Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Ashley Drain, Town of Northeastern Manitoulin and the Islands

Ashley Drain, Town of Northeastern Manitoulin and the Islands (RE) 2015ONAFRAAT21

STATUTE: Drainage Act

HEARING: September 29 and 30, 2015

DATE OF DECISION: October 13, 2015

2015-21

NEUTRAL CITATION: 2015ONAFRAAT21

Ashley drain Town of Northeastern Manitoulin and the Islands

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 Michael Bailey, Little Current, Ontario under sections 48(1) and 54(1) of the Drainage Act from the Report of the Engineer and the decision of the Court of the Revision; by Mike Lecuyer, Little Current, Ontario under section 48(1) of the Drainage Act from the Report of the Engineer; and by Edward Eadie, Little Current, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision on the Ashley Drain in the Town of Northeastern Manitoulin and the Islands.

Before: John O’Kane, Vice-Chair; Andrew McBride, Member; Brenda Lammens, Member

Appearances: Mike Lecuyer and Cheryl Smith - Appellant Everett Eadie, Representative for Edward Eadie - Appellant Keith and Rosanne Ashley - Assessed Landowners and Petitioners for Drain John Kuntze, Engineer who prepared the Report – K. Smart Associates Limited Robert Sheach, Town Drainage Superintendent/K. Smart Associates Limited – representative for the Town of Northeastern Manitoulin and the Islands Neil Tarlton, witness for Mike Lecuyer

DECISION OF THE TRIBUNAL

This Drainage Act (the “Act”) hearing was held in the Town of Northeastern Manitoulin and the Islands (“NEMI”) on September 29^th and 30^th, 2015 to consider appeals from the July 2^nd, 2015 Court of Revision under section 54 of the Act by Michael Bailey and Edward Eadie. This hearing also considered the appeals by Michael Bailey and Mike Lecuyer under section 48 of the Act from the May 6^th, 2015 engineer’s report of K. Smart Associates Limited (the “Report”).

The Report was signed by John Kuntze, P. Eng. (the “Engineer”) and related to the drainage works known as the “Ashley Drain”.

Appeals under Section 54 of the Act relate to challenges to the amount and apportionment of the costs of drainage works (the “assessments”).

Appeals under section 48 of the Act relate to challenges to the Report over the feasibility of, or the cost versus benefits of, or the design of the drainage works or the compensation or allowances provided by the Engineer.

Pam Cress, Clerk of the Town of Northeastern Manitoulin and the Islands, 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 Clerk filed an Affidavit of Service as proof that all parties had been served with the notice of hearing.

At the start of the hearing, Cheryl Smith, on behalf of Mike Lecuyer, asked a question whether there was a conflict of interest because the Engineer was employed by K. Smart Associates Limited as was NEMI’s Drainage Superintendant, Robert Sheach.

The appellants did not provide any evidence regarding the conflict issue and when asked what remedy they sought if the Tribunal determined there was a conflict of interest, the appellants advised they would leave that up to the Tribunal.

Under the Act, upon receipt of a petition for drainage, a municipality is obliged to appoint an engineer to carry out the duties described in section 8 of the Act to the standard described in section 11 of the Act.

The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.

The Act defines the duties and appointment process of a Drainage Superintendant. Many smaller municipalities do not have the budget nor the need for a full time Drainage Superintendent on staff. In those instances, many smaller municipalities like NEMI contract their part-time need for a Drainage Superintendant to engineering firms that have the appropriate skill set.

There is nothing in the Act that precludes an engineer or engineering firm from acting as both the engineer on a petition for drainage works and the Drainage Superintendant. Further, there is nothing inherently conflicting in those two statutory appointments and those two statutory duties.

In these circumstances, with the absence of any evidence or clear articulation of the alleged conflict of interest, we are unable to make any determination of conflict of interest.

Background

As far back as 1890, there was a defined watercourse across much of the watershed area in issue in these appeals. That was evident from the historical plans and profiles put into evidence. On June 26, 1920, an award drain was made by engineer Thaddeus J. Patten under the Ditches and Watercourses Act that followed, and extended the watercourse existing from 1890. An award drain required the landowner of each section of the drain crossing their property to construct and maintain their section of the drain, in this case a shallow ditch, at their own expense. Where such award drains continue to exist in Ontario, the maintenance of each drain section relies on the cooperation and goodwill of the landowners, and failing that, enforcement of maintenance through civil litigation before the courts. Award drains can be converted into municipal drains by the petition process under the Drainage Act.

The Drainage Act introduced in Ontario an alternative process to award drains where, a party or parties requiring drainage on their lands could petition the local municipality and upon satisfying the requirements of the Act, the municipality is obliged to appoint an engineer to design a solution to the drainage issue and that engineer also allocates the costs associated with the drain among the landowners in the watershed area. The municipality’s role is to administer the process and collect the assessments via the property tax roll.

On June 5^th, 2012, Keith and Roseanne Ashley filed a petition for drainage of their 96 acre farm with NEMI. That area requiring drainage was on agricultural lands. As noted previously, in response to the Ashley petition, NEMI appointed K. Smart Associates Limited.

On February 28^th, 2013, about eight months after the Ashley petition, the Road Superintendent for NEMI filed a petition for drainage of the area east of Boozeneck Road, north of Highway 540 and the area around Hayward Street, both in Lots 22 and 23, Concession 11, Township of Howland. That area requiring drainage was on primarily urban lands.

NEMI directed the Engineer to include the Ashley’s petition and the Road Superintendent’s petition in the same report.

The May 6^th, 2015 Engineer’s Report described a watershed area of 221.1 hectares (“ha”) with varied land uses that include urban uses (residential, industrial and some vacant woodlot) on the easterly portions of the watershed and rural uses (vacant, woodlot, agricultural) and a closed landfill site on the western portions of the watershed. The Engineer established the watershed perimeter using available topographic information and on site examinations that included GPS survey data and the historical and current drainage records.

The Engineer explained in his evidence that his designed drainage route followed very closely the historic watercourse that dates back to at least 1890.

The Engineer’s drainage work design was primarily a series of connected shallow ditches to collect the drainage water from the area requiring drainage in the Road Superintendent’s petition on the east side of the watershed and carry that water to an outlet on the extreme west side of the watershed where it would drain into an existing watercourse that outlets into the North Channel of Lake Huron. That route of the drainage works also traversed the Ashley property in the middle of the watershed and collected the drain water from that area requiring drainage. In addition to the shallow ditches, the design included a number of culverts to convey the drain water beneath municipal roads and farm crossings.

The drainage works were designed to accommodate a two year storm event, which is the standard design parameter for agricultural drains in Ontario.

The total length of the new ditch was to be 3,180 meters. The route proposed by the Engineer for the drainage works follows almost exactly along the route of the historic watercourse from the edge of the Town of Little Current in the east of the watershed, across the Eadie property, across the Ashley property, across the Morphet property, and across the Lecuyer property to the western edge of the watershed.

The total proposed cost of the drainage works was to be $244,740.00. The Engineer’s Report apportioned that total cost among the lands located in the watershed in accordance with the Act for outlet liability (the cost associated with the flow of water from a property into the drain) and benefit (the enhanced value or utility of the property as a result of the drain). That apportionment is described in detail in the assessment schedule to the Report.

Issues for Consideration

Bailey Appeals:

• Should the design be altered as requested?

• Should the assessment be reduced?

Lecuyer Appeal:

• Should the design be altered as requested?

Eadie Appeal:

• Should the assessment be reduced?

A. Bailey Appeals:

Mr. Bailey owns two lots located on the south side of Highway 540, south of the Ministry of Transportation of Ontario (“MTO”) yard located at the intersection of Highway 540 and Cockburn Street.

Mr. Bailey did not attend the hearing and did not provide any evidence in support of his appeals.

As a result, we have no evidence that would inform a decision to either alter the design or reduce the assessments.

Mr. Bailey wanted the design altered so that the ditching was extended to drain water from his property. The Engineer confirmed in evidence that Mr. Bailey’s properties are in the watershed and the properties would drain indirectly into the proposed drainage works, but that the Bailey properties were located upstream of the area requiring drainage in the two petitions. Therefore, the Engineer explained that he had no authority to extend the drainage works beyond the areas requiring drainage but that Mr. Bailey could file his own petition and, if he did, any proposed drainage works could connect with the Ashley Drain.

The Engineer also testified that since the Bailey properties drained indirectly into the Ashley Drain, the properties were subject to an assessment for outlet liability, based on the amount of water that the properties contribute to the drain.

Based on the Engineer’s evidence, the Tribunal was satisfied that the outlet assessment to Mr. Bailey of $359 for roll #1-18100 and the outlet assessment of $169 for roll #1-18600 are reasonable and fair in the circumstances.

The Tribunal also finds that the Engineer has no authority under the Act to extend the drainage works as requested by Mr. Bailey. Similarly, this Tribunal has no authority to direct the extension of the drainage works as requested by Mr. Bailey.

B. Lecuyer Appeal:

Mr. Lecuyer owns 37.62 ha at the extreme western side of the watershed. His lands are at the outlet of the historic watercourse, which is also the outlet of the proposed drainage works. Mr. Lecuyer lives on the property and operates a small beef cattle farm. He has fields where he grows forage crops for his cattle and fields where he pastures his cattle. Much of his land is covered by bush. A large wetland occupies between 4-6 ha of the eastern side of the middle of his property. That wetland also extends beyond his property line into the Morphet’s lands which are east of the Lecuyer lands. Mr. Lecuyer introduced into evidence a topographical map showing the watershed area and the defined watercourse and the wetland area extending from his land to the Morphet’s lands. He agreed that the topography generally drains from east to west.

Mr. Lecuyer had no real concerns about the drainage works associated with addressing the Ashleys’ petition and that area requiring drainage. However, he did have grave concerns about the drainage works associated with addressing the NEMI petition and the area requiring drainage upstream in the urban subdivision. Ms. Smith testified that the proposed drainage works would “destroy” the farm.

Mr. Lecuyer had concerns about the quality of the water originating upstream from the urban area that would cross his lands. He had concerns for toxic run off that would degrade the quality of the watercourse and negatively impact the drinking water for his cattle. He had concerns that degraded water quality would endanger what he described as a cold water fishery. He was concerned that the degraded water quality or an alteration in the water flow would endanger the significant wetland on his property which provided habitat for a number of species, including the endangered Blanding’s Turtle. Mr. Lecuyer also had concerns that the closed municipal landfill site south of the Ashley property had never been sealed and had only been capped. He was concerned about water runoff from that closed landfill site and the potential impacts on his farm. Mr. Lecuyer asked where the environmental assessment was for the proposed drainage works. Mr. Lecuyer testified that he works on heavy equipment and excavation and there were alternate routes that the Engineer could have designed to divert the drainage to either the north along Boozeneck Road or north along the unopened road allowance between the Ashley and the Morphet properties, or south into another watershed.

Mr. Lecuyer and Ms. Smith asserted that the watercourse on the Lecuyer property was a cold water fishery. They testified that spring water from at least two higher locations on the property drained into the watercourse. They testified that they had seen several fish species in the watercourse including pike and trout. A photograph from Mr. Lecuyer’s cell phone did show small minnow like fish of indeterminate species in the watercourse. Photographs from June of this year introduced by Mr. Lecuyer did show a flowing watercourse exiting his property and into a road culvert under North Channel Drive. He testified that fish from the lake swim up that watercourse to spawn. However, photographs from September of this year, introduced by the Lecuyer’s witness Neil Tarlton showed the westerly reaches of the watercourse as dry and without any flowing water. The September photographs of the culvert under North Channel Drive showed no water flowing.

Therefore, while spring water may well flow into the watercourse, it was apparent from the photographs introduced by Mr. Lecuyer and Mr. Tarlton, that spring water does not sustain a flowing watercourse throughout the seasons.

The Tribunal received no scientific evidence or any submissions about what makes a watercourse a cold water fishery, and if one, what regulatory regime or protections would govern.

The federal department of Fisheries and Oceans (“DFO”) did not participate in the Drainage Act process, despite having been served with notice of the proposed drainage works under the Act on July 20^th, 2012.

The provincial Ministry of Natural Resources (“MNR”) did participate in the process. Upon receiving notice of the petition and the proposed drainage works, the MNR indicated that the proposed route may impact on habitat of the Blanding’s Turtle, which is identified as a species at risk under the Endangered Species Act. In response to the MNR’s concerns, the Engineer retained Tulloch Engineering (“Tulloch”) to conduct an assessment and survey for Blanding’s Turtle habitat assessment, and an impact assessment and mitigation plan. Tulloch’s conclusions were that the proposed drainage works would not contravene the Endangered Species Act and that any potential impacts to the Blanding’s Turtle can be avoided with recommended mitigation measures. The Engineer testified that the proposed construction would incorporate the mitigation measures recommended by Tulloch.

In Ontario, wetlands are classified by the MNR and if determined to be “provincially significant”, they are protected from development. Apart from the Lecuyer assertion that the wetland extending over the Lecuyer and Morphet properties was “significant”, the Tribunal received no evidence about that significance.

Mr. Lecuyer testified that he allowed his cattle to pasture in the wetland area and to have access to the watercourse. Allowing cattle such access to a watercourse can result in the animal waste products contaminating the watercourse.

The Engineer testified that the alternate routes suggested by Mr. Lecuyer for the drain were not practical alternatives. The Engineer testified that his statutory duty under the Act is to take the drainage water to a sufficient outlet, which means the point the water can be discharged safely so that it will do no damage to lands or roads. The Engineer explained that due to the natural rise of the lands to the north, and the fact that much of that was bedrock, to take the drainage water north as suggested by Mr. Lecuyer would require excavating trenches into bedrock by as much as 22 feet deep to achieve sufficient fall for the water to be carried away. Diverting the drain water to the south would require ditching almost five kilometers and conveying the water into another watershed. The Engineer testified that such a diversion into another watershed does not solve the drainage issue, it merely relocates it onto other properties. The Engineer testified that in his professional opinion, none of those alternates were economically practical.

The Engineer testified that no work is proposed for the wetland area. There will be some very minimal work on the Morphet lands west of the Ashley property line, but the wetland on the Morphet and Lecuyer lands will be untouched by any construction. The proposed work on the Lecuyer lands will be west of station 0+600, which is west of the western edge of the wetland. The Engineer also testified that the wetland area extending from the Morphet to Lecuyer lands will act as a buffer that will attenuate water flow and will act as a natural organic filter for the water draining from upstream in the watershed. The Engineer also testified that the water draining from the urban area has historically drained from east to west across the Ashleys’, Morphet’s and Lecuyer’s lands. He testified that his proposed design was not to alter that historic drainage pattern, but rather simply to do enough cleanout of the existing watercourse and limited new construction works to ensure appropriate drainage for the two areas requiring drainage. He testified that the drainage works would not add any new water to the watercourse.

NEMI produced the annual monitoring report for 2014 on the closed landfill site. Part of the Ministry of Environment’s Certificate of Approval for the landfill site requires an annual report on monitoring the impacts of the closed landfill site on both surface and groundwater.

While the Lecuyer appeal raised understandable concerns, particularly related to the Road Superintendant’s drainage petition, those concerns were not supported by any reliable evidence.

Based on the evidence received, we can make several findings of fact.

• An historic watercourse already exists across the Lecuyer property, draining the easterly upstream land, which includes the Morphet’s land, the Ashleys’ land, the closed landfill site, and the urban lands east of Boozeneck Road.
• It would be impractical to divert the drainage works north, either along Boozeneck Road or along the unopened road allowance.
• It would be impractical and unwise to divert the drainage works to the south, into another watershed area.
• The wetland area was not proven to be provincially significant or otherwise significant enough to attract the attention and intervention of the MNR, except in the context of appropriate drainage construction mitigation measures as they relate to the Blanding’s Turtle.
• The watercourse was not proven to be a cold water fishery or otherwise significant enough to attract the attention or intervention of the DFO or the MNR.
• The proposed drainage works will not significantly increase the flow of water into and across the Lecuyer property.

Therefore, based on these findings of fact, there is no reason to alter the proposed drainage works as requested by Mr. Lecuyer.

C: Eadie Appeal:

Edward Eadie appeared at the hearing for his elderly father Everett Eadie. As explained by Mr. Eadie, his father does not live on the land and, for the past 35 years, it has not been actively farmed. The land is being “naturalized”.

Mr. Edie confirmed that for a significant time, his father’s lands and the lands to the west have been the drainage outlet for the lands to the east. He testified that since his father is not living on the land nor farming the land, they have no need for any drainage works on their lands. The water from the lands to the east will drain naturally across their lands and eventually outlet onto the Ashley property.

Mr. Eadie argued that his father’s lands do not benefit from the drainage works and, therefore, the benefit assessment of $10,500 is not warranted. He contended, using the definition of “benefit” from the Act, that the drainage works on their lands will not increase the value of the land, nor will it increase the agricultural productivity, since they no longer farm.

Mr. Eadie testified that they have been aware that the drainage east of Boozeneck Road in the urban subdivision area has been a problem for several years.

When Mr. Eadie made inquiries with the municipality about the drainage plans for the urban subdivision, he was told, by someone at the municipality that because of the 1920 award drain, the municipality had a right to drain the urban subdivision lands across the Eadie property.

The Engineer’s proposed work on the Eadie property included constructing 157 metres of new drain channel and cleaning out 279 metres of existing channel, including about 100 metres of rock excavation. A significant proportion of the cost of that proposed construction was being assessed to the Eadie property.

During cross-examination by the Engineer, Mr. Eadie conceded that his father would be prepared to accept a reduced level of drainage works on their property and a corresponding reduction in benefit assessment.

The Engineer testified that his drain design could be modified to reduce the physical construction on the Eadie property, and still achieve the statutory objective of taking the drain water from east of Boozeneck Road, to a point of sufficient outlet. The Engineer explained that since the Eadies were prepared to allow the drain to flow across their land following the natural topography, all he needed to construct was a relatively short stretch of rock excavated channel from the eastern edge of the Eadie property to direct the flow coming from east of Boozeneck Road. The drain water would then follow the natural topography of the Eadie lands until reaching the eastern edge of the Ashley lands, where the water would be collected either in the new main drain construction on the Ashley lands, or in the new East Branch construction on the Ashley lands.

In addition, the Engineer testified that such a modified design would allow the overall costs to be reduced and the reduction of the benefit assessment to the Eadie lands.

The Engineer testified that the lands to the east of Boozeneck Road were owned by NEMI and NEMI had laid out a subdivision but there was no registered plan of subdivision. The Town was severing lots as sales were made and, so far, he believed that only two lots had been sold. Since NEMI had designated at least two of the proposed lots as dedicated to the drain, the Engineer designed part of the drainage works to cross those two lots. The Engineer testified that there was no storm water management plan for the urban subdivision area. The Engineer testified that he believed that some storm water management facility to address water quality draining from the urban subdivision would be appropriate.

Based on the evidence and the concession reached between the Engineer and Mr. Eadie, we make the following findings:

• The drain profile should be amended to reflect the agreement reached between Mr. Eadie and the Engineer as reflected in the new profile drawing shown on Exhibit 5 at the hearing.
• A storm water management study is required for the urban subdivision area east of Boozeneck Road to consider both water quantity and quality that will outlet into the Ashley Drain.
• Sediment basins will be required in the eastern portions of the drain.
• The costs of the storm water management study and the required sediment basins are appropriately charged to the municipality and MTO.
• The benefit assessment to the Eadie land must be amended accordingly.

General Observation

It became evident during the hearing that municipal drains and the processes of the Drainage Act are relatively rare in this municipality. In addition, it seemed that the landowners were given inaccurate or incomplete information about the processes by municipal staff.

As a consequence, the landowners who appeared before this Tribunal seemed rather uninformed about the proposed work and the procedures under the Drainage Act. It is our conclusion that this situation was due to a lack of sufficient communication from the Engineer and the Town to the involved landowners. The Engineer did not attend at least two of the meetings held about this Drain.

Accordingly, we encourage all engineers and all municipal staff undertaking work in accordance with the Drainage Act, to make significant efforts to fully inform all landowners about the procedures to be followed under the Act and the works that are proposed to be constructed.

Order of the Tribunal

For the reasons stated above, the Tribunal orders that:

1. The appeals of Michael Bailey are dismissed.
2. The appeal of Michael Lecuyer is dismissed.
3. The profile of the proposed Main Drain shall be amended, between Stations 1+710 and 2+000, that is across the westerly portion of Lot 4, Concession 9, the Edward Eadie property, in accordance with Exhibit 5.
4. A sediment basin shall be constructed immediately downstream of Boozeneck Road, on the road allowance property and the Eadie property, as part of the Main Drain construction, and the total cost of constructing and maintaining this basin shall be assessed to Boozeneck Road. The size and exact location of the said sediment basin shall be determined by the Engineer.
5. The appeal of Edward Eadie is granted in part in that the benefit assessment to Lot 4 , Concession 9 on the Main Drain shall be reduced from $10,500 to $0 and, taking the cost reduction resulting from Order 3 into consideration, any cost remaining shall be assessed to the Town property with roll number 3-066.
6. The Town shall immediately commission a stormwater management study of the municipally-owned residential and industrial subdivision located east of Boozeneck Road, said study to address both water quantity and quality concerns, and be undertaken by a qualified professional engineer. The recommendations of this study shall be implemented, in their entirety, immediately upon the completion of the study. All costs related to undertaking this study and implementing the recommendations shall be borne by the Town.
7. A sediment basin shall be constructed as part of the Main Drain, downstream of the Province of Ontario property, namely roll number 3-068, at approximately Station 2+350, the exact location and size of the said sediment basin to be determined by the Engineer, and the total cost of constructing and maintaining this basin shall be assessed to the Province of Ontario property, namely roll number 3-068.
8. The non-administrative costs of the Town incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs shall include the Engineer’s fees and expenses for preparing the report as well as the Engineer’s fees and expenses for preparing and attending the hearing.
9. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Brampton, Ontario this 13^th day of October 2015