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:

James and Colleen Gibson (RE)

[Decision]

Town of Minto(RE)

[Decision]

STATUTE:

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

HEARING:

January 26, 27 and 28, 2026 by Zoom

DATE OF DECISION:

March 30, 2026

010Minto025

NEUTRAL CITATION:

2026 ONAFRAAT 06

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

AND IN THE MATTER OF Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by James and Colleen Gibson of Listowel, Ontario under Sections 48(1) and 54(1) of the Drainage Act with respect to the Minto Drain 119 - 2025 in the Town of Minto.

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

BETWEEN:

James and Colleen Gibson

Appellants

– and –

Town of Minto

Respondent

Self-Represented

Represented by R. Scriven

Held: January 26, 27 and 28, 2026 via Zoom

Before: Marc Huneault, Vice Chair, Will Bartlett, Vice-Chair, and Dave Fawcett, Member.

Appearances:

James Gibson, Appellant

Brad Gibson

Dave Fencott

John Kuntze, P.Eng.

Robert Scriven, Counsel to Municipality

Annilene Robb, CMO, Director of Legislative Services/Clerk

Sid Vander Veen, P. Eng.

Greg Nancekivell – Senior Project Manager

DECISION OF THE TRIBUNAL

1. The Agricultural Food and Rural Affairs Tribunal (the “Tribunal”) heard this matter virtually on January 26, 27 and 28, 2026.

2. The appeals by James and Colleen Gibson (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

3. The Subject Property is Concession 7, Lot 42, at 5108 7^th^ Line, Town of Minto, Wellington County (the “Subject Property”).

4. The Appellants described the Subject Property as composed of 27 acres of workable farm in the southeast corner of the property, 35 acres of woodland, and the remainder being wetland mixed forest with a gravel ridge rising sharply from the wetland to a height rising of about 150 feet. The wetland on the Subject Property is part of the Howick Minto Wetland Complex which extends north of the Subject Property into Lot 42, Con. 8, east into Lots 41 and 40, Con. 7, and west into Lots 33 and 32, Concessions 7 and 8, Township of Howick. The general flowpath through the wetland on the Subject Property is from east to west, then southerly.

5. The general drainage pattern in the area is from northeast to southwest, towards the Maitland River. There are two existing municipal drains located south of the wetland in Con. 6. The Leonard Drain was constructed in 1983 by the Township of Howick and it extends from the southwest corner of the Subject Property southerly and westerly to an outlet into the Maitland River. Minto Drain No. 102 extends from the southeast corner of Lot 41, Con. 7 southerly. In addition, the Milton Leonard Award Drain (1910) extends from the northwest corner of the Subject Property, across the unopened road allowance between the Town of Minto and the Township of Howick, and westerly to an outlet into the Leonard Drain.

6. A petition dated January 10, 2022, was submitted by John and Miriam Martin who are the owners of part of Lot 41, Concession 8, in the Town of Minto, Wellington County. The Respondent accepted the petition and appointed R.J. Burnside & Associates Ltd. (R.J. Burnside) as represented by Edison Peel, P. Eng. to prepare a report under section 8 of the Drainage Act. A drainage report was prepared dated February 3, 2025. (the “February Engineer’s Report”). The February Engineer’s Report reviewed the site conditions and made recommendations on the construction of a new drain to be known as Minto Drain 119 to service the area requiring drainage.

7. At some point, Edison Peel, P. Eng. left the employ of R.J. Burnside and the project was continued under the direction of Greg Nancekivell, CET and S.M. Vander Veen, P. Eng.

8. The February Engineer’s Report stated that the outlet of the proposed Minto Drain 119 was to be the edge of the wetland complex in Lot 41, Con. 7, owned by William and Catherine Wilken. The February Engineer’s Report stated that this was not considered to be a sufficient outlet as defined under the Drainage Act.

9. The February Engineer’s Report, in respect to the Subject Property, provided an allowance of $5,690 as compensation for Insufficient Outlet (Section 32).

10. The Appellants were concerned that additional drainage waters outletting into the wetland would result in more extensive flooding and for longer periods, which would negatively impact the hardwood trees in the wetland. They were also concerned that increased flows would effectively sever their property and could washout the existing crossings that they had constructed to access the north portion of the Subject Property.

11. The Appellants contend that the compensation of $5,690 was inadequate. The Appellants submit that compensation should be $18,700 based upon an earlier iteration of the proposed drain. The Appellants agreed that this earlier proposal was in respect to a different design that was eventually discarded in favour of a less expensive design. The Appellants nonetheless argued that $18,700 is fair compensation for an Insufficient Outlet pursuant to Section 32.

12. The February Engineer’s Report was considered at a meeting of Council on March 4, 2025 and it was referred back to the Engineer to investigate the practicality of extending the proposed drainage works downstream through the wetland to an outlet into the Leonard Drain in the southwest corner of the Subject Property.

13. A revised report was submitted, dated May 5, 2025 (the “Engineer’s Report”). The Engineer’s Report provided the details of the estimated cost to construct a shallow channel approximately 1200 metres in length through the wetland on the Wilken property and the Subject Property. The total estimated cost to extend the drainage works to a sufficient outlet into the Leonard Drain was $ 275,000. The Engineer did not recommend this extension and confirmed his previous recommendation that the proposed drainage works be terminated at the edge of the wetland and that allowances for insufficient outlet be provided to the Wilken and Gibson properties.

14. The Engineer’s Report maintained the allowance of $5,690 for the Subject Property, as was previously provided under the February Engineer’s Report. The Engineer’s Report assessed the additional cost of the investigation and revision of the Report ($6,000) as a Special Benefit (Sect. 24) against the Wilken ($490) and Gibson properties ($5,510).

15. The Appellants reaffirmed their contention that the compensation of $5,690 was inadequate. The Appellants also take the position that they should not be assessed a Special Benefit under Section 24.

16. The Appellants concede that the work is required. Both the Appellants and the Respondent agree that this case is about compensation and not design.

17. The Respondent has determined that the proposed outlet of the drainage works is not a sufficient outlet under the Drainage Act. The Respondent conceded that the proposed drainage works will result in injury to the low-lying lands.

ISSUES

18. Does the compensation for insufficient outlet as allowed in the Engineer’s Report reflect the likely increase in injury to the Subject Property? As per above, the Appellants concede that the work is required. (section 48(1) appeal).

19. Do the assessments to the Subject Property appear to be fair and reasonable considering the issues raised by the Appellants? (section 54 appeal).

EVIDENCE OF THE PARTIES

Mr. Greg Nancekivell – Certified Engineering Technologist

20. Mr. Nancekivell was tendered as an expert witness to provide opinion evidence in respect to both appeals. He introduced and summarized the contents of the Engineer’s Report.

21. R.J. Burnside was appointed as the Drainage Engineer by the Town of Minto pursuant to a section 4 Drainage Act petition by John and Miriam Martin who are the registered owners of Lot 41, Con. 8 (Martin property).

22. The first proposal was to install a drainage works designed to serve the entire Martin property which would outlet via a wetland on Lot 41, Con. 7 into Minto Drain 102. A site investigation determined that the flowpath in the wetland was more westerly towards the Leonard Drain rather than southerly towards Minto Drain 102, and that the northerly portion of the Martin property naturally belongs in another distinct watershed. As a result, this proposal was amended.

23. The initial proposal recognized that the wetland was not a sufficient outlet as defined under the Drainage Act, and an allowance for insufficient outlet was proposed. The original allowance to the Subject Property of $18,700 for an insufficient outlet was based upon a more expensive drainage works which would have diverted drainage waters from another watershed and conducted them to the wetland. This initial plan was opposed by the landowners.

24. The proposal was revised to exclude the northerly portion of the Martin property which naturally drains westerly into Lot 42, Con. 8. The February Engineer’s Report proposed the construction of a Main Drain consisting of an open drain commencing at a pond in the southwest corner of the Martin property, and flowing southerly approximately 390 metres to the edge of the wetland in the Wilken property. The proposed works included a West Branch consisting of an open drain extending from the lotline between Lots 41 and 42, Con.8, approximately 100 metres to the Main Drain. An East Branch consisting of an open drain to serve the east portion of the Martin property was also included.

25. The February Engineer’s Report was referred back for further investigation of the outlet through the wetland. The revised Engineer’s Report dated May 5, 2025 was entered as Exhibit No. 3.

Mr. James Gibson

26. Mr. Gibson is one of the Appellants. He described his property as being a mix of workable farmland and woodland which he has owned for 39 years. He has cut and skidded ash trees in winter and developed groomed trails on the property. He has two elevated crossings on his property, namely, a full bridge and a culvert installed by hand. He stated that his preference throughout has been for the construction of a shallow swale through his property to control drainage waters, but if a swale is not practical or cost effective, then he should be adequately compensated for the damages due to insufficient outlet.

27. He expressed concern that the drainage works will impact his use and enjoyment of his property. More specifically, he expects that elevated and sustained flooding will negatively impact the hardwood trees and effectively sever his property. Further, he is concerned that his existing access crossings will be “washed out” by water from subsurface tiles migrating south to the Subject Property. He expects that he will lose access to and have limited use of a significant portion of his property.

28. Mr. Gibson was of the opinion that the one-time allowance of $5,690 for insufficient outlet as provided in the Engineer’s Report was inadequate compensation for the annual injury that was likely to occur to his property.

Mr. Dave Fencott

29. Mr. Fencott is a civil engineer with experience in storm water management, drainage and waterflows. He was tendered by the Appellants as an expert on storm water management.

30. The Respondent opposed Mr. Fencott being qualified as an expert and a voir dire was conducted. Mr. Fencott admitted that he has never testified on a Drainage Act matter. The Respondent’s position was that industrial stormwater management has no application to this matter nor to design.

31. The Appellant took the position that Mr. Fencott’s evidence would be limited to storm water management and the impact of the water through open ditches. The Tribunal agreed to qualify Mr. Fencott as an expert.

32. Mr. Fencott noted that the Engineer’s Report referred to modelling of the 2-, 5-, 10-and 25-year storm based on input parameters from aerial photography and the Wellington County Soils Report, and on intensity-duration-frequency curves developed by the Ministry of Transportation. However, the Report did not contain any resulting data or specific conclusions from the modelling.

33. Mr. Fencott stated that surface water infiltration into a subsurface tile system would flow unimpeded to the outlet which would result in an increase in velocity. Mr. Fencott found that if water from the pipe increased in velocity, then the water in the ditch would increase in velocity and cause erosion and increased flooding in the lower lands – namely the Subject Property. Under cross-examination, Mr. Fencott admitted that there were no means to calculate attenuation and exit velocity. He stated that his concern was there was no numerical evidence in the Engineer’s Report to lead him to evaluate the potential impacts of the project.

Mr. John Kuntze – Drainage Engineer

34. Mr. Kuntze has 49 years of experience as a Drainage Engineer. He has significant experience with wetlands. The Respondent consented to Mr. Kuntze being qualified as an expert.

35. Mr. Kuntze did not provide a formal report. He stated clearly that he was not in attendance to re-design the drain, and that he had no challenge to the concept of insufficient outlet, nor to the provision of an allowance to compensate for insufficient outlet. His concern was the calculation of the insufficient outlet allowance. He noted that the calculation of the allowances in the Engineer’s Report was based on a land value of $16,250/ha. He did not challenge that evaluation. However, he also noted that the value of the land had been adjusted by a factor of 33% to $5,363/ha. for the purposes of determining the allowances for insufficient outlet.

36. Mr. Kuntze testified that he understood that the allowances for insufficient outlet were based on an “insufficient outlet corridor”, 15 meters wide and 700 metres long. In his view, such a corridor would cut the Subject Property into two pieces and limit access to and the use of a significant portion of the lands. He also did not find it reasonable to reduce the value of the lands to 33% as determined by the Engineer’s Report. He stated that an insufficient outlet corridor is essentially land taken and compensation should be provided at the full value of the land.

37. Mr. Kuntze recommended a value of $17,225. He stated that he calculated this value using the same area calculated by the Engineer’s Report.

38. Under cross-examination, Mr. Kuntze conceded that the “insufficient outlet corridor” approach to determining the allowance for insufficient outlet was reasonable and he did not offer any alternative method.

39. Under cross-examination, Mr. Kuntze was presented with Articles 8.6 and 8.7 from “A Guide for Engineers working under the Drainage Act”, Publication 852, Ministry of Agriculture, Food and Rural Affairs (Guide for Engineers) in respect to Section 32 – Insufficient Outlet. It was suggested to him that an adjustment factor of 33% was reasonable. Mr. Kuntze disagreed and stated that it was a matter of opinion.

Mr. Greg Nancekivell – Certified Engineering Technologist

40. Mr. Nancekivell first addressed the issue of insufficient outlet. Mr. Nancekivell stated that generally the water would flow in a southerly direction from Lot 41, Con. 8. At first, his belief was that there was no application of insufficient outlet. His view was based on common law principles. However, he noted that the municipality is artificially causing water to flow and artificially bringing said water to another property. He also noted that the water was not being taken to an outlet into either an existing municipal drain or to a natural watercourse. He then applied section 32 of the Drainage Act and referred to page 59 of the Guide for Engineers for guidance to determine the allowances for insufficient outlet.

41. The first iteration of the project was to build the drainage system on Lot 41, Con. 8 alone and not bring it to the properties to the west. The northerly portion of the Martin property naturally belongs in another distinct watershed, and normally, you do not take water from one watershed into another one. However, if taking water from outside the natural watershed into a drainage works and directing such water onto downstream lands, then a premium should be applied to any allowances made to the downstream lands. The initial proposal recognized that the wetland was not a sufficient outlet as defined under the Drainage Act, and an allowance for insufficient outlet was appropriate. This was the basis for the allowance for insufficient outlet in the amount of $18,700 for the Subject Property under the first iteration of the proposed drainage works.

42. Mr. Nancekivell said that based on pushback from the abutting landowners, it was decided not to bring water from the north part of the Martin property into the south watershed. The amended plan which was presented in the February Engineer’s Report, and is the subject matter of this appeal, was based on the drainage works ending at the edge of the wetland and there would be no formal watercourse through the wetland. The design did not require a drain to be constructed in the wetland, but he did need a means of determining an allowance for insufficient outlet. He calculated same by assuming an insufficient outlet corridor 15 metres wide for a length of 700 metres, consisting of a top width of 5 metres for a channel corridor, together with a 10-metre working corridor. He said that the municipality would be disrupting a 15m ROW if it constructed a watercourse in the wetland. He was clear that they were not constructing it, but if such a watercourse needed to be constructed to provide a sufficient outlet, that is how he came up with 15m x 700m length.

43. On the issue of the value of the property, he applied a 33% adjustment factor in the price per hectare. He did so because in his opinion, they were not doing any physical damage nor restricting the use of the property. Accordingly, in his opinion it was not worth the full land value. It was not being destroyed and cleared and remained available for its current use for deer and recreation as per Mr. Gibson’s evidence. Accordingly, by applying a reduction to 33%, the Engineer’s Report calculated an allowance of $5,690 to the Gibson property for Insufficient Outlet.

44. Mr. Nancekivell also provided evidence in respect to the Section 54 appeal of the Special Benefit which is outlined in the Engineer’s Report at Appendix C page 2, Section 24 - Special Benefit.

45. His evidence is that the Special benefit was based upon a request by Wilken and Gibson that did not affect the functionality of the drain itself. He stated that Mr. Gibson provided comments at the Council Meeting about other options in respect to extending a swale or shallow ditch through Mr. Gibson’s property. More particularly, Mr. Gibson asked the Municipality to investigate adding crossings to the design as well as the feasibility of doing those works.

46. The Engineer’s Report applied a Special Benefit assessment based upon additional work and investigation by R.J. Burnside at an additional cost of $6,000 which was applied to the Gibson and Wilken properties only. It also involved meetings with the Maitland Valley Conservation Authority who said they wanted to minimize the impact on the significant wetland.

47. Mr. Nancekivell stated that Mr. Gibson was involved early in the process and did a walkthrough of the wetland area in December 2022. He stated that the main area in question was the location of the watershed break in the wetland itself and that it was difficult to determine this break in the watershed.

Mr. Sid Vander Veen – Drainage Engineer

48. Mr. Vander Veen is an engineer with R.J. Burnside and was accepted as an expert on drainage and drainage engineering.

49. Mr. Vander Veen was not the original engineer involved in this project; there was an unexpected departure of the original engineer. He reviewed the report and provided comments on the design and content of the report. He stated that he supports the report.

50. He said that there was no new water and no new land use in his view. He agreed that any damages would come from the concentration of flow in the drains.

51. In response to Mr. Fencott, he said that the agricultural land will be tile drained but that does not mean that peak flows would increase. In his experience, tile drainage can potentially reduce peak flows, and he was not convinced that it will increase peak flows.

52. Mr. Vander Veen respectfully disagreed with Mr. Kuntze on the issue of whether the Appellants should be given full value for loss of land. He questioned that approach since the current land use is wetland. It was wet before and will remain so after so he did not see how it would impact the use of the lands.

FINDINGS AND ANALYSIS

The Section 48(1) appeal

53. The Appellants have appealed under Section 48 that the compensation provided to their property for Insufficient Outlet under the Engineer’s Report is not adequate. The Appellants have asked this Tribunal to increase their compensation for insufficient outlet from $5,690 to $18,700.

54. The Tribunal finds that the appeal is justified and that the compensation provided under the report does not reflect the likely increase in injury to the Gibson property and is therefore inadequate. We do not agree that the compensation should be increased to $18,700 but rather to $9,653.

55. The Drainage Engineer has determined that the proposed outlet of the drainage works is not a sufficient outlet under the Drainage Act, and that the Wilken and Gibson properties should be compensated with an allowance for insufficient outlet as set out in both the February and May 2025 reports on the Minto Drain No. 119.

56. The Drainage Engineer has testified that he completed modelling for the proposed drainage works but did not include the wetland area. The Engineer has conceded that the proposed drainage works will result in injury to the wetland, but has not identified or quantified the extent of the injuries likely to be caused to the Gibson property. Instead, the Drainage Engineer has determined an allowance for the Gibson property for insufficient outlet based on the land that would theoretically be required to construct a downstream extension to the drainage works westerly, across the Gibson property to the unopened road allowance.

57. The engineer has determined this allowance based on the principles of right-of-way under Section 29 of the Drainage Act. He has determined that the allowance should be calculated using an “insufficient outlet corridor”, 700 metres long and 15metres in width (total area 1.06 ha.). The engineer has testified that the width of the corridor is made up of 5m for the channel, and 10m for a working corridor. The value of the land (woodlot/wetland) is stated in the report as $ 16,250/ha, and he has applied a factor of 33% to reduce the value to $ 5,363/ha. We note that the Appellant’s expert, Mr. Kuntze, agreed with the Drainage Engineer that the “insufficient outlet corridor” was a reasonable method to calculate the allowance for insufficient outlet and did not offer an alternative method, nor an alternative value for the land.

58. The Tribunal understands that it would be very difficult in this case to determine the extent of the injuries likely to occur to the Gibson property due to the construction of the proposed drainage works, and that any conclusions would be subjective. This being said, the Tribunal would have preferred to see an attempt made to quantify the likely injuries.

59. The Tribunal has two main areas of concern with the Drainage Engineer’s calculation for the allowance. Firstly, the “insufficient outlet corridor” as described in the Engineer’s Report is 15 metres wide and extends westerly 700 metres across the Gibson property to the unopened road allowance between Huron County and Wellington County, presumably to the head of the Milton Leonard Award Drain (1910). There is no indication in the report of why this termination point was chosen, and it is unlikely that a sufficient outlet would be available at this location.

60. In the revised May 2025 Engineer’s Report, the Drainage Engineer has provided a cost estimate of the works required to extend the drainage works to a sufficient outlet into the Leonard Drain (1983). In Section 4.6 Additional Investigation (Revised) of the report, the engineer states that such extension would consist of a swale/ditch approximately 1.2 km in length flowing westerly and southerly across the Gibson property to the head of the Leonard Drain (1983). Logically, one would expect that the “insufficient outlet corridor” for the calculation of the allowance would be changed to reflect the revised route and be increased from 700 metres to 1200 metres in length, however the revised report did not provide an increase in the allowance to the Gibson property.

61. The second issue is with the value of the land. The engineer has determined that woodland/wetland should be valued at $16,250 per hectare. The appellant has not challenged that value, and we note that Mr. Kuntze did not offer an alternative value. Accordingly, it would be appropriate to accept a land value of $16,250/ha. The Drainage Engineer in his calculations, has applied a factor of 33% to reduce the land value to $ 5,363/ha. This reduced value has been applied to the entire width of the 15m “insufficient outlet corridor”.

62. In his evidence, Mr. Kuntze offered the opinion that the “insufficient outlet corridor” was essentially “land taken” and it should be compensated at the full land value applied to the entire width of the “insufficient outlet corridor”.

63. The Tribunal recognizes that the damage/injury to the Appellant’s property due to the drainage works will likely be increased flooding and loss of access, the extent of which will be largely dependent on rainfall and snowmelt. The injury will be intermittent in nature and the loss of access will be temporary, and therefore the Tribunal finds that the factored land value is appropriate for the entire width of the 15m “insufficient outlet corridor”. Consequently, the allowance for insufficient outlet under Section 32 for the Subject Property would be as follows:

Insufficient Outlet Corridor 15m x 1200m = 1.8 ha @ $ 5363/ha. = $ 9653

Total compensation = $ 9653

Section 54 appeal:

64. The Appellants have also appealed under Section 54 that the special benefit assessment against their property is unjust and should have been assessed to the upper lands.

65. It is the Tribunal’s view that the Appellants are correct and should be relieved of the assessment of a Special Benefit.

66. Section 15 of the Drainage Act requires that, subject to Section 32, every drainage works constructed under the Act shall be continued to a sufficient outlet. It is the responsibility of the upper lands to ensure that the drainage water that has been artificially caused to flow is taken to a sufficient outlet. Section 32 of the Act provides that where a sufficient outlet is impossible or impractical due to excessive costs, an allowance may be made to compensate the low-lying lands for the increase in injury due to the drainage works.

67. The engineer has testified that the special assessments against the Gibson and Wilken properties ($ 5510 and $ 490) were determined from the cost of revising the report ($ 6000) to investigate the landowners’ request for more information relating to the details and estimated cost of continuing the drainage works to a sufficient outlet.

68. The initial report, dated February 2025 addressed the subject of insufficient outlet in Paragraph 4.3 Drainage System Outlet as follows:

“The outlet of Minto Drain 119 is denoted on the accompanying plan and profile drawings at Sta. 0+000. This point was selected to utilize the natural drop off to convey the water into the wetland and to avoid any unnecessary disturbance. The location at Sta. 0+000 is not considered a sufficient outlet. An allowance for insufficient outlet was provided for lands impacted. Details of the allowance can be found in Appendix A.”

Appendix A of the February Engineer’s Report provides the calculation for the allowance, but provides no information on the extent or estimated costs of the works that would be required to achieve a sufficient outlet.

69. Simply stating that the location at Station 0+000 is not considered a sufficient outlet, does not provide a satisfactory level of information for the landowners and municipal council to understand the reasoning behind the decision to use Section 32. The landowners and council who were considering the February Engineer’s Report were fully justified in requesting more detailed information on the extent and estimated cost of continuing the drainage works through the Gibson property to a sufficient outlet.

70. The evidence of both the Appellants and the Drainage Engineer was that the Council, when considering the February Engineer’s Report had received incorrect advice, namely that the Council had only two options. The first option was to adopt the report, or the second option being to refer it back to the engineer.

71. Council had a third option; to adjourn the meeting and reconvene once the engineer had gathered the information that had been requested. In this case, the Council did refer the report back to the engineer. The Drainage Engineer revised the Engineer’s Report which incurred additional costs.

72. The revised Engineer’s Report (May 2025) provided more information in Paragraph 4.6 Additional Investigation (Revised). This section describes the extent and estimated costs of works that would be required to extend the drain to a sufficient outlet across the Gibson property to the head of the Leonard Drain. This is the information that landowners and municipal council needed to understand when considering the engineer’s report, and it should have been included in the original February Engineer’s Report.

73. Section 15 of the Drainage Act states that the onus is on the upper lands to take their water to a sufficient outlet. Section 32 provides for an exception with conditions, i.e. the estimated cost of continuing to a sufficient outlet exceeding the amount of injury and providing compensation for such injury. It is therefore the responsibility of the upper lands to justify an insufficient outlet by completing a cost estimate of the works required to extend the drain to a sufficient outlet, and a determination of the amount of injury likely to impact the low-lying lands. This information was missing from the February Engineer’s Report and has now been included in the revised Engineer’s Report at an additional cost of $ 6000.

74. This $ 6000 should be assessed to the upper lands, not the low-lying lands which will certainly be injured, and not benefitted by the construction of this drain.

75. The Tribunal suggests that the $ 6,000 additional costs as well as the allowances for insufficient outlet should have been assessed as Injuring Liability under Section 23(2). However, in his evidence Mr. Vander Veen objected to the idea of Injuring Liability and preferred to assess only Outlet Liability.

ORDER

76. For the reasons stated above, the Tribunal orders as follows:

a. The appeal under Section 48(1) of the Act is granted. The insufficient outlet allowance under Section 32 is increased from $5,690 to $9,653. The difference of $3,963 shall be assessed to the upstream lands pro-rata with their total assessments contained in Appendix C1 – Assessments for Construction in the Engineer’s Report. The total estimated cost of the drainage works will increase from $119,770 to $123,733.

b. The appeal under Section 54 of the Act is granted. The Appellants are relieved of the $5,510 assessment for Special Benefit. The $5,510 shall be assessed to the upstream lands pro-rata with their total assessments contained in Appendix C1 – Assessments for Construction in the Engineer’s Report.

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

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