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:

Dingle Creek Municipal Drain (RE) County of Norfolk

Dingle Creek Municipal Drain (RE)

STATUTE:

Drainage Act

HEARING:

November 27, 2017

DATE OF DECISION:

May 30, 2018

007DingleCreek15

NEUTRAL CITATION:

2018ONAFRAAT07

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Joan Free, Helene Zorad, Marilyn Gillespie-Burleson of Simcoe, Ontario and El-Ahmed Orchard Ltd. of Ancaster, Ontario under Sections 48 and 54 of the Drainage Act with respect to the Dingle Creek Municipal Drain in the County of Norfolk.

Before:

Paula Lombardi, Vice-Chair; Ed Dries, Vice-Chair and Tim Mousseau, Member

Attendances:

David Free, representative for Joan Free, Appellant

Marilyn Gillespie-Burleson, Appellant

Ibrahim El-Ahmed for Al-Ahmed Orchard Ltd., Appellant

Mark Abradijan, Counsel for Norfolk County, Respondent

Bill Mayes, Drainage Superintendent, Norfolk County

William Dietrich, P.Eng., Engineer who wrote the report

Paul Courey, Counsel for the Engineer

Greg Nancekivell, Project Manager, Dietrich Engineering Limited

Brian Verspagen, P.Eng., Walter Fedy Partnership

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in Norfolk County on November 27, 2017 to hear appeals by Joan Free, Helene Zorad, Marilyn Gillespie-Burleson of Simcoe, Ontario and El-Ahmed Orchard Ltd. of Ancaster, Ontario under Sections 48 and 54 of the Drainage Act (“Act”) regarding the Dingle Creek Municipal Drain 2014 (“Dingle Creek” or “Drain”) in the County of Norfolk (“County”). William Dietrich, P.Eng., (“Engineer”) of Dietrich Engineering Limited created a report dated April 4, 2014 concerning Dingle Creek Municipal Drain 2014 (“Engineer’s Report”).

Andrew Grozelle, 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 or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service dated November 24, 2017, with the Tribunal as proof that all landowner parties have been served with notice of the hearing.

Motion for Party Status

At the onset of the hearing, Mr. Courey brought a motion seeking party (intervenor) status for Dietrich Engineering Limited and Mr. Dietrich personally. The rationale provided in support of the request for party status was that the County has no duty to defend Mr. Dietrich personally as he acts only as a witness for the County for the purpose of the Engineer’s Report.

Mr. Courey argued that the allegations being made by the Appellant, Ms. Joan Free, could potentially give rise to a risk of professional liability to Mr. Dietrich. The Appellant, Ms. Free, in her appeal, raised a constitutional issue that Mr. Courey argued is distinct from this hearing, but appeared to question the independence of Mr. Dietrich. Mr. Courey’s position was that the balance of convenience and the balance of harm favours the granting of party status to both Dietrich Engineering Limited and Mr. Dietrich in the circumstances.

The County had no objection to the granting of party status to Dietrich Engineering Limited and Mr. Dietrich.

The Appellant, Ms. Joan Free, represented by Mr. David Free (“Mr. Free”), objected to the motion brought by Mr. Courey seeking party status for Dietrich Engineering Limited and Mr. Dietrich on the basis that it should have been in writing to allow an opportunity for a proper review and response. Mr. Free argued that as part of the appeal it is important to determine whether or not the engineer acted independently. Mr. Free also argued that this motion raised a unique constitutional question that should not be part of this hearing.

The Tribunal notes that all of the parties including Ms. Free were advised of the motion to seek party status well in advance of the hearing by way of a letter from Mr. Courey dated November 13, 2017.

After hearing the submissions of the parties, the Tribunal granted Mr. Dietrich and Dietrich Engineering Limited party status to the appeal. Rule 25 of the Agriculture, Food and Rural Affairs Appeal Tribunal Rules of Procedure (“Rules”) provides that a motion can be made at the start of the hearing. The Tribunal found that the motion was properly made.

The Tribunal also found that Mr. Dietrich and Dietrich Engineering Limited (collectively referred to as “Dietrich”) would suffer greater harm from being refused party status in the circumstances than the other parties to the hearing would potentially suffer and granted Dietrich party status to the proceedings.

Motion to Submit Additional Information

The Appellant, Ms. Free, through her representative, Mr. David Free, brought a motion at the start of the hearing to file additional materials in support of the appeal filed. The Tribunal notes that Ms. Free was not in attendance at the hearing. The County and Dietrich objected to the filing of additional materials at the start of the hearing. Mr. Free argued that there was nothing in the Rules requiring that the materials be filed prior to the start of the hearing or, alternatively, precluding seeking permission to file the materials by bringing a motion before the Tribunal.

The County objected to the filing of any new material by Ms. Free and pointed out that the Notice of Hearing clearly indicated the date upon which the materials had to be filed by the parties. The County argued that it would be inappropriate for the Tribunal to accept the materials at the start of the hearing without providing time for the other parties to review the materials. The County also argued that there was no information provided as to the relevance of the materials and why they could not have been submitted within the deadline set out in the Notice of Hearing. Dietrich also objected to the filing of new materials and echoed the concerns expressed by the County.

The Tribunal stood down the hearing for a brief period to allow the County and Dietrich to review the additional materials submitted by the Appellant, Ms. Free. Upon reviewing the materials the County indicated that much of the information appeared to be argument and not related to the Appellant’s Section 48 appeal.

The County and Dietrich had no objection to the admission of the last-minute materials subject to proof of the factual information and a determination of its relevance along with the Tribunal taking into account how much weight should be given to the materials. The Tribunal allowed the additional materials to be filed subject to their proof and a determination of relevance.

Background

The Dingle Creek Municipal Drain (“Drain”) is a municipal drainage system that provides an outlet for two municipal drainage systems located within its watershed. These two municipal drainage systems are described as: (i) the Dingle Creek Municipal Drain, consisting of a main drain (open and closed portions), Branch 1 and Branch 2; and, (ii) the Woolley Municipal Drain, consisting of the main drain (open and closed portions), Branch 1, Branch 2, and Branch 3.

The Engineer’s Report proposes to construct a third drainage system within the Dingle Creek watershed being the Highway No. 3 Municipal Drain that consists of the Main Drain, Branch 1 and Branch 2.

Section 4 of the Drainage Act applies when a petition has been filed with the municipality seeking drainage works for a specified area. Section 78 of the Drainage Act applies when the municipality responsible for maintaining and repairing drainage works constructed under the Drainage Act considers it appropriate to undertake an improvement to the drainage works, or parts of the drainage works for either better use, maintenance or repair.

A petition under Section 4 of the Drainage Act was filed with respect to the lower reach of Dingle Creek, upper reach of Dingle Creek, Branches 1 and 2 of Dingle Creek, and Highway No. 3 Municipal Drain. A request for repair and improvement under Section 78 of the Drainage Act was also filed for the Wooley Municipal Drain.

Dingle Creek Municipal Drain

Dingle Creek Municipal Drain – Lower Reach

The lower reach of Dingle Creek is a natural watercourse. In the 1970s numerous studies and reports were completed on this section of Dingle Creek. The common theme in those reports included concerns with flooding and erosion of Dingle Creek and sediment loading of the Lynn River. The individual landowners in the area have attempted to resolve the erosion concerns of Dingle Creek through the use of stone rip-rap, gabion baskets, railway ties, block walls, poured-in-place concrete, and the realignment of portions of Dingle Creek. These erosion control measures were constructed on private property and absent municipal approval; therefore, any maintenance is solely at the discretion of the private landowners. The Tribunal notes that any such works by private landowners also require authorization from the Long Point Region Conservation Authority (“Conservation Authority”) for in-stream type of work.

The lower reach of Dingle Creek consists of a wide range of land uses including agricultural, woodlots, commercial and residential. The watershed area of the lower reach is approximately 402 hectares.

The Engineer’s Report confirms that the existing channel is a natural watercourse and many trees have fallen into the watercourse creating obstructions and blockages. The existing erosion control measures are in need of maintenance and/or reconstruction, and the existing culvert under Hendry Street is in a poor state of repair. The peak flow rates in this area have been increasing with the development occurring in the watershed.

The Engineer’s Report recommends, among other measures, that natural bank stabilization measures in conjunction with updated stormwater management criteria be applied to this area.

Dingle Creek Municipal Drain – Mid-Reach

The mid-reach of Dingle Creek is a closed system constructed within the Queensway East road allowance and along several commercial properties and has a watershed area of approximately 322 hectares. The watershed area encompasses a wide range of land uses including agricultural, woodlot, commercial and residential.

The mid-reach has no status under the Drainage Act as it is a private drainage system. Upon a camera inspection this area was found to be in a good state of repair. The Engineer’s Report concluded that this portion of the drainage system (mid-reach) is of sufficient capacity and depth to adequately provide outlet for the surrounding and upstream lands at an acceptable standard.

The Engineer’s Report recommends that the existing closed system be incorporated as part of the Dingle Creek Municipal Drain.

Dingle Creek Municipal Drain – Upper Reach

The watershed area of the upper reach of Dingle Creek is approximately 322 hectares in area consisting of agricultural, woodlot, commercial and residential land uses. This area also includes lands designated by the Ministry of Natural Resources and Forestry (“MNRF”) as Provincially Significant Wetlands (“wetlands”).

The upper reach of Dingle Creek is situated primarily on privately owned residential and commercial lands. The existing ponds located in this area are assumed to be privately constructed for purposes other than stormwater management. The existing ponds have built up with sediment brought into the area with runoff from overland flow from the adjacent lands and upstream channel flow. As runoff collects in the ponds, the sediment settles and takes up space that would otherwise be used for the purposes of stormwater runoff collection. The loss of the storage capacity in the ponds is considered a significant issue because the runoff that would otherwise be stored in the ponds is then transferred downstream. Portions of the upper reach are within an area designated as Provincially Significant Wetlands by the MNRF.

The Engineer’s Report notes that the Dingle Creek Ponds: are in a poor state of repair; have not been adequately maintained; the culvert between the ponds and the existing outlet structure are in disrepair; and, the ponds have been designated as Provincially Significant Wetlands. The open portions of Dingle Creek on the Canadian Tire Real Estate Ltd. (“Canadian Tire”) property have been designated as a Provincially Significant Wetland and as a result do not require improved drainage due to their wetland status.

The Engineer’s Report recommends, among other measures, that: the ponds be completely reconstructed; the open portion on the R. Wiens (Roll No. 70-843) property be enclosed and replaced with a closed system; and, no increased drainage be permitted on the Canadian Tire Property (Roll No. 70-836-20) and the 1186813 Ontario Ltd. Property (Roll No. 70-836) due to their designation by the MNRF as Provincially Significant Wetlands.

Dingle Creek Municipal Drain – Branch 1

The Branch 1 portion of Dingle Creek is a closed system constructed within the Queensway East road allowance and on numerous commercial and residential properties. The watershed for Branch 1 includes primarily commercial lands and includes an area of approximately 17.9 hectares.

Currently Branch 1 is a private drainage system that is considered to be of sufficient capacity and depth to adequately provide outlet for the surrounding and upstream lands.

The Engineer’s Report recommends that the existing closed system be incorporated as part of the Dingle Creek Municipal Drain.

Dingle Creek Municipal Drain – Branch 2

Branch 2 of the Dingle Creek Municipal Drain is the downstream portion of the drain that originates at the River Clover Shopping Centre property. Portions of the drain are situated within the Queensway East road allowance. This portion of the drain provides an outlet for the Royal Clover Shopping Centre. The Engineer’s Report focuses on the portion of the drain located downstream from the south road limit for Queensway East. The watershed area is 6.26 hectares and consists primarily of the Royal Clover Shopping Centre property and some surrounding residential land uses. The lands located in this watershed area are primarily impervious in nature.

Branch 2 is a private drainage system that is considered to be of sufficient capacity and depth to adequately provide outlet for the surrounding and upstream lands within the defined watershed it serves.

The Engineer’s Report recommends that the existing closed system be incorporated as part of the Dingle Creek Municipal Drain.

Highway No. 3 Municipal Drain – Main Drain

The drainage system located within the Highway No. 3 watershed consists of a roadside ditch on the south side of Highway No. 3 that slopes westerly towards the intersection of Ireland Road and Highway No. 3. The drainage system then turns into a subsurface system that is located under the intersection and runs along Queensway East to eventually outlet into Dingle Creek at the Canadian Tire property (Roll No. 70-836-20).

In addition to the roadside ditch, there are numerous swales between the properties located along Highway No. 3 to drain runoff from the upstream areas of the watershed, including the agricultural lands, by conveying the runoff through back yards, between the houses, leading eventually to the roadside ditch.

The roadside ditch along the southerly side of Highway No. 3 was identified as: being generally poorly graded; containing sections that are either too flat to drain or have a reverse grade (graded away from the outlet); and, consisting of areas too shallow to contain and drain the runoff from the upstream lands and roads. This watershed area consists primarily of agricultural lands, some residential and paved roads and is approximately 49.8 hectares in area.

There is currently no surface or subsurface drainage system located within the watershed to drain the runoff from upstream lands to a legal outlet. The roadside ditch is insufficiently graded to appropriately contain and convey the runoff to a legal outlet. The poorly graded ditch contains undesirable vegetation growth resulting in the obstruction of the effective drainage of the ditch. The inability to effectively convey runoff through the road ditch results in the swales being backed up causing partial flooding of properties in the area. There are no surface inlets located along the south roadside ditch to drain standing water. Highway No. 3 and Queensway East are not equipped with legal outlets for drainage of the roads. The existing drainage system in this area was found to be insufficient to convey runoff at current standards without causing flooding to the properties located along Highway No. 3.

The Engineer’s Report recommends: the installation of a new tile system to address standing water systems; installation of numerous catch basin inlets along the route of the drain and in the roadside ditch; regrading and sloping of the south ditch; installation of a stub drain (an offset catch basin) to provide the agricultural property of El-Ahmed Orchard Ltd. (Roll No. 10-206) with a sub-surface outlet and relieve the Woolstock Holdings Inc. property (Roll No. 10-179) of surface water; and, installation of a stub drain at the north-west corner of the Woolstock Holdings Inc. property, among other measures. The Engineer’s Report recommends that the Highway No. 3 Municipal Drain be designed using a 2-year storm event.

Highway No. 3 Municipal Drain – Branch 1

Branch 1 currently has no drainage system, private or municipal, and is a new branch proposed to provide adequate drainage for the surrounding lands. The Engineer’s Report notes numerous low-lying areas in the rear yards that have no means of adequately draining surface water flow from the private yards to the southerly road ditch located along Highway No. 3. This watershed area consists primarily of agricultural lands and is approximately 1.6 hectares in area.

The Engineer’s Report recommends that a new branch be constructed to provide an outlet for standing water in the impacted rear yards.

Highway No. 3 Municipal Drain – Branch 2

Branch 2 is an existing storm sewer situated entirely on the Ireland Road right-of-way. This watershed area consists primarily of agricultural lands, some residential and paved roads and is approximately 2.8 hectares in area.

The Engineer’s Report notes that aside from the existing storm sewers located along Ireland Road and the north side of Queensway East, there are no subsurface drainage systems located within the Highway No. 3 east watershed that are both “legal” (constructed and maintained pursuant to the provisions of the Drainage Act) and effectively drain the runoff from the lands located upstream to a sufficient outlet.

The existing storm sewer system located along the east side of Ireland Road is a closed system that was not installed under the provisions of the Drainage Act. The closed system was found to be of sufficient capacity and depth to adequately provide outlet for the surrounding and upstream lands to current design standards.

The Engineer’s Report recommends that the existing closed system be incorporated as part of the Highway No. 3 Municipal Drain and be referred to as Branch 2 of the Highway No. 3 Municipal Drain.

Woolley Municipal Drain

Both the Main Drain and branches were constructed in accordance with an engineer’s report prepared by MacDowell and Jewitt, dated March 19, 1963. An engineer’s report was prepared by John B. Dodd for the downstream extension of the drainage works in 1973. In 1984 the lower portion of the drain was again extended pursuant to an engineer’s report prepared by J. Bryon Wiebe dated September 30, 1984. Branch 2 of the Woolley Drain was constructed in accordance with the provisions of an engineer’s report prepared by J. Byron Weibe Ltd. dated November 17, 1987.

The outlet for the Main Drain and branches is into the upper reach of Dingle Creek approximately 50 metres north of the Queensway East and Ireland Road intersection.

The watershed area of the Woolley Municipal Drain consists primarily of agricultural lands and large woodlots and is approximately 281.8 hectares in area.

A significant portion of the area of the Woolley Drain is wetland and designated as Provincially Significant by the MNRF. The agricultural lands located in the watershed have a sufficient outlet. The open portions of the Woolley Drain and its branches were found to be obstructed by significant amounts of sediment.

The Engineer’s Report recommends, among other measures: cleaning of the open portions of the main drain as well as the three branch drains; installation of a corrugated metal pipe at the future Ireland Road extension; and, construction of a concrete headwall downstream at the end of the culvert.

Requirements of the Drainage Act

The following petitions for the drainage works were received under Section 4 of the Drainage Act: Dingle Creek lower reach dated June 8, 2005; Dingle Creek upper reach dated June 27, 2006; Dingle Creek Branch 1 dated June 27, 2006; Dingle Creek Branch 2 dated April 4, 2007; and, Highway No. 3 main drain, Branches 1 and 2 dated November 2, 2007.

A request was also made under Section 78 of the Drainage Act for repairs and improvements to the Woolley Drain. Discussions were held with the Long Point Region Conservation Authority, the MNRF, Norfolk County and landowners in the area where the improvements are required, being the low lying marshy areas of part of Lots 4 and 5, Concession 14, former Township of Townsend, Norfolk County.

Numerous on-site meetings were held as required by the Drainage Act. The on-site meetings were held on the following dates:

• Lower Reach of Dingle Creek – November 23, 2005;
• Mid Reach of Dingle Creek – November 24, 2006;
• Upper Reach of Dingle Creek – November 24, 2006;
• Branch 1 of Dingle Creek – November 24, 2006;
• Branch 2 of Dingle Creek – August 8, 2007; and,
• Highway No. 3 Municipal Drain – May 28, 2008.

There were also several information meetings held to discuss the design specific portions of the proposed drainage works with the landowners and regulatory agencies. A total of five information meetings were held at the Junior Farmers Building in Simcoe. At these meetings the landowners were divided into groups based on land uses and interests in an attempt to simplify the content of each meeting. The landowners meetings were held on March 26, 2010, March 30, 2010 and March 31, 2010.

Issues for Consideration

A. El-Ahmed Orchard Ltd. (Roll No. 10-206)

Ibrahim El-Ahmed represents El-Ahmed Orchard Ltd., the property that is assessed for a portion of the cost of the works carried out on the Dingle Creek Drain, the Highway No. 3 Municipal Drain – Main Drain, and the Highway No. 3 Municipal Drain – Branch No. 1. Mr. El-Ahmed filed an appeal against the assessment levied against this property to the Tribunal under Section 54 of the Drainage Act.

• Should the assessment be reduced?

B. Ms. H. Zorad (Roll No. 10-185)

Ms. Helene Zorad owns approximately 38.4 hectares of agricultural lands located in the south-easterly portion of the watershed. Ms. Zorad filed an appeal against the assessment levied against this property to the Tribunal under Section 54 of the Drainage Act.

• Should the assessment be reduced?

C. Ms. Marilyn Gillespie Burleson (Roll No. 10-148)

Ms. Gillespie Burleson is assessed for a portion of the cost of the drainage works carried out on the Dingle Creek Drain, and the Highway No. 3 Municipal Drain – Main Drain. Ms. Gillespie filed an appeal against the assessment levied against this property to the Tribunal under Section 54 of the Drainage Act.

• Should the assessment be reduced?

D. Ms. Joan Free

Ms. Free filed an appeal under Section 48(1) of the Drainage Act. The general grounds for this appeal suggest that the benefit to be derived from the drainage works are not commensurate with the cost and the drainage works should be modified.

• Should the design be altered as requested?

Calculation of Assessments

The engineer who prepared the report, Mr. Dietrich, was sworn in and provided the Tribunal with an overview of the drainage works being proposed and explained how the assessments were calculated.

Mr. Dietrich explained that the assessments set out in the Engineer’s Report are divided into four parts and therefore four assessment schedules were developed:

• Dingle Creek Municipal Drain;
• Highway No. 3 Municipal Drain;
• Woolley Municipal Drain; and,
• Wetland Initiative.

For the Dingle Creek Municipal Drain, Mr. Dietrich noted that Norfolk County is assessed approximately 60% of the cost of this portion of the drainage works and the remaining 40% of the cost of the drainage works is assessed to the agricultural lands and non-agricultural lands affected by the proposed drainage works.

The second part of the drainage works relates to the Highway No. 3 Municipal Drain. Collectively the Ministry of Transportation of Ontario and Norfolk County are assessed approximately 81% of the costs of these drainage works. The agricultural lands are assessed approximately 2% of the costs of the drainage works. The remaining portion of the costs are assessed against the residential and commercial lands located within the area affected by this portion of the drainage works.

As it relates to the Woolley Drain, the lands within the area affected by this portion of the drain are largely commercial or residential. Very little agricultural lands are affected or assessed in this portion of the drain.

It was confirmed by Mr. Dietrich that the total cost related to the Wetland Initiative was fully assessed to the property owned by 1186813 Ontario Ltd. (Roll No. 70-826).

Mr. Dietrich noted that the overall split between outlet and benefit are reasonable and the method applied to calculate outlet liability is the same as what is applied to similar drainage projects and that a modified Todgham method was used to assess liability.

Mr. Dietrich noted that the Appellants who filed appeals under Section 54 of the Drainage Act appeared to raise a concern with how the assessments were arrived at particularly when compared to the neighbouring properties. Mr. Dietrich noted that for example the H. Zorad property (Roll No. 10-185) is an agricultural property located in the easterly portion of the watershed. The total property area is approximately 38.4 hectares. However this property was assessed at 15.78 hectares because the information indicated that in 1979 there was tiling completed on the farm directing runoff from those lands to the Highway No. 3 Main Drain. Mr. Dietrich testified that if more of the property had been tiled the assessment would have increased. The Zorad property was assessed as outlet liability only and not assessed a benefit. Mr. Dietrich confirmed that the methodology for calculating assessments of the Zorad property was consistent with what was used and applied to all of the other properties.

Ms. H. Zorad (Roll No. 10-185)

Ms. Zorad owns approximately 38.4 hectares of agricultural lands in the south-easterly portion of the watershed (“Zorad Property”). Ms. Zorad took the position that her property is farm tiled and that the proposed drain provides no benefit to her property.

The Zorad Property was assessed in the Engineer’s Report for 15.78 hectares on the basis that the remaining area was tiled. The benefits to the Zorad property arising from the proposed drainage works was assessed as outlet liability only and not a benefit assessment. Information was provided to the Engineer confirming that in 1979 there was tiling done on the farm and it was based on this information that the remaining hectares were assessed as outlet liability. The Engineer confirmed that if information was provided showing additional tiling it would have increased the assessment based on the amount of property located within the drainage basin and the existing topography. The methodology applied in determining the assessment for the property was found to be consistent with all of the other parcels.

For these reasons, the Tribunal will deny the appeal filed by Ms. Zorad.

Ms. Marilyn Gillespie Burleson (Roll No. 10-184)

Ms. Burleson did not appear at the hearing and instead provided a written submission to the Tribunal. Ms. Burleson’s concern was that two of the neighbouring properties with the same area including frontage and rear yard were assessed at a different rate. Ms. Burleson expressed concerns the neighbouring properties were assessed at a lower rate because of the existence of woodlots and argues that her property should be assessed at the same rate. Ms. Burleson also indicated in her submissions that the neighbouring property owners were either thinning or removing the woodlots and this was not taken into consideration by the Engineer.

Mr. Dietrich expressed concern that Ms. Burleson was comparing the assessment based on frontage and not acreage. Mr. Dietrich testified that the reason that Ms. Burleson’s assessment was higher than the neighbouring property is because the property located immediately to the west is slightly smaller and also consists of 80% of bush or woodlot. Mr. Dietrich testified that there was no evidence indicating that the neighbouring property to the west was thinning or removing the woodlot.

The Tribunal reviewed the written information provided by Ms. Burleson and found that the assessment was calculated reasonably and in a similar manner for all properties. There was no evidence presented to the Tribunal in support of the allegation that the neighbouring properties are removing or thinning the existing woodlots.

For these reasons, the Tribunal will deny the appeal filed by Ms. Burleson.

El-Ahmed Orchard Ltd. (Roll No. 10-206)

El-Ahmed Orchard Ltd. (“El-Ahmed Orchard”) owns property located within the catchment area of Dingle Creek, Highway No. 3 – Main Drain and Branch 1, that is currently being used for farming purposes. The total area of El-Ahmed Orchard Ltd. property is approximately 27 hectares of which 16.2 hectares are assessed.

El-Ahmed Orchard testified that their lands do not receive any benefit from the proposed construction of the drainage works and that they are assessed by the amount of acreage, which they do not think is appropriate. El-Ahmed Orchard clearly stated that it is not objecting to the drainage works but instead raising a concern with the amount of the assessment placed on the El-Ahmed Orchard property. The recommendation of El-Ahmed Orchard was that the assessment be based on the amount of water to be directed to the drain as opposed to the land area.

El-Ahmed Orchard testified that they rotate corn and soya beans and have had no drainage issues farming the property that they have owned and operated since 1993.

The Tribunal finds that the El-Ahmed Orchard property gets the benefit of a direct connection to the municipal drain regardless of whether or not it chooses to utilize that benefit. The outlet liability charges imposed are similar and consistent with the outlet liability charges in the area.

For these reasons the Tribunal will deny the appeal filed by El-Ahmed Orchard.

Ms. Joan Free

Ms. Joan Free was represented by Mr. David Free, her spouse, in relation to her appeal filed under Section 48(1) of the Drainage Act. Mr. Free, in addition to requesting the filing of new materials discussed above also requested, without any prior notification to the Tribunal or other parties or submitting witness statements/summaries, that two witnesses be allowed to provide testimony in support of the appeal filed by Ms. Free. These two witnesses were identified as Ms. Sonnenberg, a landowner in the area subject to the proposed drainage works and Mr. Brunton. It was noted that Mr. Brunton is not a property owner in the area subject to the proposed drainage works. Mr. Brunton is a current member of Norfolk County Council and the former manager of public works and drainage superintendent with the former Town of Simcoe.

The Tribunal noted that as a property owner of the lands assessed under the Engineer’s Report that Ms. Sonnenberg was already considered a party to the hearing. In the Notice of Hearing provided to the parties on November 9, 2017 it clearly indicated that witness statements/summaries were to be provided in advance of the hearing. The Tribunal indicated that as an assessed party to the hearing, Ms. Sonnenberg could present her information and evidence to the Tribunal.

Absent being advised in advance of Mr. Brunton’s witness statement/summary and taking into consideration that Mr. Brunton indicated that he did not own property in the area subject to the drainage works nor was he assessed under the drainage works, the Tribunal indicated that Mr. Brunton would not be permitted to be a witness in support of Ms. Free’s appeal.

Ms. Sonnenberg - Testimony

Ms. Sonnenberg advised the Tribunal that she currently resides at Lot 7, Concession 11 and has resided at that address for approximately 45 years. Ms. Sonnenberg’s property use to be located in the Township which has now become part of the County.

Ms. Sonnenberg confirmed that she attended the public meetings but never signed a petition in support of the proposed drainage works. Ms. Sonnenberg did indicate that she is interested in this matter as she has been assessed for the various clean outs of the Woolley drainage ditch over the years.

Ms. Sonnenberg testified that she attended the meeting on the first plan associated with the drainage works in or around May 27, 2015. Ms. Sonnenberg indicated that she was not familiar with the Dingle Creek and had no knowledge of the pine trees and oak trees located on the south side of Queensway East. Ms. Sonnenberg did indicate that she was only remotely aware of the Dingle Creek because she was a vice principal of a school in the area and, due to the creek’s proximity to the high school, she was aware that kids would hang out in the Dingle Creek area.

At the public meeting, she recalled an engineer doing a presentation that she found informative relating to the re-routing of the creek banks along with the identification of all of the trees that needed to be cut and/or removed from several properties in the area to allow for the drainage works. Ms. Sonnenberg recalls that at that meeting it seemed that there was a significant amount of public displeasure relating to what she perceived as the damaging nature of the proposed drainage works.

Ms. Sonnenberg recalls Mr. Brunton attending the meeting to discuss the proposed drainage works. Ms. Sonnenberg recalled Mr. Brunton stating that constructing drainage on the north side of Queensway East as opposed to along Dingle Creek represented a viable solution. Ms. Sonnenberg’s concern was that there was a sense that the mistakes made 40 years ago when development started along Queensway East were being perpetuated by the proposed drainage works.

Ms. Sonnenberg indicated that there was a reference to an Option B. It was Ms. Sonnenberg’s understanding that Option B related to Mr. Brunton’s proposal that was going to be investigated and the findings would be reported to the public. Ms. Sonnenberg expressed concern that the engineer, at the public meeting, indicated that no other plans were investigated other than the option to go through Dingle Creek.

During cross-examination, the County asked Ms. Sonnenberg if she was aware of the number of properties assessed as part of the drainage works. Ms. Sonnenberg confirmed that she was not and the County indicated that approximately 500 property owners had been assessed. In response to questions from the County, Ms. Sonnenberg confirmed that she did not file a formal appeal of the decision to proceed with the drainage works.

The County suggested to Ms. Sonnenberg that charts and graphs were prepared by Mr. Dietrich and presented at a public meeting to confirm that Option B, locating that portion of the project along the highway, was explored and found not to be a viable solution. There was also some indication during the County’s cross-examination that Ms. Sonnenberg may have confused the two meetings held by the engineers relating to Option B.

Mr. Courey advised Ms. Sonnenberg that the evidence of the engineers would be that at the 2015 public meeting graphs regarding the highway option, referred to as Option B, were presented to the public and showed that it was not a viable option. Ms. Sonnenberg admitted that it was possible that the presentation on Option B may have occurred and acknowledged that she failed to stay for the entire meeting.

Mr. David Free Testimony

Ms. Joan Free did not appear before the Tribunal and was not present for any part of the hearing. Mr. Free gave testimony under oath in addition to acting as the representative for Ms. Free on the appeal. Mr. Free testified that the drainage works are a matter of deep concern specifically with respect to the identification and investigation of Option B.

Mr. Free argued that the Limitations Act, 2002 applies to this appeal and therefore this matter is statute barred by the application of the Limitations Act.

Mr. Free expressed concern with respect to the petition and argued that the 42 people listed falls significantly below the required percentage of petitioners as set out in Section 4(1) of the Drainage Act and the petition should not have been endorsed or allowed and therefore is invalid.

Mr. Free also expressed concern with respect to the cost of the drainage works being approximately $3.3M with approximately $1M, or 30% of the cost, being allocated to engineering fees. Mr. Free contended that this rate far exceeds the proportion of project engineering fees as suggested by the Professional Engineers of Ontario which he advised was in the order of 15%.

An allegation was made by Mr. Free that in terms of benefit, the landowners in the area of Dingle Creek have yet to see anything in the Engineer’s Report that represents a benefit as opposed to the drainage works being proposed for Queensway East. Mr. Free argued further that there is no benefit received with respect to the proposed drainage works.

Mr. Free indicated that those who signed the petition were “duped” or “tricked” into signing the petition and were given the impression that the drainage works were going to be part of a beautification project. There was some reference to a letter describing an erosion improvement project (municipal drain); however, the Tribunal was not provided with a copy of that letter.

Mr. Free testified that the proposed drainage works would result in the destruction of trees located within a Carolinian forest area and destroy and/or disturb existing habitat areas, which is why, in his opinion, Option B being located along the municipal right-of-way, is the preferred alternative. However, no evidence was provided by Mr. Free to confirm that existing habitat was going to be destroyed and/or disturbed by the proposed drainage works.

Mr. Free identified Option B on a map and confirmed that Mr. Brunton, who is an elected council member of Norfolk County, supported Option B. In Mr. Free’s opinion, Option B provides an appropriate solution. Mr. Free also expressed the opinion that there is no need at all to construct a Municipal Drain in the area.

Mr. Free identified what he expressed as deficiencies in the drawings submitted by Dietrich, specifically: no information with respect to the existing stormwater management system on the north side of Queensway East was considered; and, a stormwater management plan being in place for the Canadian Tire property. Concern was expressed by Mr. Free that the proposed Engineer’s Report is significantly impacting and/or removing the backyards of individual private citizens. Mr. Free advised the Tribunal that there is never water in the stormwater management ponds north of Queensway East contrary to the statements made by Dietrich. In addition, concern was expressed that the proposed drainage works fail to provide any benefit to the landowners in the area.

Mr. Free also alleged that under Section 6(3) of the Drainage Act the municipality should have provided notice of, and conducted, an environmental assessment on the impacts of the drainage works on the Carolinian Forest.

Mr. Free stated his opinion that Municipal Drains should only be constructed to serve agricultural lands and the majority of lands affected by the Dingle Creek Drain are not agricultural. Mr. Free asserted that all drains situated within the watershed have not been identified properly, representing a critical deficiency in the Engineer’s Report. Mr. Free also suggested that the Engineer who signed the Engineer’s Report did not personally compile all data related to the work but relied on information gathered by staff which, Mr. Free stated, conflicts with Section 11 of the Drainage Act that sets out the duties of the Engineer¹.

Mr. Free did not provide the Tribunal with any engineering evidence by an expert qualified to provide such evidence to support an alternative design for the drainage works being proposed in the Engineer’s Report.

During cross-examination of Mr. Free, the County confirmed that Mr. Free is not a property owner and that his wife, Ms. Free, is the property owner whose lands are located in the area of the drainage works being proposed. Mr. Free also confirmed that his wife was not in attendance at the hearing nor was she being called as a witness. Mr. Free indicated that he is a Certified Engineering Technologist who owned an engineering firm that undertook stormwater management studies. The Tribunal notes however that at no time during the hearing did Mr. Free seek to be qualified as an expert to give expert opinion evidence on the Engineer’s Report nor did Mr. Free provide proof of his credentials or list any drainage work projects that he had personally been responsible for completing.

The County confirmed that Mr. Free expressed two grounds of dissatisfaction with the report. First, that the benefit is not commensurate with the cost of the drainage works and that there is no benefit derived from the drainage works being proposed and, second, that the drainage works should be modified on grounds to be stated. In response to questions from the County, Mr. Free agreed that there has been soil erosion along Dingle Creek but did not agree that the proposed drainage works would assist with protection from ongoing bank failure and soil erosion. Mr. Free acknowledged that the Conservation Authority constructed baskets to control erosion in the area along Dingle Creek. When asked whether some of the baskets were failing, Mr. Free failed to respond and instead indicated that some of the baskets have not changed position for twenty years.

The County reviewed with Mr. Free the photographs set out at Tab 1 of Exhibit 5 showing bank failure and/or debris in Dingle Creek. Mr. Free indicated that there appeared to be modest bank failure and/or it has been like that for twenty years. When shown photographs of trees falling into Dingle Creek, Mr. Free’s response was that trees die. When the County then proceeded to show photographs suggesting significant erosion and bank failure Mr. Free disagreed. The County then showed photographs of failing headwalls at various locations along Dingle Creek. Mr. Free indicated that he would not classify it as a failure and instead would classify it as normal wear and tear. Mr. Free indicated that whether or not there was a benefit to correcting the wear and tear would depend on the costs of the correction.

Mr. Free then proceeded to agree with the County that several of the baskets are failing but insisted the only reason to correct or rectify the failing baskets would be to make the area look “pretty”. Mr. Free agreed that the purpose of the baskets was for erosion control but in his opinion there is no erosion currently occurring. However, Mr. Free did confirm that, if the baskets are failing, it is due to erosion but then went on to state that there is no benefit arising from the drainage works being suggested in the Engineer’s Report.

The County then showed Mr. Free a photograph of what appeared to be standing water in Dingle Creek in the spring. Mr. Free agreed that there would be a benefit from the drainage works if flooding is occurring and agreed that there is a problem but that, in his opinion, the water is being directed in the wrong direction and any drainage problems could be resolved by constructing Option B along Queensway East.

Mr. Free alleged that the presentation relating to Option B was not provided at the public meeting. When asked if he had any evidence to dispute the engineer’s evidence that the presentation on Option B was in fact made at the public meeting, Mr. Free indicated that he could not provide an answer.

The County directed Mr. Free to the evidence of Mr. Dietrich showing that, at base flow conditions, most of the flow originates north of Highway No. 3 and that directing the water flow along Highway No. 3 would result in Dingle Creek becoming a dry creek. Mr. Free indicated that, in his opinion, this would be a good result.

The County then directed Mr. Free to Tab 5 of Exhibit 3 being the stormwater management study dated 1986 for Dingle Creek prepared by Simcoe Engineering Group Ltd. for the Town of Simcoe. The County specifically referred to page 3.6 that states:

… However, all previous reports prepared for the Dingle Creek Watershed have identified the desirable natural state in which the Dingle Creek currently exists between Highway #3 and its confluence with the Lynn River. Further, all previous reports have identified the need to retain the Dingle Creek Watercourse in its natural state and to utilize alternative methods of stormwater management control in order to avoid the potential damages with respect to erosion and flooding which would be inflicted on landowners in the downstream Dingle Creek.

Mr. Free agreed with the above statement. However, Mr. Free was of the opinion that Dingle Creek would not dry up because of sheet flow from adjacent properties. Mr. Free did not provide any evidence in support of this statement. When asked, Mr. Free indicated that the 1986 cost estimate for drainage works identified in the area by Simcoe Engineering Report of $1.2M would probably be higher today (approximately 32 years later).

During cross-examination by Mr. Courey on behalf of Dietrich, Mr. Free agreed that the appeal was filed on behalf of his wife Ms. Joan Free and that Ms. Free is the owner of the property located in the area of the proposed drainage works. Mr. Free confirmed that Ms. Free was aware of the hearing and that he had been provided with Ms. Free’s consent to proceed with the hearing and make submissions on her behalf. Mr. Free also confirmed that it was the decision of both of them (Mr. Free and Ms. Free) not to call Ms. Free as a witness and that Mr. Free shares information about the appeal with Ms. Free.

Mr. Courey also confirmed that when Ms. Free received communications about this appeal, she would share them with Mr. Free.

Mr. Free however alleged that he had never received some of the communications from Mr. Courey that expressed concerns with Mr. Free acting as both an advocate and witness at the hearing. Mr. Free confirmed Ms. Free’s email address as of the date of Mr. Courey’s letters. Mr. Courey indicated that he also sent a letter to Ms. Free advising of the importance of having a representative at the hearing in order to avoid Mr. Free acting as both an advocate and witness. Mr. Free confirmed that at no time has he sought out any representation. Mr. Free was also unable to confirm whether or not Ms. Free filed an appeal under Section 54 of the Drainage Act.

Mr. Courey relied on the case of Strobridge v. Strobridge (1994) 1994 CanLII 875 (ON CA), 18 O.R. (3d), 753 (C.A.) to support the statement that it is inappropriate for a person to be both witness and advocate and that any evidence should be brought before the Tribunal by appropriate evidentiary means.

The Tribunal was also advised by Mr. Courey that it appeared that Mr. Free was taping the hearing on his cell phone which was clearly set out in the Tribunal’s opening statement as not being permitted. The Tribunal asked Mr. Free if he was taping the hearing and requested that he give his cell phone to the Tribunal Coordinator to confirm that he was not in fact taping the hearing. The Tribunal Coordinator advised that the cell phone was locked at which time the Tribunal instructed the Coordinator to give the cell phone back to Mr. Free. It is unknown whether or not Mr. Free did in fact record the hearing despite the Tribunal’s opening statement that recording was not permitted and the Rules providing the ability for any individual to make arrangements to have a reporter in attendance at the hearing to transcribe the hearing.

In the course of Mr. Courey’s cross-examination of Mr. Free, Mr. Free became very agitated and, after making disparaging remarks about the Tribunal, walked away from the hearing. In those circumstances, Mr. Courey was unable to complete his cross-examination and the Tribunal was unable to seek clarification of statements made by Mr. Free.

In the absence of any adjournment request by Mr. Free, the hearing continued in his absence.

Mr. Brian Verspagen, P.Eng., The Walter Fedy Partnership

Mr. Verspagen was called by the County to provide expert testimony with respect to the design of the drainage works and was recognized as qualified to give expert opinion.

Mr. Verspagen confirmed that he was retained by Dietrich Engineering Limited to work on drainage related issues in Dingle Creek and assisted with the bank stabilization design. Mr. Verspagen confirmed that he heard the testimony of Mr. Free regarding the appeal by Ms. Free under Section 48 of the Drainage Act and was asked to deal with the issues of benefit, and the consideration of an alternate proposal for the drainage works referred to as Option B along Queensway East.

Mr. Verspagen confirmed that he had taken numerous photographs of the area and between the years of 2006 and present day walked Dingle Creek at least four times and on each occasion took photos of Dingle Creek confirming its ongoing deterioration.

Mr. Verspagen reviewed the various photographs with the Tribunal that showed:

• erosion of backfill material and some evidence of corrosion of the corrugated pipe;
• corrosion of the upstream headwall on the Hender Street crossing resulting in holes in the pipe creating a concern that this area is susceptible to failure;
• debris of trees fallen into the open channel and slumping of channel banks;
• slumping failure at the toe of slope noting that the angles that the trees are tilted at approximately 20 – 30 degrees toward the centerline of the channel;
• images of the creek and the erosion on the outside of bends and significant undercutting where the toe has been lost to erosion;
• erosion around some of the gabion basket erosion protection systems;
• trees that have fallen into the creek as a result ofsevere undercutting of the bank;
• erosion and undercutting of the root structure – according to Mr. Verspagen being a classic example of where there is a dense canopy present that does not support low growth in the area;
• indications that the large tree root structure is not as strong as a grassed bank root structure and that the treed area is susceptible to erosion;
• the gabion baskets are experiencing some undercutting resulting in destabilization of base and creek collapsing onto itself representing a failure;
• erosion is occurring on the outside of the bend;
• toe erosion and failure of the bank slope as it is eroded by the creek flow and material falling down the slope resulting in the deposition of sediment in the creek bottom;
• toe erosion and undercutting outside embankment of creek;
• a text book example of slope failure where it is collapsing onto itself because there is insufficient mass to keep the slope stable;
• the area close to Highway No. 3 illustrates surcharging within the system, demonstrating capacity issues in surcharging of the sewers.

Mr. Verspagen testified that the appropriate manner to deal with the issues identified in the photographs is through bank stabilization measures to provide mass for natural support, and log veins and Newberry weirs to direct flow to the centre of the Dingle Creek. Mr. Verspagen also indicated that he proposed to use root structures, and to add mass along with some rock to stabilize the bank. Mr. Verspagen confirmed that all of the bank stabilization measures being proposed were selected based on natural channel principles as they did not want a “hard scape” as a resolution. Mr. Verspagen indicated that it was important to implement something self-renewing, thereby allowing the natural flow of the creek, which would protect and promote the natural habitat areas.

Mr. Verspagen also indicated that in his professional opinion, the cost of the works are typical of what would be expected on similar projects. Mr. Verspagen confirmed that different options were considered during the design phase, specifically where to take flow to and from. An in-depth analysis utilizing the stormwater management facility situated behind the Swiss Chalet was considered but since the facility is situated upgradient it was not deemed to be a practical solution.

Mr. Verspagen confirmed that Mr. Free’s suggested alternative, Option B, of directing the flow along Highway No. 3 was raised as an alternative and then subsequently discussed at a public session. Mr. Verspagen confirmed that a public meeting was held with respect to Option B at the public meeting in May 2015, and that he was present at that meeting. Mr. Verspagen further confirmed that charts and graphs relating to Option B were presented to the public at the meeting held in May 2015.

Mr. Verspagen testified that data on the drainage area was collected in the following manner:

• the preparation of a hydrologic model to show representative conditions for the watershed;
• application of the US EPA stormwater management model (PC SWMM) that started in the late 1960s and continues today;
• the development of a representation of the watershed using the model rather than simply assuming parameters;
• undertaking a monitoring program with dataloggers, one representative of rural and the other of urban land uses;
• utilizing modelling and calibration and verified information;
• discussions from a local resource who provided local rainfall data of very good quality;
• using rainfall data in addition to the flows to develop real-life simulations; and,
• engaging in monitoring to get a representation of storms including the 25mm storm event, 2-year and 5-year return period storm event.

Mr. Verspagen confirmed that they also took the extra step of engaging the developers of the model to conduct a peer review and based on the recommendations received, updated the model. It was determined that it would be appropriate to use the 5-year storm as an example of what has been experienced in the area.

Mr. Verspagen, using the charts and graphs in Exhibit 5, Tab 3, indicated that approximately 2% of the surface water flow comes from headwater that could be potentially diverted down Highway No. 3. The remainder of the surface water flow is from the commercial areas, specifically the Walmart and Canadian Tire properties. It was Mr. Verspagen’s opinion that it is not feasible to divert the water flow from the residential areas since the flow from these residential areas is negligible. If the major flows from the commercial areas were to be diverted to Highway 3 as recommended in Option B, this would result in a complete loss of water flow in the Dingle Creek during dry periods, and would further result in the loss of any existing habitat in the Dingle Creek. While Mr. Verspagen noted that there are no fish in the Dingle Creek, it was his opinion that redirecting the baseflow as suggested by Option B would be challenging to get regulatory approval from the Conservation Authority and would provide little to no benefit to downstream landowners in terms of mitigating the existing impacts identified.

Mr. Verspagen also provided an order of magnitude cost estimate to divert the flow down Highway 3 (Option B). Mr. Verspagen’s estimate was that ordinarily 750 mm pipe could be installed at $1,200.00/metre, but due to construction in the existing roadway, the cost could run as high as $5,000.00 per metre for a distance of about 500 metres, increasing costs significantly.

Mr. Verspagen confirmed that the charts and graphs relating to Option B were presented at the May 2015 public meeting and that he was directly involved in the preparation of the charts and graphs.

In reviewing Mr. Free’s drawing for the proposed Option B, Mr. Verspagen testified that it was his opinion that Option B did not present a viable option.

In response to questions from the Tribunal, Mr. Verspagen indicated that during each visit to Dingle Creek he had observed a number of different trees falling and noticed that the number of slope failures and the magnitude of the failures were increasing over time. Mr. Verspagen indicated that there have been noticeable changes in bank structure along with an increase in the number of trees falling due to undercutting, and that the increase in the amount of debris is, in his opinion, surprising.

Mr. Verspagen also confirmed that he observed numerous attempts by the residents to mitigate the erosion of the bank including but not limited to:

• a homeowner devising a bank stabilization measure by confining the creek by grouting concrete blocks together;
• another homeowner replacing and resetting concrete blocks resulting in greater velocities of the area; and,
• a homeowner growing manicured grass up to the creek’s edge, among other similar measures being implemented by the private landowners.

Tribunal’s Findings

El-Ahmed Orchard Ltd.

The Tribunal finds that the El-Ahmed Orchard property gets the benefit of a direct connection to the municipal drain regardless of whether or not it chooses to utilize that benefit. The outlet liability charges imposed are similar and consistent with the outlet liability charges in the area.

For these reasons the Tribunal denies the appeal filed by El-Ahmed Orchard.

Ms. Marilyn Gillespie Burleson

The Tribunal reviewed the written information provided by Ms. Burleson and found that the assessment was calculated reasonably and done in a similar manner for all properties. There was no evidence presented to the Tribunal in support of the allegation that the neighbouring properties are removing or thinning the existing woodlots.

For these reasons, the Tribunal denies the appeal filed by Ms. Burleson.

Ms. H. Zorad

The Tribunal reviewed the information submitted by Ms. Zorad and found that the assessment was calculated reasonably and done in a similar manner for all properties.

For these reasons, the Tribunal denies the appeal filed by Ms. Zorad.

Ms. Joan Free

The Tribunal notes that the evidence relating to the design of the drainage works presented by Dietrich Engineering Ltd. and Mr. Verspagen was uncontradicted by the information submitted on behalf of Ms. Free. Both Dietrich Engineering and Mr. Verspagen were qualified as experts and provided the only expert evidence at the hearing. There was no other expert testimony provided in support of Ms. Free’s assertion that what the parties refer to as Option B is the preferred option for the drainage works. In fact, the Tribunal was provided with the expert opinion of Mr. Verspagen who indicated that Option B did not present a feasible alternative and would not likely be approved by the Conservation Authority as Option B would result in the Dingle Creek drying up.

While Mr. Free, on behalf of the Appellant Ms. Joan Free, indicated that no erosion had occurred for approximately twenty years, Mr. Verspagen provided photographic evidence to support his professional opinion that erosion has been, and continues to, occur along Dingle Creek.

The Tribunal finds that Option B is not a viable alternative as it would result in little to no flow in Dingle Creek during dry periods, resulting in a detrimental effect on Dingle Creek and its existing habitat. Option B is also unlikely to be approved by the local Conservation Authority.

In the Tribunal’s opinion, based on the expert evidence provided, the drainage works are necessary and recognize the upstream obligation to carry surface water to a sufficient outlet. The proposed drainage works set out in the Engineer’s Report also recognize the importance of retaining the naturalization and continuous flow of Dingle Creek.

Mr. Free’s allegations that an environmental assessment is required under Section 6(1) of the Drainage Act do not fall within the appeal to the Tribunal under Section 48 of the Drainage Act. An appeal under Section 48 of the Drainage Act provides that any owner of land affected by the drainage works, if dissatisfied with the report of the engineer can appeal to the Tribunal where:

• the benefits to be derived from the drainage works are not commensurate with the estimated costs;
• the drainage works should be modified on grounds to be stated;
• the compensation or allowances provided by the engineer are inadequate or excessive;
• the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed.

Request for Environmental Appraisal

The Tribunal notes that Section 6(1) of the Drainage Act provides that the Conservation Authority, local municipality, or the MNRF may notify the initiating municipality, in this case Norfolk County, that an environmental appraisal of the effects of the drainage works on the area is required. None of the agencies listed in Section 6(1) filed a notice with Norfolk County requiring that an environmental appraisal be conducted and therefore such an appraisal is not required for the drainage works being proposed by the Engineer’s Report.

Application of the Limitations Act

The Appellant, Ms. Free, takes the position that this appeal, and/or the Dingle Creek Drain itself is statute barred by the application of Section 4 of the Limitations Act. Section 4 of the Limitations Act provides that absent a specific statement in the Limitations Act to the contrary, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day upon which the claim was discovered.

Quite simply, the exercise of a statutory right of appeal is not a “claim” to which the Limitations Act, 2002 applies.

Deficiencies of Petition

Ms. Free alleged that the Dingle Creek Drain is statute barred as a result of breaches and deficiencies in the notices and petition requirements. There was no evidence presented by the Appellant, Ms. Free, to the Tribunal indicating that there were deficiencies in the notices and petition requirements relating to the proposed drainage works. The Tribunal notes that the petitions were originally commenced more than ten years ago and as a result the drainage forms may have changed over time. However, the petitions relating to the Dingle Creek Drain reflect the forms that were used at that time, were completed correctly and met the requirements of the Drainage Act.

Comments regarding Mr. Verspagen’s Evidence

The Tribunal notes that Mr. Free, Ms. Free’s representative, decided, on his own initiative, to leave the hearing prior to it being completed and as a result chose not to cross-examine the evidence presented by Mr. Verspagen.

Ms. Verspagen’s evidence stands uncontradicted. Mr. Verspagen provided evidence in response to the issues raised by Mr. Free and was qualified to provide expert opinion evidence to the Tribunal.

Unfair and Unreasonable Process

Mr. Free went to great lengths regarding the fairness of the Tribunal’s process which the Tribunal takes extremely seriously.

The Tribunal, throughout the entire process, accommodated the Appellant’s requests. These included a preliminary motion before the hearing by telephone conference and several motions at the start of the hearing. Despite Mr. Free’s departure in the midst of his cross-examination, the Tribunal, although not obligated to, provided Ms. Free with an opportunity to submit written closing statements. It is normal practice for Ms. Free to provide closing submissions, followed by the closing submissions of the County and Dietrich, then an opportunity for Ms. Free to provide reply submissions. Ms. Free has the burden of presenting her case first as it is her appeal. The Tribunal then allowed the County and Dietrich the opportunity to reply fully to the case being made by Ms. Free. The order of submissions would have been no different had the Appellant’s representative, Mr. Free, stayed to the end of the hearing.

In response to one of the motions brought by Mr. Free, the Tribunal allowed the Appellant to submit new evidence at the hearing, despite it not being provided in advance as clearly required by the Notice of Hearing.

Jurisdiction to Award Costs

The Tribunal’s jurisdiction over drainage appeals flows from the Drainage Act. Sections 98(10) and (11) give the Tribunal wide discretion to determine the costs of “any proceedings” under the Act, regardless if a party requests it or not, “as the Tribunal considers proper”. That wide discretion could very well include “bad conduct” cost awards in appropriate circumstances.

However, additional Tribunal jurisdiction in respect of costs flows from the Statutory Powers Procedure Act (“SPPA”). Section 17.1 of the SPPA gives the Tribunal jurisdiction to order costs of a proceeding where a party’s conduct has been unreasonable, frivolous or vexatious or a party has acted in bad faith and where the Tribunal has created its own rules of procedure governing cost awards. The Tribunal concludes that in addition to its wide jurisdiction to award costs under the Act, the SPPA provides narrower jurisdiction to award costs that focuses on controlling the “bad conduct” of a party.

In the circumstances of this case, the Tribunal concludes that Rule 28 provides a useful guideline to exercise the Tribunal’s costs authority under Section 98(10) of the Drainage Act.

Rule 28.02 provides “that the Tribunal can make a bad conduct costs award at any time during a proceeding.”

Rule 28.04 defines bad conduct as “clearly unreasonable, frivolous or bad faith conduct” and then provides a non-exhaustive list of “bad conduct” examples that includes:

• Failing to attend a hearing;
• Lack of co-operation during pre-hearing proceedings;
• Changing a position without notice;
• Failing to comply with a procedural order;
• Conduct necessitating unnecessary adjournments;
• Failing to present evidence; and,
• Acting disrespectfully.

In an appropriate case, the Tribunal can order costs payable even where no party asks for costs, under the Act, or the SPPA and the Rules.

Section 98(10) of the Drainage Act gives the Tribunal authority to make a cost award against a “party” to a drainage appeal. Further, the SPPA gives the Tribunal authority to make a cost award against a “party”.

The unreasonable, frivolous or vexatious conduct of Mr. Free, being the representative of Ms. Free, includes the following:

• aggressive disruptive behaviour;
• walking out on the hearing during cross-examination;
• making unsupported allegations and derogatory comments throughout the hearing;
• failing to file materials in accordance with the Notice of Hearing;
• failing to provide evidence in support of the allegations being made;
• failing to file materials in accordance with the Tribunal’s order relating to closing submissions;
• refusing to respond to questions during cross-examination;
• disrespectful of the parties, the Tribunal panel, and the Drainage Act process, including procedural rules; and,
• being disrespectful to the panel and other parties to the hearing.

Ms. Free was completely unsuccessful in her appeal to the Tribunal. In the Tribunal’s view the conduct of Mr. Free, as representative of Ms. Free, was unreasonable. Mr. Free’s egregious, aggressive and disruptive behaviour cost the other parties and Tribunal a great deal of time. Mr. Free’s conducted also resulted in increased monetary costs to the parties. The Tribunal considers that the amount of costs being sought by Dietrich Engineering and the County are not unreasonable in the circumstances. The County sought a total of $40,750.01 in actual legal costs and Dietrich Engineering sought a total of $58,108.02 in costs against Ms. Free, this amount being 90% of Dietrich Engineering’s costs of the appeal.

Mr. Free’s position was not reasonable nor supported in the circumstances because, despite being constrained by the provisions of the Drainage Act and being advised by the Tribunal of its jurisdiction under the Drainage Act, Mr. Free continued throughout the hearing, prior to abruptly leaving the hearing without explanation, to: improperly delve into issues relating to private drains not being part of the municipal drain; bringing new materials forward at the last minute without prior notification; making allegations not supported by any factual evidence; and, raising issues outside of the Tribunal’s jurisdiction. By improperly pursuing those issues throughout the hearing, Mr. Free continued to add needlessly to the time and expense of all concerned. There was no reliable evidence tendered to support any of Mr. Free’s allegations.

There is no question that Ms. Free has a statutory right to appeal under the provisions of the Drainage Act. There is also no question that Ms. Free has a right to continue to pursue her appeal. However, all rights are accompanied with balancing responsibilities. The balancing responsibility in these circumstances is that Ms. Free and as a result Mr. Free as her representative, has an obligation to bring forward evidence in support of her allegations, be respectful to other parties including the Tribunal throughout the hearing, and answering questions during cross-examination.

One definition of “frivolous” is “having no sound basis in fact”. The Tribunal would characterize Ms. Free’s concerns, theories and evidence on this appeal as frivolous; that is, without any sound basis in fact.

Despite being advised of the Tribunal’s jurisdiction under the Drainage Act, Mr. Free made numerous allegations without providing evidence in support of such allegations. The Tribunal is cognizant that in some circumstances a cost award would, in effect, have a chilling effect on a statutory right of appeal. In light of all of the circumstances associated with this case and based on the factors reviewed in these reasons, that argument does not dissuade the Tribunal from its conclusion that the County, Mr. Dietrich and Dietrich Engineering Limited are entitled to some costs associated with this appeal.

Prior to proceeding with the appeal and making allegations relating to the application of the Limitations Act, 2002 and arguing the veracity of Option B absent providing any expert evidence, Mr. Free would have been well served to obtain professional advice from a lawyer or drainage engineer about the quality of the construction standard set out in the Engineer’s Report and type of drainage works being proposed. Properly advised about the quality of evidence required in such circumstances, any reasonable appellant would have either retained the appropriate individual(s) or assembled the appropriate documentation to provide evidence in support of the appeal or, alternatively, would have withdrawn the appeal.

Taking into consideration the costs requested by the parties and balancing the right of Ms. Free to pursue her appeal, a cost award of $12,500.00 to the County is reasonable in consideration of the Tribunal’s earlier comments regarding fairness and due process. Further, the Tribunal finds a cost award of $10,000.00 to Dietrich Engineering Limited and Mr. Dietrich is reasonable in the circumstances as absent the allegations made by Ms. Free, Mr. Dietrich and Dietrich Engineering would not otherwise have required legal counsel. The Tribunal carefully considered the costs requested by the County and Dietrich and has balanced Ms. Free’s right to pursue an appeal under the provisions of the Drainage Act in determining the award of costs.

ORDER OF THE TRIBUNAL

Therefore, the Tribunal Orders as follows:

1. The appeal by Ms. Zorad under Section 54 of the Drainage Act is denied;

2. The appeal by Ms. Burleson under Section 54 of the Drainage Act is denied;

3. The appeal by El-Ahmed Orchard Ltd. under Section 54 of the Drainage Act is denied;

4. The appeal by Ms. Free under Section 48 of the Drainage Act is denied;

5. Ms. Free will pay to the County costs in the amount of $12,500.00 and such costs shall be credited to the drain account;

a. Pursuant to Section 61 of the Drainage Act, the cost award against Ms. Free shall have priority lien status in accordance with the provisions of Section 1 of the Municipal Act;

b. The County is at liberty to seek to have the costs awarded added to the tax roll immediately against any land that Ms. Free owns, that is assessed under the drain; and

6. Ms. Free will pay Mr. Dietrich/Dietrich Engineering Limited costs in the amount of $10,000.00.

Dated at London, Ontario this 30^th^ day of May, 2018.

Footnotes

1. 1Section 11 of the Drainage Act states that: the engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.