W. W. Turner Pumping Works on the Whiteboard Tap Drain (Re), 1997 ONAFRAAT 50

Agriculture, Food and Rural Affairs Appeal Tribunal

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 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

W. W. Turner Pumping Works on the Whiteboard Tap Drain Township of Chatham

W. W. Turner Pumping Works on the Whiteboard Tap Drain (RE) 1997 ONAFRAAT 50

STATUTE:

Drainage Act

HEARING:

November 6, 1997

DATE OF DECISION:

November 21, 1997

1997-50

NEUTRAL CITATION:

1997 ONAFRAAT 50

W. W. Turner Pumping Works on the Whiteboard Tap Drain Township of Chatham

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

AND IN THE MATTER OF:

An application to the Ontario Drainage Tribunal (the Tribunal) by Jim Kada, Dennis Burgess and Anthony Dobbelaar requesting the Tribunal review its July 2, 1996 decision on appeals from the court of revision for the W.W. Turner Pumping Works on the Whitebread Tap Drain, Township of Chatham

Before:

Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Russell Piper, Member.

DECISION OF THE TRIBUNAL

This application was considered by the Tribunal on November 6, 1997

The Background

On June 18, 1996 the Tribunal held a hearing into appeals from several landowners concerned about the decision of the March 11, 1996 Court of Revision for the W. W. Turner Pumping Works on the Whitebread Tap Drain in the Township of Chatham. A decision dated July 2, 1996 detailed the Tribunal decision on that appeal. The reasons for that decision are as follows:

1. In the opinion of the Tribunal, there is an improved outlet provided by the W. W. Turner Pumping Works for those lands that drain directly to the pump, and therefore a benefit to these lands.

2. The pump is a more expensive alternative to the existing siphon and the lands directly affected by the improved outlet should be charged part of the incremental cost of the improvement.

3. In the opinion of the Tribunal, the W. W. Turner Pumping Works cannot provide a benefit to the lands in Sombra Township.

On October 28, 1997 three assessed ratepayers, Mr. Kim Kada, Mr. Dennis Burgess and Mr. Tony Dobbelaar, asked the Tribunal to reconsider its July 2, 1996 decision on the basis that an important part of the evidence was misunderstood by the Tribunal. The three ratepayers requested that the Tribunal convene a new hearing on the matter so they could present this evidence plus additional new evidence that they have. Attached to the request was a cost estimate from Mr. David McGeorge dated September 5, 1997 in which Mr. McGeorge provides an estimated cost of replacing the existing tunnel under the Whitebread Tap Drain. Mr. McGeorge offers three alternatives:

1. A new cast in place concrete structure at $100,000.00.

2. A welded steel pipe on a concrete base with concrete headwalls at $75,000.00 to $80,000.00.

3. A high density polyethylene pipe on a suitable foundation at $62,000.00.

When the Tribunal receives a request for a rehearing, the Tribunal considers the application on its own or on notice to other parties, and the Tribunal then comes to a decision, refusing the application, or ordering a rehearing. When a rehearing is ordered, the Tribunal order will set out the conditions of, and procedures for, the rehearing. The purpose of a rehearing is to correct any errors or wrongs resulting from the Tribunal decision. In dealing with requests to reconsider previous decisions, the Tribunal must balance a number of competing interests. It is important that applicants fully disclose the basis for the rehearing request and also fully disclose the actual evidence justifying the rehearing. The Tribunal will consider the following principles before a rehearing is ordered.

1. The integrity of the hearing process. This requires that all parties properly prepare for the hearing and bring forward all relevant evidence. The rehearing tests ask the questions: Was the proposed evidence to be considered at the rehearing available at the time of the original hearing? Could this evidence have been made available by the parties by due diligence? Have the applicants for the rehearing applied for it expeditiously?

2. The public and private interests in having correct decisions. The operating assumption is that the Tribunal has received all relevant evidence, correctly considered all aspects of the case, including legal and engineering principles, and reached a correct decision. If that is not so, there is a public and private interest in correcting the errors. The rehearing tests ask the following questions: Are there any material factual or legal errors on the face of the decision? Have the fundamental facts and circumstances so changed that the decision no longer reflects the realities? If the proposed evidence had been received at the original hearing, would the decision have been different?

3. The public and private interests in finality of Tribunal decisions. The rehearing tests ask the following questions: To what extent have the parties relied on the decisions? Have the works been completed? To what extent will the non-applicant parties be affected by the result sought by the applicant?

4. The procedural and financial costs of a rehearing. Generally, if a rehearing is ordered, all original parties would be given notice and have the opportunity to participate in the rehearing. There are very significant procedural and financial costs associated with a rehearing. The rehearing tests ask the following questions: Is the correction of the alleged wrong out of proportion with the overall effect of the existing decision? To what extent will the non-applicant parties be affected by the procedural and financial cost of a rehearing, regardless of the outcome of the rehearing? Can the non-applicant parties be fairly expected to absorb the cost of individual participation and the overall costs that may be assessed to the drain? If the answer is no, can these costs be fairly expected to be absorbed partially or fully by the applicants?

In reviewing the current application the Tribunal notes that:

The original decision was delivered on July 2, 1996 and the request for reconsideration is dated October 28, 1997, more than a year later.

The request does not provide information that was not available at the time of the original hearing other than referring to "additional new evidence" without providing any indication of what the new evidence is or how that evidence may impact on the decision made in 1996.

Exhibit 8 at the June 18, 1996 hearing was a 1992 preliminary report filed by Mr. McGeorge. In this report Mr. McGeorge estimated the cost of:

• Installing an electric pump with ancillary works at $47,685.

• Cleaning the tunnel, effecting minor repairs and installing a PTO driven pump at $31,735

• Replacing the tunnel with a new steel culvert at $30,580.

After careful consideration of the evidence filed and the submissions made the Tribunal decided to deny the request to reconsider its July 2, 1996 decision.

The Tribunal was not convinced by the submission that a reconsideration hearing is warranted in these circumstances

Dated at Chatsworth, Ontario this 21st day of November, 1997