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:
Cynthia and Robert MacNeil, Jack, Charline, Nathan and Alexander Hellinga, and Whisky Run Golf Club Ltd. Wignell Municipal Drain City of Port Colborne Motion Order
Wignell Municipal Drain Motion Order 2025 AFRAAT 01
STATUTE:
Drainage Act
HEARING:
February 3, 2025
DATE OF DECISION:
February 11, 2025
010Wignell24
NEUTRAL CITATION:
2025 ONAFRAAT 01
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 Cynthia and Robert MacNeil, Jack, Charline, Nathan and Alexander Hellinga, and Whisky Run Golf Club Ltd. under section 48(1) of the Drainage Act and under Section 54 of the Drainage Act, with respect to the Wignell Municipal Drain in the City of Port Colborne.
AND IN THE MATTER OF a motion to be held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Cynthia and Robert MacNeil Jack, Charline, Nathan, and Alexander Hellinga Whisky Run Golf Club Ltd Appellants
– and –
City of Port Colborne Respondent
Self-Represented Self-Represented
Represented by Hendrik Nieuwland Represented by T. Richardson
Heard: February 3, 2025, via Zoom
Before: Christine Greydanus, Vice Chair; John Johnston, Vice-Chair and Dave Fawcett, Member
Parties Present:
Jack Hellinga, Appellant Thomas Richardson, Counsel for Port Colborne Alana Vander Veen – Drainage Superintendent Jessica Beaupre – Deputy Clerk C. Banting – Manager of Environmental Services Paul Marsh P. Eng., Engineer that wrote the report Hendrik Nieuwland, Counsel – Whisky Run Golf Club, Appellant
MOTION ORDER
Background
The motions were brought by the Respondent City of Port Colborne seeking the dismissal of Jack Hellinga, Charline Hellinga, Nathan Hellinga and Alexander Hellinga (the “Hellinga Family”) appeals under the Drainage Act (“the DA”). The first Hellinga Family appeal is pursuant to subsection 48(1) of the DA. The second Hellinga Family appeal is pursuant to subsection 54(1) of the DA.
A Pre-Hearing Conference was held December 12, 2024 electronically.
The Wignell Municipal Drain Report for the City of Port Colborne (“the Report”), dated February 9, 2024, was prepared by Paul Marsh, Professional Engineer of EWA Engineering Inc. The Report was prepared after the City of Port Colborne appointed drainage engineer, Paul Marsh P. Eng., in accordance with the DA under Section 4 and 78 to prepare an Engineer’s report for the Wignell Drain, Michener Drain, and the Port Colborne Drain within the City of Port Colborne.
Hellinga Family
- Jack Hellinga provided evidence and arguments for the Hellinga Family at the motion hearing.
s. 48(1) Appeal
The Hellinga Family s. 48(1) appeal dated July 24, 2024, was brought on the grounds that the proposed realignment of the Wignell Drain is being proposed without a petition by the landowner. The Hellinga Family s.48(1) appeal further objects to the drain realignment and its accommodation of the anticipated expansion of the quarry.
The Hellinga appeal further provided reasons for rejecting the Wignell Drain North Tab Realignment. The reasons given included the expansion of an aggregate removal pit and the licencing thereof, wetland encroachment and the safety of drainage works using road allowances.
Mr. Hellinga asserted that the s. 48(1) appeal was brought on the basis that there are design factors of the drainage works that he rejects. In Mr. Hellinga’s opinion the design factors could be appealed and noted that there are decisions from the Tribunal that he would reference at a Tribunal hearing that support his position. Mr. Hellinga did not provide these decisions for the Tribunal at the motion hearing.
s. 54(1) Appeal
- In the Hellinga Family’s s.54(1) appeal, dated August 19, 2024, under the heading “Details of Application and Relief Being Sought from the Tribunal” it states:
“The engineer’s report is recommending repair of the outlet floodgates, which were not part of the municipal drain prior to this report. The structure and pumping accommodations were commissioned and paid for by the (previous) owners to facilitate the previous market gardening uses. The gates and pumps are only of benefit to the low-lying properties, general south of the Friendship Trail. The market gardening is no longer active as the properties were contaminated with nickel and other heavy metals from Inco/Vale. Since the cost of the structure and potential pumps are newly assessed to the drainage area, the work should have been requested by petition of the majority of the land owners of the watershed, and this process was not followed.”
The s. 54(1) Hellinga appeal was brought on the grounds that the work and changes to the Wignell Municipal Drain should have been requested by Petition of the majority of the landowners of the watershed.
Mr. Hellinga maintained that the original assessments were not the result of a Petition. However, the C.J. Clarke Engineer’s Report was petitioned by a select number of property owner that would (and did) benefit from the installation of the break wall/ gates. Those property owners, Mr. Hellinga maintained, also paid for the initial installation of the break wall. Subsequent assessments may have assigned some of the maintenance costs to the upstream properties as liability, but 100 percentage of the total liability charge is inconsistent with the percentage of total charged for maintenance of the break walls at other Municipal Drain outlets in the City of Port Colborne.
Mr. Hellinga also asserted that his position is supported by Tribunal decisions. Mr. Hellinga did not provide any decisions for the Tribunal to review. He maintained that it was his intention to provide the case law at a hearing.
Mr. Hellinga did express a desire to be heard at the Tribunal hearing.
City of Port Colborne
s. 48(1) Appeal
The City of Port Colborne asserts that the July 24, 2025 subsection 48(1) appeal of the Appellant Hellinga Family does not meet any of the criteria as set out under subsection 48(1) of the DA.
Subsection 48(1) of the DA reads as follows:
“48 (1) Any owner of land or any public utility affected by a drainage works, if 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.
may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.”
- Subsection 78(1) of the DA reads as follows:
“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.”
- Subsection 78 (1.1) of the DA is as follows:
“78 (1.1) The projects referred to in subsection (1) are:
Changing the course of the drainage works.
Making a new outlet for the whole or any part of the drainage works.
Constructing a tile drain under the bed of the whole or any part of the drainage works.
Constructing, reconstructing or extending embankments, walls, dikes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.
Otherwise improving, extending to an outlet or altering the drainage works.
5.1 Improving or altering the drainage works, if the drainage works is located on more than one property.
Covering all or part of the drainage works.
Consolidating two or more drainage works.”
The relocation of the northerly end of the Wignell Drain has been recommended in the Report pursuant to subsection 78(1) and (1.1) in that the recommendation is to change the course of the drainage works as provided for in paragraph 78(1.1) (1). Therefore, a petition is not required as purported by the Hellinga appeal, for the realignment of the north segment of the Wignell Drain.
Port Colborne further notes that the Hellinga property is not within the assessed upstream lands for re-aligning the Wignell Drain as a s. 78 improvement and that if the Hellinga Family appeal were granted and the existing Wignell Drain were maintained, it would increase the cost for all parties within the watershed upstream of Station 5+975, but not for the Hellinga Family as their property is not upstream of the proposed works.
s. 54(1) Appeal
Port Colborne advised that the flood gates have been part of the municipal drain since they were recommended in the Report on Wignell drain, Township of Humblestone, 1969 written by C.J. Clarke and Associates Engineering Ltd. (the 1969 Report”) dated June 1969.
The flood gates have been assessed as part of the municipal drain since the passage of the by-law supported by the engineer’s report dated June 1969.
The original 1973 fixed pump was assessed only to three property owners benefitting from a pumping operation. The fixed pump was removed from operation on or about 2012. It is now proposed that a portable pump be deployed when owners request it within the Wignell Drain. The cost of a portable pump will be borne by the person or persons requesting pumping of the drain. This is similar to the original fixed pump which was paid for by the three landowners for the market garden lands.
This work is being undertaken pursuant to the DA, subsection 78(1) and (1.1). The works described in subsection 78(1.1), paragraphs 2 and 4 are:
“2. Making a new outlet for the whole or any part of the drainage works,”
and
“4. Constructing, reconstructing or extending embankments, walls, dikes, dams, reservoirs, bridges, pumping stations or other protective works in connection with the drainage works.”
- The City of Port Colborne argued that pursuant to s. 78(1) and (1.1) of the DA, no petition is required for the proposed improvement works using Section 78 of the Drainage Act for the existing outlet flood gates.
Conclusions
The Tribunal concluded that the Hellinga Family appeal made pursuant to subsection 48(1) of the Drainage Act does not meet any of the criteria set out in subsection 48(1).
The Tribunal further finds that the City of Port Colborne did not require a petition from landowners to proceed with the proposed improvements to the Wignell Drain.
The Hellinga Family will be able to contribute to the hearing proceedings with the status of a Participant pursuant to the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal Rule 8.07 Role of a Participant, as follows;
“A Participant in a Hearing may:
i. be a witness at the Hearing;
ii. be questioned by the Parties when acting as a witness;
iii. make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing; and
iv. upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests.
A Participant in a Hearing may not:
i. raise issues that have not already been raised by a Party;
ii. call witnesses;
iii. cross-examine witnesses;
iv. bring motions; and
v. claim costs or be liable for costs.”
Order
- After careful consideration, the Tribunal orders;
a. The appeal of Jack Hellinga, Charline Hellinga, Nathan Hellinga and Alexander Hellinga pursuant to subsection 48(1) of the Drainage Act dated July 24, 2024 be dismissed without a hearing;
b. The appeal of Jack Hellinga, Charline Hellinga, Nathan Hellinga and Alexander Hellinga pursuant to subsection 54(1) of the Drainage Act dated July 24, 2024 be dismissed without a hearing.
c. Jack Hellinga, Charline Hellinga, Nathan Hellinga and Alexander Hellinga may contribute in the role of Participants.
Dated at Petrolia, Ontario this 11th day of February, 2025.