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:

Desroches Municipal Drain (RE) City of Kawartha Lakes Graeme and Audrey Little

Desroches Municipal Drain (RE) 2025 ONAFRAAT 02

STATUTE:

Drainage Act

HEARING:

February 13, 2025

DATE OF DECISION:

March 17, 2025

012Deroches24

NEUTRAL CITATION:

2025 ONAFRAAT 02

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 Graeme and Audrey Little of Little Britain, Ontario under 64 of the Drainage Act with respect to the Desroches Municipal Drain in the City of Kawartha Lakes.

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.

BETWEEN:

Graeme and Audrey Little Appellants – and – City of Kawartha Lakes Respondent

Self-Represented

Represented by Joseph Doris

Heard: February 13, 2025 via Zoom

Before: Glenn C. Walker, Chair; Don McNalty, Vice-Chair, and David Stevens, Member

Parties Present:

Graeme and Audrey Little, Appellants

Joseph Doris, Counsel for the City of Kawartha Lakes

Mike Gerrits, P. Eng., Engineer who wrote the Report

Joel Watts, Deputy Clerk, City of Kawartha Lakes

Mike Farquhar, Manager of Technical Services, City of Kawartha Lakes

Richard Monaghan, Drainage Superintendent, City of Kawartha Lakes

Trevor Little – Witness

TRIBUNAL DECISION

Background

Procedural Background

1. This is an appeal by Graeme and Audrey Little pursuant to section 64 of the Drainage Act, R.S.O. 1990, c. D.17 as amended (“Act”).

2. The Notice of Appeal was filed with the Clerk on October 9, 2024. At the same time the Appellants filed a Notice of Appeal under section 48(1) of the Act. This latter Notice of Appeal was rejected by the Tribunal as it was not filed in time.

3. A Notice of Appeal under section 48(1) of the Act must be filed within 40 days after the sending of the notice of the Court of Revision. In this case it had to be filed on or before June 14, 2023, but was not filed until well after the completion of construction of the drainage works.

Evidence Received at the Hearing

4. Evidence was received from Graeme Little and Trevor Little on behalf of the Appellants. Richard Monaghan and Michael Gerrits testified for the Respondent.

Evidence of Graeme Little

5. The Appellants are the owners of a farm at Lots 16 and 17, Concession 4, Geographic Township of Mariposa, in the City of Kawartha Lakes consisting of approximately 150 acres. The Appellants, their son and 4 grandsons run a dairy operation on this farm. They have 400 hundred head of cattle and 180 milking cows.

6. The Desroches Municipal Drain (hereinafter called the “drain” or “drainage works”) crosses a corner of a field in Lot 16, Concession 4 owned by the Appellants. There is a pond, approximately 1 acre in size, and a spring lying northwest of the drain.

7. Graeme Little (“Graeme”) testified that this field was planted with high protein premium alfalfa hay for use as haylage and hay at the time the drain was constructed and was on a 4 or5 year rotation with 2024 being the second year of alfalfa.

8. The Engineer’s Report (“Report”) was prepared pursuant to section 4 of the Act at the request of affected landowners, J. Desroches and Estate of Desroches (“Desroches”).

9. There was already a mutual agreement tile drain constructed across this field by Desroches and the new drainage works more or less paralleled this drain.

10. The working corridor for the drain as set out in the engineer’s report was 20 metres wide with the drain located as close to the centre as possible. Graeme estimates that the area affected by the construction of the drainage works was 4 acres. This includes the corridor as well as some field on the northwest side of the corridor that the Appellants could not access for harvest and some expansion of the working corridor due to muddy working conditions.

11. Graeme explained that the field is heavy clay and cannot be farmed when the field is wet. He made 2 requests of the engineer; firstly, that the drainage work be done in August when the soil is dryer, and secondly, that the contractor separate the topsoil from the subsoil. He testified that there was an “agreement” that the drainage works on his property would be carried out in August 2023.

12. The drainage works were commenced on other properties in October 2023, but no work was done on his property until December 2023 and January 2024.

13. The soil was so wet that the topsoil and subsoil could not be separated and turned to “gumbo” in his words. Graeme thought that if the construction could not be commenced in August 2023 they should have waited until August of 2024.

14. As a result of the wet working conditions, the Appellants were not able to get that portion of the field in a condition to plant in 2024, and suffered a crop loss for that year. That year the affected area grew up in weeds. He does not expect to get full crop production in 2025.

15. He is claiming $5,960 for crop loss in 2024 and $3,120 for expected crop loss in 2025. The Report allowed them $1,098 as an allowance for crop loss under section 30 of the Act. They disagree with the values used for lost crops in the Report, stating that they are outdated 1991 values.

16. Graeme spread one hundred tons of topsoil in 2024 to improve the field because the topsoil and subsoil had not been separated. He spent over one hundred hours working to restore this portion of the field. He is claiming $5,000 for site cleanup (100 hours x $50 including outside labour). He stated that he did most of this work himself but provided no evidence regarding outside labour cost.

17. Graeme testified that the contractor did not do any restoration on his property after the trench was backfilled. All the work to restore the land was done by him.

18. Graeme testified that there was an agreement that the affected land would be left as it was found, seeded in high protein premium alfalfa.

19. The Appellants also claim $1,500 for reseeding with high protein premium alfalfa including seed, cultivating, planting and packing.

20. The total of the Appellants’ claims is $15,580.

Evidence of Trevor Little

21. Trevor Little (“Trevor”) is the Appellants’ son and is very familiar with this farm. He is a farmer and agricultural contractor.

22. When the construction on this farm started in December 2023 he had concerns because the land was very wet and having done excavation himself, he knew that construction under these conditions was going to cause problems.

23. The contractor started at the low end of the drain near Little Britain Road and crossed mostly non-agricultural lands with the open portion of the drain until he reached the lands of the Appellants. Trevor was surprised that the contractor started excavation on his parents’ farm in December when the soil was very wet and that he did not stop there.

24. Because the soil was so wet, the contractor could not strip the topsoil. All the soil got mixed because they could not separate the topsoil and subsoil. The site was very muddy and the machinery was getting stuck and causing ruts up to 2 feet deep.

25. The 20 metres corridor became 60 metres in some places due to the muddy conditions and the fact that the contractor had to change the trajectory of the drain and move to higher ground.

26. The contractor attempted to grade the affected area in June 2024 but was unable to do so because the soil had not dried out and was still too wet. Trevor was able to get onto the land in August to do the grading.

27. Trevor measured the land which was eventually affected by the construction at 4 acres which is in excess of the size of the corridor. This included part of the field of approximately 1.5 acres that they could not get to for harvest because they could not cross the drain.

Richard Monaghan

28. Richard Monaghan is the Drainage Superintendent for the City of Kawartha Lakes.

29. He stated that the Report did not contain any start date for construction of the drain nor was he aware of any agreement with the City to start the construction on the Appellant’s lands in August 2023.

30. There were restrictions imposed by the Kawartha Region Conservation Authority that no work was to be done on wetlands between April 1 and July 31.

31. The final reading of the by-law for the drain was on July 25, 2023. The agreement with the contractor was finalized on September 20, 2023. There was a pre-construction meeting of landowners and the contractor in early to mid-October 2023. Graeme and Audrey Little attended this meeting. Construction commenced at the downstream end of the drain late October or early November 2023.

32. From his observation, there did not appear to be any portion of the working corridor that exceeded 20 metres in width.

33. The contractor completed his restoration work in late June, 2024. This included grading and applying grass seed as indicated in the report.

34. He believes that the drain was constructed in accordance with the Report.

35. With respect to the topsoil that was delivered and spread on the Appellants’ lands, the witness stated that the City had agreed to provide 25 tri-axles (loads) of topsoil to the Appellants to compensate them for lost topsoil caused by erosion by works unrelated to and pre-dating the construction of the drain. This topsoil was delivered in August or September 2024.

36. He inspected the project periodically and attended at the Little property 2 to 3 times during construction. The Engineer was not engaged to monitor the construction of the drain. This work was assigned to the Drainage Superintendent.

37. The contractor made best efforts to separate topsoil from subsoil but the ground had already been disturbed by the construction of the mutual agreement drain.

38. The purpose of the drain was to take water from the Desroches farm situated across Eldon Road (Lot 15, Concession 4) and other upstream lands including Eldon Road to an outlet.

Michael Gerrits

39. He is the engineer who prepared the Report and was qualified by the Tribunal to give expert opinion evidence on municipal drainage matters under the Act.

40. The witness gave an overview of the Report.

41. At the time that the Report was started the Appellants’ field was planted with corn and the allowance as set out in the report is based on corn. He did not think that this allowance value would be much different if he had based it on hay.

42. The Engineer explained that the project required permits from both Kawartha Region Conservation Authority and Department of Fisheries and Oceans. The permit from the Conservation Authority provided that there be no work within any wetland between April 1 and July 31. The lands of the Appellants would be considered wetlands.

43. The Engineer noted that the new tile drain was to be more or less parallel to the existing mutual agreement tile drain with the exception that it deviated slightly to place it in higher ground and therefore achieve more cover over the pipe.

44. The Engineer then explained how he calculated the allowance under section 30 of the Act. For this purpose, the width and length of the working corridor is 20 metres by 224 metres for an area of .488 hectares or 1.2 acres. The allowance used in the Report was based on $1,500 per hectare for the first year and $750 for the second year ($2,250 per hectare total). This resulted in a section 30 allowance of $1,098 ($2,250 x .488 = $1,098).

45. The Engineer was not involved with this drain after the Court of Revision and the City was to look after the administration of the construction of the drain.

Relevant Sections of the Act

46. Section 64 of the Act provides as follows:

Any owner of land dissatisfied with the quality of the construction of a drainage work constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.

47. Subsection 48(1) of the Act states:

Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

b) the drainage works should be modified on grounds to be stated;

c) the compensation or allowances provided by the engineer are inadequate or excessive;

d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed, may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46(2), as the case may be.

Findings and Analysis

The Drain

48. This drain was constructed pursuant to Subsection 4(1) of the Act on the petition of Desroches whose lands lie on the west side of Eldon Road. These lands were recently tiled and directed the subsurface flows to an existing Eldon Road siphon, which conveys flows across Eldon Road.

49. In order to obtain an outlet for the increased flows created by the tile drainage system on their land, Desroches installed what appears to be a mutual agreement drain from the Eldon Road Siphon across lands owned by the Appellants and others. The mutual agreement drain was constructed in 2019 and consisted of a 300 mm diameter tile on the Appellants land and some additional downstream open channel improvements. The tile parallels an existing 200/250 mm diameter private tile owned by the Appellants. Landowners in the watershed, including the Appellants, felt that the improvements completed by Desroches had increased the amount of water flowing onto their lands causing flooding and erosion

50. The Desroches Drain as set out in the engineer’s report included a new 450 mm diameter tile drain from the west side of Eldon Road across the Appellants land to the open channel as well as improvements to the open channel downstream to Mariposa Brook. In addition, the existing Eldon Road siphon and associated structures and the 300 mm diameter tile installed by Desroches on the Appellants land are incorporated into the Desroches Drain.

Description of the Lands of the Appellants

51. The Appellants are the owners of a farm at Lots 16 and 17, Concession 4, Geographic Township of Mariposa, in the City of Kawartha Lakes consisting of approximately 150 acres. They, together with their son and 4 grandsons, run a dairy operation. They have 400 head of cattle and 180 milking cows.

52. The drain crosses a corner of a field owned by the Appellants in Lot 16, Concession 4 lying between Little Britain Road and Ranch Road and running across their lands from the Eldon Road to the lands of the Board of Education/Trillium Lakelands. The drain more or less parallels the tile drain constructed by mutual agreement.

53. The drain on the Appellants land is a closed drain. It becomes an open channel drain on the lands further downstream to the outlet at Mariposa Brook.

54. There is a pond, said to be approximately 1 acre in size, and a spring lying northwest of the drain adjacent to Eldon Road.

55. The soil type is said to be heavy clay and difficult to work with once it becomes water saturated.

56. This field is on a crop rotation of 4 to 5 years. At the time the Engineer surveyed the Appellants’ lands, this field was planted in corn. At the time of construction of the drain, it was planted in high protein premium alfalfa for haylage and hay for the dairy operation.

57. The working corridor provided for in the Report on the Appellants’ lands was 20 metres wide with the drain located approximately in the centre of the corridor.

Drain Development and Construction Timelines

58. On Site meetings were held on April 18 and 19, 2021. A meeting to discuss draft design and report was held on November 23, 2021 where Graeme Little requested that topsoil be stripped prior to construction.

59. The Report was issued on January 16, 2023. The By-law finally adopting the Report was passed on July 25, 2023 and the contract with the contractor Ratcliff was finalized on September 20, 2023.

60. A pre-construction meeting of the landowners, including the Appellants, and the contractor took place mid-October 2023 and construction began at the downstream end of the drain in late October or early November 2023. Construction on the lands of the Appellants commenced in December 2023 and continued into January 2024.

61. The contractor completed his restoration work in late June 2024 by grading and applying grass seed.

Issues Raised in the Notice of Appeal

62. The Appellants raised 3 issues in their Section 64 Notice of Appeal, as follows:

Regarding the adverse situation created by the Desroches Municipal Drain and the City of Kawartha Lakes Drainage Engineering management, we, the owners of this property have three issues needing to be addressed. The first involves agreed-upon August 2023 date of drain installation. The second issue is the non-perforated tile across our property which only benefits disposal of the ditchwater on both sides of Eldon Road. The third issue is improper valuation of crop damage using outdated 1991 values provided by Gerrits.

August Start Date

63. The Appellants argue that there was an agreed-upon start date of August 2023 for the commencement of construction of the drain.

64. There is nothing in the Report providing for a start date nor is there anything in the minutes of the pre-report meetings indicating an agreed-upon start date. The Act does not require that there be an agreement with a landowner for a start date.

65. The evidence of the drainage superintendent was that he was not aware of any such agreement.

66. The Appellants did not provide any evidence as to when this agreement was made or with whom it was made.

67. With the contract with Ratcliff not being finalized until September 20, 2023, it was clear that there was not going to be an August 2023 start date. To delay any start date until August 2024, as suggested by the Appellants, would have prejudiced landowners within the watershed by subjecting them to further damage meant to be prevented by the installation of the new drain.

68. Based on the evidence presented, the Tribunal finds that there was no agreement of an August start date, and this ground of appeal is dismissed.

Non-Perforated Tile

69. The Appellants assert that the installation of non-perforated tile for the closed portion of the drain is of no benefit to their property.

70. This issue is not the subject of a Section 64 appeal and should have been appealed under Section 48(1)(b) of the Act where the Appellants could have requested that the drainage works should be modified. The time for filing a section 48 appeal is long past and the drainage works have been completed.

71. The Appellants did not argue this ground of appeal at the hearing, and it was dismissed.

Improper Valuation of Crop Damage

72. The Appellants claim that the section 30 allowance for crop damage is insufficient and that the valuations used by the Engineer date back to 1991. They are claiming $5,960 for crop loss in 2024 and $3,120 for expected crop loss in 2025 based on current crop values for haylage and hay.

73. This issue is not the subject of a Section 64 appeal. The quantum of the allowance for crop damage should have been appealed under Section 48(1)(c).

74. In calculating their claim for crop loss, the Appellants used an area of 4 acres. Although the values used by the engineer are not appealable under Section 64, there may be a basis for a claim under this section, where it can be established that extent of the land affected by crop loss is larger than the area used by the Engineer in the Report and resulted from a quality of construction issue.

75. The Engineer based the extent of the crop damage area on the working corridor which has an area of 1.2 acres.

76. The Appellants base their calculations on an area of 4 acres. 1.5 of those acres consists of cropland on the far side of the drain which they could not reach to harvest as it would have been imprudent to cross the freshly installed drain.

77. With respect to those 1.5 acres, the fact that these 1.5 acres were going to be landlocked by the new drain, was known at the time that the Appellants could have submitted a Section 48 appeal and should have been appealed then as part of their concern with the amount of the section 30 allowance.

78. The remaining 2.5 acres, they claim, is larger than the 1.2 acre footprint of the working corridor, because the contractor enlarged the footprint due to the muddy conditions. By doing so the contractor was no longer in compliance with the Report and a quality of construction issue is engaged leading to a possible damage award.

79. The evidence of Trevor Little is that the working corridor had increased to 60 metres in some places and that the contractor had to change the trajectory of the drain to move to higher ground. The evidence of the engineer is that the trajectory of the new drain was as intended to achieve minimum cover over the pipe. The drainage superintendent testified that from his observation there did not appear to be any part of the working corridor that had been enlarged by the muddy conditions.

80. The contractor, Ratcliff, was not called as a witness by either party. This was unfortunate. His evidence would have been helpful on this issue to establish whether the evidence of the Appellants on this issue is reliable.

81. However, based on the testimony of the witnesses that did testify and the photographs entered as exhibits, the Tribunal finds that the area affected by crop loss does not exceed the footprint of the working corridor.

82. Accordingly, the claim for crop loss by the Appellants is dismissed.

Claim for Site Cleanup and Seeding

83. The Appellants claim $5,000 (100 hours x $50 per hour) for site cleanup including picking up stones and spreading topsoil. They also claim $1,500 for reseeding the site.

84. This claim was not included in the Notice of Appeal and is therefore not properly before the Tribunal.

85. The Tribunal, however, notes that if this claim had been raised in the Notice of Appeal it would not have been successful as the claim must arise from a quality of construction issue.

86. The onus of proof is on the Appellants to show that the drainage works were not constructed in accordance with the Report.

87. The Report provides for the restoration of the affected lands. The Appellants assert that no restoration was done. The evidence of the drainage superintendent was that restoration was completed in late June 2024 with the grading and seeding of the lands.

88. The Report provides that all areas disturbed by construction shall be left in a condition suitable for cultivation and the final levelling, and the removable of excess material, shall be the responsibility of the landowner. Further the landowner is responsible for the removal of stones under 100 mm in diameter.

89. The Tribunal finds that the site was restored in accordance with the Report. It may be that the Appellants were not satisfied with the restoration but the final clean up and levelling was their responsibility. Any disagreement with this provision in the Report should have been appealed under Section 48.

90. The Tribunal has considered the evidence with respect to the difficulties the contractor encountered on the Appellants’ lands and finds that the contractor did the best that he could do in the circumstances.

91. In making this finding, the Tribunal has taken into consideration the fact the land had been recently disturbed by the construction of the mutual agreement drain and the fact that there had been significant erosion on these lands.

92. The City had provided 25 loads of topsoil in August or September 2024 to the Appellants to compensate them for lost topsoil caused by erosion by works unrelated to and pre-dating the construction of the drain. Perhaps this is the topsoil that Graeme testified that he spread but did not make a claim for. No explanation was given by the Appellants.

93. The Report did not require the City to replant the affected area in high protein premium alfalfa or any other crop. It was to be left in a condition suitable for cultivation with final grading to be done by the owner.

94. The Appellants claim that there was an “agreement” that the lands would be left in the condition in which they were found but presented no evidence of this “agreement”.

95. This ground of appeal is dismissed. Firstly, as it was not properly before the Tribunal not having been included in the Notice of Appeal. Secondly, if it was properly before the Tribunal, on the grounds that based on the findings of the Tribunal, there was no quality of construction issue.

Conclusion

96. This appeal is dismissed.

Costs

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

98. There shall be no other order as to costs and the parties are responsible for their own costs.

Dated at Chatham, Ontario this 17^th^ day of March, 2025.