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:

Cassels Cook Farms Inc. (RE)

[Decision]

Township of Perth South (RE) [Decision]

STATUTE:

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

HEARING:

Via Zoom

DATE OF DECISION:

March 31, 2026

013Sgariglia25

NEUTRAL CITATION:

2026 ONAFRAAT 07

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 Cassels Cook Farm Inc. of Ottawa, Ontario, under Section 54 of the Drainage Act with respect to the Sgariglia Drain in the Township of Perth South.

AND IN THE MATTER OF a pre-hearing conference to be held pursuant to Rule 29 of the Tribunal’s Rules of Procedure.

BETWEEN:

Cassels Cook Farms Inc. Appellants – and – Township of Perth South Respondent

Self-Represented Self-Represented

Heard: via Zoom

Before: Brandi Neil, Vice Chair, Will Bartlett, Vice-Chair, and Dave Fawcett, Member

Parties Present:

David Cook, Appellant

Brandon Widner, P. Eng.

Lizet Scott, Clerk

Scott Richardson, Drainage Superintendent

Ken Bettles, Director of Public Works, Observing

ORDER

1. The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a virtual hearing on February 26, 2026 and heard the appeal by Cassels Cook Farm Inc., under Section 54 of the Drainage Act (“Act”) regarding the Sgariglia Drain in the Township of Perth South (“Perth South”).

2. Originally Thames Holdings Ltd had also brought a Section 54 appeal but this was withdrawn on January 23, 2026.

3. There were various observers in attendance. At the outset of the appeal, the Tribunal inquired if there were any assessed landowners wishing to participate and no one came forward.

4. Mr. Cook is the President of Cassels Cook Farm Inc., the property owner of Part of Lot 11 and 12, South Boundary Concession (the “Cook property”) which is currently assessed for both the Open Portion of the drain and the Perth Road 120A Culvert portion of the Drain.

5. The owner of this property appears in the Sgariglia Drain Report and all assessment schedules as R. Sgariglia who was the previous owner and a relative of Mr. Cook.

6. The Cook property was originally assessed $9007 for the open portion of the Drain. Two other property owners appealed their assessment at the Court of Revision. This resulted in a revised assessment for the Cook property in the amount of an additional $38,300.

7. Mr. Cook filed an appeal with the second sitting of the Court of Revision which was denied. He then brought an appeal of that decision to this Tribunal.

Background

8. As a result of requests by some landowners and the Road Authority, an Engineers Report regarding improvements to the Sgariglia Drain was requested by Perth South pursuant to Section 78 of the Act.

9. The Sgariglia Drain is an existing municipal drain currently maintained under by-law by the Township of Perth South. It was last reconstructed under a report in 1987 and consists of approximately 843 meters of open drain and 1440 meters of closed drain. The closed drain portion commences at Elginfield Road (Hwy No. 7) and flows northwesterly across Lot 11 and the east half of Lot 12, South Boundary Concession (SBC) to an outlet into the open drain portion. The open drain flows westerly across the west half of Lot 12 and under Perth Road 120A (James Street South), then continues in a southwesterly direction across Lot 13 to its outlet.

10. The west half of Lot 12, SBC is currently subdivided into multiple parcels which are zoned for industrial/commercial development. Several of these properties are in the process of completing site plans for development. The area is regulated by the Upper Thames River Conservation Authority (UTRCA). The Regulatory floodplain is determined based on the 250-year storm.

11. The Township of Perth South supports the proposed developments and sponsored a floodplain modelling study prepared by Stantec to establish the existing Regulatory flood elevations and to evaluate the need for mitigation measures.

12. Spriet Associates was appointed in 2023 to prepare a report under Section 78 of the Drainage Act to repair and improve the open portion of the Sgariglia Drain, and to replace the culvert under Perth Road 120A.

13. At the onsite meeting on October 10, 2023, landowners abutting the open drain immediately upstream of James Street South, 2653963 Ontario Ltd. and Thames Holdings Ltd, both requested that the open drain be enclosed from the present outlet of the closed portion to Perth Road 120A. These properties were in the process of being developed and the current county road culvert was undersized which elevates flood depths and imposes restrictions on their land.

14. The upstream landowners indicated at the meeting that the tile portion of the drain was working adequately for their needs.

15. After a field investigation it was determined that:

i) the open portion of the Drain has silted in extensively and there is .6 meters of sediment in some areas; and

ii) the culvert under Perth Road 120A is undersized and in poor condition causing elevated flood levels on the east side of the road during large storm events.

16. A report was prepared by Brandon Widner, P. Eng. of Spriet Associates dated December 20, 2024. The report proposed three sections of the Drain: to repair and improve the open drain downstream of James Street South, to replace the existing 1200mm diameter CSP Perth Road 120A (James Street South) culvert with a concrete box culvert, and to enclose approximately 200 meters of the open drain located upstream of James Street South.

Evidence

Mr. Brandon Widner, P. Eng.

17. Mr. Widner’s qualification as an expert in the area of municipal drains was conceded by both parties.

18. During the course of his evidence, it came out that he has authored about 125 reports under his own name, has assisted other engineers on many more and has received appeals on about twenty-five per cent of his reports.

19. As set out in his report and as he confirmed on cross examination, he used the industry accepted Modified Todgham Method to prepare his report.

20. He introduced his report into evidence and explained that the proposed enclosure of the open drain east of Perth Road 120A with a 900mm diameter pipe was designed to a drainage criteria of 50mm per 24 hrs. He further indicated that the culvert replacement under Perth Road 120A would be concrete and was designed to convey the Regulatory flood (250-year storm), and that the repair and improvements to the open drain downstream of Perth Road 120A were designed for a 2-year storm event.

21. Mr. Widner stated that the 50mm per 24 hrs design criteria for the enclosure was standard in the industry, and that the 2-year storm was also standard for the open drain portion. He indicated that the design criteria for the road culvert would commonly be the 50-year storm, however due to the requirements for the development of the industrial/commercial properties located upstream of Perth Road 120A and the involvement of the local conservation authority, the 250-year storm was applied.

22. During his testimony, he indicated that the policy of the County of Perth, being the road authority over Perth Road 120A, was to design to a criterion of a 50-year storm. The County objected to paying for a replacement culvert designed to the 250-year storm. The engineer determined the difference in cost between the proposed culvert and one designed to the 50-year storm to be $ 162,170, and he assessed this cost to the multiple industrial/commercial properties in the west half of Lot 12 along Perth Road 120A (James St. S).

23. He explained the history of this Drain Report as follows:

a) As constructed in the 1980’s, consists of an open ditch and a tile system just north of Highway 7, and south of the Village of St. Marys, it crosses Perth Road 120A that turns in to James Street as it enters in to village of St Marys.

b) A Request for repair and improvement to the Sgariglia Drain came from Township of Perth South, owners of an unopened road allowance on Perth Road 120A (James St.S ).

c) A number of properties on that road are zoned commercial and light industrial and wish to develop, however, these properties are within the Regulatory floodplain due to the restricted capacity of the Perth Road 120A culvert.

d) The Municipality was trying assist these properties develop so sponsored a floodplain study.

e) The local conservation authority had some requirements so a number of these properties needed to be raised 4- 8 feet which is essentially the same height as the road.

24. Mr. Widner testified as to the process that there was a Site Meeting on October 10, 2023 and a subsequent field study. These things revealed:

a) The only one of the properties in the watershed that was developed was BSC Animal Nutrition so that property existed and was already developed and in the watershed.

b) A number of other landowners are anxious to develop.

c) The open portion of the drain had not been maintained in some time; it was extremely silted in and obstructed with brush.

d) The culvert under Perth Road 120A was partially obstructed and in need of replacement.

e) A previous study was done by Stantec, which said the road culvert was restricting flow on the drain.

f) The Stantec Report was entered into evidence. It found that the existing 1200mm diameter CSP culvert under Perth Road 120A was undersized and contributed to potential flooding of the properties on the east side of Perth Road 120A. The proposed developments are on the east side of Perth Road 120A and are considered to be within the Regulatory floodplain. The Stantec Study recommended that the culvert under the road be replaced with a 3000mm x 2700mm concrete box culvert.

g) The Engineer received an additional request to enclose the ditch that runs essentially on the property line between Thames Holdings and Jacob’s Liquidation from the Cook property to Perth Road 120A. The property owners wished to enclose the drain to improve the appearance of their properties.

h) The design was complicated by the presence of several utilities in the vicinity of the proposed culvert replacement, requiring coordination with the utility companies.

i) The report was submitted on December 20, 2024.

25. During his testimony he explained that the Drain was broken into 3 sections – open work, road culvert (Road 120A) and the enclosure and they were assessed as follows:

a) The total estimated cost of the open portion of the Drain is $ 96,000. This amount was assessed as a regular agricultural drain to the properties that benefit from the drain repair, and to the properties in the watershed which utilize the open drain as an outlet.

b) The total estimated cost of the culvert replacement under Perth Road 120A is $454,000. This amount was assessed as follows:

o $ 281,880 to Perth County representing the value of constructing a culvert designed to a 50 yr storm.

o $ 9,950 to utilities under Section 26 of the Drainage Act, and

o $ 162,170 to the commercial/industrial properties located on the east side of Road 120A, representing the cost to supersize the culvert to a 250 yr storm design.

26. The estimated cost of the enclosure is $ 120,000 which was assessed equally to the two properties which had requested it.

27. Mr. Widner provided the following testimony regarding Mr. Cook’s land:

a) The Cook property is an agricultural farm just under 100 acres,

b) He initially believed that the entire property, part of lot 11 and 12 was zoned agricultural but later learned that a portion of the east half of Lot 12 was zoned for future light industrial development. This portion is less than half of the property. The rest of the property is zoned agricultural.

c) There are industrial properties on Perth Road 120A,

d) Currently all of the property is used for agriculture.

e) Mr. Cook’s property does not have road access off 120A. There is a road allowance provided from Perth Road 120A by the Township of Perth South but it’s not improved, it is an essentially a field so the property has a holding provision as there is no road access.

f) Part of the Cook portion of Lot 12 is currently within the floodplain of the 250 year Regulatory storm, however the area impacted will be reduced once the culvert under Road 120A is reconstructed.

g) Mr. Cook’s property was originally assessed entirely as agriculture as it is a worked farm. The land was not included in the assessment for the supersizing of the Road 120A culvert, as he is not ready to develop that property as he still has a holding provision.

28. He provided the following testimony on the two industrial properties adjacent to the Cook property that are located immediately downstream:

a) The two adjacent landowners, Jacob’s liquidation and Thames Holdings (Express Signs), have since developed so in this case, Thames Holdings brought in a large amount of fill and raised their property to be almost level with Road 120A as did Jacobs Liquidation to meet the Upper Thames River Conservation Authority requirements.

b) BSC Animal Nutrition (BSC), the property on the east side of Perth Road 120A was already developed before the other properties and is much lower than the properties recently developed.

c) The raised properties has made the flooding at BSC worse. It has pushed the flood plain more on the Cook property and the lands to the south.

d) These properties are all individually held: there was no large-scale development agreement when they were built and they all have their own storm water management controls. There is not a mutual drainage system. They are separate entities with no master drainage plan for them.

29. He explained that there were two appeals before the Court of Revision by the assessed owners of these two properties. The Court of Revision granted these appeals and it resulted in their assessments decreasing and a new assessment on the Cook property related to the supersizing of the Road Culvert.

30. The Cook property increase was from zero to $38,300. Mr. Cook’s assessments of $9007 for the open portion of the drain did not change.

31. He also explained that there was a revised schedule of assessments dated February 3, 2025 prepared for the court of revision. He said, at the time of submitting the report there was a mistake and the Thirteenth Line should have been assessed to the Township of Zorra, rather than the Township of Perth South. Following the court of revision he revised the schedule of assessment dated March 18, 2025.

32. During cross examination he was asked a series of questions about the Township of Perth South and the Court of Revision and he testified as follows:

a) Perth South has done maybe twenty reports in the last few years.

b) About twenty-five per cent of the time, he has been asked to revise assessments after the Court of Revision in Perth South.

c) He has been to the Tribunal six or seven times but this is the first time with a report for Perth South

d) Perth South council is very educated and knowledgeable with the Drainage Act matters and these properties. The councillors on this COR have a large experience of what went on in this township for the last twenty years.

e) He could not speak to COR’s method and how they were calculated. He only knew the revised assessment; he did not know the particulars.

33. In response to a question by Mr. Cook, asking if he has insights to why Mr. Cook has to pay a lot of money for construction down stream that is benefitting owners on Perth Road 120A, he testified:

a) He assessed Mr. Cook for $9007 as outlet for the open portion but did not include him for the culvert supersizing.

b) He did not treat Mr. Cook’s property as industrial; an agricultural design drain was being built for the Cook property so he was not assessed an increased rate for this culvert sizing.

c) An agricultural drain is being installed downstream of Mr. Cook’s property and he is getting a new tile installed to the property line due to the enclosure that was requested by Thames Holdings and Jacobs Liquidation

d) That enclosure is being constructed to an agricultural design of 50mm for 24 hours.

e) If Mr. Cook ever goes to develop the industrial portion of his property that is zoned as light industrial, he is restricted to an agricultural standard of 50 mm.

f) He is in agreement with Mr. Cook that he pay just the $9007 for the open drain assessment as in the original report.

34. In response to a question from the panel, he explained why he thinks his original $9007 assessment is appropriate:

a) It is zoned light industrial but Mr. Cook cannot easily develop as the property is not development-ready, he will still have floodplain restrictions, no easy road access nor does he have sewer or sanitary service or proper water service.

b) The Road allowance between the Cook property and Roady 120A is owned by Perth South so they would essentially control his development.

c) His outlet is restricted to a 50mm agricultural design. As well he has a 1987 municipal drain crossing his property on an angle which will cause further restrictions on development.

d) The 1987 Sgariglia Drain, that services Highway 7 and the upper watershed is a tile drain that runs at a 45-degree angle across the Cook property from Highway 7 to the industrial properties on the east side of Road 120A.

e) This Drain also requires replacement and there have been a number of big rains this past year and there are complaints from landowners that they are worried water will back up on their property because maintenance has not been completed because of this Report.

f) Now with the additional industrial developments “eating up” the floodplain it pushes more flooding on the Cook property and other undeveloped properties.

David Cook

35. David Cook is owner of Cassels Cook Inc., the 97.45 acre farm land. Through his oral evidence, maps, and satellite photos entered during his testimony, he provided the following testimony about his property:

a) It was previously owned by his Uncle Ronald Sgariglia for over 25 years and he received it upon his uncle’s death. It was farmed by a single farmer during his Uncles’s life and Mr Cook’s two-year ownership.

b) It was his uncle’s wish it remains farmed and he has no plans to develop it.

c) It is 97.45 acres situated right along the North side of Highway 7 (Elginfield Road) and to the east of Perth Road 120A (James Street South) but not directly adjacent to Perth Road 120A. The properties to the immediate west of Mr. Cook’s lands are on Perth Road 120A.

d) There are 26 acres that are part of the westerly portion of the lands (that abut the industrial properties on County Road 120A/James St S) that are zoned light industrial and the remaining 71.45 acres are zoned agricultural.

e) He does not have road access and will never get it from Highway 7.

f) He does have a right of way on a small strip of land owned by Perth South that could give him access to County Road 120A (James Street South), but it is an unopened road allowance and he would have to pay for all the infrastructure, the drainage, culverts, paving, street lights etc.

g) All parts of the property are used for agriculture

36. He testified the original assessment of $9007 for the open drain is appropriate but the additional $38,300 for the Perth Road 120A culvert supersizing that came from the Court of Revision should be removed for the following reasons:

a) All proposed construction work begins at the west end of his property which is at the outlet of the existing 1987 Sgariglia tile drain;

b) The proposed construction is all downstream from his property, that all this work is related to Perth Road 120A;

c) The drainage under his property starts at Highway 7 where it takes ditch water from both side of Highway 7 and run off water from other farms on the south side of Highway 7 and goes to a drain underneath his property (the existing Sgariglia Drain) and then outlets at the west limit of his property.

Findings and Analysis

37. Both Brandon Widner and David Cook gave clear and straight forward evidence.

38. The Tribunal accepts the evidence of all parties. There was nothing contradictory.

39. Mr. Cook gave some background information on the property and made strong points as to why the original assessment should be reinstated.

40. Mr. Widner was very respectful regarding the collective experience and knowledge of the members of the Court of Revision. Notwithstanding that, he clearly explained his rationale for the original assessments related to the Perth Road 120A Culvert and why he believes those are still appropriate.

41. The Tribunal finds the assessments for the Cook property should be deleted for the supersizing of the Perth Road 120A culvert for the following reasons:

i) The property is used as agricultural land; it is not in the process of being developed.

ii) Although it is zoned light industrial, the property is not ready to be developed as it still has flood plain restrictions and road access restrictions.

iii) The property does not have services necessary for development.

iv) The Property has no road access to Road 120A. The right of way is for an unopened road allowance that he would have to pay for all infrastructure to use.

v) The outlet for his property will now be restricted to a 50mm agricultural design.

vi) The municipal tile drain that crosses his property at a 45-degree angle that will cause further restrictions that will hinder development.

vii) Section 65(3) of the Drainage Act provides “ If an owner of land that is not assessed for a drainage works subsequently connects the land with the drainage works for the purpose of drainage, or if the nature or extent of the use of a drainage works by land assessed for the drainage works is subsequently altered the clerk of the local municipality in which the land is situated shall instruct an engineer in writing to inspect the land and assess it for a just proportion of the drainage works taking into account any compensation paid to the owner of the land in respect of the drainage works.”

viii) If, in the future, Mr. Cook or a subsequent owner of the Property wishes to develop the property, the nature or extent of the use of the drainage works will be altered. At the time of the proposed development, the Township of Perth South shall instruct an engineer under the provisions of Section 65(3) of the Drainage Act to inspect the portion of the Cook property that is to be developed, and to assess it for a just proportion of the drainage works.

42. The Tribunal notes that in the February 3, 2025 and the March 18, 2025 assessment schedules for the Main Drain (Perth Road 120A Culvert), Perth Road 120A was not assessed for outlet liability, yet the east half of the road drains to the culvert and contributes to the flooding upstream of the culvert. The Tribunal finds that Perth Road 120A should be assessed outlet liability in Schedule ‘C’ – Assessment for Construction, for the Main Drain (Perth Road 120A).

ORDER

43. The Tribunal orders the following:

i) The appeal by Cassels Cook Farms Inc. is allowed;

ii) The assessment for Cassels Cook Farms Inc. for the Main Drain (Perth Road 120A) culvert be reduced to zero;

iii) The assessments for the Main Drain Perth Road 120A Culvert return to the assessments as set out in Schedule C – Assessment for Construction “in the engineer’s report dated December 20, 2024, with the exception that the outlet assessment against Perth Road 120A be reduced from $36,420 to $ 26,614, and the unopened road allowance owned by the Township of Perth South be assessed $ 9,806 for outlet liability.

iv) The non-administrative costs of the Municipality incurred with respect of this appeal shall form part of the cost of the drainage works, and such costs may include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for attending and participating in the hearing.

Signed at Orangeville, Ontario this 31st day of March, 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