Agriculture, Food and Rural Affairs Appeal Tribunal

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

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Cynthia and Robert MacNeil, Whisky Run Golf Club Ltd (RE) [Decision]

City of Port Colborne (RE) [Decision]

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

HEARING: April 22, 23, July 15, 22, and 23, 2025 via Zoom

DATE OF DECISION: December 30, 2025

010Wignell24

NEUTRAL CITATION: 2025 ONAFRAAT 15

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, 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: An electronic hearing to be held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.

BETWEEN:

Cynthia and Robert MacNeil, Whisky Run Golf Club Ltd Appellants

– and –

City of Port Colborne Respondent

Self-Represented Represented by: H. Nieuwland

Represented by T. Richardson

Heard: April 22, 23, July 15, 22, and 23, 2025 via Zoom

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

Parties Present: Cynthia and Robert MacNeil, Appellants Lou Nieuwland, Whisky Run Golf Club Ltd., Appellant Hendrik Nieuwland, Counsel Alana Vander Veen, Drainage Superintendent, City of Port Colborne Tom Richardson, Counsel Jessica Beaupre, Clerk, City of Port Colborne

Witnesses: David Bankert, Whiskey Run Golf Club Ltd. Witness Lenard Groetelaars, Whiskey Run Golf Club Ltd. Witness Lou Nieuwland, Whiskey Run Golf Club Ltd. Witness Marc Gaudet, Whiskey Run Golf Club Ltd. Witness Cynthia MacNeil, Appellant Witness Chris Lee, City of Port Colborne Witness Alana Vander Veen, City of Port Colborne Witness Paul Marsh, City of Port Colborne Witness

DECISION OF THE TRIBUNAL

1The Agricultural Food and Rural Affairs Appeal Tribunal (“the Tribunal”) heard this matter virtually on April 22, 23, July 15, 22 and 23, 2025.

2The appeals by Cynthia and Robert McNeil and by Whiskey Run Golf Club Inc. (“Whiskey Run”) were pursuant to section 48(1) and section 54 of the Drainage Act (“the Act”); with reference to the Wignell Municipal Drain (“the Drain”) in the City of Port Colborne; of the Engineer’s Report, dated February 9, 2024 (“the Report”) as prepared by Paul Marsh of EWA Engineering (“the Engineer”).

3The Report was completed under section 4, 76 and 78 of the Act. On July 23, 2018, the City of Port Colborne approved the appointment of the Engineer to prepare an Engineer’s Report for the Wignell Drain, Michener Drain and the Port Colborne Drain within the City of Port Colborne.

Paul Marsh, P. Eng., presentation of the Report

4Paul Marsh was qualified as an expert witness and sworn in. He provided an overview and evidence of the particulars of the Drain.

5The Wignell Drain outlets to Lake Erie and provides an outlet for two additional Municipal Drains, the Port Colborne Drain, lying to the west and the Michener Drain lying to the east of the Wignell.

6The City of Port Colborne commenced a review of the Wignell Drain in 2003 and retained Wiebe Engineering (“Wiebe”) to prepare a report. Wiebe ceased operations in 2008 without completing the work. In 2013, the City of Port Colborne retained the engineering firm, AMEC Foster Wheeler (“AMEC”) to continue with the engineer’s report. The report incomplete, AMEC abandoned the project in 2017.

7EWA Engineering was subsequently appointed by the council of the City of Port Colborne on July 23, 2018. At that time, it was determined that the work would be broken down into three reports, one for each of the Port Colborne Drain, the Michener Drain and the Wignell Drain.

8The design basis for the Wignell Drain improvements provides for a design that will not eliminate flooding for the lands within the watershed but will achieve an acceptable level of performance. Flooding as determined by the Niagara Peninsula Conservation Authority (“the NPCA”) is based on a 1:100-year storm with flood hazard lands being identified in the Report as determined by the NPCA.

9The Drain has been designed for a one in 5-year storm with a soil conservation 24-hour storm of 68.9 mm of rain fall in 24 hours. This is the standard that the Drain has been designed for with the banks full no flooding, to the outlet. This was determined based on the Lake Erie annual average surface elevation at the outlet of the Wignell Drain. The NPCA has established the 100-year flood line based on 121.4 mm of rain within a 24-hour period.

10When Lake Erie is higher than the annual monthly average, 174.15 meters, then the risk of flooding in excess of the calculated average top of bank is more likely. However, for any storm over the design criteria, there is a risk of a top of bank exceedance (flooding). An example given was the July 17, 2021 storm that produced 102mm with in 14.4 hours. In that instance it would be expected that the top of bank would be exceeded.

11Mr. Marsh stated that, exceeded is determined in the predictive model based on average bank height and thus actual exceedance occurs with both the MacNeil property and the Whiskey Run property along with all the other properties within the Wignell Bog lands that are lower in elevation than the stated 175.5 meters.

12The existing gate structures are used to block a surge or seiche event from Lake Erie inundating the Wignell Bog lands, which are the 1.9 km of municipal drain upstream of the gate structure. The gate structure is not used to control or address water levels when the Lake Erie elevation is consistently above normal or average, which is what was occurring during the period from 2019 to 2021 when the lake set record high levels for monthly average water surface elevations.

13In order to address the complaints from Ms. MacNeil and Mr. Nieuwland with regard to the responsiveness to opening and closing the gates in the past, the Report includes proposed improvements to automate the gate operation and to respond to the potential impact of the Lake without requiring an operator.

14In 1969, the Flood gates were assessed as a Benefit to the flat lands south of the Friendship Trail (then the CN Railroad tracks) in the Wignell Bog. The lands that were assessed by the City, for the cost of maintenance of the pumps in 2010, are all lands that are now owned by Vale Inco Limited (“Vale”). Vale operates a nickel smelter and owns much of the lands located south of the Friendship Trail. There was contamination discovered in the Bog lands linked to Vale and Vale purchased the land.

15The Drain from its construction in the 1850’s through to the 1930’s served to improve the cultivation of the low-lying bog lands for the purpose of cultivation. In 1969 it was recognized that the Lake had an adverse impact on the Wignell Drain during periods when Lake Erie experienced a storm surge or seiche causing the lake to rise and flow backwards into the low-lying areas that were farmed. At that time, it was determined that the installation of a control structure with 3 gates, that could be raised and lowered, would be used to prevent backflow from the Lake and improve the performance of the Wignell Drain.

16A petition from farmers adjacent to the Drain resulted in pumping being introduced to the Drain in 1973. A 100% of the cost of the pumping was assessed as benefit to the farmlands owned by the farmers who submitted the petition. All of the lands were between the Friendship Trail and the Lake. The schedule of assessment continued until the pumps were removed.

17It is the Engineer’s assertion that without pumping, the Wignell Drain has sufficient outlet, recognizing that during storms that combine both a seiche and significant runoff during periods of high lake levels, there is an expectation of flooding in the riparian lower reach lands. It is further noted that these three conditions, are not typical and are not reflected in the design storm model for the Drain Report. Compounding the impact of these conditions is the approximate 1/3 reduction in flow capacity through the control structure created by the concrete pump platform. This has been shown by NPCA to negatively impact upstream lands south of the Friendship Trail in any significant flow events (10-year, 25-year, 50-year and 100-year).

18The section 4 petition was brought by the Road Authority for sufficient outlet for Wignell Branches #2 and #3. The section 78 is for Drain improvements relating to the changes at the gates and the section 74 Maintenance is for the middle portion of the Drain.

19The Engineer in his Report recommended several drain improvements, including a) maintenance to ensure suitable channel design flows are achieved; b) a proposed gate automation project to reduce the response time for gate closing and opening settings so that less water flows backward and there is less impediment for water to flow out the outlet and c) an upper drain alignment change.

20The Report further identified several drain improvements with the following being key to the issues of the Appellants;

a. “1. A specific program of improvement for the Wignell Gate structure has been developed to ensure the gate’s continued function to prevent Lake Erie Seiche based flooding event. This includes sluice gate maintenance, replacement of existing motors with actuators, safety and security issues and flow monitoring. The preservation of the existing portable pumping deployment and abandonment of the centrifugal pump former centrifugal pump arrangement are identified.”

b. “5. Previous erosion protection works started in 2006 and competed in 2007 were assessed as a Section 24 Special Benefit for costs to the three adjacent landowners as a 14% benefit. The remainder is assessed as a Section 23 Outlet Liability benefit to the upstream land owners in the watershed.”

c. “6. A proposed Bank Restoration Improvement Program (BRIP) is included for one subscriber, but other properties can be included by agreeing to the same cost-sharing principles. This uses natural methods to reconstruct a bank to resist future stream bank erosion as an alternative to the concrete block constructed in 2006/2007”.

21The Report provided two options to address pumping;

“Option A. Replace the original pumping system with a pumping system that meets the stated expected standard with a pumping rate of 0.800 cms to 1.6 cms. A preliminary estimate of $400,000 to $800,000 is the approximate cost to return pumping to the existing gate structure.

Option B: Abandon the primary pumping and only use the trailer deployed pumping for the Wignell Drain and effectively use the gate structure to manage seiche conditions and runoff events. Estimates range from $20,000 to $280,000 depending on configuration. See cost estimates in Appendix B.”

22The Report recommends Option B.

Whiskey Run Golf Club Ltd. – Appellant evidence and arguments

David Bankert, witness for Whiskey Run Golf Club

23David Bankert farms 800 acres in Port Colborne, including 150 acres on Lorraine Road that is in the Wignell Drain watershed. Additionally, Mr. Bankert testified that he has for five years, farmed 4.3 acres of land owned by Mr. Lou Nieuwland, that abuts the Wignell Drain and is immediately west of the Serpent 9-holes at Whiskey Run.

24David Bankert stated that he observed flooding on the 4.3 acres of Mr. Nieuwland’s land with at least once a year the land being underwater. Mr. Bankert stated that the only way to remove the water was to pump it out. Due to the flooding issues on the 4.3 acres of land, Mr. Bankert’s crop rotation is corn, soya beans and hay but not winter wheat.

25Mr. Bankert testified that he has declined the offer to farm an additional 10.5 acres of Mr. Nieuwland’s adjacent low-lying land because it is too wet. It is Mr. Bankert’s opinion that the soils are “are some of the best in the world”.

Lenard Groetelaars, witness for Whiskey Run Golf Club

26Mr. Groetelaars lives and farms at 1663 Firelane 2, Port Colborne at Weaver Road by the Lake. Mr. Groetelaars has farmed for the 43 years and currently produces soybeans. At the end of Weaver Road at the lake, there is a flood gate and a pump that is operated by Port Colborne. The pump is important when there is a high lake level, if the pump didn’t function his land would be flooded.

27Mr. Groetelaars stated that if his crops were flooded they would not last more than 10 to 20 hours. His experience is that soybeans can withstand 10 hours but lettuce and cabbage could only handle about an hour of the severe flooding. He had farmed with his family in the Wignell Drain watershed on land south of the Friendship Trail that are now owned by Vale. As, market gardeners, they produced lettuce, celery, onions, carrots and cabbage until the farm was sold in 1980 or 1981.

28Vale purchased the land in the market garden area of the Wignell Drain and with the last of this market garden land being bought in 1990 from Overholt Produce and Lakefront Growers. Vale/Inco purchased the lands in the market garden area because of contamination from their smelter.

29The pump at the outlet of the Wignell Drain continued to work after the market gardening had ceased.

Lou Nieuwland, witness for Whiskey Run Golf Club

30Whiskey Run Golf Club first opened in 1989, is owned by Lou Nieuwland, his wife and their children. It is a 28-hole golf course with 9 holes, the Serpent on land that is just east of the Wignell Drain. The remaining 18-holes are on land farther away, east of Lorraine Road, which principally falls within the Beaverdam Drain watershed. Close to 75 acres of their land is in the Wignell drainage area.

31Lou Nieuwland testified that only the Serpent 9-holes experiences flooding, and that the flooding occurs at the southwest corner on the land closest to the Wignell Drain.

32The flooding is a problem that negatively impacts Whiskey Run causing the Serpent 9-holes to be closed for period of days to weeks resulting in a financial loss annually to his business of $20,000 since 2015. Mr. Nieuwland stated that the pumps were removed from the Wignell outlet in 2014 and that there was no notification when they were removed.

33Lou Nieuwland testified that in his opinion the Wignell Drain is the source of the flooding on his property. It was his observation that flooding followed storm events when the gates at the Wignell Drain outlet are closed, in order to prevent the seiche events from Lake Erie. Then the water coming down the Drain has nowhere to go, causing the Drain to breach its banks and to flood his lands to the east.

Marc Gaudet, P. Eng. witness for Whiskey Run Golf Club

34Mr. Gaudet was qualified as an expert witness as an engineer.

35In order to provide his opinion evidence, Mr. Gaudet did a review of the Report prepared by Paul Marsh; the Wignell Drain Baseline Report; the Wignell Watershed and Hydraulics Report and the Beaver Dam Drain Stormwater Baseline Report.

36From this review Mr. Gaudet asserted that there is not adequate pumping available to mitigate occasional flooding at Whiskey Run and that the Wignell Drain does not have sufficient outlet. Mr. Gaudet questions why, except for cost, the decision was made to have a portable pump available rather than having a permanent one put in place. In Mr. Gaudet’s opinion, there is a need to get the water out of the inlet quickly to mitigate flooding.

37From Mr. Gaudet’s perspective, the pumping is a benefit to the landowners in the upper reaches of the drain, as when the drain is maintained, it will be deepened and the water will drain off more quickly and the lower reaches of the drain will act as a storm water pond.

Whiskey Run Golf Club, arguments

38First, flooding from the Wignell Drain negatively impacts the Whiskey Run Golf Club’s lands. The consequences of the flooding were reported by Mr. Nieuwland to be a drop-in revenue of $20,000 per year since the pumps were removed in 2015.

39Second, pumping at the Wignell outlet will ameliorate the risk of flooding. Mr. Marsh agreed on cross examination that pumping was effective at reducing the risk of flooding. In the “Wignell Drain Stormwater Baseline Report”, by Paul Marsh, EWA Engineering October 3, 2018 at p. 32, it states that, “The extremely low grade and ever present static water level in the lower reach of the drain suggest that flooding in this area will continue without extensive pumping and levies.”

40Third, the City’s proposed drainage works alterations will not ameliorate flooding. The Engineer presented two options with respect to pumping at the Wignell Drain. Option A was to replace the original pumping system. Option B was to abandon primary pumping and instead use trailer deployed pumping. The Engineer recommended Option B. The particulars of the mobile trailer pump proposed was not defined. The proposal is that the cost for the mobile pump will be directed to the landowner requesting the pump.

41The proposed gate structure improvements are summarized as follows;

a. Replace motors that raise and lower the gates adding actuators and sensors to enable automation,

b. Sealing the gate bottom in a concrete notch and

c. Ensuring the west gate extends to the height of 176.5 meters.

42Whiskey Run argues that the gate changes will not ameliorate flooding, and that automating the gates is unnecessary. The City staff have the tools available to them to be alerted to storms at least a couple hours in advance, with the staff responsible for closing the gates being typically about 8 minutes away from the gates. Whiskey Run challenged the need to seal the bottom of the gates as there was no evidence provided as to how big, if any the gap is. Whiskey Run argued that extending the gate height is not very costly and the City could make this modification even if the Tribunal modified the Report in favour of pumping.

43Fourth, the cost of pumping should be borne by all the property owners in the watershed. The pumping may have started with the market gardening but it continued long after the market gardening ended. There was unclear evidence provided as to which landowners paid for the repair and maintenance of the pumps. Whiskey Run argued that the City intentionally failed to produce documents that would have shown which landowners were assessed for the expenses. There was evidence that the repair and maintenance of the pumps were the costs of the market garden landowners, however there was also evidence that some of the expense was assessed to landowners further up the watershed and by the City.

44Finally, the Weibe and AMEC report fees should be removed. It was acknowledged by the Respondent City of Port Colborne that neither of the Engineering firms completed the work they were contracted to do. Weibe commenced working on the project in 2003 and ceased in 2008 and AMEC in 2013 and ceased doing engineering work on the project in 2017. Whiskey Run argued that it was apparent that the work done by both of Weibe and AMEC was stale dated and of little use to Mr. Marsh in the completion of the Report.

45Whisky Run request for relief is as follows;

a. Modify the Engineer’s Report to recommend Option A over Option B.

b. In the alternative, modify the Engineer’s Report to require the City of Port Colborne provide to the property owners, at the City’s cost, a dedicated trailer deployed pump of sufficient capacity for use at the Wignell Drain. The downstream reach immediately adjacent to the outlet, has a 0% grade, has been widened in the past, and is functioning as a storm water management pond for the entirety of the upstream of the Wignell Drain. The capacity has been exceeded over the years with the gradual add on of new properties and they have benefited by having their water discharged into the lower reaches and it is a benefit to them as well to have this pumped out.

c. The costs of the Wignell Drain engineering reports from Wiebe and AMEC of $53,374.78 and $19,370.41 respectively, be paid by the City and not assessed to the Drain.

Cynthia and Robert MacNeil, Appellant Evidence and Arguments

46Mr. and Mrs. MacNeil own and reside at 828 Lakeshore Rd. E., Port Colborne, Ontario. The MacNeil’s purchased this property in October 1997. The Wignell Drain runs along the North boundary of their property.

47The MacNeil’s section 48(1) appeal was brought on the bases that;

a. The benefit to be derived from the drainage works are not commensurate with estimated costs thereof;

b. The drainage works should be modified on grounds to be stated, and

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

48The MacNeil’s section 54(1) appeal is of the Court of Revision decision dated August 6, 2024, denying them relieve from the assessment levied on their land. The MacNeil’s request is for relief from the assessment of Special Benefit for the BRIP in the amount of $6,150.37.

49Ms. MacNeil advised that the flooding on their property has been occurring since 1997, preventing them from being able to enjoy half of their yard, causing erosion on the property, the loss of a shed and damage to their septic system. Mrs. MacNeil asserted that the flooding from the drain over the years has reduced the value of their property and that the proposed work on the Drain will not guarantee the prevention of further flooding on their land.

50The MacNeil’s provided as evidence pictures and videos of the flooding events from 2018 through to 2023. The MacNeil septic system floods during flooding events. The pictures entered as evidence showed their property with extensive flooding in the low-lying areas.

51Ms. MacNeil stated that the City of Port Colborne has neglected to maintain the Wignell Drain since 1997 and that when the outlet of the Drain to Lake Erie was blocked by sand, they failed clear it, and on at least one occasion, Port Colborne did not prepare the Drain outlet for an upcoming storm event. Mrs. MacNeil provided as evidence emails she had sent to the City requesting action dealing with the flooding. She further asserted that the City of Port Colborne does not respond when she calls to advise that there is flooding on her land.

52Ms. MacNeil stated that maintenance activities, such as the stabilization of the banks of the Drain through the MacNeil property and the repair of erosion issues have been on hold for the duration of the time they have owned the property. In cross examination, Ms. MacNeil agreed that there was removal of both a tree and a beaver dam from the Drain by the City and that the City has dredged the outlet of the Drain and removed sand that the lake action has piled up at the outlet.

53Ms. MacNeil argues that the City has failed them by not responding quickly during flood events and has not acted quickly enough to reduce the flooding on their land and thereby reducing the damage to their property near the Drain.

54Ms. MacNeil objects to paying a share of the bank protection and the restoration of the land that has been washed away. Ms. MacNeil argued that the Special Benefit in the amount of $6,150.37, does not commensurate with the cost, as the Wignell Drain does not have sufficient outlet and the description of the work to be completed will not fix the underlying issues.

City of Port Colborne – Evidence and Arguments

Chris Lee, witness for the City of Port Colborne

55Chris Lee was the Director of Public Works for the City of Port Colborne for five years from 2015 to 2020. He has resided in the Wignell drainage area since 1977. Mr. Lee stated that the pump installed at the outlet was paid for by an Ontario Ministry of Agriculture (OMAF) grant and was installed at the request of the farmers operating market gardens immediately adjacent to the Wignell Drain. Mr. Lee advised that the lands are now owned by Vale. The benefiting parties paid for the operation of the pump.

56The market garden farms in the Wignell Bog were sub drained with tile so the farmers could dry the land early, get their crop in and have it reach the market three to four weeks earlier than produce coming from the Holland Marsh. Once the lands were no longer used for market gardening, the pump was not used much and fell into disrepair. Vale as owner of the lands did not want to pay for a new pump so the pump was removed. Since then a portable pump has been used by the City as needed.

Alana Vander Veen, witness for the City of Port Colborne

57Alana Vander Veen has been the Drainage Superintendent for City of Port Colborne since November 2018 and has been employed by the City since 2003. Over her time as Drainage Superintendent she has been involved with the Wignell Drain. Through a file review she is aware of the history of the Wignell Drain and the efforts made to have the drain maintained.

58The first engineer’s report by Wiebe was commissioned in 2002, and subsequently abandoned by Wiebe; the second engineering firm, Amec was appointed and worked on the project from approximately 2012 to 2015. Meanwhile, some maintenance was performed on the Drain, however, the expenses were not billed out to assessed landowners on the Drain as a new report was being prepared. On July 23, 2018 Paul Marsh was appointed as the engineer to complete the report for the Wignell Drain.

59In 2008 the high lift pumps were removed and in 2009 the bills were left in the files. The pumps had been taken for repair and they were not repairable. The City Records showed that historically the only lands that were assessed for and paid for the cost of pumping were the lands that are now owned by Vale/Inco.

60Lake levels are monitored by the City to ensure the outlet gates are in the correct position for pending weather events. The City has various gates at drain outlets that it monitors and maintains, four of which are Municipal Drains. The Engineer’s recommendation for automatic gate closings will, from Ms. Vander Veen’s perspective, speed up the closing of the gates in weather events and reduce the amount of water that is pushed by the Lake up the Drain. The City currently has automatic gates at the outlet of the Eagle Marsh Drain.

61Ms. Vander Veen provided data compiled by the Army Corp of Engineer’s showing monthly average lake levels from 1999 to 2023. The highest average lake level was during the month of June 2019 at 175.14 meters. This lake level does not take into consideration that the wind at times makes the lake level higher at the outlet.

62Ms. Vander Veen testified that the City is called to clean out sand from the outlet of the Wignell Drain when there is a buildup that causes gravity drainage not to work. The number of times that maintenance is performed at the outlet each year will vary depending on the number of storm events and the direction of the winds. In 2019, a lot of cleanout was required at the Wignell outlet. Port Colborne has six municipal drains that experience sand build up at the outlet.

63In Ms. Vander Veen’s call log, which recorded missed calls, between 2017 and 2025, she received 13 calls from Lou Nieuwland five were regarding the gate position and 3 she classified as panic calls requesting immediate action due to water levels. She also logged many calls from Ms. MacNeil. Ms. MacNeil’s calls often request a call back. Ms. Vander Veen explained that often during storm events she will get calls from many different people and she will be in the field dealing with drain issues. She noted that whoever it is that has called in should recognize that the problem has been addressed as requested and that the water levels are gradually changing.

64Ms. Vander Veen stated that maintenance work has been done on the Wignell Drain over the years. On August 29, 2022 a beaver dam was removed from the Drain just east of the MacNeil property, the beavers were trapped and removed. In 2018, brushing and the removal of fallen trees from east of the MacNeil property up to the Friendship Trail in and in 2020 from Lakeshore Road east, south to the Lake was completed. From 2010 to 2024 maintenance on the Drain south of the Friendship Trail cost $73,545 and on the floodgate structure $38,006.

65Ms. Vander Veen noted that the Act requires a report to be written within a year and this report was started in 2002. She is aware that reports frequently take longer than a year to be prepared.

66The City has three mobile pumps that have a capacity of 2,200 gallons per minute with the capacity changing dependant on the height the pump is moving the water. Two of the pumps are available for deployment for drains and the third is used for sanitation. Portable pumps are available to rent from companies such as Battlefield Equipment Rentals.

City of Port Colborne, arguments

67The Engineer’s Reports for the Wignell Drain, the Port Colborne Drain and the Michener Drain were presented separately, and each Report has been appealed to the Tribunal. This hearing on the Wignell Drain is the last of three hearings. Decisions have been rendered by the Tribunal on the Port Colborne Drain and the Michener Drain.

68The Decision of the Tribunal on the Michener Drain 2021 ONAFRAAT 18 was issued on December 12, 2021. At that time, the Tribunal ordered that the Michener Drain Report is set aside temporarily until the following three matters are completed;

a. the City must obtain a completed report on the Wignell Drain.

b. all appeals of the Wignell Drain report must have been fully disposed of, and

c. certain works specified in the Wignell Drain report must be completed, ensuring that the Wignell Drain is a sufficient outlet for the Michener Drain.

Once completed, the Engineer must file with the Tribunal a Certificate of Completion for the specified portion of the work.

69In short, the work on the Michener Drain cannot commence until the appeals in this hearing have been addressed and the work specified in the order on the Wignell Drain is completed.

70The requests for relief by the City of Port Colborne are as follows;

a. The Appeal of Mr. Lou Nieuwland on behalf of Whiskey Run Golf Club, under Section 48 of the Drainage Act, is dismissed;

b. The Appeal of Mr. Lou Nieuwland on behalf of Whiskey Run Golf Club, under Section 54 of the Drainage Act, is dismissed;

c. The Appeal of Ms. Cynthia MacNeil, and Mr. Robert MacNeil, under Section 48 of the Drainage Act, is dismissed;

d. The Appeal of Ms. Cynthia MacNeil, under Section 54 of the Drainage Act, is dismissed;

e. The assessments set out in the Wignell Municipal Drain Report dated February 9, 2024, and as amended by the Court of Revision are confirmed;

f. Should any person wish to seek a different pumping system and/or assessment for pumping than that set out in the Wignell Municipal Drain Report dated February 9, 2024, such a request shall be initiated by means of a petition pursuant to Section 4 of the Drainage Act;

g. The non-administrative costs of the Municipality, incurred with respect to this appeal shall form part of the cost of the drainage works;

h. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Port Colborne’s arguments - Whiskey Run Golf Club

71Whiskey Run’s s. 48 appeal was made on the basis that a drain without sufficient outlet will not provide benefits commensurate with the costs of the works and that the Report recommends abandoning primary pumping and leaves the Wignell Drain without sufficient outlet.

72Whiskey Run’s s. 54 appeal was made on the basis that the engineering costs associated with the project were too high; and the costs from the previous engineering companies should not be included as the studies were not completed and not being used.

73The City of Port Colborne rejects the argument that there is insufficient outlet asserting that, it is Mr. Gaudet’s opinion that without a pump, the Wignell Drain does not provide a sufficient outlet to the watershed. This opinion was based entirely on his reading the Marsh report and interviewing Mr. Nieuwland.

74The evidence of Mr. Marsh contests that opinion as follows. Prior to the introduction of a pump in 1973, the Wignell Drain was considered a sufficient outlet as defined by the Act. This is supported by the previous Engineers’ Reports, the 1969 C.J. Clarke Report and the 1973 C.J. Clarke Pump Report.

75The City argues that after the pump was removed from service around 2013, the Wignell Drain continued to be a sufficient outlet. The City rejects Mr. Gaudet’s conclusion that “The operation of a primary pump at the Wignell Drain Control Structure is a benefit to all landowners contributory to the Wignell Drain as established by historical pump operation and assessment costs having been shared by landowners in upper reaches of the Wignell Drain”. Instead, the City assert that the uncontradicted evidence of Mr. Marsh, Ms. Vander Veen and Mr. Lee is that pump operation and assessment costs were never shared by landowners in the upper reaches of the Wignell Drain. The uncontradicted evidence of the witnesses called by the City is that only some of the property owners, below the Friendship Trail, whose properties benefitted from the pump, paid any assessment for the installation, operation and maintenance of the pump.

76The previous pump was paid for by landowners who submitted a petition for the preparation of an Engineer’s Report to install a pumping platform to achieve 9,000 USGPM (567 lps). A 10,000 USGPM (631 lps) pump was installed and operated for the period from 1973 to 2013 and the costs of this pumping continued to be charged to the same lands as set out in the original Report prepared in 1973. That was the market garden lands, whose owners originally petitioned for the pump to be installed.

77These lands were purchased by Inco/Vale, which continued to pay the assessments for pumping even after the lands ceased to be used for agricultural purposes. There is no evidence that any other landowner, other than those originally assessed in 1973, has paid for pumping.

78The City notes that in the submissions of Whiskey Run, they allege that the City failed to produce pump assessment records between 1978 and 1997 and that such failure should lead to an “adverse inference”. The adverse inference Whiskey Run would have the Tribunal draw is that the missing documents would not have supported the City’s position that only a limited number of landowners paid for the maintenance and repair of the pumps between 1978 and 1997.

79Ms. Vander Veen, responded to this allegation in cross-examination, and denied that the records showed a change in the assessment schedule. According to the Ms. Vander Veen, the records that the City produced clearly showed which properties were assessed.

Port Colborne’s arguments - Robert and Cynthia MacNeil

80Robert and Cynthia MacNeil brought their appeal under Section 48 of the Act seeking relief of their assessment in the Report, the Special Benefit of $6,150 for the BRIP, the Outlet Liability of $177 for a total of $6,328 as the benefit does not commensurate with the cost, as the Wignell Drain is not a sufficient outlet and the description of the work to their property will not fix the underlying issues. The MacNeils also “sought relief on their property taxes” but acknowledged at the hearing that such relief was not within the authority of the Tribunal.

81Cynthia MacNeil also filed an appeal under Section 54 of the Drainage Act. In this appeal she restated the wording from the s. 48 appeal adding that “(W)e strongly disagree (with the Decision of the Court of Revision) and maintain our position to be absolved from the cost to build the bank”.

82Ms. MacNeil understands that her property is in a floodplain designated by NPCA. Further she acknowledged that her house has never flooded as a result of the Drain. She admitted she would like to see areas of her yard raised that have eroded due to the flooding of the Drain. She understands that the bank restoration must take place but objects to paying for any of the work.

83Ms. MacNeil raised her concerns about the timeliness of response to her calls and emails to the City as the water in the Drain was rising. She also questioned the lack of maintenance of the Drain over the time that they have owned and lived in their home on Lakeshore Rd. The City through Ms. Vander Veen provided evidence of maintenance on the Drain including work at the MacNeil property.

84The MacNeils have asked that the Drain perform in a manner that is beyond what is achievable within the limits of her existing property as a riparian landowner. The stated design service level for the Wignell Drain is to convey the 1:5year storm, (68.9mm over 24 hours) to outlet in Lake Erie without causing harm or damage to lands and roads within the watershed. The MacNeils’ property has portions of it that are at or below 175.5m elevation, which is the intended design target Wignell Drain Top of Bank (TOB) height for the land upstream of the Wignell Drain Structure.

85Ms. MacNeil, in her presentation, illustrated that there has been bank recession on the MacNeil property and that this is something that should be addressed in the Engineer’s Report. However, the MacNeils do not wish to pay for the restoration, rather they expect the watershed to pay for the work in its entirety.

86In response to this request, the Engineer has proposed the BRIP with the restoration work being assessed at 86% to the upstream watershed and 14% to the landowner who made the request, which is the MacNeil’s. This alternative recognizes that the MacNeils would receive a Benefit in the restoration of land and the installation of protection against future erosion. The Report identifies that adjacent landowners could adopt this same improvement with the same assessment of Benefit and Outlet Liability.

87The City of Port Colborne suggests that there are two possible paths to resolve the MacNeil appeal. Option A is to accept that the proposed work is an assessed benefit at 14% of the estimated total cost and allow the work to proceed. Option B is that the BRIP should be removed from the MacNeil property, with no assessment for the benefit.

Submissions from Participants

Harry Wells, Participant

88Harry Wells resides with his family at 548 Highway #3, Port Colborne. He has lived there for 35 years. His land is 0.828 hectares (approx. 2 acres) in size. Mr. Wells advised that his land is located 1.6 km north of the Friendship Trail and is high and dry.

89Mr. Wells expressed his concern that the proposed gates and pumps are to control the back flow from the lake and not to take the runoff water above Whiskey Run Golf Club. Mr. Wells noted that there has been no benefit or adverse impact cited to the landowners north of the Friendship Trail if the gates and pumps were not installed.

90It is Mr. Wells opinion that the bank repair and improvement (“the BRIP”) at the MacNeil’s property is a Special Benefit to them and that the gates and pumps are a Special Benefit for Whiskey Run and therefore the cost of the projects should be the responsibility of the recipients of this benefit.

Josef van Ruyven, Participant

91Josef van Ruyven, is a landowner on the Wignell Drain and his land is located north of the Friendship Trail. Mr. van Ruyven expressed that his land has not been affected by flooding caused by seiche events from Lake Erie, nor is there any history of any of the lands north of the Friendship Trail having been affected by a Lake Erie seiche event.

92Mr. van Ruyven takes the stance that the cost of installation, maintenance and servicing of any structures required to mitigate flooding on those properties subjected to flooding, either by seiche, or by a precipitation event, be borne by the landowners of the properties who benefit from them.

Jack Hellinga, Participant

93Jack Hellinga lives at 770 Highway #3, Port Colborne and his property is within the Port Colborne Drain, a tributary of the Wignell Drain. Mr. Hellinga advised that his property is about 5 meters higher than the highest monthly average level of Lake Erie from the recorded period of 1985 to the present as provided in evidence by the Engineer.

94Mr. Hellinga noted that his land has had sufficient drainage from the Port Colborne/ Wignell Drain since 1870. Mr. Hellinga noted that as a result of a 1:50 year storm event on July 17, 2021, there was minimal surface flooding and that it dissipated with in a day after the end of the rain event. Mr. Hellinga argued that the gate and pump structure at the outlet of the Wignell Drain provides no benefit to his land or for the landowners on the Drain north of the Friendship Trail.

95Mr. Hellinga objects to the cost of the gates and pumps at the outlet being assessed as Outlet Liability only. He is of the opinion that the modifications to the gate structure are only of benefit to the low-lying properties south of the Friendship Trail and that those landowners should be assessed for Benefit accordingly.

ISSUES

96The issues are identified as follows;

a. Should the engineering fees from AMEC Foster Wheeler and Wiebe Engineering be assessed to the Drain?

b. Should the MacNeils be assessed a Special Benefit on a portion of the cost for bank restoration (BRIP) at their property and if so how much?

c. Should the improvements and maintenance to the gate structure proceed as proposed in the Report?

d. Is there sufficient outlet without a pump at the outlet of the Wignell Drain?

e. Should there be an Outlet Liability Assessment levied on all landowners for the cost of maintaining and operating pumping at the outlet of the Wignell Drain?

f. Are the projected costs associated with a permanent pump at the outlet commensurate with the benefit?

THE LAW

97The Drainage Act at sections 22, 23, 24 and 39;

Assessment for benefit

22 Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit. R.S.O. 1990, c. D.17, s. 22.

23 Assessment for liability

Outlet liability

(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. R.S.O. 1990, c. D.17, s. 23 (1).

Injuring 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. R.S.O. 1990, c. D.17, s. 23 (2).

Basis of assessment

(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. R.S.O. 1990, c. D.17, s. 23 (3).

Assessment for special benefit

24 The engineer may assess for special benefit any lands for which special benefits have been provided by the drainage works. R.S.O. 1990, c. D.17, s. 24.

39 Time for filing report

(1) The engineer shall file the report with the clerk of the initiating municipality as soon as it is completed or, in any event, within one year after the appointment of the engineer or within such further time as may be extended before or after the expiry of the one-year period by resolution of the council of the municipality. 2010, c. 16, Sched. 1, s. 2 (7).

Engineer may forfeit compensation

(2) Where, after thirty days notice by council, the engineer neglects to make a report within the time limited by or extended under this section, the engineer shall forfeit all claims for compensation for the work done upon the drainage works, and the council of the local municipality may appoint another engineer. R.S.O. 1990, c. D.17, s. 39 (2).

ANALYSIS AND FINDINGS

Engineering fees

98There were engineering fees from Wiebe Engineering and AMEC Foster Wheeler of $53,374.78 and $19,370.41 respectively for work from 2003 to 2017 that was never completed and for which no reports were produced. The evidence was that this work was of little to no value of the writing of the current Report. As such, pursuant to section 39 of the DA the landowners are not to be held liable for the cost of this incomplete work. The municipality could have taken action under section 39 (2) of the Act and withheld payment to the engineering firms.

99The Tribunal agrees that the fees accumulated from two previous incomplete engineering reports from AMEC and Wiebe should be assigned solely to the Municipality.

BRIP Special Benefit

100A portion of the MacNeils property is in a floodplain as determined by the NPCA. The property experiences flooding and over time the bank of the Drain has eroded as have portions of the MacNeils’ land. The MacNeils testified that the flooding has reduced the value of their property, reduced the available land for them to use when there are high water levels, and will at times impact their septic system. The Tribunal was not provided with evidence as to the amount of the reduction in the value of the MacNeils’ property.

101The BRIP assessment summary in the Report divides the estimated cost of the program of 45,156.73 with 86.4% or $39,006.36 as Outlet Liability (Section 23) and 13.6% or $6,150.37 as Special Benefit (Section 24) to the private landowner. The program only commences upon the approval of the landowners. The Report provides the cost estimates for the MacNeil property and offers the BRIP to other properties on the same basis.

102The optional improvement program, with an elevate bank restoration, provides more than functionality to the Drain. Under the Act, an assessment is made for lands that receive a special benefit from the drainage works. The Tribunal disagrees with the Report’s division of assessment for the BRIP. The Tribunal finds that the division of assessment for the BRIP should be 30% for Special Benefit and 70% as Outlet Liability.

103The MacNeils further requested relief from Outlet Liability assessment on their property. The Tribunal finds that the Outlet Liability assessed on their property is reasonable and aligns with the Act.

Gate structure

104Whiskey Run argued against making the improvements to the gates proposed in the Report citing the evidence of the Engineer that the gates are working as they are. The Tribunal heard evidence from the Municipality that both of the Appellants along with other landowners are insistent on a timely response from municipal staff when storm events are imminent and threatening to cause flooding. The evidence was that the gate structure is integral to the functioning of the Drain outlet and that the timely closing and opening of the gates increases the functioning of the Drain. Adding automation to the system is a trade in maintenance cost fin the form of the labour of the Municipal staff to a capital investment in equipment. Ongoing maintenance and repair of the existing gate structures further the functionality of the whole structure. The Tribunal accepts the Reports proposal for the maintenance and improvements in the gate structure.

Sufficient Outlet, pumping

105It is the evidence of the Engineer that the Wignell Drain has sufficient outlet without pumping. However, there is an expectation of flooding in the riparian lower reach lands during storms that combine both a seiche and significant runoff during the periods of high lake level. As these three conditions are not a typical case, they are not reflected in the design storm model. The Tribunal agrees that the Drain has sufficient outlet without pumping.

Outlet Liability Assessment and pumping

106The Municipality argued that as the pumping system was installed and maintained solely by the market gardeners and as this activity has ceased and the current owners of these lands do not require the level of drainage provided by the pumps, that going forward the assessment for repair and maintenance for pumping at the outlet of the Drain should be assessed to the landowner that requests the pumping.

107The inclusion of a pumping system provides a Benefit to landowners in the lower reaches of the drainage area. The Appellants argued that the cost of the maintenance and repair of the pumps should be shared by all the landowners. The Participants, who provided submissions for this hearing, are all located in the upper reaches of the Drain and argued against having any assessment levied against them for the pump and gate structure.

108In considering the assessment for the cost of repair and maintenance of the pump the Municipality cited Cranberry Creek Municipal Drain (RE) 2020 ONAFRAAT 9 at p. 62 under the heading of “Assessments for a Pumping Station” ... “the Engineer assessed only 25% of the pump station construction cost and 25% maintenance and operation cost to these lands (“Pump Station Benefit Area”), and 75% to the upstream lands. This assessment split does not seem fair and reasonable”. This paragraph ends with “Accordingly, in these circumstances, it is the view of the Tribunal that a much greater portion of the initial construction cost, as well as the maintenance and operational costs, should be assessed to the lands in the “Pump Station Benefit Area” as benefit, and a much lesser portion of the cost should be assessed to all of the lands within the drainage area as outlet.”

109The Tribunal in the matter of the Wignell Drain agrees with this analysis and as such have determined that the assessment for the cost of pumping should be split 50% Benefit to all land upstream of the gate structure lower that the top of the gate and 50% Outlet Liability.

A permanent pumping system vs. a portable pumping system

110The Report provides that the preliminary estimate for permanent pumps ranges from $400,000 to $800,000 to replace the pumping system with a pumping system that meets the expected standard with a pumping rate of 0.800 cms to 1.6 cms. The permanent pumping system that gradually was removed from the Wignell outlet had been installed under Petition from the market gardeners farming in the Wignell Bog. The Tribunal accepts the evidence that this land use has now ceased. Evidence provided identified that there was economic benefit for the market gardeners to control water levels on and in their lands in order to achieve their desired production timelines and to safe guard their crops. The Tribunal was not provided with a cost analysis on the benefit of the pumps versus the cost of the pumps.

111Whiskey Run advised that they have experienced a loss of revenue of approximately $20,000 annually due to the periodic flooding since 2015 on the Serpent 9. No evidence was provided as to the capacity of a pump required for optimum outcomes for Whiskey Run’s golf course.

112The Tribunal agrees with the Engineer’s recommendation for the use of a portable trailer pump for the Wignell Drain that can be used as needed.

113The Tribunal notes that if a landowner requires additional drainage they can bring a petition under section 4 of the Act.

114The Municipality requested clarification with regards to complying with the order as set out in Michener Drain 2021 ONAFRAAT 18 at para 57,

“The Appeal by Lou Nieuwland is allowed in part and the Michener Drain Report shall be set aside temporarily. The Tribunal orders that the following must be completed before the Michener Drain Report can proceed to the provisional by-law stage:

a. The City of Port Colborne must obtain a complete report on the Wignell Drain;

b. All timeframes for appeals under the Act with respect to the Wignell Drain report must expire, or any appeals filed must be fully disposed of; and

c. The works specified in the Wignell Drain report, from its outlet in Lake Erie to the point immediately west of station 0+400 on the Michener Drain, must be completed, ensuring that the Wignell Drain is a sufficient outlet for the Michener Drain. Once completed, the engineer for the City of Port Colborne must file a Certificate of Completion for this portion of the work, with the Tribunal.”

115The work to be completed on the Wignell will include improvements on the gate structure, the availability of the trailer pump and maintenance and improvements as per the Report to the point where the Michener outlets into the Wignell.

ORDER OF THE TRIBUNAL

116The Tribunal orders the following;

117That the appeals of Robert and Cynthia MacNeil are dismissed.

118That the assessment schedule for the Bank Restoration Improvement Program shall be changed to 70% Outlet Liability and 30% Special Benefit to the landowners who subscribe to the program.

119That the appeals of Whiskey Run Golf Club are allowed in part.

120That the engineering fees charged by Wiebe Engineering of $53,374.78 and AMEC Foster Wheeler of $19,370.41 shall be the sole cost of the Municipality.

121That the gate maintenance and improvements shall be implemented as per the Report.

122That the pumping system will be “Option B” as described in the Report. Specifically, a mobile pump that shall be available on an as need basis to manage seiche conditions and runoff events.

123That the cost of pumping shall be divided as 50% Outlet Liability and 50% Benefit to any land lower than the top of the gates at the outlet.

124That the non-administrative costs of the Municipality with respect to this appeal shall form part of the costs of the drainage works.

125That there shall be no other order for costs and all parties are responsible for their own costs.

Released: December 30, 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.