Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
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
2023 ONAFRAAT 02
I
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 (the “Tribunal”) by Van Miltenburg Farms Ltd., under Section 54 of the Drainage Act, with respect to the Geiger Drain located in the Municipality of Huron East.
AND IN THE MATTER OF an electronic hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
Van Miltenburg Farms Ltd. Appellant
– and –
The Municipality of Huron East Respondent
Self-Represented
Represented by G. Edward Oldfield
Heard: September 13th, 2022, September 14th, 2022, and December 14, 2022
Before:
Brandi Neil, Vice-Chair; Don McNalty, Vice-Chair; and Dave Stevens, Member
Appearances:
John Van Miltenburg, Appellant
G. Edward Oldfield, counsel Edward Delay, the Engineer
TRIBUNAL DECISION ON MOTION AND APPEAL
1The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this S. 54 appeal hearing by Zoom video conferencing on September 13, 2022, September 14, 2022, and December 14, 2022. This is an appeal by Van Miltenburg Farms Ltd for their assessments on Lots 3 & 5 Concession 3 LRE, and the Engineer’s Report for the Geiger Drain (“the Report”) dated May 2021 was prepared by Edward Delay M. Eng P. Eng. (“the Engineer”) of R. J. Burnside & Associates Limited, Woodstock along with assistance from the junior engineer Natalie Connell, P.Eng .
2A Pre-Hearing Conference was held by video on December 9, 2021 which was attended by John Van Miltenburg, President of Van Miltenburg Farms Ltd and by counsel, Mr. Oldfield for the Respondent. The Pre-Hearing Conference was adjourned to give the parties an opportunity to exchange further information and to have settlement discussions
3A second Pre-Hearing Conference was held by video on April 1, 2022. This was again attended by John Van Miltenburg, President of Van Miltenburg Farms Ltd and by counsel, Mr. Oldfield for the Respondent. The Hearing dates were set at that time.
4At the outset of the hearing, it was raised by the Chair that several of the reasons for appeal relate to Section 48 of the Act, and a Section 48 appeal is not before the Tribunal. The Tribunal agreed to hear a verbal motion seeking an extension under Section 100 of the Act to file an appeal under s. 48.
Motion to for Extension of Time to File a s. 48 Appeal
5The Moving Party, Van Miltenburg Farms Ltd, requests an extension of the time to file an appeal under Section 48 of the Drainage Act, R.S.O. 1990 c. D.17 (“Act”) pursuant to Section 100 of the Act which provides that the Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference.
6A notice of appeal under Section 48 is required to be served within 40 days after the sending of the notices of the first sitting of the Court of Revision, in this case by September 26, 2021, as the Notice of first sitting was dated August 17, 2021.
7The Moving Party, has the onus of convincing the Tribunal to exercise its discretion in their favour to grant the appeal.
8The following sworn testimony was provided by John Van Miltenburg on behalf of the Appellants:
On July 20/21 at the council meeting to consider the Report, he was not given the opportunity to speak about the report before Council passed the by-law.
He called Ed Delay at home after the meeting and complained about not having the opportunity to speak and was told he would get him an opportunity.
He was given an opportunity to present his case on August 10, 2021, before council but got cut off as the mayor said they had only allocated 15 minutes for his presentation so briefly summed it up.
He received a letter and forms to present his case and the notice to put in an appeal to the court of Revision dated August 17, 2021.
On Sept 27, 2021, Brad McRoberts from the Municipality emailed the forms for the Section 54 appeal to the Tribunal.
He called Timothy Brook at OMAFRA and was advised he was passed 40 days from the passing of the by-law so was not able to make a s.48 appeal, but he could address it all in a s.54 appeal.
He did not consult legal advice as he contacted OMAFRA.
He did receive a letter from the Municipality dated August 4 which had a one line mention of two different appeal timelines but he thought he would get it straightened out on August 10, 2021
Decision on Motion
9There are two cases the Tribunal turned to in making this decision. The first, Bruce Beach Municipal Drain Phase 1, 2021 ONAFRAAT 19, also considered an extension of the time period to file an appeal under s. 48 of the Drainage Act. That case indicated that the tribunal should use the same tests as the courts when determining if a late appeal should be allowed. As set out in Bruce Beach at paragraph 9, the following factors should be considered on such a motion:
“(1) whether the moving parties formed a bona fide intention to appeal within the time limit;
(2) prejudice to the responding party as a result of the delay; (3) the length of the delay and reasons for the delay and (4) the merits of the proposed appeal. Ultimately all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires. No one factor is determinative. (Alaycheh v. Alaycheh, 2020 ONSC 6006)
10The second case the Tribunal considered was referenced by the Respondent, Switzer and McLean Switzer Drains (RE) 2019 ONAFRAAT 10. Although this case considered a Municipality’s application to extend time for an appeal under s.72 of the Act, it sets out on page 4 an important consideration regarding all appeal time limits under the Act, that adds an additional factor, exceptionality:
“Extending a time limit established in legislation by the legislators should not be a matter of routine, otherwise the legislator’s intentions in creating time limits would be rendered meaningless. Therefore, the hearing panel concludes that extending a time limit created in the Drainage Act should be treated as an exceptionality.”
Bona Fide Intention to Appeal
11The Tribunal finds that the Appellant had formed a bona fide intention to appeal within the time limit imposed by Section48 but either thought he missed the timeline or was unaware of the timelines. However, the Municipality did send documentation out on August 4, that he received sometime before August 10 that did briefly set out two different appeal timelines that he did not act on as he thought it would be resolved at the August 10 meeting. Based on his evidence he made the same presentation to council and the Court of Revision which clearly involved Section 48 matters more than Section 54 matters.
Prejudice to the Responding Party
12The Respondent has indicated that as the engineer is available and present for the Section54 appeal that would limit some of the prejudice to the Respondent. However, the Tribunal finds there would be some prejudice to the Municipality as allowing such an appeal would in all likelihood cause further delay to this drain project and potential changes to the Engineer’s Report which would cause significant delay.
The Length of the Delay and Reasons for the Delay
13While the Tribunal accepts the Appellant‘s evidence that he believes he received incorrect information from Mr. Brooks at the Ministry, it is unclear when he received that information. There was also no evidence given as to what information the Appellant provided to Mr. Brooks to illicit the response he said he was given. The Tribunal did not hear from Mr. Brooks at all. It is possible he misunderstood the information he received. Regardless of what specific information he received and when from Mr. Brooks, there is not a justified reason for waiting until the first day of the Section54 hearing to bring such a motion. The onus falls on the Appellant to look into this appeal period and to have raised the issue in a reasonable time. If the Tribunal allowed an appeal now it would be approximately 11 months late.
The Merits of the Proposed Appeal
14The Notice of Appeal disclosed some merits to the appeal regarding fair market value allowances although not enough details to really assess this point.
Exceptionality
15The Tribunal does not find there is enough evidence to support exceptional circumstances. The Appellant blames the failure of the Municipality to let him speak before Council on July 20, 2021, as the reason for him missing his appeal period. That was rectified with the opportunity he was given to speak on August 10. The Appellant also indicates the information provided to him by Mr. Brooks is another reason that he missed the appeal period. He did not look into this any further and he did not seek legal advice. There is also no evidence that he made any direct inquires with the Municipality about a section 48 appeal. The onus is on the appellant to look into these timelines.
16It is unfortunate that the Municipality did not provide more detailed information on the process and timelines, but it is noted the Municipality does not have any statutory obligation to provide this information.
MOTION DECISION
17When considering the totality of the submissions and the factors from the Bruce Beach case and the exceptionality factor from Switzer, the Tribunal denies the motion under s.100 of the Act to extend the time to file an appeal under s.48.
BACKGROUND TO THE GEIGER DRAIN – Set out in the Report
18The below summary of the Drain sets out the history and current conditions as set out in the Engineer’s Report and confirmed in evidence by the engineer Edward Delay as the current conditions of the Drain.
19The existing Geiger Drain is comprised of both an open channel and closed drain. The closed ‘A’ Drain was built in 1967 and is a closed portion. It begins at a catchbasin on the southern ROW of the Hensall Road and continues south through Lots 4 & 5, Concession 3, L.R.E and outlets into the A Drain open channel in Lot 4. The closed portion of the drain is in good condition. The Engineer’s report sets out that there is also a road crossing under Hensall that connects the A Drain catchbasin in Lot 5 to a buried structure on the north ROW but this is not currently part of the municipal drain. It goes on to say that the surface and subsurface flows from Lot 6 do not have a legal outlet.
20The open portion of the A Drain was constructed in 1980. The A Drain channel continues from the closed A Drain outlet southwest crossing Rodgerville Road and outlets in the original Geiger Drain from 1919 which continues downstream and becomes Black Creek. The channel is stable and well vegetated in most areas upstream of Rodgerville Road. The channel is abutted on both sides by worked agricultural land with little to no vegetated buffer between the worked area and channel banks. There are two private field crossings that appear to be in fair to good conditions.
21The Geiger Drain 1918 branch is comprised of tile that was constructed in 1919. It starts midway through Lot 5, Concession 14 H.R.S. and outlets in the A Drain catchbasin on the Hensall Road southern ROW. Its deteriorated state did not permit a camera inspection. It may still provide some drainage, but ponding has been observed within Lot 5 Concession 14, H.R.S. It is believed to be undersized and likely partially blocked because of its age.
22The ‘B’ Drain 1969 closed portion begins at a catchbasin on Oak Road eastern ROW in Lot 4. It crosses Oak Road via 600 mm dia. It outlets into the B Drain open channel at the western ROW and was found to be in fair to good condition. The ‘B’ Drain 1980 open portion is an open channel from the pipe outlet at Oak Road western ROW and continues to outlet into the A Drain in Lot 4. The banks along this drain were well vegetated and there was no significant erosion observed.
23Van Miltenburg Farms Ltd owns Lot 5, Concession 3 L.R.E that outlets to the A Drain tile at multiple locations. They also own Lot 3 that outlets to the A Drain channel at multiple locations as well as Lot 6, Concession 3 L.R.E., which is situated north of Hensall Road
Surface Water – As set out in the Report
24North of Hensall Road surface water ponds in the low-lying area on Lot 6 as there is no surface culvert that conveys flow under the roadway. South of Hensall Road, surface water generally flows south through the low run that exists over top of the existing closed “A” Drain. The water flows in this low run through Lots 5 and 4 to the open portion of the 1980 A Drain but there is evidence of soil erosion following storm events. Landowners have indicated that larger storm and snow melt events combined with insufficient tile capacity have resulted in ponding east of Oak Road in Lots 4 & 5, Concession 14 H.R.S. There is a low area on Lot 5, 200m east of the existing ‘B’ Drain catchbasin and there have been wet conditions observed year round at this location.
ISSUE
25The sole issue to be determined in this Section 54 appeal is whether the assessments to the Appellant’s properties are fair and reasonable?
EVIDENCE OF THE PARTIES
Edward Delay, the Engineer
26His qualifications as an engineer and expert in municipal drains was conceded by the Applicant. At the outset of the hearing the Report was entered as an exhibit to the proceedings. The information set out above in the background is part of the evidence.
27Mr. Delay gave the following direct testimony through questions from the Municipality's solicitor G. Edward Oldfield:
(a) He has been employed by Burnside since 2014 and drainage work has been his primary focus.
(b) He has completed 3-5 reports per year and has worked for several municipalities.
(c) He was identified as the engineer of record after Burnside was appointed by Council in April of 2019 under Section 78 of the Drainage Act for repairs and improvements of the existing Geiger Drain.
(d) During preparation of this report, Natalie Connell played the role of a junior engineer, providing technical support, amassing information and drafting portions of the engineer's report.
(e) He noted that Ms. Connell’s training time was not invoiced to the project.
(f) He was the senior engineer and was responsible for all work related to the project.
(g) He was present for the majority of the process including the onsite meetings, some of the field survey, the camera inspection, both information meetings, the utility locates and presentations to Council.
(h) At the onsite meeting in April of 2019 there was a discussion with Mr. Van Miltenburg about extending the drain to cross Hensall Road to the North side to Lot 6.
(i) It was explained to the Van Miltenburgs that as far as he could tell from his review of the previous engineer’s reports that the 1967 Geiger Drain stopped on the south side of Hensall Road. Further to extend the drain upstream to the north side of Hensall Road would require a petition under Section 4 of the Act.
(j) At that time the Van Miltenburgs were eager to proceed with that and submitted a petition. This did not really change the process significantly as we started it with a Section 78 and then we added on the Section 4 petition which is quite typical.
(k) Mr. Delay referred to the Report Appendix I which contained the engineering drawings related to this project and referenced the following specifics:
Drawing 1 of 6 showed the contributing watersheds and the extent of any lands contributing to this drain and the various branches.
He noted Station A0+752 on the south side of Hensall Road that is the existing upstream end of the 1967 and 1918 drains. The proposed extension of the A Drain to the north side of Hensall Road to Station A0+774 was noted. There is what is believed a private existing crossing under Hensall Road.
The properties owned by Van Miltenburg Farms are 23-009 being lot 6, 23-008 being Lot 5, and 23-006 being Lot 3 all in Concession 3 L.R.E. 23-007 being Lot 4 of Concession 3L.R.E. is owned by Kemerinks.
He explained that when it is a section 78 appointment, there is a previous drain, and we refer to the original drain and associated watershed. We refer to the original drain and report and walk the area of the watershed to field verify the watershed boundary. We also ask for input from the landowners at the meetings.
It was noted that the lines in white on the drawings refer to the existing drains.
The open channel portion of the drain from Station -A 0+ 506 (downstream END OF WORK,) upstream to A0+127 is to be deepened to accommodate a deeper pipe outlet at Station A0+127.
There is an existing B Drain from 1980 that extends to the east side of Oak Road. After discussions with the landowners on the east side of Oak Road, a spot clean out is proposed.
The property owners expressed an interest in keeping the existing pipe section that begins at Station A0+127 and extends upstream to A0+774 (1967 Drain). This is a 450mm (18 inch) pipe going to a 400mm (16 inch) pipe going toward Hensall Road. The proposal is to place a deeper 30 inch (750mm) pipe at the outlet going to a 24 inch (600mm) pipe up at Hensall Road.
Drain C parallels Hensall Road. Based on existing information the current closed Drain is from 1918, it is proposed to replace with a new 24 inch concrete closed drain with catch basins
(l) For the closed pipe systems, the design followed the drainage coefficient methods as outlined in Appendix H. For the open channel portions of the system, the engineered berm, and other structures, hydrologic modelling of design storms and hydraulic modelling was used.
(m) There was nothing unusual with this design. The buried surface water inlets are hickenbottoms. The engineered berm and rock riffle, as well as the buffer strip are greener measures which are useful offsetting measures to address the reviewing agencies requirements.
(n) The existing private drains are considered in the report. The proposed closed pipe drains are outlets for private tile drainage systems. On Lots 4 and 5 there are some older systematic private tiling that outlet in to the open channel and into the closed pipe.
(o) For new tile systems as proposed for Lot 6 it is typical to require a deeper outlet. If you are going to upgrade the private systems you need a deeper outlet.
(p) In Huron County it is typical to have closed pipe systems if there is enough gradient to make that work so you have the land over top of it to work.
(q) Appendix H sets out the design summary along with the current drainage co-efficients.
(r) Drainage coefficient is the depth of the water that can be drained over 24 hours.
(s) The existing A Drain would drain a half inch (13mm). The current standard would install a system capable of draining 1.5 inch (38mm). It is also the maximum size OMAFRA will grant. A tile drainage system will outlet much quicker resulting in higher yields by farmers.
(t) Appendix H of the report includes the required capacity and pipe sizes for the closed systems and the hydrologic and hydraulic analysis of the open channel and culvert crossings. A detailed explanation of the design process was provided as well as references to the Tables in Appendix H
(u) Branch B serves a smaller watershed and is appropriately sized
(v) Riffle structures are habitat features that we get into on D class channels. D Class Drains are the most sensitive type of drains that are cold water with top predator, migratory trout or steel head salmon. They are typically rock structures and a new feature that is necessary and appropriate for a project of this nature
(w) The engineered berm is new and proposed between Lots 4 and 5, between the Van Mil- tenburg and Kemerink properties at Station A0+328.
(x) During the onsite and camera investigations we noticed erosion in the area of the proposed berm.
(y) The engineered berm is steep on the upstream side and the downstream side is flatter and cropable (it is small and steep on upstream side and the land owner is given an allowance for this).
(z) He did not recall speaking to Mr. Van Miltenburg specifically about the engineered berms but they were discussed at the information meetings
(aa) All the properties along the open channel are tilled right up to the edge of the channel, which is common but an undesirable practice. Conservation authorities note benefits for riparian strips or other practices to encourage a physical set back from the channel, with some kind of grass to interrupt the flow coming in from the fields.
(bb) The riparian buffer strips are a physical set back on either side of the channel, typically 10 feet to stop incoming sediment being deposited.
(cc) It was confirmed that the Drain summary on page 4 of his report describes the current conditions.
(dd) There was an onsite meeting on April 30, 2019, required under the Drainage Act and following was noted:
Discussed with Ron McCallum, the Van Miltenburg’s tile contractor, about the need for a deeper outlet and discussed the existing private crossing under Hensall Road.
Treated the onsite meeting for the original Section 78 Report on April 30, 2019, as the onsite meeting for the subsequent petition under Section 4.
(ee) There was a camera investigation of the closed drains on May 14, 2019, to see the condition of the existing drain it was noted that:
the existing concrete tile on the Van Miltenburgs (Lot 5) property and the Kemerinks property (Lot 4) was in good condition
we would upgrade to a larger and deeper outlet, to increase the Drainage coefficient capacity from a 0.5 inch to 1.5 inch. New tile drainage systems seem to be getting deeper so installing a new deeper drain will last 50-100 years
(ff) There is a conflict with an Enbridge gas main on Hensall Road, the drain had to be deepened. The increased cost for extra engineering, the increased excavation costs and costs to put in larger pipe because of the flatter gradient are assessed to the utility.
(gg) The work under the Drainage Act works in parallel to other legislation and agencies that have an interest in the project. In this drain it was the Asauble Bayfield Conservation Authority, the Department of Fisheries and Oceans and the Ministry of Environment Conservation and Parks, he further explained:
The Asauble Bayfield Conservation Authority must be included but the other two were invited as they have competing legislation and there are endangered species including the Bobolink
The objective is to have an agreement with these agencies so certain features are included and it will be easier to get their approval for the project. Sometimes these features add to the cost, but it is the right thing to do.
The engineered berm was not initiated by the reviewing agencies, but we thought it could stop soil erosion
(hh) The process used to calculate assessments for specific properties is the modified Todgham Method, specifically he said:
First the equivalent areas are determined, taking the watershed, we look at the area of each property included in the contributing watershed and determine the land use of those properties and they are factored based on how much is in bush, how much is paved and how much is agricultural land.
Agricultural lands are a factor of 1, a treed area is a factor of 0.5 as it retains more water, this is how much run off they would have.
Then we break the drain up into sections based on the length of the drain on each property.
Then we determine the cost for each section based on the drain proposed on that property.
Then we would have an assessment for benefit and for outlet liability.
In the last section at the outlet, the benefit/outlet split may not be as equitable so we have a direct outlet modification.
We determine the variation of assessments for the length of the drain. The benefit is zero per cent at the theoretical beginning of the drain and a hundred per cent at the top of the drain, and vice versa for the outlet percentage, and then we have an actual assessment for each section of drain.
The last step is the final fairness test after the engineer has completed all the assessments. By looking at it at a dollar per hectare and once we believe the assessment is fair for that watershed then we prepare the assessment sheet.
Todgham was a drainage practitioner and he developed the system and every practitioner in the province uses some version of this method. There are methodologies that are very similar and there are ones that use only pieces of it.
It is simply a guideline, it is not the law. In the OMAFRA Publication 852, the Drainage Guide for Engineers, there is a recommendation that you use it as a starting point.
We use the same methodology as a starting point but when we get to the end and then apply the fairness test, if it does not seem fair, we may modify some parameters. Under Section 11 the engineer is bound to be fair and impartial.
We had several iterations because of landowner inputs so we looked at it several times so we could say it is the fairest we could be.
I cannot recall specific changes that were made but I am sure we did make some changes after hearing input. We do take the landowners comments to heart, but we are bound by a duty to do what is appropriate.
(ii) Appendix C, Special Assessments sets out that Section 26 Assessments are a little different as they have to do with increased costs for roads or utilities.
We do a cost estimate based on previous tenders and sometimes talk to contractors. We look at what the equivalent drain would cost to go through the section impacted by the road or utility, and that is taken off the construction cost for that section. We usually have a specific engineering charge as it will cost more for a bore than a typical pipe and there will also be a charge for onsite construction inspection.
In this case we have a Special Assessment on Branch A for the Hensall Road crossing and we have one for the Oak Road crossing and one for the Enbridge gas main.
(jj) Appendix D are the assessment schedules for construction that apply to every property in the contributing watershed.
Table D1 is for Branch A, D2 is for Branch B and D3 is for Branch C. Then we have a net assessment in D4 which is really just for ease of use for the landowner, so they have all their assessments in one place.
Van Miltenburg appears three times in Table D1 for Branch A as they own three properties. Each of the three lots were assessed separately, and it is the engineer's opinion that the numbers for Branch A are fair and appropriate.
There are no assessments for Van Miltenburg for Branch B.
There is an assessment for Van Miltenburg Farms for Branch C (Lot 5) in the amount of $8,730.
It is the engineer's opinion that this is a fair an appropriate assessment for Branch C.
On D4 there is a total assessment for each property.
(kk) Looking at Appendix B, Project Cost Estimate, we look at other project costs as guidelines. (ll) Burnside would have 5-10 similar projects and we look at those to compare and we also sometimes call trusted contractors to ask them if they think those numbers sound right.
This was the process followed in this case.
(mm) The cost estimate of $510,000 in my opinion is a valid price for the project.
(nn) If there is a specialized component, we will look at previous tenders, even if 10 years old, and we call the supplier and get an up to date budgetary number and we might also call a trusted contractor to ask about recent price changes.
(oo) On this project the Engineered Berm was the only thing we did a little more research on as excavation is an item that varies quite a bit, otherwise it was a standard process for costing purposes.
(pp) The report in my opinion represents a fair cost as of the date it was done and does represent a fair assessment to the individual landowners for their portions.
[28] Upon questioning from the Applicant and the Tribunal he further testified:
(a) In his opinion the 1967 Drain gives Lot 6 a drainage coefficient of more than .1 today as it is serviced by a private 600mm drain under Hensall Road. At the onsite meeting, and during the camera investigation at the property line between Lot 4 and Lot 5, he recalled seeing some rocks beside the catch basin. There was some evidence that there was some erosion and he thought it would be a good place to put in an engineered berm so there is not anymore soil loss.
(b) He originally stated he believed the soil erosion in that location is caused by the low run and all of the sheetflow coming together in the spring melt. When asked whether he recalled the plugged weeping tile to the offset catch basin that was repaired at the time of the camera inspection, and that the water found a short run to Drain A, Mr. Delay, responded that he did not specifically recall but it did sound familiar.
(c) He explained that the sectional costs are in the D2 worksheets attached to the March 25 email, and Mr. Van Miltenburg’s assumption about the engineered berm costing Lot 5 the amount of $64,780 as an assessment is incorrect, and went on to explain in detail:
On the Lot 4/5 property line even if there was not the engineered berm, there is still a catch basin and if you are on the upstream side of the catch basin you get assessed half the cost of that catch basin because you can connect your tiles into it, and if you are on the downstream side, you get assessed half the cost because it is protecting you from the upstream water.
The berm cost was assessed as follows: 25 per cent to the Van Miltenburg property Lot 5 on the upstream side, and 25 percent to the downstream Kemerink property (Lot 4). This will include the catch basin, hickenbottom, buried surface water inlet, the rip rap spillway on the berm itself and the seeding on the berm to the Van Miltenburg property, Lot 5.
The other 50 per cent is applied to all the upstream properties that are using that berm. That includes the Van Miltenburg property on Lot 6 and the properties draining into Branch C east of Oak Road.
The total berm cost in the A4 break down at station 0+328 in the worksheet to the Van Miltenburg property Lot 5 was $10, 650. This the cost of the Berm to the Van Miltenburg property and that includes the engineering admin cost associated with this item.
(d) Section A3 from Station 127 to Station 328 is 201m long. The total section costs is $64,780 which includes installing that length of drain, the engineering and construction costs, and half the catch basin (the break down is included in a worksheet entered as Exhibit 5).
(e) It was noted by the Tribunal panel the Tables D5, D6 and D7 are entitled Assessment for Construction for Branch A, Branch B and Branch C respectively. Mr. Delay acknowledged that this was a typographical error in the report and the Tables should be titled Assessment for Maintenance.
(f) With regard to optimal depth for private tiling, lateral tiles actually affect production, and we want them to be 3 feet or less. The lateral tiles are not what we are concerned with. It is the outlet tiles from those laterals. It is the mains and headers which depending on the configuration of your property, and if you have low holes etc. will impact where the headers outlet. We have plenty of cases where the tiles are done before the municipal drains and they put them as deep as they can, then your private system outlets more freely. We are concerned with where the headers run into the Municipal Drain outlets.
(g) He believes that Lot 5 is systematically drained and that they have adequate drainage.
(h) Farmers are typically improving everything and in ten years and fifty years that is where the improvement will show up.
(i) He agreed there may very well be a riparian strip of one meter on Lot 5 and that they are not working it right to the channel, his memory is not perfect.
(j) The existing municipal drain stops on the south side of Hensall Road. We did find an existing pipe with the camera. I believe it is a 600mm clay and it is under Hensall Road. It is not mentioned in any of the Municipal Drains so we can only assume it was done privately.
(k) Estimated total costs are based on past tenders and past projects and sometimes confirmed with contractors. The estimates are at the time of the report and do include an inflation factor between 10-15 per cent.
(l) Typically, the drain sections are broke up into properties but they can also be where something enters the drain. The total cost is broken down by sections.
(m) There is certain percentage derived from the outlet/benefit split and there is a portion that is brought upstream for those owners to pay for the downstream works.
(n) The 85/15 per cent split is his own engineering judgment as to how the benefit/outlet split should be broken down. We use two metrics, the length of that section used versus the length of the downstream or the overall section of the drain depending on how the drain is set up and the second one would be the equivalent hectares upstream using that section. We use engineering judgment when comparing those two.
(o) The equivalent hectares is different than actual hectares as they are factored based on land use.
(p) When asked about Branch C, how does he come up with $3,444 for 1.53 hectare on the west side of Oak Road, and then on the other side of Oak Road, Lot 6, is only paying $1,444 per hectare and they are using the entire length of the Geiger drain and they are one of the cheapest, how is this fair? And that Kemerink, Lot 4, and Van Miltenburg Lot 5 on the bot- tom end, using the least amount of the drain, that they are assessed 2-3 times higher than the top end? Mr. Delay, read his explanation contained in Exhibit 6, page 46/49 in paragraph g) that outlines the variations of assessments on the drain and explained how he splits up the Drain as set out on those work sheets, he said:
There are two different things we are talking about. One is the benefit and outlet split. In this case we start with the benefit percentage in the downstream sections being low and conversely the outlet percentage is high. When we switch to upstream, the benefit percentage will be high, and the outlet percentage will be low.
In reality what people are assessed differs from this because in the downstream sections the benefit costs will be higher as the costs of that section of drain is higher and we are deriving the benefit assessments from the cost of work on that property.
In our assessment sheet there is an outlet percentage that is carried upstream from section to section because people in the upstream sections have to pay towards the downstream section.
We don’t just assess everyone downstream the cost just because they have to have a big pipe, as it is everyone's water going through. The upstream have to pay because they have an outlet so often 50 per cent of those costs are going upstream.
At the top of the drain on Hensall Rd and lot 6, the benefit is assessed to the road and some to the upstream property, but we are running out of properties to pay outlet, there is only one property left to pay outlet so at that point the outlet rate is high even though the percentage is low because that property is at the end of the line and using the entire system downstream.
Branch A vs Branch C – if you are at the top of the drain – watersheds come in all shapes and sizes and it’s a square peg in a round whole, sometimes a balloon watershed at the top and a small one at the bottom, the split we will see is the properties where the drain is located, are often going to have larger benefit assessments as it is an expensive piece going on their property whereas you go upstream, the pipe is smaller and costs less.
On Branch A, the Van Miltenburg property at Lot 6, they are at top of Branch A and they are only using Branch A.
On Branch A, this is everyone assessed in the whole watershed, the properties where the drain is located they are paying benefit. Lot 3 owned by Van Miltenburg farms is assessed $5,310 in benefit, they are at the very end of the drain so they are assessed $3,010 in outlet. That is because they have a large area but it is at the bottom of the drain.
Lot 4 Kemerink, they have 100 acres, 40.47 hectares, they are assessed $59,000 in benefit. On paper it is benefit to their property and increases their land value.
They only pay $13,000 in outlet as they have an outlet right there to the channel although they don’t need the drain on their own property so much for outlet. The need the drain downstream where we are doing work.
Further up on the drain, the Van Miltenburg Property, Lot 5, another 100 acres, they are assessed $72,000 benefit, so you can see the outlet goes up but the benefit also climbs up as the cost of that section is very expensive.
Van Miltenbrug Property, Lot 6 is above Hensall road. As they are getting a legal outlet we charged them some benefit but they are paying the highest outlet at $38,000.
Hensall road these are the actual measured area not equivalent, so for 2.8 hectares getting a benefit of over $13,000 and paying $12,000 plus in outlet as they have to ride the entire system as outlet.
J Traquair property, he has 42 hectares they have no benefit as they are not directly connected to Branch A directly. They have Branch C that services them but they have a large outlet assessment of $34,000 as they have over 100 acres assessed into this.
(q) Branch C for those same properties, which comes from Branch A south of Hensall road and services land just to the east of Oak Road, he explained in detail,
Things have switched here, the main reason for this branch is for the Traquair property so they have a benefit assessment similar to Lot 6 on Branch A. So, all they are getting is a legal outlet so they are getting a benefit assessment over $5,000 but the main reason to go that far upstream is for them. As they are the last property upstream they are getting an outlet assessment of over $36,000.
Van Miltenburg Farms on Lot 5, the actual drain is going on their property, so they have a drain going on their property and have a benefit assessment of over $5,800 and a small outlet around $2,800 for use of that on their property which they could use.
Allowances in the Drainage Act are an offsetting mechanism, so yes the Van Miltenburg Farms property Lot 5, is charged benefit and outlet for Branch C which arguably they will not use but that is what the Section 29 Right of Way offsets. We are buying the land for that purpose, it is not a direct correlation but that is in my opinion how that works. The damages in Section 30 are different. It is for crops there at the time. The land owner can still use Branch C, they may not but they could, we try not to assess on what can be but consider possible actions in the future but that is not always fair either so we try to do this with a balanced approach.
(r) In his opinion he believes his report is fair and that his colleagues who reviewed it believe it was fair.
(s) The industry does not separate the assessment for Injury Liability and it is incorporated in the outlet liability assessment. We don’t look at injury liability itself but the Injury Liability clause of the Act has not been repealed.
(t) The Appellant stated: that in his opinion Lot 5 has zero drainage issues in the time period he has been involved with it and yet is charged $72,000 of benefit and there is no benefit whatsoever in accepting the water from the east of Oak Road. I have to pay $72,000 to subsidize Lot 6 for an outlet (which he also happens to own) but I have every right to sell off that parcel, how is this justified? Mr. Delay responded:
When we assess for example catch basins, it is on the property line, we assess half to the upstream to connect their tile but the benefit to the downstream side is the protection.
When we enlarge systems there is less surface water and better control of sub surface and surface water. You are putting in a bigger drain that will last longer and convey more water. So for the upstream people if you put a pipe in the road for Lot 6, if you ever have any ponding there, they are now going to have improved crop production, appearance and better land value, but for the low lying land it is really the better control of surface and subsurface water
(u) He confirmed that the fairness test was applied to individual properties and was contingent on the location of the property within the drainage system, all the properties owned by one party were not lumped together.
(v) The benefit assessment for Lot 5 was derived from the benefit/outlet split and noted that Lot 5 does require an outlet, that the proposed work will provide better control of surface and subsurface water and will increase the property value.
29It is noted that at the beginning of Day 2 when the panel requested a recalling of Mr. Delay to answer some panel questions, the Tribunal did explain to Mr. Van Miltenburg the rule in Brown v. Dunn. He was told that if he is going to be raising something in his own testimony that is contrary to another witness’ testimony or that another witness could answer, he needs to put it to that witness. It was explained to him that any assumptions he has about statements or numbers in the Engineer’s Report, needs to be put those to Mr. Delay to give him an opportunity to explain and if he does not, he will not be able to put those things in evidence. He was given a further opportunity to question Mr. Delay on those assumptions and was clearly told that he needs to ask him about these worksheets or anything else now, as once Mr. Delay is finished, he will not be recalled.
John Van Miltenburg
30Mr. Van Miltenburg testified on behalf of Van Miltenburg Farms. He provided extensive evidence on all aspects of the assessments and drain. He organized his evidence topically and where appropriate we have included the heading under which he provided the evidence.
31In his direct testimony the Appellant offered the following evidence:
(a) It was difficult to find another engineer to criticize or peer review another engineer's work.
(b) He referred to several online Drainage Resources that were filed as Exhibit 8 including Drainage Assessment Revisited, 1988 by Dries &Todgham; Spinning the 78, Questions on the Use of S 78 of the Drainage Act, 2008, by Sid Vander Veen and Environmental Registry of Ontario, Re: Comments on Drainage, ERO 019-1187.
(c) He also referred to a copy of By-Law 9-1967 Drain including the 1967 Drain plan and profile that were filed as Exhibit 9 and referenced page 7 of the 1967 Drain By-Law which referenced a pipe crossing Hensall Road.
Timeline and Time Delays
(d) The Appellant reviewed in detail his chronology of events which were submitted as his document number 29 and filed as Exhibit 12.
(e) The Appellant raised several issues with time delays relative to the provisions of the Drainage Act and highlighted his efforts to comment on the process and the Final Report of the Engineer.
Issues with the Process, the Reports and the Assessments
(f) The Appellant stated that there was not enough input from landowners and further that he was not allowed to speak at the Council meeting on July 20, 2021.
(g) He opined that the Preliminary Report of August 2019 was more accurate than the final report.
(h) The total estimated cost for the project was $366,000 in August 2019, four (4) months after the on-site meeting; $435,000 in October 2020 and $510,000 in the Final Report.
(i) He accepts small variances, but the final report is almost a 40 per cent increase in cost.
(j) He noted that if the first preliminary report cost estimate was $510,000 and had the same allocation, we would have been adamantly opposed as the costs outweigh the benefits.
(k) He set out in detail the changes in allocation to his properties between the Preliminary Re- port and the final report and noted a 33.02 per cent increase.
(l) The Appellant raised concerns about the total hours of engineering and the resulting cost and noted that the involvement of Natalie Connell as a junior engineer and then an engineer cosigning the report may have impacted the costs.
(m) The Geiger drain is very similar to the 1967 drain, it is very simple, the watershed has not changed and the acreage is only minimally changed, the only significant change is the larger pipe and increased depth.
(n) He noted that he objected to the inclusion of the engineered berm and there was a lot of drain feature changes without any discussions.
(o) The initial request was clearly intended to be only for a deepening of the existing road crossing of Hensall Road.
(p) The owners of the properties east of Oak Road agreed if the drain is being updated the drain capacity should be increased to meet current drainage standards.
(q) The Kemerinks, Lot 4 owners wanted some drain closure but were concerned about costs.
(r) Any new tile along Hensall Road (Branch C) would be for the benefit for the properties located east of Oak Road as they need it for outlet.
(s) if Branch C is increased to current standards, that forces the downstream also to be upsized, this would create injury or outlet liability which should be assessed to properties East of Oak Road.
(t) Van Miltenburg Farms was not interested in updating Branch A, but only wanted a deepening of the existing road crossing, if there became an issue downstream because of the deepened road crossing, there would be options, alternatives like making a private agreement with the owners of Lots 5 and 4.
(u) North of Hensall Road, Branch A, according to page H5 of the report, provides outlet potential to increase from 0.5 to 1.5 – a 3-fold increase.
(v) East of Oak Road, Branch C, according to page H5 of the report, provides outlet potential to increase from 0.1 to 1.5 – a 15-fold increase.
A Review of the Existing Drain
(w) Van Miltenburg Farms has been involved with the lands in this watershed since 2005 and bought Lot 5 in late 2017 with a closing date in January 2018.
(x) during their involvement with the property, they have not seen any crop loss due to drainage and have not observed any evidence of significant soil erosion even after a storm event.
(y) The final report on page 3 says that none of the systems appear to have been installed systematically and although they don’t have drainage maps for Lots 3 and 5, the land behaves like it is systematically tile.
(z) The previous owners said the 2 farms were systematically tiled, Kemerink owner of Lot 4 has drainage maps and Lot 4 is systematically tiled.
(aa) He referred to the Burnside package dated August 2020 (Exhibit 14, Van Miltenburg Reference 22(a)), which he maintained is much more accurate than the final report.
Page 10 – pictures of existing ‘A’ Drain Tile Outlet (1967) and existing ‘A’ Drain Catch basin at Hensall Road.
Page 11 – as the property was in hay there was no tillage, no cultivation
Mr. Delay testified that the land was cultivated up to the edge of the open stream, this field in fact was in hay and remained uncultivated until this year, 2022.
Page 12 – pictures of ‘A’ drain from camera investigation including the one broken tile on Kemerink’s property.
Page 13 – pictures of ‘B’ Drain Channel
Page 14 – pictures of ‘A’ Drain Field Crossings
Page 21 – a Burnside tool showing the 5-year flood analysis, it shows the surface water originates East of Oak Road through the surface culvert on Oak Road.
According to the August 2020 Burnside package, the ‘A’ and ‘B’ drains are in good condition.
For the closed Geiger Drain (1918) along Hensall Road, it states that it needs new tile and plans to create Branch ‘C’.
This is the branch that takes the water from east of Oak Road.
(bb) He referred to the final report page 5, under surface water and noted if the soil erosion was that significant, why was it not mentioned in the Burnside package dated August 2020?
(cc) The low run was part of the 1967 report for the closure of the open drainage ditch, subsequent reports were for downstream on the open channels, there has been no reported work completed on the closed drain since 1967.
(dd) The issue of soil erosion caused by surface flow was due to a broken tile in Branch ‘A’.
o Which was immediately repaired at the time of the camera inspection
o Simple maintenance should not be interpreted as evidence of significant soil erosion.
(ee) For the last 17 years of our involvement, Van Miltenburg Farms has not seen any evidence to support this statement of soil erosion.
(ff) He entered a statement from Kemerink, owner of Lot 4, (Exhibit 10, Appellant reference # 27) Kemerink states:
“The issue of soil erosion caused by surface flow was due to a broken tile. It was located, wen the camera inspection was completed and immediately repaired. Problem fixed. We, as landowners, have not seen any significant soil erosion on the farm, even after a storm event.”
(gg) The Appellant noted that although on page 5 of the final report, it states “While a private tile system exists in the area, evidence of blowouts caused by surcharging and exceeded capacity was observed in multiple locations.” that these multiple locations are all east of Oak Road.
(hh) The Appellant stated:
o the open and closed portions of branches ‘A’ and ‘B’, work sufficiently for Lots 3, 4, and 5
o the closed Geiger Drain (1918) has not been worked on since 1918 but stated it still provides drainage.
o municipal drain is needed for outlet for the properties east of Oak Road
o water collects north of Hensall Road, that is why we requested a deepening of the road crossing, because Hensall Road acts as a cut off
o The existing infrastructure is already in place and satisfies the current drainage demands on Lots 3, 4 and 5 – properties south of Hensall Road,
(ii) The report makes reference to the 1967 report that the surface water generally flows south through Lot 5 and Lot 4 and when the ditch was closed there was a graded overflow The benefit assessed in 1967 was with channel closure, those benefits have been paid and should not be charged again.
The Depth of the Drain and the Gas Line
(jj) The Appellant went through in detail the changes made to the drawings for the closed portion of Branch A and noted the lengths and size of pipes and the gradients of those pipes for drawings presented in August 2019, June 2020, December 2020 and May 2021.
(kk) He believes that the engineers did not consider the affect of the gas line and the increased depth needed at the Hensall Road crossing, until the Final Drawing May 31, 2021.
(ll) The slope of the Branch A drain has changed on each of the available drawings.
(mm) The reports dated August 2019, August 2020 and October 2020, have zero allocation of costs to the utility, the gas line.
(nn) In the Final Report dated May 31, 2021, Enbridge Gas/Utilities was allocated a total cost of $45,170.
(oo) The existing pipe under Hensall Road was in place before 1967, the natural gas line was put in the year that Van Miltenburg Farms put up their dryer, in the 1980’s.
(pp) From the drawings included in the final report, it appears that the gas line is just below the existing drain, about an inch.
The Engineered Berm
(qq) The engineered berm is explained in the Final Report on pages H8 and H9 with the stated purpose is “acting as a stormwater storage area during larger storm and snowmelt events”
(rr) The Appellant stated that the costs of this berm are excessive, and the berm is not needed.
(ss) He set out his own calculations for the berm assessment to Lot 5, based on Mr. Delay’s testimony on the Sectional Assessment Worksheets, found in Ref # 14 (Exhibit 5) and determined the total assessment including administration costs being $11,775.00.
(tt) Only 16 per cent of the water allocated to the storage area comes from the surface area on Lots 4 and 5 but they are assessed 84 per cent of the costs of the engineered berm.
(uu) Conversely, 84 per cent of the water allocated to the water storage area comes from East of Oak Road and North of Hensall Road plus the Municipal right of way but they are only assessed 16% of the costs of the engineered berm.
(vv) The storage of water on Lot 5 is not a benefit but is a liability to Lot 5.
(ww) The costs should be assessed to upstream lands and the Municipality, not to Lots 4 and 5.
The Riparian Buffer
(yy) He does not agree with the riparian strip being included in the final report.
(zz) He feels it is like an expropriation and he does not feel a third party should have the right to negotiate an encumbrance on privately owned land.
Section 22 Assessment
(aaa) He disagrees with Mr. Delay’s approach of the “NET” assessment plus the lumping of individual properties together because of ownership, this is contrary to Todgham.
(bbb) After the October 1, 2020 preliminary report was received, he requested explanations on the total assessed to each property and in the verbal explanations Mr. Delay directed him to look at the “NET” amount not the Total cost to each property.
(ccc) Brad McRoberts, CAO of Municipality of Huron East letter dated August 4, 2021, found in Exhibit 20, Ref # 17) states, “If you continue your petition you will only be assessed the costs outlined in the Engineers Report, which is $74,801.”
o The $74,801, amount is the net assessment with lumping 3 individual properties Van Miltenburg Farm owns together
(ddd) Also, in Reference #17 (Exhibit 20) in Mr. Delay’s written submission to the court of Revision, he provided the sectional costs for each of the three properties owned by Van Miltenburg Farms and then on page 6 of 6, it includes a table for the Summary of Property Assessments that has three of the Van Miltenburg Farm properties.
(eee) This summary makes it clear that when adding all three properties together that Van Miltenburg Farms owns 43.4 per cent of the land and are being assessed a net of 41.4 per cent of the assessment of the drain to private landowners.
(fff) Assessment should not be on a flat rate as Mr. Delay reasoned but should be on the portion of drain used and on the specific value derived from the current drainage work.
(ggg) The Appellant expressed that he is not happy with Mr. Delay’s justification of benefits under Section 22 of the Drainage Act, noting his answers are general and vague and did not provide details.
(hhh) He disagrees with his use of percentages in the benefit/outlet applied to each section and does not believe the engineer provided an adequate rational for the splits between outlet and benefit.
(iii) He indicated that Mr. Delay’s testimony that benefits can only be assessed to properties with direct outlet is not in line with Todgham as set out in his Reference #2 (Exhibit 8A) which state:
“You cannot assess for benefit lands that are not reasonably close to the drains. (Usually those assessed for benefits are abutting the drain or perhaps one farm removed.)”
Any real benefit, Justification
(jjj) The Appellant referred to Todgham (Exhibit 8a) definition of benefit (Page 8) again as that is what Mr. Delay continuously referred to.
(kkk) He does not believe that any of the considerations reviewed by Todgham apply to Lots 3 and 5.
(lll) If the proposed drainage work is of no real advantage or actual benefit, to the land owner or agricultural value, the Drainage Act does not authorize an assessment for benefit.
(mmm) If there is a benefit assessed, it cannot be greater than the actual benefit on that property. (nnn) Todgham states, on page 13 “Is it fair to all concerned? Can I compare the assessments of any 2 properties (either neighbouring or in remote parts of the watershed) and say that, relatively speaking, they are being fairly charged for the value they will derive?”
(ooo) On page 29 of Todgham, “It is our understanding that a number of assessment appeals which have been dealt with by the Ontario Tribunal have resulted from the reluctance of the Engineer to appropriately assess the upstream lands for the value of outlet provided through lower lands.”
(ppp) $78,300 is the total section 22 benefit assessed to Lot 5 under appeal and $5,310 is the total section 22 benefit assessed to Lot 3 under appeal.
(qqq) Van Miltenburg Farms position is that there will be no real benefit as a result of the proposed drainage work to either Lots 3 and 5 because:
Lots 3, 4, and 5 are already systematically tiled.
The existing roads are on three (3) sides of Lot 5 and on two (2) sides of Lot 3. In addition, for the full length of Lot 5 along Hensall Road (on the north side) there is no culvert/no surface outlet, Hensall Road is a cutoff.
Currently Lots 3 and 5 have no drainage issues, including the area along Hensall Road, as it has access to the Branch A drain. In our 17 years of involvement with this water shed, there has never been a drainage issue on Lots 3 or 5 nor a reduced yield because of drainage.
According to the Soil Maps, found in Ref # 4 - issued by the province, large areas in Lots 5, 4, and 3, south of Hensall Road, have Perth clay soil.
Table 3, included on page 14 in Publication 29, found in Ref. # 1 - recommends for Perth clay soils, lateral drain depth from 24 to 28 inches.
The 1967 Plan and Profile of the Geiger Municipal Drain, found in Ref # 21(b) - shows the drain coverage at 40 inches. Therefore, deepening the drain will provide no additional benefit per Publication 29.
Van Miltenburg Farms has no need of Branch C at all. Lot 5 (south of Hensall Road) has lateral drains in place providing adequate drainage. It is our position that the entire benefit of Branch C is for the properties east of Oak Road.
The owners of the properties East of Oak Road agreed, if the drain is being updated, then the drainage capacity should be increased to meet current drainage standards – found on page 9 the final report. The increased size to Branch C forces the size of the drain downstream to be increased.
Lot 5 only contributes 1.53 hectares according to the Sectional Assessment Worksheets for Branch C - Ref # 14. These 1.53 hectares are being assessed $4,530.21 per hectare. Upstream is only being assessed $2,539.94 per hectare. The benefit should be offset by injury liability or outlet liability.
The majority of the water via Branch C comes from East of Oak Road and the municipal right of way. According to the Final Report, page H5, outlet potential increases from 0.1 to 1.5 coefficient - a 15-fold increase for the properties east of Oak Road.
Lot 5 has a 0.5 drainage coefficient based on 1967 design, but the acreage east of Oak Road and Hensall Road crossing are at .1 drainage coefficient. The project will increase value only for properties north of Hensall Road and east of Oak Road. Without the deepening of the Hensall Road crossing and the updating of the Branch C, the properties north of Hensall Road and east of Oak Road have limited drainage potential. Those properties will benefit from the proposed project. He added that,
o Lots 3, 4, and 5 (south of Hensall Road) are all systematically drained, have good outlet, maintenance was completed at the time of the camera inspection. The report consistently states that Branches A and B are in good condition.
The ponding, referred to in the final report, exists north of Hensall Road and east of Oak Road. There is no ponding on Lots 3, 4, and 5.
The soil erosion referred to in the final report, was previously explained. We feel that tile maintenance should not be interpreted as “evidence of significant soil erosion”. All concerns with the existing Branch A were resolved with required maintenance completed at the time of camera inspection.
in the “5-Year Flood Analysis” provided by Burnside, found on pages 20 and 21 in Ref # 22 - compare the existing drain to the proposed drain. The pictures clearly show the benefit is for the properties north of Hensall Road and East of Oak Road and not to properties south of Hensall Road.
Disturbing open stream, grassed slopes, etc. when there is still adequate free board at tile drainage outlets is not beneficial to Lots 3 and 4.
Deepening of the open stream is required because of the conflicting gas line, and the upsizing drain for the properties north of Hensall Road and east of Oak Road.
Van Miltenburg Farms actually purchased the lands under appeal in late 2017. The amount bid to purchase the lands, was based on the location of the land, the productivity of the land, the general flatness of the land, the livestock intensity in the area, and the general access to the lands. Lots 3 and 5 under appeal to the Tribunal have good outlet and that was considered.
The qualifications of the witness John Van Miltenburg are found in Ref # 26. Experience and the appellant stated that having actual skin in the game is much more realistic than any academics. Todgham refers to this as having boots on the ground. Based on our years of experience and firsthand knowledge from purchasing of lands, we feel there will be no increase in the Fair Market Value of Lot 3, Lot 4, and Lot 5, which includes the 2 properties under appeal.
Fairness to each property
Relative to Lot 5, briefly, the Appellant's analysis is as follows:
Everything upstream of A0+316, from final report H8, totalling 105 hectares use the Geiger Drain contributing to the water storage area.
Only 17.09 hectare contributing surface area are found on lot 5, the remaining 88 hectares are upstream of Lot 5.
Merging a 600mm drain at 0.15 per cent slope (Branch C) and a 600mm drain at 0.40 per cent slope under Hensall Road into the single 750mm drain sloped at 0.2 per cent slope can potentially fill the larger drain to its maximum capacity.
The 1967 drain profile shows 1000mm cover over the existing drain. Drainage Guide for Engineers Publication 29 calls for 600mm to 700mm depth to drains in Perth clay soils, so why go deeper as maximum benefit has been achieved, deeper is required because of the gas line.
Branch C drain will not provide any outlet opportunities but may lessen storm event runoff by allowing surface water from east of Oak Road into the drain catch basin at Oak Road. Hensall Road crossing has the potential of increasing surface water from breaching Hensall Road cutoff.
The proposed project will not affect workable acres or ease of farming, will not improve the farms appearance and will not increase market value.
$107,890 or $2,665.93 per hectare for Lot 5 while using only 62 per cent of ‘A’ drain
For comparison, Lot 6 uses 100 per cent of ‘A’ Drain for $43,120 or $1,191.16/ha.
Lot 5 uses 46.8 per cent of Branch C and is being assessed $2,787.52 per hectare while upstream using 100 per cent of the Drain is only being assessed $2,539.94 per hectare.
This fails on both Todgham method and a reasonableness test.
Costs
There were two (2) engineers on this project, both signed the Final Report - Natalie Connell, P.Eng. and Edward DeLay, M.Eng.,P.Eng.
The hiring of the lawyer, by the Municipality and Mr. Delay, to represent them at the Tribunal added substantially to the costs to the project it is not a requirement, we feel these costs should not be added to the cost of the Geiger Municipal Drain, the landowners should not be burdened with any of these additional costs, including the costs of the lawyer and any additional costs or fees of the engineers.
If the final report had been completed within the time required by the Drainage Act, Ms. Connell would still have been an E.I.T. engineer in training. The report was delayed.
The Final Report would have been completed before the Covid-19 pandemic, if filed as required by the Drainage Act.
The 40 per cent increase in costs reflects the inexperience and lack of quality of work completed throughout on the Geiger Drain.
The Municipality and the Engineers failed in their duties and responsibilities and should be held accountable for the time delays and irregularities on the file.
ANALYSIS AND FINDINGS
32The panel found both witnesses to give honest and credible evidence on most points. With a few exceptions outlined below, the Tribunal accepts the majority of the factual evidence given by both parties. However, in terms of opinion evidence the Tribunal finds that Mr. Delay is the only witness qualified as an expert in municipal drains.
33The Tribunal appreciates that Mr. Van Miltenburg is not an average Appellant. His evidence and references were very detailed. He has significant experience in dealing with municipal drains having been involved in many over the years. However, in terms of technical information regarding drain design, why it is necessary, and the assessment costs connected with that drain design, we accept the opinion evidence only of Mr. Delay. His expert qualifications were conceded by the Applicant at the outset of the hearing. Regardless, the Tribunal has reviewed the Appellant’s Curriculum Vitae and agrees that he has significant experience and expertise in the area of municipal drains. However, in relation to the engineered berm and Branch C Mr. Delay’s evidence was found not to support the respective assessments.
34Mr. Van Miltenburg evidence regarding suggestions on drain design does not appropriately form part of a Section 54 appeal so it is not noted. He also provided some evidence and submissions with respect to the property assessments for Lot 4 owned by the Kemerinks. There is not a Section 54 appeal by the Kemerinks before the Tribunal so this evidence will not be considered.
35There were a few pieces of evidence presented by Mr. Van Miltenburg that were contrary to the evidence of Mr. Delay. At the beginning of Day 2 when the panel requested a recalling of Mr. Delay, the Tribunal did explain to Mr. Van Miltenburg the rule in Brown v. Dunn and gave him the opportunity to further question Mr. Delay. In some instances, he did not avail himself of that opportunity and we will not be considering his evidence on those points.
Issue
36In order to answer the ultimate question as to whether the assessments are fair and reasonable the Tribunal will organize the discussion and findings of fact under the various headings below.
1. Municipality Did not Allow Input by Landowner
37Although the Act requires an onsite meeting, the Information Meetings are not actual requirements but rather a standard of practice the Engineers follow. The Appellant spoke to the engineer at the Information Meeting No. 1 on August 22, 2019, and again at an Information Meeting No. 2 that had been rescheduled because of the pandemic and took place on August 25, 2020.
38Mr. Van Miltenburg points to the initial failure of Council to allow him to speak at the July 20, 2021, council meeting. This was rectified by allowing him to make a fifteen minute presentation on August 10, 2021. He feels he was cut off, but the Tribunal finds fifteen minutes is a reasonable amount of time to allow for presentation at a council meeting.
39The Appellant does not agree with the ultimate decisions and assessments but that is not the same as not being given the opportunity to be heard. The Tribunal finds that they were given the opportunity to be heard at the original onsite meeting, the two information meetings and the Council meeting. The Tribunal finds no procedural fairness issues in this process.
2. Excessive Time Delays and Non Compliance with the Drainage Act and Increased Costs
40The Defendant raised several issues with excessive time delays and non-compliance with time requirements set out in the Drainage Act. He specifically referred to Section 5 and Section 39 of the Drainage Act.
41The timelines provided by both witnesses were consistent. The only difference is, Mr. Delay explained that the April 30, 2019, was retroactively treated as the onsite meeting for the Section4 petition that was not actually filed until May 2, 2019 (and accepted by council until a year later on May 5, 2020). This is reasonable as the extension of the drain was not a new issue that came up for the first time on May 2, 2019, when the petition was filed. The road crossing was discussed at the onsite meeting, and that was what initially started the drain project so there is nothing inappropriate about the treating of the April 30, 2019, onsite meeting as the mandatory meeting for both the Section 78 and the Section 4. At the time the request for drainage was made in March of 2019, the engineer had not been appointed, the previous drain reports had not been reviewed in detail to know that it would require a Section 4. The engineer also testified that it is not uncommon that a drain project starts as a Section 78 and expands to a Section 4.
42The Tribunal find the Appellant’s concern with Section 5 is not warranted. Although it is unfortunate it took the council a full year to accept his Section4 petition for an extension of the Drain under Hensall Road, it did not slow work down. The matter was already being considered as a Section 78 improvement to the Drain and work was continuing by the engineering firm during this time period. Furthermore, that Section provides a venue for petitioners to appeal to the Tribunal if they do not receive such a response and there is no evidence before the Tribunal that any such appeal took place or that any concern was raised with these timelines as they were unfolding.
43The start date for the one year time frame for completion of the Report, would have commenced on April 11, 2019. Contrary to the Appellants assertion that this all happened before the pandemic, the Tribunal notes that the COVID 19 pandemic started in Canada in March of 2020. As such there was approximately three weeks to one month at the end of the year period that fell during the pandemic.
44Section 39 of the Act provides a venue for the Council to give the Engineer thirty days notice to provide the Report if it has not been provided within a year after the engineer’s appointment. There is no evidence before the Tribunal that Council gave the engineer the thirty days notice set out in paragraph 39(2) of the Act. Without such notice there is no ramifications for the engineer. That is a decision for Council as to whether they proceed with such notice and is not reviewable by this Tribunal. It is beyond the scope of a Section 54 Appeal so it will not be considered further.
45The Appellant raised concerns about the five month delay from the cancellation of the second information meeting to the rescheduled meeting on August 25, 2021. Given the various and changing government restrictions and unusual conditions of the pandemic that were occurring between the cancelled meeting on March 27, 2020, and the rescheduled meeting on August 25, 2020, the Tribunal finds no issue or excessive delay with the meeting being rescheduled five months later.
46The Tribunal acknowledged there are costs increases from the preliminary to the final report. However, the Tribunal can only consider the final assessments. The Tribunal would also comment that increases are typical as the process unfolds. The Tribunal also notes there has been significant inflationary increases but an increase of 33 per cent from the first report to final report seems reasonable. Although allowances are not being considered by this Tribunal, it is noted that the land values have increased, and this is reflected in the allowances given.
3. What initiated the project and the wrong form
47Mr. Delay was clear in his evidence that from his review of the 1967 and 1918 Drains, the pipe crossing at Hensall Road was not a municipal drain. There was no evidence to indicate when Mr. Delay became aware of this but given his appointment was on April 11, 2019, it is reasonable he would not have been aware of this until the time of the April 30 onsite meeting.
48There was no additional delay or procedural fairness issue with the Appellant having been provided the wrong form. The Appellant did not testify as to exactly what information he gave the municipal employee who accepted his initial drainage request paperwork. Nor is it reasonable to expect that the particular employee assisting him would have been aware the outlet he was seeking improvements on was not a municipal drain. Mr. Delay indicated he reviewed all previous reports in making that determination. Such reports would not necessarily have been readily available to the municipal staff assisting the appellant when he first completed that form.
49Mr. Van Miltenburg testified that there was reference to the pipe crossing at Hensall Road in the 1967 Drain By-law. An acknowledgment of a pipe does not make it a municipal drain. There was no evidence to refute Mr. Delay’s testimony that it was not a municipal drain. The Tribunal accepts that this pipe crossing at Hensall Road was not part of a municipal drain.
50Although it took Council a year to accept the new petition, the Tribunal finds this caused no further delay as the work with respect to the Section 78 drain, and all the engineer’s meetings, inspections and work on the report continued during this time period. Mr. Van Miltenburg was upset that he could not withdraw his Section 4 without there being significant costs to him.
51The panel notes that the Drain Improvement was initiated under Section 78 of the Act, which could have proceeded without the petition under Section 4 to extend the Drain across Hensall Road. Withdrawing from the petition would have ended the process to extend the drain across Hensall Road and the Act does provide for any related engineering costs to be charged to the petitioner(s). Regardless the appellant did not withdraw the petition.
4. The Existing Drain Condition
52The Appellant mentioned several times in his evidence that the Burnside package from August of 2020 was more accurate than the final report. He pointed out several observations by Mr. Delay noted in the report which in his opinion were wrong. However, some are very minor in nature.
53In his report, Mr. Delay notes that several of the properties have private drainage but are not systematically tiled. In his evidence he indicated Lot 5 was systematically tiled and had adequate drainage. It not as though the report denied the entire existence of private drainage systems, but the panel does accept there is a discrepancy between the report and Mr. Delay’s evidence. However, this was not put to Mr. Delay but it does not matter as both Mr. Delay and Mr. Van Miltenburg testified that Lot 5 is systematically tiled and the panel accepts that.
54Mr. Van Miltenburg also pointed out another inaccuracy with respect to what type of agriculture was taking place in the field close to the open stream. He did not put this specific inaccuracy to Mr. Delay. The panel accepts Mr. Van Miltenburg’s evidence regarding the type of crop next to the open stream as he was actively farming the property, he would be most familiar with the type of crop in that location.
55The panel accepts the overall evidence of Mr. Delay that the existing tile systems could be improved in the adjoining lands in the future which would increase the flows and the required capacity of the drain.
56Given that Mr. Delay clearly testified that the final report was fair and appropriate, the idea that this earlier information package/report was more accurate should have been put to him. Although this evidence related to the inaccuracies was admitted, to give it much weight would violate the rule in Brown v. Dunn. As such, the portion of the evidence regarding the inaccuracies will be given little to no weight.
57One inaccuracy that was put to Mr. Delay was regarding the presence of a one meter riparian buffer on the Appellant’s property. Although Mr. Delay had previously stated all the properties were farming right up to the open channel, he admitted a riparian buffer sounded vaguely familiar so could be possible. However, Mr. Van Miltenburg never actually gave sworn testimony on this point. It is acknowledged by the Tribunal that regardless of the current practice by some of the open drain adjoining land owners to maintain a riparian buffer strip, it needs to be incorporated in the engineer's report to be a requirement and component of the Geiger Drain.
5. The Depth of the Drain because of the Gas Line
58The Appellant does not believe the deepened drain is needed by land owners. He feels Enbridge should lower their gas line by 8 inches rather than lowering the drain. The depth of laterals as recommended by Publication is different than what may be required by the general topography and the conflicts with grade or infrastructure. The engineer clearly explained that the costs connected to this conflict with the Enbridge gas line was assessed to the utility. The Appellant suggested the utility company move their gas line and that may be more cost effective.
59This is a Section 54 appeal on assessments not a Section 48 where we may consider the nature of the drain. As the costs of this conflict are assessed back to the utility and any changes to the Drain design are not part of a Section 54 appeal, this will not be considered further.
6. The Engineered Berm and Riparian Strip
60The Engineered Berm specific benefit of $10,650 is not as excessive as the Appellant originally thought. However, he still takes the position it is unnecessary as there is no drainage issue there and the berm will now cause some temporary ponding after storm events.
61In cross examination of Mr. Delay, the Appellant suggested that the soil erosion noted by Mr. Delay at the property line of Lot 4 and 5 was caused by a broken tile and not a drainage issue and Mr. Delay admitted that sounded vaguely familiar. The Appellant testified that he disagrees with soil erosion discussion in the final report. He asked that if this was such a large issue why was it not included in the report from August of 2020? He mentioned that in the 17 years they have been involved with this farm (owned it for 5 years but previously farmed it for 12) they have never seen significant soil erosion. He gave testimony that there was a broken tile at Station 0 +328 which was repaired at the time of the camera inspection and maintenance should not be considered soil erosion. This broken tile was confirmed in the letter from Mr. Kemerink filed as an exhibit.
62As the engineer’s evidence on this point was not clear and Mr. Van MIltenburg gave clear and detailed evidence, the Tribunal accepts that there has not been significant soil erosion on the property line between Lots 4 and 5. We also accept that the berm will now cause some temporary ponding after storm events. This evidence is consistent between Mr. Delay and Mr. Van Miltenburg.
63Although the necessity of the engineered berm is called into question, as this is only a Section 54 appeal we can only look at the assessment for the engineered berm. Given there is no significant soil erosion in this location and that the berm will cause temporary ponding, we find that there is no Specific Benefit to Lot 5 as set out in the engineer’s worksheets and it should be reduced by the full cost of $10,650 attributed to Lot 5.
64Mr. Van Miltenburg was clear in his evidence that Lot 5 has a riparian strip of one meter along the open channel. He believes the existence of a riparian strip should be up to the property owner and is a matter of property rights. Mr. Delay had previously testified that all properties were farmed right up to the edge of the channel. The existence of a riparian strip on Lot 5 was put to Mr. Delay in cross examination and he admitted there may be one on Van Miltenburg’s property, that his memory is not perfect. The fact that Van Miltenburg Farms already has a one meter riparian strip is accepted, however, that does not make it part of the drain. If it is not part of the Drain, it is not binding on current or future land owners. Regardless, the drain design includes a larger riparian strip that has costs associated with it and this is a matter Drain design which we are not addressing in this Section 54 appeal.
7. The Engineers Net approach and Explanation
65Mr. Delay said in his direct testimony the assessments were based on individual properties. In redirect he again stated it was based on individual properties and that the properties owned by one person were not all lumped together.
66Mr. Van Miltenburg believes his properties were all lumped together as a percentage and that Todgham was not followed. He relies on a table referred to on page 6 of 6 of Mr. Delay’s summary for the court of revision, entitled Property of Summary Assessments that includes all three of his properties and break down of the percentages. This evidence does not support that Mr. Delay calculated the assessments by lumping the properties together. It is simply a summary.
67Mr. Van Miltenburg also relies on the fact that CAO Brad McRoberts and the Engineer would refer to the total amount assessed to his properties in discussions and correspondence to him. The total amounts owing for all properties may have been referred to by Brad McRoberts and Mr. Delay for convenience and because land owners typically want to know the total amount they are being assessed. References to the total amount by the CAO or the Engineer in discussions or correspondence with Mr. Van Miltenburg does not refute the testimony of Mr. Delay that the assessments were calculated for individual properties.
68The argument that the Engineer calculated the assessments by lumping all three of the Van MIltenburg Farms together and calculating a percentage based on ownership along the drain and not individual properties was not put to Mr. Delay. This assertion is in direct conflict with Mr. Delay’s testimony that he did not lump all the properties together.
69Mr. Van Miltenburg indicated he thought Mr. Delay would be called again and he could ask him about these things. At the outset of the hearing, in the opening address given by the Chair, it was clearly explained by the Tribunal and it was set out that the Engineer would go first and give his evidence and then the Appellant would be given the opportunity to cross examine. Further, at the beginning of Day 2, the Rule from Brown v. Dunn was thoroughly explained to Mr. Van Miltenburg. He was told that he must put these contrary assumptions to Mr. Delay, or he would not be allowed to put them into evidence.
70In any event, Mr. Delay did give clear direct testimony saying the properties were not all lumped together. As the author of the report and without actual evidence to the contrary, we accept his evidence that the properties were not lumped together.
8. Actual Benefit, Fairness and the Assessments Overall
71With respect to Branch A, the Appellant maintains there is zero benefit to Lot 5 and little benefit to Lot 3. The camera scope indicates the 1967 A drain is in good shape so the upstream lots including Lot 6 are getting significantly more benefit from this improvement. He believes the benefit of the channel closure in 1967 was already paid for with the 1967 Drain. Although there is some validity to that point, the new proposed drain has more capacity which is a new benefit.
72Mr. Delay testified that there is still a benefit of a larger deeper pipe that provides a benefit through quicker drainage of the lands served by the system. He also explained that, when systems are enlarged there is less surface water and better control of sub surface and surface water. If you are downstream of a piped drain that is where your benefit is coming from, you are putting in a bigger drain that will last longer and convey more water. The Tribunal accepts there is benefit to Lot 3 and 5.
73Mr. Delay is the only witness we heard from who is qualified to give an opinion on the assessments. He testified that he prepared his assessment based on the modified Todgham Method used by Burnsides, and he outlined this modified method. He explained the consultation process with land owners and other agencies.
74He explained there were some progressive features of the drain but nothing unusual. Other than the engineered berm, he explained the additional structures satisfactorily and why they are needed and the benefit they convey. During cross examinations he explained in detail the benefit/outlet split for the properties. After cross examination, he maintained that in his opinion the assessments were fair and appropriate.
75The assessment with respect to Branch A of the drain is accepted with the exception of the engineered berm. However, the Tribunal has concerns with respect the rational for the as- sessments on Branch C of the drain. When Mr. Delay was cross examined with respect to the fairness of the Lot 5 Branch C assessments his answer included, they are charged a bene- fit and outlet for Branch C which they arguably won’t use but that the allowances in the Drainage Act are an offsetting mechanism. The Tribunal disagrees with this approach. The assessment for benefit and outlet should be calculated in an equitable manner and should not be impacted by the allowances. They are separate considerations.
76In regards to Branch C, Mr. Van Miltenburg testified that Lot 5 receives no benefit. With Re- spect to Branch C, Mr. Van Miltenburg has testified the Appellant receives no benefit and has no need for Branch C because Lot 5 (south of Hensall Road) has lateral drains in place provid- ing adequate drainage.
77Mr. Delay’s testimony that Van Miltenburg’s arguably won’t use Branch C does call into ques- tion the benefit to Lot 5. Although the panel was unable to confirm Mr. Van Miltenburg’s specific computations on the actual amount of benefit charged, some of these calculations were put to Mr. Delay in cross examination questions, and Mr. Delay did not state these numbers were incorrect. Considering all testimony and cross examination on Branch C, the Tribunal finds the allowances should not have been a factor in the assessment calculations.
78The panel believes that Branch C does provide some benefit to Lot 5 through the improved control of upstream surface and subsurface water. This is set out in the engineer’s work- sheets as a Specific Benefit described as “protection” in the amount of $2,580. The balance of the benefit assessment in the amount of $3,300 is found by the panel to be unjustified considering the presence of Branch A. Considering the assessment schedule indicates that there is 5.13 ha of land Affected Area on Lot 5, and there was no evidence presented to chal- lenge this, or any evidence relative to the topography of this area, the panel finds no reason to adjust the outlet assessment for Lot 5 on Branch C. In summary the panel finds that the Benefit Assessment for Lot 5 on Branch C should be reduced by $3,300.00
79Excluding the assessment for the engineered berm and the Branch C assessment discussed above, the Tribunal finds the rest of the assessments set out in the Engineer’s Report are fair and reasonable. They are in compliance with the Drainage Act and do not require any other alterations.
9. Costs
80The Engineer’s Report was completed on May 31, 2021. This was a few weeks more than the one year time period from Council’s acceptance of the Section 4 petition on May 5, 2020. However, as already discussed above, the Covid pandemic started in Ontario in mid-March, 2020. At that time there was much uncertainty and business shutdowns. A several week delay during this time period are absolutely reasonable.
81The delays involved are not excessive and in fact are typical and perhaps even a little faster than many other municipal drain time periods the Tribunal members have seen. There may have been some iterations on the design by the Engineer but nothing that has significantly impacted on the process or any delays. As any minor delays and covid related delays will not result in an order of costs against the Respondent as there has been nothing out of the ordinary and suggestive of deviating from the normal cost orders as set out in the Act.
82In this process there is often technical support staff or a junior engineer who has assisted. Mr. Delay testified that the Municipality was not charged for Ms. Connell’s learning time. During this process she became a Professional Engineer. The Appellant appears to be suggesting there is something nefarious about the delays and they may have been intentional until Natalie Connell was a registered engineer so her time could be charged. This suggestion was not put to Mr. Delay, he was not given the opportunity to comment and there was nothing heard in evidence to support this assertion.
83There were also issues raised about the costs of having a lawyer and the Engineer at the Tribunal. The practice of hiring a lawyer for the Tribunal appeal is not a requirement but not something that is going to prevent the normal cost orders. The involvement of counsel generally helps streamline the process and make for a more efficient hearing. The responsible engineer has to attend the appeal to provide evidence regarding their report unless the appeal was uncontested by the Municipality. The suggestion that the Engineer’s presence is an unnecessary cost is not accepted. The Tribunal has not heard any evidence to support the Applicant’s argument that these costs should not be added to the overall cost of the Geiger Municipal Drain.
ORDERS OF THE TRIBUNAL
84The Tribunal makes the following orders:
The appeal by Van Miltenburg Farms Ltd under Section 54 of the Drainage Act is allowed in part;
The Benefit Assessment for Branch A for Lot 5 shall be reduced by $10,650 which is the Spe- cific Benefit Assessment for the engineered berm;
The additional $ 10,650.00 from removal of the Specific Benefit assessment for the engi- neered berm shall be assessed pro rata to all the lands and roads upstream of Van Milten- burg Farms Ltd, Lot 5, property;
The Lot 5 Benefit Assessment with respect to Branch C shall be reduced by $3,300 resulting in a total assessment of $5,430 ($2,280 Specific Benefit and $2,850 Outlet Assessment);
The additional $3,300.00 from the reduction of the Branch C Assessment shall be assessed pro rata to all the lands and roads upstream of Van Miltenburg Farms Ltd., Lot 5 property that outlet to or are served by Branch C ;
The Engineers Report shall be changed accordingly on:
a. Appendix D1 Branch A, to show the reduction to Lot 5, Van Miltenburg Farms Ltd Roll 23-008-00;
b. Appendix D3 Branch C, to show the reduction to Lot 5, Van Miltenburg Farms Ltd Roll 23-008-00;
c. Appendix D1 and D3 shall be revised to show the increased assessment from the pro- rata distribution of the assessments, resulting from the reduction of assessments to Lot 5
d. Appendix D4 shall be revised accordingly
e. The titles of Tables D5, D6 and D7 in Appendix D shall be revised to Assessment for Maintenance
The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs may include the Engineer’s fees and expenses for attending and participating in the appeal; and
There shall be no other Order as to costs and all parties are responsible for their own costs.
Released: February 22, 2023