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 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Ouellette Drain East

Town of Amherstburg

Ouellette Drain East Town of Amherstburg 2016ONAFRAAT05

STATUTE:

Drainage Act

HEARING:

January 25 and 26, 2016

DATE OF DECISION:

February 8, 2016

2016-05

NEUTRAL CITATION:

2016ONAFRAAT 05

OUELLETTE DRAIN EAST

TOWN OF AMHERSTBURG

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 Mark and Gisele Andrews, Brian & Gail Cecile, Raymond Marentette, and Al Roy of Amherstburg, Ontario under sections 48(1) and 54(1) of the Drainage Act (the “Act”) from the Report of the Engineer and the decision of the Court of the Revision; by Annette Brown of Amherstburg, Ontario under section 54(1) of the Act from the decision of the Court of Revision; and by Josephine Bombardier, John Charlton, Daniel & Judy Croteau, John Dibiase, Leon & Paulette Drouillard, Serge Forte & Donna Mancini, and Joseph & Liboria Sanna of Amberstburg, Ontario under Section 48(1) of the Act on the Ouellette Drain East in the Town of Amherstburg.

Before: Jeffrey Hewitt, Vice-Chair; Edward Dries, Member; Tim Mousseau, Member

Appearances:

Mark & Gisele Andrews – Appellant and representative for the following Appellants:

• Brian & Gail Cecile – did not attend

• Al Roy – did not attend

• Raymond Marentette – did not attend

• Joseph & Liboria Sanna – did not attend

• Serge Forte & Donna Mancini – did not attend

• Josephine Bombardier – did not attend

• Daniel & Judy Croteau – Mr. Croteau attended second day

Christof Borysiak – Assessed landowner and witness for Appellants

Annette Brown - Appellant

John Charlton - Appellant

Aldo Pacitti – Assessed Landowner

Don Joudrey, P. Eng. – Engineer who prepared the Report

Eric Chamberlain – Drainage Superintendent for the Town of Amherstburg

Paul Courey, Counsel for the Town of Amherstburg

DECISION OF THE TRIBUNAL

This hearing was held in the Town of Amherstburg (the “Town”), on January 25 and 26, 2016. The Engineer’s Report that is the subject of these appeals is a report from Stantec Consulting Ltd. dated August 22, 2014 (the “Report”) for the Ouellette Drain East. The Report was prepared by Engineer Don Joudrey, formerly with Stantec Consulting Ltd., who is now employed by the Crozier Baird Engineering firm.

Paula Parker, Clerk of the Town of Amherstburg, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Report parties to this hearing. The Town filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing dated November 27, 2015.

Background

The Ouellette Drain East, a part of the Ouellette Drain, is located in the former Township of Anderdon, now the Town of Amherstburg. The drainage area encompassed by the East portion of the drain is approximately 200 hectares. The Ouellette Drain East watershed area is bounded on the west by the Essex Terminal Railway (“ETR”) tracks and on the east by the 3^rd Concession Road. The north and south limits vary considerably. The Ouellette Drain East drainage area also incorporates several subsidiary branches, including the Matte Beneteau Drain, the North Branch Drain, the Beaudoin Drain and the South Branch Drain. The Ouellette Drain East and its branches currently outlet into the Long Marsh Drain, and ultimately into the Detroit River.

The Ouellette Drain West, another section of the original Ouellette Drain, encompasses a drainage area generally west of the ETR tracks, between the railway and the Detroit River. However, the Ouellette Drain West watershed includes in its watershed a limited area east of the ETR tracks, which flows through a culvert under the railway through the Grondin Drain. This culvert is south of the Ouellette Drain East watershed area. The Ouellette Drain West ultimately outlets to the west into the Detroit River.

Anecdotal evidence suggests that in the area where the Ouellette East and Ouellette West Drains intersect at the railway, there may be or could have been some drainage from the East section westerly to the West section of the Ouellette Drain through a culvert under the Essex Terminal Railway, which currently is out of repair.

The Engineer’s Report that is the subject of this Appeal was initiated originally as a result of a complaint received in July 2004 from a resident on the 2^nd Concession Road regarding flooding on his property. The complaint was investigated by Town staff and a report was presented to Council in September 2004. At that time, the Engineer was instructed to prepare a report for the repair and improvement of the Ouellette Drain to provide a sufficient outlet for the Matte Beneteau Drain and other affected lands, and that the Engineer was to determine whether the East or West part of the Ouellette Drain would be better suited for this purpose. The Town Road Superintendent was also instructed to sign a petition under Section 78 of the Drainage Act for repairs to the drainage problem currently occurring on the 2^nd Concession Road.

Subsequent to onsite meetings and investigations, a draft Preliminary Report was prepared and submitted to Town staff in September 2005. No further action occurred until a Preliminary Report was presented to Council in January of 2012. That Preliminary Report then before Council was dated December 14, 2011, and suggested four alternatives ranging in estimated costs from $325,000 to $916,000.

Council directed the Engineer to conduct a further public meeting and deferred any decision on the consideration of this Preliminary Report.

As a result of further meetings and changes to land uses in the Ouellette Drain East watershed, an amended Preliminary Report dated December 6, 2012, was presented to Council with five alternatives, ranging in estimated costs from $329,000 to $932,000, with the recommended alternative being “Alternative 1A”. This alternative included, among other works, separation of the East and West areas of the Ouellette Drain, incorporating some storm water management work done by a solar farm development, and draining the Ouellette Drain East watershed area easterly to the Long Marsh Drain. At a Council meeting in February 2013, Council directed the Engineer to prepare a Final Report based on the recommended alternative.

The Final Report in this matter was prepared and dated August 22, 2014. It was signed and sealed by Don Joudrey, P.Eng., of Stantec Consulting Ltd.

The Final Report received consideration in April 2015. The estimated cost of the project was $714,097. Further amendments, as a result of the Court of Revision, brought the estimated total cost to $715,921.

Issues for Determination

1. With respect to the Section 48(1) appeals in this matter:

i) whether the benefits to be derived from the proposed drainage works are commensurate with the estimated costs;

ii) whether the drainage works should be modified;

iii) whether the compensation or allowances provided by the engineer are inadequate or excessive.

2. With respect to the Section 54(1) appeals in this matter:

i) whether there should be any reductions in the assessments to Mark & Gisele Andrews, Annette Brown, Brian & Gail Cecile, Raymond Marentette, and Al Roy.

Evidence – Mark Andrews, Appellant

The benefits to be derived are not commensurate with the estimated cost:

Mr. Andrews presented evidence to the Tribunal on behalf of his wife and himself, as well as Appellants Brian & Gail Cecile, Al Roy, Raymond Marentette, Joseph & Liboria Sanna, Serge Forte & Donna Mancini, Josephine Bombardier, and Daniel & Judy Croteau. Mr. Andrews filed a comprehensive document brief which provided an extensive history of the Ouellette Drain from its original construction to present day. The brief also included a chronology of the actions of Council, Municipal staff, and the Engineer in dealing with the current works on the Ouellette Drain East as well as supporting maps, plans and photos.

Mr. Andrews acknowledged that the original request for repair and improvement of the Ouellette Drain stemmed from a request under Section 78 of the Act filed by Kevin Renaud regarding property that is now owned by Dustin Chris & Kelly Soulliere.

He claimed that the Municipality erred in issuing Mr. Renaud a building permit for the lot on which the drain existed as it was known to be subject to periodic flood events at that time. He further claimed that the Municipality knowingly permitted ABW Solar General (First Solar) to reconstruct portions of the existing Ouellette Drain East on their property without the need for an engineering report or by-law under the Act. He contended that this ultimately resulted in higher costs to reconstruct the drain under this Report.

He questioned the accuracy of an apparent reference in the Final Report to ‘over road’ flooding at the 2^nd Concession Road as no historical data was provided to support the statement. He expressed the opinion that the application of the Drainage Act process was not intended to provide drainage improvements to new residential land development.

Mr. Andrews stated that this ‘is not an agricultural drainage project’ as only a relatively small portion of the watershed area is designated as agricultural and the assessment levied against those lands represents an even smaller portion of the total assessed cost. He stated that the agricultural lands do not contribute to the flooding at the 2^nd Concession Road and no owner of agricultural lands requested repair or improvement to this Drain.

As part of his appeal under Section 48, Mr. Andrews stated that the benefits to be derived from the drainage works are not commensurate with the estimated cost. He referenced Section 10(1) of the Act, which speaks to the option of Council to instruct the Engineer to prepare a preliminary report and includes the reference to a ‘benefit cost statement’. Mr. Andrews stated that the Municipality did not obtain a benefit cost statement and, therefore, would be unable to determine if the benefits were commensurate with the costs. He contended that the lands that may be benefited by these works are limited to one residential lot, originally owned by Mr. Kevin Renaud, and a small piece of developable property, owned by Pacitti Contracting Ltd., adjacent to the 2^nd Concession Road.

Mr. Andrews expressed the view that it is incumbent on the Municipality to prove that the project is cost beneficial. He believed that the Act requires a cost/benefit test be applied to new drains and, by logic, should also apply to maintaining or improving existing drains. In cross-examination, he admitted that he had no evidence to confirm that the benefit from the works were not commensurate with the costs.

The drainage works should be modified:

Mr. Andrews expressed the opinion that the drainage works should be designed to flow from the 2^nd Concession Road, westerly, through the ETR lands and along the alignment of the existing Ouellette Drain West to an outlet into the Detroit River. When questioned, he admitted that he could not confirm if the existing culvert that crosses the ETR lands is adequate in size or elevation to provide an outlet for the subject lands near the 2^nd Concession Road. Further, he could not confirm the physical condition nor extent of the blockage in the existing culvert.

He described the channel from the 2^nd Concession Road to the Detroit River as a ‘natural watercourse’. He referenced publicly available topographic mapping from the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA), Natural Resources Canada and the Township of Anderdon, which he claimed supported his position that the natural slope of the land was toward the west. He also entered into evidence a number of photos that depicted surface flows on the property east of the 2^nd Concession Road flowing west. When questioned, he conceded that it was physically possible to construct a drainage works to flow east, counter to the natural grade of the land. He also was unable to identify the order of magnitude of the storm event that produced the flooding depicted in the photos.

He referenced a previous report under the Act, referred to as the N. K. Becker Report dated May 21, 1985, which he believes confirmed that lands on the east side of the ETR flowed westerly beneath the track and outlet into the Ouellette Drain West. In examination, he confirmed that none of the Soulliere lands, the Pacitti lands, or his property appeared to be assessed in the Becker Report or in the current governing by-law for the Ouellette Drain West.

Mr. Andrews stated that the flow length along the Ouellette Drain West from the subject area to the Detroit River (2.7 km) is shorter than the flow length from the subject area along the Ouellette Drain East to Marsh Creek and then to River Canard (1.6 + 4.0 = 5.6 km). He also stated that the Report did not address the existing condition or the potential for long-term maintenance costs on Marsh Creek. Mr. Andrews presented no additional studies or data related to potential long-term maintenance costs on the Marsh Creek.

Mr. Andrews questioned the statement in the Report related to the 2^nd Concession Road culvert being lower than the culvert under the ETR tracks as verification of an easterly flow in the Ouellette Drain East. His opinion was that the road culvert had settled over time due to extensive vehicle traffic over it. However, he offered no evidence to support that claim.

He also entered into evidence an elevation on the Ouellette Drain East, east of 2^nd Concession Road extracted from the current Report and an elevation at the Detroit River extracted from a 1934 report. He claimed this data confirmed that the potential drain gradient to the west was significantly greater than that to the east. However, when questioned, he could not confirm that these elevations were based on the same datum. He acknowledged that the design gradient of the Ouellette Drain East as shown in the Report was 0.114%. He claimed that this design gradient was insufficient for drainage flow and would require a high degree of future maintenance. In cross-examination, he stated that the design grade for the open drain should be in the order of 0.20%. He also confirmed that he could offer no detailed survey data to confirm that this grade could be achieved but he relied only on the historical reference points.

Mr. Andrews claimed that the estimates of cost for the various alternatives in the iterations of the preliminary reports were inaccurate and misleading.

He did not accept that the data supports the conclusion that the most economical option is to take the flows from the area around the 2^nd Concession Road to the east versus the west. He expressed the view that the cost of future maintenance on the downstream reaches of the drainage system, most notably Marsh Creek, must be included in the rationalization of the alternatives.

The compensation or allowances provided are excessive:

Mr. Andrews contended that First Solar undertook construction activities along the alignment of the Ouellette Drain East without any by-law authority under the Drainage Act. It was his position that First Solar is not eligible for an allowance under Section 31 as the drain was not constructed by requisition or petition under the Act. Consequently, he expressed the view that an allowance under Section 31 is not permitted under the Act and, therefore, cannot be assessed to the upstream lands as part of the cost of the Drain under the Act. He offered photographic evidence that was described as depicting disruption of the existing Ouellette Drain East by the construction of the storm water management scheme on the First Solar property. He contended that it is an abuse of the Act if the Municipality allowed First Solar to modify an existing municipal drain outside the current by-law. Mr. Andrews stated that an allowance paid to a ‘multi-million dollar solar farm installation’ is beyond the purpose and intent of the Act.

Mr. Andrews understood that the allowance under Section 31 was calculated as the cost to excavate the portion of the Drain that would ultimately be incorporated as part of the Report at a rate of $7 per cubic metre. He stated that there was no justification as to that value.

Mr. Andrews claimed that the Engineer has never provided any explanation as to the origin of the allowances provided under Section 29. With regard to the allowance provided to the Soulliere and Pacitti properties, it is Mr. Andrews’s opinion that neither should receive an allowance as the works will significantly improve their properties and thus they should not be entitled to an allowance nor should the upstream lands be assessed any part of the cost of those allowances. Similarly, he expressed the view that the proposed works will provide a significant benefit to the First Solar lands as it forms part of their storm water management system and the property should not be provided an allowance under Section 29.

Assessments Issues:

Mr. Andrews declared that the Benefit assessments levied under Section 22 of the Act against the Pacitti, Soulliere, and First Solar lands are inadequate. He claims that the Report contained no explanation of these values nor were they adequately explained by the Engineer at the Court of Revision. He also asserted that the Special Benefit assessments levied under Section 24 of the Act against the Pacitti and Soulliere properties are inadequate. He expressed the view that Pacitti asked for the relocation of the Drain through his property to better suit development and, therefore, he should be assessed 100% of the cost related to that work.

Similarly, he argued that the Soulliere property will be enhanced by the partial enclosure of the Drain across his frontage and this option has not been offered to any other owner on the Matte Beneteau Drain.

Mr. Andrews pointed out that the upper portion of the Ouellette Drain East may have been enclosed with a 300 mm diameter tile without a proper report and by-law under the Act. The records provided suggest that the open portion of the Drain through this reach was enclosed sometime between 1932 and 1956. He contended that the upstream property owners cannot now be assessed costs to correct this oversight.

Mr. Andrews stated that the assessments levied against the lots generally served by the Matte Beneteau Drain should be reduced by 75% and his lot by 100%. He stated that his lot has no connection to the drainage system along the 2^nd Concession Road and the lots on the west side of the road are graded and hence drain toward the west. He provided photographic evidence of ponding in the rear of the lots adjacent to the east side of the ETR tracks. The photographs also depict culverts under the ETR tracks, north of the Ouellette Drain East which convey the runoff from the rear of the lots on the east side of the ETR tracks, and across the tracks westerly to an eventual outlet into the Ouellette Drain West. He also provided topographical survey data that suggest that the lots are graded from east to west. He claimed that a poorly defined system of open swales, which may or may not exist on the Railway property, carries the flows to these culverts. In cross examination, he confirmed that all of the lots assessed to the Matte Beneteau Drain have the legal right to use that drain and it is the owners’ responsibility to develop their private systems to make best use of the drain.

Mr. Andrews asserted that the Appellants were not provided with an assessment rationale or detailed calculations of the assessments. A hard copy of the detailed assessment calculations was made available by the Municipality to the Tribunal and Mr. Andrews during the first day of the hearing. Mr. Andrews reviewed the detailed calculations and, subject to the Appellants’ specific assessment appeals, accepted the methodology applied by the Engineer to develop and distribute the assessments.

Mr. Andrews felt that the lands west of the ETR tracks in the watershed of the Ouellette Drain West should be assessed a portion of the costs of this work. He stated that the lands will benefit by the removal of runoff now taken to the east that would have naturally flowed to the west. He also expressed the opinion that the westerly, enclosed portion of the Ouellette Drain East has flowed west since its construction some time before 1956. In cross-examination, he conceded that there is no historical evidence to support the premise that the lands served by the Ouellette Drain East ever flowed west. Further, no hard data was presented to support the direction of flow of this portion of the Ouellette Drain.

Mr. Andrews suggested that the $60,000 cost for the preliminary design work be assessed against the Ouellette Drain West. He expressed the view that this value was arbitrary and should be revised to reflect the actual engineering fees incurred between 2004 and 2013.

Evidence – Christof Borysiak, Witness for Mr. & Mrs. Andrews

Mr. Borysiak, who is an assessed landowner affected by this Report but is not an appellant, gave evidence at the request of Mr. Andrews. Mr. Borysiak shot video from both the top of the ETR embankment and at its base near the culvert that runs under the tracks on the alignment of the Ouellette Drain East. The video taken from on top purports to show water ponding on the east side of the embankment following a rain event. The video taken at the base purports to show that the water east of the embankment actually flows to the west through the culvert. Mr. Borysiak’s evidence was limited to this video.

Evidence - Annette Brown, Appellant

Ms. Brown’s appeal was limited to s. 54 of the Act. To the extent that they related to her particular circumstances, Ms. Brown adopted the evidence and submissions presented by Mr. Andrews. She also presented her own evidence and submissions that were unique to her property.

Ms. Brown stated that she would receive no benefit from work on the Ouellette Drain East until the Matt Beneteau Drain is repaired and improved. She described the various issues with the Matt Beneteau Drain and her efforts over the years to have that drain maintained, repaired or improved. She expressed the view that she should not be assessed any cost for the Ouellette Drain East under the circumstances. When questioned, she confirmed that she does not have an issue with the value of the assessment levied against her property for the Ouellette Drain East but does not believe that work should be done without significant improvements on the Matte Beneteau Drain.

Evidence – John Charlton, Appellant

Mr. Charlton has lived on his property for approximately 35 years. He stated that, to the best of his knowledge, the Ouellette Drain flowed in a westerly direction and it provided service to the lands between the 2^nd Concession Road and the 3^rd Concession Road. He claimed that the flow in the Drain was to the west and it crossed the ETR tracks and spilled into a ‘large open drainage tract’ west of the railway, which is often subject to flooding. He claimed that the Drain continued west to an ultimate outlet into the Detroit River.

Mr. Charlton acknowledged that the drain across the frontage of his property is a tributary drain that outlets into the Ouellette Drain East. He reported that he has no issue with the drainage system as it affects his property. He felt that the Municipality and the Essex Region Conservation Authority (ERCA) erred in granting a building permit to Mr. Renaud at the outset. He also believed it unfair that the developers of large parcels are seeking drainage improvements on their respective properties at the expense of local residential lots. Mr. Charlton requested that the flow direction of the Drain remain as he believes it to be, to the west, toward the Detroit River.

Aldo Pacitti – Assessed Landowner

Mr. Pacitti spoke only to clarify his intentions regarding his property. He claimed that his father bought the property in 1978 for his sister with the hope to build on that property. She ultimately bought elsewhere and, consequently, Mr. Pacitti decided to develop the property commencing in 2003. He expressed concern about the impression the neighborhood may have about his intentions. He confirmed that he wants to be a good neighbor and develop the land properly.

Evidence – Don Joudrey, P. Eng., Engineer who Prepared the Report

Mr. Joudrey acknowledged that the completion of this Report has extended over an inordinate length of time. He confirmed that he has been responsible for the creation of the Report and assessments in its various stages throughout the history of this project. He confirmed that the final version of the Report is as shown in Exhibit 2, Tab 2. He confirmed that the final version of the Schedule A – Schedule of Assessment, which was amended by the Court of Revision is as shown in Exhibit 2, Tab 3. He also confirmed that the detailed calculations of his assessments, as revised by the Court of Revision, is shown in an excel spreadsheet entered as Exhibit 6.

Mr. Joudrey acknowledged that a number of preliminary reports under the provisions of the Act were prepared in relation to this project. He stated that the content and recommendations in each preliminary report reflected the analysis, field conditions, land use circumstances and potential construction costs that existed at the point in time that the various reports were prepared. As the project extended over a long period of time, he argued that the conditions changed and hence the recommendations in the reports changed. He declared that there is no restriction under the Act as to how many preliminary reports may be published on a project.

Mr. Joudrey confirmed that the repair and improvement of the Matte Beneteau Drain proper was not included as part of this project. He understood that this drain did not have a sufficient outlet into the Ouellette Drain East and reasoned that the Ouellette Drain East had to be improved before the Matte Beneteau Drain could be improved.

Mr. Joudrey acknowledged that consideration was given to directing the flows from the subject lands westerly to the Ouellette Drain West and went so far as to include that option as a recommendation in a preliminary report (2005 and 2011). He also confirmed that when this option was made public, it received immediate opposition from Point West Golf Course through which the Drain passed. It became apparent that the reconstruction of the Ouellette Drain West through Point West Golf Course would be complicated and expensive due to the timing restrictions, limited working corridor and restoration requirements.

Mr. Joudrey stated that he became aware that First Solar was in the process of developing their property through which the Ouellette Drain East passed. He understood that they would require some type of storm water management on the site and also appreciated that the development could impact the Drain.

Mr. Joudrey advised that he gave consideration to incorporating the storm water management works on the First Solar property with the required improvements to the Ouellette Drain East. His testimony was that First Solar could proceed to build a storm water management system on their property that would serve their needs if no further improvement of the Ouellette Drain East occurred, but that it could also be incorporated into improvements of the Ouellette Drain East should that occur. As part of the discussions with First Solar, Mr. Joudrey committed to compensate First Solar for works done on their property that could be incorporated into the design of improvements to the Ouellette Drain East subject to the report being adopted by Council.

Mr. Joudrey testified that he developed the final design for improvements to the Ouellette Drain East to be wholly contained within the First Solar property; to require the westerly reach of the storm water management channel constructed by First Solar (Sta. 2+960 to Sta. 4+005) to be significantly deeper; and to incorporate fully, with no additional works required, the easterly reach of the storm water management channel constructed by First Solar (Sta. 4+005 to Sta.4+292). He testified that the design gradient of the channel (0.114%) was a very good gradient in the very flat topography found in this area. He also pointed out that the design gradient of the Ouellette Drain West as shown in the Becker report dated May 21, 1985 (Exhibit 3, Tab30) was to be .05% and .08% both of which are considerably less than that achievable on the Ouellette Drain East.

Regarding allowances provided to various property owners on the project, Mr. Joudrey testified that he found no record of an allowance paid to any owner for land taken to build the Ouellette Drain East in any previous by-law. He testified that the new open drain on the First Solar property was to be significantly wider than any previous work and land would be lost to the Drain. Mr. Joudrey confirmed that he provided an allowance under Section 29 only for the area of land lost. He testified that no allowance was provided for land occupied by earth berms constructed on the First Solar property as part of their development. Similarly, land would be required on which to build the enclosed Drain. He testified that allowances under Section 29 were consequently included for the properties owned by Pacitti Contracting Ltd., Chris & Soulliere, and Frederic & Tann.

Further, Mr. Joudrey provided an allowance under Section 31 of the Act to First Solar for the incorporation of the works that they had done at their cost on their property that was subsequently made part of the Ouellette Drain East. He testified that the allowance was based on a verifiable volume of material excavated by First Solar along the alignment of what would now become the Ouellette Drain East. The estimated cost of that excavation ($7 per cubic meter) was discounted as compared to the value assumed for the current construction cost which was $10 per cubic meter.

It was Mr. Joudrey’s opinion that the existing culvert on the alignment of the Ouellette Drain East was plugged. Further, he believed that the apparent flow to the west at the west end of the culvert that crosses under the ETR tracks on the alignment of the Ouellette Drain West as shown in the Borysiak video was actually the pumped discharge from the storm water management pond on the Pacitti Contracting Ltd. property. He acknowledged that the language in the Becker Report referenced flow from east to west across the ETR property but noted that the reference was to the crossing on the Grondin Drain, which is a tributary of the Ouellette Drain West. He contended that none of the lands assessed to the Grondin Drain are provided outlet by the Ouellette Drain East.

Mr. Joudrey referred to his detailed assessment calculations depicted in Exhibit 6. He pointed out that the cost of each specific reach of the work was broken out and assessed to the lands specifically affected by that reach. He confirmed that the outlet assessment levied against each property was adjusted to an equivalent runoff basis using runoff coefficients consistent with the various land uses. He confirmed that Special Benefit assessments were developed and assessed separately. The remainder of the project cost was split as between Benefit and Outlet Liability and levied against all lands and roads in the watershed.

He testified that he had calculated all of the engineering cost expended on this project up to the second preliminary report as being in the order of $140,000. Within his assessment schedule, he included an engineering cost of $70,000 to be assessed as part of the cost of the work and $70,000 to be assessed as a Benefit directly to the Town of Amherstburg as owner of the 2^nd Concession Road. When questioned on this point he later clarified that the $70,000 to be assessed to the Municipality was included in the Outlet Liability assessment against the 2^nd Concession Road.

Mr. Joudrey testified that the repair and improvement of the Matte Beneteau Drain was never part of the works contemplated in the Report for the Ouellette Drain East improvements. Mr. Joudrey stated that the works specified on the Ouellette Drain East would provide a sufficient outlet for whatever improvements are contemplated on the Matte Beneteau Drain. However, he believed that he had no authority to expand the Report to include the Matte Beneteau Drain. He also expressed the opinion that the Long Marsh Drain will provide an adequate outlet for the Ouellette Drain East. He did not believe that there would be any difference in the long-term cost to maintain the Drain reconstructed under this Report whether it flowed east or west.

It was Mr. Joudrey’s opinion that the Long Marsh Drain will, now and in the future, continue to provide a sufficient outlet for the Ouellette Drain East. He described the Long Marsh Drain watershed as a large, long watershed. As the Ouellette Drain East is near the downstream portion of this large watershed, the peak flows from the Ouellette Drain East will enter the Marsh Creek Drain and be removed before the peak flow on the Marsh Creek Drain reaches the confluence of these two drainage systems.

Mr. Joudrey offered comment concerning the status and rights of use of the culverts and apparent ditching along the east side of the ETR tracks north of the current crossing on the alignment of the Ouellette Drain East.

While acknowledging that these culverts may carry water from the east to the west side of the tracks, it was his opinion that the culverts are privately owned by the Railway. He testified that the ETR has the right to use the shallow, inconsistent, swales on the ETR property that carry water to these culverts. The privately owned lands immediately adjacent to the east side of the ETR property have no right to collect and discharge runoff into the swales or the culverts. Based on the condition of the Ouellette Drain West downstream of the ETR property, Mr. Joudrey concluded that the private properties east of the ETR lands in this immediate area have neither a legal nor sufficient outlet provided by these private drainage systems on the ETR property.

Mr. Joudrey acknowledged that, at the 2^nd sitting of the Court of Revision, he recommended adjustments be made to the allowances for the Soulliere and Tann properties. This altered the total cost of the project. He also acknowledged that a revised Schedule of Assessment was then presented that incorporated both this change in the project cost as well other adjustments made necessary by successful appeals to the Court of Revision filed against the assessments from various landowners. Further, he confirmed that the value of the Special Benefit assessment of $60,000 shown in the Report to be levied against the 2^nd Concession Road should actually be $70,000. Mr. Joudrey asked that an order of the Tribunal confirm these changes.

Evidence - Eric Chamberlain, Manager of Public Works and Drainage Superintendent

Mr. Chamberlain confirmed that Ms. Brown had filed complaints concerning the condition of the Matte Beneteau Drain. He also described various works that had been carried out by the Municipality over the years to address the issues on this drain. Mr. Chamberlain testified that meaningful improvements on the Matte Beneteau Drain could not be considered until a sufficient outlet for this drain was provided into the Ouellette Drain East. This necessitated improvements to the Ouellette Drain East.

Mr. Chamberlain expressed the opinion that he had no authority to undertake any work or repair on the culvert under the ETR property on the alignment of the Ouellette Drain East as it is not included in any previous report on this drainage works under the Act. He stated that he believed the option to improve the Ouellette Drain East and maintain its easterly flow direction to be the most efficient and cost effective approach. Based on his knowledge and experience related to the Long Marsh Drain, he confirmed that he is confident that the continued flow from the improved Ouellette Drain East into this outlet will have no negative functional impacts.

Mr. Chamberlain reported that $30,000 of the engineering fees charged to the Municipality on this project has already been credited to the drain account. He also confirmed that half of the engineering cost to complete the earlier studies on the Drain ($70,000) would be absorbed by the Municipality. He believed that, of the total estimated engineering cost of $202,020 as shown in the Final Report, the Municipality has committed to absorb approximately half of that cost and the remainder is a reasonable amount to expect to be included in a report of this magnitude. He concluded that the landowners were not disadvantaged by the necessity to bear inordinately high engineering costs.

Mr. Chamberlain confirmed that he would be quite willing to accept a request to repair and improve the Matte Beneteau Drain upon the completion of the works on the Ouellette Drain East, as it is instrumental in providing a sufficient outlet for the Matte Beneteau Drain.

Findings

Benefits to be derived from the drainage works are not commensurate with the estimated cost thereof:

While it was true that the Municipality did not obtain a benefit cost statement under Section 7(2) of the Act, it is not a statutory requirement to do so. The Tribunal notes that the vast majority of reports for the repair and improvement of existing municipal drains under Section 78 of the Act do not include a benefit/cost statement. The absence of this statement does not invalidate the Report.

A municipality has an obligation under Section 74 to keep a drain in repair or give consideration to improvements requested under Section 78 even if the request comes from a single landowner within the watershed. No consideration may be given to the size or use of the lands requesting the improvements. The Act was not intended to provide drainage improvements to only agricultural lands. While a municipality does have the option not to proceed with a request for works under Section 78, that decision may be appealed under Section 5(2) of the Act.

It was suggested that, in this instance, the Municipality and ERCA failed in their duty by issuing a building permit to Kevin Renaud who subsequently built a house on a property locally known to periodically flood. No evidence was presented to confirm that this decision was made by either body in contravention of their zoning by-laws or approval process. It must be concluded that the permit met all requirements at the time and the property was lawfully developed.

The evidence is clear that First Solar reconstructed a portion of the Ouellette Drain East on their property without requesting or receiving a new report for that work under the Drainage Act and the subsequent by-law that would authorize that work. Clearly, they undertook that work at their own risk and could have been ordered at any time to restore the Drain to the standard described in the governing by-law or request a new report under the Act that would redefine and recognize the works done and incorporate it into a new by-law. While this is not a common practice, some municipalities, working in close concert with developers, have accepted the risks and adopted this approach. In this case, the Engineer’s evidence was that the design of the storm water management works on the First Solar property was coordinated with the potential design of the Ouellette Drain East on a revised alignment at an early stage. No evidence was presented to confirm that this approach ultimately resulted in an increase in the cost of the project.

The drainage works should be modified:

The Appellants contend that the lands currently subject to flooding adjacent to the 2^nd Concession Road should be drained to the west via the Ouellette Drain West or an improved version thereof. They contend that the water has flowed west across the ETR property historically and continues to do so to this day. The westerly route was improperly described as a ‘natural watercourse’ as it has had no such status since it was constructed under a by-law as described in a report by Newman dated August 21, 1920. Since that time, it has been subject to statute law, not common law. The distinction is important with regard to the right of drainage or the right to modify a watercourse or drain that carries the water. A drain constructed under the Act need not be harmonious with the natural land contours but can collect and direct flows to outlets that could not be achieved in a state of nature. This appears to the circumstances here since at least the adoption of a report for the Ouellette Drain East in 1932 and the Ouellette Drain West in 1934. It was also accepted that it is possible to construct a drain that flows in the opposite direction to the natural gradient of the land.

The evidence of the Engineer and the Drainage Superintendent was that the culvert under the ETR tracks on the alignment of the Ouellette Drain East is plugged and, therefore, the water cannot flow west. Their evidence was based on field observations. Mr. Borysiak’s video would appear to challenge that evidence. However, further evidence by the Engineer was that this flow may be caused by pumped flows that discharge into the drain at this point and continue west. No evidence was brought to refute this consideration or the notion of a plugged culvert. The Tribunal accepts that the existing culvert under the ETR is plugged and has not carried flow to the west for some time.

The Tribunal accepts the evidence of the Engineer related to an interpretation of the 1985 Becker Report. It illustrates an east/west split in the watershed at the culvert across the railway on the alignment of the Ouellette Drain East. It also illustrates that the lands on the east side of the ETR lands that are assessed to the Ouellette Drain West do so by way of the Grondin Drain, which is a tributary of the Ouellette Drain West.

The Appellants make the argument that the potential length of the Ouellette Drain West from the east side of the 2^nd Concession Road to the Detroit River is shorter than the Ouellette Drain East from the same point of commencement to River Canard, although the majority of that length is along the Marsh Creek Drain. They also claim that the potential design gradient of the channel will be greater along the westerly route. The Engineer gave clear evidence that the Marsh Creek Drain is a sufficient outlet for the Ouellette Drain East and it is not necessary to contemplate improvements on the Marsh Creek Drain at this time. This evidence was supported by the Drainage Superintendent. The Tribunal accepts the evidence of the Engineer.

The evidence provided by the Appellants concerning the potential design grades of the Drain could not be supported. It is not appropriate or accurate to select elevation data from documents having no common reference datum.

The argument is moot in any event as the Tribunal accepts the evidence of the Engineer in confirming the adequacy of the current design grade selected for the Ouellette Drain East.

The Tribunal does not accept the Appellants’ position that it is necessary to include the cost of potential improvements or future maintenance costs to the Marsh Creek Drain as part of the preliminary investigations. This would only apply if the Marsh Creek Drain was not considered a sufficient outlet under the Act, in which case the Engineer would be bound by the legislation to carry the works downstream along the Marsh Creek Drain to achieve that sufficient outlet. The evidence of the Engineer, supported by the Drainage Superintendent, is that the Marsh Creek Drain is a sufficient outlet for the Ouellette Drain East.

The compensation or allowances provided are excessive:

While the Tribunal accepts the evidence that the Municipality allowed First Solar to undertake works on the alignment of the Ouellette Drain East without a by-law under the Act, it does not accept the position that First Solar is not eligible for an allowance under Section 31. It is clearly set out in the Report that portions of the works undertaken by First Solar are to be incorporated into the proposed by-law and there is no provision in the legislation that would exclude First Solar from receiving compensation under Section 31 for those works.

Although the value of the allowance received by First Solar under Section 31 was criticized, no evidence was presented to suggest it was excessive. The evidence of the Engineer was that the value of this allowance was actually discounted to the estimated cost for this same work. The Tribunal accepts this evidence.

The evidence of the Engineer was that an allowance under Section 29 of the Act was provided to every property owner on whose land the construction of the Drain will occur. The evidence is clear that the construction of the Drain on the various properties will require the use of the land on which to construct the Drain. The fact that the construction of a drainage works on a property will actually improve the property is not a proper justification for not providing an allowance under Section 29 to that property. Recognizing the value of improvements to a property by the construction of a drainage works can be addressed through levying a Benefit assessment against that property but not by withholding an eligible allowance to that property. No evidence was brought to suggest that the values of the allowances calculated were excessive or improperly assigned.

The grounds for an appeal to the Court of Revision are set out under Section 52(1) of the Act. The grounds reference issues related to assessments only. Further, under Section 56 of the Act, the Clerk of the municipality is given authority to alter the assessment only. No provision under the Act exists that would allow the Court of Revision to alter an allowance provided under Section 29. The Tribunal has the authority to hear an appeal of this nature under Section 48(1) and make an order and will undertake to do so in this decision.

Assessment Issues:

The Appellants initially identified that detailed calculations of the methodology and development of the assessments were not included in the Report. It should be understood that the inclusion of detailed assessment calculations is not a requirement under the Act nor is it common in the vast majority of reports published under the Act. However, this detailed information was provided to Mr. Andrews at the end of the first day of the hearing. Upon review, Mr. Andrews advised that he understood the methodology and that, subject to the issues he has raised, accepted the assessments as calculated.

The evidence presented by the Appellants indicated that the current description of the Ouellette Drain East does not match that of the by-laws that govern the work. They argue that the upstream lands cannot now be assessed to correct these discrepancies. The Tribunal acknowledges the discrepancies in the governing by-laws but concludes that the current works are so vastly different than that described in the old by-laws that no real costs are directly related to correcting those discrepancies. The landowners within the watershed are being assessed for the works that are being recommended in the current Report.

Mr. Andrews provided evidence to suggest that he, as well as other Appellant property owners on the west side of the 2^nd Concession Road, do not make use of the Matte Beneteau Drain to which they are assessed and, therefore, should not be assessed to the Ouellette Drain East. He contends that their lots are provided drainage by a system of poorly defined open swales along the east side of the ETR tracks which discharge to the west through two culverts that cross the ETR lands. The evidence of the Engineer is that these properties have every right to use the Matte Beneteau Drain for their drainage needs if they so choose. He also confirmed that they have no rights of drainage under law to use the existing drainage facilities on the ETR property. He contends that they are properly included in the Matte Beneteau Drain watershed which outlets into the Ouellette Drain East and, therefore, are assessable for the improvements to this Drain. The Tribunal accepts the evidence of the Engineer on this point.

The Appellants assert that $60,000 of the engineering fees related to this project should be assessed against the lands served by the Ouellette Drain West. The evidence of the Engineer was that he determined that all costs expended on the project up to the point of the final preliminary report was $140,000. He then allocated one-half, or $70,000, against the 2^nd Concession Road where the cost would be levied against the general rate as, in his opinion, it should not be levied against the affected property owners within the watershed. The Tribunal finds that the $70,000 in engineering fees for this project was properly assessed against the Road Authority. The Tribunal concludes that the Engineer has no authority under this Report to levy an assessment against any of the lands in the Ouellette Drain West.

Ms. Brown’s appeal related more directly to an ongoing effort to have the Matte Beneteau Drain repaired or improved. The evidence of the Engineer, supported by the Drainage Superintendent, is that meaningful improvements on the Matte Beneteau Drain cannot be carried out until a sufficient outlet is provided by means of improving the Ouellette Drain East. The Tribunal accepts that evidence.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeals by Mark & Gisele Andrews, Brian & Gail Cecile, Al Roy, Raymond Marentette, Joseph & Liboria Sanna, Leon & Paulette Drouillard, Serge Forte & Donna Mancini, John Dibiase, John Charlton, Josephine Bombardier and Daniel & Judy Croteau under Section 48(1) of the Act are hereby denied.

2. The appeals by Mark & Gisele Andrews, Brian & Gail Cecile, Al Roy, Raymond Marentette and Annette Brown under Section 54(1) of the Act are hereby denied.

3. The Engineer shall amend the August 22, 2014 Report as follows:

• the allowance provided to Dustin Chris & Kelly Soulliere be increased from $1,047 to $2,340.

• The allowance provided to Ronald Frederic & Marlene Anne Tann be increased from $747 to $1,245.

• the estimated total project cost to be increased from $714,097 to $715,921.

• the cost of Item 9 and 10 in the Report, $16,325, shall be removed from the Outlet Liability charge against the 2^nd Concession Road and added to the Special Benefit charge against this road.

• Schedule “A” – Schedule of Assessment of the Report shall be corrected and re-calculated to reflect the change in total project cost and the decisions of the Court of Revision.

• Schedule “B: - Maintenance Schedule of the Report shall be corrected and re-calculated to reflect all changes made to Schedule “A”.

4. All costs associated with preparing the amended Report and filing it with the Municipality shall be at the sole cost of the Engineer.

5. The non-administrative costs of the Municipality incurred with respect of these appeals 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 well as the Engineer’s fees and expenses for attending and participating in the hearing.

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

Dated at Tecumseh, Ontario this 8^th day of February 2016.