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:
Gerald and Jillian Machan vs Town of Minto
Municipal Drain No.69 [Final Decision]
STATUTE:
Drainage Act
HEARING:
May 04, 2022
DATE OF DECISION:
June 02, 2022
018MunicipalDrain21
NEUTRAL CITATION:
2022 ONAFRAAT 17
FILE NO.: 018MunicipalDrain21
DATE: 2022/06/02
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF an appeal submitted by Gerald Machan and Jill Machan of Harriston, Ontario under Section 54 of the Drainage Act, with respect to the Municipal Drain No. 69 in the Town of Minto.
AND IN THE MATTER OF an electronic hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
Gerald Machan and Jill Machan Appellants – and – Town of Minto Respondent
Self-represented
Self-represented HEARD: May 4, 2022
Before: Marc Huneault, Vice-Chair; Robert Fuller, Vice-Chair; and Don McNalty, Vice-Chair
Appearances: Bill Dietrich, Engineer who wrote the report Gerald Machan, Appellant Jill Machan, Appellant
TRIBUNAL DECISION
Preliminary Matters
1A Pre-Hearing Conference was held on March 25th 2022. On Consent of the Respondent Municipality, Gerald Machan may file a new or amended appeal under section 54 of the Drainage Act (“the Act”) and Jill Machan was added as a party to the appeal.
2The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this appeal hearing by Zoom video conferencing on May 4, 2022. The appellants, Gerald and Jill Machan (“the Appellants”) brought a Section 54 Appeal of the Assessments in the Engineer's report for Municipal Drain No. 69-2021 (hereinafter “the Engineer's Report”) prepared by William J Dietrich, P.Eng. (“the Engineer”) dated July 26, 2021 and the decision of the Court of Revision.
3Vice-Chair, Marc Huneault provided direction on the procedure for the hearing and it was confirmed that the Appellants would be representing themselves and would rely on no other witnesses and further that the Engineer would represent the Town of Minto with no other witnesses.
4It was confirmed that the Appellants had resubmitted their appeal on the correct form, dated March 30, 2022.
5The Affidavit of Service of the Notice of Electronic Hearing, the Curriculum Vitae of William J Dietrich and the Engineer's Report were entered as Exhibits #1, #2 and #3 respectively.
Background
6The existing Municipal Drain No. 69 was originally constructed under the authority of a report prepared by James A. Howes, O.L.S. , dated April 15, 1970.
7Municipal Drain No. 69-2021 (“the Drain”) was initiated by a resolution of Council of the Town of Minto under Section 78 of the Act. A resolution of Council appointed Dietrich Engineering to prepare an engineering report relative to the Drain.
8The Drain serves lands described in the Engineer's Report as Parts of Lot 27, Concession 13, Parts of Lots 27 to 30, Concession 14, Parts of Lots 28 to 30, Concession 15 and Part of Lot 29, Concession 16, all in the Town of Minto.
9The original Drain as constructed is described in Section 4.1 of the Engineer's Report and consisted of 2691 metres of open ditch and associated crossing culverts known as the Main Drain and 1120 of open ditch and associated crossing culverts known as “A” Drain.
10The proposed work for Municipal Drain No. 60 – 2021 is summarized in Section 10 of the Engineer's Report and is described as Main Drain (Open) consisting of approximately 407 metres of open ditch excavation, 185 metres of new open ditch construction, 220 metres of open ditch filling, two sediment traps, 1 rock check dam/riffle feature, two farm lane culverts and one road culvert; Main Drain (Closed) consisting of the installation of approximately 1953 metres of 200 to 525 mm dia concrete and HDPE pipe, five concrete catch basins and a plunge pool; and “A” Drain consisting of approximately 1111 metres of open ditch excavation, one farm lane culvert and one road culvert.
11The Appellants noted that their property was principally used for recreational purposes, that the benefit to their property was not commensurate to the cost, and they wished for clarification on how the assessments were calculated and were asking for relief from all or part of their assessment as set out in the Engineer's Report.
12The assessment for construction are set out at Schedule C at pages 17 to 19 of the July 26, 2021 Report for Distribution which has been filed as Exhibit #3. The Total Assessment for Construction is summarized at page 20 of Exhibit #3. A summary of the Appellants assessment is as follows:
Main Drain (Open) $8,856 Main Drain (Closed) zero “A” Drain $2,188 Total Assessment $11,044 Less Allowances $2,100 Net Assessment $8,944
13The Appellants stated that they were seeking a reduction of the assessment for the Main Drain (Open) from $8,856 to $2,558.92. They are also seeking a reduction of the assessment of the “A” Drain from $2,188 to $437.60.
The Issues
14The Appellants appeal had seven (7) paragraphs which can be summarized as four (4) grounds of appeal. Accordingly, the four (4) issues raised by the Appellants are as follows:
Issue #1: The Outlet Liability calculation was elevated due to the application of a Land Use Factor of 0.6 when a Land Use Factor of 0.5 was more appropriate;
Issue #2: The Outlet Liability was excessive as the municipality assessed a portion of the same lands for both the Main Drain (Open) and the “A” Drain calculations;
Issue #3: The January 2021 Draft Report had an assessment of $9,340 for the Main Drain (closed) in error and this was not adjusted in the Report for Distribution as Exhibit #3; and,
Issue #4: The municipality wrongfully assessed a Benefit assessment under section 22 of the Act of $1,000.
15The Appellants also raised an issue in respect to the future maintenance for the Main Drain (Open). This is an issue that is outside of the jurisdiction of the Tribunal as this appeal is under section 54 of the Act. We will not be addressing same as we have no authority to do so under the Act.
Evidence of the Parties
The Engineer
16The Engineer was qualified as an expert witness in the field of drainage Engineering. He provided a history of the 1970 drain and explained the proposed work for Municipal Drain No. 69 including the estimated cost of construction of $734,700 for the project.
17The Engineer stated that a draft report dated January 22, 2021, which was later submitted as Exhibit #5, was prepared and circulated to the affected owners and/or their representatives. This report was revised and the final Report for Distribution was circulated for approval. Further that the Engineer's report dated July 26, 2021 (Final Report) was the report presented to Council of the Town of Minto and is the report referenced in the Provisional By-Law for the Drain.
18The total cost of the project was estimated at $734,700. He stated that the Appellants’ assessment totaled $11,044 representing 1.5% of the project cost. He also stated that he was concerned that the actual cost may exceed the estimated cost due recent inflationary pressures.
19The Engineer referenced and submitted Documentary Evidence which can be described as calculations relative to the assessments on the Appellants property. This Documentary Evidence was entered as Exhibit #4. The impact of the runoff factor for each property and the portion of each section of the Drain used by individual properties was explained in more detail.
20During cross examination by the Appellants it was noted that the Appellants and the Engineer had met in an effort to explain the rational for the assessments on the Appellants property without a successful conclusion. It was noted that the calculations shown in Exhibit #4 were not presented in that form to the Appellants.
21It was acknowledged that the draft report had been prepared and made available to the Appellants. The draft report dated January 22, 2021 was entered as Exhibit #5. It was confirmed that the draft report was not considered by Council and hence was not adopted by Provisional By-Law.
22It was confirmed that the Main Drain (Open) remains in place along the east boundary of the Appellants property and although no physical clean out or maintenance is planned as part of the proposed work, that a grade line for future maintenance for this open ditch adjacent to the appellants land has been included in the Engineer's Report.
23The Engineer stated that the total assessment for the Main Drain (Open) is $225,300 of which the Appellants property was assessed $1,000 for Benefit and $7,856 for Outlet Liability less allowances of $2,100. It was presented that the Appellants property is assessed $1,000 of the total benefit assessment of $109,450 on the Main Drain (Open).
24The total assessment for the Main Drain (Closed) was $394,500. The Engineer confirmed that the Appellants were not assessed for the Main Drain (Closed). The draft Drainage Report dated January 21st 2021 had an assessment of $9,340 as against the Appellants’ lands for Outlet Liability only. The Appellants advised the municipality that there were no tiles connected to the Main Drain (Closed). The municipality accepted same and no assessment was applied against the Appellant's land for the Main Drain (Closed).
25The Engineer stated that the total assessment for “A” Drain is $114,900, of which the Appellants property was assessed Nil for Benefit and $2,188 for Outlet Liability. It was presented that the Appellants property is assessed $1,000 of the total benefit assessment of $109,450 on the Main Drain (Open).
26Under cross examination the Engineer provided an explanation of the calculation for outlet assessment on “A” Drain with reference to the Documentary Evidence entered as Exhibit #4.
27He also confirmed that the open ditch adjacent to the Appellant’s property was under the Main Drain (Open) and was to be maintained by the municipality as an open ditch. He further agreed that the $1,000 Benefit applied to the assessment was a minor benefit. He confirmed that the benefit could be an increase in value or an increase in the benefits with respect to future maintenance.
Appellant Gerald Machan
28Gerald Machan provided references to the assessment schedules and comparison of the area of individual properties relative to the respective assessments for the Main Drain (Open) and the “A” Drain.
29It was noted that the Appellants property was assessed on the Main Drain (Closed) portion of the Drain in the Draft Report entered as Exhibit #5.
30Mr. Machan noted that their property is designated as a Provincially Significant Wetland (PSW). Mr. Machan pointed out the elevation difference between the adjacent lot and the Appellants’ lands. It appears that the road is between two to six feet higher than the elevation of the adjacent property. A number of the photos are consistent with Mr. Machan’s observations that his property is significantly higher along the roadway and that a significant volume of surface water was required to reach his driveway. He also stated that the driveway acted as a berm.
31He also noted that 22.7 ha, which is their total land area, is assessed on the Main Drain (Open) and 3.6 ha was assessed on the “A” Drain. The Appellants questioned why the 3.6 hectares were assessed for Outlet Liability on both the Main Drain (Open) and the “A” Drain.
32Under cross examination by the Engineer Mr. Machan confirmed that their total property would outlet to the downstream Main Drain (Open) and that only a portion would outlet to “A” Drain with no apparent disagreement with the respective areas as presented in the Engineer's Report. Mr. Machan confirmed that all 22.7 hectares drain at some point into the Main Drain. He also did not disagree that the 3.6 hectares also drained into the “A” Drain.
33It was also clarified under cross examination that the Appellants land is not assessed for the Main Drain (Closed).
Appellant Jill Machan
34Jill Machan at the outset to her examination entered a number of exhibits on consent. She also wished to enter video links of a Council meeting of September 21, 2021 and of the Court of Revision and for the Tribunal to view those links as part of the evidence and to be entered as exhibits. The Tribunal deliberated on the appropriateness in this regard and concluded to deny this request. A section 54 appeal is a new hearing pursuant to section 54(3) of the Act. Accordingly, the videos of the meetings of both the Municipal Council and Court of Revisions were not relevant to this determination and were not admitted into evidence.
35Mrs. Machan suggested that the Court of Revision Minutes (Exhibit #11) were somewhat vague so wanted the letter to Court of Revision (Exhibit #10) entered as an exhibit. Mrs. Machan confirmed that there was a meeting to negotiate a resolution to the appeal but it was unsuccessful.
36Mrs. Machan alleged that they had received false information relative to legal and technical representation at the Tribunal and felt that the change in assessment between the draft and final reports were misrepresented as a “reduction” in assessment rather than a correction of an error.
37Under cross examination, Mrs. Machan was asked if their request was to reduce the assessment on the Main Drain (Open) and the “A” Drain. She replied that they were seeking a reduction of the assessment for the Main Drain (Open) from $8,856 to $2,558.92. They are also seeking a reduction of the assessment of the “A” Drain from $2,188 to $437.60. She stated that these were proposed reductions.
38It was confirmed during cross examination that the existing open ditch downstream of the 14th Concession remains in place and will be maintained in the future to the grade line shown on the profile drawings provided with the Engineer's Report.
39It was confirmed that any future clean out of the Main Drain (Open) adjacent to the Appellants property would be from the east side of the drain. The location of the maintenance corridor could be a correction to the report. Under cross examination Jill Machan summarized the Appellants appeal stating they wanted a reduction in their outlet liability assessment reflected by a reduction in the runoff factor used on their land and relief on the $1,000 benefit assessment.
40The Appellants did not introduce any evidence in support of the relief that they were seeking, namely, a reduction of the assessment for the Main Drain (Open) from $8,856 to $2,558.92 and a reduction of the assessment of the “A” Drain from $2,188 to $437.60. They did not introduce any evidence that the runoff factor or the Land Use Factor should be reduced from 0.6 to 0.5. exhibit. They also did not challenge the Engineer’s opinion in cross-examination.
Closing Submissions
The Appellants
41The Appellants do not feel they will receive any benefit from the proposed drainage work. They also do not believe that the land value will increase due to the drainage work. Accordingly, they asked that the $1,000 Benefit for the Main Drain (Open) assessed under section 22 be reduced to zero.
42The Appellants did acknowledge that they do have to contribute to the cost of the drainage works. They argue that the amount should be reduced significantly. The basis for the reduction is founded on a Land Use Factor also referred to as a runoff factor being reduced from 0.6 to 0.5. The basis for this argument was that their land is designated as a PSW. Mrs. Machan stated during closing argument that a Land Use Factor of 0.5 is closer to the industry standard rather than 0.6. No expert evidence was introduced to confirm same. She stated that Mr. Nancekivill gave her information in this regard. The statement was not given during her testimony but rather during closing submissions. This is not admissible and even had she attempted to introduce same during her testimony, it is not only hearsay evidence but also unqualified professional or opinion evidence. This type of evidence needs to be introduced by a qualified expert who has delivered a report in advance of the hearing together with a Curriculum Vitae. At the hearing the professional has to be qualified and the Tribunal has to accept the witness as an expert in their field of study. This did not occur.
The Engineer
43The Engineer stated that the assessments had been calculated fairly and that the 0.6 runoff factor for land comparable to the appellants land has been used on many drains and for years by his firm. He noted there was only one appellant landowner for this project, namely Mr. & Mrs. Machan, and the cost to that appellant was approximately 1.5% of the total cost of the project.
44The Engineer confirmed that in light of increasing construction costs that the proposed work had been tendered but could not be awarded until the appeals have been resolved. Further, the Appellants had no assessment on the Main Drain (Closed) portion of the proposed work and that the content of the draft Engineer's report was irrelevant to the appeal.
Analysis and Findings
45The Tribunal finds that both the Appellants and the Engineer represented themselves on this matter and gave honest and respectful evidence and dealt with the Tribunal and the opposing party in a cordial manner.
46The Tribunal confirms that this appeal relates to the appeal of assessments under Section 54 of the Act and note that there was no objection to the proposed work as presented in the Engineer's Report during the hearing.
47Issue #1: The Outlet Liability calculation was elevated due to the application of a Land Use Factor of 0.6 when a Land Use Factor of 0.5 was more appropriate.
The municipality’s engineer, Mr. Dietrich, gave his professional and technical opinion that a LUF of 0.6 was applicable under the circumstances based upon his many years of experience. The Appellants did not introduce any admissible evidence to support their argument that a runoff factor of 0.5 was more applicable to their property. They did not submit any engineering reports nor did they call an engineer or other professional evidence to challenge Mr. Dietrich’s evidence. The Appellants did not challenge any other assumption for the Outlet Liability calculations.
Based on the submissions, the Tribunal finds the methodology for calculating the outlet liability assessments reasonable and the only basis for a reduction would be consideration to reduce the runoff factor as requested by the Appellants. It is noted that no technical evidence was provided in regard to the requested runoff factor reduction.
This ground of appeal is dismissed.
48Issue #2: The Outlet Liability was excessive as the municipality assessed a portion of the same lands for both the Main Drain (Open) and the “A” Drain calculations.
This ground of appeal is rooted in a misunderstanding by the Appellants at the outset of the hearing. They appeared to have understood that there was a doubling of the cost since the entirety of their property, namely 22.7 hectares was assessed for the Main Drain (Open) and 3.6 hectares was assessed for the “A” Drain. Mr. Machan admitted under cross-examination that 100% of the outlet fed into the Main Drain (Open) and that a portion of their property, namely 3.6 hectares also fed into the “A” Drain. The apportionment is related to the cost of the drain.
This ground of appeal is dismissed.
49Issue #3: The January 2021 Draft Report had an assessment of $9,340 for the Main Drain (closed) in error and this was not adjusted in the Final Report for Distribution at Exhibit #3.
The Appellants’ property is not tiled and has no outflow for the Main Drain (Closed). The municipality did not know this at the time that the Draft report (Exhibit #5) was prepared and delivered. Once the municipality understood that there was no benefit to Appellants’ lands then it modified the Report and the Appellants received no assessment for the cost of this drainage work. This is evident in that Exhibit #5 indicated a cost of $9,340. Exhibits #3 and Exhibit #4 both confirm that the Appellants were not assessed for the construction of the Main Drain (Closed).
The Appellants did not identify any ground to support a reduction of their assessment for the Main Drain (Open) or the “A” Drain due to their lands not being tiled.
This ground of appeal is hereby dismissed.
50Issue #4: The municipality wrongfully assessed a Benefit assessment under section 22 of the Act of $1,000.
The Appellants’ uncontradicted evidence is that their property is PSW. It is currently, and will very likely remain, a woodlot and never likely be developed for agricultural purposes. The Appellants’ evidence that their driveway acted as a berm was not challenged by the municipality. Section 22 of the Act provides as follows:
Assessment for benefit
22 Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit. R.S.O. 1990, c. D.17, s. 22.
The panel accepts the Appellants’ evidence and finds that the Appellants’ lands, roads, buildings, utilities or other structures have not increased in value or are more easily maintained as a result of the proposed drainage works and reduces the assessment by $1,000.
The deliberation by the Tribunal relative to the benefit assessment on the Appellants land is difficult. Since there is no physical work on the open ditch adjacent to or immediately downstream of the Appellants land it may follow that the Appellants land may not benefit from the proposed work. Conversely, the presence of the open ditch and whatever impact that may have on groundwater levels and the ability to discharge surface water through the driveway berm and the clearing of the maintenance corridor downstream of the 14th Concession may be considered a benefit. It is observed that the $1,000 benefit assessment as set out in the Assessment schedule for construction is less than 1% of the total benefit assessment for the Main Drain (Open).
We also accept the municipality’s evidence that the cost of construction may increase dramatically as no contract has yet been awarded and construction costs may increase dramatically. This project is now time-sensitive and that in the overall cost of the project the $1,000 adjustment represents only 0.14% of the overall project. Accordingly, we find that the $1,000 will be added to the municipal assessment.
51The Tribunal does not find the motive and conduct of the appeal by Gerald and Jill Machan appropriate for an order for costs against them.
Orders of the Tribunal
52The benefit assessment of $1,000 on the Appellants land be reduced to zero and the benefit assess be charged to the Town of Minto on the 14th Concession.
53The balance of the relief sought by the Appellants is hereby dismissed.
54The non-administrative costs of the municipality incurred with respect to this appeal, including the motion prior hereto, shall form part of the cost of the drainage works
55There shall be no other Order as to costs and all parties are responsible for their own costs.
Released: June 2, 2022