tribunal notes that the engineering fees are not in-keeping with the provincial average for a drainage project of this size which would be approximately 23% of the total project cost. Attached as Appendix “C” is a table indicating the appropriate percentage of engineering fees based on the cost of the municipal drain. Accordingly, the Tribunal directs the Engineer to revise the Zavitz Drain portion of the Report and reduce the engineering fees to reflect the current provincial average, including the Wiebe fees. The Tribunal also concludes that the amount of engineering fees allocated to Port Colborne is excessive in the circumstances and should be based on the length of the Zavitz Drain that is situated in Port Colborne being approximately thirty-three percent (33%) of the total length of the Zavitz Drain.

Fees Charged to the Zavitz Drain for the Wiebe Report

The engineering fees for the Zavitz Drain, as shown in the draft final report prepared by Wiebe Engineering, were $16,200. However, it appears that AMEC charged $21,241 for Wiebe’s engineering fees. The Tribunal is unclear as to AMEC’s rationale in support of the $21,241 charge when Wiebe was only going to charge $16,200 for the Zavitz Drain, representing a discrepancy of $5,014 in fees.

Mr. Bennemeer provided detailed information from the original proposal by Wiebe Engineering in June 2005 which shows that only 72.6% of the contracted work was completed which should have resulted in a charge of 72.6% of $16,200 or $11,761 for the engineering work completed by Wiebe Engineering on the Zavitz Drain. The Tribunal agrees with the figures presented by Mr. Bennemeer and directs that the amount of the Wiebe engineering fees that shall be charged to the Zavitz Drain shall be reduced from $21,241 to $11,761, as supported by the information found at page 54 of Tab 1 of Exhibit 6.

Engineering Fees for the Branch Drains

The Tribunal finds that the engineering fees attributed to the Branch Drains are reasonable and in order and no changes shall be made to these amounts in the revised report.

Maintenance Assessment Schedules for the Branch Drains

The Tribunal finds that the maintenance assessment schedules contained in the report for the Branch Drains are neither fair nor reasonable. The maintenance assessment schedules contained in the Report shall be deleted, and, with the exception of the East Branch, the Report shall indicate that maintenance costs of the Branch Drains will be assessed in accordance with the construction outlet assessments contained in the Report, as directed in the Order below.

The Tribunal shall give the Engineer a period of sixty-five (65) days (two months) until December 2, 2015 to revise the Report and fix the deficiencies identified by the Tribunal.

Once the revised Report is provided by the Engineer, the Tribunal directs the Town of Fort Erie to circulate the revised Engineer’s Report to all assessed parties, as the assessments for each will have changed, along with a copy of the Notice of Hearing and Tribunal Order attached as Appendix “D”. This notification must take place on or before December 3, 2015 and an Affidavit of Service is to be sent to the attention of the Tribunal Coordinator. If there are any appeals regarding the revised assessments by any party, the Tribunal shall remain seized of this matter and will hold a hearing regarding these appeals on January 8, 2016.

Order of the Tribunal

The Tribunal therefore orders that the following changes shall be made in the revised Engineer’s Report on or before December 2, 2015:

1. The revised Report shall include the removal and reinstallation of the existing, new culvert on the Woronchak property to the proper depth and slope, as part of the drainage work being undertaken, without any extra assessment to the Woronchak property. However, If the existing, new culvert supplied by Mr. Woronchak is not large enough, a culvert of proper size shall be supplied and installed as part of the project and the Woronchak property assessed in the same manner as other properties where such work is being undertaken;

2. The Report shall show the construction of the Sherkston North Branch on the Philip property (parcel 11), and confirm that the work in this area shall take place from the east side of the drain. The Report shall also incorporate revision to the working space widths in this area in the manner set out in Mr. Bennemeer’s email dated August 19, 2015 at 8:54 am.;

3. The assessment schedule for the Zavitz Drain shall be revised to reflect a reassessment of the Clee property based on it not being used for agricultural purposes and it being primarily a naturalized area with 4 acres of manicured lawn;

4. The amount of engineer fees associated with the Wiebe Report shall be eleven thousand seven hundred and sixty-one dollars ($11,761);

5. The “Assessment Schedules – Future Maintenance for the Sherkston North Branch Drain”, namely Appendix F1, shall be deleted from the revised engineer’s report and the future maintenance schedule for the North Branch shall be based only on the outlet assessments contained in the construction assessment schedule, as per pages 7 and 8 of Appendix F of the July 29, 2014 Report, at the ratio of approximately 56.3% to the privately-owned lands and 43.7% to the Port Colborne-owned lands, as currently shown;

6. The “Assessment Schedules – Future Maintenance for the East & West Trail Branch Drains”, namely Appendix G1, shall be deleted from the revised Engineer’s Report;

7. The future maintenance schedule for the West Trail Branch shall be based only on the outlet assessments contained in the construction assessment schedule, as per page 14 of Appendix G of the July 29, 2014 Report, at the ratio of approximately 47.2% to the privately-owned lands and 52.8% to the lands owned by Port Colborne, as currently shown;

8. The future maintenance schedule for the East Trail Branch shall be based only on the outlet assessments contained in the construction assessment schedule, as per page 6 of Appendix G of the July 29, 2014 Report, but with 50% assessed to the privately-owned lands and 50% assessed to the Friendship Trail lands owned by Port Colborne;

9. The engineering fees associated with the Zavitz Drain, including the Wiebe fees, shall be reduced to reflect the provincial average of twenty-three percent (23%) of the total cost of the drainage works;

10. The allocation of the engineering fees for the Zavitz Drain shall be proportional to the travel length of the drain situated in each municipality, thirty-three percent (33%) to Port Colborne and sixty-seven percent (67%) to Fort Erie;

11. All of the above-noted revisions to the Report shall be made with no additional fees being payable to the Engineer;

12. The non-administrative costs of Fort Erie incurred with respect to these appeals, namely only the Engineer’s fees and expenses for attending and participating in this hearing, shall form part of the cost of the drainage works; and,

13. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at London, Ontario this 28^th^ day of September, 2015.

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

APPENDIX D

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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

NOTICE OF HEARING

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 Gary R. Clee of Port Colborne, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision; and by the City of Port Colborne from the decision of the Court of Revision and section 72(1) request for review of the Engineer’s Account pertaining to the Zavitz Municipal Drain.

AND IN THE MATTER OF: An Order of the Agriculture, Food and Rural Affairs Appeal Tribunal from the Interim Decision of September 28, 2015.

TAKE NOTICE of the Hearing to be held by the Agriculture, Food and Rural Affairs Appeal Tribunal in this matter on Friday, January 8, 2016 commencing at 9:30 a.m. in the Council Chambers, The Corporation of the Town of Fort Erie, 1 Municipal Centre Drive, Fort Erie, Ontario. The hearing is open to the public.

AND FURTHER TAKE NOTICE THAT the Tribunal has ordered that:

1. By December 22, 2015, landowners may appeal the Revised Engineer’s Report Schedule of Assessments to be distributed by December 3, 2015 by notifying the clerk of the Tribunal (the clerk of the Municipality).

AND FURTHER TAKE NOTICE THAT the Tribunal has ordered that if any landowner appeals the Revised Engineer’s Report Schedule of Assessments:

2. By Monday, December 28, 2015 the parties deliver to the clerk of the Tribunal (the clerk of the Municipality is the clerk of the Tribunal) six copies of all relevant documentary evidence and other materials of any kind whatsoever intended to be relied upon at the hearing. The presentation of the parties may be included if desired.

3. On Tuesday, December 29, 2015, the clerk of the Tribunal shall send five copies of the documents, described in point 1, to the Tribunal offices and make one copy available for review in the municipal offices. Additional copies may be made for parties and members of the general public by the Municipality.

AND FURTHER TAKE NOTICE THAT if you do not attend at this Hearing, the Tribunal may proceed in your absence and you will not be entitled to any further notice in the proceedings.

The notice of appeal has identified issues relating to the assessment of costs of the drainage works. This appeal may result in the Tribunal ordering a modification to the assessments proposed in the report. Accordingly, the Agriculture, Food and Rural Affairs Appeal Tribunal has made an order adding as parties to the appeal filed all persons assessed for the drainage works as shown in the engineer’s report. As a party you may wish to attend at the hearing and participate.

AND FURTHER TAKE NOTICE THAT the hearing room is wheelchair accessible. If you are a participant in this proceeding and have specific accommodation needs due to a disability, please contact the Tribunal Coordinator at 519-826-3431 at least ten business days before the hearing.

AND FURTHER TAKE NOTICE THAT decisions of the Tribunal are a matter of public record and available on the website at the following internet link www.canlii.ca/en/on/onafraat/, or upon request to the Tribunal.

IF YOU WISH TO ACTIVELY PARTICIPATE in this hearing and have not been named as a party, OR if you have any questions concerning this hearing, please contact the Tribunal Coordinator at (519) 826-3431.

Dated at Guelph, Ontario this 28^th^ of September, 2015.

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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

TRIBUNAL ORDER

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Gary R. Clee of Port Colborne, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision; and by the City of Port Colborne from the decision of the Court of Revision and section 72(1) request for review of the Engineer’s Account pertaining to the Zavitz Municipal Drain.

AND IN THE MATTER OF: An Order of the Agriculture, Food and Rural Affairs Appeal Tribunal from the Interim Decision of September 28, 2015.

The notice of appeal has identified proposed changes to the assessment of costs of the drainage works. Because this appeal may result in the Tribunal ordering a change in the assessments proposed in the report, the Tribunal orders that:

1. All persons assessed or compensated for the drainage works as shown in the revised

engineer’s report are made parties to the hearing of the appeals filed and the notice of hearing is to contain a clause to notify the assessed parties of this decision of the Tribunal.

Dated at Maidstone, Ontario this 28^th^ day of September, 2015.