Can-Am Pepper Company Ltd. v. Township of Malahide, 2018 ONAFRAAT 18

Agriculture, Food and Rural Affairs Appeal Tribunal

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: Ellis Drain Branch ‘A’ 2017 (RE) Township of Malahide

Ellis Drain Branch ‘A’ 2017 (RE)

STATUTE: Drainage Act

HEARING: November 29, 2018

DATE OF DECISION: December 14, 2018

016Ellis18

NEUTRAL CITATION: 2018 ONAFRAAT 18

ELLIS drain Township of Malahide, Ontario

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 Can-Am Pepper Company Ltd. under section 64 of the Drainage Act with respect to the Ellis Drain, in the Township of Malahide, Ontario.

Before: John O’Kane, Vice-Chair, Ed Dries, Vice-Chair, and Sarah Judd, Member

Appearances: Chad Underhill, co-owner and Vice-President of the Appellant, Can-Am Pepper Company Ltd. Paul Courey, counsel for the Respondent, Township of Malahide J.M. Spriet, P.Eng., engineer who prepared the report Robert (Bob) Lopez, Drainage Superintendent for the Township of Malahide

DECISION OF THE TRIBUNAL

Can-Am Pepper Company Ltd. appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 64 of the Drainage Act, R.S.O. 1990, Chapter D.17, as amended (the “Act”). The Company was dissatisfied with the quality of construction of the drainage works constructed under an engineer’s report prepared by John M. Spriet of Spriet Associates Engineers & Architects Inc. (the “Report”) dated February 11, 2015 and known as the “Ellis Drain Branch ‘A’ 2017”.

The Tribunal conducted the appeal hearing in the Township of Malahide on November 29, 2018 with Michelle Casavecchia-Somers, Chief Administrative Officer/Clerk of the Township of Malahide performing the duties of Clerk of the Tribunal.

The appeal is dismissed because the Appellant failed to prove that the Ellis Drain Branch ‘A’ 2017 drainage works as constructed were not as designed in the Report.

Preliminary Matters

The Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. No other assessed or compensated landowners attended the hearing.

The Township of Malahide filed an Affidavit of Service, dated November 7, 2018 proving that all parties had been served with the Notice of Hearing.

Evidence, Analysis and Findings

Chad Underhill, the Vice-President of the Appellant Can-Am Pepper Company Ltd., presented the case for the Appellant and was the only witness testifying for the Appellant. Mr. Underhill and other family members own several agricultural production and processing properties in the watershed of the Ellis Drain Branch ‘A’ 2017 works. The properties are owned through different corporate entities, but that fact is not material to the appeal.

On behalf of the Appellant Can-Am Pepper Company Ltd., Mr. Underhill petitioned for a municipal drain to provide a legal outlet for the Appellant’s property having Roll No. 20-218-10.

John M. Spriet, the author of the report, was qualified on consent to give expert opinion evidence as a professional engineer in the discipline of municipal drainage works. He explained that the Township of Malahide accepted the drainage petition and appointed him to prepare the Report. In his Report he recommended the replacement and extension of the existing Ellis Drain Branch ‘A’ under the road allowance of John Wise Line, through the lands of G. Underhill Farms (Roll No. 20-218) to the top of the branch drain at a catchbasin just inside the property line of the Appellant.

There were no appeals from the Report under section 48 of the Act. Section 48 gives appeal rights to parties dissatisfied with the Report regarding the costs versus benefits of the drainage works, the design of the drainage works, the compensation and allowances in the Report, or whether the works are not required or impractical. For example, section 48 appeals resolve issues about whether the works as designed will achieve the petition objectives.

There were no appeals to the Court of Revision under section 52 of the Act, nor to the Tribunal under section 54 of the Act. Sections 52 and 54 give appeal rights to parties dissatisfied with the assessments in the Report. For example, section 52 and section 54 appeals resolve who pays and how much for the drainage works.

Critical to understanding appeals under section 48, 52 and 54 is that those appeals relate to the process before construction of the drainage works.

Critical to understanding an appeal under section 64 about quality of construction is that it relates to the process during or after construction of the drainage works. The issues in a section 64 appeal are whether the construction is according to the design in the Report.

For example, if the Report designed a drain pipe to be 16 inches in diameter and the contractor installed a drain pipe of 10 inches diameter, that circumstance would engage a valid quality of construction issue. In a quality of construction appeal under section 64 the Report design becomes the yardstick against which the completed construction is measured.

As a further example however, if the Report designed a drain pipe to be 16 inches in diameter and that size pipe proved after construction to be inadequate to handle the drainage flows, that circumstance would not engage a valid quality of construction issue. If the constructed works follows the design route, at the design elevations, using the design materials, but still fails to achieve the desired drainage, that is a failure of design and not an issue of quality of construction.

Material to the issues raised in this appeal, the Report called for the installation of 212 meters of 375mm-diameter filtered plastic field tile by tile plough methods.

The contract to construct the drainage works was awarded to Van Brie Drainage and Bulldozing Limited (the “Contractor”). The Contractor sub-contracted part of the construction of the drainage works to Van Gorp Drainage & Excavating Inc. (the “Sub-contractor”). Mr. Underhill testified that the Contractor executed the topsoil stripping and the Sub-contractor ploughed in the 212 meters of plastic field tile.

Mr. Underhill testified that the Sub-contractor ploughed through an existing private tile main and lateral connections to that main. The plough method of installing drains obviates the need to excavate a trench to install the drain pipes.

Mr. Underhill testified that after construction, the Ellis Branch ‘A’ Drain 2017 was not carrying away water in and around the barnyard. He also testified that the Ellis Branch ‘A’ Drain 2017 was not constructed at the right elevation and was certain that the private lateral drains could not connect with the Ellis Branch ‘A’ Drain 2017. He testified that when the Ellis Branch ‘A’ Drain 2017 was constructed, the contractor did not expose the old main drain and take elevations, causing the works to be at too high an elevation to connect with existing private lateral drains.

After construction of the works had been completed, Mr. Underhill contacted Robert Lopez, the Drainage Superintendent for the Township of Malahide because there were several locations where water was bubbling out of the ground. He and Mr. Lopez met and agreed that during construction the Sub-contractor had ploughed through some private drain connections that needed to be re-connected with the Ellis Branch ‘A’ Drain 2017.

Mr. Underhill and Mr. Spriet both confirmed in their testimony that they met in January 2018 at the property about the water not flowing and several missed private lateral drain connections. Mr. Spriet confirmed that he was content with Mr. Underhill managing the Sub-contractor to repair the missed connections because he understood Mr. Underhill was hiring the Sub-contractor to do some additional private tile drainage on the property.

Mr. Lopez testified that in his experience, the cost for connecting lateral drains with main drains would be approximately $100-$200 for an 8-inch connection. Based on his viewing of the property, there were three (3) missed 8-inch connections. He confirmed that if the Town of Malahide was presented with an invoice in those amounts for those three missed connections, the Town would satisfy that invoice.

Mr. Underhill testified that the Ellis Branch ‘A’ Drain 2017 was installed at the wrong elevation and was too shallow where it crossed the farm field. As a result, the existing private lateral drains could no longer connect because the water could not flow uphill and into the Ellis Branch ‘A’ Drain 2017. However, Mr. Underhill provided no elevation evidence about either the previous private main drain that the Ellis Branch ‘A’ Drain 2017 was replacing or about the elevations of Ellis Branch ‘A’ Drain 2017 as constructed. Mr. Underhill called no witness to give engineering evidence about constructing the Ellis Branch ‘A’ Drain 2017. Mr. Underhill called no witness from the Contractor or Sub-contractor of the Ellis Branch ‘A’ Drain 2017 to give evidence about the construction. Mr. Underhill did file a letter dated November 7, 2018 from the Sub-contractor. Counsel for the Town of Malahide raised an objection about that letter and the Tribunal stood down to allow Mr. Underhill to telephone one or other of the authors of that letter to attend and testify. As Mr. Underhill could not have the author attend and respond to cross-examination, the Tribunal places no weight on the contents of that November 7, 2018 letter.

Mr. Underhill testified that when he hired the Sub-contractor to make the three identified connections, it was discovered that the Ellis Branch ‘A’ Drain 2017 was not installed deep enough to intercept the private lateral drains along the entire length of the main.

Mr. Underhill testified that as a result, the Sub-contractor had to install a relief main drain to a greater depth which then allowed the connection of the private lateral drains and then ultimately connected with Ellis Branch ‘A’ Drain 2017. Mr. Underhill produced a June 13, 2018 invoice from the Sub-contractor totaling $25,493.11. Mr. Underhill asked the Tribunal to order the Town of Malahide to reimburse the Appellant in that amount.

Mr. Underhill did not produce a drainage plan showing what work the Sub-contractor did that resulted in the June 13, 2018 invoice. No witness from the Sub-contractor testified about the work performed under that invoice.

The June 13, 2018 invoice from the Sub-contractor contains, among other installed items:

• 240 feet of 8” dual wall pipe
• 835 feet of 10” perforated plastic tile with sock
• 475 feet of 6” perforated plastic tile with sock
• 250 feet of 4” perforated plastic pipe with sock
• Three piece 6” Hickenbottom

It bears repeating that the Report called for the installation of 212 meters of field tile which converts to 695 feet, on the G. Underhill Farms property. The total of the pipe lengths in the June 13, 2018 invoice is 1,800 feet. There was no explanatory evidence about how nearly three times the length of the Ellis Branch ‘A’ Drain 2017 field tile in the June 13, 2018 invoice related to the quality of construction.

John Spriet testified that after construction, as built drawings were prepared to compare the as constructed route and elevations of the Ellis Branch ‘A’ Drain 2017 with the design in the Report. The as built drawing and his evidence confirmed a minor alteration to the drain route that was not material and did not affect the drain function. The as built drawing and his evidence also confirmed minor changes to the elevation of the installed drain tile that were not material and did not affect the drain function. In fact, the as built drawings confirmed that the drain was installed slightly deeper than specified in the report.

Mr. Underhill’s evidence was that the Ellis Branch ‘A’ Drain 2017 was not carrying away the water as he had expected it to. That may be so, but he submitted no reliable evidence about any quality of construction being the reason. The engineer’s evidence was unequivocal and not challenged that the Ellis Branch ‘A’ Drain 2017 was constructed as designed.

For all these reasons, the Tribunal dismisses the appeal.

During argument, the Town of Malahide asked for the opportunity to make written costs submissions after the Tribunal released its decision and reasons and that request is dealt with in the Order.

Order of the Tribunal

Based on the findings and analysis, the Tribunal hereby orders the following:

1. The appeal is hereby dismissed.

2. The disposition of costs of this appeal shall be reserved.

3. The Town of Malahide shall deliver to the Tribunal Coordinator written costs submissions not exceeding five pages within ten days of the release of these reasons.

4. The Appellant shall deliver to the Tribunal Coordinator written costs submissions not exceeding five pages within twenty days of the release of these reasons.

Dated at Collingwood, Ontario this 14th day of December, 2018.