Agriculture, Food and Rural Affairs Appeal Tribunal

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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Northland Estates Drain (RE) [Decision]

City of Port Colborne Lucille and Richard Grant Joe Piazza, 857697 Ontario Ltd. Marcelo Hernandez, 260261 Ontario Inc.

STATUTE: Drainage Act, R.S.O. 1990, c. D.17

HEARING: May 20 & 21, 2025 via Zoom

DATE OF DECISION: June 13, 2025

015Northland24

NEUTRAL CITATION: 2025 ONAFRAAT 13

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

AND IN THE MATTER OF an appeal submitted by Lucille and Richard Grant of Port Colborne, Ontario under Section 48(1) of the Drainage Act with respect to the Northland Estates Drain in the City of Port Colborne.

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.

BETWEEN:

Lucille and Richard Grant Appellants

– and –

City of Port Colborne Respondent

– and –

Joe Piazza – 857697 Ontario Ltd. Party

– and –

Marcelo Hernandez, 260261 Ontario Inc. Party

Self-Represented Self-Represented Represented by Gerard Borean Represented by Adrian Frank

Heard: May 20 & 21, 2025 via Zoom

Before: Christine Greydanus, Vice-Chair, and John Johnston, Vice-Chair and David Fawcett, Member

Parties Present:

Lucille and Richard Grant, Appellants Alana Vander Veen, Respondent, Drainage Superintendent, City of Port Colborne Jessica Beaupre, Clerk, City of Port Colborne Brandon Widner, P. Eng., Spriet Associates London Limited, Engineer who wrote the Report Gerard Borean, Parente Borean LLP, Counsel for 857697 Ontario Ltd. Christina Presenza, Parente Borean LLP, Law Clerk Paul DeMelo, for Adrian Frank, Kagan Shastri LLP, Counsel for 260261 Ontario Inc.

TRIBUNAL DECISION

1The Agricultural Food and Rural Affairs Appeal Tribunal (“the Tribunal”) heard this matter virtually on May 20 & 21, 2025.

2This appeal by Lucille and Richard Grant pursuant to section 48(1) of the Drainage Act (“the Act”) concerns the Northland Estates Municipal Drain (“the Drain”) in the City of Port Colborne. The Engineer’s Report, dated August 14, 2024 (“the Report”) was prepared by Spriet Associates and was signed by Brandon Widner, P. Eng. (“the Engineer”).

3The Report was completed under section 4 of the Act. The work was petitioned by one of the affected land owners. The Drain has a total watershed area of approximately 45 hectares. The area requiring drainage for the Northland Estates Drain is described as the land in the north half of Lot 31, Concession 2.

Issues

4The issue before the Tribunal is, should the Drain be located further to the west of the lot line of Lots 31 and 32 to further reduce the possibility of damaging the roots of boundary trees located at 53 Coronation Drive?

Lucille and Richard Grant, Appellants - Evidence and Arguments

5Lucille and Richard Grant’s property is at 53 Coronation Drive, Plan 61 Lot 24 NP820. The parcel of land shares a boundary with land owned by 857697 Ontario Ltd., is 0.35 hectares in size.

6Lucille Grant is a retired school teacher and Richard Grant retired from ship maintenance. Although both are very keen on the preservation of their trees, neither, admittedly, possess any formal training in arboriculture.

7The Grants appealed due to their dissatisfaction with the Report, citing the need for the drainage works to be modified on the grounds that their proposed modification would avoid the loss of approximately 80 mature hardwood trees, all greater that 10 inches in diameter and to further avoid damage to trees on homeowner’s properties.

8Lucille Grant wished to rely on a Tree Appraisal Report that had been prepared by Davey Resource Group. Ms. Grant was under the impression that this report could be entered in as evidence without the author of the report being in attendance at the hearing, being qualified as an expert witness or available for cross examination. The Tribunal agreed to hear the report and to weigh it accordingly.

9Amongst other things, the report provided a listing of 24 trees on the Grant property, assigned a value to each of the trees and offered the opinion that the cutting of tree roots close to the trunk of the tree could result in damage to the tree.

10The Davey report provided conclusions and recommendations. The first provided an amount for compensation to be paid to the Grants for the damage to the trees should it occur; the second recommendations, was to move the ditch 3 meters west of the boundary fence.

11The Grants request for relief is that the drain be moved 3 meters further to the west of the boundary fence in order to provide more assurance that the boundary trees would not be damaged and the trees on their land would not be disturbed.

12The Grants acknowledge that the west portion of their lot is wet and often has standing water. It was their assertion that they do not need this drain and believe that the neighbouring farm land should be further encroached on in order to assure the preservation of their trees.

13The Grants provided no evidence the impact of moving the drain 3 meters west would have on the drainage of the residential properties and conceded that additional neighbouring farm land would not be accessible for cultivation.

14The Grants cited Section 10 of the Forestry Act

Boundary trees

10. (1) An owner of land may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands.

Trees common property

(2) Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands. .

Offence

(3) Every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act.

15On cross examination, Ms. Grant acknowledged that at a meeting of landowners at the public works building early in the process of designing the drain, the landowners were presented with several proposals for the location of the new drain but the landowners rejected them. The proposals that they rejected were the drain being located where the current private swale / ditch runs through the back yards of the homes on Coronation Drive and Merritt Parkway locating the drain directly along the boundary of the properties between the farm land owned by 857697 Ontario Ltd. and the residential lots Coronation Drive.

City of Port Colborne’s Evidence and Arguments

Brandon Widner, P. Eng., Spriet Associates

16Bandon Widner, a professional engineer, prepared the Report. Mr. Widner was qualified as an expert witness on behalf of the City of Port Colborne.

17Mr. Widner provided an overview of the Drain and the Report. The Report was prepared pursuant to section 4 of the Act. The work was initiated by a petition signed by one of the affected landowners.

18The history of the drain relates back to the Eagle Marsh Drain Extension that was originally constructed pursuant to a report submitted by J.R. Scott, P. Eng. dated January 1955 and consisted of 2,655 lineal meters of open drain improvements from Highway No. 3 on the Township of Wainfleet, Lot 2, concession 2 which headed north-easterly into the City of Port Colborne (former Humberstone Township), to its head in the east part of Lot 31, Concession 2.

19A site meeting that was held with respect to the project and through discussion later with landowners the following was reported,

a. The owners of 260061 Ontario Inc. indicated that they intend to develop their lands in the future and require a legal outlet for a future storm water management facility.

b. Multiple owners who reside on Coronation Drive and whose properties back onto the 30/31 Lot line were in attendance and provided concerns with drainage in the rear of their lands and any future construction of a drain in the rear of their lots,

c. The owner of 857697 Ontario Ltd. was also in attendance and provided input with regards to a future work on their lands. Initially the owners of 857697 Ontario Ltd. were adamant that they did not want the drain located on their land.

20A field investigation and survey were completed, and the following findings were noted,

a. That the existing drain in the residential lands has been enclosed in some locations and multiple sheds have been constructed over or in close proximity to the drain making any improvements difficult.

b. That there are many large trees along the lot line of Lots 31 and 32.

21The rear yard surface swale on the west side of the Coronation Drive properties drains south to the Eagle Marsh Drain Extension and also has sheds, fences and many large trees along its path in the back yards of the residential properties.

22Of the three proposed locations of the Drain, the property line between the residential lots and the farmlands; in the back yards of the residential properties in the path of the existing privately constructed swale or just beyond the property line totally on the farmland of 857697 Ontario Ltd.; it was determined that the best location was on the farmland of 857697 Ontario Ltd.

23The locating of the drain 0.60 meters from the boundary affords the residential property owners on Coronation Drive and Merritt Parkway drainage for their properties, thereby satisfying concerns of affected landowners.

24The preliminary design, cost estimates and assessments were prepared and circulated to the affected landowners to review the findings and preliminary proposals. Further input and requests were provided by the affected landowners at that time and at later dates. Based on the proposed design it was decided to proceed with the report.

25Allowances under section 29 and 30 of the Act were provided to the owner of the farmland to compensate for damages to the land and crops and for the right-of-way that results in the loss of land due to the open ditch, the construction of the ditch, repair and future maintenance of the drainage works.

26The Engineer noted that under section 30 of the Act, there are provisions to provide the appropriate compensation for damage to trees.

27During cross examination, the Engineer was questioned about the concerns about moving the drain further west of the boundary onto the agricultural lands. The Engineer stated that the concerns are, first, the further loss of agricultural land; second, the further the drain is from the residential lots the more difficult it is for the residential lots to use the drain; and third, it would be essentially giving the land between the boundary and the drain to the residential land owners as it would no longer accessible by the farmer for any purpose. He further stated that at this time the boundary is essentially an over-grown fence line and that the future use of the property is for development, so the best location for the drain is where it affects the least amount of land.

28In summation, the Engineer stated that there was opposition to all of the proposed locations for the drain and he chose, in his opinion, the location that provided the least amount of interference and harm with the greatest amount of benefit to the landowners.

857697 Ontario Ltd., Arguments

29857697 Ontario Ltd. is agreeable with the Report and accepts the testimony of the Engineer.

30857697 Ontario Ltd. argued against the Davey report being given any weight, citing the lack of procedural fairness due to the absence of the authors of the report being present at the hearing for questioning by all parties and being properly qualified as expert witnesses in order to give opinion evidence.

260261 Ontario Inc., Arguments

31260261 Ontario Inc. argued against the Davey report being admitted as evidence. They cited the lack of the expert being present at the hearing and the need to have an opportunity to cross-examine the report’s author.

32260261 Ontario Inc. noted that it is necessary to balance the private and public interest, and that there are residential land owners who require and want improved drainage in their rear yards.

33260261 Ontario Inc. stated they were in favour of the Report.

Findings and Analysis

34On examination of the drawings from January 1955 of the Eagle Marsh Drain Extension, the Tribunal notes that the lot west of Lot 31 is Lot 32. Lot 30 is located to the east of West Side Road. The farmland currently owned by 857697 Ontario Ltd. is located at Lot 32 Concession 2. Therefore, the lot line that is in question and that has many large trees is between Lots 31 and 32. Schedule C – Assessment for Maintenance at page 8 of the Report, identifies the 857697 Ontario Ltd. property as being located at Concession 2, Pt. Lot 31.

35The Tribunal recognizes the Grants desire to ensure the health and longevity of as many mature trees as possible. However, the Tribunal finds that even if the Davey report was accepted as opinion evidence, it does not provide persuasive evidence that the mature trees will not survive the construction of the proposed Drainage works.

36The Tribunal does not agree with the Grants’ argument that the Forestry Act would make the construction of a municipal drain under the Drainage Act an offence without both landowners’ consent if boundary trees are injured or destroyed. The Drainage Act allows for entry onto lands and for construction to occur without a landowner’s consent, and provides for compensation for property damage, including expressly providing for allowances for damage to trees. The Act provides for an easement for the construction of drainage works and for future access. Thus, the Drainage Act clearly authorizes and accounts for the destruction of trees without the consent an owner, including trees on the boundary between two properties. This lawful authorization and easement must be considered when interpreting the Forestry Act.

37The Tribunal accepts that, first, the Engineer considered locating the drain in the existing swale and rejected this option as it would impact many residential properties, removing and disturbing trees and backyard sheds; and that second, the Engineer considered locating the drain on the boundary between Lots 31 and 32, which would have required the clearing of all the trees in the fence row, however would have been an equitable use of land between the property owners; and third, that the Engineer opted for locating the drain on the farmland, disturbing some trees, no residential lots and simplifying the drain construction, as only one landowner would be impacted. The Tribunal accepts the evidence of the Municipality and of the Engineer that the Drain has been located in the least intrusive location taking into consideration the current and future use of the land.

38The Tribunal finds that given the evidence presented at this hearing, appropriate consideration has been given to the boundary trees and the least intrusive location for the Drain has been proposed.

Conclusion

39The appeal is dismissed.

40The Engineer is to amend the Report to correctly identify the boundary lot line to the west of Lots 31 as the 31/32 lot line.

41The non-administrative costs of the Municipality with respect to this appeal shall form part of the costs of the drainage works.

42There shall be no other order for costs and all parties are responsible for their own costs.

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.