Kenneth Foster v. The Township of Howick, 2022 ONAFRAAT 4

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e étage NW

Guelph, Ontario N1G 4Y2 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:

Kenneth Foster vs The Township of Howick

[AMENDED FINAL DECISION]

Noah Martin Drain [AMENDED Final Decision]

STATUTE:

Drainage Act

HEARING:

December 20, 2021

DATE OF DECISION: DATE OF AMENDED DECISION:

February 02, 2022 March 01, 2022

005NoahMartin21

NEUTRAL CITATION: AMENDED NEUTRAL CITATION:

2022 ONAFRAAT 04 2022 ONAFRAAT 12

FILE NO.: 005NoahMartin21

DATE: 2022/03/01

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 Kenneth Foster of Fordwich, Ontario under Section 48 of the Drainage Act, with respect to the Noah Martin Municipal Drain in the Township of Howick.

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

BETWEEN:

Kenneth Foster Appellant

– and –

The Township of Howick Respondent

Represented by Jennifer Foster

Represented by Paul Courey

HEARD: December 20, 2021

Before: Christine Greydanus, Vice-Chair; Tricia Schouten, Vice-Chair; and John Johnston, Vice-Chair.

Appearances:

Kenneth Foster, Appellant

Jennifer Foster, representative and witness for the appellant

Paul Courey, Counsel for the Township of Howick

Jeff Dickson, P. Eng., Engineer who wrote the Report

Noah Martin, affected landowner

Amended DECISION OF THE TRIBUNAL

1This appeal was heard December 20, 2021 by way of Zoom virtual meeting.

2Prior to the hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Engineer’s Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing.

Background

3The Noah Martin Municipal Drain (“Proposed Drain”) was initiated when Noah Martin of Lot 30 and part of Lot 29, Concession 7 of Howick Township petitioned the municipality for drainage works pursuant to Section 4 of the Drainage Act (“the Act”). The petition dated August 13, 2014, was endorsed by the owners of part Lot 29 and Lot 30, Concession 7 (N. & D. Martin); the owner of part Lot 29, Concession 7 (A. Martin); the owners of Lot 28, Concession 7 (L. & M. Frey); the owner of Lot 29 and Lot 30 Concession 8 (T. Bunker); and the owner of Lot 28, Concession 8 (H. & J. Douglas).

4Pursuant to Section 8 of the Act, the Township of Howick appointed R.J. Burnside & Associates Limited on October 27, 2014 to investigate drainage issues on the properties of the petitioning landowners. The Engineer’s Report dated December 18, 2020, (“the Engineer’s Report”) was prepared pursuant to Section 4 of the Act by Caitlin Fergusson, P. Eng. and by J.R. (Jeff) Dickson, P. Eng.

5The Proposed Drain as designed in the Engineer’s Report is intended to alleviate the ponding of water, to provide a subsurface drainage outlet and to improve the quality of the drainage for a majority of the properties in the watershed.

Issues

The Appellant asserted the following positions:

1. That he was denied procedural fairness by the Respondent.

2. That the section of the Proposed Drain that crosses the Appellant’s property be relocated.

3. That, if the drain is not relocated, there be a provision in the Engineer’s Report that explicitly allows for future underdrainage of the Appellant’s property at Lot 30, Concession 6, Township of Howick to be connected to the Proposed Drain.

4. That the funds that they will receive (allowances) under sections 29 and 30 of the Act are too low.

Evidence

Jennifer Foster

6Jennifer Foster testified on behalf of the Appellant, her father-in-law, Kenneth Foster.

7Ms. Foster testified that the Fosters were involved with, and kept apprised of, all matters pertaining to the Proposed Drain project from the initiation of the project in 2014, up until February 14, 2018. Ms. Foster stated that throughout this time period, the Fosters made it clear that they did not want or need the drain on the Foster property. Further, the Fosters asserted that during this time period it was always the Fosters’ understanding that the preferred route for the Proposed Drain was through Lot 29, Concession 6 (as illustrated in the Engineer’s Report at Tab G, on the map marked “Preliminary”). Ms. Foster stated that the preferred route through Lot 29, Concession 6 was routinely confirmed by R. J. Burnside during on-site meetings and meetings at the Howick Township municipal office.

8Ms. Foster stated that at an information meeting on February 14, 2018, held at the Howick Township municipal office, Jeff Dickson of R. J. Burnside confirmed that the Proposed Drain would not be going through the Foster property and that the preferred route through Lot 29, Concession 6 would be recommended. Further, Ms. Foster stated that Mr. Dickson advised the Fosters at this meeting that their property would not be assessed for the Proposed Drain, as it would not be impacted by the Proposed Drain.

9Ms. Foster testified that following the information meeting held on February 14, 2018, the Fosters did not receive notice of any future meetings for affected landowners and therefore did not attend any of the meetings. Ms. Foster asserted that the Fosters were never consulted about the possibility of the Proposed Drain going through the Foster property and were never given the opportunity to raise concerns about any drain potentially going through the Foster property.

10Ms. Foster testified that it was not until September 25, 2020, that the Fosters were first notified that the Noah Martin Municipal Drain would potentially go through the Foster property and that at some time between February 14, 2018, and September 25, 2020, R. J. Burnside and / or the Township of Howick decided to explore this option without the Fosters being included in the consultation process.

11Ms. Foster asserted that the Fosters were denied the opportunity to voice their preferences for a drain route and to air their concerns throughout the whole of the consultation process between 2018 and 2020, thereby being denied procedural fairness.

12Ms. Foster stated that at the February 16, 2021 Meeting to Consider, the Fosters raised their concerns about barnyard runoff entering the drain through the observation box; the proximity of the Proposed Drain to outbuildings and the possible conflict in the future for new outbuildings; that the distance from existing buildings to the drain was not measured; and that the Proposed Drain will not allow the Fosters to connect any tile from the Foster Property into the Noah Martin Drain, therefore necessitating them to have to install two header drains to allow them to drain their property. Ms. Foster testified that the Fosters have plans to systematically drain their land in the future.

13Ms. Foster submitted that the Appellant has further concerns about the proposed Martin Drain as follows;

1. The Proposed Drain will run through several pastures necessitating the Appellant to construct temporary fences and purchase feed for their cattle. Some pastures are rented and the construction will reduce the area of pasture available to be rented out.

2. The proposed observation box to be located in close proximity to the Appellant ‘s barnyard will interfere with future plans to convert the pastures to crop land.

3. There will be additional erosion at the back of the Appellant’s property where the Proposed Drain outlets into the Leonard Municipal Drain due to increased flow from the Proposed Drain.

14Ms. Foster submitted that the proposal is not the most efficient or the least expensive option for drainage to the area and that the proposal brings water from outside the watershed through the Foster property.

15The Appellant is seeking an Order that the drainage works revert back to the proposed route through Lot 29 Concession 6, as detailed in Memorandum No.1 dated January 7, 2019 (the Preferred route) or in the alternative an Order that the proposed drainage works be relocated to the west edge of the Foster Property abutting Lot 29, Concession 6.

16On cross-examination, Ms. Foster stated that in August of 2019, Mr. Wray Wilson contacted the Appellant to advise him that the survey crew would be coming to his property to do a couple more surveys to obtain additional information. At that time, access to the property was granted. Ms. Foster stated that the Appellant did not ask the reason behind the additional collection of information due to the fact that on that day the Fosters were dealing with extenuating family emergencies and were not in the mindset to ask questions.

17Ms. Foster, under cross examination, stated that there are seven fences, not three, that the Proposed Drain will be crossing.

J. R. (Jeff) Dickson, P. Eng., R. J. Burnside & Associates Limited, Township of Howick

18Mr. Dickson testified on behalf of the Township and presented the Drainage Report.

19Mr. Dickson testified that Burnside was appointed under Section 4 of the Act on October 27, 2014 to prepare a report for a potential new drainage system to serve an “area requiring drainage” on parts of Lots 28, 29, and 30 Con 7, Township of Howick.

20The prescribed On-Site meeting was held February 5, 2015. The Petition was deemed valid on the basis that the majority in number of the owners in the area requiring drainage had signed it in accordance with Section 4 (1)(a). A subsequent topographical survey of the two different routes for a possible drainage system was completed in 2015 and 2016. During 2016, using the topographical data, relevant preparatory plan and profile drawings were created, as well as a design for each route.

21Mr. Dickson noted that in early 2017, after Notices were sent for Information Meeting No. 1, two options were presented for a preliminary design. One option was for a drainage system commencing at an outlet into the Leonard Drain in Lot 29, Con 6, extending to the north through Lot 29, across and under Gough Road, through the south part of Lot 29, Con 7, and then into and through Lot 28, Con 7 to the line between Con 7 & 8. The result of the Information Meeting No. 1 was to make some changes to the preliminary design, including changing the design drainage coefficient and the extent of the drainage system presented.

22The design drainage coefficient was changed as requested by land owners and modifications were made to the extent of the possible drainage system presented at Meeting No. 1. Notices were sent for Information Meeting No. 2 in early 2018. At Meeting No. 2, a revised design was posed for a possible drainage system commencing with an open portion on Lot 29, Concession 6, a closed portion extending from it to the north and under Gough Road, then into Lot 29, Concession 7, ending at the line between Lots 29 & 28, Concession 7. An “optional” upstream extension through Lot 28, Concession 7 to the line between Concession 7 & 8 was also proposed.

23Another request, following Meeting No. 2, was made by the affected landowner for the enclosure of the existing channel on Lot 29, Concession 6. A site visit was arranged in April 2018 to observe the aquatic habitat of the existing channel. An Aquatic Habitat Assessment was subsequently authored. It was determined that if the existing channel was to be part of the possible drainage system, it would remain open and would not be enclosed.

24After more investigations, design and engineering, Memorandum No. 1 was produced and sent to the stakeholders in early 2019 informing them that there would be no enclosure. Subsequently, and after further investigation and discussion with various affected landowners, it was decided to re-examine the alternate route through Lot 30, Concession 6 for the location of the possible drainage system to serve lands in Concession 7 & 8. After a topographic survey in mid-2019 to collect additional existing conditions data on Lot 30 Concession 6 to supplement that collected in 2015, a revised design was prepared and deemed an acceptable solution.

25Memorandum No. 2 was then produced and sent to the landowners dated September 25, 2020; it included a Watershed Plan, a Profile, and (preliminary) Assessments (and net assessments – less grant & allowances). Landowners were informed that they were to review the information in the Memorandum and accompanying documents, and were respectfully requested that if they had ‘any questions or concerns’ relating to the route through Lot 30, Concession 6, they were to contact Burnside staff before the final engineer’s report was finalized and filed for a drainage system as described in the Memorandum and depicted in and on its accompanying documents.

26The final Engineer’s Report was filed via email on December 18, 2020, and hard copies were delivered January 6, 2021; the Section 42 Meeting to Consider was eventually held February 16, 2021; and the Court of Revision was held on March 16, 2021.

27The Proposed Drain is to be constructed starting at its outlet into the Leonard Municipal Drain in the south part of Lot 30, Concession 6, to continue north to and under Gough Road, and to progress north and west through Lot 29, Concession 7 to the line between Lots 28 and 29.

28On cross examination, Mr. Dickson testified that the observation box is used by the drainage superintendent to observe the flow in the drain. It extends about twelve inches above ground, is covered with a grate and is marked with a suitable post and allows landowners to check on any future private tile that they have connected to the connection port of the observation box. Mr. Dickson stated that the distance of the observation box from the Foster barn had not been measured, so it was not available at the time Mr. Foster asked for it. Mr. Dickson offered that it could be measured and provided to Mr. Foster.

29Mr. Dickson noted that the drain going through the Foster property is in a low run where surface water already runs, thereby doubting the location’s suitability for a future building site.

30Mr. Dickson testified that in is his view, the route of the Proposed Drain in the Engineer’s Report through the Foster property is the better of the options.

31Mr. Dickson testified that Mr. Foster’s proposal to run the drain along the property line between Lot 29 and 30 of Concession 6 would, in his opinion, be excessively deep based on the contours being at least 3 meters deeper than the proposed route in the Engineer’s Report. Locating the drain on the west of the Foster property would, due to the depth of bury, increase the cost of installation of the tile owing to the following factors: the increased amount of material to be excavated and then replaced; the need for a higher strength tile to carry the greater load; the need for a larger working space thus increasing the damages and increasing the cost of Allowances for both damages and right of way.

32Mr. Dickson confirmed that the primary considerations in differentiating between the options for the route of the Noah Martin Drain (crossing the Newell property at Lot 29 Concession 6, or the Foster property at Lot 30 Concession 6) were the aquatic assessment determining there was aquatic habitat that would be lost if there was an enclosure on Lot 29, the proximity to the septic system on Lot 29, and the fact that the entirety of Lot 29 was systematically tile drained which would have resulted in a municipal drain having to be wound between existing drain tile that is spaced 40 feet apart from centre of tile to centre of tile.

33Mr. Dickson confirmed, under questioning, that all the land in the area of the proposed Noah Martin Municipal Drain is currently assessed into the Leonard Drain and that all the water from the Noah Martin watershed, to the degree it can, currently makes its way into the Leonard Drain.

34Mr. Dickson confirmed that the Engineer’s Report does not give Mr. Foster or the future owner of Lot 30, Concession 6, the right of an underdrainage connection to the Noah Martin Municipal Drain in the event that it is desired. Mr. Dickson testified it was never intended that Lot 30 Concession 6 could not connect to the drain, but it was indicated that Lot 30, the portion to the north of the observation box at Station 341, had not been designed with capacity for that part of the property, however, if the owner wished to connect in the future, that connection could be made in accordance with Section 65 of the Act. The Engineer stated that in his opinion there is capacity in the Noah Martin Drain for the underdrainage of the lands south of Gough Road. The Engineer stated that the underdrainage waters south of Gough Road would be through the system before the water from the connections to the north of the system, would fill it close to its capacity.

35On questioning, Mr. Dickson stated that frequently landowners will request a connection to a drain after it has been installed due to them changing their minds or deciding to underdrain a section of their property. Mr. Dickson stated that if the Appellant came to him in the future he would allow for a connection to the Proposed Drain for underdrainage of his land and that the intent was always to allow for that to happen. Mr. Dickson testified that it would be an excellent idea to alter the Report at 9.3.1 Lot 30, Concession 6 (Roll No 6-34) to provide wording that would clearly state that there is capacity in the Proposed Drain for an underdrainage connection of Lot 30 Concession 6.

Findings and Analysis

36The Tribunal notes that whether or not a duty of procedural fairness arises when the Engineer is preparing the report was not fully argued by the parties, but rather the Appellant asserted a lack of consultation as a violation of a presumed duty of procedural fairness whereas the Respondent asserted that the Act’s processes, including consultation with the Appellant, were followed. Questions as to whether the report conforms with the Act are questions for the Referee under Section 47 and addressable via the Referee’s Section 106 powers.

37Nonetheless, the Tribunal notes that the process and steps as prescribed by the Act for a Section 4 petition drain were followed including: the landowners requiring drainage submitting a petition to the Municipality (August 13, 2014), the Municipality accepting the petition for drainage; the Municipal Council appointing an engineer to consider the petition; the holding of on-site meetings, field meetings, and information meetings; the production of an Engineer’s Report that includes the design of the proposed drainage works; the holding of the Meeting to Consider and the Court of Revision.

38The Tribunal notes that the Appellant was engaged in the process as early as the on-site meeting held February 5, 2015, when he advised that he did not want the drain; and that the Appellant attended Information Meeting No. 1 on April 1, 2017 and Information Meeting No. 2 on February 14, 2018. The proposed route of the drain at the time of Information Meeting No. 2 did not include the Foster property. There were no further formal meetings held between February 14, 2018 and September 25, 2020.

39The Tribunal notes that the Appellant was not engaged in the process between February 14, 2018 and September 25, 2020. The Appellant did not present his objection to the new route of the proposed drain until the Meeting to Consider on February 16, 2020. Mr. Foster could have reengaged in the process immediately, or soon thereafter, the Memorandum No. 2 dated September 25, 2020 was received and prior to the Engineers filing their Report with the Municipality on December 18, 2020. Memorandum No. 2 requested stakeholders to review the information contained within and to contact the Engineer should they have any concerns. Mr. Foster did not contact the Engineer between September 25, 2020 and December 18, 2020.

40While Mr. Foster was initially led to believe that the Proposed Drain would not cross his property, he was notified of the change and provided an opportunity to comment. The Act’s processes were seemingly followed, with opportunities for input provided to owners, including the Appellant, throughout. The Appellant had almost three months to raise concerns with the Engineer about the route.

41The Tribunal finds that Allowances have been made in the Engineer’s Report to compensate the Appellant for damages to fences, loss of crop and pastures, for Right of Way, pursuant to s. 29 of the Act, in the amount of $10,790 and of Damages, pursuant to s. 30 of the Act, in the amount of $4,510. The Tribunal finds that the Proposed Drain will cross seven fences on the Appellant’s property. The Tribunal finds that the Section 30 Damages Allowance compensates for the crossing of three fences and that the Appellant should be compensated for seven fences, thereby, increasing the Section 30 Allowance by $1000 to a total of $5,510.

42The Tribunal accepts that the proposed Noah Martin Municipal Drain was designed by a qualified drainage engineer and that the Appellant did not provide any expert evidence to support their assertion that the drainage design is not the most efficient or cost-effective proposal. The Tribunal finds that the drain through the Appellants property is in a low run, a likely unsuitable location for future buildings. The Tribunal finds that the observation box on the Appellant’s property will extend at least 12 inches above the ground and will be marked with a suitable post. The Tribunal finds that the location of the proposed observation box has not been disclosed to the Appellant even though he has asked for the location.

43The Tribunal finds that there is capacity in the Proposed Drain to accommodate the underdrainage of the Appellant’s property at Lot 30 Concession 6 in the Township of Howick. The Tribunal finds that the Proposed Drain was always intended to accommodate the underdrainage water from Lot 30 Concession 6. The Tribunal finds that the Drainage Report should be revised to reflect this intent so that the Appellant or the future owner of Lot 30, Concession 6 is not barred from having a connection for underdrainage into the Proposed Drain in the future, and that paragraph 9.3.1 at page 29 of the Engineer’s report dated December 18, 2020 shall read;

“The Noah Martin Municipal Drain has been designed with sufficient capacity to accept tile drainage from all land within the drain’s watershed up to the drainage design coefficient of 38.1mm (1.5 inches).”

44The Tribunal finds nothing frivolous, vexations or malicious about Mr. Foster’s appeal.

ORDER

45The Tribunal therefore orders that the following revisions be made to the Engineer’s Report;

1. The Engineer shall revise the report at page 29, Section 9.3.1 by replacing the wording with the following;

“The Noah Martin Municipal Drain has been designed with sufficient capacity to accept tile drainage from all land within the drain’s watershed up to the drainage design coefficient of 38.1mm (1.5 inches).”

The revised report shall have the same date as this decision.

2. The Engineer shall revise the report increasing the Section 30 allowances for the Appellant, Kenneth Foster’s property at Lot 30 Concession 6 in the Township of Howick by $1,000 to $5,510.

3. The Engineer shall revise the report providing the location of the proposed observation box on Lot 30, Concession 6.

4. The Engineer shall revise the report dividing the $1000 increase in Section 30 Allowances to Lot 30, Concession 6, on the basis of outlet liability, and assess proportionally on all the properties upstream of Lot 30, Concession 6 in the Township of Howick.

5. Once the revised Report has been completed, the Tribunal directs that the revised report be circulated to all assessed owners on the proposed Noah Martin Municipal Drain. The revised Report shall not be brought before Council or the Court of Revision. The Amended by-law shall reference the revised report.

6. All the above revisions to the Report shall be made with no additional fees being payable to the Engineer.

7. The Appellant’s appeal is otherwise dismissed.

8. There shall be no order as to costs and all parties are responsible for their own costs.

Amended version released: March 1, 2022