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:

Harrop Municipal Drain (RE) [Decision] Haldimand County Andrew and Dorothy Lawrence; Bob, Marlene and Cheryl Phibbs; David Phibbs; David and Katherine Phibbs; 687507 Ontario Inc. and Lorne Mattice, 2256938 Ontario Inc., L F Mattice Elevators Inc., Marjorie Slack and Raymond and Tracey Phibbs

Harrop Municipal Drain (RE) [Decision] 2025 ONAFRAAT 09

STATUTE:

Drainage Act

HEARING:

March 11 and 12, 2025

DATE OF DECISION:

May 22, 2025

09Harrop24

NEUTRAL CITATION:

2025 ONAFRAAT 09

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

AND IN THE MATTER OF the Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Andrew and Dorothy Lawrence; Bob, Marlene and Cheryl Phibbs; David Phibbs; David and Katherine Phibbs; 687507 Ontario Inc. and Lorne Mattice; 2256938 Ontario Inc.; L F Mattice Elevators Inc.; Marjorie Slack and Raymond and Tracey Phibbs under Section 54 of the Drainage Act, with respect to the Harrop Municipal Drain in Haldimand County.

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

BETWEEN:

Andrew and Dorothy Lawrence; Bob, Marlene and Cheryl Phibbs; David Phibbs; David and Katherine Phibbs; 687507 Ontario Inc. and Lorne Mattice, 2256938 Ontario Inc., L F Mattice Elevators Inc., Marjorie Slack and Raymond and Tracey Phibbs Appellants

– and –

Haldimand County Respondent

Self-Represented

Represented by Eric Florjancic Heard via Zoom: March 11 and 12, 2025

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

Appearances:

Andrew and Dorothy Lawrence - Appellants Bob Phibbs – Appellant David Phibbs – Appellant Lorne Mattice - Appellant Marjorie Slack – Appellant Raymond Phibbs – Appellant Eric Florjancic - Counsel, Haldimand County Danielle Anders – Engineer who wrote the Report Tracey Cassidy - Deputy Clerk, Haldimand County

DECISION OF THE TRIBUNAL

Preliminary Matters

1The Agricultural Food and Rural Affairs Appeal Tribunal (“the Tribunal”) heard this matter virtually on March 11 and 12, 2025.

2This appeal by Andrew and Dorothy Lawrence; Bob, Marlene and Cheryl Phibbs; David Phibbs; David and Katherine Phibbs; 687507 Ontario Inc. and Lorne Mattice; 2256938 Ontario Inc.; LF Mattice Elevators Inc.; Marjorie Slack; and Raymond and Tracey Phibbs pursuant to section 54 of the Drainage Act (“the Act”) concerns the Harrop Municipal Drain (“the Drain”) in Haldimand County. The Engineer’s Report, dated August 16, 2923 (“the Report”), was prepared by GM BluePlan Engineering Limited and was signed by Danielle Anders, P. Eng. (“the Engineer”).

3Tracey Cassidy, Deputy Clerk of the County, performed the duties of Clerk of the Tribunal. The County filed an Affidavit of Service, dated January 31, 2025, as proof that all parties had been served with the Notice of Hearing.

4The Report was completed under Section 76 of the Act to provide a new assessment schedule for maintenance and repair of the Drain. The County initiated the appointment of the Engineer in compliance with the Drainage Referee’s order, dated November 5, 2018.

5During the hearing proceedings Lorne Mattice withdrew his appeals which included the appeals of 687507 Ontario Inc. and Lorne Mattice; 2256938 Ontario Inc.; LF Mattice Elevators Inc.

Background

6The Harrop Drain is a nearly 7 km long open drain with an outlet on a branch of the Sandusk Creek, south of Lot 11, Concession 9 in the former Township of Walpole (now Haldimand County).

7The Harrop Drain was established through an Engineer’s Report dated December 5, 1957 (“1957 Report”) for the Township of Walpole in the County of Haldimand. Prior to the municipality’s adoption of the 1957 Report the sections of the new Harrop were Award Drains dating back to December 1894 and June 1928, respectively, pursuant to the Ditches and Watercourses Act.

8In 1948, the Hagersville Wastewater Treatment Plant (“the WWTP”) was built and began discharging to the open ditch (Award Drain), providing more continuous flow. According to anecdotes, prior to this, parts of the ditch would often dry up during the summer.

9After the adoption of the 1957 Report, some landowners on the drain were opposed to the Harrop Drain when they found out they would be assessed costs for its maintenance. Several of the landowners appealed their assessments to a County Court Judge and two won their appeals, arguing they had no drainage issues and did not benefit from the drainage improvements. The land in question was Lot 13, Concession 10 and Lot 10, Concession 11 in the Township of Walpole. A third landowner, Rex Phibbs, (property now owned by his son, David Phibbs) had his benefit liability assessment reduced somewhat.

10Maintenance on the Harrop Drain was last completed in 2015 and 2016. The work was assessed under By-law 1879/17 which prompted appeals to the Drainage Referee in 2017. Two of the appeals were from properties that had had their assessments eliminated in their 1958 appeals and thus the owners argued should not be included in the 2017 assessment. A third appeal by David Phibbs (son of the former owner Rex Phibbs) whose property had won a reduction in assessment in the 1958 appeal sought to have that reduction accounted for the in the 2017 assessment. These three properties had their assessments adjusted by the Drainage Referee in the November 5, 2018 ruling.

11In the Drainage Referee’s Order dated November 5, 2018, the Referee ordered the County of Haldimand to procure the report of an engineer to vary the assessment schedule for the maintenance and repair of the Harrop Drain having regard for changes in conditions and circumstances since the 1957 Report.

12The Harrop Drain was originally in the Township of Walpole. Since 2001, due to various municipal amalgamation and boundary changes, the Drain is now solely within the jurisdiction of Haldimand County.

Issues

13The issue before the Tribunal is, should the assessments of the appellants be reduced or eliminated?

Haldimand County’s Evidence and Arguments

Danielle Anders, P. Eng., GM BluePlan Engineering Limited

14Ms. Anders, a professional engineer, prepared the Report. She was qualified as an expert witness on behalf of Haldimand County.

15Ms. Anders provided an overview of the Drain and the Report. She noted that the Drainage Referees decision stated that the 1957 assessment schedule from the Engineers Report as amended on appeal is out of touch with existing conditions and current assessment practices and that judges who now have authority on assessments would assess these landowners for outlet liability because their lands contribute water to and therefore use the Harrop Drain.

16A section 76 report, as ordered by the Referee, provides the Drain with a report that aligns with current industry best practices.

17GMBP now GEI was appointed in September 2019 to complete new assessment schedule for maintenance and repair based on the Drainage Referee order of November 5, 2018​. Three public information meetings​ were held to introduce the residents to the project and to allow them to learn more about the Drainage Act. Haldimand County Council held the Meeting to Consider the report on December 12, 2023.

18The Harrop Drain watershed is an area of 1,025.4 hectares, the drain is approximately 7 km in length and outlets into the Sandusk Creek just south of Lot 11, Concession 9 in the former Township of Walpole.

19GMBP now GEI was appointed by Haldimand County to complete a Section 76 report under the Act​. A section 76 report is used to update a drain’s Assessment Schedule for Maintenance and Repair by the identifying the landowners and land usages in a drainage watershed​. A section 76 report is typically prepared when the existing Assessment Schedule becomes out of date due to land severances, farm consolidations, land use changes, connections or disconnections from the drain, etc.​ A section 76 does not authorize the execution of any work but provides an equitable means to distribute future maintenance and repair costs.

20In the preparation of the s. 76 report the Todgham Method was used as it is known as an Industry Best Practice​. The properties were assessed based on their outlet liability, which means the assessment is a based on the proportion of storm water runoff each property is estimated to contribute to a Drain, depending on its land use. Land use types are assigned an equivalent area factor to account for surface permeability. ​ Agricultural land is the baseline with an equivalent area factor (“EAF”) of 1.0.​ Surfaces with high permeability which absorb runoff, such as a forest, reduce the volume of runoff flowing to the Drain so have an EAF of less than 1.0. ​ Surfaces with low permeability, such as paved areas, cause runoff to flow over the ground and increase the volume of water entering the Drain have an EAF greater than 1.0. Industrial land has been given an EAF of 3.0.

21Each parcel area is multiplied by its EAF to determine its contributing portion of the watershed​. The Hagersville Wastewater Treatment Plant (WWTP), industrial land, contributes treated sanitary effluent and storm runoff to the Drain, therefore applying the Todgeham Method for the WWTP is not appropriate in this instance. To determine the contribution of the WWTP to the Drain the Engineer used in her calculations the normal design flow of the WWTP, the area of land the WWTP occupies and the annual precipitation for Hagersville. The calculations included the assumption that a third of the precipitation becomes runoff. The calculation resulted in an EAF for the WWTP of 351.4. This result in the WWTP being assessed for 29.2% of the total outlet liability.

22At the January 18, 2024 Court of Revision, GMBP provided evidence regarding the procedures followed for the assessments and several appellants spoke regarding their cases. All appellants felt their properties had been assessed too high, most with the opinion that the County should pay a larger proportion of the total assessment. The Court of Revision privately deliberated for approximately an hour then pronounced their decision that the methodology used to determine the assessment for the WWTP should be altered to increase its proportion. Instead of assuming that a third of precipitation that falls in the watershed over a year becomes runoff, an assumption of 20% would make the WWTP contribution a larger component of total runoff.

23The assessment schedule was subsequently updated as per the Court of Revision (“COR”) directive. The WWTP EAF became 585.1 and the WWTP was assessed for 40.7% of the outlet liability.

24Changing the EAF for the WWTP from 351.4 to 585.1 increased the WWTP proportion from 29.2% to 40.7%. The County's total assessment increased from 36.2% to 46.6%. The effect of increasing the County’s total assessment lowers the total assessments of the Appellants.

Engineer’s Response to David Phibbs property at 852 Concession 10

25The Engineer was appointed to complete a Section 76 report and developed a methodology under the scope of the project to fairly and equitably assess the WWTP as it is part of the Drain. The assessment methodology resulted in the WWTP being assessed 29.2%. The COR subsequently adjusted that to a 40.7% assessment. The methodology employed utilizes the ultimate design flow at the WWTP to ensure the most conservative flow scenario to account for overall fluctuations in flows.

26The Engineer is not responsible for the consideration of County taxes, where tax dollars are allocated, or how they are used. Drainage assessments are independent of taxes. Any design improvements to alleviate flooding or otherwise are beyond the scope of a Section 76 report. A Section 76 report only deals with updating an assessment schedule for future maintenance, it does not address compensation for crop loss or injuries.

27The WWTP is part of the Drain Watershed so was assessed in the most fair and equitable approach as determined by the Engineer. The Engineer is not responsible under a Section 76 to determine whether the WWTP should or should not be part of the drain but to assess all properties within the watershed in a fair and equitable manner. The appellant’s property is part of the Harrop Drain watershed, therefore it was assessed as per industry best practices using the Todgham Method as described above. Property drainage issues, and maintenance schedules are to be addressed to the County’s Drainage Superintendent, they are not part of scope of this Section 76 report.

Engineer’s Response to David and Katherine Phibbs - property at 878 Con. 10

28The rainfall data record utilized was the largest rainfall record that is publicly available. The Engineer wanted to have a long record of data to determine an appropriate average annual rainfall value. The data used was collected from Environment Canada, 1981-2010, Canadian Climate Normals. This is a reliable government source of long-term rainfall records. To avoid any annual highs and lows, a large data set was required to determine an appropriate long-term average.

29The appellant questions the assumption of 1/3 of precipitation becoming runoff. The engineer reviewed the watershed and as it has mixed land use with a combination of agricultural, industrial, open areas, and residential, the estimate represents an appropriate average runoff rate based on runoff coefficients from the American Society of Civil Engineers and Water Environment Federation. Runoff is highly variable and dependent on catchment characteristics such as soil type, antecedent moisture conditions, vegetation, impervious surfaces, surface slope, and intensity of precipitation, thus it is not a fixed value and an assumption is necessary as an approximation of typical conditions.

Engineer’s Response to Bob, Cheryl and Marlene Phibbs

30In general, the Drain provides an outlet to residential owners, the WWTP, and agricultural owners within the watershed. It serves the entire watershed. If maintenance is completed, only Landowners upstream of maintenance work are assessed, therefore if more maintenance is required due to the WWTP, only those properties upstream of the work are assessed charges.

31The Engineer has developed an assessment methodology which accounted for the EAF) of the WWT, to ensure a fair and equitable assessment.

32This is a Section 76 report, therefore any investigation concerning silting, sludge, green algae, contamination or household connections to the drain are not within the scope of work. If the landowner feels there has been a spill or other contamination, it should be directed to the County, the Ministry of the Environment, Conservation and Parks (“MECP”), or the Spills Action Centre.

33At the time of the report, the quarry in question has not received approval to operate therefore cannot be considered for inclusion in the Harrop Drain watershed. If this quarry project gets approval to operate, the drain assessment would be addressed at that time. This is standard practice, and the engineer cannot consider properties and their use that do not exist nor have approval at the time of the completion of the report.

34The Appellant’s response does not provide any evidence or additional information to indicate there are any current issues with the assessment approach or procedure. Nor was there any evidence provided that the individual’s property assessment has been miscalculated.

Engineer’s Response to Andrew and Dorothy Lawrence

35While the area around the property appears relatively flat, based on the Digital Elevation Model (DEM), it generally flows to the Jane St. storm sewer which ultimately drains to Harrop Drain. The DEM was created from LiDAR (Light Detection and Ranging) collected by Ontario Ministry of Natural Resources and Forestry, Provincial Mapping Unit. LiDAR is a method to collect data using aircraft and sensors that detect the reflections of a pulsed laser beam to measure variable distances from earth. This data has an accuracy of 30cm.

36The DEM was used to determine the topography of the area and the direction in which surface water flows to delineate an appropriate watershed boundary. This method is the most modern method available to complete this work. The data source utilized is the largest, most current and available data set for this area at the time of the creation of the watershed boundary. The Engineer provided a diagram with arrows depicting simplified channels derived from the DEM which depicted surface flow away from the appellant’s property towards the Harrop Drain.

Engineer’s Response to Margorie Slack

37As previously described, the engineer followed standard drainage engineering methodology to determine outlet liability for the Schedule of Assessment of Harrop Drain.

Engineer’s Response to Raymond and Tracey Phibbs

38As previously described, the engineer followed standard drainage engineering methodology to determine outlet liability for the Schedule of Assessment of Harrop Drain.

39The rainfall data record that was used from Environment Canada records provided an average rainfall of 956.2 mm based on over 20 years of data. The recent data provided by the Appellant showed a five-year average (2019-2023) of 34.172” which is equivalent to 868.0 mm.

40For the record, to illustrate the relative sensitivity of the precipitation value, if it were assumed that 20% of precipitation becomes runoff using 868 mm for rainfall, the resulting WWTP factor would increase to 644.6, thus increasing the WWTP proportion of assessments to 43.0% instead of 40.7%.

Appellants Evidence and Arguments

Andrew and Dorothy Lawrence – Appellants Property Roll #15 40 010 5500 0000

41The Lawrence’s property is located at 57 Jane Street, Hagersville, Ontario, Roll #15 40 010 5500 0000. The property is 679 m2.

42Andrew Lawrence argued that the water from his property does not drain into the Harrop drain. His home is located in a residential area on the corner of Jane and Sarah Streets in the town of Hagersville. It was his assertion that the water from his land does not enter the storm water drain system but soaks into the ground and runs off to the quarry, known as Crystal Lake, at the end of Jane Street. Mr. Lawrence further maintained that the Engineer had not been on site to determine the drainage on his street.

43Mr. Lawrence stated that none of properties on Sarah Street should be assessed by the Harrop Municipal Drain as none of them were in the Drainage Area.

Bob, Marlene and Cheryl Phibbs - Appellants Property Roll #33 20 071 2100 0000

44The property of Bob, Marlene and Cheryl Phibbs is located at 3740 Hwy 6, Hagersville, Roll # 33 20 071 2100 0000 and is 286447 m2 or 70.8 acres in size.

45Mr. Bob Phibbs stated that to his knowledge, the Hagersville Wastewater Treatment Plant is the only waste water treatment plant that an Engineer has had to deal with.

46Mr. Bob Phibbs stated that in 2015, when the Drain was cleaned out, it was rerouted at a neighbouring property and the Engineer at the time redirected the Drain without there being a study. He maintains that at his property the topography is flat and the drain is close to bedrock thereby causing problems for drainage.

47He maintains that it is not the runoff from farm fields that is using the drain predominately, but the WWTP that is providing water to the Drain daily. Mr. Bob Phibbs expressed concerns that within the Town of Hagersville there is grey water being discharged from properties and entering directly into the Drain. He noted that at his property there is green algae in water of the Drain.

48Mr. Bob Phibbs opined that as farmers they should not be assessed for the maintenance of the Drain as the water from the upstream causes contamination and has increased volume of water in the Drain so there is a constant flow. Mr. Bob Phibbs stated that the Drain was not cleaned out for 58 years and the first cleanout was in 2015.

49On cross-examination, Mr. Bob Phibbs stated that he did not know exactly what all was included under section 76 but that in his mind this all comes down to dollars and cents and it is going to cost the individuals money for the benefit of the Town of Hagersville.

50Mr. Bob Phibbs raised his concern that the Municipality did not communicate with the landowners prior to the Drain cleanout and that their first knowledge of the cleanout came when the cleanout commenced and equipment was driving all over where he believed they were not supposed to be.

David Phibbs - Appellants Property Roll #33 20 070 4700 0000

51Mr. David Phibbs’ appeal is of the assessment on his land at 852 Concession 10 Walpole, Hagersville, ON, Roll # 33 20 070 4700 0000. The parcel of land is 288,869 m2 or 71.4 acres.

52Mr. David Phibbs is a third-generation farmer, and his family has lived at Lot 11, Concession 10 Hagersville since 1929. His farm is parallel to the Harrop Drain on Lot 12, Concession 10. It is Mr. David Phibbs’ assertion that the same surface water leaves his land today as it did in 1929; then through a small drainage ditch and now by the Harrop Drain. It is his opinion that he has no need for this Drain.

53Mr. David Phibbs, drawing on information gathered from Haldimand County, noted that the volume of water discharged from the WWTP has increased by 30% from 2009 to 2023 (14 years). Mr. David Phibbs further noted that the Town of Hagersville’s population has increased by 760 residents in the past 50 years and will continue to grow.

54Mr. David Phibbs expressed concern that when the Drain is next cleaned out under the 10-year maintenance plan, his land will be contaminated by sewage sludge removed from the Drain. Mr. David Phibbs is of the opinion that the WWTP should be assessed for 100% of the clean out and maintenance of the Drain.

55In cross examination, he stated that he relies on the 1958 ruling of the County Court Judge, that stated that only Hagersville is benefiting from the upgraded Hagersville Drain. Mr. David Phibbs acknowledged that an assessment schedule including more than Hagersville and the WWTP was produce in 1959.

David and Katherine Phibbs – Appellants Property Roll # 33 20 070 4750 0000

56David and Katherine Phibbs’ property is located at 878 Concession 10, Walpole, Hagersville, Roll #33 20 070 4750 0000. The parcel of land is 3939 m2 or 1 acre in size.

57David Phibbs questioned the currency of the rainfall data. The data was from 1993 – 2022. In David Phibbs opinion it was out of date. Mr. David Phibbs noted that he uses a septic tank system for sewage and objects to the Hagersville residents flushing their waste into the drain and ditch that he pays for.

Marjorie Stack- Appellant Property Roll # 15 90 071 9200 0000

58Ms. Slack’s appeal is of the assessment of her land at 107 Main St, S., Hagersville, Roll # 15 90 071 9200 0000. The parcel of land is 173,654 m2 or 42.9 acres in size.

59Ms. Slack opined that the drain is only benefiting Hagersville and not any of the landowners. Ms. Slack does not feel that she should be paying anything to have the drain cleaned out. In her opinion, when she is paying to have the Drain cleaned out she is paying to take care of Hagersville sewage plant. She believes she gets no benefit from this because she is on a private septic system which she maintains.

Raymond and Tracey Phibbs – Appellants Property Roll # 33 20 070 4810 0000

60Raymond and Tracey Phibbs’ appeal is of the assessment of their land at 948 Concession 10, Hagersville, Ontario, Roll #33 20 070 4810 0000. The parcel of land is 410,102 m2 or 101.3 acres in size.

61Mr. Raymond Phibbs’ expressed his concerns about the drain, providing his opinion, based on his experience from having lived at this location for the past 30 years. Raymond Phibbs questioned the need to clean out the drain every 10 years when for 60 years it did not require any cleaning out.

62Mr. Raymond Phibbs claims that there is no advantage to having this drain run through his property. He observed that the drain wanders through about 10 acres of his property. He stated that he has left berms around the Drain to help prevent washouts when there are heavy rains.

63Mr. Raymond Phibbs opined that it doesn’t seem right when this Drain that doesn’t benefit him, is utilized for the benefit of the WWTP while he pays taxes to the to this Municipality, that he is further being assessed for the maintenance of this Drain. Mr. Raymond Phibbs feels he should be compensated for the Town of Hagersville’s wastewater moving across his property.

The Law

64The Act states:

Appeals

52 (1) An owner of land assessed for the drainage works may appeal to the court of revision on any of the following grounds:

1. Any land or road has been assessed an amount that is too high or too low.

2. Any land or road that should have been assessed has not been assessed.

3. Due consideration has not been given to the use being made of the land.

Appeal to Tribunal

54 (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

Analysis and Findings

65Appellants Bob, Marlene and Cheryl Phipps; David Phibbs; David and Katherine Phibbs; Marjorie Slack and Raymond and Tracey Phibbs did not dispute that their properties are within the Drainage area. Appellants did not dispute the Equivalent Area Factor’s assigned to their properties.

66Appellants are of the opinion that the WWTP was assessed too low and should be assessed for 100% of cost of maintenance of the Drain.

67The Tribunal did not hear any evidence in this hearing to substantiate the allegation that only the WWTP benefits from this drain. The Appellants did not provide any evidence or alternate methodology to calculate an alternate assessment for the WWTP.

68Appellant Andrew Lawrence disputed that his property is in the Drainage area. The Engineer utilized LiDAR to determine elevations at the Lawrence and neighbouring properties. Mr. Lawrence provided antidotal evidence of his observations of water flow. The evidence of the Engineer when weighed against the evidence of Mr. Lawrence was more compelling. On the balance of probabilities, the Tribunal accepts the evidence of the Engineer that the property of Andrew and Dorothy Lawrence is within the Drainage area.

69Appellants raised the concern that the water that is released by the WWTP is contaminated. This environmental concern is outside the scope of a section 76 report and therefore this hearing.

70Appellants concerns about crop damage and drain design cannot be addressed within the scope of a section 76 report.

71The Tribunal accepts that appeals of 687507 Ontario Inc. and Lorne Mattice, 2256938 Ontario Inc., L F Mattice Elevators Inc. were withdrawn.

Order of the Tribunal

72The appeals are dismissed.

73The non-administrative costs of the Municipality with respect to this appeal shall form part of the costs of the drainage works.

74There shall be no other order for costs and all parties are responsible for their own costs.