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:

Frank Szeder Drain (RE) [Final Decision] Frank Szeder Jr. and the Szeder Estate Township of Emo and Township of La Vallee

Frank Szeder Drain (RE) [Final Decision]

STATUTE:

Drainage Act

HEARING:

March 24-26, 2025

DATE OF DECISION:

July 7, 2025

010FrankSzeder22

NEUTRAL CITATION:

2025 ONAFRAAT 11

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF the Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) by Frank Szeder Jr. and the Szeder Estate under Section 48 of the Drainage Act (the “Act”), with respect to the Frank Szeder Drain located in the Townships of Emo and La Vallee.

AND IN THE MATTER OF an Electronic Hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.

BETWEEN:

Frank Szeder Jr. Szeder Estate (Stefan Szeder, Estate Trustee) Appellant

– and –

Township of Emo and Township of La Vallee Respondent

Represented by Paul Courey Represented by Candace Hilchuk

HEARD: March 24-26, 2025 via Zoom

Before: Steve Moutsatsos, Vice-Chair, Don McNalty, Vice-Chair, Dave Fawcett, Member

Appearances:

Stefan Szeder, Appellant

Paul Courey, Counsel for Appellant

Candace Hilchuk, Counsel for Respondent

John Kuntze, P. Eng., Engineer that wrote the report

Crystal Gray, CAO, Township of Emo

DECISION

Background

1. The report of the K. Smart Associates Limited dated March 4, 2022 (the “Report” or the “March 4, 2022 Report”), and the affidavit evidence provide a summary of the history of these proceedings to date.

2. On January 31, 2008, the Township of Emo (“Emo”) received a Section 4 petition from Frank Szeder (the Report does not specify whether this was Junior or Senior) noting that properties in Sections 35 and 36 required drainage. On March 3, 2008, Emo Council appointed K. Smart Associates Limited to prepare a report on the Szeder petition.

3. On April 9, 2008, The Township of La Vallee (“La Vallee”) received a Section 4 petition from Frank Szeder (again the Report does not specify whether this was Junior or Senior) noting the properties in Section 31 required drainage. On May 13, La Vallee Council appointed K. Smart Associates Limited to prepare a report on this Szeder petition and directed that the report should be combined with the report being prepared for the Szeder petition in Emo.

4. No report was produced until Szeder initiated an Application to the Drainage Referee resulting in an order that the Engineer file his report with the Clerk by June 30, 2021.

5. The Report, authored by John Kuntze, P. Eng. (the “Engineer”), was submitted to Emo in July 2021. It was considered by Emo council on September 28, 2021, pursuant to a further order of the Drainage Referee requiring council to consider the Report on that date. Emo Council referred the Report back to the Engineer on January 26, 2022, for reconsideration.

6. By further order of the Drainage Referee on February 10, 2022, the Engineer was ordered to compete the revised report by February 25, 2022. The revised report was delivered to the Clerk of Emo on March 4, 2022.

7. On April 6, 2022, Emo Council adopted the revised report by Provisional By-law.

8. Szeder’s motion for leave for the late filing of the Notices of Appeal under Section 48 of the Drainage Act R.S.O. 1990, c. D. 17 (the “Act”) was granted pursuant to an order of this Tribunal dated April 17, 2023 (the “Late Filing Appeal”).

9. A motion for leave to late file Notices of Appeal under Section 54 of the Act was dismissed.

10. A motion was brought by the moving parties, Frank Szeder Junior and Stefan Szeder, as Estate Trustees of the Estate of Frank Szeder Senior (hereafter called “Szeder”) for an order declaring:

a. An Order declaring that the Responding Party lacked jurisdiction to refer to the report of K. Smart Associates Limited, per John Kuntze P. Eng, dated June 30, 2021, back for reconsideration because the matter was then before the Referee.

b. An Order declaring that the report that is the subject of the appeal herein is the report of K. Smart Associates Limited, per John Kuntze P. Eng. Dated June 30, 2021.

c. An Order declaring that the report of K. Smart Associates Limited dated March 4, 2022, is of no effect.

11. The Tribunal hearing for the motion described above was held on March 22, 2024, and the Tribunal found that Emo had the full right and authority to order the reconsideration of the Report by the Engineer and in doing so did not have any improper motive or purpose and further the Tribunal dismissed the Szeder motion in its entirety.

12. The matter before the Tribunal would be in regard to a Section 48 appeal submitted by the Frank Szeder Estate and Frank Szeder Jr and it was noted that Stephan Szeder would represent his brother Frank Szeder Jr and the Estate of Frank Szeder.

13. An appeal under Section 48 by Michael Sheppard was not brought forward to the Tribunal through any evidence or witnesses.

Issues:

14. The issues before the Tribunal are:

a) Whether the design of the proposed drain is cost beneficial;

b) Whether the drain as proposed is the correct drain to construct;

c) Whether the duration of time from the submission of the petition to the present is too long resulting in unnecessary cost and expense to the Appellant; and

d) Whether the delay in constructing the drain has resulted in increased costs and the project is no longer financially viable.

Evidence:

The Tribunal summarizes the evidence for the Appellants as follows:

15. Stephan Szeder is representing the Estate of Frank Szeder Sr as Estate Trustee as well as his brother Frank Szeder Jr as an authorized representative.

16. Stephan Szeder’s parents immigrated to Canada in 1957 and created a farm operation in subsequent years which was originally a cow/calf operation, but that part of the operation was wound down in 1990.

17. The Szeders own approximately 1000 ac within the watershed of which 30% is productive and the balance of the land requires improvement and drainage.

18. The Szeder brothers have taken over the farm but have needed to find off farm work and noted that he (Stephan Szeder) operates an excavation business and a sawmill.

19. A petition for improved drainage was filed in 2008.

20. It was acknowledged that the Szeders asked for a delay in work on the Szeder Drain in favour of placing priority on completion of the Chapple Drain where the Szeders also owned land in the period of 2012 to 2014, the delay being approximately 16 months.

21. Kuntze asked Emo for clarification on some matters in October 2016 but there appeared to be no response. There were regular communications between the Szeders and Kuntze during this period.

22. There was little progress from 2016 to 2020 and this cumulated into a request to the Ontario Drainage Referee in 2020 to get involved which resulted in an Order for report to be completed by June 30, 2021. Such report was filed with the Township in July 2021.

23. The meeting to consider the Engineer’s report was held on September 26, 2021.

24. The report was later referred back to the engineer at the engineer’s request. The Ontario Drainage Referee ordered that the revised report be completed by February 25, 2022, with the revised report being dated March 4, 2022. It was apparent that the Road Superintendent had noted concerns regarding the location of the drain relative to the road allowance although there were no concerns in this regard raised by the Township at any of the previous meetings.

25. In the early stages there were discussions about the anticipated cost of the work to the Szeders which was approximately $37,000, net cost after allowances and grant.

26. The overall cost of the project was much higher and the percentage share to Szeders increased in the March 4, 2022, report and there is some uncertainty about the availability of the 2/3 grant for the Szeder land.

27. Szeders do not like the Report as the costs have increased due to road crossings, redundant ditches, legal surveys and the cost of engineering to revise the Report.

28. The percent cost for engineering is significantly greater for the Szeder Drain than the average for other drains in Ontario.

29. The Szeders position is the Township was complacent in moving the project forward with no efforts to advance the project until forced to do so by the Order of the Referee.

30. Discussions had occurred with Kuntze regarding an alternate design which would lower the cost and this included an email of March 2, 2025, which included drawings and profiles of an alternate design which would outlet the Szeder Drain into the Fisher Drain (“2025 Design”).

31. Szeder was of the opinion that the Fisher Drain could accommodate the increased flows.

32. Szeders would accept the alternative design and believed that Kuntze would also accept the design which would reduce the cost by approximately $100,000.

33. Szeder had undertaken a cleanout of the Drain on the east side of Aylsworth Road, but Emo was not happy with the work and required the cleanout work to stop by a letter dated November 13, 2019.

34. Efforts had been made by Kuntze to determine any environmental issues and the Ministry of Natural Resources confirmed that no work permit or authorization was required for this project.

35. Although the 2025 Design would result in a corner of the Szeder property being severed which was not ideal, they would still be agreeable to the alternate design to procure improved drainage.

36. Szeder expressed that the engineering cost should be no more than 29% of the construction cost to be comparable to other drains and the balance should be paid by Emo and K. Smart

37. Szeder confirmed that the family still intend to farm the land.

38. Szeder confirmed he had a cordial relationship with the engineer throughout the process and had input with respect to the proposed drainage work.

39. The Szeder family still wish to improve their land to make it more productive such that a viable farm operation could be established.

The Tribunal summarizes the evidence of the Engineer as follows:

40. Kuntze noted he had been a Professional Engineer since 1979 and has worked for K. Smart since 1977. Further his work has almost been exclusively on Drainage Act matters.

41. Kuntze has provided evidence before the Ontario Drainage Tribunal and Ontario Drainage Referee, represented appellants and served as a Drainage Superintendent.

42. As President of K. Smart and head of the drainage Department since 2002 Kuntze was responsible for any staff assigned to this project. Although Chris Allen, P. Eng was the designated project engineer after K. Smart appointment in 2008, Kuntze became the project engineer in December 2014.

43. Kuntze was the author of the June 30, 2021, and March 4, 2022, reports.

44. Kuntze reiterated the history of the existing drains in the area as described in his report including the Fisher Drain (1969) and Fisher Drain (1981).

45. The meetings required by the Act were described as well as supplementary meetings regarding the Szeder Drain.

46. Kuntze confirmed that municipal staff including the Road Superintendent participated in the meetings regarding the Szeder Drain and it was unclear whether the municipal policy to not place municipal drains within the road allowance was brought to the engineer’s attention early in the process.

47. The period where the work on the Szeder Drain was put on hold in favour of the completion of the Chapple Drain was described further where the hold was started by communication on July 11, 2012, and work was able to commence again in 2014.

48. Kuntze’s dealings were with Stephan Szeder who represented his father, Frank Szeder Sr and his brother Frank Szeder Jr.

49. Considerable work done on field surveys and investigations in 2008 to 2010. Survey was difficult due to the woodland and poor lines of sight. Szeder was retained to clear some areas to facilitate the field surveys and investigation.

50. After the hold on work on the Szeder Drain initiated by Szeder, work started again in earnest in 2016.

51. In 2016 one of the key components for the new drain was improved drainage along Aylsworth Road, a desire of the Szeders to have the drain on the perimeter of their property and the need for improvements to the Fisher Drain. Additional GPS field survey was completed along Aylsworth Road.

52. Additional GPS survey in 2016 included field data along Aylsworth Road. Further and later GPS survey included a portion of the Drain which Szeder had excavated on his own and the profile of the excavated ditch showed deficient grade control. It was noted that the work undertaken by Szeder to cleanout a ditch was upstream of the Fisher Drain (1969).

53. Some cross sections were referenced to show the location of the existing and proposed ditches relative to the existing road allowance.

54. Kuntze reported that he was satisfied that the petition for drainage was valid.

55. There were numerous discussions with Szeder to resolve the alignment of the proposed drain and in particular to locate the drain to the perimeter of their property.

56. Kuntze noted that there was provision in the report for additional land clearing and field survey to prepare a final profile for the drain and ensure that the drain was in the correct alignment. He also identified that a survey by an Ontario Land Surveyor may be required.

57. Generally, the land slopes west and south with an approximate gradient of 0.025 % The Szeder Drain will outlet into the Fisher Drain (1981) which he considered to be a sufficient outlet. The watershed area for the Fisher Drain (1981) is different from the watershed determined for the Szeder Drain.

58. The area shown as a “stippled” pattern on the Drainage plan is designated as Wetlands in the Emo Official Plan but is not designated as a Provincially Significant Wetland.

59. The attempt to determine any agency approvals prior to completing the reports were described with the result determined that no Department of Fisheries and Oceans or Ministry of Natural Resources approvals were required.

60. A memo was sent by Kuntze on January 10, 2022, to Doug Brown, Interim CAO, Township of Emo (“Exhibit 10”) regarding the realignment of the proposed Drain and the referral back for such a revision. It was clarified that Szeder did not ask for the revision of the Drain location as presented in the March 4, 2022, report.

61. Clarification was provided relative to the location of the drain as set out in the 2021 and 2022 reports and in particular the location relative to the road allowance.

62. Kuntze noted that moving the drain to the west side of Aylsworth Road was the right thing to do for overall watershed drainage and seemed to be supported by the property owners.

63. The cost of engineering as set out on Page 10 of the March 4, 2022, report was summarized.

64. The availability of ADIP grants will impact the cost of the drain to the property owners. Although there are no Provincially Significant Wetlands within the watershed, there are lands designated as wetlands in the Township’s Official Plan. Kuntze made efforts through communications with the Director to clarify if the 2/3 grant applicable to agricultural lands in Northern Ontario would be available. Confirmation on this issue could not be attained and is dependent on the application process, the provincial budgets and the discretion of the Ministry.

65. Kuntze concluded his presentation on the March 4, 2022, report stating that the drain as proposed in the report was a good solution and noted that no concerns were raised at the meeting to consider the report regarding the drainage work as proposed.

66. After the initial appeals to the Ontario Drainage Tribunal were filed, Szeder presented an alternate solution where the Szeder Drain would outlet into the Fisher Drain (1969) (“2025 Design”).

67. K. Smart undertook some additional field survey and prepared profiles for the 2025 Design and concluded that it would be possible without significant changes to the Fisher Drain (1969) but would require a revised engineer’s report.

68. The 2025 Proposal would reduce the length of the drain by approximately 20% and as all the watershed flows go through the Fisher Drain and associated culverts now, the Fisher Drain (1969) would be a sufficient outlet.

69. Kuntze’s final statement with respect to the 2025 Design was that it was “doable”

70. Some discussion was provided regarding the backfilling of existing road ditches and the benefits to the municipality.

71. The time dockets for K. Smart’s staff were reviewed including the approximate time entered for the Szeder Drain in each year.

72. Kuntze noted that the cost of engineering as summarized by the Ministry is based on comparing the cost of engineering to the total cost of the project and not the construction cost alone.

73. Kuntze acknowledged that there were no specific requests from Emo for the completion of the report and there was no action taken under Section 39 of the Act by Emo.

Analysis and Findings:

74. The matter before this sitting of the Tribunal is an appeal under Section 48 of the Act. The grounds for such an appeal include:

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 the grounds stated; and

c. The compensation or allowances provided are inadequate or excessive.

75. The Respondent’s position relative to the matter before the Tribunal included:

a. Clarification that the matter is a Section 48 appeal and therefore does not deal with assessments; and

b. The March 4, 2022, report is defendable and has followed the process required by the Act. Emo is looking for finality regarding this matter with no further delays.

76. The appeal before the Tribunal relates to a Section 48 appeal relative to the final engineer’s report as prepared by John Kuntze, P.Eng. of K. Smart and Associates dated March 4, 2022.

77. No financial analysis evidence was submitted during the hearing relative to the potential benefits from the proposed drainage work compared to the cost of the work as set out in the engineer’s report.

78. There was no evidence submitted relative to the compensation or allowances as set out in the March 4, 2022, engineer’s report.

79. No evidence was provided during the hearing which indicated there were flaws in the design of the work proposed in the March 4, 2022 engineer’s report or that the proposed work would not provide improved drainage to the drainage area as requested by the original petitions to Emo and the subsequent petition to La Vallee.

80. The Appellant set forth that it had been approximately 17 years to date since the submission of the petition for drainage to the hearing before this Tribunal panel alleging that this duration of time impacted the financial viability of the project. No specific evidence was submitted with respect to the increased cost of the work relative to the benefits of the proposed work.

81. As it has been approximately 3 years since the passing of the Provisional By-Law for the Szeder Drain incorporating the March 4, 2022, report and a portion of 2 years delay was initiated by the appellant for the completion of the Chapple Drain with the concurrence of K. Smart and Emo, then the time period being the responsibility of K. Smart/Emo is more properly noted as 12 years.

82. Based on the evidence submitted by the witnesses and the time dockets entered as exhibits, it appears to the Tribunal that there were extended periods of time where little progress was made on advancing the project and consequently the time period of 12 years as reduced from 17 years is still excessive.

83. It is apparent that Emo did not place any pressure on the engineer to complete the report and noted that the timelines for the submission of the final Engineer’s reports dated June 30, 2021, and March 4, 2022, were established by the Ontario Drainage Referee as a result of submissions by the Appellants.

84. The municipality has the ability to use the provisions of Section 39 of the Act to facilitate the production of a report but are not obligated to do so.

85. Although both the June 30, 2021, and March 4, 2022, reports were a few days late, it is noted the Appellants did not include that as part of their appeal before the Tribunal as the limited days of delay were not consequential.

86. Considerable discussion during the hearing centered around the location of the proposed drainage work relative to the road allowance and Emo’s policy to have municipal drains located off the road allowance. At times it was unclear if this was a driver for the referral of the June 30, 2021, report back to the engineer to implement this policy concern into the March 4, 2022, report. The Tribunal’s final interpretation is that any proposed drain work in both reports was in fact in accordance with the municipal policy and the revision was to implement other drainage improvements.

87. It is apparent to the Tribunal that much of the work related to the alternate proposal of discharging the Szeder Drain directly into the Fisher Drain (1969) including the preparation of drawings and discussions between Kuntze and Szeder occurred after the appeals were filed to the Tribunal and just prior to this hearing.

88. It is clear that the implementation of the alternate proposal of discharging the Szeder Drain directly into the Fisher Drain (1969) would require a new engineer’s report which would need to follow the process for any new report as required by the Act including an opportunity for the property owners to hear a presentation on the report, the passing of a provisional By-Law and an opportunity for appeals regarding the proposed work and allowances as well as appeals to individual assessments. This would be the case regardless of whether the Tribunal retained jurisdiction over the process or provided an order to Emo to refer the report back to the engineer.

89. The Tribunal accepts that overall land improvements to the lands within the watershed cannot be achieved without improved drainage.

90. Although the Appellant preferred the drainage design and report of 2021 over the design proposal in the 2022 report and would accept the alternate 2025 Design, neither of these solutions can be implemented without a new engineer’s report.

91. It is noted that no evidence was entered to the hearing to support that the proposed work in the 2021 report was superior to that proposed in the 2022 report.

92. The appellant did not wish to proceed with the work as proposed in the 2022 report indicating there were flaws in the design. The content of the evidence provided during the hearing did not identify specific or technical flaws in the design and no evidence from an expert witness in this regard was submitted. Conversely the engineer who was qualified as an expert witness stated that the proposal set out in the March 4, 2022, report was a good solution which addressed the need for improved drainage.

93. Moving forward with the March 4, 2022 report would eliminate further delays to construction of the proposed drainage work and bring this matter to a full conclusion which would be beneficial to all parties.

94. The tribunal cannot support the appellant’s position that the total cost of engineering should be limited to approximately $50,000 although some limitation of the cost of engineering is warranted to reflect the length of time required to submit a final engineer’s report.

95. The Tribunal has discretionary authority regarding the cost associated with the proposed work including the cost of engineering.

Order:

96. That the appeal of Szeder under section 48 of the Drainage Act be dismissed and the Tribunal affirms the March 4, 2022, report as prepared by John Kuntze, P. Eng, of K. Smart and Associates with the provision of limiting the cost of engineering as described below.

97. The appeal of Michael Sheppard under Section 48 of the Drainage Act be dismissed.

98. The total cost of engineering services for the Szeder Drain including the preparation of the final engineer’s report, clearing for 2008 and 2009 survey work, attendance at the Council meetings to consider the reports and the Court of Revisions and engineering services during the construction phase will be limited to $108,130 including Net HST being the amount summarized in the June 30, 2021, report. Any fees for engineering services between June 30, 2021, and June 7, 2022, being the date of the Court of Revision for the March 4, 2022, report, are not to be charged to the project.

99. All engineering and legal fees for the representatives of the Township of Emo associated with this and previous hearings and motions before the Ontario Drainage Tribunal shall not be charged to the project or levied against the lands but rather shall be borne by the Municipality.

100. No order is made as to the costs of this hearing. The Parties are free to make submissions on the matter of the costs related to this hearing within 30 days of the date of this decision.

MOTION FOR COSTS RELATING TO THE DECISION OF THE TRIBUNAL DATED JUNE 26, 2024

Order

101. The Tribunal has considered the request by the Respondents for costs in connection with the motion brought by the Appellants relating to the issue of the Tribunal’s jurisdiction in this matter and its decision dated June 26, 2024. In the circumstances no award of costs shall be granted.

Released: July 7, 2025

This document is also available in French. Please contact the Tribunal at 519-826-3433 or by email at AFRAAT@ontario.ca to request a copy in French.

Ce document est également disponible en français. Veuillez contacter le tribunal au 519 826-3433 ou par courriel à AFRAAT@ontario.ca pour demander une copie en français.