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 ONAFRAAT17
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 by Richard Jukosky of Fort Erie, Ontario, under Section 48(1) and 54(1) of the Drainage Act, with respect to the Frenchman’s Creek Municipal Drain in the Town of Fort Erie.
AND IN THE MATTER OF an electronic hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
Richard Jukosky Appellant
– and –
Town of Fort Erie Respondent
Self-Represented Self-Represented
HEARD: September 15, 2023
Before: Steve Moutsatsos, Vice-Chair; John Johnston, Vice-Chair; Sarah Judd, Member
Appearances:
Richard Jukosky, Appellant Carol Jukosky, Appellant’s spouse Margarete Taddeo, Records Management Assistant for the Town of Fort Erie Troy Davidson, Drainage Superintendent for the Town of Fort Erie Brandon Widner, Engineer with Spriet Engineering
DECISION OF THE TRIBUNAL
- The Tribunal held this hearing virtually on September 15, 2023. The Engineer’s Report dated October 25, 2022, for the Frenchman’s Creek Drain (the “Report”) was prepared by Brandon Widner, P. Eng. of Spriet Associates (the “Engineer”). Appeals were filed by Richard Jukosky under sections 48(1) and 54(1) of the Drainage Act, R.S.O. 1990, c. D.17 (the “Act”).
BACKGROUND
The Frenchman’s Creek Drain was originally constructed pursuant to a report submitted by C.J. Clarke, P. Eng., dated February 9, 1960, and consisted of improvement of the existing creek from Sunset Drive westerly to Concession 9, Lot 5 (the “1960 Report”).
Due to expansion of the Ridgemount Quarry, the drain was abandoned from the westerly limit of property Roll No. 28-113 upstream.
A subsequent report was submitted by J. Bryon Wiebe, P.Eng., dated August 31, 1999 (the “1999 Report”), and consisted of the cleanout of the drain from Sunset Drive upstream to the drain limit in Concession 8, Lot 5, for a total length of 2,602 lineal meters. Branch No. 1 was also cleaned out at this time, for a length of 234 lineal meters.
Richard Jukosky (the “Appellant”) owns land over which the Frenchman’s Creek Drain crosses on Lot 5, Concession 7 (the “Jukosky Lands”) that are downstream from the drain source at the western portion of Lot 5, Concession 8, on the lands owned by A+H Miller (the “Frenchman’s Creek Drain Inlet”).
Immediately to the west of the Frenchman’s Creek Drain Inlet is located a quarry operated by Walker Aggregates Inc. (the “Walker Quarry”). The Walker Quarry water is pumped into Frenchman’s Creek Drain.
ISSUES
Are the benefits derived from the drainage works described in the Report (the “Proposed Work”) required and commensurate with the estimated cost thereof? (“Section 48 Appeal”).
Do the allowances and assessments to the Appellant’s property appear to be fair and reasonable in light of the issues raised by the Appellant? (“Section 54 Appeal”).
EVIDENCE OF THE PARTIES
Mr. Widner, Engineer
Mr. Widner was appointed as the Engineer pursuant to provisions of Section 78 of the Act. He testified that the primary complaint triggering the Report was the clean out of the part of the Frenchman’s Creek Drain that crosses the Optimist Club lands, located at the eastern end of the Frenchman’s Creek Drain.
Mr. Widner advised that part of the Frenchman’s Creek Drain located on the Optimist Club lands was in poor condition. The existing channel downstream of Sunset Drive needed repairs with multiple fallen trees and debris in the channel. In addition, in many portions along the drain, sediment has accumulated and that the drain requires improvement (the “Proposed Works”).
Mr. Widner stated that as a result of these deficiencies in the drain, the Lu lands upstream of the Optimist Club lands experienced flooding.
Mr. Widner stated the Optimist Club is located in an area that is designated as a Provincially significant wetland and that all necessary permits from the relevant regulatory authorities had been secured to undertake the Proposed Works.
Mr. Widner stated that the Walker Quarry has a significant de-watering permit from the Ministry of Environment (“MOE”) that allows it to discharge water from the Walker Quarry facilities into the Frenchman’s Creek Drain and that Walker Quarry had a legal outlet to the drain.
Mr. Richard Jukosky
Mr. Jukosky testified that he has resided on his property for 49 years and knows the drainage patterns around Frenchman’s Creek Drain intimately.
Mr. Jukosky stated that the Township undertook no due diligence with regard to the cause of the flooding on the Lu Property and that the Proposed Drainage Works are not required.
Mr Jukosky stated that the sole cause of the flooding on the Lu property was the pumping by Walker’s Quarry of water into the drain in excess of what they are legally permitted to discharge.
Mr. Jukosky questioned the necessity of the Proposed Works and that they would disturb fish habitat and negatively impact a Provincially significant wetland.
Mr. Jukosky stated that he did not question the assessments provided in the Report and that he deferred to the engineer’s expertise in this matter.
FINDINGS AND ANAYLSIS
The Appellant did not question the relevant assessments provided in that Report and as a result there was no evidence from the Appellant to support the Section 54(1) Appeal.
In regards to the Section 48(1) appeal, the Tribunal agrees with the Respondent that the Proposed Works are required and commensurate with the estimated costs thereof.
Discharge from the Walker Quarry is legal under their de-watering permit and Walker Quarry has a right to a legal outlet downstream.
The part of the drain located on the Optimist Club lands requires improvement.
All necessary permits and approvals for the Proposed Works must be secured.
ORDER
- For the reasons stated above, the Tribunal orders as follows:
a. The appeal by Richard Jukosky under Section 54(1) of the Act is dismissed.
b. The appeal by Richard Jukosky under Section 48(1) of the Act is dismissed.
c. The non-administrative costs of the Municipally incurred with respect to this appeal shall form part of the cost of the drainage works.
d. There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Sudbury, this 26th day of October, 2023.
Steve Moutsatsos, Vice-Chair
Released: October 26, 2023
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