After 19 years, the South Innisfil Creek Drain controversy is a step closer to resolution.
The drainage tribunal met in Innisfil this week to hear from landowners impacted by the drainage project, landowners who will be assessed a share of the costs.
The three-person tribunal heard challenges to the assessments, but also details of the history of the project over nearly two decades.
The story began in 2000, when the 97-year-old South Innisfil Creek Drain – largely untouched since 1956 – overflowed its banks, causing serious flooding and crop losses in the area known as the Cookstown Marsh market garden area.
Local landowner and farmer Boris Horodynsky, who lost an estimated $1 million in the flood, petitioned the town under the Drainage Act, asking for maintenance and repairs to the drain. His petition was ignored.
Horodynsky finally took the Town of Innisfil to court, winning a civil suit, but the ordered maintenance still wasn’t carried out.
Finally, in 2005, the drainage referee ordered the municipality to retain Dillon Consulting to identify the work needed and complete an engineer’s report.
A preliminary report was presented in 2006, but it wasn’t until 2013 that the final report was filed. By then, costs had ballooned from the original estimate of almost $2.7 million, to about $7 million, including a hefty bill from the consultants.
The costs and proposed assessments sparked fear, outrage and protests from landowners within the drain’s watershed, who would be asked to foot the bill.
It led to the town rejecting the report and appealing back to the drainage referee, asking for relief from the original order.
The decision by drainage referee Robert Waters in November 2014 “untied the hands” of the town, and led to the subsequent hiring of RJ Burnside & Associates, which reviewed the documents, conducted field visits, consulted with landowners, and, in February 2019, filed a new final engineer’s report.
This time, the cost was about $5.25 million, which included Dillon Consulting’s $1.05 million fee.
And this time, about $2.92 million of the cost would be assessed to private landowners, partially offset by provincial grants and allowances. The remainder was assessed to the towns of Innisfil and neighbouring Bradford West Gwillimbury, Simcoe County, the Province of Ontario, and the Ministry of Transportation (MTO).
Innisfil accepted responsibility for $835,000 of the Dillon Consulting fee, further reducing the burden on landowners.
Earlier this week, the provincial drainage tribunal met to hear appeals of the assessments and allowances resulting from the final engineers’ report.
“It’s a very big step,” said Jason Inwood, strategic leader of operations for the Town of Innisfil.
There are approximately 800 properties within the drain’s watershed identified as benefiting from the drain, but only seven landowners filed an appeal.
Some were simple disagreements over their share of the costs, but three had wider implications.
Resident Diane Hogarth, who played a key role in the landowners’ opposition to the original Dillon report, presented a chronology of events.
She told the tribunal that the Town of Innisfil repeatedly ignored ordered maintenance of the drain and described both the town and the drainage superintendent of the day as “in non-compliance and in contempt of a court order.”
Records from 2004 to 2014 show that the only maintenance carried out was the removal of deadfalls and beaver dams, she said.
Calling it a “theme of negligence and non-compliance,” Hogarth suggested the lack of maintenance contributed to the high cost of work proposed in the original Dillon report, which she called “unrealistic and unfair and excessive.”
Some landowners were facing bankruptcy or the loss of their homes, she noted.
The new Burnside report reduces the burden on landowners, but Hogarth still called on the town to bear a greater share of the costs.
“The landowners were not negligent. The landowners were not irresponsible, yet they have to pay,” she said.
Kerry Yamamoto objected to paying the assessment on his properties in the Market Garden until there is a firm timeline for much-needed Highway 400 culvert repairs by the MTO. Of three culverts at the drain, two are perched nearly one metre above the flow.
As of Jan. 4, 2019, there had been no commitment on the start or completion of the work, Yamamoto said, noting that the engineering report suggests that if work on the drain is undertaken before the MTO fixes the culverts, “flooding will create a much more disastrous flood than if the work had not been done.”
He told the tribunal: “I don’t feel confidence in making such a large payment towards an uncertain solution.”
Like Hogarth, he called on the town to pay a greater share of costs out of general funds.
Engineer Jeff Dickson indicated there was a “verbal commitment” from the province that the work will be done within a three-year period once the engineer’s report is approved and the Innisfil Creek Drain bylaw has third and final reading.
Lawyer for the municipality, Paul Courey, told Yamamoto: “Had the town done the maintenance and repairs, you would have been charged some of the maintenance.”
“Had the town done its due diligence, we wouldn’t be here today,” replied Yamamoto.
The final appellant was Succession Financial Group, owner of a golf course within the drainage area. Succession Financial didn’t appeal its assessment, but challenged the “allowance” it was offered for the loss of four bridges used by golfers to cross the drain.
The engineering report includes an allowance for only one bridge, with an estimated replacement cost of $60,000. Through cost-sharing, the owner would be offered an allowance of $41,600.
Dickson said he had based the value on what it cost “an upstream landowner” to replace a heavy-duty crossing for agricultural equipment and had conferred with engineers at RJ Burnside & Associates to confirm that the cost was fair.
Dickson argued that the Drainage Act permits “one allowance for a crossing” per property, a payment to compensate a landowner when a drain cuts across a property and “severs” the land. Any additional crossings are “of value only to that parcel, so the parcel should bear the costs,” he said, not other property owners within the watershed.
Expert witness and engineer John Kuntze agreed. In his view, he said more than one crossing of a drain would not be a necessity but a “convenience for the owner,” to be “assessed 100 per cent to that owner. It is not a requirement of the drain.”
But the lawyer for Succession Financial, Marc Kemerer, disagreed, pointing out that unlike an agricultural parcel, all four bridges are necessary to the operation of the golf course “for reasons of safety and functionality.” He brought in his own expert witness, engineer David Bonsall, to testify that the replacement cost proposed was “an insufficient amount.”
Bonsall said a bridge of the span indicated, that would meet the building code, would cost from about $50,700, to over $66,000 for the superstructure alone, based on quotes from a construction company. Foundation costs of over $43,000 each for two pedestrian bridges, and $50,000 each for two maintenance bridges – as well as engineering costs, permits and contingencies – brought the total to $525,000, plus HST.
Bonsall described the new total as “fair value and on the lower side of what we might see.” He also suggested that demolition costs of $10,000 per bridge should be included in the allowance.
Golf-course owner Nick Torkos also argued for greater compensation, although he later made it clear he supports the drainage project.
“I have been flooded for the past 15 years,” he said. “I’ve been waiting for this for ten years. This will only bring improvement for everybody.”
Dickson, under cross-examination, repeated that the Drainage Act supports “one allowance for one crossing” per property, but admitted, “the value is only my opinion.”
Both the valuation and the limit of “one crossing” were challenged by lawyer Kemerer in a back-and-forth exchange.
“Fair and realistic compensation – that is what we are here before the Tribunal to ask for,” he said, “so the golf course can continue on as it did before.”
Courey rejected the arguments and also suggested that Hogarth had described “a history of bad behaviour on the part of the town… that is no longer relevant.”
As for Yamamoto’s concerns over the timing of the MTO replacement of perched culverts, Courey said, “The town is not in position to challenge them, when the MTO has a timeline of three years…. That is all the assurance Mr. Yamamoto or anyone else is going to get.”
Chairperson Harold McNeely asked if it was within the power of the tribunal to order the MTO to undertake the work on what he described as “a major impediment to the flow of water.”
“Probably,” said Courey. “I think you could make that order... The MTO response is anybody’s guess.”
As the two-day tribunal wrapped up, McNeely promised, “We’ll have our decision out in due course.”
“Then immediately thereafter we bring the report to council,” said Inwood, for the third reading of the bylaw, followed by tendering and the start of the drainage project “downstream of (Highway) 400, and within the windows of the Department of Fisheries and Oceans.”
“After 19 years, this needs to end,” said Courey.
There was also a last-minute attempt by a numbered company, to present a report at the tribunal without having participated as an appellant.
McNeely rejected the application as “premature, in that there are other processes in place to proceed with the municipality.”
