Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
APPEAL: Ian and Marlene McCool (RE) [Decision]
Norfolk County (RE) [Decision]
STATUTE: Drainage Act, R.S.O. 1990, c. D.17
HEARING: November 12-13, 2025 via Zoom Video Conference
FILE: 013Ronson24
NEUTRAL CITATION: 2026 ONAFRAAT 01
IN THE MATTER OF the Drainage Act, R.S.O. 1990, Chapter D.17, as amended.
AND IN THE MATTER OF a Notice of Appeal to the Tribunal by Ian and Marlene McCool of Courtland, Ontario, under Section 48(1) and Section 54 of the Drainage Act ("Act") with respect to the Ronson Municipal Drain – McCool Petition Drain in Norfolk County.
AND IN THE MATTER OF a hearing held pursuant to Rule 6.04 of the Tribunal’s Rules of Procedure.
BETWEEN:
Ian and Marlene McCool Appellants
– and –
Norfolk County Respondent
Represented by James R. Morgan Represented by Mark Abradjian
Heard via Zoom Video Conference on November 12-13, 2025
Before: Marc Huneault, Chair; John Johnston, Vice-Chair; Tricia Schouten, Vice-Chair
Appearances: Ian McCool – Appellant James Morgan – Mandryk & Morgan, Counsel for the Appellants Krista VanPaemel – Clerk Northfolk County Mark Abradjian – Ross & McBride LLP, Counsel for the Respondent Carly Agro – Student at Law - Ross & McBride LLP Bill Mayes – Drainage Superintendent Will Stoneman – Drainage Superintendent Paul MacIntyre – P. Eng., Drainage Engineer Jacob Rooke – Project Manager Chris Helmer – Hydro Geologist Dwight Smikle – Hydro Geologist Shannon Tweedle - Observer Marlene McCool – Observer
DECISION OF THE TRIBUNAL
1The Agricultural Food and Rural Affairs Tribunal (the "Tribunal") heard this matter virtually on November 12 and 13, 2025.
2The appeals by Ian and Marlene McCool (the "Appellants") were pursuant to section 48(1) and 54 of the Drainage Act, R.S.O. 1990, c. D.17, as amended (the "Act").
BACKGROUND
3The Subject Property is located at 524 Highway 3, R.R. 2 Courtland, Norfolk County (the "Subject Property").
4The Appellants petitioned Norfolk County (the "Respondent") with a Petition for Drainage Works by Owners dated January 10, 2024. The Petition requested construction of a new tile drain, the deepening or widening of existing watercourse (not currently a municipal drain) and to provide a stub to service property and referenced the Ronson Drain as the watercourse.
5The form also provides a notification that a Petitioner, in this case the Appellants, "become financially responsible as soon as they sign a petition". The form also confirms that an engineer will be appointed once the petition is accepted by Council.
6The Respondent accepted the petition and appointed R.J. Burnside & Associates Ltd. as represented by Paul MacIntyre to prepare a report under section 8 of the Act. A drainage report was prepared dated July 17, 2024. (the "Engineer’s Report"). The Engineer’s Report reviewed the site conditions and made recommendations on the construction of a new branch drain to service the area requiring drainage.
7The Engineer’s Report estimated the total cost of the drainage works to be $44,000. A breakdown of the total cost included an estimated $29,000 in engineering services, $9,200 for the construction of the drain, $4,400 in administration and financing costs and $1,400 in allowances.
8The Engineer’s Report assessed a Benefit Assessment of $35,240 pursuant to section 22 of the Act and an Outlet Assessment of $8,760 pursuant to section 23 of the Act.
9The Engineer’s Report was adopted by the Respondent on September 17, 2024.
10On October 11, 2024, the Appellants filed a Notice of Appeal to the Court of Revision pursuant to section 76(4) of the Act. The grounds cited were that the assessment of the Appellants’ land was too high and other land or road should have been assessed that had not been assessed. The Appellants attached a Schedule A to the Notice of Appeal. The Conclusion of Schedule A stated as follows:
"Based on the information available it appears that the improvement of drainage from the subject property would be a benefit for both the subject property and for the neighbouring properties to the east and west, as well as for the seven total properties shown on the Ronson Watershed Plan that all drain towards the southern portion of the subject property."
11On October 23, 2024, the Court of Revision confirmed the Engineer’s Report and dismissed the Appellants’ appeal.
12On November 6, 2024, the Appellants filed two appeals to this Tribunal. The first was pursuant to section 48(1) of the Act and more particularly that the Appellants were dissatisfied with the Engineer’s Report as the benefit to be derived from the drainage works are not commensurate with the estimated cost thereof. The second was pursuant to section 54 and more particularly that the Court of Revision declined to assess other property owners that received a benefit from the McCool Petition Drain.
13The Appellants concede that the work is required. The Appellants agree that there is no legal outlet from the Subject Property to the Ronson Drain and that there is no issue with respect to the proposed construction work.
ISSUES
14Is the benefit derived from the drainage works described in the Engineer’s Report commensurate with the cost thereof? As per above, the Appellants concede that the work is required. (section 48(1) appeal).
15Do the allowances and assessments to the Subject Property appear to be fair and reasonable considering the issues raised by the Appellant? (section 54 appeal).
EVIDENCE OF THE PARTIES
Mr. Paul MacIntyre - Engineer
16Mr. MacIntyre was tendered as an expert witness to provide opinion evidence in respect to both appeals. He introduced his report and adopted the contents of the Engineer’s Report.
17Mr. MacIntyre testified that he was appointed as the engineer pursuant to the provisions of the Act. He has 39 years of experience with civil engineering projects in Southern Ontario and specifically with municipal drainage. He has been accepted as an expert on drainage matters and has prepared 45 reports since 2014 under his own stamp with the PEO since 2014.
18Mr. MacIntyre provided evidence that the properties immediately east and west of the Subject Property have collected and controlled surface waters on their own properties and the owner of 480 Highway 3 property has an outlet to the Ronson Drain.
19Mr. MacIntyre referred to the Watershed Plan and Profile contained at Exhibit F of the Engineer’s Report (the "Watershed Plan"). The Watershed Plan is a portion of the Subject Property only.
20Mr. MacIntyre provided his opinion that the Watershed Plan in combination with how properties in the east and west of the Subject Property are collecting water and providing it to an adequate outlet connected either directly or to a private drain connected to the Ronson Drain.
21He provided evidence of his knowledge and experience with section 21 and 22 of the Act. He stated that benefit is something the engineer is responsible for assessing. He specifically disagreed that any other properties would benefit from the providing the drainage works as outlined in the Engineer’s Report and more specifically what was petitioned for, namely, a legal and sufficient outlet to the Ronson Drain for the Subject Property.
22Mr. MacIntyre confirmed his estimate of the costs to be $44,000. He provided a breakdown of the total cost included an estimated $29,000 in engineering services, $9,200 for the construction of the drain, $4,400 in administration and financing costs and $1,400 in allowances. He confirmed that the construction cost of $9,200 included a $2,000 contingency allowance so that his estimate of the actual construction cost was $7,200.
Mr. Ian Thomas McCool
23Mr. McCool is one of the Appellants. He worked as a construction maintenance electrician. He was not qualified as an expert.
24Mr. McCool testified that he purchased the Subject Property in 1989 and constructed his house on the Subject Property.
25He stated that the Subject Property did not experience any issues with flooding prior to 2017-2018 when the neighbouring property owned by Bright Construction surface was altered. Mr. McCool testified that Bright Construction added fill and installed a ditch which resulted in surface water running onto the Subject Property.
26In Fall 2023, Mr. McCool retained JR’s Waterproofing and Structural Repair to perform work to resolve the surface water issues from the Bright Construction property. He produced two invoices in the amount of $210,971.00 and $220,592.95.
27Mr. McCool stated that the cost to complete the "hook-up" to the Ronson Drain was only $5,000. He disputed the cost of $9,200 for construction costs and stated that the engineering fees provided him with "no commensurate benefit".
28He admitted that he runs a hose across a neighbour’s property to drain a sump pump located on the Subject Property.
Mr. Chris Helmer – Geoscientist
29Mr. Helmer was admitted as an expert on the interaction between surface water and subsurface water in respect to the section 54 appeal only. He introduced his report dated March 28, 2025, and an addendum to this report dated October 27, 2025.
30The Appellants tendered Mr. Helmer as an expert on whether there was water flowing from surrounding properties to the Subject Property.
31Mr. Helmer testified that he walked the Subject Property and made observations. He did not conduct any independent investigations, nor did he review any investigations. He relied upon well water records from 1958, 1978 and 1982. He also relied upon a draft Watershed Plan which was prepared for discussion purposes for a site meeting held on May 7, 2024. He admitted that this was not the Watershed Plan in the Engineer’s Report.
32He also relied upon the Ontario Source Protection Information Atlas mapping to make conclusions about surface topography.
33He provided an opinion that the surface and groundwater conditions experienced at the Subject Property are a direct result of grading activities on the neighbouring properties. He testified that the activities exacerbated the natural surface water flows and natural groundwater levels at the Subject Property.
34He then gave a further opinion that mitigation of the activities would be a material benefit to all properties.
35Mr. Helmer was not qualified as a drainage engineer. He has no experience whatsoever with the definition and assessment of benefit under the Act. He admitted under cross-examination that he had never read the definition of benefit under the Act. He further admitted that he did not conduct any independent testing or investigations in the preparation of his report.
Mr. Bill Mayes – Respondent’s Drainage Superintendent
36He testified that he attended the Subject Property and made observations. He testified that the Appellants installed a drain with a sump pump and ran a hose across the neighbour’s property.
37Based on his observations, that properties located north of the Subject Property drain to the east. The properties east of the Subject Property do not enter onto the Subject Property because of a retaining wall and swale.
Mr. Dwight Geoffrey Smikle – Hydrogeologist and geoscientist
38Mr. Smikle was qualified as an expert on hydrogeology and geoscientist to provide opinion evidence on groundwater and groundwater charge and discharge. He submitted his report dated April 24, 2025.
39He testified that there was limited data available about the groundwater conditions at the Ronson Drain making determinations more difficult or unable to made with certainty. He reviewed the water well records relied upon by Mr. Helmer and opined that the records had errors and there was no certainty about the records accuracy overall.
40He testified that based upon his knowledge and experience that groundwater will follow topographic contours. The water will flow down from the head gradient and that subsurface water will likely mirror the surface topography.
FINDINGS AND ANALYSIS
The Section 48(1) appeal
41The Appellants admit that the proposed drainage works are required. They challenge whether the benefit is commensurate with the costs.
42The Respondent introduced the Engineer’s Report. The construction costs together with any allowances and administration costs are reasonable. The Appellant had not introduced any expert evidence to the contrary other Mr. McCool’s belief that the work could be completed for $5,000. There are two elements to this appeal. Accordingly, the $9,200 for the construction of the drain, $4,400 in administration and financing costs and $1,400 in allowances are commensurate with the cost and should not be altered. We note that the difference between Mr. McCool’s personal estimate and the Engineer’s Report is only $2,200. Mr. McCool has no qualifications or experience in this field and did not produce any independent evidence to substantiate his claim. Accordingly, we accept the evidence from the Engineer’s Report.
43The Appellants also objected to the payment of any engineering fees. The Act provides for the appointment of an engineer to conduct an examination of the area requiring drainage and to prepare a report. The petition signed by the Appellants alerted them to this possibility. The Appellants argue that there was "no commensurate benefit" to the Drainage works. Simply put, the Appellants petitioned the work and acknowledged on the form that they would be responsible for the engineering fees whether the drainage works would be approved or not. The Tribunal finds that the works are commensurate with the costs.
44In addition, the Act mandates that the Respondent engage the services and professional guidance from a drainage engineer. The Appellants did not introduce any report or evidence that the professional fees were not commensurate with the cost of the drain. We find that the engineering fees are commensurate with the cost and should not be altered.
Section 54 appeal
45The Appellants argue that there is a benefit to the surrounding properties from water flowing to the Subject Property. The Engineer’s Report at Appendix C-1 assessed Benefit Assessment at $35,240 and Outlet Liability at $8,760.
46The Appellants rely upon Mr. Helmer. Mr. Helmer did not conduct any independent investigation as to the subsurface conditions. His report and his evidence were unsupported. On the other hand, the evidence of Mr. MacIntyre and Mr. Smikle did rely upon a LIDAR testing. Their evidence was consistent with the Engineer’s Report.
47The Appellants have not provided sufficient evidence that the decision of the Court of Revision was incorrect in that they have not shown that any neighbouring lands should have been assessed. The Tribunal prefers the evidence of Mr. MacIntyre and Mr. Smikle to that of Mr. Helmer.
48The Appellants advance two arguments in support of their assertion that other property owners ought to have been assessed a benefit. The first argument is at it relates to the word "benefit" as set out in the Act. The second argument is whether there is water flowing from the neighbouring properties or surrounding properties to the Subject Property which would necessitate a benefit be assessed to said surrounding properties.
49The first argument is that there was no detailed analysis in the Engineer’s Report on whether any other property would obtain a benefit from the McCool Drain Petition. Mr. MacIntyre conducted an investigation, prepared a LIDAR test, and met with the owners of the neighbouring properties together with the Appellants.
50It may be helpful to set out those sections of the Act to which reference will be made hereafter with emphasis added.
Section 1 of the Act defines "benefit" as:
the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures; ("avantage")
Section 21 of the Act provides that it is the engineer in the report who is to distinguish assessments. Section 21 provides as follows:
The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefor.
Section 22 of the Act then provides guidance to the engineer in assessing a benefit:
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.
Section 23 of the Act
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).
Certain owners not to count for or against petition
(4) The owners of the lands and roads made liable to assessment only under subsection (1) or (2) shall neither count for nor against the petition required by section 4 unless within the area therein described. R.S.O. 1990, c. D.17, s. 23 (4).
51The Appellants make several arguments to challenge the Engineer’s Report. The Appellants invite the Tribunal to speculate or draw inferences that require a professional opinion from a drainage engineer. They rely upon a topographical map created by Burnside Engineering. The Appellants argue that the topographical map confirms a difference in elevation. There is no opinion evidence to support this argument. The topographic map notes with arrows the overland flow route from neighbouring properties which the map indicates does not enter onto the Subject Property. In addition, our review of this map does not indicate a significant difference in elevation between the properties, and we cannot speculate as to the significance of any differences in elevation on the issue of benefit assessment. We note that the Appellant admits that there is little evidence on how much water is entering the Subject Property, if any, from the neighbouring properties. The Tribunal is of the view that there is no evidence of how much water, if any, is entering onto the Subject Property.
52The Appellants also refer to a Watershed Map prepared for a meeting with the neighbours which Mr. MacIntyre stated was for discussion purposes during his investigation. The intention of the document was not for the purposes of assessing a benefit. A review of the Watershed Map does not support the inference the Appellants are asking this Court to make and again invites speculation as to the waterflow. The arrows do not point to the Subject Property other than one arrow which Mr. MacIntyre stated flowed to a swale that ran along the railway line and not onto the Subject Property nor into the recommended construction.
53The Appellants in their Reply reference pages 2 and 3 of the Engineer’s Report and ask this Tribunal to draw inferences based upon the notes therein. More particularly, they reference comments noted by Jacob Wolf, Abram Wolf and Petra Koert. The Appellants could have subpoenaed the witnesses and elected not to. It is hearsay and is admissible only for a limited purpose. The notes are by the engineer and assisted Mr. MacIntyre in arriving at his conclusion that the primary purpose of Engineer’s Report is to provide a legal and sufficient outlet for the Subject Property. The purpose of the notes was not for the Tribunal to draw inferences from the comments made in the notes.
54The second argument dovetails with the first argument in that the Appellants reference subsurface water as it relates to benefit. They rely upon Mr. Helmer’s evidence. As indicated earlier, Mr. Helmer is not a drainage engineer and had no experience or knowledge on the application of the Act. He conducted no independent investigation of the subsurface conditions other than a site visit and a review of water well records in the area that are somewhat dated. His evidence was of no assistance to the Tribunal.
55The Appellants and the Respondent both rely upon Anderson v Thurlow (Town) 1968 ONDR 1, a decision of S.L. Clunis, Judge, Drainage Referee. The drainage referee cited Mr. Herbert Todgham, and found his work "most helpful" on the topic of benefit. Mr. Todgham’s method is often cited and applied in the application of a benefit under the Act. The drainage referee cited Mr. Todgham and we reproduce same in part:
"To assess for benefit there must be a special benefit to the land assessed, not just some probable benefit to all of the lands in the locality."
56We note the Appellants concerns regarding benefits. More particularly, and albeit was not stated explicitly, the evidence tendered only addressed outlet liability which was assessed at $8,760. In Anderson¸ the drainage referee had the benefit of expert evidence on behalf of the appellants. There is no such assistance in this case. Mr. MacIntyre in his report investigated the Subject Property and neighbouring properties. He made a determination that the only property to benefit from the construction of the drainage works was the Subject Property. We agree with the Respondent who cited Rose Beach Line Drain – Outlet Structure (RE), 2018 ONAFRAAT 1
The Tribunal will only impose a result of its own creation in the rarest and most exceptional circumstances. It can make an order based only on the evidence before it.
The evidence submitted by the Appellant does not meet this threshold. Accordingly, this appeal is dismissed.
ORDER
57For the reasons stated above, the Tribunal orders as follows:
a. The appeal under Section 48(1) of the Act is dismissed.
b. The appeal under Section 54 of the Act is dismissed.
c. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works.
d. There shall be no Order as to costs and all parties shall be responsible for their own costs.
Dated at Sudbury, Ontario this 16th day of January, 2026.
Released: January 16, 2026
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.