Timothy and Wanda Toms v. St. Clair Township, 2023 ONAFRAAT 1

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

2023 ONAFRAAT 01

FILE NO.: 008McGee22

DATE: 2023/02/15

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 (the “Tribunal”) by Timothy Toms, under section 54 of the Drainage Act, and from Kenneth Van Dellen, under section 48 of the Drainage Act, with respect to the McGee Drain, located in St. Clair Township.

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

BETWEEN:

Timothy and Wanda Toms Kenneth Van Dellen Appellants

– and –

St. Clair Township Respondent

Self-Represented Self-Represented

HEARD: January 17, 2023 via Zoom

Before: Robert Fuller, Vice-Chair, John Johnson, Vice-Chair, and David Stevens, Member

Appearances:

Timothy Toms, Appellant

Wanda Toms, Appellant

Kenneth Van Dellen, Appellant

Josh Warner, P. Eng., Engineer who wrote the Report

Jeff Baranek, Clerk

DECISION OF THE TRIBUNAL

PRELIMINARY MATTERS

1Prior to the beginning of this hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report, parties to the appeal. The Municipality filed an Affidavit of Service as proof that all parties had been served with the Notice of the Hearing. This affidavit became Exhibit 1 at the appeal.

BACKGROUND

2A drainage report of the McGee Drain was initiated by a request of an affected Landowner at a meeting of Council for St. Clair Township on September 28, 2020 under Section 78 of the Drainage Act (the “Act”). R Dobbin Engineering Inc. was retained by the Township to perform an examination with regards to improving the McGee Drain resulting in an Engineer’s Report prepared on March 8, 2022. Section 78 states that where it is expedient to change or modify the drainage works, Council may on the report of an Engineer appointed by it undertake and complete the drainage works as set forth in such report.

3The McGee Drain was last improved under an Engineer’s Report dated April 27, 1946.

4The McGee Drain currently outlets into the McLellan Drain at the south limit of Lot 21, Concession 5. It continues northerly as an open channel to the north limit of Lot 21, Concession 5, on the south side of Charlemont Line. From the center of Lot 21, Concession 5 the McGee Drain, under the current by-law, heads east as a combination tile drain and open channel to the east side of Lot 23, Concession 5. Since the last report on the McGee Drain, the Lane Drain has cut off the McGee Drain at the center of Lot 21, Concession 5 and heads west. The McGee Drain that ran along the center of Concession 5 is now named the Lane Drain. The culverts on the McGee drain are too small, set to high and have deteriorated to the point where replacement is necessary. At the on-site meeting on July 6, 2021, an examination of the area in question was made by the Township and the Engineer, including the lawn piping and nearby septic systems. At the onsite meeting to discuss the proposed works, the following items were discussed with the landowners:

A) Landowners were made aware that the McGee Drain (1946) will be abandoned north and east of where the Lane Drain cut it off at the center of Lot 21, Concession 5. Landowners were made aware that many of the existing culverts on the McGee Drain have been replaced privately and are not of sufficient size. Therefore, all the culverts along the length of the drainage works will be investigated for replacement. It is also proposed to have the open channel be improved under this report. It was explained that culvert lengths, will be based on providing the following travel widths:

o Severed rural residential property (non-farm)=6.1m (20’)

o Farm property =7.3m (24’)

B) Landowners were made aware that if they request a length of culvert longer than specified above, the additional cost would be assessed to the requesting Landowner’s property. If a Landowner requested more than one culvert, the entire culvert cost would be assessed to the requesting Landowner’s property and not be grantable based on the current Agricultural Drainage Infrastructure Program (ADIP) administrative policy.

C) The Landowner of the property with Roll Number 30-009 requested that the lawn portion in front of his property be enclosed. He requested that he have two culverts in addition to this, each having a minimum top width of 80 ft (24m). It was discussed that the drain would be dug to provide a 40 ft (12m) access at the north limit of the property (top end of the drain) for the property with Roll Number 30-009.

5The Report of the Engineer dated March 8, 2022 (the “Engineer’s Report”) proposes the removal of Culvert No. 1, the complete replacement of Culvert No. 2 and No. 3 and the installation of Culvert No. 4 to serve as a lawn enclosure and a replacement of Culvert No. 2 and No. 3. The Engineer’s Report also proposes the improvement of the open channel along its length and the termination of the channel to provide an 18m access width between the top of the bank of the McGee Drain and the Lane Drain. Finally, the report proposes the abandonment of the McGee Drain to the north and east of Station 0+659.

6The Engineer’s Report was adopted by St. Clair Township Drainage Committee on July 6, 2022.

7The sitting of the Court of Revision took place on September 12, 2022, at which time an appeal to the Court by Timothy and Wanda Toms was heard. Mr. Toms advised that he could not afford any assessment for repairs he deemed unnecessary. Mr. Van Dellen was not an appellant but addressed the Court and advised he was in favour of the Engineer’s Report. The Court confirmed the Engineer’s Report and approved a reduction in the assessment of the property of Mr. and Mrs. Toms by one third and added same to the assessment for Pretty Road.

8Mr. Kenneth Van Dellen submitted an appeal to the Tribunal under section 48(1) of the Act stating that the culvert is undersized, cracked and rusted and the determination that it needs replacement is due to natural disintegration and not on his property so that he should not be responsible for the cost of replacement.

9After an appeal to the Court of Revision, Mr. and Mrs. Toms submitted an appeal to the Tribunal in accordance with Section 54(1) of the Act on the basis that they were unable to pay for the proposed works and that the reason for the drainage works was caused by Mr. Van Dellen.

ISSUES

10The issues to be determined by the Tribunal are as follows:

(a) Should the drainage works as set out in the Engineer’s Report be modified or altered?

(b) Should the assessment of Mr. and Mrs. Toms be reduced?

EVIDENCE

11Mr. Warner gave an overview of the project, including authorization and onsite meetings and summarized the work that is proposed to be done on the existing culverts, including replacement as set forth in the Background above.

Mr. Kenneth Van Dellen – s. 48 Appeal

12Mr. Van Dellen stated that the first assessment of the drain was acceptable but his ability to pay was no longer possible due to drought conditions. He wished the culvert size to be reduced by 60 ft and leave an open drain in a portion of the drainage area to reduce cost. Mr. Van Dellen did not call any evidence. During questioning by the Tribunal, Mr. Van Dellen clarified that his request was to reduce the depth and length of the culvert on his property to obtain an equivalent reduction in the drainage assessment of his property.

Mr. Josh Warner, P.Eng. – Section 48 Appeal

13Mr. Warner presented the Tribunal with an agreement between the Township and the Appellant Mr. Van Dellen dated November 24, 2022 resolving the issues of Mr. Van Dellen’s appeal. The parties agreed to changes to the Engineer’s Report which shortened Culvert No. 2 and No. 4, resulting in the replacement of Culvert No. 2, No. 3 and No. 4 in their entirety and added future provisions for a new culvert No. 5 for Mr. Van Dellen. This resulted in a revised cost estimate of the work being $94,037.00 which has been assessed to the properties. Mr. Van Dellen’s property will be responsible for the future cost of Culvert No. 5. Mr. Warner explained all associated costs and the schedule of assessment. The only changes to assessments were those associated with Mr. Van Dellen’s property with all other assessments remaining the same.

14Mr. Warner asked the Tribunal to adopt the revised Engineer’s Report submitted to the Tribunal.

15The Appellants Mr. and Mrs. Toms raised the issue of decreasing the depth of the drain resulting in failure to remove contaminants from the drainage system by their well. Mr. Warner advised that this issue was not considered in the issuance of the revised report. Mr. Warner advised that there would be no significant change to the water that would be stored by the Appellants well after the drainage works were completed and that these well issues were outside the scope of the project. Mr. Warner advised the 8m access at the top of the drain will remain.

Mr. Josh Warner, P.Eng. – Section 54 Appeal

16Mr. Warner provided a breakdown of the property assessment for the proposed drainage works which utilized the modified Todgham method and typical percentages for the area, save and except for the property access for Mr. Van Dellen’s property which was assessed 100% to Mr. Van Dellen’s property. Mr. Warner provided a detailed explanation of the proposed drainage works.

17Mr. Warner’s report requires the replacement of Culverts No. 2 and 3 and he explained the benefit and assessment against Mr. and Mrs. Toms for same and the downstream channel work, including the proposed access culvert to accommodate upstream waters and satisfy the requirements of the Department of Fisheries and Oceans (“DFO”) and the local Conservation Authority.

18Mr. Warner advised the Tribunal of the revised assessment schedule resulting from the Court of Revision reducing the assessment of Mr. and Mrs. Toms by one-third and amending the assessment of Mr. Van Dellen’s property. Mr. Warner advised that he could not factor in affordability due to his duty of impartiality nor could he factor in external historical factors resulting in the present state of the drain as part of his report.

19The Appellants Mr. and Mrs. Toms inquired as to why they should be assessed for the drainage works, since their position was that the cause of the drainage work was the actions of Mr. Van Dellen installing culverts and tying in his septic tank. Mr. Warner advised that replacement was required because the culvert was too high and the reasons for the required work does not factor into the assessments. Mr. Toms submitted that the excavation of the ditch by Mr. Van Dellen or his appointees was the reason that the existing culvert was too high, and Mr. Warner was aware of this but advised that the culvert was installed too high originally due to the grade lines. Mr. Toms asked if the ditch could be cleaned out properly, but Mr. Warner took the position that this was not under consideration as the appeal of Mr. Toms was to deal with the assessments only.

20The Appellant Mrs. Toms asked for clarification as to why the contaminants would be left if the DFO and Conservation authority required satisfaction. Mr. Warner advised that the Culvert replacement was what was required by those authorities.

Mr. and Mrs. Toms – Section 54 Appeal

21Mr. Toms submitted that all the problems with the system were the result of Mr. Van Dellen and the black water he caused to enter the drainage system. Mr. Toms felt that as he didn’t cause the problems and he should not be paying for it. He understood the costs of the upgrade and agreed that one access from his property should be his responsibility but feels he should not pay for the whole drain or another person’s negligence and did not have the financial ability to do so.

22Mr. Toms submitted evidence of the black water and ditch dug by Mr. Van Dellen without permission, which he asserted led to the requested the clean out and the proposed drainage works.

ANALYSIS AND FINDINGS

Section 48 Appeal of Mr. Kenneth Van Dellen

23The Tribunal accepts as fact that Culvert No.1 needed removal and Culvert No. 2 and No. 3 need replacement as set forth in the Engineer’s Report. The Tribunal also finds that Culvert No. 4 needs installation as set forth in the Engineer’s report. The Tribunal further finds that the shortened length as set forth in the proposed revised Engineer’s Report dated November 23, 2022, is appropriate in the circumstances.

24The Tribunal notes the concerns of the Appellants, Mr. and Ms. Toms, regarding the present and future contaminants however this issue is outside the scope of the project and does not directly affect the original or revised Engineer’s Reports, particularly without Engineering evidence to the contrary.

25The Tribunal notes the Agreement of the Appellant Mr. Van Dellen and the Respondent Township dated November 24, 2022, agreeing to the revised Engineer’s Report of November 23, 2022, and the agreement of the Appellant Mr. Van Dellen to the withdrawal of his appeal.

Section 54 Appeal of Mr. and Mrs. Toms

26Based on the evidence and analysis of Mr. Warner, the Tribunal finds the assessments set forth in the Engineer’s report fair and reasonable as per the Act.

27Although the Appellants Mr. and Mrs. Toms introduced evidence reading the impetus and reasons for the drainage work and the resultant impact, they did not provide the type of evidence that would support a variation of their assessment beyond that set out in the revised Engineer’s Report of November 23, 2022, and the decision of the Court of Revision of September 12, 2022.

ORDER

The Tribunal orders that:

28The Engineer Report of R. Dobbin Engineering Inc. dated November 23, 2022 be adopted in full and the McGee Drain drainage work proceed in accordance with such Report.

29The requirement for the Township to recirculate the Engineering Report of November 23, 2022 is hereby waived.

30The Appeal by Mr. Kenneth Van Dellen under Section 48 of the Drainage Act is dismissed.

31The Appeal by Mr. Timothy Toms and Mrs. Wanda Toms is dismissed.

32The non-administrative costs of the Township incurred with respect of these appeals shall form part of the costs of the drainage works.

33There shall be no other order as to costs and the parties are responsible for their own costs.