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:

St. John’s Marsh Drain 2017 (RE) City of Niagara Falls, Ontario

St. John’s Marsh Drain 2017 (RE)

STATUTE:

Drainage Act

HEARING:

September 18, 2018

DATE OF DECISION:

February 7, 2019

001St.John's18

NEUTRAL CITATION:

2019 ONAFRAAT 02

ST. JOHN’S MARSH DRAIN 2017

City of Niagara Falls

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by David White under sections 48 and 54(1) of the Drainage Act with respect to the St. John’s Marsh Drain 2017, in the City of Niagara Falls, Ontario.

Before:

Harold McNeely, Vice-Chair, Dr. Stan Benda, Vice-Chair, and Jim McIntosh, Vice-Chair

Appearances:

A. Melissa Broadhurst, counsel for the Appellant

Monica Ciriello, counsel for the Respondent, the City of Niagara Falls

Shawn Carmichael, witness for the Appellant

David White, Appellant

Nathan Sauer, affected landowner

Oliviero Daniel, affected landowner

John R. Spriet, P. Eng., Spriet Associates, Engineer who prepared the Report

Brandon Widner, P. Eng., Spriet Associates, Engineer who assisted with the Report

Nick Golia, Drainage Superintendent for the City of Niagara Falls, Witness for the Respondent

DECISION OF THE TRIBUNAL

Preliminary Matters

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) originally set this matter down to be heard on September 18, 2018; however, the required Notice of Hearing was not served on all affected landowners before that date. The Tribunal therefore set the matter over to be heard on October 29, 2018. At the September 18, 2018 hearing, the appellant withdrew his Section 54 assessment claim under the Drainage Act (“Act”).

The full hearing was subsequently held in the City of Niagara Falls on October 29, 2018 to hear an appeal only under Section 48 of the Act with respect to the St. John’s Marsh Drain 2017 (“Drain”). The engineer’s report, (“Report”) dated November 1, 2017 for the St. John’s Marsh Drain was prepared by Spriet Associates and was submitted by Mr. John R. Spriet, P. Eng. (“Engineer”).

Bill Matson, Clerk of the City of Niagara Falls, performed the duties of Clerk of the Tribunal.

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. Mr. Nathan Sauer, a landowner within the drainage area, requested and was made a party to the appeal filed. Mr. Oliviero Daniel, a landowner within the drainage area, made a statement to the Tribunal.

There is no dispute that the Appellant has standing. There is no dispute that Spriet Associates was duly appointed under Section 8 of the Act to produce the engineering report, elements of which are the subject of this appeal.

The City of Niagara Falls filed Affidavits of Service, dated October 10, 2018 and October 17, 2018, as proof that all parties had been served with the Notice of Hearing.

Issue

With respect to the Appellant’s lands, the question is: should the drainage works be modified to preclude the abandonment of the drain within the conservation lands and expunge the direction to build the Newbury weir to protect the conservation lands - all with a view of providing Mr. White with better drainage?

Overview

Mr. Spriet, who is the engineer who prepared the report which is subject to this hearing, provided an overview of the project. He was accepted as an expert witness to give evidence in the hearing.

Given that the appellant had withdrawn his appeal under section 54 of the Act, Mr. Spriet was instructed not to go into details on how assessments were generated.

In his overview, Mr. Spriet indicated that the earliest report that he had found on the St. John’s Marsh Drain was one authored by G. Ross dated September 17, 1921.That report had provided for repairs and improvements. A second report dated July 29, 1948 and issued by C.A. Grassie, P. Eng. was also found. That report had called for a clean out of the entire drain.

Mr. Spriet indicated that the drain he designed would outlet in the Municipality of the Town of Fort Erie at the culvert underneath Netherby Road, about 500 meters downstream of the boundary of the City of Niagara Falls. The outlet culvert was being improved as part of a drainage report prepared by N. Morris, P. Eng., dated 2016. Mr. Spriet indicated that this report had been adopted and the work would proceed as soon as reasonably possible.

The drain as designed by Mr. Spriet would connect to the invert of the Netherby Road culvert. The grade he has set is very flat and ties into the existing culvert invert grade at station 0+950, which is at the downstream boundary of the Conservation Authority’s lands.

This report also calls for the abandonment of the existing drain across the Conservation Authority’s lands and the installation of a weir at station 0+950 to maintain water levels in the provincially significant wetland which exists on most of the Conservation Authority’s lands.

Appearances

Shawn Carmichael

The appellant presented Mr. Shawn Carmichael as an expert witness. Mr. Carmichael was a drainage contractor for a number of years and now has obtained his designation as a Drainage Superintendent by successfully completing the course offered by OMAFRA.

The Municipality argued that Mr. Carmichael did not meet the requirements to be considered an expert. Mr. Carmichael has not authored any reports under the Drainage Act and is not a professional engineer. The Municipality questioned his experience and expertise.

The Tribunal allowed Mr. Carmichael to testify as to his opinion and agreed to weigh his testimony based on his expertise.

Mr. Carmichael submitted a report he had prepared and signed. That report referenced topographic information identified and compiled by another firm in 2010. The other firm was not present to provide evidence on the matter and as a result of that information, although not contested, carries little weight.

The Tribunal notes that Mr. Carmichael never was a Drainage Superintendent as that position is recognized in the Act. He has never prepared any drainage reports for municipalities. He has no qualifications formally recognized under the Professional Engineers Act RSO 1990, c. P.28 or the Surveyors Act, RSO 1990, c. S.29. While it is true that experts do not need formal academic qualifications, the Drainage Act only recognizes reports prepared by persons qualified under these two acts. Consequently, the reports he authored for private land owners never had the sanction of the Act.

However, Mr. Carmichael had thorough studies qualified as a Drainage Superintendent, had over 30 years’ work experience, and acquired special knowledge on the subject matter of the opinion, namely drainage of property and the Drainage Act. He had passed a University of Guelph course on the Drainage Act and was certified to be a Drainage Superintendent.

Still, the Tribunal attributes little weight to the evidence of Mr. Carmichael. An expert has a duty to provide unbiased expert opinion to help the finder of fact (in this case, the Tribunal) on a complex or complicated matter, thus creating an exception to the usual rule against hearsay or opinion evidence.

Mr. Carmichael did not present as being neutral. He was fully vested in the position of the Appellant. He overtly and deliberately stepped into the role of advocate. He gave political and social commentary.

Moreover, his evidence dealt with issues outside the compass of the appeal; he addressed lands downstream of the Appellant’s land. Much of his evidence came uncredited from the Engineer’s Report of Gary Russell, dated March 2012.

Admittedly, his motivation was honourable: to help Mr. White. But the motivation of an expert must always be to provide unbiased expert opinion to the finder of fact, not advocate on behalf of the party who retains him (or her).

Appellant, Mr. David White

Mr. White addressed the history of water problems he has had, and the alleged legal and institutional issues he has faced. The Tribunal can neither order penance nor grant absolution. The Tribunal’s focus is the engineering report and the facts that underlie it.

Mr. White provided a passionate review of the process which has led to this hearing. Mr. White testified that he has been formally requesting improvements to the drain for approximately 20 years. During that time the Niagara Peninsula Conservation Authority (“NPCA”) lands have been designated as provincially significant wetlands and no improvements or maintenance have been performed on the drain. Mr. White maintained that the wetlands would not be present or at least would be much smaller had ongoing maintenance been done on the drain.

Mr. White outlined that water which should flow into the drain south of his land now flows across his land and into the wetland. He is not sure if improving the drain downstream will eliminate this problem. Furthermore, Mr. White is concerned the proposed weir will aggravate these problems by contributing to flooding the lands which abut the conservation lands.

Mr. White expressed concern that the municipalities have done nothing to re-instate the drain in 70 years. Mr. White believes the municipality has installed steel culverts inside concrete box culverts without consideration of the 1948 drainage report and at elevations which are above the design grade for the drain.

In summary, Mr. White believes he has suffered damages caused by a lack of maintenance on the St. John’s Marsh Drain and wants his lands drained properly, as they once were. He views the recommendations of the Spriet engineering report - the recommendations of abandoning the ditch within the NPCA lands and building of a weir - as aggravating the problem further, as he believes neither will help drain his lands.

Nathan Sauer

Mr. Nathan Sauer is a landowner within the watershed. His land is upstream of the NPCA lands. He also rents other lands for cash cropping operations, both within and outside the watershed.

Mr. Sauer provided a handout which was accepted as evidence, as well as photographs and a short video. Mr. Sauer testified that he has lost use of his land as well as other land within the watershed because of lack of drainage. He wants the project to proceed as soon as possible and does not agree with abandoning the section proposed for abandonment.

When questioned, Mr. Sauer did agree that a drain branch could be constructed around the NPCA lands which would provide outlet for his property. The branch has not been designed as there is a significant buildup of water preventing a full assessment of the drain, and the field work required for the design will be much easier to complete once the drain is re-instated.

Mr. Oliviero Daniel

Mr. Daniel provided a statement for the benefit of the Tribunal. Mr. Daniel indicated that roads have been improved and ditches created, which in turn has increased the amount of water flowing off the roads and into the drain. Landowners have filled their lands to obtain positive drainage and have also contributed to the problem. The current drain needs to be improved.

Mr. John R. Spriet, P. Eng., Engineer who prepared the Report

Mr. Spriet is the engineer who authored the report. He was accepted as an expert witness at the hearing. The appellant was not appealing allocated drainage costs and the Tribunal directed Mr. Spriet not to get into details about how the costs have been distributed.

Based on evidence presented at the hearing, it is believed that the St. John’s Marsh Drain was originally developed by improving and extending water course over an extended length of time. Mr. Spriet testified that the earliest report on the drain he found was one by G. Ross dated September 17, 1921. That report provided for repairs and improvements. The Engineer referred to a second report dated July 29, 1948 issued by C.A. Grassie, P. Eng., which had called for a clean-out of the entire drain. The other report referenced was one submitted by N. Morris, P.Eng., dated 2016. This report only dealt with approximately one half of the drain, starting at the outlet and moving upstream to Netherby Road. The municipal boundary between the City of Niagara Falls and the Town of Fort Erie is at the center line of Willow Road. The report prepared by Morris in 2016 only deals with the drain from its outlet northerly to Netherby Road some 500 meters south of the municipal boundary.

Mr. Spriet’s testimony was limited to the St. John’s Marsh Drain as well as his observation and opinion. Mr. Spriet indicated that he accepted the information in the K. Smart report (Authored by N. Morris and dated April 2016). He used the culvert under Netherby Road which was referenced on the K. Smart report as the outlet for the section of the St. John’s Marsh Drain that is referenced in his report.

Mr. Spriet confirmed that the existing conditions of the drain are so bad that even in dry weather his firm was unable to find features like the culvert under Willow Road or the location of the drain in the NPCA lands.

Mr. Spriet has taken the invert of a culvert which is near the boundary of the NPCA lands and the invert of the culvert at the upstream end of the drain created by the K. Smart report (Netherby Road) and designed a very flat gradient ditch to run between these two elevations. None of the appellants questioned the design of the drain, if the outlet was sufficient or what could be done to improve the gradient of the drain. The Tribunal did not make an issue of those items.

Mr. Spriet did not consider branch drains for Mr. White or Mr. Sauer, as he believes the existing drain needs to be cleaned out as outlined in his report as well as the report for the downstream lands first.

The Tribunal notes that once a proper outlet is established, as recommended by Mr. Spriet, then petitions could be filed or other methods used to create branch drains if requested and still required at that time by the affected landowners.

Mr. Spriet indicated that the NPCA wanted the water level in the provincially significant wetland maintained. To do so, he recommends abandoning the drain across their lands and installing a Newbury Weir on the drain at station 0+950, which is the location of the previously mentioned culvert. Mr. Spriet believes it is appropriate to abandon that section of the drain since no other land owner has a direct connection to it and no other landowner receives benefit assessment from that section. Mr. Spriet proposes to put the invert of the Newbury Weir 600mm above the invert of the original culvert, which he thinks was installed in the invert of the 1948 drain.

Mr. Spriet indicated that he cannot be certain of the location of the drain on the NPCA lands, as the land is flooded and full of vegetation which has grown up over the last 70 years.

Nick Golia, Drainage Superintendent for the City of Niagara Falls

The last witness called was Mr. Golia, who is the drainage superintendent for the City of Niagara Falls. He filed a letter from NPCA for the Tribunal’s consideration and information.

Mr. Golia indicated that Mr. Spriet had been hired under Section 78 of the Act because the drain required maintenance and the assessment schedules from the 1948 report were out-of-date and needed to be updated.

Mr. Golia is aware of the K. Smart report and the resulting proposed work. Mr. Golia indicated that an agreement was in place between the Town of Fort Erie and the City of Niagara Falls for the work between Netherby Road and Willow Road. That is the work outlined in the report commissioned by the City of Niagara Falls but within the municipal jurisdiction of the Town of Fort Erie.

When questioned, Mr. Golia indicated that he believed Mr. Sauer’s land could be drained by a subsequent connection to the drain. Mr. Golia also stated that the roadside ditch along Willow Road was graded to give Mr. White some relief and once the drainage works outlined in both the Spriet report and the K. Smart report are done on the St. John’s Marsh Drain, he would review the situation along Willow Road.

Findings

It is beyond dispute that Mr. White suffers extensively from water drainage issues to the point of negating any agricultural potential of his lands. Furthermore, the weir will aggravate these problems by contributing to flooding the lands which abut the conservation lands.

The municipalities that are responsible for the St. John’s Marsh Drain have ignored their duty to maintain an important part of their infrastructure for far too many years. This has resulted in environment changes, some of which can be considered positive such as the NPCA wetlands and others which can be considered to have devalued property, such as former farmland becoming marshes. This can be compared to allowing a road to deteriorate to such an extent that not only is it unusable, but in places one cannot even find it.

No explanation was offered as to why both municipalities did not jointly hire an engineer to evaluate and prepare a report for the entire drain. Previous reports were prepared by one firm, analyzing the entire drain to determine a suitable solution given all the facts. One report would eliminate dual procedures for administration, assessments of costs, construction administration, etc. To further postpone the clean-out of the St. John’s Marsh Drain would delay necessary improvements while looking for better solutions which may or may not exist. In an ideal situation, the municipalities would have a report prepared for the entire watershed of the St. John’s Marsh Drain and that report would analyze gradient, capacity and need for drainage, while taking into consideration environmental constraints for provincially significant wetlands. Those things can be accomplished in the future when new reports are required. Subsequent connections were reported to be possible to rectify the appellant’s issues.

The municipality should be aware of Section 74 of the Act which in part states, “…drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes...” and Subections 79(1) and 79(2) which deal with powers to compel repairs and liability for damages. Appeals of this matter would be subject to a separate hearing and are not part of this appeal.

The Tribunal must rely upon expert opinion evidence that is fair, objective and non-partisan. Exercising the Tribunal’s gatekeeper function, the Tribunal prefers the evidence of Mr. Spriet to that of Mr. Carmichael. The Tribunal has no hesitation in accepting Mr. Spriet’s report and his evidence subject to comments concerning the Newbury Weir.

The Spriet report recommended that the drainage ditch wholly within the NPCA lands, known as the 1948 St. John’s Marsh Drain, be abandoned. The evidence of Mr. Spriet was that this drainage ditch cannot be found. It is underwater. He went on to state that this drainage ditch is on the NPCA wetlands and to use his words one would have to wear hip waders and feel around for it, if you could find it.

The Act allows an engineer to make such a recommendation under Section 19. Indeed, under Section 84 of the Act some ¾ of affected landowners could petition to have a ditch abandoned. Here there is only one landowner, the NPCA. Given the decision of the Tribunal concerning the weir and drainage elevations, the Tribunal sees no reason to disturb this recommendation.

Mr. Spriet explained that he had suffered a stroke and that he had difficulty in answering some questions. At the hearing, the Tribunal allowed Brandon Widner, an engineer who participated in the survey of the drains and the preparation of the report to give evidence on certain key elevations or measurements. The Appellant was allowed to cross-examine this witness, if any further clarification was required. The Tribunal disagrees with the Appellant’s suggestion that the stroke suffered by Mr. Spriet rendered him incompetent.

The Tribunal feels compelled to address the following issue even though it is collateral to the main points. Repeatedly in oral and written submissions by counsel for the Appellant and other witnesses, the statement was made that “the Drainage Act supersedes other Acts and comes first”. The statement is purportedly justified by the venerable age or subject matter of the Drainage Act. This is incorrect. Only the Constitution supersedes other acts or conversely phrased, all acts must be consistent with the Constitution. As for the situation between acts, any Tribunal or Board must find a way to harmonize conflicting legislation. Conflicting legislation typically is defined as compliance with one act means breaching another. Nothing of the sort is happening on these facts.

The Tribunal recognizes that the Respondent, the City of Niagara Falls, made complaints cited in its written closing argument, at paragraph 57. The Appellant caused numerous delays including in filing his closing submissions. On the other hand, the failure of the Respondent to notify the affected landowners necessitated an adjournment from September 18, 2018 to October 29, 2018. Despite the fact there is statutory authority under Subsections 98(10)(11) of the Act for costs, nothing on these facts is sufficiently egregious to justify such an award in whole or in part against either party.

Order of the Tribunal

Considering the above-mentioned findings, the Tribunal thereby makes the following order:

1. That the appeal of David White be dismissed in part.

2. That the report of the engineer Mr. John Spriet for the St. John’s Marsh Drain dated November 1, 2017 be amended by the removal of the Newbury Weir so that the termination point of the drain at station 0+950 is as close as possible to the line and elevation as established in 1948.

3. That the St. John’s Marsh Drain upstream of station 0+950 in the report of John Spriet dated November 1, 2017 be abandoned as recommended.

4. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works and such costs shall include the Engineer’s fees and expenses for the preparation and attendance at the Tribunal hearing as well as the modification to the report.

5. There shall be no other Order as to costs. All parties shall be responsible for their own costs.

Dated at Ottawa, Ontario this 7^th^ day of February, 2019.