David Goodfellow v. Municipality of Sioux Lookout, 2018 ONAFRAAT 10

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Sturgeon Meadows Drain (RE) Municipality of Sioux Lookout

Sturgeon Meadows Drain (RE)

STATUTE: Drainage Act

HEARING: June 13, 2018

DATE OF DECISION: July 17, 2018

015Sturgeon17

NEUTRAL CITATION: 2018ONAFRAAT10

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 David Goodfellow of Sioux Lookout, Ontario under section 48(1) of the Drainage Act with respect to the Sturgeon Meadows Drain, in the Municipality of Sioux Lookout, Ontario.

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

Attendances: David Goodfellow, Appellant Allan D. McKitrick, Counsel for the Municipality, Respondent John Kuntze, P.Eng., K. Smart Associates Limited, Engineer who wrote the report

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of Sioux Lookout on June 13, 2018 to hear an appeal by David Goodfellow of the Municipality of Sioux Lookout, Ontario under Section 48 of the Drainage Act (“Act”) regarding the Sturgeon Meadows Drain (“Drain”). John Kuntze, P.Eng., (“Engineer”) of K. Smart Associates Limited prepared a report dated May 29, 2017, entitled “Sturgeon Meadows Drain” (“Engineer’s Report”), said report being the subject of this appeal.

Brian McKinnon, Clerk of the Municipality of Sioux Lookout, performed the duties of Clerk of the Tribunal.

For the reasons explained hereafter, the Tribunal denies Mr. Goodfellow’s request and dismisses the appeal.

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 with the Tribunal an Affidavit of Service dated February 25, 2018, as proof that all landowners were served with notice of the hearing.

Site Visit:

At the onset of the hearing, Mr. Goodfellow, the appellant, requested a site visit. He suggested that a site visit would clarify the conflicting evidence. Mr. McKitrick had no objection but suggested that the decision to have an onsite meeting be reserved until the end of the hearing. The Chair confirmed that site visits were not commonly done but the panel would hear the evidence related to this drainage works and decide at the end of the hearing as to whether a site visit was necessary.

Section of Appeal:

Mr. McKitrick requested clarification as to under which section the appeal was filed. He noted that the original notice of appeal filed by Mr. Goodfellow dated September 7, 2017, was an appeal under Section 54. However, the further documents filed by Mr. Goodfellow to this appeal appear only to be related to issues under Section 48. Tribunal staff confirmed that discussions occurred with Mr. Goodfellow after the initial appeal was filed in order to clarify his issues of appeal. The Municipality was made aware of these discussions. As a result, Mr. Goodfellow focused his appeal on matters under Section 48. Mr. Goodfellow confirmed this process. The Chair confirmed that the matters of appeal for this hearing would be under Section 48.

Timing of Appeal:

Mr. McKitrick suggested that the appeal was filed beyond the statutory limit as set out in the Act. Mr. Goodfellow stated that he found the process confusing and had many discussions with OMAFRA and Tribunal staff. He believed that the initial appeal filed was within the time limits as he understood them from his discussions. The Chair stated that although it appears that the initial Goodfellow appeal exceeded the time frame as set out in the Act by two or three days, no party was seriously prejudiced by this minimal delay and the appeal will be recognized.

Content of Document Brief:

Mr. McKitrick claimed that the Document Brief of the Appellant contained irrelevant, abusive, frivolous and vexatious material. He asked that the Tribunal give appropriate weight to the material and indicated that he would be objecting to various comments and references included in the Appellant’s materials. The Chair confirmed that the hearing will stay focused on the issues of appeal and will not accept or give weight to irrelevant documents.

Mr. McKitrick noted that the Appellant’s Document Brief contained selected pages of decisions of previous litigation and subsequent appeals related to this matter but did not include the decisions in their entirety. He asked that the decisions referenced be filed in their complete form. The Chair recognized this as a potential issue and confirmed that should Mr. Goodfellow come to rely on these documents in his evidence, copies of the documents in their entirety would be requested.

Mr. Goodfellow indicated that he had been misled by Mr. Kuntze with regard to the appeal process and evidence that could be presented. He suggested that he would have filed a great deal of evidence related to the drainage in this area that was gathered prior to 2007 but was told that he could not. He asked if it could be filed at a later date. Mr. McKitrick objected to any additional information now being filed that related to the litigation that occurred in 2007. The Chair agreed and asked Mr. Goodfellow to focus his evidence on issues related to the report currently under appeal.

Background

The Engineer’s Report was prepared subsequent to a petition under Section 4(1)(c) of the Drainage Act filed by the Public Works Manager of the Municipality of Sioux Lookout. The petition was for the improved drainage of Sturgeon Meadows Road and Pelto Road north of Tower Hill Road (Lot 9, Range 3 Reserve in the geographic Township of Drayton), now part of the Municipality of Sioux Lookout. There was no record of any previously constructed works under the Drainage Act in this immediate area.

Pelto Road is part of a sixteen-lot residential subdivision development that was approved and registered in 1991 (development approval in this area was originally granted by the Province of Ontario as this area was within an unorganized township at that time). No record of any drainage plan for this development was found.

K. Smart Associates Limited (“Smart”) was appointed by Municipal Council on April 6, 2016 to investigate a new drainage works for this area. All relevant provincial agencies and property owners within the area requiring drainage were invited to a site meeting that was held on May 31, 2016. The meeting was attended only by Andrew Jewel (Public Works Manager, Town of Sioux Lookout) and David Goodfellow (Appellant).

The petition was determined to be valid and Smart commenced the necessary consultations, field investigations, analysis, design options, cost estimations, assessment and report preparation.

The area requiring drainage was determined to be 15.5 hectares. Land use in the drainage area was determined to be primarily rural residential.

Design considerations for the new drainage works outlined two options, with the recommended option, “Option Two”, consisting generally of a combination of open swales and closed drains with an approximate overall length of 350 metres.

The total estimated cost for the works is $100,940.00.

The Engineer’s Report was signed by John Kuntze, P. Eng. and dated May 29, 2017. The Report was considered at a regularly scheduled council meeting of the Municipality of Sioux Lookout on July 10, 2017. Council gave the first and second reading and provisionally adopted a bylaw for the proposed drainage works at that meeting. The Court of Revision was held on August 15, 2017. Mr. Goodfellow initially filed an appeal against his assessment. The appeal was denied by the Court of Revision.

The Appellant then filed an appeal under Section 54(1) of the Act dated September 7, 2017. After discussion with OMAFRA and Tribunal staff, the Appellant changed the nature of the appeal to an appeal under Section 48 in correspondence dated December 12, 2017.

The Issues:

Although it was not explicitly outlined in correspondence dated December 12, 2017, that this was an appeal under Section 48, the Appellant clearly stated that the grounds of the appeal were as follows:

• the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
• the drainage works should be modified on grounds to be stated

The Appellant is asking that this Report be set aside and that a ‘mutual agreement’ drain be constructed on an alternate alignment.

The Evidence:

Mr. David Goodfellow – Appellant

Mr. Goodfellow referenced a technical report titled “Sturgeon Meadows Road Drainage Report – Pelto Subdivision” as prepared by Tetra Tech and dated June 11, 2012. Mr. McKitrick objected to any reference to this report as the author of the report was not in attendance such that he could be cross-examined on the report’s content. The Chair accepted Goodfellow’s reference to this report but once again cautioned Mr. Goodfellow that the Tribunal must give this evidence little weight in light of the fact that the author of this document cannot be cross-examined and the content cannot be tested. He further noted that the document pre-dates the Drainage Act process commenced by the Municipality and the Kuntze investigation and Report. Under cross-examination by McKitrick, Goodfellow confirmed that the Tetra Tech report does not include a recommendation for a preferred alignment but rather discusses the merits of four options.

It was Mr. Goodfellow’s opinion that there were no drainage issues in this area until the Municipality constructed new road ditches on Sturgeon Meadows Road and Pelto Road. He claimed that the runoff collected from the road now discharges concentrated flows onto the lots adjacent to these roads. This concentrated flow has raised the ground water table from four feet to something in the order of fifteen inches below the surface. He claimed that this has resulted in the failure of septic weeping beds, which, in turn, has contaminated the private wells in this area. He confirmed that he installed all of the septic fields in 1990 in highly permeable, sandy loam and clay layer soils. It was his opinion that they all worked well until the new road ditching discharge concentrated flows onto the lots.

When questioned, Mr. Goodfellow stated that there is no effective outlet for the current drainage system from Pelto Road to Abram Lake and the water simply ponds on the lots described as No. 5 and No. 7 that front onto Pelto Road. He expressed the view that any flow discharged into the lake on this alignment would contaminate the lake and carry sediment into the lake. He also confirmed that the photos submitted to illustrate flooding and a high water table were taken only on Lot No. 2. He stated that he did not undertake any similar investigations on the lots farther to the north within the drainage area as there were ‘no issues’ on those lots.

Mr. Goodfellow suggested that the problem would be better addressed if the road ditches on Surgeon Meadows Road were directed southerly to Tower Hill Road and then easterly along the north side of Tower Hill Road to an outlet into Abram Lake. He noted that this was not the route set out in the Kuntz Report but rather one of the optional alignments set out in the Tetra Tech report. Another alternative he offered was to enclose the open ditch with eighteen (18”) and twenty four (24”) inch diameter tile. He stressed that the drainage system he supports would give outlet only to Sturgeon Meadows Road and it would not affect the drainage on or near Pelto Road.

Mr. Goodfellow pointed out that although the lots that front on Sturgeon Meadows Road and Pelto Road are zoned rural residential, he owns almost all of the lots and intends to develop portions of the lots to allow agricultural production in the form of a Haskap berry field. He expressed the view that the current condition causes ponding on these lots and the drainage works as proposed by Kuntze will not alleviate the localized flooding thus threatening his proposed berry development. He also confirmed that he had meetings with Kuntze to discuss alternative drain alignments and asked that alternatives be considered in the report.

Mr. Goodfellow disagreed with the design and alignment of the drain as recommended by Kuntze in his Report (Option 2) but rather preferred the alternative alignment shown in the Kuntze Report and referenced as Option 1. Mr. Goodfellow referenced several photos taken in 2007 and 2012 that he claimed illustrate the degree of localized flooding. He stated that the current drainage outlet from Pelto Road to Abram Lake was designed to accommodate flows only from Pelto Road and does not have the capacity to accept and convey the flows from Sturgeon Meadows Road. Further, it was his opinion that the local soil profile will become saturated with these additional flows thus raising the water table. This higher water table would necessitate the raising of all septic beds in this area.

Mr. Goodfellow claimed that the land within the proposed drainage area was “literally flat”. He stated that the new drain could be taken in any direction without being impacted by the local topography. When questioned, he stated that no water ponds on lots 5 and 21 that front on Tower Hill Road. There is no runoff due to the highly permeable sandy soil.

Mr. Goodfellow requested that a mutual drain be considered that would provide drainage to the roads but not affect his properties. He believed the mutual drain to be a cheaper option that would be easier to construct. He also expressed his preference to construct the drain along the Option 1 alignment as a closed drain. On cross examination he recognized the right of the Municipality to pursue the drainage improvements as a petition under Section 4. He also recognized the need to improve the drainage in this immediate area.

On questioning, he admitted that he had no data on the potential cost of the works along the alternative alignment that he suggested. He also stated that, should the drain be constructed on the alignment he proposed, he should not contribute any cost to the drain. He stated that in his opinion, none of the Pelto Subdivision area should be included in the drainage area, and should just be left alone.

Mr. John Kuntze, P. Eng. – Engineer who prepared the Report

Mr. Kuntze confirmed that K. Smart Associates Limited was appointed to prepare an engineer’s report for the construction of a new drainage works on April 6, 2016. The objective of that report was to recommend an outlet for the areas as described in the petition as Sturgeon Meadows Road and Pelto Road. His research of drains in this area confirmed that no drainage scheme had been developed or implemented as part of the Pelto subdivision.

Mr. Kuntze stated that the first step in the process was the on-site meeting that was attended by Mr. Jewel, the Public Works Manager and Mr. Goodfellow. He testified that Mr. Jewel requested the development of a new drainage system that would effectively provide outlet for Sturgeon Meadows Road and Pelto Road as described in the petition. Mr. Goodfellow requested the development of a new drainage system along an alignment that generally went south to Tower Hill Road and then easterly to an outlet into Abram Lake. He referenced the Tetra Tech report in his discussions with Mr. Kuntze at that time. Mr. Kuntze confirmed that he did not commit to any alignment at the site meeting but agreed to investigate options.

Mr. Kuntze offered extensive evidence as to the topography and existing drainage conditions that he found onsite. The evidence may be generally summarized as follows:

• there is no natural watercourse in this immediate area
• there is no outlet for the culvert under Pelto Road
• the low point on Sturgeon Meadows Road and Pelto Road was near the line between Lots 2 and 4
• Sturgeon Meadows Road did not have an outlet
• the natural gradient of the land rises to the north and to the south of the low point on Sturgeon Meadows Road and Pelto Road
• a survey was undertaken along the distinct low area generally from Surgeon Meadows Road, easterly along the line between Lots 2 and 4, across Pelto Road and across Lots 5 and 7 to an outlet into Abram Lake
• consideration was given to the alternative alignments set out in the Tetra Tech report
• the alternative alignment suggested by Mr. Goodfellow and described as Option 1 in the Report was surveyed and analyzed
• there is 2.7m of elevation difference from the culvert under Sturgeon Meadows Road to the outlet into Abram Lake along the alignment recommended in the report
• the alternative alignment described as Option 1 in his Report is not a reasonable consideration as it is longer; has a much greater maximum depth; would require 3 times more excavation volume; would require more brush removal; would require two additional access culverts; and would still require construction of another drainage system to serve Pelto Road
• the recommended drainage works would not negatively impact the use of the land by Mr. Goodfellow for his proposed berry development, as the area proposed to be used for agricultural purposes in the future could at that time be easily enclosed to allow for agricultural use over the enclosed portion of the drain
• the recommended alignment is more hydraulically efficient as it is shorter, has fewer bends and has a greater design gradient.
• the recommended drainage works satisfy the requirement of the petition to provide a sufficient legal outlet to Sturgeon Meadows Road and Pelto Road
• the recommended drainage works will not pose any increased damage or hardship to the properties on which it will be built; it will more effectively remove surface runoff and eliminate ponding and will have no effect on the groundwater table elevation
• the only practical way for the Municipality to proceed on this drainage works was a petition under Section 4, and that a mutual agreement drain was not feasible in his opinion

In conclusion, Mr. Kuntze stated that the works proposed in his Report will have a positive impact on the environment and remove surface water ponding. He was satisfied that he had recommended the best solution based on the field conditions. Once this bylaw is adopted, he confirmed that the works will be maintained under the bylaw by the Municipality as set out in the Act. This would not be the case had the work been undertaken as a mutual agreement drain.

Tribunal’s Findings

Dealing with a preliminary issue raised by Mr. Goodfellow, the Tribunal was of the opinion that there were no extraordinary reasons for a site visit given the evidence put forward in this case.

Generally, Mr. Goodfellow’s appeal relating to modifications to the drain was rooted in the report titled “Sturgeon Meadows Road Drainage Report – Pelto Subdivision” as prepared by Tetra Tech. Very little weight was given to references from that report as that evidence could not be tested and the report lacked any significant technical detail.

Mr. Goodfellow’s testimony that the construction of new road ditching on Sturgeon Meadows Road and Pelto Road caused additional surface water discharge onto the adjacent lots may have merit. However, the Municipality took appropriate action and signed a petition under Section 4 of the Act to address this issue. The Tribunal does not accept his argument that this additional ponding has resulted in a rise in the water table that has subsequently resulted in the failure of septic systems that in turn contaminated local wells. No evidence was provided by an expert in this field of study to support these claims. Further, Mr. Goodfellow confirmed that his investigation into these issues was generally limited to Lot No. 2. No evidence was presented that identified these same issues on other lots within the watershed.

Although Mr. Goodfellow claimed that the proposed works would negatively impact his proposed development of a Haskap berry field, he offered no evidence to support that position. The Tribunal accepts the evidence of Mr. Kuntze in this matter in that the proposed drainage works would eliminate surface ponding on the lots and facilitate the development of the berry field, and as well could be easily modified in the future if the development should proceed.

The Tribunal does not accept the argument of Mr. Goodfellow that the proposed outlet of the drain from Pelto Road to Abram Lake cannot be improved to effectively accommodate the flow generated from Sturgeon Meadows Road via the newly proposed drain. No expert opinion or hydraulic calculations were offered to support this position. Alternatively, the Tribunal accepts the evidence of Mr. Kuntze on this issue who confirmed that a sufficient gradient, depth and cross-section can be achieved in this reach of the drain to provide a sufficient outlet that complies with the requirements of the Act.

The Tribunal does not accept the claim of Mr. Goodfellow that the land is “literally flat” which implies that the drainage works could be constructed on alternative alignments with no technical or financial impacts. The evidence of Mr. Kuntze was very clear on this issue. The lands within the watershed are significantly impacted by elevation contours. He clearly illustrated the impacts with the inclusion of survey data along the proposed and alternative routes of the drain. The extensive data along the alternative alignment confirmed this option to be longer, require a great deal more excavation, require additional access culverts and be significantly more expensive.

The Tribunal does not support the assertion by Mr. Goodfellow that the drain should be constructed as a mutual agreement drain. The Tribunal accepts Mr. Kuntze’s argument that the Municipality has a right under the Act to proceed under a petition and that the subsequent report adopted by bylaw provides a clear, enforceable mechanism to maintain the drain in the future.

The Tribunal is satisfied that all of the proper procedures as required under the legislation were followed by the Municipality and the Engineer in this matter.

ORDER OF THE TRIBUNAL

Therefore, the Tribunal Orders as follows:

1. That the appeal of David Goodfellow under Section 48 of the Act be dismissed.
2. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works and such costs shall include the Engineer’s fees and expenses for the preparation and attendance at the Tribunal hearing.
3. There shall be no other Order as to costs. All parties shall be responsible for their own costs.

Dated at Tecumseh, Ontario this 17th day of July, 2018.