Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd^ Floor NW
Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e^ étage NW
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Anthony and Tracey Melidy v Municipality of Bradford West-Gwillimbury (RE)
Anthony and Tracey Melidy v Municipality of Bradford West-Gwillimbury
STATUTE:
Drainage Act
HEARING:
February 12, 2020
March 1, 2020
014HollandMarsh19
NEUTRAL CITATION:
2020 ONAFRAAT 03
MELIDY PETITION FOR DRAINAGE WORKS
Municipality of Bradford West Gwillimbury
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 Anthony and Tracey Melidy of Bradford, Ontario under Section 5(2)(a) of the Drainage Act, with respect to the decision denying a petition for drainage works in the Municipality of Bradford West Gwillimbury.
Before: Brandi Neil, Vice-Chair; Ed Dries, Vice-Chair; Lee Holling, Member.
Appearances:
Anthony Melidy, Appellant
Paul Courey, Counsel for the Municipality
Frank Jonkman, Drainage Superintendent
DECISION
Background
The appeal of this matter was heard on February 12, 2020 in the Town of Bradford Ontario (“Town”). Anthony and Tracey Melidy had brought a petition under s. 4(1) of the Drainage Act “Act”. On October 10, 2019 their petition was denied. They are appealing this decision under s. 5(2) of the Drainage Act. It was explained during the testimony of Drainage Superintendent, Frank Jonkman (and is not a matter of contention) that the Municipality of Bradford West Gwillimbury’s drainage responsibilities under the Drainage Act are delegated to the Holland Marsh Drainage System Joint Municipal Service Board (hereinafter referred to as the “Drainage Board”). Throughout this decision the terms Drainage Board and Municipality will be used interchangeably.
Preliminary Matter
Prior to the commencement of the hearing, Counsel for the Municipality asked the Tribunal to clarify the standard of review for the Municipality’s decision to deny the appeal. The Tribunal indicated that the hearing before the Tribunal would be a de novo hearing.
Issues
The issue in this appeal is whether the Tribunal should confirm the Drainage Board’s denial of the Melidy Petition under Section 4(1) of the Act or direct the Drainage Board to accept the drainage petition and appoint an engineer under the Act.
The relevant sections of the Drainage Act are:
4 (1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,
(a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;
(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;
(c) where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 (5);
(d) where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).
5(2) Where a petitioner,
(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or
(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council,
the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2); 2006, c. 19, Sched. A, s. 6 (1).
Evidence
The Tribunal heard from only one witness for each of the parties.
The Evidence of Anthony Melidy
Mr. Melidy and his wife, Tracey Melidy, are the owners of the property municipally described as 122 Ondrey Street. Mr. Melidy explained that water pools on the property of his neighbour to the northeast (126 Ondrey Street) and that creates surface and subsurface water flow to the northwest side of his house (near the back of his house). He testified this water flow has caused significant damage to his foundation as well as a hole under his driveway. Mr. Melidy testified that he has no water in his backyard.
The original grading plan for his property and his neighbours at 126 Ondrey and 130 Ondrey was entered into evidence. This document appears to show that water should flow away from the three houses to the Hydro Easement that abuts Mr. Melidy’s property in the southwest side. It was explained by Mr. Melidy that this grading plan is incorrect and that water cannot flow in the direction shown due to adverse grading. It is his position that the Town should never have accepted the grading plan. He testified that he is not the original owner but has not made changes to the grading that created this problem. The problem has existed the entire time he has had the property and he first raised it with the Town back in 2004. He also entered into evidence an aerial photograph of the area that helps show that no other water comes to his property other than the water from the house to the northeast of his property where it is pooling.
He outlined his efforts to try and deal with the flooding, including the installation of exterior weeping tiles and a sump pump with flow-monitoring in the basement. He entered into evidence a number of charts and graphs that identified the frequency and extent of flows through the sump pump system. Mr. Melidy pointed out that some of that evidence showed that his sump pump was evacuating more than 1000 gallons per day on occasion.
Mr. Melidy confirmed that he had approached the Town in 2004 to inquire about a drainage study as he was experiencing a lot of flooding. The Town issued a Property Standards Order against the Appellants to discontinue discharging their sump pump onto the road surface as it had caused icing problems. A report was prepared by R.J. Burnside and Associates (hereinafter referred to as the “Burnside Report”). This report was entered into evidence. Mr. Melidy takes issue with the Town’s reference to this 2004 document as a Drainage Study as it was not a Drainage Study under the Drainage Act, as it was in relation to a Property Standards Order against him. He also testified as to why he did not think the suggestion in the Burnside Report to drain to the watercourse on the hydro easement would work. During his testimony he explained his sump pump is located at the back right most northerly corner. He testified that it would be 100 feet from that area to the hydro easement property and testing he conducted suggested it would not work. He indicated the solution of pumping to the hydro easement stream would only work when that property is dry, as when it rains the water in the hydro easement stream gets backed up and water goes all the way to his fence line at the hydro easement property line. He also testified that even this solution was able to work, and he had concerns discharging the water on to the hydro easement because it is used as a pathway by students to walk to school. He said it would create an icing hazard and a liability issue.
Mr. Melidy was asked more than once during cross examination and repeatedly answered that he was aware that should the appeal be granted, that they (the Appellants) will likely have to pay for all the costs. He also indicated he was aware that even if the petition is granted, the end result may not be a municipal drain. He was very clear that in his view, there were no other options to try and get the issue fixed. He stated in cross examination that he has not sued the neighbours, or the Town. He clearly indicated he had spoken to a lawyer and was aware that law suits can only provide money and what he needed was a solution to the drainage problem and that a petition under the Drainage Act appears to be the only proceeding which could provide that type of relief.
During cross examination, Mr. Melidy admitted the pooling of water occurs on his neighbour’s property and then it is the surface and subsurface water that flows to the side of his house and ends up in his sump pump. When asked if he has tried to speak to the neighbour about this, he indicated they do not get along and no longer speak.
Evidence of Frank Jonkman, Superintendent
Mr. Jonkman testified on behalf of the Drainage Board. He is an employee of the Township of Bradford West Gwillimbury and has held the position of the Drainage Superintendent since 2007. He testified that the hydro easement property is owned by the Town and it is a linear strip of land to the southwest of 122 Ondrey Street, and that a watercourse flows through it. He explained that is serves several purposes, as a hydro easement and as a point of discharge for storm water that is collected within its watershed. He testified that the watershed extends quite far to the northwest portions of Catania Road and Simcoe Road and also includes a storm water facility for the Veseli Court Development. He explained there was a trail network within the hydro easement developed a number of years ago, but it was abandoned. He said it is barricaded at Simcoe road and fenced it at the bottom of the northerly part of the strip to the west. He said he was reluctant to call it a stream as its source of water is the storm outlet.
Mr. Jonkman indicated he did not know what the grade of the land is at 122 Ondrey Street, but from the property line heading in a south westerly direction towards the water course, he estimated there is about a .60 to .70 meter grade difference from the Melidy property along the shortest distance to the watercourse.
He stated that the Burnside Report originated as a result of a complaint and that the report was prepared to address a Property Standards issue related to ice on the road created by the discharge of the Melidy’s sump pump. He indicated the proposed solution in the Burnside Report was possible. Mr. Jonkman stated it would be possible to install a covered drain from the watercourse to the Melidy property line and receive surface and sub surface (pumped) flows from the Melidy lands. He indicated that the Town would not have any objections to water being discharged that way.
Mr. Jonkman confirmed that there are no storm sewer service connections from the storm sewer on Ondrey Street to the private lots. He had no background knowledge of the design standards of this storm sewer. When asked if the storm sewer had adequate capacity to accommodate a direct connection from the Melidy property, he indicated it would have to be reviewed.
He confirmed that the Melidy land relative to the watercourse is higher. He also testified that he believed the original grading plan for developed lots to be generally correct. However, he did not know if the properties were actually built to these plans orif there were inspections done during or after building.
In cross examination Mr. Jonkman indicated he has never been on the Appellants’ property at 122 Ondrey Street or the neighbours’ properties at 126 or 130 Ondrey Street.
He was asked about the legal rights to be able to artificially collect and discharge water across a neighbour’s property and indicated a landowner might factually send water across their neighbour’s property to an outlet, but legally they can’t. He said in most cases neighbours negotiate an easement over the property, but in the worst-case scenario a landowner can use the Drainage Act. He clarified that if a landowner has a legal outlet they don’t need the Drainage Act.
Mr. Jonkman was asked whether the watercourse on the hydro easement would back up to the property of the appellant. He indicated that generally the capacity of the watercourse is sufficient but there is some flooding from above-average events.
He was asked if the solution of having a pipe discharging into that watercourse from the Melidy property could still function if it became submerged in a big storm event. He confirmed that it would with the installation of a back-flow preventer on the outlet pipe.
Although he testified that the Municipality has indicated Mr. Melidy can discharge his sump pump water on the Hydro Easement property, Mr. Jonkman could not say if the Municipality would provide a letter regarding indemnification for liability.
Findings
Do the Melidys have a Drainage Issue?
Mr. Melidy provided significant detail and measured impacts to accurately identify the drainage issues on his property from the neighbour’s surface water. His evidence included pictures of where water pools on his neighbour’s property, results set out in graphs and tables from a smart outlet he installed on his sump pump, Simcoe County aerial maps showing elevations as well as photographs he has taken demonstrating a hole in his driveway. He has gone beyond simply stating he has a drainage problem and went to great efforts to quantify the significance of the issue. The Municipality called no evidence to the contrary. The Tribunal finds that the Appellants have established they have a drainage issue.
Will the Melidys Meet the Threshold Requirements for s. 4(1) of the Drainage Act
In cross examination of Mr. Melidy and in closing argument, counsel for the Municipality suggested that the Melidys will not meet the threshold requirements of s.4(1) of the Drainage Act. Counsel suggested that the drainage issue is on the neighbouring property and that the Melidy land will not represent 60 percent of the hectarage requiring drainage.
While the Tribunal acknowledges that Section 4(1) does create statutory thresholds for a legally valid petition, the Tribunal makes no finding in that regard as the determination of the area requiring drainage and the validity of the petition must be made by an Engineer appointed under Section 8 of the Act.
Has the Grading Been Changed?
The Appellants take the position it is the Municipality’s fault the grading plan was not followed in the first place. The Municipality suggested in their arguments that it is the property owner’s problem if the grading has been changed. Mr. Jonkman did not know if there had been any inspections post development to determine compliance. The Tribunal finds it has not been established whether or not the approved grading plan was followed in the first place and the Municipality did not enforce it, or whether the Appellant’s property and neighbouring properties may have been altered by previous owners. This is not a determination necessary to make in this appeal. However, the Tribunal accepts that the Appellants have not altered the grading in a manner that has caused their drainage issue and further accepts that the grading plan submitted as part of the evidence does not accurately represent the current grading on the property.
Other Solutions and Options to Resolve
a) The 2004 Burnside Report
As there was no evidence called from anyone from R.J. Burnside and Associates (“Burnside”), the Tribunal is unable to make any findings as to what amount of investigation went into the completion of the 2004 Burnside Report and whether or not the solutions suggested in the report are the best course of action today in 2020. The Tribunal does find from the evidence of Mr. Jonkman that this report was prepared to address a Property Standards issue. The report provided by Burnside is extremely dated and, as no evidence was called in connection with the report, the Tribunal cannot determine if there are changes in the watershed area or flooding issues caused by development or other factors that have changed since 2004.
The assessment of whether drainage works are needed and necessary and the type of drainage works required is a determination for an engineer appointed under section 8 of the Drainage Act based on current conditions.
b) Negotiations and Court Actions
Mr. Jonkman suggested in his testimony that these matters are often negotiated between neighbours for an easement for one’s water flow, however, we heard from the Appellant that he and his neighbour no longer speak, so this is clearly not an option. Mr. Jonkman suggested that the Drainage Act should be a last resort. While the Tribunal makes no finding as to the validity of that statement, we do find that for the Melidys, after sixteen years, they view it this as a last resort to have the drainage issue fixed.
There was a line of questioning by the Municipality’s counsel that suggests a court action against the neighbours or the Town should have been pursued. Mr. Melidy has not pursued a court action and gave evidence that he wants a solution, not money and that a court action will not rectify the problem. In Mr. Melidy’s view, his only recourse to get the matter resolved is through the Drainage Act.
The Tribunal finds that the Appellants have the choice of pursuing the matter through civil action in the courts or through the Drainage Act. The Appellants’ pursuit of this matter through the Drainage Act is appropriate.
c) Concern re Costs
Counsel for the Municipality suggested in closing that the cheaper and better options for the Appellants to address this will be on their own and not through the Drainage Act. He further suggested that the Municipality does not want to see the Appellants spend too much money and still not have the problem fixed. Whether or not there is a cheaper way to address this issue is not a factor the Tribunal must consider. It is clear from Mr. Melidy’s evidence that he is aware of the potential costs and his obligations to pay under the Drainage Act.
Law
Counsel for the Municipality directed us to the Oldfield Drain Petition decision of this Tribunal, 1997 ONAFRAAT 7 (“Oldfield”). The facts in that appeal can be distinguished from this case. In the Oldfield matter, the Appellants had petitioned under the Drainage Act the year before, and an Engineers Report had been made. The recommendation of the engineer was to not proceed with drainage works. Instead of appealing that decision under s.45(2) of the Drainage Act, the Appellants brought a new petition. The municipality in denying the second petition relied on the Engineer’s Report from the previous year. The Tribunal in denying the appeal said the municipality properly relied on the report from a year earlier. This is very different than the matter currently before the Tribunal. In the present matter there has not previously been an Engineer’s Report under the Drainage Act. The only previous report on the Melidy matter is one from almost 16 years ago in relation to a property standards issue not under the Drainage Act. The Tribunal does not find that case is relevant to the decision.
The Municipality also referred the Tribunal to the following decision, Leddy v. West Wawanosh (Township) 2000 ONDR 7. That matter was an appeal under section 47 of the Drainage Act to the Drainage Referee. The decision being appealed was one that was based on a report of an Engineer appointed under Section 8 of the Act. The issue in the present appeal before this Tribunal is centred around whether an engineer should be appointed in the first place. The Tribunal does not find this decision helpful in that determination.
Decision
After addressing all the issues raised, reviewing all the evidence and submissions, the Tribunal accepts that it has been established by the Appellants that there is a drainage issue that warrants further investigation. The Tribunal orders that an engineer be appointed to determine if the petition meets the threshold requirements under s. 4(1) of the Act and if the matter can be pursued further as set out under s. 9 of the Act.
Order
The appeal of Anthony and Tracey Melidy under Section 5(2) of the Drainage Act is granted. The Municipality is directed to accept the petition under Section 4 of the Drainage Act and appoint an engineer as set out in Section 8 of the Drainage Act.
That there shall be no Order as to costs and all parties shall be responsible for their own costs.
So orders the Tribunal.
Dated at Orangeville, Ontario this 1st day of March, 2020.