Outlet North Marsh Drain (RE), 2001 ONAFRAAT 22

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

Outlet North Marsh Drain Municipality of Chatham-Kent

Outlet North Marsh Drain (RE) [Preliminary Decision] 2001 ONAFRAAT 22

Drainage Act

DATE OF DECISION:

April 12, 2001

2001-22

2001 ONAFRAAT 22

Outlet North Marsh Drain [Preliminary Decision]

Municipality of Chatham-Kent

IN THE MATTER OF THE STATUTORY POWERS OF PROCEDURES ACT R.S.O. 1990, CHAPTER S.22.

AND IN THE MATTER OF: A request for review of a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 29 of the Rules of Procedure from the decision of the Ontario Drainage Tribunal on the Outlet of the North Marsh Drain in the Municipality of Chatham-Kent.

Before:

John C. Taylor, Q.C., Vice Chairman

The Background

The engineer’s report which is the subject matter of this Appeal was filed with the Municipality under date of June 5, 1998. The last sittings of the Court of Revision was held some time in February, 1999. The first appeal to the Tribunal was with respect to the decision of the Court of Revision filed by one ratepayer.

The appeal came on for a hearing before the Drainage Tribunal on July 21, 2000. It appears from the record that the principal complaint was not necessarily only directed at assessment but rather directed at the report itself. The panel of the Tribunal hearing that appeal, allowed an amendment to the appeal so as to include an appeal against the report under the provisions of Section 48 of the Drainage Act. The issues then raised by the appellants, who seemed to have been supported by a number of other upstream owners, took serious issue as to whether the need for the repairs were really caused by the use of the drain as an outlet for upstream lands or whether the causes for the repairs were primarily the need for erosion protection to a nearby home near the Outlet. The appellants also raise the issue of whether waters backed up from the flooding of the Thames River itself into the North Marsh Drain Outlet were the cause of the erosion. It is not certain whether the Tribunal felt that the engineer, though supporting the report, was caught off guard by these new allegations. Nevertheless, the Tribunal could not reach a conclusion without giving the Municipality’s engineer the opportunity to rebut the evidence presented by the appellants. This necessitated in the adjournment of the hearing to a new date on September 25, 2000. On that date the engineer led rebuttal evidence including a report by outside engineers on the stability of the lands near the home requiring protection, as well as presented a further witness with qualified background to justify the decisions and judgments which the engineer made in his original report. Also the Municipality employed a solicitor to represent the Municipality and defend the report.

The result of the Tribunal hearing was to adopt the engineer’s report as presented and with only minor adjustments. It did make a special benefit assessment to the property owned by one O’Neil (Roll No. 1-106) raising that property’s assessment from $2,370.00 to $30,000.00. For comparison purposes, the original benefit assessment for this property equaled 1.5% of the total cost of the project while the benefit of the assessment made by the Tribunal represented 18% of the original cost of the project. On the surface this would seem to be a substantial victory to appellants.

The Tribunal did not assess any specific costs against the appellant or against any other party. As a matter of course, all costs associated with the drainage works are to be borne by the drainage works. Unfortunately, the appeal to the Tribunal resulted in close to an additional $25,000.00 to the costs of the report. These broken down are as follows:

Solicitor: $ 3,638.00

Outside Report: 1,685.00

Geologist: 6,100.00

Printing an assessment mailing: 1,411.00

Additional engineering costs: 11,500.00

The Tribunal not having made any specific direction or order with respect to these additional costs, these new costs have to be borne by the ratepayers on the drain. In the end it would seem that no one is better off financially as a result of the appeal. The original appellant has now submitted a request to the Tribunal that its decision be reviewed. The rules of practice and procedure adopted by this Tribunal provide for a review of the decision. This rule is codified in Rule 29 which contains some twenty-six different provisions. Some of these are quoted as follows:

29.01 The Tribunal may at any time correct a typographical error, grammatical error, error of calculation, misstatement, ambiguity, technical error or other similar error which appears in a decision or order of the Tribunal without recourse to this Rule and without prior notice to the parties to an appeal.

29.04 The Tribunal may review a final decision or order at the request of a party to an appeal or on its own initiative.

29.05 Any person, other than a party to an appeal, may request the Tribunal to review a final decision or order with leave of the Tribunal.

Evaluation of a request for review

29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including;

(a) whether there is significant new evidence which was not available at the time of the original appeal;

(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(d) the extent to which any party to the appeal or any other person will be affected by the review process; and

(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.

Consideration of requests for review

29.13 The Chair of the Tribunal, or a Vice-Chair designated by the Chair, shall consider each request for review of a final decision or order and decide whether a review should be conducted.

29.14 The Chair, or the Vice-Chair who considers the request, may consult with the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review.

29.15 The Chair may request the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review to consider the request and make the decision to review or not to review it.

29.16 The Chair, Vice-Chair or other member or members of the Tribunal who considers a request for review may have regard to the record of the hearing of the appeal or motion in addition to any material filed by the requester and any other party to the appeal.

29.17 The Tribunal may refuse a request to review a final decision or order without seeking submissions from any other party to the appeal.

29.21 The Tribunal shall not accept any further submissions without its permission.

29.22 A request for review may be granted in whole or in part.

29.23 If the Tribunal decides to review one of its final decisions or orders it may attach conditions, add other parties or make procedural directions to govern the review process.

Procedure for a review

29.24 Unless otherwise ordered, a review of a final decision or order of the Tribunal shall be conducted orally.

29.25 A review shall be conducted by a panel of the Tribunal designated by the Chair.

29.26 On a review the Tribunal may confirm, vary, suspend or cancel the final decision or order under review.

I have been designated by the acting Chairman of the Agriculture, Food and Rural Affairs Appeal Tribunal to “evaluate the request for review” and to “consider the request for review”.

While the original panel of the Tribunal is authorized under this rule to review its own decision, members of that panel do not feel that that would be appropriate in this case.

The power given to a Tribunal to review its own decision is a somewhat unusual power. This is perhaps because generally there is no power of appeal from a decision of the Ontario Drainage Tribunal. While there are certain provisions in the Drainage Act that allow a limited number of appeals from decision of the Drainage Tribunal to the Drainage Referee, most of the authority under the Drainage Act given to the Tribunal is not reviewable or appealable to any other body except where a dissatisfied party may invoke provisions for judicial review. It is perhaps because of this lack of appeal procedure that in recent years the Statutory Powers and Procedures Act has developed rules intended to govern various administrative Tribunals set up in the Province. Rule 29 is part of the rules authorized by the Statutory Powers and Procedures Act rather than by the Drainage Act. My interpretation from reading the Statutory Powers and Procedures Act and these rules generally, is that the power to review a decision is really not intended to be an opportunity for a dissatisfied participant to appeal the decision of the Tribunal. The Ontario Drainage Referee has emphasized in a number of his decisions that the Drainage Act is intended to be remedial and has been designed to be a process that will bring speedy resolution to disputes between landowners, Municipalities and other parties with respect to works undertaken under that Act. The Tribunal procedure is designed to be a summary procedure at which principally laymen are expected to participate. The use of lawyers and other professionals is intended to be minimal. Moreover, once a Municipality deems that a drainage works should be carried out or a repair or an improvement taken, the procedure should be sufficiently brief so that the drainage works can be put into effect at the earliest opportunity. It is for these reasons that I interpret the power to review as one that should be exercised very sparingly. As the costs of drainage works are not borne by the Municipality at large but rather these costs are targeted against a limited number of property owners, the whole appellate and review procedure has to be simplified so that unwarranted costs are not downloaded on the specific group of ratepayers who are affected.

The whole cost of drainage works has risen in recent years. Most dramatic among these are the engineering costs for the preparation of the report. The Tribunal has seen these rise from what was generally a twenty to twenty-five percent (20-25%) of a drainage works project to thirty-five to fifty percent (35-50%) of the project costs. As this particular appeal demonstrates, when appeals are taken from the adoption of drainage reports by Municipalities, either to the Tribunal level or the Referee’s level, the associated costs can have serious financial consequences to the affected landowners. As well, the delays in implementing the project bring on additional direct and indirect financial consequences.

For the reasons set out above, and other reasons, a request for a review of a decision should be allowed only in exceptional cases. In the absence of a clear palpable error in the decision under review, there should be a demonstrable error or some other form of injustice present. On making a careful review of the reasons relied upon by the appellants or requestors of the review they have not made a prima-facie case that would justify allowing the request for review to proceed further. The challenges raised to the decision of the Tribunal by the requestors were, for the most part, made or raised at the two days of hearing conducted by the original panel of the Tribunal. The Municipality, through its engineer and solicitor, brought forth reasonable and convincing evidence that the project and the drainage work as designed were needed and the expense justified. It is obvious that the panel of the Tribunal that conducted the hearing gave serious consideration to the challenges to the report raised by the appellants. The additional evidence presented by the Municipality and the engineer to support its report has met the challenges put forth by the appellants. Unfortunately, the costs associated with meeting those challenges were surprisingly high. While the Tribunal is given the power to order the manner in which costs are to be paid, it did not in this case levy those costs specifically against the appellant. Nor did the Tribunal feel that the general rule under Section 118 of the Drainage Act should be altered with the result that, these costs are to be added to the costs of the works itself. If the review was to proceed there would obviously be additional costs both in solicitor’s time and engineer’s time, let alone the indirect costs to the Province in reconstituting a Tribunal panel to consider the review.

In the interest of bringing finality to this proceeding and avoiding additional consequential damages in the delay in carrying out the drainage works, I have come to the conclusion that the original decision of the Tribunal should not be disturbed. I do not find any palpable error in the decision, nor do I find any particular injustice that would warrant the continuation of the appeal process.

Order

It is ordered that the request for review of the decision of the Tribunal made on the 16th day of October, 2000, with respect to the outlet of the North Marsh Drain in the Municipality of Chatham-Kent be denied.

Dated at Tilbury, Ontario this 12th day of April, 2001.