Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^nd Floor NW

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:

Workman Municipal Drain 2018 (RE) Municipality of Morris-Turnberry, Ontario

Workman Municipal Drain 2018 (RE)

STATUTE:

Drainage Act

HEARING:

September 26, 2018

DATE OF DECISION:

October 12, 2018

009Workman18

NEUTRAL CITATION:

2018 ONAFRAAT 13

WORKMAN MUNICIPAL DRAIN 2018

Municipality of Morris-Turnberry

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 Patrick O’Neill under section 54(1) of the Drainage Act with respect to the Workman Municipal Drain 2018, in the Municipality of Morris-Turnberry, Ontario.

Before:

John O’Kane, Vice-Chair, Jim McIntosh, Vice-Chair and Arnold Strub, Member

Appearances:

Patrick O’Neill, Appellant

Brad Bunke, P. Eng., Engineer who prepared the Report

Nancy Michie, Clerk of the Tribunal

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of Morris-Turnberry on September 26, 2018 of Patrick O’Neill’s appeal under Section 54 of the Drainage Act (“Act”) with respect to the Workman Municipal Drain 2018 (the “Workman Municipal Drain”).

The Workman Municipal Drain was detailed in an engineer’s report, (“Report”) dated March 9, 2018 prepared by GM BluePlan Engineering Limited and submitted by Mr. Brad Bunke, P. Eng. (“Engineer”).

Nancy Michie, Administrator Clerk-Treasurer of the Municipality of Morris-Turnberry (the “Municipality”), 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. No landowners within the drainage area requested status at the hearing.

The Municipality filed an Affidavit of Service, dated September 21, 2018, proving that all parties had been served with the Notice of Hearing.

The Tribunal panel regularly uses a digital recording device to supplement the panel’s bench notes. No transcript is prepared from the recording, no copy of the recording is given to anyone but the panel members. The recording is not kept by Tribunal staff. These recording practices were explained to the parties at the start of the hearing. Mr. O’Neill expressed two concerns. The first was that it was unfair that the Tribunal panel have a recording and that he did not. The second was that he had hearing difficulties.

The Tribunal panel explained to Mr. O’Neill that under Rule 17 of the Rules of Practice and Procedure he could seek authorization to record the hearing in these circumstances. Mr. O’Neill agreed that he wished to receive such authorization. The Tribunal panel ruled that given the exceptional circumstances of Mr. O’Neill’s hearing impairment, he could record the hearing; however, he did not have a phone or other device that had a recording function. In these exceptional circumstances, and to ensure that Mr. O’Neill’s concerns over fairness and his hearing impairment were addressed, the Tribunal panel ruled that it would provide a copy of its digital recording to Mr. O’Neill. To ensure fairness to both parties, the Tribunal panel provided a copy of the digital recording of the hearing to both Mr. O’Neill and the Municipality.

Overview

The Workman Municipal Drain was originally adopted by the Municipality based on a report prepared by Maitland Engineering Services dated 1976.

The watershed area comprises eighteen properties totaling 455 acres and the drain outlets into the Maitland River. The original main drain works commenced in the south part of Lot 25, Morris Concession (“Con”) 6 as an open drain (ditch) and then continued in a northerly direction across Lots 24, 23 and 22 to the easterly boundary of Lot 21. The drain then became a closed tile drain as it continued northerly across Lot 21 then continued across Morris Road and then crossed the south-west corner of Lot 21, Morris Con 5, then crossed Lot 20, Morris Con 5 to the westerly boundary of Lot 20, where the main drain again became an open ditch to the outlet.

The current reported condition of the watershed area upstream of the closed tile portion that begins at the easterly boundary of Lot 21, Morris Con 6 is as largely wetlands with no defined drainage path.

The existing drain was designed to accommodate a 12.5 mm drainage coefficient. The drainage coefficient means the water that the drain system can remove from the watershed area in a 24-hour period. The main drain is comprised of a closed section of tile ranging in size from 200 mm to 525 mm as well as an open section of the drain at the upstream end. The closed section exists in the actively farmed area and the open drain section is in an area which has not been cleared or actively farmed. This non-cleared area was referred to as wetlands throughout the hearing although no evidence has been provided to determine if those lands are designated as wetlands.

On October 5, 2016, the Municipality appointed GM BluePlan Engineering Limited to prepare a report under section 78 of the Act. Under the Act, the Municipality is responsible for maintaining and repairing the Workman Municipal Drain since its construction pursuant to the 1976 report. Section 78 of the Act gives the Municipality a mechanism to appoint an engineer to report on, among other projects, improving or altering the drainage works.

The genesis of the Municipality’s appointment of GM BluePlan Engineering Limited was a petition for drainage improvements made by the owner of Lots 21 and 20, Morris Con 5 who had been experiencing periodic ponding and failures (“blowouts”) in the closed tile portions, and who wished to improve the drainage works to accommodate installing additional systematic tile drainage.

The Workman Municipal Drain 2018 Report recommended the following design/works:

• 38 mm in 24-hour drainage coefficient
• Replacing the closed portion of the main drain
• 525 mm diameter concrete pipes in the upstream portion – Lot 21, Con 6
• 600 mm diameter concrete pipes in the lower portion – Lot 21, Con 6
• Twin 600 mm diameter concrete pipes across Lots 21, Con 5 and Lot 20, Con 5
• Replacing various structures within the closed portions to accommodate new tiles
• No work on the open portions of the drain
• No work on any of the branch drain portions

The estimated total cost for the works, including engineering and allowances, was $272,320.00.

The Issues and Tribunal Jurisdiction

The Appellant Patrick O’Neill raised concerns about the following issues:

1. The need for the drainage works;
2. The design of the drainage works;
3. The impact of the drainage works on the wetland areas;
4. The cost of the drainage works;
5. The benefit/outlet assessments made in respect of his property;
6. Access to his property for the drainage works.

The issues numbered above from 1 through 4 all are matters addressed under section 48 of the Act. Section 48 gives any landowner affected by drainage works a right of appeal to the Tribunal if dissatisfied with the engineer’s report on the grounds of the costs-benefits of the works; if dissatisfied with the design of the works; or if dissatisfied with the compensation or allowances provided. However, Patrick O’Neill did not appeal to the Tribunal under section 48 of the Act.

Patrick O’Neill appealed the decision of the Court of Revision related to the benefit/outlet assessments made in respect of his property to the Tribunal under section 54 of the Act.

The time set out in the Act to appeal under section 48 and section 54 are different and unfortunately for Patrick O’Neill, when he made his appeal from the decision of the Court of Revision, he was past the time to appeal under section 48.

As there was no section 48 appeal before the Tribunal, the Tribunal has no jurisdiction to consider the issues raised by Mr. O’Neill and numbered as 1 to 4 above.

The issue numbered as 6 above related to access to property required for drainage works is not the proper subject of an appeal to the Tribunal under either section 48 or section 54 of the Act. The Tribunal has no jurisdiction to make any findings in respect of Mr. O’Neill’s concerns raised about access across his property.

The only issue properly before the Tribunal under Mr. O’Neill’s section 54 appeal is the benefit/outlet assessment made by the Engineer in the Report. Accordingly, the only issue the Tribunal has jurisdiction to consider and to determine is the assessments made by the Engineer.

The Evidence

Patrick O`Neill was self-represented and was the sole witness for the Appellant’s case.

Mr. O’Neill’s lands are primarily croplands growing wheat, soybeans and corn. Mr. O’Neill’s fields are all systematically tile drained.

Mr. O’Neill testified that if there is a bigger diameter drain pipe installed, it will drain more of the wetlands that are upstream of his property. Mr. O’Neill offered no evidence to support that statement and when asked about it he asserted it was common sense that a larger pipe diameter would drain more water.

He did confirm that there was some ponding upstream from his property after a big rain. He described the catch basin at the easterly limit of his lands where the closed tile portion starts and that any ponding either seeps into the ground or flows into the catch basin and that the drain works perfectly and it should be left alone.

He also testified that he has not experienced any failures of the drain (blowouts) on his property and that he found that the drain ran fine during the two years that he had owned his lands.

He testified that if the downstream landowners were experiencing drainage issues, the works should start north of Morris Road.

On the issue of the assessments, Mr. O’Neill testified that his costs are too high in relation to other land owners and provided examples of his concern. He pointed out that his 67 acres are assessed at a higher rate than the 93 acres of the landowner downstream from him.

Mr. O’Neill’s other issue in respect of the assessments was that the wetlands upstream from his property would now be serviced with a larger pipe for outlet and therefore would have an improved outlet and should be assessed higher.

Mr. O’Neill did not provide any evidence about alternative assessments or any alternative methodology to determine or alter the assessments.

The Engineer testified as to how benefit was assessed under sections 22 and 26 of the Act as well as how allowances for crop damage had been deterimined. After adjustments for those benefits and allowances had been made, the balance of the cost was distributed between the properties in the watershed as outlet assessment.

The Engineer testified that he had used the modified Todgham method to distribute the outlet assessment and explained how that had been done. He offered a simplified explanation of that method as: “the more use a property makes of the drain, the higher that property’s assessment”. He also explained how land uses were considered in the Todgham method and how less permeable lands, like roadways, are treated as larger parcels for assessment purposes and more permeable lands, like wetlands, are treated as smaller parcels for assessment purposes. He explained how those land use adjustments or “factors” impacted the assessments.

He was asked about why larger property areas downstream from Mr. O’Neill’s property were assessed at a lower rate than the O’Neill property. He explained that Mr. O’Neill’s property, being at the upstream portion of the drain, would use more of the drain than for example, those downstream properties north of Morris Road. He suggested that the O’Neill property would use 100% of the improved drain, whereas the downstream properties would only use 50% and that this accounted for the differences in the assessments.

The Engineer testified that he believed that his assessments were fair and equitable to all the properties in the watershed. He pointed out that in the original 1976 Workman Drain, the lands currently owned by Patrick O’Neill had been assessed 28% of the project costs and that in his Report for the 2018 improvements, Mr. O’Neill’s property was assessed 25% of the improvement costs.

In response to questions from the Tribunal, the Engineer provided additional details as to how he arrived at equivalent areas as well as how each owner was assessed costs for the portion of the drain that was used by them. He also indicated that the wetland area upstream of the O’Neill lands would not have improved outlet because the new catch basin would be placed at the same elevation as the one being replaced and would therefore not accept additional flow.

Analysis and Findings

Section 11 of the Act sets out the Engineer’s duty to apply his or her best skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person to the tasks assigned to them, including developing an apportionment of the costs of any drainage works.

The Appellant did not call any evidence to suggest the Engineer had not fulfilled that statutory duty in respect of the development of the assessments.

The Engineer testified that in developing the assessments, he did so in a manner that was fair and equitable among the properties in the watershed. That evidence was not challenged. There was no evidence called to the contrary. Accordingly, that evidence was uncontradicted and the Tribunal accepts that the Engineer’s assessments are fair and equitable.

The Appellant did not give any evidence about any alternate method to apportion the costs that would be fairer or more equitable among the properties in the watershed.

The only evidence about any assessment methodology came from the Engineer. He explained that he used a modified Todgham method to develop the assessments. The Tribunal takes notice that the Todgham method is a well known and accepted method to determine assessments and has been previously accepted as reasonable, fair and appropriate in many municipal drain decisions. That does not mean that the Todgham method is the only acceptable method for determining assessments. However, in this case, the Appellant did not provide any evidence of any alternate assessment method.

The Engineer testified that comparing the original construction assessment with the proposed improvement assessment, that comparison was favourable to the Appellant’s property (28% v. 25%, respectively. Section 34 of the Act allows the Engineer to take those previous assessments into consideration when developing the assessment.

The Appellant did not provide any evidence about why the comparison of the historic assessment on his property compared with the current assessment was inappropriate, inequitable or unfair.

The comparison of the historic assessments with the current assessments further reinforces the Engineer’s evidence that his assessment method was fair and equitable.

Part of the Appellant’s theory was that the drain improvements would give a greater outlet to the upstream wetlands and that accordingly, those lands would benefit more than his land and therefore should pay a greater assessment and that he should pay less.

The Engineer testified that the upstream wetlands would not benefit from a greater outlet than in the original drainage works in the 1976 report because the catch basin inlet at the easterly boundary of the Appellant’s property at approximately Station 1+679 would remain at the same elevation and be of similar size and accordingly would not accept more water. However, the Report plans do not indicate details on that catch basin. That catch basin will provide the inlet for the upstream open ditch into the closed drain. In order that those upstream wetlands not have an improved outlet and therefore not be liable for increased assessment, an inlet control device will need to be shown on the plans to ensure assessment “status quo” in respect of that upstream wetland.

Based on the evidence presented, the Tribunal concludes that the engineer used standard acceptable methods to determine assessment of costs and did so in a fair, reasonable and transparent manner.

Costs

The Municipality argued that Mr. O’Neill’s appeal was frivolous and the Municipality asked the Tribunal to make a cost award against Mr. O’Neill.

The Tribunal is not satisfied that in these circumstances there was any evidence to support a finding that Mr. O’Neill’s appeal was frivolous.

Accordingly, in these circumstances the Tribunal declines to make a cost award against Mr. O’Neill.

Order of the Tribunal

The Tribunal thereby makes the following orders:

1. The Report will be amended to reflect an inlet control device will be included in the catch basin located at approximately Station 1+679.
2. The assessments in the Report are confirmed.
3. The appeal is otherwise dismissed.
4. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works.
5. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Collingwood, Ontario this 12^th day of October, 2018.