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

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Coleman Municipal Drain 2013 Municipality of North Perth

Coleman Municipal Drain (RE) 2015ONAFRAAT08

STATUTE: Drainage Act

HEARING: February 9-10, 2015 March 24, 2015 April 1, 2015

DATE OF DECISION: April 23, 2015

2015-08

NEUTRAL CITATION: 2015 ONAFRAAT 08

COLEMAN MUNICIPAL DRAIN 2013

MUNICIPALITY OF NORTH PERTH

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 Finlay and Edith McCormick, in North Perth, Ontario, under Section 64 of the Drainage Act about dissatisfaction with the quality of construction of the drainage works completed under the Engineer’s Report on the Coleman Municipal Drain 2013 in the Municipality of North Perth.

Before:

John O’Kane, Vice-Chair; Andrew McBride, Member; Jane Sadler Richards, Member

Appearances:

Rod McCormick – Representative for Appellants Finlay and Edith McCormick

Finlay McCormick – Appellant

Paul Courey – Counsel for Municipality

Jamie Morgan – Drainage Superintendent for Municipality, witness for Municipality

Tom Gibson – Assessed landowner, witness for Municipality

Doug Johnston – Assessed landowner, witness for Municipality

Steve Cronsberry – Marquardt Farm Drainage Ltd. (Contractor), witness for Municipality

Bill Dietrich – P. Eng., Dietrich Engineering Ltd., witness for Municipality

Stan Klassen – Marquardt Farm Drainage Ltd., (Site Foreman), witness for Municipality

Chris Dietrich – Dietrich Engineering Ltd. (Construction Inspector), witness for Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of North Perth (the “Municipality”) in Listowel, Ontario on February 9 and 10, March 24 and April 1, 2015

Patricia Berfelz, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

On November 20th, 2014, the Appellants filed a Notice of Appeal that included a request under Section 100 of the Drainage Act (the “Act”) to extend the time to make a Section 48 appeal from the Engineer’s Report. The aspects of the Notice of Appeal related to the extension of time essentially focused on the design of the drainage works.

On December 3rd, 2104, the Tribunal Chair issued a ruling denying the Appellants’ extension request to make a Section 48 appeal. As a result of that preliminary ruling, the Appellants’ appeal was restricted to issues relating to the quality of construction of the drainage works under Section 64 of the Act.

Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Report parties to this hearing.

The Municipality filed Affidavits of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing, Notice of Continuation of Hearing and Notice of Further Continuation of Hearing.

Background

The Coleman Municipal Drain 2013 began as a request for repair and improvement of an existing municipal drain under Section 78 of the Act. In response to that request, the Municipality appointed Dietrich Engineering Limited (the “Engineer”) who presented a report dated April 8th, 2013 (the “Engineer’s Report”).

The Engineer’s Report described a watershed area of approximately 84 hectares of farmland and some municipal roadways. The outlet for the watershed is the existing open Newbigging Municipal Drain in Lot 31, Concession 3, Municipality of North Perth, Elma Ward, County of Perth.

The drain was proposed as a closed drain system comprised of four sections: the Main Drain; Branch 1; Branch 2; and, Branch 3, using a mix of concrete field tile, High Density Polyethylene (“HDPE”) pipe and concrete catch basins.

The central focus of this appeal related to the upstream section of the Main Drain and to all of Branch 3. The relevant section of the Main Drain runs parallel to North Perth Road Line 84, for a length of approximately 95 metres, from Stn. 1+383 to Stn. 1+478. Branch 3 runs northerly in Lot 62, from the catch basin at Stn. 1+478, parallel to the line between Lot 61 and Lot 62, for a length of approximately 222 metres to a catch basin at Stn. 0+222, on the Lot 61-62 lot line.

Both the relevant section of the Main Drain and Branch 3 were constructed of HDPE pipe. The Engineer’s Report, Division H, Special Provisions at number 18 provided that:

All HDPE pipe shall have a stiffness of 320 kPa. All HDPE pipe shall be BOSS 2000 pipe (or equivalent).

The Engineer’s decision to specify BOSS 2000 (or equivalent) pipe for the relevant sections of the Main Drain and Branch 3 was informed by concerns raised by the Appellants over the potential for tree root intrusion into the municipal drain. The relevant section of the Main Drain along Line 84 is adjacent to a row of eight mature maple trees. Branch 3 lies adjacent to a treed area that makes up part of the boundary between the Appellants’ farm in Lot 61 and the neighbouring farm in Lot 62.

The Appellants’ issues in this appeal focused primarily on the HDPE pipe joints and the potential for tree root intrusion through the joints and into the municipal drain if the joint gaskets failed due to, for example, improper gasket orientation, excess pipe deflection, or the pipe being “ovalized” or compressed out of round.

The word “if” has been underlined and bolded because that was a feature of the entire Appellants’ evidence in this appeal. As these reasons will explain, the Appellants had no reliable evidence, for example, of improper gasket orientation, excess pipe deflection or the pipe being “ovalized”. The Appellants had no evidence of any tree root intrusion into the drain sections under consideration. The Appellants had no evidence of any joint gasket failure. The Appellants had no evidence that the drain was not working exactly as designed.

As explained by Rod McCormick on behalf of his parents, the Appellants Finlay and Edith McCormick, the Appellants had concerns, beliefs and theories about the Coleman Drain 2013, its design and its construction. However, those concerns, beliefs and theories, regardless of how sincerely the Appellants assert they hold them, do not amount to evidence. This was not the first quality of construction appeal made by the Appellants. Given the findings made in the previous appeal and the findings made in this appeal, in any future appeal by the Appellants, they would be well served by consulting with a lawyer and with a drainage engineer or drainage contractor about their issues, and about how to develop the evidence necessary to satisfy the burden of proof.

Issues

The Appellants appealed under Section 64 of the Act, which provides as follows:

Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.

The essence of the Appellants’ appeal was that the drainage works completed under the Engineer’s Report did not comply with the Canadian Standards Association’ (“CSA”) installation standards, manufacturer’s standards, current engineering standards, and current industry standards and, because of this, the drain would fail sometime in the future primarily due to tree root intrusion along those sections adjacent to trees.

In general, for the construction of a drainage works, CSA’s installation standards, manufacturer’s standards, current engineering standards and current industry standards would become the quality of construction standard if the Engineer incorporates those standards into the Engineer’s Report.

The Engineer’s decision about what standards, if any, to incorporate into the Engineer’s Report is fundamentally a design issue and, as already determined by the Tribunal Chair’s preliminary ruling, design issues are beyond the scope of this appeal.

However, once the Engineer designates a particular standard in the Engineer’s Report, the Tribunal can, in a quality of construction appeal under Section 64 of the Act, determine if the drainage works meets the designated standard. The quality of construction is measured against the standard(s) established by the Engineer’s Report.

In a Section 64 appeal, the Appellants have the onus to prove the elements of their appeal, on a balance of probabilities.

Therefore, in these circumstances, the Appellants had the job of proving, for example

(i) that the CSA installation standards or the manufacturer’s standards applied to the constructed works; and, (ii) that the constructed works did not meet those standards.

However, as explained in these reasons, the Appellants failed to discharge their onus of proof.

The Appellants did not satisfy the Tribunal on a balance of probabilities that the Engineer’s Report incorporated the various standards that the Appellants sought to argue.

The Appellants did not satisfy the Tribunal on a balance of probabilities that the quality of construction of the drainage works fell below the standard required by the Engineer’s Report.

Quality of Construction Standards

The Engineer’s Report consists of a narrative, a cost estimate, schedules of assessments, a plan, and a profile, as well as a Division A – General Conditions, a Division C – Specification for Tile Drains, and a Division H – Special Provisions.

Section A.1, entitled “Scope”, clarifies that “These Specifications, the Report and Drawings, govern the supply of labour, materials and equipment necessary to construct the works as shown . . . “.

Section A.7, entitled “Completion of Work”, provides that, among other things, “The work must proceed in such a manner as to ensure its completion . . . with first class workmanship. . . “.

The Engineer’s Report established the standard for the quality of construction of the drainage works as “first class workmanship”.

The Engineer’s Report did not incorporate any particular technical standard for the construction or installation of the drainage works. As an example, the Engineer’s Report did not incorporate as a construction standard that the contractor follow any particular manufacturer’s recommended procedures.

Evidence, Issues and Findings

The entirety of the evidence for the Appellants was provided by their son Rod McCormick who also acted as the representative for the Appellants.

The Appellants assembled a voluminous document brief. Included in that brief were twelve documents related to what the Appellants referred to as “Standard of Practice”. Two documents related to “CSA” and “ASTM” standards. Two documents related to “Root Protection of Drains”. Ten documents related to “Joint Design, Gaskets and Leakage Requirements”. Three documents related to “HDPE Pipe Properties”. Seven documents related to “PVC Pipe”. Much of that documentation was not relevant to issues in this appeal. That documentation was admitted into evidence as part the Appellants’ exhibits because the Tribunal’s rules of evidence are relatively relaxed and the Tribunal is specifically authorized to receive hearsay evidence. The Appellants did not call any of the authors of the various documents referred to above. As a consequence, the Municipality had no opportunity to cross-examine or challenge any of the contents of the Appellants’ documents. In these circumstances and in the context of this appeal, the Tribunal can place very little weight on any of those documentary materials.

Rod McCormick was very knowledgeable about the contents of those documentary materials.

Using his knowledge, Rod McCormick presented his views that the HDPE pipe was not installed properly due to the contractor:

• dropping the pipe into the trench rather than lowering the pipe into the trench
• failing to excavate at each pipe joint to accommodate the larger “bell” end of the pipe
• misaligning the pipe joints and thereby allowing too great a bend or horizontal deflection of the pipe joints
• installing the pipe joint gaskets either reversed or inverted
• failing to “haunch” and/or “compact” the backfill around the pipe
• allowing mechanized traffic over the backfilled pipe causing compaction and/or subsidence of the fill.

Also informing Rod McCormick’s views about the construction of the Main Drain and Branch 3 were his personal observations from the field during construction. In addition, Rod McCormick’s views were shaped by his experiences with a section of drain on his parent’s Lot 61 property where he privately hired the same drainage contractor as the Municipality to construct a “Private Drain” that was connected with the Coleman Municipal Drain 2013 at the catch basin at Stn. 1+478.

A further issue raised by the Appellants related to approximately 12 cubic metres of topsoil that the Appellants assert was removed from Lot 61 during construction and placed over Lot 62.

These reasons will address quality of construction related to each of the bulleted issues above, the private drain and the topsoil.

Dropping Pipes Into the Trench

There was no dispute between Rod McCormick’s evidence that the pipes were dropped into the trench and the evidence of the drainage Contractor (Steve Cronsberry) and the Site Foreman (Stan Klassen) about that issue.

Therefore, we find as a fact that the pipes were dropped into the trench rather than lowered into the trench.

The Engineer’s Report is silent about how the drain pipes were to be put into the trench other than “first class workmanship”.

Rod McCormick did not call any evidence from a drainage engineer or from a drainage contractor about what “first class workmanship” was in respect of the method to put HDPE pipe of the size used on the drainage works into a trench.

Rod McCormick had no evidence that dropping the pipes into the trench caused any damage to any pipe.

The evidence of the Contractor (Steve Cronsberry) and the Site Foreman (Stan Klassen) was clear that had any pipe or gasket been damaged, they would not have used that pipe or gasket.

In respect of the pipe dropping issue, the Appellants’ evidence did not prove any damage to the pipes or gaskets during construction and, therefore, the mere finding of fact that pipes were dropped into the trench does not rise to a quality of construction issue.

Failing to Excavate for the Larger “Bell” End of the Pipe

The HDPE pipe supplied by the Contractor was manufactured by Armtec. The pipe was shipped in six metre lengths and one end (the “Bell” end) is larger than the other end (the “Spigot” end). The pipe is designed so that the Spigot end fits into the larger Bell end. A positive seal between the mated pipes is provided by a rubber gasket that will be discussed in greater detail under a separate sub-heading.

The Engineer’s Report did not specify any particular standard for excavation under the Bell ends of the pipe other than “first class workmanship”.

Based on the literature he had read, Rod McCormick testified that rigid plastic pipes need to be properly supported along their entire length to prevent the pipes from deflecting (bending) in the middle. He explained that too much deflection might interrupt the positive seal at the joints. He testified that key to proper support was creating a “well” in the trench bottom underneath each “Bell”.

The Engineer (William Dietrich), who authored the Engineer’s Report, testified that under Section C.3 of Division C in the Engineer’s Report, the contractor was not required to remedy profile discrepancies that were less than 20 mm. He testified that, since the Bell end of the HDPE pipe was less than 20 mm larger than the Spigot end, the Report did not require any excavation under the Bell end.

He also testified that he had been involved in installing thousands of metres of HDPE pipe and it was “totally unnecessary” to excavate under the Bell end of a pipe of the size used on this drainage works.

Contractor Cronsberry testified that he had owned the drainage contracting company for thirty years and had almost twenty years experience using HDPE pipe with agricultural drains of this nature, and that excavating underneath each “Bell” was “never done”.

The Site Foreman Klassen testified that he had been the foreman for the drainage contractor since 1997 and had previously worked with gasketed HDPE pipe installation “many times”.

The Construction Supervisor (Chris Dietrich) testified that the difference between the Bell and Spigot ends of the pipe was 1 cm or 10 mm. He testified that the difference in the pipe ends did not cause him any concern about the uniformity of support under the pipe. He testified that under Division C of the Engineer’s Report, Section C.3 the design profile for the drainage works allowed for profile variations of less than 20 mm or 2 cm. He also testified that he would have been more concerned about the contractor trying to shave out 5 mm of the trench bottom (half the diameter of the overall difference) at each Bell location.

Rod McCormick did not call the pipe manufacturer or a drainage engineer as a witness to testify about the consequences, if any, of failing to excavate a 5 mm well in the trench bottom beneath the Bell end of the pipe.

In weighing the evidence on this issue we place more weight on the evidence of the Engineer Dietrich, Contractor Cronsberry, and the Supervisor Dietrich, than on the evidence of Rod McCormick.

Rod McCormick’s evidence on this issue was largely theoretical in nature and did not prove, in these circumstances, that any additional excavation was required under the Bell end of the pipes.

Therefore, in these circumstances, the Appellants have not proved that the quality of construction related to excavating beneath the Bell end of the pipes fell below the standard of “first class workmanship” set out in the Engineer’s Report.

Misaligning Pipe Joints

Using a photograph (Appellants’ #92) of the drain trench along Line 84 that he took

during drain construction, Rod McCormick suggested that at least one of the pipes was pushed off the centreline of the trench and jammed against the trench wall. He also suggested that at that spot in the trench, the photograph of that pipe orientation showed that the pipes were horizontally misaligned beyond the manufacturer’s recommended specifications and that misalignment might result in the rubber gasket material at the pipe joint not maintaining an ideal seal. He suggested that with less than an ideal seal at the joint, tree roots could get into the drain pipes.

Rod McCormick did not call the pipe manufacturer or a drainage engineer as a witness to testify about whether the drain pipes at the location of the photograph (Appellants’ #92) along Line 84 were actually misaligned. He did not call the pipe manufacturer to confirm the recommended alignment specifications. He did not call the pipe manufacturer or a drainage engineer to testify about the consequences, if any, of the pipes being horizontally misaligned at that location. He did not call the pipe manufacturer or a drainage engineer or any expert in tree root intrusion to testify that, if there was such a misalignment in the pipes, it would compromise the rubber gasket at the pipe joints.

Engineer Dietrich testified that he was not on site for the construction but, based on his review of the Appellants’ photograph (Appellants’ #92), he had no concerns that any pipes were horizontally misaligned.

The Site Foreman Klassen was asked to look at the Appellants’ photograph (Appellants’ #92) and specifically regarding the alignment of the pipes. Klassen testified the photograph was distorted and where it appeared that the pipes “bent” it was the trench itself that was slightly curved and the pipes were still laying in the middle of the trench floor.

The Construction Supervisor Dietrich testified about the Appellants’ photograph (Appellants’ #92) and described the perspective of the photograph as “deceptive”. He suggested that while the photograph appeared to show the HDPE pipe laying up against the south wall of the trench, that was not actually so. He also testified that he walked the entire length of the Main Drain along Line 84 and along Branch 3 and observed the alignment of the pipes and the joints and he was satisfied with the pipe alignment and the joint alignment. He testified that if he had seen anything at a joint that “looked out of whack” he would have taken measurements to confirm it and would have required the contractor to correct it.

Based on the Tribunal’s own observations of the Appellants’ photograph (Appellants’ #92), it appears that Rod McCormick’s position when the photograph was taken creates an optical illusion that the HDPE pipe in the trench is much closer to the south trench wall.

In weighing the evidence on the misaligned pipes issue, we place more weight on the evidence of the Engineer Dietrich, the Site Foreman Klassen, and the Construction Supervisor Dietrich, than on the evidence of Rod McCormick. The Appellants’ photograph (Appellants’ #92) was more consistent with pipes aligned more or less uniformly down the centre of the trench bottom. That photograph supported the weight of the evidence that the pipes were not misaligned.

Rod McCormick’s evidence on this issue was again largely theoretical in nature. It is also of some significance to our weighing the evidence that Rod McCormick did not raise this issue of misaligned pipes at the time of construction when the trench was open i.e., when the photograph was taken, and the issue, if real, could have been easily addressed by the Engineer and the Contractor. The Appellants’ evidence, in these circumstances, did not prove that any pipes or pipe joints were misaligned.

Therefore, in these circumstances, the Appellants have not proved that the quality of construction related to the alignment of pipes and pipe joints fell below the standard of “first class workmanship” as set out in the Engineer’s Report.

Improper Gasket Placements

The improper gasket issue concerned the Appellants because the Main Drain along Line 84 in proximity to the maple trees and Branch 3 along the Lot 61-62 boundary in proximity to a stand of trees were, in their opinion, at risk of tree root intrusion. The Appellants’ theory was that, if the gaskets were installed improperly, it might lead to tree root intrusion into the drain and that in turn might lead to future costly maintenance or replacement.

The profile drawing in the Engineer’s Report contains one Note that provides “All High Density Polyethylene pipe shall be Bell & Spigot CSA B182.8 joining systems unless otherwise noted.”

The CSA B182.8 contains a number of specifications; one in particular in Section 6 is entitled “Jointing Systems”. That section describes the jointing system as an “elastometric type 1 watertight gasket joint.” In addition, the CSA standard requires that the “type 1” gaskets hold an internal hydrostatic pressure of 74 kPa. The CSA standard directs that the joining procedure be as set out in Section 5.8.2 of CSA B181. Section 5.8.2. of CSA B181 describes the joining procedures very generally.

The Engineer testified that the Contractor supplied a pipe and gasket system that exceeded the specifications in the Engineer’s Report. The joining system of the HDPE pipe actually supplied met the standard of CSA B182.6, which requires the gaskets to hold an internal hydrostatic pressure of 100 kPa or 35 % greater than that specified by the Engineer’s Report.

Rod McCormick testified that he had a distinct recollection from his observations during the construction in September 2013 that, on at least two occasions, he watched as workers incorrectly installed joint gaskets. One instance he recollected was on the Main Drain between the catch basin at Stn. 1+383 and the 45 degree elbow, and the other was along Branch 3. Rod McCormick testified that as he watched this field installation he asked one of the workers in the trench if the gasket he was installing on the Spigot end of the pipe could go on any way or if it was required to go on just one way. He testified the worker told him the gasket could go on any way. He testified that he watched the worker stretch the gasket over the Spigot end and snap it into place without controlling the orientation of the gasket.

Rod McCormick produced a sample gasket for the hearing. Rod McCormick testified that the gasket can only be properly installed one way, but that it was possible to put the gasket on incorrectly either backwards or inverted. Rod McCormick testified that the two field installations he witnessed almost eighteen months ago were installed “inverted”.

Using information that he had gleaned from the pipe and gasket manufacturer, and the gasket samples produced at the hearing, Rod McCormick testified about how the gasket can only be oriented one way, with a white line facing up and toward the spigot end of the pipe.

Rod McCormick also testified that on his private drain, he excavated a number of field connections and discovered what he described as either backward or inverted gaskets.

The evidence of the Site Foreman Klassen was consistent with Rod McCormick’s about how the gasket is to be installed with the white line oriented facing up and toward the Spigot end of the pipe. Klassen testified he had no training from the pipe manufacturer about how to install the gaskets but had learned it on the job. He also testified that the crew working the Coleman Drain 2013 were all experienced workers with ten to twelve years of experience, having also learned gasket installation on the job.

Klassen testified that of the over 100 joints in the HDPE plastic pipe, most were factory installed gaskets. He testified that for any field cut joints, where they had to manually install gaskets, they did those installations on the ground surface rather than in the trench and then carried the field joint pieces into the trench.

On cross-examination, Klassen testified that while he could not be 100 % certain, he did not believe there were any field joints in the pipe between Stn. 1+383 and the 45 degree elbow. He explained that his crew would try to use full length pipe pieces where they could to avoid making cuts and field joints. Klassen testified that he believed there were three to five field installed gaskets on the Main Drain and Branch 3. Klassen also testified that while he did not witness every field joint installation, he would say that there were no gaskets installed incorrectly on the Main Drain or on Branch 3.

The Contractor Cronsberry testified that after Rod McCormick raised issues about incorrect gaskets, he contacted the manufacturer Armtec to determine if an incorrectly installed gasket would suffice. The Tribunal received into evidence an Armtec report dated January 19th, 2015 that confirmed that a backwards installed gasket tested successfully to 15 psi or greater than 100 kPa.

Rod McCormick did not call the pipe manufacturer to testify about the issues, if any, of backwards or inverted gaskets. Rod McCormick did not call a drainage engineer or a drainage superintendent or a drainage contractor to testify about how backwards or inverted gaskets can lead to increased susceptibility to tree root intrusion. The evidence of the Engineer was that in 35 years he had not heard of tree root intrusion in an HDPE agricultural drain. The Contractor testified that, within the industry, he had never heard of tree roots getting into an HDPE pipe. Rod McCormick did not call anyone from the Canadian Standards Association to give evidence regarding their standards for HDPE pipes and gaskets.

The evidence about the field installed gaskets on the private drain was not persuasive of what happened on the Main Drain or on Branch 3.

Rod McCormick’s evidence about his “distinct recollections” about two field gasket installations given eighteen months after the fact had an air of unreality. In addition, other evidence convinced us that Rod McCormick’s evidence on that point was not reliable. First, McCormick testified that he distinctly recalled the field joint assembly taking place in the trench. That conflicts with Klassen’s evidence that field joint assemblies were made out of the trench. Klassen’s evidence makes more common sense that a field assembly that would require measuring and cutting would be done out of the trench where the workers would have more room to work. Second, McCormick testified that he observed the incorrect orientation of the gasket because of the white line on the gasket. The Tribunal had a sample gasket and, frankly, the white line is very difficult to see from further than a few feet, whereas Rod McCormick would have made his observations from several feet away at the top of a trench that was about four feet deep. Third, McCormick testified that one location of a field joint was between Stn. 1+383 and the 45 degree elbow, but Klassen testified to his near certainty that there was no field joint at that location and he gave a reasonable explanation why his crew would avoid the measuring and cutting required to make a field joint in that location. In that respect, the Klassen evidence made more sense to us than the McCormick evidence.

In weighing the evidence on the improper gasket issue, we place more weight on the evidence of the Engineer Dietrich, the Site Foreman Klassen, and the Armtec test results, than on the evidence of Rod McCormick. In addition, our weighing of the evidence was informed by our own observations of the sample gasket.

Rod McCormick’s evidence on this issue was again largely theoretical in nature. He argued that since he had discovered improper gasket placement on his private drain that we should infer there were improper gasket placements on the Main Drain and Branch 3. However, we remained unconvinced that the evidence he developed about the gaskets on his private drain conclusively proved those gaskets were incorrectly installed. In addition, even if he had satisfied us that those private drain gaskets were incorrectly installed, he did not satisfy us that the result would be a faulty joint. In fact, as pointed out in the evidence of Klassen, the Appellants’ photographs of the private drain areas that had been excavated were full of water. Klassen suggested that had those pipe joints been faulty and leaked, that water would have entered the drain pipe at those joints. Therefore, Klassen’s evidence using Rod McCormick’s own photographic evidence provided some evidence against the theory that incorrect gasket orientation would lead to leakage at the joint.

Therefore, in these circumstances, the Appellants have not proved that the quality of construction related to the field installed gaskets on the Main Drain and Branch 3 fell below the standard of “first class workmanship” set out in the Engineer’s Report.

Insufficient or Improper Haunching/Compacting

The Tribunal learned that “haunching” is a process to fill in around the lower half of a pipe in order to create a proper “bed” for the pipe. Haunching ensures that the pipe has uniform support along its length. That support ensures the pipe will not deflect or bend once backfill is placed over the top part of the pipe and once traffic passes over the backfilled pipe.

The Tribunal learned that “compacting” is a process of tamping fill around a pipe to provide support against the pipe shifting laterally in the trench. “Compacting” can be done with a machine or done manually.

Rod McCormick testified that he did not witness any haunching or compacting during the construction of the Main Drain or Branch 3.

Relying primarily on literature that he had obtained through research for this appeal, Rod McCormick testified about his views why haunching and compacting were critical to preventing the pipe from deflecting horizontally or vertically which, he suggested, might result in the loss of joint integrity.

Rod McCormick did not call the pipe manufacturer to testify that haunching and compacting were essential in this drain application. Rod McCormick did not call a drainage engineer or a drainage contractor to testify that haunching and compacting were essential in this drain application.

The Contractor Cronsberry explained that the excavation for the pipe was mostly made by a wheel trencher that creates a trench with a semi-circular bottom and a groove in the bottom centre of it. The exception was at the catch basin locations where a highhoe or backhoe was used for excavation. Cronsberry also testified that in his experience on this type of drain, they normally do not compact the soil around the pipe, and that they had never experienced a failure in a drain that was not compacted. He testified that the Appellants’ photographs showed his crew “blinding” or hand spading soil around the pipe from the top of the trench.

The Site Foreman Klassen testified that they will sometimes haunch plastic pipe when directed to do so by the Engineer, but they were not directed to do so on these drain sections. He testified that his crew hand shovelled the loose soil into the trench around the pipe up to about ¾ of the pipe diameter. From there they rolled the remaining excavated material into the trench on an angle so that the pipe would not be shifted when the soil was backfilled.

The Engineer Dietrich testified that with small diameter pipes such as on these drain

sections, haunching is not necessary if the pipe has been “blinded” or hand backfilled

around the pipe with loose soil.

The Construction Supervisor Dietrich testified that he did not believe this application required compaction and that he saw the pipe was “blinded” to the springline in all locations as he walked the length of the Main Drain section along Line 84 and along Branch 3. Although he did not stay to watch the pipe being blinded along its entire length, he walked the entire length after the blinding was done and he was satisfied with the work. He testified that the concave shape of the trench directs the soil around the pipe. He explained that the pipe was structurally supported by the ground under the pipe and at its haunches.

The Construction Supervisor testified that the Engineer’s Report did not require either haunching or compacting. The Tribunal’s review of the Engineer’s Report confirmed that to be the case.

The photographic evidence supplied by Rod McCormick (Appellants’ #92) showing the trench excavation along Line 84 shows the groove in the trench bottom that Cronsberry testified about. That photographic evidence also informs the Tribunal that the trench bottom created by the wheel trencher is essentially concave, rather than flat, and that the HDPE pipe lies in that concave trench bottom. Therefore, from our own observations of the Appellants’ photographs, it is apparent that the bottom of the pipe rests more or less fully supported by the concave trench bottom.

In weighing the evidence of Rod McCormick and the evidence of the Engineer, the Contractor, the Site Foreman and the Construction Supervisor we are satisfied that neither haunching nor compacting of the HDPE pipe on the Main Drain along Line 84 and on Branch 3 were required by the Engineer’s Report or by industry standards. We are satisfied that the concave trench bottom shape together with the soil blinded in by hand spading around the pipe to approximately ¾ of its diameter, served as sufficient support beneath and beside the pipe.

Therefore, in these circumstances, the Appellants have not proved that the quality of construction related to the haunching or compacting on the Main Drain and Branch 3 fell below the standard of “first class workmanship” as set out in the Engineer’s Report.

Traffic over the Pipe

Using photographs of the area of the pipe installation in Lot 62 along Line 84 that he

took during construction, shortly after the construction was completed, and photographs taken during October 2014, Rod McCormick testified that the photographs showed evidence of machinery tracks oriented right over the buried drain pipe.

Rod McCormick did not allege that the contractor had driven machinery over that location. Rod McCormick did not testify that he had actually observed machinery being driven over that location but rather suggested that his neighbour in Lot 62, Mr. Doug Johnston, had driven or allowed farm machinery to be driven over that location before the trench backfill had been allowed to fully settle.

Rod McCormick theorized that driving heavy machinery over the buried pipe would result in the pipe becoming squashed out of round or “ovalized”, which then would cause the joint gaskets to not perform adequately.

The evidence that Rod McCormick pointed to in support of his theory that the pipe had become “ovalized” in this manner was impressions in the ground that he suggested were consistent with the tires of large farm machinery. He also pointed to several photographs that appeared to show a linear depression in the ground that he said was over the buried pipe. That linear depression showed some standing water that suggested it was at a slightly lower elevation than the surrounding ground.

While that photographic evidence confirmed a slight linear depression in the ground in the vicinity of where the drain was buried, it proved nothing and the Tribunal is able to infer nothing about the state of the pipe itself, or the joint gaskets of the buried pipe.

The evidence of the Site Foreman Klassen was unequivocal that the contractor had not operated any construction machinery over that area.

The evidence of Doug Johnston, the owner of Lot 62, was that he had not operated any heavy machinery over that location. He testified that he had operated a small 60 H.P. loader tractor along that area to pick up stones that had surfaced after the drain construction was completed. He testified that “there was no way” the tractor he used did any damage to the buried pipe. He also testified that he was extremely happy with the drain construction and the drain operation. He explained that, for the first time since he bought that land, he was able to get a productive crop from it due to the drain taking away the water so well from his fields.

When we weigh all this evidence, we find as a fact that no heavy construction machinery or heavy farm machinery was operated over top of the drain in Lot 62 along Line 84. Based on this evidence, we cannot draw any inferences about the state of the pipe or the pipe joints in the vicinity of that area of linear depression in the ground and we cannot make any findings of fact that the pipe has become “ovalized” and we cannot make any findings of fact about the integrity of the pipe joints.

It was open to the Appellants, as part of the appeal process, to approach the Municipality with an offer to fund a camera investigation of the pipes in Lot 62 along Line 84. Had the Municipality consented to such a camera investigation funded by the Appellants, it may have provided actual evidence about the state of the pipes and the pipe joints. Such actual evidence may have served to either satisfy the Appellants that the pipe had not become “ovalized” or, it may have served to confirm their suspicions that the pipe had become “ovalized” and it would have supplied the Tribunal with actual evidence. Even if the Municipality had not consented to such a camera inspection funded by the Appellants, it would have been open to the Appellants to bring a motion before the Tribunal, with proper evidence, seeking an Order permitting such an inspection. However, the Appellants did not pursue either of those alternatives to assemble actual evidence to support their theory. As a result, their theory remains just that.

Therefore, in these circumstances, the Appellants have not proved that the quality of construction related to the traffic over the drain pipe fell below the standard of “first class workmanship” as set out in the Engineer’s Report.

The Private Drain

Much of the evidence and issues that consumed four hearing days related to the Appellants’ private drain works that were constructed entirely on Lot 61 northwest of Stn. 1+478.

The Appellants had a private contract with the Contractor Cronsberry for the installation of HDPE pipe that was connected into the Coleman Municipal Drain 2013 at the northwest side of the catch basin at St. 1+478. That private drain work was constructed sequentially to the Coleman Municipal Drain 2013 construction.

The Appellants’ issues with their private drain work are a matter of private contract between them and the Contractor Cronsberry. The Tribunal has no jurisdiction to address any such issues. This determination will not be a revelation to the Appellants as in their previous quality of construction appeal in 2008, they raised issues about their private drain and that Tribunal ruled those issues were outside Tribunal jurisdiction.

The Missing Soil Issue

The Appellants directed the Contractor on the private drain to backfill all the areas of joints and connections with drainage stone rather than the excavated native soils because the drainage stone would be easier to allow access to joints and connections if needed. That was part of the private drain contract between the Appellant and the Contractor.

As a result of the private drain excavation being partly backfilled with drainage stone, Rod McCormick testified there was excess excavated soil. He did not instruct the Contractor to stockpile that excess soil. In fact, Rod McCormick testified that he watched as the machine operator skilfully spread that topsoil around the boundary between Lot 61 and Lot 62 using the machine bucket to “fling” the soil. Rod McCormick confirmed that he did not stop the machine operator from spreading that topsoil. He also confirmed that when the Coleman Municipal Drain 2013 work and the private drain work were completed, the area at the boundary of Lot 61 and Lot 62 was cleaned and levelled and he was satisfied.

The Appellants produced a number of photographs of the private drain area northwest of the catch basin at Stn. 1+478 where they had made a number of excavations on the private drain at some point after the construction had been completed. Rod McCormick testified that about 12 cubic metres of topsoil was missing from that area, having been spread as described above, onto Lot 62.

The evidence on this missing topsoil is far from satisfactory enough to enable us to make any finding of fact that there is any topsoil missing as the Appellants assert. One telling point of evidence that argues against this being a quality of construction issue is that Rod McCormick was present when the topsoil was being spread and stood silently by. If it had been an issue, then it is reasonable to expect that Mr. McCormick would have said so at that time in September 2013. He had the ability to direct the Contractor to stockpile the 12 cubic metres of soil on his parent’s property. He did not. That fact, coupled with the missing soil first arising as an issue in a Notice of Appeal filed on November 20th, 2014, leads us to conclude that the missing soil issue is a tactical contrivance by the Appellants.

However, apart from the evidentiary issues about the missing soil, it is clear from the Appellants’ photographs that the soil is missing from excavations of the private drain and, therefore, as previously determined, such issues are outside the Tribunal’s jurisdiction.

Remedies

The Appellants had originally asked for sweeping relief that included abandoning the relevant portions of the drain and refunding all amounts paid by the property owners and developing a new design based on a different pipe and gasket system. During the course of the hearing, the Appellants tempered their requested relief to an order that the trees along Line 84 be cut down and that the trees along the boundary between Lot 61 and Lot 62 be cut down and that the drain be treated “as if” it had been constructed of perforated drain pipe as opposed to a sealed pipe.

As a result of our findings of fact, the Appellants are not entitled to any of the relief requested.

The Respondent Municipality requested a dismissal of the Appellants appeal and two prohibition orders.

The first order requested was to prohibit the Appellants from any further Drainage Act appeals except by leave of the Tribunal obtained on motion.

The Act grants a number of statutory appeal rights. The Tribunal does not have any authority under the Act to restrict those appeal rights.

The Tribunal has enacted Rules of Procedure to control the process of appeals. In the event a municipality wishes to narrow the focus of an appeal, there are processes available under the Tribunal’s Rules. If a municipality believed an appeal was, for example, frivolous or vexatious, there are processes available under the Tribunal’s Rules to pursue an appropriate remedy. However, prohibiting a right to start an appeal is beyond the Tribunal’s authority and we will not make such an order.

The second order requested was to prohibit the Appellants from interfering with the Coleman Municipal Drain 2013. The example offered by Counsel was the Appellants were allowing silt to get into the drain due to the excavations on the private drain that have remained open for almost eighteen months. The Tribunal finds that there was not sufficient evidence to allow us to make any finding of fact that the Appellants had interfered with the drain in the manner suggested by Counsel and, therefore, we will not make such an order.

If a municipality has concerns that a municipal drain is being or has been interfered with, the Act contains mechanisms to address such concerns.

However, in all the circumstances, we do dismiss the Appellants’ appeal.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeal by Finlay and Edith McCormick is dismissed.

2. The parties shall provide brief written submissions on the question of the costs of the hearing as directed below:

   1. The Municipality shall serve and file written submissions not exceeding ten pages (exclusive of case authorities) within 15 days of the release of these reasons.

   2. The Appellants shall serve and file written submissions not exceeding ten pages (exclusive of case authorities) within 15 days of the receipt of the Municipality’s submissions.

3. The Tribunal panel shall remain seized of this matter until the issue of costs has been determined.

Dated at Brampton, Ontario this 23rd day of April, 2015