Agriculture, Food and Rural Affairs Appeal Tribunal
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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Lisa D. Larwill, David and Bronwyn Harper, Shannon and Jeff Storie, Jacqueline H. Leger, Marc MacDonald, Dennis and Patricia Boyer, Carol and Robert MacDonald, Ronald and Constance Whitmore, Wanda Bracken, Sandra Lueck and Scott Carrigan, and Phyllis Begg Cranberry Creek Drain (RE) City of Ottawa
Cranberry Creek Drain (RE) 2024 AFRAAT 22
STATUTE:
HEARING:
February 15, 16, 20, 21, 22, 23 and 26, 2024
DATE OF DECISION:
December 11, 2024
011Cranberry22
NEUTRAL CITATION:
2024 ONAFRAAT 22
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED;
AND IN THE MATTER OF Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Lisa D. Larwill, David and Bronwyn Harper, Shannon and Jeff Storie, Jacqueline H. Leger, Marc MacDonald, Dennis and Patricia Boyer, Carol and Robert MacDonald, Ronald and Constance Whitmore, Wanda Bracken, Sandra Lueck and Scott Carrigan, and Phyllis Begg, under Section 54 of the Drainage Act, with respect to the Cranberry Creek Drain in the City of Ottawa;
AND IN THE MATTER OF An electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure;
BETWEEN:
Lisa D. Larwill, David and Bronwyn Harper, Shannon and Jeff Storie, Jacqueline H. Leger, Marc MacDonald, Carol and Robert MacDonald, Ronald and Constance Whitmore, Wanda Bracken, Sandra Lueck, Scott Carrigan Appellants
– and –
City of Ottawa Respondent
Self-Represented
Represented by Paul Courey and Eric Florjancic Heard: February 15, 16, 20, 21, 22, 23 and 26, 2024 via video conference
Before: Christine Greydanus, Vice-Chair; Andrew McBride, Vice-Chair; and Katie De Block, Vice-Chair.
Appearances:
Andrew J. Robinson, P. Eng., Engineer who prepared the Report Lorne Franklin, L.E.T., C.E.T. Engineering Technologist who assisted with the Report Paul Courey, Counsel for the Respondent, City of Ottawa Eric Florjancic, Counsel for the Respondent, City of Ottawa Constance Whitmore, Appellant Lisa D. Larwill, Appellant Bronwyn Harper, Appellant Shannon Storie, Appellant Jacqueline H. Leger, Appellant Marc MacDonald, Appellant Carol MacDonald, Appellant Wanda Bracken, Appellant Phyllis Begg, Affected Landowner Stephen Wendt, Affected Landowner Owen Severn, Affected Landowner Pieter Leenhouts, Affected Landowner Denis Boyer, Affected Landowner
DECISION OF THE TRIBUNAL
Preliminary Matters
1This matter was heard virtually on February 15, 16, 20, 21, 22, 23 & 26, 2024.
2Prior to the beginning of this hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report, participants to the appeal. The Municipality filed an Affidavit of Service as proof that all parties and participants had been served with the Notice of the Hearing. This affidavit became Exhibit 1 at the appeal.
3A motion to strike pleadings was brought by the City of Ottawa and heard Feb 15, 2024 prior to the commencement of the hearing. The following order was made by the Tribunal:
- The appeal of each Appellant shall be limited to an appeal on their property, without prejudice to each appellant’s ability to lead evidence that other lands have not been properly assessed, and that;
- The pleadings regarding the complexity of the Engineer’s report; the Engineer’s Report inconsistencies with the previous Tribunal decision pertaining to the Cranberry Creek Municipal Drain; and design issues, such as, the Pump and Dyke design, and hereby struck and dismissed.
- The pleadings alleging that the 2022 Report is inconsistent with the 1969 Engineering Report, pleadings alleging negligence, pleadings alleging that 2022 Report is unfair, are hereby struck and dismissed.
- The Tribunal will reserve the issue of costs of this motion to the conclusion of the hearing.
- The remainder of the Appellants’ pleadings shall stand, and any submissions with respect to relevancy of evidence led by the Appellants relating to these pleadings shall be addressed by the Tribunal as may be required throughout the course of the hearing.
Background
4The Engineer’s Report dated June 2, 2022 (the “2022 Report”) and signed by Mr. A. J. Robinson, P. Eng. (the “Engineer”) for the Cranberry Creek Municipal Drain (the “Drain”) was initiated by the City of Ottawa in order to update the assessment schedules for maintenance and repair to account for changes of ownership, severances, land use changes and modifications to drainage area boundaries. The report was completed in accordance with Section 76 of the Drainage Act (“the Act”).
5Robinson Consultants Inc. was appointed on September 8, 2021 by the City of Ottawa to complete an Engineer’s Report for the new Assessment Schedules for the Cranberry Creek Municipal Drain.
6There are eight appeals of the 2022 Report before the Tribunal under Section 54 of the Act.
7The Drain was originally constructed in 1895 under a report by Henry O. Wood, Eng. O.L.S. and was subsequently improved in 1953 under a report by R.F. Muckelstone, O.L.S. A major improvement to the drain was completed under the authority of By-Law No. 30-69 in accordance with the Engineer’s Report entitled “Engineer’s Report – Cranberry Creek Municipal Drain – Township of North Gower” prepared by Graham, Berman and Associates Limited, dated March 24, 1969 (“1969 Report”). Governing the Cranberry Creek Municipal Drain now primarily are the 1969 Report and By-Law No. 30-69.
8The 1969 Report included the Foster Branch and the Bruce Branch as well as providing for maintenance of the main drain. The 1969 Report also added a pump and dyke system (the “Pump and Dyke System”) to manage the water level in the Cranberry Creek during the summer (typically May through October) season when the Rideau River level were held high for navigation proposes.
9A report entitled, Engineer’s Report – Cranberry Creek Improvement – Township of North Gower dated revised September 10, 1971 (“1971 Report”) and adopted by By-Law 28-71, made improvements to the Pump and Dyke System to permit more rapid draining of the watershed during the spring and fall through the installation of two sluiceways and made a recommendation for a larger pump.
10There have been a number of investigations and reports related to improvements to the Drain over the subsequent years, including the Cranberry Creek Municipal Drain Engineer’s Report dated December 20, 2017 that was set aside by this Tribunal in 2020, Cranberry Creek Municipal Drain (RE) City of Ottawa, 2020 ONAFRAAT 9 (the “Tribunal 2020 Decision”).
Issues
11The Tribunal was asked to consider the following issues by the Appellants:
a. Are the Land Use Factors (“LUFs”) used in the 2022 Report correct or should they be modified to reflect those in the Tribunal 2020 Decision?
b. Can the Pump and Dyke System properly be included in the 2022 Report?
c. Are the assessments on the properties of the individual Appellants too high?
d. Are there assessments on the properties in the 2022 Report that are too low?
e. Are all the lands and roads in the drainage area assessed?
Respondent, City of Ottawa, Engineers’ presentation of the Report
12Andrew Robinson, P. Eng. and Lorne Franklin, L.E.T., C.E.T. presented the 2022 Report. Prior to presenting the 2022 Report both Mr. Robinson and Mr. Franklin were sworn in as expert witnesses.
13Robinson Consultants Inc. was appointed by the City of Ottawa on September 8, 2021 to complete an Engineer’s Report for a new assessment schedule for the Cranberry Creek Municipal Drain pursuant to Section 76 of the Act. The new assessment schedule was required to address the changes in land ownership, severances, land use and modifications to the drainage area boundary.
14Mr. Robinson referred to Section 76 of the Act and articulated that under this section of the Act they only have jurisdiction to deal with assessments and to update the assessment schedules so that the City can fulfill its obligation to do maintenance and assess it in a way that is fair and equitable to all of the property owners.
15Changes to the drainage area boundary of the Drain were made to conform to the decisions of the Court of Revision (“COR”). Mr. Franklin noted that pursuant to the Act, the total estimated cost is to be assessed against the affected lands and roads under the category of benefit under section 22, outlet liability under section 23, injuring liability under section 23, special benefit under section 24 and increased costs to public utilities and road authorities under section 26. The 2022 Report had no assessment for injuring liability.
16Mr. Franklin noted that where lands located immediately adjacent to the Drain are determined to receive Benefit, a Benefit assessment is only charged against properties where work is being completed. Outlet is assessed to each parcel of land that lies within the drainage basin and is upstream of the location where construction or maintenance is being undertaken. Such land pays a portion of the cost of the construction or maintenance through outlet assessment. Assessment for outlet is based on location, area and rate of flow.
17Mr. Franklin stated that “Special Benefit” means any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works. A Special Benefit was directed to be assessed to the City of Ottawa by the COR on September 28, 2022.
18Mr. Franklin explained that the assessments in the Report were calculated using factors for land use, sub-sections and distance. Consideration was given to previous concerns, considerations and recommendations from landowners and prior CORs and the assessments include drainage area adjustments, Land Use Factors (“LUF”), benefit and outlet distribution.
19The s. 76 revised schedule of assessment divided the estimated $26,500 Engineering costs proportionally with $6,625 or 25% to each of 3 sections and 25% to the Pump and Dyke System and the COR adjustments to the City of Ottawa. The sections were further broken down as follows:
a. Section 1 (10% benefit / 90% outlet) $6,605
b. Section 2 (15% benefit / 85% outlet) $6,425
c. Section 3 (25% benefit / 75% outlet) $6,425
d. COR Special Benefit to the City of Ottawa $460
(S1 - $20, S2 - $200, S3 - $40, PS - $200).
20Assessments for each Section were further divided into four bands based on the distance of the assessed land from the Drain and assigned a “Distance Factor”. The Distance Factor takes into account the relative amount of water that will enter the drain. The four bands in each section are incremental with the first being from the drain to approximately 200 meters from the drain; the seconded from 200 meters to 600 meters, the third from 600 meters to 1000 meters and the fourth beyond the 1000 meters. Each band was assigned a factor as follows band 1 - 1.0, band 2 - 0.75, band 3 - 0.60 and band 4 - 0.30.
21LUFs are included in the assessment schedule to account for the runoff from lands that are used for different purposes. The LUFs were formulated with reliance on various guidelines and principals some of which are as follows;
a. Standard best practices contained in the Technical Paper “Drainage Assessment Revisited” by E.P. Dries, P. Eng. and H.H. Todgham, 1988.
b. Ontario Ministry of Agricultural, Food and Rural Affairs, A Guide for Engineer’s Working Under the Drainage Act in Ontario, Publication 852, (King’s Printer for Ontario, 2018) at 67, Table A9-1, Examples of Adjustment Factors in the Equivalent Area Method.
These publications were used as a point of consideration for the Engineer in the general principals applied to LUFs as referenced in table A9.1 for Agriculture/ Rural, Forest and Wetlands.
22Mr. Robinson stated that the MTO Soil / Land Use Curve Numbers were used as a point of consideration for the Engineer in the general principles applied to the LUF in accordance with the "MTO Drainage Management Manual, Part 4", Design Chart 1.09, pg.25-26. Drainage and Hydrology, Section, Transportation Engineering Branch, Quality and Standards Division, 1995-1997, Ministry of Transportation.” The calculations have been developed and utilized by engineers over time and the MTO has adopted and utilizes these calculations on their projects. The design chart provided a scale of hydrologic soil groups and from this chart Mr. Franklin considered the land uses in the drainage area and assigned them a LUF.
23Mr. Franklin stated that in order to determine the areas used in the calculation of specific LUFs (Provincially Significant Wetlands (“PSW”), Non-Provincially Significant Wetlands (“NPSW”), and Forest Cover) they referred to websites that included the City of Ottawa - Official Plan, the City of Ottawa – Wetlands, Ontario GeoHub – Wetlands, Ontario GeoHub – Soil Survey Complex, the Ontario GeoHub – Forest Cover. Mr. Robinson stated that in examining the soil maps they determined the soil types and the similarity of the soils throughout the basin. The wetlands are very shallow soils that are overlying the same soils that are throughout the rest of the basin.
24Mr. Franklin stated that with engineering discretion applied, based on previous principals, numeric values were assigned to each generalized land use as follows,
a. 0.4 - designated Provincially Significant Wetlands (PSW)
b. 0.7 - mapped other, unprotected, unevaluated wetlands (NPSW)
c. 0.5 - designated, protected forests (under a Managed Forest Agreement (“MFA”))
d. 0.7 - undesignated, non-protected forests (other Forest Cover)
e. 1.0 - lands considered agricultural, rural (large lots), vacant areas.
f. 2.0 - small, non-agricultural lots (residential) that are 5 acres (2.0 hectares) or less
g. 4.0 (or higher) – land that is classified as institutional, commercial or is a road right of way.
25Mr. Franklin stated that when calculating the area of the various lands, they utilized the GIS area and not Municipal Property Assessment Corporation (“MPAC”) data as they have found that there is variation between MPAC data and GIS. Mr. Franklin stated that MPAC data was generated from the original surveys that were used to form lots and townships and concessions that were generated in the 1800’s and they weren’t always that accurate. According to Mr. Franklin, they tended to assign 100 acres to each lot in a concession whether they were 90 acres or 110 acres. He further stated that they have seen some variation in the actual land that can be measured from a plan. They used the MPAC data for the calculation of the assessment, however, for the purpose of calculating a combined LUF they used GIS.
26Using GIS, they calculated the area of each land use for a property and further calculated a weighted LUF. The “Weighted Land Use Factors” are then combined to result in a “Total Combined Land Use Factor”.
27Mr. Franklin testified that when determining PSW, they utilized the boundaries that are incorporated into the City of Ottawa and protected by Conservation Authority Legislation. NPSW are not protected by legislation and may be modified, however these areas are included in the 2022 Report in conformance with the Tribunal 2020 Decision. The areas were calculated utilizing data from GeoHub. It was the assessment of Mr. Robinson that this data provided a reasonable and accurate calculation of the NPSW areas. They noted that the GeoHub data may not reflect what is actually happening on the ground but that they rely on the City of Ottawa to change the boundaries or enact them in the City of Ottawa official plan. Therefore, they utilize only the layers that are calculated and provided by these governing agencies.
28Mr. Franklin noted that the lines for the PSW are the most stable and reasonable methodology as the areas are protected and not easily changed. NPSW can be areas that become wet over a period of time, due perhaps to a beaver dam, but with reasonable intervention could be returned to standard Agricultural/Rural lands as they do not have the same protection as PSW. Likewise, land that is altered or cleared will retain its PSW status until it is re-evaluated and its status as PSW is removed from the Official Plan.
29Mr. Robinson asserted that this approach provides stability that is necessary for calculations and that this is a reasonable and defensible policy. It was noted that none of the Appellants have any Benefit Assessment or Pump Assessment. Mr. Robinson also noted that in the document entitled “OMAFRA Factsheet, Order # 92-035, Understanding Drainage Assessments”, Sid Vander Veen wrote,
“Surface water not flowing in a natural watercourse (ie. Not having discernable bed or banks) has no right of drainage. An owner of lower land may, at his or her own choice, either allow the water from higher land to flow over it or by dams or banks, keep the water off his or her property. No owner has the right to collect such surface water by ditches or drains and discharge it on lands of another. He or she has a responsibility to take this water to a sufficient outlet, i.e., a natural watercourse or a drain constructed under the Drainage Act. ...
The assessment for outlet liability and injuring liability is based on the volume and rate of flow of the water artificially caused to flow from an owner's property. Generally, the assessment is based upon a unit value per hectarage. Owners at higher elevations on a watershed may have a higher unit charge than those owners near the outlet since the water from their land makes use of a greater length of drain. A difference may be made in the unit outlet charge due to varying types of soil or land use, or the distance to the drain....
Sometimes, an owner has an undeveloped area that he or she intends to leave in this condition. The owner may feel that he or she should not be assessed since the drain will be of no benefit. However, the property could change hands and the new owner might want to drain and develop it. It is with this in mind that the engineer must make an assessment, regardless of the present owner's intentions.
In some instances, a "special benefit assessment" may be levied against the property. This value usually represents the difference in cost between that which was originally designed and the increased level of design requested by a landowner. Examples include a closed or tile drain where open ditches would ordinarily suffice, or the construction of ponds beside the drain, or other special requests by a landowner specifically for this benefit. The authority for this liability is set out in Section 24.”
30Mr. Robinson noted that the benefit assessment for the Pump and Dyke System in the 1969 Report should have been a special benefit assessment assigned to specific lands. He quoted from the OMAFRA Factsheet, Order # 92-035, Understanding Drainage Assessments,
“The hectarage shown in the schedule for which an owner is assessed is only approximate. No survey is made to accurately establish the watershed boundary or farm areas. Any minor error in hectarage assessed is not a valid basis for appeal nor does it greatly affect the assessment. The other columns in the Schedule set forth the assessment liability for each drain and/or branch drain. These values are estimates. The final value will not be known until the construction work is finished. The assessment will then be prorated to recover the actual cost.”
Mr. Robinson noted that utilizing the Engineering costs in the schedules was done in order to demonstrate to the property owners what their relative assessments are.
31In cross-examination, when asked what remains of the Pump and Dyke System, Mr. Robinson stated that it was not relevant and outside the scope of what they had been retained to do. Mr. Robinson said that they had been retained to do a s. 76 Report under the Drainage Act and that the 1969 Report was the governing report for the Cranberry Creek Municipal Drain. The 1969 Report contained the Pump and Dyke and as such they did an assessment that included the Pump and Dyke System.
32Each of the Appellants assessments were reviewed for the hearing.
City of Ottawa submissions
33The City of Ottawa requests that this Tribunal under the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16 at section 14, dismiss this appeal by the Appellants, for the reasons set out below.
34The Tribunal has routinely held that expert evidence provided by a qualified expert before the Tribunal is acceptable evidence. The Tribunal has held that where an Engineering Report pursuant to section 76 of the Drainage Act, R.S.O. 1990, c. D.17, has been conducted by a qualified expert witness it has the presumption of being valid and reliable evidence.
35Section 76 of the Drainage Act, R.S.O. 1990, c. D.17, addresses the use of Engineering Reports. Specifically, section 76(4) states, “Any owner of land assessed for maintenance or repair may appeal from the assessment in the report on the grounds and in the manner provided by section 52 in the case of the construction of the drainage works.”
36Section 54(1) of the Drainage Act, sets out the route to appeal to the Tribunal.
37Section 52(1) of the Act establishes the test to appeal to the Tribunal. Section 52(1) states that an owner of land assessed for the drainage works may appeal to the court of revision on any of the following grounds:
a. Any land or road has been assessed an amount that is too high or too low;
b. Any land or road that should have been assessed has not been assessed;
c. Due consideration has not been given to the use being made of the land.
38The City of Ottawa submitted that the Tribunal heard only one expert who provided an opinion with respect to the assessments at issue. The Tribunal must consider the qualified opinion evidence of the Engineer and, when there are discrepancies or challenges, consider the weight and rationale provided by the Engineer in the methodology and manner in the interpretation and application of the Section 76 Report.
39In support of this argument the City of Ottawa directed the Tribunal to multiple precedents as follows;
a. Geiger Municipal Drain, 2023 ONAFRAAT 2 , at paras. 32 and 33.
“In terms of opinion evidence, the Tribunal finds that the Engineer is the only witness qualified as an expert in municipal drains.... in terms of technical information regarding drain design, why it is necessary, and the assessment costs connected with that drain design, ... (the Tribunal) accepts the opinion evidence only of the (Engineer). His expert qualifications were conceded by the Applicant at the outset of the hearing.”
b. McClure Drain - Amended (RE), 2016 ONAFRAAT 20 at page 12, para. 4.
“It is the professional responsibility of the engineer to consider all aspects of the drainage works before developing the most appropriate cost distribution that is fair and equitable based on all of the information available.”
c. Easton Drain (RE), 1998 ONAFRAAT 18 at page 4, paras. 1, 3.
“None of the assessed ratepayers suggested there was an error in the general methodology the engineer used to calculate his assessments. ... The Tribunal examined the assessment schedule and the calculations of the engineer and concluded that the assessments as calculated by the engineer are fair and equitable in this case.”
d. MacLaren Municipal Drain (RE), 1997 ONAFRAAT 43 at page 10,
“The methodology the engineer used in arriving at the assessment in the report is not in accordance with prevailing practices. Nevertheless, when all factors are considered, the assessments, as modified by the Court of Revision, are within the appropriate range for this project. The desire of all the parties to keep the costs down is valid. The costs of referring the Report back outweigh the advantages to be gained by the project or any assessed ratepayer.”
e. Klijn Drain – 2002 (RE), 2002 ONAFRAAT 8 at page 7, para. 7.
“While the Tribunal does not agree with every facet of the engineer’s methodology the Tribunal finds the overall results are equitable and justified.”
f. Pannabecker v. West Wawanosh (Town), 2000 ONDR 2 at page 7 para 2.
“It is equally important to note that in the current Drainage Act the decision as to what lands are the lands “requiring drainage” is left solely to the appointed Drainage Engineer who is available to give a professional opinion. In previous legislation that decision was left to the municipal council which no doubt gave expression to a lay opinion, possibly influenced by political considerations. The current Drainage Act, which imposes on the Drainage Engineer the duty to provide independent, unbiased professional opinions, represents a positive step forward and in many cases, the Drainage Engineer gives expression to the needs of minority landowners.”
40In summary, the Respondent City of Ottawa argued that the Expert Report, when standing alone without any contrary Expert opinion to challenge it, must remain untouched, unless the Engineer makes changes or recommendations to the Tribunal.
41The Respondent’s position is that the Engineer’s evidence should be accepted in full, the Report should be confirmed as advised by the Engineer adopting the most recent Assessment Schedules introduced into evidence, and the Appeals dismissed.
Appellant Evidence and Arguments
Ronald and Constance Whitmore, Appellant – Property ID # 240
42Ronald and Constance Whitmore own and reside on the property identified as #240 in the 2022 Report. The property is 10.05 hectares (“ha”) in size with 5.82 ha in the subject drainage area. Their land was assessed with a combined LUF of 0.58.
43Ms. Whitmore presented the evidence on behalf of the Whitmores. They brought their appeal on the grounds that their land is assessed too high, other land or roads are assessed too low, other land or roads that should have been assessed have not been and that due consideration has not been given to the type of land use.
44The relief sought by the Whitmores is that the 2022 Report be set aside with an order that the costs of the 2022 Report, and all of the City of Ottawa’s costs of the appeal, not be assessed to watershed lands but be paid out of the General Funds of the City of Ottawa or, in the alternative, that the following changes be made to the 2022 Report:
a. That the LUFs be made to be consistent with the Tribunal’s 2020 Decision;
b. That the Distance Factor be replaced by a Tile Drain factor weighted to reflect usage of pumps and drainage of wetland (PSW or not);
c. That the LUF reflect the current use of land, not the potential use of the land;
d. That Schedule E be removed from the 2022 Report (Schedule E provides a maintenance schedule for the currently non-existent Pump and Dyke System and changes the previous assessment category from “special benefit” to “benefit”) and that the Pump and Dyke System not be reinstated;
e. Correct all errors and data errors within the 2022 Report (both identified in this proceeding and not); and
f. Specify methodology used, how data is verified, and source and age of data.
45Ms. Whitmore stated that there are better indicators to reflect the volume and rate of water artificially caused to flow than the Distance Factors used in the 2022 Report. She submitted that using a LUF of 1 for all properties of a certain size doesn’t make sense and does not reflect the volume and rate of water artificially caused to flow, and that the LUF should not be based on possible future land use.
46Ms. Whitmore stated that some properties are assessed too low and, therefore, her property is assessed too high. Further, Ms. Whitmore stated that the 2022 Report has numerous errors and omissions.
47She argued that, although the 2022 Report at page 4 states that “The factored method allows the Drainage Engineer to recognize that the volume and rate of flow of water varies with different land uses, soil types, surface conditions and distance from the drain”, she could not find anywhere in the 2022 Report that soil types were considered in the formula.
48Ms. Whitmore challenged the Distance Factor, stating that the Distance Factor is supposed to estimate volume and rate of flow and that the realities of the watershed make topography and agricultural practices (such as tile drainage paired with pumps) a much better indicator of volume and rate of flow and, therefore, a better parameter for an assessment formula.
49Ms. Whitmore notes that the Pump and Dyke System of the Drain in the 1969 Report was assessed as Special Benefit, as defined at s.1 of DA. In the 2022 Report the Pump and Dyke System is now assessed as Benefit as defined at s. 1 of the DA. It is Ms. Whitmore’s opinion that this change is a design change, as “benefit” is part of the functioning of the drain. As such, all watershed landowners may be assessed for benefit, and that as “special benefit” it is an addition to a project that does not affect the functioning of the drain. Ms. Whitmore notes that the change from special benefit to benefit was made in the 2022 Report without any notice and that no rational for the change was provided. Further, Ms. Whitmore asserts that this change is a design change and that every landowner on the drain may be charged additional outlet in the future as a result.
50Ms. Whitmore stated that she expected that the LUFs used in the 2022 Report would be those as ordered by the Tribunal in the Tribunal 2020 Decision, but they are not. Ms. Whitmore stated that she and others asked for the LUFs from the findings in Tribunal 2020 Decision to be used prior to the development of the 2022 Report.
51Ms. Whitmore opined that applying the same factor of 1.0 to all large lot rural lands is an easy way to calculate, but it does not meet the test of common sense, and that the following types of lands have very different run-off from water artificially caused to flow:
a. Christmas Tree Farm (trees absorb large amounts of water);
b. Horse or Cattle Farm (grazing land typically does not cause water to artificially flow);
c. Clear-cut cropland (absorbs water at different rates during growing season);
d. Clear-cut & tile drained crop land (artificially caused to flow from the tile drain exit);
e. Clear-cut, tile drained with paired pump (typical when tile drainage is installed below the level of the open drain—removing a greater amount of water than normal installation); and
f. Clear-cut, tile drained wetland (removes large volume of sequestered sub-surface water).
52A PSW designation or a Managed Forest Agreement means you get a tax benefit, but it does not represent the amount of water artificially caused to flow. One could discontinue a managed forest agreement, but the forest would still absorb water. A PSW designation does not reflect the amount of water sequestered by a wetland. Many non-PSWs would sequester a large amount of water and are important natural infrastructure. It was Ms. Whitmore’s request to have the LUFs from the findings of the Tribunal 2020 Decision applied. Specifically, all forested land have a LUF of 0.50 applied and all PSW lands (excluding any PSW that have been cleared) have a LUF of 0.0 applied.
Property ID # 233 -14.76 ha
53With respect to Property ID #233 in the 2022 Report, it was assessed as follows, NPSW 6.52 ha with a LUF 0.7, unprotected trees/ bush 5.37 ha with a LUF of 0.7, and the balance of the land of 2.87 ha with a LUF of 1.0, for a weighted LUF of 0.76.
54Ms. Whitmore stated that the neighbouring property identified as #233 in the 2022 Report, had a severance in 2018 or 2019, as well as land cleared and tile drained and that these changes are not reflected in the 2022 Report. In addition, the new severed property is missing in the assessment schedules.
David and Bronwyn Harper, Appellants Property ID #63
55Mr. and Mrs. Harper own and reside on property that is identified as #63 in the Engineer’s Report, of which 38.62 hectares, or 95.43 acres, is in the Cranberry Creek Municipal Drain area. Their property is in both sections #1 and #2. Their property was assessed in the 2022 Report as having 9.12 ha of PSW, 4.57 ha of NPSW, 0 ha of unprotected trees, with the balance of 24.93 ha being Agriculture/Rural. The weighted LUF attributed to their property in the Engineer’s report is 0.82.
56The Harpers stated that their property is not tiled drained and does not have direct access to the Cranberry Creek Municipal Drain.
57The Harpers disagree with the LUFs applied to the various classifications of land use as well as the quantity of land assigned to each land use classification on their land. They look to the findings in the Tribunal 2020 Decision and argue that they should be followed, and that the LUFs from that decision should be applied in the 2022 Report.
58The Harpers argue that the correct assessment of their land would provide that there are 9.12 ha of PSW with a LUF of 0, 6.01 ha Forest Cover (Christmas trees) with a LUF of 0.5, 12.31 ha Forest Cover with a LUF of 0.5, 4.57 ha NPSW with a LUF of 0.5 and the balance of the land, being 6.61 ha Agriculture/Rural with a LUF of 1. The weighted LUF, Ms. Harper stated, based on this assessment of the land, would be 0.468.
59Ms. Harper relied on eighteen (18) pictures of her property and eight (8) maps from the Ontario Government AgMaps online tool defining the size of each of the various land uses of the Harper property. From the pictures and maps Ms. Harper identified the size of the area on her property occupied by PSW, NPSW, treed/bush lands and the balance of the land. Ms. Harper based her LUF on the the values provided in the findings in the Tribunal 2020 Decision.
60Ms. Harper stated that as they initially reviewed the 2022 Report, they believed their property’s LUF to be too high. Also, they did a comparison of their property to seven neighbouring properties in the drainage area. The comparison properties are identified in the 2022 Report as ID # 48, ID # 109, ID #116, ID # 140, ID # 141, ID # 172 and ID #227.
61The Harpers’ evidence included aerial and roadside pictures of the comparison properties, Ontario Government AgMaps and their firsthand knowledge of the comparison properties.
Property ID #141 – assessed too low
62The comparison property ID #141 in the 2022 Report is assessed as follows; NPSW 0.36 ha with a LUF of 0.7, Unprotected trees/ bush 0.07 ha with a LUF of 0.7, and the balance of the land 30.07 ha with a LUF of 1 for a weighted LUF average of 0.86.
63The Harpers’ observation of the property provides that in their opinion the property has 0.07 ha of unprotected trees / bushland or NPSW with a LUF of 0.5; 0.36 ha of NPSW with a LUF of 0.5 and 30.07 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 1.
64The property is completely cleared and cultivated and used 100% for agriculture. The conclusion they draw is that this property was assessed too low.
Property ID #140 – assessed too low
65The comparison property ID #140 is 42.94 ha in total and in the 2022 Report is assessed as follows: PSW 10.7 with LUF of 0.4; NPSW 30.66 ha with a LUF of 0.7; and the balance of the land 1.58 ha with a LUF of 1 for a weighted LUF average of 0.64.
66The Harpers’ observation of the property provides that, in their opinion, the property has 0 ha unprotected trees / bushland or NPSW and 42.94 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 1.
67This parcel of land is 100% cleared and cultivated. The conclusion that they draw is that this property was assessed too low.
Property ID #109 – assessed too low
68The comparison property ID #109 is 60.07 ha in total and in the 2022 Report is assessed as follows: PSW 5.93 with LUF of 0.4; NPSW 19.43 ha with a LUF of 0.7; and the balance of the land is 34.71 ha with a LUF of 1 for a weighted LUF average of 0.84.
69The Harpers’ observation of the property provides that, in their opinion, the property has 0 ha PSW; 0.9 ha unprotected trees / bushland or NPSW with an LUF of 0.5; and 59.17 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 0.99.
70The conclusion that they draw is that this property was assessed too low.
Property ID #116 – assessed too low
71The comparison property ID #116 is 40.65 ha in total and in the 2022 Report is assessed as follows: 0.77 ha of PSW with LUF of 0.4; NPSW 19.26 ha with a LUF of 0.7; 0.3 ha of unprotected trees / bushland with a LUF of 0.7 and the balance of the land 20.31 ha with a LUF of 1 for a weighted LUF average of 0.84.
72The Harpers’ observation of the property provides that it is all cleared and drained and, in their opinion, the property has 0 ha PSW; 0 ha unprotected trees / bushland or NPSW and 40.65 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 1.
73The conclusion that they draw is that this property was assessed too low.
Property ID # 172 – assessed too low
74The comparison property ID #172 is 39.08 ha in total and in the 2022 Report is assessed as follows: 17.3 ha of NPSW with a LUF of 0.7; 4.56 ha of unprotected trees / bushland with a LUF of 0.7 and the balance of the land 21.82 ha with a LUF of 1 for a weighted LUF average of 0.85.
75The Harpers’ observation of the property provides that, in their opinion, the property has 0 ha NPSW and 39.08 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 1.
76This parcel of land is 100% cleared and cultivated. The conclusion that they draw is that this property was assessed too low.
Property ID # 227 – assessed too low
77The comparison property ID #227 is 42.94 ha in total and in the 2022 Report is assessed as follows: 9.39 ha of NPSW with a LUF of 0.7; 12.98 ha of unprotected trees / bushland with a LUF of 0.7; and the balance of the land 20.57 ha with a LUF of 1, for a weighted LUF average of 0.844.
78The Harpers’ observation of the property provides that, in their opinion, the property has 0 ha NPSW; 0 Unprotected tree/ bushland and 42.94 ha of Agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 1.
79This property is 100% cleared and used for cultivation. The conclusion that they draw is that this property was assessed too low.
Property ID # 48 – assessed too low
80The comparison property ID #48 is 41.65 ha in total and in the 2022 Report is assessed as follows: 6.49 ha of PSW with a LUF of 0.4; 5.77 ha of NPSW with a LUF of 0.7 and the balance of the land 29.4 ha with a LUF of 1 for a weighted LUF average of 0.86.
81The Harpers’ observation of the property provides that, in their opinion, the property has 0 ha PSW; 4.33 ha unprotected trees / bushland or NPSW with a LUF of 0.5 and 37.32 ha of agricultural land/ hobby farm/ rural residence larger than 2 ha with an LUF of 1, for a weighted LUF average of 0.948.
82The conclusion that they draw is that this property was assessed too low.
83The Harpers’ property is approximately 42.1 ha and in 2022 Report 3.48 ha are identified as not draining into the Cranberry Creek Drain. The Harpers contend that there is additional land that does not drain into the Drain due to the pipeline and drumlin to the north and west at the rear of the property.
84The Harpers ask the Tribunal to order that the findings of the Tribunal 2020 Decision with respect to the LUFs be applied to the current Report and that the errors in the 2022 Report be corrected.
Jacqueline Leger, Appellant - Property ID #220
85Ms. Leger owns the property identified as #220 on the Drain. It is 100 acres or 40.47 ha. in size, mostly forested, with a significant portion of wetlands. Ms. Leger believes that her property is assessed too high. Ms. Leger stated that she does not dispute the breakdown of forest, wetlands or agricultural lands assigned to her property, but what she does dispute are the LUFs that are used in the 2022 Report.
86Ms. Leger under oath noted where a stream runs through her property, the source of which she believes comes from three properties to the west of her property. Using GeoOttawa mapping she identified the ditches and the watercourses that are located on her land. It is her opinion that her property is identified as being a source water recharge area. Ms. Leger provided photos of the water courses on her property showing that the water does flow through her property. It was Ms. Leger’s assertion that there is no tiled land on her property.
87In Ms. Leger’s submissions, she argues that her property and many other properties in the drainage area have riparian rights as a result of their abutting on an unimproved natural watercourse and their use of a natural outlet, and therefore there should be no assessment at all.
88In her arguments supporting her claim of riparian rights, Ms. Leger looked to various common law sources and drainage publications. The following is the case law that Ms. Leger relied on.
a. Elma (Township) et al v. Grey (Township) 1954 ONDR 1 at page 11 and 12:
“As such, the landowners whose land borders on the stream or through whose lands the stream runs are riparian owners and have certain rights...”
“They may drain their lands to the stream in a reasonable manner and by this it is thought that they can use any means they choose, even to the extent of using an award drain constructed under the provisions of the Ditches and Waterworks Act or a drain constructed under The Municipal Drainage Act. The only way they could be unreasonable would be to cut through a height of land in order to drain part of their land forming a portion of the watershed of another stream. Having these rights they do not receive any benefit from the proposed work and their assessment for outlet liability is illegal.”
b. Belzner v. Dunnville (Town) 1992 ONDR 1 at page 7:
“I have decided that the Engineer’s Report must be set aside on the basis that the engineer failed to consider whether any of the upstream owners were riparian owners discharging into a natural watercourse and therefore exempt from the outlet liability.”
c. Hodgson v. Mariposa (Township) 1993 ONDR 1 at page 5:
“there have not been any changes to the water course which would not make it a natural water course. It does not matter whether there are crops grown or cattle raised around the water course. As long as the upstream owners, which abut the natural water course, only drain water from their own property, they are riparian owners and are entitled to reasonably drain into the water course without being assessed for outlet liability.”
d. Bradford-West Gwillimbury (Town) v. King (Town) 2002 ONDR 2 at page 19, 20, 21:
“In Turtle v Township of Euphemia (1900) 31 O.R. 404, Meredith J. said at page 407 “Now whatever notion I might have of the necessity for, or wisdom of, that which the legislature in plain words provide, I must give effect to it. I have no right to adjudicate away any part of an enactment because it might seem to me to be needless ... it is surely but right to give the person who made this law credit for both knowing and saying what they mean and saying no more than they meant” ...
“Section 23 of the Act states that “lands and roads that use a drainage works as an outlet ... directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.” ...
“It is thus clear beyond all doubt that there is no exception in terms of assessment for riparian owners under the terms of the Ontario Drainage Act. If such were the case, not only would it be highly inequitable in result, but it would be almost impossible in application. It would also be contrary to the general practice of drainage engineers which I have witnessed in my twenty‑five years association with the Drainage Act in the Province of Ontario.
This Court therefore has no difficulty in deciding that the Drainage Act of Ontario doesn’t provide for an exemption for riparian owners with respect to drainage assessment and that therefore their assessment in the current Report is correct and in compliance with the requirements of the Act.”
e. The Sutherland-Innis Company v The Township of Romney 1900 1 (SCC)]; at p. 495:
“Every assessment, whether for “injuring liability” or for “outlet liability” must be made upon consideration of the special circumstances of each particular case and restricted to the mode prescribed by the Act. In every case there must be apparent water which is caused to flow by an artificial channel from the lands to be assessed into the drainage work or upon other lands to their injury which water is to be carried off by the proposed drainage work.”
89Ms. Leger argued that it was not necessary for the appellants to have provided their own expert evidence and referred to Willford Road Municipal Drain (RE) 1997 ONAFRAAT 3:
“In this case, it seemed to the tribunal that (Engineer) Wiebe's evidence proceeded upon the assumption that, absent expert engineering evidence to the contrary, the Tribunal had little choice but to adopt his expert testimony and opinion as to assessment. The Township's submissions were to the effect that the onus is upon the appellants, that the onus can only be discharged by adducing engineering evidence, and that, absent such evidence, the appellants have not discharged the onus upon them and cannot therefore expect to be successful. Certainly, the Tribunal has high regard for the expert testimony of the engineers that appear before it, but the Tribunal is not to be taken as automatically endorsing that evidence, even in the absence of contrary professional evidence. It has never been the practice of the Tribunal to require appellants to appear with engineers in order to challenge successfully municipalities' engineers' reports. In this panel's view, once an appellant has raised a cogent question or issue, it is incumbent upon the municipality and its engineer to provide a response that satisfies the Tribunal.”
90Ms. Leger stated that managed forests and unmanaged forest are the same as far as artificially caused to flow runoff and should have the same LUF applied to them.
91Ms. Leger stated that her property is a significant groundwater recharge area and offered as evidence an OMAFRA 2024 map that indicates that a section of her property and other neighbouring properties are part of a Rideau Valley Conservation Authority Special Policy Area. It is her opinion that this fact has not been considered, and that her property is not properly assessed. This further leads her to question the accuracy of all the assessments.
92It is Ms. Leger’s assertion that her property should not be assessed at all in the 2022 Report, due to it being a riparian property with a natural watercourse as its outlet and further, for the same reason, many properties on the Drain have been incorrectly assessed. Accordingly, she requests that the 2002 Report be set aside.
Marc MacDonald, Appellant - Property ID #173
93Marc MacDonald stated that his property is assessed in the 2022 Report for 225 acres or 91.05 ha, while his parcel of land is in fact 191.85 acres or 77.64 ha. Mr. MacDonald provided as evidence his City of Ottawa final tax bill for 2023, his MPAC property assessment notice from November 2023, and a confirmation letter from the Ministry of Natural Resources confirming his participation in the Managed Forest Tax Incentive Program dated December 12, 2023 citing the total area of the property as 191.85 acres or 77.64 ha. and the total area of the managed forest 98.23 acres or 39.75 ha. In addition, he submitted an acceptance email from the Ontario Ministry of the Environment for the Conservation Land Tax Incentive Program indicating that Mr. MacDonald’s property is 191.85 acres with 92.62 acres of PSW.
94Mr. MacDonald stated that the managed forest area on his property has not changed since 2018, and that the PSW has not changed since 2014.
95It is Marc MacDonald’s assertion that the correct assessment for his property with a total size of 77.64 ha or 191.85 acres is 37.48 ha or 92.62 acres PSW, 39.75 ha or 98.23 acres Managed Forest, 0.05 acres or 0.02 ha Agricultural/Rural and the balance NPSW.
96Mr. Macdonald requests that the LUFs as established in the findings in the Tribunal 2020 decision be adopted by the Tribunal at this time.
97In addition, Mr. MacDonald requests that the 2022 Report be set aside due to incompleteness, or be significantly updated due to significant errors in the calculation of and application of LUFs. PSW, Forested Lands and well drained fields should be reassessed, and “Land Use Factors Calculations for the Future Maintenance of the Cranberry Creek Municipal Drain”, dated COR 28-SEP-22.
Carol MacDonald, Appellant
98Ms. MacDonald identified that the roll numbers for properties 204, 205 and 206 are not correct. They have been mislabeled and do not line up with the property size in the 2022 Report.
99For the Mulholland properties ID # 204, #205 #206, there are discrepancies with the roll numbers and the property sizes. Changes were made at the direction of the Court of Revision; however, while the roll numbers were changed to correctly align with the property ID’s, the size of the parcels of land and the LUFs were then not aligned with the correct parcel of land. The assessments were altered in the updated schedule after the Court of Revision, and the LUF for property ID# 204 was arbitrarily given as 0.5, which is lower than the LUF of 0.70 that would have been attributed to the property if calculated using the formula used for other properties in the 2022 Report.
100For properties ID # 297 and # 301, Ms. MacDonald noted that in examining the 2022 Report and the document “Land Use Factors Calculations for the Future Maintenance of the Cranberry Creek Municipal Drain”, dated COR 28-SEP-22, the weighted LUF is lower than it would be if the LUFs in the 2022 Report are applied, but are accurate if the LUF for Agriculture of 1.0 from the Tribunal 2020 Decision is applied in the calculations.
101Ms. MacDonald identified that the weighted LUF for property ID #301 in the 2022 Report is 0.55; however, it is comprised of 10.01 ha Agriculture and 1.82 of NSPW for a total area of 11.84 ha. Based on the formula that has been used in the 2022 Report, the weighted LUF should be 0.96. Therefore, the conclusion that Ms. MacDonald arrived at was that Property #301 is assessed too low.
102Ms. MacDonald expressed concerns about the accuracy of the 2022 Report citing many discrepancies on the sizes of the parcels of land in the drainage area. She presented a chart with 24 properties in the drainage area showing discrepancies in the total land area in the 2022 Report to MPAC property size:
| ID # | Total Ha. in Drainage area – Schedule A Sept 22, 2022 COR | Total Ha. in Drainage area – LU Calculation sheet Sept 22, 2022 COR | Difference in Ha from Sch. A to LUF Calc sheet | % increase on LU Calculation sheet |
|---|---|---|---|---|
| 154 | 39.35 | 45.73 | 6.38 | 16% |
| 164 | 20.23 | 23.87 | 3.64 | 18% |
| 169 | 30.37 | 37.81 | 7.44 | 24% |
| 173 | 77.64 | 91.05 | 13.41 | 17% |
| 177 | 40.47 | 47.70 | 7.23 | 18% |
| 178 | 40.47 | 48.57 | 8.10 | 20% |
| 179 | 40.47 | 44.22 | 7.75 | 19% |
| 180 | 20.23 | 24.49 | 4.26 | 21% |
| 182 | 40.47 | 46.79 | 6.32 | 16% |
| 183 | 20.23 | 24.07 | 3.84 | 19% |
| 184 | 20.23 | 23.34 | 3.11 | 15% |
| 185 | 54.94 | 61.75 | 6.81 | 12% |
| 192 | 40.47 | 46.74 | 6.27 | 15% |
| 194 | 25.20 | 37.36 | 12.16 | 48% |
| 195 | 20.23 | 25.29 | 5.06 | 25% |
| 196 | 10.12 | 13.30 | 3.18 | 31% |
| 197 | 70.82 | 79.29 | 8.47 | 12% |
| 198 | 20.23 | 23.28 | 3.05 | 15% |
| 199 | 20.23 | 23.68 | 3.45 | 17% |
| 200 | 15.59 | 19.07 | 3.48 | 22% |
| 220 | 40.47 | 49.34 | 8.87 | 22% |
| 221 | 33.98 | 42.40 | 8.42 | 25% |
| 226 | 7.61 | 16.17 | 8.56 | 112% |
| 260 | 35.21 | 43.03 | 7.82 | 22% |
103Ms. MacDonald stated her concern that when there are as many errors as she has found, there could be more, and that the reliability of the whole 2022 Report is in question. Further, as a party in this appeal she was given the additional information contained in the Land Use Calculation Sheet dated September 28, 2022 which provides the background information to the 2022 Report, without which the discrepancies are not identifiable.
104Ms. MacDonald relies on the evidence and statements of both the Harpers and the Whitmores and agrees with them that the LUF of 0.4 for PSW and 0.7 for Forest in the 2022 Report are too high.
105In addition, Ms. MacDonald agrees with the Ms. Whitmore’s statements on the change from Special Benefit to Benefit for the Pump and Dyke System. In addition, Ms. MacDonald notes that according to the Engineer, landowners are still assessed for Special Benefit and not Benefit. Her concern lies with there being no reassessment after the category change. It is her assertion that the Pump and Dyke System should have remained as a Special Benefit.
106Ms. MacDonald’s request is that the 2022 Report be set aside or, in the alternative, that the mistakes in the 2022 Report be corrected, including but not limited to property areas; that the LUFs from the Tribunal 2020 Decision be adopted and applied to all properties in the drainage area; that the Pump and Dyke System be changed back to Special Benefit as it was in the 1969 Report; and that the 2022 Report be resubmitted to all landowners with the Land Use Calculation spreadsheet included.
Shannon and Jeff Storie, Appellants - Property ID # 180
107Shannon and Jeff Storie own 7411 Malakoff Road, Property ID #180 in the 2022 Report. The Stories’ property is 50 acres or 20.23 ha and it is Ms. Storie’s observation that there is a 50 - 50 split between PSW and wood lands. The property was purchased in 2010 as their permanent home. Ms. Storie advised the Tribunal that they have altered the property by adding two large ponds that retain additional water. It is their desire to keep the wetlands on the property for future generations. Generally, they agree with the description of their property in the 2022 Report; however, they disagree that there is a drain that runs at the back of their property. It is no longer there and, in their opinion, it is no longer needed.
108Ms. Storie stated that their property is wet most of the year and that little water leaves their property; they are 10 kilometers from the outlet and she doubts much water from their property makes it to the outlet. She therefore disputes the distance factor as it relates to her property.
109The 2022 Report records 20.23 ha or 50 acres as being in the drainage area with sub-areas of 9.60 ha as PSW, 14.18 ha as NPSW and 0.72 ha Agriculture Rural. These sub-areas total 24.50 ha or 60 acres. Ms. Storie stated that this inaccuracy skews the weighted LUF.
110The Stories argue that their assessment is too high due to the current state of their property, its comparison to other properties, the property’s distance to the drain, the use of the property, the inaccuracy of the math used for the calculation of the assessment, and for their lack of benefit from the drain.
111It was Ms. Storie’s observation that Property ID #140 was cleared in 2019 and has since been planted with the cash crops of corn and beans. It is her assertion that it is assessed too low.
112Ms. Storie noted that in the findings in the Tribunal 2020 Decision, the LUF for PSW was 0 and Forest / Bush was 0.5. She finds it frustrating that the results from that decision were not used in the 2022 Report.
113Ms. Storie has concerns for the future of their wetlands if the Pump and Dyke System is reintroduced, and water levels are lowered. In the 2022 Report, the history of the drain does not include the fact that the Special Benefit Pump and Dyke System was removed and has been abandoned.
114Ms. Storie is not disputing the need to maintain the drain. They support and agree with all the evidence presented by the other Appellants.
115The Stories request that their property’s LUF reflect the values in the findings of Tribunal 2020 Decision, that all the errors in the 2022 Report that have been identified throughout the hearing be rectified and that all reference to the Pump and Dyke System be removed from the 2022 Report as it cannot be maintained as it does not exist.
116They want to see a report that allocates an equitable distribution of the costs based on the use versus non-use of the drain given tiled properties and the benefit versus non-benefit. They feel that the distance factor needs further review.
117Ms. Storie asserted that the 2022 Report does not accurately reflect the land use changes that were present in 2022 at the time of the report was written, and due to the numerous errors and misleading wording, the 2022 Report should be set aside.
Wanda Bracken, Sandra Lueck and Scott Carrigan, Appellants - Property ID # 208
118Wanda Bracken presented evidence and arguments for the property owned jointly by siblings, Wanda Bracken, Sandra Lueck and Scott Carrigan. The property is an 80-acre bush lot that was left to them by their grandfather who purchased it sometime in the 1970’s. The property is used by the family as a place to gather, hike and spend time in nature.
119They were appellants in the Tribunal 2020 Decision and were disappointed that the 2022 Report did not follow the recommendations put forth in that decision. They agree with Ms. Whitmore and the relief that she is asking of the Tribunal.
120Ms. Bracken stated that property ID #109 has been cleared and used for crops and has a LUF of 0.84 while their land is treed and wetlands and has a LUF of 0.75.
121Ms. Bracken noted that their land has been assessed as having 3.47 ha of Agriculture/ Rural, while the entire property is treed, with the exception of a small cleared area. None of the cleared land on their property is being used for or is suitable for agricultural proposes. Their land is either marshy or rocky. Ms. Bracken argued that the City of Ottawa’s position that they could alter the soil composition of the land in the future by bringing in truckloads of top soil or changing the water flow on their land to improve the drainage so they could begin to farm their land is not only implausible but contrary to the City of Ottawa’s Site Alteration By-law 2018-164. The By-law at Section 7 subsection 1 reads “no person owner or occupant shall or shall permit any person to alter or obstruct or cause or contribute to the obstruction of a ditch, drain or lot grade such that the flow of storm, rain, ground, surface, or subsurface water is increased impaired or deviates from the existing drainage pattern or approved grading and drainage pattern and causes or is likely to cause an adverse condition on any abutting property”. Site alteration means “activities such as the removal of topsoil from land, the placement of or dumping of fill on land, the alteration of the grade of land, or the excavation by any means. including the clearing or stripping of vegetation from the land, the compaction of soil and the creation of impervious surfaces or any combination of these activities.”
122Ms. Bracken stated that if they or a future owner were to alter the land, they would need a permit from the City and then they would also have a new assessment.
123It is Ms. Bracken’s assertion that they should be assessed on how the land looks and is currently being used today; not to be assessed and penalized on how land might be used in 20 or 100 years from now or by a different owner. She states that this approach is unreasonable.
124Ms. Bracken questioned how it was determined that 19.3 ha of their land have outlet to the drain. They have areas that are very wet and marshy, a vernal pool which is a natural way of holding water, as well as cedar trees that Ms. Bracken argues help to absorb any natural runoff.
125Ms. Bracken asks that the 2022 Report be set aside due to the many errors it contains. In the alternative, they ask that their LUF to be reduced to 0.50 as was determined in the Tribunal 2020 Decision and that the costs of the 2022 Report and all the costs of the Appeal be paid out of the City of Ottawa’s General account and not assessed to the watershed lands.
Lisa Larwill, Appellant - Property ID #21
126Ms. Larwill owns property #21 which is close to the Drain and abuts the Bruce Branch of the Drain. Ms. Larwill is concerned that her property will not be eligible for the grants awarded to farms.
127She argues that her Total Combined LUF should be less than that of her neighbouring property to the northwest, Property ID #20, that is cleared of trees and cropped.
128In the 2022 Report her land was assessed as being comprised of .44 ha Forest Cover and 12.33 ha Agri./Rural for a total of 12.76 ha in the Drainage area. Ms. Larwill, relying on maps and pictures, argued that her land is more accurately described as having 5.11 ha unprotected trees/ bush land or NSPW and 7.65 ha Agri./ Rural.
129Ms. Larwill stated that she does not have any tile drainage on her land and that, as a result, there is no water that is artificially caused to flow from her property. Therefore, she does not believe she should be assessed for outlet liability.
130Ms. Larwill noted the configuration of the Bruce Drain in the 1969 Report and noted that in the 2022 Report it takes a slightly different route and is now on the corner of her property. It is Ms. Larwill’s opinion that the drain should not be on her property and should be in the configuration as shown in the 1969 Report.
131The relief that Ms. Larwill seeks is that the 2022 Report be set aside due to the numerous errors in the report. She argues that because the assessment dollars in the report are only for the cost of producing the report, it is improper notice of the full or potential cost of maintenance on the Drain. Ms. Larwill requests that her property be excluded from outlet assessment as she does not gain any benefit from outlet to the drain. Further, she requests that she be removed from any costs associated with the Bruce Drain as it does not service her property. She wishes her LUF to be changed to accurately reflect how her land is used and the water that she contributes to the drain.
Participant Submissions
Phyllis Begg, Participant
132Phyllis Begg, a property owner in the drainage area of the Drain, owning Properties ID #251 and ID #252, made an oral submission at the hearing. Ms. Begg stated that she agrees with all the Appellant submissions. She withdrew from being an Appellant and became a participant as she found the process very hard to follow. She stated that her land was assessed too high in the 2022 Report as a result of the classification of land use that had been attributed to her property; however, Mr. Robinson and Mr. Franklin have addressed her concerns and lowered her assessment, and she is quite happy with the outcome.
Stephen Wendt, Participant
133Stephen Wendt provided the Tribunal with a written submission on behalf of himself and Alexandra Wendt. The Wendts are property owners in the drainage area.
134Mr. Wendt wrote that what they think should happen in this matter is as follows:
a. Schedule E, for the future maintenance of the Pump and Dyke System, should be dropped from the 2022 Report.
b. The assessment schedules should be set aside because of these failings:
i. properties are not examined in the context of Drainage Act 23(3) to document that surface water is artificially caused to flow from them.
ii. volume and rate of flow of water have not been sampled – nor has any related modeling been done to justify otherwise arbitrary impositions of land use factors for forested lands, wetlands and other non-agricultural uses.
iii. given the nature of this watershed, important areas of groundwater recharge that are self-draining should be indicated as a category that is taken into consideration in the 2022 Report. All such lands should be considered and the 2022 Report fails by having no discussion at all of these lands.
iv. actual land use in forested areas is not properly based on reality, giving undue weight to forestry management plans which themselves do not constrain future land use.
v. assessments identified in previous reports as special benefit should remain such – they should not be changed to benefit.
vi. data sources on land use, ownership, and other details need to be updated noting that numerous errors have been brought out in Party testimony.
c. The 2022 Report should be set aside because no estimate of the actual costs of maintenance was supplied.
d. Wetlands and floodplains should be properly considered. Significant wetlands and floodplains should not be assessed for the Drain.
135Mr. Wendt argued that Schedule E should be removed from the 2022 Report for the following reasons:
a. Schedule E is for the future maintenance of a Pump and Dyke System.
b. A Pump and Dyke System do not exist and have been gone for something like 40 years.
c. It is absurd that the City would propose Section 76 maintenance for something that does not exist.
136Mr. Wendt further noted that when the pump required replacing in 1991 it was decided by the municipal council not to replace it and the Pump and Dyke System was abandoned after Rideau Township Council passed Resolution 91-369 on September 24, 1991 (the “1991 Resolution”).
Owen Severn, Participant
137Owen Severn in his written submission wrote:
“My property is identified in the various assessment papers as property #61. The City of Ottawa roll number is 182 840 09962 0000.
Some of the comments I have regarding the preparation of the proposed assessments are fairly general and undoubtedly apply to many or all of the other lands in the drainage basin. I believe that these comments are being brought forward by ‘parties’ for the Tribunal’s review. My disagreements with the Engineer’s report, as they apply generally to all properties being assessed, but more specifically to my property, are as follows:
a. Some of the rulings of the previous Tribunal have not been carried forward in developing the new assessments.
b. A part of my property is being assessed as if it is in Section 1 even though it is clearly in Section 3.
c. A small part of my property in the southeast corner is included in the assessment even though it is not in the Cranberry Creek drainage basin.
d. The types of land making up my property and their respective land use factors are incorrect in the assessment report. The actual various land use types that form my total property and their respective and appropriate land use factors are as follows (as noted in the previous Tribunal findings):
i. Provincially significant wetlands (covered under the provincial Conservation Land Tax Incentive Program): 14.3 hectares at a land use factor of 0 gives a land use value of nil.
ii. Non-significant wetlands, unprotected tree/bush land: 5.8 hectares at a land use factor of 0.5 gives a land use value 2.9.
iii. The balance of land allocated to residence, yards and driveway: a nominal 2.0 hectares at a land use factor of 1.0 gives a land use value of 2.0.
iv. The total area of my property and the total of the various land use values are 22.1 hectares and 4.9 respectively.
e. The discrepancies between the numbers I have shown and those numbers used in the assessment report are considerable. The resulting difference in assessment is significant.
In conclusion, I submit that the assessment of my property as determined by Robinson Consultants (in the 2022 Report) is incorrect and needs to be adjusted. My neighbours to the south (David and Bronwyn Harper) are parties to this matter and share the same concerns as I have outlined above as they concern their property.”
Pieter Leenhouts, Participant
138Pieter Leenhouts, P. Eng., a Past Chair of the Rideau Valley Conservation Authority as well as a landowner in the drainage area, provided a written submission outlining his concerns. They are as follows:
a. Incorrect quantity of land assessed for Managed Forest on his property with the source the information coming from the City of Ottawa Property assessment rolls. The assessment rolls are incorrect as it relates to his property.
b. The nature of the area in the Cranberry Creek catchment area is dominated by woodland, wetlands and agricultural lands with infrastructure and residential dwellings. The natural areas will be affected by changes to Cranberry Creek flows.
c. After the release of the 2022 Report, the Cranberry Creek Landowners Association did a poll in the catchment area and found that over 70% of the landowners are opposed to the reinstated municipal drain and Pump and Dyke System.
d. The 2022 Report implies that it is to resurrect the Pump and Dyke System described in the 1969 Report. The 2022 Report provides a Schedule of Assessments that includes the Pump and Dyke System. The pump system is now absent, and the dyke is currently not functional. Reinstatement of the Pump and Dyke System will be perceived as development and not maintenance. What funds will be used for this?
e. Another concern is the cost of the clean out of the drain. The initial clean out will require major work effort and cost and does not constitute mere maintenance and minor improvements as stated in the 2020 Tribunal Decision. This needs to be clarified.
f. The concern is that the wishes of the majority of the landowners in the subject area are ignored.
g. The demand that tile-drained fields put on the drainage system both for wear and tear and commensurate maintenance is estimated to be greater than a surface-drained agricultural field. Therefore, the relative flows from tile drained land should be examined and the effect of these flows on the drain be evaluated and, if appropriate, that a land use factor be established that is commensurate to demand. For example, a land use factor for tile drained areas as high as 2 over a normal surface drained agricultural field with a land use factor of 1.
h. Due to the important land characteristics of wetlands and forests, it is recommended that consideration be made to reduce the LUF for wetlands and forests, to between 0.25 and zero.
i. There is a concern that the border or perimeter of the Cranberry Creek catchment does not accurately depict the catchment.
j. A concern relates to tile drained areas that straddle the catchment perimeter and therefore are not accurately represented in assessment schedules.
k. Some of these tile drained areas may have the discharge point inside the catchment area and others may have it outside the catchment area and should be accounted for accordingly. In low areas, tile drainage requires a sump pit and pump to remove the water into the drain, so these pumps should be identified as the discharge points.
Denis Boyer, Participant
139Denis Boyer provided the Tribunal with a transcript from a meeting he had with Erin Moore, Municipal Drainage Program Officer, City of Ottawa and David Brown, Councillor for Ward 21, City of Ottawa. At the meeting Mr. Boyer expressed his displeasure with the City of Ottawa for hiring external lawyers to deal with the Appeal, alleged that intimidation tactics had occurred, and expressed that the landowners are not the enemy. It was noted by Denis Boyer that $110,000 is budgeted to pay the external lawyers and that it will be charged back to the Drain.
Law
140This appeal was brought pursuant to section 54 of the Act:
52 (1) An owner of land assessed for the drainage works may appeal to the court of revision on any of the following grounds:
Any land or road has been assessed an amount that is too high or too low.
Any land or road that should have been assessed has not been assessed.
Due consideration has not been given to the use being made of the land.
54 (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. ...
141In considering this appeal, the Tribunal must consider section 23 of the Act:
23 (1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.
(2) If, from any land or road, water is artificially caused by any means to flow upon and injure any other land or road, the land or road from which the water is caused to flow may be assessed for injuring liability with respect to a drainage works to relieve the injury so caused to such other land or road.
(3) The assessment for outlet liability and injuring liability provided for in subsections (1) and (2) shall be based upon the volume and rate of flow of the water artificially caused to flow upon the injured land or road or into the drainage works from the lands and roads liable for such assessments.
142With respect to the Pump and Dyke System, the Tribunal must also consider whether its inclusion in the 2022 Report could constitute construction or reconstruction under section 78 of the Act:
“78 (1) If a drainage works has been constructed under a by-law passed under this Act or any predecessor of this Act, and the council of the municipality that is responsible for maintaining and repairing the drainage works considers it appropriate to undertake one or more of the projects listed in subsection (1.1) for the better use, maintenance or repair of the drainage works or of lands or roads, the municipality may undertake and complete the project in accordance with the report of an engineer appointed by it and without the petition required by section 4. ...
(1.1) The projects referred to in subsection (1) are:
- Constructing, reconstructing or extending embankments, walls, dykes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.”
Analysis
A. Are the Land Use Factors (“LUFs”) used in the 2022 Report correct or should they be modified to reflect those in the Tribunal 2020 Decision?
143In the Tribunal 2020 Decision the Tribunal made the following findings with respect to the LUFs included in the December 20, 2017 Engineer’s Report for the Cranberry Creek Municipal Drain:
“The Land Use Factor for Forested Lands
The Tribunal finds that the Engineer’s application of a LUF of 1.0 to the forested land within the drainage area, that is the same LUF as applied to cleared, worked agricultural land, is in error and that the Engineer’s principle six, as follows, has been incorrectly applied.
- In assessing lands covered with bush and trees, if the situation is such that once the drain is in place, the property owner will be able to clear the bush and cultivate the land, then the property should be assessed in the same way as land already under cultivation, unless there are agreement(s) or legal restrictions which prevent clearing and cultivation. (Emphasis added.)
This principle has been taken from the Dries & Todgham paper but has been incorrectly applied in this Report, as this Drain has been ‘in place’ for well over 100 years and the only ‘bush’ areas within close proximity to the Drain are all classified as PSWs that cannot be cleared.
It is the view of this Tribunal that a LUF of 0.5 should have been applied to all forested land, except for PSWs, assessed within this Report. Furthermore, if forested land is cleared in the future, a LUF of 1.0 should be applied to such properties the next time the maintenance schedule for the Drain is revised.”
“The Land Use Factor for Provincially Significant Wetlands (PSWs)
In the Report, the Engineer applied a LUF of 0.5 to all PSWs. A number of owners of PSWs argued that their lands are natural and quite wet and do not artificially cause water to flow to the Drain. Many photos of such lands were submitted as evidence. The Tribunal does not agree with applying a LUF of 0.5 to these properties for assessment purposes. During his evidence regarding the PSWs only within the Pump Station Benefit Area, the Engineer acknowledged that, upon further reflection and consideration of the evidence submitted by the appellants, he now feels a fair and reasonable resolution to this matter would be to apply a LUF of 0.0 to these PSW areas, rather than the 0.5 factor that was previously used, since they are ‘protected’. The Engineer suggested that this alteration should apply only to the Benefit assessments of these properties, not to the outlet assessments. The Tribunal agrees that a lower LUF should be applied to all PSWs, but not just to the PSWs in the Pump Station Benefit area, and not just for Benefit assessments. Accordingly, this Tribunal is of the view that a LUF of 0.0 should be applied to all PSW properties within the entire drainage area, for both benefit and outlet assessment calculations. However, a LUF of 0 should not apply to any PSWs that have been cleared, such as parts of properties #115, #121, #122, #248 and #249.”
144The Appellants contend that the Tribunal’s 2020 findings are binding, and the LUFs in the June 2, 2022 Engineer’s Report must be consistent with those findings, applying the LUF of 0.5 for all forested land except for PSWs, and a LUF of 0.0 for PSWs.
145This argument poses the question as to whether the principles of res judicata and stare decisis apply to the Tribunal.
146As noted by the Tribunal in Wesselson v DFO, 2021 ONAFRAAT 3 at paragraph 66, “It is trite law that the principle of stare decisis does not apply to administrative tribunals; however, we must strive to continue to develop a body of consistent jurisprudence.”
147Parties to proceedings before the Tribunal should be able to rely on the reasonable expectation that cases involving similar factual and legal questions before the Tribunal will be decided the same way, unless changes in the law warrant a different result. This prevents re-litigation of issues already settled by the Tribunal.
148This approach was affirmed by the Tribunal in National Farmers Union [Request for Review], 2013 ONAFRAAT 8:
Generally, once the Tribunal makes a decision, its statutory mandate is concluded and the legal principle of functus officio applies to prevent the Tribunal from reconsidering its decision. Functus officio is a sub branch of the law of res judicata meaning that the “issue” has been decided. The legal principle of res judicata is engaged to prevent a party from re-litigating the same issue more than once.
149With respect to the appropriate LUF for forested land and PSWs in the June 2, 2022 Engineer’s Report, the Tribunal 2020 Decision deals with the same factual and legal issues. The Tribunal 2020 Decision specifically addresses LUFs for the same properties and the same Drain. The Tribunal accepts the Appellants’ arguments that the LUFs set out in the 2020 Decision should be used in the 2022 Report.
150The City of Ottawa did not put forward any arguments as to why the LUFs in the 2022 Report for forested land and PSWs should be different than those decided in the Tribunal 2020 Decision. Rather, the City of Ottawa contended that the Tribunal 2020 Decision could not be considered by the Tribunal in this proceeding. The Tribunal does not accept this argument for the reasons outlined herein.
B. Can the Pump and Dyke System properly be included in the 2022 Report?
151The 2022 Report provides an assessment schedule for the maintenance of the Pump and Dyke System. However, the Appellants’ evidence is that the Pump and Dyke System is longer in use and has not been since 1991.
152The Appellants claim that the pump station was dismantled and the dyke system abandoned. The City of Ottawa did not put forward evidence to contradict this assertion. Indeed, the Appellants’ assertion is consistent with the 1991 Resolution of the municipal council removing the Pump and Dyke System from the Drain.
153On the totality of the evidence, the Tribunal accepts the Appellants’ evidence that the Pump and Dyke System was dismantled and abandoned, and that it cannot simply be repaired or maintained, but would need to be reconstructed to become functional again. Construction or reconstruction of a dyke or pumping station falls within the scope of section 78 of the Act.
154The Tribunal finds that the Pump and Dyke System assessment schedules included in the 2022 Report fall outside of the authorization and scope provided in section 76 of the Act and cannot be included in the 2022 Report.
C. Are the assessments on the properties of the individual Appellants too high; are there assessments on the properties in the 2022 Report that are too low and are all the lands and roads in the drainage area assessed?
155The Tribunal has determined that the LUFs used in the 2022 Report must be amended to comply with those ordered by the Tribunal in the Tribunal 2020 Decision. In addition, the Tribunal has determined that the Pump and Dyke assessment schedules are improperly included in the 2022 Report.
156Appellant Leger alleged that her land has Riparian Rights. On the totality of the evidence, the Tribunal has determined that drainage improvements have been made on her land such that water is caused to artificially flow through and away from her land. Therefore, the Tribunal finds that Ms. Leger’s land does not have riparian rights.
157The Appellants identified in their evidence a multitude of errors in the assessment of the properties within the drain. Frequent errors identified in the 2022 Report included, but are not limited to, misidentifying the current land use of properties, such as, lands changed from forest cover into agriculture.
158These errors are too significant to allow the Tribunal to issue an order that will properly address these problems in the 2022 Report. It is on this basis that the Tribunal finds that the 2022 Report prepared by Robinson Consultants shall be set aside.
159On the basis of this decision, it is not necessary for the Tribunal to address the Appellants’ additional alleged property specific errors in the 2022 Report.
Order of the Tribunal
160The appeals under section 54 of the Act are granted.
161The Report of Robinson Consultants Inc. dated June 2, 2022 is hereby set aside.
162The parties shall pay their own costs of these appeals.
163The costs of the City of Ottawa with respect to these appeals shall include the Engineer’s fees and expenses for preparing the 2022 Report, the Engineer’s fees and expenses associated with the Court of Revision and the Engineer’s fees and expenses in relation to this hearing.
Released: December 11, 2024