Agriculture, Food and Rural Affairs Appeal Tribunal

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

1 Stone Road West, 2nd Floor NW Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: LOU NIEUWLAND VS CITY OF PORT COLBORNE

MICHENER DRAIN 2021 -AMENDED-

STATUTE: Drainage Act

HEARING: SEPTEMBER 17TH AND OCTOBER 19TH, 2021

DATE OF AMENDED DECISION: JANUARY 04, 2022

004Michener21

NEUTRAL CITATION: 2021 ONAFRAAT 18

FILE NO.: 004Michener21 DATE: 2021/12/21

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

AND IN THE MATTER OF an appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Lou Nieuwland of Port Colborne, Ontario under Section 48 of the Drainage Act, with respect to the Michener Municipal Drain in the City of Port Colborne,

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure,

BETWEEN:

Lou Nieuwland Appellant

– and –

City of Port Colborne Respondent

Hendrik Nieuwland, Counsel for the Appellant

Paul Marsh, P. Eng., acting for the Respondent

HEARD: September 17 and October 19, 2021

Before: Katie DeBlock Boersma, Vice-Chair; Andrew McBride, Vice-Chair; David Fawcett, Member.

Appearances: Lou Nieuwland, Appellant Hendrick Nieuwland, Counsel for the Appellant Dave Bankert, Witness for the Appellant John Zutt, Witness for the Appellant Brian Pye, Witness for the Appellant Pete Mason, Witness for the Appellant Marc Gaudet, Witness for the Appellant Paul C. Marsh, Respondent Representative and Engineer who prepared the Report Alana Vander Veen, Drainage Superintendent for the Respondent Charlotte Madden, Municipal Clerk and Clerk of the Tribunal

AMENDED DECISION

1. The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing virtually on September 17 and October 19, 2021. The Engineer’s Report dated May 7, 2020, for the Michener Municipal Drain (the “Report”) was prepared by Paul C. Marsh, P. Eng., of EWA Engineering Inc. (the “Engineer”). An appeal was filed by Lou Nieuwland (the “Appellant”) under section 48 of the Drainage Act, RSO 1990, c D.17 (the “Act”).

Preliminary Matters

2. Prior to the hearing, the Tribunal issued an order making all persons currently assessed in the Schedule of Assessment prepared in 2020 by the Engineer parties to the hearing. The Clerk of the Tribunal filed an Affidavit of Service, dated August 16, 2021, as proof that all parties had been served with the Notice of Hearing.

Background

3. The Michener Municipal Drain (the “Drain”) is located in the Eastern portion of the City of Port Colborne. It is a 1728-metre long open channel, serving an area of 135 hectares. It outlets into the Wignell Drain (the “Wignell”) immediately north of Lakeshore Rd. East. The Drain currently ends just north of the Friendship Trail.

4. A previous report was prepared for the Drain by R. V. Anderson dated July 28, 1978. This report was modified by a subsequent report prepared by Wiebe Engineering Group Inc. dated November 15, 1996.

5. The Wignell outlets into Lake Erie and is impacted by lake levels. A report for the Wignell is also being prepared for the City by the Engineer. In addition, the Engineer is preparing a report for the Port Colborne Drain which also outlets into the Wignell.

6. Prior to appointing EWA Engineering Inc. to prepare this Report, two other engineering firms were retained by the City of Port Colborne to complete Reports on all three of the above-mentioned Drains. The first was Wiebe Engineering Group Inc. (“Wiebe”), which was appointed in 2001 and stopped work on the project in 2005 or 2006 after declaring bankruptcy and being paid approximately $92,000 by the City. The second was AMEC Foster Wheeler (“AMEC”), which was appointed in 2012. They terminated their contract prior to completing the project. Of the amount previously paid to Wiebe, $11,043 has been allocated to the Michener Drain in this Report. Of the amount previously paid to AMEC, $8,071 has been allocated to the Michener Drain in this Report. These allocations were made on a drainage area ratio basis amongst the three drains. Upon appeal at the Court of Revision, the AMEC amount was lowered to $4,035.

Issue

7. There are two issues for the Tribunal to consider in this appeal:

a. Should the work on the Michener Municipal Drain be paused until the report and works on the Wignell Drain are completed to ensure sufficiency of outlet for the Michener Municipal Drain?

b. Should the engineering costs in the Report be reduced to the provincial average of 23% or, in the alternative, should the engineering costs for Wiebe and AMEC be removed from the project cost?

Evidence of the Parties

Lou Nieuwland, Appellant

8. Lou Nieuwland and his wife are the majority owners of Whisky Run Golf Club Ltd. (“Whiskey Run”). In total, Mr. Nieuwland and his wife own 29.231 Ha in the Michener watershed.

9. Mr. Nieuwland testified that the Drain runs through Whiskey Run. He advised the Tribunal that he has experienced no flooding from the Drain on his lands. However, he stated that every year they experience flooding from the Wignell on the section of Whiskey Run known as the Serpent 9 holes.

10. Mr. Nieuwland stated that after a significant rainfall, the Wignell will breach its banks and flood the surrounding property. The water comes from the south and floods the Serpent 9 holes.

11. He testified that often a storm event will create a dam at the mouth of the Wignell near Lake Erie. This dam prevents water draining from the Wignell into Lake Erie, which is its outlet.

12. Pumps used to be located at the sluice gates at the municipal water control station for the Wignell on Lakeshore Road East. These pumps have been removed, and Mr. Nieuwland believes the removal of these pumps has contributed to the flooding issue in the Wignell.

13. The flooding has caused Whiskey Run to close the Serpent 9 holes for 1-2 weeks every year, with an estimated annual revenue loss of $20,000.

14. Mr. Nieuwland testified that he raised his concerns with Mr. Marsh. He entered into evidence an email from Mr. Marsh, dated November 3, 2020, which states “The Michener outlet is to the Wignell and thus depends on the Wignell for sufficient outlet.”

15. Mr. Nieuwland expressed concern that if the work on the Drain is done before any work is completed on the Wignell, the flooding problems will be exacerbated, as water will only become more backed up in the Wignell.

Dave Bankert

16. Dave Bankert farms lands located in the Michener watershed. He has farmed for 20 years. Mr. Bankert testified that the Drain has silted-in in some places, but overall is functioning fine.

17. Mr. Bankert rents land owned by Allert Van Kralingen in the north portion of the Michener watershed. There is a frequent flooding issue on the west side of these lands, on the east side of Lorraine Road. Mr. Bankert stated that the works on the Drain need to be completed, as well as maintenance on the proposed Branch 2 and the roadside ditch, to address this flooding.

18. On cross examination, Mr. Bankert agreed that the Michener will benefit from the proposed work and needs maintenance.

John Zutt

19. John Zutt farmed lettuce, cabbage and onions on lands along Lakeshore Road East in Port Colborne. He stopped farming in 1999.

20. Mr. Zutt stated that the Wignell runs parallel to Lakeshore Road East and abuts the lands he used to farm. He also formerly farmed lands now owned by the Appellant, which are located immediately west of the Drain and north of the Wignell.

21. When Mr. Zutt was farming there were no issues with flooding of the Drain, but there were flooding issues with the Wignell.

22. He testified that there were pumps located at the municipal water control station for the Wignell. He stated that the pumps were there to help prevent the Wignell from flooding. When it was going to rain, landowners could turn on the pumps on their own. This would lower the water levels in the Wignell and help prevent flooding when the rain came.

23. The pumps would pump the water out past the sluice gates located at the municipal water control station and into Lake Erie.

Brian Pye

24. Brian Pye owns some of the lands farmed by Mr. Bankert. Mr. Pye testified that Mr. Bankert cleaned out the ditch along the north edge of his lands at his own cost, allowing the tile drains to drain Mr. Pye’s property.

25. Mr. Pye advised the Tribunal that there is an issue with phragmites in the Michener. Phragmites is an invasive plant species that creates a large problem in drains and ditches.

26. He opined that as soon as the soil in the Michener is disturbed, phragmites will take over. He advised that even if the Michener is seeded, and there is a large rainfall, the seed will wash away and phragmites will grow in those locations.

27. He entered several photos into evidence showing phragmites in the Drain.

28. On cross examination, Mr. Pye stated that the Drain works the way it is, and it should be left alone. He opined that the municipality should have had a maintenance program in place for the Drain long ago and, if they had, the phragmites problem may not be such an issue.

Pete Mason

29. Mr. Mason owns lands located immediately east of the Drain, at the downstream end.

30. He testified that the Drain drains well. He agreed there is a lot of overgrowth in the Drain. He stated that he has never had a flooding issue with the Drain and that the water flows out of the Drain into the Wignell as it is supposed to.

Allert Van Kralingen

31. Mr. Van Kralingen was unable to attend the hearing. The Appellant entered a Declaration, dated August 25, 2021 and signed by Mr. Van Kralingen, into evidence.

32. Mr. Van Kralingen owns lands farmed by Mr. Bankert. He has observed the flooding adjacent to Lorraine Road, but no other flooding issues along the Drain.

Marc Gaudet, P. Eng.

33. Mr. Gaudet is a professional engineer. He was qualified as an expert witness on behalf of the Appellant.

34. Mr. Gaudet testified that there is a challenge to doing the work set out in the Report before the work on the Wignell is complete. In his opinion, since the Drain outlets into the Wignell, they must be addressed concurrently.

35. Improvement of the Drain will provide increased flow and intensity into the Wignell during storm events. If the work on the Wignell has not been completed prior to the improvement of the Drain, water will back up in the Wignell and exacerbate flooding in the Drain.

36. Mr. Gaudet confirmed that the Wignell is the only outlet for the Drain.

37. He stated that pumps are required at the outlet from the Wignell into Lake Erie to deal with the flow. There is zero percent slope in the Wignell for 2 km before it reaches its outlet into Lake Erie. This means that, without pumps, there will be a backwater effect during storm events that will flow all the way back into the Drain, causing increased flooding.

38. In Mr. Gaudet’s opinion, until work is done on the Wignell, it does not provide a sufficient outlet for the Drain.

39. Mr. Gaudet clarified that he does not have an issue with the Report itself, but the fact that the municipality wants to deal with the Drain separately from its outlet, which will only create more flooding problems.

Paul C. Marsh, P. Eng.

40. Mr. Marsh is a professional engineer and prepared the Report. He was qualified as an expert witness on behalf of the City of Port Colborne.

41. Mr. Marsh provided an overview of the Drain and the Report. He stated that the Drain has a sufficient outlet and has no problem draining into the Wignell, as it has for years.

42. In his opinion, the Wignell report is a separate matter and has no bearing on the issues in this case. He indicated that the Wignell report will be presented to the City by the end of the year. He would not speak to the particulars in that report.

43. Mr. Marsh testified that the engineering fees included in the Report have three components: those paid to Wiebe, those paid to AMEC, and those paid to his firm. The Court of Revision did adjust some of those fees by reducing the AMEC fees by 50%. Otherwise, the portion of the fees from Wiebe and AMEC that were allocated to the Drain have been included in the cost estimate for this project and have been assessed to all of the affected lands.

44. He stated that substantial portions of the work done by Wiebe and AMEC were not used in the Report.

45. On cross-examination, Mr. Marsh confirmed that the engineering fees represent 43% of the total costs. He stated that the benchmark for engineering fees versus capital costs when doing drainage works is 25%. However, he stated that sometimes the engineering fees are much higher than the physical work to be done depending on the circumstances.

46. Regarding the outlet of the Drain, he stated that the Michener’s sufficient outlet is into the Wignell and the Wignell’s sufficient outlet is into Lake Erie. Any concerns with flooding in the Wignell will be addressed in the Wignell report. He agreed that there have been reports of flooding in the Wignell.

47. Mr. Marsh stated that right now, the flow in the Drain is less than what it should be. The work proposed in the Report will increase the flow to the level it should be with proper maintenance. He did not agree that this was an improvement to flow.

48. With respect to the pumps at the outlet of the Wignell into Lake Erie, he stated that the pumps were added sometime after 1979, and that the control structure where the pumps used to be located is part of the Wignell.

49. Mr. Marsh confirmed that there is an extent to which the Wignell will always breach its banks depending on the severity of a storm event.

Findings and Analysis

50. Section 48(1) of the Act reads as follows:

48 (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed,

may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.

51. The Tribunal agrees with the Appellant that, if the works on the Drain proceed prior to the completion of the outlet improvement works on the Wignell, the benefits to be derived from the works on the Drain will not be commensurate with the estimated cost thereof.

52. The Tribunal accepts the Appellant’s evidence that if work is completed on the Drain before work is completed on the Wignell, there will be an increased risk of flooding in the Drain due to the potential for back up of water in the Wignell during storm events. This means that the Wignell is currently not a sufficient outlet for the Drain.

53. A drain without a sufficient outlet will not provide benefits commensurate with the cost of the works.

54. The City of Port Colborne did not provide any evidence to contradict the Appellant’s position that increased flow from the Michener will likely not be able to outlet properly into the Wignell in its current condition.

55. With respect to the Appellant’s request to lower the engineering costs in the Report, the Tribunal notes that the Appellant did not file an appeal under Section 52 of the Act to the Court of Revision. A section 52 appeal is a prerequisite for an appeal to the Tribunal under Section 54 of the Act, which would properly bring the assessments before the Tribunal, including the engineering fees in the Report. As such, the Tribunal finds that it cannot make an order regarding the amount of the engineering fees included in the cost estimates in this Report.

56. The Tribunal does note that the issue of the balance of the engineering fees of AMEC and Wiebe will be a matter to be addressed in the reports yet to be completed for the Wignell and Port Colborne drains. Appeals pursuant to sections 52 and 54 of the Act will remain available with respect to how those engineering fees are dealt with in these future reports.

ORDER OF THE TRIBUNAL

57. The Appeal by Lou Nieuwland is allowed in part and the Michener Drain Report shall be set aside temporarily. The Tribunal orders that the following must be completed before the Michener Drain Report can proceed to the provisional by-law stage:

a. The City of Port Colborne must obtain a complete report on the Wignell Drain;

b. All timeframes for appeals under the Act with respect to the Wignell Drain report must expire, or any appeals filed must be fully disposed of; and

c. The works specified in the Wignell Drain report, from its outlet in Lake Erie to the point immediately west of station 0+400 on the Michener Drain, must be completed, ensuring that the Wignell Drain is a sufficient outlet for the Michener Drain. Once completed, the engineer for the City of Port Colborne must file a Certificate of Completion for this portion of the work, with the Tribunal.

58. The Appellant’s request to reduce the engineering costs included in the Report is denied.

59. On the consent of the parties, the following corrections to the Report shall be made:

a. The in-kind contribution assessment of $3,360 shown as Erosion Control in Section 24 Special Benefit shall be reversed. Instead, this amount will be assessed to the watershed as maintenance allocated as a Section 23 assessment.

b. Section 5.4.2 Sediment Basins paragraph 3 shall be revised to read as follows: a. The cost of constructing sediment basins is shared among upstream lands through a section 23 assessment. b. Remove the text, “However, the sediment basin on the golf course property was shown to exist in the Wiebe Drawing from November 15, 1996 and the reconstruction is 100% allocated to the Whiskey Run Golf Course as a Section 24 Special Benefit.”

c. The last line of the 4.5 Summary of Construction table on page 17 shall be changed from, “1+614 to 1+624 Replace existing culvert with 600mm HDPE with rip rap headwall” to “Replace existing 450mm CSP with 600mm double wall PE pipe”.

d. Section 4.5 Summary of Construction, on page18, shall be revised from 1+170 Station number to read 1+710 (2 instances, second and third rows).

e. On page 17, second row, “Replace existing 500mm CSP with 600mm HDPE” shall be revised to match drawing M.P1 with the text “Replace existing culvert with 750mm HDPE”.

f. On the Appendix C table for the Michener Drain cost estimate (page 3), item M-9 shall indicate that the proposed re-construction of the sediment basin is located at Station 0+260 instead of STA 2+400.

g. The property identified as Roll Number 271104000404800 will be severed and two separate entries shall be created in the assessment tables for an agricultural property retaining the culvert with an allowance for damages during maintenance, and a rural lot consisting of a house and other buildings.

60. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works.

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

Dated at Mitchell, this 21st day of December, 2021.

Released: December 21, 2021

Amended version released: January 4, 2022