Articles: 1980's: Reeds Bay Drainage Project Articles

Submitted by George Halladay

The Whig - Standard. Kingston, Ont.
Jul 2, 1985. pg. 1
News Wolfe I.
The Ontario Drainage Tribunal has reserved decision following a day-long hearing into the property assessments levied in the $90,000 Reed's Bay Municipal Drain project here.
Tribunal Chairman D. A. O'Brien of Pembroke, noting that the panel had "never faced a situation like this," said Friday the decision will be mailed within a few weeks.
It was the tribunal's fourth hearing on the controversial drain proposal since it was launched four years ago. Other members on the panel were vice-chairman Ernest C. Brisco of Chatham, Basil Dawley of Winchester and Robert Drummond of Smiths Falls.
Representations at the hearing were made by Isobel O'Shea and Geoff Matthews on behalf of assessed landowner Ida Lollar, and by lawyer David McFadyen acting for owners Frank VanStrien, the Kingsley family and E. Hasselaar. Appellant Jack Broeders spoke in his own behalf and lawyer Michael Carty represented the Township of Wolfe Island. Ottawa engineer Brian Boyd of A.J. Graham Engineering Consultants Ltd., who took over the project in January from retired company president Alex Graham, gave evidence for the firm.
There seemed little likelihood that the fourth hearing would be the last. Isobel O'Shea stated following the session that Lollar, her sister, will be appealing the decision "whatever it is."
At issue are complaints by appellants that both assessments and credits (granted to properties subject to damage by ditch-digging) have been unfairly calculated or distributed.
The tribunal is free to adopt any of a wide range of possible solutions to the complex matter. It may, for example, accept and endorse: The November 1983 report of the engineer, which established the assessments and allowances.
The January 1985 court of assessment revision majority ruling that 65 per cent of levies against the 17 fringe owners should be eliminated. In this case, the majority ruling ordered that the 65 per cent would be billed back to the three owners who gain benefit from the drain, Broeders, John Karremans and Dennis Mosier.
The court of assessment revision's minority report, which was submitted by John O'Shea. His report proposed virtual abandonment of the project, with the township assuming temporary liability for the engineering costs incurred to date. These costs, estimated by Brigid Pyke of the Ontario Federation of Agriculture to be $32,000, could then become the subject of a legal action against the engineering firm, O'Shea suggested. Or any combinations of the above.

The Whig - Standard. Kingston, Ont.
Sep 23, 1986. pg. 1
News Wolfe I.
A hearing could conclude today into whether Wolfe Island Township Council had the right to defy a to defy an Ontario Drainage Tribunal order.
The hearing, at the Frontenac County House in Kingston, looks at the new council's decision last Feburary to reverse a decision to build the Reeds Bay Drain.
Drainage Referee William Turville of Newmarket will reserve judgment on the precedent-setting case following a second day of testimony today. When Turville's ruling does come, it will establish whether a municipality can refuse a direct order from the Ontario Drainage Tribunal, a three-man judicial body set up in 1970s to administer the revised Drainage Act.
In Feburary, the newly elected island council repealed a 1985 bylaw, effectively halting a tender call on the controversail drain. When island resident Brigid Pyke objected formally to the repealing bylaw, the matter was sent for a ruling to the drainage referee. The referee is a lawyer who is given the powers of a Supreme Court judge under the Drainage Act.
Pyke, a vice-president in both the Canadian and Ontario federations of agriculture, testified yesterday that she acted on behalf of petitioner Jack Broeders, a farmer who has been trying to build the Reed's Bay drain since 1981.
In 1985, a drainage tribunal -- the third called on the matter in three years -- ordered Wolfe Island council to build a scaled-down drain within seven months.
Broeders spent four hours on the stand yesterday backgrounding his five-year struggle to drain about one-third of his 600 acre dairy and cash crop operation.
Township lawyer Michael Carty of Kingston refused to reveal whether he will call either of the township's two witnesses, Reeve Tim O'Shea or Clerk Mrs. Mae Bennett tomorrow. If he doesn't, the lawyers for both sides will sum up their arguements today.

Publication title: The Whig - Standard. Kingston, Ont.:
Jul 31, 1985. pg. 1 Source type: Newspaper
The Ontario Drainage Tribunal has overturned the February decision of the locally appointed Court of Assessment Revision on the Wolfe Island Reed's Bay municipal drain.
The decision also restored to their original levels assessments levied on some 20 properties.
Tribunal chairman Delbert O'Brien, who described the project as the most troublesome ever faced by his group, wrote the decision. It was based on the record-setting fourth tribunal hearing into the Wolfe Island drain. As a result, six of the seven appellants will be assessed 65 per cent more of the local costs of the $90,000 drain than the Court of Revision had ordered. The seventh, Wolfe Island farmer Jack Broeders and chief beneficiary of the project, will see his assessment cut by a similar proportion.
The tribunal also rejected the appeal of Ida Lollar, which sought to have the tribunal re-examine the cost-benefit issue involved. O'Brien said in his ruling that "the result is the creation of a drainage project where the administrative costs will greatly exceed the total cost of the work."
Administrative overhead had already reached "absurd proportions," he said. Total construction costs of the drain are now estimated to be $35,000, he said.
The chairman noted that, according to the earlier Court of Revision ruling, all appellants except Broeders would have enjoyed assessment reductions of 65 per cent. Consequently, the burden on Broeders would have risen from $10,000 to $21,000, he said.

The Whig - Standard. Kingston, Ont.
Sep 25, 1986. pg. 1
News Wolfe I.
Must Ontario's municipal councillors continue to hold their noses and pass the necessary bylaws when they are petitioned by farmers for a drain?
Or do councils have some form of veto power -- under Section 58, Subsection 3, of the Ontario Drainage Act -- to quash drainage projects? That's what must be decided by drainage referee William Touville of Newmarket, after a two-day hearing into whether the $90,000 Reed's Bay Municipal Drain should proceed on Wolfe Island.
For Touville to rule that the Drainage Act gives the municipality any veto power would be precedent setting and would have far- reaching effects on how Ontario farmland is drained of excess water.
Almost 600 drainage projects are started in Ontario every year. Until now, the prevailing view has been that the affected muncipality, as the province's agent, must pass the necessary bylaws if it is presented with a legal petition by farmers to build a drain.
This interpretation had never been challenged -- until the newly- elected Wolfe Island Township Council last February defied a direct order from the Ontario Drainage Tribunal to build the Reed's Bay drain. Council instead rescinded an earlier bylaw, which had approved the drain. Under the Act, if a farmer wants a drain, he must gather a petition of 65 per cent of affected landowners, if he doesn't own 65 per cent of the land himself.
The petition goes to municipal council, which until now has rubberstamped such appeals. Council calls for an engineer's report on which it bases a decision to proceed with or cancel the drain. Until now, the Act has been interpreted to give council discretion only at that stage.
On Wolfe Island, an earlier council approved the engineers' report for a drain petitioned by farmer Jack Broeders. Council then grew concerned about the cost, and sought a smaller, less-expensive drain. Broeders, however, wanted the original drain and appealed the matter to a three-member drainage tribunal, called under Drainage Act by the ministry of agriculture.
The tribunal ruled that the drain must be built but at reduced size and cost, and gave Wolfe Island seven months in which to do it. The previous council then passed another bylaw last September to do just that, but the present council, elected in the interim, threw that bylaw out in February.
That's where Section 58 (3) of the Drainage Act comes into the argument. It states that a bylaw may be repealed at any time before work commences and before any assessment has been levied. In such cases, the section states, the council shall pay out of general funds all expenses in connection with the drain.
The township's lawyer, Michael Carty of Kingston, argues that Section 58 (3) gives councils the right to rescind a drainage bylaw, although he said he wouldn't go so far as to conclude that the section gave the municpality an absolute power of veto.
But Broeders' lawyer Bruce Carr-Harris said at the hearing that the Act elsewhere gives final authority to the drainage tribunal, and that once it has approved a drain, it's too late for a council to use its repeal power under Section 58 (3).
Carr-Harris said the powers of the municipality's bylaws must always be subordinate to the provincial statutes, such as the Drainage Act, and its agents, such as the drainage tribunal.
The drainage tribunal does have extraordinary powers under the Drainage Act. Section 51, for example, allows the tribunal to order or direct such things to be done as are authorized by the Act "or (such things that) it considers proper to carry out the purpose of this Act."
Depending on how he interprets Section 58 (3), referee Touville will either:
quash the rescinding bylaw, thus making the original bylaw legal and allowing work to start on the drain; order township council to pass a new bylaw to start the drain; rule that the municipalities have veto powers under the Drainage Act, and effectively quash the drain project.
There are other issues at stake in Touville's decision which are more specific to the Reed's Bay drain.
The drain must be completed before Jan. 30, 1987, to qualify for a one-third grant from the Eastern Ontario Development Corporation. Touville must take into consideration a construction period of two months, much of which even under the best of circumstances, will take place in late fall.
Touville must also decide two other side issues. Was a motion to quash the repealing bylaw a proper document? It was filed by township resident Brigid Pyke on behalf of petitioner Jack Broeders, but there is a question whether Broeders should have filed it himself.
And, if Touville decides that Wolfe Island council acted in bad faith when it quashing the drainage project, the referee could charge the cost of the referee's hearing to the municipality.
Already the cost of fighting the drain exceeds the assessed costs of the drain. It was estimated at the hearing that it has cost the township between $40,000 and $60,000 in legal, engineering and consulting fees to date.
No matter what Touville decides, the ruling could be appealed to the Divisional Court -- and both parties seem content to allow that to happen.

The Whig - Standard. Kingston, Ont.
Oct 1, 1987. pg. 1
News Wolfe I.
MARYSVILLE
With the threat of further costly legal battles, Wolfe Island Township Council awarded a $50,657.90 contract to proceed with the controversial Reed's Bay agriculture drain here last night.
After deliberating behind closed doors for an hour and a half, council emerged to award two contracts to the lowest of five bidders, Willis Kerr of Mountain, Ontario.
Kerr bid $40,278.90 to clean out the drain and $10,379 for a culvert installation on Highway 95.
Reeve Tim O'Shea, who cast the deciding vote last night, said that there was little doubt that the threat of further legal action by drainage referee William Turville swayed his council. Council budgeted more than $40,000 in legal fees in 1986.
O'Shea said that Councillor Mildred Hawkins-Walton and Deputy Reeve Donald MacDonald supported the motion under protest. Opposed were John O'Shea and Jan Hasselaar.
The five-person council was elected in 1986 with a mandate to stop the drainage scheme. In a precedent-setting move, they challenged the authority of the Ontario Drainage Act by repealing a township bylaw to proceed with the drain. That brought them before Turville, who has the power of a Supreme Court judge.
Turville ruled in May that the drainage tribunal -- and not a municipal council -- is the ultimate authority under the Ontario Drainage Act. He ordered that the island council proceed with the drain provided that federal and provincial grants amounting to two- thirds of the total cost of the drain were still available.
When council found that the one-third federal grant wasn't available, O'Shea said that council decided not to proceed this summer. Just two weeks ago, township council learned that up to $60,000 in federal money was available.
Barely ahead of a second Turville order to proceed, council decided last month to call tenders. They instructed the engineering firm of A.J. Graham of Ottawa to proceed, and last night received bids from five companies.
After opening the bids, council met behind closed doors with lawyer Diane Burkom to consider legal ways to stop the drain. In the end, O'Shea said that it just became too costly with the taxpayers' money to keep fighting.
The contractor is expected to complete most of the 4,186 yard drain by mid-December. Kerr Construction must complete the project by mid-July or lose a $5,000 deposit.
Council grasped at one last straw last night, but that evaporated when O'Shea tore open the first bid. Kerr's low bid, as well as the second lowest bid of $74,668, submitted by R.S. Hardy of Lansdowne, were both within the guidelines under the Ontario Drainage Act.
Three of the bids, Morven Construction of Napanee at $103,161.10, Lewis W. Bray of Green Valley, at $113,398.76, and Gerald Best of Lansdowne at $142,186, did exceed the over-run costs set out in the drainage act. If the accepted bid had exceeded the $35,000 estimate by 133 per cent, then council would have been obliged under the act to recall the petitioners seeking the drain and ask them if they wished to reconsider. That would have delayed the drain into the new year with weather playing a major role.
An elated Jack Broeders, a major petitioner who owns over 600 acres, has waited more than six years for council to finally call tenders. He submitted his petition in 1981 hoping the drainage act would help him clear nearly 200 acres of unproductive and low yield farmland.
O'Shea invited questions from the audience after opening the tenders and a debate broke out between the Broeders and those opposing the drain, showing that the bitterness is still not far from the surface.
Residents included a petitioner, John Posthumus, who complained that he had not been kept informed about the progress of the drain. He wondered why he had not been called before the drainage referee to testify and had not been told tenders had been called.
Lawyer Diane Burkom explained that council was now back to where it was two years ago. She said that there had been no fresh steps and so no public notices were required. She explained that the hearing before the referee was a legal action between the township and Broeders.
At one point, while the debate bounced back and forth in the audience, councillors continued the meeting questioning what was the next step in the tender call. They ignored the debate and didn't make any move to stop it.
"They have heard it all before," said Brian MacDonald, a former councillor and supporter of Broeders.

The Whig - Standard. Kingston, Ont.
Dec 15, 1987. pg. 1
News Wolfe I.
When they awarded the excavation contract for the Reed's Bay drain, Wolfe Island Council had good reason to believe that ended their dealings with the Ontario Drainage Tribunal.
Council had played hard ball with the provincially-appointed tribunal for four years, even launching a court challenge of its authority to enforce the drainage act. After losing the court battle, and under threat of legal action, the island council finally awarded the excavation contract in late September.
Fate intervened recently to throw the two antagonists together once more. Contractor Willis Kerr of Mountain unexpectedly struck rock in the path of the drain. Since the amount of rock is significant enough to change the drain's cost, council must now apply to the drainage tribunal to amend its drainage bylaw to cover the cost.
The tribunal's approval of the amendment should be straightforward, provided there is no opposition. If there are objections to the cost increase, then the tribunal will hold public hearings to hear objections and make a decision.
Township council has two options, according to the firm of A.D. Revill Associates of Belleville, the consulting engineering firm council hired to supervise the construction of the 4,186-yard drain.
Project supervisor Alan Revill estimates that it will cost $16,000 to remove 12 to 18 inches of rock for a distance of 1,147 feet. A second option -- and the one that Revill favors -- is to bypass the rock, which would cost $6,700. Test holes dug last week show the bypass option is possible.
The provincial and federal governments pay two-thirds of any cost increase. The remaining third is assessed against the benefiting landowners along the drain. The major petitioner, Jack Broeders, will pick up 60 per cent of the difference assessed against the drainage ratepayers.
At first, some people feared that the tab for excavating the rock would push the total excavation cost beyond the preset over-run limit of one-third of the total cost -- and send the issue back to the ratepayers for approval.
However, the safeguard is used only in one specific instance. John Johnston, who administers the drainage act, explains that the section of the drainage act containing the cost over-run clause comes into effect only when the tenders are opened.
If the lowest bid is one-third higher than the pre-tender estimate, then the landowners are given the opportunity to decide whether the project will proceed.
In Wolfe Island's case, the tender bid of $40,278.90 for excavation exceeded the estimate of $35,000, but was below the ceiling of $48,000 allowed under the drainage act.
However, the estimated cost to excavate the rock -- $16,000 -- would have put the over-run close to the limit, so there was concern among those unfamiliar with the drainage act.
But Johnston says that once the contract is awarded, there is no need for ratepayers to be polled again if costs rise.
Johnston says that it is only common sense that the ratepayers are given the opportunity to object to any significant increase. Actually, he feels that ratepayers should be consulted on any cost that is 10 per cent higher than estimated.
Another concern is whether the revised project will still qualify for the one-third federal grant. The province and the petitioners and those who benefit from the drain split the remaining two-thirds of the cost. "The federal grant is $60,000, which means the total cost of the project can't exceed $180,000," Johnston says. "It is my understanding that even with an $8,000 to $10,000 over-run, the total cost of the project probably won't exceed $130,000."
The bitterness over the Reed's Bay drain has never been far from the surface. It is has taken petitioner Jack Broeders more than seven years to start work on clearing a 200-acre flooded area on his 600-acre farm. Broeders has fought a cost-benefit analysis, three tribunal hearings and an appeal to the drainage referee. Council challenged the authority of the drainage tribunal in a precedent-setting legal move last fall before the drainage referee, who has the same authority as a Supreme Court justice.
In May, William Turville, the drainage referee, ruled that the drainage tribunal, and not the municipal council, is the ultimate authority under the drainage act. He then ordered the township council to proceed with the drain and by complying, council has good reason to think they have seen the last of the Reed's Bay Drain on their council agenda.

The Islands: Articles: 1980's: Reeds Bay Drainage articles