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

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

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

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Van Beets Municipal Drain (RE)

Municipality of Central Huron

Van Beets Municipal Drain (RE) Municipality of Central Huron 2016ONAFRAAT08

STATUTE:

Drainage Act

HEARING:

March 31, 2016

DATE OF DECISION:

April 8, 2016

019VanBeets15

NEUTRAL CITATION:

2016ONAFRAAT08

VAN BEETS MUNICIPAL DRAIN 2012 Municipality of Central Huron

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 Gerard Boon of Brucefield, Ontario under section 64 of the Drainage Act from the quality of construction of the drainage works pertaining to the Van Beets Municipal Drain 2012.

Before:

John O’Kane, Vice-Chair; Ed Dries, Member; Tim Mousseau, Member

Appearances:

Gerard Boon, Appellant

Valerie M’Garry, Counsel for the Municipality of Central Huron

Jeff Dickson, Engineer who prepared the Report

Geoff Guse, R.J. Burnside & Associates Limited

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Municipality of Central Huron (“Municipality”) on March 31, 2016. The Engineer’s Report dated February 24, 2012 for the Van Beets Municipal Drain 2012 (“Report”) was prepared by J. R. (Jeff) Dickson, P. Eng., (“Engineer”). The appeal to the Tribunal was filed by Gerard Boon of Brucefield, Ontario from the quality of construction of the drainage works pertaining to the Van Beets Municipal Drain.

Brenda MacIssac Clerk of the Municipality of Central Huron, performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service, dated February 12, 2016, as proof that all parties had been served with the notice of hearing.

Overview

Gerard Boon’s appeal to the Tribunal raised constitutional issues, criminal law issues, environmental law issues, common law riparian rights issues, drain design issues, assessment issues and concerns about the quality of construction of the Van Beets Municipal Drain.

As repeatedly pointed out to Mr. Boon during the hearing, the Tribunal’s jurisdiction in this appeal under section 64 of the Drainage Act, relates solely to the quality of construction of the drainage works completed under the Report.

64. 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 drain design and drain assessment issues were the subject of a prior appeal to this Tribunal by Mr. Boon under sections 48 and 54 of the Drainage Act. On November 30, 2012, this Tribunal (differently composed) dismissed or denied Mr. Boon’s appeals concerning the drain design and the drain assessments. That November 30, 2012 Tribunal decision was not reviewed or judicially reviewed and therefore any issues related to drain design or drain assessments are closed issues.

The environmental issues Mr. Boon identified such as water quality, soil quality or pollution of his water and lands are outside the Tribunal’s jurisdiction. Mr. Boon confirmed that he is aware of the agencies within Ontario that have responsibility and jurisdiction over those issues.

The criminal law and common law issues are the purview of the Superior Court of Justice and not the Tribunal.

Therefore, of all the issues raised by Mr. Boon, the only ones that the Tribunal can legally deal with are whether the Van Beets Drain 2012 works were constructed in compliance with the Engineer’s plans and specifications as detailed in the Report. Accordingly, we specifically make no findings or determinations in respect of those many other issues raised by Mr. Boon.

Mr. Boon did raise a quality of construction issue with six components of the Van Beets Drain. However as will be discussed in greater detail, Mr. Boon has failed to discharge the onus of satisfying the Tribunal, on a balance of probabilities that the construction of the Van Beets Drain was not in accordance with the Engineer’s plans and specifications as set out in the Report.

Accordingly, for the reasons set out below, Mr. Boon’s appeal is denied.

Issues

The issue(s) on appeal can be simply stated as whether the Van Beets Drain, as constructed, complied with the plans and specifications in the Report, adopted by the Corporation of the Municipality of Central Huron in By Law 12-2012 on March 29, 2012.

The onus of proof rests with Mr. Boon as appellant who must satisfy the Tribunal that the drainage works as constructed, do not comply with the plans and specifications.

Discussion and Analysis:

Mr. Boon presented thirty-five points that he asserted were quality of construction issues. Very few of those points related to quality of construction. The balance of the points raised will be grouped and addressed summarily. The Van Beets Municipal Drain 2012, as it related to Mr. Boon’s property, was constructed during the early part of the summer of 2013.

A. Quality of Construction Issues:

The appellant’s evidence consisted of Mr. Boon’s testimony, supported by his Document Book. The appellant did not call any engineering evidence from a drainage engineer. The appellant did not call any evidence from a drainage contractor. On several occasions when referencing the plans and specifications in the Report, Mr. Boon explained that he did not know how to read the plans and specifications and suggested that the Tribunal should figure it out.

The respondent municipality’s evidence came from the Engineer and construction supervisor. The Tribunal qualified the Engineer to give expert opinion evidence in his discipline as a drainage engineer. Most of the Engineer’s evidence was fact based about the construction issues. Both municipal witnesses confirmed that the drainage works were constructed in accordance with the Report plans and specifications, subject to some minor field alterations.

Alignment of the drain in the vicinity of Whys Line

This was item 12 from Mr. Boon’s list of complaints. Mr. Boon testified that the drain was to have been installed south and east of an existing private 10 inch tile and a “low run” area. He testified that the actual construction of the drain was north and west of the 10 inch tile and the “low run”, resulting in destruction of the private 10 inch tile and filling in the “low run” area. As with many of his complaints, Mr. Boon referred the Tribunal to select passages of the Report and to photographs that he had taken of the drainage works on and around his property.

The Engineer testified that since the existing 10 inch tile was being preserved at the owner’s request and since that existing tile was in the vicinity of the “low run”, the preference was to remain south and east of it, wherever possible during construction, but that the drain design always planned crossing Whys Line to the north of the existing 55 inch road culvert. The Engineer explained that during construction the contractor’s excavation exposed the existing 10 inch private tile and the only way that the drain could be aligned to cross Whys Line north of the existing road culvert, was to cross or cut that existing 10 inch private tile. The Report plans and specifications called for that 10 inch tile to be capped. The Engineer testified that the new drain alignment crossed the 10 inch private tile within 7.5 metres of the west limit of Whys Line. The Engineer testified that the only place the new drain alignment was not south and east of the private 10” tile was where it was crossed within 7.5 metres of the west limit of Whys Line.

The Tribunal was satisfied with the Engineer’s explanation regarding the new drain alignment as it related to the existing 10 inch private drain and the “low run”. Rather than the 10 inch private tile being destroyed as Mr. Boon asserted, or capped as the Report originally contemplated, the Engineer testified that it continues in service as they also uncovered a previously unknown private lateral tile on Mr. Boon’s land, west of Whys Line, north of the new tile and that tile was redirected and connected to the end of the existing 10 inch private tile to provide continuing outlet for those parts of Mr. Boon’s lands that are drained by that lateral tile.

Therefore, we find as a fact that the alignment of the new drain near and under Whys Line and in relation to the 10 inch private tile and the “low run”, was installed in accordance with the Report plans and specifications.

Orifice/Plate on the upstream end of the existing road culvert under Whys Line

This was referenced in items 7 & 8 from Mr. Boon’s list. Mr. Boon contended that the upstream end of the existing 55 inch road culvert that crossed under Whys Line and emptied onto his lands was supposed to have a plate or orifice installed.

The Engineer confirmed that during meetings with the stakeholders, the municipality had offered to install such an orifice or plate to create some additional storage on the east side of Whys Line. However, in the actual Section 8.0 - Proposed Work, of the Report, rather than provide for the installation of such an orifice or plate, the Engineer proposed a stone weir at the upstream end of the existing culvert. The Engineer explained that the weir was included in the proposed work to dissipate water flow rather than an orifice or plate due to his concern about the damming effect and hydraulic pressure that such a plate could have on Whys Line.

In weighing the evidence of the Engineer and the text of the works described in Section 8.1.2 in the Report against the evidence of Mr. Boon, the Tribunal is satisfied that the plans and specifications in the Report did not call for an orifice or plate to be installed on the upstream end of the existing 55 inch road culvert. Further, the stone weir described in the report was, in fact, installed as specified.

Depth of Ground Cover over Tile

This was item 18 from Mr. Boon’s list. Mr. Boon testified that at a point 57 feet upstream from the drain outlet, there was only 14 inches of earth covering the drain tile. One of Mr. Boon’s photographs was offered in support of that assertion. According to Mr. Boon, the photograph, taken November 17, 2015, showed where water had been blowing out through a crack in the tile and the resulting hole allowed him to get a yardstick down to the top of the buried tile to measure the soil depth. He also testified that there was another spot near station 0+740 where he was able to get a similar measure and the soil depth over the tile was only 24 inches.

The Engineer testified that there may be a lack of preferential ground cover in that area identified by Mr. Boon. The Engineer directed the Tribunal to the profile drawing in his Report and pointed out that the heavy black line is identified on the drawing as the “existing ground at new tile”. He also pointed out that as the profile is followed toward the drain outlet at station 0+615, the depth of soil to the top or crown of the buried tile becomes less as the tile outlet comes to the surface. He pointed out that it stands to reason that there would be shallow cover as the tile pipe “daylighted” or came to the surface of the ground at its outlet and that he was aware that in that area there would be shallow ground cover.

On this point there was no significant factual disagreement between Mr. Boon and the Engineer that there was an area of shallow ground cover over the buried tile, near the point where it emerged from the ground at its outlet. However, we heard no evidence from Mr. Boon about what that relatively small area of shallow ground cover meant in terms of the quality of construction or in terms of the function of the drain system. The Engineer’s evidence made practical and common sense that as the buried drain pipe neared the surface at its outlet, there would be increasingly shallow ground cover and that was expected as part of the construction of that part of the drain.

In these circumstances, we find as a fact that the depth of ground cover over the tile is in accordance with the Report plans and specifications.

Drain Structures Not as Specified

This issue included item 5 from Mr. Boon’s list. Mr. Boon testified that the earth moving works conducted on the neighboring lands upstream of his property altered slopes, elevations, profiles and filled in capacities of intended storage areas. Mr. Boon testified that there is no way the berms can be as set out in the Report because he saw earth being moved out of the storage areas or into the storage areas behind the berms and so “obviously” those structures were not going to be as required in the Report plans and specifications. Mr. Boon presented a series of photographs taken from his lands or from Whys Line, looking upstream over the upstream neighbours’ lands where earth moving work was under way. Mr. Boon testified that the work changed the slope and filled in storage areas. Mr. Boon had no evidence about the actual capacity of any storage areas, or the elevation or slopes of any berms. He simply asserted that they had not been constructed in accordance with the Report plans and specifications.

The Engineer confirmed that there were a series of earthen berms on the upstream neighbour’s lands constructed to achieve areas for storage of surface water. He also testified that upstream of each berm, there were surface water inlets to carry that stored surface water, into the buried tile drain. The Engineer testified the Report required specific elevations for structures such as buried junction boxes and surface water inlets. The Engineer testified that those structures had been installed at the elevations required in the Report. He testified that the heights and lengths of the berms were independently designed by a consultant and those dimensions are specified in the Report, but the elevations of the berms were not specified in the Report plans and specifications.

Mr. Boon’s assertions regarding the “obvious” changes to slopes, elevations and profiles of the upstream neighbour’s lands are not at all obvious to the Tribunal. Appendix H of the Report contains detailed design specifications for each of the several berms to be constructed as part of the drainage works. For example, the Report described Berm 1A with an actual height of 3.6 feet, an actual length of 312 feet, a side slope ratio of 8:1, a top width of 3.6 feet and a bottom width of 61 feet. The dimension details of the other berms in the Report are similarly described. However, the Report does not contain any particular elevations for those berms.

Mr. Boon failed to produce any reliable evidence of actual measurement of the berm dimensions as constructed. We cannot draw any conclusions about the as constructed berm dimensions or the storage areas from Mr. Boon’s photographs. Mr. Boon’s assertion about what was “obvious” was not reliable evidence.

In these circumstances, we find as a fact that the berm dimensions were constructed in accordance with the Report plans and specifications.

In these circumstances, we find as a fact that the drain control structures constructed in relation to the berms (buried junction boxes and surface water inlets) were constructed in accordance with the Report plans and specifications.

This issue also included item 14 from Mr. Boon’s list. Mr. Boon testified that the Report called for a buried junction box at station 0+810.5 and a junction box at station 0+746 and that neither was installed.

The Engineer testified that Mr. Boon was correct about both the buried junction box and the junction box. The Engineer referred to Section 8.4 of the Report that permits the Engineer to issue Change Orders as required to properly construct the drainage works, if unforeseen circumstances are encountered after the Report is adopted.

The Engineer testified that during construction, the drainage contractor suggested that since the drain alignment was making a turn at station 0+810.5 where the buried junction box was to be installed, it would make the drain pipe alignment and jointing better if, rather than a buried junction box, they installed a custom fitting on a gentle curve that better suited the alignment adjustment. The Engineer testified that the other purpose in the proposed junction box was to provide for future connection of private drainage tiles. He explained that to make a future connection for the upstream cleared agricultural fields that this junction location provided the best spot due to the relative elevations in that area. Based on the contractor’s recommendations, the Engineer approved a Change Order to use a custom curved fitting with two 8 inch lateral, capped, tees rather than the buried junction box.

The Engineer explained that during the design and Report development stage, it is not typical to hire an Ontario Land Surveyor to conduct a legal survey of the property boundaries and that his plans show approximate lot boundaries. He also explained that it is common drainage design practice to plan for a junction box near the vicinity of lot lines, regardless of ownership. Based on those common practices in the drainage design profession, he designed a junction box at station 0+746, which he understood to be the approximate lot line between lots 32 and 33 on Mr. Boon’s property.

He also explained that the junction box at station 0+746 was an essential part of the design because at that point the drain was changing from a 525 mm pipe to a 600 mm pipe and the gradient was changing. He explained that while the design reflected a surface junction box, at the request of Mr. Boon, the junction box was buried. He also confirmed that the location was changed to approximately station 0+751. The location change arose as a result of Mr. Boon’s insistence that the actual lot line was not at station 0+746 but closer to 0+751. Based on Mr. Boon’s advice about the actual location of the lot line between lots 32 and 33, the Engineer approved a Change Order to move the location of the junction box to station 0+751.

In the case of both the buried junction box at station 0+810.5 and the junction box at station 0+746, the Tribunal finds as a fact that, in accordance with Section 8.4 of the Report, the Engineer encountered unforeseen circumstances during construction and, in both cases made reasonable Change Orders from the Report plans and specifications.

Freeboard Achieved in Excavation of Stilling Pond

This was item 20 from Mr. Boon’s list. Mr. Boon presented a diagram from the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) that depicted a drain outlet with a minimum 300 mm freeboard or distance between the drain pipe invert and the normal water level in the receiving stream. He also presented photographs of the drain outlet at station 0+615 that depicted less than 300 mm of freeboard between the invert of the drain pipe and the water level immediately beyond.

The Engineer testified that in his experience, he had designed drains with less than 300 mm freeboard between the outlet invert and the normal water level. He testified that the OMAFRA diagram Mr. Boon relied on was typical when an outlet was entering an existing watercourse or an open drainage ditch; however that was not the case in this instance.

The Engineer testified that his design had the drain outlet into a stilling pond that was excavated upstream of the existing watercourse or drainage ditch. He also explained that rip rap rock was installed below the drain outlet in order to dissipate the energy of the water flow from the drain pipe.

Mr. Boon did not present any evidence to suggest that the freeboard achieved at the drain outlet was not in accordance with the Report plans and specifications.

In these circumstances, we find as a fact that the freeboard achieved at the drain outlet into the stilling pond was in accordance with the Report plans and specifications.

Missing Fence Posts

This issue was not a specific issue on Mr. Boon’s list. He asserted that two pieces of steel seen on the ground in one of the municipality’s photos were his fence posts.

The Engineer and the construction supervisor had no evidence to offer about the ownership of the steel fence posts seen in that photograph.

The evidence on this point was completely equivocal. There was no evidence that there had been fencing in the area of the municipal photograph (around stn. 0+810). The Tribunal is left wondering if the two steel pieces were indeed fence posts and if so, where they came from.

In the face of such equivocal evidence, the Tribunal is unable to come to any determination about the two fence posts that Mr. Boon asserted were missing.

In addition to that, the Tribunal also has a concern over the real magnitude or importance of two allegedly missing steel fence posts, in the context of an appeal heard almost three years after construction.

B. Other Issues:

It became apparent during the hearing that Mr. Boon was and continues to be an opponent of the drainage works in the Van Beets Municipal Drain 2012. On more than one occasion in both oral and written portions of his case, he made the points that he does not need drainage and that he does not want the drainage works on any part of his property.

Mr. Boon’s opposition to the drainage works certainly appeared to colour his appeal under section 64 of the Drainage Act. That resulted in him raising a large number of issues that were irrelevant to a quality of construction appeal under section 64 of the Drainage Act. While we refrain from making specific and separate rulings on each and every issue Mr. Boon raised, the following summarizes most of the irrelavancies.

Res Judicata Issues:

In items 1, 2, 3, 8, 27, and 34 Mr. Boon raised issues regarding the validity of the original petition for drainage, the design and route aspects of the drain and compensation and assessments. As mentioned previously, Mr. Boon pursued a prior appeal about the same drainage works before this Tribunal raising those same issues. That appeal was denied and therefore Mr. Boon does not have the right to re-litigate those issues. Additionally, they are not quality of construction issue under section 64 of the Drainage Act.

Criminal Law Issues:

In items 3, 6, 9, 11, 20, 21, 22, 23, 26, 28, 29, 30, and 35 Mr. Boon raised issues about trespass and related contraventions of various provisions of the Criminal Code of Canada. As explained to Mr. Boon during the hearing, the Tribunal has no jurisdiction to hear and determine any such complaints.

Environmental Law Issues:

In items 6, 9, 10, 21, 22, 23, 24, 25, 26, 28, 29, and 31, Mr. Boon raised issues about contamination, pollution and degradation of his farming operation. As explained to Mr. Boon during the hearing, the Tribunal has no jurisdiction to hear and determine any such complaints.

Common Law Issues:

In items 4, 23, and 30, Mr. Boon raised issues about his riparian rights. At the previous Tribunal hearing in 2012, the Tribunal ruled that it did not have jurisdiction to rule on alleged riparian rights. As explained to Mr. Boon again during this hearing, the Tribunal has no jurisdiction to hear and determine riparian rights issues. Those are matters reserved to the law courts.

Conclusion:

As a result of the factual findings and determinations about jurisdiction, Mr. Boon’s appeal is denied.

At the conclusion of arguments, counsel for the municipality asked that the appeal be denied, with costs.

In these circumstances, the Tribunal will consider brief written submissions about the costs of the appeal.

The municipality will serve and file written costs submissions not exceeding 5 pages (excluding any case authorities), within 10 days of the release of these reasons for decision. Mr. Boon will serve and file written costs submissions not exceeding 5 pages (excluding any case authorities), within 10 days of the receipt of the municipality’s costs submissions.

Order of the Tribunal

For the reasons stated herein, the Tribunal orders that:

1. The appeal of Gerard Boon under section 64 of the Drainage Act regarding the quality of construction of the Van Beets Municipal Drain 2012 is hereby dismissed.

2. The municipality shall serve on Mr. Boon and file with the Tribunal, written costs submissions not exceeding 5 pages (excluding any case authorities), no later than April 18, 2016.

3. Mr. Boon shall serve on counsel for the municipality and file with the Tribunal, written costs submissions not exceeding 5 pages (excluding any case authorities), no later than April 28, 2016.

Dated at Brampton, Ontario this 8^th^ Day of April, 2016