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

Darmar-Tamlin Municipal Drain (RE) City of Kawartha Lakes

Darmar-Tamlin Municipal Drain (RE)

Drainage Act

September 12, 2017

DATE OF DECISION:

November 6, 2017

004Darmar-Tamlin17

2017 ONAFRAAT 14

DARMAR-TAMLIN DRAIN City of Kawartha Lakes

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

AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Dale McFeeters in Cannington, Ontario under section 64 of the Drainage Act with respect to the Darmar-Tamlin Municipal Drain, City of Kawartha Lakes.

Before: John O’Kane, Vice-Chair, Edward Dries, Vice-Chair and Lee Holling, Member

Appearances: Dale McFeeters, Appellant John Kuntze, P. Eng., Assisting the Appellant Robyn Carson, Counsel for the Respondent City of Kawartha Lakes Michael Tulloch, Engineer who prepared the Report

DECISION OF THE TRIBUNAL

On March 30, 2017, Dale McFeeters (the “Appellant”) filed an appeal under Section 64 of the Drainage Act (“Act”) with respect to the Darmar-Tamlin Municipal Drain (“Drain”). The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the City of Kawaratha Lakes (“Municipality”) on September 12, 2017.

Joel Watts, Clerk of the City of Kawartha Lakes, performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed and/or compensated in the Report parties to the hearing. The Municipality filed Affidavits of Service proving that all parties had been served with the Notice of Hearing and Amended Notice of Hearing. At the hearing, the Tribunal heard from Mr. David Whittred of 1061 Opmar Road, Milford as an interested party. Mr. Whittred had not appealed to the Tribunal and in all the circumstances, the Tribunal does not make any findings or orders arising from Mr. Whittred’s presentation.

Overview

In an Interim Decision issued on July 28, 2017, the Tribunal ordered the correction of certain omissions from the report dated May 21, 2014 for the Darmar-Tamlin Municipal Drain prepared by Tulloch Engineering Inc. (“Report”). That Interim Order was made under Section 51 of the Act. In that Interim Order the Tribunal adjourned the substantive appeal hearing to September 12, 2017.

On September 12, 2017 the Tribunal heard the appeal evidence and directed the parties to file written arguments. Those written arguments have been received and considered.

On the Generic Notice of Appeal to Tribunal dated March 30, 2017, the Appellant selected the checkbox denoting that the appeal was under Section 64 of the Act and related to the Appellant’s dissatisfaction with the quality of construction of the drainage works. Appended to that generic appeal notice was the Appellant’s grounds for the appeal that was also titled “SECTION 64 APPEAL”. The Appellant cited eight grounds of appeal. However, certain of those grounds of appeal were not related to the quality of construction of the drainage works, but rather raised issues related to the design of the drainage works or the assessments related to the drainage works.

Appeal rights related to design issues arise under Section 48 of the Act and must be commenced within forty days of the municipality passing a by-law adopting the Report. In this case, the municipal by-law was passed on November 10, 2015. Accordingly, the forty days within which to appeal design issues had expired when the Appellant delivered his March 30, 2017 Notice of Appeal.

Appeal rights related to assessment issues arise under Section 54 of the Act and must be commenced within twenty-one days after the decision of the Court of Revision. In this case the Court of Revision made its decision in 2014. Accordingly, the twenty-one day appeal period within which to appeal assessment issues had expired when the Appellant delivered his March 30, 2017 Notice of Appeal.

In the July 28, 2017 Interim Decision, pursuant to Section 100 of the Act, the Tribunal extended the time under the Act for the Appellant to raise the design and assessment issues identified in his March 30, 2017 appeal notice. The Tribunal did not extend the appeal time limits of Sections 48 and 54 of the Act to allow the Appellant to raise new design and assessment issues that were not already articulated in the grounds of appeal set out in his March 30, 2017 quality of construction appeal notice.

The Tribunal granted the Appellant those very limited design and assessment appeal rights due to the exceptional circumstances arising from the deficiencies in the Report. The Report deficiencies were defects of form. The following statutorily mandated elements were missing from the Report:

plans, profiles and specifications of the drainage works, suitable for tendering and construction, i.e.) bearing an engineer’s seal
a description of the area requiring drainage, i.e.) a watershed map
an estimate of the total cost
the distribution of future maintenance costs

In addition, at the time the Appellant made his quality of construction appeal under Section 64 of the Act, the drainage works had been tendered and the construction was underway.

In these exceptional circumstances, it is inappropriate for the Tribunal to extend the time for the Appellant to launch a fresh design and assessment appeal.

Background

In the spring of 2011, the Appellant purchased the farm at 1187 Opmar Road in Mariposa Township. The Appellant developed a plan to improve the farm with tile drainage. That plan to improve his farm drainage ultimately lead to the Appellant, together with landowner Scott Tamlin filing a petition for drainage under the Act on January 25, 2012. Subsequently on September 12, 2012, landowners Paul Brown and Jeff Whyte Farms Ltd. also filed petitions for drainage.

The Report was originally published in May 2014 and signed on May 21, 2014 by Michael Gerrits (the “Former Engineer”), a professional engineer then employed by Tulloch Engineering Inc. A revised report (the “Revised Report”) was published in August 2017 and signed on September 1, 2017 by Michael Tulloch (the “Engineer”), a professional engineer and principal of Tulloch Engineering Inc.. The Revised Report was issued at the direction of the Tribunal in its July 28, 2017 Interim Decision and it incorporated the omissions from the original report. At the time the Revised Report was published in August 2017, Michael Gerrits was no longer employed by Tulloch Engineering Inc.

The drainage works proposed in the Revised Report were not materially different than the drainage works proposed in the Report. The proposed drainage works are in Lots 22 and 23 of Concession 12, Geographic Township of Mariposa and Lots 1 and 2 of Concession 1, geographic Township of Fenelon. The proposed works consisted of a main drain and five branch drains configured as follows:

Darmar-Tamlin Main Drain: Draining an area of approximately 243.2 hectares (ha) and consisting of 765 metres (m) of open channel and 725m of closed drain.
Darmar Branch Drain D1: Draining an area of approximately 10.5 ha and consisting of 90 m of open channel and 90 m of ditch clean out.
Darmar Branch Drain D2: Draining an area of approximately 1.7 ha and consisting of 92 m of ditch clean out.
Darmar Branch Drain D3: Draining an area of approximately 57.7 ha and consisting of 245 m of open channel and 106 m of closed drain.
Brown Branch Drain B1: Draining an area of approximately 11.3 ha and consisting of 331 m of 200 millimeter (mm) corrugated tubing.
Whyte Branch Drain W1: Draining an area of approximately 74.6 ha and consisting of 215 m of closed drain.

There were no appeals to the Tribunal about the design of the drainage works in accordance with Section 48 of the Act.

In 2015, the same Appellant appealed his assessment of the drainage works in accordance with Section 54 of the Act to the Tribunal. That appeal focused solely on the cost to the drainage works associated with an environmental report. That appeal issue was addressed in the Tribunal’s 2015 decision.

Construction on the open ditch components of the drainage works were substantially completed in 2016. Construction of the closed portions of the drainage works had just begun and were not completed at the time of the hearing on September 12, 2017.

Following release of the Tribunal’s July 28, 2017 Interim Decision and before the resumption of the appeal hearing on September 12, 2017, the Appellant and his representative John Kuntze met with the Engineer, representatives of the Municipality and the Former Engineer to review the Appellants issues as detailed in an appeal summary dated August 24, 2017 that was created by John Kuntze and the Appellant and filed as a hearing exhibit. In addition, minutes of that August 25, 2017 meeting were filed as a hearing exhibit.

Issue 1 – Darmar Branch Drain (D2):

Branch D2, as originally designed, started at a point approximately 3.0 metres away from the Appellant’s property line. Branch D2 was already constructed when the Appellant filed his March 30, 2017 Notice of Appeal. That Notice described the issue as “Darmar branch drain (D2) was not built to the property line”.

The Appellant acknowledged that Branch D2 was constructed in accordance with the Report design.

The Appellant’s concern over the starting point of Branch D2 is that water flowing from his property to the south had no way to reach the start of Branch D2. The Engineer acknowledged that a practical and inexpensive resolution would be to make a field adjustment to extend the open ditch an additional three metres to reach the Appellant’s property line so that water from the Appellant’s property would have an outlet into the open Branch D2 ditch. In the Revised Report, design drawing A2 now reflects the following note inserted by the Engineer: “August 31, 2017 Note: Extend Branch D2 approximately 3.0 m to property line and rip rap”.

That revision of Branch D2 would seemingly address the Appellant’s concerns. However, at the hearing the Appellant testified that such a revision would no longer satisfy his concern because he had undertaken private drainage work on his property so that his private tile drains were directing his sub-surface drainage to the south and west of his property and that no water from his property would enter Branch D2. The Appellant carried out that private tile drainage work at a cost of approximately $4,800.00.

The Revised Report assessment schedule for Branch D2 reflects an outlet assessment to the Appellant’s lands of $10,650.46, before application of any applicable grant. The Appellant’s concern at the hearing was that the assessment for Branch D2 against his lands be removed.

At the September 12, 2017 hearing, the Engineer was qualified as an expert witness to give expert opinion evidence in drainage engineering. His was the only expert testimony received at the hearing.

The Engineer’s evidence was that extending the starting point of Branch D2 to the Appellant’s property line was prudent so that it provides a connection potential not only for the current landowner (the Appellant), but for any future landowner and that is why he revised the design drawings to reflect that change.

The Engineer’s evidence was that surface water flows from the Appellant’s property would continue to flow toward Branch D2 and that water would be collected by Branch D2 and provided with an outlet.

The Engineer’s evidence was that the assessment to the Appellant on Branch D2 was still appropriate in the circumstances. He testified that while the Appellant made his own decision to construct his private tile drainage, that decision was without consulting the Engineer and the Appellant’s connection of those private tile drains elsewhere on the Darmar-Tamlin Municipal Drain without notice to the Engineer/City and without approval during construction could have an adverse impact of the function of the drain.

Findings on Issue 1:

This issue is not a “quality of construction issue” under Section 64 of the Act but rather is a design issue under Section 48 of the Act. The Tribunal’s July 12, 2017 Interim Order extended the time to appeal for the Appellant to appeal this issue, as raised in the March 30, 2017 Notice of Appeal.

The Tribunal accepts the expert opinion of the Engineer that in the circumstances in it is prudent to alter the design of Branch D2 to extend the commencement point approximately 3.0 metres to the Appellant’s property line.

The Tribunal finds that the surface water from the Appellant’s property does flow in the direction of Branch D2. Extending the start of Branch D2 in this way will afford those surface water flows from the Appellant’s property a legal outlet into Branch D2.

In addition, the Tribunal finds that it is good engineering practice to consider that in future, either the current landowner (the Appellant) or any future landowner may wish to connect private tile drains into Branch D2 and that locating the start of Branch D2 at the property line will facilitate those potential future connections.

In terms of the Appellant’s request to be relieved of the $10,650.46 outlet assessment on Branch D2, the Tribunals finds that there is no jurisdictional or evidentiary basis to grant the Appellant that relief.

Firstly, the Appellant’s March 30, 2017 Notice of Appeal in respect of Issue 1 raised only a design issue. There was no issue raised in respect of the assessment associated with Issue 1, therefore that issue is not before the Tribunal. The Tribunal’s July 17, 2017 Interim Order extended the time to appeal to the issues as raised in that March 30, 2017 Notice of Appeal. The Tribunal’s Interim Order did not create a wholesale right for the Appellant to raise new or different appeal issues under either section 48 of section 54 of the Act. Accordingly, the Tribunal has no jurisdiction to address this assessment issue.

Secondly, had the Tribunal given the Appellant the opportunity to appeal the assessment of Branch D2, there is no evidentiary basis to change the assessment for Branch D2. The unequivocal expert evidence of the Engineer is that surface water flows from the Appellant’s property will enter Branch D2 at the property line and therefore afford the Appellant’s property a legal outlet. Therefore, an outlet assessment against the Appellant’s property is supported. There was no contradictory expert evidence that the Appellant’s lands should have an outlet assessment. There was no contradictory expert evidence that the outlet assessment of the Appellant’s lands should be any different than the $10,650.46 set out in the Branch D2 assessment schedule of the Revised Report.

Therefore, in respect of Issue 1, the Tribunal’s Order directs that the Revised Report be amended as proposed by the Engineer to reflect that the start of Branch D2 will be extended approximately 3.0 metres to the Appellant’s property line, but otherwise the assessment for Branch D2 will remain unchanged from the assessment schedule in the Revise Report.

Issue 2 – Darmar Branch D3 – Open Portion:

The issue as raised in the Appellant’s March 30, 2017 Notice of Appeal was that the open portion of D3 was constructed “away from” the Vincent’s property line and that there would be extra costs to the drain associated with that construction.

During his testimony on September 12, 2017, the Appellant told the Tribunal that this was “no longer a major issue” and that he accepted the reasons explaining why the construction had deviated from the original design.

The Appellant testified that last winter he saw a dozer working on the Vincent lands and he became concerned the cost of that work would be added to the drain project. He testified that in a recent meeting with the Engineer, he had been assured that those costs would not be any part of the cost to the drain.

The evidence from the August 25, 2017 meeting detailed that during construction, the property owner Mr. Vincent asked the Engineer to shift the route of D3 east from his property line to preserve trees planted along the property line and that since the requested change would have no consequential impact on any other property owner, the Engineer agreed to Mr. Vincent’s request.

The Engineer explained that the overall effect of the change was a shift in the alignment of about three metres that was all on the Vincent’s property and would not impact any other property owner. The Engineer testified that under the drainage construction contract, he, as Engineer, retained the right to authorize field changes where appropriate and he had done so in this instance.

The Engineer also confirmed that any costs associated with the change to the route of the open portion of D3 will be negligible and will be borne by the Vincent property and not by the Appellant.

Findings on Issue 2:

This is a quality of construction issue.

The evidence of the parties was consistent and confirmed that by the time of the September 12, 2017 hearing, this issue had been resolved.

The Tribunal finds that altering the route of the open portion of D3 on the Vincent property east of the designed route is appropriate in all the circumstances.

The Tribunal also accepts the Engineer’s assurance that the costs associated with the alteration of the open portion of D3 will be borne by the Vincent property.

The Tribunal’s Order directs that the as-built drawings will reflect the revised route of the open portion of Branch D3 and the associated costs for that revised route will not be borne by the drainage project.

Issue 3 Branch D3 – Closed Portion:

The portion of Branch D3 proposed to cross the Appellant’s property was designed as a closed tile drain commencing from a ditch inlet (DI3) at station 5+000 located on the property line between the Appellant’s property and an adjacent transmission corridor owned by Ontario Hydro.

By the time of the September 12, 2017 hearing, confusion about the location of the property lines had been clarified. A post and wire fence that defined part of the Appellant’s farm fields was inside the corridor owned by Ontario Hydro, rather than on the Appellant’s property line. The Appellant testified that his property line is about 15 metres east of the post and wire fence line. The designed location for DI3 will leave a perception that the ditch inlet is in the middle of his farm field.

Part of the Appellant’s concern was to ensure that surface flows from the hydro corridor enter the drain at DI3 and therefore his preferred location for DI3 was at the post and wire fence line. If DI3 was to remain at station 5+000 as designed that would require ditching to direct flows from the hydro corridor into DI3.

At the hearing the Appellant testified that his concerns related to DI3 are its location and the proposed use of an orifice plate that would restrict flows into DI3.

The Engineer testified that he is unable to arbitrarily move the location of DI3 into the hydro corridor without consultation with Ontario Hydro. He explained that based on earlier discussions with Ontario Hydro concerning the location of a manhole, they had raised concerns about drain structures being located within the hydro corridor because of the potential interference with their moving heavy equipment to service the transmission towers. Consequently, he located DI3 on the legal property limit and not within the Ontario Hydro property.

The Engineer agreed that he would ask Ontario Hydro if they would accept moving the location of DI3 from the design location to a location at the post and wire fence line. If Ontario Hydro agrees with that change, the Engineer committed to making a field change during construction, but that he was not prepared to change the Revised Report.

The Engineer testified that he reviewed the design details related to the orifice plate and the closed tile size at that location. His review confirmed that since the orifice plate and the drain size were close to the same size, there was little purpose served by the orifice plate and it could be eliminated as a field change.

Findings on Issue 3:

This is a design issue that was included in the Appellant’s March 30, 2017 Notice of Appeal.

Given the Engineer’s evidence about the relative size of the orifice plate and the closed tile, the Tribunal finds that the removal of the orifice plate on DI3 is an appropriate field change and the Tribunal’s Order is to remove that orifice plate.

However, there was insufficient evidence presented by the Appellant to satisfy the Tribunal that a design change is warranted with respect to the location of DI3. Such structures are typically placed at property lines and the evidence was clear that DI3 was designed to be located at the property line between the hydro corridor and the Appellant’s property. The historic anomaly arising from the location of the post and wire fence 15 metres inside the Ontario Hydro property is not a sufficient engineering issue to warrant a design change.

Apart from that, there is a permitting process associated with erecting structures within the transmission tower corridor that curtails the Engineer’s ability to move the design location of DI3. It would be unfair at this stage of the process for the Tribunal to impose the location of DI3 on the hydro corridor without Ontario Hydro having specific notice of such a design change. However, the Engineer has agreed to ask Ontario Hydro for permission to move DI3 to the post and wire fence line, which, in these circumstances the Tribunal finds to be appropriate. If Ontario Hydro consents to the Engineer’s request, that consent will obviate any procedural fairness concerns and that modification can be made as a field change.

Issue 4 – Darmar-Tamlin Main Drain:

On March 30, 2017, a concern was raised that the constructed drain outlet had no freeboard and was installed at an incorrect location.

The Appellant testified that the drain outlet does not have any freeboard and that without freeboard there will be increased maintenance costs in the future.

During testimony, the Engineer acknowledged the freeboard issue and confirmed that this issue had been identified during construction as a construction deficiency that would be rectified by the contractor as a warranty issue.

Findings on Issue 4:

This is a quality of construction issue.

However, the evidence at the hearing was clear that since the drainage works are still part way through the construction of the closed drain portions, this issue will be addressed as a construction warranty issue at no added cost to the drainage project.

Issue 5 – Manhole 3 Location:

Manhole 3 (MH3) is located at the property line where the Ontario Hydro transmission corridor intersects with the Appellant’s property line and the property line of Jeff Whyte Farms Ltd. Like the circumstances with Issue 3, the same historic confusion about property lines existed in part due to the location of the post and wire fence inside the Ontario Hydro property line. The Appellant wanted MH3 moved to the post and wire fence.

The Appellant testified that this was one of the spots along his property line where he wanted to control flows coming off the hydro corridor. He described an existing tile outlet and the elevated eight-foot berm on the hydro corridor as contributing to water flows onto his property. He also described how MH3 was located on high ground so there was no advantage to creating a ditch inlet there.

The Engineer testified that like the location of DI3 in Issue 3, he is unable to arbitrarily move the location of MH3 onto the Ontario Hydro property for the same reasons.

The Engineer did acknowledge that the current location of MH3 does create what he described as a “pinch point” that could be alleviated by adjusting the location of MH3 approximately four to five metres to the south-east along the property line of the hydro corridor. He described that change as a field adjustment that would also necessitate a sweeping arc and installing a ditch inlet catch basin, all which he was prepared to authorize as field adjustments.

Findings on Issue 5:

This is a design issue that was included in the Appellant’s March 30, 2017 Notice of Appeal.

Given the Engineer’s evidence about the “pinch point” near MH3, the Tribunal finds that the adjustment in the location of MH3 south-east along the Appellant’s property line and the installation of a ditch inlet catch basin will be an appropriate solution in the circumstances.

However, there was insufficient evidence presented by the Appellant to satisfy the Tribunal that a design change is warranted with respect to the location of MH3 to move it into the hydro corridor. As noted in respect of Issue 3, such structures are typically placed at property lines and the evidence was clear that MH3 was designed to be located at the property line between the hydro corridor and the Appellant’s property. The historic anomaly arising from the location of the post and wire fence inside the Ontario Hydro property is not a sufficient engineering issue to warrant a design change.

Issue 6 – Adding Ditch Inlet Tops to Manhole Structures 2, 3 & 4:

Manhole 2 and 4 were designed to have flat tops buried below normal grade. Manhole 3 was designed to have a ditch inlet top but it was changed to a flat buried top at construction. The March 30, 2017 Notice of Appeal does not refer to ditch inlet tops on manhole structures 2 and 4.

In evidence, the Appellant explained that he wanted the ditch inlet tops so that surface water can discharge directly into the closed portion.

The evidence from the August 25, 2017 meeting summary reflects that manhole structures 2 and 4 were designed as buried manholes, in part to facilitate the Appellant’s cultivating over the closed portion of the drain that is located about 3 m east of the Appellant’s property line.

The Engineer testified that manhole 2 (MH2) is located on higher ground and a ditch inlet top would provide no benefit. He described the location of MH2 in a farm fence gate. He explained the design of this reach of the drain was to provide outlet to the localized low areas and not to accept surface sheet flow. The Engineer explained how he had advised the Appellant that he would not object to the Appellant installing his own private herringbone tile system to intercept and to alleviate localized flows. He explained that the property owner is best suited to address such issues with their own private systematic tile drains.

In respect of manhole 4 (MH4) the Engineer testified he was fundamentally opposed to changing MH4. He described that MH4 was located within the area regulated by the Kawartha Region Conservation Authority (“KRCA”) and subject to the permit issued by the KRCA. He explained how, under the terms of an agreement with the KRCA, the existing ditch through the regulated area on the Appellant’s property was to remain undisturbed and how surface flows in the area were to be kept out of the closed portion of the drain so that those surface flows would recharge the regulated area. The Engineer testified that the existing ditch in the regulated area is mature trees and bush and it has been the KRCA’s position that it remains in that condition. The Engineer testified that the KRCA permit (Exhibit 12) incorporated the existing plans and profiles and that he could not alter them in respect of the KRCA regulated area, without KRCA’s approval. The Engineer testified that he was satisfied that any of the field alterations he had agreed to do not alter the KRCA approvals because he has not allowed any changes in the regulated area.

Findings on Issue 6:

The request to have ditch inlet tops installed on MH2 and MH4 is a design issue that was not included in the Appellant’s March 30, 217 Notice of Appeal. These design issues were not raised in a timely fashion and the Tribunal’s July 28, 2017 Interim Order did not extend the time to appeal all design issues, but rather only preserved those design issues raise in the Appellant’s March 30, 2017 Notice of Appeal.

In any event, even if the appeal issue had been raised in a timely manner, the Appellant did not lead any engineering evidence in respect of the design of the tops of these two structures.

In respect of MH2, the only engineering evidence at the hearing was the testimony of the Engineer. In these circumstances, the Tribunal is satisfied by the Engineer’s evidence that the designed flat, buried, top at MH2 is appropriate. In addition to that evidence, there was evidence that the buried manhole top of the structure had been agreed to by the Appellant. It is disingenuous of the Appellant to come forward now and seek to change a design feature that was selected in part to accommodate his farm practices.

In respect of MH4, the only engineering evidence at the hearing was the testimony of the Engineer. In these circumstances, the Tribunal is satisfied by the Engineer’s evidence that the designed flat, buried, top at MH4 is appropriate. In addition, the Tribunal accepts the Engineer’s evidence that the permitting process with the KRCA required that no surface water flows enter the closed portion of the drain in the regulated area so that those surface flows would recharge that natural area. In these circumstances, it would be entirely inappropriate to alter a design element that was selected as part of another regulatory process.

Issue 7 – Location of Manhole 2:

The Appellant’s March 30, 2017 Notice of Appeal noted that “Maintenance hole 2’s location does not reflect the physical lot lines.”

MH2 is located near the intersection of the property lines of the Appellant and adjacent property owner Tamlin.

The Appellant testified that the original drawings did not accurately reflect the property lines. He testified that the revised drawings now show MH2 located on the Tamlin property.

The Engineer testified that with the revised drawings in the Revised Report, MH2 is now shown at the correct location on MH2 inset of drawing A1.

Findings on Issue 7:

While the closed portion of the drain has not yet been completed, this issue is a quality of construction issue.

Based on the Appellant’s evidence, supported by the Engineer’s evidence, it is appropriate that the drawings be amended to reflect the property lot lines accurately on drawing A1 and to correctly identify the location of MH2 on the Tamlin property.

Issue 8 – Whyte Branch Drain:

In the Appellant’s March 30, 2017 Notice of Appeal, he asserts that his property had been assessed for portions of the closed drain on the Whyte branch. In that Notice of Appeal, the Appellant acknowledged that the time for appealing assessments had passed. In the July 12, 2017 Interim Order, the Tribunal extended the time for the Appellant to raise that assessment issue.

The Appellant testified that the assessment revisions the Engineer had made in the Revised Report satisfied him.

The Engineer testified that the Former Engineer had made a special assessment of $7,500.00 due to crossing the hydro corridor. The Engineer testified that he found the special benefit allocated by the Former Engineer to be insufficient and so he revised that special benefit to Ontario Hydro significantly.

The Engineer testified that he did not agree with the benefit to outlet ratio adopted by the Former Engineer and as a result, he completed a revision to that ratio that resulted in changes to the Appellant’s property as well as others.

The Engineer testified that he also found the benefit assessment to the Appellant’s property to be overstated so he corrected that as well as the assessment to four other properties.

The Engineer testified that since he was now required to sign the Revised Report, he felt obliged to review the assessment schedules to ensure that the assessments were fair and reasonable.

The Engineer testified that in developing the revised assessment he used the Todgham method for determining assessments. He testified that the Todgham method is a methodology accepted by the drainage profession.

Findings on Issue 8:

This is an assessment appeal issue that was included in the Appellant’s March 30, 2017 Notice of Appeal.

The Appellant did not produce any engineering evidence about the appropriate assessments. The Appellant testified that he was satisfied that his benefit assessment was reduced from about $20,000 to about $5,000.

The only engineering evidence on the assessment issue was the Engineer’s evidence.

The Tribunal accepts the Engineer’s expert evidence about the changes required to the assessment schedules.

Costs Issue:

In the Appellant’s March 30, 3017 Notice of Appeal he sought disclosure of the costs associated with the Darmar-Tamlin Drain to date as well as a cost award in his favour related to the previous Tribunal hearing and the present Tribunal hearing.

In its written submissions, the municipality is not seeking any cost award.

The previous Tribunal decision was made on September 11, 2015 and related to the Appellant’s section 54 appeal over the costs of an environmental study. Order number 5 of that previous Tribunal decision reads as follows:

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

Accordingly, the issue of costs of that previous Tribunal hearing has already been considered and determined by that Tribunal Order.

The Tribunal panel hearing the present appeal has no jurisdiction to make a cost award associated with that previous Tribunal decision.

In the July 28, 2017 Interim Order, the Engineer was directed to provide disclosure of the costs associated with the Darmar-Tamlin Drain to date. At the September 12, 2017 hearing the Engineer’s letter dated September 1, 2017 that detailed all the costs was made an exhibit (Exhibit 13). It should be noted that the Engineer has voluntarily absorbed the cost of all fees and disbursements related to the preparation for, and attendance at, the Tribunal hearing of July 26, 2017 as well as the reconvened hearing on September 12, 2017.

The Act gives the Tribunal broad discretion in respect of costs of proceedings. Subsection 98(10) provides as follows:

The costs of any proceeding before the Tribunal shall be paid by or apportioned between the parties in such manner as the Tribunal considers proper….

In addition to that discretionary authority, the Statutory Powers and Procedure Act (“SPPA”) gives the Tribunal discretion to award cost in proceedings, where the Tribunal has created rules related to costs. Section 17.1 provides as follows:

Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

The exception to that discretionary cost award authority is set out in subsection (2) as follows:

A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith….

Those two statutory provisions (the Act and the SPPA) provide separate jurisdictional authority for the Tribunal to make cost awards. The Tribunal’s Rules (Rule 28 and Rule 31.08) further animate those cost awarding powers.

Not every proceeding before the Tribunal warrants a cost award.

There was no evidence that the City or the Engineer acted in bad faith, unreasonably or that their conduct was either frivolous or vexatious.

In the circumstances of this case, the Tribunal declines to make a cost award in favour of the Appellant.

Order of the Tribunal

The Tribunal thereby makes the following orders:

The Revised Report will be amended to reflect that the starting point for Branch D2 will be extended approximately 30 m to the Appellant’s property line.
The assessments in the Revised Report in respect of Branch D2 are confirmed.
The Engineer’s decision to make a field change to shift the route of the open portion of Branch D3 approximately three metres east of the Vincent property line is hereby approved.
The Engineer is directed to amend the as built drawings to reflect the shift in the route of the open portion of Branch D3 by approximately three metres east of the Vincent property line.
The Tribunal directs that any costs associated with shifting the route of the open portion of Branch D3 will not be borne by the drainage project.
The designed location for the ditch inlet (DI3) on the closed portion of Branch D3 is hereby confirmed.
The Engineer’s decision to make a field change to remove the orifice plate from DI3 is hereby approved and the Engineer is directed to make any consequential amendment of the as built drawings to reflect that field change.
The Engineer is directed to pursue the issue of the location of the Main Drain outlet and the lack of appropriate freeboard with the drainage contractor as a warranty matter.
The Engineer’s decision to make a field change in respect of the location of MH3 is hereby approved as well as the associated sweeping arc to the drain route and installation of a ditch inlet catch basin and the Engineer is directed to make any consequential amendment of the as built drawings to reflect that field change.
The Engineer is directed to amend the Revised Report drawing A1 to accurately reflect the property lines and to correctly identify the location of MH2 on the Tamlin property.
The Revised Report is otherwise approved.
The revised assessment schedules in the Revised Report are confirmed.
Pursuant to section 56 of the Act, the Clerk of the City of Kawartha Lakes is hereby directed to give effect to the assessments on the revised assessment schedules of the Revise Report and to provide notice thereof to the owners affected.
The Appellant’s appeal is otherwise dismissed.
Based on the Engineer volunteering to absorb all costs associated with the revisions to the Report and the preparation for and attendance at the hearing of July 26, 2017 and the hearing of September 12, 2017, the Tribunal directs that there will be no such costs charged to the City of Kawartha Lakes or to the Darmar-Tamlin Municipal Drain.
The non-administrative costs of the City incurred with respect to this appeal shall form part of the cost of the drainage works.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Collingwood, Ontario this 6^th day of November, 2017.

Dale McFeeters v. City of Kawartha Lakes, 2017 ONAFRAAT 14

Case Summary