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: Allanport Road Municipal Drain City of Thorold
Allanport Road Municipal Drain [Interlocutory Decision] 2001 ONAFRAAT 20
STATUTE: Drainage Act
HEARING: March 22 and March 23, 2001
DATE OF DECISION: April 2, 2001
2001-20
NEUTRAL CITATION: 2001 ONAFRAAT 20
Allanport Road Municipal Drain [Interlocutory Decision] City of Thorold
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 Agriculture, Food and Rural Affairs Appeal Tribunal by Carole Robinson (91869 Ontario Incorporated), Rick Fischuk, Armando Bruni, Helmut Rempel, Belfa and James Thomas, Leo and Liisa Harju, Canadian Waste Handlers Niagara, Anthony De Santis In Trust, Karl Kuane, Provincial Construction (Niagara Falls) Ltd., Hann Manufacturing Inc., Jacob and Reintje Jager, Estate of Henry Hauser Vanderburgh, John and Catherine Grimo, Helen Gratto, Regional Trenching Inc., Frank Van Schie, Shelby Sheet Metal and Mechanical, Nelson Des Roches, John Gratto, Hydraserv Limited, Diversified Alloyweld Inc., 459770 Ontario Limited, 646643 Ontario Limited, 1032529 Ontario Inc., John and Katherine Ruggi and Fred Westlake under Section 54 of the Drainage Act, and by CYTEC Canada Inc., Belfa and James Thomas, Karl Kuane, and John and Catherine Grimo under Section 48 of the Drainage Act from the Final Engineer's Report (revised July 31, 2000) on the Allanport Road Municipal Drain in the City of Thorold.
Before: Andrew Wright, Vice Chair; Jack Young, Vice Chair; Andy Koopal, Member.
Appearances: Kent Schachowskoj, P. Eng. Bryon Weibe, P. Eng. Peter Lingard, counsel to Leo Harju, appellant and John Grimo, appellant Helen Gratto, appellant. Bob Robinson, representing 91869 Ontario Incorporated, appellant Rick Fischuk, appellant. George Slaney, representing Cytec Canada Inc., appellant Helmut Rempel, appellant Belfa Thomas, appellant. Malcolm Vanderburgh, representing Henry Hauser estate, appellant John Grimo, appellant Jennifer Noss, (late appellant). William Mostowy, assessed landowner.
INTERIM DECISION OF THE TRIBUNAL
These appeals were heard in Thorold, Ontario on March 22, 2001 and March 23, 2001. The hearing into this matter was a continuation of a hearing that commenced on March 29, 2000 and continued on March 30, 2000, and March 31, 2000. In March 2000, the Tribunal heard appeals from assessed landowners who had appealed under Section 48 and Section 54 of the Drainage Act. The Tribunal issued an interim order dated April 5, 2000 which provided for the engineer to submit a revised report on the Allanport Road Municipal Drain. The Order provided that any assessed landowner, wishing to appeal as contemplated under Section 48 or 54 of the Drainage Act, could appeal directly to the Tribunal after the adoption of the revised report by the Council of The Corporation of the City of Thorold. In March 2001, appeals from the revised engineer's report were heard by the Tribunal.
John Bice, Clerk of The Corporation of the City of Thorold, performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer's revised report dated July 31, 2000 on the Allanport Road Municipal Drain, City of Thorold, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
At the onset of the Hearing, Mr. Lingard made a preliminary motion to the Tribunal with respect to the validity of the petition for the upstream portion of Branch No. 8 of the Allanport Road Municipal Drain.
Mr. Lingard submitted that the engineer had not complied with the Tribunal's Interim Order of April 5th, 2000 as it pertains to the upper portion of Branch No. 8, above the Landco property (Roll No. 26-210-09). The Interim Order required the engineer to delete from the report and from the proposed work that portion of Branch No. 8, unless a petition, sufficient for the purposes of the Drainage Act, was signed by owners of land requiring drainage and that petition was filed with the municipality by 4:00 p.m. April 25, 2000.
Mr. Lingard's submission was that there was no petition filed within the time prescribed and that therefore the engineer should have deleted the upper portion of Branch No. 8 above the Landco property (Roll No. 26-210-09) from the report and from the proposed work. Having heard the evidence of the engineer about the area requiring drainage in connection with this upper portion of Branch No. 8, the Tribunal is satisfied that there was no petition that met the requirements of the Drainage Act, for the purposes of the Interim Order, filed within the time prescribed.
Accordingly, in accordance with the Tribunal's Interim Order of April 5th, 2000, the upper portion of Branch No.. 8 above the Landco property (Roll No. 26-210-09) is to be deleted from the report and from the proposed work.
SECOND INTERIM ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
That the work on Branch No. 8 on the properties upstream of the property identified by Roll No. 26-210-09 is to be deleted from the proposed work.
That the watershed of the drainage area at the south east corner of Barron Road and Allanport Road is to be revised to reflect the natural drainage of that area.
The engineer is directed to prepare a document for the Tribunal recommending changes to the report and assessment schedules in the Allanport Road Municipal Drain Final Engineer's Report, revised July 31, 2000, to reflect the deletion from the watershed of the affected properties and the deletion of the upper portion of Branch No. 8 of the proposed drain.
This recommendation document is to be delivered to the Tribunal office by April 17, 2001.
The recommendation document is to be circulated to each landowner that would be affected by the recommendations if implemented, together with a copy of this Second Interim Order. Such circulation is to be by mail, courier or hand delivery and is to be completed by April 24, 2001.
Any landowner that would be affected by the recommendations if implemented and who has an objection to the recommendations will have an opportunity to have that objection heard by the Tribunal if such affected landowner files a notice of objection, with written reasons, with the Tribunal by noon, May 11, 2001.
If there are objections to the recommendations, the Tribunal will hold a Hearing, which will be open to the public, on Tuesday, May 16, 2001 commencing at 9:30 a.m. in the Council Chambers of the City of Thorold, 8 Carleton Street, Thorold, ON. If there are no objections, the Tribunal will proceed to issue its final decision.
Dated at London, Ontario this 2nd day of April, 2001.