ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Bosanquet (Town) v. Eizenga et al
2000 ONDR 3
2000-01-17
2000-03
STATUTE:
Drainage Act
HEARING:
BETWEEN:
THE CORPORATION OF THE TOWN OF BOSANQUET
APPELLANT
-AND-
ERIE EIZENGA, DAVID EIZENGA, DUNCAN STANTON, BASIL DOLMAGE, FRED BUCHANAN, DONNA BUCHANAN, R. ADAM DOLMAGE, MARK FRALEIGH, JOHN C. LESTER, WILLIAM CAMPBELL, JOYCE CAMPBELL, DON WOODLAND, NAN SUE WOODLAND, HOWARD LESTER, KEITH LEWIS, DOUGLAS JOHNSON, BARBARA DOLMAGE, JOE VANDENBERG, LESTEROSA SWINE-DAN LESTER, DON EVANS, BARB EVANS, RICHARD POPE, BRENDA SEATON, PETE SEATON, E. ANNE EDWARDS, ROBERT BRYANT AND KATHLEEN BURKE AND ALL OTHERS ASSESSED OWNERS ON THE COULTIS DRAIN
RESPONDENTS
D E C I S I O N
This matter came before the Ontario Drainage Referee on the 20th day of December 1999 in the Superior Court of Justice, Sarnia, Ontario. The Appeal was pursuant to a previous Decision of the Ontario Drainage Referee dated the 25th day of January, 1999 wherein permission was specifically granted to Mr.and Mrs. Turner and to the Town of Forest to appeal assessments arising from the Revised Drainage Report. The Drainage Report dated the 2nd day of September, 1999 was circulated on the 9th day of November, 1999 to all assessed owners with a Notice attached thereto advising of their right of appeal within 30 days of the circulation. Both Mr. and Mrs. Turner and the Town of Forest filed Appeals and Notices were sent to assessed owners advising that the date for the hearing of the Appeals had been set, namely the 20th day of December 1999 at the hour of l0:00 a.m.
On the 17th day of December 1999, Ronald G. Robertson, acting for the Town of Forest, served and filed a Notice of Motion requesting the following relief:
"THE MOTION IS FOR a postponement of the hearing scheduled for December 20, 1999, and for an Order requiring the Engineer W. H. Veitch to provide to counsel for The Corporation of the Town of Forest a written narrative outlining his rationale for assessing lands in the expanded watershed within the Town of Forest".
"THE GROUNDS FOR THE MOTION ARE that the hearing scheduled for December 20, 1999 is premature in that owners of lands within the Town of Forest newly assessed under the Report of W. H. Veitch dated September 2, 1999, have not been notified in accordance with Section 41 (2) of the Drainage Act and as per paragraph 6 of the Decision of the Ontario Drainage Referee dated January 25, 1999."
In the affidavit in support of the Motion filed by Jerome Trudell, Consulting Civil Engineer with the firm of Todgham & Case Associates in Chatham, on behalf of the Corporation of the Town of Forest, the Referee was advised that there were dozens of owners within the Town of Forest who had not yet been notified of the Revised Report. These owners had been assessed a block assessment and assessment notices had only gone to the Town of Forest. Mr. Trudell further advised that because he did not have a full scale copy of the drainage watershed plan that he was not in a position to advise the Clerk for the Town of Forest precisely of the actual owners who would be affected by the new Drainage Report. In the affidavit Mr. Trudell also requested that he be provided with more information with respect to the rationale for assessment in the Report for those owners within the extended area of the watershed. Mr Trudell's affidavit further stated that insufficient time was available to the Drainage Engineer to prepare for the Hearing on the 20th day of December 1999.
Mr. Robertson, in his submissions, argued that he personally was not afforded sufficient time to prepare for the Hearing on the 20th day of December, 1999. He stated that the owners ought to be given Notice in accordance with Subsection 2 of Section 4l of the Drainage Act and in any event if Section 41 (2) did not have direct application, that they required more Notice as a principle of natural justice.
Mr. Courey replied to the submissions of Mr. Robertson advising that the Town of Forest had been afforded adequate notice, commencing with the Decision of the Ontario Drainage Referee in January of 1999. He advised that there had been communications between the respective Engineers and requested that if an adjournment was granted that costs be assessed against the Town of Forest on a solicitor and client basis.
He further argued that the private lands in the Town of Forest had been assigned less assessment than had been set forth in the original Preliminary Report. He noted, however, that there had been increases to the Town of Forest. He stated that if they had not received adequate notice there was no evidence before the Referee that the Block Assessment was not to be taken out of the General Funds of the Municipality.
He concluded by stating that the Town of Forest had had plenty of time and opportunity to request a legal Discovery if they had so chosen.
Mr. Waters, speaking on behalf of the Town of Bosanquet, also argued that the Town of Forest had had ample opportunity to prepare for the Hearing and that there had been repeated communications between the respective Engineers. He also requested that the Town of Forest be assessed costs if the adjournment was granted.
The Ontario Drainage Referee, having heard submissions with respect to the Notice of Motion proceeded to grant the adjournment and set the date for a Hearing of the Town of Forest Appeal to Monday, 7th day of February 2000 at the hour of 10:00. The Referee noted that although a specific procedure for appeals had been provided in the previous Decision of the Referee that the individual Block Assessment Owners within the Town of Forest had not received Notice and accordingly in deference to considerations of natural justice were deserving of further time, notwithstanding the fact that the Town of Forest had been duly notified. The Ontario Drainage Referee further ordered that Mr. Veitch, the Drainage Engineer, provide the Town of Forest, through their solicitor, Mr. Robertson, a statement of the rationale for the Block Assessment within the Town of Forest and with respect to the Assessments made against the Town of Forest. Such document to be delivered by the 10th day of January, 2000.
Mr. Turner requested that the Drainage Referee proceed to deal with his Appeal. Consequently with the consent of all Counsel present, the Hearing continued, dealing with the Appeal of Donald and Anne Turner.
The Appeal of Donald and Anne Turner was with respect to the issue of their assessment. However, it soon became apparent when Mr. Turner addressed the Court that he was also requesting an amendment in the design of the Drain. He outlined his appeal to the Referee as follows:
"Let me state at the outset of our appeal that we are not against the Coultis Drain. We are in fact 100% behind it and feel it is long overdue. We are basically appealing to obtain a measure or "Fair and Equitable" treatment that has been accorded the other owners along the drain and to correct the totally unfair/unreasonable levies of benefit versus outlet ratios set down by the Engineer.
Eleven of the twelve owners on our side of the ravine will benefit from a buried/closed drain & a natural swale that guarantees an end to erosion while we will be subjected to an unsightly rip rap spillway which will undoubtedly be prone to further erosion and washout, yet we receive the highest assessment"
"The appeal of our assessment is based on the following reasons
- On December 14 & 15, 1998, Anne Turner attended the hearing presided over by yourself and presented you with a formal objection/appeal of the Coultis Drain (Copy attached). A. Turner took the stand at the hearing and among other statements requested that the piped drain be extended past our property to a proper outlet point. Mr. R. Waters, Solicitor for the County of Lambton agreed and said the pipe should be extended to the tree/beach line. You in turn directed that the piped drain should be extended past our property but not as far as the proper outlet .This satisfied us and offered erosion protection through our property. Your direction is included in the recommendations on page 4 and page 11 and further stated on page 14 under Construction Scheduling of the Coultis Drain Report. The engineer has chosen to ignore this direction and replace the pipe with a rip-rap spillway which will be washed out by the velocity of the water flowing from a 900 mm pipe on a 5% grade.
This action is difficult to understand and impossible for us to accept why the Engineer did not extend the pipe considering the following exercise in Value Engineering using the unit costs from the latest report:
Case 3 - Extend the pipe and add 6m spillway as per Dec. 1, 1998 Report
Case 1 total from above = $5017.22
6m x 6 m width @ $75.00 = $ $2700.00
Total = $7717.22
Therefore once again, we respectfully request that the pipe (Case 3 above) be extended across our property, this will result in a $2,632.78 savings to all assessed and will guarantee us erosion protection and will be aesthetically pleasing. This is a relatively simple amendment to the contract since the Engineer has designed the closed pipe and the rip rap spillway to the same 5 % grades. Extending the pipe across our property is merely treating us the same as the owners of lots 3 to 13 inclusive, as we have the highest assessment of the 12 owners and are the only owners denied a closed drain. The Engineer also states on page 8 of his report under the sub heading "Identification of Problem" that "provision of this outlet in a closed pipe will secure this outlet for the upstream agricultural drainage".
- The 80% Benefit versus 20 % Outlet is totally unfair and unreasonable when the Engineer's report on page 8 states that only a small percentage of the bank slippage and erosion is directly attributed to overland flow at these locations. This penalizes property owners whose lands have suffered damage from having to accept drainage from others. There seems to be a severe or abrupt turnaround in the Engineer's Reports starting from the initial report and ending with the final report dated September 2, 1999. In the initial report the breakdown of assessment costs were stated to be 40 % Benefit versus 60 % Outlet.
This breakdown is reasonable and fair and is justified by the Engineer's "Identification of Problem" statement above.
In the final report the Engineer has reversed his thinking (with no change to the facts) so that the assessment costs are 80 % Benefit versus 20 % Outlet.
By this reversal the Property Owners adjacent to the ravine are in reality being penalized for receiving damage to their lands caused by having to accept drainage from others. The proposed drain does not increase the value of these properties but only maintains it.
However, if there is in fact an increase in property values along the drain, then a closed pipe along with a natural swale is aesthetically pleasing while a rip rap spillway is a detraction and very displeasing aesthetically. In view of this we again ask for the pipe to be extended across our property.
The majority of the water exiting the drain as stated above does not originate in Glendale Beach, but comes from the Town of Forest and farmland in the drain's watershed and should be assessed accordingly.
The erosion and slippage is in the ravine bordered on the south side by lots 3 to 14 inclusive and on the north side by the Forest Cliff Camp. Both sides are listed in the Schedule of Assessment as "Private Lands: Non-Agricultural". The assessments levied against Lots 3 to 14 total approximately $83,431.00 while the assessment levied against the Forest Cliff Camp is approximately $23,437.00. This again is a 20% to 80% ratio and therefore is totally unfair and unreasonable. If there was only one owner instead of twelve on the south side of the ravine, would the Engineer's breakdown of assessment been as stated above? No! in all probability it would have been closer to 50% to 50% since it is the same ravine, has the same erosion problems and is the same length. The Forest Cliff Camp while supposedly "Non-Profit" is income property and can recoup the assessments through camp fees while the owners of lots 3 to 14 cannot.
We strongly object to being assessed any portion of the fees accrued by W. Bartlett and J. A. McBride, Engineers, as we were denied any "Statutory Process" and we were totally excluded from the Drain by MIG Engineering and the Town of Bosanquet in the Schedule of Assessment dated May 20, 1997. We were purposely and knowingly excluded from all meetings held with the owners of lots 3 to 13 inclusive. This is supported by the attached copy of a note handed to A. Turner by Mr. McBride at the hearing in Sarnia on December 14, 1998. We never learned of being re-included in the drain until returning from vacation on December 12, 1998. "
During the examination of Mr. Turner and during the testimony given by Mrs. Turner, certain misunderstandings were resolved and a consensus developed with respect to the following issues.
It became apparent that Mr. and Mrs. Turner had intended that the enclosed pipe would be extended through the length of their property whereas the Engineer and the other Parties involved had understood their request was to have the "Drain" extend across their property. The result was a design that extended the "drain" across their property, which included approximately 23 meters of pipe and 23 meters of rip rap spillway. Mr. Turner verified the misunderstanding and advised the Court that he wished the pipe to extend across their property with the spillway extending beyond over the property of the Corporation of the Town of Bosanquet.
With respect to the issue of assessment, Mr. Turner conceded that he did not disagree with the calculations of the Drainage Engineer which indicated that the assessment, after all factors were considered, resulted in approximately 66% with respect to benefit and 33% with respect to outlet. Mr. Turner had originally maintained the ratio to be 80% benefit and 20% outlet.
The differential in the assessment with respect to the Forest Cliff Camp side of the ravine as opposed to the Glendale Beach cottage development was explained by the Engineer to the apparent satisfaction of Mr. Turner. Mr. Veitch explained that the differential in assessment related to the assessed value of the properties, namely the difference between the highly developed Glendale urban subdivision as opposed to the undeveloped and restricted development potential of the lands on the Forest Cliff Camp side of the ravine.
After a brief recess the Parties returned to the Court Room to advise the Referee that they had reached a settlement with respect to all issues involved in the Turner Appeal. They therefore requested that the Referee grant an Order in the following terms:
(a) That the design of the drain be amended to provide for an extension at the downstream end of the drain of the enclosed pipe to extend fully across the Turner property. The spillway to be constructed as designed be on lands owned by the Town of Bosanquet. If an amendment to the by-law approving the drain is required, such amendment is hereby ordered.
(b) That the extra cost of the extension to be assessed to all owners assessed on the drain on a pro rata basis.
(c) That all other issues raised in the appeal of Donald and Anne Turner be dismissed.
(d) That the matter of costs be reserved to be determined at a later date after submissions are received with respect to the same from the various parties.
DATED: January 17, 2000
Delbert A. O'Brien, Q.C.
Ontario Drainage Referee