Carl Hape v. Town of Essex, 1999 ONAFRAAT 33

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 Town of Essex

8^th Concession East Drain (RE) 1999 ONAFRAAT 33

STATUTE:

Drainage Act

HEARING:

December 3, 1999

DATE OF DECISION:

December 15, 1999

1999-33

NEUTRAL CITATION:

1999 ONAFRAAT 33

8^th Concession East Drain Town of Essex

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 Sections 48 and 54 of the Drainage Act from the March 27^th, 1998 report of Nick Peraulta on the 8^th Concession East Drain in the Township of Colchester South (now the Town of Essex)

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 Town of Essex.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of Essex in Essex, Ontario on Friday December 3, 1999. Mr. Carl Hape appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act from the March 27^th, 1998 report of Nick Peraulta on the 8^th Concession East Drain in the, Town of Essex.

Jerry Marion Clerk of the Town of Essex performed the duties of the clerk of the Tribunal.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the March 27^th, 1998 engineer’s report by Nick Peraulta on the 8^th Concession East Drain, Town of Essex parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The appeal first came before the Tribunal at a hearing in the Township of Colchester South held Thursday August 20^th, 1998. At that time there were 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. After considering the submissions of the parties the Tribunal decided not to proceed with the appeal but to defer to the Drainage Referee so the issues of negligence and damages could be determined. The Referee conducted his hearing on the matter on 16^th day of September, 1999. In his decision the Referee states:

“I am making this award to Mr. Hape payable by the Municipality of the Town of Essex independent of whether the work contemplated in the Peralta Report is proceeded with or not. At the Hearing before me the Drainage Engineer, Mr. Peralta, was not called by Counsel. Therefore I was not afforded the advantage of expert professional testimony and was unable to make a decision as to the adequacy of the Peralta Report. I therefore leave that determination to the Ontario Drainage Tribunal when it proceeds with its Hearing pursuant to Section 48 and Section 54 of the Drainage Act. However, I would urge it to take into consideration my award of damages to Mr. Hape in their deliberations to ensure that he does not have the advantage of double recovery.”

At the commencement of the present hearing the Tribunal was informed by the parties that the issues under appeal had been settled. Therefore, the Tribunal was not afforded an opportunity to delve into the adequacy of the proposed work, nor the assessment of the costs, as contemplated by the Referee. The parties filed with the Tribunal the following Minutes of Settlement:

Minutes of Settlement Between The Corporation of the Town of Essex and Carl Hape

1. The assessment schedule is amended as set out herein.

2. The borrow pit is to be relocated on the lands of the appellant Carl Hape, at Part Lot 17 Concession 6 Town of Essex; on the condition that the soil is of comparable quality to the jeddo clay requirement as set out in the report: failing which the original report as it relates to the borrow pit will stand.

3. The contractor shall gain access to the lands of Carl Hape from County Road #18 using the existing farm access bridge located east of the existing homestead. Contractor to follow the route to the working corridor, along a 12 metre wide strip, located adjacent to the existing fence south of County Road #18, east and south of the existing farmstead. Access corridor to be levelled and graded upon completion of the works.

4. Working corridor shall be 12 metres, not to include woodlot area, along the drain.

The Assessment Schedule attached to the Minutes of Settlement contains the following amendments:

The Value of Special Benefit shown on page 16 of the report charged against Pt. Lot 17, Con 6 Roll Number 240-012 is reduced from $12,000 to $7,478 and the Value of Special Benefit shown on page 17 of the report charged against Ferris Sideroad is increased from $35,000 to $39,522. Totals are also amended accordingly.

The parties indicated that they were anxious to proceed with the construction of the project. Consequently, at the hearing, the Tribunal announced its decision to accept the Minutes of Settlement proposed by the parties and directed that:

1. The engineer is to make the necessary modifications in the report and tender documents to put the Minutes of Settlement into effect.

2. The Clerk of the Town of Essex is to modify the assessments in the By-law to put into effect the Minutes of Settlement.

3. It will not be necessary to circulate the amended by-law or assessment schedules since the only parties affected by the Order were present at the hearing.

This decision is the written confirmation of the Order already issued.

ORDER OF THE TRIBUNAL

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

1. The Minutes of Settlement between the Town of Essex and Carl Hape executed December 3, 1999 are adopted by the Tribunal as the settling of the appeals of Carl Hape under Sections 48 and 54 of the Drainage Act.

2. The engineer is to make the necessary modifications in the report and tender documents to put into effect the Minutes of Settlement as shown above.

3. The Clerk of the Town of Essex is to modify the assessments in the By-law to put into effect the Minutes of Settlement as shown above.

4. It will not be necessary to circulate the amended by-law or assessment schedules since the only parties affected by the Order were present at the hearing.

5. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

John Taylor

Vice-Chair

Dated at Hawkesbury this 15^th day of December 1999.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of Essex in Essex, Ontario on Friday December 3, 1999. Mr. Carl Hape appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act from the March 27^th, 1998 report of Nick Peraulta on the 8^th Concession East Drain in the, Town of Essex.

Jerry Marion Clerk of the Town of Essex performed the duties of the clerk of the Tribunal.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the March 27^th, 1998 engineer’s report by Nick Peraulta on the 8^th Concession East Drain, Town of Essex parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The appeal first came before the Tribunal at a hearing in the Township of Colchester South held Thursday August 20^th, 1998. At that time there were 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. After considering the submissions of the parties the Tribunal decided not to proceed with the appeal but to defer to the Drainage Referee so the issues of negligence and damages could be determined. The Referee conducted his hearing on the matter on 16^th day of September, 1999. In his decision the Referee states:

“I am making this award to Mr. Hape payable by the Municipality of the Town of Essex independent of whether the work contemplated in the Peralta Report is proceeded with or not. At the Hearing before me the Drainage Engineer, Mr. Peralta, was not called by Counsel. Therefore I was not afforded the advantage of expert professional testimony and was unable to make a decision as to the adequacy of the Peralta Report. I therefore leave that determination to the Ontario Drainage Tribunal when it proceeds with its Hearing pursuant to Section 48 and Section 54 of the Drainage Act. However, I would urge it to take into consideration my award of damages to Mr. Hape in their deliberations to ensure that he does not have the advantage of double recovery.”

At the commencement of the present hearing the Tribunal was informed by the parties that the issues under appeal had been settled. Therefore, the Tribunal was not afforded an opportunity to delve into the adequacy of the proposed work, nor the assessment of the costs, as contemplated by the Referee. The parties filed with the Tribunal the following Minutes of Settlement:

Minutes of Settlement Between The Corporation of the Town of Essex and Carl Hape

1. The assessment schedule is amended as set out herein.

2. The borrow pit is to be relocated on the lands of the appellant Carl Hape, at Part Lot 17 Concession 6 Town of Essex; on the condition that the soil is of comparable quality to the jeddo clay requirement as set out in the report: failing which the original report as it relates to the borrow pit will stand.

3. The contractor shall gain access to the lands of Carl Hape from County Road #18 using the existing farm access bridge located east of the existing homestead. Contractor to follow the route to the working corridor, along a 12 metre wide strip, located adjacent to the existing fence south of County Road #18, east and south of the existing farmstead. Access corridor to be levelled and graded upon completion of the works.

4. Working corridor shall be 12 metres, not to include woodlot area, along the drain.

The Assessment Schedule attached to the Minutes of Settlement contains the following amendments:

The Value of Special Benefit shown on page 16 of the report charged against Pt. Lot 17, Con 6 Roll Number 240-012 is reduced from $12,000 to $7,478 and the Value of Special Benefit shown on page 17 of the report charged against Ferris Sideroad is increased from $35,000 to $39,522. Totals are also amended accordingly.

The parties indicated that they were anxious to proceed with the construction of the project. Consequently, at the hearing, the Tribunal announced its decision to accept the Minutes of Settlement proposed by the parties and directed that:

4. The engineer is to make the necessary modifications in the report and tender documents to put the Minutes of Settlement into effect.

5. The Clerk of the Town of Essex is to modify the assessments in the By-law to put into effect the Minutes of Settlement.

6. It will not be necessary to circulate the amended by-law or assessment schedules since the only parties affected by the Order were present at the hearing.

This decision is the written confirmation of the Order already issued.

ORDER OF THE TRIBUNAL

6. The engineer is to make the necessary modifications in the report and tender documents to put into effect the Minutes of Settlement as shown above.

7. The Clerk of the Town of Essex is to modify the assessments in the By-law to put into effect the Minutes of Settlement as shown above.

8. It will not be necessary to circulate the amended by-law or assessment schedules since the only parties affected by the Order were present at the hearing.

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

9. The Minutes of Settlement between the Town of Essex and Carl Hape executed December 3, 1999 are adopted by the Tribunal as the settling of the appeals of Carl Hape under Sections 48 and 54 of the Drainage Act.

10. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Hawkesbury this 15^th day of December 1999.