Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
Christopher Smith (RE)
[Decision]
Township of Leeds and the Thousand Islands (RE)
[Decision]
STATUTE:
Drainage Act, R.S.O. 1990, c. D.17
HEARING:
March 31, 2026 via Zoom
DATE OF DECISION:
May 15, 2026
015PWMD25
NEUTRAL CITATION:
2026 ONAFRAAT 12
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF an Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Christopher Smith of Lansdowne, Ontario under Section 48 of the Drainage Act, with respect to the Poldervaart-Webster Municipal Drain in the Township of Leeds and the Thousand Islands.
AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
Christopher Smith
Appellant
–AND–
Township of Leeds and the Thousand Islands
Respondent
Self-Represented
Represented by Eric Florjancic
Heard: March 31, 2026 via Zoom
Before: Glenn C. Walker, Chair, Will Bartlett, Vice-Chair, and David Fawcett, Member
Parties Present:
Christopher Smith, Appellant
Michelle Hannah, Clerk
Eric Florjancic, Counsel for the Municipality
Andy Robinson, P. Eng.
Lorne Franklin, CET, Robinson Consulting
Dakota Dumont, Robinson Consulting Project Manager
DECISION
An electronic hearing was held by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) on March 31, 2026 to consider the appeal of Christopher Smith pursuant to Subsection 48(1) of the Drainage Act (the “Act”).
The Clerk did not provide an Affidavit of Service but did confirm that Notice of the Hearing had been served on all landowners assessed in the report.
Background
The Poldervaart-Webster Municipal Drain (the “Drain”) is an open drainage works located in Lots 13, 14, 15 and 16, Concessions 2, 3 and 4, in the Geographic Township of Lansdowne in the Township of Leeds and the Thousand Islands. The Drain is approximately 4,261 metres in length, serving a watershed area of approximately 689 hectares. The Drain outlets into the Smith-Bolger Municipal Drain.
The Drain was originally constructed in 1974 under the provision of a report made pursuant to Section 3 of the Act (Petition Drain).
The Drain has been maintained by the Township on several occasions, the latest being in 2017.
In March 2018, Robinson Consultants Inc. was appointed by the Township to prepare a report under Section 78 of the Act to provide for improvements and maintenance of the drainage works.
The “on-site” meeting was held on May 15, 2018, but the report of the engineer (the “Report”) was not presented to the Municipality until May 2024, six years later.
The Schedule of Assessment was modified by the Court of Revision. The decision of the Court of Revision has not been appealed. The revised Report was filed on October 31, 2025.
The revised Report proposes various erosion/sediment control improvements to the drainage works, recommendations for culvert replacements, and provides an updated Schedule of Assessment.
The Report divides the Drain into two maintenance sections; a lower section (Section 1) and an upper section (Section 2). According to the Detailed Cost Estimate, in Section 1 the total costs of the proposed works including engineering fees, allowances and net GST are estimated to be $146,550.35. In Section 2, the total costs of the proposed works including engineering fees, allowances and net GST are estimated to be $182,247.83.
The Schedule of Assessment for Initial Assessment contained in the Report is based on an initial cost of $86,486.00 (engineering fees plus net GST). The Report provides that the costs of the construction of the proposed works and of future maintenance shall be assessed to the lands and roads in the drainage area in proportion to the Schedule of Assessment for the Initial Assessment.
The Evidence
Christopher Smith (the “Appellant”) gave evidence on his own behalf. No other witnesses nor any expert witnesses were called by the Appellant.
The Appellant is the owner of approximately 149 hectares located in parts of Lots 14, 15 and 16 Concession 3. The majority of the length of the Drain is located within his properties.
The Appellant’s appeal is under Section 48(1) of the Act and specifically claims that the benefits to be derived from the drainage works are not commensurate with the estimated costs. The Appellant has not suggested that the drainage works should be modified, nor has he challenged the compensation provided as allowances in the report.
The Appellant asks that the appeal be granted and the Report set aside.
As part of his evidence, the Appellant walked the panel through approximately 107 photographs which he had taken in December 2025. Those photographs show the ditch bank slopes, ditch corners and banks, the Smith-Bolger Drain and non-construction areas. He also produced approximately 20 photographs showing the drain during spring run-off 2026. In his evidence he used these photographs in an attempt to establish that the Drain required no maintenance at the present time.
The Appellant also provided the Tribunal with several spreadsheets in which he had attempted to show that the cost of past maintenance, which he claimed was lower than the cost of the proposed drainage works.
The thrust of the Appellant’s evidence was that the Drain did not need any maintenance.
Lorne Franklin testified on behalf of the Respondent. He is a Civil Engineering Technologist with Robinson Consultants Inc. and co-authored the Report with the engineer, Andy Robinson P. Eng. He was qualified to give expert opinion evidence with respect to drainage engineering.
Mr. Franklin proceeded to review with the Tribunal highlights contained in the Report which had been made Exhibit 1 to the appeal proceeding.
In conjunction with the preliminary review of the Report consultations were conducted with the Cataraqui Region Conservation Authority (“CRCA”), the Ontario Ministry of Environment Conservation and Parks (“MECP”) and the federal Department of Fisheries and Oceans (“DFO”) to refine parameters of the design that would allow the works to proceed under the requirements of the Conservation Authorities Act, the Ontario Endangered Species Act and the Fisheries Act.
He testified that the provisions of the Report for channel design include measures to preserve and protect fish habitat and it is anticipated that many measures associated with the construction or clean-out will improve water quality.
It is not anticipated that the current proposed maintenance/construction is immediately required and may be completed in phases and/or scheduled as required. As such the schedules of assessment provided in the report indicate an initial assessment for the cost of the new report only.
Mr. Franklin further testified that grants under the Agricultural Drainage Infrastructure Program (ADIP) would not be available for the initial cost of the engineer’s fees as they are only available when construction is done.
Mr. Franklin testified that numerous properties in the drainage area have been severed or subdivided since the 1974 report. He indicated that the number of assessed landowners has increased from approximately 28 in 1974 to 48.
During questioning by the Tribunal, Mr. Franklin was unable to advise the Tribunal what prompted the municipality to request the preparation of this Report under Section 78 of the Act. Further, he was not able to identify any drainage work which required immediate work and suggested that the work outlined in the Report might take place over the next 10 years.
Mr. Franklin agreed with the Tribunal that all that the Report is presently doing is updating the assessment schedule and providing specifications and details for future maintenance.
It was the opinion of this witness that conducting any maintenance under the 1974 report would not be possible as permits from CRCA, MECP and DFO could not be obtained from those bodies without an updated report.
Andy Robinson P. Eng. then gave evidence on behalf of the Respondent. He is the engineer who co-authored the report with Lorne Franklin. He was qualified to give expert opinion evidence with respect to drainage engineering.
He provided evidence concerning the Report supplemental to the testimony of Mr. Franklin.
Mr. Robinson pointed out that the Drain is part of the Smith-Bolger Drain. The municipality is looking at the larger watershed picture and not just the subject Drain. The Smith-Bolger Drain is tributary to Wilkes Creek which outlets into the lake. This is an area of concern with respect to siltation.
The environmental concerns, particularly with respect to sedimentation, arising from erosion control and other reasons are more significant on this Drain than they are on a lot of other drains. There is a benefit to the watershed in this regard. The control of erosion and sedimentation will prevent further problems downstream.
The Issue
- The Appellant appeals under Subsection 48(1)(a) of the Act which provides that 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 the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof may appeal to the Tribunal.
Analysis
Benefits to be Derived
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.”
The benefits to any and all lands within the drainage area must be considered when studying the benefits to be derived versus the estimated costs.
In this case, the entire drainage area will benefit from an updated, fair and equitable schedule of assessment that has been tested by the Court of Revision.
The entire drainage area will also benefit from timely maintenance of the Drain to ensure a sufficient and legal outlet for all properties within the watershed.
Properties along the course of the Drain will benefit from the erosion/sediment control measures which are intended to reduce the frequency for maintenance of the Drain, and minimize land lost through erosion.
Properties along the course of the Drain will also benefit from maintenance to maintain adequate outlet for private tile drainage systems.
Natural watercourses which are located downstream of the Drain, and which may contain fisheries, may benefit from a reduced sediment load.
Both Mr. Franklin and Mr. Robinson testified that the preparation of the report involved extensive consultations over several years with the Department of Fisheries and Oceans (DFO), the Ministry of the Environment, Conservation and Parks (MECP), and the Cataraqui Region Conservation Authority (CRCA) in order to obtain permits for the proposed construction. The resulting report proposes sediment and erosion control items to comply with the requirements of the reviewing agencies and to enhance protection of the environment.
Mr. Franklin testified that numerous properties in the drainage area have been severed or subdivided since the 1974 report and indicated that the number of assessed landowners has increased from approximately 28 in 1974 to 48.
Unfortunately, under cross-examination, Mr. Franklin was unable to recall the terms of reference for the original request for proposal that initiated the appointment and report. It was also unfortunate that the Township Drainage Superintendent did not attend the hearing to testify as to the necessity for a new report in 2018 when recent maintenance works had been completed in 2016-2017.
Estimated Costs of the Works
- According to the Detailed Cost Estimate, the estimated cost of the proposed works in Section 1 and Section 2 is $ 328,798.18. This total is made up of the following:
Item
Section 1
Section 2
Total
Construction Costs
$ 71,280.50
$ 107,738.30
$ 179,018.80
Allowances
$ 2,218.63
$ 2,218.63
Net GST
$ 5,551.22
$ 7,009.53
$ 12,560.75
Engineering fees
$ 67,500.00
$ 67,500.00
$ 135,000.00
Total
$ 146,550.35
$ 182,247.83
$ 328,798.18
- However, the Detailed Cost Estimate appears to be in error in that it does not include all the allowances provided in Schedules D and E, Appendix D of the report. The corrected total is $ 359,878.21, and using the amounts shown in the Detailed Cost Estimate, this total is determined as follows:
Item
Section 1
Section 2
Total
Construction Costs
$ 71,280.50
$ 107,738.30
$ 179,018.80
Allowances
$ 12,561.94
$ 20,736.72
$ 33,298.66
Net GST
$ 5,551.22
$ 7,009.53
$ 12,560.75
Engineering fees
$ 67,500.00
$ 67,500.00
$ 135,000.00
Total
$ 156,893.66
$ 202,984.55
$ 359,878.21
- Again, from the Detailed Cost Estimate, the construction costs can be further broken down as follows:
Item
Section 1
Section 2
Total
Erosion/sediment control
$ 18,680.00
$ 38,700.00
$ 57,380.00
Maintenance excavation
$ 15,100.50
$ 24,825.00
$ 39,925.50
Culverts
$ 34,213.30
$ 34,213.30
Utilities/Agencies
$ 27,500.00
$ 27,500.00
Contingencies
$ 10,000.00
$ 10,000.00
$ 20,000.00
Total
$ 71,280.50
$ 107,738.30
$ 179,018.80
The maintenance excavation includes several locations along the Drain where excavation of bedrock is required.
Considering the length of the drainage works and the extent of the watershed, the Tribunal finds that the estimated costs for erosion/sedimentation control and for maintenance excavation are reasonable. Similarly, the estimated cost of replacing or resetting the culverts is reasonable.
The majority of the Utilities/Agencies cost is a consequence of the presence of the Trans Northern pipeline which crosses the Drain. These costs are assessable to the affected Utility under Section 26, and do not impact on the other properties within the drainage area.
Contingencies are a provisional item in the cost estimate to provide for unforeseen or extraordinary expense which may or may not be realized.
In his testimony, Mr. Franklin explained that the allowances are based on local land values, crop yields, and the current value of crops. This is a standard and acceptable method of determining allowances under Sections 29 and 30 of the Act.
On the whole, the allowances and the estimated construction costs of the proposed works are reasonable considering the scope of the works and the length of the Drain.
The engineering fees constitute a significant portion of the estimated costs.
Benefits to be Derived vs Estimated Cost of the Works
As noted above, the entire drainage area would benefit from the implementation of the erosion and sedimentation control measures and the proposed culvert improvements. However, the report states that maintenance is not required at this time, and that the proposed improvements will not be constructed upon the passing of the bylaw. It may be that the proposed improvements will not be constructed for another 5 to 10 years, or more.
In effect, the report is currently assessing properties within the drainage area for benefits which may not be realized for 5 years, 10 years or more. The report states that the design, allowances and assessments have been determined based on current conditions and values.
In 5-10 years, land and crop values will undoubtedly be different from current values. Erosion control may not be required in the same locations as specified in the report. Severances and development will probably occur resulting in changes to land use and runoff, and the necessity to update the schedules of assessment.
Although the drainage area would benefit from the proposed improvements, the improvements are not required currently and therefore are being deferred to some undetermined future date. Consequently, the potential benefits are also deferred. If the improvements are deferred for an extended time, the benefits will diminish with time.
The only current benefit is from the updated schedule of assessment, and that would only be a benefit if and when maintenance works are proposed.
Engineering fees constitute a significant portion of the estimated costs. The Tribunal notes that there is no evidence before it to indicate that the engineer exceeded the terms of reference issued by the Township, nor that the Township improperly appointed the engineer. The Tribunal also notes that the Township has not appealed the cost of the engineer’s fees under Section 72 of the Act.
The Tribunal discourages the use of Section 78 of the Act in this manner. If the schedule of assessment contained in a current drainage bylaw is outdated and unworkable, then at the time that maintenance is required, the municipality should appoint an engineer under Section 78 to prepare a report of repair and improvement which would include the required maintenance and improvements and provide an updated schedule of assessment.
If maintenance of the Drain was currently necessary to maintain drainage outlet for the properties within the drainage area, then the works proposed in the report would be justified. The evidence before the Tribunal is that the existing Poldervaart-Webster Drain is stable and functioning adequately following the 2017 maintenance. It is questionable whether assessing properties now for the engineering fees of possible future improvements is of current benefit.
Conclusion and Order
The benefits to be derived are not commensurate with the estimated cost of the works, that is the Initial Assessment for engineering costs, for the reasons given above.
The Tribunal orders as follows:
i. The appeal of Christopher Smith is allowed;
ii. The Tribunal directs that 50% of the engineering fees be paid by the Township of Leeds and the Thousand Islands out of general funds. The remaining 50% to be assessed to the affected lands and roads in accordance with the schedule of initial assessment which shall be amended accordingly;
iii. The Detailed Cost Estimate shall be amended to correct the error identified by the Tribunal in paragraph 45 above; and
iv. The non-administrative costs of the Township incurred with respect of this appeal shall form part of the cost of the drainage works.
Dated at Chatham, Ontario this 15th day of May, 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.