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:

Bateman Municipal Drain, Municipality of Southwest Middlesex

Bateman Municipal Drain, Municipality of Southwest Middlesex (RE) 2015ONAFRAAT23

STATUTE:

Drainage Act

HEARING:

October 19, 2015

DATE OF DECISION:

October 30, 2015

2015-23

NEUTRAL CITATION:

2015ONAFRAAT23

BATEMAN MUNICIPAL DRAIN Municipality of Southwest Middlesex

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

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Thomas and Jeanette Ward of Appin, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision pertaining to the Bateman Municipal Drain and Branches.

Before: Jeffrey J. Hewitt, Vice-Chair; Ed Dries, Member; Tim Mousseau, Member

Appearances: Thomas Ward, Appellant Ray Dobbin, Engineer who prepared the Report

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Municipality of Southwest Middlesex (“Municipality”) on October 19, 2015. The Engineer’s Report dated March 18, 2015 for the Bateman Drain and Branches (“Report”) was prepared by R. Dobbin Engineering Inc., and submitted by Ray Dobbin P.Eng. (“Engineer”). The appeal to the Tribunal was filed by Thomas and Jeanette Ward of Appin, Ontario from the omission, neglect or refusal of the Court of Revision to hear or decide an appeal.

Janneke Newitt, Clerk of the Municipality of Southwest Middlesex, 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 October 5, 2015, as proof that all parties had been served with the notice of hearing.

At the commencement of the hearing, the Tribunal requested clarification from the Appellant, Mr. Thomas Ward, as to the relief he was seeking from the Tribunal. The Appellant’s Notice of Appeal set out the details of his application and the relief he sought as follows:

The appellant submitted some written comments about his assessments; the Court [of Revision] refused to allow the appellant to speak to them. The appellant also made a request of the Tribunal [sic] for some relief until the drain is improved. The Tribunal [sic] shut down the meeting, indicating it would be discussing everything in a closed session and would let the Appellant know the outcome later. The Appellant has never been advised orally or in writing of what the Court of Revision decided, despite asking for a decision through counsel. If a decision has been made, the time for appeal could be about to lapse, without the Appellant knowing what the decision is or when it was made.

In his response to the Tribunal’s request for clarification, the Appellant spoke to the history of his problems with previous drainage reports and in particular a report recently prepared on the Saxon Drain, a municipal drain immediately adjacent to the Bateman Drain. Mr. Ward is also being assessed into the Saxon Drain, and he felt that issues still remained with the Saxon Drain Report prepared by Mr. Dobbin. He disputes the areas being drained in both the Bateman Drain Report and the Saxon Drain Report. He stated he has incurred significant costs to date and suggested the Engineer’s Report on the Bateman Drain is not in compliance with the Tribunal decision on the Saxon Drain. In his opinion, if these issues were resolved his overall assessment would be affected. He felt the whole matter should be decided by the Drainage Referee. He suggested that the Tribunal had the authority to refer these matters to the Referee and that there was no statute of limitations as to when this could occur.

The Engineer, on behalf of the Municipality, indicated that the Municipality was not prepared to proceed should the Tribunal decide to consider issues on the Saxon Drain or the previous Tribunal decision. As such, the Municipality would request an adjournment if the hearing were to proceed on this basis.

Given that this is a Drainage Act Section 54 appeal, the Tribunal directed that there would be no adjournment and that the hearing would be proceeding based solely on assessment issues related to the Bateman Drain Report dated March 18, 2015. The Tribunal advised that it does not have the authority to deal with any matters concerning the Saxon Drain Report or with any previous decisions of the Tribunal. The Appellant was advised that, in these circumstances, the Tribunal does not have the jurisdiction to refer matters to the Drainage Referee. The Tribunal also advised that it would not deal with any of Mr. Ward’s previous cost issues, or whether the Engineer was or was not in compliance with previous Tribunal decisions.

Overview

The Bateman Drain includes five branches and is a municipal drain that consists of both open channel and tile drains. The drainage works extend through portions of Lot 5 and Lot 6 in the Municipality of Southwest Middlesex. The Bateman Drain was originally constructed under an Engineer’s Report dated October 1929, with subsequent reports in 1954 and 1966.

In June 2013, the Agriculture, Food & Rural Affairs Appeal Tribunal directed that a report be prepared under Section 78 of the Drainage Act to, among other things, address possible improvements to the Bateman Drain in order to provide sufficient outlet for lands within its watershed. In addition, a petition was received by the Municipality from an owner within the Bateman Drain drainage area to extend a branch of the Bateman Drain in order to provide an outlet for a low-lying area. The Engineer, having determined that this petition was valid under Section 4 of the Act, incorporated this request into the Report.

The Report recommends abandoning certain sections of the existing drain, incorporating existing tile drains into the Bateman Drain, and the construction of new tile drains and catch basins to improve drainage in the area and to provide sufficient outlets for lands in the watershed. The estimated cost of the works is $215,046.00.

Issues

1. Do the assessments to the Appellants, Thomas and Jeannette Ward, in the Bateman Drain Report dated March 18, 2015 require adjustment?

2. Was there omission, neglect or refusal of the Court of Revision to hear or decide the appeal?

3. Should costs be awarded as per the Municipality’s request?

Evidence

After a general overview of the project from the Engineer, the Appellant was asked to provide his evidence.

Evidence of Thomas Ward – Appellant

Mr. Ward testified that he has owned the property assessed under this Report since 1963. The property has a slightly rolling topography with several hills, ridges and distinct low areas. Mr. Ward claims that the property has a total area of approximately 125 acres, more or less, and he has cleared the property over time to the point where it now offers approximately 108 acres of arable land that is randomly tiled.

Mr. Ward argued that the assessment levied in the Report against the S½ Lot 7, Con. R2NLR (K. Wilson) is too low. He contended that the area affected on this property as shown in the Report (5.30 ha.) should be higher. He argued that Mr. Dobbin relied on and applied the historic watershed boundary on this property, which he believes is incorrect as the property is actually larger than the original description of the property. Mr. Ward filed topographic plans of the general area and a written statement from a neighbor, who is also an assessed owner within the watershed, John Jeffery, to support his argument. Mr. Ward did not offer any suggestion as to what the correct watershed area within the Wilson property should be.

Mr. Ward argued that he should not be assessed any Benefit assessment related to the construction of Branch ‘B’ of the drain that is to be constructed in the most westerly corner of this property. Although he conceded that the upstream lands served by this branch require the drainage services and are entitled to it, he stated that his lands are currently bush ground and will not receive benefit from the drain.

Mr. Ward disagreed with the design of the catch basin at Sta. 0+600 (CB#1) and the associated earth berm on the downstream side of the catch basin. He expressed the opinion that a second catch basin should be installed on the original tile and that the berm should be removed. He stated that he is prepared to be assessed more for the second catch basin but should have his assessment reduced by the removal of the earth berm. He argued that the changes to the works recommended in the Report that he proposed should be considered an assessment appeal as they would impact his assessment.

Mr. Ward argued that the Benefit assessment levied against his property for the works recommended to construct Branch ‘F’ should be reduced or eliminated. He acknowledged that the construction of Branch ‘F’ was necessary to provide a drainage outlet to his lands as well as Irish Drive and the affected lands lying south of Irish Drive. He claimed that he was satisfied with the recommendation included in the preliminary report, which described the installation of a 200 mm diameter tile. However, the final Report included recommendations for the installation of a 300 mm diameter tile and an associated increase in his Benefit assessment of approximately $3,500. He claimed to have had no discussion with the Engineer on this matter and rejects the Engineer’s evidence that he, in fact, had asked for the increase in the tile size. He was of the opinion that the work recommended for the construction of Branch ‘F’ does not fulfill the intent of the petition for this drainage project.

Mr. Ward expressed the view that the drainage works were ‘imposed’ on the property owners even though no one was in favor of the work.

Mr. Ward referenced an order contained in a decision of the Agriculture, Food & Rural Affairs Appeal Tribunal on the Saxon Drain Branch that also serves his property. The order directs that two private tile mains on the Ward property be disconnected from the Saxon Drain Branch and re-directed to an outlet into the Bateman Drain. The lands affected by these two tiles are included within the Bateman Drain watershed and are assessed to the Bateman Drain. Mr. Ward contended that these two tiles should not be disconnected from the Saxon Drain Branch but also be allowed outlet to the Bateman Drain and the lands so affected assessed at a 50% rate. Should this approach be considered, it would directly impact the assessment on Branch ‘C’.

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

Mr. Dobbin confirmed that he undertook detailed topographic surveys of the lands in the S½ of Lots 6 and 7, Con. R2NLR. The plans of these topographic surveys, which were referenced by the Appellant, were used to define the limits of the watersheds for the various drains and branches. He expressed the opinion that the limits of the watersheds shown on the plans on the Wilson and Ward properties were correct. Further, he confirmed that the limits of the watershed on the properties surveyed were consistent with the limits defined in the Saxon Drain Branch Report and subsequent appeal.

Mr. Dobbin stated that the catch basin proposed for installation at Sta. 0+600 (CB#1) was designed to include both the original 300 mm diameter tile as well as the proposed 525 mm diameter tile. In his opinion, a second, separate catch basin on the original tile as suggested by Mr. Ward would not improve the performance nor impact future maintenance of these tiles. He further advised that he felt the earth berm specified to be installed on the downstream side of the catch basin would not result in ponding along the downstream side of the berm. He claimed that the area around the catch basin is not accurately depicted in the profile and the berm is necessary to direct surface flows from the Ward property into the catch basin. In the field, a low run will carry surface flows from the east side of this berm to the Stevenson Drain. He did not support modifications to the works as proposed by Mr. Ward nor the adjustment of the assessments against the Ward property for these specific works.

With regard to Branch ‘B’, Mr. Dobbin stated that he approached the assessment of this branch in the same fashion as all other branches on this drain. He offered detailed calculations that illustrated how the total cost of this work was broken out to an estimate of $16,901. He then split this cost at approximately 25% to Benefit and 75% to Outlet Liability. This split places a heavier burden of cost against the upstream owners in Outlet Liability who require the drain as an outlet. Mr. Ward, as owner of the most downstream property, was assessed a Benefit assessment in proportion to the length of the drain that serves the property. Consideration was given to the existing use of this land as bush ground. The upstream owners on whose land the drain was to be built were also assessed for Benefit but at a slightly higher rate as the lands are under agricultural use. He stated that the limits of the watershed for Branch ‘B’ were walked and confirmed by the owners.

With regard to Branch ‘F’, Mr. Dobbin stated that he calculated the cost of the works related to the entire cost of the branch and then split out the cost of the tile, open drain and road crossing separately. The cost of each component of the work was then assessed to the road or property affected. Generally, the cost of the tile portion was assessed 50% in Benefit against the immediately abutting lands (Ward) and 50% against the upstream lands in Outlet Liability. The open portion was assessed 75% in Benefit, all of which was levied against the road (Irish Drive) and 25% was assessed as Outlet Liability against the upstream lands. 100% of the cost of the road crossing was assessed against Irish Drive as a Special Benefit charge under Section 26.

Mr. Dobbin also clarified that the size of the tile on Branch ‘F’ was increased from 200 mm diameter to 300 mm diameter in order to allow Mr. Ward the ability to connect any existing or future tile drainage systems to this tile at any point along its length rather than extend them to CB#4 at the head of Branch ‘C’. His evidence was that Mr. Ward specifically requested this size upgrade for this purpose.

Mr. Dobbin also pointed out that the ‘Area Affected’ as shown in Schedule of Assessment 6 that pertains to the assessment of Branch ‘F’ should be revised. The ‘Area Affected’ attributed to the Ward property (S½ Lot 6, Con R2NLR) should be 7.68 hectares rather than the 1.08 hectares as shown.

Mr. Dobbin responded to an item raised in Mr. Ward’s written appeal concerning the assessment levied against his lands related to Branch ‘C’. Mr. Ward requested that the Benefit assessment shown to be assessed against his property related to Branch ‘C’ be changed to a Special Benefit assessment. Mr. Dobbin confirmed his belief that it would be inappropriate to show the assessment against the Ward property as a Special Benefit as the drain offered no unique or unusual service to the Ward property and it should be assessed in the same manner as all other properties on the drain.

Analysis and Findings:

The Tribunal rejects the argument of the Appellant that the westerly watershed defined on the Wilson property (S½ Lot 7, Con R2NLR) is incorrect. The evidence provided by the Appellant does not illustrate the extent of this watershed and cannot be relied upon. The Tribunal accepts the evidence of the Engineer that the boundaries of the watershed were walked in the field with the property owner and confirmed during the preparation of the Report.

Schedule of Assessment No. 2 included in the Report sets out the detailed assessments to be levied against the properties affected by Branch ‘B’. The Tribunal does not support Mr. Ward’s position that the Benefit assessment levied against his property for Branch ‘B’ should be eliminated. No direct evidence was provided to support this position. The evidence of the Engineer included detailed calculations that illustrated the manner in which the assessments were developed. The distribution of cost as between Benefit and Outlet Liability appeared to be fair and reasonable. The Engineer confirmed that he gave consideration to the current land use in further dividing the Benefit costs. The Ward property will experience better control of the surface and sub-surface flows from the upstream lands through the property and this is by definition a benefit to this property and it must be assessed. The Tribunal concludes that the Benefit assessment against the Ward property for the works related to ‘Branch B’ are properly developed and supported, and must stand.

The issues raised by Mr. Ward concerning his request to install another catch basin near Sta. 0+600 and eliminate the earth berm downstream of CB#1 are appeals related directly to the design of the works. It is appreciated that altering the design of the works will alter the assessment against Mr. Ward. However, the avenue for appeals of a design nature is clearly set out in Section 48 of the Act, and not in Section 54 through the Court of Revision, which has no authority to make design changes within the Report. If the Tribunal is incorrect in this reasoning, Mr. Ward’s suggested design changes, which in his opinion would alter his assessment, were not supported by any expert evidence that would either refute or improve the Engineer’s proposed design. Accordingly, the Tribunal finds that no changes to the Engineer’s Report with respect to design are necessary and no changes to assessment arise as a result.

Mr. Ward confirmed the need for the construction of Branch ‘F’ and also confirmed that the original assessment for Benefit to his property related to this Branch as suggested in the preliminary Report was acceptable. His evidence was that he neither asked for nor was consulted about the need to increase the tile size from 200 mm diameter to 300 mm diameter through his property. He believes that he should not be assessed for the increased cost related to the increased tile size. Mr. Ward offered no evidence as to what the Benefit assessment should be reduced to or any support for that alteration.

The evidence of Mr. Dobbin is clear on this issue; the recommendations, costs and assessment for Branch ‘F’ were clearly set out in the final Report. The technical need to increase the tile size to accommodate the connection of existing and future tile drainage systems from the Ward property to this branch is accepted. Mr. Dobbin’s testimony referenced a number of points of contact as between he and Mr. Ward regarding this specific issue.

The methodology applied by Mr. Dobbin as to the distribution of cost for Branch ‘F’ was consistent with that applied to all other branches of the drain. The proportional cost splits as between Benefit and Outlet Liability and the subsequent development of the Benefit assessment to be levied against the Ward property appear well reasoned, fair and equitable. The Tribunal concludes that the Engineer properly exercised his duty under the Act and that the Benefit assessment against the Ward property related to the construction of Branch ‘F’ must stand.

The Tribunal accepts the evidence of Mr. Dobbin concerning the ‘Area Affected’ on the Ward property as shown in Schedule of Assessment No. 6. Correcting the ‘Area Affected’ from 1.08 hectares to 7.68 hectares will greatly expand Mr. Ward’s ability to effectively and efficiently connect to the drain now and in the future.

The Tribunal rejects the arguments raised by Mr. Ward to alter a previous decision of the Agriculture, Food and Rural Affairs Appeal Tribunal on the Saxon Drain Branch which, if accepted, would alter the watershed of at least Branch ‘C’ of the Bateman Drain and hence the assessment against the Ward property. This Tribunal panel does not have the authority to re-open and change a past decision of a previous Tribunal. The evidence of the Engineer was that the Bateman Drain Report gave consideration to the orders from the decision of the Saxon Drain Branch and complied with those orders. The Tribunal accepts the watershed areas as shown in the Report as they affect the Ward property in the S½ Lot 6, Con R2NLR and accepts the methodology applied by the Engineer in the development of the assessments for the various branches of the Bateman Drain.

The Tribunal finds that, based on the evidence of the Appellant and the Engineer, no adjustments to the Appellant’s assessments in the Bateman Drain Report dated March 18, 2015 are required.

With regard to the Court of Revision’s omission, neglect or refusal to hear or decide an appeal, the Tribunal points out that, pursuant to Section 54(3) of the Drainage Act, “every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.” Accordingly, this hearing is a new hearing, and the Tribunal relies upon all of the evidence put before it; the evidence before the Court of Revision has no bearing on the Tribunal’s decision.

Further, despite the Appellant’s contention that the Court of Revision refused to allow him to speak at the Court of Revision and that he was never advised of what the Court of Revision decided, the Appellant offered no evidence either orally or in writing to support these claims. The Municipality’s submissions (Exhibit 6) include Notice of the Court of Revision (Tab 14), Minutes of the Court of Revision (Tab 17) which indicate the Appellant was present at the meeting, and Notice of Decision of the Court of Revision (Tab 18). These materials indicate that the Court of Revision heard matters regarding assessments but refused to hear matters regarding design. The Tribunal finds that the Court of Revision was correct in its handling of this matter and that the Appellant was treated fairly as it relates to issues of assessment. The appeal from the Court of Revision’s refusal to hear or decide the appeal fails.

Lastly, regarding costs, the Municipality has requested that costs be awarded against the Appellant in the amount of $5,000.00 for expenses incurred with respect to this appeal. When assessing costs, the Tribunal is bound by the provisions in the Drainage Act and has regard to the guidelines under Rule 28 of the Agriculture, Food and Rural Affairs Appeal Tribunal Rules of Procedure. A landowner has the right to appeal an assessment that affects him and should not be concerned that costs will be imposed against him if he is unsuccessful. Costs may be appropriate when an appeal is frivolous or vexatious, or the conduct of the party is clearly unreasonable or in bad faith. The Tribunal finds that such is not the case here and, as a result, costs against the Appellant are not warranted in this instance.

Order of the Tribunal

For the reasons stated herein, the Tribunal orders that:

1. The appeal of Thomas and Jeannette Ward under Section 54 of the Drainage Act is hereby denied.

2. In Schedule of Assessment No. 6 of the Report, the ‘Area Affected’ as shown to apply to the S½ Lot 6, Con. R2NLR shall be changed from 1.08 hectares to 7.68 hectares.

3. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works and such costs include the Engineer’s fees and expenses for preparing the Report as well as the Engineer’s fees and expenses for attending and participating in this hearing.

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

Dated at Tecumseh, Ontario this 30^th day of October, 2015.