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:

Birtha and Nathaniel Wall (RE)

[Decision]

Township of South-West Oxford (RE)

[Decision]

STATUTE:

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

HEARING:

November 17-21, 2025 via Zoom

DATE OF DECISION:

April 10, 2026

003Vincent25

NEUTRAL CITATION:

2026 ONAFRAAT 08

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

AND IN THE MATTER OF Notices of Appeal to the Tribunal by Birtha and Nathaniel Wall of Brownsville, Ontario, under Section 48(1) and Section 54(1) of the Drainage Act (“Act”) with respect to the Vincent Municipal Drain in the Township of South-West Oxford.

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

BETWEEN:

Birtha and Nathaniel Wall Appellant

-and-

Township of South-West Oxford Respondent

Represented by Paul Courey

Represented by Sheila C. Handler

Heard: November 17-21, 2025 via Zoom

Before: Robert Fuller, Vice-Chair, Will Bartlett, Vice-Chair, and Dave Fawcett, Member

Parties Present:

Birtha Wall – Appellant

Paul Courey – Counsel for the Appellants

Sheila Handler – Counsel for the Respondent

Dan Leduc – Drainage Superintendent, Township of South-West Oxford

Julie Middleton – Clerk

Mike Devos, P. Eng., Engineer that Wrote the Report

DECISION OF THE TRIBUNAL

PRELIMINARY MATTERS

1Prior to the beginning of this hearing, the Tribunal issued an order making all landowners assessed or compensated in the 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 appeal.

BACKGROUND

2A drainage report of the Vincent Drain was initiated by the Council for the Respondent Township of South-West Oxford (the “Township”) under Section 78 of the Drainage Act (the “Act”). Spriet Associates London Limited (“Spriet”) was retained by the Township to perform an examination with regards to improving the Vincent Municipal Drain (the “Vincent Drain”) resulting in an Engineer’s Report prepared on December 30, 2024 (the “Engineer’s Report”). Section 78 of the Act states that where it is expedient to change or modify the drainage works, Council may on the report of an Engineer appointed by it undertake and complete the drainage works as set forth in such report.

3The Vincent Drain was last reconstructed pursuant to an Engineer’s Report dated June 21, 2004 and was last modified pursuant to a letter of the Ministry of Agriculture, Food and Rural Affairs dated November 1, 2023.

4The Vincent Drain is an open channel extending from an outlet in the Catfish Creek Drain at the line between Lots 20 and 21 in the north part of Concession 12 upstream through Lot 21 across Culloden Line, then through Lot 22, Concession 11 to Brownsville Road. It then continues north into Lot 22, Concession 10 for approximately 110 meters through urban areas to its head at the agricultural lands.

5Both the previous owners of the Appellant’s property on Part of Lot 22, Concession 10 (the “Property”) and the Township constructed portions of a concrete block retaining wall on the east ditch bank on the Lands north of Brownsville Road. The culvert under Brownsville Road was replaced by Oxford County in 1991, and again in 2015. Several Municipal Drains, upstream and tributary to the Vincent Drain have been constructed or improved which contribute to the flows in the Vincent Drain, including the North Brownsville Drain, County Road No. 10 Drain and Van Gurp Drain. In 1991, Oxford County constructed a by-pass system to help alleviate flooding along Culloden Line north/upstream of Glover Street West and the Vincent Drain commencing at the north end of the residential area and extending downstream to Brownsville Road, then westerly along the south side of Brownsville Road to an outlet in the Vincent Drain.

6The Engineer’s Report was initiated to address erosion and stability issues within the drain channel and relating to the concrete block wall on the Appellant’s property. The concrete block wall was initially found to be in poor condition and leaning into the channel. Concerned that the wall might collapse into the drain channel, the Township undertook repairs to the concrete block wall and reconstructed it in November/December 2023. The Engineer’s report recommended that the approximately 111 metres of channel on the Appellant’s property be widened and improved with rip rap erosion protection. It further recommended that the concrete block wall be dismantled and the blocks used to construct a short wall, four weirs in the channel bottom, and protection at a pedestrian bridge. The proposed works also included the replacement of the access culvert to the Appellant’s property, and the construction of a new drop structure on the upstream side of the access culvert. The total estimated cost of the proposed works was $439,700.

7The Engineer’s Report was adopted by the Township on February 4, 2025.

8The sitting of the Court of Revision of the Township (the “Court”) took place on March 4, 2025, at which time appeals to the Court by Warner Taylor and Birtha Wall were heard. The Court confirmed the Engineer’s Report and approved a reduction in the assessment of the property of Mr. Taylor by $104.00 and added same to the assessment for Glover St. W. The Court also confirmed a reduction in the assessment of Ms. Wall by $4,000.00 and added same to the assessment for Hincks St. N.

9Ms. Birtha Wall and Mr. Nathaniel Wall (the “Appellants”) submitted an appeal to the Tribunal under section 48(1) of the Act stating that the proposed work was not cost beneficial as it fails to utilize an existing retaining wall which would reduce costs. They also submitted that the proposed work should be modified to specify lining the channel and using the retaining wall rather than creating a channel with slope banks which would require taking further land. They also submitted that the allowances for damages and land taken were too low.

10After an appeal to the Court of Revision, the Appellants submitted an appeal to the Tribunal in accordance with Section 54(1) of the Act on the basis that their property was assessed too high and the other land or roads are assessed too low. They also submitted that there should be liability for injury assessed against upstream lands, flows from which are the cause of the problem on their land.

ISSUES

11The issues to be determined by the Tribunal are as follows:

(a) Should the drainage works as set out in the Engineer’s Report be modified or altered?

(b) Should the assessment of Mr. and Mrs. Wall be reduced?

EVIDENCE

12Mr. Devos gave an overview of the project and summarized the work that is proposed to be done on the existing Drain as set forth in the Background above.

Appellant – s. 48 Appeal

The evidence of Shawn Dowling

13Mr. Dowling is a previous owner of the Property who grew up on the Property since the year after his parents bought the Property in 1968 until he sold the Property to the Appellants on January 15, 2023. Mr. Dowling received a water resources engineering degree from the University of Guelph but is not a professional engineer and was not qualified as an expert before the Tribunal.

14Mr. Dowling provided a history of the Property. He advised that he remembered a flood in 1974, after which numerous attempts were made by his father to get the Respondent Township to remedy the situation. The Township installed a CSP culvert in 1979 and Mr. Dowling’s father arranged for reconstruction of a wall in 1980 with concrete footings and a railway tie retaining wall.

15Mr. Dowling spoke of erosion to various sections of the Drain during the period of his family’s ownership of the Property.

16Mr. Dowling retained an engineering firm to provide options for changes to the Drain but after discussions and recommendations, decided to proceed through the Township so that there would be no liability and the upstream owners would pay for part of the reconstruction. Mr. Devos was appointed by the Township and explored various options but no report was then issued.

17Mr. Dowling testified as to his concerns about the rate of flow through the Drain and its consequences.

18Mr. Dowling testified that emergency work was done to the concrete block wall of the drain as the lean in the retaining wall was getting worse.

19On cross examination, Mr. Dowling advised that he had not seen ponding in the area in several decades and that work on the Culloden Road in the 1990s improved the flow through the Drain. He advised that the original 44 block retaining wall was constructed in 1991 or 1992 and extended in 2007 by the Dowlings. Mr. Dowling on behalf of the Estate contemplated replacing the retaining wall in furtherance of the sale of the Property.

20Mr. Dowling made full disclosure of the state of the Property to the Appellants prior to the sale, including that the Section 78 drainage process was underway.

21Mr. Dowling also provided that his journal which he referenced for some of the stated facts was not done contemporaneously by him with events recounted by him.

The evidence of Henry Benemeer

22Mr. Benemeer was qualified as an expert witness limited only to acting in his role as Acting Commissioner and Drainage Superintendent during the time of his appointment, including with respect to the Brownsville Stormwater Management/Vincent Drain & Tributary Drains report but was otherwise limited to factual evidence within his knowledge.

23Mr. Benemeer worked for the Township in 2000, in 2008 and from 2021 to September, 2023 as Drainage Superintendent/Commissioner. Mr. Benemeer wrote a report brought before the Tribunal which showed the history of the drain until 2015.

24Mr. Benemeer advised that the Township had Spriet do an investigation in 2015 which did not result in a report.

25Mr. Benemeer advised that an engineering firm investigated slope stability on the Property near the fourplex. Mr. Benemeer confirmed his discussions with Mr. Dowling and his recommendation that the drainage works should be done under the Act to avoid liability.

26He further advised Mr. Dowling that constructing a Box Culvert in the drain would be contrary to the bylaw.

27Mr. Benemeer confirmed that the retaining wall was in existence at the time of the 2004 report, however the 2004 report did not acknowledge it, nor provide for its repair and maintenance.

28Mr. Benemeer advised that certain municipal drains in the watershed area were removed and anything over the drain capacity went through the Drain on the Property. He advised there is 30 metres of fall between Keswick Rd and the unopened road allowance north of the property. He also stated that stormwater frequently ponds on the unopened road allowance and on the agricultural land immediately north of the Appellant’s property. He advised the then current report made no provision for a retaining wall.

29Mr. Benemeer expressed various concerns regarding a 900mm culvert from 1979 County Road 10 drain orientation and bank erosion and other characteristics of the Drain.

30Mr. Benemeer expressed concerns about infrequent storms and flooding of certain downstream buildings on the Property. Mr. Benemeer’s report did not provide any engineering analysis as he felt he would have lost the understanding of Council of the Township.

31In a report dated June 21, 2004 for the improvement of the Vincent Drain, a terms of reference 2004 site meeting was conducted in which concerns of Mr. Dowling were raised but there was no discussion regarding the retaining wall recorded.

32Mr. Benemeer testified that during 2023 various options for the retaining wall and the other drainage works were discussed between the Township and Mr. Dowling including costs but no finalized report was made.

33Mr. Benemeer described the listing of the existing concrete wall and the application by the Township to the Minister of Agriculture, Food and Rural Affairs (the “Minister”) for an emergency order. Mr. Benemeer advised that as there was no provision in the bylaw for the retaining wall, it could not be repaired absent such emergency Order.

34Mr. Benemeer provided the Tribunal with a November 1, 2023 letter from the Minister (the “Ministry Letter”) addressed to Ms. Greb, CAO of the Township. It was sent in answer to the Township “… requesting an emergency designation under Section 124 of the Act to shore up/rebuild a retaining wall at risk of falling and blocking a section of the Vincent Drain at 14 Hincks Street North, in Brownsville, Township of South-West Oxford in the County of Oxford.” It acknowledged “The Minister is aware of a draft report under Section 78 of the Drainage which authorized work to reconstruct the existing retaining wall, but without sufficient time to complete the normal Drainage Act process in time. The Minister designates the shoring up and rebuilding of the retaining wall at risk of falling and blocking a section of the Vincent Drain to be an emergency within the meaning of Section 124 of the Act.”

35The designation granted by the Minister in the Ministry Letter was conditional on the work/replacement being made under the supervision of the engineer from Spriet, as appointed by Township council under Section 78 of the Act (the “Supervision Condition”).

The evidence of Birtha Wall

36The Appellants purchased the Property in 2023 but did not start living at the Property until July, 2024. At the time of purchase, the retaining wall was leaning severely and this was evident to the Appellants. The Appellants were aware of the drainage issues at the time of the purchase of the Property which was purchased before the emergency work was done and were aware of potential solutions including further significant costs for repair under these different scenarios.

37Ms. Wall expressed her concerns regarding the leaning retaining wall in October, 2023 to the Township. Ms. Wall testified she had been asking for temporary repair measures since January, 2023. She understood that she could not undertake the repairs herself.

38In the fall of 2023, the Township commenced emergency measures and work without prior notice to the Appellants which included the construction of foundation and wall and fencing and cutting down of trees. Ms. Wall met with the Township retained contractor in November, 2023 on site to discuss the bracing. The contractor and Mr. Leduc of the Township communicated to Ms. Wall that the measures were a semi-permanent solution to hold over for a few years, which was not paid for by the Appellants.

39The Appellants were advised that the emergency replacement wall was a temporary measure and would be removed. This work remains in place and the Appellants are satisfied with the permanence of the present structure and wish to keep the present retaining wall. The Appellants are opposed to the wall’s removal.

40The Appellants see no signs of erosion due to the runoff of their land and feel that erosion is from the upper watershed and the extensive flows therefrom. They are concerned that the flattened drain slopes will take more of their usable land and will not be able to be used by the occupiers of the Property.

41Ms. Wall states that the retaining wall was not built with engineering oversight in accordance with the Ministry Letter.

Evidence of Mike Devos

42Spriet was retained by the Township in 2015 to look at possible solutions to the Drain, provide an estimate of work to be done and the possible cost to the Township. There was no request for a new report under the Act at that time by the Township.

43Spriet was again retained in 2021 by the Township to do an Engineering report which was delivered as a report to the Township dated December 30, 2024. Several landowners were met at a site meeting. The failing retaining wall and erosion downstream and the old crossing were discussed. There was a retaining wall with railway ties and a concrete base located on the Property which had been constructedby the landowner which was leaning. Mr. Devos advised that those features were private.

44Mr. Devos reviewed the present drainage works and other structures and vegetation and proposed drainage works in detail. He did not see erosion as the reason for the retaining wall’s failure.

45Mr. Devos did a field investigation but did not make an independent investigation of other catch basins or surface inlets as it was his view they would not impact the amount of water entering the Vincent Drain.

46Mr. Devos investigated different options and did some preliminary alternative drawings for costing with estimates which he delivered to the Township in 2023. These options were discussed with the Appellants who advised that costs were an overriding concern of the Appellants but no final decisions were made at that time.

47Mr. Devos was informed of temporary emergency work to be done to shore up and rehabilitate the retaining wall and was given sketches from the Township done by the contractor. He was advised that this was not to be a final work. Mr. Devos was asked to review the proposed emergency work. Mr. Devos declined to do so as he did not have the experience necessary. The Township advised Mr. Devos it was going to proceed immediately due to emergency and safety concerns in November, 2023.

48Mr. Devos could not sign off on structural soundness of the temporary retaining wall replacement. He felt it might last but could not venture an opinion due to insufficient investigation or oversight. In his view it would need to be examined properly by an engineer. As a result, Mr. Devos could not include the retaining wall as part of his report.

49Mr. Devos had some discussions about storm water management but even with storm water management, it was the opinion of Mr. Devos that most of the works in the report would still need to be done to deal with erosion, the retaining wall and a laneway crossing. Mr. Devos was of the opinion that a stormwater management system would have a significant cost and the Walls were very sensitive to costs.

50Mr. Devos advised that the previous Elston report of the Drain was silent about the retaining wall and Mr. Devos was not aware of any discussion in previous reports relating to the retaining wall.

51Mr. Devos advised that the way to incorporate the retaining wall as part of the proposed drainage works would be under Section 78 of the Act.

52Mr. Devos reviewed the Ministry Letter but was not aware what was sent by the Township to the Minister prior to the Minister Letter. Mr. Devos did not make the submission to the Minister which resulted in the Ministry Letter.

53Mr. Devos testified that the Minister approved the application and designated the repairs as emergency repairs. The Minister’s Letter stated “This designation is granted on the condition that the work/replacement is made under the supervision of the engineer from Spriet, appointed by council under Section 78 of the Drainage Act.”. Spriet did not supervise or certify the emergency work as it was not asked to do so.

54Mr. Devos testified that the retaining wall work was done by the contractor.

55Mr. Devos, on behalf of Spriet, advised that the shoring of the walls was not in their area of expertise. If Spriet had been asked to supervise, Mr. Devos advised that would have required further drafting and drawings so that supervision could be done in accordance with the Minister’s Letter. The Township did not ask Spriet as the wall was to be temporary.

56Mr. Devos stated that he could analyze and possibly certify the existing structure using his own investigation. In Mr. Devos’ opinion, he expected the replacement retaining wall would eventually have the same issues as previous walls, but he did not have enough actual knowledge to give a definitive answer.

57Mr. Devos testified he could have certified the wall as part of the Drain if it were certified by a structural engineer and incorporated it into the design presented to the Township.

58A full investigation of stormwater management and the costs thereof were not examined in full detail by Spriet and the feasibility was not investigated in detail due to the anticipated likely costs.

Evidence of Daniel Leduc

59Mr. Leduc is the Drainage Superintendent and Deputy Chief Building Official for the Township.

60Mr. Leduc provided background to the request by Mary Ellen Greb, the Township Administrator, to the Minister for the emergency Ministry Letter. Mary Ellen Greb is presently on leave and retiring at the end of 2025.

61Mr. Leduc testified that the actual date of the request by the Township to the Minister was October 24, 2023, and the date set out in the Ministry Letter is incorrect.

62Mr. Leduc testified that the retaining wall at the time of the emergency work was leaning severely and was a public safety issue and could have caused an obstruction to the drain.

63Mr. Leduc advised that there was no set design at the time of the emergency request. There were up to 5 options being looked at by the parties at that time which reflected different costing, which factor was very important to the landowner.

64Mr. Leduc advised that the Township wanted the work to last temporarily until the new report was complete and decided to replace the retaining wall after consideration.

65Mr. Leduc stated that the shoring works that were originally proposed could not be completed as intended and instead the contractor dismantled the wall and reconstructed it.

66Mr. Leduc confirmed that the emergency work was not overseen by an engineer. He advised that the Township did not retain Spriet to provide supervision of the emergency work.

67Under cross-examination, Mr. Leduc indicated that the Township did not advise the Minister that the shoring plans had been changed to a complete reconstruction of the wall, nor did the Township advise the Minister when the works were completed.

Mr. Mike Devos, P.Eng. – Section 54 Appeal

68Mr. Devos provided a breakdown of the property assessment for the proposed drainage works which utilized the modified Todgham method and typical percentages for the area, which was simplified in light of all other properties being upstream of the drain. Mr. Devos provided a detailed explanation of the proposed drainage works, including the assessment breakdown.

69Mr. Devos’ report analyzed independent sections of the drain including farm costs which represented a theoretical cost of what would normally be done in a rural setting. The report has a different section for laneways and culverts assessed as a special benefit. The Wall costs were separated and the residential section was also separated due to the urban setting of the drain and a separate section for erosion control which requires separate protection and would be independent of being urban or rural. Mr. Devos described the costs and the breakdown in the assessment schedule. Mr. Devos advised he combined injuring liability and outlet liability and did not assess injuring liability separately as it is rarely done and was not significant in this drain and therefore not separated.

70Mr. Devos spoke of the benefit to the Appellants in improvement to the crossing and erosion control. He stated the proposed drain will avoid damage and harm caused by water from upstream sources.

71The possibility of a storm water detention facility was considered by Mr. Devos in the production of the report but was considered too expensive, although he agreed that it would have an impact on erosion in the Drain.

72Mr. Devos stated that if the retaining wall had been an engineered wall with an engineer’s certification, it could have been incorporated into the design proposed which would amend the cost of construction and the schedule of benefits.

Appellants – Section 54 Appeal

The evidence of Henry Benemeer

73Mr. Benemeer advised that in his view there was an increase in the land under cultivation and that farms in the area have become smaller from 2001 to 2023.

The evidence of Bertha Wall

74Ms. Wall advised that the benefit of the work proceeding as set out in Mr. Devos’ report would be a reduction of flooding.

ANALYSIS AND FINDINGS

75Subsection 48(1) of the Act states:

48(1) 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,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed, may appeal to the Tribunal, and in every case a written notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.

76The Tribunal accepts that there is a significant fall as part of the watershed which flows through the Vincent Drain and that Drainage works are necessary to address the present situation found within the Vincent Drain.

77The Tribunal accepts the evidence of the Engineer with respect to the present situation and condition of the Drain and that there needs to be reconstruction and improvement within the Vincent Drain.

78For reasons hereinafter set forth, it is not necessary for the Tribunal to evaluate the specifics of the benefits and costs of the drainage works as set forth in the report of the Engineer.

79It is clear from the evidence presented that emergency repairs were required to a retaining wall in the drain, regardless of the fact that the wall was never part of the Drain as defined in the 2004 by law.

80The repairs to the retaining wall were properly requested and authorized by the Minister of Agriculture, Food and Rural Affairs pursuant to Section 124 of the Act by the Minister’s letter of November 1, 2023.

81It was a condition of the Minister’s letter that “This designation is granted on the condition that the work/replacement is made under the supervision of the engineer from Spriet Associates, appointed by council under Section 78 of the Drainage Act. “

82The evidence is clear that the work/replacement was not made under the supervision of Mr. Devos or any other qualified engineer as required.

83There is no determinative evidence before the Tribunal as to whether the replacement retaining wall is properly engineered nor whether it can remain as part of an incorporated drainage works under Section 78 of the Act. This retaining wall or any replacement thereof is a critical element in the drain. Without resolution of this aspect of the drain, the engineering report is incomplete and any further analysis of the design, benefits, costs, compensation or allowances is not appropriate.

84A revised engineering report is required to address the adequacy/suitability of the retaining wall and the consequences to the drainage works of its retention, modification or removal and whether it should be incorporated into the drainage works.

85As a new engineering report will be required, which may or may not come before a further panel of the Tribunal, it is not appropriate for this panel of the Tribunal to analyze the specifics of the present report before it and comment. The Appellants have raised concerns with respect to various aspects of the engineer’s report which will presumably be addressed in the new report to be prepared as per the Order of this Tribunal.

86The Tribunal notes that the evidence shows stormwater management was given only limited consideration and would expect a more fulsome analysis in any future report together with any considerations that might practically reduce the footprint of the proposed drain.

87Subsection 52(1) of the Act states:

52 (1) An owner of land assessed for the drainage works may appeal to the court of revision on any of the following grounds:

1. Any land or road has been assessed an amount that is too high or too low.

2. Any land or road that should have been assessed has not been assessed.

3. Due consideration has not been given to the use being made of the land.

88Subsection 54(1) states:

54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).

89In light of the findings of this Tribunal that a new engineers report is required, the Tribunal will not rule on the decision of the Court of Revision.

90The Tribunal does take notice of the extensive arguments of the parties on the issue of injuring liability under Section 23(2) of the Act and finds it appropriate to provide obiter dicta in this regard.

91The Appellant asserts that Injuring Liability should be assessed against the upper lands for the injury caused to the low-lying lands due to drainage water artificially caused to flow from the upper lands. The Engineer’s evidence was that he had considered Injuring Liability and had determined that such liability was minor in nature and therefore only Outlet Liability should be assessed.

92In common practice, engineers rarely make a distinction between Injuring Liability and Outlet Liability. Injuring liability and Outlet Liability are often combined in a single column in the Schedule of Assessment and labelled “Injuring and Outlet Liability”, or simply as “Outlet Liability”. The main reason behind this practice is that it is usually difficult and highly subjective to make a logical and defensible distinction between them.

93Injuring liability and Outlet Liability are calculated on the same basis, namely based on the volume and rate of flow of water that is artificially caused to flow from one property onto another. However, these two liabilities are not the same. Injuring Liability is an assessment for the cost of the portion of the drainage works that is required to rectify an existing injury (usually flooding or erosion), or alternatively, if the injury cannot or will not be rectified under the report, to provide compensation to a landowner. Outlet Liability is an assessment for the cost of the portion of the drainage works that is required to improve the drainage outlet for the upper lands and safely convey drainage waters from the upper lands to a sufficient outlet. In a sense, Injuring Liability is associated with works to rectify an existing injury, while Outlet Liability is associated with works to prevent future injury.

94In preparing the assessment schedule, for each item in the cost estimate, the engineer must decide on the portion of the cost that is to be allotted to “Benefit” or “Special Benefit”, the portion required to rectify an existing injury (Injuring Liability), and the portion of the cost that is required to improve the outlet for the upper lands and safely convey drainage flows (Outlet Liability). In most cases, the requirements for Injuring Liability and Outlet Liability are both being served by the item in the cost estimate. The challenge for the drainage engineer is to rationalize how these assessments are to be determined.

95It is the view of the Tribunal that it is within the engineer’s judgement to determine whether a liability is labelled “injuring”, “outlet” or “injuring and outlet”.

ORDER

96The Tribunal orders that:

1. The appeal under Section 48(1) of the Act is hereby granted.

2. The Engineer’s Report of Spriet dated December 30, 2024 is hereby set aside.

3. The appeal under Section 54(1) of the Act is hereby set aside as a result of the above mentioned Order 2.

4. The Engineer is to produce a new report of the Vincent Drain including an engineering analysis of the retaining wall and the consideration of storm water management, partial enclosure or other suitable method to reduce the footprint of the Drain.

5. The costs of the preparation of the new report shall be paid wholly by the Municipality out of general funds and shall not form part of the cost of the drainage works.

6. The non-administrative costs of the Township incurred in respect to 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 2024 Engineer’s Report as well as the fees and expenses for attending and participating in the hearing.

7. There shall be no other order as to costs and the parties are responsible for their own costs.