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 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Indian Creek Drain City of Port Colborne
Indian Creek Drain (RE) 1998 ONAFRAAT 1, 1998 ONAFRAAT1 2
STATUTE:
Drainage Act
HEARING:
February 19, 1998
DATE OF DECISION:
March 9, 1998
1998-12
NEUTRAL CITATION:
1998 ONAFRAAT 1, 1998 ONAFRAAT1 2
Indian Creek Drain City of Port Colborne
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF:
An appeal to the Ontario Drainage Tribunal by Michael G. Cloutier and Herbert D. Sonnenberg under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision and by Brian Fisher, Herbert Sonnenberg, Thomas & Margaret Dennis, Michael G. Cloutier, D.M. Henderson and Paul Szigatti under Section 48 of the Act from the February 21, 1997 engineer’s report on the Indian Creek Drain in the City of Port Colborne.
Before:
Vernon Spencer, Chair; Andrew Wright, Vice-Chair; Russell Piper, Member.
Appearances:
Herbert Sonnenberg and Michael G. Cloutier, appellants.
Mr. Bryan Wiebe, P. Eng., on behalf of the Respondent, the City of Port Colborne.
DECISION OF THE TRIBUNAL
This appeal was heard in Port Colborne, Ontario on February 19th, 1998. Several ratepayers assessed for the Indian Creek Drain appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 and 54 of the Drainage Act (the Act) from the February 21, 1997 engineer’s report on the Indian Creek Drain in the City of Port Colborne (the City). These ratepayers complain that the assessment and allowances require modification, that the benefits are not commensurate with the cost of the work and that the work does not provide a sufficient outlet.
Patricia Premi, Deputy Clerk of the City, performed the duties of the Clerk of the Tribunal.
Section 48 of the Act is as follows:
- (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 under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.
- (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).
R.S.O. 1990, chap. D.17, s. 48.
Section 54 of the Act is as follows:
- (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.
(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.
. (3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.
R.S.O. 1990, chap. D17, s. 54.
The Background
The Indian