Agriculture, Food and Rural Affairs Appeal Tribunal

Appeal: Filsinger Municipal Drain (RE), Municipality of South Bruce Statute: Drainage Act Hearing: November 12, 13 and 14, 2019 Date of Decision: December 16, 2019 File No.: 001Filsinger19 Neutral Citation: 2019 ONAFRAAT 20

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 Mark Goetz, Dawn Kennedy, William Goetz, Patricia Goetz and Tyson Kraemer of Mildmay, Ontario under Sections 48 and 54 of the Drainage Act and John Weiler of Kitchener, Ontario under section 54 of the Drainage Act, with respect to the Filsinger Municipal Drain in the Municipality of South Bruce.

Before: Glenn Walker Vice-Chair, Andy McBride, Vice-Chair, and Brandi Neil, Vice-Chair

Appearances: Valerie M’Garry, Counsel for the Appellants Mark Goetz, Dawn Kennedy, William Goetz and Patricia Goetz Mark Goetz, Appellant Tyson Kraemer, Appellant Jeremy Ellis, Real Estate Agent, witness for the appellant Tyson Kraemer John Kuntze, P. Eng., witness for the Appellants Mark Goetz, Dawn Kennedy, William Goetz and Patricia Goetz Paul Courey, counsel for the Municipality of South Bruce Stephen Brickman, P. Eng., Dietrich Engineering Limited, witness and co-author of the Engineer’s Report Greg Nancekivell, C.E.T., Project Manager, Dietrich Engineering Limited, witness George Spence, affected landowner

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing at Teeswater in the Municipality of South Bruce, in the County of Bruce on November 12, 13 and 14, 2019 to hear appeals by Mark Goetz and Dawn Kennedy, William and Patricia Goetz and Tyson Kraemer under Sections 48 and 54 of the Drainage Act (“Act”) and John Weiler under section 54 of the Act regarding the Filsinger Municipal Drain 2018 (“Filsinger Drain”) in the Municipality of South Bruce (“South Bruce”).

Background

In 1970 the former Township of Carrick (now amalgamated into the Municipality of South Bruce) authorized the construction of a municipal drain pursuant to an Engineer’s Report, dated January 7, 1970, prepared by William J. Mannerow, P. Eng. to be known as the Filsinger Drainage Works (“1970 Drain”). On September 2, 2014 George Spence, a landowner within the watershed of the 1970 Drain, requested improvements to the 1970 Drain in accordance with subsection 78(1) of the Act. Mr. Spence’s concerns were that the present drain was not working properly due to obstructions at the outlet into the private open system and that the culvert under Ellen Street was in poor condition and sloping the wrong way by 8 inches.

South Bruce passed a resolution in support of the Spence request on January 27, 2015 and appointed Dietrich Engineering Limited to prepare a report under section 78 of the Act. On-site meetings were conducted on May 7, 2015 and February 7, 2017 and information meetings were held on February 7, 2017 and March 29, 2018. The Engineer’s Report (“Report”), dated September 12, 2018, was co-authored by William J. Dietrich, P. Eng. and Stephen Brickman, P. Eng. and was adopted by South Bruce provisional By-law #2018-67 on December 18, 2018.

The Sitting of the Court of Revision took place on March 5, 2019 at which time appeals to the Court by William and Patricia Goetz, Mark Goetz and Dawn Kennedy, Tyson Kraemer and six other landowners were all dismissed. There was no appeal to the Court of Revision by John Weiler.

Original 1970 Drain

The 1970 Report provided for the construction of a closed drainage system from the line between Lots 9 and 10, Concession 8 in the former Township of Carrick downstream to where the drain discharged into a private open system immediately north of John Street in the hamlet of Mildmay. Pipe sizes ranged from 350 mm diameter to 450 mm diameter. The private open system or ditch is for the most part located on the lands owned by Tyson Kraemer and is known locally as the “duck pond”. Part of the closed drain crosses lots in Mildmay presently owned by Robert Foreman.

A section 78 report for the Filsinger Drain was previously prepared by Gamsby and Mannerow Limited in 2003, but the municipality decided not to proceed with it due to issues raised by landowners and Council.

The Engineer’s Findings

The Engineer made the following findings in his Report:

1. The existing Filsinger Drain is in a poor state of repair and is neither of sufficient capacity nor depth to drain the surrounding and upstream lands within the watershed at today’s standards of drainage.

2. Accumulated rainfall collects on Mr. Spence’s property and remains in place for excessive durations, causing crop losses and impairing the ability to conduct normal farming practices.

3. The existing Filsinger Drain alignment interferes with future plans for the Robert Foreman property in Mildmay.

4. The existing Filsinger Drain outlets into a private watercourse on the north side of John Street and has a history of becoming obstructed.

5. The existing natural watercourse downstream of Absalom Street is of sufficient depth and capacity to accommodate the Filsinger Drain.

6. Along with the Filsinger Drain, several storm sewers outlet into the existing natural watercourse in Mildmay.

7. A municipal drain is proposed (the Borth-Goetz Drain) to convey flows from the south side of Concession Road 8 West to a natural watercourse to the north. This proposed municipal drain removes a significant watershed area to the east of the Filsinger Drain which would historically contribute flow to the Filsinger Drain.

Proposed New Watershed

The current Engineer’s Report includes three changes to the watershed established in the 1970 Drain. The first change removes a large portion of the north half of Lot 8, Concession 8 from the watershed, as these lands are now more properly included in the watershed of the new Borth-Goetz Drain completed in 2019. The second is a small change in the east part of the watershed that was not specifically identified in the evidence. The third change is the addition of the balance of the south part of Lot 9, Concession 8, owned by W. and P. Goetz and the addition of part of the north halves of Lots 8 and 9, Concession 7 belonging to F. Reinhart and M. Kraemer.

Proposed Drainage Work

In the Report, the Engineer recommends that a new drainage system be constructed from the upstream end of the 1970 Drain consisting of a closed and open drain. The closed drainage system would include the installation of 654 metres of 600 mm to 750 mm diameter pipe. It would be installed using storm sewer pipe on an alignment that is conducive to the future plans for the Robert Foreman property and the additional cost for this pipe and re-alignment has been assessed to the Foreman property as a special benefit. The open portion of the drain would continue past the present outlet, over the lands of Tyson Kraemer, through a new culvert under Absalom Street and outlet into the natural watercourse on the lands of B. Herman. The proposed new drain would have greater capacity and would be deeper than the 1970 Drain, which would be abandoned and destroyed. The total estimated project costs are $508,400.00.

Preliminary Matters

Ms. M’Garry raised the issue of there being two engineers who authored and signed the Report. It was agreed that Mr. Brickman would present the overview of the report and testify on behalf of the Respondent municipality.

It was also agreed that the Tribunal would bifurcate the proceedings and hear the section 48 appeals together and then continue with the section 54 appeals.

The Evidence of Mark Goetz - Section 48 Appeal

Mark Goetz spoke on behalf of himself, his spouse, Dawn Kennedy, and his parents, William and Patricia Goetz.

Mr. Goetz testified as to the following:

• He is the Deputy Mayor of the Municipality of South Bruce.
• He explained that he and his neighbours petitioned for a new drain due to flooding problems on his farm resulting in the new Borth-Goetz Drain that was completed in 2019.
• The new Borth-Goetz Drain will reduce the flow into the Filsinger Drain.
• He does not contest the removal of a portion of his farm from the watershed of the Filsinger Drain as it is now part of the watershed for the new drain.
• He takes issue, however, with the inclusion in the watershed of the south part of Lot 9, Concession 8 and part of the north halves of Lots 8 and 9, Concession 7.
• He states that it is impossible for these lands to drain to the north because of a depression and that they should drain into a watercourse to the south of the proposed watershed.
• He believes that since the Report was requested pursuant to section 78 of the Act, it should have only dealt with those issues raised by Mr. Spence in his request.
• His position is that the cost of the drain is excessive and that there are less expensive alternatives. In his opinion, the drain has been designed with a greater capacity than is necessary in these circumstances.
• He feels that he and his parents acquire no more benefit but a lot more cost.
• He asks the Tribunal to set aside this report and only authorize the work dealing with the original issues raised by Mr. Spence in his request.
• He further suggests that once those limited downstream improvements are made and the effect of the Borth-Goetz Drain is understood, the balance of the project be postponed to see if the problems with the Filsinger Drain abate and if they do not, then continue with the remaining work.
• He would also be in favour of having the drain continue to the outlet as a closed drain.

The Evidence of Tyson Kraemer - Section 48 Appeal

Tyson Kraemer gave the following testimony to the Tribunal:

• He purchased four adjoining vacant lots in Mildmay in 2017 for $60,000 and, in addition, he paid realty tax arrears of about $5,000 and the vendor’s closing costs for a total of approximately $66,000.
• Part of his lands are in a residential zone and part are in an environmental protection zone.
• He has since built a new home in the northeast corner of the property.
• He feels that the right of way allowance awarded to him in the Report is insufficient.
• He feels that the $35,000 per hectare for agricultural land used by the Engineer to calculate the allowance is incorrect as this is residential land.
• His land was assessed at $67,000 before the construction of the new home.
• He believes that he will lose some trees on the ditch bank as a result of the work to be done.
• He is requesting an allowance of $55,000 based on the current value of his property as established in the Opinion of Value of the witness Jeremy Ellis.
• He would also like to see the open portion of the drain on his property closed in.
• He thinks that the open drain is a safety issue and that closing it in would keep people from dumping there.

The Evidence of Jeremy Ellis – Tyson Kraemer Section 48 Appeal

Jeremy Ellis, a real estate sales representative, gave evidence on behalf of Tyson Kraemer. He is not a licensed appraiser but tendered an Opinion of Value for the property of Tyson Kraemer citing a fair market value selling range for the Tyson Kraemer property, excluding the house, as being between $115,000 and $125,000 as of March 19, 2019. He stated that there has been a 16% increase in land prices this year in this area. He advised that he was not aware that part of the property is zoned environmental protection.

His basis for providing those values was somewhat flawed as it was based largely on comparable listings for properties that had not yet sold. In other words, he used asking prices and not sale prices. He was unable to provide a similar property comparison that had sold in the value range he was suggesting.

The Evidence of Stephen Brickman P. Eng. – Section 48 Appeals

Mr. Brickman gave the following evidence:

• He is a professional engineer having been with Dietrich Engineering Limited since 2012. During that time, he has authored more than 20 drainage reports and assisted in the preparation of over 150 such reports.
• He is the primary author of the Report and worked with both William Dietrich and Gregory Nancekivell of Dietrich Engineering Limited in producing the Report.
• He described the proposed drainage work as set out in the Report.
• He was aware that the Borth-Goetz Drainage work was in progress and co-ordinated with the Burnside engineer on the project, sharing data and ensuring that the watersheds did not overlap.
• The topography of the enlarged southern portion of the watershed was assessed by drone once and by detailed GPS surveying twice, and he is satisfied that the topography dictates that it be included in the current watershed.
• The entire 1970 drain is in poor condition and will be replaced. The 1970 drain shall be abandoned and destroyed.
• The new drain has been designed with a greater capacity.
• The existing drain does not have sufficient outlet but the new one will.
• The new drain will be approximately two feet deeper than the existing drain upstream and about three feet deeper at the downstream end of the closed portion.
• Mr. Foreman desires to develop his lands, so the closed portion of the drain that crosses his property will be installed with storm sewer pipe on an alignment that is conducive to his future plans, and that land will be charged a special benefit for the additional cost to do so.
• The open drain, sometimes called the duck pond, on the Tyson Kraemer property is currently not part of the municipal drain, but by moving the outlet further downstream, to the other side of Absalom Street, it will become part of the open portion of the new drain and will have the benefits of being part of a municipal drain.
• This part of the open drain will have a “bottom-only cleanout” and will be protected with an erosion blanket and hydroseeding. Accordingly, the larger trees will remain untouched.
• He believes that Tyson Kraemer asked that the drain on his property be closed in at the February 7, 2017 meeting but later changed his mind.
• He does not agree with the “wait and see” approach proposed by Mark Goetz and, if that approach was used, a new report would have to be prepared for the second phase.
• He believes that in preparing a section 78 report, an engineer has the duty and authority to investigate the entire existing drain and replace all or part of the existing drain, and/or take it to a new outlet, as may be required.

After submissions from the parties on the Section 48 appeals, the Tribunal proceeded to hear evidence and submissions with respect to the Section 54 appeals. Tyson Kraemer withdrew his Section 54 appeal. The appeal filed by John Weiler under Section 54 of the Act was treated as being a nullity as Mr. Weiler had not appealed to the Court of Revision; therefore, there was no decision of the Court of Revision from which to appeal.

The Evidence of John Kuntze P.Eng.- Section 54 Appeal

Mr. Kuntze, a professional engineer with 42 years of experience, was accepted by the Tribunal to give expert opinion evidence on the calculation of assessments in drainage reports. He gave evidence as follows:

• He was retained to give evidence by Mark Goetz and Dawn Kennedy and William and Patricia Goetz with respect to assessments only.
• He found the assessments for the open portion of the drain to be reasonable.
• He also agreed with the assessments for John and Ellen Streets.
• He also agreed with the special assessment to the Foreman property.
• On the balance of the closed drain, he calculated the benefit outlet ratio as 50/50, which he felt was not fair, and he recommended a 60/40 split.
• Too much onus has been placed on the upper reaches of the drain.
• Using a modified Todgham method, he submitted his own suggested assessment calculations for construction of the closed drain.
• Mr. Kuntze also disagreed with the Maintenance Assessment Schedules for the closed portion of the drain and submitted his own suggested schedules in this regard.

The Evidence of Gregory Nancekivell– Section 54 Appeals

Mr. Nancekivell, who is a Certified Engineering Technologist with Dietrich Engineering Limited and the project manager for this drain project, gave evidence on behalf of the municipality with respect to the calculations of the assessments in the Report as follows:

• He explained the process for reaching the assessments in the Report.
• Each of he, Stephen Brickman and William Dietrich did a calculation of their own assessments using the Todgham Method and then met to come to a consensus as to the assessments to use in the Report.

After receiving submissions from the parties on the Section 54 appeals, the Tribunal also accepted evidence from George Spence, the landowner who requested the Section 78 report. He believes that a new drain is in order as no lesser drainage work will fix the problem, as the 1970 Drain is too shallow, too small, has too little slope and is in a deteriorated condition. The Tribunal also accepted a letter from Robert Foreman indicating that he is in favour of this project.

Discussion and Findings

Section 48 Appeals of Mark Goetz, Dawn Kennedy, William and Patricia Goetz

Counsel for the appellants referred the Tribunal to the case of Kilberg v. Wallace (Township), 1988 ONDR 1, a decision of the Ontario Drainage Referee, reached after a hearing conducted pursuant to Section 47 of the Act in which the appellant requested that the Section 78 report be set aside. Section 47 provides that a landowner may appeal to the Referee where he/she is dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of the Act.

The Court of the Drainage Referee found that the engineer’s report was in excess of jurisdiction as the work proposed to be done exceeded the work permitted under a Section 78 report and the municipality should have proceeded by way of a Section 4 petition. The permitted projects for a Section 78 report are now set out in Subsection 78(1.1).

No appeal to the Referee has been taken pursuant to Section 47 with respect to this Report to the best of the knowledge of the Tribunal, and the time for filing such an appeal has long passed. The Tribunal has no authority to rule on whether the report complies with the Act, as this is an issue reserved to the Referee. In the absence of an Order or ruling from the Referee, we must assume that this Report is validly made under Section 78 and proceed accordingly.

The Tribunal accepts the watershed proposed in the Report. There appears to be no contention with respect to the first two changes enumerated above. Concerning the southern portion of the proposed watershed covering part of Lot 9, Concession 8 and parts of Lots 8 and 9, Concession 7, the Engineer relied on drone aerial photography of the area and detailed GPS surveying of the area which was undertaken twice. All this work indicated that the boundary as shown on the plan in the report is correct. No expert evidence to the contrary was provided by the Appellants. Neither of the two landowners in Concession 7, who are most affected by this alteration of the boundary from the 1970 report, appealed to the Tribunal, and we must assume that they agree with the new boundary.

The Tribunal accepts the evidence of the Engineer and George Spence as to the poor condition of the 1970 Drain. It is 49 years old and there were several requests for improvements made at the on-site meetings especially as regards the present outlet. The existing drain was installed using a drainage coefficient of approximately 0.33 inches in 24 hours, whereas the current minimum standard drainage coefficient is 1.0 inches in 24 hours.

In carrying out his obligations as set out in Section 11 of the Act, the Engineer, in our opinion, properly concluded that the existing drain “is in a poor state of repair and is neither of sufficient capacity nor depth to drain the surrounding and upstream lands within the watershed at today’s standards of drainage”. We also find that the present outlet is insufficient.

Although the Appellants argue that the benefits are not commensurate with the costs, there was no evidence provided in this regard. The Appellants retained John Kuntze, P. Eng. to review the assessment calculations; however, they failed to have him go further and study and comment on this issue as well.

As for the “wait and see” scenario proposed by the Appellants, the Tribunal rejects that approach in view of the fact that this would result in the additional cost of a second report being done. Furthermore, the requests for improvements made by Mr. Foreman and Mr. Spence would not be addressed if the closed drain work is postponed.

Accordingly, the Section 48 Appeals of the Appellants, Mark Goetz, Dawn Kennedy, William Goetz and Patricia Goetz are dismissed.

Section 48 Appeal of Tyson Kraemer

In his Notice of Appeal, Mr. Kraemer detailed the relief being sought as: “Close in ditch” “Pay more for right of way as it is residential zoned R1, not agricultural rates”. In the Report, he was allowed the sum of $5,200 for the right of way. In his evidence and submissions, he is seeking $55,000.

There appears to be some confusion in the evidence as to whether Mr. Kraemer wishes to have the open drain crossing his property closed in. In his evidence, he seemed to indicate that he did not care whether it is open or closed. The fact that there may be an additional cost to him as a special benefit to have it closed in may have been a factor. In any event, Mr. Kraemer purchased the property with a ditch across it and will end up with an open municipal drain which will be more attractive, as it will be cleaned up, and for which he will have no direct maintenance costs. There was also some evidence as to the re-alignment of the drain so that it would be moved and form a closed drain on the John Street road allowance adjacent to the Kraemer property. Again, the additional cost would be charged to Mr. Kraemer as a special benefit. Neither of these proposals were pursued aggressively by the appellant. The Tribunal dismisses that portion of his appeal.

The Engineer has calculated a right-of-way allowance for this property based on a land value of $35,000/Ha. The Tribunal finds on the evidence that this amount is not sufficient and has determined that a right-of-way allowance of $9,657.00 is more reasonable, based on a land value of $65,000/Ha. The additional $4,457.00 shall be assessed pro rata to all the lands and roads upstream of the Kraemer property, based on the open drain outlet assessment schedule.

Mr. Kraemer also requested his costs of his appeal.

Section 54 Appeals of Mark Goetz, Dawn Kennedy, William Goetz and Patricia Goetz

Based on the very detailed assessment method presented by the Respondent’s witness, Gregory Nancekivell, the Tribunal finds that the Engineer’s assessments in the Report are fair and reasonable and it prefers those calculations to those put forward in the evidence of Mr. Kuntze, except as follows:

The Tribunal agrees with Mr. Kuntze that the maintenance assessments for the upstream reach of the closed drain need some adjustment, as follows:

• the assessment to the Spence property shall be increased to 12.12%;
• the assessment to the Goetz-Kennedy property shall be decreased to 14.11%; and
• the assessment to the W. & P. Goetz property shall be decreased to 44.65%.

These changes shall be made to the schedule on page 25 of the Report. The Section 54 appeals of these appellants are dismissed in part.

Order of the Tribunal

Therefore, the Tribunal orders as follows:

1. The appeal by Mark Goetz and Dawn Kennedy under Section 48 of the Drainage Act is dismissed;

2. The appeal by William Goetz and Patricia Goetz under Section 48 of the Drainage Act is dismissed;

3. The appeal by Tyson Kraemer under section 48 of the Drainage Act is allowed in part and his right-of-way allowance shall be increased from $5,200.00 to $9,657.00. The balance of his appeal is dismissed;

4. The additional $4,457.00 shall be assessed pro rata to all the lands and roads upstream of the Kraemer property, based on the open drain outlet assessment schedule;

5. The appeal by Mark Goetz and Dawn Kennedy under Section 54 of the Drainage Act is allowed in part;

6. The appeal by William Goetz and Patricia Goetz under Section 54 of the Drainage Act is allowed in part;

7. The following changes, that is the assessment to the Spence property shall be increased to 12.12%; the assessment to the Goetz-Kennedy property shall be decreased to 14.11%; and the assessment to the W. & P. Goetz property shall be decreased to 44.65% shall be made to the Maintenance Assessment Schedule on page 25 of the engineer’s report;

8. The non-administrative costs of the Municipality incurred with respect of these appeals shall form part of the cost of the drainage works, and such costs may include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for attending and participating in the hearing; and

9. There shall be no other Order as to costs and all parties are responsible for their own costs.

Dated at Chatham, Ontario this 16th day of December, 2019.