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:

John Ryan Anderson Jacqueline Marie Anderson (RE)

[Decision]

Municipality of West Perth (RE) [Decision]

STATUTE:

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

HEARING:

Via Zoom Video Conference on March 9 and 10, 2026

DATE OF DECISION:

April 24, 2026

00812th Con. Drain25

NEUTRAL CITATION:

2026 ONAFRAAT 10

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 Agriculture, Food and Rural Affairs Appeal Tribunal from John Ryan and Jacqueline Marie Anderson of Ottawa, Ontario, under Section 54 of the Drainage Act (“Act”) with respect to the Branches A & O of the Twelfth Concession Drain in the Municipality of West Perth.

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

BETWEEN:

John Ryan Anderson Jacqueline Marie Anderson Appellants

– and –

Municipality of West Perth Respondent

Self-Represented

Self-Represented

Heard: Via Zoom Video Conference on March 9 and 10, 2026

Before: Robert Fuller, Vice-Chair; Don McNalty, Vice-Chair; Rod de Wolde, Member

Appearances:

John Ryan and Jacqueline Marie Anderson - Appellants

James Hutson, Clerk - Municipality of West Perth - Respondent

Brandon Widner, P. Eng. - Spriet Associates

Ken Smith, P. Eng. – D.M. Wills Associates Limited

DECISION OF THE TRIBUNAL

1. The Agricultural Food and Rural Affairs Tribunal (the “Tribunal”) heard this matter virtually on March 9 and 10, 2026.

2. The appellants John Ryan and Jacqueline Marie Anderson (the “Appellants”) brought an appeal from a decision of the Court of Revision on October 6, 2025 pursuant to Section 54 of the Drainage Act, R.S.O. 1990, c. D.17, as amended (the “Act”) with respect to Branches A & O of the Twelfth Concession Drain in the Municipality of West Perth (the “Drain”).

PRELIMINARY MATTERS

3. After receiving the Appeal, the Tribunal issued an order making all landowners assessed or compensated in the Engineer’s Report, parties to the appeal. The Municipality filed an Affidavit of Service as proof that all parties had been served with the Notice of the Hearing. This affidavit became Exhibit 1 at the hearing.

BACKGROUND

4. An Engineer’s Report (the “Report”) was prepared by Spriet Associates, Engineers (“Spriet”) dated July 22, 2025 pursuant to Sections 4 and 78 of the Act to investigate the reconstruction of the “A” Drain and the construction of the “O” Drain of the Twelfth Concession Municipal Drain serving parts of Lots 11 and 12, Concession 13 and parts of Lot 23, Concession M.R.W. in the geographic township of Fullarton, in the Municipality of West Perth.

5. Work on the ‘A’ Drain was initiated under Section 78 of the Act due to a request from a number of owners whereas work on the ‘O’ Drain was initiated by a petition under Section 4 of the Act.

6. The Twelfth Concession Drain was last reconstructed pursuant to a report submitted by W.J. Dietrich, P. Eng., dated January 6, 2014 (the “Dietrich Report”), and consisted of the improvement of the Main Drain, including deepening of approximately321 lineal meters and enclosing approximately 614 lineal meters with 750mm diameter tile. The report also called for approximately 248 linear meters of 300mm to 525mm concrete tile. The 525 mm tile replaced an open drain and became part of the ‘A’ Drain.

7. After a site meeting on May 13, 2025, and later discussions with the owners and a field investigation and survey, the Report dated July 22, 2025 with its recommendations was delivered to the Respondent Municipality of West Perth (the “Respondent”).

ISSUES

8. Should the Appellants receive a reduction of their Benefit assessment levy, due to a reconsideration of relevant circumstances and thereby a corresponding reduction in their total assessment for the Drain?

EVIDENCE

Evidence of Brandon Widner, P. Eng., Spriet Associates

9. Mr. Widner was qualified as an expert witness and testified on behalf of the Municipality and presented the Report.

10. Spriet were appointed as engineers on this project in April, 2025 after a request by certain landowners looking for relief from flooding. A site meeting occurred between Spriet and certain landowners with the Appellants not being present at the meeting.

11. Pursuant to the Dietrich Report, in 2014, the existing Twelve Concession Drain situated on the Anderson property between Concession 13 and Line 16 was relocated and enclosed in a 750 mm diameter concrete tile and the existing open ditch drain was backfilled. In addition, 221 meters of the open Drain was enclosed with a 525 mm (21 inch) concrete tile from Concession 13 to the outlet of an existing 400 mm tile. The 525mm tile became part of the ‘A’ Drain and extended approximately one-half the length of the Appellants’ farm. Mr Widner was confident that the existing upstream 400 mm tile was a Municipal Drain but was not able to provide evidence as to when it became part of the ‘A’ Drain.

12. The 2014 improvement met the drainage criteria then in place. The 2014 design criteria was a coefficient of 38 mm in 24 hours. The coefficient used by the Mr Widner for the proposed design of the ‘A’ Drain was 50mm per 24 hours. The additional costs generated by the greater design criteria are not grantable.

13. Mr Widner stated that the land within the watershed is very productive and is systematically tiled with owners wishing to undertake additional tile drainage projects. The project would facilitate improved drainage of the lands in the watershed with better control of subsurface water.

14. The 2014 installed 525 mm tile on the ‘A’ Drain was at a 0.4% grade which does not allow the depth of outlet required to address the future needs of the upstream lands, due in part to the relative elevations and flatness of the lands in the watershed. Additional depth is required to provide a satisfactory outlet for upstream subsurface drainage.

15. The Appellants paid for the total benefit assessment portion of the drainage costs of the 2014 drainage works on the Main Drain (open and closed sections) as well as the ‘A’ Drain. The benefit assessment for the ‘A’ Drain as per the Dietrich report was $18,000.

16. Mr. Widner stated that the schedule of assessment in the Report was determined based on the modified Todgham method. The drain was broken up into logical sections and the assessments for contributing landowners, based on land usage, size and overall run off potential, were calculated within that drainage system and the cost worked out per section and tallied for the whole drain, subject to the removal of special assessments.

17. The Report is proposing a 675 mm (27 inch) concrete tile for the lower portion (850 meters) of the “A” Drain. Further it provides that the existing 525 mm (21 inch) concrete tile, installed under the Detrich report in 2014, would be abandoned as a Municipal Drain but remain in place as a private tile. It also provides that the existing 400mm and 350 mm diameter enclosed ‘A’ Drain upstream of the 525 mm tile installed in 2014 would be destroyed as part of the work to install a new and deeper tile.

18. Mr Widner stated that benefit assessments were warranted as a result of the better control of surface and subsurface water and with the use of a higher design criteria.

19. It became apparent through cross examination as well as through questions from the panel that the calculation of Benefit was significantly impacted by the length of drain on the individual properties and there was a direct relation between the linear measurement of drain on each property and the distribution of benefit assessment amongst the properties.

20. During cross examination, Mr. Widner advised that the existing 525 mm closed pipe (installed under 2014 report) has much less capacity than the open ditch which existed before the 2014 work and the upstream owners felt that the level of flooding has increased since the drain was closed in.

21. Mr. Widner advised that the 2014 Drain design was done in accordance with design standards of the day but it did not address looking forward to future improvements, particularly due to its depth, to adequately serve upstream lands.

22. Mr Widner advised that the Report calls for the new 675 mm closed tile drain to run parallel to the 525 mm closed drain which will no longer have Municipal Drain status for approximately 220 meters. He also advised that the present 525 mm tile drain would have a shorter life cycle due the 12 years it has already existed.

23. Mr Widner advised that alternatives such as twinning the existing 525 mm tile drain to achieve the capacity and depth required were considered.

24. Mr. Widner’s opinion was that installing 675 mm drain on the Appellants property gives the Appellants better control of subsurface drainage.

Evidence of Ken Smith, P. Eng. – D.M. Wills Associates Limited, Witness for the Appellants

25. Mr. Smith was qualified as an expert witness and testified on behalf of the Appellants.

26. Mr. Smith entered into evidence an engineering brief dated January 2026 focused on the assessment of benefit of the watershed to be serviced by the Drain. It did not call into question the capacities and needs of the project or the proposed wok as set out in the Report.

27. Mr. Smith’s report relied on provincial LIDAR data with respect to elevation and topography as he was not able to be on site in any meaningful way.

28. Mr. Smith confirmed the evidence of Mr. Widner regarding the extremely flat terrain in certain parts of the watershed. He noted the difference between the watershed area and the benefit area on drainage projects and, based on the mapping information available to him, he outlined the area that would rely primarily on the Drain for subsurface outlet and would, as a result, be improved and receive a benefit from the Drain.

29. Mr. Smith felt that there would be an incremental use of the Drain by upstream users and hence a benefit as they would not have to create their own outlet for their own lands.

30. Mr. Smith suggested that the distribution of benefit assessment should consider the area of lands receiving benefit from the work rather than just the length of the Drain on each of the impacted properties in the watershed. Mr Smith further suggested that considering the area of each property that receives benefit from the work is one of the acceptable methods used for distributing benefit assessment on Municipal Drains.

31. Mr. Smith also raised the fact that the Appellants have the benefit of the 2014 drain and do not require the new Drain in the same manner as would otherwise be appropriate or to the same extent as the upstream owners.

32. Mr. Smith felt, considering this and other factors, the results would shift much of the benefit to the upstream landowners and that a weighting of benefit assessment based on area would be most appropriate.

33. Mr. Smith noted that the area owned by the Appellants are less than the upstream landowners, yet the Report fixes similar benefits and that the drainage area previously paid for by the Appellants in the previous improvement is also being assessed in the Report.

34. On examination by the Tribunal, Mr. Smith testified that the methodologies set out in his report are consistent with engineering standards in the circumstances presently being considered and, in particular, Guide for Engineers working under the Drainage Act in Ontario, Publication 852 and the modified Todgham method.

35. Mr. Smith testified that it was essential to use a consistent process among landowners within a particular project but that it is not essential to use the same methodology from project to project and that there are multiple factors that can be considered. He stated that some are more impactful than others, depending on the circumstances.

ANALYSIS AND FINDINGS

36. The evidence shows that the drain installed in 2014 addressed the needs of the Appellants in full for their land. Although the 2014 installation could have been constructed to allow for future needs, particularly those of upstream lands, there was no legal requirement to do so.

37. The Appellants paid for the entire 2014 “A” Drain work Benefit Assessment which was appropriate at the time.

38. There are no appeals of the design of the Drain as set out in the Report before the Tribunal and the Tribunal commends the clarity of the Report.

39. It was apparent from Mr Widner’s evidence that he was very familiar with the watershed area and had made efforts to discuss the project with the property owners.

40. The total length of the proposed 675 mm Drain on the Appellants’ property is 420 meters. 221 meters of the proposed Drain will run parallel to an existing 225 mm tile which was installed pursuant to the 2014 Report and will have its status as a Municipal Drain removed. 199 meters will replace and existing 400 mm tile which will be demolished as part of the work.

41. The proposed drain on the Appellants lands will be at a flatter grade to provide for a deeper outlet for subsurface drainage for upstream lands.

42. The 221 meters of the existing 525 mm tile drain on the Appellants’ property is 12 years old, far from the end of its useful life, however its condition is unknown, such that there is some benefit to the installation of new drain to replace its function.

43. The new drain may provide better control of the subsurface water on the Appellants’ lands.

44. The Tribunal also finds merit in the alternate methodology set out by Mr. Smith. The Tribunal finds that utilizing his submissions of supplementary methods for assessing Benefit would have a significant effect on the distribution of costs within the schedule of assessment. It is acceptable in the same manner as utilizing the more linear rationale used by Mr. Widner.

45. We find that Mr. Smith’s methodology is reasonable under the modified Todgham method of calculating benefit assessment, however without a detailed analysis of the watershed, we cannot utilize his calculations in making a final assessment amongst the parties to the watershed.

46. The Tribunal does not feel that the benefit assessment set out in the Report fully reflects the benefit derived by the upstream owners in the present situation and unfairly burdens the Appellants with costs in light of both charges previously assessed against them and benefits to be derived by them from the Drain proposed.

47. Although the other property owners in the watershed were made aware of this hearing, they chose not to participate and the outcome determined by the Tribunal will be binding on their properties as well.

48. No evidence was submitted in regard to the Assessment Schedules for the ‘O’ Drain or for Maintenance.

ORDER

49. After careful consideration of the evidence filed and submissions made, the Tribunal orders:

a. The drainage works recommended in the report of Spriet Associates, Engineers dated July 22, 2025, be and the same is hereby approved.

b. The assessments in the Assessment for Construction in Schedule “C” of such report in respect of the “A” Drain be varied by decreasing the grantable and non-grantable benefit assessed against the Appellants’ property by 50% and allocating such amounts among the other assessed lands affected by the “A” Drain pro-rata to the benefit previously determined in the said Schedule.

c. The revised Benefit Assessment for Schedule “C” Assessment for Construction of the Twelfth Concession “A” Drain for each of the owners, both grantable and non-grantable, shall be modified as follows:

Original

New

Bearss

$ 38,060.00

$ 45,942.25

$ 2,860.00

$ 3,491.03

Schneider

$ 33,710.00

$ 40,691.36

$ 2,540.00

$ 3,100.43

Anderson

$ 32,900.00

$ 16,450.00

$ 2,480.00

$ 1,240.00

Applerock

$ 2,950.00

$ 3,560.95

$ 220.00

$ 268.54

Line 16

$ 4,710.00

$ 5,685.44

d. The remaining Schedules of Assessment of the Report shall remain the same.

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

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

Dated at Simcoe, Ontario this 24th day of April, 2026.

Released: April 24, 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.