Dale McFeeters v. City of Kawartha Lakes, 2017 ONAFRAAT 9

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Darmar-Tamlin Drain (RE)

Interim Decision #1

City of Kawartha Lakes

Darmar-Tamlin Drain (RE)

Interim Decision #1

STATUTE:

Drainage Act

HEARING:

July 26, 2017

DATE OF DECISION:

July 28, 2017

004Darmar-Tamlin17

NEUTRAL CITATION:

2017ONAFRAAT09

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, Ed Dries, Vice-Chair and Lee Holling, Member

Appearances:

Dale McFeeters, Appellant

John Kuntze, Assisting the Appellant

Robyn Carlson, Counsel for the Respondent City of Kawartha Lakes

Michael Tulloch, Engineer

INTERIM DECISION OF THE TRIBUNAL

Background

On April 11, 2017, Dale McFeeters 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 Kawartha Lakes (“Municipality”) on July 26, 2017. The engineer’s report, (“Report”) dated May 21, 2014 for the Darmar-Tamlin Municipal Drain was prepared by Tulloch Engineering Inc., and submitted by Mr. Michael Gerrits, P.Eng., (“Engineer”). The Corporation of the City of Kawartha Lakes adopted the Report under By-Law 2014-206 on November 10, 2015. The construction contract for the drainage works authorized under By-Law 2014-206 was tendered and awarded and work along the open portions of the drain are currently in progress.

Judy Currins, 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 two Affidavits of Service, sworn July 19, 2017 as proof that all parties had been served with the Notice of Hearing and Amended Notice of Hearing.

Overview

At the start of the hearing, both the Appellant and Respondent Municipality made opening statements indicating that they were each relying on the Tribunal’s powers under section 51 of the Act.

The Appellant claimed that the report contained gross errors and referenced the Tribunal’s authority to correct these errors under section 58(4). The Appellant invoked section 51 as authority for the Tribunal to refer the Report back to the engineer for revisions typical of a section 48 appeal related to the appropriateness of design. The Respondent Municipality invoked section 51 as authority for Report revisions to include certain items that had previously been omitted from the Report. However, they did not concede to the assertion that gross errors exist within the Report.

The circumstances of this appeal, as explained by the parties in their opening statements, are exceptionally unique.

Because of the exceptionally unique circumstances, and the requests from both the Appellant and Respondent, and before hearing any evidence in the substantive appeal, the Tribunal adjourned the hearing to resume on September 12, 2017 at 9:00 a.m. at City Hall, City of Kawartha Lakes, 26 Francis Street, Lindsay, Ontario, and issued this interim Decision and Order.

Issues and Discussion

The Appellant’s appeal raised issues related to the quality of construction of portions of the drainage works that are currently under construction along the Darmar Branch Drain D2 and D3. The Appellant’s additional issues include the Main Drain Outlet, manhole locations, ditch inlets and routing along lot lines.

The Tribunal has not heard any evidence related to the Appellant’s appeal and has made no determinations about the merits of any of the Appellant’s appeal issues. Those appeal issues remain to be determined.

The Appellant’s opening statement focused on several items that were omitted from the Report as adopted under By-Law 2014-206. Those items included a watershed map, drawings issued for construction stamped with an engineer’s seal, cost estimates and breakdowns for the project, a schedule for distribution of future maintenance costs. The Appellant raised a concern that the Report without the correction of those omissions could not be a proper report now or in the future. The Appellant urged the Tribunal to correct the omissions by referring the Report back to the Engineer.

The Respondent Municipality’s opening statement focused on the limits of Tribunal jurisdiction in a section 64 appeal extending only to the quality of construction and not to design or route related issues that would have been the subject matter of a section 48 appeal. The Respondent pointed out that a section 48 appeal is a time-limited appeal right that expired 40 days after By-Law 2014-206 was adopted in 2015. However, the Respondent did concede that based on the appeal materials filed by the Appellant, the Respondent accepts that the Report, as adopted, is missing several items that the Respondent characterized as an administrative error. The Respondent urged the Tribunal to use the authority of section 51 to amend the Report and the By-Law to include the omitted items. The Respondent, when queried by the Tribunal, confirmed that it was not moving under section 58(4) of the Act, which subsection engages a process to deal with gross errors found in a report.

The Tribunal is unable to accept that the omissions from the Report as an administrative error. A report is defined under section 1 of the Act as meaning “an engineer’s report containing the information specified in section 8.”

Section 8 of the Act provides as follows (bold emphasis added):

8. (1) Where the council of the initiating municipality has decided to proceed with the drainage works described in a petition, the council shall by by-law or resolution appoint an engineer to make an examination of the area requiring drainage as described in the petition and to prepare a report which shall include,

(a) plans, profiles and specifications of the drainage works, including a description of the area requiring drainage;

(b) an estimate of the total cost thereof;

(c) an assessment of the amount or proportion of the cost of the works to be assessed against every parcel of land and road for benefit, outlet liability and injuring liability;

(d) allowances, if any, to be paid to the owners of land affected by the drainage works; and

(e) such other matters as are provided for under this Act.

It is apparent that the legislation created several mandatory elements to be included in an engineer’s report. Those mandatory elements include:

• 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 costs,

• such other matter as provided for in the Act

One such “other matter” arises under section 74 of the Act, which addresses the distribution of future maintenance costs. Section 74 directs that those costs be apportioned “in any way assessed for the construction…of the drainage works….” In practice that legislative direction has been embodied in maintenance schedules that the engineer includes as part of a report under section 8.

Therefore, the Report as adopted, fails to comply with the requirements of a report under section 8 of the Act.

In these circumstances, the Tribunal finds that these omissions constitute an error in the Report of sufficient magnitude, that doing nothing now would jeopardize the efficacy of the process to date and jeopardize the proper administration of the project going forward.

Subsection 51(1) of the Act, as follows, describes the Tribunal’s powers on any appeal.

51. (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.

That language provides the Tribunal with extremely wide powers to carry out the purposes of the Act.

The purpose of the Act is to create processes to enable landowners to access a means to drain lands. The processes are to be open and transparent. The costs are typically shared by all who benefit by the drainage works. The municipality is given the task of coordinating and administering the processes established under the Act, through the appointment of an engineer, as defined in the Act. The Act also establishes appeal rights to the Court of Revision, to the Tribunal, to the Drainage Referee, and in some cases, to the Divisional Court of the Superior Court of Justice. As with all appeal rights, those within the Act have time limits within which to make an appeal.

Subsection 51(1) of the Act does not give the Tribunal the power to create new appeal rights but section 100 of the Act does give the Tribunal the power to extend the time otherwise limited for application, appeal or reference.

In these exceptionally unique circumstances where the Report, as adopted by By-Law 2014-206, clearly does not comply with the Act because it is missing several elements that are prescribed in the Act, the Tribunal finds that the appropriate remedy is to refer the Report back to the Engineer, with specific directions to revise the Report in accordance with this interim decision and order.

Additionally, to cure any possible process related defects associated with the adoption of a non-compliant Report, the Tribunal extends the time for the Appellant, Dale McFeeters, to appeal the issues in his notice of appeal that might otherwise be time limited under section 48 and section 54 of the Act.

The Tribunal expects that any revisions to the Report arising due to this interim decision and order will be communicated to the parties and the Tribunal, no later than close of business on Tuesday, September 5, 2017.

The hearing of the appeal issues, as directed by this interim decision and order, will be heard commencing September 12, 2017, as noted.

Order of the Tribunal

The Tribunal thereby makes the following orders:

1. This Tribunal panel will remain seized of this matter.

2. The appeal of Dale McFeeters is adjourned to September 12, 2017 at 9:00 a.m. at City Hall, City of Kawartha Lakes, 26 Francis Street, Lindsay, Ontario.

3. The time limit for Dale McFeeters to appeal to the Tribunal under section 48 and section 54 of the Act is extended to March 30, 2017 (being the date the City of Kawartha Lakes received Dale McFeeter’s section 64 Notice of Appeal).

4. The Clerk of the Municipality will serve a Notice of Adjourned Hearing on all parties served with the original Notice of Hearing.

5. At the start of the hearing on September 12, 2017, the Clerk of the Municipality will file an affidavit of service to prove service of the Notice of Adjourned Hearing on all parties.

6. The Report dated May 21, 2014 and adopted November 10, 2015 by By-Law 2014-206 is hereby referred to the Engineer with the following directions:

a. The revised report shall include detailed plans that illustrate the watershed boundaries of the main drain and sub-watershed boundaries of all of the branch drains within it. The plans shall accurately identify the ownership of each parcel of property within the watershed. The plans shall be properly dated, stamped and signed.

b. The alignment of each reach of drain to be constructed shall be shown on the plans and if the alignment differs from that shown in the 2014 report, both the original and revised alignments shall be shown and clearly identified.

c. The revised plans shall contain complete, detailed profiles for all reaches of drain to be constructed under this revised report. Any additions or modifications made to the profiles from the 2014 report shall be clearly identified.

d. The revised report shall contain, detailed construction cost estimates of the various components of the works related specifically to the main drain and each of the branches separately. The costs related to allowances shall also be apportioned to each drain or branch as required. All engineering and administrative costs shall be itemized and summed separately. The apportionment of this overhead cost to the main drain and branches shall be at the discretion of the Engineer. The revised report shall include a summary of the costs as was shown in the 2014 report as an appendix.

e. A new Schedule of Assessment for the main drain and each branch drain shall be developed based on the current estimate of cost. Particular attention shall be given to including all appropriate Special Benefit assessments within the new Schedules as required. The revised report shall include all Schedules of Assessment as shown in the 2014 report (as amended by the Tribunal) as an appendix.

f. The revised report shall include specific direction as to the distribution of future maintenance costs on the main and each branch drain individually. This may take the form of a new Schedule of Assessment for Maintenance. The revised report shall include all references or provisions for maintenance as shown in the 2014 report as an appendix.

7. The Engineer is directed to prepare and present a breakdown of costs (time, disbursements and taxes) associated with (1) engineering of the drainage works up to and including the award of the tender for the work, (2) construction supervision to date, (3) preparation for and attendance at the Tribunal hearing July 26, 2017 and September 12, 2017.