8th Concession East Drain (Re), 1998 ONAFRAAT 35

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:

8^th^ Concession East Drain Township of Colchester South

8^th^ Concession East Drain (RE) 1998 ONAFRAAT 35

STATUTE:

Drainage Act

HEARING:

August 20, 1998

DATE OF DECISION:

August 27, 1998

1998-35

NEUTRAL CITATION:

1998 ONAFRAAT 35

8^th^ Concession East Drain Township of Colchester South

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 Mr. Carl Hape under Section 48 of the Drainage Act and by Mr. Carl Hape, Attilio Grosso, L. Bomben-Grosso and Richard White under Section 54 of the Act with respect to the 8^th^ Concession East Drain in the Township of Colchester South.

Before:

Mr. John Taylor, Vice-Chair; Mr. Herbert Todgham, Vice-Chair; Mr. Ed. Mailloux, Vice-Chair; Mr. Bob McKim, Member.

Appearances:

Mr. Paul Courey, on behalf of the appellant, Mr. Carl Hape.

Mr. Elvey Marshall, on behalf of the respondent, the Township of Colchester South

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Colchester South (the Township) located in Harrow, Ontario on Thursday August 20^th^ , 1998. Michael Girard, clerk treasurer of the Township performed the duties of the Clerk of the Tribunal.

Mr. Carl Hape appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act)and Mr. Carl Hape, Attilio Grosso, L. Bomben-Grosso and Richard White appealed to the Tribunal under Section 54 of the Act with respect to the 8^th^ Concession East Drain in the Township of Colchester South.

Section 48 of the Act is as follows:

48. (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.

48. (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:

54. (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.

At the beginning of the hearing the Tribunal issued an order that all landowners assessed or compensated in the March 27^th^, 1998 engineer’s report on the 8^th^ Concession East Drain, Township of Colchester South, having been served notice of this hearing, are made parties to this hearing.

Preliminary Matters

At the beginning of the hearing the Tribunal indicated to the parties that, having read the notice of appeal, the appellant statement and the engineer’s report, it appears that there are allegations of breach of trust and/or negligence on the part of the Township of Colchester North and/or its consultants and contractors involved in a 1991 repair to the 8^th^ Concession East Drain.

Mr. Marshall, counsel to the Township, filed with the Tribunal a Notice of Motion that has been filed with the Referee. This motion is between Carl Hape, appellant, and the Corporation of the Township of Colchester North and the Corporation of the Township of Colchester South. The motion is for:

1. An Order declaring that the Respondents, or either of them, failed to properly supervise the work of a contractor done as a work of repair and improvement on the 8^th^ Concession East Road Drain under a report by .E. O. LaFontaine dated May 23, 1990 which resulted in substandard work being done by the contractor.

2. An Order declaring that the Respondents, or either of them, failed to pursue available remedies to recover damages from the contractor, its surety, the engineer, or others who may have been responsible in law for the substandard work.

3. An Order declaring that the Appellant has suffered damages as a result of the substandard work in the amount of $100,000 for which the Respondents, or either of them, are liable in law.

4. An Order declaring that the procedure to be followed in this matter shall, with necessary modification, be as set out in the Rules of civil Procedure for the conduct of an action in the Ontario Court (General Division), with the Appellant being required to serve a document equivalent to a Statement of Claim within thirty (30) days.

5. Other relief as may be permitted.

The Tribunal asked counsel for arguments on whether it should proceed with hearing the issues or defer to the Referee.

Mr. Courey, counsel to Mr. Hape, urged the Tribunal to proceed with the hearing. He argued that Mr. Hape has to mitigate any damage that has occurred and so he initiated this report in an effort to halt the erosion. Mr. Courey argued that it is necessary for the Tribunal to determine that the repair work is for the purpose of repairing the erosion damage to the drain. He said by determining the work necessary and setting the assessments the Tribunal would be defining the amount of damages Mr. Hape has suffered. He said he was asking the Tribunal to make a finding that the work was required as a result of the past work on the drain not as an improvement to the outlet or a benefit to Mr. Hape. He argued that the issues of allowances provided for crop damages and land taken and the location of the borrow pit for clay for the construction are in the perview of the Tribunal and can be decided at this hearing.

Mr. Marshall argued that the Tribunal should proceed with the hearing. He said that the Tribunal hearing is only to deal with the report of Mr. Peralta. It will settle issues such as the necessity of the work, and how the costs are to be allocated and assessed against the owners within the drainage area. This is the only determination the Tribunal can make and this is only one of the aspects before the Referee.

Mr. Marshall told the Tribunal that Colchester South will be asking to be made a plaintiff in the Hape Motion before the Referee.

The Tribunal considered the submissions of the parties and the March 27, 1998 report prepared by Mr. Peralta. The report does two things. It recommends a repair for the problem and who should pay the cost of the repair. These two items are the same issues that the Referee must decide in the action of Carl Hape. Also in the report, there is allegation of negligence on the part of Colchester North in failing to supervise the work, allegations of negligence on the part of the engineer and contractor in performing the work, under the 1991 report. The Referee has jurisdiction to determine these matters. If the Referee finds damages and responsibility then he also has to determine the best and least expensive repair. The Referee may well determine a different repair than the one presented by Mr. Peralta. The Tribunal decided it should not proceed with this hearing and decide what work is necessary, what the costs are, and who should pay but should defer to the Referee. In making this decision the Tribunal is fully aware that it is open for the Referee to order the Tribunal to proceed, and if so ordered, the Tribunal will proceed. The Tribunal is not dismissing the appeals. The Tribunal stands adjourned to await the outcome of the motion at the Referee. In the opinion of the Tribunal, proceeding with this hearing would be an unnecessary waste. The evidence before the Referee may have to be duplicated or may be different from what is presented here and the Tribunal does not want two different decisions on the same issues. Furthermore, the appeals to the Tribunal by the other owners in the watershed will be affected by the decision of the Referee and the Tribunal feels these appeals should be postponed as well.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal is adjourned to a date to be determined

2. It is ordered that there be no order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Tilbury, Ontario this 27th, day of August, 1998