Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
APPEAL:
Mullen Drain (RE) Town of Lakeshore, Ontario
Mullen Drain (RE)
STATUTE:
HEARING:
April 3, 2019
April 8, 2019
019Mullen18
NEUTRAL CITATION:
2019 ONAFRAAT 05
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 Judith A. Murphy, of Richmond, Michigan, U.S.A. under Section 64 of the Drainage Act, regarding the Mullen Drain in the Town of Lakeshore.
Before: John O’Kane, Vice-Chair, Ed Dries, Vice-Chair, and Sarah Judd, Member
Appearances: Judith Murphy, Appellant Jim Renick, Counsel for the Town of Lakeshore Gerard Rood, Engineer, Rood Engineering Inc. Jill Fiorito, Drainage Superintendent, Town of Lakeshore Tim Mullen, Assessed Landowner
DECISION OF THE TRIBUNAL
Judith Murphy appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 64 of the Drainage Act, R.S.O. 1990, Chapter D.17, as amended (the “Act”) because of her dissatisfaction about the quality of construction of drainage works constructed under an engineer’s report prepared by Gerard Rood of Rood Engineering Inc. (the “Report”) dated June 20, 2016 and known as the Mullen Drain.
The Tribunal conducted the appeal hearing in the Town of Lakeshore on April 3, 2019, with Brianna Coughlin, Deputy Clerk of the Town performing the duties of Clerk of the Tribunal.
The appeal is dismissed because the Appellant failed to prove that the Mullen Drain drainage works as constructed were not as designed in the Report.
Preliminary Matters
The Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing.
There are only two properties served by the Mullen Drain, the Appellant’s property and the property of Tim Mullen. Both Mrs. Murphy and Mr. Mullen attended the hearing and gave evidence.
The Town filed an Affidavit of Service, dated April 3, 2019, proving that both landowners on the Mullen Darin had been served with the Notice of Hearing.
Quality of Construction Under S. 64
Section 64 of the Act provides that:
Any owner of land dissatisfied with the quality of construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.
That wording of section 64 gives landowners a statutory right to appeal to the Tribunal about their dissatisfaction with the quality of construction of drainage works.
Drainage works under the Act are authorized where an area is determined to require drainage according to the procedures established under the Act. Under the Act, the purpose of drainage works is to convey water from the area determined to require drainage to a sufficient outlet. Under the Act, the Engineer’s duties include developing plans and profiles and specifications of the drainage works. Those plans, profiles and specifications include the route the drainage works will follow in the field, the nature and structure of the drainage works, the elevations of the drainage works along the route, the materials to be used in construction, the access routes and working corridor for construction and any required mitigation or remediation measures during and after construction.
It is evident that the right to appeal about dissatisfaction with the quality of construction of a drainage works relates to those plans, profiles and specifications developed by the Engineer.
Since the issues engaged in a quality of construction appeal relate to engineering plans, profiles and specifications and whether constructing the drainage works satisfactorily accords with those plans, profiles and specifications, it would benefit any landowner considering such an appeal to consult with a drainage engineer or a drainage contractor before proceeding to an appeal hearing.
In this appeal, the Appellant provided no engineering or construction evidence.
In this appeal, the Appellant raised concerns about the absence of silt fencing during construction, debris in the fields, the elevations of the open ditch bottom, standing water and algae, the elevations of inlets and outlets of closed portions of the works, grates on inlet and outlet structures of closed portions of the works, the absence of seeding on the ditch banks, the absence of rock chutes adjacent to field furrows, limestone bedding beneath lateral field tiles and four missing survey bars denoting her property line.
The Appellant produced no evidence that the drainage was not working precisely as designed.
The only engineering evidence during the hearing was from Gerard Rood, a professional engineer who the Tribunal qualified as an expert to give opinion evidence in drainage engineering. His evidence was that constructing the drain was supervised and inspected by his firm and that the construction was according to the plans, profiles and specifications of the Report. His evidence was the drain was performing as designed.
Findings
On the issue of the Appellant’s concern over missing survey bars, there was insufficient evidence to satisfy the Tribunal that the status of the survey bars has any connection with the construction of the drainage works. This issue was not a quality of construction issue under s. 64 of the Act.
On the issue of the Appellant’s concern of debris, there was insufficient evidence to satisfy the Tribunal that the debris was in any way associated with the drainage works. This issue was not a quality of construction issue under s. 64 of the Act.
On the issue of limestone erosion protection beneath the outlets of lateral field tiles, there was no evidence to satisfy the Tribunal that lateral field tiles were in any way associated with the drainage works. This issue was not a quality of construction issue under s. 64 of the Act.
On the issues of the elevations of the ditch bottom, the elevations of the inlet and outlet of the closed portions, the absence of grating on the outlet and inlet of closed portions, missing rock chutes, and the method and success of the seeding of the drain banks, the only engineering evidence satisfied the Tribunal that the quality of construction was as established in the Report.
While the Appellant may have had concerns about these appeal issues, her concerns do not rise to the level of proof.
Order of the Tribunal
Based on the findings and analysis, the Tribunal orders:
The appeal is hereby dismissed.
The disposition of the costs of this appeal shall be reserved.
The Town of Lakeshore shall deliver to the Tribunal Administrator written costs submissions not exceeding five pages within ten days of the release of these reasons.
The Appellant shall deliver to the Tribunal Administrator written costs submissions not exceeding five pages within twenty days of the release of these reasons.
Dated at Collingwood, Ontario this 8th day of April, 2019.