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:
Fekete Drain Township of North Dorchester
Fekete Drain (RE) 2000 ONAFRAAT 20
STATUTE:
Drainage Act
HEARING:
September 7, 1997
DATE OF DECISION:
September 7, 2000
2000-20
NEUTRAL CITATION:
2000 ONAFRAAT 20
Fekete Drain Township of North Dorchester
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 Agriculture Food and Rural Affairs Appeal Tribunal (the Tribunal) by M. & N. Sauro requesting the Tribunal review its July 23, 1999 decision on appeals from the decision of the Court of Revision and from the March 9, 1999 engineer’s report on the Fekete Drain in the Township of North Dorchester.
Before:
Andrew Wright, Vice-Chair.
DECISION OF THE TRIBUNAL
This application was considered by the Tribunal on September 7, 1997
The Background
On July 14, 1999 Andrew Wright, Herb Todgham and Nick Doelman sat as a panel of the Tribunal to hear the appeals of M. & N. Sauro under Section 54 (assessment) and Section 48 (allowances) of the Drainage Act (the Act) from the decision of the Court of Revision and from the March 9, 1999 report of John Spriet on the Fekete Drain. The appointments of Mr. Todgham and Mr. Doelman expired in February 2000.
On August 2, 2000 M. and N. Sauro wrote to the Tribunal requesting reconsideration of the decision of the Tribunal. Since Andrew Wright is the only member of the original panel remaining appointed to the Tribunal he reviewed this request following the normal Tribunal procedures as set out in the Tribunal decision on the W. W. Turner Reconsideration Decision dated November 21, 1997 and outlined as follows:
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.
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?
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?
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?
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 their application Mr. and Mrs. Sauro set out the following grounds as the basis for their request for reconsideration:
The validity of the petition. Mr. and Mrs. Sauro question whether the petition is sufficiently signed. They say that petition they received from the township engineer is different from the petition that they obtained from another source.
The value assessed to their woodlot. At the hearing they requested an allowance for trees destroyed as part of the construction of the drain. After the hearing was complete and the decision issued Mr. and Mrs. Sauro obtained evidence from a professional forester valuing the trees to be removed at $520 on the stump. They seek compensation for this value.
The value of benefit assessed against their land is to high and there is no value to land. The drain as-built pools water behind the spoil pile and the land is wetter now than before construction.
The drain was built in the wrong location. The drain ought to be moved closer to the worked land so that the clearing required for the drain joins the already cleared field increasing the cultivation area.
Costs incurred by Mr. and Mrs. Sauro in preparation for the appeal and subsequent advice. They want this cost totaling $3,414 charged not against the drain but against the engineer and/or the municipality.
In reviewing the current application the Tribunal notes that:
The original decision on this appeal was issued July 23^rd^, 1999. Subsequently the municipality passed the by-law and constructed the project following the orders of the Tribunal. None of the evidence provided by Mr. and Mrs. Sauro now is evidence that they could not have provided at the original hearing had they chosen to do so. The value of the trees could have been estimated in a manner similar to the presentation being made now. The cost incurred by Mr. and Mrs. Sauro was known at the time and considered by the Tribunal in its original decision. The location of the drain was to be staked prior to construction in consultation with Mr. and Mrs. Sauro, if that was not done it is too late now that construction is complete to complain about the location. Any objection that Mr. and Mrs. Sauro had to the drain location should have been brought to the attention of the engineer and drainage superintendent prior to the start of construction.
After careful consideration of the evidence filed and the submissions made the Tribunal decided to deny the request to reconsider its July 23^rd^, 1999 decision.
The Tribunal was not convinced by the submission that a reconsideration hearing is warranted in the circumstances
Dated at London, Ontario this 7^th^ day of September, 2000.