OAFRAAT 2016

Appeals were filed regarding the assessments and engineering fees in the revised Engineer's Report for the Zavitz Municipal Drain and associated branch drains.

The Tribunal held a second interim hearing to review compliance with its previous orders.

The Tribunal issued further interim orders directing the engineer and municipal drainage superintendents to conduct site visits, review culvert sizes, adjust allowances, and reallocate engineering fees between the Town of Fort Erie and the City of Port Colborne.

The appellants appealed the revised drainage assessments for their agricultural property under the Drainage Act following two property severances.

The Town had directed the engineer to revise the assessment schedule to reflect the severances, which resulted in a disproportionate assessment per acre for the appellants compared to a similar neighbouring property.

The Tribunal found the engineer's revised assessment was not fair or transparent, as the engineer could not explain the anomalous results or the precise application of his proximity and envelope concepts.

The appeal was granted, and the Tribunal re-balanced the assessments among the severed properties based on the original schedule.

Several landowners appealed the Engineer's report for the Royal Oak Municipal Drain under section 48(1) of the Drainage Act, challenging the costs and necessity of certain proposed works, including hydro seeding, riffles, Flexamat erosion control, tree removal, and farm crossings.

The Tribunal granted the appeal in part, ordering modifications to the report to require hand seeding on flat areas, the use of the lowest-costing Flexamat-type product, the removal of an at-grade crossing on one appellant's property, and consideration of an allowance for loss of access.

The Tribunal otherwise upheld the report's recommendations, finding the proposed works necessary and technically sound.

Following a previous Tribunal order directing an engineer to amend a drainage report, the appellant appealed the revised assessments.

At the hearing, the appellant presented no evidence challenging the assessments, instead attempting to relitigate the previously decided issue of how excavated material should be divided.

The Tribunal dismissed the appeal as an abuse of process.

Finding the hearing unnecessary, the Tribunal ordered the appellant to pay partial indemnity costs to both the municipality and the co-appellant.

The appellants appealed the assessment applied to their property for the improvement and maintenance of a municipal drain under section 54(1) of the Drainage Act.

They argued their property was underdrained out of the watershed area and received no benefit from the drain.

The Tribunal accepted the engineer's evidence that the property had a three-metre fall directing surface water toward the drain, indirectly providing an improved outlet.

The Tribunal found the assessment, which had already been reduced by 50% to account for the portion drained out of the watershed, to be fair and reasonable.

The appeal was denied.

The appellants appealed the engineer's report for the repair and improvement of the McClure Drain under the Drainage Act, challenging the watershed area, the Benefit/Outlet cost splits, the treatment of two culverts, and the allowances provided.

The Tribunal accepted the engineer's methodology for the cost splits and the watershed area, noting it was based on detailed field investigations.

However, the Tribunal agreed with the appellants that the easterly culvert should be classified as an erosion control feature and the westerly culvert as the primary access to the appellant's lands.

The Tribunal ordered the engineer's report to be revised to incorporate these culverts into the drain and adjust the Special Benefit assessment for the westerly culvert accordingly.

The appeal was granted in part.

The appellants appealed the special benefit assessments levied against their properties for the replacement of access bridges and the restoration of their asphalt driveways as part of a municipal drain improvement project.

The Tribunal found that the need to replace the bridges was entirely due to increased flows from upstream residential development that lacked proper stormwater management.

Consequently, the Tribunal granted the appeals, removing the special benefit assessments from the appellants' properties and redistributing the costs to the upstream non-agricultural lands and the municipal road authorities.

The applicant municipality sought permission under s. 76 of the Drainage Act to procure an engineer's report to vary the existing assessment schedule for an inter-municipal drain.

The evidence showed approximately 200 severances and land divisions within the watershed since the original 1981 report, rendering the current assessment schedule outdated and inequitable for maintenance levies.

The neighbouring municipality supported the application.

The Tribunal held that the statutory requirements were met and granted permission to appoint an engineer and obtain a report varying the current by-law assessments.

Seven chicken producers appealed a decision by the Chicken Farmers of Ontario (CFO) denying compensation for losses resulting from a quarantine imposed by the Canadian Food Inspection Agency.

The CFO brought a preliminary motion arguing the Tribunal lacked jurisdiction to grant the requested relief, which included out-of-pocket expenses and lost profits.

The majority of the Tribunal granted the motion in part, finding it had no statutory authority to award compensatory damages or lost profits arising from the quarantine.

However, the Tribunal found it did have jurisdiction to hear claims regarding over and under marketing levies and penalties.

Following the dismissal of an appeal regarding the Pilkington Drain, the respondent Municipality sought full indemnity costs of $23,594.21, arguing the appeal was unreasonable.

The Tribunal found the appellants' conduct was not unreasonable, frivolous, or vexatious.

The Tribunal declined to make a direct costs award against the appellants, instead ordering that the Municipality's costs form part of the cost of the drainage works to be assessed proportionately among all property owners on the drain, in accordance with standard practice under the Drainage Act.

Several landowners appealed the decision of the Court of Revision regarding the Engineer's Report for Branch 'G' of the Dell Municipal Drain in the Municipality of Central Elgin.

The appellants challenged the assessments and the delineation of the watershed boundary.

The Tribunal accepted the Engineer's definition of the watershed area but found that a maintenance schedule was missing from the Report.

The Tribunal also found that the Lyle property received a cut-off benefit for its entire area and amended the assessment schedule accordingly.

The appeals of Somerville, Zovko, and 806584 Ontario Ltd. were granted in part, while the Lyles' appeal was dismissed.

The appellants appealed an Engineer's report for the Mullen Drain under the Drainage Act.

The Tribunal ordered modifications to the report, including centering the open drain on the property line, removing an earth berm and drop inlet structures, and placing excavated material on the Mullen property.

The Tribunal upheld the Engineer's methodology for the benefit and outlet liability assessments but ordered recalculations based on the modified works.

The appellant appealed the decision of the Court of Revision regarding the assessment of his agricultural property for the construction and future maintenance of a municipal drain.

The appellant argued that his land did not hold surface water and received no benefit from the drain.

The Tribunal accepted the engineer's professional opinion evidence that the property sloped toward the drain and contributed runoff, justifying the assessment for outlet and maintenance liability.

The appeal was dismissed, and the assessment was found to be fair and reasonable.

The appellant appealed the quality of construction of a municipal drain on his property under section 64 of the Drainage Act.

He alleged the contractor failed to properly separate logs from brush, failed to level the site, and crushed existing drainage tiles.

The Tribunal granted an extension of time to file the appeal.

On the merits, the Tribunal found that logs were improperly mixed with brush and the site required further grading, but dismissed the claim regarding crushed tiles.

The appeal was granted in part, and the municipality was ordered to complete the grading and sorting of debris.

The municipality sought costs following its successful defence of an appeal by a self-represented landowner regarding the quality of construction of a municipal drain.

The Tribunal found the appeal was devoid of merit, raised issues outside its jurisdiction, and attempted to re-litigate previously decided matters.

Concluding the appellant's conduct was unreasonable, frivolous, and vexatious, the Tribunal awarded costs to the municipality.

The Tribunal reduced the requested full indemnity amount, fixing costs at $17,727.89 on a partial indemnity basis, and ordered the amount be added to the tax roll against the appellant's assessed lands.

The Appellants appealed a municipal drainage report (the Spriet Report) under s. 48(1) of the Drainage Act, seeking to have it set aside and replaced with their own private drainage works.

The Tribunal found that the Appellants' private works were undertaken without authorization and did not provide a benefit commensurate with the estimated costs to the watershed.

The Tribunal preferred the evidence of the municipality's drainage engineer over the Appellants' civil engineer, concluding that the Spriet Report provided a sufficient outlet and met design standards.

The appeal was dismissed and the Spriet Report was adopted.

The appellants appealed the Engineer's Report and the decision of the Court of Revision regarding the St. Agatha Municipal Drain 2015 under the Drainage Act.

The Tribunal found that the benefits of the proposed drainage works were commensurate with the estimated costs and that the project should proceed.

However, the Tribunal ordered modifications to the proposed works, substituting the Haid Branch Alternative, and adjusted the assessments for specific properties, including applying a reduction factor to pond areas.

The appeals were granted in part.

The appellant appealed the quality of construction of the Van Beets Municipal Drain under section 64 of the Drainage Act.

The appellant raised numerous issues, including constitutional, criminal, environmental, and common law claims, which the Tribunal found were outside its jurisdiction.

On the core issue of construction quality, the Tribunal found that the appellant failed to prove the drainage works deviated from the engineer's plans and specifications.

The Tribunal accepted the expert evidence of the drainage engineer that the works were constructed in accordance with the report, subject to minor, reasonable field alterations.

The appeal was dismissed.

The appellants appealed the assessments for the Stephenson Branch and the Cuthbert Branch of the Henderson Creek Drain 2015 under section 54(1) of the Drainage Act.

The Tribunal found that the benefit assessment percentages applied to the appellants' property were excessive and reduced them.

The Tribunal also found that it was unreasonable to charge the appellants for the costs of revising the Engineer's Report after other landowners objected to the proposed abandonment of the Cuthbert Branch, as the duty to ensure majority support for abandonment falls on the Engineer and the Township under section 84 of the Act.

The appeal was granted in part, with the assessments revised and the report revision costs removed from the project cost.

The appellant appealed the Engineer's Report for the Setterington Lane Municipal Drain under the Drainage Act, challenging the assessments, the design of the drainage works, and the allowances provided.

The Tribunal found that the proposed work on the appellant's property, which included a large ditch and stormwater management facility, was excessive and unnecessary.

The Tribunal referred the report back to the Municipality with directions to delete the assumption of the existing drain upstream of a certain point, incorporate the construction of a berm as previously agreed upon by the neighbours, and increase the land allowance from $15,000 to $35,000 per acre.