Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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:

Glenny Municipal Drain Town of Fort Erie

Glenny Municipal Drain

STATUTE:

Drainage Act

HEARING:

April 08, 2021

DATE OF DECISION:

April 13, 2021

013Glenny19

NEUTRAL CITATION:

2021 ONAFRAAT 5

FILE NO.: 013Glenny19

DATE: 2021/04/13

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 Gloria M. Poulsen of Stevensville, Ontario under Section 54 of the Drainage Act, with respect to the Glenny Municipal Drain in the Town of Fort Erie.

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 10 of the Tribunal’s Rules of Procedure.

BETWEEN:

Gloria M. Poulsen Appellant

– and –

The Town of Fort Erie Respondent

Self-represented

Represented by Dave Maiden, Drainage Superintendent

HEARD: April 8, 2021

Before: Glenn C. Walker, Chair; Edward Dries, Vice-Chair; Peter Koroneos, Member.

Appearances: Ira J. Band, Appellant (appeal withdrawn) Gloria M. Poulsen, Appellant (in writing only) Margarete Taddeo, Drainage Clerk Dave Maiden, Drainage Superintendent Neal Morris, P. Eng., Engineer who authored the Report

DECISION OF THE TRIBUNAL

1The Town of Fort Erie appointed K. Smart Associates Limited to update the existing Engineer’s Report (including repairs and improvements) for the Glenny Municipal Drain. The existing Glenny Municipal Drain first constructed in 1917 with improvements in 1942 requires repairs and further improvements and also new schedules of assessment for future maintenance.

2A Drainage Report was prepared by Neal Morris P. Eng. pursuant to Section 78 of the Drainage Act, R.S.O. 1990, c. D-17.

3The Tribunal received 3 appeals pursuant to Section 54 of the Drainage Act from decisions of the Court of Revision. One appeal was withdrawn before the hearing and a second appeal was withdrawn at the commencement of the hearing.

4The Tribunal proceeded to hear the remaining appeal from Gloria Poulsen. Ms. Poulsen did not attend the hearing. In a letter to the municipality dated March 22, 2021, she indicated that she would not be attending the hearing for health reasons and asked that the Tribunal hear her appeal “without my presence”.

5By letter from the Tribunal to Ms. Poulsen dated March 26, 2021, the Tribunal confirmed that she would not be attending the hearing by Zoom or telephone, that she was not requesting an adjournment and that she wished the appeal to go ahead based on the written material she had filed including her Notice of Appeal and her letter of March 22, 2021.

6The Appellant’s Notice of Appeal and March 22, 2021 letter were accepted into evidence by the panel and made exhibits to the hearing.

7The grounds for the appeal set out in those documents can be summarized as follows:

a) It is unfair to pro-rate the $10,000.00 reduction, caused by having the assessments of the Ministry of Transportation, Ontario and the Town of Fort Erie each increased by $5,000.00, to all the assessed landowners including those classed as “farmers” who already receive a discount;

b) The individual who requested that the drain be cleaned should bear the entire cost;

c) That the allowance for damages of $900.00 will be insufficient to cover the cost of repairing any damage;

d) The assessment will make her property more difficult to market; and

e) The Town of Fort Erie has neglected the maintenance of the drain for forty years and the municipality should now “foot the bill”.

8The Tribunal then heard submissions from Neal Morris, the engineer who prepared the report.

9Mr. Morris testified that his assessment was based on a modified Todgham method. The drain was broken into intervals. He then calculated the costs associated with each interval or section. The cost of each section was levied in Benefit and Direct Outlet to the lands within the section and Outlet Liability was assessed against all upstream lands that drain through each section.

10Ms. Poulsen owns approximately 4.5 ha. Consideration was given to the direction of drainage on the property which was 0.6 ha draining north to Townline Road and 3.9 ha draining west to the open drain.

11Outlet assessment included consideration for variable runoff factors related to land use. 2.4 ha of tree covered lands on the property were assessed at a 0.50 rate.

12Benefit assessment was directly related to the length of the drain running through the Poulsen property and was assessed the same Benefit rate per meter of drain through the property as all other landowners in the section.

13The Tribunal finds that the assessment for Ms. Poulsen’s lands was fair and consistently applied across the entire drain using a modified Todgham Method which is the accepted methodology in Ontario.

14The Tribunal further finds that none of the grounds for appeal raised by the Appellant are supported by the Drainage Act or accepted drainage engineering practices.

15The Tribunal therefor orders:

1. The appeal of Gloria Poulsen is denied.

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

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