Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

2023 ONAFRAAT 24 FILE NO.: 007Colborne23 DATE: 2023/12/22

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 by Jack Hellinga under Section 48, and three (3) Appeals by Port Colborne Quarries Inc. under Section 54 of the Drainage Act, with respect to the Port Colborne Municipal Drain in the City of Port Colborne.

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

BETWEEN:

Jack Hellinga Port Colborne Quarries Inc. Appellants

– and –

City of Port Colborne Respondent

Self-Represented Self-Represented

Heard: October 3, 2023 and October 4, 2023 via Zoom

Before: Marc Huneault, Vice-Chair; Don McNalty, Vice-Chair; and Dave Fawcett, Member

Appearances: John MacLellan, Appellant - Port Colborne Quarries Jack Hellinga, Appellant Saima Tufail, Clerk – Port Colborne Alana Vander Veen – Drainage Superintendent, Port Colborne Paul Marsh, P. Eng – Engineer that wrote the Report Sid Vander Veen – P. Eng. – Expert Witness - Port Colborne Quarries

TRIBUNAL DECISION

Preliminary Matters

1The appeals were heard on Tuesday, October 3, and Wednesday October 4, 2023, by way of a Zoom virtual meeting.

2Prior to the hearing the Tribunal issued an Order making all landowners assessed or compensated in the Engineer’s Report parties to this hearing.

3At the beginning of the hearing, the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing. The affidavit became Exhibit #1 at the appeal hearing.

Background

4The City of Port Colborne retained Paul Marsh, P.Eng. of EWA Engineers Inc to prepare a Drainage Report under the Drainage Act R.S.O. 1990 for the Port Colborne Drain which he described as follows in his report:

5The Port Colborne Municipal Drain is located in the eastern portion of the City of Port Colborne and is organized into two distinct catchments which includes the Port Colborne Drain which serves 327.8 ha with an open channel drain having a length of 3368 metres and Port Colborne Branch Drain #1 which serves 14.8 ha with an open channel length of 823 metres. The Port Colborne Drain has an outlet into the Wignell Drain, immediately south of the Friendship Trail and extends upstream to end at the intersection of Second Concession and Babion Road. The Port Colborne Branch Drain #1 outlets into the Port Colborne Drain south of Hwy 3 and extends more or less northerly crossing Hwy 3 and then westerly ending at Snider Road.

6The Engineer’s Report includes a description of all the work for the Port Colborne Drain, as well as the proposed Branch Drain #1. The proposed improvement work on the Port Colborne Drain is in accordance with Section 78 of the Drainage Act. The Port Colborne Branch Drain #1 was prepared in accordance with Section 4 of the Drainage Act as a result of a petition by the road authority. The works are described as predominately maintenance with specific improvements identified. Some previously completed works have been incorporated into the Port Colborne Drain. The report includes plan and profile drawings which identify the proposed work.

7The proposed work on the Port Colborne Drain is to address changes in alignment of the drain resulting from adjoining land uses, specifically an ongoing quarry operation, and to return the drain to a state of good repair. Some previous maintenance work has been included in the report and was assessed as part of the cost of the works. The work on Port Colborne Branch Drain #1 also addresses some alignment changes as well as provides for improved drainage for Snider Road.

8Port Colborne Quarries Inc. submitted appeals for their land relative to the decision of the Court of Revision dated 2023/04/03 under Section 54 of the Drainage Act. Mr. John MacLellan, an employee of Port Colborne Quarries Inc. spoke on its behalf during the hearing. Port Colborne Quarries Inc. also relied upon the evidence of Sid Vander Veen, P.Eng. of Burnside Engineering.

9Mr. Jack Hellinga represented himself on his appeal pursuant to Section 48 being an objection to the Engineer’s report. He relied upon his own evidence at the hearing. He did not introduce any admissible opinion evidence at the hearing. At the hearing, it became apparent that his concerns were related to the assessments rather than the proposed work as set out in the Engineer’s Report. For the reasons set out below, the Tribunal has determined that it does not have jurisdiction to consider Mr. Hellinga’s appeal of the assessment pursuant to section 48.

The Issues

Port Colborne Quarries Inc. Appeal – section 54

10Should the impact of the quarry operations on the rate of flow into the Port Colborne Drain and the assessment on their lands be reduced by adjusting the assessment calculations relative to the runoff coefficients?

Hellinga appeal – section 48

11Does the Tribunal have authority related to his appeal under the Act, and if that is the case, is an adjustment to the assessment on his land warranted considering the appeal of Mr. Hellinga was submitted under Section 48 of the Drainage Act, and the appeal submissions relate to the assessment on his land?

Evidence of the Parties

Paul Marsh, P. Eng, prepared Engineer’s Report for City of Port Colborne

12Mr. Marsh P.Eng. was sworn in and his acknowledgement of expert duty and his CV were entered as Exhibit 2. There was no objection from the participants for Mr. Marsh to be qualified as an expert witness. As the author of the Final Engineer’s Report, Mr. Marsh stated he would be the principal witness for the City of Port Colborne on this matter. The Engineer’s Report was entered as Exhibit 3. A large document entitled Port Colborne Document Record (795 pages) was submitted as Exhibit 4.

13Mr. Marsh had prepared a Power Point presentation which he relied on for the submission of his evidence. The power point presentation entitled EWA Power Point Presentation was enter as Exhibit 5 for the hearing. The presentation of 43 slides addressed the technical details relative to the report and in particular described the difference between the computer modelling completed for the design and hydraulic capacity of the drain versus the use of runoff coefficients in the calculation of assessments.

14It was noted during the evidence in chief and cross examination that the Port Colborne Drain was designed to accommodate a 5-year return storm. Further that the cost of certain maintenance works completed previous to the preparation of the report were included in the costs distributed through the proposed assessments schedule. There were versions of the Engineer’s Report with the main body of the report being finalized as version 106, and the final assessment schedule as adjusted by the Court of Revision being Version 107 and dated March22, 2023.

15Some questions during cross examination related to the capacity of the pumps which discharge collected runoff from the quarries as well as the operation of those pumps. Further questions from the participants to the hearing related to drainage into the quarry from surrounding lands including certain road crossing culverts as well as the age and related efficiency of the pumps.

16In response to questions from the panel, Mr. Marsh described the land uses within the catchment area as well as the profile of the drain. He also described the location of the appellant’s lands and provided more detail relative to the sections of drain which have been abandoned, relocated, maintained, improved, or constructed.

17It was further stated that the original runoff coefficient used to distribute the assessments in Mr. Marsh’s report was in the order of 0.35 but this was revised after the first public meeting to consider the Report to 0.6 and later revised by the Court of Revision to 0.75 and 0.78 for the 2 quarry properties.

Alana Vander Veen, Drainage Superintendent for City of Port Colborne

18Alana Vander Veen, Drainage Superintendent for the City of Port Colborne was sworn in to provide evidence on behalf of the City. She noted that improvements and changes to the drain were initiated by the City of Port Colborne in 2002. Two engineers appointed by the City in regard to the drain failed to complete a report prior the appointment of EWA Engineering in 2018. She noted that the petition for drainage submitted by the City relative to Snider Road was required to address drainage issues along Snider Road.

During cross examination by Mr. Hellinga, Alana Vander Veen opined that the creation of Branch #1 extending to Snider Road would still be required if the quarry operation did not exist.

John MacLellan, Port Colborne Quarries

19In his opening remarks Mr. MacLellan stated he had no issue with respect to the Benefit or Special Assessments on the quarry lands but requested that the Outlet Lability Assessment be reverted to the assessment as set out in the original Engineer’s Report for Pit 2 and Pit 3. Although Mr. MacLellan represented Port Colborne Quarries, engineering evidence was presented on behalf of Port Colborne Quarries by Mr. Sid Vander Veen, P Eng.

Sid Vander Veen, P.Eng. Burnside Engineering

20Mr. Vander Veen, P.Eng., was sworn in and his acknowledgement of expert duty and his CV were entered as Exhibit 6.

21Mr. Vander Veen noted that he had prepared a report and his evidence would be a summary of that report. His report entitled Expert Opinion Report was entered as Exhibit 7 in the proceedings. Mr. Vander Veen stated that his client, Port Colborne Quarries was satisfied with the assessment on Pit 1 and further PCQ’s appeal was not about the Benefit or Special Assessments but rather regarding the Outlet Liability Assessment on Pit 2 and Pit 3. He noted that Outlet Liability Assessment is to take into account the runoff from lands “artificially caused to flow” and made some analogies between the anticipated runoff from the quarries with the runoff from a lake. He noted that some use factors of 0.05 for lakes or wetlands and again made the analogy between those land uses and the quarry. He also referenced a number of previous decisions as well as design guidelines that support his position in this regard.

22Mr. Vander Veen noted that in the EWA Engineer’s Report the runoff coefficient for the Quarries were 0.30 and 0.37 for Pit 2and 3 respectively. It appeared that after the public meeting to consider the report that the coefficient was increased to 60 for both Pits and that the Court of Revision further increased the runoff coefficient to 75 and 78 for Pit 2 and 3 respectively.

23Mr. Vander Veen acknowledged that there would be a larger volume of water discharged from the quarries due to the impervious nature of the quarry floor, but the drain design is contingent on the rate of flow and not the total volume. Further that the quarry operation really acts as an attenuation pond and limits the rate of flow downstream.

24In his summary he proposed that a runoff coefficient of 0.3 would be very conservative and appropriate.

25In response to questions from Mr. MacLellan, Mr. Vander Veen noted he had not taken into account the volume of water used by the quarries for dust control or in their operations. Further that the quarry acted like a storm water management facility and attenuated the flows into the downstream drain.

26In response to Mr. Hellinga’s cross examination, Mr. Vander Veen acknowledged that there were lands owned by the quarry which were not part of the quarry but opined that that had been taken into account in the calculations to determine assessments.

John MacLellan, Port Colborne Quarries

27After the evidence presented by Mr. Vander Veen, Mr. MacLellan noted that the pumps are only used on an as required basis and the discharge would be less than the PTTW for the quarries. Further that the pump from Pit 2 is an 8-inch discharge and the discharge pipe from Pit 3 has a 10 inch discharge.

28Mr. MacLellan further stated that Port Colborne Quarries had no objection to applying a 0.35 coefficient as used in the engineer’s report but not with the higher coefficients which the engineer was later directed to apply during the Public Meeting to consider the engineer’s report and later by the Court of Revision.

Jack Hellinga,

29Mr. Hellinga noted in his opening remarks that as the Port Colborne Quarries operation was interrupting the drainage in the area that the quarry should be responsible for the cost of the realignments and referenced the “C” factors used in the assessment calculations.

30Mr. Hellinga was affirmed, and his appeal documents were entered as Exhibit 8 to the proceedings. Mr. Hellinga referenced the Drainage Act which he understood required lands to be only assessed for downstream work. Based on his understanding of the report for the Port Colborne Drain he felt his land was being charged for work on the Port Colborne Drain which is upstream of his land.

31There was some sensitivity during the hearing around Mr. Hellinga’s evidence encroaching into expert evidence and the panel provided some direction in this regard.

32Some of his appeal submission as set out in Exhibit 8 encroached on engineering expert evidence. In addition, Mr. Hellinga had not put these submissions to either Mr. Vander Veen or Mr. Marsh in cross examination.

33Mr. Hellinga stated that he felt that the cost of the extension of Branch 1 to Snider Road should be assessed to Port Colborne Quarries. He provided no evidence in respect to the benefit to be derived from the drainage works, or whether the drainage works should be modified or that the compensation or allowances provided by Mr. Marsh were either inadequate or excessive.

Closing Submissions

Jack Hellinga

34Mr. Hellinga stated that the cost of the extension of the Port Colborne to the 2^nd Concession and the cost of maintaining the drain should be assessed to PCQ. Accordingly, he should not be assessed for work completed upstream of his lands on the Port Colborne Drain or on the Port Colborne Drain Branch #1. He argued that there should be a separate assessment schedule for the portion of the Port Colborne Drain Upstream of Branch 1 and the assessment on the quarry lands should be based on the limit provided in the Port Colborne Quarries’ PTTW

John MacLellan

35Mr. MacLellan noted that the Municipality petitioned for improved drainage on Snider Road and consequently should pay for the extension of Branch 1 to Snider Road. He argued that if the quarry lands were still agricultural land that those lands would produce larger flows than produced by the existing quarries. In support of this position, he noted that the pumps had hardly run in the weeks prior to the hearing. Finally, he further noted that Port Colborne Quarries are satisfied with the coefficients used in the initial Engineer’s report.

Paul Marsh, P Eng.

36Mr. Marsh felt that the assessment schedule was a fair way to distribute the cost of the proposed work. He stated that the assessment schedule was revised as a result of direction at the Public Meeting to Consider the Report and by the Court of Revision. More particularly, the “C” factors were used only to distribute the costs in the assessment calculations and not the designed capacity of the drain. He stated that there is not much new physical work being proposed but that there were considerable engineering and administrative fees to distribute and in respect to of the proposed physical work, Port Colborne Quarries and the City are paying for that work. He requested that a reference to stations which arose during the hearing be adjusted to 1+940 to 2+550 for the completed maintenance work.

Alana Vander Veen

37Ms. Vander Veen noted that the project has taken a long time and dealt with by 3 engineers, 3 drainage superintendents and 7 directors at the City, and noted that there are 3 drains in this area being the Michener Drain, the Port Colborne Drain and the Wignell Drain. The City has yet to receive a report for the Wignell Drain.

Analysis and Findings

38The Tribunal finds that the Appellants who were not represented by legal counsel, made a strong effort to follow the direction of the panel with respect to the process required for the hearing and gave credible testimony.

Hellinga appeal

39The appeal of Jack Hellinga was submitted under Section 48 of the Act

40The Tribunal makes reference to Section 48 which states that such an appeal is limited to an appellant being dissatisfied with the report of the engineer on the grounds that,

a) The benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

b) The drainage works should be modified on grounds to be stated;

c) The compensation or allowances provided by the engineer are inadequate or excessive;

d) The engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed.

41It is noted that a significant portion of the total cost assessed relate to engineering and administrative costs related to work undertaken by previously appointed engineers who were unable to complete a final engineers report as well as the more current work by Mr. Marsh’s firm, EWA Engineering. The Tribunal would consider it appropriate that those costs would be distributed to the whole assessed area as per the engineer’s report. Through direct questioning it became apparent that the total cost of construction for the entire length of the Port Colborne Drain were also charged to the entire assessed/drainage area without regard to the portion of the drain used by the assessed properties

42Section 23(1) of the Drainage Act sets out the criteria for assessment of liability in respect to Outlet liability. The Tribunal notes that lands or roads may be assessed for drainage works used as an outlet or where an improved outlet is provided, directly or indirectly. The Tribunal’s interpretation is that the work is downstream of the land being assessed.

43Mr. Jack Hellinga raised a credible concern in his testimony that his property was assessed for work undertaken or proposed upstream of the point where runoff from his property would discharge into the drain. Mr. Hellinga’s submissions related to his concern on assessment, but his appeal was clearly submitted as a Section 48 appeal. Although the Tribunal considered Mr. Hellinga’s evidence and testimony in this regard, the Tribunal has no jurisdiction based on an analysis of section 48 of the Act.

44The Tribunal applies the test as set out in Hoy Drain (1998) where the Tribunal stated:

“The Tribunal recognizes that it has wide powers under Section 51 but does not think that those powers would allow it to completely ignore the flow of the Act. The Act requires a party upset by the division of assessment of a proposed project to first appeal to the Court of Revision. Those parties that appeal to the Court of Revision, if still dissatisfied, can appeal to the Tribunal.”

45Mr. Hellinga appealed the proposed work and not the assessment. It is unfortunate as this Tribunal does not have jurisdiction to consider an appeal of the assessment as that would be under section 54.

46The Tribunal heard from Mr. Marsh during the hearing that lands assessed for future maintenance under this report would be only assessed for work situated downstream and the Tribunal expects this to continue to be the case. Accordingly, Mr. Hellinga should not be penalized in this respect in any event.

Port Colborne Quarries Inc. appeal

47The Port Colborne Quarries appeal was submitted under Section 54 of the Act. Mr. John MacLellan stated that they were satisfied with the original runoff coefficient used by Mr. Marsh to calculate the assessment for the quarry’s lands. The appeal from Port Colborne Quarries related to the revised coefficient directed by Council and the Court of Revision which increased their assessment. Their appeal under section 54 was properly an appeal of the decision of the Court of Revision unlike Mr. Hellinga’s appeal.

48Port Colborne Quarries relied on their expert witness, Mr. Sid Vander Veen, P.Eng.. Mr. Vander Veen submitted a detailed analysis of runoff coefficients which included references to various design guidelines as well as past decisions.

49The Tribunal notes that the original runoff coefficient used by Mr. Marsh is only slightly higher than that proposed by Mr. Vander Veen. There is no evidence that the Court of Revision had any professional engineering input to support their decision to further increase the runoff coefficients for the quarry lands. Based upon the evidence and submissions the Tribunal would rely on the expertise of Mr. Marsh and Mr. Vander Veen and support the runoff coefficients for the quarry lands as originally set out in Mr. Marsh’s report.

50During the submissions it was determined that a correction was required in the report relative to the Stations for the maintenance work previously completed. There was agreement by all parties in this regard. The Station limits for this maintenance work should be 1+940 to 2+550.

51The Tribunal notes that some previously completed construction and maintenance work were included in the cost of the drain. Although there is provision in Section 31, (Allowance for Existing Drains, of the Act) for incorporation of the cost of previously constructed drains into the cost of the works, it is noted that no such allowances were provided. It is unclear what provision, if any, were relied on to include the cost of these previously completed works. In any event, all parties to the hearing were agreeable to that work being included and there was no objection or appeal in this regard. The tribunal will give no further consideration to this specific issue.

Orders of the Tribunal

52The appeal of Jack Hellinga under Section 48 is dismissed.

53The Engineer will recalculate the assessments for all the assessed lands using the runoff coefficients for the quarry lands as per the original engineer’s report dated April 16, 2021.

54For any future maintenance work completed under this report and associated by-law, lands and roads will only be assessed for work downstream.

55The Station reference for the previously completed maintenance work shall be revised to read 1+940 to 2+550

56There shall be no other order as to costs and all parties are responsible for their own costs.

Marc Huneault Vice-Chair