Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West, 2nd Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West, 2e étage 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:

Cranberry Creek Municipal Drain (RE)

City of Ottawa

Cranberry Creek Municipal Drain

STATUTE:

Drainage Act

HEARING:

February 11, 12, 13 and 15, 2019; April 8-9, 2019; May 2-3, 2019; September 17-20, 2019

DATE OF DECISION:

June 30, 2020

006Cranberry18

NEUTRAL CITATION:

2020 ONAFRAAT 09

Cranberry creek municipal drain

City of Ottawa

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:

Amanda Beatty,

Sections 48(1)(a)(b) and 54(1)

Clifford Beatty,

Sections 48(1)(a)(b) and 54(1)

Phyllis Begg,

Sections 48(1)(a)(b) and 54(1)

Wanda Bracken, Sandra Lueck and Scott Carrigan, Section 48(1)(a)(c)

Darrell Buchanan and Denise Raizenne,

Section 48(1)(a)

Eric and Shannon Carter, Section 54

Gordon and Shirley Crawford,

Sections 48(1)(a)(b) and 54(1)

Paul Crawford, Section 54

Gary Earl Section 48(1)(a)(c)

Alan and Patricia Ham, Section 54

David and Bronwyn Harper, Section 48(1)(a)

Dave Harps, Sections 48(1)(b) and 54(1)

Drew Hartman, Section 54

Brian Hutchinson, Section 54

James and Mary Johnston, Section 54

Lisa Larwill, Section 54

Randal and Heide Lavier, Section 48(1)(a)

Jacqueline Leger,

Sections 48(1)(a)(b) and 54(1)

Carol and Robert MacDonald, Section 48(1)(a)

Marc MacDonald,

Sections 48(1)(a)(c) and 54(1)

Wayne Mackey,

Sections 48(1)(a)(b)(c)(d) and 54(1)

William Mackey,

Sections 48(1)(a)(b)(c)(d) and 54(1)

Susan Muehlherr,

Sections 48(1)(a) and 54(1) Linda Nichol, Section 54

Susan Nichol, Section 54

Jim and Donna Pantalone,

Sections 48(1)(a) and 54(1)

Robert and Sara Paquette, Section 48(1)(a)(b)

Martine Rochon and Stéphane Maynard, Sections 48(1)(a) and 54(1)

Stafford Rollocks and Delize Roberts, Sections 48(1)(a)(b) and 54(1)

Gilliam Rollocks-Bonnick, Sections 48(1)(a)(b) and 54(1)

Debbie and Duane Scharff, Sections 48(1)(a)(b)(c) and 54(1)

Owen and Isobel Severn,

Sections 48(1)(a) and 54(1)

James and Linda Sheahan, Section 54 Shannon and Jeffrey Storie, Section 54 Sabrina Valliquette,

Section 48(1)(a)(b)(c)

Danny M. Vandenhanenberg, Section 48(1)(a)

Mike Viau, Section 54

Earl and Jen Wallace, Sections 48(1)(a) and 54(1)

Alexandra and Stephen Wendt,

Sections 48(1)(a)(b) and 54(1)

Ronald and Constance Whitmore,

Sections 48(1)(a)(b) and 54(1)

Under the identified sections of the Drainage Act with respect to the Cranberry Creek Municipal Drain in the City of Ottawa.

Before:

Harold McNeely, Vice-Chair, Andrew McBride, Vice-Chair, and Sarah Judd, Member

Appearances:

Andrew J. Robinson, P. Eng., Engineer who prepared the Report

Lorne Franklin, LET, CET, Engineering Technologist who assisted with the Report

Nazgol Namazi, Counsel for the Respondent, the City of Ottawa

James Johnston, Appellant

Randal Lavier, Appellant

Douglas McKay, Affected Landowner

Constance Whitmore, Appellant

Stephen Wendt, Appellant

Rachel Samson, Witness

Robert John MacGregor, Affected Landowner

Robert Paquette, Appellant

Darrell Buchanan, Appellant

Douglas Beatty, Appellant

Phyllis Begg, Appellant

Gary Roger Earl, Appellant

Maya Khulbe, Affected Landowner

Carol MacDonald, Appellant

Marc MacDonald, Appellant

Gordon Crawford, Appellant

Charles Alan Ham, Appellant

David and Bronwyn Harper, Appellants

Jacqueline Leger, Appellant

Scott Carrigan, Appellant

Shannon Storie, Appellant

Dwight Foster, Affected Landowner

Greg Foster, Affected Landowner

Tim Woerlen, Affected Landowner

Johnathan Woerlen, Affected Landowner

William Mackey, Appellant

Linda Darlene Nichol, Appellant

Susan Nichol, Appellant

Owen Severn, Appellant

Jim Pantalone, Appellant

Stephane Maynard, Appellant

Debbie Scharff, Appellant

Susan Muehlherr, Appellant

Gillian Rollocks-Bonnick, Appellant

Jennifer Wallace, Appellant

James T. Sheahan, Affected Landowner

Lisa Larwill, Appellant

DECISION OF THE TRIBUNAL

Preliminary Matters

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) heard this matter in the City of Ottawa over a period of 12 days beginning on February 11, 2019 and concluding on September 20, 2019.

After several appellants withdrew their appeals, the Tribunal had 40 appeals to deal with concerning the Cranberry Creek Municipal Drain (“Drain”). The Engineer’s Report, (“Report”) dated December 20, 2017, for the Cranberry Creek Municipal Drain was prepared by Robinson Consultants Inc. and was signed by Mr. A. J. Robinson, P. Eng. (“Engineer”).

Erin Moore, Municipal Program Drainage Officer with the City of Ottawa, 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 appeals filed.

The City of Ottawa filed an Affidavit of Service, dated December 13, 2018, as proof that all parties had been served with the Notice of Hearing.

Issue

The Cranberry Creek Municipal Drain watershed is in the extreme southwest part of the City of Ottawa, in the geographical Townships of North Gower and Marlborough, and was originally constructed in 1895. The Report indicates that the Drain is 4,572 metres in length and that its downstream end is in the natural creek bed approximately 1,500 metres from the Rideau River (the “River”), at a point approximately 1,500 metres upstream of the Town of Manotick. The Drain was improved somewhat after an engineer’s report in 1953. After an engineer’s report in 1969, two branch drains were constructed, the main Drain was maintained, and a dyke and pumping station were built near the downstream end of the Drain. That pump had a capacity of 1100 GPM and was powered by a 3-horsepower electric motor, while the dyke included a 4-foot-wide spillway.

The Rideau River is part of the Rideau Canal System and, as such, its water level is controlled by a dam in Manotick. That water level is elevated in the late spring, summer, and early fall to provide for improved navigation on the River. That elevated water level creates backwater in the Cranberry Creek and the downstream portion of the Drain, and the dyke and pumping station were installed to address that issue. After a 1971 engineer’s report, two additional sluiceways were added through the dyke ad the pump was upgraded to a 3000 GPM unit powered by a 10-horsepower electric motor.

In 1991 an engineer’s report was prepared that recommended the improvement of the existing pumping facility, dyke and a clean-out of the channel downstream thereof, at an estimated cost of $159,000. After much discussion with the affected landowners, that report was not adopted by Rideau Township Council and, shortly thereafter, the dyke and pumping station were removed without the proper authority under the Drainage Act (“Act”). Accordingly, the elevation of the water at the outlet of the Drain has been subject to the fluctuating level of the River for the past 29 years, and the drain has not been cleaned out for over 50 years.

The current Report proposes the clean-out of the main Drain, with some culvert replacements and lowering, at an estimated cost of $325,000, plus the construction of a new dyke and pumping station, with a 33,000 GPM pump and provision for a second similar-sized pump in the future, at an estimated cost of $1,268,000, for a total estimated project cost of $1,593,000 (as at December 2017). The Engineer has assessed this estimated cost over an area of 4,350 hectares (10,750 acres) that includes approximately 300 properties, owned by approximately 285 different parties. Many of these properties are rural residential, some are recreational, most are forested, a considerable number are designated as Provincially Significant Wetland (“PSW”) and some are cleared land used for farming purposes.

Despite a very significant decision by the Court of Revision (also referred to as the “Court”) that reduced the pumping station outlet assessments to private lands by approximately $770,000, approximately 54 landowners originally appealed to the Tribunal; however, 14 withdrew their appeals prior to the first hearing date, leaving 40 appellants as of February 11, 2019. As was suggested at the Prehearing Conference on October 12, 2018, 36 of these appellants formed a group to consolidate their evidence and arguments, while 4 continued individually.

The appellants raised the following issues.

• The benefits to be derived from the proposed drainage works are not commensurate with the estimated cost.

• The proposed drainage works should be modified by deleting the pumping station and dyke.

• Many lands have been assessed an amount that is too high.

• Due consideration has not been given to the current use of many of the assessed lands.

Overview

Mr. Robinson, the Engineer who prepared the Report, provided an overview of the project in which he highlighted the following information.

1. The Report provides a design and the specifications for a new pumping station, control structure and dyke, as well as updated (metric) profiles and cross-sections for the channel to geo-referenced elevations.

2. As part of the engineering work to prepare the Report, the extent of the drainage area was reviewed using LiDAR data from the City, some field reconnaissance, some field surveys, existing reports and information provided by the City and the Rideau Valley Conservation Authority (“RVCA”). Any changes resulting from this review were incorporated. This allowed the preparation of new assessment schedules incorporating these changes and up-to-date property information.

3. The profile proposed for the channel is in general conformance with that in the 1969 engineer’s report; therefore, he considers the work on the existing channel to be “maintenance only”.

4. Some tributary drains and branch drains have been maintained since 1969 but, since 1991, only to the extent possible due to the uncontrolled high-water level.

5. Without the ability to lower the water level in the Drain upstream of the former dyke location, it has not been possible to undertake proper maintenance of the Drain, resulting in inadequate drainage of some of the lands adjacent to the main Drain and some of the branch drains.

6. The adequacy of all road and farm culverts was reviewed under this Report, resulting in one road culvert and three farm crossings being proposed for replacement. Two road crossings are open bottom spans and it is anticipated that any required clean-out of the Drain through these can be completed without modifying the structures.

7. The downstream end of the Drain is approximately 690 metres downstream of the location of the proposed dyke.

8. The Report contains approximately 30 drawings which include plans, profiles, cross-sections and standards.

9. The side slopes of the Drain were previously specified as 1.25H:1V but have not provided enough stability. Accordingly, side slopes of 2H:1V are specified in this Report.

10. An engineering subconsultant was retained to provide the design and cost estimate for the new pumping station, dyke and by-pass structure. One pump with a capacity of 2.5 cubic metres per second (“cms”) is proposed (i.e. 33,000 GPM) with an inlet structure, enclosure and outlet pipe. A second independent inlet, enclosure and outlet are proposed to permit installation of an additional pump for emergency situations or permanent use, if necessary. Control panels will be installed above the maximum flood elevation, adjacent to the pumping station. An access road and three phase power line will also be installed.

11. Hydrologic modelling of the drainage area was undertaken using Stormwater Management Hydrologic Modelling for the 2, 5, 10, 25, 50, and 100-year design storms and it produced peak flows ranging from 12.2 to 47.8 cms. A 4 cms pump would be able to drawdown the 2-year event within 45 hours and the 5-year event within 72 hours; however, due to the uncertainty of the drainage system to actually deliver those flows to the pumping station site, the current proposal is to install the 2.5 cms pump with provision to install a second temporary or permanent pump in the future.

12. The elevation of the top of the control structure in the dyke has been specified at 86.0 metres, which is just slightly higher than the maximum recorded water level of the Rideau River between May 1 and October 31 when water levels are raised for summer navigation. If the summer water level exceeds this elevation, the pump will not be effective in lowering the water level upstream of the dyke until the level decreases.

13. Other than the reduction of the channel sideslopes, the channel capacity is not proposed to be increased; however, vegetation management will be undertaken up to a ten-metre width across the maintained Drain to provide a main low-flow channel and a wider, second stage channel.

14. Clearing specifications that are normal in the industry are provided in the Report.

15. Sediment and erosion control measures that are normal in the industry are specified in the Report.

16. An environmental subconsultant, Kilgour and Associates Limited, was retained to prepare an Ecological Site Assessment (“ESA”) with respect to the proposed construction of the pumping station and dyke. The ESA determined that the proposed construction and the pumping station operation would result in a minor reduction in fish habitat and disruption to fisheries activities such that, in consultation with the Department of Fisheries and Oceans Canada (DFO), an operational period of May 10th to October 31st for the pumping station was developed and approved, with a Letter of Advice being issued for the project by the DFO.

17. The ESA also found that some Species at Risk (“SAR”) potentially exist in the vicinity of the Drain and many recommendations were made for the avoidance and mitigation of impacts to these during construction.

18. Disposal of excavated material, seeding of disturbed areas, fence restoration and establishment of 5-metre wide buffer strips that are normal in the industry are specified in the Report.

19. A Permit to Alter a Waterway under s. 28 of the Conservation Authorities Act, with 23 conditions, has been issued for the project by the RVCA. This Permit expired on October 24, 2019.

20. An email from the Ministry of Natural Resources and Forestry was received advising that approval of the project under the Lakes and Rivers Improvement Act is not required.

Mr. Robinson proceeded to explain the assessment method that he followed to distribute the cost of this project over the lands and roads within the drainage area, in accordance with s. 22 of the Act for benefit, s. 23 of the Act for outlet liability, s. 24 of the Act for special benefit, and s. 26 of the Act for the increase of cost of the drainage works caused by the existence of the works of a public utility or road authority. Mr. Robinson made specific reference to the definition of “special benefit” as taken from s. 1 of the Act and included this in his Report as “any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works.”

Furthermore, in his Report , Mr. Robinson states that “A Special Benefit Assessment is charged to the properties that are directly impacted by the higher normal summer water level of the Rideau River, either as a result of flooding or of near surface water saturating the root zone of potential crops upstream of the location of the reinstated pump station control structure and dyke system. All properties contribute runoff to the main drain, hence all properties are assessed for a portion of the cost of the pump station, control structure and dyke system, however, additional benefit (special benefit) will accrue to those low lying lands that are directly affected by the normal summer water level and summer rainfall events that occasionally result in flooding of the area which directly impacts crops. This special assessment is calculated and shown on the schedules of assessment as ‘Pump Station Special Benefit Cost.’”

Mr. Robinson referred to the six basic principles that he applied in making the assessments on this project, as listed on pages 17 and 18 of his Report, including the following:

6. In assessing lands covered with bush and trees, if the situation is such that once the drain is in place, the property owner will be able to clear the bush and cultivate the land, then the property should be assessed in the same way as land already under cultivation, unless there are agreement(s) or legal restrictions which prevent clearing and cultivation.

Another assessment principle that Mr. Robinson applied was dividing the Drain into three sections for assessment of both this construction cost and that of future maintenance. He then divided these sections into three subsections based on the principle that land is assessed for the cost of the work undertaken only downstream of the location where the runoff from the land enters the drain. The upstream section factor was 1.0, the middle section factor was 0.67 and the downstream factor was 0.33. Each individual property was assigned a subsection factor corresponding to the location where the drainage from the property enters the Drain. All properties upstream of the section were assigned a subsection factor of one.

Another assessment principle that Mr. Robinson applied was the ‘Land Use Factor’ (“LUF”) that accounts for the volume of runoff from lands that are used for different purposes. The factors he applied were: 1.0 for agricultural land; 2.0 for small, non-agricultural lots (residential) that are 5 acres or 2.0 hectares or less; 4.0 for high density residential, institutional, commercial, or roads; and 0.5 for PSWs. The area of each property of land within the drainage basin was multiplied by the appropriate LUF to arrive at a factored area that was in turn used to determine final assessments. Forested areas were assigned a factor of 1.0 on the basis that, as above-mentioned in basic principle 6, once the proposed drainage work is completed, all forested properties will be able to be cleared and cultivated, except those that are under a managed forest agreement, which were assigned a factor of 0.7, and those that are classed as PSWs, which were assigned a factor of 0.5.

Another assessment principle that Mr. Robinson applied was the ‘Distance Factor’ (“DF”), which considers the proximity of land to the Drain and the relative amount of water that will enter that specific section of the Drain. Bands are drawn around each section of the Drain at distances of 200 metres, 600 metres and 1000 metres. Lands within the 200-metre band have a DF of 1.0 applied to them, while lands within the 600-metre band have a factor of 0.75 applied to them, and lands within the 1000-metre band have a factor of 0.6 applied to them. Lands beyond the 1000-metre band have a factor of 0.4 applied to them. These factors were also applied to the entire length of the Drain in the pumping station outlet assessment calculations.

As aforementioned, Mr. Robinson divided the Drain into three sections for assessment purposes, as follows:

Section 1 - the downstream 1,856 metres

Outlet Assessment - 90%

Benefit Assessment - 10%

Section 2 - the middle 868 metres

Outlet Assessment - 90%

Benefit Assessment - 10%

Section 3 - the upstream 1,849 metres

Outlet Assessment - 90%

Benefit Assessment - 10%

Pump Station - the Pumping Station, dyke, etc.

Outlet Assessment - 75%

Benefit Assessment - 25%

As a result of applying this assessment method, the following schedules were prepared.

• Schedule A – Summary of Assessments for Current and Future Maintenance of the Sections of the Drain including the Pump Station Construction (Properties 1 to 547 & all roads)

• Schedule B - Assessments for Current and Future Maintenance of Section 1 of the Drain, being the downstream section, excluding the Pump Station.

• Schedule C - Assessments for Current and Future Maintenance of Section 2 of the Drain, being the middle section, excluding the Pump Station.

• Schedule D - Assessments for Current and Future Maintenance of Section 3 of the Drain, being the upstream section, excluding the Pump Station.

• Schedule E - Assessments for Construction and Future Maintenance of the Pump Station, (including properties 1 to 547 & 16 roads & Hwy 416 & 4 MTO properties).

The Court of Revision was held on three dates, April 23, May 7, and June 7, 2018. Mr. Robinson explained that there were approximately one hundred s. 52 appeals to the Court of Revision in April. The Court made changes to 41 individual properties plus two very significant assessment increases, one to the City and the other to the Ministry of Transportation (MTO).

Regarding the MTO, the Court decision was,

“The Engineers Report for the Cranberry Creek Municipal Drain was not updated at the time Highway 416 was constructed, as a result a special assessment (Drainage Act R.S.O. 1990, Sect. 24) in the amount of $100,000 is to be assessed to the ‘Ministry of Transportation’. This amount is to be deducted from the ‘pump station, engineering’ outlet cost assessed to the property owners excluding the City of Ottawa and the Ministry of Transportation properties/roads.”

Regarding the City, the Court decision was,

“Since 1991, the municipalities both former and current did not follow up with staff and engineering recommendations. Consequently, today the people in the watershed are assessed for a significantly higher cost for this project. The landowners should not bear this additional cost, as a result a special benefit assessment (Drainage Act R.S.O. 1990, Sect. 24) in the amount of $669,300 is to be assessed to the ‘City of Ottawa – General Assessment’. This amount is to be deducted from the ‘pump station, construction’ outlet cost assessed to the property owners excluding the City of Ottawa and the Ministry of Transportation properties/roads.”

This decision significantly lowered the outlet assessments to all the private lands within the drainage area.

Appearances

James Johnston, Appellant

Mr. and Mrs. Johnston own the property upon which the northerly third of the pumping station access road is proposed to be constructed. They have been given an allowance of $3080 under s. 29 (d) of the Act for this proposed access which is 0.2 hectares or 0.5 acres in area. This land is currently cleared, worked, underdrained agricultural land. Mr. and Mrs. Johnston prefer that the City buy the proposed access area from them rather than them continuing to own it and receiving the allowance. If the City is not going to buy it, they would like the entire lane fenced, gated and continually locked, plus they would like to have a legal agreement whereby the City agrees to properly maintain it and accepts full liability for it. In addition, they would like the lane built to the same standard as a subdivision street and the allowance increased to $25,000. Mr. Johnston provided a partial copy of an appraisal of a farm property he owned in the area and it indicated values between $13,000 and $14,500 per acre which he termed “wholesale values” versus small rural lots that would have “retail values” in the order of $50,000 to $100,000. Mr. and Mrs. Johnston also own the land at the extreme south end of the access road and, since there is a ditch along the west side of the road in this location, he requests that a culvert be installed in that ditch as part of the access road construction to allow him to access his property from the pumping station access road.

Randal Lavier, Appellant

Mr. and Mrs. Lavier own the property in the extreme northeast part of the drainage area through which the drainage area boundary passes. Being that their property is quite some distance from the Cranberry Creek Drain, when they decided to randomly tile drain their land, Mr. Lavier made arrangements with his neighbour to the north to cross his property to obtain outlet into the Johnston Municipal Drain. Mr. Lavier provided a letter from his neighbour, Mr. Daly, confirming that this drainage work took place in 1996. In addition to tiles, Mr. Lavier excavated several open drains on his property to collect some of the surface water and direct it to the north. Mr. Lavier provided a plan of his property on which he indicated his ditches and tile drains. He did not provide this plan to the Court of Revision. He also advised that an area of about 4 acres in the extreme southeast corner of his property drains to a depression beside the road that has no outlet such that it is wet all year and cannot be worked. Mr. Lavier agrees that some of the surface water from his land does flow southerly toward Cranberry Creek. As his appeal to the Court of Revision was denied, he requests that the Tribunal order changes to his assessed area, a reduction in his assessments and modification of the drainage area boundary to take into account his drainage to the north and his complete lack of outlet for the 4-acre area.

Affected Landowner, Douglas McKay

Mr. McKay owns a 107-acre property in the extreme southeast part of the watershed through which the drainage area boundary passes such that 95 acres is included within the drainage area and 12 acres are excluded. The property includes a 60-acre hay field which is entirely within the drainage area, and this field is flooded every spring. He purchased this property in late October 2005 when it was dry, but the annual flooding was not disclosed to him. Mr. McKay used a series of aerial photos from various years, starting in 1976, to show how the flooding has been increasing over time, with the worst case being in May 2017 when he had carp fish swimming in his field.

In order to determine the condition of the Drain for himself, he tried to canoe part of it in the summer of 2018 but was not able to cover much of the length due to its serious disrepair, such as significant sedimentation and vegetation overgrowth. He very much wants to see this project proceed. It is his opinion that the channel cannot be properly cleaned out until the dyke and pumping station are installed in order to lower the water level and allow equipment to access the channel. After construction, he would very much prefer that the pump operate well before the May 10th start date imposed by Fisheries and Oceans Canada; however, when the channel is cleaned out, the water will flow much better to the River year-round.

Following the evidence of Douglas McKay, the Tribunal proceeded to hear the evidence of several appellants forming part of an appellant group assisted by Mrs. Constance Whitmore. Some of these appellants asked to be considered as expert witnesses in giving their evidence. As a result of this request, a brief overview of the law on expert evidence is necessary.

The Evidence of Experts

As a general rule, a witness is not allowed to give opinion evidence in his/her testimony before a court or tribunal. However, courts and tribunals have found it necessary to admit expert evidence during a trial to assist the judge, jury or tribunal to understand the technical nature of the facts and to formulate an opinion on which they can rely to reach a proper decision. At pages 622 and 623 of the 2nd Edition of the Law of Evidence in Canada, by Sidney Lederman and Alan Bryant, the role of the expert is defined as follows:

An expert is usually called for two reasons. The expert provides to the court basic information necessary for its understanding of scientific or technical issues involved in the case. In addition, because the court is incapable of drawing the necessary inferences on its own from the technical facts prescribed, an expert is allowed to state his or her opinion and conclusions.

The authors also go on to state:

The test of expertise so far as the law of evidence is concerned is skill in the field in which the witness’s opinion is sought.

Expert evidence is most frequently tendered in the field of medicine, engineering or similar disciplines. An expert report or expert evidence consists of a blend of fact-based evidence and opinion evidence.

To assess the studies or activities pursued by the person to be qualified as an expert, it is essential that the witness provide a detailed curriculum vitae setting out his/her studies and activities in the field of their expertise.

The opinion of the expert can be based on his/her personal knowledge and can also be based on facts provided by other witnesses or from another reliable source such as maps and scientific reports prepared by governmental agencies or other experts.

Lederman and Bryant conclude as follows:

As long as the court is satisfied that the witness is sufficiently experienced in the subject matter at issue, the court will not be concerned whether his or her skill was derived from specific studies or practical training, although that may affect the weight to be given to the evidence.

Since the expert is providing the court or tribunal with the assistance it requires to reach a decision, it is important that the evidence of the expert witness be given in an independent fashion, not influenced by a desire to assist one party over the other.

If an expert demonstrates a bias, a lack of objectivity, or is not non-partisan in his/her evidence, the court or tribunal may disregard the evidence or give it less weight. The expert’s duty to assist the tribunal or court should be demonstrated during his/her evidence.

The Supreme Court of Canada decision of White Burgess Langille Innes v. Abbott and Haliburton Co. 2015 SCC 23, [2015] 2 SCR 182 (“White Burgess”) provided guidance regarding challenges to experts on the basis of bias and lack of independence. Justice Cromwell stated, at paragraph 19, that the law regarding the admissibility of expert evidence has two main components.

The first component requires the tribunal to consider four traditional threshold requirements for admissibility of the evidence set out in R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 (“Mohan”), a decision of the Supreme Court of Canada. These are:

i) relevance

ii) necessity to assist the trier of fact

iii) absence of the exclusionary rule; and,

iv) the need for the expert to be properly qualified.

The second component has been described as a discretionary gatekeeping role when a court or tribunal balances the potential risks and benefits of admitting the evidence. In White Burgess, Justice Cromwell also explained that the lack of independence or impartiality on the part of an expert witness goes to the admissibility of the testimony of the witness, not just to its weight.

At paragraph 54 of the White Burgess decision, Justice Cromwell states:

Finding the expert evidence meets the basic threshold does not end the inquiry. The judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage.

At the Hearing, and before any of the following named witnesses testified, Counsel for the City of Ottawa objected to the evidence of Constance Whitmore, Dr. Stephen Wendt, Dr. Robert John MacGregor, Rachel Samson and Robert Paquette as expert witnesses. Relying on the Mohan decision, she argued that these witnesses could not be appellants or owners made parties to the appeal and also appear as experts giving expert evidence before the Tribunal. She argued that these witnesses could not be both objective and fair in their evidence because, as appellants or affected owners, they each had an interest in the outcome of the appeal. The City’s Counsel also underlined that Rule 53 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 requires an expert witness to execute an Acknowledgment of Expert Duty (Form 53) with his/her report.

Not every expert witness is required to provide this Acknowledgment. In the Court of Appeal decision of Westerhof v. Gee Estate 2015 ONCA 206, the Court answers the question: To Whom Does Rule 53.03 apply? At paragraph 59 of the decision, Justice Simmons states:

I conclude that a witness with special skill, knowledge, training or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its content without complying with rule 53.03 where:

The opinion to be given is based on knowledge, training and experience on the witness’s observation of, or participation in, the events at issue; and,

The witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

The Tribunal acknowledges that it is somewhat unusual for persons to give evidence in the dual role of involved parties and experts.

At the early stage of this hearing, it was not possible to make a blanket determination to qualify or disqualify those persons named by the City’s Counsel as expert witnesses. The admissibility of the evidence of a person as expert would rest on the evidence concerning each person’s special training, their experience, their objectivity and on the factors referred to above.

The admission of evidence at a Tribunal hearing is not as rigid as in a hearing before a court. In addition to the provisions of the Tribunal’s Rules of Procedure 20 and 22, the admission of evidence is also governed by s. 15 and s. 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which we have reproduced below.

What is admissible as evidence at a hearing?

15. (1) Subject to subsection (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

Notice of facts and opinions

16. A tribunal may, in making its decision in any proceeding,

(a) take notice of facts that may be judicially noticed; and

(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S.O. 1990, c. S.22, s16.

The SPPA and the Rules of the Tribunal give broad authority to the Tribunal to receive evidence. The SPPA allows for a more relaxed method of introducing evidence than might be the case in the courts. The Tribunal is a specialized decision maker and can apply its special knowledge in matters of drainage to carry out the purposes of the Drainage Act as stated in ss. 51(1).

In the following paragraphs, we will comment on the admissibility of the evidence of each witness and the weight to be given to this evidence in our decision.

Constance Whitmore, Appellant

Mrs. Constance Whitmore requested that she be qualified to give expert evidence.

As will be seen from the summary that follows, the presentation by Constance Whitmore before the Tribunal focused on her knowledge of the properties, the history of the involvement of the “Appellant Group”, the preparation of the Group’s 509-page Evidence Book (Exhibit #9), which contained background information and history of the Cranberry Creek Drain, comments on the process that the City followed for the preparation of the Drainage Report, and the process followed to obtain municipal approval for the Drain. This evidence is not evidence of a technical nature required to assist the Tribunal to understand complex technical or scientific evidence. It is general evidence that can assist the Tribunal, but it is not expert evidence as defined in the Common Law or the Rules of the Tribunal.

Mrs. Whitmore’s attention was directed to the general instructions given to all participants that she was to limit her evidence to elements that were within her knowledge and to reserve her arguments or representations to the end of the hearing. Notwithstanding this direction, Mrs. Whitmore’s evidence was a presentation consisting of evidence and arguments. While a practical and liberal approach is preferable when dealing with unrepresented litigants, the Tribunal allowed Ms. Whitmore to continue with her presentation but limited her argument time at the end of the hearing. Nevertheless, the document brief, coordinated and organized by Mrs. Whitmore on behalf of the Appellant Group, contained important documents that will be referred to later in this decision. The Tribunal did not place weight on the opinions expressed by Mrs. Whitmore since she, as an appellant, does not qualify as an expert and, as such, those opinions are not to be considered as evidence.

Nevertheless, below we have reproduced portions of Mrs. Whitmore’s evidence that have relevance to the issues under appeal.

Mrs. Whitmore and her husband own property #168, a 104-acre property in the upstream quarter of the drainage area, on the extreme north side, such that the drainage area boundary passes through their property, and only 10 hectares or 25 acres are assessed for the project. Their property is some 5 kilometers from the upstream end of the Drain and 8 kilometers from the site of the proposed dyke and pumping station.

Mrs. Whitmore has been the primary organizer of the “Appellant Group” (also referred to as the “Group”), which includes 36 appealing landowners and one affected owner, and she was instrumental in preparing the Group’s 509-page Evidence Book that was submitted as an exhibit.

Mrs. Whitmore advised that the drainage area is quite mixed with rural residential properties, recreational properties, many forested properties and some agricultural properties. Generally, the Appellant Group was shocked by the notice that their properties would be assessed for the cost of this proposed project, some as much as $38,000, prior to the Court of Revision. The drainage community here includes approximately 300 property owners and, in June 2018, the Group presented a petition with 210 signatures to City Council, and the Agriculture and Rural Affairs Committee of Council, opposing the project and have received no reply from the City. Furthermore, there were over 100 appeals to the Court of Revision. More so, since there is a significant area of Provincially Significant Wetland (PSW) within the watershed, the Group was surprised that the project was being allowed to proceed at all. These concerns seem to have galvanized many property owners to oppose the proposed project.

For the most part, the Group is not opposed to a clean out of the Drain; however, it is opposed to the proposed construction of the new, very large pumping station and dyke. Accordingly, the Group requests that the Report be set aside, mainly due to concern for the wetland environment that will be adversely affected, and due to the lack of a cost- benefit analysis, and due to many errors and omissions in the Report. Most assessed owners oppose the project and suggest that the process has been flawed as it should have been undertaken in accordance with s. 4 of the Act rather than s. 78. If the Report is not set aside, the Group suggests that the Engineer’s assessment reasoning and formulae, as described in s. 7 of the Report, are in error and should be abandoned, especially the theory of assessing forested property at the same rate as cleared, worked, and in most cases, drained agricultural land.

Mrs. Whitmore explained that she and four other landowners would be presenting most of the evidence for the Group; however, in addition, most of the individual property owners wished to give evidence specific to their properties.

Mrs. Whitmore’s evidence, which spanned approximately a day and a half, dealt with; (a) issues concerning the process followed during the preparation of the Report, (b) issues with the contents of the Report, and (c) specific issues with the assessments to the lands of the appellants. Neither s. 48 nor s. 54 of the Drainage Act allow the Tribunal to deal with process issues. Accordingly, Mrs. Whitmore’s comments and concerns in that regard have not been reproduced here.

Mrs. Whitmore’s research indicates that the entire area assessed special benefit for the dyke and pumping station is within the floodplain of the Rideau River and Cranberry Creek and that a large portion of that special benefit area is wetland, some being PSW.

Mrs. Whitmore and her husband are very concerned about the ongoing land use changes within the drainage area whereby large scale agricultural operators are purchasing wooded land, clear-cutting it, removing the stumps, underdraining it, usually with the use of pumps, and putting it into cash crop production, whether it is significant wetland, decent soil, or not. To illustrate, she referred the Tribunal specifically to properties #169, 220, 248, 249, and 250, as well as a map of the downstream half of the drainage area upon which she indicated 12 such properties, 9 that have pumped drainage systems. She also provided 13 pages of photographs and maps in support of her concern. She suggests that this practice should not be allowed to continue as it will only increase the flows and decrease the water quality in the Drain, especially under high rainfall conditions, and contribute to high water levels in the Rideau and Ottawa Rivers. Furthermore, the natural flood storage provided by the wetland forests will be lost resulting in more serious flood events. A very large percentage of this drainage area is wetland forest and it should remain that way.

It is the southern portion of the Whitmore property that is within the drainage area and that land is entirely wooded, yet the Engineer has applied a LUF of 1.0 to it. Mrs. Whitmore strongly objects to this, both for her own property, and for the many other wooded properties that have been assessed in the same manner. She submits that wooded lands do not contribute the same volume and rate of flow of water to the Drain as do cleared, worked agricultural lands, whether they are drained or not.

Upon questioning, Mrs. Whitmore advised that she is in favour of a cleanout project being undertaken of the Cranberry Creek Municipal Drain in accordance with the profiles and specifications of the current 1969 bylaw.

Considering this evidence, and that of the Appellant Group, Mrs. Whitmore submits that:

1. the s. 78 process and the pumping station solution were both chosen as they were viewed as the best ways to circumvent the environmental agencies and the City’s Official Plan;

2. the benefits to be derived from the proposed project are not commensurate with the estimated cost;

3. the Report failed to identify the cause of any flooding and assumed a solution that was 48 years old;

4. the Report contains many errors and omissions that compromise its function as a decision document for the environmental agencies and the City and has resulted in a loss of confidence by the affected property owners;

5. the Report fails to demonstrate that the proposed solution will solve the problem of an increasing number of flooding events;

6. the Report fails to consider the impact upon wetlands;

7. the solution proposed in the Report is not wanted by a significant majority of the property owners in the drainage area and indicates a failure of process, stakeholder engagement, and communication;

8. the Report does not adequately define and estimate operation and maintenance costs of the pumping station;

9. for all these reasons, the Tribunal should order the Report be set aside and all the costs, including those of the engineering firm for the Court of Revision and the Tribunal hearing, be charged to the City;

10. however, if the Tribunal finds that the proposed project should proceed, it is requested that the assessment reasoning in the Report be discarded and replaced with that from the 1969 report and bylaw and, if the tendered cost exceeds 133% of the estimates in the 2017 report, that the City be required to seek watershed landowner approval to proceed or not and, further that, a more complete and accurate estimate of the operation and maintenance costs be prepared and circulated to all landowners for review and comment;

11. however, if the Tribunal finds that the clean-out of the drain should proceed but the pumping station should not, it is requested that all the costs for preparing the Report, and all costs of the engineering firm for the Court of Revision and the Tribunal hearing, be charged to the City;

12. under any circumstance, it is requested that the Tribunal order that the City and the appellants each pay their own costs with respect to the Court of Revision and the Tribunal hearing;

13. the Tribunal is requested to find that the proposed pump and dyke solution is not a reinstatement of that from the 1969 report and bylaw but rather a complete new and much larger system;

14. under any circumstance, the Tribunal is requested to make it clear that both regulated and unregulated wetlands and floodplains are ‘natural infrastructure’ with values that need to be considered when designing drainage solutions in order to be consistent with Provincial policy;

15. if the Tribunal finds that the clean-out of the Drain should proceed, the appellants request that the environmental agencies be given the opportunity to review and approve the proposal prior to commencement of construction;

16. if the Tribunal finds that the clean-out of the Drain should proceed, a clear and concise statement of what is going to be done, how it is going to be done, and what the estimated costs and assessments will be should be distributed to all property owners prior to commencement of construction; and

17. if the Tribunal finds that any work on the Drain should proceed, the appellants request that the Tribunal consider ordering a third-party peer review of the proposed project prior to commencement of construction.

Dr. Stephen Wendt Ph.D., Appellant

Dr. Wendt has a Ph.D. in Biology from Carleton University as well as M.Sc. and B.Sc. degrees in Mathematics also from Carleton. Dr. Wendt was employed by the Canadian Department of the Environment for 33 years where he had two specialties, informatics systems analyses and biology within the Migratory Birds Branch, supervising professional staff in migratory bird and endangered species population dynamics and conservation. During his employment, Dr. Wendt developed expertise in environmental mapping, analysis of scientific information, computer modelling, and wetland classification and management. Dr. Wendt also has developed expertise on the natural history of the Cranberry Creek drainage basin as he has lived there for 45 years and taken a personal interest in the ecology, geology and biodiversity of the area.

Dr. Wendt provided a general description of the area, including its geology and physiology, as well as a typical soil profile. This information indicates that the area is underlain by a thick dolomitic limestone overlain by a glacial till including well drained drumlins with deposits of marine sands, silts, clays and organic soils between the drumlins. Except for the drumlins, the area is generally poorly drained.

With respect to the history of the Drain, Dr. Wendt pointed out that the Drain flowed naturally to the Rideau River from 1895 until 1969, a period of 74 years. From his research, Dr. Wendt advised that the dyke and pump system appeared to function adequately from 1969 until 1978, but apparently deteriorated thereafter, to the point where an A. J. Robinson & Associates Inc. 1991 report recommending complete replacement was prepared but was not adopted, and the dyke and pump station were completely removed shortly thereafter. From this information, Dr. Wendt concludes that the Drain has operated for the last 30 to 40 years without an effective dyke and pump system, meaning that, for at least 104 years of its 124 years of existence, the Drain has flowed naturally into the River. Dr. Wendt advised that other creeks, both upstream and downstream of Cranberry Creek, outlet directly to the River, meaning that, if this project proceeds as proposed, Cranberry Creek would be the only dyked and pumped tributary stream on the Rideau River. Another historical point presented by Dr. Wendt was that the 1969 report that initiated the dyke and pump station did not assign any assessment for the dyke and pump to lands outside of the “benefit area”.

Dr. Wendt advised that, from his investigations, the Cranberry Creek Drain has never been the subject of a cost-benefit analysis. Based on his experience, he suggests that the proposed project is of sufficient magnitude that such an analysis should have been done, with special emphasis on the dyke and pump station, the height of the proposed dyke and the depth of the Drain.

Dr. Wendt also analyzed River water levels for the last 40 years to determine what might constitute “flooding” in the downstream section of the Drain, based on the normal summer water level of 85.5 metres, as controlled by Parks Canada. Given that the proposed dyke and pump system cannot operate until May 10th, and given that the growing season is over by September 30th, Dr. Wendt summarized the occurrence of various “flooding events” during the period from 1971 to present. His analysis indicated that flooding events were infrequent, as 28 of the 40 years had no such flooding events. In 12 years, presuming there was no dyke, there would have been some flooding for a few properties. If a dyke existed at the 1969 report elevation of 85.855m, it would have been overtopped 3 times, in 1981, 1986, and 2017. If there had been a dyke at the height proposed in the current report, that is 86.0m, it would have been overtopped in only one year – 2017.

Another analysis undertaken by Dr. Wendt was directed to answer the question “Where does the water come from that now flows into the Drain during the summer months?” Dr. Wendt suggests that the answer to this question is key, specifically for the dyke and pump system, in ss. 23(3) of the Act where it is stated that “The assessment for outlet liability … shall be based on the volume and rate of flow of the water artificially caused to flow … into the drainage works …”. Dr. Wendt further suggests that it is paramount to look at the time of year when determining this outlet assessment because, during the spring freshet, the pump station will not be operating, and the spring runoff will be flowing naturally directly into the River. After May 10th until the onset of winter, Dr. Wendt suggests that there is negligible or no flow of surface water into the Drain from most of the upper reaches of the catchment area. At the Court of Revision, many landowners said that was true for their properties and wanted attention paid to this fact in the assessment of outlet liability. Among the possible sources of water for the pump, Dr. Wendt suggests that agricultural tile drainage is predominant. To verify this, Dr. Wendt researched the water quality measurements taken by the RVCA within the “benefit area” of the Drain and an upstream sampling site on a nearby non-agricultural watershed very similar to the upper reaches of the Cranberry Creek catchment. Using extractable phosphorous as the indicator of water coming from agricultural sources, the results show that the phosphorous levels average about 12 times higher in the lower reach of Cranberry Creek than the levels in the adjacent upper reach where the water is flowing from predominantly forested areas. Dr. Wendt deduces that this evidence supports the conclusion that the water entering the lower portion of the Drain in the summer is coming from agricultural drainage.

Dr. Wendt then proceeded to answer the question “What are vernal pools and why are they important in the Cranberry Creek Drain catchment area?” A vernal pool, or ephemeral pool, is a low area that temporarily holds water, usually in the springtime, and generally does not have a defined surface outlet. He explained that there is extensive scientific literature about these pools and that they are common in this drainage area and important because they have a major impact on the flow of surface water, as a typical pool is surrounded by higher ground and serves as a sink for surface water. Water that collects in these pools has no surface outlet and most of it soaks into the ground, but some does evaporate.

Dr. Wendt continued by pointing out the environmental values of the natural areas within this catchment, specifically the woodlands and the wetlands, values such as carbon sequestration, flood abatement, aquifer recharge, pollution abatement, biodiversity conservation, fisheries production, production of forest products, aesthetics and many types of recreational activities. While these values may not be of primary concern under the Drainage Act, Dr. Wendt points out that all of the instruments of society must operate together on a single landscape and that some of them have been designated and mapped, such as PSWs, significant aquifer recharge areas and areas where groundwater sources are especially vulnerable.

Dr. Wendt is an appellant and, as such, we agree with the City’s representations that he cannot be considered as an expert witness within the Mohan test; however, s. 15 of the SPPA authorizes the Tribunal to receive this evidence subject to assessing the weight to be given to it. Dr. Wendt’s research into the history of the Drain, the historic flooding events, the water levels in the Rideau River, the water quality and the local geology is relevant to the issues before the Tribunal and helpful in reaching a decision. The results of his research were submitted as a 19-page Summary Report that was filed as Exhibit #15 and included the following evidence about his own property. Dr. Wendt also included evidence under five tabs in the Appellant Group’s Evidence Book entered as Exhibit 9 including the Ontario Federation of Agriculture’s positive comments on the Ministry of Natural Resources and Forestry’s Wetland Conservation Strategy for Ontario and a Summary of Surface Soil Types in the Catchment Basin that were also helpful to the Tribunal. Additional documents provide by Dr. Wendt were filed as Exhibits 16 (his entire 70-slide Power Point presentation), 17, 18, 19 and 52. His evidence was relevant and was admissible under s. 15 of the SPPA.

Dr. Wendt and his wife Alexandra own a 12-hectare (30-acre) property located approximately 2.6 km from the upstream end of the Drain and about 5.8 km from the site of the proposed pumping station. Initially, their property was assessed $3,037, but that was lowered to $937 by the Court of Revision. They are appealing under ss. 48(1) (a)(b) and ss. 54(1) of the Act. They have owned and lived on this property for 47 years.

Dr. Wendt provided significant detail about his property including topography, soils, vegetation, and drainage patterns. The property is mostly forested. He divided the property into three sections: the 4.42-hectare North Marine Plain which is Granby Sand soil with poor natural drainage; the 5.28-hectare Drumlin Area, which generally runs diagonally through the middle of the property and consists of well drained Grenville Sandy Loam; and the 2.27-hectare South Marine Plain which consists of Granby Sand and Muck soil. There are no artificial ditches or structures on the property that direct water off the land toward any component of the Drain. There are about 25 vernal pools on the property, mostly in the Drumlin Area, including two rather large ones. From detailed observation of their property, through all seasons, for 45 years, Dr. and Mrs. Wendt claim that any spring melt water that may leave their property by mid-April has flowed through the Drain and into the River by the end of April, that is, it would not use the proposed pumping station. Additionally, they are confident that there is not any runoff from their property after heavy summer rain events. Taken together with what they know about the sources of water within the catchment, by May 10th, the water in the Drain at and flowing through the proposed pumping station would be from agricultural drainage, nearby wetlands and rarely might include backflow from the River. It will not include any measurable quantity of water from their property.

Dr. Wendt also advised that he had concerns about the scope of this project from the first meeting he attended in January 2015 when the audience was advised that the project was “maintenance” to reinstate the small pump and dyke specified in a previous report but a suggestion was made by the engineer that the project could get bigger “depending on the input received”. Dr. Wendt asked to be kept informed as the project developed, but never did receive any further information from the Engineer or the City, which has raised questions in his mind about the process followed for this project.

Considering this evidence, and that of the Appellant Group, Dr. and Mrs. Wendt submit that:

1. the Report should be set aside as the benefits are not commensurate with the costs;

2. if the entire project is not cancelled, then the pumping station component should be deleted as it is not necessary as flooding events are rare - 28 of the past 40 years had no flooding events;

3. if the entire project is not cancelled and the pumping station proposal is not deleted, then the Report should be referred back to the Engineer with orders to;

• return in principle to the 1969 assessment schedule, that is, assigning outlet liability only to those lands that contribute measurable water to the Drain during the pumping season, or

• remove outlet liability assessment completely from the pumping station component of the project, and

• determine those lands within the drainage area that do not contribute any flow to the Drain, such as lands that are too distant, PSWs or other wetlands, self-draining lands and forested lands, and exempt them from any assessment whatsoever, and

• determine those lands that do not contribute any flow to the Drain during the pumping season and exempt them from any assessment for the pumping station, and

• establish monitored benchmarks for water levels at various locations, especially near PSWs, to determine if those wetlands are being adversely affected by the operation of the pumping station, and

• determine the water flow from the various types of upstream lands rather than defaulting to constant factors, such as area, when making assessments; and

• abandon the absurd assumption that all forested land within the drainage area will become drained cropland, as that is very wrong, and, if these lands are going to be assessed for outlet liability, apply a realistic LUF, such as 0.5, and

4. with respect to the Wendt property;

• there should be no outlet assessment to this property for the pumping station as it does not have any outflow from it during the pumping season, and

• recognize that the south marine plain portion has riparian drainage to the ancient course of the Cranberry Creek and, therefore, should not have any assessment whatsoever, and

• recognize that the drumlin area is self-draining and, therefore, should not have any assessment whatsoever, and

• recognize that the north marine plain portion occasionally has flow to the roadside ditch, for which the property owner pays a stormwater tax to the City, and, therefore, should not have any assessment whatsoever to the Drain, and

5. the special assessments directed to the City and the MTO by the Court of Revision should not be changed as they improved fairness; however,

6. this revised assessment schedule should also apply to the future maintenance costs of the pumping station.

Rachel Samson, Witness

Ms. Samson has a Master of Arts in Economics degree, specializing in environmental and resource economics, from Queen’s University. She is not an appellant, but she is the daughter of appellant Constance Whitmore and was retained by the Appellant Group to provide expert evidence. The Tribunal agrees with the City’s Counsel that this witness cannot qualify to provide expert evidence in these appeals by reason of her relationship with appellant Constance Whitmore. However, in her evidence, she brought the attention of the Tribunal to important comments contained in the RVCA letter of approval, as well as a case study prepared by the Senior Conservation Authority Water Resources Engineer Ferdous Ahmed and the 2009/2010 report of the Environmental Commissioner of Ontario. All of these documents are very relevant to the issues to be considered by the Tribunal in these appeals.

Ms. Samson obtained her undergraduate degree in 1998 and, since that time, has been an Economist with Natural Resources Canada and Finance Canada, a Director with Environment Canada and, since 2014, a Director with Carist Consulting, specializing in environmental economics and policy analysis including preparing many environmental performance reviews for the Organization for Economic Co-operation and Development, which is an intergovernmental economic organization with 36 member countries, founded in 1961 to stimulate economic progress and world trade.

Ms. Samson suggests that a cost-benefit analysis would have been a useful tool in making decisions regarding this project. When undertaking a cost-benefit analysis all private and social costs and benefits should be considered. Social costs and benefits include the value of ecosystem services, and governments should support actions that are an overall net benefit to society. Regarding the Cranberry Creek project, Ms. Samson suggests that the private benefits will be to the farmers who will see additional crop yields from improved agricultural drainage and reduced periodic flooding. She sees the societal benefits as a possible increase in local produce. As for the costs of this project, Ms. Samson suggests the private costs include the $1.27 million estimated cost of the pump and dyke system, the loss of wetland to hunting, the reduction in property tax benefits for maintaining wetlands, and the potential impacts on groundwater systems. The societal costs will be the loss of ecosystem services provided by wetlands for such things as flood control and attenuation, surface water purification, groundwater recharge, groundwater discharge and species habitat.

Her experience indicates that the value of wetlands is being increasingly recognized around the world due to the fact that they absorb the impacts of flooding, they filter sediments and toxic substances improving water quality, they supply food and habitat for fish, waterfowl, mammals and other species, they support recreational activities such as hunting, fishing, birdwatching, hiking, and they limit greenhouse gases in the atmosphere by acting as carbon sinks. She further suggests that developing monetary values for wetlands can be challenging, but this does not mean they should be valued at zero. Recent insurance industry studies indicate that natural infrastructure, such as wetlands, is key to reducing the growing costs of flooding in urban areas. Urban flooding alone resulted in over $20 billion in damage across Canada between 2003 and 2012. The 2017 flood in Ottawa cost the city government $2.6 million, with insured damages in Eastern Ontario and Western Québec reaching $117 million.

Ms. Samson further suggests that the potential ecosystem service costs of the Cranberry Creek proposed pump and dyke are described in the RVCA letter included as Appendix G in the Report, where she specifically points out the following paragraphs:

• “By design, the project will significantly interfere with the wetland’s hydrologic functions given that water is to be abstracted from the feature during most of the growing season.”

• “All existing wetlands, especially given that the historical wetland loss in the region is very high, will further provide even greater benefit under predicted future climate scenarios of increased flood event intensities…”

• “It is expected that the intended abstraction will remove water from the catchment that could not otherwise be removed through natural hydrologic processes, thereby increasing flows and volumes to the receiving floodplain, which will prolong high water conditions post-freshet and exacerbate potential impacts from summer storm events.”

Ms. Samson also referred to the 2014 study undertaken by Mr. Ferdous Ahmed, Senior Water Resources Engineer with the RVCA, entitled Cumulative Hydrologic Impact of Wetland Loss: Numerical Modelling Study of the Rideau River Watershed (Tab 12 of Exhibit #9). In this study, the hypothetical scenario was examined where all wetlands that are not considered provincially significant have been lost, that is 6% of the overall watershed area. The results of this analysis indicated an increase in flood peak of 6.2% for the 1:100-year flood in the Jock River subwatershed and a 4% increase in the entire Rideau River watershed, resulting in an increase of flooding at the City of Ottawa of 2.25%. The study also includes that “… without the storage of runoff in wetlands, regional groundwater resources will gradually diminish over time, and drought events will gradually increase in frequency and severity.” Other watershed reports that Ms. Samson reviewed indicate that increased agricultural activity, combined with the loss of filtering services of wetlands, could result in reduced water quality and the costs of replacing the highly vulnerable groundwater aquifer water sources would likely be very high. Both concerns would be additional ecosystem service costs in this instance.

From her research, Ms. Samson advised that Canada has about 20% of the world’s remaining wetlands and Ontario has around 22 to 29% of Canada’s wetlands. In southern Ontario, including Eastern Ontario, over 85% of pre-settlement wetlands have been converted to other uses such as agriculture. Eastern Ontario had the greatest wetland loss in southern Ontario between 2000 and 2011 and the Kemptville eco-district accounted for 40% of southern Ontario wetland loss during this period. As a result of these losses, Ontario has created a wetland strategy for the period 2017 to 2030 with the following targets: by 2025, the net loss of wetland area and function is to be halted where wetland loss has been the greatest, such as Eastern Ontario; and, by 2030, a net gain in wetland area and function is to be achieved where wetland loss has been the greatest, such as Eastern Ontario. Canada is committed to the United Nations Convention on Biological Diversity Aichi targets which are: by 2020, ecosystem values are incorporated into national and local decision-making; by 2020, the loss of ecosystem services are halted; and, by 2020, 17% of terrestrial lands and inland waters are protected.

Ms. Samson’s conclusions are:

• there is insufficient analysis and data to determine if the overall benefits of the pump and dyke system exceed the costs, as the analysis has omitted important private and social costs;

• private costs to landowners who currently benefit from wetlands have not been considered such as hunters, those receiving tax credits for wetland conservation and recreationists; and

• the social costs of wetland loss have not been considered as each additional hectare of wetland loss increases the risk of high cost flooding in the Rideau River watershed and creates unknown risks to surface water quality, groundwater quality and aquifer recharge.

Ms. Samson’s final submission was from the 2009/2010 report of the Environmental Commissioner of Ontario as follows, “Drainage works, by their very nature of dewatering land, pose a real and significant threat to wetlands in rural Ontario. While the approval of one drain petition in a wetland may seem insignificant, the cumulative impact of many municipal drains may result in significant losses of function, value and area of wetlands in a watershed. The City of Ottawa has over 700 municipal drains, totaling more than 1,200 kilometres in length. It begs the question what the cumulative impacts of 700 drains on Ottawa’s wetlands have been.”

Dr. Robert John MacGregor, Witness

Dr. MacGregor is a property owner within the catchment of Cranberry Creek but is not an appellant.

Dr. MacGregor has a Bachelor of Science (Agriculture) degree from the University of Guelph with a major in agricultural economics, a Master of Science degree from the University of Saskatchewan specializing in agricultural economics, and a Doctor of Philosophy degree from the University of California, Davis, specializing in agricultural economics.

For most of his career, Dr. MacGregor was employed within the Strategic Policy Branch of Agriculture and Agri-food Canada as a Senior Analyst and finally as Chief of the Agriculture and Environmental Policy Analysis Section. In that capacity he was heavily involved in developing future direction for policy related to the agriculture sector, leading a highly qualified team of economists and other specialists undertaking analysis related to bioeconomy, agriculture and agri-environmental policy, ecological goods and services, climate change, sustainable development and the environment. Dr. MacGregor retired in March 2014. Earlier in his career, Dr. MacGregor was employed as a Regional Farm Economist for the British Columbia Ministry of Agriculture and Food and as an Agricultural Economist with the Department of Agriculture, Livestock and Forestry within the Government of Vanuatu. He has also operated a small family farm since 2006, which has included a commercial horse farm, growing hay and producing Christmas trees.

Dr. MacGregor advised that he attended the “on-site meeting” held in January 2015 where he and many other landowners requested information about the costs, the benefits and the environmental implications of the proposed project. It is his opinion that the Report did not address any of these issues in a manner such that an informed decision could be made; therefore, he suggests that there is some question as to whether the benefits to be derived from the project are commensurate with the estimated costs. In this regard he proceeded to discuss three areas of interest: historical information and experience; economic assessment; and environmental ecological goods and services.

Dr. MacGregor’s review of the historical information, from tab seven of the Appellant Group’s Book of Evidence, indicates that there was a pump and dyke installed in 1969 and that it operated until 1991. That pump and dyke were paid for and operated by the landowners who felt they would benefit directly through improved yields, namely a small number of landowners close to the Drain, in the downstream reach. Unfortunately, that system deteriorated in the 1980s resulting in the landowners clearly indicating to Council, in 1991, that the pump and dyke were ineffective, and the benefit was not worth the cost of rebuilding. Based on that landowner input, the Council decided not to replace the pump and dyke and removed the old infrastructure.

Since an economic assessment was not included as part of the Report, Dr. MacGregor proceeded to undertake his own. He notes that the Report does not indicate what the operational criteria, costs, or performance metrics would be for the new pump and dyke system. The hydrologic modelling undertaken by the Engineer was for extreme rainfall events and, even with just a two-year event, it clearly indicates the flow at the pumping station would be about 160,000 gallons per minute (“GPM”) with the pump capacity being only 33,000 GPM. Dr. MacGregor suggests the implication is that the pump and dyke may actually impede the flow of water to the River rather than improve it. Obviously, the dyke and pump system are not meant to deal with extreme rainfall events. Unfortunately, however, the report does not conduct hydrological modelling to quantitatively assess flows under what would be considered “normal conditions”. Dr. MacGregor notes that the normal elevation of the Rideau River between May and October is 85.55 m at Beckett’s Landing. He also notes that the Report indicates that the water level in the Drain could be lowered at least 0.7 m below the normal summer level of the River. The Engineer assumes that the entire drainage basin would have a lower water table, as all the properties are charged an outlet assessment.

Dr. MacGregor’s analysis of the Canada Land Inventory Soil Capability for Agriculture mapping for the drainage area indicates approximately 20% of the land is Class 2, suitable for intensive agriculture, while 80% consists of Class 4, 5, 6 and organic soils (wetlands), which are not capable of supporting intensive agriculture. In spite of this, the Engineer has assigned a LUF of 1 to all lands, except wetlands. Dr. MacGregor suggests that applying such a LUF is not supported by the science. He suggests that the Report does not provide any analysis as to why a pump 10 times larger than the original pump will be any more effective in removing excess water in some years within the Class 2 land area, nor does the Report provide any analysis that lowering the water table in the entire basin will benefit the Class 2 land area. He suggests that hydrologic modelling should have been carried out to quantify the impact of this additional pumping.

Dr. MacGregor’s estimate of the annual economic operating costs of the pump and dyke included electrical charges, labour to inspect and maintain the pump and control structure, maintenance materials, a 10% return on the $1.5 million economic investment, and project monitoring, as required by the RVCA, resulting in a total of $307,000. Dr. MacGregor then calculated the benefit to the Class 2 land that is currently growing corn, soybeans, etcetera by estimating that 25% of the area, or 500 acres, would benefit from the pump and dyke, taking 90% coverage by crop insurance into consideration, he determined the economic benefit to be $37,500 in some years. This would result in a cost-benefit ratio of more than 8:1 which would indicate a non-viable project. He also notes that he did not include the valuable environmental ecological goods and services costs, provided by wetlands, that would be significantly reduced as a result of the proposed project.

Dr. MacGregor points out that many landowners asked the City to carry out a comprehensive cost-benefit analysis and an environmental impact assessment at the start of this project. These could have been undertaken in accordance with the terms of the Act but were not done. He suggests that his analysis, although somewhat preliminary, clearly shows that the benefits are not commensurate with the costs.

Based on this evidence, and that of the Appellant Group, Dr. MacGregor argues that:

1. this is a project that must be examined strictly based on economic criteria as it is supposed to enhance the productivity of the land in the drainage basin, so it must make economic sense;

2. however, there is no economic information in the Report to justify spending over $1,600,000 to proceed with the project as proposed;

3. contrary to the Engineer’s opinion, he argues that the current River water level is not really a deterrent to cash crop farming, as corn was introduced into the area in the early 1960’s and beans in the 1990’s when the River elevation of 85.55m was the same as it is now and farmers were able to grow these crops then and they still are, so there really is no necessity to lower the water level in the Drain now; and

4. when cross-examined, Mr. D. Foster (whose evidence will be discussed later in this decision) indicated he has been able to plant and harvest his cash crops in this drainage basin every year from 1991 until 2018 except for two years, 2013 and 2017, when very excessive rainfall events occurred, so there is no real evidence that a pumping station will be of benefit in most years;

5. furthermore, if post-emergent crops are flooded for 60 to 70 hours after a significant rainfall, they will not survive anyway, so the pump station will not help in those situations;

6. additionally, the farmers already have crop insurance available to them to mitigate the flooding risk, so they are protected;

7. most of the forested land in the drainage area is not suitable for growing cash crops and would be too expensive to clear and drain for hay and pasture;

8. an agrologist should have been retained to complete a cost-benefit analysis;

9. Dr. MacGregor’s cost-benefit analysis indicated that the costs outweigh the benefits by 8:1, and this did not take environmental consequences into consideration;

10.any benefits that may result from the proposed project will affect very few properties;

11.accordingly, Dr. MacGregor asks that the Tribunal set aside this Report on the basis that the benefits to be derived from the proposed project are not commensurate with the estimated costs thereof.

As aforementioned, Dr. MacGregor is not an appellant. He stated that he did not appeal his assessment because it is very small. It is as a result of the Procedural Order issued on the 25th day of July 2018 that Dr. MacGregor became a party to these proceedings. He was credible and gave his evidence in a non-partisan manner. The Tribunal considers Dr. MacGregor to be an expert witness, as defined in Mohan, providing evidence on the cost benefit issue that was argued by several appellants. His evidence is also admissible under ss. 15(1) of the SPPA.

Robert A. Paquette, Appellant

Mr. Paquette obtained a diploma in Forestry Technology from Cambrian College of Applied Arts and Technology in 1971. He was employed by the Ontario Ministry of Natural Resources (“OMNR”) within the Kemptville District for 30 years in various positions including Aggregate Technical Specialist, Senior Resource Management Technician and assistant Conservation Officer. Prior to that, Mr. Paquette was a Forest Technician with the Ontario Department of Lands and Forests in the Sudbury and Cornwall areas and Engineering Assistant with the British Columbia Woodlands Division. During his employment with the OMNR in the Kemptville District, Mr. Paquette conducted wetland evaluations, assisted with maintenance and monitoring of water control structures, inspected proposed and unauthorized shoreline alterations and worked extensively with tree harvesting, silviculture techniques, and ecosystems.

Mr. Paquette introduced mapping evidence from the RVCA confirming that a significant portion of the Cranberry Creek catchment is a PSW consisting of two parts. Part one commences at the site of the proposed dyke and pump station and is 215 hectares in area, whereas part two commences at Highway 416 and extends upstream for 950 hectares. These two parts are definitely hydrologically connected. The RVCA has regulated buffer zones surrounding these PSWs of at least 120m in width. In addition, the RVCA has identified floodplain within this catchment which is also regulated. Mr. Paquette has calculated that 50% of the total catchment area of 4350 ha is regulated and that 51% of that regulated area will be affected by the proposed municipal drain. Additionally, he has calculated that 75% of the regulated area is in the “outlet area” of the catchment and that 25% is in the “benefit area”, as identified in the Report.

It is Mr. Paquette’s opinion that there will be negative effects on the entire catchment due to the proposed project, including effects on the forested areas and the wetlands. Additionally, he brought attention to the fact that the ESA undertaken as part of the Report indicates that five threatened species may be affected by the proposed project. Under the Endangered Species Act, 2007, S.O. 2007, c.6, all five of these species are to receive individual protection and habitat protection. Referring to the RVCA report on the Lower Rideau Subwatershed, prepared in 2012, Mr. Paquette advises that the water quality in Cranberry Creek is still fair to poor which is the same as it was in 2002; therefore, conditions have not improved. Mr. Paquette is also concerned about the possible introduction of invasive species, such as phragmites and purple loosestrife, into the catchment area as part of the project, and this issue has not been addressed in any way. Furthermore, he suggests that the mitigation proposed is insufficient and, based on his experience, the contractor’s staff will not be adequately trained to mitigate environmental damage. Mr. Paquette indicated a general concern that the existing Acts and Regulations to protect sites such as this are not normally properly followed and/or are not strictly enforced by the regulatory agencies.

Mr. Paquette provided several very pertinent quotations from the MNRF document entitled A Wetland Conservation Strategy for Ontario 2017 – 2030 (“MNRF Strategy”) including the economic values of wetlands, their current status and threats. In order to point out the importance of wetlands to society, Mr. Paquette provided page 6 of that publication entitled “What Do Wetlands Do?” in which the following wetland ecosystem services are listed; water quality improvement, wildlife habitat, fish habitat, flood mitigation, erosion reduction, cultural and spiritual significance, climate change mitigation, groundwater recharge and discharge, recreation and tourism, and sources of food and medicines. Citing a 2013 study prepared for the Ontario MNRF entitled Estimation of Ecosystem Service Values in Southern Ontario, by Troy and Bagstad, as referenced in the MNRF Strategy, Mr. Paquette advised that, in southern Ontario, wetlands act as a natural infrastructure, providing at least $14 billion in economic benefits each year for Ontarians. Mr. Paquette stated that it is for these reasons that all wetlands must be protected, especially those in the Cranberry Creek drainage area.

Mr. Paquette pointed out that the RVCA’s conditions, especially the multi-year monitoring and reporting, are very extensive and onerous and will be very costly to comply with. These costs have not been included in the Engineer’s cost estimate.

Mr. Paquette is an appellant and, as such, we agree with the City’s representations that he cannot be considered as an expert witness within the Mohan test; however, s. 15 of the SPPA authorizes the Tribunal to receive this evidence subject to assessing the weight to be given to it. His research into the details of the drainage area, the area that is PSW and floodplain and regulated buffer, the five threatened species that may be affected by the proposed project, the water quality in Cranberry Creek, the possible introduction of invasive species, pertinent quotations from the MNRF document A Wetland Conservation Strategy for Ontario 2017 – 2030 and the very extensive and onerous multi-year monitoring and reporting required by the RVCA are all relevant to the issues before the Tribunal and helpful in reaching a decision. The results of his research were filed as part of the Appellant Group’s Evidence Book entered as Exhibit 9. Additional documents provided by Mr. Paquette were filed as Exhibits 25, 26, 27, 28 and 53.

Mr. Paquette and his wife own property #150, which is located at the extreme west end of the drainage area and has the watershed boundary passing through it such that it is only partially within the assessed area. Their property is approximately 8 km from the upstream end of the Cranberry Creek Drain and 11.6 km from the proposed pumping station. The Paquettes have owned this property for 22 years and are part of the Appellant Group and concur with the evidence provided by that group and wish to incorporate it into their evidence. They are appealing under ss. 48(1) (a) and (b) of the Act.

In the Report, the entire Paquette property of 5.56 hectares or 13.7 acres was originally assessed $1,410, based on a LUF of 1.0; however, after appealing to the Court of Revision, the affected area was lowered to 4.45 hectares and the LUF was reduced to 0.70. These changes, along with the major assessment adjustments made by the Court of Revision, resulted in the assessment on the Paquette property being lowered to $244.

Mr. Paquette provided evidence that all his property is enrolled in the Managed Forest Program with the MNRF. He also advised that the property consists of well drained Farmington sandy loam soil and that one acre at the east end is part of a Ducks Unlimited wetland project, which he confirmed with a map. Mr. Paquette undertook a GPS profile survey of the full length of his property and provided it as an exhibit. He suggests that this survey indicates that his property does not drain toward the Cranberry Creek and should be removed from the assessed area. Mr. Paquette provided several photos of his property that he advised indicate that there are many vernal pools throughout his lot such that the water that falls on his property stays on his property.

Mr. Paquette further advised that his research indicated that, in previous engineers’ reports, all the cost of the pumping station was assessed to the properties that directly benefited from it; that is, none of that cost was directed to upstream lands as outlet assessment, and that is how this project should be assessed, too.

In reply to questioning, Mr. Paquette advised that he is managing his land for forestry purposes and, where applicable, as a wetland.

Based on this evidence, and that of the Appellant Group, Mr. Paquette submits that:

1. the only reason this project has been approved by the environmental agencies is because ‘it is an existing drain originally constructed in 1895’ and because ‘it had a pumping station constructed on it in the past’;

2. if this was a completely new drainage proposal today, based on the rules and regulations that currently exist, it would not be approved;

3. the environmental protection measures in the ESA are deficient;

4. the wetland eco-systems upstream and downstream of the pumping station will be negatively affected due to the lowering of the water level upstream and the super oxygenated and strong flow of the water downstream, thus affecting both parts of the wetland;

5. the negative effects of the proposed works on the water quality, flora, fauna and society are numerous;

6. maintaining the natural flow of the Creek/Drain would offer protection of the existing wetland ecosystems;

7. maintaining the natural flow of the Creek/Drain would give the farming community the opportunity to continue to work with the land as it exists today and has existed for the last 30 years;

8. to try and modify marginal farmland that is in the floodplain at a cost of $1.6 million is irresponsible and unwarranted when the environmental damage and future operation and maintenance costs are considered;

9. the Paquette property is flat, has vernal pools throughout, consists of well drained sandy loam soil with very low agricultural capability, is 8 km from the upstream end of the Cranberry Creek Drain and 11.6 km from the proposed pumping station and, accordingly, has very little runoff at any time and definitely none that would reach the proposed pumping station between May 10 and October 31;

10. wetlands and floodplains exist to store water and attenuate floods, so farming in these areas is subject to poor drainage and flooding;

11. if the project proceeds as proposed, the properties that will directly benefit from the pumping station should be assessed all initial, operating and maintenance costs associated with it;

12. if the project proceeds, the Paquette property should have a lower LUF applied to it due to it being managed forested land and, therefore, be assessed less than currently proposed; and

13. in conclusion, the Tribunal is requested to set this Report aside.

Darrell Buchanan, Appellant

Mr. Buchanan and his wife own a 6.62-hectare property at the extreme west edge of the drainage area, approximately 11 km from the proposed pumping station and dyke. He has owned this property for 22 years. It consists of forested wetland with vernal pools that dry up in the spring such that the property does not contribute any surface water runoff during the summer season. At the Court of Revision, the affected area of this property was reduced from the total area of 6.67 hectares to 5.42 hectares and the assessment was reduced from $1,691 to $424; however, Mr. Buchanan is appealing under ss. 48(1) (a) of the Act on the basis that the benefits to be derived from this project are not commensurate with the estimated cost.

Mr. Buchanan stated that the real problem at the outlet of this Drain is the backflow from the River and not the flow of water from the upstream lands. In his case, water from his land must flow about 2.5km before it could enter a ditch, and over that distance his contribution would be minimal. In his opinion, the excessive rainfall of 2017 was very unusual and should not be the basis for this proposed major work on the Drain. He suggests that a cost-benefit analysis should have been done as the first step in this process. Furthermore, he suggests that the Province and the City should be paying the total cost of the pumping station and dyke out of regular taxes, as they would for any stormwater management project in the City.

Clifford D. Beatty, Appellant

Mr. Beatty owns a 0.82-hectare rural residential property in the southeast part of the drainage area. While his property has been cleared and his house is located on it, water ponds on it, especially at the rear. Mr. Beatty was also representing his daughter, Amanda Beatty, who owns a similar sized property located immediately south of his; however, her property is completely forested and wet. Their properties are located at the intersection of McCordick and Dilworth Roads and the only outlets they have are the roadside ditches that are always full of reeds that inhibit the flow. They have owned these properties for 14 years. From their observations, the Beattys feel this major project is being driven by a few farmers who wish to reclaim low lying land near the Creek outlet, land that is traditionally prone to flooding particularly in the spring, in order to maximize the use of that land for the production of cash crops. This position is based on the severe rainfall events of 2017 that were in the order of 1 in 100-years and completely atypical. They feel an assessment to their properties for a clean-out of the Drain would be fair, but the assessments for the pump station and dyke are not. The pump station and dyke should be paid for and maintained entirely by the non-wetland properties in the special benefit area.

Phyllis Begg, Appellant

Ms. Begg owns a property of land in the westerly quarter of the drainage area that her family has owned for 40 years and upon which she has lived for 25 years. This property was assessed as 53.71 hectares (132.7 acres) in the Report. She contends that the property area is in error as it should be only 125 acres or 50.58 hectares. The property consists of 25 acres of cleared pasture with the balance being a cedar woodlot and a maple woodlot. Ms. Begg contends that there is very little runoff from her property as it has a low gradient plus the trees absorb a tremendous amount of water and the pasture contains several vernal pools.

Ms. Begg provided photographs of her property from April 2013 illustrating that it was quite dry during a very wet Spring.

According to Dr. MacGregor’s Agricultural Capability Mapping, her land is Class 6, which is poor for agriculture, but a LUF of 1 has been applied to it by the Engineer for assessment purposes, the same LUF as the Class 2 land. She suggests this is not reasonable and her factor should be lower than 1.

Ms. Begg also questions why the two drains that flow southerly connecting the Padden Drain to the River, namely the Hinton and Plunket Drains, are not functioning to reduce the flow to the downstream section of the Cranberry Creek Drain.

Prior to the Court of Revision, she asked the engineer what other alternatives were looked at to solve the problems on this Drain and was advised that there were no others investigated, only pumping. Accordingly, Ms. Begg asks the questions “Why is Cranberry Creek the only drain in the City of Ottawa that requires a pump? Are there no other options?”

In summary, Ms. Begg would like her property area corrected, her assessment lowered, some other drainage solutions investigated and better answers regarding the Hinton and Plunket Drain repairs.

Gary R. Earl, Appellant

Mr. Earl owns a 42.53-hectare (105-acre) property that extends easterly from McCordick Road, completely through Concession 4, to the Fourth Line Road. He uses this property year-round for recreational activities, hunting, firewood harvesting, maple syrup production, nature hiking, etcetera. While all his property is designated as PSW, 6 hectares at the easterly end have been included in the ‘special benefit area’ for the pumping station and dyke. Mr. Earl has owned this property since 2000 and realized that it was a PSW when he purchased it. The vegetation on his property consists of forest lands made up of maple, ash, poplar and alders, as well as wild grapes and cattails. Much of the property is organic soil. The entire property is low and wet with a slope of approximately 0.25 m across the full length such that it floods in both the spring and the fall. This flooding does not bother him as he realizes it is a water storage area and that his wetland filters the surface water and helps to recharge aquifers. As was mentioned in the RVCA letter “… that the intended interference with the wetland’s hydrologic functions could significantly impact related ecological functions…”, he also is quite concerned that these ecological benefits will be destroyed by this drainage project. If the groundwater level through his property was to be lowered by this project, it very likely would have a detrimental effect on his forested land.

Regarding the assessment on his property, Mr. Earl realizes that the LUF factor applied was 0.5 and that his assessment was lowered from $7993 to $3570 by the Court of Revision, but he is still opposed to the pumping station and dyke and does not want to pay toward it. He just does not understand why his property would be assessed a special benefit for the pump and dyke when it is without question a PSW that should not be drained in any way, and he does not want it drained. His property was not assessed for benefit in the 1969 engineer’s report so why is it being assessed for benefit in this Report, he asks.

Mr. Earl questions whether farming should be allowed in the floodplain and the wetland areas. He has noted that 300 to 400 acres of wetland upstream of his property has been cleared within the last two years for farming operations, with which he does not agree. Mr. Earl is in favour of a Drain clean-out and the proposed upsizing of culverts but is opposed to the pumping station and dyke. If the proposed pumping station and dyke portion of the project was to proceed, it is his opinion that the farmland that directly benefits should pay all the costs. Additionally, he is quite concerned about the operational and monitoring costs if the pumping station is constructed.

Based on this evidence, and that of the Appellant Group, Mr. Earl submits that:

1. properties such as his, those that are wetlands and wet forest, are nature’s buffers and should be protected, not drained or cleared, as they have tremendous benefits for the community;

2. an environmental appraisal of this project should have been undertaken;

3. since his property is entirely PSW, it should not be assessed at all into this drainage scheme, either for initial costs or for operation and maintenance of the pumping station;

4. he is quite concerned about the potential effects of the pumping station operation on his PSW property – if the water table is lowered will his trees die;

5. the costs of this project will far exceed the benefits, as explained by Dr. MacGregor;

6. he is also quite concerned about what the final costs will be, if the project proceeds, as there seems to be no control over that;

7. the owners farming in the floodplain should expect to have bad years now and again; and

8. as far as he is concerned, the Drain can be left as is or be cleaned out, but he does not want to see the pumping station installed.

Maya Khulbe, Affected Owner

Ms. Khulbe owns property #218 in the upstream quarter of the catchment, but she is not an appellant. Her property is at the corner of McMullen and Malakoff Roads and is 20.2 hectares or 50 acres in area. The original assessment against this property was $3,286 but was lowered to $1,014 by the Court of Revision. She advises that most of this property is PSW, none of it is used for agricultural purposes, and most of it is covered with bush, yet a LUF of 0.64 was applied to it. She does not feel that her property should be assessed at all for this project and she agrees with the information presented by the previous appellants. She is in favour of a clean-out of the Drain but not the pumping station and dyke.

Carol MacDonald, Appellant

Mrs. MacDonald and her husband Robert own property #228 which is a 1.02-hectare or 2.5-acre rural residential property fronting on McMullen Road near the centre of the catchment area, but on the extreme south side. Their property is approximately 7 km from the proposed pumping station and dyke and about 5 km from the actual Drain. This property was originally assessed $517 in the Report but was lowered to $160 by the Court of Revision. They are part of the Appellant Group and agree with the information presented by other members of that Group.

Mr. and Mrs. MacDonald strongly suggest that a cost-benefit analysis should have been undertaken at the commencement of this process due to the magnitude and complexity of this project.

Mrs. MacDonald advised that the pumping station and dyke are special design considerations or features for those properties directly impacted by the summer water levels in the Rideau River. It follows that these directly impacted properties should be responsible to pay the costs for the pump station and dyke system. In addition, many of those lands are farms that will likely be increased in land value and in revenue from the production of crops, if the pump station and dyke are installed. As well, those lands may receive a substantial government grant and will be able to deduct the remaining costs from their businesses as expenses. In contrast, the lands in the upstream part of the catchment will receive negligible benefit from the pump station and dyke and, in most cases, are being asked to pay for it. Additionally, there will be the operation and maintenance costs of the pump station and dyke that will likely be considerable. Those upstream lands will also have to pay the maintenance costs of the tributary drains, including the removal of many beaver dams. Being subjected to these costs, the upstream lands will likely be reduced in value as potential buyers will be reluctant to accept these unfair and unexpected costs in the future.

Mrs. MacDonald questioned the fairness of using the DF in calculating the assessments. As she understands it, this factor is to reflect “the rate of flow of water” from the tributary lands and, if that is the case, she suggests that using a factor of 0.4 for all the lands more than 1000 m upstream of the upstream end of the Drain is unfair. She has researched other drain reports in the area and the upstream DF has been 0.3 or less in those cases. Additionally, the MacDonalds suggest the split of Benefit Assessment at 25% and Outlet Assessment at 75% for the pump station and dyke is quite unfair. The Benefit Assessment portion should be much higher, possibly 100%, as it was in the 1969 report.

Mrs. MacDonald notes that it took the Engineer three years to prepare this Report and, if the drainage works are built, that likely will not happen until 2020, so, depending on when the Engineer made his cost estimates, they could be 3 to 4 years out of date when the actual construction takes place. In this day of continual escalating construction costs, this could result in significant project cost overruns which is of concern to the MacDonalds.

Mr. and Mrs. McDonald are also quite concerned about the operation and maintenance costs related to the pumping station and dyke as previously described by Dr. MacGregor. Mr. and Mrs. McDonald are also concerned about the current high phosphorous pollution values in the downstream reach of the Drain and the possible increase in those levels if additional intensive agriculture occurs in that area, as previously described by Dr. Wendt.

Finally, Mrs. MacDonald pointed out that the water in the Drain has flowed freely to the River for the past 28 years, so why does it need to change now?

Based on the foregoing information, and that of the Appellant Group, Mrs. MacDonald submits that:

1. many errors and omissions in the Report have been brought to light during this hearing and the Court of Revision which casts doubt on the accuracy of the entire Report;

2. the LUF and DF are not representative of the actual situations;

3. the “assumed’ pump station maintenance costs of $30,000 (which happen to be identical to those in the Monahan Creek Municipal Drain report) are so much less than those estimated by Dr. MacGregor that it makes us very dubious of their accuracy;

4. an analysis should have been done to determine if the benefits are greater than the costs;

5. if the project proceeds, the initial costs and the ongoing operation and maintenance costs will put a financial strain on some property owners and will devalue their lands;

6. the RVCA made it quite clear that the proposed pumping station and dyke will harm the wetlands and the floodplain, both upstream and downstream;

7. if this project proceeds, it will be undermining the Municipal and Provincial policies regarding PSWs and floodplains, and yet the City seems agreeable to contribute an additional $669,300 to make it happen;

8. accordingly, Mr. and Mrs. MacDonald request the Tribunal order that the Report be set aside and all the costs, including those of the engineering firm for the Court of Revision and the Tribunal hearing, be charged to the City;

9. however, if the Tribunal finds that the proposed project should proceed, it is requested that the assessment reasoning in the Report be discarded and replaced with that from the 1969 report and bylaw, and that the City be required to seek watershed landowner approval to proceed, if tendered costs exceed 133% of the estimates in the Report;

10. however, if the Tribunal finds that the clean-out of the Drain should proceed but the pumping station should not, it is requested that all the costs for preparing the Report, and all costs of the engineering firm for the Court of Revision and the Tribunal hearing, be charged to the City;

11. under any circumstance, it is requested that the Tribunal order that the City and the appellants each pay their own costs with respect to the Court of Revision and the Tribunal hearing;

12. the Tribunal is requested to find that the proposed pump and dyke solution is not a reinstatement of that from 1969;

13. under any circumstance, the Tribunal is requested to make it clear that both regulated and unregulated wetlands and floodplains are ‘natural infrastructure’ with values that need to be considered when designing drainage solutions in order to be consistent with Provincial policy.

Marc MacDonald, Appellant

Mr. MacDonald owns and resides on a 77.64-hectare or 192-acre property in the central portion of the catchment on the extreme south side, about 8 km upstream of the proposed pumping station identified as property #225 in the Report. Mr. MacDonald is appealing the assessments against his property and, among other things, the fact that a cost-benefit analysis was not undertaken for this project and that no other alternatives were considered as solutions for this drainage matter. Mr. MacDonald has owned this property since 2005. Mr. MacDonald approves of the evidence of previous experts and appellants and wishes to incorporate it into his presentation. Mr. MacDonald is a consulting professional engineer and a principal in a local environmental consulting firm.

Mr. MacDonald is also representing his neighbours Eric and Shannon Carter who own an 11.75-hectare or 29-acre property immediately east of his property. The original assessment for this property was $2,591 but this was lowered to $799 by the Court of Revision.

Mr. MacDonald advised that a LUF of 0.71 was used by the Engineer to assess his property initially for $13,986, which was lowered to $4,315 by the Court of Revision. Mr. MacDonald disputes this LUF as the Engineer did not take into consideration that 98 acres or 39.75 hectares of his property are registered with the Ministry of Natural Resources and Forestry as a managed forest. Mr. MacDonald produced evidence that confirmed this managed forest area and the fact that 93 acres of his property are classified as PSW. This evidence also indicated that 1 acre of his property is cleared and occupied by his residence and outbuildings. Taking this evidence into consideration, Mr. MacDonald suggests that his LUF should be reduced to 0.58.

Mr. MacDonald also entered evidence entitled “Physical Setting Report” which is available from an online service that he uses professionally to undertake phase 1 environmental site assessments. This document provided detailed information regarding the topography, the soils, the hydrology, the vegetative cover and the geology of his property and the Carter property. This report indicated that virtually all of Mr. MacDonald’s property and the Carters’ property are PSW and wet forested land situated on mostly organic soils. From this evidence Mr. MacDonald suggests that applying a LUF of 1.0 to the forest area is not fair and reasonable and that the LUF should reflect current land use, not what might happen in the future. Accordingly, he suggests that a lower LUF of 0.7 or less should be applied to the wet forest land. Regarding the LUF of 0.5 used by the Engineer for PSW, Mr. MacDonald suggests that this is too high and should be lowered for all the PSW in the drainage area.

Regarding the distribution of the costs between benefit assessment and outlet assessment for the pumping station and dyke, Mr. MacDonald suggests the split of benefit at 25% and outlet at 75% used by the engineer is grossly in error. Significantly more of the assessment should be allocated to benefit. In addition, Mr. MacDonald suggests that using a DF of 0.4 for all the upstream lands is too general and should be reduced. Mr. MacDonald also pointed out that the pumping station proposal does not even address the peak flow expected from the two-year rainfall event and questions such a high cost for such limited capacity.

Regarding the Carter property, Mr. MacDonald advised that Mr. and Mrs. Carter are appealing the LUF of 0.87 that was applied to their property. It is predominantly forest and wetland and the Carters suggest that a lower factor should apply for the same reasons mentioned by Mr. MacDonald.

Mr. MacDonald also mentioned that beaver dams are a significant problem on the Padden Drain and he produced photographic evidence of a very large dam that has existed for over a year, just downstream of his property. Mr. MacDonald also questioned why the Hinton and Plunkett Drains are not utilized to redirect water southerly, directly to the River from this area.

Regarding the issue of the managed forest, Mr. Robinson suggested that this evidence was not presented to the Court of Revision; otherwise, the LUF for the MacDonald property would have been changed when the decision of the Court was implemented. Based on the current evidence, Mr. Robinson is suggesting reducing the LUF to 0.61 with which Mr. MacDonald agreed.

Gordon Crawford, Appellant

Mr. Crawford and his wife own a 1.05-hectare or 2.6-acre rural residential property in the downstream half of the catchment, close to the north watershed boundary, where they have lived for 43 years. Their property was originally assessed $488 by the Engineer, but this was reduced to $120 by the Court of Revision.

They agree with the information presented by other members of the Appellant Group and the expert witnesses. The drainage of their property is very good at the present time as they are located on a drumlin and they have 20 mature maple trees on their property that use 100 gallons of water per day, thereby significantly reducing any runoff from their land. There is no surface water flow off their property during the summer.

They do not wish to subsidize those landowners who are trying to farm floodplain and wetlands. The pumping station that was installed after the 1969 report was paid for by the lands close by that were going to use it and that should be how this project is assessed. Mr. Crawford understands that the Drain could be cleaned out under present conditions by excavating machines on mats with as much as 1 mile being cleaned in three days. He suggests that the Drain be cleaned out in this manner before making a decision regarding the pumping station. If the pumping station and dyke are installed, the Crawfords would be very concerned about the operating and maintenance costs that would have to be paid by the assessed lands.

Charles Alan Ham, Appellant

Mr. and Mrs. Ham own and reside on a 10.15-hectare or 25-acre property in the mid-portion of the catchment, close to the north watershed boundary. Their property was assessed $1724 in the Report, and that was lowered to $532 by the Court of Revision. They are part of the Appellant Group and agree with the evidence put forward by the Group and the expert witnesses.

Their property is well drained and consists of their residence and surrounding yard, a 10-acre hay/pasture field, some forest land, and an area of reforestation containing 5500 trees. There is a very low area in the northwest corner of the hay field that has no discernible outlet to any ditch, plus there is a vernal pond toward the rear the property. Otherwise, no water is artificially caused to flow off their property. Their property does not have a high water-table. Accordingly, it is Mr. Ham’s opinion that their assessment should be zero.

Mr. and Mrs. Ham feel the Report is deficient as it does not contain a cost-benefit analysis, no options or alternatives are provided, and operating and maintenance costs have not been included. Furthermore, they do not agree with the proposal to drain the floodplain lands and adjacent wetlands.

Mr. and Mrs. Ham request the Tribunal to set the Report aside and assess the costs to date to the City or, as a minimum, to delete the pump station and dyke from the proposal.

David and Bronwyn Harper, Appellants

Mr. and Mrs. Harper own and reside on a 42.1-hectare, or 104-acre, property, very close to the south watershed boundary, in the downstream quarter of the drainage area. Their property was originally assessed $16,742 by the Engineer, and this was lowered to $9,516 by the Court of Revision, which includes a special benefit assessment of $6,649 for the pumping station and dyke. The Engineer applied a LUF of 0.96 to their property.

They submit that their property consists of 16.4 hectares of wetlands (some of which is PSW), 7.6 hectares of Christmas tree plantations, 3.1 hectares of open fields, with most of the remaining area being wooded, with the exception of the area around their buildings. They advised that they concur with the evidence submitted by the Appellant Group and will be relying on it and the City’s exhibits when presenting their argument. In addition, Mr. and Mrs. Harper introduced six maps and aerial photos of their property and the draft September 4, 2014 minutes of the City’s Agricultural and Rural Affairs Committee as exhibits. Relying on their map exhibits, they suggest that the easterly portion of their land drains east and south toward Highway 416, not north into the neighbouring Severn property. They advised that their property is over 3.5 km from the proposed pumping station and dyke.

Considering this evidence, and that of the Appellant Group, Mr. and Mrs. Harper submit that:

1. this Report should be set aside, and the City should pay all costs to date as the proper processes were not followed when initiating this project;

2. since their property was not assessed for benefit in the 1969 or the 1971 reports, and since it is over 3000m from the site of the proposed pumping station, and since their property does not abut or directly outlet into the Drain, and since it is not tile drained, if this project proceeds, their property should not be assessed for pump station special benefit;

3. since there is a discrepancy in the flow pattern on their property between their mapping and that of the Engineer, if the project proceeds, the Engineer should make an on-site inspection to resolve this issue;

4. applying a LUF of 1.0 to the forested area, the reforested/plantation area and the non-PSW area of their property is not fair and reasonable, therefore, if the project proceeds, the assigned LUF of 0.96 for their property should be significantly reduced;

5. if the project is allowed to proceed, the City should be ordered to pay all costs associated with the proposed pump and dyke system, or implement some kind of user-pay system for the tile drained properties to support the massive upgrade proposed and the future operation and maintenance costs because the City failed to maintain the former pump and dyke structure and allowed it to fall into disrepair;

6. the Engineer cites modern farming practices as the reason for the need for a new pumping station with a massive increase in pump size while, in fact, it is due to a few area farmers clearing and draining more and more land, most of which was bush that once held water and slowly released it into the streams and ditches, and much of which is too wet for crops, therefore, if this project is allowed to proceed, those properties that have caused this significant increase in water volume should be assessed the resulting costs, not the neighbouring non-agricultural and forested lands.

Jacqueline Leger, Appellant

Ms. Leger owns and resides on the north half of Lot 2 in Concession 3 of the geographical Township of Marlborough, which consists of 40.47 hectares, or 100 acres, and is located in approximately the centre of the drainage area, toward the north side. Her property is property #181 on the Engineer’s plan and it is all forested, including some wetland, an intermittent watercourse, a portion of the Trans Canada gas pipeline right-of-way, and a small cleared area around the house and barn. The property is approximately 6 km upstream of the proposed pump and dyke system. The Engineer used a LUF of 1.0 to calculate an assessment of $10,260 for her property which was lowered to $3166 by the Court of Revision. She contends that this LUF is much too high, resulting in her assessment being too high, and that there is no water that is artificially caused to flow from her property. Ms. Leger is part of the Appellant Group and concurs with the evidence provided by that Group and wishes to incorporate it into her evidence.

Ms. Leger has spent much time trying to analyse and understand the Engineer’s assessment method but cannot seem to do so and does not agree with it. Furthermore, she does not agree with the Court of Revision decision that the municipalities were negligent in the past nor that the Ministry of Transportation should bear such a tremendous increase in assessment; accordingly, she wishes to appeal the Court of Revision decision. From her review of the 1969 report versus the current Report, she considers the assessment reasoning followed in the 1969 report to be much fairer and more reasonable. Additionally, she is quite concerned about the operation and maintenance costs and feels the assessment schedule for maintenance of the pumping station is unfair because most of that would be charged to the upstream lands. Ms. Leger is also concerned that a cost-benefit analysis was not undertaken for this project and should have been as, from her analysis, the benefits of the pump and dyke system do not outweigh the costs.

Based on the foregoing information, and that of the Appellant Group, Ms. Leger submits that:

1. the Report should be set aside and all costs to date assessed to the City; however, if this is not done and the project is going to proceed in some manner,

2. a cost-benefit analysis should be undertaken before it proceeds; and

3. someone should explain the difference between ‘artificially caused to flow’ and ‘naturally caused to flow’ to the Engineer, so that the assessment reasoning can be totally revised; and

4. the LUF applied to her property should be lowered due to her forested area and her assessment should be lowered considerably; and

5. no one has any idea as to how many farmers in the drainage area are actually in favour of this project – it may be just a vocal few; and

6. undertaking this project under s. 78 of the Act is unfair as it has effectively ‘hijacked’ the opportunity for the landowners to ask themselves the question “is this expense worth it to me?”; and

7. assessing the drain cleanout portion of the project at 10% benefit and 90% outlet is completely unfair; and

8. the Act leans toward fairness and this entire project and the assessments are clearly unfair; and

9. the pump and dyke installation proposed is clearly not a reinstatement – it is a new project and should be treated as such under s. 4; and

10. the decision of the Court of Revision to transfer almost $800,000 to the City and MTO was clearly done to try and dissolve the opposition to the project, so she appeals that decision and asks the Tribunal to reconsider it.

Scott Carrigan, Appellant

Mr. Carrigan and his sisters, Wanda Bracken and Sandra Lueck, own a 32.56-hectare or 80-acre vacant property at the extreme west edge of the drainage area. Mr. Carrigan advised that this property consists of wet forested land and a pond, and that he and his sisters are part of the Appellant Group and they concur with the evidence provided by the Group and wish to incorporate it into their evidence.

Mr. Carrigan advised that the Engineer erred in his original assessment calculations by including all their property within the drainage area when, in fact, only 23.07 hectares should have been included. This error was corrected by the Court of Revision and, when taken into consideration with the other parts of the Court’s decision, their assessment was lowered from $8,255 to $1805, but this was still using a LUF of 1.0, which Mr. Carrigan wishes to appeal.

Mr. Carrigan introduced an exhibit that included five pages of maps of the subject property and advised that there is a ditch running along the east side of the property that collects the water from the southerly portion and conducts it out of this watershed, such that his affected area should be further reduced; however, he did not have a survey of any kind to confirm the ditch. Since the small area at the north end of the property that might remain within the drainage area is wet forested land, he suggests that the assessment against it should be lowered to zero.

Mr. Carrigan indicated that their property is 8.5 km from the upstream end of the Drain and 12 km from the site of the proposed pump and dyke. Accordingly, he does not feel that their property should be assessed any cost toward the proposed pump and dyke.

Based on this evidence, and that of the Appellant Group, Mr. Carrigan submits that:

1. due to the fact that the affected area of this property was incorrectly determined three times by the Engineer, and that three properties were assessed that shouldn’t have been assessed, and the fact that the affected area of an adjacent property was also incorrectly determined, there is strong potential for there to be similar discrepancies and errors throughout the Report, drawing into question the overall methodologies, assumptions, and calculations within the Report;

2. there was a failure on the part of the City and the Engineer with regard to process, stakeholder engagement and communication as the benefits, costs and environmental impacts of the proposed project were not adequately, openly and transparently communicated to all property owners early in the process;

3. the benefits to be derived from the proposed project are not commensurate with the estimated cost thereof;

4. the broadening of the drainage area from that shown in the 1969 report is questionable;

5. there is evidence of negligence by the City regarding previously not properly maintaining the Drain, the dyke and the pump;

6. the Report provides only a single solution to an inadequately defined problem;

7. the methodology used to generate assessments is flawed;

8. the assessment made to his property for the construction is not in any way commensurate with the contribution of water from his property;

9. the unspecified future financial obligations are of great concern; and

10. for all these reasons, he requests that the Tribunal set the Report aside and assess all costs to date to the City.

Shannon Storie, Appellant

Mrs. Storie and her husband have owned a 20.23-hectare, or 50-acre, property located in the southerly half of the upstream part of the drainage area since 2010. They have a house, a small area of lawn around it and a driveway, but otherwise the property generally consists of 50% PSW and 50% wet forested land. The LUF applied to their property by the Engineer is 0.70 and they appeal this as they feel the 1.0 factor for wet forested land is too great.

They are part of the Appellant Group and they concur with the evidence provided by the Group and wish to incorporate it into their evidence.

Mr. and Mrs. Storie appeal their assessment toward the proposed pump station and dyke but are in favour of a clean-out of the open Drain.

Dwight Foster, Affected Landowner

Mr. Foster is a sixth-generation farmer in this North Gower area. He owns four properties within the Cranberry Creek drainage area totaling about 450 acres as well as some properties in two adjacent watersheds, the Stevens Creek and the Mud Creek. In total Mr. Foster owns and farms 4,000 acres and rents and farms another 3,000 acres. While the drainage in the Stevens Creek and Mud Creek watersheds is good, the flow in Cranberry Creek is quite poor, the poorest in the township. The Stevens and Mud Creeks do not have pumped outlets as the land there is higher, whereas the Cranberry Creek drainage area is lower and flatter.

All his land is tile drained, but it is not as effective as it should be in the Cranberry Creek watershed due to the lack of maintenance of the downstream section of the Drain. The land that he owns in this drainage area is a small portion of the total area that he farms. It is his opinion that the dyke and pump must be installed to allow proper maintenance of the Drain. The major flood events in recent years were in 2013 and 2017 but, due to the terms of the crop insurance policies, he was not able to receive any compensation for the flood damage done to his land in this watershed.

Upon questioning, Mr. Foster confirmed that he had more than 150 hectares (370 acres) of land flooded in 2017 resulting in a loss of hundreds of thousands of dollars in crop value. He advised that it costs him $300 to $400 per acre to plant a crop and, in a good year, he might gross $1,000 per acre. Upon further questioning, Mr. Foster advised that he has obtained an average yield from his four properties every year except in 2013 and 2017 and he has been able to seed his land “on time” every year. He also advised that he was aware of the limitations of these properties when he purchased them. Upon further questioning, Mr. Foster advised that it is his understanding that the proposed improvement work on the Drain will significantly reduce the flooding that occurred in 2013 and 2017.

When questioned, Mr. Foster advised that he knows that clear cutting of forested land has been undertaken in this drainage area during the last 5 to 10 years and is currently ongoing to create more agricultural land.

Greg Foster, Affected Landowner

Mr. Foster and his family have been farming in this area for 49 years. He is a brother of Dwight Foster and they jointly own one property within the drainage area. In addition, he owns one other property on the extreme north edge of the drainage area, very close to the downstream end of the Drain. Both of these properties are tile drained and eventually outlet to the Cranberry Creek Drain. He also mentioned that he owns a property immediately north of the drainage area boundary, at 6864 Third Line Road, that he has tile drained southerly into the Cranberry Creek drainage area. This property has not been identified or assessed by the Engineer.

Mr. Foster and his family are in the horticultural sector of agriculture and grow perennial crops that demand good drainage. He points out that the road system also requires good drainage; therefore, the drainage systems must be properly maintained to preserve all of this infrastructure, agricultural lands, non-agricultural lands and the City’s roads, but, this has not been the case with the Cranberry Creek Drain – it has been out of repair for many years. Accordingly, he is strongly in favour of the proposed project to maintain the Drain. He suggests that, if the Drain had been in proper operating condition in the past, the floods of 2013 and 2017 would not have been as severe as they were.

Upon questioning, Mr. Foster advised that he has not done any clear cutting of forested properties to convert the land to agriculture. He also advised that irrigation is important for his horticultural crops in dry times of the year. He agrees with his brother regarding crop insurance but advised that input costs for his strawberry crop are in the order of $1,000 per acre. His land does not “flood” due to the condition of Cranberry Creek Drain; rather, it is very slow draining due to the poor condition of the Drain.

Tim Woerlen, Affected Landowner

Jointly with his brother, Mr. Woerlen owns two properties within the special benefit area of the watershed. Both these properties are about 20.2 hectares or 50 acres in size, both have the Sheppard Branch Drain passing through them and one has the Cranberry Creek Main Drain passing through it, as well. Mr. Woerlen classifies himself as a “first generation farmer” who purchased these properties in 2005 and has farmed them as a full-time job since then. He tile drained the property in 2006. As these properties are directly adjacent to these two open Drains, having the Drains in proper repair so that they provide a good outlet for his tile drainage system is very important. Under present conditions, his land adjacent to the Sheppard Branch Drain floods regularly after heavier rainfall events and, in 2013, he lost 60% of his crop on that property and somewhat less in 2017. Accordingly, he is strongly in favour of this proposed drainage project and wants it to proceed as soon as possible. He expects it to prevent his property from flooding.

Upon questioning, Mr. Woerlen advised that he is not aware of the extent of the floodplain in the area of his property but expects some of it is designated. Also, a portion of the property is PSW, but it is not farmed. He farms only 40 acres of his 100-acre property. Upon reviewing Exhibit #26, it was revealed that all of Mr. Woerlen’s property is within the “regulated area” established by the RVCA. Upon further questioning, Mr. Woerlen advised that, in the 13 years he has been farming this land, he has had 3 very bad years where he has lost about 50% of his crop, 3 very good years where he hasn’t lost any crop, and 7 average years where he has lost 5% to 10% of his crop, all due to flooding.

Johnathon Woerlen, Affected Landowner

In addition to the property owned jointly with his brother Tim, Mr. Woerlen owns four properties in the downstream section of the drainage area, two of which are entirely within the special benefit area and two that have rather small portions within the special benefit area. The total area of these properties is about 170 hectares or 419 acres with about 300 acres worked. Parts of two of the properties contain PSW. The Sheppard Branch Drain runs along the entire north side of one property and the Cranberry Creek Drain runs along the east side of one property, for a short distance, in the PSW area. Mr. Woerlen is a “first generation farmer” who purchased his first property in this area in 2007 and has farmed them as a full-time job since then. His main crops are corn and soy beans and, due to poor drainage, he is usually one week late planting his crops; however, his main drainage problem is the flooding that occurs after significant rainfall events in late May and June when the drains do not remove the high flows and some of his land is flooded, up to six inches in depth for up to four weeks, resulting in full crop loss, such as in 2013 and 2017. Accordingly, this proposed drainage project is very important to him and he wishes to see it proceed, as proposed, as soon as possible.

Upon questioning, Mr. Woerlen advised that much of his land was in hay when he purchased it and that he has cleared trees from some of his land since purchasing it. Upon further questioning, and upon reviewing Exhibit #26, it was revealed that all or significant parts of Mr. Woerlen’s properties are within the “regulated area” established by the RVCA, a fact that Mr. Woerlen did not seem to be aware of. Upon reviewing Exhibit 41, Mr. Woerlen conceded that he was not exactly aware of how much of the cost of the pumping station and dyke has been assessed to other lands and other taxpayers beyond the special benefit area.

William Mackey, Appellant

Mr. Mackey represented himself and his brother Wayne. They both own land in the upstream half of the drainage area. They are both part of the Appellant Group and concur with the evidence provided by that group and wish to incorporate it into their evidence.

Wayne Mackey’s property is 39.25 hectares or 97 acres in size and consists of 20 acres of cleared, underdrained land used to produce hay by a tenant, with the remaining 77 acres being forested. Mr. Mackey resides on this property and is interested in providing wildlife habitat and protecting wetlands. The McFadden Drain crosses the full width of the property. The LUF applied to the property by the Engineer was 1.0 and the original gross assessment was $9,951, which was lowered to $3,070 by the Court of Revision.

William Mackey owns two properties, which are adjacent, a 41-hectare or 97-acre property consisting of about 53 acres of forest, 30 acres of wetland swamp and 14 acres of hay fields used by a tenant, plus a 1.22-hectare or 3-acre property upon which his house is located. The swamp is habitat for many species of waterfowl. In 1981 the RVCA prepared a management plan for his forested land and planted many trees. He has followed that plan since then and has planted many more trees on his own. Mr. Mackey provided evidence that all of his larger property is registered with the MNRF as “Managed Forest” and, as such, he suggests the LUF applied to it should be reduced from 1.0.

The McFadden Drain also crosses the full width of his larger property and was obstructed by as many as fifteen beaver dams in this area for many years, so much of the land has become wetland during that time, with very little flow moving downstream to the Cranberry Creek Drain. However, in the last few years, farmers have purchased some of the neighbouring forested properties and have clear cut them and want to drain them, so they requested a clean out of the McFadden Drain, which was done recently, including across his property. Also, the Nobel Fee Branch, that crosses the road close to his house and runs along the west side of his property, was cleaned out to drain one of these recently cleared properties. In all, Mr. Mackey pointed out at least six properties within the drainage area that have been clear cut, drained and put into agricultural production within the last few years, including some PSWs. This clearing and drainage work have recently taken place on property #169 and, as a result, he suggests the drainage area boundary thereon is now incorrect and should be changed. He provided recent photographs of some of these properties and the open drains that have been dug to provide them with outlet. He is quite concerned that many hundreds of acres of wetlands are being clear cut and drained, thereby reducing the natural water storage in the drainage area.

He and his brother are opposed to the proposed pump and dyke as it will adversely affect the wetlands in the drainage area and will not provide any benefit to their properties; however, they are in favour of a clean-out of the main Cranberry Creek Drain.

Upon questioning, Mr. Mackey acknowledged that any water from his property or his brother’s property that finds its way to the McFadden Drain will eventually flow into the Cranberry Creek Drain.

Linda Darlene Nichol, Appellant

Ms. Nichol owns a 11.75-hectare or 29-acre property, approximately in the middle of the drainage area, but on the extreme south edge. She has owned the property since 1974 and resides thereon. The LUF applied to the property by the Engineer is 0.83. She is part of the Appellant Group and concurs with the evidence provided by the Group and wishes to incorporate it into her evidence. She appealed her assessment to the Court of Revision, but her appeal was dismissed. Her original assessment was $2,464 but was lowered to $760 by the Court of Revision.

The John Paden Drain crosses the full width of her property. Ten acres of her property is registered as PSW with the RVCA for which she receives a small property tax credit, but she feels she is at risk of losing that due to this proposed project. She is quite concerned about the damage that this project will do to the wetlands and the wildlife that inhabit them. To her knowledge, the operating and maintenance costs of the pumping station have not been estimated by the Engineer but, if they are as high as estimated by Dr. MacGregor for just one pump, she will not be able to afford her share and they will be even higher if a second pump is installed. In her opinion, the costs of this project far outweigh the benefits. It is her opinion that the Report should be set aside and all costs to date assessed to the City. If that does not occur then, because the assessment reasoning is flawed, all the costs of the pump and dyke should be assessed to the agricultural properties in the special benefit area.

Ms. Nichol agrees that the Cranberry Creek Drain requires a clean-out, and has for many, many years, but has been ignored by the City. Accordingly, she suggests that the City should pay all the costs of the cleanout.

Upon questioning, Ms. Nichol advised that she was not aware that an estimate of operating and maintenance costs was prepared after the Court of Revision.

Susan Nichol, Appellant

Susan Nichol was not able to attend the hearing; however, Linda Darlene Nichol read a statement for her that contained the following information.

Ms. Nichol owns property #234, which was assessed for 18.82 hectares, or 46.5 acres, and is located approximately in the middle of the drainage area, but on the extreme south edge. She has owned the property since 1974 and resides thereon. The LUF applied to the property by the Engineer is 0.83. She is part of the Appellant Group and concurs with the evidence provided by the Group and wishes to incorporate it into her evidence. She appealed her assessment to the Court of Revision, but her appeal was dismissed. Her original assessment was $3,955 but was lowered to $1,220 by the Court of Revision.

When she purchased her property it contained significant wetland and a pond, which she enjoyed very much due to the wildlife that flourished there; however, since the Paden Drain was cleaned out, the pond has dried up and the wetland has been adversely affected, which displeases her. The property does not have any flooding problems and the proposed work is of no benefit to her property whatsoever.

She feels the costs of this project are much greater than the benefits to be derived. The assessment method is faulty as it results in over-assessing nonagricultural land. She suggests that all costs of the pumping station should be paid for by the agricultural land in the special benefit area.

As the Cranberry Creek Drain has required a clean-out for many, many years, but has been ignored by the City, she suggests that the City should pay all the costs of the clean-out.

Owen Severn, Appellant

Mr. and Mrs. Severn own a 22.06-hectare or 54.5-acre property, all of which is located within the extreme southeast part of the drainage area and 19.35 hectares of which has been included in the pump station benefit area. The Court of Revision amended the total area of this property from 22.94 hectares to 22.06 hectares and confirmed that 14.25 hectares of the property is designated as PSW, that is 65% of the property. The Paden Drain diagonally crosses the extreme west end of their property. Mr. and Mrs. Severn have owned the property for 30 years and reside thereon. Their residence is located high and dry on a drumlin and their sump pump never operates.

The LUF applied to the property by the Engineer is 0.68. Mr. and Mrs. Severn are part of the Appellant Group and concur with the evidence provided by the Group and wish to incorporate it into their evidence. They appealed their assessment to the Court of Revision, but their appeal was dismissed. Their original assessment was $11,165 but was lowered to $7,727 when the Court of Revision made the large assessments to the City and the MTO.

The property includes two drumlins that are completely forested, are much higher than the wetlands and do not require any artificial drainage. The westerly drumlin area of approximately 2.71 hectares is correctly excluded from the pump station benefit area but the easterly drumlin area is incorrectly included in the pump station benefit area and should be removed therefrom. This is also the case with the neighbouring property to the south, the Harper property.

Mr. Severn has some serious questions about the logic behind the assessment reasoning provided by the Engineer, specifically relating to the LUF such as, applying a LUF of 0.5 to PSW rather than zero, considering forested land in the same manner as agricultural land, the sub-sectioning of drain sections when calculating maintenance assessments, and the use of ‘distance factors’ in calculating outlet assessments.

Concerning the information meeting called by the City Drainage Superintendent to review the Engineer’s final draft Report on December 6, 2017, neither the draft Report nor any other information was provided in advance, so it was not possible for Mr. Severn or any other landowners to be prepared to make any knowledgeable or critical observations or comments at that meeting. In the September 4th, 2014 staff report to the City’s Agriculture and Rural Affairs Committee and Council, reference is made to a preliminary Report and cost estimate to reinstate an enhanced dyke and pump system being presented to the landowners at an informal residents meeting on May 1, 2014 at which time “… those in attendance expressed support to proceed with a formal Engineer’s Report.” Mr. Severn was not invited to that meeting, so did not attend it, has never seen the preliminary Report and, if he had been there, he would not have supported it.

Mr. Severn referred to the 1969 and the 1991 engineer’s reports noting that his property was not assessed for benefit in either report. He further noted that the 1991 report was prepared by Mr. Robinson.

Mr. Severn referenced a CTV news report from September 2018 wherein the Insurance Bureau of Canada called for “urgent action” when it comes to preserving Canada’s wetlands as a way of limiting flood risk. In addition, he referenced the publication A Wetland Conservation Strategy for Ontario 2017 – 2030 wherein it is stated that “In southern Ontario, wetlands act as natural infrastructure -- producing at least $14 billion in economic benefits each year for Ontarians.”

Mr. Severn indicated that he was aware of commitments made in June 2013 by the local MP and MPP that they would follow up with Parks Canada regarding the backflow of River water into the Cranberry Creek Drain but, in spite of numerous attempts, he was never able to obtain a response from these Members. Mr. Severn also draws attention to a June 2013 Ottawa Citizen newspaper article wherein the Parks Canada Director of Ontario Waterways is quoted as saying that the River water is not holding back drainage from the farmland and that federal law will not allow Parks Canada to drop the River water level below the normal summer level.

Mr. Severn drew attention to the Land Evaluation and Area Review score for his property which is 60 out of 200 which is well below the 130 score that indicates that a property is suitable for agricultural operations. He concludes that, since his property is not suitable for agriculture and he does not have any drainage problems with his residence, the proposed drainage works are of no benefit to his property.

Mr. Severn also referred to the recent OMAFRA publication 852 A Guide for Engineers working under the Drainage Act in Ontario wherein it is stated that when making a decision on improving a drain: it must be fair and reasonable; Council should be aware of any alternatives; Council should have consulted all persons to be assessed regarding the alternatives and estimated costs; the overall soundness of the alternatives should be weighed and compared; and there should be at least an informal benefit – cost consideration. Mr. Severn suggests that most of these recommendations were not followed with this proposal.

Mr. Severn referred to the letter he received from the MNRF regarding the fact that some of his property is designated as PSW and is therefore eligible for tax exemption under the Conservation Land Tax Incentive Program. Specifically, in this letter it is stated that “Protecting this land contributes to the province’s biodiversity and helps conserve Ontario’s natural heritage”, which he suggests indicates the Province’s strong recommendation to preserve wetlands, not to clear and drain them.

Based on this evidence, and that of the Appellant Group, Mr. Severn submits that:

1. the process followed in the preparation of this Report did not properly and adequately inform all affected owners as to the financial impact, such that landowner participation was encumbered;

2. the Report does not provide anything to indicate that the benefits accruing are commensurate with the estimated costs, either for the total project or for the Severn property;

3. the Report fails to provide any estimate of annual or lifetime operational costs of the pumping station;

4. the Engineer has not been able to advise him as to what kind of specific or general benefit his property will receive from the proposed project;

5. according to the City’s 2016 Land Evaluation and Area Review, the Severn property has no reasonable capacity for agriculture, but the Engineer cannot tell him why the property has been assessed for benefit;

6. the lands that are affected by the summer River water levels should be assessed a much larger share of the cost of the pumping station;

7. no benefit, special or otherwise, has been properly or adequately defined for the Severn property in the Report, therefore, it cannot be assessed for any type of benefit, and was not in the 1969 or the 1991 reports;

8. the proposed drainage solution is not fair to all and the process has not been fair and democratic, as espoused in OMAFRA documents, therefore, the Report is defective;

9. the Tribunal is asked to conclude that the Report is seriously flawed and, as a result, the conclusions are not acceptable;

10. the Tribunal is asked to set the Report aside and assess the costs to date entirely to the City;

11. the Tribunal is asked to order that, if a new Report is to be prepared, the process be directed to examine the needs and objectives of all of the landowners in the drainage basin and be closely managed by qualified City staff or a third-party consultant; and

12. the Tribunal is asked to order that, if a new Report is to be prepared, alternative solutions be presented, with comparative costs estimates and benefits, for discussion and consideration in a democratic process.

Jim Pantalone, Appellant

Mr. Pantalone and his wife Donna own the most upstream property in the drainage area, being part of Lot 13, Concession 2, in the geographic Township of Marlborough, on the west side of Harnett Road, a distance of approximately 8.6 km from the upstream end of the Drain and 12.0 km from the site of the proposed pumping station. Mr. Pantalone’s property is 94 acres or 38.04 hectares in total area and originally this entire area was included in the drainage area and was assessed $9,644 for the project; however, after his appeal to the Court of Revision, his affected area was reduced to 11.40 hectares or 28 acres and his assessment was correspondingly reduced to $892. The Pantalones have owned this property since 1985, that is for 34 years.

Mr. Pantalone provided photographs of water standing in the west roadside ditch north of his driveway to indicate that the runoff from the north part of the assessed portion of his property cannot flow easterly toward the Cranberry Creek Drain because it is trapped there, with no cross culvert to carry it through Harnett Road. His photos also indicated that this ditch is 26 inches in depth in relation to the centerline of the road. Furthermore, he does not have a culvert through his driveway so that this water cannot flow southerly in the ditch. However, there is a 12-inch diameter culvert through the road in the south part of the assessed portion of his property through which water can flow easterly toward the Cranberry Creek Drain, but this occurs only in very wet conditions, such as spring and fall, and it does not flow directly to the Templeton Branch of the Paden Drain as it stagnates and soaks away on the Carrigan property before it reaches the drain. Mr. Pantalone also provided photographs of a 4-foot diameter culvert that exists through Harnett Road, closer to the intersection with Paden Road, that conducts water easterly from a large swamp area in the south part of his property into a ditch that flows in a south-southeast direction directly to the Rideau River, not into the Cranberry Creek watershed. This information indicates that the watershed boundary may be slightly in error in this area.

Based on this evidence, and that of the Appellant Group, Mr. Pantalone submits that:

1. this proposed project is not maintenance or a reinstatement, it is a massive improvement of the pumping station strictly for the benefit of the downstream agricultural lands and will not benefit his property in any way or most of the properties in the watershed;

2. he understands that the old open Drain requires a clean-out and he is not opposed to that being done;

3. even though Mr. Robinson wrote the last report on the Paden Drain in 1985 and assessed his property for only 11.4 hectares, it was originally assessed for 38 hectares in this Report, which he suggests was a rather gross error but, upon his appeal that was corrected by the Court of Revision;

4. however, despite his 34 years of observation that the water flow from his land does not make its way to the Templeton Branch of the Paden Drain, Mr. Robinson is ignoring this advice and is still assessing his property into this project;

5. he appreciated the survey crew attending this area on September 18th, but they did not do enough work to fully investigate his claim of minimal or no flow to the Cranberry Creek;

6. if any water does flow toward the Drain it will never get to the proposed pumping station during the pumping season so his land should not be assessed any of that cost;

7. his property should not be assessed for this project;

8. the proposed project does not make any economic sense;

9. there have been many errors found in this Report by the landowners and others and these bring the entire Report into question; and

10. he requests the Tribunal to set the Report aside.

Stephane Maynard, Appellant

Mr. Maynard and Martine Rochon own an 11.48-hectare or 28-acre property, generally in the centre of the drainage area, but close to the north edge. Sixteen acres of their property are cleared, underdrained and used for agricultural purposes. His original assessment was $1,950 which was lowered to $602 by the Court of Revision. The LUF applied to his property by the Engineer is 1.0. They are appealing under ss. 48(1) (a) and ss. 54(1) of the Act. They are in favour of the proposed clean-out of the Drain but object to the proposed pumping station and suggest it be cancelled.

From his research, Mr. Maynard suggests that: the costs of the pumping station portion of this project far exceed the benefits to be derived; the benefit/outlet assessment split for the cost of the pumping station is grossly in error as the benefit assessment for it should be 100% rather than 25%; the 1998 paper, Drainage Assessment Revisted, by E. P. Dries, P. Eng. and H. H. Todgham, P. Eng. O.L.S., (the “Dries & Todgham paper”) indicates that a pumping station is “a benefit” to the lands adjoining the Drain (item 8, page 9); everyone should be concerned that ecologically valuable wetlands and woodlands will likely be cleared for agricultural purposes if this project proceeds as proposed; the $30,000 estimate of annual operating and maintenance costs of the pump station is too low; the culvert under Mackey Road that his property has to use for outlet is not low enough to provide his tile drainage system with proper outlet, as his tile drain outlet is 1.5 feet below the bottom of the culvert, and the Drainage Superintendent told him that it cannot be lowered further; since his drainage outlet is impaired, his LUF should be much lower than 1.0; the portion of the Staidler Municipal Drain that his property could drain to was abandoned by the City in 2017; his southerly neighbour dug a shallow private ditch to the Staidler Drain in the fall of 2017, otherwise his property would have no outlet at all; his property has a significant vernal pool in the wooded portion that contains standing water well into June; approximately 20% of their property is non-evaluated wetland as shown on the MNRF Natural Heritage Area mapping, accordingly, the LUF for their property should be less than 1.0; the drainage area boundary established by the Engineer does not agree with the boundary shown on the MNRF Ontario Flow Assessment Tools mapping and he questions why there is a discrepancy, that is, which one is correct.

Mr. Maynard pointed out that properties #115, #121, and #122 are all designated as PSW but, they have been cleared, drained and are being used for agriculture, yet LUF’s of 0.80, 0.81 and 0.77 respectively have been applied to them. He suggests that these properties should have a LUF of 1.0 applied to them.

Debbie Scharff, Appellant

Mr. and Mrs. Scharff own two properties within the drainage area, property #161 is 48.6 hectares or 120 acres in area and is completely within the watershed, and property #192 was originally 23.06 hectares or 57 acres in area but the Scharffs recently sold 5 acres, (which is not shown on the Plan as it was severed since the Plan was prepared) and only part of that property is within the drainage area. In the Report, property #192 was assessed for 20.23 hectares but that area was reduced to 17.83 hectares, or 44 acres, by the Court of Revision. These properties lie on the north and south sides of Mulholland Road respectively, in the extreme northwest part of the drainage area, approximately 8 km from the upstream end of the Cranberry Creek Drain and 11.5 km from the proposed pumping station. The Scharffs are part of the Appellant Group and concur with the evidence provided by the Group and wish to incorporate it into their evidence. They are appealing under ss. 48(1) (a)(b)(c) and ss. 54(1) of the Act.

The original assessment on property #161 was $12,321 which was lowered to $3,433 by the Court of Revision, while the original assessment on property #192 was $5,129 which was lowered to $1,395 by the Court of Revision. The LUF originally applied to both these properties by the Engineer was 1.0 but, for property #161, it was lowered to 0.9 by the Court of Revision.

Mrs. Scharff provided the following information in her testimony:

• the communication by the City to the affected landowners has been poor throughout this process;

• properties #161 and #192 are ecologically identical to the Marlborough Wetland Complex, which is located just to the west, and may even be part of that Complex as it is only Harnett or Gallagher Road that separates them;

• they purchased these properties in 2013 because they are natural areas and can be used for outdoor recreation and provide significant wildlife habitat;

• property #161 is 30% forested and 70% wetland due to a Ducks Unlimited weir that creates a very large flooded area;

• the Engineer was not aware of this weir and flooded area before preparing the Report and after becoming aware of it he recommended to the Court of Revision that the LUF be lowered, but it was lowered by only 0.1 to 0.9, which is still much too high, as it should be 0.5;

• property #192 is entirely a low, wet forested area with no watercourse of any kind on it so its LUF should be much lower than 1.0;

• exhibit #24 indicates that the soil capability for agriculture on these properties is mostly 6, possibly with some 4 and organic soil as well, none of which are suitable for agricultural operations; and

• they had significant trouble selling the house and barn on property #192 due to the potential costs of this drainage project; and

• she and her husband ask the Tribunal to set the Report aside and assess all the costs incurred to the City.

Susan Muehlherr, Appellant

Mrs. Muehlherr and her husband Peter own property #193 which is 20.23 hectares or 50 acres in area and is completely within the watershed. This property lies on the south side of Mulholland Road, in the extreme west part of the drainage area, approximately 8 km from the upstream end of the Cranberry Creek Drain and 11.5 km from the proposed pumping station. The Muehlherrs are part of the Appellant Group and concur with the evidence provided by the Group and wish to incorporate it into their evidence. They are appealing under ss. 48(1) (a) and ss. 54(1) of the Act.

The original LUF applied to this property by the Engineer was 1.0 and the original assessment on this property was $5,129. As the Muehlherrs enrolled all of their property in the Managed Forest Program with the MNRF on January 1, 2018, they appealed the LUF of 1.0 to the Court of Revision and, on the advice of the Engineer, the Court ruled that the LUF should be lowered to 0.71. Based on that lower LUF and the assessment changes made by the Court, the assessment on this property was lowered to $1,127. However, they are taxpayers in the City and Ontario, so they will indirectly be paying part of the $800,000 assessment that was transferred to the City and the MTO, which isn’t fair.

Upon finding out about the proposed project from a neighbour in April 2018, Mrs. Muehlherr circulated a petition to other landowners which resulted in 211 signatories and, in doing so, learned that most owners knew nothing about the proposed project until they received the USB stick containing the Report in the mail or until they happened to speak with their neighbours. This petition was forwarded to the City in June 2018, but no response has ever been received. Although the Court of Revision sat two times to hear 107 appeals it was still quite rushed.

The Muehlherrs purchased their property to enjoy country living, including the woodlands and wetlands and the many species of wildlife that live there. They have no intention to clear any of their land; in fact, as part of their Managed Forest Agreement and in cooperation with the RVCA, they reforested 10 acres with 2500 trees in 2017. Now virtually all their property is forested and some of it has a very high-water table with many vernal pools and areas of standing water. The topography of the property is generally flat, the soil is Farmington sandy loam throughout and is classified as 4 to 6 for agricultural capability. The is no water flow from their property after May 1st in a normal year. Accordingly, they suggest the LUF for their property should be 0.5 or less.

They cannot see any value of this project for their land as they do not want the drainage of their property improved. They are quite concerned that, by lowering the water table below normal, the proposed pumping station will adversely affect the valuable wetlands and wildlife in the watershed and agricultural pollution will be increased. They do not wish to pay towards a project that will do this.

Based on this evidence, and that of the Appellant Group, the Muehlherrs submit that:

1. between the transpiration of their forest and the infiltration into their sandy loam soil, the contribution of surface flow to the drainage system from their property is minimal to nil at any time, and definitely nil during the May 10th to October 31st period;

2. accordingly, their property should not be assessed for outlet to the pumping station nor should it be assessed for pumping station maintenance;

3. the ecology of the Cranberry Creek watershed will be severely damaged if this project proceeds as proposed;

4. the properties that truly benefit from the dyke and pump should pay all the costs to construct, operate and maintain the pumping station;

5. as Dr. MacGregor demonstrated, the costs of this project far exceed the benefits;

6. if this project proceeds, the LUF applied to their property should be 0.5 or less;

7. the Tribunal be requested to set the Report aside and assess all associated costs to the City of Ottawa.

Gillian Rollocks-Bonnick, Appellant

Mrs. Rollocks-Bonnick owns properties #153 and #154 which are 4.16 hectares or 10 acres and 0.81 hectares or 2 acres in area, respectively. These properties are completely within the watershed and are situated on the north side of Mulholland Road, in the extreme northwest part of the drainage area, approximately 8 km from the upstream end of the Cranberry Creek Drain and 11.5 km from the proposed pumping station. Mrs. Rollocks-Bonnick is part of the Appellant Group and concurs with the evidence provided by the Group and wishes to incorporate it into her evidence. She is appealing under ss. 48(1) (a) and (b) and ss. 54(1) of the Act.

The LUF applied to the larger property by the Engineer is 1.0 while a LUF of 2.0 is applied to the smaller property as it is considered a rural residential property. The original assessment on the larger property was $1,055 and, on the smaller property $411, but these have been lowered to $325 and $127 respectively by the Court of Revision.

Mrs. Rollocks-Bonnick suggests that the communication process followed by the City was inadequate as most landowners had no input to the proposal as they were not aware of the proposed project until after the Report was prepared. As the larger property is entirely forested and the residential property is quite small, she claims there is very little runoff from them at any time and nil after May 10th. She also claims that this runoff flows westerly for a short distance and pools in a low area and soaks away; therefore, it does not flow easterly and does not reach the Drain. Accordingly, these properties do not require improved drainage and should not be assessed for the proposed project. She also has a great concern regarding the future operating and maintenance costs that will be assessed to her properties. She is opposed to the proposed pumping station as it will have no benefit to her properties and will adversely affect the wetlands in the area. She suggests that the benefits of the project are not commensurate with the costs and that the pumping station should be deleted from the proposed project.

Jennifer Wallace, Appellant

Mrs. Wallace and her husband own property #165A which is a 66.84-hectare or 167-acre vacant property, located in the northwest part of the drainage area, extending through Concession 3 from Mulholland Road to Mackey Road, consisting of 4.0 hectares or 10 acres of hay fields and 62.84 hectares or 157 acres of forest, 20 hectares or about 50 acres of which is low and wet. The Wallaces are part of the Appellant Group and concur with the evidence provided by the Group and wish to incorporate it into their evidence. They are appealing under ss. 48(1) (a) and ss. 54(1) of the Act. Their property is approximately 6.5 kilometers from the upstream end of the Drain and 10 kilometers from the proposed pumping station.

As this property was overlooked when the Report was prepared, it does not appear in the original assessment schedules and the Wallaces were not made aware of their involvement in the project until March 28, 2018, which was 27 days after the meeting to consider the Report. The original assessment applied to this property was $16,809 but was lowered to $5,229 by the Court of Revision. The LUF applied to the property by the Engineer is 1.0.

Mr. and Mrs. Wallace have owned this property since March 2016 but, prior to that, it was owned by Mr. Wallace’s parents for 30 years. Mrs. Wallace testified that her research indicates that this property was not assessed at all in the 1969 report when the original pumping station was installed, but in the 1991 report it was to be assessed for 20.24 hectares. Now, in this Report, the entire property is being assessed, all 66.8 hectares. Due to this discrepancy, in April 2018, she asked the Engineer to attend at the property to do a site inspection, but that did not occur as she was advised that the Light Detection and Ranging (“LiDAR”) mapping was sufficient to determine the affected area. The Wallaces suggest that only the very wet portion of their property should be assessed, that is about 20 hectares or about 50 acres, not the dry portion.

In addition to farm and residential property taxes, the Wallaces pay the City’s stormwater tax, even though the roadside ditches along Mackey Road are completely overgrown and the road water flows onto their property and there is no culvert through their laneway. Mrs. Wallace advised that most of their property is not suitable for any kind of agricultural use as it consists mainly of muck soil with some Class 6 soil in the north part; therefore, it should not be assessed based on a LUF of 1.0. Mrs. Wallace claims that the muck portion of the property is designated as a significant groundwater recharge area by the RVCA, and she intends to keep it that way. The south portion of their property is now and has for many years been flooded by beaver dams and this cannot seem to be controlled as it has been ongoing since the 1970’s.

The Wallaces are quite concerned about the operation and maintenance costs of the proposed pumping station. They think the Engineer’s estimate is quite low and these costs will go on forever, if it is built. They are opposed to the pumping station but are in favour of a clean out of the Drain. Mrs. Wallace suggests that ‘aqua dams’, rather than the proposed pumping station, could be used to control the inflow/outflow of water to allow a clean out to be undertaken. Mrs. Wallace reminded the Tribunal that while the City has taken on a large amount of the assessment as a result of the Court of Revision’s decision, those funds have to come from the taxpayers, that is, from the same properties as the assessments do. The Wallaces agree with Dr. MacGregor’s cost-benefit analysis wherein he determined that the costs far exceed the benefits such that the project is not viable.

Based on all this evidence, and that of the Appellant Group, the Wallaces submit that:

1. the Report is in error in that it assesses all this property whereas it was not assessed at all in 1969 and only 20 hectares were proposed to be assessed in 1991;

2. the proposed pumping station will not control severe flooding events;

3. most of the water that falls on their property stays there as it infiltrates in the north part and the south part is a wetland;

4. the pumping station is not required for a Drain clean-out as this can be done using temporary dams;

5. application of a LUF of 1.0 to their property is completely in error as most of it is forest and wetland;

6. the operating and maintenance costs estimated by the Engineer are significantly underestimated, as per Dr. MacGregor’s evidence; and

7. because there are significant errors in the Report and because the project costs far exceed the benefits, they ask that the Report be set aside but they are agreeable to a clean-out of the existing Drain.

James T. Sheahan, Affected Landowner

Since 1979, Mr. and Mrs. Sheahan have owned a 5.5-hectare or 13.5-acre property on the south side of Lockhead Road West, in Concession 3, which is property #34 in the Report. The north watershed boundary passes through the property such that only 0.74 hectares or 1.8 acres are included in the drainage area. A LUF of 1.0 was applied to the property. Accordingly, the original assessment against the property was $172 which was lowered to $115 when the grant was deducted. The Court of Revision decision further reduced the net assessment of this property to $42. Mr. Sheahan advised that the land on the 3rd Line Road close to the Drain has always been wet and that is why he did not buy property there and that no one opposed ceasing the operation of the old pumping station in 1991. In addition, he claimed that he was not able to obtain the information that he wanted from the City in order to prepare for this hearing.

Lisa Larwill, Appellant

Ms. Larwill owns and lives on property #22 which has a total area of 52 acres or 21 hectares and is located on the east side of Third Line Road South, in the extreme downstream section of the drainage area, approximately 700 metres south of the Drain and 1.5 km from the site of the proposed pumping station. 12.77 hectares or 32 acres of this property have been assessed for this project and 10 of those 12.77 hectares (or 24.7 acres) are assessed within the pumping station special benefit area. The original assessment on this property was $9,274 based on a LUF of 1.0 but, since it is deemed to be ‘agricultural’ the net assessment was $6,214. As a result of the decision of the Court of Revision, the gross assessment was lowered to $5,798 with the net being reduced to $3,885.

Ms. Larwill has owned this property since 1998. She is part of the Appellant Group and concurs with the evidence provided by the Group and wishes to incorporate it into her evidence. She is appealing under ss. 54(1) of the Act.

Ms. Larwill’s research indicates that her property was not assessed for the original pumping station in 1969. When she purchased the property, she was made aware that it is within the Bruce Branch drainage area, which is tributary to the Cranberry Creek Drain, and a short portion of that drain is on her property. It was cleaned out by the City in 2004 and her share of the cost was $600. Her northerly neighbours have privately cleaned out the Bruce Branch Drain twice since 2004, most recently in 2018, possibly deepening and widening it when doing so.

Since 1999, she has rented approximately 25 acres of her property to a local farmer who uses it for corn or beans. The west end of her property does occasionally flood but this is not a problem for her or her tenant farmer. The 2017 flooding did not adversely affect her property. Her research indicates that the 2017 rainfall was an extreme event, as was the resultant flooding, and much land in a very large area was affected, not just the lowland adjacent to Cranberry Creek. She provided photos indicating this flooding in other areas.

Her research also indicates that her property, and most of the special benefit area, is floodplain and a significant wetland area, and a highly vulnerable aquifer, and some of that is a significant groundwater recharge area. Since she and all the residences in her neighbourhood rely on the aquifer for their water supply, the quality and quantity of that aquifer is very important, and she thinks the pumping station operation may adversely affect this recharge function and the wetlands. She suggests that the environmental costs of the proposal far exceed the anticipated agricultural benefits.

Using the property immediately north of hers and one just southwest as examples, Ms. Larwill provided photographs of and explained the intensive pumped agricultural drainage and cash crop farming that is occurring in this area of the watershed. She fears these activities will increase dramatically if this pumping station project proceeds. The photos indicated that these properties were partially or totally flooded in late April 2019.

Ms. Larwill also suggests that, since the proposed pumping station will not commence operation until May 10th, which is after the peak spring runoff period, and since it is not designed to address major runoff events, the costs of the pump station will far exceed any benefits to be derived.

Ms. Larwill attended every meeting about this drainage proposal and advised the Engineer that she was not interested in intensively draining and farming her land, yet her property is still assessed for “pump station benefit”.

Based on this evidence, and that of the Appellant Group, Ms. Larwill submits that:

1. if the project proceeds, she really needs the Agricultural Drainage Infrastructure Program (“ADIP”) grant from the Ontario Ministry of Agriculture, Food and Rural Affairs to be able to pay her assessment and she feels the availability of the grant is highly questionable due to the adverse effects of the project on the wetlands;

2. part of her property has been assessed in the pump station special benefit area, but she does not agree that it should be as it was not in the 1969 report and because her tenant farmer has been able to plant and harvest the crop from her land 20 of the last 21 years;

3. hers is a ‘minimal farm’ so her land will not benefit from the pumping station in any way; accordingly, she requests the Tribunal reduce her assessment for it to zero;

4. she is very concerned about the future operation and maintenance costs of the pumping station – these actually devalue her property;

5. the entire assessment arrangement for the pumping station favours the farmers in the special benefit area, so she requests the Tribunal review this and lower the assessment to her property;

6. accordingly, she is not in favour of the pumping station portion of the project as the costs exceed the benefits, and she requests that it be eliminated from the proposal.

A.J. Robinson, P. Eng., the Engineer who prepared the Report

Mr. Robinson was provided with a short period of time at the end of the day on May 3rd to address some smaller property issues that had come to light during the appellants’ testimony.

Firstly, regarding the Phyllis Begg property, property #147, Mr. Robinson explained that there is a discrepancy with respect to the area of this property between the actual measured area and the area for property assessment purposes as determined by the Municipal Property Assessment Corporation (MPAC). The measured area of 53.71 hectares or 132.72 acres was used in the Report and the property was assessed as one property; however, according to MPAC, there are two properties of land involved here with two distinct Roll Numbers, one which is 40.47 hectares or 100 acres in area and one that is 10.11 hectares or 25 acres in area, for a total of 125 acres as claimed by Ms. Begg. Mr. Robinson suggests that the MPAC information should be used. Accordingly, Mr. Robinson recommends that the Tribunal correct this issue, including an appropriate adjustment to the assessment, in its Decision.

Secondly, regarding the Carrigan property, property #191, and Mr. Carrigan’s contention that the watershed boundary is incorrect thereon, Mr. Robinson advised that he had very detailed LiDAR contour mapping prepared for that property and the surrounding area. This mapping revealed that the boundary is slightly in error at the south end of property #191 such that the affected area should be reduced from 23.07 hectares to 21.92 hectares, and Properties 541, 542, and 543 should be completely removed from the drainage area, and that the affected area of property #194 should be reduced from 20.23 hectares to 19.08 hectares. The very slight reduction of area for property #189 is considered insignificant. Accordingly, Mr. Robinson recommends that the Tribunal order that these issues be corrected in its Decision, including an appropriate adjustment to the assessments; however, Mr. Carrigan did request an on-site inspection with Mr. Franklin, so further information may be forthcoming.

Thirdly, regarding the Paquette property, property #150, and Mr. Paquette’s contention that the watershed boundary is incorrect thereon, Mr. Robinson advised that he had very detailed LiDAR contour mapping prepared for that property and the surrounding area and this mapping revealed that the watershed boundary as shown in the Report is correct. Accordingly, Mr. Robinson recommends that nothing requires correction in this regard.

At the beginning of hearing day 9, on September 17th, 2019, Mr. Robinson presented his Curriculum Vitae as an exhibit and, based on that, he was declared as an expert witness by the Tribunal, with no objection by any party.

Regarding the evidence presented by Mrs. Whitmore, Mr. Robinson had the following comments:

• the Court of Revision did listen to the appeals from the landowners as it lowered the assessments to the private lands by approximately $769,300, such that now, only 2.4% of the pumping station cost is being assessed to private lands as outlet assessment;

• Robinson Consultants made 20 site inspections, some as a result of requests made at the Court of Revision;

• farming is not prevented in floodplain lands;

• the cause of the flooding in the Drain is the backup of water from the River and occasional heavy rainfall events;

• the City Drainage Department cannot undertake a clean-out of the Drain unless the water level is artificially lowered;

• the 1969 report and bylaw are the current legal documents for the Drain, as no bylaw was passed in 1991 amending them;

• the Kilgour & Associates Ltd. report is an ESA, not an Environmental Appraisal as specified in s. 6 of the Act;

• discharge from the proposed pump station at 2.5 cubic meters per second will have an insignificant effect on the flow in the River;

• the only work proposed on the Drain downstream of the proposed pump station site is the removal of beaver dams;

• the Drain itself is, for the most part, on the perimeter of the PSW and does not run directly through it;

• the RVCA has issued a permit allowing the proposed project to proceed;

• the City Drainage Department will be responsible for the operation and maintenance of the pumping station;

• automatic controls and recording equipment will be located at a central location;

• another Engineer’s Report would be required to install a second pump;

• he does not know why the engineer who prepared the 1969 report assessed all the pumping station cost to the benefiting lands and he does not agree with this assessment reasoning;

• Section 78 of the Act definitely allows the installation of a pumping station under ss. (1.1)4, which states “Constructing, reconstructing, or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works” (emphasis added);

• the reason for installing the pumping station is to keep the water level in the Drain lower than the River level in the summer growing season, not to protect the lands from flooding during the spring freshet or after major rainfall events;

• there are ten branch drains, totaling 29,758 metres in length, that contribute flow to the main Cranberry Creek Drain (which is only 4,590 metres in length), accordingly, the entire watershed area is well serviced by drains and all lands contribute water to these branch drains – none are without a direct or indirect outlet; and,

• upon questioning by the Tribunal, Mr. Robinson advised that the Court of Revision did not amend Schedule E of the Report, being the maintenance assessment schedule for the pumping station, that is, 75% of the operation and maintenance costs of the pump station will still be assessed to all the upstream lands and roads and 25% will be assessed to the properties in the special benefit area, as originally calculated by the Engineer.

Regarding the evidence presented by Dr. Wendt, Mr. Robinson had the following comments:

• the water level in the River was lower than it is now until about 1955; therefore, it did not have a negative impact on the downstream lands until that date;

• even though a resolution was passed by Rideau Township Council sanctioning the removal of the original pumping station in 1991, that action was not “official” as it was not done in accordance with the Act;

• his assessment method is not controlled in any way by the method followed in 1969;

• the operating elevations for the proposed pumping station are “pump on at 85.0m” and “pump off at 84.7m”;

• between November 1 and May 9, the pumping station will not be operating, therefore, during that period the water level in the Drain will be “natural”, that is, whatever the River level is;

• the low water level of 84.7m is stipulated in the Report and in the RVCA Permit and cannot be changed without a new Report being prepared and approved;

• modern farming methods permit productive operations on soil types that were considered to have lower agricultural capability in the past;

• the stormwater surcharge tax imposed by the City is not intended to replace assessments made under the Act;

• the stormwater modelling program used in this case is what is considered acceptable by the industry for this type of drainage project;

• regarding Dr. Wendt’s concern with respect to the ecological values of wetlands, forests and other natural areas, Mr. Robinson points out that the provincial agencies responsible for overseeing such areas, specifically the RVCA and MNRF, have approved this project;

• regarding the applicability of ADIP grants for this project, Mr. Robinson contends that the drainage works proposed are “maintenance” not improvements; and

• in response to Dr. Wendt’s contention that there has been no pumping station on the Drain for 30 to 40 years and, therefore, it is not necessary, Mr. Robinson replies that the farmers do not agree and say it is required.

Mr. Robinson quoted from page 66 of OMAFRA publication 852 A Guide for Engineers working under the Drainage Act in Ontario as follows “It is impossible to accurately determine the volume and rate of flow from a property. Therefore, most engineers use an equivalent area method of calculating the outlet or injuring liability assessments.” Mr. Robinson advised that this and the assessment method described in the Dries & Todgham paper are what he used in this Report.

Regarding the evidence presented by Robert Paquette, Mr. Robinson had the following comments:

• since the RVCA, the MNRF and the DFO have all given approval for the proposed project to proceed, the concerns regarding wetlands, endangered species and species at risk have been adequately addressed by the Report; and

• after being provided with the detailed LiDAR contour mapping of his property on May 3rd, Mr. Paquette rescinded his request for an on-site inspection of his property regarding the location of the watershed boundary.

Regarding the evidence presented by Rachel Sampson, Mr. Robinson suggested that it was general in nature with respect to the environmental values of wetlands, with which he agrees, but since it was not specific to this project, he has no further comments.

Regarding the evidence presented by Dr. MacGregor, Mr. Robinson had the following comments:

• generally, Mr. Robinson found that Dr. MacGregor’s evidence included many “guesstimates”, no detail and no real concrete information;

• a benefit cost statement for the project was not prepared by Robinson Consultants as it was not requested by the City or the Minister, as is required in ss. 7(1) of the Act, and it was not undertaken by the City on its own initiative, as allowed by ss. 7(2) of the Act;

• the objective of installing a new large pumping station is to protect the downstream crop lands from high flows resulting from 2- to 5-year rainfall events by lowering water levels within 48 hours;

• the options considered by the Engineer for this project were (1) do nothing, which was not considered feasible, (2) convince Parks Canada to lower the summer water level of the River, which was unsuccessful, (3) install a new pumping station with one large pump and provision for a second pump, and (4) install a new pumping station with two large pumps;

• relying on the 50-year-old Canadian Land Inventory Soil Capability for Agriculture mapping and concluding that only the Class 1 and 2 soils are is suitable for intensive agriculture is not reasonable now, as there are new and better ways to farm that make poorer land more attractive;

• hydrologic modelling was undertaken to quantify various flow events;

• he strongly disagrees with Dr. MacGregor’s $307,000 estimate of annual operating and maintenance costs of the pumping station;

• as part of the revised assessment schedules distributed to all landowners after the Court of Revision, Mr. Robinson included a schedule “For Future Maintenance of the Pump Station”, being the last 5 pages of Schedule E, based on an estimated average annual maintenance cost of $30,000;

• contrary to Dr. MacGregor’s understanding, there is no requirement by the RVCA to undertake any wetland monitoring functions as part of the operation of the pumping station;

• he strongly disagrees with Dr. MacGregor’s $37,500 estimate of the annual economic benefit of the pumping station to protect some of the crop land from excessive water, based on the previous evidence of the farmers; and

• Mr. Robinson suggests that including the cost of the Ecological Goods and Services of the wetlands that is being lost due to this project is not applicable as the project has been approved by the environmental agencies that are responsible for these concerns.

Further to the evidence submitted on May 3rd, a site inspection of the Carrigan property (#191) was undertaken and revealed a further reduction of the affected area for the Carrigan property to 19.30 hectares. Accordingly, Mr. Robinson recommends that the Tribunal order that this area reduction be included in its Decision with an appropriate adjustment to the assessment.

Regarding the Marc MacDonald property (property #225), Mr. Robinson now has the managed forest agreement information for it and, as a result, has modified the LUF from 0.71 to 0.61, which results in the equivalent area being reduced from 55.17 hectares to 47.36 hectares. Accordingly, Mr. Robinson recommends that the Tribunal order that this area reduction be included in its Decision with an appropriate adjustment to the assessment.

Regarding the PSW within the Pump Station Benefit Area, Mr. Robinson advised that, upon further reflection and consideration of the evidence submitted by the appellants, he suggests a fair and reasonable resolution to this matter would be to apply a LUF of 0.0 to these PSW areas, rather than the 0.5 factor that was previously used, since they are ‘protected’. Mr. Robinson provided a table of Calculations for the Exclusion of PSW Area from the Assessed Pump Station Benefit Area (Exhibit 72) indicating that 206.52 hectares of PSW are included within 374.36 hectares on 26 properties. If a LUF of 0.0 was applied to this PSW area instead of 0.5, it would reduce the assessed equivalent area by 103.26 hectares. Mr. Robinson suggested that this alteration should apply only to the Benefit assessments of these properties, not the outlet assessments. Mr. Robinson recommended that the Tribunal give this proposal consideration. As for where to assess the funds that would “become available”, he suggested they could be distributed as increased benefit assessment over the remaining properties in the special Benefit Area or over the entire drainage area as outlet assessments. However, Mr. Robinson did not suggest changing the LUF of the PSW in the balance of the drainage area as those lands are not assessed for benefit.

After checking the elevations of property #65, based on the evidence of Mr. Severn that there is some higher land within his property, Mr. Robinson has determined that there are two drumlins that are above the Pump Station Benefit Area elevation of 87.5 m, such that those areas should not have been assessed for special benefit. Accordingly, Mr. Robinson suggests that the total areas assessed within the Pump Station Benefit Area for the following properties should be reduced by the following amounts:

Property #59 0.81 hectares

Property #63 0.23 hectares

Property #65 (the Severn property) 1.93 hectares, and

Property #68 1.00 hectares.

Upon cross-examination, Mr. Robinson advised that:

• he does not know if the low water level, or “pump off” elevation, of the proposed pumping station is the same as was specified in the 1969 report;

• the Court of Revision did not make any changes to the assessment schedule for operation and maintenance of the pumping station; therefore, those costs will be assessed in accordance with Schedule E of the Report, based on 25% benefit and 75% outlet, an example of which is provided on pages 790 to 794, in tab 55 of exhibit 43B, in the amount of $30,000;

• regarding condition 3 of the RVCA permit, his firm will not be conducting multi-year monitoring or assessment to determine the health of the wetland;

• the specific problem that the proposed pumping station is going to solve is to keep the water level in the Drain low during the growing season and it will do this by pumping the water that backs up into the Drain from the River and by pumping the water that flows down the Drain from the upstream lands;

• no flow analyses or measurements were undertaken in the Drain or the branch drains during the growing seasons of 2015, 2016, 2017 or 2018 while preparing the Report;

• his firm did not undertake any scientific investigations to determine that soils classified as 4, 5 and 6 in the Canadian Land Inventory Soil Capability for Agriculture mapping are suitable for intensive agriculture;

• under normal flow conditions, the Hinton and Plunket Drains actually are tributaries to the John Padden Drain but, under high flow conditions, they may provide some outlet, but they were not surveyed as part of this project;

• it is not economically feasible to make an on-site inspection of every property on a project of this magnitude, as the cost of the engineering time to do so would be exorbitant;

• Section 59 of the Act regarding the municipality calling a meeting to consider the contract price of a project where it exceeds 133 per cent of the Engineer’s estimate applies only to projects under s. 4, not to projects such as this one undertaken in accordance with s. 78;

• if there is a cost over-run for the maintenance construction of the Drain, the total cost will be prorated over Assessment Schedules B, C and D, as amended by the Court of Revision;

• if there is a cost over-run for the construction of the pumping station, the total cost will be prorated over Assessment Schedule E, as amended by the Court of Revision, except that the lump sum amounts assessed to the City and the MTO would not be increased;

• the engineering costs associated with the Court of Revision, and the engineering costs associated with preparing for and attending Tribunal hearings are not included in the engineering costs estimated in the Report and, unless ordered otherwise by the Tribunal, these costs are normally added to the total cost of the drainage project;

• the pump station benefit area was determined to be that area below the contour elevation of 87.5m, as this area would be directly affected by the pumping station removing water from the ground surface and the root zone of the crops;

• when preparing his Report, the only wetlands within the drainage area that he recognized were those that are classified as “Provincially Significant”, to which he applied a LUF of 0.5;

• Robinson Consultants did not model the 2013 or 2017 rainfall events as part of the design work undertaken for this Report; therefore, Mr. Robinson cannot comment on the magnitude of those events;

• he is quite sure that the proposed pumping station would not have been able to handle the 2017 event and likely not the 2013 event, either;

• after the Report was published and distributed, Robinson Consultants made 20 on-site inspections at the request of landowners, 12 before the Court of Revision and 8 after, but only for properties through which the drainage area boundary passed, so as to determine how much of the property should be included within the watershed;

• he could not indicate where the pumping station operating elevations are specified in the Report but referred to drawing B02 where they are described as “SUMMER WATER LEVEL 84.7 – 85.0 UPSTREAM” and suggested that these elevations are also stipulated in the agency approvals;

• there was geotechnical information obtained for the site of the pumping station, so the design has been done based on those soil conditions;

• it is his understanding that the lump sum assessments made by the Court of Revision to the City and the MTO for the construction of the pumping station were intended to be “one-time only assessments” and would NOT apply for the assessment of operation and maintenance costs;

• neither he nor his firm have canvassed the property owners in the Pump Station Benefit Area to determine if they are in favour or opposed to the proposed project;

• the proposed bottom of the channel at the upstream end of the Drain, which is about 165m west of 4th Line Road, will be at elevation 84.85m which will be about 0.6m lower than the elevation of the River; therefore, water will be backed up through the entire length of the Drain, unless it is pumped lower;

• no special consideration was given to lands that are significant groundwater recharge areas when making assessments;

• further to his evidence about solution options considered, Mr. Robinson advised that they did not consider an option of clean-out only of the Drain;

• a preliminary report for this project was not undertaken as it was not requested by the City and, further, Mr. Robinson did not suggest to the City that such a report could have been done;

• the current design standard for open drains is the 2-year flow and that is why he selected a 2.5 cms pump;

• neither he nor his subconsultant have designed a pumping station for a municipal drain before this project;

• he does not know how other drainage engineers assess pumping station costs in other parts of Ontario, as he did not contact anyone about this;

• it is his opinion that all lands contribute water that is ‘artificially caused to flow’ to the Drain, including undisturbed PSWs and undisturbed forested lands;

• the open drain is being improved as the sides are being reduced to a slope of 2H:1V to make them more stable and less susceptible to erosion;

• the pumping station is being improved from the last design by increasing the pump from a 3000 GPM pumping rate to a pump with a 33,000 GPM pumping rate;

• it is always his practice to assess forested lands as if they are cleared, worked agricultural lands and he relies on item 12 of page 15 of the Dries & Todgham paper to justify this;

• the RVCA project approval expires on October 24, 2019 but he does not expect any problem to have it extended;

• it is reasonable to farm in floodplain areas, and it is done in many locations in the Province, but it is not reasonable to expect these areas to be flooded during the growing season;

• the Drain could be cleaned out without installing a pumping station using a temporary coffer dam and pump;

• Kilgour & Associates Ltd. will be retained during construction to assist in meeting the requirements of the approval agencies;

• with respect to the Johnston appeal, he feels the allowance provided for the access road is fair and reasonable, the road will be constructed to a rural gravel road standard, the lane will be fenced along the road with a locked gate, and he did not check with any other drainage engineers as to how compensation for access roads is normally handled, that is, by an allowance or by purchase;

• regarding the Greg Foster property, located just north of the north side of the drainage area but which has been under-drained into this drainage area, he will advise the Tribunal as to his recommendations within a week;

• he used an assessment split of 10% benefit and 90% outlet for all three sections of the Drain, that is, for the entire 4.5 km downstream length, rather than increasing the benefit portion when moving upstream as recommended in the Dries & Todgham assessment method, because this length is relatively short as compared to the total length of the drainage area;

• this report has been submitted to the Drainage Section of OMAFRA and he has not been advised as to whether the grant available under the ADIP will or will not apply to this project, since it does drain through and from “significant wetlands”;

• as pointed out by the Tribunal, it appears that some roads have been omitted from Assessment Schedule C, so he will check on this and advise the Tribunal of his recommended correction for this omission;

• in spite of using the term ‘Pump Station Special Benefit Cost’ in the Report, it was NOT his intention that these assessments would be considered as “Special Benefits”, as defined in s. 1 of the Act and applied under s. 24, that is, it is his intention that these assessments are eligible for the ADIP grant, and he asked the Tribunal to clarify this in its decision;

• there are approximately 300 individual private properties within the drainage area, owned by approximately 285 different parties;

• the LUF used for Highway 416 was 4.5;

• if there is a small residential area within a forested property, the LUF used for the entire property was 1.0;

• to his knowledge, there are no pumping stations similar to that proposed here anywhere on the River in the City;

• the adverse conditions plan required by the RVCA will be prepared by the City, at no additional cost to the project;

• the contractor will be responsible for SARS mitigation and will be overseen by the Engineer and Kilgour & Associates Ltd.;

• Parks Canada cannot be assessed any cost for this project as it is a federal government agency; therefore, it is exempt from the Provincial legislation;

• he did not consider a ‘stormwater management pond’ solution, as it would not address the River water back-up problem and it likely would have detrimental environmental effects on the adjacent PSWs;

• he does expect the majority of the 2-year storm flow from the drainage area to be contained in the channel upstream of the pumping station; and

• drawing C1 in the Report shows numerous cross-sections of the Drain channel and quite a few of those indicate that the land immediately adjacent to the channel is below the 85.5m elevation of the River, such that there would be numerous areas where flooding would take place during the summer months.

Nazgol Namazi, Counsel for the City of Ottawa

Ms. Namazi advised that the City has complied with s. 78 of the Act and fully supports the Report for the better use, maintenance and repair of the Cranberry Creek Drain, as well as the decisions of the Court of Revision. Ms. Namazi also pointed out that the appeals to this Report were made under ss. 48 (1) (a) and (b) of the Act, and the appeals to the decisions of the Court of Revision were made under s. 54 of the Act. She suggested that the Tribunal should consider only evidence related to those sections.

Ms. Namazi also referred the Tribunal to the Mohan decision, the White Burgess decision, as well as the Deemar v. College of Veterinarians of Ontario,2008 ONCA 600, decision in support for her submissions that the witnesses who sought to be qualified as expert witnesses were not independent or impartial. Our findings and comments regarding the witnesses who sought to give evidence as experts are included elsewhere in this decision.

Ms. Namazi then brought attention to s. 22 and s. 23 of the Act as well as certain paragraphs of exhibit 46, the OMAFRA publication Understanding Drainage Assessments and page 17 of the Report regarding “… the Drainage Engineer using best judgement to provide a system of assessments that is fair to all concerned.”

The City referred the Tribunal to several decisions articulating principles to be applied in assessing properties affected by drainage works. The following are the cases cited by the City and the principles articulated in these decisions.

Bartlett Creek Municipal Drain, 2000 ONAFRAAT 4, 2000 ONAFRAAT4

In this appeal, the appellant had failed to provide any evidence that the benefit of the work was not commensurate with the estimated cost. This fact situation is different to the Cranberry Creek Drain appeals where evidence was provided on this issue.

Sinclair Drain\Virostek Drain 2014, 2015 ONAFRAAT 18, 2015 ONAFRAAT18

The following passage, from page 11 of the decision, was brought to our attention:

Appeals related to Sec. 48(1)(a) Benefits not Commensurate with Costs.

It should be noted that an appeal under Section 48(1) (a) of the Drainage Act is not an appeal related to the cost/benefit analysis of any specific property but rather considers the balance between the cost of the entire project versus the value brought by the project to all properties within the watershed as well as the broader community.

The Tribunal agrees with this principle as will be seen from our analysis of the evidence.

Springmount Municipal Drain, 2016 ONAFRAAT 13; at page 6:

Sec 23(1) of the Drainage Act, clearly states that

“Lands …. that use a drainage work as an outlet either directly or indirectly through the medium of any other drainage works … may be assessed for outlet liability.”

The following passage was also brought to our attention.

The Act is designed to share the cost burden of constructing and maintaining a drain among all properties in its watershed that benefit.

Holland Marsh Drainage System, 2010 ONAFRAAT 11;

The following passage, at page 9 of this decision, was brought to our attention.

An assessment for “outlet” under Section 23 of the Act arises when any land puts water into the drainage works. It is the cost of transporting run off from a property to an outlet. The Engineer assesses the land for part of the cost of the works as outlet liability under Section 23.

Elphick Municipal Drain, 2008 ONAFRAAT 26

We were referred to the following passage at page 7 of the decision.

Section 23(3) of the Act gives the Engineer specific direction about how to assess for outlet liability (emphasis added). The outlet assessment must be based on the rate of water flowing into the drain from the lands liable for assessment.

Highway No. 93 Drainage Works, 2009 ONAFRAAT 29

Under the heading of Riparian Right of Exemption at page 5 of this decision, we were directed to the following excerpt from the decision of the Drainage Referee in the Town of Bradford West-Gwillimbury v Township of King, et al., for the interpretation of s. 23 of the Act.

It is thus clear beyond all doubt that there is no exception of assessment for riparian owners under the terms of the Ontario Drainage Act. If such was the case, not only would it be highly inequitable in result, but it would be almost impossible in application.

We were also directed to the following passage of the same decision under the heading Fairness and Reasonableness of the Assessments.

The Engineer testified he used a variation of the “Todgham” assessment method, named for the drainage engineer who codified his approach to assessment many years ago. This Tribunal has accepted that assessment method many times. However, that does not mean the Todgham approach is the only acceptable approach to assessment.

Ms. Firth filed a copy of an article entitled “Drainage Assessment Revisited” authored by E.P. Dries and H.H. Todgham, both professional engineers. That article reviewed the duties of a drainage engineer under the Act. The authors convincingly argue that the ultimate test for any schedule of assessment in a drainage report is this:

Is it fair to all concerned? Can I compare the assessments on any two properties (either neighbouring or in remote parts of the watershed) and say that, relatively speaking, they are being fairly charged for the value they will derive?

We adopt the “ultimate test” articulated above by Messrs. Dries and Todgham as the correct yardstick in these appeals.

The City contends that the appellants have not provided any scientific evidence that no water whatsoever runs off their properties or that the project benefits are not commensurate with the costs; they have provided only their own personal beliefs. Similarly, no evidence has been put forward as to how or on what grounds modifications should be made to the proposed drainage works. The City submits that, with no scientific evidence being submitted to contradict the Report, the Report should not be set aside, and all appeals should be dismissed.

The City notes that a number of appellants have indicated that they agree with undertaking maintenance work, or a clean-out, of the Drain; however, on page 3 of the Report, the Engineer has stated that it is not possible to do so without lowering the water level upstream of the proposed dyke. During the hearing, the Engineer clarified that it is not necessarily impossible but that it is undesirable as it would be very costly and would result in unnecessary environmental damage. Accordingly, on page 6 of the Report, the Engineer indicated that “… the option considered to best satisfy the requirements for drainage while providing ease of construction, maintenance and to be cost effective was selected …”, that being the dyke and pumping station. It is the City’s opinion that the drainage Engineer is the most qualified to make that decision and the maintenance work should proceed as proposed.

Regarding the appellants’ arguments that the project will have negative impacts on the environment and will result in loss of wetlands, the City relies on the approvals obtained from the environmental agencies, all of which are included in the report, and submits that no evidence in this regard has been submitted by the appellants. Accordingly, the City submits that the Tribunal has no jurisdiction to rule on these matters.

The City refers to s. 74 of the Act that indicates the municipality has a legislated obligation to keep a drain in repair and to consider improvements requested under s. 78. In this regard, Ms. Namazi relies on page 13 of Tab 7 being a 2016 decision of the Tribunal, Ouellette Drain East, 2016 ONAFRAAT 5, 2016 ONAFRAAT5.

Accordingly, the City submits that this project is consistent with s. 74 and s. 78 of the Act and requests that the Tribunal dismiss all the appeals and instruct that the assessments be modified as recommended by the Engineer during this hearing.

Discussion

For the reasons stated previously in this decision, Stephen Wendt, Robert Paquette, Constance Whitmore and Rachel Samson are not expert witnesses. With the exception of Ms. Samson, they are not only appellants but were also advocates supporting their own appeals and those of the Appellant Group. All of them, except Rachel Samson, provided written arguments to support their evidence. As stated in Deemar v. College of Veterinarians Ontario, this meant they did not have the independence required to qualify as expert witnesses.

Dr. Robert MacGregor and his wife own lands forming part of the Cranberry Creek Drain Watershed. We note that neither he nor his wife are appellants. He and Mrs. MacGregor were only included in the hearing as parties pursuant to a Procedural Order of the Tribunal issued on the 25th day of July 2018 making all affected owners parties to these appeals. The Tribunal is of the view that the Procedural Order does not disqualify Dr. MacGregor from providing expert evidence at the hearing under the guidelines established in Mohan, White Burgess, and the other jurisprudence. We are also satisfied that Dr. MacGregor not only possesses the necessary expertise and independence, but he also gave his evidence without assuming the role of an advocate and, in our view, he did not demonstrate bias.

However, for the reasons set out earlier in our decision, the inability of certain witnesses to qualify as expert witnesses did not result in their evidence being entirely inadmissible. Their evidence was admissible under s. 15 1(a) and (b) of the SPPA and the documents, reports and information produced resulting from their research and brought to our attention, were relevant, admissible and served to inform the Tribunal as authorized by s. 16 of the SPPA.

Analysis/Burden of Proof

The following passage at page 526 from The Law of Evidence by David Pacioco and Lee Stuesser is of assistance in understanding how admissible information is to be used in court proceedings:

The law relating to burdens of proof and presumptions is particularly complex because terminology is not used uniformly. Speaking generally, there is agreement that the term “burden of proof” is apt to describe who it is that has the obligation of satisfying the adjudicator on the factual matter in issue. The term “standard of proof” is understood to describe the degree to which she must convince the adjudicator in order to discharge her “burden”.

Twenty-eight property owners filed appeals under ss. 48(1) (a) of the Act alleging that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof. The specific part of the drainage works referred to by those appellants was the cost of the construction of the new pumping station and dyke proposed to replace the facility that was previously removed from service in 1991, including the cost of future operation and maintenance. While several appellants made these submissions/arguments based on their personal opinions, without tendering credible evidence to support their position, the following evidence was presented to the Tribunal in support of the appeals under ss. 48(1)(a).

Dr. Robert J. MacGregor’s curriculum vitae was provided earlier in the evidence portion of this decision but, it is important to note that, his education specialty was in agricultural economics.

Dr. MacGregor pointed out that many landowners asked the City to carry out a comprehensive cost-benefit analysis and an environmental impact assessment at the start of this project. These could have been undertaken in accordance with the terms of the Act but were not done.

Dr. MacGregor’s estimate of the annual economic operating costs of the pump and dyke included electrical charges, labour to inspect and maintain the pump and control structure, maintenance materials, a 10% return on the $1.5 million economic investment, and project monitoring, as required by the RVCA, resulting in a total of $307,000. Dr. MacGregor then calculated the benefit to the Class 2 land that is currently growing corn, soybeans, etcetera saying that 25% of that area, or 500 acres, would benefit from the pump and dyke, taking 90% coverage by crop insurance into consideration, he determined the economic benefit to be $37,500 in some years. This would result in a cost-benefit ratio of more than 8:1 which would indicate a non-viable project. He also notes that he did not include the valuable environmental ecological goods and services costs provided by wetlands that would be significantly reduced as a result of the proposed project. Dr. MacGregor suggests that his analysis clearly shows that the benefits are not commensurate with the costs.

Based on Dr. MacGregor’s education in agricultural economics and his professional experience, the Tribunal accepts his evidence regarding the estimate of the annual economic operating costs of the pump and dyke. While the selection of a 10% return on the economic investment could be considered arbitrary, even if it was reduced or eliminated, the cost-benefit ratio would still be in the order of 4:1 or greater, and that is without including any environmental/ecological goods and services costs.

Dr. Stephen Wendt’s curriculum vitae was provided earlier in the evidence portion of this decision but, it is important to note that, his education specialties were biology and mathematics and that he was employed in senior positions with the Canadian Department of the Environment for 33 years. In addition, Dr. Wendt has lived in the Cranberry Creek drainage basin for 45 years and taken a personal interest in its natural history, ecology, geology and biodiversity.

Dr. Wendt’s historical research concludes that the Drain has operated for the last 30 to 40 years without an effective dyke and pump system, meaning that, for at least 104 years of its 124 years of existence, the Drain has flowed naturally into the River. Dr. Wendt further advised that no other creeks or Drains that outlet to the River in this area require dykes and pumps.

Dr. Wendt also advised that, from his investigations, the Cranberry Creek Drain has never been the subject of a cost-benefit analysis. Based on his experience, he suggests that the proposed project is of sufficient magnitude that such an analysis should have been done, with special emphasis on the dyke and pump station, the height of the proposed dyke and the depth of the Drain.

Dr. Wendt also analyzed River water levels for the last 40 years to determine what might constitute “flooding” in the downstream section of the Drain, based on the normal summer water level of 85.5 metres, as controlled by Parks Canada. His analysis indicated that flooding events were rare - 28 of the 40 years had no such flooding events. In 12 years, presuming there was no dyke, there would have been some flooding for a few properties.

Dr. Wendt continued by pointing out the environmental values of the natural areas within this catchment, specifically the woodlands and the wetlands, values such as carbon sequestration, flood abatement, aquifer recharge, pollution abatement, biodiversity conservation, fisheries production, production of forest products, aesthetics and many types of recreational activities. While these values may not be of primary concern under the Drainage Act, Dr. Wendt points out that all of the instruments of society must operate together on a single landscape and that some of them have been designated and mapped, such as PSWs, significant aquifer recharge areas and areas where groundwater sources are especially vulnerable.

In conclusion, Dr. Wendt recommended that:

1. the Report should be set aside as the benefits are not commensurate with the costs; and

2. a pumping station on this Drain is not necessary since flooding events are infrequent - 28 of the past 40 years had no flooding events.

Mr. Robert Paquette’s curriculum vitae was provided earlier in the evidence portion of this decision but, it is important to note that, he has a diploma in Forestry Technology and was employed by the Ontario Ministry of Natural Resources in various technical positions within the Kemptville District for 30 years, including undertaking wetland evaluations.

Mr. Paquette introduced RVCA mapping confirming that a significant portion of the catchment is PSW that is surrounded by a 120-meter wide regulated buffer. In addition, the RVCA has identified floodplain land within this catchment that is also regulated. Mr. Paquette has calculated that 50% of the total catchment area of 4350 hectares is regulated and that 51% of that regulated area will be affected by the proposed municipal Drain work.

It is Mr. Paquette’s opinion that the proposed project will have negative effects on the entire catchment, including the forested areas and the wetland areas. Additionally, he expressed his concern about the five endangered species that may be affected by the proposed project.

The quotations from the MNRF document entitled A Wetland Conservation Strategy for Ontario 2017 – 2030 regarding the economic values of wetlands, their current status and threats, that were brought to the attention of the Tribunal by Mr. Paquette, were certainly interesting and helpful. Mr. Paquette stressed that this document makes it quite clear why all wetlands must be protected, especially those in the Cranberry Creek drainage area.

Mr. Paquette pointed out that the RVCA’s multi-year monitoring and reporting conditions are very extensive and onerous and will be very costly to comply with, but these costs have not been included in the Engineer’s estimate.

Based on his 30 years of working with the natural resources in this area, and his 22 years of living in the drainage area, as well as the research that he undertook for the Appellant Group’s presentation, Mr. Paquette provided a number of reasons why this project should not proceed as proposed. These reasons are listed in the evidence section of this decision and have been given due consideration by this Tribunal.

Although Dr. Wendt and Mr. Paquette did not qualify as independent expert witnesses as defined in the test enunciated in Mohan, these witnesses had specific skill, knowledge, training and experience on the issues of agricultural economics, geology and the environment. This evidence became part of the evidentiary record and should not be discarded or ignored simply because it is not expert evidence within the meaning of the Mohan decision. The Tribunal is a specialized decision-maker under the Act seeking to apply its knowledge and experience to reach the best decision for the City, the appellants and the affected landowners.

The only evidence tendered by the City to answer the appellants’ evidence under ss. 48(1)(a) was that of Engineer Mr. Robinson, the author of the Report. He stated that;

• a benefit cost statement for the project was not prepared as it was not requested by the Minister nor was it undertaken by the City on its own initiative, and

• including the costs of the Ecological Goods and Services of the wetlands that are being lost due to this project is not applicable as the project has been approved by the environmental agencies, and

• since the RVCA, the MNRF and the DFO have all given approval for the proposed project to proceed, any concerns regarding wetlands, endangered species and species at risk have been adequately addressed by the Report, and

• it is reasonable to farm in a floodplain, but it is not reasonable to expect these areas to be flooded during the growing season.

Furthermore, upon questioning, Mr. Robinson advised that neither he nor his subconsultant have ever designed a pumping station for a municipal drain before and that he did not contact any drainage engineers from other parts of Ontario who are experienced in pumping station design, operation, maintenance and assessment of costs.

Standard of Proof

Section 48(1)(a) imposes upon the appellants the legal burden and evidential burden to adduce evidence to support this ground of appeal. The standard of proof in appeals before the Tribunal is commonly known as proof on a balance of probabilities. This means that the party has the responsibility to adduce sufficient evidence to satisfy the Tribunal of the existence or non-existence of a fact or an issue. The appellants satisfied this burden by relying on the expert evidence of Dr. MacGregor and the evidence of Dr. Wendt, Mr. Paquette and Rachel Samson. These witnesses also provided historical and other information taken from township records, MNRF publications and other reliable government agency sources. This evidence was admissible under ss. 15(1) (a)(b) of the SPPA. Dr. MacGregor testified that many landowners requested the City to carry out a comprehensive cost-benefit analysis and an environmental impact analysis at the start of the project. These were not done.

As previously mentioned, there were 40 appeals to the Tribunal regarding this proposed project and Report, which is the greatest number of appeals regarding one drainage project in the recent history of the Tribunal.

As a result of the large number of appeals, the Tribunal convened a pre-hearing conference in October 2018 and then sat for twelve days of hearing in 2019, during which time it heard evidence and arguments from 40 parties and received 75 exhibits, a number of which were many hundreds of pages in length.

Based on this information, it is quite evident to the Tribunal that the Cranberry Creek 4,350 hectare or 10,750 acre drainage area is very complex by reason of its large size, its varying soil conditions and topography, the mix of land uses (rural residential, vacant forested lands, managed forested lands, considerable PSW, considerable unclassified wetland, farmlands, rural roads, regional roads, Provincial Highway #416), the large number of property owners involved, the conflicting interests and philosophies of those 285 property owners, the 122-year history of the Drain, the lack of maintenance of the Drain over the past 46 years and the water level of the River between April and November. Some landowners want to develop more intensive agricultural operations while many landowners want no land use changes whatsoever.

Considering all these complexities, and the significant work that is proposed in the Report, the Tribunal understands the difficulties faced by Robinson Consultants Inc., especially Mr. Robinson, P.Eng. and Mr. Lorne Franklin, LET, CET, in undertaking the extensive and detailed work required to prepare the Report.

Findings

The following section addresses the reasons for the decision of the Tribunal. The reasons have been divided into subsections to address the various issues raised in the appeals, such as, ‘Benefits versus Costs’, ‘Ecological Value of Forested Lands’, ‘Provincially Significant Wetlands’, ‘Errors and Omissions’, etcetera, as listed below.

Benefits versus Costs

Based on the information and evidence presented by the appellants over the twelve days of this hearing, the Tribunal has determined that there are many errors in and omissions from the Report, as listed below. In addition, after considerable deliberation, the Tribunal is of the view that the benefits to be derived from the pumping station and dyke portion of this project are not commensurate with the estimated cost thereof.

While s. 7.(2) of the Act allows the municipality to “…obtain a benefit cost statement on its own initiative …”, the City did not do so. Accordingly, there was no evidence put forward by the City to answer the evidence of the appellants regarding the cost benefit of the dyke and pumping station and the Engineer’s evidence falls short of rebutting the evidence adduced by the appellants. The only information provided by the Engineer was estimates not supported by any cost benefit report or calculations by someone qualified to provide opinion evidence on the cost benefit issue, including the future costs of operating and maintaining the dyke and pumping station. The Engineer recognized that he did not have the expertise to provide this information.

This Finding addresses the appeals of the aforementioned twenty-eight landowners.

Ecological Value of Forested Lands and Provincially Significant Wetlands

The Tribunal received considerable evidence and information about the ecological value of forested lands, wet forested lands and Provincially Significant Wetlands from a number of witnesses during this hearing, especially Mr. Robert Paquette and Ms. Rachel Samson and, while the evidence of these persons does not qualify as expert evidence for the reasons previously outlined, their evidence and the reports or technical papers filed as part of their evidence are receivable under s. 15 (a) and (b) of the SPPA and should be considered. One of these references was to a comment made by RVCA watershed ecologist Martin Czarski, which appeared in an article in the Ottawa Citizen on July 5, 2017 entitled New Jock River issues: Not just development, but future flooding, which is quite applicable to this project, as follows “… we have dropped below some very important ecological thresholds in terms of forest and wetland cover.” The Tribunal understands and appreciates the value of these lands, not only within the watersheds of Cranberry Creek and the Rideau River, but throughout Ontario. Ecological Values and Social Values should form part of a Cost – Benefit Analysis carried out under the Act.

An Improvement Project

Throughout the Report, and many times during the hearing, the Engineer has stated that the work proposed is “maintenance” or a “reinstatement” or a “reinstallation”, terms that the Tribunal finds confusing and somewhat misleading. Regarding the proposed open Drain work, to be clear, it is stated that “… the profile (will be) in general conformance with the previously approved 1969 profile updated with metric stationing and elevations” which can be considered as maintenance; however, in addition, it is stated that the sides of the Drain will be flattened to a slope of 2:1 from the previous slope of 1.25:1 and the 4th Line Road culverts will be lowered and three farm lane crossings will be replaced, all of which are considered improvements. So, in fact, the open drain work will be an improvement, certainly good improvements to reduce erosion and upgrade road and lane crossings, but still “improvements” rather than “maintenance”. Regarding the proposed pumping station, however, one has not existed for almost 30 years (since 1991) and increasing the pumping capacity from 3000 IGPM to 33,000 IGPM is definitely an “improvement”, not a “reinstatement” or a “reinstallation”. Properly classifying such a proposal as “an improvement” could be an issue with the RVCA as well as with OMAFRA, as its ADIP policy states that grants will not be paid on improvement projects that drain through or from significant wetlands, which is definitely the case here (emphasis added).

The Dries & Todgham Paper entitled ‘Drainage Assessment Revisited’

This paper contains assessment principles that have been, and continue to be, used by the majority of engineers who prepare reports under the Act throughout Ontario. The paper was presented by two very experienced drainage engineers, Mr. H. Todgham, P. Eng. and Mr. E, Dries, P. Eng., at the 1988 Drainage Engineers Conference and was introduced at this hearing by the appellants, as exhibit 19. It was also referred to by the Engineer during his evidence. The methodology explained in this paper has also been used exclusively in OMAFRA Publication 852 entitled A Guide for Engineers working under the Drainage Act in Ontario, released in 2018. Accordingly, the Tribunal considers the assessment principles described in the Dries & Todgham paper to be unquestionably fair and reasonable and, therefore, will apply them in this decision.

The Land Use Factor for Forested Lands

The Tribunal finds that the Engineer’s application of a LUF of 1.0 to the forested land within the drainage area, that is the same LUF as applied to cleared, worked agricultural land, is in error and that the Engineer’s principle six, as follows, has been incorrectly applied.

6. In assessing lands covered with bush and trees, if the situation is such that once the drain is in place, the property owner will be able to clear the bush and cultivate the land, then the property should be assessed in the same way as land already under cultivation, unless there are agreement(s) or legal restrictions which prevent clearing and cultivation. (Emphasis added.)

This principle has been taken from the Dries & Todgham paper but has been incorrectly applied in this Report, as this Drain has been ‘in place’ for well over 100 years and the only ‘bush’ areas within close proximity to the Drain are all classified as PSWs that cannot be cleared.

It is the view of this Tribunal that a LUF of 0.5 should have been applied to all forested land, except for PSWs, assessed within this Report. Furthermore, if forested land is cleared in the future, a LUF of 1.0 should be applied to such properties the next time the maintenance schedule for the Drain is revised.

This Finding addresses the appeals of landowners Whitmore, Wendt, Paquette, Buchanan, Begg, C. MacDonald, M. MacDonald, Carter, Crawford, Ham, Harper, Leger, Carrigan, Storie, William Mackey, Wayne Mackey, L. Nichol, S. Nichol, Severn, Maynard, Scharff, Muehlherr, Rollocks-Bonnick and Wallace, as well as concerns raised by parties MacGregor and Khulbe.

The Land Use Factor for Provincially Significant Wetlands (PSWs)

In the Report, the Engineer applied a LUF of 0.5 to all PSWs. A number of owners of PSWs argued that their lands are natural and quite wet and do not artificially cause water to flow to the Drain. Many photos of such lands were submitted as evidence. The Tribunal does not agree with applying a LUF of 0.5 to these properties for assessment purposes. During his evidence regarding the PSWs only within the Pump Station Benefit Area, the Engineer acknowledged that, upon further reflection and consideration of the evidence submitted by the appellants, he now feels a fair and reasonable resolution to this matter would be to apply a LUF of 0.0 to these PSW areas, rather than the 0.5 factor that was previously used, since they are ‘protected’. The Engineer suggested that this alteration should apply only to the Benefit assessments of these properties, not to the outlet assessments. The Tribunal agrees that a lower LUF should be applied to all PSWs, but not just to the PSWs in the Pump Station Benefit area, and not just for Benefit assessments. Accordingly, this Tribunal is of the view that a LUF of 0.0 should be applied to all PSW properties within the entire drainage area, for both benefit and outlet assessment calculations. However, a LUF of 0 should not apply to any PSWs that have been cleared, such as parts of properties #115, #121, #122, #248 and #249.

This Finding addresses the appeals of landowners Wendt, Earl, C. MacDonald, M. MacDonald, Carter, Harper, Storie, L. Nichol, S. Nichol, Severn, as well as the concern raised by M. Khulbe.

Assessments for a Pumping Station

The evidence established that the primary reason for proposing to construct a dyke is to hold back the water from the River so as to protect the lands in the “Pump Station Benefit Area” from a high water level in the Drain and a resulting high water table in the adjacent low lands. But the dyke obstructs the outlet for the water flowing down the Drain from the upstream lands; therefore, a pump is needed to provide outlet for that water so as to protect the lands in the “Pump Station Benefit Area” from a high water level in the Drain and a resulting high water table in the adjacent low lands. Yet, while the lands in the “Pump Station Benefit Area” are being doubly protected, initially by the dyke and secondly by the pump, the Engineer assessed only 25% of the pump station construction cost and 25% of the maintenance and operational costs to these lands, and 75% to the upstream lands. This assessment split does not seem fair and reasonable especially when one considers that, in the 1969 report, 100% of the pump and dyke cost was assessed to the adjacent low lands, and since, in the afore-mentioned Dries & Todgham paper, it is stated that one of the things that should be considered as a “Benefit”, as set out in s. 22 of the Act, is “Installing a pump to lower the water level in the drain, thereby providing more depth of outlet for adjoining subsurface drainage systems which would in turn lower the water table in the adjoining land.” Accordingly, in such circumstances, it is the view of this Tribunal that a much greater portion of the initial construction cost, as well as the maintenance and operational costs, should be assessed to the lands in the “Pump Station Benefit Area” as benefit, and a much lesser portion of the cost should be assessed to all of the lands within the drainage area as outlet.

The James and Mary Johnston Property

This appeal objected to details of the proposed access road to the proposed pumping station. As a result of the decision of the Tribunal to set the Report aside, it is not necessary to address this appeal.

The Randal and Heide Lavier Property

Regarding the appeal by Mr. K. Randal Lavier and the plan he provided in exhibit 5 and the detailed LiDAR mapping provided by Mr. Franklin in exhibit 10, the Tribunal finds as follows:

• that a triangular area of 0.73 hectares in the northeast part of the property should not be included within the drainage area and should be removed, thereby reducing the assessed area from 14.39 hectares to 13.66 hectares; and

• that the referenced 4-acre (1.62-hectare) area does drain to the small, unworked depression in the southeast corner of the property but then does eventually find a subsurface outlet through the neighbouring property into the Cranberry Creek watershed such that it should remain assessed and have a LUF of 1.0 applied to it; and

• that the remainder of the property, being 12.04 hectares, is underdrained to the north into the Johnston Drain and, as such, should have a LUF of 0.66 applied to it; and

• that, taking these adjustments into consideration, the “factored area” for this property should be 9.56 hectares, in any new assessment schedule prepared for this Drain.

The Phyllis Begg Property

Regarding the appeal by Ms. Phyllis Begg, the Engineer, in his evidence, explained that he recently determined there is a discrepancy with respect to the area of this property (#147) between the actual measured area and the area for property assessment purposes as determined by MPAC. The measured area of 53.71 hectares, or 132.72 acres, was used in the Report and the property was assessed as one property; however, according to MPAC, there are two properties of land involved here with two distinct Roll Numbers, one which is 40.47 hectares or 100 acres in area and one that is 10.11 hectares or 25 acres in area, for a total of 125 acres as claimed by Ms. Begg and Mr. Robinson suggests that the MPAC information should be used. Accordingly, the Tribunal finds that the Phyllis Begg land should be listed as two properties, as above-mentioned; and further that, a LUF of 0.5 should be applied to the forested land, being at least 40.5 hectares of the total area.

The William and Wayne Mackey Properties

Regarding the William and Wayne Mackey properties, properties #174 and #168A respectively, William Mackey represented himself and his brother Wayne.

Based on the evidence of William Mackey, this Tribunal is of the view that a LUF of 0.5 should be applied to the forested/MNRF managed lands on these two properties.

William Mackey also testified that clear cutting, clearing and underdraining has recently taken place on property #169, and that a new open drain outlet to the McFadden Drain has been excavated across property #171 for property #169. In light of this evidence, the drainage area boundary affecting these properties, as shown in the Report, may have changed. Accordingly, a site inspection of the said properties would be required to determine the correct drainage area, and the assessed areas may require amendments due to this work.

The Scott Carrigan, Wanda Bracken and Sandra Lueck Property

and the James and Donna Pantalone Property

In response to the appeals of Mr. Scott Carrigan and Mr. Jim Pantalone regarding the assessed areas in properties #191 and #189 respectively, the Engineer obtained and presented very detailed LiDAR contour mapping during the hearing, as exhibits 62 and 75, that revealed an error in the location of the drainage area boundary that affected these two properties as well as properties #194, #541, #542 and #543. Accordingly, the Tribunal finds that the assessed areas of the following properties should be reduced as indicated:

• #189, the Pantalone property, from 11.40 to 11.20 hectares;

• #191, the Carrigan et al property, from 23.07 to 19.30 hectares;

• #194 from 20.23 to 19.08 hectares;

• #541 from 0.48 to 0 hectares;

• #542 from 0.42 to 0 hectares; and

• #543 from 0.52 to 0 hectares.

The Stephane Maynard and Martine Rochon Property

Based on the evidence of Stephane Maynard that:

• the culvert under Mackey Road that his property #140 has to use for outlet is not low enough to provide his tile drainage system with proper outlet, as it is 1.5 feet too high and the Drainage Superintendent advised that it cannot be lowered further; and

• the portion of the Staidler Municipal Drain that his property could drain to was abandoned by the City in 2017; and

• since his property has a significant vernal pool in the wooded portion that contains standing water well into June; and

• since approximately 20% of the property is a non-evaluated wetland, as shown on the MNRF Natural Heritage Area mapping;

the Tribunal finds that a LUF 0.55 should apply to this property due to the insufficient outlet and the wet forested area.

The Duane and Debra Scharff Properties

Properties #161 and #192 are owned by Duane and Debra Scharff. Mrs. Scharff provided the following evidence to the Tribunal:

• 5 acres, or 2.02 hectares, of property #192, containing the house and barn, were recently severed and sold, therefore, the assessed area for this property should be reduced from 17.83 hectares to 15.81 hectares and a new property created for the house and barn property; and

• property #161 is 30% forested and 70% wetland due to a Ducks Unlimited weir that creates a very large flooded area; and

• the Engineer was not aware of this weir and flooded area before preparing the Report and after becoming aware of it he recommended to the Court of Revision that the LUF be lowered, but it was lowered by only 0.1 to 0.9, which is still much too high, as it should be 0.5; and

• property #192 is entirely a low, wet forested area with no watercourse of any kind on it so its LUF should be much lower than 1.0; and

• exhibit #24 indicates that the soil capability for agriculture on these properties is mostly 6, possibly with some 4 and organic soil as well, none of which are suitable for agricultural operations.

Accordingly, the Tribunal finds that the following information requires correction in the Report:

• the assessed area for property #192 should be reduced from 17.83 hectares to 15.81 hectares and a new 2.02-hectare property created for the recently severed house and barn property; and

• since the balance of property #192 is entirely a low, wet forested area, the LUF applied to it should be 0.5; and

• property #161 must be investigated to determine if 70% of the area is wetland due to a Ducks Unlimited weir that creates a flooded area and, if found to be correct, a LUF of 0.25 should be applied to that area; and

• since the balance of property #161 is forested, it should have a LUF of 0.5 applied to it, such that the LUF for the entire property should be 0.325.

The Gregory Foster and Family Property

Mr. Gregory Foster’s evidence was that the property he owns at 6864 3rd Line Road, which is located immediately north of the drainage area boundary, has been tile drained southerly into the Cranberry Creek drainage area and has not been identified or assessed in the Report. Accordingly, based on information subsequently provided by the Engineer, the Tribunal finds that:

• this property is 13.08 hectares or 32.32 acres in area and contributes flow to section 2 and then to section 1 of the Drain; and

• this property is outside of the 1000 metre DF line for both sections 2 and 1; and

• this property is entirely cleared, worked agricultural land, but only the underdrainage water flows into the Cranberry Creek Drain; and

• this property should have been included as an assessed property using a modified LUF of 0.33.

Municipal Roads

In its review of the Report, the Tribunal noticed that a number of municipal roads were omitted from the Section 2 assessment schedule, namely Dilworth, Mackey, Cowell, McMullen, Malakoff, Paden, Mulholland, Gallagher, and Harnett. These roads should have been included with a LUF of 4.0 applied to the affected areas.

The Owen Severn Property

The evidence of Mr. Owen Severn was that:

• according to the City’s 2016 Land Evaluation and Area Review, his property (property #65) has no reasonable capacity for agriculture; and

• his property is currently not used for agriculture and has not been for at least 30 years; and

• 65% of his property is classified as PSW; and

• the westerly drumlin area on the property is high and dry and completely forested and has correctly been excluded from the pump station benefit area; and

• the easterly drumlin area on his property is also high and dry and completely forested but has incorrectly been included in the pump station benefit area and the Engineer recommends that it be eliminated therefrom, and this is also the case with the neighbouring property to the south, the Harper property; and

• his property was not assessed for benefit in either the 1969 or the 1991 Engineer’s Reports and that the 1991 report was prepared by Mr. Robinson.

Accordingly, the Tribunal finds that, for the above-noted reasons, property #65 should not have been within the pump station benefit area.

The David and Bronwyn Harper Property

Regarding his property, property #68 located in the extreme southeast part of the pump station benefit area, the evidence of Mr. David Harper was that:

• similar to the Severn property immediately to the north, the westerly drumlin area on his property is high and dry and mostly forested and has correctly been excluded from the pump station benefit area but the easterly drumlin area on his property is also high and dry and completely forested but has incorrectly been included in the pump station benefit area and the Engineer recommends that it be eliminated therefrom; and

• the property consists of 16.4 hectares of wetlands (some of which is PSW), 7.6 hectares of Christmas tree plantation, 3.1 hectares of open fields, with most of the remaining area being forested; and

• relying on his map exhibits and his personal knowledge of the property, he advised that the easterly portion of the property drains east and south toward Highway 416, not north into the neighbouring Severn property; and

• the property was not assessed for benefit in the 1969 or the 1971 reports, it is over 3000m from the site of the proposed pumping station, the property does not abut or directly outlet into the Drain, and it is not tile drained. In any revised Report, the property should not be assessed for pump station special benefit.

Accordingly, based on this evidence and information, the Tribunal finds that this property, property #68, should not have been within the pump station benefit area and should not have been assessed for pump station benefit in this Report.

Maintenance Assessment Schedule for a Pumping Station

The Maintenance Assessment Schedule for the pump station included in the Report had the benefiting properties paying 25% of the operating and maintenance costs and the properties assessed for outlet paying 75%, and this was not changed in the decision of the Court of Revision. Many appellants argued that this arrangement is unfair as it is not the upstream lands that require the pumping station and a much greater portion of the operating and maintenance costs should be directed to the lands in the pumping station benefit area that do require the station. The Tribunal agrees with this argument.

Assessments for the Open Drain Improvement

Regarding the open Drain improvement work proposed in this Report, the Engineer used a benefit/outlet assessment split of 10% - 90% for all three sections of the Drain, that is, for the entire 4.5 km downstream length, whereas the Dries & Todgham assessment method recommends increasing the benefit assessment portion when moving upstream. Upon questioning, the Engineer advised that he did this because this length of 4,572 m is relatively short as compared to the total length of the drainage area, which is approximately 12,000 m; however, the Tribunal finds that reasoning to be flawed because, if that same ratio was to be applied to a drain that extended for the entire length of the drainage area, the upstream portion would be assessed only 30% for benefit, which is much less than recommended in the Dries & Todgham assessment method. It is the view of the Tribunal that this sizable departure from the Dries & Todgham method was not justified.

Past Tribunal Decisions

In its closing argument, the City referred to a number of past decisions of the Tribunal, dating back as far as the year 2000. This panel is not bound by previous Tribunal decisions. It is important to emphasize that the role of the Tribunal is to intervene and correct significant errors or omissions. Each appeal must be decided on the facts and the evidence adduced during the hearing. As indicated previously, we agree with the principles underlined in the Tribunal decisions cited by the City and have applied these in this decision.

Including Possible Grants and Net Assessments in the Report

The Tribunal noted that the Engineer included columns entitled ‘1/3 Grant’, ‘Allowances’ and ‘Total Net Cost’ in the Assessment Schedules in the Report. For many years, OMAFRA has been advising engineers to NOT include these in drainage reports and, referring to the immediate above-mentioned paragraph relating to past Tribunal decisions, it is worthy of note that the decision Bartlett Creek Municipal Drain, 2000 ONAFRAAT 4, 2000 ONAFRAAT4, to which the City referred, contained the following sentence “Net Assessment is not a statutory component of the schedules and the Tribunal has often and roundly criticized its use as inappropriate and misleading.” Furthermore, in section 9.6.3 of the recent OMAFRA Publication 852 entitled A Guide for Engineers working under the Drainage Act in Ontario, it is specifically stated that “The assessment schedule should not include columns for allowance, grant or net assessment for the following reasons: …”.

Errors, Omissions and Alterations

If the Report was referred back to the City and the Engineer for revision by deleting the pumping station and dyke from the proposed work, that alone would be a substantial amount of work; however, in addition, the following errors, omissions and alterations would have to be corrected, added or made:

• the LUF applied to the many forested lands would have to be changed to 0.5;

• the LUF applied to the many PSWs would have to be changed to 0.0;

• detailed investigations would have to be made of any PSW properties that have been cleared, or partially cleared, including properties #115, #121, #122, #248, and #249, and appropriated LUF’s applied;

• the LUF for property #1 (Lavier) would have to be changed;

• the listing and total area of property #147 (Begg) would have to be changed;

• the LUF’s for properties #174 and #168A (Mackey brothers) would have to be changed;

• a detailed investigation would have to be made of property 169 with respect to the LUF and drainage area boundary;

• a detailed investigation would have to be made of property #171 due to the effects of the work done on property #169;

• the assessed areas of properties #189, #191, and #194 would have to be revised;

• properties #541, #542 and #543 would have to be removed from the assessed area;

• a detailed investigation would have to be made of property #140 (Maynard/Rochon) and the LUF revised;

• a detailed investigation would have to be made of properties #161 and #192 (Scharff) due to a severance and the Ducks Unlimited wetland and a new property created and LUF’s changed;

• the Gregory Family Farm property would have to be added to the assessed area, for underdrainage only;

• all applicable roads would have to be included in the Section 2 assessment schedule;

• the benefit/outlet assessment split for the improvement and maintenance work on the existing open drain would have to be revised to something more in line with the Dries & Todgham method such as 8% benefit for section 1, 19% for section 2 and 31% for section 3;

• the Pump Station Benefit Area designation would have to be deleted from the drawings and the assessment schedules;

• the columns entitled ‘1/3 Grant’ and ‘Total Net Cost’ would have to be deleted from the Assessment Schedules; and

• new approvals would have to be obtained from the RVCA, Fisheries and Oceans Canada and the MNRF for the revised works.

Should this Report be Set Aside?

The Report involved in this hearing has, as its main element, the construction of a dyke and pumping station. The Tribunal has determined, on the basis of the evidence before it, that the benefits to be derived from the construction of the dyke and pumping station are not commensurate with the estimated cost thereof. With the removal of the dyke and pumping station from the Report, plus correcting the numerous errors and omissions described above, as well as the substantial amendments required to the assessment schedules contained in the Report, both for construction and future maintenance, it is not possible to amend this Engineer’s Report. While the Tribunal is a specialized Drainage Act decision-maker, the Tribunal is reluctant to impose a result of its own creation. It is abundantly clear that Cranberry Creek Municipal Drain requires maintenance and minor improvements to the existing open channel system. No one objected to this work at the hearing. This work should be planned and designed in a new report that should incorporate some of the recommendations or findings of this Decision. Therefore, the 2017 Engineer’s Report prepared by Robinson Consultants Inc. shall be set aside.

Order of the Tribunal

1. The appeals under ss. 48(1) are hereby granted.

2. The Report of Robinson Consultants Inc. dated December 20, 2017 is hereby set aside.

3. The appeals under ss. 54(1) of the Act are set aside as a result of above-mentioned Order 2.

4. The costs of the Municipality in respect of these appeals which, for greater certainty shall include the Engineer’s fees and expenses for preparing the 2017 Report, the Engineers fees and expenses associated with the Court of Revision and the Engineer’s fees and expenses for preparing for and attending this hearing, shall all be paid entirely by the Municipality out of general funds.

5. The appellants and all other parties shall pay their own costs of these appeals.

So orders the Tribunal.